PART IV.

CHAPTER XII.

Introductory averments.

It is clear to demonstration, therefore, that there is no cause of action against the husband. He is not liable for the wrong; but he is joined only by reason of the universal rule, that the wife during coverture cannot be either a sole plaintiff or a sole defendant. The reason does not apply where there has been a divorce a vinculo matrimonii. The woman is no longer under coverture. She is remitted to her former name and station, and is perfectly capable of suing and being sued as if she had never been married: consequently, the necessity of joining the husband no longer exists. One can well recognise the expediency of making a legislative provision" (20 & 21 Vict. c. 85, ss. 25, 26) "for the case of a decree of judicial separation; for there, notwithstanding the sentence, the relation of husband and wife is not entirely dissolved. But there was no need of legislation in the case of a sentence which dissolves the marriage."

The Married Women's Property Act does not relieve the husband from any liability which he at present bears for his wife's wrong doing, either before or after marriage; although it contains a clause, enacting that husbands, married after the Act came into force, shall not be liable for their wives' debts contracted before marriage. (a)

The first Common Law Procedure Act (1852) has rendered the declarations in actions of libel much less technical than indictments and criminal informations are, even at the present day.

The reader will remember what was said (b) as to the necessity of introductory averments in indictments, and the failures of prosecutions for the want of averments to support the innuendos, as, for instance, the innuendo that the libel meant to charge the prosecutor with setting fire to the defendant's barn full of corn, which was bad for want of an averment that the prosecutor had a barn and full of

corn.

The 61st section of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76) enacts, that "in actions of libel and slander the plaintiff shall be at liberty to aver that the words or matter complained of were used in a defamatory sense, specifying such defamatory sense, without any prefatory averment to show how such words or matter were used in that sense; and such averment shall be put in issue by the denial of the alleged libel or slander; and where the words or matter set forth, with or without the alleged meaning, show a cause of action, the declaration shall be sufficient."

(a) 33 & 34 Vict. c. 93, s. 12.

(b) Ante, pp. 516, 522, 523.

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In the schedule B. No. 33, is given the following form of declaration in libel: "That the defendant falsely and maliciously printed and published of the plaintiff in a news- Form of declapaper called‹the words following, that is to say, ration.

he is a regular approver under bankruptcies; 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."

The declaration would, it seems, be good without the Allegation of allegation of malice.

This was decided in two very early cases. The report of the first case(a) does not contain the grounds of the judgment, but in the second (b) "it was adjudged no error because the words themselves were slanderous and malicious."

malice not necessary.

The publication should be alleged to be false; although Allegation of there are authorities which tend to show that even that is

not necessary.

In an anonymous case in Styles (p. 392), Rolle, C. J., is reported to have said "that in an indictment a thing must be expressed to be done falso et malitiose, because that is the usual form; but in a declaration these words are not necessary." By some writers it is supposed that all he meant was, that, after verdict, the omission of those words would be helped in a declaration. (c) In an action for slander of title, it was objected that the declaration did not allege the publication to be false, but Lord Ellenborough held that the allegation that the paragraph or advertisement was "malicious, injurious, and unlawful," was sufficient. (d)

Although the omission of the words "falsely and maliciously" may not be fatal to the declaration, yet they are in the form given in the schedule to the Common Law Procedure Act, 1852; and it has always been usual, and is proper, to insert them.

fulsehood.

The declaration must show a publication, but no technical Publication. words are necessary: it is sufficient if such matter be stated as amounts to a publication, without the formal word "published."

In the case of Baldwin v. Elphinston (e) it was held that an allegation of "printing and causing to be printed" was a

(a) Arkingsal v. Denny (Moore, 459).

(b) Mercer v. Sparks (Ow. 51, S. C. Noy. 35).

See Wms. Saunders, 242, a (n. 2); 2 Saunders' Pl. & Ev. by Lush, 914. (d) Rowe v. Roach (1 M. & S. 309).

(e) 2 W. Bl. 1037.

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PART IV.

sufficient allegation of publication, on the ground that, though CHAPTER XII. printing a libel may be an innocent act, yet, unless qualified by circumstances, it shall prima facie be understood to be a publishing, as it must be delivered to the compositor and the other subordinate workmen. Lord Denman, however, in Watts v. Fraser, (a) upon a question of rejection of evidence, refused to act upon that case, saying that it "did not follow, as of course, from a work being printed, that the party sending it forth employed a compositor or other workman."

"Of and concerning" the plaintiff.

Setting out libel

Whole libel need not be set forth.

The declaration must state that the libel was published "of and concerning the plaintiff;" and this colloquium is necessary, although it be stated that the defendant published the libel with intent to impute the offence charged in it to the plaintiff. (b)

The Common Law Procedure Act seems to have made no difference in this respect. The statement in the marginal note to Hemmings v. Gasson, (c) that the declaration need state no colloquium, refers to the colloquium of the inducement and not of the plaintiff.

The libel itself must be set out in the declaration: it is not sufficient to state the purport of it; (d) or that it is "in substance as follows."(e)

The ordinary mode is to state that the defendant published of and concerning the plaintiff the libellous matters, to the tenor and effect following; or that he "published of the plaintiff the words following."

The reason of this rule is, that the defendant is entitled to call for the judgment of the court on demurrer to the words of the libel, as to whether they amount to a libel.(ƒ)

The whole of the libel need not be set forth, but any passage which is complete in itself may be selected.(g)

Thus it was held sufficient to set out part of the index of the Quarterly Review, which professed to relate to a work

(a) 7 A. & E. 232. In this case it was held that the printer as well as the editor of a magazine was liable for a lithographic print, of a libellous character, contained in the magazine, though it was not printed by the printer; it being referred to in a part of the letter-press which was also libellous: (S. C. 7 C. & P. 369.)

(b) 1 Wms. Saunders, 242, b (n. 3), and Clement v. Fisher (7 B. & C.459). (c) E. B. & E. 346.

(d) Wood v. Brown (6 Taunt. 169); Gutsole v. Mathers (1 M. & W. 502). (e) Wright v. Clements (3 B. & Ald. 503).

(f) See, in addition to the cases referred to in the two preceding notes, Cook v. Cox (3 M. & S. 110); Solomon v. Lawson (8 Q. B. 823); Wood v. Adam (6 Bing. 481).

(g) Rex v. Brereton (8 Mod. 328); Rutherford v. Evans (6 Bing. 458,

published by the plaintiff; although it was objected that, as the index was only a reference to the body of the work, it was necessary that the count should contain a reference to the whole, as otherwise that would appear to be unqualified which was in fact subject to material qualification. Abbott, C.J., ruled that there was no ground for the objection, saying: "If one part of a book cannot be understood without reference to another, then you must set out both; but if it is intelligible without, then you need not. Suppose the matter referred to in the index had not been found in the volume. The index may contain a separate libel."(a)

But if two separate and divided parts of the publication are set out, they must not appear to be an entire and continuous part of the writing from which they are taken, but should be introduced after this manner: "in a certain part of which said libel there was and is contained, &c., and in a certain other part of which said libel there was and is contained, &c." (b)

PART IV. CHAPTER XII

sense must not.

It must, however, be borne in mind that the libel cannot Part material to be garbled, by omitting that which is material to the sense be omitted. of the part inserted. If the setting out the whole would enable the defendant to move in arrest of judgment, the omission of any part would be a fatal variance. (c)

Where the plaintiff, in an action against a newspaper. proprietor, averred that the defendant printed and published a libel on him-"as and purporting to be a letter written from A. to R. O'C., viz., 'I have sold all my property to B.; yet it may still go on in my name; and the rents are to be transmitted to H. Bell, Esq., 40, Charterhouse-square. Mr. Bell has been for some time past confined in England on a charge of high treason;'"-and it appeared at the trial that the paragraph in the newspaper which contained the libel stated that in a debate in the Irish House of Commons, several years before, the Attorney-General had read a letter from A. to R. O'C. in which were the words, "I have sold all my property to B., yet it may still go on in my name, and the rents are to be transmitted to Hugh Bell, Esq., 40, Charterhouse-square;" and then followed the libellous words italicised above, without any parenthesis or brackets to distinguish them from the letter, in the middle of which they were printed-it was held by the court that the libellous words were part of the speech of the Irish Attorney-General, and were not stated in the newspaper to (a) Buckingham v. Murray (2 C. & P. 47). (b) Tabart v. Tipper (1 Camp. 353).

(c) Rutherford v. Evans (6 Bing. 459; 4 C. & P. 74).

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CHAPTER XII.

be part of the letter, and that the publisher had not made a substantive statement of his own respecting the libellous fact stated of the plaintiff, but only asserted that the Irish Attorney-General had made such a declaration; and that the true description of the libel should have been, that the defendant purported to publish a speech of the AttorneyGeneral of Ireland, in which was contained the libellous matter. Bailey, J., said: "The question is not whether the declaration might not have been so framed as to entitle the plaintiff to recover upon the facts proved at the trial, but whether he has made out in proof that which is stated in this declaration. It is a very different thing to assert a thing as in the party's own knowledge, and to say that another, whom he names, has told him so. The persons who hear the one must conclude that the party pledges his own knowledge of the fact, which in the other case they do not. Now, here the plaintiff takes upon himself, in the first four counts, to prove that the libel purported to be contained in a letter from A. to R. O'C.; but the libel proved does not state that there was any such letter containing such a charge, or that the writer pledged his own knowledge of there being such a letter, but only that the AttorneyGeneral in Ireland had asserted the fact of the plaintiff having been confined, &c. . . . . There is no assertion by the defendant that the letter so read was a genuine letter, or that he pledged his knowledge of there being such a letter containing the libellous charge. Still less is the general allegation made out, that the defendant had asserted that the plaintiff had been for some time past confined in England on a charge of high treason; for, looking at the paper, it only appears that the defendant had stated that the AttorneyGeneral for Ireland had said so. Now, though it may be libellous to state that another person said such and such things of the plaintiff and in some cases it may be an aggravation of the libel to state it in that way-yet still it is a different libel, and the charge is open to a different defence." (a)

To the same effect is the case of Cartwright v. Wright.(b) There the declaration omitted two references, which were contained in the libellous paragraph, to Cobbett's writings, and it was held a fatal variance; as that which appeared in the declaration to be the defendant's observation was, in fact, Mr. Cobbett's assertion respecting the plaintiff. (c) . When the declaration sets out a publication which is only (a) Bell v. Byrne (13 East. 554, 563). (b) 5 B. & Ald. 615. (c) See also Tabart v. Tipper (1 Camp. N. P. 353).