Barrett in Error v Long

• Jurisdiction: Ireland
• Judgment Date: 03 February 1846
• Date: 03 February 1846
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

BARRETT in Error

and

LONG.

Alexander v. AngleUNK 4 M. & P. 870.

Goldstein v. FossENR 6 B. & C. 154.

Ayre v. CravenENR 2 Ad. & El. 2.

Brayne v. CooperENR 5 M. & W. 249.

Robinson v. JermynENR 1 Price, 11.

Hawkes v. HawkeyENR 8 East, 427.

Roberts v. CamdenENR 9 East, 93.

Woolnoth v. MeadowsENR 5 East, 469.

Marshall v. EureENR 1 Dyer, 37, b.

In re Nolan 2 J. & S. 1.

May v. BrownENR 3 B. & C. 113.

AnonymousENR 11 Mod. 99.

Power v. Haydn S. & B. 386.

Harvey v. FrenchENR 1 C. & M. 11.

Rex v. Nolan 1 H. & B. 164.

Regina v. O'ConnellUNK 11 C. & F. 253.

Defries v. DaviesENR 7 C. & P. 112.

Jackson v. Adams 2 Scott, 599.

CASES AT LAW. 331 H. T. 1846. Exch. Cham. errbtaintr aambtr.. BARRETT in Error v. LONG. (In Error from the Common Pleas.) Feb. 3. THIS was an action brought by the plaintiff below against the In an action fora libel, if defendant, who was the proprietor of the Pilot newspaper, for a libel the inuendo published of him personally, and in the way of his trade, in that newspaper ; and this case came before this Court on a writ of error on a judgment of the Common Pleas in favour of the plaintiff in that Court. Three questions were raised and argued in this Court ; the the first of which was, that the third count of the declaration conÂÂtained no cause of action, and the judgment having been entered on the whole declaration, that it must be arrested. The second objection was to a challenge to one of the special jurors, on the ground of disqualification, by reason of his being a Town-councilor of the borough of Dublin ; and the third was to the reception of prior publications offered by the plaintiff as evidence of malice on the part of the defendant. The first objection was raised and argued in this Court for the first time ; but the two other objections were raised and argued on a bill of exceptions in the Court below, when that Court ruled them both in favour of the plaintiff.* The facts and circumstances of the case, as they appeared on the bill of exceptions, will be found fully reported in the 7th Irish Law Reports, 439-444. • Vide 7 Ir. Law Rep. 439. 332 CASES AT LAW. The third count, which was objected to, after stating that the plaintiff being a coachmaker, and exercising his said trade, had, " in "the course of his trade and business, received an order from the said " Lord Lieutenant to supply him with a carriage, to wit, &c., yet the " defendant, further contriving to injure the plaintiff in his said trade " and business, afterwards, to wit, on the 19th day of August 1844, "at, &c., did falsely and maliciously compose and publish, and caused " and procured to be composed and published, a certain other scanÂÂ" dalous, false and malicious libel of and concerning the said plaintiff " in his said trade and business, and of and concerning the said "plaintiff, containing therein certain false, malicious, and libellous "matter of and concerning him the said plaintiff in his said trade and "business as aforesaid, and of and concerning the plaintiff, to the " tenor and effect following-that is to say, What possessed Lord " Heytesbury, if he knew any thing about the country, or was not " under the spell of vile and treacherous influence, to make his first " visit, and that carefully puffed, to Long the coachmaker (meaning "thereby to the plaintiff) the other day ? If mere trade was his "object, he had several respectable houses open to him (meaning "thereby that the house of business of the said plaintiff was not a " respectable house in the trade ; and that he, the plaintiff himself, " was of such a character that he would not be visited in the way " of his trade and business except for some political, or party, or " other improper motive.)"' Sir Colman O'Loghlen and Jonathan Henn, for the plaintiff in error, contended, as to the first objection, that the inuendo in the third count was too large, and not warranted by the alleged libel; and that there was no libel stated in the declaration. The following cases were cited in support of this objection :-Alexander v. Angle (a); Goldstein v. Foss (b); Ayre v. Craven (c); Brayne v. Cooper (d); Robinson v. Jermyn (e) ; Hawkes v. Hawkey (f) ; Roberts v. Camden (g); Woolnoth v. Meadows (h). On the second point, in addition to the authorities cited in the Court below, Counsel for the plaintiff in error cited. Marshall v. Eure (i); In re Nolan (k). And on the third point, May v. Brown (1). (a) 4 M. & P. 870. (b) 6 B. & C. 154. (e) 2 Ad. & El. 2. (d) 5 M. & W. 249. (e) 1 Price, 11. (f) 8 East, 427. (g) 9 East, 93. (h) 5 East, 469. (1) 1 Dyer, 37, b. (k) 2 J. & S. I. (1) 3 B. & C. 113. CASES AT LAW. 333 Henry West and Napier, for the defendant in error-on the first objection, insisted that the inuendo was fully warranted by the alleged libel; and that, at all events, the first clause of it was unobÂÂjectionable, and the remainder might be rejected. The following authorities and cases were cited :-2 Starkie on Slander, 898; Anonymous (a); Power v. Haydn (b); Harvey v. French (c). On the second point, in addition to the authorities relied on in the Court below, Counsel cited Rex v. Nolan (d); Regina v. O'ConÂÂnell (e). And on the third point, Defries v. Davies (f) and Jackson v. Adams (g). JACKSON, J. This case comes before this Court, on a writ of error brought on, a judgment of the Court of Common Pleas. Three questions were raised and argued: the first was a question of pleading, which was not raised in the Court below ; and the second and third appear on a bill of exceptions, and were fully argued before the Court of ComÂÂmon Pleas, and a unanimous judgment pronounced in favour of the plaintiff. Of these two latter questions, the first of them respects a challenge to the poll of a special juror, on the ground that he was a Town-councillor of the borough of Dublin ; and the other arose on an objection to the admissibility of evidence tendered at the trial on the part of the plaintiff, and admitted by my Lord Chief Justice. I shall consider the questions on which we have to pronounce judgÂÂment, in the order in which they stand on the record, and as they were argued by Counsel. Two of them, at least, are of some imporÂÂtance, and present some novelty as well as difficulty. They have been most ably argued ; and there being some difference of opinion among the members of this Court, on some of the points, it becomes my duty, first, to state the opinion which I have formed on them. The first question arises on the pleadings. It is said that the third count of the declaration is bad, and. that the verdict being general, the damages entire, and a general judgment on the record, it must be reversed. The objections to the count in question are two-fold: first, that the matter complained of in it is not libellous; and secondly, that the inuendo is too wide. In order to sustain the first of these positions, viz., that the matter complained of is not libellous, it has been argued, by one of the Counsel, at all events, (a) 11 Mod. 99. (b) S. & B. 386. (c) 1 C. & M. 11. (d) 1 H. & B. 164. (e) 11 C. & F. 253. f) 7 C. & P. 112. ( g) 2 Scott, 599. 334 CASES AT LAW. that the word " respectable," which occurs in the libel, is too vague, and has no definite meaning ; and also, that, in truth, so far from disparaging and lowering the plaintiff in public estimation, what was said was complimentary to him, amounting to this, that there are other respectable houses, and that, therefore, the plaintiff's was a respectable house. The meaning depends altogether on the way the passage is read, whether an emphasis is thrown on certain words or not. As to the first ground of objection, viz., that it was no libel, I would observe, that the word " respectable," is well understood, and as referring to a trade, has a very important signification ; and moreÂÂover, that the jury have found that the words were used in the sense put on them by the inuendo, viz., "that the house of business of the plaintiff was not a respectable house in the trade ;" and the plaintiff has a right to complain of a statement that his house was not resÂÂpectable in his trade. Now, what is a libel ? It is as stated in 1 Starkie, 169, " A writing derogating from a man's character, " imputing bad actions or vicious principles, or tending to diminish " his respectability, or abridge his comforts, or expose him to disgrace " or ridicule ; in short, any false, malicious, personal imputation, " tending to alter the party's situation in society for the worse, is a " libel actionable with special damages." Thus, we find the word " respectability" used in this definition, showing that it has a definite and important meaning, and that to detract from it gives a cause of complaint. Secondly, it has been argued, that the inuendo is too wide. Now, it is observable that in the inducement to the declaration, the plaintiff complains of the matter as libellous to him personally, and also in the way of his trade ; and in the third count, after stating that "he (the Lord Lieutenant) had several respectable houses open to him," the plaintiff proceeds, "meaning thereby that the house of " business of the said plaintiff was not a respectable house in the " trade, and that the plaintiff himself was of such a character that he " would not be visited in the way of his trade and business, except " for some political, or party, or other improper motive." Now, I am quite of opinion, that the latter part of this inuendo is not warranted by any thing which appears in this declaration. There is no colloÂÂquium, or, more properly speaking, inducement to warrant the introduction of such new matter, and, therefore, the objection that it is too wide is well founded, if that objection cannot be otherwise got rid of. I think, however, that it may be considered that there are two inuendos, one of them referrible to the plaintiff in the way Of his trade, and the other to him personally. The first of these is...