Dwyer v Esmonde

• Jurisdiction: Ireland
• Judgment Date: 02 March 1878
• Date: 02 March 1878
• Court: Chancery Division (Ireland)

Exchequer.

Before PALLES, C. B., FITZGERALD and DOWSE, BB.

DWYER

and

ESMONDE.

Armstrong v. TurquandUNK 9 Ir. C. L. R. 32.

Maher v. PurcellUNK 13 Ir. C. L. R. 133.

Fitzpatrick v. PineUNK 13 Ir. C. L. R. 32.

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

Murphy v. HalpinUNK Ir. R. 8 C. L. 127.

O'Donoghue v. HusseyUNK Ir. R. 5 C. L. 124.

Senior v. Medland 4 Jur. (N. S.) 1039.

Warren v. WarrenENR 1 Cr. M. & R. 250.

Ruckley v. KiernanUNK 7 Ir. C. L. R. 75.

Laughton v. The Bishop of Sodor and ManELR L. R. 5 P. C. 495.

Hebbs v. WilkinsonENR 1 F. & F. 608.

Konig v. RitchieENR 3 F. & F. 413.

Atkinson v. CongreveUNK 7 Ir. C. L. R. 109.

Stannus v. FinlayUNK Ir. R. 8 C. L. 264.

Harrison v. BushENR 5 E. & B. 348.

Libel Privileged occasion Excess.

542 THE IRISH REPORTS. [I. R. D W Y ER v. ESMONDE (1). LW-Privileged occasion-Excess. Where a party publishes charges affecting the conduct and character of another, the public at large have, as against him, such a right of judgment upon these charges as renders that public interested in everything material to their judgment being just and true, and the party aggrieved, having an inteÂÂrest in vindicating his character, has a privilege to publish matter of vindication and defence, and all such other matter as is material to the public forming such just and true judgment. But where, on the face of the answering publication, statements appear which are in the nature of affirmative and independent charges of misconduct unconnected with and having no bearing upon the conduct of the party aggrieved, that is not mere matter of excess, the party aggrieved has no priviÂÂlege in relation to these statements, and a plea relying on such privilege is bad on demurrer. DEMURRER to the fifth defence to each count of the summons and plaint. The summons and. plaint contained three counts; the first was as follows : That the Defendant falsely and maliciously wrote and published of and concerning the Plaintiff the words and matters following, that is to say : " And now as regards the case of John Dwyer (meaning the Plaintiff), I ejected simply for non-payment of rent John Dwyer from his farm at Kylebeg, 60 Irish acres, 68 yearly rent, on the 8th of April, 1874, under decree granted for possesÂÂsion ; the family consisted of himself and two sisters. Upon the morning of the 9th inst.-next day-the bailiffs, on returning from Kilkenny, where they had passed the night, found the two' Dwyer girls (meaning the Plaintiff's sisters) sitting before a fire, having forced the lock of the door, and J. Dwyer in ne of the out-houses. When I heard of this, I wrote from my residence here to the sub-sheriff to arrange a day that I should go to Kilkenny to assume once more through his agency the possession of my property, which I did some time afterwards (meaning thereby that the Plaintiff had wrongfully and unlawfully made a forcible entry into the premises of the Defendant, and wrongfully and (1) Before PLLLES, C. B., FITZGERALD and DOWSE, BB. unlawfully and forcibly detained the same from the Defendant). For nine Exchequer. months I was unable, though I advertised, to procure a caretaker to place in 1877. charge of the house and farm (meaning thereby that the Plaintiff had by inti- DWYER xnidation prevented anyone from becoming caretaker of said place). On visiting V. Kylebeg farm some months afterwards, I discovered that John Dwyer had. ES SONDE. entered upon my farm, and got a meadow of 4i Irish acres mown. He carried eff the hay when fit, and sold it. It was generally believed that I would have had him imprisoned for this outrage (meaning thereby that the general belief of the people in the neighbourhood in which he the Plaintiff was living was, that he the Plaintiff had been guilty of an indictable offence, and should be punished by imprisonment for his act). I did not, however, take any action against Dwyer for this crime (meaning that the Plaintiff was guilty of crime, and was a criminal), but I firmly resolved never to admit him as a tenant upon my estate. Dwyer's two sisters, I am informed, although by their father's will they were left charges on the farm as their portions, were completely ignored. by Dwyer, and were compelled to emigrate to New Zealand or Australia on a free emigration ticket, although Dwyer had a good sum of money in his pocket at the time, partly acquired through their industry in the farm (meaning thereby that the Plaintiff had wrongfully, unlawfully and fraudulently retained. sums of money which were, under their father's will, payable by the Plaintiff to his said sisters, and that they were thereby compelled to emigrate, and did emigrate, on a free emigration ticket, although the Plaintiff then had it in his power to pay them the said sums of money, and had actually the same, or a considerable portion thereof, then in his possession). Dwyer is and has been living at one of my neighbouring tenants' houses since his ejectment from Kylebeg. I received an offer for the farm about a year and a-half ago, through Mr. Aitkins of Dawson-street, for a client of his, and in whose favour I had instructed my solicitor to draw out a lease ; before however the lease had been executed, Mr. Aitkins' client received a notice that it would. not be safe for him to have anything to say to the farm (meaning thereby that the Plaintiff resided near the said farm of Kylebeg, and had thereby an opportunity of watching and obtaining information as to any person or persons who proposed to become tenant of said farm, so as to prevent persons becoming tenants of said farm, and that through the Plaintiff's instrumentality a threatening notice had been feloniously sent to the said person who had made the offer for the said farm, and the said person had been thereby prevented from becoming tenant of the Defendant for the said farm). The second count was substantially the same, omitting only the various innuendoes. The third count was confined to the statement of the DefenÂÂdant that the Plaintiff had taken up his residence near the farm in question, and that a notice had been sent, warning an intending 544 THE IRISH REPORTS. [I. R Exchequer. lessee from having anything to say to the farm, and concluded 1877. with the following innuendo :- DWYER Meaning thereby that the Plaintiff had wickedly and feloniously sent, or EMMA. caused to be sent, a threatening notice to the said person who had made the offer for the said farm, for the purpose of deterring such person from becoming the tenant of the Defendant for the said farm, and had thereby deterred the said person from becoming such tenant for same. To each of these counts the Defendant pleaded the following-defence, amongst others : That before the alleged grievance the Plaintiff was tenant to the Defendant of a dwelling-house and farm of land, with their appurtenances, situate at Kylebeg, in the county of Kilkenny, at the yearly rent of 68 ; and by reason of the non-payment of said rent the Defendant, before the alleged grievance, obtained in the Court of the Chairman of Quarter Sessions of the said county a decree for the possession of the said premises, in an action of ejectment for non-payment of rent, by civil-bill, instituted by the Defendant in the said Court, which said decree was afterwards, and before the alleged grievance, delivered to the sheriff of the said county to be executed ; and afterwards, and. before the alleged grievance, an election was intended and about to be holden in and for the county of Waterford, of a Member to serve in Parliament for the said last-mentioned county, and the Defendant declared himself a candidate for the said intended election ; and afterwards, and before the alleged grievance, a certain document entitled, " Address of the Kilkenny Tenant Farmers' AssoÂÂciation to the Tenant Farmers of Waterford," containing divers false charges. against the Defendant as such a candidate as aforesaid, and imputing to him gross misconduct and harshness as a landlord, especially in relation to his said. proceedings against the Plaintiff, and. his conduct towards the Plaintiff with. reference to the said dwelling-house and farm of land, was caused by the Plaintiff and other persons to be printed and published, and was printed and. published in a certain public newspaper, to wit, " The Freeman's Journal," then having extensive circulation in the said county of Waterford, and among the voters thereof ; whereupon the Defendant, before the said. intended election, in answer to the said charges and imputations, and in defence of himself in. relation thereto, wrote and published the words and matter in the first count complained of, bond fide and without malice, and in a letter addressed and sent to the Editor of the said newspaper for publication therein, and believing the said words and matter to be true, partly from matters and things within the Defendant's own knowledge, and partly from information received by the Defendant from Peter M'Dermott, Under-sheriff of the said County of Kilkenny [other persons named], and the Plaintiff, and not otherwise, the Defendant then, for the reasons in that behalf aforesaid, having an interest in writing and Von. XI.) COMMON LAW SERIES. publishing the said words and matters as aforesaid, and the said Editor and Exchequer. voters then having for the like reason a corresponding interest in receiving and 1877. reading the same, which is the alleged grievance. DWYER To this defence the Plaintiff demurred, on the grounds: . ESMONDE. That the defence did not show or aver that the occasion of publishi g the words complained of in any of the counts was a privileged occasion, or that the publication was privileged or justified; because the defamatory matter comÂÂplained of related to different subjects from those mentioned in the defence as having been contained in the Address : because the charges mentioned in the defence as having been contained in the Address were not answered by the defamatory...