seduction. 462 TORTS. [BOOK IV. Action for be shown as consequent on the seduction, since that is in theory the ground of the action. It has accordingly been held that where the person seduced is of such tender years as to be incapable of any service, no damage can be recovered (1). When, however, loss of service, however trifling, is once proved, and the foundation of the action thus laid, the damages that may be awarded are by no means limited to an amount commensurate with the actual loss of service proved or inferred, but may be given to compensate the parent for distress of mind and dishonour to the family. The jury are to take into consideration the situation in life of the parties, and the plaintiff may give evidence that the defendant was paying his addresses to the daughter as an honourable suitor (2). As was said in a modern case by Blackburn, J. (3): “In form the action is by the master having a right to the services by reason of the wrongful act of the defendant, but though in form this is the reason of the action, the damage by loss of service is in reality merely nominal; and so long ago as Lord Ellenborough's time, as he says in Irwin v. Dearman (4), the practice had become inveterate of giving to the parent or person standing in loci parentis damages beyond the mere loss of service in respect of the loss aggravated by the injury to the person seduced. In effect the damages are given to the plaintiff as standing in the relation of parent, and the action has at present no reference to the relation of master and servant beyond the mere mechanical point on which the action is founded: for in ninety-nine cases out of a hundred the natural guardian is the master to whom the service is due at the time." (1) Hall v. Hollander, 4 B. & C. 660. (2) See authorities collected, Addison on Torts, 6th ed. p. 589, et seq. (3) Terry v. Hutchinson, L. R. 3 Q. B. 599. (*) 11 East, 24. CHAPTER IV. DEFAMATION. It is a fundamental principle of the law that a man is entitled Principle to its protection in respect of his good name and reputation as of the law. much as he is entitled to be protected in respect of his person and property (1). "Words," says Mr. Odgers, "which produce any perceptible injury to the reputation of another are called 'defamatory,' and, if false, are actionable" (2). and libel. The wrong of defamation is either slander or libel. Libel is Slander addressed to the eye, slander to the ear. False or defamatory words when spoken are slander. The same words when written and published constitute a libel. The writing may be on any substance, and made with any instrument, and the libel may be not only by writing, but also by print or signs. Thus it has been held to include a caricature, a chalk mark on a wall, a statue, &c., &c. The law has always recognised a great difference between the two classes of offences. Libel is a criminal offence as well as a wrong. Slander on a private individual is a civil wrong only (3). Libel, said the late Lord Justice Lush, on an individual is, Libel. and has always been, regarded as both a civil injury and a criminal offence. The person libelled may pursue his remedy for damages, or prefer an indictment, or by leave of the Court a criminal information, or he may both sue for damages and indict. It is ranked amongst criminal offences because of its supposed tendency to arouse angry passion, provoke revenge, Slander and libel. Words and thus endanger the public peace, but the libeller is not the less bound to make compensation for the pecuniary or other loss or injury which the libel might have occasioned to the person libelled (1). Another distinction between the case of slander and libel is this, that in the case of libel the plaintiff may succeed in his action without proving any damage, while in the case of slander, with the exceptions pointed out hereafter (infra), special damage must be shewn in order to entitle him to succeed. The following, among other, reasons have from time to time been judicially given for this distinction between libel and slander : (1.) That a libel is permanent, and may circulate amongst innumerable hands; (2.) That it shews greater malignity on the part of its author than a slander; (3.) That it is more likely to lead to a breach of the peace (2). Spoken words are actionable per se, i.e., without proof of any actionable special damage resulting from them as a proximate consequence in the following cases : per se. (1.) Where the words impute a criminal offence (3). (2.) Where they impute a contagious disease which would cause the person having it to be excluded from society. (3.) Where they convey a charge of unfitness, dishonesty, or incompetence in an office, profession, or trade, tending to prejudice a man in his calling. (4.) It was held in an old case (*) that words tending to the disherison of a person, e.g., the words "thou art a bastard were actionable, "for by reason of these words, the plaintiff may be in disgrace with his father and uncle, and they, conceiving a jealousy of him touching the same, may disinherit him; and though they do not, yet the action lies for the damages which may ensue." It has been held actionable to say of a barrister "he is a dunce, and will get little by the law." "Thou art no lawyer, thou canst not make a lease; thou hast that degree without desert; they are fools that come to thee for law." "He hath as much law as a jackanapes." "He has deceived his clients, and revealed the secrets of his cause." It has been held actionable to say of an attorney that he is (1) R. v. Holbrook, 4 Q. B. D. 46. 609; Ringwood on Torts, p. 164. (*) Humphreys v. Stansfield, Cro. Car. 469. a rogue, and doth maintain himself and his wife and children Slander. by cheating, to say that he has been guilty of bribery or of professional misconduct, and that he ought to be struck off the rolls. But it was held not actionable to say of an attorney," he has defrauded his creditors and has been horsewhipped off the course at Doncaster," as these words were not concerned with matters within the scope of his professional duties (1). Mere general abuse such as "cheat," "rogue," or knave," is not actionable, but to say "you cheat your clients," would be actionable (2). 66 The law with regard to libel received an extremely careful Libel. consideration in a well-known case which was decided by the House of Lords, in 1882. In that case the facts were as follows: A firm of brewers were in the habit of receiving in payment from their customers cheques on various branches of a bank, which the bank cashed for the brewers' convenience at a particular branch. The brewers, having had a squabble with the manager of that branch, sent a printed circular to a large number of their customers, who knew nothing of the squabble, in the following terms: "H. & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the bank." The circular became known to other persons; there was a run on the bank and loss inflicted. The bank then brought an action against the brewers for libel, on the ground that the circular imputed insolvency to them. The House of Lords decided, affirming the decision of the Court of Appeal, that the action was not maintainable (3). An admirable statement of the law on the subject was given in the judgment of Lord Blackburn, from which the following points are extracted. A libel for which an action will lie, is defined to be a written statement published without lawful justification, or excuse, calculated to convey to those to whom it is published an imputation on the plaintiffs, injurious to their trade, or holding them up to hatred, contempt, or ridicule. It must be shewn by evidence that there was a writing, and that it was published. (1) Doyley v. Roberts, 3 Bing. (N.C.) 835; 5 Scott, 40; 3 Hodges, 154. (2) Alleston v. Moor, Hetl. 167; and see Bishop v. Latimer, 4 L. T. 775; Odgers on Libel, 2nd ed. pp. 76, 77; Ringwood on Torts, p. 165. (3) The Capital and Counties Bank VOL. I. Limited v. George Henty & Sons, 2 H Libel. In construing the words to see whether they are libel, the Court is, where nothing is alleged to give them an extended sense, to put that meaning on them which the words would be understood by ordinary persons to bear, and say whether the words so understood are calculated to convey an injurious imputation. It is not whether the defendant intended to convey that imputation; for if he, without excuse or justification, did what he knew or ought to have known was calculated to injure the plaintiff, he must (at least civilly) be responsible for the consequences, though his object might have been to injure another person than the plaintiff, or though he may have written in levity only. As was said in the opinion of the judges delivered to the House of Lords during the discussion of Fox's Libel Bill (1792), no one can cast about firebrands and death, and then escape from being responsible by saying he was in sport (1). Independently of all questions as to privilege, the manner of the publication, and the things relative to which the words are published, and which the person publishing knew, or ought to have known, would influence those to whom it was published in putting a meaning on the words, are all material in determining whether the writing is calculated to convey a libellous imputation. There are no words so plain that they may not be published with reference to such circumstances, and to such persons knowing these circumstances, as to convey a meaning very different from that which would be understood from the same words used under different circumstances. "A publication calculated to convey an actionable imputation is primâ facie a libel; the law, as it is technically said, implying malice, or as I should prefer to say the law being that the person who so publishes is responsible for the natural consequences of his act. But if the occasion is such that there was either a duty, though perhaps only of imperfect obligation or a right to make the publication, it is said that the occasion rebuts the presumption of malice, but that malice may be proved, or I should prefer to say the defendant is not answerable for it so long as he is acting in compliance with that duty or exercising that right, and the burden of proof is on those who allege he is not so acting" (2). (1) The original of this phrase, which is derived from a much earlier source than last century, is to be found in the Proverbs xxvi. 18, 19, where it is applied to another description of tort: "As a mad man who casteth firebrands, arrows, and death, so is the man that deceiveth his neighbour, and saith, Am not I in sport"? (2) Capital and Counties Bank v. Henty, 7 App. Cas. 787. |