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1901.

QUINN

v.

LEATHEM.

I pass now to consider the effect of the Statute 38 & 39 Vict. c. 86. This Act clearly recognizes the legality of strikes and lockouts up to a certain point. It is plainly legal now for workmen to combine not to work except on their own terms. On the other Lindley. hand, it is clearly illegal for them or any one else to use force or threats of violence to prevent other people from working on any

Lord

terms which they think proper. But there are many ways short
of violence, or the threat of it, of compelling persons to act in
a way which they do not like. There are annoyances of all sorts
and degrees picketing is a distinct annoyance, and if damage
results is an actionable nuisance at common law, but if confined
merely to obtaining or communicating information it is rendered
lawful by the Act (s. 7). Is a combination to annoy a person's
customers, so as to compel them to leave him unless he obeys the
combination, permitted by the Act or not? It is not forbidden by
s. 7; is it permitted by s. 3? I cannot think that it is. The
Court of Appeal (of which I was a member) so decided in Lyons
v. Wilkins, in the case of Schoenthal, which arose there, and is
referred to in the judgement of Walker, L. J., at p. 99 of the
printed judgements in this case. This particular point had not to
be reconsidered when Lyons v. Wilkins1 came before the Court
of Appeal after the decision in Allen v. Flood2. But Byrne, J.,
modified the injunction granted on the first occasion 3 by confining
it to watching and besetting. He might safely have gone further
and have restrained the use of other unlawful means; but the strike
was then over, and his modification was not objected to, and cannot
be regarded as an authority in favour of the appellant's contention.
It must be conceded that if what the defendants here did had
been done by one person it would not have been punishable as
a crime. I cannot myself see that there was in this case any trade
dispute between employers and workmen within the meaning of
s. 3.
I am not at present prepared to say that the officers of
a trade union who create strife by calling out members of the
union working for an employer with whom none of them have any
dispute can invoke the benefit of this section even on an indictment
for a conspiracy.

But assuming that there was a trade dispute within the meaning
2 See [1899] I Ch. 255.
3 See [1899] I Ch. at pp. 258, 259.

1 [1896] I Ch. 811.

1901.

QUINN

v.

Lord

of s. 3, and that an indictment for conspiracy could not be sustained in a case like this, the difference between an indictment for a conspiracy and an action for damages occasioned by a conspiracy is LEATHEM. very marked and is well known. An illegal agreement, whether carried out or not, is the essential element in a criminal case; the Lindley. damage done by several persons acting in concert, and not the criminal conspiracy, is the important element in the action for damages 1. In my opinion, it is quite clear that s. 3 has no application to civil actions: it is confined entirely to criminal proceedings. Nor can I agree with those who say that the civil liability depends on the criminality, and that if such conduct as is complained of has ceased to be criminal it has therefore ceased to be actionable. On this point I will content myself by saying that I agree with Andrews, J., and those who concurred with him. It does not follow, and it is not true, that annoyances which are not indictable are not actionable. The law relating to nuisances, to say nothing of the law relating to combinations, shows that many annoyances are actionable which are not indictable, and the principles of justice on which this is held to be so appear to me to apply to such cases as these.

Allen v.

My Lords, I will detain your lordships no longer. Flood is in many respects a very valuable decision, but it may be easily misunderstood and carried too far.

Your lordships are asked to extend it and to destroy that individual liberty which our laws so anxiously guard. The appellant seeks by means of Allen v. Flood 2, and by logical reasoning based upon some passages in the judgements given by the noble lords who decided it, to drive your lordships to hold that boycotting by trades unions in one of its most objectionable forms is lawful, and gives no cause of action to its victims although they may be pecuniarily ruined thereby.

My Lords, so to hold would, in my opinion, be contrary to well-settled principles of English law, and would be to do what is not yet authorized by any statute or legal decision.

In my opinion this appeal ought to be dismissed with costs.

LORDS HALSBURY, L. C., SHAND, BRAMPTON, and ROBERTSON agreed, and the appeal was dismissed.

1 See 1 Wm. Saund. 229 b, 230, and Barber v. Lesiter, 7 C. B. (N. S.) 175. 2 [1898] A. C. I.

L

1882.

THE

DEFAMATION.

I. LIBEL.

1882. THE CAPITAL AND COUNTIES BANK, LIMITED v. HENTY, L. R. 7 App. Cas. 741.

A libel is a written statement, published without lawful justification, calculated to convey to those to whom it is published an imputation on the plaintiff, injurious to him in his trade or calling, or holding him up to hatred, contempt, or ridicule. The words of a libel are to be construed prima facie according to their ordinary and natural meaning; but the plaintiff may allege by an innuendo, and prove that, under the circumstances of their publication, they were calculated to convey a special meaning which is libellous.

It is the duty of the judge to say whether the words are capable of bearing the meaning ascribed to them by the innuendo, or any defamatory meaning, but when the judge is satisfied of that, it is for the jury to say whether the words do in fact bear that meaning.

APPEAL from a judgement of the Court of Appeal (Brett and Cotton, L. JJ., Thesiger, L. J., dissenting) in favour of the defendants, CAPITAL reversing a judgement of the Common Pleas Division (Grove and COUNTIES Denman, JJ.).

AND

BANK, LD.

v.

HENTY.

LORD BLACKBURN.-My Lords, the plaintiffs' claim is thus stated: (1) The plaintiffs are bankers, and the defendants are brewers. (2) The defendants falsely and maliciously wrote and published of the plaintiffs the letter following: "Messrs. Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank (late the Hampshire and North Wilts). Westgate, Chichester, December 2, 1878." Meaning thereby that the plaintiffs were not to be relied upon to meet the cheques drawn on them, and that their position was such that they were not to be trusted to cash the cheques of their customers.'

The statement of defence sets out the circumstances under which the defendants allege that the letter was published, and proceeds: '(9) The defendants thereupon, as they lawfully might do, sent to

1882.

THE

AND

CAPITAL COUNTIES

BANK, LD,

their said tenants the letter in paragraph 2 of the statement of claim set out, which is the writing and publishing complained of, and for which the present action is brought. The defendants deny that the said letter under the circumstances aforesaid is a libel. (10) The defendants say that the occasion of sending the said letter to their tenants as aforesaid was privileged. (11) The defendants HENTY, deny the innuendo alleged in paragraph 2 of the statement of claim, and say that the said letter does not bear the said alleged meaning.

On the trial evidence was given on both sides, and on the proof being completed the case was left to the jury, who did not agree, and were discharged. The plaintiffs desire that the case should go for trial before another jury. The defendants' contention is, that they are entitled to judgement on the ground that, if the jury had found in favour of the plaintiffs every circumstance relating to the publication which the evidence could prove, and even though the jury had found that, in their opinion, the letter was libellous, the Court ought to come to the conclusion that the letter published under those circumstances was no libel, and acting on its own conclusion give judgement for the defendants, not setting that verdict aside as not satisfactory, but letting it stand and giving judgement for the defendants, notwithstanding that verdict. If this is right, it follows that the case ought not to be sent to another jury.

The decision of the cause depends, first, on the question what is the province of the Court in an action for libel, and whether, where the writing is such that opinions might differ as to whether it is a libel or not, the Court can give judgement for the defendant, on the ground that, though the jury have found that, in their opinion the writing is a libel, the Court do not think it made out to be a libel; that is a question of great public interest; secondly, whether, supposing that this can be done, the state of the evidence in this case as to the publication is such that the Court ought to come to the conclusion that this is no libel. This is of importance to the parties, but except in so far as it may illustrate the meaning of the first general proposition, it is not of general importance. I have had and still have very great difficulty in making up my mind on this second branch of the case. I will first state my opinion on the first question.

A libel for which an action will lie, is defined to be a written

v.

Lord

Blackburn.

1882.

THE

AND

BANK, LD.

v.

HENTY.

Lord

Blackburn.

statement published without lawful justification, or excuse, calcu lated to convey to those to whom it is published an imputation on CAPITAL the plaintiffs, injurious to them in their trade, or holding them up COUNTIES to hatred, contempt, or ridicule. It must be shown by evidence that there was a writing, and that it was published. I shall afterwards say something as to what publications are privileged, so as to afford a lawful justification or excuse for the publication, though calculated to convey a libellous imputation. But, 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.

I think that from the earliest times it has, by the law of England, been the province of the Court to say whether words published in writing were a libel or not; and in order that a Court of error might have before it the materials for enabling it to say whether the decision of the Court below was right or not, the plaintiff was, by the old rules of pleading, required to place all those materials, on which he relied, upon the record. The words themselves must have been set out in the declaration or indictment, in order that the Court might be able to judge whether they were a libel or not. And this still remains the law: see Bradlaugh v. The Queen1; Harris v. Warre2.

In construing the words to see whether they are a 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. The question 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 1 L. R. 3 Q. B. D. 607. 2 L. R. 4 C. P. D. 125.

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