1882. THE CAPITAL AND BANK, LD. v. HENTY. Lord Selborne, L. C. calculated to lead reasonable men to understand them in a libellous sense. I should myself be very sorry if such were the law. In Sturt v. Blagg1 Wilde, C. J., said: 'It is the duty of the COUNTIES judge to say whether a publication is capable of the meaning ascribed to it by an innuendo; but when the judge is satisfied of that, it must be left to the jury to say whether the publication has the meaning so ascribed to it.' If the judge, taking into account the manner and the occasion of the publication and all other facts which are properly in evidence, is not satisfied that the words are capable of the meaning ascribed to them, then it is not his duty to leave the question raised by the innuendo to the jury. In deciding on the question whether the words are capable of that meaning he ought not, in my opinion, to take into account any mere conjectures which a person reading the document might possibly form, as to some out of various motives or reasons which might have actuated the writer, unless there is something in the document itself, or in other facts properly in evidence, which to a reasonable mind would suggest, as implied in the publication, those particular motives or reasons. The alleged libel, in the present case, is a printed circular sent through the post by the defendants (brewers at Chichester) to certain of their own tenants and customers, giving them notice that the defendants would not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank.' The meaning ascribed to this document by the innuendo is, 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 question is, whether there was evidence to be left to the jury in support of that innuendo. From the words, standing by themselves, it appears to me to be impossible to collect such a meaning, on any known principle of construction. By construction, merely, the only conclusion to be arrived at is, that they mean exactly what they say, viz., that the defendants had come to a resolution not to receive in payment of any moneys due or to become due to them, from the persons to whom that circular was addressed, cheques drawn on any of the branches of the plaintiffs' bank. For such a resolution they might have had various motives and reasons, good, bad, or indifferent. 1 1 10 Q. B. 908. 1882. THE AND บ. HENTY. Lord Selborne, L. C. There was no evidence of any extrinsic fact affecting the reputation or credit of the plaintiffs' bank at the time which could be connected with the circular, so as to give it a meaning to those who CAPITAL read it which it might not otherwise have had. I cannot but think COUNTIES that under the old system of pleading a statement of some extrinsic BANK, Ld. facts of this nature on the record would have been necessary to support the innuendo, having regard to the absence of any sufficient ground for it in the words of the document; and this for reasons not technical (Goldstein v. Foss1; Hearne v. Stowell2; Capel v. Jones3). And although no such matter of inducement need now be stated on the record, it seems to me that without some evidence of facts which, when connected with the words of the document, would justify the meaning imputed to it, such a case ought not to go to a jury. Lords WATSON and BRAMWELL concurred and Lord PENZANCE differed, and the appeal was dismissed. 1900. VIZETELLY v. MUDIE'S SELECT LIBRARY, LIMITED, Prima facie every one who disseminates a libel, whether innocently or not, is as liable to an action as the originator of it. There is, however, an exception in favour of one who innocently disseminates a book or newspaper when he neither knows nor ought to have known that such book or newspaper contained any libellous matter. Application for judgement or a new trial in an action tried before Grantham, J., with a jury. The action was for a libel contained in a book, copies of which had been circulated and sold by the defendants, who were the proprietors of a circulating library with a very extensive business. The defendants in their defence stated that, if they sold or lent the book in question, they did so without negligence, and in the ordinary course of their business as a large circulating library; that they did not know, nor ought they to have known, that it contained the libel complained of; that they did not know and had no ground for supposing that it was likely to contain libellous matter; and that under the circumstances so stated they contended that they did not publish the libel. The plaintiff had been employed by Mr. Gordon Bennett of the 1 6 B. & C. 154. 1900. VIZETELLY v. MUDIE'S SELECT LIBRARY, LIMITED. v. MUDIE'S LIBRARY, 1900. New York Herald to proceed as the head of an expedition to Africa VIZETELLY to search for Sir H. Stanley, who was then engaged in an expedition for the rescue of Emin Pasha, and to furnish news to the SELECT New York Herald on the subject. He met Stanley and Emin LIMITED. Pasha in Africa on their way down to the coast at a place called Msura; and subsequently sent off letters to Mr. Gordon Bennett. Messrs. Archibald Constable & Co., a well-known firm of publishers, in October, 1898, published in this country a book called Emin Pasha: his Life and Work, which was a slightly abridged English version of a work published in Germany that purported to be compiled from the journals, letters, and scientific notes of Emin Pasha and from official documents. It contained the following passage purporting to be an extract from Emin Pasha's diary: Vizetelly sent off three messengers to-day to the coast, each with a bulky letter. However, as he is not yet sober, he cannot surely have written them himself, and the solution of the problem is, as Dr. Parke tells us, simply that Stanley had the correspondence ready, and knocked it down to the highest bidder, Vizetelly, that is, Gordon Bennett, and quite right too.' This was the libel complained of. It was not suggested that the statements contained in it were true. The plaintiff on becoming aware of the libel brought an action for libel against Messrs. Constable and Co., which was settled by their paying £100 damages, apologizing, and undertaking to withdraw the libel from circulation. In the issue of the Publishers' Circular, a recognized medium for trade advertisements of the kind, for November 12, 1898, a notice was inserted to the effect that Messrs. Archibald Constable & Co. requested that all copies of vol. i. of The Life and Work of Emin Pasha might be returned to them immediately, as they wished to cancel a page, and insert another one in its place, and stating that they would of course defray the carriage both ways, if desired. A similar notice was inserted on the same date in the Athenæum newspaper, a well-known medium of communication among literary people. In March, 1899, it came to the plaintiff's knowledge that the defendants were lending copies of the work as originally published to subscribers, and also selling surplus copies of the same, and he thereupon commenced the action against them. It appeared that none of those engaged in the conduct of defendants' business had seen the before-mentioned notices in the Publishers' v. MUDIE'S LIBRARY, Circular and Athenæum, though the defendants took in those 1900. papers. Mr. A. O. Mudie, one of the defendants' two managing VIZETELLY directors, who was called as a witness for the defendants, gave evidence to the effect that the defendants did not know when they SELECT circulated and sold the book in question that it contained the LIMITED passage complained of. He stated that the books which they circulated were so numerous that it was impossible in the ordinary course of business to have them all read, and that they were guided in their selection of books by the reputation of the publishers, and the demand for the books. He said in cross-examination that there was no one else in the establishment besides himself and his co-director who exercised any kind of supervision over the books; that they did not keep a reader or anything of that sort; that they had had books on one or two occasions which contained libels; that that would occur from time to time; that they had had no action brought against them for libel before the present action; and that it was cheaper for them to run an occasional risk of an action than to have a reader. The learned judge in summing up in substance directed the jury to consider whether, having regard to the abovementioned evidence, the defendants had used due care in the management of their business. The jury found a verdict for the plaintiff, damages £100. The defendants applied for judgement or a new trial on the ground that there was no evidence on which a verdict could be found or judgement entered for the plaintiff, and also on the grounds that the judge insufficiently directed the jury on the question what amounted in law to the publication of a libel, and on the question of the burden of proof as to publication and of the duty of the defendants and their alleged negligence, and that the verdict was against the weight of the evidence. ROMER, L. J.-The law of libel is in some respects a very hard one. In the remarks which I am about to make I propose to deal only with communications which are not privileged. For many years it has been well settled law that a man who publishes a libel is liable to an action, although he is really innocent in the matter, and guilty of no negligence. That rule has been so long established as to be incapable of being altered or modified, and the Courts, in endeavouring to mitigate the hardship resulting from v. MUDIE'S LIBRARY, 1900. it in many cases, have only been able to do so by holding that, VIZETELLY under the circumstances of cases before them, there had been no publication of the libel by the defendant. The result, in my SELECT opinion, has been that the decisions on the subject have not been LIMITED, altogether logical or satisfactory on principle. The decisions in Romer,L.J. Some of the earlier cases with which the Courts had to deal are easy to understand. Those were cases in which mere carriers of documents containing libels, who had nothing to do with and were ignorant of the contents of what they carried, have been held not to have published libels. Then we have the case of Emmens v. Pottle, in which vendors of newspapers in the ordinary course of their business sold a newspaper which contained a libel. It was clear that selling a document which contained a libel was prima facie a publication of it, but the Court there held that there was no publication of the libel under the circumstances which appeared from the special findings of the jury, those findings being (1) that the defendants did not know that the newspapers at the time they sold them contained libels on the plaintiff; (2) that it was not by negligence on the defendants' part that they did not know that there was any libel in the newspapers; and (3) that the defendants did not know that the newspaper was of such a character that it was likely to contain libellous matter, nor ought they to have known so. Lord Esher, M. R., in this Court was of opinion that, though the vendors of the newspapers, when they sold them, were prima facie publishers of the libel, yet, when the special findings of the jury were looked at, the result was that there was no publication of the libel by the defendants. Bowen, L. J., put his judgement on the ground that the vendors of the newspapers in that case were really only in the same position as an ordinary carrier of a work containing a libel. The decision in that case, in my opinion, worked substantial justice; but, speaking for myself, I cannot say that the way in which that result was arrived at appears to me altogether satisfactory; I do not think that the judgements very clearly indicate on what principle courts ought to act in dealing with similar cases in future. That case was followed by other cases, more or less similar to it, namely, Ridgway v. Smith & Son 2, Mallon v. W. H. Smith & Son3, and Martin v. 1 L. R. 16 Q. B. D. 2 (1890) 6 Times L. R. 275. (1893) 9 Times L. R. 621. 354. 3 |