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DETERMINED BY THE
COURT OF QUEEN'S BENCH,
AND BY THE
COURT OF EXCHEQUER CHAMBER
ON ERROR AND APPEAL FROM THE COURT OF QUEEN'S BENCI,
IN AND AFTER
MICHAELMAS TERM, XXXV VICTORIA.
Nov. 17, 1871.
JENNER and another v. A'BECKETT.
Law Reports, 7 Queen's Bench, 11. Libel – Defamation as to Goods manufactured by Plaintiff - Action, when main
tainable. Declaration, that the plaintiffs were manufacturers of bags, and manufactured a bag which they called the “ Bag of Bags," and the defendant printed and published, concerning the plaintiffs in their business, the words following:- “As wo have not seen the Bag of Bags, we cannot say that it is useful, or that it is portable, or that it is elegant. All these it may be, but the only point we can deal with is the title, which we think very silly, very slangy, and very vulgar; and which has been forced upon the notice of the public ad nauseam:
Held, on demurrer, by Mellor and Hannen, JJ., that it was a question for the jury whether the words did not convey an imputation on the plaintiffs' conduct in their business, and whether the language went beyond the limits of fair criticism.
By Lush, J., that the words could not be deemed libellous, either upon the plaintiffs or upon their mode of conducting their business.
DECLARATION that the plaintiffs carried on the business, (11 amongst other businesses, of manufacturers of bags, and in such business invented, manufactured, and sold for gain and reward in that behalf great numbers of a certain bag called the “Bag of Bags,” and the defendant, well knowing the premises, maliciously printed and published of and concerning the plaintiffs
in their said business, and of and concerning them in the manufacturing and selling of the said bags, in a certain periodical or paper called The Tornahawk, the false and defamatory words following: - "Novelty and enough. Let us premise our remarks by declaring that they are not a planned advertisement, and then let us declare that Messrs. Jenner and Knewstub " (meaning the plaintiffs), “ of St. James's Street, have introduced and largely advertised an article of their manufacture as the Bag of Bags ” (meaning the said bag so manufactured and sold by the plaintiffs). “As we have not seen the Bag of Bags, we cannot say that it is useful, or that it is portable, or that it is legant. All these it may be, but the only point we can deal vith is the title, which we think very silly, very slangy, and ery vulgar; and which has been forced upon the notice of the wublic ad nauseam.”
Demurrer, and joinder in demurrer.
Joyce (Steele with him) in support of the demurrer. The 12] words set *out in the declaration are not libellous. There is no imputation on the character of the plaintiffs; the language applies to the name of an article manufactured by them. If the words are defamatory, they disparage a chattel, and are to be governed by the rule applicable to slander of title; no action for which lies without special damage : Malachy v. Soper ("). Here there is no averment that special damage has been sustained. Evans v. Harlow (4) is a strong authority that the action will not lie. This case shows that a mere reflection on goods manufactured by a tradesman is not actionable; there must be something more; it must appear that the publication of the libel has prevented a sale of the goods, or has been otherwise injurious, either to the character or the business of the tradesman.
Parry, Serj. (J. O. Griffits with him), contra. The cases cited are not in point. Malachy v. Soper (') was a case of slander of title; in Evans v. Harlow (?), the defamatory words reflected on the utility of the goods manufactured by the plaintiff; here the imputation is on the conduct of the plaintiffs in giving a particular name to an article manufactured by them; and under the guise of slandering the bag, the defendant slanders the manu(') 3 Bing. N. C., 371.
( 5 Q. B., 624.
facturer. The question ought to be considered by a jury, whether the language used was not intended in an ironical sense, and whether the defendant did not mean to imply that the bag was neither portable, elegant, nor useful; and if this were so, intending purchasers would be deterred from buying it. Further, these words are actionable on the ground that they throw discredit upon a commodity in which the plaintiffs deal : Starkie on Slander, 3d ed., p. 161. And this case is governed by the principle on which it has been held actionable to say of a bookseller that he is in the habit of publishing immoral and foolish books : Tabart v. Tipper ().
[MELLOR, J., referred to Campbell v. Spottiswoode ().] Joyce, in reply.
MELLOR, J. I regret that a difference of opinion as to this declaration exists upon the bench ; and I may say, that in some portion of the language complained of, if defamatory at all, conveys an imputation *so slight, that if this portion alone (13 had been used, the plaintiffs would have no case to lay before a jury. The words to which I refer are these : “ As we have not seen the ‘Bag of Bags,' we cannot say that it is useful, or that it is portable, or that it is elegant; all these it may be.” If the writer had stopped there, I should have thought that those words could not be actionable without some allegation that they were intended and calculated to convey an impression that the bag was not portable, or useful, or elegant; and if no more had been alleged, I should have been indisposed to think that the declaration disclosed a cause of action. But we must consider the succeeding words, which are as follows: –“But the only point we can deal with is the title, which we think very silly, very slangy, and very vulgar, and which has been forced upon the notice of the public ad nauseam.” This may be a fair criticism on the conduct of the plaintiffs in giving such a title as “Bag of Bags” to an article sold by them; but I cannot help thinking that it is for a jury, and not for the Court, to consider whether these words do or do not go beyond the limits of fair criticism. The jury may think that this bag has been advertised ad nauseam, and that the object of giving it the name above mentioned is to attract buyers in a manner
(9) 1 Camp., 350.
(%) 3 B. & S., 769; 32 L. J. (Q. B)., 185.
that is, perhaps, untradesmanlike. I believe that if they take this view they will deem the criticism fair, and therefore justifiable. But I cannot say, as a matter of law, that the words do not convey an imputation upon the plaintiffs' mode of carrying on their business, and do not in effect allege that they have. done a silly, slangy, and vulgar act. A jury may think this language calculated to bring the plaintiff's into odium, and to disparage them in the opinion of the public in respect of the manner in which they conduct their business. I should be glad to see my way to a different conclusion, because actions of slander and libel, unless they are brought in respect of a serious charge, are not to be encouraged; but I cannot say that the declaration does not set forth matter for the consideration of a jury; and I cannot, on demurrer, hold that the defendant is entitled to succeed.
LUSH, J. I cannot bring my mind to the conclusion that any part of the language complained of can be considered libellous. 14] I *think that the Court, before giving judgment for him, is bound to see that the words are capable of casting an imputation upon the character of the person complaining, or upon his conduct in carrying on his trade; and the imputation must be of a kind likely to injure him in public estimation, or to injure him in his trade. If the words, fairly read, are not capable of the above-mentioned construction, I think it the duty of the Court to hold that they ought not to be submitted to a jury. I am unable to see in the words of the alleged libel any imputation on the character of the plaintiffs, or on the mode in which they carry on their business. The subject of the alleged libel is an article which the plaintiffs have advertised as of their manufacture, and to which they have given the title of “The Bag of Bags.” Now, it is competent to every member of the community to express his opinion as to the good taste of giving that title to the article. It has been contended that the first part of the libel may turn out to have been used ironically, and is, moreover, capable of conveying to the public the impression that the bag is not useful, not portable, and not elegant. Even if some of these words be capable of being used ironically, I fail to see that any person can reasonably interpret them in that sense, when the writer states that he has not seen the bag, and
therefore cannot say that it is neither useful, nor portable, nor elegant, and that it may have all these qualities. It would do violence to language to say that these words were used iron-, ically, that the writer had seen the bag, and that he intended to describe it as neither useful, portable, nor elegant. If the jury should find that to be the meaning of the words, I should hold the verdict to be wrong. I cannot say there is any imputation upon the bag.
It is necessary to consider the remainder of the alleged libel, which is as follows:-“But the only point we can deal with is the title, which we think very silly, very slangy, and very vulgar, and which has been forced upon the notice of the public ad nauseam.
Can it be held to be libellous upon a person, to say that the title given by him to an article of his manufacture is silly, slangy, and vulgar? It is entirely a matter of taste and of opinion. The title of an article may be silly, slangy, and vulgar in the estimation of one person, and not in the estimation of another. At all *events, the writer of this passage [15 sets out the words upon which he comments, and gives every opportunity of judging whether he is justified in his criticism. If this passage is libellous, it seems to me it would be libellous for any critic to say of a book, a poem, or a drama, “ The title which the author has thought fit to give to his work is silly, slangy, and vulgar.” In my opinion that would be a very dangerous extension of the law of libel.
HANNEN, J. I am of opinion that, upon this declaration, there is a question to be left to the jury, and that they have to determine whether or not the language used is only a fair criticism, or whether this passage was written with the intention of unduly disparaging the plaintiffs. It seems to me that much may be said in support of the argument, that these words are not written as a fair criticism, but are intended to injure. The title of an article sold by a tradesman does not usually attract the attention of critics, and it may be thought that the defendant was induced by some motive other than a regard for good taste to notice the name that had been given to an article of commerce. The writer says, “ The title we think very silly very slangy, and very vulgar, and which has been forced upon the notice of the public ad nauseam.” It is for the jury, taking