PART THE SECOND.

The Remedy.

CHAPTER I.

OF THE REMEDY, GENERALLY.

THE remedy for the wrong of which we have treated is, for libel twofold, for slander uniform.

All defamation, however, entitles the party injured to a civil action for damages.

Libel, in addition to this civil remedy, is punishable also as a misdemeanor, upon prosecution by indictment, or upon criminal information.

Slander of particular parties is not a criminal offence. (a)

Public libels and public slanders are of course punishable only as criminal offences.

We shall consider, first, the civil remedy.

(a) This distinction, which is now fully settled, seems to rest upon the case of The Queen v. Langley, Holt's Rep. 654, wherein Holt, C. J., held, that "words "which led directly to a breach "of the peace may be indict "able; otherwise, to encourage "indictments for words would

"make them as uncertain as "actions for words are." See also 2 Salk. 698, 2 Str. 1157, and 2 Camp. 142. See also supra, pp.76,77. "Words directly lead

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ing to a breach of the peace is a phrase for a challenge to fight, which is quite a distinct offence from defamation.

THE civil remedy for defamation, whether oral or written, is an action on the case.

SECT. 2.--Parties to the Action.

As to the parties to the action (a), the action for defamation is governed by the general rule in actions of tort. Where the wrong complained of is an entire joint damage, the parties may join in the action; but where the cause of action as well as the interest is several, each injured party must sue separately. (b)

For injury to personal reputation, therefore, several parties cannot sue jointly. Thus where A. says to B. and C., "You have murdered D.," B. and C. must bring several actions (c), for B. and C. have no joint interest in each others reputations. But where the defamation is of two partners in their trade, or of two joint tenants or coparceners in respect to the title to their estate, the interest is joint, and so may be the action. (d)

(a) An action for libel may be maintained by an alien. Pisani v. Lawson, 6 Bing. N. C. 90; 8 Scott, 182; 8 D. P. C. 57.

(b) Chitty on Pleading.

(c) Smith v. Croker, Cro. Car. 512.

(d) 3 B. & C. 150; 2 East, 426; 2 Saund. 117. a. But

A private act of parliament, after reciting the difficulties experienced by joint stock companies in suits for recovering debts, enforcing obligations, and prosecuting offenders, enacted, that actions commenced by the H. company for recovering debts, enforcing claims or demands, then due or which thereafter became due to the company, might be commenced in the name of the chairman. The H. company was not a corporate body. It was held that under this act the chairman might sue for a libel on the company. (e)

In defamation of husband and wife the tort is several, and the husband alone may bring the action; but the wife may be joined, provided the injury be laid as done to herself, and there be no special damage laid. (f)

In defamation of wife alone, if the words are actionable in themselves, and no special damage is laid, the wife must be joined, because she is the meritorious cause of action, and the action would survive to her. (g)

But if special damage be laid, whether the words be actionable in themselves or not, it seems that the wife should not be joined; for the special damage accrues to the husband, and not to the wife, so that the injury is not joint.

But where the husband has brought his action, and recovered for special damage accruing to him from defamation of his wife, if the words were actionable in themselves the wife may maintain another action

where words are spoken imputing insolvency in trade to one partner, he may maintain his action alone, and it is not necessarily to be considered as an injury to the partnership, for which a joint action can only

be maintained. Harrison v.
Bevington, 8 C. &. P. 708.
(e) Williams v. Beaumont, 10
Bing. 260.

(f) Cro. Car. 512.
(g) Buller's N. P. 7.

for the wrong to her after her husband's death, or may join with her husband in such action in his lifetime. (h)

As to defendants, it is settled that for words spoken parties cannot be joined, even although they speak the same words. (i) Even where husband and wife speak the same words there must be two actions, one against husband and wife for the words spoken by the wife, and another against the husband alone for those spoken by him. (k)

But where defendants jointly compose and publish a libel they may be joined, and this even where the libel is contained in affidavits made by two. (1)

But when upon a joint action against husband and wife the jury found the husband guilty and the wife not guilty, the plaintiff had judgment. The verdict cured the error.

SECT. 3.-Of the Venue.

THE venue in actions for defamation which are transitory may be changed upon the usual affidavit, that the cause of action arose in the county to which the defendant wishes the venue to be changed, and not elsewhere in this kingdom. (m)

It would be useless to cite a number of decisions which fall obviously within this rule. (n)

Every publication being a cause of action, if it appear that the libel was published in the county

(h) Guy v. Livesay, Cro. Jac. 501; Young v. Pridd, Cro. Car. 89; 8 Mod. 26; Cro. Jac. 538. 664; Str. 977; Fort. 377; Emington v. Gardner, 1 Selw. N. P. 301.

(i) Cro. Jac. 647.

(k) 2 Wils. 227; B. N. P. 5;

Emington v. Gardner, 1 Selw.

N. P. 301.

(1) 2 East, 426.

(m) Metcalf v. Markham, 3 T. R. 652.

(n) See 3 T. R. 306; 1 B. & B. 299; 1 T. R. 571. 647; 1 Wils. 178.

originally laid, as well as that to which it has been changed, the plaintiff may have the venue brought back, without undertaking to give material evidence there. (o)

In actions for scandalum magnatum it seems that the usual affidavit is not sufficient, but special grounds must be laid for changing the venue. (p)

The court, upon special ground laid, will of course change the venue in actions for defamation, as in other cases. (q)

SECT. 4.-Of Notice of Action.

It is not considered necessary in the present work to do more than to remind the reader that libellous publications may be made by parties acting in execution of some of those acts, both general and local, by which notice of action is required, and tender of amends is rendered a defence. (r)

(0) Tallent v. Morton, 1 M. & P. 188.

(p) 2 Salk. 668; 1 Lev. 56. 307; 1 Vent. 364.

(q) See Greenslade v. Ross, 3 D. P. C. 697.

(r) See Norris v. Smith, 10 A. & E. 190; Beechey v. Sides, 9 B. & C. 806; Lidster v. Borrow, 9 A. & E. 654, and the cases there referred to.