1873 GOURLEY v. PLIMSOLL. rience, their names become so black with infamy that nobody will insure their 1isks at any premium ; and, where it is necessary in the course of business to insure cargo not yet purchased, as, corn or cotton abroad, or not yet ready for delivery, as, railroad iron for foreign, and when the ships are not taken up yet (in which case it is usual to say on the slip in a ship or ships'), the brokers dare not offer their ships in the room, or would have no chance of success if they did, unless they wrote under the usual particulars these damning words, Warranted not to be shipped in any vessels belonging to,' the blanks being filled up with the names of certain shipowners; and I have seen slips so indorsed, and that, too, with names which (however well known by a few) stand fair in the eye of the world in which their infamous owners hold their heads very high indeed :” The defendant thereby meaning that the plaintiff, as a shipowner, needed the restraint and prohibition of the law and without being made subject to the penalties of the law would have no hesitation in exposing others to the risk of losing their lives, if by so doing he could augment his own profits, and that the plaintiff' was a greedy and unscrupulous man, and would not scruple to ship too large a load in a vessel for the same to carry with safety to the ship and crew, if thereby he could enhance his own profits; and habitually and wantonly ran the risk of causing the loss of his said ships and the deaths of the crews, for the purpose that in so doing he could augment his profits on such ships; and that the plaintiff was one of the ship-owners who by such overloading wantonly and needlessly imperilled ships and men's lives and caused nearly all the losses of ships and of lives on the English coasts; and that by over-insurance the plaintiff habitually made himself secure from loss in such a course of conduct; and, further, that the plaintiff by such practices had acquired an evil reputation in his said business, and was generally known as one who habitually overloaded his ships; and that he was also of evil reputation for terribly frequent and disastrous losses of ships and lives occa sioned by his aforesaid practices, and for his cynical disregard of human life, in order to increase his pecuniary gains; and that by reason of the premises the plaintiff's name in his said business had become so black with infamy that the insurance-brokers in London dared not offer risks for insurance unless they warranted that the cargoes were not to be carried in (amongst others) the plaintiff's ships; and that the plaintiff, though his name stood fair in the eye of the world, and though he held his head very high, was in the trade, and among those who knew his business affairs and reputa tion and his aforesaid practices, of evil character and repute, and was in truth guilty of practices which justly rendered him infamous: Whereby the plaintiff was greatly injured in his name, character, and reputation, and in his said business, and was held up and exposed to public ignominy and disgrace, and was otherwise greatly damnified. Third count, repeating all the prefatory averments in the first count, that the defendant falsely and maliciously printed and published of and concerning the plaintiff, and of and concerning him in relation to his said business, in the said book, the false, &c., matters following,— "There was one ship-owner whose name was often mentioned to me in the course of the years 1869 and 1870. During my inquiries in the north and east, I heard his name wherever I went as that of a ship-owner who was notorious for the practice of overloading, and for a reckless disregard of human life. I therefore made inquiry as to the ships belonging to him which had been lost, with the number of lives lost in each case; and the reply I received I will shew you. It is incomplete, you see: but sufficient is shewn to demonstrate the necessity of government interference. It is really awful to contemplate the loss of precious human life from the operations of this one man alone. ... "I will write to-night (Dec. 9th, 1872) to my informant, and will insert his reply when it reaches me. I now have it (Dec. 20th). 1873 GOURLEY v. PLIMSOLL. A .... S. 29 16 “Annexed I forward a more complete list of Mr. . . . .'s losses, together with the number of lives sacrificed. I think I shall be able to send you a further list of sailing vessels: but a melancholy list of 105 lives lost will be almost enough evidence to produce against him.” The defendant thereby meaning that the plaintiff was a shipowner notorious for the practice of overloading his ships and for a systematic and reckless disregard of the lives of the crews of his 1873 V. PLIMSOLL. said ships, and that by such overloading he had recklessly and GOURLEY wickedly sacrificed at least 105 lives out of the crews of his said ships, and more, the particulars of which were not known; and that it was awful to contemplate the loss of human life from the operations of the plaintiff alone in his said business; and that the plaintiff, on being threatened with exposure in the House of Commons, turned craven and coward and was conscience-struck at his own guilt: whereby the plaintiff suffered such damage as in the first count alleged." There was a fifth count, setting out further libellous matter of a similar character, and professing to detail a conversation which the defendant had with the plaintiff with reference to a motion upon the subject before the House of Commons; concluding with a similar innuendo. The defendant took out a summons before a Master for leave to plead the following pleas : 1. Not guilty. 2. That the said several words and matters concerning the plaintiff, whether charged as the words of the defendant or as the words of another person or persons, are true in substance and in fact. 3. As to so much of the declaration as relates to the printing and publishing and causing and procuring to be printed and published, and to the writing, composing, and publishing by the defendant of the said alleged words and matters respectively, without the alleged respective meanings, that the said several words and matters concerning the plaintiff, whether charged as the words of the defendant or as the words of another person or persons, respectively are true in substance and in fact. The master, notwithstanding that particulars were offered with the pleas, upon the authority of l'Anson v. Stuart (1) and the note thereto in 2 Smith's L. C., 5th ed. 64, 5, disallowed the second and third pleas. Upon appeal to Cleasby, B., at chambers, the master's order was set aside and the pleas allowed, upon the authority of Behrens v. Allen. (2) April 25. Philbrick moved for a rule calling upon the defendant to shew cause why the order of Cleasby, B., should not be varied, by striking out so much thereof as allowed the defendant to plead the second and third pleas, they being so framed as to embarrass and prejudice the trial of the cause. [BOVILL, C.J. It is the common mode of pleading, with particulars.] Not, it is submitted, where the charge contained in the libel is general, and imputes an indictable offence. In the note to l'Anson v. Stuart (1), in 2 Smith's L. C. 65, it is said: "The plea to a declaration in slander or libel must contain a specific charge set forth with certainty and particularity: see O'Brien v. Clement (2), and Hickinbotham v. Leach (3) where Baron Alderson observed that 'the plea ought to state the charge with the same precision as in an indictment;' and that charge must be as extensive as the imputation complained of in the declaration: see O'Brien v. Bryant (4) and Gregory v. Duke of Brunswick. (5) Since the Common Law Procedure Act, 1852, a practice has prevailed of pleading in general terms that the matters in the declaration complained of are true in substance and in fact: see a form of such a plea, and the observations upon it, in Bullen & Leake, 1st ed. 432. This mode of pleading appears to be clearly insufficient where the libel or slander complained of does not consist of a distinct statement that particular facts have occurred, which statement may be deemed to be incorporated in the plea which asserts in general terms the truth of the libel; for, where the words in question do not amount to a statement of specific facts, but impute the commission of an offence, or general misconduct, there seems to be nothing in the recent legislation to destroy the common-law right of the plaintiff to have set out on the record the circumstances which are to be proved against him, and which are supposed to justify the particular imputation; so that he may obtain the opinion of the Court (and, if necessary, of a court of error,) upon the question whether these circumstances support the charge of which complaint is made. If this were not so, it would (1) 1 T. R. 748. (2) 16 M. & W.159; 16 L.J. (Ex.) 76. (3) 10 M. & W. 361. (4) 16 M. & W. 168; 16 L. J. (Ex.) 77. 1873 GOURLEY v. PLIMSOLL. 1873 GOURLEY v. PLIMSOLL. be open to the defendant in every case of this description to deprive the plaintiff, by his mode of pleading, of the right to submit the justification to the Court as a matter of law, and to compel him to try before a jury (from whose decision error will not lie) the issue raised on the plea. A difference of opinion prevails among the judges as to whether this general mode of pleading ought in any case to be allowed." In Behrens v. Allen (1) the charge was not of an indictable offence; and Willes, J., says: "I'Anson v. Stuart (2) makes it clear that, before the Common Law Procedure Act, 1852, a general plea of justification in these circumstances was not allowed, with the exception, possibly, of a case of a specific charge in the declaration, and a plea alleging the charge to be true. In such a case as this, where the charges are mostly specific, the real question may be raised by allowing a general plea of the part specified,—a general plea to that part, and a special plea to the other part. Nevertheless, I do not mean to say that on any future case I shall not reserve to myself to allow a plea of justification in libel on such terms as will oblige the parties to try the real question between them in the clearest possible form." In Jones v. Bewicke (3) the libel charged perjury, and the second plea alleged that the defamatory matter complained of was and is true. in substance and in fact; and, upon a motion for particulars of the facts and matters the defendant relied on to justify the libel, Keating, J., said: "I doubt whether such a plea should be allowed at all. But, at all events, the plaintiff is entitled to particulars, in order to avoid unnecessary expense and miscarriage of justice" and Montague Smith, J., added: "The plea is clearly an embarrassing one, and ought not to be allowed without particulars." [BOVILL, C.J. The charge there was of a criminal character, and general in its terms; the perjury imputed might have been committed at any time. In Odger v. Mortimer (4) the plea was general, and particulars were given: and, though the libel involved a charge amounting to treason, no inconvenience resulted.] It is important to the plaintiff to have the justification placed upon the record, in order that there may be no doubt or difficulty (1) 8 Jur. N. S. 118. (3) Law Rep. 5 C. P. 32. |
