"not to represent that his firm is, or that the plaintiff's firm is not, the original firm of Richard Hayward & Co.," and added that the plaintiffs, "finding that serious misrepresentations were in circulation to their prejudice, felt themselves compelled to bring the above action." In a subsequent action ($), brought by the former defendants against the former plaintiffs, this circular was held to be untrue and libellous, and to have been published maliciously, and an injunction was granted to restrain its further publication. libellous. So far as the case against an advertisement or other True statepublication rests upon its being a libel, proof that the ments are not statements complained of in it are, in fact, true, is an answer to any action for damages, or an injunction in respect of its publication (†). Accordingly, an action for publishing a statement that certain persons, meaning the plaintiff company, had wrongfully used the word Singer to designate machines not manufactured by the defendant company, which came on for trial after the latter company had established, in a passing off action against the former, that the use of the word by the plaintiff company was actually wrongful, was dismissed with costs (t). So the publication of an apology actually made by the Publication of plaintiffs to the defendants is justifiable, though it may an apology. have been extracted from the plaintiffs under duress of civil or criminal proceedings in respect of the false marking of their goods (u). But the publication of a statement which turns out to be But a statetrue may be improper pending legal proceedings in which ment pending proceedings, the matters it refers to are in issue, not as being libellous, whether true but as contempt of Court, if it tends to interfere with the be a contempt fair trial of the action, or to embarrass one of the parties of Court. in the preparation or conduct of his case. And such con (8) Hayward & Co. v. Hayward & Sons, 34 C. D. 198 (1886), North, J.; Liebig's &c. Co. v. Anderson, 55 L. T. 206 (1887), Chitty, J. (t) Nähmaschinen Fabrik, &c. v. Singer Manufacturing Co., 10 R. P. C. 310 (1893), Romer, J. (u) Fisher v. Apollinaris Co., L. R. 10 Ch. 297 (1875), L.JJ. or not, may Statement in reply to one published by the other side. tempt may be punished by imprisonment (a), fine, or sequestration of goods, or the publication may be restrained by injunction, upon a summary application by motion in the action (y). The reluctance of the Court to interfere by interlocutory injunction to restrain the further publication of an alleged libel which the defendant justifies, does not extend to such cases as these. As already stated, the parties are at liberty to warn the trade as much as they like, notwithstanding the pendency of the action; but they are bound to refrain during its pendency from public discussion on the merits or demerits of the case (≈). "You can warn as much as you like," Kay, J., said, in Goulard v. Lindsay (y), "but can you advertise: 'I have brought an action against A. B. which is certain to succeed'?" And the learned judge added that to advertise a positive statement that the defendants had infringed the plaintiff's patent was wrong. It is no answer to an application for an injunction in respect of a publication alleged to be a contempt of Court, to say that it was made in reply to a statement published by the applicant himself with reference to the same matter, although this circumstance may influence the Court in dealing with the costs of the application (a). But every publication bearing upon the matters in question pendente lite is not a contempt. A fair and accurate report of interlocutory proceedings, for instance, is allowable (6). And the Court may refuse to restrain a (x) Roach v. Hall, 2 Atk. 469 (1742), Hardwicke, L.C. The respondents were imprisoned for publishing statements calling some of the witnesses "affidavit men." Kitcat v. Sharp, 31 W. R. 227 (1883), Fry, J., (defendant restrained from publishing the statement of claim and correspondence). (y) Coats v. Chadwick, (1894) 1 Ch. 347, Chitty, J. The plaintiffs, in an action for passing off, were restrained from publishing a circu lar charging the defendants with fraudulent imitation of their goods. Goulard v. Lindsay, 4 R. P. C. 189 (1887), Kay, J., (a patent case). (2) Per Chitty, J. (1894), 1 Ch. 350. (a) Coleman v. West Hartlepool Ry. Co., 8 W. R. 734 (1860), Wood, V.-C. (b) A newspaper report published contemporaneously, if otherwise libellous, would be privileged under the Law of Libel Amendment Act, 1888. report which it thinks unfair or discreditable to the persons responsible for it, if not convinced that the report is calculated to obstruct the course of justice, or to prejudice the public mind (c). Where the publication of a statement pendente lite is Undertaking as to damages. restrained as being a contempt of Court, the applicant is not required to give an undertaking to be answerable in damages to the respondent for any loss occasioned by the injunction if it turns out that the respondent was in the right (d), as is usual upon the grant of an interlocutory injunction, for the publication is wrong in any event, whether the statements are found in the end to be false or to be well-founded. editors. The rule under which the publication of biassed comments Contempts by reflecting on matters in issue in pending litigation, and newspaper calculated to interfere with the fair trial of the action, is restrained, is of general application, and it is not confined to publications made by, or at the instance of, interested parties. Applications under it to commit the editors of newspapers have, of late years, become very frequent, and, in spite of the constantly expressed reluctance of the judges to interfere where it is not necessary to protect the fair prosecution of the action (e), the applications generally result in the costs incurred, or part of them (ƒ), and some (c) Brook v. Erans, 29 L. J. Ch. 616 (1860), Stuart, V.-C. and L.JJ. The plaintiffs advertised that they had established that they first used the word Glace, but that the defendants relied on the lapse of time as an answer to the motion, although the plaintiffs had constantly protested against the defendants' use of the word. The defendants, in fact, had not been called upon on the motion. (d) Fenner v. Wilson, (1893) 2 Ch. 656, Kekewich, J. (e) In re Clements, 46 L. J. Ch. 383 (1877), Jessel, M.R., said: In "I say that a judge should be (f) See Duncan v. Sparling, The Injunction to restrain trade-libels. Interlocutory injunction. times a substantial fine (g), being thrown upon the respondents if they have ventured at all beyond a mere accurate report, or a colourless account of the proceeding. Before the Judicature Act the Courts had no jurisdiction to restrain the publication of a libel, even though it affected the plaintiff's trade or property (h); but the jurisdiction is conferred by that Act upon all the divisions of the High Court, and it has been exercised in many cases (i). The Court has also jurisdiction to interfere by interlocutory injunction to restrain the further publication of an alleged trade libel, which is the subject of an action, until the hearing. But it will only do so if it is satisfied, upon the facts and evidence before it, that the statements complained of are false (k), however much the balance of convenience may be in favour of staying the publication (k), and only in the clearest cases (7)—where, as it has been put, the plaintiff's case is so strong that if the jury at the trial found for the defendant, their verdict would be set aside as unreasonable (m). For the question, libel or no libel, is peculiarly a question for a jury; and in order to interfere before the hearing the Court must determine that question in advance, without the jury's assistance (m). The reluctance to interfere by (g) Re The Crown Bank, 44 C. D. 649 (1890), (a bad case of contempt). (h) Prudential Assurance Association v. Knott, L. R. 10 Ch. 142 (1875), Cairns, L.C. and L.JJ. (i) Thorley's Cattle Food Co. v. Massam, 6 C. D. 582 (1877), Malins, V.-C.; 14 C. D. 763 (1880), Malins, V.-C., and C. A.; Thomas v. Williams, 14 C. D. 864 (1880), Fry, J.; Saxby v. Easterbrook, 3 C. P. D. 339 (1878), Div. Court, and the cases cited below. (k) Collard v. Marshall, (1892) 1 Ch. 571, Chitty, J. The libel was that the plaintiffs were "sweaters," and that their work was not properly executed. The defendants said the statements were, in substance, true, but did not suggest that they had any further evidence not before the Court. They were willing to treat the motion as the trial. An interim injunction was granted. Punch v. Boyd, 16 L. R. Ir. 476 (1885). (kk) Société des Manufactures des Glaces v. Tilghman's Patent Sand Blast Co., 25 C. D. 1 (1883), C. A. (1) Monson v. Tussaud, (1894) 1 Q. B. D. 671, C. A., per Davey, L.J., (case of a personal libel). (m) Per Lord Esher, M.R., in Coulson v. Coulson, 3 Times L. R. 846, adopted in Bonnard v. Perryman, (1891) 2 Ch. 269, C. A. interlocutory injunction is so strong, that the cases cited of Bonnard v. Perryman (mm), and Monson v. Tussaud (n), seem to show that, where the defendant alleges justification, and reserves the particulars of his case, and the evidence in support of it, the injunction ought never to be granted. In any case, the probability of very serious injury to the plaintiff if the libellous statements are allowed to continue must be made out (o). survives to An action in respect of a trade-mark for slander of title, Action unlike a mere personal libel, survives to the executors executors. since it occasions an injury to the estate of the testator (p). (mm) See note (m) ante, p. 446. (n) Note(). These were not, however, trade libels, but the rule was applied in Champion & Co. v. The Birmingham Vinegar Brewery Co., 10 Times L. R. 163 (1893), Div. Court, (which was a trade case). (0) Salomons v. Knight, (1891) 2 (p) Hatchard v. Mège, 18 Q. B. D. |