Page images

judicial bench, even if he did not reach the Woolsack. He had no influence, and very little money. No business came in his way. But he held on through long years, patiently hoping that some day his chance would come. Now he was sick, probably unto death, and had no money to buy food or medicine. His old friend promptly sent a remittance, which was gratefully acknowledged. At the end of a fortnight it occurred to him that he would call on the sick man and see what more he might do to help him. Arrived at the address, the door was opened by a lady-like woman, still voung, pretty in spite of the pinching of poverty. He gave his name and announced his errand. Whereat the lady, bursting into a passion of tears, told him he was too late. Her husband had died that morning. Would you like to see him ?' she asked, wistfully. The two walked upstairs to a small front room. On the bed lay the body of a man about forty years of age, fully dressed in the wig and gown of a barrister. In his right hand he held a bundle of foolscap. "What is that?' the old friend whispered. “That,' said the widow, 'is the only brief he received in the course of nineteen years' waiting. He asked me to dress him thus, and put it in his hand when he was dead.'"

I.-INJUNCTIONS TO RESTRAIN LIBELS. THE Jurisdiction recently held to have been conferred by the

Common Law Procedure Act, 1854, empowering a Judge to restrain by Injunction, and even by Interlocutory Injunction, the publication of an alleged libel, on the ground of injury to character and reputation, is a jurisdiction hitherto unknown to the law of England ; and, as it has the effect of striking a serious blow at the liberty of the Press, it is proposed to examine the Statutes and authorities upon which it is based.

The Jurisdiction in question is said to have been conferred, first by the C. L. P. Act, 1854, and next by the Judicature Act, 1873. Prior to and apart from those Statutes, it is abundantly clear that no such jurisdiction existed, either at Common Law or in Equity.

That the Court has power to grant injunctions to restrain the publication of matter injurious to property, trade or manufactures, has long been established. The ground upon which such jurisdiction is founded being, in the protection of property; and, therefore, where a publication, whether libellous or not, is calculated to inflict some immediate wrongful and substantial injury to the property or manufactures of the Plaintiff, it may be restrained by interlocutory injunction; but libellous matter, injurious only to character and reputation, is not within the principle of the

which that jurisdiction is founded.

The principle established, by authorities the highest known to the law, is, that the Court may restrain, by injunction, a publication on the ground that it is injurious to property, but not on the ground that it is a libel. Whether libel or not, the Court has no jurisdiction to determine; nor whether, if privileged, it was published maliciously; nor whether, if true, its publication was justifiable ; as those are all questions of fact to be found, not by the Court, but by a Jury.

The Court of Chancery had no cognizance of libels unless they were contempts of that Court, as by an abuse of its proceedings.* The publication of a libel was said, by Lord Chancellor Eldon, to be a crime, and “ the Court of Chancery has no jurisdiction to prevent the commission of


upon which

See per Lord Chancellor Hardwicke, 2 Atkyns 469.



crimes."* And it was held in a Scottish case, on appeal to the House of Lords, that a Jury is appointed by Statute as the proper tribunal for the trial of injuries to the person by libel or defamation; and the liberty of the Press consists in the unrestricted right of publishing, subject to the responsibilities attached to the publication of libels, public or private. But if the publication is to be anticipated and prevented by the intervention of the Court, the jurisdiction over libels is taken from the jury, and the right of unrestricted publication is destroyed.t

And it was also held by Lord Langdale, M.R., that the Court of Chancery had no jurisdiction to restrain the publication of libellous advertisements, unless it was shewn that they were injurious to property. I

Notwithstanding these authorities, it was ruled by Malins, V.-C., in two cases, that although Courts of Equity have no jurisdiction to prevent the commission of acts on the ground merely that they are criminal, yet that they might restrain such as tended to the destruction or to the deterioration of the value of property, whether consisting of money or of professional reputation; notwithstanding that they were also of a criminal nature and punishable as a statutable offence.

In a subsequent case before the Court of Appeal (Lord Cairns, Ch., and James and Mellish, L.JJ.) both those cases were expressly overruled, as being at variance with the settled practice and principles of the Court of Chancery; and it was held, that the Court had no jurisdiction to

2 Swanston 413. Fleming v. Newton, 1 H.L. Cases 363, 376, per Lord Cottenham, Ch.

Clark v. Freeman, 11 Beav. 112; and see The Emperor of Austria v. Day v and Another, 3 De Gex F. and J. 238, per Lord Campbell, Ch.; and Mulkern v. Ward, L.R. 13 Eq. 619, per Wickens, V.-C.

§ Springhead Spinning Co. v. Riley, L.R. 6 Eq. 551; Dixon v. Holden, L.R. 7 Eq. 488.

[ocr errors]

restrain the publication of a libel as such, even if it is injurious to property.*

The decision in the last-mentioned case was in the year 1873. A few years later (1878) Sir Geo. Jessel, M.R., in the case of Beddow v. Beddow, 9 Ch. D. 92, expressed the somewhat startling obiter dictum that in his opinion jurisdiction was given to the Common Law Courts by the C. L. P. Act, 1854, to grant injunctions to restrain the publication of libels. And, in a subsequent case in the Court of Appeal, before Jessel, M.R., Baggally and Lindley, L.JJ., it was held that the Court has power to restrain by interlocutory injunction the publication of a libel, however “ atrocious” it may be, and though injurious only to character and reputation, a jurisdiction (said the learned M.R.) conferred on the Common Law Courts by the Common Law Procedure Act, 1854, and by the Judicature Act, 1873, whereby all jurisdiction which was vested in any of the Courts therein mentioned (including the Common Law Courts) was transferred to the High Court of Justice, of which the Chancery Division forms part, and that by section 25, sub-section 8, an injunction may be granted by an interlocutory order of the Court, in all cases in which it shall appear to the Court to be “just or convenient.” “ That being so ” (continues the learned Judge), “in my opinion, having regard to these two Acts of Parliament, I have unlimited power to grant an injunction in any case when it would be right or just to do so, according to settled legal reasons or on any legal settled principle.”+

And now let us refer to the sections of the Com. L. P. Act, 1854, which it is said, conferred the jurisdiction in question upon the Courts of Common Law.

By section 79 it was enacted that—"In all cases of breach of contract or other injury, where the party injured

[ocr errors][ocr errors][ocr errors]

* Prudential Assurance Co. v. Knott, L.R. 10 Ch. App. 142.
Quartz Hill Consolidated Gold Mining Co. v. Beall, 20 Ch. D. 501.

is entitled to maintain and has brought an action, he may in like case and manner as hereinbefore provided with respect to mandamus, claim a writ of injunction against the repetition or continuance of such breach of contract or other injury, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right; and he may also in the same action include a claim for damages or other redress.”

By section 81—“The proceedings in such action shall be the same, as nearly as may be, and subject to the like control, as the proceedings in an action to obtain a mandamus under the provisions hereinbefore contained; and in such action judgment may be given that the writ of injunction do or do not issue, as justice may require; and in case of disobedience such writ of injunction may be enforced by attachment by the Court, or when such Courts shall not be sitting, by a Judge."

Section 82 enacted, that it should be lawful for the Plaintiff at any time after the commencement of the action, and whether before or after judgment, to apply ex parte to the Court or a Judge for the writ of injunction.

The object of these sections was, to facilitate the mode of proceeding in the Common Law Courts in those cases in which, prior to the C. L. P. Act, it was necessary in order to obtain complete relief, to have recourse to a Court of Equity : so that, where previously to the C. L. P. Act, a Court of Equity had jurisdiction to grant an Injunction a Court of Common Law was thereby empowered to do so. That those enactments were never intended to be used for the purpose of issuing writs of injunction to restrain the publication of libels is obvious, from the fact that no such were ever issued.

Now, if a jurisdiction such as that recently held to have been conferred by the C. L. P. Act, was so conferred,

« PreviousContinue »