The Sun.
London, England, 1849-11-03 00:00:00

LAW INTELLIGENCE.

COURT OF QUEEIV'S BENCH, Nov. 2.
(Sittings in Banco.)
TUE WEEKLY DISPATCII.-TOE DUKE OF BRUNSWICK

V. HAKNIER.
Sir FREDERICK TIIESIGER said—My Lords, in this
case, which was tried before Lord Denman, at the sit-
tings here last term, and in which a verdict was found
for the plaintiff, with 5001. damages, I am instructed to
apply to your Lordships for a rule to show cause
why there should not be a new trial, on the ground
of misdirection ; also upon an affidavit which I shall
have to produce to your Lordships. This was an
action brought by the Duke of Brunswick
against the proprietor of the Weekly Dispatch
newspaper for various alleged lilsels contained in
that paper. The declaration was rather of an extra-
ordinary character; there were five counts in it, the
first being upon a libel alleged to have been published
in the month of September, 1830, being nineteen
years ego. There were four other counts, which
first of- all stated this libel of September, 1830,
and then alleged further maliciously contriving and
intending to injure the plaintiff, published further
libels in the year 1847, the last of them being on the
12th of March, 1848. The defendant pleaded, with
respect to the whole of the declaration which
was connected with the libel of the year
1830, the Statute of Limitation ; and as to the
four other libels contained in the four other counts
he pleaded not guilty. My Lords, I may as well
admit at once that if the question had depended
upon the libel that was published in the month
of September, 1830, it would have been quite
impossible fur me to have contended that the various
passages in the article in question were within the fair
and legitimate province of the editor, even with regard
to a public character like the Duke of Brunswick ;
but I have no doubt whatever that if that libel had
been entirely out of the question, all the others
comprisel under the plea of " not guilty" might have
been satisfactorily shown not to have exceeded
these limits ; and therefore it was of course
of great importance that we should ascer-
tain what consideration was given to the plea
o 1 the Statute of Limitations, which of course
referred to the libel of 1830. The Duke of Bruns-
wick conducted his own case, and he seems to enjoy
peculiar advantage in consequence, for he does
not employ counsel. 114 t celled a person who described
himself as Captain Iterinnteli., who stated that before
the 14:As of March, 1848—why he fixed that day I
ani at a lose to understand—but he stated before the
14th of March, 1843, he wont to the Weekly Dis-
kitch (Ace, and called for various newspapers,
some, Of the date of 1837, the dates of the
libels, an4pne of the 19:n of September, 1830. The
p.-reod who was present in the shop stated he would
leok amongst the -Ake of the old newspapers to see
whether he had a e-Opy of the piper of the 19th of
S.pternber, 1830, and that he must call again on the
'text day for an answer ; and on the next day
he stated he yeetret, to thd:tbffice of the Dispatch, and
there received the paper in '4nestion. In the course:
of the examination he ?Feted that he was sent by the
Duke of Brunswick to purchaee that newspaper,
anti that he delivered the p4nr to the Duke
himself. At the trial there were two copies of
the paper of the 19th of Sept , 1830, prot'uo •d—one
which had been tiled in the British Museum, w`dch was
brought from there ; the other was the one which was
alleged to have been purchased by Captain Rennault.
and delivered to the Dula., having been marked by
him so as to enable him to identify it in the manner
I have deecrihetl. I insiited at the trial that with
regard to the libel of 1830 there had been no
pubfieation within six years, and I suggested
also ttra supposing his Lordship decided against me
on that point that there was sufficient publication,
still that the jury ought to be warned that
they were not to give damages for the publica-
tioh in 1830, but that they were to look
at the circumstances of the publication in
1848, and that they were to assess their damages in
respect of the damage which they might suppose to
have resulted to the Duke from the publication
in a later year. His Lordship was of opinion
that he ought to caution the jury in that
way. The whole case went to the jury as an in-
tended republicatien of these libels and articles,
originally published in 1830, and the jury, as I have
already stated, gave a verdict for 500/. damages.
Now I respectfully submit to your Lordships that
Lord Denman was wrong, in the first place,
in holding that there was any publication at all of
this article of the 19th of September, 1830, within
the six years. I apprehend that in order to prove a
publication a civil action you must show a
publication of a libel to a third party and
it has been repeatedly held that although
it be perfectly true that if you send
a sealed letter to a person containing libellous
matter, that will he a sufficient publication to found
an indictment on, on account of its tendency to
lead to a breach of the peace, yet that, in a
civil action, if you send a letter to a per-
son who happens to be libelled in that
letter, it is no publication, because it is to him, and no
damage results whatever from it. I take it, therefore,
to be perfectly true that, if the Duke of Brunswick
bad himself gone to the Weekly Dispatch office, and
had himself bcome a purchaser of the newspaper of the
19th of September, 1830, that it could never for one
moment be contended, according to the authorities,
that there was a sufficient publication to render the
proprietors of the Weekly Dispatch liable in a
civil action. And if I am right in that
position, then I apprehend that when a party
sends a third person, as the Duke of Bruns-
wick did this Captain iennault, to purchase for him
the paper containing the article in question, that it
is precisely the same as if the Duke of Bruns-
wick had himself gone and purchased it ; for the
party thus sent to purchase was the agent of
the Duke of Brunswick ; he was put into his place,
and after all the whole proceeding is neither more
nor less than a publication by the Duke of
Brunswick himself. Now, your Lordships will ob-
serve, it is not like the case of a newspaper which has
been in recent circulation, and in which the Act of
Parliament has provided for a particular course of
proceeding to prove the publication—namely, by
enabling the party bringing an action to show by a
declaration filed at the Stamp-office who are its pro-
prietors, and the paper itself from the same establish-
ment, in order to show that it has been circulated
throughout the country, and that the party, therefore,
is not merely libelled in the particular copy
of the paper produced, but that he is libelled in the
paper wherever it has been circulated ; but in this
case the paper had become, to use a familiar ex-
pression, a dead letter altogether. It was
published the same as if it had been a
pamphlet forming a portion of the old stock on a
bookseller's shelf, and as if the Duke of Brunswick
had gone there himself and purchased it. And
although it would have been a very hard
case had the bookseller been punished for
selling it, yet it is possible, even under such circum-
stances, that the Duke of Brunswick might have
maintained an indictment against such a party for
having sold that pamphlet to him in his shop, but it
would have been no publication to the world. But it
is quite clear that the Duke of Brunswick could not
maintain a civil action, because no damage could have
been sustained, inasmuch as it was a publication
to himself. And, my Lords, there is an additional
reason here why this should not be regarded
as a publication, because your Lordships
can entertain no doubt whatever that, but
for the application of the Duke of Brunswick,
this paper would never have been published at all ;
and the Duke is therefore, I may say, guilty of
deceit, if I may so speak, in sending to a
newspaper office to induce the servants
of its proprietor to republish a long forgotten
number, one which would never have been
put into publication again, but through the
instrumentality ,of the Duke himself, who com-
plains now of a publication caused solely
by himself. Your Lordships will observe that it
is necessary to prove that there was another publica-
tion within six years. He cannot rest upon the
publication of September, 1830. If there had been no
Statute:of Limitations pleaded, it would have been for
the jury to state what damage should be given for the
old, stale, forgotten libel, published more than eigh-
teen years ago. But inasmuch as by the Statute of
Limitations the Duke of Brunswick was obliged to
show that there was a publication within that period,
and the only paper produced is one which he
sent his agent to purchase, and induced the proprietor
of the paper to sell, it was just the same as if the
Duke had gone to the shop and had himself carried it
away. Now Ido not know whether it is necessary that
I should state to your Lordships, with regard.to the
position I have ventured to lay down, that if I send
an agent to a shop to purchase a paper, it cannot be
any publication to a third party, and therefore that
such a fact cannot be received,mages' a in order to
la
found a claim for damages. I apprehend
that is completely settled. I have looked
various authorities, but I apprehend there is through
doubt about that, and I will not, therefore, trouble
the Court with them. Therefore, if that be so, am I
right in saying that if the Duke had gone himself
to sellf
to the office for the purpose of purchasing t
newspaper—for I lay great stress upon this not being
a newspaper not then or recently in circulation—if the
Duke himself had gone to purchase that newspaper,
can there be in your Lordships' opinion any
distinction between a purchase of that kind and the
purchas - a book which happened to have
laid 00_ years upop a high shelf in a book-
seller;v::shop;' of :which perhaps no other
copy might . be iee existence, and which
isr—ptirebaie.d, by the-j.. party himself, carried home
h Wen, - and- the- publication of which he
pelf was' the s occasion of? Can it be said or
eonttiiided for a 'moment, under these circum-
st ),_ that. a .partp is entitled to maintain
rpf....,

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