as was the fact, that a house nearly adjoining to it had been on fire that evening, and that there was danger of the fire again breaking out; and sends his letter after the regular post time. The fire having broken out again on the day next but one following, and consumed A.'s warehouse; it was holden2, that this was a material concealment, although A.'s letter was written without any fraudulent intention. A policy of insurance (against fire) is effected on the stock and utensils of a sugar-house, the different stories of which were heated by a chimney running up to the top. By the negligence of the plaintiff's servants, in omitting to open the register, the heat was considerably increased, by means of which large quantities of the sugar were spoiled; but no damage was occasioned to any thing but the sugar, and no greater fire existed than on ordinary occasions; it was holdena, that this was not a loss by fire within the policy. In a policy of insurance against loss by fire, from half a year to half a year, the insured agreed to pay the premium half yearly," as long as the insurers should agree to accept the same," within fifteen days after the expiration of the former half year; and it was also stipulated, that no insurance should take place until the premium was actually paid; a loss happened within fifteen days after the end of one half year, but before the premium for the next was paid; it was holden", that the insurers were not liable, though the insured tendered the premium before the end of the fifteen days, but after the loss. By a policy under seal; referring to certain printed proposals, a fire-office insured the defendant's premises from 11th of November, 1802, to 25th December, 1803, for a certain premium, which was to be paid yearly on each 25th of December, and the insurance was to continue so long as the insured should pay the premium at the said times, and the office should agree to accept it. By the printed proposals it was stipulated, that the insured should make all future payments annually, at the office, within fifteen days after the day limited by the policy, upon forfeiture of the benefit thereof, and that no insurance was to take place till the premiums were paid; and by a subsequent advertisement (agreed to be taken as part of the policy), the office engaged that all persons insured there, by policies for a year or more, had been and should be considered as insured for fifteen days beyond the time of the expiration of their z Bufe v. Turner, 6 Taunt. 338. 2 Marsh. Rep. 46. S. C. a Austin and another v. Drewe, Holt's N. P. C. 126. C. B. Gibbs, C. J. and afterwards confirmed by the Court, 6 Taunt. 436. 4 Campb. 360. S. P. b Tarleton v. Staniforth, 5 T. R. 695. Judgment affirmed in Exch. Ch. 1 Bus. & Pul. 471. policies; it was holden, notwithstanding this latter clause, (the insured having, before the expiration of the year, had notice from the office to pay an increased premium for the year ensuing, or otherwise they would not continue the insurance, and the insured having refused to pay such advanced premium,) that the office was not liable for a loss which happened within fifteen days from the expiration of the year for which the insurance was made; though the insured, after the loss, and before the fifteen days expired, tendered the full premium which had been demanded; for the effect of the whole contract, &c. taken together, was only to give the insured an option to continue the insurance or not, during fifteen days after the expiration of the year, by paying the premium for the year ensuing, notwithstanding any intervening loss, provided the office had not, before the end of the year, determined the option, by giving notice that they would not renew the contract. In covenant against the defendants who were members of the Sun Fire Office, a tender was pleaded and money paid into court, under the 19 G. 2. c. 37. s. 7. It was objected that the statute did not extend to insurances against loss by fire; but the court overruled the objection, on the ground that the statute was not necessarily confined to marine insurances; that it ought to be construed as extensively as the mischief, and there was as much reason to have money paid into court on a fire-insurance as on any otherd. Insurance on a granary with a kiln for drying corn attached. By the 3rd condition of the policy it was stated, that the trades carried on in the insured premises should be accurately described, and if a kiln or any process of fire had been used and not noticed in the policy, the policy was to be void; and by another condition that if the risk to which the insured premises were exposed should be by any means increased, notice was to be given to the office, and allowed by indorsement on the policy. A cargo of bark having sunk near the premises of plaintiff, who was the insurer, he allowed the bark to be dried at his kiln, gratis; and in consequence of the fire at the kiln during this process, which lasted three days, the premises were burnt down. In an action against the insurance office, the jury, having found that drying bark was a more dangerous trade than drying corn: it was holdene, first, that a user of the corn kiln for a different purpose from that intended at the time of making the policy, was not a misdescription or omission, within the meaning of the third condition c Salvin v. James, 6 East, 571. d Solomon v. Bewicke, 2 Taunt. 317. e Shaw v. Robberds and others, 1 Nev. & P. 279. secondly, that a single user of the corn kiln as a bark kiln, gratis, was not such an alteration or increase of risk as required notice to be given to the office; thirdly, that the two conditions taken together did not amount to a warranty, that the plaintiff, would not use the kiln for other purposes than drying corn; fourthly, that although the fire was occasioned by the negligence of the assured himself, he, not being guilty of fraud, might recover. The profits of a business may be insured, quâ profits, but not under a general description, as "interest in the inn and offices." f In re Wright and Pole, 1 Ad. & Ell. 621. 3 Nev. & M. 819. CHAP. XXVI. LIBEL. I. Of the Nature of a Libel, and in what Cases an Action may be maintained for this Injury. II. Of the Declaration and Pleadings. III. Of the Evidence. I. Of the Nature of a Libel, and in what Cases an Action may be maintained for this Injury. A LIBEL is a malicious defamation expressed in printing or writing, or by signs, pictures, &c. tending to injure the reputation of another, and thereby exposing such person to public hatred, contempt, or ridiculea (1). And an action on the case is maintainable against any person who falsely and maliciously publishes any libel against another. Where the natural tendency and import of the language used in the publication, is to defame and injure another, it is a libel, and actionable; for the law will presume, that the defendant, by publishing it, intended to produce that injury which it was calculated to effect. In such case, the judge ought to direct the jury, that it is a libel, and not leave it as a question to the jury, to say, whether the defendant intended to injure the a Digby v. Thompson, 4 B. and Ad. b Haire v. Wilson, 9 B. and C. 643. 821. 1 Nev. and M. 485. Fisher v. Clement, 10 B. and C. 472. (1) "If any man deliberately or maliciously publishes any thing in writing concerning another, which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action lies against such publisher." Per Wilmot, C. J. 2 Wils. 403.-"I have no doubt that the writing and publishing any thing which renders a man ridiculous, is actionable."-Per Bathurst, J., S. C. See also the same opinion expressed by Gould, J., S. C. plaintiff; for every man must be presumed to intend the natural and ordinary consequences of his own act. As there is a difference between the malignity and injurious consequences of slanderous words spoken or written, the one being sudden and fleeting, the other permanent, deliberate, and disseminated with greater ease; many words which, if spoken, would not be actionable, are actionable if published in the way of libel (2). Hence the word swindler, if spoken of another, (unless it be spoken in relation to his trade or business,) is not actionabled; but if it be published in the way of libel, it is actionable. Hence, also, the publication of a letter containing some verses, in which the plaintiff was called an itchy old toad, was deemed a libelf. So the publication of a letter, in which the plaintiff was stated to be one of the most infernal villains that ever disgraced human nature, has been holden actionable, without proof of special damages. A fair and candid comment on a place of public entertainment, in a newspaper is not a libelh. So a fair, temperate, and reasonable criticism on the buildings of an architect, is not libellous, however mistaken in point of taste the opinion may be, or however unfavourable to the merits of the architect. like manner, a comment upon a literary production exposing c Austin v. Culpepper, 2 Show. 314. King v. Lake, Hardr. 470. Per Hale, C. B. d Saville v. Jardine, 2 H. Bl. 531. e J'Anson v. Stuart, 1 T. R. 748. In f Villers v. Monsley, 2 Wils. 403. i Soane v. Knight, 1 M. and Malk. 74. (2) In Bradley v. Methwyn, B. R. M. 10 G. MSS. which was an action on the case for a libel, Ld. Hardwicke, C. J. observed, that "the present case is not for words, but for a libel, in which the rule is different; for some words may be actionable, or prosecuted by way of indictment, if reduced into writing, which would not be so, if spoken only. For the crime in a libel does not arise merely from the scandal, but from the tendency wich it has to occasion a breach of the peace, by making the scandal more public and lasting, and spreading it abroad; which was so determined in this court, in the case of King v. Griffin, Hil. 7 Geo. 2." This subject was much discussed in Thorley v. E. of Kerry, on error in Exch. Ch. 4 Taunt. 355. where a defamatory writing, imputing hypocrisy to the earl, and that he used religion as a cloak for unworthy purposes, was holden to be actionable, Sir James Mansfield, who delivered the judgment, observing, that he was bound by the later authorities, although the distinction between speaking and writing was not to be found in Rolle's Abridgment, or the earlier editions of Comyn's Digest: The action was a common action on the case, and not an action for scandalum magnatum. |