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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dwyer V. Esmonde [1878] IEHC 1 (30 November 1878) URL: http://www.bailii.org/ie/cases/IEHC/1878/1.html Cite as: [1878] IEHC 1

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DWYER v. ESMONDE. Court of Appeal, 1878. (1878) 2 Ir. 243
 


The Lord Chancellor: - This is an appeal from a decision of the Court of Exchequer, allowing a demurrer to a plea in an action for libel. The plea is in effect that the publication complained of was a privileged communication. Mr. Esmonde was candidate for the representation of the county of Waterford in Parliament. In "The Freeman's Journal" there appeared "an address" to the farmers of that county, purporting to come from the Kilkenny Farmers' Association, intended to injure Mr. Esmonde's canvass, and condemning his conduct as a landlord, particularly in relation to the present plaintiff Dwyer, who had been his tenant, and was evicted for non-payment of rent. Mr. Esmonde wrote in "The Freeman's Journal," by way of answer to this address, a letter which is the libel now complained of. The plea defends its publication on the ground that the publication of the address in "The Freeman's Journal" was caused by the plaintiff and others, that journal being extensively circulated in the county of Waterford among the electors; that the letter sued upon was written and published in answer to the charges made in the address against the defendant, in defense of himself in relation thereto, bona fide, without malice, and believing the same to be true.

It is to be observed that the Court of Exchequer, by a majority of its judges, refused to admit the "Address of the Kilkenny Tenant Farmers' Association" to be read upon the argument of the demurrer; whereas this Court, by a majority of its members, has decided that this address is incorporated with the plea, and that the entire of it is to be taken into consideration by the Court. We have, therefore, elements for our judgment which the Court of Exchequer had not.

The address makes general charges against Mr. Esmonde as landlord of a property in Kilkenny; and even goes so far as to designate him as "the true type of a bad Irish landlord, the scourge of the country." But for the purpose of the present appeal, I think attention need only be directed to such allegations as relate to the present plaintiff, which I now read:—

"One tenant, John Dwyer, holding sixty acres, met with an accident, and became embarrassed—old arrears hanging over him! Mr. Esmonde dispossessed him; he is able and willing to undertake the farm—yet it is lying waste and idle on Mr. Esmonde's hands for the last two years; and let that gentleman inform you whether, with the keen competition for the land in the locality, it is the bad land or the bad landlord that deters any man from becoming his tenant, or for a long time from becoming even a caretaker of the farm ?"

The charge here appears to be by no means confined to the eviction from the farm; supposing that to have occurred from non-payment of rent, caused by an accident, then when Dwyer was able and willing to undertake the farm, Mr. Esmonde still, rather than set it to him, keeps the land idle on his own hands.

The charge against Mr. Esmonde being of this character, he defends himself by giving a sketch of the man who, it is alleged, should have been retained, or, when evicted, reinstated in the farm; and here I refer to the document, and do not confine myself to the extracts in the plaint. He says that the reason why he ejected John Dwyer was simply for non-payment of rent; that the Dwyer family consisted of John and two sisters, and that, on the day after the execution of the habere, they forced the lock of the door, and were found seated before the fire within the dwelling house; the aid of the sub-sheriff had again to be called in before he could regain possession of his property; that for nine months he was unable, although he advertised, to procure a caretaker for the farm; and, some months afterwards, he discovered that the plaintiff had got a meadow of four and a-half acres mown, and had carried off the hay and sold it—a matter which Mr. Esmonde suggests was a crime for which Dwyer could have been made amenable; that, besides all this, Dwyer had acted ill to his sisters, who had portions charged on the very farm—not paying them, any more than the landlord; and, finally, Mr. Esmonde points out that it was due to a threatening notice that the land had not been let. The innuendos of the plaint suggest that this amounts to definite charges that the plaintiff was guilty of forcible entry, of intimidating anyone from becoming caretaker, of an indictable offence in selling the hay, of fraudulently retaining from his sisters their portions, and of being instrumental in having the threatening notices feloniously sent to an intending tenant of the farm.

The case of O'Donoghue v. Hussey, Ir. R. 5 C. L. 124, decided by the Irish Court of Exchequer Chamber, established that if a person be assailed in a newspaper, he is excused if in self-defense he has recourse to the public press, and brings forward bona fide, without malice, in the belief that they are true, statements having relation to the charge, which, in themselves, and apart from the occasion, would be libels without excuse. The circumstances rebut the presumption of malice otherwise arising from the words. In order to take the present case out of this rule, it is argued that what is alleged by Mr. Esmonde in respect of the plaintiff, particularly as to his conduct to his sisters, is not relevant to the charge made against Mr. Esmonde in the Kilkenny Farmer's Address. But is this so? Observe Mr. Esmonde is, in that document, held up for condemnation, not only in respect of the eviction of Dwyer, but also for subsequently excluding him from the farm, when it is said he was able to undertake it. All the matters put forward in explanation of the course adopted had their origin in Dwyer's original position as tenant. The portions of his sisters were charged upon the farm, and payable by him out of its proceeds. The reasoning is in effect that, whether regard be had to his non-fulfilment of his obligations to his landlord or his sisters in connection with the farm while he continued tenant, or to his personal conduct after he was evicted, he is not a person whom a landlord can be justly censured for not restoring. If what was stated tended to establish that conclusion, it was relevant—perhaps I ought to go farther, and say that whatever tended to establish it for the tribunal to which the address and the answer were both directed, namely, the electors of the county of Waterford, was also relevant. Whichever test we adopt, it appears to me that the defamatory matter which has in this case been complained of was sufficiently connected with the vindication of the defendant's character to remove any objection to its publication founded upon want of relevancy. The demurrer should, in my opinion, have been overruled, of course with costs, in the court below ; and, in this case, we think the plaintiff must also pay the costs in the Court of Appeal.

Morris, C. J.:— The chief reliance of the plaintiff during the argument has been on the fourth charge; that is, that the plaintiff had fraudulently retained from his sisters sums to which they were entitled under their father's will, charged on the farm. This is not a charge of independent and unconnected improper conduct by the plaintiff, but of improper conduct in relation to his tenancy of the farm the subject of discussion, and in relation to which farm the plaintiff had accused the defendant of gross misconduct and harshness, as landlord, to him the plaintiff, as his tenant.

Christian, L. J.:— Well, Mr. Esmonde, thus arraigned, before the electors of the county of Waterford in particular, as one utterly unfit to be chosen as their representative, and before the public in general, including his own tenantry, as a cruel and tyrannical landlord, had two courses open to him:—he might either have thought of what he owed to himself as a man and a proprietor, and to the interests of public order, by bringing his libellers before the tribunals of the land; or, he might only have regarded his chances as a candidate, and pleaded at the bar of the rural forum before which his assailants had brought him. Well, he chose the latter course. Instead of an action or an indictment, he stooped to the level of his assailants, and put his vindication in the shape of a letter to the editor of the same newspaper. That was the form it took, but in substance the persons addressed were the tenant-farmers of the county of Waterford. And, however others may blame his choice of a course, assuredly it does not lie in the mouth of the plaintiff or of his co-libellers to do so. Under these circumstances, it is as plain a proposition as was ever enunciated that the occasion gave to Mr. Esmonde a privilege of laying before the electors of the county he was canvassing every circumstance of Dwyer's conduct in relation to the farm—(I might put it further, but it is needless to do so) - which would be calculated to satisfy ordinarily reasonable men that he was one whom a just and even an indulgent landlord might reasonably object to retaining, still more, to reinstating on his land. That those circumstances would be in the highest degree defamatory, if Dwyer himself had not been the aggressor, might make them all the more proper to be covered by the privilege, because all the more demonstrative of Dwyer's objectionableness. The defendant might, in exercising this privilege, fall into excesses of phrase or intemperance in expression which would indicate an animus going beyond the bounds of self-defense. But the effect of that would be, not to take the subject out of the privilege, but to constitute evidence from which the jury might or might not infer malice in fact; the malice in law, which is implied prima facie in the mere publishing of defamatory matter being repelled by the privilege of the occasion.