Important Libel Case.

Prominent Personage's Plaint.

Brookey v. Eskimo Pie Vendors. (1932 Smad I.). Action for libel, petty larceny, and vending of miscellaneous goods.

Lord Sparker:—It appears that at the "Extrav." two penetrably disguised agents of the defendant Company extorted from Brookey a promise that he would purchase Eskimo pies from them. At the interval he bought three pies from one; and the other agent, by threatening further publicity, forced him to buy three more. Further, the plaintiff alleges he thought it was "pi," not "pie."

The defence on the first count is that as the agents were part-time students they did not recognise the plaintiff; but surely a knowledge of Brookey's habits is part of the training of the young student. Symes v. University of N.Z. must be distinguished as that decision turns on interpretation, whereas here the student turns on Brookey. But was there libel? "Libel is any statement, or abstaining from stating, partial or total, fact or fiction, true or false, intentionally or accidentally, in public, sub rose, or in camera."—Kornish on Libel. This authority is very persuasive, but I cannot find these thirteen elements in the facts; in short, the action does not lie merely because the witnesses do.

Brookey claims that he made one promise to the two agents both together present, etc.; they claim a promise to each in consideration for a promise "not to bore him." Comments on consideration completely contravert the company's contention, as such a promise is unenforceable except as by an insane carpenter. Moreover, a restitutio in integrum is manifestly impossible. The plaintiff cannot have redress for gratuitous purchase and consumption; if he Must supplement the statutory three meals per diem he must pay for the privilege. Taylor v. Laird cannot apply, as the plaintiff had an opportunity to refuse. No order will be made.

The third charge presented a most difficult problem, and I was in a dilemma between the devil and the deep sea until the devil was scared by the dilemma's horns. Apparently the 'Varsity atmosphere has biassed Brookey's faculties—to use the term legally—away from Agriculture. He "affidaves" that he understood that he was to receive a formula evolved by the Eskimos for reducing the temperature on a hot night by calculating "pi" to infinity, thus reducing the radius ventris; whereas he did not receive even an Eskimo. The Court is not responsible for the plaintiff's inability to distinguish mathematics from ice-cream, and I am not prepared to restrain the Company from selling its goods as "Eskimo pies." There has been a "sell." but caveat emptor.

Plush J.:—I agree, and I have before me the written concurrence of my learned brother Lord Luvaduk, who is unfortunately indisposed through over-indulgence in frozen cornflour.

Costs fixed at the scale of £5 5s per charge, plus £1 1s. oath fees, £1 Is. witnesses' expenses; and a further £1 Is. cross-examination fees: exempted from the provisions of the National Expenditure Adjustment Act. 1932.

Solicitors for plaintiff: Wott and Scotkins.
Solicitors for defendant: Stex and Rorey.

M. B.

Is the 'Varsity girl without charm?