and freely, and without thought or fear of the consequences; and then the above rule does not apply. The words are privileged by reason of the occasion on which they were employed; and no action lies therefor, unless it can be proved that the defendant was actuated by some wicked or indirect motive. But in all other cases (although the pleader invariably alleges that the words were published falsely and maliciously) malice in fact need never be proved at the trial; the words are actionable, if false and defamatory, although published accidentally or inadvertently, or with an honest belief in their truth.

“That unfortunate word 'malice' has got into cases of actions for libel. We all know that a man may be the publisher of a libel without a particle of malice or improper motive. Therefore the case is not the same as where actual and real malice is necessary. Take the case where a person may make an untrue statement of a man in writing, not privileged on account of the occasion of its publication; he would be liable although he had not a particle of malice against the man." (Per Lord Bramwell in Abrath v. North Eastern Rail. Co., 11 App. Cas. at pp. 253, 254; 55 L. J. Q. B. at p. 460; 55 L. T. at p. 65.)

Illustrations.

The Protestant Electoral Union published a book called "The Confessional Unmasked." Their motive in doing so, however mistaken, was an honest one," viz:-to promote the spread of the Protestant religion, by exposing the errors of the Roman Catholic system; but certain passages in the book were obscene. Held, that its publication was a misdemeanour. All copies which the defendant had for sale were ordered to be destroyed as obscene books. Neither the law nor the religion of England permits any one to "do evil that good may come."

R. v. Hicklin, L. R. 3 Q. B. 360; 37 L. J. M. C. 89; 16 W. R. 801; 18 L. T. 395; 11 Cox, C. C. 19.

Steele v. Brannan, L. R. 7 C. P. 261; 41 L. J. M. C. 85; 20 W. R. 607; 26 L. T. 509.

And see R. v. Bradlaugh and Besant, 2 Q. B. D. 569; 46 L. J.

M. C. 286.

If a man deliver by mistake a paper out of his study where he had just written it, he will be liable to an action, if the paper prove libellous, although he never intended to publish that paper, but another innocent one.

Note to Mayne v. Fletcher, 4 M. & Ry. 312; 9 B. & C. 382; cf. R. v.
Paine, 5 Mod. 167; Carth. 405; Comb. 358.

The plaintiff told a laughable story against himself in company: the defendant

published it in the newspaper to amuse his readers, assuming that the plaintiff would not object. The plaintiff recovered damages 107.

Cook v. Ward, 6 Bing. 409; 4 M. & P. 99.

For though he told it of himself to his friends, he by no means courted public ridicule. And that the publication was "only in jest" has long been held no defence. Where a clergyman in a sermon recited a story out of Foxe's Martyrology, that one Greenwood being a perjured person and a great persecutor, had great plagues inflicted upon him, and was killed by the hand of God; whereas in truth, he never was so plagued, and was himself actually present at that discourse, -the words being delivered only as a matter of history, and not with any intention to slander, it was adjudged for the defendant.

Greenwood v. Prick, cited in Cro. Jac. 91, and 1 Camp. 270; and also in R. v. Williams, 13 How. St. Tr. 1387.

But Lord Denman and the Court of Q. B. said most positively in Hearne v. Stowell, 12 A. & E. 726, that this case is not law. Mr. Greenwood would therefore in the present day have recovered at least nominal damages.

The proprietor of the Times retired to live in the country, leaving the entire management of the paper to his son, with whom he never interfered; yet he was held criminally liable for a libel which appeared in the paper in his absence and without his knowledge. And though now since Lord Campbell's Act he would probably be acquitted in any criminal proceeding, he would certainly be held liable for damages in a civil action.

R. v. Walter, 3 Esp. 21.

R. v. Gutch and others, Moo. & Mal. 433.

R. v. Dodd, 2 Sess. Cas. 33.

A corporation is liable for a libel published by its authority, or by its officer, within the scope of his employment.

Citizens' Life Assurance Co., Limited v. Brown, (1904) A. C. 423; 73 L. J. P. C. 102; 90 L. T. 739; 20 Times L. R. 497.

Even a lunatic is liable to an action for libel or slander unless his insanity is well known to all who hear or read his words.

Dickinson v. Barber, 9 Tyng. (Mass.) 225.

Yeates et ux. v. Reed et ux., 4 Blackf. (Indiana) 463.

A barrister editing a book on the Law of Attorneys, referred to a case, Re Blake, as reported in 30 Law Journal, Q. B. 32, and stated that Mr. Blake was struck off the rolls for misconduct. He was in fact only suspended for two years, as appeared from the Law Journal report. The publishers were held liable for this carelessness, although of course neither they nor the writer bore Mr. Blake any malice. Damages 1007.

Blake v. Stevens and others, 4 F. & F. 232; 11 L. T. 543.

The printers of a newspaper by a mistake in setting up in type the announcements from the London Gazette, placed the name of the plaintiff's firm under the heading "First Meetings under the Bankruptcy Act," instead of under "Dissolutions of Partnership." An ample apology was inserted in the next issue: no damage was proved to have followed to the plaintiff and there was no suggestion of any malice. In an action for libel against the proprietor of the paper, the jury awarded the plaintiff 501. damages. Held, that the publication was libellous, and that the damages awarded were not excessive.

Shepheard v. Whitaker, L. R. 10 C. P. 502; 32 L. T. 402.

The defendants published in their newspaper, in the list of "Births," that the plaintiff, a married lady, had given birth to twins. This was untrue, and the lady had been married only one month. The defendants were not aware of either fact. Held, that the defendants were liable, though the advertisement on the face of it was not libellous.

Morrison v. Ritchie & Co., (1902) 4 F. 645 (Ct. of Session).

False defamatory words, then, if spoken, constitute a slander if written and published, a libel. The word "written" includes any printed, painted, or any other permanent representation not transient in its nature as are spoken words. A picture, statue, or effigy may also be a libel, or any other mark or sign exposed to view, if it conveys a defamatory meaning. (5 Rep. 125.)

There is a further important distinction between slander and libel. A libel is a crime; a slander on a private individual is not. It is only when the words uttered are blasphemous, seditious or obscene that the State is concerned to interfere and punish the speaker.

It is, I think, clearly necessary that there should be a criminal as well as a civil remedy for libel, for the following reasons:1. The evil done by libels is so extensive, the example set so pernicious, that it is desirable that they should be repressed for the public good. Slanders do less mischief as a rule, are not permanent, and are more easily forgotten; their evil influence is not so widely diffused.

2. Most libellers are penniless, and a civil action has no terrors for them. The plaintiff will never get his damages. In fact the proprietor of many a low newspaper rather rejoices at the prospect of a civil action for libel being brought against him. He regards it as a gratuitous advertisement for his paper.

3. Another reason often assigned for the interference of the State is, that libels conduce to a breach of the peace; but that reason would, I think, apply with equal, if not greater force to slanders.

Lush, J., says, in R. v. Holbrook, 4 Q. B. D. at p. 46, "Libel on an individual is, and has always been, regarded as both a civil injury and a criminal offence. The person libelled may pursue his remedy for damages or prefer an indictment, or by leave of the

Court a criminal information, or he may both sue for damages and indict. It is ranked amongst criminal offences because of its supposed tendency to arouse angry passion, provoke revenge, and thus endanger the public peace, but the libeller is not the less bound to make compensation for the pecuniary or other loss or injury which the libel might have occasioned to the person libelled."

The fact that libel is a crime as well as a tort, produces other consequences in law which it may be well to briefly notice here, though they are not strictly within the scope of the present treatise.

No action can be maintained for the price of libellous pictures (Fores v. Johnes, 4 Esp. 97), or for their value, if destroyed by the person ridiculed. (Du Bost v. Beresford, 2 Camp. 511.) A printer cannot recover for printing a libel. (Poplett v. Stockdale, Ry. & M. 337.) If a printer undertakes to print a book for a certain price, and discovers as the work proceeds that the matter is defamatory, he may decline to continue the work, and can recover for such part of the work printed as is not defamatory in an action for work and labour done and materials provided, the special contract notwithstanding. (Clay v. Yates, 1 H. & N. 73; 25 L. J. Ex. 237; 4 W. R. 557; 27 L. T. (Old S.) 126.) Nor can an action be maintained for breach of a contract to furnish manuscript of defamatory matter (Gale v. Leckie, 2 Stark. 107), or of a contract to let rooms to be used for the delivery of blasphemous lectures (Cowan v. Milbourn, L. R. 2 Ex. 230; 36 L. J. Ex. 124; 15 W. R. 750; 16 L. T. 290), or for pirating a libellous book. (Stockdale v. Onwhyn, 5 B. & C. 173; 7 D. & R. 625; 2 C. & P. 163.) There is no copyright in any libellous or immoral book, or picture. A Court of Equity will not interfere in one way or another. It will not grant an injunction to restrain a piracy of an illegal book or picture, nor decree an account of the profits made thereby. (Per Lord Eldon, in Walcot v. Walker, 7 Ves. 1; in Southey v. Sherwood, 2 Mer. 435, and in Lawrence v. Smith, Jacob, 471.)

No contract will be implied to indemnify a party against the consequences of an illegal act, such as, the publication of a libel. The proprietor of a newspaper convicted and fined for the publication of a libel which was inserted in his paper without his knowledge or consent by the editor, has no right of action against the editor for the damages sustained through such conviction. (Colburn v. Patmore, 1 C. M. & R. 73; 4 Tyr. 677; and see Merryweather v. Nixan, 2 Sm. L. C. 9th ed. 569; 8 T. R. 186; Moscati v. Lawson, 7 C. & P. at p. 35.) Even an express promise to indemnify another

if he will publish a libel is void (Shackell v. Rosier, 3 Scott, 59; 2 Bing. N. C. 634; Arnold v. Clifford, 2 Sumner, 238); for it is a promise on an illegal executory consideration, an incitement to do an illegal act. But it has been decided in America that an express promise under seal to indemnify another against the consequences of an illegal act already done is binding. (Griffiths v. Hardenburgh, 41 N. Y. 469; Howe v. Buffalo and Erie Rail. Co., 38 Barbour (N. Y.) 124.)

So, too, a promise to abstain from publishing a libel is no consideration for a contract. (Brown v. Brine, (1875) 1 Ex. D. 5; 45 L. J. Ex. 129; 24 W. R. 177; 33 L. T. 703.) Whether such a promise could be enforced at all may be doubted. But in the absence of an express promise to that effect, no claim can be maintained by the publishers of a libellous work against any one who informs the persons libelled of the publication, even though such persons bring actions against the publishers and recover damages. (Saunders v. Seyd and Kelly's Credit Index Co., Limited, (1896) 75 L. T. 193; 12 Times L. R. 546.)

Criminal proceedings for libel may be taken either at common law, or under certain statutes; the ordinary remedy is by indictment, but there is also an extraordinary remedy by information, which is only granted in urgent cases, where the publication of the libel is likely to produce great public mischief, and must therefore be promptly suppressed.

Thus we see that there are two criminal remedies for libel-by criminal information and by indictment-in addition to the civil remedy of action for damages. Lush, J., says, in the passage cited ante, p. 7, the person libelled may "both sue for damages and indict;" and so in strict law he may. But practically he has to elect between his three remedies. He cannot take both civil and criminal proceedings at once; a judge would stay one or the other. Strictly, if he means to take both, he should take criminal proceedings first. But an action for damages after the defendant had been either acquitted or convicted for the same libel would be very hopeless work. And so would a criminal prosecution after an action. After a rule for a criminal information has been made absolute, no civil action can be brought. (R. v. Sparrow, 2 T. R. 198.) If it be refused or discharged, the applicant can indict the defendant, or by leave of the Court he may bring a civil action: see post, p. 570.