turbid and muddy water, and because the grit settled upon them so thickly that they were very hard to cut. The result was that, not only trout, but coarse fish as well, had been driven almost entirely out of the plaintiffs' fisheries. By such pollution, moreover, the fish left in the river were rendered less ready to take and were kept short of food, and the suspended matter formed deposits on the spawning beds, and so made them unfit for spawning fish, and would prevent the hatching of ova and rearing of young fry.

The plaintiffs accordingly brought this action, claiming by their writ an injunction to restrain the defendant, his agents, workmen, and servants, from polluting the rivers Chess and Colne, to the prejudice of, and injury and damage to, the plaintiffs and their fisheries, in the river Colne, at Rickmansworth, and more especially from discharging into such rivers large quantities of water thick with yellow mud and other suspended matters, and from doing anything to injure the fish or fishing, or to silt up or otherwise prejudicially affect, injure, or damage the plaintiffs or their fisheries. The plaintiffs also claimed damages for the injuries already done, and any necessary inquiry.

The action was set down for trial without pleadings, and came on to be heard before Kekewich, J.

The defendant having ceased to discharge the matter complained of into the river before the trial of the action, the case was argued solely on the question of damages.

On the 9th Dec. 1896 the following judgment was delivered:

KEKEWICH, J.-The plaintiffs sue as the grantees from Lord Ebury and from another of the exclusive right of fishing with rod and line in the river Colne; and the first objection to the action on the part of the defendants is that there is no proof of the title of the grantees. I should have thought, without hearing any argument, and I have not called on Mr. Warrington on that point, that this would fall within the principle that a possessory right was sufficient to constitute a title to maintain an action in the nature of trespass. I am not satisfied with that objection to the plaintiffs' action. The next objection is, that they are merely licensees, and as regards that, reference has been made to two cases: one a patent case of Heap v. Hartley (61 L. T. Rep. 538; 42 Ch. Div. 461); and the other a case on motion to arrest judgment arising out of a licence. I endeavoured, as well as I could, to follow Mr. Bramwell Davis's argument in support of the applicability of those cases to the present, but I confess I have been unable to do so. I do not see why the plaintiffs, assuming them for the moment, as I must for this point, to be only licensees, or, as I prefer to say, grantees of the exclusive right to fish with rod and line, should not sue for interference with the exercise of the rights which have been granted to them. It is true that no authority has been produced for that specific character of action. But it seems to me to rest absolutely on the right a man has of having, not necessarily property, but something which is valuable, granted to him, call it an incorporeal hereditament, or call it what you like, I do not think it matters in the least. If a stranger comes in and interferes with or trespasses on his right in that way, it seems to me

[CT. OF APP.

as

that that ought to constitute and does constitute a right of action. Then the third and last objection to the plaintiffs' title is, that they are not representatives of the True Waltonian Society. As a matter of fact, they are so treated in the grant as being the representatives of the True Waltonian Society. It is said they can only sue in respect of the damage and injury to themselves. I am not sure that there is any substance at all in that objection that they could not, as grantees, recover damages done to the subject of the grant. But I put it aside for this reason: that I should not hesitate for a moment, if it were necessary, even at this last stage of the case, to amend, by adding all the members of the True Waltonian Society as plaintiffs, as this is a case without pleadings where the objection has not been taken by defence. A different objection comes under this head, that Lord Ebury is not the plaintiff, and that is also found under the second head, and perhaps I ought to have noticed it. If Lord Ebury or the grantor in the other grant had been the plaintiff, I should not have been trying the action as I have done, for it is perfectly clear, that as against a riparian owner the defendant has no right to pour this dirty stuff, whatever it is, into the river Colne, and there would have been an end of the case on that simple and short ground at once. Also, no doubt, Lord Ebury has certain interests reversioner, as grantor, which support the plaintiffs' case as regards the fish, but I repeat it seems to me the plaintiffs are entitled to sue as grantees in their own right. Now what is their cause of action, and what is their cause of complaint? In the first place, it is, to my mind, perfectly immaterial what this dirty water contains which has been day after day for a long period of time poured by the defendant through the Chess into the river Colne. It is perfectly immaterial what the analysis of that substance is, whether it is clay, whether it is fine sand, or whether it is silica, or what the constituent parts are. Whether it is pure or impure, it is established beyond doubt, and it is part of the defendant's case, that it consists of very finely divided particles, not held in solution, but in suspension, carried on for a considerable distance when there is a large volume of water, settling down when the rapidity of the water ceases and there is more opportunity for the law of gravitation to operate. That is really the defendant's case. We need not go to the plaintiffs' evidence for that at all. Then what is the effect of it? The effect of it undoubtedlythere is no question about it at all-may not be to injure the fish, at any rate the adult fish, so as ultimately to kill them, but the substance does, according to the expert evidence, get into their gills, and if that happens where you have immature fish, or very young fish, it may very likely kill them. If you have it on the spawning beds it certainly will kill the ova to a great extent, and also destroy such ova as are hatched. On that the evidence is perfectly clear. Then it is said that it does not drive fish away. They may be there, they may be somewhere, it is quite impossible, of course, to say that the fish are not in some part of the stream, for this, again, is proved perfectly clearly that the fish are not on the spawning beds, or in their immediate neighbourhood, and that they ought to be there at this present time of year if nature is operating

in the usual way. These are two facts which seem to me to hang together, and to bring one to a very clear conclusion. You have this stuff being discharged into the river by the defendant, which, on the evidence, does irritate the fish, and would kill them; that is to say, would kill the ova and young fry, and you find that the fish are not where they ought to be at this time of the year with the view to producing those ova and fry in the due course of nature. It is as clear a case of post hoc propter hoc as one could very well have, quite apart from any further evidence. That seems to me to be the substantial part of the case the interference with the spawning beds. Then it is said that the fish will come back. On that the expert evidence is not plain. I conclude that the fish will come back to some extent if the water is clear; next year with the spring floods some will drop back. I take it only as a question of evidence; but the evidence is plain that the tendency of the fish at this time of the year is to work up stream, and that they will do that even through muddy water, or foul water, in the hopes of finding proper spawning beds above. I am not for a moment professing to know anything about it myself, but am simply making a deduction. It seems to me that if the fish at this time of the year, year by year, work up the stream, and rivers are not altogether denuded of fish, it follows that some must drop back in the spring. Otherwise, in a short time, the lower reaches would be completely denuded. To what extent that happens the evidence does not very much assist me, possibly because these gentlemen who know a great deal about all these things cannot really tell; but the fish will go up now, and I repeat, it is perfectly clear they have gone up. [His Lordship referred to the evidence on this point, and continued:] Therefore it seems to me that so far there has been an injury done to the right of fishing by this water coming down and permeating the plaintiffs' water, and being deposited as silica, or whatever it is, on the spawning beds, so as to interfere with the fish being in the water or frequenting the spawning beds; and that they have gone away. That seems to me to be the real grievance. I have very little doubt but that the defendant did interfere with the fishing. At this moment I have really spoken of nothing but trout fishing, but I will say a few words about the other fish. [His Lordship considered the facts relating to the coarse fish, and continued:] It has been proved that the effect on the fish is that the stuff makes the trout what is called "sick," and there has not been a suggestion that the trout would not be sick outside the limit of discolouration. The mere fact that they cannot see the bait, whether it be fly or any other kind of bait, is only a very small portion of the injury, because that might affect only part of the stream. The real injury on this part of the case is that trout have been made sick. Then it is said that the fouling only lasts a short time, because the defendant's workmen only work eight and a half hours a day, and do not pump dirty water on Sundays. It has been proved, however, in this case, that when once you have made fish sick, it may take days and days before they touch bait at all. So that I get a distinct interference with the fish in that way. But I am bound to say I do not see my way to giving any damages for that. It is not worth while to con

[CT. OF APP.

sider whether I could give nominal damages or not for the interference with the right. The remedy for that, no doubt, was an injunction, and the plaintiffs, whether owing to its being the Long Vacation, or to the difficulty of the case, or for some other reason, could not get an injunc tion, and the case was postponed. But if the plaintiffs are entitled to any remedy at all, as I should think they are, knowing all the facts, it would be an injunction and not damages. Then as regards the coarse fish, I do not think I have any evidence sufficient to justify me in coming to a conclusion at all, except as to the interference with the fishing. I think there is evidence of that, and I think the evidence goes to show, though not so strongly, that the coarse fish would be sick, and would be prevented from taking bait in the ordinary way. Still that is only an interference with sport, and I have no evidence at all respecting the coarse fish leaving the water. I think, therefore, that I must dismiss the coarse fish altogether from my consideration. Then it comes to a question of damages as regards really the trout fishing, and I say a question of damages, because now the work has come to an end. It is not suggested that there is any pumping going on now, or that any further pumping is at all likely, though I suppose it is still possible. I confess I do not think that is by any means an easy question. This is a valuable right. The plaintiffs pay a considerable rent for the right of fishing, and more than that, by the terms of their grant, they are bound, besides cutting weeds, to keep up the banks, and they are bound to expend, under Lord Ebury's grant, a sum of not less than 1667. in weed-cutting, banking, and the stocking of the fishery, and that is exclusive of a sum in hand at the date of the grant which was to be expended on stocking only. [His Lordship discussed the facts relating to the stocking, spawning beds, and cutting weeds, coming to the conclusion that the plaintiffs were not entitled to an damages on either of those grounds, and continued:] I do not see my way to giving them any damages under any of the heads mentioned except the real injury to the fishing-the destruction of the spawning beds, and, connected with it, the driving of the fish out of the river, that is to say, out of their fishing. I do not take those as two separate heads; I endeavour to treat them together. The fish are gone because the spawning beds are spoilt. The spawning beds are not used because the fish are gone; the two things run together, and they are based entirely on the same reason that the place is, as instinct tells these fish, unwholesome for the purpose. Therefore it really comes to a question of destruction of the spawning beds. It is not a question of this year only. The fish which ought to be spawned now to bring out the young fry in the spring of next year will be useless for 'fishing purposes during the year 1897. [His Lordship gave details as to this and continued:] I think I must take into consideration that, as this year's spawning would be interfered with, the stock of fish in the river must be seriously diminished. If it had not been for this consideration I should have reduced the damages somewhat. I am perfectly aware that I can only do it by rule of thumb. I see no reason for directing an inquiry as to damages. In the first place, I have gone into the whole matter here, and I think it had

better be done with once for all; and, in the second place, I have no reason to think that an official referee or chief clerk, or anyone else, would know more about it than I do. I have heard the case at sufficient length, and I have heard all the evidence upon it. I have endeavoured to measure the damages, and I have stated the grounds on which I estimate the damages. I think the damages should be 150l. There will therefore be a judgment for the plaintiffs with 1501. damages, and the costs of the action.

From that decision the defendant now appealed.

Bramwell Davis, Q.C. and Kenyon Parker for the appellant. The rights created by the grants from Lord Ebury and Mr. Shakell respectively are no more than licences to fish. Therefore the plaintiffs have no right of property, but are mere licensees of the freeholders, without any interest in the soil or water of the river, and have no right of action against the defendant. A right to fish with rod and line alone is not a several fishery as known to the law, but a mere licence to catch such fish as the licensees happen to find in the river. There is no authority precisely on all-fours with the present case, but the law on the subject appears from the following decisions:

Webber v. Lee, 47 L. T. Rep. 215; 9 Q. B. Div. 315;

Hindson v. Ashby, 74 L. T. Rep. 327; (1896) 2 Ch. 1;

Attorney-General v. Emmerson, 65 L. T. Rep. 564; (1891) A. C. 649;

Muskett v. Hill, 5 Bing. N. C. 694;

Newby v. Harrison, 1 Johns. & Hem. 393;

Heap v. Hartley, 61 L. T. Rep. 538; 42 Ch. Div.
461;

Duke of Somerset v. Fogwell, 5 B. & A. 875;
Holford v. Pritchard. 3 Ex. 793;

Ibbotson v. Peat, 3 H. & C. 644.

[LOPES, L.J. referred to Holford v. Bailey (8 Q. B. 1000; 13 Q. B. 426) and Smith v. Kemp (2 Salk. 637). LINDLEY, L.J. referred to Comyn's Digest, tit" Piscary."]

Warrington, Q.C. and Ashton Cross, for the respondents, were not called upon to argue.

LINDLEY, L.J.-The plaintiffs in this case are the grantees-I am reading from Lord Ebury's grant of an exclusive right of fishing in the river Colne in Hertfordshire. The right of fishing thereby granted is only to extend to fair rod-and-line angling at proper seasons, and to netting for the sole purpose of procuring fish baits. Then there are provisions which may or may not be important, namely, that the lessees are to cut and keep down the weeds and attend to the banks and re-stock with fish. Now, the first question is, what is granted by this deed? What passed to the grantees by the words "exclusive right of fishing?" Mr. Bramwell Davis wanted to persuade us that they did not include the right of catching and taking away the fish caught— that it was a licence to hook and to return the fish when hooked to the water, I suppose. No authority whatever was brought to our attention in support of so very strange a contention as that; and, on looking into the authorities which one is accustomed to refer to in cases of this kind, one sees that such a proposition as that cannot for a moment be maintained. The law was laid down in the case, which has been referred to, of Smith v.

[CT. OF APP.

Kemp (2 Salk. 637), and is repeated in Comyn's Digest (tit. “Piscary ") : "If a grant be de libera piscaria, the grantee shall have the property of the fish there, and shall maintain trespass for fishing there." With reference to the right of taking away the fish hooked, you cannot draw any distinction between one kind of right of fishing and another. If a person chooses to pay anything for the sport of catching fish and returning them to the water, of course, he can do so; but that is not what is understood by lawyers or men of sense as a right of fishing. The right of fishing includes the right to take away fish unless the contrary is expressly stipulated. I have not the slightest doubt about that. Therefore, the plaintiffs have got a right of some sort as distinguished from a mere revocable licence. What is that? It is a good deal more than an easement; it is what is commonly called a profit à prendre. It is of such a nature that a person who enjoys that right has such possessory rights that he can bring an action for trespass at common law for the infringement of those rights. That is very old law. But it was very carefully considered, and the law will be found laid down, in Holford v. Bailey (13 Q. B. 426), which came before the Court of Exchequer Chamber. Again, if he has a possessory right, and if not a grantee by deed, but only claiming under an agreement, he can be said to have the use and occupation of the right. That was decided in the case of Holford v. Pritchard (3 Exch. 793). Therefore, we have the plaintiffs' rights pretty accurately defined. Now, the plaintiffs having got those rights, what has the defendant done? Has he interfered with them? He has not challenged those rights at all, but he has done that which prevents the plaintiffs from exercising those rights to the extent to which they would be entitled and would exercise them if not wrongfully prevented. What has the defendant done? He has worked out some gravel pits, and has washed the gravel, and has turned the dirty water containing a quantity of silt into the river Chess. That silt has found its way down to the river Colne, and has damnified the plaintiffs to this extent, that it has driven away the fish and injured the breeding there. Now, is that what is called a damnum sine injuria? It cannot be so, if I am correct in the first proposition that the plaintiffs have rights, and that those rights have been damnified, and damnified by fouling the river. What justification has the defendant for fouling the river Colne to the damage of anybody who has rights in that river? None at all. He was a wrong-doer the moment he sent the silt into the river. If the plaintiffs had no rights in the river, of course, they had no right legally to complain. It seems to me that this is a somewhat unusual case, and I am not aware of any precedent for what I may describe as an action of nuisance by the owner of a sole and exclusive right of fishing; but once grant such a right, he can sue in trespass for it. I cannot see why he could not maintain an action on the case for nuisance at common law. It seems to me that there is nothing in the points raised by the appellant when they are closely looked at, and that, therefore, the appeal must be dismissed with costs.

LOPES, L.J.-I am of the same opinion. The first question that we have to consider is, What passes by this grant: There are two grants, but

the same words are used in both, and I need only refer to Lord Ebury's grant. What is given in that grant is the exclusive right of fishing. It was argued by Mr. Bramwell Davis that all that that meant was a right to the grantees to amuse themselves; that they were entitled to hook the fish; and that, when they had hooked the fish and brought them to the bank, they were to be handed over to Lord Ebury. With all respect to Mr. Bramwell Davis, I could not follow him at all. I think that that is a kind of idea which would be ridiculed by anyone who knows anything about fishing, and I think that I may say also anybody who knows anything about the law appertaining to this subject. According to my view, what passed by that deed was an exclusive right to fish. When I look at Smith v. Kemp (ubi sup.) I find this: "Libera piscariâ, which is where the right of fishing is granted to the grantee, and such a grantee hath a property in the fish, and may bring a possessory action for them without making any title." It seems to me that it cannot be contended that this is only a mere licence; it is a profit à prendre. It is the right to fish in the water, and, when the fish are caught, it is a right to the property in the fish. What has the defendant done? I am not going into the precise things that he has done, because it is admitted that what he has done has lessened the number of the plaintiffs' fish, has interfered with the spawning grounds, and has thereby prevented ova and fry from being deposited as they otherwise would be. It therefore curtailed the rights to which, in my opinion, the plaintiffs were entitled. If that is the case, it is perfectly clear to my mind that there is a right of action in the plaintiffs, and that the judgment of the learned judge in the court below, who so held, is perfectly right.

RIGBY, L.J.-I am of the same opinion. It has been argued in this case that the plaintiffs have nothing more than a licence. Now, I consider that the distinction between a licence and a grant is as plainly marked out as anything in our law; and, if you find a person affecting to grant by deed rights in respect of real property which are capable of being so granted, that is a grant and not a licence. I do not mean to assert that there might not be a deed so particularly worded as to enable you to say that the grant did not mean what it appeared to mean. But a grant by deed creates an incorporeal hereditament, where the subject of the grant is of such a nature as the law allows an incorporeal hereditament to be granted. I will only read from the judgment of the Court of Exchequer, in Holford v. Bailey (ubi sup.), one passage, which is at p. 446 of 13 Q. B. There the question was as to the true point of the distinction between "licence" and grant"; and the learned judge who gave the judgment of the court says this: "To give the plaintiff a sole and exclusive right, even for an hour, a deed was necessary, and that would be a grant; and whether the grantee of a fishery had it in fee, or for a term of years, or even for an hour, he could sue for a disturbance during the time that the interest under his grant continued." The distinction between "deed" and "grant " is laid down very clearly, but I never heard, and I do not think anybody else ever did before this, of a case in which there was an argument addressed to the court, that what purports to be a grant by deed, there being nothing more than that, warrants it

66

[CT. OF APP.

But that same

case.

in being considered as a licence. passage also lays down what I conceive to be undoubted law, namely, that the grantee in such a case may sue for a disturbance. A disturbance is a very general phrase. In that case it was held that he might sue in trespass. Now, in that case there were three points raised in the court below (see 8 Q. B. 1000): one was, that you could not sue in trespass, but that you must sue on the case. That was met by an argument that the plea could not mean an action on the case. Then there was another point about several fishery, which we do not need to deal with because the decision of the Queen's Bench was overruled in that respect. But the important point was that you could not sue in trespass, and in the Court of Exchequer it was held that you might sue in trespass, and it was not necessary for them to decide the question whether that might not be a count in They said it was not necessary for them to decide it, but they saw no reason to doubt that the Queen's Bench were right there, and I believe they were, because, of course, everything in that count pointed to trespass. But that does not mean that you can only sue in trespass. Quite the contrary. The difficulty was because the action was in trespass, and therefore there was one form of disturbance. I cannot doubt, on the construction of the grant in the present case, the right of the plaintiffs by virtue of that grant to sue for a wrongful act-a wrongful act which operates as a disturbance of that right, which, indeed, is a very important matter in regard to the infringement of the right. The argument was pushed with the greatest courage to this extentthat, unless you tried to do the very thing that they were authorised to do, you might destroy the whole subject-matter of the grant, and be liable to no action at all; that the only way in which you might or could do it was by imitating them, or doing something which they are entitled to do under their grant. I never heard any case which gave the slightest colour to such a doctrine at all. I hold that, on the incorporeal hereditament, there is a right of action against any person who disturbs them, either by trespass, or by nuisance, or in any other substantial manner.

Appeal dismissed.

Solicitors for the appellant, Bircham and Co. Solicitor for the respondents, Arthur Price.

Tuesday, May 18.

(Before LOPES and RIGBY, L.JJ.)
MACHADO v. FONTES. (a)

APPEAL FROM THE QUEEN'S BENCH DIVISION. Practice-Pleading-Libel published in foreign country-Right of action in this country-No civil remedy in foreign country, but only criminal -Plea of the foreign law.

In order that an action may be maintained in this country in respect of a tort committed out of the jurisdiction, the act complained of must be a wrongful act both by the law of this country and by the law of the country where it was committed; but it is not necessary that it should be the subject of civil proceedings in the foreign country.

(a) Reported by E. A. SCRATCHLEY, Esq., Barrister-at-Law.

CT. OF APP.]

[CT. OF APP.

to do.

Held, that, the publication of the libel in Brazil was actionable here, the damages which flowed from the wrongful act being just the same as if the libel had been published in this country; and that, therefore, the plea was altogether bad, and ought to be struck out.

Phillips v. Eyre (22 L. T. Rep. 869; L. Rep. 6 Q. B. 1, at p. 28) and The M. Moxham (34 L. T. Rep. 559; 1 P. Div. 107, at p. 111) considered and

applied. Decision of Kennedy, J. reversed.

THIS action was brought for damages for an alleged libel of the plaintiff contained in a pamphlet in the Portuguese language alleged to have been published by the defendant in Brazil.

The defendant, who had delivered a defence denying the allegations of the statement of claim, and raising certain other defences, took out a summons, in the Manchester District Registry, for leave to amend his defence by pleading that, if (which was contrary to his contention) the pamphlet had been published in Brazil, by Brazilian law that publication could not be a ground of legal proceedings against the defendant in Brazil in which damages could be recovered; or, alternatively, that it could not be a ground of legal proceedings against the defendant in Brazil in which the plaintiff could recover general damages for any injury to his credit, character, or feelings.

The registrar allowed the plea to be added, and, on the 6th April 1897, his ruling was affirmed by Kennedy, J., sitting at chambers, although his Lordship expressed some doubt as to the plea and whether he ought to allow the amendment, and gave leave to appeal.

The plaintiff accordingly now appealed.

Montague Lush for the appellant.-The plea is bad, and the amendment ought not to have been allowed. The effect of it is that damages cannot be recovered for a libel in Brazil, and that therefore they cannot be recovered here for a libel published in Brazil. That is not sufficient. An act which would be actionable if committed in this country is actionable between parties in this country, and may be sued upon here although committed abroad, unless the act is shown to be justifiable or excusable by the law of the country where it was committed:

Scott v. Lord Seymour, 1 H. & C. 219 ;

Phillips v. Eyre, 22 L. T. Rep. 869; L. Rep. 6
Q. B. 1, at p. 28;

The M. Moxham, 34 L. T. Rep. 559; 1 P. Div. 107,
at p 111:

The Halley, 18 L. T. Rep. 879; L. Rep. 2 P. C. 193.

If the defendant were in a position to plead that the libel was justified by the law of Brazil, he

Joseph Walton, Q.C. and Arthur J. Ashton for the respondent.-The plea was properly inserted in the statement of defence. It was intended to allege that a libel could not be made the subjectmatter of civil proceedings at all in Brazil, but only of criminal proceedings. In cases of libel the law of Brazil provides only for criminal proceedings being taken by the State for the punishment of the libeller, and gives no remedy of any kind to, or on the suit of, the person libelled; or, in the alternative, the person libelled can only recover special damages occasioned to him by the libel. An act committed abroad, and not giving to the plaintiff in the country where it was done any right of action, is not actionable in this country. In other words, where an action is brought in this country in respect of a tort committed in a foreign country, it must be shown that the tort is actionable both here and in that country. The question whether the action would lie in the foreign country is not a question of procedure, but a question of substantive law, and the court will inquire as to that, and apply the law of the country where the act was done:

The M. Moxham, 34 L. T. Rep. 559; 1 P. Div. 107, at p. 111;

The Halley, 18 L. T. Rep. 879; L. Rep. 2 P. C. 193.

In Phillips v. Eyre (22 L. T. Rep. 869; L. Rep. 6 Q. B. 1, 28) there is nothing contrary to that view, which case is not really against the defendant, but in his favour. In Scott v. Lord Seymour (1 H. & C. 219), which is remarkably like the present case, a doubt seems to have been raised whether an action would lie in this country in respect of an act committed in a foreign country for which damages could not be recovered there:

1 Sm. L. Cas. 10th edit. p. 605, notes to Mostyn v. Fabrigas, Cowp. 161.

The defendant seeks to establish that in no way could he be made liable to the plaintiff individually in respect of the alleged libel; and that the offence, if there is any offence, is one which the State of Brazil alone can punish. If he is right in that, the action here would not lie.

Montague Lush in reply.-It is not necessary to consider the precise nature of the remedy in respect of a libel published in Brazil. . What has to be ascertained is whether in that country a libel is a wrongful act. If so, it is actionable in this country, and the remedy will be that which the English law provides.

LOPES, L.J.-In my opinion this appeal ought to be allowed. An action has been brought by the plaintiff against the defendant for a libel alleged to have been published by the defendant in Brazil, and as to the publication in Brazil the defendant has pleaded the plea that such a pub. lication cannot be the ground of legal proceedings against the defendant in Brazil, or, at any rate, that it cannot be the ground of any legal proceedings in Brazil in which general as distinguished from special damages can be recovered. The plea as it stands appears to me to go to remedy only. It says, in effect, no action for damages would lie in Brazil, but that, assuming that it would, the only damages that could be recovered would be special damages. Counsel