the words, and justifies them, or confesses the words, and by special matter shews that they are not actionable; 4 Rep. 14 a. Lord Cromwell's case ((k) post, 148); but it seems more usual now to give them in evidence under the general issue. It was resolved at a meeting of all the judges, by a large majority, that on

(g) [8 B. & C. 578. 9 B. & C. 403. 4 B. & Ad. 700. 2 Gale & D. 455. Fountain v. Boodle.] A servant cannot maintain an action against his master for not giving him any character. 3 Esp. 201. Carrol v. Bird.

(1) Peake's N. P. C. 4. Cristie v. Cowell. 1 Camp. 48. Thompson v. Bernard. 7 Taunt. 431. Harrison v. King. 4 Price, 46. S. C. So a fair comment on a literary production, although it may ridicule the work and the author, is not libellous; 1 Camp. 355. Carr v. Hood; unless it be made a vehicle for injurious attacks on the author's character unconnected with the work. Nightingale v. Stocklale, cited in Selwyn's N. P., title "Libel," 1013. [See further Accord. M. & Malk. 74. Soane v. Knight. lbid. 187. Thompson v. Shackell. 4 Bing. N. C. 92. Green v. Chapman. 5 Scott, 340. S. C. See also 3 Bing. 88. Dunne v. Anderson. Moo. 407. R. & Moo. 287. S. C.

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not guilty the truth of the words shall not be allowed to be given in evidence in mitigation of damages. 2 Str. 1200. Underwood v. Parks. Willes's Rep. 20 ( (1) post, 148). See as to a plea of justification, post, n. (6), to Craft v. Boite.

(3) A libel may be published either by speaking or singing, as where it is maliciously repeated or

In a late case these principles were applied to comments on a tradesman's advertisement or hand-bill, 9 C. B. N. S. 342. Paris v. Levy. In Gathercole v. Miall, 15 M. & W. 319, a doubt was suggested by Parke, B., as to the right of comment or criticism. on unpublished sermons. There is certainly a general right to comment fairly and properly upon and criticise public matters, for instance, the acts of a minister of state, and other subjects of public interest. 4 Law Rep. Q. B. 73. Wason v. Walter. 2 F. & F. 508. Turnbull v. Bird. But where the comment or criticism exceeds the fair and proper limits, it is no defence that the defendant bona fide believed in the truth of the libellous imputations. 3 B. & Sm. 769. Campbell v. Campbell v. Spottiswoode. 2 F. & F. 149. Wilson v. Reed. F. & F. 614. Morrison v. Belcher. 3 F. & F. 372. Seymour v. Butterworth.]

3

(i) So where the defendant

sung in the presence of others; or by delivery, as when a libel, or a copy of it, is delivered to another. 5 Rep. 125 b. Moor, 813. Lamb's case. So if a letter containing a libel is sent sealed to another, or to the party himself against whom it is made, it is a publication; 2 Black. Rep. 1038. 1 T. R. 110; though the contrary seemed to have been holden formerly. 2 Bac. Abr. 497. Libel (B.) 2, and Hob. 62. Barrow v. Llewellin. Ibid. 215. Hick's case ((m), post, 150). A libel may also be published by pictures or signs, as by painting another in an ignominious manner,

Wright. 3 Smith, 491. Carr v. Jones. 7 East, 493. S. C. under the names of Stiles v. Nokes. 4 F. & F. 262. Woodgate v. Ridout. Ibid. 224. Hedley v. Barlow. But he must publish the whole proceedings, and not merely the result as he himself draws it. 4 B. & A. 605. Lewis v. Walter. [4 B. & C. 475. Flint v. Pike. 6 D. & R. 528. S. C. 6 Bing. 213. Saunders v. Mills,

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or making the sign of a gallows, or other reproachful and ignominious sign upon his door, &c. 5 Rep. 125 b. ((n) post, 150). Though the publication of a libel must be stated in the declaration, yet it is sufficient to state such matter as amounts to a publication, without using the formal word published, and the jury must decide whether a publication be sufficiently proved or not. 2 Black. Rep. 1037. Baldwin v. Elphinston ((o) post, 150).

(4) It was objected in this case, that the defendant ought to have traversed the publishing of the petition to petition to any other persons who

520. S. C. 10 Bing. 519. Roberts v. Brown. 4 M. & Sc. 407. S. C. 3 Bing. N. C. 950. Delegal v. Highley. 5Scott, 154. S.C. But the privilege is not lost because, the proceedings being adjourned from day to day, the report appears in portions in different numbers of the defendant's journal. E. B. & E. 561.] And he must not add anything to the proceedings; for where the defendant headed his account with these words "Insol"vent Debtors Court-Shameful "conduct of an attorney-Eades "and Wood v. Carter," and then went on with an account of the proceedings, containing matter injurious to the plaintiff's professional character; a plea, justifying that the account was a true

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were not members of the committee. But it was resolved, that as the charge in the declaration was general, that the defendant published the libel to divers subjects, and the defendant justified the publication to divers persons being members of the committee, the plea was good without a traverse; but if the action had been for publishing it to divers persons by name, and defendant had justified the publication thereof to some by name, he ought to have traversed all the others. Lev. 240, 241. See also Com. Dig. Pleader (G. 2); which distinction appears to be well founded. For, in the former case, the plea

1

may

is consistent with the charge in the declaration. For the publishing of copies to divers subjects, being members of the committee stated in the plea, may well enough, for aught appears to the contrary, be the same publication with that to divers subjects mentioned in the declaration; and therefore to add a traverse would be against the rules of pleading. But in the latter case, the plea would be inconsistent; for the publication to C. and D. mentioned in the plea cannot possibly be the same publication with that to A. and B. charged in the declaration. See ante, 15. Bennet v. Filkins, n. (2).

tions or comments, from any quarter whatever, in addition to what forms strictly and properly the legal proceedings. 3 Bing. N. C. 920. Delegal v. Highley. 5 Scott, 154. S. C. E. B. & E. 537. Lewis v. Levy. The moment comments are made, the immunity is gone. E. B. & E. 344, per Lord Campbell. 3F. & F.286. Andrews v. Chapman.] It is not lawful to publish even a correct account of the proceedings of a court of justice, if such account contain matter of a scandalous, blasphemous, seditious, or indecent nature. 3 B. & A. 167. The King v. Mary Carlisle [sed quære de hoc] nor a

(5) Printing a libel may be an innocent act, but, unless qualified by circumstances, shall prima fucie be understood to be a publishing. It must be delivered to the compositor and the other subordinate workmen. Per De

correct account of ex parte proceedings before a magistrate; 5 Esp. 123. The King v. Lee. 2 Camp. 563. The King v. Fisher. [3 B. & C. 556. Duncan v. Thwaites. 5 D. & R. 447. S. C.; but this cannot be laid down as a universal proposition; for a report of such proceedings, if fair and correct, is legal if they have come to an end and there is no committal for trial. E. B. & E. 537. Lewis v. Levy; nor is there any privilege for an account of the proceedings before a royal commissioner. 6

C. & P. 385. Charlton v. Watton. So a report in a newspaper of what passed at a public meeting is not privileged. 7 E. & B. 229. Davison v. Duncan. Nor is a report of what occurred at a vestry held in pursuance of an act of parliament. 7 H. & N. 891. Popham v. Pickburn. But a report of what occurred before a registrar in bankruptcy in examining a debtor in custody, is

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Grey, C. J., in delivering the judgment of the Exchequer Chamber. 2 Black. Rep. 1038. Baldwin v. Elphinston ((p) post, 151).

(6) See ante, n. (1), 137.

privileged; for the registrar's court under such circumstances is a publie court. 1 Law Rep. Exch. 296. Ryalls v. Lealer. 4 H. & Colt. 555. S. C.] Nor is a correct account of the proceedings on a coroner's inquest, privileged, accompanied with comments, although it be not done maliciously: "for "the inquest before the coroner "leads to a second inquiry, in "which the conduct of the accused "is to be considered by persons "who ought to have formed no "previous judgment of the case." Per Bayley, J., in 1 B. & A. 379. The King v. Fleet. And although, in general, the proceedings of a court of justice may be published, yet the court has the power to make an order prohibiting the publication during the particular trial, or during several trials on the same subject-matter, and may punish a disobedience to such order by fine. 4 B. & A. 218. The King v. Clement. [See E. B. & E.

560.] Although a member of parliament is privileged in his place in the House of Commons, yet if he publish his speech, and it contain libellous matter, he is liable to a prosecution. 1 M. & S. 273. The King v. Creevey. [And so is the law as to a speech by counsel. 4 B. & C. 473. 6 Bing. 213. 10 Bing. 519. But in Davison v. Duncan, 7 E. & B. 233, Lord Campbell expressed his opinion that a publication of a report of his speech by a member of the House of Commons bond fide addressed to his constituents would be privileged. And in 4 Law Rep. Q. B. 73. Wason v. Walter, it was most deliberately and solemnly decided that a faithful report in a public newspaper of a debate in either House of Parliament containing matter disparaging to the character of an individual, as having been spoken in the course of the debate is not actionable at the suit of the party whose character has thus been called in question.]

() [Such a plea must go on to deny malice, or must aver that the publication was made honestly or bona fide. It is not sufficient to allege that the defendant believed the words spoken to be true. 2 Bing. N. C. 372. Smith v. Thomas. 2 Scott. 546. S. C.] (1) But the defendant may prove under the general issue in mitigation of damages, rumours previously current. 2 Camp. 251. Lord Leicester v. Walter. 1 M.

& S. 284. v. Moor; but he cannot prove facts to negative the presumption of malice. 1 D. & R. N. P. C. 10. Waithman v. Weaver, per Abbott, C. J. So he may prove that the substance of the libel had been published in a newspaper without producing the newspaper. Holt's N. P. C. 299. Wyatt v. Gore. The reason is, that all these matters shew that the plaintiff had not at the time of the publication of the slander a good and unsullied character, with respect to the subject-matter of the slander, and consequently that the damage he has sustained is proportionably small. But the truth of the charges made against the plaintiff does not shew this; for the charges, however true, might have been unknown, and the plaintiff's character might have been uninjured but for the defendant's publication. If, however, there be a justification on the record as well as the general issue, the defendant is not at liberty to give such evidence as above in mitigation of damages. 1 M. & S. 286, n. 1 M. & S. 286, n. Snowden v. Smith, per Chambre, J. Nor can the defendant give in evidence under the general issue that the slander was communicated to him by a third person. Holt's N. P. C. 534. Mills v. Spencer. [2 M. & Rob. 312. Talbutt v. Clark. In 6 Bing. 213. Saunders v. Mills.. 3 M. & P. 520. S. C., the defendant was allowed to shew that he copied the statement from