sion. My experience in the administration of criminal justice shows me that the business of a marine-store dealer cannot be carried on without bringing its proprietor into close proximity with the dishonest part of the community, and therefore requires the exercise of great care and caution. Many who carry on that business have aided the police with most commendable zeal, and have been the means of bringing many dangerous criminals to justice. Others, on the other hand, have been found but too ready to afford facilities for the disposal of stolen property. If you consider that the handbill issued by the plaintiff has the dangerous and immoral tendency attributed to it by the defendant, then I think he has done that which may be salutary to the community. If that is your opinion, and you think he has not been influenced by malice against the plaintiff, but has acted solely from a desire to counteract the dangerous tendency of the plaintiff's publication, your verdict ought to be for the defendant.

The jury returned a verdict for the defendant.

Ribton, on a former day in this term, obtained a rule nisi for

*352] a new trial on the ground of misdirection on the part of the

Lord Chief Justice, "in not calling the attention of the jury to the first count, and in directing them that the law applicable to the criticism of a book applied equally to a handbill;" and also on the ground that the verdict was against evidence. There ought of necessity to have been a verdict for the plaintiff upon the first count; for, the observations of Alderman Humphery were altogether voluntary, unauthorized, extrajudicial, and clearly defamatory in their character, and wholly incapable of justification, and therefore the defendant could not justify their repetition: M'Gregor v. Thwaites, 3 B. & C. 24 (E. C. L. R. vol. 10), 4 D. & R. 695 (E. C. L. R. vol. 16); Lewis v. Levy, 27 Law J., Q. B. 282. The attention of the jury here was altogether withdrawn from the first count. [ERLE, C. J.-If my attention had been drawn to it, I should have told the jury it was for them to say whether the whole did not come within the definition of fair and reasonable criticism of the plaintiff's handbill.] There was no evidence to warrant the jury in finding that it was a fair comment on the handbill. [WILLIAMS, J.-Whether libel or no libel is for the jury, unless a question of privileged communication arises. The judge may if he will assist the jury by telling them his opinion of it; but he is not bound to do so: Baylis v. Lawrence, 11 Ad. & E. 920 (E. C. L. R. vol. 39), 3 P. & D. 526. That was a somewhat remarkable case. With respect to the first issue, on not guilty, Lord Abinger said to the jury," I own I find a difficulty in saying whether it is a libel or not. Gentlemen, can you assist me?" And he gave them no other direction as to that issue. Upon a motion for a new trial, on the ground of misdirection, Lord Denman said: "I have always followed the practice adopted in this case by Lord Abinger, leaving the jury to say whether, under *all the circumstances, the publication amounts *353] to a libel. That practice is analogous to the enactments of the statute 32 G. 3, c. 60. The statute, indeed, is applicable only to criminal cases but it was a declaratory act; and the importance of declaring the law existed only in the case of criminal libels. The act, therefore, furnishes clear evidence that the judge is not, in civil cases, bound to state his opinion whether the publication be libellous or not: and this agrees with the late decision of the Court of Exchequer in Parmiter v.

Coupland, 6 M. & W. 105." And Littledale, J., said: "It was at one time thought that the jury had nothing to do with the question as to the nature of the publication, upon the trial of an indictment. Then the statute 32 G. 3, c. 60, was passed, declaring that the jury might find a general verdict upon the whole matter, with liberty to the judge to give his opinion at his discretion. Although that act applied more particularly to criminal cases, yet I know no distinction between the law in criminal cases and that in civil in this respect. Therefore, that which has been declared to be law in criminal cases is the law in civil cases: and the Lord Chief Baron was entitled to do as he did."]

A rule nisi having been granted,

Edwin James, Q. C., Lush, Q. C., and Manley Smith, showed cause. -There was no misdirection. The Lord Chief Justice took the law as laid down by Lord Ellenborough in Tabart v. Tipper, 1 Campb. 350: and in the course of his summing up he distinctly called the attention of the jury to both the articles complained of. [ERLE, C. J.-Nobody claimed more in respect of the one count than of the other.] The plaintiff, who carries on the business of a marine-store dealer, circulates a handbill of a very peculiar *description about his trade. Now, [*354 if a man, for the purpose of his trade,-whether he be a marine-store dealer, or a tailor, or the proprietor of a theatre or other place of public entertainment, puts forth a document of this sort, the public press is as much authorized to comment upon its mischievous and dangerous tendency as in the case of a book, a review, a statue, a picture, or any other work of science or art. In the case of a book, it will not be suggested that the direction of my Lord was wrong: and certainly one would think the rule applied à fortiori to a handbill. It appears that Alderman Humphery, who resides at Clapham, having obtained possession of one of these handbills, and seeing at once their evil tendency, took it with him to the Guildhall justice-room, and publicly called attention to it. The defendant does not seek to justify the statement there made by the alderman, on the ground that it occurred in a public court of justice; and therefore the doctrine laid down by the Court of Queen's Bench in Lewis v. Levy, 27 Law J., Q. B. 282, has no application. But, this document having become public property, the defendant, as proprietor of a public journal, was justified in making fair and temperate comments on it: and he has not transgressed the recog nised limits. [BYLES, J.-The matter upon which the first count is founded is not a criticism by the editor: it purports to be a report or account of what was said by Alderman Humphery.] It is not the less privileged because the defendant adopts the criticism of another. [BYLES, J.-Has it ever been held that a verbal statement is entitled to the privilege?] Probably not: but, if a written comment be justifiable, à fortiori a verbal one must be.(a) Suppose, upon the *issuing of this handbill, the inhabitants of the district had held [*355 a meeting for the purpose of ascertaining the best mode of counteracting the pernicious tendency of its allurements, and the language here used had been embodied in a speech, would not a report of that speech have been justifiable, on the ground that it was a fair and

(a) Otherwise, a blind reviewer, or one who dictates his criticisms to an amanuensis, would be excluded from the protection afforded by this rule of law.

legitimate criticism of the publication? [KEATING, J.-You do not contend that a critic is justified in imputing personal or dishonest motives?] Certainly not. [KEATING, J.-Are there not many passages in the course of the editorial remarks which it is impossible to read without feeling that they convey very serious insinuations against the plaintiff?] No doubt many of them are strongly expressive of dissatisfaction at the plaintiff's conduct and motives in publishing such a document. But the language of criticism is not to be too rigidly scanned. Take the case of an indecent print or book: is a man bound to lay on his strictures upon the tendency of the production with a sparing hand? In the justly celebrated case of Carr v. Hood, 1. Campb. 354, n., Lord Ellenborough lays down the rule as to literary criticism in a manner which has never yet been impugned. "One writer," he says, "in exposing the follies and errors of another, may make use of ridicule, however poignant. Ridicule is often the fittest weapon that can be employed for such a purpose. If the reputation or pecuniary interest of the person ridiculed suffer, it is damnum absque injuriâ. Where is the liberty of the press, if an action can be maintained on such principles? Perhaps the plaintiff's Tour through Scotland is now unsaleable: but, is he to be indemnified by receiving a compensation in damages from the person who may have opened the eyes of the public to the bad taste and inanity of his compositions? Who would have bought the works of Sir Robert Filmer, after he *356] *had been refuted by Mr. Locke? But, shall it be said that he

might have sustained an action for defamation against that great philosopher, who was labouring to enlighten and ameliorate mankind? We really must not cramp observations upon authors and their works. They should be liable to criticism, to exposure, and even to ridicule, if their compositions be ridiculous: otherwise, the first who writes a book on any subject will maintain a monopoly of sentiment and opinion respecting it. This would tend to the perpetuity of error. Reflection on personal character is another thing. Show me an attack on the moral character of this plaintiff, or any attack upon his character unconnected with his authorship, and I shall be as ready as any judge who ever sat here to protect him but I cannot hear of malice on account of turning his works into ridicule." And he concluded by telling the jury, that, "if the writer of the publication complained of had not travelled out of the work he criticised, for the purpose of slander, the action would not lie; but, if they could discover in it anything personally slanderous against the plaintiff, unconnected with the works he had given to the public, in that case he had a good cause of action, and they would award him damages accordingly." [ERLE, C. J.-The language of the same learned judge in Tabart v. Tipper, antè, p. 350, is also very cogent.] In Soane v. Knight, M. & M. 74 (E. C. L. R. vol. 22), Lord Tenterden, in summing up, says: "This publication professes in substance to be a criticism on the architectural works of the plaintiff. On such works, as well as on literary productions, any man has a right to express his opinion, and, however mistaken in point of taste that opinion may be, or however unfavourable to the merits of the author or artist, the person entertaining it is not precluded by law from its fair, reasonable, and temperate expression. It may be fairly and *reasonably expressed, although *357] through the medium of ridicule." In Thompson v. Shackell, M. & M. 187 (E. C. L. R. vol. 22), where the proprietor of a newspaper

described a certain painting of the plaintiff, an artist, as a mere daub, and used other strong terms of censure, Best, C. J., in summing up to the jury, said: "The question for you is, whether the publication is a fair and temperate criticism on the painting of the plaintiff, or whether it be made the vehicle of personal malignity towards the plaintiff. I have myself (in Dunne v. Anderson, R. & M. 287 (E. C. L. R. vol. 21),) acted on the doctrine of my Lord Ellenborough in the case referred to (Carr v. Hood), though I do not go quite so far as he did in that case, because I think no personal ridicule of the author is justifiable; but, if this be really an honest criticism, and no more, this defendant is entitled to your verdict. If he has exceeded the limit of fair and honest criticism, then you will find for the plaintiff." That is in substance the manner in which the jury were directed in the present case. So, in Dibdin v. Swan, 1 Esp. N. P. C. 28, Lord Kenyon says,-"The editor of a public newspaper may fairly and candidly comment on any place or species of public entertainment; but it must be done fairly and without malice or view to injure or prejudice the proprietor in the eyes of the public.(a) If so done, however severe the censure, the justice of it screens the editor from legal animadversion; but, if it can be proved that the comment is unjust, is malevolent, or exceeding the bounds of fair opinion, such is a libel, and therefore actionable." And Lord Tenterden, in Macleod v. Wakley, 3 C. & P. 311 (E. C. L. R. vol. 14), says: "Whatever is *fair, and can be reasonably said of the works of [*358 authors, or of themselves as connected with their works, is not actionable, unless it appears, that, under the pretext of criticising the works, the defendant takes an opportunity of attacking the character of the author; and then it will be a libel." And see Delany v. Jones, 4 Esp. N. P. C. 191. Here, the comments were fully justified. Every man knows that the first temptation to domestic dishonesty is inculcated by this sort of dealing. Suppose a handbill were published by a candidate at an election, saying that those electors who voted for him would not be forgotten,-would not a public journalist be justified in commenting upon it in the strongest of terms? What can be more insidious, more dangerous, and more fatal to society than the dissemination of such a document as this? And whose duty is it to criticise, to expose, and if necessary to stigmatize, any publication or any practice of trade which has a tendency to corrupt and to debase the public morals, if it be not that of the journalist? What would become of the boasted liberty of the press, if this be not conceded to it? The jury expressly negatived all personal imputation. [ERLE, C. J.-I told them, that, if there was a word which went beyond fair remark upon the contents and the effect of the handbill, or contained any attack upon the plaintiff in his private life, the publication would be unjustifiable.(6) I certainly said that I could find none such; but I left it to the jury to exercise their own judgment upon it.] The direction was strictly in accordance with the law which has prevailed ever since the time of Lord Ellenborough. And there is no pretence for saying that the verdict was against evidence.

(a) It is difficult to see what other object an editor can have in writing strictures upon a public entertainment, if it be not to "prejudice the proprietor in the eyes of the public," by inducing them to abstain from patronizing his exhibition.

(b) See Green v. Chapman, 5 Scott 340, 4 N. C. 92 (E. C. L. R. vol. 33).

[ERLE, C. J.-That part of the rule presents the same question in another form.]

*Ribton and Lawrence, in support of the rule.-The statement

*359] made by Alderman Humphery, being non-judicial, voluntary, and

unauthorized, is clearly without the protection which the law has thrown around "fair and temperate criticism." In M'Gregor v. Thwaites, 3 B. & C. 24 (E. C. L. R. vol. 10), 4 D. & R. 695 (E. C. L. R. vol. 16), where the matter brought before the magistrate was not brought before him in his judicial character, or in the discharge of his magisterial functions, its publication could not be justified on the ground of its being a correct report of the proceedings. It is only where the publication consists of "a fair, correct, and impartial (though not verbatim) report of a trial in a court of justice," without any comment reflecting upon any of the parties whose names appear in it, that it is justifiable: Lewis v. Levy, 27 Law J., Q. B. 282. Lord Campbell there says: "As to magistrates, if, while occupying the bench from which magisterial business is usually administered, they, under pretence of 'giving advice,' publicly hear slanderous complaints over which they have no jurisdiction, although their names may be in the commission of the peace, a report of what passes before them is as little privileged as if they were illiterate mechanics assembled in an alehouse." What possible justification can there be for the heading of the article set out in the first count,— "Encouraging servants to rob their masters?" How can it be said that that does not convey a serious personal imputation upon the plaintiff? It is like the heading of the publication in Lewis v. Clement, 3 B. & Ald. 702 (E. C. L. R. vol. 5), "Shameful conduct of an attorney," which was held to deprive the defendant of the immunity he would otherwise have been entitled to. There is no analogy between a document of this sort and a book or a work of art. The author and the artist challenge and invite criticism. But this is a mere price-list. A bookseller's catalogue of necessity *must contain many books of an immoral or an irre*360] ligious tendency; yet no one could for a moment suggest that a newspaper editor would therefore be justified in writing of the person issuing it that he is an immoral or an irreligious man. The ground of justification in cases of this sort extends no further than in the case of privileged communications: see Somerville v. Hawkins, 10 C. B. 583 (E. C. L. R. vol. 70); Taylor v. Hawkins, 16 Q. B. 308 (E. C. L. R. vol. 71); Gilpin v. Fowler, 23 Law J., Exch. 152. In Tuson v. Evans, 12 Ad. & E. 733 (E. C. L. R. vol. 40), Lord Denman says: "Any one, in the transaction of business with another, has a right to use language bonâ fide, which is relevant to that business, and which a due regard to his own interest makes necessary, even if it should directly, or by its consequences, be injurious or painful to another: and this is the principle on which privileged communication rests: but defamatory comments on the motives or conduct of the party with whom he is dealing, do not fall within that rule." And in Harrison v. Bush, 5 Ellis & B. 344, 348 (E. C. L. R. vol. 85), Lord Campbell says: "During the argument, a legal canon was propounded for our guidance by the plaintiff's counsel; and this we are willing to adopt, as we think that it is supported by the principles and authorities upon which the doctrine of privileged communications rests. A communication made bonâ fide upon any subjectmatter in which the party communicating has an interest, or in reference