as a question of law, a publication is libelous on its face,1 and it is the duty of the jury to follow the instructions of the judge. It is the practice for the judge first to give a legal definition of libel, and then to leave it to the jury to say whether the facts necessary to constitute that offense have been proved to their satisfaction. The judge may state under what circumstances language in itself actionable may be spoken with impunity, and by way of illustration put a case differing in some respects. from that before the court." He is bound, upon a proper motion, to rule whether or not the declaration sets forth a cause of action. But in charging the jury, the judge is not bound to give his opinion as to the nature of the publication as a matter of law. And where the judge charged, "I find a difficulty in saying whether it (the publication) is a libel or not. Gentlemen, can you assist

me?" a motion for a new trial on the ground of misdirection was denied. But it is no misdirection that the

1 Darby v. Ouseley, 1 Hurl. & N. 1; Wagaman v. Byers, 17 Md. 183; Hunt v. Bennett, 19 N. Y. 173.

Hakewell v. Ingram, 2 Com. Law Rep. 1397; The State v. Jeandell, 5 Harring. [Del.] 475; and see Duffy v. The People, 26 N. Y. 588; Rex v. Burdett, 4 B. & Ald. 131; 2 Bennett & Hurd Lead. Cr. Cas. 388; The State v. Croteau, 23 Vt. 14; U. S. v. Morris, 1 Curtis, 53; Baylis v. Lawrence, 11 Adol. & El. 925; Rex v. Dean of St. Asaph, 21 How. St. Tr. 847; 3 T. R. 428, note; Sixth Rep. of Crim. Law Comm'rs, A. D. 1841; Forsyth's Hist. of Trial by Jury, 268; 2 Camp. Ch. Justices, 478; 3 Id. 56; Rex v. Miller, 20 How. St. Tr. 892; Rex v. Woodfall, 5 Burr. 2661; Shattuck v. Allen, 4 Gray, 541; Commonwealth v. Anthes, 5 Gray, 185; Commonwealth v. Porter, 10 Metc. 263; Goodrich v. Davis, 11 Metc. 473; Commonwealth v. Abbott, 13 Metc. 120; Pearce v. The State, 13 N. Hamp. 536; The People v. Crosswell, 3 Johns. Cas. 337.

Parmiter v. Coupland, 6 M. & W. 105; Cox v. Lee, Law Rep. 4 Ex. 288; and see Stannus v. Finley, 8 Ir. Rep. Com. Law, 264; Shepheard v. Whitaker, Law Rep. 10 C. P. 502.

4 Taylor v. Robinson, 29 Maine, 323.

Shattuck v. Allen, 4 Gray (Mass.) 540; Matthews v. Beach, 5 Sandf. 256.

6 Parmiter v. Coupland, 6 M. & W. 105; Snyder v. Andrews, 6 Barb. 43. But in Pennsylvania the rule is otherwise; there the court is bound to instruct the jury whether the publication is or is not libelous. (Pittock v. O'Neill, 63 Penn. 253.) Baylis v. Lawrence, 3 Perr. & D. 526.

judge, in addition to leaving the proper questions to the jury, stated his own opinion as to the libelous nature of the publication. Although the judge is to leave it to the jury whether, under the circumstances, the publication is a libel, on the general issue guilty or not guilty, yet if they find a verdict for the defendant on that issue, in a case in which no question is made as to the fact of publication, nor as to its application to the plaintiff, the court will set aside the verdict. And where the action was for calling the plaintiff a thief, and the defense was that the defendant so explained the words that the charge did not amount to an imputation of felony, the court being of opinion that the defense failed, charged the jury that the plaintiff was entitled to a verdict, and that the only question for them to determine was the amount of damages. The defendant excepted to this charge, and on appeal the charge was held to be proper.3

287. Where the circumstances of the publication are controverted or uncertain, a case is presented in which the court is to instruct the jury what condition of circumstances would render the publication privileged, and then leave it to the jury to determine the character of the publication, and give a verdict accordingly. For the jury cannot decide whether a libel was published on a justifiable occasion, without being told by the court what facts would constitute such an occasion. The uncertainty as to the facts may consist either in the happening or not happening of certain events, or in the

1

Darby v. Ouseley, 1 Hurl. & N. 1; Snyder v. Andrews, 6 Barb. 55; and see Empson v. Fairford, W. W. & D. 10; 1 Jurist, 20.

2

Hakewell v. Ingram, 2 Com. Law Rep. 1397; and see Levi v. Milne, 4 Bing. 195; Long v. Eakle, 4 Md. 454; Usher v. Severance, 20 Maine, 9; Goodrich v. Davis, 11 Metc. 474.

Van Akin v. Caler, 48 Barb. 58.

Duncan v. Brown, 15 B. Mon. 186.

question whether or not the language exceeded the privileged limits.

§ 288. The facts being uncontroverted, the court is to determine whether or not the publication is privileged. If the court decides that the publication is absolutely privileged, that of course determines the action; if the court decides the publication is conditionally privileged, then it is a matter of law for the court to determine whether there is any intrinsic or extrinsic evidence of malice. If the court decides this question in the negative, it directs a nonsuit or a verdict for the defendant, without reference to the jury. But if the court decides there is any evidence, either in the language of the publication itself (intrinsic evidence), or in the circumstances of its publication, from which a want of good faith or a bad intent (malice) on the part of the publisher may be inferred, it then becomes the duty of the court to submit to the jury, with appropriate instructions, and as a question of fact for their determination, whether in making the publication the publisher acted in good faith or otherwise ;3 for the question of malice in such a case is always a question of fact to be determined by the jury.

Thus, where defendant had charged plaint

1 Darby v. Ouseley, 1 Hurl. & N. 1; Wenman v. Ash, 13 C. B. 836. Cooke v. Wildes, 5 El. & Bl. 328; Somerville v. Hawkins, 10 C. B. 583; Taylor v. Hawkins, 16 Q. B. 308; Harris v. Thompson, 13 C. B. 333; Wenman . Ash, Id. 836; Mulligan v. Cole, Law Rep. 10 Q. B. 550; Caulfield v. Whitworth, 18 Law Times, N. S. 527; Fry v. Bennett, 5 Sandf. 54; Jarvis v. Hathaway, 3 Johns.

180.

3 Lancey v. Bryant, 30 Maine (17 Shep.) 466; Powis v. Smith, 5 B. & Ald. 850; Abrams v. Smith, 8 Blackf. 95; Mitchell v. Kerr, Rowe's Rep. 537; Cosgrove v. The Trade Auxilliary Soc. 8 Ir. Rep. Com. Law, 349.

4 White . Nicholls, 3 How. U. S. Rep. 266; Blackburn v. Elackburn, 4 Bing. 395; Robinson v. May, 2 J. P. Smith, 3; Bodwell v. Osgood, 3 Pick. 379; Toogood v. Spyring, I Cr. M. & R. 181; Bromage v. Prosser, 6 D. & R. 296; Haight v. Cornell, 15 Conn. 74; Clapp v. Devlin, 35 Superior Ct. (3 Jones & S.) 170; Zuckerman v. Sonnenschein, 62 Ill. 115; Gardner v. Slade, 13 Ad. & Ell. N. S. 796; Pattison . Jones, 8 B. & C. 578; see $$ 388, 399, post.

iff with stealing, and had her searched for a brooch missing, but afterwards found in defendant's possession, held to be a question for the jury whether the charge was made bona fide, and that the circumstances and occasion of making it should be left to their consideration; and to entitle a plaintiff "to have the question of malice submitted to the jury, it is not necessary that the evidence should be such as necessarily leads to the conclusion that malice existed, or that it should be inconsistent with the non-existence of malice; but it is necessary that the evidence should raise a probability of malice, and be more consistent with its existence than with its non-existence; "2 and where the only evidence of malice was claimed to be on the face of the publication, held that it ought to have been left to the jury to determine whether there was any malice. But where the libel purported to be the report of a proceeding in the insolvent court, and imputed to the insolvent's landlord (the plaintiff) that he colluded with the insolvent in putting in a fictitious distress; held that the judge ought not to have left it as a question to the jury whether the defendant intended to injure the plaintiff, but that if he thought the tendency of the publication injurious to the plaintiff, he ought to have told them it was actionable, and the plaintiff entitled to a verdict.*

'Padmore v. Lawrence, 3 Perr. & D. 209. Court to leave bona fides to jury, and then to determine whether or not the publication is privileged. (Stace v. Griffith, Law Rep. 2 Pri. C. C. 420; 20 Law Times, N. S. 197; Little v. Clements, I Ir. C. L. 194.) Whether or not the occasion gives the privilege is a question of law. Whether or not the defendant has fairly conducted himself in the execution of the privilege, is a question of fact for the jury. (Dickson v. Earl Wilton, 1 Fost. & F. 419; and see George v. Goddard, 2 Fost. & F. 689.)

2 Somerville v. Hawkins, 10 C. B. 583; and see Taylor v. Hawkins, 16 Q. B. 308; Harris v. Thompson, 13 C. B. 333; Wenman v. Ash, 13 C. B. 836; Henwood v. Harrison, Law Rep. 7 C. P. 606.

Gilpin v. Fowler, 9 Ex. 615; 18 Jur. 292. Held erroneous to charge jury that plaintiff had no cause of action unless words were understood by the hearers in a malicious sense. (Jarningham v. Fleming, 43 Miss. 710; but see Nelson v. Borchenius, 52 Ill. 236.)

4 Haire v. Wilson, 9 B. & C. 643. Plaintiff was arrested on a charge of robbery,

289. The amount of damages is to be determined. by the jury, but the court should instruct them as to the rules by which they should be governed in fixing the amount.' A general instruction to find such damages as under all the circumstances they thought right, was held to be improper. It was held no ground for exception that the judge advised the jury to give only nominal damages. A charge that compensatory damages are to be given where the publication is without malice, and that compensatory damages are such as will repay the costs and trouble of the suit and of disproving the defendant's allegations, was held right, although it has been held erroneous to charge the jury to take into con

4

and twice arraigned before a magistrate. Defendant published in a newspaper reports of the proceedings; one report was headed "Daring robbery," and the other "Charge against a barmaid." It appeared in evidence that the report in manuscript was headed “Unfounded charge against a barmaid," but the word unfounded was omitted in the report as published. On the trial a nonsuit was ordered, but a new trial was granted. (Street v. Licensed Victuallers' Soc. 22 Weekly Rep. 553.) 1 True v. Plumley, 36 Maine, 466. Held that in directing the jury as to damages, it was not necessary for the judge to caution the jury as to the amount of injury sustained, by telling them to take into consideration the fact that one publication only had been proved, and that a mere sale to the plaintiff's agent of a copy of the paper containing the libel. (Brunswick v. Harmer, 14 Q. B. 189.) If there was only one witness to the speaking of words charging theft, and he testifies that his opinion of the person slandered was not thereby affected, and that he still believed him to be honest, yet, if the words were spoken maliciously, it is erroneous to limit the jury to nominal damages. (Markham v. Russell, 12 Allen [Mass.] 573.)

2 Duncan v. Brown, 15 B. Mon. 186.

3 Matthews v. Beach, 5 Sandf. 256. Where the judge recommended the jury to give nominal damages, but the jury gave £5 damages, the court refused to set the verdict aside. (Chilvers v. Greaves, 5 M. & G. 578.) The right of the court to direct a verdict for nominal damages doubted. (Strong v. Kean, 13 Irish Law Rep. 93; and see Sanderson v. Caldwell, 45 N. Y. 398.) Where the publication complained against was the publication, in the defendant's newspaper, of a printed report of a committee of investigation distributed to the shareholders in a company, the judge charged the jury that although the publication by the defendant was unauthorized, yet, as the publication to the shareholders was authorized, they might give nominal damages. (Davis v. Cutbush, 1 Fost. & F. 487.) In an action against a newspaper for publishing a libelous item of news, the proprietors not having acted with express malice, and not having shown negligence in their choice of reporters, held that exemplary damages should not have been allowed. (Detroit Daily Post Co. v. McArthur, 16 Mich. 447.)

4 Armstrong v. Pierson, 8 Clarke [Iowa], 29.