1824. M'GREGOR v. THWAITES. character of another man, it may be conceded that he is (a) 8 T. R. 293. 1824. M'GREGOR v. whatever, simply publishes in print what one man says to another upon a subject of general importance, and deeply interesting to the public, can be liable to an action unless he can prove the truth of the facts published. [Bayley, J. THWAITES. What a man says by oral communication concerning another may not be actionable, unless it is afterwards reduced into writing. Mr. Prince and Captain Antrim may have said something to the Lord Mayor which perhaps would not be actionable as against them: is the defendant then excused in putting what they said into writing and alleging that he has truly represented what they did say?] If the publication is bonâ fide, it is a sufficient excuse. The circumstance of its being reduced into writing is a mere technical objection and can make no difference if there be no malice. Considering this, not as the publication of what took place before a magistrate or other person having competent jurisdiction, but simply as the repetition of what one man says to another, still it would come within the doctrine of Lord Northampton's case (a) inasmuch as the defendants have given up the authors of the supposed slander so as to enable the plaintiff to proceed against them. [Bayley, J. But according to that case, you must not only give up the name of the author, but you must shew a cause of action against the party stated to be the author. Now non constat that any action would lie against Mr. Prince or Captain Antrim for what they stated to the Lord Mayor, But according to the case of Maitland v. Goldney (b) an action is maintainable against a person who maliciously repeats slander although he names his author at the time.] Still the question would be, whether it was a malicious publication or made with an improper motive, for if there be no mala fides the defendants are justified. This is a bonâ fide publication of what takes place relating to a matter in which the public is deeply interested, and is it to be said that the public is to be kept in ignorance of matters of so much importance, or the publisher of it to be held liable to an action, because he cannot prove the truth of the (a) 12 Rep. 133. (b) 2 East. 426. 1824. M'GREGOR v. THWAITES. facts, although he relates accurately what he has heard? There is one instance, at least, in which the putting matter injurious to the character of another into writing would not be actionable. Giving an untrue character of a servant is not actionable unless there is express malice; but suppose the same character were reduced into writing would that make any difference? Clearly not. Then, upon the same principle, the matter in question being a faithful report of what Mr. Prince and Captain Antrim said, is protected. They cited Knobell v. Fuller (a), Waithman v. Weaver (b), Delany v. Jones (c), Hawkes v. Hawkey (d), Lewis v. Walter (e). Denman, C. S. and R. V. Richards (with whom was F. Pollock), contrà. The jury having found by their verdict that the matters stated in the libel were untrue in point of fact, the question is, whether the defendants are privileged in making those facts public, merely on the ground that they have accurately and fairly related what others have said. Now, upon no principle of law or of common sense can the affirmative of that position be maintained. It cannot be pretended that this is the report of what had taken place in a court of justice, or in the course of a judicial inquiry; and even assuming that it is lawful to make public what takes place before a magistrate in his magisterial capacity, still it does not appear that the Lord Mayor elect, before whom this matter took place, had any jurisdiction to inquire into the subject of complaint. On the contrary, the whole case shews that it was not within his jurisdiction as a magistrate. But independently of this objection, it was merely an ex parte proceeding, and according to the case of Rex v. Fisher (f) it would have been an unlawful publication, although the matter took place before a magistrate. This, however, must be treated simply as the repetition in print of matter of imputation upon an individual, passing (a) Peake, N. P. C. 92. (c) 4 Esp. N. P. C. 191. (b) 1 Dowl. & Ryl. N. P. C. 10. (d) 8 East, 427. (e) 4 B. & A. 605. (f) 2 Camp. 513. between private persons. Therefore whether the statement be true or false, as far as the accuracy of the detail is concerned, it affords no defence, even though the defendants, at the time of publication, gave the names of the persons by whom the facts were related. Maitland v. Goldney is an authority to this point. It is clear that the defendants have not brought themselves within the principle of Lord Northampton's case, assuming that there is no distinction between oral and written slander. In the first place, they do not shew where the authors of the slander are to be found, so as to give the plaintiff a remedy against them, admitting that they would be liable to an action; but in the second, it does not appear that any action would lie against the authors at all for the matter which the defendants have repeated. Before the defendants can bring themselves within Lord Northampton's case, it must be shewn that what Mr. Prince and Captain Antrim had said would have rendered them liable to an action. But it is perfectly clear, that no action would lie against them for any statement which they had made to the Lord Mayor elect. As far as they are concerned, their representation might be perfectly innocent, and only become culpable when reduced into writing and published in a newspaper. The defendants, therefore, by their act alone have done that which gives the plaintiff a right of action. They have put into a criminal shape, by the act of printing, that which would have been venial in the original authors of the statement. It is perfectly clear, therefore, that Lord Northampton's case does not apply; because, independently of the objection, that that case applies to oral slander only, there is here no sufficient description of the authors of the slander, nor any ground of action against them. ABBOTT, C. J.-I am of opinion, that the rule must be made absolute for entering a judgment for the plaintiff, notwithstanding the finding of the jury for the defendants upon the third plea. Our judgment in this case is founded upon 1824. M'GREGOR v. THWAITES. M'GREGOR v. 1824. the matter which appears upon the record, and upon that only. On looking at the record, it certainly does not appear that the libel which has been made the subject of THWAITES. this action, gives an account of any thing taking place before a magistrate in his character of magistrate. We have, therefore, no occasion in this instance to give any opinion as to what may be the right of any person to print and publish that which occurs before a magistrate, acting officially as such. All that appears on this record as the subject of allegation on the part of the plaintiff is, that an application was made to the Lord Mayor elect of the city of London, by certain persons, relative to the disposal of some orphan children; but the matter of the libel which is afterwards set forth, goes very far beyond that which could be properly consistent with an application made to the Lord Mayor in his character of a Magistrate. We are then to consider whether the other ground on which this case has been put for the defendants can be supported; and that other ground must now be taken to be this, that they have given a true, fair, and correct report of matter which occurred before a person, not sitting for the purpose of discharging the func tions of a magistrate, but as if it was related to him in conversation, or at a dinner, or on any other occasion of public or private festivity. It has been said on behalf of the defendants, that inasmuch as the editor of a newspaper does not himself profess to vouch for the facts which he states, but merely relates what he has heard others say, and at the same time communicates the names of the authors of the matter which is charged to be libellous, he is protected, according to the rule laid down in Lord Northampton's case. It is, however, to be observed, that that was the case of slanderous words, and slanderous words only. We are not called upon to give our opinion upon the distinction between oral and written slander; but there certainly may be a difference between putting into writing, and printing, that which is asserted by another person, and re |