1

2

tion of a jail with misconduct in the performance of their contract; or an advertisement in a newspaper, addressed to the creditors of B. & Co., who had been declared bankrupts, and containing imputations on B. of fraudulent conduct, published by the solicitor who had acted under the commission of bankruptcy; or the publication in a newspaper, by a voter at an election, of statements reflecting on the character of one of the candidates: will not be considered as privileged. "However large the privilege of electors may be," said Lord Denman, Ch. J., in that case,3 "it is extravagant to suppose that it can justify the publication, to all the world, of facts injurious to a person who happens to stand in the situation of a candidate."

4

A pamphlet which has bona fide for its object the vindication of the character of the writer against charges made by others, is undoubtedly privileged. Thus, where the plaintiff, a policy-holder in an insurance company, published a pamphlet accusing the directors of fraud, the court held privileged, if the jury should be of opinion that it was published without malice, a pamphlet published in reply by the directors, declaring the charges contained in the plaintiff's pamphlet to be false and calumnious, and also asserting that in a suit he had instituted he had sworn, in support of those charges, in opposition to his own handwriting, was held of privilege, his Lordship thus directed the jury: "The law is that a publication is privileged either by the duty or the fair and honest interest of the party who has made it. And I am of opinion that the answer here was privileged,

1

Simpson v. Downs, 16 L. T. N. S. 391. But vid. Harle v. Catherall, 14 L. T. N. S. 801.

and that the publication was privileged. If vou are of opinion that it was bona fide for the purpose of the defense of the company, and in order to prevent these charges from operating to their prejudice, and with a view to vindicate the character of the directors, and not with a view to injure or lower the character of the plaintiff—if you are of that opinion, and think that the publication did not go beyond the occasion, then you ought to find for the defendants on the general issue."1

Where an action of libel was brought for an advertisement, published in a newspaper, offering a reward to any person who could give notice to the defendant of the marriage of James Delany previous to a certain date, there being an innuendo that the defendant meant thereby to insinuate that J. D., the plaintiff, had been and was married before the time mentioned in the advertisement, and had another wife then living; and the defense relied upon was that the advertisement had been inserted by the authority of the plaintiff's wife, for the purpose of making a discovery which it was important for her to know, namely, whether the plaintiff had another wife then living, Lord Ellenborough, Ch. J., told the jury that, though that which is spoken or written may be injurious to the character of the party; yet, if done bona fide, with a view of investigating a fact in which the party making it was interested, it was not libelous, and, therefore, if the investigation had been set on foot and the advertisement published by the plaintiff's wife, either from anxiety to know whether she was legally the wife of the plaintiff or whether he had another wife living when he married her, it was justifiable, though done through the medium of imputing 1 Ib. Vid. also Rex v. Veley, 4 F. & F. 1117.

1

bigamy to the plaintiff. The soundness of this law however, was doubted by Lord Denman, Ch. J., in a subsequent case. "I have great doubt," said that. learned judge," whether the interest which the wife had in the inquiry could justify the offering a reward in a newspaper."

Another class of publications which would appear to be privileged from considerations of public interest, if not of public policy, are newspaper comments on matters of daily occurrence the news of the day, proceedings of legislative or other deliberative bodies, judicial proceedings in the courts, etc.) These will be considered further on in the chapter on newspapers.

The law of libel, it should be remarked, is in no sense in conflict with a liberty which, with us, is especially dear to the citizen, and especially guarded and secured by our constitution-the liberty of the press "The law of libel is no more unfavorable to the press than the statute against larceny is unfriendly to the people. One perplexes thieves, the other liars, but neither is a terror to honest men, and nothing therein can militate against the principle laid down in what Judge Kent calls the 'comprehensive and accurate definition' of Alexander Hamilton: 'the liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.'"

The question as to how far a newspaper may comment upon matters of public interest, which involve more or less the reputation and the rights of individuals, will be examined in the chapter on news

Delaney v. Jones, 4 Esp. 191. And see Fendin v. lake, 1 Mo. & Malk. 461.

'Lay v. Lawson, 4 A. & E. 795.

West

papers, except as to the question of comments upon judicial proceedings, which will be found treated of in the chapter upon contempts of court.

A defendant will not be allowed, for purposes of mitigating damages, or of justifying a libel, to inquire into a plaintiff's religious opinions, even where the libel concerns his religious creed. Nor will he be allowed to read, in his address to the jury, specific books and documents, as proofs of what the doctrines of the plaintiff's co-religionists are. These are matters of fact and must be proved by witnesses.?

The conduct of the plaintiff in provoking the libel, is a fit subject for the jury to take into account, in estimating the amount of compensation for his injured feelings.

And evidence may be given of libels on the defendant, published by the plaintiff, respecting the same subject-matter. Said Mansfield, Ch. J., "If a man is in the habit of libeling others, he complains with a very bad grace of being libeled himself; and he cannot be supposed to suffer much injury from this But before such publications are read, it must be shown that they are connected with the libels proceeding from the defendant: for it is not a proper ground for mitigating damages that, on other occasions, the plaintiff has written libels on the defendant, on some other matter unconnected with that which is the subject of the action; and it must be proved that

source." 4

1

5

Darbey v. Ouseley, 1 H. & N. 1. But see Turnbull v. Bird, 2 F. & F. 508.

2 Id.

I

Kelly v. Sherlock, 2 R. 1 Q. B. 686; 35 L. J. 209, Q. B. And see note 1, p. 222.

5

Finnerty v. Tipper, 2 Camp. 72.

May v. Brown, 3 B. & C. 113; Tarpley v. Blabey, 2 Bing. N. C. 437; Wakeley v. Johnson, 1 Ry. & Moo. 422.

they came to the defendant's knowledge before he libelled the plaintiff.1

Watts v. Frazer, 7 Ad. & E. 223. So, too, the provocation for the libel will be considered at the trial. Thus, where the action was for imputing unchastity to the plaintiff's wife, the defendant was allowed to prove that the wife had lived alone with an unmarried man in the same house. Reynolds v. Tucker, 6 Ohio, N. S. 516; and see Bradley v. Heath, 6 Pick. 163; Shoulty v. Miller, 1 Carter (Ind.) 544; Knight v. Foster, 39 N. H. 876; Regnier v. Cobot, 2 Gilman 34; Henson v. Veatch, 1 Blackf. 369. It was remarked on page 201, that undoubtedly a libel could be published by telegraph. While these pages are going through the press, such a case (Jaffras v. McKellop. &c. Co., 4 T. & C. (N. Y.) 578) has been reported, though it does not appear that the telegraph company was pursued as a publisher.

In England, 1 of 6 and 7 Vict., c. 96, enacts that "it shall be lawful for the defendant (after notice in writing of his intention so to do, duly given to the plaintiff at the time of filing or delivering the plea in such action) to give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there was an opportunity of making or offering such apology" (Shortt L. L. 568). Upon the action, by virtue of "Fox's Libel Act” (32 Geo. 3, c. 60), the judge before whom a case of libel is tried, may give his opinion as to whether the publication is libelous (Id. 595).