Kenyon rejected evidence of words actionable of themselves, and not mentioned in the declaration, but his Lordship afterwards changed his opinion, and admitted such evidence in a subsequent case. The evidence goes to show the state of the mind of the defendant, and is therefore admissible.

Ballantine, Serj., and Honeyman, in support of the rule. First, the words declared upon are not susceptible of the meaning put upon them. Blagg v. Sturt, 10 Q. B. 899, 16 L. J. Q. B. 39, No. 11 p. 117, post.

[Lord CAMPBELL, C. J. Is not that a question for the jury?]

Secondly, the statements of the defendant ought not to have been received. They have no bearing upon the actual state of the defendant's mind at the time he wrote the libel, nor is there anything to show that the feelings which he had at the time of making the statements had any connection with his feelings at the time he published the libel. Finnerty v. Tipper shows that the words to be proved must have some reference to the libel,

*

but here there was none, and Finnerty v. Tipper has not [* 255] been overruled.

[Lord CAMPBELL, C. J. The plaintiffs rely upon the fact that there was there no privileged communication.]

But that case has always been relied on. Pearson v. Lemaitre, Macleod v. Wakley, 3 Car. & P. 311, Camfield v. Bird, 3 Car. & K. 56, and Perkins v. Vaughan, 4 M. & G. 988. If this evidence is received, where is the line to be drawn? are statements made many years afterwards to be admissible?

[Lord CAMPBELL, C. J. The statements are evidence from which the jury may or may not infer malice.]

[CROMPTON, J. referred to Barrett v. Long, 3 H. L. Cas. 395.]

It lies upon the other side to satisfy the Court that the evidence was admissible, and that it related to the subject-matter of the libel, and there is no case in which it has been held that words not so related are admissible. All the cases are collected in 1 Taylor on Evidence, 2nd edit. pp. 303, 304, 305.

Lord CAMPBELL, C. J. Upon the second point the Court will take time to consider, but upon the first point we are all agreed that section 61 of the Common Law Procedure Act, 1852, and the 32nd and 33rd Forms in Schedule B. show that it was intended to do away with all such objections, and to enable the pleader to put any such construction upon the words as he may choose, and to

Nos. 5, 6.

Toogood v. Spyring; Hemmings v. Gasson. -Notes.

leave it to the jury to say whether such a construction was borne out by the evidence.

Rule discharged as to the arrest of judgment.

The judgment of the Court was now delivered by

Cur. adv. vult.

Lord CAMPBELL, C. J. We are of opinion that there must be a new trial; we do not say that the evidence of Burgess was inadmissible, for it was a question of privileged communication, and it was necessary to show that there was express malice, but we think that the Judge ought more fully to have pointed the attention of the jury to the fact of the distance of time between the speaking of the words and the publication of the libel, and to have told them that the words might have applied to something else. The words " Hemmings is a dishonourable man" were spoken a considerable time after the alleged libel was published. If the jury had had their attention more fully called to this, they might have come to this conclusion, that these words referred to something subsequent to the libel, and therefore that they did not amount to any proof of malice at the time of the publication of the libel. We think, therefore, that there ought to be a new trial; costs to abide the event of the new trial.

ENGLISH NOTES.

Venire de novo.

The following are the chief kinds of communications which enjoy a qualified privilege. That is to say, the privilege is destroyed by proof of express (i. e. actual) malice.

1. Publication of extracts from a register kept in compliance with an Act of Parliament. Fleming v. Newton (1848), 1 H. L. Cas. 343, So, per POLLOCK, B., in Williams v. Smith (1888), 22 Q. B. D. 134, at p. 139, 58 L. J. Q. B. 21, 59 L. T. 757, 37 W. R. 93. In Searles v. Scarlett (C. A. 1892), 1892, 2 Q. B. 56, 61 L. J. Q. B. 573, 66 L. T. 837, 40 W. R. 696, Lord ESHER, M. R., said (1892, 2 Q. B. at p. 60), "Where there is a register kept by virtue of an Act of Parliament for the purpose of giving information to the public, then, if a person makes a copy of it and publishes it, though he does so for the purpose of warning the public or tradesmen about to give credit, yet if all that he does is to publish a copy of the register which is intended to be a public document, it is a privileged communication." The case of Williams v. Smith (supra) itself indicates the limitation of this immunity. The defendant published in the Hatters' Gazette the extract of a County

Nos. 5, 6.Toogood v. Spyring; Hemmings v. Gasson. Notes.

Court judgment which had been recovered against the plaintiff. This was contained in a list of "County Court judgments " along with which was published a list of "Bills of Sale," and both placed under the general heading of "The Gazette." The plaintiff had in fact settled the amount of this judgment outside the Court, but no satisfaction was entered on the County Court Register. The jury found that the libel, i. e., the statement published in the paper, meant that there was an unsatisfied judgment against the plaintiff on the day of the publication. The Court held that the words were capable of the innuendo charged, and that the verdict was not against evidence. It was no defence that the record of the Court was correctly transcribed.

Instances of publications of extracts from public registers are publications by trade or mercantile journals of receiving orders under the Bankruptcy Act, of the Registration of Bills of Sale, of County Court judgments, &c., &c.

2. By section 3 of the Libel Law Amendment Act 1888, "a fair and accurate report in any newspaper of proceedings publicly heard before any Court exercising judicial authority, shall, if published contemporaneously with such proceedings, be privileged; provided that nothing in this section shall authorise the publication of any blasphemous or indecent matter."

been in effect Smith v. Scott

The section appears to embody the law which has laid down by the modern authorities at common law. (1847), 2 C. & K. 580; Lewis v. Levy (1858), El. Bl. & El. 557, 27 L. J. Q. B. 282; Ryalls v. Leader (1865), L. R., 1 Ex. 296, 35 L. J. Ex. 185, 14 L. T. 563, 14 W. R. 838. The protection existed although one of the parties to the proceedings honestly and without malice published. the judgment only, and omitted the rest of the proceedings at the trial. Macdougall v. Knight (1889), 14 App. Cas. 194, 58 L. J. Q. B. 537, 60 L. T. 762, 38 W. R. 44. It is suggested by some of the judg ments that no privilege would attach if the judgment itself, though truly reported, did not give a complete and substantially accurate account of the matter adjudicated upon. But this point although pleaded was not put in the questions submitted to the jury, which were all answered in favour of the defendants; and the plaintiff, not having raised the point by motion for judgment notwithstanding the verdict, was held not entitled to raise it in the Court of ultimate appeal. That no privilege attaches if the effect of the judgment was not truly reported was held by NORTH, J., in Hayward v. Hayward (1887), 34 Ch. D. 198, 56 L. J. Ch. 287, 55 L. T. 729, 35 W. R. 392. The Court made no distinction between publication of the report in a newspaper or by a private individual. Milissich v. Lloyds (C. A. 1877), 13 Cox, C. C. 575, 46 L. J. C. P. 404, 36 L. T. 423, 25 W. R. 353. Ex parte pro

ceedings were held to enjoy the same privilege in Usill v. Hales (1878), 3 C. P. D. 319, 47 L. J. C. P. 323, 38 L. T. 65, 26 W. R. 371. This case was followed in Kimber v. Press Association (C. A. 1893), 1893, 1 Q. B. 65, 62 L. J. Q. B. 152, 67 L. T. 515, 41 W. R. 17.

It was decided by the Court of Appeal in Stevens v. Sampson (C. A. 1879), 5 Ex. D. 53, 49 L. J. Ex. 120, 41 L. T. 782, 28 W. R. 87, that the privilege is destroyed by proof of actual malice. It is not clear from the language of the above section whether the privilege is intended to be absolute. The absence of the proviso contained in the 4th section (referred to below) may suggest an argument to the contrary. Yet if the legislature intended to extend to a new class of cases the extraordinary benefit of an absolute privilege, it might have been expected that the flexible word "privilege" should have been expressly defined. 3. Reports of Parliamentary proceedings. Wason v. Walter (1868), L. R., 4 Q. B. 73, 38 L. J. Q. B. 34, 19 L. T. 409, 17 W. R. 169, 8 B. & S. 671.

In Davis v. Shepstone (1886), 11 App. Ca. 187, 55 L. J. P. C. 51, 55 L. T. 1, 34 W. R. 722, it was decided that the privilege attached to reports of parliamentary and judicial proceedings does not extend to reports of the conduct of public persons in the discharge of their public functions obtained by reporters and published in newspapers, however trustworthy such reports may apparently have been.

4. By section 4 of the Libel Law Amendment Act 1888, a fair and accurate report published in any newspaper of the proceedings of a public meeting or of various meetings of a public character there specified, is declared to be privileged, provided the publication is not malicious, and there has been no refusal to insert in the newspaper a reasonable statement by way of contradiction or explanation at the request of the person whose conduct has been impugned at the meeting.

5. By the same section, notices and reports published at the request of any government office or department, officer of state, Commissioner of Police, Chief Constable, are declared to be privileged in absence of malice.

6. A communication affecting a government official, and addressed to a proper person is privileged. For instance a petition addressed to the House of Commons concerning the vicar-general, Lake v. King (1669), 1 Levinz, 240, a letter addressed to the Secretary of War to compel a military officer to pay his debts, Fairman v. Ives (1822), 5 B. & Ald. 642, 24 R. R. 514; a letter addressed to the Postmaster-General complaining of the conduct of a postmaster, Blake v. Pilfold (1832), 1 Moo. & Rob. 198; Woodward v. Lander (1834), 6 C. & P. 548; a letter written to a bishop concerning the conduct of a parson in his diocese, James v. Boston (1845), 2 C. & K. 4; a memorial addressed to the Lord Chancel

-

Nos. 5, 6. — Toogood v. Spyring; Hemmings v. Gasson. — Notes.

lor complaining of the conduct of a magistrate, Harrison v. Bush (1855), 5 El. & Bl. 344, 25 L. J. Q. B. 25; a petition addressed to the Privy Council concerning a sanitary Inspector, Proctor v. Webster (1885), 16 Q. B. D. 112, 55 L. J. Q. B. 150, 53 L. T. 765 (where however the privilege was rebutted by evidence of express malice). In Hart v. Gumpach (1872), L. R., 4 P. C. 439, 42 L. J. P. C. 25, 21 W. R. 365, A., a British subject, acting on behalf of the Chinese government, employed G. as a professor in a Chinese college. A. afterwards made a report to the Chinese government concerning the conduct of G. as such professor, in consequence of which G. was dismissed. It was held, that, there being no proof of malice, A.'s communication. privileged.

was

Communications sent to prevent or punish a crime or an offence are similarly situated. Johnson v. Evans (1800), 3 Esp. 32, 6 R. R. 809. So a statement by a servant to his master that his goods have been stolen by a particular individual; or a letter sent to a schoolmaster or to a father explaining the delinquencies of a youth under his charge. Fowler v. Homer (1812), 3 Camp. 294, 13 R. R. 807; Kine v. Sewell (1838), 3 M. & W. 297.

7. A statement made to protect the interest of the person making it, (Somerville v. Hawkins (1851), 10 C. B. 583, 20 L. J. C. P. 131, 15 Jur. 450; Manby v. Witt (1856), 18 C. B. 544, 25 L. J. C. P. 294, 2 Jur. N. S. 1004; Blackam v. Pugh (1846), 2 C. B. 611, 15 L. J. C P. 290), and reasonably necessary for such object, enjoys a qualified privilege. "If a man bona fide writes a letter in his own defence and for the defence and protection of his rights and interests, and is not actuated by any malice, that letter is privileged, although it may impute dishonesty to another; but in such a case, malice may either be proved by the letter itself or by other evidence." Per LITTLEDALE, J., in Coward v. Wellington (1836), 7 C. & P. at p. 586.

A policy holder charged the directors of an Insurance Company with fraud. The directors published a pamphlet in defence and charged the plaintiff with making false and calumnious accusations, and with contradicting a previous statement made by him on oath. The jury

found that the counter charges were not beyond the occasion. It was held that the pamphlet was privileged. Koenig v. Ritchie (1862), 3 F. & F. 413; Reg v. Veley (1867), 4 F. & F. 1117.

The plaintiff was employed as a master of a ship insured with the defendants, who refused to continue the insurance, if the plaintiff remained captain of the ship. The plaintiff was dismissed from the service. In an action of libel against the defendants, the plea was that the defendants acted bonâ fide and without malice on information received by them from sources worthy of credit. The plea was held