rily or not, is a circumstance which the jury are to consider in forming an opinion on the bona fides. "I do not mean to intimate," says Lord Alvanley, Rogers v. Clifton, 3 B. and P. 592,"that if a servant were strongly suspected of having committed a felony while in his master's service, that master is not at liberty to warn others from taking him into their service; for it is the duty of every person to guard the public against admitting such servants into their houses." "A master may," says Mr. Justice Bayley, Patteson v. Jones, 8 B. and C. 578, "when he thinks that another is about to take into his service one whom he knows ought not to be taken, set himself in motion, and do some act to induce that other to seek information from, and put questions to him. The answers to such questions, given bona fide, with the intention of communicating such facts as the other party ought to know, will, although they contain slanderous matter, come within the scope of a privileged communication. But in such a case it will be a question for the jury whether the defendant has acted bond fide, intending honestly to discharge a duty, or whether he has acted maliciously, intending to do an injury to the servant." See Child v. Affleck, 9 B. and C. 403. So defamatory words spoken by way of confidential advice to persons who ask it, or have a right to expect it, are privileged. Thus, in an action for saying of a tradesman, "He cannot stand it long,-he will be a bankrupt soon," it appearing that the words were not spoken maliciously, but in confidence and friendship, and by way of warning, Pratt, C.J., directed the jury that though the words were otherwise actionable, yet, if they should be of opinion that they were not spoken out of malice, but in the manner before mentioned, they ought to find the defendant not guilty. Herver v. Dawson, B. N. P. 8. M'Dougal v. Claridge, 1 Campb. 267. Dunmore v. Bigg, Id. 269 (n). Upon the same principle, where the plaintiff brought an action against the defendant for saying he had heard the plaintiff was hanged for stealing a horse, but it appeared upon the evidence that the words were spoken in grief and sorrow for the news, the plaintiff was nonsuited, there being no proof of malice. Anon., coram Hobart, J., cited 1 Lev. 82. But it seems to be no defence to show that the words were spoken carelessly, wantonly, or in jest. Hawk. P. C. b. 1, c. 28, s. 14, 8th ed. So words spoken bona fide, by way of moral advice, are privileged; as if a man write to a father, advising him to have better regard to his children, and using scandalous words, it is only reformatory, and shall not be intended to be a libel. 2 Brownl. 150. But if in such case the publication should be in a newspaper, though the pretence should be reformation, it would be libellous. R. v. Knight, Bac. Ab. Libel, A. 2. In these cases, if the circumstances attending the writing or speaking of the words be such as prima facie to render

them privileged, it is incumbent on the plaintiff, in order to entitle himself to a verdict, to prove malice in fact. See Bromage v. Prosser, 4 B. and C. 247.

4. Where defamatory words are spoken or written bonú fide with the view of investigating a fact in which the party is interested, they are privileged. Thus, where the defendant inserted an advertisement in a newspaper to ascertain whether, previously to a certain time, the plaintiff had been married, intending, as the inuendo stated, to insinuate that the plaintiff had been guilty of bigamy, but it appeared that the advertisement was inserted by the authority of the plaintiff's wife, Lord Ellenborough held, that if the investigation was set on foot, and the advertisement published by the plaintiff's wife, from anxiety to know whether she was legally the wife of the plaintiff, though that is done through the medium of imputing bigamy to the plaintiff, it is justifiable. Delany v. Jones, 4 Esp. 191. Finden v. Westlake, 1 M. and M. 461. But if the publication of the libel be more extensive than is necessary for the purpose of obtaining the desired information, it will be actionable. Brown v. Croome, 2 Stark. 297.

5. Whether the publication of the proceedings of a court of justice, where those proceedings contain defamatory matter, is privileged, has never been solemnly decided; but the inclination of the courts appears to be against the exist ence of such a privilege. See Lewis v. Clement, 3 B. and A. 702, Lewis v. Walter, 4 B. and A. 613. Flint v. Pike, 4 B. and C. 476, 481; but see Curry v. Walter, 1 Esp. 456, 1 B. and P. 525, S. C. R. v. Wright, 8 T. R. 298. Stiles v. Nokes, 7 East, 504. R. v. Fisher, 2 Campb. 270. Duncan v. Thwaites, 3 B. and C. 583. The publication of preliminary or ex parte proceedings containing defamatory matter is clearly actionable; as the publication of depositions before a justice of the peace on a charge of murder; R. v. Lee, 5 Esp. 123, R. v. Fisher, 2 Campb. 563, Duncan v. Thwaites, 3 B. and C. 583; or proceedings on a coroner's inquisition. R. v. Flint, 1 B. and A. 379. Where the defence has been, that the libel is a correct account of what passed in a court of justice, it has been usual to plead that defence specially; but it seems that, if available at all, it may be taken advantage of under the general issue, like other privileged communications. Though the defendant cannot plead in justification that the libel is a correct report of a preliminary or ex parte proceeding, as a coroner's inquest, yet he may, under the general issue, give in evidence the correctness of the report in mitigation of damages; but no evidence of the truth or falsehood of the facts stated at the inquest is in such case admissible on either side. East v. Chupman, 1 M. and M. 46. Vide post.

6. So the defendant may show under the general issue that the libel is a fair criticism on the plaintiff's work; but if it

contain observations unconnected with the work, and personally slanderous, it is actionable. Carr v. Hood, 1 Campb. 355 (n). Macleod v. Wakley, 3 C. and P. 311, Soane v. Knight, 1 M. and M. 74, Thompson v. Shackle, 1 M. and M. 187. That publication is not a libel which has for its object not to injure the reputation of any individual, but to correct misrepresen tations of fact, to refute sophistical reasoning, to expose a vicious taste in literature, or to censure what is hostile to morality. Per Lord Ellenborough, Tabart v. Tipper, 1 Campb. 352. So the editor of a newspaper may fairly and candidly comment on any place 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. Per Lord Kenyon, Dibdin v. Swan, 1 Esp. 23. And it is not libellous fairly to comment upon a petition relating to matters of general interest, which has been presented to parliament and published. Dunne v. Anderson, R. and M. 287, 3 Bingh. 88.

Evidence of the truth of the libel or words.] Where the defendant admits the publishing or speaking of the libel or words as stated, but justifies so doing because they are true, he must plead this matter specially, and he will not be permitted to give it in evidence under the general issue. Smith v. Richardson, Willes, 20, 1 Saund. 130 (n). And such evidence is inadmissible under the general issue, either in bar of the action or in mitigation of damages. Ibid. Underwood v. Parks, 2 Str. 1200.

Evidence that the words were first spoken by another.] It is a good defence that the defendant was only the repeater of the slanderous words, and that he named the author of them at the time, and stated that he had heard them uttered, but such defence must be specially pleaded. Mills v. Spencer, Holt, 533. The words actually uttered by the third person, and not merely the substance of them, must be proved, so as to furnish the plaintiff with a cause of action against such third person. Maitland v. Gouldney, 2 East, 426. See also McGregor v. Thwaites, 3 B. and C. 24. Lewis v. Walter, 4 B. and A. 605. It must also be shown that the defendant believed the words to be true, and that he spoke them on a justifiable occasion. McPherson v. Daniels, 10 B. and C. 263.

Evidence in mitigation of damages.] It was formerly held that where the defendant pleaded the general issue without a justification, he might prove that the plaintiff had been generally suspected of the offence imputed to him by the defendant. Earl of Leicester v. Walter, 2 Campb. 251. V. Moor, 1 M. and S. 284. But it was held that evidence of facts, not amounting to complete justification, could not be received. Waithman v.

Weaver, D. and R. N. P. C. 10. And it is now decided that general evidence of the plaintiff's bad character is not admissible in an action for a libel. Thus in an action for a libel on the plaintiff, tending to injure his credit and reputation, in his profession and business of an attorney, it was held that general evidence of his bad character and ill repute in his business could not be admitted either to contradict the allegation in the declaration that the plaintiff exercised and carried on the business of an attorney with great credit and reputation, in order to mitigate the damages on the general issue, or in support of the averments in the defendant's jus tification, that the plaintiff was a disreputable professor and practitioner in the law. Jones v. Stevens, 11 Price, 235. The defendant cannot, in mitigation of damages, give in evidence other libels published of him by the plaintiff, not distinctly relating to the same subject. May v. Brown, 3 B. and C. 113, See Finnerty v. Tipper, 2 Campb. 77. Nor is general evidence that the plaintiff has been in the habit of libelling the defendant admissible. Wakley v. Johnson, R. and M. 422. But matter

which cannot be pleaded in justification, as for instance, that certain proceedings took place at a coroner's inquest, may be given in evidence in mitigation of damages. East v. Chapman, 1 M. and M. 46, 2 C. and P. 571, S. C. Ante, p. 297. And in actions for words not actionable in themselves, evidence of their truth may be given under the general issue to disprove malice. Watson v. Reynolds, 1 M. and M. 1. So also, as before stated, ante, p. 295, in cases of privileged communications, evidence of the circumstances which render the communications privileged, is admissible under the general issue. And where the defendant published an imperfect account of a trial, which was libellous, he was allowed, in mitigation under the general issue, to show that he had copied the state. ment from another newspaper, but not that it had appeared concurrently in several newspapers. Saunders v. Mills, 6 Bingh

213.

Accord and satisfaction.] Accord and satisfaction is a good defence under the general issue; and where the plaintiff had agreed not to bring the action in consideration of the defendant destroying certain documents relating to the charge im puted to the plaintiff, which the defendant accordingly destroyed, Lord Ellenborough admitted this in evidence as accord and satisfaction. Lane v. Applegate, 1 Stark. 97.

In an action for a libel, the defendant has a right to have the whole of the publication read from which the passages charged are extracts. Cooke v. Hughes, R. and M. 112. See Mullett v. Hulton, 4 Esp. 249.

CASE FOR MALICIOUS PROSECUTION.

In an action on the case for a malicious prosecution the plaintiff must prove: 1. The prosecution; 2. Its determination; 3. That the defendant was the prosecutor; 4. His malice and want of probable cause; and, 5. The damages sustained.

Evidence of prosecution.] The fact of the prosecution is usually proved by the production of the record, or of an examined copy. See ante, p. 53. B. N. P. 13. And the record or copy is admissible without proof of an order of the court or fiut of the attorney-general allowing the plaintiff a copy of such record. Legatt v. Tollervey, 14 East, 302. Caddy v. Barlow, 1 M. and R. 275. In an action for a malicious prosecution by indicting the plaintiff at the quarter-sessions, it was held by Wilmot, J., that it was not sufficient to produce the original indictment, for that it was no evidence of the caption, which was a material averment in the declaration, viz. that the quarter-sessions were held at such a time and place, and before such parties, and he was of opinion that this could not be supported by parol evidence of the minutes of the sessions, but that for this purpose a record should have been made up, and the original or a copy produced, and the plaintiff was nonsuited. Edwards v. Williams, 2 Esp. Dig. N. P. 37. Some proof must be given of the identity of the plaintiff and the party prosecuted.

A variance between the charge actually made, and that stated in the declaration, will be fatal. Thus where it was stated in the declaration that the defendant imposed upon the plaintiff the crime of felony, and upon the production of the information before the justice, it appeared that the charge amounted only to a civil injury, though the warrant was to arrest the plaintiff on suspicion of felony, the variance was held fatal. Leigh v. Webb, 3 Esp. 165. But where the declaration averred that the defendant charged the plaintiff with assaulting and beating him, and procured a warrant to apprehend him for his said offence, and the charge in fact made was for assaulting and striking, and the warrant produced recited the charge to be for violently assaulting, it was held to be no variance. Byne v. Moore, 5 Taunt. 187, quære the marginal note. And where the plaintiff declared that the defendant maliciously charged the plaintiff with having feloniously stolen cer tain articles his property, and it was proved that the defendant laid an information before a magistrate, in which he deposed that the said articles had been feloniously stolen, and that he suspected and believed, and had good reason to suspect and believe, that they had been stolen by the plaintiff, it was held