L. R. 4 C. P. 288. (1869.) defamatory meaning must be set out in what is called an innuendo. The plaintiff at trial is bound by the meaning set out in his innuendo, and if he fail to prove that the statement really bears that meaning his action will be dismissed, unless the original words themselves independent of the innuendo, were defamatory, in which case he may at trial abandon the innuendo-which was from the first unnecessary-and rely on the words themselves. FUNCTION OF JUDGE AND JURY.-In considering whether matter is libellous, the functions of the judge and jury may be thus stated; it is the duty of the judge to say if, reasonably considered, it can be libellous; of the jury, if it is libellous. If the judge considers that the words complained of are capable only of one meaning, and that not defamatory, or are capable of a defamatory meaning, but no reason is given for attaching that meaning to them, or that there is no ground for holding that they apply to the plaintiff, it is his duty to withdraw the case from the jury and nonsuit the plaintiff. If, however, he considers that the words are primâ facie defamatory, or are ambiguous, and evidence that a defamatory meaning was intended has been produced, it is then for the jury to say whether they are libellous or not. In Cox v. Lee, Kelly, C.B., thus lays down the law: "It is only where the judge is satisfied that the publication cannot be a libel, and that, if it is found by the jury to be such, their verdict will be set aside, that he is justified in withdrawing the question from their cognizance.' In connection with this see Lord Selborne's remarks in 7 App. Cas. Capital and Counties Bank v. Henty :—"I do not understand any of the learned judges in the Courts below to have been of opinion (nor do I think it is the opinion of any of your 744. Lordships) that the question of libel or no libel must alway and necessarily be left to a jury as to words not in themselves (ie. in their proper and natural meaning, according to the ordinary rules for the interpretation of written instruments) libellous, without some evidence either of a libellous purpose on the part of the writer, or of some other extrinsic facts calculated to lead reasonable men to understand them in a libellous sense. In deciding on the question whether the words are capable of that meaning, he (the judge) ought not, in my opinion, to take into account any mere conjectures which a person reading the document might possibly form, as to some out of various motives or reasons which might have actuated the writer, unless there is something in the document itself or in other facts properly in evidence, which to a reasonable mind would suggest, as implied in the publication, those particular motives or reasons." LAWFUL EXCUSE OR JUSTIFICATION. The fourth condition is, that the defamatory matter must be without lawful excuse or justification. Lawful excuse or justification is matter of defence. The defendant in an action for libel may, after the matter complained of has been shewn to fulfil the three necessary conditions already discussed, plead either that it is (1.) PRIVILEGED; that is to say, that, whether true or untrue, the circumstances of its publication render it non-actionable; or, that it is (2.) JUSTIFIED; that is to say, that the libellous statement is true in substance and in fact. Privilege and Justification are of sufficient importance to require a chapter to themselves. CHAPTER II. PRIVILEGE AND JUSTIFICATION. MALICE as it is said is the gist of every action for libel. In general, the law presumes the existence of at least enough malice to give ground for an action, and no evidence of absence of actual malice will be sufficient to affect this presumption though such evidence will be admitted with a view to mitigating damages. There are certain exceptional cases, however, in which the presumption of law is precisely the opposite of that just stated; in these the law presumes, from the circumtances of the publication, that there is no malice; and no evidence of the existence of actual malice will be admitted. Such cases are called cases of absolute privilege. Midway between these two are cases where the law, from the circumstances of the publication, presumes that no malice sufficient to afford ground for an action exists, but at the same time will admit evidence of actual malice to rebut this presumption: these may be called cases of partial privilege. This may at first sight be regarded as a somewhat novel and arbitrary classification, and it is not put forward as supplying any theory as to the principle upon which the law on the subject is based. But it will, we think, be found to express clearly the practical result of the decisions. Any justification necessary for the language used may be found in the judgment of Cockburn, C.J., L. R. 4 255. (1825.) in Wason v. Walter. "In the English law of libel, malice is said to be the gist of an action for defamation. And though it is true that by malice, as necessary to give a cause of action in respect of a defamatory statement, legal and not actual malice is meant, while by legal malice, as explained by Bayley, J., in Bromage v. Prosser, 4 B. & C. is meant no more than the wrongful intention which the law always presumes as accompanying a wrongful act without proof of malice in fact, yet the presumption of law may be rebutted by circumstances under which the defamatory matter has been uttered or published, and if this should be the case, though the character of the party concerned may have suffered, no right of action will arise." "The rule," says Lord Campbell, C.J., in the case of Taylor v. Hawkins, "is that, if the occasion be such as repels the presumption of malice, the communication is privileged, and the plaintiff must then, if he can, give evidence of malice." ABSOLUTE PRIVILEGE. Absolute privilege exists only in certain cases where the law considers it for the public benefit that the greatest liberty of expression should be permitted. These occasions may be ranked generally under three heads. (1.) Statements made in, and Reports and Proceedings published by order or under the authority of, either House of Parliament. (2.) Statements made and documents used in judicial proceedings. (3.) Reports of State Officials to their superior officers and all publications made as acts of State. In all these cases, no matter how defamatory and un 20 L. J. Q. B. 314; 16 Q. B. 321. (1851.) founded the statement may be, no action either for libel 20 Ir. L. R. or slander will lie. See Dillon v. Balfour. 600. 51 & 52 It must not be assumed, however, that because the original statements and reports in these three classes of cases are the subjects of absolute privilege, their reproduction in a newspaper will in all cases be afforded similar protection. This point will be dealt with later. It is only necessary here to notice that Reports, Papers, Votes, or Proceedings of either House of Parliament, which have been published by the order or under the authority of either House, are entitled to absolute privilege by 3 & 4 Vict. c. 9, s. 2. This applies only to the reproduction of the full Report or Paper. Sect. 3 of the same Act provides that partial privilege only is given to extracts from or abstracts of them. [For text of statute, see Appendix.] Sect. 2 runs as follows : And be it enacted, that in case of any civil or criminal proceeding hereafter to be commenced or prosecuted, for or on account or in respect of the publication of any copy of such Report, Paper, Votes, or Proceedings, it shall be lawful for the defendant or defendants at any stage of the proceedings to lay before the Court or judge such Report, Paper, Votes, or Proceedings, and such copy, with an affidavit verifying such Report, Paper, Votes, or Proceedings, and the correctness of such copy, and the Court or judge shall immediately stay such civil or criminal proceeding; and the same, and every writ or process issued therein, shall be, and shall be deemed and taken to be, finally put an end to, determined, and superseded by virtue of this Act. By sect. 3 of the Law of Libel Amendment Act, 1888, Vict. c. 64. it would appear that, subject to certain limitations, absolute privilege is now extended to fair and accurate reports of judicial proceedings. As, however, other |