the further publication of matter which the jury had found libellous (Saxby v. Easterbrook). Within the last few years, however, the Chancery Courts have taken upon themselves to restrain by an interim injunction the publication of matter on which a jury has never had an opportunity of pronouncing an opinion.

Such injunctions are now not infrequently granted in the Chancery Division on the interlocutory application of one of the parties to an action. Before granting an injunction, however, the Court must be satisfied that the matter is such as a jury would or should find libellous, that it is in substance false, and that it is not privileged, or if privileged, that it is published maliciously.

3 C. P. D.

339.

(1878.)

In the Quartz Hill Consolidated Gold Mining Co. v. Beall, 20 Ch. D. Jessel, M.R., said: "There is jurisdiction in a proper case 507. upon interlocutory application to restrain the further publication of a libel. But the question as to whether the jurisdiction, though existing, has been properly exercised is quite different. It is a jurisdiction which must be very carefully exercised. No doubt there are cases in which it would be quite proper to exercise it, as, for instance, the case of an atrocious libel wholly unjustified and inflicting the most serious injury on the plaintiff. But, on the other hand, where there is a case to try, and no immediate injury to be expected from the further publication of the libel, it would be very dangerous to restrain it by interlocutory injunction."

The question of interim injunctions in the case of alleged libels was considered at some length in the Liverpool Household Stores Association v. Smith. The plaintiffs were a limited joint-stock company, with a nominal capital of £100,000, of which about a third was actually subscribed. Owing to a dispute as to the premises which should be bought to carry on the proposed business of the company, two of the directors resigned. In consequence, various meetings of shareholders were held, at which considerable heat prevailed. Shortly after these meetings the Liverpool Mercury, which had pub

37 Ch. D.

170.

(1887.)

3 T. L. R.

846.

(1887.)

lished accurate reports of them, inserted several letters from shareholders, in which the affairs of the company and the conduct of the directors were somewhat severely canvassed. It was admitted by the defendants that these letters were not accurate in all details. The plaintiffs brought an action for libel, and applied for an interim injuction to restrain the defendants from publishing any articles, letters from correspondents, or other matter containing imputations on the solvency of the company, or on its ability to carry on business with success, &c., &c. The defendants resisted this motion on the ground that the letters complained of were inserted, without negligence or malice, upon matters of interest affecting a public company which had invited the public to take its shares, and which was of considerable interest to the Liverpool public. Kekewich, J., while refusing the injunction asked for, on the ground of the difficulty of framing an injunction which would not include matters which might turn out not to be libellous, at the same time said that there could be no doubt that the Court was entitled to grant an interim injunction in libel cases where irreparable injury might be done by the publication of the libel before the trial came on. The plaintiffs appealed, but the Court of Appeal affirmed the decision, without calling on defendant's counsel. Cotton, L.J., in the course of his judgment, pointed out that the injunction asked for was not for restraining the republication of the reports of the meetings of shareholders and the letters of shareholders which had already appeared, but to restrain the publication of any future reports or matter-a very different thing. Coulson v. Coulson the Master of the Rolls said that to justify the Court in granting an injunction, it must come to a decision on the question of libel or no libel before the jury decided whether it was a libel or not; that the jurisdiction, therefore, was of a delicate nature, and ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable. That is what the Master of the Rolls said with reference to an existing document brought before the Court, and Lord Justices Lindley and Lopes concurred in

"In

that ruling.

Now in the case of an existing document brought before the Court, the Court can judge of its character; but how can the Court judge whether documents which are not yet in existence will be libellous? In my opinion it would be very dangerous to grant an interlocutory injunction with reference to future publication, unless we could lay down definitely some line which would include only the publication of what would necessarily be libellous. In my opinion it would be very unadvisable to grant any injunction which would restrain fair discussion in the newspapers of matters of importance, like that of the probable success or failure of a public company. . . I think that a newspaper occupies a peculiar position, especially with regard to matters concerning the interest of those amongst whom the newspaper circulates, such as the discussion of the condition of a company like this. I do not say that any statements or letters printed in the defendant's newspaper, making reflections of the character indicated in the notice of motion, will not be libellous; but I cannot say that the jury would necessarily find them to be libellous."

1891.

In the recent case of Bonnard v. Perryman, the plaintiffs Times, applied for an injunction, first to restrain the defendants Mar. 4, from continuing to publish an alleged libel which had appeared in the defendant Perryman's newspaper; and, secondly, to restrain the defendants from publishing further libels of a similar kind until the action then pending between the parties had been disposed of. The plaintiffs in their affidavits denied the truth of the libel, and the defendants who had pleaded justification in the action filed affidavits averring that at trial they would produce evidence to prove their plea. North, J., however, taking all the circumstances of the case into consideration, declared himself satisfied that no jury would find a verdict for the defendants, and accordingly granted an injunction restraining the further circulation of the libel already published, but refused it as to future libels.

CHAPTER IV.

LIBEL AS A CRIMINAL OFFENCE.

IN the preceding chapters libel has been discussed from the point of view of the civil courts, as a matter of wrong or injury between individual and individual. There is, however, an older, and in a sense a more important, side to the question; that of libel as it affects the public peace, coming, as it then does, within the scope and cognizance of the criminal courts. At one time criminal libels, or public libels as they may be called, especially in the shape of government prosecutions for blasphemy, sedition, and so forth, were the class of libels that came most frequently before the courts, and this is still the case in most foreign countries. Nowadays, however, the criminal law is very rarely put in motion by the State, and in the case of newspaper libels, private persons can only invoke it, as we shall see presently, with the consent of a judge in chambers.

The criminal law regards libel from a standpoint essentially different from that of the civil law. The latter considers it simply as an injury to the individual, the former as an injury to the State. It follows that each system has its own tests, by which it defines the scope and limits of its cognizance. The test of the civil law is has the defendant injured the plaintiff's legitimate reputation? The test of the criminal law is, has the defendant in publishing the libel done an act

likely to lead to a breach of the peace, or to outrage the public conscience, or good morals, or to endanger the safety of the State?

Of these two tests, that of the criminal law is evidently the wider it includes all publications which satisfy the civil law tests and many others which do not, so that while every publication which is libellous at civil law is also libellous at criminal law, the reverse does not hold.

CLASSES OF CRIMINAL LIBELS.-Criminal libels may best be divided into two classes, defamatory libels, and disorderly libels. The first class consists of those which are primarily attacks upon private character. These are, generally speaking, at the same time actionable wrongs, and are only indictable because they are calculated to provoke the person whose character is assailed to a breach of the peace. Libels of the second class are primarily outrages on the public conscience, or good morals, or on the safety of the State. No individual being specially injured by them, they are never actionable. They are purely criminal libels.

Before discussing these classes separately, two points may be mentioned which affect them both.

RESPONSIBILITY IN CRIMINAL LIBEL.-The most important of these is with regard to the liability for publication. Who may be held liable, criminally, for the publication of a libel?

In civil law, as we have seen, in the case of a libel appearing in a newspaper, the registered proprietor, the printer, the publisher, the author, the editor, the vendor, and every other person consciously concerned in preparing or circulating it, are each and all regarded as