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Original Printed Version (PDF)


[IN THE COURT OF APPEAL.]


MCQUIRE v. WESTERN MORNING NEWS COMPANY, LIMITED.


1903 April 29, 30; May 11.

COLLINS M.R., STIRLING, and MATHEW L.JJ.


Defamation (Libel) - Fair Comment - Literary Work - Honest Criticism - Withdrawal of Case from Jury.


A "fair comment" upon a literary work, or other such production, submitted to the judgment of the public, that is to say, a comment which is the expression of honest opinion, and does not go beyond the limits of what may fairly be called criticism, is no libel, even although the comment be not such as a jury might think to be a just or recognisable appreciation of the work criticized.

If in an action of libel there is no evidence of anything beyond such a comment as above mentioned, there is no case for the jury.


APPLICATION by the defendants for judgment or a new trial in an action for libel tried before Ridley J. and a jury.

The statement of claim stated that the plaintiff was an actor and theatrical manager, and the defendants were the owners of a newspaper called the Western Morning News; that on June 24, 1901, the plaintiff and a travelling company under his management appeared at the Theatre Royal, Plymouth, in a musical play written and composed by the plaintiff, entitled "The Major"; that, in the edition of the defendants' newspaper dated June 25, 1901, the defendants falsely and maliciously caused to be printed and published of and concerning the plaintiff, and of him as such actor and manager, and also as such author and composer as aforesaid, the words following: "A three act musical absurdity entitled 'The Major,' written and composed by Mr. T. C. McQuire, was presented last evening before a full house by the author's company. It cannot be said that many left the building with the satisfaction of having seen anything like the standard of play which is generally to be witnessed at the Theatre Royal. Although it may be described as a play, 'The Major' is composed of nothing but nonsense of a not very humorous character, whilst the music is far from attractive. This comedy would be very much improved had it a substantial




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plot, and were a good deal of the sorry stuff taken out of it which lowers both the players and the play. No doubt the actors and actresses are well suited to the piece, which gives excellent scope for music-hall artistes to display their talent. Among Mr. McQuire's company there is not one good actor or actress, and, with the exception of Mr. Ernest Braime, not one of them can be said to have a voice for singing. The introduction of common, not to say vulgar, songs does not tend to improve the character of the performance, and the dancing, which forms a prominent feature, is carried out with very little gracefulness"; and that by the said words the defendants meant, and were understood to mean, and the meaning of the said words was, that the said play was dull, vulgar, and degrading, that the members of the plaintiff's company were incompetent as actors, singers, and dancers, that they were music-hall artistes, and that the plaintiff was himself incompetent both as an actor and composer as aforesaid.

The defence admitted the publication by the defendants of the matter complained of, but pleaded that it was published by them in the ordinary course of their business as public journalists, and without any malice to the plaintiff, and that it was a fair and bon‰ fide criticism upon the play referred to in the statement of claim and its performance, which were matters of public interest, and was therefore no libel.

Evidence was given at the trial on both sides with regard to the nature of the play in question and its performance. With regard to the effect of this evidence, it appears sufficient for the purposes of this report to refer to the concluding sentence of the judgment of the Master of the Rolls. There was no evidence of any personal malice towards the plaintiff, or of any indirect motive, on the part of the writer of the criticism or of any one responsible for the management of the defendants' newspaper. The learned judge left the question whether the criticism complained of was or was not a libel to the jury, who found a verdict for the plaintiff with 100l. damages.


April 29, 30. Duke, K.C., and J. A. Hawke, for the defendants. The defendants are entitled to judgment, or at




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any rate to a new trial. It has been said in cases of this kind, e.g., Merivale v. Carson (1) and Wason v. Walter (2), that what might otherwise be libellous is not so if it is "fair" comment on a matter of public interest, or "fair" criticism of a literary work or performance submitted to the public judgment. The question is, What is the meaning of the word "fair" in this connection? It is submitted that, on the true view of the authorities, it does not mean criticism which in the eyes of the jury is just or justifiable. If it did, the right of free criticism, which exists in the public interest, would practically be destroyed. The meaning is that what is published must be bon‰ fide "criticism," that which may "fairly" be considered "criticism." The writer must not overstep the limits of criticism, and, under the guise of criticizing the production, make an attack on the personal character of the man whose production is discussed. If the writer does not transcend the limit of bon‰ fide criticism, then, however severe, or even unjust in a sense, the criticism may be, the critic is entitled to express his honest opinion on a work submitted to the judgment of the public, and is not guilty of libel. The true legal doctrine on the subject is that expressed by Lord Ellenborough in the case of Carr v. Hood (3), reported in a note to Tabart v. Tipper. (4) He there said in summing up: "Every man who publishes a book commits himself to the judgment of the public, and any one may comment upon his performance. If the commentator does not step aside from the work, or introduce fiction for the purpose of condemnation, he exercises a fair and legitimate right." In the course of the case he said: "We really must not cramp observations upon authors and their works. They should be liable to criticism, to exposure, and even to ridicule, if their compositions be ridiculous; otherwise the first who writes a book on any subject will maintain a monopoly of sentiment and opinion respecting it. This would tend to the perpetuity of error. Reflection on personal character is another thing. Shew me an attack on the moral character of this plaintiff, or any attack upon his


(1) (1887) 20 Q. B. D. 275.

(2) (1868) L. R. 4 Q. B. 73.

(3) (1808) 1 Camp. 354; 10 R. R. 701.

(4) (1808) 1 Camp. 350; 10 R. R. 698.




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character unconnected with his authorship, and I shall be as ready as any judge who ever sate here to protect him; but I cannot hear of malice on account of turning his works into ridicule." The effect of what Lord Ellenborough said is to lay down the broad and intelligible rule that, so long as the matter published is bon‰ fide comment on the work only, or the author as an author, and there is no attack on the author as a man, nor any untrue statements of fact with regard to him or his work, there is no libel. The subsequent authorities, such as Campbell v. Spottiswoode (1), are, it is submitted, really to the same effect. Though the word "fair" may have been used somewhat ambiguously in relation to this subject in some passages of judgments given in subsequent cases, and might, if these passages are isolated from the context and the facts of the case, be construed as meaning that criticism, if, in the opinion of a jury, excessive or exaggerated beyond a certain degree, may be libellous, those passages must be looked at with reference to the facts of the particular cases in which they were uttered; and it is submitted that the general effect of the authorities is that, if in such a case as this the critic does not exceed the bounds of comment or criticism, if he confines himself to the merits of the work before him and honestly states his opinion of it, there is no libel, however excessive and exaggerated the jury may think the criticism to be. From what Lord Esher M.R. said in Merivale v. Carson (2) at the end of his judgment, it may be inferred that he thought the question in such cases is whether the comment is really criticism of the work. In the same case Bowen L.J. says: "In the case of literary criticism it is not easy to conceive what would be outside that region," i.e., the reasonable limits of fair criticism, "unless the writer went out of his way to make a personal attack on the character of the author of the work which he was criticizing." It is possible that the language of some criticisms may be such, and may be published under such circumstances, as to furnish evidence that the writer was not in truth bon‰ fide criticizing the work discussed, but maliciously attacking the author personally, and then a jury might find


(1) (1863) 3 B. & S. 769.

(2) 20 Q. B. D. 275.




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that the criticism was a libel, but it is submitted that the present is not a case of that kind.

The summing-up of the learned judge amounted to a misdirection, because it contained expressions which might lead the jury to think that, if they disagreed with the criticism published by the defendants, and, if they thought it unjust, they ought to find it to be a libel. Therefore the defendants are entitled at least to a new trial on that ground, and on the ground that the verdict was against evidence. But, further, it is submitted that the Court should enter judgment for the defendants. Some difficulty is, no doubt, created in libel cases by Fox's Act (32 Geo. 3, c. 60); but, nevertheless, in the case of actions for libel as in other actions, there is always the preliminary question whether there is any evidence of a cause of action for the jury. It has always been held, for instance, that, though the question of libel or no libel is for the jury, it is for the judge to say whether the matter complained of is capable of being a libel, and, if he thinks it is not, he may withdraw the case from the jury. The present case is, no doubt, somewhat different from those in which the question arises merely on the construction of the document alleged to be a libel; because, in order to determine whether the document complained of here is capable of being a libel, it is necessary not only to construe it, but also to ascertain the circumstances under which it was published. But it is contended that, when the whole of the evidence has been given in a case of this kind, then, if the judge is of opinion that there is no evidence of anything beyond bon‰ fide criticism of a work submitted to the public judgment, he ought either to withdraw the case from the jury, or to direct them to give a verdict for the defendants. Expressions have sometimes been used importing that the doctrine with regard to fair comment is a branch of the doctrine of privileged communication; in which case it is for the judge to rule whether the occasion is privileged, and, if the judge rules that it is, and thinks there is no evidence of express malice, he may withdraw the case from the jury: Henwood v. Harrison. (1) It has been settled that this


(1) (1872) L. R. 7 C. P. 606.




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mode of looking at such cases is technically erroneous, and that the defence in such cases is that the words are not really defamatory, fair criticism being no libel: see Campbell v. Spottiswoode. (1) But the distinction is really somewhat academic: see per Bowen L.J. in Merivale v. Carson (2); and the defendants cannot stand in a worse position than if the question were one of privileged communication. Assuming that, technically, the facts did raise the question whether the matter complained of was a libel or not for the jury, if the total result of the evidence was such that, however often a jury might find that there was a libel, the Court ought to set aside the verdict as against evidence, then under Order XL., r. 10, the Court ought to give judgment for the defendants.

[They also cited Paris v. Levy (3); Macleod v. Wakley. (4)]

Clavell Salter, for the plaintiff. The question in this case was eminently one for the jury, and they were entitled to decide it as they did. Taking the summing-up of the learned judge as a whole, there was no misdirection; and, even if there was, at the utmost the result can only be that there ought to be a new trial. There is, it is believed, no reported case in which the question whether a comment was fair was withdrawn from the jury. The result of the argument for the defendants is that the right of comment or criticism in such a case as this is practically unlimited, and however violent or immoderate, however unfounded and unjustifiable a comment or criticism may be, it cannot be libellous unless the character of the author, apart from his work, is attacked, or false statements of fact are made concerning him. The argument comes to this, that comment is not libel, whether fair or unfair. According to this view, there is no such thing as unfair criticism for this purpose. If the matter complained of is merely comment, it is fair comment and therefore not libel. It is submitted that the authorities do not bear out this view, which really gives the go-by to the proper meaning of the expression "fair comment," the expression which has been almost universally used in all the modern cases on the


(1) 3 B. & S. 769.

(2) 20 Q. B. D. 275, at p. 283.

(3) (1860) 9 C. B. (N.S.) 342.

(4) (1828) 3 C. & P. 311; 33 R. R. 668.




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subject. In Merivale v. Carson (1) Lord Esher M.R. said: "What is the meaning of a 'fair comment'? I think the meaning is this: is the article in the opinion of the jury beyond that which any fair man, however prejudiced, or however strong his opinion may be, would say of the work in question? Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment on the work. It would be very easy to say what would be clearly beyond that limit: if, for instance, the writer attacked the private character of the author. But it is much more difficult to say what is within the limit. That must depend upon the circumstances of the particular case." It is impossible to treat this language as merely equivalent to saying that the question is whether the article goes beyond what may fairly be considered comment. Bowen L.J. said in Merivale v. Carson (2) that the proper mode of directing the jury in cases of this kind is "to begin by asking them whether they think the limits of fair criticism have been passed." He goes on to say: "That implies that there is no libel, if those limits are not passed. It is only when the writer goes beyond the limits of fair criticism that his criticism passes into the region of libel at all. This leaves unsettled the inquiry, and perhaps it was intended in Campbell v. Spottiswoode (3) (a case which has never been questioned) to leave it unsettled, what is the standard for the jury of 'fair criticism'? The criticism is to be 'fair,' that is the expression of it is to be fair. The only limitation is upon the mode of expression. In this country a man has a right to hold any opinion he pleases, and to express his opinion, provided that he does not go beyond the limits which the law calls 'fair'; and, although we cannot find in any decided case an exact and rigid definition of the word 'fair,' this is because the judges have always preferred to leave the question what is 'fair' to the jury. The nearest approach, I think, to an exact definition of the word 'fair' is contained in the judgment of Lord Tenterden C.J.


(1) 20 Q. B. D. 275, at p. 280.

(2) 20 Q. B. D. 275, at p. 283.

(3) 3 B. & S. 769.




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in Macleod v. Wakley (1), where he said: 'Whatever is fair, and can be reasonably said of the works of authors, or of themselves, as connected with their works, is not actionable, unless it appears that, under the pretext of criticizing the works, the defendant takes an opportunity of attacking the character of the author: then it will be a libel.' It must be assumed that a man is entitled to entertain any opinion he pleases, however wrong, exaggerated, or violent it may be, and it must be left to the jury to say whether the mode of expression exceeds the reasonable limits of fair criticism." It is submitted that what Bowen L.J. there said is wholly inconsistent with the construction which the defendants' counsel seek to put on the word "fair" in this connection. If that construction be right, then the mode in which Bowen L.J. says the question is always left to the jury in such cases, and in which Ridley J. substantially left it to them in this case, would be most misleading. What the Lord Justice says, and the passage quoted from Lord Tenterden's judgment, both involve that the question is whether the mode of expression is so wrong, exaggerated, or violent as to exceed the reasonable limits of fair criticism. The judgment of Cockburn C.J. in Wason v. Walter (2) is to the same effect. After stating that the Court are of opinion that the direction given to the jury was correct, he says: "The jury were told that they must be satisfied that the article was an honest and fair comment on the facts - in other words that, in the first place, they must be satisfied that the comments had been made with an honest belief in their justice, but that this was not enough, inasmuch as such belief might originate in the blindness of party zeal, or in personal or political aversion; that a person taking upon himself publicly to criticize and to condemn the conduct or motives of another, must bring to the task, not only an honest sense of justice, but also a reasonable degree of judgment and moderation, so that the result may be what a jury shall deem, under the circumstances of the case, a fair and legitimate criticism on the conduct and motives of the party who is the object of censure." That passage is wholly inconsistent with


(1) 3 C. & P. 311, at p. 313; 33 R. R. 668.

(2) L. R. 4 Q. B. 73, at p. 96.




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the suggestion that the only question in such cases is whether the matter complained of is really criticism or goes beyond it. It is submitted that the question was one for the jury, and that there is no ground for setting aside their verdict: at any rate the Court cannot enter judgment for the defendants. The matter published was prim‰ facie libellous, and it was for the defendants to satisfy the jury that it was not libellous because fair criticism. [He also cited South Hetton Coal Co. v. North Eastern News Association. (1)]

Duke, K.C., for the defendants, in reply. In South Hetton Coal Co. v. North Eastern News Association (1) it would appear that the article went beyond mere comment, and contained misstatements of fact: see the judgment of Kay L.J. on p. 148 of the report in the Law Reports.


 

Cur. adv. vult.


May 11. COLLINS M.R. read the following judgment:- This is an application by the defendants for a new trial or judgment in an action for libel tried before Ridley J.

The plaintiff is an author and actor, and the action is founded upon a notice which appeared in the defendants' newspaper of a musical play written and composed by the plaintiff and produced by a company under his management at the principal theatre in Plymouth. The plaintiff himself acted a part in the play. The notice complained of was as follows: [The learned judge read the alleged libel as set out above.] It appears on the face of the statement of claim that the notice complained of was a dramatic criticism of a play publicly acted; and therefore it could not be, and was not, contended for the plaintiff that there was any libel unless the criticism exceeded the bounds of "fair comment." It was not suggested that there was any evidence of actual malice, there were no personal imputations, nor could any statement of fact be impugned. The innuendo set out in the claim does not charge any misstatement of fact, but confines itself to matters of opinion only. It is as follows: "By the said words the defendants meant, and were understood to mean, and the meaning of the


(1) [1894] 1 Q. B. 133.




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said words is that the said play was dull, vulgar, and degrading, that the members of the plaintiff's company were incompetent as actors, singers, and dancers, that they were music-hall artistes, and that the plaintiff was himself incompetent both as an actor and composer as aforesaid." The plaintiff, however, contended that the notice, though comment, was not "fair comment"; and the jury apparently adopted this view, and found for the plaintiff, with 100l. damages. The defendants challenge the verdict on the ground of misdirection, and also as being against the weight of evidence; but they rested their case mainly on the ground that on the facts admitted and proved it was competent for the Court itself, notwithstanding the verdict of the jury, to enter judgment for the defendants.

This raises a very important question as to what are the limits of "fair comment" on a literary work, and as to what are the respective provinces of the judge and jury with respect thereto. One thing, however, is perfectly clear, and that is that the jury have no right to substitute their own opinion of the literary merits of the work for that of the critic, or to try the "fairness" of the criticism by any such standard. "Fair," therefore, in this collocation certainly does not mean that which the ordinary reasonable man, "the man on the Clapham omnibus," as Lord Bowen phrased it, the juryman common or special, would think a correct appreciation of the work; and it is of the highest importance to the community that the critic should be saved from any such possibility. In principle, therefore, there would be nothing to leave to the jury unless there was some element in the criticism which might support an inference of unfairness in some other sense. No doubt this element might be, and has been, described in various ways and different instances of it given; but, broadly, I think Mr. Duke is right in contending that, in the case of a literary work at all events, it is something that passes out of the domain of criticism itself. Criticism cannot be used as a cloak for mere invective, nor for personal imputations not arising out of the subject-matter or not based on fact. "If," says Lord Ellenborough in Carr v. Hood (1), reported in a note to Tabart v. Tipper (2),


(1) 1 Camp. 354; 10 R. R. 701.

(2) 1 Camp. 350; 10 R. R. 698.




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"the commentator does not step aside from the work or introduce fiction for the purpose of condemnation he exercises a fair and legitimate right .... Had the party writing the criticism followed the plaintiff into domestic life for the purposes of slander that would have been libellous"; and, in another passage: "Shew me an attack on the moral character of this plaintiff, or any attack upon his character unconnected with his authorship, and I shall be as ready as any judge who ever sate here to protect him." In Merivale v. Carson (1) Bowen L.J. says: "In the case of literary criticism it is not easy to conceive what would be outside that region" - i.e., of fair comment - "unless the writer went out of his way to make a personal attack on the character of the author of the work which he was criticizing. In such a case the writer would be going beyond the limits of criticism altogether, and therefore beyond the limits of fair criticism .... Still, there is another class of cases in which, as it seems to me, the writer would be travelling out of the region of fair criticism - I mean if he imputes to the author that he has written something which in fact he has not written. That would be a misdescription of the work." I think "fair" embraces the meaning of honest and also of relevancy. The view expressed must be honest and must be such as can fairly be called criticism. I am aware that the word "moderate" has been used in this connection - Wason v. Walter (2) - with reference to comment on the conduct of a public man; but I think it is only used to express the idea that invective is not criticism. It certainly cannot mean moderate in the sense that that which is deemed by a jury, in the case of a literary criticism, extravagant and the outcome of prejudice on the part of an honest writer is necessarily beyond the limit of fair comment: see Merivale v. Carson. (3) No doubt in most cases of this class there are expressions in the impugned document capable of being interpreted as falling outside the limit of honest criticism, and, therefore, it is proper to leave the question to the jury, and in all cases where there may be a doubt it may be convenient to take the opinion of a jury. But


(1) 20 Q. B. D. 275, at p. 284.

(2) L. R. 4 Q. B. 73, at p. 96.

(3) 20 Q. B. D. 275.




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it is always for the judge to say whether the document is capable in law of being a libel. It is, however, for the plaintiff, who rests his claim upon a document which on his own statement purports to be a criticism of a matter of public interest, to shew that it is a libel - i.e., that it travels beyond the limit of fair criticism; and therefore it must be for the judge to say whether it is reasonably capable of being so interpreted. If it is not, there is no question for the jury, and it would be competent for him to give judgment for the defendant. In Henwood v. Harrison (1) the action was against the Queen's printer, who, under the direction of the Lords of the Admiralty, had printed a Blue-book containing a letter defamatory of the plaintiff and had sold copies of the same in ordinary course. The defence was that the letter was a fair comment on a matter of public importance. It was admitted that the defendant acted bon‰ fide and without malice. Brett J. nonsuited the plaintiff, and the Court of Common Pleas, Grove J. dissenting, upheld the nonsuit. Willes J., who delivered the judgment of the majority, says (2): "In actions of libel, as in other cases where questions of fact, when they arise, are to be decided by the jury, it is for the Court first to determine whether there is any evidence upon which a rational verdict for the affirmant can be founded." In that case, as in this, actual malice was not suggested, but the plaintiff nevertheless insisted that there was a question for the jury, and the ground of the nonsuit, which was upheld, was that the publication was "in the nature of fair criticism of a proposal affecting a matter of great national importance." That case, therefore, in its actual decision is directly in point. The decision, so far as I know, has never been questioned, though exception has been taken to the use of the word "privilege" to describe the public right of fair comment, and some eminent judges have preferred not to use a word which, according to its technical etymology, denotes the special right of an individual, as extending to cover the common rights of the whole community at large. In Merivale v. Carson. (3) Bowen L.J. treats this difference of view as one rather


(1) L. R. 7 C. P. 606.

(2) L. R. 7 C. P. at p. 628.

(3) 20 Q. B. D. 275, at p. 282.




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concerned with the "metaphysical exposition" of the origin of the right itself than with the limits of its exercise, and he adds: "But the question is rather academical than practical, for I do not think it would make any substantial difference in the present case which view was the right one." Indeed, since the time of Lord Ellenborough, there does not seem to have been any difference as to the extent and limits of the right itself in the case of literary criticism, and it was more commonly than not treated as resting on the principle explained by Willes J. in Henwood v. Harrison (1), which was decided in 1872, after Campbell v. Spottiswoode (2), decided in 1863, until Merivale v. Carson (3), decided in 1887: see, for instance, Wason v. Walter (4), decided is 1868. It certainly does not seem that the learned judges who suggested the later exposition of the right intended in any way to abridge the right of the critic as measured by the doctrine of "privileged occasion," or to interfere with the respective provinces of judge and jury in questions of libel. I think these considerations throw some light on the genesis and meaning of the word "fair" in the expression "fair comment," which is not of merely recent origin and co-existed with the view that the doctrine of "privileged occasion" applied to such cases. The comment, in order to be within the protection of the privilege, had to be fair - i.e., not such as to disclose in itself actual malice. It also had to be relevant; otherwise it never was within it, and the judge could hold as a matter of law that the privilege did not extend to it: Huntley v. Ward (5); Warren v. Warren (6); and in such case the only defence was truth. These factors were, I think, intended to be covered compendiously by the epithet "fair." In other words, it was intended to exclude those elements which took the comment out of, or prevented it from falling within, the privilege of the occasion. The result is that the question of "fair comment" is no more exclusively for the jury in one view of the nature of the right than in the other. In my opinion, there is in this case, in the language of Willes J.


(1) L. R. 7 C. P. 606.

(2) 3 B. & S. 769.

(3) 20 Q. B. D. 275.

(4) L. R. 4 Q. B. 73.

(5) (1859) 6 C. B. (N.S.) 514.

(6) (1834) 1 C. M. & R. 250; 40 R. R. 547.




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above cited, no evidence on which a rational verdict for the plaintiff can be founded, and the defendants are therefore entitled to have judgment entered for them. In this view it is not necessary to consider the grounds on which a new trial is asked for; but if there was any evidence fit to be considered by a jury, I am clearly of opinion that the verdict was against the weight of evidence.

Further, as to misdirection, I think that, though at the out-set of his summing-up the learned judge correctly laid down the law as to the extent of the defendants' right of criticism, the later part of his summing-up may have helped the jury to apply the standard of their own taste to the appreciation of the thing criticized, and to measure the rights of the critic accordingly. We have had excerpts from the play, including the songs and the stage directions, read to us; and I think it right to say that, in my opinion, it would be matter of regret for all well-wishers of the stage if an honest critic were debarred from commenting in the sense of this criticism upon such a production.


STIRLING L.J. and MATHEW L.J. concurred.


 

Judgment entered for defendants.


Solicitors for plaintiff: Law & Worssam, for Bond & Pearce, Plymouth.

Solicitors for defendants: Crowders, Vizard & Oldham, for Rooker, Matthews, Harrison & Co., Plymouth.


E. L.