not. At the same time I feel the great importance of the question. No doubt the liberty of the press is of very vast importance, and the privilege of commenting on the public conduct of public men cannot be too highly appreciated; and if you see your way to the conclusion that the writer here had a sincere belief that the plaintiff, in his invitations to the public to subscribe, was actuated by a desire, not to promote the cause of Christianity, but his own sordid interests, although I should still say that it is not a ground on which you could find a verdict for the defendant, yet you may find that matter specially in his favour; for it is a question of such great importance that, although my own opinion upon it is clear, still, as it is now for the first time raised in a Court of Justice, I will give the defendant leave to raise it in the full Court, by moving to enter the verdict for him upon the matter so found in his favour, should your finding be such as thus to raise the question. Even, however, although your verdict should be for the plaintiff, yet, when you come to consider the question of damages, you must take into account all the circumstances of the case (a). And it is to be regretted that the means proposed by the plaintiff to carry out his ends should have been of a somewhat doubtful character. It certainly does at first sight seem to be so when a man says, "Here is a great work-a work in which all Christians should unite." And how is it to be accomplished? "Subscribe to my newspaper." It does sound odd, and provokes the suggestion that it is not so much the interests of religion which the man has in his mind as the promotion of the circulation of his own paper. And when a person not imbued with his religious views comments upon the case it might easily suggest itself to his mind in that point of (a) What follows, as the direction as to damages would, it is submitted, have been a correct direction as to the law, and gives the VOL. III. strongest grounds for such a direc- H H F.F. 1863. CAMPBELL v. SPOTTIS WOODE. 1863. CAMPBELL v. SPOTTIS WOODE. view. You may think that there was no ground for it, but still, if it might naturally suggest itself to the mind, you must make some allowance for the position of the writer, who may have been influenced by a sense of public duty; for I cannot help saying that I think the counsel for the plaintiff went too far when he stated that the object of the article was to injure and crush the plaintiff. There, then, was a strong spirit of antagonism naturally aroused by these very conflicting views on a matter connected with religious opinions, and the writer in the Review, no doubt, sat down to attack the plaintiff, not as the individual, but as the journalist, and as an upholder of particular views. And if he has, in doing what he might conceive to be his duty, unjustly aspersed the plaintiff, we must still look at the matter as one arising out of a public controversy, and not as one in which there was any intention to wound and injure the plaintiff (a). If you think that the only effect of the article was fairly to discuss the proposal of the plaintiff, then find for the defendant. If you think that the effect is to impute base and sordid motives, then your verdict ought to be for the plaintiff. If, at the same time, you are of opinion that the writer did so under an honest and genuine belief that the plaintiff was fairly open to these charges, I invite you, while you find your verdict for the plaintiff with such damages as you think proper, to find that matter of fact. specially, and I shall, in that event, reserve leave to the defendant to move to enter the verdict for him, if the Court should be of opinion that the matter of fact so found in his favour entitles him to the verdict. Verdict for the plaintiff for 50l., the jury finding, specially, "that the writer in the Saturday Review believed his imputations to be well founded" (b). (a) Vide ante, p. 433 (a). an action against the printer, such evidence of course would have been irrelevant), the jury must have meant, that the plaintiff's publications were such as would naturally, although (as it must also be taken that they conceived) erroneously, lead to such a belief; et vide ante, p. 433 (a). This, whether or not warranted by the evidence, clearly amounted to a verdict for the defendant, unless a public writer, commenting on the plaintiff's own publications, must al ways be liable for criminatory in- ESCOMBE AND ANOTHER v. JARVIS. DECLARATION, that the plaintiffs, at the request of the defendant, had agreed to buy of the defendant, and the defendant agreed to sell to the plaintiffs divers casks of ale, to be Bass's ale, and to be in a fit and proper condition to be bottled, corked and packed and put up, and be reasonably fit and in a proper condition for the purpose, as the defendant well knew, of being shipped, and to be by the defendant shipped for the plaintiffs to Bombay. 1863. CAMPBELL ย. SPOTTIS WOODE. 1862. London Sittings. Michaelmas Term. In an action on a contract to sell to and ship for and on account of the plaintiffs a quantity of beer, to a firm for sale on his account, and at Bombay, on an alleged undertaking that it should be in a fit condition for shipment; it was proved that when the beer was ware housed it was it appeared that, Breach that the defendant made default, &c., and did not ship Bass's ale as agreed, but only a portion of the said shipment was of Bass's ale, and a great portion thereof was ale of a different and inferior quality and description; and the ale shipped by the defendant was not in a fit and in bad condiproper condition to be shipped, as agreed, and the defend- tion; but ant so carelessly and negligently and improperly in that through the debehalf bottled, corked, packed and put up the same; that plaintiff in not by reason of the said unfit and improper condition thereof Bombay firm advising the for such shipment, and by reason of the careless, neg- of the conligent and improper manner of bottling and corking and beer had lain packing and putting up the same, a great portion of the unwarehoused, ale became and was greatly spoiled and damaged, and lost and destroyed, and of no value (a). And by reason of the (a) Neither in pleading nor in proof was it clearly distinguished fault of the signment, the for six weeks in the ship or on the quays, and that this would amply account for its bad condition: how much, if any, of the damage there was no evidence of a cause of action, either for breach of contract or negligence. 1862. said several breaches the plaintiffs lost the expenses which they had been put to and incurred in purchasing and and Another shipping the same, &c. ESCOMBE v. JARVIS. Plea that the defendant did not break the said agree ment. Macaulay, Massy Dawson, and John Simon, for the plaintiffs. Bovill, Forsyth, and Hannen, for the defendant. On the 5th April, 1860, the plaintiffs desired the defendant to ship for them 300 casks of Bass's beer to Bombay on their account, and as he had not so much of Bass's beer in stock, they desired him to ship as much as he could. The beer was in casks and he was to bottle, pack, and ship it to the house of Ewart & Co., at Bombay. He sent the invoice to the plaintiffs next day and the shipment was completed. The amount of the invoice was 471l., which was paid, and the freight was 1317., which, with insurance and other charges came to 6127. The plaintiffs sent the invoice to Ewart, Arbuthnot & Co., of Liverpool, who corresponded with Ewart & Co., of Bombay, but there was no direct notice to the latter firm of the consignment (a). On the 11th July, 1860, the cargo arrived at Bombay, and the beer remained on board or on the quays while the rest of the cargo was being landed. It was not until the middle of August that the beer was heard of by Ewart & Co., and warehoused for sale; and during the interval of or condition of the beer, which gence, as to which contributory negligence would be a defence. But, in point of fact, it turned out, not by way of contributory negligence, but by way of failure of evidence, that there was no proof of any breach of contract at all. (a) See Houlder v. The Steam Navigation Company, ante, p. 170. six weeks the beer remained unwarehoused, and was rolling about on board or on the quays. 1862. ESCOMBE v. JARVIS. On the 22nd August, 1860, Ewart & Co. sold the beer and Another and sent home to the plaintiffs account sales, which only amounted to 1971. They accounted for this by the bad condition of the beer, which they said had burst a large portion of the bottles, many also having got broken, and so much of the beer as remained was out of condition and did not realize half the usual price; and they complained of not having been advised of the shipment. The plaintiffs claimed a return of the price paid (less the sum received from the proceeds of the sales), or the amount at the market price of the day, less the same sum. Bovill called the defendant to deny any warranty or undertaking as to the condition of the beer, but contended that there was no proof that there had been any breach of contract, even assuming it to have been as stated in the declaration; and he elicited, that the beer had remained six weeks unwarehoused as already mentioned, and that beer shipped in the best possible condition would not stand the heat when thus exposed to it, and required to be at once landed and warehoused as soon as it arrived. Upon this, COCKBURN, C. J., interposed, and observed that it was difficult to see how after that evidence the action could on any ground be maintained, as there was no evidence to account for that period of six weeks, and no evidence to show that the beer was not in the best condition when it arrived, but only that after that period it was in bad condition after it had remained so long exposed, which was what might naturally be expected (a). (a) Where there is no evidence that there has been any fault or default on the part of the consignor, the fact that the goods were shipped or sent in good condition, and were in bad condition when they arrived, would be sufficient prima see facie evidence to fix the shipowner, |