malicious and not guilty denies the allegation of malice in the declaration. I do not mean to say that such matter may not also be pleaded specially it does not follow, that, because it may be given in evidence under not guilty, it may not be specially pleaded.

The defence relied on, was, that the publication complained of, was a true and bona fide account of what took place at the trial at Croydon, in 1847. The evidence which was objected to, clearly had a tendency to show that. The question now raised, is, whether, assuming the report to be a fair and bona fide one, that affords any defence. I think it is impossible at this day to say that a fair account of proceedings in a court of justice, not being ex parte, but in the hearing of both sides, is not, generally speaking, a justifiable publication. I do not lay it down as an universal proposition. Matters may appear in a court of justice, that may have so immoral a tendency, or be so injurious to the character of an individual, that their publication could not be tolerated. But, as a general rule, it may be assumed that the publication of a fair account of what passes in a court of justice, not ex parte, is justifiable, -unless there be something to take it out of that rule. There is nothing to take this case out of that general rule. The cases cited all apply either to ex parte proceedings, or where there is some special reason against the application of the general principle. Upon the whole, I am of opinion that there ought to be no rule. *CRESSWELL, J., concurred.

[*24

WILLIAMS, J.—I also am of opinion that there should be no rule in this case. I understand the question upon the first count to be, whether the lord chief justice was right in leaving it to the jury to say whether the matter complained of was a fair account of what took place at the trial at Croydon, and in telling them, that, if they were of opinion that it was, their verdict must be for the defendant. The objection urged is, first, that, assuming that to be so, it afforded no defence,and secondly, if it did afford a defence, that it was not admissible under not guilty. Before the new rules of pleading, it is clear, the defendant had the option of pleading matter of this sort specially, or of giving it in evidence under not guilty. And the new rules have made no difference in this respect. In Cotton v. Browne, 3 Ad. & E. 312, 4 N. & M. 831 (E. C. L. R. vol. 30), it was held, that, in an action for maliciously indicting the plaintiff, without probable cause, the defendant may give evidence of probable cause under not guilty; and that, if, in addition to the plea of not guilty, he pleads specially that he had probable cause, the court will order such plea to be struck out. Lord DENMAN there says: "The injury complained of in this action, is, not merely in the indicting, nor in the indictment being wrongful, but in maliciously indicting, and in doing so without reasonable or probable

cause.

The plea of not guilty is sufficient." So, here, not guilty puts

.

in issue, not merely the publication of the alleged libel, but also the maliciously doing it. Then, does the fact of the matter complained of being a fair and bona fide account of what took place in a court of justice, afford a defence? Subject to certain, qualifications, there is no doubt that it does *afford a defence. The only difficulty I have *25] felt has been in ascertaining the fact. It seems to me that this case is not affected by any of the qualifications adverted to. I assume that the publication complained of was of the whole of the proceedings, -not the substance merely; and I also take it for granted that there were no defamatory remarks of the writer's own added to it. I therefore think that the direction was correct, and that there is no foundation for the motion.

WILDE, C. J.-The rule is moved principally on the ground of misdirection, in the reception and leaving to the jury, under not guilty, evidence which it is said was inadmissible, unless the matter was specially pleaded: and it is further contended that the publication of a fair account of proceedings which take place in a court of justice, is not justifiable, if it reflects upon the character of an individual. It is not suggested that the alleged libel was not a fair account of what took place at the trial of the cause of Hoare v. Dickson, at Croydon ; nor was there any evidence given to impugn its accuracy. I see no reason, therefore, for finding fault with the conclusion the jury came to. The giving publicity to the proceedings of courts of justice, subject to certain exceptions, is justifiable; and there is nothing in this case to bring it within any of the exceptions. My brother Shee opened his defence by stating, that the alleged libel was only a fair and bona fide report of what had taken place on the former trial: and the objection then taken by the plaintiff's counsel, was, not that the fact of the publication being a fair and impartial account of the proceedings, was not an answer to the action, but that the defendant's counsel was not entitled to read the whole of the letters which were in evidence on the former occasion, because the whole were not set out verbatim in the alleged libel. The objection was, in *terms, *26] limited to the admissibility of the letters. It is now said, that the whole matter of defence was inadmissible, because not specially pleaded. The question is, whether the publication complained of was what the law calls a protected or privileged communication. The inference of malice arising from the publication of libellous matter, is rebutted, by showing that it was published upon a lawful occasion. Not guilty puts in issue the tendency of the alleged libel, and also the lawfulness of the occasion upon which it was published. It does not follow that a defence may not be given under not guilty, because it might also form the subject of a special plea. I think the evidence was admissible on the record as it stood; and, my learned brothers

being of opinion that there was no misdirection, I see no ground for disturbing the verdict. Rule refused.

It is libellous to publish a correct account of judicial proceedings, if accompanied with comments and insinuations tending to asperse a man's character: Thomas v. Crosswell, 7 Johnson, 264; Commonwealth v. Blanding, 3 Pickering, 304. The editor of a newspaper has a right to publish the fact that an individual has

been arrested, and upon what charge; but he has no right while the charge is in the course of investigation before the magistrate, to assume that the person accused is guilty, or to hold him out to the world as such: Usher v. Severance, 2 Appleton, 9.

BLACKETER and Others v. GILLETT. Jan. 15.

In case for the disturbance of a ferry, a count alleging that the plaintiffs were entitled to a certain ferry across the Thames, that the defendant conveyed passengers and goods across the river near to the plaintiffs' ferry, and that, by reason thereof, the plaintiffs lost profits, and were prejudiced and disturbed in the possession and profit of their ferry, was held, after verdict for the plaintiffs, to disclose a sufficient cause of action.

Where, on a motion in arrest of judgment a clear objection is not shown, the party will be left to his writ of error.

THIS was an action upon the case for the disturbance of a ferry.

The first count of the declaration stated, that the plaintiffs, before and at the time of the committing of the grievances thereinafter mentioned, were, and from thence hitherto had been, and still continued, possessed, to wit, as trustees for the society of Free Watermen of the River Thames, residing at Greenwich, in the county of Kent, called "The Isle of Dogs Ferry Society," of an ancient ferry, called [*27 Potter's Ferry, for foot-passengers, and goods belonging to such foot-passengers, across the river Thames, from a certain place in the Isle of Dogs, in the parish of Stepney, in the county of Middlesex, to Greenwich, in the county of Kent; taking for the carriage and conveyance of such passengers, and their goods, as have occasion for the same, over and across such ferry, in any boat or boats kept by or by the authority of the plaintiffs for that purpose, certain reasonable freights or ferriages, to wit, one penny for every person on foot: nevertheless, that the defendant, not being one of the free watermen aforesaid, but well knowing the premises, and contriving to disturb and injure the plaintiffs in the peaceable and lawful enjoyment of the said ferry, theretofore, to wit, on, &c., injuriously and unlawfully, and against the will of the plaintiffs, carried and conveyed, in a certain boat of him, the defendant, divers foot-passengers, for hire, over and across the said river Thames, and upon the said part of the same river, where the plaintiffs had such ferry as aforesaid, and upon the said ferry of them, the plaintiffs, to wit, from the Isle of Dogs aforesaid to Greenwich aforesaid; and that, by reason thereof, the plaintiffs had lost and been deprived of divers profits and emoluments, which would otherwise have

arisen and accrued to them from the enjoyment of their ferry, and had been and were greatly prejudiced and disturbed in the possession and profit thereof, and in their right and title thereto.

The second count stated that the plaintiffs, as trustees as aforesaid, were entitled to the fee-simple and inheritance of the said ferry, and that, whilst the plaintiffs were so entitled as trustees to the fee-simple and inheritance of the said ferry, the defendant conveyed divers passengers and goods over and across the river Thames, near to the said part of the said river where the plaintiffs had such ferry as aforesaid, and near to the said ferry, *to wit, from the Isle of Dogs aforesaid *28] to Greenwich aforesaid; and that, by reason thereof, the plaintiffs lost and were deprived of divers profits and emoluments which would otherwise have arisen and accrued to them from the enjoyment of their said ferry, and were greatly prejudiced and disturbed in the possession and profit thereof, and in their right and title thereto, &c.

At the trial, before WILDE, C. J., at the sittings in Middlesex, after last Michaelmas term, a verdict was found for the defendant on the first count and for the plaintiffs on the second.

Peacock, on behalf of the defendant, now moved to arrest the judgment.- -The second count discloses no cause of action. It merely alleges that the plaintiffs were entitled to a certain ferry, and that the defendant conveyed passengers and goods across the river near to the plaintiffs' ferry, and that by reason thereof the plaintiffs lost profits and were prejudiced and disturbed in the possession of the ferry: whereas, to give a cause of action, it should have charged the defendant, either with setting up a new ferry, as in Churchman v. Tunstal, Hardres, 162, and 2 Rolle's Abridgment, 140, 1. 20,(a) cited in Com. Dig. Action upon the Case for a Nuisance, (A)-or with having so carried the passengers and goods fraudulently and with intent to evade the plaintiffs' ancient ferry, as in Tripp v. Frank, 4 T. R. 666, and Huzzey v. Field, 2 C. M. & R. 432,† 5 Tyrwh. 855.(6) [WILLIAMS, J.-Surely this is a very old form of declaring.] The old form was, charging the setting up *a *29] new ferry, to the nuisance and disturbance of the ancient ferry. [MAULE, J.-The second count is substantially the same as that in the case of Tripp v. Frank. Does not the concluding allegation, that the plaintiffs were greatly prejudiced and disturbed in the possession and profit of their ancient ferry, and in their right and title thereto," make the count good? The plaintiffs, to entitle them to a verdict on this count, must have proved, not merely that the defendant carried over some person near to their ferry, but that the act complained of was a disturbance

(a) Translated, 16 Vin. Abr. 26, pl. 4, and citing 22 H. 6, 14 b (M. 22 H. 6, fo. 14, pl. 23, Prior of St. Nede v. Weston.) That was an action for erecting a horse-mill, to the injury of three mills of the prior, in which the ferry question was discussed obiter between PASTON, J., and NEWTON, C. J.

(b) And see Peter v. Kendal, 6 B. & C. 703 (E. C. L. R. vol. 13).

of their right.] It is not enough to say that the defendant disturbed the plaintffs' ferry, without saying how. [MAULE, J.-Probably not, on special demurrer: but the question is, whether it is not sufficient after verdict.] The thing relied on as a disturbance of the plaintiffs' right, must be something that is equivalent to a setting up a new ferry.

MAULE, J.-Carrying passengers and goods across the river in the manner here alleged, may or may not be a disturbance of the plaintiff's ferry. The count charges a disturbance; and the jury have found it.

It is only in a tolerably clear case that the court will grant a rule to arrest the judgment. We think this is a case in which the defendant ought to be left to his writ of error, if so advised.

Rule refused.(a)

(a) See Blissett v. Hart, Willes, 508, Bull. N. P. 76.

*NAVONE v. HADDON and Another.

Jan. 25.

[*30

Upon a policy on goods free from particular average, no damage short of the absolute destruction of the thing insured, will amount to a total loss.

The plaintiff insured certain bales of waste silk, from Leghorn to Liverpool, with the usual memorandum declaring silk free from average, unless general, or the ship should be stranded. The vessel, being compelled by stress of weather to put into Gibraltar, was there repaired, her cargo being necessarily unloaded. Some of the bales of silk were found to be considerably damaged by sea-water, and were consequently sold at Gibraltar, by the master, in the exercise of what the jury found to be a reasonable discretion, and such as a prudent owner uninsured would have exercised. But the silk might at a reasonable or moderate expense have been put in a condition to be brought home by another vessel: and it was in fact brought to England, and sold as silk, though in a very deteriorated state:-Held, that this was not a total loss; and, consequently, that the assured was not entitled to recover.

COVENANT, against two of the directors of The Neptune Marine Insurance Company.

The plaintiff declared upon a policy of insurance effected by him with the company upon eighty-one bales of waste-silk, valued at 22451., warranted free of particular average, unless the ship should be stranded. The voyage was, in ship or ships, at and from Genoa to Leghorn, and at and from thence per ship or ships to Liverpool. The declaration averred that forty-four out of the eighty-one bales of silk insured, were shipped at Genoa, and transhipped at Leghorn on board the Wanderer, on the voyage mentioned in the policy; that one Pierre Borella was interested in the silk; and that there was a total loss, by perils of the seas, of twenty-three of those bales, and a general average as to the remainder of the forty-four bales.

The defendants traversed the total loss averred, and paid into court a sum sufficient to cover the general average loss.

The cause was tried before WILLIAMS, J., at the sittings in London after Trinity term, 1848, when a verdict was found for the plaintiff, with