C. A. 1903 MCQUIRE v. WESTERN NEWS COMPANY. Collins M.R. 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 MORNING 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 in 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. C. A. 1903 MCQUIRE V. 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 COMPANY. the weight of evidence. Further, as to misdirection, I think that, though at the outset 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. WESTERN MORNING NEWS Collins M.R. 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. VOL. II. 1903. I 2 1903 May 9. KAUFMAN v. GERSON. Conflict of Laws-Agreement made Abroad to stifle Foreign Prosecution— The husband of the defendant having fraudulently misappropriated in France certain moneys of the plaintiff, the plaintiff threatened to prosecute him in the French Courts. Thereupon the defendant, by an agreement made in France, agreed to pay to the plaintiff by instalments out of her own money the amount so misappropriated by her husband, upon the terms that the plaintiff should abstain from prosecuting. The agreement was intended by the parties to be wholly performed in France, and by the French law that agreement was not invalid. An action having been brought in this country to recover instalments due under the agree ment: Held, that as by the law of the country where the contract was made and was to be performed the contract was not invalid, the action was maintainable here. TRIAL before Wright J. without a jury. Previously to November, 1897, the plaintiff had advanced to one Emile Gerson, the husband of the defendant, money to be used for the purchase by Gerson of skins, which were to be sold for the joint benefit of the plaintiff and Gerson. Gerson, instead of applying the money to the purpose intended, appropriated it to his own use. The conduct of Gerson in so misappropriating the money amounted to a criminal offence by the law of France, and the plaintiff threatened to take criminal proceedings in the French Courts. In order to save her husband from being prosecuted, the defendant, on November 16, 1897, entered into an agreement in writing with the plaintiff in Paris that, in consideration of the plaintiff forbearing to prosecute her husband, Emile Gerson, she would within a period of three years pay to the plaintiff out of her own money the amount of her husband's misappropriation. By the law of France this agreement was legal and enforceable. The defendant at various dates paid to the plaintiff under the said agreement sums amounting to 8017. 11s. 7d. The action was brought to recover a further sum of 134l. 9s. 1d. due under the agreement. The defendant contended that the agreement was not enforceable in this country, and counterclaimed for the return of the 8017. 11s. 7d. paid under it. Montague Lush, K.C., and Israel Davis, for the plaintiff. Montague Shearman, K.C., and Eustace G. Hills, for the defendant. The arguments and authorities relied on sufficiently appear from the judgment. May 9. WRIGHT J. The question to be determined in this case, as it stands at present, is whether the Courts of this country ought to enforce a contract made, and intended to be performed in, a foreign country, and according to the laws of that country, the contract being valid and enforceable according to those laws, but such that, if it were an English contract, the Courts of this country would refuse to enforce it on grounds of public policy or of undue influence. The question is of course not novel, but the authorities leave room for argument as to their application to this case. The facts are in brief these: The plaintiff Kaufman in France placed in the hands of Gerson, as a friend whom he wished to assist, a sum of money to be used in buying skins to be dressed and sold for their joint benefit. Gerson appropriated part of the money to his own use instead of applying it in buying skins. His conduct was criminal in France, and a prosecution was threatened. In order to avoid a prosecution, and to protect the good name of Gerson's children, his wife, the present defendant, under the influence of Kaufman's threat and at his instance, agreed in writing to make good by instalments out of her own property the amount of the defalcation, on the express terms that there should be no prosecution on the part of Kaufman. This agreement was made in France, and it was intended by the parties to be governed by French law, and to be wholly performed in France. The defendant was English by birth; her husband was a German by birth; both were at the time of the agreement domiciled in France. According to the uncontradicted evidence of the single witness called as an expert in French law, and to some authorities which he cited, 1903 KAUFMAN V. GERSON. 1903 V. GERSON. Wright J. the agreement was not invalidated in France, either on the KAUFMAN ground of the compromise of a criminal charge, or on the ground of oppression or undue influence, or on the ground of want or illegality of consideration; and for the purposes of to-day I must accept that evidence. The wife being now resident in England, and having property here, this action is brought against her to recover instalments due and payable under her agreement. It is contended on her behalf that the consideration for the agreement is, according to English law, illegal and contrary to public policy, and that the agreement was obtained by means of undue influence and threats, and therefore ought not to be enforced in this Court. The fraud of Gerson was not, in my opinion, of such a kind as to have been in this country the subject of an indictment for larceny at the time when it was committed, which was before the commencement of Sir R. Finlay's Act (1 Edw. 7, c. 10) for amending the law of larceny. Gerson did not obtain the money by any trespass or trick. He was bound to account for the money, but he was not a bailee of it. There was plainly not embezzlement. Nor was there such agency or proof of such a direction in writing as would have satisfied ss. 75-79 of the Larceny Act, 1861. I will, however, assume that the fraud would have been criminal if committed in England, or that the English rule against agreements in compromise of crime may extend to cases of frauds criminal by foreign laws. At any rate, on the evidence the duress or influence was, I think, such as would by English law have vitiated the agreement. The contract having been made in France by parties domiciled there, who intended it to be wholly performed in France and according to French law, it must primâ facie be taken to be governed by French law, and, it being taken to be valid by that law, the Courts of this country will entertain an action upon it, and will give such effect as they can give to the rights of the parties as those rights are ascertained by French law, unless the defendant can shew that the case is within one or other of certain exceptions, the general nature of which is well defined, and most of which are not applicable in this case. |