Supreme Court Of Judicature. (DS1fre the MIAsrST of lhe ROLLs, LORD JusTIca 'LETcuiE . MouLTO1W, ar.d LoBD J us1'ICE BucarnY.) AfERSON V. CALVE:T. A Ha-npstead Libel Action. This was an npplication for judgment or new trial on appeal from tho verdict of a jury at a trial before 31r. Justice Lawrence. The case is reported in tho Court below in The TiiLecs of October 26 last. The action was one for libel in which the plaintiff, Mr. J. E. Anderson, ai market gardener, sued the defendant, Mr. A. F. Calvert, for sending to various personS in the HIampstead neigh- bourhood a report, furnished bv the defendant to the Iiampstcad Record, of police-court proceeding.s brought by him in July, 1906, against the plaintiff for threats to shoot the defendant, from wlhich report the plaintiff alleged the defendant had maliciously bmitted tho words of tho magistrate that the plaintifl left the Court wvithout a stain on his character, end foi supplying that report to the Harapstead Record. It ampeared from the plaintiff's evidence that at one tiiie ho was 'worth ?10,W00 and had three establishments at H-Iampstead. He said there had been numerous transactions between him and tho defendant from 1898 to 1906, in the course of whieh he lent che defendant sums amounting, as he alleged, to over ?7,000. For that indebtedness tho deK ndant handed him in 1902 11,500 shares in certain gold and copper mines of which the defendant wes direotor, and which tho plaintifi had bcen unable to sell. T'he defendant in 1898 became brnkrupt, the claims amounting to ?40,000; but as his property was tied up by his marriago settlement his creditors received nothing, and the defendant finally obtained his discharge in the present year; ?15,000 claimed remained unexpunged. A scheme for paying the defendant's creditors failed to go through. The plaintiff, in July, 1900, called on a Tuesday to try to recover L15, money lent the defendant by the plain- tiff'swife. The defendant issued a warrant against him on the Saturday for threats to shoot him, vhich the (defendant alleged the plaintiff had mado on the Tuesday. The plaintiff was arrosted under the warrant on the Satur- day and kept in gaol till the Monday, and said that he ivas therefore unable to give evidence on the Satnrday or Monday in tvwo actions he was bringing against the defendant. On the Monday the magistrate bound the plaintiff over in ?1,000 to keep tle peace, but stated that lie left the Court without a stain on his character, or 'words to that effect. Subsequently, the defendant com- posed the report of the proceedings complained of and sent it to the hampstead Record, and sent copies of it to various friends of the plaintiff and also to the Official Receiver in tho plaintiff's bankruptcy. Mr. Justice Lawrence, in summing up, said that the jury must decide if the report sent by tle defandant to the paper was a fair and accurate report, and if in sending it the defendant was actuated by malice. The dispute about the shares and the bankruptcy of the defendant was beside the mark. The report wasd hesded, " Alleged Threats to Shoot Mr. Calvert" ", but at the police-court only~ the defendant wass called to prove the threats, and another witness, wvho it was said was presenit wras net called then or since. teld tho defendant acteqd inx excess of his privilege by sending this report and without stating the source ? Tho defendant had bought 100 of the papes in which his report was printed, and had sent cuttings of the report to six persona. Did that show maice, or were tho cuttings sent honestly to informa them of tho facts ? The jury found that the report was not fair, end was not ahe honestly but maliciouslly, and awardcd damages, ?75S0. Judgment wa-rs accordingly entered for tho plaintifr for this amount, with coats. The defendant now applied for a niew trial. Mr. CLAVEL SA.LER, t.C., and Mr. WnArlAET, for the defendant, ontended that there ought to be anew trial, first, on the ground that the daniages Nvere excessive on the evidence, and, secondly, that there had beon a misdirection on this point, ges the Judge ought to have warned the jury to disniss from their mind various mnatters outside tho alleged libel, which had been brought out in the courso of the trial, whereas he had told them that in assessing the amount they could take into con- sideration all tho facts. Mr. MI. Lus31, K.C., and Mr. RAr.I BANKES, for the plaintiff, argued that damages for libel stood on a different footing froma damages in nther actions; once admit that so-called " vindictive " damages could pro- perly bo given, then conduct generally aight be taken into consideration, and the jury need not be confined to the mere matter of the libel, but might have regard to all the circumstances, and the amount of malice aught be considered, and consequently there bad been no mis- direction. At the conclusion of Mr. Clavell Salter's replv on February 26, their Lordsbips reserved judgment, w,hich was delivered this morning, dismissing the appeal. The MASTER of the Roars, in the coinse of h!s judg- ment, said that the jury had found that the report con- taining the alleged libel was not a fair and accurate report and that tlio report was no1 made honestly and was made maliciously. In his Lordship's opinion there was abundant evidence to justify those findings and no mis- direction on the part of tho learned Judge. It wse not necessary to say anything more on that part of the case. But it w urged that the darmiages awarded were excessive and that the learned Judgo misdirected the jury by directing that they were entitled to take into considera- tion all tho facts laid before them which tho jury thought ought to be relied on for the purpose of assessing damnages. In his Lordship's opinion this con- tentioni ought not to prevail. It was well settled that in an action for defaination the jury, in whose province the assessment of damages specially Iny, were not limited in any way by the amowut of pecuniary loss actuatly proved. They might give punitive damages, and, w-here justifica- tion liad bee pleaded and malice had been proved, tlhey were entitled to have regard to all the conduct of the defendant down to the time they gave their verdict- " Pied v. Graham " (21 Q.BJD., 55). Circumstancs going to prove malice could not be excluded, whether those circumstances were before or after the publication of the libel sued upon-" Pearson v. Le maitrc " (5 Manning and Granger, 705). But the iury ought not to treat such prior circumstances as giving a separate and independent right to damages. Aptplying these principles to the present cose, in his Lordship's opinion, the defendant was grossly nnd wickedly maliciouts in his conduct towards tho pl2intiff, and in the circumstances the jury were fully justiled in talzing into consideration all the facts going to show malice and in awarding punitive damages, and his Lordship saw no reason to supposo that the damages avwarded wero based upon any separate or independeont cause of action. isor did lie thiiik the omission of the learned Judgo to warn the jury was any ground for gniting a new trial, having rogard especially to Order 39, rule 6. In his Lordship's opinion the damages wero not so excessive as to bo 'n.reasonablo, regard boing had to the defendant's malice. The appeal must be dismissed, with costs. Loa.D JusTICX FJ,VrCRERs MOUL.TON delivered judg- ment agreoing with the Master of the RolLs. LoaD JusTyCn Biu;CLEY said that lio agreed vith the judg_ment 0o Chief Justice Tindal in " Pearson v. Lemaitre " (5 Manning and Granger, at p. '19) :-" This appears to us to be the correct rule-viz., that either party may, with a view to the damages, give evidenico to prove or disprove the existence of a malicions motive in the mind of the publisher of defaimatory mattor: but that, if the evidonce given for that purpose establishes another cause of rction, the jury should be cautionaed against giving any damages in respect of it. And if suich evidence is offered merely for the purpose of obtaining damages for sucl subscquent injury it wvill be properly rejected." His Lordship doubted whether the leared Judgo in the Court below, in his summing up, had sufRiciently cautioned the jury that, though it,was open for them to give punitive dmages for maiMce, it was not open to them to give damages for anothor cause of action, end he (Lord Jus,tice bunckrley) did not shlare the condidence of the Master of the Rolls that the damages awarded were not based upon any sepamto or inde- pendent cause of action. But, under Order S9, rule G a now trial would only be ordered if, in tho opinion of the Court, a substantial wrong or miscarriage had been occasioned by a misdirection, and he was not prepared to differ from tho view taken by his learned brethren that the appeal mist be dismissed. YASH V. nMAN. An Undergraduate's Tailor's Bill. This was an application for judgment or a new trial on appeal from a verdict and judgment at a trial bofore 'Mr. Ridloy. The case is reported in The Times of December 11 last. The plaintiff, Mr. W. Nash, a tailor, carrying on business at 31, Savile-row, sued tImo de- fendant, Mr. Roy Inman, to recover the sum of ?145 lOs. 3d., being the credit prioo charged for clothes supplied to him between October 29, 1902, and Jume 16, 1903, at which time he was aL undergraduato at Cam- bridgo. The defence was that the defendant was an infant at the time the goods were supplied, and that they were not necessaries. From the opening statement of counsel in tho Court below it appeared that the plaintiff had various agents, who went, among other places, to the Universities of Oxford and Cambridge to solicit ordors. In October, 1902, one of these agents, Mr. Silceck, called upon the defendant at hislodgings, in Cambridge. The defendant on that anud subsequeateoccasions ordered Euits of clothes, waistcoats, and overcoatsa the total cash, rioe for wvhic amounted to ?121 odd. the credit Drico boing ?145 lOs, 3d. There was no dispute thbt the whole of- the goods had been received by the defenda,nt. After the efendant left Cambridge be was seen froms time to time by the plaintiff's representatives with regard to the pay- ment-of the account, and he promised to get a cheque for tho amount from his father. This he failed to do, and the present action was broight. The defendant's fatehr gave evidence for tho defendant that thedefencnt was horn on Janxuary 17, 1v3, end that before he wext to Cambridge he was provided with clothes suitablo to his -osition. iAt the conclusion of the evidence Mr, Justice idley said he thouglht thero was no case to go to the jury, lie hold that no part of the thingswerent'ces- snrfes, and directed that there should be verdfct and judgmeit for the defendant. The plaintiff eppealed. Al r. I-I. A. McCardie was for the plaintill; Mr. J. R. Atkin, K.C., and Mr. Cecil Walsh for the defendant. Ml. MCCOA.tDIE contended that iu tlhe circumstances the onus of proof lay on the defendant to show that he wvas sufficiently supplied with necessaries, this being a cironmastaTce vhicih was peouliarly within his knowledge. It might ba that tbere were articles, a betting-book, for i nstan:ce, which from their innate character a Judge might rule as a matter of law could not be necessaries. But if tho articles supplied were, as in tho present case, prima facic nrceFsaries, then it became a qnestion whtether, cither Trom the price of tho articles not being suitable to the infant's position or fro3m his being already provided wvith, a sU3fficient supply of the articles in question, thev sholldl, nevertlheless, not be considered necessaries. Blt tho question vhether or not the infant was suffieiently provide4 wau a question of fact on vhich a plaintiff was entitled to have the verdict of a jury. A long series of cases, going back for a century, showved that it was not necessary J or a plaintiff to prove that an infant was not sufficiently provided. Mr. CFCI.WALsII 3fr. Atidn, .O., with him), for the defendant, snbmitted that the cseo was concluded bv section 2 of the Sale of Goods Act, 1893. On the plea if infancy the onuis of proof was shifted, and in the present case there was no evidence that these clothes were eces- saries, having regard to the fact that this young man bad a re.asonable and proper outfit for an undergraduate. The CouRT dismissed the appeal. The MASTER of theoRos.s said that the case was mn- do ubtedly one of difacultv and also one of importance. T ho action was brought by a tailor against Mr. Inman, who was at the dato of the transactions in question an infant. There w1ero no pleadings in the action. There was simply a specially endorsed vilt and an application under Order 14. The matter was adjourOned into Court and came before Mlr. Justico Ridley a ury. In sub- =tanceteposition was thiat teplitf asun the defendant for goods sold anand deliv dthe defendant pleaded that he was an infant at the dte of the sale and delivory. At any rate, since the Infants' Relief Act, 1874, all contracts for goods sold and delivered to an infant -were absolutely - void, the only exception being contracts for necessaries. Then canme section 2 of the Sale of Goods Act, 1893 :-1 C'apacity to buv and sell is regulated by the general law coneorning capacity to con- tract, and to transfer and acquire prporty. Provided that where necessaries are sold and delivered to an infant, . . . ho must pay a reasonable prico therefor. Necessaries in this section mean goods suitable to the condition in life of such infant, . . . and to bis actual requirements at the time of the sale and delivery." The effect of that was that, in a ease likec the p-esent where the plaintiff sued for goods sold and delivered ana the defendant pleaded infancy, the plaintiff must reply that tho goods sold wore necessaries within the menning of the definition contained in section 2 of the Sale of Goods Act, 1893. In his Lordship's view it was not sufficient for a plaintiff to say that he had discharged the onals vwhich rested on him if he merely showed that' the goods wero suitable for a person in tho infant's condi- tion of life. He must go on and show not only that the goods were suitable to the infant's condition of life, but also to his actual requirements at the time of tbe sale and delivery. A plaintiff might, of course, bring evidence to prove this, or he might show it from tbe defendant's evidence, but unless lhe showed, in one tay or the othem. that the goodIs delivered were suitable tothle actual requirements of the infant atthe timeof ale and delivery, in his Lordshp's view, the plaintiff had not discharged the burden put upon him. Mr. McCardie, in an able and ingenious argument, had called the attention of the Court'to a number of authorities, which, he said, established that it hbad never been suggested that the burden of proof cast on a plaintiff who supplied goods to an infant was anything more than to show that the goods were of a class which mnight be necessaries, having regard to the position of the defendant and his fily, ind that it was then for the 4ury to find as a matter of fact aye or no, twero these goods necessaries, hbt that it hal never been the law that a plaintifR might have to go into an investigation of matters which miglht prcsent difficulties. H-is Lordship thought that there w'as force in the argu- ment up to a certain point, but it was right to remember that the law had been developed in the course of the last century. Up to the year 1833 it was doubted whether it u-as even admissible to puit in evidence to prove that theI defendant had goods of the class supplied at the date of he aleso hathe could n-ot want any more, until aL Divisional'Court, overruling Mr. Justice Smith on this point deried i " Iarnes v. 'Tovo"1 (13 Q.B.D., 410) thatan ifantdefedant migh t gieevidence that lie was whlethleyr tuheplanitviff dido id iiVot ino ot,f thu exiting supply. T.hen came the case of " Johastone v Mar'-s" (19 .13D.,509, wichcam beorethe Lords Justices sittingsas a Di)visional Court. Inthat case Lord Esher said:-" am f oinio tha ts evidence was improperly rejected. It Lies upon the plaintiff to prove, notthattea goods suppeled btelotng to the class of necesares s ditinuised fom hatof luxuries, but tha the gods suple he upied were necessaries to th infant. The circumstance that the infant was suficiently supplied at the time of tho additional supply is ohiul maeilt ti su, as well as fatal to the contention of the plaintiffwVith respect to it." And Lord Justice Lindley sid :-" If an infant can be made liable for art icles which may be necessaries without proof that they are necessaries there is anu end to the protection which the law gives him." HIis Lordship had referred to those two passahgebs, atnd ptartictulaerlay to the last, b hcaude altoug itmigt b tre tat he anga"ewhich he had readwasnotabsoutey ncessry or 'bedecision, tihe language was unambiaguous and forfetly ear, and seeined to be logicallnvoled in t definition of "necessaries. " ait atr those two decisions came the Sale of Goods Act, 1893, which defined in language that admitted of no doubt what was thu proper interpretation of these necessaries for whichi, and for which alone, an infant could he made liable. That definition ia terms included the second thing that Lord Eshor aend Lord Lindlev svad was involved in the term "necessaries," and the bucden of proving which ws, they said, cast upon the plaintifl. That being so, how did the matter stand in the present cas?o eThe plaintiff called evidenc to prove the sale and delivery of the goods. There being no pleadings, theG infancy was not formally admitted. The father of the defendntt was called, and he proved the date of the defendant's birth, anxd the infancy was not really dis- puted. then the father went on to give evidence that the infant was sup lied with clothes suitable and neressary tand proper to his condition of life and i p t undergraduate. Speaking for bLmself, he,(the Master of the Rolls) wvould lhave been betteir satis,fied if the leamned Judge who tried the case had left the matter to the jury with sueh a strong direction thain practically they wouId have been compelled to firid a verdict for the defendant.. The learned Juidge lied ruled, as a matter of law, that there waus no evidence fit to be submitted to the jury that these artuicles, or any of t-hem, were necessaries within the definition. Thinking as lie (the Master of the Rolls) did that there was no evidence to support that issue, was I he leamed Judge wrong ix doing so? There wts not a 4c.intilla of evidence to support even the proposition thalt theo goods were suitable to the in-fant's conidition of life, anid even if the verdict had been left to the jury and the jury had found in favour of the plaintiff, the Court of 'rhoLoan Jtsrlcs alo deiverd jdgments dis. SUPREME COUIRT OF JtTDICATU1'E. COURT OF APPEAL.