Defamation - Case Law

The defendant sent through the post in an unclosed envelope a written communication which the plaintiffs alleged was defamatory of them. The communication was taken out of the envelope and read by a butler who was a servant at the house to which the envelope was addressed in breach of his duty and out of curiosity. In an action for libel brought by the plaintiffs against the defendant:-

Held, that there was no evidence of publication by the defendant of the communication, and that therefore the action would not lie.

APPEAL by the plaintiffs from a judgment of Darling J.

The action was brought to recover damages for libel and for an injunction. At the trial, which took place at the Sussex Assizes on July 11, 1914, before Darling J. and a special jury, the learned judge held that there was no evidence of publication and entered judgment for the defendant.

The plaintiffs were four infants who sued the defendant, their father, by their next friend Miss Hilda Stark. The defendant, Captain Philip S. Huth, R.N.R., was married in 1898 to Miss Edith Greaves, and the plaintiffs were the issue of the marriage.

Up to September, 1913, Captain and Mrs. Huth lived together at Wadhurst, when, owing to differences with her husband, Mrs. Huth left her husband's house at Wadhurst and went with her children to live at Torquay at a house called "Hillstead," where her friend Miss Stark resided. The alleged libel was sent by the defendant to Mrs. Huth by post in an unclosed envelope bearing a halfpenny stamp, addressed by some person whose writing was not identified to "Miss Edith Greaves, care of Miss Stark, Hillstead, Torquay." The unclosed envelope contained an account which had been originally sent in a closed envelope stamped with a penny stamp by a saddler named Boyes at Wadhurst to Mrs. Huth at the Wadhurst address in respect of a bill for 3 8 3 which had been incurred by Mrs. Huth. The defendant had taken the account out of the envelope in which it was enclosed by the saddler and placed it in the unclosed envelope after he had crossed out the name Mrs. Huth on the account and had written upon it (omitting immaterial words) "Not known. Try Miss Edith Greaves," and also the following words: "To Mr T. Boyes, saddler, Wadhurst. The woman known as 'Mrs. Huth' will henceforth take her maiden name of Miss Edith Greaves." On the back of the account the defendant had written: "The woman in question has forfeited all claims to the title of 'Mrs. Huth,' and I hereby and herewith disown her. P. S. Huth. To Mr T. Boyes, saddler, Wadhurst." He then placed the account with the writing upon it in the unclosed envelope stamped with a halfpenny stamp which he sent by post to Mrs. Huth. The plaintiffs alleged that the words meant and were understood to mean that Mrs. Huth was not married and that the plaintiffs were illegitimate.

At the trial, Alfred Edward Manners, a butler who had been in the service of Captain and Mrs. Huth at Wadhurst for some years and continued in Mrs. Huth's service when she left her husband and went to live at Torquay, was called and said that the letter was delivered at the house at Torquay by post and that he took the account out of the envelope and read what was written upon it out of curiosity. He then placed it upon the breakfast table without comment. He knew that Mrs. Huth's maiden name was Miss Edith Greaves.

At the close of the plaintiffs' case Darling J. held that there was no evidence of publication, as the butler had no right to take the document out of the envelope, and that the words were not capable of bearing the meaning alleged, as the children were not mentioned. He therefore entered judgment for the defendant.

The plaintiffs appealed.

H A McCardie and Barrington-Ward (Marshall Hall, KC, with them), for the appellants. There was sufficient evidence of publication of the defamatory matter placed upon the account by the respondent in the fact that the butler took the account out of the envelope and read what was written upon it.

In the early stage of the law of libel there was a marked distinction between a closed up and an open letter. Letters not closed up fall into the same category as post-cards.

Thorley v Lord Kerry was an action on a libel published in a letter which the bearer, who had no authority to do so, happened to open, and that case shows that a man is responsible for the publication which has arisen through the curiosity of a person into whose hands the letter happens to pass. Belief that a third person might open it is evidence to go to the jury of intended publication: Delacroix v Thevenot; Gomersall v Davies. A letter not sealed or fastened up is analogous to a post-card, and a post-card is a publication to every one through whose hands it passes.

[LORD READING CJ. It is assumed that whatever you write on a post-card will be read.]

That shows how material curiosity is as regards the question of publication. There is no difference in principle between the case of an unclosed letter, a post-card, and a telegram, and a communication which would not be actionable if sent in a closed letter may be so if sent by telegram: Williamson v Freer, approved in Robinson v Jones. The question whether or not there has been publication is for the jury: Clutterbuck v Chaffers.

The butler had been in service with Captain and Mrs. Huth for some years and it was part of his duty to attend to the letters. That point was not dwelt upon by Darling J. The defendant knew that the document was likely to be taken out of the envelope and read and he must be responsible for it. The only obligation on the plaintiffs is to show that the words are susceptible of a defamatory meaning, and unless it would be wholly unreasonable to attribute a libellous meaning to them it should be left to the jury to say whether the publication has the meaning ascribed to it: Capital and Counties Bank v Henty; Beamish v Dairy Supply Co; Linotype Co v British Empire Type-setting Machine Co.

In the present case the gist of the libel lies in the innuendo that the children are illegitimate; and the inverted commas to the name - "Mrs. Huth" - do not imply the existence of a valid marriage.

Hohler, KC, and C Doughty, for the respondent. There is no case in which it has ever been held that there has been publication where the letter has been sent in an envelope. In the case of a post-card or telegram there is a presumption of fact the ground for which is that when a person sends a communication wholly uncovered the reasonable inference is that he contemplated that the matter would be published, but that has never been extended to anything in an envelope. Both Thorley v Lord Kerry and Gomersall v Davies were cases totally different from this. Here there is the undisputed evidence of the butler himself that he took the account out of the envelope and read what was written upon it out of curiosity. There can be no publication in those circumstances. This letter was no libel on the children, there was nothing to connect it with them. There is no proof that anything was published of and concerning the plaintiffs.

McCardie in reply. In the case of a telegram there is undoubtedly publication on the part of the sender because the words it contains must be read by the post office clerk. At the other end of the scale is the sealed envelope where it is clear that the sender has taken all possible precautions unless it can be shown that he knew that it would probably be opened. Robinson v Jones turned upon the question whether adequate precautions had been taken to prevent publication. Intermediate between the sealed letter and the telegram comes the gummed envelope. Here the sender has taken all reasonable precautions of a modern character to prevent publication. Whether there has been publication depends on a presumption of fact. If an envelope was sent with the flap cut off so that the contents are visible there would be publication, not as a matter of law but because the jury may infer as a fact that there is publication. The question is one of fact for the jury. There would be evidence of publication upon the ground that the defendant had not taken proper precautions to prevent publication to a third person, and the question for the jury would be whether the defendant had not done something from which they ought to infer publication. The decision in Delacroix v Thevenot was based upon the ground that though the defendant had taken the precaution of gumming his letter, he had not taken the precaution of putting "private" upon it, and therefore in the circumstances he had not taken reasonable precautions to prevent publication. If instead of cutting off the flap of the envelope a person leaves the flap open because he thinks that cutting it off would show too clearly that he wanted the contents to be read there would still be a question of fact for the jury whether there was publication. No jury could ignore the fact that letters with halfpenny stamps are opened by persons who would not otherwise open them. If a person writes a libel and sends it out to the world he has created a weapon of danger and perhaps of disaster, and the law places upon him the burden of taking reasonable precautions when he sends it forth that it is not published.

It is the duty of the postal authorities to see if the contents of an envelope comply with the Post Office Regulations. It is a question for the jury whether there is a probability to the knowledge of the defendant that they will be read. If there is and the contents are read it will be publication. Proper precautions must be taken when a person is sending defamatory matter, and he takes the risk of its being read. If the law were otherwise the result would be to afford a shield to libellers. [Odgers on Libel, 5th ed., p. 163, was also referred to.]

LORD READING CJ. In this case the plaintiffs, who are four infants, brought an action for libel by their next friend against the defendant, who is their father, the object of the action being, it is said, to obtain an injunction to prevent the repetition of matter which, according to the plaintiffs' case, is defamatory.
For some reason which has not been brought to the knowledge of the Court the wife of the defendant left him, and went to live at Torquay with her four children, in the house of a Miss Stark, the next friend. It is neither material nor necessary to probe into the delicate question of the relations existing between husband and wife: it is sufficient to say that evidently the defendant was extremely angry with, or wished in some way to annoy, his wife, and he sent a letter addressed to her which has given rise to this action. The letter was addressed to Mrs. Huth by her maiden name, care of Miss Stark, at the address at Torquay. Inside the letter was an account, an ordinary tradesman's bill, which had been sent by a saddler named Boyes to Mrs. Huth at Wadhurst, where Captain Huth was still living, in respect of an account for 3 8 3 which had been incurred upon orders given by Mrs. Huth. Captain Huth sent the account in an envelope addressed as I have just described, and on the account wrote the words complained of in this case. "Mrs. Huth" was struck out, and in the defendant's handwriting appear "Not known. Try Miss Edith Greaves"; that was the maiden name of Mrs. Huth. Later there appear on the same document addressed to the saddler: "The woman known as 'Mrs. Huth'" - "Mrs. Huth" was in inverted commas - "will henceforth take her maiden name of Miss Edith Greaves. Yours truly, P. S. Huth." Again on the same document was written: "The woman in question has forfeited all claims to the title of 'Mrs. Huth'" - "Mrs. Huth" was again in inverted commas - "and I hereby and herewith disown her. P. S. Huth." That account, with that writing upon it by the defendant, was enclosed in the envelope addressed to the lady in her maiden name, under cover of a halfpenny stamp, and consequently in an envelope which was neither sealed nor gummed.

When the action came before Darling J. and a jury, he withdrew the case from the jury on the grounds (1.) that there was no evidence of publication; (2.) that the words complained of were not capable of a defamatory meaning in relation to the persons who were suing; the defendants' four children and not the wife were suing, on account of the difficulties presented by the law relating to husband and wife. The complaint on behalf of the plaintiffs was that the libel alleged by way of innuendo that as Mrs. Huth had not gone through a valid marriage ceremony with Captain Huth, the plaintiffs, the four children, were illegitimate. The learned judge came to the conclusion that the words complained of were not capable of bearing a defamatory meaning with regard to the four children. The plaintiffs appealed to this Court, and we have had an able and interesting argument upon both questions. With regard to the first point it was contended on behalf of the plaintiffs that there was evidence to go to the jury that the document enclosed in the envelope had been published to some third person because, first, the butler had in fact read it, his attention having been attracted by the peculiar form of address to Mrs. Huth, as he had lived for some years with Captain and Mrs. Huth, and that he then took out the account and read the defamatory matter. The butler was called at the trial and said that he opened the letter in the sense of removing the document from inside the envelope, and read it, and that he did so because he was curious. It would be impossible successfully to contend - and it is not contended, as I understand - that if a person, in breach of his duty, were to open a letter, and there was no reason to expect that he would commit that breach of duty, the fact that he had opened it and read it would amount to publication by the person who sent it; but on behalf of the appellants it was contended that, as the document was enclosed in an unsealed and ungummed envelope, it must be assumed that the defendant knew, or ought to have known, or might have expected, that a servant in the house would open a letter in such an envelope. It was further contended that an envelope unclosed, with a halfpenny stamp on it, is always liable to be opened by the postal authorities and the document it contains examined and read, and consequently that it must be held in the present case that there was some evidence of publication to the Post Office. With regard to the first point - the alleged publication to the butler - I am clearly of opinion that there is no evidence of publication to him by the defendant merely in the fact that the butler opened and read the letter because he was curious. Fortunately, it is no part of a butler's duty to open letters which come to the house of his master or mistress addressed to them; and in this case there is nothing exceptional, save that his curiosity was excited by reason of the lady being addressed by her maiden name. It is impossible to prevent a man's curiosity being excited, but it does not justify him in opening a letter, and (which is the only matter of importance in this connection) the butler's curiosity could not make the defendant liable for the publication to him of the contents of the envelope. It must of course be borne in mind that however insulting and offensive the matter might be which the husband wrote to his wife, if it was addressed to the wife and only intended for her, and she alone saw it, no action for libel could be brought by her: an action for libel can only be brought if there is publication to some third person. In my judgment there was no evidence of publication to the butler.

Mr McCardie has strenuously and very ingeniously raised a further point on behalf of the appellants with regard to the Post Office, and I think that the broad general proposition he has submitted requires examination with some care. I should certainly be very sorry to lay down any proposition of law which would enable libels to be published with greater safety than has hitherto been the case. Mr McCardie based his proposition upon the ground that there is a presumption of fact that the contents of a post-card sent through the post have been published to some third person, and consequently the mere proof that the post-card was written by the defendant, and posted by him, is in itself held to be some evidence that the defendant published the writing on the post-card. That doctrine is founded upon very clear grounds rather of fact than of law. It has been laid down - I think rightly - that the Court will take judicial notice of the nature of the document, i.e., that it is a post-card, and will presume, in the absence of evidence to the contrary, that others besides the person to whom it is addressed will read and have in fact read what is written thereon. That is the presumption of fact which arises as a matter of law. If, even in such a case as that, the defendant could establish that the postcard never was read by a single person - although it is very difficult to conceive that the proof could be given - he would, notwithstanding the presumption, succeed in the action, because he would have proved that there was no publication. The fact that it is practically impossible to prove that any third person read it is the reason why the law takes judicial notice of the nature of the document, and says that the mere fact that the words are written on a post-card which is posted must be taken as some evidence that a third person will read it, or has read it. That is clear law and is quite beyond dispute. Mr McCardie contends that if that is so with regard to a post-card, the same presumption must be made with regard to an unsealed and ungummed letter; in other words that a document circulated with a cover must be treated just as would be one without a cover. The question is whether that contention is sound. He has referred us to several authorities which require to be very shortly examined. With regard to Thorley v Lord Kerry, which came before Sir James Mansfield C.J. in the year 1812, the point was not taken. The matter came before the Court on a writ of error. It appears that Lord Kerry had written a letter which he had delivered unsealed to his servant to carry. One does not wonder that the point that that was no evidence of publication to the servant was not taken, for the period was long before the days of post-cards, or of a halfpenny post in unsealed or ungummed envelopes. It was further contended that in Delacroix v Thevenot there was a similar statement of the law, although under different circumstances. Lord Ellenborough there held that inasmuch as the letter, which was not marked "private," was sent to the address of the plaintiff, and the clerk there was in the habit of opening letters directed to the plaintiff which were not marked "private," and the clerk opened the letter, there was evidence of publication to the clerk. It is to be observed that in that case the clerk said he opened the letter, and that he believed that the defendant knew that he was in the habit of opening the plaintiff's letters and therefore it was proved that there was publication to him.

Our attention was also directed to the judgment of Palles CB in Robinson v Jones. It does not carry the matter any further. It deals with a question of privilege and only restates the law with regard to post-cards. Gomersall v Davies, which came before the Court of Appeal, was also referred to. In that case a letter was sent to the plaintiff by the defendant and was opened by the clerk of the addressee, the plaintiff, in the ordinary course of business. It was held that there was evidence of publication to go to the jury immediately it was proved that the clerk opened the letter in the ordinary course of his duty, and read it. Questions were left by the judge to the jury, who answered them in favour of the plaintiff, and the Court of Appeal were of opinion that the questions were rightly left to the jury because on the facts there was evidence that, to the defendant's knowledge, letters addressed to the plaintiff and received in the ordinary course of business would be likely to be opened by persons in the plaintiff's employment. It is to be observed that the distinction between the position of the clerk in that case and that of the butler in the present case is that the clerk opened the letter in the ordinary course of his business, while the butler opened it in breach of his duty, outside the ordinary course of his business.

It appears to me - having given consideration to all the authorities to which our attention has been called - that there is no such presumption as was contended for by Mr McCardie with regard to letters which are unclosed. It is not right, in my view, to treat a letter sent in an envelope with a halfpenny stamp and ungummed as though it were an open letter. Before the document can be abstracted from the envelope and read, there must be some act by the person who has it in his hands in the nature of opening the letter which is ungummed, and I do not think that the Court can presume that letters would be opened in the ordinary course of business, or that they might be opened if sent in this fashion. It is quite true that the Post Office authorities have the right to examine the document which is in the envelope with the halfpenny stamp upon it. It is part of the duty of the Post Office authorities to see that that which is sent under cove of a halfpenny stamp is matter which can properly be sent for halfpenny and that it does not require a penny stamp. But the is not sufficient for the success of the appellants in this case If they could have called a postman, or a postmaster, or some official who would have said "Yes, I examined this document and read it in order to see whether it could properly go through the post under a halfpenny stamp," then would arise a state of things which I think would amount to evidence of publication by the defendant. But that is where the appellants fail. No such person can be called. I cannot think that the Court is entitled to presume, merely because the letter went through the post, that it would be opened. I suppose that what is said with regard to letters with a halfpenny stamp upon the envelope is true of every package and parcel which is sent through the Post Office, and in certain circumstances it may be true also of other documents even though they may be sealed. But that does not justify the presumption that a letter in an envelope which is ungummed is to be treated just as a post-card. I think that that point fails, and that there is, therefore, no evidence of publication in this case.
Upon the point as to whether the words are capable of a defamatory meaning I do not propose to express any opinion. It is sufficient to dispose of this case by holding that there was no evidence of publication. Of that I am satisfied, and therefore the appeal must be dismissed.

SWINFEN EADY L.J. This action is one of an unusual character, being an action by infant children against their father for libel. It claims damages and an injunction, and the object of the action is to stop the defendant's wife being annoyed and distressed by documents, alleged to contain statements defamatory of the plaintiffs, being sent to her through the post. In form it is an action by the children, and that form was necessary by reason of the wife being unable to bring an action of this kind against her husband. The substance of it is to protect the wife against a further incursion of these documents.

The learned judge at the trial held that there was no evidence of publication, and it is that point which is first raised on this appeal. The document in question was enclosed in an envelope, but the envelope was not sealed or fastened with any adhesive matter, or otherwise, and it was sent through the post with a halfpenny stamp upon it. The alleged publication was that the butler, on receipt of the letter through the post, opened the envelope, perused the enclosure, and, having replaced it in the envelope, placed it without comment on the dining-room table for his mistress. The mistress was in the house and was living there at the time. It is not suggested that the butler had any duty in connection with the letter except to put it unopened on the table. The butler was called at the trial and said, on being pressed, that he opened it from curiosity to see what the enclosure was. It was therefore opened and perused by the butler in breach of his duty. In my judgment the question of publication can shortly be disposed of in this way. There was no evidence of publication because there was no evidence that, to the defendant's knowledge, a letter addressed to his wife and enclosed in this envelope - but unsealed and unstuck down - would, in the ordinary course, be likely to be opened by the butler or by any other person in the employ of the mistress, or at the mistress's house, before it was delivered to her.

When the authorities which were referred to are considered it will be seen that, in each of those cases, the defendant - who must be dealt with upon the footing that he intended the natural consequences of his act in the circumstances of the case - intended the publication which in fact took place. In Delacroix v Thevenot, where the libel was contained in a letter and the letter was opened by a clerk, the evidence was not only that the clerk was in the habit of opening letters directed to his master which were not marked private, but that the defendant, who was acquainted with the plaintiff, was aware of the nature of the clerk's employment. Lord Ellenborough said that in those circumstances there was sufficient evidence for the jury to consider whether the defendant did not intend the letter to go into the hands of a third person, which would be a publication. It must be borne in mind, in connection with a publication of this sort, that it is immaterial whether the letter is sealed or unsealed, because if a person sends a letter, although carefully sealed, to, say, a merchant at his office, knowing that the merchant has a staff of clerks who in the ordinary course of business open all letters sent to the merchant's office, that would be clearly a publication if the letter were opened and perused by a clerk in that way, even although that letter were most carefully sealed. Again, in Gomersall v Davies the question raised on appeal was whether there was evidence of the publication of the libel. What had happened was that the plaintiff was a man engaged in the business of a game and poultry salesman, and evidence was given that in the ordinary course letters addressed to him would be opened by his clerk or foreman, and brought to him in the market, and A L Smith LJ dealt with it on appeal in this way, the question being whether there was evidence of publication; he said: "The jury, in answer to questions put to them, found that the plaintiff's business was such that, to the defendant's knowledge, letters addressed to the plaintiff, and received in the ordinary course of business, would be likely to be opened by persons in the plaintiff's employ. In the face of that finding, how could it be said that this was an accidental publication?" In each of those cases, therefore, there was evidence from which publication could be established by the fact that it was published in the way that the defendant must have been presumed to have intended it. Evidence of that sort is entirely wanting in the present case.

On behalf of the appellants Mr McCardie urged that a letter enclosed in an unclosed wrapper or envelope must be treated as being on the same footing as a post-card, or a telegram. I am quite unable to accede to that view. With regard to a postcard and a telegram, it was said by A L Smith MR in Sadgrove v Hole that "It is certainly my opinion that if a man writes a libel on the back of a post-card and then sends it through the post there is evidence of publication, as in the case of a telegram. The cases cited show that the two stand on the same footing"; but that is wholly different from a case where a communication is enclosed in a cover, and is not, without some unauthorized act, withdrawn from the cover and perused. If the plaintiffs had been able to establish that the perusal of this - communication was in the ordinary course by a person in the discharge of his duty, the case would have been different, as, for instance, if they were able to show that it was withdrawn and perused by a Post Office official. By the Post Office Regulations there are certain things which are prohibited from being sent through the post at all. There are other things which the public have a privilege of sending under a halfpenny stamp, but they are a limited class of things, and if the article, say a communication in the nature of a letter, is sent in this way, it is liable to be surcharged, and, in order to protect the Post Office, the Post Office officials have certain statutory powers. In the General Post Office Rules contained in the Post Office Guide for January to March, 1915, at pp. 17 and 18 under the heading "Prohibited Articles," it is stated that it is provided by the Inland Post .Warrant of 1903 that certain articles shall not be posted, or conveyed, or delivered by post, and if they are, in breach of this regulation, tendered for transmission, transmission will be refused, or if they are detected in transit, they will be detained, and they are liable to be dealt with in such manner as the Postmaster-General may direct, and the sender is liable, in some cases, to prosecution. Although, therefore, persons in the employ of the Postmaster-General in the discharge of their duty may have to peruse and examine postal communications, and although a publication of a libel in that way would be established if perusal took place, there is no inference of fact or law to be drawn that, in all cases, communications of this sort are opened and read by the Post Office officials.

In these circumstances I am of opinion that in the present case there was no evidence of publication to go to the jury and the learned judge was right in the view that he took, and the appeal on this point fails. That being so, it is not necessary to consider the other portion of the case.

BRAY J. I am of the same opinion. At the trial the learned judge withdrew the case from the jury on two grounds - first, that there was no evidence of publication by the defendant, and secondly, that the words were not capable of being read in a defamatory sense.

As to the first ground, the facts are not in dispute. The writing was placed in an envelope which was not closed or sealed, it was posted, and arrived in the ordinary course of post at the house where Mrs. Huth resided, and was opened and read by the butler, and the first contention of the plaintiffs was that that constituted a publication by the defendant. It was a publication, but the question is whether it was a publication by the defendant, or one for which he was responsible. It appears quite clearly from the butler's evidence that he knew perfectly well that although the envelope was addressed to "Miss Edith Greaves," it was intended for his mistress, Mrs. Huth. Also there was nothing which entitled him, in the ordinary course of his duty, to open the envelope. He admitted that he did so from curiosity. There can be no doubt, in those circumstances, that the opening of the envelope, and the reading of its contents, was a wrongful act by the butler. In my opinion it is quite clear that, in the absence of some special circumstances, a defendant cannot be responsible for a publication which was the wrongful act of a third person. He cannot be said, except in special circumstances, to have contemplated it. It was not the natural consequence of his sending the letter, or writing, in the way in which he did. There are no special circumstances in the present case, and therefore, in my opinion, the publication, such as there was, to the butler was not a publication by the defendant, or a publication for which he could be made responsible.

It was also contended that the fact that the document was in an envelope unclosed was in itself some evidence from which a jury would be at liberty to infer that it was in fact published. But the only evidence that can be suggested is that a presumption of fact arises from the letter being sent in that way. What is a presumption of fact? A presumption of fact is one which arises from the high degree of probability of the existence of the fact. A familiar instance is where a man is charged with larceny, and is found in recent possession of the stolen goods. In that case there is a presumption of fact which affords evidence that the prisoner did in fact steal them, arising from the high degree of probability, which exists from his recent possession, that he did in fact steal them. Can there be such a presumption of fact in the present case? It is not analogous to a post-card or a telegram. A distinct act of taking its contents out of the envelope was required. Was there any presumption of fact - was there any high degree of probability - that that would occur in the course of transmission from the defendant through the post to Mrs. Huth? In my opinion there was not. It is said that the Postmaster-General, or those deputed by him, have the right to open the envelope and read its contents in order to see if they are in accordance with the Post Office Regulations. I assume that. I have no doubt that it is so. But ought that to induce us to say that there is a high degree of probability that it would be so opened? On the contrary, it is the barest possibility, and the barest possibility will not do. In my opinion there is no such presumption of fact, and there being no evidence which would justify the jury in saying that the defendant was responsible for the publication to the butler, the learned judge was right in withdrawing the case on that point from the jury.

As to the other point I do not desire to say anything, but it must not be understood that I therefore am dissenting in any way from the learned judge's judgment.

Appeal dismissed. (1)

Solicitors for appellants: Calder, Woods Pethick, for Urry, Woods Pethick, Ventnor.
Solicitors for respondent: G. F. Hudson, Matthews Co., for Ragau Martin Frend, Tunbridge Wells.

(1) NOTE. - For reasons which are not material to the report no point was taken on behalf of the appellants as to whether an action would lie against the respondent in respect of the written address upon the envelope.

Cases referred to:

Beamish v Dairy Supply Co. (1897) 13 Times LR 484.
Capital and Counties Bank v Henty (1882) 7 App Cas 741.
Clutterbuck v Chaffers (1816) 1 Stark 471.
Delacroix v Thevenot (1817) 2 Stark 63.
Gomersall v Davies (1898) 14 Times LR 430.
Linotype Co v British Empire Type-setting Machine Co (1899) 81 LT 331.
Robinson v Jones (1879) 4 LR Ir 391.
Sadgrove v Hole [1901] 2 KB 1, at p 4.
Thorley v Lord Kerry (1812) 4 Taunt 355.
Williamson v Freer (1874) LR 9 CP 393.