The objections to the maintenance of this action rest upon two grounds; first, that the matter itself is not libellous ; and secondly, that it was a publication, made in the course and in the discharge of a public duty, required by the statutes of the Commonwealth, for the use of the town, and ultimately of the legislature itself, and so far under the protection of the law, that for it no action can be maintained, except an action on the case, alleging not only falsity and malice, but want of probable cause.
The declaration sets forth extracts from the report, the meaning and force of which cannot be fully understood when separated from their context; yet upon the face of the declaration it is difficult to see any libellous matter. It is not contended, that the words set out charge the plaintiff with the commission of any crime; nor is this necessary. Nor do they charge him with immoral conduct, or impute to him unjust or corrupt motives in his official action, or hold him out as a dishonest man, or blacken his reputation, or expose him to public hatred, contempt or ridicule.
Reading the extracts set out in the declaration, in their connection with the other portions of the report, annexed to the defendant’s answer, and made part of the case, taking the whole publication together, the question is free from difficulty. The plaintiff is spoken of only in the conduct of his office, and in this regard there is no imputation of corrupt or improper motives. So far as the plaintiff is implicated in the transactions narrated, or the comments upon them, the most that can be said is, that in the view of the committee he had very mistaken conceptions *546of his legal duty, and adhered to and acted upon them with great pertinacity.
As we are all of opinion that the action must fail upon this ground, it has not been necessary to determine the extent of privilege, unquestionably large, to which this class of publications is in law entitled.
It was suggested in the closing argument of the plaintiff’s counsel that the question of libel or no libel should have been sent to the jury. This question does not appear to have been made at the trial, or reserved in the report. The recent practice in England, in civil as well as criminal cases, seems to be to leave to the jury the question whether the matter is libellous or not. In the case of Baylis v. Lawrence, 11 Ad. & El. 920, it was held no misdirection in Lord Abinger to have said to the jury, “ I own I find a difficulty in saying whether it is a libel or not. Gentlemen, can you assist me ? ” without defining what constituted a libel, and without any other direction upon that issue.
Yet it is clear that upon a demurrer, or an answer in the nature of one, the court must determine whether a cause of action is set out in the declaration, to be sent to the jury. And if the judge presiding at the trial, and the jury, should think the publication libellous, still, if on the record it appear to be not so, judgment must be arrested. And so the law is distinctly laid down in Baylis v. Lawrence. The true distinction proba bly is, that though the court will, upon proper motion or plea ol the defendant, judge whether the publication, as set out, constitutes a ground of action or not, yet, if such demurrer or motion is overruled, and the cause goes to the jury, the judge is to define what is a libel, and leave to the jury to determine whether the publication falls within the definition of the offence. See Parmiter v. Coupland, 6 M. & W. 105.
These suggestions may possibly reconcile expressions in the text books and in the reports apparently conflicting.
Judgment for the defendants.