THE LAW OF LIBEL AND SLANDER THE EVIDENCE, PROCEDURE, AND PRACTICE, BOTH IN CIVIL AND CRIMINAL CASUS, AND PRECEDENTS OF PLEADINGS, "WITH A CHAPTER ON THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. BY W. BLAKE ODGERS, M.A, LL.D. LATE SCHOLAR AND LAW STUDENT OF TRINITY HALL, CAMBRIDGE, OP THE MIDDLE TEMPLE AND THE WESTERN CIRCUIT. BARRISTER- AT-LAW. FROM THE SECOND ENGLISH EDITION. "DEAD SCANDALS FORM GOOD SUBJECTS FOE DISSECT/ OX."-Brv.ox NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1891 Entered according to the Act of Congress, in the year 1887, By THE BLACKSTONE PUBLISHING COMPANY, In the Office of the Librarian of Congress, at Washington, D. 0. C \'2\~^v (2) TO ARTHUR CHARLES, Esq., Q.C RECORDER OF BATH, IN A CKKOIVLEDGMFNT OF MANY KINDNESSES, % JJjcxticatc this ^ocrTi. (3) PREFACE TO THE SECOND EDITION. The law relating to Libel and Slander has undergone considerable modification since the First Edition of this Book was published in February, 1881. In August, 1881, the Newspaper Libel and Registration Act became law ; two years later the general practice of the High Court was altered in many respects by the Rules of the Supreme Court, 1883 ; while in the Chancery Division a prac- tice has sprung up of granting injunctions in cases of libel and slander, which is not in accordance with the former procedure. Two new Chapters have, therefore, been added in this Edition — one on the Act of 1881, the other on Injunctions ; while the Chap- ters on Costs and Practice in Civil Cases have been much modified. The Chapter on Blasphemous Words has been entirely re-written, and by the kind permission of Lord Coleridge, C.J., I am enabled to add in an Appendix [* vi.] the revised Edition of his Lordship's summing up in the case of H. v. Ramsey and Foote. All decisions reported since 1881 have been noted down to the date of publication, and the whole Book carefully revised. W. B. O. 4, Elm Court Temple, E.C., June, 1887. (5) PREFACE TO THE FIE ST EDITION, Tins book has been called " A Digest of the Law of Libel and Slander," because an attempt has been made to state the law on each point in the form of an abstract proposition, citing the decided cases in smaller type merely as illustrations of that abstract pro- position. Every reported case decided in England or Ireland during the last fifteen years has been noticed. Every case reported in England during this century has, I believe, been considered and mentioned, unless it has either been distinctly overruled or has become obsolete by a change in the practice of the Courts or by the repeal of some statute on which it depended. The earlier cases have been more sparingly cited, but I think no case of importance since 1558 has been overlooked. The leading American decisions have also been referred to, and whenever the American law differs from our own the distinction has been pointed out and explained. Canadian and Australian decisions have also been quoted, whenever the English law was doubtful or silent on the point. The cases have been brought down to the early part of January, 1881. It would be of but little use to place all these decisions before the reader and leave him to draw his own conclusions. A huge collection of reported cases piled one on the top of the other is not a legal treatise, any more than a tumbled pile of bricks is a house. I have throughout attempted to strike a balance, as it were, and state the net result of the authorities. But this is a process requir- ing the greatest care and much expenditure of time. When I com- menced this book in 1876, I did not at all realize the amount of labor which was requisite in order to ascertain the law and state it clearly in an abstract form. [* vii.J It is often very difficult to determine whether or no a decision has ceased to be a binding authority : our judges in the present day seldom expressly overrule a previous decision ; they comment on it, (7) Vlll PREFACE TO THE FIRST EDITION. distinguish it, explain it away, and then leave it with its lustre tar- nished, but still apparently a binding authority should identically the same facts rerur. There is no rule which decides how long the process of " blowing upon" a case must continue before it may be considered overruled. Whenever such a case has been cited, I have always referred the reader to the places where it has been criticised, adding, however, my own opinion as to the effect of such criticism on the authority of the case. And in many places it has been necessary to review the cases in a note, showing how they bear one on another, and justifying the view which I have taken of their result. Such notes are printed in a medium type, smaller than that devoted to the abstract propositions of the Digest, larger than the Illustrations which follow them. My object throughout has been to save the reader trouble. All the references to every decision have always been cited. All con- siderations of style, &c, have been -sacrificed to clearness and con- venience. I have abruptly changed from the third to the first or second person, whenever there was any possibility of mistaking the antecedent, of any pronoun. It is sometimes difficult to follow A., B., and C, through a long sentence : it is easier to distinguish between " I," " you," and " he." Again, whenever I have been in doubt whether the law on a particular subject should be noticed in one chapter or in another, I have invariably stated it in both. Thus, nearly the whole of the chapter on Malice will be found scat- tered up and down the long chapter on Privilege. So, too, for the sake of practical convenience, all the cases as to the Innuendo and the construction to be put on Defamatory Words, have been col- lected in Chapter III. In Chapter XIV. all the law as to Husband and Wife, Principal and Agent, &c, &c, has been gathered together under the somewhat stilted but convenient title of The Law of Persons. A separate chapter has been devoted to the sub- ject of Costs. In the chapters on Blasphemous and Seditious Words, I have not hesitated to express freely my conviction that many of the early decisions would not be followed in the present day. One difficulty connected with the subject matter of the book I [*ix.] have endeavored to avoid, by restoring the word "malice" to its simple and ordinary meaning. The distinction between " malice in law " and " malice in fact " is of comparatively recent origin. " Malice in law " is the vaguest possible phrase ; it merely denotes "absence of legal excuse." The plaintiff is never called on to prove the existence of" "malice in law ; " the defendant has to show the existence of some legal excuse. In short, to say that (8) PREFACE TO THE FIRST EDITION". IX a libel must be published " maliciously," means merely that it must be published "on an unprivileged .occasion." I have therefore abandoned this technical and fictitious use of the word. Through- out this book (to use the words of Brett, L.J., in Clark v. Molyneux, see p. 271) "'Malice' does not mean 'malice in law,' a term in pleading, but actual malice, that which is popularly called malice." The second part of the book is devoted to Practice, Procedure, and Evidence. I have fought both a civil action and a criminal trial through from beginning to end, giving practical hints to each side. Indeed, I have taken up the subject at an earlier point than is usual in law books, and have submitted to the plaintiff certain matters which he should carefully consider before he issues his writ (p. 513). - In the Appendix will be found a full collection of Precedents of Pleadings, both in Civil and Criminal cases. Some are drawn from the reports ; others are hypothetical cases of my own invention ; but the majority are pleadings in actions in which friends of mine, or I myself, have been professionally engaged. W. Blake Odgers. 5, Hare Court, Temple, EC, February, 1881. (9) TABLE OF CONTENTS. *#* The figures refer to the * pages between brackets [*]. TABLE OF CASES .... TABLE OF STATUTES CITED . TABLE OF RULES AND ORDERS CITED PAGE xxi — lxvii lxviii — lxx Ixxi — lxxii PART I. A DIGEST OF THE LAW OF LIBEL AND SLANDER. CHAPTER I. INTRODUCTORY . Definitions ...... Distinction between Libel and Slander Motive Immaterial, save on the Question of Damages . Criminal Remedy for Libel ..... ' ' Liberty of the Press " defined History of the Censorship of the Press Acts injurious to Reputation .... CHAPTER II. DEFAMATORY WORDS Definitions . . . . . Injury to the Reputation the gist of the Action PART I.— LIBEL. Libel Defined ...... Libels on Persons in Office ..... Libels on Professional Men .... Libels on Traders ...... Libels on Traders' Goods .... Fair and bond fide Comment on Matters of Public Interest Criticism defined and distinguished from Defamation . Assertion of Facts no comment .... Malicious and Unfair Attacks .... What are matters of Public Interest Affairs of State ...... (11) 1—16 . 1 2—7 . 3 7 10 ib. 13 17—92 . . 17 . 18 19 25 27 . 29 • 30 32 33 35 . 38 40 42 xii TABLE OF CONTEXTS. (The paging refers to the [*] pages.) PAGE Administration of Justice . . . . . .44 Public Institutions and Local Authorities . . . 46 Ecclesiastical Affairs . . . . . . .47 Books, Pictures, &c. . . . . . 48 Theatres, Concerts, and other Public Entertainments . . .49 Other Appeals to the Public . . . . 50 PART II.— SLANDER. I. Words imputing an Indictable Offence .... 53 Words of Suspicion only . . . . 57 Early Cases on this Subject . . . . .59 The Crime imputed must be possible . . . 03 II. Words imputing a Contagious Disease . . . .04 III. Words spoken of the Plaintiff in the way of his Office, Profession or Trade . . . . . . . . 65 Such Words must affect him in such Office, Profession or Trade 07 Imputation of Professional Ignorance or Unskilfulness . . 70 Words imputing Want of Integrity to any one holding an Office of Trust . . , . . . . . 71 Words concerning Clergymen . . . . .73 Words concerning Barristers, Solicitors, &c. . 75 Words concerning Physicians and Surgeons . . .77 Words affecting Traders in the way of their Trade . 79 Imputations of Insolvency . . . . . .80 Imputations of Dishonesty in the Conduct of their Trade . . 81 IV.' Words Actionable only by reason of Special Damage . . 83 Words imputing Immorality . . . . 85 Unsatisfactory State of the Law on this point . . .87 All words causing Special Damage are Actionable . 89 CHAPTER III. CONSTRUCTION AND CERTAINTf .... 93—133 What Meaning the Speaker* intended to convey is immaterial Libel or no Libel is a question for the Jury Duty of the Judge ...... Words not to be construed in mitiori sensu Jury to consider the Words as a whole Of the Innuendo ...... Plaintiff bound by his Innuendo .... 1. Words obviously Defamatory . 2 Words prima facie Defamatory 3. Neutral Words ..... 4. Words prima facie Innocent 5. Words clearly Innocent .... Certainty. Early Technicalities Certainty of the Imputation .... Charges of Crime ..... (12) 93 94 ib. 95 98 99 101 104 100 109 112 116 118 120 121 TABLE OF CONTENTS. xiii (The paging refers to the [*] pages.) PAGE Indirect Imputations and Insinuations . . . . 125 Certainty as to Person Defamed .... 127 CHAPTER IV. SC AND ALUM MAGNATUM 134—137 Statutes . . . . . . . . 134 What Words are included therein . . . . 136 CHAPTER V. SLANDER OF TITL3, OR WORDS CONCERNING THINGS 138—150 Definition ......... 138 I. Slander of Title proper . . . . . . ib. Proof of Malice . . . . . . . . 142 II. Slander of Goods Manufactured or Sold by another . . 147 CHAPTER VI. PUBLICATION . 151—169 151 153 154 156 158 161 162 163 166 167 Definition of ..... Husband and Wife .... Plaintiff must Prove a Publication by the Defendant in fact Publication per alivm .... Publication in a Newspaper Unconscious Publication Repetition of a Slander .... Naming your Authority now no Defence .. Defendant not liable if others repeat his Slander . Exceptions to this Rule CHAPTER VII. JUSTIFICATION . . • 170-180 Onus of Proving Words true is on the Defendant . . " . 170 The whole Libel must be Proved true ■ . . . ib. The. Rule applies to all Reported Speeches or Repetitions of Slander 174 Justification must be Specially Pleaded . . . . . 177 True Charge made Maliciously ..... 178 CHAPTER VIII. PRIVILEGED OCCASIONS 181-268 Defence that Words were spoken on a Privileged Occasion . .181 The Judge to Decide whether Occasion is Privileged or not . 183 PART I. OCCASIONS ABSOLUTELY PRIVILEGED . . . 184—196 (i) Parliamentary Proceedings ..... 185 (ii) Judicial Proceedings . . . . . . ' . 187 Words Spoken by a Judge . . . . . ib. (13) xiv TABLE OF CO STENTS. (The paging refers to the [*] pages.) PAGE Words Spoken by a Counsel . . . . 189 Words Spoken by a Witness ..... 190 (iii) Naval and Military Affairs . . . . . 194 PART II. QUALIFIED PRIVILEGE 197—268 Cases of Qualified Privilege classified . . . . 197 I. Where circumstances cast upon the Defendant the duty of making a Communication. A. Communications made in pursuance of a Duty owed to Socu ty . 199 Duty may be Moral or Social . . . . . ib. (i) Characters of Servants ..... 201 (ii) Other Confidential Communications of a Private Nature. (a) Answers to Confidential Inquiries . . . 204 (b) Confidential Communications not in answer to a pre- vious Inquiry ... . 208 (c) Communications made in Discharge of a duty arising from a Confidential Relationship . . . 210 (d) Information volunteered when there is no Confiden- tial Relationship . . . . 213 Difficulty of the Question . . . .214 Provinces of Judge and Jury . . . 216 (iii) Information as to Crime or Misconduct of others . 221 Charges against Public Officials . . . . 225 Persons applied to must have some Jurisdiction to enter- tain Complaint . . . . . 227 B. Communications made in Self-Defence. (iv) Statements necessary to protect Defendant's private Interests 229 (v) Statements provoked by a previous attack by Plaintiff on Defendant . . . . . . . 232 Statements invited by the Plaintiff . .. . 234 II. Where the Defendant has an Interest in the Subject- matter of the Communication, and the Person to whom the Communication is made, has a Correspond- ing Interest ...... Where a large Body of persons are interested If Strangers present, the Privilege will be lost III. Privileged Reports ..... (i) Report of Judicial Proceedings Matters co ram nonjudice .... Reports not privileged .... Reports must be accurate . Reporting part only of a trial No comments should be interpolated An accurate Report may still be malicious (ii) Reports of Parliamentary Proceedings (iii) Other Reports . . ... Public Meetings ..... (14) 238 243 245 248 ib. 249 253 255 258 259 261 264 266 TABLE OF CONTENTS. (The paging refers to the [*] pages.) CHAPTER IX. MALICE Intention of Defendant as a rule immaterial Material when the Occasion is one of Qualified Privilege Malice defined ..... Mere Mistake never evidence of Malice . 269 I. II. Extrinsic Evidence of Malice . . . . . Former publications by Defendant of Plaintiff That the Words are false is alone no evidence of Malice Evidence of Malice derived from the Mode and Extent of Publi- cation, the Terms employed, &c. . . . . (i) Where the Expressions employed are exaggerated and unwarrantable . (ii) Where the Mode and Extent of Publication is Excessive PAGE -290 269 270 271 273 275 276 278 281 283 286 CHAPTER X. DAMAGES General and Special Damage defined and distinguished I. 291— General Damages ...... Different kinds of General Damages II. Special Damage wht re the words are not actionable per se What constitutes Special Damage .... Special Damage must be specially pleaded Loss of Custom ...... Special Damage subsequently arising III. Special Damage where the words are actionable per se IV. Evidence for the Plain tiff in Aggravation of Damages Other Libels and Slanders ..... Plaintiff's Good Character .... V. Evidence for the Defendant in Mitigation of Damages (i) Evidence falling short of a Justification (ii) Previous Publications by Others (iii) Liability of Others .... (iv) Absence of Malice .... (v) Evidence of Plaintiff's Bad Character (vi) Absence of Special Damage (vii) Apology and Amends .... VI. Remoteness of Damages ..... Damage must be the direct result of Defendant's Words Damage caused by the act of a Third Party Not essential that such Third Person should believe the Charge Third Person compelled to repeat Defendant's Words Damage caused by a repetition of a Slander Husband and Wife ...... Damage must have accrued to Plaintiff himself (15) 336 291 293 294 297 ib. ib. 303 306 ib. 309 310 ib. 312 ib. 313 315 317 320 322 ib. 325 326 328 329 330 331 xvi TABLE OF CONTENTS. (The paging refers to the [*] pages ) PAGE CHAPTER XI. INJUNCTIONS 337—364 I. Injunctions to restrain or prevent Contempt of Court . . 337 forbidding Reports of Judicial Proceedings . 339 II. Injunctions granted after Verdict or at the Final Hearing . 340 III. Injunctions granted on Interlocutory Application . . 342 Restraining the Publication of Private Letters . . . 347 Rival Patentees- . . . . . .348 Power to grant such Injunctions Questioned . . . 3j1 Power of the Court not increased by the Judicature Act . 359 CHAPTER XII. COSTS . . 305—373 305 366 ib. 368 369 370 371 372 ib. ib. 373 Costs now follow the Event, unless otherwise ordered All early Statutes as to Costs repealed by Judicature Act Application to deprive successful Plaintiff of Costs , Special Costs ....... Costs of Issues ...... Costs after Payment into Court ..... Costs of Counterclaim ..... Costs of Remitted Action . Costs of former Trial ...... Costs as between Husband and Wife .... Costs of Public Bodies . . . . ■ CHAPTER XIII. THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. 374—393 Sections ......... 375 Definitions ........ 376 Reports of Public Meetings Privileged . . . . 377 Prosecution of Newspapers for Libel .... 383 Registration of Name of Proprietor . . . . 387 Fees on Making Return . . . . • .391 CHAPTER XIV. THE LAW OF PERSONS IN BOTH CIVIL AND CRIMINAL CASES 394—421 1. Husband and Wife . . . . ■ .394 Claim by Husband for Words defamatory of Wife . ib. Married Woman Plaintiff , . . . . 395 Liability of Husband for Wife's words . . . 400 Married Woman Defendant . . . 401 Criminal Liability of a Married Woman . . . 404 2. Infants . . . . . . . . . 405 3. Lunatics ......"■ 408 (16) TABLE OF CONTENTS. (The paging refers to the [*] pages.) 4. Bankrupts . . 5. Receivers . ■ . (i. Executors and Administrators 7. Aliens ...... 8. Master and Servant— Principal and Agent Master's Commands no Defence Principal liable for Words spoken by his Authority Ratification ..... Criminal Liability of Master or Principal 9. Corporations and Companies 10. Partners ...... 11. Other Joint Plaintiffs .... 12. Joint Defendants ..... TAOE ib. 407 ib. 408 409 410 411 412 413 415 417 419 420 CHAPTER XV. CRIMINAL LAW Criminal Remedy by Indictment . Special Intent, when necessary Misdemeanours at Common Law . Misdemeanours by Statute .... Criminal Remedy by Information Publication of a Libel by one unconscious of its Contents Criminal Liability of an employer Privilege and Malice ..... Justification not permitted at Common Law Justification under Lord Campbell's Act 422- -439 422 423 425 426 ,427 432 433 436 437 ib. CHAPTER XVI. BLASPHEMOUS WORDS . Blasphemous Words defined . . . Intent to bring Religion into Contempt Honest Advocacy of Heretical Opinions Distinction between Heresy and Blasphemy Heresy defined ...... Jurisdiction of Ecclesiastical Courts Blasphemy as a Secular Offence .... I. View taken in the Seventeenth Century Christianity part of the Common Law of England II. View taken in the Eighteenth Century Words striking at " the very root of Christianity " . III. View taken by some Judges in the Nineteenth Century Unitarianism no Crime .... Conflict of opinion on other points Statutory provisions ..... Suggested Reforms of this branch of the Law of Libel B. Lib. & Slan. (17) 440—470> . 440 . 441 . 442 . 446 . 447 . 448 . 450 . ib. . 452 . 454 . 456 . 458 ■ . 460 . 463 . 464 . 467 xviii TABLE OF CONTENTS. (The paging refers to t lie [*] pages.) CHAPTER XVII. PAGE OBSCENE WORDS 471—47.5 Test of Obscenity . . . . . . .471 Summary Proceedings under 2Q cfc 21 Viet. c. 83 . . . 472 CHAPTER XVIII. SEDITIOUS WORDS 476-512 Seditious Words denned ...... 47<> Treasonable Words . . . . . . . 477 Words Defamatory of the Sovereign himself . . . 479 Truth no Defence . . . . . . . 481 Words Defamatory of the King's Ministers and Government . . ib. Attacks by Political Opponents . . . . . 484 Words Defamatory of the Constitution .... 485 Latitude allowed to Political Writers . . . . . 487 Words Defamatory of either House of Parliament . . . 488 Commitment for Contempt . . . . . . ib. Colonial 'Legislative bodies ...... 491 Words Defamatory of the Supreme Court of Justice . . . 492 Contempt of Court ....... 493 Wilful Disobedience to an Order of Court . . . . 498 Attachment and Committal ...... 499 Colonial Courts of Justice . . . . . . 503 Words Defamatory of Inferior Courts of Justice . . . 504 Contempt of an Inferior Court of Record . . . . • 50G Sureties for Good Behaviour ...... 508 Statutory Powers of Inferior Courts . . . . 509 Ecclesiastical Courts . . . . . . .512 PAET II. PRACTICE, PROCEDURE, AND EVIDENCE. CHAPTER XIX. PRACTICE AND EVIDENCE IN CIVIL CASES . . 513—588 Considerations before Writ . . . . . .513 Parties . . . . . . . . 515 Letter before Action . . . . . 517 Notice of Action . . . . . . . 518 Jurisdiction ........ ib. Choice of Court . . . . . . . . 519 Statute of Limitations . . . . . . . 52 • Former Proceedings . . . . . . 521 Joinder of Causes of Action ...... 523 Endorsement on Writ . . . . . . ib. (18) TABLE OF CONTENTS. (The paging refers to the [*] pages ) Matters to be considered by the Defendant Remitting the Action to the County Court Statement of Claim Instructions for Defence Amendment Particulars Defence . Traverses Objections on points of law- Privilege Justification Other special Defences Payment into Court Apology Counterclaim Reply Interrogatories Setting aside Interrogatories Answers to Interrogatories Discovery of Documents Advice on Evidence Change of Venue Trial Proof of the Plaintiff's Special Character Proof of Publication Proof of the Libel Proof of the Speaking of the Slander . Evidence as to the Innuendo Proof that the Words refer to the Plaintiff Proof that the Words were spoken of the Plaintiff in the way of his Office, Profession, or Trade ... • Evidence of Malice . Rebutting Justification Evidence of Damage Nonsuit Evidence for the Defendant Withdrawing a Juror Summing-up Costs . Proceedings after Judgment Application for a New Trial County Court Proceedings Other Inferior Courts PAGE 524 528 528 532 533 ib. 534 535 536 537 538 540 541 ib. 543 ib. 545 549 550 553 555 557 ib. 558 559 5G3 564 565 567 568 ib. 570 ib. 571 572 578 579' ib. 580 581 584 588 CHAPTER XX. PRACTICE AND EVIDENCE IN CRIMINAL CASES (19) 589— G14 TABLE OF CONTENTS (The paging refers to Ihe [*1 .pages.) PART I. PRACTICE AND EVIDENCE IN CRIMINAL PROCEEDINGS BY WAY OF INDICTMENT 589—610 Proceedings before Magistrates ...... 589 Indictment ......... 593 Pleading to the Indictment ...... 590 Certiorari ......... 597 Evidence for the Prosecution ...... 599 Evidence for the Defence .... . . 601 Summing-up and Verdict ...... 604 Proceedings after Verdict . . . . . . . 605 Sentence ......... 607 Costs . . . . . . . . . 609 PRACTICE AND EVIDENCE IN PROCEEDINGS BY WAY OF CRIMINAL INFORMATION .... 610—614 Motion for the Order Nisi . . . . . .610 Argument . . . . . . . . . 612 Compromise ........ 613 Trial and Costs . . . . . - . ib. APPENDICES. A. APPENDIX OF PRECEDENTS OF PLEADINGS, ETC. Contents .... 615— 1. Libel and Slander .statements of Claim in Actions for Defences, &c. No Libel No sufficient publication Justification Privilege Apology Interrogatories and Answers Precedents of Pleadings in Actions of Slander of Title Forms of Pleadings, Notices, etc., in the County Court . Precedents of Criminal Pleadings . . . . . B. REVISED SUMMING-UP BY LORD COLERIDGE, C.J., IN R. v. RAMSEY AND FOOTE 688 C. BILL FOR THE ABOLITION OF PROSECUTIONS AGAINST LAYMEN FOR THE EXPRESSION OF OPINION ON MATTERS OF RELIGION D. APPENDIX OF STATUTES Contents II. III. IV. 687 615 618 633 635 637 641 643 656 659 662 670 673 -704 GENERAL INDEX 705 . 707- -729 707 . 731- -SOS (20) TABLE OF CASES, (The paging refers to the [*] pages.) [* xsi] Abb— And. page v. Eaton (1813), cited 2 Ves. & B. 23 . . . . 347 Abbott v. Andrews, 8 Q. B. D. 64s ; 51 L. J. Q. B. (541 ; 30 W. R. 779 369 Abrath v. North Eastern Rv. Co., 11 App. Cas. 253 ; 55 L. J. Q. B. 400 ; 55 L. T. 65 ; 5t> J. P. 659 . . . . 4, 5, 270, 416 Abud v. Riches, 2 Ch. D. 528 ; 45 L. J. Ch. 649 ; 24 W. R. 637 ; 34 L. T. 713. 501 Adams v. Coleridge, 1 Times L. R. 84 . 212, ?40, 273, 274, 295 v. Kelly, Ry. & Moo. 157 . . . 156, 334, 560, 562, 565 ■ r. Meredew, 2 Y. &. J. 417 ; 3 Y. & J. 219 . . . 103 v. Rivers, 11 Barbour (N. Y.) Rep. 390 . . . . 84 Adlam r. Colthurst, L. R. 2 Adm. & Eccl. 30 ; 36 L. J. Ec. Ca. 14, 500, 512 Ahrbecker & Son v. Frost, 17 Q. B. D. 606 ; 55 L. T. 264 . . . 372 Aish v. Gerish, 1 Roll. Abr. 81 . . . . . 132 Alderton v. Archer, 14 Q. B. D. 1 ; 54 L. J. Q. B. 12 ; 33 W. R. 133 ; 51 L. T. 661 . . . . . . . 518 Aldrichw. Press Printing Co., 9 Min. 133 . . . . 416 Alexander v. Angle, 4 M. & P., 870 ; S. C. sub nom. Angle v. Alexander, 7 Bin«:. 119 ; 1 Tyr. 9 ; 1 C. & J. 143 . 69, 80, 103, 120 v North Eastern Ry. Co.. 6 B. & S. 340 : 34 L. J. Q. B. 152 ; 11 Jur. N. S. 619 ; 13 W. R. 651 ; 29 J. P. 692 . 171, 174 256, 545, 576 Alfred r. Farlow, 8 Q. B. 854 ; 15 L. J. Q. B. 258 ; 10 Jur. 714 . 55 62, 123 Allardice v. Robertson, 1 DowN. S. 514 ; 1 Bow & Clark, 495 ; 6 Shaw & Dun, 242 ; 7 Shaw & Dun. 691 ; 4 Wils. & Sh. App. Cas. 102 . 189 Allen v. Eaton, 1 Roll. Abr. 54 . . . . .77 Alleston v. Moor, Hetl. 167 . . . . . . 72, 77 Allhausen r. Labouchere (C. A.), 3 Q. B. D. 654 ; 47 L. J. Ch. 819 ; 48 L. J. Q. B. 34 ; 27 W. R. 12 ; 39 L. T. 207 ; 42 J. P. 742, 546, 549, 661 Allsop & wife r. Allsop, 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 6 Jur. N. S. 433 ; 8 W. R. 499 ; 36 L. T. O. S. 290 . . 87, 300, 336,397 Amann r. Damm (1860), 8 C. B. N. S. 597 ; 29 L. J. C. P. 313 ; 7 Jur. N. S. 47 ; 8 W. R. 470 .. . 214. 017, 223, 236, 2*9, 529 Anderson o. Bank of British Columbia (C. A.), 2 Ch. D. 644 ; 45 L. J. Ch. 449 ; 24 W. R, 724 ; 35 L. T. 76 . . . 554 v. Dunn, 6 Wheat. 204 . . . . . . . 49 » v. Hamilton, 2 Brod. & B. 156, n. .... 563 o. Liebig's Extract of Meat Co. Limited, 45 L. T. 757 . . 146 343, 349 Andres v. Wells, 7 Johns. (N. York) 260 413 (21) TA/iU'J OF CM .SAX [xxii] (The paging refer? to the [*] pages.) And— Ayr. Andrews, Ex parte, In re Fells, 4 Ch. I). 509 ; 46 L. J. W. R. 382 ; 30 L. T. 38 . V. Chapman, 3 C. & K. 286 v. Marris & another, 7 Dow], 712 Angle v. Alexander, 7 Bing. 119 ; 1 Tyrw. 9 ; 1 ('. & J. "P. 870 Annison v. Blofleld, Carter, 214 Aiioii., 1 Ohio, 83, n. 2 Barnard. 138. See R. v. Osborn (Exch.) 1 Roll. Abr. 55 Pasch. 11 Jac. I. ; 1 Roll Abr. 748 1 Roll. Abr. 82 3 Leon. 213 ; 1 Roll. Abr. 05 Holt, 052 .. . 1 Roll. Abr. 37 . 1 Roll. Abr. 81 68 N. Y. 202 Style, 392 . (1590) Moo. 459 . (1597) Cro. Eliz. 503 . (1598) Cro. Eliz. 043 ; Koy, 73 (1038) Cro. Jac. 510 . (1650) Style, 251 (1096) 2 Salk, 644 (1707) 11 Mod. 99 (1711) 1 Salk. 94 Ansell v. Waterhouse, 6 M. & S. 385 Anthony v. Halstead, 37 L. T. 433 . Archbold v. Sweet, 1 Moo. & Rob. 162 ; 5 C. & P. 219 Armitage ». Dunster, 4 Dougl. 291 Armstrong, Re, 9 Cox, C. C. 342 .... & others v. Armit A others, 2 Times L. R. 887 Arne v. Johnson, 10 Mod. Ill . Arnold v. Clifford, 2 Sumner, 238 . Ashley v. Harrison, Peake, 194, 256 ; 1 Esp. 48 - v. Taylor, 37 L. T. 522 ; (C. A.) 38 L. T. 44 Ashmore v. Borthwick, 49 J. P. 792 ; 2 Times L. R. 113, 209 Ashworth v. Outram, 9 Ch. D. 483 ; 27 W. R, 98 ; 39 L. T. 441 Astley (Sir John) v. Younge, 2 Burr. 807 : 2 Ld. Ken. 536 . Aston v. Blagrave, 1 Str. 617 ; 8 Mod. 270 ; Fort. 206 1369 Atherley v. Harvey, 2 Q. B. D. 524 36 L. T. 551 ;" 41 J. P. 661 Atkins v. Perrin, 3 F. A F. 179 Atkinson v. Fosbroke, L. R, 1 Q. B. 628 ; 85 L. J. Q. B. 182 ; N. S. 810 ; 14 W. R. 832 ; 14 L. T. 553 ; 30 J. P. v. Hartley, 8 MeCord. 203 .... Attorney-General v. Bradbury A' Eyans, 7 Ex. 97 ; 21 L. J. 16 Jur. 130 .... v. Compton, 1 Younge & Collver, Eq. 417 . v. Le Merchant, 2 T. R. 201 n. . i\ Pearson, 3 Mer. 405 v. Siddon, 1 Cr. &Jer.220 of New South Wales ». Macpherson, L. I!. 268 ; 7 Moo. P. C. (X. S.) 49 ; 39 L. J. P. ('. 59 Atwill v. Mackintosh, 6 Lathrop (120 Mass.) 177 Austin (Sir J.) v. Culpepper, 2 Show. 313 ; Skin. 123 Austria (Emperor of) v. Day A Kossuth, 3 De G. F. & J. 217 Ch. 690; 7 Jur. N. S. *639 .... Axmann v. Lund, L. R. 18 Eq. 330; 43 L. J. Ch. 655 ; 22 20 22 " '498! 46 L. J. Q. B. 518 PAGE Bkcy. 23 ; 25 . . 498 255, 259 . . 407 14:! ; 4 M. & 69, 80, 103, 120 . 70, 110 . 68 . 429 . 110 . 9'6 . 101 01, 122 . 127 . 141 . 131 . 330 530, 594 . 530 123, 126 60 76 . 506 . 582 6, 20, 22, 102 501 516 . 581 . . 27 . 564 . . 593 342, 347 67, 80, 115 8 15. 303, 329 . 548 . 257, 263 . 369 . 192, 193 2 Lord Raym. 71,72 25 \V. R. 727 ; . 549 . 145 12 Jur. 503, 528, 515 . . 61 Ex. 12 ; . 377 . . 873 . 600 699 414 401, 408 P. C. . 491 . . 208 0. 13, 20 L. J. 352, 358 W. R. 789. 146, 348, 349 10 (22) tabu: of casks. [* xxiii.] G8, To, 78, 79, 85, 568 (The paging refers to the [*] pagcp.) Ayn B rCravcn, 4 Xev. & M. £20 ; 2 A. & E. 2 . Baal 9. Baggerly, Cro. Car. 326 . . 55,122 Baboneau p. Parrell, 15 C. U. 360; 24 L. J. C. I'. 0; 3 1 Jur. N. 8. 114 . Bagg's Case, 11 Rep. 93, 95 ; 2 Rolle Rep. 79. 173, 224 Bailey p. Kalamazoo Publishing Co. (1879), 4 Chaaey, 251 Baillie p. Goodwin & Co., 33 Cli. D. 604 ; Co L. J. ( !h 849 55 L. T. 56 Bainbridge p. Lax, 9 Q. B. 819 • Baines p Bromley (C. A.), G Q. B. D. 695 ; 50 L. J. Q. B. 465 ; 29 \\ . R. 706 ; 44 L. T. 915 . Baker r Morfue nl Morphew, Sid. 327 : 2 Keble, 202 . . 70 v Newton, W. N. 1876, p 8; 1 Charley, 107; Bitt. 80; 20 Sol. J. 177 ; 60 L. T. Notes, 157 . o Pierce, 2 Ld. Raym. 959; Holt, 6.14; 6 Mod. 23 C. L. R. 42 . 82, (40 Michigan) 44, : 34 W. R. TNT ; r. Wilkinson, Car. & Mar. 899 . and others v. Piper, 2 Times L. R. 783 Baldwin p. Elphinston, 2 W. Bl. 1037 . p. Flower, 3 Mod. 120 Ball r. Roane, Cro. Eliz. 308 . Banister p. Banister (1683), 4 Rep. 17 Bank of British North America v. Strong, 1 App. Cas. 807 627 Bankes p. Allen, Roll. Abr. 54 .... Baptist, Churches p. Taylor, 3 Dunlop& Bell (2nd series), 1030 Barbaud p. Hookham, 5 Esp. 109 . Barbara's Case. 4 Rep. 20 ; Yelv. 21 2 Salk. 695 ; 18, 55, 62, 122, 153 158, 580, . 15, 92, . 14, 141, 84 L. T. . 191, 111 506 105 519 540 371 , 76 548 123 561 145 559 400 119 144 Barley v. Walford, 9 Q. B. 197 ; 15 L J. Q. B. 369 ; 10 Jur Barmund's Case, Cro. Jac. 473 .... Barnabas p. Traunter (1641) 1 Vin. Abr. 396 . Barnard p. Salter. W. N. 1882, p. 140 . Barnes p. Holloway, 8 T. R. 150 r. Prudlin, or Bruddel, 1 Sid. 396 ; 1 Vcnti 2 Keb. 451 ..... Barnet v. Wells (1700). 12 Mod. 420 Barnett, Be, 29 L. J. Ch. 871 v. Allen, 8 II. &. N. 876 4 Jur. N. S. 488 Barney v. United Telephone Co 573 Barratt p. Collins, 10 Moo. 451 Barrett p. Long, 3 II. L. C. 895 91' 61, 8 230 75 . . 462 244 60, 102, 122 16, 92, 145 300 336 30 565 87, 301, 81, 128, 529, 1 Lev. 261 ; 300, 27 L. J. Ex. 4L 23 Ch. D. 394 F. & F. 125 ; 23, 63, 84, 111, 33 W. R. 576 ; 52 L. T. 147, Ir. L. R. 439 ; 8 Ir. L. R. 331 Barrofis v. Ball (1614), Cro. Jac, 331 .... Barrow v. Lewellin, Hob. 62 . Barry p. Barclay, 15 C. I?. N. S. 849 v. M'Grath, Ir. R. 3 C. L. 576 ... Barton p. Taylor, 11 App. Cas. 197 ; 55 L. J. P. C. 1 ; 55 L. T. Barwell p. Adkins, 1 M. & Gr. 807 ; 2 Scott, N. R. 11 Barwis v. Keppel (1766), 2 Wils. 314 .... Bash v. Somner, 20 Penns. St. R. 159 Bassell v. Elmore, 48 N. Y. R. 563 ; 65 Barb. 627 Bateman et ux. v. Lyall et ux., 7 C. B. N. S. 638 . Bathurst v. Coxe, 1 Keb. 451, 465 ; Sir T. Ravin. 68 . Baxter, Ex parte, 28 J. P. 326 ...... Baylis v. Lawrence, 11 Add. & E. 920; 3 P. & D. 528 ; 4 Jur. (352 ; 4 J P. 443 . . . . . 94, 95, 270, 362, Beach v. Rannev, 2 Hill (N. Y.) 309 et vx. v. Beach, 2 Hill (N. Y.) 260 ... . 399, (23) 158 129, 278 . 305, 804, 332, 305 138 462 566 350 419 276 280 119 152 556 323 491 28D 195 399 383 570 505 431 578 301 540 xxiv TABLE OF CASKS. (.The paging refers to to the [*] pages.) [*xxiv.] Bea— Boa. page Beamond v. Hastings, Gro. Jac. 210 . . . . .72 Beatson V. Skene, 5 II. &. N. 888 ; 29 L. J. Ex. 430 ; (i Jur. N. S. 780 ; 2L. T. 378 ..... .205,207,555,563,572 Beatty and others v. Gillbanks, Q. B. D. 808 ; 51 L. .). M. C. 117 ; 31 W. R. 275 ; 47 L. T. 194 ; 46 J. P. 789 ; 15 Cox, C. ( '. 188 . . 380 Beauchamps (Lord) e. (Sir. R. Croft, Dyer, 285a . . . 191 Beaumont r. Barrett, 1 Moore, P. C. C. 76 ... 490, 491 Beavor v. Hides, 2 Wilson, 300 . . . . . . 123 Beddow v. Beddow, 9 Ch. D. 89 ; 47 L. J. Ch. 588 ; 20 W. P.. 570 359, 802, 363 Bedford v. Colt (not reported) .... 551,660,661 Bedwell v. Wood, 2 Q. B. D. 626 ; 36 L. T. 213 . . . . 368 Behrens v. Allen, 3 P. &. F. 135 ; 8 Jur. N. S. 118 . . 171, 538 Bell v. Byrne, 13 East, 554 ..... 59, 529, 564 v. Midland Railway Co., 10 C. B. N. S. 287 ; 30 L. J. P. C. 278 ; 9 W. R. 612; 4L. T. 293 . . . . . 85, 295, 311 v. Parke, 10 Ir. C. L. R. 279 ; 11 Ir. C. L. R. 413 . 207, 211, 242, 244 315, 321 v. Stone, 1 B. & P. 331 . . . . . . . 20 — and another v. Stacker, 10 Q. B. D. 129 ; 52 L. J. Q. B. 49 ; 47 L. T. 624 403 Bellamy v. Bureli, 16 M. & W. 590 . . . . 66, 82 Belt v. Lawes (C. A.), 12 Q B. D. 356; 53 L. J. Q. B. 249 ; 32 W. R. 607 ; 50 L. T. 441 . . . . 297, 583 v. , 51 L. J. Q. B. 359 . . . . . 535, 633, 634 Bendish v. Lindsay, 11 Mod. 194 . . . . . .56 Bennett v. Barry, 8 L. T. 857 . . . . . . . 241 v. Bennett, 6 C. &. P. 588 . . . . . 165, 314 ■ v, Deacon (1846), 2 C. B. 628 ; 15 L. J. C. P. 289 . . 214, 219 et ii.v. v. Watson and another, 3 M. & S, 1 . . . . 511 Benson v. Flower, Sir W. Jones, 215 • . . . . . 407 Berryman v. Wise, 4 T. R. 366 .... . G5, 558 Besant v. Wood, 12 Ch. D. 605 ; 40 L. T. 445 . . . . 872, 580 Biddulph v. Chamherlayne, 17 Q. B. 351 .... 177, 369 Biggs v. Great Eastern Railway Co., 16 W. R. 908 ; 17 L. T. 482 . 174 Bionell v. Buzzard, 3 H. &. N. 217 ; 27 L. J. Ex. 855 . . . 30 Bill v. Neal, 1 Ley. 52 . . . . . . . 71, 73 Bishop, In re, Ex parte Smith, 13 Ch. D. 110; 49 L. J. Ekcy. 1 ; 28 ' W. R. 174 ; 41 L. T. 388 499 v. Latimer, 4 L. T. 775 ... 28, 77, 99, 173, 261, 539 Bishops' (The Seven) Case, 4 St. Tr. 300 . . . . 562, 600 Bittridge's Case, 4 Rep. 19 .... . 98, 108. 127 Black v. Hunt, 2 L. R, Ir. 10 ..... . G2, 84 Blackburn v. Blackburn, 4 Bins;. 395 ; 1 M. & P. 83, 63 ; 8 C. & P. 146 269 Blackham v. Pugh, 2 C. B. 611 ; 15 L. J. C. P. 290 . . 145, 230, 240 Blackmail r. Bryant, 27 L. T. 491 . . . . . 62, 110 Blades v. Lawrence, L. R. 9. Q. B. 374 ; 43 L. J. Q. B. 133 ; 22 W. H. 643 ; 30 L. T. 378 585 Blagg v. Sturt, 10 Q. B. 899, 900 ; 16 L. J. Q. B. 39 ; 11 Jur. 101 ; 8 L. T. O. S. 135 ..... 27,228,278,279,311 Blake, Be, 30 L. J. Q. B. 32 5, 257 r. Albion Assurance Society, 4 C. P. D. 94; 48 L. J. C. P. 109 ; 27 W. R, 321 ; 40 L. T. 211 . . . . 276 r. Appleyard: 3 Ex. D. 195; 47 L. J. Ex 407 ; 26 W. R. 592 . 371 v. Pilfold, 1 M. & Rob. 198 . . . . 218, 226, 563 V. Stevens and others, 4 F. & F. 232 ; 11 L. T. 543 . 6, 28, 155, 171, 173 257 811 Bliss v. Stafford, Owen, 37 ; Moore, 188 ; Jcnk. 147 . . 140 Bloodworth r. Gray, 8 Scott, N. R. 9 ; 7 M. As Gr. 384 . . . 65 Bluck v. Lovering, 1 Times L. R. 497 .... 5)2,570 Blumley ». Rose, 1 Roll. Abr. 73 ..... . 105 Boaler v. Holder, 54 L. T. 298 . . . . . . 595 (24) TABLE OF CASES. xxv (The paging refers to the [*] pages ) [*xxv.] Boa— Bri pagr Boaler ».*Holder, 3 Times L. R. 546 ; 51 J. P. 277 . . . 595 Bold v. Bacon, Cro. Eliz, 346 . . . . . . . 140 Bolton v. O'Brien, 16 L. R. Ir. 97, 483 ... 98, 276 (Sir William) ®. Dean, cited in Austin v. Culpepper, 2 Show. 313; Skinner, 123 . . . . • • • .13 Bond v. Douglass, 7 C. & P. 626 . . . 156, 276, 334,559 Boosey v. Wood, 3 II. & C. 4S4 ; 34 L. J. Ex. 65 ; 11 Jur. N. 8. 181 ; 13 W. R. 317 ; 11 L. T. 639 g 540, 654 Booth and others v. Briscoe (C. A.), 2 Q. B. D. 496 ; 25 W. R. 838 . 26 Boston v. Tatam, Cro. Jac 623 ..... 59 Boston Diatite Co. v. Florence Manufacturing Co. and others, 114 Mass. 69 ......... :r,,i Botterill and another v. Whitehead, 41 L. T. 588 . 71, 78, 173, 216. 221 239, 270,623 Boulton v. Chapman (1640). Sir W. Jones, 431 ; March 20, pi. 45 . 193 Bourke ». Warren, 2 C. & P. 307 . .... 129,131,567 Bourn's (Sir John) Case, cited Cro. Eliz. 497 . . • 132 Bowden v. Allen, 39 L. J. C. P. 217 ; 18 W. R. 695 ; 22 L. T. 342 . 552 and another d. Russell, 46 L. J. Ch. 414 ; 36 L. T. 177 . . 339,498 Bowen v. Hall and others, 6 Q. B. D. 333 ; 50 L. J. Q. B. 305 ; 29 W. R. 367 ; 44 L. T. 75 ; 45 J. P. 373 15 Boxe i\ Barnaby, 1 Roll. Abr. 55 ; Hob. 117 . ... .76 Boydell ». Jones, 4 M. &. W. 446 ; 7 Dowl. 210 ; 1 Horn & II. 408 . 21, 26 99, 116, 261 Boyle v. Wiseman, 10 Ex. 647 ; 24 L. J. Ex. 160; 24 L. T. (O.S.)274, 502, 564 — — v. 11 Ex. 360 ; 24 L. J. Ex. 2S4 ; 25 L. T. (O.S.) 203 . 564 Bracebridge ». Watson, Lilly Entr. 61 ... 300 Bracegirdle v. Bailey, 1 F. & F. 536 . . . . . . 321 — ' v. Orford, 2 .Man. & S. 77 13 Bradbury v. Cooper, 12 Q. B. D. 94; 53 L. J. Q. B. 558 ; 32 W. R. 32 ; 48 J. P. 198 . . . . • • • 534 Bradlaugh, Ex parte, 3 Q. B. D. 5C9 ; 47 L. J. M. C. 105; 26 W. R. 758 ; 38 L. T. 680 . . . . . ■ 473 and Besant ». The Queen (C.A.), 3 Q. B. D. 607; 48 L. J. M. C. 5 ; 26 W. R. 410 ; 38 L. T. 118 ; 14 Cox, C. C. 68 472, 490, 593,608 S C sub nomine R. v. Bradlaugh and Besant 2 Q. B. D. 569; 46 L.J. M. C. 286 .... 5,606 Bradley v Methwyn, Selwyn's Nisi Prius, 982 .... 3 Bradt v. Towsley, 13 Wend. 253 . . . . . . 302 Brady v. Youlden, Kerferd and Box's Digest of Victoria Cases, 709 ; Melbourne Argus Reports, Sept. 6th, 1867 . . 69, 82, 303, 306 Brand & wife v. Roberts and wife, 4 Burr. 2418 . . . 60, 86 Brandreth v. Lance (1839), 8 Paige, 24 (New York Ch.) . . 348, 357 Brandrick r. Johnson, 1 Vict. L. R. Cases at Law, 306 . . . 68, 78 Bray v. Ham, 1 Brownl. & Golds. 4 . . . . 81 (Sir Edward)®. Andrews (1564), Moore, 63 . . . 54,60 Brayne v. Cooper, 5 M. & W. 249 . . . . 15, 56, 68, 80, 85 Bree r. Marescaux (C. A.), 7 Q. B. D. 434 ; 50 L. J. Q. B. 676 ! 29 W. R. 858; 44 L. T. 644, 765 ..... 334, 409, 518 Brernbridge v. Latimer, 12 W. R. 878 ; 10 L. T. 816 .* 101, 177, 540 Brenon v. Ridgway, 3 Times L. R. 592 . . . . . 37 Brent v. Spratt, Times, Feb. 3rd, 1882 ..... 78.117 Breslin v. Peck, h38 Hun (45 N. Y. Supr. Ct.) C23 . . . . 522 Bretherton and others v. Wood, 3 B. & B. 54 . . . .516 Brett v. Watson, 20 W. R. 723 . . . . . . 155, 273 Brewer r. Dew and another, 11 M. & W. 625 . . . .13 Brewster's Case, Die L. L 76 . . . . . . 486, 487 Bridges o. Playdel, Brownl. & Goldsb. 2 . . . . .56 Brigg's Case, Godb. 157 ....... 55 Briggs c. Hartley (1850), 19 L. J. Ch. 416 . . . . . 463 (25) xxvi TABLE OF CASKS'. (The paging refers to the [*] pages.) [* sxvi] Bri-Bur. pack Brine v. Bazelgette, 3 Ex. 692 ; 18 L. J. Ex. 348 . . . 310,569 Brinsmead r. Harrison, L. R. 7 C. P. 54? ; 41 L. J. C. P. 1CU; SO W. B. 784; 27 L. T. 99 . . . . . . 316, 522 British and Foreign Contract Co. v. Wright, 32 W. R. 413 . . 517, 553 Briton Life Association, Ld. v. Roberts, 2 Times L. R. 319 . . 347 Broadhurst v. Willey, W. N. 1876, p 21 . . . . 370 Brocklebank v. King's Lynn Steamship Co., 3 C. P. I). 365 ; 47 L. .). C. P. 321 ; 38 L. T. 489 . . . . , . . 407 Brodribb v. Brodribb & Wall, 11 P. D. CO; 55 L. J. P. D. &, A. 47 ; 34 W. R. 580; 50 J. P. 407 . . . . . . 497 Broke's Case. Moore, 409 . . . . . . .75 Bromage v. Prosser, G D. & R. 296 ; 4 B. & C. 247 ; 1 C. & P. 475, 673, 165 2u7, 246, 269, 271, 285, 529 Bromfield v. Snoke, 12 Mod. 307 82 Brook v. Evans, 29 L. J. Ch. 616 ; 6 Jur. X. S. 1025 ; 8 W. R. 688 . 254, 495 v. Montague (Sir Henry) (1606), Cro. Jac. 90 . . .189 v. Rawl, 4 Ex. 521 ; 19 L. J. Ex. 114. . . .141, 143 v. Wise (1601), Cro. Eliz. 878 . . . . .65 Brooke v. Avrillon, 42 L. J. C, P. 126 . . 278 v. Clark, Cro. Eliz. 328 ; 1 Vin. Abr. 4G4 . . . .71 Brookes v. Tichborne, 5 Ex. 929 ; 20 L. J. Ex. 69 ; 14 Jur. 1122 . 2!, 560 Brooks o. Blanshard (18:33), 1 Cr. & M. 779 ; 3 Tyr. 844 . 215, 220, 244 Broome v. Gosden, 1 C. B. 728 . . . 100, 101, 129, 507, 582 Brown, Report,; 5 B. & S. 230 ; 33 L. J. Q. B. 19-J ; 13 W. R. 821 ; 10 L. T. 453 491 v. Ea Ward v. Morse (C. A.), 23 Ch. D. 377 ; 52 L. J. Ch. 524 ; 31 W. R. 936 ; 49 L. T. 68 . . . . . 371 v. Brine, 1 Ex. I). 5 ; 45 L. J. Ex. 129 ; 24 W. R. 177 ; 33 L. T. 703. 8, 22 v. Croome, 2 Stark. 297 . . . . 230, 247, 286, 509, 570 v. Dorse, R. v. Kettle, 17 Q. B. D. 7C1 ; 55 L. J. Q. B. 470'; 34 W. R. 776 ; 54 L. T. 875 587 v. Hirley, 5 Up. Can. Q. B. Rep. (Old S.), 734 . . . 522 v. Lane or Low, Cro. Jac. 433 ; 1 Roll. Abr. 79 . . 132 v. Murray, 4 D. & R. 830 . . . . . .556 v. Nickerson, 1 Gray, 1 . . . . . 88 v. Smith, 13 C. B. 590; 22 L. J. C. P. 151 ; 1 C. L. R. 4; 17 Jur. 807 .80, 293,299 v. Wootlon, Cro. Jac. 73; Yelv. 67 ; Moo. 762 . . 310, 522 Browne v. Murray, Ry. & Moo. 254. ..... 570 Bruce v. Nicolopulo, 11 Ex. 133 ; -24 L. J. Ex. 324 . ... 564 Brunkard v. Segar, Cro. Jac. 427 ; Hull. 13 ; 1 Vin. Abr. 427 . 62, 84 Brunswick (Duke of) v. Harmer, 14 Q. B. 185 ; 19 L. J. Q. B. 20 ; 14 Jur. 110 ; 3 C. & K. 10 . 101, 169, 230, 238, 296 521, 559,566, Cll ». Pepper, 2 C. & K. 083 . . . 310, 522, 053 Bruton o. Dowries, 1 F. & F. 008 . . . . .22, 194 Bryant, In re, 4 Ch. D. 98 ; 25 W. R. 230 ; 35 L. T. 489 . . . 499 v. Loxton, 11 Moore, 344 ..... 69,82 Bryce v. Rusden, 2 Times L. R. 435 ..... 37 Buchanan v. Taylor, W. N. 1876, p. 73 ; Bitt. p. 131 ; 20 Sol. J. 298 ; 00 L. T. Notes, 268 548 Buck r. Hersey, 31 Maine, 558 . . ' . . . 09 Buckingham r. Murray, 2 C. & P. 46 . . . . . 529 Buckley v. Wood, 4 Rep. 14 a ; Cro. Eliz. 230 . . 191, 193, 250 Buckton v. Higgs, 4 Ex. D. 174 ; 27 W. R. 803 ; 40 L. T. 755 . 370 Buenos Avres Gas Co. v. Wilde, 29 W. R. 43 ; 42 L. T. 657 . 495, 496 Buist p. Bridge, 29 W. R. 117 ; 43 L. T. 432 . . . . 499 Bull r. Chapman, 8 Ex. 104 . . . . . . . 7 Burcher v. Orchard et n.r. (1052), Style, 349 ; 1 Roll. Abr. 781 . 404, 420 Burder*. ,3 Curt. 827 . . . . . . . 448 Binder v. Heath, 15 Moore, P. C. C. 80 ; Brod. & Fremantle, 234 . 406 Burdett v. Abbot, 5 Dow, II. L. 165 ; 14 East, 1 . 150. 157, 490, 491, 502, 559 (26) PAGE TABLE OF CASES. [*xxvii] (The paging refers to the [*] pages.) Bur-Cas. . Colmanj U East, 163 .... Burgess r Bracher, 8 Mod. 238 ; 2 Ld. Raym. 1366 ; 1 Stra. 594 96, 582 Burnet v. Wells (1700), 12 Mod. 420 ... ■ 81 Burnett v Chetwood, cited in Southey v. Sherwood, 2 Mer. p. 441 . 352, 352 „.Tak, 45 L. T. 743 ; W. N. 1882, p. 8 . 139, 146, 172, 343, 349 Burnes Champion. Hyndman and Williams, Ex parte, 2 Times, L. R. 352, 506 Bursill' v. Tanner, 13 Q. B. I). 691 : 32 W. R. *27 ; 50 L. T. 589 . 400 _ ,, -^ (C. A.), 16 Q. B. D.l; 55 L.J. Q. B. 53; 53 L. T. 445, 401 Burton v. Plummer, 2 A. & E. 343 . . • • • 565 Butt v Conant, 4 Moore 195 ; 1 Brod. & Bing. 548 ; Gow, 84 . 493, 589 Q. C. r. Jackson, 10 Ir. L. R. 120 190 But terworth v. Robinson, 5 Ves. 709 .... • 340 Button r. Heyward et ux. (1722), 8 Mod. 24 . . . 1S \; M \ ! i' ) Byam v. Collins (1886), 39 Hun. (40 N. Y. Sup. Ct.), 204 . . 219, 2,4 Byrchley's Case, 4 Rep. 16 J6 Byron (Lord) ». Johnston, 2 Mer. 29 . . . . • ooJ 564 187 405 499 277 C v. Lindsell, 11J. P. 352 Caesar i\ Curseny, Cro. Eliz. 305 ..... 67, Calder i\ Halket, 3 Moo. P. C. C. 28 . Caley v. Caley, 25 W. R. 528 Callow v. Young, 56 L. T. 147 . Camfield v. Bird, 3 C. & K. 56 .... Campbell v. Spottiswoode, 3 B. & S. 769 ; 32 L. J. Q. 13. 185 ; 27 J. P. 501 ; 9 Jur. N. S. 1069 ; 11 AY. R. 569 ; 8 L. T. 201 ; S. C. at Nisi Prius, 3 F. &. F. 421 ; . 20, 28, 33, 33, 39, 40, 49 and another r. The Queen, 11 Q. B. 799 ; 17 L. J. M. C. 89 , . 607 Cane v. Golding (1649) Style 169, 176 HI. 144 Cann v. Cann (Mrs. Farley's case), 2 Ves. sen. 520 ; 3 Hare, 333, n. . 496 Canned v. Curtis, 2 Bing. N. C. 228 ; 2 Scott, 379 ... 06, 558 Capel v. Powell and another, 17 C. B. N. S. 743 ; 34 L. J. C. P. 168 ; 10 Jur. N. S. 1255 ; 13 W. R. 159 ; 11 L. T. 421 . . . 404 and others r. Jones, 4 C. B. 259 ; 11 Jur. 396 . . 103, 114 Capital & Counties Bank v. Henty & Sons (in C. P. D.), 28 AY. R. 490 ; 42 L. T. 314 U6 (C. A.), 5 C. P. D. 514 ; 49 L. J. C. P. 830 ; 28 Av . R. 851 ; 43 I, T. 651 ; 45 J. P. 188 . . . 102, 113, 116, 240, 567 (II L.), 7 App. Cas. 741 ; 52 L. J. Q. B. 232 ; 31 AV. R. 157 ; 47 L. T. 662 ; 47 J. P. 214 . . 24, 102, 113, 116, 240, 567 Carmiehael v. Waterford & Limerick Ry. Co., 13 Ir. L. R. 313 273, 311 Cam v. Osgood, 1 Lev. 280 . . . . • .72 Carpenter v. Tarrant, Cas. Temp. Hardwicke, 339 . . . . 59 Can- v. Duckett, 5 H. &. N. 783 ; 29 L. J. Ex. 468 . 142, 540, 687 t\ Jones, 3 Smith, 491 ; S. C. sub mm. Stiles v. Nokes, 7 East, 493 22 46, 176, 280, 312 (Sir John) v. Hood, 1 Camp. 355, n 34, 48, 49 Carr's Case, Henry, 7 Howell's State Trials, 1111 . . . 3ol Carroll ». Bird, 3 Esp. 201 202 v. Falkiner, Kerferd & Box Die;, of Victoria Cases, 216 . . 329 Carroll v. White, 33 Barb. 615 ; 42 N. Y. 161 . . . -77 Carslake v. Mapledoram, 2 T. R. 473 64 Carta Para Mining Co., In re, 19 Ch. D. 457 ; 51 L. J. Ch. 191 ; 46 L. T. 406 407 Carter v. Jones, 6 C. & P. 64 ; 1 M. &. R. 281 . . . • ; «7 v. Leeds Daily News Co. & Jackson, W. N. T876, p. 11 ; Bitt. 91 ; 1 Charley, 101 ; 20 Sol. J. 218 ; 60 L. T. Notes, 196 . 552, 553, 659, 660 Cartwright v. Wright, 5 B. & Aid. 615 ; 1 D. & Ry. 230 . . 529, 564 Casey v. Arnott, 2 C. P. D. 24 ; 46 L. J. C. P. 3 ; 25 W. R. 46 ; 35 L. T. 424 / 15,150,409,519 (27) xxviii TABLE OF CASES. (.The paging refers to to the [*] pages.) [*xxviii.] Cas-Cle. page Cassidy v. O'Loghlen, 4 L. R. Ir. 1, 731 368 Castro's Case, L. R. 9 Q. B. 219 ; 12 Cox, C. C. 358 . .497, 501, 512 Caulfield v. Whitworth, 16 W. R. 936 ; 18 L. T. 527 . 178,-272, 27s, 564, 500 Cans v Roberts, 1 Keb. -118; s. C. sub nom. Roberts v. Herbert, Sid. 97 . 60,86 Cave r. Tonv, 51 L. T. 87, 515 ; 2 Times L. R. 355, 405 . . . 537 Cawdry v. Highley, al. Tythay al. Tetley, (To. Car. 270 ; Godb. 441 70, 75 Ceely v. Hoskins, Cro. Car. 509 ... . 56,02,124 Chaddock o. Briggs, 13 Mass. 248 . . . . . . 09 Chadwick v. Herapath, 3 C. B. 885 ; 16 L. J. C. P. 101 ; 41). •. Bolton or Bou\ Hulbert (not reported), Jan. 25th, 1878 . . . .107 Dexter v. Spear, 4 Mason, 115 . . . . . • • 435 Dihdin v. Swan and Bostock, 1 Esp. 28 ..... 50 Dicas v. Brougham (Lord), 6 C. &. P. 249 ; 1 M. &. R. 309 . . . 188 v. Lawson, cited 5 Tyrw. 766 ; 2 C. M. L. T. 196 . . . .37, 213, 242 Dickinson v. Barber, 9 Tyne. (Mass.) 218, 225 . . . 5, 406 Dicks v. Brooks, 13 Ch. D. 652 ; 28 W. R. 525 ; 40 L. T. 710 ; (C. A.) 15 Ch. D. 22 ; 49 L. J. Ch. 812 ; 29 W. R. 87 ; 43 L. T. 71 . 146, 149, 343, 360, 367 o. Yates, (C. A.) 18 Ch. D. 76 ; 50 L. J. Ch. 809 ; 44 L. T. 660 . 367 (31) TABLE OF CASKS. (The paging refers (o the [*] pages.) Die Dun. Dickson v. Combermere and others) 3 F. & F. 527 v. Wilton (The Karl of), 1 F. & F. 419 Digby v. Thompson and another, 1 N. & M. 485 ; 4 B. £ Dill v. Murphy and another, 1 Moore P. ('. ('. X. S. 487 Dinsdale v. Goodlace, 40 J. P. 792 . Dixon /■. Bell, 5 Maule <& 8. 198 . v. Enocl), L. R 13 Eq. 394; 41 L. J. Ch. 231 J;. T. 127 v. Holden, L J. P. 612 v. Parsons, 1 F. & F. 24 v. Smith, 5 H. & N. 450 ; 29 L. J. Ex [* x.xxii] 19G, 242 & Ad. 821 2 J W. R. 359; 2G 196 275 23 491 532 405 R. 7 Eq. 488 ; 17 W. R. 482 ; . 17. 33 20 L. T. 344, 354, 355, 357, 358 . 202 78, 1GS, 220, 302, 304, 305, 332, 333, 570 . 315, 543 . 80 68, 73, 83 . 72 279 Dobede v. Fisher, Times, July 29th, 1880 Dobson v. Thornistone, 8 Mod. 112 . Dod /•. Robinson (1648), Aleyn, 62 Dodds v. Henry, 9 Mass. 262 Dodson v. Owen, 2 Times L. R. Ill Doe d. Devine, v. Wilson, 10 Moo. P. C. 502, 530 Mudd v. Suckermore, 5 A. & E. 703 . Dole v. Lyon, 10 Johns. (N. Y.) 447 Dolloway v. Turrell, 26 Wend. (N. Y.) 3S3 Donne's Case, Cro. Eliz. 63 Donoghue®. Hayes (1831), Hayes (Irish Ex.) 265 Dorchester (Marquess of) v. Proby, 1 Levinz, 148 Doss v. Secretary of State for India in Council, L. R. 19 Eq. 509 ; 21 W. R. 733; 32 L. T. 294 . Dovaston v. Payne, 2 Sm. L. C. 8th Ed. p. 142 . Doveton, Ex parte, 26 L. T. (O. S.) 73 ; 7 Cox C. C. 16 ; 19 J. P. 741 bowling v. Browne (1854), 4 Ir. C. L. R. 265 . . . . , Downie v. Arrindell, Be, 3 Moore, P. C. C. 414 . . . , Doyle «. O'Doherty, Car. &. M. 418 ..... — and others v. Falconer, L. R. 1 P. C. 328; $5 L. J. P. C. 37; W. R. 366 . . . . Doyley v. Roherts, 3 Biug. N. C. 835 ; 5 Scott, 40 ; 3 Hodges, 154 311 . 560 . 560 . 165 . 73 . 54 93, 108 . 137 !3 . 196 . 85 428, 429 406 504 192 15 Drake, Ex parte, In re Ware, 5 Ch. D. 860 ; 46 L. J. Ch. 105 ; 25 W 641 ; 36 L. T. 677 .... . v. Drake (1652), 1 Vin. Abr. 463 ; 1 Roll. Abr. 58 v. Hill, .Sir T. Raym. 184 ; 2 Keb. 549 ; 1 Lev. 276; Sid. 424 Draycott or Darracott v. Harrison, 17 Q. B. D. 147 ; 34 W. R. 546 Driffield Arc. Co. v. Waterloo, &c. Co., 31 Ch. D. 638 ; 55 L. J. Ch. 391 ; 34 W. R. 360 : 54 L. T. 210 147 Drummond v. Leslie, 5 Blackf. (Indiana) 453 ..... Du Barre v. Livette, Peake, 76 .... Du Bost v. Beresford, 2 Camp. 511 Dudley, Be. (C. A.) 12 Q. B. D. 44 ; 53 L* J. Q. B. 49 L. T. 737 ..... Dun;dale v. Regina, 1 E. & B. 425 ; 22 L. J. M. C. l7Jur. 546 .... Duncan r. Thwaites, 3 B. & C. 556 ; 5D. A- R. 447 Duncomhe r. Daniell, 8 C. & P. 222; 2 Jur. 32 ; cited 7 Dowl. 472 .... Dunman v. Bis;^, 1 Camp. 269, n. Dunn p. Hall, 1 Carter, 345 (Indiana) 1 Smith, 288 . Dunne v. Anderson, 3 Bing. 88 ; 10 Moore, 407 : R. Duplany v. Davis, 3 Times L R. 184 Dwyer v. Esmonde, 2 L. R. Ir. 243 ; Ir. R. 11 C. L v. Meehan, 18 L. R. Ir. 138 . 491 09, 77 296, 568 R. . 498 . 73, 74- 81 405 351 . 63 . 208 I 20, 22, 352, 353, 568 ; 32 W. R. 264; 499 Dears. C.C. 64; . 472 . 249. 250. 252, 255, 539 1 W. W. A II. 101 ; 43,241,246,314 239 .' 413 & M. 2S7 . . 43 38, 50 542, below . 52, 233 86, 301 6, 16; -,0 1 ; 39 L. T. 83 . 581 Evans v. Chamberlain of London (The), 16 Pari. History, 325 ; 2 Burn. Eccl. Law, 218 . . . . . . 443, 460- r. Gwvn, 5 Q. B. 844 . . . . . . . 74 v. Harlow, 5 Q. B. 624 ; 13 L. J. Q. B. 120 ; D. & M. 507 ; 8 Jur. 571 . . . . . 30, 31, 81, 148, 149 v. Harries, 1 H. & N. 251 ; 26 L. J. Ex. 31 294, 304, 305, 308, 309, 332 532 v. Rees, 9 C. B. N. S. 391 ; 30 L. J. C. P. 16 . . . ' 366 v. AValton, L. R. 2 C. P. 615 ; 15 AV. R. 1062 . . . . 406 Evening News, lie. 3 Times L. It. 255 .... 254, 429 v. Tryon, 36 Amer. R. 450 ; 42 Mich. 549 . . 323 Eyre v. Garlick, 42 J. P. 68 . . . . . .6, 13 Fairman v. Ives, 1 D. & R. 252 ; 5 B. & Aid. 642 ; 1 Chit. 85 . . 169, . 226, 227, 228, 250 Falkland (Lord) v. Phipps, 2 Comyns, 450 ; 1 Via Abr. 549 . . 137 Falkner v. Cooper (1678), Carter, 55 . . . . . 131 Falvey v. Stanford, L. R. 10 Q. B. 54 ; 44 L. J. Q. B. 7 ; 23 W. R. 162 ; 31 L. T. 677 ; 39 J. P. 134 296, 584 Farley's (Mrs.) Case (Cann v. Cann), 2 Yes. Sen. 520 ; 3 Hare, 333 n. . 496 Farrow v. Hague, 3 H. & C. 101 ; 33 L. J. Ex. 258 . . . . 588 Faund v. AA r allace, 35 L. T. 361 ., . . . . 581 (33) xxxiv TABLE OF CASKS. [* xxxiv] (The paging refers to the [*] pages.) Fel-Fra. 1>A01! Felkin v. Herbert, 33 L. J. Ch. 204 ; 12 W. R. 341, 332 ; 9 L. T. 635 ; 10 Jur. N. S. 62 . . . . . . . 46, 497 Fellowes. v. Hunter, 20 Up. Can. Q. B. 382 .... 09, 82 Foils. In re, Ex parte Andrews, 4 Ch I). 509 ; 46 L. J. Bkcy. 23 ; 25 W. R. 38-2 ; 36 L. T. 38 . . . . . . . 498 Fenn v. Dixe (1638), 1 Roll. Abr. 58 . . . . .81 Fenton- v. Hampton, 11 Moore, P. C. C. 347 . . . .490,491 Ferguson v. Clayworth and wife, 6 Q. B. 269; 13 L. J. Q. B. 329; 8 Jur. 709 ; 2 D. & L. 165 ..... 401,405 Fernandez, Ex parte, H. & N. 717 ; 10 C. B. N. S. 3 ; 30 L. J. C. P. 321 ; 7 Jur. N. S. 529, 571 ; 9 W. R. 832 ; 4 L. T. 296, 324 . 501, 502 Field b. Bennett, 56 L. J. Q. B. 89 . . . . . 519 v. 2 Times L. R. 91, 122 . . . . . . 550 v. Gt. Northern Ry. Co., 3 Ex. D. 261 ; 26 W. R. 817 ; 39 L. T. 80 372, 584 Figgins v. Cogswell, 3 M. & S. 369 . . . . 80, 83 Finden v. Westlake, Moo. & Mai. 461 . . . . 232, 280, 289 Finnerty v. Tipper, 2 Camp. 72 .... 277,310,318 Fisher v. Atkinson, 1 Roll. Abr. 43 ..... 83 v. Clement, 10 B. -. Lawson, 11 Moore, 360 ; 3 Bing. 412 . 83, 419 Foulger v. Newcomb, L. R. 2 Ex. 327; 36 L. J. Ex. 169; 15 W. R. il81 ; 16 L. T. 595 ; 31 J. P. 503 . . 23, 69, 79, 115, 120, 531 Fountain v. Boodle et ux., 3 Q. B. 5 ; 2 G. & D. 455 . 2 7s. 279, 310, 570 v. Rogers (1601), Cro. Eliz. 878 . . . .■ .121 Fowell v. Cowe; Roll. Abr. 56 . . . . . . 72 Fowler v Aston, Cro, Eliz. 268 ; 1 Roll. Abr. 43 . . . 121 Fowler v. Dowdney, 2 M. & Rob. 119 . . . . .59 and wife /-.'Homer, 3 Cam]). 294 . . 212, 222, 223, 281 Fowles v. Bowen, 3 Tiffany (30 N. Y. R.), 20 . 203, 273, 274, 277, 334 Fox v. Broderiek. 14 Ir. C. L. Rep. 453 ..... 155 Foxcroft v. Lacey, Hobart, 89 ; 1 Roll. Abr. 75 . . . . 132 Francis r. Boose', 3 M. & W. 191 ; 1 II. & II. 36 . . . 55, 105 Franklyn v. Butler, Pasch. 11 Car. I., cited Carter, 214 . . 115 (34) TABLE OF CASKS. 34 L. J. C. P. 4o (The paging refers to the [*] pages.) Fra— God. „ „ „ „„„ Fraser v. Berkeley. 7 C. & P. 621 . Fray v. Blackburn, 3 B. & S. 576 r. Fray, IT C. B. N. S. 603 1153 Freetky v. Freethy; 42 Barb. N. York, 641 Frescoe v. May, 2 F. & F. 123 Freston, Re ((''. A.), 11 q. B. 13. 545 ; 52 L. J. Q. B. 545 804 : 49 L. T. 290 Fi-y »■ Came (1724), 8 Mod. 283 . Fryer u. Gatheroole, 4 Exch. 262 ; 18 L. J. Ex. 389 ; 13 Jur. 542 — - v. Kinnersley, 15 0. B. N. S. 422 ; 33'L. J. C. P. 96 ; 10 N. S. 441 ; 12 \Y. R. 155 ; 9 L. T. 415 Fuller v. Fenner, 16 Barb. 333 . Fyfe v. Gray, 73 Law Times (Newspaper), 309 [* xxxv] PAGE 48, 319 . . 188 L0 Jur. N. S. . 21, 94, 572 . . 398 316, 522, 577 31 W. R. 581, . 499 . 56, 121 . 562 Jur. 202, 245, 2S4 . . 302 146, 350 Gaikfokd r. Tuke (1620), Cro. Jac. 5 Gale v. Leekie, 2 Stark. 107 . Gullwey r Marshall, 9 Ex. 294 ; 23 L. Gardiner--. At water (1756), Saver, 265 v. Williams, 2 C. 31. & R. 78 578 Gardner 59, 127 J. Ex. 73 ; 2 C. L. E. 399 1 M. & W. 245 ; 1 6^. 7:5, 75, 85, . 127, Tyr. & Gr. Q. B. 334 ; 13 Jur. 545 W. Slade et ux., 13 Q. B. 796 ; 18 L. J 13 J. P. 490 ... Garnett c Bradley (C. A.), 2 Ex. D. 349 ; 46 L. J. Ex 653; 39 L. T. 725; 43 J. P. 20 . (H. L.), 3 App. ('as. 944 ; 48 L. J. Ex. 186 ; 26 W 698 ; 39 L. T. 261 v. Ferrand, 6 B. & C. 611 Garr v. Selden, 6 Barb. (N. Y.), 41G ; 4 Comst. HI. Garrels a. Alexander, 4. Esp. 37 (Janet v. Taylor, Cro. Jac. 567; 1 Roll. Abr. 108 Garrow's Case, Sir. W., 3 Chit. Crim. L. 884 . Gascoigne et ux. v. Ambler, 2 Lord Raym. 1004 Gaskin v. Balls, 13 Ch. D. 324 ; 28 W. R. 552 . Gassett t>. Gilbert and others, 6 Gray (72 Mass.), 94 Gates >\ Meredith, 7 Ind. 440 Gath v. Howarth, W. N. 1884, p. 99 ; Bitt. Ch. (as. Gathercole v. Miall, 15 M. & W. 319 ; 15 L. J. Ex 10 J. P. 582 ..... Gay v. Labouchere, 4 Q. B. D. 206 ; 48 L. J. Q. B. 826; 202, 79 179 it. 336, R. 366, 220, 230, 240, . 368, 10 Jur. 337; 26, 48, 49, 289, 311, 279 ; 27 W. R. 412 Geary ». Physic, 5 B. et C. 238 . Gee v. Pritchard and another (1818), 2 Swan. 402 . Geisler v. Brown, 6 Neb. 254 ..... Gelen v. Hall, 2 H. & N. 379 .... General Baptist Churches v. Taylor, 3 Dunlop & Bell, 2nd series George v. Goddard, 2 F. & F. 689 .... Gerard (Sir G.) v. Dickenson (1590), 4 Rep. 18 ; Cro. Eliz. 197 Getting r. Foss, 3 C. & P. 160 Gillett «. Bullivant, 7 L. T. Old S. 490 . Gilpin v. Fowler, 9 Ex. 615 ; 23 L. J. Ex. 152 ; 18 Jur. 293 . 548, 348, 353, 1030 114, 168, Ginnet r. 565 ; Girand v. 55 L. J. Q. B. 409 30, 12, 2; ' 1, 34 W. R. Whittinffham, 16 Q. B. D. 761 2 Times L. R. 243 . Beach, 3 E. D. Smith (New York City Common Pleas), 337 Goddart v. Haselfoot, 1 Roll. Abr. 54 1 Vin. Abr. S. a. (35) pi. 12 74, 531 165 130 272 527 527 507 76 560 4 431 86 360 247 406 526 563 549 6 358 305 188 462 241 273 213 334 275 562 520 132 77 xxxvi TABLE OF CASES. [* xxxvi] (The paging refers to the [*] pages.) Gof Gut PAGE Godfrey v. Owen, Palm. 21 ; 3 Salk. 327 . . . . .61 Godsons Home, 3 Moore, 223 ; I Br. & B. 7 . . . 28, 210,270 GofflD B. Donnelly, 6 Q. B. I). 307 ; 00 L. J. Q. B. C03 ; 29 W. R. 440 ; II L. T. 141 ; 45 J. P. 439 186,195 Gold v. Turner, L. R, 10 C. P. 149 ; 23 W. R. 7C2 . . . . 518 Goldstein v. Foss, 1 M. &. P. 402 ; 6 B. & ('. 154 ; 2 Y. & J. L46 ; 9 1) & R. M : 4 Pin-. 489; 2 C. & 1'. 252 ; Add. iii. 24. 11-1, 120, 213 Gompertz v. Levy, 9 A. «fc E. 282 ; 1 P. &. D. 214 ; 1 W. W. & II. 72s ; 2 Jur. 1013 " . . . . • • • -103 Goodale /'. Castle, Cro. Eliz. 554 62,84 Goodburne v. Bowman and others, 9 Bing. 532 . . .28, 173, 539 l) w (as lo costs), 9 Bing. 6G7 . . . 369 Gorham v. Bishop of Exeter (1850), Brod. & Fremantle, 64 . . 449 Goslin r. Corry, 7 M.. & (Jr. 342 ; 8 Scott, N. R. 21 . . . . 308, 520 Gossett v. Howard. 10 Q. B. 359, 411 ; 14 L. J. Q. B. 367 ; 16 L, J. Q. B. 345 ; 11 Jur. 750 ; Car. & M. 380 . . . 490, 501 Gostling v. Brooks, 2 F. & F. 76 . . . . .80,115 Gott r. Pulsifer, 122 Mass. 235 ..... 49 Gottbehuet v. Hubachek, 36 Wisconsin, 515 . . . 69 Gough v. Goldsmith, 44 Wis. 262 ; 28 Amer. R. 579 .. . 167 Gould v. Hulme, 3 C. & P. 625 . . . . . .191, 242 Gourley v. Plimsoll, L. R. 8 C. P. 3C2 ; 42 L. J. C. P. 121 ; 21 W. R. 683 ; 28 L. T. 598 538, 548 Goutard v. Carr (C. A.), 13 Q. B. D. 598 n.; 53 L. J. Q. B. 55, 407 n.; 32 W. R. 242 370 Govett v. Radnidge and others, 3 East. 63 . . . . . 516 Gower, Ex parte, Lord R., R. v. Barnard, 43 J. P. 127 133, 436, 567, 612 Grant v. Gould (1792), 2 H. Bl. 69 195 v. Secretary of State for India, 2 C. P. D. 445 ; 25 W. R. 848 ; 37 L. T. 188 196 v. Yates (C. A.), 2 Times L. R. 368 . . 98, 106, 113, 578, 582 Graves' Case, Cro. Eli/. 289 . . ■ . . . .126 Gray v. West et ux., L. R. 4 Q. B. 175 ; 9 B. & S. 196 ; 38 L. J. Q. B. 78 ; 17 W. R. 497 ; 20 L. T. 221 ; 33 J. P. 342 .. . 365 Greaves v. Keene, 4 Ex. P. 73 ; 2 7 W. R. 416 ; 40 L. T. 2r<; . . . 503 Green v. Button, 2 C. M. & R. 707 . . . . 15, 92, 145, 328 v. Chapman, 4 Bing. N. C. 92 ; 5 Scott, 340 . . . 50 v. Elgie and another, 5 Q. B. 99 . . . . 501 Greene v. N. Y. Dealers' Protective Association, 39 Hun (46 New York Supr. Ct.), 300 364 Greenfield's Case (Sir R.), Mar. 82 ; 1 Yin. Abr. 465 . . .82 Greenwood v. Prick, cited in Cro. Jac. 91 ; cited in 1 Camp. 270 5, 243, 270 Gregory v. The Queen (No. 1), 15 Q. B. 957 ; 14 L. J. M. C. 82 ; 15 Jur. ' 74; 5 Cox, C. C. 247 . . . 23,593 ,,. (No. 2.), 5 Cox, C. C. 252 . . . .102 and another v. Williams, 1 C. & K. 568 . . 395, 579 Greville ». Chapman and others, 5 Q. B. 731 ; 13 L. J. Q. B. 172 ; D. & M. 553; 8 Jur. 189 .,...•• 23 Griffin v. Moore, 43 Maryland. 246 . . . . . . 57 Griffiths v. Hardenburgh, 41 New York, 469 . . . .8 v. Lewis, 7 Q. B. 61 ; 14 L. J. Q. B. 197 ; 9 Jur. 370 ; 8 Q. B. 841 ; 15 L. J. Q. B. 249; 10 Jur. 711 . . 81, 114, 235, 237, 515 Grimes ». Lovel, 12 Mod. 242 ...... 65 Grimwade v. Dicks and others, 2 Times L. R. C27 . . . . 259 Grissell's Case, Aug. 1879 . . .... 489 Groenvelt®. Burwell, 1 Ld. Raym. 454; 12 Mod. 388 . . . . 188 Grove, et ux. V. Hart (1752), Sayer, 33 ; B. N. P. 7 . . 60, 395, 400 Guerdon?'. Winterstud, Cro. Eliz. 308 . . . . 56 Gurney v. lLongman (1807), 13 Ves. 493 ..... 340 Gutsole r. Mathers, 1 M. & W. 495 ; 2 Gale, 64; 5 Dowl. 60 ; 1 Twyr. & Gr. 694 • • 143, 528 (36) TABLE OF CASES. xxxvii (The paging refers to the [*] pages ) [*xxsvii.] Guy— Har. page Guv d. Gregory, 9 C. & P. 584 .... 15, 310, 326, 30!), 569 Gwynn c. 8. E. Rail. Co., 18 L. T. 738 . . . . 174, 257, 576 Haddon v. Lott, 15 C. B. 411 ; 24 L. J. C. P. 49 . . 140, 327, 329 Haire v. Wilson, 4 M. & R. 605 ; 9 B. & C. 6443 . . 21, 93, 269, 270 Hake v. Molton, Roll. Abr. 43 . . . . . .126 Hakewell v. Ingram, 2 C. L. II. 1397 . . . . 22, 582 Hall v. Hollander, 4 B. & G. 660 ; 7 D. & R. 133 . . . . 406 v. Smith, 1 M. & S. 287 . . . . . . 80, 83 v. Weedon, 8 D. & R. 140 . . . . . . . 123 Hall's (Arthur) Case (1581) . . * . . . .489 Hallinan v. Price, 27 W. It. 490 ; 41 L. T. 627 ... 371 Halsey v. Brotherhood, 15 Ch. D. 514 ; 49 L. J. Ch. 786 ; 30 W. R. 9; 43 L. T. 366 ; (C. A.) 19 Ch. D. 386 ; 51 L. J. Ch. 233 ; 30 W. It. 279 ; 45 L. T. 640 . . . . . 146, 342, 349 Hamilton v. Eno, 81 N. Y. 116 . . . . . . . 44 & Co. v. Johnson & Co. (C. A.) 5 Q. B. D. 263 ; 49 L. J. Q. B. 155 ; 28 W. R. 879 ; 41 L. T. 461 580 Hammersmith Skating Rink Co. v. Dublin Skating Rink Co., 10 Ir. R. Eq. 235 146^349, 359 Hamon v. Falle, 4 App. Cas. 247 ; 48 L. J. P. C. 45 . . 27, 68, 231 Hancocks i\ Lablache, 3 C. P. D. 197 ; 47 L. J. C. P. 514 ; 26 W. R. 402 ; 38 L. T. 753 . . . . . . . 401 Hand v. Winton, 38 N. Y. 122 73 v. 9 Vroom, 122 . . . . . .73 Hankinson e. Bilby, 17 M. re, 11 Ch. D. 168 ; 27 W. R. 485 ; 40 L. T. 207 . . . 499 v. Scholeheld, 6 T. R. 691 56, 62, 101, 123 (Sir Thomas) ». A si rigg, Cro. Jac. 184 ... 119 Holwood v. Hopkins (1600), Cro. Eliz. 787 . . . . 299, 331, .333 Home v. Bentinck, 4 Moore, 563 ; 2 B. & B. 130 . . 189, 195, 563 Homer ». Taunton, 5 H. & N. 661 ; 29 L. J. Ex. 318 ; 8 W. R. 499 ; 2 L T 512 . . . . • 22, 104, 111, 566 lioness and others r. Stubbs, 7 C. B. N. S. 555 ; 29 L. J. C. P. 220 ; 8 W. R. 188 ; 6 Jur. N. S. 682 . . . . . 538 Hooker v. Tucker, Holl, 39 ; Carth. 330 . . . . . 81 Hooper v. Truscott, 2 Scott, 672 ; 2 Bing. N. C. 457 . . 225, 270, 275 Hopper v. Warburton, 7 L. T. 722 . . . . . . 520 Hopwood i: Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. S7 . 75, 84, 205, 207, 212, 237, 299, 305, 308 Horner v. Marshall's Administratrix, 5 Munford (Virginia), 466 . . 406 Hort d Reade. Ir. R. 7 C. L 551 177, 636 Hoskyns, Ex parte, 33 J. P. 68 . . . . . .431 Houlden v. Smith, 14 Q. B. 841 ; 19 L. J. Q. B. 170 . . . . 187 Household aud another ». Fairburn and another, 51 L. T. 498 . 147, 350 How v. Prin (1702), Holt, 652 ; 7 Mod. 107 ; 1 Brown's P. C. 64 ; 2 Salk. 694 ; 2 Ld. Raym. 812 .... 71,72,121,241 Howard v Gosset, 10 Q. B. 359, 411 ; 14 L. J. Q. B. 367 ; 16 L. J. Q. B. 345 ; 11 Jur. 750 ; Car. & M. 380 ..... 490,501 Howe >\ Buffalo & Erie Ry. Co., 38 Barb. (New York) 124 . .8 v. Jones, 1 Times L. R. 19, 461 . . . . 223, 273, 281 Hovt v. McKenzie, 3 Barb. Ch. R. 320 (New York) . . 348, 357 Hubert, Hurler & Son, Ex parte, 47 J. P. 724 ; 15 Cox, C. C. 166 ; 74 Law Times (Newspaper), p. 229 . . . ' 374, 384, 590 Huckle v. Reynolds, 7 C. B. N. S. 114. . . . 56, 133, 399 Hudson v. Tooth, 2 P. D. 125 ; 35 W. R. 107 ; 35 L. T. 820 . 498, 502 Huff v. Bennett, 4 Sand. (New York), 120 . . . . 413 Hughes v. Gibson, Swansea Winter Assizes, 1886 .... 379 — — r. Porral and others, 4 Moore, P. C. C. 41 . . . 503 Hume r. Marshall. Times, Nov. 26, 1877 ; 42 J. P. 146 . 68, 78, 213, 285 Humphreys r. Miller, 4 C. & P. 7 243, 566 " r. Still well, 2 F. & F. 590 . . . . . 240 Humphrys v. Stanfeild (1638), Cro. Car. 469 ; Godb. 451 ; Sir W. Jones, 388 ; 2 Roll. Abr. 38 . . . . . .141 Hunt ». Algar and others, 6 C. & P. 245 . . 25, 99, 160, 313, 579 v. Bell, 1 Bing. 1 574 (39) xl TABLE OF CASES. l*xl.] (The paging refers to the [*] pages.) Hun— Joh. page Hunt r. Goodlake, 43 L. J. C. P. 54 ; 29 L. T. 472 . 24, 94, 100, 117, 572 v. Jones, Cro. -lac. 499 . . . . . .305 Hunter v. Sharpe, I F. & F. 983 ; 15 L. T. 421 ; 30 J. P. 149 . 27, 51, 101 Huntley v. Ward, G C. B. N. S. 514 ; 1 F. & F. 552 ; 6 Jur. F. S. 18 . 200. 200, 2132, 234, 269, 283, 287 Burtert v. Weines, 27 Iowa, 134 ..... 152,223 Huson v. Dale, 19 Mich. 17 . . . . . . 57''. Hutton v. Harrison, Button, 131 ...... 493 Buxley v. West London Extension Ry. Co., 17 Q. B. D. 373 . . . 367 F Anson v. Stuart, 1 T. R. 748 ; 2 Sm. L. C. 6th edit. p. 57 . 21, 132, 178, 53* Ingalls v. Allen, 1 Breese, 233 . . . . . . . 131 Ingram v. Lawson, 6 Scott, 755 ; 5 Bing. N. C. 66 ; 7 Dowl. 125 ; 1 Arn. 387 ; 3 Jur. 73 [as to plea of justification] .... 170 6 Bing. N. C. 212 ; 8 Scott, 471 ; 4 Jur. 151 ; 9 C. & P. 326 32, 133, 138. 29*4, 295, 307, 303, 313, 520, 570, 577 Inman r. Foster, 8 Wend. 602 ..... 165,170 Ireland v. Champneys, 4 Taunt. 884 . , . . . . 407 Irwin v. Brandwood, 2 H. & C. 960 ; 33 L. J. Ex. 257 ; 10 Jur. N. S. 370 ; 42 W. R, 438 ; 9 L. T. 772 . . . . 27, 68 Isaac, In re, Jacob v. Isaac (C. A.), 30 Ch. D. 418 ; 54 L. J. Ch. 1136 ; 33 W. R.845; 53 L. T. 478 . . . . . . 396 Isham /•. York, Cro. Car. 15 . ... . . . .72 Ivens v. Butler and Wife, 7 E. & B. 159 ; 26 L. J. Q. B. 145 ; 3 Jur. N. S. 334 . . .401 Jackson v. Adams, 2 Scott, 599 ; 2 Bing. N. C. 402 ; 1 Hodges, 78, 339 63 72, 277 v. Hopperton, 16 C. B. N. S. 829 ; 12 W. R. 913 ; 10 L. T. 529 . 182 203, 274, 299 v. Nawhy, 1 Ch. D. 86 ; 45 L. J. Ch. 53 ; 24 W. R. 92 . . 502 Jacob ». Isaac. In re Isaac (C. A.), 30 Ch. D. 418 ; 54 L. J. Ch. 1136 ; 33 W. R. 845 ; 53 P. T. 478 396 v. Lawrence, 4 L. R. (Ir.) 579 ; 14 Cox, C. C. 321 . . 231, 283 v. Mills, 1 Ventr. 117 ; Cro. Jac. 343 63 James v. Boston, 2 C. & K. 4 218, 226 v. Brook, 9 Q. B. 7 ; 16 L. J. Q. B. 17 ; 10 Jur. 541 . 68, 80 v. (as to costs) 16 L. J. Q. B. 168 . . . 369 v. James, L. R. 13 Eq. 421 ; 41 L. J. Ch. 253 ; 26 L. T. 568 . 341, 349 v.- Jolly, Bristol Summer Assizes, 1879 . . . -212 v. Rutlech, 4 Rep. 17 ... . 100, 118, 127, 132 Jarnigan v. Fleming, 43 Miss. 711 . . . . . . . 165 Jarvis v. Hatheway, 3 Johns. (N. Y. Supr. Ct.) 178 ... 243 Jefferies v. Duncombe, 2 Camp. 3 ; 11 Past, 226 . . .13, 20 Jekyll v. Sir John Moore, 2 B. & P. N. R. 341 ; 5 Esp. 63 . . 189 Jenkins v. Smith, Cro. Jac. 685 . . . . • .76 Jenkinson v. Mayne, Cro. Eliz. 384 ; 1 Yin. Abr. 415 . . 54 Jenncr and another r. A'Beckett, L. R. 7 Q. B. 11 ; 41 L. J. Q. B. 14 ; 20 W. R. 181 ; 25 L. T. 461 ; 36 J. P. 38 . 25, 31, 51, 81, 113 Jennings and Wife v. London General Omnibus Co., 30 L. T. 266 . 528 Jesson v. Bayes (1636), Roll. Abr. 63 .... 82,138 Joanne^, Count, ». Bennet, 5 Allen (87 Masa.), 169 . . . .219 Johns *. Gittings, Cro. Eliz. 239 ..... 82,173 r. James, 13 Ch. 1). 370 . . . . • 548 Johnson i\ Aylmer, Sir John, Cro. Jac. 126 . . . . 119 v. Browning, 6 Mod. 217 . . . . . .178 v. Evans, 3 Fsp. 32 ..... 194,222 r-io) TABLE OF CASES. xli (The paging refers to the [*] pages.) [* xll J l'AGE Johnson 1 ;-. Hudson & Morgan, 7 A. &. E. 233, n.; 1 II. & W. 680 159, 562 v. Lemmon, 2 Roll. Rep. 144 80 Palm^'i^p'' D." 258; 27 W. R. 941 . . . 587 r. St. Louis Dispatch Co., 65 Missouri, 539 ; 2 M. App. R. 565 ; 27 Vmer R 293 • *•■• Jolliffe, Ex parte,*,, v. Lefroy, L. R. 8 Q. B. 134 ; 42 L. J. Q. B 121; 21 W R 332 ; 28 L. T. 132 ; 36 J. P. 758 . . . 506, o07, 510 Jones, Ex parte, 13 Ves. 237 498 r. Bewicke, L. R. 5 C. P. 32 538 • v. Broadhurst, 9 C. B. 173 . . . . • • ?4U . r Curling and another (C. A.), 13 Q. B. J). 262 ; 53 L. J. Q. B. 373 ; 32 W. R. 651 ; 50 L. T. 349 367 >■ Davers »eZ Dawkes (1597), Cro. Eliz. 496 ; 1 Roll. Abr. 74 . 109, 132, 529 „. Heme, 2 Wils. 87 t 56, ,61 ,88, 122 r Hough (C. A.), 5 Ex. D. 115 ; 49 L. J. C. P. 211 ; 42 L. T. 108 581 . . v Littler, 7 M. & W. 423 ; 10 L. J. Ex. 171 . . 67, 80, 125, 568 v. McGovern, Ir. 1 C. L. 681 . ■ 253 . s Mackie, L. R. 3 Ex. 1 ; 37 L. J. Ex. 1 ; 16 W. R. 109 ; 17 L. T. 151 ; 31 J P. 760 541 . D Orckard, 16 C. B 614 ; 24 L. J. C. P. 229 ; 3 W. R. 554 . 599 r. Pritchard, 18 L. J. Q. B. 104 ; 6D. & L. 529 . . 525 r . Richards, 15 Q. B. D. 439 ; 1 Times L. R. 660 . 547, 551, 560, 661 r Scottish Accident Insurance Co. Ld., 17 Q. B. D. 421 ; 55 L. J. Q. B. 415; 55 L. T. 218 519 o. Stevens, 11 Price, 235 1T8, 559 r Thomas, 34 W. R, 104 ; 53 L. T. 678 ; 50 J. P. 140 ; 1 Times UK. 573 .... 154,204,247,289 v 2 Times L. R. 95 224 v Williams, 1 Times L. R. 572 .... 153, 212, 224 v. Young, 2 II. & C. 270 ; 32 L. J. Ex. 254 . . . .368 Justice v. Gosling, 12 C. B. 39 ; 21 L. J. C. P. 94 . . . . 5,6 Kain v. Farrer, 37 L. T. 469 ; W. N. 1877, p. 263 . Kane r. Mulvany, Ir. R, 2 C. L. 402 . . . C5, 136, Kearney v. Harrison, 10 L. R. Ir. 1 i' Keeblew. Hickeringill, 11 East, 576, n. .... Keene r. Ruff, 1 Clarke (Iowa), 482 . Keenholts v. Becker, 3 Denio, N. Y. 352 Keighley v. Bell, 4 F. & F. 763 Keiser v. Smith, 46 Amer. Rep 343 ..... Kelly o. Partington, 4 B. & Ad. 700 ; 2 N. & M. 460 ; 5 B. & Ad. 645 ; 3N.&I. 116 .... 90,91,114,279,328 Sherlock, L R. 1 Q. B. 686 ; 35 L. J. Q. B. 209 ; 12 Jur. N. S. 937 • 29 J. P. 725 ; 30 J. P. 791, 805 . . 40, 296, 318, 533 r Tinling, L. R. 1 Q. B. 699 ; 35 L. J. Q. B. 231 ; 14 W. R. 51 ; 13 L T. 255 ; 12 Jur. N. S. 940 ; 29 J. P. 725 ; 30 J. P. 791, 805 .26, 47 Kemp v. Neville, 10 C. B. N. S. 523 ; 31 L. J. C. P. 158 ; 4 L. T. 640 . 188 Kendillon v. Maltby, 1 Car. & M. 402 ;2 M.& Rob. 438 ; 1 Dow. & Clark, 495 ..... 168, 188,189, 334 Kennedy d. Hilliard, 10 Ir. C. L. R. 195 ; 1 L. T. 578. . . 185, 192 Kent v. Lewis, 21 W. R. 413 . . ... • • 365 v. Stone, Bristol Summer Assizes, 1880 . . . . 304 Kerr v. Gandy, 3 Times L. R. 75 ..... 341 v. Shedden, 4 C. & P. 528 208, 327 Kershaw v. Bailey, 1 Exch. 743 ; 17 L. J. Ex. 129 . 22s, 241, 245, 273, 289 Keyzor and another r. Newcomb, 1 F. & F. 559 . . .29, 160 Kielley ». Carson and others, 4 Moore,9 P. C. C. 03 . . 490, 491 Kilmore v. Abdoolah, 27 L J. Ex. 307 584 (41) 555, 563 257, 265 367 16 152 332 193, 195 319 xlii TABLE OF ('ASKS. [*xlii] (The paging refers to lae [*] pages.) Kim- Lee. PAf;1 J Kimmis v. Stiles, 44 Vermont, 351 . . . . 84 Kine r. Sewell, 3 M. & W. 297 . . . 205, 217, 224, 231, 236, 244 King?;. Bagg, Cro. Jac. 331 ....... 123 v. Hoare, 13 M. & W. 494, 504 522 v. Lake, 2 Ventr. 28 ; Hardres. 470 .... .3,76 r. Waring et ux., 5 Esp. 15 ..... 168, 230 0. Watts, 8 C. & P. 614 . . . 209,214,219,399,327 v. Wood, 1 ISTott & M. (South Car.) 184 . . . .23,61 and another v. Hawkesworth, 4 Q. B. D. 371 ; 48 L. J. Q. B. 484 ; 27 W. R. 660 ; 41 L. T. 411 368, 588 Ki.mahan v. McCullagh, Ir. R. 11 C. L. 1 . . . . 105, 242 Kirov v. Simpson, 10 Exch. 358 ; 3 Dowl. 791 . . . 188,540 Kirkpatrick v. Eagle Lodge, 26 Kansas, 384 ; 40 Amer. I?. 316 237, 243, 247 Kitcat r. Sharp, 52 L. J. Ch. 134 ; SI W. R. 227 ; 4S L. T. 64 339, 496 K linck v. Colby and others, 1 Sickel (46 N. Y.), 427 . . 224, 239 Knapp v. Fuller, 2.1 Vermont, 311 ; 45 Amer. li. 618 . . .129 Knight r. (alms, 1 A. & E. 43 ; 3 N. & M. 467 . . 218, 328, 330 v. Pursell, 49 L. J. Ch. 120 ; 28 W. R. 90 ; 41 L. T. 581 . . 369 and wife v. Lynch, 9 II. L. C. 577 ; 8 Jur. N. S. 724 ; 5 I, T. 201. 87, 88, 90, 91, 300, 307, 326, 327, 328, 329, 335, 336, 399 Kcenig v. Ritchie, 3 P. &. F. 413 52,234 Krebso. Oliver, 12 Gray (78 Mass.), 239 . . . .219 Kurtz v. Spence, 33 Ch. D. 579 ; 55 L. J. Ch. 919 ; 35 W. R. 26 ; 55 L. T. 317 351 Labouchere v. Shaw, 41 J. P. 788 . . . . • • 546 Lafone v. Smith, 3 H. & X. 735 ; 28 L. J. Ex. 33 ; 4 Jur. X. S. 10(14 . 324 Lake ». Kin"-, 1 Lev. 241 ; 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58 153, 186, 226, 246, 250, 290 Lamb. v. Minister, 10 Q. B. D. 110 ; 52 L. J. Q. B. 46 ; 31 W. II. 117 ; 47 L. T. 442 . . . . . • • • • 551 Lamb's Case (John), 9 Rep. 60 . . . . . 157, 433, 434 Laming v. Gee (C. A.), 28 W. R. 217 584 Lancaster v. French, 2 Str. 797 . . . . . .09, 82 Lane v. Applegate, 1 Stark. 97 . . . . .540 Langley, Ex parte, Ex parte Smith, Be Bishop, 13 Ch. I). 110 ; 49 L. J. Bkcy. 1 ; 28 W. R. 174 ; 4t L. T. 388 499 Langridge v. Campbell, 2 Ex. D. 281 ; 46 L. J. Ex. 277 ; 25 W. R. 351 ; 36 L. T. 64 370 Langrish v. Archer, 10 Q. B. D. 44 ; 52 L. J. M. C. 47 ; 31 W. R. 183 ; 47 L. T. 548 ; 47 J. P. 295 ; 15 Cox, C. C. 194 .. . . . 379 Large v. Large, W. N. 1877, p. 198 . . . . . . 587 Latimer v. Western .Morning News Co., 25 L. T. 44 . . . 416 Laughton v. Bishop of Sodor and .Man, L. R. 4 P. C. 495 ; 42 L. J. P. C. 11 ; 31 W. 11. 204 ; 28 L. T. 377 ; 9 Moore, P. C. C. N. S. 318 ; 37 J P. 244 . . . . . • 211,233,240,272,284 Law v. Harwood (1629), Sir. W. Jones, 106; Palm. 529 ; Cro. Car. 140 . 141 Lawless p.Anglo-Egyptian Cotton and Oil Co., L. R. 4 Q. B. 262 ; 10 B. & S. 226 ; 38 L. J. Q. B. 129 ; 17 W. R. 498 ; 33 J. P. 693 153, 240, 240, 286, 290, 559 Lawrence v. Smith, Jacob, 471 . . . • . . 8 v. Woodward, Cro. Car. 277 ; 1 Roll. Afcr. 74 . . . 55 Lay v. Lawson, 4 Ad. & E. 795 .... 174, 230, 247. 286 Lazarus v. Simmonds (1818), 3 Mer. 393, n. . . . .463 Leach's Case, 11 St. Tr. 307 ; 19 How. St. Tr. 1002 . . . 593 Leather Cloth Co., Limited v. American Leather Cloth Co., Limited, 4 De G. J. & S. 137 ; 33 L. J. Ch. 199 ..... 349 Lee v. Colver, W. N. 1876, p. 8 ; Bitt. 80 ; 1 Charley, 86 ; 20 Sol. J. 177 ; 60 L. T. Notes. 157 . . . . . ■ • 543 TABLE OF CASES. xliii (The paging refers to the [*] pages.) Lee — Lum, Lee i\ lluson, Peake, 223 Le Farm and another «. Malcolmson, 1 II. L. & C. 63 r L. T. (O. S.) 61 Lefroy v. Burnside (No. 1), 4 L. R. Ir. 340 ; 41 L. T 260 .... r . (No. 2), 4 L. R. Ir. 556 Lentuer v. Merfleld (C. A.), Times, May 6th, 1880 . Lessee Sturgeon v. Douglass, 10 Ir. L. R. 128 a. Leversage v. Smith, Cro. Eliz. 710 Levefs Case, Cro. Eliz. 289 . Levi v. Milne, 4 Bing. 195 ;' 12 Moore, 418 . Levy v. Lawson, E. B. & E. 560 ; 27 L. J. Q. B. 2 ! v. Moylan, 19 L. J. C. P. 308 ; 1 L. M. & P. 307 Lewes v. Walter (1617), 3 Bulstr. 225 ; Cro. Jac. 40: 444 . (Earl of) r. Barnett, Ch. D. 252 ; 47 L. J. 101 ..... Lewis v. Clement, 3 B. & Aid. 702 ; 3 Br. & B. 297 [* xliii.] PAGE . 227 ; 8 Ir. L. R.418; 13 30, 130, 307, 336, 417, 418 199 ; 14 Cox, C. C. 553, 659 . 36, 37, 43, 171 . . 205 . 79, 92, 104, 131, 578, 579, 497 56 400 582 25 1 510 Coke, Cro. Jac. 424 . Few, 5 Johns. 1 ... Levy, E. B. & E. 537 ; 27 L. J. Q. B. 282 . . 50 413; Roll. Rep. . 132, 105 Ch. 144; 2G W. R. . . . 500 7 Moore, 200 . 2s, 99, 173, 231, 539 . 121 . . 44 ; 4 Jur. N. S. 970 . 44, 99, 176, 192, 248, 250, 252, 258, 261 40, 3G9 104, 176, 257, D. Walter, 4 B. & Aid. 605 and Herrick v. Chapman, 2 Smith (16 N. Y. R.), Lewknor «. Cruchleyand wife, Cro. Car. 140 Leycroft v. Dunker, Cro. Car. 317 .... Leyman v. Latimer and others, 8 Ex. D. 15, 852 ; 46 L. J. Ex. 705 ; 47 L. J. Ex. 470 ; 25 W. R. 751 ; 26 W. R. 305 ; 37 L. T. 360, 819 ; 14 Cox, C. C. 51 ; 42 J. P. 104 . 22, 59, 172, 178, 538, 545, 641 260 273 55 80 499 349 2, 223 537 505 72 519 ;L. T. 216, 282 . 190 . 518, 521 46, 496, 497 . 583 79 Liberia (Republic of) v. Roye, 1 App. Cas. 139 ; 45 L. J. Ch. 297 ; 24 W. R. 967 ; 34 L. T. 145 . . . . . . Liebig's Extract of Meat Co. Limited v. Anderson, 55 L. T. 206 . Lightbody v. Gordon, 9 Scotch Sessions Case, 4th Series, 934 . 22S Li! lie v. Price, 5 A. & E. 645 Lincoln (Earl of) v. Fisher, Cro. Eliz. 581 ; Ow. 113 ; Moore, 470 Lindsey v. Smith, 7 Johns. 359 ..... Lisbon-Berlyn Gold Fields, Limited v. Heddle, 52 L. T. 790 Lister r. Ferryman, L. R. 4 11. L. 521 ; 39 L, J. Ex. 177 ; 269 ....... Little d Pomeroy, Ir. R. 7 C. L. 50 Littleboy v. Wright, 1 Lev. 69 ; 1 Sid. 95 Littler v. Thompson, 2 Beav. 129 ..... Lloyd v. Jones, 7 B. & S. 475 ..... London v. Eastgate, 2 Rolle's Rep. 72 . London & Blaekwall Ry. Co. v. Cross (C. A.), 31 Ch. D. 854 ; ! Ch. 313 ; 54 L. T. 309 . Long v. Chubb, 5 C. & P. 55 ..... Lovejoy v. Murray, 3 Wallace (Sup. Ct.), 1 Lovett v. Weller, 1 Roll. R. 409 .... Lowe v. Harewood, Sir W. Jones, 196 ; Cro Car. 140 v. Holme and another, 10 0. B. D. 286 ; 52 L. J. Q. B. W. R. 400 Lovd c. Pearse, Cro. Jac. 424 Lucan (Earl of) v. Smith, 1 II. &. N. 481 : 23 L. J N. S. 1170 ...... Lucas v. Flinn, 35 Iowa, 9 . Luckerman i\ Sonnenschein, 32 Freeman (62 Illinois), 115 Luckumsev Rowji >\ Hurburn Nursey and others, I. L. R. 5 Bom. 580 15, 335 Lnmby v. Alldav, 1 Tyrw. 217 ; 1 C. vfc J. 301 . . 68. 80, 85, 21)6 Lnmley r. Gye, 2 E. 53 ; 43 J. P. 38 . . . . 159, 414, 415, 434. 602, 689 4 Q. B. D. 42 ; 43 L. J. Q. B. 113 ; 27 W. R. 313: 39 L. T. 536 ; 14 Cox, C. C. 185 ... 7, 9, 159, 414, 415, 434, 602 689 — v. Holland, 4 T. R, 457 ...... 596 — v. Holmes, 12 Q. B. D. 23 ; 49 L. T. 540 . . . . . 600 — v. Holyoake, Gloucester Assizes, 1842 . . . 445, 453, 460 — v. Hone, Wm., 1817 . . . . . . . . 445 — v. Holt, 5 T. It. 436 ... . 313, 433, 577, 601, 603, 607 — v. Thomas, 8 J. P. 212 . . . . . . . 112 — v. Hornbrook, Selwyn's N. P. 12th ed. p. 1065 ; 13th ed. p. 1000 . 432 — v. Home (1777); 11 St. Tr. 264 ; Cowp. 672 ; Howell's St. Tr. 651 . 97, 101, 102, 483, 594, 614, 576 — v. Hunt and Leigh Hunt, 31 Howell's St. Tr. 408 ; 2 Camp. 583 ; 3 Chit. Cr. L. 881 483 — v. and others, 3 B. & Aid. 444 . . . . .598 _ „. , 3 B. & Aid. 566 . . . . . . 380 — v. Hive, Dig. L. L. 82 . . . . . . .444 — d. Ingram, 1 Salk. 384 . . . . . . . 404 — v. Jackson, 10 Ir. L. R. 120 . . . . . . 431 — v. James, 5 B. & Aid. 894 501 — v. Jeffe, 15 Vin. Abr. 89 .493 — v. Jenour, 7 Mod. 400. ...... 425, 429 — v. Jewell, 7 E. & B. 140 ; 26 L. J. Q. B. 177 . . . . 598 (53) liv TABLE OF CASES. L*liv.] R. — v. — *. V. V. — V. — V. V. (The paging refers to the [*] pages. ) t PA OK Johnson, Hon. Robt., G East, 58?, ; 2 Smith, 591 ; 29 How. St. Tr. 103 686 (1805), 7 East, 65 ; 3 Smith 94'. 24 How. St. Tr. 103 . 483, coo Jolliffe, 4 T. R. 285 429 495, 501 . 595 . 598 69 • 480 34 . 587 190, 431 . . 608 . 428 411, 434, 480, 638 . 242 174, 538, 576, 603 Jones, 1 Stra. 185 . 2 Camp. 132 Joule, 5 A. & E. 539 Kearsley, Dig. L. L. J. Q. B. 470 Kettle. Brown v. Dorse, 17 Q. B. D. 761 ; 55 L W. R. 776 ; 54 L. T. 875 . v. Kiernan, 7 Cox, C. C. 6 ; 5 Ir. C. L. R. 171 |. r. Kinglake, W. N. 1870, p. 130 v. Kinnersley, 1 Wm. Bl. 294 . v. Knell, 1 Barnard. 305 v. Knight (1736), Bac. Abridg. A 2 (Libel) v. Labouchere (Lambri's Case), 14 Cox, C. C. 419 v. (Vallombrosa's Case), 12 Q. B. D. 320 ; 53 L. J. Q. B. 362 ; 32 W. R. 861 ; 50 L. T. 177 ; 15 Cox, C. C. 415 ; 48 J. P. 165 423, 110, — v. Lambert and Perry, 2 Camp. 398 ; 31 How. St. Tr. 340 314 Langley, 2 Lord Raymond, 1029 ; 2 Salk. 697 ; 6 Mod 654 . Larkin, Dears. C. C. 365 ; 23 L. J. M. C. li Larrieu, 7 A. & E. 277 Latimer, 15 Q. B. 1077 ; 20 L. J. Q. B. 129 ; 15 Jur Laurence, 12 Mod. 311 ; Dig. L. L. 121 Lawson, 1 Q. B. 486 ; 1 Gale & D. 15 Leafe, Andrews, 226 Ledger, Times, Jan. 14, 1880 . Lee, 12 Mod. 514 . 4 Esp. 123 . Lefroy, Ex parte Jolliffe, L. R. 8 Q. B. 134 ; 42 L. J 21 W. R. 332 ; 28 L. T. 132 Leigh and John Hunt, 3 Chit. Cr. L. 881 Leng, 34 J. P. 309 .... Liverpool (Mayor of) and others, 41 L. J. Q. B. 175 389 ; 26 L. T. 101 Llaufaethlv, 2 E. &B. 940 ; 23 L. J. M. C. 33 ; 17 Jur. Lofield, 2 Barnard. 128 . Lord Mayor of London, and Vance, 16 Q. B. D ' 428, 429, 431 25, 97, 98, 480 579, 601, 604 125 ; Holt . 500, 509 . 606 . . 428 609, 614 . . 483 . 428 . . 506 .50 . . 509 249, 260 Q. B. 121 ; 506, 507, 510 . 430 20 W. R. 1123 22 609 564 257 L. J. M. C. 118 ; 34 W. R. 544 614 ; 16 Cox, C. C. 81 Lovett, 9 C. & P. 462 Lowe and Clements, 8 Exeh. 697 M'Laughlin, 14 J. P. 291 . Mann, 4 M. & S. 337 . Marsden, 4 M. & S. 164 ; 3 Russ. Marshall, 4 E. & B. 475 Marl in, 2 Camp. 100 James, 5 Cox, C. C. 356 Matthews (1719), 15 How. St. Tr. 1323 Mayo. 1 Keb. 508; 1 Sid. 144 . Mead, 4 Jur. 1014 . Mein, 3 T. R. 597 54 L. T. 761 ; 2 Times L. R. 482 ; 50 J. P. — v. Mitchell. J. (indictment), 11 L. T. (O. S.) 112 — v. (information), 3 Cox, C. C. 93 — v. Moore, 3 B. & Ad. 188 .... — v. Morton. 1 Dowl. N. S. 543 — v. Moxon, 2 Mod. St. Tr. 356 — v. Murphy, 8C.& P. 297 .... — v. Newhouse, 22 L. J. Q. B. 127 ; 1 L. & M. 129 ; 17 J. P. 397 156, 334, 434, 482, 483, 560, 599 ; 22 L. J. Ex. 262 . . . 525 426 605 on Crimes, 209 . . . 593 . . 431, 610 . . 601 . 497 . . 102 , . 505 . . 429 . 611 . 483, 686 483, 597, 686 . . 329 . 598 . 445, 460 66, 595 57 . . 609 (54) TABLE OF CASES. lv B. K. v. 22 W. R C. 358 162 490 45 497. 423, (The paging refers to the [*] pages.), Newman, 1 El. & Bl. 268, 558 ; 22 L. J. Q. B. 156 ; Dears. C. C. 17 Jur. 617 ; 3 C. & K. 252 . 172, 175, 313 17 J. P. 84 Niblett (not reported) .... Norris, 2 Ld. Kenyon, 300 Nottingham Journal, 9 Dowl. 1042 . Nun, 10 Mod. 186 . Nutt (Eliz.) [1728], 1 Barnard. 306 ; Fitzg. 47 (Richard) [1754], Dig. L. L. 68 Oastler, L. R. 9 Q. B. 132 ; 43 L. J. Q. B. 42 . T T R°>0 Odgers, 2 Moo. & Rob. 479 ... 0'Do»;herty, 5 Cox, C. C. 348 Onslow and others, L. R. 9 Q. B. 219 ; 12 Cox, C Orme and Nutt, 1 Ld. Raym. 486 ; 3 Salk. 224 . Osborn, 2 Barnard. 138, 166 ; Kel. 230 Owen, 18 Howell's St. Tr. 1203, 1228 ; Dig. L. L. 67 Paine, Carth. 405 . Samuel (1695), 5 Mod. 167 Thomas, 22 Howell's St. Tr. 358 Palmer, 5 E. & B. 1024 . Paty, 2 Ld. Raym. 1108 Peacham. Cro. Car. 125 ; 2 Cobbett's St. Tr. 870 Pearce, Peake, 75 Peltier, 28 Howell's St. Tr. 617 . Penny, 1 Ld. Raymond, 153 . . Perry, 15 Cox, C. C. 169 . . Petcherini, 7 Cox, C. C. 79 . . Philipps (1805), 6 East, 464. . Pisrott, 11 Cox, C. C. 44 . Pfumer, Russ. & Ry. 264 . . Pocock, 2 Str. 1157 . Pooley (Bodmin, 1857), Digest of Crim. Law, 97 Price," Swansea Assizes, Aug. 9th, 1881 Pym rel Prin (1664), Sid. 219 ; 1 Keble, 773 . Queen's County (JJ. of), 10 L. R. Ir. 294 ; 15 Cox, C. C. [*lv.] 85; , 577, *607. 414, ; 29 340, 501, 424, 483. 5, 155 490 409 204, 212 446 60 487 446 149 Rainer, 2 Barnard. 293 ; Dig. L. L. 125 . Ramsey and Foote, 48 L. T. 733 ; 15 Cox, C. C. 231 ; 1 C. & 126 . 415, 436, 442, 446, 459, 463, 464, 679, Rea (1), 9 Cox, C. C. 401 ; 17 Ir. C. L. R. 584 . — (2), 2 L. R. Ir. 429 ; 14 Cox, C. C. 139 — (3), 4 L. R. Ir. 345 ; 14 Cox, C. C. 256 Read (1708), Fortescue, 98 ; 11 Mod. 142 . Redman, L. R. 1 C. C. R. 12 ; 39 L. J. M. C. 89 Reeves, Peake's Add. Cas. 84 ; 26 Howell's St. Tr. 530 E. 688- 431, 603 673 608 684 428 428 506 480 487 599 596 496 512 425 429 489 433 435 487 598 501 477 600 , 430 506 , 284 , 455 , 425 , 603 600 506 459 594 483 488 509 489 o. Revel, 1 Str. 420 ... v. Roberts and others, 3 Keble, 578 v. Rogers, 2 Ld. Raym. 777 ; 7 Mod. 28 v. Rosenberg, Times, Oct. 27th and 28th, 1879 v. Rosenstein, 2 C. & P. 414 ■ v. Rudge, (C. A.) 16 Q. B. D. 459; 55 L. J. M 207 ; 53 L. T. 851 ; 50 J. P. 755 • v. Ryder-Burton, 38 J. P. 758 . ■ v. St. John, Oliver (1615), Noy, 105 • v. Salisbury, 1 Ld. Raym. 341 . ■ v. Saunders, Sir T. Raym. 201 ■ v. Scofield (1784), Cald'ecott, 397 ■ v. Seton, 7 T. R. 373 . C. 112 ; 34 W ■704 597 511 507 454 427 488 604 506 . 13 494, 506, 509 25, 487, 483, 489, 505, 472 R. 562 598 608 480 191 21 57 599 (55) lvi TAIiLIC OF CASES. [*lvi] R. K. v. (The paging refers to the [*] pages.) 430, n. '. 308 St. Asaph), 4 Doug]. 73 ; 3 T. R. 428, Scymore, Winchester Spring Assizes, 1880 ; Times, April 23rd, 1 880 — r. She^bbeare, 3 T. R. — r. Shimmens, 34 .1. I — v. Shipley (Dean of St. Tr. lot:', . — r. Shuckburgh, 1 Wils. 29 .... — v. Sidney, Algernon, 9 Howell's St. Tr. 817, 807; 3 Ilarg. St 807 ; 4 St. Tr. 197 . — r. Skinner, Lofft, 55 .... — v. Skipworth, L. R. 9 Q. B. 230 ; 12 Cox, C. C. 371 — r. Slaney, 5 C. & P. 213 . — v. Smithson, 4 B. & Ad. 8G2 . — v. Southerton, 6 East, 126 . — v. Southwell (1842) ..... — v. Sparrow, 2 T. R. 198 . — v. Spencer, 8 Dowl. 127 ' — v. Spragg and another, 2 Burr. 929 — v, Stanger, L. R. 6 Q. B. 352 ; 40 L. J. Q. B. 96 ; 19 W L. T. 266 ; 35 J. P. 84, 580 — v. Steel, 1 Q. B. D. 482 ; 45 L. J. Q. B. 391 ; 24 W. R. 638 ; 34 L 283 ; 13 Cox, C. C. 159 ; 40 J. P. 407 179 424, 479 . 608 21 604, 605 . 592 Tr. . 43-4, 477 . 18!), 190, 192 494, 497, 501 560, 562, 599, (500 . . 612 . 427 . . 445 9, 523 . . 598 . 607 R. 640 ; 24 559, 611 T. — V. — (C. A.) 2 Q. B. D. 37 L. T. 534 — V. Steward, 2 B. & Ad. 12 V. Stockdale, 22 Howell's St. Tr V. Stuart, 3 Chit. Crirn. L. 887 V. Sullivan, 11 Cox, C. C. 44 . — V. Sully, 12 J. P. 530 V. Summers, 1 Lev. 139 — t\ Sutton, 4 M. & S. 548 . V. Tanfleld, 42 J. P. 423 '0. Taylor, 3 B. & C. 502 ; 5 D. . — «. - — 1 Ventr. 293 ; 3 Keb. 46 L. J. M. C. 1 ; 25 W. R. 238 25, 45, 469, 482, 484, v. Templar, 1 Nev. & P. 91 & R. 422 607 ; Tremayne's Entries, 226 452, 454, 455, 442 — v. — v. — v. — v. — V. V. V. V. -^ V. V. V. - V. V. V. - V. - V, - V. - V. 15 10 Cox, C. C. 356 49 L. J. M. C. 57 28 W. R. Tr. 1095 102, 424, 423, 424, Thomas, 4 M. & S Thompson (1869) Topham, 4 T. R. 126 Townsend, 4 F. & F. 1089 Truelove, 5 Q. B. D. 336 L.T. 250; 14 Cox, C. C. 408 Truscott (not reported) .... Tucker, Rv. & M. 134 . Tutchin (1704), 5 St. Tr. 527 ; 14 Howell's St. Raym. 1061 ; .1 Salk. 50 ; 6 Mod. 268 ; Holt, 424 Unwin, 7 Dowl. 578 Veley, 4 F. & F. 1117 . Vincent, 9 C. & P. 91, 109 . Vint, 27 How. St. Tr. 627 Waddington (1800), 1 East, 143 (1822), 1 B. & C. 26 Waite, 1 Wils. 22 . Walter, 3 Esp. 21 Ward, 10 Cox, C. C. 42 Watson (1808), 1 Camp. 215 James (1817), 2 .Stark, 116 . and others (1788), 2 T. R. 199 Webster, 3 T. R. 388 Wegener, 2 Stark. 245 . We'ltje, 2 Camp. 142 . Whailey and others, L. R. 9 Q. B. 219 ; 12 Cox, C. C. 358 (56) 614 31 487, 492, 593, 35 . 614 . 561 . 489 . 472 604 609 . 592 . 601 45, 429, 608 . 596 . 443, 451 462, 463, 696 598 . . 597 . 446 433, 595, 605 . 439 413 ; 42 . . 474 . 560 . . 601 2 Ld. 483, 484, 594 . . 599 52, 234 . . 380 . 430 . 425, 606 443, 466, 697 . . -28 5, 159, 414, 435 . . 427 . 600 . . 562 97, 429, 493 . . 611 432, 594, 599 . . 505 497, 501, 512 TABLE OF CASES. lvii (The paging refers to the [*] pages.) [* lvii.] R.— Rob. . PAGE R. v. White and another, 1 Camp. 359, n. 86, 429, 493 — V. Whitehouse and Tench, Dears. C. C. 1 . . . . 607 — v. Wiatt (1722), 8 Mod. 123 . . . . . . 162, 435 — v. Wilkes, 4 Burr. 2527, 2568 ; 2 Wils. 151 ; Dig. L. L. 69 ; 19 How. St. Tr. 1075 . . . .445, 471, 480, 592, 596, 613 — v. Willett, 6 T. R. 294 . . . . . . .611 — v. Williams, 13 How. St. Tr. 1387 . . . . . . 5 — v. 26 How. St. Tr. 656 . . . . 443, 453, 466 — v. Lofft, 759 ...... . 608 — v. - ■ 2 Roll. Rep. 88 . . . . .478 _ 0. Elizabeth, W. N. 1870, p. 120 . . . . 608 — v. J. A. (1822), 5 B. & Aid. 595 ; Townsend's Mod. St. Tr . 231 . . . . . 424, 429, 612 — v. John, Dig. L. L. 69 . . . . . 480 — v. Sir William (1686), 2 Shower, 471 ; Comb. 18 ; 13 How St. Tr. 1370 . . . . . . . . 185 — v. Wilson, 14 L. J. M. C. 3 . . . . . . . 599 — v. 2 Moo. C. C. 52 . . . . . . 62, 123 — v. 4 T. R. 487 . . . . . . . 608 — v. Wintcrbotham, 22 How. St. Tr. 823, 875 . . . . 487 — v. Withers, 3. T. R. 428 . . . . . . 604, 608 — v. Woodfall, 5 Burr. 2661 ...... 480, 604. — v. Woolmer, 12 A. & E. 422 . . . . . 611 — v. Woolston, 2 Str. 834 ; Fitzgib. 64 ; 1 Barnard. 162 . 443, 454, 455, 462, 463, 697 — v. World, The, 13 Cox, C. C. 305 613 — v. Wrennum, Pop. 135 ....... 493 — v. Wright (1799) 8 T. R. 293 . . . . 185, 248, 265, 430 — v. 3 Mer. 386, n. ...... 445 — v. Wrightson, 2 Salk. 698 ; 11 Mod. 166 ; 2 Roll. Rep. 78 ; 4 Inst. 181 505 — v. Yates, 11 Q. B. D. 750 ; 52 L. J. Q. B. 778 ; 48 J. P. 102 ; 15 Cox, C. C. 272 384, 590 — v. (C. A.), 14 Q. B. D. 648 ; 54 L. J. Q. B. 258 ; 33 W. R. 482 ; 52 L. T. 305 ; 15 Cox, C. C. 688 ; 49 J. P. 436 ; 1 Times L. R. 193 .... 384, 590, 6' — v. James, 12 Cox, C. C. 233 . . . 24, 115, 594 — v. and another, 12 Cox, C. C. 441 . . . . 426 Reynolds v. Harris, 3 C. B. N. S. 279 ; 28 L. J. C. P. 26 . . 369 Rhodes v. Liverpool Investment Co., 4 C. P. D. 425 . * . 587 Rice v. Pidgeon, Comb. 161 . . . . . .82 Richards v. Richards, 2 M. & Rob. 557 . . . 166, 175, 235, 237 Richardson v. Allen, 2 Chit. 657 . . . . . 62, 84, 124 v. Willis, L. R. 8 Ex. 69 ; 42 L. J. Ex. 15, 68 ; 27 L. T. 828 ; 12 Cox, C. C. 298, 351 .. • . . 609 Richmond (Duke of) v. Costelow, 11 Mod. 235 . . . 137 Riddell v. Clvdesdale Horse Society, 12 Court of Session Cases (4th series), 976 ...... . 256, 339, 344 Riding v. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 W. R. 487 ; 34 L. T. 500 . . 15, 79, 80, 85, 87, 92, 303, 304, 331, 332, 395, 410 Riley v. Byrne, 2 B. & Ad. 779 . . . . . . 578 Rily v. Lewis (1640), 1 Vin. Abr. 396 .... 86, 87 Risk Allah Bey v. Johnstone, 18 L. T. 620 . . . 324, 582 r. Whitehurst and others, 18 L. T. 615 . 46, 263, 311, 574 Roach v. Garvan, Be Read and Huggonson, 2 Atk. 469 ; 2 Dick. 794 . 124, 131, 338, 351, 494, 496, 520 Roberts v. Brown, 10 Bing. 519 ; 4 M. & Scott, 407 ; 6 C. & P. 757. 46, 177, 260, 557 v. Camden, 9 East, 93 .... 56,58,97,126 v. Herbert, Sid. 97; S. C, sub nom. Caus v. Roberts, 1 Keb. 418 60, 86 Roberts v. Richards, 3 F. & F. 507 . . . . . -222 (57) lviii TABLE OF CASES. [*lviii.] (The paging refers to the [*] pages.) Kob-San. . ^ page Roberts and Wife v. Roberts, 5 B. & S. 384 ; 33 L. J. Q. B. 249 ; 10 Jur. N. S. 1027 ; 12 W. R. 909 ; 10 L. T. 602 . 87, 88, 300, 301, 336 Robertson v. Labouchere, 42 J. P. 710 ..... 496 v. M'Dougall, 4 Bing. 670 ; 1 M. & P. 692 ; 3 C. &. P. 259. 231, 285 - — v. Wylde, 2 M. & Rob. 101 . .... 273,311 Robinson v. Jermyn, 1 Price, 11 . . . . .23 v. Jones, 4 L. R. Ir. 391 . . 152, 245, 286, 288, 559 v. Marchant, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 156 . 13, 80, 336, 418 v. May, 2 Smith, 3 . . . . . . 169, 226 Robinson's Case, 1 Brown, 643 ...... 446 Robshaw v. Smith, 38 L. T. 423 . . . . 205, 208, 620 Rodgers v. Kline, 56 Miss. 808 ; 31 Amer. R. 389 . . . . 78 Rodriguez v. Tadmire, 2 Esp. 721 . . . . . . 321 Roe v. New York Press and another, 75 Law Times (Newspaper), 31 . 555 Rogers r. Clifton (Sir Gervas), 3 B. & P. 587 . 203, 236, 274, 279, 570 v. Gravat, Cro. Eliz. 571 . . . . . . 60 Rolin and another r. Stewart, 14 C. B. 595 ; 23 L. J. C. P. 148 ; 18 Jur. 576 ; 2 C L. R. 759 13 Rollins v. Hinks, L. R. 13 Eq. 355 ; 42 L. J. Ch. 358 ; 20 W. R, 287 ; 26 L. T. 56 146, 348, 349, 357 Root ». King, 7 Cowen, 613 ; 4 Wend. 113 . . q . . 44 Roper v. Streater, Skin. 234 ; 1 Mod. 217 . . . . . 340 Rose v. Groves, 5 M. & Gr. 618 . . . . . . 307 Roselle v. Buchanan, 16 Q. B. D. 656 ; 55 L. J. Q. B. 376 ; 34 W. R. 488 ; 2 Times L. R. 367 . . . . . . 534 Ross v. Lawrence (1651), Sty. 263 ..... . 529 Rotheram v. Priest, 49 L. J. C. P. 104 ; 28 W. R. 277 ; 41 L. T. 588 . 543 Routh v. Webster, 10 Beav. 561 . . . . . 352, 354, 358 Rowcliffe v. Edmonds et ux., 7 M. & W. 12 ; 4 Jur. 684 . . . 55 Rowe, Ex parte, 20 L. T. (Old S.) 115 ; 17 J. P. 25 428 v. Roach, 1 M. & S. 304 . 530 Ruckley v. Kiernan, 7 Ir. C. L. R. 75 . . . . .284 Ruel v. Tatnell, 29 W. R. 172 ; 43 L. T. 507 ; 45 J. P. 175 . 82, 101 , 113, 115, 567 Rumsey v. Webb et ux., Car. & M. 104 ; 11 L. J. C. P. 129 . 79, 215, 239, 299, 312 Runkle v. Meyers, 3 Yeates (Penn.), 518 . . . . . 165 Russell (Sir William) v. Ligon, 1 Roll. Abr. 46 ; 1 Vin. Abr. 423 . . 56 and another v. Webster, 23 W. R. 59 . . 29, 31, 104, 420 Rustell v. Macquister, 1 Camp. 49 n. . . . . 277 Rutherford v. Evans, 6 Bing. 451 ; 8 L. J. (Old S.) C. P. 86 ; 4 M. & P. 163 ; 4 C. & P. 74 . 21, 66, 309, 331, 332, 333, 529, 558 v. Wilkie, 41 L. T. 435 . . . . . 372 Ryalls v. Leader and others, L. R. 1 Ex. 296 ; 4 H. & C. 555 ; 35 L. J. Ex. 185 ; 12 Jur. N. S. 503 ; 14 W. R. 838 ; 14 L. T. 563 ; 30 J. P. 520 . . . - 410 St Nazaire Co.. In re, 12 Ch. D. 88 ; 27 W. R. 854 ; 41 L. Salm-Kyrburg ». Posnanski, 13 Q. B. D. 218 ; 53 L. J. Q. W. R. 752 . Salmon v. Isaac, 20 L. T. 885 .... Salter v. Browne, Cro. Car. 436 ; 1 Roll. Abr. 37 Sampson v. Mackay, L. R. 4 Q. B. 643 ; 10 B. & S. 694 ; 38 245 ; 17 W. R. 883 ; 20 L. T. 807 ; 33 J. P. 646 . " Sanderson v. Caldwell, 45 N. Y. 398 ... Sandford v. Bennett, 24 New York, 20 . Sands v. Child and others, 3 Lev. 352 (58) T. 110 369 15. 428; 32 503 150, 256, 262 59, 87 L. f. Q. B. 365 73 408 410 TABLE OF CASES. lix (The paging refers to the [*] pages.) [* lix.] San— Sib. - facie Waner v. Bilton, 11 Ch. D. 416 ; 48 L. J. Ch. 545 ; 27 W. R. 472 ; 40 L. T. 134 . . 371 Saram (Bishop of) v. Nash.B. N. P. 9 ; Willes, 23 . . . 74 Saunders v. Bate, 1 H. & N. 402 . . . . 528, 564 v. Edwards, 1 Sid. 95 ; 1 Keble, 389 ; Sir T. Eaym. 61 . 105, 521 V. Mills, 3 M. & P. 520 ; 6 Bins?. 213 . 160, 176, 257, 315 Savage v. Robeiy, 5 Mod. 398 ; 2 Salk. 694 . . .62, 82, 84 Savile v. Jardine, 2 H. Bl. 531 . . . . . 62, 82, 84 Savile et ux. v. Sweeney, 1 N. & M. 254 ; 4 B. & Ad. 514 . 336, 399 Saxby v. Easterbrook, 3 C. P. D. 339 ; 27 W. It. 188 . . 262, 340, 341 351, 359, 361 Say & Seal (Viscount) «. Stephens, Ley, 82 ; Cro. Car. 135, 535 ; Litt. 342 ....... 136, 520 Sayer v. Begg, 15 Ir. C. L. R. 458 . . . . . . 237 Scarll v. Dixon, 4 F. & F. 250 . . . 212, 227, 228, 245, 273 Scot et ux. v. Hilliar, Lane, 98 ; 1 Yin. Abr. 440 . . . 55, 124 Scott v. Sampson, 8 Q. B. D, 491 ; 51 L. J. Q. B. 380 ; 30 W. R. 541 ; 46 L. T. 412 ; 46 J. P. 408 ! . . 312, 313, 315, 321, 542, 577 v. Seymour (Lord), 1 II. & C. 219 ; 31 L. J. Ex. 457 ; 32 L. J. Ex. 61 ; 8 Jur. N. S. 568 ; 10 W. R. 739 ; 6 L. T. 607 . . 518 v. Shepherd, 1 Sm. L. C. 8th ed. 466 ; 2 Wm. Bl. 892 ; 3 Wils. 403 331 v. Stansfield, L. R. 3 Ex. 220 ; 37 L. J. Ex. 155 ; 16 W. R. 911 ; 18 L. T. 572 ; 32 J. P. 423. .... 188, 544 Scripps v. Foster, 39 Mich. 376 ; 41 Mich. 742 . . . . . 44 v. Reilly, 38 Mich. 10 .... 159, 311, 323 Seaman v. Bigg, Cro. Car. 480 . . . . . 79 v. Netherclift, 1 C. P. D. 540 ; 45 L. J. C. P. 798 ; 24 W. R. 884 ; 34 L. T. 878 ; 41 J. P. 389 . 131, 182, 191 193, 560, 644 v. (C. A.) 2 0. P. D. 53 ; 46 L. J. C. P. 128 ; 25 W. R. 159 ; 35 L. T. 784 . . . 131, 182, 191, 193, 560, 644 Secor v. Harris, 18 Barb. 425 ...... 77 Seeley v. Fisher (1841), 11 Sim. 581 . . . . .344, 353 Senior v. Medland, 4 Jur. N. S. 1039 . . 234, 241, 245, 283, 285 Serle v. Maunder (1620), 1 Rolle, Abr. 72 . , . . . . 58 Seroka and wife v. Kattenburg and wife, 17 Q. B. D. 177 ; 55 L. J. Q. B. 375 ; 34 W. R. 542 ; 54 L. T. 649 . . . . 400 Seven Bishops' Case, 4 St. Tr. 300 .... . 562, 600 Severance v. Civil Service Supply Association, 48 L. T. 485 . . 396 Sewall v. Catlin, 3 Wendell (New York), 292 . . . . . 247 Seymour v. Butterworth, 3 F. & F. 372 . . . 40, 42, 43 v. Coulson (C. A.) 28 W. R. 664 . . . . . 587 Ex parte v. Michael Davitt, 12 L. R. Ir. 46 ; 15 Cox C. C. 242 479 488 Shackell v. Rosier, 3 Scott, 59 ; 2 Bing. K C. 634 . . . 8, 411 Shafer v. Ahalt, 48 Maryland, 171 ; 30 Amer. Rep. 456 . . 57, 87 Shaw v. Shaw, 31 L. J. Pr. & Matr. 35 ; 2 Sw. & Tr. 515 ; 6 L. T. 477 . 497 v. Thompson, Cro. Eliz. 609 . . . . . .56 Sheahan v. Ahearne (1875), Ir. R. 9 C. L. 412 . . . . 91, 532 Sheffill v. Van Deusen, 15 Gray, 485 ..... 318 Shelby v. Sun Printing Association, 38 Hun, (45 K Y. Supr. Ct.) 474 . 22 Shepheard v. Whitaker, L. R. 10 C. P. 502 ; 32 L. T. 402 6, 29, 155, 413 Sheppard v. Lloyd, Daily Chronicle, March 11th, 1882 . . 47, 253 Sheriff of Surrey, In re, 2 F. & F. 234, 236 . . . . 495, 501 Shipley v. Todhunter, 7 C. & P. 680 . . 98, 107, 154, 239, 285, 559 Shire ». King, Yelv. 32 . . . . . . . . 76 Shore v. Wilson, 9 Clark & Fin. 355 . 441, 442, 443, 459, 461, 464, 467 Shrewsbury v. Hornby, 5 Hare 406 ...... 462 Shurtleff v. Parker, 130 Mass. 293 ; 33 Amer. R. 454 . . . 167, 243 v. Stevens, 51 Vermont, 501 ; 39 Amer. R. 698 . ■ . 243, 247 Sibley v. Tomlins, 4 Tyrw. 90 . . . . . 69, 82, 108 Sibthorpe's Case, Dr., W. Jones, 366 ; Roll. Abr. 76 . .74 (59) I A TAULE OF CASES. [* lx] (The paging refers to the [*] pages.) Sib— Sou. PAGE Sidnam v. Mayo, 1 Roll. Rep. 427 ; 1 Roll. Abr. 49 ; Cro. Jac. 407 . 58, 126 Sidney's (Algernon) Case, 9 How. St. Tr. 817, 867 ; 4 St. Tr. 197 434, 477 Simmonds v. Dunne, Ir. R. 5 C. L. 358 . Simmons v. Mitchell, App. ('as. 156 ; 50 L. J. 401 ; 43 L. T. 710 ; 45 J. P. 237 v. Sweete, Cro. Eliz. 78 Simpson r. Downs, 16 L. T. 391 v. Robinson, 12 Q. B. 511 j 18 L. J. Q. 13. 8 Scott 275 71 110 J. Q 49 L Singer Manufacturing Co. v. Domestic Sewim 70 ; b~> Amer. Rep. 674 . Skinner v. Kitch, L. R. 2 Q. B. 393 ; 36 L. J 830 ; 16 L. T.,413 . v. Shoppee, et ux., 6 Bing. N. C. 131 Skipwortk's Case, L. R. 9 Q. B. 230 ; 12 Cox, C. C. Slater v. Franks, Hob. 126 . Slocomb's Case, Cro. Car. 442 Slowman v. Dutton, 10 Bing. 402 Smalpage v. Tonge (C. A.), 17 Q. B. D. 644 ; W.^R. 768 ; 55 L. T. 44 . Smith, Ex parte, In re Bishop, 13 Ch. D W. R. 174; 41 L. T. 388 . v. Andrews, 1 Roll. Abr. 54 ; Hob. 117 v. Ashley (1846), 52 Mass. (11 Met.) 367 v. Berg, 25 W. R. 606 ; 36 L. T. 471 . v. Flynt, Cro. Jac. 300 . v. Harrison, 1 F. & F. 565 v. Higgius, 16 Gray, (82 Mass.), 251 v. Hodgeskins, (1633), Cro. Car. 276 . v. Knowleden, 2 1. & Gr. 561 V. Lakeman, 26 L. J. Ch. 305 ; 2 Jur. N. S. 1-02 S.)98 v. Matthews, 1 M. & Rob. 151 200, 246, 283, 537 P. C. 11 ; 29 W. R. 57, 101, 102, 113. 531,566 . 506 . . 246 13 Jur. 187 . 178, 278, 279, 311, 569 Machine Co., 49 Georgia, M. C. 322 ; 15 W. R 494, 497, B. 518 34 J. Bkcy. 1; 28 355 16 369 501 111 119 105 519 499 14 L. J. Ex. 2D.&L 196 4 Dowl. 333: 2 Parker, 13 M. & W, 459 -v. Richardson, Willes, 20 v. Scott, 2 C. & K. 580 . v. Spooner, 3 Taunt. 246 ©. Taylor, 1 B. & P. N. R. V. Thomas, 2 Scott, 546 ; Hodges, 353 .... i: Ward (1624), Cro. Jac. 674 v. Wood, 3 Camp. 323 . Snag v. Gee, 4 Rep. 16 . v. Gray, 1 Roll. Abr. 57 ; Co. Entr. 22 Snell v. Wcbling, 2 Lev. 150 ; 1 Ventr. 276 . Snowdon v. Smith, 1 M. & S. 286, n. Snyder v. Andrews, 6 Barbour (New York), 43 Soane v. Knight, Moo. & Mai. 74 . Societe Anonyme des Manufactures de Glaces Sand Blast Co. (C. A.), 25 Ch. D. 1 ; 53 L. J 49 L. T. 451 ; 48 J. P. 68 Societe Francaise des Asphaltes v. Farrell, 1 C. & E. 563 Solomon v. Lawson, 8 Q. B. 823 ; 15 L. J. Q. B. 253 ; 10 Jur. 160, 435, 638 . 550 . . 59 311, 324, 544, 579 . . 241 224, 274 . 529, 565 T. (Old 497 82, 235, 237, 280 394 . 172 . 299, 312, 576 252, 319 28 L Solomons and others v. Medex, 1 Stark. 191 Somers v. Holt, 3 Dowl, 506 . v. House Holt, 39 ; Skin, 364 . Somervillle v. Hawkins, 10 C. B. 583; 20 L. J. 16 L. T. (Old S.) 283 . Southam v. Allen, Sir T Raym. 231 Southee v. Denny, 1 Ex. 196 ; 17 L. J. Ex. 151 Southey v. Sherwood, 2 Mer. 435 (60) . 141, 142 . 558 Bing. N. C. 372; 1 293, 537 . 108, 123 168, 236, 237 . 63, 107 . 75 . 124, 130 . 321 . . 152 . 49 V. Tilghman's Patent . Ch. 1 ; 32 W. R. 71 ; 146, 343, 350 . 329 96 . 30, 119, 128, 133, 52S, 529 . 336, 418 . 525 . 54, 96 C. P. 131 ; 15 Jur. 450 ; 202, 231, 2' 81 572 206 . 77 8, 351 TABLE OF CASES. lxi (The paging refers to the [*] pages.) [*lxi.] Sou Sto. page Southold v. Daunston, Cro. (Jar. 269 . . . . . 117 Spademan- p. Gibney, Bristol Spring Assizes, 1878 . . 226, 563 v. Ex. D. . . . . . . . 5:)7 Spall v. Massey and others, 2 Stark. 559 . . . . 6, 13 Sparling v. Haddon, 9 Bing. 11 ; 2 Moo. & Sc. 14 . . . .558 Sparrow v. Hill, (C. A.) 8 Q. B. D. 479 ; 50 L. J. Q. B. 675 ; 2!) W. R. 705 ; 44 L. T. 917 370 Speaker of the Legislative Assembly of Victoria v. Glass, L. R. 3 P. C. 560 ; 40 L. J. P. C. 17 ; 24 L. T. 317 . . . . 491 Speck v. Phillips, 5 M. & W. 279 ; 8 L. J. Ex. 277 ; 7 Dowl. 470 . . 312 Spencer v. Amerton, 1 M. & Rob. 470 .... . 241 Spiering v. Andrae, 45 Wisconsin, 330 . . . . . . 71 Spill v. Maule, L. R. 4 Ex. 232 ; 38 L. J. Ex. 138 ; 17 W. R. 805 ; 20 L. T. 675 .- 239, 272, 284, 285 Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551 ; 37 1,. J. Ch. 889 ; 16 W. R. 1138 ; 19 L. T. 64 . . . 16, 354, 356, 357, 358, 410 Squire v. Johns, Cro. Jac. 585 ...... 127 Stace v. Griffith, L. R. 2 P. C. 420 ; 6 Moore, P. C. C. N. S. 18 ; 20 L. T. 197 . . . . . . . 183, 213, 563 Stainton et ux. v. Jones, 2 Selw. N. P. 1205, 13th ed. ; 1 Dougl. 380 n. 60, 86 Stamp and wife v. White and wife, Cro. Jac. 600 . . .64, 96 Stanhope i\ Blith (1585), 4 Rep. 15 . . . .62, 83, 123 Stanley v. Bos well, 1 Roll. Abr. 55 ..... 72 - v. Webb, 4 Sandf. (N. Y.) 21 . . . . . 99 Stannus v. Finlay, Ir. R. 8 C. L. 264 . . . . . 537, 578 Stanton v. Smith, 2 Ld. Raym. 1480 ; 2 Str. 762 ... 67, 80 Staples v. Young, 2 Ex. D. 324 ; 25 W. R. 304 . . . 372 Stapleton v. Frier, Cro. Eliz. 251 . . . . . . 56, 121 Stationers, The v. Patentees of Rolle's Abridgment, Carter, 89 . . 340 Stead v. Williams and others, 5 C. B. 528 . . . . . 407 Stebbing v. Warner, 11 Mod. 255 .... . 62, 123 Steele v. Brannan, L. R. 7 C. P. 261 ; 41 L. J. M. C. 85 ; 20 W. R. 607 ; 26 L. T. 509 ... 5, 255, 382, 444, 474, 475 v. Sonthwicke, 9 Johns. (New York) 214 . . . 124, 132 Stees v. Kemble, 3 Casey (28 Penns. St.) 112 . . . 57, 123 Stein v. Tabor, 31 L. T. 444 . . . . . 548 Stennel v. Hogg, 1 Wins. Saunders, 228 . . . . . 605 Stern v. Sevastopulo, 14 C. B. N. S. 737 ; 32 L. J. C. P. 268 ; 11 W. R. 862 ; 10 Jur. N. S. 317 ; 8 L. T. 538 545 Sterry v. Foreman, 2 C. & P. 592 . . . . . 299, 327 Stevens v. Sampson, 5 Ex. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. R. 87 ;' 41 L. T. 782 ; 44 J. P. 217 . . . 184, 194, 210, 256, 261, 262, 279 Steward v. Young, L. R. 5 C. P. 122 ; 39 L. J. C. P. 85 ; 18 W R. 492 ; 22 L. T. 168 . . . . . . . 143, 145, 530 Stewart v. Howe, 17 111. 71 . . . . . . 63 Stich v. Wisedome, Cro. Eliz. 348 . . . . . . 58 Stiles v. Nokes, 7 East, 493; S. C. sub nom. Carr v. Jones, 3 Smith, 491 . . . . . . . 22, 46, 176, 260, 312 Stober v. Green, 1 Brownl. & Golds. 5 . . . . . . 81 Stockdale v. Hansard (1837), 7 C. & P. 731 ; 2 M. & Rob. 9 ; (1839) 9 A. & E. 1 ; 2 P. & D. 1 ; 3 Jur. 905 ; (1840) 11 A. & E. 253 ; 8 Dowl. 148, 522 . . 161, 185, 186, 311, 489, 490, 502 v. Onwhyn, 5 B. & C. 173 ; 7 D. & R. 625 ; 2 C. & P. 163 . 8 v. Tarte and others, 4 A. & E. 1016 . . 171, 256, 263 Stocken v. Collin, 7 M. & W. 515 ; 10 L. J. Ex. 227 . . . . 600 Stockley v. Clement, 4 Bing. 162 ; 12 Moore, 376 . . . 128, 230 Stokes v. Arey, 8 Jones, 46 . . . . . .57, 123 v. Stokes, Weekly Notes, 1887, p. 116 . . . . . 527 Stone v. Cooper (1845), 2 Denio (N. Y.) 293 . . . 73, 112 v. Smalcombe, Cro. Jac. 648 ...... 122 Stoner v. Audeley, Cro. Eliz. 250 . . . . . . . 124 (61) Lxii TABLE OF CASES. [*lxii.] (The paging refers to the [*] pages.) Sto— Tay. page Stooke r. Tavlor, 5 Q. B. D. 569 ; 49 L. J. Q. B. 857 ; 29 W. R. 49 ; 43 L. T. 208 . . . . . . . 371 Storey v. Challands, 8 C. & P. 234 . . . 206, 209, 510, 299 v. Wallace, 11 111. 51 . . . . . . . 159 Strader v. Stryder, 67 111. 404 . . . . . . . 156 Strange v. Dowdney, 38 J. P. 724, 756 .... . 528 Strauss v. Francis, (No. 1), 4 F. & F. 939, 1107 ; 15 L. T. 674 . 48, 573, 578 v. L. R. 1 Q. B. 379; 35L. J.Q. B. 133; 12 Jur. N. S. 486 ; 14 W. R. 634 ; 14 L. T. 326 ; 30 J. P. 421 .... 578 Street v. Licensed Victuallers' Society, 22 W. R. 553 . . 99, 263 Strode v. Holmes (1651), Style, 338 ; 1 Roll. Abr. 58 . . . . 72 Strong, Be (C. A.) 32 Ch. D. 342 ; 55 L. J. Ch. D. 553 ; 34 W. 11. 614 ; 55 L. T. 3 . . 500 Stuart v. Lovell, 2 Stark. 93 . . . .49, 98, 277, 310, 576 Stubbs v. Marsh, 15 L. T. 312 3 . . . . 29, 407 Stuckley v. Bullhead, 4 Rep. 16 . . . . . 72 Studdert v. Grosvenor, 33 Ch. D. 528 ; 55 L. J. Ch. 689 ; 34 W. R. 754 ; 55 L. T. 171 ; 50 J. P. 710 . . . . . 373, 610 Sturgeon (Lessee) v. Douglass, 10 Ir. L. R. 128 n. . . . 497 Sturton (Lord) v. Chaffin (1563), Moore, 142 ... . 126 Subbaiyar v. Kristnaiyar and another, I. L. R. 1 Madras, 383 . 15, 335 Suego's Case, Hetl. 175 .... . .78 Summers v. City Bank, L. R.; 9 C. P. 580 ; 43 L. J. C. P. 261 30, 80, 398 Surman v. Shelleto 3 Burr, 1688 ...... 82 Surrey, Be, the High Sheriff of, 2 F. & F. 234 . % . . 495, 501 Sutclfffe v. Smith, 2 Times L. R. 881 . . . . . 367 Sutton v. Clarke, 6 Taunt, 229 . . . . . . . 516 v, Johnstone (1785), 1 T. R. 493 . . . . 195 v. Plumridge, 16 L. T. 741 . . . . . . 213 v. South Eastern Rail. Co., L. R. 1 Ex. 32 ; 4 H. & C. 325 ; 35 L. J. Ex. 38 ; 14 W. R. 133 ; 11 Jur. N. S. 935 ; 13 L. T. 438 . 361 Swann v. Vines, Nov. 1877, cited 37 L. T. 469 . . . 563 Sweeney v. Baker, 13 West Virginia R. 158 . . . 44 Sweetapple v. Jesse, 2 N. & M. 36 ; 5 B. & Ad. 27 . . . 114, 122 Swithin et ux. v. Vincent etux., 2 Wills. 227 .... 404,420 Sydenham v. Man, Cro. Jac. 407 ...... 565 Sykes v. Sykes, L. R. 4 C. P. 645 ; 38 L. J. C. P. 281 ; 17 W. R. 799 ; 20 L. T, 663 527 Symington, The William, 10 P. D. 1 ; 51 L. T. 461 . . . . 370 Symmons v. Blake, 2 C. M. & R. 416 ; 1 M. & Rob. 477 ; 4 Dowl. 263 ; 1 Gale, 182 98, 277, 310 Taaffe v. Downes, 3 Moo. P. C. C. 36 n. . . . . . 188 Tabart v. Tipper, 1 Camp. 350 . . . . . 32, 34, 530, 564 Tait v. Culbertson, 57 Barb. 9 . . . . .420 Talbot v. Case, Cro. Eliz. 823 . . . . . . . 63 Talbutt v. Clark and another, 2 M. & Rob. 312 . . 160, 314, 315 Tardrew v. Brook, 5 B. & Ad. 880 . . . . . . 578 Tarlton and others v. McGawley, Peake, 204, 270 . . . 16, 148 Tarpley v. Blabey, 2 Bing, N, C. 437 ; 2 Scott, 642 ; 1 Hodges, 414 ; 7 C. & P. 395 .... 6, 156, 280, 318, 413, 560 Tasburgh v. Day, Cro. Jac. 484 . . . . . .139 280 73 368 64 204 Tate v. Humphrey, 2 Camp. 73 n Tavlor v. Carr, 3 Up. Can. Q. B. Rep. 306 . - — v. Cass, L. R. 4 C. P. 614 ; 17 W. R. 860 ; 20 L. T. 667 e. Hall, 2 Str. 1189 ..... v. Hawkins, 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 746 236, 272, 284, 289, 572 (62) TABLE OF CASES. lxiii (The paging refers to the [*] pages.) [* lxiii.] 139 ; 8 Jur. N 56 L. J R. 515 1!) PAGE . 72 . 65, 127 65, 61), 76 . . 76 . 190 . 21, 94 55, 58, 126 . . 82 302, 3:33 . 549 60, 86 S. Q. B. , 189 261 578 519 82 . 522 605 ; 28 W. R. 983 ; 340, 313, 362, 363, 365, 520 98, 108, 640 . 56, 320 '. 48, 49 . 347 . . 80 3, 20 15 Jur. 285 Tay— Tra. Taylor ». How, Cro. Eliz. 861 ; 1 Vin. Abr. 464 Vm Perkins (1607), Cro. Jac. 144 ; 1 Roll. Abr. 44 v. Perr (1607), 1 Roll. Abr. 44 v. Starkey, Cro. Car. 192 „. Swintou (1824), 2 Shaw's Sc. App. Cas. 245 Teacy v. McKenna, Ir. Rep. 4 C. L. 374 . Tempest v Chambers, 1 Stark. 67 . Terry v. Hooper, 1 Lev. 115 Terwilli?er v. Wands, 3 Smith (17 N. Y. R.), 54 . Tetley v. Easton, 25 L. J. C. P. 293 . Theyer v. Eastwick, 4 Burr. 2032 . Thomas v. Churton, 2 B. & S. 475 ; 31 L. J. Q. B. 795 ...... r. Croswell, 7 Johns. (N. Y. Supr. Ct.), 264 «• Exeter Flying Post Co., 18 Q. B. D. 822 313 ; 35 W. R. 594 ; 56 L. T. 361 ; 3 Times L v. Hamilton, Duchess Dowager of (C. A.), 17 Q. B. D. 592 ; 55 L. J. Q. B. 555 ; 35 W. R. 22 ; 55 h. T. 219, 385 v. Jackson, 3 Bing. 104 ; 10 Moore, 425 v. Rumsey, 6 Johns. (N. Y.), 26 . v. Williams, 14 Ch. D. 864 ; 49 L. J. Ch. 43 L. T. 91 . . . . 149 Thompson v. Bernard, 1 Camp. 48 v. Nye, 16 Q. B. 175 ; 20 L. J. Q. B. 85 v. Shackell, Mo. & Mai. 187 v. Stanhope, Ambler, 737 .... v. Twenge, 2 Roll. Rep. 433 ... . Thorley v Lord Kerry, 4 Taunt. 355 ; 3 Camp. 214 n. Thorley's Cattle Food Co. v. Massam (interloc), 6 Ch. D. 582 ; 46 L. J. Ch. 713 . . . 150, 340, 341, 339, 359 (before Malins, V.-C.) 14 Ch. D. 763 ; 28 W. R. 295 ; 41 L. T. 542 . . 150, 340, 341, 349, 359 (C. A.) 14 Ch. D. 781 ; 28 W. R. 966 ; 42 L. T. 851 . 150, Thorn v. Blancbard, 5 Johns. (Amer.), 508 . Thorne v. Alice Durham (1606), Noy, 117 Thornton v. Howe, (1862), 31 Beav. 14 v. Stephen, 2 M. & Rob. 45 . Thorpe v, Macaulay, 5 Madd. 230 . Threlfall v. Wilson, 8 P. D. 18 ; 48 L. T. 238 Thurman v. Wild, 11 A. & E. 453 . Tibbott v. Haynes (1590), Cro. Eliz. 191 Tibbs v. Brown, 2 Grant's Cas. (Penns.) 39 . v. Smith, 3 Salk. 325 ; Sir T. Raym. 33 . Tichborne v. Mostyn, L. R. 7 Eq. 55, n. ; 15 W. R. 1072 ; v. Tichborne, 39 L. J. Ch. 398 ; 18 W. R. 621 ; Tidman v. Ainslie (1854), 10 Ex. 63 Tighe v. Cooper, 7 El. & Bl. 639; 26 L. J. Q. B. 215; 3 Jur. v. Wicks, 33 Up. Can. Q. B. Rep. 470 Tilk v. Parsons, 2 C. & P. 201 . Titus v. Sumner, 45 N. Y. 266 .... Todd v. Hastings, 2 Sand. 307 . 0. Hawkins, 2 M. & Rob. 20 ; 8 C. & P. 88 . Tomlinson v. Brittlebank, 4 B. & Ad. 630 ; 1 N. & M. 455 Tompson v. Dashwood, 11 Q. B. D, 43 ; 52 L. J. Q. B. 943 ; 48 J. P. 55 . . . . . 155, 228, 247, 273, 287 Toogood v. Sprying, 1 C. M. &. R. 181 ; 4 Tyr. 582 . 218, 231. 247, 288 Townshend (Lord) v. Hughes (Dr.), 2 Mod. 150 . 75, 96, 126, 136, 295, 306, 583 Toze v. Mashford, 6 Ex. 539 ; 20 L. J. Ex. 225 . . .58, 126 Tozier and wife v. Hawkins (C. A.) 15 Q. B. D. 650, 680 ; 55 L. J. Q. B. 152 ; 34 W. R. 233 409, 519 Trail v. Denham, Times, May 4th, 1880 . . . . . 98 (63) 340, 341 349, 359 . 193 , . . 60 . 463 • . . 573 ( . 554 . 396 * . 540 , t 54, 56 . 398 . 123 17L. T. 5 . 496 22 L. T. 55 . . 166 N.'S. 716' 174, 539 68, 74 . 303 . 333 . 81 212, 240,' 274, 645, 55, 105 425 ; 48 L. T. lxiv TABLE OF CASES. [*lxiv.] (The paging refers to the [*] pages.) Tra— "Wak. tage Traske's Case (1618), Hobart, 236 .... 446,450,456 Treat v. Browning, 4 Connecticut, 408 . . . . . 165 Trenton Insurance Co. v. Perrine, 3Zab. 402 (Zabriskie, New Jersey), . 416 Tripp v, Thomas, 3 B. & C. 427 ; 1 C. & P. 477 . . 294, 520, 570 Trotman v. Dunn, 4 Camp. 211 . ..... 101,193 Trumbull v. Gibbons, 3 City Hall Recorder, 97 . . . 153,154 Tuam (Archbishop of) v. Robeson, 5 Bing, 17; 2 M. & P. 32 . 26 Tucker v. Lawson, 2 Times L. R. 593 . . 158, 31:5, 315, 517, 547 Tucker's ( !ase, Ry. & M. 134 . . . . . . . 601 Tunnicliffe v. Moss, :! ('. & K. 83 . . . 306, 309, 331, 332, 333 Turnbull v. Bird, 2 F. A F. 508 . . . . . . 43, 271 v. Forman, 15 Q. B. D. 234 ; 54 L. J. Q. R. 489 ; 33 W. R. 768 ; 53 L. T. 128 400 Turner, E.r parte, 3 Mont, D. & De G. 523, 551, 558 . . . . 497 v. Heyland, 4 C. P. D. 432 ;48 L. J. C. P. 535 ; 41 L. T. 556, 30s. 588 r. Meryweather, 7 C. B. 251 ; 18 L. J. C. P. 155 ; 13 Jur. 683 ; (Exch. Ch.) 19 L. J. C. P. 10 . . 129, 131, 556 v. Ogden, 2 Salk, 696: 6 Mod. 104 ; Holt, 40 . 54, 56, 61, 86 v. Stirling (1671), 2 Ventr. 26 . . . .141 v. Sullivan and others. 6 L. T. 130 . . . . 256 Tuson v. Evans, 12 A. & E. 733 ; 5 J. P. 209 .. . 231, 285 Tutchin's Case, St. Tr. 527 ; 14 How. St, Tr. 1095 ; 2 Lord Ravm. 1061 ; 1 Salk. 50 ; 6 Mod. 268 ; Holt. 424 . . . 103, 424, 433, 595, 605 Tutty r. Alewin, 11 Mod. 221 . . . . . 71, 77 Twvcross v. Grant (C. A.), 4 C. P. D. 40 ; 47 L. J. Q. B. 676 ; 27 W. R. "87 ; 39 L. T. 618 . . . . . . . . 408 Underwood v Parks, 2 Str. 1200 . . . . . .312 Upton v. Pinfold, Corny n, 267 . . . . . . 119 UslU l m SJfe- v ) 3 C. P. D. 319 ; 47 L. J. C. P. 323 ; 26 W. R, 371 ; v Clarke ' \ 38 L ' T ' 65 ' 41 J " P ' ~ 43 ' ' 249 ' 25 °' 861, 252 Vanderzee v. McGregor, 12 Wend. 546 . . . . . 273 Van Sandau, Ex parte, 1 Phillips, 445 .... 503 v. Turner. 6 Q. B. 773 . . . . . . 503 Vanspike a. Cleyson (1597), Cro. Elix. 541 ; 1 Roll. Abr. 67 . 214, 218 Vaughan v Ellis, Cro. Jac. 213 . . . . . . 140 Vaux's Case, 4 Rep. 45a . . . . . . . . 606 Vernon v. Vernon, 40 L. J. Ch. 118 ; 19 W. R. 404 ; 23 L. T. 697 496, 501 Vessey v. Pike, 3 C. & P. 512 . . . . 313, 319, 539 Vicars v. Wilcox, 8 East, 1 ; 2 Sin. L. C. 553 (8th edit.) . 327, 328, 329 v. Worth, 1 Str. 471 .... . 60, 86, 133 Victoria Assemblv (Speaker of) v. Glass, L. R. 3 P. C. 560 ; 40 L. J. P. C. 17 ; 24 L. T. 317 . . . . . . . . 491 Villers r. Monsley, 2 Wils. 403 . . . . . 19, 20, 64 Vine, Ex i arte, In re Wilson, 8 Ch. D. 364 ; 26 W. R. 582 ; 38 L. T. 730 407 A'ines v. Serell, 7 C. & P. 163 . . . . . 309 Vivian v. Willet, Sir T. Raym. 207 ; 3 Salk. 326 .. . 80, 125 Waddell v. Blockey (C. A.), 10 Ch. P». 416 ; 27 W. R. 233 ; 40 L. T. 286 581 Wadsworth v. Bentley, 23 L. J. G. B. 3 ; 1 B. C. Cases (L. & M.) 203 ; 2 C. L. R. 127; 17 Jur. 1077 522 Wainford v. Heyl, L. R. 20-Eq. 321 ; 44 L. J. Ch. 567 ; 23 W. R. 848 ; 33 L. T. 155 . . . . . . . . . 400 Wakeley v. Cooke and another, 16 M. & W. 822 ; 16 L. J. Ex. 225 . 523 V. Cooke A Healey, 4 Ex. 511 ; 19 L. J. Ex. 91 . 28, 127, 172, 538 V. Healey, 7 C. B. 591 ; 18 L. J. C. P. 241 . . 20, 27, 130 v. Healey & Cooke, 4 Ex. 53; 18 L. J. Ex. 426 . . . 66 v. Johnson, Ry. & M. 422 . . . . . . 318 (64) TABLE OF CASES. lxv (The paging refers to the [*] pages.) [*lxv.] Wal-Wei PAGE Walcot v. Walker, 7 Ves. 1 . . . . . . .8 Waldegrave (Sir William) v. Ralph Agas, Cro. Eliz. 191 ; 1 Roll. Abr. 75 56 Walden v. Mitchell, 2 Ventr. 265 . ... 59, 72 Walker v. Brogdeu, 19 C. B. N. S. 65 ; 11 Jur. N. S. 671 ; 13 W. R. 809 ; 12 L. T. 495 ... . 26, 38,48 v. 17 C. B. N. S. 571 557 v. Clarke, 56 L. T. Ill ; 3 Times L. R. 297 . . .147 Wallace, Be, L. R. 1 P. C. 283 ; 36 L. J. P. C. 9 ; 15 W. R. 533 ; 14 L. T. 286 504 v. Carroll, 11 Ir. C. L. R. 485 . ... 205 Waller v. Loch (C. A.), 7 Q. B. D. 619 ; 51 L. J. Q. B. 274 ; 30 W. R. 18 ; 45 L. T. 242 ; 46 J. P. 484 . . . 204, 208, 213, 214, 221 Walls or Watts v. Rymes, 2 Lev. 51 ; 1 Vent. 213 ; 3 Salk. 325 . 62, 123 Walter v. Beaver, 3 Lev. 166 ; Sir T. Jones, 235 ; 2 Ventr. 172 ; 3 Salk. 325 . 582 Ward v. Morse, Re Brown (C. A.), 23 Ch. D. 377 ; 52 L. J. Ch. 524 ; 31 W. R. 936 ; 49 L. T. 68 . . . . • • 371 v. Reynolds (1714), Pasch. 12 Anne B. R ; cited Cowp. 278 97, 127 v. Sinfield, 49 L. J. C. P. 696 ; 43 L. T. 253 . . . . 573 v. Smith, 6 Bing. 749 ; 4 M. & P. 595 ; 4 C. & P. 302 . 30, 154, 417, 559 Weeks, 7 Bing. 211 ; 4 M. & P. 796, 62, 84, 165, 168, 304, 331, 332, 333 Warden v. Bailey, 4^Taunt. 67 . . . . . . 195 Waring v. M'Cal'din (1873), 7 Ir. R. C. L. 282 . . . 227, 247 v. Pearman, 32 W. R. 429 ; 50 L. T. 633 . . . . 371 Warman v. Hine, 1 Jur. 820 ; 1 J. P. 346 . . 20, 26, 27, 171, 280 Warne v. Chadwell, 2 Stark. 457 .... 277, 576 Warr v. Jolly, 6 C. & P. 497 . . . . . 236, 237 Warren v. Norman, Walk. (Mississippi), 387 . . 69 v. Warren, 1 C. M. & R. 250 ; 4 Tyr. 850, 154, 200, 246, 283, 287, 559 Warton v. Gearing, 1 Victoria L. R. Cases at Law, 122 . . 67, 76 Warwick v. Foulkes, 12 M. & W. 508 . . . 178, 278, 311, 569 Wason, Ex parte, L. R. 4 Q. B. 573 ; 38 L. J. Q. B. 302 ; 40 L. J. M. C. 168 : 17 W. R. 881 . . . . 185 v. Walter, L. R. 4 Q. B. 73 ; 8 B. & S. 671 ; 38 L. J. Q. B. 34 ; 17 W. R. 169 ; 19 L. T. 409 ; 32 J. P. 773 ; 33 J. P. 149 . 32 40, 43, 186, 242, 248, 251, 264, 265, 635 Waterer v. Freeman, Hob. 266 . ... . . • • 143 Waterfield v. Chichester (Bishop of), 2 Mod. 118 . . . . . 261 Watkin v. Hall, L. R. 3 Q. B. 396 ; 37 L. J. Q. B. 1 25 ; 16 W. R. 857 ; 18 L. T. 561 ; 32 J. P. 485 . . . 100, 162, 165, 166, 175, 177 Watson, In re, Shaw's Cases (Scotch), No. 6 . . . 497 v. Gierke, Comb. 138 . . . . . . . 86 v. McCann, 6 L. R. Ir. 21 527 v. Reynolds, Moo & Mai. 1 . . . .141, 144, 230 v. Trask, 6 Ohio, 531 .... 19, 146, 348 v. Vanderlash, Hetl. 71 . . ■ . . . 77, 78 Watt v. Ligertwood and another, L. R. 2 Sc. App. 361 . . . 500 Watts v. Fraser and another, 7 C. & P. 369 ; 7 Ad. & E. 223 ; 6 L. J. K. B. 226 ; 1 M. & Rob. 449 ; 2 N. & P. 157 ; 1 Jur. 671 ; W. W. & D. 451 . . . - 153, 160, 318, 413, 559 v. Rymes, 2 Lev. 51 ; 1 Ventr. 213 ; 3 Salk. 325 . . 62, 123 Weatherston v. Hawkins, 1 T. R. 110 . . . . . . 236 Weaver v. Lloyd, 2 B. & C. 678 ; 1 C. & P. 295 ; 4 D. & R. 230 . 170, 171 539, 572 Web v. Poor, Cro. Eliz. 569 . . . . . . . 63 Webb v. Beavan, 11 Q. B. D. 609 ; 52 L. J. Q. B. 544 ; 49 L. T. 201 ; 47 J. P. 488 . . ... . • 54, 55, 105 v. East (C. A.), 5 Ex. D. 23, 108 ; 49 L. J. Ex. 250 ; 28 W. R. 229, 336 ; 41 L. T. 715 ; 44 J. P. 200 . . . . 554, 555 Webster v. Friedeberg (C. A.), 17 Q. B. D. 736 ; 55 L. J. Q. B. 493 ; 34 W. R. 728 ; 55 L. T. 49, 295 . . . . . 582 Wedmore v. Scovel, 3 Edw. Ch. R. 515 . . . . . . 348 Weir v. Hoss, 6 Alabama, 881 ...... 155 E. Lib. & Slan. (65) lxvi TABLE QF CASES. I* lxvi] (Tlie paging refers to the [*1 pages.) Wei-Wil. i'age Weiss v. Whittemore, 38 Michigan, 366 . . . . . . 309 Weldona. De Bathe (C. A.), 14 Q. B. I). 339; 54 L. J. Q. B. 113; 33 W. R 328 ; 53 L. T. 520 . . . .84, 301 v. Johnson, Times, May 27th, 18S4 . . . . 42, 46 v. Neal, J'.' 1 W. 11. 828 396 v. Rout-ledge and Sons (not reported) . . . . . (555 v. Weldon, 10 P. D. 72 ; 54 L. J. P. & D. 26, 60 ; 33 W. R. 370, 427 ; 52 L. T. 233 ; 49 J. P. 517 . . . 502 v. Winslow, Times, March 14th— 19th, 1884 . .21, 210, 234 v. (C. A.). 13 Q. B. D. 784 ; 53 L. J. Q. B. 528 ; 33 W. R. 219; 51 L. T. 643 396, 397 Wellesley's (Mr. Long) Case, "2 Russ. & My. 639 . . . 498. 512 Wells v. Webber, 2 F: & F. 715 27 Welply r. Buhl (C. A.), 3 Q. B. B\ 80, 253 ; 47 L. J. Q. B. 151 ; 26 W. R. 300; 38 L. T. 1 15 . . . . . . . 585 Wenman v. Ash, 13 C. B. 836 ; 22 L. J. C. P. 190 ; 17 Jur. 579 ; 1 C. L. R. 592 153, 269 Western Counties Manure Co.*«. Lawes Chemical Manure Co., L. R. 9 Ex. 218 ; 43 L. J. Ex. 171 ; 23 W. R. 5 . 31, 92, 147—150, 662-666 Weston r, Beeman and another, 27 L. J. Ex. 57 . . . . 412 v. Dobniet, Cro. Jac. 432 . . . . . . 193 Wetherhead v. Arniitage, 2 Lev. 233 ; 3 Salk. 328 ; Freem. 277 ; 2 Show. 18 . . . . . . R9, 79, 85 Whulley's Case, L. R, 9 Q. B. 219 ; 12 Cox, C. C. 358 . . 497, 501, 512 Wharton v. Brook, Ventr. 21 . . ... . .79,85 Wheatcroft v. Mousley, 11 C. B. 677 . ..... 557 Wheeler ». Haynes, 9 A. & E. 286. n ; 1 P. & D. 55 ; 1 W. W. & H. 645 103 v. Poplestone (1624) 1 Rolle Abr. 72 . . .57 Whistler b. Ruskin, Times, Nov. 20 and 27, 1878 . . . 35, 49 White v. Tyrrell (2), 5 Ir. C. L. R. 498 . . . . . 539 et ux. t. Harwood et ux., Style, 138; Vin. Abr. Baron & Feme, Aa. . . . . . . . . . 404 Whiteley v. Adams, 15 C. B..N. S. 392 ; 33 L. J. C. P. 89 ; 10 Jur. N. S. 470 ; 12 W. R. 153 ; 9 L. T. 483 . 199, 217, 219, 237, 241, 274, 278, 525 Whitfield r. Powel, 12 Mod. 284 . . . . . . 65 and others v. S. E. Ry. Co., El. Bl. & El. 115; 27 L. J. Q. B. 229 ; 4 Jur. N. S. 688 . . . . . . 152, 286, 417 Whittington v. Gladwin, 5 B. & C. 180 ; 2 C. & P. 146 . . 80, 81 Wieman v. Mabee, 45 Mich. 484 ; 40 Amer. R. 477 . 227 Wilby v. Elston, 8 C. B. 142 ; 18 L. J. C. P. 320 ; 7 D. & L. 143 ; 13 Jur. 706 . . . . . . . . 87 v. Henman, 2 Cr. & M. 658 . . . . . . 556 Wild v. Tompkinson, 5 L. J. K. B. 265 . . . . . 405 Wiley v. Campbell, 5 Monroe (19 Kentucky), 396 . . . 123 Wilk's Case, 1 Roll. Abr. 51 . . . . . . .108 Williams v. Beaumont, 10 Bine:. 2«0 ; 3 M. & Scott, 705 . 30, 416, 417 v. Gardiner, 1 M. & W. 245 ; 1 Tyrw. & Gr. 578 ;2 C. M. & R. 78 130 v. Hill, 19 Wend, 305 . . . . . . . 301 ■ v. Johns (1773), 1 Mer. 303, n. . . . . .495 r. Magyer, Times, March 1st, 1883 . . . . . 63 v. Salisbury (Bishop of) Wilson v. Fendall (1864) 2 Moore P. C. N. S. 375 ; Brod. & Fremantle, 247 . . . 449 v. Spowers and others, Australian Law Times, May 13th, 1882, p. 118 " . . . • • • • 33 V. Stott, 1 C. cv M. 675 ; 3 Tyr. 688 . . 55, 64 William's Case, 2 Rolle R. 88 . . . . . . . 478 Williamson v. Freer, L. R. 9 C. P. 393 ; 43 L. J. C. P. 161 ; 22 W. R, 878 ■ 30 L T. 8 2 . . . . . 152, 286, 288, 559 Willis v. Maclachlan, 1 Ex. T). 376 ; 45 L. J. Ex. 689 ; 35 L. T. 218 . 511 Willmett r. Rainier and another, 8 C. & P. 695 . . . 174, 178 Wilson, In re, Ex parte Vine, 8 Ch. D. 364 ; 26 W. R. 582 ; 38 L. T. 730 407 (66) 549 528 TABLE OF CASES. lxvii (The paging refers to the [*] pages.) [* lxvii.] T^fcollins, 5 C. & P. 373 . • 245, 280, P 289 c Fendall, Williams v. Bishop of Salisbury (1804), 2 Moore, P. C. N S 375 ; Brod. & Fremantle. 247 . . 449 » Fitch, 41 Cal. 363 47, 315 D Goit, 3 Smith (1? N. Y. R.), 445 . . 15, 19, 302, 330, 399 r Reed and others, 2 F. & F. 149 . . . . 37, 43, 421 „ Rohinson, 7 Q. B. 68 ; 14 L. J. Q. B. 196 ; 9 Jur. 726 . 178, 212, 278, 311, 569 Wilson's (Cams) Case, 7 Q. B. 984 . . 495, 500, 502, 504, 507, 508 Wilton r Brignell, W. N. 1875, p. 239 ; 1 Charley, 105 ; Bitt. 56 ; 20 Sol. J. 121 ; 60 L. T. Notes, 104 . . . . 547, 553 Wingard v. Coxe, W. N. 1876, p. 106 ; Bitt. 144 ; 20 Sol. J. 341 ; 60 L. T. Notes, 304 534 Wisdom o. Brown, 1 Times L. R 412 . . . . 43, 241, 296, 579 Wiseman v. Wiseman, Cro. Jac. 107 . 132 Wolverhampton New Waterworks Co. v. Hawksford, 5 C. B. N. S. 703 ; 28 L. J. C. P. 198 . . _ Wood v. Adam, 6 Bing. 481 . . . • • • • v. Brown, 6 Taunt. 169 ; 1 Marsh. 522 . . . .528 v. Gunston, Style, 462 . . . . • • ■ 190 v. Merrick (1626), 1 Roll. Abr. 73 - r >7 Woodard v. Dowsing, 2 Man. & By. 74 . . - .27, '-87 Woodfall's Case, 5 Burr. 2661 • 607 Wood-ate r. Ridout, 4 F. & F. 202 . 28, 36, 45, 46, 114, 257, 381, 5b6 Woodruff v. Woolcy, 1 Vin. Abr. 463 .... 72 Woods v. Woods, 2 Curt. 516 • ■ 448 Woodward v. Lander, 6 C. & P. 548 . . . • 218, 226, 284 Woolmer v. Latimer, 1 Jur. 119 . . . • • • ?„: Woolnoth d. Meadows (1804), 5 East, 463 ; 2 Smith, 28 . 56, 97, 124, 164 Wren and another v. Weild, L. R. 4 Q. B. 730 ; 10 B. & S. 51 ; 38 L. J. Q. B. ss, 32 r ; 20 L. T. 277 ; 34 J. P. 19 . . . 146, 544 Wrenmim's Case, Pop. 135 . ... • • • • 493 Wright ». Clements, 3 B. & Aid. 503 . . . . . . 528 r. Moorhouse, Cro. Eliz. 358 . . . • .72 v. Wood"-ate, 2 C. M. & R. 573 ; 1 Tyr. & G. 12 ; 1 Gal. 329 . 211, 281, 562 Wyatt v. Gore, Holt, N. P. 299 . . 315, 321, 322, 327, 518, 565, 577 Yarborough v. Bank of England, 16 East, 6 . . -416 Yardley v. Ellis, Hob. 8 ? 6 Yarmouth (Mayor of), Ex parte, 1 Cox, C. C. 122 . . . 431, 505 Yates v. Lansing, 5 Johns. 283 ; 9 Johns. 395 (Amer.) . . . 189 V. Reg. (C. A.), 14 Q. B. D. 648 ; 54 L. J. Q. B. 258 ; 33 W. R. 482 ; 52 L. T. 305 ; 49 J. P. 436 ; 15 Cox, C. C. 686 ; 1 Times L. R. 193 .... ... 384, 590, 610 Yates et ux. v. Reed et ux. 4 Blackf . (Indiana), 463 . . 5, 406 Yetts and another v. Foster (C. A.), 3 C. P. D. 437 ; 26 W. R. 745 ; 38 L. T. 742 581 York v. Johnson, 116 Mass. 282 . . . . • . . 101 v. Pease, 2 Gray (68 Mass. 432 .... 243, 273 Young d. Hickens, 6 Q. B. 606 . . . . • -147 and others v. Macrae, 3 B. & S. 264 ; 32 L. J. Q. B. 6 ; 11 W. R. 63 ; 9 Jur. N. S. 539 ; 7 L. T. 354 ; 27 J. P. 132 . 14, 31, 148, 149, 150 Yrisarri v. Clement, 4 L. J. (Old S.) C. P. 128 ; 3 Bing. 432 ; 11 Moore, 308 ; 2 C. & P. 223 . .. . . . • 23. 66, 558 Zenobio v. Axtell, 6 T. R. 162 ; 3 M. & S. 116 . . 109, 529, 593 (67) TABLE OF STATUTES CITED. [*lxviii.] (The paging refers to the [*] pages.) *** The Statutes marked with an asterisk will be found printed in full in Appendix D., post, pp. 707 — 709. PAGE 3 Ed. I. Stat. Westminster 1, c. 34 . 134, 136, 425, 484, 488, 492, 708 13 Ed. I. Stat. 4 ... 708 25 Ed. III. c. 2 . . 477, 478 2 Rich, II.. St. 1, c. 5 . 75, 135, 136 425, 484, 488, 492, 708 12 Rich. II. c. 11 136, 425, 484, 488, 492, 708 1 Ed. VI. c. 1, s. 1 . . . 465 2&3Ed. VI. c. 1, s. 2 . . 465 3 . . 465 1 &2Ph. c%M. c. 13 . . 511 1 Eliz c. 1, s. 6 . . . 447 2, 4. 2 . . . 465 3 465 5 Eliz. c. 4 . 302 13 Eliz. c. 12, s. 2 . . . 465 18 Eliz. c. 3 . . . 59 1 Jac. I. e. 11 . . . . 60 3 Jac. I. c. 21 . . . . 460 21 Jac. I. c. 16 . 366, 521, 653 s. 3 . . . 520 19. s. 7 . . . 521 *13 Car. II. Stat, 1, c. 1 . . 486 s. 3 . 488, 708 c. 5 . . .381 13 & 14 Car. II. c. 33 . . 11 14 Car. II. c. 4, s. 1 . . 465 29 Car. II. c. 9, s. 1 . . 447 2 447 1 -lac II. c. 17 . '. '. 11 1 W. & M. Sess. 2, c. 2 . 185, 381 c. 18, s. 4 . . 448 17 . . 448 3 W. &M. c. 9, s. 4. . . 61 10 . . 56 *4 W. & M. c. 18, s. 1 . 610, 613, 709 5 & 6 W. & M. c. 11, s. 3 . 598 8 & 9 Wm. III. c. 11, s. 6 . 407 9 & 10 Wm. III. c. 35 [c. 32 in the Statutes at laro-e] . 454, 460, 461, 466, 4 & 5 Anne, c. 3 (al. c. 16), s. 19 5 Anne, c. 8, s. 23 6 Anne, c. 7 (al. 41), s. 1 . 2 . 10 Anne, c. 19, ss. 111—114 s. 113 . 12 4 Geo. I. c. 11 . 6 Geo. I. c. 19, s. 2 7 Geo. II. c. 8, s. 1 9 Geo. II. c. 5, s. 3 12 Geo. III. c. 73 23 Geo. III. c. 18 *32 Geo. III. c. 60 (Fox's Libel Act) . 13, 94, 361, 362, 363, s. 1 3 4 36 Geo. III. c. 7 38 Geo. III. c. 71, s. 17 78 *39 Geo. III. c. 79 . s. 29 48 Geo. III. c. 58, s. 1. *51 Geo. III. c. 65, s. 3 52 Geo. III. c. 155, s. 5 53 Geo. III. c. 127, s. 3 160 . 448 PAGE 456, 55 Geo. III. c. 42 57 Geo. III. c. 6 19 60 Geo. III. c. 4, s. 1 s. 23 & 1 Geo. 478 380 12 448 460, 462 IV. 521 136 478 488 374 374 61 509 83 60 344 344 592, 710 604 604 605 721 154 374 711 517 613 712 , 449 448 461, 466 354 478 380 381 598 598 (68) TABLE OF STATUTES CITED. lxix (The paging refers to the [*] pages.) [*lxix.] PAGE PAGE 60 Geo. III. & 1 Geo. IV. 9 10 Vict. c. 95, . 587 *c. 8, s. 1 . 440, 476, 479, 609. 712 98 . . 372 2 479, 609 113 . . 509 3 . 479 cxxvi. . 588 4 . 479 11 & 12 Vict. c. 12, s. 1 . . 478 3 Geo. IV. c. 40, s. 3 . 474 *s. 3 . 477, 478, *5 Geo. IV. c. 83, s. 4 . 474, 713, 714 721 6 Geo. IV. c. 50, s. 30 . . 598 42, s. 1 . • 589, 590 119 . 13 8 . . 589 7 Geo. IV. c 64, s. "20 . 601 9 . . 590 7 & 8 Geo. IV. c. 28, s. 2. . 596 43 . 386, 392, 393 9 Geo. IV. c. 22, s. 7 . 253 78, s. 2 . . 605 32, s. 3 . 172 5 . . 606 11 Geo. IV. & 1 Wm. IV. 12 & 13 Vict. c. 101, s. 2 . . 510 c. 73, s. 1 . 479 14 & 15 Vict. c. 93 . . 393 2 & 3 Wm. IV. c. 93 . 512 s. 9 . . 510 s. 2 . 512 100, s. 1 . 593, 596, 3 & 4 Wm. IV. c. 42, s. 7 . 521 601 40 . 503 2 . . 596 6&7Wm. IV. c. 76 . 12, 374 377, 714 3 . . 596 s. 6 . . 561 24 . 601 8 . . 561 25 . 596, 601, 13 . . 561 605 *19 . 551, 552, 29 . . 471 553, 713 15 & 16 Vict c. 76 (Common 7 Wm. IV. & 1 Vict. c. 23 . 479 Law Procedure Act, 1852) *1 & 2 Vict. c. 38, s. 2 . 474, 714 s. 40 . 397 105, s. 1 . . 458 *61 100, 114, 120, *2 & 3 Vict. c. 12, ss. 2, 3, 4 . 12, 129, t .31, 593, 721 389, 714 70. . 720 71, s. 49 . . 473 (Schedule B., form 33) . 103 *3 & 4 Vict. c. 9 . 185, 525, 715 16 & 17 Vict. c. 30, s. 4 . . 598 24: s. 2 . 365, 366 5 . . 598 86, s. 3 . . 226 6 . . 599 105, s. 46 .' . 720 113, s. 77 . 720 5 & 6 Vict. c. 38 . . 471 17 & 18 Vict. c. 125 (C. L P. s. 1 . 593 Act, 1854) . 552 97, s. 4 . 518 s.' 24 .' . 573 122, s. 42 . . 252 25 . . 573 6 & 7 Vict. c. 68, s. 1 . 466 27 . 560, 599 14 . 11 79 . 360, 361, *Lord Campbell's Act, c. 96 . 383, 363 413, 597, 689, 716 81 . . 360 s. 1 . 322, 542, 586, 658, 672 82 . 360, 361, 2 322, 323, 541, 542, 544, 577, 363 586, 658, 672 103 . . 599 3 . 426 18 Vict. c. 27 13 4 . 426, 591, 595, 601, 683 *18 & 19 Vict . c. 41 . 708 5 . 385, 426, 438, 595, 683 s. 1 . 17, 61, 88, 6 17, 178, 437, 596, 597, 608 450, 722 7 159, 413, 414, 415, 433 , 436, 602 55, s. 35 . 491 8 . . . . 609, 614 81 . 449 7&8Vict. c. 45 . 462 19 & 20 Vict. c. 16, s. 1 . . 598 84 . . 144 47 . 417 *8 & 9 Vict. c. 75 . . 719 97, s. 12. . 521 s 2 . 323 542, 719 108, s. 23 . 519, 584 *9 & 10 Vict. c. 33, s. 1 . . 720 20 & 21 Vict. c. 43, . . . 474 59 . . . 463 *c. 83 . 12, 472, 722 95, s. 58 . 366, 519 85, s. 21 . . 404 584 25. . 404 73. . 587 ( 39) 26. . 404 lxx TABLE OF STATUTES CITED. (The paging refers to the [*] pages ) [*Ixx.] PAGE PAGE 21 & 22 Vict. c. 90, s. 27 . 5 . 403, 540 22 & 23 Vict. c. 17 . . 386, 589 38 &: 22 A: 23 Vict. c. 17, s. 2 . 385, 592 uid Drugs Act, 6 . .592 1875) . . 54 23 & 24 Vict. c. 28 . . . 83 c. 1 J6 . . . 724 32 . . . 724 77 (Judicature 127, s. 22 . 558 Act, 1875) 24 & 25 Vict. c. 94, s. 8 . . 595 s. 22 . 578, 580 96, s. 46 . . 427 33 . . 366 47 . . 427 c. 86, s. 17 . . 202 c. 134 (Bankruptcy- 40 & 41 Vict. ( 3. 57 (Jud. Act Act, 1861) ss. 101, 102, 253 (Ireland), 1877), s. 53 . 368 26 & 27 Vict. c. 125 . . 708 42 &- 27 & 28 Vict, c. 47, s. 2 . 427 s. 27 . 386, 592 28 Vict. c. 36, s. 16 . . 510 34 . . 389 28 & 29 Vict. c. 18, s. 4 . 601 50 . . 393 5 . 601 59, s. 3 . . 525 6 . 573 Schedule, Part II. . 719, 720 8 . 599 *4S & U - Vict c. 41 (Burial 30 & 31 Vict. c. 35, s. 1 . 595 Laws Amendment Act, 2 385, 592 1880), s. 7 . . 466, 467, 724 3 . 590 *44& 60 (Newspaper 142 . 368, 371 Libel and Registration Act, s. 5 . 365 1881) . 12, 374—393, 560, 725 10 372, 526, s. 1 . 376, 388 527, 585, 2 1 75, 266, 377, 652 587, 670, 3 383, 386, 589, 610 671, 672 4 384, 387, 439, 590 29 . . 588 5 . 386, 592 31 & 32 Vict. c. 54, s. 5 . . 408 6 385, 386, 589, 595 32 & 33 Vict. c. 24 . . .12 7 . 386, 592 s. 1 . . 380 8 . 388 Sched. 1 . 551, 561, 9 . 388, 393 711, 715 10 . 387, 389 2 . 551, 711, 11 389, 392, 393, 561 714, 715, 720 12 . 389, 390 42, s. 21 . 724 13 . 390 68, s. 4 . . 458 14 . 391 71, s. 15. . 406 15 390,391,517,553,561 33 & 34 Vict. c. 49, s. 1 . . 458 16 . 392 79, s. 20 . 474 17 . 392 c. 93 (Married Women's Pro- 18 . 387, 393 perty Act, 1870) . 88, 335, 19 . 393 399, 401, 425 20 . 393 s. 11 . 398 Schedule A. . 388, 393 c. 99 . 12, 374, 377, B . 389, 393, 501 551, 714 45 & 46 Vict, c. 75 (Married 34 & 35 Vict. c. 112 . . . 573 s. 18 . 574 Women's Property Act, 36 & 37 Vict. c. 66 (Judicature 1882), . £ 8, 335, 396, 397, 400, Act, 1873) . . . 424 401 s. 24, subs. 7 . . 55:5 s. 1 . : 50, 83, 372, 541, 580 25, subs. 8 . 359, 360 1, su bs. (2) . . 395 39 . . . 502, 503 12 . 83, 397, 398 67 . . 366, 527, 588 13 . 372, 401, 580 36&37 Vict. c. 91, s. 1 . . 380 14 . . 402 37 & 38 Vict. c. 50 (Married 15 . . 402 Women's Property Act 19 . . 400 Amendment Act, 1*874). 88, 335, 46 & 19 . . 362, 721 401 s. 4 . 719, 720 s. 2 . . 403, 540 1 57, s. 32 . 147. 350 (70) TABLE OF RULES AND ORDERS CITED. (The paging refers to the [*] pages.) [*lxxi] RULES OF THE SUPREME COURT, 1883. Order PAGE PAOE II. rule 4 . 519 Order XX. rule 1 . 528 XI. 409, 519 ,, 4 . 587 „ if • . 519 XXI. ,, 4 . 536 „ 3 . . 401 ,, 20 . 515 „ 6 . 409 XXII. „ 1 323, 324, XIII. ,, 1 • . 405 370, 541, 542 „ 2 . 526 ,, 4 . 525 XVI. „ 1 418 , 419, 516 \\ XXIII. „ 6 544 „ 2 . . 516 XXV. ,, 1 536 ,, 3 . 421 „ 2 536 ,, 4 . 418, 420, 516, 553 „ 3 ,, 4 536 533 „ 5 420, 516 XXVII. „ 4 526 ,, 7 418 420, 516 „ XXVIII. „ 1 ' 524,' 564, 572 „ 11 • . 516 „ 6 . 564, 572 „ 12 . . 572 „ 12 . . 572 „ 18 . . 405 XXXI. ,, 1 . 545, 546 ,, 19 . . 405 , 6 . . . 550 „ 21 . . 405 , 7 549 XVII. ,, 1 • 398, 407 , 26 . 545 ,, 4 . . 398 „ XXXVI. , 2 557 XVIII. ,, 1 523, 525 , 7 . 557 ., 4 . 397, 523 , 12 557 ,, 6 418, 523 , 14 . 526 ,, 7 . 523, 525 , 15 526 „ 8 523, 525 , 19 . 526 „ 9 . 523, 525 , 31 526 XIX. ,, 4 . 120, 531, 542 , 35 . , 36 526 526 „ 6 . . 538 , 37 . 31*9, 320, 321, „ 7 . 533 526, 542, 543, „ 8 . . 533 548, 556, 574, „ 11 . . 536 577, 655, 656 „ 13 . . 535 , 39 . . . 571 „ 15 . . 540 , 51 503 „ 17 . . 536 „ XXXVII. , , 5 . 556 „ 18 . 537, 544 „ XXXIX. 580 ,, 21 . . 523 , 1 • 581 ,, 25 . . 530 , 4 580 „ 27 . . 533 , 6 . . . 581 (71) lxxii TABLE OF RULES AND ORDERS CITED. (The paging refers to the [*] pages.) t* lxxii] * PAGE PAGE Order XL. rule 4 580 Order LIX. rule 11 . . . 587 ,, 5 . 581 ,, 12 . 587 ,. 10 580 ,, 13 . . . 587 XLII. „ 23 . 408 „ 14 . 587 XLIV. 503 ,, 15 . . . 587 ' ,, 2 . . 500 ,. 16 . 587 XLIX. „ 8 525 „ 17 . . . 587 " LV. „ 27 . 405 LXV. ,, 1 . 365, 368 » LVLTI „ 4 „ 5 . 581 580 526, 527, 579, 588 LIX. ,, 9 587 2 . . 369 " ,, 10 . 587 ,, 6a. . 408, 525 (m PART I. THE LAW OF LIBEL AND SLANDER. CHAPTER I. INTRODUCTORY No man may disparage or destroy the reputation of another. Every man has a right to have his good name maintained unim- paired. This right is a jus in rem, a right absolute and good against all the world. Words which produce any perceptible injury to the reputation of another are called Defamatory. Defamatory words, if false, are actionable. False defamatory Avords, if written and published, constitute a libel ; if spoken, a slander. Words which on the face of them must injure the reputation of the person to whom they refer, are clearly defamatory, and, if false, are actionable Avithout proof that any particular damage has followed from their use. Words, on the other hand, which merely might tend to injure the reputation of another are primd facie not defamatory, and even though false are not actionable, unless as a matter of fact some appreciable injury has followed from their use. Illustrations. To say "A. is a coward," or "a liar," or " a rascal," is not defamatory,, unless it can be proved that some one seriously believed and acted on the asser- tion, to the prejudice of A. Such words, though false, are not actionable with- out some [* 2] evidence to show that A.'s reputation has as a matter of fact been actually impaired thereby. Be minimis non curat lex. To say of B. : — " He forged his master's signature to a cheque for 1001." is clearly defamatory, and, if false, actionable. It must injure B.'s reputation to bring such a specific charge against him. In any given case, the fact that the words employed by the defendant have perceptibly injured the plaintiff's reputation may be either (i) presumed from the nature of the words themselves ; or, (ii) proved by evidence of their consequences. 1 Lib. & Slan. (73) / 2 INTRODUCTION. (i) It will be presumed from the nature of the words themselves, [a) If the words, being written and published or printed and published, disparage the plaintiff or tend to bring him into ridicule and contempt. (b) If the words, being spoken, (1 ) charge the plaintiff with the commission of a crime ; (2) impute to the plaintiff a contagious disorder tending to exclude him from society ; (3) are spoken of the plaintiff in the way of his profes- sion or trade, or disparage him in an office of pub- lic trust. In all these cases the words are said to be actionable per se, because on the face of them they clearly must have injured the plaintiff's reputation. (ii) But in all other cases of spoken words, the fact that the plaintiff's reputation has been injured thereby, must lie proved at the trial by evidence of the consequences that directly resulted from their utterance. Such evidence is called " evidence of special damage," as distinguished from that general damage which the law assumes, without express proof, to follow from the employment of words actionable per se. Illustrations. To say of A. " He is a forger and a felon," or " He hath the French pox," to call a physician a quack, or a tradesman a bankrupt, to say of a magistrate that [* li] he is a corrupt judge, is in each case actionable without proof of special damage. A fortiori, if the words be written, or printed, and published. But to call a man a cheat, a rogue, and a swindler, or to call a woman an adulteress, is not actionable, without proof of special damage, if the words be spoken only ; but is actionable per se, if the accusation be reduced into writing and published to the world. . Thus the presumption that words are defamatory arises much more easily in cases of libel than in cases of slander. Many words Avhich if printed and published would be presumed to have injured the plaintiff's reputation, will not be actionable per se, if merely spoken. Two reasons are usually given for this distinction : — 1. A slander may be uttered in the heat of a moment, and under a sudden provocation ; the reduction of the charge into writing and the subsequent publication of a libel show greater deliberation and malice. 2. Vox emisxa volat ; litera scripta manet. The written or printed matter is permanent, and no one can tell into whose hands it may come. Every one now can read. The circulation of a newspaper is enormous," especially if it be known to contain libellous matter ; and many people implicitly believe every word they see in print. And even a private letter may turn up in after years, and reach persons for whom it was never intended, and so do incalculable mischief. Whereas a slander only reaches the immediate by- standers, who can observe the manner and note the tone of the speaker, — who have heard the antecedent conversation which may greatly qualify his assertion, — who probably are acquainted with the speaker, and know what value is to be attached to any charge (74) INTRODUCTION. 3 made by him ; the mischief is thus much less in extent, and the publicity less durable. This sharp distinction between slander and libel has been recognized in English law by Hale, ('.!>., in King v. Lake,2 Vent. 28 ; Ilardres, 470 ; by Lord llardwicke, C.J., in Bradley v. Methwyn, Selw. N. P. 982, and by Lord Mansfield, ( '.J., in Thorley v. Lord Kerry, 4 Taunt. 355 ; 3 Camp. 214, n., and in numerous other cases, and is far too well established to be ever shaken. The intention or motive with which the words were employed is, as a rule, immaterial. If the defendant has in fact injured the plaintiff's reputation, he is liable, although he did not intend so to do, and had no such purpose in his mind when he spoke or wrote the words. Every man must be presumed to intend and to know the [*1] natural and ordinary consequences of his acts : and this pre- sumption (if indeed it is ever rebuttable) is not rebutted merely by proof that at the time he uttered or published the words the defendant did not attend to or think of their natural or probable consequences, or hoped or expected that these consequences would not follow. Such proof can only go to mitigate the damages. Sometimes, however, it is a man's duty to speak fully and freely, and without thought or fear of the consequences ; and then the above rule does not apply. The words are privileged by reason of the occasion on which they were employed ; and no action lies therefor, unless it can be proved that the defendant was actuated by some special spite or some wicked and malicious motive. (See post, Chapters VIII. and IX.) But in all other cases (although the pleader invariably alleges that the words were spoken or published falsely and maliciously) malice in fact need never be proved at the trial ; the words are actionable, if false and defamatory, although spoken or published accidentally or inadvertently, or with an honest belief in their truth. " That unfortunate word ' malice ' has got into cases of actions for libel. We all know that a man may be the publisher of a libel without a particle of malice or improper motive. Therefore the case is not the same as where actual and real malice is necessary. Take the case where a person may make an untrue statement of a man in writing, not privileged on account of the occasion of its publication ; he would be liable although he had not a particle of malice against the man." Per Lord Bramwell in Abrath v. North Eastern Rail. Co., 11 App. Cas. at pp. 253, 254 ; 55 L. J. Q. B. at p. 460 ; 55 L. T. at p. 65. Illustrations. The Protestant Electoral Union published a book called " The Confessional Unmasked." Their motive in so doing was "not only innocent but praise- worthy," viz.: — to promote the spread of the Protestant religion, by exposing the abuses of the Roman Catholic system ; but certain passages in the book Were necessarily obscene. Held that its publication was a misdemeanor. All copies which the defendant had for sale were ordered to be destroyed as obscene books. Neither the law nor the religion of England permits anyone to ' ' do evil that good may come." R. v. HicJdin, L. R. 3 Q. B. 360 ; 37 L. J. M. C. 89 ; 16 W. R. 801 ; 18 L. T. 395 ; 11 Cox, C. C. 19. (75) 4 INTRODUCTION. P 51 Steele v. Brannan, L. R. 7 C. P. 261 ; 41 L. J. M. C. 85 ; 20 W. R. 607 ; 26 L. T. 509. And see B. v. Bra&laugh and Besant, 2 Q. B. D. 569 ; 46 L. J. M. C. 286. If a man deliver by mistake a paper out of his study where he had just writ- ten it ; he will it seems he liahle to an action, if the paper prove libellous, although he never intended to publish that paper, but another innocent one. Note to Mayne v. Fletcher, 4 M. & Ry. 312 ; 9 B. & C. 382 ; cf. B. v. Payne, 5 Mod. 167. The plaintiff told a laughable story against himself in company : the defend- ant published it in the newspaper to amuse his readers, assuming that the plain- tiff would not object. The plaintiff recovered damages, 101. Cook v. Ward, 6 Bing. 409 ; 4 M. & P. 99. For though he told it of himself to his friends, he by no means courted pub- lic ridicule. And that the publication was " only in jest " has long been held no defence. Where a clergyman in a sermon recited a story out of Foxe's Martyrology, that one Greenwood being a perjured person and a great persecutor, had great plagues inflicted upon him, and was killed by the hand of God ; whereas in truth, he never was so plagued, and was himself actually present at that dis- course, — the words being delivered only as a matter of history, and not with any intention to slander, it was adjudged for the defendant. Greenwood v. Prick, Cro. Jac. 91, cited in 1 Camp. ?,70 ; and also in B. v. Williams, 13 How. St. Tr. 1387. But Lord Denman and the Court of Q. B. said most positively in Hearne v. Stowett, 12 A. & E. 726, that this case is not law. Mr. Greenwood would there- fore in the present day have recovered at least nominal damages. The proprietor of the Times retired to live in the country, leaving the entire management of the paper to his son, with whom he never interfered ; yet he was held criminally liable for a libel which appeared in the paper in his absence and without his knowledge. And though now since Lord Campbell's Act he would probably be acquitted in any criminal proceeding, he would certainly be held liable for damages in a civil action. B, v. Walter, 3 Esp. 21. B. v. Gutch and others, Moo. & Mai. 433. B. v. Dodd, 2 Sess. Cas. 33. A corporation is liable for a libel published by its authority ; although the corporation, as distinct from its members, cannot be guilty of malice in the ordinary sense of the word. Per Lord Bramwell in Abrath v. Nortli Eastern Bail. Co., 11 App. Cas. at pp. 253, 254 ; 55 L. J. Q. B. at p. 460; 55 L. T. at pp. 65, 66. Even a lunatic is liable to an action for libel or slander unless his insanity is well known to all who hear or read his words, in which case no damage would be incurred, as the words would produce no effect. Dickinson v. Barber, 9 Mass. 225. Yeates et ux. v. Beed etux., 4 Blackf. 463. A barrister, editing a book on the Law of Attorneys, referred to a case, Be Blake, as reported in 30 Law Journal, Q. B. 32, and stated that Mr. Blake was struck off the rolls for misconduct. He was in fact only suspended for two years, as appeared from the Law Journal report. The publishers were held 1*6] liable for this carelessness, although of course neither they nor the writer bore Mr. Blake any malice. Damages 100£. Blake v. Stevens and others, 4 F. & F. 232 ; 11 L T. 543. The printers of a newspaper by a mistake in setting up in type the announce- ments from the London Gazette, placed the name of the plaintiff's firm under the heading " First Meetings under the Bankruptcy Act " instead of under " Dis- solutions of Partnership." An ample apology was inserted in the next issue: no damage was proved to have followed to the plaintiff ; and there was no sug- gestion of any malice. In an action for libel against the proprietor of the paper, the jury awarded the plaintiff 50?. damages. Held that the publication was libellous, and that the damages awarded were not excessive. Shepherd v. Whitaker, L. R. 10 C. P. 502 ; 32 L. T. 402. (76) INTRODUCTION". 5 False defamatory words then, if spoken, constitute a Blander : if written and published, a libel. The word " written " includes any printed, painted, or any other permanent representation not transient in its nature as are spoken words. The writing may be on paper, parchment, copper, wood, or stone, or on any kind of substance in fact; and may be made with any instrument, pen and ink, blacklead pencils (Geari/ v. Physic, 5 15. & C. 238), or in chalk, &c. A picture or effigy may also be a libel, or any other mark or sign exposed to view and conveying a defam- atory meaning. (5 Rep. 125.) Illustrations. A caricature or scandalous painting is a libel. Anon., 11 Mod. 99. Austin v. Culpepper, 2 Show. 313 ; Skin. 123. Du Bost v. Beresford, 2 Camp. 511. A chalk mark on a wall may be a libel, and as the wall cannot conveniently be brought into Court, secondary evidence may be given of the inscription. Mortimer v. M'Callan, 6 M. & W. 58. Tarpley v. Blabij, 7 C. P. 395. See Spall v. Massey and others, 2 Stark. 559. Burning a man in effigy may be a libel on him ; but those who merely stand by looking on are not liable. Eyre v. Oarlick, 42 J. P. 68. A statue may be a libel ; so is fixing up a gallows against a man's door. Hawkins' Pleas of the Crown, 8th edition, 542 ; 5 Rep. 125, b. Hieroglyphics, a rebus, an anagram, or an allegory may be a libel. Ironical praise may be a libel. There is a further important distinction between slander and libel. Every libel is a crime ; a slander on a private [*7] individ- ual is not. It is only when the words uttered are blasphemous, seditious or obscene that the State is concerned to interfere and punish the speaker. It is, I think, clearly necessary that there should be a criminal as well as a civil remedy 'for libel, for the following reasons : — 1. The evil done by libels is so extensive, the example set so per- nicious, that it is desirable that they should be repressed for the public good. Slanders do less mischief as a rule, are not permanent, and are more easily forgotten; their evil influence is not so widely diffused. 2. Most libellers are penniless, and a civil action has' no terrors for them. The plaintiff will never get his damages. In fact the proprietor of many a low newspaper rather rejoices at the prospect of a civil action for libel being brought against him. He regards it as a gratuitous advertisement for his paper, cal- culated to increase its circulation in these degenerate days. 3. Another reason often assigned for the interference of the State is, that libels conduce to a breach of the peace ; but that reason would, I think, appby with equal, if not greater force to slanders. Lush, J., says, in R. v. Holbrooh, 4 Q. B. D. at p. 40, " Libel on an individual is, and has always been, regarded as both a civil injury and a criminal offence. The person libelled may pursue his (77) INTRODUCTION. remedy for damages or prefer an indictment, or by leave of the Court a criminal information, or he may both sue for damages and indict. It is ranked amongst criminal offences because of its supposed ten- dency to arouse angry passion, provoke revenge, and thus endanger the public peace, but the libeller is not the less bound to make com- pensation for the pecuniary or other loss or injury which the libel might have occasioned to the person libelled." The fact that libel is a crime as well as a tort, produces other con- sequences in law which it may be well to briefly notice here, though they are not strictly within the scope of the present treatise. _ No action can be maintained for the price of libellous pictures {Fores v. Johnes, 4 Esp. 97), or for their value, if destroyed by the person ridiculed. (Du Bost v. Beresford, 2 Camp. 511.) A printer cannot recover for printing a libel. (Poplett v. Stockdale, Ry. & M. 337 \Bvll v. Chapman, 8 Ex. 104.) If a printer undertakes to print a book for a certain price, and discovers as the work proceeds that the matter is defamatory, he may decline to continue the work, and can recover for such part of the work printed as is not defamatory in an [ *8 ] action for work and labour done and materials provided, the special contract notwithstanding. ( Clay v. Yates, 1 II. & N. 73; 25 L. J. Ex. 237; 4 W. R.557; 27 L. T. (Old S.) 126.) Nor can an action be maintained for breach of a contract to furnish manuscript of defamatory matter ( Gale v. Leckie, 2 Stark. 107), or of a contract to let rooms to be used for the delivery of blasphemous lectures {Cowan v. Milbourn, L. R. 2 Ex. 230; 36 L. J. Ex. 124 ; 15 W. R. 750; 16 L. T. 290), or for pirating a libellous book {iStockdale v. Onwhyn, 5 B. & C. 173; 7 D. & R. 625; 2 C. & P. 163). There is no copyright in any libellous or immoral book, or picture. A Court of Equity will not interfere in one way or another. It will not grant an injunction to restrain a piracy of an illegal book or picture nor decree an account of the profits made thereby. (Per Lord Eldon, in Walker v. Walker, 1 Ves. 1 ; in Southey v. Sherwood, 2 Mer. 435, and in Laiorence v. Smith, Jacob, 471.) No contract will be implied to indemnify a party against the con- sequences of an illegal act, such as the publication of a libel ; and any express promise to that effect is void {Shackell v. Rosier, 3 Sc. 59; 2 Bing. N. C. 634 ; Arnold v. Clifford, 2 Sumner, 238) ; for it is a promise on an illegal executory consideration, an incitement to do an illegal act. And the proprietor of a newspaper convicted and fined for the publication of a libel which was inserted in his paper without his knowledge or consent by the editor, has no right of action against the editor for the damages sustained through such conviction. {Colbum v. Patmore, 1 C. M. & R. 73; 4Tyr.677 ; and see Merryioeather v. Mxan, 2 Sm. L. C. 8th ed. 546; 8 T. R. 186; Moscati v. Lawson, 7 C. & P. at p. 35.) Even an express promise to indemnify another if he will publish a libel is void. But it has been decided in America that an express promise to indemnify another against the consquences of an illegal act already done is binding. ( Griffiths v. Hardenburgh, 41 N. Y. 469; Howe v. Bvffalo & Erie Rail Co., 38 Barbour (N. Y.) 124.) (78) introduction: So, too, a promise to abstain from publishing a libel is no con- sideration for a contract. (Brown v. Brine, 1 Ex. D. 5 ; 45 L. J. Ex. 129; 24 W. R. 177 ; 33 L. T. 703.) Criminal proceedings for libel maybe taken either at common law, or under certain statutes; the remedy may be either by indict- ment or information; though informal ions are only granted in urgent cases, where the publication of the libel is likely to produce great public mischief and must therefore be promptly suppressed. [*9j Thus we see that there are two criminal remedies for libel — by criminal information and by indictment, — in addition to the civil remedy of action for damages. It is right that there should be a criminal remedy as well as a civil one ; but is it essential that there should be two criminal remedies ? Might not the remedy by indictment — involving as it does, a triple investigation of the charge, before the magistrate, the grand jury, and the petty jury — be abolished ? The remedy by way of criminal information would insure the punishment of all offenders in whose conviction the public were interested, while an end would be put to the numerous petty indictments for libel which are obviously vexatious, and tendered solely through personal malice. Moreover, on the argu- ment of the rule, the defendant himself may make an affidavit, whereas in proceeding by indictment, the defendant's mouth is more or less closed. If one or two of the rules relating to criminal information were relaxed, I think it would be found that the lesser criminal remedy might safely be dispensed with, and yet that no offender, whose publications were a serious outrage on society, would escape the punishment he so justly merited. The Newspaper Libel and Registration Act is a step in this direction, sect. 3 requir- ing that no indictment shall be presented against the proprietor, publisher, editor, or any other person responsible for the publi- cation of a newspaper for any libel published therein without the written fiat of the Director of Public Prosecutions: and such fiat will be refused whenever the Director considers that a civil action will meet the requirements of the case. Thus, now an indictment against a newspaper involves a fourfold investigation of the facts. I still retain the opinion expressed in the former editon of this book that the better method would be to abolish altogether indictments for defamatory libels, and to allow criminal informations to be filed in all cases in which the Court shall be of opinion that the civil remedy by action is an insufficient protection to the public. Lush, J., says, in the passage cited ante, on p. 7, the person libelled may " both sue for damages and indict ; " and so in strict law he may. But practically he has to elect between his three remedies. He cannot take both civil and criminal proceedings at once ; a judge would stay one or the other. Strictly, if he means to take both, he should take criminal proceedings first. But an action for damages after the defendant had been either acquitted or con- victed for the same libel would be very hopeless work. And so wo'uld a criminal 'prosecution after an action. After a rule for a criminal information had been made absolute, no civil action can ■ (79) 8 INTRODUCTION. be brought. R. v. Sparrow, [*10] 2 T. R. 198.) If it be refused or discharged, the applicant can indict the defendant, or, by leave of the Court, he may bring a civil action : see post, p. 523. The person defamed has a civil remedy to recover damages, and he can also proceed criminally by way of information or indictment, and have the defamer punished as an offender against the State. But there is now no method of anticipating or preventing a libel or a slander ; there is no longer any censorship of the press in this country. Any man is free to speak or to write and publish what- ever he chooses of another, subject only to this, that he must take the consequences, should a jury deem his words defamatory. This is what is meant by " the liberty of the press." ( Commonwealth v. Blanding, 3 Pick. (20 Mass.) 313.) " The liberty of the press," says Lord Mansfield, in R. v. Dean of St. Asaph, 3 T. R. 431, n., "consists in printing without any pre- vious licence, subject to the consequences of law." Lord Ellen- borough says in R. v. Cobbett, 29Howeh"s St. Tr. 49 : "The law of England is a law of liberty, and consistently with this liberty, we have not what is called an imprimatur ; there is no such prelimin- ary licence necessary ; but if a man publish a paper, he is exposed to the penal consequences, as he is in every other act, if it be ille- gal." Lord Kenyon shortly puts it thus in R. v. Cuthell, 27 Howell's 'St. Tr. 675: "A man may publish anything which twelve of his countrymen think is not blamable." But it was by no means always so in England. It was quickly perceived that the printing-press may be as great a power for evil as for good. And whenever any large proportion of any nation is disaffected towards the Government, to allow a free press is almost impossible. (i) The first plan adopted by our English monarchs was to keep all the printing-presses in their own hands, and allow no one to print anything except by special Royal licence. All printing- presses were thus kept under the immediate supervision of the King in Council', and regulated by proclamations and decrees of the Star Chamber by virtue of the King's prerogative. In 1557 the Station- ers' Company [*ll] of London was formed. The exclusive privi- lege of printing and publishing in the English dominions was thus given to ninety-seven London stationers and their successors by regular apprenticeship, and the Company was empowered to seize alt publications by men outside their guild. Later, by a decree of the Star Chamber in 1586, one printing press was allowed to each University. (ii) Not content with this government monopoly of the " Art and mysterie of Printing," which continued, in theory at all events, till 1637, Queen Elizabeth, in 1559, determined to have all books read over by loval bishops and privy councillors before they were allowed to go to the official press. In 1586 the Star Chamber enacted that alfbooks should be read over in manuscript, and licensed by either the Archbishop of Canterbury or the Bishop of London, save law books which were to be read" and licensed by the Chief Justice of either Bench or the Lord Chief Baron (a practice which continued (80) LIBERTY OF THE PRESS. 9 down to the middle of the last century ; see the prefaces to Burrows' and Douglas' Reports). Subsequently the Master of the Revels usurped the right of revising poems and plays, and the Vice-Chan- cellors of the Universities were allowed for convenience sake to license books to be printed at the University presses. It was soon found impossible to restrict the number of printing-presses in the country, and the Government therefore insisted all the more vehe- mently that no book should be published without a previous licence. By the Star Chamber decree dated July 11th, 1637, all printed books were required to be submitted to the licensers and entered upon the registers of the Stationers' Company before they could be published ; if this was not done, the printer was to be fined, and for ever disabled from exercising the art of printing, and his press and all copies of the unlicensed book forfeited to the Crown. The old word " Imprimatur "=" let it be printed" was still used to denote the consent of the licenser to its publication. After the abolition of the Star .Chamber, the Long Parliament issued two orders, March 9th, 1642, and June 14th, 1643, very similar in effect to the decree of the Star Chamber last mentioned. Against these orders Milton published his noble but ineffectual protest, the " Areopagi- tica" (November 24th, 1644). The censorship of the press contin- ued in England till 1695, and then its abolition was rather accidental than otherwise. (See Macaulay's " History of England," e. xix., vol. iii., pp. 399—405 ; 13 & 14 Car. II. c. 33; Proclamation o£ May 17th, 1680 ; 1 Jac. II. c. 17.) The only vestige remaining of such censorship is the control of the Lord Chamberlain over plays. By. the Theatres Regulation Act, 1843 (6 & 7 Vict. c. 68), s. 14; it is enacted [* 12] that it shall be lawful for the Lord Chamberlain for the time being, whenever he shall be of opinion that it is fitting for the preservation of good manners, decorum, or of the public peace so to do, to forbid the acting or presenting any stage play, or any act, scene, or part thereof, or any prologue or epilogue, or any part thereof, anywhere in Great Britain, or in such theatres as he shall specify, and either absolutely or for such time as he shall think fit, (iii) A third plan is to allow any book to be printed and published without any supervision or licence; but as soon as the attention of the Government is called to its harmful tendencies, to seize all the stock at the publishers and booksellers, and prevent the publisher from issuing any further copies. The Lord Lieutenant was till the year 1875 empowered to do this in Ireland, should any work appear to him seditious. Magistrates in England may deal thus with books proved to be obscene by virtue of Lord Campbell's Act (20 & 21 Vict. c. 83). The Court of Chancery and the House of Lords have occasionally by injunction forbidden the further publication of libels which they deemed contempts of Court, But in all other cases, neither the Crown nor any Court of law can restrain the indiscrimi- nate sale or distribution of any work, however pernicious they may deem it to be, till it has been found to be a libel. (See Chapter XL, post, p. 337. (iv) Our present law permits any one to say, write, and publish (81) 10 INTRODUCTIOX. what he pleases ; but if he make a bad use of this liberty, he must be punished. If lie unjustly attack an individual, the person defamed may sue for damages ; if, on the other hand, the words be written or printed, or if treason or immorality be thereby inculca- ted, the offender can be tried for the misdemeanor either by infor- mation or indictment. In order that the criminal might be easily detected, it was enacted in 1 7 1 i2 that no person, under a penalty of 207., should sell or expose for sale any pamphlet without the name and place of abode of some known person by or for whom it was printed or published, written, or printed thereon. (10 Anne, c. 19, s. 113, repealed in 1871 by the 33 & 34 Vict. c. 99.) A similar enactment as to newspapers, 6 & 7 Will. IV. c. 76, was also repealed by the 32 & 33 Vict. c. 24. And now every paper or book which is meant to be published or dispersed must bear on it the name and address of the printer (2 & 3 Vict. c. 12, s. 2) ; and the printer must for six calendar months carefully preserve at least one copy of each paper printed by him, and write thereon the name and address of the person who -employed and paid him to print it. (39 Geo. III. c. 79, s. 29.) And now by the Newspaper Libel and Registration Act, 1881 (44 & 45 Vict. c. 60) a register of newspaper proprietors is established [* 13] at Somerset House, where any one can ascertain for a shilling who is the person responsible for what has appeared in any newspaper. Newspapers were indeed formerly regarded with great jealousy by the Government, and subjected to heavy duties. Under Charles II. and James II. the London Gazette (a small sheet appearing twice a week, every Monday and Thursday) was the only paper permitted to publish political news. Even their size was regulated by statute. The 6 Geo. IV. c. 119, first allowed news- papers to be printed on paper of any size. Moreover, till the 18 Vict. c. 27, they had to be printed on stamped paper. But in spite of all such petty restrictions, our press has been, ever since the passing of Fox's Libel Act, 32 Geo. III. c. 60, the freest in the world. A man's reputation may also be injured by the deed or action of another without his using any words ; and for such an injury he has an action on the case ; but such cases are not within the scope of the present treatise. Illustrations. A banker having in his hands sufficient funds belonging to his customer dis- honours his cheque : the customer may recover substantial damages, without proof of any special damage ; for it is clear that such an act must injure the customer's reputation for solvency. Mdrsetti v. Williams, 1 B. & Ad. 415. Robinsonr. Marchant, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 156. Rolin and" another v. 8teward,P. O., 14 C. B. 595 ; 23 L. J. C. P. 148; 18 Jur. 576 ; 2 C. L. R. 759. Defendant caused plaintiff's goods to be seized on an unfounded claim for debt ; Hie neighbours consequently deemed the plaintiff insolvent. The plaintiff was held entitled to substantial damages. Brewer v. Dew and another, 11 M. & "W. 625. Bracegirdle v. Orford, 2 Maule & S. 77. The defendant set up a lamp on the wall adjoining the plaintiff's dwelling- (82) WORDS CAUSING DAMAGE. 1 1 house and he kept it burning in the daytime, thereby inducing the passers-by to believe that plaintiff's house was a brothel. This was held to be a trespass to the wall and being permanent in its nature also a libel in effigy. Jefferif.iv. Buncombe, 2 Camp. 3; 11 East, 226. SpaM v. Massey, 2 Stark. 559. Plunket v.Oilmore, Fortescue, 211. And so as to " riding Skimmington," " rough music," burning in effigy, and other modes of holding a man up to public obloquy without especial words of defamation, See Sir William Bolton v. Dean, cited in Austin v. Culpepper, Skin. 123 ; 2 Show. 313. R. v. Roberts and others, 3 Keble, 578. Mason v. Jennings, Sir T. Raym. 401. Cropp v. Tilncy, 3 Salk. 226. Eyre v. Garlick, 42 J. P. 68. [* 14] So too in actions of false imprisonment and malicious prosecution, the jury may award damages for the injury done to the plaintiff's reputation by the charge made against him, and by his being marched in custody through the public streets ; although in the former, the gist of the action is the direct trespass to the person, and in the latter the maliciously setting the law in motion with- out reasonable or probable cause. In Eoman law there are many instances given in which a man's reputation was assailed, not by words, but by acts. E. g. : (i) By refusing to accept a solvent peison as surety for a debt, intending thereby to impute that he is insolvent. (D. 2, 8, 5, 1 .) (ii) By claiming a debt that is not due, or seizing a man's goods for a fictitious debt, with intent to injure his credit. (Gai. III. 220; Just. Inst. IV. iv. 1 ; D. 47,. .10, 15, 33.) (iii) By claiming a person as your slave, knowing him to be free. ( D. 47, in, 12, & 22.) (iv) By forcing your way into the house of another. (D. 47, 10, 23, &44.) (v) By persistently following about a matron or young girl respectably dressed, such constant pursuit being an imputation on their chastity. (Gai. III. 220 ; Just. Inst. IV. iv. 1 ; D. 47, 10, 15, 15—22.) (vi) By needlessly fleeing for refuge to the statue of the emperor, thereby making it appear that some one was unlawfully oppressing you. (D. 48, 16, 28, 7); though it is difficult to see in this case how it was determined who was the right plaintiff. On the other hand, words may cause a man damage without in any way affecting his reputation ; and for such words, if spoken without lawful occasion, an action on the case will lie, provided it can be shown that such damage is the natural and necessary con- sequence of the words, or was the result which the speaker intended and designed. Illustration. I. — Words disparaging something, or impugning plaintiff's TITLE THERETO. If A. falsely and maliciously disparages an article which B. makes or sells, and special damage results therefrom, an action lies, although no imputation was cast on B. 's personal or professional character. Young v. Macrae, 3 B. & S. 264 ; 32 L. -J. Q. B. ; 11 TV R. 63 ; 9 Jur. N. S. 539 ; 7 L. T. 354. And see pp . 147 — 150. To assert falsely and iinnecessarily that there is a flaw in my title to the free- hold I own, is actionable if I thereby am prevented from selling it . Banister v. Banister, 4 Rep. 17. And see pp. 138—147. To say falsely that a ship is unseaworthy, intending thereby to deter seamen (83) 12 INTRODUCTION. [* 15] from sailing in her, is actionable if in consequence they refuse to go to sea in her. Casey v. Arnott, 2 C. P. D. 24 ; 46 L. J. C. P. 3 ; 25 W. It. 46 ; 35 L. T. 424. To set up a false and foundless claim of lien on goods I have bought is actionable', if special damage ensue. Green v. Button, 2 C. M. & It. 707. N.B. An attack on a man's property or on the tilings he makes or sells may sometimes be also an indirect attack on himself. See pp. 30, 133. II. — WORDS DISPARAGING THE REPUTATION OP SOME PERSON OTHER THAN THE PLAINTIFF. As a rule, A. cannot sue for words defamatory of B. although he may suffer loss or inconvenience therefrom. It is generally impossible to satisfy the Court that the speaker intended this result or that it is the natural and necessary consequence of his words. Ashley v. Harrison, 1 Esp. 48 ; Peake, 164 vel 256. Brayne v. Cooper, 5 M. & W. 249. A brother cannot sue for slander of his sister. Subbaiyar v. Kristnaiyar and another, I. L. It., 1 Madras, 383. Defendants attended the funeral ceremony of Premji Ludha, the headman of the Karad caste, and there before a large concourse of people made a violent attack on the moral and religious character of the deceased, declaring that he was " path," a term of great opprobrium and reproach among Hindoos. Many of those assembled left at once in consequence, and the family of the deceased suffered great pain and annoyance, and also were much lowered in public esti- mation. Plaintiff sued as the heir and nearest relation of the deceased for damages. Held no action lay. Lnekumsey Rowji v. Ilurbun Nursey and others, I. L. R., 5 Bom. 580. But see R. v. Topham, 4 T. R. 126, post, p. 424. But a husband may recover, without joining his wife as a co-plaintiff, for damage caused to himself by words defamatory solely of her. Baldwin v. Flower, 3 Mod. 120. Guy v. Gregory, 9 C. & P. 584. Dengate v. Gardiner, 4 M. & W. 5 ; 2 Jur. 470. Wilson v. Goit, 3 Smith (17 N. Y. R.)445. If A. and B. are rival shopkeepers, and B. spreads a false and groundless report that A.'s shopman has the scarlet fever, intending thereby to prevent the public from going to A.'s shop, and succeeds in this malicious device, A. can sue B. Per Kellv, C. B., in Riding v. Smith, 1 Ex. D. 96 ; 45 L. J. Ex. 281 ; 24 W. R. 487 ; 34 L. T. 500. III. — Other words. " Undoubtedly all words are actionable if a special damage follows." Per Heath, J., in Moore v. Meagher, 1 Taunt. 44. If a man induces a servant to break his contract with his master and quit hi? employment, the master has an action per quod servitium amisit. Lumley v. Gye, 2 E. & B. 216 : 22 L. J. Q. B. 463 ; 17 Jur. 827. Bowen v. Hall and others, 6 Q. B. D. 333 ; 50 L. J. Q. B. 305 ; 29 W. R. 367 ; 44 L. T. 75 ; J. P. 373. [* 16] If a man menace my tenants at will, of life and member, per quod they depart from their tenures,* an action xqwn the case will lie against him, but the menace without their departure is no cause of action. Conesby's Case, Year Book, 9 Hen VII., pp. 7, 8 ; 1 Roll. Abr. 108. If defendant threatens the plaintiff's workmen, so that they do not dare to go on with their work, whereby the plaintiff loses the selling of his goods, an action lies. Garret v. Taylor (1621), Cro. Jac. 567 ; 1 Roll. Abr. 108. Tartleton and, others v. McGaidey, Peake 270. (84) WORDS CAUSING DAMAGE. 13 And see Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551 ; 37 L. J. Ch. 889 ; 16 W. R 1138 ; 19 L. T. 64. Skinner v. Kitch, L. R. 2 Q. B. 393 ; 36 L. J. M. C. 322 ; 15 W.R. 830 ; 16 L. T. 413. If a man should lie in wait " and fright the hoys from going to school, that schoolmaster might have an action for the loss of his scholars." Per Holt, C. J., in Keeble v. Hickeringill, 11 East, 576, n. Plaintiff was making money at Glasgow by printing silk handkerchiefs with an ornamental design : defendant, hoping to acquire that design for himself, falsely represented to the plaintiff that it was a registered pattern, that the true owner had compelled him to give up plaintiff's name, and was about to proceed against plaintiff in Chancery for an injunction ; plaintiff, naturally alarmed, stayed the execution of certain orders in hand for handkerchiefs with that design ; and travelled up to London to explain matters to the supposed true owner ; defendant meanwhile went on printing and selling silk handkerchiefs printed with the design, Held, that the plaintiff had a good cause of action, it appearing that defendant had knowingly uttered a falsehood with intent to deprive plaintiff of a benefit and acquire it to himself, and the damage naturally flowing from plaintiff's belief in the truth of defendant's statement, Barky v. Walford, 9 Q. B. 197 ; 15 L. J. Q. B. 369 ; 10 Jur. 917. (85) CHAPTER II. [•«] DEFAMATORY WORDS. Words which produce any appreciable injury to the reputation of another are called Defamatory. Diffamare est in maid famd ponere (Bartol). The question in each case therefore is : Has the reputation of this individual plaintiff been appreciably impaired in consequence of the words employed by the defendant ? No general rule can be laid down defining ab- solutely and once for all what words are defamatory and what not. Words which would seriously injure A.'s reputation might do B.'s no harm. Each case must be decided on its own facts. Defamation was formerly an ecclesiastical offence, cognizable only in the spiritual court ; and then defamatory words would be such as the ecclesiastical court would punish. But all such suits were abolished by the 18 & 19 Vict. c. 41. So now it is convenient to use the word " Defamation " as a general term embracing both " Slander" and " Libel." See 6 & 7 Vict. c. 96, s. 6. If in any given case the words employed by the defendant have appreciably injured the plaintiff's reputation, then the plain- tiff has suffered an injury which is actionable without proof of any damage. Every man has an absolute right to have his person, his property, and his reputation, preserved inviolate. " His reputation is his property, and, if possible, more valuable than other property." (Per. Malins, V. C, in Dixon v. Rolden, L. R. 7. Eq. 492 ; 17 W.'R. 482 ; 20 L. T. 357.) "Indeed, if we reflect on the degree of suffer- ing occasioned by loss of character, and compare it with that occa- sioned by loss of property, the amount of the [*18] former injury far exceeds that of the latter." (Per Best, C.J., in Be Crespigny v. Wettesley, 5 Bing. at p. 406.) And just as any invasion of a man's property is actionable without proof of any pecuniary loss, so is any disparagement of his reputation. " It was the rule of Holt, C.J.,"to make words actionable whenever they sound to the disreputa- tion of the person of whom they were spoken, and this was also Hale's and Twisden's rule, and I think it a very good rule." (Per Fortescue, J., in Button v. Ileyward, 8 Mod. 24, referring perhaps to Baker v. Pierce, 6 Mod. 24.) Whenever the words clearly " sound to the disreputation " of the plaintiff, there is no need of further pi-oof, they are defamatory on the face of them, and actionable per se. The injury to the reputa- tion is the gist of the action, and wherever that is clear, there is no need to inquire whether there is any injury to the pocket as well. But where it is by no means clear from the words themselves (86) GIST OF THE AtiTIOST. 15 that they must have injured the plaintiff's reputation, there the Court requires proof of some special damage to show that as a mat- ter of fact the words have in this case impaired the plaintiff's good name. Words which are merely uncivil, words of idle abuse, will not touch his credit, and, therefore, are clearly no ground for an action, unless it can be shown that in fact some appreciable damage to the 'plaintiff has followed from their use. The injury for which compensation is sought must be capable of being assessed by a jury. De minimis non curat lex. Mr. Townshend, the author of a learned American treatise on Slander and Libel, appears to me to fall into an error on this point. He devotes a whole chapter to maintaining " that pecuniary loss to the plaintiff is the gist of the action for slander or libel. If the lan- guage published has not occasioned the plaintiff pecuniary loss (actual or implied), then no action can be maintained In theory, the action for slander or libel is always for the pecuniary injury, and not for the in jury to the reputation " (c. iv.). He might as well contend that the gist of an action of assault and battery was the doctor's bill the plaintiff had to pay. Surely the injury to the [*19] plaintiff's reputation is the gist of the action, and special damage is but evidence of that injury, and is necessary only where without some such evidence it would not be clear that the plaintiff's reputation had in fact been impaired. This is the law in America as well as in England ; see the judgments of the Court of Appeals in Terwilliger v. Wands, 3 Smith (17 N. Y. R.), 59, 63, and Wilson v. Goit,ibid. 443. PART I. LIBEL. In cases of libel, any words will be deemed defamatory which expose the plaintiff to hatred, contempt, ridicule, or obloquy, which tend to injure him in his profession or trade, or cause him to be shunned or avoided by his neighbors. " Everything, printed or written, which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been." (Per Parke, B., in O'Brieti v. Clement, 15 M. & W. 435.) The words need not necessarily impute disgraceful conduct to the plaintiff ; it is suffi- cient if they render him contemptible or ridiculous. ( Cropp v. Tilney, 3 Salk. 226 ; Vitters v. Monsley, 2 Wils. 403 ; Watson v. Trash, 6 Ohio, 531.) Any written words are defamatory which impute to the plaintiff that he has been guilty of any crime, fraud, dishonesty, immoral- ity, vice, or dishonorable conduct, or has been accused or suspected of any such misconduct ; or which suggest that the plaintiff is (87) 16 DEFAMATORY WORDS. suffering from aiiy infectious disorder ; or which have a tendency to injure him in his office, profession, calling or trade. And so, too, are all words which hold the plaintiff up to contempt, hatred, scorn, or ridicule, and which, by thus engendering an evil opinion [*20] opinion of him in the minds of right-thinking men, tend to deprive him of friendly intercourse and society. A libel need not necessarily be in writing or printing. Any car- icature or scandalous painting or effigy will constitute a libel. (5 Rep. 125 b ; Anon., 11 Mod. 99 ; Austin v. Culpepper, 2 Show. 313 ; Skin. 123 ; Jeffries v. Buncombe, 11 East, 220 ; Bu JBost v. Beresford, 2 Camp.' 511.) But it must be something permanent in its nature, not fleeting as are spoken words. It appears to be impossible to define a libel with any greater precision or lucidity. I proceed at once therefore to give instances. Illustrations. It is libellous to write and publish of a man that he is — " an infernal villain," Bell v. Stone, 1 B. & P. 331 ; "an impostor," Cooke v. Hughes, R. & M. 112 ; Campbell v. Spottiswoode, 3 B. & S. 709 ; 32 L J. Q. B. 185 ; 9 Jur. N. S. 1069 ; 11 W. R. 509 ; 8 L. T. 201 ; " a great defaulter," Warman v. Bine, 1 Jur. 820 ; " a hypocrite," Thorley v. Lord Kerry, 4 Taunt. 355 ; 3 Camp. 214 n.; " a frozen snake," Hoare v. Siherlock, (No. 1, 1848), 12 Q. B. 624 ; 17 L. J. Q. B. 306 ; 12 Jur. 695 ; " a rogue and a rascal," Per Gould, J., in Villers v. Monsley, 2 Wils, 403 ; " a dishonest man," Per cur. in Austin v. Culpepper, Skin. 124 ; 2 Show. 314 ; "a mere man of straw," Eaton v. Johns, 1 Dowl. N. S. 602 ; " an itchy old toad," Villers v. Monsley, 2 Wils. 403 ; " a desperate adventurer," association with whom " would inevitably cover" a gentleman " with ridicule and disrepute," Wakley v. Bealey, 7 C. B. 591 ; 18 L. J. C. P. 241 ; that "he grossly insulted two ladies," Clement v. Chivis, 9 B. &. C. 172 ; 4 M. &. R. 127 ; that " he is unfit to be trusted with money," Cheese v. Scales, 10 M. & W. 488 ; 12 L. J. Ex. 13 ; 6 Jur. 958 ; that " he is insolvent and cannot pay his debts," Metropolitan Omnibus Co. v. Hawkins, 4H. &. N. 87 ; 28 L J. Ex. 201 ; 5 Jur. N. S. 226 : 7 W. R, 265 ; 32 L. T. (Old S.) 281 ; ^ _ [*21] that " he was once in difficulties," though it is stated that such difficulties are now at an end, Cox v. Lee, L. R. 4 Ex. 284 ; 38 L. J. Ex. 219 ; that plaintiff "will not sue in a particular county, because he is known tlicrc " Cooper v. Greeley, 1 Denio (N. Y.) 347 ; that he is "the most artful scoundrel that ever existed," " is in every person's debt," that " his ruin cannot be long delayed," that " he is not deserving of the slightest commiseration." Rutherford v. Evans, 6 Bing. 451 ; 8 L. J. (Old S.^ C. P. 86 ; (88) LIBEL. 17 that he is " at the head of a gang of swindlers," that he is "a common informer, and has been guilty of deceiving and defrauding divers persons with whom he had dealings," 1' Anson v. Stuart, 1 T. R. 748 ; 2 Smith's L. C. 6th ed. 57 ; R. v. Sounder*, Sir Thos. Raym. 201 ; that the plaintiff sought admission to a club and was black-balled, and bolted the ntxt morning without paying his debts, O'Brien v. Clement, 16 M. & W. 15er se ; for on the argument of the previous rule he had been only too successful in proving that the words were not actionable without proof of special damage. He was driven therefore to contend that, if praise produced special damage, praise was actionable ; an argu- [* 91] ment with which the Coitrt appeared much amused. Little- dale, J., puts him a case (p. 648), "Suppose a man had a relation of a penurious disposition, and a third person knowing that it would injure him in the opinion of that relation, tells the latter a generous act which the first had done, by which he induces the relation not to leave him money, would that be actionable ? " And Sir John Campbell answers, "If the w r ords were spoken falsely with intent to injure, they would be actionable." And surely he is right ; though one sees the strange position the plaintiff would be com- pelled to adopt. He w T ould have to come forward in Court and declare, " I am not generous, I am really very mean." It would be difficult also to prove the intent with which the words were spoken. But if a malicious intent be clear, the damage is not too remote, for the defendant contemplated it ; and the speaking of the words was wrongful because done maliciously, falsely, and with intent to injure the plaintiff ; so here is et damnum et injuria. Lord Den- man's judgment, be it observed, turned almost entirely on the absence of any innuendo ; that of Taunton, J., on the remoteness of the damage ; while Littledale and Patteson, JJ., concurred in a proposition, which, with all submission, I cannot understand, that " to make the speaking of the words wrongful, they must in their nature be defamatory" (p. 651). If in a small country town where political or religious feeling runs very high, I maliciously dis- seminate a report, false to my knowledge, that a certain tradesman is a radical or a dissenter, knowing that the result will be to drive away his customers, and intending and desiring that result, then, if such result follows, surely I am liable for damages in an action on the case, if not in an action of slander. And yet such words are not in their nature defamatory ; for many, I understand, glory in such titles. This decision (or dictum) in Kelly v. JPartinr/ton, was approved and adopted in Sheakan v. Ahearne (1875), Ir. Rep. 9 C. L. 412. But there, too, this was not the real ground of the judgment of the Court ; their decision turned on a variance between the words as pleaded and the evidence at the trial. In Miller v. David, L. R. 9 C. P. 126 ; 43 L. J. C. P. 84 ; 22 W. R. 332 ; 30 L. T. 58, on the other hand, the Court treat the point as still, at least, an open question : — " It is not necessary to consider the question which was suggested on the argument, whether words not in themselves actionable or defamatory, spoken iinder circumstances and to per- sons likely to create damage to the subject of the words, are, when (142) WORDS CAUSING SPECIAL DAMAGE. 71 the damage follows, ground of action. The judgment of Lord Wensleydale in Lynch v. Knight and wife, 9 H. L. C. 600, appears in favour of the affirmative of this question. But it is not neces- sary for us, for the reasons given, to express any [* 92] opinion ii} ion it." Ao-ain, in Western Counties Manure Co. v. Laices Chemical Manure Co., L. R. 9 Exch. 223 ; 43 L. J. Ex. 171 ; Pol- lock, B., cites with approval and acts upon " the general rule laid down as to such actions in Comyns' Digest, where it is said that an action lies when special damage is shown." So, too, in Hiding v. Smith, 1 Ex. Div. 96, Huddleston, B., says, "The declaration when amended would stand thus : that the plaintiff carried on business as a grocer and draper, and was assisted in the conduct of his business by his wife, and that the defendant falsely and maliciously published of the plaintiff's wife in relation to the business that she had committed adultery, whereby the plaintiff was injured in his business and sustained special damage. I think it clear that on a "declaration so framed an action might be maintained." The name of the wife as a party to the action had been previously struck out ; and the words were not defamatory of the husband, for they in no way refer to him. And in the same case (p. 94), Kelly, C. B., says, " Here the statement was that the wife of the plaintiff was guilty of adultery, and it is the natural consequence of such a statement that persons should cease to resort to the shop. Supposing the statement made not to be slander, but something else calculated to injure the shopkeeper in the way of his trade, as, for instance, a statement that one of his shopmen was suffering from an infectious disease, such as scarlet fever, this would operate to prevent people coming to the shop ; and whether it be slander or some other state- ment which has the effect I have mentioned, an action can, in my opinion, be maintained on the ground that it is a statement made to the public which would have the effect of preventing their resorting to the shop and buying goods of the owner." And see Level's case, Cro. Eliz. 289, ante, p. 79 ; Baldwin v. Flower, 3 Mod. 120, post, p. 400. I conclude, therefore, that if a defendant either knows or ought to know that certain special damage will follow from his words, and speaks those words, desiring and intending that such damage shall follow, or recklessly indifferent whether such damage follows or not therefrom, then if the words be false, and if such damage does in fact follow directly from their use, an action on the case will lie against him for such damage, whatever be the nature of the words. (Barley v. Walford, 9 Q^B. 197 ; 15 L. J. Q. B. 369 ; 10 Jur. 917, ante, p. 16 ; Green v. Button, 2 C. M. & R. 707, post, p. 145.) (143) CHAPTER III. CONSTRUCTION AND CERTAINTY. t* 93 ] Construction is the correct interpretation of words, the giving them their true meaning, the method of ascertaining the sense in which they were understood by those who first heard or read them. • What meaning the speaker intended to convey is immaterial in all actions of defamation. (Ilaire v. Wilson, 3 B. & C. 645.) He may have spoken without any intention of injuring the plaintiff's reputation, but if he has in fact done so, he must compensate the plaintiff. He may have meant one thing and said another : if so, he is answerable for so inadequately expressing his meaning. If a man in jest conveys a serious imputation, he jests at his peril. (Per Smith, B., in Donoghue v. Hayes (1831), Hayes (Irish Exch.) at p. 266). ■ Or he may have used ambiguous language which to his mind was harmless, but to which the bystanders attributed a most injurious meaning : if so he is liable for the injudicious phrase he selected. What was passing in his own mind is immaterial, save in so far as his hearers could preceive it at the time. Words cannot be construed according to the secret intent of the speaker. (HanJcinson v. Bilby, 16 M. & W. 445 ; 2 C. & K. 440.) "The slander and the damage consist in the apprehension of the hearers." (Per Cur. in Fleetwood v. Curley (1619), Hobart, 268). The question therefore is always : How did those to [*94] whom the words were originally published understand them ? We must assume that they were persons of ordinary intelligence. We must assume, too, that they gave to ordinary English words their ordinary English meaning, to local or technical phrases their local and technical meaning. That being done, what meaning did the whole passage convey to an unbiased mind ? This is clearly rather a question for the jury than for the judge. And accordingly by the 32 Geo. III. c. 60 (Fox's Libel Act) it is expressly provided that in all criminal proceedings for libel, the jury are to decide the question of libel or no libel, subject to the direction of the judge. In civil proceedings for libel, the practice is, and always was, the same (Baylis v. Lawrence, 11 A. & E. 920 ; 3 Perry & D. 526 ; 4 Jur. 652), save that here if the judge thinks that the words cannot possibly bear a defamatory meaning, he may shorten the proceedings by a nonsuit. " It is only when the judge is satisfied that the publication cannot be a libel, and that, if it is found by the jury to be such, their verdict will be set aside, that he is justified in withdrawing the question from their cognizance." (Per Kelly, C. B.,L. R. 4 Exch. 288 ; and see Fray v. Fray, 17 C. (144) JUDGE AND JURY. 73 B. N. S. 603 ; 34 L. J. C. P. 45 ; 10 Jur. N. S. 1153 ; Ttacy v. McKenna, Ir. R. 4 C. L. 374 ; Hunt v. Goodlake, 43 L. J. C. P. 54 ; 29 L. T. 472 ; //«?•£ and another v. IfW/, 2 C. P. D. 146 ; 46 L. J. C. P. 227 ; 25 W. R. 373.) If, however, the judge considers that words are reasonably sus- ceptible of a defamatory meaning as well as an innocent one, it will then be a question for the jury which meaning the words would convey to ordinary Englishmen who heard or read them without any previous knowledge of the circumstances to which they relate. (Fisher v. Clement, 10 B. & C. 472 ; 5 Man. & Rv. 730 ; Hankin&on v. BUby, 16 M. & W. 442 ; 2 C. & K. 440.) The judge is in no way bound to state to the jury [his own opinion on the point ; it would, in fact, be wrong for him to lay down as a matter of law, that the publication complained of was, [*95] or was not, a libel. (Baylis v. Lawrence, 11 A. & E. 920.) The proper course is for the judge to define what is a libel in point of law, and to leave it to the jury to say whether the publication in question falls within that definition. (Parmieter v. Coupland and another, 6 M. & W. 105 ; 9 L. J. Ex. 202 ; 4 Jur. 701.) And this is a question pre- eminently for the jury ; whichever way they find, the Court will not disturb the verdict, if the question was properly left to them. So, too, in cases of slander, the judge usually decides whether the words are, or are not, actionable per se, and whether the special damage assigned is, or is not, too remote. If the defendant's words cannot reasonably bear the meaning ascribed to them by the innu- endo, and the judge is clearly of opinion that the words without that meaning are not actionable, he will stop the case. So, too, if the words even with the alleged meaning are not actionable (though pleaders seldom err on that side). But in all other cases, where there is any reasonable doubt as to the true construction of the words, the judge leaves the question to the jury. All circumstances which were apparent to the bystanders at the time the words were uttered should be put in evidence, so as to place the jury as much as possible in the position of such bystanders ; and then it is for the jury to say what meaning such words would fairly have conveyed to their minds. And their finding is final and conclusive on the point ; the Court will not disturb the verdict, unless it be plainly perverse. Formerly, however, the practice was very different. After a verdict for the plaintiff, the defendant constantly moved in arrest of judgment, on the ground that a defamatory meaning was not shown on the record with sufficient precision, or, as it soon came to be, on the ground that it was just possible, in spite of the record, to give the words an innocent construction. For it was said to be a maxim that words were to betaken in mitiori sensu whenever there were two senses in which they could be taken. And in these early times the Courts thought it their duty to discourage actions of [*96] slander. They would, therefore, give an innocent meaning to the words complained of, if by any amount of legal ingenuity such a meaning could be put upon them ; and would altogether disregard (145) 74 CONSTRUCTION AND CERTAINTY. the plain and obvious signification which must have been conveyed to bystanders ignorant of legal technicalities. Thus where a married woman falsely said, " You have stolen my goods," and the jury found a verdict for the plaintiff, the Court entered judgment for the defendant, on the ground that a married woman could have 'no goods of her own, and that therefore the words conveyed no charge of felony. [Anon., Pasch. 11 Jac. I. ; 1 Roll. Abr. 746; now over- ruled by Stamp and wife v. White caul wife, Cro. Jac. 600.) Again, where the words complained of were, " He hath delivered false evidence and untruths in his answer to a bill in Chancery," it was held that no action lay ; for though every answer to a bill in Chan- cery was an oath, and was a judicial proceeding, still in most Chancery pleadings " some things are not material to what is in dispute between the parties," and " it is no perjury, although such things are not truly answered ! " {Mitchell v. Brown, 3 Inst. 167 ; 1 Roll. Abr. 70.) For further instances of such refinements, see Peake v. Pollard, Cro. Eliz. 214; Cox v. Humphrey, id. 889 ; and Holland x. Stoner, Cro. Jac. 315. But in the days of Charles II., the Court of Common Pleas decided in a case of scandalum magnatum [Lord Toumshend v. Dr. Hughes (1676), 2 Mod. 159) that " words should not be construed either in a rigid ,or mild sense, but according to the general and natural mean- ing, and agreeable to the common understanding of all men." And this decision soon became law. In Naben v. Miecock (1683), Skin. 183, Levinz, J., said he was " for talcing words in their natural, genuine and usual sense and common understanding, and not accord- ing to the witty construction of lawyers, but according to the apprehension of the bystanders." (And see Somers v. House, Holt, 39; Skin. 364; and Burgess v. Bracher, 8 Mod. 238.) In 1722, Fortescue, J., declared in Button v. Hayward et ux. (8 Mod. 24), "The maxim for expounding words in mitiori sensu has for a great while been exploded, near fifty or sixty years." In Peake v. Oldham (Cowp. 277, 278) Lord Mansfield commented severely on the constant practice of moving in arrest of judgment after verdict found: "What? After verdict, shall the Court be guessing and inventing a mode in which it might be barely possible for these words to have been spoken by the defendant, without meaning to charge the plaintiff with being guilty of murder? Certainly not. Where it is clear that words are defectively laid, a verdict will not cure them. But [*97] where, from their general import, they appear to have been spoken with a view to defame a party, the Court ought not to lie industrious in putting a construction upon them different from what they bear in the common acceptation and meaning of them." And his Lordship quoted a dictum of Parker, C. J., in Ward v. Reynolds, Pasch, 12 Anne, B. R. to the same effect. So in Harri- son v. Thornborough, 10 Mod. 197, the Court says: "The rule that has now prevailed is that words are to be taken in that sense that is most natural and obvious, and in which those to whom they are spjoken will be sure to understand them." (See also the remarks of De Grey, C. J., in B. v. Home, 2 Cowp. 682-689 ; of Buller, J., (146) NATURAL CONSTRUCTION. 75 in R. v. lYatson and others, 2 T. R. 206 ; and the judgments in Woolnoth v. Meadows, 5 East, 403 ; 2 Smith, 28.) And such is now the law. The Courts no longer strain to find an innocent meaning for words prima facie defamatory, neither will they put a forced construction on words which may fairly be deemed harmless. " Formerly," says Lord Ellenborough in 2 Camp. 403, " it was the praetice to say that words were to be taken in the more lenient sense ; but that doctrine is now exploded : they are not to be taken in the more lenient or more severe sense, but in the sense which fairly belongs to them." And, again, in Roberts v. Camden, 9 East, 95, the same learned judge says : " The rule which once prevailed, that words are to be understood in mitiori sensu, has been long ago superseded ; and words are now to be construed by Courts, as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them." Now, therefore, the only question for the judge or the Court is whether the words are capable of the defamatory meaning attributed to them ; if they are, then it is for the jury to decide what is in fact the true construction. So long as the defendant's words are not absolutely unintelligible, a jury will judge of the meaning as well as other readers or hearers. All perplexity and obscurity will disappear under the narrow exam- ination which the words will receive in a Court of law. It matters not whether the defamatory words be in English or in any other language that is understood in England, whether they be spelt correctly or incorrectly, whether the phrase be grammatical or not, whether cant or slang terms be employed, or the most refined and elegant diction. (R. v. Edgar, 2 Sess. Cas. 29 ; 5 Bac. Abr. 199.) The insinuation may be indirect, and the allusion obscure ; it may be put as a question or as an " on dit ; " the language may be ironical, figurative, or allegorical ; still, if there be a meaning in the words at [*98] all, the Court will find it out, even though it be disguised in a riddle or in hieroglyphics. In all cases of ambiguity it is purely a question for the jury to decide what meaning the words would convey to persons of ordinary intelligence. ( Grant v. Yates (C. A.), 2 Times L. R. 368.) And before answering that question the jury should well weigh all the circumstances of the case, the occasion of speaking, the relationship between the parties, &c. Especially they should con- sider the words as a whole, not dwelling on isolated passages, but giving its proper weight to every part. (Per Tindal, C. J., in SMpley v. Todhunter, 8 C. & P. 680.) The sting of a libel may sometimes be contained in a word or sentence placed as a heading to it. The defendant will often be held liable merely in consequence of such prefix, where, without it, he would have had a perfect answer to the action. So, too, a word added at the end may altogether vary the sense of the preceding passage. The defendant is, therefore, entitled to have the whole of the alleged libel read as part of plaintiff's case. (Cooke v. Hughes, R. & M. 112.) And for the purpose of showing that what he wrote is no libel, and will not bear the construction which plaintiff seeks to put upon it, the (147) 76 CONSTRUCTION AND CERTAINTY. defendant may give in evidence any other passages in the same publication which plainly refer to the same matter, or which qualify or explain the passage sued on. (JZ. v. Lambert and Perry, 2 Camp. 400; .31 Howell St. Tr. 340 ; Darby v. Ouseley, 25 L. J. Ex. 229 ; 1 II. & N. 1 ; 2 Jur. N. S. 497 ; Bolton v. O'Brien, 16 L. R. Ir. 97.) So, too, with a slander ; very often the words immediately preced- ing or following may much modify those relied on by the plaintiff. (Bittridge's Case, 4 Rep. 19 ; Thompson v. Bernard, 1 Camp, 48.) When the language sued on is ambiguous, and some extrinsic evidence is necessary to construe it, evidence may even be given of other libels or slanders published by the defendant of the plaintiff, which explain or qualify that sued on. But such evidence is not admissible where the meaning of the words is clear and undisputed. {Stuart v. Lovell, 2 Stark. 93; Pearce v. Ornsby, 1 M. & Rob. 455 ; Symmons v. Blake, ib. 477 ; 2 C. M. & R. 416 ; 4 Dowl. 263 ; 1 Gale, 182 ; Traill v. Deriham, Times for May 4th, 1880.) And when such evidence is admitted, the jury should always be cautioned not to give any damages in respect of it. (Per Tindal, C. J., in Pearson v. Lemaitre, 5 M. & Gr. 720 ; 12 L. J. Q. B. 253 ; 7 Jur. 748 ; 6 Scott, N. R. 607.) Illustrations. The Observer gave a correct account of some proceedings in the Insolvent Debtors' Court, but it was headed " Shameful Conduct of an Attorney." The [*99] rest of the report was held privileged ; but the plaintiff recovered damages for the heading. Clement v. Lewis, 3 Br. & B. 297 : 7 Moore, 200 ; 3 B. & Aid. 702. And see Mountney v. Watton, 2 B. & Ad. 673. Bishop v. Latimer, 4 L. T. 775. Boydell v. Jones, 4M.&W. 446 ; 7 Dowl. 210 ; 1 H. & H. 408. Harvey v. French, 1 Cr. & M. 11 ; 2 M. & Scott, 591 ; 2 Tyr. 585. Lewis v. Levy, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 970. Street v. Licensed Victualler's Society, 22 "W. R. 553. Stanley v. Webb, 4 Sandf. (N. Y.) 21. An action was brought for an alleged libel, published in the True Sun news- paper : — " Riot at Preston. — From the Liverpool Courier. — It appears that Hunt pointed out Counsellor Seager to the mob, and said, ' There is one of the black sheep.' The mob fell upon him and murdered him. In the affray Hunt had his nose cut off. The coroner's inquest have brought in a verdict of wilful murder against Hunt, who is committed to gaol. — Fudge." The plaintiff con- tended that the word " Fudge " was merely introduced with reference to the future, in order that the defendants might afterwards, if the paragraph were complained of, be able to refer to it, as showing that they intended to discredit the statement. Lord Lyndhurst, C. B., told the jury that the question was, with what motive the publication was made. It was not. disputed that if the paragraph, which was copied from another paper, stood without the word " Fudge," it would be a libel. If they were of opinion that the object of the paragraph was to vindicate the plaintiff's character from an unfounded charge, the action could not be maintained ; but if the word " Fudge" was only added for the purpose of making an argument at a future day, then it would not take away the effect of the libel. Verdict for the plaintiff. Damages, one farthing. Hunt v. Algar and others, 6 C. & P. 245. Of the Innuendo. In arriving at the meaning of the defendant's words, the Court (148) INNUENDO. 77 and jury are often materially assisted by an averment in the plain- tiff's statement of claim, called an innuendo. This is a statement by the plaintiff of the construction which he puts upon the words himself, and which he will endeavour to induce the jury to adopt at the trial. Where a defamatory meaning is apparent on the face of the libel itself, no innuendo is necessary ; though even there the pleader occasionally inserts one to heighten the effect of the words. But where the words prima facie are not actionable, an innuendo is essential to the action. It is necessary to bring out the latent inju- rious meaning of the defendant's [* 100 J words ; and such innu- endo must distinctly aver that the words bear a specific actionable meaning. ( Cox v. Cooper, 12 W. R. 75 ; 9 L. T. 329.) It is the office of an innuendo to define the defamatory meaning which the plaintiff sets on the words ; to show how they come to have that defamatory meaning ; and also to show how they relate to the plaintiff, whenever that is not clear on the face of them. But an innuendo may not introduce new matter, or enlarge the natural meaning of words. It must not put upon the defendant's words a construction which they will not bear. It cannot alter or extend the sense of the words, or make that certain which is in fact uncertain. [James v. JRutlech, 4 Rep. 17.) If the words are incap- able of the meaning ascribed to them by the innuendo, and are prima facie not actionable, the judge at the trial will stop the case. If, however, the words are cap>able of the meaning ascribed to them, however improbable it may appear that such was the meaning con- veyed, it must be left to the jury to say whether or no the}?- were in fact so understood. [Hunt v. Goodlake, 43 L. J. C. P. 54 ; 29 L. T. 472 ; Broome v. Gosden, 1 C. B. 728.) This is so in Amer- ica. {Patch v. Tribune Association, 38 Hun. (45 N. Y. Supr. Ct.) 368.) An innuendo now requires no prefatory averment to support it. (Common Law Procedure Act, 1852, s. 61.) The libel or slander sued on must of course be set out verbatim in the statement of claim ; the innuendo usually follows it immediately. Such a pleading is to be considered as two counts under the old system, one with an innuendo and one without. And if the plaintiff can show a good cause of action, either with or without the alleged meaning, he is entitled to recover. (Per Blackburn, J., in Watkin v. Hall, L. R. 3 Q. B. 402 ; 37 L. J. Q. B. 125 ; 16 W. R. 857 ; 18 L. T. 561.) The defendant is in no way embarrassed by the presence of the innuendo in the statement of claim : in fact it is to him an advantage. He can either deny that he ever spoke the words, or he can admit that he spoke them, but deny that they conveyed that meaning. He can also assert that the words he spoke were true, either with or with- out the alleged meaning. It will then be for the jury to say whether [*10l]the plaintiff's innuendo is borne out. If not, the plaintiff may fall back upon the words themselves, and urge that, taken in their natural and obvious signification, they are actionable per se without the alleged meaning, and that therefore his unproved innuendo may be rejected as surplusage. {Harvey v. French, 1 Cr. & M. 11; (149) 78 CONSTRUCTION AND CERTAINTY. 2 M. & Scott, 591 ; 2 Tyrw. 585.) But he cannot in the middle of the case start a fresh innuendo not on the record ; he must abide by the construction he put on the words in his statement of claim, or else rely on their natural and obvious import. (Simmons v. Mitch- ell, 6 App. Cas. 126 ; 50 L. J. P. C. 11 ; 29 W. R. 401 ; 43 L. T. 710 ; 45 J. P. 237.) He may not during the trial set up a third construction of the words different both from their prima facie meaning and from that pointed by the innuendo ; if he win a ver- dict in this way, the Court Avill grant a new trial on the ground of surprise. (Hunter v. Sharpe, 4 F. & F. 983 ; 15 L. T. 421 ; liuel v. Tatnell, 29 W. R. 172 ; 43 L. T. 507.) If the jury negative his innuendo, and the words are not actionable in their natural and primary sense, judgment must pass for the defendant. (Brembridge v. Latimer, 12 W. R. 878 ; 10 L. T. 816 ; Maguire v. Knox, Ir. R. 5 C. L. 408.) Illustrations. " He hath forsworn himself." These words are not in themselves a sufficient imputation of perjury, because he is not said to have sworn falsely while giving evidence in Court. Hence an innuendo " before the justice of assize " is clearly bad ; for it is not an explanation of defendant's words, but an addition to them. Anon., 1 Roll. Abr. 82. Holt v. Sholefield, 6 T. R. 691. A libel 'alleged that a gentleman was on a certain night hocussed and robbed of £40, in the plaintiff's public-house. An innuendo " meaning thereby that the said public-house was the resort of, and frequented by, felons, thieves, and depraved and bad characters," after verdict for the defendant, was held too wide. Broome v. Cosden, 1 C. B. 728. Clarke's Case de Dorchester (1619), 2 Rolle's Rep. 136. The words " I was speaking to a lady about Mrs. Y.'s case " cannot support an innuendo, meaning thefeby that the'plaintiff (Mrs. Y.) had been guilty of adultery. York v. Johnson, 116 Mass. 482. Libel complained of: — " He has become so inflated with self-importance by the few hundreds made in my service — God only knows whether honestly or otherwise — that," &c. Innuendo, " meaning thereby to insinuate that the plaintiff had conducted himself in a dishonest manner in the service of the •defendant." The Court refused to disturb a verdict for the plaintiff. Clegg v. Laffer. 3 Moore & Sc. 727 ; 10 Bing. 250. The defendant said, " Master Barham did burn my barn with his own hands, and none but he." At that date it was not felony to burn a barn, _ unless it [*102] were either full of corn or parcel of a mansion-house. An innuendo, " a barn full of corn," was held tco wide. " That is not," says De Grey, C. J., commenting on this case in Cowp. 684, " an explanation of what was said before, but an addition to it. But if in the introduction it had been averred, that the defendant had a barn full of corn, and that in a discourse about the barn, the defendant had spoken the words charged in the libel of the plaintiff ; an innuendo of its being the barn full of corn would have been good. For by coupling the innuendo in the libel with the introductory averment, ' his barn full of corn,' it would have made it compleat." Barham's Case, 4 Rep. 20 ; Yelv. 21. See Capital and Counties Bank v. Hemty & Sons (C. A.), 5 C. P. D. 514; 49 L. J. C. P. 830 ; 28 W. R. 851 ; 43 L. T. 651 ; H. L. 7 App. Cas. 741 ; 52 L. J. Q. B. 232 ; 31 W. R. 157 ; 47 L. T. 662 ; 47 J. P. 214. An information was filed against a Nonconformist minister for a libel upon "the bishops" contained in a book, called "A Paraphrase upon the New (150) INNUENDO. 79 Testament." An innuendo, " the bishops of England," was held to be allow- able, if from the nature of the libel this was clearly what was meant. B. v. Baxter (1685), 3 Mod. 69. The libel accused a gentleman of saying, " lie could see no probability of the Avar's ending with France, until the little gentleman on the other side of the water was restored to his rights." Innuendo, " The Prince of Wales," allowed to be good ; in fact the Court thought the meaning was clear without any innuendo. Anon. (1707), 11 Mod. 99. R. v. Matthews (1719), 15 How. St. Tr. 1323. Libel : — '' The mismanagements of the navy have been a greater tax upon the merchants than the duties raised by government." An innuendo, "the royal navy of this kingdom," held not too wide. R. v. Tutehin (1704), 14 How. St. Tr. 1095 ; 5 St. Tr. 527 ; 2 Ld. Raym. 1061 ; Salk. 50 ; 6 Mod. 268. R. v. Home (1777), Cowp. 672 ; 11 St. Tr. 264; 20 How. St. Tr, 651. The words " We have no doubt sufficient information will be obtained for a strong case to lay before the Home Secretary to enable that functionary to cause it to be intimated to the suspected party that his presence here can be dispensed with, as far as it may be attended with danger to himself," were held in the Exchequer Chamber not to support an innuendo, meaning thereby that the prosecutor was suspected of having had committed some crime which would bring his life into danger from the laws of England. Gregory v. The Queen (No. 2), 5 Cox, C. C. 252. The words complained of in their natural sense conveyed only suspicion, and were therefore not actionable ; there were innuendoes, but none of them stated that the words imputed felony, though there was a prefatory averment stating that defendant's motive was to cause it to be believed that plaintiff had been guilty of felony. Held, that this prefatory averment could not be substituted for the innuendoes whereby plaintiff undertook to give the meaning of the words spoken. Simmons v. Mitchell, 6 App. Cas. 156 ; 50 L. J. P. C. 11 ; 29 W. R, 401 ; 43 L. T. 710 ; 45 J. P. 237. The alleged libel was as follows : — "Notice, — any person giving information [* 103] were any property may be found belonging to H. Gr. (meaning the plaintiff), a prisoner in the King's Bench prison, but residing within the rules thereof, shall receive five per cent, upon the goods recovered, for their trouble, by applying at Mr. L.," &c. Innuendo, that the plaintiff had been and was guilty of concealing his property with a fraudulent and unlawful intention. Held, on general demurrer, that the innuendo, unsupported by any prefatory averment, was too large ; and that the words, in themselves, were not action- able. Gompertz v. Levy, 9 A. & E. 282 ; 2 Jur. 1013 ; 1 P. &. D. 214 ; 1 W. W. &H.*728. Wheeler v. Haynes, 9 A. & E. 2S6, note ; 1 W. W. C II. 645 ; 1 P. & D. 55. Capel and others v. Jones, 4 C. B. 259 ; 11 Jur. 396. Day v. Robimon, 1 A. & E. 554 ; 4 N. & M. 884. Adams v. Meredew, 2 Y. & J. 417 ; 3 Y. & J. 219. But all these cases are overruled by the C. L. P. Act. 1852, s. 61. as inter- preted in Hemmings v. Gasson, E. B. & E. 346 ; 27 L. J. Q. B. 523 ; 4 Jur. N. S. 834. Words complained of : — " He is a regular prover under bankruptcies." An innuendo, " the defendant meaning thereby that the plaintiff had proved and was in the habit of proving fictitious debts against the estates of brankrupts, with the knowledge that such debts were fictitious," is now all that is necessary. C. L. P. Act, 1852, Sched, B., form 33. Not so formerly. Angle v. Alexander, 7 Bing. 119 ;1 Cr. & J. 143 ; 1 Tyrw. 9 ; 4M. & P. 870, ante, p. 80. (151) 80 CONSTRUCTION AND CERTAINTY. Words may be : — (1) obviously defamatory ; (2) ambiguous : that is, words which, though prima facie defamatory, are still on the face of them susceptible of an innocent meaning ; (3) neutral ; i. e., words which are meaningless till some explan- ation is given; such are slang expressions, words in a foreign language, words used in some special, local, techni- cal, or customary sense ; (4) prima facie innocent, but capable of a defamatory mean- ing ; (5) Obviously innocent ; words which cannot be construed so as to convey any imputation on the plaintiff. To these different classes of words special rules of pleading, evi- dence, and construction apply. [*104] 1. Words obviously defamatory. Here no innuendo is necessary. No parol evidence is admissible at the trial to explain the meaning of the words. The defendant cannot be heard to say that he did not intend to injure the plaintiff's reputation, if he has in fact done so. The question is still of course for the jury ; but the judge will practically direct them that the words are actionable and that they should find for the plaintiff on that issue. Should the jury perversely refuse to follow the judge's direction, a new trial will be granted. [Levi v. Milne, 4 Bing. 195 ; 12 Moore, 418.) But the defendant may plead circumstances which made it clear at the time he spoke or wrote that the words were not used in their ordinary signification. He may thus take the words out of this class into class 2, words primd facie defamatory. It will then be a question for the jury how the bystanders understood the words. But such question only arises where the w T ords are susceptible of the innocent meaning which the defendant seeks to place on them, and where also the circumstances which are alleged to qualify the inju- rious words were known to the bystanders at the time. Illustrations. It is libellous without any innuendo, to write and publish that a newspaper has a separate page devoted to the advertisements of usurers and quaek doctors, and that the editor takes respectable advertisements at a cheaper rate if the advertisers will consent to their appearing in that page. The Court, however, expressed surprise at the absence of some such innuendo as " meaning thereby that the plaintiff's paper was an ill-conducted and low-class journal." Russell and another v. Webster, 23 W. R. 59. Where a libel called the plaintiff a " truckmaster," and the defendant justi- fied ; but no evidence was given at the trial as to the meaning of the word ; the Court held after some hesitation that, though the word was not to be found in any English dictionary, its meaning was sufficiently clear to sustain the action, there being a statute called " The Truck Act." Homer v. Taunton, 5 H. & N. 661; 29 L. J. Ex. 318 ;8W,R. 499;. 2 L. T.512. (152) WORDS OBVIOUSLY DEFAMATORY. 81 To write and publish that a certain woman is a prostitute, and that "she is, I understand, under a patronage or protection of" the plaintiff, was held [* 105] actionable in the Court of Appeals in New York, although there was no innuendo averring that she was under the plaintiff's protection lor immoral purposes. More v. Bennett (1872), 48 X. Y. R. (3 Sickels), 472 ; reversing the judgment of the Supreme Court below, reported '■)'■) How. P. R. 180 : 48 Barbour, N. Y. 2:29. , ii is libellous to write and publish these words: — " Threatening letters. The Middlesex grand jury have returned a true bill against a gentlemen of some property named French. " And no innuendo is necessary to explain the mean- ing of the words ; for they can only import that the grand jury had found a true bill against French for the misdemeanour of sending threatening letters. Harvey v. French, 1 Cr. & M. 11 ; 2 M. & Scott, 591 ; 2 Tyrw. 585 ; Allegorical terms of well-known import are libellous pt r se, without innuen- does to explain their meaning ; e.g., imputing to a person the qualities of the " frozen snake," or calling him " Judas." Eoare v. Silverlock} (No. 1, 1848), 12 Q. B. 624 ; 17 L. J. Q. B. 306 : 12 Jur. 695. Words complained of : — " Thou art a thief : " no innuendo at all is necessary, as larceny is clearly imputed. Blumley v. Base, 1 Roll. Abr. 73. Slowman v. Button, 10 Bing. 402. If the words can be understood as imputing a crime, no innuendo is necessary. And, if it w T ere, an innuendo, "meaning thereby that the plaintiff had been guilty of a criminal offence," is sufficient without specifying what, particular crime is meant. Webb v. Beavan, 11 Q. B. D. 609 ; 52 L. J. Q. B. 544 ; 49 L. T. 201; 47 J. P. 488. Kinnahan v. McCuUagh, Ir. R. 11 C. L. 1. Saunders v. Edwards, i Sid. 95. Francis v. Boose, 3 M. & W. 191 ; 1 H. & H. 36. To say, " He robbed John White," is prima facie clearly actionable. But the defendant may show, if he can, that that is not the sense in which the words were fairly understood by bystanders wdio listened to the whole conversation, though previously unacquainted with the matter to which the w T ords sued on relate. Tomlimon v. Brittlebank, 4 B. & Adol. 630 ; 1 Nev. & Man. 455. Hnnkinson v Bilby, 16 M. & W. 442 ; 2 C. & K. 440. Martin v. Loei, 2 F. & F. 654. " Blackmailing " is clear, and requires no innuendo to support it. Edsall v. Brooks, 2 Robt. 29 ; 3 Robt. 284 (New York). So is " pettifogging shyster " when applied to a lawyer. " Courts have no right to be ignorant of the meaning of current phrases which everybody else understands." Bail?]/ v. Kalamazoo Publishing Co. (1879), 4 Chaney (40 Michigan) 251. £* 106 ^ 2. Words prima facie defamatory. Here, too, no innuendo is necessary, and no parol evidence is admissable at the trial to explain the meaning of the words. The judge will direct the jury that the words are prima facie action- able. , But the defendant may plead circumstances which made it clear at the time that the w T ords were not used by him in their ordinary 6 Lib. & Slan. (153) 82 CONSTRUCTION AND CERTAINTY. signification. He may plead that the words were uttered merely in a joke, and were so understood by all who heard them ; or that the words were part of a longer conversation, the rest of which limits and explains the words sued on ; or any other facts which tend to show that they were uttered with an innocent meaning, and were so understood by the bystanders. And if such a defence be pleaded, parol evidence may be given of the facts alleged. And then it becomes a question for the jury whether the facts as pleaded are substantially proved, and whether they do put on the words a colour different from what they would prima facie bear. It is gen- erally difficult, however, to induce the jury to adopt the defendant's harmless view of his own language. But see Grant v. Yates, 2 Times L. R. 368. But the defendant may not plead or give in evidence any facts which were not known to the bystanders at the time the words were uttered. The defendant's secret intent in uttering the words is immaterial. (Hankinson v. Bilby, 16 M. & W. 445 ; 2 C. & K. 440.) The defendant is allowed thus to give evidence of all "the sur- rounding circumstances," in order to place the jury so far as possi- ble in the position of bystanders, so that they may judge how the words would be understood on the particular occasion. But though evidence of such extrinsic facts is admitted, parol evidence merely to explain away the words used, to show that they did not for once bear their ordinary signification, is inadmissable. A witness cannot be called to say, "I should not have understood defendant to make any [* 107] imputation whatever on the plaintiff." The jury know what ordinary English means, and need no witness to inform them. The leading case on this point is one cited in the Lord CromwelVs Case (1578), 4 Rep. 13, 14. (At least, it 'appears to be a decided case, not a mere illustration.) "If a man brings an action on the case for calling the plaintiff murderer, the defendant will say, that he was talking with the plaintiff concerning unlawful hunting, and the plaintiff confessed that he killed several hares with certain engines ; to which the defendant answered and said, ' Thou art a murderer' (innuendo the killing of the said hares). . . . Resolved by the whole Court, that the justification was good. For in case of slander by words, the sense of the words ought to be taken, and the sense of them appears by the cause and occasion of speaking of them for sensus verborum ex causa dicendi accipiendus est et sermon es semper accipiendi sunt, secundum svbjectam. . . . And it was said, God forbid that a man's words should be by such strict and grammatical construction taken by parcels against the manifest intent of the party upon consideration of all the words, which import the true cause and occasion which manifest the true sense of them ; quia qu

/Coal Gas Co. v. Corporation of Bradford, L. R. 15 Eq. 167 ; 42 L. J. Ch. 293 ; 21 W. R. 286 ; 28 L. T. 11 ; Mogul Steamship Co. v. M'Gregor, Gow i v. Arnott, 2 C. P. D. 24 ; 46 L. J. C. P. 3 ; 25 W. R. 46 ; 35 L. T. 424. There are many other cases in which words produce special dam- age to the plaintiff without in any way affecting his reputation ; and for such words, if spoken without lawful occasion, an action on the case will lie, provided the damage be the necessary or prob- able consequence of the words. (See ante, p. 15.) But such cases are outside the scope of this book. (187) CHAPTER VI. PUBLICATION. t* 151 l Publication is the communication of the defamatory words to some third person or persons. It is essential to the plaintiff's case that the defendant's words should be expressed ; the law permits us to think as badly as we please of our neighbours so long as we keep our uncharitable thoughts to ourselves. Merely com- posing a libel is not actionable unless it be published. And it is no publication when the words are only communicated to the person defamed ; forthat cannot injure his reputation. A man's reputation is the estimate in which others hold him ; not the good opinion which he has of himself. And the communication, whether it be in words, or by signs, gestures, or caricature, must be intelligible to such third person. If the words used be in the vernacular of the place of publication, it will be presumed that such third person understood them, until the contrary be proved. And it will be presumed that he understood them in the sense which such words properly bear in their ordinary signification, unless some reason appear for assigning them a different meaning. The onus lies on the plaintiff to prove publication ; and such publication must of course be prior to the date of the writ. Illustrations. To shout defamatory words on a desert moor where no one can hear you is not a publication ; but "if anyone chances to hear you, it is a publication, although you thought no one was by. [*152] To utter defamatory words in a foreign language is not a publication, if no one present understands their meaning ; but if defamatory words be written in a foreign language, there will be a publication as. soon as ever the writing comes into the hands of anyone who does understand that language, or who gets them explained or tramiated to him. If defamatory words be spoken in English when the only person present besides the plaintiff is a German who does not understand English, this is no publication. Hurtert v. Weines, 27 Iowa, 134. Sending a letter through the post to the plaintiff, properly addressed to him, and fastened in the usual way, is no publication ; and the defendant is not answera ble for anything the plaintiff may choose to do with the letter after it has once safely reached his hands. Barrow v. Lewellin, Hob. 62. In an American case the plaintiff, after so receiving a libellous letter from the defendant, sent for a friend of his and also for the defendant ; he then repeated the contents of the letter in their presence, and asked the defendant if he wrote that letter ; the defendant, in the presence of the plaintiffs friend, admitted that he had written it. Held, no publication by the defendant to the plaintiff's friend. Fonmlle v. Nease, Dudley, S. C. 303. But it is otherwise if a message be sent to the plaintiff by telegraph ; the (188) PUBLICATION. 1 1 7 contents of the telegram are necessarily communicated to all the clerks through whose hands it passes. So with a postcard. Whitfield andothers v. S. E. By. Co., E. B. & E. 115 ; 27 L. J. Q. B. 229 ; 4 Jur. N. S. 688. Williamson v. Freer. L. R. 9 C. P. 393 ; 43 L. J. C. P. 161 ; 22 W. It. 878 ; 30 L. T. 332. Robinson v. Jones, 4 L. R. Ir. 391. So where the defendant knew that the plaintiff's letters were always opened by his clerk in the morning, and yet sent a libellous letter addressed to the plaintiff, which was opened" and read by the plaintiff's clerk lawfully and in the usual course of business, held a publication by the defendant to the plaintiff's clerk. Delacroix v. Therenot, 2 Stark. 63. So where the defendant, before posting the letter to the plaintiff, had it copied. Held, a publication by the defendant to his own clerk who copied it, Keene v. Ruff, 1 Clarke (Iowa), 482. So where the defendant wrote a letter to the plaintiff himself, but read it to a friend before posting it. Snyder v. Andrews, 6 Barbour (New York), 43. McCombs v. Tattle, 5 Blackford (Indiana), 431. The delivery of a newspaper containing a libel to the proper officer of the Commissioners of Stamps and Taxes for revenue purposes was a sufficient publi- cation of the libel ; although the proprietor of the paper was required by law so to deliver it. R. v. Amphlit, 4. B. & C. 35 ; 6 D. & R. 125. So the delivery of a manuscript to be printed is a sufficient publication ; even [*153] though the author repent and suppress all the printed copies. For the compositor must hear it read. Baldwin v. Elphinston, 2 W. Bl. 1037. This may be considered a somewhat harsh decision, as the compositor does not attend to the substance of the manuscript, but sets it up in type mechani- cally ; but it has recently been acted on in America. Trumbull v. Gibbons, 3 City Hall Recorder, 97. And see Watts v. Eraser and another, 7 Ad. & E. 223; 6 L. J. K. B. 226 ; 7 C. & P. 369 ; 1 M. & Rob. 449 ; 2 N. & P. 157 ; 1 Jur. 671 ; W. W. & D. 451. At all events where it is proper that the words should be printed, the publi- cation, if it be one, to the printer and his men will not destroy any privilege which might otherwise exist. Laiclessv. The Anglo-Eqyptian Cotton and Oil Co., L. R. 4 Q. B. 262 ; 10 B. & S. 226 ; 38 L. J. Q. B. 129 ; 17 W. R. 498. Lakev. Kiny, 1 Lev. 241 ; 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58. . But merely to be in possession of a copy of a libel is no crime, unless some publication thereof ensue. R. v. Beere, Carth. 409 ; 12 Mod. 219 ; Holt, 422 ; 2 Salk. 417, 646; 1 Ld. Raym. 414. And see 11 Hargrave's St. Tr. 322, sub Entick v. Carrington. Although husband and wife are generally to be considered one person in "actions of tort as T ,well as of contract (Phillips v. Barnet. 1 Q. B. D. 436), still the plaintiff 's wife is sufficiently a third person to make a communication to her of words defamatory of her husband a publication in law. (Wenman v. Ash, 13 C. B. 836; 22 L.J. C. P. 190 ; 1 C. L. R. 592; 17 Jurist, 579; Jones v. Williams, 1 Times L. R. 572.) And it is submitted that similarly a communi- cation to the husband of a charge against his wife is a sufficient publication. The doubt suggested by Jervis, C. J., in Wenman v. Ash must mean that he considered a communication to the husband of a report prejudicial to his wife w&sprimd facie privileged as being a friendly act ; not that it was no publication. To communicate to (189) 1 I 8 PUBLICATION. a wife a charge or complaint against her husband is not a friendly act, and is not privileged. (Jones y. Williams, supra.) The converse case of the defendant and his wife seems never to have been decided. Is it a publication if a man tells his wife what he thinks of his neighbours ? I presume it is, though the question seems never to have arisen in England; probably because in every such case there has been an almost immediate republication of the same slander (or an exaggerated version of it) by the wife to some third person ; for which the husband would be equally answerable in damages, and which would be easier to prove. In America there is a dictum that the delivery of a libel by the author to his wife " in [*154] confidence " is privileged. {Trumbull v. Gibbons, 3 City Hall Recorder, 97.) And in England it was decided in Jones v. Thomas, 34 W. R. 104 ; 53 L. T. 678; 50 J. P. 149, that the fact that defendant's wife was present on a privileged occasion, and heard what her husband said, would not take away the privilege, so long as her presence, though unnecessary, was not improper. The plaintiff must prove a publication by the defendant in fact. A libel is deemed to be published as soon as the manuscript has passed out of defendant's possession (per Holroyd, J., in Ii. v. Bur- dett, 4 B. & Aid. 143), unless it comes directly and unread into the possession and control of the plaintiff. That some third person had the opportunity of reading it in the interval is not sufficient, if the jury are satisfied that he did not in fact avail himself thereof; even though it is clear that the defendant desh - ed and intended publica- tion to such third person. Illustrations. A. letter is published as soon as posted, and in the place where it is posted, if it is ever opened anywhere by any third person. Ward v." Smith, 6 Bins?, 749 ; 4 M. & P. 595 ; 4 C. & P. 302. Clegg v. Laffer, 3 Moore & Scott, 727 ; 10 Bins;. 250. Warren v. Warren, 4 Tyr. 850 ; 1 C. M. & R. 250. Shipley v. Todhunter, 7 C. & P. 680. The defendant wrote a letter and gave it to B. to deliver to the plaintiff. It was folded, but not sealed. B. did not read it ; but conveyed it direct to the plaintiff. Held, no publication. Clutterbuck v. Chaffers, 1 Stark. 471. Day v. Bream, 2 Moo. & Rob. 54. The defendant threw a sealed letter addressed to the plaintiff, " or C," into M.'s enclosure. M. picked it up and delivered it unopened to the plaintiff him- sel, who alone was libelled. No publication. Fonville v. Nease, Dudley, S. C. 303 (American). By the 38 Geo. III. c 71, s. 17 (now repealed), the proprietor of every news- paper was required to send a copy of every issue to the Stamp Office for Revenue purposes. Held, that proof of the delivery of a newspaper to the officer at the Stamp Office was sufficient evidence of the publication of a libel contained in it to render the proprietor liable to an action ; " as the officer of the Stamp Office would at all events have an opportunity of reading the libel himself." R. v. Amphlit, 4 B. & C. 35 ; 6 D. & R. 125. Ma.yne v. Fletcher, 9 B. & C. 382 ; 4. Man. & Ry. 312. [* 155] Posting up a libellous placard os£, p.^377.) Fair and accurate reports of judi- cial and parliamentary proceedings were already privileged (post, pp. 248—265.) Illustrations. Woor told Daniels that M'Pherson was insolvent ; Daniels went about telling his friends " Woor says M'Pherson is insolvent." Proof that Woor had in fact (205) 134 JUSTIFICATION. said so was held no answer to the action. Daniels was liable in damages unless he could also prove the truth of AYoor's assertion. M'Pherson v. Daniels, 10 B. & C. 268 ; 5 M. & R. 251. A rumour was current on the Stock Exchange that the chairman of the S. E. R. Co. had failed ; and the shares of the; company consequently fell. ; there- upon the defendant said, " You have heard what has caused the fall— I mean, the rumour about the S. Eastern chairman having- failed '!" Held, that a plea that there was in fact such a rumour was no answer to the action. Watkin v. JIaJl, L. R. 3 Q. B. 396 ; 37 L. J. Q. B. 125 ; 10 W. R. 857 ; 18 L. T. 561. Richards v. Richards, 2 Moo. & Rob. 557. At a meeting of the West Hartlepool Improvement Commissioners, one of the commissioners made some defamatory remarks as to the conduct of the former secretary of the Bishop of Durham in procuring from the Bishop a license for the chaplain of the West Hartlepool cemetery. These remarks were reported in the local newspaper ; and the secretary brought an action against the owner of the newspaper for libel. A plea of justification, alleging that such remarks were iu fact made at a public meeting of the commissioners, and thai the alleged [*176] libel was an impartial and accurate report of what took place at such meeting, was held bad on demurrer. Davison v. Duncan, 7 E. & B. 2^9 ; 26 L. J. Q. B. 104 ; 3 Jur. N. S. 613 ; 5 W. R. 253 ; 28 L. T. (Old S.) 265. The defendants, the printers and publisher of the Manchester Courier, pub- lished in their paper a report of the proceedings at a meeting of the Board of Guardians for the Altrincham Poor Law Union, at which ex parte charges were made against the medical officer of the Union Workhouse at Knutsford, of neglecting to attend the pauper patients wdien sent for. Held that the matter was one of public interest ; but that the report was not privileged by the occa- sion, 'although it was admitted to be a bond fide and a correct account of what passed at the meeting; and the plaintiff recovered 40s. damages and costs. Purcett v. Sowlt r, 1 C. P. D. 781 ; affirmed on appeal, 2 C. P.J). 215; 46 L. J. C. P. 308 ; 25 W. R. 362 ; 36 L. T. 416. See also Pierce v. Ellis, 6 Ir. C L. R. 55. So also a newspaper proprietor will be held liable for publishing a report made to the vestry by their medical officer of health, even although the vestry are required by Act of Parliament sooner or later to publish such report them- selves Popham v. Pickburn, 7 H. & N. 891 ; 31 L. J. Ex. 133 ; 8 Jur. N.S. 179 ; 10 W. R. 324 ; 5 L. T. 846. See also Churl ton v. Watton, 6 C. & P. 385. So even in reports of judicial proceedings, which if fair and accurate are privi- leged, if the reporter merely sets out the facts as stated by counsel for one party' and does not give the evidence, or merely says that all that counsel stated was proved a justification that counsel did in fact say so, and that all he stated was in fact proved, is insufficient, the facts stated by counsel must also be jus- tified and proved. Lewis v. Walter, 4 B. & Aid. 605. Saunders v. Mills, 3 M. & P. 508 ; G Bing. 218. See also Flint v. Pike, 4 B. & C. 473 ; 6 D. & R. 520; and the remarks of Lord Compbell in • I,, wis v. Levy, E. B. & E. 544 ; 4 Jur. K S. 970 ; 27 L. J. Q. B. 282. Ris libellous to publish a highly-coloured account of judicial proceedings, mixed with the reporter's own observations and conclusions upon what passed in Court, containing an insinuation that the plaintiff had committed perjury ; and it is 'no justification to pick out such parts .of the libel as contain an account of the trial, and to plead that such parts are true and accurate, leaving the extraneous'matter altogether unjustified. Stiles v. Nokes, 1 East, 493 ; same case sub nomine Uarr v. Jones, 3 Smith, 491. At the same time a defendant may in mitigation of damages justify as to one particular part of' the libel, provided such (20G) PLEA. 135 part contains imputations distinct from the rest. (Per Tindal, C. J., in Clarke v. Taylor, 2 Bing. N". C. 664 ; 3 Scott, 95 ; 2 Hodges, 05.) .So lie may justify as to one [*177] part, and plead privilege t<> the rest, or deny that he ever spoke or published the rest of the words. But in all these cases the part selected must be severable from the rest so as to be intelligi- ble by itself, and must also convey a distinct and separate imputation against the plaint ill'. (J/"' Greg 'or v. Gregory, 11 M. & W. 287 ; 12 L. J. Ex. 204 ; 2 Dowl. N. S. 769 ; Churchill v. Hunt, 2 B. & Aid, 0S5 ; 1 Chit. 480 ; Huberts v. Brown, lo Bing. 519 ; 4 M. & Scott, 407 ; Biddulph v. Chamberlayne, 17 Q. B. 351.) Again where the words are laid with an innuendo in the state- ment of claim, the defendant may justify the words, either with or .without the meaning alleged in such innuendo ; or he may do both. ( Watlcin v. Hall, L. R. 3 Q. B. 396 ; 37 L. J. Q. B. 125 ; 16 \V. R. 857 ; 18 L. T. 561.) That is, he may deny that the plaintiff puts the true construction on his words, and assert that, if taken in their nat- ural and ordinary meaning, his words will be found to be true ; or he may boldly allege that the words are true, even in the worst sig- nification that can be put upon them. But it seems that a defendant may not put a meaning of his own on the words, and say that in that sense they are true ; for if he deny that the meaning assigned to his words in the statement of claim is the correct one, he must be con- tent to leave it to the jury at the trial to determine wdiat meaning the words naturally bear.) Brembridge v. Latimer, 12 W. R. 878 ; 10 L. T. 816.) Nor may he plead : " I did not publish precisely the words stated in the claim ; but something similar, and that something similar is true in substance and in fact." In Ireland the defendant must justify the innuendo as well as the words. (Ilort v. Beade, Ir. R. 7 C. L. 551.) A justification must always be specially pleaded, and with suffi- cient particularity to enable plaintiff to know precisely what is the charge he will have to meet. If the libel makes a vague general charge, as for instance, that the plaintiff is a swindler, it is not suffi- cient to plead that he is [*178] a swindler. The defendant must set forth the specific facts which he means to prove in order to show that the plaintiff is a swindler. {B Anson v. Stuart, 1 T. R. 748.) A plea of justification is always construed strictly against the party pleading it. (Leyman v. Latimer, 3 Ex. D. 15, 352.) It must justify the whole of the words to which it is pleaded, and it must set forth facts issuably. {Jones v. Stevens, 11 Price, 235 ; Newman v. Bail//, 2 Chit. 665 ; Holmes v. Catesby, 1 Taunt. 5 t 3.) " The plea ought to state the charge with the same precision as in an indictment." (Per Alderson, B., in Hickinbotham v. Leach, 10 M. & W. 363 ; 2 Dowl. N. S. 270.) And at the trial it must be proved as strictly as an indictment for the offence it imputes. (Per Tindal, C. J., 'in Chalmers v. ShaoJcell, 6 C. & P. at p. 478. Per Lord Denman, C. J., in Wilnrett v. Harmer, 8 C. & P. at p. 697.] Indeed it is said that if words amount to a charge of felony, and the defendant justifies, and the jury find the plea proved, the plaintiff may at once be put upon his trial before a (207) 136 JUSTIFICATION. petty jury, without the necessity of any bill being found by a grand jury. (Per Lord Kenyon in Cook v. Field, 3 Esp. 134. See the note to Prosser v. Howe, 2 C. & P. 422 ; Johnston v. Browning, Mod. 21V.) Placing a justification on the record is not by itself evidence of malice on the part of the defendant ; but it may aggravate the damages, if the defendant either abandons the plea at the trial or fails to prove it. ( Warwick v. Foulkes, 12 M. & W. 508 ; Wilson v. Bobiuson, 7 Q. B. 68 ; 14 C. J. Q. B. 196 ; 9 Jur. 726 ; Simpson v. Bobinson, 12 Q. B. 511 ; 18 L.J. Q. B. 73 ; 13 Jur. 187 ; Caid- fleld v. Whitworth, 16 W. R. 936 ; 18 L. T. 527.) In a criminal case it is not sufficient to prove the truth of the libel ; the defendant must also prove that it was for the public benefit that the matters charged should be published (6 & 7 Vict. c. 96, s. Sj,p>ost, p. 437). And indeed before 1843 the truth of the libel was no de- fence at all to an indictment ; the maxim prevailed, " the greater the truth the greater the libel." Yet it was always otherwise with a civil action ; there the truth was always a complete defence. For in [*179] a civil action the benefit or detriment to the public is not in issue ; the plaintiff is seeking to put in his own pocket damages for an alleged injury to a character to which he had no right. In the vast majority of cases it is clearly right that culprits should be made to appear in their true colors : peccata enim nocenlium nota esse et oportere et expedire^ — Paulas. And some men may be deterred from committing an act of dishonesty or immorality by the knowledge that, if discovered, it may always be brought up against them, wherever they go, to the, end of their lives. But in other cases where a man has retrieved his character by long years of good behaviour, it is clearh^ morally wrong for one who knows of his early delinquencies to come and blast the reputation which he has fairly earned. It has, therefore, been urged that an action ought to lie, where the plaintiff's antecedents have been maliciously raked up and wantonly published to the world, without any benefit to society. Prisoners constantly complain that it is impossible for them to earn a livelihood by honest labour on coming out of prison, because as soon as they obtain employment anywhere, the police inform their master of' the fact of their previous conviction, and they are at once discharged. And in a recent case, B. y.Seymore, Winchester Spring Assizes, 1880, counsel intimated that it was the rule in the West of England for policemen so to do. But Mr. Justice Hawkins at once " expressed his opinion that it was not the duty of the police to do so. The police, he considered, ought to be the friends of released criminals and help them to return to an honest life. That they should go and inform those who had given a convict employment of the fact of his having been convicted was simply to drive the convict into crime again. He was aware that this was done in many parts of the country, but he for his part thought that it should not be. It was an unnecessary, an officious, and a cruel act ; and the result of it was that once a man was con- victed he was branded for the rest of his life, and a return to (208) WHY A DEFENCE. ' 137 honesty was made most difficult for him." — Times, for April 23rd, 1880. No doubt it is part of the punishment <>i' a criminal that lie can never escape from his misdeeds ; but nevertheless, to unduly pro- claim them is malicious and uncharitable. Yet it is difficult to see how any change can be made in the law in this respect. No law- can be framed which cannot be made to press harshlj on individuals under exceptionable circumstances and in the hands of uncharitable persons. And as a rule the strictness with which a defendant is made to brave [*180j his plea of justification, is a sufficient pro- tection to a plaintiff ; for if a man is really malicious in making a statement, he is almost sure to go beyond the truth, and say too much. In Rome the truth of the libel was a defence both to criminal and to civil proceedings. " Eum qui nocentem infamavit non esse bonum sequum ob earn rem condemnari." — Pauli Sent. V. 4. So in Horace, Sat. II. 1, 83 — 5. ' ' bona [carmina] si quis Judice condiderit laudatur Caesare ; si quis Opprobriis diguum laceraverit, integer ipse." (209) CHAPTER VIII. [*181] PRIVILEGED OCCASIONS. ' It is a defence to an action of libel or slander to prove that the cir- cumstances under which the defamatory words were written or spoken were such as to make it right that the defendant should plainly state what he honestly believed to be the plaintiff's character, and speak his mind fully and freely concerning him. In such a case, the occasion is said to he privileged, and though the statement may now be proved or admitted to be false, still its publication on such privileged occasion is excused for the sake of common convenience, and in the interests of society at large. Illustrations. I am called as a witness, and sworn to speak the truth, the whole truth, and nothing but the truth. I may do so without fear of any legal liability, even though J. am thus compelled to defame my neighbour. I am asked for a character of my late servant by one to whom he has applied for a situation. I may state in reply all I know against him without being liable to an action ; provided I do so honestly and truthfully to the best of my ability. A friend recently come to live in the town privately asks my opinion as to such and such a lawyer, doctor, tradesman, workman, &c. I may tell him in answer all I know concerning each of them ; both as to their skill and ability in their business, and also as to their private character, their integrity, or im- morality ; provided I do not maliciously exaggerate, or deliberately mis-state, the facts. Privileged occasions are of two kinds : — (i) Those absolutely privileged, (ii) Those in which the privilege is but qualified. [*182] In the first class of cases it is so much to the public interest that the defendant should speak out his mind fully and fearlessly, that all actions in respect of words spoken thereon are absolutely forbidden, even 'though it be alleged that the words were spoken falsely, knowingly, and with express malice. This is confined to cases where the public service, or the clue administration of justice, requires complete immunity, e. g., words spoken in Parliament ; reports of military officers on military matters to their military superiors ; everything said by a judge on the bench, by a witness in the box, &c, &c. In all these cases the privilege afforded by the occasion is an absolute bar to any action. In less important matters, however, the interests of the public do not demand that the speaker should be freed from all responsibility, but merely require that he should be protected so far as he is speak- ing honestly for the common good ; in these cases the privilege is said not to be absolute but qualified only ; and the plaintiff will (210) DUTY OF JUDGE. 139 recover damagesin spite of the privilege, if lie can prove that the words were not used bond fide but that the defendant availed him- self of the privileged occasion wilfully and knowingly to defame the plaintiff. Illustrations If a witness in the box volunteers a defamatory remark, quite irrelevant to the cause in which he is sworn, with a view of gratifying his own vanity, and of injuring the professional reputation of the plaintiff, no action lies against such witness ; the words are still absolutely privileged ; for they were spoken in the box. Seaman v. Ketherclift, 1 C. P. D. 540 ; 45 L. J..C. P. 798; 24 W. R. 88 1 ; 34 L. T. 878 ; 2 C. P. D. 53 ; 46 L. J. C. P. 128 ; 25 W. R. 159 ; 35 L. T. 784. But if I maliciously give a good servant a bad character in order to prevent her "bettering herself," and so to compel her to return to my own service, the case is thereby taken out of the privilege, and the servant may recover heavy damages. Jackson v. Hobperton, 16 C. B. (N. S.) 829 ; 12 W. R. 913 ; 10 L. T. 529. In Roman law an intention to injure the, plaintiff was essential to the action for injuria, (D. 47. 10. 3. 3 & 4.) Hence they never pre- [* 183] sumed malice ; the plaintiff had to prove that the defend- ant expressly intended to impair his good name. Thus, if an astrol- oger or soothsayer in the bona fide practice of his art, denounces A. as a thief when' he is an honest man, A. has no action : for the astrologer only committed an honest mistake. But it would be otherwise if the soothsayer did not really believe in his art, but pre- tended, after some jugglery, to arrive at A.'sname from motives of private enmity. (D. 47. 10. 15. 13.) That being so, it was unneces- sary for the Romans to have any law as to qualified privilege ; unless there was some evidence of malice* the plaintiff was in every case non-suited. But neither did they allow any absolute privilege ; on express malice proved the plaintiff recovered. Even the fact that the libel was contained in a petition sent to the Emperor was no protection. (D. 47. 10. 15. 29.) If a prefect or other official in the course of his duty charged a man with crime, he was not liable to an action if he did so in the belief that the charge was true, and without any malicious intention of publicly defaming the man ; but if, in a sudden quarrel, he made the charge in the heat of the moment, and without any ground for the accusation, then he would be liable to an action when his term of office had expired, unless the Statute of Limitations would help him. (Rescript to Victorinus, A.D. 290 ; Krueger's Codex, ed. 1877, p. 855.) Two adversaries in litigation were of course allowed great latitude ; a certain amount of mutual defamation being essential to the conduct of the case, and so not malicious : but even here moderation had to be observed. (Pauli Sent. V. iv. 15.) The Roman plan had at least the merit of simplicity. Whether the communication is, or is not, privileged by reason of the occasion, is a question for the judge alone, where there is no dis- pute as to the circumstances under which it was made. (State v. Grif- fith, L. R. 2 P. C. 420 ; 6 Moore, P. C. C. N. S. 18 j 20 L. T. 197.) (211) 140 PRIVILEGED OCCASIONS. If there be any doubt as to these circumstances, the jury must find what the circumstances in fact were, or what the defendant honestly believed them to be, if that be the point to be determined; and then, on their findings, the judge decides whether the occasion was privi- leged or not, If the occasion was not privileged, and the words are defamatory and false, the judge will direct a verdict for the plaintiff. If the [* 184] occasion was absolutely privileged, judgment will at once be given for the defendant. If, however, the judge decides that the occasion was one of qualified privilege only, the plaintiff must then, if lie can, give evidence of actual malice on the part of the defendant. If he gives no such evidence, it is the duty of the judge to nonsuit him, or to direct a verdict for the defendant. If he does give any evidence of malice sufficient to go to the jury, then it is a question for the jury whether or no the defendant was actu- ated by malicious motives in Avriting or speaking the defamatory words. (See c. IX, Malice, post, p. 209.) • PART I. OCCASIONS ABSOLUTELY PRIVILEGED. In certain cases it is " advantageous for the public interest that persons should not in any way be fettered in their statements," but should speak out the whole truth freely and fearlessly. In these cases the privilege is absolute, and no action lies for words spoken on such an occasion ; the plaintiff cannot be heard to say that the defendant did not act under the privilege, that he did not intend honestly to discharge a duty, but maliciously availed himself of the privileged occasion to injure the plaintiff's reputation. There are not many such cases, nor is it desirable that there should be many. The Courts refuse to extend their number. {Ste- vens v. Sampson, 5 Ex. D. 53 ; 49 L. J. [* 185] Q. 13. 120 ; 28 W. R. 87 ; 41 L. T. 782.) They may be grouped under three heads : — (i) Parliamentary proceedings, (ii) Judicial proceedings, (iii) Naval and military affairs, &c. " I take this to be a rule of law not founded, as is the protection in other cases of privileged statements, on the absence of malice in the party sued, but founded on public policy, which requires that a judge, in dealing with the matter before him, a party in preferring or resisting a legal proceeding, and a witness in giving evidence, oral or written, in a court of justice, shall do so with his mind unin- fluenced by the fear of an action for defamation or a prosecution for libel." * (Per Pigott, C. B., in Kennedy v. Billiard, 10 Ir. C. L. Rep. at p. 209, cited with approval by Brett, M. R., in Munster v. Lamb (C. A.), 11 Q. B. D. at pp. 604, 605.) (i.) Parliamentary Proceedings. No member of either House of Parliament is in any way responsi- (212) JUDICIAL PROCEEDINGS. 141 ble in a court of justice for anything said in the House. (BUI of Rights, 1 Will. & Mary, st. 2, c. 2.) And no indictment will lie for an alleged conspiracy by members of cither House to make speeches defamatory of the plaintiff. (Ex parte Wason, L. R. 4 Q. B. 573; 38 L. J. Q. B. 302; 40 L. J. (M. C.) 168; 17 W. R. 881.) But this privilege does not extend outside the walls of the House. Hence at common law, even if the whole House ordered the pub- lication of parliaTnentary reports and papers, no privilege attached. (R. v. Williams (1686), 2 Shower, 471; Comb. 18 (see, however, the comments on this case in Li. v. Wright (1799), 8 T. R. 293); /Stock- dale v. Hansard (1839), 2 Moo. & Rob. 9; 7 C. & P. 731; 9 A. & E. 1—243; 2 P. & D. 1; 3 Jur. 905; 8 Dowl. 148, 522.) But now, by stat. 3 & 4 Vict. c. 9, all reports, papers, [* 186] votes and pro- ceedings ordered to be published by either House of Parliament, are made absolutely privileged, and all proceedings at law, civil or criminal, will be stayed at once on the production of a certificate that they were published by order of either House. (See the Act in Appendix.) The only case under the Act is the second case of Stockdale v. Hansard (1840), 11 A. & E. 253, 297. A petition to Parliament is absolutely privileged, although it con- tain false and defamatory statements. (Lake v. King, 1 Saund. 131; 1 Lev. 240; 1 Mod. 58; Sid. 414.) So is a petition to a com- mittee of either House. (See Kane v. Mulvany, Ir. R. 2 C. L. 402.) But a publication of such a petition to others not members of the House is of course not privileged. Illustrations. If a member of either House of Parliament publishes to the world the speech he delivered in his place in the House, he will be liable to an action as any private individual would be. R. v. Lord Abingdon, 1 Esp. 226. R. v. Creevey, 1 M. & S. 273. Though if a member of the House of Commons merely printed his speech for private circulation among his constituents, it will be conditionally privileged, i. e. if there be no malicious intent to injure the plaintiff. Per Lord Campbell in Davison v. Duncan, 7 E. & B. 233 ; 26 L. J. Q. B. 107. Per Cockburn, C. J., in Wason v. Walter, L. R. 4 Q. B. 95 ; 8 B. & S. 730 ; 38 L. J. Q. B. 42 ; 17 W. It. 169 ; 19 L. T. 416. Evidence given before a Select Committee of the House of Commons is privileged. Goffin v. Donnelly, 6 Q. B. D. 307; 50 L. J. Q. B. 303 ; 29 W. R. 440 ; 44 L. T. 141; 45 J. P. 439. But a letter written to the Privy Council, touching the conduct of one of their officers, is not absolutely privileged ; it is open to the plaintiff to prove express malice if he can. Proctor v. Webster, 16 Q. B. D. 112; 55 L. J. Q. B. 150; 53 L. T. 765. Reports in the newspapers of parliamentary proceedings are conditionally, not absolutely, privileged. See post, pp. 263 — 5. [*187] (ii.) Judicial Proceedings. No action will lie for defamatory statements made or sworn in (213) 142 ABSOLUTE PRIVILEGE. the course of a judicial proceeding before any court of competent jurisdiction. Everything that a judge says on the bench, or a -wit- ness in the box, or counsel in arguing, is absolutely privileged, so long as it is in anyway connected with the inquiry. So are all documents necessary to the conduct of the cause, such as pleadings, affidavits, and instructions to counsel. This immunity rests on obvious grounds of public policy and convenience. Judy as. A judge of a superior Court has an absolute immunity, and no action can be maintained against him, even though it be alleged that he spoke maliciously? knowing his words to be false, and also that his words were irrelevant to the matter in. issue before him, and wholly unwarranted by the evidence. It is essential to the highest interests of public policy to secure the free and fearless discharge of high judicial functions. [JBloyd v. Barker, 1 2 Rep. 24-.) The judge of an inferior court of record enjoys the same immunity in this respect as the judge of a superior Court, so long as he has jurisdiction over the matter before him. For any act done in any proceeding in which he either knows, or ought to know, that he is without jurisdiction, he is liable as an ordinary subject. {Houlden v. Smith, 14 Q. B. 841 ; Colder v. Ilalkct, 3 Moo. P. C. C. 28'.) And so he would be for words spoken after the business of the court is'over. {Paris v. Levy, 9 C. B. N. S. 342 ; 30 L. J. C. P. 22 ; 7 Jur. K S. 289 ; 9 W. R 71 ; 8 L. T. 324.) A justice of the peace enjoys an equal immunity. An action will lie against him for defamatory words spoken [*188j maliciously and without reasonable or probable cause if they do not arise out of any matter properly before him. (See Kirby v. Simpson, 10 Exch. 358 ; Gelen v. Hall, 2 II. & K 379.) But if the conduct of the plaintiff be a matter in any way relevant to the inquiry, and the proceedings are within the jurisdiction of the magistrate, he may express his opinion of such conduct with the utmost freedom, and no action will lie. The dicta of Lord Denman, C. J., in Kendillon v. MaUby, Car. & M. 402 ; 2 Moo. & Rob. 438, implying that an action would lie against a magistrate for words uttered in the course of his duty, on proof both of malice and of the absence of all reasonable and probable cause, are expressly overruled bv the Court of Appeal in Munstcr v. Lamb, 11 Q. B. D. 608 ; 52 L. J. Q. B. 720 ; 32 W. R. 243 ; 49 L. T. 252 ; 47 J. P. 805. Elustrations. No action will lie against a judge of one of the superior Courts for any judi- cial act, though it be alleged to have been done maliciously and corruptly. Fray v. Blackburn, 3 B. & S. 576. See Floyd v. Barker. 12 Rep 24. Groenvelt v. Burwell, 1 Ld. Raym. 454, 468 ; 12 Mod. 388. Dicas v. Lord Brougham, 6 C. & P. 249 ; 1 M. & R. 309. Taaffe v. Dowries, 3 Moo. P. C. C. 36. n. Kemp v. Neville, 10 C. B. N. S. 523 ; 31 L. J. C. P. 158 ; 4L. T. 640. No action lies against a judge for unjustly censuring and denouncing a counsel then engaged in the cause before him, even although it be alleged that it was done from motives of private malice. Miller v. Hope, 2 Shaw, Sc. App. Cas. 125. (214) JUDICIAL PROCEEDINGS. 143 A County Court judge, while sitting in Court and trying an action in which the plaintiff was defendant, said to him : "You area harpy, preying on the vitals of t ho poor." The plaintiff was an accountant and scrivener. Held, that no action lay for words so spoken by the defendant in his capacity as County Court judge, although they were alleged to have been spoken falsely and maliciously, and without any reasonable or probable cause or any founda- tion whatever, and to have been "wholly irrelevant to the case before bim. Scott v. Stansfield, L. R. 3 Ex. 220; 37 L. J. Ex. L55 ; Ki W. R. 911 ; 18 L. T. 572. No action lies against a coroner for anything he says in his address to the jury impanelled before him, however defamatory, false, or malicious it may he ; unless the plaintiff can prove that the statement was wholly irrelevant to the P189] inquisition, and not warranted by the occasion, the coroner's court being '"' a court of record of very high authority." Thomas v. Ohurton, 2 B. & S. 475 ; 31 L. J. Q. B. 139 ; 8 Jur. N. S. 795. See also Yates v. Lansing, 5 Johns. 283; 9 Johns. 395 (American). A chairman of quarter sessions may denounce the grand jury as a "sedi- tious, scandalous, corrupt, and perjured jury." R. v. Skinner, Lofft, 55. Tha judgment of a court-martial, containing defamatory matter, is abso- lutely privileged, though it is not a court of record. ,1, kyll v. Sir John Moore, 2 B. & P. N. R. 341 ; 6 Esp. 63. Home v. Bentinek, 2 B. & B. 130 ; 4 Moore, 563. Oliver v. Bentinek, 3 Taunt. 456. A magistrate commented severely on the conduct of a policeman which came under his judicial notice, and in consequence the policeman was dismissed from the force. Held, that no action lay. Rendition v. Maltby, 2 M. & Rob. 438 ; Car. & Mar. 402. See also Allardice v. Robertson, 1 Dow, N. S. 514; 1 Dow & Clark, 495 ; 6 Shaw & Dun. 242 ; 7 Shaw & Dun. 691 ; 4 Wil. ,ih America v. Strong, 1 App. ('as. 307 ; 34 L. T. 027.) So are articles of the peace exhibited against the plaintiff. (Cutler v. Dixon, 1 Rep. 14.) The only exception is where an affidavit is sworn recklessly and maliciously before a Court that has no jurisdiction in the matter, and no power to entertain the proceeding. (Buckley v. Wood, 4 Rep. 14 ; Cro. Eliz. 230 ; B. v. [*192] Salisbury, 1 Ld. Ravm. 341 ; Lewis v. Levy, E. B. & E. 554 ; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 970.) In all other cases the plaintiff's only remedy is to indict the deponent for perjury, if he dare. (Doyle v. CBoherty, Car. & M. 418 ; Astley v. Ybunge, 2 Burr. 807.) The Court will, however, sometimes order scandalous matter in such an affidavit to be expunged. (Christie v. Christie, L. R. 8 Ch. 490 ; 42 L. J. Ch. 544 ; "21 W. R. 493 ; 28 L. T. 607.) But, even for matter thus expunged, no action can be brought. (Kennedy v. Ililliard, 10 Ir. C. L. R. 195 ; 1 L. T. 578.) In short, " neither party, witness, counsel, jury or judge can be put to answer civilly or criminally for tcords spoken in office.'''' (Per Lord Mansfield in B. v. Skinner, Lofft, 56.) Illustrations. A woman was charged before a court of petty sessions with administering drugs to the inmates of the plaintiff's house in order to facilitate the commis- sion" of a burglary there. The plaintiff was the prosecutor, and the defendant, who was a solicitor, appeared for the defence of the woman. It was admitted that she had been at the plaintiff's house ou the evening before the burglary ; and there was some evidence, though very slight, that a narcotic drug had been administered to the inmates of the plaintiff's house on that evening. During the proceedings before the magistrates the defendant, acting as advo- cate for *hc woman, suggested that the plaintiff might be keeping drugs at his house for immoral or criminal purposes. There was no evidence called or tendered that the plaintiff kept any drugs in his house at all. Held, that no action would lie against the defendant for these words. Mumter v. Lamb (C. A.), 11 Q. B. D. 588 ; 52 L. J. Q. B. 726 ; 32 W. R. 243 ; 49 L. T. 252 ; 47 J. P. 805. Defendant, an expert in handwriting, gave evidence in the Probate Court in the trial of Barnes v. May, that, in his opinion, the signature to the will in question was a forgery. The jury found in favour of the will, and the presiding judge made some very disparaging remarks on defendant's evidence. Soon afterwards defendant was called as a witness in favour of the genuineness of another document, on a charge of forgery before a magistrate. In cross- examination he was asked whether he had given evidence in the suit of Davies 10 lib. & slan. (217) 146 ABSOLUTE PRIVILEGE. v. May, and whether he had read the judge's remarks on his evidence. He answered, " Yes." Counsel asked no more questions, and defendant insisted on adding, though told by the magistrate not to make any further statement as to Darken v. Map: " I believe that will to be a rank forgery, and shall believe so to the day of my death." An action of slander for these words having been brought by one of the attesting witnesses to the will : held, that the words were [*193] spoken by defendant as a witness, and had reference to the inquiry before the magistrate, as they intended to justify the defendant, whose credit as a witness had been impugned ; and the defendant was therefore absolutely privileged. Seaman v. Netherclift, 1 C. P. D. 540 ; 45 L. J. C. P. 798 ; 24 W. R. 884 ; 34 L. T. 878 ; (C. A.) 2 C. P. D. 53 ; 46 L. J. C. P. 128 ; 25 W. R. 159 ; 35 L. T. 784. A servant summoned his master before a court of conscience for a week's wages. The master said : " He has been transported before, and ought to be transported again, lie has been robbing me of nine quartern loaves a week. " Lord Ellenborough held the remark absolutely privileged, if the master spoke them in opening his defence to the Court ; but otherwise if he spoke them while waiting about the room and not for the purpose of his defence. Trotman v. Dunn, 4 Camp. 221. [N. B.— The latter part of the headnote to this case is misleading.] Plaintiff made an affidavit in an action he had brought against defendant in the King's Bench. Defendant (apparently conducting his own case) said in court, in answer to this affidavit, " It is a false affidavit, and forty witnesses will swear to the contrary." Held, that no action lay for these words. Boulton v. Chapman (1640), Sir W. Jones, 431 ; March, 20, pi. 45. A charge of felony made by the defendant wdien applying in due course to a justice of the peace for a warrant to apprehend the plaintiff on that charge is absolutely privileged. Ram v. Lamley, Hutt. 113. See Johnson v. Evans, 3 Esp. 32. Weston v. Dobniet, Cro. Jac. 432. Dancaster v. Hewson, 2 Man. & R. 176. Defamatory communications made by witnesses or officials to a court-martial, or to a court of inquiry instituted under articles of war, are absolutely privi- leged. Keighley v. Bell, 4 F. & F. 763. Dawkins v. Lord Hokeby, L. R. 8 Q. B. 255 ; 42 L. J. Q. B. 633 ; 21 W R 544 ; 4 F. ct F. 806 ; 28 L. T. 134 ; L. R. 7 H. L. 744 ; 45 L. J. Q. B. 8 ; 23 W. R. 931 ; 33 L. T. 196. No action lay for defamatory expressions contained in a bill in Chancery. Hare v. Mellers, 3 Leon. 138 ; as explained by Pollock, B., 16 Q. B. D. at p. 113. No action will lie for defamatory expressions against a third party, contained in an affidavit made and used in the proceedings in a cause, though such state- ments be false, to the knowdedge of the party making them, and introduced out of malice. Henderson v. Broomhead, 28 L. J. Ex. 360 ; 4 H. & N. 569 ; 5 Jur. N. S. 1175. Astley v. Younge, 2 Burr. 807 : 2 Ld. Kenyon, 536. Revis v. Smith, 18 C. B. 126 ; 25 L. J. C, P. 195 ; 2 Jur. N. S. 614 Hartsoek v. Reddirk, 6 Blackf . (Indiana), 255. If application be bond fide made to a court which the defendant by a pardon- able error honestly believes to have a jurisdiction which it has not, the privi- lege will not be hist merely by reason of this error. Buckley v. Wood, 4 Rep. 14 ; Cro. Eliz. 230. • M'Oregor-Y. Thwaites, 3 B. &. C. 24 ; 4 D. & R. 695. Thorn V. Blanchard, 5 Johns. 508. [* 194] But in other eases an affidavit made voluntarily when no cause is pending, or made coram nonjudice, is not privileged as a judicial proceeding. Maloney v. Bartley, 3 Camp. 210. (218) MILITARY AND NAVAL AFFAIRS. 147 An attorney's bill of of costs is in no sense a judicial proceeding, though de- livered under a judge's order, and can claim no privilege. Brutun v. Dowipes, 1 F. & F. 068. Reports of judicial proceedings are not absolutely privileged, however fair and accurate they may be ; the plaintiff may still prove that the reporter acted maliciously in sending the report to the newspaper. Stevens v. Smtjisan, 5 Ex. 1). 53 ; 49 L. J. Q. B. 120 ; 28 W. R. HI ; 41 L. T. 782. Salmon v. Isaac, 20 L. T. 885. (iii.) Naval and Military affairs, &c. A similar immunity, resting also on obvious grounds of public policy, is accorded to all reports made by a military officer to his military superiors in the course of his duty, and to evidence given by any military man to a court martial or other military court of inquiry ; it being essential to the welfare and safety of the State that military discipline should be maintained without any interfer- ence by civil tribunals. In short, " all acts done in the honest exercise of military authority are privileged." The law is, of course, the same as to the navy. Naval and military matters are for naval and military tribunals to determine, and not the ordinary civil courts. {Hart v. Gumpach, L. R. 4 P. C.439 ; 9 Moore P. C. C. N. S. 241 ; 42 L. J. P. C. 25 ; 21 W. R. 365 ; Dawkins v. Lord Paulet, L. R. 5 Q. B. 94 ; 39 L. J. Q. B. 53 ; 18 W. R. 336 ; 21 L. T. 584 ; Dawkins v. Lord Rokeby, L. R. 7 II. L. 744 ; 45 L. J. Q. B. 8; 23 W. R. 931 ; 33 L. T. 196 ; 4 F. & F. 806.) A similarly absolute privilege extends to all acts of State, and to the official notification thereof in the London Gazette, to all State papers, and to all advice given to the Crown by its ministers. Illustrations. A military court of inquiry may not be strictly a judicial tribunal, but where such court has been assembled under the orders of the General Commanding- [* 195] in-Chief in conformity with the Queen's Regulations for the govern- ment of the army, a witness who gives evidence thereat stands in the same situation as a witness giving evidence before a judicial tribunal, and all state- ments made by him thereat, whether orally or in writing, having reference to the subject of the inquiry, are absolutely privileged. Dawkins v. Lord Rokeby,E. R. 7 H. L. 744 ; 45 L. J. Q. B. 8 ; 23 W. R. 931 ; 33 L. T. 196 ; in the Exch. Ch. L. R. 8 Q. B. 255. Goffln v. Donnelly, 6 Q. B. D. 307 ; 50 L. J. Q. B. 303 ; 29 W. R. 440 ; 44 L. T. 141 ; 45 J. P. 439. And see Keighley v, Bell, 4 F. & F. 763. Home v. Bentinck, 2 B. & B. 130 ; 4 Moore, 563. The defendant, being the plaintiff's superior officer, in the course of his mili- tary duty forwarded to the Adjutant-General certain letters written by the plaintiff, and at the same time, also in accordance with his military duty, re- ported to the Commander-in-Chief on the contents of such letters, using words defamatory of the plaintiff. It was alleged that the defendant did so mali- ciously, and without any reasonable, probable, or justifiable cause, and not in the bond fide discharge, of his duty as the plaintiff's superior officer. Held, on demurrer, by the majority of the Court of Q. B. (Mellor and Lush, JJ.), that such reports being made in the course of military duty were absolutely priv- ileged, and that the civil courts had no jurisdiction over such purely military matters. Cockburn, C. J., dissented On the grounds that it never could be the duty of a military officer falsely, maliciously, and without reasonable and pro- bable cause to libel his fellow-officer, that the courts of common law have (218) 148 ABSOLUTE PRIVILEGE. jurisdiction over all wilful and unjust abuse of military authority, and that it would not in any way be destructive of military discipline or of the efficiency of the army to submit questions of malicious oppression to the opinion of a jury. Bawkins v. Lord Paulet, L. R. 5 Q. B. 94 ; 39 L. J. Q. B. 53 ; 18 W. R. 336 ; 21 L. T. 584. [N. B. — There was no appeal in this case. The arguments of Coekburn, C. J., deserve the most careful attention. In Dawkins v. Lord Rokeby, .supra, the de- cision of the House of Lords turned entirely on the fact that the defendant was a witness. Neither Kelly, C. B., nor any of the Law Lords (except perhaps Lord Penzance), rest their judgment on the incompetency of a court of common law to enquire into purely military matters. The Court of Exchequer Chamber no doubt express an opinion that " questions of military discipline and military dut} r alone are cognisable only by a military court, and not by a court of law." (L. R. 8 Q. B. 271.) But after referring to " the eloquent and powerful reason- ing of L. C. J. Coekburn in Dawkins v. Lord F. Paiilet," the Court goes on to express its satisfaction that the question " is yet open to final consideration be- fore a court of the last resort." However, in a court of first instance, at all events, it must now be taken to be the law that the civil courts of common law can take no cognisance of purely military or purely naval matters {Sutton v. Johnstone (1785), 1 T. R. 493 ; Grant v. Gould (1792). 2 Hen. Bl. 69 ; Barms v. Keppel (1766), 2 Wils. 314) ; but wherever the civil rights of a person in the military or naval service are affected by any alleged oppression or injustice at the hands of his superior officers or any illegal action on the part of a military or naval tribunal, there the civil courts may interfere. Re Manser gh, I B. & S. 400 ; 30 L. J . Q. B. 296 ; Warden v. Bailey, 4 Taunt. 67.] [*196] But private letters written by the commanding officer of the regiment to his immediate superior on military matters, as distinct from his official reports, are not absolutely privileged ; but the question of malice should be left to the jury. Dickson v. Earl of Wilton, 1 F. & F. 419. Dickson v. Cambermere, 3 F.& F. 527. [N. B. — If this be not the distinction, these cases must be taken to be over- ruled by the cases cited above. See L. R. 8 Q. B. 272-3.] By a general order it was declared that all unemployed Indian officers ineligible for public employment by reason of misconduct or physical or mental inefficiency should be removed to the pension list. Under this order the plaintiff was removed to the pension list and a notification of such removal was published in the Indian Gazette. Held, on demurrer, that no action lay either for the re- moval of the plaintiff, or for the official publication of the fact : although special damage was alleged. Grant v. Secretary of State for India, 2 C. P. D. 445 ; 25 W. R. 848 ; 37 L. T. 188. See Doss v. Secretary of State for India in Council, L. R. 19 Eq. 509; 23 W. R. 773 ; 32 L. T. 294. And Oliver v. Lord Win. Bentinck, 3 Taunt. 456. (220) QUALIFIED PRIVILEGE. 149 [*i97] PART II. QUALIFIED PRIVILEGE. Cases of qualified privilege may be grouped under three heads : I. Where circumstances cast upon the defendant the duty of making a communication to a certain other person, to whom he makes such communication in the bou&fide performance of such duty. II. Where the defendant has an interest in the subject matter of the communication, and the person to whom he communi- cates it has a corresponding interest. III. Fair and impartial reports of the proceedings of any Court of Justice or of Parliament. In all these instances, if the communication has been made fairly, impartially, without exaggeration or the introduction of irrelevant calumniatory matter, the communication is held privileged. But it must be remembered that although the occasion may be privileged, it is not every communication made on such occasion that is privi- leged. " It is not enough to have an interest or duty in making a communication ; the interest or duty must be shown to exist in making the communication complained of." (Per Dowse, B., 6 L. R. Ir. at p. 269.) A communication which goes beyond the occa- sion " exceeds the privilege." [*198] The first two classes are often stated as one, and cases may frequently occur, which may seem to fall in either or both of them. But the distinction which I propose to draw between them is this : — In the first class of cases, the defendant makes the communica- tion, perhaps to an entire stranger, generally to one with whom he has had no previous concern ; and he does so because he feels it to be his duty so to do. The person to whom he makes the communi- cation is under no corresponding obligation ; and generally has no common interest with the defendant in the mattei\ The defendant's duty would be the same to whomsoever the communication had to be made. In the second class of cases, however, there must have bee'n an intimate relation or connexion already established between the de- fendant and the person to whom he makes the communication, and it is because of this relationship that the communication is privileged. The same words, if uttered to another person with whom the defend- ant had no such connexion, would not be privileged. (221) 150 QUALIFIED PRIVILEGE. The third class of cases might be included in either of the two preceding, for it is the duty of a newspaper reporter to present to the public fair and impartial reports of such proceedings, while on the other hand, as one of the public, he has a common interest with the public in ensuring that such proceedings should be reported with accuracy and uniformity . Bond fide comments on matters of public interest, which are sometimes treated as a fourth class of privileged communications, have been dealt with under the head of Defamatory Words, c. II., ante, pp. 32 — 52. (222) DUTY TO SOCIETY. 15] [* 199] 1. Where circumstances exist, or are reasonably believed by the defendant to exist, which cast upon him till': duty of making a communication to a certain other person, to whom he makes such communication in the bona fide per- formance of such duty. The duty may either be one which the defendant owes to society or one which he owes to his family or to himself. It will be con- venient therefore to treat these cases in the following order : — A. Communications made in pursuance of a duty owned to society. (i) Characters of servants. (ii) Other confidential communications of a private nature, (iii) Information as to crime or misconduct of others : Charges against Public Officials. B. Communications made in self-defence. (iv) Statements necessary to protect the defendant's private interests, (v) Statements provoked or invited by previous words or acts of the plaintiff. In all these cases the duty referred to need not be one binding at law : any " moral or social duty of imperfect obligation " will be sufficient. (Per Lord Campbell in Harrison v. Bush, 5 E. & B. 344 ; 25 L. J. Q. B. 25.) And it is sufficient that the defendant should honestly believe that he has a duty to perform in the matter, although it may turn out that the circumstances were not such as he reasonably concluded them to be. ( Whiteley v. Adams, 15 C. B. N. S. 392; 33 L. J. C. P. 89; 12W. R. 153 ; 9 L. T.[*200] 483; 10 Jur. N. S. 470.) It is a question of bona fides ; in determining which the Court will look at the circumstances as they presented, themselves to the mind of the defendant at the time of publication ; supposing of course that he is guilty of no laches, and does not wil- fully shut his eyes to any source of information. If indeed there were means at hand for acertaining the truth of the matter, of which the defendant neglects to avail himself and chooses rather to remain in ignorance when he might have obtained full information, there will be no pretence for any claim of privilege. Above all, the defendant must, at the date of the communication, implicitly believe in its truth. If a man knowingly makes a false charge against his neighbour, he cannot claim privilege. It never can be his duty to circulate lies. " For, to entitle matter, otherwise libellous, to the protection which attaches to communications made in the fulfilment of a duty, bona fides, or, to use our own equivalent, honesty of purpose, is essential ; and to this, again, two things are necessary — 1, that the communication be made not merely in the course of duty, that is, on an occasion which would justify the making it, but also from a "(223) L52 QUALIFIED PRIVILEGE. sense of duty ; 2, that it be made with a belief of its truth." (Per Cockburn, C. J., in JJawkins v. Lord Paulet, L. R. 5 Q. B. at p. 102.) And even where the defendant, acting under a strong sense of duty, makes a communication which he reasonably believes to be true, still he must be careful not to be led away by his honest indig- nation into exaggerated or unwarrantable expressions. For the privilege extends to nothing which is not justified by the occasion. Thus a letter may be privileged as to one part and not as to the rest. (Warren v. Warren, 1 C. M. &R. 251 ; 4 Tyr. 850 ; Huntley v. Ward, 6 C. B. N. S. 514 ; 1 F. & F. 552 ; 6 Jur. N. S. 18 ; Sim- monds v. Dunne, Ir. R. 5 C. L. 358.) And even where the expressions employed are [*201] allowable in all respects, still the mode of publication may take them out of the privilege. Confidential communications should not be shouted across the street for all passers-by to hear. Nor should they be committed to a postcard or a telegram, which others will read. They should be sent in a letter properly sealed and fastened. If the words be spoken, the defendant must be careful in whose pres- ence he speaks. He should choose a time when no one else is by except those to whom it is his duty to make the statement. It is true that the accidental presence of some third person, unsought by the defendant, will not take the case out of the privilege ; but it would be otherwise if the defendant purposely sought an opportunity of making a communication primti facie privileged in the presence of the very persons who were most likely to act upon it to the prejudice of the plaintiff. (See post, c. IX. Malice.) A. Communications made in pursuance of a duty owed to society. (i.) Characters of Servants. The instance that occurs most frequently in ordinary life of this first class of privileged communications is where the defendant is asked as to the character of his former servant, by one to whom he or she has applied for a situation. A duty is thereby cast upon the former master to state fully and honestly all that he knows either for or against the servant; and any communication, made in the performance of this duty, is clearly privileged for the sake of the common convenience of society, even though it should turn out that the former master was mistaken in some of his statements. But if the master, knowing that the servant deserves a good character, yet having some grudge against him, or from some other malicious motive, deliberately states [*202j what he knows to be false, and gives his late servant a bad character, then such a communication is not a performance of the duty, and therefore is not privileged. There is, in fact, in such a case, evidence of malice which " takes the case out of the privilege." No one is bound to give a character to his servant when asked for (224) servants' CHARACTERS. 153 it. ( Carrol v. Bird, 3 Esp. 201.) The old statute 5 Eliz. c. 4, wliich required a master in certain cases to satisfy two justices of the peace that he had reasonable and sufficient cause for putting away his servant, lias long been obsolete, and now is wholly repealed by the 38 & 39 Vict. c. 86, s. 17. But if any character is given, it must be one fully warranted by the facts, and not prompted by unworthy motives. If, after a favourable character has been given, facts come to the knowledge of the former master which induce him to alter his opinion, it is his duty to inform the person to whom he gave the character of his altered opinion. Hence a Letter written to retract a favourable character previously given will also be privileged. ( Gard- ner v. Slade, 13 Q. B. 796 ; 18 L. J. Q. B. 334 ; 13 Jur. 826 ; Child v. Affleck and wife, 9 B. & C. 403 ; 4 M. & R. 338.) So, again, if I take a servant with a character given her by B., and am sadly disappointed in her, I may write and inform B. that she does not deserve the character he gave her, so that he may refrain from recommending her to others ; and such a letter would be privileged. {Dixon v. Parsons, 1 F. & F. 24.) But see the dicta in Fryer v. Kinnersley, 15 C. B. K S. 429 ; 33 L. J. C. P. 96 ; 10 Jur. N. S. 441. A master may also warn his present servants against associating with a former servant whom he has discharged, and state his reasons for dismissing him. (Somerville v. Hawkins, 10 C. B. 590 ; 20 L. J. C. P. 131 ; 15 Jur. 450.) But if I happen to hear that a discharged servant of mine is about to enter the service of B., it may be questioned whether it is my duty to write off at once and inform B. of [*203] the servant's misconduct. It is certainly safer to wait till B. applies to me for the servant's character. Eagerness to prevent a farmer servant obtaining another place has the appearance of malice, and if it were found that I wrote systematically to every one to whom the plaintiff applied for work, the jury "would probably give damages against me. On the other hand, if B. was an intimate friend or a relation of mine, and there was no other evidence of malice except that I volunteered the infoi'mation, the occasion would still be privileged. In short, when a master '"volunteers to give the character, stronger evidence will be required that he acted bona fide, than in the case where he has given the character after being required so to do.'' (Per Littledale, J., in Pattison v. Jones, 8 B. & Cr. p. 586 ; 3 C. & P. p. 387.) Illustrations. After a mercantile firm has given to one of its clerks a general recommenda- tion by means of which he obtains a situation, if a partner subsequently dis- covers facts which alter his opinion of that clerk's character, it is his duty to communicate the new facts and his change of opinion to the new employer of that clerk, in order to guard against his being misled by the previous recom- mendation of the firm. Fowles v. Bowen, 3 Tiffany (30 N. Y.R .), 20. Sir Gervas Clifton never made any complaint of his butler's conduct while he was with him ; but he suddenly dismissed him without notice and without a month's wages. The butler (naturally, but illegally) refused to leave the house without a month's wages; a violent altercation took place, and eventually a (225) 154 QUALIFIED PRIVILEGE. policeman was sent for who forcibly ejected the butler. Sir Gervas subse- quently gave the butler a very bad character, in too strong terras, and making some charges against him which were wholly unfounded. Verdict for the plaintiff. Damages £20. New trial refused. Rogers v. Clifton, 3 B. & P. 587. Murdoch v. Funduklian, 2 Times L. R. 215, 614. The defendant on being applied to for the character of the plaintiff, who had been his saleswoman, charged her with theft. He had never made such a charge against her till then : he told her that he would say nothing about it if she resumed her employment at his house ; subsequently he said that if she would acknowledge the theft he would give her a character. Held, that there was abundant evidence that the charge of theft was made mala fide, with the intention of compelling plaintiff to return to defendant's service. Damages, £60. Jackson v. Hopperton, 16 C. B. N. S. 829 ; 12 W. R. 913 ; 10 L. T. 529. *204] [If a master about to dismiss his servant for dishonesty calls in a friend to hear what passes, the presence of such third person does not take away priv- ilege from words which the master then uses, imputing dishonesty. Taylor v. Hawkins, 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 746. Jones v. Thomas, 34 W. R. 104 ; 53 L. T. 678 ; 50 J. P. 149. Where a master discharged his footman and cook, and they asked him his reason for doing so, and he told the footman, in the absence«of the cook, that " he and the cook had been robbing him ; " and told the cook, in the absence of the footman, that he had discharged her " because she and the footman had been robbing him : " held, that these were privileged communications as respected the absent parties, as well as those to whom they were respectively made. Manby v. Witt, ) 18 C. B. 544 ; 25 L. J. C. P. 294 ; 2 Jur. N. S. Eastmead v. Witt, \ 1004. A letter written by an employer dismissing a shopwoman, and stating the reasons why in very forcible language, is a privileged communication, and the court will not closely scrutinize the language to find evidence of malice. R. v. Perry, 15 Cox, C. C. 160. (ii.) Other communications of a private nature. (a) Answers to confidential inquiries. The principles which apply to characters given to servants gov- ern also all other answers to private and confidential inquiries. If the owner of a vacant farm ask me as to the character of a person applying to become his tenant, my answer would be privi- leged. So if a friend of mine comes down into the country to live near me, and asks my advice as to the tradesman or doctor he shall employ, I may tell him my opinion of the various tradesmen or doctors in the locality without fear of an action for slander. "If a person w r ho is thinking of dealing with another in any matter of business asks a question abut his character from some one who has means of knowledge, it is for the interests of society that the ques- tion should be answered; and if answered bond fide and without malice, the answer is a privileged communication." (Per Brett, L. J., in Waller v. Loch (C. A.), 7 Q. B. D. 622 ; 51 L. J. Q. B. 274; 30 W. R. 18 ; 45 L. T. 242.) So, too, it is a duty every one owes to society to assist in the dis- covery of any crime, dishonesty, or misconduct, [*205] and to afford all information which will had to the detection of the culprit. "It is a perfectly privileged communication if a party who is* interested in discovering a wrong-doer comes and makes inquiries, and a per- . (226) CONFIDENTIAL ADVICE. 155 son in answer makes a discovery or a bond fide communication which he knows or believes to be true, although it may possibly affect the character of a third person." (Per Parke, B., in Kine v. Sewell, 3 M. & W. 302.) In short, whenever in answering an inquiry the defendant is act- ing bond fide in the discharge of any legal, moral, or social duly, .his answer will be privileged. "Every one owes it as a duty to his fellow-men to state what he knows about a person when inquiry is made." (Per Grove, J., in Robshaw v. Smith, 38 L. T. 423. And see Lentnery. Merfield (C. A.), Times for May 6th, 1880.) And when once such a confidential inquiry is set on foot, all sub- sequent interviews between the parties will be privileged, so long as what takes place thereat is still relevant to the original inquiry. (Beatson v. Skene, 5 H. & N. 838; 29 L. J. Ex. 430; 6 Jur. N. S. 780; 2 L. T. 378; Hopwoodv. Thorn, 8 C. B. 293; 19 L. J. C. P. 94; 14 Jur. 87; Wallace v. Carroll, 11 Ir. C. L. R. 485.) Of course the defendant must honestly believe in the truth of the charge he makes at the time he makes it. And this implies that he must have some ground for the assertion : it need not be a conclu- sive or convincing ground : but no charge should ever be made recklessly and wantonly, even in confidence. The inquirer should be put in possession of all you know, and of your means of knowl- edge; if your only means of knowledge is hearsay, tell him so : do not state a rumour as a fact ; and, in repeating a rumour, be careful not to heighten its colour, or exaggerate its extent. If the only in- formation you possess is contained in a letter, it is best to give him the letter, and leave him to draw his own conclusions. ( Coxhead v. Richards, 2 C. B. 569; 15 L. J. C. P. 278; 10 Jur. 984; Robshaw v. Smith, 38 L. T. 423.) Do not speak with the [* 206] air of know- ing of your own knowledge that every word you say is the fact when you are merely repeating gossip or hazarding a series of reck- less assertions. If time allows, and means of inquiry exist, you should make some attempt to sift the charge before you spread it. In short, confidential advice should be given seriously and conscien- tiously: it should be manifest that you do not take a pleasure in maligning the plaintiff, but are compelled to do so in the honest discharge of a painful duty. And, above all, the answer must be pertinent to the inquiry. If I am asked the plaintiff's name or address, I must not commence to disparage the plaintiff's credit, conduct, family, or wares. In fact, the reply must be an answer to the question, or reasonably induced thereby, and not irrelevant information gratuitously volunteered. (SoHtham v. Allen, Sir T. Raym. 231; Huntley v. Ward, 6 C. B. N. S. 514.) It is for the jury in each ease to determine whether what passed was or was not relevant to the inquiry, and whether or no the information was given confidentially. Illustrations. If a friend tells me he wants a good solicitor to act for him, and asks my opinion of Smith, I am justified in telling him all I know for or against Smith. But if a stranger asked me in the train : " Is not that gentleman a solicitor ? " (227) • 156 QUALIFIED PRIVILEGE. « I should not, it is submitted, be privileged in replying : " Yes, but he ought to have been struck off the rolls long ago." If A. is about to have dealings with B., but first comes to C. and confiden- tially asks him his opinion of B., C.'s answer is privileged. "Everyone is quite at liberty to state his opinion bond fide of the respectability of a party thus inquired about." Per Lord Denman in Storey v. GJiMlands, 8 C. & P. 234. Plaintiff had been tenant to the defendant ; a wine-broker went to defendant to ask him plaintiff's present address. Defendant commenced to abuse the plaintiff. The broker said : " I don't come to inquire about his character, but only for his address ; I have done business with him, before." But the defend- ant continued to denounce the plaintiff as a swindler, adding, however, "I speak in confidence." The broker thanked defendant for his remarks, and declined in future to trust the plaintiff. Held, that it was rightly left to the jury to say if defendant spoke bond fide or maliciously. Picton v. Jdckman, 4 C. & P. 257. Southam v. Allen, Sir T. Raymond, 231. [*207] Watkins met the defendant in Brecon, and addressing him said : " I hear that you say the bank of Bromage and Snead at Monmouth has stopped. Is it true ? " Defendant answered, " Yes, it is. I was told so. It was so reported at Cricklewell, and nobody would take their bills, and I came to town in con- sequence of it myself." Held, that if the defendant understood Watkins to be asking for information by which to regulate his conduct, and spoke the words merely by way of honest advice, they were prima facie privileged. Bromage v. Prosser, 4 B. & Cr. 247 ; 1C. & P. 475 ; 6 D. & R. 296. The defendant was asked to sign a memorial, the object of which was to retain the plaintiff as trustee of a charity from which office he was about to be removqd. The defendant refused to sign, and on being pressed for his reasons, stated them explicitly. Held, a privileged communication. Cowles v. Potts, 34 L. J. Q. B. 247 ; 11 Jur. N. S. 946 ; 13 W. R. 858. The plaintiff had been a Major- General commanding a corps of irregular troops during the war in the Crimea. Complaint having been made of the insubordination of the troops, the corps commanded by the plaintiff w T as placed under the superior command of General Vivian. The plaintiff then resigned his command, and General Vivian directed General Shirley to inquire and report on the state of the corps, and particularly referred him for information on the matter to the defendant, who w r as General Vivian's private secretary and civil commissioner. All communications made by the defendant to General Shirley touching the corps and the plaintiff's management of it are privileged, if the jury find that the defendant at the time honestly believed that he was acting within the scope of his duty in making them. Beatson v. Skene, 5 H. & N. 838 ; 29 L. J. Ex. 430 ; 6 Jur. N. S. 780 ; 2 L. T. 378. Hopwood v. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. A., B., and C. are brother officers in the same regiment. A. meets B. and says, " I have learned that C. has been guilty of an atrocious offence : I wish to consult you whether I should divulge it — whether I should speak of it to the commanding officer." Such remark and the discussion that ensued would be privileged, if bond fide. Per Pi^ot, C. B., in Bell v. Parke, 10 Ir. C. L. *R. 284. [The decision in the case turned on the language of the plea.] The plaintiff was a London merchant .who had had business relations with the London and Yorkshire Bank (Limited). The defendant, the manager of that hank, on being applied to by one Hudson for information about the plaintiff, showed Hudson an anonymous letter which the bank had received about the plaintiff, and which contained the libel in question. Held, that handing Hud- soy the letter in confidence was a privileged communication. Grove, J., in refusing a rule for a new trial made the following remarks : — " The defendant did not act as a volunteer, but was applied to for information. When applied to he did give such information as lie possessed. He might have refused to give that information. He had no legal duty cast upon him to give any opinion. (228) CONFIDENTIAL COMMUNICATIONS. 157 But he was entitled to give his opinion when asked, and afortiori, as ii seems to me, to show any letters he had received bearing on ihe subject. If one man shows another a letter, he leaves him to estimate what value attaches to it; whereas any opinion he gives might be based on very insufficient grounds, it- is better [*208] to state facts than to give an opinion. livery one owes it as a duly to his fellow-men to state what he knows about a person, when inquiry is made ; otherwise no one would be able to discern honest men from dishonest men. It is highly desirable, therefore, that a privilege of this sortshould be maintained. An anonymous letter is usually a very despicable thing. Bui anonymous letters maybe very important, not by reason of what they say, hut because they lead to inquiry, which may substantiate what they have said. It seems to me, therefore, that" he was fully entitled to show this anonymous letter for what it was worth." Robshaw v. Smith, 28 L. T. 423. Where a father employed the defendant to make inquiries about the position and antecedents of his (laughter's husband, a report by the defendant to the father of the result of his inquiries is privileged. Atwill v. Mackintosh, 6 Lathrop (120 Mass.), 177. So where an attorney employed defendant to translate some German into English, no action lies for the publication of such translation to the attorney. Luckerman v. Sonnemchein, ?>2 Freeman (62 Illinois), 115. And see Kerr v. Shedden, 4 C. & P. 528. Du Barre v. Livette, Peake, 76. (b) Confidential communications not in answer to a 'previous inquiry. In the cases just quoted stress is laid on the fact that the defend- ant did not volunteer the information but was expressly applied to for it. This is always no doubt a very material fact in the defend- ant's favour ; but it is never alone decisive. "It is not necessary in all cases that the information should be given in answer to an inquiry." (Per Jessel, M. R, in Waller v. Loch (C. A.), 7 Q. B. D. 621 ; 51 L. J. Q. B. 274 ; 45 L. T. 242.) Many occasions are privileged in which no application is made to the defendant, but he himself takes the initiative ; while, on the other hand, as we have seen, many answers to inquiries will not necessarily be privileged, even if given confidentially. The question in every case is this : — Were the circumstances such that an honest man might reasonably suppose it is his duty to act as the defendant has done in this case ? And the circumstances may be such that it is clearly the duty of a good citizen to go at once to the person most concerned and tell him everything, without waiting for him to come and inquire. It may well be that he has no suspicions, and [*209] never would inquire into the matter unless warned. (See post, pp. 214—217.) But in cases where neither life nor property is in imminent and obvious peril, there the circumstance that the defendant was applied to for the information, and did not volunteer it, will materi- ally affect the issue. Where the matter is not of great or imme- diate importance, interference on my part may be considered offi- cious and meddlesome ; although, had I been applied to, it would clearly have been my dnty to give all the information in my power. An answer to a confidential inquiry may be privileged where the same information if volunteered would be actionable. In cases then in which there can be a doubt as to the defend- (229) 158 QUALIFIED PRIVILEGE. ant's duty to speak, the fact that he was applied to forthe informa- tion will tell strongly in his favour. In cases where his duty to speak was clear without that, the fact that he was applied to is immaterial. lWustratiors. Both the Marquis of Anglesey and his agent told the defendant, the tenant of Haywood Park Farm, to inform them if he saw or heard anything wrong respecting the game. The defendant heard that the gamekeeper was selling I he game, and believing the fact to he so, wrote and informed the Marquis. Held, that the letter was privileged ; hut Parke. J., intimated that if the defendant had not heen previously directed to communicate anything he thought going wrong, the letter would have been unauthorized and libellous. Cockayne v. Hodgkisson, 5 C. & P. 543. See King v. Watts, 8 C. & P. 615. If a master, hearing that a discharged servant is seeking to enter M.'s service, writes to M. of his own accord to give the servant a bad character, and thus forestalls any inquiry by M. ; it will at all events require stronger evidence to prove that he aeted bond fide than it would had he waited for M. to write and inquire. Pattison v. Jones, 8 B. & C. 578 ; 3 M. & R. 101. Horsford was about to deal with the plaintiff, when he met the defendant, who said at once, without his opinion being asked at all, " If you have anything to do with Storey, you will live to repent it ; he is a most unprincipled man," &c. Lord Denman directed a verdict for the plaintiff, because the defendant began by making the statement, without waiting to be asked. Storey v. Challands, 8 C. & P. 234. Nash selected plaintiff to be his attorney in an action. Defendant, apparently [*210] a total stranger, wrote to Nash to deprecate his so employing the plain- tiff. This was held to be clearly not a confidential communication. Damages, Is. Godson v. Home, 1 B. & B. 7 ; 3 Moore, 223. A husband asked a medical man to see his wife and ascertain her mental con- dition. He reported to the husband that she was insane. Held, a privileged communication. Weldon v. Winslow, Times for March 14th to 19th, 1884. I am not justified in standing at the door of a tradesman's shop and volun- tarily defaming his character to his intending customers. But if an intending customer comes to me and inquires as to the respectability or credit of that tradesman, it it is my duty to tell him all I know. Storey v. Challands, 8 C. & P. 234 At the hearing of a county court case, Netflefold v. Fulcher, Fulehers solic- itor commented severely on 'the conduct of the plaintiff, Nettlefold's debt collec- tor. Not content with that, Fulcher's solicitor sent a full report of the case to the Marylebone Gazette, including his remarks on the plaintiff. The jury found that this report was substantially fair and accurate, but that it was sent to the newspaper " with a certain amount of malice." The Court upheld this finding, laying especial stress upon the fact that the defendant was a volunteer, and not an ordinary reporter for that paper. Stevens v. Sampson, 5 Ex. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. R. 87 ; 41 L. T. 782. (c) Communications made in discharge of a duty arising from a confidential relationship existing between the parties. In what cases then will a defendant he privileged in going of his own accord to the person concerned, and giving him information which he has not asked for ? This is often a difficult question to answer. But in one class of cases it is clear that it is not only excusable, but that it is imperative on the defendant so to do ; and (230) CONFIDENTIAL RELATION. 159 that is where there exists between the parties such a confidential relation as to throw on the defendant the duty of protecting the interests of the persons concerned. Sueli a confidential relationship exists between husband and wife, father and son, brother and sister, guardian and ward, master and servant, principal and agent, solicitor and client, partners, or even intimate friends: in short, wherever any trust or confidence is reposed by the one in the other. In other words, it will be the duty of A. to volunteer information to 15., whenever B could justly [*21l] reproach A. for his silenee if he did not volunteer such information. Merely labelling a letter " Private and confidential" or merely stating, " I speak in confidence" will not make a communication confidential in the legal sense of that term, if there be in fact no relationship between the parties which the law deems confidential. (Picton v. Jackman, 4 C. & I*. 257.) Thus it is clearly the duty of my steward, bailiff, foreman, or housekeeper, to whom I have entrusted the management of my lands, business, or house, to come and tell me if they think anything is going wrong, and not to wait till my own suspicions are aroused, and I myself begin asking questions. So my family solicitor may voluntarily write and inform me of anything which he thinks it is to my advantage to know, without waiting for me to come down to his office and inquire. But it would be dangerous for another solicitor, wdiom I had never employed, to volunteer the same information ; for till I retain him in the matter, there is no confi- dential relation existing between us. So a father, guardian, or an intimate friend may warn a young man against associating with a particular individual ; or may warn a lady not to marry a particular suitor ; though in the same circumstances it might be considered officious and meddlesome, if a mere stranger gave such a warning. So if the defendant is in the army or in a government office, it would be his duty to inform his official superiors of any serious misconduct on the part of his subordinates ; for the defendant is in some degree answerable for the faults of those immediately under his control. But it does not follow that, if A. and B. are officers or clerks of equal rank and standing, it is the duty of A. to tell tales of B., except in self-defence ; for A's superiors expect him to do his own work merely, and have not invested him with any authority or control over B. (See Belle v. Parke, 10 Ir. C. L. R. 284 ; 11 Ir. C. L. R. 413.) Illustrations. My regular solicitor may unasked give me any information concerning third persons of which lie thinks it to my interest that I should be informed, even although he is not at the moment conducting any legal proceedings forme. Davis v. Reeves, 5 Ir. C. L. R. 79. A solicitor who is conducting a case for a minor may inform his next friend of the minor's misconduct. Wright v. Woodgate, 2 C. M. & R. 573; 1 Tyr. & G. 12 ; 1 Gale, 329 (approved in L. R. 4 P. C. 495.) [*212J Rumours being in circulation prejudicial to the character of the plaintiff, a dissenting minister, he courted inquiry, and appointed A. to sift the (231) 1G0 QUALIFIED PRIVILEGE. matter thoroughly. It whs agreed that the defendant should represent the malcontent portion of the congregation, and stale the ease againsl the plaintiff to A. A confidential relationship being thus established between the defendant and A., all that took place between them, whether by word of mouth or in writing, SO Long as the inquiry lasted, and relative thereto, was held to be privileged. Hopwood v. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. A report by the Comptroller of the Navy to the Board of Admiralty upon the plans and' proposals of a naval architect is clearly privileged. Per drove, Henwood v. Harri»m, L. R, 7 C. P. 606 ; 41 L. J. C. P. 200 ; 20 \Y. R. 1000 ; 26 L. T. 938. A timekeeper employed on public works, on behalf of a public department, wrote a letter to the secretary of the department, imputing fraud to tin eon- tractor. Blackburn, J., directed the jury that if they thought the letter was written in good faith and in the discharge of the defendant's duty to his employers, it was privileged, although written to the wrong person. Scarll v. Dixon, 4 F. & F. 250. A relation or intimate friend may confidentially advise a lady not to marry a particular suitor, and assign reasons, provided he really believes in the truth of the statements he makes. Todd v. Hawkins, 2 M. & Rob. 20 ; 8 C. & P. 88. And see per Erskine, amicum curia, 2 Smith, 4. Adams v. Coleridge, 1 Times L. R. 84. The defendant and Tinmouth were joint owners of The Robinson, and engaged the plaintiff as master ; in April, 1843, defendant purchased Tinmouth's share ; in August, 1843, defendant wrote a business letter to Tinmouth, claiming a return of £150, and incidentally libelled the plaintiff. Held a privileged communication, as the defendant and Tinmouth were still in confidential re- lationship. „. _„ Wilson v. Robinson, 7 Q. B. 68 ; 14 L. J. Q B. 196 ; 9 Jur. 726. The defendant, a linendraper, dismissed his apprentice without sufficient legal excuse : he wrote a letter to her parents, informing them that the girl would be sent home, and giving his reasons for her dismissal. Cockburn, C. J., held this letter privileged, as there was clearly a confidential relationship between the girl's master and her parents. James v. Jolly, Bristol Summer Assizes, 1879. See Fowler and wife v. Homer, 3 Camp. 294. So of course a letter to the girl herself stating in detail the faults her late employer found with her. R. v. Perry, 15 Cox, C. C. 169. But a complaint of a man's conduct is not privileged, if addressed by the employer to the man's wife. Jones v. Williams, 1 Times L. R. 572. The officers and men of the garrison of St. Helena gave an entertainment at, the theatre at which considerable noise and disturbamce took place. The com- manding officer was informed that this was caused by the plaintiff who was said to have been drunk. The plaintiff was an assistant master in the Govern- ment School. The commanding officer reported the circumstances to the colonial [*213] secretary of the island, and the plaintiff was in consequence suspended from his appointment. Verdict for the plaintiff disapproved and set aside, and judgment arrested. Stace v. Griffith, L. R. 2 P. C. 426 ; Moore. P. C. C. N. S. 18 ; 20 L. T. 197. Sutton v. Plumridge, 16 L. T. 741. It is the duty of an under-master in a college school to inform the head- master that reports have been for some time in circulation imputing habits of drunkenness to the second-master. Hume v. Marshall, (Cockburn, C. J.), 42 J. P. 136. But where, after an election, the agent of the defeated candidate wrote a letter to the agent of the successful candidate, asserting that the plaintiff and another (both members of the successful candidate's committee) had bribed a (232) INFORMATION VOLUNTEERED. 161 particular voter, the latter was held not to be privileged, as there was no con fidential relation exising between the two agents. Miekeson v. Milliard and another, L. It. 9 Ex. 79 ; 43 L. J. Ex. 37 ■ 22 W. It. 372 ; 30 L. T. 196. A circular letter, sent by the secretary to the members of a society for the protection of trade against sharpers and swindlers, is not a privileged communi- cation. Getting v. Foss, 3 C. & P. 160. Goldstein v. Foss, 2 C. & P. 252 ; 6 B. & C. 154 ; 4 Bing. 489 ; 2 Y. & J. 146 ; 4 D. & R. 197 ; 1 M. & P. 402. Humphreys v. Miller, 4 C. & P. 7. But now see Waller v. Loch, (C. A. ), 7 Q. B. D. 619; 51 L. J. Q. B. 274; 30 W. R. 18 ; 45 L. T. 243 ; 46 J. P. 484. Clover v. Hoyden, L. It. 17 Eq. 190 ; 43 L. J. Ch. 665 ; 22 W. R. 254 ; 29 L. T. 639. JYewbold v. Bradtstreet and Son, 57 Maryland, 38 ; 40 Amer. Rep. 426. l (d) Information volunteered when there is no confidential relationship existing between the parties. Where the defendant does not stand in any confidential relation to the person interested, it is difficult to define what circumstances will he sufficient to impose on him the duty of volunteering the information. The rule of law applicable to such cases cannot be better expressed then in the following passage : — " Where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he bond fide and without malice does tell them it is a privileged communi- cation," (per Blackburn, J., in Davies v. Snead, L. R. 5 Q. B. 611 ; 39 L. J. [ * 214 ] Q. B. 202 ; 23 L. T. 609)— a passage cited with approval by Jessel, M. R., and Brett, L. J., in Waller v. Loch, (C. A.), 7 Q. B. D. 621, 622 ; 51 L. J. Q. B. 274 ; 30 W. R. 18 ; 45 L. T. 242 ; 46 J. P. 484. But the difficulty is in any given case to determine whether it had or had not become right in the interests of society that the defendant should act as he did. And this is a question rather of social morality than of law. ^or instance, if I learn that one of my tradesmen is about to sup- 's on credit to a man whom I know to be practically insolvent,, r '- him not to do so ? Is it right, in the interests of society, . ell him ".-hat T know, or am I to stand by and see him It ■ ? In the days of Elizabeth, it was considered clear laA „ xjo action would lie for ?uch a caution given as " good coun- sel. ( Vanspike v. Cleyson, Cro. Eliz. 541 ; 1 Roll. Abr. 67.) So it was in the days of George III. [Herber v. Dowson, B. N. P. 8). But in 1838 Lord Abinger, C. B., held that no such communication suould be volunteered : the defendant must wait till the tradesman + o him for advice. "If the defendant had been asked by '* as to the plaintiff, and had said what he did without ' .10 action would have been maintainable ; but as he made the unication without being asked in any way to do so, he is liable ■- action, if the words reflect on the character of the plaintiff as i.an. {Ring v. Watts, 8 C. & P. at p. 615.) And in Bennett & SLAN. (233) 162 QUALIFIED PRIVILEGE. |V Beacon (1846), 2 C. B. 628 ; 15 L. J. C. P. 289, the Court of Com- mon Pleas was equally divided on this question. I venture to think that the judgments of Tindal, C. J., and Erie, J., would be followed in the present day rather than those of Coltman and Gresswell, JJ. I think such a caution would be held privileged if made on adequate grounds out of concern for the person cautioned, and not from any spite against the plaintiff. In Coxhead v. Bichards (1846, 2 C. B. 569 ; 14 L. J. C. P. 278 ; 10 Jur. 984, the same Court was equally divided on a very similar question, whether a man may inform the owner of a ship that his captain has been guilty of gross misconduct at sea. Here, again, I think the view taken by Tindal, C. J., and Erie, J., would probably prevail in the present day. Willes, J., said in Amann v. Daman (1860), 8 C. B. K S. at p. 602 ; 29 L. J. C. P. at p. 314, that he was prepared " to go the whole length " with them. It was admitted on all hands in Clark v. Mob/neux, 3 Q. D. 237; 47 L. J. Q. B.[*215] 230 ; 26 W. R. 104 ;36 L. T. 466 ; 37 L. T. 694 ; 14 Cox, C. C. 10, that a letter sent to an absent vicar, informing him of the misconduct of the curate whom he had left in charge of the parish, was privileged. And generally, am I not always justified in informing a master or employer of any misconduct on the part of his servant or workman which has come to my knowledge, and not to his ? It is submitted that such a communication is privileged, although volunteered, if made honestly from a sense of duty, and not officiously, or from a love of gossip. " If a neighbour makes inquiry of another respecting his own serv- ants, that other may state what he believes to be true ; but the case is different when the statement is a voluntary act ; yet, even in this case, the jury is to consider whether the words were dictated by a sense of the duty which one neighbour owes to another." (Per Coltman, J., in Rumsey v. Webb et icx. (1842), Car. & M. at p. 105 ; and this direction was approved by the Court, 11 L. J. C. P. 129.) In Brooks v. Blanshard (1833), 1 Cr. & M. 779; 3 Tyrw. 844, the plaintiff w T as neither in the employ of the Wear Commissioners, nor seeking such employment, at the time when the defendant wrote the letter which afterwards pi'evented plaintiff's election ; otherwise it would probably have been held a privileged communication. ." was the oral statement in Harris v. Thompson (1853), i° 333. In both cases the communication .was volunteered. It appears to be clear that if the defendant reasonab s that human life would be seriously imperilled by his remainu v nt he may volunteer information to those thus endangered, or to Ueir master, though he be not himself personally concerned (see pr Cresswell, J., 2 C. B. 605.) So if the money or goods of the pe - son to whom he speaks would be in great and obvious danger of bt ing stolen or destroyed. So too it appears that the defendant may. without being applied to for the information, acquaint a master the misconduct of his servants, if instances have come und especial notice of the defendant which have been concealed f roi. master's eye. But in most other cases the defendant runs a & risk in volunteering statements which afterwards turn out to 1 (234) INFORMATION VOLUNTEER KI). [63 accurate, unless indeed he is himself personally interested [*216) in the matter, or compelled to interfere by the fiduciary relationship in which he stands to some person concerned. Although the defend- ant may feel sure that if he were in his neighbour's place, he should be most grateful for the information conveyed, still he must recollect that it may eventually turn out, that in endeavouring to avert a fancied injury to that neighbour, he has really inflicted an undoubted and undeserved injury on the plaintiff. Of course defendant must at the time he makes the statement sincerely believe in its truth. But this alone will afford him node- fence. (Botterill v. Whyte/iead, 41 L. T. 588.) It is necessary further that circumstances should be present to his mind which reasonably impose on him a duty to make such statement. If such circumstances exist, the statement is privileged, although it may prove to be untrue. It is not necessary that before making such statement the defendant should have thoroughly inves- tigated the reports which had reached him. Hearsay is sufficient reasonable and probable cause in the absence of malice. (Maitland v. Bramwell, 5 F. & F. 623 ; Coxhead v. Richards, 2 C. B. 569 ; 15 L. J. C. P. 278 ; Lister v. Perryman, L. R. 4 H. L. 521 ; 39 L. J. Ex. 177 ; 23 L. T. 269) ; unless the defendant ought for any reason to have known that his informant was unreliable and his story un- deserving of belief. And, lastly, the defendant must make the statement under an honest sense of duty, desiring to serve the person most concerned, and not from any malicious or self-seeking motive. It is the province of the judge to decide whether a communication is privileged or not, when the facts are undisputed. If therefore, although the defendant alleges that he acted under an honest sense of duty, the judge can see no evidence of any circumstances raising such a duty, he should rule that no primd facie case of privilege has been established. If, however, circumstances have been proved be- fore him, rendering the alleged sense of duty reasonably possible, the judge should leave to the jury the question : Did the defendant honestly believe it to be his duty to make the communication com- plained of, and did he do so under a sense of that duty ? [*217] In deciding this question, the jury must not ask themselves merely, " Should we have acted as the defendant has done in such circumstances ?" for different people act differently in similar per- plexities. Moreover the matter has been thoroughly investigated by the time it comes before the jury, and what to the defendant at the time seemed matter of serious suspicion has all been explained away in court. The jury must place themselves in the position of the defendant at the time these suspicious circumstances were brought to his knowledge, when first the question arose in his mind ; " ought I not to inform A. ? " It may well be that another man ' would have said, " It is no concern of mine," and would have done nothing (which is always the safer course). But that does not prove that defendant was wrong in acting as he did. It is not sufficient for the defendant merely to swear, " I acted under a sense of duty," (235) 1G4 QUAI.IFIKD PBIVILHGK. if no other reasonable man would have so acted in the same circum- stances. But the jury should find for the defendant it' they are satisfied that he both honestly felt, and hud reasonable grounds for feeling, that he could not conscientiously allow A. to continue in secure ignorance, but that he must communicate to him that which he was so much concerned to know. Illustrations. A. and B. arc tenants to (lie same landlord with similar clauses in their res- pective leases. A. lias reason to believe thatB. is breaking his covenants, commil ting waste, violating the rotation of crops, &c. The landlord is away abroad. It is submitted on the authority of Cockayne v. Hodgkisson, 5. C. & P. 543, ante p. 209, that it is not the duty of A. to write and inform the landlord of his sus- picions, and that therefore such a letter would not be privileged ; unless the landlord had in some way set A. in authority over B. A housemaid thinks the cook is robbing their master. It is not her duty to speak at once on bare suspicion merely ; but as soon as she sees something which reasonably appears to her inconsistent with the cook's innocence, she will be justified, it is submitted, in telling her master all she knows. "If a man write to a father scandalous matter concerning his children, of which he gives notice to the father and adviseth the father to have better regard to his children; this is only reformatory, without any respect of profit to him which wrote it ; it shall not be intended to be a libel." Peacock v. Beynal (1612), 2 Brownlow 3 8 L. T. 6». See M'Qregor v. Thwaites, 3 B. & C. 24. A fair and accurate report in a newspaper of proceedings before a magistrate on a preliminary investigation of a charge of treason-felony is privileged, although the prisoners were ultimately committed for trial, and are awaiting trial at the moment of publication. So held in Ireland by Lefroy, C. J., and Fitzgerald and O'Brien, J.J. ; dissentiente, Hayes, J. Bcr law magazine. It attaches equally to fair and accurate reports issued for any lawful reason in pamphlet form or in any other fashion. Though, of course, if there be any other evidence of malice, the mode and extent of publication will be taken into consideration with such other evidence on that issue. {Milissich v. Lloyds, 40 L. J. C. P. 404 ; Salmon v. Lsaac, 20 L. T. 885 ; Riddell v. Clydes- dale Horse /Society, 12 Ct. of Session Cases, 4th Series, 970.) Nor does it matter by whom the report is published ; the priv- ilege is the same, as a matter of law, for a private individual as for a newspaper. (Per Brett, L. J., 4G L. J. C. P. 407.) " I do not think the public press has any peculiar privilege." (Per Bramwell, L. J., 5 Ex. D. 56.) "A newspaper has no greater privilege in such a matter than any ordinary person — any person is privileged publishing such a report if he does so merely to inform the public." (Per Hannen, J., in Salmon v. Lsaac, 20 L. T. at p. 886 ; and see 3 Times L. P. 245.) Illustrations. In a former action for libel brought by the plaintiff, the then defendant had justified. The report of this trial set out the libel in full, and gave the evidence for the defendant on the justification, concluding, however, by stating that the plaintiff had a verdict for £30. The jury, under the" direction of Lord Abiager, took the "bane "and the "antidote" together, and found a verdict for the defendant, on the ground that the report when taken altogether was not injurious to the plaintiff. And the Court refused a rule for a new trial. Chalmers v. Payne, 5 Tyrw. 766 ; 1 Gale, 09 ; 2 C. M. & R. 153. Dicas v. Lawson, ib. The plaintiff and M. were convicted of a conspiracy to extort money from B. ; the report of the trial stated that the plaintiff had written a particular letter, which the plaintiff contended had not in fact been written by him, but by his fellow-conspirator, M. Held, that as the jury had convicted them of a common purpose, and the letter was written in furtherance of that common purpose and set out in the indictment as an overt act of the conspiracy, it made no difference which of the two wrote it ; and that the error, if error it were, was immaterial. Stockdale v. Tarte and others, 4 A. & E. 1016. Alexander v. N. E. R. Co., 6 B. & S. 340 ; 34 L. J. Q. B. 152 ; 13 W. R. 651 ; 11 Jur. N. S. 619. [*257] A barrister, editing a book on the Law of Attorneys, refer red to a case lie Blake, as reported in 30 L. J. Q. B 32, and stated that Mr. Blake was struck off the rolls for misconduct. He was in fact only suspended for two 13 LI3. & SLAN. (265) 194 QUALIFIED PRIVILEGE. years, as appeared from Hie Law Journal report. The publishers were held liable for this carelessness, although of course neither they nor the writer bore Mr. Elake any malice. Damages £100. Blake v. Stt vena andothers, 4 F. & F. 222 : 11 L. T. 543. Gwynn v. 8. A'. h\ Co., 18 L. T. 738. R. v. lofield, 2 Barnard. 128. Where the report of a trial gave none of the evidence, but only an abridg- ment of the speeches of counsel, and the defendant pleaded that it was still in substance a true report of the trial; such plea was held bad on de- murrer. Flint v. Pike, 4 B. & Cr. 473 : 6D.&R. 528. Kane v Mulvany, Ir. R. 2 C. L. 402. A report is not privileged which does not give the evidence, but merely sets out the circumstances " as stated by the counsel " for one party. Saund rs v Mills, Bing. 213 ; 3 M. & P. 520. Woodgate v. Eidout, 4 F. & F. 202. Still less will it be privileged, if after so stating the case the only account given of the evidence is that the witnesses " proved all that had been* stated by the counsel for the prosecution." Lewis v. Walter, 4 B. & Aid. 605. The Morning Post, in reporting proceedings taken against the plaintiff in the Westminster Police Court, stated that certain facts "appealed from the evi- dence." No evidence had in fact been given of them ; but they had been stated in the opening of the solicitor for the prosecution. On these facts, Lord Coleridge, C. J., directed the jury to find for the defendant. But the Divisional Court granted a new trial on the ground that there was a substantial discrep- ancy between the report and what really occurred, and that the question should therefore have been left to the jury whether the report was a fair one ; and this decision was affirmed on appeal, Ashmore v. Borthwick, 49 J. P. 792 ; 2 Times L. P. 113, 209. ' Where a report in the Timesoi a preliminary investigation b< fore a magistrate set out at length the opening of the counsel for the prosecution, but entirely omitted the examination and cross-examination of the prosecutor, the only wit- ness, merely saying that " his testimony supported the statement of his coun- sel " the jury found a verdict for the plaintiff. Damages £10. Pvnero v. Goodlake, 15 L. T. G76. [N.B. — The headnote to this case is strangely misleading : the proceedings were not ex parte ; the defendant, himself a solicitor, was present and cross- examined the witnesses. The important monosyllable " no " appears to be omittedin the report of the argument of Coleridge, Q. ('., p. 077.] The mother of a lady, who was dead and buried, applied to the coroner on affidavits for an order that the body might be exhumed : the affidavits imputed that she had been murdered by her husband. Thereupon the coroner issued his warrant for exhumation. A newspaper reported this fact, and proceeded to state the contents of these affidavits in a sensational paragraph, commencing " From inquiries made by our reporter it appears that the deceased," &c. The [*258] reporter had made no inquiries; he hail merely copied the affidavits. He was convicted and fined £50. B. v. Andrew Gray, 26 J. P. 663. Where the report of a criminal trial gave the speech for the prosecution, a brief resumi of the speech of the prisoner's counsel, who called no witnesses, and the whole of the Lord Chief Baron's summing up in extenso ; but it did not give the evidence except in so far as it was detailed in the judge's summing up ; Lord Coleridge, C. J., held the report necessarily unfair because incomplete, and refused to leave the question of fairness to the jury. But the Court of Appeal held that he was wrong in so doing ; that it is sufficient to publish a fair abstract of the trial, and that the judge's summing up was presumably such an abstract ; that the question of fairness must be left to the jury, and that therefore there must be a new trial. Milissich v. Lloyds (C. A.), 46 L. J. C. P. 404 ; 36 L. T. 432 ; 13 Cox, C. C. 575. (266) NO COMMENTS. 105 An accurate report of a portion of a judicial proceeding will still be privileged, if it does not purport to be a report of the whole. Thus, where a trial lasts more than one day, reports published in the newspapers each morning are protected. Where a man publishes a portion only, when it is in his power to publish the whole, this frag- mentary publication will be evidence of malice, if the pari selected and published tell more against the plaintiff than a report of the whole trial would have done, e.g., if the opening speech of one coun- sel or the evidence on one side only were published after the trial was over. But the judgment or summing up of the learned judge may always be separately published ; for it is a distinct part of the proceedings, not affected by any other, complete in itself and fairly severable "from the rest ; it is also presumably a fair summary of the whole proceedings. (Milissich v. .Lloyds (C. A.), 40 L. J. ('. P. 404 ; 30 L. T. 423 ; 13 Cox, C. C. 575.) Illustrations. Where judicial proceedings last more than one day, and their publication is not expressly forbidden by the Court, a report published in a newspaper evi ry morning of "the proceedings of the preceding day, is privileged, if fair and accurate ; but all comment on the case must be suspended till the proceedings terminate. Lewis v. Levy, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 970. [*259] The sentence of a court martial may be read at the bead of every regiment. Per Heath, J., in Oliver v. Bentinck, 3 Taunt, at p. 459. The plaintiff had sued defendants in the Chancery Division, and the action was dismissed with costs. Defendants thereupon published, in the form of a pamphlet, a verbatim report of the whole judgment, taken from the shorthand writer's notes, but omitting all the evidence and speeches on either side. Tire jury having negatived malrce, the Court of Appeal held the pamphlet privileged. MacDougall v. Knight <£• Son (C. A.), 17 Q. B. D. 636 ; 55 L. J. Q. B. 464 ; 34 W. R. 727 ; 55 L. T. 274. A weekly paper stated, on December 21st, 1881, that plaintiff had been brought up at the Nottingham Police Court on the preceding Monday (15th) and charged with obtaining money on false pretences, and that " a number of other charges will be brought against him." It omitted all mention of the fact that plaintiff had been brought up again on remand on the preceding Thursday (18th) and triumphantly discharged. The jury awarded the plaintiff £45 m addition to the £5 which defendant had paid into Court under Lord Camp- bell's Act. Grimwade v. Dicks and others, 2 Times L. R. 627. Where the plaintiff in a trade-mark case failed on all points but one, and afterwards published a " caution" to the trade, which stated the effect of the judgment accurately so far as it was in his favour, but omitted all allusion to the "parts of the subject in defendant's favour, North, J., held the report unfair, and granted an injunction restraining its circulation. Hayward & Co. v. Haywwrd & Sons, 34 Ch. D. 198 ; 56 L. J. Ch. 287 ; 35 W. R. 392 ;' 55 L. T. 729. The reporter niust add nothing of his own. He must not state his opinion of the conduct of the parties, or impute motives there- for : above all, he must not insinuate that a particular witness committed perjury. That is not a report of what occurred ; it is (267) 100 QUALIFIED PRIVILEGE. the comment of the writer on what occurred, and to this no privi- lege attaches. Often no doubt such comments may be justified on another ground, that they are fair and bond fide criticism on a matter of public interest and are therefore not libellous. (See ante, c. II. pp. 32-52.) But such observations, to which quite different considerations apply, should not be mixed up with the history of the case. " If any comments are made, they should not be made as part of the report. The report should be confined to what takes place in Court, and the two things, report and comment, should be kept separate." (Per Lord Campbell, C. J., in Andrews v. | ^260] Chapman, 3 C. & K. 288.) And all sensational headings to reports should be avoided. Illustrations. The captain of a vessel was charged before a magistrate with an indecent assault upon a, lady on board his own ship. The defendant's newspaper pub- lished a report of the case, interspersed with comments which assumed the guilt of the captain, commended die conduct of the lady, and generally tended to inflame the minds of the public violently against the accused. Held, that no privilege attached to such comments and that the report was neither fair nor dispassionate. ! R. v. fflsher and others, 2 Camp. 5G3. And see R. v. Lee, 5 Esp. 123. R. v. Fleet, 1 B. & Aid. 379. • It is libellous to publish a highly-coloured account of criminal proceedings, mixed with the reporter's own observations and conclusions upon what passed in court, headed "Judicial Delinquency," and containing an insinuation that. the plaintiff (" our hero ") had committed perjury : and it is no justification to pick out such parts of the libel as contain an account of the trial, and to plead that such parts are true and accurate, leaving the extraneous matter altogether unjustified. Stiles v. Ndhes, 7 East, 493 ; same case sub nomine Carr v. Jones, 3 ' Smith, 491. . The report of a i rial set out the speech for the counsel for the prosecution, and then added : — " The first witness was R. P., who proved all that had been stated by the counsel for the prosecution : " but owing to the absence of a piece of formal evidence in no way bearing on the merits of the case, " the jury, under the direction of the learned judge, were obliged to give a verdict of acquittal, to the great regret of a crowded court, on whom the statement and •the evidence, so far as it went, made a strong impression of their guilt." Hi hi, that no privilege applied. Lewis v. Walter, 4 B. & Aid. 605. Roberts v. Brown, 10 Bing. 519 ; 4 Moo. & Sc. 407. On an examination into the sullieiency of sureties on an election petition, under 9 Geo. IV. c. 22, s. 7, affidavits were put in to show that one of them (the plaintiff) was embarrassed in his affairs, and an insufficient surety. A newspaper report of the examination proceeded to ask why the plaintiff, being wholly unconnected with the borough, should take so much trouble about the matter. " There can be but one answer to these very natural and reasonable queries, he is hired for the occasion." Held, that this question and answer formed no part of the report ; and therefore enjoyed no privilege ; and that it was properly left to the jury to say whether they were a fair and bond fuh 1 comment on a matter of public interest in that borough. Verdict for the plaintiff. Damages £100. Cooper v. Lawson, 8 A. & E. 746 ; 1 W. W. & IT. 601 ; 2 Jur. 919 ; 1 P. & D. 15. The Observer gave a true and faithful account of some proceedings in the Insolvent Debtors Court, but headed it with the words " Shameful conduct of t*261] an attorney." Held, that for those words, as they were not justified, the plaintiff was entitled to recover. (268) PLAINTIFF MUST PROVK MALICE. 107 Clement v. Lewis, (Exch. Ch.), 3 Br. & B. 297 ; 3 B. & Aid. 702; 7 Moore, 200. Bishop v. Latimer, 4 L. T. 775. A paragraph was headed " An Honest Lawyer," and stated thai the plaintiff had been reprimanded by one of the masters of the Queen's Bench "for what is called sharp practice in his profession." Held, libellous. BoydeU v. Jones, 4 M. & W. 446 ; 1 II. & II. 408 ; 7 Dowl. 210. Mint v. Pike, 4 B. & C. 473 ; 6 I). & R. 528. A report of the hearing of a charge of perjury before a magisl rate was headed "Wilful and Corrupt Perjury," and staled that the "evidence before the magistrate entirely negatived the story of the" plaintiff. The jury found a verdict for the defendant, on the ground that it was a fair and correct report of what occurred at the hearing. But the Court, set aside the verdict on this count, and entered a verdict for the plaintiff with nominal damages. I, wis v. L< vy, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 970. The law is the same in America. Thomas v. Croswell, 7 Johns. (N. Y. Supr. Court) 264. Commonwealth v. Blandiwj, 3 Pick. (20 Mass.) o()4. The privilege attaching to fair and accurate reports may be rebutted by proof of actual malice. Reports of judicial proceed-' ings are not absolutely privileged, by whomsoever published. (Stevens v. Sampson, 5 Ex. D. 53 ; 49 L. J. Q. B. 120.) But it is of course very difficult to prove that an ordinary newspaper reporter has been actuated by malice : whereas if one of the parties to a cause or his solicitor' sent the report, the jury would probably start with a presumption that the report was biassed and unfair. (See the remarks of Wood, V. C, in Coleman v. West Hartlepool Har- bour and Railway Co., 2 L. T. 766 ; 8 W. R. 734.) Illustrations. A churchwarden obtained a writ of prohibition against the Bishop of Chi- chester on an affidavit which falsely stated the facts. He immediately had the writ translated into English, and dispersed 2,000 copies of such translation all over the kingdom, with a title-page alleging that by such writ " the illegality of oaths is declared," which was not the case. Held, " a most seditious libel." Wdterfleld v. Bishop of Chichester, 2 Mod. 118. [*262] Defendant published, in the form of a circular, headed " Take notice. Important to Farmers," a fairly accurate report of two actions brought by the plaintiff in the Ashford County Court to recover the price of manures he had sold. These circulars were extensively distributed on market days in the home and adjoining counties, and plaintiff's "business consequently fell off. The jury considered that the defendant published it with a view of injuring the plaintiff. Damages £287. Salmon v. Isaac, 20 L. T. 885. In a County Court action, Kcttlefold v. Faleher, the defendant, a solicitor, appeared for Nettlefold, and commented severely on the conduct of the plaintiff,, who was Fulcher's agent and debt collector. The defendant sent to the local newspapers a report of the case, which the jury found " was in substance a lair report;" but they also found that "it was sent with a certain amount of malice." Verdict 'for the plaintiff. Damages 40s. On appeal, it was argued that the defendant was entitled to judgment on the first finding of the jury, and that the motive which the defendant had in sending the report was imma- terial. But the Court of Appeal held that Cockburn, C. J., was right in direct- ing judgment to be entered for the plaintiff. Stevens v. Sampson, 5 Ex. D. 53 ; 49 L. J. Q. B. 120 ; 28 ^ . R. 8, ; 41 L. T. 782. Plaintiff brought an action against defendant, and applied for an injunction. Defendant applied at the same time for a receiver, which was refused. Tlierc- (269) 198 QUALIFIED PRIVILEGE. upon defendant said that he would " make it d d hot for Dodson," and Inserted in a newspaper he owned a report of the application, setting out all his own counsel had said against the plaintiff's solvency, etc., at full length, hut omitting all mention of plaintiff's affidavit. Held, ample evidence of malice. Damages £250. Dodson v. Omen, 2 Times L. R. 111. The defendants presented a petition in the Croydon County Court to adjudi- cate the plaintiff a bankrupt, and to set aside a bill of sale which they alleged to be fraudulent. The County Court judge heard the case in his own room, where no reporters were present, and decided that the bill of sale was fraudu- lent. After the case was over, the defendants sent for a reporter to the Grey- hound Hotel, and gave him an account of the proceedings before the County Court judge, from which he drew up a report, which appeared in several papers. The jury found that the report was " fair as far as it went ;" but it did not state the fact that the plaintiff had announced his intention to appeal. Held, that neither this omission, nor the fact that the report was furnished by one of the parties, instead of being taken by the reporter in the usual way, was, by itself, sufficient to destroy the privilege attaching to all fair reports of legal proceedings. (Per Cockburn, C. J., at Nisi Prius, Myers v. Defries, Times, July 23rd, 1877.) But the jury being satisfied from the whole circumstances that the defendants furnished the report with the express intention of injuring the plaintiff, gave the plaintiff £230 damages on the first trial, and one farthing damages on the second. Meyers v. Defries, 4 Ex. D. 176 ; 5 Ex. D. 15, 180 ; 48 L. J. Ex.446 ; 28 W. R. 406 ; 40 L. T. 795 ; 41 L. T. 659. And see Saxby v. Easterbrook, 3 C. P. D. 339 ; 27 W. R. 188. [*263] Hence in these cases there may be two distinct questions for the jury : — (i.) Is the report fair and accurate ? If so, it is prima facie privileged ; if not, verdict for the plaintiff, (ii.) Was the report, though fair and accurate, published maliciously ? Was it pub- lished solely to afford information to the public and for the benefit of society, without any reference to the individuals concerned ; or was it published with the malicious intention of injuring the reputa- tion of the plaintiff ? The second question of course only arises when the first has been already answered in the affirmative. And, of course, there is in each case the previous question for the judge, "Is there any evidence to go to the jury of inaccuracy or of malice ? " Where there is no suggestion of malice and no evidence on which a reasonable man could find that the report is not absolutely fail-, the judge should stop the case and direct a verdict for the de- fendant : e. g. where the report is verbatim or nearly so ; or corre- sponds in all material particulars with a report taken by an impartial shorthand writer. (Per Brett, L. J., in Milissich v. Lloyds, 40 L.J. C. P. 407.) But if anything be omitted in the report which could make any appreciable difference in the plaintiff's favour, or anything erroneously inserted which could conceivably tell against him, then it is a question for the jury whether such deviation from absolute accuracy makes the report unfair ; and the judge at Nisi Prius should not direct a verdict for either party. (Risk Allah Be;/ v. Whitehurst and others, 18 L. T. 615 ; Street v.' Licensed Victuallers Society, 22 W. R. 553 ; Ashmore v. Borthwick, 49 J. P. 792 ; 2 Times L. R. 113, 209 ; ante, p. 257.) The jury in considering the question should not dwell too much on isolated passages : they should consider the report as a whole. They should ask themselves what impression would be made on the (270) PARLIAMENTARY REPORTS. 199 mind of an unprejudiced reader who reads the report st raighl through knowing nothing about the case beforehand. Slight errors may easily occur ; and if such errors d<> not substantially alter the impres- sion of the matter which the ordinary reader would receive, the jury should find for the defendant. (Stockdale v. Tarte and others, 4 A. & E. 1016 ;ante, p. 25G.) If, however, there is a substantial misstatement of any material fact, and such misstatement is pre- judicial to the reputation of the plaintiff, then the report is unfair and inaccurate, and the jury should find for the plaintiff. [*9M] (ii) Jleports of Parliamentary Proceedings. Every fair and accurate report of any proceeding in either House of Parliament, or in any committee thereof,is privileged, even though it contain matter defamatory of an individual. The analogy between such reports and those of legal proceedings is complete. Whatever would deprive a report of a trial of immu- nity, will equally deprive a- report of parliamentary proceedings of all privilege. There was for a long time great doubt on this subject, but the law is now clearly and most satisfactorily settled by the decision in Wason v. Walter, L. R. 4 Q. B. 73; 38 L. J. Q. B. 34; 17 W. R. 1G9; 19 L. T. 409. Such doubt was caused by the fact that there were Standing Orders of both Houses of Parliament prohibiting such pub- lications ; and it was argued with some force that no privilege could attach to any report which was published in contravention of such Standing Orders, and was therefore in itself a contempt of the House. We have seen {ante, p. 254) that when a learned judge expressly prohibits the publication of the proceedings before him, any report of them is a contempt and wholly unprivileged. (li. v. Clement, 4 B. & Aid. 218.) And the earliest reports of parliamentary proceed- ings were only published in fear and trembling as " Debates in the Senate of Lilliput," with the names of the speakers disguised. And even for such reports Cave, the editor of the GentlemcaSs Magazine, was cited before the House of Lords for breach of privilege (April, 1747) ; and Johnson's pen ceased to indite ponderous speeches for " Whig dogs." But in 1749, Cave began again, and his reports now took the form of letters from an M. P. to a friend in the country. After 1752 they were avowedly printed as reports ; but still only the initials of the speakers were given. As late as 1801 the printer and publishers of the Morning Herald were committed to the custody of Black Rod, for publishing an account of a debate in the House of Lords ; but then such an account Avas expressly declared to be " a scandalous misrepresentation " of what had really occurred. And now such Standing Orders are quite obsolete. [*2G5] A speech made by a member of Parliament in the House is of course absolutely privileged. If he subsequently causes his speech to be printed, and circulates it privately among his constit- (271) 2U0 QUALIFIED PRIVILEGE. uents, bond fide for their information on any matter of general or local interest, a qualified privilege would attach to such report ; [although such publication is expressly forbidden by an obsolete order of the House of Commons, passed in 1641 and still a Standing- Order of the House ; 2 Commons' Journal, 209]. (Per Lord Camp- bell, C. J., and Crompton, J., in JJarisou v. Duncan, 7 E. & I!. 233; 2G L. J. Q. B. 1()7; and Cockburn, C. J., in Wason v. Walter, L. R. 4 Q. B. 95 ; 38 L. J. Q. B. 42 ; 1!) L. T. 416.) But if a member of Parliament publishes his speech to all the world, with the malicious intention of injuring the plaintiff, he -will be liable both civilly and criminally. (li. v. Lord Abingdon, 1 Esp. 226 ; 11. v. Creevey, 1 M. & S. 273.) Illustrations. The defendant published the report of a select committee of the House of Commons, which contained a paragraph charging an individual with holding views hostile to the government. But the Court refused to grant a criminal information, on the express ground that the publication, was a true copy of a proceeding in Parliament. B. v. Wright (1799), 8 T. R. 293. The plaintiff induced Earl Russell to present a petition to the House of Lords, charging a high judicial officer with having suppressed evidence before an election committee some thirty years previously. The charge was shown to be wholly unfounded, and the conduct of the plaintiff in presenting such a petition was severely commented on by the Earl of Derby and others in the debate which followed. The plaintiff sued the proprietor of the Times for reporting this debate. Cockburn, C. J., directed the jury, that if they were satisfied that the report was faithful and correct, it was in point of law a privi- leged communication ; and the Court of Queen's Bench subsequently discharged a rule nisi which had been obtained for a new trial on the ground of mis- direction. Wason v. Walter, L. R. 4 Q. B. 73 ; 8 B. & S. 671 ; 38 L. J. Q. B. 34 ; 17 W. R. 169 ; 19 L. T. 409. The proceedings of any committee of the House of Lords may be reported and commented on. Kane v. Mulvany, Ir. L. R. 2 C. L. 402. t* 23C ] (iii.) Other Reports. By the Newspaper Libel and Registration Act, 1881 (44 & 45 Vict. c. 60), s. 2, " Any report published in any newspaper of the proceedings of a public meeting shall be privileged, if such meeting was lawfully convened for a lawful purpose and open to the public, and if such report was fair and accurate, and published without malice, and if the publication of the matter complained of was for the public benefit : provided always, that the protection intended to be afforded by this section shall not be available as a defence in any proceeding, if the plaintiff or pi'osecutor can show that the defendant has refused to insert in the new r spaper in which the report containing the matter complained of appeared a reasonable letter or statement of explanation or contradiction by or on behalf of such plaintiff or prosecutor." No other reports are privileged. If any one publishes an account of the proceedings of any meeting of a town-council, board of guardians, or vestry, of the shareholders in any company, of the (272) NEWSPAPEB REPOETS. 201 subscribers to any charity, or of any public meeting, political or otherwise, and such account contains expressions defamatory of the plaintiff, the fact that it is a fair and accurate report of what actually occurred will not avail as ;i defence, though it may be urged in mitigation of damages ; unless the case comes within the above section. By printing and ptiblishing the statements of the various speakers, he lias made them his own ; and musl either justify and prove them strictly true, or rely upon their being fair and bond, fide comments on a matter of public interest. The above section was passed because it was considered that the common law pressed too severely upon newspaper editors and pro- prietors, who in the ordinary course of their business bad presented to the public a full, true, and impartial account of what really took [*267] place atapublic meeting, considering no doubt that thereby they were merely doing their duty, and then found that the law deemed them guilty of libel. For a detailed examination of its provisions, s^i post, c. XIII. p. 374. So far as I am aware, there is as yet only one reported decision on the section. It will be observed that the protection afforded by it is limited to cases in which the publication of the matter complained of was for the public benefit. Most properly so : for unless there he some advantage to the public countervailing the injury to the individual libelled, there can he no reason why damages should not be recovered. The consequences of reproducing in the papers calumnies uttered at a public meeting are most serious. The original slander may not be actionable per se, or the communication may be privileged ; so that no action lies against the speaker. Moreover, the meeting may have been thinly attended, or the audience may have known that the speaker was not worthy of credit. But it would be a terrible thing for the person defamed if such words could be printed and published to all the world, merely because they were uttered under such circumstances at such a meeting. Charges recklessly made in the excitement of the moment will thus be diffused throughout the country, and will remain recorded in a permanent form against a perfectly innocent person. We cannot tell into whose hands a copy of that newspaper may come. Moreover, additional importance and weight is given to such a calumny by its republication in the columns of a respect- able paper. Many people will believe it merely because it is in print. There is in fact an immense difference between the injury done by such a slander and that caused by its extended circulation by the press. See the remarks of Loi'd Campbell in Davison v. Duncan, 7 E. & B. 231 ; 26 L. J. Q. B. 106 ; 3 Jur. N. S. 613 ; 5 W. R. 253 ; 28 L. T. (Old S.) 265 ; and of Best, C. J., in De Crespigny v. Wellesley, 5 Bing. 402-406, cited ante, p. 158. IU a strut ions. The defendants, the printers and publishers of the Manchester Courier, pub- lished in their paper a report of the proceedings at a meeting of the Board of Guardians for the Altrineham Poor Law Union, at which ex parte chargeswere made against the medical officer of the union workhouse at Knutsford, of neglecting to attend the pauper patients when sent for. Held, that the matter (273) 202 QUALIFIED PEIVILE3E. was one of public interest ; but that the report was not privileged by the occa- sion, although il was admitted to be a bond fide and a correct account of what passed at the meeting ; and the plaintiff recovered 40*. damages and costs. Purcell v. Bowler (C. A.), 2 C. P. I). 215; 46 L. J. P. :iu8 ; 25 W. R. 362; 36 L. T. 410. [*268] A public meeting was called for the purpose of petitioning Parliament against the grant to the Koman Catholic College at Maynooth. The defendant, made a telling speech at such a meeting, commenting severely on penances and other portions of the discipline of the Roman Catholic Church, The ( lourl held that the words were not privileged, although the object of the meeting was legal, and the defendant's speech was pertinent to the occasion. Hearne v. Stoweli, 12 A. & E. 719 ; 4 P. &D. 696; 6Jur, 458; ante, p. 128. See Pierce v. Ellis, 6 Ir. C. L. R. 55. Atameeting of the West Hartlepool Improvement Commissioners, one of the Commissioners made some defamatory remarks as to the conduct of the former secretary of the Bishop of Durham in procuring from the Bishop a licence for the chaplain of the West Hartlepool Cemetery. These remarks were reported in the local newspaper, and the secretary brought an action against the owner of the newspaper for libel. A plea of justification, alleging thai such r< marks were in fact made at a public meeting of the commissioners, and that the alleged libel was an impartial and accurate report of what took place at such meeting, was held bad on demurrer. Damson v. Duncan, 7 E. & B. 229 ; 26 L. J. Q. B. 104 : 3 Jur. N. S. 613 ; 5W.R. 253 ; 28 L. T. (Old S.) 265. So, also, a newspaper proprietor will be held liable for publishing a report made to the vestrv by their medical officer of health, even although the vestry are required by Act of Parliament sooner or later to publish such report them- selves. Popham v. Pickburn, 7 H. & N. 891 ; 31 L. J. Ex. 133 ; 8 Jur. N. S. 179 ; 10 W. R. 324 ; 5 L. T. 846 See also Charlton v. Walton, 6 C. & P. 385. . (27 A) [*269] CHAPTER IX. "In an ordinary action for a libel or for words, though evidence of malice may be given to increase the damages, it n< ver is con- sidered as essential, nor is there any instance of a verdict for the defendant on the ground <>f a want of malice." (Per Bayley, •'., in Bromage v. Prosser, 4 I>. & ('. at p. 257 ; 6 Dowl. & R. 295 ; and per Mansfield, C. J., in Hargrave \. /.< Breton, I Buit. 2425.) As we have seen, an accidental or inadvertent publication of defam- atory words is ground for an action ; ante, )>]>. - r >, 6, 155. Even a lunatic is, it is said, liable for a libel. (Per Kelly, < '. B., in Mor- daunt v. Mordaunt, 39 L. J. Prob. & Matr. 59.) The Courts for this purpose look at the tendency of the publication, not at the intention of the publisher. (Haire v. Wilson, 9 B. & C. 643 ; 4 Man. & Ry. 605 ; Fisher v. Clement, 10 B. &. ('. 47l' ; 5 Man. & Ry. 730.) * The fact that the jury have expressly found in defend- ant's favour that he had no malicious intent, shall not avail him (per Maule, J., in Wenman v. Ash, 13 C. B. 845 ; 22 L. J. C. P. 190 ; 17 Jur. 579 ; 1 C. L. R. 592 ; Huntley v. Ward, C. B. N. S. 514 ; 6 jur. N. S. 18 ; 1 F. & F. 552 ; Blackburn v. Blackburn, 4 Bing. 395 ; 1 M. & P. 33, 03 ; 3 C. & P. 146) ; for if he has in fact spoken words which have injured the plaintiff's reputation he must be taken to have intended the consequences naturally result- ing therefrom. In former days this rule was not so strictly enforced in actions of slander as of libel ; the Courts in those days evincing a strong desire [*270] to discourage all actions of slander, except, perhaps, in cases where the words imputed a capital offence. Thus, where the defendant was sued for saying that he had heard that the plain- tiff had been hanged for stealing a horse, and on the evidence it appeared that defendant spoke the words in genuine grief and sor- row at the news, Ilobart, J., nonsuited the plaintiff, on the express ground that the words were not spoken maliciously. (Crawford v. Middleton, 1 Lev. 82. And see Green/rood v. Brick, cited Cro. Jac. 91 ; ante, p. 5.) Now, however, the absence of malice could only be given in evidence in mitigation of damages ; and the ques- tion whether the defendant acted maliciously or not, should never be left to the jury, unless the occasion be privileged. (Hdirt v. Wilson, 9 B. & C. 643 ; 4 Man. & Ry. 605. Per Lord Denman in Baylis v. Lawrence, 11 A. & E. 024'; 3 P. & D. 529 ; 4 Jur. 652. Per Parke, B., in O'Brien v. Clement, 15 M. & W. 437.) The defendant's intention or motive in using the words is immaterial, if he has in fact wrongfully injured the plaintiff's reputation. (Hooper v. Truscott, 2 Scott, *672 ; 2 Bing. N. C. 457 ; Godson v. Home, 1 Br. & B. 7 ; 3 Moore, 223.) (275) 204 MALICE. It is true that the word "malicious" is usually inserted in every definition of libel or slander, that the pleader invariably introduces it into every statement of claim, and that the older eases contain many dicta to the effect that "malice is the gist , " of an action of libel or slander. But in all these cases the word "malice" is used in a special and technical sense ; it denotes merely the absence of lawful excuse / in fact, to say that defamatory words are malicious in that sense means simply that they are unprivileged, not em- ployed under circumstances which excuse them. But i have thought it best to drop this technical and fictitious use of the word altogether — a use which has been termed " unfortunate " by more than one learned judge. (Per Lord Bramwell, 11 App. Cas. 253 ; 55 L. J. Q. B. 460 ; 55 L. T. 65 ; per Stephen, J.,-41 L. T. 590.) In this book the word "malice" is always used in the popular and ordinary sense of the word ; i.e., to denote some ill-feeling towards the plaintiff or the public ; some mean or crooked motive of which an honourable man would be ashamed. This is called " express malice" or " actual malice " in our older books. Using the word in this sense, I say that till the defendant pleads privilege, malice is no part of the issue. As soon as the judge rules that the occa- sion is privileged, the plaintiff has to prove malice, but not before. In the words of Lord Justice Brett : " When there has been a writing or a speaking of defamatory matter, and the judge has held — and it is for him to decide the question — that although the matter is [* 271] defamatory the occasion on which it is either written or spoken is privileged, it is necessary to consider how, although the occasion is privileged, yet the defendant is not per- mitted to take advantage of the privilege. If the occasion is privi- leged it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion for some indirect and wrong motive. If he uses the occasion to gratify his anger or his malice, he uses the occasion not for the reason which makes the occasion privileged, but for an indirect and wrong motive. If the direct and wrong motive suggested to take the defamatory matter out of the privilege is malice, then there are certain tests of malice. Malice does not mean malice in law, a term in pleading, but actual malice, that which is popularly called malice. If a man is proved to have stated that which he knew to be false, no one need inquire further. Everybody assumes thence- forth that he was malicious, that he did do a wrong thing for some wrong motive. So if it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury nmy infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other indirect motive. The judgment of Bayley, J., in Bromage v. Prosser, 4 B. & C, atp. 255, treats of malice in law : and no doubt where the word 'maliciously' is used is used in a pleading, it means intentionally, wilfully. It has been decided that if the word ' maliciously ' is omitted in a declar- (276) MALICE IN LAW. 205 ation for libel, and the words ' wrongfully ' or ' falsely ' substituted, it is sufficient, the reason being that the word ' maliciously, 9 as use. I in a pleading, has only a technical meaning ; but here we arc dealing with. malice in fact, and malice then means a wrong feeling in a man's mind." {('lark v. Motyneux, 3 Q. B. D. 246, 247 ; 47 L. J. Q. B. 230 ; 26 W. R. L04 ; 37 L. T. 696, 697.) Malice may he defined as any indirect and dishonest motive which induces the defendant to defame the plaintiff. "Malice means any corrupt motive, any wrong motive, or any departure from duty." (Per Erie, C. J., 2 F.& F. 524.) If* malice be proved, the privilege attaching to the occasion, unless il be absolute, is lost at once. The onus of proving 'malice lies on the plaintiff; the [* 272] defendant cannot be called on to prove he did not act maliciously, till some evidence of malice, more than a mere scintilla, has been adduced by the plaintiff. {Taylor v. Hawkins, in Q. B. 321 ; 15 Jur. 746 ; 20 L. J. Q. B. 313 ; Cooke and another v. Wildes, 5 E. & B. 340 ; 24 L. J. Q. B. 367 ; 1 Jur. K S. 610 ; 3 C. L. R. 1090 ; LauglUon v. Bishop of Sodor & Man, L. R. 4 P.O. 495 ; 42 L. J. P. C. 11 ; 21 W. R. 204'; 28 L. T. 377 ; 9 Moore, P. 0. ('. X. S. 318 ; Clark v. Molyneux, (C. A.), 3 Q. B. D. 237 ; 47 L. J. Q. B. 230 ; 26 W. R. 104 ; 37 L. T. 694 ; 14 Cox, C. C. 10.) Such evidence may either be extrinsic — as of previous ill-feeling or personal hos- tility between plaintiff and defendant, threats, rivalry, squabbles, other actions, former libels or slanders, etc. ; or intrinsic — the violence of defendant's language, the mode and extent of its pub- lication, &c. But in either case, if the evidence adduced is equally consistent with either the existence or non-existence of malice, the judge should stop the case ; for there is nothing to rebut the presumption which has arisen in favour* of the defendant from the privileged occasion. (Sornerv'lle v. Hawkins, 10 C. B. 590 ; 20 L. J. C. P. 131 ; 15 Jur. 450 ; Harris v. Thompson, 13 C. B. 333 ; Taylor v. Hawkins 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 746.) That the words are strong is no evidence of malice, if on defendant's view of the facts strong words were justified. [JSpiU v. Maule, L. R. 4 Ex. 232 ; 38 L. J. Ex. 138 ; 17 W, R. 805 ; 20 L. T. 675.) That the statement was volunteered is no evidence of malice, if it was defendant's duty to volunteer it. [Gardner v. Sladeetiix, 13 Q. B. 798 ; 18 L. f. Q. B. 336.) That the statement is now admitted or proved to be untrue is no evidence that it was made maliciously (Cavlfield v. Whitworth, 16 W. R. 936 ; 18 L. T. 527) ; though proof that defendant knew it was untrue when he made it would be conclusive evidence of malice. If the defend- ant is in a position to prove the truth of his statement, "he has no need of privilege : the only use of privilege is in cases where the truth of the statement cannot be proved." (Per Lord Coleridge, C. J., [* 273] in Howe v. Jones, 1 Times L. R. at p. 462. This~is so also in America ; see Lewis and Herrick v. Chapman (Selden, J.), 2 Smith (16 K Y. R.) 369; Vanderzee v. McGregor, 12 Wend. 546 ; Ibtcles v. Bowen, 3 Tiffany (30 N. Y. R.) 20.) (277) 206 MAl.ICK. A mere mistake innocently made through excusable inadvertence cannot in any case be evidence of malice. [Harrison v. Bush, 5 E. & B. 350; 1 Jur. N. S. 846; 25 L. J. Q. B. 25 ; Brett v. Watson, 20 W. R. 723 ; Kershaw v. Bailey, 1 Ex. 74:3; 17 L. J. Ex. 129; Scarll v. Dixon, 4 F. & F. 250; Pater v. Baker, 3 C. B. 831; 10 L. J. C. P. 124; 11 Jur. 370; Tompsonv. Dashwood, 11 Q. B. D. 43; 52 L. J. Q. B. 425; 48 L. T. 943; 48 J. P. 55.) The question of malice or no malice is for the jury. But there is always the prior question: " Is there any evidence of malice to goto the jury ? " and this is for the judge. The presumption in favour of the defendant arising from the privileged occasion remains till it is rebutted by evidence of malice ; and evidence merely equivocal, that is, equally consistent with malice or bond fides, will do nothing towards rebutting the presumption; if therefore, only such evidence be offered, the judge should nonsuit the plaintiff. So, too, the judge should stop the case if there be no more than a scintilla of evidence of malice to go the jury. But it is difficult to say beforehand what will be deemed a mere scintilla, what more than a scintilla, in any given case. The same evidence may make different impressions on different minds (See Adams v. Coleridge, 1 Times L. R. 87). The facts tendered as evidence of malice must always go to prove that the defendant himself was actuated by personal malice against the plaintiff. In an action against the publisher of a magazine, evidence that the editor or the author of any article, not being the publisher, had a spite against the plaintiff, is of course inadmissible. {Robertson v. Wylde, 2 Moo. & Rob. 101; Clark v. JSTewsam, 1 Ex. 131, 139; Cdrmichael v. Waterford and Limerick Ry. Co., 13 Ir. L. R. 313. So in America, York v. Pease, 2 Gray (68 Mass.) 282.) Illustrations. Defendant claimed a leasehold interest iu the manor and castle of Hely, and produced a lease which she knew to be a forgery. Judgment for the plaintiff. Gerard v. Dickenson (1590), 4 Rep. 18 ; Cro. Eliz. 197. Defendant wrote to his wife's uncle telling him that his son and heir was leading a fast wild life, and was longing for his father's death, and that all his [274*] inheritance would not he sufficient to satisfy his debts. The Court of Star Chamber were satisfied that this letter was written with the intuition of alienating the father from the son, and inducing the father to leave his lands and money to the defendant or his wife, and not from an honest desire that the son should reform his life ; and they fined defendant £200. Peacock, v. Eeynal (1612), 2 Brownlow and Goldesborough, 151. Plaintiff assaulted the defendant on the highway; the defendant met a con- stable and asked him to arrest the plaintiff. The constable refused to arrest the plaintiff unless he was charged with a felony. The defendant knowing full well that the plaintiff had committed a misdemeanour only, viz., the assault, charged him with felony, in order to get him locked up for the night. Held, i hat the charge of felony was malicious, as being made from an indirect and improper motive. Smith v. Hodgeskins (1633), Cro. Car. 276. A near relative may warn a lady not to marry a particular suitor, and assign his reasons for thus cautioning 1 e \ provided this be done from a conscientious desire for her welfare, and in" the bond fide belief that the charges made are true. Todd v. Hawkins, 2 M. & Rob. 20 ; 8 C. & P. 888. (278) MALICE IN LAW. 207 Per De Grey, C. J., in case cited 2 Smith, at p. 4. As to a mere friend. See Byam v. Collins, 39 Hun. (46 N. V. Sun. Ct.) 204 ; and per Hill. J., in ease referred to in L5 C 15. N. S. 410, 411 ; 83 L. .J. C P. 93 ; ante, p. 21!). But if a rival thus endeavoured to oust the plaintiff from the lady's affections, there would be evidence of malice to goto the jury- And see Adams v. Coleridge, 1 'I imes L. R. 84. It is usual for a former master to give the character of a servant on appli- cation, and not before. Hence if a master hears a discharged servant is apply- ing for a place at M.'s house, and writes at once to M. to 'jive the servant a bad character, the fact that the communication was uncalled for will be apt to tell against the master. M- would almost certainly have' applied to the defendant for the information sooner or later ; and the eagerness displayed in thus impart- ing it unasked will be commented on as a proof of malice, and if there be any other evidence of malice, however slight, may materially influence the verdict. But if there be no other evidence of malice, the communication is still privi- leged. Pattison v. Jones, 8 B. & C. 578; 3 M. & R. 101. Fowles v. Bowen, 3 Tiffany (30 X. Y. R.) 20 ; ante, p. 203. The defendant on being applied to' for the character of the plaintiff, who had been his saleswoman, charged her with theft. * He had never made such a charge against her till then ; he told her that he would say nothing about it, if she resumed her employment at his house ; subsequently he said that if she would acknowledge the theft he would give her a character. Held, that there was abundant evidence that the charge of theft was made mold fide, with the intention of compelling plaintiff to return to defendant's service Damages, £60- Jackson v. Happerton, 16 C B. N. S- 829 ; 12 W- R. 913 ; 10 L. T. 529. Rogers v. Clifton, 3 B. & P. 587- [* 27.1] The defendant made a charge of felony against his former shopman to his relatives during his absence in London, with a view of inducing them to compound the alleged felony, and not for the purpose of prosecution or inves- tigation. He actually received £50 from plaintiff's brother as hush-money. Held, that the charge of felony was altogether unprivileged. Hooper v. Truscott, 2 Bing. N. C. 457 ; 2 Scott, 672. A colonel was dismissed from his command in consequence of charges made by the defendant. A member of Parliament gave notice that he would ask a question in the House of Commons relative to this dismissal. Defendant thereupon called on the member, whom he knew, to explain matters. The conversation that ensued was held to be primd facie privileged ; but on proof that the Charges were made, not from a sense of duty, but from personal resent- ment on account of other matters, and that the object of the conversation was to prejudice the plaintiff by reason of such personal resentment — held, that there was actual malice, taking away the privilege. Dickson v. The Earl of Wilton, 1 F. & F. 419. A speech made by a member of Parliament in the House is absolutely privi- leged ; but if he subsequently causes his speech to be printed and published, with the malicious intention of injuring the plaintiff, he will be liable both civilly and criminally. R. v. Lord Abingdon, 1 Esp. 226. R. v. Creerey, 1 M. &. S. 273. The rector dismissed the parish schoolmaster for refusing to teach in the Sunday School. The schoolmaster opened another school on his own account in the parish. The rector published a pastoral letter warning all parishioners not to support "a schismatical school," and not to be partakers with the plaintiff "in his evil deeds," which tended "to produce disunion and schism," and " a spirit of opposition to authority." Held, that there was some evidence to go to the jury that the rector cherished anger and malice against the school- master. Gilpin v. Foicler, 9 Ex. 615 ; 23 L. J. Ex. 152 ; 18 Jur. 293. (279) 208 MALICE. I. Extrinsic evidence of malice. Malice may be proved by extrinsic evidence showing that the defendant bore a long-standing grudge against the plaintiff, that there were former disputes between them, that defendant had for- merly been in the plaintiff's employ and was dismissed for mis- conduct, or any previous quarrels, rivalry, or ill-feeling between plaintiff and defendant. Anything defendant has ever said or done with reference to the plaintiff may be urged as evidence of malice. Indeed, it is very difficult to say what possible evidence is inad- [* 276 J missible on this issue. The plaintiff has to show what was in the defendant's mind at the time of publication, and of that no doubt the defendant's acts and words on that occasion are the best evidence. But if plaintiff can prove that at any other time, before or after, defendant had any ill-feeling against him, that is some evidence that the ill-feeling existed also at the date of publication ; therefore, all defendant's acts and deeds that point to the existence of any such ill-feeling at any date, are evidence admissible for what 'they are worth. (Cooper v. Blackmore and others, 2 Times L. R. 746.) In fact, whenever the state of a person's mind on a particular occasion is in issue, everything that can throw any light on the state of his mind then is admissible, although it happened on some other occasion. (See JR. v. Francis, L. R. 2 C. C. R. 128 ; and Blake v. Albion Assurance Society, 4 C. P. D. 04 ; 48 L. J. C. R 109 ; 27 W. R. 321 ; 40 T. 211.) Thus any other words written or spoken by the defendant of the plaintiff, either before or after those sued 'on, or even after the commencement of the action, are admissible to show the animus of the defendant ; and for this purpose it makes no difference whether the" words tendered in evidence be themselves actionable or not, or whether they be addressed to the same party as the words sued on or to some one else. {Pearson v. Lemaitre, 5 M. & Gr. 700 ; 12 L. J. Q. B. 253 ; 7 Jur. 748 ; 6 Scott, N. R. 607 ; Mead v. Daubigny, Peakc, 168.) Such other words need not be connected with or refer to the libel or slander sued on ; provided they in any way tend to show malice in defendant's mind at the time of publication. (Barrett v. Long, 3 H. L. C. 395 ; 7 Ir. L. R. 439 ; 8 Ir. L. R. 331; Bolton v. O'Brien, 16 L. R. Ir. 97, 483.) And not only are such other words admissible in evidence, but also all circumstances attending their publication, the mode and extent of their repe- tition, &c. ; the more the evidence approaches proof of a sys- tematic practice of libelling or slandering the plaintiff, the more convincing it will be. ( Hond v. Douglas, 7 C. &. P. 626 ; [*277] Barret v. Long, 3 H. L. C. p. 414.) The jury no doubt should be told, whenever the other words so tendered in evidence are in themselves actionable, that they*must not give damages in respect of such other words, because they* might be the subject-matter of a sep- arate action (Pearson v. Lemaitre, supra ;) but the omission by the judge to give such a caution will not amount to a misdirection. Darby v. Ouseley, lH.&N.l; 25 L. J. Ex. 227 ; 2 Jur. N. S. 497.^ But the defendant is always at liberty to prove the truth of such other words so (280) EXTRINSIC EVIDENCE OF MALICE. 209 given in evidence ; for he could notpleada, justification as to them, as they were no set out on the record. {Stuart v. Lovell, 2 Stark 93 ; Warne v. Chadicell, 2 Stark. 457.) It must be remembered that this evidence of former or subsequent defamation is only admissible to determine quo animo the words sued on were published ; that is, they are only admissible when malice in fact is in issue. If there is no question of malice, no such oilier libels would be admissible, unless they had immediate reference to the libel sued on, or helped to explain or modify it, (Ante, p. 98 ; Mnnerty v. Tipper, 2 Camp. 72 ; Stuart v. Lovell, 2 Stark 93 ; Defries v. Davis, 7 C. & P. 1 12.) For such other libels are clearly independent substantive causes of action, and should not be used un- fairly to enhance the damages in this action. It has sometimes been held that even when malice is in issue other words could not be given in evidence if they themselves were actionable. (Pearce v. Ornsby, 1 M. & Rob. 455 ; St/mmons v. Blake, ib. 477 ; but these cases are expressly overruled, or explained away, by Tindal, C. J., in 5 M. & Gr. 719, 720. And see the remarks of Lord Ellenborough in Rustell v. Macquister, 1 Camp. 49, n. ; and of Jervis, C. J., in Cam- field v. Bird, 3 C. & Kir. 56.) And it is now clear law that when- ever the intention of the defendant is equivocal, that is, when- ever the question of malice or bond fides is properly about to be left to the jury, evidence of any previous or subsequent libel is admissi- ble, even though it be more than six years prior to the libel sued on ; and even though a former action has been brought for the libel now tendered in evidence and damages recovered therefor. (Sum- mons v. Blake, 1 M. & Rob. 477 ; Jackson v. Adams, 2 Scott, 599. See also Charlter v. Barrett, Peake, 32 ; Zee v. JTuson,Veake, 223. The law is the same in America : Fowles v. Bowen, 3 Tiffany (30 K Y. R. ) 20.) [*278] So if the defendant reasserts the libel in numbers of his periodical appearing after commencement of the action ( Ch%d>b v. Westlei/, 6 C. & P. 436) ; or in private letters written after action (Pearson v. Lemaitre, 5 M. & Gr. 700) ; (unless such letters be them- selves privileged, as in Whiteley v. Adams, 15 C. B. N. S. 392 ; 33 L. J. C. P. 89 ; 10 Jur. K S. 470 ; 12 W. R. 153 ; 9 L. T. 483) ; or if the defendant continues to sell copies of the libel at his shop up to two days before the trial (Plunhet v. Cobbet, 5 Esp. 136 ; Barvell v. Adkins, 2 Scott, N. R. ll\ 1 M. & Gr. 807 ); these facts are admis- sible as evidence of deliberate malice, though no damages can be given in respect of them. A plea of justification may be such a reas- sertion of the libel or slander. No doubt where the words are privi- leged, the mere fact that a plea of justification was put on_ the record is not of itself evidence of malice sufficient to go to the jury. ( Wilson v. Robinson, 7 Q. B. 68 ; Caulfield v. Wliitworth, 16 W. R. 936 ; 18 L. T. 527 ; Brooke v. Avrillon, \2 L. J. C. P. 126.) But if there be other circumstances suggesting malice, the plaintiff's counsel may also comment on the justification pleaded ; and, indeed, in special circumstances, as where the defendant at the trial will neither abandon the plea, nor give any evidence in support of it, thus ob- 14 lib. & slan. (281) 210 MALICE. etinately persisting in the charge to the very last without any suffi- cient reason, this alone may be sufficient evidence of malice. ( War- wick v.Fovlkes, L2 M. & W. 508 ; Simpson v. Robinson, 12 Q. B. 511 ; 18 L. J. Q. B.73.) The mere fact that the words are now proved or admitted to be false is no evidence of malice, unless evidence be also given by the plaintiff to show that the defendant knew they were false at the time of publication. {Fountain v. Boodle, 3Q. B. 5 ; Caulfield v . Whit- worth, 10 W. R. 9.36 ; 18 L. T. 527 ; Clark v. Molyneux (C. A.), 3 Q. B. D. 237 ; 47 L. J. Q. B. 230 ; 26 W. R. 104 ; 37 L. T. 694 ; 14 Cox, C. C. 10.) Day, J., must be mis-reported in Palmer v. Hummersion, 1 Cababe & Ellis, 36. The dictum of Lord Denman, C. J., in Blagg v. Sturt, 10 Q. B. 905 ; 16 L. J. Q. B. 42, is [*279] ex- pressly overruled or explained away by Williams, J., in Harris v. Thompson, 13 C. B. at p. 352. Illustrations. Where a master has given a servant a bad character, the circumstances under which they parted, any expressions of ill-will uttered by the muster then or sub- sequently," the fact that the master never complained of the plaintiff's misconduct whilst she was in his service, or when dismissing her would not specify the reason for her dismissal, and give her an opportunity of defending herself, together with the circumstances under which the character was given, and its exaggerated language, are each and all evidence of malice. Kelly v. Partington, 4B.& Adol. 700 ; 2 N. & M. 460. Jackson v. Hopperton, 16 C. B. N. S. 829 ; 12 W. II. 913 ; 10 L. T. 529 ; ante, p. 203. And in such a ease plaintiff is permitted to give general evidence of his or her good character, in order to show that the defendant must have known she did not deserve the bad character he was writing. Fountain v. Boodle, 3 Q. B. 5 ; 2 G. & D. 455. Rogers v. Sir Gervas Clifton, 3 B & P. 587 ; ante, p. 203. There had been a dispute between plaintiff and defendant prior to the slander about a sum of £20 which the plaintiff claimed from the defendant. At the trial, also, the plaintiff offered to accept an apology and a verdict for nominal damages if defendant would withdraw his plea of justification. The defendant refused to withdraw the plea, yet did not attempt to prove it. Held, ample evidence of malice. Damages £40. Simpson v. Robinson, 12 Q. B. 511 ; 18 L. J. Q. B. 73 ; 13 Jur. 187. Plaintiff brought an action against defendant, and applied for an injunction. Defendant applied at the same time for a receiver, which was refused. There- upon the defendant said that he would " make it d d hot for Dodson," and inserted in a newspaper he owned a report of the application, setting out all his own counsel had said against plaintiff's solvency, Sec., at full length, but omit- ting all mention of plaintiff's affidavit. Held, ample evidence of malice. Damages £2.10. Dodson v. Owen, 2 Times L. R. 111. Even though a report of judicial proceedings be correct and accurate, still if it be published from a malicious motive, whether by a newspaper reporter or any one else, the privilege is lost. Stevens v. Sampson, 5 Ex. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. R. 87 ; 41 L. T. 782. Plaintiff was town-clerk and clerk to the borough justices. Defendant said that he should feel great pleasure in ridding the borough of men like the plain- tiff. So he sent a petition, charging plaintiff with corruption in his office and praying for an inquiry, to an official who had no jurisdiction over the matter. Verdict for the plaintiff. Damages £100. Blagg v. Sturt, 10 Q. B. 899 ; 16 L. J. Q. B. 39 ; 11 Jur. 101 ; 8 L. T. (Old S.) 135. (282) EXTRINSIC EVIDENCE OF MALICE. 211 It is some evidence of malice that plaintiff and defendant are rivals in trade, [*280] or that tht'y competed together for some post, and plaintiff succeeded, and that then defendant, being disappointed, wrote the libel. Warman v. I line, 1 Jur. 820. Smith v. Mathews, 1 Moo. & Rob. 151. The defendant wrote a letter to be published in the newspaper. The careful editor si ruck out all the more outrageous passages, and published the remainder. The defendant's manuscript was admitted in evidence, and the obliterated pas sages read to the jury, to show the animus of the defendant. Tarpley v. Blaby, 2 Scott, 642; 2 Bing. N. C. 437; 1 Hodges, 414 : 7 C. & P. 395. A long practice by the defendant of libelling the plaintiff is cogent evidence of malice ; therefore other libels of various dates, some more than six years old, some published shortly before that sued on, are all admissible to show thai the publication of the culminating libel sued on was malicious and not inadvertent Barrett v. Long, 3 H. L. C. 895 ; 7 Ir. L. R. 439 ; 8 Ir. L. R. 331. A libel having appeared in a newspaper, subsequent articles in later numbers of the same newspaper, alluding to the action and affirming the truth of the prior libel, are admissible as evidence of malice. Chubb v. Westley, 6 C. & P. 436. Barwell v. Adkins, 1 M.'& Gr. 807 ; 2 Sc. N. R. 11. Mead v. DauMgny, Peake, 168. So, if there be subsequent insertions of substantially the same libel in other newspapers. DelegcU v. Highley, 8 C. & P. 444 : 5 Scott, 154 ; 3 Bing. N. C. 950 ; 3 Hodges, 158. So, if the defendant persists in repeating the slander or disseminating the libel pending action. In Pearson v. Lemaitre, 5 M. & Gr. 700 ; 6 Scott, N. R. 607 ; 12 L. J. Q. B. 253 ; 7 Jur. 748, a letter was admitted which had been written subsequently to the commencement of the action, and fourteen months after the libel complained of. In Macleod v. Wakley, 3 C. & P. 311, Lord Tenderten admitted a paragraph published only two clays before the trial. Defendant was director of a company of which plaintiff was auditor. Defendant made a charge against plaintiff in his absence at a meeting of the Board. At the next meeting of the Board plaintiff attended with his solicitor, having in the meantime written to defendant threatening an action. Defendant in consequence refused to make any charge or produce any evidence against the plaintiff in the presence of his solicitor. Held, no evidence of malice. Harris v. Thompson, 13 C. B. 333. Where the defendant verbally accused plaintiff of perjury, evidence that sub- sequently to the slander defendant preferred an indictment against the plaintiff for perjury, which was ignored by the grand jury, was received as evidence that the slander was deliberate and malicious, although it was a fit subject for an action for malicious prosecution. Tate v. Humphrey, 2 Camp. 73, n. And see Finden v. Westlake, Moo. & Malkin, 461. In an action for libel and slander on privileged occasions, the only evidence of malice was some vague abuse of the plaintiff, uttered by the defendant on the Saturday before the trial in a public-house at Rye. Such abuse had no reference to the slander or the libel or to the action. Held, that this evidence was [*281] admissible ; but that the judge should have called the attention of the jury to the vagueness of the defendant's remarks in the public-house, to the fact that they were uttered many months after the alleged slander and libel, and that therefore they were but very faint evidence that the defendant bore the plaintiff malice at the time of the publication of the alleged slander and libel. A new trial was ordered. Costs to abide the event. Hammings v. Gasson, E. B. & E. 346 ; 27 L. S. Q. B. 252 ; 4 Jur. N. S. 834. Defendant charged the plaintiff, his porter, with stealing his bed-sticks, and with plaintiff's permission subsequently searched his housed but found no stolen property. The jury found that the defendant bond fide believed that a robbery had been committed by the plaintiff, and made the charge with a view to inves- (283) 212 MALICE. tigation ; but added, " the defendant ought not to have said what he could not prove." Held, that this finding was immaterial, that the occasion was privi- [e'ged, and thai there was no evidence of malice. Judgment for the defendant. Howe v. Jones, 1 Times L. R. 19, 461. Fowler and wife v. Homer, 3 Camp. 294. II. Evidence of malice derived from the mode and extent of publication^ the terms employed, <&c. The plaintiff is not restricted to extrinsic evidence of malice ( Wright v. Woodgate, 2 C. M. & R. 573 ; 1 Tyr. & G. 12 ; 1 Gale, 329) ; he may rely on the words of the libel itself and the circum- stances attending its publication ; or in the case of slander upon the exaggerated language used, on the fact that third persons were pres- ent who were not concerned in the matter, &c. &c. The fact that the defendant was mistaken in the information he gave is, as we have seen, no evidence of malice : ante, p. 272. The jury must look at the circumstances as they presented themselves to the mind of the defendant at the time of the publication ; not at what are proved at the trial to have been the true facts of the case. It is a question of bona fides : Did the defendant honestly believe that he had a duty to perform in the matter, and act under a sense of that duty ? That other men would not have so acted is imma- terial. Tliat shrewder men would have seen through the tangled web of facts, and have discovered that things were not as they seemed, is [* 282] absolutely immaterial. The question is, Did the actual defendant honestly believe what he said ? not whether a reasonable man so placed would have believed it, (Per Brett, L. J., 3 Q. B. D. 248.) The defendant will not lose the privilege afforded by the occasion merely because his reasoning powers were defective. (Per Cotton, L. J., ib. 249.) "People believe unreason- able things bond fide," says O'Hagan, J., in Fitzgerald v. Campbell, 15 L. T. 75. Similarly, the fact that he relied upon hearsay evidence without seeking primary evidence is no evidence of malice. (Per Lord West- bury in Lister v. Ferryman, L. R. 4 II. L. 521 ; overruling (Exch. Ch.) L. R. 3 Exch. 197.) Men of business habitually act upon hear- say evidence in matters of the greatest importance. But this is supposing of course that the defendant is guilty of no laches, and does not wilfully shut his eyes to any source of information. If, indeed, there were means at hand for ascertaining the truth of the matter, of which the defendant neglects to avail himself, and chooses rather to remain in ignorance when he might have obtained full information, this wilfbe evidence of such wilful blindness as may amount to malice. But if defendant at the time of publication knew that what he said was false, this is clear evidence of malice. A man who know- ingly makes a false charge against his neighbour - cannot claim privilege. It can never be his duty to circulate lies. And if the statement was made wantonly, without the defendant's knowing or caring whether it was true or false, such recklessness is considered (284) EXPRESSIONS IN EXCESS. 2,13 as malicious as deliberate falsehood. (Clark x.Molyneux, 3 Q. B. D. 247 ; 47 L. J. Q. B. 230 ; 26 W. R. 104 ; 37 L. T. 004.) So if in writing or speaking on a privileged occasion the defend- ant breaks out into irrelevant charges against the plaintiff wholly unconnected with the occasion whence the privilege is derived, such excess will be evidence of malice ; or speaking more accurately, such irrelevant charges are wholly unprivileged, and no question of actual malice arises [* 283] as to them; unless defendant proves them true the verdict must go against him. (Huntley v. Ward, 6 C. B. N. S. 514 ; Jur. N. S. 18 ; Senior v. Medland, 4 Jur. N". 8. 1039 ; Picton v. Jackman, 4 C. & P. 257 ; Simmonds v. JJunne, Ir. R. 5 C. L. 358.) One part of a letter may be privileged ; other parts of the same unprivileged. ( Warren v. Warren, 1 C. M. & R. 251; 4 Tyr. 850 ; Jacob v. Lawrence, 4 L. R. Ir. 579.) And even though it is clear that the defendant believed in the truth of the communication he made, and was acting under a sense of duty on a privileged occasion, the plaintiff's counsel may still rely upon the words employed, and the manner and mode of publication, as evidence of malice. A man honestly indignant may often be led away into exaggerated or unwarrantable expressions ; or he may forget where and in whose presence he is speaking, or how and to whom his writing may be published. Clearly this is but faint evi- dence of actual malice ; the jury will generally pardon a slight ex- cess of righteous zeal. But in some cases (which we will proceed to examine) such excess has secured plaintiff the verdict. (i.) Where the expressions employed are exaggerated and uivwar- rantable ; but there is no other evidence of malice. " It is sometimes difficult to determine when defamatory words in a letter may be considered as by themselves affording evidence of malice." (Per Bramwell, L. J., 3 Q. B. D. 245.) But the test ap- pears to be this. Take the facts as they appeared to the defendant's mind at the time of publication ; are the terms used such as the defendant might have honestly and bond fide employed under the circumstances ? If so, the judge should stop the case. For if the defendant honestly believed the plaintiff's [*284] conduct to be such as he described it, the mere fact that he used strong words in describing it is no evidence of malice to go to the jury. (Spill v. Maule, Exch. Ch., L. R. 4 Exch. 232 ; W. R. 805 ; 20 L. T. 675 ; 38 L. J. Ex. 138.) But where the language used, though taken in connection Avith what was in defendant's mind at the time, is " much too violent for the occasion and circumstances to which it is applied," or " utterly beyond and disproportionate to the facts," or where improper mo- tives are unnecessarily imputed, there is evidence of malice to go to the jury. {Fryer v. Kinnersley, 15 C. B. N. S. 422 ; 33 L. J. C. P. 96 ; 12 W. R. 155 ; 9 L. T. 415 ; Gilpin v. Fowler, 9 Ex. 615 ; 23 L. J. Ex. 152 ; 18 Jur. 293.) For in such a case it maybe inferred that the defendant bore plaintiff a grudge, or had some sinister motive in writing as he did. (285) 214 MALICE. Such an inference will be readily drawn in cases where a rumour prejudicial to the plaintiff has reached the defendant, which he feels it his duty to report to those concerned, if in reporting it he does not state the rumour as it reached him, but gives exaggerated or highly coloured version of it. " Inimici famam non ita, ut nata est, ferunt." (Plant. Persa II. i. 23.) But in other cases the tendency of the Courts is not to submit the language of privileged communications to too strict a scrutiny. " To hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, that protection which the law- throws over privileged communications." (Per Sir Robert Collier, L. R. 4 P. C. 508.) "The particular expressions ought not to be too strictly scrutinized, provided the intention of the defendant was good." (Per Alderson. B., in Woodioard v. Zander, 6 C. & P. 550. And see Taylor v. Hawkins, 16 Q. B. 308 ; Rmakley v. Kiernan, 7 Ir. C. L. R. 75 ; B. v. Perry, 15 Cox, C. C. 169.) That the expressions are angry is not enough ; the jury must go [*285] further, and see that they are malicious. (Per Tindal, C. J., in Shipley v. Tod- hunter, 1 C. & P. 690.) Illustrations. Defendant changed his printer, and on a privileged occasion stated in writing, as his reason for so doing, that to continue to pay the charges made hy his former printer, the plaintiff, would be "to submit to what appears to have been an attempt to extort 'money by misrepresentation." Held, that these words, imputing improper motives to the plaintiff, were evidence of malice to go to the iury. Damages £50. Cooke v. Wildes, 5 E. & B. 328 ; 24 L. J. Q. B. 367 ; 1 Jur. N. S. 610 ; 3 C. L. R. 1090. O'Donoghve v. Htissey, Ir. R. 5 C. L. 124. Plaintiff sued defendant on a' bond ; defendant in public, but on a privileged occasion, denounced the plaintiff for attempting to extort money from him. Held, that the words were in excess of the occasion. Robertson v. M'Dougall, 4 Bing. 670 ; 1 M. & P. 692 ; 3 C. & P. 259. See Tuson v. Evans, 12 A. &E. 733 ; ante, p. 231. While the defendant was engaged in winding up the affairs of the plaintiff's firm, of which defendant was also a creditor, the plaintiff took from the cash-box a parcel of bills to the amount of £1,264. Thereupon the defendant wrote to another creditor of the firm that the conduct of the plaintiff " has been most disgraceful and dishonest ; and the result has been to diminish materially the available assets of the estate." Held, that the occasion was privileged, and that though the words were strong, they were, when taken in connection with the facts, such as might have been used honestly and bond fide by the defendant ; for the plaintiff's conduct was equivocal, and might well be supposed by the defendant to be such as he described it ; and that the judge was right in directing a verdict to be entered for the defendant, there being no other evidence of actual malice. Spill v. Maule (Exch. Ch.), L. R. 4 Ex. 232 ; 38 L. J. Ex. 138 ; 17 W. R. 805 ; 20 L. T. 675. The defendant tendered to Brown at Crickhowell two £1 notes on the plain- tiffs' bank, which Brown returned to him, saying there was a run upon that bank, and he would rather have gold. The defendant, the very next day.went into Brecon, and told two or three people confidentially that the plaintiffs' bank had stopped, and that nobody would take their bills. Held, that this exaggeration was some evidence of malice to go to the jury. Verdict for the defendant. Bromrige v. Prosser, 4 B. & Cr. 247 ; 6 D. & R. 296 ; 1 C. & P. 475. And see Senior v. Medland, 4 Jur. N. S. 1039. (286) UNDUE PUBLICITY. 215 A gentleman told the second master of a school that he had seen one of the under-masters of the school on oru occasion coming home al nighl "under the influence of drink," and desired him to acquaint the authorities with the fact. The second master subsequently stated to the governors thai it was notorious that the under-master came home " almost habitually in a state of intoxication." There was no other evidence of malice. Held, that Cockbum, C. J., was right in not withdrawing the case from the jury. Hume v. Marshall, Times for November 2Gth, 1877. [*28G] (ii.) As to the method of communication employed. If the mode and extent of a privileged publication be deliberately made more injurious to the plaintiff than necessary, tlii* is evidence of malice in the publisher. Confidential communications should not he shouted across the street for all the world to hear. ( Wilson v. Collins, 5 C. & P. 373.) Defamatory remarks, if written at all, should he sent in a private letter properly sealed and fastened up ; not written on a post-card, or sent by telegraph ; for two strangers at least read every telegram ; many more most post-cards. ( William- son v. Freer, L. R 9 C. P. 393 ; 43 L. J. C. P. 101 ; Whitfield v. S. K By. Co., E. B. & E. 115 ; Robinson v. Jones, 4 L. R. Ir. 391.) Letters as to the plaintiff's private affairs should not be published in the newspaper, however meritorious the writer's purpose may be : unless, indeed, there is no other way in which the writer can efficiently effect his purpose and discharge the duty which the law has cast upon him. But Avhere it is usual and obviously convenient to print such a communication as that complained of, before circu- lating it amongst the persons concerned, the privilege will not be lost merely because of the necessary publication to the compositors and journeymen printers employed in printing it. [Lawless v. Anglo- Egyptian Cotton aud Oil Co., L. R. 4 Q. B. 262.) So with an advertisement inserted in a newspaper defamatory of the plain- tiff ; if such advertisement be necessary to protect the defendant's interests, or if advertising was the only way of effecting the defendant's object, and such object is a legal one, then the circum- stances excuse the extensive publication. But if it was not necessary to advertise at all, or if the defendant's object could have been equally well effected by an advertisement which did not contain the words defamatory of the plaintiff, then the extent given to the an- nouncement is evidence of malice to go to the jury. [Br own v Cr<,ome, 2 Stark. 297 ; and Bay v. Batvson, 4 A. & E. 795 ; overruling, or at least explaining, Belany v. Jones, 4 Esp. 191.) The law is the same as to posting libellous placards {Cheese v. Scales, in M. & W. 488) ; or having a libellous notice cried by the town crier. ( Wood- ard v. Dowsing, 2 Man. & Ry. 74.) So with a privileged oral communication, it is important to observe who is present at the time it is made. A desire should be shown to avoid all unnecessary publicity. It is true that the acci- dental presence of an uninterested bystander will not alone take the case out of the privilege, and there are some communications which it is wise to make in the presence of witnesses ; but if it can , be proved that defendant purposely chose a time for making the (287) 210 MALICE. communication when others were by, whom lie knew would act upon it, this is evidence of malice. The distinction should lie observed between publications which are unprivileged, and circumstances showing malice which render a clearly privileged publication actionable. To deliberately give any unnecessary publicity to statements defamatory of another, raises at least a suspicion of malice. But if I accidentally or inadvert- ently communicate the statement to a person who is unconcerned in its subject-matter, having no formed intention or desire of de- faming the plaintiff to him, this is no evidence of malice ; though it may be that the publication to him is unprivileged ab initio. (Tompson v. Dashwood, 11 Q. B. D. 43 ; 52 L. J. Q. B. 425 ; 48 L. T. 943 ; 48 J. P. 55.) Again, if in writing or speaking on a priv- ileged occasion, the defendant breaks out into irrelevant charges against the plaintiff, wholly unconnected with the occasion whence the privilege is derived, such excess may perhaps be regarded as evidence of malice, making the relevant matter actionable ; but it is more accurate to say that such irrelevant charges are wholly un- privileged, and no question of actual malice arises as to them ; unless defendant proves them true, the verdict must go against him. {Huntley v. Ward, 6 C. B. N. S. 514 ; 6 Jur. K S. 18 ; ^Warren v. Warren, 1 C. M. & R. 251 ; 4 Tyr. 850.) So the fact that the defendant volunteered the information is no evidence of malice if it was his duty to volunteer it. But if the defendant's interference was officious and uncalled for, then his communication never was privileged, and no inquiry need be made as to [* 288] the existence of malice. Again, an uneducated, or even a well-educated, man may easily make a bond fide mistake as to the respective functions of various state officials. Such a mistake therefore is no evidence of malice. If in seeking redress for some grievance I invoke the aid of someone who has no possible duty or power to remedy the abuse complained of, the communication to him may or may not be wholly unprivileged (see ante, p. 227) ; but it is certainly not malicious, unless I purposely selected that individual in order to do the plaintiff the greater injury. Illustrations. The defendant, the tenant of a farm, required some repairs to be done at his house ; the landlord's agent sent up two workmen, one of whom was the plain- tiff. They made a bad job of it ; the plaintiff undoubtedly got drunk while on the premises ; and the defendant was convinced from what he heard that the plaintiff had broken open his cellar-door, and drunk his cider. Two days afterwards the defendant met the plaintiff and a mason called Taylor, and charged the plaintiff with breaking open the cellar-door, getting drunk, and spoiling the job. He repeated this charge later in the same day to Taylor alone in the absence of the plaintiff, and also to the landlord's agent. Held, that the communication to the landlord's agent was clearly privileged, as he was the plaintiff's employer ; that the statement made to the plaintiff in Taylor's pres- ence was also privileged, if made honestly and bond fide ; and that the circum- stance of ftn being made in the presence of a third person did not of itself make it unauthorized ; and that it was a question to be left to the jury to determine from the circumstances, including the style and character of the language used, (288) UNDUE PUBLICITY. 217 whether the defendant acted bond fide, or was influenced by malicious motives. But that the statement t<» Taylor, in the absence of the plaintiff, was unauthor- ized and officious, and therefore not protected, although made in the beliei oi its truth, if it were in point of fact false. Defendant had, in fact, repeated Hi'' charge once too often. Toogood v. Spyrmg, 1 Cr. M. & R. 181 ; 4 Tj r. 582. If libellous matter, winch would have been privileged ii sent in a scaled letter, be transmitted unnecessarily by telegraph, the privilege is thereby lost. Williamson v. Freer, L. R. "J C. P. 393 ; 43 l>. .J. C. P. 161 ; 22 W. R. 878 ; 30 L. T. 332. An Irish Court will take judicial notice of the nature of a post-card, and will presume that others besides the person to whom it is addressed will read what is written thereon. Robinson v. Jones, 4 L. R. Ir. 391. The defendant was a customer at the plaintiff's shop, and had occasion to complain of what he considered fraud and dishonesty in the plaintiff's conduct of his business ; but. instead of remonst rating quietly with him, the defendant stood outside the shop-door, and spoke so loud as to be heard by everyone passing down the street. The language he employed also was stronger than the [* 289] occasion warranted. Held, that there was evidence of malice to go to the jury. Damages 40s. Oddy v. Lord George Paulet, 4 F. & F. 1009. And see Wilson v. Collins, 5 C. & P. 373. That defendant caused the libel to be industriously circulated is evidence of malice. Gathercole v. Miall, 15 M. & W. 319 ; 15 L. J. Ex. 179 ; 10 Jur. 337. A shareholder in a railway company himself invited reporters for the press to attend a meeting" of the shareholders which he had summoned, and at which he made an attack upon one of the directors. Held, that the privilege was lost thereby. Peirsons v. Surgey, 4 F. & F. 247. And see Denis v. Outbush and others, 1 F. & F. 487. Defendant having lost certain bills of exchange, published a handbill, offering a reward for their recovery, and adding that he believed they had been em- bezzled by his clerk, His clerk at that time still attended regularly at his office. Held, that the concluding words of the handbill were quite unnecessary to defen- dant's object, and were a gratuitous libel on the plaintiff. Damages £200. Finden v. Westlake, Moo. & Malk. 461. Defendant accused the plaintiff, in the presence of a third person, of stealing his wife's brooch ; plaintiff wished to be searched ; defendant repeated the accusation to two women, who searched the plaintiff and found nothing. Sub- sequently, it was discovered that defendant's wife had left the brooch at a friend's 'house. Held, that the mere publication to the two women did not destroy the privilege attaching to charges, if made bond fide ; but that all the circumstances should have been left to the jury. Petdmore v. Lawrence, 11 A. & E. 280 ; 4 Jur. 458 ; 3 P. & D. 209. And see Amann v. Damm, 8 C. B. N. S. 597 ; 29 L. J. C. P. 313 ; 7 Jur. N. S. 47 ; 8 W. R. 470. The justices were about to swear in the plaintiff as a paid constable, when defendant, a parishioner, came forward and stated that the plaintiff was an im- proper person to be a constable. Held, that the fact that several other persons besides the justices were present, as usual, did not destroy the privilege attach- ing to such bond fide remark. Kershaw v. Bailey, 1 Ex. 743 ; 17 L. J. Ex 129. The fact that defendant's wife was present on a privileged occasion, and heard what her husband said, will not take away the privilege, so long as her presence, though unnecessary, was not improper. Jones v. Thomas. 34 W. R. 104 ; 53 L. T. 678 ; 50 J. P. 149. Where a master about to dismiss his servant for dishonesty calls in a friend to hear what passes, the presence of such third party will not destroy the privilege. Taylor v. Heiwkins, 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 74(5. Where a master discharged his footman and cook, and they asked him his (289) 218 MALICE. reason for doing so, and he told the footman, in the absence of the cook, that " he and the cook had been robbing him," and told the cook in the absence of the footman that Ik; had discharged her " because she and the footman had been robbing him." Held, that these were privileged communications as respected the absent parties, as well as those to whom they were respectively made. Manby v. Witt | 18 C. B. 544 ; 25 L. J. C. P. 294 ; 2 Jur. N. S. Eastmead v. Witt \ 1004. [*290] The defendant in a petition to the House of Commons charged the plaintiff with extortion and oppression in his office of vicar-g( neral to the Bishop of Lincoln. Copies of the petition were printed and delivered to the members of the committee appointed by the House to hear and examine grievances, in accordance with the usual order of proceeding in the House. No copy was delivered to any one not a member of Parliament. Held, that the petition was privileged, although the matter contained in it was false and scandalous ; and so were all the printed copies : for, though the printing was a publication to the printers and compositors, still it was the usual course of proceeding in Parlia- ment ; and it \» as not so great a publication as to have so many copies trans- scribed by several clerks. Lake v. King, 1 Lev. 240 : 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58. See Lawless v. Anglo-Egyptian Cotton and Oil Co., Limited, L. R. 4 Q. B. 262 ; 10 B. &S. 229 ; 38 L. J. Q. B. 129 ; 17 W. R. 498 ; ante, p. 246. (290) t*29i] CHAPTER X. DAMAGES. Damages are of two kinds : — (i.) General, (ii.) Special. General Damages are such as the law will presume to be the natural or probable consequences of the defendant's words ; they need not therefore be proved by evidence. Special Damages are such as the law will not infer from the nature of the words themselves ; they must therefore be especially claimed on the pleadings, and evidence of them must be given at the trial. Such damages depend upon the special circumstances of the case, upon the defendant's position, upon the conduct of third per- sons, &c, &c. Very probably they would not have been incurred, had the same words been spoken on another occasion, or to different hearers. In some cases special damage is also a necesaiy element in the cause of action. When on the face of them, the words used by the defendant clearly must have injured the plaintiff's reputation, they are said to be actionable per se ; and the plaintiff may recover a ver- dict for a substantial amount, without giving any evidence of actual pecuniary loss. But where the words are not on the face of them such as the courts will presume to be necessarily prejudicial to the plaintiff's reputation, their evidence must be given to show that in fact some appreciable injury has in this case [* 262] followed from their use, or the plaintiff will be nonsuited. The injury to the plain- tiff's reputation is the gist of the action ; he has to show that his character has suffered through the defendant's false assertions ; and where there is no presumption in plaintiff's favour, he can only show this by giving evidence of some special damage. It will be convenient to divide this chapter into the following heads : — I. — General Damages. II. — Special Damage, where the words are not actionable per se. III. — Special damage, where the words are actionable per se. IV. — Evidence for the plaintiff in aggravation of damages : — V. — Evidence for the defendant in mitigation of damages. (291) 220 DAMAGES. (i.) Evidence falling short of a justification, (ii.) Previous publication by others, (iii.) Liability of others, (iv.) Absence of malice. (v.) Plaintiff's bad charactei'. (vi.) Absence of special damage, (vii.) Apology and amends. VI. — Remoteness of damages. [*293] J. — General Damages. General Damages are such as the law will presume to be the natural or probable consequence of the defendant's conduct. They arise by inference of law ; and need not therefore be proved by evidence. Such damages may be recovered wherever the immediate tendency of the words is to impair the plaintiff's reputation, although no actual pecuniary loss has in fact resulted. Such general damages will only be presumed where the words are actionable per se. If any special damage has also been suffered, it should be set out on the pleadings ; but, should plaintiff fail in proving it at the trial, he may still of course resort to and recover general damages. ( Cook v. Field, 3 Esp. 133 ; Smith v. Thomas, 2 Bing. N. C. 372, 380 ; 2 Scott, 546; 4 Dowl. 333; 1 Hodges, 353 ; Brown Vj Smith, 13 C. B. 596; 22 L. J. G. P. 151 ; 17 Jur."807; 1 C. L. R. 4.) The jury should carefully consider the whole of the words com- plained of, and give the plaintiff such damages as in their opinion will fairly compensate him for the injury done to his reputation thereby. The amount of damages is " peculiarly the province of the jury." (Davis & Sons v. Shepstone, 11 App. Cas. at p. 191; 55 L. T. at p. 2.) They will of course be influenced by the circum- stances attending the publication, by the character of the defama- tory words, by their falseness, by the malice displayed by the defendant, or the provocation given by the plaintiff. They may also fairly take into their consideration the rank and position in society of the parties, the mode of publication selected, the extent and long continuance of the circulation given to the defamatory words, the tardiness or inadequacy, or entire absence, of any apology, the fact that the defendant could have easily ascer- [*294] tained that the charge he made was false, &c, &c. Where the words affect a trader in the way of his trade, figures may be laid before the jury, showing that his business has fallen off in conse- quence. (Harrison v. Pearce, 1 F. & F. 569 ; Evans v. Harries, 1 H. & N. 251 ; 26 L. J. Ex. 31 ; Ingram v. Laicson, 6 Bing. N". C. (292) GENERAL DAMAGES. 221 212; 8 Scott, 471 ; 4 Jur. 151; 9 ('. & P. 326; post, p. 308.) Even if no evidence be offered by the plaintiff as to damages, the jury arc in no way bound to give nominal damages only; they may read the libd and j^ive such substantial damages as will compensate the plaintiff for such defamation. (Tripp v. Thomas; 3 B. &. C. 427.) The damages which the jury award a plaintiff may be either, — ( i. ) contemptuous, ( ii. ) nominal, (iii.) substantial, or (iv.) vindictive. (i). Contemptuous damages are awarded when the jury consider that the action should never have been brought. The defendant may have just overstepped the line, but the plaintiff is also some- what to blame in the matter, or has rushed into litigation unneces- sarily; so he only recovers a farthing or a shilling. There is no necessary inconsistency in a jury finding that a libel was written mal- iciously and yet awarding only a farthing damages. (Cooke v. Brodgen & Co. 1 Times L. R. 497.) (ii.) Nominal damages are generally awarded on a compromise, where the plaintiff has not suffered any special damage and does not desire to put money into his pocket; he has cleared his character and is content to accept forty shillings and his costs. (iii.) Substantial damages are awarded where the jury seriously endeavour, as men of business, to arrive at a figure which will fairly compensate the plaintiff for the injury he has sustained. [*295] (iv.) Vindictive or retributory or exemplar}/ damages are awarded where the jury desire to mark their sense of the defend- ant's harsh and unfeeling conduct, by fining him to a certain ex- tent ; they therefore punish the defendant by awarding the plain- tiff damages in excess of the amount which would be adequate compensation for the injury inflicted on his reputation. Thus, in a recent case, where a letter was sent privately to one person only, on whom it made no impression, as she did not believe a word con- tained in it, the jury yet awarded £3,000, on the ground that " there must have been some vindictiveness." (Adams v. Coleridge, 1 Times L. R. at p. 87.) It is clearly competent to a jury to find vindictive damages in an action of libel or slander. ( Lord Towns- hend v. Hughes^ Mod. 150 ; Emblen v. Myers, 6 H. & 1ST. 54 ; 30 L. J. Ex. 71 ; Bell v. Midland Bail. Co., 10 C. B. N. S. 287 ; 30 L. J. C. P. 273 ; 9 W. R. 612 ; 4 L. T. 293.) " The damages in such an action are not limited to the amount of pecuniary loss which the plaintiff is able to prove." (Davis cb Sons v. Shepstone, 11 App. Cas. at p. 191 ; 55 L. J. C. 51 ; 34 W. R. 722 ; 55 L. T. at p. 2.) The jury must assess the damages once for all ( Gregory and another v. Williams, 1 C. &K.) 568; no fresh action can be brought for any subsequent damage (Fitter v. Veal, 12 Mod. 542 ; B. N. P. 7), except where the words are not actionable per se (post, p. 306). They should, therefore, take into their consideration not only the (293) 222 DAMAGES. damage that has accrued, but also such damage, if any, as will arise from the defamatory words in the future. {Lord Toionshend v. Hughes, 2 Mod. 150 ; Ingram, v. Lawson, 6 Bing. N. C. 212 ; 8 Scott, 471, 477 ; 4 Jur. 151 ; 9 C. & P. 326.) They should com- pensate the plaintiff for every loss which would naturally result from the words employed ; but not for merely problematical dam- ages that may possibly happen but probably will not. (Per T>e Grey, C. J., in Onsloio v. Home, 3 Wils. 188 ; 2 W. Bl. 753 ; and Bayley, B., in [*296] Lumby v. Alldaij, 1 C. & J. 305 ; 1 Tyr. 217 ; and see Doyley v. lioberts, 3 Bing. N. C. 835 ; 5 Scott, 40 ; 3 Hodges, 154 ; Barley Main Colliery Co. v. Mitchell, 11 App. Cas. 127 ; 55 L. J. Q. B. 539 ; 54 L. T. 882.) Where the Statute of Limitations is relied on as a defence, but proof is given that one copy has been sold by the defendant within the, last few months, the judge is not bound, it is said, to direct the jury to limit the damages to the injury which the plaintiff may be supposed to have incurred from that single publication, but they will take all the circumstances into their consideration. [Duke of Brunswick v. Harmer, 14 Q. B. 185 ; 19 L. J. Q. B. 20 ; 14 Jur. 110 ; 3 C. & K. 10.) The jury in assessing damages ought not to take into considera- tion the question of costs. That is a matter entirely for the judge (post, p. 365). Unless he interferes, a farthing will carry costs as much as '£1,000. (l Times L. R. 413.) It is for the jury to say, if they find for the plaintiff, to what extent he has been damaged, irrespective of the effect, if any, which their verdict may have on the subsequent action of the judge. (Per Bramwell, B., L. R. 1 Q. B. 691, 692.) The amount at which general damages are to be assessed lies almost entirely in the discretion of the jury ; the courts will never interfere with the verdict merely because the amount is excessive. A new trial will only be granted where the verdiGt is so large as to satisfy the court that it was perversely in excess or the result of some gross error on a matter of principle ; it must be shown that the jury either misconceived the case or acted under the influence of undue motives. So, again, where the damages awarded appear strangely small, a new trial will not be granted, unless it is clearly proved that the jury wholly omitted to take into their considera- tion some element of damage ; or unless the smallness of the amount shows that the jury made a compromise, and did not really try the issue submitted to them. (Fcdve>/ v. Stanford, L. R. 10 Q. B. 54 ; 44 L. J. Q. B. 7 ; 23 W R. 162 ; 31 L. T. 677 ; Kelly v. Sherlock, L. R. 1 Q. B. 686, 697 ; 35 L. J. Q. B. 209 ; 12 Jur. N. S. 937 ; Forsdike and wife v. [*297] Stone, L. R 3 C. P. 607 ; 37 L. J. C. P. 301 ; 16 W. R. 976 ; 18 L. T. 722.) But where the plaintiff is entitled to substantial damages, and the verdict in his favour cannot be impeached except on the ground that the dam- ages are excessive, the court has power to refuse a new trial, on the plaintiff alone, and without the defendant, consenting to the dam- ages being reduced to such an amount as the court would consider (294) SPECIAL DAMAGES. 223 not excessive, had thev been given by the jury. {B>U v. Lawea (C. A.), 12 Q. B. D. .'556 ; 53 L. J. Q. B. 249 ; 32 W. R. 607 ; 50 L. T. 441.) II. — Special Damage where the words are not actionable PER BE. Special Damage is such a loss as the law will not presume to have followed from the defendant's words, but which depends, in part at least, on the special circumstances of the case. It must therefore be proved by evidence at the trial ; and should always be explicitly claimed on the pleadings. In the vast majority of cases proof of special damage is not essential to the right of action. Thus it is not necessary to prove special damage — (i.) In any action of libel. (ii.) Whenever the words spoken impute to the plaintiff the com- mission of any indictable offence. (iii.) Or a contagious disease. (iv.) Or are spoken of him in the way of his profession or trade or disparage him in an office of public trust. Such words, from their natural and immediate tendency to pro- duce injury, the law adjudges to be defamatory, although no special loss or damage is, or can be, proved. Though even in these cases, if any special damage has in fact accrued, the plaintiff may of course prove it to aggravate the damages. But in all cases not included in any of the above four classes, proof of special damage is essential to the cause of [* 298] action ; for the words are not actionable per se. The words do not, appar- ently and upon the face of them, import such defamation as will of course be injurious ; it is necessary, therefore, that the plaintiff should aver and prove that some particular damage has in fact resulted from their use. Such damage, being essential to the action, must have accrued before action" brought, A mere apprehension of future loss cannot constitute special damage. " I know of no case where ever an action for words was grounded upon eventual dam- ages which may possibly happen to a man in a future situation," says De Grey, C. J., in Onslow v. Home, 3 Wils. 188 ; 2 W. Bl. 753. It must also be the natural, immediate, and legal conse- quence of the words which the defendant uttered. {See Remote- ness of Damages, post, pp. 325 — 336.) The special damage necessary to support an action for defamation, where the words are not actionable in themselves, must be the loss of some material temporal advantage. The loss of a marriage, of employment, of custom, of profits, and even of gratuitous enter- tainment and hospitality, will constitute special damage ; but not mere annoyance or loss of peace of mind, nor even physical illness occasioned by the defamatory charge. Such loss may be either the loss of some right or position already acquired, or the loss of some future benefit or advantage the acquisition of which is prevented. Thus, if the defendant causes a servant to lose his situation, or prevents his getting one, by (295) 224 DAMAGES. / maliciously giving a false character ; in either case an action will lie, though the words be not actionable per se. So if he prevent either a new comer from going to the plaintiff's shop, or an old customer from continuing to deal there, that will be sufficient special damage. But the plaintiff must always clearly prove that the loss is the direct result of defendant's words, and not the con- sequence of some independent act, some spontaneous resolve, of a third person. Illustrations. [*299] Anthony Elcock, citizen and mercer of London, of the substance and value of £3,000, sought Anne Davis in marriage ; but the defendant praunis- sorum hand ignarus, accused her of incontinency, wherefore the said Anthony wholly refused to marry the said Anne. Held, sufficient special damage. Verdict for the plaintiff for 200 marks. Davis v. Gardiner, 4 Rep. 16 ; 2 Salk. 294 ; 1 Roll. Abr. 38. Ilolwood v. Hopkins, Cro. Eliz. 787 ; post, p. 333. So if a man lose a marriage. Matthew v. Crass, Cro. Jac. 323. Nelson v. Staff, Cro. Jac. 422. In consequence of defendant slandering the plaintiff, a dissenting minister, his congregation diminished ; but this was held insufficient, as it did not appear that the plaintiff lost any emolument thereby. Hopwood v. Thorn, 19 L. J. C, P. 94 ; 8 C. B. 293 ; 14 Jur. 87. But see Hartley v. Herring, 8 T. R 130, post, p. 308. " If a divine is to be presented to a benefice, and one, to defeat him of it, says to the patron, ' that he is a heretic, or a bastard, or that he is excommuni- cated,' by which the patron refuses to present him (as he well might if the imputations were true), and he loses his preferment, he shall have his action on the case for those slanders tending to such end." Davis v. Gardiner, 4 Rep. 17. Loss of a situation will constitute special damage. Martin v. Strong, 5 A. & E. 535 ; 1 N. & P. 29 ; 2 H. & W. 336. Bumaey v. Webb et ux., 11 L. J. C. P. 129 ; Car. & M. 104. Or of a chaplaincy. Payne v. Beuwmorris, 1 Lev. 248. If, however, the dismissal from service be colourable only, the master intend- ing to take the plaintiff back again, as soon as the action is over, and having dismissed him solely in order that he might show special damage at the trial ; this is no evidence that the plaintiff's reputation has been impaired, but rather the contrary. If, therefore, no other special damage can be proved, the plaintiff should be nonsuited. Coward v. Wellington, 7 C. & P. 531. If a man be refused employment through defendant's slander, this is suffi- cient special damage. Sterry v. Foreman, 2 C. & P. 592. So, if a person who formerly had dealt with the plaintiff on credit refuses, in consequence of defendant's words, to deliver to the plaintiff certain goods he had ordered imtil plaintiff has paid for them. Brown v. Smith, 13 C. B. 596 ; 22 L. J. C. P. 151 ; 17 Jur. 807 ; 1 C. L. R. 4. King v. Watts, 8 C. & P. 614. So, if the agent of a certain firm going to deal with the plaintiff be stopped and dissuaded by the defendant, and this, although such firm subsequently became bankrupt, and paid but 12s. M. in the £, so that had plaintiff obtained the order he would have lost money by it. Storey v. Challands, 8 C. & P. 234. [*300] The loss of the hospitality of friends gratuitously afforded is sufficient special damage. Moore v. Meaglier, 1 Taunt. 39 ; 3 Smith, 135. (296) SPECIAL DAMAdlO. 225 Dome* and wife v. Solomon, L. R. 7 Q. B. 112 ; 41 L. J. Q. B. 10 ; 20 W. R. KIT; 25 L. T. 799. So is the loss of any gratuity or present, if it be dear that the slander alone prevented its receipt. Bracebridge v. Watson, Lilly, Entr. 61. Hartley v. Herring, 8 T. R. Kit*. In consequence of defendant's words, a friend who had previously voluntarily promised to give the plaintiff, a married woman, money to enable her to join her husband in Australia, whither he had immigrated three years before, refused to do so. Held, sufficient special damage. Corcoran and wife v. Corcoran, 7 Ir. C. L. R. 272. The defendant said of a married man that he had had two bastards: "by reason of which words discord arose between him and his wife, and they were likely to have been divorced." Held, that this constituted do special damage. Barmund'8 Case, Cro. Jac. 473. The plaintiff was a candidate for membership of the Reform Club, but upon a ballot of the members was not elected ; subsequently a meeting of the mem bers was called to consider an alteration of the rules regarding the election of members; before the day fixed for the meeting, the defendanl spoke certain words concerning the plaintiff which "induced or contributed to inducing a majority of the members of the club to retain the regulations under which the plaintiff had been rejected, and thereby prevented the plaintiff from again seek ins? to be elected to the club." Held, that the damage alleged was not pecuniary or capable of being estimated in money, and was not the natural and probable consequence of the defendant's words. Chamberlain v. Boyd (C. A.), 11 Q. B. D. 407 ; 52 L. J. Q. B. 277 ; 31 W. R. 572 ; 48 L. T. 328 ; 47 J. P. 372. So where the words are not actionable per se, and no pecuniary damage has followed, no compensation can be given for outraged feelings, nor for sickness induced by such mental distress, even though followed bv a doctor's bill. Allsop v. Allsop, 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 6 Jur. N. S. 433 ; 8 W. R. 449 ; 36 L. T. (Old S.) 290. Lynch v. Knight and wife, 9 H. L. C. 577 ; 8 Jur. N. S. 724 ; 5 "L. T. 291. Loss of the consortium of a husband is special damage. Per Lords Campbell and Cranworth in Lynch v. Knight and wife, 9 H. L. C. at p. 589. But not merely of the society of friends and neighbours. Medhurst v. Balam, cited in 1 Siderfin, 397. Barnes v. Prudlin or Bruddel, 1 Lev. 261 ; 1 Sid. 396 ; 1 Ventr. 4 ; 2 Keb. 451. Hence, even the fact that the plaintiff has been expelled from a religious society of which she was a member, will not constitute special damage. Eoberts et ux. v. Roberts, 5 B. & S. 384 ; 33 L. J. Q. B. 249 ; 10 Jur. N. S. 1027 ; 12 W. R. 909 ; 10 L. T. 602. Though there is an old case in which a vicar in open church falsely declared [*301] that the plaintiff, one of his parishioners, was excommunicated, and refused to celebrate divine service till the plaintiff departed out of the church, whereby the plaintiff was compelled to quit the church, and was scandalized, and was hindered of hearing divine service for a long time ; and it was held that an action lay. Barnabas v. Traunter (1641), 1 Vin. Abr. 396. This case was not cited to the Court in Roberts v. Roberts. The plaintiff in a recent case alleged that in consequence of defendant's words "she had suffered considerable annoyance, trouble, disgrace, loss of friends, credit and reputation." Held, that this was no special damage. Weldon v. Be Bathe, 33 W. R. 328 ; 14 Q. B. D. 339 ; 54 L. J. Q. B. 113 ; 53 L. T. 520. So in Ireland. Plaintiff alleged that she had been a novice in a convent, and left in order to nurse a sick relative ; defendant said of her that she had left her home because 15 LIB. & SLAN. (297) 226 DAMAGES. she was pregnant ; whereby the plaintiff alleged she was prevented from return- ing to the convent and becoming a nun, when she would have been maintained and supported by the society ; and had also been brought into disgrace among her neighbours and friends, and had been deprived of and ceased to receive their hospitality. Held, that no action lay, as the plaintiff was neither a nun nor a novice at" the time the words were spoken, and there was no evidence of special damage sufficient in law to maintain the action. JJtcyer v. Meehan, 18 L. li. Ir. 138. The law is the same in America. The refusal of civil entertainment at a public-house was held sufficient special damage. Olmsted v. Miller, 1 Wend. 506. So was the fact that the plaintiff was turned away from the house of her uncle, where she had previously been a welcome visitor, and charged not to return till she had cleared up her character. Williams v. Hill, 19 Wend. 305. So was the circumstance that persons who had been in the habit of so doing- refused any longer to provide food and clothing for the plaintiff. Beach v. lianny, 2 Hill (N. Y.), 309. The defendant told Neiper that the plaintiff committed adultery with Mrs. Fuller. Neiper had married Mrs. Fuller's sister, and was an intimate friend of the plaintiff's. Neiper thought it his duty to tell the plaintiff what people were saying of him. Plaintiff, who was hoeing at the time, turned pale, felt bad, flung down his hoe, and left the field ; lost his appetite, turned melancholy, could not work as he used to do, and had to hire more help. Held, that such mental distress and physical illness were not sufficient to constitute special damage ; for they did not result from any injury to the plaintiff's reputation, which had affected the conduct of others towards him. The Court said, in giving judgment, "It would be highly impolitic to hold all language, wounding the feelings and affecting unfavourably the health and ability to labour, of [*302] another, a ground of action : for that would be to make the right of action depend often upon whether the sensibilities of a person spoken of are easily excited or otherwise ; his strength of mind to disregard abusive insulting remarks concerning him, and his physical strength and ability to bear them. Words which would make hardly an impression on most persons, and would be thought by them, and should be by all, undeserving of notice, might be exceedingly painful to some, occasioning sickness and an interruption of ability to attend to their ordinary avocations." Terwilliger v. ' Wands, 3 Smith (17 N. Y. R), 54, overruling Bradt v. TowsUy, 13 Wend. 253, and Fuller v. Fenner, 16 Barb. 333. So, too, a husband cannot maintain an action for the loss of his wife's services caused by illness or mental depression resulting from defamatory words not actionable perse being spoken of her by the defendant, For the wife, if sole, could have maintained no action. " The facility with which a right to damages could be established by pretended illness where none exists, constitutes a serious objection to such an action as this." Per Denio, J., in Wilson v. Ooit, 3 Smith (17 N. Y. R.), 445. Special damage must always be explicitly claimed on the plead- ings and strictly proved at the trial. And where the words are not actionable per se, the plaintiff will be confined to the special damage laid ; he must either prove that, or be nonsuited ; as there are no general damages to which he can have recourse. And when the special damage is proved, the jury should strictly find a verdict for the amount of such special damage merely. They ought not to compensate the plaintiff for pain, mental anxiety, or a general loss of reputation, but should confine their assessment to the actual pecuniary loss that has been alleged and proved. (Dixon v. Smith, (298) SPECIAL DAMAGE. 227 5 H. &N. 450 ; 29 L. J. Ex. 125.) This rule, however, is frequently neglected in practice ; and as soon as any special is proved, the words are treated as though they were actionable per se. To allege generally that in consequence of the defendant's words the plaintiff has lost a large sum of money or that his practice or business has declined, is not a sufficiently precise allega- tion of special damage. The names of I he persons who have ceased to employ the plaintiff, or who would have commenced to deal with him, had not the defendant dissuaded them, must be set out in the statement of claim, or in the particulars ; and they must themselves [*303] be called as witnesses at the trial to state their reason for not dealing with the plaintiff. Else it will not be clear that their withholding their custom was in consequence of defendant's words; it might well be due to some other cause. (Per Lord Kenyon, ( '. J., in Ashley v. Harrison, 1 Esp. at p. 50 ; per J Jest, ('. J., in Tilk v. Parsons, 2 C. & P. 201.) If the plaintiff cannot give the names of those who have ceased to deal with him, or cannot prove that their so ceasing is due to the defendant's words, he must be non-suited ; although there has in fact been a falling off in his business. And here note the distinction between the loss of individual customers, and a general diminution in annual profits. Loss of custom is special damage, and must be specifically alleged, and the customers' names stated on the record ; if that be done, the con- sequent reduction in plaintiff's annual income can easily be reckoned. But if no names be given, it is impossible to connect the alleged diminution in the general profits of plaintiff's business with defend- ant's words ; it may be due to fluctuations in prices, to a change of management, to a new shop being opened in opposition, or to many other causes. Hence such an indefinite loss of business is considered general damage, and can only be proved where the words are spoken of the plaintiff in the way of his trade, and so are actionable per se. For there the law presumes that such words must injure the plaintiff's business ; and therefore attributes to those words the diminution it finds in plaintiff's profits. (Harrison v. Pearce, 1 F. 6 F. 567 ; 32 L. T. (Old S.) 298.) There is no hardship in this rule; and it should be strictly observed. The loss to the plaintiff must be directly connected with the defend- ant's utterance of the words. If others repeat his words, with or without additions of their own, the defendant is not liable for the consequences of what they say. And it is only by such repetitions that a general loss of business can be brought about. It is true that many traders, such as innkeepers, tobacconists, and others, seldom know the names of their customers, who are often chance passers-by. It might therefore be urged that such traders shoidd never be re- quired to state the names of particular customers, whether the words be actionable per se or not. This is the law in Victoria apparently. (See Brady v. Youlden, post, p. 300.) And in Riding v. Smith, 1 Ex. D. 91 ; 45 [*304] L. J. Ex. 2S1 ; 24 W. R. 487 ; *34 L. T. 500, Kelly, C. B., after stating with great clearness that " the words would not be actionable as slander without proof of special damage, (299) 228 DAMAGES. which must be established not merely by general evidence that the business has fallen off, but by showing that particular persons have ceased to deal with the plaintiff," — yet held that such evidence was properly received in the case before him, which he deemed an action on the case, and not an action of defamation. But it is clear that the Late Lord Chief Baron did not mean to lay down any general rule, and that Riding v. Smith is not to be regarded as an authority in actions of defamation, but merely as an exceptional case depending upon its own peculiar facte. In a very similar case, Kent v. Stone, Bristol Summer Assizes, 1880, Lord Coleridge, C. J., refused to fol- low Biding v. Smith on this point, as being contrary to all previous decisions. In Clark v. Morgan, 38 L. T. 354, Grove, J., points out the anomaly which would follow if the ride in Hiding v. Smith were universally carried out. The defendant has spoken to A. words which are not actionable per se ; i. e., words of such a char- acter that the law will not presume that they can injure the plaintiff. A. repeats them to B., B. to C, C. to D., and so on, until at last the plaintiff's business declines. If B., C, and D. were called, they would state that they never heard a word from the defendant on the matter ; and then it is clear law that the jury could only award the plaintiff damages for the loss of A.'s custom, A. being the one man to whom defendant spoke. {Dixon v. Smith, 5 II. & 1ST. 450 ; 29 L. J. Ex. 125 : Bateman and Wife v. Lyall and Wife, V C. B. N. S. 638 ; Hirst v. Goodwin, 3 F. & F. 257.) And yet, by merely keeping them out of the box, the plaintiff would (if Biding v. Smith be adopted as a general authority in cases of slander) illegally re- cover damages for the loss of the custom of B., C, D., E., and F. Lindley, J., in the same case (38 L. T. 355) expresses his opinion that the decisions in Ward v. Weeks and Parsons v. Scott have in no way been overruled by Biding v. Smith and Eoans v. Harris. As a rule, words which cause loss of custom - to a trader are spoken of him in the way of his trade, and are therefore actionable per se. And in other cases of special damage there is no difficulty ; for the plaintiff must know the names of the master who has dis- missed him, and of the friends who formerly showed him hos- pitality. Blustrations. The plaintiff alleged that in consequence of the defendant's slander, she had "lost several suitors." This was held too general an allegation ; for the names [* 305] of the suitors, if there were any, could hardly have escaped the plaintiff's memory. Barnes v. Prudlin, vel Bruddel, 1 Sid. 396 ; 1 Ventr. 4 ; 1 Lev. 261 ; 2 Keb. 451. See, also, Hunt v. Jones, Cro. Jac. 499. Dames and wife v. Solomon, L. R. 7 Q. B. 112 ; 41 L. J. Q. B. 10 ; 20 W. R. 167 ; 25 L. T. 799. The defendant slandered a dissenting minister, who averred that his congre- gation diminished in consequence. Held, too general an averment to constitute special damage, the names of the absentees not being given. Hopwood v. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. Such an averment would have been sufficient, had the words been spoken of the plaintiff in the way of his office, and so actionable per se. (300) SPECIAL DAMAGE. 229 Hartley v. Herring, 8 T. 11. 130. Eoamr. Harries, 1 J I. & N. 254 ; 20 L. J. Ex. 81. Dawes intended to employ the plaintiff, a surgeon and accoucheur, at his wife's approaching confinement; but the defendant told Dawes that, the plain- tiff's female servant had had a child by the plaintiff: Dawes consequently decided not to employ the plaintiff: Dawes told his mother and his wife's sister what defendant had said; and consequently the plaintiff's practice fell oil' eon siderablv among Dawes' friends and acquaintances and others. The fee for ■ confinement was a guinea. Held, that the plaintiff was entitled to more than the one guinea ; the jury shouldgive him such a sum as they considered Dawes' custom was worth to' him ; hut that the plaintiff clearly could not recover anj thing for the general decline of his business, which was caused by the gossip of Dawes' mother and sister-in-law. Dixon v. Smith, 5 II. & N. 450 ; 29 L. J. Ex. 125. The law is the same in America. The plaintiff alleged that the defendant's words had "injured her in her good name, and caused her relatives and friends to slight and shun her." This was held to disclose no special damage. Bassell v. Elmore, 48 N. Y. II. 563 ; 65 Barb. 627. Oeisler v. Brown, 6 Neb. 254. So when; the allegation was merely that by reason of defendant's words "the plaintiff had been slighted, neglected, and misused by the neighbours and her former associates and turned out of doors. " Pettibone v. Simpson, 66 Barb. 492. A general allegation that by reason of defendant's acts, plaintiff had been compelled to pay a large sum o*f money, without showing how, was held insuf- ficient. Cook v. Cook, 100 Mass. 194. Pollard v. Lyon, 1 Otto (91 U. S.), 225. But in Australia a different rule apparently prevails. To say to the keeper of a restaurant, " You are an infernal rogue and swin- dler," [* 306] was held, in the Supreme Court of Victoria, not actionable without proof of special damage, as not affecting plaintiff in his trade. But the plaintiff having alleged that, by reason of the words, people who used to frequent his restaurant ceased to deal with him, it was held the special damage made the words actionable, and that the special damage was sufficiently alleged ; that the cases of frequenters of theatres, members of congregations, and travelers using an inn, were exceptions to the rule requiring the names of the customers lost to be set forth. . Brady v. Youlden, Kerferd & Box's Digest of Victoria Cases, 709 ; Melbourne Argus Reports, 6 Sept. 1867, sed qtiCBre. Where the words are not actionable without special damage, the jury, as we have seen, must confine their consideration to such spe- cial damage as is specially alleged and proved. It may, therefore, very well be argued that if any fresh damage followed in the future, that would constitute a fresh ground of action. And of this opin- ion was North, C. J., in Lord Townshend vs. Hughes, 2 Mod. 150. But Buller, in his "Nisi Prius," p. 7, lays it down most distinctly, that where a plaintiff " lias once recovered damages, he cannot after bring an action for any other special damage, whether the words be in themselves actionable or not." And Lord Holt is certainly reported as saying so obiter in Fitter v. Veal, 12 Mod. 542 ; not in the other reports, 1 Ld. Raym. 339, 692 ; 1 Salk. 11. The matter was much discussed in Darley Main Colliery Co. v. Mitchell, 11 (301) 230 DAMAGES. App. Cas. 12V ; 55 L. J. Q. B. 529 ; 54 L. T. 882, and Lord Black- burn unfortunately differed from Lord Bramwell (11 App. Cas. pp. 143, 145). I think, however, after the decision in that case, the better opinion is that a second action will lie for fresh special damage. III. — Special Damage where the words are actionable per se. Where special damage is not essential to the action, it may still of course be proved at the trial to aggravate the damages, if it has been properly pleaded. The same particularity is required whether the words be actionable per se or not. So, too, plaintiff must still prove that the special damage alleged is the direct result of the defendant's words, and not of any repetition of them by others. (Tunnicliffe v. Moss, 3 C. & K. 83 ; Hirst v. Goodwin, 3 F. & F. 257.) But in other respects the law is not quite [* 307[ so strict as to what constitutes special damage in the first case as in the second. Thus, where the words are not actionable per se, we have seen that mental distress, illness, expulsion from a religious society, &c, do not constitute special damage. But where the words are action- able per se, the jury may take such matters into their consideration in according damages. " Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act com- plained of causes that alone ; though where a material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested." (Per Lord Wensleydale, in Lynch v. Knight and wife, 9 H. L. C. 598. See also Haythorn v. Lawson, 3 C. & P. 190 ; Le Fame v. Malcolmson, 8 Ir. L. R. 418.) And had the charge against Mrs. Roberts been one of felony, I do not think any judge would have excluded the evidence as to her expulsion from her religious sect. _ Again, where words are spoken of the plaintiff in the way of his profession or trade so as to be actionable per se, the plaintiff may allege and prove a general diminution of profits or decline of trade, without naming particular customers or proving why they have ceased to deal with him. (Ingram v. Lawson, Bing. N. C. 212 ; 8 Scott, 471 ; 4 Jur. 151 ; 9 C. & P. 320 ; Harrison v. Pearce, 1 F. & F. 509 ; 32 L. T. (Old S.) 298 ; and per Cresswell, J., in Rose v. Groves, 5 M. & Gr. 018, 61*9.) In Delegal v. Highley, 8 C. & P. 448, it is true, Tindal, C. J., refused to allow any evidence to be given of general loss of business, on the ground that the law already presumed such loss in the plaintiff's favour ; but this decision must now be considered overruled. Of course, if the plaintiff de- sires to go into such details at the trial, he may plead them specially and call the customers named as witnesses. Still if the customers are not called at the trial, or if for any other reason the proof of the special damage fails, the plaintiff [* 308] may still fall back on the general damage and prove a loss of income induced by the slander. ( Cook v. Meld, 3 Esp. 133 ; Evans v. Harries, 1 II. & K 251 ;_ 26 L. J. Ex. 31.) This he cannot do when the Avords are not action- able per se ; see ante. p. 303. But where the law already presumes (302) EVIDENCE IN AGGRAVATION. 231 that the plaintiff is injured in his business, so that the jury must give him some damages, evidence as to the nature and extent of plaintiff's business before and after publication is clearly admissible to enable the jury to fix the amount. Lastly, where it is clear that the action lies without proof of any special damage, any loss or injury which the plaintiff has sustained in consequence of defendant's words, even after action brought, may be proved to support the legal presumption, and to show from what has actually occurred how injurious and mischievous t hose- words were. Illustrations. Where the defendant advertised in Hue and Cry that the plaintiff had been guilty of fraud, and offered a reward for his apprehension, and the plaintiff immediately sued on the libel, and after action broughl was twice arrested in consequence of it : he was allowed to give evidence of these two arrests at the trial, not indeed as special damage, for they happened alter action brought, but in order to show the injurious nature of the libel, and that the plaintiff was at time of action brought in serious danger of being arrested. Goslin v. Carry, 7 M. & Gr. 342 ; 8 Scott, N. R. 21. Where the defendant published in a newspaper that a certain ship of the plaintiff's was unseaworthy, and had been purchased by the Jews to carry convicts, evidence as to the average profits of a voyage was admitted, and also evidence that upon the lirst voyage after the libel appeared the profits were nearly £1,500 below the average, and this although the action was brought immediately after the libel appeared, and before the last-mentioned voyage was commenced. The jury, however, awarded the plaintiff only £900 damages. Ingram v. La/wson, 6 Bing. N. C. 212 ; 8 Scott, 471. Where a declaration alleged that the defendant spoke words of the plaintiff, a dissenting minister, in the way of his office and profession, and bis congregation rapidly diminished, and he was compelled for a time to give up preaching altogether, and lost profits thereby ; it was held that this was a sufficient allegation of special damage, although the members of his congregation were not named. Hartley v. Herring, 8 T. R. 130. Hapwood v. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. [* 309] Where words actionable per se are spoken of an innkeeper in the way of his trade, evidence may be given of a general loss of custom and decline in his business. Evans v. Harries, 1 H. & N. 251 ; 26 L. J. Ex. 31. " Suppose a biscuit baker in Regent Street is slandered by a man saving bis biscuits are poisoned, and in consequence no one enters his shop, He cannot complain of the loss of any particular customers, for he does not know them, and how hard and unjust it would be if he could not prove the fact of the loss under a general allegation of loss of custom." Per Martin, B., in Emus v. Harries, 26 L. J. Ex. 32. And see Weiss v. WMttemore, 38 Michigan, 366. But where defendant charged plaintiff with larceny, and the words were repeated by H. to Carpmole, who in consequence refused to employ plaintiff, evidence of such special damage was rejected. Tunnicliffe v. Moss, 3 C. & K. 83. Rutherford v. Evans, 4 C. & P. 74. Hirst v. Goodwin, 3 F. & F. 257. IV. — Evidence for the Plaintiff in Aggravation of Damages. The violence of the defendant's language, the nature of the impu- tation conveyed, and the fact that the defamation was deliberate (303) 232 DAMAGES. and malicious, will of course enhance the damages. All the circum- stances attending the publication may therefore be given in evi- dence, and any previous transactions between the plaintiff and the defendant which have any direct hearing on the subject-matter of the action, or are a necessary part of the history of the case. The jury will also consider the rank or position in society of the parties, the fact that the attack was entirely unprovoked, that the defend- ant could easily have ascertained that the charge he made was false, &c. So evidence may be given to show that the defendant was culpably reckless or grossly negligent in the mattei\ The attention of the jury should especially be directed to the mode, the extent, and the long continuance of publication. Such evidence is admissible with a view to damages, although the publication has been admitted on the pleadings. ( Vines v. iSerell, 7 C. & P. 163.) So defendant's subsequent conduct may aggravate the [* 310] dam- ages ; e.g., if he has refused to listen to any explanation, or to re- tract the charge he made, or has only tardily published an inade- quate apology. It must not be assumed, however, that every piece of evidence which is admissible to prove malice when malice is in issue (see c. IX.), is also admissible in aggravation of damages. Thus evidence may be given of antecedent or subsequent libels or slanders to show that a communication primd facie privileged was made maliciously (c. IX., p. '276) ; and also when evidence is necessary to explain the meaning of language which without it appears ambiguous (c. III., p. 113). But such evidence may not be given where the existence of malice is undisputed, and the words of the libel are clear. (Stuart v. Lovell, 2 Stark. 93 ; Pearce v. Ornsby, 1 M. & Rob. 455 ; jSi/mmons v. Blake, ib. 477 ; 2 C. M. & R. 416 ; 4 Dowl. 263 ; 1 dale, 182.) And when such evidence is admissible, the jury should always be cautioned to give no damages in respect of it. (Per Tindal, C. J., in Pearson v. Lemaitre, 5 M. & Gr. 719 ; 12 L. J. Q. B. 253 ; 6 Scott, K R 607 ; 7 Jur. 748.; 7 J. P. 336.) It is only when a subsequent libel has immediate reference to the one sued on, that it will be admitted as a necessary part of the res yestm. (Fin- nerty v. Tipper, 2 Camp. 72 ; May v. Brown, 3 B. & Cr. 113 ; 4 D. & R. 670.) The plaintiff cannot give evidence of general good character in aggravation of damages merely, unless such character is put in issue on the pleadings ; or has been attacked by the cross-examination of the plaintiff's witnesses ; for till then the plaintiff's character is presumed good. ( Cornwall v. Richardson, Ry. & M. 305 ; Guy v. Gregory, 9 C. & P. 584, 587 ; Brine v. Bazalgette, 3 Ex. 692 ; 18 L. J. Ex. 348.) But such evidence is admissible under special cir- cumstances to show that the libel was false to the knowledge of the defendant, and must therefore have been written maliciously. (Fountain v. Boodle, 3 Q. B. 5 ; 2 G. & D. 455, post, p. 569.) [*311] In all these cases the malice proved must be that of the defendant. If two be sued, the motive of one must not be allowed to aggravate the damages against the other. ( Clark v. JVewsam, 1 Ex. 131, 139.) Nor should the improper motive of an agent be (304) EVIDENCE IX AGGRAVATION". 233 matter of aggravation against his principal. (Carmichael v. Water ford 13 ; Robertson v. Wylde, 2 Moo. & Rob. 101.) So in America. (Scripps v. Iieilhj, 38 Mich. 10; Detroit v. Mt Arthur, 16 Midi. 447. Illustrations. If the libel has appeared in a newspaper, proof that th<' particular number containing the libel was gratuitously circulated in the plaintiff's neighborhood, or that its sale was in any way especially pushed, will enhance the damages. Gath&rcole v.Miall, 15 M. & W. 819 ; 15 L. J. Ex. 17'J ; 10 Jur. 337. If the libel was sold to the public, indiscriminately, heavy damages should be given, for the defendant has put it out of his power to recall or contradict his statements, should he desire to do so. Per Lord Denman, 9 A. & E. at p. 149. Per Best, C. J., 5 Bing. at p. 402. And where there is no malice, gross negligence on the part of the proprietor of a newspaper in allowing the libel to appear in its columns, may be proved to enhance the damages. Smith v. Harrison, 1 F. & F. 565. If other words, injurious and abusive, though not actionable per se, were uttered on the same occasion as the words complained of, these other words may be given in evidence as an aggravation of the actionable words. " Where a wrongful act is accompanied by words of contumely and abuse, the jury are warranted in taking that into consideration, and giving retributory dam- ages. Per Byles, J., in Bell v. Midland Rail Co., 10 C. B. N. S. at p. 308. And see Dodson v. Oieen, 4 Times L. R. ante, p. 262. Blagg v. Sturt, 10 Q. B. 899 ; 16 L. J. Q. B. 39 ; 11 Jur. 101 ; 8L. T. (Old S.) 135. Merest v. Harvey, 5 Taunt. 432, ante, p. 615. The defendant's conduct of his case, even the language used by his counsel at the trial may aggravate the darnages. Per Pollock, C. B., Darby v. Ouselei/, 25 L. J., Ex. 230, 233. Blake v. Stevens and others, 4 F. & F. 235 -, 11 L. T. 543. Risk Allah Bey v. Whitehurst, 18 L. T. 615. So a plea of justification, if persisted in, but not proved, will enhance the damages. Warwick v. Foulks, 12 M. & W. 508. Wilson v. Robinson, 7 Q. B. 68 ; 14 L. J. Q. B. 196 ; 9 Jur. 726. Simpson v. Robinson, 12 Q. B. 511 ; 18 L. J. Q. B. 73 ; 13 Jur. 187. [*3ii] y — Evidence for the Defendant in Mitigation of Damages. (i.) Evidence falling short of a justification. The defendant may also urge upon the jury any material cir- cumstance which he thinks will tend to mitigate the damages against him. But this is of course subject to the general rule that circum- stances, which, if pleaded, would have been a bar to the action, can- not be given in evidence in mitigation of damages, (fyeck v. Phillips^h M. & W. 279 ; 8 L. J. Ex. 277 ; 7 Dowl. 470.) Evi- dence of the truth of the slander or libel is therefore inadmissible, (305) 234 DAMAGES. unless a justification is pleaded. ( Underwood v. Parks, 2 Strange, 1200 ; Smith v. Richardson, Willes, -JO.) And where the words are capable of two meanings, one innocent, the other harmful, no evidence can be given in mitigation of damages that in the innocent sense the words are literally true without an express plea to that effect. {Rumseij v. Webb et ux., Car. & M. 104 ; 11 L. J. C. P. 129.) A fortiori, evidence that there was a wide-spread report or rumour to the same effect as the words complained of is inadmissible ; for it clearly falls short of a justification, and is moreover objectionable as hearsav. {Scott v. Sampson, 8 Q. B. D. 491 ; 51 L. J. Q. B. 380 ; 30 W. R. 541 ; 46 L. T. 412 ; 46 J. P. 408.) But a defend- ant may, if he place a proper plea on the record, give evidence in mitigation of damages that a certain specified portion of the defam- atory words is true, provided such portion conveys a distinct impu- tation on the plaintiff and is divisible from the rest and yet intelli- gible bv itself. (WGregor v. Gregory, 1 1 M. & W. 287; 12 L. J. Ex. 204 ; 2 Dowl. K S. 769 ; Lord Churchill v. Hunt, 2 B. & Aid. 685 ; 1 Chit. 480 ; Clarke v. Taylor and another, 2 Bing. N.C. 654 ; 3 Scott, 95 ; 2 Hodges, 65.) But the plea must cleaidy specify the precise portions justified. (Stiles v. JVokes, 7 [*313] East, 493.) And without a special plea, evidence that part of the libel is true cannot be received. ( Vessey v. Pike, 3 C. & P. 512.) (ii.) Previous publications by others. Evidence of previous publications by others is clearly inadmis- sible even in mitigation of damages; that others besides the defend- ant have defamed the plaintiff is a wholly irrelevant fact. ( Tucker, v. Laioson, 2 Times L. R. 593.) And so is the fact that on such former occasions the plaintiff did not sue the publisher or take any steps to contradict the charges made against him. (P. v. Newman, 1 E. & B. 268; 21 L. J. Q. B. 156; 3 C. & K. 252; P. v. Holt, 5 T. R. 436; Ingram v. Lawson, 9 C. & P. 333; Pankhurst v. Hamilton, 2 Times L. R. 682.) And even when the falsehood thus unchallenged grows to a persistent rumour or general report, which the defendant hears, believes, and repeats; this is not regarded inlaw as a mitigat- ing circumstance. Evidence of any such rumour is altogether inad- missible. (Scott v. Sampson, 8 Q. B. D. 491; 51 L. J. Q. B. 380; 30 W. R. 541; 46 L. T. 412; 46 J. P. 408.) There is one exception: if defendant in repeating the story as it reached him gives it as hearsay, and states the source of his infor- mation, then, but only then, is the fact that he did not originate the falsehood, but innocently repeated it, allowed to tell in his favour, as proving that he bore the plaintiff no malice. Thus, where it appears on the face of a libel that it is founded on a state- ment in a certain newspaper, the defendant is entitled to show that he did in fact read such statement in the newspaper and wrote the libel believing such statement to be true. (P. v. Purdett, 4 B. & Aid. 95 ; Mullett v. Hulton, 4 Esp. 248 ; Hint v. Algar, 6 C. & P. 245.) So, if the defendant has named A. as his informant, he may prove in miti- gation that he did in fact receive such information from A., though (300) EVIDENCE IN MITIGATION. 235 of course this is no defence to the action ; [*314] (ante, p. 162.) (Be)tnett v. Bennett, 6 C. & P. 588; Mills and wife v. Spencer and wile (1817), Holt, N. P. 533; East v. Chapman, M. & M. t6; 2 C. & P. 570; Buncombe v. Baniell, 2 Jur. 32; 8 ('. & P. 222; 1 W. W. & II. 101; cited 7 Dowl. 472; Davis v. Cutbush and others, l F. & F. 487.) But where the libel does not, on the face of it, pur- port to be derived from any one, but is stated as of the writer's own knowledge, there evidence is wholly inadmissible to show that it was copiedfrom a newspaper or communicated by a correspond- ent, ('talbvtt v. Clark and another,2Moo. & Rob. 312.) But still if the defendant can show that in copying the libel from another newspaper, he was careful to omit certain passages which reflected strongly on the plaintiff, his conduct in making such omissions is admissible as showing the absence of all animus against the plaintiff, and this necessarily involves the admissibility of the original libel copied. (Creevy v. Carr, 7 C. & P. 64; Creightcm v. Finlay, Arm. Mac. & Ogle (Ir.) 385.) And see Be Bensaude v. Conservative Newspaper Co., 3 Times L. R. 538. Illustrations. Mrs. Evans told Mrs. Spencer that she was going to Mrs. Mills' house to learn dressmaking ; Mrs. Spencer thereupon told Mrs. Evansa few things about Mrs. Mills, which she said Mrs. Lewis and Mrs. Sayer had told her. Gibbs, C. J.. would have admitted evidence apparently that these ladies had, in fact, told Mrs. Spencer what she told Mrs. Evans : but it turned out it was somebody else who had said so, and not the two ladies whom she named as her authorities. Evidence of what was said by these third persons, who were not named by Mrs. Spencer when she uttered the words complained of, was excluded. Mills and wife v. Spencer and wife. Holt, N. P. 533. On the day of the nomination of candidates for the representation of the borough of Finsbury, the defendant published in the Morning Post certain facts discreditable to one of the candidates, the plaintiff, which he alleged he had heard from one Wilkinson at a meeting of the electors. Held, that Wilkinson was an admissible witness to prove, in mitigation of damages, that he did, in fact, make the statement which the defendant had published at the time and place alleged. Buncombe v. Baniell, 2 Jur. 32; 8 C. & P. 222; 1 W. W. & H. 101. The Observer published an inaccurate report of the trial of action brought against the plaintiff. Defendant copied this report verbatim into his paper. [*315] Held, that evidence that many other papers beside the defendant's had also copied the statement from the Observer was inadmissible. Saunders v. Mills, 6 Bing. 213 ; 3 M. & P. 520. Tucker v. Lawson, 2 Times L. R. 593. Evidence that defendant had copied it from the Observer into his own paper had been admitted apparently without question at the trial ; but in allowing that evidence, Tindal, C. J., says (6 Bing. 220) : " It appeared to me I had gone the full length." In Talbuttv. Clark (2 Moo. & Rob. 312), Lord Denman says, referrins;, no doubt, to Saunders v. Mills: "I know that in a case in the Common Pleas it has been held that a previous statement in another newspaper is admissible ; but even that decision had been very much questioned." One officer charged another with stealing ;v watch ; a third officer in the same regiment was called to state that he had "previously heard rumours that the plaintiff had stolen that watch, but his evidence was rejected ; and the Court held that such rejection was right (Pigot, C. B., dissenting). Bell v. Parke (1860), 11 Ir. C. L. R. 413. Kelly, C. B. is reported to have aiven a similar riding in Bobede v. Fisher, Times for July 29th, 1880. It is now clearly settled that evidence of such rumours is inadmissible. (307) 236 DAMAGES. Scott v. Sampson, 8 Q. B. D. 491 ; 51 L. J. Q. B. 380 ; 30 W. R. 541 ; 46 L. T. 412 ; 46 J. P. 408. Wilson v. mtch, 41 Cal. 363. But where a libel on the plaintiff, who was Surveyor-General of Upper Canada, was contained in a pamphlet which was not generally circulated, copies being senl only to the principal civil officers of the province, one of whom was called as a witness by the plaintiff, Gibbs, C. J., allowed defendant's counsel to ask the witness, whether, previous to the delivery of this pamphlet, he did not read, in a public newspaper, the substance of the libel charged in the declaration. Such cross-examination appears to be still permissible in mitigation of damages ; as showing that it was the former publication in the newspaper, and not the subsequent publication of the pamphlet which injured plaintiff's reputation ; and see post, p. 327 ; although the pamphlet did not profess to be founded on the newspaper. Wyatt v. Gore, Holt, N. P. 299, 304. (iii.) Liability of others. If the present defendant is liable, the fact that some one else is also liable is immaterial. It will not diminish the amount recover- able from the present defendant, to show that the plaintiff has recovered, or might recover, other damage from others. For each defendant in his turn pays damages for the injury which he himself has occasioned, not for the injury done by others. Thus, in cases of slander, the defendant is only liable for such [*316] damages as result directly from his own utterance. If defend- ant chooses to repeat what another has said, that is his own conscious and voluntary act, for the results of which he alone is responsible. So defendant is not liable for the consequences of any repetition of his words by others. (See post, p. 331.) So if two newspapers have made each a distinct charge against the plaintiff, and subsequently the plaintiff finds his business'falling off, whichever paper he sues may endeavor to show that the loss of trade is due, or partly due, to the charge made against the plaintiff by the other paper. So if there are two distinct and separate publications of the same libel, a defend- ant who was concerned in the first publication, but wholly uncon- nected with the second, will not be liable for any damages which he can prove to have been the consequence of the second publication and in no way due to the first. Hence evidence that plaintiff has already sued those who were liable for the second publication, and recovered damages therefor, is inadmissible in an action brought against defendant on the first publication. (Creevy v. Carr, 7 C. &P. 64; Frescoe v. May, 2 F. & F. 123.) So is evidence that other actions are pending against other persons for other publications of the same libel. (Harr'isoh v. Pearce, 1 F. & F. 567 ; 32 L. T. (Old S.) 298.) . But where there is only one publication, every one concerned in it is equally liable for all consequent damage. Hence the plaintiff can only "bring one action ; he cannot recover twic-eover from different defendants the same damages for the same injury. lie may sue one or more or all of the joint publishers in his one action, at his election. Thus, if the libel appeared in a newspaper, the person libelled may sue either the proprietor or the editor, or the (308) ABSENCE OF MALICE. 237 printer, or any two, or all three of them. If he only sue otic of many persons liable, it is no defence that others are jointly Liable with that one ; for all parties concerned in a common wrongful act are jointly and severally liable. {Post, )>. 516.) But as soon as the plaintiff recovers judgment in the first, action, every one who is jointly liable with the actual defendant is released. No second action can be brought on that publication against any one who might have been sued in the first action. (Brown v. Wootton, Cro. Jac. 73 ; Yelv. 67 ; Moo. 762 ; JJuke of Brunswick v. Pepper, 2 C. & K. 683 ; Brinsmead v. Harrison, L. R. 7 C. P. 547 ; 41 L. J. C. P. 190 ; 20 W. R. 784 ; 27 L. T. 99.) Even though the plaintiff was not then aware that such other person was liable. (Minister v. Cox, 1 Times L. R. 542.) And there is no contribution between tort-feasors. So that the proprietor of a paper cannot compel his careless editor to recoup him the damages, which he has been compelled to pay the plaintiff. [*317] (Colburn v. Patmore, 1 C. M. & R. 73 ; 4 Tyr. 077 ; 3Ios- cati v. Laioson, 7 C. & P. at p. 35.) (iv.) Absence of Malice. As a rule, unless the occasion be privileged, the motive or inten- tion of the speaker or writer is immaterial to the right of action : the Court looks only at the words employed and their effect on the plaintiff's reputation. But in all cases, the absence of malice, though it may not be a bar to the action, may yet have a material effect in re- ducing the damages. The plaintiff is still entitled to reasonable compensation for the injury he has suffered ; but if the injury was unintentional, or was committed under a sense of duty, or through some honest mistake, clearly no vindictive damages should be given. In every case, therefore, the defendant may, in mitigation of damages, give evidence to show that he acted in good faith and with honesty of purpose, and not maliciously. {Pearson v. Lemaitre, 5 M. & Gr. 700 ; 12 L. J. Q. B. 253 ; 6 Scott, N. R. 607 ; 7 Jur. 748 ; 7 J. P. 336.) He may show that the remainder of the libel not set out on the record modifies the words sued on ; or that other passages in the same publication qualify them. But he may not put in passages contained in a sub- sequent and distinct publication, unless the words sued on are equiv- ocal or ambiguous. (Cooke v. Hughes, R. & M. 112 ; Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J. Ex. 227 ; 2 Jur. N. S. 497.) The fact that the defendant did not originate the calumny, but innocently repeated it, is admissible if he gave it as hearsay and named his authority when he repeated it, but not otherwise, as we have seen, ante, p. 313. The defendant may also urge- that plaintiff's conduct was such as would naturally lead the defendant to put the worst con- struction on his acts ; or that in any other way the plaintiff had, by his conduct, brought the libel on himself. So defendant's subsequent conduct may mitigate [*318] the damages, e. g., if he showed himself open to argument, listened to the explanations that were offered i3i9i 238 DAMAGES. him, stopped the sale of the libel as soon as complaint reached him, &c, &c. In some cases, as we have seen, the plaintiff's conduct towards the defendant may be a bar to the action ; as where the plaintiff, by at- tacking the defendant, liad provoked a reply which is made honestly in self-defence. (See ante, p. 232.) But where the tacts do not amount to such a defence, they may still tend to mitigate the dam- ages. " There can be no set-off of one libel or misconduct against another ; but in estimating the compensation for the plaintiff's in- jured feelings, the jury might fairly consider the plaintiff's conduct, and the degree of respect he has shown for the feelings of others." (Per Blackburn, J., in Kelly v. Sherlock, L. R. 1 Q. B. 698 ; 35 L. J. Q. B. 213 ; 12 Jur. N. S. 937.) Thus, evidence is admissible in mitigation of damages to show that plaintiff had previously himself libelled or slandered the defendant, provided it be also shown that this had come to the defendant's knowledge and occasioned his attack on the plaintiff. (Finnerty v. Tipper, 2 Camp. 76 ; Antony Pas- quirts case, cited 1 Camp. 351 ; Tarpley v. Blabey, 2 Bing. N. C. 437 ; 2 Scott, 642 ; 7 C. & P. 395 ; Watts v. Fraser, 7 A. & E. 223 ; 7 C. & P. 369 ; 1 M. & Rob. 449 ; 2 N. & P. 157 ; WaJdey v. Johnson, Ry. & M. 422.) But not if such previous libels refer to other matters and did not provoke that sued on. ( May v. Brown, 3 B. & C. 113 ; 4 D. & R. 670 ; Sheffill v. Van Beusen, 15 Gray, 485.) The defendant may not branch out into irrelevant matters in his evidence ; he may cross-examine plaintiff thereon ; but if he does, he must take plaintiff's answer ; he cannot call evidence to contradict it. Where no justification is pleaded, the defendant will not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the cirenmstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of [*319j the judge, unless seven clays at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence. (Order XXXVI. r. 37.) The previous libels and slanders may be made the matter of a counter-claim, even though not immediately connected with the words on which plaintiff is suing ; and the defendant may thus not only reduce the amount of damages due to the plaintiff, but even overtop the plaintiff's claim, and recover judgment»for the balance. (Quin v. Jlession, 40 L. T. 70 ; 4 L. R. It. 35.) And where there is no counter-claim, the previous conduct of the plaintiff may be ground for applying to the judge to deprive him of costs. In Har- nett v. Vise and wife, 5 Ex. D. 307 ; 29 W. R. 7, Huddleston, B., deprived a plaintiff of his costs on this ground, although the jury found that the plea of justification was not proved, and had given him damages £10. And this decision of the learned baron was upheld both in the Exchequer Division and in the Court of Appeal. A libel by A. on B. is no justification for an assault by B. on A., though if A. sue for the assault, B. may give the libel in evidence to show provocation, and thus reduce the damages. (Fraser v. (310) plaintiff's bad chaeactee. 239 Berkeley, 1 C. & P. 621 ; 2 M. & R. 3 ; Kelser v. Smith, 46 Amor. Rep. 342.) Illustrations. The defendant published an inaccurate report of proceedings in a court of Justice, reflecting on the character of the plaintiff; any evidence to show that the defendant honestly intended to present a fair accounl of what took place, and had blundered through inadvertence solely, was held admissible by Cole- ridge, J., in Smith v. Scott, 2 Car. & Kir. 580. And. therefore, evidence of what really did take place at the trial is admis sible ; though no evidence can be given of the truth or falsehood of the state ments there made. East v. Chapman, M. & M. 46 ; 2 C. & P. 570. Vmey v. Pike, 3 C. & P. 512. Charlton v. Watton, 6 C. & P. 385. Where a newspaper republished the report of a company containing reflec- tions on the plaintiff, their manager, Wightman, J., directed the jury that if they were satisfied such publication was made innocently, and with no desire to injure the plaintiff, they might give nominal damages only. Darts v. Cntlnish and others, 1 F. & F. 487. Where an editor refused to disclose the name of his correspondent who wrote the libel, but offered to open his columns to the plaintiff, and the plaintiff accepted this offer and wrote several letters which defendants published, reply- ing to the charges made against him and explaining them away, Martin, B., directed the jury to take these circumstances into their consideration in favor of the defendants. Harle v. Catherall and others, 14 L. T. 801. [*320] (v.) Evidence of the plaintiff'' shad character. One way, but a very dangerous one, of minimising the damages, is to show that the plaintiff's previous character was so notoriously bad that it could not be impaired by any fresh accusation, even though undeserved. The gist of the action is the injury done to the plaintiff's reputation ; and if the plaintiff had no reputation to be injured, surely he cannot be entitled to more than nominal damages. Hence the fact that plaintiff had a general bad character before the date of the libel or slander may be given in evidence in mitigation of damages. But the defendant may not go into par- ticular instances ; still less may he prove the existence of a general report that the plaintiff had actually committed the particular offence of which the defendant accused him or any similar offence. If, however, the plaintiff goes into the box, he can of course be cross-examined " to credit " on all the details of his previous life which affect his credit ; but, unless such details are material to the issue, the defendant must take the plaintiff's answer, and cannot call evidence to contradict it. Evidence as to plaintiff's general bad character will not. however, be admissible unless it be shown that his character was such pre- viously to the alleged slander or libel ; for otherwise his evil reputa- tion may have been occasioned by the defendant's own publication, which would rather aggravate than diminish the damages. ( Thomp- son v. Nye, 16 Q. B. 175 ; 20 L. J. Q. B. 85 ; 15 Jur. 285.) And now by Order XXXVI. r. 37, a defendant who has not justified will not be entitled on the trial to give evidence in chief, with a view to ^ (311) 240 DAMAGES. mitigation of damages, as to the character of the plaintiff, without flhe leave of the judge, unless seven days at least before the trial he furnishes particulars [*32lJ to the plaintiff of the matters as to which he intends to give evidence. There has been a great conflict of opinion as to the admissibility of evidence of the plaintiff's general bad character, and of rumours prejudicial to his reputation ; but the law on the point has now been Anally settled by the decision in Scott v. Sampson, supra. It is, therefore no longer necessary to refer in detail to the numerous scantily reported^and conflicting rulings on the point at Nisi Prius, which are dealt with in that exhaustive judgment. The following cases, which are not referred to, bear out the decision : Woolmer v. Latimer, 1 Jur. 119 ; Mills and wife v. Spencer and wife, Holt, N. P. 533 ; Rodriguez v. Tadmire, 2 Esp. 721. The Irish case Bell v. Parke, 11 Ir. C. L. R. 414, is consistent with Scott v. Sampson, except in one point : the Irish judges admitted evidence that the plaintiff had certain vicious habits which would lead him to commit such acts as that ascribed to him in the slander. This ruling will not be followed in England. But the decision in " Scott v. Sampson does not appear to restrict in any way the defendant's liberty (or licence) of cross-examination. Lord Coleridge did not exclude any question put by defendant's counsel to any witness called by the plaintiff. Hence I apprehend that Wyatt v. Gore, Holt, K P. 299 ; and Snowdon v. Smith, 1 M. & S. 286, n., which were not cited in Scott v. Sampson, as well as JVewsam v. Carr, 2 Stark. 69, which is referred to, are still good law. I do not think these are to be considered as overruled by Bracegirdle v. Bailey, 1 F. & F. 536, as in that case the plaintiff had given no evidence in chief, so that questions merely to credit were" inadmissible, and, moreover, the question rejected tended to show that the libel was true, and no justification had been pleaded. (See ante, p. 312.) Order XXXVI. r." 37, is also confined to evidence tendered by the defendant in chief. Illustrations. In an action for words imputing adultery to a widow, Holroyd, J. held that it was competent to the defendant to go into general evidence to impeach the plain- tiff's character for chastity. Ellershaw v. Robinson et ux. (1824), 2 Starkie on Libel, 2nd cd. p. 90. And Lord Tenterden is said to have admitted similar evidence, although a justification was pleaded. Mawhy v. Barber (1826), 2 Starkie on Evidence, p. 470. And see Maynard v. Deardsley, 7 Wend. 560. When such general evidence has been given, plaintiff's counsel may go into particular instances to rebut it. Rodriguez v. Tadmire, 2 Esp. 721. [*322] (vi) Absence of Special Damage. When any special damage is alleged, the o?iks of proving it lies of course on the plaintiff. The defendant may call evidence to rebut (312j APOLOGY. 241 the plaintiff's proof, though he generally prefers to rely on the cross- examination of the plaintiff's witnesses, lie may either dispute that the special damage lias occurred at all, or he may argue as a matter of law that it is too remote (see post, p. 325) ; or he may call evi- dence to show that it, was not the consequence of the defendant's words, but of sOme other cause. A plaintiff may not recover the same damages for the same injury twice from t\v<> differenl defend- ants ;but he may recover from two different defendants damages proportioned to the injury each has occasioned. ( Harrison \ . Pearce, 1 F. & F. 567 ; 32 L. T. (Old S.) 298 ; Wyatt v. Gore, Holt, N. 1'. 299, ante, p. 3 15.) (vii.) Apology and Amends. By Lord Campbell's Act (6 & 7 Vict, c.196), s. 1, it is enacted, " that in any action for defamation it shall be lawful for the defend- ant (after notice in writing of his intention so to do, duly given to the plaintiff at the time of filing or delivering the plea in such action) to give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commence- ment of the action, or as soon afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there was on opportunity of making or offering such apology." And by s. 2, "that in an action for a libel contained in any pub- lic newspaper or other periodical publication, it shall lie competent to the defendant to plead that such [*323] libel was inserted in such newspaper or other periodical publication without actual mal- ice, and without gi-oss negligence, and that, before the commence- ment of the action, or at the earliest opportunity afterwards, he inserted in such newspaper or other periodical publication a full apology for the said libel, or if the newspaper or periodical publi- cation in whioh the said libel appeared should be ordinarily pub- lished at intervals exceeding one week, had offered to publish the said apology in any newspaper or periodical publication to be selected by the plaintiff in such action ; . . . . and that to such plea to such action it shall be competent to the plaintiff to reply generally, denying the whole of such plea." (See Chadwick v. Herapath, 3 C. B. 885 ; 16 L. J. C. P. 104 ; 4 D. & L. 653.) Money must be paid into Court by way of amends at the time any plea under s. 2, is delivered, or it will be treated as a nullity (8 & 9 Vict. c. 75, s. 2). Hence no other defence denying liability can now be joined with such a plea. (Order XXII. r. 1 ; and see O'Brien v. Clement, 3 D. & L. 676 ; 15 M. & W. 435 ; 15 L. J. Ex. 285 ; 10 Jur. 395 ; and Barry v. JSP Grath,\x. R. 3 C. L. 576.) There is a difference between the language of the two sections as to the date at which the apology must appear ; but they both mean the same thing. It will not be sufficient for the defendant under sect. 2 to plead that the apology was inserted " at the earliest oppor- tunity after" the commencement of the action, if there was an opportunity before. (Per Keating, J., in Ravenhill v. Upcott, 33 J. P. 299 f and see Evening News v. Tryon, 36 Amer. R. 450.) 16 LIS. & slan. (313) 242 DAMAGES. There appears to be no English decision reported as to what is, and what is not, "gross negligence " in theconduct of a newspaper. But in America it has been decided that the jury may take into consideration the hurry necessarily incident to the preparation and publication of a daily newspaper, as where an article is brought in at the last moment before going to press (Scripps v. Reilly, 38 Mich, lo) ; but that the excitement of an election is no mitigation. (Bearirk v. Wilcox, 81 111. 77.) [*324] But wholly apart from these sections, a defendant may give evidence of any apology or other amends in mitigation of damages ; even though such apology was not made " at the earliest opportunity after the commencement of the action " (Smith v. Har- rison, 1 F. & F. 565). Still a tardy or reluctant apology will not avail the defendant much. A retraction should be made as pub- licly as the charge, and as far as possible to the same persons ; and the defendant should do his utmost to stop the further sale of the libel. The sufficiency or insufficiency of an apology is peculiarly a question for the jury. (Risk Allah Bey v. Johnstone, 18 L. T. 620.) But a statement cannot be called an apology, unless it both unreservedly withdraws all imputation and expresses regret for having made it. The defendant must not try to exculpate himself or justify his conduct (see post, p. 524). The apology should be full, though it need not be abject ; the defendant is not bound to insert an apology dictated by the plain- tiff ; but it must be such as an impartial person would consider reasonabl} r satisfactory under all the circumstances of the case. (Bisk Allah Bey v. Johnstone, 18 L. T. 620.) It should be printed in type of ordinary size, and in a part of the paper where it will be seen; not hidden "away among the advertisements or notices to correspondents. (La/one v. Smith, 3 II. & N. 735 ; 28 L. J. Ex. 33 ; 4 Jur. X. S. 1064.) So, too, a defendant may now, with or without any apology, pay money into Court by way of satisfaction or amends, at any time between service of the writ and delivering his Defence, or by leave of a master at chambers at any later time. If such payment be made before delivering the Defence, he should at once give the plaintiff notice that he has paid in such money ; and in any case he should plead the fact of payment into Court in his Defence. But if such payment into Court be made, no other defence deny- ing liability can be pleaded. (Order XXII. r. 1.) t*325] yi. — Remoteness of Damages.' special damage alleged must be the natural and probable of the defendant's wrongful conduct. In some cases it can The result ol be shown that the defendant contemplated and desired such result at the time of publication : in other cases the result is so clearly the natural and necessary consequence of the libel or slander that it may fairly be said the defendant ought to have contemplated it, whether in fact he did so or not. But where the damage sustained by the plaintiff is neither the necessary and reasonable result of the (314) REMOTENESS. 243 defendant's conduct, nor such as can be shown to have been in the defendant's contemplation at the time, there the damage will he held too remote. Evidence cannot he given at the trial of any special damage which would nol How from defendant's words in the ordinary course of things, unless there are special circumstances in the case which show that the defendant intended and desired that result. It is not enough that his words have in fact produced such damage, unless it can reasonably he presumed that the defendant, when he uttered the words, either knew, or ought to have known, that such damage would ensue. Illustrations. The defendant insinuated thai the plaintiff had been guilty of the murder of one Daniel Dolly ; Hie plaintiff thereupon demanded thai an inquesl should be taken on Dolly's body, and incurred expense thereby. Held thai such expense was recoverable as special damage ; though it was not compulsory on the plain- tiff to have an inquest held. Peake v. Oldham, Gowp. 275 ; 2 W. Bl. 960. " Suppose that during the warof 1870. an Englishman had been pointed out to a Parisian mob as a German spy, and thrown by them into the Seine, it could not be contended that one act was not the natural and necessary consequence of the other." Mavne on Damages, 3rd ed. p 426 ; 4th ed. p. 454. [*328] The defendant said to Mr. Knight of his wife Mrs. Knight, " Jane is a notorious liar .... she wasall butseduced by a Dr. C, of Koseonnnon, and I advise you, if C. comes to Dublin, not to permit him to enter your place. . . . She is an infamous wretch, and I am sorry that you had the misfor- tune to marry her, and if you had asked my advice on the subject I would have advised you not to marry her." Knight thereupon turned his wife out of the house and sent her home'to her father, and refused to live with her any longer. Held that loss of consortium of the husband can constitute special damage; but that in this case the husband's conduct was nut the natural or reasonable consequence of defendant's slander. Secus, had the words imputed actual adultery since the marriage. Lynch v. Knight and wife, 9 H. L. C. 577 ; 8 Jur. K S. 724. Parkins et ux. v. Scott et uz., 1 H. & C. 153 ; 31 L. J. Ex. 331 ; 8 Jur. N. S. 593 ; 10 W. R. 562 ; 6 L. T. 394; post, p. 329. Where the libel attacked the character of both husband and wife and the declaration alleged that the wife fell ill and died in consequence of it, evidence of such damage was excluded in an action brought by the surviving husband. Guy v. Gregory, 9 C. & P. 584. A declaration alleged that the defendant falsely and maliciously spoke of the plaintiff, a working stonemason, " He was the ringleader of the nine hours' system," and "He has ruined the town by bringing about the nine hours' system," and " He has stopped several good jobs from being carried out, by being the ringleader of the system at Llanelly," whereby the plaintiff was pre- vented from obtaining employment in his trade at Llanelly. Held, on demur- rer, that the alleged damage was not the natural or reasonable consequence of the speaking of such words, and that the action could not be sustained. Miller v. David, L. R. 9 C. P. 118 ; 43 L. J. C. P. 84 ; 22 W. R. 332 ; 30 L. T. 58. The special damage must be the direct result of the defendant's words. The jury may not take into their consideration any damage which is produced not so much by the defendant's words as by some other fact or circumstance unconnected with the defendant, such as the spontaneous resolution of a third person. The defend- (31 5j 244 ' DAMAGES. ant's words must at all events be the 'predominating cause of the damage assigned. Illustrations. The defendant slandered the plaintiff to his master B. Subsequently B. dis- covered from another source that the plaintiff's former master had dismissed him for misconduct. Thereupon 15. discharged the plaintiff in the middle of the term [*327] for which he had engaged his services, lhld that no action lay against the defendant ; for his words alone had not caused B. to dismiss the plaintiff. Vicars v. Wilcox, 8 East, 1 ; 2 Sm. L. C. 553 (8th ed.) As explained in Lynch v. Knight "//>/ /rife, 9 H. L. C. 590, 600. Bingham caused a libel on plaintiff, the proprietor of a newspaper, to be printed by Hinchcliffe as a placard, and distributed 5,000 such placards. He also put the same libel into a rival newspaper, the defendant's, as an advertise- ment. Plaintiff sued both Bingham and Hinchcliffe as well as the defendant, alleging that the circulation of his paper had greatly declined. The action against the defendant came on first, and his counsel, having failed to prove the justification pleaded, contended that the decline of circulation must principally he ascribed to the 5,000 placards, not to the advertisement. Martin, B., while admitting that defendant was not liable for damage caused by the placards, ruled that it lay on defendant to prove that the damage sustained by the ) .Iain- tiff was in fact due to the placard, and not to the advertisement. Verdict for the plaintiff, £500. In the action against Bingham and Hinchcliffe plaintiff re- covered only 40s. The £500 was probably due to the justification pleaded and PT0V Harrison v. Pearce, 1 F. & F. 567 ; 32 L. T. (Old S.) 298. Wyatt v. Gore, Holt, N. P. 299, ante, p. 315. The plaintiff alleged that certain persons would have recommended him to X., Y., and Z., had not the defendant spoken certain defamatory words of him on the Royal Exchange, and that X., Y., and Z. would, on the recommendation of those persons, have taken the plaintiff into their employment, The plaintiff claimed damages for the loss of the employment. Such damage was held too remote, for it was caused by the non-recommendation, not by the defendant's words. Sterrv v. Foreman, 2 C. & P. 592. And see Iloey v. Felton, 11 C. B. N. S. 142 : 31 L. J. C. P. 105. In an action of slander of title to a patent, the plaintiff alleged as special damage that in consequence of defendant's opposition, the Solicitor-General refused to allow the letters-patent to be granted with an amended title, as the plaintiff desired. Held that this damage was too remote, being the act of the Solicitor-General and not of the defendant, Haddon v. Lott, 15 C. B. 411 ; 24 L. J. C. P. 49. Kerr v. Sheddon, 4 C. & P. 528. Special damage alleged, that in consequence of defendant's words, Butler would not deliver some barley which plaintiff had bought of him, except for cash on delivery. Butler, being called, admitted in cross-examination that he should have insisted on cash on delivery anyhow, even if defendant had never said anything at all, and that that was his understanding of the contract between himself and the plaintiff. Held no special damage. King v. Watts, 8C.&P. 614. The plaintiff was a candidate for membership of the Reform Club, but upon a ballot of the members was not elected. Subsequently a meeting of the members was called to consider an alteration of the rules regarding the election of mem- bers. Before the day fixed for the meeting the defendant spoke certain words Concerning the plaintiff, which " induced or contributed to inducing a majority of the members of the club to retain the regulations under which the plaintiff [*328] had been rejected, and thereby prevented the plaintiff from again seek- ing to be elected to the club." Held that the damage alleged was not pecuniary or capable of being estimated in money, and was not the natural and probable consequence of 1 he defendant's words. Chamberlain v. Boyd(C. A.), 11 Q.B.D.407; 52 L. J. C.Q.B.277; 31 W. R- 572 ; 48 L. T. 328 ; 47 J. P. 372, post, p. 630. (310) REMOTENESS. 245 The act of a third party, if directly caused by the defendant's language, is not too remote, provided the defendanl either er se, and in all cases of libel, the jury find the damages general!;/, and will be careful to punish the author of a pernicious falsehood with all due severity ; although, of course, the judge will still direct them not to take into their consideration any damage which ensued from a repetition by a stranger. {Rutherford v. Evans, 4 C. & P. 79 ; Turmlcllffe v. Moss, 3 C. & K. 83.) The two exceptions set out on p. 167, ante, are only apparent exceptions to the general rule. For whenever the first publisher either expressly or impliedly requests or procures the republication, he directly causes all damage that flows from the republication ; the second publisher is really his agent, for wdiose act he is liable. So, wherever the original publication to A. places A. under a legal or moral obligation to repeat the defendant's words, such repetition is clearly the natural consequence of defendant's communication to A. In America the judges in one or two cases appear to carry this doctrine further, and seem to lay down the rule that wherever the repetition is innocent (that is, I presume, not malicious, and on a privileged occasion), the originator must be liable for all conse- quential damage caused by the repetition ; for else, it is said, the person injured would be without a remedy. He cannot sue the person repeating the slander, as the repetition is privileged ; there- fore he must be able to sue the first publisher for the damage caused by his own publication, and by the innocent repetition as well. " Where slanderous words are repeated innocently, and without an intent. to defame, as under some circumstances they may be, I do not see why the author of the slander should not be held liable for injuries resulting from it as thus repeated, as he would be if these injuries had arisen directly from the words as spoken by himself." (Per Beardsley, J., in Kcenholts v. [* 333] Becker, 3 Denio, N. Y. 352 ; and see Tervnlllger v. Wands, 17 N. Y. 58.) But it is strange to make the liability of one man depend on the absence of malice in another. Such, at all events, is not the law of England ; it by no means follows with us that because the repetition is privileged or innocent it is therefore the natural and necessary consequence of the prior publication. In Parkinsy. Scott the repetition was clearly innocent, yet no action lay against the original defamer. Mrs. Parkins was in fact held to have no rem- edy. (See Clark v. Chambers, 3 Q. B. D. 327 ; 47 L. Q. B. 427 ; (320) REPETITION. 249 26 W. R. 613 ; 38 L. T. 454 ; Bassell v. Elmore, 48 N. Y. 561, 567 ; Titus v. Sumner, 44 N. Y. 266.) Illustrations. Plaintiff "was in communication of marriage with J. S., who was seised in fee of land worth £200 per annum." Defendant spoke words to plaintiff's ser- vant imputing unchastity to the plaintiff; "and by reason of these words she lost her marriage." Held that no action lay, becau.se the words were not spoken to J. S. Holwood v. Hopkins (1(500), Cro. Eliz. 787. Weeks was speaking to Bryce of the plaintiff, and said, " lie is a rogue and a swindler; I know enough about him to hang him." Bryce repeated this to Bryer as Weeks' statement. Bryer consequently refused to trust the plaintiff. Held that the judge was right in nonsuiting the plaintiff: for the words were not actionable per se, and the damage was too remote. Ward v. Weeks, 7 Bin.--. 211 ; 4 M. & P. 790. A groom in a passion called a lady's-maid "a whore." A lady, hearing the groom had said so, refused to afford the lady's-maid her customary hospitality. Held that no action lay, for the groom had never spoken to the lady. tlarke v. Morgan, 38 L. T. 354. Dixon v. Smith, 5 H. & N. 450 ; 29 L. J. Ex. 125 ; ante, p. 305. Defendant said of the plaintiff, a veterinary surgeon, in tin; While Lion pub- licdiouse at Barnet, "He does not know his business.'' No one then in the publiediouse ceased to employ plaintiff in consequence ; but some others did, to whom the circumstance was reported. Held that defendant was not liable for the loss of their custom. Hirst v. Goodwin, 3 F. & F. 257. Rutherford v. Evans, 4 C. & P. 74. Tunnicliffe v. Moss, 3 C. & K. 83. The plaintiff was governess to Mr. L.'s children; the defendant told her father that she had had a child by Mr. L. : the father went straight to Mr. L and told him wdiat defendant had said. Mr. L. thereupon said that the plaintiff had better not return to her duties, for although be knew that the charge was per- fectly false, still for her to continue to attend to bis children, would be injurious to her character and unpleasant to them both. Held that the repetition by the [*334] father to Mr. L., and his dismissal of the plaintiff, were both the natural consequences of the defendant's publication to the father. Gilli tt v. Bullivant, 7 L. T. (Old S.) 490. Fowles v. Bowen, 3 Tiff. (30 N. Y.) 20. H. told Mr. Watkins that the plaintiff, his wife's dressmaker, was a woman of immoral character. Mr. Watkins naturally informed bis wife of this charge, and she ceased to employ the plaintiff. Held that the plaintiff's loss of Mrs. Watkins' custom was the natural and necessary consequence of the defendant's communication to Mr. Watkins. JJerry v. Handle.!/, 16 L. T. 263. A police magistrate dismissed a trumped-up charge brought by the plaintiff, a policeman, and added : "I am bound so say, in reference to this charge and a similar one brought from the same spot a few days ago, that I cannot believe William Kendillen on his oath." This observation was duly reported to the Commissioners of Police, wdio in consequence dismissed the plaintiff from the force. Lord Denman held that the dismissal was special damage for which the defendant would have been liable, if the action had lain at all : for he must have known that such a remark would certainly be reported to the commis- sioners, and would most probably cause them to dismiss the plaintiff. Nonsuit on the ground of privilege. Kendillon v. Maltby, 1 Car. & Marsh. 402. The defendant, a passenger on board a steam-packet, complained to the captain that the plaintiff, the third officer, had been guilty of misconduct towards one of the lady passengers. On the arrival of the vessel at Jamaica, the captain reported this charge to the marine superintendent of the company there, who reported it to the directors at the chief office of the company in London, who (321) 250 DAMAGES. dismissed the plaintiff from the service of the company. The plaintiff sought leave to issue a writ to be served on the defendant, who resided in Jamaica. None of the above eases were cited l<> the Court. Leave was refused, on the ground that the ease did not come within the words of the repealed rule, Order XI. r. 1 ; hut Bramwell, L. J., intimated that in his opinion the alleged special damage was too remote, differing from Den man, J., in I lie Court below. Bra- v. Mnrext'uiu: (C. A.), 7 (.J. B. D, 434 ; 50 L. J. Q. B. 676 ; 29 W. R. 858 ; 44 L. T. 644, 705. If I make an oral statement to the reporter of a newspaper, intending and desiring him to inserl the substance of it in the paper, I am liable lor nil the consequences of its appearing in print, although I never expressly requested the reporter to publish it. BoM v. Douglas, 7 C. & P. 626. It. v. Lovett, Street, London." The pamphlet was full of abuse of the chairman of the defendant company, and also gave a digest of plaintiff's evidence be f ore the examiner, &c. Vice-Chancellor Wood granted an injunction to restrain the plaintiff, the solicitors, servants, agents, and workmen from publishing so much of the pamphlet (stating the objectionable passages), and from publishing or offering for sale, during the progress of this suit, any book or pamphlet con- taining statements of the proceedings in this suit ; and also from making public any of such proceedings otherwise than in the due course of the prosecution of this suit until the hearing of this ease, or until the further order of this Court. Coleman v. West Hartlepool Harbour and Rail. Co., 8 W. 11. 734 ; 2 L. T. 766. One of the defendants in an action, who was a Nonconformist minister, cir- culated a handbill through the town in the following words :— " Chancery Suit. "Congregational Church, Heme Bay. "On Sunday morning, June 25th, the Rev. Thomas Bland ford will preach a sermon with special reference to the trial in which the town is so deeply inter- ested, and which is fixed for the 27th and following days. " Divine service to commence at 11 o'clock." About forty inhabitants of Heme Bay were to be examined as witnesses at the trial. Bacon, V.-O, on Saturday, the 24th, granted an injunction tore- strain Blandford from preaching any sermon or delivering any address with special or other reference to the trial, and from issuing these handbills, or being in any way instrumental in the publication or distribution of these or any other like handbills or notices, and from otherwise prejudicing or interfering with the trial of the action or the persons to be examined as witnesses therein. Maekett v. Commissioners of Heme Bay, 24 W. R. 845. The defendant, on receiving a statement of claim charging him with fraud, [* 339] wrote an angry letter to the plaintiff, a clergyman, threatening to have a few thousand copie's printed, with defendant's own remarks thereon, and copies of the defendant's letters, and distributed amongst all the clergy, " ad- dressed from the Clergy List." Fry,' J., granted an injunction to restrain the threatened publication, as being both a libel on the plaintiff as plaintiff, and also as tending to prejudice the fair trial of the action. Kitcapv. Sharp, 52 L. J. Ch. 134 ; 31 W. R. 227 ; 48 L. T. 64. The plaintiffs and the defendant were ship brokers ; the plaintiffs delivered a statement of claim charging the defendant with unfair and improper conduct in his business, and before any defence was delivered circulated copies among the business connections of both parties. Malins.V. C, held that the plaintiffs had committed a contempt of Court, and must pay the costs of a motion to commit them ; he also granted an injunction to restrain the plaintiffs from pub- lishing or circulating copies of the statement of claim in the action . Bowden and another v. Russell, 46 L. J. Ch. 414 ; 36 L. T. 177. Closely akin to the power of restraining contempts of Court, is the power which all superior Courts undoubtedly possess of forbid- ding for a time reports of or comments on their own proceedings, whenever the presiding judge considers that such publication will prejudice future proceedings. Illustrations. On the trial of Thistlewood and others for treason, in 1820, Abbott, C. J., announced in open Court that he prohibited the publication of any of the pro- ceedings until the trial of all the prisoners should be concluded. In spite of this prohibition, the Observer published a report of the trial of the first two prisoners tried. The proprietor of the Observer was summoned for the con- tempt, and, failing to appear, was fined 500£. R. v. Clement, 4 B. & Aid. 218. Where one of two prisoners charged with murder confessed before his trial, and by his confession seriously implicated the other, the Court of Sessions pro- (325) 254 INJUNCTIONS. liil)ilc(] the 'Edinburgh Evening Courant from publishing the confession, lest it should prejudice the fair trial of the other prisoner. Bell's Notes, 165. See also Entond's Oase(Dec. 7th, 182!)), Shaw, 229. Fleming and others v. Newton, 1 II. L. C. 363 ; <"> Bell's App. 175. Riddell v. Clydesdale Horse Society, 12 Court of Session Cases (4th Scries), 976. Where several prisoners were to be tried at one sessions for similar acts of sedition, and on the trial of the first one the jury disagreed, and theDublin Evening Post severely attacked the jury for not convicting him, the Dublin Assize Court made an order prohibiting all comments in any newspaper upon the proceedings of the session till all the prisoners had been tried, considering [*340] that such comments were calculated to excite feelings of hostility towards the prisoners about to be tried. R. v. O'Dogherty, 5 Cox, C. C. 348. The House of Lords, when sitting as a Court of Law, claimed for many years the right to appoint one printer to publish their proceedings, and to order that no other person should presume to publish the same, even after the case was at an end. So, in the case of an impeachment, Lord Erskine, L. C, held, after great hesitation, that such an order must be enforced by injunction; thus apparently admitting that one chamber of the legislature had the power to create a monopoly. Such a decision would not be upheld in the present day. Gurney v. Longman (1807), 13 Vesey, 493-509. And see Millar v. Taylor (1769), 4 Burr. 2303-2417. Manby v. Owen (1755), 4 Burr. 2329, 2404. Roper v. Streater, Skin. 234 ; 1 Mod. 217. The Stationers v. Patentees of Rolle's Abridgment, Carter, 89. Buttericorth v. Robinson, 5 Ves. 709. II. Injunctions granted after Verdict or at the final Hearing. The Superior Courts have also unquestionable power to grant an injunction to restrain any further publication of what a jury has found to be an actionable libel or slander. After such a finding in his favour, the plaintiff may clearly ask for an injunction for his protection in the future in addition to damages for the injury done him in the past. Libel or no libel, malice or no malice, are pre- eminently questions for a jury, but after they have once been decided the judge may grant an injunction, if he is of opinion that any repetition of the libel would be injurious to the plaintiff's property. {Saxby v. Fasterbrook, 3 C. P.' D. 339 ; 27 W. R. 188.) So when an action is commenced in the Chancery Division (as it now may be), and the defendant does not demand a jury, or applies for one too late, the judge who tries the action may, at the hearing, grant an injunction. (27iorle>/s Cattle Food Co. v. Massam, 6 Ch. D. 582 ; 46 L. J. Ch. 713 ; 14 Ch. D. 763 ; 28 W. R. 295 ; 41 L. T. 542 ; (C. A.) 14 Ch. D. 781 ; 28 W. R. 966 ; 42 L. T. 851 ; Thomas v. Williams, 14 Ch. D. 864 ; 49 L. J. Ch. 605 ; 28 W. R. 983; 43 L. T. 91. See also the remarks of Lord [*34l] Langdale, M. R., in Clark v. Freeman, 11 Beav. 117, 118; and of the late Master of the Rolls in Ilinrichs v. Berndes, Weekly Notes for 1878, p. 11.) (326) BEFORE VERDICT. 255 Illustrations. The plaintiff and the defendant were rival railway signal manufacturers. They both invented practically the same improvement ; but defendant was the first to patent it. Plaintiff "subsequently petitioned for a patent, but was refused as being too late. Thereupon the defendant published an advertise- ment announcing that " Saxby's application was cancelled by the Crown on the ground of piracy from Easterbrook." Plaintiff claimed damages £1,000, and an injunction to 'restrain the defendant from publishing libels againsl the plain- tiff of the like nature and description. The jury awarded forty shillings, and Lord Coleridge, C. J., granted a perpetual injunction. The Divisional Court decided that lie' had power so to do, as the jury had previously found the mat- ter libellous. [N.B. — This is the only reported case in which any injunction has been granted in the Queen's Bench Division in an action of libel or slander.] ' Saxby v. Easterbrook, 3 C. P. D. 339 ; 27 W. II. 188. Joseph and Josiah Thorley had equal rights to manufacture " Thorley's Food for Cattle," both possessed the secret of its composition, and manufactured the same article. Yet the executors of Joseph advertised that they " alone pos- sessed the secret for compounding that famous condiment," which they knew to be false. Malins, V.-C., refused to grant an injunction on an interlocutory application ; but granted it at the final hearing, and his decision was upheld by the Court of Appeal. 2horl( tf's Cattle Food Co. v. Massam (inrerlocutorv), 6 Ch. D 582 ; 46 L. J. Ch. 713. (Before Malins, V.-C.)14 Ch. D. 7G3 ; 28 W. R. 295 ; 41 L. T. 542. (C. A.) 14 Ch. D. 781 ; 28 W. R. 966 ; 42 L. T. 851. And see James v. James, L. R. 13 Eq. 421 ; 41 L. J. Ch. 253 ; 26 L. T. 568. Mr. Gandy owned two patents for manufacturing cotton belting ; plaintiffs were formerly his agents. An injunction was granted by Pearson, J., in 1883, to restrain the plaintiffs from selling the belting of other manufacturers as that of Gandy. Subsequently Gandy inserted an advertisement in the British Trade Journal, complaining that unprincipled persons were imitating his belting, and misleading the public, stating that the above injunction had been granted, and that he had reason to believe that plaintiffs still continued to sell a large quantity of other belting as his. North, J., granted an injunction with costs against both Gandy and the publisher of the British Trade Journal, and also ordered Gandy to pay £500 damages. Kerr v. Gandy, 3 Times L. R. 75. Where the plaintiff in a trade-mark case failed on all points but one, and afterwards published a " caution " to the trade, which stated the effect of the judgment so far as it was in his favour, but omitted all allusion to the parts of the judgment in defendant's favour, North, J., held the report unfair, gave [*342] the plaintiff £5 damages, and granted an injunction restraining its circula- ion, with costs. Hay ward & Co. v. Hayward & Sons, 34 Ch. D. 198 ; 56 L. J. Ch. 287 ; 35 W. R, 392 ; 55 L. T. 729. III. Injunctions granted on an Interlocutory Application before or icithout any Verdict. It has now been decided in the Chancery Division (in the face of a long series of decisions to the contrary), that the Court has juris- diction to grant an injunction to restrain the publication of a libel upon an interlocutory application at any stage of the action. ( Quartz Hill Gold Mining Co. v. Beall (C. A.), 20 Ch. D. 501 ; 51 L. J. Ch. 874 ; 30 W. R. 583 ; 46 L. T. 746.) And also to (327) 256 INTERIM. restrain any slander calculated to injure the plaintiff's business. (Hermann Loog v. Bean (C. A.), 20 Ch. I). 306 ; 53 L. J. Ch. 1128 ; 32 W. R. 904 ; 51 1.. T. 442 ; 48 J. P. 708.) No such in- junction lias as yet been granted in the Queen's Bench Division, so far as I am aware. But this jurisdiction must he exercised with great caution so far as interlocutory applications are concerned, and especially m cases of Blander. Thus, an interlocutory injunction "will not be granted restraining any publication that is prima facie privileged (Quartz Hill Gold Mining Co. v. Beall (C. A.), 20 Ch. D. 501 ; 51 L. J. Ch. 874 ; 30 W. R. 583 ; 46 L. T. 746), or that may he bond, fide comment on a matter clearly of public interest. (Armstrong and Others v. Armit and Others, 2 Times L. R. 887.) Nor will an injunc- tion he granted until it is proved that the matters alleged in the docu- ment complained of are untrue, so that the further Issuing of such doc- uments would not be bond fide. (Ilalsey v. Brotherhood (C. A.), 19 Ch. D. 386 ; 51 L. J. Ch. 233 ; 30 W. R. 279 ; 45 L. T. 640. See also [*343] Anderson v. Liebig^s Extract of Meat Co., Limited, 45 L. T. 757.) Hence on this application, apparently, it lies on the plaintiff to prove that the defendant's statements are false. (Bur- nett v. Tak, 45 L. T. 743.) As soon as this is done an injunction will he granted against continuing them, as all future publications would then be maid fide. (Hill v. Hart Havies, 21 Ch. D. 798 ; 51 L. J. Ch. 845 ; 31 W. R. 22 ; 47 L. T. 82 ; Societe Anonyme des Manufactures de Glaces v. Tilahmarfs Patent Sand Blast Co. (C. A.), 25 Ch. D. 1 ; 53 L. J. Ch.'l ; 32 W. R. 71 ; 49 L. T. 451 ; 48 J. P. 68.) And although an interim or interlocutory injunction cannot as a rule be obtained unless the applicant shows clearly that " irreparable damage" will ensue from the continuance of the acts complained of — damage, that is, for which no amount of damages can adequately compensate him (Mogul Steamship Co. v. M' Gregor, Gow er se, and not to actions of libel, (347) 276 COSTS. of slander of title, of scandalum magnatum, or where the words are actionable only by reason of special damage alleged. But both the 21 Jac. I. c. 10, and the 3 & 4 Vict. c. 24, s. 2, and all special Acts relating to costs, are now repealed by s. 33 of the Judicature Act, 1875 (Parsons v. Tinling, 2 ('. P. I). 110 ; 4(5 L. J. C. P. 230 ; 25 W. R. 255 : 35 L. T. 851 ; Garnett v. Bradley (C. A.), 2 Ex. D. 349 ; 46 L. J. Ex. 545 ; 25 W. R. 653 ; 36 L. T. 725 ; (H. of Lds.) 3 App. Cas. 044 ; 48 L. J. Ex. 186 ; 26 W. R. 608 ; 39 L. T. 261 ; Ex parte Mercers' 1 Company, 10 Ch. D. 481; 48 L. J. Ch. 384 ; 27 W. R. 424) ; while the County Courts Act, 1867, is, by the express words of s. 67 of the Judicature Act of 1873, restricted to actions in which relief can be given in a County Court ; and slander and libel are not among such actions. (County Courts Act, 1846 (0 & 10 Vict. c. 95), s. 58.) Hence now, if a plaintiff recovers nominal damages merely, he will get his costs, unless the judge or a Divisional Court otherwise orders. The defendant's counsel must at once apply to the judge to made an order depriving the plaintiff of his costs. But as a rule such an order will only be made where " contemptuous " damages, such as a farthing or a shilling, have been given, and not always then. There must be some " good cause " for such an order ; something either in the conduct of the parties or in the facts of the case which, in spite of the finding of the jury, makes it more just that an exceptionable order should be made. If there be no such " good cause," the Court of Appeal will set the order aside. If there beany [*367] such " good cause," then the Court of Appeal will not interfere with the judge's discretion, though they may not approve of the way in which he has exercised it. (Jones v. Curling and another ( C. A.), 23 Q. B. D. -262 ; 53 L. J. Q. B. 383 ; 32 W. R. 651 ; 50 L. T. 349 ; Sutdiffe v. Smith, 2 Times L. R. 881 ; but see Huxley v. West London. Extension My. Co., 17 Q. B. D. 373.) But if the judge chooses to make an order, that order is not nec- essarily that each party should pay his own costs. lie may for very good cause order that the successful plaintiff should pay defendant's costs, as well as his own (see per Bramwell, L. J., 15 Ch. D. at p. 41) ; and where there has been a nonsuit, and a new trial, the judge who tries the case the second time may order that the successful plaintiff shall pay the whole costs of both trials. (Harris v. Petherick (C. A.), 4 Q. B.D. 611 ; 48 L. J. Q. B. 521 ; 28 W. R. 11 ; 41 L. T. 146.) But of course such an order would only be made in an extreme case, and where the plaintiff has misconducted himself. (See Norman v. Johnson, 29 Beav. 77.) A successful defendant cannot be made to pay the whole costs of the action under any cir- cumstances. (Dirks v. Yates, (C. A.), 18 Ch. I). 76, 85 ; 50*L. J. Ch. 309 ; 44 L. T. 660 ; Re Foster v. Great Western Bail. Co., 8 Q. B. D. at pp. 521, 522 ; 30 W. R. 398.) Illustrations. Where an action of libel was brought on a private letter written by a lady to an intimate friend, and shown only to the plaintiff and two others, and the plain- (348) costs. 277 tiff's own conduct had given rise to t lie suspicions entertained by the writer, and the jury gave a verdict for 10/. damages ; Huddleston. 15., made an order depriving him of costs, and his discretion was approved both in the Divisional Court and in the Court of Appeal. Harnett v. Vise and Wife (C. A.), 5 Ex. D. 307 ; 29 W. R. 7. Where a defendant denied publication, pleaded privilege, and also paid ten shillings into Court, and the jury found for the plaintiff on all the other issues except the last, as to which they found that the amount paid into Court was sufficient, Palles, L. C. B., gave judgment for the defendant "without costs, and the Divisional Court refused to interfere with his discretion. Kearney v. Harrison, 1U L. 11. Ir. 17. [*368] Tiiis rule as to nominal damages carrying costs applies in all Courts whatsoever in England, and to all actions of slander and libel, wherever tried, so long as they come before a jury. Thus, in the Salford Hundred Court of Record {Tum&r v. Heyland, 4 C. P. D. 432 ; 49 L. J. C. P. 535 ; 41 L. T. 550), or in the Liverpool Court of Passage {King v. Hawkesworth, 4 Q. B. I). 371 ; 48 L. J. Q. B. 484 ; 27 W. R. 660 ; 41 L. T. 411), the rule is the same as in the High Court. The law is the same in Ireland in all actions tried 'since the 53rd section of the Judicature Act (Ireland), 1877, came into operation. ( Cassiclg v. O* Log Men, 4 L. R. Ir. 1, 731.) And it is so in New South Wales also. (Harris v. Barnes, 10 App. Cas. 279 ; 54 L. J. P. C. 15.) I presume that Order LXV. rule 1 applies to the trial of a remit- ted action before a County Court judge and a jury. A County Court judge had power to certify under the 30 & 31 Vict. c. 142. ( Taylor v. Cass, L. R. 4 C. P. 614 ; 17 W. R. 860 ; 20 L. T. 667. But though it was held formerly that an under-sheriff executing a writ of inquiry was a " judge " within that Act ( Craven v. Smith, L. R. 4 Ex. 146 ; 38 L. J. Ex. 90 ; 17 W. R 710 ; 20 L. T. 400), yet it would seem that such an assessment of damages is not the trial of " any action, cause, matter or issue " by a jury ; that the costs do not therefore necessarily follow the event ; but that the judge at chambers has after the return to the writ discretionary power to deprive the plaintiff of costs. ( Gath v. LTowarth, Weekly Notes, 1884, p. 99 ; Bitt. Ch. Cas. 79.) A master to whom an action is referred with the powers of a judge atNisiPrius, may, in his award, make any order as to costs, not inconsistent with the terms of the submission. (Bedwell v. Wood, 2 Q. B. D. 626 ; 36 L. T. 213.) It is, however, usual in references to give the arbitrator express power over the costs. I can only find one case reported in which an action of libel has been referred. {Jones v. Young, 2 H. & C. 270 ; 32 L. J. Ex. 254.) Special Costs. Application for any special costs, such as those of shorthand writer's notes, or of a commission abroad, or of a special jury, or of photographic copies of the libel, should be made when judgment is delivered. [*369] No order will be made as to such costs after the judgment has been drawn up ; they must be borne by the party (349 1* 278 COSTS who has incurred thorn. (Ashworth v. Outram, 9 Ch. D. 483 ; 27 W. R. 98 ; 39 L. T. 441 ; Executors of Sir Rowland Hill v. Metro- politan District Asylum, 49 L. J. Q. B. 668 ; 43 L. T. 462 ; W. N. 1880, p. 98 ; Davey v. Pemberton, 11 C. 1>. (N. S.) 629.) To enter- tain such an application would substantially be to rehear the cause. (In re St. JYazaire Co., 12 Ch. D. 88 ; 27 W. R. 854 ; 41 L. T. 110.) Costs of Separate Issues. By Order LXV. rule 2, when issues in fact and law are raised upon a claim or counterclaim, the costs of the several issues respec- tively, both in law and fact, shall, unless otherwise ordered, follow the event. Under the former rule it was decided that where the plaintiff joined several distinct causes of action in one suit, and succeeded as to some, and failed as to others, the word " event " must lie read distributively, and the defendant was entitled to tax his costs of the issues found for him, unless the Court or a judge otherwise ordered. (3Iyersv. Defries, 5 Ex. D. 15, 180 ; 48 L. J. Ex. 446 ; 49 L. J. Ex. 266 ; 28 W. R. 258,406 ; 41 L. T. 659 ; 42 L. T. 137 ; Davidsonx. Gray, 5 Ex. D. 189, n. ; 40 L. t. 192 ; (C. A.) 42 L. T. 834.) So if plaintiff was nonsuited as to one cause of action, but succeeded on another. .(Abbott v. Andrews, 8 Q. B. D. 64S ; 51 L. J. Q. B. 641; 30 W. R. 779.) But there was formerly great difficulty in inducing a taxing-master to apportion the costs of the various issues arising out of the same cause of action. (See James v. Brook, 16 L. J. Q. B. 198 ; Prudliomme v. Fraser, 2 A. & E. 645 ; Goodburne v. Bowman, 9 Bing. 667 ; Biddulph v Chamberlayne, 17 Q. B. 351 ; Reynolds v. Harris, 3 C. B. N. S. 267 ; 28 L. J. C. P. 26 ; Skinner v. Shoppee, et vx., 6 Bing. N. C. 131 ; 8 Scott, 275 ; Empson v. Fairfax, 8 A. & E. 296 ; 3 N. & P. 385 ; Harrison v. Bush, 5 E. & B! 344 ; 25 L. J. Q. B. 99 ; 2 Jur. N. S. 90.) The judges seemed to think it was impossible to apportion costs with such minuteness. (See per Bramwell, L. J., in 4 Q. B. D. at p. 612.) If the taxing- master adopted some rough and readv method of apportionment (as in Knight v. Pursell, 49 L. J. Ch. 120 ; 28 W. R. 90 ; 41 L. T. 581), this was considered all that could be expected of him. But now the above rule is imperative. Hence, in future, if a defendant in an action of defamation both justifies and pleads privilege, and fails on the first plea and wins on the second, the plaintiff must [*370] pay the general costs of the action, for he ought never to have brought it"; but all extra costs occasioned by the plea of justification must be paid by the defendant, unless the judge at the trial makes an order to the contrary. There are of course practical difficulties in the way of such a taxation. It is difficult for the master, who was not at the trial, to determine whether it was, or was not, solely in consequence of the plea of justification that a particular witness was subpoenaed, or a particular page of the brief prepared. The plan adopted is to tax the costs of the action generally in favour of the defendant, and then deduct such sum as the plaintiff can prove to have been occasioned by the (350) COSTS. 279 plea of justification. And so in other eases where several distinct issues are raised. (See Sparroio v. Hill(C A.), 8 Q. B. J). 479 ; 50 L. J. Q. B. 675 ; 29 W. R. 705 ; 44 L. T. 917.) Payment into Court. Money cannot now be paid into Court in any action of libel or slander without admitting the plaintiff's cause of action ; no defence can be pleaded at the same time. (Order XXII. rule 1.) ffawkesley v. Bradshaw (C. A.), 5 Q. B. D. 302 ; 49 L. J. Q. B. 333 ; 28 W. R. 557 ; 42 L. T. 285, is no. longer law. If the plaintiff accepts the sum paid into Court in satisfaction of his claim, lie must give the defendant notice to that effect, and may then proceed to tax his costs, and in case of non-payment within forty-eight hours may sign judgment for his costs. But even in this case the plaintiff is subject to the general jurisdiction of the Court, and may be deprived of his costs, if the whole action was useless or malicious, (Broad- hurst v. Willey, Weekly Notes, 1876, p. 21 ; Nichols v. Evens, 22 Ch. D. Gil ; 52 L. J. Ch. 383 ; 31 W. R. 412 ; 48 L. T. 66.) If the plaintiff does not accept the sum paid into Court, but continues his action for damages tdtra, he will recover the whole of his costs of the action should the jury deem the amount paid into Court insufficient ; if, on the other hand, they think it sufficient, the defendant will be entitled to the whole costs of the action (Langridge v. Campbell, 2 Ex. D. 281 ; 46 L. J. Ex. 277 ; 25 W. R. 351 ; 36 L. T. 64 ; Goutard v. Carr (C. A.), 13 Q. B. D. 598, n. ; 53 L. J. Q. B. 55, 467, n. ; 32 W. R. 242) ; unless the Court or a judge think fit to make a special order that the plaintiff shall have his costs of the action up to the time when the money was paid into Court, and the defendant shall have only his costs incurred after that time, as in Buchton v. Higgs, 4 Ex. D. 174 ; 27 W. R. 802 ; 40 L. T. 755 ; and see The William Symington, 10 P. D. 1 ; 51 L. T. 461. [* 371] Couttterclaim. It is very seldom that there is a counterclaim in an action of libel or slander ; but whenever there is, its presence always complicates the question of costs. In an action for libel or slander there can be no set-off, as the damages claimed are unliquidated ; in other words, the counterclaim is not a defence to the plaintiff's action, but a cross-action by the defendant against the plaintiff. It is clear, moreover, that the County Courts Act, 1867, does not apply to actions of libel or slander, nor to counterclaims of anv kind. (Blake v. Appleyard, 3 Ex. D. 195 ; 47 L. J. Ex. 407 ; 26 W. R. 592.) It follows, therefore, that where the plaintiff's claim is either for libel or slander, and the defendant sets up any counterclaim, and both recover, then, as Brett, L. J., says in Baines v. Bromley (V. A.), 6 Q. B. D. at p. 695 ; 50 L. J. Q. B. 465 ; 29 W. R. 706 ; 44 L. T. 915, "the proper principle of taxation, if not otherwise ordered, is to take the claim as if it and its issues were an action, and then to (351) 280 COSTS. take the counterclaim and its issues as if it were an action, and then to give it the allocatur for costs for the balance in favour of the litigant in whose favor the balance turns. In such a ease where items are common to both actions the master would divide them." [This dictum, is in accordance with the earlier decisions in Cole, Marchant <& Co. v. Firth and another, 4 Ex. D. 301 ; 40 L. T. 857 ; Davidson v. Gray, Barrow <£• Co., 5 Ex. D. 189, n. ; 40 L. T. 192 ; (C. A.) *42 L. T. 8:54 ; and Stooke v. Taylor, 5 Q. B. D. 569 ; 49 L. J. Q. B. 857 ; 29 W. R. 49 ; 43 L. 208 ; and has since been recognized as good law in Re Brown, Ward v. Morse (C. A.), 23 Ch. D. 377 ; 52 L. J. Ch. 324 ; 31 W. R. 936 ; 49 L. T. 68 ; and in Lowe v. Holme and another, 10 Q. B. D. 286 ; 52 L. J. Q. B. 270 ; 31 W. R. 4<>0. It is, however, apparently in conflict with llallinan v. Price, 27 W. R. 490 ; 41 L. T. 627 ; and Waring v. Pearman, 32 W. R. 429 ; 50 L. T. 633. The counterclaim in Jjund v. Campbell and others (C. A.), 14 Q. B. D. 821 ; 54 L. J. Q. B. 281 ; 33 W. R. 510, was really a set off.] If the plaintiff recover any sum at all, even a farthing, and the defendant nothing on his counterclaim, then the plaintiff, in the absence of any special order to the contrary, is entitled to the whole eosts of the action. {Potter v. Chambers, 4 C. P. D. 457 ; 48 L. J. C. P. 274 ; 57 W. R. 414.) If neither plaintiff nor defendant recover anything on either claim or counterclaim, the plaintiff pays the general costs of the action, including those com- mon to both claim and counterclaim, for he commenced the litiga- tion ; the defendant pays only such costs as the plaintiff can prove to have been occasioned by the counterclaim. [Saner v. Hilton, 11 Ch. D. 416 ; [* 372] 48 L. J. Ch. 545 ; 27 W. R. 472 ; 40 L. T. 134 ; 3/asou v. Brentini (C. A.), 15 C. II. D. 2S7 ; 29 W. R. 126 ; 42 L. T. 726 ; 43 L. T. 557.) If, however, the action be not of libel or slander, but be such that it could have been brought in the County Court, then the plaintiff cannot, without a special order, recover any costs at all from the defendant, unless the damages exceed 20/. in an action of contract, or 10/. in an action of tort ; while the defendant is entitled to recover on his counterclaim in libel or in slander all the costs of his counterclaim, if he recover onlv a farthing thereunder. [Staples v. Young, 2 Ex. D. 324 ; 25 W.'R. 304 ; Chaff Ad v. Sedgwick, 4 C. P. D. 459 ; 27 W. R. 790 ; 41 L. T. 438 ; Rutherford v.'Wilkie, 41 L. T. 435 ; Ahrbecher cb Son v. Frost, 17 Q. B. D. 606 ; 55 L. T. 264.) Remitted Action. When an action of libel or slander is remitted to the County Court, under sect. 10 of the County Courts Act, 1867 (30 & 31 Vict. c. 142), the costs will follow the event, unless the judge at the trial make any order to the contrary (County Courts Act, 1846, 9 & 10 Vict. c. 95, s. 98) ; the costs of the proceedings in the Supe- rior Court will be allowed according to the scale in use in the Supe- rior Court ; the costs incurred subsequent to the order of reference according to the County Court scale. (352) COSTS. 281 Costs of former Trial. The costs of the first trial abide the event of the second, unless any special order be made when the new trial is granted, <>r at the second trial. (Creen v. Wright, 2 ('. P. 1). 354 ; 40 L. J. ('. I\ 427 ; 25 W. R. 502 ; 30 L. T. 355 ; Meld v. Great Northern Bail. Co., 3 Ex. D. 201 ; 20 W. 11. 817 ; 39 L. T. 80.) Husband and "Wife. If a married woman having general separate estate fail in an action of libel or slander, she may he condemned in costs, although her husband was joined with her as a co-plaintiff or a co-defendant. (Newton ami Wife v. Hoodie and others, 4 C. B. 359 ; 18 L. J. C. P. 73 ; 3Iorris v. Freeman and Wife, 3 P. D. 05 ; 47 L. J. P. I). & A. 79 ; 27 W. R. 02 ; 39 L. T. 125 ; and see the remarks of Jessel, M. R., in Besantv. Wood, 12 Ch. D. 030 ; 40 L. T. 453 ; and sects. 1 and 13 of the Married Women's Property Act, 1882, post, pp. 396, 401.) Public Bodies. [*3~3] If the officers of any corporation, local board, company, or other public body be libelled or slandered, and take either civil or criminal proceedings to clear themselves, the costs must not be paid out of the corporate funds, which were contributed for otherpur- poses. If, however, it be the company itself that is libelled or slan- dered, the directors may, of course, employ the company's funds in its own defence. Illustrations. The house surgeon of the Marylebone workhouse was dismissed by the guard- ians in consequence of differences which had arisen between him and the honor- ary physician of the parish infirmary. The house surgeon thereupon brought actions of libel and slander against the honorary physician, and also against the assistant surgeon of the workhouse. He failed in both, became bankrupt, and disappeared. The guardians thereupon paid the costs incurred by their officers out of the poor's-rates ; and the poor-law auditors allowed the payments. But Knight-Bruce, V.-C, held such payment a breach of trust, and ordered those guardians who had authorized it to refund the amount out of their own pockets. Attorney-General v. Compton, 1 Younge & Collyer, Eq. 417. A Turkish railway company was managed by English directors. Ellissen wrote a letter to Lord Stanley (then Secretary for Foreign Affairs), charging the directors with mismanaging the affairs of the company and misappropriating its funds. At a general meeting of the shareholders a resolution was passed requesting the directors " to adopt the strongest possible measures to put an end to such mischievous action." The directors accordingly prosecuted Ellissen for libel. "Wickens, V-C, held that the costs of such prosecution should not be paid out of the assets of the company, though he would not, tinder the circum- stances, order the directors to repav'anv costs already so paid. Pickering-Y. Stephenson,!,. R. 14 Eq. 322; 41 L. J. Ch. 493 ; 20 W. R. 654; 26 L. T. 608. A former employe of the Army and Navy Stores took to walking up and fS53) 282 COSTS. down in front of their door, carrying sandwich-boards placarded with violent attacks upon the society, denouncing it as " a swindle, and counterfeit," and also upon the directors. Held, that as these libels were clearly calculated to injure the credit of the society, and to diminish its business, the costs of a prosecution might rightly be paid out of the funds of the society. Studdert v. Qrosvenor, 33 Ch. D. 528; 55 L. J. Ch.689 ; 34 W. R. 754; 55 L. T. 171; 50 J. P. 710. As to costs in criminal proceedings, see, as to indictments, post, p. 609; as to criminal informations, post, p. 014. (354) L* 3 ;4\ . CHAPTER XIII. THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. Iisr 1879, Mr. Hutchinson moved for the appointment of a select committee of the House of Commons to inquire into the law of news- paper libel. The committee was appointed, but owing to the short time at its disposal, did not report. It was re-appointed in 1880, and reported on July 14th,- 1880. A copy of the report will be found on pp. 662-3, of the first edition of this book. In 1881, a Bill was introduced, embodying the recommendations of the com- mittee, and passed hurriedly through both Houses, in spite of the protests of Lord Redesdale. There was certainly no adequate dis- cussion of the measure in either House. Mr. Baron Pollock says of it in Ex parte Hubert ILirter and Son, 47 J. P, 724 ; 15 Cox, C. C. 166 ; 74 Law Times (Newspaper), p. 229: " That act was a sort of settlement between the public on the one hand and newspaper proprietors on the other. On the one hand, proprietors of newspapers are to be registered, and on the other hand, they are protected by the Act from what the legislature deemed to be not necessarily trivial, but improper or unnecessary prosecutions for libel." If so, I think the public have got the best of the bargain. The former statutes requiring registration (10 Anne, c. 19, ss. Ill —114; 38 Geo. III. c. 78; aiuTe & 7 Will. IV. c. 76) had all been repealed in 1870 by the 33 & 34 Vict. c. 99. (355) 284 THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. [44 & 45 Vict. c. 60.] £* 3r& ] ARRANGEMENT OF SECTIONS. Section. 1. Interpretation. 2. Newspaper reports of certain meetings privileged. 3. No prosecution for newspaper libel without fiat of Attorney-General. 4. Inquiry by Court of Summary Jurisdiction as to libel being for public benefit or being true. 5. Provision as to summary conviction for libel. 6. 22 & 23 Vict. c. 17, made applicable to all libels. 7. Board of Trade may authorise registration of the names of only a portion of the proprietors of a newspaper. 8. Register of newspaper proprietors to be established. 9. Annual returns to be made. 10. Penalty for omission to make annual returns. 11. Power to make return on transfer. 12. Penalty for wilful misrepresentation in or omission from return. 13. Registrar to enter returns in register. 14. Fees payable for registrar's services. 15. Copies of entries in and extracts from register to be evidence. 16. Recovery of penalties and enforcement of orders. 17. Definitions. 18. Provisions as to registration of newspaper proprietors not to apply to newspaper belonging to a joint-stock company. 19. And not to extend to Scotland. 20. Short title. Schedules. (356) THE NEWSPAPER LIBEL AND REGISTPvATION ACT, 1881. 285 1*376] 44 & 45 Vict. c. 60. A?} Act to amend the Law of Newspaper Libel, and to provide for the Registration of Newspaper Proprietor*. [27th August, 1881.] Whereas it is expedient to amend the law affecting civil actions and criminal prosecutions for newspaper libel : And whereas it is also expedient to provide for the registration of newspaper proprietors : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. Interpretation.]— In the construction of this Act, unless there is anything in the subject or context repugnant thereto, the several words and phrases hereinafter mentioned shall have and include the meanings following ; (that is to say.) The word " registrar " shall mean in England the registrar for the time being of joint stock companies, or such person as the Board of Trade may for the time being authorise in that behalf, and in Ireland the assistant registrar for the time being of joint stock companies for Ireland, or such person as the Board of Trade may for the time being authorise in that behalf. The phrase " registry office " shall mean the principal office for the time being of the registrar in England or Ireland, as the case may be, or such other office as the Board of Trade may from time to time appoint. The word " newspaper " shall mean any paper containing public news, intelligence, or occurrences, or any remarks or observations therein [sic; an obvious misprint for [* 877 J " thereon"] printed for sale, and published in England or Ireland periodically, or in parts or numbers at intervals not exceeding twenty-six days between the publication of any two such papers, parts, or numbers. Also any paper printed in order to be dispersed, and made public weekly or'oftener, or at intervals not exceeding twenty-six days, con- taining only or principally advertisements. The" word " occupation " when applied to any person shall mean his trade or following [qu. calling], and if none, then his rank or usual title, as esquire, gentleman. The phrase " place of residence " shall include the street, square, or place where the person to whom it refers shall reside, and the num- ber (if any) or other designation of the house in which he shall so reside. The word " proprietor " shall mean and include as well the sole proprietor of any newspaper, as also in the case of a divided pro- prietorship the persons who, as partners or otherwise, represent and (357) 286 THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. are responsible for any share or interest in the newspaper as be- tween themselves and the persons in like manner representing or responsible for the other shares or interests therein, and no other per- son. The above definition of a "newspaper" is taken almost verbatim from Schedule (A.) of the 6 & 7 Will. IV. c. 76, which was repealed by the 33 & 34 Vict. c. 99. It was held that a paper or pamphlet, though printed for sale, and containing public news, was not " a newspaper" within the former Act, if published periodically at in- tervals exceeding twenty-six days. (Alt.- Gen. v. Bradbury and Evans (1851), 7 Exch. 97 ; 21 L." J. Ex. 12 ; 16 Jur. 130.) 2. Newspaper reports of certain meetings privileged.} — Any re- port published in any newspaper of the proceedings of a public meeting shall be privileged, if such meeting was lawfully con- vened for a lawful purpose and open to the public, and if such report was fair and accurate and published without malice, and if the publication of the matter [*378] complained of was for the public benefit ; provided always, that the protection intended to be afforded by this section 'shall not be available as a de- fence in any proceeding, if the plaintiff or prosecutor can show that the- defendant has refused to insert in the newspaper in which the report containing the matter complained of appeared a reasonable letter or statement of explanation or contradiction by or on behalf of such plaintiff or prosecutor. This section was inserted in consequence of the decision of the Court of Appeal in Purcell v. \Sowler, 2 0. P. D. 215 ; 46 L. J. C. P. 308 ; 25 W. R. 362 ; 36 L. T. 416 ; 41 J. P. 789, in which it was decided that a fair and accurate report published in a local newspa- per of the proceedings at a meeting of a board of guardians was not privileged. It will, I presume, protect the printer and reporter, as well as the proprietor and editor of a newspaper ; although the con- cluding proviso seems to contemplate that the defendant will have the power to admit or exclude a letter of explanation at his pleasure. Prior to this Act no report of any public meeting was privileged, merely on the ground that it was an honest and accurate report of what had really taken place. (Ante, p. 266.) The defendant had to prove either that the words he had reported were true, or that they were bond fide comments on a matter of public interest. I do notthink that this section will afford much protection to the newspapers. The privilege conferred is very cautiously guarded. The defendant will have to prove — (a)' That the meeting was a public meeting, (b) Lawfully convened (c) For a lawful purpose, id) And open to the public ; e) That the report was fair and accurate f) And published without malice, (358) REPORTS OF PUBLIC MEETINGS. 287 (g) And that the publication of the matter complained of was for the public benefit ; (h) And, after proving all these facts, the defendant will lose liis privilege if the plaintiff or prosecutor can show that the de- fendant refused, when asked, to insert a reasonable letter of explanation or contradiction. I think that at common law, without this section at all, a report which complied with all the above conditions would have been held no libel ; for I presume no publication will be held to be " for the [*379] public benefit," unless it relate to some matter of public in- terest within the rules laid down on pp. 40 — 62. (a), (d) Public Meeting. What is " a public meeting," "open to the public"? There are, as yet, no decisions reported on this point ; but I am informed that Lord Coleridge, C J., expressed an opinion at the Swansea Winter Assizes, 18S6, in a case of Hughes v. Gibson, that a meeting of a board of guardians was not such a public meeting, although reporters were admitted. If so, Mr. Sowler would be held liable just as he was before this Act. It follows that no meeting of a town council or vestry is a public meeting within this section, or any other meeting at which the pub- lic are present merely as spectators. It is not enough that any respectable citizen could in fact gain admittance to the room, if when admitted he could neither speak nor vote, nor take any part, legiti- mately, in the proceedings. At the same time, it is probably giving too narrow an effect to the section to limit it to meetings which are open to the public by law, and not by the permission of the conveners. There are very few meetings to which the public have a right to insist on admission. So, too, if the meeting is open to the bulk of the community, it would probably be deemed a public meeting, though some few were excluded — e.g., where a meeting is summoned of the electors of a borough, or even of the ratepayers of a particular parish. But I presume that a meeting to which o\\\y Liberals or only Conserva- tives were invited, or a meeting of the members of some religious denomination, would not be within the section. Meetings of credit- ors, meetings of shareholders in a company, &c, are clearly not " public meetings." Again, is a meeting " open to the public " when any one may enter, but only on payment of some fixed charge for admission ? The legislature, it will be observed, is not content with the phrase, " a public meeting " ; it goes on to say, " and open to the public." A lecture or concert, for which seats are reserved long beforehand at high prices, could hardly be called a public meeting. But I incline to think that if the meeting was public in all other respects, the mere fact that a small charge was made for admission will not take the case out of the section. (See Langrish v. Archer, 10 Q. B. D. 44 ; 52 L. J. M. C. 47 ; 31 W. R. 183 ; 47 L. T. 548 ; 47 J. P. 295 ; 15 Cox, C. C. 194.) (359) 288 THE NEWSPAPER LIBEL AM) REGISTRATION ACT, 1881. [ *380] (c) For a Lawful Purpose. ■ Next, the defendant must show that the meeting " was lawfully- convened for a lawful purpose." Seditious or illegal meetings must not be reported, apparently. Seditious meetings are prohibited by 39 Geo. III. c. 1!) (repealed i i part by 32 & 33 Vict. c. 24, s. 1), and by 57 Geo III. c. 19 (repealed in part by 30 & 37 Viet. c. 91, s. 1). Meetings which are convened for the bon a fide purpose of reforming our laws by petitioning parliament, or by other lawful means, are not seditious ; but whenever persons assemble to bring the constitu- tion into contempt, and to excite discontent, and disaffection against the king's government, it is an illegal meeting. (R. v. Hunt and others, 3 B. & Aid. 566 ; lied ford v. Birley, 3 Stark, at p. 103.) So, if persons meet for a purpose which, if executed, would make them rioters, but separate without carrying their purpose into effect, this is an unlawful assembly, though they have done nothing. [Rex v. Birt and others, 5 C. & P. 154.) A meeting called " to adopt pre- paratory measures for holding a national convention " was held an illegal meeting in Rex v. Fursey, 6 C. & P. 81. Again, the manner of holding the meeting may render it an unlawful meeting. Thus, any assembly is unlawful which meets under circumstances likely to endanger the peace of the neighbour- hood ; and, in order to decide whether an assembly is or is not unlawful,' the jury may take into consideration the tumultuous way in which the meeting assembled, the hour at which it met, the excite- ment which prevailed at it, the inscriptions and devices on banners and flags displayed, the language used by the persons assembled, and by those who addressed them, and even what the chairman of this meeting said and did at a previous meeting, convened for a purpose avowedly similar. (R. v. Hunt and others, 3 B. & & Aid. 566.) But the circumstances must be such as would alarm not fool- ish or timid persons only, but also persons of reasonable firmness and courage. {Reg. v. Vincent, 9 C. & P. 91, 109.) A procession with banners is not necessarily unlawful, even though it result in a breach of the peace ; and, where the promoters of a meeting assemble with a lawful purpose, and with no intention of carrying out such purpose in any unlawful manner, the fact that they know that their meeting will be opposed, and have good reason to suppose that a breach of the peace will be committed by their opponents, does not make their meeting unlawful. (Beatty and others v. Gdlbanks, 9 Q. B. D. 308 ; 51 L. J. M. C. 117 ; 31 W. R. 275 ; 47 L. T. 194 ; 46 J. P. 789 ; 15 Cox, C. C. 138. But see O'Kelly v. Harvty, 15 Cox, C. C. 435.) [* 381] (b) Lav-full y convened. Not only must the meeting be held " for a lawful purpose," but it must be " lawfully convened." It can hardly be expected that the editor of a newspaper can know exactly how and by whom the meeting was convened. This requirement must, I think, be intended only to meet cases whei'e it is notorious that the meeting is being f'M'O) REPORTS OF PUBLIC MEETINGS. 289 convened in defiance of the authorities, or in violation of the Acts against tumultuously petitioning Parliament. (13 Car. II. c. 5; 1 Will. & M. Bess. 2, c. 2 ; and 57 Geo. III. c. ID, s. 2:!.) Thus, if the Chief Commissioner of Police did uo1 exceed his powers in forbidding any public meeting in Trafalgar Square on November 9th, 1886, a report of any meet inn' held in spite of his orders would not be privileged. Whether a meeting would be within the section which was summoned for a lawful purpose to meet in Dodd Stre< t. I cannot say ; Dodd Street being a public highway, though a cul tie sac, and therefore held to be an improper place for any meeting. (e) The report must be fair and accurate. It is not necessary that the report should be verbatim ; nor is absolute accuracy essential so long as the report is substantially correct. A few slight accidental errors will not destroy the priv- ilege, provided the Avhole report, as published, produces materially the same effect on the mind of the reader as an absolutely correct. report would have done. "It is not to be expected that in dis- charging this duty of a public journalist he will always be infallible," sa} r s Cockburn, 0. J., in Woodgate v. Ridout, 4 F. & F. at p. 217. (f) Without Malice. This means " without express malice," of course. The privilege created by this section is only qualified, not absolute. (g) The Publication of the Matter complained of must be for the Public Benefit. This is a most important safeguard. It is not sufficient that a report of the meeting should be for the public benefit ; it must be shown that the publication of the very words complained of was for the public benefit. This was clearly pointed out by the Divisional Court in Pankhurst v. Sowler, 3 Times L. R. 193. In that case, a speaker at a public election meeting thought fit to make a personal attack on a gentleman who was standing for another constituency 200 miles [* 382] off. The wdiole speech was reported in the Man- chester Courier. The judge at the trial directed the jury in terms which might be understood as meaning that the only question for the jury was this : Is it for the public benefit that reports of elec- tion meetings should be published in newspapers ? His lordship did not make it clear to the jury that the Act only protected the news- paper when it was for the public benefit that the actual libel com- plained of should be published broadcast, hence the Court granted a new trial. , Proprietors of papers always contend, as Mr. Sowler did in this very case, that in the hurry of setting-up the type for a daily paper it is practical^ impossible' for the editor to read through the copy ; that he ought'not to be expected to edit the report ; that so long as the meeting is one that ought to be reported, and the report pre- 19 lib. & slan. (361) 290 THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. sented to the public is fairly accurate, nothing more can be required. But this is a view which both the Legislature and the Law Courts steadily refuse to adopt. The editor of a paper must edit the whole paper, or his employers must take the consequence. It clearly is not for the public benefit that every word uttered at a public meet- ing should l;e printed and widely disseminated. For instance, if anything seditious, blasphemous, or obscene be uttered at the meet- ing, that must be omitted from the report. {Steele v. Brannan, L. R 7 C. P. 201 ; 41 L. J. M. C. 85 ; 20 W. R. 607 ; 2G L. T. 509.) Similarly, if anything defamatory be said of a private citizen, not a public man, the passage must be excised from the report before publication. So, too, if an unfair attack be made on a public man. It cannot be for the public benefit that our newspapers should print and circulate an unfair attack made on a public servant in the heat of the moment at an excited political meeting. A fair attack on his public conduct is no libel (see code, p. 32), and may therefore be published with impunity. Already, since the decision in Pankhurst v. Sowler (December 11, 1886), an agitation has commenced for the repeal of this clause of the section. But no reasons which appear to me adequate are assigned for such a change in the law. The consequence of pub- lishing in the papers calumnies uttered at some political or parish meeting may be most injurious to the person calumniated. The original slander may not be actionable per se, or the communication may be privileged, so that no action lies against the speaker ; more- over, the meeting may have been thinly attended, and the audience may have known that the speaker was not worthy of credit. But it would be a terrible thing for the person defamed if such words could therefore be printed and published to all the world, and remain in a permanent form recorded against him, without any remedy being permitted him for the injury [* 383] caused by their extended circulation. (See the remarks of Lord Campbell in Davison v. Duncan, 7 E. & B. 231 ; 26 L. J. Q. B. 106 ; 3 Jur. N. S. 613 ; 5 W. R. 253 ; 28 L. T. (Old S.) 265.) The existing law appears to me to afford sufficient protection to newspaper proprietors. They ought surely to be liable to a civil action whenever they publish a report defamatory of the plaintiff on a matter in which the public have no interest or concern. No one can desire to encourage that mischievous prying into the private affairs of others, which already disgraces a portic:i of the London press. If, however, the matter is one of public interest, then all fair bona fide comments thereon are held not to be libellous, and no action lies, either for their original utterance or for their repetition in the report. And, surely, if unfair and maid fide comments appear in a news- paper, the owner ought to be held liable for the injury thus done by his subordinates. In criminal proceedings, newspaper proprietors can avail themselves of the defences allowed them by Lord Camp- bell's Act, which appear to me sufficient for the purpose. (h) A reasonable Letter must be inserted. If the defendant is requested to insert in his paper a reasonable (3G2) REPOBTS OF PUBLIC MKKTINCS, 291 letter or statement of explanation or contradiction, and refuses to do so, the privilege is Lost. The legislature, I presume, regarded such a refusal as cogenl evidence of malice, [f so, this clause was perhaps not strictly necessary, aa the section 1ms already provided thai the report must be "published without malice." The presence of this ^express proviso, however, settles the matter beyond doubt. If there be such a refusal, the case is outside the section, and no question can be left to the jury as to malice or no malice. Otherwise it is but a poor satisfaction to a plaintiff to allow him to write "a reasonable letter of contradiction." Many who read the report will not read the plaintiff's letter, and those who do probably will not believe it ; they will say : " Oh, of course he denies it."' It will often he difficult, too, to decide what is and what is not " a rea- sonable letter." And then the speaker at the meeting, or some friend of his, will be sure to write a letter in reply to the plaintiff's, re-asserting the truth of the original charge, and probably adding a judicious selection of fresh accusations, and this letter also the editor will be bound in fairness to insert. And thus will arise a newspaper warfare which will only prolong and aggravate the mis- chief caused by the report. 3. No prosecution for newspaper libel without fat of Attor- ney-General.} — No criminal prosecution shall be commenced [*384] against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper for any libel published therein, without the written fiat or allowance of the Director of Public Prosecutions in England or Her Majesty's Attorney-General in Ireland being first had and obtained. This section does not apply to any criminal information, whether ex officio or otherwise. (JR. v. Yates, 11 Q. B. D. 750 ; 52 L. J. Q. B. 778 ; 48 J. P. 102 ; 15 Cox, C. C. 272 ; Yates v. The Queen (C. A.), 14 Q. B. D. G48 ; 54 L. J. Q. B. 258 ; 33 W. R. 482 ; 52 L. T. 305 ; 49 J. P. 436 ; 15 Cox, C. C. G86.) The Director of Public Prosecutions has an absolute discretion under this section, to grant or withhold his fiat as he thinks fit. He will not grant it where a civil action will meet all the requirements of the case. The Court has no power to control his discretion ; no mandamus therefore will issue to compel him to grant his fat. (Ex parte Hubert Hurler cfJ Son, 47 J. P. 724 ; 15 Cox, C. C. 166 ; 74 Law Times (Newspaper), p. 229.) The fat need not name the actual defendant ; it is sufficient if it authorize the prosecution of the pro- prietor, publisher, or editor of such and such a paper ; the Director cannot tell who that may be. (Reg. pros. Tyler v. Bradlaugh (Nov. 6th, 1882), Times for Nov. 7th, 1882.) The section, it will be observed, is confined to the proprietors, pub- lishers, and editors of newspapers. Possibly, the printer of a news- paper is also included in the phrase " any person responsible for the publication." It would have been well if the section had included books as well as newspapers, so that a master printer, a bookseller, or the owner of a circulating library might no longer be liable to (363 1 292 THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. criminal proceedings for innocently publishing a volume which, as he subsequently Learns, contains a libel. And note that no protection is offered to the actual composer and author of a libel published in a newspaper, not even to a reporter on the staff of the paper. 4. Inquiry by court of summary jurisdiction as to libel being for public betiefit or being true.] — A court of summary jurisdiction, upon the hearing of a charge against a proprietor, publisher, or editor, or any person responsible for the publieation of a newspaper, for a libel published therein, may [* 385] receive evidence as to the publication being for the public benefit, and as to the matters charged in the libel being true, and as to the report being fair and accurate, and published without malice, and as to any matter which under this or any other Act, or otherwise, might be given in evi- dence by way of defense by the person charged on his trial on indictment, and the court, if of opinion after hearing such evidence that there is a strong or probable presumption that the jury on the trial would acquit the person charged, may dismiss the case. This section was passed in consequence of the decision in Reg. v. Sir Robert Car den, 5 Q. B. D. 1 ; 49 L. J. M. C. 1 ; 28 W. R. 133 ; 41 L. T. 504 ; 14 Cox, C. C. 359 ; 44 J. P. 119, where it was held that a magistrate before whom a writer is charged with an offence against sect. 5 of the 6 & 7 Vict. c. 96, had no jurisdiction to receive and record evidence of the truth of the libel ; as such a defence could only be raised at the trial upon a special plea framed in ac- cordance with that Act. The section only applies to the proprietor, publisher, editor, and printer of a newspaper ; hence the actual composer of the libel, and all persons concerned in any libel which has not appeared in a newspaper, are still bound by the former pro- cedure ; as to which, zee post, p. 591. The section only enables a magistrate to receive and record such evidence as would be admissible, if proper pleas be filed, on the trial of an indictment for the same libel. It does not make evidence admissible to prove the truth of a blasphemous, obscene, or sedi- tious libel. Thus, where upon an application to a magistrate to commit the proprietor of a newspaper for trial for a seditious libel the defendant's counsel tendered evidence of the truth of the libel, and that its publication was for the public benefit, and the magis- trate refused to receive the evidence, it was held that such evidence was rightly rejected. [Ex parte Brien, 12 L. R. Ir. 29 ; 15 Cox, C. C. 180.) If the magistrate decide to dismiss the case, the prosecutor may still, under sect. 2 of the Vexatious Indictments Act (22 & 23 Vict, c. 17), which is made applicable to every libel by sect. 6 of this Act, require the. magistrate to bind him over to prosecute, and the mag- istrate thereupon is bound to take the prosecutor's recognizance and forward the depositions to the Court in which the indictment will be preferred. But in that case the prosecutor, if unsuccessful, (364) CRIMINAL PROCEEDINGS. 293 will have to pay all the defendant's costs. .(See 30 & 31 Vict. c. 35, s. 2.) [* 386] 5. Provision as to summary conviction for libel.] — If a court of summary jurisdiction upon the hearing of ;i charge against a proprietor, publisher, editor, or any person responsible for the publication of a newspaper for a libel published therein is of opinion that though the person charged is shown to have been guilty the libel was of a trivial character, and that the offence may be ade- quately punished by virtue of the powers of this section, the court shall cause the charge to be reduced into writing and read to the person charged, and then address a question to him to the following effect : "Do you desire to be tried by a jury or do you consent to the case being dealt with summarily ?" and, if such person assents to the case being dealt with summarily, the court may summarily convict him and. adjudge him to pay a fine not exceeding fifty pounds. 42 & 43 Vict. c. 49.] — Section twenty-seven of the Summary Jurisdiction Act, 1879, shall, so far as is consistent with the tenor thereof, apply to every such proceeding as if it were herein enacted and extended to Ireland, and as if the Summary Jurisdiction Acts were therein referred to instead of the Summary Jurisdiction Act, 1848. If the libel was " of a trivial character," surely no fiat would be granted under sect. 3. It must be remembered, however, that the Director of Public Prosecutions only hears one side ; the police magistrate hears both sides. This procedure can only be adopted wher,e the defendant is the proprietor, printer, editor, or publisher of a newspaper within the meaning of this Act. The reporter or other the writer of the libel must, be committed for trial in the usual way. 6. 22 & 23 Vict. c. 17 made applicable to all libels.] — Every libel or alleged libel, and every offence under this Act, shall be deemed to be an offence within and subject to the provisions of the Act of the session of the twenty-second and twenty-third years of the reign of her present Majesty, chapter seventeen, entitled, " An Act to prevent vexatious indictments for certain misdemeanors." This section applies to all libels, whether published in a news- paper or not. Hence now, if criminal proceedings be taken for a libel contained in a newspaper, the case must be gone into four times — once by the director of public prosecutions before he grants his fiat ; next, before the magistrate, where evidence on both sides will probably be gone into (see sect. 4) ; then before the grand jury ; and, lastly, in open Court, before the petty jury. Surely it would have been far simpler and better to have abolished the remedy by indictment altogether, leaving the person defamed his (365) 294 THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. civil remedy only in all cases where the libel was not of so serious a character as to call for a criminal information. As to binding- over the prosecutor, see ante, p. 385. As to add- ing to the indictment counts for other libels not before the magis- trate, see R. pros. Tyler v. Bradlaugh, 47 L. T. 477 ; 15 Cox, C. C. 156, post, p. 595. 7. Board of Trade may authorise registration of the names of only a portion of the proprietors of a neivspaper.] — Where, in the opinion of the Board of Trade, inconvenience would arise or be caused in any case from the registry of the names of all the pro- prietors of the newspaper (eiiher owing to minority, coverture, absence from the United Kingdom, minute subdivision of shares, or other special circumstances), it shall be lawful for the Board of Trade to authorise the registration of such newspaper in the name or names of some one or more responsible " representative proprie- tors." This section is out of place. It should have come after sect. 10. (And see post, sect. 18.) Where it is desired to make a return of " representative proprie- tors " under this section, a statement should be sent to the registrar setting forth the circumstances which render it inconvenient to register the names of all the proprietors, and giving such informa- tion as will show that the proposed representatives are well able to n/eet any claims that may arise for libel or otherwise in connection with the management of the paper. The Board of Trade very properly require to be satisfied that the person put forward as the " representative proprietor " is " respon- sible " in every sense of the word. [*388] 8. Register of newspaper proprietors to be established.] — A register of the proprietors of newspapers as defined by this Act shall be established under the superintendence of the registrar. See the interpretation clause, sect. 1. 9. Annual returns to be made.] — It shall be the duty of the printers and publishers for the time being of every newspaper to make or cause to be made to the registry office on or before the thirty-first of July one thousand eight hundred and eighty-one, and thereafter annually in the month of July in every year, a return of the following particulars according to Schedule, A. hereunto an- nexed ; that is to say, (a.) The title of a newspaper : (b.) The names of all the proprietors of such newspaper together with their respective occupations, places of business (if any), and places of residence. The Act did not come into force till August 27th, 1881 ; although it requires registration before July 31st, 1881. Schedule A. is as follows : — (3G6) REGISTRATION. SCHEDULE A. 295 Return made pursuant to the Newspaper Libel and Registration Act, 1881. Title of the Newspaper. Names <>f the Proprietors. ( >ccupations of the Proprietors. Places of business (if any)of the Proprietors. Places of Residence of the Proprietors. The prescribed forms on which the returns are to be made will be sent, either stamped with the requisite fee stamps or unstamped, on application to the Registrar, Companies' Registration Office, Som- erset House, London, W.C. No charge is made for the forms ; but when stamped forms are required a Postal Order for the amount of the fee must accompany the application. A separate return will be required for each paper, though the same [*389] proprietor may own more than one. The person pre- senting the return for registration is required to sign his name and address on the front of it, probably with a view r to sect. 12. The printers are required to make the return because their name must be on the paper by the 2 & 3 Vict. c. 12, s. 2. 10. Penalty for omission to make annual returns.] — If within the further period of one month after the time hereinbefore ap- pointed for the making of any return as to any newspaper such return be not made, then each printer and publisher of such news- paper shall, on conviction thereof, be liable to a penalty not exceed- ing twenty-five pounds, and also to be directed by a summary order to make a return within a specified time. Such an order can be enforced in the manner provided by sect. 34 of the Summary Jurisdiction Act, 1879, that is, by ordering the person in default to pay a sum not exceeding 1/. for every day dur- ing which he is in default, or to be imprisoned until he make a return. 11. Power to rnahe return on transfer.] Any party to a transfer or transmission of or dealing with any share of or interest in any newspaper whereby any person ceases to be a proprietor or any new proprietor is introduced may at any time make or cause to he made to the registry office a return according to the Schedule B. here- unto annexed and containing the particulars therein set forth. Schedule B. is as follows : — (367) 296 THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. SCHEDULE B. Return made pursuant to the Newspaper Libel and Registration Act, 1881. Title of Newspaper. Names of Persons who cease to be Pro- prietors. Names of Persons who be- come Pro- prietors. Occupation p° rt fn . e 7 anv)ofnew Pr °P netors Proprietors Places of I Places of business (if Resi dence of new Proprietors [*390] It will be observed that this section is permissive merely. The transferee may register his name and address, or not, as he pleases. Hence a plaintiff or prosecutor can never be certain that the registered proprietor is the person liable for the publication complained of. No doubt the presumption would be that the per- son who was proprietor in July last was proprietor still ; but it will be open to him to prove at the trial, after all the costs have been incurred, that since July last he transferred his interest in the paper to some one else. (See post, sect. 15.) In a civil case this difficulty may be overcome by administering interrogatories. (See post, pp. 551 — 3.) But it would have been better if the legislature had made the " return according to Schedule B." compulsory on every transfer, and had further enacted that, till such return was registered, the former proprietor should remain liable for every- thing published in the newspaper. 12. Penalty for toilful misrepresentation in or omission from return.] — If any person shall knowingly and wilfully make or cause to be made any return by this Act required or permitted to be made in which shall be inserted or set forth the name of any person as a proprietor of a newspaper who shall not be a proprietor thereof, or in which there shall be any misrepresentation, or from which there shall be any omission in respect of any of the particu- lars by this Act required to be contained therein whereby such return" shall be misleading, or if any proprietor of a newspaper shall knowingly and wilfully permit any such return to be made which shall be misleading as' to any of the particulars with reference to his own name, occupation, place of business (if any), or place of residence, then and in every such case every such offender being convicted thereof shall be liable to a penalty not exceeding one hundred pounds. 13. Registrar to enter returns in register.] — It shall be the duty of the registrar and he is hereby required forthwith to register (368) REGISTRATION. 297 every return made in conformity with the provisions of this Act in a book to be kept for that purpose at the registry office and called "the register of newspaper proprietors," and all persons shall be at liberty to search and inspect the said hook from time to time dur- ing the [*391] hours of business ai the registry office, and any per- son may require a copy of any entry in or an extract from tin- book to' he certified by the registrar or his deputy for the time being or under the official seal of the registrar. On payment of one shilling, anyone may inspect both the returns for the 'present year and also the back returns, at Room No. 7, Somerset House. 14. Fees payable for registrar's services.'] — There shall he paid in respect of the receipt and entry of returns made in conformity with the provisions of this Act, and for the inspection of the registrar of newspaper proprietors, and for certified copies of any entry therein, and in respect of any other services to be performed by the registrar, such fees (if any) as the Board of Trade with the approval of the Treasury may direct and as they shall deem requisite to defray as well the* additional expenses of the registry office caused by the provisions of this Act, as also the further remuner- ations and salaries (if any) of the registrar^ and of any other per- sons employed under him in the execution of this Act, and such fees shall be dealt with as the Treasury may direct. The fees which the Board of Trade have, with the approval of the Treasurv, directed to be paid are as follows : — £ s. d. For the registration for the first time of any " representative proprietor " (sect. 7) On registration in other cases On the rendering of subsequent returns For inspection ...... For a copy of a return .... and a further fee of fourpence per folio to be charged if the copy exceeds three folios. For a certificate, a further fee of one shilling is charged for the stamp required by the Inland Revenue Commissioners. 15. 'Copies of entries in and extracts from register to be evidence.] — Every copy of an entry in or extract from the [* 392] register of newspaper proprietors, purporting to be certified by the registrar or his deputy for the time being, or under the official seal of the registrar, shall be received as conclusive evidence of the contents of the said register of newspaper proprietors, so far as the same appear in such copy or extract without proof of the signature thereto or of the seal of office affixed thereto, and every such certified copy or extract shall in all proceedings, civil or criminal, be accepted as sufficient prima facie evidence of all the matters and things thereby appearing, unless and until the contrary thereof he shown. This is a very valuable provision, and will greatly facilitate proof (3G9) 1 10 5 1 1 208 THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. of publication in all cases of newspaper libel. (But see note to sect. 11.) 10. Recovery of penalties and enforcement of orders.] — All penalties under this Act may be recovered before a court of sum- mary jurisdiction in manner provided by the Summary Jurisdiction Ads. ' Summary orders under this Act may be made by a court of sum- mary jurisdiction, and enforced in manner provided by section thirty-four of the Summary Jurisdiction Act, 1889 ; and, for the purpose of this Act, that section shall be deemed to apply to Ireland in the same manner as if it were re-enacted in this Act. 17. Definitions.'] — The expression "a court of summary juris- diction " has in England the meanings assigned to it by the Sum- mary Jurisdiction Act, 1879 ; and in Ireland means any justice or justices of the peace, stipendiary or other magistrate or magistrates, having jurisdiction under the Summary Jurisdiction Acts. The expression " Summary Jurisdiction Acts," lias as regards England the meanings assigned to it by the Summary Jurisdiction Act, 1879 ; and as regards Ireland, means within the police district of Dublin metropolis^ the Acts regulating the powers and duties of justices of the peace f%r such district, or of the police of that dis- trict, and [* 393] elsewhere in Ireland the Petty Sessions (Ireland) Act, 1851, and any Act amending the same. By sect. 50 of the Summary Jurisdiction Act, 1879, the expres- sion, " a Court of Summary Jurisdiction," is defined to mean " any justice or justices of the peace or other magistrate, by whatever name called, to whom jurisdiction is given by, or who is or are au- thorized to act under, the Summary Jurisdiction Acts, or any of such Acts." By the same section, the expression " Summary Jurisdiction Acts " is defined to mean the Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43), and the Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49) and any Act, past or future, amending either of them. IS. Provisions as to registration of newspaper proprietors not to apply to newspaper belonging to a joint stock company.'] — The provisions as to the registration of newspaper proprietors contained in this Act shall not apply to the case of any newspaper which belongs to a joint stock company duly incorporated under and subject to the provisions of the Companies Acts, 1862 to 1879.* This is a mistaken and mischievous provision. Many newspapers now are published by limited liability companies, with names that suggest no connection between the company and the paper. For in- stance the Graphic is published by " H. R." Baines & Co., Limited." Assuming that it were possible that a libel should appear in the Graphic, how could the person libelled discover whom to make de- fendant? Owing to this section there would be no entry at all at Somerset House to assist him. (370) REGISTRATION. 299 19. Act not to extend to /Scotland.] — This Act shall not extend to Scotland. The law of Scotland was said to be less stringent on the subject than that of England or Ireland. 20. Short title.] — This Act may for all purposes be cited as the Newspaper Libel and Registration Act, 1881. The Schedules to which this Act refers : SCHEDULE A. [Set out in the note to sect. 9, ante, p. 388.] SCHEDULE B. [Set out in the note to sect. 11, ante, p. 389.] (371) [•awi CHAPTER XIV. THE LAW OF PERSONS IN BOTH CIVIL AND CRIMINAL CASES. We have hitherto dealt with the plaintiff and defendant as indi- viduals under no disability, who sue and are sued singly and in their own right. I propose in this chapter to examine the rights and lia- bilities arising from personal disability or special personal relations with others, both in civil and criminal cases. It will be convenient to divide this chapter into the following heads : — 1. Husband and Wife. 2. Infants. 3. Lunatics. 4. Bankrupts. 5. Receivers. C. Executors and Administrators. 7; Aliens. 8. Master and Servant ; Principal and agent. 9. Corporations and companies. 10. Partners. 11. Other Joint Plaintiffs. 12. Joint defendants. 1. Husband and Wife. Whenever words actionable per se are spoken of a married woman, she may sue alone, or she may join [*395] her husband as co-plaintiff, in which case he will be entitled to recover in the same action for any special damage that may have occurred to him. When the words are not actionable per se, she may sue, provided she can show that some special damage has followed from the words to her. That special damage has accrued to her husband in consequence of such words will not avail her ; he alone can sue for such damage, although it is her reputation that has been assailed. Hence, if words not actionable per se be spoken of a married woman and damage ensue to the husband, none to her, she cannot sue, but he can. The damage to him is in fact the sole cause of action. This right of the husband to sue for words defamatory of his wife is somewhat anomalous, for his reputation is in no way assailed; and though he has sustained damage, is it not damnum sine injuria? Generally speaking, if words defamatory of A., but not actionable in themselves, produce damage only to B., neither A. nor B. can sue. But the reputation of a husband is so intimately connected (372) HUSBAND AMi WIFE. 301 with that of his wife, that he has always been allowed to sue when- ever he has received damage, just as though the words had been spoken of himself. That this is law, is clearly laid down in Siderfin, 346, under the year 1607 : — "Nota, si parols queux de eux m ne sont Actionable mes solement in respect del collateral dams, sont pie. (paries) del feme covert, Le Baron sole port L'action, et si le feme soit joyn ove luv le Judgment serra pur ceo arrest, coment soit apres verdict." (And see Ilarviood et JTardioick et ux. (1008), 2 Keltic, 387 ; Cole- man et ux. v. Harcourt (1004), 1 Levin/,, 140 ; Grove et ux. v. Hart (1752). Sayer, 33 ; B. N. P. 7.) In the case of "Riding v. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 W. R. 487; 34 L. T. 500, the wife's name was struck off the record by the judge at the trial, and the husband recovered for the damage to his business caused by words not actionable per se, spoken of his wife; though there it is true the Court bases its judgment on the fact that Mrs. Riding helped her husband in the shop, and was therefore his servant or assistant as well as his wife. By the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 1, sub-s. (2), a married woman is now [* 396] capable "of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her ; and any damages or costs recovered by her in any such action or proceeding shall be her separate property ; and any damages or cost recovered against her in any such action or proceed- ing shall be payable out of her separate property, and not otherwise." A married woman, therefore, may now sue for libel or slander without her husband or any next friend ; and she cannot be ordered to give security for the costs of the action, even although she have at the time of action no separate estate, and there be nothing upon which, if she fails, the defendant can issue available execution. {In re Isaac, Jacob v. Isaac (C. A.), 30 Ch. D. 418 ; 54 L. J. Ch. 1136 ; 33 W. R. 845 ; 53 L. T. 478 ; Threl- fall v. Wilson., 8 P. I). 18 ; 48 L. T. 238 ; Severance Civil Service Supply Association, 48 L. T. 485.) This section enables a married woman to sue alone for a tort committed against her before the Act came into operation. ( Weldon v. Winslow (C. A.), 13 Q. B. D. 784 ; 53 L. J. Q. B. 528 ; 33 W. R. 219 ; 51 L. T. 643.) And as she could not sue alone before the commencement of the Act (Jan- uary 1st, 1883), the Statute of Limitations does not commence to run against her till that date. ( Weldon v. Need, 32 W. R. 828.) Formerly a married woman was always bound to join her hus- band as co-plaintiff, otherwise the defendant might plead in abate- ment. But the action was still regarded as solely hers. If she died, it abated ; if he died, the action survived to her and she con- tinued it as sole plaintiff. No damages could be recovered in such an action for any pecuniary loss suffered by the husband ; if the (373) 302 THE LAW OF PERSONS. words were not actionable per se, and the female plaintiff could show no damage to herself, they were non-suited. The husband was formerly obliged to bring a separate action for any damage he had sustained. But by the Common Law Procedure [* 397] Act, 1852, s. 40, he was allowed to add claims in his own right whenever he was necessarily made a co-plaintiff in any action brought for an injury done to his wife ; and it was provided that on the death of either party the action should not abate so far as the causes of action belonging to the survivor were concerned. And now, by Order XVIII. r. 4, "Claims by or against husband and wife may be joined with claims by or against either of them separately." Married women still, as a rule, adopt the old common law method, and join their husbands as co-plaintiff. And there is this practical convenience in so doing, that thus all damages sustained by either can be recovered in one action. And there is also a twofold chance of proving special damage. In all cases of the class of Attsop v. Allsop, 5 II. & N. 534 ; 29 L. J. Ex. 315, ante, p. 336, it will clearly be prudent for the pleader to make a separate claim for damages for the husband. For I apprehend that it is clear law that a wife suing alone under the Act of 1882, cannot recover for any special damage which would have been excluded in an action brought at common law by herself and her husband. The damages recovered in such an action are to be her separate property ; she cannot, there- fore, recover for any loss which her husband has suffered. " The Act does not destroy the husband's right, but only relieves the woman from incapacity." (Per Bo wen, L. J., in Weldonv. Winsloio (C. A.), 13 Q. B. D. 788 ; 53 L. J. Q. B. 528 ; 33 W. R. 219 ; 51 L. T. 643.) By sect. 12 of the same Act, "Every woman, whether married before or after this Act, shall have in her own name against all per- sons whomsoever, including her husband, the same civil remedies, and also (subject, as regards her husband, to the proviso herein- after contained) the same remedies and redress by way of criminal proceedings, for the protection and security of her own separate property, as if such property belonged to her as a feme sole, but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort." This section does not enable a married woman to take criminal proceedings against her husband for a personal libel upon herself. {The Queen v. Lord Mayor of London and Vance, 16 Q. B. D. 772 ; 55 L. J. M. C. 118 ; 34 W. R. 544; 54 L. T. 761; 50 J. P. 614; 16 Cox, C. C. 81.) [*398 1 In New York and Pennsylvania a married woman has for many years been enabled by special statute to sue for libel or slander without joining her husband ; but even in those States, she cannot sue her 'husband for defaming her. (Freet/iy v. Freethy, 42 Barb. (N. Y.) 641; Tibbs v. Brown, 2 Grant's Cas. (Penn.) 39.) It is sub- mitted, however, that if in England a married woman carried on a separate trade or profession, and her husband libelled or slandered (374) HUSBAND AND WIFE. 303 her in the way of such trade or profession, she could sue him under sect. 12; such an action was held by Brett, J., to be "a remedy for the protection and security" of her seperate property within sect. 11 of the Act of 1870, and in the present sect. 12 the same words are used. (Summers v. Citi/ Bank, L. K. 9 ('. I'. 580; t3 L.I. C. P. 26.1.) I Jut he cannot in any case, not even after they are divorced, sue her for defamatory words published by her during coverture. (Phillips v. Barnet, 1. Q. B. 1). 436; 45 L. J. Q. B. l'77; 24 W. It. 345; :54 L. T. 177.) If the words be spoken of the woman before marriage, the hus- band's name may still be joined on the writ ; if she marry pending action, the husband may be made a party under Order XVII. r. !, though this is not necessary (r. 1). The right of action survives to the wife on her husband's death, whether lie was a party to the action or not; the widow continues sole plaintiff and the action does not abate. If, however, the wife dies before final judgment, the action must cease ; it cannot be continued by her husband either jure mariti, or as her administrator. If a married woman fail in an action of libel or slander, she may be condemned in costs, although her husband was joined as a co- plaintiff. (Netoton and wife v. Boodle and others, 4 C. B. 359; 18 L. J. C. P. 73.) Illustrations. Where words actionable per se were spoken of a married woman, she was al- lowed to recover onfy 20s. damages; all the special damage which she proved at the trial was held to have accrued to her husband, and not to her; he ought therefore to have sued for it in a separate action. He could now claim such damage in his wife's action, if joined as a co-plaintiff. Bengate andwife v. Gardiner, M. & W. 5 ; 2 Jur. 470. [* 399] Where a married woman lived in service apart from her husband, maintaining herself, and was dismissed in consequence of a libellous letter sent to her master, it was held that the husband could sue ; for his was the special damage. Coward v. Wellington (1836), 7 C. &. P. 531. In such a case, had the cause of her dismissal been slanderous words not actionable per se, the wife could not (before the Married Women's Property Act, 1870, at all events) have sued. She would have been held to have suffered no damage at all, her personal property befonging entirely to her husband. Per Lord Campbell in Lynch v. Knight and wife, 9 H. L. C. 589 ; 8 Jur. N. S. 724 ; 5 L. T. 291. Action by husband and wife, who kept a victualling-bouse, against the defendant for saying to the wife, " Thou art a bawd to thy own daughter," whereby J. S. that used to come to the house forebore, &c, to the damage of both. After a verdict for the plaintiffs, judgment was staved "because the words are not actionable, except in respect of the special loss, which is the husband's only." Coleman and wife v. Haroourt (1004), 1 Lev. 140. The female plaintiff lived separate from her husband and kept a boarding- house. The defendant spoke words imputing to her insolvency, adultery, and prostitution ; some of her boarders left her in consequence, and certain trades- men refused her credit. After verdict for the plaintiff, judgment was arrested, on the ground that the husband should have sued alone, for the words were actionable only by reason of the damage to the business and such damage was solely his. Saville et ux. v. Sweeney, 4 B. & Adol. 514 ; 1 N. & M. 254. (375) 304 THE LAW OF PERSONS. And so in America where a married woman was living apart from her hus- band under articles of separation, wherein the husband had covenanted that she might use his name in suing for any injury to her person or character, and the wife brought an action for slander in the joint names of her husband and herself ; the defendant induced the husband to execute a deed releasing the cause of action, and pleaded the release in bar of the wife's action, and the Court was compelled to hold this deed a good answer to the action. Beach et ux. v. Beach, 2 Hill (N. Y.), 260. Where the libel imputed that the plaintiff, a married man, kept a gaming- house, and that his wife was a woman of notoriously bad character, and the wife fell ill and died in consequence, evidence of such damage was excluded in an action brought by the surviving husband. Guy v. Gregory, 9 C. & P. 584. And seeWiison v. Gait, 3 Smith (17 N. Y. R.), 445, ante, p. 302. Words directly defamatory of the wife may also be defamatory of the hus- band, who may therefore sue alone. Thus, where defendant said to plaintiffs wife : " You are a nuisance to live beside of. You are a bawd ; and your house is no better than a bawdy-house,"' it was held unnecessary to make the wife a party to the action, although the husband proved no special damage. For had the charge been true, the plaintiff might have been indicted as well as his wife. Buckle v. Reynolds, 7 C. B. N. S. 114. And see Bash v. Somner, 20 Pennsylvania St. R. 159. Where the defendant said to the plaintiff, an innkeeper, " Thy house is in[* 400]fected with the pox, and thy wife was laid of the pox," it was held that the husband could sue ; for even if small-pox only was meant, the words were still actionable, " for it is a discredit to the plaintiff, and guests would not resort hither. " Damages £50. Levet's Case, Cro. Eliz. 289. " If an innkeeper's wife be called ' a cheat,' and the house lose the trade, the husband has an injury by the words spoken of his wife." Per Wythens, J., in Bakhcin v. Floicer (1688), 3 Mod. 120. Grove et ux. Hart (1752), B. N. P. 7 ; Sayer»33. A husband is liable for all libels published or slanders uttered by his wife during coverture. " They are the torts of her husband, and therefore she creates as against her husband a liability." (Per Jessel, M. R, in Wainford v. Heyl, L. R. 20 Eq. at p. 325 ; 44 L. J. Ch. 567 ; 23 W. R. 848 ; 33 L. T. 155;) And there is nothing in any provision of the Married Women's Property Act, 1882, removing or affecting this liability. {Seroka midwife v. Kattenburg and wife, 17 Q. B. D. 177 ; 55 L. J. Q. B. 375 ; 34 W. R. 542 ; 54 L. T. 649.) Hence, although a plaintiff may now sue the wife alone, if he wishes, for any libel or slander published by her [ante, p. 396), it will generally'be advisable for him to sue the husband as well. For if he sue the wife alone, he can only obtain execution against such separate estate as she is not restrained from anticipating, unless by reason of sect. 19 of the Act of 1882 any portion of such prop- erty shall be liable to execution notwithstanding such restraint. {Bursill v. Tanner, 13 Q. B. D. 691 ; 32 W. R. 827 ; 50 L. T. 589 ; Turnbidl v. Forman, 15 Q. B. D. 234 ; 54 L. J. Q. B. 489 ; 33 W. R. 768 ; 53 L. T. 128.) And it might be questioned whether any separate estate which a married woman acquired after the publica- tion complained of, and before judgment, would bo liable to execu- tion ; though it would probably be held that it was. Moreover, the judgment against the wife, if sued alone, will release the husband from all liability for the same tort ; the plaintiff cannot proceed (370) HUSBAND AND WIFE. 305 against him in case the separate property prove insufficient ; whereas, if lie join both husband ami wife as defendants <»n his writ, he can obtain judgment against the wife's separate estate, and also against the husband for the residue of damages and costs not recovered out of her separate estate. When husband and wife are both made defendants, they must both [* 401] be served, unless the Court or a judge shall otherwise order. (Ord. IX. r. 3.) And although in the case of a wife's ante- nuptial tort there is an express provision that, as between her and her husband, her separate estate shall be deemed to be primarily liable for damages and costs recovered in such an action, there is no such provision in the case of a post-nuptial tort. Hence, I presume, the ordinary rule applies ; and a husband who has had to pay damages out of his own pocket for his wife's words will have no remedy over against her separate estate. But the plaintiff may, of course, if he will, enforce his joint judgment against the separate property of the wife, and not against the husband. {Ferguson v. Clayworth and wife, 6 Q. B. 269 ; 13 L. J. Q. B. 329 ; 8 Jur. 709 ; 2 D. & L. 165 ; lveus v. Butler and wife, 7 E. & B. 159 ; 26 L. J. Q. B. 145 ; 3 Jur. N. S. 334.) It is not necessary for this purpose that the trustees of her marriage settlement should be made parties to the action. (Davies v. Jenkins, 6 Ch. D. 728 ; 46 L. J. Ch. 761; 26 W. R. 260.) An inquiry will be directed to ascertain of what her separate estate consists, and in whom it is vested, as in Collett v. Dickenson, 11 Ch. D. 687 ; 40 L. T. 394 ; and on such inquiry the solicitor to the trustees will be bound to state their names, and to produce the deed of settlement. (Bursill v. Tanner (C. A.), 16 Q. B. D. 1 ; 55 L. J. Q. B. 53 ; 53 L. T. 445.) So, too, though husband and wife be both sued, the wife, having general separate estate, may be condemned in costs. (3Iorris v. Freeman and wife, 3 P. D. 65 ; 47 L. J. P. D. & A. 79 ; 27 W. P. 62 ; 39 L. T. 125.) It is submitted that a married woman cannot be sued alone for any tort committed by her during coverture, prior to January 1st, 1883 ; as, prior to the commencement of the Act of 1882, she was not capable of rendering herself liable for her own tort. The former Married Women's Property Acts did not affect her position as defendant. (Hancocks & Co. JSJadame Demeric-Lablache, 3 C. P. D. 197 ; 47 L. J. C. P. 514 ; 26 W. R. 402 ; 38 L. T. 753.) For all libels published, or slanders uttered by the wife before coverture, her husband was at common law liable to the full extent. But now his liability is restricted in this respect. By the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 13, " A woman, after her marriage, shall continue to be liable in respect and to the extent of her separate property for all wrongs committed by [*402]i her before her marriage, and she may be sued for any liability in damages or otherwise in respect of any such wrong, and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be payable out of her separate property ; and, as between her and her husband, unless there be any contract between them to the contrary, her separate property shall be deemed to be 20 LIB. & SLAN. (377) 306 THE LAW CkF PERSONS. primarily liable for all such wrongs, and for all damages or costs recovered in respect thereof : Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act for any such wrong, except as to any separate property to which she may become entitled by virtue of this Act, and to which she would not have been entitled for her separate use under the Acts hereby repealed or otherwise, if this Act had not passed." By sect. 14, "A husband shall be liable for all wrongs committed by his wife, before marriage, to the extent of all property whatso- ever belonging to her which he shall have acquired or become entitled to "from or through his wife, after deducting therefrom any payments made by him, and any sums for which judgment may have been bona tide recovered against him in any proceeding at law, in respect of any debts, contracts, or wrongs for or in respect of which his wife was liable before her marriage as aforesaid, but he shall not be liable for the. same any further or otherwise ; and any court in which a husband shall be sued for any suchdebt (sic) shall have power to direct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, amount, or value of such property. Provided always, that nothing in this Act contained shall operate to increase or diminish the liability of any husband married before the commencement of this Act for or in respect of' any such liability of his wife as aforesaid." Bv sect. 15, " A husband and wife may be jointly sued in respect of any liability incurred by the wife before mar[*403]riage as aforesaid, if the plaintiff in tlie action shall seek to establish his claim, either wholly or in part, against both of them; and if in any such action, or in any action brought in respect of any such liability against the husband, it is not found that the husband is liable in respect of any property of the wife so acquired by him, or to which he shall Have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of the action against the wife if jointly sued with him ; and in any such action against husband and wife jointly, if it appears that the husband is liable tor the damages recovered, or any part threrof, the judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the husband personally and against the wife as to her separate property; and as to the residue, if any, of such damages, the judgment shall be a separate judgment against the wife as to her separate property only." Note, that these sections do not apply to any husband married before January 1st, 1883. A husband' married before July 30th, 1874, remains liable to the full extent as at common law ; though of course he is protected by the Statute of Limitations. Any hus- band married between July 30th, 1874, and January 1st, 1883, can claim the benefit of sects. 2 and 5 of the act of 1878 (37 & 38 Vict. c. 50), which limit his liability for torts committed by his wife dum sola to the extent merely of the property which has vested in him (378) HUSBAND AND WIFE. 307 bv reason of the marriage. Such a husband should he made a joint defendant, and must plead specially that no property came to him with his wife, or, if any did vest in him, that he has been compelled to devote the whole or some portion of it to paying other creditors of hers. If the husband dies before judgment the action continues against the widow ; if, however, the wife dies in the lifetime of her husband before judgment, the action immediately abates, whether it was for a post-nuptial or an ante-nuptial toit {Bell and another v. Stocker, 10 Q. B. D. 129; 52 L. J. Q. B. 49; 47 L. T. 024), unless he himself [*404] joined in or authorized it. If they be divorced, the wife must be sued alone; the husband is released from all liability, even though the words complained of were published before the divorce. {Capel v. Poioell and another, 11 C.B.N.S. 743; 34L.J.C.P. 101; 10 Jur. N. S. 1255; 13 W. R. 159; 11 L. T. 421.) So, if the wife has before action obtained a judicial separation (20 &21 Vict. c. 85, 88. 25,26), or a protection order still in force (sect. 21). But if the husband and wife voluntarily live apart under a separation deed, the common law rule prevails; the husband is liable for her miscon- duct, and may be joined as a defendant, {Head v. Briscoe et ax., 5 C. & P. 485; 2 L. J. C. P. 101.) A married woman will be held criminally liable for a libel she has published. {By. Mary Carllle, 3 B. & Aid. 167. Her cover- ture will, it seems, be no defence to an indictment for a misdemean- our. (B. v. Ingram, 1 Salk. 384; B. v. Cruse and Mary his wife, 2 Moo. C. C. 53; 8 C. P. 541.) Illustrations. Plaintiff sued Orchard and his wife for slanderous words ; the jury found that Orchard had spoken the words, but not Mrs. Orchard, Judgment against the husband It was moved in arrest of judgment that the speaking of the words could not be a joint act, and that if the husband alone uttered them, the wife ought never to have been made a party to the action. But it was held that this defect was cured by the verdict, and that the plaintiff was entitled to retain his judgment. Burcherv. Orchard et ux. (1652), Style, 349. But see StcitJun etux. v. Vincent et ux. (1764), 2 Wils. 227. Mrs. Harwood slandered Mrs. White ; wherefore White and wife sued Har- wood and wife. Pending action, Harwood died, and his widow remarried. The Court was very much puzzled, and gave no judgment, apparently, though inclining to think that the writ abated. [I think it would now depend on whether the widow had any property at the date of her second marriage ; if so, the second husband could be added as a co-defendant, or the action might pro- ceed against her alone ; if not, it would certainly be but little use continuing it . ] White etux. v. Harwood et vx. (1648), Style, 138 ; Vin. Abr. *' Baron and Feme," A. a. Mrs. Clay worth slandered plaintiff, who recovered 40s. damages and costs against her and her husband, and took her in execution under a ca. sa. The [*405] Court refused to discharge her out of the custody of the sheriff without the clearest proof that she had no separate propertv. Ferr/uson, v. Glayworth and wife, 6 Q. B. 269 ; 13 L. J. Q. B. 329 ; 8 Jur. 709 ; 2 I). & L. 165. But now see Draycott v. Harrison, 17 Q. B. D. 147 ; 34 W. R. 546. (379) 308 THE LAW OF PEBS0NS. 2. Infants. An infant may bring an action of libel or slander. He may trade, and may therefore have an action of slander for words which would damage him in his trade. (Wild v. Tomkinson, 5 L. J. K. B. 265.) As to a charge of crime, see ante, p. 63. An infant sues by his next friend, who is personally liable for the costs of the suit ( Caley v. Caley, 25 W. R. 528) ; but security for costs will not as a rule be required from him, lest the infant should lose bis rights altogether. An infant defends by a guardian ad litem. (See Order XVI. rr. 18, 19, 21 ; OrderXIII. r. 1 ; and Order LV. r. 27.) A guardian ad litem is not liable for costs, unless he has been guilty of gross miscon- duct. Tbe infancy of the defendant is no defence to an action of libel or slander. In Defries v. Davis, 7 C. & P. 112 ; 3 Dowl. 629, the defendant, a lad of fifteen, was imprisoned for default in payment of damages and costs for a slander. An infant will also be criminally liable for any libel, if he be above the age of fourteen. If he be under fourteen, but above seven, he might possibly be found guilty of a libel, if evidence were given of a disposition prematurely wicked. But more than the proof of malice ordinarily given in cases of privilege would probably be acquired. That an infant has been defamed gives his parents no right of action, unless in some very exceptional case it deprives the parent of services which the infant formerly rendered, in which case an action on the case may lie for the special damage thus wrongfully inflicted, provided it be the natural and probable consequence of the defend- ant's words. (See post, Master and Servant, p. 409.) A child will be held to be the servant of its parents, provided it is old enough to be capable of rendering them any act of service. (Dixon v. Bell, 5 Maule & S. [*406] 198 ; Hall v. Hollander, 4 B. & C. 660; 1 D. & R. 133 ; Evans v. Walton, L. R. 2 C. P. 615 ; 15 W. R. 1062.) 3. Lunatics. It is almost inconceivable that an admitted lunatic should bring an action of libel or slander. But, should such an event happen, he ought to sue by his next friend, if he has hot yet been found of unsound mind by inquisition ; if he has been, then by his com- mittee, who before commencing the action must obtain the sanction of the Lords Justices and of the Master in Lunacy in the proper way. Lunatics defend an action by their committee, if one be appointed, and if he has no adverse interest ; in other cases by a guardian ad litem. Lunacy is in England, it is said, no defence to an action for slander or libel. (Per Kelly, C. B., in Mordaunt v. Mordaunt, 39 L. J. Prob. & Matr. 59.) Iii America, however, insanity at the time of speaking the words is considered a defence, " where the derange- ment is great and notorious, so that the speaking the words could produce no effect on the hearers," because then " it is manifest no (380) BANKRUPTS, RECEIVERS, EXECUTORS, ETC. 309 damage would be incurred." But where the degree of insanity is slight, or not uniform, there evidence of it is only admissible in mit- igation of damages. {Dickinson v. Barber, 9 fyng (.Mass.), 218 ; Yeates et ux. v. Reed' et ux., 4 Blackford (Indiana), 463 ; Horner v. MarshaWs Administratrix, 5 Munford (Virginia), 466 ; Gates v. Meredith, 7 Ind. 440.) A lunatic cannot be held criminally liable for a libel published under the influence of mental derangement ; but the onus of pro\ r ing this defence lies on the accused. Bankrupts. An undischarged bankrupt may sue for and recover damages for a personal wrong, such as libel or slander, nor will such damages pass to his trustee under sect. 15 of the Bankruptcy Act, 1869. (Dotoling v. Browne (1854), 4 Ir. [*407] C. L. R. 265 ; Ex parte Vine, In re Wilson, 8 Ch. D. 364 ; 26 W. R. 582 : 38 L. T. 730.) The right of action is not assignable (Benson v. Flower, Sir Win. Jones,215) ; and the trustee cannot interfere. Hence the defendant is not entitled to security for costs (Andrews v. Marris and another, 7 Dowl. 712 ; Stead v. Williams and others, 5 C. B. 528) ; unless possibly where the plaintiff becomes bankrupt pending action. (Brocklebank SCo. v. King's Lynn Steamship Co., 3 C. P. D. 365 ; 47 L. J. C. P. 321 ; 38 L. T. 489 ; In re Carta Para Mining Co., 19 Ch. D. 457; 51 L. J. Ch. 191 ; 46 L. T. 406.) Neither the bankruptcy of the plaintiff nor that of the defendant is any defence to the action. If a plaintiff likes to sue an insolvent defendant for unliquidated damages, he may do so. 5. Receivers. i ■ If receivers appointed by the Court in an administration suit to carry on a gazette, publish a libel therein, they are of course personally liable for damages and costs. The damages, it would seem, may be paid out of the estate, but not the costs ; those the receivers must pay out of their own pocket. (Stubhs v. Marsh, 15 L. T. 312.) So" in America. (Marten v. Van Schaick, 4 Paige, 479.) 6. Executors and Administrators. The maxim actio personalis cum personal moritur applies to all actions of libel and slander. If, therefore, either party die before verdict, the action is at an end. " There shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment, but judgment may in such case be entered,notwithstanding the death." (Order XVII. r. 1.) But if interlocutory judgment be signed and a writ of inquiry issue, and then plajntiff die,Jfinal judgment cannot be entered. (8 & 9 Will. III. c. 11, s. 6 ; Ireland v. Champ [*408] neys, 4 Taunt. 884.) If, however, final judgment has once been entered in the plaintiffs favour, and then plaintiff dies and defendant appeals, the action will (381) 310 THE LAW OF PERSONS. not abate ; but the executors or administrators of the late plaintiff may appear as respondents to the appeal. [Tkoycross v. Grant and others (C. A.) 4 C. P. D. 40 ; 47 L J. Q. B. 676 ; 27 W. R. 87 ; 39 L. T. 618.) So in America. (Sandford v. Bennett, 24 N. Y. 20.) So, if either party die after final judgment, execution can issue under Order XLII. r. 23. An action in the nature of slander of title survives to the plaintiff's executor to the extent that damage can be shown to the plaintiff's astate. (llatchard v. Mege and others, 3 Times L. R, 546 ; Weekly Notes, 1887, p. 80 : 51 J. P. 277.) 7. Aliens. An alien friend residing abroad may sue in England for a libel or slander published offhim in England. (Pisani v. JLawson, 6 Bing, N. C. 90 ; 5 Scott, 418.) The place where the words were spoken or published is a test of jurisdiction ; not the domicile of the plaintiff or the defendant. But any plaintiff whose ordinary place of residence is not in the British Isles may be ordered to give security for costs, unless he either has real property within jurisdic- tion available in execution, or is co-plaintiff with others resident in England. (Order LXV. r. 6, a ; 31 & 32 Vict. c. 54, s. 5 ; Massey v. Allen, 12 Ch. D. 807 ; 48 L. J. Ch. 692 ; 28 W. R. 243 ; 41 L. T. 788.) Every foreigner within jurisdiction, for however short a time, owes the Queen allegiance during his stay, and is subject to our laws. He will be liable, therefore, both civilly and criminally, for every libel published within the jurisdiction of the English Courts ; he will also be civilly liable for every slander uttered within jurisdic- tion. If, however, he has left England before the writ is issued, the plaintiff will have great difficulty, under the new [*409] Order XL, in obtaining leave to issue a writ. If such leave be granted, he must serve on the defendant notice that the writ. has been issued, and not the writ itself. (Order XL r. 6.) See post, p. 518. Illustrations. A French refugee in England wrote a stilted poem about the apotheosis of Napoleon Buonaparte, then first consul of the French Republic, suggesting that it would be an heroic deed to assassinate him. He was held amenable to the English criminal law, although the libel was purely political, affected no one in the British Isles, and attacked the man who was England's greatest enemy at the time. The jury found him guilty ; but war broke out again between England and France soon afterwards, and no sentence was ever passed. R. v. Jean Peltier, 28 Howell's St. Tr. 617. The defendant out of jurisdiction made a statement in the nature of slander of title to the plaintiff's ship. The Court refused to allow the writ to be served, although the ship was at the time within jurisdiction. Casey v. Arnott, 2 C. P. D. 24 ; 46 L. J. C. P. 3 ; 25 W. R. 46 ; 35 L. T. 424. Where words spoken out of the jurisdiction indirectly caused special damage to the plaintiff within the jurisdiction, the Court refused leave to issue a writ to be served out of jurisdiction, on the ground that such special damage was not an "act done" within jurisdiction, within the meaning of the former Order XL r. 1. (382) MASTER AND SERVANT. 311 Bree v. Mareseaux (C. A ), 7 Q. B. D. 434 ; 50 L. J. Q. B. 076 • 29 \V. H, 858; 44 L. T. 644, 765. But now sec Tozier and mft v. Hawkins (U. A.), 15 Q B I) 650 680 ; 55 L. J. (J. 15. 102 ; 34 W. R. 223. 8. 3/aster and Servant — Principal and Agent. If a servant or apprentice be libelled or slandered he can of course sue in his own right. In some cases his master also can sue in an action on the case, if the words have directly caused him pecuniary loss; e.g., if the servant has been arrested and the master deprived of his services in consequence of the defendant's words ; or if in any other way the natural consequence of the words spoken has been to injure the master in the way of his trade. And this [*410j appears to be the law whether the words be actionable per se or not. Illustrations. If defendant threaten plaintiff's workmen, so that they dare not go on with their work, and the plaintiff in consequence loses the profit he would have made on the sale of his goods, an action lies. Garret v. Taylor (1621), Cro. Jac. 567; 1 Roll. Ahr. 108. Sprint/hi . 15. 918 ; 15 L. J. Q. B. 134.) But now, by virtue of Order XVIII. r. (j, " claims by plain- tiffs jointly may be joined with claims by them or any of them sep- arately against the same defendant." (And see Order XVI. r. 1.) Hence it is no longer necessary to bring two actions for the same words : each individual partner should be flamed on the writ, and he can then recover separate damages for any special injury done to himself, the firm at the same time recovering their joint dam- ages. (See Booth and others v. Briscoe, 2 Q. B. I). 400 ; 25 W. R. 838 ; post, p. 419.) If, however, one partner he defamed as to his private life, the conduct of the firm not being attacked directly or indirectly, nor any special damage resulting to them from de- fendant's words, then the individual partner should sue alone. If a partner in conducting the business of a firm causes a libel to be published, the firm will be liable as well as the individual part- ner. So, if an}- agent or servant of the firm delaines any one by the express direction of the firm, or in accordance with the general orders given by the firm for the conduct of their business ; ante, p. 411. But if there be any doubt as to the liability of the firm, it is always safer to join the individual partner or agent or servant as a co-defendant with the firm. (See Order XVI. rr. 4, 7.) Illustrations. If one partner be libelled in his private capacity he cannot recover for any special damage which has resulted to the business of the firm. All the partners should sue for that jointly. They may now do so in the same action. Solomons and others v. Medex, 1 Stark. 11)1. llobinsoii v. Marchant, 7 Q. B. 918 ; 15 L. -J. Q. B. 134 ; 10 Jur 156. Cook and another v. Batchellor, 3 Bos. & Pul. 150. Maitland and others v. Qoldney and another, 2 East, 426. Similarly, if the firm be libelled as a body, they cannot jointly recover for any private injury to a single partner ; though that partner may now recover his individual damages in the same action. Haythom v. Lawson, 3 C. & P. 196. LeFanu v. Malcolmson, 1 H. L. C. 637 : 13 L. T. (O. S.) 61 • 8 Ir L. R. 418. [* 419] But if insolvency be imputed to one member of a firm, this is a reflec- tion on the credit of the firm as well : therefore either he, or the firm, or both, may sue, each for their own damages. Harrison v. Bevington, 8 C. & P. 708. Foster and others v. Lawson, 3 Bing. 452 ; 11 Moore, 360. 11. Other Joint Plaintiffs. " All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. (389) 318 THE LAW OF PERSONS. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief, unless the Court or a judge in disposing of the costs shall otherwise direct." (Order XVI. r. 1.) By virtue of this rule, an action of libel or slander may now be brought by two or more persons jointly, although they are not in partnership or otherwise jointly interested. Barratt v. Collins, 10 Moo. 451, must be considered overruled. The damages in such an action ought to be claimed and assessed separately ; but if they be assessed jointly, and the plaintiffs be content with such a verdict, the defendant cannot avail himself of the defect. {Booth and others v. Briscoe, 2 Q. B. D. 496 ; 25 W. R. 838.) Illustrations. A charity near Wisbeach was managed by a body of trustees, eight in num- ber. A libellous letter was published in the Wisbeach Chronicle, imputing to the trustees misconduct in the management of the funds of the charity. The eight trustees sued the proprietor of the paper in one joint action for the libel. Held, that they were empowered so to do by Order XVI. r. 1 ; although before the Judicature Act, it would never have been allowed. The jury having re- turned a single verdict for the plaintiffs, damages 40s., the Court of Appeal refused, on the motion of the defendant, to disturb the verdict. Booth and others v. Briscoe, 2 Q. B. D. 496 ; 25 W. R. 838. [* 420] Two co-proprietors of a newspaper may sue jointly for a libel on their paper without proving special damage ; and the jury may find the damages generally. Russell and another v. Webster, 23 W. R. 59. 12. Joint Defendants. " All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment." (Order XVI. r. 4 ; and see rr. 5, 7.) Under these rules a joint action can now be maintained against two or more persons for slander. Formerly this was impossible. ( Chamberlain v. White, Cro. Jac. 647 ; S. C, sub nomine Cham- berlaine v. Willmore, Palm. 313.) Even if husband and wife uttered similar words simultaneously, there were two separate publications, and an action had to be brought against the husband alone for what he said ; against both husband and wife for her words. {Burcher v. Orchard et ux. (1652), Style, 349 ; ante, p. 404 ; Sioithin et ux. v. Vincent etux. (1764), 2 Wils. 227 ; and in America, Tail v. Cul- bertson, 57 Barb. 9.) But with libel it was different ; the publica- tion of a libel might well be the joint act of two or more persons, who might in such a case be sued either jointly or separately at the election of the plaintiff. Thus, if a master and servant jointly pub- lished a libel, they might always have been jointly sued in the same action. But if there were two distinct publications of the same libel, one by A. separately, the other by B., two actions must for- (390) JOINT DEFENDANTS. 319 merly have been brought, one for each publication. Now, however, a plaintiff can, if he like, sue both A. and 15. in the same action, and recover from each damages proportioned to the injury each publication has caused him. But the plaintiff is not now, and never was, obliged to join as a defendant every person who was liable. He may, if he prefers, sue only one or two ; and the liability of the others will be no defence for those sued, and will not mitigate the damages recoverable. And the defendants sued cannot recover any share of damages or costs from the [*42l]^ others, who might have been, but are not, sued. (Colburn v. Patmore, 1 C. M. & R. 73; 4 Tyr. 677.) But the judgment against these is a bar to any subsequent action on the same publication against any one else who was jointly liable with them therefor : see post, p. 522. Joint defendants may counter-claim jointly, or one or more of them separately, against the plaintiffs, or some or one of them, jointly or separately, or against one plaintiff and a third party. (See Order XVI. r. 3.) Such a counter-claim will, however, be struck out if it cannot be conveniently disposed of in the pending action ; see post, p. 543. Illustration. The members of the committee of the Reform Union were held jointly liable for publishing a report charging the plaintiff and others by name with bribery at the Berwick election. Wilson v. Reed and others, 2 F. &. F. 149. (391) [*422] CHAPTER XV. CRIMINAL LAW. It is a misdemeanour at common law, punishable on indictment or information with fine and imprisonment, to speak any blasphe- mous, obscene, or seditious words in the hearing of others. A fortiori, it is a misdemeanour to write and publish blasphemous, obscene, or seditious words. It is a misdemeanour at common law, punishable on indictment or information with fine and imprisonment, to write and publish defamatory words of any living person, or exhibit any picture or effigy defamatory of him. It is not a crime merely to speak such words, however maliciously. A libel on a thing is no crime ; and wherever no action would lie without proof of special damage, no indictment or information can be preferred. Whatever words would be deemed defamatory of a living person in any civil action will be held a libel on the trial of an indictment. All the rules laid down in Chapters II., III., VIII., IX., as to Bona Fide Comment, Construction and Certainty, Privilege, and Malice, apply equally to civil and criminal proceedings. It will be an aggravation of the offence, if the person libelled be a foreign prince, statesman or ambassador ; for such a libel would embarrass the government, and might disturb the friendly relations between England and that foreign country. (See post, p. 430.) It is a misdemeanour at common law, punishable on indictment with fine and imprisonment, to write and publish defamatory words of any person deceased ; provided it [*423] be alleged and proved that this was done with intent to bring contempt and scandal on his family and relations and so provoke them to a breach of the peace. (5 Rep. 125« ; Hawkins, P. C. i. 542 ; R. v. Topham, 4 T. R. 126.) It is also a misdemeanour to libel any sect, company or class of men, without mentioning any person in particular ; provided it be alleged and proved that such libel tends to excite the hatred of the people against all belonging to such sect or class, and conduces to a breach of the peace. (R. v. Gathercole, 2 Lewin, C. C. 237.) Such intention may sufficiently appear from the words of the libel itself, or it may be proved by the consequences, if any, of its publication. The criminal remedy for libel, as it is the earlier, so it is the more extensive remedy ; a libel may be indictable, though it be not actionable. Thus in neither of the above cases would an action (.392) CRIMINAL LAW. 321 lie, for want of a proper plaintiff. (And see H. v. Darby, 3 Mod. 139.) In Reg. pros. Vallombrosa v. -Labouchere, 12 Q. B. D. 320 ; 53 L. J. Q. B. 362 ; 32 W. R. 861 ; 50 L. T. 177; 15 Cox, C. C. 415 ; 48 J. P. 165, the Court expressed some doubt as to whether it was a crime to libel a dead man, but abstained from expressing any decided opinion on the point. This doubt certainly operated as one reason among others for refusing (lie extreme remedy of a criminal information in that case ; and it will thus be very difficult to obtain a criminal information in any subsequent case of libel on a person deceased. But these dicta do not appear to me to at all affect the remedy by way of indictment, and I think the law remains as stated above. See, however, H. v. Ensor, 3 Times L. R. 366. It is not necessary to prove that the libeller in fact desired that a breach of the peace should follow on his publication ; that is prob- ably the last thing he wished for ; still less is it necessary to prove that an actual assault ensued, though, if it did, evidence of such assault is admissible. (7?. v. Osborn, Kel. 230; 2 Barnard. 138, 166.) It is sufficient if the necessary or natural effect of defendant's words is to vilify the memory of the deceased and to injure his posterity to such an extent as to render a breach of the peace im- minent or probable. Illustrations. Libel complained of : "On Saturday evening died of the small-pox at his house in Grosvenor Square, Sir Charles Gaunter Nicoll, Knight of the Most Honour [* 424] able Order of the Bath, and representative in Parliament for the town of Peterborough He could not be called a friend to his country, for he changed his opinions for a red ribbon, and voted for that per- nicious object, the excise." It was alleged that this passage was published with intent to vilify, blacken, and defame the memory of the said Sir Charles, and to stir up the hatred and evil will of the people against the family and posterity of the said Sir Charles. An information was granted. _ R. v. GHtchley (1734), 4 T. R. 129, n. But an indictment which alleged that a libel on the late Earl Cowper had been published with intent to disgrace and vilify his memory, reputation, and character, but did not go on to aver any intent to create ill blood or throw scandal on the children and family of Earl Cowper, or to provoke them to a breach of the peace, was held bad, after a verdict of guilty, and judgment arrested. R, v. Topham, 4 T. R. 126. And, afgrtiori, to discuss the characters of deceased statesmen and noblemen, as a matter of history, is no crime. Per Lord'Kenyon, C. J., ib. 129. But if in discussing the character and policy of William III. and George I., discredit is thrown on the character and administration of the present king (George II.), with intent to spread dissatisfaction among his subjects, the pub- lication is a seditious libel. R. v. Dr. Shebbeare (1758), cited in Lord Mansfield's judgment in R. v. Dean of St. Asaph. 3 T. R. 430, n. The defendant published a sensational account of a cruel murder committed by certain Jews said to have lately arrived from Portugal, and then living near Broad Street. They were said to have burnt a woman and a new-born baby, because its father was a Christian. Certain Jews who had arrived from Por- tugal, and who then lived in Broad Street, were attacked by the mob, bar- barously treated, and their lives endangered. A criminal information was 21 LI3. & SLAN. (393) 322 CRIMINAL LAW. granted, although it was objected that it did not appear precisely who were the persons accused of the murder. Ji. v. Osbom, Kcl. 2:i(); 2 Barnard. 138, 166. It is a crime to write of a Roman Catholic nunnery that it is a "brothel of prostitution ;" for this is an aspersion on the characters of the nuns in general, though none are singled out by name. R v. Qathercole (1838), 2 Lew. C. C. 237. R. v. J. A. Williams (1822), 2 B. & Aid. 595 ; 2 Townsend's .Modern State Trials, 231. A pamphlet reflecting on the government and asserting that its officers are corrupt, ignorant, and incapable, will be a libel, and punishable as a crime ; although no particular member of the government, and no individual officer, is mentioned or referred to. R. v. Tutrhiti, 14 Howell's St. Tr. 1095 ; 5 St. Tr. 527 ; Holt, 56 ; 2 Lord Raym. 1061 ; 1 Salk. 50 ; 6 Mod. 268. A notice was posted in church calling attention to certain abuses permitted by "the trustees" of Lambeth workhouse ; an information was granted on be- half of the whole body of trustees [although the trustees could not before the Judicature Act have jointly sued for the libel ; ante, p. 419]. R. v. Griffin, 1 Sess. Cas. 257. [*425] An information was granted for a libel commencing : — " Whereas an East India director has raised the price of green tea to an extravagant rate," although there was nothing to show which particular director was intended. Ji. v. Jenuur, 7 Mod. 400. But an indictment for a libel on " persons to the jurors unknown " is bad, even after verdict. Ji. v. Orme (vel Alme) and Mitt, 1 Ld. Raym. 486 ; 8 Salk. 224. It is a misdemeanour at common law to utter words which amount to a direct challenge to fight a duel, or to utter insulting words with the intention of provoking another to send a challenge. ( /v. v. Philippe, 6 East, 464, and note on p. 476.) A fortiori, it is a misdemeanour to write a challenge or to consciously deliver a written challenge. And indeed all words which amount to a solicitation to commit a crime, whether spoken or written, are indictable, whether the person solicited commit the crime or not. (72. v. Iliggins, 2 East, 5.) It is also said to be a misdemeanour to fabricate and publish false news in writing (Dig. L. L. 23), or to endeavour, by spreading false rumours, to raise or lower the price of food or merchandise. (See B. v. Waddington (1800), 1 East, 143.) According to Scroggs, J., it is a misdemeanour to publish any news at all, though true and harmless. (See 1 1 Ilargrave's St. Tr. 322.) Where eight persons combined to raise the price of Government stocks on Feby. 21st, 1814, by spreading a false rumour of the death of Napoleon Buona- parte, they were indicted and convicted of a conspiracy, for their common purpose was illegal. (B.v. De Berenger, 3 M. & S. 67.) But this is scarcely an authority for holding that the merely spread- ing a false rumour is in itself indictable. The statutes of Scandalum Magnatum, 3 Edw. I. c. 34 ; Rich. II. st. 1, c. 5 ; and 12 Rich. II. c. 11, are set out ante, pp. 13.4-6 ; they are, however, practically obsolete. In all the above cases of misdemeanour at common law, the de- fendant may be fined or imprisoned, or both ; but he cannot be (394) CRIMINAL INFORMATION. 323 sentenced to hard labour. He may also be required to find sureties to keep the peace and to be of good behaviour for any length of time. A married woman could not, before theMarried Women's Property Act, be [*426] lined ; but she could be required to find sureties, though she could not enter into recognizances herself. None of the above offences can be tried at quarter sessions, except an indictment for obscene words ; post, p. 471. Certain statutes have been passed in aid of the common law : — By the 6 & 7 Vict. c. 90, s. 3, it is a misdemeanour to publish, or threaten to publish, any libel upon any oilier person, or to threaten to publish, or propose to abstain from publishing, or to offer to pre- vent the publishing of, any matter or thing touching another, with intent to extort money or gain, or to procure for any one any ap- pointment or office of' profit. The offender may be sentenced to im- prisonment for any term not exceeding three years, either with or without hard labour. Except under the first clause of the section, the matter or thing threatened to be published need not be libellous ; the intent to extort money is the gist of the offence ; and a demand of money which defendant honestly believes to be due and owing to him is no evi- dence of such an intent, (R. v. Coghlan, 4 F. & F. 316.) The commencement of legal proceedings is not "a publishing of any matter or thing " within the meaning of the section. (R. v. Yates and another, 12 Cox, C. C. 441.) A corporation is not a "person " within the meaning of this section. (R. v. McLaughlin, H J. P. 291.) By the 6 & 7 Vict. c. 96, s. 4, it is a misdemeanour to maliciously publish any defamatory libel knowing the same to be false ; the punishment may be fine or imprisonment, or both, such imprison- ment not to exceed two years. By the 6 & 7 Vict. c. 96, s. 5, it is a misdemeanour to maliciously publish any defamatory libel ; the punishment may be fine or imprisonment, or both, such imprisonment not to exceed one year. See the whole statute in Appendix D., post, pp. 716-9. [*427] By the 24 & 25 Vict. c. 96, ss. 46, 47, it is a felony to accuse or threaten to accuse another of any infamous crime, whether by let- ter or otherwise, with intent to extort money or gain. The offender may for each letter he has sent be sentenced to penal servitude for life, or for any term not less than three years [wow t five years, 27 & 28 Vict. c. 427, s. 428], or to imprisonment, with or without hard labour, for any term not exceeding two years. (See R. v. Red- man, h. R. 1 C C.'R. 12 ; 39 L. J. M.C. 89 ; R. v. Ward, 10 Cox, C. C. 42 ; and before this Act, 72 v. Sotdherton, 6 East, 126. M Criminal Informations. In some cases of indictable words, the prosecutor may also, if he prefer, proceed by way of criminal information. (395) 324 CRIMINAL LAW. Criminal informations are of two kinds : (i) Those filed by the Attorney-General himself, usually called ex officio informations, (ii) Those filed by the Queen's coroner and attorney by the direction of the Queen's Bench Division at the instance of some private individual, (i) The first class is, as a rule, confined to libels of so dangerous a nature as to call for immediate suppression by the officers of the State ; especially blasphemous, obscene, or seditious libels, or such as are' likely to cause immediate outrage and public riot and disturb- ance. In these cases, therefore, the Attorney-General himself takes the initiative. There has I believe been no ex officio information filed in England since 1830. (ii) In the second class of informations the relator is generally some private individual who has been defamed. But still the words complained of must be such as call for the prompt and immediate interference of the Court. There must be some evidence that the ordinary remedies by action or indictment are insufficient in the par- ticular [*428] case. " The Court, moreover, always looks at all the circumstances which occasioned or provoked the libel. Thus no in- formation will be granted if the prosecutor relator has himself libelled the defendant (R. v. Nottingham Journal, 9 Dowl. 1042), or in any way invited the publication of the libel of which he now complains {R. v. Larrieu, 7 A. & E. 277), or had an opportunity of expressing his disapproval of its terms, of which he did not avail himself (R. v. Lawson, 1 R. B. 486 ; 1 Gale & D. 15), or has de- manded and received explanations from the defendant (Ex parte Doveton, 7 Cox, C. C. 16 ; 26 L. T. (Old S.) 73 ; 19 J. P. 741 ; Ex parte Haviland, 41 J. P. 789), or has himself written to the papers or published a pamphlet provoking the libel (R. v Hall, 1 Cox, C. C. 344), or replying thereto (Ex jKtrte Rowe, 20 L. T. (Old S.) 115 ; 17 J. P. 25). And generally, if the prosecutor has been guilty of any misconduct in relation to the matter, a rule will be refused, ex- cept in cases where the public have a direct and independent interest in the prompt suppression of such libels. (R. v. Casey, 13 Cox, C. C. 310 ; following R. v. JVorris, 2 Lord Kenyon, 300.) It is not necessary that the libel should charge a criminal offence to induce the Court to grant a criminal information. It is enough that the libel, though on a private individual, is one requiring prompt suppression. The rank and dignity of the person libelled was formerly taken into consideration ; and informations have been granted for imputing that the children of a marquis were bastards (R. v. Gregory, 8 A. & E. 907 ; 1 P. & D. 110) ; that a peer had married an actress (72. v Kinnersley, 1 Wm. Bl. 294) ; that a naval captain was a coward, a bishop a bankrupt, a peer a perjurer, &c, &c. But now it is settled that rank confers no superior claim to the summary interference of the Court. A peer is no more entitled to a criminal information when his private character is attacked than the humblest servant of the Queen. (Ref/. pros. Vailombrosa v. La- bouchere, 12 Q. B. D. 320 ; 53 L. J. Q. B. 362 ; 32 W. R. 861 ; 50 L. T. 177 ; 15 Cox, C. C. 415 ; 48 J. P. 165.) [*429] A grocer ob- (396) CRIMINAL INFORMATIONS. 325 tained a criminal information for a libel in B. v. Benfidd, 2 Burr. 980; a housekeeper in B. v. Tanfield, 42 J. P. 4l':;. But latterly the Court has been much more chary of grant in- criminal informations ; and in future they will, ;is ;i rule, be only granted where the applicant holds some public office or position in England {Reg. Labouchere, ubi supra) ; or where the libel tends to obstruct the course of justice, or to prejudice the fair trial of any accused person. {11. v. Watson and others, 2 T. R. 199 ; poat, p. 493 ; B. v. Jolliffe, 4T. R. 285 ; B. v. White, 1 Camp. 359, n. ; Ex parte Duke of Marlborough, 5 Q. B. 955 ; 13 L. J. M. C. 105 ; 1 Dav. & Mer. 720 ; B. \.Gray, 10 Cox C. C. 184.) So, if there be general reflections on a body or class, no particular individual being specially attacked ; still if the words are likely to cause outrage and violence, the Court will grant an information : as where the libel was on the Jews, and certain Jews in consequence had been ill-used by the mob {Anon., 2 Barnard. 138 ; B. v. Osborn, ib. 166, ante, p. 424 ; so where the general body of clergymen in a particular diocese were libelled {li. v. Williams, 5 B. & Aid. 595) ; or a public body, such as the directors of the East India Company. {B v. Jenour, 7 Mod. 400.) But no information will be granted for a libel contained in a private letter never made public {Ex parte Dale, 2 C. L. R. 870) ; nor for any matter of mere trade dispute, even though fraud be imputed ; nor in any case where no malicious intention appears {Ex parte Doveton, 7 Cox, C. C. 16 ; 19 J. P. 741 . ; 26 L. T. (Old 8.) 73) ; nor where the remedy by action or indictment is sufficient. {Beg. v. Mead, 4 Jur. 1014 ; Be " Evening J^eics," 3 Times L. R. 255.) A fortiori, no information will be granted where the words are privileged by reason of the occasion on which they were employed {B. v. Bailie (1790), Holt, K P. 312, n. ; Ex Parte Hoare, 53 L. T. 83) ; or where they appear to be true. {B. v. Draper, 3 Smith, 390.) In every case the application for a criminal information [*430j must be made promptly : any delay in making the application after knowledge of the libel has reached the prosecutor will be ground for refusing an information, unless such delay can be satisfactorily explained. The prosecutor, too, must come to the Court in the first instance, and must not have attempted to obtain redress in other ways before applying for a criminal information. Illustrations. An information was refused where the alleged libel was proved to he a true copy of a report of a Committee of the House of Commons, though it did reflect on the individual prosecutor, and though its publication was not authorized by the House. 11. v. Wright, (1799). 8 T. R. 293. A French gentleman, D'Eon de Beaumont, published a libel on the Count de Guerehy. then French Ambassador in England. The libel chiefly referred to private "disputes between D'Eon and the Count, alleging that the Count had supplanted D'Eon at the Court of Versailles by trickery ; but it also reflected (397) 326 CRIMINAL LAW. On the public conduct of the ambassador, and insinuated that he was not fit for his post. An information was filed and D'Eon convicted. (Lord Mansfield.) B v. D'Eon (17(14), 3 Burr. 1514 ; 1 W. Bl. 501 ; Dig. L. L. 88. And see It. v. Peltier (1803), 28 Howell's St. Tr. 617 ; ante, p. 409. Lord George Gordon was tried in 1787 and convicted upon an information charging him with libelling Marie Antoinette, Queen of France, and "hertool" the French Ambassador in London. He was fined £500 and sentenced to two years' imprisonment, and at the expiration of that time to find sureties for his iiood behaviour. This he could not do, so he remained in prison till be died on November 1st, 1798. (Ashurst, J.) It v. Lord George Gordon, 22 Howell's St. Tr. 177. The Courier published the .following passage : — " The Emperor of Russia is rendering himself obnoxious to his subjects by various acts of tyranny, and ridiculous in the eyes of Europe by his inconsistency. He has now passed an edict prohibiting the exportation of timber, deals, and other naval stores. In consequence of this ill-timed law, upwards of 1 00 sail of vessels are likely to return to this country without freights." This was deemed a libel upon the Emperor Paul I. An information was granted, and the proprietor of the Courier was find £100, sentenced to six months' imprisonment, and to find sureties for good behaviour for five years from the expiration of that term. The printer and publisher were also sentenced to one month's imprisonment. (Lord Kenyon, C. J.) R. v. Vint (1799), 27 Howell's St. Tr. 627. The Prince Regent obtained an information against the editor and printer of the Examiner. It. v. Leigh and John Hunt, 3 Chit. Cr. L. 881. Certain justices of Leicestershire obtained a rule for a criminal information [*431] for a. libel imputing that, in convicting a particular prisoner, they had deliberately acted from motives of political partisanship. Ex parte Hoskyns, 33 J. P. 68. The mayor of a borough is entitled to a criminal information for a libel im- puting to him gross misconduct in bis office. It v. Brigstock, Cole on Cr. Inf p. 23 ; 6 C & P. 184. Ex parte the Mayor of Great Yarmouth, 1 Cox, C. C. 122. Reg. v. John Rea, 17 Ir. C. L. R. 584 ; 9 Cox, C. C. 401. And similarly a town clerk. R. v. Hatfield, 4 C. &P. 244. So is a bishop, "dishonourable and degrading conduct " being imputed to him qua bishop. It v. Clouter, Cole on Cr. Inf. p 22. A chief constable obtained a rule nisi for a libel imputing misconduct in his office. Ex parte Parry, 41 J. P. 85. A Queen's counsel obtained a criminal information for libellous verses and for a caricature imputing to him professional misconduct in the conduct of a case. Sir W. Garrow's Cam, 3 Chit, Cr. Law, 884. But it was held that the musical critic of the Times was not entitled to a criminal information for a libel charging him with corruption, on the grouud that his was not a public office. Ex part: Damson, 42 J. P. 727 ; cited 12 Q. B. D, 328. Nor a foreign duke, whose deceased father was libelled. It. pros. Vallombrosa v. Labouchere, 12 Q. B. D. 320 ; 53 L. J. Q. B. 362 ; 32 W. R. 861 ; 50 L. T. 177 ; 15 Co. C. C. 415; 48 J. P. 165. The solicitors to a railway company were refused a rule for a criminal informa- tion for a libel on them by the directors, imputing extortion and fraud. They were left to bring an action. Ex parte Baxter, 28 J. P. 326. A county court judge illegally refused to hear a barrister who appeared be- fore him. The barrister memorialised the Lord Chancellor. Obtaining no redress, he applied to the Court of Queen's Bench for a criminal information. This would have been granted him, had he not previously applied to the Lord Chancellor. R v. Marshall, 4 E. & B. 475. (398) PUBLICATION. 327 alt An Irish Q. C, in addressing the jury ;is counsel in a cause, made a fierce ..jack on the plaintiff, who was an attorney. Thisattack waspertinenl to the issue and not malicious; at the same time, the observations were unusually harsh and irritating. The plaintiff won the action, and then wrote to the <2- ( ' . calling on him to retract the charges he had made. The <-2- C. refused ; there upon plaintiff wrote the <2. ('. a letter, couched in the most offensive language, and obviously intended to provoke a duel. The Court made the rule lor a criminal information absolute; but ordered that the information should uol issue without further order. . Reg.fproa. Armstrong, Q- C. v. Kiernnn, 7 Cox, C.C6; 5 Ir- C. L. A.U71. Reg. pros. Butt, Q. C. v. Jackson, 10 Ir. L. R. 120. [*432] Publication. The prosecutor must prove that the defendant published the defamatory words. In civil cases it is necessary to show a publica- tion to some third person other than the person defamed. In crim- inal cases this is not absolutely necessary; it is sufficient to prove a publication to the prosecutor himself, provided the obvious tendency of the words be to provoke the prosecutor and excite him to break the peace. {Hicks' case, Hob. 215; Poph. 139 ; cited 6 East, 470 ; ChiUerbuck v. Chafers, 1 Stark. 471; B. v. Wegener, 2 Stark, 245 ; Phillip v. Jansen,2 Esp. 624 ; B. v. Hornbrool; Selwyn's Nisi Prius. 12th ed. at p. 1065 ; 13th ed. at p. 1000 ; B. v. Brooke, 7 Cox, C. C. 251. See post, p. 594.) In all other respects the law as to publication is practically iden- tical in civil and criminal cases. (See c. VI., ante, pp. 151 — 169.) Thus, both author, printer and publisher are each and all liable to be prosecuted for a libel contained in any book or newspaper. In the latter case the proprietor of the newspaper will also be liable. Every fresh publication of a libel is a fresh crime. The sale of every separate copy of a libel is a distinct offence. (B. v. Carlile, 1 Chitty, 453.) "'Not only the party who originally prints, but every party who utters, who sells, who gives, or who lends a copy of an offensive publication will be liable to be prosecuted as a pub- lisher." (Per Bayley, J., in B. v. Carlile, 3 B. & Aid. 169.) " The mere delivery of a libel to a third person by one conscious of its contents amounts to a publication, and is an indictable offence." (Per Wood B., in Moloney v. Hartley, 3 Camp. 213.) In the last extract the learned Baron is careful to insert the words "by one conscious of its contents." For although any delivery to a third person will amount to a prima facie publication, it is open to the defendant to prove, both in civil and criminal cases, that he deliv- ered [*433] the libel without any knowledge of the libellous nature of its contents : e.g., where a postman or messenger carries a sealed letter (per Lord Kenyon, C. J., in B. v. Topham, 4 T. R. 129), or a parcel in which libellous handbills were wrapped up {Bay v. Bream, 2 Moo. & Rob. 55), or where the defendant cannot read (per Lord Kenyon, in B. v. Holt, 5 T. R. 444). And see Emmens v. Pottle (C. A.), 16 Q. B. D. 354 ; 55 L. J. Q. B. 51 ; 34 W. R. 116 ; 53 L. T. 808 ; 50 J. P. 228. Even if the defendant had read the libel, yet if the words were innocent on the face of them, and only derived (35)9) 328 CRIMINAL LAW. a defamatory meaning from certain extrinsic facts and circumstances wholly unknown to him, then he would still be unconscious that what he published was a libel, and such a publication would be no crime ; e.g., where the libel was contained in an allegory ora riddle, to which the defendant had no clue. Again, where the defendant copied a libel knowing it to be a libel, and afterwards inadvertently delivered such copy to a third person in mistake for some other paper, it is submitted that he would not be held criminally liable for such an accident, though he would be held liable in a civil case. (See the dicta of Lord Kenyon in P. v. Topham, 4 T. R. 139 ; and in P. v. Lord Abing don, 1 Esp. 228 ; and the ruling of Abbott, C.J in R. v. Harvey, 2 B. & C. 257.) A person who took down in writing seditious words dictated by the composer was held guilty of a mis- demeanour in Ii. v. Paine, Carth. 405, although apparently no subse- quent publication by him was proved ; but if so, this case is bad law. (See Lamb's Case, 9 Rep. 60, cited ante, p. 157.) A master will be liable criminally for the acts of his servant done in the ordinary course of his employment in pursuance of his mas- ter's orders, general or express. The criminal liability of a defend- ant for such constructive publication is now defined by the 7th sec- tion of Lord Campbell's Act (6 & 7 Vict. c. 96) which, however, rather declared than altered the existing law : — " Whensoever, upon the trial of any indictment or information for the publication of a libel, under the plea, of not guilty, evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without [*434] his authority, consent or knowledge, and that the said publication did not arise from want of due care or caution on his part." The section only says that evidence may be given of such facts ; but it has always been construed to mean that such facts, if proved, shall be an answer to the indictment ; for such evidence was always admissible at common law in mitigation of punishment (if not in defence). The word " authority," in the above section, means some- thing more than the general authority given by the proprietor of a newspaper to the editor to insert in the paper whatever he thinks fit. (R. v. Holbrook and others, 3 Q. B. D. 60 ; 47 L. J. Q. B. 35 ; 26 W. R. 144 ; 37 L. T. 530 ; 4 Q. B. D. 42 ; 48 L. J. Q. B. 113 ; 27 W. R. 313 ; 39 L. T. 536 ; ante, p. 415. And see Ex parte Parry, 41 J. P. 85.) The section applies to all cases of criminal libel, blasphemous, seditious and otherwise. (P. v. Bradlaugh and others, 15 Cox, C. C. 218.) Illustrations. Merely to be in possession of a copy of a libel is no crime, unless some publi- cation thereof ensue. R. v. Beere, Carth. 409 ; 12 Mod. 219 ; Holt, 422 ; Salk. 417 ; 1 Lord Raym. 414. John Lamb's Case, 9 Rep. 60, ante, p. 157. (400) PUBLICATION. 329 Overruling R. v. Algernon Sidney, 9 Howell's St. Tr. 817, 867 ; 3 Hargrave's St. Tr! 807 ; 4 St. tr. 197. As soon as the manuscript of a libel 1ms passed oul of the defendant's posses sion and control, it is defined to be published, so far as the defendant is con- cerned. Per Holroyd, J., in /,'. v. Burdett, I B. & Aid. 143. A libel was printed and published ; the printer produced the manuscript from which he had printed it, and this manuscript was proved to be in the handwrit- ing of the prisoner ; there was no evidence to show that he authorized or directed the printing or publishing. This is evidence of publication sufficient to go to the jury, though the prisoner may give evidence to rebut it. R. v. Lomtt, 9C.&P. 462. Cooper told the editor of a newspaper several good stories against the Rev, J. K., and asked him to " show Mr. K. up ; " subsequently the editor published the substance of them in the newspaper ; this was held a publication by Cooper, although the editor knew of the facts from other quarters as well. R. v. Cooper, 15 L. J. Q. B. 206 ; 8 Q. B. 533. [*435] The defendant was the 'proprietor of The Times, but resided in the country leaving the management of the paper entirely to his son, with whom he never interfered. A libel on the late Lord Cowper having appeared therein, the defendant was held criminally liable, and convicted. R. v. Walter, 3 Esp. 21 And see R. v. Cutch, Fisher, and Alexander, Mo. & Mai. 433. A rule was granted calling on Wiatt to show cause why he should not be attached for selling a book containing a libel on the Court of King's Bench. The book was in Latin. On his filing an affidavit that he did not understand Latin, and giving up the name of the printer from whom he obtained it and the name of the author, the rule was discharged. R. v. Wiatt (1722), 8 Mod. 123. The defendant was a bookseller, who published a seditious libel written by the Rev. Gilbert Wakefield ; he was convicted, but filed an affidavit in mitiga- tion of punishment that he had no knowledge whatever of the nature of the book or its contents ; he was accordingly discharged on payment of a fine of thirty marks. The Rev. Gilbert Wakefield was sentenced "to two years' im- prisonment. R. v. OutheU (1799), 27 Howell's St. Tr. 642. There appeared in MisVs Weekly Journal an account professedly of certain intrigues, &c, at the Persian Court: but any reader of ordinary intelligence could see that it was the English Court that the author really meant, that the Sultan " Esreff " was intended for George II., his father the late Sultan "Merewits" for George I., " Sophi " for the Pretender, &c. &c. The two compositors who set it up divided the work between them, one taking one column, the other the next. It was almost impossible that thus they could gain any notion of the general sense of what they were printing. Yet one of them was convicted of publishing a seditious libel ; and so was the servant whose business " was only to clap down the press." R. v. Knell (1728), 1 Barnard. 305. R. v. Goerk, ib. 304. In Massachusetts it has been held that the publisher of a newspaper is not liable for publishing an article wdiich he reasonably and bond fide believes to be a fancy sketch or a fictitious narrative, in no way applicable to any living person ; although the writer intended it to be libellous of the plaintiff. [Probably this would be a defence in England in a criminal case, if not in a civil action. See Precedent No. 33, p. 638.] Smith v. Ashley (1846), 52 Mass. (11 Met.) 367. Dexter v. Spear, 4 Mason, 115. See Chubb v. Flannagan, 6 C. & P. 431. Rev. Samuel Paine sent his servant to his study for a certain paper which he wished to show Brereton ; the servant by mistake brought a libellous epitaph on Queen Mary which Paine inadvertently handed to Brereton. This would probably be deemed a sufficient publication in a civil case (note to Mayne v. Fletcher, 4 Man. & Ry. 312), but was held insufficient in a criminal case. (401) 330 CRIMINAL LAW. R. v. Paine (1695), 5 Mod. 107. Bee the remarks of Lord Kenyon in R. v. Lord Abingdon, 1 Esp. 228. A libel appeared in the Man oftlie 'World of May 11th. On May 25th the defendant was appointed publisher of the paper and. the back-stock was sent to [*436] his office. On December 13th, the relator's agent applied at the defendant's office for a copy of the number of May 11th, and the defendant told his assistant to look it up and deiiver it, winch was done. The defendant swore thai he had not examined the back numbers at all and knew nothing of the libel. The Lord Chief Justice intimated that in those circumstances no jury would ever find the defendant guilty of criminally publishing the libel. R. v. Barnard, Ex parte Lord Monoid Oower, 43 J. P. 127. The defendant and Mrs. Besant carried on business as publishers at 22, Stone- cutter Street, the defendant being rated as the occupier of those premises. Ramsey was their manager. They at first published two papers, the National Reformer and the Freethinker ; but in 1881 they arranged with Ramsey that, in addition to managing their business, he might also carry on a publishing busi- ness of his own on their premises, and Ramsey's salary was reduced in conse- quence of this arrangement. In November, 1881, the defendant was registered as proprietor of the National Reformer and Ramsey as proprietor of the Free- thinker. In 1882 copies of the Freethinker, containing blasphemous libels, were purchased at 22, Stonecutter Street from a shopman in the employ of the defendant and Mrs. Besant. The defendant knew that the Freethinker was still being published and sold on his premises, but did not know anything as to the contents of the numbers in question. Held, by Lord Coleridge, C. J., that the defendant was prima facie liable, but that on the above facts the jury might acquit him under sect. 7 of Lord Campbell's Act. Verdict, Not guilty. R. v. Bradlaugh and others, 15 Cox, C. C. 217. And see R. v. Ramsey and Foote, 15 Cox, C. C. 231 ; 48 L. T. 734 ; 1 ' C. & E. 132. Privilege. A defendant on the trial of any information or indictment may give evidence to show that the alleged libel was privileged by reason of the occasion ; and, unless such privilege be absolute, the prose- cutor may rebut this defence by evidence of malice, precisely as in civil cases ; ante, cc. VIII. and IX. Except in such cases of privilege it is quite unnecessary to prove malice in any criminal proceeding for a defamatory libel ; it is enough that the defendant published that which the jury have found to be a libel. 'After conviction, however, the defendant is allowed to file affidavits in mitigation of punishment, showing that he honestly believed in the truth of what he wrote, and published it without malice. (R. v. Sir F. Burdelt, 3 B. & Aid. 95.) The law is otherwise in Scotland ; there malice must be [*43 7] proved in all criminal proceedings, though it never need be in civil. (1 Hume, 342 ; Borthwick, 190,^195.) Justification. But it is in the matter of justification that the main differ- ence lies between civil and criminal proceedings. In a civil trial, as we have seen, ante, p. 170, the truth of the matters charged in a libel is and always was a perfect answer to the action ; the plaintiff was never allowed to recover damages for an injury done to a repu- tation to which he had no right. But in all criminal proceedings the truth of the libel by the common law constituted no defence. (40') JUSTIFICATION. 331 The maxim used to be " the greater the truth the greater the libel ;" meaning that the injudicious publication of the truth about A. would be more likely to provoke him to a breach of the peace than if some falsehood were invented about him, which he could easily and completely refute. Accordingly, on a criminal trial, whether of an indictment or an information, no evidence could be received of the truth of the matters charged, not even in mitigation of pun- ishment. But now, by the 6th section of Lord Campbell's Act (G & V Vict. c. 90), "On the trial of any indictment or information for a defamatory libel, the defendant having pleaded such plea as hereinafter mentioned, the truth of the matters charged may be inquired into, but shall not amount to a defence, unless it was for the public benefit that the said matters charged should be published. To entitle the defendant to give evidence of the truth of such mat- ters charged as a defence to such indictment or information, it shall be necessary for the defendant, in pleading to the said indict- ment or information, to allege the truth of said matters charged in the manner now required in pleading a justification to an action for defamation, and further to allege that it was for the public bene- fit that the said matters charged should [* 438] be published, and the particular fact or facts by reason whereof it was for the public benefit that the said matters charged should be published ; to which plea the prosecutor shall be at liberty to reply generally, denying the whole thereof. If after such plea the defendant shall be con- victed on such indictment or information, it shall be competent to the Court, in pronouncing sentence, to consider whether the guilt of the defendant is aggravated or mitigated by the said plea and by the evidence given to prove or disprove the same : Provided always, that the truth of the matters charged in the alleged libel complained of by such indictment or information shall in no case be inquired into without such plea of justification : Provided also, that, in addi- tion to such plea, it shall be competent to the said defendant to plead a plea of not guilty : Provided also, that nothing in this Act con- tained shall take away or prejudice any defence under the plea of not guilty which it is uoav competent to the defendant to make under such plea to any action or indictment, or information for defamatory words or libel. And here note that there is still a most important distinction between civil and criminal cases on this point. The mere truth is an answer to a civil action, however maliciously and unneces- sarily the words were published. But in a criminal case, the defendant has to prove, not only that his assertions are true, but also that it was for the public benefit that they should be published. Moreover, the statute does not apply in cases of blasphemous, obscene, or seditious words. (H. v. Duffy, 9 Ir. L. R. 329 ; 2 Cox, C. C. 45 ; Ex parte O'Brien, 12 L. R. Jr." 29 ; 15 Cox, C. C. 180.) It does not apply, by its express terms, unless there be a special plea of justification. In short, the truth of the matter complained of " can only become a defence under the statute, and then only when the statutory conditions are complied with." Wherever the Act does not apply, the law remains still as it was settled prior to that (403) 332 CRIMINAL LAW. Act. Hence a magistrate at the preliminary investigation of a charge of libel, whether under s. 5 of the 6 & 7 Vict. e. 96, or at common law, has [* 439] no power to receive or perpetuate any evi- dence of the truth of the matters charged (li. v. Tovmsend, 4 F. & F. 1089; 10 Cox, C. C. 356 ; It. v. Sir Robert Carden, 5 Q. B. D. 1 ; 49 L. J. M. C. 1 ; 28 W. R. 133 ; 41 L. T. 504 ; 14 Cox, C. C. 359), unless the libel appeared in a newspaper, as to which see s. 4 of the Newspaper Libel Act, 1881, ante, p. 384. (404) [*«o] CHAPTER XVI. BLASPHEMOUS WOEDS. It is a misdemeanour, punishable by indictment and by criminal information, to speak or write and publish, any profane words vili- fying or ridiculing God, Jesus Christ, the Holy Ghost, the Old or New Testament, or Christianity in general, with intent to shock and insult believers, or to pervert or mislead the ignorant and un- wary. This is the crime of blasphemy, and on conviction thereof the blasphemer may be sentenced to fine and imprisonment to any extent, in the discretion of the Court. Formerly he was frequently also sentenced to the pillory or to banishment.* He may also be required to give security for his good behaviour for any reasonable time after he comes out of prison ; and can be detained in prison till such sureties be found. [Thomas Emlyn, in 1703, and Richard Carlile, in 1820, were condemned to find sureties for their good behaviour throughout the remainder of their lives.] Also under the 60 Geo. III. & 1 Geo. IV. c. 8, s. 1 the Court [*44l] may, after conviction, make an order for the seizure of copies of the blasphe- mous libel in the possession of the prisoner, or in the possession of any person to his use. (See the Statute in Appendix D. ijost, p. 712.) The defendant cannot plead a justification : nor can he be permitted at the trial to argue that his blasphemous libel is true. Per Abbott, L. C. J., in Cooke v. Hughes, R. & M. 115. The intent to shock and insult believers, or to pervert or mislead the ignorant and unwary, is an essential element in the crime. Actus nonfacit reum, nisi mens sit rea. The existence of such an intent is a question of fact for the jury, and the otitis of proving it lies on the prosecution. The best evidence of such an intention is usually to be found in the work itself. If it is full of scurrilous and oppro- brious language, if sacred subjects are treated with offensive levity, if indiscriminate abuse is employed instead of argument, then a malicious design to wound the religious feelings of others may be readily inferred. If, however, the author abstains from ribaldry and licentious reproach, a similar design may still perhaps be * In Scotland up till the year 1813 blasphemy was in certain circumstances a capital offence. The only person executed for blasphemy appears to have been Thomas Aikenhead, a young student just twenty years of age, and the son of a surgeon in Edinburgh ; he seems to have been very harshly, if not illegally, treated ; no counsel appeared for him : his crime consisted in loose talk about Ezra and Mahomet and in crude anticipations of Materialism. He was hanged on January 8th, 1697, buried beneath the gallows, and all his moveables for- feited to the Crown. (See Maclaurin's Crim. Cases, 12 ; 3 Mer. 382, n.) Two other persons were prosecuted — Kinninmouth and Borthwick — but neither was convicted ; in the first case the prosecution dropped, while Borthwick fled the country. (Hume on Crimes, II. 518.) (405) 334 BLASPHEMOUS WORDS. inferred if it be found that he has deliberately bad resort to sophis- tical arguments, that he has wilfully misrepresented facts within his knowledge, or lias indulged in sneers and sarcasms against all that is good and noble ; for then it is clear that he does not write from conscientious conviction, but desires to pervert and mislead the ignorant ; or at all events that he is criminally indifferent to the distinctions between right and wrong. But where the work is free from ail offensive levity, abuse and sophistry, and is in fact the honest and temperate expression of religious opinions conscientiously held and avowed, the author is entitled to be acquitted, for his work is not a blasphemous libel. "It is, indeed, still blasphemy," says Mr. Justice Erskine in Shore v. Wilson, 9 Clark & Fin., at pp. 524-5, " punishment at common law, scoffingly or irreverently to ridicule or impugn the doctrines of the Christian faith ; yet any [*442] man may, without subjecting himself to any penal consequences, soberly and rever- ently examine and question the truth of those doctrines which have been assumed as essential to it." Mr. Justice Coleridge said, in the same case, 9 Clark & Fin., at p. 539, " I apprehend that there is nothing unlawful 'at common law in reverently denying doctrines parcel of Christianity, however fundamental. It would be difficult to draw a line in such matters according to perfect orthodoxy, or to define how far one might depart from it in believing or teaching without offending the law. The only safe and, as it seems to me, practical rule, is that which I have pointed at, and which depends on the sobriety, and reverence, and seriousness with which the teaching or believing, however erroneous, are maintained." And mere vehemence or even virulence of argument must not be taken as evidence of this intent to injure. Sarcasm and ridicule are fair weapons, even in heterodox hands, so long as they do not degen- erate into profane scoffing or irreverent levity. " If the decencies of controversy are observed, even the fundamentals of religion may be attacked without a person being guilty of blasphemous libel." (Per Lord Coleridge, C. J., in R. v. Ramsey and Foote, 48 L. T. 739 ; 15 Cox, C. C. 231 ; 1 C. & E. 146 ; post, p. 701.) It is not blasphemy, then, to seriously and reverently propound any opinions, however heretical, which are conscientiously enter- tained by the accused. Honest error is no crime in this country, so long as its advocacy be rational and dispassionate, and do not degen- erate into fanatical abuse, or into scurrilous attacks upon individ- uals. Heresy and blasphemy are entirely distinct and different things. "The law visits not the honest errors, but the malice of mankind." ("Starkie on Libel," 2nd edition, p. 147.) "Every man may fearlessly advance any new doctrines, provided he does so with proper respect to the religion and government of the country." (Per Best, J., in li. v. Burdett (1820), 4 B. & Aid. 132.) [*443] Or, to quote the words of Lord Mansfield in the great case of Evans v. The Chamberlain of London (1767), "The common law of England, which is only common reason or usage, knows of no prosecution for mere opinions." (16 Pari. History (1813), p. 325 ; 2 Burn, Eccl Law, 218.). (406) BLASPHEMY. 335 Illustrations. Taylor was convicted of uttering disgusting and scurrilous language about Jesus Christ in the market-place at Guildford (see post, p. 451 ). R. v. Taylor, Ventris, 293 ; 3 Keble, 607 ; Tremayne's Entries, 226. It is blasphemy to write and publish that Jesus Christ is an impostor, the Christian religion a mere fable, and those who believe in it infidels to God. R. v. Eaton, 31 Howell's St. Tr. 927. It is blasphemy to write and publish that Jesus Christ was an impostor, a murderer in principle, and a fanatic. Such words would be libellous of whom- oever written, and the jury also had found as a fact that the intention of the prisoner was malicious ; and the Court on motion refused to arrest the judgment. R. v. Waddington, 1 B. & C. 26. A publication which denies the divinity of Jesus Christ is not a blasphemous libel, if written in a reverent and temperate tone, and expressing the conscientious convictions of the author. Shore and others v. Wilson and others (1842), 9 Clark & F. 355. Edward Elwall was indicted before Mr. Justice Denton for a book alleged to be blasphemous, entitled '"A True Testimony for God and for His Sacred Law; being a plain, honest defence of the First Commandment of God against all Trinitarians under Heaven, Thou shalt have no other gods but me." He was acquitted, though he admitted publication. E. v. Elwall, Gloucester Summer Assizes, 1726. To write and publish that the Christian miracles were not to be taken in a literal but in an allegorical sense was held blasphemous in 1729 ; but there the Court clearly considered that to attack the miracles was to attack Christianity in general, and could not be included amongst " disputes between learned men upon particular controverted points." " I would have it taken notice of," says Lord Raymond, C. J., " that we do not meddle with any differences of opinion, and that we interpose only where the very root of Christianity is struck at." R. v. Woolston, 2 Str. 834; Fitz. 66 ; 1 Barnard. 162. To deliver a lecture publicly maintaining that the character of Christ is defective, and his teaching misleading, and that the Bible is no more inspired than any 'other book, was held blasphemy by the Court of Exchequer in a civil case without any regard to the style of the lecture, or the religious convictions of the lecturer. „ Cowan v. Milbourn, L. R. 2 Ex. 230 ; 36 L. J. Ex. 124 ; 15 W. R. 750 ; 16 L. T. 290. It was held blasphemy to publish or sell Paine's " Age of Reason." R. v. Williams (1797), 26 Howell's St. Tr. 656. R. v. Richard Carlile (1819), 3B.& Aid. 161 ; 1 Chit. 451. [*444] Richard Carlile on his trial read over to the jury the whole of Paine's " Age of Reason," for selling which he was indicted. After his conviction, his wife published a full, true, and accurate account of his trial, entitled "The Mock Trial of Mr. Carlile," and in so doing republished the whole of the "Age of Reason," as a part of the proceedings at the trial. Held, that the privilege usually attaching to fair reports of judicial proceedings did not extend to such a colourable reproduction of a book adjudged to be blasphemous ; and that it is unlawful to publish even a correct account of the proceedings in a court of justice, if such an account contain matter of a scandalous, blasphemous, or indecent nature. R. v. Mary Carlile (1819), 3 B. &. Aid. 167. See also Steele v. Brannan, L. R. 7 C. P. 261 ; 41 L. J. M. C. 85 ; 20 W. R. 607 ; 26 L. T. 509 ; post, p. 475. Richard Carlile was sentenced to pay a fine of £1,500, to be imprisoned for three years, and to find sureties for his good behaviour for the term of his life. y He was still in Dorchester Gaol in 1825. In the meantime the sale of heterodox books continued at his shop, and his shopmen were sentenced to various terms of imprisonment. In June, 1824, William Campion, John Clarke, William Maley, and Thomas Perry were sentenced to imprisonment in Newgate for three years, Richard Hassell for two years, and Thomas Jeffryes for a year and a halt for selling blasphemous publications. (407) 336 BLASPHEMOUS WORDS. An information was filed against Jacob Hive for publishing a profane and blasphemous libel, tending to vilify and subvert the Christian religion, and to blaspheme our Saviour Jesus Christ, to cause his Divinity to be denied, to represent him as an impostor ; to scandalize, ridicule, and bring into contempt his most holy life and doctrine ; and to cause the truth of the Christian religion to be disbelieved and totally rejected, by representing the same as spurious and chimerical, and a piece of forgery and priestcraft. R. v. Hive (1756), Dig. L. L. 83. An information was exhibited against Peter Annet for a certain malignant, profane, and blasphemous libel, intituled "The Free Inquirer," tending to blaspheme Almighty God, and to ridicule, traduce, and discredit his Holy Scriptures, particularly the Pentateuch, and to represent, and to cause it to be believed, that the prophet Moses was an impostor, and that the sacred truths and miracles recorded and set forth in the Pentateuch were impositions and false inventions ; and thereby to diffuse and propagate irreligious and diabolical III UUIO a.llli;illllM. 1U UUIO .muiiiiui.u.. *.~ ^»^„v*v.„ j. -— which, and of his poverty, of his having confessed his errors in an affidavit, and of his being seventy years old, and some symptoms of wildness that appeared on his inspection in Court, the Court declared they had mitigated their intended sentence to the following, viz. to be imprisoned in Newgate for a month ; to stand twice in the pillory, with a paper on his forehead, inscribed blasphemy ; to be sent to the house of correction to hard labour for a year ; to pay a fine of 6s. 8d., and to find security, himself in 100/. and two sureties in 50/. each, for his good behaviour during life." R. v. Peter Annet (1763), 1 Wm. Bl. 395; 3 Burn, Eccl. Law, 9th ed. 386. ,. . [* 445] An information was exhibited against John Wilkes for publishing an obscene and impious libel, tending to vitiate and corrupt the minds and man- ners of his Majesty's subjects ; tolntroduce a total contempt of religion, mod- esty, and virtue ; to blaspheme Almighty God ; and to ridicule our Saw" our and the Christian religion. R. v. Wilkes (1763), 4 Burr. 2527 ; 2 Wils. 151. In 1817 Mr. Wright, of Liverpool, was prosecuted at common law for deny- inf the existence of a future life ; but the prosecution was abandoned. li. v. Wright, 3 Mer. 386, n. In the same year William Hone was tried on three successive days, Decem- ber 18th, 19th, and 20th, 1817, for publishing three parodies on the Catechism, the Litany, and the Athanasian Creed, before Abbott, J., on the first day, and Lord Ellenborough, C. J., on the other two. He was on each occasion ac- quitted, the libels being political attacks on the Government, and not written with any intent of ridiculing the compositions parodied. " The Three Trials of William Hone," London, 1818. Eeflections on the Old Testament may amount to blasphemy. R. v. Hetherington (1841), 5 Jur. 529. Queen Mob was found by a jury in 1841 to be a blasphemous libel. R. v. Moxon, 2 "Mod. St. Tr. 356. But this prosecution was a purely vindictive one by Hetherington, and no sentence was ever passed. Blackburn, J., expresses his disapproval of their finding in R. v. Ilicklin, L. R. 3 Q. B. 374 ; 37 L. J. M. C. 89 ; 16 W. R. 803 ; 11 Cox, C. C. 19 ; 18 L. T. 395. Southwell was convicted of blasphemy in January, 1842, for publishing the " Oracle of Reason." Later in the same year Adams was tried befere Mr. Justice Erskinc at Glou- cester Assizes for selling No. 25 of the said " Oracle of Reason," and convicted. At the same Assizes George Jacob Holyoake was tried before Mr. Justice Erskine for oral blasphemv. It appeared that he had been lecturing on emi- gration and the poor laws,' and at the close a man, said to have been sent on purpose to entrap him, rose and said : " The lecturer has been speaking of our duty to man, has he nothing to tell us as to our duty to God ? " Holyoake, (408) BLASPHEMY. 337 being thus challenged, replied, "I do not believe there is such a thing as a God. ... I would have the Deity served as they serve the subalterns — place him on half-pay." But Holyoake was known to be a friend of Southwell's, and a writer in the " Oracle of Reason," and he was convicted and sentenced to six months' imprisonment. See Trial of Holyoake, London, 1842. Father Vladimir Petcherini, a monk, was indicted in Ireland in 1855 for hav- ing contemptuously, irreverently, and blasphemously burnt a Bible in public, with intent to bring the same into disregard, hatred, and contempt, and in other counts with intent to bring religion into discredit, and in other counts with having caused and procured it to be burnt with such intents. There was some evidence that a Bible had been burnt in the defendant's presence among a heap of other books and papers, but very little that he knew it or sanctioned it. Greene, B., directed the jury that if he sanctioned it, it would follow " as of [* 446] course that the intention of the act could only be to bring into con- tempt the authorized version of the Holy Scriptures." The defendant was acquitted. Reg. v. Petcherini, 7 Cox, C. C. 79. A man called Pooley was indicted at the Bodmin Summer Assizes, July, 1857, before Coleridge, J., his son, the present Lord Coleridge, C. J., being counsel for the prosecution. The prisoner had scribbled on a gate some dis- gusting language concerning Jesus Christ, and was convicted of a blasphemous libel, but was subsequently discovered to be insane. It. v. Pooley, Digest of Criminal Law, 97. In November, 1868, John Thompson was committed for trial by the South- ampton magistrates on the prosecution of the Rev. Arthur Bradley, the incum- bent of a church there, for publishing the following blasphemous libel : — " I believe Jesus of Nazareth to be the Messiah at his first coming, as an anti- typical Paschal Lamb who died for sins in allegory ; and I believe John Coch- ran of Glasgow to be the Messiah at his second coming, and the antitypical High Priest, who has taken away sin in reality." In March, 1869, the Grand Jury ignored the bill. Foote, Ramsey, and Kemp were indicted for blasphemous libels and pictures contained in the Christmas number of the "Freethinker;" Foote being the editor, Ramsey the registered proprietor, and Kemp the printer and publisher of that paper. On the first trial, March 1st, 1883, the jury could not agree, and were discharged. The prisoners were tried again on Monday, March 5th, 1883, and convicted and sentenced to twelve, nine, and three months' imprison- ment respectively. North, J., directed the jury that any publication contain- ing " contumelious reproach or profane scoffing against Holy Scripture and the Christian religion " was a blasphemous libel. It. v. Foote, Ramsey, and Kemp, Times for March 2nd and 6th, 1883. In the same year Ramsey and Foote were indicted for articles which had appeared in other numbers of the "Freethinker," which were alleged to be blasphemous. Mr. Bradlaugh, M.P., was at first included also in this indict- ment, but the case against him was tried separately, and he was acquitted on the ground that he was in no way responsible for the publication. See 15 Cox, C. C. 217 ; ante, p. 436. Ramsey and Foote were tried before Lord Coleridge, C. J., on April 24th, 1883 ; his Lordship's summing up will be found printed inextenso in Appendix B., post, p. 688. The jury could not agree upon a verdict, and on Tuesday, May 1st, the Attorney-General issued his fiat for a nolle prosequi. R. v. Ramsey and Foote, 48 L. T. 733 ; 15 Cox, C. C. 231 ; 1 C. & E. 126. For other cases of blasphemy at common law, see Traske's Case (1618), Hobart, 326 ; post, p. 450. R. v. Atwood (1618), Cro Jac. 421 ; 2 Roll. Abr. 78 ; post, p. 450. R. v. Glendon (1712), cited, 2 Str. 789. R. v. Hall (1721), 1 Str. 416. Paterson's Case (1843), 1 Brown (Scotch), 629. Robinsons Case (1843), ib. 643. 22 LIB. & SLAN. (409) 338 BLASPHEMOUS WORDS. Heresy and blasphemy are entirely distinct and different things, both in their essence and in their legal aspect. Originally [*447] both were ecclesiastical offences not cognizable in the secular courts. Then statutes were passed under which both became crimes punish- able in the ordinary law courts. Now heresy is once more a purely ecclesiastical offence, punishable only in the clergy ; while blas- phemy is the technical name for a particular offence against the state. Heresy (alpeoic, from alptopai, I choose for myself) is the deliberate selection and adoption of a particular set of views or opinions, which the majority consider erroneous. To persist in the tenet of your choice after its error and its injurious tendency have been pointed out to you was regarded as a sin, and the obstinate heretic who re- fused to recant was bidden to do penance for the good of his soul. Blasphemy, on the other hand, is a crime against the peace and good order of society ; it is an outrage on men's religious feelings, tending to a breach of the peace. The word necessarily involves an intent to do harm or to wound the feelings of others, for it is de- rived from (Ha-rrTu, I hurt, and ^p.1, I speak, and denotes, therefore, " speaking so as to hurt." Heresy. At common law heresy was no crime. The secular courts took no cognizance of any man's religious opinions ; and indeed before the days of Wiclif heretics were scarce. Towards the end of the four- teenth century, however, heresy came to be regarded as a crime punishable with death, and acts were passed in the reigns of Henry IV. and Henry V., which condemned all heretics to be burnt alive and gave the clergy the power of defining heresy just as they pleased. This state of things lasted till the reign of Henry VIII., when the law was rendered in some particulars less severe. Under Edward VI. there were but two executions for heresy. Mary re- stored the old system for a short period, during which about 300 per- sons were burnt. But by the 1 Eliz. c. 1,8. 6, all statutes relating to heresy were repealed, though somehow two men were burnt in her reign, and two under James I. " At this day," says Sir Edward Coke, " no person can be indicted or impeached for heresy before any temporal judge, or other that hath temporal jurisdiction." (12 Rep. 57.) By the 29 Car. II. c. 9, s. 1, the writ de hceretico comburenclo was abolished ; but s. 2 of the same act expressly provides " that nothing in this act shall ex- tend, or be construed to take away or abridge the jurisdiction of Protestant archbishops or bishops, or any other judges of any eccle- siastical courts, in cases of atheism, blasphemy, heresy, or schism, and other damnable doctrines and opinions, but that they may pro- ceed to [*448] punish the same according to His Majesty's ecclesias- tical laws, by excommunication, deprivation, degradation, and other ecclesiastical censures, not extending to death, in such sort, and no other, as they might have done before the making of this act, any- thing in this law contained to the contrary in anywise notwithstand- ing." By the 53 Geo. III. c. 127, s. 3, it is enacted that " no person (410) HERESY. 339 who shall be pronounced or declared excommunicate shall incur any civil penalty or incapacity whatever, in consequence of such excommunication, save such imprisonment, not exceeding six months, as the court pronouncing or declaring such person excommunicate shall direct." These enactments are obsolete ; but they were better repealed. I do not know that any layman has been prosecuted for heresy since 1640. And indeed there is considerable authority for holding that at the present day the ecclesiastical courts no longer possess any criminal jurisdiction over laymen. In Burcler v. ,3 Curteis, 827, May 31st, 1844, Sir H. Jenner Fust says : " As against laymen, whatever may be the nature of the charge, undoubtedly the court has no jurisdiction to entertain a criminal suit." And though four years earlier a criminal suit was commenced against a layman for an incestuous marriage, Dr. Lushington contented himself with pro- nouncing the marriage null and void, which was clearly within his power, and did not impose any punishment or penance on the de- fendant, (Woods v. Woods, 2 Curt. 516, July 18th, 1840) and in Philllmore v. Mac/ion, 1 P D. 481, Lord Penzance says : " Speak- ing generally, and setting aside for the moment all questions as to the clergy, it cannot, I think, be doubted that a recurrence to the punishment of the laity for the good of their souls by ecclesiastical courts, would not be in harmony with modern ideas, or the position which ecclesiastical authority now occupies in the country. Nor do I think that the enforcement of such powers, where they still exist, if then do exist, is likely to benefit the community." This much is quite clear at all events — that no ecclesiastical court can any longer proceed against a layman for mere nonconformity. By the 4th section of the Toleration Act (1 William and Mary c. 18), no dissenter shall be prosecuted in any ecclesiastical court for or by reason of his nonconformity to the Church of England. And although by s. 1 7 it was provided that the benefits of the act should not extend to Unitarians, this exception was repealed in 1813 by the statute 53 Geo. III. c. 160. With respect to dissenting ministers, how- ever, one relic of the past still lingers. By s. 5 of 52 Geo. III. c, 155, any justice of the peace may call on the minister of " any place of religious worship certified " under that act to make a declaration to the" following [*449] effect : — " I am a Christian and a Protest- ant, and as such, I believe that the Scriptures of the Old and New Testament contain the revealed will of God, and I receive the same as the rule of my doctrine and practice." It is improbable that any justice of the peace is aware at the present moment that he pos- sesses this power, still less probable is it that he would ever exercise it. The section applies only to ministers of chapels certified under the 53 Geo. III. c. 155, and very few, if any, dissenting chapels are certified under that Act : they are all, I believe, " registered " under the more recent and comprehensive Act, 18 & 19 Vict. c. 81, an Act which applies to Jews, Roman Catholics and every other denomina- tion, and which requires no declaration of any kind. Still it is wrong that a justice of the peace should have the power to impose such a test on any one, and the section should be repealed forthwith. (411) 340 BLASPHEMY. Even over clergymen of the Established Church the power of the Ecclesiastical Courts has been greatly restricted by the judgment of Her Majesty's Privy Council (including the Archbishop of Canter- bury), in the case of the Rev. Rowland Williams, Februarys, 1864, which decided that it is not an ecclesiastical offence, even for the clergy, to dispute the dates and authorship of the several Books of the Old and New Testaments, to deny that the whole of the Holy Scriptures Mas written under the inspiration of the Holy Spirit, to reject parts of Scripture upon their own opinion that the narrative is inherently incredible, to disregard precepts in Holy Writ because they think them evidently wrong, so long as they do not contradict any doctrine laid down in the Articles or Formularies of the Church of England. ( Williams v. Bishop of /Salisbury, Wilson v. Fendall (1864), 2 Moore, P. C. (N. S.) 375 ; Brodrick & Fremantle, 247 ; Gorham v. Bishop ofTJxeter (1850) ib. 64. It must, moreover, be pointed out, before leaving the Ecclesiasti- cal Courts, that no blasphemous publication, which is punishable in the secular courts, can posibly be taken cognizance of in the ecclesi- astical. For " where the common or statute law giveth remedy in foro seculari (whether the matter be temporal or spiritual) the con- usance of that cause belongeth to the King's temporal Court only." (Coke upon Littleton, 96 b., and see Phillimore v. Machon, 1 P. D. 481.) Hence it is only over blasphemous libels not punishable by the common law or under any statute that the Ecclesiastical Courts can have any jurisdiction at all. (CtcrPs case, 2 Strange, 89; 1 Barnard. 29.) The canon law, speaking generally, is not binding, at all events on laymen. " The canon law forms no part of the law of England, unless it has been brought into use and acted upon in this country : [* 450] the burden of proving which rests on those who affirm the adoption of any portion of it in England." (Lord Denman, C. J., in The Queen v. The Archbishop of Canterbury, IT Q. B. 49 ; 1 7 L. J. Q. B. 268 ; Middleton v. Croft, Cas. temp. Hard- wicke, 57, 326. See Year Book, 34 Hen. VI., f'o. 38 (1459) ; Prisot, c. 5 ; Fitch. Abr. quare imp. 89 ; Bro. Abr. qu. imp. 12.) Hence the Ecclesiastical Courts have no concurrent criminal jurisdiction over libels ; and their jurisdiction, by way of civil proceeding for defamation, is expressly taken away by the 18 & 19 Vict. c. 41, s. 1. Blasphemy. So much for the ecclesiastical offence of Heresy. We come now to the law relating to Blasphemy. How are the secular Courts con- cerned in such a matter at all ? The answer in former days was clear and obvious. The secular Courts interfered to punish blasphemous libels for the same reason as they did in the case of any other libel, viz., in order to prevent a disturbance of the peace. Blasphemous preaching and writing led to dangerous outbreaks of fanaticism, and the State had, therefore, a direct interest in their suppression. (412) IN THE SEVENTEENTH CENTURY. 341 This was the point decided in the Star Chamber, in Traske's case (1618), the earliest reported decision on the subject. The defend- ant, John Traske, was, in the words of the report, "a minister that held opinion that the Jewish Sabbath ought to be observed, and not ours, and that we ought to abstain from all manner of swine's flesh. Being examined upon these things, he confessed that lie had di- vulged these opinions, and had laboured to bring as many to his opin- ion as he could. And had also written a letter to the king, wherein he did seem to tax his majesty of hypocrisy, and did expressly in- veigh against the Bishops High Commissioners, as bloody and cruel in their proceedings against him, and a Papal Clergy. Now he, being called ore te/ius, was sentenced to fine and imprisonment, not for holding those opinions (for those were examinable in the Eccle- siastical Courts and not here), but for making of conventicles and factions by that means, which may tend to sedition and commotion, and for scandalizing the king, the bishops and the clergy." (Hobart's Reports, 236.) In the same year (1618) there was a similar decision in the King's Bench, in Atwood's case, Cro. Jac. 421 ; 2 Roll. Abr. 78. The lan- guage complained of in that case sounds to us now very harmless ; it was aimed chiefly at the prevailing mode of worship: — "The [* 451] religion now professed is but fifty years old : preaching is tut prating ; prayer once a day is more edifying." The Court at first (in Easter Term) doubted if they had jurisdiction, as the words did not clearly tend to a breach of the peace. The Attorney-Gen- eral, Sir Henry Yelverton, thought the case ought to go before the Ecclesiastical Court of High Commission. (Croke, Jac. 421.) But the King's Bench in Michaelmas Term decided that the indictment lay ; " for these words are seditious words against the State of our Church and against the peace of the Realm, and although they are spiritual words, still they draw after them a temporal consequence, — viz., the disturbance of the peace." (2 Roll's Abridgment, 78.) The next decision that we have on the subject is B. v. Taylor (1676), 1 Ventr. 293 ; 3 Keble, 607, 621 ; Tremayne's Entries, p. 226. This case contains the celebrated dictum of Sir Matthew Hale, that "Christianity is parcel of the laws of England," a phrase that is very often quoted, and has, I think, been misunderstood. Let us first look at the facts of the case which was before him, for it is most unfair to learned judges to seize on one line of a judgment, force it from its context, and treat it as a general proposition of abstract law to be pushed to all extremes. Taylor was proved to have preached aloud and persistently in the market-place at Guildford words of which the following are a sample : — " Christ is a Whoremaster, and Religion is a Cheat, and Profession is a Cloak, and they are both cheats. . . . All the Earth is mine, and I am a King's Son ; my Father sent me hither, and made me a Fisherman to take Vipers, and I neither fear God, Devil nor Man ; I am a Younger Brother to Christ, an Angel of God. . . . No Man fears God but an Hypocrite. . . . Christ is a Bastard. . . . God damn and confound all your Gods," &c. The information, which is set out in full in Tremayne's Entries, p # (413) 342 BLASPHEMY 226, alleged, among other things, that these words tended to destroy Christian government and society. It was no doubt argued on behalf of Taylor, as it was in the earlier case of Atwood, that the offence was punishable only in the spiritual Court. But " Hale said that such kind of wicked, blasphemous words were not only an offence to God and religion, but a crime against the laws, state, and government, and therefore punishable in this Court ; for to say Religion is a cheat is to dissolve all those obligations whereby the civil societies are preserved ; and Christianity is parcel of the laws of England, and therefore to reproach the Christian religion is to speak in subversion of the law." Or, as the judgment is more briefly given in the report in 3 Keble, at [*452] p. 607 : — "Hale, C. J. These words, though of ecclesiastical cognizance, yet that ' Religion is a cheat,' tends to dissolution of all government, and therefore punishable here, and so of contumelious reproaches of God or the Religion established." When we consider the date at which this judgment was delivered (1676), and remember how mighty a part religious fanaticism had played in the social disturbances of the earlier part of the century, it cannot, I think, be said that the decision in Taylors case was wrong either in fact or in law. The concluding sentence, as reported in Ventris, is undoubtedly too wide. It should have been limited (and probably was by the Chief Justice) to "such kind of blasphemous words " as the prisoner was charged with uttering. The earlier part of the judgment is expressly so limited. Yet the dictum at the end of the judgment of Hale, C. J., in Ventris' Report, has constantly been misconstrued into a general and abstract proposition of law, as though the Chief Justice had said, in syllogistic form, — " To disparage any part of the law of England is a crime. " Christianity is a part of the law of England. " Theref ore to disparage Christianity is a crime." But Hale, C. J., would himself have been the first to deny the major premiss. " For," as the Commissioners on Criminal Law remarked in their Sixth Report (May 3, 1841, p. 83), "It is not criminal to speak or write either against the common law of England generally, or against particular portions of it, provided it be not done in such a manner as to endanger the public peace by exciting forcible resistance." See also Jefferson's Letter to Major Cart- wright, published in Cartwright's Life and Correspondence. It is a fact, no doubt, that Christianity is the religion of the church which is by law established in this land ; but it does not follow that to attack Christianity in peaceable and temperate language is or ever was a crime. All that the Court intended to decide in Taylor's case was simply this : — "These words are not only a sin ; they are also a crime. They are punishable in a temporal Court : for they tend to subvert the established order of things, of which Christianity is a part, and are therefore dangerous to the State. They are in fact seditious." And as though to make the grounds of their decision clear beyond all doubt the Court condemned Taylor, as part of his punishment, to stand in the pillory, both at Westminster (414) IN THE EIGHTEENTH CENTURY. 343 Palace-yard and also at Guildford where he spoke the words, with a paper fixed to his head with these words written on it in large letters: — "For Blasphemous Words tending to the Subversion of all Government." (Tremayne, 226; 3 Keble, 621.) [* 453] This, then, is the first stage in the development of our law of libel. The State steps in to suppress harangues which endanger the peace and good order of society. The substance or matter of the harangue is comparatively immaterial ; the " sec- ular arm" is only concerned with its political consequences. To one charge, therefore, which has been brought against our law as to blasphemy, it is not amenable, at all events in this its earliest form. It does not "take the Deity under its protection." It does not attempt to " avenge the insult done to God." The offender is punished for his offence against his fellow-men, not for his offence against God. No judge and jury ever tried a man for a sin that was not also a crime. As Erskine, J., said, in sentencing Holyoake in 1842, " The arm of the law is not stretched out to pro- tect the character of the Almighty ; Ave do not assume to be the protectors of our God, but to protect the people from such indecent language." Very similar words were spoken by Mr. Justice Ash- hurst in passing sentence upon Williams, who was tried in 1797 for publishing Paine's Age of Reason : — " Although the Almighty does not stand in need of the feeble aid of mortals to vindicate His honor and law, it is, nevertheless, fit that courts of judicature should show their abhorrence and detestation of people capable of sending into the world such infamous and wicked books. Indeed, all offences of this kind are not only offences to God, but crimes against the law of the land, and are punishable as such, inasmuch as they tend to destroy those obligations whereby civil society is bound together. And it is upon this ground that the Christian religion constitutes part of the law of England." (26 Howell's State Trials, p. 714.) So, in 1838, Alderson, B., told the jury, in GathercoWs case, 2 Lewin C. C. at p. 254, that "a person may, without being liable to prosecution for it, attack any sect of the Christian religion, save the established religion of the country ; and the only reason why the latter is in a different situation from the others is because it is the form established by law, and is therefore a part of the consti- tution of the country. In like manner and for the same reason any general attack upon Christianity is the subject of criminal prosecu- tion, because Christianity is the established religion of the country." And he directed the jury to acquit the prisoner if they thought the libel " was merely an attack upon the Roman Catholic Church " (see ante, p. 424). This ruling, while it clearly states the grounds on which the law against blasphemy was supported, shows with equal clearness how one-sided was its operation. L*454] U But with the eighteenth century comes a new development in this branch of the law. In the case of B. v. Woolston (1729), (415) 344 BLASPHEMY Fitz. G4 ; 1 Barnard. 162, 266 ; 2 Strange, 832, the Court of King's Bench, while professing to follow B. v. Taylor, greatly extended the principle of that decision, making criminal liability depend on the heretical character of the opinions expressed. Woolston was a Fellow of Sidney College, Cambridge, who had published six "Dis- courses on the Miracles of our Saviour," urging that they were not to he taken literally, but allegorically or mystically. His trenchant arguments, which were conveyed in most forcible lan- guage, gave great offence to the bishops, and Woolston was pros- ecuted and found guilty. The indictment against him contained an express allegation that these discourses were published " with an intent to vilify and subvert the Christian religion " (see the report in Fitzgibbon) ; hence the verdict of the jury amounted to a finding (in my opinion erroneous) that such was Woolston's intent. His counsel, Dr. Worley, moved in arrest of judgment that these discourses did not amount to a libel upon Christianity, since the Scriptures were not denied ; that the offence was of ecclesiastical cognizance ; that the defendant should have been proceeded against upon the stat. 10 William HI. c. 32 ; and he was prepared to go further and argue that even though the book was a libel upon Christianity, yet the common law had not cognizance of such an offence, when he was stopped by the Court, Raymond, C. J., declaring on the authority of Taylor's case (1 Ventris, 293 ; 3 Keble, 607), that " Christianity in general is parcel of the common law of England, and, therefore, to be protected by it. Now Avhat- ever strikes at the very root of Christianity tends manifestly to a dissolution of the civil government. So that to say an attempt to subvert the established religion is not punishable by those laws upon which it is established is an absurdity. I would have it taken notice of that we do not meddle with any differences in opinion, and that we interpose only where the very root of Christianity itself is struck at, as it plainly is by this allegorical scheme, the New Testament, and the whole relation of the life and miracles of Christ being denied ; and who can find this allegory ? " Similarly, in 1708, when a man called Read was indicted for publishing an obscene libel, Chief Justice Holt expressed a strong opinion that such a publication was a purely ecclesiastical offence, not punishable in the temporal courts (Fortescue, 98 ; 11 Mod. 142). But afterwards in Curl's case (1727) (l Barnard. 29 ; 2 Strange, 788), [* 455] the judgment of Hale, C. J., in Taylor's case was cited, and the Court of King's Bench decided that an obscene libel was " punishable at common law as an offence against the peace, intend- ing to weaken the bondf of civil society, virtue, or morality ;" the Chief Justice giving his judgment somewhat guardedly : " If it reflects on religion, virtue, or morality, if it tends to disturb the civil order of society, I think it is a temporal offence " (2 Strange, 790). The same law was laid down in 1716 by Hawkins, in his " Pleas of the Crown," Book I. c. 5 : — " Offences of this nature, because they tend to subvert all religion and morality, which are the foundation of government, are punishable by the temporal judges (416) IN THE EIGHTEENTH CENTURY. 345 with fine and imprisonment." So in summing up to the jury in the Irish case of R. v. Father Petcherini (1855) (7 Cox, C. C. at p. 84), Greene, B., told them that there could be no doubt that the act complained of — burning a Bible in public — was " one of grave and serious nature, and amounts by the law of the land to a criminal offence. It has been truly stated to you that the Christian religion is part and parcel of the law of this land. Any publication or any conduct tending to bring Christianity or the Christian religion into disrespect, or expose it to hatred or contempt, is not only commit- ting an offence against the majesty of God, but is in violation of the common law of the land. Among the ways in which that offence may be committed is by exposing the Word of God, or any part of it, to obloquy or hatred. The highest authorities have laid down the law in that way, both ancient and modern." And the decision in li. v. Woolston has been followed in this generation, as recently as 1867, in a civil case, Cowan v. Milbourn, L. R. 2 i:x. 230 ; 36 L. J. Ex. 124 ; 15 W. R. 750 ; 16 L. T. 290, in which the Court of Exchequer decided that the defendant was justified in refusing to carry out a contract to let certain rooms, because the plaintiff proposed to deliver in them lectures, the titles of two of which were advertised as follows : — " The Character and Teachings of Christ ; the former defective, the latter misleading ; " " The Bible shown to be no more inspired than any other book." The action was tried in the Passage Court at Liverpool, and the Recorder directed the verdict to be entered for the defendant, but gave the plaintiff leave to move the Court of Exchequer to enter the verdict for him, the damages being contingently assessed at 10£ on each count. The plaintiff accordingly moved ex parte for a rule ?iisi in pursuance of the above leave. The lectures never were delivered, and the propositions intended to be maintained in them could hardly have been expressed on the placards in less offensive language. Yet [* 456] Kelly, C. B., held that it was clear from the advertisements that the lecturer was going to attack Christianity in general, and that to do this publicly was clearly blasphemy at com- mon law. Baron Bramwell, on the other hand, relied on the statute 9 & 10 Will. III. c. 32, s. 1, the Recorder having elicited from the plaintiff at the trial, as appears from the report in the Law Times, that he had been educated in the Christian religion. But at the end of his judgment the learned Baron seems to abandon this ground, and to admit that possibly the lecture was not positively criminal, in the sense of being indictable, while maintaining that it still was unlawful as being contra honos mores. This, no doubt, is a solid distinction in many cases'; but with all respect I venture to doubt if there can be such a distinction in slander and libel. Either the words are criminal or they are innocent. The right of free speech applies the instant the veto of the law is removed : there can be no tertium quid, no debatable ground of language not criminal, yet reprobated by the law. The learned Baron also remarked during the argument (16 L. T. 291), "I have heard it said by a learned judge that blasphemy is more in the manner and spirit of treating the subject than in the (417j 346 BLASPHEMY actual matter itself." And Baron Martin's judgment was as fol- lows : — " I am quite of the same opinion. I protest against the notion that this is any punishment of the persons advocating these opinions. It is merely the case of the owner of property exercising his rights over its use." Hence it cannot be said that either of these learned Barons concurred in the law laid down by the Lord Chief Baron. And the case is in other respects unsatisfactory as an authority on a point of criminal law. being a somewhat hurried decision, refusing an application for a rule tdsi in a civil case in which only 20l. was in dispute. Still, these cases, if they stood alone, would undoubtedly establish this proposition, that " whatever strikes at the very root of Chris- tianity tends manifestly to a dissolution of the civil government," and is therefore punishable as a crime, although the language and temper of the writer be irreproachable. This proposition appears to me to be inconsistent with the law laid down in the earlier cases ; it is in fact punishing a man for his opinions, which, as was held in Traske's case (ante, p. 450), were examinable only in the Ecclesi- astical Courts. What reason, then, is alleged for this extension of the former law ? It is based on the maxim that " every man must be taken to have intended the natural and necessary consequences of his act." This is the argument, as I understand it : — Though the writer may honestly desire to arrive at the truth, and though he may have expressed his [*457] objectionable arguments with no more pro- fanity than their statement necessarily involved, still it will be the duty of both judge and jury to consider the effect of a general dis- semination of those opinions. If the doctrines maintained are such that their direct tendency is to subvert religion, to destroy morality, and "to dissolve all the bonds and obligations of civil society," then the maxim applies, and the judge must direct a conviction, for the necessary malice is presumed. • Now every one would naturally be reluctant to construe into a crime the fair and temperate expression of opinions sincerely enter- tained, merely in obedience to a legal presumption. And it will be observed that the whole of the above argument rests on the assumption that the natural and necessary consequence of publishing heretical opinions is to destroy religion and morality, and to subvert the civil government. This assumption I deny. I can understand that where a man intentionally shocks or insults the religious feelings of others he is weakening that sentiment of reverence for holy things which is a safeguard of morality : and his conduct also may conduce to a breach of the peace. But where a man honestly states in calm and temperate language and without any sophistical argument the views which he conscientiously entertains and at which he has arrived by careful and reverent study of the question, I deny that such an avowal of heretical or even atheistical opinions tends either to subvert religion, to destroy morality, or to dissolve any of the bonds and obligations of civil society. (418) IN THE EIGHTEENTH CENTURY. 347 In the first place, how can it subvert religion ? Magna est Veritas et prcevalebit. The free discussion of doctrines cannot injure the sacred cause of truth. The orthodox possess at least as much learning and ability as the heretic. Let them confute his errors by fair argument. " Fur, if we be sure we are in the right," says Milton, in his Areopagitica (p. G5, Arber's Reprint), " and do not hold the truth guiltily, which becomes not, .... what can be more fair than when a man judicious, learned, and a conscience for aught we know as good as theirs that taught us what we know, shall . . . . openly by writing publish to the world what his opinion is, what his reasons, and wherefore that which is now taught cannot be sound." I have no fears of the results of the freest or most advanced criticism if only it be scholarly and reverential. Next, how can it be said that the frank avowal of heretical opinions necessarily conduces to immorality. There is sometimes more immorality in the concealment of such views by those who secretly entertain them. Can it be said that Woolston led an [*458] immoral life, because he disbelieved in the literal accuracy of the Gospel narrative as to the miracles? The orthodox have no monopoly of virtue ; there is no necessary connection between heresy and vice. Lastly, how can the statement of heretical views in temperate and inoffensive language by one who conscientiously believes in the truth of what he writes or says, tend in any way " to disturb civil order and good government," or to " dissolve'all the bonds and obligations of civil society." Does not a heretic pay his bills and keep his promises like any other citizen ? It is the Salvation Army and the Orangemen who cause riots in our streets, not the Secularists and Agnostics. There is one argument frequently adduced in the earlier cases in favour of prosecution for blasphemy— that all attacks upon the established religion tend to destroy the solemnity of an oath " on which the due administration of justice depends," and thus " the law will be stripped of one of its principal sanctions — the dread of future punishment." But the strength of this argument is now destroyed by the Acts recently passed permitting atheists and persons who do not believe in a future life to give evidence in our law courts. (See the 1 & 2 Vict. c. 105, s. 1 ; 32 & 33 Vict. c. 68, s. 4 ; 33 & 34 Vict. c. 49, s. 1.) Atheists even sit in parliament, and make for lis those very laws which are "the bonds and obligations of civil society." I submit, therefore, that now at the end of the nineteenth century we know by practical experience that such a book as Woolston's does not in fact produce the consequences which Lord Raymond held it would. It was perhaps natural that in those days the Chief Justice should dread such result : but we have since tried universal toleration and found it highly beneficial. It is to the public interest that heretical opinions should be freely advanced and fairly answered, without unnecessary irreverence. If any man has discovered what he honestly believes to be a valuable truth, it is right that he should publish it to the world, and if he does so bond fide and in calm and temperate language, then, however mistaken he may be, his (419) 348 BLASPHEMY publication is privileged, and he ought not to be punished as a libeller either in a civil or criminal court. III. Hence, in the nineteenth century the law against blasphemy reaches a third stage. There is no longer any danger to the State ; no amount of heretical sermons would produce a revolution now ; though if their tone were very offensive and aggravating, the audience might possibly assault the preacher. Nor does our law any longer interfere with men's religious opinions ; no Court in England, whether secular [*459] or ecclesiastical, will now take cognizance of such matters. It is the malicious intent to insult the religious feelings of others by profanely scoffing at all they hold sacred, which deserves and receives punishment. This view of our law against blasphemy was strongly advocated by that eminent lawyer, the late Mr. Stai-kie, the first edition of whose Treatise on the Law of Slander and Libel was published in 1812, the second in 1830. (See especially Vol. II., c. G, pp. 143 — 147.) This is the view adopted by the judges in the House of Lords in Shore v. Wilson, 9 CI. & Fin. 355. This is the view that has recently been stated in the admirable address of the Lord Chief Justice of England to the jury in the case of Reg. v. -Ramsey and Foote, 48 L. T. 733 ; 15 Cox, C. C. 231 ; 1 C. & E. 126. This address states in the most clear and convincing language the principles that are truly to be deduced from the early authorities on the subject. It is printed in extenso, as revised by his Lordship, in Appendix B., post, p. 688. I therefore merely quote here the following passage: — "If the law, as I have laid it down to you, is correct — and I believe it has alwaj^s been so — if the decencies of controversy are observed, even the fundamentals of religion may be attacked without a person being guilty of blasphemous libel. There are many great and grave writers who have attacked the foundations of Christianity. Mr. Mill un- doubtedly did so ; some great writers now alive have done so too ; but no one can read their writings without seeing a difference between them and the incriminated publication, which I am obliged to say is a difference, not of degree, but of kind. There is a grave, an earnest, a reverent, I am almost tempted to say a religious tone in the very attacks on Christianity itself, which shows that what is aimed at is not insult to the opinions of the majority of Christians, but a real, quiet, honest pursuit of truth. If the truth at which these writers have arrived is not the truth we have been taught, and which, if we had not been taught it, we might have discovered, yet because these conclusions differ from ours, they are not to be exposed to a criminal indictment. With regard to these persons, therefore, I should say they are within the protection of the law, as I under- stand it." It is no new law that the Lord Chief Justice has laid down. Pre- cisely the same view was held by his father, Mr. Justice Coleridge, and stated to the jury in the case of R. v. Pooley, tried at Bodmin Summer Assizes in 1857. (See Sir James Stephen's Digest of the (,420) IN THE NINETEENTH CENTURY. 349 Criminal Law, p. 97, n.) Mr. Justice Erskine, in sentencing Adams at Gloucester in 1842, for selling No. 2.5 of the Oracle <>/ Reason, said : — " By the law of this country, every man has a right to express his*[*460] sentiments in decent language." And in summing up in the case of li. v. Holyoake, the same Learned judge told the jury : — "If you are convinced that he uttered the words with levity, for the purpose of treating with contempt the majesty of the Almighty God, he is guilty of the offence. If you think he made use of these words in the heat of argument without any such intent, you will give him the benefit of the doubt." Mr. Justice Best gave a similar direction to the jury in the ease of Ji. v. Mary CarliU (1819) ; see State Trials (New Scries), Vol. I. Lord Denman, ('. .!., in 3Io.ro/rs case (2 Townsend's Modern State Trials, at p. 38«), expressly directed the attention of the jury to the fact that "the purpose of the passage cited from 'Queen Mab ' was, he thought, to cast reproach and insult upon what, in Christian minds, were the peculiar objects of veneration," and left to the jury these questions: — " Were the lines indicted calculated to shock the feelings of any Christian reader? Were their points of offence explained, or was their virus neutralized by any remarks in the margin, by any note of explanation or apology? If not, they were libels on God, and indictable." (June 23rd, *1 841.) And there is a long string of decisions in Chancery, bearing on the subject, which strongly support the opinion expressed by Lord Cole- ridge. In equity no trust will be enforced, no legacy will be held valid, the object of which is to promote an illegal or immoral act. Hence, if the doctrines advocated by a particular sect were blasphe- mous, a legacy or trust in favour of that sect would be set aside. It follows that where we find a legacy or trust for the dissemination of any particular doctrines upheld after argument in the Court of Chancery, those doctrines cannot be illegal or immoral and certainly are not blasphemous. It would be absurd to contend that one Divi- sion of the High Court of Justice will punish as a crime teaching which another branch of the same Court will encourage and enforce. Or, to quote the words of Lord Mansfield in Eoans'' case, already cited : " Nothing can be plainer than that the law protects nothing in that very respect, in which it is at the same time in the eye of the law a crime. (16 Parliamentary History, p. 320.) Now, Lord Raymond would certainly have held, that to deny the Deity of Christ was " to strike at the very roots of Christianity." Yet bequests and trusts in favour of Unitarianism are always enforced in Chancery. So much of the Toleration Act as excepted persons denying the Trinity from its benefits, and so much of the Blasphemy Act* of William III. as related to persons who "deny any one of the Three Persons in the Holy Trinity to be God," were repealed in 1813 by the 53 Geo. III. c. 160. Lord Eldon, in 1817, pointed out that [*461] this repeal only left the common law exactly as it was before the 9 & 10 Will. III. c. 32, was passed, and deliberately abstained from expressing any opinion as to whether the publication of Uni- tarian opinions was or was not an offence at common law. (Att.- Gen. v. Pearson (1817), 3 Mer. 405, 407.) At the same time, the (421) 350 BLASPHEMY Lord Chancellor expressly laid down the principle at p. 399 : — " It is quite certain that I ought not to execute a trust, the object of which is illegal." But all doubt has since been set at rest. In the case of Lady Iletvley's Charities {Shore v. Wilson, 9 Clark & Fin. 355) in the House of Lords in 1842 the question was put to the judges whether ministers and preachers of Unitarian belief and doctrine were, in the then state of the law, incapable of partaking of religious charities (p. 499); and they all (Mr. Justice Maule, Mr. Justice Erskine, Mr. Justice Coleridge, Mr. Justice Williams, Baron Gurney, Baron Parke, and Lord Chief Justice Tindal) answered this question in the negative. Mr. Justice Maule said (p. 509) : — " There is no statute now in force prohibiting the profession or preaching of Unitarian doctrines, and I have not found any author- ity to show that it is prohibited at common law." Mr. Justice Erskine said (p. 524) : — "Although the repeal by the statute 53 Geo. III. c. 160, of the incapacities and penalties imposed by the earlier statutes has not made any difference as to the truth or error of their tenets, and cannot, in my opinion, reflect back any light upon Lady Hewley's intentions in 1704, it has removed the only obstacle that could have intercepted her bounty if they had been originally objects of it. It is indeed still blasphemy punishable at common law scoffingly or irreverently to ridicule or impugn the doctrines of the Christian faith, and no one would be allowed to give or claim any pecuniary encouragement for such a purpose ; yet any man may, without subjecting himself to any penal conse- quences, soberly and reverently examine and question the truth of those doctrines which have been assumed as essential to it. And I am not aware of any impediment to the application of any chari- table fund for the encouragement of such inquiries." Mr. Justice Coleridge said (p. 539), that (in order to arrive at the same con- clusion) it was " not necessary to break in upon any of those dicta by which Christianity has been declared parcel of the common law, nor to extend the operation of the different Toleration Acts beyond the literal meaning of their language. But Unitarians profess to be Christians as much, and we doubt not as sincerely, as Trini- tarians ; and I apprehend that there is nothing unlawful at common law in reverently denying doctrines parcel of Christianity, however fundamental. It would be difficult to draw a line in such matters according to perfect orthodoxy, [*462] or to define how far one might depart from it in believing or teaching without offending the law. The only safe and, as it seems to me, practical rule, is that which I have pointed at, and which depends on the sobriety and reverence and seriousness with which the teaching or believing, however erroneous, are maintained." Baron Parke (at p. 565) agreed " that the preaching of doctrines called Unitarian is not on that account illegal at common law, and all the statutory penalties have been repealed." Chief Justice Tindal said (at p. 578) : — "I consider that since the statute 53 Geo. III. c. 160, all distinction between Unitarians and other Protestant Dissenters as to this pur- pose is by law taken aAvay." These opinions are, of course, of the highest authority, and have (422) OF THE NINETEENTH CENTURY. 351 been treated as settling the law in all subsequent cases in which they have been cited. Thus in 1846 in Shrewsbury v. Hornby (5 Hare's Reports, 406), a bequest to the treasurer of the Unitarian Association to assist Unitarian congregations and maintain a Uni- tarian missionary was upheld. In Be Barnett (29 L. J. ('!). 871), a legacy to the minister of Cross Street Chapel, Manchester, to be applied " towards the support of the Unitarians," was also upheld. In Scotland, Lord Jeffrey, in an eloquent judgment, gave a similar decision. {General Assembly of Baptist Churches v. Taylor, 3 Dunlop & Bell, 2nd Series, Cases in the Court of Session, p. 1030.) It was in aecordance with these judgments that it was held in February, 1874, in a Scotch Court that the Rev. Page Hopps's Life of Jesus, a Unitarian book written in a reverent spirit, eonld not be pirated with impunity by an orthodox missionary, who sought to justify his piracy by the plea that it was a blasphemous publica- tion and' therefore incapable of copyright. (See Copinger on Copyright, 2nd edition, p. 91.) It cannot therefore be maintained that Unitarianism is, or ever was, blasphemous at common law, and it follows that the dicta in Woolstoii's case are unreliable, and can- not be regarded in the present day as good law without considerable qualification. And see the recital in the Dissenters' Chapels Act, 7 & 8 Vict. c. 45. Again, trusts and legacies to promote the spread of the Jewish religion clearly " strike at the very root of Christianity ; " yet they are always enforced in our law courts. Formerly, no doubt, it was different' In 1754 Lord Hardwicke, in the case of Da Costa v. De Pas (Ambler, 228 ; 2 Swanston, 487, n.), decided on the express authority of B. v. Taylor and B. v. Woolsto?i, that a bequest of 1,200/. to found a "Jesubaor assembly for reading the law and instructing people in our holy religion," was void, as being in " con- tradiction to the Christian religion, which is part of the law of the land." But [*463] this is not law now. By the statute 9 & 10 Vict. c. 59, Jews are now placed on the same footing as Protes- tant Dissenters, and all bequests to promote the propagation of Judaism are now valid. And, indeed, trusts and legacies in favour of Jewish synagogues were valid before this statute, a distinction being taken between an act of worship and the inculcation of anti- Christian doctrine. (Per Abbott, J., in Lazarus v. Simmonds (1818), 3 Mer. 393, n.) There is only one recent equity case in which either the letter or the spirit of Wo olst 'on's case has been followed, and that is Briggs v. Hartley (1850), 19 L. J. Ch. 416. There a testator left a legacy for the " best essay on the subject of natural theology, treating it as a science, and demonstrating the truth, harmony and infallibility of the evidence on which it is founded, and the perfect accordance of such evidence with reason ; also demonstrating the adequacy and sufficiency of natural theology when so treated and taught as a science to constitute a true, perfect, and philosophical system of universal religion (analogous to other universal systems of science, such as astronomy, &c), founded on immutable facts and the works of creation, and beautifully addressed to man's reason and nature, (423) 352 BLASPHEMOUS WORDS. and tending, as other sciences do, but in a higher degree, to improve and elevate his nature, and to render him a wise, happy, and exalted being." And this was the judgment of Vice-Chancellor Shadwell: — " I cannot conceive that the bequest in the testator's will is at all consistent with Christianity, and therefore it must fail." The editors of Jarman on Wills, 4th edition, p. 210, say " this case would probably not be followed ; no cases were cited in the argument at all." This decision stands alone. In Thornton v. Howe (1862), 31 Beav. 14, a trust for "printing, publishing, and propagating the sacred writings of the late Joanna Southcote " was held good by Romilly, M. R., and in Pare v. Clegg (1861), 29 Beav. 589, the learned judge held that there was nothing illegal or immoral in a society whose chief object was to propagate the visionary doctrines of the late Robert Owen. It must, of course, be admitted that the law laid down by Lord Coleridge in Ii. v. Ramsey and Foote cannot be reconciled with every one of the earlier decisions. It is not to my mind inconsistent with P. v. Taylor, but it is certainly opposed to the dicta, if not to the decision, in Ii. v. 'Woolston. Was then Lord Coleridge bound by these dicta? I think not. It is in no way the duty of a judge to accept all the dicta of his predecessors without regard to the cir- cumstances in which they were uttered and apply them literally in a different age and in other circumstances. Still less is this the duty [*464] of a judge when those dicta are avowedly based on considerations of public policy which are now admitted to be er- roneous. Again, it must be admitted that Lord Coleridge's view of the law is entirely opposed to both the dicta and the decision in the civil case, Cowan v. Milbourn, ante, p. 455. And since the summing-up was delivered his view has not been universally ac- cepted by the Bench. Huddleston, B., w r as certainly disposed to dissent from it in Pankhurst v. 27wmpso?i, 3 Times L. R. 199 ; but the case was settled, so that it was unnecessary to deliver any judgment. And see Pankhurst v. Hamilton, 3 Times L. R. 500. And Mr. Justice Stephen, in his " History of the Criminal Law of England" (vol. ii. p. 474), undoubtedly inclines to the view that " the true legal doctrine upon the subject is that blasphemy con- sists in the character of the matter published, and not in the manner in which it is stated ; " though he admits that " there is no doubt some authority in favour of a different view of the law." But in a former work, " The Digest of Criminal Law " (p. 97), Mr. Justice Stephen placed his present definition of the law and that given by Lord Coleridge in parallel columns as equally good law, adding in a note, " There is authority for each of these views ; most of the cases are old, and I do not think that, in fact, any one has been convicted of blasphemy in modern times for a mere decent expres- sion of disbelief in Christianity." Those who wish to pursue this inquiry further are referred to an article by Mr. Justice Stephen in the " Fortnightly Review " for March, 1884, and to a pamphlet by Mr. Aspland, Q.C. (Stevens and Haynes, 188 t), in which the views expressed in that article are candidly examined. In conclusion I may say that I have stated the (424) STATUTES. 353 law laid down in Shore v. Wilson and R. v. Ramsey arid Foote at the beginning of this chapter as the existing law of blasphemy, not only because it appears to me to be " the better opinion " in point of law, "but also because it, is, I am sure, the only law on the subject that it is possible to enforce in the present day, the only law which is at all consonant with our modern ideas of universal toleration and religious equality. In aid of the common law, many statutes have at different times been passed to punish particular species of blasphemy. Of these the following appear to be still unrepealed : — "Whatsoever person or persons shall deprave, despise, [*465] or contemn the most blessed Sacrament in contempt thereof by any contemptuous words or by any words of depraving, despising, or reviling, or what person or persons shall advisedly in any other wise contemn, despise, or revile the said most blessed Sacrament, shall suffer imprisonment of his or their bodies and make fine and ran- dom at the king's will and pleasure." (1 Edw. VI. c. 1, s. 1.) " Any vicar or other minister whatsoever that shall preach, declare, or speak anything in the derogation or depraving of the Book of Common Prayer, or anything therein contained, or of any part thereof," shall on conviction for the first offence suffer forfeit- ure of one year's profit of benefices and six months' imprisonment, and for the second offence, one year's imprisonment and deprivation, and for the third offence, deprivation and imprisonment for life : or, if not beneficed, for the first offence imprisonment for one year, and for the second offence imprisonment for life. 2 & 3 Edw. VI. c. 1., s. 2 ; 1 Eliz. c. 2, s. 2.) Any person whatsoever, lay or clerical, who " shall in any inter- ludes, plays, songs, rhymes, or by other open words, declare or speak anything in the derogation, depraving, or despising of the same book, or of anything therein contained, or any part thereof," shall for the first offence forfeit one hundred marks, for the second offence four hundred marks, and for the third offence shall forfeit all his goods and chattels to the Queen and be imprisoned for life. (2 & 3 Edw. VI. c. 1, s. 3 ; and 1 Eliz. c. 2, s. 3.) These provisions are applied to our present Book of Common Prayer by the 14 Car. II. c. 4, s. 1. Every "person ecclesiastical, who shall persist in maintaining or affirming any doctrine directly contrary or repugnant to any of the Articles" agreed on in the Convocation holden at London in 1562, shall be deprived of his living. (13 Eliz. c. 12, s. 2.) [*466] The statute 3 Jac. I. c. 21, as to players, was repealed in 1843 by the 6 & 7 Vict. c. 68, s. 1. " If any person, having been educated in, or at any time having made profession of, the Christian religion within this realm, shall by writing, printing, teaching, or advised speaking, assert or main- tain that there are more Gods than one, or shall deny the Christian religion to be true, or the Holy Scriptures of the Old and New Tes- tament to be of divine authority," he shall, on conviction by the oath of two or more credible witnesses, be deprived of all offices* 23 lib. & slan. (425) 354 BLASPHEMOUS WORDS. civil, ecclesiastical, and military, unless he renounce his errors within four months from the date of his conviction ; and for a second offence he shall he declared unahlc to sue in any court of law or equity, to he a guardian, an executor or administrator, to take any legacy, or to hold any office, and shall also suffer imprisonment for three years. But information must be given on oath to a magis- trate within four days after such words were spoken, and the pros- ecution must be within three months after such information. (9 Will. III. c. 35 [c. 32 in the Statutes at Large], as amended by 53 Geo. III. c. 160.) I bit this statute does not affect or alter the common law (/?. v. Carlile, 3 B. & Aid. 161 ; JR. v. Williams, 26 Howell's St. Tr. 656) ; nor would its repeal. {Ii. v. Waddington, 1 B. & C. 26 ; Att.-Gen. v. Pearson, 3 Mer. at pp. 399, 405, 407.) This Act appears to be directed rather against apostasy than blasphemy. So far as I am aware, there has never been a single prosecution under it, partly, perhaps, from the difficulty there would be in proving that the person accused had been educated in, or made profession of, the Christian religion ; partly, perhaps, because the punishment for a first offence is so slight. "Advised speaking" probably means words spoken deliberately, as opposed to " a casual expression dropped inadvertently." (See Under v. Heath, 15 Moore, P.'C. C. 80 ; Brodrick & Fremantle, at p. 234.) By the Burial Laws Amendment Act, 1880 (43 & 44 [*467] Vict. c. 41, s. 7, any person who shall at any burial under the Act, " under colour of any religious service or otherwise, in any church- yard or graveyard, wilfully endeavour to bring into contempt or obloquy the Christian religion, or the belief or worship of any church or denomination of Christians, or the members or any minister of any such church or denomination, or any other person, shall be guilty of a misdemeanoi'." Such, then, is the existing law as to blasphemy. It is not, I think, so harsh and illiberal as some have imagined. If Lord Cole- ridge and the judges in Shore v. Wilson are right, it does not place any barrier in the way of the freest inquiry or of the largest intel- lectual or spiritual progress. It permits the frankest avowal and the warmest advocacy of all opinions, however hei-etical, which the writer or speaker sincerely entertains. It only interferes where our religious feelings are insulted and outraged by wanton and unnecessary profanity. I venture however to add some observations on the question, much discussed of late, whether the existing law should be amended, and, if so, in what direction and to what extent. In the first place, every one will agree that the present difference of opinion among our judges as to what precisely is the law on the point should at once be set at rest. Probably most will also agree that all the statutes just recited (except the Burial Acts Amendment Act) should be repealed forthwith. These objects will be attained (426) AMENDMENT OF TUE LAW. 355 when the excellent Bill brought in by Mr. Courtney Kenny becomes law. The text will be found in Appendix C, post, p. 705. It will be observed that the concluding proviso is moulded on Article 298 of the Indian Penal Code, which runs as follows : — "Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any words, or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in thesightof that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with tine or with both." But there is another Hill, which, though sadly neglected, is still, I suppose, in some form or other before Parliament. I refer to the Criminal Code Bill, the 141st section of which is as follows : — " Every one shall be guilty of an indictable offence, and shall be liable upon conviction thereof to one year's imprisonment, who publishes any blasphemous libel. [* 468] It shall be a question of fact whether any particular published matter is or is not a blasphemous libel : Provided that no one shall be liable to be convicted upon any indictment for a blasphemous libel only for expressing in good faith and in decent language, or attempting to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religious subject." The framers of the Code apparently intend to abolish the crime of oral blasphemy, as the section is confined to published libels, thus exempting all spoken lectures and addresses, however offensive, from the scope of the criminal law. I doubt if there is any sufficient reason for this change. The subsequent proviso should of course be extended to protect all words used in serious discussion, and intended to make known and to recommend opinions which the speaker conscientiously entertains. But if a lecturer deliberately chooses to shock his audience by using profane language when it is not necessary for purposes of serious discussion, or for the advocacy of opinions which he conscientiously entertains, then I do not see that he deserves protection. However, the proposed alteration is but a slight one, as only one man, so far as I am aware, had been convicted of oral blasphemy since 1676, and that was George Jacob Holyoake in 1842. It has been also objected to this clause in the Criminal Code Bill, that it gives no definition of a " blasphemous libel." It will be observed, however, that an express proviso has been added to set at rest for ever the doubt felt by Mr. Justice Stephen, and I think that this proviso, explaining what is not blasphemy, is to some extent a definition. As to the word " libel," it is practically impossible to define it, and it is undesirable therefore to make the attempt. A jury generally has no difficulty in deciding whether a given publication is or is not a libel ; but the malice of mankind takes such various forms that any definition, however carefully worded (unless it were confined to vague but safe generalities), would be apt to exclude some cases which deserve punishment, while it included others which should have passed uncondemned. (427) 356 BLASPHEMOUS WORDS. This brings us to a further objection. The Criminal Code Bill will, it is said, " virtually leave the whole question to the jury," whereas it is better that " sueh outrages and insults to religious feelings as really merit punishment should be dealt with summarily by a magistrate, that procedure being preferable to the preliminaries and prolonged publicity of a jury trial, which at best serves to advertise rather than suppress what is truly obnoxious." But this objection will not, I think, commend itself to those best acquainted with our county and borough magistrates. It is contrary to all the [*469j traditions of our law. Over and over again it has been laid down that " libel or no libel is pre-eminently a question for a jury." "The jury," says Mr. Justice (jiow Lord) Fitzgerald, in Jl. v. Sullivan, 11 Cox, C. C. 50, "'are true guardians of the liberty of the press." No doubt it may sometimes be a work of nicety to draw the line between liberty and licence, to distinguish the honest advocacy of heterodox opinions from malicious and wanton profanity. But, as the Lord Chief Justice remarks, the difference is one, not of degree but of kind. In every action for defamation where "privilege "is pleaded, or a question of " bond fide comment " arises, the jury has a precisely similar duty to perform, and, as a rule, performs that duty admirably. There can be no doubt but that questions such as these are best left to the common sense of an ordinary British jury. Proceedings before justices, moreover, attain in the present day as much publicity as trials by jury ; I should be sorry if it were other- wise. But there are some who are satisfied neither with the proposals contained in the English Criminal Code Bill, nor with the provisions of Mr. Courtney Kenny's Bill for the abolition of prosecutions against laymen for the expression of opinion on matters of religion. They make a third suggestion, and that is to abolish the law relating to blasphemy altogether. They maintain that prosecutions for blasphemy do more harm than good ; that they create a false sym- pathy with the offenders, and bring Christianity itself into hatred and contempt ; that it is impossible to protect the religious feelings of all classes from insult and outrage : and that the true Christian would punish those who thus offended with contempt and scorn; but not by criminal proceedings, which only serve to advertise and bring into prominence the books condemned. I feel there is much force in this argument. But at the same time I mistrust all propositions to abolish anything entirely. It is so easy. It saves all the trouble of sifting out what is good from what is bad. There is generally something worth preserving in all our English institutions, though it maybe thickly overlaid with an accumulation of antiquated abuses. Is there nothing good, then, in our law as to Ilasphemy ? Is it a good or an evil thing that men should be re- strained from exhibiting in the public streets and in shop windows blasphemous pictures of the life of Christ, and other offensive cari- catures such as appeared in the illustrated Christmas number of the Freethinker for 1882 ? Why is it more unchristian to prosecute those who engraved and published these pictures, than to prosecute a man for perjury or for an assault ? Such a caricature is no argu- (428) AMENDMENT OF THE LAW. 357 [*470] raent; it is simply a gratuitous insult to the religious feelings of the immense majority of us. It did no one any good. It cer- tainly did harm to thousands of young people, who gazed at it when exhibited in shop-windows in the public Streets, whilst it must have pained and wounded ten thousand more. Yet if the whole of our law against blasphemy were abolished, there would be nothing to prevent or prohibit such an exhibition. Our religious emotions surely demand from the law as much pro- tection as our moral sense. It appears to me thai there must and ought to be some law in force which will restrain the unnecessary exhibition of gross and offensive caricatures of holy things, and will prohibit outrages upon our best and highest feelings. What good can such publications do ? Do they in any way advance the cause of truth ? Is any one the wiser, or the better, or the happier, for having seen or read them ? I trust I yield to no one in my desire for the freest and fullest religious liberty. I would abolish every obstacle to the honest search after truth. Let light be thrown on every question ; let all matters, however sacred, be canvassed in the unfettered freedom of genuine and earnest discussion; let every man hold and teach whatever religious opinions he may conscien- tiously adopt. But the amplest measure of religious liberty is wholly compatible with, nay, it conduces to promote, a spirit of profound reverence for sacred things. Whatever tends to weaken or diminish this spirit is an injury to the community. And I hold, therefore, that it is the duty of ou/legislators, while, on the one hand, they protect and encourage all serious and reverent controversy on religious matters, yet, on the other hand, to make adequate provision for the prevention of blasphemous libels which give wanton and unnec- essary offence to the highest and noblest instincts of our nature. C429) CHAPTER XVII. t* 4 "l OBSCENE WORDS. It is a misdemeanour punishable by indictment and by information to publish obscene and immoral books and pictures ; for such an act is destructive of the public morality and welfare, though it may not reflect on any particular person, and as such it is punishable at common law (It v. Curl, 2 Strange, 788 ; 1 Barnard. 29, ante, p. 454). The test of obscenity is this : — " Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." (Per Cockburn, C. J., in R. v. HlckUn, L. R. 3 Q. B. 371 ; 37 L. J. M. C. 89 ; 16 W. R. 801 ; 18 L. T. 395 ; 11 Cox, C. C. 19.) Similarly it is a crime to speak vicious and immoral words, pro- vided they be uttered before a large assembly, so as to affect the mass of society ; for else there is no detriment to the general public. Obscene words and libels are apparently within the jurisdiction of Courts of Quarter Sessions ; not being excepted by the 5 & 6 Vict. c. 38. The punishment may be either fine or imprisonment for a term of any length, and either with or without hard labour. (14 & 15 Vict. c. 100, s. 29.) Illustrations. Wilkes was fined £500 and imprisoned for a year for printing and publishing " An Essay on Woman." R v. John Wilkes, 4 Burr. 2527 ; 2 Wils. 151 ; Dig. L. L. 69. r*4721 Actors have been prosecuted for performing obscene plays. Tremayne's Entries, 209, 213, 214, 215 ; Str. 790. The obscene words must be set out in the indictment verbatim. BracUaugh & Besant v. The Queen (C. A.) 3 Q. B. D. 607 ; 48 L. J. (M. C) 5 ; 26 W. R. 410 ; 38 L. T. 118 ; 14 Cox, C. C. 68- An information was granted against the printer of a newspaper called " The Daily Advertiser, Oracle and True Briton," for publishing an advertisement by a young married woman offering to become anybody's mistress on certain pecuniary terms. R. v. Stuart, 3 Chit. Crim. L. 887. Where an officer of the Society for the Suppression of Vice purposely went to the prisoner's shop and asked to see some indecent prints, and was shown several by the prisoner in a back room, of which he bought two in order to found a prosecution thereon, this was held a sufficient publication to sustain the charge. R. v. Carlile, 1 Cox, C. C. 229. " Obtaining and procuring "obscene works for the purpose of utter- ing and selling them is a misdemeanour indictable at common law ; C430) OBSCENE WORDS. -'559 for it is an overt act taken in pursuance of an unlawful intention : but merely "preserving and keeping them in one's possession" for the same purpose is not indictable ; for "there is no act shown to be done which can be considered as the first step in the prosecution of a misdemeanour." t Per Lord Campbell, C. J., in JDvgdale v. Beg., Dears. C. C. 64 ; 1 E. & B. 425 ; 22 L. J. M. ( !. 50 ; 17 Jur. 546 ; and per Park, J., in B. v. Bosenstein, 2 ('. & P. 414.) By the 20 & 21 Vict. c. 83, if any one reasonably believes that any obscene books, or pictures, arc kept in any place for the pur- pose of being sold or exhibited for gain, he may make a complaint on oath before the police magistrate, stipendiary magistrate, or any two justices, having jurisdiction over such place. The magistrate or justices must be satisfied : — (i.) That such belief is well founded : and for that purpose the complainant must also state on oath that at least one such book or picture has in fact been sold or exhibited for gain in such place. (ii.) That such book or picture is so obscene that its publication would be a misdemeanour. [*473] (iii.) That such publication would be a misdemeanour prope. co be prosecuted as such. Thereupon the magistrate or justice issues a special warrant authorizing their officer to search for and seize all such books and pictures, and bring them into Court ; and then a summons is issued calling upon the occupier of the place to appear and show cause why such books and pictures should not be destroyed. Either the owner, or any other person claiming to be the owner, of such books and pictures may appear : but if no one appears, or if in spite of appearance the justices are still satisfied that the books and pictures, or any of them, are of such a character that their publication would be a misdemeanour proper to be prosecuted, they must order them to be destroyed ; if not so satisfied, they must order them to be restored to the occupier of the place in which they were seized. The order for the destruction of such books must state, not only that the magistrate is satisfied that the books are obscene, but also that he is satisfied that the publication of them would be a misde- meanour, and proper to be prosecuted as such : else such order will be bad on the face of it, as not showing that the magistrate had jurisdiction to make it, and a certiorari will be granted, in spite of the 2 & 3 Vict. c. 71, s. 49, to bring it up and quash it. (Ex Parte Bradlaugh, 3 Q. B. D. 509 ; 47 L. J. M. C. 105 ; 26 W. R. 758 ; 38 L. T. 680.) Any person aggrieved by the determination of the justices may appeal to Quarter Sessions by giving notice in writing of such appeal, and of the grounds thereof, and entering into a recognizance within seven days after such determination. Hence the books and pictures ordered to be destroyed will only be impounded during such seven days ; on the eighth day, if no notice of appeal be given, they will be destroyed. If the appeal be dismissed, or not prose- cuted, the Court of Quarter Sessions may order the books and pictures to destroyed. (See the Act in extenso in Appendix D., post, p. 722.) The* death of the [*4V4] complainant after the issuing (431) 300 OBSCENE WORDS. of the summons will not cause the proceedings to lapse. (H. v. Truelove, 5 Q. B. D. 336 ; 49 L. J. M. C. 57*; 28 W. R. 413 ; 42 L. T. 250 ; 14 Cox, C. C. 480.) If the work be in itself obscene, its publication is an indictable misdemeanour, and the work may be seized under this Act, how- ever innocent may be the motive of the publisher. (11. v. fficklin, L. R. 3 Q. B. 371 ; 37 L. J. M. C. 89 ; 10 W. R. 801 ; 18 L. T. 398 ; 11 Cox, C C. 19.) If any point of law arises under this Act, the magistrates or justices may state a case for the opinion of a Superior Court, under the 20 & 21 Vict. c. 43, irrespective of the power of appeal given by sect. 4. That the libel is an accurate report of a judicial pro- ceeding is no defence, if it contain matter of an obscene and demoralizing character. (Steele v. Brannan, L. R. 7 C. P. 201 ; 41 L. J. M. CM ; 20 W. R. 007 ,• 20 L. T. 509.) Any one who openly exposes or exhibits any indecent exhibition or obscene prints or pictures in any street, road, public place or highway, or in any window or. other part of any house situate in any street, road, public place or highway, shall be deemed a rogue and vagabond, and punished on summary conviction. (5 Geo. IV. c. 83, s. 4, as explained by the 1 & 2 Vict. c. 38, s. 2. See post, pp. 713, 714.) The 3 Geo. IV. c. 40, s. 3, is repealed. By the 33 & 34 Vict. c. 79, s. 20, the postmaster-general may prevent the delivery by post of any obscene or indecent prints, photographs, or books. Illustrations. The Protestant Electoral Union published a book, called " The Confessional Unmasked," intended to expose the abuses of the Roman Catholic discipline, and to promote the spread of the Protestant religion. But however praise- worthy such a motive may be thought, many passages in the book were neces- sarily obscene, and it was seized and condemned as an obscene libel. It. v. Hicklin, L. R. 3 Q. B. 360 ; 37 L. J. M. C. 89 ; 16 W. R. 801 ; 18 L. T. 395 ; 11 Cox, C. C. 19. 1*475] The Protestant Electoral Union thereupon issued an expurgated edition of " The Confessional Unmasked," with some new matter. For selling this George Mackey was tried at the Winchester Quarter Sessions on October 19th, 1870, when the jury, being unable to agree as to the obscenity of the book, were discharged without giving any verdict. The Union thereupon published " A Report of the Trial of George Mackey," in which they set out the full text of the second edition of " The Confessional Unmasked ; " although it had not been read in open Court, but only taken as read, and certain passages in it referred to. A police magistrate thereupon ordered all copies of this " Report of the Trial of George Mackey " to be seized and destroyed as obscene books. Held, that this decision was correct. Steele v. Brannan, L. R. 7 C. P. 261 ; 47 L. J. M. C. 85 ; 20 W. R. 607 ; 20 L. T. 509. (432) l*4?6i CHAPTER XVIII. SEDITIOUS WORDS. Seditious words may be defined generally in the words GO Geo. III. & 1 Geo. IV. c. 8, s. 1, as any words which tend "to bring into hatred or contempt the person of his Majesty, his heirs or successors, or the Regent, or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or to excite his Majesty's subjects to attempt the alteration of any matter in Church or State as by law established, otherwise than by lawful means." Seditious words may in some special cases amount to Treason or to Treason-felony. This chapter will, therefore, be divided into I. — Treasonable Words. (i.) Words merely spoken. (ii.) Words written or printed but not published, (iii.) Words written or printed and published. II. — Seditious Words. (i.) Words defamatory of the Sovereign himself, (ii.) Words defamatory of the King's Ministers and Government, (iii.) Words defamatory of the Constitution and of our Laws generally. [*4V7] (iv.) Words defamatory of either House of Parliament, or of the members thereof, (v.) Words defamatory of Courts of Justice, and of the Judges thereof. (a) Superior Courts. (b) Inferior Courts. I. — Treason and Treason-Felony. (i.) Words merely spoken against the king or his ministers cannot amount to treason. It was resolved in Hugh Pine's Case, Cro. Car. 117 (overruling several arbitrary decisions of earlier date), "that, unless it were by some particular statute, no words will be treason." * * The story so frequently repeated that in the reign of Edward IV., Thomas Burdett was convicted of high treason for saying that he wished the horns of his stag in the belly of him who had advised the* king to shoot it (though it is still to be found in Blackstone, vol. iv. c. 6), has "been proved by Hallam to be mythical. The charge against Burdett was of a much more serious nature ; and these idle words of his are not anywhere alluded to in the indictment against him. (" Middle Ages," c. viii. ad fin.) (433j 362 TREASONABLE WORDS. There is no such statute ; but by sect. 3 of the 11 & 12 Vict. c. 12, to express, utter, and declare, by open, and advised speaking, certain traitorous compassings, imaginations, inventions, devices, or inten- tions, is made treason-felony. (See the section in Appendix. The words in italics were not in the earlier statutes to the same effect ; see ante, p. 466, as to their meaning - .) • But words accompanying any act may be given in evidence to explain the intention with which the act is done. (ii) Words written or printed, but not published, cannot be treason at common law ; and they do not constitute an overt act of treason within the meaning of the 25 Edw. III. c. 2. The decisions to the contrary in B. v. Peacham (1615), Cro. Car. 125, 2 Cobbett's St. Tr. 870, and B. v. Algernon Sidney, (1683), 9 St. Tr. 889, 893, were reversed by a private Act of Parliament in 1619. (See Hallam's [*478] Const. Hist. I. 467.) But by the 6 Anne, c. 7 (al. 41), s. 1 (passed in 1707, probably in consequence of a libel called "Mercurius Politicus ;" see 11. v. Brown, Holt, 425 ; 11 Mod. 86 ; post, p. 487), "maliciously, advisedly and directly, by writing or printing, to maintain and affirm," that Queen Anne was not the right- ful Queen, that the Pretender or any one else, except the descendants of the Electress Sophia, had any right or title to the Crown, or that Act of Parliament could not bind the Crown, and limit the descent thereof, was made high treason ; and it does not appear that any publication is requisite to complete the offence created by this statute. (iii.) But a writing which imports a compassing the king's death within the meaning of 25 Edw. III. c. 2, will amount to an overt act of treason, if it be published. Illustration. Williams, a barrister of the Middle Temple, wrote two books, " Balaam's Ass " and the " Speculum Regale," in which he predicted that King James I.* would die in the year 1621. He was indicted for high treason, convicted, and exe- cuted. Ii. v. Williams, 2 Rolle R. 88. By the 36 Geo. III. c. 7, made perpetual by the 57 Geo. III. c. 6 (as amended by 11 & 12 Vict. c. 12, s. 1), to compass, devise, or intend death or wounding, imprisonment, or bodily harm to the per- son of the Sovereign, and such compassing, device or intention to express, utter, or declare, by publishing any printing or writing, or by any overt act or deed, is made high treason, punishable with death. And by the 11 & 12 Vict. c. 12, s. 3, to compass, devise, and intend to depose the Queen, or to levy war against her by force or con- straint to compel her to change her counsels, or to intimidate either House of Parliament, or to stir up any foreigner or stranger with force to invade any of her dominions ; and such compassings, devices, or intentions, or any of them, to express, [*479] utter, or declare, by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, is made treason-fel- (434) SEDITION. 363 ony, punishable with transportation (now penal servitude) for life. (See the section in Appendix.) II. — Sedition. It is a misdemeanour, punishable by indictment or by informa- tion, to libel or to slander the Sovereign, or his administration, or the Constitution of the realm, or either House- of Parliament, or its members, or any judge or magistrate. It is also a high misprision or contempt ; and therefore the defendant may be lined to any amount, or sentenced to a term of imprisonment of any length, or both, at the discretion of the judge, as in praemunire. Formerly, banishment and the pillory could also be inflicted ; but these punish- ments are now abolished. * (00 Geo. III. & 1 Geo. IV. c. 8, ss. 1, 2, 3, 4 ; 11 Geo. IV. & 1 Will. IV. c. 73, s. 1 ; 7 Will. IV. and 1 Vict. c. 23). In cases not calling for severer punishment, the of- fender may be required to find sureties for his good behaviour. {Ex parte Seymour v. Michael Davitt, 12 L. R. Ir. 40 ; 15 Cox, C. C. 242. The offence can not be tried at Quarter Sessions. (i.) Words defamatory of the Sovereign himself It is sedition to speak or publish of the King any Avords which would be libellous and actionable per se, if printed and published of any other public character. Thus, any words will be deemed seditious, which strike at the King's private life and conduct, which impute to him any corrupt or partial views or assign bad motives for his policy, which in- sinuate that he is a tyrant, and does not take a lively interest in the welfare of his subjects, or which charge him with deliberately favouring or oppressing any individual or class of men in distinction to the rest of [*480] his subjects. (J2. v. Dr. Shebbeare, 1758, 3 T. R. 430, note). A fortiori, any words are seditious which strike at his title to the Crown, call his legitimacy in question, or are otherwise treasonable (12. v. Clerk, 1729, 1 Barnardiston, 304 ; 12. v. Knell, 1 Barnard. 305 ; J2. v. JSFutt. ib. 300.) But to assert that the King is misled by his ministers, or that he takes an erroneous view of some great question of policy is not seditious, if it be done respectfully, with decency and moderation. Illustrations. The following words appeared in the Morning Chronicle for October 2nd, 1809 : — " What a crowd of blessings rush upon one's mind that might be be- stowed upon the country in the event of a total change of system! Of all monarchs, indeed, %ince the Revolution, the successor of George the Third will have the finest opportunity of becoming nobly popular." On the trial of a criminal information against the proprietor and printer of the paper for libel Lord Ellenborough told the jury that if they considered that the words meant that the king's death would be a blessing to the nation, and that the sooner it happened the better, then they should rind the prisoners guilty ; but that if they thought the passage could fairly be construed as an expression of regret that (435) 364 SEDITIOUS WORDS. t an erroneous view had been taken of public affairs, and of a wish for some change in Abe policy and system of administration under His Majesty, they might acquit them. The jury found the prisoners, Not Guilty. Ii. v. Lambert & Perry, 2 Camp. 398 ; 3 How. St. Tr. 340. To publish falsely of the King that he is insane is a criminal libel, as it would be of any other person. Ii. v. Harvey & Chapman, 2 B. & C. 257. So is charging the King with a breach of his coronation oath. Oliver St. John's Cane (1615), Noy, 105. To insinuate that the King is a liar and a deceiver, and to assert that Ik; has treacherously betrayed the interests of his subjects and allies, and prostituted the honour of his crown, (The North Briton, No. 45), is a seditious libel. It. v. John Wilkes (1763), 4 Burr. 2527 ; 19 How. St. Tr. 1075. li. v. Kearsley ) -p.. T T ,,,, It. v. John Williams \ mg ' u u 0J> As to certain of the letters of Junius, see R. v. Woodfall, 5 Burr. 2661. 11. v. Almon, ib. 2686. Many dicta in the old text-books represent the law as stricter on this point than is stated above. According to Hawkins' " Pleas of [* 481] the Crown," i. c. 6 (8th ed. by Curwood, p. 66), and 4 Black- stone, 123, c. ix. ii. 3, it is a high misprision and contempt merely to speak contemptuously of the King, to curse him or wish him ill, to assert that he lacks wisdom, valour or steadiness, or, in short, to say anything •" which my lessen him in the esteem of his subjects, weaken his government, or raise jealousies between him and his people." But I can find no decision reported which supports so wide a proposition : and I venture to doubt if in the present day it would be deemed a crime to call the King a coward or a fool. Mere words of vulgar abuse can hardly amount to sedition. In fact, the only distinction that the law makes between words defamatory of the King, and of any other leading public character appear to be:— (i) That the former maybe criminal when only spoken ; whereas the latter must be written or printed and published ; (ii) That in the case of the former it can not be pleaded as a defence that the words are true. {R. v. Francklin, (1731), 9 St. Tr. 255 ; 17 Howell's St. Tr. 026 ; Ex parte O'Brien, 12 L. R. Ir. 29 ; 15 Cox, C. C. 180.) (ii.) Words defamatory of the lying's Ministers and Government. It is sedition to speak or publish of individual members of the Government words which would be libellous and actionable per se, if written and published of any other public character. It is also sedition to speak or publish words defamatory of the Government collectively, or of their general administration, with intent to subvert the law, to produce public disorder, or to foment or promote rebellion. " There is no sedition in censuring the servants of the Crown, or in just criticism on the administration of the law, or in seeking redress of grievances, or in the fair [* 482] discussion of all party 1 436) WORDS DEFAMATORY OF THE KINO. 365 questions." (Per Fitzgerald, J., in E. v. Sullivan, 11 Cox, C. C. 50.) Where corrupt or malignant motives arc attributed to an indi- vidual minister, the words arc clearly seditious. Where, however, no particular person is libelled, the jury must be satisfied that the author or publisher maliciously and designedly intended to subvert our laws and constitution, and to excite dissat- isfaction and disorder. There must be a criminal intent. But such an intent will, of course, be presumed, if the natural and necessary consequence of the words employed be "to excite a contempt of Her Majesty's Government, to brin!; the administration of its laws into disrepute, and thus impair their operation, to create dissaffec- tion, or to disturb the public peace and tranquillity of the realm." er se i if written and pub- lished of any other public character. , • It is also a misdemeanour to speak or publish words defamatory of either House collectively, with intent to obstruct or invalidate their proceedings, to violate their rights and privileges, to diminish their authority and dignity, or to bring them into public odium or contempt. In both cases, all such words are also a contempt and breach of privilege, punishable summarily by the House itself, with fine and imprisonment. Also bv the Statutes of Scandalum magnatum, 3 Edw. I. c. 34 ; 2 Rich. II. c. 5 ; 12 Rich. II. c. 11 ; ante, c. IV. pp. 134, 135, it is a crime to " devise, tell or publish any false news, lyes, or such other false things," of any member of the House of Lords, or of any great officer of the realm. [* 489] Illustrations. Raincr printed a scandalous libel, reflecting both on the House of Lords and on the House of Commons, called " Robin's Game, or Seven's the Main ; " he 24 lib. & slan. (441) 370 SEDITIOUS WORDS. was tried in the Court of King's Bench, fined £50, and sentenced to be impris- oned for two years and until he should pay such line. It. v. Iiainer, 2 Barnard. 293 ; Dig. L. L. 125. On three occasions the House of Commons has voted a particular publication a scandalous and seditious libel, and a breach of privi- lege, &c, and petitioned the Crown to direct the Attorney-General to prosecute the author, printers and publishers thereof. But, strange to say, on each occasion such prosecution has been unsuccessful ; the jury in each of the three cases having acquitted the prisoner. (B. v. Owen (1752), 18 Howell's St. Tr. 1203, 1228 ; R. v. Stock- dale (1789), 22 Howell's St. Tr. 238 ; B. v. Reeves (1796), Peake, Add. Ca, 84 ; 26 Howell's St. Tr. 530.) Hence the House of Com- mons now invariably deals with offenders itself. The House of Lords can inflict fine and imprisonment for any leno-th of time. In former days the pillory was sometimes added ; e. g., in the case of Thomas Morley in 1623, and of William Carr in 1667, who were sentenced to stand in the pillory for libelling indi- vidual peers. The House of Commons can inflict fine and imprisonment, and, in the case of a member, expulsion. One unfortunate member, Arthur Hall, suffered all three penalities in 1581 for publishing a book disparaging the authority of the House of Commons, and reflecting upon certain individual members — see Hallam, Const. Hist. Vol. I. c. v. — the first instance of a libel being punished by the House. But in the case of a commitment by the House of Commons, the imprisonment can only last till the close of the exist- ing session. The prisoner must be liberated on prorogation (Stock- dale v. Hansard, 9 A. & E. 114 ; GrisseVs case, Aug. 1879). It is otherwise with the House of Lords. The Speaker's warrant is a perfect answer to any writ of habeas corpus, and fully justifies the Serjeant-at-arms and his officers in arresting the offender, and protects them from any action of assault [* 490] or false imprisonment (Howard v. Gosset, 10 Q. B. 359 ; Burdett v. Colman, 14 East, 163). It will not be scanned too strictly by the courts of law, nor set aside for any defect of form (B. v. Paty, 2 Ld. Raym. 1108 ; B. v. Hobhouse (1819), 2 Chit. 210). Thus, the libel for which the prisoner was committed need not be set out in such warrant (Burdett v. Abbot, 14 East, 1 ; see 1 Moore, P. C. C. 80) ; though the libel must always be set out at full length in either an indictment (Bradhmgh and Besant v. The Queen, (C. A.) 3 Q. B. D. 607 ; 48 L. J. M. C. 5 ; 26 W. K 410 ; 38 L. T. 118), or a statement of claim (Harris v. Warre, 4 C. P. D. 125 ; 48 L. J. C. P. 310 ; 27 W. R. 461 ; 40 L. T. 429). Still less will any court of common law inquire into the propriety of the Commitment or hear it argued that the act complained of did not amount to a contempt, or that the privilege of the House alleged to have been broken does not exist (Stockdale v. Hansard, 9 A. & E 165, 195). The Queen's Bench Division cannot bail a prisoner (442) COLONIAL LEGISLATURES. 371 committed for a contempt of the House of Commons {Hon. Alex. Murray's Case, 1 Wilson, 299). The House is the best judge of its own privileges, and of what is a contempt of them. But if on the face of the warrant it plainly and expressly appears that the House is exceeding its jurisdiction, it will be the duty of the High Court to order the release of the prisoner. (9 A. & E. 169 ; Hawkins, 3 PI. Cr. II. 15, 73, p. 219 ; R. v. Evans and another, 8 Dowl. 451.') The House may commit for any contempt of one of its com- mittees, or of the members of any such committee ; instances of such committals occurred in 1832, 1858, and 1879. So in America the House of Representatives has a general power of committing for contempt, whether the offender be a member or a stranger {Anderson v. Dunn, 6 Wheat. 204). But, as with the English House of Commons, the imprisonment terminates at the adjournment or dissolution of Congress. But with subordinate legislative bodies it is different. No power of committing for contempt is inherent in them {Kielley v. Carson, 4 Moore, P. C. C. 63 ; Fenton v. Hampton, 11 Moore, P. C. C. 347, overruling dicta of Lord Denman, C. J., in Stockdale v. Hansard, 9 A. & E. 114 ; of Parke, B., in Beaumont v. Barrett, 1 Moore, P. C. C. 76) ; although they have, of course, power to preserve order dur- ing their deliberations, which involves a power to remove from the [* 491] Chamber any person obstructing their proceedings, or other- wise guilty of disorderly conduct in the presence of the House itself, and if theoffender be a member, to exclude him for a time, or even to expel him altogether. Such latter power is necessary for self- preservation ; and is quite distinct from the judicial power of sen- tencing the obstructive to a term of imprisonment as a punishment for his misconduct {Doyle v. Falconer, L. R. 1 P. C. 328 ; 36 L. J. P. C. 37; 15 W. R. 366 ; Attorney- General of New South Wales v. Macpherson, L. R. 3 P. C. 268 ; 7 Moo. P. C. (N S.) 49 ; 39 L. J. P. C. 59 ; Barton v. Taylor, 11 App. Cas. 197 ; 55 L. J. P.- C. 1 ; 55 L. T. 158). Thus the House of Assembly of New- foundland {Kielley v. Carson, 4 Moore P. C. C. 63) ; the Legisla- tive Council of Van Diemen's Land {Fenton v. Hampton, 11 Moore, P. C. C. 347) ; the House of Keys in the Isle of Man {Ex parte Brown, 5 B. & S. 280 ; 33 L. J. B. Q. 193 ; 12 W. R, 821 ; 10 L. T. 453) ; and the Legislative Assembly of the Island of Dominica {Doyle v. Falconer, L. R 1 P. C. 328 ; 36 L. J. P. C. 33 ; 15 W. R. 366), possess no inherent powers to commit for contempt. But though such a power is not inherent in any inferior legisla- ture, it may be expressly granted by statute ; thus the Legislative Assembly of Victoria possesses this privilege by virtue of the 18 & 19 Vict. c. 55, s. 35, and the Colonial Act, 20 Vict. No. 1 {Dill v. Murphy, 1 Moore, P. C. C. (N. S.) 487 ; Speaker of the Legislative Assembly of Victoria v. Glass, L. R. 3 P. C. 560 ; 40 L. J. P. C. 17 ; 24 L. T. 317). Also, it is said that such a power may be ac- quired by prescription, acquiescence and usage. {Per Lord Ellen- borough, C. J., in Burdett v. Abbot, 14 East, 137, and Cockburn, C. (443) 372 SEDITIOUS WORDS. J., in Ex parte Brown, 5 B. & S. 293.) And it is by virtue of such acquiescence and usage that the Jamaica House of Assembly has the power of committing a libeller, if indeed it lias such power at all (Beaumont v. Barrett, 1 Moore, P. C. C. 80, as explained by Parke, B., in 4 Moore, P. C. C. 89). [* 492] (v.) Words defamatory of Courts of Justice and of Individual Judges. (a) Superior Courts. It is a misdemeanour to speak or publish of any judge of a Supe- rior Court words which would be libellous and actionable }>er se, if written and published of any other public officer. It is also a misdemeanour to speak or publish words defamatory of any court of justice or of the administration of the law therein, with intent to obstruct or invalidate its proceedings, to annoy its officers, to diminish its authority and dignity, and to lower it in public esteem. Such words, whether spoken or written, are punishable on indict- ment or information, with fine or imprisonment or both. They are also in every such case a contempt of court punishable summarily by the Court itself with fine or commitment. Such words are also indictable under the Statutes of Sca?idalum magnalum (3 Edw. I. c. 34 ; 2 Rich. II. c. 5 ; 12 Rich. II. c. 11 ; ante, c. IV. pp. 134, 135), as well as at common law. It is immaterial whether the words be uttered in the presence of the Court or at a time when the Com-t is not sitting, and at a dis- tance from it ( Crawford's Case, 13 Q. B. 630 ; 18 L. J. Q. B. 225 ; 13 Jur. 955) ; nor need they necessarily refer to the judges in their official capacity. But " there is no sedition in just criticism on the administration of the law. ... A writer may freely criticise the proceedings of courts of justice and of individual judges — nay, he is invited to do so, and to do so in a free, and fair, and liberal spirit. But it must be without malignity, and not imputing corrupt or malicious mo- tives." (Per Fitzgerald, J., in B. v. Sullivan, 11 Cox, C. C. 50.) " It certainly is lawful, with decency and candour, to discuss the propriety of the verdict of a jury, or the decisions of a [* 493] judge, .... but if the extracts set out in the information contain no reasoning or discussion, but only declamation and invective, and were written, not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the administration of justice in the country," then the defendants have transgressed the law, and ought to be convicted. (Per Grose, J., in B. v. White and another, 1 Camp. 359, n.) Illustrations. To say that a judge had been bribed, or that in any particular case he had endeavoured to serve his own interests, or those of his friends or of his party, or wished to curry favour at Court, or was influenced by fear of the Government (444) SUPERIOR COURTS. 373 or of any great man, or by any other side-motive other than a simple desire to arrive at the truth and to mete out justice impartially, is a seditious libel. See R. v. Lord George Gordon, 22 Howell's St. Tr. 177. To call the Lord Chief Justice " a traitor and a perjured judge," and to allege that a recent, judgment delivered by him was treason, is a misdemeanour. Ji.'v. l/rtfe (1&62), 15 Vin. Abr. 89. Hutton, J. v. Harrison, Hutton, 131. To say that the Lord Chief Justice disgraces his high station and prevents justice being done, is a misdemeanour. R. v. Hart and White (1808), 30 How. St. Tr. 11G8, 1345 ; 10 East, 94. R. v. Wrennum (1619), Popham, 135. Butt v. Conant, 1 Brod. & Bing. 548 ; 4 Moore, 195 ; Gow, 84. Hurry sued Watson for a malicious prosecution, and recovered damages £3,000: the corporation of which Watson was a member thereupon resolved " that Mr. Watson had been actuated by motives of public justice in prosecut- ing Hurry," and voted him £2,300 towards payment of his damages The Court of King's Bench granted an information against the members of the cor- poration. R. v. Watson & others, 2 T. R. 199. [That the vote of money was an improper employment of the corporate funds is very probable ; but so far as the mere words of the resolution are concerned, 1 see no misdemeanour. They appear to me to be but a temperately worded statement that the corporation differed from the jury in their opinion of Mr. Watson's conduct.] Besides such indictable offences, many other acts and words are contempts of court. Thus it is contempt of court to insult the judge, jury or witnesses, to obstruct any officer of the Court in the execu- tion of his duty, to express contempt for the process of the Court, to calumniate the parties concerned in any cause, to prejudice the [*494] minds of the public against the suitors or others before the cause is finally heard, or in any other way to taint the source of justice or to divert or interrupt its ordinary course. (See the judg- ment of Blackburn, J., in Skipworth's Case, L. R. 9 Q. B. 232, 241.) Lord Hardwicke says, in Roach w Garvan, Re Read cO Iluggonson, 2 Atk. 469 ; 2 Dick. 794 :— " There are three different sorts of contempt. " One kind of contempt is, scandalizing the Court itself. " There may be likewise a contempt" of this Court in abusing parties who are concerned in causes here. " There may be also a contempt of this Court, in prejudicing man- kind against persons, before the cause is heard. " There cannot be anything of greater consequence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters." In all such cases a Superior Court may interfere summarily to protect itself, and fine the offender or commit him to prison proprio motu ; and this, although no indictable offence has been committed. (Per Lord Holt, C. J., in R. v. Rogers, 7 Mod. 29.) Any further or threatened publication may be restrained by injunction. (See ante, p. 337.) An application either for such an injunction or to commit for contempt must be made promptly, and it will be refused if the applicant has himself invited or commenced public discussion of the matter in the public press. (Daw v. Eley, L. R. 7 Eq. 49 ; 38 L. J. Ch. 113 ; 17 W. R. 245.) (445) 374 SEDITIOUS WORDS. Illustrations. Even the prisoner in the dock, who is always allowed great latitude, if he he defending himself, may he fined for contempt of court, if he persist in using blasphemous language and in applying offensive epithets to the presiding judge in the course of his speech to the jury. The learned judge remitted the lines at the beginning of his summing-up to the jury. R. v. Davison, 4 B. & Aid. 329. [*495] So, too, a barrister may be guilty of contempt of court, if he unnecessarily insults one of the jury in the course of his address to them. In re Pater, 5 B. & S. 299 ; 33 L. J. M. C. 142 ; 12 W. li. 823 ; 10 L. T. 376. The most innocent words, if uttered in a peculiar manner and tone, may be a contempt of court. For an insult may be conveyed either by language or by manner. Carvs Wilson's Case, 7 Q. B. 984, 1015. If a high sheriff proceeds to address the grand jury in open Court at the close of the judge's charge, and persists in so doing, though ordered by the judge to sit down and be quiet, he may be fined £500 for contempt. In re The High Sheriff of Surrey, 2 F. & F. 234, 237. To beat and kick the officer of the Court who serves a subpcena, and to compel him to eat the wax and parchment thereof, is a contempt, punishable by com- mittal. Williams v. Johns (1773), cited in the note to Elliot v. Halmarack, 1 Mer. 303. So is merely using abusive and violent language towards any person serving the process of any Court. Price v. Hutchison, L. R. 9 Eq. 534 ; 18 W. R. 204. ' B. v. Jones (1719), 1 Stra. 185. It is a contempt of court and a libel, punishable by attachment, to publish a pamphlet asserting that judges have no power to issue an attachment for libels upon themselves, and denying that reflections upon individual judges are con- tempts of court at all. R. v. Almon, Wilmot's Notes of Opinions and Judgments, p. 253. Any attempt to bribe a judge, or to influence his probable decision on a matter before him by any private communication, is a contempt of court. Martin's Case, 2 Russ. & Mylne, 674, n. Macgill's Case, 2 Fow. Ex. Ft. 404. But not every silly or impudent letter addressed to a judge about a matter which he has decided will be treated as a contempt. R. v. Faulkner, 2.Mont. & Ayr. 321, 322 ; 2 C. M. & R. 525 ; 1 Gale, 210. Nor every inaccurate report of judicial proceedings which either party may think fit to publish. Matthews v. Smith, 3 Hare, 331. Brook v. Evans, 29 L. J. Ch. 616 ; 6 Jur. N. S. 1025 ; 8 W. R. 688. Buenos Ay res Gas Co. v. Wilde, 29 W. R. 43 ; 42 L. T. 657. To preach a sermon with special reference to a pending trial is a contempt of court. Mackctt v. Heme Bay Commissioners, 24 W. R. 845 ; ante, p. 338. _ As to exhibiting models of the person murdered and the alleged murderer in the assize town during the assizes, see R. v. Gilham, 1 Moo. & Mai. 165. It is a contempt for a party to a suit to publish before the case has come on for hearing a copy of his brief, or even an abstract of his petition or statement of claim, or of the affidavits filed on either side, or any other ex parte statement [*496] tending to prepossess the minds of the public in his favour, or to calum- niate his adversary. Captain Perry's Case, cited 2 Atk. 469 ; 2 Dick. 794. Mrs. Farley's Case, Cann v. Cann, 2 Vesey, senr. 520 ; 3 Hare, 333, n. Coleman v. West Hartlepool Harbour and Railway Co., 8 W. R. 734 ; 2 L. T. 766. (446) CONTEMPT OF COURT. 375 A petition for winding up a company, containing charges of fraud against the directors, was published in extenso in a newspaper before the hearing of the petition. This was held a contempt of court, and the publishers of the paper were ordered to pay the costs of a motion to commit them. In re The Cheltenham & Swansea Waggon Co.] L. II. 8 Eo. 580 ; 38 L. J. Ch. 330 ; 17 W. R. 463 ; 20 L. T. 169. Tiehborne v. Mostyn, L. R. 7 Eq. 55, n. ; 15 W. R. 1072 ; 17 L. T. 5, And see Kiteat v. Sharp, 52 L. J. Ch. 134 ; 31 W. R. 227 ; 48 L. T. 64 ; W. N. (1882). 183. Bowden v. Russell, 46 L. J. Ch. 414 ; 36 L. T. 177 ; Weekly Notes (1877), 55. Any article in a newspaper commenting on a case still before the Court is a contempt, if it in any way tends to pervert the course of justice, though written temperately and respectfully, and in all other respects such an article as might properly and legitimately be written and published after the trial is ended. R. v. Clement, 4 B. & Aid. 218 ; 11 Price, 69. Littler v. Thompson, 2 Beav. 129. Roach v. Garvan, Re Read & Huggonson, 2 Atk. 469 ; 2 Dick. 794. Tiehborne v. Mostyn per Wood, V.-C, L. R. 7 Eq. 57, n. ; 15 W. R. 1074 ; 17 L. T. 7. Tiehborne v. Tiehborne, 39 L. J. Ch. 398 ; 18 W. R. 621 ; 22 L. T. 55. Vernon v. Vernon, 40 L. J. Ch. 118 ; 19 W. R. 404 ; 23 L. T. 697. Buenos Ayres Gas Co. v. Wilde, 29 W. R. 43 ; 42 L. T. 657. Robertson v. Laboueliere, 42 J. P. 710. The publication in a newspaper of a correct report of proceedings before a police magistrate which terminated in the committal of the prisoners is not a contempt of court, though it may tend to prejudice the mind of the public against the prisoners. But the publication in a newspaper of comments on such proceedings, and on the conduct of the prisoners, is a contempt of court, if it tends in any way to prejudice the public mind against them before the trial. R. v. Gray (ISQ5), 10 Cox, C. C. 184. R. v. 0"Dogherty (1848), 5 Cox, C. C. 348. An injunction having been granted to restrain the defendants from infringing a patent for nickel-plating, they gave notice of appeal, and published in a news- paper an advertisement inviting the trade to subscribe towards the expenses of the appeal, and also an advertisement offering a reward of £100 to anyone who could produce documentary evidence that nickel-plating was done before 1869. It was held that neither advertisement was a contempt of court. Plating Co. v. Farquharson, (C. A.) 17 Ch. D. 49 ; 50 L. J. Ch. 406 ; 29 W. R. 510 ; 44 L. T. 389 ; 45 J. P. 568 ; overruling Pool v. Saeheverel, 1 P. Wms. 675. But where a co-respondent in a suit for divorce, immediately after the service [*497] of the citation, caused advertisement. .,o be published denying the charges made in the petition, and offering a reward for information which would lead to the discovery and conviction of the authors of them, it was held that these advertisements constituted a contempt of court. Brodribb v. Brodribb & Wall, 11 P. D. 66 ; 55 L. J. P. D. & A. 47 ; 34 W. R. 580 ; 50 J. P. 407. So it is a contempt for the solicitor to a defendant to publish in a newspaper anonymous letters full of arguments in the defendant's favour, and denying the facts on which the plaintiff would rely at the trial. Daw v. Eley, L. R. 7 Eq. 49 ; 38 L. J. Ch. 113 ; 17 W. R. 245. The publisher of a newspaper was committed for printing an article which attacked the persons who had made affidavits in a suit in Chancery not yet con- cluded, imputing to them ignorance of facts and interested motives. Felkin v. Herbert, 33 L. J. Ch. 294 ; 12 W. R. 241, 332 ; 9 L. T. 635; 10 Jur. N. S. 62. See also Littler v. Thompson, 2 Beav. 129. In re William Watson, Shaw's Case (Scotch), No, 6. Still more it is a contempt of court for one committed for trial for perjury, or for any of his partisans, to address public meetings, alleging that there is a conspiracy against him, and that he will not have a fair trial. (447) 376 SEDITIOUS WORDS. Castro, Onslow r place, or to be taken into custody, and at any time before the rising of such court, by [*51l] warrant, to commit such person to gaol for any period not exceeding seven days, or to fine such person in any sum not exceeding 40s. Illustrations. In 1874 Thomas Willis claimed to vote as a freeholder ; hut the revising barrister on the meagre evidence before him held that the property in respect of which he claimed was copyhold, and disallowed the vote. Hiscousin, William Willis, who was present in court as agent for the opposite political party, knew perfectly well that it was really freehold, but held his tongue. In 1875 Thomas Willis accordingly claimed as a copyholder. Then William came forward and produced the family title-deeds and proved clearly that the land was freehold. The revising barrister was compelled again to disallow Thomas's vote: but ordered William to be turned out of the room for not having produced this evidence in 1874. Held, that such expulsion was wrongful, as William's con- duct in 1874, though possibly deserving of moral reprobation, was certainly no "interruption'' of the proceedings of the court then being held in 1875. Willis v. Maalachlan,! Ex. D. 376 •, 45 L. J. Ex. 689 ; 35 L. T. 218. To persist, in spite of repeated remonstrance, in interrupting and insulting a court of petty sessions, by shouting at the bench in the most violent and un- seemly manner, so that none of • the justices could speak a word, is a contempt for which the court may commit to prison even a solicitor practising before In re John Rea (1878), 2 L. R. Ir. 429 ; 14 Cox, C. C. 139. A material witness against a prisoner committed for trial on a charge of felony refused to be bound over to appear at the quarter sessions to give evi- dence against him, saying that she would not go to Maidstone, and nobody should make her. After fully explaining the matter and expending nearly an hour in the attempt to persuade her to go, the committing magistrate issued a warrant by virtue of which she was taken to Maidstone, and gave her evidence, and the prisoner was convicted ; without her evidence he could not have been convicted. Held, that the arrest was lawful, by necessary implication from 1 & 2 Ph. & M. c. 13. Bennett and wife v. Watson and another, 3 M. & S. 1. The term " Inferior Court " includes the Mayor's Court, London ; the Sheriff's Court, the City of London Court of Record, the Secondary's Court, the Tolzey Court of Bristol, the Salford Hundred Court, the Court of Passage, Liverpool ; all Sheriff's Courts, all County Courts, all Courts of Quarter and Petty Sessions, all Coroners, all" Revising Barristers, and in short, all temporal Courts not enumerated as superior Courts, ante, p. 502. [*512] The Ecclesiastical Courts have no power to commit for contempt at all. All that such court can do is to signify such con- tempt to the Lord Chancellor, who thereupon, under 2 & 3 Will. IV. c. 93, issues a writ cle contvmace capiendo for taking the offender into custody. {Adlam v. CoUhurst, L. R. 2 Adm. & Ecc. 30 ; 36 L. J. Ec. Ca. 14 ; Ex parte Dale, 43 L. T. 534.) But such writ will not issue if the alleged offender be a peer, a lord of Parliament, or a 1458) STATUTORY POWERS. 387 member of the House of Commons (sect. 2). Note that both Mr. Long WeUesley and Mr. Lechmere Charlton were members of Parliament, and yet both were committed to the Fleet for contempt of the Court of Chancery. (2 Russ. & Mylne, 639 ; 2 Mylne & Or. 316.) And see the remarks of Cockburn, C. J., in Onslow'' s and Whalky's Oases, L. R. 9 Q. B. 228, 229 ; 12 Cox, C. C. 369. END OP VOL I. (459) THE LAW OF LIBEL AND SLANDER THE EVIDENCE, PROCEDURE, AND PRACTICE, BOTH IN CIVIL AND CRIMINAL CASUS, AND PRECEDENTS OF PLEADINGS, WITH A CHAPTER ON THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. BY W. BLAKE ODGERS, M.A., LL.D. LATE SCHOLAR AND LAW 6TUDENT OP TRINITY HALL, CAMBRIDGE, OP THE MIDDLE TEMPLE AND THE WESTERN CIRCUIT, BARRI8TER-AT-LAW. FROM THE SECOND ENGLISH EDITION. "DEAD SCANDALS FOJiU GOOD SUBJECTS FOR DISSECTION."— Brnos. VOL II. PHILADELPHIA : THE BLACKSTONE PUBLISHING COMPANY, 1888. Entered according to the Act of Congress, in the year 1888 By THE BLACKSTONE PUBLISHING COMPANY, In the Office of the Librarian of Congress, at Washington, D. C. (2) PART II. [ * 5,3] ODGERS' LIBEL AID SLANDER. PKAOTICE, PROCEDURE, AND EVIDENCE. CHAPTER XIX. PRACTICE AND EVIDENCE IN CIVIL CASES. An action of libel or slander should not be lightly undertaken ; it is a dangerous experiment ; many a plaintiff, even though nominally successful, has bitterly regretted that he ever issued his writ. Everyone who proposes to bring an action of defamation should remember that he is about to stake his reputation on the event of a lawsuit, and to invite the public to be spectators of the issue. No step, therefore, should be taken in hot haste. . There are many matters which require careful consideration before an action be commenced. Considerations before Writ. First, is it clear that the plaintiff is the person defamed ? Libels are often couched in guarded language, so that none but the initiated can tell to whom they refer. Thus, if the libel be on " a certain vicar," no individual vicar should sue, unless by other passages in the libel he is unmistakeably identified ; otherwise he will be " putting the cap on his own head." It is not enough that one or two of the plaintiff's dearest friends feel convinced that he is the person aimed at ; he should not sue unless his acquaintances generally have reasonably arrived at the same conclusion. Next, is the charge, or any part of it, true? If so, the plaintiff, by bringing an action takes the surest method of advertising his own disgrace. When once the action is brought and a justification [* 514] pleaded, no honourable compromise can be effected ; the matter must be fought out to the bitter end ; and every detail will become matter of " town talk." It would be better, therefore, for such a plaintiff to affect an indifference which he does not feel, and treat the libel as "beneath contempt.' 1 And even if the charge itself be false, still if the plaintiff has been at all to blame in the matter, if his conduct, though not morally reprehensible, has yet been indiscreet or unbecoming, or (463) 392 PRACTICE AND EVIDENCE. such as would naturally lead people to make unkind remarks, it will be better for him not to sue. lie will have to be cross-examined in open court, and every admission wrung from him will be published in all the county papers ; the blackest motives will be imputed to him, and the worst possible construction be put upon his conduct. And although the verdict be ultimately in the plaintiff's favour, many of his acquaintances \tfill remember with pleasure to their dying day what a sorry figure he cut in the box. The plaintiff should also consider whether he has not by his own conduct brought the libel or slander on himself. (See Davis v. Duncan, L. R. 9 C. P. 390 ; 43 L. J. C. P. 185 ; 22 W. R. 575 ; 30 L. T. 464 ; ante, p. 52.) Sometimes it is a defence to an action that the plaintiff challenged or invited the defendant's attack {ante, p. 232) ; and in every case the defendant may show in mitigation of damages the provocation given by the plaintiff {ante, p. 318). A man who has commenced a newspaper controversy conies with a very bad grace to the law courts for assistance against too powerful an adversary. If both parties are to blame, the result of the trial is generally : — Damages, one farthing ; each party to pay his own costs. And wholly apart from the above considerations, is it worth while to bring an action? Is the matter sufficiently serious ? A man does not advance either his dignity or his reputation by showing himself too sensitive to calumny. People will think that he is eager for litigation, because he knows that his character cannot stand the least wear and tear. This remark applies especially to actions of slander. It is not wise to inquire too curiously what others say of us behind our backs. The slander is only heard by- few ; it will soon be forgotten ; whereas if you bring an action, it will be disseminated throughout the country, and recorded in a permanent shape. Still it may be a man's duty to take proceedings, if the charge made against him be really serious. Even, however, in cases of libel, it is better to exhaust every other method first. If the libel has appeared in a newspaper, write to the editor a calm and dignified letter in answer, avoiding all "smart writing," [* 515] and indulging in no tu quoque. This will probably bring an apology from the writer of the original letter. And a prompt apology and retractation of the charge" is always worth more to a plaintiff than any amount of damages. If, however, no apology comes, but another letter worse than the first, the plaintiff's position is improved thereby ; for defendant's per- sistence in the charge after the explanation afforded is evidence of malice, entitling the plaintiff to heavy damages. Next, before issuing a writ, the plaintiff should make sure what were the defendant's exact words. Of a libel, a copy can as a rule be easily obtained ; but with slanders it is different. What has reached the plaintiff's ears may be a highly exaggerated version of what the defendant actually said. The plaintiff is usually the last person who hears the charge against him ; and it has probably grown on each repetition ; words not actionable per se are frequently con- verted into actionable words in the intermediate process. The (464) CONSIDERATIONS BEFORE WRIT. 393 person slandered should, therefore, take a friend with him (who will make a good witness) and go and ask the alleged slanderer : — " Is it true that you have been saying this of me?" if he denies that he ever said so, as is very possible, appear at all events to believe him, and bring no action ; if he confesses that he did say so, but has since discovered he was mistaken, get him to write you a letter acknowledging his error, to show anyone if necessary, and then forgive him. If, however, he admits that he said so and reiterates the charge, then you are provided by anticipation with the best possible evidence of publication — an admission by the defendant. Lord •Denman says, in Griffiths v. Lewis, 7 Q. B. 01 ; 14 L. J. Q. B. 199 ; 9 Jur. '370, "It is never wise to bring an action for slander unless some such course has been taken." See his remarks, ante, p. 235. As soon as it is clear what is the precise charge made by the defendant, the next question will be : — Are the words actionable ? On this point the plaintiff should consult his solicitor, who should consult c. II. ante, pp. 17 — 92. If the words are not actionable without special damage, the plaintiff must wait for some damage to accrue before commencing his action. Parties. Next, it must be determined who is the right plaintiff, and who the proper defendant ; as to which see c. XIV., ante, pp. 394 — 421. Formerly the law and practice as to " parties " was of the utmost importance, misjoinder of a plaintiff being ground of nonsuit, while non-joinder of a necessary plaintiff was the subject of a plea in abatement, But now, by Order XXI. r. 20, " No plea or defence shall be [*510] pleaded in abatement, "and in Order XVI. r. 11, the general principle is laid down, that " No cause or matter shall be defeated t)y reason of the misjoinder or non-joinder of parties, and the court may in every cause or matter deal with the matter in controversy, so far as regards the rights and interests of the parties actually before it. The court or a judge may, at any stage of the proceed- ings, either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just, order that the names of any parties improperly joined, whether as plain- tiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added.'* And see rr. 1, 2 of the same Order. But such amendment will not as a rule be allowed where the party applying for it is clearly to blame, or where a hardship would be inflicted on his opponent. And even when an order is made, it will generally be only upon payment of all costs thereby occasioned. Hence this branch of the law still deserves careful consideration. The non-joinder of a defendant in an action of tort never was any ground of objection ; the present defendant cannot plead in abate- (465) 394 PRACTICE AND EVIDENCE. ment or in bar that another joint wrongdoer lias not been made a co-defendant (Mitchell v. Tarbutt and others, 5 T. R. 649 ; Ansell v. Wdterhouse, 6 M. & S. 385) ; for all persons engaged in a common wrongful ;ict are liable jointly and severally for the consequent damage. (Co. Lit. 232 a; 1 Wms. Saund. 291 f ; Sutton v. Clarke, 6 Taunt. 29.) So, too, the misjoinder of one defendant would not avail the others ; it would only entitle the defendant misjoined to a verdict in his favour. (Morrow v. Belcher and others, 4 B. & C. 704 ; Govelt v. Radnidge and others, 3 East, 62 ; JBretherton and others v. Wood, 3 B. & B. 54.) And this is con- tinued by Ord. XVI. rr. 4, 5 and 7. But the plaintiff will have to pay the costs of the defendant who proves not liable, unless such defendant has colluded with the other defendant found to be liable, or has otherwise been guilty of misconduct ; so that it is undesira- ble to join any defendant who is not liable for the publication sued on. In cases of slander where special damage is essential to the action, be careful to sue only that person whose utterance of the slander actually caused the special damage. Do not sue the originator of the falsehood, if his utterance of it has produced no direct injury to the plaintiff. In cases where a libel has been written by one man at the direction of another, it is often wise to sue the person who actually [*517] wrote the libel as well as his master or employer. For, so, although the plaintiff may fail to prove agency at the trial, he will yet be entitled to judgment against the clerk or servant. Where a libel has appeared in a newspaper, the person defamed can sue the proprietor, the editor, the printer, and the publisher, or any one or more of them. But there is no object, as a rule, in hav- ing more than one defendant, or bringing more than one action for the same libel ; (see, however, Tucker v. Tmicson, 2 Times L. R. 593 ; and Golledge v. Pike, 56 L. T. 124.) It is usual to sue only the proprietor, as his name and address can be ascertained at once at the Somerset House, Room No. 7, and the fact that he is the pro- prietor can be easily proved by the production of a certificate under sect. 15 of the Act of 1881. If the action be originally brought against the publisher only a master at chambers will subsequently, on proper terms, join the proprietor as a co-defendant. (Edward v. Lowther, 45 L. J. C. R 417 ; -_'4 W. R. 434 ; 34 L. T. 255.) The plaintiff, however, generally and naturally prefers to sue the author. Hence his solicitor frequently writes to the editor of the paper before issuing the writ demanding the writer's name and address. This information the editor will, as a rule, refuse to give. Editors generally regard it as a point of honour not to disclose the name of any contributor. In Marie v. Gather all and others, 14 L. T. 802, Martin, B., says, "When a man went to an editor to ask for the name of an anonymous correspondent, no blame attached to the editor for refusing to give the name. Indeed, an editor would almost be mad to do so. He should blame no editor for so refus- ing." The plaintiff must in such a case be content to sue the pro- prietor of the paper, who generally obtains an indemnity from the writer. And the plaintiff can not, in such action, compel the pro- (46C; PARTIES. 395 prietor to produce the original manuscript so that lie may recognize the handwriting ; at all events, not before delivery of the statement of claim. (British and foreign Contract Co. v. Wright, '-'r2 W. R. 413.) The printer of a libel, on the oilier hand, will generally disclose the name of his employer ; there is no reason why he should not ; and see the statute 39 Geo. III. c. 79, s. 29, 2>ost, p. 711. Letter before Action. In all cases, before actually issuing a writ, the plaintiff's solicitor should write to the defendant, demanding an apology and threaten- ing proceedings. Say nothing in this letter about costs. If the charge was made publicly, a public apology should be demanded, to be advertised in a newspaper. If only a few heard it, the plaintiff should be [* 518] content with a letter of apology, fully retracting the charge, which can be shown to every one who heard what the defendant said. Notice of Action. Sometimes besides the letter before action it is necessary to give a formal notice of action a month and a day before the writ is issued, e. g., where a libel is written by any one acting bond fide in the execution of any statutory duty. {Murray v. McSwiney, Ir. R. 9 C. L. 545 ; 5 & 6 Vict. c. 97, s. 4.) In such cases, a letter asking for the name of the writer's informant, and threatening proceed- ings if the name be not disclosed, will not be a sufficient notice within the statute. (Norris v. Smith, 10 A. & E. 188.) See form of such notice, Precedent No. 19, post, p. 631. Jurisdiction. An action of libel or slander can primd facie be tried by any court within whose jurisdiction the defamatory words were uttered, written, printed, or published in any way. And a letter is deemed to be published both where it is posted and where it is received and opened. (B. v. Burdett, 4 B. & Aid. 95.) But when the words are not actionable per se, there must be special damage ensuing to constitute a cause of action. In the case of an Inferior Court the whole cause of action must as a rule arise within its jurisdiction. I Gold v. Turner, L. R. 10 C. R 149 ; 23 W. R. 732 ; Allerton v. Archer, 14 Q. B. D. 1 ; 54 L. J. Q. B. 12 ; 33 W. R. 136 ; 51 L. T. 661.) Hence an Inferior Court will not have jurisdiction unless both the publication and the special damage occurred within its district, (Zittleboy v. Wright, 1 Lev. 69 ; 1 Sid. 95.) But in a Superior Court it is primd facie sufficient if either the publication or the consequent special damage occurred within its jurisdiction (Bree v. Marescaux, (C. A.) 7 Q. B. D. 434 ; 50 L. J. Q. B. 676 ; 29 W. R. 858 ; 44 L. T. 644, 765) ; and this whether either party be a British subject or an alien. Again, the Supreme Court of Judi- cature in England has a general jurisdiction over all torts com- (467) 396 PRACTICE AND EVIDENCE. raitted by one Englishman to another in any corner of the world, whether in an English Colony (Wyatt v. Gore, Holt, N. P. 299 ; ante, p. 315) or in a foreign country (Scott v. Lord Seymour, 1 H. & C. 219 ; 31 L. J. Exch. 457 ; 32 L. J. Exch. 01 ; 8 Jur. K 8. 563 ; 10 W. R. 739 ; L. T. 607). But the Court of its own accord restricted these wide powers to cases in which the defendant is within jurisdiction at the time the writ is issued, so that it can be served upon him here. If the defend- ant is out of jurisdiction, no writ can be issued except by leave [*5 19] (Order II. r. 4), and such leave will only be granted in the cases specified in Order XL (Lire Eager, Eager v. Johnstone, (C. A.) 22 (li. I). 86 ; 52 L. J. Ch. 56 ; 31 W. R. 33 ; 47 L. T. 685), which greatly limits the powers formerly possessed by the Court. The effect of this Order is practically to prevent any action being brought here for damages for any libel or slander published abroad, and also for any libel or slander published here by a person ordinarily resident abroad, unless he happens to come to England, so that personal service can be effected. The fact that a newspaper published abroad has a branch office in this country will not enable a plaintiff to serve a writ at the branch office without leave under this rule. (Jones v. Scottish Accident Insurance Co. Limited, 17 Q. B. D. 421 ; 55 L. J. Q. B. 415 ; 55 L. T. 218 ; Baillie v. Goodwin & Co., 33 Ch. D. 604 ; 55 L. J. Ch. 849 ; 34 W. R. 787 ; 55 L. T. 56.) There can be no substituted service of a writ in an action where there cannot in law be personal service of the writ. (Field v. Bennett, 56 L. J. Q. B. 89.) And if the words bespoken out of jurisdiction, the fact that they incidentally affect property within jurisdiction is not sufficient to bring the case within Order XI. ( Casey v. Arnott, 2 C. P. D. 24 ; 461,. J. C. P. 3 ; 25 W. R. 46 ; 35 L. T. 424.) But the plaintiff will be entitled to leave under Order XI. r. 1 (/) if he adds a claim for an injunction on his writ. ( Tozier and Wife v. Hawkins, 15 Q. B. D 650, 680 ; 55 L.J. Q. B. 152 ; 34 W. R. 223.) And it has been held that it is not necessary that he should ask for an injunction only ; he may claim other relief as well. (Lisbon- Berlyn Gobi Fields Limited v. Ileddle, 52 L. T. 796.) But the judge at chambers, when granting leave to serve the writ out of jurisdiction, may, if he think fit, limit the plaintiff to that portion of his claim in respect of which it shall appear at the trial that the writ could have been properly served out of jurisdiction. (Thomas v. Duchess Dowager of Hamilton, (C. A.) 17 Q. B. D. 592 ; 55 L. J. Q. B. 555; 35 W. R. 22 ; 55 L. T. 219, 385.) The court will, in a proper case, give leave for the issue of a concurrent writ for service out of juris- diction, although the original writ was issued for service within jurisdiction. (Smalpaqe v. Tonqe, (C. A.) 17 Q. B. D. 644 ; 55 L. J. Q. B/518 ; 34 W. R. 768 ; 55 L. T. 44.) Choice of Court. Next, in what court shall the action be brought ? The County Court has no jurisdiction (9 & 10 Vict. c. 95, s. 58), unless by consent of both parties (19 & 20 Vict. c. 108, s. 23) ; although the action may ^468) STATUTE OF LIMITATIONS. 397 [*520] subsequently be remitted to the County Court (see post, pp. 526 — 8). Where the particulars before a County Court judge dis- close a cause of action for libel or slander, he has no power to amend them so as to give himself jurisdiction, e.g., by turning the case into an action for false imprisonment. (Hopper v. Warburton, 7 L. T. 722.) The Courts of Equity before the Judicature Act had no cog- nizance over libels or slander, whether public or private, except as contempt of their own courts. (Roach v. Garvan, lie Read ami another, 2 Atk. 4(59 ; 2 Dick. 794.) The Chancery Division now undoubtedly has jurisdiction to try a case of libel. (Thomas v. Williams, 14 Ch. D. 864 ; 49 L. J. Ch. 605 ; 28 W. R. 983 ; 43 L. T. 91.) But it is obviously inexpedient to commence such an ac- tion there ; for libel or no libel is peculiarly a question for a jury. In Thomas v. Williams, the defendant never expressed a wish for a jury till the whole of the evidence on both sides had been put in ; had he applied sooner, Fry, J., would have changed the mode of trial. (See 14 Ch. D. 871.) If an injunction be desired, it can be obtained as readily in one Division as in the other. For every rea- son, therefore, it is best to issue the writ in the Queen's Bench Divi- sion of the High Court of Justice. If, however, the defendant be an undergraduate resident within the University of Oxford or Cambridge, he must be sued in the University Court, although the plaintiff be in no way connected with the University or resident within its limits, and although the libels complained of appeared in several London newspapers. ( Gin- nett v. Whittingham, 16 Q. B. D. 761 ; 55 L. J. Q. B. 409 ; 34 W. R. 565.) Statute of Limitations. It is seldom that a plaintiff in an action of defamation allows his remedy to be barred by lapse of time. He is generally too eager to commence proceedings, and will not wait till the special damage has fully accrued. (See Ingram v. Latoson, 6 Bing. N. C. 212 ; 8 Scott, 471 ; 9 C. & P. 326 ; 4 Jur. 151 ; Goslin v. Garry, 7 M. & Gr. 342; 8 Scott, N. R. 21.) Still, the Duke of Brunswick waited nearly eighteen years ; it may be as well therefore to state that an action of slander for words actionable per se must be brought "within two years next after the words spoken, and not after" (21 Jac. I. c. 16, s. 3), and that an action for libel or of scandalum ma gnatum must be brought within six years from the date of publication. ( Lord Say tb Seal, v. Stephens, cited Cro. Car. 535 ; Litt. 342.) Whenever the words are actionable only by reason of special damage, the time does aot begin to run till the damage has actually been sustained. (Sajoi- [* 521] ders v. Edwards, 1 Sid. 95 ; 1 Keble, 389 ; Sir T. Raym. 61 ; Littleboy v. Wright, 1 Lev. 69 ; 1 Sid. 95 ; Barley Main Col- liery Co. v. Mitchell', (H. L.) 11 App. Cas. 127 ; 55 L.J. Q. B. 529 ; 54 L. T. 882.) And then I presume the plaintiff has six years within which to sue and not merely two, as the 21 Jac. I. c. 16, does not apply ; but see Littleboy v. Wright, supra. Lord Campbell was evidently under a misapprehension as to the effect of stat. 21 Jac. (•16'J» 398 PRACTICE AND EVIDENCE. I. c. 16,- in his remarks in 9 IT. L. C. p. 518. In all other cases the time runs from the date of publication, unless indeed the party then entitled to bring the action be under any disability, or be beyond the seas (21 Jac. I. c. 19, s. 7 ; 4 408 PRACTICE AND EVIDENCE. nesses. But if the action be against a newspaper of wide circula- tion in the district, or if the defendant in any other way is popular or powerful in his own neighborhood, the plaintiff should decide on Middlesex, where he is sure of an impartial jury. Instructions for Defence. On receiving the statement of claim, the defendant should care- fully consider his position, and decide on his course of action. Often it would be well for him to apologize at once, and pay money into court. In some few cases he should declare war to the knife, and justify. But it is no use for him to send his counsel merely a copy of the statement of claim with instructions consisting solely of the words " Counsel will please draw the necessary pleas." The defence in an action of libel or slander is a most important docu- ment, and should not be drafted hurriedly or on insufficient materials; Before settling it, counsel should be put in possession of all the facts. He should be asked to advise whether the occasion was privileged ; and if there is any thought of a justification, the evi- dence by which it is proposed to support that plea should be submitted to counsel in full detail, and his opinion taken as to its sufficiency. If no definite instructions be given to counsel, he will content himself with putting plaintiff to proof of every material allegation in the statement of claim. Amendment. The defendant's counsel, on receiving the statement of claim, should first consider if it discloses any cause of action. If the words are not actionable per se, and no special damage is alleged, he should take out a summons under Ord. XXV. r. 4, to have the action dismissed as being frivolous and vexatious. So, if the words set out are not defamatory, in their ordinary signification, and there is no innuendo, or if the innuendo alleges a meaning which it is clear that the words will not bear. In other cases, e. g., where the words complained of are not set out verbatim, a. summons should be taken out under Ord. XIX. r. 27. But unless the defect is seriously embarrassing, it is often better policy to leave it unamended ; it is no part of the defendant's duty to reform the plaintiff's pleading. But be careful in drawing the defence not to aid the defect in the claim in any way ; the less said about that part of the pleading the better ; do not admit it ; if need be, traverse it in so many words ; but after such denial, avoid the whole topic, if possible ; leaving plaintiff's counsel to explain it to the judge at the trial, if he can. Particulars. But the more usual application at this stage is for particulars. (See Ord. XIX. rr. 7, 8.) It is now settled practice that the defendant is entitled to par- ticulars of the places where, the times when, and the persons to (480) . TRAVERSES. 409 whom the alleged slanders or libels were published, if such details are not given [*534] in the statement of claim. (Moselle v. Bu- chanan, 16 Q. B. D. 656; r,:> L.J. Q. B. 376; 34 W. R. 488; extending the decision in Bradbury v. Cooper, 12 Q. B. D. 94 ; 53 L. J. Q. B. 558 ; 32 W. R. 32 ; 48 J. P. 198.) It is no objection that the defendanl must know already to whom he spoke and wrote ; he is entitled to know the case that is going to be made against him. But, of course, the plaintiff cannot be compelled to give the names of the persons passing in the street at the time the" alleged slander was uttered. ( Wingard v. Cox, Weekly Notes, 1876, p. 106 ; Bitt. 144 ; 20 Sol. J. .'541 ; 60 L. T. Notes, 304.) Nor can a person libelled in a newspaper be expected to give the names of all who take the paper. So, too, whenever any special damage is claimed, but not with sufficient detail, particulars will be ordered of the alleged damage, setting out the names of the customers wdio had ceased to deal with the plaintiff in consequence of defendant's words. This is a very useful order ; as, if plaintiff cannot give the names, he will be com- pelled to strike out the allegation of special damage, and the sum- mons should ask that it be struck out if such particulars be not delivered. (See Precedents of Pleading, Nos. 10, 20.) Particulars of general damage will, of course, never be ordered ; as such dam- age exists rather in contemplation of law than in reality. Defence. Fonnerly, by one short and convenient plea, " Not Guilty," the defendant denied the publication of the defamatory matter, denied its publication in the defamatory sense, imputed by the innuendo, or in any defamatory actionable sense which the words themselves imported, asserted that the occasion was privileged, and also denied that the words were spoken of the plaintiff in the way of his pro- fession or trade, whenever they were alleged to have been so spoken. But now this compendious mode of pleading is abolished. " Not Guilty " can no longer be pleaded. The defendant must now deal specifically with every allegation of which he does not admit the truth. It will be necessary, therefore, to consider the following several pleas : — 1. Traverses putting plaintiff to proof of his case. 2. Objections on points of law. 3. Privilege. 4. Justification. 5. Other special defences. [* 535] 6. Payment into court. 7. Apology. 8. The defendant may also set up a counterclaim. 1. Traverses. It was intended by the framers of the Judicature Act, that each party in his pleading should frankly admit every statement of fact (481) 410 PRACTICE AND EVIDE2TCE. which he does not intend to seriously dispute at the trial. But this intention has not been carried out. Counsel hesitate to make ad- missions unless they are expressly instructed to do so, which they very seldom are. No doubt it may sometimes be desirable to deny uttering or writing the words, so as to compel the plaintiff to call as his witness the person to whom the defendant spoke or wrote, whom then the defendant cross-examines to show privilege. But as a rule the defendant should admit the publication whenever it can be proved against him without trouble. Do not deny everything in the Statement of Claim. It looks weak, as though the defendant had no real defence. At the same time, be careful how you admit even the introductory paragraphs, which may appear immaterial ; they were not inserted without some purpose. Every allegation of fact not denied specifically shall be taken to be admitted. (Ord. XIX. r. 13.) The following are the most usual traverses : — 1. "The defendant never spoke or published the words set out in paragraph 2 of the Statement of Claim." The words " either falsely or maliciously" must not be added. {Belt v. Lawes, 51 L. J. Q. B. 359.) For the plea, as it stands without them, is a denial of the* publication in fact ; if the plaintiff prove publication, the law will presume it to have been false and malicious, until the defendant proves either privilege or a justification ; and both privilege and justification must be specially pleaded, not merely suggested by the addition Of four w T ords to a plea which realty raises quite a different defence. 2. " The defendant never spoke or published the words set out in paragraph 2 of the Statement of Claim with the meaning as therein alleged." This is a traverse of the innuendo. The innuendo, if there be one, should always be traversed ; as the plaintiff is sure to have put the blackest construction on the words. 3. '* The plaintiff did not, at the date of the publication, if any, of the said words, carry on the business of a butcher as alleged in paragraph 1 of the Statement of Claim"; or " The plaintiff was not at the date, &c, vicar of as alleged," or " was not then a [* 536] partner in the firm of Mears and Stainbank as alleged." This is a traverse of the special character in which the plaintiff sues ; and must always be specially pleaded. (Rules of Trinity Term, 1853, r. 16 ; R.' S. C. Ord. XIX. r. 11.) If the defendant also wishes to raise at the trial the defence that plaintiff's trade is illegal, this also must now be specially pleaded. [Manning v. Clem- ent, 7 Bing. 362 ; 5 M. & E. 211, is no longer law on this point.) 4. "The defendant denies that he spoke or published the said words, if at all, with reference to the plaintiff in the way of his said business or trade of a butcher [office or profession of ]." This plea did not require to be pleaded specially under the old sys- tem, and it would, therefore, I presume be now deemed to be included in a general denial of the allegations in the paragraph. But it is better to set it out plainly. 5. "The words did not refer to'the plaintiff." See R. S. C. App. E. s. 3, No. 2 (Wilson, 5th edit. p. 693). This defence seldom succeeds. (482) PRIVILEGE. 411 6. No denial or defence is necessary " as to damages claimed or their amount ; but they shall be deemed to he put in issue in all cases, unless expressly admitted." (Ord. XXI. r. 4. And see Ord. XIX. r. IT.) 2. Objections on Points of Law. Demurrers are now abolished (Ord. XXV. r. I). But r. 2 of the same order enacts that : — "Any party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be dis- posed of by the judge who tries the cause at or after the trial, pro- vided that by consent of the parties, or by order of the court or a judge on the application of either party, the same may be set 'down for hearing and disposed of at any time before the trial." And r. 3, provides that: — "If, in the opinion of the court or a judge, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action therein, the court or judge may thereupon dismiss the action or make such other order therein as maybe just." Hence it is clearly worth while to raise on the plead- ings any point of law which will substantially dispose of the whole action. A specimen is given in the Rules of 1883, Appendix E. s. 3, No. 2 (Wilson, 5th edit. 093):— "The defendant will object that the special damage stated is not sufficient in point of law to sustain this action." Similarly, if no special damage be alleged, the defend- ant may object "that the said words are not actionable without proof of special damage ;" or if they be printed "that the matter [*53 7] contained in the same paragraph is no libel." This was held a good plea in Ireland before the Judicature Act, on the ground that it raised a question which was now for the jury, not the judge. (Nixon v. Jlarveg, 8 Ir. C. L. Rep. 446.) And since then such a plea has been freely used in Ireland. (See Maguire v. ITnox, Ir. R. 5 C. L. 408 ; Stannus v. Finlay, Ir. R. 8 C. L. 264 ; Oosgrave v. Trade Auxiliary Co., Ir. R. 8 C. L. 349 ; M'Loughlin v. Pirger(l), Ir. R. 9 C. L. 170.) But if the defendant contends that the words cannot possibly be construed into a libel, this is a question for the judge who should then withdraw the case from the jury ; and such a contention may rightly be stated as a point of law. If words which are not defamatory are accompanied by an innuendo which purports to give them an actionable meaning, the defendant should first traverse the innuendo and may then proceed to object " that the said words are incapable of the meaning alleged in paragraph 2 of the Statement of Claim, or of any other defamatory meaning. The said words without the alleged meaning are no libel." 3. Privilege. Formerly it was unnecessary specially to plead privilege ; this defence was available under the plea of Not Guilty, as it still is in criminal cases. (Lillie v. Price, 5 A. & E. 645.) But since the Judicature Act privilege must be specially pleaded, and facts and circumstances must also be stated showing why and how the occasion (483) 412 PRACTICE AKD EVIDENCE. is privileged. (Ord. XIX. r. 18 ; Spademan v. Gibney) Ex. D. (not reported) ; Simmonds v. Dunne, Ir. R. 5 C. L. 358.) Several such pleas will be found collected on pp. 643-652. It is necessary where the occasion is not absolutely privileged to aver that the defendant acted bondjide and without malice. (Smith v. Thomas, 2 Bing. N. C. :i 72.) Such an allegation is material in cases of absolute privilege. If defendant avers that he had just and reasonable grounds for believing the charges against the plaintiff to be true, he must set forth what were the grounds of such belief. (Fitzgerald v. Campbell, 18 Ir. Jur. 153 ; 15 L. T. 74. But see Cave v. Torre, 54 L. T. 515.) It is better, however, to avoid such an averment altogether, and to state that he repeated the charge bondjide and in the honest belief of its truth. An averment of just and reasonable grounds runs dangerously near to a justification, and the averment of bond fides covers and includes it. 4. Justification. [* 538] This is a most dangerous plea, and should never be placed on the record without careful consideration of the sufficiency of the evidence by which it is to be supported ; for the strictest proof is required (see Leyman v. Latimer, 3 Ex. D. 15, 352 ; 47 L. J. Ex. 470 ; 25 W. R. 751 ; 26 W. R. 305 ; 37 L. T. 360, 819) ; and if it be not proved, the defendant's persistence in the charge is some evidence of malice, and will always tend to aggravate the damages given against him. The defence cannot be raised without a special plea ; and counsel should never draw such a plea without express instructions, and even then should always caution the defendant as to the risk he runs. When the libel consists of one specific charge, e. g., " He forged my name to a bill for £500," it is sufficient to plead generally :— " The said words are true in substance and in fact." So if the charge made by the defendant is : — " He stole his master's sheep," it will be suf- ficient to allege that " the plaintiff did steal four sheep the property of his master, John Jones." But whenever a general charge is made, the very words alleged to have been uttered must be expressly jus- tified (per Quain, J., in Restell & another v. Steward, Weekly Notes, 1875, p. 249 ; 1 Charley, 89 ; Bitt. 65 ; 20 Sol. J. 140 ; 60 L. T. Notes, 123) ; and also specific instances must be given, either in the plea or in the particulars. (Newman v. Bailey, 2 Chit. 665 ; V Anson v. Stuart, 1 T. R. 748 ; 2 Sm. L. Cas. 6th ed. 57 ; Holmes v. Catesby, 1 Taunt. 543 ; HicMnbotham v. Leach, 10 M. & W. 361.) And it is not sufficient to allege and prove one solitary instance, where the words impute constant and habitual misconduct. ( Wakley v. Cooke & Ilealey, 4 Ex. 511 ; 19 L. J. Ex. 91.) It is enough to cite three instances (Moore v. Terrell and others, 4 B. & Ad. 870 ; 1 N. & M. 559), and to clearly prove two. (R.pros. Lambri v. Labouchere, 14 Cox, C. C. 419.) 'Such instances must be pleaded with sufficient particularity to inform the plaintiff precisely what are the facts to be tried. It should be alleged that they happened " before the publication, if any, o'f the said words," and then the plea may con- (484) JUSTIFICATION. 413 elude, "wherefore the defendant says thai the said words are true in substance and in fact." As a rule these instances should be stated in the body of the plea, (lioness B. & ('. 556) ; for it will only amount to an assertion that A. said so ; when as the defendant must go further and prove in addition that what A. said Mas true. (See ante, p. 174.) The precise charge must be justified ; and the whole of the pre- cise charge. (Goodburne v. Bowman <£' others, 9 Bing. 532.) Every fact stated must be proved true ( Weaver v. Lloyd, 2 B. & C. 678 ; Helsham. v. Blackwood, 11 C. B. Ill ; 20 L. .J. ( ; . P. 187 ; 15 Jur. 861), unless it be absolutely immaterial and trivial, and in no way alters the complexion of the affair. But not every comment on such facts need be justified. Thus, if the defendant states certain facts, and then calls the plaintiff a " scamp " and a " rascal, v and such epithets would be deserved if the facts as stated are true, then it is sufficient to plead the truth of the facts ; the epithets need not be expressly justified. (Morrison v. Harmer, 3 Bing. N. C. 767 ; 4 Scott, 533 ; 3 Hodges, 108 ; Tighe v. Cooper, 7 E. & B. 039 ; 26 L. J. Q. B. 215 ; 3 Jur. N. S. 716.) But if the comment introduces an independent fact, or substantially aggravates the main imputa- tion, it must be expressly justified. Thus a libellous heading to a newspaper article must be justified as well as the facts stated in the article. ( Bishop v. Latimer, 4 L. T. 775 ; Clement v. Levi* it- others, 3 Br. & Bing. 297 ; 3 B. & Aid. 702 ; 7 Moore, 200. See ante, pp. 170-3.) But the defendant may in mitigation of damages by a special plea (Vessey v. Pike, 3 C. & P. 512) justify a part of the libel, provided such part is distinct and severable from the rest. (See ante, p. 176.) But the plea must distinctly identify the portion justified. (See Precedent, No. 38.) Also, the defendant may deny that the plaintiff's innuendo puts the true construction on the words and assert that in their natural and ordinary signification they are true. But if the defendant adopts the meaning -put upon the words by the innuendo, then he must justify them in that sense, and not in any other. ( White v. Tyrrell (2), 5 Ir. C. L. R. 498.) Where a plaintiff claims damages for a libel contained in a letter set out with innuendoes, a justification in the form — "The statements in the said letter are true," is a justification of the libel itself, but not of it as read with the innuendo. (Per Archibald, J., at Nisi Prius, in Payne v. Conrthope, 20 Sol. Journ. 724.) For a plea of justification under the new system will " not be taken to intend a justification of (485) 414 FRACTICE AND EVIDENCE. anything more than it actually professes to justify." But any plea which wears a doubtful aspect, which [*540| may be either a justi- fication, or a mere traverse, or a plea of privilege, will be struck out at chambers as embarrassing. [Carr v. Ducked, 5 II. & N. 783 ; 29 L. J. Ex. 468 ; Brembridge v. Latimer, 12 W. R. 878 ; 10 L. T. 816 ; WKeefe v. Cardinal Cullen, Ir. R. 7 C. L. 319.) A defendant will not be allowed to amend his defence and plead a justification at the last moment, e. g., on the day before the trial. (Kirby v. Simpson, 3 Dowl. 791.) 5. Other Special Defences. Statute of Limitations. — The objection that the action is brought too late must be raised by a special plea (Ord. XIX. r. 15), even though it appear on the face of the Statement of Claim. This was decided as long ago as 1636. (Haivkings v. Billhead, Cro. Car. 404.) Previous Action. — That plaintiff has pi'eviously sued defendant for the same cause of action is a defence, whatever the result of the former action. (See Precedent, No. 63.) That judgment was recovered against one joint publisher is also a bar to any action against the others for the same publication. (See form of plea, 2 C. & K. 683, n.) Accord and Satisfaction. — That plaintiff agreed to accept certain apologies and that defendant duly published them in accordance with such agreement was held a bar to the action in Boosey v. Wood, 3 H. & C. 484 ; 34 L. J. Ex. 65. See also Lane v. Applegate, I Stark. 97 ; and Jlar/cs v. Conservative Newspaper Co., 3 Times L. R. 244. As to accord and satisfaction made by one jointly liable with the defendant see Bainbridge v. Lax, 9 Q. B. 819 ; Thurman v. Wild, II A. & E. 453 ; Hey v. Moorhouse, 6 Bing. N. C. 52. An accord or satisfaction made by a third party on the defendant's behalf, and accepted by the plaintiff in discharge will be a bar to the action. (Jo)ies v. Broadhurst, 9 C. B. 173.) See Precedents, Nos. 64, 65. Release. — A release must be specially pleaded. (Ord. XIX. r. 15.) In an American case (Beach et ux. Beach, 2 Hill (N. Y.) 260, ante, p. 399), a release by the plaintiff's husband was pleaded to an action for slander of the wife. Husband and Wife. — By virtue of the Married Women's Property Act Amendment Act, 1874 (37 & 38 Vict. c. 50), s. 2, a husband, when sued for a libel or slander published or uttered by his wife before her marriage may, if married between July 30th, 1874 and January 1st, 1883, in addition to any other pleas, plead that no property vested in him by reason of the marriage within the mean- ing of s. 5, or if a certain amount of property did so vest in him, then that he is liable [*54l] to that extent and no further. As to a husband married on or since January 1st, 1883, see ante, pp. 402, 403. Where a man and woman sue as husband and wife for defamation of the woman, the defendant may plead that they are not husband and wife ; for if so, the male plaintiff has no right of action. (486) APOLOGY. 415 (Chantler and wife v. Lindsey, 16 M. & W. 82 ; 4 Dowl. & Lown- des, 339.) But now see 45 & 40 Vict. C. 75, S. 1, ante, p. 390. 6. Payment into Court. Payment into court is not strictly a defence ; it is rather an attempt at a compromise, practically admitting liability to a certain extent. In all other actions a defendant may pay money into court, while at the same time he denies all liability. But this is not allowed in actions or counter-claims for libel or slander. (Ord. XXII. r. 1.) Here the defendant if he pays money into court at all, must do so "by way of satisfaction which shall he taken to admit the claim or cause "of action in respect of which the payment is made." Hence Jones v. Mackie, L. R. 3 Ex. 1 ; :;7 L. J. Ex. 1 ; 16 W. R. 109 ; 17 L. T. 151, and Haickesley v. Bradshaw, (('. A.) 5 Q. B. D. 302 ; 49 L. J. Q. B. 333 ; 28 W. R. 557 ; 42 L. T. 285 are no longer law since October 24th, 1883. I should not, therefore, advise'a defendant who has any defence on the merits to pay money into court. If he decides to do so, he should pay in a good round sum; generally twiee as much as the defendant himself thinks the plaintiff is entitled to, will be about the right amount for him to pay into court, Generally it is not worth while to pay a farthing or a shilling into court ; for it is very improbable that plaintiff will accept that sum, and if the jury do not award more than such con- temptuous damages, the judge would probably order the plaintiff to pay his own costs, whether that amount had been paid into court or not. It is submitted that where the words are defamatory in their natural and obvious meaning and the plaintiff by his innuendo puts on them a more defamatory meaning, the defendant may traverse the innuendo and at the same time pay money into court ; as such a traverse is not in that case " a defence denying liability." (See Precedents, Nos. 66, 68, 69.) 7. Apoloyy. By Lord Campbell's Libel Act (6 & 7 Vict. c. 96), s. 2, in an action for a libel contained in any public newspaper or periodical publication, the defendant may plead that the libel was inserted [* 542] without actual malice and without gross negligence, and that before the commencement of the action, or at the earliest opportu- nity afterwards, an apology was published or offered, and may pay money into court by way of amends. (For the form of plea, see Precedent, No. 72.)' The words in this section enabling the defend- ant to pay money into court were repealed in 1879 as being unnec- essary, the Rules of 1875 permitting payment into court in every action. But the section 2 of the 8 & 9 Vict. c. 75, which requires payment into court as the necessary concomitant of such a plea is not repealed. Money must therefore be paid into court when the pleading is delivered, if not before ; otherwise the plea will be struck out. And such payment will operate as an admission of liability. (Order XXII. r. 1.) (487) 416 PRACTICE AND EVIDENCE. If therefore the proprietor of a newspaper desires to rely on this section, he cannot set up any other defence to the action, though lie may of course deliver a notice under Order XXXVI., r. 37. The above section of Lord Campbell's Act applies only to public periodical publications ; but s. 1 of the same act empowers any defendant to give in evidence in mitigation of damages in any action, whether of slander or libel, that he made or offered an apology to the plaintiff before action, or at the earliest opportunity afterwards, if he had no opportunity before action. This section distinctly does not empower a defendant to plead an apology ; for it requires him with his plea to give notice in writing to the plaintiff of his intention to give such apology in evidence. But there can be no objection now to the defendant making such written notice part of his defence ; indeed that he made such an apology is a material fact on which he relies, within the meaning of Order XIX. r. 4. It is, I think, now open to a defendant, if he think fit, to state in his pleading facts which are no defence, but which tend to mitigate the damages. It can scarcely be said that such a method of pleading embarrasses the plaintiff, for it gives him notice what will be the defendant's case at the trial. Indeed the decisions in Scott v. Sampson, 8 Q. B. D. 491 ; 51 L. J. Q. B. 380 ; 30 W. R. 541 ; 46 L. T. 412 ; 46 J. P. 408 ; and MiUington v. Loving, 6 Q. B. D. 190 ; 50 L. J. Q. B. 214 ; 29 W. R. 207 ; 43 L. T. 657 ; 45 J. R 268, if taken literally, imply that a defendant must always plead such facts in his defence^ But this is not the practice, and it may be inferred from Order XXXVI. r. 37, that a defendant is not bound to set out in his pleading the ,facts on which he proposes to rely in mitigation of damages. But it is quite another matter for the defendant in his defence to apologize for the first time, when he had previous opportunities, of which he did not avail himself. Still this is sometimes done when [* 543] money is paid into court ; it shows that the defendant has taken his counsel's opinion, and acted on it. (See Precedents, Nos. 34, 67.) It certainly cannot embarrass a plaintiff to have placed upon the record a full retractation of the, charge accompanied by an expression of regret ; and it should conduce to an amicable settle- ment. But it is certainly strange pleading ; and if the plaintiff wishes to have it struck out, his application will probably be suc- cessful ; though he can hardly afterwards demand an apology at the trial. In cases within Order XXXVI. r. 37, the defendant should deliver particulars as therein required. (See Precedents, Nos. 67, 68, 69.) 8. Counterclaim. It is not often that there is a counterclaim in an action for libel or slander, and it would clearly be prejudicial to the fair trial of the action to permit a defendant to raise incongruous issues. Still there is no reason why other libels or slanders published by the plaintiff of the defendant should not be made matter of counter- claim, and the fact that they arise out of a different transaction will be no ground for excluding them ( Quin v. Hession, 40 L. T. 70 ; 4 L. R. (Ir.) 35), if they can be " conveniently disposed of in the pend- (488) REPLY. 417 ing action." In Nicholson v. Jackson, W. N. 1876, p. 38, where an action had been brought by a director of a company for libel, a counterclaim set up by the defendant for damages for less sustained in respect of shares bought on false representations, whs struck out by Lindley, .1. So, in Lee v. Colyer , W. N. 1876, j>. 8 ; Bitt. so ; i Charley, 86 ; 20 Sol. J. 177 ; GO L. T. Notes, 157, Quail), J., struck out a counterclaim for not repairing a house, the action being for assault and slander. And where the writ was specially indorsed for two quarters' rent, the defendant was not allowed to set up a coun- terclaim for libel and slander not connected with the claim for rent. (Eotheram v. Priest, 49 L. J. C. P. 105 ; 28 W. R. 277 ; 41 L. T. 558.) But in Dobede v. Fisher, at the Cambridge Summer Assizes, 1880, the late Lord Chief Baron had to try an action of slander, in in which there was a counterclaim about a right of shooting over the land occupied by the defendant. ( Times for July 29th, 1880.) Reply. The plaintiff on receiving the Defence should first consider whether any part of it is such as to entitle him to apply at chambers for an order to amend it, But it does not follow that he should so apply in every case in which he is entitled so to do. (See ante, 533.) It [*544] is often better policy to leave a flagrantly bad specimen of pleading unamended, and not to kindly strengthen your adversary's position. No party may dictate to the other how he shall plead ; he must satisfy the master at chambers or district registrar that the passage to which he objects is either scandalous (that is, both^ offen- sive and at the same time irrelevant), or that it tends to prejudice, embarrass, or delay the fair trial of the action. Then, it may be that his own statement of claim may require amendment ; such amendment now takes the place of a " new assignment." (Order XXIII r. 6.) Or the plaintiff mav amend by adding a new defend- ant, {Edward v. Lowther, 45 L. J. C. P. 417 ; 24 W. R 434 ; 34 L. T. 255.) Next, if the defendant's pleading requires no amend- ment, particulars may still be demanded. Thus, where the libel im- puted that the plaintiffs had infringed defendant's patents, the de- fendant was ordered to deliver particulars to the plaintiffs, showing in what respects he alleged that the plaintiffs had infringed his patents, and giving references to line and page of his own specifications. ( Wren and another v. Weild, 38 L. J.Q. B. 88.) If no facts be stated in a plea of justification the plaintiff should apply for particulars, unless the charge of itself be specific and precise ; see ante, p. 538. If the facts stated are insufficient in law to justify the imputation, the plaintiff may apply to have the plea struck out or amended. So, too, particulars may be obtained if a plea of privilege does not state the circumstances which render the occasion privileged, and on ob- taining such particulars plaintiff may object, as a matter of law, thafrthey disclose no privilege. A reply as a rule is a mere joinder of issue in actions of defama- tion, unless there be a counterclaim. This operates as a denial of every material allegation of fact in the pleading of the other side, 27 lib. & slan. (48!)) 418 PRACTICE AND EVIDENCE. except admissions. (Orel. XIX. r. 18.) To a plea of absolute privi- lege no other reply is possible. (See Scott v. Mansfield, L. R. 3 Ex. 220 ; 37 L. J. Ex.* 155 ; 16 W. R. 911 ; 18 L. T. 572 ; Daw/tin* v. Lord Paulet, L. R. 5 Q. 13. 94 ; 39 L. J. Q. B. 53 ; 18 W. R. 336 ; 21L.T. 584.) To a plea of qualified privilege a special reply is unnecessary, if malice be alleged in the statement of claim or negatived in the de- fence ; see ante, p. 530. On a plea under s. 2 of Lord Campbell's Act, the plaintiff usually joins issue merely, but he may if he likes admit that the libel appeared in a newspaper, and that money had been paid into court ; but deny that the libel was inserted without actual malice and without gross negligence, and that the sum of money paid into court is sufficient. ( Chadwick v. Ilerapat/i, 3 C. B. 885 ; 16 L. J. C. P. 104 ; 4 D. & L. 653 ; Smith v. Harrison, 1 F. & F. 565.) To a general plea of payment into court some pleaders reply specially that the sum [*545] paid in is insufficient ; but a mere joinder of issue will raise that point with equal effect. To a justification setting out a conviction or to a plea of a previous action, the plaintiff may reply specially Nid tiel record ; or if the con- viction be erroneously stated in the defence (as in Alexander v. N. M Ry. Co., 34 L. J. Q. B. 152 ; llJur. N. S. 619 ; 13 W. R. 651 ; 6 B. & S. 340,) the plaintiff may set it out correctly in his reply. Or to such a conviction the plaintiff may reply a pardon ( Ouddington v. Wilkins, Hob. 67, 81 ; 2 Hawk. P. C. c. 37, s. 48), or that he had undergone his sentence, which will have the same effect (Precedent No. 39 ; Leyman v. Latimer and others, 35 Ex. D. 15, 352 ; 46 L. J. Ex. 765 ; 47 L. J. Ex. 470 ; 25 W. R. 71 ; 26 W. R. 305 ; 87 L. T. 360, 819 ; 14 Cox, C. C. 55) ; though I apprehend neither reply would be an answer if the words complained of were that the plaintiff " was convicted of " a crime. To a plea of the Statute of Limitations, plaintiff may specially reply absence beyond seas under statute of Anne, ante, p. 521. Lnter rogatories. Great care is necessary in applying former decisions as to interrog- atories to the present practice. Before the Judicature Act special leave was required to administer interrogatories, and the property of any interrogatory proposed to be administered was discussed on the application for leave, which is not the practice now. Then from November 1st, 1875, to October 24th, 1883 either party delivered interrogatories as of right, subject only to this — that if he exhibited interrogatories unreasonably, vexatiously, or at improper length, he might have been ordered to pay the costs of them. Now, again, leave is necessary, which will not be granted except in very excep- tional circumstances before the defence is delivered; and £5 at least must be paid into Court for the privilege (Ord. XXXI. rr. 1, 26). Then between November 1st, 1875, and November 18th, 1878, the party interrogated was always allowed to apply at chambers to'have objectionable interrogatories struck out ; this now, as a rule, he may not do ; he merely refuses to answer them in his affidavit in answer. (See 2>ost, p. 550.) (490) INTERROGATORIES. 419 In actions of slander, too, the courts formerly felt a great reluc- tance in allowing any interrogatories at all to be administered. (Stern v. Sevastopulo, 14 C. B. N. S. 737 ; 32 L. J. C. P. 208). In fact, there is only one instance reported of such interrogatories being allowed before the Judicature Act, and in that case (Atkinson v. Fosbroke, L. R. 1 Q. B. 628 ; 35 L. J. Q. B. 182 ; 12 Jur. N. S. 810 ; 14 W. R. [*540] 832 ; 14 L. T. 553) the plaintiff had exhausted every other channel of inquiry, and was unable to discover what were the exact words the defendant had uttered. Formerly, also, the court was reluctant in actions both of libel and slander to assist the defendant in obtaining evidence in support of his plea of justifi- cation, on the ground that he ought not to have taken away the character of the plaintiff, unless he was in a position to prove the truth of the charge he made. (Metropolitan Saloon Omnibus Co.y. Hawkins, 4 H. & N. 87, 146; 28 L. J. Ex. 201 ; 7 W. R. 265 ; 32 L. T. (Old S.) 281 ; 5 Jur. N. S. 226.) But this reluctance has entirely disappeared (see Marriott v. Chamberlain, (C.A.) 17 Q.B.D. 154 ; 5*5 L. J. Q. B. 448; 34 W. R. 783 ; 54 L. T. 714), and both defendant and plaintiff now deliver and answer interrogatories as in any other action. The object of interrogating is twofold ; first, to obtain admissions to facilitate the proof of your own case"; secondly, to ascertain so far as possible the case of your opponent. There is therefore some art required in drawing interrogatories. Think rather of the answer defendant will probably give you than of the answer which you are instructed he ought to give to the question you are putting. The defendant's version of the matter must differ from the plaintiff's version, and your object is to discover precisely where and to what extent they differ. The question then should be framed so as, in the first place, to elicit if possible the admission you desire: and at the same time, failing that answer, to get, at all events, some definite statement sworn to, from which the party interrogated cannot after- wards diverge. Leave him no loophole of escape. If he will not answer the question your way, still at least find out how far he is prepared to go in the opposite direction. To secure this it is well to ask a long series of short questions, not one long question. Each additional detail should be put in a question by itself. But there are certain rules which determine what interrogatories may be administered and what not : 1. Interrogatories must be relevant to the matters in issue. Not every question which could be asked a witness in the box may be put as an interrogatory. (Per Martin, B., mPeppiatt and wife v. Smith, 33 L. J. Ex. 240 ; and see the concluding words of Ord. XXXI. r. 1.) Thus, questions to credit only will not be allowed, although of course, they maj'' be asked the party in cross-examination. (Baker v. Newton, Weeklv Notes, 1876, p. 8 ; 1 Charley, 107; Bitt, 80; 20 Sol. J. 177.; 60 L. T. Notes, 157; Allhusenv. Zabouchere, (C.A.) 3 Q. B. D. 654; 47 L. J. Ch. 819; 27 W. R. 12; 39 L. T. 207.) " We have never allowed interrogatories merely as to the credibility of a party as a witness." (Per Cockburn, C. J., in Labouchere v. Shaw, 41 J. P. 788^) [*547] Again, no question need be answered which is not put bond (491) 420 PRACTICE AND EVIDENCE. fide for the purposes of the present action. Tims, the publisher of a newspaper must answer the interrogatory : " Was not the pas- sage set out in paragraph 3 of the Statement of Claim intended to apply to the plaintiff ? " ; but he need not answer the further ques- tion, " If not, say to whom ? " as, if the passage did not apply to the plaintiff, it is immaterial to whom it referred, so far as the plaintiff's action is concerned. ( Wilton v. Brignell, Weekly Notes, 1875, p. 239 ; 1 Charley, 105 ; Bitt. 56 ; 20 Sol. J. 121 ; GO L. T. Notes, 104.) So defendant cannot be asked, "If you did not print the libel, did M'C. & Co. or some other and what firm print it ? " (Pankhurst v. Wighton & Co., 2 Times L. 745.) Interrogatories asking plaintiff whether similar charges had not been made against him previously in a newspaper, and whether he had contradicted them or taken any notice of them on that occasion, are clearly irrelevant. (Pankhurst v. Hamilton, 2 Times L. R. 682.) So, too, interrogatories were disallowed which asked the plaintiff for particulars of sums already recovered by him in other actions in respect of other publications of the same libel. ( Tucker v. Law- son, 2 Times L. R. 593.) But interrogatories are not, like pleadings, confined to the facts on which the parties intend to rely ; they should be, and generally are, directed to the evidence by which they intend to establish such facts at, the trial. Either party may interrogate as to any link in the chain of evidence necessary to substantiate his case ; the ques- tion is relevant as leading up to a matter in issue in the action. Thus, if the defendant denies that he wrote the libel, he may be asked whether other documents produced to him are not in his handwriting, though such other documents have nothing to do with the case but will only be used for comparison with the libel. {Jones v. Richards, 15 Q. B. D. 439.) So, too, a defendant may interrogate as to any fact material to his case upon the issue on a plea of justification. {Marriott v. Chamberlain, (C. A.) 17 Q. B. D. 154 ; 55 L. J. Q. B. 448 ; 34 W. R. 783 ; 54 L. T. 714.) So if the occasion be privileged either party may interrogate the other with a view of proving or disproving malice. ( Cooper v. Black- more and others, 2 Times L. R 746.) It was always permissible to interrogate as to matters of reply. Davis v. Gray (30 L. T. 418), if rightly reported, is and was bad law. 2. The party interrogating may put his whole case to his oppo- nent if he thinks fit, though it is not always wise to do so ; he may also interrogate in full detail as to matters common to the case of both parties ; but he is not entitled to obtain more than an outline of his oppo [*548] nent's case. You can compel your adversary to disclose the facts on which he intends to rely, but not the evidence by which he proposes to prove those facts. You cannot claim to " see his brief " or ask him to name the witnesses he means to call at the trial. You may not ask in whose presence such and such events occurred ; but you are entitled to know precisely what is the charge made against you, and what is the case you have to meet. (Eade and another v. Jacobs, (C. A.) 3 Ex. D. 335 ; 47 L. J. Ex. 74 ; 26 W. R. 159 ; 37 L. T. 621 ; Johns v. James, 13 Ch. D. 370; (492) INTERROGATORIES. 421 Ashley v. Taylor, 37 L. T. 522 ; (C. A.) 38 L. T. 44.) And it is no objection that the same information might have been obtained by particulars. In Gay v. Labouchere (4 Q. B. D. 200 ; 4S L. J. Q. 15. 27!) ; -27 W. R. 412), Cockburn, C. .1., asks, " Why should not the plaintiff have this information by means of interrogatories as well as by particulars?" Indeed, there is nothing to prevent a defendant's applying first for particulars and then interrogating the plaintiff as to those particulars afterwards. But a master at chambers has refused to order a defendant to answer interrogato- ries as to the details of matters which were mentioned only in a notice under Order XXXVI. r. 37. 3. But even in interrogating as to your own case, the questions asked must not be "fishing;" that is, they must refer to some definite and existing state of circumstances, not be put merely in the hopes of discovering something which may help the party in- terrogating to make out some case. They must be confined to matters which there is good ground for believing to have occurred. Thus, where the libel charged the plaintiff with having used certain blasphemous phrases, interrogatories were disallowed as " fishing," the object of which was to show that if plaintiff had not said what he was charged with saying, still he had said something very much like it. (Pankhurst \. Hamilton, 2 Times L. R. 682.) "Fishing" interrogatories are especially objectionable when their object is to get at something which may support a plea of justification. ( Gour- ley v. Plimsoll, L. R. 8 C. P. 362 ; 42 L. J. C. P. 121 ; 21 W. R. 683 ; 28 L. T. 598; Buchanan v. Taylor, Weekly Notes for 1876, p. 73 ; Bitt. 131 ; 20 Sol. J. 298 ; 60 L. T. Notes, 268.) 4. In the Queen's Bench Division, at all events, interrogatories are not allowed as to the contents of written documents, unless it is admitted that such documents have been lost or destroyed. (Stein v. Tabor, 31 L. T. 444 ; Mtzgibbon v. Greer, Ir. R. 9 C. L. 294.) Nor will interrogatories be allowed, the object of which is to con- tradict a written document. (Moor v. Roberts, 3 C. B. N S. 671 ; 26 L. J. C. P. 246.) But you may ask what has become of a par- ticular document, and continue : " If you state that such document is lost or destroyed, [*549] set out the contents of the same to the best of your recollection and belief. If you have a copy make it an exhibit to your answer." (See Wolverhampton New Water- works Co. v. Ilawksford, 5 C. B. N. S. 703 ; 28 L. J. C. P. 198 ; Dairy mple v. Leslie, 8 Q. B. D. 5 ; 51 L. J. Q. B. 61 ; 30 W. R. 105 ;' 45 L. T. 478.) 5. Questions which tend to criminate may certainly be asked, unless they are either irrelevant or " fishing," though the party interrogated is not bound to answ r er them (post, p. 551). That the interrogatories will tend to criminate others is no objection, if they be put bond fide for the purposes of the present action. (J/' Cor- quodale v. Bell and another, W. N. 1877, p. 39 ; Bitt. Ill ; 20 Sol. J. 260 ; 60 L. T. Notes, 232.) That to answer them would expose the party interrogated, or third persons, to civil actions, was never an objection. (Tetley v. JEaston, 25 L. J. C. P. 293.) (493) 422 PRACTICE AND EVIDENCE. Setting aside Interrogatories. Interrogatories cannot now be set aside, unless they are, as a whole, "exhibited unreasonably or vexatiously," or unless any one or more of them is or are " scandalous." (Ord. XXXI. r. 7 ; Gay V. Labouchere, 4 Q. B. D. 206 ; 48 L. J. Q. B. 279 ; 27 W. R. 413.) Any objection to particular interrogatories, or portions of inter- rogatories, on the ground that they are irrelevant, or " fishing," &c, &c, must be taken in the affidavit in answer, and is no ground for an application to set the interrogatories aside. And both the phrases "unreasonable or vexatious" and "scanda- lous" have special meanings. Masters at chambers, follow- ing the dictum of Pollock, B., Gay v. Labouchere (4 Q. B. D. 207), construe " unreasonable or vexatious " as referring to the time or stage in the cause at which they are exhibited ; in short, that they are " premature." (See Mercier v. Cotton, 1 Q. B. D. 442 ; 46 L. J. Q. B. 184 ; 24 W. R 566 ; 35 L. T. 79.) A "scan- dalous" interrogatory may be defined as an insulting or degrading question, which is irrelevant or impertinent to the matters in issue. "Certainly nothing can be scandalous which is relevant." (Per Cotton, L.J. , in Fisher v. Owen, 8 Ch. D. 653.) Questions which tend to criminate are not scandalous, unless they are either irrele- vant or "fishing" (Allhusen v. Labouchere, 3 Q. B. D. 654 ; 47 L. J. Ch. 819 ; 27 W. R. 12 ; 39 L. T. 207), and will not, therefore, be struck out or set aside ; the party interrogated must take the objection on oath in his answer. The only case to the contrary since the Judicature Act came into operation (Atherley v. Harvey, 2 Q. B. D. 524 ; 46 L. J. Q. B. 518 ; 25 W. R. 727 ; 36 L. T. 551) was decided under a mis [* 550] apprehension of the previous practice in Equity, as has been frequently pointed out by learned judges, and is admittedly bad law. (See the remarks of Cotton, L. J., at 8 Ch. D. p. 654.) And even where the party might have applied to have the inter- rogatory struck out, he may still take the same objection in his answer. (Fisher v. Owen, 8 Ch. D. 645 ; 47 L.J. Ch. 477, 681 ; 26 W. R. 417, 581 ; 38 L. T. 252, 577.) He waives nothing by not applying ; hence applications to strike out particular interrogatories are now rarely made. Answers to Interrogatories. The answers must be carefully drawn. It is quite admissible to answer " Yes " or " No " simply, so long as it is clear how much is thus admitted or denied. So, too, it is quite admissible to say, " I do not know," where the matter is clearly not within the deponent's own knowledge or that of his servants. He is not bound to procure information from others for the purpose of answering. (Per Brett, J., in Phillips v. Houth, L. R. 7 C. P. 287 ; Held v. Bennett, 2 Times L. R. 91, 122.) The party interrogated may answer guard- edly, and make qualified admissions only, so long as both the admission and the qualification are clear and definite. (Malone v. Fitzgerald, 18 L. R. Ir. 187.) (.494) ANSWERS TO INTERROGATORIES. 423 Objections under Ord. XXXI. r. 6 are usually taken in the follow- ing form. It is safer in every case to expressly take such objec- tions in the answer, though it is not always essential so to 47 ; 24 L. J. Ex. 160; 24 L. T. (Old S.) 2*74.) Where the facts are in dispute, it will be for the jury to decide whether the defendant wrote the libel, whether it wasever published to a third person other than the plaintiff, whether the office where the libel was purchased was the defendant's or not, &c, &C. When the facts are found, it- is for the judge to decide whether there has been a publication in law by the defendant. Proof of the Libel. The libel itself must be produced at the trial : the jury are enti- tled in all cases to see it. ( Wright v. Woodgate, 2 C. M. & R. 573 ; Gilpin, v. Folder, 9 Ex. 615 ; 2*3 L. J. Ex. 156.) The defendant is entitled to have the whole of it read. {Cooke v. Hughes, R. & M. 112.) The original must be carefully traced, Avherc it has passed through many hands {Fryer v. Gathercole, 4 Ex. 262 ; 18 L. J. Ex. 389 ; Adams v. Kelly, Ry. & Moo. 157), and the identical one pub- lished must be produced or accounted for. (7?. v. Rosenstein, 2 C. & P. 414.) But where a large number of copies are printed from the same type, or lithographed at the same time by the same process, none of them are copies in the legal sense of the word. They are are all counterpart originals, and each is primary evidence of the contents of the rest, {R. v. Watson, 2 Stark. 129 ; Johnson v. Hud- son and Morgan, 7 A. & E. 233, n.) [* 563] Where the libel is contained in a letter or memorial sent to a Secretary of State, or to some Government, department, an objection is often raised to its production on grounds of public policy. If this objection appears to the judge to be well founded, no evidence can be given of the contents of such letter or memorial. In Beatson v. Skene (5 II. & K 838 ; 29 L. J. Ex. 430 ; 4 Jur. N. S. 780) it was decided that the objection must be taken by the head of the public department of State, who is alone able to judge. This decision was followed by Lord Coleridge in November, 1877, in the case of Stoann v. Vines, cited 37 L. T. 469. (See also JFFlveney v. Connellan, 17 Ir. C. L. R. 55.) The rule on the point is that " the court is entitled to have the pledge and security of the head officer of State to give the reason for the non-produc- tion of those documents which it is objected to produce, and to demand that he shall come into the witness-box, and there say that he is the head of the department, and objects to such and such documents being produced, specifying them, on the ground of public policy." {Per Grove, J., in Kain v. Farrier, 3 7 L. T. 470.) But in the "case of Spackman v. Gibney, tried before the same 28 LIB. k SLAN. (505) 434 PRACTICE AND EVIDENCE. learned judge at the Bristol Spring Assizes, 1878, the Government clerk, who had brought down the document in obedience to his subpoena, refused to produce it, stating that the Home Secretary had ordered him to object on grounds of public policy ; and the learned judge refused to trouble Mr. Cross to come down to Bristol to repeat what his clerk had said. But a letter written by a private individual to the Chief Secretary of the Postmaster General com- plaining of the conduct of the guard of the Exeter mail, though it may be a privileged communication in the sense that the plaintiff must prove actual malice, is not a document privileged from pro- duction on the ground of public policy. (Blake v. Pilfold, 1 Moo. & Rob. 198.) If the original libel has been lost or destroyed, secondary evi- dence may of course be given of it (Rainy v. Bravo, L. R. 4 P. C. 287 ; 20 W. R. 873 ; Gathercole v. Miall, 45 M. & W. 319), except where the libel is contained in an official document, which is privileged from production on the ground of public policy, in which case the same public policy requires that no secondary evidence of its contents shall be given. (Home v. Bentinck, 2 Brod. & B. 130; Anderson v. Hamilton, ib. 156, n. ; Stace v. Griffith, L. R. 2 P. C. 428 ; 6 Moore, P. C. C. N. S. 18 ; 20 L. T. 197 ; Hawkins v. Lord Roheby (Ex. Ch.), L. R. 8 Q. B. 255.) The plaintiff is also entitled to give secondary evidence of the contents of the libel, if the original is in the defendant's possession and is not produced, after notice to produce it has been [* 564] served on the defendant's solicitor a reasonable time before the trial. (R. v. Boucher, 1 F. & F. 486.) So also where the libel is in the possession of some one beyond the jurisdiction of the court, who refuses to produce it, on request, although informed of the purpose for which it is required. (Boyle v. Wiseman, 10 Ex. 647; 24 L. J. Ex. 160; Newton v. Chaplin, 10 C. B. 56 ; R. v. Llanfaethly, 2 E. & B. 940 ; 23 L. J. M. C. 33 ; R. v. Aickles, 1 Leach, 330.) As to copies' in the posses- sion of the defendant's solicitor, see Paris v. -Levy, 2 F. & F. 73. Where the libel is written or placarded on a wall, so that it cannot conveniently be brought into court, secondary evidence may be given of its contents. (Per Lord Abinger in Mortimer v. JiP Callan, 6 M. & W. at p. 68 ; Bruce v. Nicolopulo, 11 Ex. at p. 133 ; 24 L. J. Ex. at p. 324.) All questions as to the admissibility of secondary evidence are for the judge, and should be decided by him then and there. {Boyle v. Wiseman, 11 Ex. 360 ; 24 L. J. Ex. 224 ; 25 L. T. (Old S.) 203.) If the words proved differ materially from those set out in the statement of claim, this is a variance which would formerly have been fatal. (Bell v. Byrne, 13 East, 554 ; Tabart v. Tipper, 1 Camp. 350 ; Cartwright v. Wright, 1 D. & Ry. 230 ; Cook v. Stokes and Wife, 1 Moo. & R. 237 ; Rainy v. Bravo, L. R. 4 P. C. 287 ; 20 W. R. 873.) But now the judge has ample power to amend the record, if in his discretion he considers such amend- ment can be made without prejudice to the defendant. (Order XXVIII. rr. 1, 6.) But no amendment will be made, the result of (506) TROOP OF THE SLANDER. 435 which will be to substitute a totally different cause of action for the former one ( C v. Lindsell, 11 J. P. 352), or to render the statement of claim demurrable. (Marlyn v. Williams, 1 11. & N. 817; 26 L. .1. Ex. 117; Caulfield v. Whitooorthj \c> W. \l. 936; 18 L. T. 527.) The defendant is entitled to an adjournment if he really desires to justify the words newly inserted in the stati tnent of claim by such amendment. (Saunders v. Bate, 1 II. & X. 402. And see Foster v. Pointer, 9 C. & P. 718 ; May v. Brown, 3 J \. & C. 11:3 ; Lord Churchill v. Hunt, 2 B. & Aid. 685.) Proof of the speaking of the Slander. In cases of slander, the only way to prove publication is by call- ing those who heard the defendant speak the words. It is not, in strictness, sufficient to prove that the defendant spoke words equivalent to those set out in the statement of claim ( Armituge v. Dunster (1785) 4 Dougl. 291 ; Maitland and others v. Gqldney and another (1802), 2 East, 426.) Thus; where the declaration alleged that the defendant [* 565] stated as a fact that " A. could not pay his laborers," and the evidence was that he had asked a question, "Have you heard A. cannot pay his laborers?" the plaintiff was nonsuited. (Barnes v. Ilolloway (1799), 8 T. R. 150.) But now, if the words proved convey practically the same meaning as the words laid, the variance will be held immaterial, or else the judge will amend. (Ban caster v. Ilewson, 2 Man. & Ry. 170 ; Sydenham v. Man (1617), Cro. Jac. 407 ; Orpwood v. Barkes, vel Parkes, 4 Bing. 261 ; 12 Moore, 492 ; Smith v. Knowelden, 2 M. & Gr. 561.) It was never necessary, however, to prove all the words laid m the declaration, if such of them as are proved are intelligible and actionable by themselves. (Per Lawrence, J., 2 East, 434.) If the witness committed the words to writing shortly after the defendant uttered them, he may refer to such writing to refresh his memory ; but it must be the original memorandum that is referred to, not a fair copy. (Burton v. Plummet, 2 A. & E. 343.) And so where the action is for procuring a libel to be published by making a verbal statement to the reporter of a newspaper, who took it down in writing, the original writing taken down by the reporter and handed by him to the editor must be produced in court ; otherwise it will not appear that it was the same or substantially the same as the libel which appeared in the newspaper. (Adams v. Kelly, Ry. & Moo. 157.) Where the governor of a British colony spoke to the Attorney- General in his official capacity words defamatory of the plaintiff, and the Attorney-General was called as a witness in an action against the governor, it was held that he was not bound to disclose what the governor had said to him. ( Wyatt v. Gore, Holt," N. P. 299.) If the words spoken be in a foreign language, some one must be called to prove their meaning ; and it must be further proved that those who heard them understood that language ; else there is no publication. But this will be presumed where the words are spoken in the vernacular of the locality. (Ante, p. 109.) * (507) 436 PRACTICE AND EVIDENCE. Evidence as to the Innuendo. Whenever the words used are not well-known and perfectly intel- ligible English, but are foreign, local, technical, provincial, or obsolete expressions, parol evidence is admissible to explain their meaning, provided such meaning has been properly alleged in the statement of claim by an innuendo. The rule is the same where words which have a meaning in ordinary English are yet, in the particular instance [*566] before the court, clearly used not in that ordinary meaning, but in some peculiar sense ; as in the case of many slang expressions. But where the words are well-known and perfectly intelligible English, evidence cannot be given to explain that meaning away, unless it is first in some way shown that that meaning is for once inapplicable. This may appear from the words themselves : to give them their ordinary English meaning may make nonsense of them. But if with their ordinary meaning the words are perfectly good sense as they stand, facts must be given in evidence to show that they may have conveyed a special mean- ing on this particular occasion. After that has been done, a by- stander may be asked, "What did you understand by the expression used ?" But without such a foundation being laid, the question is not admissible. (Daines v. Hartley, 3 Exch. 200 ; 18 L. J. Ex. 81; 12 Jur. 1093 ; Burnett v. Allen, 3 H. & N. 376 ; 27 L. J. Ex. 415 ; Humphreys v. Miller, 4 C. & P. 7 ; -Duke of Brunswick v. llarmer, 3 C. & K. 10.) And if it be put and answered, the answer is not evidence ; the jury must not act on it. (Simmons v. Mitchell, 6 App. Cas. 156 ; 50 L. J. P. C. 11 ; 29 W. R. 401 ; 43 L. T. 710.) And this is so, whether the word can be found in the last edition of the English dictionary or not. (Homer v. Taunton, 5 H. & N. 661.) Figurative or allegorical terms of a defamatory character, if of well-known import, need no evidence to explain their meaning ; e.r/. words imputing to a person the qualities of the " frozen snake" in the fable. (Hoare v. Silverlock, 12 Q. B. 624 ; 17 L. J. Q. B. 306.) Nor do historical allusions or comparisons to odious, notori- ous or disreputable persons : thus, wdiere the conduct of the plain- tiff, in a case which he conducted as attorney for one of the parties* was compared to that of " Messrs. Quirk, Gammon and Snap," the novel "Ten Thousand a Year" was put in and taken as read. ( Woodgate v. Bidout, 4 F. & F. 202.) Wherever the w r ords sued on are susceptible both of a harmless and an injurious meaning, it will be a question for the jury to de- cide which meaning was in fact conveyed to the hearers or readers at the time of publication. It will be of no avail for the defendant to urge (except, perhaps, in mitigation of damages) that he intended the words to convey the innocent meaning, if the jury are satisfied that ordinary bystanders or readers would certainly have under- stood them in the other sense. (Fisher v. Clement, 10 B. & C. 472.) Every man must be taken to have intended the natural and proba- ble consequences of his act. The plaintiff may give evidence of surrounding circumstances from which a defamatory meaning can be inferred ; he may call witnesses to state how they understood ^508) INNUKMX). 437 tlic libel ; though the jury [*567] arc nol bound to adopl the opin- ions of such witnesses. (Broomev. Gosden, I C. B. 732.) Also in this case evidence of subsequent words of the same imporl may be given, so as to explain and point the libel charged. (Peara v. Ornsby, I M. & Rob. 455 ; ante, p. 98.) The plaintiff may also show thai the words, though apparently commendatory, were spoken ironically. If, however, the words are in their primary sense nol actionable, and there is no evidence of any facts known both to the writer and 1 he person to whom he wrote, which could reasonably induce the latter to put upon them any actionable secondary meaning, the judge should stop the case. (Capital and Counties Haul: v. Henty and Sons, (C. A.) 5 C. P. 1). 514 ; 49 L. ^. C. I\ 830 ; 28 W. R. 851 ; 43 L. 051 ; (II. L.) 7 App. (as. 71! ; 52 L. .1. (.>. 15. 232 ; 31 W. R. 157 ; 47 L. T. 602 ; 47 J. 1\ 214 ; ante , p. 115 ; Jit/el v. Tatnell, 29 W. R. 172 ; 43 L. T. 507.) So, too, if the words are not reasonably susceptible of the defamatory meaning put upon them by the innuendo, the judge should nonsuit the plaintiff. ( Mul- ligan v. Cole and others, L. R. 10 Q. B. 549 ; 44 L. .J. (). 1 1. 153 ; 33 L. T. 12 ; ante, p. 117.) If, however, in his opinion the words are capable of the meaning ascribed to them by the innuendo, and there is any evidence to go to the jury that they were used with that meaning, then it will be for the jury 'to decide whether in fact the words were understood in that sense by those who heard or read them. Proof that the Words refer to the Plaintiff. If the libel does not name the plaintiff, there maybe need of some evidence to show who w T as meant. The plaintiff may give evidence of all "surrounding circumstances ;" i. e., the cause and occasion of publication, later statements made by the defendant, and other extraneous facts which will explain and point the allusion. The plaintiff may also call at the trial his friends or others ac- quainted with the circumstances, to state that on reading the libel they at once concluded that it was aimed at the plaintiff. (Broome v. 'Gosden, 1 C. B. 728 ; R. v. Barnard, Ex parte Lord P. Coma; 43 J. R 127 ; ante, p. 133.) It is not necessary that all the world should understand the libel ; it is sufficient if those who know the plaintiff can make out that he is the person meant. (Bourke v. Warren, 2 C. & P. 310.) [In Pastwood v. Holmes (1 F. & F. 349), Willes, J., w^ould not allow a witness to be asked, " To whom did you understand the words to apply ?" on the ground that that was the question for the jury. But the circumstances [* 568] of that case were peculiar.] Evidence that the plaintiff was jeered at at a public meeting is admissible to show that his neighbors under- stood the libel as referring to him. ( Cook v. VSard, 4 M. & P. 99; 6 Bing 412.) So, in Da Bost v. Beresford (2 Camp. 511), Lord Ellenborough held that the declarations made by spectators, _ while they were looking at a libellous caricature, were admissible in evi- dence to show T whom the figures were intended to represent. <509) 438 PRACTICE AND EVIDENCE. Proof that the Words were spoken of the Plaintiff in the way of Jus Office, Profession or Trade. It is not enough for the plaintiff to prove his special character, and that the words refer to himself ; he must further prove that the words refer to himself in that special character, if they be not other- wise actionable. It is a question for the jury whether the words, were spoken of the plaintiff in the way of his office, profession, or trade. It is by no means necessary that the defendant should ex- pressly name the plaintiff's office or trade at the time he spoke, if his words must necessarily affect the plaintiff's credit and reputa- tion therein. (Jones v. Littler, 7 M. & W. 423 ; 10 L. J. Ex. 171. See ante, p. 125.) But often words may be spoken of a professional man which, though defamatory, in no way affect his profession, e. y., an imputation that an attorney had been horsewhipped off the course at Doncaster (Doyley v. Roberts, 3 Bing. N. C. 835 ; 5 Scott, 40 ; 3 Hodges, 154 ; ante, p. 77), or that a physician had committed adultery. (Ayre v. Craven, 2 A. & E. 2 ; 4 N. & M. 220 ; ante, p. 78. See further, ante, pp. 67 — 71.) But any impu- tation on the solvency of a trader, any suggestion that he had been bankrupt years ago, is clearly a reflection on him in the way of his trade. (Ante, p. 80.) Evidence of Malice. The judge must decide whether the occasion is or is not privi- leged, and also whether such privilege is absolute or qualified. If he decide that the occasion was one of absolute privilege, the defendant is entitled to judgment, however maliciously and treacherously he may have acted. If, however, the privilege was only qualified, the onus lies on the plaintiff of proving actual malice. {Clark v. Molyneux, (C. A.) 3 Q. B. D. 237 ; 47 L. J. Q. B. 230 ; 26 W R. 104 ; 37 L. T. 694.) This he may do either by extrinsic evidence of personal ill-feeling (ante, pp. 275, 281), or by intrinsic evidence, such as the exaggerated language of the libel, the mode and extent of [*569] publication, and other matters in excess of the privilege. (Ante, pp. 281 — 290.) Any other words written or spoken by the defen- dant of the plaintiff, and indeed all previous transactions or com- munications between the parties, are evidence on this issue. The defendant often makes the mistake of cross-examining the plaintiff severely on such previous matters, with the view no doubt of showing that in all these transactions the plaintiff was solely to blame. The jury, as a rule, Avill hold both parties to a silly quarrel equally blameworthy. But even if they adopt the defendant's view that all the provocation was given by the plaintiff, this will only tell against the defendant. For such provocation must produce a feeling of resentment, or at least of injured innocence, in the defendant's mind 5 and if, under the influence, of such feeling, he writes or speaks a falsehood of his late antagonist, such falsehood will prob- ably be deemed spiteful and malicious. (510; EVIDENCE OF DAMAGE. 439 Placing a plea of justification on the record is no evidence of malice. ( Wilson v. Robinson, 7 Q. B. 68; 14 L. J. Q. B. 196 ; 9 Jur. 726 ; Caulfield v. WhUworth, 16 W. R. 9:36; 18 L. T. .527.) But persisting in it may be, if there be any other circumstance in the case suggesting malice, but not otherwise. ( Warwickw. Eoulkes, 12 M. & W. 508.) ('are must be taken in citing Simpson v. Robin- son (12 Q. B. 511), to refer to the judgments of the court ; us the headnote is declared by Willes, J., in Caulfield v. Whitworth, to be misleading - . Proof that the defendant at the time of publication knew that what lie was saying or writing was false, i^ proof positive of malice. Proof that in fact the words are untrue is no evidence of malice {ante p. 272) ; the falsity of the words is indeed always presumed in the plaintiff's favour. (Browne v. Croome, 2 Stark. 297 ; Cornwall v. Richardson, R. & M. 305 ; Guy v. Gregory, 9 C. & P. 584 ; Brine v. Bazalgette, 3 Exch. 692 ; 18 L. J. Ex. ":;4s. There must have been some other facts suggesting malice in Palmer v. Ilummersto)) (1 Cababe & Ellis, 36) ; or else Day, J., thought it safer to leave the question to the jury and so put an end to the litigation. Hence the plaintiff cannot, as a rule, give any evidence of his own good character. (Ante, p. 310.) But where the parties have been living in the same house for a long time, as master and servant, and the master must have known the true character of his servant, and yet has given a false one, there the plaintiff is allowed to give general evidence of his good character, and to call other servants of the defendant to show that no complaints of misconduct were made against the plaintiff whilst he was in defen- dant's service ; for such evidence tends to show that defendant, at the time he gave plaintiff a bad character, knew that what he was writing [*570] was untrue, which would be proof positive of malice. (Foun- tain v. Boodle, 3 Q. B, 5 ; 2 G. & D. 455 ; Rogers v. Sir Gervas Clifton, 3 B. & P. 587, ante, p. 203.) But in any other case, if no justification be pleaded, and yet the plaintiff's counsel gives evidence of the falsity of the libel, this will let in evidence on the other side of the truth of the statement. (Per Lord Ellenborough in Brown v. Croome, 2 Stark. 298 299.) Rebutting Justification. The plaintiff may object at the trial that a plea of justification is insufficient, whether such objection has been taken on the pleadings or no. Edmonds v. Waller and another (3 Stark. 7) is now bad law. The plaintiff's counsel may, if he chooses, in the first instance rebut the justification ; or he may leave such proof till the reply, when he will know the strength of defendant's case, but lie cannot, in the absence of special circumstances, call some evidence to rebut the justification in the first instance, and more afterwards, thus dividing his proof. (Browne v. Murray, R. & M. 254.) Evidence of Damage. The plaintiff need give no evidence of any actual damage where the words are actionable per se • he can nevertheless recover sub- 1511) 440 PRACTICE AND EVIDENCE. stantial damages. {Tripp v. Thomas, 3 B. & C. 427 ; 1 C. & P. 477 ; In (/ram v. Lawson, Bing. N. C. 212.) But if the plaintiff has suffered any special damage, this should he pleaded and proved. It cannot he proved unless it has been pleaded. {liluck v. Lover lug, 1 Times L. R. 497.) As to what constitutes a special damage, see ante, pp. 297 — 5309. As to .what damage is too remote, see ante, pp. 325 — 336. Where the words are not actionahle per sc, the plaintiff cannot prove a general loss of custom ; he must call individual customers and friends to state why they have ceased to deal at his shop, or to entertain him. {Ante, p. 303.) Such witnesses cannot, however, he called unless their names have been set out in the statement of claim or the particulars. It must also he proved that they heard of the charge against the plaintiff from the defendant, and from no one else. It will not he sufficient to prove that they heard a rumour, and that the defendant set such rumour afloat. (See ante, p. 330 ; Dixon v. Smith, 5 II. & N. 450 ; 29 L. J. Ex. 125 ; JJateman v. Lyall, 7 C. B. N. S. 638.) The plaintiff may also call evidence in aggravation of damages, as to which see ante, pp. 309 — 311. [*571] Nonsuit. Strictly there is no longer such a thing as a nonsuit. Ord. XLI. r. 6 of 1875 has not been re-enacted; and by Ord. XXXVI. r. 39, the judge must direct that judgment be entered, if at all, for one party or the other. Still the word is a convenient one to denote the act of the judge when he withdraws the case from the jury and directs judgment to be entered for the defendant without (or in spite of) their verdict. It is usually at the close of plaintiff's case that the defendant's counsel submits to the judge that there is no case for him to answer. Some judges, however, decline to consider the question at this stage of the action, unless defendant's counsel at once announces that he intends to call no witnesses. The judge should direct judgment to be entered for the defen- dant : — (l.) If there is no evidence that the defendant published the words at all or (if the Statute of Limitations be pleaded) that he did so within the period prescribed. (2.) If there is no evidence that the words refer to the plaintiff. (3.) If the words proved are not actionable per se, and there is no evidence of any special damage. (4.) If the words are actionable by reason only of their being spoken of the plaintiff in the way of his office, profession, or trade, and there is no evidence that the words were so spoken, or that the plaintiff held such office or exercised such profession or trade at the time of publication. (5.) If the words are not actionable in their natural and primary signification, and there is no innuendo ; or if the only innuendo puts upon the words a meaning that they cannot possibly bear. If, how- (512) EVIDENCE FOR THE DEFENDANT. 441 ever, it is reasonably conceivable that those addressed might by reason of any tads known to them have put upon the words the secondary meaning ascribed to them by the innuendo, then it will be a question for the jury in which meaning the words were in fact understood. Whenever the words, though primarily not actionable, are yet reasonably susceptible of a defamatory meaning, the judge should not stop the case; if he does so, the Divisional Court will order a new trial. {Hurt and another v. Wall, 2 C. P. IX 146; 46 L. J. C. P. 227; 25 W. R. 373.) "It, is only when the judge is satisfied that the publication cannot he a libel, and that, if it is found by the jury to be such, their verdict will be set, aside, that It is justified in withdrawing the question from their cognizance." {Per Kelly, C. B., L. R. 4 Exch. at p. 288.) Where the words of the [*572] libel are ambiguous, allegorical^ or in any way equivocal, and the jury have found that they were meant and used in a defamatory sense, the court will not set aside their verdict, unless it can be clearly shown that, on reading the whole passage, there is no possible ground for the construction put upon it by the jury. ( abare v. Silrerlock, 12 Q. B. 624; 17 L. J. Q. B. 306 ; Fray v. Fray, 17 C. B. K S. 603; 34 L. J. C. P. 45 ; 10 Jur. X. S. 1153.) But where the words are not reasonably capable of any defamatory meaning, there the judge will be right in directing a nonsuit. {Huntx. Goodlake, 43 L. J. C. P. 54; 29 L. T. 472; Mulligan v. Cole and others, L. R. 10 Q. B. 549 ; 44 L. J. Q. B. 153 ; 33 L. T. 12 ; ante, p. 117.) (6.) If the occasion of publication was one of absolute privilege. (7.) If the occasion is clearly or admittedly one of qualified privi- lege, and there is no evidence, or not more than a scintilla of evi- dence, of malice to go to the jury. If the evidence adduced to prove malice is equally consistent with either the existence or the non- existence of malice, the judge should stop the case ; for there is nothing to rebut the presumption which the privileged occasion has raised in the defendant's favour. {Somerville v. Hawkins, 10 C. B. 583 ; 20 L. J. C. P. 131 ; 15 Jur. 450 ; Harris v. Thompson, 13 C. B. 333 ; Taylor v. Hawkins, 16 Q. B. 308 ; 20 L. J. Q. B. 313; 15 Jur. 746.) (8.) Where, however, the question of privilege involves matters of fact which are disputed, it will be for the jury to find the facts, and for the judge subsequently to decide whether on the facts so found the occasion is privileged. {Beatso/i v. Skene, 5 II. & N". 838; 29 L. J. Ex. 430; 6 Jur. N. S. 780; 2 L. T. 378.) And the judge is not bound to rule whether the occasion is privileged or not till after the defendant has called all his witnesses. {Per Cockburn, C. J., in Hancock v. Case, 2 F. & F. 710.) The judge at the trial has full power to amend any defect or error in any pleading or proceeding on such terms as may seem just (Ord. XXVIII. rr. 1, 6, 12), and to add or strike out, or substitute, a plaintiff or defendant. (Ord. XVI. r. 12.) Evidence for the Defendant. The defendant, as we have seen, is entitled to have the whole libel read, or the whole of the conversation, in which the slander was (513) 442 PRACTICE AND EVIDENCE. uttered, detailed in evidence. If the alleged libel refers to any other document, the defendant is also entitled to have; the document read, as part of the plaintiff's case. ( Weaver v. Lloyd, I C. & P, 296 ; [*573] Thornton v. /Stephen, 2 M. & Rob. 45 ; Hedley v. Barlow and another, 4 F. & F. 227.) So where the action is brought for a criticism on the plaintiff's book, no imputation being cast on him personally, it was held that the plaintiff ought to put in the book criticised as part of his own case. (Strauss v. Francis, 4 F. & F. 939, 1107".) This may save the defendant from the necessity of giving any evidence. But where a paragraph in a subsequent number of a newspaper is given in evidence by the plaintiff to show malice, the rest of the newspaper is no part of plaintiff's case, unless it refers to the special paragraph put in. The defendant is, there- fore, not entitled to have other passages in that newspaper read. (Darby v. Onseley, 1 II. & K ; 25 L. J. Ex. 227.) The defendant's counsel often prefers not to call any witnesses, so as to have the last word with the jury. He relies instead on the cross-examination of the plaintiff's witnesses. These may be cross- examined not only as to the facts of the case, but also " to credit ; " that is, as to matters not material to the issue, with a view of shak- ing their whole testimony. But in order to prevent the case from thus branching out into all manner of irrelevant issues, it is wisely provided that on such matters the defendant must take the witness's answer : he cannot call any evidence to contradict it. There is one exception. By sect. 24 of the Common Law Procedure Act, 1854, if a witness in any cause be questioned as to whether he has been convicted of any felony or misdemeanour, and if he either denies the fact, or refuses to answer, the opposite party may prove such conviction, however irrelevant the fact of such conviction may be to the matter in issue in the cause. ( Wa r d v. Sinfiehl, 49 L. J. C. P. 696 ; 43 L. T. 253.) The right method of proving a conviction at the Assizes or Quarter Sessions, either for this purpose, or as evidence under a plea of justification, is by a certificate under the Common Law Procedure Act, 1854, s. 25, containing the substance and effect of the indictment and conviction, but omitting the formal parts. Both this section, however, and sect. 6 of 28 & 29 Vict. c. 18, are confined to convictions for felony or misdemeanour on indict- ment. Hence, where the conviction was at petty sessions only, it was decided, in Hartley v. Hlndmarsh (L. R. 1 C. P. 553 ; 35 L. J. M. C. 255 ; 12 Jur. N. S. 502 ; 14 W. R. 862 ; 13 L. T. 795), that either the record itself must be produced, or an examined copy of it. This involves the trouble and expense of having the record duly made up for the purpose. (Per Byles, J., L. R. 1 C. P. at p. 556.) But since that decision, the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), has become law ; and though the rest of this act applies [* 574] entirely to criminal proceedings, yet sect. 18 contains the words " in any legal proceeding whatever." Hence certificates under that section are now received without objection in civil as well as criminal proceedings. The defendant must be careful, however, not to increase, by such cross-examination, the amount of damages that may be given against (514) EVIDENCE FOR THE DEFENDANT. 443 him. Thus, where the libel consisted of comments in a newspaper on a criminal trial, in which the plaintiff was acquitted, and the defendant's counsel put to the plaintiff a scries of questions tending to show that ho really had been guilty of the crime with which he was charged, such a course of cross-examination was held a serious aggravation of the libel. (Risk Allah Bey v. Whitehurst, 18 L. T. 615.) Note, however, that Order XXXVI. r. :'>7, in no way restricts cross-examination ; it is confined to evidence called by the defendant in chief. Where the words arc actionable only because they were spoken of the plaintiff in the way of his trade, the defendant may show that such trade is illegal {limit v. Bell, 1 Bing. l), if he has pleaded such defence ; and it is no objection to such evidence that it also indirectly proves the truth of the defendant's words. {Manning v. Clement, 7 Bing. 362, 368 ; 5 M. & P. 211.) Where it is not alleged that the defendant is the author of the libel, he may give evidence to show that he published it innocently without any knowledge of its contents, as where a porter delivered a sealed packet. (Bay v. Bream, 2 M. & Rob. 54.) But in most cases such evidence will only tend to mitigate the damages ; it will not be a defence to the action. (See ante, pp. 161, 433.) The defendant may also give evidence of antecedent conversa- tions and transactions or other circumstances well known to the bystanders, which show that the words were not used in their ordinary signification. Thus, they may have been uttered in joke ; or the preceding part of the conversation may limit or qualify the words sued on. But the defendant cannot give in evidence some particular transaction which he had in his mind at the time he spoke, but to which he did not expressly refer, and which was unknown to the person addressed. (Ilankinson v. Bilby, 16 M. & W. 442 ; 2 C. & K. 440 ; Martin v. Loei, 2 F. & F. 654*; ante, pp. 106—108.) For the question which the jury have to determine is not "What did the defendant intend ?" but "What would a reasonable person have understood from the language used ?" So, too, where a libel is unambiguous in itself, and does not refer to any other doc- ument, the defendant cannot use any other [*575] document for the purpose of explaining awav the natural meaning of the libel. The defendant's counsel may also urge that the occasion of publi- cation was privileged. (See ante, c. VIII. pp. 181 — 268.) If the facts necessary to raise this defence are not already in evidence, he must call witnesses to prove them. Thus, it is of ten necessary to put the defendant himself in the box to state the facts as they were presented to him at the date of publication, the information which he received and on which he acted, and all surrounding circumstances, lb' will also state that he acted bond fide, and under a sense of duty. But there is danger in calling the defendant in such a case : he will be severely cross-examined, and may let slip some observation which will be seized upon as evidence of malice. It is better, if possible by denying the fact of publication, to compel the plaintiff to call those to whom the defendant wrote or spoke, and to elicit from them, in (515) 444 PBACTICE AND EVIDENCE. cross-examination, circumstances which show that the occasion was privileged. Statements made to the defendant behind the plaintiff's back, and acts to which he was no party, are admissible in evidence on this issue to show the state of the defendant's mind at the moment when he spoke or wrote the words. ( Cockayne v. Hodgkisson, 5 C. & P. 543.) So where the defence is that the libel complained of isa bond fide comment on certain facts, the defendant is clearly entitled to prove those facts, unless the judge rules that they are not of public inter- est. The ruling of Patterson, J., in R. v. Brigstock (6 C. & P. J 84), would not be followed in these days. Of well-known historical facts the court will of course take judicial notice ; all other facts must be proved strictly, and not by hearsay, unless plaintiff will admit them. But if a publication purports to be a report of a trial, it will, it seems, be assumed in favour of the defendant that such a trial really took place, unless the plaintiff adduces some evidence to the contrary. " We cannot suppose, without proof, that the occurrence of such a trial was mere invention, or that newsapers publish reports of merely imaginary trials." [Per Alderson, B., inChalmers v. Payne, 5 Tyrw. 769 ; 2 C. M. & R. 159 ; 1 Gale, 69.) The defendant may also prove a justification. The attempt, if unsuccessful, will aggravate the damages. Strict proof must be given that the whole charge made is true in every particular. Books are no evidence of the facts stated in them. (Darby v. Ouseley, 1 H. & K 1 ; 25 L. J. Ex. 227 ; 2 Jur. N". S. 497 ; Collier v. Simpson, 5 C & P. 73.) Sometimes a libel contains two or more distinct and severable charges against the plaintiff ; if so, it will tend in mitiga- [*576j tion if the defendant can prove any one of such charges true (see ante, p. 176) ; but all of them must be strictly proved to entitle him to a verdict. Where, however, a libel conveys a general charge, and several specific instances are given (as they must be) in the plea or in the particulars as evidence of such general charge, then it is enough for the defendant to prove any two or three of these specific instances which will justify the libel ; he is not bound to prove the whole of* his particulars. (Per Cockburn, C. J., in Peg. ]vos. Lam- bri v. Labouchere, 14 Cox, C. C. 419.) If the charge made against the plaintiff is that he was convicted of an offence, then such convic- tion may be proved in the manner stated, ante, p. 573. (See Alex- ander v. North Eastern Railway Co., 6 B. & S. 340 ; 34 L. J. Q. B. 152; 13 W. Pv. 651.) Though where the libel consists of an incorrect statement of the plaintiff's conviction by a magistrate, the plaintiff may, with a view to the assessment of damages, enter into all the circumstances which led to the conviction, although such evi- dence tends to show that the conviction was erroneous. ( Gwynn v. South, Eastern Railway Co., 18 L. T. 738). If, however, the impu- tation is that the plaintiff has committed a crime, then the charge must be proved as strictly as on an indictment for the same offence. And here, the fact that the plaintiff had been previously tried and acquitted, or convicted, is irrelevant ; and the record of the crim- inal trial is not admissible in evidence either way, for the parties are (516) EVIDENCE FOR THE DEFENDANT. 445 not the same. {.Justice v. Gosling and others, 12 ('. B. 39 ; 21 L. J. ('. P. 94 ; England v. Bourke, 3 Esp. 80.) Where no justification is pleaded, the defendanl can give n<> evi- dence of the truth of his words, not even in mitigation of damages. (/Smith v. Richardson, Willes, 20.) But evidence admissible and pertinent under another issue cannot be excluded merely because it happens incidentally to prove the truth of the libel. {Manning v. Clement, 7 Bing. 302, 368 ; 5 M. P. 21 1) Thus, if the defendant lias pleaded privilege, he may show that he reasonably a,n&bondfide believed in the truth of the charge he made, and it is no objection that the grounds of his belief are so forcible as to convince every reasonable man of the plaintiff's guilt. (Huson v. Dale, 19 Mich. 17.) Where the plaintiff, in order to prove malice, has given in evidence other words of the defendant not set out on the rec- ord, the defendant may prove the truth of such other words, for he had no opportunity of pleading a justification. (Stuart v. Lov- ell, 2 Stark. 93 ; Warne v. Chad-well, 2 Stark. 457 ; Collision v. Loder, B. K P. 10.) If the present defendant is liable, the fact that some one else is also liable is, of course, no defence. The plaintiff may at his option sue one or all in the same or in different actions. And the fact that [* 577] such other actions are pending is not admissible in evi- dence. (Creevy v. Carr, 7 C. & P. 64; ante, p. 310.) Thus, if an author be sued for a libel he has composed, it is no defence that the publisher has been already sued, and heavy damages recovered against him in another action. (Frescoe v. May, 2 F. & F. 123 ; Harrison v. Pearce, 1 F. & F. 507 ; 32 L. T. (Old S.) 298 ; the headnote to the latter case does not state the full force of the ruling of Martin, B.) So, too, that others have previously published the same charges against the plaintiff, and have not been sued, is no justification for the defendant's republication. Still less is it any evidence of the truth of such charges. (P. v. Newman, 1 E. & I>. 268 ; 22 L. J. Q. B. 150 ; 3 C. & K. 252 ; Dears. C. C. 85 ; 17 Jur. 017.) It is wholly immaterial that plaintiff omitted to con- tradict or complain of such previous publications. (II. v. Holt, 5 T. R. 430 ; Pankhurst v. Hamilton, 2 Times L. R. 682 ; and per Maule, J., in Ingram v. Pawson, 9 C & P. 333.) If, however, the libel purports on the face of it to be derived from a certain news- paper, the defendant may prove in mitigation of damages that a paragraph to the same effect had appeared in that newspaper. (Wyatt v. Gore, 1 Holt, N. P. 303 ; see also ante, p. 315.) The defendant may not give evidence that there w.°-s a rumour current to the same effect as the words he spol the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before the trial lie furnishes particulars to the plaintiff of the matters as to which he intends to give evidence." This rule in no way alters the law laid down in Scott v. Sampson (8 Q. B. D. 491 ; 51 L. J. Q. B. 380 ; 30 W. R. 541 ; 40 L. T. 412 ; 46 J. P. 408), save oidy that it relieves the defendant from the necessity of pleading such matters in his defence. For the form of the notice under the rule, see Precedent, No. 68, post, p. 656. I* M8 1 Withdrawing a Juror. Actions of defamation are often compromised before the judge comes to sum up the evidence. A juror is often withdrawn, some- times at the suggestion of the judge. This means that neither party cares for the case to proceed. If no special terms are agreed on, the effect of withdrawing a juror is that the action is at an end, that no fresh action can be brought on the same libel or slander, and that each party pays his own costs. (See /Strauss v. Francis, 4 F. & F. 939, 1107 ; 15 L. T. 6V4 ; Moscati v.Bawson, 7 C. & P. 35, note ; Norbnm v. llilliam, L. R 5 C. P. 129 ; 39 L. J. C. P. 183 ; 18 W. R/602 ; 22 L. T. 67.) If any other terms be agreed on, they should be indorsed on counsel's briefs, and each indorsement signed by the leading counsel on both sides. Counsel has full authority to make such a compromise, unless expressly forbidden to do so by the client at the time. (Strauss v. Francis, L. R. 1 Q. B. 379 ;'35 L. J. Q. B. 133 ; 12 Jur. N. S. 486 ; 14 W. R 634 ; 14 L. T. 326 ; Davis v. Davis, 13 Oh. D. 861 ; 28 W. R 345.) The terms of such a compromise will be strictly enforced, if necessary, by an order of the court. (Riley v. Byrne, 2 B. & Ad. 779 ; Tar- drew v. Brook, 5 B. & Ad. 880.) If after such a compromise the defendant reiterates the libel, the judge may give leave for the action to proceed. (Thomas v. Exeter Flying Post Co., 18 Q. B. D. 822 ; 56 L. J. Q. B. 313 ; 56 L. T. 361.) Summing -up. The judge now sums up the facts of the case to the jury, and directs them as to the law. (See sect. 22 of Judicature Act, 1875.) He is not bound to state to the jury, as matter of law, whether the publication complained of be a libel or not. (Baylis v. Baiorence, 11 A. & E 920 ; Ilearne v. Stowell, 12 A. & E. 719 ; 11 L. J. Q. B. 25 ; 4 P. & D. 696,) The proper course is for him to define what is a libel in point of law, and to leave it to the jury to say, as men of ordinary intelligence, whether the publication in question falls within that definition. (Parmiter v. Coupland and another, 6 M. & W. 105 ; approved in Cox v. Bee, L. R. 4 Ex. 284 ; 38 L. J. Ex. 219 ; Grant v. Yates, 2 Times L. R. 368.) The jury are bound to take the judge's definition of a libel, and decide in accordance (518) costs. 447 therewith {Levi v. Milne, 4 Bing. L95 ; 12 Moore, 418) ; though the question for them, " Libel or no Libel," is not precisely the same as " What is the legal definition of an actionable libel ?" (Per Barry, J., in Stannm v. tinlcvy, It. R. 8C. L. 264.) In a proper case the jury [* 57.9] should also he reminded that the question for them is not "did the defendant intend to injure the plaintiff?" but, " Has he in fact injured the plaintiff's reputation ?" Where other libels, &c., have been given in evidence to prove malice, the judge should caution the jury not to give any damages in respect of them. (Pearson v. Lemaitre, 5 M. & Gr. 700.) But the omission of the judge to give such caution is not a misdirection. (Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J. Ex. 229.) Verdict. The jury now consider their verdict. They should look at the whole of the publication to see whether it is calculated to injure the plaintiff's character, not study detached and isolated sentences. The conclusion may modify the commencement, and if so, " the bane and antidote must be taken together." (Per Alderson, B., in Chalmers v. Payne, 2 C. M. & R. 159 ; see also Hunt v. Algar and others, 6 C. &. P. 245 ; P. v. Lambert and Perry, 2 Camp. 39S.) Where the words are actionable per se, the amount of damages is entirely a matter for the jury. They are not confined to the pecu- niary loss actually sustained by the plaintiff. (Ante, p. 295.) They may consider the' libel itself, the mode and extent of publication, and the malice evinced by the defendant. Also, in an action against a newspaper, they may have regard to the gross negligence shown by the editor in allowing the libel to appear in print. (Smith v. Harrison, 1 F. & F. 565.) The jury must assess the damages once for all, as no fresh action can be brought for any subsequent dam- age. (Fitter v. Veal, 12 Mod. 542 ; B. N. P. 7 ; Grey ory and another v. Williams, l.C. & K. 568 ; ante, pp. 295, 306.) And in assessing the damages, the jury should not regard at all the question of costs.. (Poole v. Whitcomb, 12 C. B. N. S. 770 ; Levi v. Milne, 4 Bing. 915 ; 12 Moore, 418.) But they can not find a verdict for the plaintiff without awarding him some damages. (Per Lord Coleridge, C. J., in Wisdom v. Brown, 1 Times, L. R. 412.) Costs. There is no longer any need to ask for a certificate for the gen- eral costs of the suit. The successful party now gets his costs as of right, unless the judge deprives him of them for good cause. (Order LXV. r. 1, ante, p. 365.) Thus if there be a verdict for the plaintiff for nominal damages only, his counsel should say nothing about costs ; it is the duty" of the defendant's counsel to ask the judge to interfere. But it is otherwise with special costs, such as costs of a special jury, of a commission to take evidence abroad, or of photographic copies of [* 580] the libel : the party who has required" these will have to pay for them unless he obtain an 1 519 1 448 PRACTICE AND EVIDENCE. order for their allowance on taxation before judgment is entered. (Ante, p. 308.) M a married woman having general separate estate fail in' an action of libel or slander, she may be condemned in costs, although her husband was joined with her as a co-plaintiff or a co- defendant. {Newton and wife, v. Boodle and others, 4 C. B. 359 ; 18 L. J. C. P. 73 ; Morris v. Ireeman and wife, 3 P. 1). 65 ; 47 L. J P* D. & A. 7!) ; 27 W. R. 62 ; 39 L. T. 125 ; and see the remarks of Jessel, M. R, in Besant v. Wood, 12 Ch. D. 630 ; 40 L. T. 453 ; and sects, land 13 of the Married Women's Property Act, 1882, ante, pp. 396, 401.) If there is any thought of further proceedings, the unsuccessful party should ask the judge to stay execution ; which the judge will do if he thinks there is any ground for an application to the court. The usual order is that execution be stayed for eight days, and if within that time notice of motion be served and £ brought into court, that execution be further stayed till the motion be disposed of. Proceedings after Judgment. When judgment has been entered after a trial with a jury, the unsuccessful party must either move to Divisional Court for a new trial under Order XXXIX., notice of which must be served within the time stated in rule 4, and entered before the day named for making the motion ; or he may move the Court of Appeal to set aside the judgment on the ground that on the verdict as entered, the judgment directed was wrong (Order XL. r. 4), or upon exceptions annexed to the record, in accordance with sect. 22 of the Judicature Act, 1875. The Divisional Court has full power under Order XL. r. 10, upon an application for a new trial, to set aside the judgment entered and enter final judgment for the party unsuccessful at the trial, if they are of opinion that the findings and the judgment at the trial can not stand, and if they have before them all' the materials necessary for finally determining the ques- tions in dispute. {Hamilton & Co. v. Johnson & Co., (C. A.) 5 Q. B. D. 263 ; 49 L. J. Q. B. 155 ; 28 W. R. 879 ; 41 L. T. 461.) So, too, if the unsuccessful party moves for judgment in the Court of Appeal, and the court is dissatisfied with the findings as to any matter of fact, it may set aside the verdict and judgment entered, and direct that a new trial shall be had (Order LVIII. r. 5), and vice versa {Miller v. Toulmin, (C. A. ) 17 Q. B. D. 603 ; 55 L. J. Q. B. 445 ; 34 W. R. 695). It is only when the appellant contends that the findings of the jnry have not been properly entered, or that, if properly entered, still the [*58l] judgment directed thereon is wrong, that he must move the Court'of Appeal in the first instance. If he complains of the verdict as recorded, then, although the judge directed such ver- dict, he must apply to the Divisional Court within the time allowed for a new trial. [Yetts and another v. Foster, (C. A.) 3 C. P. D. 437 ; 26 W. R. 745 ; 38 L. T. 742.) Thus, if the judge is asked to direct a verdict for the defendant, on the ground that there is no (520 1 NEW TRIAL. 440 evidence to go to the jury in support of the plaintiff's case, then, whether he grants or refuses this application, the only course by which bis decision can be reviewed is by motion for a new trial in the Divisional Court ; for the Court of Appeal, as :i rule, will nol in the first instance review the finding of a jury. {Dames and others, v. Felix and others, (C. A.) 4 Ex. IX 32 ; t8 L. J. Ex. 3 • 21 W. R. 108 ; 30 L. T. 322 ; Etty v. Wilson, (C. A.) 3 Ex. I). 350 ; 47 L. .1. Ex. 664 ; 30 L. T. 83 ; Clarke v. Midland Railway Co., 14 L. T. 131.) Hence, if the unsuccessful party moves both for :i new- trial, and also for judgmenl on the findings as entered, the Divisional Court will hear both motions. (Order XL. r. 5.) Whenever the action is tried with a jury, even though ii was brought in the Chancery Division, any motion for a new trial must be made to a Divisional Court of the Queen's Bench Division. (Order XXXIX. r. 1.) Butin all eases where the trial is by a judge without a jury, any application for a new trial must be made direct to the Court of Appeal (ib.), which may either grant a new trial or order judgment to be entered for the appellant, as justice may require, whatever the terms of the notice of motion may be. (Order LYIIP. r. 4 ; Jones v. Hough, (C. A) 5 Ex. D. 115, 125 ; 49 L. J. C. P. 211 ; 42 L. T. 108 ; Wadded v. Blockcy, (C. A.) 10 Ch. D. 416 ; 27 W. R. 233 ; 40 L. T. 280.) JVeic Trial. An application for a new trial may be made on the ground that the verdict is against the weight of evidence, that the damages are excessive or inadequate, or on the ground of misdirection or surprise. That no notice of trial was given, or that the jury misbehaved, may also be ground for a new trial. But a new trial will not be granted on the ground of misdh-ection or improper admission or rejection of evidence, if the party showing cause against it can satisfy the court that no substantial wrong or miscarriage has been thereby occasioned. (Order XXXIX. r. 6 ; Anthony v. Halstead, 37 L. T. 433 ; Faund v. Wallace, 35 L. T. 361.) And then the court may grant a new trial as to so much of the matter only as the miscarriage affects, without interfering with the decision [*582] upon any other question. (Marsh v. Isaacs, 45 L. J. C. P. 505.) So, too, the court may grant a new trial as against one defendant without granting it as to all ; though notice of motion must be served on all. (Price v. Harris, 10 Bincr. 331 ; Parnell v. O. W. Ry. Co. and Harris, (C. A.) 1 Q. B. D/636 ; 45 L. J. Q. B. 6S7 ; 24 W. R. 720, 909 ; 35 L. T. 605.) The question of libel or no libel is pre-eminently one for a jury ; the court will rarely interfere to set aside a verdict or grant a new trial on the ground that the verdict was against the weight of evi- dence ; especially where the question left to the jury was whether the matter complained of was or was not fair comment on the acts of a public man. (Odr/er v. Mortimer, 28 L. T. 472.) And when- ever the words are fairly susceptible both of an innocent and of an actionable meaning, the finding of the jury is final ; whichever con- 29 lib. & slan. (521) 450 PRACTICK AND EVIDENCE. struction they niay have placed upon the words will be upheld. (Burgess v. Bracher (1724), 8 Mod. 240 ; 2 Ld. Raym. 1366; 1 Stra. 5'.)4 ; Walter v. Beaver, and Naden v. Micocke (1684), 3 Lev. 160 ; SirT. Jones, 235 ; 2 Ventr. 172 ; 3 Salk. 325 ; Grant v. Yates, 2 Times L. R. 368.) "The court never, or. very rarely, grunts new trials in actions for words." (Per Holt, C. J., Anon. (1690), 2 Salk. 644.) A new trial will, however, be granted when the matter complained of is clearly libellous, and there is no question as to the fact of pub- lication, or as to its application to the plaintiff, and yet the jury have perversely found a verdict for the defendant, in spite of the summing-up of the learned judge.* (Levi v. Milne, 4 Bing. 195 ; ante, p. 131 ; Hakewell v. Ingram, 2 C. L. R. 1397.) But unless the jury are manifestly wrong, unless the court can say with cer- tainty that there has been a miscarriage of justice, no new trial will be granted. (Per Tindal, C. J., in Broome v. Gosden, 1 C. B. 731.) If the judge directs the jury that the publication is in law a libel, and the court above hold that it is not, a new trial will be granted on the ground of misdirection. (BTearne v. Stowell, 12 A. & E. 719 ; 11 L. J. Q. B. 25 ; 4 P. & D. 696.) The question whether an apology was or was not sufficient is peculiarly a question for the jury, and, their decision cannot be reviewed or set aside by the court. (Bisk Allah Beg v. Johnstone, 18 L. T. 620.) So on any other issue, a new trial will not be granted on the ground that the verdict was against the weight of evidence if the verdict was one which reasonable men could have found. ( Webster v. Friedeberg, (C. A.) 17 Q. B. D. 736 ; 55 L. J. Q. B. 493 ; 34 W. R. 728 ; 55 L. T. 49, 295.) A new trial will not be granted on the ground that the jury expressed an opinion during the judge's summing-up incon- [*583j sistent with their subsequent verdict (Napier v. Daniel and another, 3 Bing. N. C. 77 ; 3 Scott, 417) ; nor on the ground that either judge or jury prematurely expressed a strong opinion as to the case either way. (Llogd v. Jones, 7 B. & S. 475.) It would be otherwise if a juror before being sworn had expressed a determina- tion to give a verdict in favour of the plaintiff. (Bamadge v. Ryan, 9 Bing. 333 ; 2 Moo. & Sc. 421.) In actions of defamation the court very rarely grants a new trial on the ground that the damages are either too small or too great. "The assessment of damages is peculiarly the province of the jury in an action for libel." (Davis & Sons v. Shepstone, 11 App. Cas. 187 ; 55 L. J. P. C. 51 ; 34 W. R. 722 ; 55 L. T. 1 ; 50 J. P. 709 ; Maskelgne v. Bishop, Times for December 3rd, 1885.) Still there is no inflexible rule on the subject. Scroggs, J., indeed, contended, in Lord Townshend v. Br. Hughes (2 Mod. 150), that the court had no power to order a new trial on the ground that the damages (£4,000) were excessive ; but Atkins, J., was of the contrary opinion, and gave an instance in which the Court of Queen's Bench had done so. The court, however, declined to exercise their power both in that case and in Highmore v. Earl and Countess of Harrington (3 C. B. N. S. 142), where £750 damages were awarded. A new trial 1 522)" NEW TRIAL. 451 will only be granted where the amount of damages is so large as to satisfy the court that the jury acted perversely and with partiality, or grossly misconceived the case on a matter of principle. When- ever there is any evidence of malice, the jury are entitled to give vindictive damages. In a cast' where the plaintiff is entitled to sub- stantial damages, and a verdict is given for the plaintiff, which can- not be impeached except on the ground that the damages are excessive, the court has power to refuse a new trial, on the plaintiff alone, and without the defendant, consenting to the damages being reduced to such an amount as the court would consider not excessive had they been given by the jury. (Belt v. Lawes, (('. A.) li' Q. B. D.-356 ; 53 L. J. Q. B. 249 ;' 32 \V. 11. 607 ; 50 L. T. 441.) So, too, there is no inexorable rule of practice which precludes the court from granting a new trial on account of the smallness of damages. In Kelly v. Sherlock (L. R. 1. Q. B. 686, 697 ; 35 L. J. Q. B.209 ; 12 Jur. N. S. 937), a rule nisi was granted on that ground, though it was discharged on the argument. There seems to be no case reported in which a rule for a new trial has been made absolute on this ground in an action of libel ; but in an action of slander a new trial was granted, where the smallness of the amount recovered (l-4<7.) showed" that the jury had made an improper compromise, [*584] instead of deciding the issues submitted to them. (Falvey v. Stanford, L. R. 10 Q. B. 54 ; 44 L. J. Q. B. 7 ; 23 W. R. 162 ; 31 L. T. 677.) See, however, Forsdike and wife v. Stone (L. R. 3 C. P. 607 ; 37 L. J. C P. 301 ; 16 W. R. 976 ; 18 L. T. 722), and Kendall v. Hayward (5 Bing. N. C. 424), which cases lay down the rule that where there has been no misconduct on the part of the jury, no error in the calculation of figures, and no mistake in law on the part of the judge, a new trial will not be granted. That the jury intended their verdict to carry costs, but have returned an amount insufficient in law to do so, never was a ground for granting a new trial. (Mears v. Griffin, 1 M. & Gr. 796 ; 2 Scott, N. R. 15 ; Kilmore v. Abdoolah, 27 L. J. Ex. 307 ; Forsdike and wife v. Stone, supra.) There is no necessary inconsistency in a jury finding that a libel was written maliciously, and yet awarding only a farthing damages ; and such a verdict will not be set aside. ( Oooke v. Brcgden. cC* Co., 1 Times L. R. 497.) If a new trial be moved for on the ground of surprise, the absence of a material witness at the trial, &c, there must be an affidavit setting out the facts. "Surprise is a matter extrinsic to the record and the judge's notes, and consequently can only be made to appear by affidavit"; and here w T e have no affidavit of surprise, in the sense required by the practice of the court." (Per Maule, J., in Hoare v. Silverlock' (No. 2), (1850), 9 C. B. 22.) The judge's note is decisive as to the evidence taken in the court below ; but either party may read a shorthand-writer's note, to supplement, though not to overrule, the judge's note. (Laming v. Gee, (C. A.) 28 W. R. 217.) If a new trial be ordered, the costs of the first trial are in the discretion of the judge who tries the case the second time ; if he (523) 452 PRACTICE AM) KVlliKN; ::. makes no order, they follow the event. (Creen v. Wright, 2 C. P. I). 354 ; 46 L. J. C. P. 4l'7 ; 25 W. R. 502 ; 36 L. T. 355 ; Field v. •, A. A'y. Co., 3 Ex. I). 261 ; 26 W. R. 817 ; 39 L. T. 80 ; Harris v. Petherick, (('. A.) 4 Q. B. D. Oil ; 48 L. J. Q. B. 521 ; 28 W. R. 11 ; 41 L. T. 24(3.) County Court Proceedings. No action of libel or slander can be commenced in the County Court (9 & 20 Vict. c. 95, s. 58), except by consent (19 & 20 Vict. C. 108, s. 28). Whether the word ".slander" includes "slander of title" may be doubted. In cases of a trifling nature, it may be desirable that both parties should consent to such a course, especially 1*585] if all the witnesses reside in a town where a County Court is held. The parties or their respective solicitors must in that case sign a memorandum of consent, which must be filed ; and thereupon a plaint will be entered and a summons issued, and all further pro- ceedings will be taken as in an ordinary County Court case. (County Court Ord. V. r. 2.) But an action of libel or slander, whatever the amount of damages claimed, may be transferred to the County Court, under sect. 10 of the 30 and 31 Viet. c. 142, ante, p. 526. The defendant may apply to a master at chambers for an order under this section at any stage of the proceedings. If an order for transfer is made, the plaintiff must lodge the writ and other proceedings, and the order remitting the action, with the registrar of the County Court. Until this is done, the action remains in the Superior Court, which consequently has jurisdiction to vary the order. (Welply v. Buhl, (C. A.) 3 Q. B. D. 80, 253 ; 47 L. J. Q. B. 151 ; 26 W. R. 300 ; 38 L. T. 115.) If the plaintiff omit to lodge the order of transfer within a reasonable time after it is made, the~Vlefendant can apply at chambers for an order dismissing the action for want of prosecution. As soon as the necessary docu- ments are filed, the action becomes a County Court cause, as com* pletely as if it had been duly commenced therein. (Moody v. Stew- ard, L. R. 6 Ex. 35 ; 40 L. J". Ex. 25 ; 19 W. R. 161 ; 23 L. T. 465.) The County Court judge is bound to assume jurisdiction ; he cannot inquire into the circumstances under which the order was made. (Blades v. Lawrence, L. R. 9 Q. B. 374 ; 43 L. J. Q. B. 133 ; 22 W. R. 643 ; 30 L. T. 378.) The plaintiff is required by County Court, order XXXIII. r. 1, to lodcre with the registrar not only the writ and the order remitting the action, or a duplicate thereof, and a copy or copies of any affi- davit or affidavits on which the order was made, but also a state- ment of the names and addresses of the several parties to the action, and their solicitors, if any, and a concise statement of the particulars of claim, such as would be required upon entering a plaint, signed by the plaintiff or his solicitor ; and the registrar shall thereupon enter the action for trial, and give notice to the parties of the day appointed for such trial, by post or otherwise, ten clear days before such day, and shall annex" to the notice to the defendant a copy of (521) COUNTY COURT PROCEEDINGS. 153 the particulars. For a form of such statemenl of the plaintiff's par- ticulars, sec Precedent No. 88, post, p. 670. For a form of the Notice of Trial sent to the defendant by the registrar, sec Prece- dent No. 89, jpost, p. 671. The registrar shall forthwith indorse on the order or duplicate thereof the [* 586] date on which the same was lodged, and file the same, and the action shall proceed in all things as if it were an ordinary action in the County Court. (County Court Ord. XXXIII. r. 2.) The defendant upon being served with such a notice of trial shall proceed in all things in the same way as if the action had been brought in the County Court, and the notice so served upon him was an ordinary summons. (County Court Ord. XXXIII. r. '■'■.) Thus he may, five clear days at least before the day named in such notice of trial, pay money into court, either generally or under Lord Campbell's Act, paying a court Ice of is. in the 6 on the amount paid in. (County Court Ord. IX. rr. 11, 12, 13.) Or he may set up a counterclaim (County Court Ord. X. rr. •_', II), or plead the Statute of Limitations (ib. r. 14), or any other special defence, by sending in to the registrar a concise statement of the grounds of such special defence five clear days at least before the day named for trial. (See Precedent, No. 90,y><>.< p. (371.) If the defendant omit to send such statement, he will not be allowed to avail himself of the defence, unless the plaintiff consents thereto; but the judge will in a proper case adjourn the trial of the action to enable the defendant to give such notice. (County Court Ord. X. r. 10.) So, too, if the defendant intends to avail himself of the pro- visions of sects. 1 and 2 of 6 and 7 Vict. c. 96, he must give notice in writing of such intention, signed by himself or his solicitor, to the registrar five clear days before the day appointed for the trial of the action. (County Court Ord. XXXIII. r. 4.) Such notice should be in form No.* 91, post, p. 672, if under sect. 1 of Lord Campbell's Act ; in form No. 92, post, p. 672, if under sect. 2. And see County Court Ord. IX. r 13, as to the necessary payment into court. Where in any-action for libel or slander the defendant relies as a defence upon* the fact that the libel or slander is true, he shall in his statement set forth that the libel or slander complained of is true in substance. (County Court Ord. X. r 16.) Such statement should be in form No. 90, post, p. 071. Where in any action of libel or slander the defendant does not rely as a defence upon the tact that the libel or slander is true, but relies in mitigation of damages on the circumstances under which the libel or slander was pub- lished, or the character of the plaintiff, he must in his statement give particulars of the matters relating thereto as to which he intends to give evidence. (Ib. r. 17.) Interrogatories may be administered in the County Court by leave of the registrar. (County Court Ord. XVI. r. 1.) * Any objection to answer must be taken in the affidavit in answer. Discovery and [* 587] inspection of documents may also be obtained a-- in the Superior Court. The action may at the instance of either party be tried by a jury (525) 45-1 PRACTICE AND EVIDENCE. of five (9 & 10 Vict. c. 05, s. 7:3), upon demand being made in writ- ing to the registrar four clear days before trial. (County Court Ord. XXII. r. 1.) In cases where no demand for a jury has been so made, but at the trial both parties desire one, the judge may adjourn the trial upon terms in order that notice for a jury may be given. (County Court Ord. XXII. r. ±) It is always desirable to have a jury in an action of libel or slander. The trial takes place in all respects as in an ordinary County Court cause ; save that if any pleadings were delivered in the action before the order was made remitting it to the County Court, the judge must not disregard them. Thus, if a plaintiff has shaped his action differently on his statement of claim and on his writ, the judge must look rather to the statement of claim than to the writ (.Tohnson v. Palmer, 4 C. P. D. 258 ; 27 W. R. 041) ; for the indorsement on a writ is superseded by a statement of claim, except as to the amount claimed in the action. [Large v. Large, Weekly Notes, 1877, p. 108 ; Ord. XX. r. 4.) Great care must be taken to ask the judge before delivering judgment to make a note of any point of law on which either party relies. (RJwdes v. LAverpool Lnvestment Co., 4 C. P. D. 425 ; Pierpoint v. Cartwrujht, 5 C. P. D. 139 ; 28 W. R. 583 ; 42 L. T. 295 ; Seymour v. Coulson, (C. A.) 28 W. R. 064.) Judgment is entered and all subsequent proceedings taken as in an ordinary County Court action. Any motion for a new trial must be made to the judge in the County Court (County Court Ord. XXXI.) ; any appeal must be had in accordance with the provisions of the Rules of the Supreme Court, December 1885, made under the Supreme Court of Judicature Act, 1884. (Ord. LIX. rr. 9—17 ; County Court Ord. XXXII. ; and see P. v. Kettle, Brown v. Dorse 17 Q. B. D. 761 ; 55 L. J. Q. B. 470 ; 34 W. R. 776 ; 54 L. T. 875.) The costs will follow the event, unless the judge at the trial make any order to the contrary. County Courts Act, 1846, 9& 10 Vict, c 95, s. 88.) In taxing the costs incurred in the High. Court of Justice previous to the transmission of the action to the County Court under sect. 10 of the County Courts Act, 1867, the registrar shall tax the same according to the scale of costs and fees in use in such High Court of Justice. (County Court Ord. L. r. 1.) The costs subsequent to the order remitting the action will be taxed according to the scale in use in the County Courts, by the express words of sect. 10 of 30 & 31 Vict. c. 142. The Superior Court has no juris- I* 588] diction to make any order as to costs. (Moody v. Steward, L. R. 6 Ex. 35 ; 40 L. J. Ex. 25 ; 19 W. R. 161 ; 23 L. T. 465.) Other Inferior Courts. There are many inferior courts in which actions of libel and slander can be brought, such as the Mayor's Court, London, the Tolzey Court of Bristol, the Salford Hundred Court of Record, the Court of Passage, Liverpool, &c. As to the jurisdiction of such Courts generally, see ante, p. 518. The Salford Hundred Court has power to hear all cases of libel or slander arising within the jurisdic- tion of the court, provided the damages claimed do not exceed £50. (526) OTHER INFERIOR COURTS. 455 If they exceed .£50, it appears that the court lias no jurisdiction, even by consent, (f) & 10 Vict c. cxxvi. ; Farrow v. Hague, 3 II. & C 101; 33 L. J. Ex. 258.) The costs follow the event, both in the Salford Hundred Court (Turner v. Heyland, 4 ( '. P. D. 432; 48 L. J. C. P. 535 ; 41 L. T. 550), and in the Liverpool Court of Pas- Sage {King and another v. Jaawkesworth, 4 Q. I>. D. 371 ; 48 L. J. Q. B. 484 ; 27 W. R. 660 ; 41 L. T. 411), and indeed wherever the case is tried by a jury ; subject, however, to the power reserved to a judge by Ord. LXV. r. 1, to deprive a successful plaintiff of his costs, on good cause shown. Section 29 of the County Courts Act, 1867, never applied to actions of libel or slander, for they never could have been brought in a County Court; and even where it does apply, it is a question 'whether it is not now repealed, as it is not expressly re-enacted by sect. 67 of the Judicature Act, 1873. (■ r i?r> CHAPTER XX. [*589] PRACTICE AND EVIDENCE IN CRIMINAL CASES. This chapter naturally divides itself into two parts : — I. Proceedings by way of Indictment. II. Proceedings by way of Criminal Information. PART I. PRACTICE AND EVIDENCE IN CRIMINAL PROCEEDINGS BY WAY OF INDICTMENT. Proceedings before Magistrates. By sect. 6 of the Newspaper Libel and Registration Act, 1881 [ante, p. 386), "every libel or alleged libel" is included in the Vex- atious Indictments Act (22 & 23 Vict. c. 17) ; and this section ap- plies to all libels, whether published in a newspaper or not. Hence criminal proceedings for libel now commence by the prosecutor summoning the accused before a police or stipendiary magistrate, or before two justices of the peace. The magistrate may, indeed, if he think fit, on good cause shown and information sworn, issue a warrant for his apprehension in the first instance without any previ- ous summons (Butt v. Conant, 1 Brod. & B. 548 ; 4 Moore, 195 ; Gow, 84 ; 11 & 12 Vict. c. 42, ss. 1, 8) ; but such a step will seldom be taken on a charge of libel. If the alleged libel appeared in a newspaper, and the defendant be the proprietor, publisher, editor, or any person responsible for its publication, no criminal prosecution can be commenced without the vrvittenjiat or allowance of the Direc- tor of Public Prosecutions in England, or Her Majesty's Attorney- General in Ireland, being first had and obtained. (Sect. 3 of the News- paper Libel and Registration Act, 1881.) This section does not apply to any criminal information, [* 590] whether ex officio or otherwise. (R. v. Yates, 11 Q. B. D. 750 ; 52 L. J. Q. B. 778 ; 48 J. P. 102; 15 Cox, C. C. 272 ; Yates v. The Queen, (C. A.) 14 Q. B. D. 648 ; 54 L. J. Q. B. 258 ; 33 W. R. 482 ; 52 L. T. 305 ; 15 Cox, C. C. 686 ; 49 J. P. 436.) The Director of Public Prosecutions has an ab- solute discretion under this section to grant or withhold his fiat as he thinks fit. He will not grant it where a civil action will meet all the requirements of the case. The court has no power to control (i>28) PROCEEDINGS BEFORE MAGISTRATES. 457 his discretion ; no mandamus therefore will issue to compel him to grant his fiat {Ex parte Hubert, Hurler & Son, 17 J. P. 724 ; 15 Cox, 0. C. 166 ; 24 Law Times (newspaper), p. 229.) If the accused does not appear in answer to the summons, the magistrate may, on proof of due service, go into the case in his absence, but he more usually issues a warrant lor tin- apprehension of the defendant. (11 & 12 Vict. c. 42, ss. 1, 0.) •When the accused comes before the magistrate the prosecutor has merely to prove publication, unless it is not clear that the libel refers to the' prosecutor, in which case it may he necessary to call someone acquainted with the circumstances to state that on reading the libel lie understood it to refer to the prosecutor. The magistrate must decide for himself whether the written matter before him is in point ( >f law a libel. Unless it is clearly no libel he will, after proof of publication by the defendant or some agent or servant on his behalf ( see ante, pp. 413, 415), commit the defendant for trial. But, before doino- so, he must ask the defendant whether he desires to call any witnesses. (30 & 31 Vict. c. 35 s. 3, Russell Gurney's Act.) The defendant may then call witnesses to prove that he did not publish the libel, that 'it does not refer to prosecutor, that it is on the face of it a fair and bona Jide comment on certain well-known or admit- ted facts of public interest, &c. Upon the hearing of a charge against a proprietor, publisher, or editor, or any person responsible for the publication of a newspaper, for a libel published therein, the court may, by virtue of sect. 4 of the Newspaper Libel and Registration Act,' 1881, "receive evidence as to the publication being for the public benefit, and as to the mat- ters charged in the libel being true, and as to the report being fair and accurate and published witnout malice, and as to any matter which under this or any other act or otherwise might be given in evidence by way of defence by the person charged on his trial or indictment", and' the court, if of opinion after hearing such evidence that there is a strong or probable presumption that the jury on the trial would acquit the person charged, may dismiss the case." But except in cases within this section, the accused may not give [*59l] any evidence before the magistrate of the truth of the mat- ters charged in the libel, unless the information charges him with an offence under sect. 4 of Lord Campbell's Act, _ "The duty and province of the magistrate before whom a person is brought, with a view to his being committed for trial or held to bail, is to determine, on hearing the evidence for the prosecution and that for the de- fence, if there be any, whether the case is one in which the accused ought to be put upon his trial. It is no part of his province to try the case. That being so, in my opinion, unless there is some fur- ther statutory duty imposed on the magistrate, the evidence before him must beVonfined to the question whether the cast' is such as ought to be sent for trial, and if he exceeds the limits of that in- quiry, he transcends the bounds of his jurisdiction. This ease was one of a charge of libel, and the magistrate had to inquire, first, whether the matter complained of was libellous, and, secondly, whether the publication of it was brought home to the accused, so C529) 458 PBACTICB AND EVIDENCE. far as that there ought to be a committal. Independently of statute, the magistrate could not receive evidence of the truth of the libel. The question then arises whether Lord Campbell's Act enables him to do so. In my opinion it does not, because by the provisions of the Act the defence founded upon the truth of the libel does not arise at that stage, and cannot be put forward before the magistrate. Suppose the defendant had succeeded fully and entirely in showing the truth of the libel. What then would have been the duty of the magistrate? lie would nevertheless have been bound to send the case for trial, because by the statute the truth of the libel does not constitute a defence until the statutorv conditions are complied with, and they cannot be complied with at that stage of the inquiry." (Per Cockburn, C.J., in R. v. Sir Hubert ( 'ardeii (Labouchere's case), 5 Q. B. D. 6, 7 ; 49 L. J. M. C. 1 ; 28 W. R. 133 ; 41 L. T. 504 ; 14 Cox, C. C. 359.) And this decision was followed in R. v. Floioers (44 J. P. 377) ; there the defence was that the libel was a fair criticism on a public entertainment, and the magistrate excluded evidence of the facts commented on, and disallowed all cross-examination thereon ; and it was held that he was right in so doing. But when the defendant is charged be- fore the magistrate with an offence under the 4th section of Lord Campbell's Act, that is, with maliciously publishing a defamatory libel, knowing the same to be false, there is open to the defendant to call evidence of the truth of the libel, so as, if possible, to reduce the charge to the minor offence. {Ex jxtrte Ellissen (not reported), approved by Lush, J., in R. v. Carder,, 5 Q. B. D. 11, 18.) The defendant may himself in every case make a statement before [*592] the magistrates, but it is more prudent for him to say noth- ing, except in cases wdiere he has himself seen or heard something justifying the libel. Cases of libel were never disposed of summarily by the magis- trate or justices in petty sessions. It is true that there is authority for holding that in some cases of libel, if there is any danger of a breach of the peace, the justices have the power to demand sureties of good behaviour from the libeller, instead of committing him for trial ; and may themselves, in default of such sureties, commit him to gaol. (Haylock v. Sparke, 1 E. & B. 471 ; 22 L. J. M. C. 67 ; 16 J. P. 308, 359 ; 17 J. P. 262, overruling the dictum of Lord Camden in R. v. Wilkes, 2 Wils. 160 ; and see R. v. Summers, 1 Lev. 139, and R. v. Shuckburgh, 1 Wils. 29.) Such power, if any, was never exercised ; it was regarded as a violation of the princi- ple of Fox's Libel Act, that libel or no libel is a question for the jury. But now, by sect. 5 of the Newspaper Libel and Registra- tion Act, 1881, "If a court of summary jurisdiction upon the hear- ing of a charge against a proprietor, publisher, editor, or any person responsible for the publication of a newspaper for a libel published therein is of opinion that though the person charged is shown to have been guilty the libel was of a trivial character, and that the offence may be adequately punished by virtue of the powers of this section, the court shall cause the charge to be reduced into writing and read to the person charged, and then address a question to (530) INDICTMENT. 459 him to the following effect : — ' Do you desire, to be tried by a jury, or do you consent to the case being dealt with summarily?' and, if such person assents to the case being dealt with summarily, the court may summarily convict him and adjudge him to pay a fine not exceeding fifty pounds." Sect. 27 of the Summary Jurisdiction Act, 1879, shall, so tar as is consistent with the tenor thereof, apply to every such proceeding. (See note, ante, p. 386.) If the magistrate decide to dismiss the case, the prosecutor may still, under sect, 2 of the Vexatious 1 ndict incut s Ad (22 & 23 Vict. c. 17), which, by sect. of this Act, is made applicable to ever;/ libel, require the magistrate to hind him over to prosecute, and the magistrate thereupon is hound to take the prosecutor's recognizance ami forward the depositions to the court in which the indictment will be preferred. But in that case the prosecutor, if unsuccessful, will have to pay all the defendant's costs. (See 30 & 31 Vict. c. 35, s. 2.) If the magistrate decide to send the case for trial, the defendant is entitled to he bailed. Reasonable, but not excessive, bail should be demanded, and it is for the justices to determine whether the sureties offered are sufficient, If no sufficient bail can be found, the accused [*593] must be committed to prison ; hut if sufficient sure- ties come forward the magistrates have no discretion but to allow the defendant to be at large on bail. In the case of an obscene libel the prisoner may be committed for trial to the Quarter Sessions ; in every other case he must he sent to the Assizes or Central Criminal Court. (5 & 6 Vict, c, 3S, s. 1.) As to Ireland, see lie Armstrong, 9 Cox, C. C. 34,2. As to the powers of magistrates, &c, in the case of obscene books and prints, see ante, p. 472. In the case of a seditious libel there is no power ^;o issue a search warrant to seize the author's papers. (Leach's case, 11 St. Tr. 307 ; 19 Howell's St. Tr. 1002 ; Etitick v. Harrington and others, 11 St. Tr. 317 ; 19 Howell's St. Tr. 1029.) Indictment. Counsel must next be instructed to draft the indictment. This requires great care, as the old rules of pleading apply in all their strictness. The words must be set out verbatim, however great their length. (R. v. Bradlaugh and Besant, (C. A.) 3 Q. B. D. 607 ; 48 L. J. M. C. 5 ; 26 W. R. 410 ; 38 L. T. 118.) Any material varia- tion between the words as laid in the indictment and the words proved at the trial will still be fatal, in spite of the powers of amend- ment given by the 14 & 15 Vict. c. 100, s. 1. (See lie Crowe, 3 Cox, C. C. 123 ; Ii. v. Fussell, 3 Cox. C.C. 291.) If the words are in a foreign language, they must be set out in the original, and acorrect translation added. {Zenoblo v. Axtell, <> T. R. 162 ; 3 M. & S. 116 ; Ji. v. Goldstein, 3 Brod. & B. 201 ; 7 Moore, 1 ; 10 Price, 88 ; R. & R, C. C. 473.) The indictment must ex- pressly charge the defendant " with publishing ; " as merely writing a libel is no crime. (Ii. v. Bnrdett, 4 B. & Aid. 95.) It must also declare that the libel was written and published " of and concerning " (531) 460 TRACTICE AND EVIDENCE. the prosecutor. The omission of these words was held fatal in R. v. Marsden, 4 M. & S. 104 ; Russ. on Crimes, 309 ; and in R. v. Sully, 12 J. P. 536. But if it sufficiently appears from other allegations in the indictment to whom the libel refers, it will be held good. {Gregory v. The Queen, 15 Q. B. 957 ; 15 Jur. 74 ; 5 Cox, C. C.« 247.) The indictment must also aver all facts necessary to explain the meaning of the libel and to connect it with the person defamed ; for sect. 61 of the Common Law Procedure Act, 1852, applies only to pleadings in civil cases, so that in an indictment an innuendo still requires a prefatory averment to support it. Hence there is still [*594] considerable technicality in criminal pleading ; although modern judges will never be quite so strict as their predecessors. (See ante, pp. 118, 119.) The innuendo can only explain and point the defamatory meaning of the words ; it must not introduce new matter. The judgment of De Grey, C. J., in R. v. Home (1777) (Cowp. 682 ; 11 St. Tr. 264 ; 20 How. St. Tr. 651), "has universally been considered the best and most perfect exposition of the law on this subject." (Per Abbott, C. J., in R. v Burdett, 4 B. & Aid. 316.) Extrinsic facts must be averred where, without such averments, the libel would appear innocent or unmeaning. (li. v. Yates, 12 Cox, C. C. 233.) But where the writing on the face of it imports a a libel, no innuendo is necessary, nor any introductory averments. {R. v. Tutchin (1704), 14 How. St, Tr. 1095 ; 5 St. Tr. 527 ; 2 Lord Raym. 1061 ; 1 Salk. 50 ; 6 Mod. 268 ; Holt, 424.) See further as to the office of the innuendo, ante, pp. 100 — 103. In 1652 Rolle, C. J., laid it down that " in an indictment a thing must be expressed to be done /also et malitiose, because that is the usual %rm." {Anon., Style, 392.) But in R. v. Burks (7 T. R. 4) the Court of King's Bench decided that in an information, at all events, it is unnecessary to allege that the libellous matter is false. Still it is safer to insert such an averment, " because that is the usual form." In some few cases it is necessary to aver a special intent. Thus, Abbott, J., held, in R. v. Wegener (2 Stark. 245), that where 'a letter is sent direct to the prosecutor, and published to no one else, an intention to provoke the prosecutor and to excite him to a breach of the peace must be alleged, and that an allegation that it was sent with intent to injure, prejudice and aggrieve him in his profession and reputation could not, in such a case, be supported. But the Recorder of London held the contrary in R. v. Brooke (7 Cox, C. C. 251) ; and in R. v. Price, tried at the Swansea Assizes on August 9, 1881, Baggallav, L. J., after consulting Pollock, B., decided that the averment of an intention to provoke the prosecutor to a breach of the peace was not essential, the indictment ending as usual with the words " against the peace of our lady the Queen." Still, it will always be safer to insert the words which Abbott, J., thought neces- sary.* Where a letter containing a libel on a married man is sent to his' wife " it ought to be alleged as sent with intent to disturb the domestic harmony of of the parties." (2 Stark. 245 ; see also R. v. Benfield, 2 Burr. 980.) So in the case of a libel on a person deceased, an intent should be alleged to bring contempt and scandal on his (532) PLEADING TO THE INDICTMENT. 461 [*595] family and relations, ami so provoke them to a breach of the peace (jB. v. Topham., 4 T. R. 126, ante, p. 423 ; lmt now sec 7?. v. Ensor, 3 Times L. R. 366 ; and Precedent No. 102, post, p. 682.) There is no objection to joining several counts, each for a sepa- rate libel, in the same indictment ( />< r Lord Ellenborough, in R. v. Jones, 2 Camp. 132); and the grand jury may of course ignore one count, and find a true bill on any other. Or a count for libel may be joined in the same indictment with a count for any other misde- meanour, though this will not be found convenient in practice, as the judge may call on the prosecutor t<> elect en which he will pro- ceed (B. v. Murphy, 8 C. & P. 297); although lie will not do so where the counts are all for libel, and for libels appearing at differ- ent dates in the same periodical. (15 Cox, C. ('. 220.) But counts may not be added for any libels in respect of which the prisoner was not committed for trial, unless the express leave of the judge be obtained under the Vexatious Indictments Amendment Act, 1867 (30 & 31 Vict. c. 35), s. 1. before the bill is presented to the grand jury. The obtaining- of such leave is not a mere formality, but must conform to the spirit and intention of that Act ; and the additional counts will be quashed, if leave was granted on insuf- ficient materials. (B. Pros. Tyler v. Bradlaugh and others, 31 W. R. 229 ; 47 L. T. 477 ; 47 J. P. 71 ; 15 Cox, C. C. 156.) And now since the Newspaper Libel and Registration Act, 1881, sect. 6, it is no longer in the power of the prosecutor when the magistrate has only committed the defendant under sect. 5 or for the common law offence, to add a count under sect. 4 of of Lord Campbell's Act (as it was formerly ; see 5 Q. B. D. p. 12 ; Boaler v. Holder, 54 L. T. 298). The count for the graver offence will now be quashed or amended so as to make the indictment correspond with the com- mittal. (B. v. Felbermann and Wilkinson, 51 J. P. 168 ; Boeder v. Holder, 3 Times L. R. 546 ; 51 J. P. 277.) All who are in any way concerned in the composition or publica- tion of a libel may be joined in the same indictment. For by the 24 & 25 Vict. c. 94, s. 8, "whosoever shall aid, abet, counsel or procure the commission of any misdemeanour, whether indictable at common law or by virtue of any statute, may be tried, indicted, and punished as a principal offender." But if one defendant denies that he is in any way connected with the libel, and desires to call his co-defendants as witnesses in support of his case, the judge will order him to be tried separately from the others, unless such sepa- rate trial would embarrass the prosecution more than a joint trial would prejudice the defendant. It is a question of the balance of convenience. (Per Lord Coleridge, in B. v. Bradlaugh anel others,* 15 Cox. C. C. 207, 220.) [*596] Pleading to the Bidict>nc?it. When a true bill has been found by the grand jury, the defend- ant is arraigned, the substance of the indictment is read over to him, and he is then called on to plead. At common law he might — (1) Demur to the indictment ; <533) 4G2 PJtACTICE AND EVIDENCE. (2) Plead to the jurisdiction of the court ; (3) Plead especially in bar — (a) Autrefois acquit ; (b) Autrefois convict (see post, p. 606) ; (c) Pardon ; (4) Plead guilty ; or (5) Plead the general issue — not Guilty (see ante, 534). If the prisoner stands mute of malice; or does not answer directly to the charge, a plea of Not Guilty shall be entered for him, and the trial shall proceed as though he had actually pleaded the same. (7 & 8 Geo. IV. c. 28, s. 2.) By virtue of 6 & V Vict. c. 96, s. 6, he may now also — (6) Plead a justification that the words arc true and that it was for the public benefit that they should be published. (See ante, p. 437.) This plea may be pleaded with Not Guilty; it must be entered and filed at the Crown Office or with the Clerk of Assize, and a copy delivered to the prosecutor. There is now but little use in demurring to an indictment, except where the words are not clearly libellous in themselves, and are not reasonably susceptible of the meaning ascribed to them by the in- nuendo. In such a case it might be well to put an end to the case as quickly as possible. But if the demurrer be for a mere formal defect, the court has power to amend, after the demurrer, either an information (R. v. Wilkes , 4 Burr. 2568 ; R. v. Holland, 4 T. R. 457), or now even an indictment. (14 & 15 Vict. c. 100, ss. 1, 2, 3, 25.) If, on the other hand, the defect is one of substance, it will not be waived by pleading over, nor will it be cured by verdict ; but the defendant may still bring error, or move an arrest of judg- ment after conviction. (See 14 & 15 Vict, c. 100, c. 25.) More- over there is this danger in demurring, that the defendant may not demur and plead" Not Guilty at the same time (R. y. Odgers, 2 Moo. & Rob. 479); hence, in'strict law, if he fail on his demurrer, final judgment will be entered for the Crown on the whole case. (R. v. Taylor, 3 B. & C. 509, 515 ; 5 D. & R. 422.) But the court has power to permit the defendant afterwards to plead over, and in these more merciful days will generally exercise that power. [*597J R. v. Mitchell, 3 Cox, C. C. 93 ; R. v. Birmingham & Gloucester Railway Co., 3 Q. B. 223, 233 ; 10 L. J. M. C. 136.) The plea of Not Guilty puts the prosecutor to proof of every ma- terial allegation in the indictment. The defendant may show under this plea that the libel was a fair and bond fide comment on a mat- ter of public interest, that the occasion of publication was privileged • and may indeed raise every other defence permitted him by law, ex- cept that the libel is true. It is only in the case of a defamatory libel on a private individual that the defendant may justify under Lord Campbell's Act. (Ante, p. 438.) And he does'so at his peril ; for placing such a plea on the record will be deemed an aggravation of his offence, should he fail to prove it. By the expresV words of Lord Campbell's Act, a plea of justification under sect. 6 shall be pleaded "in the manner now required in pleading a justification to an action for defamation," as (534) CERTIORARI. 463 to which see ante, pp. 177, 5.38. But in spite of these words there is no power in any court to order particulars of such a plea to an in- dictment or information, or to strike it out. {Re lieu, 9 Cox, C. C. 401.) If sufficient details be not given in the plea, the only course is for the prosecutor to demur. (A', v. Hoggan, Times for Nov. 4th, 1880.) To such a plea the prosecutor may reply generally, denying the whole thereof. (See precedents of such plea and reply in Appendix A., Nos. 38,39, 40.) The other pleas mentioned above are now of rare occurrence. (See post, p. 086.) Certiorari. An application is frequently made to the Queen's Bench Division for a writ of certiorari to bring up an indictment for libel from an inferior court that it may be tried in a Superior Court. The appli- cation is frequently made before the indictment is found by the grand jury, the court being asked to remove " any indictment which may be found." In no other way can the court change; the venue in a criminal case. {R. v. Casey, 13 Cox, C. C. 014 ; R. v. Hon. F. Cavendish, 2 Cox, C. C. 175.) The advantages obtained by the removal are amongst others, that in the Queen's Bench Division a special jury can be secured, and that the defendant can move the court for a new trial, if convicted. Where the application is made by the Attorney-General officially, the writ issues as a matter of course. {R. v. Thomas, 4 M. & S. 442.) But where a private individual applies for the writ, whether prose- cutor or defendant, he will have to file affidavits showing some spec- ial ground for the removal, arising out of the circumstances of the par[*598] ticular case (Crown Office Rules, 1886, 29) ; and he must also enter into recognizances to pay all costs incurred subsequent to the removal, if he be ultimately unsuccessful. (16 & 17 Vict. c. 30, ss. 4, 5.) The application may in vacation be made to a judge at chambers. (5 & 6 Will. & Mary, c. rr. s. 3 ; Crown Office Rules, 1886, 42.) One of several defendants may obtain the writ ; if he does, this will remove the indictment as to all. {R. v. Boxall, 4 A. & E. 513.) But the judge wluo grants the certiorari will require the defendant who applies for it to give security for the costs of the prosecution occasioned by the removal, in the event of any one of the defendants being convicted. (R. v. Jewell, 7 E. & B. 140 ; 26 L. J. Q. B. 177 ; R. v. Fonlkes, 1 L. M. & P. 720 ; 20 L. J. M. C. 196.) The affidavits should be entitled " in the Queen's Bench Division " simply. The mere fact that the defendant desires a special jury is not alone a sufficient ground for removal. (R. v. Morton, 1 Dowl. N. S. 543.) Nor is it enough to show on affidavit that difficult questions of law may arise (R. v. Joule, 5 A. &: E. 539), especially if the indictment be in the Central Criminal Court. (R. v. Tem}> lar, 1 Nev. & P. 91.) But if it can be proved that a fair and impar- tial trial of the case cannot be had in the court below, the applica- tion will be readily granted. (R. Y.Hunt and others, 3 B. & Aid. 444 ; R. v. Palmer, o E. & B. 1024.) No appeal lies to the Court (535) 464 PRACTICE AND EVIDENCE. of Appeal from the Refusal of the Queen's Bench Division to grant a certiorari. (II, v. Rudge, (C. A.) 16 Q. B. D. 459 ; 55 L. J. M. C. 112 ; 34 YV. R. 207 ; . r ):i L. T. 851 ; 50 J. P. 755.) Formerly in cases of misdemeanour the court made the order ab- solute in the first instance. (P. v. Spencer, 8 Dovvl. 127 ; P. v. Chipping Sodbury,^. & M. 104.) Hut now in all cases an order nisi only is granted, unless there be great urgency. (See Crown Office Rules, L886, 28.) If an order nisi for such a writ be obtained, the court below will, as of course, order the trial to stand over till the argument. If the order be made absolute, either prosecu- tor or defendant can apply for a special jury. (6 Geo. IV. c. 50, s. 30.) After the removal the defendant must appear in the Queen's Bench Division, and plead or demur to the indictment within four davs, if not immediately ; but the court will grant him further time on good cause shown. (60 Geo. III. & 1 Geo. IV. c. 4, ss. 1,2.) _ The trial may take place, either at bar in the Queen's Bench Divi- sion at the Royal Courts of Justice, or at the assizes on the civil side, or at the Central Criminal Court. (19 & 20 Vict. c. 16, s. 1.) A successful prosecutor will be entitled to his costs, whether he be "the party grieved or injured " by the defendant's words or not. [*599] (P. v. Oastlcr, I, R. 9 Q. B. 131 ; 42 L. J. Q. B. 42; 22 W. R. 490;29L. T. 830 ; overruling li. v. Devhurst,b B. & Ad. 405.) The costs will be taxed under a side-bar rule ; and if they are not paid within ten days the recognizance will be estreated, and the sureties compelled to pay. (16 & 17 Vict. c. 30, s. 6.) The sureties may then sue the defendant and recover the amount for which they be- came bail in an action for money paid at the defendant's request. (Jones v. Orchard, 16 C. B. 614 ; 24 L. J. C. P. 229 ; 3 W. R. 554.) A writ of certiorari may also be applied for to bring up an indict- ment in order that its validity may be considered and determined, and that it may be quashed, if proved invalid. Such an application must be made after the bill is found and before judgment: has been given thereon ; for after judgment has been given the record can only be removed by writ of error. (R. v. Seton, 7 T. R. 373 ; In re Pratt, 7 A. & E. 27 ; P. v. Unrein, 7 Dowl. 578 ; P. v. Christian, 12 L. J. M. C. 26 ; P. v. Wilson, 14 L. J. M. C. 3.) The court below has full power to hear a motion in arrest of judgment. Evidence for the Prosecution. When the case comes on for trial the onus lies on the prosecutor to prove — (1.) That the defendant published the defamatory words. As to what is a sufficient publication in law, see ante, c. VI. pp. 151—169. As to constructive publication by the act of the defendant's servant or agent, see ante, pp. 411 — 413. The proof of publication in criminal cases is precisely the same as in civil cases, save that it is not essential to prove a 'publication to a third person, where the indictment alleges an intent to provoke a breach of the peace. (P. v. Wegener, 2 Stark. 245 ; Phillips v. Jansen, 2 Esp. 624 ; Clutter- buck v. Chafers, 1 Stark. 471.) Sect. 27 of the Common Law Pro- rr>3fi} EVIDENCE FOR THE PEOSECUTION". 465 cedure Act, 1854, ante, p. 500, as to comparison of handwriting, though originally confined to civil proceedings (sect. 10-'3), now applies to criminal trials as well. (28 & 29 Vict. c. 18, s. 8. See also R. v. Beare, 1 Lord Ravin. 414 ; 12 Mod. 221 ; 2 Sulk. 417 ; Carth. 409 ; Holt, 422 ; ft. v. Slaney, 5 C. & P. 213.) Whoever requests or procures another to write or publish a libel will he held equally guilty with the actual publisher. (ft. v. Cooper,* Q. B. 533 ; 15 L. .1. Q. B. 200.) If the manuscript from which a libel has been printed be produced and proved to be in the handwriting of the defendant, this is prima facie proof that he authorised or directed the printing and publishing ; though the defendant may give evidence to rebut it. (ft. v. Lovett, 9 [*000] C. & P. 462. And see the remarks of Lord Erskine, 5 Dow. II. L., at p. 201.) (2.) It is, however, necessary in a criminal case to prove further that the prisoner published the libel in the county in which the venue is laid. However, if the defendant write a libellous letter and cause it to be posted, that letter is published both in the county where it is posted, and in the county to which it is addressed. (It. v. Burdett, 4 B. & Aid. 95 ; ft. v. Girdwood, 1 Leach, 169 ; East, P. C. 1120, 1125 ; ft. v. Holmes, 12 Q. B. D. 23 ; 49 L. T. 540.) If the person to whom it is addressed be not then at the address given on the envelope, and the letter be forwarded unopened to him at his lodgings in Middlesex, and there opened, then this is a publication by the defendant in Middlesex, (ft. v. Watson, 1 Camp. 215.) The post-mark is sufficient primd facie evidence that the letter was in the post-office named on the date of the mark. (ft. v. Plumer, Russ. & Ry. 164 ; ft. v. Canning, 19 St. Tr. 370 ; ft. v. Hon. Robert Johnson, 7 East, 65 ; 3 Smith. 94 ; 29 How. St. Tr. 103 ; Stockoi v. Collin, 7 M. & W. 515 ; 10 L. J. Ex. 227.) These cases must be taken to overrule the dictum of Lord Ellenborough in ft. v. Watso?i, 1 Camp. 215. An admission by the defendant that he wrote the libel is no admission that he published it, still less that he published it in any particular county. (The Seven Bishops'' case, 4 St. Tr. 304 ; ft. v. Burdett, 4 B. & Aid. 95.) (3.) The prosecutor must now put in the libel and have it read to the jury. The libel itself must, if possible, be produced at the trial. If it be in the possession of the defendant, and notice has been given to him to produce it, and he refuses so to do, secondary evidence may be given of its contents. (Attorney- General v. Be Merchant, 2 T. R. 201, n. ; ft. v. Boucher, 1 F. & F. 486.) But proof that the document was last seen in the possession of a servant of the defendant does not of itself eiititle the prosecutor to give parol evidence of its contents, (ft. v. Pearce, Peake, 75.) Notice to produce must be given a reasonable time before the trial. No general rule can be laid down as to what is a reasonable time ; each case must be governed by its particular circumstances ; but if it appear that since the notice was given there was an opportunity of fetching the document, the notice will be held sufficient. (Per Bramwell, B., in ft. v. Barker, 1 F. & F. 326.) Any-other docu- ments which explain the libel, and are referred to in it, may also be put in and read. (ft. v. Slaney, 5 C. & P. 213.) 30 lib. & slan. (537) 40G PRACTICE AND EVIDENCE. Any variance between the words as proved and the words as laid will be fatal, if it in any way affects the sense. But a variance which is immaterial to the merits of the case may be amended by the judge [*601) at the trial, at any time before verdict, if he thinks that such amendment cannot prejudice the defendant in his defence on the merits. (7 Geo. IV. c. 04, s. 20 ; 14 & 15 Vict. c. 100, ss. 1, 24, 25.) But once such amendment has been made, there is no power of amending the amendment, or reverting to the indict- ment as it originally stood ; but the case must be decided upon the indictment in its amended form. The prosecution must further prove the innuendoes and all ex- planatory averments of extrinsic facts, whenever such proof is nec- essary to bring out the libellous nature of the publication, or to point its application to the person defamed. That asterisks or blanks are left where the name of the person defamed should appear is no defence, if those who knew the circumstances understood the libel to refer to the prosecutor. Any declarations of the defendant as to what he meant are admissible in evidence against him. (R. v. Tucker, Ry. & Moo. 134.) Strict proof must be given of all ma- terial and necessary allegations in the indictment, which the libel itself does not admit to be true. (R. v. Sutton, 4 M. & S. 548 ; R. v. Holt, 5 T. R. 436 ; R. v. Martin, 2 Camp. 100 ; B. v. JBudd, 5 Esp. 230.) It 'will then be for the jury, after considering this evidence, to Bay whether the publication, when taken as a whole, is or is not a libel. (4) In a few cases the prosecution must also prove a special intent stated in the indictment. (Ante, pp. 423, 594.) Whether such special intent existed or no is a question for the jury. An aver- ment of intention is divisible ; so that where a libel is alleged to have\)een published with intent to defame certain magistrates, and also to bring the administration of justice into contempt, it is suf- ficient to prove a publication with either of these intentions. (R. v. Evans, 3 Stark. 35.) Malice need never be proved unless the occasion be privileged. (5.) If the indictment be framed under sect. 4 of Lord Campbell's Act, the prosecutor must give some evidence that the defendant knew that the words were false. But in no other case need the prosecutor give any evidence to show that the libel is false. Evidence for the Defence. The defendant may call evidence rebutting the case for the pros- ecution, e.g., he may dispute the fact of publication, or negative the innuendo, or show that the libel referred to some one else, not the prosecutor. He may give in evidence any facts which put a differ- ent complexion on the libel, e.g., other passages contained in the same publication, fairly connected with the same subject. (R. v. Lambert [*602] and Perry, 2 Camp. 398 ; 31 How. St. Tr. 340.) So, too, the defendant may give evidence of any collateral facts which show that the libel complained of is a fair and bona, fide (.538) EVIDENCE FOR THE DEFENCE. 467 comment on a matter of public interest, or is privileged by reason of the occasion on which it was published. Unless such privilege be absolute, the prosecutor may rebut this defence by evidence of malice, precisely as in civil cases. (Ante, c. IX. pp. 269—290.) The defendant may also cross-examine the plaintiff's witnesses as to any previous statements made by them on the subject-matter of the indictment, and if such statements were reduced into writing, such writing may be produced to contradict them. (28 & 29 Vict, c. 18, ss. 4, 5.) As to proving a previous conviction of a witness, see ante, p. 573. The defendant may call evidence to show that though he pub- lished the libel with his own hand he was not at the time conscious of its contents. The onus of proving this lies on the defendant ; the bare delivery of the letter, though sealed, has been held to be 'prima facie evidence of a knowledge of its contents. (R. v. Gird- wood, 1 Leach, 169 ; East, P. C. 1120, 1125.) But if the defend- ant can prove that he cannot read, or that he never had any oppor- tunity of reading the libel, but delivered it pursuant to orders, hav- ing no reason to suppose its contents illegal, this will be a defence. (See ante, pp. 432, 433.) Ao-ain, where evidence has been given which has established a primd facie case of publication against the defendant by the act of some other person acting by his authority, the defendant may prove that such publication was made without his authority, con- sent or knowledge, and arose from no want of due care or caution on his part. (6 &"7 Vict. c. 96, s. 7.) The leading case on this sec- tion is R. v. Holbrook and others, 3 Q. B. D. 60 ; 47 L. J. Q. B. 35 ; 26 W. R. 144 ; 37 L. T. 530 ; 13 Cox, C. C. 650 ; 4 Q. B. D. 42 ; 48 L. J. Q. B. 113 ; 27 W. R. 313 ; 39 L. T. 536 ; 14 Cox, C. C. 185, ante, p. 415. Mr. Bradlaugh succeeded in establishing a defence under this section in R. v. Bradlaugh and others, 15 Cox, C. C. 217, ante, p. 436. Also, if the defendant has pleaded a plea under Lord Campbell's Act, but not otherwise, he may give evidence of the truth of the libel. But the truth alone is no defence in a criminal case, unless the defendant can also show that it was for the public benefit that the matters charged should be published. No such plea can be pleaded in the case of a blasphemous, obscene or seditious libel. (R. v. Dufy, 9 Ir. L. R. 329 ; 2 Cox, C. C. 45 ; Ex parte O'Brien, 12 L. R. Ir. 29 ; 15 Cox, C. C. 180.) If a general charge be made in the libel, [*603] specific instances must be set out in the plea. It will be sufficient, however, if at the trial two or three distinct instances are proved to the satisfaction of the jury. (R.jwos Lam- bri v. Labouchere, 14 Cox, C. C. 419 ; ante, p. 174.) Evidence that the identical charges contained in the libel which is the subject of the indictment had, before the time of composing and publishing such libel, appeared in another publication which was brought to the prosecutor's knowledge, and against the pub- lisher of which he took no legal proceedings, is not admissible either at common law or under this section. (R. v. Holt, 5 T. R. 436 ; R. v. Newman, Dears. C. C. 85 ; 3 C. & K. 252 ; 1 E. & B. 268 ; (539) 4G8 PRACTICE AND EVIDENCE. 22 L. J. Q. B. 156 ; 17 Jur. 617 ; Pankhurst v. Hamilton, 2 Times L. R. 682.) That rumours to the same effect had previously been circulated in other newspapers is no justification for the defendant's repeating the statement in his own paper, especially if he purports to speak from authority. (P. v. Harvey and Chapman, 2 B. & C. 257.) So, too, it is no defence to a charge of publishing a seditious libel, that it is an extract from an American paper, reprinted as foreign news, especially if such seditious extracts be habitually published by the defendant at a time of great political excitement, without one word of warning or one note of disapproval. (P. v. Pigott, 11 Cox, C. C. 46.) Where the libel contains several charges, the defendant must prove the truth of them all ; otherwise the jury will be bound to find a verdict for the Crown ; and the court, in giving judgment, must consider whether the guilt of the defendant is aggravated or mitigated by the plea, and by the evidence given to prove or disprove it, and form its own conclusion on the whole case. (P. v. Newman, 1 E. & B. 558 ; 22 L. J. Q. B. 156.) If no such plea has been placed on the record, no evidence can be given of the truth of the defendant's words. But if evidence be admissible on other issues in the case, it will not be excluded merely because it tends to show the truth of the libel. (P. v. Grant and others, 5 B. & Adol. 1081 ; 3 N. & M. 106.) The defendant may also, as in other criminal cases, call witnesses to his good character ; but such evidence will be of very little use, except perhaps in cases of mistaken identity. Evidence in mitiga- tion of punishment is not generally given before verdict ; but affidavits may be filed for that purpose after the trial. Some judges permit the prisoner, although defended by counsel, to make a state- ment to the jury before his counsel addresses them. But if in such statement the prisoner gives evidence, the counsel for the prosecu- tion can claim the right to reply generally, after the counsel for the prisoner [* 604] has concluded his speech. (P. v. Eyre (Leeds Assizes), Times, Nov. 6th, 1880.) Summing-up and Verdict. The judge at the conclusion of the case sums up the evidence to the jury, and directs the jury as to the law. Before Fox's Libel Act, it had come to be the rule that the judge, not the jury, should decide whether or no the publication was a libel. On proof of the publication of the innuendoes, and of the other necessary averments, the judge would direct the jury to find the defendant guilty. (See P. v. Wood/all, 5 Burr. 2661 ; P. v. Shipley (Dean of St. Asap>h), 21 St. Tr. 1043 ; 3 T. R. 428, n. ; 4 Dougl. 73 ; P. v. Withers, 3 T. R. 428.) But that Act (32 Geo. III. c. 60, s. 1), declares and enacts that on the trial of an indictment or information for libel the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue before them. Or the jury may in their discretion find a special verdict as in other criminal cases. (Sect. 3.) The judge of course may still direct the jury on any point of law, stating his own opinion thereon if he think fit ; but the question, libel or (540) PROCEEDINGS AFTER VERDICT. 469 no libel, must ultimately be decided by the jury. Fitzgerald, J., thus addressed the jury in a case of seditious libel : — "You are the sole judges of the guilt or innocence of the defendant. The judges are here to give any help they can, but the jury are the judges of law and fact, and on them rests the whole responsibility. In this sense the jury are the true guardians of the liberty of the press." {P. v. /Sullivan, 11 Cox, C. C. 52.) The jury should of course pay attention to and accept the judge's statement of the law, and then take the alleged libel into their hands, and consider it carefully ; not dwelling too much on isolated passages, but judging it fairly as a whole. If the libel be contained in a book they may look at the rest of the book. (Per Lord Ellenborougli, in P. v. Lambert and Perry, 2 Camp. 399. See also Cooke v. Hughes, 1 R. & M. 112, and ante, pp. 98, 317.) And on the trial of Home Toohe for treason the matter was carried much further, for in that case the prisoner was allowed to read in his defence various extracts from other works published by him at a former period of his life ; and the jury were permitted to carry these along with them when they retired to con- sider their verdict. Lord Ellenborough, however, expressed grave doubt as to the propriety of this course. (2 Camp. 400.) [*605] Proceedings after Verdict. If at the trial the defendant is acquitted, no further proceedings can be taken ; the verdict of the jury is conclusive in favour of the defendant. (P. v. Cohen and Jacob, 1 Stark. 516 ; P. v. Mann, 4 M. & S. 337.) If the jury cannot agree they must be discharged and the prisoner tried again, unless a nolle prosequi be entered, for which the leave of the Attorney-General is necessary. The prisoner is apparently not entitled to be admitted to bail in the interval be- tween the two trials. (P. v. Mote, 10 Q. B. D. 378 ; 48 L. T. 394; 15 Cox, C. C. 240.) If, however, the defendant is convicted, then, if the judge before whom the trial took place has reserved any point of law arising thereat for the consideration of the court above, he may state a case in the matter pointed out by the 11 and 12 Vict. c. 78, s. 2. This case will be argued in the court for the consideration of Crowi% Cases Reserved, when the conviction will be either quashed or affirmed. If no such point has been reserved, then the prisoner may move in arrest of judgment, as in a civil case under the old procedure, on the ground that the words as laid do not sufficiently appear to be libellous, or on some other ground appearing on the face of the record. Power to make this motion is expressly re- served by Fox's Libel Act (32 Geo. III. c. 60, s. 4). The absence of any essential introductory averment or innuendo will be a good ground for arresting judgment. (P. v. Shipley (Dean of St. Asaph), 21 St. Tr. 1043 ; 3^T. R. 428, n. ; 4 Dougl. 73 ; P. v. Top- ham, 4 T. R. 126.) But mere formal defects cannot now be taken advantage of in such a motion. (14 & 15 Vict. c. 100, s. 25.) And " it is a general rule of pleading at common law that where an averment which is necessary for the support of the pleadings is im- (541) 470 PRACTICE AND EVIDENCE. perfectly stated, and the verdict on an issue involving that aver- ment is found, if it appears to the court, after verdict, that the verdict could not have been found on this issue without proof of this averment, then, after verdict, the defective averment which might have been bad on demurrer is cured by the verdict." {Per Blackburn, J., in Heyman v. The Queen, L. R. 8 Q. B. 105, 100 ; 21 W. R. 357 ; 28 L. T. 162 ; per Brett, L. J., in P. v. Aspinall, 2 Q. B. D. 57, 58 ; 40 L. J. M. C. 145 ; 25 W. R. 283 ; 30 L. T. 297. See also Serjeant Williams' note (1) to Stennel v. Hogg, 1 Wins. Saund. 228 ; P. v. Goldsmith, L. R. 2 C. C. R. 79 ; 42 # L. J. M. C. 94; 21 W. R. 791; 28 L. T. 881.) In all other cases, however, every objection which could have been taken by demurrer before the jury were sworn may still be taken either upon motion in arrest of judgment or by [*000] writ of error. {Per Cockburn, C. J., ii Q. B. D. 572 ; and per Bramwell, L. J., 3 Q. P. D. 024 ; P. v. Parkin, Dears. C. C. 305 ; 23 L. J. M. C. 125.) Hence, if an indict- ment for publishing an obscene book does not set out the passage or passages of such book alleged to constitute the offence, but only refers to the book by its title, this defect is not cured by a verdict convicting the defendant, nor is it waived by the defendant's omit- ting to demur. {Pradlaugh and Pesant v. The Queen (C. A.), 3 Q. B. D. 007 ; 48 L. J. M. C. 5 ; 20 W. R. 410 ; 38 L. T. 118 ; 14 Cox, C. C. 68, overruling P. v. Pradlaugh and Pesant, 2 Q. B. D. 569 ; 46 L. J. M. C. 280.) Where, however, an indictment or in- formation contains several counts, if any one of them be found good, the judgment will stand. {P. v. Penfield and others, 2 Burr, 985.) A motion in arrest of judgment should be made before sentence to the judge at the trial, who may reserve the point for the con- sideration of the Court of Crown Cases Reserved. If the defendant omit to make such motion, still the court will of itself arrest the judgment, if on a review of the case it be satisfied that the defendant has not been found guilty of any offence in law. {Per cur. in P. v. Waddington, 1 East, 140.) On a motion in arrest of judgment the court has no power to amend the record. {P. v. Parkin, Dears. C. C. 305 ; 23 L. J. M. C. 125.) If the judgment be arrested, all the proceedings are set aside and judgment of acquittal is given ; but this will be no bar to a fresh indictment, for the defendant was never really in jeopardy under the defective indictment. ( Vaux's case, 4 Rep. 45a.) So if the judgment against him be reversed on a writ of error, he can be again indicted for the same offence. {P. v. Brury and others, 3 C. & K. 190 ; 18 L. J. M. C. 189.) The defendant may also bring a writ of error, after conviction and sentence, on obtaining the fiat of the Attorney-General, which will be granted on a certificate signed by the prisoner's counsel whenever reasonable grounds are shown. That the same point has been raised by motion in arrest of judgment and decided against the prisoner is no bar to bringing error. {Per Mellor, J., in P. v. Pradlaugh and Pesant, 2 Q."B.*T>. 574 ; 40 L. J. M. C. 280.) If the Attorney-General refuse to grant a fiat, the defendant has no remedy. {Ex parte Newton, 4 E. & B. 809 ; Pe Pigott, 11 Cox, C. (54 2) SENTENCK. 471 C. 311.) If the judgment below be reversed, the Court of Error now has power to pronounce the proper judgment. (11 & 12 Vict, c. 78, s. 5.) When the indictment or information either originated in the Queen's Bench Division or lias been removed thither by certiorari, the defendant may also move for a new trial, as in a civil case under [*607] the old practice. The motion should be made within the times specified in r. 166 of the Crown Office Rules, 1886 ; though the time may be extended ex gratia in a proper case. (R. v. Holt, 5 T. R. 436 ; R. v. Newman, 1 E. & B. 270 ; 22 L. J. Q. B. 156 ; Dears. C. C. 85 ; 17 Jur. 617 ; 3 C. & K. 252 ; Crown Office Rules, 167.) A new trial may be moved for on the ground that the prosecutor omitted to give due notice of trial, or that the verdict was contrary to evidence or to the direction of the judge, or on the ground of improper reception or rejection of evidence or other mistake or mis- direction of the judge, or of any gross misbehaviour of the jury among themselves, or for surprise, or for any other cause where it shall appear to the court that a new trial will further the ends of justice. (R. v. Whitehouse and Tench, Dears. C. C. 1.) The prisoner must be present in court when a motion for a new trial is made and argued. (R. Spragg and another, 2 Burrt 929 ; R. v. Caudwell, 2 Den. C. C. 372, n ; Crown Office Rules, 169.) The rule is generally argued therefore when the defendant is brought up for judgment. (R. v. Hetherington, 5 Jur. 529.) Where the verdict is on the face of it imperfect, so that judgment cannot be given upon it, the court will award a venire de nova instead of granting a new trial, the error appearing on the face of the record. In such a case the first trial is a mis-trial and is treated as a nullity, and the prisoner does not plead again. [Per Abbott, C. J., in R. v. Foxder and Sexton, 4 B. & Aid. 273, 276.) A venire de nova was awarded in WoodfalPs case (5 Burr, 2661), it being impossible to say what the jury meant by finding him " guilty of publishing only". (And see Campbell and another v. The Queen, 11 Q. B. 799 ;' 17 L. J. M. C. 89.) When a motion for a new trial is allowed, or a writ of venire facias de nova awarded, the parties stand precisely as they did before the first trial, and the whole of the evidence has to be re- heaixl. Where a new trial is ordered of an indictment removed into the Queen's Bench Division by certiorari, at the instance of the defen- dant, the court may, in its discretion, order that the costs shall abide the event of the new trial. (R. v. Whitehouse and Tench, Dears. C. C. 1.) Sentence. Sentence is generally passed directly the verdict of guilty is given ; but not always, especially in the Queen's Bench Division. If not, the defendant was formerly kept in custody till sentenced ; but now, unless the case be exceptional, he is allowed out on the same bail as [*608] before. In the interval, the defendant frequently files (543; 472 PRACTICE AND EVIDENCE. affidavits in mitigation of punishment, which the prosecutor may answer. Such affidavits may show that the defendant reasonably and bona fide believed in the truth of the charges made in the libel, but not that the libel is in fact true. (E. v. Burdett, 4 B. & Aid. 314 ; E. v. Halpin, 9 13. & C. G5 ; 4 M. & R. 8 ; E. v. Newman, 17 J. P. 84.). Or they may contain general evidence of a good character, or disclaim any personal malice against the relator (E. v. Tanjield, 42, J. P. 423), or show that the defendant voluntarily stopped the sale of the book complained of as soon as proceedings were com- menced (E. v. Williams, Lofft. 750), or any other circumstance show- ing provocation by the prosecutor or an absence of malice in the de- fendant. But the defendant should be careful not to attack the character of the prosecutor, or his witnesses, or impugn the justice of the verdict, lest he thereby aggravate his original offence. A memorial in his favour, not on affidavit, will not be received. (Per Blackburn, J., in E. v. Shimmens, 34, J. P. 308.) If, in the interval, since the verdict, the defendant has republished the libel, or continued its sale, or been guilty of other misconduct, the prosecutor may file affidavits in aggravation of punishment. (See E. v. Withers, 3 T. R. 428.) As to the procedure when the defendant is brought up for judgment see E. v Bunts, 2 T. R. 683. The defendant must be personally present, if his state of health will permit. (E. v Eyder-Burton, 38 J. P. 758 ; E. v. Kinglake, W. Notes, 1870, p. 130.) If he has absconded, judgment apparently cannot be pronounced ; all the court can do is to entreat the rec- ognizances. (E. v. Chichester, 17 Q. B. 504, n ; E. v. Elizabeth Williams Weekly Notes, 1870, p. 120 ) The judge in passing- sentence will consider whether the guilt of the defendant is aggra- vated or mitigated by any plea of justification which he may have placed on the record, and by the evidence given to prove or disprove the same. (6 & 7 Vict. c. 96, s. 6 ; E. v. Newman, 17 J. P. 84.) Where judgment has been suffered by default, both parties should state their case on affidavit. If there is any matter in the prose- cutor's affidavit which the defendant could not be expected to have come prepared to answer, he will be allowed an opportunity of an- swering it on a future day. (E. v. Archer, 2 T. R. 203, n ; E. v. Wilson, 4 T. R. 487.) As to the sentence that may be passed in the case of a defamatory libel at common law, se ante, p. 425 ; under the various statutes, pp. 426, 427 ; in the case of a blasphemous libel, p. 440 ; an obscene libel, p. 471 ; a seditious libel, p. 479. If the prisoner be found [*609] guilty of publishing a blasphemous or seditious libel, all copies found in his possession may be seized and destroyed by an order of the court, under 60 Geo. III. & 1 Geo. IV. c. 8, ss. 1, 2. Costs. In the case of an indictment or information by a private prosecu- tor the publication of a defamatory libel, if judgment shall be given for the defendant, he shall be entitled to recover his costs from the prosecutor. (6 & 7 Vict. c. 96, s. 8.) Such costs must first be taxed (544) COSTS. 473 by the proper officer of the court before which the said indictment or information is tried ; and this should be done before the next commis- sion of assize issues, if the case was tried at the Assizes, else the clerk of assize will be functus officio ; his taxation cannot be reviewed by the Queen's Bench Division. (R. v. Neichovse, 1 L. & M. 129 ; 22 L. J. Q. B. 127 ; 17 J. P. 57.) No special order to tax is neces- sary, (li. v. Sully, 12 J. P. 536.) In the case of an information, the record being in the Queen's Bench Division, execution may issue on taxation in the ordinary way. (11. v. Latimer, 15 Q. B. 1077 ; 20 L. J. P. B. 129 ; 15 Jur. 314.) But in the case of an indictment not in the Queen's Bench Division, there is no way of issuing execu- tion for such costs ; they must be recovered therefore by an ordinary action at law. (Richardson v. Willis, L. R. 8 Ex. 69 ; 42 L. J. Ex. 15, 68 ; 27 L. T. 828 ; 12 Cox, C. C. 298, 351.) So if a defendant pleads a justification and the issue be found for the prosecutor, the prosecutor may recover from the defendant the costs he has sustained by reason of such plea, whatever be the result of any other issues. (6 & 7 Vict. c. 96, s. 8.) But this section does not apply to crown prosecutions, or to any proceedings for blasphemous, obscene or seditious libels. And there is no provision enabling a prosecutor to recover the general costs of the prosecution. Sometimes, however, if a fine be imposed on the defendant as part of his sentence, the prosecutor may, by memorial- izing the Treasury, obtain a portion of the fine towards the payment of his costs. Where an indictment is removed by certiorari into the Queen's Bench Division the party applying for the writ (not being the Attor- ney-General) must give security for all subsequent costs. Where a municipal corporation have directed a prosecution for a libel on one of their officers, the costs cannot be paid out of any borough fund. (E v. Mayor, &c, of Liverpool, 44 L.J. Q. B. 175 ; 20 W. R. 389 ; 26 L. T. 101.) Where the directors of a company [*610] have instituted a prosecution for a libel on themselves, the costs should not be paid out of the assets of the company, though the directors will not as a rule, be ordered to repay any costs already so paid. (Pickering v. Stephenson, L. R. 14 Eq. 322 ; 41 L. J. Ch. 493; 20 W. R. 654 ; 26 L. T. 60S.) But where the libel is an attack upon the company itself, and calculated to injure its credit or diminish its business, the costs of a prosecution may rightly be paid out of the funds of the companv. (Studdert v. Grosvenor, 33 Ch. D. 528 ; 55 L. J. Ch. 689 ; 34 W. R. 754 ; 55 L. T. 171 ; 50 J. P. 710 ; ante, p 373.) (545) 474 PRACTICE AND EVIDENCE. PART II. PRACTICE AND EVIDENCE IN PROCEEDINGS BY WAY OF CRIMINAL INFORMATION. Motion for the Order Nisi. An ex officio information is filed by the Attorney-General of his own motion. All other criminal informations are filed by the Queen's coroner and attorney, formerly called the Clerk of the Crown ; he may not file any information without an express order of the Queen's Bench Division granted in open court. (4 Wm. &Mary, c. 18, s. .1 ; Crown Office Rules, 1886, r. 46.) Counsel must move the court upon proper affidavits for an order nisi calling upon the defendant to show cause why an information should not be granted. The motion must be made within a reasonable time after the offence complained of. (lb. r. 48.) The former rule was that the application must he made within two terms after the publication, or at all events within two terms after the libel came to the knowledge of the prosecutor. The prosecutor, too, must come to the court in the first instance, and must not have attempted to obtain redress in other ways. (R. v. Mar- shall, 4 E. & B. 475, ante, p. 431.) He must submit himself to the court, and consent to waive his civil remedy by action, if need be, and must be prepared to go through with the criminal proceedings to conviction. It is unnecessary to obtain the fat of the Director of Public Prosecutions in England or of the Attorney-General in Ire- land before moving, as section 3 of the Newspaper Libel and Regis- tration Act does not apply to any application for a criminal infor- mation whether ex officio or otherwise. ( Yates v. The Queen, (C. A.) 14 Q. B. D. 648 ; [*61l] 54 L. J. Q. B. 258 ; 33 W. R. 482 ; 52 L. T. 305 ; 15 Cox, C. C. 686 ; 49 J. P. 436.) The affidavits on which the application is based should be care- fully drawn up ; as no second application may be made on amended or additional affidavits. (R. v. Franceys, 2 A. & E. 49.) They should in the first place prove the publication by the defendant. Mere prima facie evidence of this will not be sufficient. (R. v. Baldwin, 8 A. & E. 168 ; R. v. Willett, 6 T. R. 294.) There must be before the court legal evidence sufficient to justify a grand jury in returning a true bill for the same offence. Thus, in R. v. Stanger, L. R. 6 Q. B. 352 ; 40 L. J. Q. B. 96 ; 19 W. R. 640 ; 24 L. T. 266, the affidavits merely showed that the annexed copy of the Newcastle Daily Chronicle, the newspaper containing the libel, had been pur- chased from a salesman in the office of that paper, and that in a foot- note at the end of that copy the defendant was stated to be the printer and publisher of the newspaper, and the relator believed him so to be ; it was held that this was no legal evidence of publication, and the rule was discharged. If the defendant keeps an office or shop at which copies of the paper can be purchased, then an affida- vit by a person who purchased a copy of the libel at such office or (546) ARGUMENT. 475 shop will be the best evidence of a publication by the defendant, and also that most easily obtainable. That the purchase was made expressly for the purpose of enabling such affidavit to be sworn is no objection. (Duke of Brunswick v. llarmer, 14 Q. B. 189 ; 19 L. J. Q. 11 20 ; 14 Jur. 110 ; 3 C. & K. 40.) It is a doubtful point whether the omission of such strict proof of publication can subsequently be supplied by the. admission, if any, in the defendant's affidavits filed to show cause against the order being made absolute. The courts have generally refused to look at defen- dant's affidavits to supply a defect in those of the prosecutor. ( A', v. Baldwin, 8 A. & E. 169.) For the rule is that the prosecutor can at the argument refer to no document which does not appear on the face of the order itself to have been read at the first application. (B. v. Woolmer and another, 12 A. & E. 422.) But Lord Kenyon, in B. v. Mein, 3 T. R. 597, and Blackburn, J., in B. v. Stanger, L. R. 6 Q. B. 355 ; 40 L. J. Q. B. 90 ; 19 W. R. 640 ; 24 L. T. 266, expressed an opinion that the court might look at any evidence law- fully before them for any purpose they pleased. The prosecutor must also swear to his innocence in all particulars of the charge contained in the libel. (B. v. Webster, 3 T. R. 388.) For although at the trial of the information when granted truth will be no "defence, except under Lord Campbell's Act, still it is " sufficient cause to prevent the interposition of the court in this extraordinary man[*612] ner ;" they will leave the prosecutor to proceed by way of indictment in the ordinary course. (B. v. Bick- erton, 1 Stra. 498 ; B. v. Draper, 3 Smith, 390.) If there is no specific charge in the libel, no such affidavit is neces- sary (B. v. Williams, 5 B. &.Ald. 595), and it has also been dis- pensed with in other special circumstances. But as a rule there must be a specific denial on oath of the particular charges, even where it is a duke that is aspersed. (B. v. Ilaswell and Bate, 1 Dougl. 387.) If a general charge be made and a specific instance alleged, the affidavit must expressly negative not only the general charge, but also the specific instance. (B. v. Aunger, 12 Cox, C. C. 407.) The affidavits should be sworn with no heading or title. They should not contain irrelevant or improper matter ; if the prosecutor abuses the alleged libeller or shows an animus against him, the court will very probably reject the application. (R. v. Bum, 7 A. & E. 190.) The order nisi, if granted, should be drawn up " Upon reading " the alleged libel and the affidavits and all other documents to which it is desired to refer on the argument. It should be personally served on the defendant. Argument. The defendant now shows cause. He generally files affidavits in reply. It is open to him to maintain that the libel is true. (B. v. Eve and Parlby, 5 A. & E. 780 ; 1 K & P. 229.) See ante, p. 611.) He may also contend that the libel complained of did not apply to the relator. (B. v. Barnard, Ex parte Lord B. Gower, 43 J. P. 127, ante, p. 133.) This decision is perhaps to be regretted ; as it (547) 476 PRACTICE AND EVIDENCE. opens a door by which a libeller may escape punishment, provided be is careful not to expressly name his victim in the first place, and not too scrupulous to swear a falsehood afterwards. The writer of a libel may richly deserve punishment although it may not be clear to whom he intended the libel to apply ; and the court in granting a criminal information regards the interests of public morality and order rather than those of the individual prosecutor. (See 3 Times L. R. 255.) If the order be discharged on the merits, the court generally gives the defendant his costs. And no second application may be made to the court, even upon additional affidavits {li. v. Smithson, 4 B. & Ad. 862), except in very peculiar circumstances, as where the only person who had made an affidavit on behalf of the defendant on the argu- ment of the first order has since been convicted of perjury in respect of such affidavit. {R. v. Eoe and Parlby, 5 A. & E. 780 ; 1 N. & P. [*613] 229.) But though the prosecutor cannot apply a second time for a criminal information, he can still prefer an indictment in the ordinary way {per Lord Denman, in R. v. -Cockskaw, 2 N. & Man. 378) ; though he cannot as a rule bring an action {ante, p. 458.) Compromise. Frequently, however, the defendant files exculpatory affidavits, apologizing to the prosecutor, withdrawing all imputations upon him, and entreating the mercy of the court. When this happens, the prosecutor is generally quite satisfied ; he has obtained all he desired : and by no means courts the expense and notoriety of a prolonged criminal trial. But the court is not disposed on that account merely to allow the proceedings to drop, even at the request of the prosecutor ; and in more than one recent case the Queen's Bench Division have compelled a reluctant prosecutor to take a rule in the interest of the public. Having invoked the aid of the crimi- nal law, it is his duty not to abandon the proceedings merely because his own private purpose is attained. (See R. v. " The World;' 13 Cox, C. C. 305.) Trial and Costs. If the order be made absolute, the prosecutor must enter into a recognizance to effectually prosecute the information and to abide by and observe the order of the court. The amount of recogniz- ance is fixed by r. 46 of the Crown Office Rules, 1886, at £50. (But see 4 Wm. & M. c. 18, s. 1, and R. v. Brooke, 2 T. R. 190.) The information must set out the libel, &c, with all the certainty and precision of an indictment. (See Precedents Nos. 93, 96, post, pp. 673, 676.) As soon as it is filed a copy must be served on the defendant. The defendant must appear thereto within the times specified in rr. 83 — 89 of the Crown Office Rules, 1886 ; and see r. 44. If he does not he maybe attached under a judge's warrant (48 Geo. III. c. 58, s. 1). After appearance the defendant has ten days within which to plead or demur. (Crown Office Rules, 1886, r. 131.) (548) TRIAL AND COSTS. 477 His plea is duly entered on the record, which is then made up and sent down for trial to the county in which the libel was published, unless a trial at bar be demanded. The record may be amended by a judge at chambers after plea and before trial. (A', v. Wilkes (1764 — 1770) 4 Burr. 2568; 2 Wils. 151.) The trial of an infor- mation for libel in all respects resembles the trial of an indictment ; save that in ex officio informations, the counsel for the Crown (whether the Attorney-General [* 614] himself or any one appear- ing for him), has the right to reply, although the defendant calls no witness. {R. v. ILome,'-20 How. St. Tr. 660 ; 1 1 St. Tr. 264 ; Cowp. 672.) The trial must take place within one year after issue joined ; and if not, or if the prosecutor enters a nolle prosequi, the court, on motion for the same, may award the defendant his costs to the amount of the recognizance entered into by the prose- cutor on filing the information. (Crown Office Rules, 1886, r. 49.) If on any information by a private prosecutor for the publication of any defamatory libel, judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sus- tained by the said defendant by reason of such information, {lb. r. 50.) And the judge at the trial can not in this case deprive the successful defendant of his costs by certifying that there was reason- able cause for the information. (R. v. Latimer, 15 Q. B. 1077 ; 20 L. J. Q. B. 129 ; 15 Jur. 314.) The master of the Crown Office taxes the costs under a side-bar rule ; and he may allow costs incurred by the defendant previously to the filing of the informa- tion. (E. v. Steel and others, 1 Q. B. D. 482 ; 45 L. J. Q. B. 391 ; 24 W. R. 638 ; 34 L. T. 283 ; 13 Cox, C. C. 159 ; (C. A.) 2 Q. B. D. 37 ; 46 L. J. M. C. 1 ; 25 W. R. 34 ; 36 L. T. 634.) On such taxation execution issues in the ordinary way. (7?. v. Latimer, ubi supra.) There is no power, however, to condemn the defendant to pay the cost of the prosecution, if he be convicted or plead guilty, unless indeed he files a special plea of justification under Lord Campbell's Act, in which case he will have to pay the costs incurred by reason of that plea. (See 6 & 7 Vict. c. 96, s. 8, p>ost, p. 718 ; andr. 50 of Crown Office Rides, 1886.-) (549) APPENDIX A. t * 615 PRECEDENTS OF PLEADINGS. CONTENTS. I. Pleadings in Actions of Libel and Slander. Statements of Claim. 1. Character of a Servant. 2. Words in a Foreign Language. 3. Libellous Placard. 4. Reading a Libel aloud. 5. Showing an Anonymous Letter. (Special Damage.) 6. Libel on a Town Clerk. 7. Libel on a Solicitor. (Injunction.) 8. Libel on a firm of Architects. 9. Words imputing a Crime. «,.,,* 10. Words imputing a Contagious Disorder. (Special Damage.) 1L Slander of a Clergyman. 12. Slander of a Medical Man. 13. Slander of a Solicitor. (Injunction.) 14 Slander of a Trader in the way of his Trade. (Special Damage.) 15. Ditto. Ditto. Ditto. 16. Words imputing Insolvency. (Special Damage.) 17 Words not Actionable without proof of Special Damage. 18. Action by Husband and Wife for Slander of the Wife. 19. Notice of Action. 20. Summons for Particulars. 21. Particulars. Defences, &c. 22. Traverses. 23. Ditto. 24. Objection in point of Law. r*6161 25. Bond fide comment on a matter of Public Interest. 26. Ditto. Ditto. 27 Ditto. Ditto. 28. Ditto. Ditto. (Correction.) 29! Reply to No. 28. 30. No Publication. (No Slander.) 31. No Conscious Publication. (Newsvendor.) 32. Reply to No. 31. 33. Innoc mt Publication of a Libellous Novel. 34. No Conscious Publication. (Madness.) 35. Words spoken in jest. 36. Justification. 37. Justification of the words without the alleged meaning. 38. Justification of a portion of a Libel. 89. Reply thereto. 40. Justification and Privilege. (550) CONTENTS. 479 41. Absolute Privilege. (Litigant in person.) 42. Absolute Privilege. (Witness.) 43. Absolute Privilege. (Military Duty.) 44. Answer to Confidential Inquiries. 45. Master and Servant. 46. Adviee to one about to Marry. 47. Communication Volunteered. 48. Offer of Reward for Discovery of (Mender. 49. Complaint of Plaintiff's misconduct. 50. Claim of right. 51. Reply thereto. 52. Self-Defence. 53. Common Interest. (Church Members.) 54. Members of the same Committee. 55. Competitors at the same Show. 56. Vendor and Purchaser. 57. Report of a Judicial Proceeding. 58. A shorter form. 59. Report published as a Pamphlet. , 60. Report of a Public Meeting. 61. Reply thereto. 62. Statute of Limitations. 63. Previous Action. 64. Accord and Satisfaction. 65. Ditto. 66. Payment into Court. 67. Words spoken by the Defendant when drunk. 68. Payment into Court and Particulars under Order XXXVI. r. 37. 69. Pleading an Apology. 70. Reply thereto. 71. Notice under s. 1 of Lord Campbell's Act. 72. Plea under s. 2 of Lord Campbell's Act. Interrogatories and Answers. [*617] 73. Interrogatories in Lefroy v. Burnside. 74. Interrogatories in Carter v. Leeds Daily News Co. and Jackson. 75. Interrogatories in Bedford v. Colt. 76. Answers thereto. 77. Interrogatories in Jones v. Richards. 78. Answers thereto. II. Pleadings in Actions for Slander of Title. 79-84. Pleadings in the case of The Western Counties Manure Co v. TJie Lawes Chemical Manure Co. 79. Declaration. 80. Pleas. 81. Republication and Demurrer. 82. Joinder in Demurrer. 83. Plaintiff's points upon the argument of the Demurrer. 84. Interrogatories. 85. Slander of Title to Goods. (Statement of Claim.) 86. Defence thereto. 87. Libel in the nature of Slander of Title. (Statement of Claim.) III. Forms of Pleadings, Notices, etc, in the County Court. 88. Statement of the Plaintiff's Cause of Action in a remitted Action. 89. Notice of Trial of such remitted Action. 90. Notice of Special Defence. 91. Notice under Lord Campbell's Act, s. 1. 92. Notice under Lord Campbell's Act, s. 2. V551) 480 CONTENTS. IV. Precedents of Criminal Pleadings. 93. Information for a Libel on a Private Individual. (R. v. Newman.) 94. Pleas thereto. 95. Replication. 96. Ex Officio Information for a Seditious Libel. (R. v. Home) 97. Indictment for a Blasphemous Libel. 98. Indictment for an Obscene Libel. 99. Indictment for Seditious Words. 100. Indictment for Slanderous Words spoken to a Magistrate whilst in the execution of his Duty 101. Indictment for a Libel on a private Individual at Common Law. 102. Indictment for a Libel on a Dead Man. 103. Indictment under s. 4 of Lord Campbell's Act. 104. Indictment under s. 5 of Lord Campbell's Act. 105. Demurrer to an Indictment or Information. 106. Joinder in Demurrer. 107. Pleas to an Indictment. (R. v. Niblett.) 108. Replication to the above Pleas.. 109. Demurrer to a Plea. 110. Joinder in Demurrer. (552) I. PRECEDENTS OF PLEADINGS IN ACTIONS OF LIBEL AND SLANDER. Statements of Claim. No. 1. [*6i8] Character of a Servant. 1886.— J.— No. 1986. In the High Court of Justice, Queen's Bench Division. Writ issued on the 13th day of Dec. 1886 ; Between Sarah Jones .... Plaintiff, and Henry Roberts and Alice his wife . . . Defendants. Statement of Claim. 1. The male defendant is a gentleman residing at Hall near Evesham in the county of Worcester, and the female defendant is his wife. The plaintiff' is a housemaid and was formerly in the service of the defendants in that capacity. 2. On the 15th day of September 1886 the female defendant falsely and maliciously wrote and published of the plaintiff the words following, that is to say : — " While she (meaning thereby the plaintiff) was with us, she stole a quantity of our house-linen, and pawned it in the High Street." * The plaintiff claims £200 damages. Place of trial : Gloucester. (Signed) . Delivered the 15th day of Jan. 1887. [*619j No. 2. Words in a Foreign Language. 1. The plaintiff is a farmer residing at in the county of Glamorgan. 2. On the day of 1886 the defendant falsely and maliciously wrote [or spoke] and published of the plaintiff in the Welsh language the words following, that is to say : — [Here set out the libel verbatim in Welsh.] 3. The said words mean in English, and were understood by those * No innuendo is necessary. 31 LIB. & SLAN. (553) 482 PRECEDENTS OF PLEADINGS, ETC. to whom they were published [or those who. heard them] to mean: — [Here set out the translation.] Or if an innuendo is necessary as well as a translation : 3. The following is a literal translation of the said words : — " He is a devil of a shaved pig." The defendant meant thereby, and those who read \or heard] the said words understood him to mean thereby that the plaintiff was insolvent and had been stripped of his last penny and was unable to pay his just debts. 4. Whereby the plaintiff was much injured, in his credit and reputation, &c. [Add any special damage that may exist.] And the plaintiff claims £ damages. No. 3. Libel contained in a Placard. 1. The plaintiff is, &c. 2. The defendant on or about the 10th day of January 1887 falsely and maliciously caused to be printed and published a certain libellous placard referring to the plaintiff as follows: — [Here set out the placard.] 3. The defendant caused one of such placards to be posted up opposite the plaintiff's shop, and several others in its immediate neighborhood. 4. The plaintiff has in consequence suffered much annoyance, and has been disgraced and subjected to loss of reputation and of busi- ness, and has suffered in his credit and good name, and has incurred public odium and contempt. The plaintiff claims £1,000 damages. [*620] No. 4. Action for Reading a Libel cdoud. M. and Wife v. JSf. and Wife. 1. On the 8th day of November 1886 the following anonymous letter appeared in the " Dover Express " : — [The letter described a brutal assault on a child by a tipsy woman, who was not in any way identified.] 2. Thereupon the female defendant called the attention of the plaintiff's mother to the said letter, and referring to the said letter falsely and maliciously spoke and published of the plaintiff Mary the words following, that is to say : — " The woman referred to in that letter is Henry's wife." 3. The female defendant meant thereby that the plaintiff Mary had cruelly and brutally and with inhuman violence assaulted and V554) STATEMENTS OF CLAIM. 483 ill-treated her own child, and that she had been guilty of an indict- able offence. 4. Alternatively, the female defendant falsely and maliciously published of the plaintiff Mary the said libellous words set out in paragraph 1 above, by showing them to the plaintiffs mother and reading them aloud to her, representing to her that the woman therein referred to was the plaintiff Mary, meaning thereby the plain- tiff Mary had been guilty of a brutal and inhuman assault upon her own child, and that she had been drunk in one of the public streets of Dover. And the plaintiffs claim £1,000 damages. . No. 5. Shoioing an Anonymous Letter — Special Damage. Robshaw v. Smith, 38 L. T. 423, ante, pp. 207, 208. " 1. The defendant is the general manager of the London and Yorkshire Bank (Limited), and the plaintiff carries on business as a merchant at Street, in the City of London. " 2. Prior to the 31st of May 1877 the plaintiff had had consider- able business transactions with one J. H., also a merchant, from which he had derived large profits, and several such transactions were then in progress between the plaintiff and the said J. H., and the said [*621j J.H. would have continued to have such transactions with the plaintiff hereinafter referred to, and the said J. H. had offered the plaintiff to take him into his employment as manager, upon terms which w r ould have given the plaintiff a salary of from £3,000 to £4,500 per annum for his services. " 3. On the 31st May the said J. H. called upon the defendant, and the defendant then falsely and maliciously published to the said J. H. the following letter of and concerning the plaintiff: — [Here copy letter.] " 4. Owing to the conduct of the defendant set forth in the preceding paragraph, the said J. H. refused to have any further transaction with the plaintiff, and the plaintiff lost the profits he would otherwise have made thereby, and the said J. H. also refused to take the plaintiff into his employment as he would otherwise have clone, and the plaintiff has lost the benefit of such employ- ment and the emoluments thereof, and has been much injured in his credit, reputation and business, and has been otherwise damnified. " The plaintiff claims £2,000 damages." No. 6. Libel on a Town Clerk. " I. The plaintiff has been for thirty -three years, and was at the time of the writing and publication of the libel hereinafter com- i555i 484 ' PRECEDENTS OF PLEADINGS, ETC. plained of, town clerk of the parliamentary and municipal borough of in the county of , and has for many years practised as a solicitor within the said borough, and held various appointments therein. " 2. The defendant is a member of the town council of- the said borough. "3. On the 12th October 1886 the defendant falsely and maliciously wrote and caused to be printed and published of the plaintiff in respect of his said oih'ce of town clerk in a newspaper called the ' Gazette,' which has , a wide circulation in the said borough, the words following, that is to say — [here set out the libel verbatim'] : meaning thereby that the plaintiff had been guilty of gross misconduct in the discharge of his official duties, and had acted as such town clerk in a manner which was unjustifiable and discreditable to him, and had not been neutral, impartial and without respect of person or party in the discharge of his said duties, but had been [* 622] actuated by improper, partial and cor- rupt motives therein, and had lost and was losing the respect, confidence and support of his fellow-townsmen. " 4. By reason of the premises the plaintiff has been injured in his character and reputation, and has suffered damage. " The plaintiff claims £1,000 damages." No. V. Libel on a Solicitor — Injunction. " 1. The plaintiff is a solicitor and the senior partner in the firm of W., G. & T., which carries on an extensive practice in the coun- ties of . The plaintiff holds many public appointments ; he is election agent for , &c. "2. On Jan. 9th 1886 the defendant falsely and maliciously spoke and published of the plaintiff, as such solicitor and election agent as aforesaid, and of and concerning his practice and profes- sion and his mode of conducting the said recent election, and caused to be widely circulated throughout the said counties, the words following, that is to say : — [Here set out the alleged slander, adding any innuendoes which may be necessary.] " 3. Subsequently the defendant falsely and maliciously, and with intent still further to wound and annoy the plaintiff, and to injure him in his said profession, caused a report of his speech, set out in paragraphs above, to be reprinted from a newspaper called 'The — Post,' and published of the plaintiff as aforesaid, and with the meaning aforesaid, in the shape of a leaflet or sheet for distribution. This report was (omitting for the sake of brevity certain words appearing in the original at the place marked with asterisks) as follows : — " ' Those gentlemen ' (meaning the plaintiff amongst others) ' who had worked against him ' (meaning thereby the defendant), ' ■ (556) STATEMENTS OF CLAIM. 485 'and unfairly worked against him, had worked not so much against him as against their own cau.se. * * * It was his fervent hope and prayer, &c. * * * ' "4. The defendant has caused the said leaflet to be very widely circulated in the said counties on the 2ls1 and 22nd days of January 1880, and still continues to circulate and distribute the same. [~*02:3j " Whereby the plaintiff has been injured in his credit and reputation, and in liis said practice or profession, and has otherwise been much injured and damnified. "And the plaintiff claims : — . " ( 1 ) Damages £2,000. "(2) An injunction to restrain the defendant and his agents from further circulating, distributing or otherwise publishing, the said leaflet, or any other reprint of the said speech, or any further or other libels affecting the plaintiff in his profession and offices or otherwise." No. 8. Libel on Architects in the way of their Profession. BOTTERILL AND ANOTHER V. WhYTEHEAD, 41 L. T. 588. 1. The plaintiffs are brothers carrying on in partnership at the profession and business of architects. " 2. At or about the time of the writing and publishing of the libels hereinafter complained of, the plaintiffs were, as the defendant well knew, employed by a committee formed for the restoration of a church at at South Skirlaugh, near Hull, to superintend and carry out the restoration of the said church, and were appointed by the said committee as architects for that purpose. " 3. On the 8th April 1878 after the appointment of the plaintiffs as such architects as aforesaid, the defendant in a letter written and sent to Mr. Bethel, a member of the said committee, falsely and maliciously w r rote and published of the plaintiffs, in relation to their profession and business of architects, and the carrying on and con- ducting thereof by them, the words following, that is to say : — " ' I see in the "' Hull News' of Saturday that the restoration of Skirlaugh Church has fallen into the hands of an architect who is a Wesleyan, and can show no experience in church work. Can you not do something to avert the irreparable loss which must be caused if any of the masonry of this ancient gem of art be ignorantly tampered with. Your great influence would surely have much weight in the matter.' "Meaning thereby that the plaintiffs were incompetent to super- intend and carry out the restoration of the said church, and that, if the [*624] restoration w r ere left in the hands of the plaintiffs, the old masonry of the church would be ignorantly tampered with and would not be treated with proper spirit and feeling, and would suffer from their incompetence and want of skill. (557) 486 PRECEDENTS OF PLEADINGS, ETC. "4. On or about the 10th April 1878, and after the appointment of the plaintiffs as such architects as aforesaid, the defendant, in a letter addressed to Mr. Barnes, the incumbent of Skirlaugh Church, falsely and maliciously wrote and published of the plaintiffs, in relation to their profession and business of architects, and the carry- ing on and conducting thereof by them, the words following, that is to say : — " ' I am annoyed to see that you and your committee have engaged Messrs. B. as architects for .the restoration of your church. Are you aware that they are Wesleyans, and cannot have any religious acquaintance with such work ? ' " Meaning thereby that the plaintiffs were incompetent to under- take and superintend the restoration of the said church, and were unable to carry it out with adequate spirit and feeling. " 5. By reason of the premises and the publication of the said libels the plaintiffs have been and are injured in their said profession and business and have suffered in their credit and reputation as architects. " The plaintiffs claim, &c." No. 9. Words imputing a Crime. The plaintiff has suffered damage by the defendant falsely and maliciously speaking and publishing of the plaintiff on May 8th 1886 the words following, that is to say : — " He is a regular smasher ; " meaning thereby that the plaintiff had uttered, and was in the habit of uttering, counterfeit coin, with the knowledge that such coin was counterfeit, and had been guilty of an indictable offence. And the plaintiff claims £ [N.B. This veiy compendious form can only be used in the simplest cases.] [*625] No. 10. IVords imputing a Contagious Disorder. — Special Damage. "1. At the time of the speaking and publishing by the defendant of the words hereinafter set out the plaintiff was a tailor carrying on business at , and was a married man. " 2. The defendant falsely and maliciously spoke and published of the plaintiff the words following (that is to say) : "I " (meaning the defendant) " hear L." (meaning the plaintiff) "has, &c," thereby meaning that the plaintiff was suffering from a loathsome contagious disorder, and had communicated the same to his wife, and was unfit by reason of such disorder to be admitted into society. " 3. By reason of the premises the plaintiff was injured in his (558^) STATEMENTS OF CLAIM. 48*7 credit and reputation,* and brought into disgrace among his neigh- bours and friends, and has been deprived of, and ceased to receive their hospitality. " 4. The defendant falsely and maliciously spoke and published of the plaintiff, in relation to his said business, the words following (that is to say): "I" (meaning the defendant), "&c," thereby meaning that the plaintiff was in embarrassed pecuniary circum- stances, and unable to meet his liabilities. "5. By reason of the matters in the preceding paragraph men- tioned the plaintiff was injured in his credit and reputation as a tailor, and in his business,* and many persons, who had theretofore dealt tcith the plaintiff in his said business, ceased to deal with him. " The plaintiff claims £ damages." [*The plaintiff was ordered to give particulars of the names of the " neigh- bours and friends" and of the "many persons" referred to in paragraphs 3 and 5 ; but was unable to do so : thereupon the words in italics were struck out of his Statement of Claim.] No. 11. Slander of a Clergyman. " 1. The plaintiff is and at all times hereinafter mentioned was a clergyman of the Church of England, a doctor of divinity and vicar of the parish of . " 2. It is, and was, the custom and the dut}^ of the plaintiff as such vicar as aforesaid to constantly visit the parochial school in his said f*626] parish and to superintend the management thereof. Miss E. B. was and is the mistress of the said school. " 3. Thereupon the defendant on the 25th day of April 1880 well knowing the premises and intending to injure the plaintiff in his good name and credit as a clergyman of the Church of England and to cause it to be believed that the plaintiff had misconducted him- self as such vicar as aforesaid falsely and maliciously spoke and published of the plaintiff in relation to his profession as a clergyman of the Church of England, and to his office as such vicar as afore- said and to the plaintiff's conduct therein, the words following, that is to say : — " Miss E. B. (meaning thereby the said schoolmistress), &c " Meaning thereby that the plaintiff had been guilty of undue familiarity with the said Miss E. B., and had habitually been guilty of conduct unbecoming a clergyman of the Church of Eng- land, and had misconducted himself in his office as such vicar as aforesaid, and was unfit to continue in the same, or to hold any other preferment. " 4. The plaintiff has thereby been greatly injured in his credit and reputation, and in his said profession as a clergyman of the Church of England and in his office as such vicar as aforesaid, and brought into public scandal, ridicule and contempt. " And the plaintiff claims £ damages." (559) 488 PRECEDENTS OF PLEADINGS, ETC. No. 12. Slander of a Medical Man. 1. The plaintiff is a M. R. C. S. of London and Edinburgh, and carries on the profession and business of a surgeon and general medical practitioner in the city of and its neighbourhood. 2. On the 9th day of January 1880 the plaintiff was called in by the defendant to attend to his infant daughter, who was then lying dangerously ill. On the 14th day of January the said daughter died, through no negligence or default of the plaintiff. 3. Thereupon the defendant falsely and maliciously spoke and published of the plaintiff in relation to his said profession and busi- ness and his conduct therein, the words following, that is to say : — "Mr. E. (meaning the plaintiff) killed my child." 4. The defendant meant thereby that the plaintiff had been guilty of feloniously killing his said daughter by treating her improperly [*627] and with gross ignorance and with gross and culpable want of caution and skill, and thus causing or accelerating her death. 5. In the alternative, the plaintiff says that the defendant meant thereby that the plaintiff had been guilty of misconduct and negli- gence in his said profession and business, and had acted in his said profession and business negligently, injudiciously, indiscreetly and improperly, and had not done his duty by his patient, and was unfit to be employed as a medical man. 6. In consequence of the defendant's words the plaintiff has been and is greatly prejudiced and injured in his credit and reputation, and in his said profession and business of surgeon and general medical practitioner. The plaintiff claims, &c. (See Edsall v. Russell, 4 M. & Gr. 1090 ; 12 L. J. C. P. 4.) No. 13. Slander of a Solicitor — Injunction. 1. The plaintiff is a solicitor carrying on business at . He had before the utterance of the slander hereinafter mentioned been retained and employed by the defendant to act for him as his solici- tor in an action which the defendant lost. 2. On the 1st day of April 1884 the defendant falsely and mali- ciously spoke and published of and concerning the plaintiff in rela- tion to his profession as a solicitor the words following : — .... meaning thereby that the plaintiff had been guilty of dishonourable and unprofessional conduct in his practice as a solicitor, and that the said action had been lost through the culpable negligence or fraudulent malpractice of the plaintiff, and that the plaintiff had cheated and defrauded his client, the defendant, and would similarly cheat and defraud other clients. (560) STATEMENTS OF CLAIM. 489 ■ 3. Whereby the plaintiff lias been greatly injured in his credit and reputation, and in his profession as a solicitor. And the plaintiff claims : — ( 1) £500 damages. (2) An injunction to restrain the defendant from repeating the said slander, or any other slanders injuriously affecting the plaintiff in his profession as a solicitor or otherwise. [*628] No. 14. Slander of a Trader in the way of his Trade — Special Damage. 1. The plaintiff" is and at the times hereinafter mentioned was a baker, carrying on business at in the county of . 2. On and about the day of 1886 the defendant falsely and maliciously spoke and published of the plaintiff in the way of his trade and in relation to his conduct therein, the words following, that is to say: — \here set out the slander verbatim]; meaning thereby that the plaintiff cheated or was guilty of fraudu- lent, corrupt and dishonest practices in his said business. 3. In consequence of the said words the plaintiff was injured in his credit and reputation as a baker and in his said business and trade, and X., Y. and Z., who had heretofore dealt with the plain- tiff in his said trade, ceased to deal with him. The plaintiff claims £ ■ — . No. 15. Another Form. 1. The plaintiff is a grocer carrying on business at Coventry, and has suffered damage by the defendant falsely and maliciously speaking and publishing of him in relation to his said business the following words, that is to say: — («) " The big grocer has failed." These words were spoken by the defendant to Mrs. E. B. of C. Street, Leaming- ton, on or about the 30th of May 1883. Mrs. B. asked " Whom do you mean by ' the big grocer ? ' " The de- fendant replied " I mean Mr. L. of Coventry (the plaintiff': a commercial traveller told me in my office that he had failed." (b) " Mr. L. is in Queer Street, and everybody knows it." These words were spoken by the defendant to Mr. C. B. of Co- ventry, accountant, on June 7th 1883 ; and to several com- mercial travellers, and especially to Mr. John Brown wdio travels for the wholesale house of Candy & Co. 2. The defendant thereby meant and was understood to mean that the plaintiff Avas insolvent, and was unable to meet his liabili- (561) *yO PRECEDENTS OF PLEADINGS, ETC. ties, and had filed a petition in the Bankruptcy Court for liquida- tion of his affairs by arrangement or composition with his creditors. [*629] Particulars of Special Damages. (a) In consequence of the defendant's above-mentioned statement to Mr. John Brown, Messrs. Candy & Co. who had previously sup- plied the plaintiff with goods on credit, refused to sell any more goods to the plaintiff on credit, as they otherwise would have done. (b) Since the said slanders were uttered, and in consequence thereof, there has been a general decline in the plaintiff's business and a considerable loss of profit to him. The plaintiff claims £ damages. No. 16. Words imputing Insolvency. — Special Damage. " 1. The plaintiff is a private gentleman owning lands in Shrop- shire. The defendant is a solicitor carrying on business at Shrews- bury. " 2. Between the 13th of November 1886 and the 31st of January 1887 the defendant has repeatedly spoken and published of the plaintiff falsely and maliciously, and with the deliberate intention of injuring and annoying the plaintiff, and causing his creditors to press for immediate payment of their debts, the words following : ' Mr. X. (meaning the plaintiff) is insolvent. He owes money right and left. He cannot face his creditors. He is leaving the county deeply in debt. Does he owe you any money ? You must look sharp after it. He cannot pay. " You had better let me issue a writ against him for the amount.' " 3. The plaintiff has thereby been greatly injured in his credit and reputation, and has also suffered special damage, whereof the following are the particulars : — "(«.) In consequence of what the defendant said to him, one George Morris pressed the plaintiff for payment of the sum of £40 before the agreed period of credit had expired, and has issued a writ against the plaintiff for that amount, which he would not otherwise have done. " (b.) In consequence of what the defendant said to them, the directors of the Shropshire Banking Company applied to the plain- tiff for the sum of £250 for which he was a surety to them for one A. B., and required the immediate payment thereof, which they would not otherwise have done. [*630] " (c.) Mrs. Ann Graham was induced by what the defend- ant said to call in the sum of £350 secured te her by an indenture of mortgage dated the 18th day of July 1884, and made between her and the plaintiff, and to threaten in default of payment to exer- (563) STATEMENTS OF CLAIM. 491 cise the power of sale contained in the said indenture, which she otherwise would not have done. il And the plaintiff claims £500 damages." No. 17. Words not actionable without proof of Special Damage. Chamberlain v. Boyd. " 1. In the month of May last the plaintiff and his brother, Mr. W. C, were candidates for membership of the Reform Club. The defendant was a member of the said club. " 2. Upon a ballot of the members of the said club the plaintiff and his brother were not elected to membership. " 3. Subsequently to the said ballot a meeting of the members of the said club was called to consider a proposed alteration of the rules regulating the election of members, and the defendant took an active and personal interest in the matter. " 4. With a view to retain the regulations as they then existed, and to secure the exclusion of the plaintiff from membership of the said club, the defendant falsely and maliciously spoke and published of the plaintiff, together with his said brother, the words following, that is to say : — [words not actionable per se] meaning thereby that the plaintiff had been guilty of conduct which unfitted him for membership of the Reform or any similar club. " 5. By reason of the said defamatory publications the defendant induced, or contributed to inducing, a majority of the members of the said club to retain the regulations under which the plaintiff had been rejected, and thereby prevented the plaintiff from again seek- ing to be elected to the said club. The plaintiff thus lost the advantage which he would have derived from again becoming a candidate with the chance of being elected, and the plaintiff suf- fered in his reputation and credit.* " The plaintiff claims £5,000 damages." [*631] No. 18. Action by Husband and Wife for slander of the Wife. " 1. The plaintiff George is a licensed victualler, and keeps the " White Horse Inn " at ; the plaintiff Elizabeth is his wife, and assists him in the business of the said inn. " 2. On the 15th day of January last the plaintiff Elizabeth was, in the absence of her husband, managing and superintending the said business at the said inn, when the defendant came into the said * The special damage here alleged was held too remote in the Court of Ap- peal, 11 Q B. D. 407 1 52 L. J. Q. B. 277 ; 31 W. R. 572 ; 48 L. T. 328 ; 47 J. P. 372. * (563) 492 PRECEDENTS OF PLEADINGS, ETC. inn and asked her to serve him with drink, which she refused to do on the ground that he had already had enough. " 3. Thereupon the defendant falsely and maliciously spoke and published of the plaintiff Elizabeth, and in relation to her as manag- ing and superintending the said business as aforesaid, and in the hearing of several customers of the said inn, the words following, that is to say : — ******* Meaning thereby that the plaintiff Elizabeth was an immoral char- acter, and was living in adultery, and was unfit to have the man- agement and superintendence of the said business. " 4. By reason of the premises the plaintiff George was injured in his said business, and the plaintiff Elizabeth was injured in her character and reputation. Particulars of special damage suffered by the plaintiff George. "Each of the plaintiff's claims £50 damages." No. 19. Notice of Action. [7b be served a clear calendar month before action.] To A. B. Esq., Chief Constable of the Borough of I, C. D. of , in the said borough of , in the county of , according to the statute in that behalf, give you notice that I, the said C. D., will at or soon after the expiration of one calendar month from the time of your being served with this notice, cause a writ of summons to be sued out of the Queen's Bench Division of the High Court of Justice, by E. F. of , as [*G32] solicitor for me and on my behalf, against you at the suit of me, the said C. D., and proceed thereupon according to law : For that you, the said A. B., on the day of 18S6 at the Town Hall and at the police station of the said borough of falsely and maliciously wrote and published of and concerning me certain libels contained in a report presented by you to the watch- committee of the said borough, and in general order (358) issued by you to the police force, and also on the said day of 1886, or shortly afterwards, at the police station aforesaid, falsely and maliciously slandered me by reading, or causing to be read, the said general order to the said police force, to my great loss and injury, for which I claim £ damages. Dated this day of 1886. Yours, &c, C. D., of , in the said borough of , in the said county of . (564) ' STATEMENTS O? CLAIM. 493 No. 20. Summons for Particulars. Let all parties concerned attend the Master in Chambers, Central Office, Royal Courts of Justice, Strand, London, on Monday the 21st day of March 1887, at 1 o'clock in the afternoon, on the hearing of an application on the part of the defendant, for an order that the plaintiff do deliver to the defendant, within four days, an account in writing of the particulars, showing when, where and to whom the alleged libel and slanders were written, spoken and published, and also particulars of the special damage alleged in paragraph 5 of the statement of claim, and that in default of the delivery of such par- tieulars the plaintiff be precluded from giving any evidence in sup- port thereof on the trial of this action ; and that the defendant have seven days time to deliver his defence after the delivery of the said particulars. Dated the day of , 18 — . This summons was taken out by Messrs. S. & P., of , solicitors for the defendant. To the plaintiff, or Messrs. R. & F., his solicitors. [*633] No. 21. Particulars. Delivered pursuant to the order of Master Walton, made herein and dated the 21st day of March, 1887. The following are the best particulars the plaintiff can give of the times, places and persons, when, where and to whom the alleged libels and slanders were published, and of the damages sustained by him : 1. The said libel was written by the defendant, and published by him to A. B. of , at , on or about December 29th, 1886, and to C. D. of , at , on or about January 2nd, 1887. The plaintiff is unable at present to name anyone else to whom the said libel was published, but believes that the defendant kept a copy of the said libel and showed it to several other persons, and will deliver further particulars of their names as soon as they are ascertained. 2. The said slanders were uttered in the month of December, 1886, in the presence of G. R., of 20 High Street, in the said city, and his manager, "YV. K., at 20 High Street, aforesaid. 3. The following persons who used formerly to deal with the plaintiff ceased to do so in consequence of the defendant's conduct : M. M. of , O. P. of , &c. The profits of the plaintiff's business must have fallen from £730 to £420 per annum. Dated this 29th day of March, 1887. P. cb P., Solicitors for the plaintiff. To the defendant, or Messrs. S. & P., his solicitors. (.565; 494 precedents of pleadings, etc. Defences. No. 22. Traverses. 1. The defendant never spoke or published the words set out in paragraph 2 of the statement of claim or any of them.* [*634] 2. The defendant never spoke or published the words set out in paragraph 2 of the statement of claim with the meaning therein alleged. 3. The defendant denies that his words in any way referred to the plaintiff. They were not so understood by those who heard them uttered. 4. The plaintiff did not on the day of 1887 (date of the publication) carry on the business of a as alleged in paragraph 1 of the statement of claim. 5. The defendant denies that he spoke or published the said words of the plaintiff in the way of his said business. *The words " falsely and maliciously" must not be traversed, unless pleas of justification and privilege follow ; and even then such a traverse is super- fluous. (Belt v. Lawes, 51 L. J. Q. B. 359.) No. 23. Another Form. 1. In answer to paragraphs 3, 4 and 5 of the statement of claim, the defendants deny that they printed or published* the words therein set forth of or concerning plaintiffs or any of them, as is alleged. 2. In further answer to the said paragraphs the defendants deny that the words therein set forth bear the sense therein given to them. *The words " falsely and maliciously " must not be traversed, unless pleas of justification and privilege follow ; and even then such a tranverse is super- fluous. (Belt v. Laices, 51 L. J. Q. B. 359.) No. 24. Objection in Point of Law. (Rules of the Supreme Court, 1883, Appendix E., Section III. No. 2.) " The defendant says that : — " 1. The defendant did not speak or publish the words. " 2. The words did not refer to the plaintiff. (566) DEFENCES. 495 " 3. The defendant will object that the special damage stated is not sufficient in point of law to sustain action." See ante, p. 536, and Precedents, Nos. 29, 32, 51, post. [*635] No Libel. No. 25. Bond fide Comment on Matters of Public Interest. " The defendant's words did not bear or convey the meaning alleged in paragraph 2 of the statement of claim, or any defamatory meaning ; they were fair comment on two matters then of great public interest in the said boroughs, viz : — the result of the recent General Election of 1885, and the strong probability of another General Election at a very early date." No. 26. Action against a Newspaper Proprietor. Bona fide Comment on a Matter of Public Interest. 1 . The defendant is, and at the time of the alleged grievances was, the proprietor of the Times newspaper. 2. On the evening of the 12th of Febuary 1867, the plaintiff had presented to the House of Lords a petition, making a serious charge against one of Her Majesty's judges ; a debate ensued on the presen- tation of the said petition, and the said charge was utterly refuted. 3. The words set out in paragraph 3 of the statement of claim are a portion of the Parliamentary Report, published in the Times for the 13th of Febuary 1867. They are a fair and accurate report of the proceedings of the House of Lords on the preceding evening, and were published by the defendant bond fide, and without any malice towards the plaintiff. 4. The said petition, the charge it contained, and the said debate were, and are, all matters of general public interest and concern. 5. The words set out in paragraph 5 of the statement of claim are a portion of a leading article which appear in the Times for the 13 of Febuary 1867. The said article was a fair and impartial comment on the matters above referred to, and was published by the defendant bona fide for the benefit of the public and without any malice towards the plaintiff. See Wason v. Walter, L. R. 4 Q. B. 73 ; 8 B. & S. 671 ; 38 L. J. Q. B. 34 ; W. R. 169 ; L. T. 409. (567) 496 PRECEDENTS OE PLEADINGS, ETC. [* 636] No. 27. Matter of Public Interest. Before the publication of the said alleged libel the plaintiff was the general commanding the cavalry division of our army in the Crimea, and the Earl of Cardigan was the general commanding the light cavalry brigade, part of such division ; and during the war disputes arose and complaints were made by each of them of the conduct of the other, in their respective commands, in consequence of which disputes great disasters happened, and great losses of men and horses were sustained. These disputes between the plaintiff and the Earl of Cardigan were injurious to the service, and were matter of public notoriety and of discussion and complaint amongst her Majesty's subjects ; the plaintiff was consequently recalled to E no-land, and her Majesty issued a commission to Sir J. MacNeil and Colonel Tulloch to inquire into the causes of such disasters. The said commissioners made a report, animadverting upon the con- duct of the plaintiff. A second commission afterwards issued to the Board of General Officers, at Chelsea, who also made a report with reference to the matters above mentioned. And the defendant says that, the said reports and all the said matters became and were matters of public notoriety, discussion and interest, and the words complained of are part of an article printed and published in the said newspaper, which was a fair and bond fide comment upon the several matters aforesaid and in reference thereto, and were printed and published by the defendant as and for such comment and without any malicious interest or motive whatever. See Earl of Lucan v. Smith, 1 H. & N. at pp. 482, 483 ; 26 L. J. Ex. 96, n ; Clinton v. Henderson, 13 Ir. C. L. R. App. 43 ; Hort v. lieade, Ir. R. 7 C. L.551. No. 28. The same. Defence. " 1. The defendant admits that he printed and published the words set out in the statement of claim ; but denies that he did so mali- ciously or with the meaning therein alleged or with any other [*637| defamatory meaning. The said words without the alleged meaning are not libellous, but are a bond fide comment on matter of public interest, namely, the conduct of certain persons at a pub- lic meeting called to oppose the London Municipal Reform Bill, at which meeting the plaintiff was a prominent speaker. "2. As to the^ words 'the great Mr. presiding with much (568) DEFENCES. 497 dignity over the Comua rout,' the defendant in the next issue of his paper published the following correction : — \JIere set out the correction. | "3. The rest of the alleged libel in no way refers tothe plaintiff. The 'fugleman ' therein mentioned was not the plaintiff, but another gentleman." No. 20. Reply to No. 28. " 1. The plaintiff joins issue with the defendant upon the defence herein. "2. The plaintiff will object at the trial that paragraph 2 of the defence affords no answer in point of law to the plaintiff's claim." No SUFFICIENT PUBLICATION. No. 30. JSfo Publication. — No Slander. Defence to Claim No. 13. " 1. The defendant denies that the plaintiff was or had at any time been retained or employed by him to act as his solicitor. " 2. The defendant denies that he spoke or published the words alleged or any of them. "3. The defendant denies that he spoke the said words of or con- cerning the plaintiff in the way of his profession, or that the said words bore or were intended to bear the meaning alleged. "4. If the defendant did speak the said words (which he denies). he says that no person other than the plaintiff was present or heard the same. " 5. The defendant will contend that the words which he spoke, if any, were only abuse and did not amount to clef amatory matter." [* 638] No. 31. No conscious Publication. Emmens v. Pottle & Son, (C. A.) 16 Q. B. D. 354 ; 55 L. J. Q. B. 51 ; 34 W. R. 116 ; 53 L. T. 808 ; 50 J. P. 22S ; 1 C. & E. 553. Defence. "1. The defendants deny that they published the alleged libels. " 2. Further and alternatively the' defendants say that they are 32 lib. & si.an. (569) 498 PRECEDENTS OF PLEADINGS, ETC. newsvendors carrying on a large business at 14 and 15, Royal Exchange in the city of London, and as such newsvendors and not otherwise, sold copies of the said periodical called "Money " in the ordinary course of their business and without any knowledge of its contents ; which are the alleged publications." No. 32. Reply to No. 31. " 1. The plaintiff joins issue on the 1st paragraph of the defence. " 2. As to the 2nd paragraph of the defence the plaintiff says that the allegations therein contained are bad in substance and in law, on the ground that even if the defendants sold copies of the said periodical without any knowledge of their contents and in the ordi- nary course of their business as alleged in their defence, still, inasmuch as the defendants sold the said copies as newsvendors for reward in that behalf, the said allegations disclose no answer to the claim of the plaintiff." No. 33. Innocent publicatio?i of a Libellous Novel. 1. The defendants admit that they printed and published the book or novel in the statement of claim mentioned, but deny that they did so maliciously. The defendants printed and published the said book or novel for the writer thei*eof, reasonably and bona fide believing the same to be a work of pui-e fiction. The defendants were not then aware and do not now admit that the said book or novel alluded to the plaintiffs or to any other living person. It may be doubted whether this is a defence to the action or only a plea in mitigation of damages ; see ante, pp. 160, 435 ; R. v. Knell, 1 Barnard. 305 ; Smith v. Ashley, 52 Mass. (11 Met.) 367. [*639] No. 34. No conscious Publication.— 3fadness. " 1. The defendant does not admit that he ever spoke or published the words complained of in paragraphs 3 and 4 of the statement of claim. " 2. Throughout the month of April and the early part of May 1879 the defendant was suffering from acute mania, brought on by overwork; he has no recollection of having spoken any such words as alleged either then or at any other time. If, however, the defend- ant did in fact utter any such words (which he does not admit), (57 ) DEFENCES. 4 00 they were not spoken intentionally or maliciously, but solely in con- sequence, and under the influence, of the said mania ; as all who heard the said words then well knew. There is and was no foun- dation whatever for any such charge ; and the defendant unreserv- edly withdraws all imputation on the plaintiff's character, and exceedingly regrets that he ever spoke the said words (if in fad he did speak them, which he does not admit)." It may be doubted whether this is a good defence, or only a pleading in mitigation of damages. A somewhal similar plea of drunkenness will be found post, JNo 67. See ante, p. 406. No. 35. Words spoke/ i in Jest. Defence to Claim JVo. 9. 1. The defendant admits that he spoke and published the words set out in paragraph 2 of the statement of claim, but denies that he spoke them with the meaning in that paragraph alleged. 2. The defendant is, and at all times hereinafter mentioned was, clerk to Mr. N, a wholesale baker. The plaintiff is one of Mr. N.'s retail customers. It is and was one of the duties of the defendant as such clerk to call on Mr. N.'s retail customers every Saturday morning and receive the money due for the bread delivered to them in the course of the week. 3. On the morning of Saturday March the 27th 1886 the defend- ant called upon the plaintiff and took the money for the bread delivered to him during the week. Amongst the change then given [*640] by the plaintiff to the defendant was a counterfeit florin. Neither the plaintiff nor the defendant knew or observed at the time that the florin was counterfeit. 4. Later in the day when the defendant was paying the money over at the office, his employer, Mr. N, discovered that the said florin was counterfeit. The defendant thereupon took the said florin back to the plaintiff's shop, and the plaintiff gave him without demur two good shillings in exchange therefor. 5. On the morning' of Saturday May the 8th 1886, when the defendant called on the plaintiff as usual, the plaintiff again gave the defendant a counterfeit florin amongst the money for the bread. And again neither the plaintiff nor the defendant knew or observed at the time that the florin was counterfeit. 6. Again, wdien the defendant was paying the money over to his employer at the office; Mr. N. discovered that the florin was counter- feit. Thereupon the defendant, recollecting the similar occurrence mentioned in paragraphs 3 and 4 above, exclaimed : — " Why, that's the second bad florin Mr. H. has passed to me within the. last six weeks. He's a regular ' smasher' !" 7. The defendant spoke these words as a joke, and never intended seriously to impute to the plaintiff any criminal offence. (571) 500 PRECEDENTS OF PLEADINGS, ETC. 8. The only persons who were present at the time or who heard the said words were the defendant's employer, Mr. N., and a fellow- clerk of his, one David Griggs. Both Mr. N. and David Griggs were aware of the circumstances detailed above, and knew to what the defendant was referring, and understood that he spoke in joke, and did not intend to make any serious charge against the plaintiff. [N.B. — This is a conciliatory line of defence. The plaintiff , if well advised, will at once settle the matter amicably. If he does not, the defendant is almost sure of a verdict. (See.ante, pp. 106, 108; Thompson v. Bernard (lCamp. 48). But sometimes a defendant, if foolish and angry, insists on setting up a more vindictive defence. He denies uttering the words, so as to compel the tell-tale Griggs to come into the box to be cross-examined ; and he then proceeds to justify. These tactics will infallibly lead to a verdict for the plaintiff with heavy damages.] [*641] Justification. No. 36. Another Defence to Claim No. 9. 1. The defendant does not admit that he spoke or published the words set out in the statement of claim. 2. The said words are true in substance and in fact. On March 27th 1880 the plaintiff uttered and passed to the defendant a coun- terfeit florin, well-knowing the same to be counterfeit. On May 8th 1880 the plaintiff uttered and passed to the defendant another counterfeit florin, well-knowing the same to be counterfeit. [/State any other instances in which the plaintiff 'passed bad coin to the de- ft ndant or others.'] Wherefore the defendant says that the plaintiff is a regular " smasher," and has uttered, and has been in the habit of uttering, counterfeit coin, well-knowing the same to be counterfeit ; and has been guilty of divers misdemeanours. No. 37. Justification of the Words without the cdleged meaning. "3. The defendant denies that he spoke or published the words set out in paragraph 5 of the statement of claim with the meaning therein alleged, or at all with reference to the plaintiff's trade of a builder or his mode of conducting the same, or in any defamatory sense. The said words, without the said meaning, and according to their natural and ordinary signification, are true in substance and in fact. Particulars are delivered herewith. They exceed three folios." (See ante, p. 177.) (572) DEFENCE. 501 No. 38. Justification of a portion of a Libel. Leyman v. Latimek and othees, 3 Ex. I). 15, 352 ; 47 L. J. Ex. 470 ; 25 W. R. 751 ; 20 W. R. 305 ; 37 L. T. 300, 819. Defence. 1. The defendants do not admit that the plaintiff is the proprietor and editor of the Dartmouth Advertiser newspaper. [*642] 2. As to such portion of the said words as alleges that the plaintiff is a felon editor, the defendants say that the same is true in substance and in fact. The plaintiff has been convicted of felony, and was sentenced to twelve months' hard labour for stealing feathers. 3. As to the residue of the said words the defendants say that the same were parts of certain articles printed and published in the defendants' said newspaper, each of which was a fair and bond fide comment upon the conduct of the plaintiff in his public character as the nominal editor of the Dartmouth Advertiser, a public news- paper, and was printed and published by the defendants as and for such comment, and without any malicious motive or intent whatever. No. 39. Reply to above Defence. " 1. The plaintiff joins issue upon the 1st and 3rd paragraphs of the defence. " 2. As to the 2nd paragraph of the defence, the plaintiff (so that such admission be not in any way extended or taken to mean that he ever was, in' fact, guilty of the offence referred to) admits the allegation therein contained. But the plaintiff further says that he has never been convicted of felony save on that one occasion men- tioned in the said paragraph. On that occasion he was convicted of the supposed felony by a Court duly having jurisdiction in that behalf, the Court of Quarter Sessions for the county of Cornwall ; and the said Court in the exercise of such jurisdiction, adjudged that, as a punishment for the said supposed felony, the plaintiff should be imprisoned and kept to hard labour for twelve calendar months. The said conviction took place several years ago, and the plaintiff, as the defendants well knew, duly endured the punishment to which he was so adjudged as aforesaid, for the said supposed fel- ony, and thereby became, and was, and has ever since been, and is, in the same situation as if a pardon under the Great Seal had been granted to him as to the said supposed felony whereof he was con- victed as aforesaid." (573) 502 PRECEDENTS OF PLEADINGS, ETC. [*643] No. 40. Justification and Privilege. Defence to Claim No. 1. 1. The defendants admit that the defendant Alice wrote and pub- lished the words set out in paragraph 2 of the statement of claim. 2. The said words are true in substance and in fact. While the plaintiff was in the service of the defendants, to wit, on the 18th day of March 1886 she stole two pair of sheets and one counterpane, of goods and chattels of the defendant Henry, and pawned them at the shop of John Smith, No 28 High Street, Evesham ; wherefore the defendants, as they lawfully might, discharged the plaintiff from their service. 3. Subsequently the plaintiff was desirous of entering into the service of Mrs. M., of , in the county of Warwick ; and Mrs. M. wrote a letter to the defendant Alice inquiring as to the plaintiff's character, and asking especially why she left the defen- dants' service. 4. Thereupon it became and was the duty of the defendant Alice to write to Mrs. M., telling what she knew as to the plaintiff's character, and stating the reason of her dismissal. In accordance with such- duty the defendant Alice wrote to Mrs. M. a letter con- taining the words complained of. The said words were written in answer to Mrs. M.'s inquiries under a sense of duty and without malice and in the bond fide belief that the charge therein made was true ; Avherefore the defendants say that the said letter is privileged by reason of the occasion on which it was written. Privilege. No 41. Absolute Privilege. — Litigant in Person. " Before the alleged slander was spoken the plaintiff had issued a writ against the defendant claiming an account, and had taken out a summons in the said action for an account, which on November 12th 1 885 came on for hearing before Mr. E. A., the District Registrar for . The defendant, who is a solicitor, appeared in person before the said Registrar to oppose the said summons, and the said words were spoken, if at all, to the said Registrar in the course of argument during the hearing of the said summons, and are therefore absolutely privileged." [*644] No. 42. Absolute Privilege. — Witness. The said words were spoken by the defendant whilst in the witness- (574) PLEAS OF PRIVILEGE. 503 box during his examination on oath as a witness in the course of a judicial proceeding before an alderman at GuildhalL (See Seaman v. NethercUft, 2 C. P. D. 5:5 ; 40 L. J. C. P. 128 ; 25 W. R. 159 ; 35 L. T. 784) No. 43. Absolute Privilege. — Military Duty . The said words are part of an official report written by the de- fendant in accordance with his military duty for the information of his military superiors, and published by him in the discharge of his said duty to such military superiors and not otherwise. (Dawkins v. Lord Paulet, L. R. 5. Q. B. 94 ; 39 L. J. Q. B. 53 ; 18 W. R. 330 ; 21 L. T. 584.) Qualified Privilege. For a plea of privilege on the ground that the alleged libel was written as a " character " for a servant, see ante, Precedent, No. 40. No. 44. Answer to Confidential Inquiries. Defence to Claim iVb. 5. " 1. The statements contained in the said letter are true in sub- stance and in fact, according to the fair and ordinary meaning of the words used in the said letter. " 2. The publication of the said letter to H., if made, was privileged, and was made bond fide and without malice. H. having an interest in certain business transactions, in which the plaintiff and the defendant's bank were concerned, made inquiries of the defendant as to the plaintiff, and it was in answer to such inquiries that the publication, if any, of the said letter took place." [*045] No. 45. Master and Servant. " The plaintiffs at the times mentioned in the 4th paragraph of the statement of claim were employed as labourers by a certain Mr. M., who made certain inquiries of the defendant as to the con- duct of the plaintiffs and as to certain facts that were within the knowledge of the defendant and were not within the knowledge of the said Mr. M. And it thereupon became and Avas the duty of (575) 504 PRECEDENTS OF rLEADINGS, ETC. the defendant to state the said facts to the said Mr. M. Such statements are the alleged slanders ; hut they were made hand fide in the discharge of the said duty and in answer to the said inqui- ries, and in the honest belief that the facts so stated were true and without any malice towards the plaintiffs or either of them ; wherefore the defendant says that they were privileged hy reason of the occasion on which they were made." No. 46. Advice to one about to marry. Before and at the time of the alleged grievances the defendant was the son-in-law of the Mrs. Hawkins mentioned in paragraph 3 of the statement of claim. She informed the defendant, as the fact was, that she was ahout to marry the plaintiff. Thereupon the defendant spoke the said words confidentially to the said Mrs. Hawkins, without malice, and in the honest desire to protect her private interests, and his own. The defendant at the time bond fide believed in the truth of what he said. {Todd v. Hawkins, 8 C. & P. 88 ; 2 Moo. & Rob. 20.) No. 47. Communication Volunteered. 2. The defendant was employed by the plaintiff to work at the house of Mrs. M. mentioned in the statement of claim, during her absence from home. Whilst he was so employed, it came to his knowledge that the plaintiff had, in collusion with the servants of the said Mrs. M., removed certain goods of hers from the premises and sold them. It thereupon became the duty of the defendant to [*646] communicate these facts to the said Mrs. M., and he did so on her return, honestly believing that every word he said was true. And the defendant says that these communications are the alleged slanders, if any, and that the same were made bond fide in the dis- charge of the said duty, and not maliciously, nor with intent to injure the plaintiff, and were and are therefore privileged. No. 48. Offer of Reward for discovery of Offender. Defence to Claim No. 3. "The defendant admits the publication of the placard referred to in paragraph 2 of the statement of claim, but denies that the same was false or malicious ; the defendant also denies the alleged mean- (576) PLEAS ()K PRIVILEGE. 505 ing, and mivs that the several matters staled in the said placard are true in substance and in fact, and were published by the de- fendant for the purpose of endeavouring to discover the person who committed the assault referred to in the said placard, and with the bond fide object and intention of bringing Mich person to jus- tice and of prosecuting him to conviction and not otherwise. ' No. 49. Complaint of Plaintiff s Misconduct. " The plaintiff is the nephew of one of the defendant's tenants, Mrs. B., and at the date of the alleged slander was lodging with her in the house she rented of the defendant. On June 3rd 1886 the defendant, from the hill above his house, saw a young man, whom he then believed to be the plaintiff, jump out of the kitchen window of Mrs. B.'s house and enter an orchard of the defendant's, and commence to steal the defendant's apples. As soon as the defendant approached, the young man ran away. Thereupon the defendant, as lie lawfully might do, went to Mrs. B., told her what he had seen, and complained to her of the plaintiff's conduct. This communication and complaint is the alleged slander ; and the defendant says that it was privileged by reason of the occa- sion on which it was uttered. The defendant bore the plaintiff no malice, and honestly believed at the time that what he said was true. [* 647] "No. 50. Claim of Right. "5. The defendant's husband died in November 1883, having appointed the plaintiff executor and trustee of his last will. And the plaintiff, as such executor and trustee, took possession of and was proceeding to sell by auction' not only the furniture, which was the property of his testator at the time of his death, but also cer- tain other furniture which was the separate property of the defendant. Thereupon the defendant, as she lawfully might do, attended the said auction for the purpose of asserting her claim to her separate property, and of disputing the plaintiff's right to sell the same. And the defendant then spoke ami published the said words, if at all, bona fide, and in the honest belief that they were true, and without any malice towards the plaintiff ; wherefore the defendant says that the said words were privileged by reason p of the occasion on which they were uttered." And see Precedent, No. 86, post, p. 667. (577) 500 PRECEDENTS OF PLEADINGS, ETC. No. 51, Reply to No. 50. " 1. The plaintiff joins issue on the defence. " 2. The plaintiff will object that the occasion set forth in paragraph 5 was not and is not shown to have been privileged." No. 52. Self-defence. "The plaintiff in May 1886 published and widely distributed a pamphlet entitled ' The case of Salem Chapel .' This pam- phlet contained serious charges against the defendant, both person- ally and as secretary and one of the deacons of the said chapel. Therefore the defendant, as he lawfully might do, published the words set out in paragraph 5 of the statement of claim in reply to the said pamphlet published by the plaintiff, and bona fide for the purpose of vindicating his character against the plaintiff's attack, and in order to prevent the plaintiff's said charges from operating to his prejudice, and in reasonable and necessary self-defence, and without any malice towards the plaintiff. The said words are therefore privileged." [* 048] No. 53. Common Interest. — Church Members. 1. The words set out in paragraph 2 of the statement of claim were part of a requisition summoning a meeting of the members of the English Baptist Church at , which was signed by 122 of such members. This requisition was addressed and sent solely to members of the said church, who had a common interest in the matters therein referred to, and was published bona fide and without malice, and under a sense of duty, and was therefore privileged. 2. The plaintiff subsequently, on Friday December 7th 1883, wi*ote and published in the said newspaper a long letter attacking the conduct of those who had signed the said requisition, and con- taining erroneous statements as to their object in convening the said meeting ; wherefore the defendant, as he lawfully might do, wrote and published the words set out in paragraph 3 of the state- ment of claim in answer to the said letter written by the plaintiff, and with the bona fide intention of explaining the true object of the said meeting, and of correcting the said erroneous statements, and not otherwise. The said words are strictly an answer to the charges made by the plaintiff against the defendant, and the other conveners of the said meeting, and were published without malice 1578) PLEAS OF PRIVILEGE. 507 and in reasonable and necessary self-defence, and wire and are therefore privileged. No. 54. Members of the same Committee. "The defendant is a Vice-President of the said Association and the said A. B. to whom alone the defendant published the said letter was at the date of such publication the Honorary Secretary of the said Association. The. defendant learnt for the first time in the month of January 1886, from the fly-leaf of one of the pamphlets published by the said Association, that the plaint ill' had been elected a member of the Executive Committee of the said Association. The defendant bona fide believed that the plaintiff was not a fit person to occupy that position. Both he and the said A. B. had a common interest in securing that no unfit person should serve on the Execu- tive Committee of the said Association. The defendant also had a right to object to his own name and the plaintiff's appearing together on the said' fly-leaf [* G49] as fellow-officers of the same Association. It thereupon "became and was his duty to write the said letter to the said A. B., and he wrote it in the honest discharge of said duty and in the bond fide belief that the statements therein contained were true, and without any malice towards the plaintiff." No. 55. Competitors at a Poultry Shoio. The plaintiff and defendant are both members of the " Hemel Hempstead Poultry Club," and were competitors at the Annual Show of the club in 1886. Complaints were made during the show of the plaintiff's conduct as such competitor, and eventually several other members lodged a written protest against the plaintiff being allowed to compete. By the rules of the club it was the duty of the committee to investigate this dispute. The said committee wrote to the defendant, who had not signed the protest, and re- quested him to state to them all he knew or had heard as to the said complaints and as to the other matters referred to in the said protest. Thereupon the defendant in. compliance with such request wrote the letter which is the alleged libel. Such letter was written by the defendant without any malice towards the plaintiff and with the sole object of guiding and assisting the said committee in their inquiries, and in the honest belief that every statement therein contained was true, and was a communication math' bond, fide on a matter in which the defendant had an interest and in reference to which he had a duty to perform, and was published only to the said committee who had a corresponding interest and duty in that behalf. (579) 508 PKECEDENTS OF PLEADINGS, ETC. No. 56. Vendor and Purchaser. Before the publication of the alleged slander the defendant had entered into a written contract to purchase a field from a friend of his, Mr. K. Mr. K. employed the plaintiff as his solicitor to act for him in the matter. The plaintiff unnecessarily delayed the com- pletion of the said purchase and omitted to answer the defendant's requisitions for an unreasonably long time, though both Mr. K. and the defendant [* 650] were anxious for a speedy settlement. In consequence of the plaintiff's delay, the date originally fixed for completion passed ; and then the plaintiff persuaded Mr. K. to claim from the defendant interest on the purchase-money, which the defendant refused to pay on the ground that his money had for months been lying idle at the bank, and that the matter would have been completed on the day originally fixed, had the plaintiff used reasonable dispatch. This dispute still further delayed the com- pletion of the said purchase, and also greatly increased the amount of the costs which both Mr. K. and the defendant would have to pay their respective solicitors. Both Mr. K. and the defendant had a common interest in keeping down the amounts of the said costs, and in effecting a prompt and amicable settlement of the said dis- pute, and in the speedy completion of the said purchase. There- upon Mr. K. wrote a letter to the defendant inquiring as to these matters, and asking especially as to the cause of the unusual delay. It thereupon became and was the duty of the defendant in answer- ing the said letter to state confidentially to Mr. K. his opinion as to the way in which the plaintiff was conducting this business ; and in discharge of such duty the defendant wrote and published the letter set out in paragraph 2 of the statement of claim. This letter was published by the defendant to the said Mr. K. alone, and related solely to the said matters in which the defendant and Mr. K. had such* common interest as aforesaid, and was written in fur- therance of such common interest, and in answer to the said letter from Mr. K., and under a sense of duty, and without malice, and in the bond fide belief that every word contained in the said letter was true, and not otherwise, and is therefore privileged. No. 57. Report of a Judicial Proceeding. 1. The defendant is the proprietor of the County Gazette. 2. On the day of 1886 the plaintiff applied to the bench of magistrates for the division of the said county, at a special licensing sessions, for a spirit licence. This application the magistrates refused. ?>. On the day of 1886 the defendant published as usual in the said Gazette a report of the proceedings before the said magistrates on the preceding day, including an accurate and im- ^580) PLEAS Or PEIVILEGE. 509 partial [* 651] account of the plaintiff's application and the reasons stated by the bench for their refusal, which is the alleged libel. 4. Such account w:is published by the defendanl bond fide, and without malice, and for the public benefit, and in the usual course of the defendant's business and duty as a public journalist, and was and is a correct, fair and honest report of the said proceedings. No. 58. A shorter 'Form. "The said words formed part of a fair and accurate report of certain proceedings in the Westminster Police Court upon a charge of theft brought against the plaintiff, and were published bond fide and with- out malice in the course of the defendant's business as journalist, and are therefore privileged." No. 59. Report of a Judgment published as a Pamphlet. MacDougall v. Knight & Sox, 17 Q. B. D. 636 ; 55 L. J. Q. B. 464 ; 34 W. R. 727 ; 55 L. T. 274. " 1. The defendants admit that they published of the plaintiff a pamphlet which is a verbatim report of the judgment of the Honour- able Mr. Justice North, given on the 30th day of June 1884 in the action of MacDougall v. Knight and Son, and which really gives all the information necessary to be known by anyone feeling an interest in the matter. But the defendants deny that they did so falsely, or' maliciously, or that they distributed the said pamphlet broadcast in the city of Bath, or the counties of Somerset and Gloucester, or elsewhere, or at all. " 2. The said pamphlet contained the words set out in paragraph 2 of the statement of claim. The said words were in fact spoken by the Honourable Mr. Justice North in delivering judgment in the said action ; but the defendants do not admit that he or they pub- lished the said words with the meanings alleged in the said paragraph. "3. The defendants are auctioneers and upholsterers carrying on business at Bath, and having a large number of customers resident in Bath and the neighbourhood. The plaintiff brought the said action [*652] against the defendants in the Chancery Division of the High Court of Justice, charging the defendants with breach of contract, misrepresentation and breach of faith. The said action was assigned for trial to the Honourable Mr. Justice North, who after a trial which lasted five days gave judgment in favour of the defendants. The said pamphlet is a fair, accurate and honest report of the said (581) 510 PRECEDENTS OF TLEADINGS, ETC. judgment of the Honourable Mr. Justice North, and was published by the defendants bond fide and with the honest intention of making known the true fads of the case, and in order to protect their reputation and their said business, and in reasonable self-defence, and without any malice towards the plaintiff." No. GO. Report of a Public Meeting privileged by virtue of Sect. 2 of the Newspaper Libel and Registration Act, 1881. The words set out in paragraph 4 of the statement of claim were printed and published in a newspaper and were part of a report of the proceedings of a public meeting which was lawfully convened for a lawful purpose and open to the public, and such report was fair and accurate and was published without malice, and the pub- lication of the said words was for the public benefit. It is not sufficient to allege that the publication of the said report was for the public benefit (Pankhurst v. Sowler, 3 Times L. R. 193, ante, p. 381). No. 61. Reply to above. The defendant has refused to insert in the newspaper in which the report containing the said words appeared, a reasonable letter or statement of explanation or contradiction by or on behalf of the plaintiff. [*653] No. 62. Statute of Limitations. The alleged cause of action did not accrue within six years before^ this suit. Or in the case of slander actionable per se: The wordsjcomplaiued of were not spoken within two years before this suit. (See ante, p. 520.) Or, The defendant will rely upon the Statute of Limitations (21 Jac. I. c. 16). No. 63. Previous Action. The plaintiff heretofore, to-wit, on the day of 1887 (date of writ), sued the defendant in the Division of this (582) PLEAS OF PRIVILEGE. 511 Honourable Court, for the same cause of action as is alleged in the statement of claim herein ; ami such proceedings were thereupon had in that action that the plaintiff afterwards by the judgmenl of the said court recovered againsl the defendanl ,£' for the Baid cause of action, and his costs of suit in that- behalf ; and the said judgment still remains in force. [State in the margin of the plea the date when such judgment n-os signed, and tin number of tin roll in which such proceedings are entered. (Reg. Gen. Hilary Term, 1853, r. 10.)] A plea that judgment vas recovered against a joint jndlisher will also be a bar to an action against the others for tin sunn; publica- tion. [Ante, p. 522 ; and see form of plea in Duke of Brunswick v. Pepper, 2 C. & K. 083, n.) ' A plea that in a former action judgment was given against the plaintiff, is really a plea in estoppel. Commence as above. And such proceedings were thereupon had in that action that afterwards and before this suit it was adjudged that the plaintiff should recover nothing against the defendant, ami that the defend- ant should recover against the plaintiff £ for his costs of* defence. The said judgment was signed on the day of 1887, and still remains in force. [The proceedings are entered on roll, No. .] Wherefore the defendant says that the plaintiff is estopped, and ought not to be admitted to bring the present action against the defendant. [*G54] No. 04. Accord and Satisfaction. The plaintiff was the proprietor and publisher of a certain weekly journal called the "Musical Review" ; and the defendant was the proprietor and publisher of another weekly journal called the " Or- chestra." And after the publication, if any, of the said words the plaintiff and defendant agreed together to accept certain mutual apologies, to be published by the plaintiff and defendant respect- ively in their said weekly journals, in full satisfaction and discharge of all the causes and rights of action in the declaration mentioned and all damages and costs sustained by the plaintiff in respect thereof. And thereupon, in pursuance of the said agreement, the defendant did on the 14th of May, 1804, print and publish his part of the said mutual apologies in the form agreed on in his weekly journal, the " Orchestra," of which the plaintiff had notice. And the plaintiff did also after the making of the said agreement and in pursuance thereof, to-wit, on the 14th of May, 1804, print and publish his part of the said apologies in the form agreed on in his said weekly journal, the " Musical Review." And such apologies so published as aforesaid the plaintiff accepted and received in full satisfaction and discharge of the causes of action set out in the statement of claim. See Boosey v. ^Yood, 3 II. & C. 484 ; 34 L. J. Ex. 05. 512 PRECEDENTS OF PLEADINGS, ETC. No. 65. Another Form. Marks v. Conservative Newspaper Co., Limited, 3 Times L. R..244. "2. On the 18th day of June, 1886, and before the commence- ment of this action the plaintiff agreed with the defendants that if the defendants would publish in the said "Evening News" a letter written by the plaintiff and contradicting the statements made in the alleged libel, he, the plaintiff, would accept. the publication of such letter in full satisfaction and discharge of any claim which he might have against the defendants. " 3. The defendants in pursuance of such agreement did on the said 18th day of June, 1886, publish such letter as aforesaid, and the plaintiff accepted such publication in full satisfaction and discharge of the alleged cause of action." [*655] No. 66. Payment into Court. Weldon v. Routledge & Sons. " Defendants admit that they are liable in damages to plaintiff in respect of the matter in question, and pay into court the sum of £26 5.9. in full satisfaction of plaintiff's claim, but they do not admit that the words published are capable of bearing the innuen- does put upon them by plaintiff in her statement of claim." No. 67. Words spoken by the Defendant when Drunk — Payment into Court and Apology. Defence. "The defendant brings into court the sum of £5, and says that the same is sufficient to satisfy the plaintiffs' claim in this action. Particulars. The defendant proposes to give evidence at the trial of the follow- ing matters, with a view to mitigation of damages : — The defendant was a total stranger to both plaintiffs and bore no malice to either. He was drunk when he uttered the said words, and the fact that he was drunk was obvious to all who heard them. He has no recollection of having ever uttered any such words, but does not dispute that he did so. Everyone who heard what the defendant said was fully aware that he was not speaking deliberately and that he did not seriously mean to make any charge against (584) APOLOGY; 513 either plaintiff, but was talking wildly in consequence of drink. The said words arc wholly untrue. There is and was no foundation whatever for any such statement. The defendant exceedingly regrets that he should ever have uttered any such words ; be unre- servedly withdraws all imputation <>n the plaintiffs' character, and apologizes for the abusive Language which he uttered without any reason while under the influence of liquor. (Signed) Delivered, &c." [KB. — These particulars are not delivered under Older XXXVI. r. 37, but are part of the pleading ; see ante, p. 542. [*G5G] No. 68. Payment into Court and Particulars under Order XXXVI. r. 37. 1. The defendants admit that they sold and circulated the book called "■ ," and that the same contained the words set out in paragraph 3 of the statement of claim. They deny that the said words are capable of the meanings alleged in the innuendoes con- tained in the said paragraph, but they admit that the said wort Is are libellous, and that they refer to the plaintiff. 2. The defendants bring into court the sum of £ — , and say that the same is sufficient to satisfy the plaintiff's claim in this action. (Signed) Particidars. Delivered pursuant to Order XXXVI. r. 37. Take notice that at the trial of this action the defendants intend to give the following matters in evidence with a view to mitigation of damages : — [N.B. — There is nothing to prevent such particulars being printed on the same piece of paper as the defence, if the defendant washes it.] No. 09. Pleading an Apology. Defence. " 1. The defendant by the words set out in the statement of claim did not mean or imply that the plaintiff had in any way been guilty of fraudulent or dishonest practices, nor was he so understood by anyone who heard him. The said words do not bear any such meaning as is alleged in paragraph 8 of the statement of claim. " 2. The defendant has paid into court the sum of fifteen guineas, 33 LIB. & SLAN. (585) 514 PRECEDENTS OF PLEADINGS, ETC. and says that the same is sufficient to satisfy the plaintiff's claim in this action. " 3. At the earliest opportunity af^er the commencement of this action the defendant made and offered an apology to the plaintiff for the said words by means of a letter written by the defendant's solicitors to the plaintiff's solicitor in the following words : — [Here set out letter with date.\ [*G57] " 4. On the 31st day of October 1882 the defendant caused to be printed in the Journal the following apology to the plaintiff for the said words : — Apology.* I ? of desire to express my sincere regret that I incautiously repeated a statement made to me by one of my father's clerks concerning Mr. K. of . Such statement now proves to have been wholly unfounded, and I beg to withdraw and contradict the same, and to apologize to Mr. K. for having made it. An action having been commenced against me by Mr. K. for slander, I have this day paid into Court the sum of £15 15s., and I trust that. Mr. K. Avill accept that sum, together with this apology, as the best amends it is in my power to make for the injury or annoyance which I have inadvertently caused him. Dated this 25th day of October 1882. (Signed) [Defendant.] Witness, A. B., Solicitor. " This apology also appeared in the issue of the said journal for November 7th, and will appear in the next four consecutive issues thereof. " 5. Take notice that the defendant intends on the trial of this action to give in evidence in mitigation of damages the matters alleged in paragraphs 3 and 4 above." * The jury at the trial found this apology sufficient. No. 70. Reply to above Defence. " 1. The plaintiff joins issue upon the defence, except so far as it admits any part of the statement of claim. " 2. The plaintiff as to paragraph 2 of the defence, says that the said sum alleged as paid into court by the defendant is not enough to satisfy the claim of the plaintiff. " 3. In answer to paragraph 4 of the defence the plaintiff says that [*658] he never agreed to accept the apology set out in the said (586) APOLOGY. 515 paragraph ; but the same was inserted in tin Journal without his knowledge or consent, and on the 31st October 1882, being three months after the plaintiff had complained to the defendant of the slanderous words mentioned in the statement of claim. The so-called apology is evasive, indefinite, insufficient and useless, and is not in fact any compensation or amends whatever for the slanderous words complained of." No. 71. Notice under the 6 <& 7 Vict. c. 96, s. 1. 1886.— B.— No. 732. In the High Court of Justice, Queen's Bench Division. Between A.B. . . Plaintiff, and F.F . . Defendant, Take notice, that the defendant intends on the trial of this cause to give in evidence in mitigation of damages, if any shall be found to be due, that he made [or offered] an apology to the plaintiff for the defamation complained of in the statement of claim herein, before the commencement of this action [or as soon after the com- mencement of this action as there was an opportunity of making or offering such apology, the action having been commenced before there was an opportunity of making or offering such apology]. Such apology was published by the defendant in the News for the -"day of 18—. Yours, &c, G.H., defendant's solicitor [or agent]. To Mr. CD., plaintiff's solicitor or agent. No. 72. Plea under Sect. 2 of 6 & 7 Vict. c. 96. The alleged libel was contained in a public daily newspaper called the Daily Press, and was inserted in such newspaper without [*659] actual malice and without gross negligence. Before [or At the earliest opportunity after] the commencement of this action the defendant inserted in 'several issues of the said newspaper a full apology for the said libel according to the statute in such ease made and provided ; and the defendant immediately after the commence- ment of this action paid the sum of forty shillings into Court in the said action by way of amends for the injury sustained by the plain- tiff for the publication of the said libel, and gave notice of such payment into Court to the plaintiff. And the defendant' says that the said sum is enough to satisfy the claim of the plaintiff in respect of the said libel. (587) 516 precedents of pleadings, etc. Interrogatories and Answers. No. 73. Interrogatories in an Action against a Newspaper Proprietor (allowed in Lefroy v. Durnside, 4 L. It. (Ir.) 340 ; 41 L. T. 199 ; 14 Cox, C. C. 260 ; ante, p. 553). " Interrogatories on behalf of the above-named plaintiff for the examination of the above-named defendant : — 1. Is it not the fact that in the said newspaper published on the 6th day of Jnly 1878, or some other and what date, an artiele appeared in the words and figures set forth in the sixth paragraph of the statement of claim in this action ? If not how otherwise ? 2. Were not yon, the defendant William Burnside, upon and before the said 6th day of July 1887, or some other and what date, the proprietor, either' alone or jointly with some other and what person or persons, of the said newspaper ? N 0TE .-— The defendant must answer the above interrogatories on oath within ten days. Delivered the day of , by, &c." No. 74. " Interrogatories on behalf of the Plaintiff to be answered by an Officer of the 1 Leeds Daily News Company (Limited)" 1 and by the defendant William Lauries Jackson. 1.' Is the defendant William Lauries Jackson the editor or pub- lisher of the ' Leeds Daily News,' and what position does he occupy in respect of the said newspaper f [*660] 2. Is the said William Lauries Jackson a shareholder in the said company ? 3. Is it the duty of the said William Lauries Jackson to exercise a supervision over paragraphs of the nature of those set out in the statement of claim ? 4. Did the said William Lauries Jackson write, or have anything to do with the writing of any and which of the jmragraphs men- tioned in the statement of claim : and, if not, who was the writer of such paragraphs, and of each of them ? 5. Did the said William ^Lauries Jackson see any and which of the said paragraphs before they were inserted in the newspaper or before the newspaper was published or circulated, and did he sanction the jyublication of the said paragraphs, or of any and tohich of them f 6. By whom, and in what way, were the said paragraphs brought to the office of the newspaper company ; or were they received by anyone else, and whom, on their account, at one time ; and, if not, when were they received ? 7. Were the numbers of the 'Leeds Daily News ' of the 13th August 1875, 19th August 1875, 10th September 1875, and the (588) INTERROGATORIES AND ANSWERS. 517 numbers of the 'Leeds Daily News' containing the paragraph com- mencing with the word 'Query,' printed and published by the Leeds Daily News Company (Limited) or by the defendanl William Lauiies Jackson or by both of them ?" [The words in italics were struck out by Archibald, J., at Chambers, and the rest allowed, on January 8th 1876. See Weekly Notes for 1870, p. 11 ; 1 Charley, 101 ; Bitt. 91 ; 20 Sol. J. 218 ; 60. L. T. Notes, 196. J No. 75. Bedford v. Colt. Interrogatories. " 1. Did you write or cause to be written the letter to the editor dated 23rd November 1881, published in the ' Hereford Times ' of 26th November 1881, under the heading of ' The distraint for rent case at Leominster,' and signed by your name T. A. Colt ? " 2. By your allegation in that letter that one of the holders of the bill of sale mentioned in your letter had affirmed sometime since in a court of law that he did not possess a £5 note, did you intend to refer to the plaintiff or to Mr. George Bedford, the proprietor of the Royal Oak Hotel in Leominster ? " [*66l] No. 76. Answer. " In answer to the first and second of the said interrogatories, I say that I object to answer the same, on the ground that the same cannot legally be asked by way of interrogatories, and also upon the grounds that* they seek discovery of evidence which relates exclu- sively to my case, and that such discovery is not sufficiently material at this stage of the action." [This answer was held insufficient by the Divisional Court, Grove and Lopes. JJ., on the authority of Allhvsen v. Labouehere, (C. A.) 3 Q. B. D. 654; 47 L. J. Ch. 819 ; 48 L. J. Q. B. 34 ; 27 W. R. 12 ; 39 L. T. 207, and the defend- ant was ordered to file further and better answers (May 4th, 1882).] No. 77. Interrogatories in Jones v. Richards, 15 Q. B. D. 439. " 1. Did you, on or about the 16th of February 1885, or at some other and what date, write and send or cause to be sent to Colonel Pryse, of &c, a letter of which a copy is annexed hereto, marked A, of which the original will, if you require it, be shown to you before (.589; 518 PRECEDENTS OF PLEADINGS, ETC. swearing your affidavit in answer to these interrogatories, on your giving reasonable notice in that behalf ? "2. Did you on or about the 20th of January 1885, or at some other and what date, write and send or cause to be sent a letter of which a copy is annexed marked B [the latter containing the alleged libel], of which the original will, if you require it, be shown to you before swearing your affidavit in answer to these interrogatories, on your giving reasonable notice in that behalf ? " No. 78. Answers thereto. " 1. I object to answer the interrogatory numbered 1, on the ground that the same is irrelevant for the purposes of this action. " 2. I object to answer the interrogatory numbered 2, on the ground that I am advised and believe that my answer thereto might tend to criminate me." [The court held the answer to the first interrogatory insufficient, the question being relevant as leading up to a matter in issue in the cause ; see ante, p. 547.] (591 >) PRECEDENTS OF PLEADINGS. 519 II. PRECEDENTS OF PLEADINGS IN ACTIONS FOR SLANDER OF TITLE. [*662] No. 79. Libel on goods manufactured and sold by another. Western Counties Manure Co. v. Lawes Chemical Manure Co. (L. R. 9 Ex. 218 ; 43 L. J. Ex. 171 ; 23 W. R. 5 ; ante, p. 149.) Declaration. " In the Exchequer of Pleas. The 3rd day of February, a.d. 1874. Devonshire to wit. The Western Counties and General Manure Co., Limited, by William Harris, their attorney, sue the Lawes Chemical Manure Co., Limited, for that at the time of the committing of the grievances hereinafter mentioned the plaintiffs carried on business, and still do carry on business, as amongst other things manufacturers of and sellers of artificial manures, and had and still have upon sale certain artificial manures, and the plaintiffs say that the defendants well knowing that the plaintiffs were carrying on the aforesaid business and selling the said artificial manures, and contriving and intending to injure the plaintiffs in their said business, falsely and maliciously printed and published and caused to be printed and published of and concerning the plaintiffs, and of and concerning them as such manu- facturers and sellers of artificial manures, and of and concerning them in the way of their said business, the words following, that is to say : — [For the words of the libel, see the report of the case] ; meaning thereby that the said artificial manures so manufactured sold and traded in by the plaintiffs were artificial manures of an inferior quality to the said other artificial manures and especially were of an inferior quality to the said artificial manures of the defendants ; whereas in truth and in fact the said artificial manures so manufactured, sold and traded in by the plaintiffs were not of an inferior quality and especially were not inferior in quality to the said artificial manures of the defendants as the defendants well knew •* and by reason of the premises certain persons and par- ticularly George Snell and A. Rowe who before [* 663] and at the time of the committing of the grievances hereinbefore mentioned had been used to buy the said artificial manures so manufactured, sold and traded in by the plaintiffs ceased to do so, and certain other persons and particularly Geo. May and Samuel Harvey who * The words in italics were subsequently struck out by consent. (591) 520 PRECEDENTS OF PLEADINGS. would have bought the said artificial manures of the plaintiffs were induced to refrain from buying' the same ; whereby the plaintiffs have been prejudiced and injured iii their said trade and business, and the reputation of the said artificial manures so manufactured by the plaintiffs has been injured, and the sale thereof has been much diminished and fallen oif, and the plaintiffs have been greatly injured in their credit, reputation and circumstances, and have been and are thereby prevented from acquiring divers great gains which they might and otherwise would have acquired. And the plaintiffs claim ^2,000." No. 80.. Pleas. " In the Exchequer of Pleas. "The 23rd of February 1874. " 1. The defendants by Arthur P. Power their attorney say that they are not guilty. " 2. And for a second plea, the defendants say that the alleged words are true in substance and in fact. " 3. Ahd for a third plea, the defendants deny the .allegations in the declaration contained that the said artificial manures manu- factured, sold and traded in by the plaintiffs were not inferior in quality to the said artificial manures to the defendants' knowledge, as alleged." Feb. 23 1874. Order by Master George Pollock, giving the defendants leave to plead the several matters. Plaintiffs to be at liberty to demur to the third plea. Particulars of the second plea to be delivered within three days. [*664J No. 81. Replication. "Feb. 27 1874. " The plaintiffs join issue upon all the defendants' pleas. " And the plaintiffs say that the defendants' third plea is bad in substance. \_In Margin.~\ "A matter of law intended to be argued is that the defendants' knowledge that the plaintiffs' manures were not inferior to their own is immaterial, and that the plea is therefore no answer to the action." (592) IN SLANDER OF TITLE. 521 No. 82. Lawes, &c. Co. ats. "Western, dbc. Co. Joinder in Demurrer. "Feb. 28 1874. " The defendants say that the said third plea is good in sub- stance." No. 83. Points. " The following are the points intended to be insisted on by the plaintiffs upon the argument of this demurrer : — " 1. That the defendants' third plea is bad in substance. " 2. That the defendants' knowledge that the plaintiffs' manures were not inferior to their own is immaterial, and that the plea is therefore no answer to the action. " 3. That the declaration is good without the allegations denied in the third plea." Subsequently, for convenience sake, and by agreement between the counsel for the parties'respectively, the plaintiffs amended their pleadings by striking out the averment "as the defendants well knew," and the defendants withdrew their third plea and demurred to the declaration instead. This demurrer was decided in favor of the plaintiffs, and the case was subsequently settled with- out going to trial. A Stet Processus was entered on October 9th, 1874. [*665] No. 84. Interrogatories. " Interrogatories to be answered by the secretary or manager or some other person on behalf of the defendants, by affidavit in writ- ing, to be sworn and filed in the ordinary way pursuant to the order of the Hon. , dated the day of , a.d. 1874. " 1. Was one W. M. W. an agent or servant, or in the employ of the defendants in or about the month of February 1873, for the sale of their manures, or for any other purpose, in Plymouth or elsewhere, in the county of Devon, or in the county of Cornwall ? " 2. Was any, and what, inquiry made by the said W. M. W. of J. M., then the secretary of the Devon and Cornwall Chambers of Agriculture, in or about "the month of February 1873, respecting certain manures sent by the said J. M., for analysis, to Professor A.? Was the said inquiry, if any, made by the express authority of the defendants, or would it have been within the general authority of the said W. M. W. to make such inquiry ? Did the said J. M., either then or at any time, give any, and what, accounts to the defendants or the said W. M. W., or any of their agents or servants, of the (593) 5 22 PRECEDENTS OF PLEADINGS. circumstances under which, the time when, the place where, and the person or persons from whom he had procured the said manures, or samples of manures? " 3. Were the said manures, or samples of manures, forwarded to Professor A. by the authority of the defendants, or their agents or servants, or which of them? " 4. Was the said J. M., in or about the month of February 1873, or at any other and what time, and for how long, and where, an agent or servant of, or in any way as a shareholder, customer, or otherwise connected with the defendants ? " 5. Did the defendants receive, in or about the month of February 1873, or at any other and what time, from the said J. M., an analysis, or copy of an analysis, made, or purporting to be made, by Pro- fessor A. of certain manures, or samples of manures? Did the said J. M., give to the defendants, their agents or servants, any, and what, account of the time when, the place where, and the person or persons from whom he received, or became possessed of, the said analysis ? " 6. Were the manures sold or manufactured by the plaintiff among the manures so analysed, or purported to be analysed ? Did the defendants print or circulate the said analysis ? " 7. Did the defendants send a copy of the said analysis to each or [*666] any, or either of their agents, and to which of them ? Give the names' and addresses of the said agents. " 8. Was one E. E., in or about the month of February 1873, or at any other and what time, an agent of, or in any way as a share- holder or customer, or otherwise, connected with the defendants? Did he, by the authority or with the sanction of the defendants, pro- cure from the plaintiffs, in or about the month of December 1872, or when, any, and what samples of their manures ? What was done with the samples, if any, 'so obtained ? " 9. Have the defendants in their possession or power any of the manures or samples, or portions of the manures or samples, submitted for analysis to Professor A. ? " 10. Formal interrogatory as to books, letters, documents, &c. No. 85. Slander of Title to Goods. C. v. D. STATEMENT OF CLAIM. 1. The plaintiff, at all the times hereinafter mentioned, was a stone-mason and contractor carrying on business at , in the county of . 2. On or about the day of 1880 the plaintiff in the ordinaiy course of his business advertised certain goods of his (594) IN SLANDEK OP TITLE. 523 for sale. The following is a copy of the advertisement : — " To be sold by auction, by Mr. F. S., on Friday and Saturday, January 30th and 31st 1880, at the above works, the whole of the working plant, the property of Mr. E. C, consisting of, &c. [The adver- tisement then described a variety of articles, waggons, carts, sleepers, planks, and materials.] The sale to commence each day at twelve, o'clock. Cotsgate Hill, Ripon, January the 19th 1880." 3. Thereupon the defendant on the 25th day of January 1880 falsely and maliciously caused to be printed and published of the plaintiff and in relation to the said intended sale the following " Notice," that is to say : — [here set out the words verbatim] ; thereby meaning and intending to cause it to be believed that the goods named in the said advertisement were the property of the defendant and not of the plaintiff, and that no person could safely purchase any . , unlawfully and wickedly did compromise, print and publish, and cause and procure to be composed, printed, and published, a certain scandal- ous, impious, blasphemous, and profane libel, of and concerning the Holy Scriptures and the Christian religion, in one part of which said libel there were and are contained, amongst other things, cer- tain scandalous, impious, blasphemous, and profane matters and things, of and concerning the Holy Scriptures and the Christian religion, according to the tenor and effect following, that is to say : [Here set out the first blasphemous passage], and in another part thereof there were and are contained, amongst other things, certain other scandalous, impious, blasphemous, and profane matters and things, of and concerning the said Holy Scriptures and the Christian ^605) 5 34 PRECEDENTS OF PLEADINGS] religion, according to the tenor and effect following, that is to say : \ Here set out other blasphemous passages] : to the high displeasure of Almighty God, to the great scandal and [* 679] reproach of the Christian religion, to the evil example of all others in the like case offending, and against the peace of our. said Lady the Queen, her crown and dignity. See another precedent in R. v. Ramsey and Ibote, 1 C. & E. pp. 126—131. No. 98. Indictment for publishing and selling an Obscene Picture. — , to wit. The jurors for our Lady the Queen upon their oath present that A. B., being a wicked and evil-disposed person, and unlawfully devising, contriving and intending to debauch and corrupt the morals of the young and of divers other liege subjects of our said Lady the Queen, on the day of a.d. , in a cer- tain open and public shop of him, the said A. B., situate and being at number High Street, in the parish of , in the town of , in the county aforesaid, Unlawfully, wickedly, designedly, and maliciously did publish and sell, and cause and procure to be published and sold, to one C. D., a certain lewd, scandalous and obscene picture [print, photograph, or engraving], intituled , and representing [Here give such a detailed description of the picture as will manifestly shoio its indecency], to the manifest corruption of the morals of the young, and of other liege subjects of our said Lady the Queen, in contempt of our said Lady the Queen and her laws, to the evil example of all others in the like case offending, and against the peace of our said Lady the Queen, her crown and dignity. No. 99. Indictment for Seditious Words. to wit. The jurors for our Lady the Queen upon their oath present that A. B., being a wicked, malicious, seditious, and evil-disposed per- son, and wickedly, maliciously, and seditiously contriving and intending the peace of our Lady the Queen and of this realm to dis- quiet and disturb, and the liege subjects of our said Lady the Queen to incite [* 680] and move to hatred and dislike of the per- son of our said Lady the Queen and of the goverment established by law within this realm, and to incite, move, and persuade great numbers of the liege subjects of our said Lady the Queen, to insur- rection, riots, tumults, and breaches of the peace, and to prevent by force and arms the execution of the laws of this realm and the preservation of the public peace, on the day of , a. d. (606) IN CRIMINAL CASES. 535 , in the presence and hearing of divers, to wit, of the liege subjects of our said Lady the Queen then assembled together, in a certain speech and discourse by him the said A. B. then addressed to the said liege subjects so then assembled together, as aforesaid, unlawfully, wickedly, maliciously, and seditiously did pub- lish, utter, pronounce, and declare with a loud voice of and concern- ing the government established by law within this realm, and con- cerning our said Lady the Queen, and the crown of this realm, and of and concerning the liege subjects of our said Lady the Queen, committing and being engaged in divers insurrections, riots, and breaches of the public peace, amongst other words and matter, the false, wicked, seditious and inflammatory words and matter following, that is to say : — [Here set out the seditious words verbatim] ; in contempt of our said Lady the Queen, in open violation of the laws of this realm, to the evil and pernicious example of all others in the like case offending, and against the peace of our said Lady the Queen, her crown and dignity. No. 100. Indictment for Defamatory Woi'ds spoken to a Magistrate in the Execution of his Duty. Middlesex, to wit. The jurors for our Lady the Queen upon their oath present, that heretofore, to wit, on the day of in the year of our Lord, one A. B. w r as brought before C. D., Esquire, then and yet being one of the justices of our said Lady the Queen, assigned to keep the peace of our said Lady the Queen in and for the county of Middlesex, and also to hear and determine divers felonies, trespasses, and other misdeeds committed in the said county ; and the said A. B. was then charged before the said C. D., upon the oath of one E. F., that he, the said A. B., had then lately before feloniously taken, stolen, and taken away divers goods and chattels of the said E. F. And the [* 681] jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., being a scandalous and ill-disposed person, and wickedly and maliciously intending and contriving to scandalize and vilify the said C. D. as such justice as aforesaid, and to bring the administration of justice in this kingdom into contempt, afterwards, and whilst the said C. D„ as such justice as aforesaid, was examining and taking the dispositions of divers witnesses against him the said A. B., in that behalf, to wit, on the day and year aforesaid, wickedly and maliciously, in the presence and hearing of divers good and liege subjects of our said Lady the Queen, did publish, utter, pronounce, declare, and say with a loud voice to the said C. D., and whilst he the said C. D. was so acting as such justice as aforesaid, the false, wicked, malicious, and sedi- tious words and matter following, that is to say : — [Here set out the seditious words verbatim] ; to the great scandal and reproach of the administration of justice an this kingdom, to the great 6candal and (607j 530 PRECEDENTS OF PLEADINGS damage of the said C. D., in contempt of our said Lady the Queen and her laws, to the evil example of all others in the like case offending, and against the peace of our said Lady the Queen, her crown and dignity. No. 101. Indictment for a Libel on a Private Individual at Common Law. , to wit. The jurors for our Lady the Queen, upon their oath, present that [before and at the time of the committing of the offence hereinafter mentioned, one C. D. was, and still is, a solicitor of the Supreme Court, and exercised and carried on the profession or business of such solicitor at , in the county of ; and that] A. B. being a person of an evil and wicked mind, and wickedly, mali- ciously, and unlawfully contriving and intending to injure, vilify, and prejudice the said C. D., and to bring him into public contempt, scandal, infamy, and disgrace, and to deprive him of his good name, fame, credit, and reputation [in his said profession and business, and otherwise to injure and aggrieve him therein], on the day of , in the year of our Lord , wickedly, maliciously, and unlawfully did write and publish, and cause and procure to be written and published, [in the form of a letter directed to one E. F.,] of and concerning the said C. D. [and of and concerning him in his said profession [* 682] and business, and of and concerning his conduct and behaviour therein], the false, scandalous, malicious, and defam- atory words following, that is to say : — [Here set out the libel ver- batim, with all necessary intniendoes], to the great damage, scandal, and disgrace of the said C. D. [in his said profession and business], to the evil example of all others in the like case offending, and against the peace of our said Lady the Queen, her crown and dignity. No. 102. Indictment for a Libel on a Lead Man. The jurors for our Lady the Queen, upon their oath, present that before the committing of the offence hereinafter mentioned, to wit, on the 29th day of May 1883, John Batchelor, of Penarth, in the county of Glamorgan, died, and that Thomas Henry Ensor, being a person of an evil and wicked mind, wickedly, maliciously and un- lawfully designing and intending to injure and defame the charac- ter, reputation and memory of the said John Batchelor, and to vilify and to throw scandal upon his family and posterity, and to bring them into public contempt and infamy, and to stir up the hatred and ill-will of the subjects of our Lady the Queen against them, and to deprive them of their good name, fame and reputation, and to provoke them to a breach of the peace^ on the 23rd day of July (608) IN CRIMINAL CASKS. 537 1886, wilfully, maliciously and unlawfully did write and publish, and cause and procure to be printed and published * of and con- cerning the said John Batchelor, his family and posterity, the false, scandalous, malicious and defamatory words following-, that is to say: — " Suggested [* 683] epitaph for the Iiatchelor statue" [I/ere copy the libel verbatim], to the scandal and reproach of the name and memory of the said John Batchelor, to the great damage and disgrace of his family and posterity, to the evil example of all others in the like case offending and against the peace of our said Lady the Queen, her crown and dignity. * In the case of R. v. Ensor, 3 Times L. 11. 366, four of the counts ran thus: — "A false, scandalous, and defamatory libel, having a tendency to cause a breach of the peace, and which on the 27th day of July 1886, did cause a certain breach of the peace, to wit, an assault by one Cyril Batchelor and one Llewellyn Batchelor upon one Henry Lascelles Carr at Cardiff, in the county of Glamorgan, in the form of a letter or newspaper paragraph delivered and read by the said T. H. Ensor to John Henry Taylor, James Harris, Henry Lascelles Carr, and divers other persons at Cardiff aforesaid, according to the tenor and effect following, that is to say." These words were inserted because in that case an assault had actually followed the libel ; but they are not essential to an indictment for such an offence. Where there has been no assault the defendant is still criminally liable if there be other evidence of a criminal intent. No. 103. Indictment under Sect. 4 of Lord Campbell's Act. [Commence as in p>recedent No. 101/ then set out the libel with all necessary innuendoes, and conclude as folloios]: — he, the said A. B., then well knowing the said defamatory libel to be false ; to the great damage, scandal, and disgrace of the said C. D., to the evil example of all others in the like case offending, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. No. 104. Indictment under Sect. 5 of lord Campbell's Act. [This will precisely follow the preceding form, merely omitting the words : — " he, the said A. B., then well knowing the said defam- atory libel to be false."] No. 105. Demurrer to an Indictment or Information. And the said A. B., in his own proper person, cometh into court here, and, having heard the said indictment [or information] read, (609) 538 PRECEDENTS OF PLEADINGS saith, that the said indictment [or information] and the matters therein contained, in manner and form as the same above arc stated and set forth, are not sufficient in law, and that he the said A. B. is not bound by the law of the land to answer the same ; and this he is ready to verify ; wherefore, for want of a sufficient indictment [or [*684] information] in this belief, the said A. B. prays judg- ment, and that by the court he may be dismissed and discharged from the said premises in the said indictment [or information] specified. See Crown Office Rules, 188G, Form, No. -80. No. 106. Joinder in Demurrer. And J. N., who prosecutes for our said Lady the Queen in this behalf, saith, that the said indictment [or information] and the matters therein contained, in manner and form as the same are above stated and set forth, are sufficient in law to compel the said A. B. to answer the same ; and the said J. N., who prosecutes as aforesaid, is ready to verify and prove the same, as the court here shall direct and award : wherefore, inasmuch as the said A. B. hath not answered to the said indictment [or information], nor hitherto in any manner denied the same, the said J. N., for our said Lady the Queen, prays judgment, and that the said A. B. may be con- victed of the premises in the said indictment [or information] specified. No. 107. Pleas to an Indictment. R. v. Niblett. "At the assizes and general delivery of the Queen's gaol for the county of Berkshire, ho'lden in and for the said county on the fourth day of May in the year of our Lord 1886, cometh into court the said E. N, in her own proper person, and having heard the said in- dictment read, saith she is not guilty of the said premises in the said indictment above specified and charged upon her, and of this she the said E. N. puts herself upon the country, &c. " And for a further plea in this behalf the said E. N. says that our Lady the Queen ought not further to prosecute the said indictment against her, because she says it is true that the Reverend A. B. is the man who slept at her house on the fourth day of June last with the said X. Y. [and so on, stating facts showing the truth of every matter charged in the alleged libel]; and so the said E. N. says that the said alleged (610) IN CRIMINAL CASES. 539 libel is true in substance and in fact. And tlie said E. N. further [*685] saitli that before and at the time of publishing the said alleged libel, it was for the public benefit that the matters contained therein should be published to the extent that they were published by her, because the said Reverend A. B. then was and still is a clergyman of the Church of England, in charge of the parish of , in the said county, and the said X. Y. had been a servant of the said Reverend A. B. in the said parish, and because it was notorious in the said parish that the said X. Y. was a woman of immoral character, and because scandal and evil report existed in the said parish to the effect that she had had improper connection with the said Reverend A. B. whilst she was in his service, and also that he had since cohabited with her at in the county of Middlesex, where she passed under the name of Mrs. B., and other places and under other names to such parishioners unknown, and because these reports created great scandal to the church, and greatly disquieted the parishioners of the said parish, and because it was of the greatest consequence to such parishioners to know whether these reports were true or false, and to obtain evidence which might be laid before the bishop of the diocese in which such parish was situated, in order that proceedings might be taken to inquire into the truth or falsity of such reports : wherefore the said E. N., beinw aware of the premises and being herself a member of the said Church of England, and believing it to be her duty to acquaint the said parishioners with the facts above mentioned as to the conduct of the said Reverend A. B., such facts being within her own knowl- edge, published the said alleged libel to the churchwarden of the said parish, and to the parish clerk, and to six of the parishioners of the said parish, all of whom were churchmen and interested therein, in order that the said alleged libel, or a copy thereof should be forwarded to the said bishop, and a copy thereof was forwarded to the said bishop, who thereupon at once began to inquire into the truth or falsity of the said reports ; and the said E. N. in no way published the said alleged libel save to the said bishop, churchwar- den, parish clerk, and parishioners aforesaid. Wherefore the said E. N. says it was for the public benefit that the matters charged in the said alleged libel, and all and every of them, should be so pub- lished by her as aforesaid. And this she is ready to verify, where- fore she prays judgment, and that by the court here she may be dismissed and discharged from the said premises in the said indict- ment above specified." See another Precedent, 2 Cox, C. C, App. xxix ; and Crown Office Rules, 1886, Form, No. 81. [*686] For a plea in abatement to an indictment for libel, see R. v. Gavan Duffy, 1 Cox, C. C. 282, and li. v. J. Mitchell, 11 L. T. (Old S.) 112. For a plea of abatement on the ground that other proceedings lor the same libel were still pending, see R. v. J. Mitchell, 3 Cox, C. C. 94, 106 ; with demurer thereto and joinder in demurrer (lb. 96), and replication (lb. 101). For a plea to the jurisdiction of the court in a criminal case of (.611) 540 PRECEDENTS OF PLEADINGS libel, and a demurrer thereto, see R. v. Hon. Robert Johnson, 6 East, 583 ; 2 Smith, 591 ; 29 How. St. Tr. 103. No. 108. Replication to the above Pleas. And thereupon J. N. [the clerk of arraigns, FOOTJE. 545 from Parliament in a sense by accident, for the oath which ex- cluded them was not pointed at them ; but no one can doubt that at that time if it had occurred to anyone that they were not excluded, a law would have been forthwith passed to exclude them. Histori- cally and as a matter of fact, such was the state of things when these dicta were pronounced. But now, so far as I know the law, a Jew might be Lord Chancellor ; most certainly he might be Master of the Rolls. The great and illustrious lawyer whose loss the whole profession is deploring, and in whom his friends knew that they lost a warm friend and a loyal colleague ; he, but for the accident of taking his office before the Judicature Act came into operation, might have had to go circuit, might have sat in a criminal court to try such a case as this, might have been called upon, if the law really be that " Christianity is part of the law of the land" in the sense contended for, to lay it down as law to a jury, amongst whom might have been Jews, — that it was an offence against the law, as blasphemy, to deny that Jesus Christ was the Messiah, a thing which hi' himself did deny, which Parlia [*692] ment had allowed him to deny, and which it is just as much part of the law that any one may deny, as it is your right and mine, if we believe it, to assert. There- fore, to base the prosecution of a bare denial of the truth of Chris- tianity, simpliciter and per se on the ground that Christianity is part of the law of the land, in the sense in which it was said to be so by Lord Hale, and Lord Raymond, and Lord Tenterden, is in my judgment a mistake. It is to forget that law grows ; and that though the principles of law remain unchanged, yet (and it is one of the advantages of the common law) their application is to be changed with the changing circumstances of the times. Some per- sons may call this retrogression, I call it progression, of human opinion. Therefore, to take up a book or a paper, to discover merely that in it the truth of Christianity is denied without more, and thereupon to say that now a man may be indicted upon such denial as for a blasphemous libel is, as 1 venture to think, abso- lutely untrue. I, for one, positively refuse to lay that down as law, unless it is authoritatively so declared by some tribunal I am bound by. Historically, I cannot think I should be justified in so doing, for Parliament, which is supreme and binds us all, has enacted statutes which make that old view of the laAv no longer applicable. ^Nor is it any disrespect whatever to the great men of elder days to hold that what they said in one state of things is not applicable under another. Gentlemen, when I last addressed a jury on this subject, I put a case to them which I thought was a reductio ad absurdum of the argument. I said that if the law was as contended for, it would be enough to say that anything was part of the law of the land, and that thereupon there could be no discussion and no reform ; for that to attack any part of the law, however gravely and respectfully, would be, if not blasphemous yet seditious. Monarchy is part of the law of the land ; primogeniture is part of the law of the land ; the laAvs of marriage are part of the law of the land, and so forth. But if the doctrine contended for be true, to republish Algernon 35 lib. & slan. (617) 546 SUMMING UP IN Sydney, or Harrington, or Locke, or Milton, would expose a man to a prosecution for a breach of the law of libel. But it shows how dangerous it is for some men at least to presume upon their knowl- edge. What I put as a reductio ad absurdum I have since discov- ered actually occurred, and was decided to be law by a judge early in the last century. There is a case reported by Lord Chief Baron Gilbert (7i. v. Bedford), from which it appears that a man was actually convicted of a seditious libel for discussing gravely and civilly, and as the report of the case in Bacon's Abridgment, tit. Libel, says " without any reflection whatever upon any part of the then existing Govern [*693] ment," the respective advantages of an he- reditary or elective monarchy. I need hardly say that if such a case arose now no judge would follow that authority, no jury would con- vict, the whole proceeding would be denounced, and rightly de- nounced, as altogether monstrous. It is clear, therefore, to ray mind that the mere denial of the truth of the Christian religion is not enough alone to constitute the offence of blasphemy. What then is enough ? No doubt we must not be guilty of taking the law into our own hands, and converting it from what it really is to what we think it ought to be. I must lay down the law to you as I understand it, and as I read it in books of author- ity. Now, Mr Foote, in his very able address to you, spoke with something like contempt of the person he called " the late Mr. Starkie." He did not know Mr. Starkie ; he did not know how able and how good a man he was. Mr. Starkie died when I was young ; but I knew him, and everyone who knew him knew that he was a man not only of remarkable power of mind, but of opinions liberal in the best sense ; and if ever the task of law-making could be safely left in the hands of any man perhaps it might have been in his. But, what is more material to the present purpose, the statement of the law by Mr. Starkie has again and again been assented to by judges as a correct statement of the existing law. I will read it to you, there tore, as expressing what I lay down to you as law in words far better than any at my command. " There are no questions of more intense and awful interest than those which concern the relations between the Creator and the beings of his creation ; and though, as a matter of discretion and prudence, it might be better to leave the discussion of such matters to those who, from their education and habits, are most likely to form correct conclusions, yet it cannot be doubted that any man has a right, not merely to judge for himself on such subjects, but also, legally speaking, to publish his opinions for the benefit of others. "When learned and acute men enter upon these discussions with such laud- able motives, their very controversies, even where one of the antago- nists must necessarily be mistaken, so far from producing mischief, must in general tend' to the advancement of truth, and the establish- ment of religion on the firmest and most stable foundations. The very absurdity and folly of an ignorant man, who professes to teach and enlighten the rest of mankind, are usually so gross as to render his errors harmless ; but be this as it may, the law interferes not witli his blunders so long as they are honest ones, justly considering ( FOOTS. it — a detestable superstition. I mean this, and if I have said h in coarse language, that is because I have doI sufficienl culture or education to cull my words carefully. But I will bring before you a number of hooks sold on every bookstall of Mr. Smith, written by persons admitted to the very highest society ill the land, ill which not only are the same things to he found in point of matter, hut I will read you passages in which there is very little difference in manner — passages, for example, from John Stuart Mill, from Grote, from Shelley"' (I mention the dead that I may not wound the feelings of the living). " No one ever dreamed of attacking Shelley." (He is wrong in fact, for Shelley's publisher was prosecuted, and Shelley himself was deprived by Lord Eldon of the custody of his children.) "1 will show you things written by these men quite as strong and quite as coarse as anything to he found in these publi- cations of mine ; and it is plain the law cannot be as suggested, because it can never be true that a poor man cannot do what, a rich man may ; it cannot be true that you may blaspheme if you blaspheme in civil language." Such I understand, put into my own words, to be Mr. Foote's contention. On that I have two things to say : one in Mr. Foote's favour, and one against him. He wished to have it impressed upon you that he is not, and never has been a licentious writer in the sense in which Mr. Starkie uses the word licentious. He has not, he says, pandered to the sensual passions of mankind. You will have the documents before you, and you will judge for yourselves. For myself I should say that in this matter he is right. It is a thing in his favour, and he is entitled to have it said. But upon the other point, if the law as I have laid it down to you is correct — and I believe it has always been so — if the decencies of controversy are observed, even the fundamentals of religion may be attacked without a person being guilty of blasphemous libel. There are many great and grave writers who have attacked the foundations of Christianity. Mr. Mill undoubtedly did so ; some great writers now alive have done so too ; but no one can read their writings [*702] without seeing a difference between them and the incrimi- nated publications, which I am obliged to say is a difference not of degree but of kind. There is a grave, an earnest, reverent, I am almost tempted to say religious, tone in the very attacks on Christianity itself, which shows that what is aimed at is not insult to the opinions of the majority of Christians, but a real, quiet, honest pursuit of truth. If the truth at which these writers have arrived is not the truth we have been taught, and which, if we had not been taught it, we might have discovered, yet because these conclusions differ from ours, they are not to be exposed to a criminal indict- ment. With regard to many of these persons therefore I should say they are within the protection of the law as I understand it. With regard to some of the others, passages from whose writings Mr. Foote read — I heard them yesterday for the first tinn — I do not at, all question that Mr. Foote read them correctly. 1 confess, as 1 heard them, I had, and have, a difficulty in distinguishing them from the alleged libels. They do appear to me to be open to the * (62.V) 55-1- sum.mi.no UP in same charge, on the same grounds, as Mr, Foote's writings. He says many of these things are written in expensive books, published by publishers of known eminence ; that they are to be found in the drawing-rooms, studies, libraries, of men of high position. It may be so. If it be, I will make no distinction between Mr. Foote and anyone else ; if there are men, however eminent, who use such lan- guage as Mr. Foote, and if ever I have to try them, troublesome and disagreeable as it is, if they come before me, they shall, so far as my powers go, have neither more nor less then the justice I am trying to do to Mr. Foote. If they offend against the blasphemy laws, they shall find that so long as the laws exist, whatever I may think about their wisdom, there is but one rule in this court for all who come to it. This much Mr. Foote may depend upon. So far as I can judge. some of the expressions whieh he read si emed to be strong, shall I say coarse ? — expressions of contempt and hatred for the generally recognized truths of Christianity and for the Hebrew Scriptures, which are said to have been inspired by God Himself. But Mr. Foote must forgive me for saying that this is no argument what- ever in his favour. Let me explain. It is no argument for a burglar or a murderer (I mean no offence to Mr. Foote ; I should be unworthy of my position if I insulted anyone in his) — it is no argument, I say, in favour of a murderer or a burglar that some other person has also committed a burglary or a murder. Because in the infinite variety of human affairs some persons may have escaped, that is no reason why others should not be brought [* V03] to justice. If he is correct in his citations from these writers, it seems to me that some of them are fairly liable to such a prosecution as his. Suppose they are, that does not show that he is not. What Mr. Foote had to show was, not that other people were bad, but that he was good ; not that other persons were guilty, but that he was innocent. It is no answer to bring forward these other cases. It is not enough to say these other persons have done these things, if they are not brought before us. Gentlemen," I not only admit, but I urge upon you, and on every one who hears me, that whilst laxity in the administration of the law is bad, the most odious laxity of all is discriminating laxity, which lays hold of particular persons and lets other persons equally guilty go scot free. That may be, that is so, but it has nothing to do with this case. The question here is not whether other persons ought to be standing where Mr. Foote and Mr. Ramsey now stand, but what judgment we ought to pass on Mr. Foote and Mr. Ramsey, who do stand here. In short and in fine, we have to administer the law whether we like it or no. It is undoubtedly a disagreeable law, or may become so, but I have given you some reasons for thinking it not so bad nor so indefensible as Mr. Foote has argued that it is. I think it, on tie contrary, a good law that persons should be obliged to respect the feelings and opinions of those amongst whom they live. I assent to the passage from Michaelis, that in a Catholic country Ave have no right to insult Catholic opinion, nor in a Mohamedan country have we any right to insult Mohamedan opinion. I differ from (626) B. V. RAMSKY AND FOOTE. 555 both, but I am bound as a good citizen to treat with respect opinions with which I do not agree. Take these publications with you ; look at them ; if you think they are permissible attacks on the religion of the country you will find the defendants not guilty. Take these cartoons. Mr. Foote says they are not attacks upon, and are not intended for caricatures of, Almighty God. If there be such a being, says Mr. Foote, he can have no feeling for Almighty God but profound reverence and awe, but this he says is his mode of holding up to contempt what he calls a caricature of that ineffable Being as delineated in the Hebrew Scriptures. This is for you to try. Look at them and judge for yourselves whether they do or do not come within the widest limits of the law. If they do", then as with the libels find the defendants not guilty. But if you think that they do not come within the most liberal and largest view that any one can give of the law as it exists now, then find them guilty. Whatever may be the conse- quences — you [* 704] may think the prosecution unwise, you may think the law undesirable, you may think no publications of this sort should ever be made the subject of criminal attack (I do not say you do think so, but you may), it matters not — your duty is to obey the law ; not to strain it in favour of the defendants because you do not like the prosecution ; not to strain it against them because you do not yourselves agree with the statements they advocate, as you are certain entirely to disapprove of the manner in which they advo- cate them. Take all these alleged libels into your consideration and say whether you find Mr. Foote or Mr. Ramsey, both or either, guilty or not guilty of this publication. (627) , 7 o 5 i APPENDIX G. A Bill for the abolition of Prosecutions against Laymen for the expression of opinion on matters of Religion. Whereas certain laws now in force which were intended for the promotion of religion are no longer suitable for that purpose, and it is expedient to repeal them : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same as follows : 1. After the passing of this Act no criminal proceedings shall be instituted in any court against any person for schism, heresy, apostasy, blasphemous libel!, blasphemy at common law, or atheism ; excepting only proceedings instituted in ecclesiastical courts against spirituarpersons of the Church of England, or in the courts of the Church of Scotland against ministers or preachers of that church. 2. The Acts contained in the schedule of this Act, are hereby repealed to the extent in the third column of that schedule mentioned. 3. Provided that nothing herein contained shall be deemed to affect the provisions of an Act passed in the nineteenth year of his late Majesty King George the Second, chapter twenty-one, intituled "An Act more effectually to prevent profane cursing and swearing," or any other provision of any other Act of Parliament not hereby expressly repealed. * Provided moreover that any person who, with the intention of [*706] wounding the religious feelings of any person or persons, shall in any public place utter any word, or make any gesture, or exhibit any object within the hearing or sight of any person or persons whose religious feelings are likely to be thereby wounded, shall be guilty of a misdemeanour ; and on being convicted thereof, shall be liable to line or imprisonment, or both, as the court may award, such imprisonment not to exceed the term of one year. * The language of this concluding proviso is perhaps too wide. It is not intended to impose any restriction whatever on the freest exposition of opinions, however heretical ; and its language might be amended so as to prevent any- possible misconstruction. Some such clause is in my opinion desirable, and indeed necessary. (See ante, pp. 469, 470.) (628) APPENDIX O. 557 4. This Act may be cited as the Religious Prosecutions Abolition Act, 1887. SCHEDULE. 1 Edw. 0, c. 1. 1 Eliz. c. 2, s 3. 9 & 10 Wm. 3, c. 35. <6 Geo. 4, c. 47. An Act against such as shall The whole Act unreverently speak against the Sacrament of the body and blood of Christ, com- monly called the Sacrament of tli,' Altar ; and for the receiving thereof in both kinds. An Act for the uniformity of Common Prayer and. Divine Service in the' Church and the Administra- tion of the Sacrament An Act for the more effectual suppressing of blasphemy and profaneness. An Act for restricting the punishment of leasing, making sedition and bias phemy in Scotland. In section 3 the words "shall in any interludes, plays, songs, rhymes, or by other open words, declare or speak anything in the derogation, depraving, or despising of the same book, or of any- thing therein contained or any part thereof, or." The whole Act. So much of the Act as relates to the crime of blasphemy. (629^ [-707] APPENDIX D- STATUTES. CONTENTS 3 Edw. I. Westminster I. c. 34 13 Edw. I. stat. 4 . . . 2 Rich. II. stat. I. c. 5. i Rich. II. c. 11 . 1 13 Car. II. stat. I. c. 1. 4 William & Mary, c. 18, s. 1 32 Geo. III. c 60. (Mr. Fox's Libel Act) 39 Geo. III. c. 79 * 51 Geo. III. c. 65, s. 3 60 Geo. III. & 1 Geo. IV. c. 8, ss. 1, 2 . 5 Geo. IV. c. 83, s. 4 . 6 & 7 Will. IV. c. 76, s. 19 . 1 & 2 Vict. c. 38, s. 2 2 & 3 Vict. c. 12, ss. 2, 3, 4 . 3 & 4 Vict. c. 9 6 & 7 Vict. c. 96. (Lord Campbell's Act.) 8 & 9 Vict. c. 75 .... 9 & 10 Vict. c. 33, s. 1 . 11 & 12 Vict. c. 12, s. 3 . 15 & 16 Vict c. 76 (C. L. P. Act, 1852), s. IS & 19 Vict. c. 41 .... 20 & 21 Vict. c. 83 23 &, 24 Vict c 32 * 43 & 44 Vict. c. 41 (Burial Law Amendment Act, 1880) 01 s. 7 44 & 45 Vict. c. 60 (Newspaper Libel and Registration Act, 1881) •AGE 134 708 135 136 708 709 710 711 712 ib'-. 713 ib. 714 715 716 719 720 721 ib, 752 ib. 72 i ib. 725 (630^ A.PPE2TDIX D. 559 [*708] APPENDIX OF STATUTES. THE STATUTE OF CIRCUMSPECTE AGATIS. 13 EDW. I. Stat. 4. [a.d. 1285.] The King to his judges sendeth greeting :— 1. Use yourself circumspectly in all matters concerning the Bishop of Nor- wich and his clergy, not punishing them if they hold plea, in Court Christian, of such things as be mere spiritual, that is to wit, of penance enjoined by prel- ates for deadly sin, as fornication, adultery, and such like, for the which some- times corporal penance, and sometimes pecuniary is enjoined. . . . . 6. And for laying violent hands on a clerk, and in cause of defamation, it hath been granted already, that it shall be tried in a Spiritual Court, when money is not demande /, but [a thing done] for punishment of sin, and likewise for break- ing an oath 12. In c tuses of defamation, prelates may freely correct, tin- King's prohibition notwithstanding ; first enjoining a corporal penance, whir//, if the party will redeem, tlie prelate may /awfully recti re the money, though the prohibition be shoire I. en [KB.— The words in italics, being rendered unnecessary by the 18 & 19 Vict. c. 41, are now repealed by the Stat. Law. Revn. Act, 1863, 26 & 27 Vict, c. 125.] SCANDALUM MAGNATUM. 3 Edw. I. Stat, Westminster I. c. 34 ante, p. 134 2 Rich. II. stat. I. c. 5 ante, p. 135 12 Rich. II. c. 11 • . . . . ante, p. 136 13 CAR. II. Stat. I. c. 1. [a.d. 1661.] Sect, 3. And to the end that no man hereafter may be misled into any seditious or unquiet demeanour out of an opinion that the Parliament begun and held at Westminster upon the third day of November, in the year of our Lord 1640, is yet in being which is undoubtedly dissolved and determined, and so is hereby declared and adjudged to be fully dissolved and determined, or out of an opinion that there lies an obligation upon him from any oath, covenant, or engagement whatsoever, to endeavour a change of government either in church or state, or out of an opinion that both Houses of Parliament, or either of them have a legislative power without the king, all which assertions have been seditiously maintained in some pamphlets lately printed, and are daily promoted by the [*709] active enemies of our peace and happiness: Be it therefore further enacted by the authority aforesaid, that if any person or persons at any time after the four and twentieth day of June, in' the year of our Lord 1661, shall (631) 560 APPENDIX 1). maliciously and advisedly, by writing, printing, preaching, or other speaking express, publish, niter, declare, or affirm that the Parliament begun at West- minster upon the third day of November, in the year of our Lord 1640, is not yet dissolved, or is not determined, or that it ought to be in being, or hath yet any continuance or existence, or that there lies any obligation upon him or any other person from any oath, covenant, or engagement whatsoever, to ( ndeavour a change of government either in church or state, or that both Houses of Parlia- ment, or either House of Parliament have or hath a legislative power without the king, or any other words to the same effect, that then every such person and persons so' aforesaid offending shall incur the danger and penalty of a premunire mentioned in a statute made in the 16th year of the reign of King Richard the Second. And it is hereby also declared that the oath usually called the solemn league and covenant was in itself an unlawful oath and im- posed upon the subjects of this realm against the fundamental laws and liberties of this kingdom, and that all orders and ordinances or pretended orders and ordinances of both or either Houses of Parliament for imposing of oaths, covenants, or engagements, levying of taxis, or raising of forces and arms, to which the royal assent either in person or by commission was not ex- pressly had or given, were in their first creation and making, and still are, and so shall be taken to be null and void to all intents aud purposes whatso- ever See ante, pp. 486, 488. 4 WILLIAM & MARY, c. 18. An Act to prevent malicious informations in the Court of King's Bench. [a.d. 1692.] Sect. 1. The clerk of the crown in the said Court of King's Bench for the time being shall not without express order, to be given by the said court in open court, exhibit, receive, or file any information for any of the causes afore- said, or issue out any process thereupon, before he shall have taken or shall have delivered to him a recognizance from the person or persons procuring such information to be exhibited with the place of his, her, or their abode, title, or profession, to be entered to the person or persons against whom such infor- mation or informations is or are to be exhibited in the penalty of twenty pounds, that he, she, or they will effectually prosecute such informations or information, and abide by and observe such orders as the said court shall direct, which recognizance the said clerk of the crown and also every justice of the peace of any county, city, franchise or town corporate (where the cause of any such information shall arise), are hereby empowered to take, after the tak- ing whereof by the said clerk of the crown, or the receipt thereof from any justice of the" peace, the said clerk of the crown shall make an entry thereof upon record, and shall file a memorandum thereof in some public place in his office, that all persons may resort thereunto without fee. And in case any person or persons against whom any information or informations for the causes aforesaid, or any [* 710] of them, shall be exhibited, shall appear thereunto and plead to issue, and that the prosecutor or prosecutors of such information or informations shall not at his and their own proper costs and t barges within one whole year next after issue joined therein procure the same to be tried, or if upon such trial a verdict pass for the defendant or defendants, or in case the said informer or informers procure a noli prosequi to be entered then m any ot the said cases the said Court of King's Bench is hereby authorized to award to the said defendant and defendants, his, her, or their costs, unless the judge before whom such information shall be tried shall at the trial of such informa- tion in open court certify upon record that there was a reasonable cause for exhibiting such information. And in case the said informer or informers shall not within three months next after the said costs taxed and demand made thereof, pay to the said defendant or defendants the said costs, then the said defendant and defendants shall have the benefit of the said recognizance to compel them thereunto. See ante, pp. 610, 613. (632) STATUTES. MR. FOX'S LIBEL ACT. 32 GEO. III. c. 60. 561 [a. d. 1792.] An Act to remove doubts respecting the Functions of Juries in Cttscs of Libel. Whereas doubts have arisen whether on the trial of an indictment or infor- mation for the making or publishing any libel, where an issue or issues are joined between the King and the defendant or defendants, or the plea of not guilty pleaded, it be competent to the jury impanelled to try the same to give their verdict upon the whole matter in issue: Be it therefore declared and enacted by the King's most excellent Majesty, and by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that on every such trial the jury sworn to try the* issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or informa- tion, and shall not be required or directed by the court or judge before whom such indictment or information shall be tried to find the defendant or defend- ants guilty merely on the proof of the publication by such defendant or de- fendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information. 2. Provided always, that on every such trial the court or judge before whom such indictment or information shall be tried shall, according to their or his direction, >f Parliamentary Papers. [\4th April, 1840.] Wiikkf.as it is essential to the due and effectual exercise and discharge of the functions and duties of Parliament, and to the promotion of wise legislation, that no instructions or impediments should exist to the publication of such of the reports, papers, votes, or proceedings of cither House of Parliament, as such House of Parliament may deem lit or necessary to he published : And whereas obstructions or impediments to such publication have arisen, and hereaftermay arise, by means of civil or criminal proceedings being taken against persons employed by or acting under the authority of the Houses of Parliament, or one of them, in the publication of such reports, papers, votes, or proceedings ; by reason and for remedy whereof it is expedient that more speedy protection should be afforded to all persons acting under the authority aforesaid, and that all such civil or criminal proceedings should be summarily put an end to and determined in manner hereinafter mentioned : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and" commons, in this present Parliament assembled and by the authority of the same, That it shall and may be lawful for any person or persons who now is, or are, or hereafter shall be, a defendant or defendants in any civil or criminal proceedings commenced or prosecuted in any manner soever, for or on account or in respect of the publication of any such report, paper, votes or proceedings by such person or persons, or by his, her, or their servant or servants, by or under the authority of either House of Parliament, to bring before the court in which such proceeding shall have been or shall be so com- menced or [*716] prosecuted, or before any judge of the same (if one of the Superior Courts at Westminster), first giving twenty-four hours' notice of his intention so to do to the prosecutor or plaintiff in such proceeding, a certificate under the hand of the Lord Chancellor of Great Britain, or the Lord Keeper of the Great Seal, or of the Speaker of the House of Lords, for the time being, or of the clerk of the Parliament or of the Speaker of the House of Commons, or of the clerk of the same House, stating that the report, paper, votes, or pro- ceedings as the case may be, in respect wdiereof such civil or criminal proceed- ing shall have been commenced or prosecuted, was published by such person or persons, or by his, her, or their servant or servants, by order or under the authority of the House of Lords or of the House of Commons, as the case may be, together with an affidavit verifying such certificate ; and such court or judge shall "thereupon immediately stay such civil or criminal proceeding, and the same, and every writ or process issued therein, shall be and shall be deemed and taken to be finally put an end to, determined, and superseded by virtue of this Act. 2. And be it enacted, that in case of any civil or criminal proceeding here- after to be commenced or prosecuted for or on account or in respect of the pub- lication of any copy of such report, paper, votes, or proceedings, it shall be lawful for the' defendant or defendants at any stage of the proceedings to lay before the court or judge such report, paper, votes, or proceedings, and such copy, with an affidavit Verifying such report, paper, votes, or proceedings, and the correctness of such copy, and the court or judge shall immediately stay such civil or criminal proceeding ; and the same, and every writ or process issued therein, shall be and shall be deemed and taken to be finally put an end to, determined and superseded by virtue of this Act, 3. And be it enacted, that it shall be lawful in any civil or criminal proceed iug to be commenced or prosecuted for printing any extract from or abstract of such report, paper, votes or proceedings, to give in evidence under the general issue, such report, paper, votes or proceedings, and to show that such extract or abstract was published bond fide and without malice ; and if such shall be the opinion of the jury, a verdict of not guilty shall be entered for the defend- ant or defendants. 4. Provided always, and it is hereby expressly declared and enacted, that nothing herein contained shall be deemed or taken, or held or construed, (637) 56G APPENDIX D. directly or indirectly, by implication or otherwise, to affect the privileges of Parliament in any manner whatsoever. See ante, pp. 185, 525. LORD CAMPBELL'S LIBEL ACT. 6 & 7 VICT. c. 90. An Act to amend the Law respecting Defamatory Words and Libel. [Mth August, 1843.] For the better protection of private character, and for more effectually securing the liberty of the press, and for better preventing abuses in exercising the said liberty, be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that in [*717] any action for defamation it shall be lawful for the defendant (after no- tice in writing of his intention so to do, duly given to the plaintiff at the time of riling or delivering the plea in such action) to give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defam- ation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there was an opportunity of making or offering such apology. See ante, pp. 322, 542. 2. And be it enacted, that in an action for a libel contained in any public newspaper or other periodical publication it shall be competent to the defendant to plead that such libel was inserted in such newspaper or other periodical pub- lication without actual malice, and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, he inserted in such newspaper or other periodical publication a full apology for the said libel, or, if the newspaper or periodical publication in which the said libel appeared should be ordinarily published at intervals exceeding one week, had offered to publish the said apology in any newspaper or periodical publication to be selected by the plaintiff in such action., and that every such defendant shall, upon filing such plea be at liberty to pay into court a sum of money by way of amends for the injury sustained by the publication, of such libel, and such payment into court shall be of the same effect and be available in the sum:' manner and to the same, extent, and he subject to the same rub* and regulations asto payment of costs am! the form of pleading, crept so far as regards the pleading of the additional facts hereinbefore required to be pleaded by such defendant, as if actions for libel had not been excepted from the personal actions in which it is lawful to pay money into court under an act pass, d in the session of Parliament held in the fou rth year of his late Majesty, intituled " An Act for the further amendment of tin law, and the better ad va ne, ' no nt of justice," and that to such plea to such action it shall be competent to the plaintiff to reply generally denying the whole of such plea. See ante, pp. 322, 541, 544, 577. 3. And be it enacted, that if any person shall publish or threaten to publish any libel upon any other person, or shall directly or indirectly threaten to print Or publish or shall directly or indirectly propose to abstain from printing or publishing, or shall directly or indirectly offer to prevent the printing or pub- lishing, of any matter or thing touching any other person, with intent to extort any money or security for money, or any valuable thing from such or any other person, or with intent to induce any person to confer or procure for any person any appointment or office of profit or trust, every such offender, on being con- victed thereof, shall be liable to be imprisoned, with or without hard labour in the common gaol or house of correction, for any term not exceeding three years: Provided always, that nothing herein contained shall in any manner alter^ or affect any law now in force in respect of the sending or delivery of threatening letters or writings. See ante, p. 426. 5. And be it enacted, that if any person shall maliciously publish any da- (.638) STATUTES. 567 famatory libel, knowing the same to be false, every such person, being convicted thereof , shall be liable to be imprisoned in the common gaol <>r house of correc lion for any term not exceeding two years, and to pay such tine as the court shall award. Bee ante, pp. 426, 601. [-'TIS] .I. And he it enacted, that if any person shall maliciously publish any defamatory libel, every such person, being convicted thereof, shall be liable to tine or imprisonment, or both, as the court may award, such imprisonment not to exceed the term of one year. See ante, pp. 38o, 426, 438. 6. And be it enacted, that on the trial of any indictment or information for a defamatory libel, the defendant having pleaded such plea as hereinafter men- tioned, the truth of the matters charged may be inquired into, but shall not amount to a defence, unless it was for the public benefit that the said matters charged should be published, and that to entitle the defendant to give evidence of the truth of such matters charged as a defence to such indictment or infor- mation, it, shall be necessary for the defendant, inpleadingto the said indictment or information, to allege the truth of the said matters charged in the manner now required in pleading a justification to an action for defamation, and further to allege that it was for the public benefit that the said matters charged should be published, and the particular fact or facts by reason whereof it was for the public benefit that the said matters charged should be published, to which plea the prosecutor shall be at liberty to reply generally, denying the whole thereof; and that if after such plea the defendant shall be convicted on such indictment or information, it shall be competent to the court, in pronouncing sentence, to consider whether the guilt of the defendant is aggravated or mitigated by the said plea, and by the evidence given to prove or to disprove the same : Provided always, that the truth of the matters charged in the alleged libel complained of by such indictment or information shall in no case be inquired into without such plea of justification : Provided also, that in addition to such pica it shall be competent to the defendant to plead a plea of not guilty : Provided also that nothing in this Act contained shall take away or prejudice any defence under the plea of not guilty, which it is now competent to the defendant to make under such plea to any action or indictment, or information, for defamatory words or libel. See ante, pp. 437, 596, 608. 7. And be it enacted, that whensoever, upon the trial of any indictment or information for the publication of a libel, under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall he competent to such defendant to prove that such publication was made without his authority, consent or knowledge, and that the said publication did not arise from want of due care or caution on his part. See ante, pp. 414, 433—436, 602. 8. And he it enacted, that in the case of any indictment or information by a private prosecutor for the publication of any defamatory libel, if judgment shall he given for the defendant, he shall be entitled to recover from the prosecutor the'eosts sustained by the said defendant by reason of such indictment or infor- mation; and that upon a special plea of justification to such indictment or information, if the issue be found for the prosecutor, he shall be entitled to such plea, such costs so to be recovered by the defendant or prosecutor respec- tively to be taxed by the proper officer of the court before which the said indict- ment or information is tried. See ante, pp. 609, 614. [*719] 9. xVnd be it enacted, that wherever throughout this Act, in describing the plaintiff or the defendant, or the party affected or intended to be affected by the offence, words are used importing the singular number or the masculine gender only, yet they shall be understood to include several persons as well as one person, and females as well as males, unless when the nature of the provi- sion or the context of the Act shall exclude such construction. 10 nothing in this Act contained shall extend to Scotland. [N.B.— The words in italics, "in s. 2, were repealed by the Civil Procedure (639) 568 APPENDIX D. Acts Repeal Act, 1879, 42 &43 Vict. c. 59, Schedule, Part II., as to the Supreme Court of Judicature in England ; and generally throughout England by the 46 & 47 Vict. c. 49, s. 4.] 8 & 9 VICT. c. 75. An Act to amend an Act passed in the Session of Parliament held in the Sixth and Seventh Tears of the reign of her present Majesty, intituled " An Act to amend the Law respecting Defamatory Words and Libel." [31st July, 1845.] Whereas by an Act passed in the session of Parliament held in the sixth and seventh years of the reign of her present majesty, intituled "An Act to aniend the law respecting defamatory words and libel," it is, amongst other thi igs enacted and provided, that the defendant in an action for a libel con- tained in any public newspaper or other periodical publication may plead cer- tain matters therein mentioned, and may upon filing such plea be at liberty to pay into court a sum of money by way of amends for the injury sustained by the publication of such libel, and it is thereby further enacted, that such pay- ment into court shall be of the same effect, and be available in the same manner and to the same extent, and be subject to the same rules and regulations as to payment of costs and the form of pleading, except so far as regards the plead- ing of the additional facts hereinbefore required to be pleaded by such defen- dant, as if action for libel had not been expected from the personal actions in which it is lawful to pay money into court under an Act passed in the session of Parliament held in the fourth year of his late Majesty, intituled " An Act for the further amendment of the law and the better advancement of justice." And whereas the said Act of the fourth year of the reign of his late Majesty relates only to proceedings in the Superior Courts in England, but by an Act passed in the session of Parliament held in the third and fourth years of the reign of her present Majesty, intituled " An Act for abolishing arrest on mesne process in civil actions, except in certain cases, for extending the remedies of creditors against the property of debtors, and for the further advancement of justice, in Ireland," a like provision is made for payment of money into court in all personal actions pending in any of the Superior Courts in Ireland as is contained in the said Act of the fourth year of the reign of his late Majesty in regard to actions pending in the Superior Courts in England, with a like excep- tion of actions for libel, and it is expedient to prevent any doubts as to the application of the said recited Act of the sixth and seventh years of the reign of her present Majesty to actions pending in the Superior Courts in Ireland which may be created' by reason of the omission of a reference in the last-mentioned Act to the [*720] said Act of the third and fourth years of the reign of her pres- ent Majesty : Be it therefore enacted and declared by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that when in any action pending in the Superior Courts of Ireland for a libel contained in any public newspaper or other periodical publication the defendant shall plead the matters allowed to be pleaded by the said first-men- tioned Act, and shall on filing such plea pay money into court as provided by such Act, such payment into court shall be of the same effect, and be available in the same manner and to the same extent, and be subject to the same rules and regulations now in force or hereafter to be made as to payment of costs and the form of pleading except so far as regards the pleading of the additional facts so required to be pleaded by such defendant, as if actions for libel had not been excepted from the personal actions in which it is lawful to pay money into court under the said recited Act of the third and fourth years of the reign of her present Majesty, 2. And be it declared and enacted, that it shall not be competent to any defendant in such action, whether in England or in Ireland, to tile any such plea, without at the same time making a payment of money into court by way of amends as prodded by the said Act, but every such plea so filed without pay- (th August . 1857.] Whereas it is expedient to give additional powers for the suppression of the trade in obscene books, prints, drawings, and other obscene articles : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Par- liament assembled, and by the authority of the same, as follows : 1. It shall be lawful for any metropolitan police magistrate or other stipen- diary magistrate, or for any two justices of the peace, upon complaint made before him or them upon oath that the complainant has reason to believe, and docs believe, that any obscene books, papers, writings, prints, pictures, draw- ings, or other representations are kept in any house, shop, room or other place within the limits of the jurisdiction of any such magistrate or justices, for the purpose of sale or distribution, exhibition for purposes of gain, lending upon lure, or being otherwise published for purposes of gain, which complainant shall also state upon oath that one or more articles of the like character have been sold, distributed, exhibited, lent, or otherwise published as aforesaid, at or in connection with such place, so as to satisfy such magistrate or justices that the belief of the said complainant is well founded, and upon such magistrate or justices being also satisfied that any of such articles so kept for any of the pur- poses aforesaid are of such a character and description that the publication of them would be a misdemeanour, and proper to be prosecuted as such, to give authority by special warrant to any constable or police officer into such house, shop, room, or other place, with such assistance as may be necessary, to enter in the daytime, and, if necessary, to use force, by breaking open doors or other- wise, and to search for and seize all such books, papers, writings, prints, pictures, drawings, or other representations as aforesaid found in such house, [* 723] shop, room, or other place, and to carry all the articles so seized before the magistrate or justices issuing the said warrant, or some other magistrate or justices exercising the same jurisdiction ; and such magistrate or justices shall thereupon issue a summons calling upon the occupier of the house or other place which may have been so entered by virtue of the saiil warrant to appear within seven days before such police or stipendiary magistrate or any two (642j KTATITKS. 6 71 justices in petty sessions for the district, to show cause why the articles BO seized should not be destroyed ; and if such occupier or some other person claiming to be the owner of the said articles shall no1 appear -within the time aforesaid, or shall appear, and such magistrate and justices shall be satisfied that such articles or any of them are of the character slated in the warrant, and thai such or any of them have been kept for any of the purposes aforesaid, it shall be lawful for the said magistrate or justices, and he or they are hereby required, to order the articles so seized, except such of them as he or they may consider necessary to be preserved as evidence in some further proceeding, to be destroyed at the expiration of the time hereinafter allowed for lodging an appeal, unless notice of appeal as hereinafter mentioned be given, and such articles shall he in the meantime impounded ; and if such magistrate or justices shall be satisfied that the articles seized are not of the character stated in the warrant, or have not been kept for any of the purposes aforesaid, he or they shall forthwith direct them to he restored to the occupier of the house or other place ill which they were seized. 2. No plaintiff shall recover in any action for any irregularity, trespass, or other wrongful proceeding made or committed in the execution of this Act, or in, under, or by virtue of any authority hereby given, if tender of sufficient amends shall have been made' by or on behalf 01 the parly who shall have com mitted such irregularity, trespass, or other wrongful proceeding, before such action brought ; and in case no tender shall have been made, it shall be lawful for the defendant in any such action, by leave of the court where such action shall depend, at any time before issue 'joined, to pay into court such sum of money as he shall think fit : whereupon such proceeding, order, and adjudica- tion shall be had and made in and by such court as in other action where defendants are allowed to pay money into court. 3. No action, suit, or information, or any other proceeding, of what nature soever, shall be brought against any person for anything done or omitted to be done in pursuance of this Act, or in the execution of the authorities under this Act, unless notice in writing shall be given by the party intending to prosecute such action, suit, information, or other proceeding, to the intended defendant, one calendar month at least before prosecuting the same, nor unless such action, suit, information, or other proceeding shall be brought or commenced within three calendar months next after the act or omission complained of. or. in case there shall be a continuation of damage, then within three calendar months next after the doing such damage shall have ceased. 4. Any person aggrieved by any act or determination of such magistrate or justice iii or concerning the execution of this Act, may appeal to the next gen- eral or quarter sessions for the county, riding, division, city, borough, or place in and for which such magistrate 'or justices shall have so acted, giving to the magistrate or justices of the peace, whose act or determination shall lie appealed against, notice in writing of such appeal and of the grounds thereof, within seven days after such act or determination and before the next general [* 724] or quarter sessions, and entering within such seven days into a recogni- zance, with sufficient surety, before a justice of the peace for the county, city, borough, or place in which such act or determination shall have taken place, personally to appear and prosecute such appeal, and to abide the order of and pay such costs as shall be awarded by such court of quarter sessions or any adjournment thereof; and the court at such general or quarter sessions shall hear and determine the matter of such appeal, and shall make such order therein as shall to the said court seem meet ; and such court, upon hearing and finally determining such appeal, shall and may, according to their discretion, award such costs to the party appealing or appealed against as they shall think proper ; and if such appeal lie dismissed or decided against the appellant or be not prosecuted, such court may order the articles seized forthwith to be destroyed: Provided always, that it shall not be lawful for the appellant on the hearing of any such appeal to go into or give evidence of any other grounds of appeal againsl any such order, act, or determination, than those set forth in such notice of appeal. 5. This act shall not extend to Scotland. See ante, p. 472. i043i 572 APPENDIX I). 23 & 24 VICT. c. 32. An Act to abolish the Jurisdiction of the Ecclesiastical Courts in Ireland in cases of Defamation, &c. [July 3rd, I860.] [N.B.— The portions of this Act which refer to the jurisdiction of the Eccle- siastical Courts in Ireland are now repealed as unnecessary by the Stat. Rev. Act, 1875, 38 & 39 Vict. c. 66. For the Ecclesiastical Courts themselves are altogether abolished by 32 & 33 Vict. c. 42, s. 21 ; and on January 1st, 1871, the ecclesiastical law of Ireland ceased to exist as law.] BURIAL LAWS AMENDMENT ACT, 1880. 43 & 44 Vict. c. 41. [September 1th, 1880.] Sect. 7. All burials under this Act, whether with or without a religious service, shall be conducted in a decent and orderly manner ; and every person guilty of any riotous, violent, or indecent behaviour at any burial under this Act, or wilfully obstructing such burial or any such service as aforesaid thereat, or who shall, in any such churchyard or graveyard as aforesaid, deliver any address, not being part of or incidental to a religious service permitted by this Act, and not otherwise permitted by any lawful authority, or who shall, under colour of any religious services or otherwise, in any such churchyard or grave- yard, wilfully endeavour to bring into contempt or obloquy the Christian relig- ion, or the belief or worship of any church or denomination of Christians, or the members or any minister of any such church or denomination, or any other person, shall be guilty of a misdemeanour. [* 725] NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. 44 & 45 VICT. c. 00. (See Chapter XIII., ante, pp. 374—393.) An Act to amend tlie Law of Newspaper Libel, and to provide for the Registration of Newspaper Proprietors. \2Tith August, 1881.] Whereas it is expedient to amend the law affecting civil actions and criminal prosecutions for newspaper libel ; And whereas it is also expedient to provide for the registration of newspaper proprietors : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of tlie lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. In the construction of this Act, unless there is anything in the subject or context repugnant thereto, the several words and phrases hereinafter mentioned shall have and include the meanings following ; (that is to say,) The word " registrar " shall mean in England the registrar for the time being of joint stock companies, or such person as the Board of Trade may for the time being authorise in that behalf, and in Ireland the assistant registrar for the time being of joint stock companies for Ireland, or such person as the Board of Trade may for the time being authorise in that behalf. The phrase " registry office " shall mean the principal office for the time being of the registrar in England or Ireland, as the case may be, or such other office as the Board of Trade may from time to time appoint. The w T ord " newspaper " shall mean any paper containing public news m- (644) STATUTKS. 573 telligence or occurrences or any remarks or observations therein [Qy. thereon] printed for sale and published in England or Ireland periodically or in parts or numbers at intervals not exceeding twenty-six days between the publication of any two such papers, pails or numbers. Also any paper printed in order to be dispersed and made public weekly or oftener, or at intervals not exceeding twenty-six days, containing only or principally advertisements. The word " occupation," when applied to any person, shall mean his trade or following, and it' none, then his rank or usual title, as esquire, gentleman. The phrase " place of residence " shall include the street, square, or place where the person to whom it refers shall reside, and the number (if any) or other designation of the house in which he shall so reside. The word " proprietor "shall mean and include as well the sole proprietor of any newspaper, as also in the case of a divided proprietorship the persons who, as partners or otherwise, represent and are responsible for any share or interesi in the newspaper as between themselves and the persons in like manner repre- senting or responsible for the other shares or interests therein, and no other person. 2. Any report published in any newspaper of the proceedings of a public meeting shall be privileged, if such meeting was lawfully convened for a lawful purpose and opened to the public, and if such report was fair and accurate, and published without malice, and if the publication of the matter complained of was [* 726] for the public benefit ; provided always, that the protection intended to be afforded by this section shall not be available as a defence in any proceeding, if the plaintiff or prosecutor can show that the defendant has refused to insert in the newspaper in which the report containing the matter complained of appeared a reasonable letter or statement of explanation or con- tradiction by or on behalf of such plaintiff or prosecutor. See note, ante, pp. 378—383. 3. No criminal prosecution shall be commenced against any proprietor, pub- lisher, editor, or any person responsible for the publication of a newspaper for any libel published therein, without the written hat or allowance of the Director of Public Prosecutions in England or her Majesty's Attorney-General in Ireland being first had and obtained. See ante, pp. 384, 589, 610. 4. A court of summary jurisdiction, upon the hearing of a charge against a proprietor, publisher, or editor, or any person responsible for the publication of a newspaper, for a libel published therein, may receive evidence as to the pub- lication being for the public benefit, and as to the matters charged in the libel being true, and as to the report being fair and accurate, and published without malice, and as to any matter which under this or any other Act, or otherwise, might be given in evidence by way of defence by the person charged on his trial on indictment, and the court, if of opinion after hearing such evidence that there is a strong or probable presumption that the jury on the trial would acquit the person charged, may dismiss the case. See ante, pp. 385, 590. 5. If a court of summary jurisdiction upon the hearing of a charge against a proprietor, publisher, editor, or any person responsible for the publication of a newspaper for a libel published therein is of opinion that though the person charged is shown to have been guilty the libel was of a trivial character, and that the offence m?.j be adequately punished by virtue of the powers of this section, the court shall cause the charge to be reduced into writing and read to the person charged, and then address a question to him to the following effect : " Do you desire to be tried by a jury or do you consent to the case being dealt with summarily ? " and, if such person assents to the case being dealt with summarily, the court may summarily convict him and adjudge him to pay a fine not exceeding fifty pounds. Section twenty-seven of the Summary Jurisdiction Act, 1879, shall, so far as is consistent with the tenor thereof, apply to every such proceeding as if it were herein enacted and extended to Ireland, and as if the Summary Jurisdiction Acts were therein referred to instead of the Summary Jurisdiction Act, 1848. See ante, pp. 386, 592. . (045) 574 APPENDIX D. 6. Every libel or alleged libel, and every offence under this Act, shall be deemed to be an offence within and subject to the provisions of the Act, el the session of the twenty-second and twenty third years of the reign of Her present, Ma jest v, chapter seventeen, intituled " An Act to prevent vexatious indictments for certain misdemeanours." *See ante, pp. 387, 589, 595. 7. Where, in the opinion of the Board of Trade, inconvenience would arise or be caused in any case from the registry of the names of all the proprietors of the newspaper (either owing to minority, coverture, absence from the United Kingdom, minute subdivision of shares, or other special circumstances), it shall [* 727] be lawful for the Board of Trade to authorise the registration of such newspaper in the name or names of some one or more responsible " representa- tive proprietors." [This section should have come after sect. 10. See ante, p. 387.] 8. A register of the proprietors of newspapers as denned by the Act shall be established under the superintendency of the register. 9. It shall be the duty of the printers and publishers for the time being of every newspaper to make or cause to be made to the Registry Office on or before the thirty-first of July one thousand eight hundred and eighty-one, and there- after annually in the month of July in every year, a return of the following particulars according to Schedule A. hereunto annexed ; that is to say, (a.) The title of a newspaper : (b.) The names of all the proprietors of such newspaper together with their respective occupations, places of business (if any), and places of residence. [The Act did not come into force till August 27th, 1881. See ante, pp. 388, 389.] . M 10. If within the further period of one month after the time hereinbefore appointed for the making of any return as to any newspaper such return be not made, then each printer and publisher of such newspaper shall, on conviction thereof, be liable to a penalty not exceeding twenty five pounds, and also to be directed by a summary order to make a return within a specified time. 11. Any party to a transfer or transmission of or dealing with any share of or interest in any newspaper whereby any person ceases to be a proprietor or any new proprietor is introduced may at any time make or cause to be made to the registry office a return according to the Schedule B. hereunto annexed and con- taining the particulars therein set forth. See ante, pp. 389, 561. 12. If any person shall knowingly and wilfully make or cause to be made any return by this Act required or permitted to be made in which shall be in- serted or set forth the name of any person as a proprietor of a newspaper who shall not be a proprietor thereof, or in which there shall be any misrepre- sentation, or from which there shall be any omission in respect of any of the particulars by this Act required to be contained therein, whereby such return shall be misleading, or if any proprietor of a newspaper shall knowingly andj wilfully permit any such return to be made which shall be misleading as to any of the particulars with reference to his own name, occupation, place of business (if any), or place of residence, then and in every such case every offender being convicted thereof shall be liable to a penalty not exceeding one hundred pounds. 13. It shall be the duty of the registrar and he is hereby required forthwith to register every return made in conformity with the provisions of this Act in a book to be kept for that purpose at the Registry Office and called " the register of newspaper proprietors," and all persons shall be at liberty to search and inspect the said book from time to time during the hours of business at the Registry Office, and any person may require a copy of any entry in or an extract from the book to be certified by the registrar or his deputy for the time being or under the official seal of the registrar. 14. There shall be paid in respect of the receipt and entry of returns made in conformity with the provisions of this Act, and for the inspection of the regis- ter of newspaper proprietors, and for certified copies of any entry therein, and in respect of any other service to be performed by the registrar, such fees (if any) as the Board of Trade with the approval of the Treasury may direct and as they t646) STATUTES. 575 [* 728] sbal] deem requisite to defray as well the additional expenses of the Reg- istry Office caused by the provisions of this Act, as also the further remunera- tions and salaries (if any) of the registrar, and of any other person employed under him in the execution of this Act, and such fees shall he dealt with as the Treasury may direct. See scale of fees, ante, p. 891. 15. Every copy of an entry in or extract from the register of newspaper pro- pri tors, purporting to be' certified by the registrar or his deputy for the time being, or under the official seal of the registrar, shall lie received as conclusive evidence of the contents of the said register of newspaper proprietors, so tar as the same appearin such copy or extract without proof of the signature thereto or of the seal of office affixed thereto, and every such certified copy or extract shall in all proceedings, civil or criminal, lie accepted as sufficient prima, facie evidence of all the matters and things thereby appearing, unless and until the contrary thereof be shown. See ante, pp. 889, 553, 561. 16. All penalties under this Act may be recovered before a court of sum- mary jurisdiction in manner provided by the Summary Jurisdiction Acts. Summary orders under this Act may be made by a court of summary jurisdiction, and enforced in manner provided by section thirty-four of the Summary Jurisdiction Act, 1879 ; and, for the purpose of tins Act, that section shall be deemed to apply to Ireland in the same manner as if it were re-enacted in this Act. 17. The expression "a court of summary jurisdiction" has in England the meanings assigned to it by the Summary Jurisdiction Act, 1879 ; and in Ireland means any justice or justices of the peace, stipendiary or other magistrate or magistrates, having jurisdiction under the Summary Jurisdiction Acts. The expression "Summary Jurisdiction Acts" has as regards England the meanings assigned to it by the Summary Jurisdiction Act, 1879 ; and as regards Ireland, means within the police district of Dublin metropolis the Acts regulating the powers and duties of justices of the peace for such district, or of the police of that district, and elsewhere in Ireland the Petty Sessions (Ireland) Act, 1851, and any Act amending the same. [These definitions should have formed part of s. 1.] 18. The provisions as to the registration of newspaper proprietors contained in this Act shall not apply to the case of any newspaper which belongs to a joint stock company duly incorporated under and subject to the provisions of the Companies Acts, 186*2 to 1879. 19. This Act sh 11 not extend to Scotland. 20. This Act may for all purposes be cited as the Newpaper Libel and Regis- tration Act, 1881. [*729] THE SCHEDULES TO WHICH THIS ACT REFERS. Schedule A. Return made pursuant to the Newspaper Libel and Registration Act, 1881. Title of the Newspaper. Names of the Proprietors. Occupations of the Proprietors. (647) Places | Places of of business 'Residence of (if any) of the] the Proprietors. Proprietors. 5 76 APPENDIX I). Schedule B. Return made pursuant to the Newspaper Libel and Registration Act, 1881. Title of Newspaper. Names of Per so n s who cease'w h o to be Pro prietors. Names of | Persons Occupation be come Pro- prietors. of new Proprietors Places of business (if any) of new Proprietors Places of Res i d e nee of new Proprietors (W) GENERAL INDEX. c * 73,) *#* The figures refer to the * pages between brackets [*]. ABATEMENT OF ACTION, 396, 398, 403, 407. ABSOLUTE PRIVILEGE, 184—196. (i.) Parliamentary proceedings, 185. (ii.) Judicial proceedings, 187. words spoken by a judge, 187. words spoken by counsel, 189. words spoken by a witness, 190. words in affidavits, &c, 191. (iii.) Naval and military affairs, 194. precedents of pleas of, 643, 644. ABUSE, mere general words of, 18, 108, 637. ACCESSORIES, to the publication of a libel, 155, 595, 599. ACCIDENTAL PUBLICATION, civil liability for, 5, 6, 155, 433, 638. criminal liability for, 432, 433. ACCOMPLICE, 155, 595, 599. may prove publication, 561. ACCORD AND SATISFACTION, plea of, 540, 654. ACTIO PERSONALIS CUM PERSONA MORITUR, 407. ACTION, within what time, 520. and in what Court, 518, 519, 588. letter before, 517. costs of, 365—373. notice of, 518, 631, 723. considerations before, 513. consolidation of, 525. previous, 521, 653. criminal proceedings, when a bar to, 9, 10, 522. joinder of causes of, 523. remitting, to County Court, 526, 585. who may maintain, 335, 394. proceedings in, are privileged, 187 — 194. on the case for words, 14, 92. [*732] ACTIONABLE PER SE, what language is, 18, 53—83, 306. what language is not, 83—92, 297. 37 LIB. & SLAN. (649) 578 . GENERAL INDEX. (The paging refers to the [*] pages.) ACTS, injurious to reputation without express words, 13. of public men, may be criticised, 36. ADJECTIVE, libellous charge may be conveyed by, 127. ADMINISTRATION OF JUSTICE, bond fide comments on, 44 — 46. publications reflecting on, 492 — 512. ADMINISTRATORS, right of action does not pass to, 407. ADMIRALTY, report to, privileged, 212. ADMISSION, by defendant, effect of, 561, 600. ADMONITION, communications by way of, 217, 245. ADULTERY, charge of, in writing, is libellous, 22. words imputing, not actionable, 61, 85. to a physician, 68, 85. to a clergyman, 68. to a married woman, 86, 87. law on this point considered, 87 — 89. " ADVENTURER," 20. ADVERTISEMENT, in newspaper, when privileged, 229, 230, 246. of tradesmen, maybe criticised, 32, 50, 51. of cure, may be criticised, 51. publication by, when evidence of malice, 230, 286. of reward for detection of crime, 232, 289, 646. ADVICE, when privileged, 213—215, 245, 645. on evidence, 555. " ADVISED SPEAKING," 466, 477, 479, 721. ADVOCATES, privilege of, 189, 190. reports of speeches of, 255. publication in vindication of character assailed by, 233. AFFAIRS OF STATE, may be criticised, 42 — 44. [* 733] AFFIDAVIT, defamatory statements in, privileged, 191 — 193. may be expunged, 192. in answer to interrogatories, 550 — 553. on applications for leave to file criminal informations, 610 — 612. in aggravation or mitigation of punishment, 608. AGENT, and principal, 409. principal's orders no defence, 410. evidence of authority to publish, 414, 434. (650) GENERAL INDEX. (The paging refers to the [*] pages.) ratification, 412. innocently publishing a libel, 160, 161, 411. principal not liable for malice of, 311. liability of principal for publication by, 411, 413, 433. AGGRAVATING CIRCUMSTANCES, must be justified, 171. AGGRAVATION OF DAMAGES, 309—311, 570. wide circulation of libel, 309. malice, 310. by plea of justification, 178, 278, 311, 569. 575. by injudicious cross-examination of plaintiff, 574. plaintiff's good character, 310. AGGRAVATION OF PUNISHMENT, affidavits in, 608. AGREEMENT, to accept the publication of mutual apologies, 654. to compromise, 578. promise to abstain from publishing a libel no consideration for, 8. ALIEN, 408, 409, 518. ALLEGORY, may be a libel, 6, 97, 131, 435. ALLUSION, libel by, 97, 566. AMBASSADORS, foreign, libels on, 422, 430. "AMBIDEXTER," 76, 110. AMBIGUOUS EXPRESSIONS, rule of construction as to, 103, 106 — 116. evidence as to meaning of, 566. meaning ascribed by innuendo must be adhered to, 101. AMENDMENT, of pleadings, 533, 544. at the trial, 572. of variances between words laid and those proved, 565. of indictment, 600, 601. of information, 613. [*734] AMENDS, evidence of, in mitigation of damages, 322, 657. ANAGRAM, may be a libel, 6. ANNUAL PROFITS, diminution of, 298, 303, 307. ANONYMOUS LETTER, shown confidentially, 207, 620. opinion as to handwriting of, when privileged, 240. ANSWERS, to interrogatories, 550—553. precedents of, 659 — 661. (651) 580 GENERAL INDEX. The paging refers to ihe [*] pages.) APOLOGY, 322—324, 541. should be demanded before action, 517. jury to judge of sufficiency of, 582, 657. should be frank and full, 324, 524. notice of intention to give evidence of, 542, 658. form of plea of, 322, 542, 656, 658. publication of, 345. APOTHECARY, words concerning, 71, 77. APPEAL, proceedings in the Court of, 580. from County Court, 587. APPEALS, to the public, may be criticised, 50—52. APPEARANCE, 524. APPOINTMENT, • to government office is matter of public concern, 43. proof of, 558. APPORTIONMENT, of costs of issues, 369. ARBITRATOR, costs where cause referred to, 368. cannot commit for contempt, 503. ARCHBISHOP, language concerning, 26. ARCHITECT, criticisms on the works of, 49, 71, 172. words concerning, 71, 78, 623. ARGUMENT, of the rule for a criminal information, 612. ARREST OF JUDGMENT, motion for, in civil cases, 580. in criminal cases, 599, 605, 606. [*735] ARSON, charge of, 113, 122, 130. ARTIST, criticism on the pictures and works of, 48, 49. ART-MASTER. libel on, 24, 117. ASSAULT, with intent to rob, charge of, actionable, 55. ASSERTION, of fact, bond fide comment, 35 — 38. ASTERISKS, put for plaintiff's name, 131, 601. ATTACHMENT, for contempt, 499. committal differs from, 499. (652) GENERAL INDEX. 581 (The paging refers to the [*] pages.) ATTACK by plaintiff on defendant, answer to, privileged, 232, 318. ATTEMPT, to commit a felony, charge of, actionable, 55, 57. words sufficient to impute, 124. ATTORNEY, slander of, 69, 70, 76, 77, 206, 627, 637. libels on, 28, 98, 105, 116, 228, 621, 649, 681. acting as advocate, privilege of, 190. not liable for asserting his client's rights, 143, 230. bill of costs of, not privileged, 194. publication of libel to, 208, 231. may give information unasked to client, 211. plaintiff, proof of qualification, 558. ATTORNEY-GENERAL, fiat of, in Ireland, when necessary, 383. AUCTIONEER, words concerning, 69, 82. libellous notice to, by person interested in proceeds of sale, 230, 239. AUTHOR, criticisms of works of, 48. liable as publisher, 157, 158, 432. AUTHORITY, given to another to publish a libel, 411 — 415, 433. when implied, 412. ratification, 412. in criminal cases, 413, 433, 434. A UTREF01S A CQ U1T, plea of, 596. A UTREFOIS CONVICT, plea of, 596. [*736] AVERMENTS, when necessary, 118 — 120, 530. in civil cases, need not be proved, 531. except of plaintiff's office or trade, 531, 568. in indictments and criminal informations, introductory averments still necessary, 593, 594, 601. of special intent, 423, 594. B. BAD CHARACTER, evidence of plaintiff's, 320, 321. BAIL, for appearance to take trial, 592. BANKER, refusing to honour a cheque, 13. circulation of rumour that bank had stopped payment, 207, 285. refusing to accept cheque of a particular bank, 24, 115, 240. BANKRUPT, can sue for libel or slander, 406. charges against, by trustee, privileged, 239, 285. BANKRUPTCY, imputation of, 6, 29, 80. (653) 582 GENERAL INDEX. (The paging refura to the [*] pages ) proceedings in, reports of, privileged, 252, 253. charge of having committed act of, 230, 24.0. no defence, 407. BARRISTER, slander of, 70, 75, 76. libels on, 27, 233. privilege of, 189. instructions to, absolutely privileged, 191. libel by, in law book, 5, 257. criminal information asrainst County Court Judge for refusing to hear, 431. report of speech of, in Court, 248, 255. BASTARD, imputation that heir-apparent is, 140, 141. charge of having had, not actionable, 86. except formerly under 18 Elizabeth, c. 3. . 59. "BAWD," 87, 133. BAWDY HOUSE, charge of keeping, is actionable, 56, 133. BEGIN, right to, always with plaintiff, 557. BELIEF, in truth of charge, necessary to privilege, 200, 205, 216. in truth, in mitigation of damages, 317. hearsay is probable ground for, 216, 282. [*737] BIGAMY, what words amount to a charge of, 123. charge of, is actionable, 55. BILL OF COSTS, not privileged, 194. BILL OF EXCEPTIONS, 580. BISHOP, words concerning, 75. charge of, privileged, 240. entitled to criminal information, 431. "BLACK-LEG," 23, 63, 84. "BLACK-LIST," libel on a trader in, 253. " BLACK-MAILING," 105. " BLACK-SHEEP," 23, 63. BLASPHEMOUS WORDS, 440—470. defined, 440, 701. mere denial of Christianity is not blasphemy, 442, 692. intent to bring religion into contempt, 441, 694. honest advocacy of heretical opinions, 442, 693. justification not allowed, 441. heresy distinct from blasphemy, 446. heresy, 447 — 450. statutory provisions, 464 — 467. jurisdiction of Ecclesiastical Courts, 448, 449. (654) GENKKAE INDEX. 583 (The paging refers to the [*] pages .) reports of proceedings in Courts of Justice as to, are not privileged, 254, 444. Nonconformity, 448. Unitarianism, 460—462. history of the law, 450—464, 696. punishment, 464. limitation of prosecutions for, 466. Common Law not affected by statutes, 466. Scotch Law as to, 462. suggested reforms of law as to, 467 — 470, 705. BOARD OF GUARDIANS, reports of meetings of, not privileged, 266, 379. BOARD OF TRADE, powers of, under Newspaper Libel and Registration Act, 1881, 387, 391. BONA FIDE COMMENT, no libel, 32—52. plea of, 575, 635—637. BONA FIDES of defendant, 38, 39, 200, 216, 282, 317. [*738] BOOK, reviews and criticisms of, 48, 49. in Latin, 162. not evidence of fact stated in it, 575. libellous, sale of, by bookseller's servant, 160, 410, 414. obscene, statute for preventing sale of, 472. private circulation, printed for, 49. BOOKSELLER, libel on, 32. liability of, for sale of libellous work, 160, 161, 410, 414. BREACH OF PEACE, libels tend to, 7, 423, 425. BREWER, words concerning, 80. BRIBERY, words imputing, actionable, 56. in offices of public trust, 71. at parliamentary election, comments on, 43, 213. contempt of court by offering a bribe to a judge, 495. BROTHEL, imputation of keeping, 56, 133, BROTHER, cannot sue for slander of sister, 15, 335. "BUNGLER," spoken of an artificer, is actionable, 67. " BUNTER," 110. BURGLARY, charge of, actionable, 55. BURIAL LAWS AMENDMENT ACT, 1880 . . 466, 724. (655) 584 GENERAL INDEX. (The paging refers to the [*] pages.) BURNING, in effigy, 6. BUSINESS, slander of persons in, 65 — 83, 531, 568. libels of persons in way of, 29 — 32. BUTCHER, words concerning, 82, 240. BYE-LAW, charge of breach of, 56, 57. placarding conviction for infringement of, 174. BYSTANDER, at trial, remarks of, not privileged, 191. CALLING, words injuring plaintiff in the way of his, when written, 19, 29 — 32, 531, 568. when spoken, 65, 79 — 83. [*739] CAMBRIDGE, resident undergraduate of, where sued, 520. CANDIDATE, for office, words concerning, 43, 44, 73, 241. private life of, when open to discussion, 43, 233, 246. CANT, or SLANG TERMS, 109, 110, 566. CAPTAIN OF SHIP, words concerning, 27, 32, 218, 231. CARD-SHARPING, charge of, 110, 174. CARICATURE, libel by means of, 6, 20. CARPENTER, words concerning, 69. CASE, action on the, where slander will not lie, 14, 92. CAUSES OF ACTION, joinder of, 523. CAUTION to tradesmen, when privileged, 214 — 221. CENSORSHIP OF PLAYS, 11. CENSORSHIP OF THE PRESS, 10—13. CENSURE, words of, by a judge absolutely privileged, 188, 189. CERTAINTY, how ensured formerly, 118. early technicalities, 118. of the imputation, 120. criminal charges, 121 — 124. (656) GENERAL IXDKX. 585 (The paging refers to the [*] pages.) indirect imputations. as to person defamed, 127 — 133. CERTIFICATE of entry in register of newspapers, 390, 553, 561. of previous conviction, 573. for costs, 579. CERTIORARI for removal of indictment for libel, 597. costs when indictment removed by, 609. CHALK-MARK may be a libel, 6. CHALLENGE TO FIGHT, sending, a misdemeanour, 425. [*740] CHAMBERS, judge at, power of, to commit for contempt, 503. report of proceedings in, privileged, 252. CHANGE OF VENUE, 557. CHARACTER, proof of plaintiff's special, 558. of servant, prima facie privileged, 201, 274, 618, 643. bond fide communications as to, 203 — 221. master not bound to give, 202. maliciously giving bad, 274, 279. evidence of good, not receivable unless impeached, 310. evidence of plaintiff's bad, 320, 321. evidence for defendant as to, on trial of indictment, 603. of witnesses, evidence to impeach, 573. CHARGE of crime must be precise, 120 — 127. of attempt to commit a crime, 57, 124. of an impossible crime, 63. of being a felon, 54—57, 172. of being a returned convict, 179. to a constable in his character as such, 221, 274. CHARITABLE INSTITUTION, criticisms on officers of, 47, 244. trustees of, words concerning, 26, 419. private, not to be criticised, 47. report by officer of, privileged, 221. CHASTITY, charge of want of, not actionable, 86 — 89. actionable if in writing, 22. "CHEAT," 62, 82. CHEATING, charge of, libellous, 22, 23. in way of trade, actionable, 81. CHEQUE, action for dishonouring, 13. refusal to receive, of a particular bank, 24, 115, 240. (657) 586 GENERAL INDEX. (The paging refers to the [*] pages.) CHILD, liability of, 405. parent not answerable for wrongs by, 413. CHOICE OF COURT, 519. CHRISTIANITY, publications against, 440 — 470. part of the common law, 452, 691. CHURCH MEETING, words spoken at, may be privileged, 243. [*741] CHURCHWARDEN, slander of, 63. CIRCULARS of tradesmen, may be criticised, 32, 50, 51. issue of, when restrained by injunction, 146, 147, 342 — 364. when privileged, 240. CIRCULATION OF LIBEL, extent and mode of, 281, 293. CLAIM, statement of, 528—532, 618—633. by husband for words defamatory of wife, 394, 631. by wife alone, 395. joint and several, 419. particulars of, 633. CLASS, religious order or community, libels on, 429. CLERGYMEN, criticism on the public action of, 40, 47, 48, 52. words affecting them in office, 26, 47, 48, 73, 625. charges of incontinency and immorality against, 68, 73 — 75. deprivation of office the ground of action, 73. plaintiff must hold benefice or office at the time of the slander, 71. slander by, in sermon, &c, 5, 242. libels by, on schoolmaster in parish, 275. general reflections on the clergy of a particular diocese, 429. CLERK, words concerning, 79. to vestry, words concerning, 27. to justices, words concerning, 27. words by, not privileged, 189. " CLIPPER," 110. CLUB, "blackballed," 21. notice posted in, 23. charge of misconduct in, 84, 300, 680. COINING, charge of, 59, 624, 639, 641. COLLOQUIUM, or application of the slander, 118. provisions of C. L. P. Act as to, 120. (658) GENERAL INDEX. 58' (The paging refers to the [*] pages.) COLONIAL COURTS, power of, to commit for contempts, 503. COLONIAL LEGISLATIVE ASSEMBLI KS, power of, to commit for contempt, 4!)U, 491. COMMANDS of muster no defence to servant, 410. [*742] COMMENTS on matters of public interest, 32 — 52, 635, 636. every citizen has a right to make, 32, 35. not privileged in the strict sense of that term, 33. differ from reports, 35, 36, 38, 259. on matters of local interest, 41. bad motives must not be recklessly imputed, 38, 39. honest belief in truth of, not alone sufficient, 38. limits on, 35 — 40. affairs of State, 42—44, 635, 636. trials in law courts, 44—46. public institutions and local authorities, 46, 47. parochial charity, 47. ecclesiastical affairs, 47, 48. books and pictures, 48, 49. architecture, 48, 49, 71, 172. theatres and concerts, 49, 50. public entertainments, 49, 50. appeals to the public notice, 50 — 52. advertisements and circulars, 32, 50, 51. controversy in newspapers, 50 — 52, 232. on imaginary facts, 35, 37, 38. PRECEDENTS OF PLEAS OP BONA FIDE, 635, 636- COMMISSION to examine witnesses, 556. costs of, 579. COMMITTEE of charity, communications to, by, 240, 244. of House of Parliament, petition to, privileged, 186. members have a common interest, 243, 648. COMMODITIES of tradesmen, verbal imputations upon, 81, 147. libel on, 30, 31, 147—150. "COMMON FILCHER," 62. COMMON INTEREST is a ground of privilege, 238—247, 648. what amounts to, 238, 648, 649. COMMONS, HOUSE OF, petition to, is privileged, 186, 290. libels on, 488. contempts of, 488. member of, may be committed for contempt of court, 512. COMPANIES and corporations, 415. may sue for slander of title, 416. costs of proceedings, 373, 609, 610. may sue a shareholder for libel, 30. (659) 588 GENERAL INDEX. (The paging refers to the [*] pages.) liability of, for acts of servants, 416. proceedings of, at meetings of shareholders, privileged, 240, 246. directors of, privilege of, 238, 243, 244, 247. [*743] COMPARISON of handwriting, 560, 599. COMPETITION between rival traders, 31, 147. COMPOSITION of libel without publication, not actionable, 157. COMPROMISE in civil case, 578. not generally allowed in criminal cases, 613. CONCERTS may be criticised, 49. CONFESSION of publication, 561. CONFIDENTIAL COMMUNICATIONS, 204—221. in answer to inquiries, privileged, 204: — 208. volunteered, 208—210. in discharge of a duty arising from relationship, 210—213. volunteered where no confidential relationship, 213 — 221. CONFIDENTIAL RELATION, defined, 210. CONSOLIDATION of actions, 525. CONSORTIUM, loss of, 88, 300, 335. CONSPIRACY, charge of, actionable, 56. CONSTABLES, words concerning, 189, 241, 289, 334. words spoken on giving plaintiff in charge of, are privileged, 221 — 225. CONSTITUTION, libels against the, 485 — 488. CONSTRUCTION, 93—133. what meaning the speaker intended to convey is immaterial, 93, 106, 574. libel or no libel is a question for the jury, 25, 94, 361, 566, 578, 579. duty of the judge, 95, 578. words not to be construed in mitiori sensu, 95 — 97. jury to consider the words as a whole, 25, 98. evidence of other defamatory publications, 98, 272. office of the innuendo, 99 — 103. words obviously defamatory, 104, 105. words prima facie defamatory, 106 — 108. neutral words, 109 — 112. words prima facie innocent, 112 — 116. ironical words, 116. words spoken in jest, 5, 106, 108, 574, 639. words clearly innocent, 116, 117. after verdict, 605. (660) GENERAL INDEX. 589 (The paging refers to the [*] pages .) [*744] CONTAGIOUS DISEASE, charge of having, actionable, 64, 65, 625. CONTEMPTIBLE, words rendering plaintiff, libellous, 19/20. CONTEMPTS of the King, 479. of the Government, 481—485. of Parliament, may be dealt with in the law courts, 488, 489. how punished by the House of Lords, 489. how by the House of Commons, 489. the propriety of committal by, cannot be questioned in courts of law, 490. of Colonial Legislative Assemblies, 490, 491. their power to exclude, 491. of courts of law and judges, 492. of Superior Courts, 492. proceedings against offenders for contempt, 492, 494, 498. member of Parliament may be committed for, 512. judge at chambers, 503. attachm -nt and committal, 499. publications prejudicial to fair trial of action, 494—498. injunctions to restrain, 337 — 339. Scotch law as to, 354. of inferior courts of record, 506. no power to commit except for those committed in face of court, 506. statutory powers, 509 — 511. county courts, 509. of inferior courts not of record, 508. sureties for good behaviour, 508. of ecclesiastical courts, 512. letters to judge may be, 191. CONTEMPTUOUS DAMAGES, 294. CONTEXT must be considered, 25, 98, 482, 579. CONTRACT as to libels'cannot be enforced, 7, 8. promise not to publish a libel is no consideration for, 8. CONTRADICTION, letter of, refusal to publish, 378, 383, 726. CONTRIBUTION, none between tort-feasors, 158. CONTROVERSY in the newspapers, 50 — 52, 232. "CONVICTED FELON," 59, 172, 573. CONVICTION, summary, before justices, reports of, 248. proof of, 573. placards notifying, at railway stations, 174. [*745] COPYING LIBELS from one newspaper into another, 160, 314, 577 COPYRIGHT, none in immoral or libellous work, 8. (661) 590 GENERAL INDEX. (The paging refers to the [*] pages.) CORONER, defamatory statement made at inquest, 188, 228. has power to eject disturber, 507. CORPORATIONS may sue for libel, 30, 415. costs of proceedings, 373. may sue for slander of title, 416. may be sued for libel, 5, 416. not for slander, 416. may be sued for acts of agents, 416. criminally liable, 417. CORRUPTION in office, charge of, 26, 27, 37, 67, 126, 279. COSTS, 365—373, 579, 608. now follow the event, 365. all early statutes as to costs repealed by Judicature Act, 366. application to deprive successful plaintiff of costs, 366. successful defendant cannot be ordered to pay, 367. of separate issues, 369. of former trial, 372, 584. of husband and wife, 372. of public bodies, 373, 609, 610. of commission to examine witnesses, 579. bill of, not privileged, 194. after payment into court, 370. of counterclaim, 371. security for, 396, 407, 525, 609. certificate for, 579. practice as to asking for, 366, 579. married women liable for, 372, 398, 402, 580. special costs, 368, 579. in actions remitted to County Court, 368, 372, 587. in local Court of Record, 368, 588. on writ of inquiry, 368. jury not to consider question of, 296, 579. of indictment, 609. of criminal information, 613. COUNSEL, slander of, 70, 75, 76. libel on, 27, 233. privilege of, 189. instructions to, absolutely privileged, 191. libel by, in law book, 5, 257. criminal information against County Court judge for refusing to hear, 431. report of speech of, in court, 248, 255. [*746] COUNTERCLAIM, 543. costs of, 371, 372. may be struck out, 421, 543. COUNTS in an indictment, 595. COUNTY, proof of publication within, 600. COUNTY COURT, no jurisdiction in actions for slander or libel, except by consent, 526, 584. remitting action to, 372, 526, 585. (662) • (JKNKUAL index. 591 (The paging refers to the [*] pages.) subsequent proceedings, 586. jury, 587. trial, 587. new trial, 587. costs, 587. contempts of, 509 — 511. criminal information against judge of, 431. FORMS OF PRECEDENTS, NOTICES, &C, 070 — 673. COURT, choice of, 519. payment into, 324, 370, 541, 655, 656. Divisional, proceedings in, 580. of Appeal, proceedings in, 580. proceedings in County Court, 584: — 588. university, proceedings in, 520. COURT OF PASSAGE, jurisdiction of, 588. costs in, 588. COURTS MARTIAL, defamatory statements made in course of proceedings by, 189, 193. report of proceedings in, 259. COURTS OF JUSTICE, proceedings of, absolutely privileged, 187 — 194» report of proceedings of, privileged, 24S. may be forbidden, 339. comments on proceedings of, 40, 44 — 46. contempts of Superior Courts of Record, 337, 492 — 504. Colonial Courts, 503. Inferior Courts, 504. Inferior Courts of Record, 506. proceedings in County Court, 584. other Inferior, 518, 588. COURTS OF PETTY SESSION, defamatory statements made in the regular course of proceedings at, privileged, 187. reports of proceedings, privileged, 248. "COZENER," 62. [*747] CREDIT, of traders, libels affecting, 6, 29, 31. words affecting, 65, 79—83, 628. cross-examining to, 320, 546, 573. CRIME, libel is, slander is not a, 6, 422, 551. words conveying direct charge of, actionable, 53, 58. statement that plaintiff had been accused of crime, 19, 57. words not necessarily imputing, actionable if written, 19. imputation must be specific, 120 — 127. person charged must be certain, 127. words of suspicion only, 57. imputing the murder of a person yet alive, 63. attempting to commit, 55, 57, 124. infamous, threat to accuse of, 427. solicitation of hiring to commit, 56. iustification as to charge of committing, 178, 576. (663) 592 GENERAL INDEX. - (The paging refers to the [*] pages.) proof of conviction, 573. information of, given to public officer, privileged, 221—225. CRIMINAL INFORMATION, 9, 427—431, 610—614. fiat of public prosecutor not required for, 384, 589. two kinds of, 426. where granted, 428 — 430. application must be made promptly, 429. practice and evidence, 610 — 614. motion for order nisi, 610. affidavits on application for, 610 — 612. argument on application for, 612. compromise, 613. trial, 613. costs, 613. PRECEDENTS OF, 673 — 678. CRIMINAL LAW, 422—439. publication, 432—436. privilege, 436. justification, 437. remedy by indictment, 422. special intent, when necessary, 423. punishment at common law, 422, 425. statutes, 426. remedy by information, 427 — 431. libels on foreign ambassadors, public personages, &c, 422, 430. considerations as to criminal proceedings for libel, 7, 9. practice and evidence, 589 — 614. CRIMINAL LIABILITY, of a married woman, 404. of an alien, 408. of an infant, 405. of agent or servant, 410. of master or principal, 413, 433. of a corporation, 417. of a lunatic, 406. [*748] CRIMINAL PLEADINGS, precedents of, 673 — 687. CRITIC, duties of, 34, 35. CRITICISM, right of, 32—52. distinguished from defamation, 33, 34. of public men and institutions, 36 — 47. must be fair and bond fide, 38, 39. on public entertainments, &c, 49, 50. of books, pictures, and architecture, 48, 49. ridicule of author permitted, 49. CROSS-EXAMINING "TO CREDIT," 320, 546, 573. CROWN CASES RESERVED, Court for consideration of, 606. CRUELTY, charge of, libellous, 22, 37. " CUCKOLD," 86. (664) GENEEAL INDKX. 593 (The paging refers to the [*] pages.) CUSTOM, loss of, as special damage, 298, 302, 303. evidence as to loss of, 307, 309. of London, as to charge of whoredom, GO, 86. CUSTOMERS, complaints by privileged, 231. D. DAMAGES, general and special damage defined, 291. I. General damages, 293. different kinds of, 294, 295. amount of, is a question for the jury, 293, 296, 579, 583. when presumed without evidence, 293, 294. must be assessed once for all, 295, 579. costs should not be considered in assessing, 296, 579. excessive, 296, 581, 583. loss of custom, 294, 303. evidence of, 570. II. Special damage wJiere the words air not actionable per se, 297. what constitutes, 297. 298. must be pleaded, and proved, 297, 302. what a sufficient allegation of, 302. loss of individual customers, 303. diminution in profits, 303, 304. subsequently arising, 306. III. Special damage where the words are actionable per se, 306. what may be considered in assessing, 307. subsequent to action, 308. [*749] DAMAGES— continued. IV. Evidence for the plaintiff in aggravation of damages, 309. what admissible as, 309, 310. extensive publication, 159,161, 230, 243, 286, 309. plaintiff's good character, 310. V. Evidence for tlit defendant in mitigation of damages, 312. (i.) Evidence falling short of a justification, 312. justification of part of the libel, 176. 312. (ii.) Previous publications by others, 174, 313, 314, 577. (hi.) Liability of others, 157, '315 420, 576. other actions, not to be considered, 158, 316, 547, 577. (iv.) Absence of malice, 317, 318. (v.) Evidence of plaintiff's bad character, 320, 321, 577. (vi.) Absence of special damage, 322. (vii.) Apology and amends, 322 — 324, 541. VI. Remoteness of damages, 325. damages must be the direct residt of defendant's words, 326. damage caused by the act of a third party, 32S. not essential that such third party should believe the charge, 329. third person compelled to repeat defendant's words, 330. damage caused by repetition of a slander, 331. husband and wife, 335. damage must have accrued to the plaintiff himself, 335. 38 LIB. & slan. (665) 594 GENERAL INDEX. (The paging refers to the [*] pages.) DANCING-MISTRESS, slander of, 69. DEAD. libe's on the, 422—424, 682. intenl must be proved, 423. slander of, 335. DEATH, charge of being the cause of, 77, 121, 122. " guilty of the death of D." is actionable, 121. of party to action, effect of, 407. DEBATES IN PARLIAMENT, reports of, 263. DEBT, unfounded claim of, not actionable, 24, 81. letter repudiating, 231. DECREES OF STAR CHAMBER, regulating the press, 10, 11. DEER STEALING, charge of, actionable, 61. DEFAMATION, defined, 1.7. jurisdiction of Ecclesiastical Courts abolished, 17, 61, 88, 722. DEFAMATORY WORDS, defined, 1, 17. classified, 17—92. What are not in their nature, 89 — 92. [*750] DEFAULT, judgment by, 526. " DEFAULTER," 20, 27. DEFENCE, 534—543. that words are not defamatory, 635 — 640. justification, 170—180, 538, 641—643. privilege, 181, 537, 643—653. absolute privilege, 184—196, 643, 644. qualified privilege, 197—268, 644—652. infancy, no defence, 405. insanity, no defence, 406. drunkenness, no defence, 655. master's commands, no defence, 410. instructions for, 532. traverses, 633. objections on points of law, 536, 634. accord and satisfaction, 540. Statute of Limitations, 520, 540, 653. previous proceedings, 526, 540, 653. apology, 322—324,^541, 155, 657. payment into court, 541, 655, 656. other special defences, 540, 654. justification in criminal cases, 437 — 439, 674, 684. innocent publication, 155, 411, 433, 639. publication to plaintiff only, 151, 152, 432, 637. precedents op, in actions of libel and slander. 633 — 658. slander of title, 663—667. (666; GENERAL INDEX. 595 (The paging refers to the [*] pages.) DEFENDANT, married woman, 396, 400 — 405. matters to be considered by, 524. may be called by plaintiff, 562. evidence for, 57 i — 577. successful, cannot be ordered to pay costs, 367. whom to be made, 155, 157, 432, 515—517. joint; 420. no contribution between or indemnity to, 158, 316. evidence of good character, on indictment, 603. DEFINITION, of libel, 1, 6, 19, 463. of slander, 1, 6, 53. of defamatory words, 1, 6, 17, 36. of publication, 151. of reputation, 151. of confidential relationship, 210. of malice, 4, 271. DELIVERY, of libel to third person, when a publication, 157, 432, 433. DEMANDING MONEY WITH MENACES, charge of, actionable, 55. BE MINIMIS JS'ON CURAT LEX, 2, 18. [* 751] DEMURRER, proceedings in lieu of, in civil cases, 53&. in criminal cases, 596, 683. joinder in, 684, 687. to a plea, 686, DESTRUCTION of obscene works, justices may order, 472, 473. " DIFFICULTIES," charge of being in, libellous, 21, 29. DIRECTOR OF PUBLIC PROSECUTIONS, fiat of, where necessary, 9, 383, 384, 589. DIRECTORS OF COMPANY, reports of, to shareholders, privileged, 240. charges against, when privileged, 240, 244, 246. statement to, by co-directors, privileged, 244. have a common interest, 238, 247. costs of libels on, 373, 609. DISCOVERY of documents, 553 — 555. what documents are privileged from, 554. state papers, 555. by interrogatories, 545 — 553. iti County Court, 586, 587. DISEASE, INFECTIOUS OR CONTAGIOUS, charge of having, 53, 64, 65, 625. DISHONESTY, charge of, written, 19, 20, 30. verbal, 57, 62, 81—84, 628. imputation of, in giving character of servant, 203, 274. (667) 50(5 GENERAL INDEX. (The paging refers to the [*] pages.) DISSENTING MINISTER, words concerning, 26, 243, 305, 308. DIVORCE, assertions thai husband is seeking, a libel on wile, 23. DOCUMENTS, discovery of, 553 — 555. inspection of, 553. DOOR, officer may break open outer, 499. 722. DOUBTFUL MEANING, words of, 106—116, 565—567, 574. DRUNKENNESS, charge of, 27, 68. 69, 74, 88, 228, 285- no defence, 655. DUEL, challenge to fight a, 425. [* 752] " DUFFING," charge of, 111. " DUNCE," actionable, if spoken of a lawyer, 70. DUTY, as ground of privilege, 199 — 229. may be moral or social, 199. E. ECCLESIASTICAL AFFAIRS may be criticised, 47, 48. ECCLESIASTICAL COURTS, jurisdiction of, in cases of defamation, 61, 88. abolished, 17, 61, 88, 722. blasphemy, 447 — 450. law of, how far part of English Common Law, 449 — 450. cannot commit for contempt, 512. EDITOR OF NEWSPAPER, words concerning, 22, 28, 29, 642. may comment on matters of public interest, 32 — 52- joint liability for publication of libel, 157—160, 382, 384—387. liability to proprietor, 158. reports published by, 265—268, 377, 382. EFFIGY, libel by means of, 6. burning in, 6. assertion that plaintiff had been hung in, 23. EMBEZZLEMENT, words imputing, actionable, 55, 64, 122. EMPLOYER, liability of, 411, 413. 433. EMPLOYMENT, loss of, is special damage, 298. (668) GENERAL INDEX. 597 (The paging refers to the [*] pages.) ENDORSEMENT ON WRIT, 533. is privileged, 191. ENGAGEMENT, notice of termination of, not libellous, 24. ENGINEER. libel on, 31. ETIQUETTE, charge of a breach of, not actionable, 27. EVENT, costs to follow, 365. where separate issues, 369. [*753] EVIDENCE, 1. In civil cases, advice on, 555. of appointment to office, &c, 558. of publication, 559. copy of register of newspaper proprietors, 391, 392, 560. as to innuendo, 565. as to the libel, 562. secondary, 563. as to speaking the slander, 564. of plaintiff's good reputation, 310. bad character, 320, 321. that the words refer to plaintiff, 567. that the words were spoken of him in the way of his trade, 568. of malice, 272, 281, 286, 568. of other libels or slander, 276, 569. of damage, 570. in aggravation of damages, 309 — 311. in mitigation of damages, 312 — 324, 577. of plaintiff's distress of mind, 298, 301. of loss of trade, 302—306. as to handwriting, 559, 560. of admissions by defendant, 561. of personal ill-will, 272, 275. for defendant, 572—577. of privilege, 575. of a justification, 170, 575. of an apology, 322. 2. In criminal cases, (i.) In proceedings by way of indictment, for the prosecution, 599. for the defence, 433, 601. (ii.) In criminal informations, for the prosecution, 610. for the defence, 612. EX PARTE PROCEEDINGS, reports of, 248. EXAGGERATION will destroy privilege, 245. may be evidence of malice, 283 — 285. EXAMINATION OF WITNESSES BEFORE TRIAL, 556. EXCEPTIONS, BILL OF, 580. (669) 5<)8 GENERAL INDEX. (The paging refers to the [*] pages.) EXCESS in mode and extent of publication, 159, L61, 230, 243, 28G, 309. EXCOMMUNICATED, charge of having been, is actionable, 61. EXECUTORS, 407. have a common interest, 238. action for slander of title survives to, 408. EXEMPLARY DAMAGES, when allowed, 295. [*754] EXPERTS, evidence of, 560. EXTORTION, charge of, 28. by threat to accuse of an infamous crime, 427. publish a libel, 426. F. FACT, assertion of, is not comment, 35,. 36, 38. | FAIR REPORT, what is meant by, 255 — 263. question for jury, 262. " FALLING SICKNESS," charge of having, 65, 76. FALSE BOOKS, charge of keeping, 81. FALSE NEWS, devisers of, 134, 135, 425. FALSE PRETENCES, charge of obtaining a horse by, 124. money by,- 259. FALSE WEIGHTS, charge of using, 81. FALSEHOOD need not be shown by plaintiff, 170. exceptions, 13!), 343. when evidence of malice, 278, 569. FATHER, publication to, of complaint of child's misconduct, privileged, 212, 217. son cannot sue for slander of deceased, 15, 335. may take criminal proceedings, 422, 682. FEELINGS, injury to, 300—302, 307. FEES, scale of, under Newspaper Libel and Registration Act, 1881 . .391. "FELON," 22, 59. meaning of, 172. FELONY, what amounls to a charge of, 120 — 127, 178. imputation of, actionable, 55. (G70) GENERAL INDEX. 599 (The paging refers to the [*] pages.) FIAT of public prosecutor, in case of newspaper libel, 9. 383, 589. not required for criminal information, 384, 589. [*755] FICTITIOUS NAMES, use of, to conceal defamation, 129. FIGURATIVE EXPRESSIONS, libel by, 23, 105, 56(5. FIREMEN, words concerning, 69, 132. FIRM, may sue for imputation of insolvency of one member, 83, 419. libels on, 336, 417—419. liability of, for libel by partner or servant, 418. FISHERY ACTS, charge of offence against, not actionable, 56. FLOWER SHOW, may be criticised, 49. FOREIGN AMBASSADORS, libellous reflections on, 422, 430. FOREIGN LANGUAGE, slander or libel in, 109, 152, 162, 435, 619. FOREIGNER, plaintiff, security for costs by, 408, 525. liability of, for libel or slander, 408. FORGERY, charge of, actionable, 55. what words a sufficient charge of, 61, 122. FORMER PROCEEDINGS, 521, 540, 653. costs of, 372. against other defendants, immaterial, 158, 316, 547, 577. FORMER PUBLICATION, of same libel by others, no defence, 157, 313, 315, 576. no evidence of its truth, 174, 577. how far mitigation of damages, 313, 327. by the defendant, 277, 310. FORMS, of pleadings, notices, &c, App. A. 615 — 687. FORNICATION, charge of, not actionable, 85, 87. " FORSWORN," 62, 124. FOX'S LIBEL ACT (32 Geo. III. c. 60), 13, 94, 362, 604, 710. FOXES, charge of poisoning, libellous, 23. charge of trapping, against a gamekeeper, actionable, 79, 115. (671) 600 GENERAL INDEX. (The paging refers to the [*] pages.') FRAUD, charge of, actionable, if written, 21. if spoken in way of trade, 29. not otherwise, 62. imputation of, to opponent, generally unprivileged, 229, 231. [*756] FREEDOM of the press, 10, 248—268. FRESH ACTION, for same words, 521, 540, 653. FRESH DAMAGES, as a rule, no action lies for, 295, 306. "FROZEN SNAKE," 20. judicial notice of meaning of, 105, 566. "FUDGE," 99. GALLOWS, may be a libel in effigy, 6. " GAMBLER," 63. GAME, charge of killing, 24, 115. GAMEKEEPER, words concerning, 79, 115. GENERAL DAMAGES, defined and distinguished from special damage, 291. amount entirely in discretion of jury, 293, 296. GENERAL ISSUE, abolished in civil cases, 534. on trial of indictment or information, 596. GIST of an action of slander, 18, 19. GONORRHOEA, charge of having, is actionable, 64. GOOD BEHAVIOUR, binding to, 508. GOOD CHARACTER, plaintiff may not as a rule give evidence of his, 310, 569. defendant may in a criminal case, 603. GOODS, slander of title to, 79, 147. libel on, 30—32, 147—150. GOVERNMENT, libels against, 481—485. patronage, may be criticised, 43. GOVERNOR, official communication to, privileged, 565. (072) GENEBAL INDEX. 60] (The paging refers to the [*] pages .) GRAND JURY, defamatory presentment by, privileged, 190. [*757] GUARDIANS OF THE POOR, words concerning, 26. report of proceedings of Board, not privileged, 40, 176, 267, 379. GUNSMITH, libel on, 31. H. HABEAS CORPUS, Speaker's warrant an answer to, 489. HANDBILL of tradesman, may be criticised, 32, 50, 51. HANDWRITING, proof of, 559, 560, 599, 661. comparison of, 560. HEADING of paragraph may be libellous, 28, 98, 173. must be justified, 170. " HEALER OF FELONS," 113. HEARSAY, sufficient ground for bond fide belief, 205, 216, 282. HEIR, slander of title of, 140, 141. HERALD, words concerning, 71. HERESY, 446—450. distinct from blasphemy, 446, 692, 693. no crime at common law, 447, 701. statutory provisions as to, 447, 448. jurisdiction of ecclesiastical courts, 447 — 450. nonconformity, 448. Unitarianism, 460 — 462. " HERMAPHRODITE," 69. HIEROGLYPHICS may be a libel, 6. HISTORY, matters of, may be discussed, 486, 691, 692. need not be strictly proved, 575. "HOCUSSED," 101. HOMffiOPATHIST. charge of meetiag, in consultation, 27. HONORARY OFFICE, words of one in, 66. HOSPITALITY, loss of, 298, 300, 301, 355. (673) C02 GENERAL INDEX. (The paging refers to the [*] pages.) [*758] HOUSE OF COMMONS, member of privileged, 185. may be committed for contempt of court, 512. words defamatory of, 488. contempt of, 488—490. breach of privilege, 488. Speaker's warrant, an answer to habeas corpus, 489. committee of, evidence given before, privileged, 186. petition to, privileged, 186. HOUSE OF LORDS, contempts of, 488, 489. HUSBAND AND WIFE, 394—405, costs, 372, 398. proceedings by wife against husband, 397, 398. liability of husband, 400—404. special damage, 300, 335. one in law, 153. claim by husband for words defamatory of wife, 335, 395, 631. married woman defendant, 400 — 404. plea that plaintiffs are not, 541. repetition by wife to husband of charge affecting herself, 326, 329, by husband to wife of a charge affecting others, 153, 289, 334. communication to wife of charge against husband, 153. " HYPOCRITE," 20. I. IGNORANCE, words imputing, 25, 26, 70, 71. ILLEGAL TRADE, ■ action for slander in respect of, not maintainable, 83. must be speedily pleaded, 536. ILLNESS, as special damage arising from slander, 298, 301, 302, 326. IMMORAL WORK, no copyright in, 8- publication of, is a misdemeanour, 471. magistrates may order destruction of, 472, 473. may be seized in the post, 474. IMMORALITY, charge of, if written, is actionable, 19. not if spoken, 85 — 89. in a physician, 27, 77, 78. in a clergyman, f>7, 68, 73 — 75, 625. in a woman, 86—89, 399, 631. " IMPOSTOR," libellous, 27. not actionable, if spoken, 84. IMPRIMATUR no longer necessary, 10, 11. , [* 759] IMPUTATION of crime must be specific, 120 — 127. "IN CONFIDENCE," publication of defamatory matter. 153, 211 . (674) GENERAL INDEX. 0U3 (The piigiiig refers to the [*] pages.) INCOMPETENCY in office, charge of, 25, <>5, 71. INCONTINENCE, words imputing, to unmarried women, 86 — 89. to married women, 399, 631. to clergymen, 07, 08, 73—75, 625. INDECENT ASSAULT, charge of, 74, 259. INDECENT PUBLICATIONS may be stopped in the post, 474. magistrates may order destruction of, 472, 473. INDEMNITY, contract of, against publication of libel, 8. INDICTABLE OFFENCE, imputation of, in slander, 53—61, 120—127. INDICTMENT for libel, 9, 593. words must be set out verbatim, 593. pleading to the, 596, 684. removal of, by certiorari, 597. averments, 593. joining several counts, 595. quashing, 595, 599. amending, 595. costs of trial of, 609. fiat of public prosecutor, when requisite, 9, 383, 589.' PRECEDENTS OF, 678 — 683. INDORSEMENT ON WRIT, 523. is privileged, 191. INFAMOUS CRIME. charge of, with intent to extort money, 427. INFANCY. no defence, 405. INFANTS, 405, 406. INFECTIOUS DISEASE, imputations of having, 19, 64, 65, 625. INFERIOR COURTS, defined, 511. jurisdiction of, 518, 588. contempts of, 504 — 511. costs in, 368, 588. reports of proceedings in, 249 — 252. "INFERNAL VILLAIN," 20. [* 760] INFORMATION, when privileged, though volunteered, 208—221. INFORMATION, CRIMINAL, for libel, 427—431. practice on, 610 — 614. • civil remedy barred by, when, 9, 10, 523. precedents of, 673 — 678. (675) 004 GENERAL INDEX. (The paging refers to the [*] pages.) INFRINGEMENT OF PATENT, restraining the issue of circular denouncing, 146, 147, 348 — 351. INGRATITUDE, charge of, libellous, 22. INITIALS OF NAME, libel expressed by, 131. INJUNCTIONS, 337—364. - granted in actions of defamation are of three kinds, 337. I. Injunctions to restrain contempt of Court, 337. application must be made promptly, 338. forbidding report of proceedings in Court, 338. II. Injunctions granted after verdict or at the final hearing, 340, 622, 627. Ill Injunctions granted on interlocutory application before or without verdict, 342. words injuring the plaintiff's business, 146, 147, 343 — 347, 627. publication of private letters, 347, 348. rival patentees, 348 — 351. present law as to injunctions considered, 351 — 364. precedents of claim for, 532, 623, 627. INNKEEPER, libel on, 32. slander of, 79,81. INNOCENT PUBLICATION, 4-6, 155, 433, 574, 638, 639. INNUENDO, office of, 99—116. when necessary, 109, 112. when not necessary, 104, 106. plaintiff bound by, 101. can not make person certain who was uncertain before, 118, 127. drafting the, 530. evidence as to the, 565, 601. INQUIRY, communications in answer to, privileged, 204 — 208. writ of, to assess damages, 368, 526. INSANITY, charge of, is libellous, 21, 84, 210. of the king, 480. no defence, 406, 639. INSINUATION, libel by, 97. [*761] INSOLVENCY, words imputing, 20, 29, 80, 419, 628, 629. acts imputing, 13. INSTRUCTIONS TO COUNSEL are privileged, 191. for defence, 532. INSULTING LADIES, charge of, libellous, 20. INTEGRITY, words imputing want of, 68. (676) GENERAL INDEX. '> ,,: ' (The paging refers to the [*] pages.) INTENTION without overt act, do crime, 57, 125. of defendant, immaterial in civil cases, 3—6, 269. unless occasion privileged, 270. of defendant, in criminal eases, immaterial, 136. except ill case of libel on dead &c, 423, 578, 594, 601. to produce natural and necessary consequence qf act, presumed, ;!, 456 averment of intention divisible, 601. in cases of blasphemy, 441, 694. INTERCOURSE of friends, loss of, words tending to cause, 19, 300, 335. INTEREST, as ground of privilege, '238 — 247. in actions for slander of title, 140. public, matters of, may be criticised, 32—52. what are, is a question for the judge, 42. where large body of persons interested, 243. persons present who have no corresponding interest, 245. statement to protect defendant's own, 229. INTERLOCUTORY APPLICATION, injunction granted on, 342 — 364. INTERROGATORIES, 545—553. leave to administer, necessary, 545. must be relevant, 54(5. tending to criminate, 549. as to opponent's case, 548. as to matters stated in notice under Order XXXVI. r. 37.. 548. setting aside, 549. answer to, 550. what defendant may refuse to answer, 550. in County Court, 586. precedents of, and answers, 059 — 661, 665. INTOLERANCE, religious, charge of, libellous, 21. IRELAND, ■fiat of Attorney-General, when requisite in, 383. Ecclesiastical Courts abolished, 724. Newspaper Libel and Registration Act, 1881. provisions relating to, 72>, 726, 728. T* 7621 IRONICAL PRAISE may be a libel, 6, 21, 116, 567. IRONICAL WORDS may be actionable, 6, 21, 116, 567. must be alleged to have been so spoken, 116, 567. ISSUES, SEVERAL, apportionment of costs of, 369. it ch, . . charge of having, actionable, if written, 20. not, if merely spoken, 64. "JACOBITE," 72, 121. (677) GOO " GENERAL INDEX. (The paging refers to the [*] pages.) JEST, publication in, no defence, 5, 108. unless so understood by all, 106, 108, 574, 639. JOINDER of causes of action, 523. of parlies. 419, 420. in demurrer, 684, 687. JOINING A DEFENDANT, 516. JOINT plaintiffs, 419 defendants, 420. JOINT PUBLICATION of written language, 157, 158, 432, 522. JOINT STOCK COMPANY, actions by and against, 415 — 417. costs of directors of, 373, 609. JOKE, words intended as a, 5, 106, 108, 574, 639. JOURNALIST, privileges of, 32-53, 384—387. defamation of, 28, 29, 642. JUDAISM, gifts to promote, 463. JUDGE of Superior Court, words concerning, 492 — 502. of Inferior Court, words concerning, 504 — 511. at Chambers, 503. must decide whether matter is of public interest, 45. remarks by, absolutely privileged, 187. private letter to, not privileged, 181. duty of, on question of Libel or No Libel, 94, 571. on uncoutroverted facts to decide if publication privileged, 183, 572. when to nonsuit, 571. summing-up, 258, 578. charge of corruption against, 126. [*763] JUDGES' CHAMBERS, reports of proceedings in, privileged, 250. committal for contempt at, 503. JUDGMENT, 579. by default, 526. proceedings after, 5S0. arrest of, 95, 118, 399, 580, 605. may lie reported separately, 258, 651. against husband and wife, 403. previous, against same defendant, a bar, 521, 510, 653. against others, no bar, 158, 316, 547, 577. unless publication joint, 421, 547, 653. JUDICIAL NOTICE of meanings of words, &c, 106, 114, 116, 566. JUDICIAL PROCEEDINGS, statements made in, absolutely privileged, 187. bond fide comments on, protected, 44. (678) GENERAL INDEX. G07 (The paging refers to the [*] pages.) JUDICIAL PROCEEDINGS.— Continued, private letter to judge is not privileged, 191, 242, 495. attorney's bill of costs is not, 194. voluntary affldavil is not, 194. courts martial, 189, L94. privilege of counsel. 189. solicitor acting as advocate, 190. jury, 190. Witnesses, 190. atli(la\ its, &c, 191. reports of, privileged, 164, 248. coram nonjudice, 249. ex partr proceedings, 248. must be fair and acurate, 255, 263. when not privileged, 253, 263. no comments should be interpolated, 259. by party or solicitor, 261, 497. prohibited reports,- 253, 339. JURISDICTION, 518. depends on place of publication, 408, 518. of County Court, 584. of Salford Hundred Court, 588. ' of Ecclesiastical Courts in defamation, abolished, 17, 61, 88, 722, of Liverpool Court of Passage, 588. service out of, 408, 409. 518, 519. to restrain by injunction the publication of a libel, 337—364. of quarter sessions, 426, 471. removal of indictment by certiorari, 597. summary, of justices as to libels, 386, 592. JUROR, privilege of, 190. • withdrawing a, 578, [*764] JURY, to determine whether a publication be a libel or not, 94, 95, 362, 469, 578, 582. to decide on the sufficiency of an apology, 582, 657. to construe the libel, 25, 94, 579. to determine the meaning of words, 94 — 116, 571. to read whole of libel, 25, 98, 263, 579, 604. to determine facts on which plea of privilege is based, 183, 216. to find malice, 263, 273, 277. amount, of damages is question for, 293, 296, 579, 583. perverse finding by, 296, 582. defendant's right to, 362, 557. function of, in prosecutions for libel, 604. special, costs of, 579. to determine truth of the facts charged: 171. must assess damages once for all, 265, 579. should not consider the question of costs, 296, 579. JUSTICE OF THE PEACE, jurisdiction in libel, 589, 592. words by, when privileged, 188, 189. words concerning, 66, 72, 73- administration of the law by, is matter of public interest, 45- reports of proceedings before, 248. cannot commit for contempt, 508- may require sureties for good behaviour, 508. (679) 60S GENERAL INDEX. [The paging refers to the [*] pages.) JUSTIFICATION, 170— ISO. onus of proviDg words true is on the defendant, 170. the whole libel must beproved true, 170, 174. so must all reported speeches of repetitions of slander, 174. must justify the precise charge, 170, 539, 575 heading must be justified, 98, 170. of innuendo, 177. must be proved in every material part. 171 — 174,575. slight immaterial inaccuracy, 171. of part only, in mitigation, 176, 539, 641. plea of, when evidence of malice, 178, 311, 538. must be specially pleaded, 177, 538—540. danger of pleading, 311, 538, 575. how proved, 575. rebutting proof of, 570. Roman law as to, 180. precedents, pleas of, in civil cases, 641, 643. in a criminal case, 437, 596. not permitted at common law, 437. under Lord Campbell's Act, 437, 596, 602. not allowed in prosecutions for blasphemous, obscene, or seditious libels, 438, 597, 602. precedent op plea of, in criminal cases, 674, 684. K. KEEPING A BAWDY-HOUSE, charge of, actionable, 56. [*765] KILLING, charge of, actionable, 121. KING, libels against the, 469. petition to, privileged, 227. words cannot amount to treason, 477. denying his title to the crown, 480. disparaging his ministers, 481 — 485. KNOWLEDGE, of defendant that his words were false, proof positive of malice, 271, 287. in criminal cases, 426, 432, 433, 602. " LAME-DUCK," 110. LANDLORD , and tenant, communications between, privileged, 217, 247. LANGUAGE, construction of, 93 — 117, • certainty of , 117—133. ambiguous, 106 — 116. actionable -per se, 19 — 83. actionable only by reason of special damage, 83 — 92. jury to determine meaning of, 25, 94, 95, 97, 571. in excess of the occasion, 284, LARCENY, what will amount to a charge of, 62, 122. charge of, actionable, 55. (680) GENERAL INDEX. 609 (The paging refers to the [*] pages.) LAW, ecclesiastical, 447 — 150. objection in point of, 536, 634. LAW LIST is evidence, 558. LAWYER, slander of, 70, 75-77, 206, 622, 627, 637. libel on, 27, 28, 98, 105, 116, 228, 621, 649. LECTURES, lAa Jrr ano contract for hire of rooms for delivery of blasphemous, 8, 443, 455, 698. LEGISLATIVE ASSEMBLIES. libels on, 488—491. petition to, is privileged, 186. LEPROSY, charge of having, 64. LETTER, private, publication of, restrained, 347, 348. of explanation, 378, 383, 652. not privileged from inspection. 554. before action, 517. part only of, may be privileged, 283. post-marks on, 559, 600. [*766] libels by, in what county published, 518, 600. marked " confidential," 211. threatening, indictment for, 427. to judge pendente lit< , is a contempt, 191. LETTERS PATENT, slander of title to, 145—147, 348—351. "LIAR," 84. LIBEL, defined, 1—10, 19—21, 468. malice not essential to, 4: — 6, 93. distinguished from slander, 1, 3. action for, maintainable without proof of special damage, 2 — 4. is criminal. 6, 422, 551. in foreign language, 109, 435. 529. 565, 619. remedies for. civil and criminal, i>. 422. how construed, 93 — 133. or no libel, pre-eminently a question for the jury, 25, 94, 98, 362, 469, 582. wbole to be looked at, 25. its, 263, 57& 604. bona fide comment, 32 — 52, 635, 636. criminal proceedings for, 422 — 439, 589 — 614. on the dead, 422—424, 682. proof of the, 562-564, 600. contract for printing, cannot be enforced, 7, 8. blasphemous, 440 — 470. obscene, 471 — 175. seditious, 476 — 512. publication of, 151—169, 432 — 436. charge of publishing a, actionable, 28, 56. in jest, 5, 106, 108, 639. 39 lib. & slan. (681) (310 GENERAL INDEX. (The paging refers to the [*] pages.) LIBEL— Continued. lunatic may be sued for, 5, 269, 406. on things, 14. 15, 30, 138—150, County Court jurisdiction in, 5S4. innocent dissemination of, 162, 432, 433, 433, 638. corporation may sue and be sued for, 5, 30, 416. injunctions to restrain, 337 — 364, 627. proving truth of, 170, 437. precedents of pleadinos in actions for, 618 — 673. in criminal proceedings for, 673 — 687. LIBEL ACT, 32 Geo. III. c. 60 (Mr. Fox's), 13. 62, 94, 604, 710. 6 & 7 Vict. c. 96 (Lord Campbell's) 716—719. s. 1. .322. 542, 658, 717. s. 2. . 322, 541, 544, 577, 658, 717. s. 3. .426, 717. s. 4. .426. 591, 601, 683, 717, s. 5. .385, 420, 43s. 683, 718. s. 6. . 437, 596, 608, 718. s. 7- . 414, 433—436, 602, 718. s. 8. • 609, 614, 718. Newspaper Libel and Registration Act, 1881. . 9, 265, 374—393, 725. [*767] "LIBELLER." charge of being, 56. "LIBELLOUS JOURNALIST," 28, 127. LIBELLOUS WORKS, no copyright in, 8. printer cannot recover for printing, 7. no action lies for price of, 7. LIBERTY of the press, V\ 248, 263, 265, 484, 487. history of growth of, 10 — 13. LICENSED VICTUALLER, libel on, 30, 101. words concerning, 81. LIFE, information volunteered with view of saving, privileged, 215. LIMITATIONS, Statute of, 161, 520, 521, 540, 653. defence under, must be pleaded, 540, 653. LIVERY STABLE KEEPER, words concerning, 69. LIVING PERSON, obituary notice of, may be a libel, 21. LOCAL COURTS, cost in, 368, 588. LOCAL INTEREST, matters of, may be criticised, 40, 41, 46, 47. LORD CHAMBERLAIN, control over plays, 11, 12. 1 682' GENERAL INDEX. Gil (The pa^in^ refers to tlie [*] pages.) LOSS OF EMPLOYMENT is special damage, 299. LUNATIC, 406. liability of, 5, 269, 406, 639. charge of being, 21, 84, 210. M. MADNESS, plea of, 639. no defence, 406. charge of, 31, 84, 210. MAGAZINE, joint liability of editor and printer for libel in, 158, 413. [*768] MAGISTRATES, language concerning, 46, 71, 505. report of proceedings before, privileged, 248 — 252. cannot commit for contempt, 508. proceedings before, 589. obscene works, power of, to search for, 472. summary jurisdiction of, in cases of libel, 384, 592. "MAINSWORN," 111. MAINTENANCE, loss of, by wife, as special damage, 335. MALICE, means in this book "actual " or "express" malice, ix, 4, 270, 271. not essential to the action, 4, 269. unless occasion privileged, 4, 270, 568. onus of proving, lies on the plaintiff, 271, 56*. proof of actual, 275-290, 568. I. Extrinsic evidence of, 275. former publications by defendant of plaintiff, 276, 569. former quarrels, 275, 569. acts of defendant subsequent to publication, 276. that the words are false is alone no evidence of, 278, 569. that defendant knew the words were false, is evidence of 271 278, 569. plea of justification, 178, 278, 538, 569. II. Evidence of, derived from the mode and extent of publication, the terms employed, &c, 281. (i.) Where the expressions employed are exaggerated and unwarrantable, 283. (ii.) Where the mode and extent of publication is excessive 159, 161, 286, 309. absence of, tends to mitigate damages, 317. in actions of slander of title, 142 — 147. or no malice, is for the jury. 263, 273, 277. mere mistake cannot be evidence of. 273. destroys privilege of report under Newspaper Libel Act, 377, 378, 381. whether corporation can be guilty of, 5, 417. MALICIOUS PROSECUTION, 14. "MAN FRIDAY," charge of being, not actionable. 23. 114. judicial notice of the meaning of the term, 114. (6*3) 612 (iKNKRAL INDEX. (The paging refers to the [*] pages.) "MAN OF STRAW," libellous, 20. MANSLAUGHTER, charge of, actionable, 55, 325. MANUSCRIPT, parting with possession of, is publication, 154, 155. letters, publication of, when restrained, 347, 348. MARRIAGE, loss of, is special damage. 298, 299, 304. evidence of loss of, 304, 305. communication warning against, when privileged, 219, 240, 274, 645. [*769] MARRIED WOMAN, 394—405. libel on. 22, 394. slander of, 86—89, 399, 631. charge of stealing goods of, 64, 96. trader, 30, 398. as plaintiff, 394—400, 631. as defendant, 400 — 405. rights of husband, 395. liability of husband, 400. criminal liability of, 404. may be ordered to find sureties for good behaviour, 426. imputing immorality to, 86 — -89, 399, 631. communication to. of words defamatory of husband, 153. presence of, on privileged occasion, eil'ect of, 154. costs of, 372, 398, 402.' proceedings by, against her husband, 397, 398. security for costs not required from, 396. MARRIED WOMEN'S PROPERTY ACT, 1882. .395—397, 400^03. MASTER and servant, 409 — 415. his commands no defence for his servant, 410. liable for words of his servant, spoken with his authority, 411. ratification, 412. giving character of servant, 201—204, 274, 643. criminal liability of, 413, 4;!:*.. defence under Lord Campbell's Act, 414, 415, 433, 577. MASTER MARINER. charge of drunkenness against, actionable, 27, 218, 231. MATTERS OF PUBLIC INTEREST, 32—52, 366, 635. what are, 40 — 52. matters of local interest, may be, 41, 46. affairs of state, 42—44. parliamentary proceedings, 42, 43. administration of justice, 44 — 46. public authorities, 46, 47. local institutions, 46, 47. parochial charity, 47. ecclesiastical affairs, 47, 48. unpublished sermons, 48. books, 48, 49. pictures, 48, 49. architecture, 48, 49. theatres and concerts, 49. public balls and entertainments, 49, 50. 1 684 1 GENERAL INDEX. 613 (The paging refers to the [*] pages.) MATTERS OF PUBLIC INTEREST— Continued. flower show, 4!t, 50. appeals to the public, 50 — 52. advertisement of cure, 50, 51. circulars and handbills of tradesmen, 50, 51. controversies in the newspapers! 50 — 52. persons inviting public attention, 50 — 52. PJtECEDENTS OF PLEA OF, 685, 636. [*::o] MAYOR. words concerning, 40, 505, 509. contempt of, 504, 5()8. MEANING of words is a question for the jury, 93 — 117, 571, 579. assigned by innuendo, must be adhered to, 101. defendant may justify the words without the, 177, 641. ME SURE OF DAMAGES, 18, 293, 302, 325. MEDICAL MEN, slanders on, 68, 77, 78, 85, 626. libels on, 27, 32. criticism on the advertisements of, 51, 173. imputation upon, of immorality, 68, 305. proof of qualification of, 558. MEDICAL REGISTER, is evidence, 558. MEETINGS, public, reports of proceedings at, how far privileged, 266 — 268, 377 — 383. what are, 379. MEMBER OF PARLIAMENT, words concerning, 73, 241, 314, 488—490. privilege of speech of, 1*5, 186, 242, 275. may be committed for contempt of court, 512. MEMORIAL to Home Secretary, 226, 228, 563. MENTAL DERANGEMENT, imputations of, 21, 84, 210. defence of, 406, 639. MENTAL DISTRESS is not' special damage, 302. 307. MERCHANT'S CLERK, words concerning, 125, 230. MERCHANTS, words concerning, 80 — 83. imputations on their credit, 29, 80, 125. charge of keeping false account books, 81. imputations on their goods, 30, 81, 147 — 150. MIDWIFE, words concerning, 71, 7S. MILITARY AND NAVAL OFFICERS, reports by, privileged, 194. have a common interest, 238. (685) 614 GENERAL INDEX. (The paging refers to the [*J pages.} MILITARY OFFENCE, words imputing, 57. MIND, charge of being of unsound, 21, 84, 210. unsoundness of , no defence, 209, 400, (539. distress of, not special damage, 302, 307. [*771] MINISTER, dissenting, words concerning, 26, 74, 75, 243. proof of special damage by, 299, 305, 308. MISCARRIAGE, charge of, against servant girl, 79. MISCONDUCT, general, charge of, actionable only if written, 19. in trade, charge of, is actionable always, 29, SI. information as to, to public officer, privileged, 221. MISDEMEANOUR, charges of, 56, 123. libel is a, 422. . challenge to tight a duel is, 425. MISJOINDER of parties, 316, 419, 516. MISTAKE, publication of libel by, 5, 6, 155, 269, 435. cannot be evidence of malice, 273. MIS TRIAL, 607. MITIGATION OF DAMAGES, evidence in, 312—324, 577. (i) evidence falling short of a justification, 176, 312, 641. (ii) previous publication by others, 313, 577. (in) liability of others, 315, 576. (iv) absence of malice, 317. (v) evidence of plaintiff's bad character, 320. (vi) absence of special damages, 322. (vii) apology and amends, 3J2— 324, 524, 542, 582, 657. as to pleading facts in, 542. particulars, when to be given, 577. under Ord. XXXVI. r. 37, 318, 321. form of notice of, 656. MIT10UI 8ENSU, construction in, 95 — 97. MONEY, false pretences, charge of obtaining by, 259. attempt to extort, by threatening letter, 427. unfit to be trusted with, charge of being, actionable, 20. charge of owing, not actionable, 24, 81, 116. MOTHER-IN-LAW. charge of suing in County Court, not libellous, 23. MOTION in arrest of judgment, 95, 118, 580, 599, 605. for a new trial, in a civil case, 580 — 584. ♦ in a criminal case. 606. for a rule for a criminal information, 610. (686) (JKNKR.U. INDEX. 015 (The paging refere to ibe [*] pages.) [*772] MOTIVE, immaterial, unless occasion privileged, 8, 4, 269, 270, 317. in criminal cases, -42:5, 429. wicked, imputation of, libellous, 25. •'MULATTO," PI. MURDER, charge of, actionable, 55, 121, 122. what is a sufficient charge of, 121. what insufficient, 122. charge (if, explained away by context, 107. MUTE OF MALICE, prisoner standing, 596. N. NAME AND ADDRESS, of printer and his employer, 12, 517. NAVAL AND MILITARY OFFICERS, reports by, privileged, 194. « have a common interest, 238. NEGRO, charge of being, not libellous in England, 23 NEWS, false, fabrication of, 134, 425. NEWSPAPER, proprietors, liability of, 5, 6, 29, 158, 265—268, 412—415, 635. criminal liability of, 412, 414, 415, 432. libels on, 28, 29, 31. cannot sue editor for contribution, 158. register of, 12, 13, 388, 727. editor, liability of, 158, 160, 382. libels on, 22, 28, 29. printer of, 12, 158, 432. . publisher of, 432. reporter, duty of, 250, 253, 255, 259. letters written to, may be answered, 50 — 52. how much may be read in evidence, 573, 604. not justified in publishing story told by plaintiff against himself, 5. proof of publication of, 391, 560, 561. latitude allowed to writers in. 35, 36, 38, 39, 45, 481, 484. actionable language concerning, 28, 29, 104. imputation that it lias a small circulation, libellous, 29. advertisement in, when privileged, •2','!), 230. statutory provisions relating to, 12, 376—393, 561, 713, 714, 717. statutory plea of apology for libel in. 322, 541 — 543, 658. extent of circulation of libel in, increases damage, 2!), 158, 159. discovery of proprietors, printers, and publishers of, 547, 551 — 553, 713. copying libellous articles from another, Kin, 313, :>14, 577. reports in, of judicial proceedings, 248 — 263. of parliamentary proceedings, 263 — 265. of public meetings, how far privileged, 265, :177. 652. [*773] comments in, on matters of public interest, 32 — 52, 484, 487. editor not bound to give up name of correspondent, 319, 517. publications reflecting on suitors, witnesses, or prisoners, 44, 253, 493 — 498. " gross negligence" in the conduct of, what is, 323. (687) 616 GENERAL INDEX. (The paging refers to the [*] pages.) NEWSPAPER LIBEL AND REGISTRATION ACT, 1881 . .9, 265, 374— 393, 725—729. definitions, :»76. reports of public meetings privileged, 377 — 383. prosecution of newspapers for libel, 383 — 387. registration of name of proprietor, 387 — 393. certificate made evidence, 390, 553, 561. fees on making return, 391. NEW TRIAL, when granted, 581 — 584. application for, to what Court, 580, 581. »• perverse finding of jury, 582. for excessive damages, 581. for insufficient damages, 581, 583. on the ground of surprise, 581, 584. verdict against weight of evidence, 581, 582. on one of several issues, 581. against one defendant, 582. in County Court, 587. costs of former trial, 584. on indictment for libel, 607. NOLLE PROSEQUI, 605, 614. NOMINAL DAMAGES, 294. NONCONFORMITY, not illegal, 448. NONJOINDER, of parties, 316, 420, 516. NONSUIT, 571. NOT GUILTY, plea of, abolished in civil cases, 534. plea of, on trial of indictment, 596. NOTICE, to auctioneer, libel in, 230. of exclusion from public room, 23. of termination of engagement, no libel, 24, 117. that, defendant will not accept payment in cheques on plaintiff's bank, 24, 115. of action, 518, 631, 723. forms of, in County Court, 671 — 673. of intention to adduce evidence of apology in mitigation, 322, 541, 658. under Ord. XXXVI. r. 37 . .656. to produce, 555, 600. to inspect and admit, 555. of trial, 555. [*774] NOTICE OF TRIAL, 555. NUL TIEL RECORD, 545. O. OBITUARY NOTICE, of living person, may be a libel, 21. OBJECTIONS IN POINT OF LAW, 536, 634. (688} GENERAL IMiK.X. 61.7 [The paging refers to the [*J pages.) OBSCENE PUBLICATIONS, 254, 471—475. lest of obscenity, 471. Quarter Sessions, jurisdiction incase of, 471. summary proceedings under 20 & 21 Vict. c. 83 . . 472. reports of proceedings of Courts of Justice as to, not privileged, 254,474 parties aggrieved may appeal, 473. no copyright in, 8. may be stopped in the post, 474 may be seized by order of magistrates, 473, 722. OCCASION, of publication gives rise to absolute privilege, 180 — 196. qualified privilege, 190 — 268. OCCUPATION of plaintiff, how proved, 558 libels on plaintiff in way of, 25 — 30. words concerning plaintiff in way of, 65—83, 303, 307, 625—628. OFFICE, words concerning plaintiff in his, actionable, whether written, 19, 25, 29. or spoken, 65 — 83. proof of appointment to, 558. action lies whether the office one of profit or not, 66. distinction between imputation of want of ability and imputation of want of integrity, 26, 71. imputing ignorance in, 68, 69, 70, 626. plaintiff must be in the present enjoyment of, in slander, 66, 67. not so in libel, 25, 26. the words 'must affect plaintiff in his office, 65, 66, 568. imputing corruption to officer of Court, 28, 71, 72. Judges of Superior Court, 67. 492. Judges of Inferior Court, 28, 40, 504—511. justices of the peace. 72, 73, 505, 5 9. clergymen and ministers, 73 — 75. barristers-at law, 27, 75. solicitors and attorneys, 76. 627. physicians and surgeons, 27, 77, 626. parish officers, 27. # traders, 79—83. 568- OFFICERS, naval and military, reports of, privileged, 194 — 196. have a common interest, 238. public, charge against, privileged, 225 — 229. information given to, privileged, 221 — 225. [*775] OMNIA PRESUMUNTUR RITE ESSE ACTA, 66, 588. ON BIT, may be a libel, 97. OPINION, words lowering plaintiff in people's, 19. of expert witnesses, when receivable, 560. " OPPRESSIVE CONDUCT," charge of, libellous, 27. OPTICIAN, libel on, 29. ORDER NISI, motion for, 610. (689) gig GENERAL [NDEX. (The paging refers to the [*] pages.) ORDER XXX VI. r. 37, effect of, 318, 574, 577. . iu ao way restricts cross-examination, 6Z\, 574. form of notice under, 656. _ interrogating as to matters stated in notice, 548. ORIGINATOR OF RUMOUR may escape punishment, 167, 331. OTHER ACTIONS, not to be considered, 158, 316, 547, 577. between same parties, 521, 540, 653. OTHER LIBELS, &c., evidence of, when admitted, 277. to explain ambiguity in the words, 98. as evidence of malice, 276, 277. not to mitigate damages, 313, 315. to aggravate damages, 310. OTHERS LIABLE, no defence, 157, 313, 420, 576. no mitigation, 315, 577. OUTLAW, action by, 525. civil proceedings in outlawry, now abolished, 525. OVERSEER, words concerning, 27, 234. evidence as to appointment of, 558. OWING MONEY, charge of, 24, 81, 116. OXFORD, , , Kan resident undergraduate of, where to be sued, 5,i0. PAINTINGS, libels bv, 6, 20, 22. public exhibition of, may be criticised, 48, 49. [* 776] PAMPHLET, publication of report of trial in, 254, 497, 651. PAPERS, parliamentary, liability for publication of, 185. state, production of, 563. authorized publication of, protected, 185, 715, 716. PARDON, crime imputed after grant of, 59. plea of, 545, 596. PARENT, not liable for acts of children, 413. publication to, of complaint of child's misconduct, 212, 217. PARISH MEETINGS. proceedings at, privileged, 241. re] orts in newspapers of proceedings at, 267. (690) GENERAL INDEX. 010 (The pi giiig refers to the [*] pages.) PARISH OFFICERS, words affecting, 27. 46, 71, 241. constable, 72, 241. overseer, 27. churchwarden, 63, 72. waywarden of a district, 47. PARLIAMENT, speeches in, absolutely privileged, 185. petition to, 43, 1*6, 290. contempts of cither House, 488 — 490. resolutions of House of Commons, 489. power of commitment, 489. Speaker's warrant not to be too closely scrutinized, 490. PARLIAMENTARY DEBATES AND PROCEEDINGS, reports of, in newspaper, privileged, 264, 265. may be freely commented on by every one, 32, 42 — 44. PARLIAMENTARY PAPERS, liability for publication of, 185. statute protecting authorized publication of, 185, 715, 716. PAROCHIAL affairs may be matter of public comment, 41, 46, 241. charity, privately organized, may not, 47. PARTIALITY, charging a judge with, 26, 493. PARTICULARS, of statement of claim, 533, 633. of plea of justification, 538, 576, 641. under Ord. XXXVI. r. 37, 577, 656. summons for, 632. PARTIES to action, 394—421, 515—517. misjoinder of, 316, 515. [*777] non-joinder of, 316, 420, 516. 1. Husband and wife, 394 claim by husband for words defamatory of wife, 394, 395. married woman plaintiff, 395. liability of husband for wife's words, 400. married woman defendant, 401. 402. criminal liability of a married woman, 404. 2. Infants, 405. 3. Lunatics, 406. 4. Bankrupts, 406. 5. Receivers, 407. 6. Executors and administrators, 407. 7. Aliens, 408. 8. Master and servant — principal and agent, 409. master's commands no defence, 410. principal liable for words spoken by his authority, 411. ratification, 412. criminal liability of master or principal, 413. 9. Corporations and companies, 415. 10. Partners, 417. 11. Other joint plaintiffs, 419. 12. Joint defendants, 420. (691) 620 GENERAL [NDEX. (The paging refers to the [*] pages.) PARTNERS, . . , f QQ >iiq in trade, words imputing insolvency to one ot, 83, 4iy. libels on, 30, 336, 417. may join in the action, 417. previous recovery against one partner, 522. PASSAGE. COURT OF, jurisdiction in libel and slander, 588. costs in, 368, 588. PATENT, slander of title to, 145—147, 348—351. PATRONAGE, Government, may be criticised, 43. PAWNBROKER, words concerning, 111. PAYMENT INTO COURT, must accompany plea under Lord Campbell s Act, 323, 542. no plea denying liability can be pleaded at same time, 324, 541. form of plea, 655, 656, 659. costs after, 370. PECUNIARY LOSS, is special damage, 302. when essential to action, 18. general damages not confined to actual, 579. PEERS and great officers of the realm, slander of, 134—137. PENCIL MARK may be a libel, 6. [*778] PERJURY, what amounts to a charge of, 123, 261. charge of committing, actionable, 22, 56, 280. charge of procuring one to commit, 56, 131. PERMANENT MARK OR SIGN, if scandalous, a libel, 6, 19. PERSONS, special disabilities and relations, 394 — 421. 1. Husband and wife, 394. 2. Infants, 405. 3. Lunatics, 406. 4. Bankrupts, 406. 5. Receivers, 407. 6. Executors and administrators, 407. 7. Aliens, 4i 8. 8. Master and servant — principal and agent, 409. 9. Corporations and companies, 415. 10. Partners, 417. 11. Other joint plaintiffs, 419. 12. Joint defendants, 420. PETITIONS for redress of injuries, privileged, 225—229. to Parliament, are privileged, 180, 290- are matters of public interest, 43, 290. to the Sovereign, 227. (692) GENERAL INDEX. 621 (The paging refers 10 die [*] pages.) "PETTIFOGGING SHYSTER," 105. PHOTOGRAPHIC COPY OF LIBEL, costs of, 579. PHYSICIAN, words concerning, 68, 77, 305, 626. libel on, 27, 32. imputation of adultery to, 68, 85. proof of qualification of, 558. "PICKPOCKET," 123. PICTURES, libels by, 6, 20, 22. libellous, public exhibition of, 422. publicly exhibited, may be criticised, 48, 49. "PIGEONING," charge of, 75. PILLORY, punishment of, in former times, 440, 479. PIRACY, of libellous work, no action for, 8. PLACARD, on wall, proof of, 564. publication by, 155, 287, 619. [* 779] PLACE of trial, selection of, 532. change of. 557, of publication, how far material, 109, 408, 518, 600. PLAGUE, charge of having the, 64. PLAINTIFF, cannot sue for injury to reputation of another, 15. who may be, 394—420. damage must have accrued to, 335. death of, 403. must be sufficiently pointed at and identified, 127, 567, 568. general reputation of, 310, 320. conduct of, in provoking libel, &c, 232, 318. right to begin, 557. evidence for, 558 — 570- matters to be considered, by, 513. proof that the words refer to, 127, 567. special character, proof of, 558. difficulty as to right, 419, 515. joint plaintiffs, 419, 631. infant, 405. married woman, 394, 631. "PLANT," 111, 112. PLAYS, control of* Lord Chamberlain over, 11, 12. i 693 1 022 GENERAL INDEX. (The pugiiii? refers to the [*] pafjes.) PLEADINGS, statements in, are privileged, 191. lu Oivil ( w.sv.v. statemenl of claim, 528— 532, CIS— 631 joinder of cause-; of action, 523. averments, what necessary, 118, -5--11. innuendo, 100—117, 530. colloquium, 118—120, 128, 531. special damage, 139, 291, 297—336, 532, 570. amendment of, 533, 544. particulars, 533, 629, 633. defence, 5;}4 — 543. traverses, 535. objections on points of law, 536. special grounds of defence, 540. counterclaim, 543 reply, 543, 637, 638. variance, 564, 600. County Court, 584—588. Precedents of, in actions for libel and slander, statements of claim, 618—633. defences and replies, 633—659. interrogatories, jfcc, 659 — 661. of slander of title. 662—669. in County Court, 670 — 673. *780] In Criminal Cases, indictment, 593. amendment of, 595. demurrer to, 596. Precedents of, informations, 673 — 678. indictments, 678 — 687. pleas, 596, 684. replication to pleas, 597, 686. demurrer to plea, 597, 686. justification under Lord Campbell's Act, 596. information, 610. POISONING, foxes, charge of, 23. POLICEMAN, slander of, 189, 241, 334 words published to, 221—225. POLITICAL AUTHORS. privilege as to writings of, 38, 39, 484, 487. POST-CARD. publication of libel by, avoids privilege, 152, 286. POST-MARK, as evidence of place of publication, 559, 600. POST-MASTER, complaint as to, 218, 226. POX, charge of having, 64 (694) GENERAL INDEX. 623 (The paging refers to the [*] pages.) PRACTICE IN CIVIL CASES, 513—588. considerations before writ, 513. parties, 515. letter before action, 517. notice of action, 518. jurisdiction, 518. choice of Court, 519. Statute of I. imitations, 520, 540. former proceedings, 521. joinder of causes of action, 523. endorsement of writ, 523. mailers to be considered by the defendant, 524. remitting|the action to County Court, 526. subsequent proceedings in County Court, 584. pleadings (see Pleadings), 5.8—544, 615—689. i n t "r rogatories , 545 — 553 . discovery of documents, 553. advice on evidence, 555. change of venue, 557. trial and evidence, 557 — 578. compromise, 578. [*781] costs, 579. proceedings after judgment, 580. new trial, 581 . County Court proceedings, 584. other inferior Courts, 588. PRACTICE IN CRIMINAL PROCEEDINGS BY WAY OF INDICT- MENT, 589—610. proceedings before magistrates, 589. indictment, 593. pleading to the indictment, 596. certiorari, 597. evidence for the prosecution, 599. evidence for the defence, 601. summing-up and verdict, 604. proceedings after verdict, 605. sentence, 607. costs, 609. PRACTICE IN PROCEEDINGS BY WAY OF CRIMINAL INFORMA- TION, 6' 0—614. motion for the order nisi, 610. argument, 612. compromise, 613. trial and costs, 613. PRAISE, ironical, may be a libel, 6, 21, 116. PRAYER-BOOK, words in derogation of, 465. PRECEDENTS of pleadings in actions for libel and slander, statements of claims, 618 — 633. defences, 6, 3—659. interrogatories, &c, 659 — 661. in actions of slander of title, 662 — 669. in County Court, 670—673. of criminal pleadings, informations, 673 — 678. indictments, 678—687. (695: 624 GENERAL INDEX. (The paging refers to the [*] pages.) PREFATORY AVERMENTS, as to traverse and denial of, 535. evidence as to, 558, 568, 001. not necessary to support innuendo, 100, 118, 530. PRESS. liberty of, defined, 10. history of growth of, 10 — 13. abuse of liberty of, 10. censorship of, 11, 12. PREVIOUS ACTIONS, 295, 300, 521, 540, 653. [*782] PREVIOUS PUBLICATIONS of same libel by others, no defence, 157, 313, 315, 420, 576. no evidence of its truth, 174, 577. how far mitigation of damages, 313, 327. by the defendant, 277, 310. PREVIOUS REPORTS OR RUMOURS, 102-166, 312, 577. if bund fide repeated to person calumniated, 107, 235. PRIEST, words spoken by, 242. of, 26, 128. PRINCIPAL and agent, 409 — 415- liable for words spoken by his authority, 411. criminal liability of, 413, 433. defence under Lord Campbell's Act, 4'.4, 415, 433. ratification, 412. not liable for malice of agent, 311. PRINTER, liability of, 157, 412, 413, 432. must print his name and address on every publication, 12, 714. must preserve name of his employer, 12, 517. must make a return under the Newspaper Libel and Resist ration Act, 1881. .388, 560. cannot recover wages for printing libellous matter, 7. publication to, 152, 153, 559. PRINTING, libels by, 6, 157—159. prima facie evidence of publishing, 157, 550. a libel without publication, 152, 153, 559. libellous matter, cost of, cannot be recovered, 7. PRISONER may be fined for contempt of court. 494. must be present on motion for new trial, 607. "PRIVATE AND CONFIDENTIAL," marking communication, effect of, 211. PRIVATE CIRCULATION, book printed for, criticism of, 49. PRIVATE INTERESTS, statements in defence of, privileged, 229. PRIVATE LETTERS, publication of, restrained, 347, 348. (0«G) GENERAL INDEX. G25 [The pajjiDg refers to the [*] pages.) PRIVATE LIFE of candidate, when open to discussion, 43, 233. • PRIVILEGED OCCASIONS, 33, 181—268. defence that words were spoken on a privileged occasion, 181, 643 — 65l- the judge to deeide whether occasion is privileged or not, 183, 216, 57^- presumption of privilege rebutted by evidence of malice, 263, 273, 277. [*783] Occasions absolutely Privileged, 184—196. (i) Parliamentary proceedings, 185. (ii) Judicial proceedings, 187. words spoken by a judge, 187. words spoken by counsel, 189. words spoken by witness, 190, 644. words in affidavits, &c, 191. (iii) Naval and military affairs, 194, 644. Qualified Privilege, 197—268, 644. cases of qualified privilege classified, 197. I. Where circumstances cast upon the dependant the duty OP making a communication. (A) Communications made in pursuit of a Duty owed to Society, 201. duty may be moral or social, 199. (i) Characters of servants, 201, 645. (ii) Other confidential communications of a private nature : (a) Answers to confidential inqui ies, 204, 644, 645. (b) Confidential communications not in answer to a previous inquiry, 208. (c) Communications made in discharge of a duty arising from a confidential relationship, 210. {d) Information volunteered when there is no confidential re- lationship existing, 213, 645. difficulty of the question, 214. judge r. jury, 216. (iii) Information as to crime or misconduct of others, 221. charges against public officials, 225. person applied to must have some jurisdiction, 227. (B) Communications made in Self-defence. (iv) Statements necessary to protect defendant's private interests, 229. (v) Statements provoked by a previous attack by plaintiff on de- fendant, 232, 647. statements invited by the plaintiff, 168, 234. II. Where the defendant and the person to whom the com- munication IS MADE HAVE A COMMON INTEREST IN THE SUBJECT MATTER OF THE COMMUNICATION, 238. where a large body of persons are interested, 243. if strangers present, the privilege will be lost, 245. III. Privileged Reports, 248. (i) Reports of Judicial Proceedings, 248. matters coram nonjudic,, 249. reports not privileged, 253. reports must be accurate, 255. reporting part only of a trial, 258. no comments should be interpolated, 259. an accurate report may still be malicious, 261. (ii) Reports of Parliamentary Proceedings, 264. 40 LIB. k slan. (697) J-2V> GENERAL, INDEX. (The paging refers to the [*] pages.) PRIVILEGED OCCASIONS— Continued. (iii) other Reports, 266. public meetings, 265, 377—383. in criminal eases, 436. [*784] PRIVILEGE OF WITNESSES, as to self-criminating evidence, (544. as to production of state papers, 563. PRIVY COUNCIL, complaint addressed to, privileged, 227. PRIVY COUNCILLOR, words concerning, 126. PROCEEDINGS, former, 295, 306, 521, 540, 653. after judgment, 580. in the County Court, 584. before magistrates, 589. after verdict, 605. report of, matter of public interest, 44 — 46. privileged, 248—263. PROCTOR, words concerning a, 28, 173. PROFANE LIBELS, 440—470, 688—704. PROFESSION, words injuring the plaintiff in the way of his, 19, 25—29, 65 — 83. 623 — 628. PROFITS, loss of, is special damage, 298, 303, 307. PROMISE, to indemnify against consequences of publishing libel, 8. to abstain from publishing libel. 8. PROOF, of plaintiff's special character, 558. of publication, 559. of the libel, 562. of the speaking of the slander, 564. that the words refer to the plaintiff, 567. that the words were spoken of the plaintiff in the way of his office, pro- fession, or trade, 568. PROPRIETOR of newspaper liable for all libels contained therein, 5, 159, 413. civilly, 5, 6, 29, 158, 265—268, 412—415, 635. criminally, 412, 414, 415, 432. register of, 12, 13, 388—393. "representative," 387. PROSECUTIONS, DIRECTOR OF PUBLIC, fiat of, 9, 383, 384, 589. not necessary for criminal information, 384, 589. PROSPECTIVE DAMAGES, 295. PROSTITUTE, charge of being, not actionable, if spoken, 85, 86. charge of having under protection, libelous, 22. (698) GENERAL INDEX. 627 (The paging refers to ihe [*] pages.) [*785] PROSTITUTION, words imputing, to a single woman, 86 — 89, 333. to a schoolmistress, 85. to the shopwoman of a trader, 85. to a married woman, 86 — 89, 336. PROVOCATION by libel to a breach of the peace, 3, 423. by plaintiff's conduct, 232, 318, 428. by previous libels, when evidence in mitigation, 318. PUBLIC ATTENTION, persons inviting, may be criticized, 50 — 52. PUBLIC BENEFIT, when a defence in criminal proceedings, 437 — 439, 684, 718. PUBLIC INTEREST, MATTERS OF, may be freely commented on, 32 — 52. what are, 40 — 52. is a question for the judge, 42. affairs of State, 42—44. Government patronage, 43. debates and proceedings in Parliament, 42, 43. petitions to Parliament, 43. books and other literary publications, 48, 49. paintings and works of art, 48, 49. architecture, 48, 49. advertisements, playcards, circulars, 50 — 52. the performances at places of public entertainment, 49, 50. the conduct of persons attending a public political meeting, 52. management of public institutions, 46, 47. parochial charity, 47. ecclesiastical affairs, 47, 48. the public conduct of public men, 32, 36, 38, 39, 42. persons inviting public attention, 50 — 52. newspaper controversies, 50—52. PRECEDENT OF PLEAS BONA FIDE COMMENT ON, 635, 636. PUBLIC MEETINGS, reports of proceedings at, how far privileged, 266—268, 377—383, 652. comments on conduct of persons attending, permitting, 52. what are, 379. PUBLIC MEN, who are, 40, 41. their public conduct may be freely discussed, 35, 36, 40 — 44. imputation of corrupt motives to, 36 — 40, 42—44. PUBLIC OFFICER, information given to, privileged, 221 — 225. charges against, privileged, 225 — 229. PUBLIC PERFORMANCES AND ENTERTAINMENTS may be the subject of fair criticism, 49, 50. * [*786] PUBLIC POLICY, ground for refusing to produce a document, 563. PUBLIC PROSECUTOR, fiat of, when requisite, 9, 383, 384, 589. PUBLICAN, defamation of, 30, 81, 101. (699) (J28 GENERAL INDEX. (The paging refers to the [*] pages.) PUBLICATION, 151—169, 432—436. definition of, 151. must be to a third person, 151, 153. plaintiff must prove a publication by the defendant in fact, 154. publication per ctiium, 156, 433, 602. publication in a newspaper, 158, 26 >. to printer, 152, 153. all concerned in, are liable, 157, 158, 432. excessive or repealed, will aggravate damages, 159, 161, 230, 243, 286, 309. in criminal cases, 432 — 436, 602. denial of, 637. unconscious, 160, 433, 602, 638, 639. repetition of a slander, 16.', 166. naming your authority no defence, 163. sometimes a duty to repeat, 167. by sale in a shop, 160, 161. by letter, telegram, or postcard, 152, 286. by placard, 155, 564. by copying from another newspaper, 160, 313, 314. by mistake, 6, 1 55, 574: premature, by newspaper, in anticipation of official report, 268. by contrivance of plaintiff himself, 168, 234. may be restrained by injunction, when, 340 — 364, 627. proof of, 559, 600. proof of, where libel is lost, 563. in a particular county, 600. PUBLISHER, who is liable as, 125—166, 432. PUFFING own goods, no libel, 31, 147, 150. PUNISHMENT at common law, 422, 425. under Lord Campbell's Act, 426. by requiring sureties for good behaviour, 425. for a blasphemous libel, 440. for an obscene libel, 471. for a seditious libel, 479. for contempt of court, 492, 494, 499—502, 506, 508. pillory, 440, 479. what may be shown in mitigation of, 608. [*787] "QUACK," 27, 77. QUALIFIED PRIVILEGE, 197—268. cases of qualified privilege classified, 197. I. Where circumstances cast upon the Defendant the duty of making a Communication. (A.) Communication*, made in pursuance of a Duty owed to Society , 201 . (i.) Characters of servants, 201. (ii.) Other confidential communications of a private nature, 204. , (a) answers to confidential inquiries, 204. (6) confidential communications not in answer to a pre- vious inquiry, 208. (c) communications made in discharge of a duty ari ing from a confidential relationship existing between the parties, 210. (d) information volunteered when there is no confiden- tial relationship existing between the parties, 213. (700) GENERAL INDEX. 629 (The paging refers to the [*] pages.) QUALIFIED PRIVILEGE— Contin ued. (iii.) Information as to crime or misconduct of others, 221. charges against public officials, 225. complaint must be addressed to person having jurisdic- tion, 227. (B.) Communication made in Self-Defence, 229. (iv.) Statements necessary to protect defendant's private interests, 229. (v.) Statements provoked by a previous attack by plaintiff on de- fendant, 232. statements invited by the plaintiff, 234. II. Where the Defendant and tiie Person to whom the Commu- nication IS MADE, HAVE A COMMON INTEREST IN THE SUBJECT- MATTER OP THE COMMUNICATION, 238. where a large body of persons are interested, 243. if strangers present, the privilege will be lost, 245. III. Privileged Reports, 248 — 268. QUARTER SESSIONS, power to punish for contempts, 504 — 511. jurisdiction to try indictments for libel, 426, 471, 473, 593. is an inferior court, 511. QUESTION, libel may be insinuated in a, 126. and answer, libel by, 127, 529. QUI FACIT PER AL1UM FAC1T PER SE, 156. R. RABBITS, charge of destroying, 24, 115. RAILWAY COMPANY, placarding conviction for infringement of bye-laws, 174." may sue and be sued for libel, 415 — 417. charge of breaking bye-law of, 56. "RASCAL," 62. [*788] RATEPAYERS have a common interest, 238. statements by, at parish meeting, 241. RATIFICATION, 412. RE-ASSERTION OF SLANDER in reply to inquirer, 234 — 238. "REBEL, " 121. REBUS may be a libel, 6. REBUTTING JUSTIFICATION, 570. RECEIVERS appointed by the court, 407. RECEIVING STOLEN GOODS, charge of, actionable, 55, 60. what a sufficient charge of, 62, 123. (701) 630 GENEBAL INDEX. (The paging refer* to the [*] pa^eH.I RECOGNISANCES, 426, 508, 592. RECORD, courts of, 492—508.. courts not of, 508—511. REDRESS, bond fide claim for, privileged, 225—229. REGISTER of newspaper proprietors 12, 18, 387 — 393, 727. of "representative proprietors," 387, 72?. none, of newspaper belonging to a company, 393, 728. to be evidence, 391, 728. REGISTRATION AGENT, words concerning, 6G. RELATIONSHIP, confidential, what is, 210. privilege arising from, 210 — 213. RELEASE must be specially pleaded, 540. RELIGION, publications against, 440 — 470. blasphemy, 440, 450. heresy, 447, 450. ecclesiastical courts, jurisdiction of, 447 — 450. statutory provisions, 464 — 467. RELIGIOUS INTOLERANCE, charge of, libellous, 21. RELIGIOUS SECTS AND SOCIETIES, libels upon, 424, 429. expulsion from, 61, 87, 88, 300, 336. members have a common interest, 243. [*789] REMEDIES FOR LIBEL, civil and criminal, 8—10, 423, 437. REMITTING ACTION to the County Court, 372, 526, 585. REMOTENESS OF DAMAGES, 325. damages must be direct result of defendant's own words, 330. damage must have accrued to Hie plaintiff, 335. damage resulting to the husband of the female plaintiff, 326. damage caused by the act of a third party, 328. not essential that such third person should believe the charge, 329. originator of a slander not liable for damage caused by its repetition, 331. exceptions to this rule, 332. REPETITION of slander heard from another, 162—169, 313—315, 330—334. by wife to husband, 153, 329, 334. naming informant now no avail, 163, 166. formerly a defence, 163.. bond fide repetition to person calumniated, 167, 235. libellous articles reproduced from other newspapers, 160, 3x4, 603. of libel, may be evidence of malice, 276, 277. especially if exaggerated, 284. (702) GENERAL INDEX. 631 (The paging refers to the [*] pages.) REPLICATION in criminal cases, 51>7, 675, 686. REPLY as to pleading, 543. of pardon to a plea charging felony, 59, 545. to plea under Lord Campbell's Act, 322, 544. precedents of, 637, 638. REPORTER, duty of, 44, 248, 259. REPORTS dill'er from comments, 35, 259. of imaginary facts, 37. (i) Reports of judicial proceedings, 248, 650, 651. of ex parte proceedings, 248. of a part of the proceedings, 258. of matters coram notijudice, 249. must be accurate, 255. in newspapers, not specially privileged, 256. no comments should be interpolated, 259. when not privileged, 253. an accurate report may still be malicious, 261. whole should be considered, 25, 263. (ii) Reports of Parliamentary proceedings, 264. (iii) Other reports, 266. public meetings, 266, 377—383, 652. " REPRESENTATIVE PROPRIETORS," register of, 387. [*790] REPUTATION defined, 151. is property, 17. injury to, gist of action, 18, 19. of plaintiff in aggravation of damages, 310. in mitigation of damages, 320. of other person than plaintiff, impugning, 15, 335. RETORTS, how far privileged, 232, 318. RETRIBUTORY DAMAGES, 295. RETURN under Newspaper Libel and Registration Act, 1881 , 388 — 391 penalty for omission to make annual, 389. penalty for false, 390. any party may make, 389. registrar to enter, 391. " RETURNED CONVICT," 59. REVIEWS OF BOOKS, PICTURES, &c, how far permitted, 33—38, 48, 49. REVISING BARRISTER, slander of, 66. power of, to remove disorderly person, 510. REWARD offered for detection of crime, 232, 289, 646. (703 1 632 GENERAL INDEX. (The paging refers to the [*J pages.) RIDICULE, words which expose a person to, libellous, 19, 20. as a weapon of criticism, 34, 49. " RIDING SKIMMINGTON," 13. RIGHT OF ACTION not assignable on bankruptcy, 407. ROBBERY, charge of, actionable, 55. "ROGUE," 3, 20, 84, 305. ROMAN CATHOLICS, penal statutes against, 59. libel on monks and uuns, 126, 424. attacks upon, 4, 43, 254, 26 T. ROMAN LAAV as to acts injurious to reputation of others, 14. as to justification, 180. as to malice, 182. "ROUGH MUSIC," 13. ROYAL COMMISSIONER, charge of corruption against, 72. [*791] RUMOUR, existence of, no justification for a repetition of, 166, 235, 237, 313, 577. except bond fide repetition to person calumniated, 167, 235. when evidence in mitigation, 313, 577. false rumours, wilfully circulated, 425. exaggerated version of, 284. " RUNAGATE," 62. SACRAMENT, words despising or contemning, 464, 465. SALFORD HUNDRED COURT, jurisdiction of, in slander and libel, 588. costs in, 368, 588. SATISFACTION, ACCORD AND, 540, 654. SCANDALOUS MATTER in pleadings, affidavits, &c, maybe expunged, 192, 549. meaning of term, 549. SCANDAL UM MA ON A TUM. statutes of. 134—136. who may bring action of, 136. the nature of the words to support the action, 136. venue in actions for, 136. SCHOOLMASTER, words concerning, 68, 228. SCHOOLMISTRESS, 21, 61. imputing prostitution to, 85. (704) GENERAL INDEX. 633 (The paging refers to the [*] pages.) "SCOUNDREL," 21, 61. SECONDARY EVIDENCE, when libel lost or destroyed, 563. SECRETARY OF STATE, letters to, privileged, 196, 212, 226, 563. orders issued by, absolutely privileged, 196. SECT. libels on, 423, 424, 429. expulsion from, not special famige, 87. SECURITY FOR COSTS, required from alien, 408. 525. from bankrupt plaintiff, 407. not required from married woman, 396. or infant, 405. on removal of indictment by certiorari, 609. SEDITION, charge of, actionable, 121. [*792] SEDITIOUS WORDS, 476—512. defined, 476. I. Treasonable Words, 477. i. Words merely spoken, 477. ii. Words written or printed but not published, 477. iii. Words written or printed and published, 478 compassing the king's death, 478. II. Sedition, 479. i. Words defamatory of the sovereign himself, 479 — 481 . truth no defence, 481. ii. Words defamatory of the king's ministers and government, 481 —485 latitude allowed to political writers, 484, 487. iii. Words defamatory of the constitution, 485—488. iv. Words defamatory of either House of Parliament or of the mem- bers thereof, 488-491. power of House to punish for contempt, 488 — 490. powers of subordinate legislative bodies, 490, 491. v. Words defamatory of Courts of Justice and of individual iuderes, 492-512. (a) Superior Courts, 492—504. words defamatory of, 492. fair criticism of, 492. contempts of, what are, 493—502. committal and attachment by, 499. what are, 502—504. (b) Inferior Courts, 504—512. words defamatory of, 504 — 505. power of, to commit for contempt, 506, 507. to require sureties for good behaviour, 508. statutory provisions, 509, 510. what are, 511. SELF-DEFENCE, language published in, is privileged, 229 — 232, 647. SENS US VERB DRUM EX CAUSA DICENDI ACCIPIENDUS EST, 107. SENTENCE, 607. i 705 i 63 I GENERAL INDEX. (The paging refers to the [*] pages ) SEPARATE ISSUES, costs of, 5569. SERMON, not privileged, 5, 242. delivery of, restrained, 338. unpublished criticisms on, 48. seditious, charge of preaching, 121. SERVANT, words concerning, 79. when liable as publisher, 161, 410. employer, when liable for acts of, 411 — 415, 433, 602. charge against, when privileged, 203, 204, 209, 274. communication to employer concerning, when privileged, 217. giving character to, 201—204, 645. delivery of libel by, not knowing contents, 161, 411, 602. [*793] SERVICE OF THE WRIT out of the jurisdiction, 518, 519. SETTING ASIDE INTERROGATORIES, 549. "SHAMEFUL CONDUCT," charge of, 28, 98. SHAREHOLDERS, proceedings at meeting of, privileged, 240, 244. reports to, privileged, 240, 244, 246. circulars to, privileged, 345. SHIP, libel on, 15, 32, 133, 150, 308. slander of, 409. SHIPOWNER, words concerning, 82, 133. SHOPKEEPER, words concerning, 80, 81, 82, 230, 231. SHOPMAN, imputing scarlet-fever to, 15, 92, 410. SHOPWOMAN, words imputing prostitution to, 80. SICKNESS, is not special damage, 298, 300, 302, 307. SIGN, libel by, 6, 20. SISTER. brother cannot sue for slander of, 15, 335. SLANDER, defined, 1, 6, 53. distinguished from libel, 3, 17 — 19. when not actionable without proof, of special damage, 297, 298. I. Words imputing an indictable offence, 53, 618, 620. early eases on this subject, 54. the charge must be specific and precise, 61, 120 — 127. the crime imputed must be possible, 63. (706) GENERAL INDEX. 635 [The paging refers to the [*] pages.) SLANDER— Continued. II. Words imputing a contagious disease, 53, 64, 65, 625. III. Words spoken of the plaintiff in the way of his office, profes- sion, or trade, 65—83, 625—629. such words must atlect him in such office, profession, or trade, 67. imputation of professional ignorance or unskilfulness, 70, 626. plaintiff must be carrying on such trade, &c, at the time he is defamed, 71. words imputing want of integrity to any one holding an office of trust, 71. words concerning clergymen, 73 — 75, 625. words concerning barristers, solicitors, &c, 75, 76, 627. words concerning physicians and surgeons, 77. 626. words affecting traders in the way of their trade, 79, 628. imputations of insolvency, 67, 80, 629. imputations of dishonesty and fraud in the conduct of their trade, 81, 628. IV. Words actionable only by reason of special damage, 83 — 92. words imputing immorality, 85. words imputing unchastity, 86. unsatisfactory state of the law on this point, 87 — 89. all words causing special damage are actionable, 89, 150. repetition of, 162—169, 330—334. naming informant, 163. re-assertion in answer to plaintiff's inquiry, 167, 234 — 238. of sister, brother cannot sue for, 15, 335. of deceased father, son cannot sue for, 335. injunction to restrain, 363, 627. proof of the speaking of the, 564. precedents of pleadings, &c, in actions of, 618 — 661. SLANDER OF TITLE, OR WORDS CONCERNING THINGS, 138—150. definition, 138. plaintiff must prove the words false, 172. special damage must be proved, 139. malice must be proved, 142. slander of goods manufactured or sold by another, 147. other words producing special damage, 15, 150. action survives to executor, 408. precedents op pleadings in actions of, 662 — 669. SLANG TERMS, question for jury as to meaning of, 109, 110. evidence for jury as to, 566. SMALL-POX. charge of having, not actionable, 64, 65. " SMASHER," 624, 640. SOCIETY, loss of, words tending to cause, 20. of neighbours, 300, 305. of husband, 300. duty to, communications in pursuance of, privileged, 201 — 229. SOLICITING ANOTHER TO COMMIT A CRIME, charge of, actionable, 56. (707)' (536 GENERAL INDEX. (The paging refers to the [*] pages.) SOLICITOR, words concerning 70, 76, 77, 206, 622, 627, 637. libels on, 28, 98, 105, 116, 228, 621, 619. acting as advocate, privilege of, 190. proof of qualification, 558. not liable for asserting his client's rights, 143, 230. may give information unasked to client, 211. publication of libel to, 208, 231. [*795] SOMERSET HOUSE, register of newspaper proprietors at, 12, 13, 391, 392, 560. SON, cannot sue for slander of deceased father, 335. may take criminal proceedings, 422, 682. complaint to father of conduct of his, 212, 217. SORCERY, charge of, formerly actionable, 60. SOVEREIGN, words defamatory of, 479. words spoken against, 477. compassing death of, 478. SPECIAL CHARACTER, proof of plaintiff's, 558. mode of averring, 531. SPECIAL DAMAGE, when essential to action, 1, 17, 18. defined, 291. words causing, 83 — 92, 147. essential in slander of title, 139, what constitutes, 291, 297. must be specially pleaded, 302. arising after action, 306. where the words are actionable per se, 306. where the words are not actionable per se, 297. remoteness of, 325 — 334. particulars of, 629. SPECIAL JURY, costs of, 579. SPEECHES, in Parliament, reports of, 35, 42, 185, 186, 264. of counsel, 189. reports of, 248—263. SPIRITUAL COURT, jurisdiction of, in cases of defamation, 17, 61, 88. in cases of blasphemy and heresy, 447 — 450. STAR CHAMBER, decrees of, regulating press, 10, 11. STATE PAPERS, privilege as to production of, 563. STATEMENT OF CLAIM, 528—532. joinder of causes of action, 523. the words must be set out verbatim in, 100, 109, 528. averments, what necessary, 118—120, 531. (708) GENERAL INDEX. G37 (The paging refers to the [*] pages.) STATEMENT OF CLAIM— Continued. innuendo, 100—117. 530. words in a foreign language, 529. special damage must be specially pleaded, 532. venue, 532. particulars of, 533, 633. [*796] precedents of, in libel and slander, 618—633, 670—673. in slander of title, 662—669. STATEMENT OF DEFENCE, 532—543, 633—659. See Defence. STATUE may be a libel, 6. STATUTE OF LIMITATIONS, plea of, 540, 653. STATUTES. See Appendix of Statutes, D. 707—729. contents of sucb Appendix, 707. See also Table of Statutes cited. Table of Rules and Orders cited. STAY OF EXECUTION, 580. STEALING, imports a felony, 122. what amounts to charge of, 61, 62, 63, 122. goods of married woman, 63, 96. STOCK-JOBBER, words concerning, 83. STOLEN GOODS, charge of receiving, 55, 123. STORY TOLD BY PLAINTIFF AGAINST HIMSELF, 5, 23. STRIKING OUT causes of action improperly joined, 523. pleadings, 421, 544. interrogatories, 549, 550. STRUCK OFF THE ROLLS, charge that an attorney was, or ought to be, 5, 28, 76, 173, 206, 257. " STRUMPET," 60, 86. SUBORNATION OF PERJURY, charge of, actionable, 56. SUBSCRIBER TO A CHARITY, statement by, respecting the officers of charity, 244. to, by committee, 240. SUBSTANTIAL DAMAGES, 294. SUITOR, communication warning lady against, 219, 240, 274, 645. SUMMARY JURISDICTION of justices to require sureties for good behaviour, 508, 592. to issue warrant to apprehend a libeller, 589 to commit for trial, 590. to take bail, 590. public benefit or truth of libel may be inquired into. 384, 385. in cases of obscene libels, &c, 472 — 475. (70««) 638 GENERAL INDEX. (Tlie pacing refers to lUc [*] i)ages.) SUMMARY JURISDICTION.— Continu d. seizure of oilier libellous papers, illegal, 593. over trivial libels in a. newspaper, 386, 592. [*797] SIMM AR V PROCEEDINGS before magistrates, reports of , 248. SUMMING UP in a civil case, 578. in a criminal case, 604. report of, may be published separately, 258. SUMMONS for particulars, 533, 544, 638. to amend a pleading, 533, 544. for leave to administer interrogatories, 545. for inspection of documents, 553. to change venue, 557. before a magistrate, 589. SUPERIOR COURTS, words concerning, 492. contempts of, 504. SUPERIOR OFFICER, reports to, privileged, 194 — 196. SURETIES for good behaviour, 508, 592. SURGEON, slander of, 77, 78, 85, 305, 626. libels on, 27. proof of qualification of, 558, 559. SURPRISE as ground for new trial, 581, 584. SUSPICION, words of mere, not actionable, 57, 125. bona fide, communication of, 204, 217, 221—229. "SWINDLER," 21, 02. SYPHILIS, charge of having, 64, 65. T. TELEGRAM, publication of libel by, avoids privilege, 152, 286. libellous, liability for transmitting, 417. THEATRICAL PERFORMANCES, criticism on, permitted, 49, 50. THIEF, imputations of, 59, 61, 105, 122, 123. "THIEF," 59, 61, 105, 122. THING, slander of, 14, 138—150. libel on, 30—32, 422. [*798] THIRD PARTY, liability of defendant for act of, 328, 329. liability of, for same or similar libel, no defence, 157, 313, 420, 576. no mitigation, 315. 577. (710) GENERAL INDEX. 639 (The paging refers to the [*] pages.) THREAT to publish a libel with intent to extort money, &c, 426, 427. to witness or suitor, contempt, of court, 497. THREATENING LETTERS, charge of having sent, 105. sending, to extort money, 426, 427. TITLE, slander of, 14, 138—150. See Slander op Title. precedents of pleadings in actions of, 662 — 669. TOWN CLERK, words concerning, 72, 279. may obtain a criminal information, 431. libel on, 621. TOWN CRIER, publication of libel by, 287. TRADE, libel of persons in the way of, 19, 29—32, 65—83, 340—364. humility of, no obstacle to right of action, 79. must be a lawful one, 83, 574. TRADE PROTECTION SOCIETY, circulars of, not privileged, 213. TRADERS, libels on, 29—32. slander of, 79—83, 628. imputation of fraud and dishonesty in trade, 81, 82, 628. of being a cheat or a rogue, 81, 628. words affecting the credit and solvency of, 6, 29, 80, 81, 628. imputations on the goods or commodities of, 30 — 32, 81, 138, 147 — 150. caution to, not to trust a certain customer, 214, 219. words affecting partners in trade, 30, 83, 398. married women traders, 30, 83. a trading company, 30, 415 — 417. that the goods sold by A. are inferior to those sold by B., 31, 147—150. criticisms on advertisements and circulars of, 32, 50, 51. evidence of loss of profits and of business, 298, 307, 629. TRAVERSES, 535, 633, 634. TREASON, 477—479. charge of, actionable, 56. what a sufficient charge of, 121 . words cannot amount to overt act of, 477. treasonable words, 477, 478. [* 799] TRESPASS to land of plaintiff, 84. to building, 13. to person, 14. imputation of, not actionable, 56. TRIAL IN CIVIL CASES, 557. notice of, 557. with a- jury, 557. change of venue, 557. libel or no libel is a question for the jury, 25, 94, 98, 582. evidence for plaintiff, 558 — 570. (711) (540 GENERAL INDEX. (The paging refers 10 the [*] pages.) TRIAL IN CIVIL CASES— Continued. nonsuit, 571. evidence for defendant, 572 — 577. compromise, 578. summing up, 578. the libel itself must be produced at, 582. verdict, 579. reports of, 248—263. comments of, 44—46, 258, 495—498. time of giving evidence to rebut justification, 570. application for a new, 580 — 584, 587. proceedings after, 580. in County Court, 587. TRIAL IN CRIMINAL CASES, pleading for the indictment, 596. certiorari, 597 . evidence for the prosecution, 599. evidence for the defence, 601. summing-up and verdict, 604. proceedings after verdict, 665. sentence, 601. costs, 609. of criminal information, 613. " TRUCKMASTER," 22, 104. TRUSTEES, words concerning, 26, 419. have a common interest, 238. libel on, information for, 424. may all join in one action, 26, 419. TRUTH, as a justification in civil proceedings, 170—180. why a defence, i 79. as a justification in criminal proceedings, 178, 437—439, 718. no defence unless publication was for public benefit, 438, 602, 718. belief in, in mitigation, 313, 612. U. UNCHASTITY, charge of, when actionable, 19, 67, 74, 85—89, 399, 625. unsatisfactory state of law as to, 86 — 89. [* 800] UNCIVIL WORDS, not actionable, lb. UNCONSCIOUS PUBLICATION OF A LIBEL, 155, 432—436, 638, 639, 655. UNDERGRADUATE, must be sued in University Court, 520. UNDER-SHERIFF, on writ of inquiry, no power over costs, 368, 526. UNDUE INFLUENCE, charge of, 130. UNFEELING CONDUCT, charge of, libellous, 22. (712) GENERAL INDEX. (The paging refers to the [*] pages .) UNITARIANISM, not illegal, 460—462. legacies and trusts in favour of, enforced, 462. UNIVERSITY COURT, resident undergraduate must be sued in, 520. UNNATURAL OFFENCES, charge of, actionable, 56, 124. UNSOUNDNESS OF MIND, charge of, 21, 84, 210 no defence, 5, 269, 406, 639. VARIANCE between words laid and those proved, 529, 530, 564, 565, 600. VENDOR AND PURCHASER, privilege in case of, 649. VENEREAL DISEASE, charge of having, actionable, 64. VENIRE DE NOVO, 607. VENUE, plaintiff to select, 532. application to change, 557. grounds for changing, 557. in indictment, 600. VERDICT, in civil case, 579. against weight of evidence, 581, 582. in criminal case, 604. proceedings after, in a civil case, 580 — 584. in a criminal case, 605. cures certain defects, 605. |*801] VESTRY, proceedings of, may be criticised, 33. reports of, 266. 379. meeting, imputations on parish officers at, 234. VEXATIOUS INDICTMENTS ACT, all libels now within, 387, 595. 726. binding over to prosecute, 385, 592. VICE, words imputing, actionable if written, 19. not if spoken, 83 — 86. VICTUALLER, words concerning, 30. " VILLAIN," 20, 62, VINDICATION , _ nni ' of defendant's character from attacks, 232—234, 647. VINDICTIVE DAMAGES, when allowed, 295. 41 LIB. & SLAN. (713) 641 642 GENEBAL INDEX. (The paging refers to the [*] paKes.l VOCALISTS, libel on, 32, 668. V0LEN11 NON FIT INJURIA, 168, 235. VOLUNTARY affidavit, not a judicial proceeding, 194. characters of servants given when not asked for, 202, 203. VOLUNTEERING COMMUNICATIONS in discharge of duty, 213 — 221, 645. not evidence of malice where duty clear, 272, 287, caution given to a tradesman, 214. VULGAR ABUSE, mere words of not actionable, 18, 108, 637. W. WALL, libel by writing or drawing upon, 6, 564. WARRANT OF ARREST, 590. WATCHMAKER, words defamatory of, 67. WATER, charge of supplying bad, 30. [*802] " WELCHER," 62, 110. " WHORE," 60, 86. WIFE, 394—405. communication to, of words defamatory of husband, 153. charge against, communication of to husband, 153. and husband, communications between, 153. presence of, wdll not destroy privilege, 247. words defamatory of, claim for, 631. WILL, charge of secreting, formerly not actionable, 61. " WITCH," 60. WITHDRAWING A JUROR, 578. WITNESS, cannot be asked how he understood the language published, 110, 566. privilege of, 190. defendant as a, 562. proof of previous conviction of, 573. threatening, is a contempt, 493, 497. WOMEN, traders, imputations on, 30, 83, 398. verbal imputations on chasity of, 86 — 89. WORDS, action on the case for, 89 — 92. actionable per se, 18. imputing crime, must be precise, 120 — 127. meaning of, how affected by circumstances, 98, 106 — 108. question for the jury, 94, 98, 216, 263, 273. (714) GENERAL INDEX. 643 [The paging refers to the [*] pages.) WORDS— Continued. general terms of abuse, not actionable, 18, 61, 108. must be set out verbatim in the statement of claim or indictment, 100, 528, •V.2!t, 593. obviously defamatory, 104. primd facie defamatory, 106. adjective, 127. ambiguous, 106—116, 566. ironical, li, 21, 116, 567. jesting, 5, 106, 108. neutral, 109. prima facie innocent, 112. clearly innocent, 116 not in their nature defamatory, 89 — 92. of a cant or slang character, 109, 566. indirect imputations, 125. of suspicion, 57. interrogation, 127, 529. in foreign language, 109, 529, 565. application of, to the plaintiff must be shown, 127 — 133, 567. must be taken in their natural sense, 97. [*803] WORKMEN, action for threatening, 16, 410. WORKS OF ART, criticism on, 48, 49. WRIT, considerations before, 513. endorsement on, 523. service of, is privileged, 191, 518, 519. WRIT OF ERROR, 599, 606. WRIT OF INQUIRY, 526. under-sheriff has no power over costs, 368, 526. THE ENB. i715i u io tZ 0$