UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 A DIGEST 
 
 LIBEL AND SLANDEE; 
 
 WITH ^^^^cyC ^ <^ ^ f 
 
 THE EVIDENCE, PROCEDURE, AND PRACTICE, 
 
 '/^. 
 
 CIVIL AND CRIMINAL CASES, 
 
 PRECEDENTS OF PLEADINGS. 
 
 W. BLAKE ODGEES, M.A., LL.D. 
 
 LATE SCHOLAR AND LAW STUDENT OF TRINITY HALL, CAMBRIDGE, 
 OF THE MIDDLE TEMPLE AND THE WESTERN CIRCtTlt, BARRISTER-AT-LAW. 
 
 'DEAD SCA^TDALS FOKII GOOD SUBJECTS FOR DISSECTIOX.'-Bvrox. 
 
 LONDON: 
 STEVENS AND SONS, 119, CHANCERY LANE. 
 
 ITafa |)ublrsljcrs anb ^oohstllus. 
 1881.
 
 T 
 Od2SU 
 
 LONDON : 
 EHADBtTRY, AONEW, & CO., PRINTERS, WHITEFRIAES.
 
 TO 
 
 ARTHUR CHARLES, Esq., Q.C, 
 
 RECORDER OF BATH, 
 
 IN ACKNOWLEDGMENT OF MANY KINDNESSES, 
 
 I IDcMcnfc tijis ^ooli. 
 
 8064«7
 
 PKEFACE. 
 
 This 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 proposition. 
 
 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 als9 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 requiring the greatest care and much 
 expenditure of time. When I commenced this book in 1876, 1
 
 vi PREFACE. 
 
 did not at all realize the amount of labour which was requisite 
 in order to ascertain the law and state it clearly in an abstract 
 form. 
 
 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 com- 
 ment on it, distinguish it, explain it away, and then leave it 
 with its lustre tarnished, but still apparently a binding authority 
 should identically the same facts recur. 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 criticized, 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 proj)ositions of the Digest, larger than the 
 Illustrations which follow them. 
 
 In thus ascertaining the principles underlying the various 
 decisions, no assistance whatever has been derived from any 
 previous book on the Law of Libel and Slander. No such book 
 has been written on the same plan. For all conclusions of law 
 herein stated, I am, of course, solely responsible. 
 
 My object throughout has been to save the reader trouble. 
 All the references to every decision have always been cited. 
 All considerations of style, &c., have been sacrificed to clearness 
 and convenience. 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
 
 PREFACE. vii 
 
 invariably stated it in both. Thus, nearly the whole of the 
 chapter on Malice will be found scattered up and down the long 
 chapter on Privilege. So, too, for the sake of practical con- 
 venience, all the cases as to the Innuendo and the construction 
 to be put on Defamatory Words, have been collected in 
 Chapter III. In Chapter XII. 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 subject 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 have endeavoured 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 a libel must be published " maliciously," 
 means merely that it must be published " on an unprivileged 
 occasion." I have therefore abandoned this technical and ficti- 
 tious use of the word. Throughout this book (to use the words 
 of Brett, L.J., in Clavk v. Molyneux, see p. 266) "'Malice' 
 does not mean ' malice in law,' a term in pleading, but actual 
 malice, that Avhich is popularly called malice." 
 
 The second part of the book is devoted to Practice, Pro- 
 cedure, and Evidence. I have fought both a civil action and a 
 criminal trial through from beginning to end, giving practical 
 hints to each side. Chapter X. is in short a manual of the 
 practice in an action of tort under the Judicature Act. 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. 449).
 
 preface: 
 
 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 hypotlietical cases of my own in- 
 vention ; but the majority are pleadings in actions in whicli 
 friends of mine, or I myself, have been professionally engaged. 
 
 In June, 1880, appeared the Report of the Select Committee 
 of the House of Commons appointed to inquire into the Law of 
 Newspaper Libel. X have ventured to deal seriatim, with the 
 three recommendations contained in this Eeport, and to express 
 my opinion thereon (pp. 261, 391, 531). A copy of the Report 
 will be found in Appendix B. (p. GG2). 
 
 In conclusion, I have to acknowledge my great obligation to 
 my learned friend, Mr. Wurtzburg, of Lincoln's Inn, who has 
 kindly revised the proofs of this book, added all the references 
 to the various reports, and prepared the elaborate Table of Cases 
 at the commencement of the volume. 
 
 W. Blake Odgers. 
 
 5, Hake Couut, Temple, E.C. 
 February, 1881.
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 TABLE OF CASES xix— Ixvi 
 
 TABLE OF STATUTES CITED Ixvii— Ixix 
 
 TABLE OF RULES AND ORDERS CITED .... Ixx— Ixxii 
 
 PART I. 
 
 A DIGEST OF THE LAW OF LIBEL AND SLANDER. 
 
 — ♦ 
 
 CHAPTER I. 
 
 INTRODUCTORY 1—16 
 
 Definitions 1 
 
 Distinction between Libel and Slander 3 
 
 Motive Immaterial, save on the Question of Damages ... 5 
 
 Acts injurious to Reputation 8 
 
 " Liberiy of the Press " defined 10 
 
 History of the Censorship of the Press . ib. 
 
 Injunction to Restrain a Libel will not be granted .... 13 
 
 CHAPTER II. 
 
 DEFAMATORY WORDS 17—92 
 
 Definitions 17 
 
 Injury to the Reputation the gist of the Action 18 
 
 PART I.— LIBEL. 
 
 Libel defined 21 
 
 Libels on Persons in Office 27 
 
 I>ibols on Professional Men 29 
 
 Libels on Traders ........... 30 
 
 Libels on Tradcra' goods 32
 
 TABLE OF CONTENTS. 
 
 PACE 
 
 Fair and Jo ?«a^r7c Comment on Matters of Public lutercst . . . 31 
 
 Criticism defined and distinguished from Defamation ... 36 
 
 Malicious and Unfair Attacks ......... 38 
 
 What are Matters of Public Interest "ll 
 
 AfEairs of State i2 
 
 Administration of Justice ii 
 
 Public Institutions and Local Authorities . . . . . . i6 
 
 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 54 
 
 Early Cases on this Subject ........ 58 
 
 The Charge must be Specific and Precise 60 
 
 The Crime imputed must be possible 61 
 
 II. Words imputing a Contagious Disease G2 
 
 III. Words spoken of the Plaintiff in the ^vay of his Office, Profession 
 
 or Trade 01 
 
 Such Words must affect him in such Ofiice, Profession or Trade . 65 
 
 Imputation of Professional Ignorance or Unskilfulness . . 67 
 Plaintiff must be cariying on such Trade, &c. at the time he is 
 
 Defamed 69 
 
 Words imputing Want of Integrity to any one holding an Office 
 
 of Trust 70 
 
 Words concerning Clergymen 72 
 
 Words concerning Barristers, Solicitors, &c. .... 71 
 
 Words concerning Physicians and Surgeons . . . . . 75 
 
 Words affecting Traders in the way of their Trade . . .77 
 
 Imputations of Insolvency ........ 78 
 
 Imputations of Dishonesty and Fraud in the Conduct of their 
 
 Trade 79 
 
 IV. Words Actionable only by reason of Special Damage ... 82 
 Words imputing Immorality . ....... 83 
 
 Words imputing Unchastity ........ 84 
 
 Unsatisfactory State of the Law on this point 86 
 
 All Words causing Special Damage are Actionable ... 87 
 
 CHAPTEE III. 
 
 CONSTRUCTION AND CERTAINTY 93—132 
 
 WTiat Meaning the Speaker intended to convey is immaterial . . 93 
 
 Libel or no Libel is a question for the Jury 94 
 
 Duty of the Judge 91 
 
 Words not to be construed in mitlori sensn 95 
 
 Jury to consider the Words as a whole 98 
 
 AVhen Evidence may be given of other Defamatory Puljlications by 
 
 Defendant of Plaintiff 99
 
 TABLE OF CONTENTS. xi 
 
 PAGE 
 
 Of the Innuendo 100 
 
 The Words must be set out vcrhatim in the Statement of Chiim . 101 
 
 1. Words clearly Defamatory 105 
 
 2. Words ^;ru«rt./rtc/6' Defamatory 107 
 
 3. Neutral Words 109 
 
 4. Words j}rimd facie Innocent 112 
 
 5. Words clearly Innocent 116 
 
 Certainty. Early Technicalities 118 
 
 Certainty of the Imputation 120 
 
 Criminal Charges . . . 121 
 
 Indirect Imputations 125 
 
 Certainty as to Person Defamed 127 
 
 CHAPTER IV. 
 
 SCANDALUM 31AGJVATUJI 133—136 
 
 Statutes 133 
 
 What Words are included therein 135 
 
 CHAPTER V. 
 
 SLANDER OF TITLE, OR WORDS CONCERNING THINGS . 137—149 
 
 Definition 137 
 
 I. Slander of Title proper 138 
 
 Actionable, if yvords false and inalicioK.i, and if fij)ccial damage be 
 
 proved ib. 
 
 Proof of Malice 142 
 
 II. Slander of Goods Manufactured or Sold by another . . . 145 
 
 Other Words producing Special Damage 148 
 
 CHAPTER YI. 
 
 PUBLICATION 150—168 
 
 Definition of 150 
 
 Plaintiff must Prove a Publication by the Defendant in fact . . 153 
 
 Publication ^>(er aZM/7?t .......... 155 
 
 Publication in a Newspaper 157 
 
 Repetition of a Slander 161 
 
 Naming your Authority now no Defence ...... 162 
 
 Rule that every one Repeating a Slander becomes an Independent 
 
 Slanderer 166 
 
 Exceptions to this Rule 167
 
 xii TABLE OF CONTENTS. 
 
 CHAPTER VII. 
 
 PAGE 
 
 JUSTIFICATION 169—181 
 
 Onus of Proving AVords tnie is on the Defendant 169 
 
 The whole Libel must be Proved true H- 
 
 The Rule applies to all Eeported Speeches or Eepetitions of Slander 173 
 
 Justification must be Specially Pleaded 177 
 
 Justification in a Criminal Case 178 
 
 Roman Law as to Truth of Libel 180 
 
 CHAPTER YIII. 
 
 PRIVILEGED OCCASIONS 182—263 
 
 Defence that Words were spoken on a Privileged Occasion . . . 182 
 
 Occasions Absolutely Privileged 183 
 
 Occasions in which the Privilege is Qualified . . . . . . ib. 
 
 The Judge to Decide whether Occasion is Privileged or not . . 185 
 
 PART I. 
 
 OCCASIONS ABSOLUTELY PRIVILEGED 185—196 
 
 (i) Parliamentary Proceedings ........ 186 
 
 (ii) Judicial Proceedings ......... 188 
 
 Words Spoken by a Judge if>. 
 
 Words Spoken by Counsel 190 
 
 Words Spoken by a Witness . . . . . . . . 191 
 
 (iii) Naval and Military Affairs 194 
 
 PART II. 
 
 QUALIFIED PRIVILEGE 196—263 
 
 Cases of Qualified Privilege classified 196 
 
 I. Wheee circumstances cast upox the Defendant the 
 
 DUTY OF Making a Communication. 
 
 A. Commvnications made in pvrsvaiice pf fi Dvti/ C7ird to Society . 198 
 
 Duty may be Moral or Social . . ib. 
 
 (i) Characters of Servants ....... 200 
 
 (ii) Other Confidential Communications of a Private Nature. 
 
 («) Answers to Confidential Inquiries . . . . 203 
 
 (5) Confidential Communications not in answer to a 
 
 previous Inquiry . . . . . .207 
 
 (c) Communications made in discharge of a duty 
 arising from a Confidential Relationship exist- 
 ing between the parties 209 
 
 (r/) Information volunteered wlscn there is no Con- 
 fidential Relationship existing between the 
 
 Parties 213 
 
 Difficulty of ilic Question 215
 
 TABLE OF CONTENTS. xiii 
 
 PAor: 
 (iii) Information given to any Piiblin OJiccr iraputiag Crime 
 
 or Misconduct to otliers 220 
 
 Such Officer must have some Jurisdiction to entertain 
 
 Complaint 223 
 
 B. Communlcatloiis made in Self- Defence. 
 
 (iv) Statements necessary to protect Defendant's private 
 
 Interests 225 
 
 (v) Statements provolsed by a previous attack })y riaiutifE 
 
 on Defendant 228 
 
 Statements invited by tlic rhiintili" 230 
 
 II. Wheke 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 233 
 
 Where a large Bod}'- of Persons are interested .... 237 
 If Strangers present, the Privilege will be lost . . . . 239 
 
 III. Privileged Reports. 
 
 (i) Reports of Judicial Proceedings 243 
 
 Matters coram nonjudicc ....... 2-14: 
 
 Reports not privileged ....... 249 
 
 Reports must be accurate ....... 250 
 
 No Comments should be interpolated .... 254 
 
 An accurate Report ina.y still be malicious . . . 256 
 
 (ii) Reports of Parliamentary Proceedings .... 257 
 
 (iii) Other Reports 259 
 
 Suggestion of the Select Committee of the House of 
 
 Commons 261 
 
 CHAPTER IX. 
 
 MALICE 264—288 
 
 Intention of Defendant as a rule immaterial 264 
 
 Material when the Occasion is one of Qualified Privilege . . . 266 
 
 Onus of i^roving Malice lies on the Plaintiff ..... 269 
 
 I. Extrinsic Evidence of Malice 271 
 
 Former publications by Defendant of Plaintiff .... 272 
 That the Words are false is alone no evidence of Malice . . . 274 
 II. Evidence of Malice derived from the Mode and Extent of Publi- 
 cation, the Terms employed, &c. 277 
 
 (i) Where the Expressions employed are exaggerated and 
 unwarrantable ; but there is no other Evidence of 
 
 Malice 279 
 
 (ii) Wliere the Mode and Extent of Pu};lication is Exces- 
 sive 282 
 
 Communicatidns vohmtccred ...... 286
 
 xiv TABLE OF CONTENTS. 
 
 CHAPTER X. 
 
 PAGE 
 
 DAMAGES 289—333 
 
 General and Special Damage Defined and Distinguished . . . 289 
 
 I. General Damages 291 
 
 General Loss of Custom 293 
 
 II. Evidence for tJw Plaintiff in Aggravation of Damages. 
 
 (i) Malice 296 
 
 (ii) Extent of Publication 298 
 
 (iii) PlaintifE's Good Character il. 
 
 III. Evidence for the Defendant in Mitigation of Damages. 
 
 (i) Apology and Amends 299 
 
 (ii) Absence of Malice 301 
 
 Conflicting Cases on this Point 303 
 
 (iii) Evidence of the Plaintiff's Bad Character , , . 304 
 
 (iv) Plaintiff's previous Conduct in provoking the Publication 306 
 
 (v) Absence of Special Damage 308 
 
 IV. Sj)ecial Damage where tJie ivoi'ds are 7iot actionable per se , . ib. 
 
 What constitutes Special Damage 309 
 
 Special Damage must be specially pleaded 313 
 
 Special Damage subsequently arising 317 
 
 v. Sj)eclal Damage where the words are actionable per se . . . 318 
 
 YI. Remoteness of Damages 321 
 
 Damage resulting to the Husband of the Female Plaintiff . . 323 
 
 Damage caused by the act of a Third Party 325 
 
 Not essential that such Third Person should believe the Charge . 327 
 Wrongful and Spontaneous Act of a Third Person . . . . 328 
 Originator of a Slander not liable for Damage caused by its repe- 
 tition 329 
 
 Exceptions to this Rule 331 
 
 CHAPTER XI. 
 
 COSTS 33i— 343 
 
 Costs now fol]o\Y the Event 334 
 
 All early Statutes as to Costs repealed by Judicature Act . . . 335 
 
 Application to deprive succeGsfi;l Plaintiff of Costs . . . . 336 
 
 Costs of New Trial 338 
 
 Apportionment of Costs of Issues ib. 
 
 Costs after Payment in Court 340 
 
 Costs of Counterclaim 341 
 
 Costs in Criminal Proceedings 343 
 
 CHAPTER XIT. 
 
 THE LAW OF PERSONS IN BOTH CIVIL AND CRIMINAL CASES 
 
 344—372 
 
 1. Husband and Wife 345 
 
 Claim by Husband for Words defamatory of Wife. . . . 347 
 
 i\Iarried Woman Defendant 350 
 
 Criminal Liability of a Married Woman 351
 
 TABLE OF CONTENTS. 
 
 2. Infants 352 
 
 3. Lunatics ............ 353 
 
 4. Bankrupts ............ 3.54 
 
 .5. Receivers 355 
 
 6. Executors and Administrators . . . . , . . , ib. 
 
 7. Aliens 356 
 
 8. Master and Servant— Principal and Agent 358 
 
 Master's Commands no Defence ....... 359 
 
 Principal liable for Words spoken by his Authority . . . , 360 
 
 Ratification 361 
 
 Criminal Liability of Master or Principal 362 
 
 9. Partners 365 
 
 10. Corporations and Companies ........ 367 
 
 11. Other Joint Plaintiffs 369 
 
 12. Joint Defendants 37O 
 
 CHAPTER XIII. 
 
 CRIMINAL LAW 373—393 
 
 Illegality of Contracts as to Libellous Matter 374 
 
 I. Criminal Remedy by Indictment 375 
 
 ^Special Intent, when necessary 376 
 
 Punishment at Common Law ....... 378 
 
 Statutes . . . 397 
 
 II. Criminal Remedy by Information 380 
 
 Libels on Foreign Ambassadors, &c. 383 
 
 III. Law Common to all Criminal Cases n^ 
 
 Publication of a Libel by one unconscious of its Contents . . 384 
 
 Criminal Liability of an Emialoyer ...... 385 
 
 Justification not permitted at Common Law 388 
 
 Justification under Lord Campbell's Act 389 
 
 Considerations as to Criminal Proceedings for Libel ..... 390 
 
 Suggestion of the Select Committee of the House of Commons . . . 391 
 
 CHAPTER XIV. 
 
 BLASPHEMOUS WORDS 394—403 
 
 Blasphemous Words defined 394 
 
 Intent to bring Religion into Contempt ... ... 395 
 
 Honest Advocacy of Heretical Opinions 396 
 
 Justification not allowed 398 
 
 Statutory Provisions 4OO 
 
 Jurisdiction of Ecclesiastical Courts 402 
 
 CHAPTER XV. 
 
 OBSCENE WORDS 404—408 
 
 Test of Obscenity 404 
 
 Siunmary Proceedings under 20 & 21 Vict. c. 8.") 405
 
 TABLE OF CONTENTS. 
 
 CHAPTEE XYT. 
 
 SEDITIOUS WORDS 
 
 Seditious Words defined ..... 
 Treasonable Words ..... 
 Words Defamatory of the Sovereign himself . 
 
 Truth no Defence 
 
 Words Defamatory of the King's Ministers 
 Words tending to Subvert the Government . 
 Words Defamatory of the Constitution . 
 Latitude allowed to Political Writer's . 
 AVords inciting to DisafEection and Riot . 
 Words Defamatory of either House of Parliament 
 Commitment for Contempt ..... 
 
 Colonial Legislative Bodies 
 
 Words Defamatory of the Superior Courts of Justice 
 Contempt of Court ...... 
 
 Wilful Disobedience to an Order of Court 
 Attachment and Committal ..... 
 
 Colonial Courts of Justice 
 
 Words Defamatory of Inferior Courts of Justice , 
 Contempt of an Inferior Court of Record 
 Sureties for Good Behaviour .... 
 Statutory Powers of Inferior Courts 
 Ecclesiastical Courts 
 
 PAGE 
 
 409—448 
 
 . . 409 
 
 . 410 
 
 . . 413 
 
 . 414 
 
 . . 415 
 
 . 418 
 
 . . 419 
 
 . 420 
 
 . . 421 
 
 422 
 
 . . 423 
 
 . 425 
 
 , . 42<] 
 
 . 428 
 
 . . 431 
 
 . 433 
 
 . . 438 
 
 . 440 
 
 . . 442 
 
 . 444 
 
 . . 445 
 
 . 448 
 
 PART II. 
 
 PRACTICE, PROCEDURE, AND EVIDENCE. 
 
 CHAPTEK XVII. 
 
 PRACTICE AND EVIDENCE IN CIVIL CASES .... 449—570 
 
 Considerations before Writ 449 
 
 Parties 452 
 
 Letter before Action ; Notice of Action ....... 453 
 
 Choice of Coiu-t ih. 
 
 District Registry 454 
 
 Statute of Limitations 455, 490 
 
 Former Proceedings 456 
 
 Joinder of Causes of Action ......... 458 
 
 Endorsement on Writ . . . ' 459 
 
 Service of the Writ 400 
 
 Appearance . 4()2 
 
 Judgment by Default 403 
 
 Matters to be considered by the Defendant . . . . . . 405 
 
 Security for Costs 406 
 
 Remitting the Action to the County Court . . . . . . 408
 
 TABLE OF CONTENTS. xvii 
 
 PAGE 
 
 Statement of Claim 
 
 Veime 
 
 474 
 
 Instractioas for Statement of Defence ■^'^S 
 
 Demurrer ....••••••• 
 
 479 
 
 Statement of Defence- '*^^ 
 
 481 
 Traverses ....•••••■••' 
 
 Bond fide Comment. No Libel 
 
 484 
 Justification . 
 
 Privilege 
 
 . 485 
 
 Apology J^^ 
 
 Accord and Satisfaction . 40 
 
 Previous Action 
 
 Other Defences ^ ' 
 
 491 
 Payment into Court 
 
 Counterclaims 
 
 Judgment in Default of Fleadiny: ^^'^ 
 
 l'^'\,- .'.' .'.%l 
 
 Itejuinder .....•••••• 
 
 Amendment of Pleadings . . . • , ■ • • • • * • 
 
 Default in Pleading ^^ 
 
 Interrogatories ^ " 
 
 • fiOQ 
 
 Striking out Interrogatories 
 
 ■ "ill 
 
 Answers to Interrogatories 
 
 Further and Better Answers °'^'* 
 
 Discovery of Documents . . • • J- ' 
 
 Further and Better Affidavit ^^^ 
 
 Inspection of Documents 
 
 Default in making Discovery °f ^ 
 
 Notice of Trial. Entry for Trial *^- 
 
 Advice on Evidence 
 
 Examination of Witnesses before Trial ^-° 
 
 o • 1 T ... 528 
 
 bljecial Jury 
 
 Change of Venue ^ ' 
 
 Trial f^ 
 
 Proof of the riaiutiff's Special Character oovj 
 
 Proof of Publication ... ^^^ 
 
 Proof of the Libel ^^^ 
 
 Proof of the Speaking of the Slander ^37 
 
 Evidence as to the Innuendo °^° 
 
 Proof that the Words refer to the Plaintilf 540 
 
 Proof that the Words were spoken of the Plaintiff in the way of his 
 
 Office, Profession, or Trade ^^^ 
 
 Evidence of Malice , • 
 
 542 
 
 Evidence of Damage ^ 
 
 Nonsuit _ 
 
 Evidence for the Defendant ^1° 
 
 "Withdrawing a Juror ""^ 
 
 Summing-up 
 
 ^''^"^ict 
 
 Judgment 
 
 b
 
 xviii TABLE OF CONTENTS. 
 
 PAGE 
 
 Costs 553 
 
 Proceedings after Judgment ooi 
 
 Application for a New Trial 556 
 
 Proceedings in the Court of Appeal 561 
 
 County Court Proceedings 5Go 
 
 Other Inferior Courts 569 
 
 CHAPTER XVIII. 
 
 PRACTICE AND EVIDENCE IN CRIMINAL CASES . . 571—596 
 
 PART I. 
 
 PRACTICE AND EVIDENCE IN CRIMINAL PROCEEDINGS BY 
 
 WAY OF INDICTMENT 571—591 
 
 Proceedings before Magistrates 571 
 
 Indictment 574 
 
 Pleadmg to the Indictment 576 
 
 Certiorari 578 
 
 Evidence for the Prosecution 580 
 
 Evidence for the Defence 582 
 
 Summing-up and Verdict 585 
 
 Proceedings after Verdict i^- 
 
 Sentence 589 
 
 Costs 590 
 
 PART II. 
 
 PRACTICE AND EVIDENCE IN PROCEEDINGS BY WAY OF 
 
 CRIMINAL INFORMATION 591—596 
 
 Motion for the Rule 591 
 
 Ai'gument of the Rule 593 
 
 Compromise ............ 594 
 
 Trial and Costs 595 
 
 APPENDICES. 
 
 A. APPENDIX OF PRECEDENTS OF PLEADINGS, ETC. . 596—661 
 
 Contents 596 
 
 I. Precedents of Pleadings in Actions for Libel ... . . ("00 
 
 II. Precedents of Pleaduigs in Actions of Slander .... 621 
 
 III. Precedents of Pleadings in Actions of Slander of Title . . . 634 
 
 IV. Forms of Pleadings, Notices, &c., in the County Court . . 644 
 V. Precedents of Criminal Pleadings 649 
 
 B. REPORT FROM THE SELECT COMMITTEE OF THE HOUSE 
 
 OF COMMONS ON THE LAW OF LIBEL . . . .662 
 
 C. APPENDIX OF STATUTES 064—683 
 
 Contents 664 
 
 GENERAL INDEX 685—748
 
 TABLE OF CASES. 
 
 Abu— Ann. page 
 
 • V. Moor, 1 M. & S. 284 305 
 
 Abud V. Eiches, 2 Ch. D. 528 ; 45 L. J. CL. 649 ; 24 W. E. 037 ; 34 
 
 L. T. 713 . . . . 434 
 
 Adams v. Kelly, Ey. & Moo. 157 . . . 155, 333, 533, 535, 538 
 
 V. Meredew, 2 Y. & J. 417 ; 3 Y. & J. 219 . . . . 104 
 
 t;. Elvers, 11 Barbour (N. Y.)Eep. 390 83 
 
 Adlam v. Colthurst, L. E. 2 Adm. & Eccl. 30 ; 3G L. J. Ec. Ca. 14 
 
 433, 447 
 
 Aish V. Gerish, 1 EoU. Abr. 81 131 
 
 Aldiich V. Press Printing Co., 9 Min. 133 368 
 
 Alexander v. Angle, 4 M. & P. 870 ; S. C. sah tiom. Angle v. 
 
 Alexander, 7 Biug. 119 ; 1 Tyr. 9 ; 1 C. & J. 143 . 66, 
 
 78, 103, 120, 295 
 
 V. North Eastern Ev. Co., 6 B. & S. 340 ; 34 L. J. Q. B. 152 ; 
 
 11 Jur. N. S. 6^9 ; 13 W. E. 651 . . . .170, 173, 
 
 253, 368, 497, 498, 549 
 Alfred v. Farlow, 8 Q. B. 854 ; 15 L. J. Q. B. 258 ; 10 Jur. 714 . . 56, 
 
 60, 123 
 Allardice v. Eobertson, 1 Dow X. S. 514 ; 1 Dow & Clark, 495 ; 6 
 Sh. & Dun. 242 ; 7 Sh. & Dun. 691 ; 4 Wils. & Sh. App. Ca.«. 
 
 102 190 
 
 Allen V. Eaton, 1 Eoll. Abr. 54 76 
 
 Alleston v. Moor, Hetl. 167 ....... 71, 75 
 
 Allliuseu V. Laboucliere, (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 . . . 505, 510, 511 
 Allsop & wife V. Allsop, 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 6 Jur. N. 
 
 S. 433 ; 8 W. E. 449 ; 36 L. T. Old S. 290 86, 312, 323, 325, 349 
 
 Aniann v. Dauim, 8 C. B. N. S. 597 ; 29 L. J. C. P. 313 ; 7 Jur. 
 
 N. S. 47 ; 8 W. R. 470 217, 218, 220, 225, 475 
 
 Anderson v. Bank of British Columbia, (C. A.) 2 Ch. D. 644; 45 L. J. 
 
 Ch. 449 ; 24 W. E. 724 ; 35 L. T. 76 . . . 516, 517 
 
 V. Dunn, 6 Wheat. 204 424 
 
 V. Hamilton, 2 Brod. & B. 156, n 536 
 
 Andres v. Wells, 7 Johns. (N. York) 260 362 
 
 Andrews, Ex parte, In re Fells, 4 Ch. D. 509 ; 46 L. J. Bkcy. 23 ; 25 
 
 ^V. R. 382 ; 36 L. T. 38 " . . 431 
 
 V. Chapman, 3 C. &: K. 286 251, 255 
 
 Angle V. Alexander, 7 Bing. 119 ; 1 Tyrw. 9 ; 1 C. & J. 143 ; 4 M. & 
 
 P. 870 66, 78, 103, 120, 295 
 
 Annison v. Blofield, Carter, 214 ; 1 Eoll. Alir. 55 . . . .75, 111 
 
 xix h 2
 
 Ano— Ayr. TABLE OF CASES. 
 
 PAGE 
 
 Auon., 2 Barnard. 138. See K. \\ Csborii 381 
 
 'llxMod.99 22,24,104 
 
 1 lloU. Abr. 82 102 
 
 1 Roll. 746 96 
 
 Cro. Eliz. 643 ^o 
 
 3 Leon. 231 ; 1 Roll. Abr. 65 60, 122 
 
 Holt, 652 126 
 
 1 Roll. Abr. 37 139 
 
 1 Roll. Abr. 81 130 
 
 60 N. Y. 262 . . 328 
 
 (1596) Moo. 459 -1-2 
 
 ■ (1638) Cro. Jac. 516 "-^ 
 
 (1650) Stvle, 251 -l-^l 
 
 (1696) 2 ,Salk. 644 558 
 
 Stvle, 392 -^"2, 575 
 
 [j^ar Lush, J.) 1 Charley, 100 ; Bitt. 4 ; 20 Sol. J. 32 ; 60 L. T. 
 
 Notes, 32 501 
 
 (mr Lush, J.) 1 Charley, 109 ; Bitt. 24 ; 60 L. T. Notes, 66 . 519 
 
 (jjer Quain, J.) 1 Charley, 119 ; Bitt. 53 ; 60 L. T. Notes, 103 . 528 
 
 Anstey v. N. & S. Woolwich Subway Co., 11 Ch. D. 439 ; 48 L. J. Ch. 
 
 776 ; 27 W. R. 575 ; 40 L. T. 393 515 
 
 Anthony I'. Halstead, 37 L. T. 433 557 
 
 Ar>plel>y v. Waring, 15 L. J. Notes of Cases, 1880, p. 125 . . . 520 
 Archboid v. Sweet, 1 Moo. & Rob. 162 ; 5 C. & P. 219 .. . 29 
 
 Armitage v. Dunster, 4 Dougl. 291 537 
 
 V. Fitzwilliam and others, W. N. 1876, p. 56 ; Bitt. 126 ; 
 
 20 Sol. J. 281 ; 60 L. T. Notes, 251 . . . .503 
 
 Armstrong v. Lewis, 2 Cr. & M. 274 551 
 
 Arney. Johnson, 10 Mod. Ill 65,79,115 
 
 Arnold v. Clifford, 2 Sumner, 238 374 
 
 Ashley v. Harrison, Peake, 256 ; 1 Esp. 48 . . . 293, 314, 319, 322 
 
 r. Taylor, 37 L. T. 522 ; (C. A.) 38 L. T. 44 . . . . 506 
 
 Ashworth V. Outram, 9 Ch. D. 483 ; 27 W. R. 98 ; 39 L. T. 441 
 
 337, 565 
 Asquith V. Molineux, 49 L. J. Q. B. 800 ; W. N. 1880, p. 156 . . 524 
 Astley (Sir John) %\ Younge, 2 Burr. 807 ; 2 Ld. Ken. 536 . 192, 193 
 
 Aston V. Blagrave, 1 Str. 617 ; 8 Mod. 270; Fort. 206; 2 Lord Raym. 
 
 1369 . . 69, 71 
 
 Atherley v. Harvey, 2 Q. B. D. 524 ; 46 L. J. Q. B. 518 ; 25 W. R. 
 
 727 ; 36 L. T. 551 505 
 
 Atkins %. Perrin, 3 F. & F. 179 144 
 
 Atkinson v. Fosbroke, L. R. 1 Q. B. 628 ; 35 L. J. Q. B. 182 ; 12 Jur. 
 
 N. S. 810 ; 14 W. R. 832 ; 14 L. T. 553 . . . . 470, 503 
 
 Atthill V. Soman, 15 L. T. 36 295 
 
 Attorney-General v. Le IMerchant, 2 T. R. 201 n 581 
 
 I'. Siddon, 1 Cr. & Jer. 220 364 
 
 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 . . . . 425 
 Augustinus v. Nerinckx, (C. A.) 16 Ch. D. 13 ; 43 L. T. 458 . . 506 
 Austin (Sir J.) v. Culpepper, 2 Show. 313 ; Skin. 123 . . . . 8, 22 
 Axmann v. Lund, L. R. 18 Ec|. 330 ; 43 L. J. Ch. 655 ; 22 W. R. 
 
 789 144 
 
 Ayre v. Craven, 4 N. & M. 220 ; 2 A. & E. 2 . . 66, 76, 77, 84, 541
 
 TABLE OF CASES. Baa— Bea. 
 
 PAGE 
 
 Baal v. Baggerley, Cro. Car. 326 ...... 55, 122 
 
 Baboneaii v. Farrell, 15 C. B. 360 ; 24 L. J. C. P. 9 ; 3 C. L. R. 42 ; 1 
 
 Jur. N. S. 114 80, 114 
 
 Ba.-g's Case, 11 Rep. 93, 95 ; 1 Rolle Rep. 79, 173, 224 .. . 441 
 
 Baiiibridge v. Lax, 9 Q. B. 819 489 
 
 Baker v. Lane, 3 H. & C. 544 ; 34 L. J. Ex. 57 ; 13 W. R. 293 ; 11 
 
 L. T. 638 • 504 
 
 . . V. Morfue vd Morpliew, Sid. 327 ; 2 Keble, 202 . . . 68, 75 
 
 V. Newton, W. N. 1876, p. 8 ; 1 Charley, 107 ; Bitt. 80 ; 20 Sol. 
 
 J. 177 ; 60 L. T. Notes, 157 507 
 
 — V. Oakes, (C. A.) 2 Q. B. D. 171 ; 46 L. J. Q. B. 246 ; 25 W. R. 
 
 220; 35 L. T. 832 336 
 
 V. Pierce, 2 Ld. Raym. 959 ; Holt, 654 ; 6 Mod. 23 ; 2 Salt. 
 
 695 18, 55, 61, 122 
 
 Baldwin v. Elphinston, 2 W. Bl. 1037 .... 152^ 157, 472, 532 
 
 ^. Flower, 3 Mod. 120 ' • .350 
 
 BaU V. Roane, Cro. Eliz. 308 119 
 
 Banister v. Banister, 4 Rep. 17 139, 143 
 
 Bank of Australasia v. Hardinc;, 9 C. B. 661 ; 19 L. J. C. P. 345 . . 439 
 
 V. Nias, 16 Q. B. 717 ; 20 L. J. Q. B. 284 . . 439 
 
 Bank of British North America v. Strong, 1 App. Gas. 307 ; 34 L. T. 
 
 627 191, 228 
 
 Banke'suAllen, Roll. Abr. 54 74 
 
 Barbaud v. Hookham, 5 Esp. 109 238 
 
 Barbara's Case, 4 Rep. 20 ; Yelv. 21 103 
 
 Barmund's Case, Cro. Jac. 473 85, 311 
 
 Barnabas v. Trannter, 1 Yin. Abr. 396 ... . 59, 311, 325 
 Barnes v. Hollowav, 8 T. R. 150 537 
 
 V. Prudlin," or Bruddel, 1 Sid. 396 ; 1 Yentr. 4 ; 1 Lev. 261 ; 
 
 2Keb. 451 312,316 
 
 Bamett v. Allen, 3 H. & X. 376 ; 27 L. J. Ex. 412 ; 1 F. & F. 125 ; 
 
 4Jur.N.S.488 . . : 24,61,83,539 
 
 Barratt v. Collins, 10 Moo. 451 370 
 
 Barrett v. Long, 3 H. L. C. 395 ; 7 Ir. L. R. 439 ; 8 Ir. L. R. 331 
 
 272, 276 
 
 Barrens v. Ball, Cro. Jac. 331 .• ^i^ 
 
 Barrow v. Lewellin, Hob. 62 ...... • 150, 151 
 
 Barry v. Barclay, 15 C. B. X. S. 849 527 
 
 V. M'Grath, Ir. R. 3 C. L. 576 301, 493 
 
 Bartlett v. Lewis, 12 C. B. N. S. 249 ; 31 L. J. C. P. 230 . . . 504 
 Barwell v. Adkins, 1 M. & G. 807; 2 Scott, N. R. 11 . . 274, 276 
 
 Barwis v. Keppel, 2 Wils. 314 195 
 
 Bash V. Somner, 20 Penns. St. R. 159 350 
 
 Bassell v. Elmore, 48 N. Y. R. 563 ; 65 Barb. 627 316 
 
 Bateman d ux. v. Lvall d ux., 7 C. B. N. S. 638 . . .315, 330, 543 
 Bathurst v. Coxe, llveb. 451, 465 ; Sir T. Raym. 68 . . . . 440 
 
 V. Kearslev, 13 Yes. 494 14 
 
 Baylis v. LawTence,''ll Ad. & E. 920 ; 3 P. & D. 526 ; 4 Jur. 652 
 
 94, 265, 550 
 
 Beach v. Rannev, 2 Hill (X. Y.), 309 312 
 
 Beach d ux. v. Beach, 2 Hill (N. Y.), 260 ... • 349, 490 
 
 Beamond v. Hastings, Cro. Jac. 240 71 
 
 Beatson v. Skene, 5 H. & N. 838 ; 29 L. J. Ex. 430 ; 6 Jur. N. S. 780 ; 
 
 2 L. T. 378 204, 206, 519, 545 
 
 Beaumont v. Barrett, 1 Moore, P. C. C. 76 . . . • 425, 426 
 
 xxi
 
 Bed-Bla. TABLE OF CASES. 
 
 PAGE 
 
 Beclilin-lon v. Beadm^ton, 1 V. D. 426 ; 45 L. J. P. D. 44 ; 24 W. E. 
 
 348 ; 34 L. T. 366 357 
 
 Bedwell V. Wood, 2 Q. B. D. 626; 25 W. R. Dig. 188; 36 L. T. 213 . 337 
 Behrens^ v. Allen, 3 F. & F. 135 ; 8 Jnr. N. S. 118 . . . 171, 486 
 
 Bell V. Byrne, 13 East, 554 125, 471, 536 
 
 V. Midland Eailwav Co., 10 C. B. N. S. 287 ; 30 L. J. C. P. 273 ; 
 
 9 ^Y. R. 612 ; 4 L. T. 293 83, 292 
 
 V Parke, 10 Ir. C. L. R. 279 ; 11 Ir. C. L. R. 413 207, 238, 305, 306 
 
 V. Stone, 1 B. & P. 331 22 
 
 1'. Wilkinson and another, (C. A.) 26 W. R. 275 ; W. N. 1878, 
 
 p. 3 . . . 478 
 
 Bellamy v. BurcL, 16 M. & W. 590 64, 81 
 
 Benbow v. Low, 13 Ch. D. 553 ; 49 L. J. Ch. 259 ; 28 W. R. 384 ; 42 
 
 L. T. 14 498 
 
 Bendislit'. Lindsay, 11 Mod. 194 5,6 
 
 Bennett v. Barry, 8 L. T. 857 236 
 
 V. Bennett, 6 C. & P. 586 302 
 
 V. Deacon, 2 C. B. 628 ; 15 L. J. C. P. 289 . . 215, 218 
 
 Bennett et ux. v. Watson and another, 3 M. & S. 1 . . . . 447 
 
 Benson v. Flowers, Sir W. Jones, 215 . . . . . . . 354 
 
 Berdan v. Greenwood and another, 3 Ex. D. 251 ; 47 L. J. Ex. 628 ; 
 
 26 W. R. 902 ; 39 L. T. 223 . . . 301, 480, 492, 493, 494 
 Berkeley v. Standard Discount Co., (interloc.) 9 Ch. D. 643 ; 26 W. R. 
 
 852 502 
 
 12 Ch. D. 295 ; 48 L. J. Ch. 797 ; 
 
 27 W. R. 852 ; 41 L. T. 29 501 
 
 (C. A.) 13 Ch. D. 97 ; 49 L. J. Ch. 
 
 1 ; 28 W. R. 125 ; 41 L. T. 374 501 
 
 Bcrrynian v. Wise, 4 T. R. 366 69, 530 
 
 Besant v. Wood, 12 Ch. D. 605 ; 40 L. T. 445 553 
 
 Bickford v. Darcev and Beachey, L. R. 1 Ex. 354 ; 14 W. R. 900 ; 14 
 
 L. T. 629 ' 504 
 
 Biddulph V. Charaberlayne, 17 Q. B. 351 177, 340 
 
 Biggs V. Great Eastern Railway Co., 16 W. R. 908 ; 18 L. T. 482 173, 253 
 Bignell v. Buzzard, 3 H. & X. 217 ; 27 L. J. Ex. 355 . . . . 31 
 Bigsfcy V. Dickinson, (C. A.) 4 Ch. D. 24 ; 46 L. J. Ch. 280 ; 25 W. R. 
 
 89, 122 ; 35 L. T. 679 564, 565 
 
 Bill V. Neal, 1 Lev. 52 69, 71 
 
 Birmingham Estates Co. v. Smith, 13 Ch. D. 506 ; 49 L. J. Ch. 251 ; 
 
 28V. R. 666 ; 42 L. T. Ill 495 
 
 Bishop, In re, Ex parte Smith, 13 Ch. D. 110 ; 49 L. J. Bkcy. 1 ; 28 
 
 W. R. 174 ; 41 L. T. 388 432 
 
 Bishop V. Latimer, 4 L. T. 775 .... 30,75,99,172,256,486 
 Bishops' (Tlie Seyen) Case, 4 St. Tr. 300 .... 534, 581 
 
 Bittridge's Case, 4 Rep. 19 99, 109 
 
 Black V. Hunt, 2 L. R. Ir. 10 61, 82 
 
 Blackburn v. Blackljurn, 4 Bing. 395 ; 1 M. & P. 33, 63 ; 3 C. & P. 
 
 146 .... '. 264 
 
 Blackham v. Pugh, 2 C. B. 611 ; 15 L. J. C. P. 290 . 145, 226, 235 
 
 Blackman v. Bryant, 27 L. T. 491 61, 82, 111 
 
 Blades V. Lawrence, L. R. 9 Q. B. 374 ; 43 L. J. Q. B. 133 ; 22 W. R. 
 
 643 ; 30 L. T. 378 567 
 
 Blagg V. Sturt, 10 Q. B. 899 ; 16 L. J. Q. B. 39 ; 11 Jur. 101 ; 8 L. T. 
 
 Ohl S. 135 29, 224, 270, 276 
 
 Blake, Be, 30 L. J. Q. B. 32 . 7, 253 
 
 xxii
 
 TABLE OF CASES. Bla— Bre. 
 
 PAQE 
 
 Blake v. Albion Assurance Society, 4 C. P. D. 94 ; 48 L. J. C. P. 169 ; 
 
 27 W. K. 321 ; 40 L. T. 211 272 
 
 V. Appleyard, 3 Ex. D. 195 ; 47 L. J. Ex. 407 ; 26 W. R. 592 
 
 341, 342 
 
 V. Pilfold, 1 M. & Rob. 198 217, 223, 535 
 
 V. Stevens and others, 4 F. & F. 232 ; 11 L. T. 543 
 
 7, 30, 154, 170, 173, 253, 297 
 Bliss V. Stafford, Owen, 37 ; Moore, 188 ; Jenk. 247 . . . . 140 
 Bloodworth v. Gray, 8 Scott, N. R. 9 ; 7 M. & G. 334 . . . . 63 
 
 Blumley v. Rose, 1 Roll. 73 106 
 
 Bolckow V. Young, 42 L. T. 690 508 
 
 Bold V. Bacon, Cro. Eliz. 346 139 
 
 Bolton (Sir William) w Dean, cited in Austin v. Culpepper, 2 Show. 
 
 313 ; Skinner, 123 9 
 
 Bond V. Douglas, 7 C. & P. 626 155, 272, 333, 533 
 
 Bonomi v. Backhouse, E. B. & E. 662 ; 9 H. L. C. 503 ; 34 L. J. Q. B. 
 
 181 317, 456 
 
 Boosey v. Wood, 3 H. & C. 484 ; 34 L. J. Ex. 65 ; 11 Jur. N. S. 181 ; 
 
 13 W. R. 317 ; 11 L. T. 639 489 
 
 Booth V. Briscoe, (C. A.) 2 Q. B. D 496 ; 25 AV. R. 838 28, 47, 365, 370 
 
 Boston v. Tatam, Cro. Jac. 623 58 
 
 Botterill and another v. Whvtehead, 41 L. T. 588 
 
 68, 77, 172, 214, 219, 234, 601 
 
 Bourke v. Warren, 2 C. & P. 307 129, 130, 540 
 
 Bourn's (Sir John) Case, cited Cro. Eliz. 497 . .... 131 
 
 Bowden v. Allen, 39 L. J. C. P. 217 ; 18 W. R. 695 ; 22 L. T. 342 . 513 
 Bowey v. Bell, 4 Q. B. D. 95 ; 48 L. J. Q. B. 161 ; 27 W. R. 247 ; 39 
 
 L. T. 608 336 
 
 Boxe V. Barnaby, 1 Roll. Abr. 55 ; Hob. 117 75 
 
 Boydell v. Jones, 4 M. & W. 446; 7 Dowl. 210 ; 1 Horn & H. 408 
 
 23, 27, 99, 116, 256 
 Boyle V. Wiseman, 10 Ex. 647 ; 11 Ex. 360 ; 24 L. J. Ex. 160, 284 ; 
 
 24 L. T. Old S. 274 ; 25 L. T. Old S. 203 . . . 504, 534, 536 
 
 Bracebridge v. Watson, Lilly Entr. 61 311 
 
 Bracegirdle v. Bailey, 1 F. & F. 536 8, 305 
 
 V. Orford, 2 Man. & S. 77 8 
 
 Bradlaugh, Ex parte, 3 Q. B. D. 509 ; 47 L. J. M. C. 105 ; 26 W. R. 
 
 758 ; 38 L. T. 680 406 
 
 and 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 . 405, 424 
 
 S. C. sub nomine R. v. Bradlaugh and Besant, 2 Q. B. D. 
 569 ; 46 L. J. M. C. 286 ; 25 W. R. Dig. 91 . . 586 
 
 Bradley v. Methwyn, Selwjni's Nisi Prius, 982 5 
 
 Bradt v. Towsley, 13 Wend. 253 313 
 
 Brady v. Youlden, Kerferd & Box's Digest of Victoria Cases, 709 ; 
 
 Melbourne Argus Reports, Sept. 6th, 1867 .... 67, 317 
 Brand and wife v. Roberts and wife, 4 Burr. 2418 . . . . 59, 85 
 Brandreth v. Lance, 8 Paige, 24 (American) . . . . .15 
 Brandrick v. Johnson, 1 Vict. L. R. Cases at Law, 306 . . . 66, 77 
 Bray v. Ham, 1 Browul. & Golds. 4 . . . . . . .80 
 
 Brayne v. Cooper, 5 M. & W. 249 56, 66, 78, 84 
 
 Brembridge v. Latimer, 12 W. R. 878 ; 10 L. T. 816 . 102, 177, 487 
 
 Brett V. Watson, 20 W. R. 723 . . . ... 154, 271 
 
 Brewer v. Dew and another, 11 M. & W. 625 8 
 
 xxiii
 
 Bre-Bui-. TABLE OF CASES. 
 
 PAGE 
 
 Brewster's Case, Dig. L. L. 76 420, 421 
 
 Bridges v. Playdel, Brownl. & Goldsb. 2 56 
 
 Brisret's Case, Godb. 157 56 
 
 Briiie V. Bazaloette, 3 Ex. 692 ; 18 L. J. Ex. 348 . . . 275, 298 
 Brinsmead r. Harrison, L. E. 7 C. P. 547 ; 41 L. J. C. P. 190 ; 20 
 
 W. R. 784 ; 27 L. T. 99 457 
 
 Broadhurst v. Willej^ W. N. 1876, p. 21 .341 
 
 Brocklehank v. Kins^'s Lvnn Steanii^liip Co., 3 C. P. D. 365 ; 47 L. J. 
 
 C. P. 321 ; 26 W. R. Dig. 64 ; 38 L. T. 489 . . . . 354, 467 
 
 Broke's Case, Moore, 409 74 
 
 Bromage r. Prosser, 6 D. & R. 296 ; 4 B. & C. 247 ; 1 C. & P. 475 
 
 164, 206, 240, 264, 267, 282, 471 
 
 Bromefield r. Snoke, 12 Mod. 307 80 
 
 Brook V. Evans, 29 L. J. Ch. 616 ; 6 Jiir. N. S. 1025 ; 8 W. R. 688 
 
 249, 436 
 
 V. Rawl, 4 Ex. 521 ; 19 L. J. Ex. 114 . . . . 141, 143 
 
 V. Wise, Cro. Eliz. 878 63 
 
 Brooke v. A\Tillon, 42 L. J. C. P. 126 274 
 
 V. Clarke, Cro. Eliz. 328 ; 1 Yin. Abr. 464 .... 68 
 
 V. Montague (Sir Henry), Cro. Jac. 90 190 
 
 Brookes v. Ticliborne, 5 Ex. 929 ; 20 L. J. Ex. 69 ; 14 Jur. 1122 . . 533 
 Brooks V. Blanshard, 1 Cr. & M. 779 ; 3 Tyr. 844 . 216, 218, 238, 286 
 
 r. Israel, 4 Q. B. D. 98 ; 48 L. J. Q. B. 161 ; 27 W. R. 247 ; 
 
 39 L. T. 608 336 
 
 Broome v. Gosden, 1 C. B. 728 .. . 101, 102, 129, 539, 540, 558 
 Brown, Ex parte, 5 B. & S. 280 ; 33 L. J. Q. B. 193 ; 12 W. R. 821 ; 
 
 10 L. T. 453 425, 426 
 
 „. Crcome, 2 Stark. 297 . . . . 226, 241, 275, 283, 542 
 
 r. Hirley, 5 Up. Can. Q. B. Rep. (Old S.), 734 . . . . 458 
 
 V. Lane'or Loav, Cro. Jac. 443 ; 1 Roll. Abr. 79 . . 131, 542 
 
 ■ V. ]\hmay, 4 D. & R. 830 525 
 
 r. Smith, 13 C. B. 596 ; 22 L. J. C. P. 151 ; 1 C. L. R. 4 ; 17 
 
 Jur. 807 78, 291 
 
 V. Wootton, Cro. Jac. 73 ; Yelv. 67 ; Moo. 762 . . . . 457 
 
 Bruce r. Xicolopulo, 11 Ex. 133 ; 24 L. J. Ex. 324 . . . . 536 
 Brunkard v. Segar, Cro. Jac. 427 ; Hutt. 13 ; 1 Vin. Abr. 427 . 61, 82 
 Brunswick (Duke of) v. Harmer, 14 Q. B. 185 ; 19 L. J. Q. B. 20 ; 
 
 14 Jur. 110 ; 3 C. & K. 10 . 160, 168, 230, 232, 293, 456, 532, 
 
 539, 592 
 
 Bruton v. Downes, 1 F. & F. 668 24, 193 
 
 Bryant, In re, 4 Ch. D. 98 ; 25 AV. R. 230 ; 35 L. T. 489 . . . 432 
 
 -^ — V. Loxton, 11 Moore, 344 67, 80 
 
 Buchanan r. Taylor, W. N. 1876, p. 73 ; Bilt. p. 131 ; 20 Sol. J. 298 ; 
 
 60 L. T. Notes, 268 508 
 
 Buckingham v. Murray, 2 C. & P. 46 471 
 
 Buckley r. Wood, 4 Rep. 14 ; Cro. Eliz. 230 . . . 192,193,24.5 
 Buckton V. Higgs, 4 Ex. D. 174 ; 27 W. R. 803 ; 40 L. T. 755 . . 341 
 Buenos Ayres Gas Co. v. AVilde, 29 W. R. 43 ; 42 L. T. 657 . 429, 436 
 
 Bull r. Chapman, 8 Ex. 104 374 
 
 Burcher r. Orchard (1652), Stv. 349 ; 1 Roll. Abr. 781 . 351, 371, 560 
 
 Burder r. , 3 Curt. 827 ! 403 
 
 Bmdett v. Abbot, 5 Dow, H. L. 165 ; 14 East, 1 . . 154, 155, 157, 426, 
 
 435 
 
 V. Colman, 14 East, 163 423 
 
 Burford (Bailiff of) r. Lcnthall and others, 2 Atk. 551 .... .340
 
 TABLE OF CASES. Bur— Car 
 
 PAdE 
 
 Burges v. Bracher, 8 Mod. 238 ; 2 Ld. Eayiii. 1366 ; 1 Stra. 594 
 
 96, 558 
 Burgoine v. Taylor, 9 Ch. D. 1 ; 47 L. J. Ch. 542 ; 26 W. E. 568 ; 
 
 38 L. T. 4:38 530 
 
 Burke v. Rooney, 4 C. P. D. 226 ; 48 L. J. C. P. 601 ; 27 W. E. 915 . 522 
 
 Burnet V. Wells, 12 Mod. 420 79,137 
 
 Burnett v. Chetwood, cited in Southey v. Sherwood, 2 Mer. p. 441 . 14 
 
 Burton v. Plummer, 2 A. & E. 343 537 
 
 Bush V. Trowbridge Waterworks Co., L. R. 10 Ch. 459 ; 23 W. E. 
 
 641 ; 33 L. T. 137 477 
 
 Bustros V. Bustros, 49 L. J. Ch. 396 ; 28 W. E. 595 . . . . 357 
 V. White, (C. A.) 1 Q. B. D. 423 ; 45 L. J. Q. B. 642 ; 24 
 
 W. E. 721 ; 34 L. T. 835 517, 521 
 
 Butt V. Conant, 4 Moore, 195 ; 1 Brod. & Bing. 548 ; Gow, 84 428, 571 
 Button V. Heyward et ux., 8 Mod. 24 18, 55, 96 
 
 V. Woolwich Mutual Bg. Soc, 5 Q. B. D. 88 ; 49 L. J. Q. B. 
 
 249 ; 28 W. E. 136 ; 42 L. T. 54 569 
 
 Bvrchley's Case, 4 Eep. 16 75 
 
 Byrd v. Nunn, 7 Ch. I). 284 ; 47 L. J. Ch. 1 ; 26 W. E. 101 ; 37 L. T. 
 
 585 499 
 
 C^SAR V. Ciirsenj^, Cro. Eliz. 305 64, 71 
 
 Calder r. Halket, 3 Moo. P. C. C. 28 188 
 
 Caley v. Caley, 25 W. E. 528 352 
 
 Canifield v. Bird, 3 C. & K. 56 273 
 
 Campbell v. Spottiswoode, 3 B. & S. 769 ; 32 L. J. Q. B. 185 ; 9 Jur. 
 N. S. 1069 ; 11 W. E. 569 ; 8 L. T. 201 ; S. C. at Nisi 
 Prius, 3 F. & F. 421 . . . 22, 30, 35, 38, 39, 40, 49 
 
 ■ and another v. The Queen, 11 Q. B. 799 ; 17 L. J. M. C. 
 
 89 . . . 588 
 
 Canadian Oilworks Corporation v. Hav, 38 L. T. 549 ; W. N. 1878, 
 
 p. 107 ." 475 
 
 Cane v. Golding, Style, 169, 176 141, 143 
 
 Cannell v. Curtis, 2 Bing. N. C. 228 ; 2 Scott, 379 . . . 69, 530 
 Cans V. Eoberts, 1 Kel). 418 ; S. C. snh nom. Eoberts v. Herbert, Sid. 
 
 97 59, 85 
 
 Capel V. Powell and another, 17 C. B. N. S. 743 ; 34 L. J. C. P. 168 ; 
 
 10 Jur. N. S. 1255 ; 13 W. E. 159 ; 11 L. T. 421 . . . 351 
 
 and others v. Jones, 4 C. B. 259 ; 11 Jur. 396 . . 104, 115 
 
 Capes V. Brewer, 24 W. E. 40 460 
 
 Capital & Counties Bank v. Henty & Sons (in C. P. D.) 28 W. E. 
 
 490 ; 42 L. T. 314 . . . . 26, 103, 116, 228, 236, 555 
 
 (C. A.), 5 C. P. D. 514 ; 49 L. J. C. P. 830 ; 28 W. E. 851 ; 43 
 
 L. T. 651 . . . . 26, 103, 113, 116, 228, 236, 540, 555 
 Carew v. Davies, 5 E. & B. 709 ; 25 L. J. Q. B. 165 . . . .505 
 Carmichael v. Waterford & Limerick Ey. Co., 13 Ir. L. E. 313 . 270, 297 
 
 Carn v. Osgood, 1 Lev. 280 71 
 
 Carpenter v. Tarrant, Cas. Temp. Hardwicke, 339 . . . . 58 
 
 Carr v. Duckett, 5 H. & N. 783 ; 29 L. J. Ex. 468 . . 142, 487, 639 
 
 (Sir John) v. Hood, 1 Camp. 355 n. . . . . . 37, 48 
 
 V. Jones, 3 Smith, 491 ; S. C. sub nom. Stiles v. Nokes, 7 East, 
 
 493 .. . 24, 46, 176, 255 
 
 Carrol v. Bird, 3 Es]). 201 201 
 
 V. Falkiner, Kerlerd & Box Dig. of Victoria Cases, 216 . , 32V 
 
 Carslake v. Mapledoram, 2 T. E. 473 63 
 
 XXV
 
 Car— Chr. TABLE OF CASES. 
 
 PAGE 
 
 Carter r. Jcmes, G C. & P. 64 ; 1 M. & R. 281 530 
 
 r. Leeds Daily News Co. & Jackson, W. N. 1876, p. 11 ; Bitt. 
 
 91 ; 1 Charley, 101 ; 20 Sol. J. 218 ; 60 L. T. Notes, 196 
 
 511, 514, 515, 620 
 
 V. Stubbs (C. K.\ 50 L. J. C. P. 4 ; 29 W. R. 132 ; W. N. 1880, 
 
 p. 183 522 
 
 Cartwrigbt x\ Wright, 5 B. & Aid. 615 471 
 
 Casey v. Arnott, 2 C. P. D. 24 ; 46 L. J. C. P. 3 ; 25 AV. R. 46 ; 35 
 
 L. T. 424 148, 357 
 
 Cashin v. Cradock, 2 Ch. D. 140 ; 34 L. T. 52 ; 25 W. E. 4 ; 3 Ch. D. 
 
 376 ; 25 W. R. 4 ; 35 L. T. 452 499, 516 
 
 Castro's Case, L. R. 9 Q. B. 219 ; 12 Cox, C. C. 358 . . 430, 433 
 
 Catling V. King, 5 Ch. D. 660 ; 46 L. J. Ch. 384 ; 25 W. R. 550 ; 36 
 
 L. T. 526 477 
 
 Catterall v. Kenyon, 3 Q. B. 310 372 
 
 Caulfield v. Whi'tworth, 16 W. R. 936 ; 18 L. T. 527 . 269, 274, 537, 542 
 Cawdrey v. Highley, al. Tythay al. Tetley, Cro. Ca. 270 ; Godb. 441 68,74 
 
 Ceeleyu Hoskms,Cro. Car. 509 56,60,123 
 
 Chadwick v. Herapath, 2 C. B. 885 ; 16 L. J. C. P. 104 ; 4 D. & L. 
 
 653 300, 497 
 
 Chalmers v. Payne, 2 C. M. & R. 156 ; 1 Gale, 69 ; 5 Tyr. 766 
 
 27, 251, 252, 253, 552 
 
 V. Shackell, 6 C. & P. 475 170, 172, 306 
 
 Chamberlain v. White or Willmore, Cro. Jac. 647 ; Palm. 313 . . 371 
 Chantler and wife v. Lindsey, 16 M. & W. 82 ; 16 L. J. Ex. 16 ; 4 
 
 D. & L. 339 491 
 
 Chapman, Ex imrte, 4 A. & E. 773 441 
 
 V. Lamphire, 3 Mod. 155 79 
 
 V. Midland Ry. Co., 5 Q. B. D. 167 ; 28 W. R. 413 . . 342 
 
 (C. A.) 5 Q. B. D. 431 ; 49 L. J. Q. B. 
 449 ; 28 W. R. 592 ; 42 L. T. 612 . 343 
 
 Charges (Sir Thomas) v. Rone, 3 Lev. 30 236 
 
 Charlter v. Barret, Peake, 32 273 
 
 Charlton v. Watton, 6 C. & P. 385 176, 261, 302 
 
 Charlton's (Lechmere) Case, 2 My. & Cr. 316 . . . . 430, 434 
 
 Charnel's Case, Cro. Eliz. 279 \ 62 
 
 Charter v. Peter, Cro. Eliz. 602 121 
 
 Chatfield v. Sedgwick, 4 C. P. D. 459 ; 27 W. R. 790 ; 41 L. T. 438 . 342 
 Cheese v. Lovejoy, (C. A.) 2 P. D. 161 ; 46 L. J. P. D. & A. 67 ; 25 
 
 W. R. 453 ; 37 L. T. 294 551 
 
 V. Scales, 10 M. & W. 488 ; 12 L. J. Ex. 13 ; 6 Jur. 958 
 
 22, 29, 283 
 Cheltenham & Swansea Wagon Company {In re), L. R. 8 Ecp 580 ; 
 
 38L. J. Ch. 330; 17 W. R. 463; 20 L. T. 169 . . . . 429 
 Chennell, In re, (C. A.^ 8 Ch. D. 492 ; 47 L. J. Ch. 583 ; 26 W. R. 
 
 595 ; 38 L. T. 494 564 
 
 Chester v. Wortley, 17 C. B. 410 ; 25 L. J. C. P. 117 . . . . 504 
 
 Chesterfield Colliery Co. v. Black, 24 W. R. 783 ; W. N. 1876, p. 204 515 
 
 Child v. Affleck and wife, 4 M. & R. 338 ; 9 B. & C. 403 . : . 201 
 
 Chillingworth v. Griml:)le, TimcR, Nov. 7th, 1877 .... 269 
 Chorlton v. Dickie, 13 Ch. D. 160 ; 40 L. J. Ch. 40 ; 28 W. R. 228 ; 
 
 41 L. T. 469 529 
 
 Christie v. Christie, L. R. 8 Ch. 499 ; 42 L. J. Ch. 544 ; 21 AY. R. 
 
 493 ; 28 L. T. 607 ; . 192 
 
 V. Powell, Peake, 4 109 
 
 xxvi
 
 TABLE OF CASES. Chu— Col. 
 
 PAGE 
 
 Chubb V. Flannagan, 6 C. & P. 431 160, 387 
 
 V. Westley, 6 C. & P. 436 273, 276 
 
 Churcli V. Earnett, L. R. 6 C. P. 116 ; 40 L. J. C. P. 138 . . . 528 
 
 V. Peny, 36 L. T. 513 . . . . . . 512, 515 
 
 Churchill (Lord) v. Hunt, 1 Chit. 480 ; 2 B. & Aid. 685 . 23, 176, 537 
 
 Clare v. Blakesley and others, 8 Dowl. 835 432 
 
 Clark V. Chambers, 3 Q. B. D. 327 ; 47 L. J. Q. B. 427 ; 26 W. R. 
 
 613 ; 38 L. T. 454 322 
 
 V. Freeman, 11 Beav. 112 ; 17 L. J. Ch. 142 ; 12 Jur. 149 . 14, 
 
 16, 29, 34, 79 
 
 V. Molyneux, 3 Q. B. D. 237 ; 47 L. J. Q. B. 230 ; 26 W. R. 104 ; 
 
 36 L. T. 466 ; 37 L. T. 694 ; 14 Cox, C. C. 10 
 
 142, 214, 219, 266, 269, 274, 278, 280, 472, 541 
 
 V. Newsam, 1 Ex. 131 270, 297 
 
 Clarke v. Cookson, 2 Ch. D. 746 ; 45 L. J. Ch. 752 ; 24 W. R. 535 ; 
 
 34 L. T. 646 454 
 
 V. Morgan, 38 L. T. 354 315, 330 
 
 V. Taylor, 3 Scott, 95 ; 2 Bing. N. C. 654 ; 2 Hodges, 65 173, 176 
 
 Clarke's Case, de Dorchester, 2 Roll. Rep. 136 . . 56, 102, 123 
 
 Clarkson v. Lawson, 6 Bing. 266 ; 3 M. & P 605 ; 6 Bing. 587 ; 4 M. 
 
 & P. 356 30, 173 
 
 Clay V. Eoberts, 9 Jur. N. S. 580 ; 11 W. E. 649 ; 8 L. T. 397 26, 29, 
 
 76, 477, 497 
 V. Yates, 1 H. k N. 73 ; 25 L. J. Ex. 237 ; 4 W. E. 557 ; 27 L. 
 
 T. Old S. 126 374 
 
 Cleaver v. Sarraude, 1 Camp. 268 217 
 
 Clegg V. LafFer, 3 M. k Scott, 727 ; 10 Bing. 250 . . 103, 125, 154 
 Clement v. Chivis, 9 B. & C. 172 ; 4 M. & R. 127 22 
 
 V. Fisher, 7 B. & C. 459 ; 1 M. & R. 281 ... . 128 
 
 V. Lewis, 7 Moore, 200 ; 3 Br. & Bing. 297 ; 3 B. & Aid. 
 
 702 29, 99, 172, 256, 291, 486 
 
 Clerk V. Dyer, 8 Mod. 290 124 
 
 Clifton V. Wells, 12 Mod. 634 63 
 
 Clinton v. Henderson, 13 Jr. C. L. R. App. 43 
 
 Clover V. Roydon, L. R. 17 Ec[. 190 ; 43 L. J. Ch. 665 : 22 W. R. 
 
 254 ; 29 L. T. 639 15 
 
 Clutterbuck v. Chaffers, 1 Stark. 471 153, 383, 580 
 
 Cobham v. Dalton, L. R. 10 Ch. App. 655 ; 44 L. J. Ch. 702 ; 23 W. 
 
 R. 865 432 
 
 Cochrane, Ex parte, in re Mead, L. R. 20 Et^. 282 ; 44 L. J. Bkcy. 87 ; 
 
 23 W. R. 726 ; 32 L. T. 508 431 
 
 Cockaine v. Hopkins, 2 Lev. 214 61, 82, 125 
 
 Cockaine's (Lady) Case, Sir Thos. Cockaine and wife v. Witnam, Cro. 
 
 Eliz. 49 56 
 
 Cockayne v. Hodgkisson, 5 C. & P. 543 209, 217 
 
 Colburn v. Patmore, 1 C. M. & R. 73 ; 4 Tyr. 677 . 157, 294, 372, 374 
 
 Cole V. Firth, 4 Ex. D. 301 ; 40 L. T. 857 342 
 
 Coleman v. West Hartlepool Harbour and Ry. Co., 8 W. R. 734 ; 2 L. 
 
 T. 766 256, 429, 436 
 
 Rt ux. V. Harcourt, 1 Lev. 140 348, 350 
 
 Coles i;. Haveland, Cro. Eliz. 250 ; Hob. 12 Ill 
 
 Collette V. Goode, 7 Ch. D. 842 ; 47 L. J. Ch. 370 ; 37 L. T. 504 . . 499 
 Collins V. Carnegie, 3 N. & M. 703 ; 1 A. & E. 695 . . 69, 76, 81, 531 
 
 V. Vestry of Paddington (C. A.) 5 Q. B. D. 368 ; 49 L. J. Q. B. 
 
 264 ; 28 W. R. 588 ; 42 L. T. 573 563 
 
 xxvii
 
 Col-Cre. TABLE OF CASES. 
 
 PAGE 
 
 Collins V. Welcli, 5 C. P. D. 27 ; 49 L. J. C. P. 260 ; 28 W. E. 208 ; 
 
 41 L. T. 785 337 
 
 V. Yates and another, 27 L. J. Ex. 150 517 
 
 Colman v. Godwin, 3 Dougl. 90 ; 2 B. & C. 285 n. . . . 56, 121 
 Colonial Assnrance Co. Limited v. Prosser, W. N. 1876, p. 55 ; Bitt. 
 
 122 ; 20 Sol. J. 281 ; 60 L. T. Notes, 250 496 
 
 Combe v. Edwards, 3 P. D. 103 431 
 
 Commonwealth, The, v. Kneeland, Thacher's C. C. 346 . . . 159 
 
 Conesby's Case, Year Book, 9 Hen. VII. pp. 7, 8 ; 1 Poll. Abr. 
 
 108 . _. . . . ^ 149 
 
 ( 'onnors -y. Justice, 13 Ir. C. L. R. 451 77 
 
 Cook V. Cook, 100 Mass. 194 317 
 
 V. Dey, 2 Cli. D. 218 ; 45 L. J. Cli. 611 ; 24 W. R. 362 . . 460 
 
 . r. Field, 3 Esp. 133 178, 291, 319 
 
 V. Ward, 6 Bing. 409 ; 4 M. & P. 99 .... 6, 540, 625 
 
 V. Wingtield, 1 Str. 555 59, 85 
 
 and another v. Batchellor, 3 Bos. & Pull. 150 . . . 81, 367 
 
 Cooker. Cox, 3 M. &S. 110 470 
 
 y. Hughes, P. & M. 112 22, 98, 302, 535 
 
 ■ V. Oceanic Steam Co., W. N. 1875, p. 220 ; Bitt. 33 ; 20 Sol. 
 
 J. 80 ; 60 L. T. Notes, 68 501 
 
 and another v. Wildes, 5 El. & Bl. 328 ; 24 L. J. Q. B. 367 ; 
 
 1 Jur. N. S. 610 ; 3 C. L. R. 1090 .... 228, 269, 281 
 Cooper v. Hawkswell, 2 Mod. 58 126 
 
 V. Lawson, 1 P. & D. 15 ; 8 A. & E. 746 ; 1 W. AV. & H. 601 ; 
 
 2 Jur. 919 40,171,248,256 
 
 V. Smith, Cro. Jac. 423 ; 1 Roll. Abr. 77 121 
 
 Corcoran v. Corcoran, 7 Ir. C. L. R. 272 311 
 
 Cornwall v. Richardson, R. & M. 305 275, 298 
 
 Cosgrave v. Trade Auxiliary Co., Ir. R. 8 C. L. 349 . . . 249, 483 
 
 Cotes V. Ketle, Cro. Jac. 204 67, 80 
 
 Counsel v. Garvie, Ir. R. 5 C. L. 74 566 
 
 Cowan V. Milbourn, L. R. 2 Ex. 330 ; 36 L. J. Ex. 124 ; 15 W. R. 750 ; 
 
 16 L. T. 290 374, 399 
 
 Coward v. Wellington, 7 C. & P. 531 311, 349 
 
 Cowlesu Potts, 34 L. J. Q. B. 247 ; 11 Jur. N. S. 946; 13 W. R. 
 
 858 206 
 
 Cox V. Cooper, 12 W. R. 75 ; 9 L. T. 329 . . . .25, 100, 112 
 
 — V. Feeney, 4 F. & F. 13 41, 47 
 
 — V. Humphrey, Cro. Eliz. 889 59, 96 
 
 — V. Lee, L. R. 4 Ex. 284 ; 38 L. J. Ex. 219 . . . . 22, 23 
 Coxhead v. Richards, 2 C. B. 569 ; 15 L. J. C. P. 278 ; 10 Jur. 984 
 
 29, 205, 214, 215, 218 
 Cracknall v. Janson, 11 Ch. D. 1 ; 27 AV. R. 851 ; 40 L. T. 640 . . 340 
 Craig V. Phillips, (C. A.) 3 Ch. D. 249 ; 47 L. J. Ch. 239 ; 26 W. R. 
 
 293 ; 37 L. T. 772 563 
 
 Crauden v. Walden, 3 Lev. 17 . . . . . . • • .73 
 
 Craven v. Smith, L. R. 4 Ex. 146 ; 38 L. J. Ex. 90 ; 17 W. R. 710 ; 
 
 20 L. T. 400 334, 337, 464 
 
 Crawfoot v. Dale, 1 Ventr. 263 ; 3 Salk. 327 80 
 
 Crawford %\ Middleton, 1 Lev. 82 163, 265 
 
 Crawford's Case, 13 Q. B. 613 ; 18 L. J. Q. B. 225 ; 13 Jur. 955 427, 438 
 Creen v. Wright, 2 C. P. D. 354 ; 46 L. J. C. P. 427 ; 25 W. R. 502 ; 
 
 36 L. T. 355 338, 560 
 
 Creevy v. Carr, 7 C. & P. 64 159, 309, 458
 
 TABLE OF CASES. Cre— DaW. 
 
 PAGE 
 
 Crekrliton v. Finlay, Arm. Mac. & Ogle, 385 303 
 
 CrisJ i;. Gill, 29 L. T. Old S. 82 79,80,227,236 
 
 Croford V. Blisse, 2 Bula. 150 126 
 
 Croft V. Stevens, 7 H. & N. 570 ; 31 L. J. Exch. 143 ; 10 W. R. 272 ; 
 
 5 L. T. 683 237 
 
 (Sir Herbert) v. Brown, 3 Buls. 167 55, 124 
 
 Cromwell's (Lord) Case, 4 ReiJ. 13 108, 476 
 
 Cropp V. Tilney, 3 Salk. 226 9, 21 
 
 Crowe V. Barnicot, 37 L. T. 68 495 
 
 Cucks V. Starre, Cro. Car. 285 73 
 
 Cuddington v. Wilkins, Hobart, 67, 81 ; 2 Hawk. P. C. c. 37, s. 48 
 
 ° 58, 497 
 
 Curry v. Walter, 1 B. & P. 525 ; 1 Esp. 456 244 
 
 Curtis V. Curtis, 3 M. & Scott, 819 ; 4 M. & Scott, 337 ; 10 Bing. 
 
 447 55 
 
 V. Mussey, 6 Gray (Mass.) 261 362 
 
 Dacy v. Clinch, Sid. 53 59, 62, 119 
 
 Daines and another v. Hartley, 3 Ex. 200 ; 18 L. J. Ex. 81 ; 12 Jur. 
 
 1093 111,538 
 
 Dale, Ex parte, 2 C. L. R. 870 382 
 
 Kc parte, 43 L. T. 534 448 
 
 Dancaster v. Hewson, 2 M. & R. 176 193, 537 
 
 Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J. Ex. 227 ; 2 Jur. N. S. 497 
 
 99, 272, 297, 302, 551 
 Davey v. Pemberton, 11 C. B. N. S. 628 ; 8 Jur. N. S. 891 . 337, 521 
 
 Davidson v. Gray, 5 Ex. D. 189, n. ; 40 L. T. 192 .. . 339, 342 
 
 (C. A.) 42 L. T. 834 339, 342 
 
 Davies v. Snead, L. R. 5 Q. B. 608; 39 L. J. Q. B. 202 ; 18 W. R. Dig. 
 
 33 ; 23 L. T. 609 215, 219 
 
 and others v. Felix and others, (C. A.) 4 Ex. D. 32 ; 48 L. J. 
 
 Ex. 3 ; 27 W. R. 108 ; 39 L. T. 322 555 
 
 and wife v. Solomon, L. R. 7 Q. B. 112 ; 41 L. J. Q. B. 10 ; 20 
 
 W. R. 167 ; 25 L. T. 799 311, 316, 324 
 
 Davis V. Cutbush and others, 1 F. & F. 487 . . 242, 285, 302, 304 
 
 , V Davis, 13 Ch. D. 861 ; 48 L. J. Ch. 40 ; 28 W. R. 345 . . 550 
 
 V. Duncan, L. R. 9 C. P. 396 ; 43 L. J. C. P. 185 ; 22 W. R. 
 
 575 ; 30 L. T. 464 52, 450 
 
 . V. Gardiner,- 4 Rep. 16 ; 2 Salk. 694 ; 1 Roll. Abr. 38 (Ann 
 
 Davis's Case) 58, 310, 326 
 
 — V. Garland, 1 Q. B. D. 250 ; 45 L. J. Q. B. 137 ; 24 W. R. 252 ; 
 
 33 L. T. 727 459 
 
 V. Gray, 30 L. T. 418 507 
 
 V. Lewis, 7 T. R. 17 65, 79, 126, 163, 165 
 
 V. Miller et ux., 2 Str. 1169 61, 80, 83 
 
 V. Reeves, 5 Ir. C. L. R. 79 211 
 
 V. Williams, 13 Ch. D. 550 ; 28 W. R. 223 . . . .516 
 
 Davison v. Duncan, 7 El. & Bl. 229 ; 26 L. J. Q. B. 104 ; 3 Jur. N. S. 
 613 ; 5 W. R. 253 ; 28 L. T. Old S. 265 
 
 165, 175, 186, 236, 259, 261, 262, 283 
 Daw V. Eley, L. R. 7 En. 49 ; 38 L. J. Ch. 113 ; 17 W. R. 245 
 
 44, 430, 436 
 Dawes v. Boltun or Boughton, Cro. Eliz. 888 ; 1 Roll. Abr. 68 . .59 
 Dawkins v. Paulet (Lord), L. R. 5 Q. B. 94 ; 39 L. J. Q. B. 53 ; 18 W. 
 
 R. 336 ; 21 L. T. 584 194,195,199,484,497 
 
 xxix
 
 Daw— Dob. TABLE OF CASES. 
 
 PAGE 
 
 Dawkius r. renrhyn (Lord), (C. A.) 6 Cli. D. 318 ; 26 AY. R. 6 ; 37 L. 
 
 T. 80 478 
 
 (H. L.) 4 App. Cas. 51 ; 48 L. J. Ch. 
 304 ; 27 W. R. 173 ; 39 L. T. 583 . 477, 478 
 
 V. Rokeby (Lord), L. R. 8 Q. B. 255 ; 42 L. J. Q. B. 63 ; 21 
 
 W. R. 544 ; 4 F. & F. 806 ; 28 L. T. 134 
 
 193, 194, 195, 196, 536 
 (H. L.) L. R. 7 H. L. 744 ; 45 L. J. Q. B. 8 ; 
 23 W. R. 931 ; 33 L. T. 196 . . 193, 194, 536 
 
 Day V. Bream, 2 M. & Rob. 54 153, 360, 384, 547 
 
 V. Brownri-g, 10 Ch. D. 307 ; 48 L. J. Cli. 173 ; 27 W. R. 217 ; 
 
 39 L. T. 226, 553 15 
 
 V. Buller, 3 Wils. 59 . . 75 
 
 V. Robinson, 1 A. & E. 554 ; 4 X. & M. 884 . . 104, 109, 295 
 
 Dean's Case, Cro. Eliz. 689 444 
 
 De Cosse Brissac v. Rathbone, G H. & K. 301 ; 30 L. J. Ex. 238 . 439 
 
 De Crespiguy v. Wellesley, 5 Bing. 392 ; 2 M. & P. 695 
 
 157, 163, 164, 174, 262 
 Defries v. Davis, 7 C. & P. 112 ; 3 Dowl. 629 . . . . 273, 353 
 
 Delacroix v. Tlievenot, 2 Stark. 63 151 
 
 De La Grange v. McAndrew, 4 Q. B. D. 210 ; 48 L. J. Q. B. 315 ; 27 
 
 W. R. 417 . . 467 
 
 Delany v. Jones, 4 Esp. 191 55, 226, 241, 283 
 
 Delegal v. Highley, 5 Scott, 154 ; 3 Bing. X. C. 950 ; 8 C. & P. 444 ; 
 
 3 Hodges, 158 190, 276, 293, 319 
 
 Dengate aiid wife v. Gardiner, 4 M. & W. 5 ; 2 Jiir. 470 . . 319, 325 
 
 Derry v. Handler, 16 L. T. 263 168, 333 
 
 Desilla v. Schunck & Co. and Fels & Co., W. X. 1880, p. 196 . . 458 
 
 Deverill v. Hulbert (not reported) 108 
 
 Dexter v. Spear, 4 Mason, 115 387 
 
 Dibdin v. Swan and Bostock, 1 Esp. 28 50 
 
 Dicas V. Lord Brougham, 6 C. & P. 249 ; 1 M. & R. 309 . . . 189 
 
 V. Lawson, cited 5 Tjtw. 766 ; 2 C. M. & R. 156 . . ^ . 253 
 
 Dickeson v. HilUard and another, L. R. 9 Exch. 79 ; 43 L. J. Ex. 37 ; 
 
 22 W. R. 372 ; 30 L. T. 196 212 
 
 Dickinson v. Barber, 9 Tvng. Mass. 218 354 
 
 Dicks V. Brooks, (iuterloc.), (C. A.) 13 Ch. D. 652 ; 28 W. R. 525 . 564 
 (C. A.) 15 Ch. D. 22 ; 49 L. J. Ch. 812 ; 29 W. R. 87 ; 
 
 40 L. T. 710 ; 43 L. T. 71 144 
 
 Dickson v. Combermere and others, 3 F. & F. 527 196 
 
 V. Wilton (The Earl oQ, 1 F. & F. 419 . . . 196, 236, 268 
 
 Dig1:)v V. Thompson and another, 1 X. & M. 485 ; 4 B. & Ad. 821 . 25 
 Dill r. Murphv and another, 1 Moore P. C. C. N. S. 487 . . . 425 
 Disney v. Longbourne, 2 Ch. D.704; 45 L. J. Ch. 532; 24 W. R. 663; 
 
 35 L. T. 301 501 
 
 Dixon V. Bell, 5 Maule & S. 19S 352 
 
 V. Enoch, L. R. 13 Eq. 394 : 41 L. J. Ch. 231 ; 20 W. R. 359 ; 26 
 
 L. T. 127 . . .' 514, 532 
 
 V. Holden, L. R. 7 Eq. 488 ; 17 W. R. 482 ; 20 L. T. 357 
 
 14, 15, 16, 17 
 
 V. Parsons, 1 F. & F. 24 201 
 
 V. Smith, 5 H. & X. 450 ; 29 L. J. Ex. 125 
 
 76, 167, 218, 313, 315, 316, 330, 543 
 Dobedeu. Fisher, Tmes of July 29th, 1880 .... 306,494 
 Dobson r. Thornistone, 3 Mod. 112 T9 
 
 XXX
 
 TABLE OF CASES. 
 
 Dod— Egr. 
 
 530 
 
 41 L. T. 258 
 
 509 
 
 ; 23 W. R. 7 
 
 ; 26 AV. R. 98 
 36 L. J. P. C. 37 
 
 I'AOE 
 
 66, 72 
 534 
 533 
 164 
 561 
 
 71 
 136 
 
 55 
 
 196 
 
 83 
 382 
 354 
 439 
 460 
 192 
 
 . 425 
 5 Scott, 40 ; 3 Hodges, 154 
 
 66, 74, 75, 293, 311, 541 
 866 ; 46 L. J. Ch. 105 ; 25 W. 
 431,457 
 
 1 Roll. Abr. 58 . . . .72, 73 
 
 2 Keb. 549 ; 1 Lev. 276 ; Sid. 424 79 
 8, 13, 22, 24, 374, 540 
 
 M. C. 50 ; Dears C. C. 64 ; 
 
 .... 405 
 Duncan v. Thwaites, 3 B. & C. 556 ; 5 D. & R. 447 244, 245, 246, 251, 486 
 Duncombe v. Daniell, 8 C. & P. 222 ; 2 Jur. 32 ; 1 W. W. & H. 101 • 
 
 236, 241, 302, 304 
 
 Dunman v. Bigg, 1 Camp. 269, n 235 
 
 Dunn V. Hall, i Carter, 345 (Indiana) ; 1 Smith, 288 . . . . 362 
 Dunne v. Anderson, 3 Bing. 88 ; 10 Moore, 407 ; R. & M. 287 . . 43 
 Dwver v. Esmonde, 2 L. E. Ir. 243 ; Ir. R. 11 C. L. 542, below 
 
 ^ 52, 168, 230 
 
 Dymond v. Croft, 3 Cli. D. 512 ; 45 L. J. Cli. 604 ; 24 W. R. 700 ; 
 
 35L.T. 27 462 
 
 Eaden and another v. Jacobs (C. A.), 3 Ex. D. 335 ; 47 L. J. Ex. 74; 
 
 26 W. R. 159 ; 37 L. T. 621 506 
 
 Eagleton v. Kingston, 8 Ves. 473 533 
 
 East V. Chapman, 1 M. & M. 46 ; 2 C. & P. 570 . . . 302, 304 
 
 Eastmead v. Witt, 18 C. B. 544 ; 25 L. J. C. P. 294 ; 2 Jur. N. S. 
 
 . 203, 226, 225 
 
 . 32, 51, 127 
 
 . . 56 
 
 22, 477 
 
 C. P. 115; 17 
 
 . 404 
 
 J. C. P. 
 
 55, 68, 76, 173 
 
 28, 170, 173 
 
 . 361 
 
 Dod V. Robinson, Al. 63 . 
 
 Doe d. Devines v. Wilson, 10 Moo. P. C. 502. 
 
 Mudd V. Suckermore, 5 A. & E. 703 . 
 
 Dole V. Lyon, 10 Johns (New York), 447 . 
 DoUman v. Jones, 12 Ch. D. 553 ; 27 W. R. 877 ; 
 Dolloway v. Turrell, 26 (Wend.) N. Y. 383 
 Dorchester (Marquess of) v. Proby, 1 Levinz, 148 
 Dorme's Case, Cro. Eliz. 62 .... 
 
 Doss V. Secretary of State for India, L. R. 19 Eq. 
 
 32 L. T. 294 
 
 Dovaston v. Payne, 2 Sra. L. C. 8th Ed. p. 142 . 
 Doveton, Ex faric, 26 L. T. 73 . . . 
 Dowling 'V. Browne (1854), 4 Ir. C. L. R. 265 . 
 Downie & Arrindell, Re, 3 Moore, P. C. C. 414 
 Doyle V. Kaufmann, 3 Q. B. D. 7 ; 47 L. J. Q. B. 2 
 . V. O'Doherty, Car.-& M. 418 
 
 and others v. Falconer, L. R. 1 P. C. 328 ; 
 
 15 W. R. 366 
 
 Doyley v. Roberts, 3 Bing. N. C. 835 
 
 Drake, Ex farh., In re Ware, 5 Ch. D. 
 R. 641 ; 36 L. T. 677 . 
 
 V. Drake, 1 Vin. Abr. 463 
 
 V. Hill, Sir T. Raym. 184 , 
 
 Du Best V. Beresford, 2 Camp. 511 
 Dugdale v. Regina, 1 E. & B. 425 ; 22 L. J 
 
 17 Jur. 546 
 
 1004 
 
 Eastwood V. Holmes, 1 F. & F. 347 . 
 
 Eaton V. Allen, 4 Rep. 16 ; Cro. Eliz. 684 . 
 
 v. Johns, 1 DowL (N. S.)602 . 
 
 Edmunds v. Greenwood, L. R. 4 C. P. 70 ; 38 L. J 
 
 W. R. 142 ; 19 L. T. 423 
 Edsall V. Russell, 4 M. & G. 1090 ; 5 Scott, N. R. 801 ; 
 
 4 ; 2 Dowl. (N. S.) 641 ; 6 Jur. 996 . 
 Edwards v. Bell and others, 1 Bing. 403 
 V. London & N. W. Ry. Co., L. R. 5 C. P. 449 
 
 12 L. 
 
 Egremont Burial Board v. Egremont Iron Ore Co. 
 L. J. Ch. 623 ; 28 W. R. 594 ; 42 L. T. 179 
 
 14 Ch. D. 158 ; 49 
 516, 
 
 517
 
 . . 431 
 
 . 501 
 
 . . 495 
 
 . 573 
 
 . . 510 
 
 . 292 
 
 . . 436 
 217, 
 
 . . 14 
 
 . 339 
 
 . . 549 
 393; 
 
 . 518 
 
 Elb— Fis. TABLE OF CASES. 
 
 tAGE 
 
 Elborow V. Allen, Cro. Jac. 642 140 
 
 Elliot V. Haliiiarack, 1 Mer. 303 
 
 Ellis r. Ambler, 25 W. E. 557 ; 36 L. T. 410 . 
 
 V. Mxmson (C. A.), 35 L. T. 585 ; W. N. 1876, p. 253 . 
 
 Ellissen, Ex parte, cited 5 Q. B. D., at p. 13 
 
 Elmer v. Creasy, 9 Ch. D. 69 
 
 Emblen v. Myers, 6 H. & N. 54 ; 30 L. J. Ex. 71 
 
 Emoud's Case, Dec. 7, 1829 ; Shaw, 229 .... 
 
 Emperor (The) of Austria v. Day and Kossuth, 3 De G. F. & J 
 
 239 ; 30 L. J. Ch. 690 ; 7 Jur. N. S. 639 ... 
 
 Empson v. Fairfax and another, 8 A. & E. 296 ; 3 N. & P. 385 
 
 England v. Boiuke, 3 Esp. 80 
 
 English V. Tottie, 1 Q. B. D. 141 ; 45 L. J. Q. B. 138 ; 21 W. R 
 
 33 L. T. 724 
 
 Entick r. Carrington, 11 St. Tr. 317 ; 19 How. St. Tr. 1029 . 152, 574 
 Etty V. WHson (C. A.), 3 Ex. D. 359 ; 47 L. J. Ex. 664 ; 39 L. T. 
 
 83 555 
 
 Evans v. Gwyn, 5 Q. B. 844 73 
 
 V. Harlow, 5 Q. B. 624 ; 13 L. J. Q. B. 120 ; D. & M. 507 ; 8 
 
 Jm-. 571 32, 33, 79, 145, 147 
 
 V. Harries, 1 H. & N. 251 ; 26 L. J. Ex. 31 . 291, 316, 319, 320, 330 
 
 V. Bees, 9 C. B. N. S. 391 ; 30 L. J. C. P. 16 . . . . 335 
 
 V. Walton, L. R. 2 C. P. 615 ; 15 W. R. 1062 . . . . 352 
 
 Fairman v. Ives, 1 D. & R. 252 ; 5 B. & Aid. 642 ; 1 Chit. 85 
 
 222, 224, 245, 287 
 Falkland (Lord) v. Phipps, 2 Comyns, 439 ; 1 Vin. Abr. 549 . . 136 
 
 Falkner v. Cooper, Carter, 55 130 
 
 Falvey v. Stanford, L. R. 10 Q. B. 54 ; 44 L. J. Q. B. 7 ; 23 W. B. 
 
 162 ; 31 L. T. 677 " . . . 292, 559 
 
 Farlev's (Mrs.) Case, 2 Ves. Sen. 520 429 
 
 Farrow v. Hague, 3 H. & C. 101 ; 33 L. J. Ex. 258 . . . . 569 
 
 Faund r. Wallace, 35 L. T. 361 557 
 
 Felkin v. Herbert, 33 L. J. Ch. 294 ; 12 W. R. 241, 332 ; 9 L. T. 635 ; 
 
 10 Jiu\ N. S. 62 430 
 
 Fellowes v. Hunter, 20 Up. Can. Q. B. 382 80 
 
 FeUs, In re, Ex parte, Andrews, 4 Ch. D. 509 ; 46 L. J. Bkcy. 23 ; 25 
 
 W. R. 382 ; 36 L. T. 38 431 
 
 Fenn v. Dixe, 1 Roll. Abr. 58 79 
 
 Fennell v. Tait, 1 C. M. & R. 814 526 
 
 Fenton v. Hampton, 11 Moore, P. C. C. 347 425 
 
 Fernandez, Ex parte, 6 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 . 435, 437 
 Field V. Gt. Northern Rv. Co. 3 Ex. D. 261 ; 26 W .R. 817 ; 39 L. T. 80 
 
 338, 560 
 
 Figgins V. Cogswell, 3 M. & S. 369 79, 81 
 
 Finden v. Westlake, M. & M. 461 . . . ~ . . 228, 277, 285 
 
 Finnerty v. Tipper, 2 Camp. 72 273, 296, 307 
 
 Fisher r. Atkinson, 1 Roll. Abr. 43 82 
 
 V. Clement, 10 B. & C. 472 ; 5 Man. & Ry. 730 . . . 264, 539 
 
 V. Hughes, 25 W. R. 528 522 
 
 V. Owen (C. A.), 8 Ch. D. 645 ; 47 L. J. Ch. 477, 681 ; 26 W. R. 
 
 417, 581 ; 38 L. T. 252, 577 . 505, 509, 510, 511, 512, 519 
 Fisher & Co. v. AppoUinaris Co., L. R. 10 Ch. App. 297 ; 44 L. J. Ch. 
 
 500 ; 23 W. R. 460 ; 32 L. T. 628 15
 
 TABLE OF CASES. Fit— Gar, 
 
 PAGB 
 
 Fitter v. Veal, 12 Mod. 542 ; B. N. P. 7 . . . . 295, 317, 320, 552 
 Fitzgerald V.Campbell, 18 Ir. J ur. 153 ; 15 L. T. 74 . . . 278,484 
 
 V. Villiers, 3 Moo. 236 ' . . . 463 
 
 Fitzgibbon v. Greer, I. R. 9 C. L. 294 508 
 
 Fleetwood v. Curl or Curley, Cro. Jac. 557 ; Hob. 268 . . 70, 11(», 131 
 
 Fleming v. Newton, 1 H. L. C. 363 14, 248, 436 
 
 Flint V. Pike, 6 D. (fe-R. 528 ; 4 B. & C. 473 ... 176, 253, 256 
 
 Flower's Case, Cro. Car. 211 68 
 
 Floyd r. Barker, 12 Rep. 24 188,189 
 
 Fonville v. Nease, Dudley, S. C. 303 151, 153 
 
 Forbes v. King, 2 L. J. Ex. 109 ; 1 Dowl. 672 . . . . 25, 114 
 
 Force v. Warren, 15 C. B. N. S. 806 231 
 
 Footman v. Dunn, 4 Camj). 211 193 
 
 Ford V. Primrose, 5 D. & R. 287 ' . . . 55 
 
 Fores v. Johnes, 4 Esp. 97 374 
 
 Forsdike and wife v. Stone, L. R. 3 C. P. 607 ; 37 L. J. C. P. 301 ; 16 
 
 W. R. 976 ; IS L. T. 722 292, 336, 559 
 
 Fortescue v. Fortescue, 24 W. R. 945 ; 34 L. T. 847 . . . .517 
 Foster v. Browning, Cro. Jac. 688 55, 119 
 
 I'. Pointer, 9 C. & P. 718 537 
 
 y. Roberts, W. N. 1877, p. 11 562 
 
 and others v. Lawson, 11 Moore, 360 ; 3 Bing. 452 . . 81, 367 
 
 Foulger v. Newcomb, L. R. 2 Ex. 327 ; 36 L. J. Ex. 169 ; 15 W. R. 
 
 1181 ; 16 L. T. 595 25, 67, 77, 115, 120, 474 
 
 Fountain i'. Boodle el lu., 3 Q. B. 5 ; 2 G. & D. 455 . . 274, 275, 298 
 
 V. Rogers, Cro. Eliz. 878 121 
 
 . . 71 
 
 . . 121 
 
 . 58 
 
 212, 221, 284 
 
 273, 287, 332 
 
 . . 154 
 
 . 55, 106 
 
 . . 115 
 
 Fowell V. Cowe, Roll. Abr. 56 
 
 Fowler v. Aston, Cro. Eliz. 268 ; 1 Roll. Abr. 43 . 
 
 V. Dowdney, 2 M. & Rob. 119 .... 
 
 and Avil'e v. Homer, 3 Camp. 294 
 
 Fowles V. Bowen, 3 Tiffany (30 N. Y. R.), 20 . 202, 270 
 Fox V. Broderick, 14 Ir. C. L. Rep. 453 . 
 Francis v. Roose, 3 M. & W. 191 ; 1 H. & H. 36 
 Franklyn v. Butler, Pasch. 11 Car. I., cited Carter, 214 
 
 Frav V. Blackburn, 3 B. & S. 576 189 
 
 V. Fray, 17 C. B. N. S. 603 ; 34 L. J. C. P. 45 ; 10 Jur. N. S. 
 
 1153 23, 94, 544 
 
 Frean v. Sargent, 2 H. & C. 293 ; 32 L. J. Ex. 281 ; 11 W. R. 808 ; 8 
 
 L. T. 467 338 
 
 Freethy v. Freetliy, 42 Barb. N. York, 641 347 
 
 Frescoe v. May, 2 F. & F. 123 157, 294, 457, 549 
 
 Friend v. London, Chatham, & Dover Ry. Co. (C. A.), 2 Ex. D. 437 ; 
 
 46 L. J. Ex. 696 ; 25 W. R. 735 ; 36 L. T. 739 . . . . 518 
 
 Fry V. Carne, 8 Mod. 283 56, 121 
 
 Fryer v. Gathercole, 4 Exch. 262 ; 18 L. J. Ex. 389 ; 13 Jur. 542 . 53J^ 
 
 V. Kinnersley, 15 C. B. N. S. 422 ; 33 L. J. C. P. 96 ; 10 Jur. 
 
 N. S. 441 ; 12 W. R. 155 ; 9 L. T. 415 . . 201, 239, 280 
 
 Fuller v. Fenner, 16 Barb. 333 ... . ... 313 
 
 Gainpord 11. Tuke, Cro. Jac. 536 58, 126 
 
 Gale V. Leckie, 2 Stark. 107 374 
 
 Gallwey v. Marshall, 9 Ex. 294 ; 23 L. J. Ex. 78 ; 2 C. L. R. 399 . 66, 72, 
 
 73, 83, 473 
 Gardiner v. Atwater, Say. 265 . . . . . 127, 165
 
 Gar— Gou. TABLE OF CASES. 
 
 PAGE 
 
 Gardner v. Irwin, 4 Ex. D. 49 ; 48 L. J. Ex. 223 ; 27 W. R. 442 ; 40 
 
 L. T. 357 517 
 
 X. Slade, 13 Q. B. 796 ; 18 L. J. Q. B. 334 ; 13 Jur. 826 . . 201 
 
 Garnett v. Bradley (C. A.), 2 Ex. D. 349 ; 46 L. J. Ex. 545 ; 25 W. R. 
 
 653 ; 39 L. T. 725 335, 468 
 
 (H. L.), 3 App. Gas. 944 ; 48 L. J. Ex. 1-86 ; 26 
 W. R. 698 ; 39 L. T. 261 . . . 335, 468 
 
 r. Ferrand, 6B. & C. 611 442,443 
 
 Garrels v. Alexander, 4 Esp. 37 533 
 
 Garret v. Taylor, Cro. Jac. 567 ; 1 Roll. ALr. 108 . . . 149, 359 
 Gascoigne e,t ux. v. Ambler, 2 Lord Raym. 1004 . . . . . 85 
 
 Gaskin v. Balls, 13 Ch. D. 324 ; 28 W. R. 552 15 
 
 Gathercole v. Miall, 15 ^1. & W. 319 ; 15 L. J. Ex. 179 ; 10 Jnr. 337 
 
 28, 47, 48, 242, 285, 298, 355 
 Gay V. LaLouchere, 4 Q. B. D. 206 ; 48 L. J. Q. B. 279 ; .27 W. R. 413 
 
 506, 509, olO, 512 
 
 Geary v. Physic, 5 B. & C. 238 7 
 
 Gee V. Pritchard, 2 Swan. 413 14 
 
 Gelen V. Hall, 2 H. & N. 379 188 
 
 George v. Goddard, 2 F. & F. 689 236 
 
 Gerard (Sir G.) v. Dickenson, 4 Rep. 18 ; Cro. Eliz. 197 . . . 143 
 
 Getting i'. Foss, 3 C. & P. 160 212 
 
 Gibbons v. London Financial Association, 4 C. P. D. 263 ; 48 L. J. 
 
 C. P. 514 ; 27 W. R. 619 499 
 
 Gillett V. Bullivant, 7 L. T. Old S. 490 168, 327, 332 
 
 Gilpin V. Fowler, 9 Ex. 615 ; 23 L. J. Ex. 152 ; 18 Jur. 293 
 
 242, 268, 280, 535 
 
 Glynn v. Houston, 1 Keen, 329 505 
 
 Godard v. Gray, L. R. 6 Q. B. 139 ; 40 L. J. Q. B. 62 ; 19 W. R. 348 ; 
 
 24 L. T. 89 ■ . 439 
 
 Goddard v. Thompson (C. A.), 47 L. J. Q. B. 382 ; 26 W. R. 362 ; 38 
 
 L. T. 166 560, 564 
 
 Goddart v. Haselfoot, 1 Roll. Abr. 54 ; 1 Vin. Abr. S. a. pi. 12 . .76 
 Godfrey v. OAven, Palm. 21 ; 3 Salk. 327 59 
 
 v. Tucker, 3 N. R. 20 477 
 
 Godson V. Home, 3 Moore, 223 ; 1 Br. & B. 7 . . . . 209, 265 
 Golding V. Wharton Saltworks Co., 1 Q. B. D. 374 ; 24 W. R. 423 ; 
 
 34 L. T. 474 499 
 
 Goldstein v. Foss, 1 M. & P. 402 ; 6 B. & C. 154 ; 2 Y. & J. 146 ; 9 
 
 D. & R. 197 ; 4 Bing. 489 ; 2 C. & P. 252 . . 25, 115, 120, 212 
 Gompertz v. Lev^^, 9 A. & E. 282 ; 1 P. & D. 214 ; 1 W.,W. & H. 728 ; 
 
 2 Jur. 1013 104 
 
 Goodale i'. Castle, Cro. Eliz. 554 61, 82 
 
 Goodbarne v. Fothergill, I71 re Harker, (C. A.) 10 Ch. D. 613 ; 27 
 
 W. R. 587 ; 40 L. T. 408 563 
 
 Goodburne v. Bowman, 9 Bmg. 532 27, 173, 486 
 
 r. (as to costs), 9 Bing. 667 .... 340 
 
 Goodtitle v. Bad title, 2 Bos. & P. 120 464 
 
 Goslin V. Corry, 7 M. & G. 342 ; 8 Scott, N. R. 21 . . 311, 317, 320 
 Gosset 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 .... 423, 435 
 
 Gostling V. Brooks, 2 F. & F. 76 78, 115 
 
 Gould V. Hulme, 3 C. & P. 625 191, 237 
 
 Gourlcv V. PlimsoU, L. R. 8 C. P. 362 ; 42 L. J. C. P. 121 ; 2nV. R. 
 
 683 ; 28 L. T. 598 486, 508 
 
 xxxiv
 
 TABLE OF CASES. 
 
 Gra— Hal. 
 
 Grant v. Banque Franco-Egyplieune (C. A.), 2 C. P. D. 430 ; 47 L. J. 
 
 C. P. 41 ; 26 W. E. G8 . . 
 
 (C. A.), 3 C. P. D. 202 ; 47 L. J. 
 
 C. P. 455 ; 26 W. R. 669 ; 38 
 L. T. 622 
 
 i). Gould, 2 H. Bl. 69 
 
 V. Holland, 49 L. J. Q. B. 800 ; 29 W. P. 32 ... . 
 
 V. Secretary of State for India, 2 C. P. D. 445 ; 25 W. R 
 
 37 L. T. 188 
 
 Grater v. Collard, 6 Dowl. 503 
 
 Grave's Case, Cro. Eliz. 289 . 
 
 Gray v. West ei ».,<;., L. R. 4 Q. B. 175 ; 9 B. & S. 156 ; 38 L. J. 
 
 78 ; 17 W. R. 497 ; 20 L. T. 221 .... 
 Greaves v. Keene, 4 Ex. D. 73 ; 27 W. R. 416 ; 40 L. T. 216 . 
 Green v. Button, 2 C. M. & R. 707 
 
 V. Chapman, 4 Bing. N. C. 92 ; 5 Scott, 340 
 
 0. ElQ;ie and anotiier, 5 Q. B. 99 
 
 V. Sevin, 13 Ch. D. 589 ; 41 L. T. 724 498 
 
 GreenEeld v. Reay, L. R. 10 Q. B. 217 ; 44 L. J. Q. B. 81 ; 21 W. R. 
 
 732 ; 31 L. T. 756 504 
 
 Greenfield's Case, Mar. 82 ; 1 Vin. Abr. 465 80 
 
 Greenwood v. Prick, Cro. Jac. 91 ; 1 Camp. 270 . . 6, 242, 265 
 
 Gregory v. The Queen, 15 Q. B. 957 ; 14 L. J. M. C. 82 ; 15 Jur. 74 ; 
 
 563 
 
 564 
 
 . . 195 
 
 . 556 
 
 848; 
 
 196, 257 
 
 . 295 
 
 . . 126 
 
 . Q. B. 
 
 . 334 
 
 . . 435 
 
 91, 149, 326 
 
 . . 50 
 
 . 434 
 
 5 Cox, C. C. 247 
 and another v. Williams, 1 C. & K. 568 
 
 575 
 292, 320, 552 
 
 Greville v. Chapman and others, 5 Q. B. 731 ; 13 L. J. Q. B. 172 ; D. 
 
 & M. 553 ; 8 Jur. 189 24 
 
 Griffiths v. Hardenburgh, 41 New York, 469 374 
 
 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 
 
 80, 114, 168, 231, 233, 452 
 
 Grimes v. Lovel, 12 Mod. 242 63 
 
 Grissell's Case, Aug. 1879 423 
 
 Groenvelt v. Burwell, 1 Ld. Raym. 454 ; 12 Mod. 388 . . .189 
 
 Grove d ux. v. Hart, (1752) B. N. P. 7 348, 350 
 
 Guerdon v. Winterstud, Cro. Eliz. 308 56 
 
 Gurney v. Longman, 13 Ves. 493 14 
 
 Gutsoie V. Mathers, 1 M. & W. 495 ; 2 Gale, 64 ; 5 Dowl. 69 ; 1 Twyr. 
 
 & Gr. 694 142, 470 
 
 Guy V. Gregory, 9 C. & P. 584 298, 325, 350 
 
 Gwynn v. S. E. Rail. Co., 18 L. T. 738 . . . .173, 253, 548 
 
 Haddon v. Lott, 15 C. B. 411 ; 24 L. J. C. P. 49 . 
 Haire v. Wilson, 4 M. & R. 605 ; 9 B. & C. 643 . 
 Hake v. Molton, Roll. Abr. 43 ... . 
 Hakewell v. Ingram, 2 C. L. R. 1397 . 
 Hall V. Hollander, 4 B. & C. 660 ; 7 D. & R. 133 . 
 
 V. L. & N. W. Ry. Co., 35 L. T. 848 . 
 
 V. Smith, 1 M. & S. 287 
 
 V. Weedon, 8 D. & R. 140 . 
 
 Hall's (Arthur) Case (1581) 
 
 Hallinan v. Price, 27 W. R. 490 ; 41 L. T. 627 . 
 Halsey v. Brotherhood, 15 Ch. D. 514 ; 49 L. J. Ch. 786 
 43 L. T. 366 
 
 29 W. R 
 
 139, 322, 326 
 23, 264, 265 
 . 125 
 24, 558 
 . 352 
 . 510 
 79,81 
 . 123 
 . 423 
 . 342 
 9; 
 . 144 
 
 c 2
 
 Ham— Har. TABLE OF CASES. 
 
 PAGE 
 
 Hamilton & Co. r. Jolmsou & Co., (C. A.) 5 Q. B. D. 263 ; 49 L. J. Q. 
 
 B. 155 ; 28 W. R. 879 ; 41 L. T. 461 55G 
 
 Hammersmith Skating Rink Co. v. Dublin Skating Rink Co., 10 Ir. 
 
 R. Eq. 235 15, 144 
 
 Hancockv. Guerin, 4Ex. D. 3 ; 27 W. R. 112 516 
 
 Hancocks v. Lablache, 3 C. P. D. 197 ; 47 L. J. C. P. 514 ; 26 W. R. 
 
 402 ; 38 L. T. 753 350 
 
 Hand v. Winton, 38 N. Y. 122 71 
 
 Hankinson v. Bilby, 16 M. & W. 442 ; 2 C. & K. 440 . 93, 94, 106, 
 
 107, 109, 548 
 Harding v. Greening, 1 Moore, 477 ; 8 Taunt. 42 ; 1 Holt, N. P., 531 361 
 
 Hardwick v. Chandler, 2 Str. 1138 75 
 
 Hargrave v. Le Breton, 4 Burr. 2422 .... 142, 144. 226, 264 
 Harker [In re), Goodbarne v. Fothergill, (G. A.) 10 Ch. D. 613 ; 27 W. 
 
 R. 587 ; 40 L. T. 408 563 
 
 Harle v. Catherall, 14 L. T. 801 40, 46, 236, 241, 
 
 453 
 Harman v. Delany, 2 Str. 898 ; 1 Barnard. 289, 438 ; Fitz. 121 . . 31, 
 
 33 79 145 
 Harnett v. Vise, (C.A.) 5 Ex. D. 307 ; 29 W. R. 7 . . 216, 307,' 336 
 
 Harper (Sir J.) v. Beamond, Cro. Jac. 56 . . . . . .70 
 
 Harris I). Dixon, Cro. Jac. 158 . . . . . . . . 56 ■ 
 
 V. Fleming, 13 Ch. D. 208 ; 49 L. J. Cli. 32 ; 28 W. R. 389 . 462 
 
 V. Petherick, (C. A.) 4 Q. B. D. Gil ; 48 L. J. Q. B. 521 ; 28 
 
 W. R. 11 ; 41 L. T. 146 338, 560 
 
 V. Thompson, 13 C. B. 333 .... 216, 218, 238, 270, 544 
 
 V. Warre, 4 C. P. D. 125 ; 48 L. J. C. P. 310; 27 W. R. 461 ; 40 
 
 L. T. 429 101, 424, 470 
 
 Harrison v. Bevingtou, 8 C. & P. 708 . . . . .78, 81, 367 
 
 t\ Bush, 5 El. & Bl. 344 ; 25 L. J. Q. B. 25 ; 1 Jur. N. S. 
 
 846 198, 222, 224, 287 
 
 25 L. J. Q. B. 99; 2 Jur. N. S. 90 . . . .' 339 
 
 V. King, 4 Price, 46 ; 7 Taunt. 431 ; 1 B. & Aid. 161 . 57, 125 
 
 V. Pearce, 1 F. & F. 567 ; 32 L. T. Old S. 298 ; 7 W. R. Dig. 
 
 C. L. 51 . . 157, 159, 294, 314, 319, 331, 362, 458, 549 
 ■ r. Stratton, 4 Esp. 217 57 
 
 r. Thornborough. 10 Mod. 196; Gilb. Cas. in Law & Eq. 114 
 
 79, 97, 125, 130 
 Hart r. Gumpach, L. R. 4 P. C. 439 ; 42 L. J. P. C. 25 ; 21 W. R. 
 
 365 ; 9 Moore, P. C. C. N. S. 241 194 
 
 and another v. Wall, 2 C. P. D. 146 ; 46 L. J. C. P. 227 ; 25 W. 
 
 R. 373 26, 34, 113, 141, 544, 641 
 
 Hartlepool Original Colliery Co. v. Gibb, 5 Ch. D. 713 ; 46 L. J, Ch. 
 
 311 ; 36 L. T. 433 495 
 
 Hartley v. Dilke, 35 L. T. 706 460 
 
 r. Herring, 8 T. R. 130 .... 72,310,311,316,320 
 
 ■ V. Hindmarsh, L. R. 1 C. P. 533 ; 35 L. J. M. C. 254 ; 14 W. 
 
 R. 862 ; 13 L. T. 795 ; 12 Jur. N. S. 502 . . .546 
 
 Hartsock v. Reddick, 6 Blacki". (Indiana) 255 193 
 
 Hartwellv. Veseyei ■!(.(•., 3 L. T. 275 238 
 
 Harvey v. French, 1 C. & M. 11 ; 2 M. & Scott, 591 ; 2 Tyr. 585 
 
 24, 99, 106 
 Harwood v. Astley, 1 N. R. 47 236 
 
 V. Green, 3 C. & P. 141 29, 215, 288 
 
 et ux. V. Hardwick et ux., 2 Keb. 387 . . . . 324, 348 
 
 xxxvi
 
 TABLE OF CASES. Has— Hoa. 
 
 PAGE 
 
 Hassell v. Capcot, 1 Vin. Abr. 395 ; 1 Roll. Al)r. 36 ... 59, 85 
 Hastie v. Hastie, (0. A.) 1 Ch. D. 562 ; 45 L. J. Ch. 288 ; 24 W. R. 
 
 564 ; 34 L. T. 13 564 
 
 Hawkesley r. Bradsliaw, (Q. B. D.), 5 Q. B. D. 22 ; 49 L. J. Q. B. 207 ; 
 
 28 AV. R. 167 ; 41 L. T. 653 . . 481, 492 
 (C. A.) 5 Q. B. D. 302 ; 49 L. J. Q. B. 333 ; 
 28 W. R. 557 ; 42 L. T. 285 
 
 301, 481, 488, 493 
 Hawley t). Reacle, W. N. 1876, p. 64; Bitt. 13U; 20Sol. J. 298; 60 
 
 L. T. Notes, 268 301, 340, 501 
 
 Haylock v. Sparke, 1 E. & B. 471 ; 22 L. .J. M. C. 67 . . . . 574 
 Haythorn v. Lawson, 3 C. & P. 196 . . . 32, 319, 324, 365, 367 
 
 Haywood v. Nayler, 1 Roll. Abr. 50 126 
 
 Head v. Briscoe d ux., 5 C. & P. 485 ; 2 L. J. C. P. 101 .. . 351 
 Hearne v. Stowell, 12 A. & E. 719 ; 11 L. J. Q. B. 25 ; 4 P. & D. 696 ; 
 
 6 Jur. 458 28, 127, 158, 2G0, 550, 559 
 
 Hedley v. Barlow, 4 F. & F. 224 43, 46, 545 
 
 Helsliam v. Blackwood, 11 C. B. Ill ; 20 L. J. C. P. 187 ; 15 Jur. 861 
 
 45, 170, 172, 485 
 Hemincj and wife v. Power, 10 M. & W. 564 . . . . 55, 62, 123 
 Hemmmqs v. Gasson, El. Bl. & El. 346 ; 27 L. .J. Q. B. 252 ; 4 Ji;r., 
 
 N. S. 834 . . . 104, 230, 277 
 
 Henderson r. Broomliead, 4 H. & N. 569 ; 28 L. J. Ex. 360 ; 5 Jur., 
 
 N. S. 1175 191, 193 
 
 Henwood v. Harrison, L. R. 7 C. P. 606 ; 41 L. J. C. P. 206 ; 20 W. 
 
 R. 1000 ; 26 L. T. 938 44,211 
 
 Heriot v. Stuart, 1 Esp. 437 30, 32, 49 
 
 Hewetson v. Whittington Life Insurance Society, W. X. 1875, p. 219 ; 
 
 Bitt. 27 ; 1 Charley, 101 ; 20 Sol. J. 79 ; 60 L. T. Notes, 67 . 502 
 Hext V. Yeoiuans, 4 Rep. 15 . . . . . . • .122 
 
 Hey V. Moorhouse and otliers, 6 Ring. N. C. 52 489 
 
 HeVmann v. The Queen, L. R. 8 Q. B. 105 ; 21 W. R. 357 ; 28 L. T. 
 
 ■'162 586 
 
 Hibbins v. Lee, 4 F. & F. 243 ; 11 L. T. 541 45 
 
 Hibbs V. Wilkinson, 1 F. & F. 608 52, 230 
 
 Hickinbotham v. Leach, 10 M. & W. 361 ; 2 Dowl. N. S. 270 
 
 111, 178, 485 
 Hicks' (Sir Baptist) Case, R. r. Garret, Hob. 215 ; Poph. 139 . 23, 383 
 Higginson v. Fhiherty, 4 Ir. C. L. R. 125 . . . . . . 190 
 
 Hishmore v. Earl and Countess of Harrington, 3 C. B. N. S. 142 . 64, 
 
 73, 558 
 Highton V. Treherne, 48 L. J. Ex. 167 ; 27 W. R. 245 ; 39 L. T. 411 
 
 560, 562, 563 
 HiU V. Campbell and Wife, L. R. 10 C. P. 222 ; 44 L. J. C. P. 97 ; 
 
 23 W. R. 336 ; 32 L. T. 59 519 
 
 Hill's Executors V. Metropolitan District Asylum, 49 L. J. Q. B. 668 ; 
 
 43 L. T. 462 ; W. N. 1880, p. 98 337, 565 
 
 Hilliard (Sir Christopher) v. Constable, Cro. Eliz. 306 ... 72 
 
 Hinrichsr. Berndcs, W. N. 1878, p. 11 16 
 
 Hirst V. Goodwin, 3 F. & F. 257 ^30 
 
 Hixe V. Hollingshed, Cro. Car. 261 85 
 
 Hoare, Ex pirie, 23 L. T. 83 382 
 
 Hoare v. Dickson, 7 C. B. 1(34 ; 18 L. J. C. P. 158 . . . . 545 
 Hoare v. Silverlock (No. 1, 1S48) ; 12 Q. B. 624 ; 17 L. J. Q. B. 306 ; 
 
 12 Jur. 695 22, 23, 106, 239, 539, 544 
 
 xxxvii
 
 Hoa— Hun. TABLE OF CASES. 
 
 PAGE 
 
 Iloare r. Silverlock (No. 2, 1850), 9 C. B. 20; 19 L. J. C. P. 215 
 
 244, 560 
 
 Hobbs V. Biyers, 2 L. E. Ir. 496 273 
 
 Hodgkins et ux. v. Corbet et ux., 1 Str. 545 .... 85, 131 
 
 Hodgson V. Scarlett, 1 B. & Aid. 232 190 
 
 Hoey i: Felton, 11 C. B. N. S. 142 ; 31 L. J. C. P. 105 . . . 322 
 
 Holland v. Stoner, Cro. Jac. 315 96 
 
 Hollingsbead's Case, Cro. Car. 229 85 
 
 Hollingworth v. Brodrick, 4 A. & E. 646 ; 6 X. & M. 240 ; 1 H. & 
 
 AV. 691 466 
 
 Hollis (Sir John) v. Briscow et ux., Cro. Jac. 58 71 
 
 Holmes r. Catesby, 1 Taunt. 543 77,485 
 
 V. Mountstephen, L. R. 10 C. P. 474 ; 33 L. T. 351 . . 566 
 
 Holt, Iv re, 10 Ch. D. 168 ; 27 W. R. 485 ; 40 L. T. 207 . . . 431 
 
 (Sir Thomas) v. Astrigg, Cro. Jac. 184 119 
 
 c. Scholefield, 6 T. R. 691 . . . . 56, 60, 102, 123, 295 
 
 Holwood V. Hopkins, Cro. Eliz. 787 332 
 
 Home V. Bentinck, 4 Moore, 563 ; 2 B. & B. 130 . . . 189, 195, 
 
 536 
 Homer r. Taunton, 5 H. & N. 661 ; 29 L. J. Ex. 318 ; 8 W. R. 499 ; 
 
 2 L. T. 512 24, 106, 539 
 
 Honess and another v. Stubbs, 7 C. B. X. S. 555 ; 29 L. J. C. P. 220 ; 
 
 8 W. R. 188 ; 6 Jur. N. S. 682 486 
 
 Hooker -y. Tucker, Holt, 39 . . . . " 79 
 
 Hooper r. Truscott, 2 Scott, 672 ; 2 Ring. N. C. 457 . 221, 265, 268 
 
 Hopkinson v. Lord Burghlev, L. R. 2 Ch. 447 ; 36 L. J. Ch. 504 ; 15 
 
 W. R. 543 . . ' 518 
 
 Hopper r. Warburton, 7 L. T. 722 . . '. . . . . 454 
 Hopwood i: Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87 . 73, 82, 
 
 204, 206, 211, 232, 310, 316, 320 
 Home V. Hough and others, L. R. 9 C. P. 135 ; 43 L. J. C. P. 70 ; 
 
 22 W. R. 412 507 
 
 Horner v. JNIarshall's Administratrix, 5 Mnmford, Virginia, 466 . . 354 
 
 r. Oyler, 49 L. J. C. P. 655 343 
 
 Hort v. Reade, Ir. R. 7 C. L. 551 177, 483 
 
 Horwell v. London General Omnibus Co., 2 Ex. D. 365 ; 46 L. J. Ex. 
 
 700 ; 25 W. R. 610 ; 36 L. T. 637 481 
 
 Houlden v. Smith, 14 Q. B. 841 ; 19 L. J. Q. B. 170 . . . .188 
 Ho^y r. Prin, Holt, 652 ; 7 Mod. 107 ; 1 Brown's P. C. 64 ; 2 Salk. 
 
 694 ; 2 Ld. Raym. 812 69, 71, 121, 236 
 
 Howard v. Cosset, 10 Q. B. 359, 411 ; 14 L. J. Q. B. 367 ; 16 L. J. Q. 
 
 B. 345 ; 11 Jur. 750 ; Car. & M. 380 .... 423, 435 
 Howe V. Buffiilo & Erie Ry. Co., 38 Barb. (New York), 124 . . 374 
 Hovt V. McKenzie, 3 Barb. Ch. R. 320, (American) . . . . 15 
 Huckle V. Reynolds, 7 C. B. N. S. 114 . . . . 56, 131, 351 
 Hudson r. Tooth, 2 P. D. 125 ; 25 W. R. 107 ; 35 L. T. 820 . . 431 
 
 Huff r. Bennett, 4 Sand. (New York), 120 362 
 
 Huggons V. Tweed, 10 Ch. D. 359 ; 27 W. R. 495 ; 40 L. T. 284 . . 500 
 Hughes (-. Porral and others, 4 Moore, P. C. C. 41 . . . . 438 
 Hume r. ]\Iarshall, Times, Nov. 26, 1877 ... 66, 212, 282 
 
 Humphreys v. Miller, 4 C. & P. 7 212, 539 
 
 V. Stanfield, Cro. Car. 469 ; Godb. 451 ; Sir W. Jones, 
 
 388 ; 1 Roll. Abr. 38 139 
 
 r. Stillwell, 2 F. & F. 590 236 
 
 Hunt u. Algar and others, 6 C. & P. 245 . . .27, lOO, 159, 552 
 
 xxxviii
 
 TABLE OF CASES. Hun— Jes. 
 
 I' AGE 
 
 Hunt v. City of London Real Property Co., 3 Q. B. D. 19 ; 47 L. J. 
 
 Q. B. 42, 51 ; 26 W. R. 37 ; 37 L. T. 344 . . . . 561 
 
 V. Goodlake, 43 L. J. C. P. 54 ; 29 L. T. 472 . 25, 94, 101, 117, 544 
 
 V. Jones, Cro. Jac. 499 316 
 
 Hunter v. Sharpe, 4 F. & F. 983 ; 15 L. T. 421 ... 51, 102 
 
 Huntley r. Ward, 6 C. B. N. S. 514 ; 1 F. & F. 552 ; 6 Jur. N. S. 18 
 
 199, 205, 227, 229, 264, 279 
 
 Hurst V. Bell, 1 Bing. 1 547 
 
 Hutcliinson v. Glover, 1 Q. B. D. 138 ; 45 L. J. Q. B. 120 ; 24 W. R. 
 
 185 ; 33 L. T. 605, 834 .... 517,518 
 
 V. Hartinont, W. N. 1877, p. 29 (M. R.) ... 432 
 
 Ilutton V. Harrison, Hutton, 131 428 
 
 I' Anson v. Stuart, 1 T. R. 748 ; 2 Sm. L. C. 6tli edit., p. 57 . 23, 131, 
 
 177, 485 
 Imperial Land Co. of Marseilles, iJe, 37 L. T. 588 ; W. N. 1877, 
 
 p. 244 527 
 
 Ingram v. Lawson, 6 Scott, 775 ; 5 Bing. N. C. 66 ; 7 Dowl. 125 ; 
 
 1 Arn. 387 ; 3 Jur. 73 ; [as to plea of justification] . . . . 169 
 6 Bing. N. C. 212 ; 8 Scott, 471 ; 4 Jur. 151 ; 9 C. & P. 326 
 
 34, 132, 137, 311, 319, 320, 455,543 
 
 Inman v. Foster, 8 AVend. 602 164 
 
 and others v. Jenkins, L. R. 5 C. P. 738 ; 39 L. J. C. P. 258 ; 
 
 18 W. R. 897 ; 22 L. T. 659 504 
 
 International Financial Society v. City of Moscow Gas Co., (C. A.) 7 
 
 Ch. D. 241 ; 47 L. J. Cli. 258 ; 26 W. R. 272 ; 37 L. T. 736 . 563 
 
 Ireland v. Champneys, 4 Taunt. 884 355 
 
 Irwin V. Brandwood, 2 H. & C. 960 ; 33 L. J. Ex. 257 ; 10 Jur. N. S. 
 
 370 ; 12 W. R. 438 ; 9 L. T. 772 29, 66 
 
 Isaacs, Ex imrU, 10 Cli. D. 1 ; 27 W. R. 297 ; 39 L. T. 520 . . 467 
 Isham %\ York, Cro. Car. 15 71 
 
 Jackson v. Adams, 2 Scott, 599 ; 2 Bing. N. C 402 ; 1 Hodges, 78, 
 
 339 62, 273 
 
 V. Hopperton. 16 C. B. ^. S. 829 ; 12 W. R. 913 ; 10 L. T. 
 
 529 . ■ 203, 268, 275 
 
 r. Mawby, 1 Ch. D. 86 ; 45 L. J. Ch. 53 ; 24 W. R. 92 . . 435 
 
 Jacob V. Lawrence, 4 L. R. (Ir.), 579 ; 14 Cox C. C. 321 . . . 227 
 
 v. Mills, 1 Yen tr. 117; Cro. Jac. 343 62 
 
 James i;. Boston, 2 C. & K. 4 217,223 
 
 V. Brook, 9 Q. B. 7 ; 16 L. J. Q. B. 17 ; 10 Jur. 541 . . . 78 
 
 (as to costs) 16 L. J. Q. B. 168 339 
 
 V. James, L. R. 13 Eq. 421 ; 41 L. J. Ch. 253 ; 26 L. T. 568 . 15 
 
 V. Jolly, Bristol Summer Assizes, 1879 212 
 
 Jarman v. Lucas, 33 L. J. C. P. 108 463 
 
 Jarnigan r. Fleming, 43 Miss. 711 164 
 
 Jefferies I'. Huncombe, 2 Camp. 3 ; 11 East, 226 . . . .8,22 
 
 Jekyll V. Sir John Moore, 2 B. & P. N. R. 341 ; 6 Esp. 63 . . . 189 
 Jenkins v. Morris, (C. A.) 14 Ch. D. 674 ; 49 L. J. Ch. 392 . . 561 
 
 V. Smitli, Cro. Jac. 586 74 
 
 Jenkinson v. Mayne, Cro. Eliz. 384 ; 1 Vin. Abr. 415 ... 55 
 
 Jenner and another v. A'Beckett, L. R. 7 Q. B. 11 ; 41 L. J. Q. B. 14 ; 
 
 20 W. R. 181 ; 25 L. T. 464 . . . . . 26, 33, 51, 79, 113 
 Jennings and Wife v. London General Omnibus Co., 30 L. T. 266 . 566 
 Jesson V. Hayes, Roll. Abr. 63 80, 137 
 
 xxxix
 
 Joh— Ker. TABLE OF CASES. 
 
 PAGE 
 
 Johnassoii r. Bonbote, 2 Cli. D. 298 ; 45 L. J. Ch. 651 ; 24 W. R 
 
 619 ; 34 L. T. 745 477 
 
 Johns r. Gittings, Cro. Eliz. 239 80 
 
 V. James, 13 Ch. D. 370 506 
 
 Johnson x. Aylmer, Sir John, Cro. Jae. 126 119 
 
 v. Browning;, 6 Mod. 217 178 
 
 r. Evans, 3^Esp. 32 193, 220 
 
 r. Hudson and Morgan, 7 A. & E. 233 ; 1 H. & W. 680 . 158, 535 
 
 V. Lemmon, 2 EoU. Hep. 144 78 
 
 %\ Palmer, 4 C. P. D. 258 ; 27 W. E. 941 .... 569 
 
 V. Smith, 25 W. E. 539 ; 36 L. T. 741 520 
 
 JoUiffe, ExjMrte, E. r. Lefroy, L. E. 8 Q. B. 134 ; 42 L. J. Q. B. 121 ; 
 
 21 W. E. 332 ; 28 L. T. 132 442, 446 
 
 Joj\es, Ex2Mrte,riYes. 237 430,436 
 
 V. Baxter (C. A.), 5 Ex. D. 275 ; 28 W. E. 817 ... 561 
 
 V. Bewicke, L. E. 5 C. P. 32 486 
 
 r. Broadhurst, 9 C. B. 173 489 
 
 V. Davers vel Dawkes, Cro. Eliz. 496 : 1 Eoll. Al)r. 74 
 
 110, 130,471 
 
 V. Davis (C. A.), 36 L. T. 415 ; W. N. 1877, p. 86 ... 562 
 
 V. Heme, 2 Wils. 87 55, 60, 86, 122 
 
 V. Hough (C. A.), 5 Ex. D. 115 ; 42 L. T. 108 . . . . 561 
 
 V. Littler, 7 M. & W. 423 ; 10 L. J. Ex. 171 . . 70, 79, 124, 541 
 
 V. McGovern, Ir. E. 1 C. L. 681 249 
 
 V. Mackie, L. E. 3 Ex. 1 ; 37 L. J. Ex. 1 ; 16 W. E. 109 ; 17 
 
 L. T. 151 300, 301, 487 
 
 r. Monte Video Gas Co. (C. A.), 5 Q. B. D. 556 ; 49 L. J. Q. B. 
 
 627 ; 28 W. E. 758 ; 42 L. T. 639 . . . . 508, 520 
 
 V. Orchard, 16 C. B. 614 ; 24 L. J. C. P. 229 ; 3 W. E. 554 . 579 
 
 V. Pritchard, 18 L. J. Q. B. 104 ; 6 D. & L. 529 .. . 466 
 
 r. Stevens, 11 Price, 235 177,305,531 
 
 Jourdain v. Palmer, L. E. 1 Ex. 102 ; 35 L. J. Ex. 69 ; 12 Jur. N. S. 
 
 214 ; 14 W. E. 283 ; 13 L. T. 600 506 
 
 Justice V. Gosling, 12 C. B. 39 ; 21 L. J. C. P. 94 . . . . 549 
 
 Kain v. Farrer, 37 L. T. 469 ; ^y. N. 1877, p. 266 . . 519, 521, 535 
 Kane v. Mulvany, Ir. E. 2 C. L. 402 . . . . 35, 187, 253, 259 
 
 Kehle r. Hickeringill, 11 East, 576 u 149 
 
 Keene i:. Euff, 1 Clarke (Iowa), 482 151 
 
 Keenholts v. Becker, 3 Denio N. Y. 352 332 
 
 Keighlev v. Bell, 4 F. & F. 763 193, 195 
 
 Kelly r. Partington, 4 B. c^ Ad. 700 ; 2 X. & M. 46U ; 5 B. c^ Ad. 645 ; 
 
 3N. &M. 116 89,114,275.326 
 
 V. Sherlock, L. E. 1 Q. B. 686 ; 35 L. J. Q. B. 209 ; 12 Jur. 
 
 N. S. 937 ; 15 W. E. Dig. C. L. 64 .41, 292, 295, 307, 559 
 
 r. Tinling, L. E. 1 Q. B. 699 ; 35 L. J. Q. B. 231 ; 14 W. E. 
 
 51 ; 13 L. T. 255 ; 12 Jur. N. S. 940 . . . . 28, 47 
 Kemp V. Neville, 10 C. B. N. S. 523 ; 31 L. J. C. P. 158 ; 9 W. E. 
 
 C. L. Dig. 84 ; 4 L. T. 640 189 
 
 Kendillon v. Maltbv, 1 Car. & M. 402 ; 2 M. & Eob. 438 ; 1 Dow & 
 
 Clark, 495 168, 190, 332 
 
 Kennedy v. Hilliard, 10 Ir. C. L. E. 195 ; 1 L. T. 578 . . .192 
 Kent t'. Lewis, 21 W. E. 413 334. 
 
 V. Stone, Bristol Summer Assizes, 1880 315 
 
 Kerr v. Shedden, 4 C. & P. 528 322 
 
 xl
 
 TABLE OF CASES. Ker— Lau. 
 
 PAGE 
 
 Kerry (Earl of) v. Tliorley, 4 Taunt. 355 ; 3 Camp. 214 n. . . 5, 22 
 
 Kershaw v. Bailey, 1 Exch. 743 ; 17 L. J. Ex. 129 . . 224, 236, 239, 
 
 271,285 
 
 Keyworth v. Hill, 3 B. & Aid. 685 372 . 
 
 Keyzor and another v. Newcomb, 1 F. & F. 559 ... 31, 159 
 Kielley v. Car.son and other.'^, 4 Moore, P. C. C. 63 . . . 424, 425 
 
 Kilmore v. Al-duolah, 27 L. J. Ex. 307 559 
 
 Kine V. Sewell, 3 M. & W. 297 . . . . 204, 217, 226, 231, 233, 238 
 
 King V. Bagg, Cro. Jac. 331 123 
 
 ^ V. Davenport, 4 Q. B. D. 402 ; 48 L. J. Q. B. 606 ; 27 W. R. 798 522 
 
 V. Hoare, 13 M. & W. 494, 504 457 
 
 (Col.) V. Lake, 2 Ventr. 28 ; Hardres, 470 ... 5, 74 
 
 V. Waring and ux. 5 Esp. 15 ...... 168, 232 
 
 V. Watts, 8 C. & P. 615 209, 218 
 
 V. Wood, 1 N. & M. (South Car.) 184 25 
 
 and another v. Hawkesworth, 4 Q. B. D. 371 ; 48 L. J. Q. B. 
 
 484 ; 27 W. E. 660 ; 41 L. T. 411 . .338, 570 
 Kinnahan v. McCullogh, Jr. R. 11 C. L. 1 . . . . 106, 242 
 
 Kirby v. Simpson, 10 Exch. 358 ; 3 Dowl. 791 ... . 188, 487 
 Knight V. Gibbs, 1 A. & E. 43 ; 3 N. & M. 467 .. . 326, 327 
 
 V. Purcell. 49 L. J. Ch. 120 ; 28 W. R. 90 ; 41 L. T. 581 . 340 
 
 and wife v. Lynch, 9 H. L. C. 577 ; 8 Jur. N. S. 724 ; 5 
 
 L. T. 291 . . . . 86, 88, 312, 319, 323, 324, 325, 326, 349 
 
 Knobell v. Fuller, Peake's Add. Cas. 139 306 
 
 Koenig v. Ritchie, 3 F. & F. 413 52, 229 
 
 Kramer v. Waymark, L. R. 1 Ex. 241 ; 35 L. J. Ex. 148 ; 12 Jur. 
 
 N. S. 395 ; 14 W. R. 659 ; 14 L. T. 368 355 
 
 Krehl v. Burrell (C. A.), 10 Ch. D. 420 ; 48 L. J. Ch. 252 ; 27 W. R. 
 
 234 ; 39 L. T. 461 561 
 
 Kynaston r. Mackinder, 47 L. J. Q. B. 76 ; 26 W. R. Dig. 62 ; 37 
 
 L. T. 390 336 
 
 Lafoxe v. Smith, 3 H. & N. 735 ; 28 L. J. Ex. 33 ; 4 Jur. N. S. 1064 300 
 Costs and payment into Court, 4 H. & N. 158 ; 
 
 5 Jur. N. S. 127 301 
 
 Lake v. King, 1 Lev. 241 ; 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58 
 
 152, 187, 222, 242, 245, 284 
 Lake and another v. Pooley, W. N. 1876, p. 54 ; Bitt. 121 ; 20 Sol. J. 
 
 280 ; 60 L. T. Notes, 250 517 
 
 Lamb i-. Walker, 3 Q. B. D. 389 ; 45 L. J. Q. B. 451 ; 26 W. E. 775 ; 
 
 38 L. T. 643 317 
 
 Lamb's Case, 9 Rep. 60 156, 386 
 
 Laming r. Gee (C. A.), 28 W. R. 217 565 
 
 Lancaster v. French, 2 Str. 797 67, 80 
 
 Lane v. Applegate, 1 Stark. 97 489 
 
 Langley, Ex parte, Ex parte Smith, Re Bishop, 13 Ch. D. 110; 49 
 
 L. J. Bkcy. 1 ; 28 W. R. 174 ; 41 L. T. 388 .... 432 
 
 Langridge v. Campbell, 2 Ex. D. 281 ; 46 L. J. Ex. 277 ; 25 W. R. 
 
 351 ; 36 L. T. 64 341 
 
 Large v. Large, W. N. 1877, p. 198 569 
 
 Latimer v. Western Morning News, 25 L. T. 44 . . . . • 368 
 Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495 ; 42 L. J. 
 
 P. C. 11 ; 21 W. R. 204 ; 28 L. T. 377 ; 9 Moore, P. C. C. N. S. 
 
 318 230,235 
 
 xli
 
 Lau— Lon. TABLE OF CASES. 
 
 PAGE 
 
 Laureuson r. The Dublin Metropolitan Junction Railway Co., 37 L. 
 
 T. 32 461 
 
 Lauretta, The, 4 P. D. 25 ; 48 L. J. Prob. 55 ; 27 W. R. 902 ; 40 
 
 L. T. 444 565 
 
 Law V. Harwood, Sir W. Jones, 196 ; Palm. 529 ; Cro. Car. 140 141 
 Lawless x\ 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 
 
 152, 235, 242, 283, 284, 368, 532 
 
 Lawrence v. Smith, Jacob, 471 374 
 
 V. Woodward. Cro. Car. 277 ; 1 Roll. Abr. 74 . . . 56 
 
 Lay V. Lawsou, 4 Ad. & E. 795 241, 246, 283 
 
 Leach's Case, 11 St. Tr. 307 ; 19 How. St. Tr. 1002 . . . .574 
 Lee V. Colyer, W. N. 1876, p. 8 ; Bitt. 80 ; 1 Charley, 86 ; 20 Sol. J. 
 
 177 ; 60 L. T. Notes, 157 494 
 
 - V. Huson, Peake, 223 273 
 
 - V. RUey, 18 C. B. N. S. 722 327 
 
 Le Fanu and another v. Malcomson, 1 H. L. C. 637 ; 8 Ir. L. R. 418 ; 
 
 13 L. T. 61 32, 129, 130, 319, 324, 365, 367 
 
 Lefroy x\ Burnside, 4 L. R. Ir. 340 ; 41 L. T. 199 ; 14 Cox, C. C. 260 
 
 514, 619 
 
 4 L. R. Ir. 556 171 
 
 Leicester (Earl of) v. Walter. 2 Camp. 251 305, 306 
 
 Le Merchant, Attorney- General v., 2 T. R. 201, n 581 
 
 Lentner v. Merfield, Tnm><, May 6th, 1880 204 
 
 Lethbridge v. Cronk, 44 L. J. C. P. 381 508 
 
 Leversage v. Smith, Cro. Eliz. 710 ....... 56 
 
 Levet's Case, Cro. Eliz. 289 78, 91, 350 
 
 Levi V. Milne, 4 Bing. 195 ; 12 Moore, 418 . 105, 130, 550, 552, 558 
 
 Le^y V. Lawson, 3 E. B. & E. 560 ; 27 L. J. Q. B. 282 .. . 249 
 
 v. Moylan, 19 L. J. C. P. 308 ; 1 L. M. & P. 307 . . 443, 446 
 
 Lewes v. Walter [1617J, 3 Bulstr. 225 ; Cro. Jac. 406, 413 ; Roll. Rep. 
 
 444 131, 165 
 
 (Earl of) V. Bamett, 6 Ch. D. 252 ; 47 L. J. Ch. 144 ; 26 W. R. 
 
 101 432 
 
 Lewis r. Clement, 3 B. & Aid. 702 ; 3 Br. & B. 297 ; 7 Moore, 200 
 
 29, 99, 172, 256, 291, 486 
 
 V. Lew, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 970 
 
 44, 99, 176, 243, 245, 247, 248, 256 
 
 r. Walter, 4 B. & Aid. 605 . . . . 45, 163, 164, 176, 253 
 
 and Herrick v. Chapman, 2 Smith, 16 N. Y. R. 369 . . . 269 
 
 Lewknor v. Cruchley and wife, Cro. Car, 140 55 
 
 Leycroft V. Dunker, Cro. Car. 317 79 
 
 Leyman v. Latimer and others, 3 Ex. D. 15, 352 ; 46 L. J. Ex. 765 ; 
 
 47 L. J. Ex. 470 ; 25 W. R. 751 ; 26 W. R. 305 ; 37 L. T. 360, 
 
 819 ; 14 Cox, C. C. 51 . . . 24,58,171,177,485,497,60 3 
 Liberia (Republic of) v. Rove, 1 App. Cas. 139 ; 45 L. J. Ch. 297 ; 24 
 
 AV. R. 967 ; 34 L. T. 145 431 
 
 Lincoln (Earl of) v. Fisher, Cro. Eliz. 581 ; Ow. 113 ; Moore, 470 . 440 
 Lister v. Perryman, L. R. 4 H. L. 521 ; 39 L. J. Ex. 177 ; 18 W. R. 
 
 Dig. 14 ; 23 L. T. 269 214, 278 
 
 Littler c. Thompson, 2 Beav. 129 46, 429, 430 
 
 Litton V. Titton, 3 Ch. D. 793 ; 24 W. R. 962 500 
 
 Lloyd r. Jones, 7 B. & S. 475 . . 559 
 
 V. Morky, 5 L. R. Ir. 74 515 
 
 London v. Eastgate, 2 RoUe's Rep. 72 77 
 
 xlii
 
 TABLE OF CASES. Lov— Mai. 
 
 PAGE 
 
 Lovejoy v. Murray, 3 Wall. (Sup. Ct.), 1 458 
 
 Lovett V. Wilier, 1 Roll. 4G9 143 
 
 Lowe V. Harewood, Sir W. Jones, 196 ; Cro. Car. 140 . . . . 138 
 
 V. Lowe (C. A.), 10 Ch. D. 432 ; 48 L. J. Ch. 383 ; 27 W. R. 
 
 309 ; 40 L. T. 236 561 
 
 Lows, Exfartc, hire Lows (C. A.), 7 Ch. D. 160 ; 47 L. J. Bank. 24 ; 
 
 26 W. R. 229 ; 37 L. T. 583 564 
 
 Lucan (Earl ol) v. Smith, 1 H. & N. 481 ; 26 L. J. Exch. 94 ; 2 Jur. 
 
 N. S. 1170 483 
 
 Lumby v. Allday, 1 Tyr. 217 ; 1 C. & J. 301 . . .66, 78, 84, 293 
 
 Lumley v. Gye, 2 E. & B. 216 322, 326 
 
 Lynam v. Cowing, 6 L. R. Ir. 259 191, 254 
 
 Lynch v. KniKht and wife, 9 H. L. C. 577 ; 8 Jur. N. S. 724 ; 5 L. T. 
 
 291 86, 88, 312, 319, 323, 324, 325, 326, 319 
 
 Lyon V. Tweddell, 13 Ch. D. 375 506 
 
 M. MoxHAM, The (C. A.), 1 P. D. 107 ; 46 L. J. P. D. & A. 17 ; 24 
 
 W. R. 597, 650 ; 34 L. T. 559 527 
 
 Macaulay v. Shakell and others, 1 Bligh, N. S. 96 . . . . 527 
 
 Maegill's Case, 2 Fowl. Ex. Pr. 404 429 
 
 Macintosh v. Great Western Railway Co., 22 L. J. Ch. 72 . . . 510 
 Mackay v. Ford, 5 H. & N. 792 ; 29 L. J. Ex. 404 ; 6 Jur. N. S. 587 ; 
 
 8 W. R. 586 190 
 
 Mackereth v. Glasgow and South-Western Railway Co., L. R. 8 Ex. 
 
 149 ; 42 L. J. Ex. 82 ; 21 W. R. 339 ; 28 L. T. 167 . . . 461 
 
 Macleod v. Wakley, 3 C. & P. 311 52, 276, 534 
 
 McAleece, In re, Ir. R. 7 C. L. 146 437 
 
 McAndrew v. Barker (C. A.), 7 Ch. D. 701 ; 47 L. J. Ch. 340 ; 26 W. 
 
 R. 317 ; 37 L. T. 810 563 
 
 McCabe v. Foot, 18 Ir. Jur. (vol. xi., N. S.) 287 ; 15 L. T. 115 . . 57 
 
 M'Cauley v. Thorp, 1 Chit. 685 525 
 
 M'Corquodale v. Bell and another, Weekly Notes, 1876, p. 39 ; Bitt. 
 
 Ill ; 20 Sol J. 260 ; 60 L. T. Notes, 232 . . . 509 
 
 and another v. Bell and another, 1 C. P. D. 471 ; 45 L. 
 
 J. C. P. 329 ; 24 W. R. 399 ; 35 L. T. 261 . . 518 
 
 McConibe v. Gray, 4 L. R. (Ir.) 432 435 
 
 McCombs V. Tuttle, 5 Blackford (Indiana), 431 152 
 
 McDermott, In re, L. R. 1 P. C. 260 ; L. R. 2 P. C. 341 ; 38 L. J. 
 
 P. C. 1 ; 20 L. T. 47 438 
 
 M'Dougall V. Claridge, 1 Camp. 267 235 
 
 M'Elveney v. Connellan, 17 Ir. C. L. R. 55 . . . • ^ • • ^^^ 
 McFadzen v. Mayor and Corporation of Liverpool, L. R. 3 Ex. 279 ; 16 
 
 W. R. 48 505 
 
 McGregor v. Gregory, 11 M. & W. 287 ; 12 L. J. Ex. 204 ; 2 Dowl. 
 
 N. S. 769 24, 176, 244 
 
 V. Thwaites, 3 li & C. 24 ; 4 D. & R. 695 . . . 165, 193 
 
 McTntvie v. McBean, 13 Upper Canada, Q. B. Rep. 534 ... 224 
 
 M'Loughlin v. D^vyer (1), Ir. R. 9 C. L. 170 . . . . 483, 515 
 
 McNally v. Oldham, 16 Ir. C. L. R. 298 ; 8 L. T. 604 . . .249 
 M'Pherson v. Daniels, 10 B. & C. 263 ; 5 M. & R. 251 . 162, 163, 164, 
 
 165, 174, 175, 471 
 McSte])hens v. Carnegie, 28 W. R. 385 ; 42 L. T. 309 .... 462 
 
 Magrath v. Finn, I. R. 11 C. L. 152 242 
 
 Maguire v. Knox, 5 Ir. C. L. R. 408 102, 483 
 
 Maitland v. Brarawell, 2 F. & F. 623 214, 238 
 
 xliii
 
 Mai— Mea. TABLE OF CASES. 
 
 PAGE 
 
 Maitland and others r. Golduey and another, 2 East, 426 163, 367, 537 
 
 Malachy v. Woper and another, 3 Bing. N. C. 371 ; 3 Scott, 723 ; 
 
 2 Hodges, 217 . . . '" 139,141 
 
 Malonev r. Bartley, 3 Camp. 210 .... 156, 193, 359, 384 
 Manhy'r. Witt, 18 C. B. 544 ; 25 L. J. C. P. 294 ; 2 Jur. N. S. 1004 
 
 203, 226, 285 
 Manchester, &c., Eaihvay Co. and London and North-Western Eail- 
 
 way Co. V. Brooks, 2 Ex. D. 243 ; 46 L. J. Ex. 244 ; 25 W. E. 
 
 413 ; 36 L. T. 103 370 
 
 Manning v. Averv, 3 Keb. 153 ; 1 Vin. Abr. 553 140 
 
 V. Clement, 7 Bing. 362 ; 5 M. & P. 211 . . . 547, 549 
 
 Mansel, In re, Ehodes v. Jenkins (C. A.), 7 Ch. D. 711 ; 47 L. J. Ch. 
 
 870 ; 26 W. E. 361 ; 38 L. T. 403 563 
 
 Mansergh, Re, 1 B. & S. 400 ; 30 L. J. Q. B. 296 . . . . 195 
 Mansfield v. Childerhouse, 4 Ch. D. 82 ; 46 L. J. Ch. 30 ; 25 W. E. 
 
 68 ; 35 L. T. 590 508 
 
 Mapleson v. Masini, 5 Q. B. D. 144 ; 49 L. J. Q. B. 423 ; 28 W. R. 
 
 488 ; 42 L. T. 531 495 
 
 Marlborough (Duke of). Ex parte, 5 Q. B. 955 ; 13 L. J. M. C. 105 ; 
 
 1 Dav. & iler. 720 381, 440 
 
 Marriott v. Marriott, 26 W. R. 416 ; Weekly Notes, 1878, p. 57 . . 498 
 Marsden and wife v. Lancashire and Yorkshire Eailway Co., 42 L. T. 
 
 631 337 
 
 Marsh v. Isaacs, 45 L. J. C. P. 505 557 
 
 Marshall v. Martin, L. R. 5 Q. B. 239 ; 39 L. J. Q. B. 85 ; 18 W. E. 
 
 378 ; 21 L. T. 788 335 
 
 Martano v. Mann (C. A.), 14 Ch. D. 419 ; 49 L. J. Ch. 510 ; 42 
 
 L. T. 890 ; 28 W. R. Dig. 67 346 
 
 Martin v. Bannister, 4 Q. B. D. 212, 491 ; 48 L. J. Ex. 300 ; 27 W. E. 
 
 431 446 
 
 V. Butchard, 30 L. T. 732 518 
 
 V. Loei, 2 F. & F. 654 106, 109, 549 
 
 V. Mackonochie, 3 Q. B. D. 730 431 
 
 V. Strong, 5 A. & E. 535 ; 1 N. & P. 29 ; 2 H. & W. 336 
 
 238, 239, 310 
 
 V. Van Schaith, 4 Paige, 479 355 
 
 r. Wright, 6 Sim. 297 14 
 
 Martin's Case, 2 Russ. & My. 674 n 429, 434 
 
 Martyn v. Burlings, Cro. Eliz. 589 75 
 
 - — V. Williams, 1 H. & N. 817 ; 26 L. J. Ex. 117 . . . 537 
 Marzetti v. Williams, 1 B. & Ad. 415 ....... 8 
 
 Masham v. Bridges, Cro. Car. 223 71 
 
 Mason v. Brentini, 15 Ch. D. 287 ; 29 W. R. 126 ; 42 L. T. 726 ; 43 
 
 L. T. 557 . . . . 342 
 
 V. Jennings, Sir T. Ravm. 401 9 
 
 V. Thompson, Hutt. 38 122 
 
 Massey v. Allen, 12 Ch. D. 807 ; 48 L. J. Ch. 692 ; 28 W. R. 243 . 356, 467 
 
 Matthew v. Crass, Cro. Jac. 323 310 
 
 Mawe V. Pigott, Ir. R. 4 C. L. 54 26 
 
 May V. Brown, 3 B. & C. 113 ; 4 D. & R. 670 . . 29, 297. 307, 537 
 
 Mayhew v. Locke, 7 Taunt. 63 '. . 442 
 
 Mayne v. Fletcher, 4 M. & R. 312 ; 9 B. & C. 382 . 6, 154, 159, 387, 531 
 Mead, In re, Ex juuie Cochrane, L. R. 20 Eq. 282 ; 44 L. J. Bkcv. 
 
 87 ; 23 W. R. 726 ; 32 L. T. 508 \ 431 
 
 V. Daubigny, Peake, 168 272, 276 
 
 xliv
 
 TABLE OF CASES. Mea— Mot 
 
 VAGE 
 
 Meagher v. Moore, 3 Smith, 135 ; in error, 1 Taunt. 39 . . . 88, 311 
 Mears v. Griffin, 1 I\r. & Gr. 796 ; 2 Scott, N. 11. 15 . . . . 559 
 
 Medhurst v. Balam, cited 1 Sider. 397 312 
 
 Meggs y. Griffith, Cio. Eliz. 400 ; Moore, 408 . . . . 127, 165 
 Mercer ■}?. Sparks, (1586) Owen, 51 ; Noy, 35 472 
 
 V. Whall, 5 Q. B. 447, 462, 463 ; 14 L. J. Q. B. 267, 272 . . 530 
 
 Mercers Co., Ex parte, 10 Ch. D. 481 ; 48 L. J. Ch. 384 ; 27 W. R. 
 
 424 335 
 
 ^[ercier v. Cotton, 1 Q. B. D. 442 ; 46 L. J. Q. B. 184 ; 24 W. U. 566 ; 
 
 35 L. T. 79 501, 510 
 
 Merest v. Harvey, 5 Taunt. 442 83 
 
 Merryweather n.'Nixan, 8 T. R. 186 ; 2 Sm. L. C. 546 (8th ed) . 359, 372 
 Metropolitan Inner Circle Railway Co. v. Metropolitan Railway Co., 
 5 Ex. D. 196 ; 49 L. J. Ex. 505 ; 28 W. R. 510 ; 42 
 
 L. T. 591 523 
 
 . Omnihus Co. v. Hawkins, 4 H. & N. 87 ; 28 L. J. Ex. 
 
 201 ; 5 Jur. N. S. 226 ; 7 W. R. 265 ; 32 L. T. Old S. 
 
 281 . . G . . . 2, 32, 178, 368, 369, 516 
 
 Michel V. Wilson, 25 W. R. 380 474 
 
 Mickelthwaite v. Fletcher, 27 W. R. 793 436 
 
 Milissich V. Llovds, 46 L. J. C. P. 404 ; 36 L. T. 423 ; 13 Cox, C. C. 
 
 575 251, 252, 254 
 
 W, X. 1875, p. 200 ; Bitt. 5 ; 1 Charley, 119 ; 20 
 
 Sol. J. 31 ; 60 L. T. Notes, 33 . " . . . 527 
 Miller v. Buckdun, 2 Buls. 10 122 
 
 V. David, L. R. 9 C. P. 118 ; 43 L. J. C. P. 84 ; 22 W. R. 
 
 332 ; 30 L. T. 58 90, 117, 323, 474 
 
 V. Hope, 2 Shaw Sc. App. Cas. 125 189 
 
 Milman v. Pratt, 2 B. & C. 486 ; 3 D. & R. 728 141 
 
 Mills and wife v. Spencer and wife (1817), Holt, N. P. 533 165, 302, 305 
 Minnehaha, The, L. R. 3 A. & E. 148 ; 19 W. R. 304 ; 23 L. T. 
 
 747 512 
 
 Minors -y. Leeford, Cro.Jac. 114 ..... 109,119,122 
 
 Mitchell V. Brown, 3 Inst. 167 ; 1 Roll. Abr. 70 96 
 
 Moises V. Thornton, 8 T. R. 303 ...... 69, 531 
 
 Moody V. Steward, L. R. 6 Ex. 35 ; 40 L. J. Ex. 25 ; 19 W. R 161 ; 
 
 23 L. T. 465 567, 569 
 
 Moon V. Towers, 8 C. B. N. S. 611 361 
 
 ]\Ioone V. Rose, L. R. 4 Q. B. 486 ; 38 L. J. Q. B. 236 . . ••435 
 
 Moor (Sir George) v. Foster, Cro. Jac. 65 70 
 
 V. Roberts, 3 C. B. N. S. 671 ; 26 L. J. C. P. 246 . 505, 508 
 
 ats. 1 M. & S. 284 305 
 
 Moore v. Meagher (in error), 1 Taunt. 39 ; (below) 3 Smith, 135 88, 311 
 
 V. Terrell and others, 4 B. & Ad. 870 ; 1 N. & M. 559 . 30, 485 
 
 Mordaunt v. Mordaunt, 39 L. J. Prob. & Matr. 59 . . . 264, 353 
 
 More V. Bennett (1872), 48 N. Y. R. (3 Sickel), 472 . . . 24, 106 
 
 Morgan v. Lingen, 8 L. T. 800 23 
 
 Morris v. Freeman and wife, 3 P. D. 65 ; 47 L. J. P. D. & A. 79 ; 27 
 
 W. R. 62 ; 39 L. T. 125 347, 553 
 
 *;. Langdale, 2 B. & P. 284 . . . . 79,81,111,326 
 
 Morrison v. Belcher, 3 F. & F. 614 . . . . . . . 50 
 
 and another v. Harmer and another, 3 Bing. N. C. 759 ; 
 
 4 Scott, 524 ; 3 Hodges, 108 . . . 34, 51, 170, 486 
 
 Mortimer v. IM'Callan, 6 ]\I. & W. 58 8, 536 
 
 Mot (it ux. V. Butler, Cro. Car. 236 122 
 
 xlv
 
 Moii-0'Br TABLE OF CASES. 
 
 Moimtney r. Watton, 2 B. & Ad. 673 99, 170, 172 
 
 Mulkern v. Ward, L. R. 13 Eq. G19 ; 41 L. J. Ch. 464 ; 20 W. R. 
 
 Dig. 38 ; 26 L. T. 831 15, 43 
 
 Mullett V. HultoB, 4 Esp. 248 302 
 
 ]\[ulligan V. Cole and others, L. R. 10 Q. B. 549 ; 44 L. J. Q. B. 153 ; 
 
 33 L. T. 12 26, 117, 228, 544 
 
 Miilock, Re, 33 L. J. Pr. & Matr. 205 ; 10 Jur. N. S. 1188 ; 13 W. R. 
 
 278 430 
 
 Munroe v. Pilkington, 31 L. J. Q. B. 89 ; 8 Jur. N. S. 557 ; 10 W. R. 
 
 Dig. 37 ; 6 L. T. 21 439 
 
 Murdoch v. Warner, 4 Cli. D. 750 ; 46 L. J. Ch. 121 ; 25 W. R. 207 ; 
 
 35 L. T. 748 454 
 
 Murphy v. Halpin, Ii-. R. 8 C. L. 127 52, 229 
 
 Murrey's Case, 2 Buls. 206 ; 1 Vin. Abr. 440 124 
 
 Musgrave v. Bovev, 2 Str. 946 73 
 
 Myers v. Defries, ^2\mes, July 23, 1877 248, 269 
 
 3 Q. B. D. 95, 459 ; 4 Ex. D. 176 ; 48 L. J. 446 ; 
 
 27 W. R. 191 ; 40 L. T. 795 ; 5 Ex. D. 15, 180 ; 
 
 28 W. R. 406 ; 41 L. T. 659 . . . . 269, 339 
 
 Nadex v. Micocke (1684\ 3 Lev. 166 ; Sir T. Jones, 235 ; 2 Ventr. 172 ; 
 
 3 Salk. 325 . . ' 558 
 
 Napier v. Daniel and another, 3 Scott, 417 ; 3 Bing. N. C. 77 ; 2 
 
 Hodges, 187 558 
 
 National Funds Assurance Co., In re (C. A.), 4 Ch. D. 305 ; 46 L. J. 
 
 Ch. 183 ; 25 W. R. 151 ; 35 L. T. 689 563 
 
 Neale and others r. Clark and others, 4 Ex. D. 286 ; 41 L. T. 438 . 342 
 
 Neve V. Cross, Sty. 350 55 
 
 New British Co. v. Peed, 26 W. R. 354 ; W. N. 1878, p. 52 . . 517 
 Newley v. Van Often, L. R. 7 Q. B. 293 ; 41 L. J. Q. B. 148 ; 20 W. 
 
 R. 383 ; 26 L. T. 164 . . ■ 461 
 
 Newman v. Bailey, 2 Chit. 665 177, 485 
 
 V. Zachary, Aleyn, 3 140 
 
 Newton, Ex parte, re Pigott, 11 Cox, C. C. 311 587 
 
 V. Chaplin, 10 C. B. 56 536 
 
 V. Stubbs, 3 Mod. 71 470 
 
 and wife v. Boodle and others, 4 C. B. 359 ; 18 L. J. C. P. 73 
 
 347, 553 
 
 Nicholl V. Jones, 2 H. & M. 588 ; 13 W. R. 451 518 
 
 Nicholson v. Jackson, W. N. 1876, p. 38 494 
 
 V. Lj'ue, Cro. Eliz. 94 72 
 
 Nixon r. Harvey, 8 Ir. C. L. Rep. 446 483 
 
 Noel V. Noel, 13 Ch. D. 510 ; 28 W. R. 720 ; 42 L T. 352 . , .467 
 
 Norman v. Johnson, 29 Beav. 77 • 338 
 
 Norris v. Smith, 10 A. & E. 188 453 
 
 North V. Bilton, 4Q. B. D. 99; 48 L.J. Q. B. 161 ; 27 W. R. 247 ; 39 
 
 L. T. 608 336 
 
 Northampton's (Earl of) Case, 12 Rep. 134 127, 162 
 
 Nutt's (Elizabeth) Case, Fitzg. 47 ; 1 Barnard. 306 . 161, 363, 413 
 
 Oake and another v. Moorecroft, L. R. 5 Q. B. 76 ; 39 L. J. Q. B. 15; 
 
 18W. R. 115 463 
 
 Oastler v. Henderson (C. A.), 2 Q. B. D. 575 ; 46 L. J. Q. B. 607 ; 37 
 
 L. T. 22 560 
 
 O'Brien v. Bryant, 16 M. & W. 108 ; 16 L. J. Ex. 77 ; 4 D. & L. 341 172 
 
 xlvi
 
 TABLE OF CASES. O'Br— Pea. 
 
 PAGE 
 
 O'Brien v. Clement, 15 M. & W. 435 ; 15 L. J. Ex. 285 ; 3 D. & L. 
 
 676 ; 10 Jar. 395 . . . . 265, 301, 493 
 16 M. & W. 159, 166 ; 16 L. J. Ex. 76, 77 ; 4 
 
 D. & L. 343, 563 21, 23, 24 
 
 Oddy V. Lord George Paulet, 4 F. & F. 1009 . . 79, 227, 240, 286 
 
 Odger V. Mortimer, 28 L. T. 472 52, 557 
 
 O'Donogliue v. Hussey, Ir. R. 5 C. L, 124 . . 52, 168, 229. 230, 281 
 Ogden V. Turner, Holt, 40 ; 6 Mod. 104 ; 2 Salk. 696 . 54, 57, 59, 85 
 
 O'Keefe v. Cardinal Cullen, Ir. R. 7 C. L. 319 487 
 
 Oldham V. Peake, 2 Wm. Bl. 959 ; Cowp. 275 . . 55, 96, 121, 125, 323 
 Oliver v. Bentinck, 3 Taunt. 456 ... . 189, 196, 197, 257 
 
 Olmsted v. Miller, 1 Wend. 506 312 
 
 Onslow V. Home, 2 W. Bl. 750 ; 3 Wils. 177 54, 70, 71, 139, 236, 293, 311 
 
 Onslow's Case, 9 Q. B. 219 ; 12 Cox, C. C. 358 447 
 
 Orpwood V. Barkes, or Parkes, 4 Bing. 261 ; 12 Moore, 492 . 79, 115, 597 
 Osborn v. London Dock Co., 10 Exch. 698 ; 24 L. J. Ex. 140 . . 504 
 Owens v. Woosman, L. R. 3 Q. B. 469 ; 9 B. & S. 243 ; 37 L. J. Q. B. 
 
 159 ; 16 W. R. 932 ; 18 L. T. 357 566 
 
 Oxford d ux. v. Cross, 4 Rep. 18 59, 85, 86 
 
 Padmore r. Lawrence, 11 A. & E. 380 ; 3 P. & D. 209 ; 4 Jar. 458 
 
 220, 221, 274, 284, 285 
 
 Paine v. Mondford, Cro. Eliz. 747 . 56 
 
 Palmer v. Boyer, Owen, 17 ; Cro. Eliz. 342 74 
 
 V. Cohen, 2 B. & Ad. 966 355 
 
 V. Roberts, 22 W. R. 577, n. ; 29 L. T. 403 . . . .566 
 
 Pannell v. Nunn (C. A.), 28 W. R. 940 560 
 
 Paris V. Levy, 9 C. B. N. S. 342 ; 30 L. J. C. P. 11 ; 7 Jur. N. S. 289; 
 
 9 W. R. 71 ; 3 L. T. 324 ; S. C. at Nisi Prius, 2 F. & F. 71 
 
 34, 51, 188 
 Parkes v. Prescott and another, L. R. 4 Ex. 169 ; 38 L. J. Ex. 105 ; 17 
 
 • W. R. 773 ; 20 L. T. 537 156, 361, 362 
 
 Parkins and wife v. Scott and wife, 1 H. & C. 153; 31 L. J. Ex. 331 ; 
 
 8 .Jur. N. S. 593 ; 10 W. R. 562 ; 6 L. T. 394 167, 323, 329, 330, 332 
 Parmiter v. Coupland, 6 M. & W. 105 ; 9 L. J. Ex. 202 ; 4 Jur. 701 
 
 27, 28, 40, 43, 95, 550 
 
 Parret v. Carpenter, Noy, 64 ; 2 Cro. Eliz. 502 73 
 
 Parsons v. Surgey, 4 F. & F. 247 243, 285 
 
 V. Tinling, 2 C. P. D. 119 ; 46 L. J. C. P. 230 ; 25 W. R. 255 ; 
 
 35 L. T. 851 335, 469 
 
 Pasquin's Case, cited 1 Camp. 351 307 
 
 Pashler v. Vincent, 8 Ch. D. 825 ; 27 W. R. 2 432 
 
 Pater, In re, 5 B. & S. 299 ; 33 L. J. M. C. 142 ; 12 W. R. 823 ; 10 L. 
 
 T. 376 429 
 
 r. Baker, 3 C. B. 831 ; 16 L. J. C. P. 124 ; 11 .Jur. 370 138, 144, 271 
 
 Paterson's Case, 1 Brown (Scotch), 629 399 
 
 Pattison v. Jones, 3 M. & R. 101 ; 8 B. & C. 578 . . 2()2, 209, 287 
 Payne, Eximrte, In re Cross, 11 Ch. D. 539, 550 ; 27 W. R. 808 ; 40 
 
 L. T. 563 "... 564 
 
 V. Beuwmorris, 1 Lev. 248 '72, 310 
 
 V. Courthope, 20 Sol. J. 724 487 
 
 Peacham's Case, Cro. Car. 125 ; 2 Cobhett's St. Tr. 870 . . .411 
 Peake v. Oldham, Cowp. 275 ; 2 W. Bl. 959 . . 55, 96, 121, 125, 323 
 
 V. Pollard, Cro. Eliz. 214 94 
 
 Pearce v. Ornsby, 1 M. & Rob. 455 99, 296, 539 
 
 xlvii
 
 Pea— Poe. TABLE OF CASES. 
 
 PAGE 
 
 Pearce v. Rogers, 2 F. & F. 137 471 
 
 V. Watts, L. E. 20 Eq. 492 ; 44 L. J. Cli. 492 ; 23 W. E. 771 477 
 
 Peard v. Jones, Cro. Car. 382 . . . . . . . 68, 74 
 
 Pearson v. Lemaitre, 5 M. & G. 700 ; G Scott, N. E. 607 ; 12 L. J. 
 
 Q. B. 253 ; 7 Jur. 748 .. . 99, 272, 274, 276, 296, 303, 551 
 Pemberton r. Colls, 10 Q. B. 461 ; 16 L. J. Q. B. 403 ; 11 Jiir. 1011 
 
 72, 73, 295 
 
 Penfokl V. AVestcote, 2 Bos. & P. N, E. 335 109 
 
 Pennyuian v. Eabanks, Cro. Eliz. 427 ; 1 Vin. Abr. 551 . . . 143 
 
 Peppiatt and wife v. Smith, 33 L. J. Ex. 239 ... . 506, 507 
 
 Perren v. Monmouthshire Ej. Co., 11 C. B. 855 491 
 
 Perry's (Captain) Case, 2 Dick. 794 ; 2 Atk. 469 .... 429 
 
 Perryman v. Lister, L. E. 4 H. L. 521 ; 39 L. J. Ex. 177 ; 18 W. R. 
 
 Dig. 14 ; 23 L. T. 269 214, 278 
 
 Peterborough (Lord) v. AVilliams, 2 Sh(jw. 506 ; or in Butts's ed. 650 . 136 
 
 Pettibone v. Simpson, 66 Barb. 492 316 
 
 Pharmaceutical Society z'. London and Provincial Supply Association, 
 4 Q. B. D. 313 ; 48 L. J. Q. B. 387 ; 27 W. R. 709 ; 
 40 L. T. 584 369 
 
 (C. A.) 5 Q. B. D. 310 ; 49 L. J. Q. B. 338 ; 28 W. R. 
 
 608 ; 42 L. T. 569 369 
 
 (H. L.) 5 App. Cas. 857 ; 49 L. J. Q. B. 736 ; 28 
 
 W. R. 957 ; 43 L. T. 389 369 
 
 Philips V. Badby, cited 4 Rep. 19 73 
 
 Phillimore v. Machon, 1 P. D. 481 402, 403 
 
 PhiUips V. Barnet, 1 Q. B. D. 436 ; 45 L. J. Q. B. 277 ; 24 W. E. 345 ; 
 
 34 L. T. 177 152 
 
 x\ Jansen, 2 Esp. 624 65, 75, 580 
 
 f . L. & S. W. Ey. Co., 4 Q. B. D. 406 ; 48 L. J. Q. B. 693 ; 27 
 
 W. R. 797; 40 L. T. 813 . . 292 
 
 (C. A.) 5 Q. B. D. 78 ; 49 L. J. Q. B. 
 
 233 ; 28 W. E. 10 ; 41 L. T. 121 . . 292 
 
 r. Eouth, L. E. 7 C. P. 287 511 
 
 ■ and another v. Barron and another, W. N. 1876, p. 54 ; Bitt. 
 
 119 ; 20 Sol. J. 280 ; 60 L. T. Notes, 249 . 507 
 Phospliate Sewage Co. v. Hartmont, 25 W. R. 743 ... . 432 
 Pickering v. Stevenson, L. E. 14 Eq. 322 ; 41 L. J. Ch. 493 ; 20 W. E. 
 
 654 ; 26 L. T. 608 591 
 
 Pictoii V. Jackman, 4 C. & P. 257 206, 211, 279 
 
 Pierce v. Ellis, 6 Ir. C. L. R. 55 236, 241, 260 
 
 Pierpoint v. Cartwright, 5 C. P. D. 139 ; 28 W. E. 583 ; 42 L. T. 295 569 
 
 Pierrepoint's Case, Cro. Eliz. 308 59 
 
 Pine's (Hugh) Case, Cro. Car. 117 410 
 
 Pinero v. Goodlake, 15 L. T. 676 254 
 
 Pisani v. Lawson, 6 Bing. N. C. 90 ; 5 Scott, 418 . . . 356, 467 
 
 Pitt v. Donovan, 1 M. & S. 639 142 
 
 Pitten V. Chatterburg, W. N. 1875, p. 248 ; Bitt. 62 ; 1 Charley, 106 ; 
 
 20 Sol. J. 139 ; 60 L. T. Notes, 122 . . . . * . .508 
 Plum V. Normantun, Iron. Co. AV. N. 1876, p, 105 ; Bitt. 140 ; 20 
 
 Sol. J. 340 ; 60 L. T. Notes, 303 523 
 
 Plunket V. Gilmore, Fortescue, 211 8 
 
 Plunkett V. Cobbett, 2 Selw. N. P. 1042 ; 5 Esp. 136 . . . , 274 
 
 Pocock V. Nash, Comb. 253 73 
 
 Poe V. Mondlord, Cro. Eliz. 620 , . . 76 
 
 Poe's Case, 1 Vin. Abr. 440 ; 2 Buls. 206 122, 124 
 
 xlviii
 
 TABLE OF CASES. Pol— Ram. 
 
 PAGE 
 
 Polini V. Gray, 11 Ch. D. 741 ; 28 W. R. 81 ; 40 L. T. 801 . . . 4G7 
 rollard, //( re, L. R 2 P. C. 106 ; 5 JMoore, P. C, C. N. S. Ill ; 17 
 
 W. R. Dig. 4 438 
 
 V. Green, Bristol Summer Assizes, 1880 452 
 
 V. Lyon, 1 Otto, (91 U. IS.) 225 317 
 
 Pool V. Saclieverel, 1 P. Wms. 675 430 
 
 Poole V. Whitcomb, 12 C. B. N. S. 770 552 
 
 Popham V. Pickburn, 7 H. & N. 801 ; 31 L. J. Ex. 133 ; 8 Jiir. N. S. 
 
 179 ; 10 W. R. 324 ; 5 L. T. 846 . . . 165, 176, 261, 283 
 
 Poplett V. Stockdale, Ry. & Moo. 337 374 
 
 Potter V. Chambers, 4 C. P. D. 457 ; 48 L. J. C. P. 274 ; 27 W. R. 414 341 
 
 V. Cotton (C. A.) o Ex. D. 137 ; 49 L. J. Ex. 158 ; 28 W. R. 
 
 160 ; 41 L. T. 460 560 
 
 V. Home and Colonial Assurance Co., (not reporte 1) . . 492 
 
 Powell V. Jones, 1 Lev. 297 68, 75 
 
 Power V. Shaw, 1 Wils. 62 85 
 
 Pratt, m re, 7 A. & E. 27 580 
 
 V. Gardner, 2 Cush. (Mass.) 63 190 
 
 Preston v. Pinder, Cro. Eliz. 308 55, 123 
 
 Price V. Harris, 10 Bing. 331 557 
 
 V. Hutchison, L. R. 9 Ec^. 534 ; 18 W. R. 204 .... 431 
 
 V. Jenkings, Cro. Eliz. 865 . . . . . . . . 471 
 
 Prickett v. Gratrex, 8 Q. B. 1020 445 
 
 Pridham V. Tucker, Yelv. 153 ; Hob. 126 ; Cart. 214 . . . . 114 
 
 Prinne v. Howe, 1 Brown Pari. C. 64 71 
 
 Prior and another v. Wilson, 1 C. B. N. S. 95 . . . . 80, 225 
 
 Proby V. Mar<£uess of Dorchester, 1 Lev. 148 136 
 
 Prosser v. Rowe, 2 C. & P. 422 178 
 
 Proud V. Hawes, Cro. Eliz. 171 ; Hob. 140 75 
 
 Prowse V. Loxdale, 3 B. & S. 896 ; 32 L. J. Q. B. 227 . . . . 545 
 Prudential Assurance Co. v. Knott, L. R. 10 Ch. 142 ; 44 L. J. Ch. 
 
 192 ; 23 W. R. 249 ; 31 L. T. 866 . . . . 13, 15, 436, 454 
 
 Prudhomme v. Eraser, 2 A. & E. 645 339 
 
 Pudsey Coal Gas Co. v. Corporation of Bradford, L. R. 15 Eq. 167 ; 42 
 
 L. J. Ch. 293; 21 W. R. 286; 28L.T. 11 31 
 
 Purcell V. Sowler, 1 C. P. D. 781 ; (C. A.) 2 C. P. D. 215 ; 46 L. J. 
 
 C. P. 308 ; 25 W. R. 362 ; 36 L. T. 416 . . 41, 46, 165, 260, 283 
 
 Purdey v. Stacey, 5 Burr. 2698 70 
 
 Purnell v. G. W. Ry. Co. and Harris, (C. A.) 1 Q. B. D. 636 ; 45 L. J. 
 
 Q. B. 687 ; 24 W. R. 720, 909 ; 35 L. T. 605 . . . . 557 
 
 Pybus V. Scudamore, Arn. 464 529 
 
 Pye V. Wallis, Carter, 55 63 
 
 QuiN V. Hession, 4 L. R. (Ir.) 35 ; 40 L. T. 70 . . 230, 307, 494 
 
 Rafael v. Ongley, 24 W. R. 857 ; 34 L. T. 124 . . . . 460 
 
 Rainy v. Bravo, L. R. 4 P. C. 287 ; 20 W. R. 873 . . . 471, 536 
 
 V. Justices of Sierra Leone, 8 Moo. P. C. 47 . . . . 439 
 
 Ralph V. Carrick, 11 Ch. D. 873 ; 28 W. R. 67 ; 40 L. T. 505 . . 564 
 
 Ram V. Land ey, Hutt. 113 193 
 
 Ramadge v. Ryan, 9 Bing, 333 ; 2 M. & Sc. 421 . . . . 76, 559 
 Ramsay, In re, L. R. 3 P. C. 427 ; 7 Moo. P. C. N. S. 263 . . . 439 
 Ramsdale v. Greenacre, 1 F. & F. 61 . . . . 67, 69, 80, 473 
 
 xlix d
 
 Ram— R. 
 
 TABLE OF CASES. 
 
 27 
 
 Ramsdeu v. Brearlej^ (on demurrer), L. R. 10 Q. B. 147 ; 44 L. J. Q. B. 
 
 46 ; 23 W. E. 294 ; 32 L. T. 24 
 
 (as to interroj^atories), 33 L. T. 322 ; W. N. 1875, 
 
 p. 199 ; 1 Charley, 96 ; Bitt. Addenda ; 20 Sol. J. 30 . 
 Ratcliff V. Michael, Cro. Jac. 331 
 Rawlings et ux. v. Norbury, 1 F. & F. 341 
 Rea, In re John, 2 L. R. Jr. 429 ; 14 Cox, C. C. 139 . 
 
 4 L. R. Ir. 345 ; 14 Cox, C. C. 256 
 
 Read's Case, Cro. Eliz. 645 ...... 
 
 Read v. Ambridge, 6 C. & P. 308 
 
 Reade v. Woodroffe, 24 Beav. 421 .... 
 
 Redman v. Pyne, 1 Mod. 19 
 
 Redondo v. Chaytor (C. A.), 4 Q. B. D. 453 ; 48 L. J. Q. B. 697 
 
 W. R. 701 ; 40 L. T. 797 
 
 Redston v. Eliot, Cro. Eliz. 638 ; 1 Roll. Abr. 49 . 
 Reeve v. Holgate, 2 Lev. 62 .... . 
 
 Reignald's Case, Cro. Car. 563 
 
 Rendall v. Hayward, 5 Bing. N. C. 422 . 
 
 Republic of Costa Rica v. Erlanger, 1 Ch. D. 171 ; 45 L. J. Ch. 145 ; 24 
 
 W. R. 151 ; 1 Charley, 111 
 
 Republic of Liberia v. Roye, 1 App. Cas. 139 ; 45 L. J. Ch. 297 ; 24 
 
 W. E. 697 ; 34 L. T. 145 . . 
 
 Restell and wife v. Steward, (1) W. N. 1875, p. 231 ; 1 Charley, 87 ; 
 Bitt. 46 ; 20 Sol. J. 99 ; 60 L. T. Notes, 87 . 479, 
 
 (2) W. N. 1875, p. 249 ; 1 Charlev, 89 ; 
 
 Bitt. 65 ; 20 Sol. J. 140 ; 60 L. T. Notes, 123 \ 
 Revis V. Smith, 18 C. B. 126 ; 25 L. J. C. P. 195 ; 2 Jur. N. S. 614 . 
 
 77, 
 
 PAGE 
 
 346 
 
 514 
 118 
 111 
 447 
 443 
 127 
 109 
 510 
 65 
 
 356 
 121 
 124 
 124 
 559 
 
 502 
 
 431 
 
 154, 186, 236, 259, 268, 385, 
 1 Lord Raym. 486 
 
 R. V. Abingdon (Lord), 1 Esp. 226 
 
 — V. Aickies, 1 Leach, 330 
 
 — V. Alme and Nutt, 3 Salk. 224 ; 
 
 — V. Almon, 5 Burr. 26S6 161, 363, 364, 
 
 — V. Wibnot's Notes of Opinions and Judgments, p. 253 429, 
 
 — V. Amphlit, 4 B. & C. 35 ; 6 D. & R. 125 . . . . 152, 159, 
 
 — V. Annet, 3 Burn Ec. L. 386 (9th edition) 
 
 — V. Archer, 2 T. R. 203 n 
 
 — V. Aspinall, 2 Q. B. D. 48 ; 46 L. J. M. C. 145 ; 25 W. R. 283 ; 36 
 
 L. T. 297 
 
 — V. Atwood, Cro. Jac. 421 
 
 — V. Aunger, 12 Cox. C. C. 407 
 
 — V. Baker, 1 Mod. 35 
 
 — V. Baldwin, 8 A. & E. 168 591, 
 
 — V. Barker, 1 F. & F. 326 
 
 — V. Barnard, Tivies, Dec. 17, 1878, and Jan. 13, 1879 . 387, 540, 
 
 — V. Bate, 1 Dougl. 387 534, 
 
 — V. Baxter, 3 Mod. 69 
 
 — V. Bedford, Mich. 12 Ann., cited in 2 Str. 789 ... 417, 
 
 — !v. Beere, 12 Mod. 219 ; Holt. 422 ; Carth. 409 ; 2 Salk. 417, 646 ; 
 
 1 Ld. Raym. 414 .... 152, 386, 417, 418, 533, 
 
 — r. Benlield, 9 Burr. 285 
 
 — V. Bickerton, 1 Stra. 498 . 
 
 — V. Birmingham and Gloucester Rv. Co., 3 Q. B. 223 ; 10 L. J. M. C 
 
 136 . . . . ' 
 
 — V. Bliss (Clerk), K. B. MSS. 5 Geo. I. Roll. 733 ; Sid. 219 
 
 — V. Bolton, 1 Q. B. 73 
 
 481 
 
 485 
 191, 
 193 
 387 
 536 
 377 
 414 
 437 
 531 
 399 
 589 
 
 586 
 399 
 593 
 440 
 592 
 581 
 593 
 592 
 104 
 420 
 
 580 
 587 
 592 
 
 577 
 417 
 443 
 
 1
 
 TABLE OF CASES. R— R. 
 
 PACK 
 
 R. r. Boxcall, 4 A. & E. 513 578 
 
 — V. Bradlaugh and Besant, 2 Q. B. D. 569 ; 4G L. J. M. C. 286 ; 
 
 25 W. R. Dig. 91 . . . . 6, 587 
 
 (C. A.) 3 Q. B. D. G07 ; 48 L. J. M. C. 
 
 5 ; 26 W. R. 410 ; 38 L. T. 118 ; 14 
 Cox, C. C. 68 574 
 
 — V. Brewster, Dig. L. L. 76 420, 421 
 
 — V. Brooke, 2 T. R. 190 595 
 
 — V. Brown (Dr.), 11 Mod. 86 ; Holt, 425 . . . 23, 116, 411, 421 
 
 — V. Budd, 5 Esp. 230 582 
 
 — V. Bunts, 2 T. R. 683 589 
 
 — V. Burdett, 4 B. & Aid. 95, 314 . . . . 154, 386, 388, 398, 417, 
 
 419, 574, 575, 581, 589 
 
 — V. Burford, 1 Ventris, 16 441 
 
 — V. Burks, 7 T. R. 4 575 
 
 — V. Burn, 7 A. & E. 190 441, 593 
 
 — V. Canning, 19 St. Tr. 370 581 
 
 — V. Canterbury, Arclibisliop of, 11 Q. B. 649 403 
 
 — V. Carden, Sir Robert, 5 Q. B. D. 1 ; 49 L. J. M. C. 1 ; 28 W. R. 
 
 133 ; 41 L. T. 504 ; 14 Cox, C. C. 359 . . . 43, 390, 573 
 
 — V. Carlile, Mary, 3 B. & Aid. 167 . . . 250, 351, 384, 399 
 
 — V. Carlile, Richard, 3 B. & Aid. 161 ; 1 Chit. 451 . 384, 399, 401, 532 
 
 — V. Casey, 13 Cox, C. C. 614 578 
 
 — V. Castro, L. R. 9 Q. B. 219 ; 12 Cox, C. C. 358 . . . 430, 433 
 
 — V. Caudwell, 2 Den. C. C. 372, n 588 
 
 — V. Chipping Sodbury, 3 N. & M. 104 579 
 
 — V. Christian, 12 L. J. M. C. 26 580 
 
 — V. Clement, 4 B. & Aid. 218 . . . . 249, 258, 429, 431, 434 
 
 — V. Clendon, 2 Str. 789 398 
 
 — V. Clerk, 1 Barnard. 304 130, 359, 387, 413 
 
 — V. Cobbett [1804], 29 Howell's St. Tr. 1 . . . . 10, 417, 418 
 
 — V. CockshaAv, 2 N. & Man. 378 594 
 
 — V. Coghlan, 4 F. & F. 316 379 
 
 — V. Cohen and Jacob, 1 Stark. 516 585 
 
 — V. Collins, 9 C. & P. 456 415, 416, 417, 418, 419 
 
 — V. Cooper, 8 Q. B. 533 ; 15 L; J. Q. B. 206 . 25, 155, 333, 361, 363, 
 
 386, 581 
 
 — V. Creevey, 1 M. & S. 273 .... 186, 236, 250, 259, 268 
 
 — V. Cripps, Times, Nov. 4th and 18th, 1880 573 
 
 — V. Critchley, 4 T. R. 129 n 376 
 
 — V. Cruse et ux., 2 Moo. C. C. 53 ; 8 C. & P. 541 . . . .351 
 
 — V. Cuthell, 27 Howell's St. Tr. 642 10, 386 
 
 — V. Darby, 3 Mod. 139 ; Comb. 65 ; Carth. 14 . . . 376, 441 
 
 — V. Davison, 4 B. & Aid. 329 429 
 
 — V. Dean of St. Asaph, 3 T. R. 428 n. ; 4 Dougl. 73 ; 21 St. T. 1043 10, 
 
 377, 585, 586 
 
 — V. De Berenger, 3 M. & S. 67 378 
 
 — V. D'Eon, 1 Wm. Bl. 501 ; 3 Burr. 1514 ; Dig. L. L. 88 . . 383 
 
 — V. Dewhurst, 5 B. & Ad. 405 . . . ' 579 
 
 — V. Dodd, 2 Sess. Cas. 33 161, 363 
 
 — V. Dover, 2 Harg. St. Tr. 457 159 
 
 — V. Drury and others, 18 L. J. M. C. 189 ; 3 C. & K. 190 . . 587 
 
 — u Duffy, 9 Ir. L. R. 329 ; 2 Cox, C. C. 45 . . . .390,583 
 
 — r. Dugdale, 1 E. & B. 425 ; 22 L. J. M. C. 50 ; 17 Jur. 546 ; Dears. 
 
 C. C. 64 405 
 
 li d 2
 
 R— R. TABLE OF CASES. 
 
 PAGE 
 
 R. V. Eaton, 31 How. St. Tr. 927 398 
 
 — V. Edgar, 2 Sess. Cas. 29 ; 5 Bac. Abr. 199 98 
 
 — V. Eues (1732), Andr. 229 ; 4 Bac. Abr. Libel, A. (2), p. 452 . 22(j 
 
 — V. Evans and another, 8 Dowl. 451 424, 435 
 
 — V. Eve and Parlby, 5 A. & E. 780 ; IN. & P. 229 . . 593, 594 
 
 — V. Eyre, Leeds Assizes^ Times, Nov. 6, 1880 584 
 
 — V. Farr, 1 Keb. 629 .72, 440 
 
 — V. Faulkner, 2 Mont, and Ayr. 321, 322 . . . . 429, 437 
 
 — V. Fisher and others, 2 Camp. 563 ....... 255 
 
 — V. Fleet, 1 B. & Aid. 379 255 
 
 — V. Foulkes, 1 L. M. & P. 720 ; 20 L. J. M. C. 196 . . . . 578 
 
 — V. Fowler and Sexton, 4 B. & Aid. 273 588 
 
 — V. Franceys, 2 A. & E. 49 531, 591 
 
 — V. Francis, L. E. 2 C. C. R. 128 ; 43 L. J. M. C. 97 ; 22 W. R. 663 ; 
 
 30 L. T. 503 272 
 
 — V. Francklin, 9 St. Tr. 255 ; 17 Howell's St. Tr. 626 . . 414, 417 
 
 — V. Garret, Sir Baptist Hicks' Case, Hob. 215 ; Popham, 139 . . 116 
 
 — V. Gathercole, 2 Lewin, C. C. 237 .... 126, 376, 377 
 
 — V. Giidwood, 1 Leach, 169 ; East, P. C. 1120 . . . . 581, 583 
 
 — V. Goldsmith, L. R. 2 C. C. R. 79 ; 42 L. J. M. C. 94 ; 21 W. R. 
 
 791 ; 28 L. T. 881 586 
 
 — V. Goldstein, Manasseh, 3 Brod. & B. 201 ; 7 Moore, 1 ; 10 Price, 
 
 88 ; R. & R. C. C. 473 470, 574 
 
 — V. Gordon, 2 Leach, 581 530 
 
 — t'. Lord Geo. Gordon, 22 Howell's St. Tr. 177 . . . 383,427 
 
 — V. Granfield, 12 Mod. 98 441 
 
 — V. Grant and others, 5 B. & Aid. 101 ; 3 N. & M. 106 . . .584 
 
 — V. Gray, 10 Cox, C. C. 184 381 
 
 — V. Gregoiy, 8 A. & E. 907 381 
 
 — V. Griffin, 1 Sess. Cas. 257 ........ 377 
 
 — V. Gutch, Fisher, and Alexander, Moo. & Malk. 433 . 161, 364, 386 
 
 — V. Hall, 1 Str. 416 399, 535 
 
 — V. Halpin, 9 B. & C. 65 ; 4 M. & R. 8 589 
 
 ~ V. Harrison, 3 Keb. 841 ; Ventr. 324 ; Dig. L. L. 66 . . 420, 421 
 
 — V. Hart, 1 Wm. Bl. 386 232 
 
 — V. Hart and White, 30 How. St. Tr. 1168, 1345 ; 10 East, 94 . . 428 
 
 — V. Harvey and Chapman, 2 B. & C. 257 . . . 385, 414, 584 
 
 — V. Haswell and Bate, 1 Doug. 387 534, 592 
 
 — V. Head and Marks, Times, Oct. 27th & 28th, 1879 . . . . 24 
 
 — V. Hetherington, 5 Jur. 529 399, 588 
 
 — V. Hicklin, 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 . . . 6, 250, 399, 404, 407 
 
 — V. Higgins, 2 East, 5 ' . . . . 378 
 
 — V. Hobhouse, 2 Chit. 210 424 
 
 — V. Hoggan, Times, Nov. 4th, 1880 577 
 
 — 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 
 
 159, 363, 364, 365, 385, 583 
 4 Q. B. D. 42; 48 J. L. Q. B. 113 ; 27 W. R. 313 ; 39 L. T. 
 536 ; 14 Cox C. C. 185 . . . 159, 363, 364, 365, 385, 583 
 
 — V. Holland, 4 T. R. 457 577 
 
 — %\ Holt, 5 T. R. 436 384, 582, 584, 587 
 
 — V. Home, 11 St. Tr. 264 ; Cowp. 672 ; 20 HoAvell's St. Tr. 651 
 
 104, 417, 575, 595, 651 
 
 — V. Hunt and Leigh Hunt, 31 Howell's St. Tr. 408 . . . . 417 
 
 lii
 
 TABLE OF CASES. 
 
 R-E. 
 
 R. V. 
 
 — V. 
 
 Hunt and others, 3 B. & Aid. 444 
 lUve, Dig. L. L. 83 . 
 Ingram, 1 Salk. 384 
 Jaines, 5 B. & Aid. 894 
 Jeffe, 15 Vin. Abr. 89 . 
 Jenour, 7 Mod. 400 . 
 Jewell, 7 E. & B. 140 ; 26 L. J. Q 
 Jolinson, Hon. Robt., 6 East, 583 
 
 Tr. 103 
 
 7 East, 65 ; 3 Smith, 94 ; 29 Howell St. Tr. 103 
 
 Jolliffe, 4 T. R. 285 
 
 Jones, 1 Stra. 185 
 
 Joule, 5 A. &E. 539 
 
 Kearsley, Dig. L. L. 69 
 
 B. 177 
 
 2 Smith, 591 ; 29 How. St. 
 
 PAGE 
 
 579 
 399 
 351 
 434 
 
 428 
 377 
 578 
 
 41 
 
 578 
 
 581 
 
 . ' 381 
 
 431, 576 
 
 . 579 
 
 . 414 
 
 Kinnersley, 1 Wm. Bl. 294 381 
 
 Knell, 1 Barnard. 305 359, 387, 413, 617 
 
 Knight, Bac. Abridg. A. 2 (Liljel) 242 
 
 Labouchere (Lambri's Case), 14 Cox, C. C. 419 . . 392, 583 
 
 Lambert and Perry, 2 Camp. 398 ; 31 How. St. Tr. 340 
 
 27, 99, 414, 582 
 Langley, 2 Lord Raymond, 1029 ; 2 Salk. 697 ; 6 Mod. 125 ; 
 
 Holt, 654 
 Larkin, Dears. C. C. 365 ; 23 L. J. M. C. 125 . 
 
 Larrieu, 7 A. & E. 277 
 
 Latimer, 15 Q. B. 1077 ; 20 L. J. Q. B. 129 ; 15 Jur. 314 
 
 LawTence, 12 Mod. 311 
 
 Lawson, 1 Q. B. 486 
 
 441, 445 
 586, 587 
 
 . 380 
 590, 595 
 
 . 417 
 , . 381 
 
 Leafe, Andrews, 226 441 
 
 Ledger, Times, Jan. 14, 1880 50, 399 
 
 Lee, 12 Mod. 514 444 
 
 — 5 Esp. 123 244 
 
 Lefroy, Ex parte Jolliffe, L. R. 8 Q. B. 134 ; 42 L. J. Q. B. 121 ; 
 
 21 W. R. 332 ; 28 L. T. 132 441,442,446 
 
 Liverpool (Mayor of) and others, 41 L. J. Q. B. 175 ; 20 W. R. 
 
 389 ; 26 L. T. 101 591 
 
 Llanfaethly, 2 E. & B. 940 ; 23 L. J. M. C. 33 ; 17 Jur. 1123 . 536 
 
 Lofield, 2 Barnard. 128 253, 255 
 
 Lovett, 9 C. & P. 462 . . . 154, 155, 333, 386, 415, 417, 533 
 Lowe and Clements, 8 Excli. 097 ; 22 L. J. Ex. 262 . . . 356 
 
 Mann, 4 M. & S. 337 585 
 
 Marsden, 4 M. & S. 164 575 
 
 Marsliall, 4 E. & B. 475 382, 593 
 
 Martin, 2 Camp. 100 582 
 
 Matthews, 15 How. St. Tr. 1323 104 
 
 Mayo, 1 Keb. 508 ; 1 Sid. 144 440 
 
 Mtin, 3 T. R. 597 592 
 
 Moore, 3 B. & Ad. 188 326 
 
 Morton, 1 Dowl. N. S. 543 579 
 
 Moxon, 2 Mod. St. Tr. 356 399 
 
 Newhouse, 22 L. J. Q. B. 127; 1 L. & M. 129 . . . .590 
 Newman, 1 El. & Bl. 268 ; 22 L. J. Q. B. 156 ; Dears. C. C. 85 ; 
 
 17 Jur. 617 ; 3 C. & K. 252 . 171, 174, 549, 584, 588, 649 
 
 1 E. & B. 558 ; 22 L. J. Q. B. 156 .. . 584, 649 
 
 Nottingham Journal, 9 Dowl. 1042 380 
 
 Nun, 10 Mod. 186 441 
 
 liii
 
 R-R. 
 
 TABLE OF CASES. 
 
 R. V. 
 
 - V. 
 
 V. 
 
 V. 
 
 PAGB 
 
 Nutt (Eliz.), [1728] 1 Barnard. 306 ; Fitzg. 47 . . 161, 363, 413 
 
 Nutt (Richard) [1754], Dig. L. L. 68 421 
 
 Oastler, L. R. 9 (J. B. 132 ; 43 L. J. Q. B. 42 ; 22 W. R. 490 ; 29 
 
 L. T. 830 579 
 
 Odgers, 2 Moo. & Rob. 479 577 
 
 Onslow and others, L. R. 9 Q. B. 219 ; 12 Cox C. C. 358 430, 448 
 Orme and Nutt, 1 Lord Rayin. 486 ; 3 Salk. 224 .. . 377 
 Osbom, 2 Barnard. 138, 166 ; Kel. 230 . . . . 377, 381 
 
 Owen, 18 HoweU'sSt. Tr. 1203, 1228 ; Dig. L. L. 67 . 417, 423 
 
 Paine, Samuel, 5 Mod. 163 6, 154, 387 
 
 Paine, Thomas, 22 Howell's St. Tr. 358 . ■ . . .421 
 
 Palmer, 5 E. & B. 1024 579 
 
 Paty, 2 Ld. Raym. 1108 424,435 
 
 Peacham, Cro. Car. 125 ; 2 Cobbett's St. Tr. 870 
 Peltier, 28 How. St. Tr. 617 
 Penny, 1 Ld. Raymond, 153 
 Philipps, 6 East, 464 . 
 Pigott, 11 Cox, C. C. 44 . 
 Plumer, Russ. & Ry. 164 . 
 Pocock, 2 Str. 1157 
 Pooley (Bodmin, 1857) 
 Rainer, 2 Barnard. 293 ; 
 Rea (1), 2 L. R. Ir. 429 ; 
 — (2), 4 L. R. Ir. 345 ; 
 Redman, L. R. 1 C. C. R, 
 
 Dig. L. L. 125 . 
 14 Cox, C C. 139 
 14 Cox. C. C. 256 
 12 ; 39 L. J. M. C. 
 
 89 
 
 411 
 
 . 357, 383 
 
 . . 441 
 
 . 377 
 
 421, 584 
 
 . 581 
 
 . . 441 
 
 . 398 
 
 . . 422 
 
 . 447 
 
 . . 443 
 
 . 379 
 
 27, 416, 420, 423 
 
 440, 441 
 
 . 428, 441, 445 
 
 . 23, 24 
 
 . 192 
 
 . . 23 
 
 . 580 
 
 3 T. R. 428, n 
 . 10, 37 
 
 C. C. 371 
 
 V. Reeves, Peake's Add. Cas. 84 . . . 
 
 V. Revel, 1 Str. 420 
 
 V. Rogers, 2 Ld. Raymond, 777 ; 7 Mod. 28 . 
 V. Rosenberg, Times, Oct. 27th and 28th, 1879 
 ■V. Salisbury, 1 Ld. Raym. 341 
 V. Saunders, Sir T. Raym. 201 . 
 
 V. Seton, 7 T. R. 373 
 
 V. Seymore, Winchester Spring Assizes, IS&O 
 V. Shebbeare, 3 T. R. 430, n. ... 
 
 V. Sliiijlev (Dean of St. Asaph), 4 Dougl. 73 ; 
 
 St. Tr. 1043 
 
 v. Sidney, 9 How. St. Tr. 817 .. . 
 
 V. Skinner, LofFt. 55 . 
 
 V. Skipworth. L. R. 9 Q. B. 230 ; 12 Cox 
 
 V. Slaney, 5 C. & P. 213 . 
 
 V. Smitlison, 4 B. & Ad. 862 . 
 
 V. Southerton, 6 East, 126 379 
 
 V. Spencer, 8 Dowl. 127 579 
 
 V. Spragg and another, 2 Burr. 929 588 
 
 V. Stanger, L. R. 6 Q. B. 352 ; 40 L. J. Q. B. 96 ; 19 W. R. 640 : 
 
 24 L. T. 266 532, 591, 592 
 
 V. Steel, 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. Vl 
 
 35 L. T. 534 .... 
 V. Steward, 2 B. & Ad. 12 . 
 ^^ Stockdale, 22 Howell's St. Tr. 238 
 V. Sidlivan, 11 Cox, C. C. 44 ... 
 
 V. Sutton, 4 M. & S. 548 . '. . ' 582 
 
 V. Taylor, 3 B. & C. 502 ; 5 D. & R. 422 577 
 
 liv 
 
 . 179 
 377, 413 
 21 
 
 585, 586 
 
 . 386, 411 
 
 189, 191, 192 
 
 428, 430, 433 
 
 534, 580, 581 
 
 . 594 
 
 . 595 
 C. 1 ; 25 W. R. 34 ; 
 
 . . 595 
 
 . 534 
 
 423 
 
 27, 45,415, 421, 427,585
 
 TABLE OF CASES. 
 
 R— Ric 
 
 PAGE 
 
 R. V. Taylor, 1 Ventr. 293 ; 3 Keb. 607 397, 399 
 
 — V. Templar, 1 Nev. & P. 91 . . " 579 
 
 — V. Thomas, 4 M. & S. 442 578 
 
 — V. Topham, 4 T. R. 126 376, 384, 385, 576, 586 
 
 — V. Townsend, 4 F. & F. 1089 ; 10 Cox, C. C. 356 . . . . 390 
 
 — 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. 408 406 
 
 — V. Truscott, (not reported) 392, 534 
 
 — V. Tucker, Ry. & M. 134 582 
 
 — V. Tutcliin, 5 St. Tr. 527 ; 14 Howell's St. Tr. 1095 ; 2 Ld. Raym. 
 
 1061 ; 1 Salk. 50 ; 6 Mod. 268 . . . 104, 377, 410, 417, 575 
 
 — V. Unwin, 7 Dowl. 578 580 
 
 — r. Veley, 4F. &F. 1117 . 
 
 — V. Vint, 27 How. St. Tr. 627 . 
 
 — V. Waddington (1800), 1 East, 143 . 
 
 — V. (1822), 1 B. & C. 26 
 
 — V. Walter, 3 Esp. 21 . 
 
 — V. Ward, 10 Cox, C. C. 42 . 
 
 — V. Watson (1808), 1 Camp. 215 . 
 
 — V. Watson, James (1817), 2 Stark. 116 
 
 — V. Watson and others (1788), 2 T. R. 199 
 ~ V. Webster, 3 T. R. 388 , 
 
 — V. Wegener, 2 Stark. 245 
 
 — V. AYeltje, 2 Camp. 142 
 
 — c. Whalley and others, L. R. 9 Q. B. 219 ; 12 Cox, C. C 
 
 — V. Wliite and others, 1 Camp. 359 .... 
 
 — V. Whitehouse and Tench, Dears. C. C. 1 
 
 — V. Wiatt, 8 Mod. 123 
 
 — V. Wilkes, 4 Burr. 2527 ; 2 Wils. 151 
 
 — V. Willett, 6 T. R. 294 
 
 . . 229 
 . 383 
 
 . 378, 587 
 
 . 398, 401 
 
 159, 364, 380 
 
 . 379 
 
 . . 581 
 
 . 535 
 
 97, 381, 428, 535, 581 
 
 . 592 
 
 383, 575, 580 
 
 . 440 
 
 358 430, 448 
 
 . 45, 381, 427 
 
 588 
 
 161,386 
 399, 404, 414, 574, 577, 595 
 591 
 
 381, 592 
 
 6, 397, 399, 401 
 
 . . 589 
 
 Williams, 5 B. & Aid. 595 
 
 — V. 26 How. St. Tr. 656 
 
 — V. Loft. 759 
 
 — V. 2 Roll. Rep. 88 
 
 — V. John, Dig. L. L. 69 . . . . . 
 
 — V. Sir Wm. (1686), 2 Shower, 471 ; Comb. 18 ; 13 How 
 
 St. Tr. 1370 
 
 — V. Wilson, 14 L. J. M. C. 3 
 
 — V. 2 Moo. C. C. 52 
 
 _ y. 4 T. R. 487 
 
 — V. Winterbotham, 22 How. St. Tr. 875 .. . 
 
 — ('. Withers, 3 T. R. 428 
 
 — V. Woodfall, 5 Burr. 2661 
 
 — V. Woolmer, 12 A. & E. 422 
 
 — V. Woolston, 2 Str. 834 ; Fitzgib. 66 ; 1 Barnard. 162 
 
 — V. World, The, 13 Cox, C. C. 305 .... 
 
 — V. Wrennum, Pop. 135 
 
 411 
 
 414 
 
 187 
 
 . 580 
 
 . . 123 
 
 . 589 
 
 . . 421 
 
 . 585, 589 
 
 414, 585 
 
 . 592 
 
 397, 398, 399 
 
 . 594 
 
 . . 428 
 
 Wright, 8 T. R. 293 187, 243, 259, 382 
 
 — V. Wrightson, 2 Salk. 698 ; 11 Mod. 166 ; 2 Roll. Rep. 78 ; 4 Inst. 
 
 181 440 
 
 — V. Yates, 12 Cox, C. C. 233 379, 575 
 
 Reynolds v. Harris, 3 C. B. N. S. 279 ; 28 L. J. C. P. 26 . . . 341 
 Rhodes t). Bryant, 2 F. & F. 205 . ^65 
 
 V. Livei'pool Investment Co., 4 C. P. D. 425 . . . . 
 
 Rice V. Pidgeon, Comb. 161 ........ 
 
 Iv 
 
 569 
 
 80
 
 Ric-Rus. TABLE OF CASES. 
 
 Eicliards v. Morgan, 4 B. & S. 641 ; 33 L. J. Q. B. 114 ; 12 W. E. 162 ; 
 
 9 L. T. 662 518 
 
 V. Eicliards, 2 M. & Eob. 557 . . . . 165, 231, 233, 306 
 
 Eicbardson v. Allen, 2 Chit. 657 123 
 
 V. Willis, L. E. 8 Ex. 69 ; 42 L. J. Ex. 15, 68 ; 27 L. T. 
 
 828 ; 12 Cox, C. C. 298, 351 590 
 
 Eiclimond (Duke of) V. Costelow, 11 Mod. 235 136 
 
 Eiding V. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 W. E. 487 ; 34 L. 
 
 T. 500 . . . .78, 84, 86, 91, 314, 315, 329, 330, 349, 359 
 
 Eiley v. Byrne, 2 B. & Ad. 779 550 
 
 V. Lewis, 1 Vin. ALr. 396 85 
 
 Risk Allah Beyi'. Johnstone, 18 L. T. 620 . . . . 300, 547, 560 
 
 ■' V. Whitehurst and others, 18 L. T. 615 . . 45, 252, 297 
 
 Eoach V. Garvan, Bead & Hiiggonsou, 2 Atk. 469 ; 2 Dick. 794 . . 123, 
 
 130, 429, 4.54 
 Eoherts v. Brown, 10 Bing. 5j9 ; 4 M. & Scott, 407 ; 6 C. & P. 757 . 177, 
 
 255, 528 
 
 V. Camden, 9 East, 93 56, 57, 97, 125 
 
 r. Evans, 7 Ch. D. 830 ; 47 L. J. Ch. 469 ; 26 W. R. 280 ; 38 
 
 L. T. 99 346 
 
 V. Herliert, Sid. 97 ; S. C, suh nom. Cans v. Roberts, 1 Keb. 
 
 418 59, 85 
 
 and wife v. Roberts, 5 B. & S. 384 ; 33 L. J. Q. B. 249 ; 10 
 
 Jnr. N. S. 1027 ; 12 W. E. 909 ; 10 L. T. 602 . 86, 312, 325 
 Robertson v. M'Dongall, 4 Bing. 670 ; 1 M. & P. 692 ; 3 C. & P. 259 
 
 237, 281 
 
 V. Wylde, 2 M. & Rob. 101 270, 297 
 
 Robinson v. Jermyn, 1 Price, 11 . 25 
 
 ■ ■ r. Jones, 4 L. E. Ir. 391 . . . . 151, 240, 283, 284, 532 
 
 V. Marchant, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 156 
 
 8, 78, 324. 365, 367 
 
 Robinson's Case, 1 Bro-mi, 643 399 
 
 Robshaw v. Smith, 38 L. T. 423 204, 205, 207, 615 
 
 Rodriguez v. Tadmire, 2 Esp. 721 305 
 
 Rogers v. Clifton (Sir Gervas), 3 B. & P. 587 . . . 203, 232, 268, 275 
 
 V. Gravat, Cro. Eliz. 571 59 
 
 Rolin and another v. Steward, 14 C. B. 595 ; 23 L. J. C. P. 148 ; 18 
 
 Jur. 576 ; 2 C. L. R. 759 8 
 
 Rollins r. Hinks, L. R. 13 Eq. 355 ; 41 L. J. Ch. 358 ; '10 W. R. 287 ; 
 
 26 L. T. 56 144 
 
 Ross V. Lawrence, (1651) Sty. 263 470 
 
 Rotherham v. Priest, 49 L. J. C. P. 104 ; 28 W. R. 277 ; 41 L. T. 588 495 
 
 Roupell V. Parsons, 24 W. R. 269 ; 34 L. T. 56 553 
 
 Rourke v.JVhite MossCoUiery Co., (C. A.) 1 C. P. D. 556, 562 . . 564 
 
 .15 
 
 . 56 
 
 . 472 
 
 . 281 
 113, 540 
 
 . 164 
 T. 
 
 Routh V. Webster, 10 Beav. 561 
 
 Rowcliffe V. Edmonds et nx., 7 M. & "W. 12 ; 4 Jnr. 684 . 
 
 Rowe r. Roach, 1 M. & S. 304 
 
 Ruckley v. Kiernan, 7 Ir. C. L. R. 75 
 
 Rnel V. Tatnell, 29 W. R. 172 ; 43 L. T. 507 . . 81, 102, 
 
 Runkle v. Meyers, 3 Yeates, (Penn.) 518 .... 
 
 Runtz V. Sheffield, (C. A.) 4 Ex. D, 150 ; 48 L. J. Ex. 385 ; 40 L 
 
 539 499 
 
 Russell et ux. v. Come, 1 Salk. 119 ; 6 Mod. 127 ; 2 Ld. Raym. 1031 . 348 
 
 (Sir William) i\ Ligon, 1 Roll. Abr. 46 ; 1 Yin, Abr. 423 . . 56 
 
 • and another v. Webster, 23 W. R. 59 . . . 33, 105, 370 
 
 Ivi
 
 TABLE OF CASES. Rus— Sha. 
 
 PAGE 
 
 Rustell V. Macquister, 1 Camp. 49 n 273 
 
 Rutlierford v. Evans, 6 Bing. 451 ; 8 L. J. Old S. C. P. 86 ; 4 M. & 
 
 P. 163 ; 4 C. & P. 74 . . .23, 69, 329, 330, 471, 531 
 
 V. Wilkie, 41 L. T. 435 342 
 
 Butter V. Chapman, 8 M. & W. 38 551 
 
 Ryalls V. Leader and others, L. R. 1 Ex. 2!J6 ; 4 H. & C. 555 ; 35 L. 
 
 J. Ex. 185 ; 12 Jur. N. S. 503 ; 14 W. R. 838 ; 14 L. T. 563 . . 248 
 
 St. Nazaire Co., In re, 12 Ch. D. 88 ; 27 W. R. 854 ; 41 L. T. 110 . 337 
 
 Salmon v. Isaac, 20 L. T. 885 194, 251, 269 
 
 Saltash, Corjioration of, v. Goodman and another, 43 L. T. 464 ; W. N. 
 
 1880, p. 167 563 
 
 Salter v. Brown, Cro. Car. 436 ; 1 Roll. Abr. 37 ... . 58, 85 
 Sampson v. Mackav, L. R. 4 Q. B. 643 ; 10 B. & S. 694 ; 38 L. J. Q. 
 
 B. 245 ; 17 W. R. 883 ; 20 L. T. 807 334 
 
 Sanderson v. Caldwell, 45 N. Y. 398 71 
 
 Sandford v. Bennett, 24 New York, 20 355 
 
 Sands V. Child and others, 3 Lev. 352 359 
 
 Saner v. Bilton, II Ch. D. 416 ; 48 L. J. Ch. 545 ; 27 W. R. 472 ; 40 
 
 L. T. 134 342 
 
 Saull V. Browne, L. R. 9 Ch. 364 510 
 
 Saunders v. Bate, 1 H. & N. 402 470, 537 
 
 V. Edwards, 1 Sid. 95 106, 456 
 
 ■ r. Jones, (C. A.) 7 Ch. D. 435 ; 47 L. J. Ch. 440 ; 26 W. R. 
 
 226 ; 37 L. T. 395, 769 506, 512 
 
 V. Mills, 3 M. & P. 520 ; 6 Ring. 213 . . 159, 176, 253, 303 
 
 Savage v. Robery, 5 Mod. 392 ; 2 Salk. 694 61, 80 
 
 Savile v. Jardine, 2 H. BL 531 61, 80, 82, 295 
 
 Saville d ux. v. Sweeny, 1 N. & M. 254 ; 4 B. & Ad. 514 . . . 349 
 Saxby v. Easterbrook, 3 C. P. D. 339 ; 27 W. R. 188 . 13, 16, 454 
 
 Save & Seal, (Viscount), v. Stephens, Ley, 82 ; Cro. Car. 135 . 135, 455 
 
 Saver v. Begg, 15 Ir. C. L. R. 458 232 
 
 Scarll r. Dixon, 4 F. & F. 250 . . . 211,223,224,239,271,287 
 
 Scot et ux. V. Hilliar, Lane. 98 ; 1 Vin. Abr. 440 . . . . 55, 123 
 Scott V. Royal Wax Caudle Co., 1 Q. B. D. 404 ; 45 L. J. Q. B. 586 ; 
 
 24 W. R. 668 ; 34 L. T. 683 461 
 
 v: Shepherd, 1 Sm. L. C. 8th edition, 466 ; 2 Wm. Bl. 892 ; 3 
 
 Wils. 403 329 
 
 V. Stansfield, L. R. 3 Ex. 220 ; 37 L. J. Ex. 155 ; 16 W. R. 911 ; 
 
 18 L. T. 572 189, 497 
 
 Seaman v. Bigg, Cro. Car. 480 77 
 
 V. Netherclift, 1 C. P. D. 540 ; 45 L. J. C. P. 798 ; 24 W, R. 
 
 884 ; 34 L. T. 878 . . 188, 191, 192, 484, 534 
 
 (C. A.), 2 C. P. D. 53 ; 46 L. J. C. P. 128 ; 25 
 
 W. R. 159 ; 35 L. T. 784 . . . . 189, 191, 192, 584, 534 
 
 Senior v. Medland, 4 Jur. N. S. 1039 . . . 229, 236, 279, 282 
 Seven Bishops' Case, 4 St. Tr, 300 . . . . . . 534, 581 
 
 Sewers, Commissioners of, v. Glasse, L. R. 15 Eij. 302 ; 42 L. J. Ch. 
 
 345 ; 21 W. R. 520 ; 28 L. T. 433 506 
 
 Seymour v. Butterworth, 3 F. & F. 372 43, 44 
 
 V. Coulson (C. A.), 28 W. R. 664 569 
 
 Shackell v. Rosier, 3 Scott, 59 ; 2 Ring. N. C. 62 1 . . 359, 374 
 Shaw V. Hope, 25 W. R. 729 562 
 
 V. Shaw, 31 L. J. Pr. & Matr. 35 ; 2 Sw. & Tr. 515 ; 6 L. T. 477 430 
 
 V. Thompson, Cro. Eliz. 609 56 
 
 Ivii
 
 She— Smi. TABLE OF CASES. 
 
 PACK 
 
 Shealian V. Ahearne, 9 Ir. Rep. C. L. 412 . . . . . 90,474 
 Shepheard v. Wliitaker, L. E. 10 C. P. 502 ; 32 L. T. 402 ; 23 W. 
 
 R. Di^. 73 7, 31, 153, 362 
 
 SheriiY of Surrey, In re, 2 F. & F. 234, 237 431, 433 
 
 Sheward v. Earl of Lonsdale, 5 C. P. D. 47 ; 28 W. R. 324 ; 42 L. T. 
 
 54 508, 533 
 
 Shipley v. Todliunter, 7 C. & P. 680 154, 235, 281 
 
 Sibley v. Tomlins, 4 Tyr. 90 67, 81, 108 
 
 Sibtliorpe's Case, W. Jones, 366 ; RoU. Abr. 76 .... 72 
 
 Siddons V. Lawrence, 3 Q. B. D. 100 ; 4 Ex. D. 177 ; 48 L. J. Q. B. 
 
 161, 446 ; 27 W. R. 191, 247 ; 39 L. T. 608 ; 40 L. T. 795 . . 336 
 Sidnam v. Mayo, 1 Roll Rep. 427 ; 1 Roll. Abr. 49 . . . .125 
 Sidney's (Alt^ernon) Case, 9 How. St. Tr. 817 . . . 386,411 
 
 Silver Lead Ore Co., In re, 10 Ch. D. 307, 312 565 
 
 Simnionds v. Dunne, Ir. R. 5 C. L. 358 ... 200, 242, 279, 484 
 
 Simmons v. Sweete, Cro. Eliz. 78 . . . . . .441 
 
 Simpson v. Downs, 16 L. T. 391 241 
 
 V. Fogo, 32 L. J. Ch. 249 ; 1 H. & M. 195 ; IJ. & H. 18 ; 11 
 
 W. R. 418 ; 8 L. T. 61 ; 9 Jur. N. S. 403 ; 1 N. R. 422 439 
 
 V. Robinson, 12 Q. B. 511 ; 18 L. J. Q. B. 73 ; 13 Jur. 187 
 
 178, 275, 297, 542 
 
 Sims x\ Prosser, 15 M. & W. 151 464 
 
 Sivier v. Harris, W. N. 1876, p. 22 ; Bitt. 98 ; 20 Sol. J. 240 ; 60 
 
 L. T. Notes, 213 507 
 
 Skinner v. Kitch, L. R. 2 Q. B. 393 ; 36 L. J. M. C. 322 ; 15 W. R. 
 
 830 ; 16 L. T. 413 149 
 
 V. Shoppee d ux. 6 Bing. N. C. 131 ; 8 Scott, 275 . . . 339 
 
 Skipworth's Case, L. R. 9 Q. B. 230 ; 12 Cox C. C. 371 . 428, 430, 433 
 
 Slade V. Tucker, 14 Ch. D. 824 ; 49 L. J. Ch. 644 ; 28 W. R. 807 ; 43 
 
 L. T. 49 518 
 
 Slater u Franks, Hob. 126 Ill 
 
 Slocomb's Case, Cro. Car. 442 119 
 
 Sloman v. Governor of New Zealand, 1 C. P. D. 563 ; 46 L. J. C. 
 
 P. 185 ; 25 W. R. 86 ; 35 L. T. 454 ; Bitt. 15 . . . .460 
 
 Slowman v. Dutton, 10 Bing. 402 106 
 
 Smith, Ex parte, In re Bishop, 13 Ch. D. 110 ; 49 L. J. Bkcy. 1 ; 28 
 
 W. R. 174 ; 41 L. T. 388 432 
 
 V. Andrews, 1 Roll. Abr. 54 ; Hob. 117 75 
 
 V. Ashley, 52 Mass. (11 Met.) 367 . . . . 159, 387, 617 
 
 V. Berg, 25 W. R. 606 ; 36 L. T. 471 515 
 
 V. Dobbin, 3 Ex. D. 338 ; 47 L. J. Ex. 65 ; 26 W. R. 122 ; 37 
 
 L. T. 777 462 
 
 • V. Flynt, Cro. Jac. 300 58 
 
 V. Harrison, 1 F. & F. 565 297, 497 
 
 V. Hodgeskins, Cro. Car. 276 221, 267 
 
 V. Knowelden, 2 M. & Gr. 561 471, 537 
 
 V. Lakeman, 26 L. J. Ch. 305 ; 2 Jur. N. S. 1202 ; 28 L. T. 
 
 Old S. 98 430 
 
 V. Mathews, 1 M. & Rob. 151 .. . 80, 168, 231, 233, 276 
 
 V. Parker, 13 M. & W. 459 ; 14 L. J. Ex. 52 ; 2D. & L. 394 . 171 
 
 ■ 1'. Scott, 2 C. & K. 580 248, 304 
 
 V. Spooner, 3 Taunt. 246 141 
 
 V. Taylor, 1 B. & P. N. R. 196 530 
 
 V. Thomas, 2 Scott, 546 ; 4 Dowl. 333 ; 2 Bing. N. C. 372 ; 
 
 1 Hodges, 353 291, 484
 
 TABLE OF CASES. Smi— Sta. 
 
 PAOB 
 
 Smith V. Ward, Cro. Jac. 674 109 
 
 V. Woo<I, 3 Camp. 323 168, 232 
 
 and others v. Richardson, 4 0. P. D. 112 ; 48 L. J. C. P. 140 ; 
 
 27 W. R. 230 ; 40 L. T.,256 ; Willes, 20 . . . 499, 549 
 
 Snag V. Gee, 4 Rep. 16 62 
 
 V. Gray, 1 Roll. Abr. 57 ; Cro. Entr. 22 74 
 
 Sneesby v. Lane. & York. Ry. Co., L. R. 9 Q. B. 263 ; 43 L. J. Q. B. 
 
 69 ; 22 W. R. Dig. 206 ; 30 L. T. 492 . . . . 327 
 
 (C. A.) 1 Q. B. D. 42 ; 45 L. J. Q B. 41 ; 24 W. R. 99 ; 33 
 
 L. T. 372 327 
 
 Snell V. WebHng, 2 Lev. 150 ; 1 Ventr. 276 124 
 
 Snowdon v. Smith, 1 M. & S. 286 305 
 
 Snyder v. Andrews, 6 Barbour (New York), 43 152 
 
 Soane v. Knight, Moo. & Mai. 74, 187 49 
 
 Solomon v. Lawson, 8 Q. B. 823 ; 15 L. J. Q. B. 253 ; 10 Jur. 796 . 31, 
 
 119,127,132,470,471 
 Solomons and others V. Medex, 1 Stark. 191 .... 324,367 
 Somers v. Holt, 3 Dowl. 506 356 
 
 V. House, Holt, 39 55, 96 
 
 Somerville v. Hawkins, 10 C. B. 583 ; 20 L. J. C. P. 131 ; 15 Jur. 450 ; 
 
 16 L. T. Old S. 283 202, 226, 270, 544 
 
 Southam v. Allen, Sir T. Raym., 231 .... 79, 205, 206 
 
 Southeet?. Denny, 1 Ex. 196; 17 L.J. Ex. 151 76 
 
 Souther V. Sherwood, 2 Mer. 435 14, 674 
 
 Southwark & Vauxhall Water Co. v. Quick, 3 Q. B. D. 315 ; 47 L. J. 
 
 Q. B. 258 ; 26 W. R. 328, 341 ; 38 L. T. 81« 518 
 
 Spackman v. Gibney, Bristol Spring Assizes, 1878 . . 484, 535, 607 
 
 Spall V. Massey, 2 Stark. 559 8 
 
 Sparling v. Haddon, 9 Bing. 11 ; 2 Moo. & Sc. 14 . . . . 531 
 Speaker of the Leoislati\'e Assembly of Victoria v. Glass, L. R. 3 P. 
 
 C. 560 ; 40 L. J. P. C. 17 ; 24 L. T. 317 425 
 
 Speck V. Phillips, 7 Dowl. 470 304 
 
 Spencer v. Amerton, 1 M. & Rob. 470 237 
 
 Spill V. Maule, L. R. 4 Ex. 232 ; 38 L. J. Ex. 138 ; 17 W. R. 805 ; 
 
 20 L. T. 675 235, 271, 280, 282 
 
 Spiller V. Paris Skating Rink Co. W. N. 1880, p. 228 . . . . 527 
 
 Sprightly V. Dunch, 3 Burr. 1116 464 
 
 Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551 ; 37 L. J. Ch. 889 ; 
 
 16 W. R. 1138 ; 19 L. T. 64 .... 14, 15, 149, 358 
 
 Spurr V. Hall, 2 Q. B. D. 615 ; 46 L. J. Q. B. 693 ; 26 W. R. 678 ; 
 
 37 L. T. 313 492 
 
 Sc^uire v. Johns, Cro. Jac. 585 . . . . . • • .126 
 Stace V. Grithth, L. R. 2 P. C. 420 ; 6 Moore, P. C. C. X. S. 18 ; 20 
 
 L. T. 197 212, 536 
 
 Stainbank v. Beckett, Bart. Weekly Notes, 1879, p. 203 . . .481 
 Stainton et ux. v. Jones, 2 Selw. N. P. 1205 ; 1 Dougl. 380 n. . 59, 85 
 
 Stamp and wife v. White and wife, Cro. Jac. 600 . . . . 62, 96 
 Standard Discount Co. v. La Grange (C. A.), 3 C. P. D. 71 ; 47 L. J. 
 
 C. P. 3 ; 26 W. R. 25 ; 37 L. t. 372 562 
 
 Stanhope v. Blith, 4 Rep. 15 60, 61, 82, 123 
 
 Stanley v. Boswell, 1 Roll. Abr. 55 71 
 
 V. Webb, 4 Sandf. (N. Y.) 21 99 
 
 Stannus v. Finlay, Ir. R. 8 C. L. 264 483, 550 
 
 Stanton v. Smith", 2 Ld. Raym. 1480 ; 2 Str. 762 . . . . 70, 78 
 Staples V. Yuuug, 2 Ex. D. 324 ; 25 W. R. 304 342 
 
 lix
 
 Sta— Sum. TABLE OF CASES. 
 
 PAGE 
 
 Stapleton v. Frier, Cro. Eliz. 251 56, 121 
 
 Stebbiug v. Warner, 11 Mod. 255 61, 122 
 
 Steele v. Brannan, L. R. 7 C. P. 261 ; 41 L. J. M. C. 85 ; 20 AV. R. 
 
 607 ; 26 L. T. 509 6, 250, 399, 407, 408 
 
 Stein V. Tabor, 31 L. T. 444 509 
 
 Stennel v. Hogg, 1 Wms. Saunders, 228 586 
 
 Stern v. Sevastoimlo, 14 C. B. N. S. 737 ; 32 L. J. C. P. 268 ; 11 W. R. 
 
 862 ; 10 Jur. N. S. 317 ; 8 L. T. 538 503 
 
 Sterry v. Foreman, 2 C. & P. 592 310, 322 
 
 Steuart v. Gladstone, 7 Cli. D. 394 ; 47 L. J. Ch. 154 ; 26 W. R. 277 ; 
 
 37 L. T. 575 527 
 
 Stevens v. Sampson, 5 Ex. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. R. 87 ; 41 
 
 L T. 782 186, 194, 209, 257, 269, 276 
 
 Steward v. Young, L. R. 5 C. P. 122 ; 39 L. J. C. P. 85 ; 18 W. R. 
 
 492 ; 22 L. T. 168 142, 145, 226 
 
 Stiles V. Nokes, 7 East, 493 ; S. C. sub nam. Carr v. Jones, 3 Smith, 
 
 491 24, 46, 176, 255 
 
 Stirling v. Du Barry, (C. A.) 5 Q. B. D. 65 ; 28 W. R. 404 . . . 499 
 
 Stober v. Green, 1 Brownl. & Golds. 5 80 
 
 Stockdale v. Hansard (1837), 7 C. & P. 731 ; 2 M. & Rob. 9 ; (1839) 
 
 9 A. & E. 1 ; 2 P. & D. 1 ; 3 Jur. 905 . 187, 423, 424, 425, 435 
 (1840) 11 A. & E. 253 ; 8 Dowl. 148, 522 . . . 187 
 
 T. Onwbvn, 5 B. &C. 173; 7D. &R.625;2C. &P. 163 . 374 
 
 • • V. Tart 6,^4 A. & E. 1016 170, 253 
 
 Stocken V. Collin, 7 M. & W. 515 ; 10 L. J. Ex. 227 . . . . 581 
 Stocldcyi'. Clement, 4 Bing. 162; 12 Moore, 376 . . . 127,226 
 
 Stockton Iron Furnace Co., In re (C. A)., 10 Ch. D. 335, 348 ; 48 
 
 L. J. Ch. 417 ; 27 AV. R. 433 ; 40 L. T. 19 563 
 
 Stokes V. Grant and others, 4 C. P. D. 25 ; 27 AV. R. 397 ; 40 L. T. 
 
 36 477,496 
 
 Stone 17. Cooper, 2 Denio, (N. Y.) 293 71,112 
 
 V. Smalcombe, Cro. Jac. 648 . . . . . . . . 122 
 
 V. Yeovil (Mayor of), 1 C. P. D. 691 ; 45 L. J. C. P. 657 ; 24 
 
 AV. R.1073 ; 34 L. T. 874 . . . 317 
 
 (C. A.) 2 C. P. D. 99 ; 46 L. J. C. P. 137 ; 
 
 25 AV. R. 240 ; 36 L. T. 279 . . 317 
 
 Stoner v. Audeley, Cro. Eliz. 250 124 
 
 Stooke V. Taylor, 5 Q. B. D. 569 ; 49 L. J. Q. B. 857 ; 29 AV. R. 49 ; 
 
 43 L. T. 208 342 
 
 Storey w. Challands, 8 C. & P. 2.34 206,208,209,311 
 
 Strauss v. Francis (No. 1), 4 F. & F. 939 ; (No. 2), ih., 1107 ; 15 L. T. 
 
 674 48, 545, 550 
 
 L. R. 1 Q. B. 379 ; 35 L. J. Q. B. 133 ; 12 Jur. N. S. 
 
 486 ; 14 AV. R. 634 ; 14 L. T. 326 .. . 550 
 Street v. Licensed Victuallers' Society, 22 AV. R. 553 . . 99, 252 
 
 Strode u Holmes, Stjde, 3.38 ; 1 Roll Abr. 58 71 
 
 Stuart V. Lovell, 2 Stark. 93 49, 99, 273, 296 
 
 Stubbst). Marsli, 15 L. T. 312 355 
 
 Stuckley v. Bullhead, 4 Rep. 16 70 
 
 Sturla V. Freccia, 11 Ch. D. 741 ; 28 AV. R. 81 ; 40 L. T. 861 . . 467 
 
 Sturton (Lord) v. Chaffin, Moore, 142 125 
 
 Suegos' Case, Hetl. 175 76 
 
 Sugg V. Silber, 1 Q. B. D. 362 ; 45 L. J. Q. B. 4G0 ; 24 AV. R. 640 ; 
 
 34 L. T. 682 523 
 
 Summers v. City Bank, L. R. 9 C. P. 580 ; 43 L. J. C. P. 261 . 32, 81, 319 
 
 Ix
 
 TABLE OF CASES. Sur— Tho. 
 
 PAOB 
 
 Surman v. Shelleto, 3 Burr. 1688 80 
 
 Surrey, re the Sheriff of, 2 F. & F. 234 431, 433 
 
 Sutton V. Johnstone, 1 T. R. 493 195 
 
 V. Plumridge, 16 L. T. 741 212 
 
 Swann v. Vines, Nov. 1877, cited, 37 L. T. 469 535 
 
 Swansea (Mayor of) v. Quirke, 5 C. P. D. 106 ; 49 L. J. C. P. 57 ; 28 
 
 W. R. 371 ; 41 L. T. 758 502 
 
 Sweetapple v. Jesse, 2 N. & M. 36 ; 5 B. & Ad. 27 . . . . 114 
 
 Swithin ei !(x\ i". Vincent e^ MX., 2 Wils. 227 .... 351,371 
 
 Sydenham v. Man, Cro. Jac. 407 537 
 
 Sykes v. Sykes, L. R. 4 C. P. 645 ; 38 L. J. C. P. 281 ; 17 W. R. 799 ; 
 
 20 L. T. 663 566 
 
 Symmons v. Blake, 2 C. M. & R. 416 ; 1 M. & Rob. 477 ; 4 Dowl. 
 
 263 ; 1 Gale, 182 99, 273, 296 
 
 Taaffe v. Downes, 3 Moo. P. C. C. 36 n 189 
 
 Tabart v. Tipper, 1 Camp. 350 37, 536 
 
 Tait V. Culbertson, 57 Barl). 9 372 
 
 Talbot V. Case, Cro. Eliz. 823 62 
 
 Talbutt V. Clark, 2 M. & Rob. 312 159, 303 
 
 Tardrew v. Brook, 5 B. & Ad. 880 550 
 
 Tarleton v. McGawlev, Peake, 270 31, 149, 322 
 
 Tarpley v. Blabey, 2 Bing. N. C. 437 ; 2 Scott, 642 ; 1 Ho<I-es, 414 
 
 155, 276, 307, 361, 533 
 
 Tasburgh v. Day, Cro. Jac. 484 138 
 
 Tate V. Humphrey, 2 Camp. 73 n. 277 
 
 Taylor v. Batten (C. A.) 4 Q. B. D. 85 ; 48 L. J. Q. B. 72 ; 27 
 
 W. R. 106 ; 39 L. T. 408 521 
 
 V. Carr, 3 Up. Can. Q. B. Rep. 306 71 
 
 V. Cass, L. R. 4 C. P. 614 ; 17 W. R. 860 ; 20 L. T. 667 . . 337 
 
 V. Hall, 2 Str. 1189 63 
 
 V. Hawldns, 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 746 
 
 203, 232, 269, 281, 285 
 ■ V. How, Cro. Eliz. 861 ; 1 Vin. Abr. 464 71 
 
 V. Jones, 1 C. P. D. 87 ; 45 L. J. C. P. 110 ; 34 L. T. 131 . 499 
 
 V. Neri, 1 Esp. 386 322 
 
 V. Perkins, Cro. Jac. 144 ; 1 Roll. Abr. 44 . . . 63, 126 
 
 . V. Perr, 1 Roll. Abr. 44 . . . ... 63, 66 
 
 V. Starkey, Cro. Car. 192 75 
 
 Taylor's Case, 8 Ch. D. 643 ; 47 L. J. Ch. 701 ; 26 W. R. 601 ; 38 
 
 L. T. 587 563 
 
 Teacy v. McKenna, Ir. Rep. 4 C. L. 374 23, 94 
 
 Tempest v. Chambers, 1 Stark. 67 57, 125 
 
 Terry v. Hooper, 1 Lev. 115 . . 80 
 
 TerwiUiger v. Wands, 3 Smitli (17 N. Y. R.), 54 . . 20, 313, 332 
 
 Tetley v. Easton, 25 L. J. C. P. 293 509 
 
 Theodor Korner, The, 3 P. D. 162 ; 47 L. J. P. M. 85 ; 38 L. T. 818 519 
 
 Theyer v. Eastwick, 4 Burr. 2032 59, 85 
 
 Thomas v. Churton, 2 B. & S. 475 ; 31 L. J. Q. B. 139 ; 8 Jur. N. S. 
 
 189 
 80 
 
 458 
 
 795 
 
 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. 605 ; 28 W. R 
 
 983 ; 43 L. T. 91 16, 334, 454 
 
 Thompson v. Bernard, 1 Camp. 48 109 
 
 Ixi
 
 Tho-Tur. TABLE OF CASES. 
 
 PAGE 
 
 Tlioinpson r. Nye, 16 Q. B. 175 ; 20 L. J. Q. B. 85 ; 15 Jur. 285 . 305 
 
 V. Shackell, Moo. & Mai. 187 49 
 
 ■ r. Tweui^e, 2 It oil. Eei). 433 78 
 
 Thorley v. Lord Kerry, 4 Taunt. 355 ; 3 Camp. 214, n. . . 5, 22 
 
 Thorley's Cattle Food Co. v. Massam, (interloc.) 6 Ch. D. 582 ; 46 
 
 L. J. Ch. 713 15, 16, 148 
 
 (before Malius, V. C.) 14 Cli. D. 763; 28 
 
 W. R. 295 ; 41 L. T. 542 . . 15, 16, 148 
 
 (C. A.) 14 Ch. D. 781 ; 28 W. U. 966 ; 42 L. T. 
 
 851 15, 16, 148 
 
 Thorn v. Blanchard, 5 Johns. (Amer.) 508 193 
 
 Thornton v. Stephen, 2 M. & Rob. 45 545 
 
 Thorpe v. Macaulay, 5 Madd. 230 516, 527 
 
 Thurmant). Wild, 11 A. &E. 453 489 
 
 Tibbott V. Haynes, Cro. Eliz. 191 56 
 
 Tibbs V. Browne, 2 Grant (Penns.), 39 347 
 
 V. Smith, 3 Salk. 325 ; Sir T. Raym. 33 122 
 
 Tichbome v. Mostyn, L. R. 7 Eq. 55 n. ; 15 W. R. 1072 ; 17 L. T. 5 429 
 
 V. Tichborne, 39 L. J. Ch. 398 ; 18 W. R. 621 ; 22 L. T. 55 429 
 
 Tidman v. Ainslie, 10 Ex. 63 165, 174 
 
 Ti-he V. Cooper, 7 El. & Bl. 639 ; 26 L. J. Q. B. 215 ; 3 Jur. N. S. 
 
 716 ; 5 W. R. Dis;. 195 173, 487 
 
 V. Wicks, 33 Up. Can. Q. B. Rep. 470 . . . . 66, 73 
 
 Tildesley v. Harper, (C. A.) 10 Ch. D. 393 ; 48 L. J. Ch. 495 ; 27 
 
 W. R. 249 ; 39 L. T. 552 499 
 
 Tilk V. Parsons, 2 C. & P. 201 314 
 
 Todd V. Hastings, 2 Sand. 307 80 
 
 V. Hawkins, 2 M. & Rob. 20 ; 8 C. & P. 88 . 212, 235, 268, 484 
 
 Tomlinson v. Brittlebank, 4 B. & Ad. 630 ; 1 N. & M. 455 . . 106 
 Toogood V. Spyriug, 1 C. M. & R. 181 ; 4 Tyr. 582 . 217, 226, 242, 288 
 Tottentham v. Barry, 12 Ch. D. 797 ; 48 L. J. Ch. 641 ; 28 W. R. 389 462 
 Townshend (Lord) v. Hughes (Dr.), 2 Mod. Rep. 150 
 
 73, 96, 126, 136, 317, 320, 558 
 Tozer v. Mashlbrd, 6 Ex. 539 ; 20 L. J. Ex. 225 ... 57, 125 
 
 Traill v. Denham, Times, May 4th, 1880 99 
 
 Treat v. Browning, 4 Connecticut, 408 164 
 
 Trenton Insurance Co. v. Perrine, 3 Zab. 402 (Zabriskie, New 
 
 Jersey) ............ 368 
 
 Tripp V. Thomas, 3 B. & C. 427 293, 464, 543 
 
 Trotmanv. Dunn, 4 Camj). 211 191 
 
 Trowell v. Shenton, (C. A.) 8 Ch. D. 318, 321 ; 47 L. J. Ch. 738 ; 26 
 
 W. R. 837 ; 38 L. T. 369 562 
 
 Tnmibull v. Gibbous, 3 City Hall Recorder, 197 . . . 152, 153 
 
 Tuam (Archbishop of) v. Robeson, 5 Bing. 17 ; 2 M. & P. 32 . . 28 
 
 Tucker's Case, Ry. & M. 134 582 
 
 Tunicliffe v. Moss, 3 C. & K. 83 329, 330 
 
 Tupling u Ward and others, 6 H. & N. 749 ; 30 L. J. Ex. 222 ; 9 W. R. 
 
 482 ; 7 Jur. N. S. 314 ; 4 L. T. 20 . 504 
 
 TurnbuU v. Bird, 2 F. & F. 508 44 
 
 Turner, Ex parte, 3 Mont. D. & De G. 523, 551, 558 . . . . 430 
 
 V. Heyland, 4 C. P. D. 432 ; 48 L. J. C. P. 535 ; 27 W. R. Dig. 
 
 63 ; 41 L. T. 556 337, 338, 570 
 
 V. Meryweather, 7 C. B. 251 ; 18 L. J. C. P. 155 ; 13 Jur. 683 
 
 103, 128, 529 
 
 (Exch. Ch.) 19 L. J. C. P. 10 . . 103, 128, 529 
 
 Ixii
 
 TABLE OF CASES. 
 
 Tur-Wal. 
 
 PAGE 
 
 Turner r. Ogden, 2 Salk. 696 ; G ]\Iod. 104 ; Holt, 40 . 54, 57, 59. 85 
 
 r. Stirlini,^ 2 Ventr. 26 139 
 
 ■ V. Sullivan and others, 6 L. T. 130 251 
 
 Tuson V. Evans, 12 A. & E. 733 227, 281 
 
 Tutchin's Case, 5 St. Tr. 527 ; 14 How. St. Tr. 1095 ; 2 Lord Raym. 
 
 1061 ; 1 Salk. 50 ; 6 Mod. 268 . . 104, 377, 416, 417, 575 
 
 Tutty V. Alewin, 11 Mod. 221 68,76 
 
 Twycross v. Grant, (C. A.) 4 C. P. D. 40 ; 47 L. J. Q. B. 676 ; 27 
 
 W. R. 87 ; 39 L. T. 618 . . 355, 522 
 
 VV. N. 1875, pp. 201,229 ; 1 Charley, 114, 115 ; Bitt. 10, 
 38 ; 20 Sol. J. 54, 97 ; 60 L. T. Notes, 49, 84 . 355, 522 
 Tyne Alkali Co. v. Lawson, 36 L. T. 100 ; W. N. 1877, p. 18 . . 336 
 
 Underwood v. Parks, 2 Str. 1200 .305 
 
 Union Bank of London v. Manby, 13 Ch. D. 239 ; 49 L. J. Ch. 106 ; 
 
 28 W. R. 23 ; 41 L. T. 393 516 
 
 Upton v. Pinfold, Comyn, 267 . . . • • • . . 118 
 UsiU i;. Hales, j 3 c. p. D. 319 ; 47 L. J. C. P. 323 ; 26 W. E. 371 ; 
 
 ^.Brearley, ^ 33 l. T. 63 244,248 
 
 V. Clarke, ) 
 
 Vandenburg v. Truax, 4 Denio, N. Y. 464 .... 
 
 Vandersee v. McGregor, 12 Wend. 546 
 
 "Van Sandau, Ex 'parte, 1 Phillips, 445 
 
 V. Turner, 6 Q. B. 773 
 
 Vaughan v. Ellis, Cro. Jac. 213 
 
 Vaux's Case, 4 Rep. 45« 
 
 Vernon v. Vernon, 40 L. J. Ch. 118 ; 19 W. R. 404 ; 23 L. T. 697 
 
 Vessey v. Pike, 3 C. & P. 512 
 
 Vicars v. Wilcox, 8 East, 1 ; 2 Sm. L. C. 553 (8th edit.) 
 V. Worth, 1 Str. 471 
 
 322 
 
 270 
 
 438 
 
 438 
 
 140 
 
 587 
 
 429,434 
 
 . 304 
 
 322, 326 
 
 59, 84, 85, 131 
 
 Victoria Assembly (Speaker of) v. Glass, L. R. 3 P. C. 560 ; 40 L. J 
 
 P. C. 17 ; 24" L'. T. 317 • . . 425 
 
 Villeboisnet v. Tobin and others, L. R. 4 C. P. 184 ; 38 L. J. C. P. 
 
 146 ; 17 W. R. 322 ; 19 L. T. 603 504 
 
 Villers v. Mon.sley, 2 Wils. 403 22, 63 
 
 Vine, Ex parte, in re Wilson, 8 Ch. D. 364 ; 26 W. R. 582 ; 38 L. T. 
 
 730 354 
 
 Vines v. Serell, 7 C. & P. 163 298 
 
 Viney, Ex parte, (C. A.) 4 Ch. D. 794; 46 L. J. Bank. 80 ; 25 W. R. 
 
 364 ; 36 L. T. 43 563 
 
 Vivian v. WiUet, Sir T. Raym. 207 ; 3 Salk. 326 . • . . 78, 125 
 
 Wadsworth v. Bentley, 23 L. J. Q. B. 3 
 
 2 C. L. R. 127 ; 17 Jur. 1077 
 Wagstaffe v. Anderson and others, 39 L. T. 332 
 Waithman v. Weaver, 11 Price, 257 n. ; D. & R 
 Wakelin v. Morris, 2 F. & F. 26 
 Wakley v. Cooke & Healey, 4 Ex. 511 ; 19 L. J. 
 
 V. Healey, 7 C. B. 591 ; 18 L. 
 
 V. Healey & Cooke, 4 Ex. 53 ; 
 
 V. Johnson, Ry. & M. 422 . 
 
 Walcot V. Walker, 7 Yes. 1 
 
 Waldegrave (Sir William) v. Agas, Cro. Eliz. 191 
 
 1 B. C. Cases (L. & M.) 203 ; 
 
 456 
 
 . . 519 
 
 . 305 
 
 . . 295 
 
 Ex.91 . 30,171,485 
 
 J. C. P. 241 
 
 18 L. J. Ex. 426 
 
 N. P. C. 10 
 
 22, 29, 130 
 69, 126 
 . 307 
 . 374 
 56, 131 
 
 Ixiii
 
 Wal— Web. TABLE OF CASES. 
 
 PAGE 
 
 Walden v Mitchell, 2 Ventr. 265 58, 70 
 
 Walker v. Brogden, 17 C. B. N. S. 65 ; 11 Jur. N. S. 671 ; 13 W. R. 
 
 809 ; 12 L. T. 495 47, 529 
 
 Wallace, Re, L. R. 1 P. C. 2S3 ; 36 L. J. R C. 9 ; 15 W. R. 533 ; 14 
 
 L. T. 286 436 
 
 V. Carroll, 11 Ir. C. L. R. 485 204 
 
 Wallingford v. Mutual Society, (H. L.) 5 App. Cas. 685 ; 50 L. J. C. P. 
 
 49 ; 43 L. T. 258 522 
 
 Wallis V. Hepburn, 3 Q. B. D. 84 n 522 
 
 Walls or Watts v. Rymes, 2 Lev. 51 ; 1 Veut. 213 ; 3 Salk. 325 . . 60 
 
 Walsliaui V. Staiuton, 2 H. & M. 1 ; 12 W. R. 199 ... . 518 
 
 Walter v. Beaver, 3 Lev. 166 558 
 
 V. Brogden, 19 C. B. N. S. 65 28 
 
 Ward V. Reynolds, Pascli. 12 Anne B. R. ; cited Cowp. 278 . . 97, 126 
 . V. Sinlield, 43 L. T. 253 - 546 
 
 V. Smith, 6 Bing. 749 ; 4 M. & P. 595 ; 4 0. & P. 302 . 154,365,533 
 
 V. Weeks, 7 Bing. 211 ; 4 M. & P. 796 . 61, 82, 164, 167, 329, 330 
 
 Warden v. Bailey, 4 Taunt. 67 195 
 
 Ware, In re, Ex parte Drake, 5 Ch. D. 866 ; 46 L. J. Ch. 105 ; 25 W. 
 
 R. 641 ; 36 L. T. 677 456 
 
 Warman v. Hine, I Jur. 820 .... . 27, 29, 170, 276 
 
 Warne v. Chadwell, 2 Stark. 457 273 
 
 Warr v. Jolly, 6 C. & P. 497 168, 232, 233 
 
 Warren v. Warren, 1 C. M. & R. 250 ; 4 Tyr. 850 . 154,199, 242, 279, 533 
 Warton v. Gearing, 1 Victoria L. R. Cases at Law, 122 . . . 65, 75 
 
 Warwick v. Foulkes, 12 M. & W. 508 178, 274 
 
 Wason, Ex parte, L. R. 4 Q. B. 573 ; 38 L. J. Q. B. 302; 40 L. J. M. 
 
 C. 168 ; 17 W. R. 881 186 
 
 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 
 
 34, 40, 43, 186, 23G, 243, 246, 258, 259, 618 
 
 Waterer v. Freeman, Iloh. 267 142 
 
 Waterfield v. Chichester (Bishop of), 2 Mod. 118 257 
 
 Waters v. Waters, 24 W. R. 190 460 
 
 Watkin v. Hall, L. R. 3 Q. B. 396 ; 37 L. J. Q. B. 125 ; 16 W. R. 
 
 857 ; 18 L. T. 561 .. . 101, 162, 164, 165, 174, 175, 177 
 Watson, In re, Shaw's Cases (Scotch), No. 6 430 
 
 V. Clerke, Comb. 138 85 
 
 V. McCaim, 6 L. R. Ir. 21 566 
 
 V. Vanderhish, Hetl. 71 76, 77 
 
 Watt V. Ligertwood and another, L. R. 2 Sc. App. 261 . . . 433 
 Watts V. Fraser and another, 7 C. & P. 369 ; 7 Ad. & E. 223 ; 1 M. & 
 
 Rob. 449 ; 2 N. & P. 157 ; 1 Jur. 671 ; W. W. & D. 451 
 
 152, 159, 307, 362, 532 
 
 V. Rymes, 2 Lev. 51 ; 1 Ventr. 213 ; 3 Salk. 325 . . . 122 
 
 Weatherston v. Hawkins, 1 T. R. 110 232 
 
 Weaver v. Lloyd, 2 B. & C. 678 ; 1 C. & P. 295 ; 4 D. & R. 230 
 
 169, 170,545 
 
 Web V. Poor, Cro. Eliz. 569 • ... 62 
 
 Webb V. East, (C. A.) 5 Ex. D. 23, 108 ; 49 L. J. Ex. 250 ; 28 W. R. 
 
 229,336; 41 L.T. 715 518,519 
 
 V. England, 29 Beav. 44 477 
 
 1). Mansel, (C. A.) 2Q. B. D. 117 ; 25 W. R. 389 . . .563 
 
 Webster v. WhewaU, 15 Ch. D. 120 ; 49 L. J. Ch. 704 ; 28 W. R. 951 ; 
 
 42 L. T. 868 516, 520 
 
 Ixiv
 
 TABLE OF CASES. Wei— Wil. 
 
 PAGE 
 
 Weir V. Hoss, 6 ALilmma, 881 154 
 
 Weiss I'. Whitteiuore, 38 Mich. 366 320 
 
 Wellesley's (Mr. Long) Case, 2 Russ. & My. 639 . . . .431, 448 
 Welply V. Buhl, (C. A.) 3 Q. B. D. 80, 253 ; 47 L. J. Q. B. 151 ; 26 W. 
 
 R. 300; 38 L. T. 115 566 
 
 Welsh Steam Colliery Co. v. Gaskell, 36 L. T. 352 . . . . 520 
 
 Wenman v. Ash, 13 C. B. 836 ; 22 L. J. C. P. 190 ; 17 Jur. 579 ; 1 C. 
 
 L. R. 592 152, 264 
 
 Western Counties Manure Co. v. Lawes Chemical ^lanure Co., L. E. 9 
 
 Ex. 218 ; 43 L. J. Ex. 171 ; 23 W. R. 5 . 33, 91, 145, 148, 476, 634 
 Westman v. Aktiebolaoet, &c., Co., 1 Ex. D. 237 ; 45 L. J. Ex. 327 ; 24 
 
 W. R. 405 . ^ 357 
 
 We.st of England and South Wales Bank v. Nicholls, 6 Ch. D. 613 . 510 
 Weston V. Beeman and anotlier, 27 L. J. Ex. 57 361 
 
 V. Dobniet, Cro. Jac. 432 193 
 
 Wetherhead v. Armitage, 2 Lev. 233 ; 3 Salk. 328 ; Freem. 277 ; 2 
 
 Show. 18 67, 77, 84 
 
 Whalley's Case, L. R. 9 Q. B. 219 ; 12 Cox, C. C. 358 . . 430, 448 
 
 Wharton v. Brook, Ventr. 21 77, 84 
 
 Wheatcroft v. Mousley, 11 C. B. 677 529 
 
 Wheeler v. Haynes, 9 A. & E. 286 ; 1 P. & D. 55 ; 1 W. W. & H. 
 
 645 104 
 
 Whistler v. Hancock, 3 Q. B. D. 83 ; 45 L. J. Q. B. 460 ; 24 W. R. 
 
 640 ; 34 L. T. 682 522 
 
 V. Ruskin, Times, Nov. 26 & 27, 1878 . . . . 38, 49 
 
 White V. Tyrrell (2), 5 Ir. C. L. R. 498 487 
 
 White et nx. v. Harwood ct ux., Style, 138 ; Vin. Aljr. Baron & 
 
 Feme, Aa. 352 
 
 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 . . . . 198, 466 
 Whitfield V. Powel, 12 Mod. 248 63 
 
 and others v. S. E. Ry. Co., El. Bl. & El. 115 ; 27 L. J. Q. B. 
 
 229 ; 4 Jur. N. S. 688 151, 240, 283, 369 
 
 Whittington v. Gladwin, 5 B. & C. 180 ; 2 C. & P. 146 . . . 78, 79 
 Wilby V. Elston, 8 C. B. 142 ; 18 L. J. C. P. 320 ; 7 D. & L. 143 ; 13 
 
 Jur. 706 85 
 
 V. Hennian, 2 Cr. & M. 658 523 
 
 Wilk's Case. 1 Roll. Ahr. 51 108 
 
 'W'imams v. Beaumont, lo Biug. 260; 3 M. & Scott, 705 . 32, 368, 369 
 
 V. Cidlender, Holt, N. P. 307 305 
 
 c. Gardiner, 1 M. & W. 245 ; 1 Tvrw. & Gr. 578 . 103, 125 
 
 c. Hill, 19 Wend. 305 312 
 
 i: Johns, 1 Mer. 303, n 431 
 
 v. Stott, 1 C. & M. 675 ; 3 Tvr. 688 . . . . 55, 62 
 
 Williams's Case, 2 Rolle R. 88 411 
 
 Williamson v. Freer, L. R. 9 C. P. 393 ; 43 L. J. C. P. 161 ; 22 W. R. 
 
 878 ; 30 L. T. 332 151, 240, 283, 285, 532 
 
 A\'illis V. Maelachlan, 1 Ex. D. 376 ; 45 L. J. Ex. 689 ; 24 W. R. Dig. 
 
 104 ; 35 L. T. 218 447 
 
 ^\'ilson. In re, Exnarte Vine, 8 Ch. D. 364 ; 26 W. R. 582 ; 38 L. T. 
 
 730 . 354 
 
 Wilson i: Church, 9 Ch. D. 552 ; 26 W. R. 735 ; 39 L. T. 413 . 501, 564 
 (C. A.) 11 Ch. D. 576 ; 48 L. J. Ch. 690 ; 27 W. R. 
 843 ; 12 Ch. D. 454 ; 28 W. R. 284 ; 41 L. T. 
 .501 501, 564 
 
 l.w e
 
 Wil— Zen. TABLE OF CASES. 
 
 PAGE 
 
 Wilson r. Collins, 5 C. & P. 373 240, 283, 286 
 
 V. Goit, 3 Smith (17 N. Y. R), 445 . . 21, 313, 325, 328, 350 
 
 V. Eeed and others, 2 F. & F. 149 . . . . 43, 295, 372 
 
 %\ Robinson, 7 Q. B. 68 ; 14 L. J. Q. B. 196 ; 9 Jur. 726 . 178, 
 
 212, 274 
 Wilson's fCarus) Case, 7 Q. B. 984 . . . 429, 433, 435, 439, 443, 444 
 Wilton r.'Bri<,mell, W. N. 1875,1x239 ; 1 Charlev, 105 ; Bitt. 56 ; 20 
 
 Sol. J. 121 ; 60 L. T. Xotes, 104 .."... 507, 515 
 
 Win£?ard v. Cox, W. N. 1876, p. 106 ; Bitt. 144 ; 20 Sol. J. 341 ; 60 
 
 L. T. Notes, 304 479 
 
 Wiseman v. Wiseman, Cro. Jac. 107 . 130 
 
 Wolverhampton New Waterworks Co. v. Hawksford, 5 C. B. N. S. 
 
 703 ; 28 L. J. C. P. 198 515 
 
 Wood V. Adam, 6 Bing. 481 470 
 
 V. Brown, 6 Taunt. 169 ; 1 Marsh. 522 470 
 
 V. Jones, 1 F. & F. 301 505 
 
 AVoodard v. Dowsing, 2 j\Ian. & Ry, 74 28, 283 
 
 Woodfall's Case, 5 Burr. 2661 . " 588 
 
 Woodgate v. Ridout, 4 F. & F. 202 ... 29, 45, 46, 253, 539 
 
 Woodruff 1'. Westley, 1 Yin. Abr. 463 71 
 
 Woods V. Woods, 2 Curt. 516 403 
 
 Woodward v. Lander, 6 C. & P. 548 217, 223, 281 
 
 Woolmer v. Latuner, 1 Jur. 119 305 
 
 Woolnoth V. Meadows, 5 East, 463 ; 2 Smith, 28 . , 56, 97, 124, 163 
 
 Wootton V. Wootton, W. N. 1869, p. 175 338 
 
 Wren and another x\ Weild, L. R. 4 Q. B. 730 ; 10 B. & S. 51 ; 38 
 
 L. J. Q. B. 88, 327 ; 20 L. T. 277 144, 496 
 
 Wrennnm's Case, Pop. 135 . . . 428 
 
 Wright V. Clements, 3 B. & Aid. 503 470 
 
 V. Goodlake, 34 L. J. Ex. 82 507 
 
 V. MoorhoiTse, Cro. Eliz. 358 71 
 
 V. Woodgate, 2 C. M. & R. 573 ; 1 Tvr. & G. 12 ; 1 Gale, 329 
 
 211,270,535 
 Wyatt x\ Gore, 1 Holt, N. P. 299 538, 549 
 
 Yarborough v. Bank of England, 16 East, 6 
 
 368 
 440 
 189 
 354 
 555 
 31 
 
 Yarmouth (Mayor of), ^.cjXM-^ 1 Cox, C. C. 122 .... 
 
 Yates V. Lansing, 5 Johns. 283 ; 9 Johns. 395 (Amer.) 
 
 Yeates et ux. v. Reed et ux., 4 Blackf. (Indiana), 463 
 
 Yetts V. Foster, (C. A.) 3 C. P. D. 437 ; 26 W. R. 745 ; 38 L. T. 742 
 
 Yoiuig V. Hickens, 6 Q. B. 606 
 
 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 . 33, 145, 146, 147, 148 
 Yrisarri v. Clement, 4 L. J. Old S. C. P. 128; 3 Bing. 432 ; 11 
 
 Moore, 308 ; 2 C. & P. 223 24, 69, 530 
 
 Zenobio v. AxteH, 6 T. R. 162 ; 3 M. & S. 116 . . . 110, 470, 574 
 
 Ixvi
 
 TABLE OF STATUTES CITED. 
 
 The Statutes marked with an asterisk will be found printcdj in full in 
 A2)2Kndix C, 2'ost, pp- 664 — 683. 
 
 *3 Ed. I. Stat. AVestininster I. 
 c. 34 133, 135, 417, 422, 427 
 
 25 Ed. III. c. 2 . 
 
 
 411 
 
 *2 Rich. II. St. 1, c. 5 73, 
 
 134, 
 
 135, 
 
 417, 
 
 422 
 
 427 
 
 *12 Ricli. II. c. 11 135,417, 
 
 422, 
 
 
 
 427 
 
 1 Ed. VI. c. 1, s. 1 . 
 
 
 400 
 
 2 & 3 Ed. VI. c. 1, s. 2 . 
 
 
 400 
 
 3 . 
 
 
 400 
 
 1 & 2 Ph. & M. c. 13 . 
 
 
 447 
 
 1 Eliz. c. 1, s. 6 
 
 
 402 
 
 2, s. 2 
 
 
 400 
 
 3 . 
 
 
 400 
 
 5 Eliz. c. 4 . . . 
 
 
 201 
 
 13 Eliz. c. 12, s. 2 . 
 
 
 401 
 
 18 Eliz. c. 3 . 
 
 
 58 
 
 1 Jac. I. c. 11 
 
 
 59 
 
 3 Jac. I. c. 21 . 
 
 
 401 
 
 21 Jac. I. c. 16 
 
 335 
 
 456 
 
 s. 3 
 
 
 455 
 
 19, s. 7 
 
 
 456 
 
 *13 Our. II. Stat. I. c. 1, s. 
 
 3 . 
 
 422 
 
 13 & 14 Car. II. c. 33 . 
 
 
 11 
 
 14 Car. II. c. 4, s. 1 
 
 
 401 
 
 17 Car. II. c. « 
 
 
 355 
 
 2'J Car. II. c. 7, «. G 
 
 
 400 
 
 9, .s. 1 
 
 
 402 
 
 2 
 
 
 402 
 
 1 Jac. II. c. 17 
 
 
 11 
 
 1 W. & M. Sess. 2, c. 2 . 
 
 
 186 
 
 3 W. & M. c. 10 . 
 
 
 57 
 
 *9, s. 4. . 
 
 
 59 
 
 *4 W. & M. c. 18, s. 1 591 
 
 ,595 
 
 ,6G6 
 
 5 &6 W. &M. c. 11, s. 3 
 
 
 578 
 
 8&9 Win. III. c. ri,s. G 
 
 
 355 
 
 9 Wm. III. c. 35 [c. 32 in the 
 Statutes at Large] 
 
 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, s. 113 . 
 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 . 
 *32 Geo. III. c. 60 (Fox's Libel 
 
 Act) 
 
 s. 1 
 3 
 4 
 
 12 94 
 
 36 Geo. in. c. 7 . 
 
 38 Geo. III. c. 71, s. 17 . 
 
 *39 Geo. III. c. 79, s. 29 12, 
 
 48 Geo. III. c. 58. s. 1 
 53 Geo. III. c. 127, s. 3 
 
 160 
 57 Geo. III. c. 6 . 
 60 Geo. III. and 1 Geo. IV 
 c. 4, s. 1 
 
 2 . 
 
 *8, s. 1 . 
 
 2 . 
 
 3 . 
 
 4 . 
 
 3 Geo. IV. c. 40, s. 3 
 *5 Geo. IV. c. 83, s. 4 
 6 Geo. IV. c. 50, ?. 30 
 c. 119 
 
 PAGK 
 401 
 
 456 
 
 135 
 
 411 
 
 422 
 
 12 
 
 59 
 
 444 
 
 81 
 
 59 
 
 667 
 585 
 585 
 586 
 411 
 159 
 531, 
 668 
 595 
 402 
 401 
 411 
 
 579, 
 579, 
 
 669 
 670 
 394, 409, 412 
 412 
 412 
 412 
 407 
 670 
 579 
 12 
 
 407,
 
 Ixviii 
 
 TABLE OF STATUTES CITED. 
 
 7 Geo. IV. c. G4, s. 20 . 
 7 & 8 Geo. IV. c. 28, s. 2 
 9 Geo. IV, c. 22, s. 7 
 32, s. 3 
 11 Geo. IV. and 1 Wm. 
 c. 73, s. 1 . 
 
 2 & 3 Wm. IV. c. 93 . 
 
 3 & 4 Wm. IV. c. 42, s. 7 
 
 40 
 6 & 7 Wm. IV. c. 76 . 
 s. 6 . 
 
 PACE 
 
 . 582 
 . 576 
 
 248, 255 
 . 171 
 
 IV. 
 
 . 412 
 . 447 
 . 456 
 . 438 
 . 12 
 . 531 
 s. 8 . . . . 531, 532 
 
 13 531 
 
 *19 . 513, 514, 515, 532, 671 
 c. 96, s. 6 . . . . 178 
 . 161 
 . 412 
 407, 671 
 . 396 
 12, 672 
 . 406 
 187, 672 
 
 7 Wm. IV. & 1 Vict. c. 23 
 *1 & 2 Vict. c. 38, s. 2 . 
 
 105, s. 1 . 
 *2 & 3 Vict. c. 12, s. 2 . 
 
 71, s. 49 . 
 *3 & 4 Vict. c. 9 
 
 Appendix B. . 466 
 334, 335 
 
 . 223 
 
 . 404 
 
 . 574 
 
 . 453 
 
 . 248 
 
 401 
 13 
 
 c. 24, s. 2 
 86, s. 3 
 
 5 & 6 Vict. c. 38 . 
 
 s. 1 . 
 
 c. 97, s. 4 . 
 
 122, s. 42 . 
 
 6 & 7 Vict. c. 68, s. 1 . 
 
 14 . 
 
 *Lord Campbell's Act, c. 96, 
 
 s. 1 . . 299, 465, 568, 674 
 
 2 299, 301, 465, 487, 491, 497, 
 
 568 
 
 3 378 
 
 4 . . 379, 572, 573, 580 
 
 5 . . . . 379, 390 
 
 6 . 178, 388, 576, 577, 589 
 
 7 . 363, 364, 365, 385, 583 
 
 8 . . . 590, 595, 596 
 
 7 & 8 Vict. c. 84 . . . 143 
 
 8 Vict. c. 16, s. 135 . .461 
 
 18, s. 134 . . 461 
 
 20, s. 138 . . 461 
 
 *8 & 9 Vict. c. 75, s. 2 300, 487, 677 
 
 *9 & 10 Vict. c. 33, s. 1 . 531, 678 
 
 c. 95, s. 58 
 
 73 . 
 
 88 
 
 113 
 
 cxxvi. . ^ 
 
 11 & 12 Vict. c. 12, .' 
 
 *s. 3 
 
 c. 42, f- 
 
 335, 453, 565 
 
 . 568 
 . 343, 569 
 
 . 445 
 
 . 569 
 
 1 . .411 
 
 410, 412, 678 
 1 . . 573 
 
 11 & 12 Vict. c. 
 
 12 & 13 Vict. 
 14 & 15 Vict. 
 
 42, s. 9 . 
 78, s. 2 . 
 5 . 
 101, s. 2 
 93, s. 9 . 
 100, s. 1 
 
 2 
 3 
 
 24 
 25 
 
 29 
 
 PAGE 
 
 . 573 
 
 . 586 
 
 . 587 
 
 . 445 
 
 . 446 
 
 . 574, 
 
 577, 582 
 
 . 577 
 
 . 577 
 
 . 582 
 
 . 577, 
 
 582, 586 
 
 . 404 
 
 15 & 16 Vict. c. 76 (Common 
 Law Procedure Act, 1852) 
 s. 11 
 
 16 
 
 29 
 
 40 
 
 *61 
 
 70 
 109 
 112 
 142 
 
 (Schedule B., form 33) 
 16 & 17 Vict. c. 30, s. 4 
 5 
 
 325 
 
 459 
 
 . 461 
 
 . 463 
 
 . 325, 347 
 
 101, 115,120, 128,471, 
 
 473, 575, 679 
 
 491, 492 
 
 . 528 
 
 17 & 18 Vict. 
 Act, 1854) 
 
 6 . 
 
 9 . 
 c. 34, s. 1 . 
 c. 125 (C. L. P. 
 
 528 
 354 
 103 
 
 578 
 578 
 579 
 525 
 526 
 
 18 Vict. c. 27 . 
 
 s. 24 
 
 25 
 
 27 
 
 51 
 
 103 
 
 513 
 
 . 546 
 . 546 
 533, 580 
 . 501 
 . 580 
 12 
 
 *18 & 19 Vict. c. 41. 17, 59, 87, 679 
 s. 1 
 55, s. 35 
 19 & 20 Vict. c. 16, s. 1 . 
 
 47 
 97, s. 12 
 108, s. 23 
 20 & 21 Vict. c. 43 
 
 s. 4 . 
 *c. 83 . 
 
 s. 1 . 
 
 85, s. 21 
 
 25 
 
 26 
 
 90, s. 27 
 
 21 & 22 Vict, 
 
 22 & 23 Vict, 
 
 c. 17 
 
 403 
 . 425 
 . 579 
 . 369 
 . 456 
 
 453, 565 
 . 407 
 . 407 
 
 405, 680 
 12 
 . 346 
 . 351 
 . 351 
 . 531 
 . 571
 
 TABLE OF STATUTES CITED. 
 
 PAGE 
 
 23 & 24 Vict. c. 28 . . . 81 
 
 90, s. 27 . 531 
 
 126, s. 19 . 370 
 
 24 & 25 Vict. c. 94, s. 8 . . 570 
 
 9ti, s. 4() . 379 
 
 47 . 379 
 
 c. 131 (Bankruptcy 
 
 Act, 18(il) ss. 101, 102 
 
 25 & 26 Vict. c. 89, s. 62 
 
 27 & 28 Vict. c. 47, s. 2 . 
 
 28 Vict. c. 36, s. 16 
 28 & 29 Vict. c. 18, s 
 
 4 
 5 
 8 
 30 & 31 Vict. c. 35, s. 2 
 3 
 142, 
 
 7 
 10 
 
 248 
 
 461 
 
 . 379 
 
 . 440 
 
 . 583 
 
 . 583 
 
 . 580 
 
 . 571 
 
 . 572 
 
 335, 341 
 
 334, 335, 
 
 337 
 
 . 509 
 
 300, 343, 
 
 468, 469, 560, 569 
 
 29 
 
 31 & 32 Vict. c. 54, s. 5 . 
 
 32 & 33 Vict. c. 24 . 
 
 s. 1 . 
 Sclied. 1 
 
 68, s. 4 
 71, s. 19 
 
 33 & 34 Vict. c. 9, ss. 30—34 
 49, s. 1 . 
 77, s. 18 
 79, s. 20 
 c. 93, (Married Women's Pro- 
 perty Act, 1870) . 324, 346, 
 349, 350 
 
 570 
 350 
 12 
 513 
 513, 
 531 
 513 
 396 
 437 
 437 
 421 
 397 
 528 
 407 
 
 PAGE 
 
 33 & 34 Vict. c. 93, s. 1 .81, 87, 349 
 
 11 . 81, 349 
 c. 99 . . 12, 513 
 
 34 & 35 Vict. c. 112 . . 546 
 
 s. 18 . 546 
 36 & 37 Vict. c. 60 (Judicature 
 
 Act, 1873) 
 
 s. 24, subs. 7 
 25, sulis. 8 
 11 
 s. 39 
 46 
 49 
 60 
 07 
 & 38 Vict. 
 Women's 
 
 325 
 
 . 514 
 
 15 
 
 505, 517 
 
 . 437 
 
 . 553 
 
 . 502 
 
 . 454 
 
 325, 334, 408, 570 
 
 c. 50 (Married 
 
 Property Act 
 
 Amendment Act, 1874) 
 
 324 
 351 
 
 s. 2 . 351, 352,491 
 
 5 . . .351 
 
 38 Vict. c. 14, s. 2 . . . 421 
 
 38 & 39 Vict. c. 63 (Sale of 
 
 Food & Drugs Act, 1875) . 54 
 
 c. 77 (Judica- 
 ture Act, 1875) . . 344 
 s. 22 551, 553, 554 
 s. 33 . . 335 
 Appendi.v A., form No. 3 . 357 
 „ C, Forms of Plead- 
 ings, No. 14 . 372 
 c. 80, s. 17 . . . . 201 
 
 39 & 40 Vict. c. 59 (Appellate 
 
 Jurisdiction Act, 1870) . 565 
 
 s. 17 553, 554 
 
 42 & 43 Vict. c. 59, s. 3 . . 356 
 
 *43 k 44 Vict. c. 41 (Burial 
 
 Laws Amendment Act, 
 
 1880), s. 7 . . 401, 682
 
 TABLE OF RULES AND OEDERS 
 CITED. 
 
 JUDICATURE ACT (1875), 38 & 39 Vict. c. 77. 
 
 Order 
 
 
 
 
 PAGE 
 
 
 
 
 PAGE 
 
 II. 
 
 rule 2 
 
 . . 343 
 
 Order 
 
 XIL 
 
 rule 7 
 
 463, 567 
 
 III. 
 
 55 
 
 2 . 
 
 . 459 
 
 
 
 33 8 • 
 
 . 463 
 
 IV. 
 
 )) 
 
 1 
 
 . . 459 
 
 
 
 „ 9 
 
 . . 463 
 
 
 j; 
 
 2 . 
 
 . 459 
 
 
 
 33 12 . 
 
 366, 463 
 
 
 )3 
 
 2(( 
 
 . . 459 
 
 
 
 33 12a 
 
 366, 463 
 
 
 5) 
 
 3a 
 
 454, 459 
 
 
 
 „ 15 
 
 . . 463 
 
 V. 
 
 )> 
 
 1 
 
 454, 462 
 
 ?? 
 
 XIIL 
 
 ,3 1 
 
 353, 354 
 
 
 )? 
 
 4rt 
 
 556, 561 
 
 
 
 ,3 2 . 
 
 . 463 
 
 VI. 
 
 !) 
 
 1 
 
 . . 460 
 
 
 
 33 5a 
 
 . . 462 
 
 VIII. 
 
 )) 
 
 1 . 
 
 . 459 
 
 
 
 ,3 6 
 
 464, 568 
 
 IX. 
 
 J) 
 
 1 
 
 . . 460 
 
 33 
 
 XVI. 
 
 33 1 
 
 365, 370, 
 
 
 5) 
 
 1« 
 
 . 567 
 
 
 
 
 465, 568 
 
 
 j; 
 
 2 . 
 
 . 460 
 
 
 
 3, 2 . 
 
 . 568 
 
 
 )) 
 
 3 
 
 . . 461 
 
 
 
 ,3 3 
 
 366, 371, 
 
 
 7) 
 
 4 . 
 
 . 461 
 
 
 
 
 568 
 
 
 )J 
 
 5 
 
 . . 461 
 
 
 
 33 ^ 
 
 . . 371 
 
 
 !J 
 
 6 . 
 
 . 461 
 
 
 
 33 6- 
 
 . 371 
 
 
 » 
 
 6 a 
 
 . . 461 
 
 
 
 3, 8 
 
 . . 346 
 
 
 )) 
 
 7 
 
 461, 568 
 
 
 
 .3 10 . 
 
 . 366 
 
 
 » 
 
 13 
 
 460, 462, 
 
 464, 567, 
 
 568 
 
 
 
 „ 10a 
 33 13 . 
 
 33 17 
 
 . . 366 
 
 . 344 
 
 . . 481 
 
 
 J) 
 
 14 . 
 
 . 567 
 
 
 
 „18 . 
 
 . 481 
 
 X. 
 
 
 
 . . 461) 
 
 
 
 3, 19 
 
 . . 481 
 
 XL 
 
 
 
 . 357 
 
 
 
 ,3 20 . 
 
 . 481 
 
 
 J? 
 
 1 
 
 . . 460 
 
 
 
 3,21 
 
 . . 481 
 
 
 J) 
 
 2 
 
 . 356 
 
 33 
 
 XVIL 
 
 33 1 
 
 458, 466 
 
 
 
 4 
 
 . . 463 
 
 
 
 „ 2 . 
 
 . 366 
 
 XIL 
 
 J1 
 
 1 . 
 
 . 462 
 
 
 
 33 4 
 
 325, 347, 
 
 
 J) 
 
 2 
 
 . . 462 
 
 
 
 
 458, 465 
 
 
 ?) 
 
 3 . 
 
 . 462 
 
 
 
 ,3 5 . 
 
 . 465 
 
 
 3J 
 
 4 
 
 . . 567 
 
 
 
 33 6 . 
 
 365, 458, 
 
 
 JJ 
 
 5 
 
 462, 567 
 
 
 
 
 465 
 
 
 3; 
 
 6rt 
 
 462, 567 
 
 
 
 33 7 . 
 
 458, 466 
 
 
 >> 
 
 (Jb 
 
 . . 463 
 
 
 
 33 8 . 
 
 458, 466
 
 TABLE OF RULES AND ORDERS CITED. Ixxi 
 
 Order 
 
 XVII. 
 XIX, 
 
 XX. 
 
 XXI. 
 
 XXII. 
 
 XXIII. 
 XXIV. 
 
 XXV. 
 
 XXVI. 
 
 XXVII. 
 
 rule 9 
 „ 2 
 „ 3 
 
 „ 5 
 
 »11 
 „14 . 
 „16 
 „17 . 
 „ 18 . 
 „20 
 „21 
 „22 . 
 „24 
 „28 . 
 ., 30 
 ,,31 . 
 
 481 
 „ 2 
 » 3 
 „ 4 
 „ 1 
 ,. Ic 
 „ 1 
 „ 9 
 
 „ 1 
 „ 2 
 „ 3 
 
 XXVIII. 
 
 „ 2 
 
 „ 3 
 
 ,, 4 
 
 „ 5 
 
 „ 6 
 
 „ 7 
 „ 9 
 „10 
 „11 
 
 rule 
 
 PAGE 
 
 458, 466 
 
 343, 495 
 
 344, 372, 
 
 491 
 
 120, 470, 
 
 473, 488 
 
 . 474 
 
 , . 482 
 
 . 496 
 
 . 480 
 
 482, 483 
 
 . 484 
 
 480, 482 
 
 . 497 
 
 . 482 
 
 . 470 
 
 . 472 
 
 . 446 
 
 . 446 
 
 , 495, 554 
 
 . . 567 
 
 . 567 
 
 300, 568 
 
 . . 469 
 
 . 469 
 
 . 495 
 
 . . 372 
 
 . 524 
 
 408, 500 
 
 . . 498 
 
 498, 500 
 
 . . 522 
 
 . 522 
 
 47.9, 480, 
 
 481, 492, 
 
 493, 496, 
 
 498, 537 
 
 . 498 
 
 . . 498 
 
 . 500 
 
 . . 500 
 
 496, 537, 
 
 545 
 
 . 498 
 
 500 
 
 500 
 
 459 
 
 569 
 
 477 
 
 478 
 
 478 
 
 479 
 
 478 
 
 479 
 
 479 
 
 XXVIII. rule 10 . 
 
 PAGE 
 
 . 479 
 
 »11 
 
 . . 479 
 
 „12 . 
 
 478, 479 
 
 „ 13 
 
 . . 479 
 
 XXIX. „ 1 . 
 
 . 474 
 
 „ 4 
 
 . . 496 
 
 » 5 . 
 
 . 496 
 
 „12 
 
 . . 501) 
 
 „14 . 
 
 . 465 
 
 XXX. 
 
 . . 301 
 
 „ 1 . 
 
 300, 465, 
 
 491 
 
 , 493, 501 
 
 XXXI. „ 2 . 
 
 343, 503 
 
 ,, 5 
 
 . 509, 512 
 
 „ 7 . 
 
 . 512 
 
 „ 8 
 
 . . 509 
 
 „io . 
 
 . 515 
 
 „11 
 
 . . 516 
 
 „12 . 
 
 . 515 
 
 „13 
 
 . . 517 
 
 „14 . 
 
 . 520 
 
 „16 
 
 . . 520 
 
 „17 . 
 
 . 521 
 
 „18 
 
 . . 521 
 
 „20 . 
 
 432, 522 
 
 „21 
 
 . . 521 
 
 »22 . 
 
 432,521 
 
 „23 
 
 . 511,547 
 
 XXXV. „ 12 . 
 
 455, 466 
 
 „ 13 
 
 455, 466 
 
 XXXVI. „ 2 . 
 
 . 569 
 
 „ 3 
 
 . . 500, 
 
 
 523, 524 
 
 „ 4 . 
 
 500, 523 
 
 „ 4a . 
 
 500, 523 
 
 „ 8 . 
 
 . 523 
 
 „ 9 
 
 . . 523 
 
 „io . 
 
 . 523 
 
 »11 
 
 . 523 
 
 „12 . 
 
 . 523 
 
 „13 
 
 523, 525 
 
 „14 . 
 
 . 523 
 
 „15 
 
 . 523 
 
 „17« 
 
 . 523 
 
 „18 
 
 . 529 
 
 „20 . 
 
 . 529 
 
 „21 
 
 . 529 
 
 „22 . 
 
 . 552 
 
 „ 22a 
 
 552, 554 
 
 „24 . 
 
 . 552 
 
 „33 . 
 
 . 438 
 
 ^XXVII. rule 1 . 
 
 . 526 
 
 „ 3a . 
 
 . 511 
 
 „ 3/j 
 
 . 511 
 
 „ 3c . 
 
 . 511
 
 Ixxii 
 
 TABLE OF RULES AND ORDERS CITED. 
 
 
 
 
 PAGE 
 
 
 
 
 
 PAGE 
 
 '^:XXVII. rule U 
 
 
 511 
 
 Order 
 
 LI. 
 
 rule 4 
 
 . 466 
 
 
 „ 3e 
 
 
 511 
 
 >■) 
 
 LIIL 
 
 5) 
 
 2 . 
 
 . 562 
 
 
 » 3/. 
 
 
 511 
 
 
 
 3) 
 
 3 
 
 . 562 
 
 
 » 3r/ 
 
 
 511 
 
 
 
 )! 
 
 4 . 
 
 499, 553 
 
 
 „ 4 . 
 
 
 526 
 
 )> 
 
 LIV. 
 
 55 
 
 2 
 
 . . 521 
 
 
 „46 
 
 
 566 
 
 
 
 5) 
 
 4 . 
 
 . 499 
 
 XXXIX. 
 
 
 
 554 
 
 
 
 55 
 
 Ga 
 
 . . 499 
 
 
 „ \a 
 
 560 
 
 557 
 561 
 
 >> 
 
 LV. 
 
 55 
 
 1 
 
 336, 338 
 . 334, 
 
 
 „ 16 
 
 
 556 
 
 
 
 
 469, 
 
 553, 570 
 
 
 ,; 2 . 
 
 
 557 
 
 
 
 55 
 
 3 . 
 
 . 467 
 
 
 „ 3 
 
 
 557 
 
 5J 
 
 LVII. 
 
 55 
 
 o 
 
 . . 499 
 
 
 „ 5 . 
 
 
 557 
 
 
 
 55 
 
 6a 
 
 . 495 
 
 XL. 
 
 „ 2 
 
 
 554 
 
 JJ 
 
 LVIIa. 
 
 
 
 553, 554 
 
 
 „ 3 . 
 
 
 553 
 
 j; 
 
 LVIII. 
 
 55 
 
 1 
 
 . . 551 
 
 
 „ 4« 
 
 . 554, 562 
 
 
 
 55 
 
 2 . 
 
 . 562 
 
 
 „ 9 . 
 
 
 562 
 
 
 
 !5 
 
 3 
 
 . . 563 
 
 
 „ 10 
 
 . 554,556 
 
 
 
 55 
 
 4 . 
 
 562, 563 
 
 XLI. 
 
 „ 1 
 „ 6 . 
 
 
 552 
 545 
 
 
 
 55 
 5 5 
 
 5 
 
 5(«, . 
 
 . . 564 
 556, 565 
 
 XLII. 
 
 2 
 
 
 432 
 
 
 
 55 
 
 6 
 
 . . 564 
 
 
 „ 4 ■ 
 
 
 432 
 
 
 
 55 
 
 7 . 
 
 . 564 
 
 
 „ 5 
 
 
 432 
 
 
 
 55 
 
 8 
 
 . . 563 
 
 
 „ 8 . 
 
 
 367 
 
 
 
 55 
 
 10 . 
 
 . 560 
 
 
 „ 15 . 
 
 
 552 
 
 
 
 55 
 
 12 
 
 565 
 
 
 „20 
 
 
 432 
 
 
 
 55 
 
 13 . 
 
 . 565 
 
 
 „22 . 
 
 
 554 
 
 
 
 55 
 
 15 
 
 . 560, 562 
 
 XLIV. 
 
 
 . 432 
 
 ,438 
 
 
 
 55 
 
 16 . 
 
 . 564 
 
 
 2 
 
 
 433 
 
 
 
 55 
 
 17 
 
 . . 564 
 
 L. 
 
 " 1 ' 
 
 -7 
 
 346 
 
 355 
 ,351 
 
 >> 
 
 LIX. 
 
 55 
 
 2 
 
 537, 545
 
 
 *^ tx^y o<^c<.A.^^ei^ uyv>4<- , 
 
 PART I. ^7^/^5\ 
 THE LAW OF LIBEL flS^^^Si^tp^i. 
 
 CHAPTEE L 
 
 IXTKODUCTOKY. 
 
 No man may disparage the reputation of another. 
 Every man has a right to have his good name maintained 
 imimpaircd. 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 words, if written and published, 
 constitute a libel ; if spoken, a slander. 
 
 Words which merely might tend to produce injury to 
 the reputation of another are not defamatory, and even 
 though false are not actionable, unless as a matter of 
 fact some appreciable injury has followed from their use. 
 
 On the other hand, words which on the face of them 
 must be injurious to the reputation of the person to 
 whom they refer, are clearly defamatory, and, if false, 
 are actionable, without proof that any particular damage 
 has followed from theii* use. 
 
 llliistnitloiis. 
 
 To say " A. is a coward," or " a liar," or " a rascal," is not defamatory, 
 unless it can be proved that soiue one seriously believed and acted on the
 
 2 INTRODUCTION. 
 
 assertion, to tlie prejudice of A. Sucli words, thougli false, are not action- 
 able without some CAddence to show that A.'s reputation has as a matter of 
 fact been actually impaired thereby. De minimis non curat lex. 
 
 To say of B. : — " He forged his master's signature to a cheque for £100," 
 is clearly defamatory, and, if false, actionable. It must injure B.'s reputa- 
 tion 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 natm*e of the words them- 
 selves ; or, 
 (ii, ) proved by evidence of their consequences. 
 (i.) It Avill be presumed from the natiu-e of the words 
 themselves, 
 
 («) If the words, being wiitten and published or 
 printed and published, are in any way disparag- 
 ing to the plaintiff or tend to bring him into 
 ridicule and contempt. 
 (h) If the words, being spoken, 
 
 (1.) charge the plaintiff with the commission of 
 
 some indictable offence ; 
 (2.) impute to the plaintiff a contagious dis- 
 order tending to exclude him from society ; 
 (3.) arc spoken of the plaintiff in the way of 
 his profession or trade ; or disparage him 
 in an office of j)ublic trust. 
 In all these cases the Avords are said to be actionable 
 per se, because on the face of them they clearly must 
 have injured the plaintiff' 's rejmtation. ' 
 
 (ii.) But in all other cases of sj)oken words, the fact 
 that the plaintiff' 's reputation has been injured thereby, 
 must be proved at the trial by evidence of the con- 
 sequences that directly resulted from their utterance. 
 Such evidence is called " Evidence oi special damage," as 
 distinguished from that general damage which the law
 
 INTRODUCTION. 3 
 
 assumes, without express proof, to follow from the 
 employment of words actionable ^j(?r ^e. 
 
 Illustrations. 
 
 To say of A. " He is a forger and a felon ; '' or " He hath tlie French 
 jiox ; " to call a physician a c|uack, a tradesman a bankrupt, or a lawyer a 
 knave ; to say of a magistrate that he is a corrupt judge ; is in each case 
 actionable Avithout proof of sjieeial damage. A foriiori, 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 2)er 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 which if printed and published would be presumed to 
 have injured the plaintiff's reputation, will not bo actionable 
 2')er se, if merely spoken. The reasons for this distinction are 
 obvious : — 
 
 1. Vox emissa volat ; litera scrlpta manet. The written or 
 printed matter is permanent, and no one can teU 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 even a private letter may turn up in 
 after years, and reach persons for whom it was never intended, 
 and so do incalculable mischief. Wliereas a slander only 
 reaches the immediate bystanders, who can observe the manner 
 and note the tone of the speaker, — who have heard the 
 antecedent conversation which may greatly qualify his asser- 
 tion, — who probably are acquainted with the speaker, and 
 know what value is to be attached to any charge made by him; 
 the mischief is thus much less in extent, and the publicity less 
 durable. 
 
 2. A slander may be uttered in the heat of a moment, and 
 under a sudden, provocation ; the reduction into writing, and 
 the publication, of a libel show greater deliberation and malice. 
 
 3. A third reason is sometimes given, that a libel is more 
 likely to lead to a breach of the peace. But I doubt if this is 
 so. A man would be more tempted to personally chastise a 
 
 u L'
 
 4 INTRODUCTION. 
 
 villain who slandered him to his face, than a libeller who 
 lampooned him in the papers. Even if it were so, it would 
 tend to explain why libel is a crime and slander not, rather 
 than to account for the distinction just pointed out between 
 the evidence required in the respective civil actions. For this 
 is a further important difference between Slander and Libel : 
 that for every libel criminal proceedings may be taken by way 
 of information or indictment, i f th e person defamed does not 
 desire damages : whereas a slander, unless it be blasphemous, 
 seditious, or obscene, is not criminal at all. 
 
 Neither do the first two reasons assigned appear any more 
 satisfactory to Mr. Starkie than this last one does to me. He 
 urges with great force in his Commentary prefixed to " Folkard 
 on Slander and Libel," 4th edition, p. 28, that the distinction 
 taken by our law between slander and libel in this respect 
 " must be regarded as an absolute peremptory rule, not founded 
 on any obvious reason or principle. If damage is to be pre- 
 sumed from publishing such a charge in w^riting, why is not 
 some damage also to be ''presumed from publishing the fact 
 orally % The extent of publicity, and quantity of damage to be 
 presumed in the one case rather than in the other, is obviously 
 casual and uncertain, and rather affects the measure and 
 quantum of damages than any principle of civil liability." 
 And so again on p. 31, " the extent of mischief merely affects 
 the quantum of damages, and not the right of action." But 
 with all deference to the learned author, the mischief com- 
 plained of is the injury to the plaintiff's reputation and not the 
 pecuniary damage he has suffered ; and in discussing whether 
 any such injury has been inflicted to any appreciable degree 
 surely the mode and extent of the publication of the defamatory 
 words are relevant matters for enquiry. The expression " quantum 
 of damages " when applied to this question is misleading ; for it 
 implies that some damages at least are clearly due, and that the 
 only question is how much. Whereas, once grant that even 
 nominal damages are due and cadit qucestio : thei'e is no 
 longer any distinction between slander and libel, as soon as it 
 is admitted that the action lies. It is precisely where it is not 
 clear that any injury at all has been inflicted, where no 
 pecuniary damage is proved, and the Court is doubting if any 
 right of action exists, that the distinction adverted to arises.
 
 INTRODUCTION. 5 
 
 The Courts, in the absence of any evidence of special damage, 
 must either nonsuit the plaintiff, or say, " From the nature of 
 the words used, and the circumstances in which they were 
 uttered or published, we can see that they nius,i have injured 
 the plaintiff's reputation." And they are more inclined, and 
 rightly more inclined, to take the latter course when the words 
 are printed and published to the world than where they are 
 merely uttered to a few. Anyhow the distinction has been 
 recognised in English law by Hale, C.B., in Kiw] v. La]ie, 2 
 Vent. 28, Hardres, 470 ; by Lord Hardwicke, C. J., in Bradley v. 
 Metlnvyn (1737), Selw. N.P., 982, and by Lord Mansfield, C.J., 
 in Thoiiey v. Lord Kerry, 4 Taunt. 855, 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 Avords were 
 employed is as a rnle immaterial. If the defendant has 
 in fact injnred the plaintiff's reputation, he is liable, 
 although he did not intend so to do, and had no such 
 pui-pose in his mind when he spoke or wi'ote the words. 
 Every man must be presumed to intend and to know the 
 natm-al and ordinary consequences of his acts : and this 
 presumption (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 mthout thought or fear of the consequences f 
 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 
 XH'Oved that the defendant was actuated by some special 
 spite or some wicked and malicious motive. (See post^ 
 Chapters YIII. and IX.) But in all other cases (although 
 the pleader invariably alleges that the words were spoken
 
 6 INTRODUCTION. 
 
 or jmblislied falsely and maliciously) malice in fact need 
 never be proved at the trial ; the ^vords are actionable, 
 if false and defamatory, although spoken or published 
 accidentally or inadvertently, or with an honest belief in 
 their truth. 
 
 Illustrations. 
 
 Tlie Protestant Electoral Union jDublished a book called " The Con- 
 fessional Unmasked." Their motive in so doing was " :iot only innocent 
 but praiseworthy," viz. : — to promote the spread of the Protestant religion, 
 by exposing the abuses of the Eoman Catholic system ; but certain passages 
 in the book were necessarily oliscene. Held that its publication was a 
 misdemeanour. 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. Hicklin, 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. 
 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 R. v. Bradlaugh d: Besant, 2 Q. B. D. 569 ; 46 L. J. 
 M. C. 286. 
 If a man deliver by mistahe a paper out of his study Avhere he has just 
 written it ; he Avill it seems be liable 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 ; cf. R. v. Paine, 
 5 Mod. 167. 
 The plaintiff told a laughable story against himself in company : the 
 defendant published it in the newspaper to amuse his readers, assuming 
 that the plaintiff would not object. The j^laintiff recovered damages, .£10. 
 Cool- v. JFard, 6 Ring. 409 ; 4 M. & P. 99. 
 For though he told it of himself to his friends, he by no means courted 
 public ridicule. And that the publication was " onli/ in jest," has long been 
 held no defence. 
 
 Where a clergyman in a sern:on recited a story out of Fox'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 
 discourse, — the words being delivered only as a matter of history, and not 
 with any intention to slander, it was adjudged for the defendant. 
 
 Ch-eenwood v. Prick, Cro. Jac. 91, cited in 1 Camp. 270 ; and also in 
 R. V. Williams, 13 How. St. Tr. 1387. 
 But Lord Denman and the court of Q. B. said most positively in Hearner. 
 Stowell, 12 A. & E. 726, that this case is not law. Mr. Greenwood would 
 therefore in the present day have recoveretl at least nominal damages.
 
 INTRODUCTION. 7 
 
 A barrister, editing a book on the Law of Attorneys, referred to a case, 
 He, Blake, 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 r«port. The publishers were 
 held lial)le for this carelessness, although of course neither they nor the 
 writer bore Mr. Blake any malice. Damages £100. 
 
 FAale v. Btevens and others, 4 F. & F. 232 ; 11 L. T. 543. 
 
 The printers of a newspaper Ijy a mistake in setting up in tj^pe the 
 announcements from the London Gazette, placed the name of the plaintiff's 
 firm under the heading "First Meetings under the Bankruptcy Act" 
 instead of under " Dissolutions 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 suggestion 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. 
 
 Shepheard v. Whita'ker, L. E. 10 C. P. 502 ; 32 L. T. 402. 
 
 False defamatory ^vords then, if spoken, constitute a 
 slander : if AVi'itten and published, a libel. The word 
 "wiitten" includes any i^rinted, painted, or any other 
 permanent representation not transient in its nature as 
 are sp'oken words. 
 
 The ^^T.'iting 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-pencil {Geary v. Physic, 5 B. & C. 238), or in 
 chalk, &c. A picture or efhgy may also be a libel, or 
 any other mark or sign exposed to view and conveying 
 a defamatory meaning. (5 Eep. 125.) 
 
 A libel is defined in the Civil Code of the State of 
 I^ew York, s. 29, to be a '' false and unprivileged publica- 
 tion by wiiting, printing, picture, effigy, or other fixed 
 representation to the eye, which exposes any person to 
 hatred, contempt, ridicule, or obloquy, or which causes 
 him to be shunned or avoided, or which has a tendency 
 to injure him in his occupation." 
 
 By s. 30 of the same code, a slander is defined to be 
 " a false and unprivileged publication, other than libel.
 
 INTRODUCTION. 
 
 which . . . . by natural consequence causes . 
 
 damage." 
 
 Illustrations. 
 
 A caricature or scandalous painting is a libel. Anon. 11 Mod. 99. 
 Austin V. Cnli^epiier, 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 con- 
 veniently be brought into Court, secondary evidence may be given of the 
 inscription. 
 
 Mortimer v. M'Callan, 6 M. & W. 58. 
 See Spall v. Massey and others, 2 Stark. 559. 
 A statue may be a libel ; so is fixing up a gallows against a man's door. 
 
 HaAvldns' Pleas of the Crown, 8th edition, 542 ; 5 Rep. 125, b. 
 Hieroglyphics, a rebus, an anagram, or an allegory may be a libel. 
 Ironical jiraise may be a libel. 
 
 A man's reputation may also be injiu'ed 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 arc not within the scope of the present 
 
 treatise. 
 
 Illustrations. 
 
 A banker having in his hands sufficient funds belonging to his customer 
 dishonours his cheque : the customer may recover substantial damages, 
 ■svithout proof of any special damage ; for it is clear that such an act must 
 injure the customer's reputation for solvency. 
 
 Marzetti v. Williams, 1 B. & Ad. 415. 
 
 PioUnson v. Marchanf, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 
 
 156. 
 Eolin and another \. Steward P. 0., 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 ; the neighbours consecjuently deemed the plaintiff insolvent. The 
 plaintiff was held entitled to suljstantial 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 plaintiflf's 
 dwelHng-house and kept it burning in the daytime, thereby inducing the 
 passers-by to believe tliat plaintiflf'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. 
 
 Jefferies v. Duncombe, 2 Camp. 3 ; 11 East, 226. 
 SjmU y. Massey, 2 Stark. 559. 
 Plunket V. Gilmore, Fortescue, 211.
 
 INTRODUCTION. 9 
 
 And so as to " riding Skimmington," " rough music," burning in eftigy, 
 and other modes of holding a man up to public ohlo(iuy without especial 
 words of defamation, 
 
 See /Sm" William Bolton v. Dean, cited in Austin v. Culpcpjw, 
 
 Skin. 123 ; 2 Show. 313. 
 Mason v. Jennings, Sir T. Eaj^m. 401. 
 Cropp V. Tilney, 3 Salk. 226. 
 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 without reasonable or probable cause. 
 
 In Roman law there are many instances given in v*hich a man's reputa- 
 tion was assailed, not by words, Init by acts. E.g. : 
 
 (i.) By refusing to accept a solvent person as surety for a debt, intend- 
 ing 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, 10, 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, or a youth still wearing the prajtexta, 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 op- 
 pressing you. (D. 48, 16, 28, 7) ; though it is dithcvdt to see in 
 this case how it was determined Avho was the right plaintiff. 
 
 The person defamed has a civil remedy to recover 
 damages, and in some cases he can also proceed criminally 
 by way of information or indictment, and have the 
 dcfamer 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 whatever he chooses of another,
 
 lo INTRODUCTION. 
 
 subject only to this, that lie must take the consequences, 
 should a jury deem his words defamatory. This is what is 
 meant by " the liberty of the j)ress." 
 
 "The liberty of the press," says Lord Mansfield, in 
 R. Y. Dean of St. Asaph., 3 T. E. 431, n., " consists in 
 printing without any previous licence, subject to the 
 consequences of law." Lord Ellenborough says in 
 R. y. Cohhett, 29 Howell'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 preliminary 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 illegal." Lord 
 Xenyon shortly puts it thus in R. v. Cidhell., 27 Howell's 
 St. Tr. 675 : "A man may publish anything which 
 twelve of his countrymen think is not blamable." 
 
 But it was by do moans 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 jiroportion 
 of any nation is disaffected towards the Government, to allow a 
 free press is almost impossible. 
 
 (i.) The first plan adopted by our Enghsh 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 super- 
 vision 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 Stationers' Company of London was 
 formed. The exclusive privilege 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 all publications by men 
 outside their guild. Later, by a decree of the Star Chamber 
 in 1586, one printing press was allowed to each Universit3\ 
 
 (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
 
 CENSORSHIP OF THE PRESS. ii 
 
 all books read over by loyal bishops and privy councillors before 
 they were allowed to go to the official press. In 1586 the Star 
 Chamber enacted that all books should be read over in manu- 
 script, 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 down to the middle of 
 the last century; see the prefaces to Burrows' and Douglas' 
 Keports). Subsequently the Master of the Eevels usurped the 
 right of revising poems and plays, and the Vice-Chancellors of 
 the Universities were allowed for convenience sake to license 
 books to be printed at the University presses. It was soon 
 found impossible to restiict the number of printing-presses in 
 the country, and the government therefore insisted all the more 
 vehemently 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 " Im2yrhnatur"=" let it 
 be printed," was still used to denote the consent of the licenser 
 to its 2^ublication. 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 " Areopagitica " 
 (November 24th, 1644). The censorship of the press continued 
 in England till 1695, and then its abolition was rather acci- 
 dental than otherwise. (See Macaulay's " History of England," 
 c. xix., vol. iii., pp. 399—405 ; 13 & 14 Car. II., c. 33 ; Pro- 
 clamation of May 17th, 1680 ; 1 Jac. II., c. 17.) 
 
 (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 book- 
 sellers, and prevent the publisher from issuing any fi;rther 
 copies. The Lord Lieutenant was till the year 1875 em- 
 powered to do this in Ireland, should any work appear to him
 
 12 INTRODUCTION. 
 
 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 indiscriminate sale or distribution of aoy work, 
 however pernicious they may deem it to be. 
 
 (iv.) Our present law permits any one to say, Avrite, and 
 publish what he pleases ; but if he make a bad use of this 
 liberty, he must be punished. If he unjustly attack an indi- 
 vidual, 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 inculcated, the offender can be tried for 
 the misdemeanour either by information or indictment. In order 
 that the criminal might be easily detected, it v/as enacted in 
 1712 that no person, under a penalty of ;620, 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. 118, 
 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 dispei-sed must bear on 
 it tlie name and address of the printer (2 & S 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). Newspapers 
 were indeed formerly regarded with gi-eat 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 per- 
 mitted to publish political news. Even their size was regulated 
 by statute. The G Geo. IV., c. 119, first allowed newspapers 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. GO, the freest in the 
 world.
 
 INJUNCTION. 13 
 
 The only vestige remaining of such censorship is the 
 control of the Lord Chamberlain over plays. By the 
 Theatres Eegulatiou Act, 1843 (6 & 7 Vict. c. 68), s. 14, 
 it is enacted that it shall be lawful for the Lord 
 Chamberlain for the time being, Avhenever he shall be 
 of oj^tinion 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 anj^ 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. 
 
 ISTo injunction can be obtained to prohibit the publica- 
 tion or republication of any libel, or to restrain its sale. 
 Prudential Assurance Co. v. Knott, L. E. 10 Ch. 142 ; 
 44 L. J. Ch. 192 ; 23 W. E. 249; 31 L. T. 866. The 
 matter must first go before a jury, who are to decide 
 whether the words complained of are libellous or not. 
 The Crown has no authority to restrain the press ; and 
 the courts, whether of Law or of Equity, cannot, till 
 after verdict, issue any injunction in respect of any 
 libels, save such as are contempts of Court. [Saxhy v. 
 EasterhrooJc, 3 C. P. D. 339 ; 27 W. E. 188.) 
 
 There has been a sti^ange conflict of authority on this point. 
 As long ago as 1742, it was clearly laid down in Roach v. Read 
 and another, 2 Atk. 469 ; 2 Dick. 794, that Courts of Equity had 
 no jurisdiction over actions of Ubel and slander, whether public 
 or private, except as contempts of their own Courts. The Courts 
 of Common Law had at that time no power to grant injunctions 
 at all. No doubt in the early days of arbitrary prerogative the 
 Court of Star Chamber occasionally restrained the publication 
 of works alleged to be seditious. But Scroggs was impeached 
 for attempting to introduce the practice into the King's Bench. 
 However, in Du Bost v. Beresford, 2 Camp. 512, Lord Ellen- 
 borough, in deciding that a libellous picture could have no legal 
 value as a work of art, said : " Upon an application to the Lord
 
 14 
 
 INTRODUCTION. 
 
 Chancellor, lie would have granted an injunction against its 
 exhibition, and the plaintiff was both civilly and criminally 
 liable for having exhibited it." This, however, was a mere obiter 
 clictum, and is said to have greatly surprised all practitioners 
 in the Courts of Equity ; it was expressly disavowed by Lord 
 Campbell in the case of the Emperor of Austria v. Day and 
 Kossuth, 3 De G. F. & J. 217, 239 ; 7 Jur. N. S. 639 ; 30 L. J. 
 Ch. 690. It is, however, stated in the note to Southey v. 
 Shertvood, 2 Mer. p. 441, that in a case of Burnett v. Chetivood, 
 Lord Chancellor Parker granted an injunction to restrain the 
 printing and publishing of a translation into English of a book 
 written in Latin, and which he thought had better remain in 
 Latin; "he looked upon it," he said, "that this Court had a 
 superintendency over all books, and might in a summary way 
 restrain tlie printing or publishing [of] any that contained 
 reflections on religion or morality." The application was 
 aj)parently made by an executor in order to protect his copy- 
 right in a book written by his testator; but the whole report 
 is of very doubtful authority, being merely a note of the case 
 extracted from a manuscript volume of uncertain authorship. 
 See also Gurncy v. Longman, 13 Ves. 493, 507; Bathurst v. 
 Kearsley, ih., 494. In Chirlx: v. Freernan, 11 Beav. 112; 17 
 L. J. Ch. 142 ; 12 Jur. 149, Lord Langdale, M.R., laid it down 
 most clearly that a Court of Equity w'ould not interfere by 
 injunction to prevent the publication of a libel, saying that if it 
 did so it would be "reviving the criminal jurisdiction of the 
 Star Chamber." And in Fleming v. Newton, 1 H. L. C. 363, 
 Lord Cotteuham was most distinctly of opinion that, whatever 
 niceties might be shown to exist in Scotch law, such an inter- 
 ference with the liberty of the press was contrary to every 
 principle of English law. See also the observations of Lord 
 Eldon in Gee v. Pritchard, 2 Swan. 413, and of Sir L. Shad- 
 well in Martin v. Wright, 6 Sim. 297. 
 
 In this state of the authorities, Malins, V.C, in Springhead 
 Spinning Co. v. Riley, L. R. 6 Eq. 551 ; 37 L. J. Ch. 889 ; 16 
 W. R. 1138 ; 19 L. T. 64, and Dixon v. Holden, L. R. 7 Eq. 
 488 ; 17 W. R. 482 ; 20 L. T. 357, introduced an exception to 
 the rule ; for he decided that a Court of Equity had jurisdiction 
 to restrain the publication of any document, which tended to 
 the destruction or deterioration of the plaintiff's property, or
 
 INJUNCTION. 15 
 
 even of the plaintiff's professional reputation by which property- 
 is acquired. This decision professed to follow that of Lord 
 Langdale, M.R., in Roiitli v. Webster, 10 Beav. 501, in which 
 case an injunction was granted to restrain, not indeed a libel, 
 for there was none, but an improper and unauthorized use by the 
 defendants of the plaintiff's name as a trustee of the defendant's 
 joint-stock company. In a subsequent case, Mulkern v. Wanly 
 L. B. 13 Eq. 019 ; 41 L. J. Ch. 404 ; 20 L. T. 831, Wickens, 
 V.C, commented very strongly on the decision in Dixon v, 
 Holden, as introducing a " wholly new " rule, and one contrary 
 to the previous decisions ; and refused the injunction therein 
 prayed for, as a violation of the liberty of the press. See also 
 James v. James, L. R 13 Eq. 421 ; 41 L. J. Ch. 258 ; 20 L. T. 
 508 ; Clover v. Royden, L. R. 17 Eq. 190 ; 43 L. J. Ch. 005 ; 
 22 W. R. 254 ; 29 L. T. 039 ; and the American cases of 
 Brandreth v. Lance, 8 Paige 24 ; and Hoyt v. McKenzie, 3 
 Barb. Ch. K 820. 
 
 All doubts on the point were finally set at rest by the Court 
 of Appeal in Prudential Assurance Co. v. Knott, L. -B. 10 
 Ch. 142 ; 44 L. J. Ch. 192 ; 23 W. R. 249 ; 81 L. T. 800 ; 
 where a very strong Court (Lord Cairns, L.C., and James and 
 Mellish, L.JJ.), decided that the Court of Chancery has no 
 jurisdiction to restrain the publication of a libel as such, even if 
 it is injurious to property ; and expressly overruled Dixon v. 
 Holden and Springhead Spinning Co. v. Riley. This deci- 
 sion was followed by tlie Court of Appeal in Fisher and Co. 
 V. Apollinaris Co., L. R. 10 Ch. 297 ; 44 L. J. Ch. 500 ; 
 28 W. R. 400 ; 82 L. T. 028, and in Ireland in Hammer- 
 smith Skating Rink Co. v. Dublin Skating Rink Co., 10 
 Ir. R. Eq. 235. Vice-Chancellor Malins, however, appears 
 to remain of the same opinion still ; for in Thorleys Cattle 
 Food Co. V. Massam, Ch. D. 582 ; 40 L. J. Ch. 713, he 
 decided that the decision of the Court of Appeal Avas in 
 some way controlled or overruled by sub-s. 8 of s. 25 
 of the Judicature Act, 1878, which had come into force in 
 the meantime. But it has since been most clearly laid down 
 by James, L.J., that that sub-section in no way alters the 
 principles on which a Court of Equity should act in granting 
 injunctions; Day v. Brownrigg, 10 Ch. D. 307 ; 48 L. J. Ch. 
 173; 27 W. R. 217; 39 L. T. 220, 553; Ga.^kin v. Balls, 13
 
 i6 INTRODUCTION. 
 
 Ch. D. 824 ; 28 W. K 5.52. And Lord Coleridge, C.J., appears 
 to be of the same opinion in 3 C. P. D. SIS. The decision of 
 Malins, V.C., on the interlocutory application in Thorleys Cattle 
 Food Co. V. Massam, must therefore be considered to be over- 
 ruled, as well as his previous decision in Dixon v. Holden; and 
 the Master of the Rolls has, according to Lindley, J., 3 C. P. D. 
 342, refused to follovf it (probably in Hinrichs v. Bevndes, 
 Weekly Notes for 1878, p. 11). 
 
 But these decisions in no way interfere with what is obviously 
 quite a different matter — the right of the plaintiff to claiui an 
 injunction on his writ in addition to damages, such injunction 
 to be granted by the judge only after the jury have found the 
 publication complained of to be a libel. Libel or no libel is 
 pre-eminently a question for a jury, but after they have once 
 decided it, the judge may, if he is of opinion that any repetition 
 of the libel would be injurious to the plaintiff's property, grant 
 an injunction restraining any repetition thereof, Saxhy v. Easter- 
 brook, 3 C. P. D. 33<) ; 27 W. R. 188. Thorlei/s Cattle Food Co. 
 v. Massam, 28 W. R. 295 ; 41 L. T. 542 ; (C. A.) 14 Ch. D. 763 ; 
 28 W. R. 9C6 ; 42 L. T. 851 ; Thomas v. Williams, 14 Ch. D. 
 804 ; 49 L. J. Ch. G05 ; 28 W. R. 983 ; 43 L. T. 91. See also 
 the remarks of Lord Langdale, M.R., in Clark v. Freeman, 
 11 Beav. 117, 8 ; and of the present Master of the Rolls in 
 Hinrichs v. Berndes, Weekly Notes for 1878, p. 11. 
 
 As to what libels amount to contempt of Court, see jwst, 
 c. XVII., Seditious Libels.
 
 CHAPTER II. 
 
 DEFAMATORY WORDS. 
 
 Words which produce any appreciable injury to the 
 reputation of another are called Defamatory. 
 
 Diffamarc est in mala famd ijonere (Bartol.). The 
 question in each case therefore is : Has the reputation 
 of this individual plaintiff been appreciably impau'ed in 
 consequence of the words employed by the defendant ? 
 No general rule can be laid down stating absolutely and 
 beforehand 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 OA\TL 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 k 19 Vict. c. 41. So now it is 
 convenient to use the word " Defamation " as a general term 
 embracing both " Slander " and " Libel." 
 
 If in any given case the words employed by the 
 defendant have appreciably injiu^ed the plaintiff 's reputa- 
 tion, then the plaintiff has suffered an injuria^ which is 
 actionable without proof of any damage. Every man 
 has a right to be protected from defamation, as much' as 
 from assault or bodily harm. " His reputation is his 
 proj)erty, and if possible more valuable than other 
 property " (^iwr Malins, Y. C, in Dixon v. Holden, L. R. 
 7 Eq. 492 ; 17 W. R. 482 ; 20 L. T. 357) ; and just as
 
 1 8 DEFAMATORY WORDS. 
 
 any invasion of a man's property is actionable witliout 
 proof of any pecuniary loss, so is any disparagement of 
 his reputation. Every man has a right to his good name, 
 a right which no one may violate. And such a right is 
 a real right ; all men are bound to forbear fi'om all such 
 imputations against him as would amount to injuries to 
 his reputation (2 Austin's Jurisprudence, p. 51). " It 
 was the rule of Holt, C.J., to make words actionable 
 whenever thej^ sound to the disreputation 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. Ilei/ward, 8 Mod. 24, re- 
 ferring perhaps to Baker v. Pierce, 6 Mod. 24.) 
 
 Whenever these Avords clearly " sound to the dis- 
 reputation " of the plaintiff, there is no need of further 
 proof, they are defamatory on the face of them, and 
 actionable per se. The injiu'y to the reputation is the 
 gist of the action, and wherever that is clear, there is no 
 need to inquire whether there is any injurj^ to the pocket 
 as well. But Adhere it is by no means clear from the 
 words themselves that they must have injured the 
 plaintiff's reputation, there the Court requires proof of 
 some special damage to show that as a matter of fact the 
 words have in this case impaired the plaintiff's good 
 name. Proof of this kind is, as we have seen, required 
 more frequently in actions of slander than of libel. 
 Words which are merely uncivil, Avords of idle abuse, 
 are clearly no ground for an action, unless it can be 
 shoAvn that in fact some appreciable damage to the 
 plaintiff has followed from their use. 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
 
 GIST OF THE ACTION. 19 
 
 or libel. If the language published has uot occasioned the 
 plaintiff pecuniary loss (actual or implied), then no action can 
 be maintained " (c. iv. § 57). Surely 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. Is it not clear that injury to the 
 plaintiff's reputation is the gist of the action, and special 
 damage is but evidence of that injury % Every man has an 
 absolute right to have his person, his property, and his reputa- 
 tion preserved inviolate. Bacon commences his tract on the 
 Use of the Law by this express declaration : — " The Use of the 
 Law consisteth principally in these three things : 
 
 " 1. To secure men's persons from death and violence. 
 
 " 2. To dispose the property of their goods and lands. 
 
 " 3. For preservation of their good names from shame and 
 infamy 
 
 "If any man beat, wound or maime another, or give false 
 scandalous words that may touch his credit, the Law giveth 
 thereupon an action of the case, for the slander of his good 
 name ; and an action of Battery, or an appeale of Maime, by 
 Avhich recompence shall be recovered, to the value of the hurt, 
 dam mage or danger." Mr. Townshend would reduce Bacon's 
 three uses of the law to two ; for he implies that the law will 
 not redress a mere injury to the reputation unless it be accom- 
 panied by an injury to the person or the property of the plain- 
 tiff. Bacon merely requires that the words should " touch the 
 l^laintiff's credit ;" where it is not obvious that the words must 
 have that result, then the plaintiff must bring evidence of some 
 material loss which will show that his credit has in fact been 
 touched. 
 
 And how does Mr. Townshend get over the fact that in nine 
 cases of defamation out of every ten the plaintiff is never called 
 on to prove that " pecuniary loss " which he maintains to be the 
 gist of the action ? He has recourse to that time-honoured 
 expedient, a legal fiction. He insists " that, where the law does 
 protect reputation, it does so indirectly, by means of a fiction — 
 an assumption of pecuniary loss. In theory, the action for 
 slander or libel is always for the pecuniary injury, and not for the 
 injury to the rej)utation. There are many such fictions intro- 
 duced into the administration of the law, by means of which, 
 ■without changing the rule of law, the law is, in effect, changed."
 
 20 DEFAMATORY WORDS. 
 
 That there be many such fictions is surely no ground for in- 
 creasing their number by inventing a fresh one. And what an 
 absurdity such a fiction would be. If I assert that the Prime 
 Minister stole a penny bun, the law will solemnly presume, says 
 Mr. Townshend, that the Prime Minister thereupon instantly 
 incurred a money loss of, say, .£50. And how capricious is this 
 fiction. For had I been content with calling the Prime 
 Minister a liar, the law wonld not presume the loss of a farthing. 
 Such a fiction also is opposed to the history of our law ; for we 
 know that in Anglo-Saxon and in Norman times an exag- 
 gerated value was set on a man's reputation. Evidence of a 
 prisoner's good character would insure his acquittal of any 
 crime. In short, all that is required by our common law is 
 that the injury to a man's reputation should be appreciable, i.e.. 
 capable of being assessed by a jury. And so no action lies for 
 mere words of vulgar abuse, or for words which have inflicted 
 no substantial injury on the plaintiff's reputation, on the 
 principle Be oninlmis non curat lex. 
 
 It is the more strange that Mr. Townshend should have made 
 such an error ; because the language of the Judges in his own 
 country is clear and express. Thus the Court of Appeals in 
 New York lays down the law most distinctly in the following 
 words : " The action for slander is given by the law as a remedy 
 for ' injuries affecting a man's reputation or good name by 
 malicious, scandalous, and slanderous words tending to his 
 damage and derogation.' — 3 Bl. Com. 123. It is injuries affect- 
 ing the reputation only which are the subject of the action." 
 And then after referring to some examples of special damage, 
 the Court continues : " These instances are sufficient to illus- 
 trate the kind of special damage that must result from de- 
 famatory words not otherwise actionable to make them so ; 
 they are damages produced by, or through, impairing the re- 
 putation. . . . The words must be defamatory in their nature ; 
 and must in fact disparage the character ; and this disparage- 
 ment must be evidenced by some positive loss arising therefrom 
 
 directly and legitimately as a fair and natural result 
 
 The special damages must flow from impaired reputation 
 
 The loss of cliaracter must be a substantive loss, one which has 
 actually taken place." Terwilliger v. Wands, 3 Smith (17 N. 
 y. R.) 59, 63. It is clear from these expressions and also from
 
 LIBEL. 21 
 
 the judgment in Wilson v. Goit, in the same volume, p. 443, 
 that the Court of Appeals in New York considered that the 
 loss of i-eputation was the gist of the action, and that special 
 damage is but evidence of loss of reputation, and is necessary 
 only where without some such evidence it would not be clear 
 that the plaintiff's reputation had in fact been impaired. 
 
 PAET I. 
 
 LIBEL. 
 
 In cases of libel, any words will be presumed defama- 
 tory which expose the plaintiff to hatred, contempt, 
 ridicule, or obloquj', which tend to injure him in his 
 profession or trade, or cause him to be shunned or 
 avoided by his neighboui'S. 
 
 " 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 G'Bnen v. Clement^ 
 15 M. & W. 435.) The words need not necessarily 
 impute disgraceful conduct to the plaintiff ; it is sufficient 
 if they render him contemptible or ridiculous. {Cropp v. 
 Tilney, 3 Salk. 226 ; Villers v. Momley, 2 Wils. 403.) 
 
 Any written words are defamatory which impute to 
 the plaintiff that he has been guilty of au}" crime, fraud, 
 dishonesty, immorality, vice, or dishonoui-able conduct, 
 or has been accused or suspected of any such misconduct ; 
 or which suggest that the plaintiff is suffering from any 
 infectious disorder ; or which have a tendency to injure 
 him in his office, j)i'ofession, 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 of him in the minds of right-thinking 
 men, tend to deprive him of friendly intercourse and 
 society.
 
 22 DEFAMATORY WORDS. 
 
 A libel need not necessarily be in writing or printing. 
 Any caricature or scandalous printing, or effigy, will 
 constitute a libel. (5 Eep. 125^. ; Anon. 11 Mod. 99 ; 
 Austin Y. Culpepper.^ 2 Show. 313; Skin. 123; Jefferies 
 V. Dimcomhe^ 11 East, 226 ; Du Bost v. Bercsford., 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. 
 
 Illudrations. 
 
 It is libellous to write and publish of a man that he is — 
 " an infernal villain," 
 
 Bdl V. Stone, 1 B. & P. 331 ; 
 " an impostor," 
 
 Cooke V. Hughes, E. & M. 112. 
 
 Camfhell v. Spottiswoode, 3 B. & S. 769 ; 32 L. J. Q. B. 185 ; 9 
 Jur. N. S. 1069 ; 11 W. E. 569 ; 8 L. T. 2(>1 ; 
 " a hypocrite," 
 
 Thoiiey v. Lord Kerry, 4 Tannt. 355 ; 3 Camp. 214 n. ; 
 " a frozen snake," 
 
 Hoare v. Silverlock (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 inevitaldy 
 cover " gentlemen " with ridicule and disrepute,"' 
 
 TFaJdey v. Healey, V C. B. 591 ; 18 L. J. C. P. 241 ; 
 that " he grossly insulted two ladies," 
 
 Clement v. Chivis, 9 B. & C. 172 ; 4 M. & E. 127 ; 
 Lhat " he is unfit to be trusted with money," 
 
 Cheese v. Scales, 10 M. & W. 488 ; 12 L. J. Ex. 13 ; 6 Jur. 958 ; 
 that " lie is insolvent and cannot pay his debts," 
 
 Metropolitan Omnibus Co. v. Hmrkins, 4 H. & N. 146 ; 28 L. J. 
 Ex. 201 ; 5 Jur. N. S. 226 ; 7 W. E. 265 ; 32 L. T. (Old S.) 281 ; 
 that " he was once in difficulties," though it is stated that such ditficulties 
 are now at an end, 
 
 Cox v. Lee, L. E. 4 Ex. 284 ; 38 L. J. Ex. 219 ;
 
 LIBEL. 23 
 
 that he is "the most artfiil scoundrel that ever existed," "is in every 
 IDerson's debt," and that "his ruin cannot be long delayed," and 
 that "he is not deserving of the slightest commiseration," 
 
 Rutherford v. Evans, 6 Bing. 451 ; 8 L. J. (Old S.) C. P. 86 ; 
 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," 
 
 FAnmi v. Stuart, 1 T. E. 748 ; 2 Smith's L. C. 6th ed. 57 ; 
 B. v. Saunders, Sir Thos. Raym. 201 ; 
 that the j)laintiff sought admission to a club and was black-ljalled, and 
 bolted the next morning without paying his debts, 
 
 O'Brien v. Clement, 16 M. & W. 159 ; 16 L. J. Ex. 76 ; 4 
 D. & L. 343. 
 So it is libellous to write and publish of a landlord that he ^jut in a 
 distress in order to help his insolvent tenant to defraud his creditors. 
 Hairc v. TVilson, 9 B. & C. 643 ; 4 M. & R. 605. 
 It is libellous for a defendant to write a letter charging his sister with 
 having unnecessarily made him a party to a Chancery suit, and adding " it 
 is a pleasure to her to put me to all the expense she can." 
 •^~"^"' Fray v. Fray, 17 C. B. N. S. 603 ; 34 L. J. C. P. 45 ; 10 Jur. 
 K S. 1153. 
 It is libellous to write of a lady applying for relief from a charitable 
 society, that her claims are unworthy, and that she spends all the money 
 given her by the benevolent in printing circulars filled with al)use of the 
 society's secretarJ^ 
 
 Huare v. Siloerlock (No. 1, 1848), 12 Q. B. 624 ; 17 L. J. Q. B. 
 306 ; 12 Jur. 695. 
 To state in writing that the plaintiff is insane, or that her mind is affected 
 is libellous, if false. 
 
 Morgan v. Lingen, 8 L. T. 800. 
 Ironical praise may be a libel ; e.g., calling an attorney " an honest la^^7•er." 
 Boydell v, Jones, 4 M. & W. 446 ; 7 Dowl. 210 ; 1 H. & H. 408. 
 B. V. Broivn, 11 Mod. 86 ; Holt, 425. 
 Sir Baptist Hicks' Case, Hob. 215 ; Poph. 139. 
 It is libellous to impute to a Presbyterian " gross intolerance " in not 
 allowing his hearse to be used at the funeral of his Roman Catholic servant. 
 Teacy v. McKenna, Ir. R. 4 C. L. 374. 
 It is 2)rimd facie libellous to charge the plaintiff wit h ingra titude even 
 though the facts on which the charge is based be stated, and they do not 
 bear it out. 
 
 Cox V. Lee, L. R. 4 Ex. 284 ; 38 L. J. Ex. 219. 
 It is libellous to state in a newspaper of a young nobleman that he drove 
 over a lady and killed her and yet attended a public ball that very evening 
 (although this only amounts to a charge of unfeeling conduct). 
 Churchill V. Hunt, 1 Chit. 480 ; 2 B. & A. 685. 
 It is libellous to write and publish of a lady of high rank that she has 
 lier photograpli taken incessantly, morning, noon, and night, and receives a 
 commission on the sale of such photographs. 
 
 B. V. Boscnbenj, Times for Oct. 27th, 28th, 1879.
 
 24 DEFAMATORY WORDS. 
 
 It is a libel to impute or imply that a grand jury have found a true bill 
 against the plaintiff for any crime. 
 
 Harvey v. French, 1 Cr. & M. 11. 
 It is libellous to publish a highly coloured account of judicial proceed- 
 ings, mixed with the reporter's o^yn observations and conclusions upon 
 what passed in Court, containing an insinuation that the plaintiff had com- 
 mitted perjury. 
 
 Stiles V. Nokes, 7 East, 493 ; same case sub nomine Carr v. Jones, 
 
 3 Smith, 491. 
 
 It is libellous to write and publish of the editor of a paper that he is 
 
 " a convicted felon " and " a felon editor ; " even although the fact is that 
 
 he was convicted of felony, and iinderwent a term of inaprisonment with 
 
 hard laboui'. 
 
 Leyman v. Latimer and others, 3 Ex. D. 15, 352 ; 46 L. J. Ex. 
 765 ; 47 L. J. Ex. 470 ; 25 W. R. 751 ; 26 W. E. 305 ; 37 
 L. T. 360, 819. 
 It is libellous to write about the plaintift''s " defalcations." 
 
 Bruton v. Doiones, 1 F. & F. 668. 
 It is libellous to write and publish of a man that a certain notorious 
 jirostitute is " under his patronage or protection." 
 
 More V. Bennett (1872), 48 N. Y. R. (3 Sickel), 472. 
 Or of a married man that his conduct towards his wife is so cruel that 
 she was compelled to summon him l^efore the magistrates. 
 
 Uahm-rll v. Lujram, 2 C. L. Rep. (1854), p. 1397. 
 It is libellous " to paint a man playing at cudgels with his wife." 
 Per Lord Holt, C. J., in Anon. 11 Mod. 99. 
 See Du Bost v. Beresford, 2 Camp. 511. 
 It is a libel on a married lady to assert that her husband is petitioning 
 for a divorce from her. 
 
 R V. Rosenberg ) ^.^^^^ ^^^ ^^^^ ^ ^ ^^^^ 
 
 R. V. Head & Marks, ) ' ' 
 
 It is lil)ellous to call a manufacturer a " truckmaster," for this implies 
 that he has been guilty of practices in contravention of the Truck Act. 
 
 Homer v. Taunton, 5 H. & N. 661 ; 29 L. J. Ex. 318 ; 8 W. R. 
 499 ; 2 L. T. 512. 
 It is libellous to charge in writing a man with having cheated at dice or 
 on the turf, although all gambling and horse-racing transactions are illegal 
 or at least void. 
 
 Ch-eviUe v. Chapman, 5 Q. B. 731 ; 13 L. J. Q. B. 172 ; 8 Jur. 
 
 189 ; D. & M. 553. 
 Yrisarri v. Clement, 3 Bing. 432 ; 11 Moore, 308 ; 2 C. & P. 223. 
 It is libellous to call a man a " black-leg " or a " black-sheep." But there 
 should be an averment that these words mean a person guilty of haliitually 
 cheating and defrauding others. 
 
 McGregor v. Gregory, 11 M. & W. 287^ 12 L. J. Ex. 204; 2 
 
 D. N. S. 769. 
 O'Brien v. Clement, 16 M. & W. 166 ; 16 L. J. Ex. 77. 
 And see Barnett v. Allen, 1 F. & F. 125 ; 27 L. J. Ex. 412 ; 4 
 Jur. N. S. 488 ; 3 H. & N. 376.
 
 LIBEL. 25 
 
 It is libellous to write and publisli of the plaintiff the following words : 
 " Digby has had a tolerable run of luck. He keeps a well-spread side- 
 board, but I always consider myself in a family hotel when my legs are 
 under his table, for the bill is sure to come in sooner or later, though I 
 rarely dabble in the mysteries of ecarte or any other game. The fellow is 
 as deep as Crockford, and as knowing as the Marquis. I do dislike this 
 leg-al profession." 
 
 I)i(jhj V. Thomi^on and another, 4 B. & Ad. 821 ; 1 N. & M. 485. 
 It is libellous to write and publish of a clergyman that he poisoned foxes 
 on the estate of Sir M. S., in a fox-hunting count)^, and had been hung up 
 in eifigy in consequence of such " dastardly behaviour." 
 R. V. Coo2oer, 8 Q. B. 533 ; 15 L. J. Q. B. 206. 
 Foukier v. Nevxomh, L. E. 2 Ex. 327 ; 36 L. J. Ex. 169 ; 15 
 W". E. 1181 ; 16 L. T. 595. 
 It is libellous to publish in a newspaper a story of the plaintiff calculated to 
 make him ludicrou s, tliough he had previously told the same story of himself. 
 ■ Uoofy. Ward, 6 Bing. 409 ; 4 IL & P. 99. 
 
 But it is not defamatory to write of another that he is " Man Friday." 
 Forbes v. King, 1 Dowl. 672 ; 2 L. J. Ex. 109. 
 Foj', as Lord Denman, C. J., observes in Hoare\. Silverloch (No. 1, 1848), 12 
 Q. B. 626 ; 17 L. J. Q. B. 308 : " That imputed no crime at all. The ' Man 
 Fridaj",' we all know, was a very respectable man, although a black man, 
 and black men have not been denoimced as criminals yet." The law is 
 otherwise in the United States. 
 
 King V. TFood, 1 N. & M. (South Car.) 184. 
 Where the defendants posted up in a public club-room the following 
 notice : " The Eev. J. Eobinson and Mr. J. K., inhabitants of this town, not 
 being persons that the proprietors and annual suT)scribers think it proper 
 to associate with, are excluded this room ; " this was held no libel. 
 Robinson v. Jermyn, 1 Price, 11. 
 It is not libellous to publish in a newspaper that the plaintifl' has sued 
 his mother-in-law in the County Court. 
 
 Cox V. Cooi)er, 12 W. E. 75 ; 9 L. T. 329. 
 The following words are no lil)el (in their obvious and natural meaning 
 at all events) : — " Society of Guardians for the Protection of Trade against 
 Swindlers and Sharpers. I am directed to inform you that the persons using 
 the firm of Goldstein & Co. are rejwrted to this Society as improper to be 
 proposed to be balloted for as members thereof." The judgment would 
 have been otherwise, had there been an averment that it was the custom of 
 the society to designate swindlers and sharpers by the term " improper 
 persons to be members of this society." 
 
 Goldstein v. Foss, 6 B. & C. 154 (in Ex. Ch.) 4 Bing. 489 ; 2 C. & 
 P. 252 ; 2 Y. & J. 146 ; 1 M. & P. 402. 
 It is not a libel to write and publish in the Times: — " We are requested 
 to state that the honorary secretary of the Tichbnrne Defence Fund is not 
 and never was a captain in the Eoyal Artillery as ho has been erroneously 
 described," for these words do not impute that the plaintiff had so repre- 
 sented himself. 
 
 Hunt V. GoodMe, 43 L. J. C. P. 54 ; 29 L. T. 472.
 
 26 DEFAMATORY WORDS. 
 
 It is not defamatory to write and publish of the plaintiff words implying 
 that he endeavoured to suppress dissension and discourage sedition in 
 Ireland ; for, though such words might injure him in the minds of 
 criminals and rebels, they would not tend to lower him in the estimation 
 of right-thinldng men. 
 
 ilfrtictf v. Vujoit, Ir. E. 4 C. L. 54. 
 
 And see Ckoj v. UoherU, 9 Jur. N. S. 580; 11 W. E. 649 ; 8 
 
 L. T. 397. 
 
 So a notice sent by a landlord to liis tenants : — " Messrs Henty & Sons 
 
 hereby give notice that they will not receive in payment any cheques 
 
 drawn on any of the branches of the Capital and Counties Bank," is 
 
 not defamatory. 
 
 Cuiyital & Counties Bank v. Henty <h Sons, 28 W. K. 490 ; 42 L. T. 
 314 ; (C. A.) 5 C. P. D. 514 ; 49 L. J. C. P. 830 ; 28 W. E. 851. 
 The plaintiff was a certificated art master, and had been master at the 
 Walsall Science and Art Institute. His engagement there ceased in June, 
 1874, and he then started, and became master of, another school which was 
 called " The Walsall Government School of Art," and was opened in August. 
 In September the following advertisement appeared in the Walsall Observer, 
 signed by the defendants as chairman, treasurer, and secretary of the 
 Institute respectively : — " Walsall Science and Art Institute. The public 
 are informed that Mr. Mulligan's connection with the institute has ceased, 
 and that he is not authorised to receive subscriptions on its behalf." 
 Held that this was no libel ; and that no innuendo could make it so : for 
 the words were not capable of a defamatory meaning. 
 
 Mulligan v. Cole and others, L. E. 10 Q. B. 549 ; 44 L. J. Q. B. 
 153 ; 33 L. T. 12. 
 
 If the words are not reasonably susceptible of any 
 defamatory meaning, the Conrt will hold the statement 
 of claim bad on demurrer ; or if there be no demurrer, 
 the judge at the trial will stop the case. But if the words 
 are reasonably susceptible of two constructions, the one 
 an innocent, the other a libellous construction, then it is 
 a question for the jury Avhich construction is the proper 
 one ; and in such a case if the defendant demurs, his 
 demurrer will be overruled (Jenner and another \. 
 A' Beckett, L. E. 7 Q. B. 11 ; 41 L. J. Q. B. 14 ; 20 W. E. 
 181 ; 25 L. T. 464); if the judge at the trial nonsuits, 
 the Com't will order a new trial. [Hart and another \. 
 Watl, 2 C. P. D. 146 ; 46 L. J. C. P. 227 ; 25 W. E. 373.) 
 
 The jiu-y should always read the alleged libel thi-ough 
 before deciding that its tendency is injurious. A word
 
 LIBEL. 27 
 
 at the end may niter the whole meaning. (See Ihint v. 
 Algar, 6 C. &"P. 245, ;905f, p. 100.) So if in one part 
 appears something to the plaintiff's discredit, in another 
 something to his credit, " the bane " and '' the antidote " 
 shonld be taken together. The jnry shonld not dwell on 
 isolated passages, but judge of the publication as a whole. 
 (Fcr Lord Elleuborough, C. J., in R. v. Lcmibert ^ Perry ^ 
 2 Camp. 398 ; 31 How. St. Tr. 340 ; per Lord Kenyon, 
 C. J., in R. V. Reeves, Peake Add. Cas. 84 ; per Fitz- 
 gerald, J"., in R. V. Stdlitwi, 11 Cox C. C. 58.) 
 
 Illustration. 
 
 The report of a trial for libel contained some strong observations against 
 the plaintiif, which were indeed a necessary part of the report, as the defen- 
 dant had justified. At the end it was stated that the jury found a verdict 
 for the plaintiff for ^30. Held that the publication taken as a whole was 
 not injurious to the plaintiff. 
 
 Chalmers v. Payne, 2 C. M. & R. 156; 5 Tyrw. 766 ; 1 Gale, 69. 
 
 It is libellous to impute to any one holding an office 
 that he has been guilty of improper conduct in that office 
 or has been actuated by wicked, corrupt, or selfish motives, 
 or is incompetent for the post. So it is libellous to impute 
 to a member of any of the learned professions that he 
 does not possess the technical knowledge necessary for 
 the proper practice of such profession, or that he has 
 been guilty of professional misconduct. And it is not 
 necessary (as it is in cases of slander, post, p. G9) that 
 the person libelled should at the time still hold that office 
 or exercise that profession: it is actionable to impute 
 past misconduct when in office. {Parmiter v. Couplcmd, 
 G M. & W. 108 ; Boudcll v. ^ Jones, 4 M. & W. 446 ; 
 Warman v. Iline, 1 Jur. 820 ; Goodhurne v. Boivman, 
 9 Bing. 532.) 
 
 In cases of sLaiuler there is a curious distinction drawn be- 
 tween offices of profit merely and offices of honour, such as that
 
 28 DEFAMATORY WORDS. 
 
 of justice of the peace ; and it has been held that merely to 
 impute incompetency or want of ability (as distinct from a want 
 of integrity or impartiality) to a justice of the peace is not 
 actionable, see p. 70. There is no authority, however, for sup- 
 posing that an action of libel would not lie, if such words were 
 printed and published. 
 
 Illustrations. 
 
 It is libellous to write and publish, of a Protestant archbishop that he 
 attempted to convert a Catholic priest by offers of money and of preferment 
 in the Church of England and Ireland. 
 
 Arclibislioj) of Tuam v. Robeson and another, 5 Bing. 17 ; 2 M. & 
 
 P. 32. 
 
 It is libellous to write and publish of an ex-mayor and a justice of the 
 
 peace tliat during his mayoralty he was guilty of partiality and corruption 
 
 and displayed ignorance of his duties ; and this notwithstanding the public 
 
 nature of the offices he held. 
 
 Parmiter v. Coupland, 6 U. & W. 105 ; 9 L. J. Ex. 202 ; 4 Jur. 
 
 701. 
 Goodburne v. Boumian, 9 Bing. 532. 
 It is libellous to write and publish of a clergyman that he came to the 
 performance of divine service in a towering passion, and that his conduct is 
 calculated to make infidels of his congregation. 
 JFalter v. Brorjden, 19 C. B. N. S. 65. 
 Gathercole v. Miall, 15 M. & W. 319 ; 10 Jur. 337 ; 15 L. J. Ex. 
 
 179. 
 But see Kelly v. Tinling, L. E. 1 Q. B. 699 ; 35 L. J. Q. B. 231 ; 
 12 Jur. N. S. 940 ; 14 W. E. 51 ; 13 L. T. 255. 
 It is libellous to write and publish of a dissenting minister : — " A serious 
 misunderstanding has recently taken place amongst the independent dis- 
 senters of Great Marlow and their pastor, in consequence of some personal 
 invectives publicly thrown from the pulpit by the latter against a young 
 lady of distinguished merit and spotless reputation. We understand, how- 
 ever, that the matter is to be taken up seriously." — Bucks Chronide. 
 Edivards v. Bell and others, 1 Bing. 403. 
 As to a Eoman Catholic priest, see 
 
 Heurne v. Stoivell, 12 A. & E. 719 ; 4 P. & D. 696 ; 6 Jur. 458. 
 A body of trustees of a certain charity can sue jointly for a libellous letter 
 published in the Wisbeach Chronicle impiiting to them improper manage- 
 ment of the charity funds. 
 
 Booth V. Briscoe (C. A.), 2 Q. B. D. 496 ; 25 W. E. 838. 
 
 Parish Officers, dr. 
 
 It is libellous to charge an overseer of a parish with " oppressive con- 
 d uct " towards the paupers. 
 
 JFoodard v. JJovmng, 2 M. & Ey. 74.
 
 LIBELS ON PROFESSIONAL MEN. 29 
 
 A placard stating of a certain overseer that when out of office he advo- 
 cated low rates, when in office he advocated high rates, and that the defen- 
 dant would not trust him with £h of his property, is a libel. 
 Cheese v. Bmles, 10 M. & W. 488. 
 It is libellous to accuse a vestry clerk with having in any ^vay misapplied 
 the money of the parish. 
 
 May V. Brown, 3 B. & C. 113. 
 It is libellous to charge a guardian of the poor with having been during 
 the preceding year " a great defaulter " in his account. 
 JVarman v. Hine, 1 Jur. 820. 
 It is libellous to charge the clerk to the justices of a borough with 
 corruption. 
 
 Blagg v. Sftirf., 10 Q. B. 899 ; 16 L. J. Q. B. 39 ; 11 Jur. 101. 
 It is libellous to impute habitual drunkenness and neglect of his duties 
 to a certificated master mariner. 
 
 Coxhead v. Richards, 2 C. B. 569 ; 15 L. J. C. P. 278 ; 10 Jur. 984. 
 Harwood v. Green, 2 C. & P. 141. 
 
 Inoin V. Brandimod, 2 H. & C. 960 ; 33 L. J. Ex. 257 ; 9 L. T. 
 772 ; 10 Jur. N. S. 370; 12 W. E. 438. 
 
 Medical Men. 
 
 To advertise falsely that certain quack medicines were prepared by a 
 physician of eminence is a libel upon such physician. 
 
 Clark V. Freeman, 11 Beav. 112 ; 17 L. J. Ch. 142 ; 12 Jur. 149. 
 But it is no libel to write and publish of a physician that he has met 
 homoeopathists in consultation ; although it be averred in the declaration 
 that to do so would be a breach of professional etiquette. 
 
 Clay V. Roberts, 9 Jur. (N, S.) 580; 11 W. R. 649 ; 8 L. T. 397. 
 
 Barristers. 
 
 To write and publish falsely of a barrister that he edited the third edition 
 of a law-book is actionable, if the book is proved to be full of inaccuracies 
 which would seriously prejudice the plaintiff's reputation. 
 
 Archbold V. Stved, 1 Moo. & Rob. 162 ; 5 C. & P. 219. 
 To write and publish of a barrister that he is " a quack lawyer and a 
 mountebank " and " an impostor" is actionable. 
 
 TFahle7j v. Healey, 7 C. B. 591 ; 18 L. J. C. P. 241. 
 
 Solicitors and Attorneys. 
 
 It is libellous to compare the conduct of an attorney in a particular case 
 to that of the celebrated firm of Quirk, Gammon & Snap in "Ten Thousand 
 a Year." 
 
 TFoodgate v. Ridout, 4 F. & F. 202. 
 A correct report in the Observer of certain legal proceedings was headed 
 " Shameful conduct of an attorney." Held that thu lieadiiig was a libel, 
 even though all that followed was protected. 
 
 Clement v. Lewis, 3 Br. & Bing. 2'.)7 ; 3 B. & Aid. 702 ; 7 
 Moore, 200.
 
 30 DEFAMATORY WORDS. 
 
 The libel complained of was headed—" How Lawyer B. treats his 
 clients," followed by a report of a particular case in which one client of 
 Lawj'er B.'s had been badly treated. That particular case was proved to be 
 correctly reported, but this was held insufficient to justify the heading 
 whicli implied that Lawyer B. genei-ally treated his clients badly. 
 Bishop V. Latimer, 4 L. T. 775. 
 Libel complained of, that the plaintiff, a proctor, had three times been 
 suspended firom practice for extortion. Proof that he had once been so 
 suspended was held insufficient. 
 
 Clarkson v. Lawson, 6 Bing. 266, 587 ; 3 M. & P. 605 ; 4 M. & 
 
 P. 356. 
 BMe V. Stevens and others, 4 F. & F. 232 ; 11 L. T. 543. 
 It is libellous to impute to a solicitor " disgraceful conduct " in having at 
 an election disclosed confidential communications made to him profes- 
 sionally. 
 
 Moore v. Terrell and others, 4 B. & Ad. 870 ; 1 N. & M. 559. 
 
 Journalists. 
 
 It is libellous to impute to the editor and proprietor of a newspaper that 
 in advocating the sacred cause of the dissemination of Christianity among 
 the Chinese, he was an impostor, anxious only to put money into his own 
 pocket by extending the circulation of his p)aper ; and that he had pub- 
 lished a fictitious subscription list with a view to induce people to 
 contribute. 
 
 Camplell v. Spottisicoode, 3 B. & S. 769 ; 32 L. J. Q. B. 185 ; 
 9 Jur. N. S. 10G9 ; 11 W. R. 569 ; 8 L. T. 201. 
 It is libellous to call the editor of a newspaper " a libellous joiirnalist." 
 
 JVakley v. Cooke S' Healaj, 4 Exch. 511 ; 19 L. J. Ex. 91. 
 It is libellous to write and publish that a newspaper has a separate page 
 devoted to the advertisements of usurers and quack doctors, and that the 
 editor takes respectable advertisements at a cheaper rate if the advertisers 
 will consent to their appearing in that page. 
 
 Eussell and another v. Webster, 23 W. E. 59. 
 It is not libellous for one nev.'spaper to call another " the most viilgar, 
 ignorant and scurrilous journal ever published in Great Britain ;" but it is 
 libellous to add " it is the lowest now in circulation ; and we submit the 
 fact to the consideration of advertisers ; " for that aftects the sale of the 
 paper and the profits to be made by advertising. — (Lord Kenj^on, C.J.) 
 Heriot v. Stuart, 1 Esp. 437. 
 
 Any "\\Titteii words are libellous wliicli impeacli tlie 
 credit of any merchant or trader by imputing to liim 
 bankruptcy, insolvency, or even embarrassment either 
 past, present, or futiu'e, or which impute to him fraud 
 or dishonesty or any mean and dishonom-able trickery 
 in the conduct of his business, or whicli in any other 
 
 I
 
 LIBELS ON TRADERS. 31 
 
 method are prejudicial to him in the way of his employ- 
 ment or trade. 
 
 " The law has always been very .tender of the reputation of 
 tradesmen, and therefore words spoken of them in the way of 
 their trade will bear an action that will no<^ be actionable in the 
 case of another person, and if bare words are so, it will be 
 stronger in the case of a libel in a public newspaper which is so 
 diifusive." Per curiam, in Haronan v. Delany, 2 Str. 898 ; 1 
 Barnard. 289 ; Fitz. 121. 
 
 Competition between rival traders is allowed to any extent, 
 so long as only lawful means are resorted to. Pudsey Coal Gas 
 Co. V. Corporation of Bradford, L. E.. 15 Eq. 167 ; 42 L. J. 
 Ch. 293; 21 W. K. 286 ; 28 L. T. 11. But force and violence 
 must not be used {Young v. Hickens, 6 Q. B. 606), nor threats 
 {Tarleton and others v. McOaivley, Peake, 270), nor imputations 
 of fraud or dishonesty. 
 
 Illustrations. 
 
 The printers of a newspaper, hj a mistake in setting up in type the 
 announcements from the London Gazette, placed the name of the plaintiff's 
 firm under the heading " First Meetings under the Bankruptcy Act " 
 instead of under " Dissolutions 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 suggestion of any malice. In an action for 
 libel against the proprietors of the paper, the jury awarded the plaintiff 
 £50 damages. Held that the publication was libellous, and that the damages 
 awarded were not excessive. 
 
 Shepheard v. Whitaker, L. R. 10 C. P. 502 ; 32 L. T. 402. 
 [X.B. — The chief clerk thought £10 sufficient in a very similar case, 
 Htuhhs V. Marsh, 15 L. T. 312.] 
 
 It is libellous to advertise that a certain optician is "a licensed liawker" 
 and "a quack in spectacle secrets." 
 
 Keijzor and another v. Newcomh, 1 F. & F. 559. 
 It is a libel to write and publish of a licensed victualler that his licence 
 has been refused ; as it suggests that he had committed some breach of the 
 licensing laws. 
 
 Bignell v. Buzzard, 3 H. & N. 217 ; 27 L. J. Ex. 355. 
 It is libellous to write and publish of the defendant that he regularly 
 supplies bad and uin\ liolesome water to ships, wliereby the passengers are 
 made ill. 
 
 Solomon v. Lairson, 8 Q. B. 823 ; 15 L. J. Q. B. 253 ; 10 Jur. 
 796.
 
 32 DEFAMATORY WORDS. 
 
 But for one tradesman merely to puff up his own goods, and decry those 
 of his rival, is no libel ; unless fraud or dishonesty be imputed. 
 
 Evans v. Harlmr, 5 Q. B. 624 ; 13 L. J. Q. B. 120 ; 8 Jur. 571 ; 
 
 D. & M. 507. 
 Heriot V. Stuart, 1 Esp. 437, ante, p. 30. 
 Partners may sue jointly for a libel defamatory of the partnership. 
 Le Fanu v. Malcolmson, 1 H. L. C. 637 ; 8 Ir. L. R. 418. 
 Haythorn v. Lawson, 3 C. & P. 196. 
 
 Ward V. Smith, 6 Bing. 749 ; 4 C. e^ P. 302 ; 4 :M. & P. 595. 
 So a company or corporation can sue even one of their own members 
 for a libel relating to their management of their business. 
 
 Williams v. Beaumont, 10 Bing. 260 ; 3 Moore & Sc. 705. 
 Eastwood V. Holmes, 1 F. & F. 347. 
 
 Metropolitan Omnibus Co. v. Hawkins, 4 H. & N. 87 ; 28 L. J. 
 
 Ex. 201 ; 5 Jur. N. S. 226 ; 7 W. R. 265 ; 32 L. T. (Old S.) 
 
 281. 
 
 A married woman trading under her own name according to the custom 
 
 of London may sue as a trader, without joining her husband, for a libel ou 
 
 her in the way of her trade. 
 
 Per Brett, J., in Summers v. City Baal; L. R. 9 C. P. 583 ; 43 
 L. J. C. P. 261. 
 
 Sometimes also au attack upon a thing may be defama- 
 tory of the o^yner of that thing, or of others immediately 
 connected with it. But this is only so where an attack 
 upon the thing is also an indii-ect attack upon the 
 individual. If the words do not touch the personal 
 character or professional conduct of the individual, they 
 are not defamatory of Iwn, and no action lies (imless the 
 words fall within the rules relating to Slander of Title ; 
 see post, c. V.) But to impute that the goods which 
 the defendant sells or manufactures are adulterated to 
 his knowledge, is a distinct charge against the defendant 
 of fraud and dishonesty in his trade. 
 
 A declaration alleged that the plaintiffs were manufacturers of bags, and had 
 manufactured a bag which they called the "Bag of Bags," and the defendant 
 printed and published, concerning the plaintifts in their business, the words 
 following : — " As we have not seen the Bag of Bags, we cannot say that it 
 is useful, or that it is portable, or that it is elegant. All these it may be, 
 but the only point we can deal with is the title, which we think very silly, 
 very slangy, and very vulgar ; and which has been forced upon the notice
 
 LIBELS ON THINGS. 33 
 
 of the public ad nauseam.'" On demurrer, Lush, J., held that the words 
 could not be deemed libellous, either upon the plaintiffs or upon their mode 
 of conducting their business. But ]\lellor and Haunen, JJ., thought that 
 it was a question for the jury whether the words went beyond the limits 
 of fair criticism, and whether or not they were intended to disparage the 
 plaintiffs in the conduct of their business. 
 
 Jenner and another v. A'Becketf, L. E. 7 Q. B. 11 ; 41 L. J. 
 Q. B. 14 ; 20 W. R. 181 ; 25 L. T. 464. 
 The defendant published an advertisement in these words : — " Whereas 
 there was an account in the Craftsman of John Harman, gunsmith, making 
 guns of two feet six inches to exceed any made by others of a foot longer 
 (with whom it is supposed he is in fee), this is to advise all gentlemen to 
 be cautious, the said gunsmith not daring to engage with any artist in toivn, 
 nor ever did make such an experiment (except out of a leather gun), as any 
 gentleman may be satisfied of at the Cross Guns in Longacre." Held a 
 libel on the plaintiff in the way of his trade. Verdict for the Plaintiff'. 
 Damages £50. 
 
 Harman v. Delany, 2 Stra. 898 ; 1 Barnard. 289, 438 ; Fitz. 121. 
 A declaration alleged that the plaintiff" carried on the trade of an engi- 
 neer, and sold in the way of his trade goods called "self-acting tallow 
 syphons or lubricators," and that the defendant published of the plaintiff in 
 his said trade and as such inventor as follows : — " This is to caution parties 
 employing steam power from a person, offering what he calls self-acting 
 tallow syphons or lubricators, stating that he is the sole inventor, manufac- 
 turer and patentee, thereby monopolizing high prices at the expense of the 
 public. R. Harlow (the defendant) takes this opportunity of saying that 
 such a patent does not exist, and that he has to offer an improved lubricator, 
 which dispenses with the necessity of using more than one to a steam 
 engine, thereby constituting a saving of 50 per cent, over every other kind 
 yet offered to the public. Those who have already adopted the lubricators 
 against which R. H, would caution, will find that the tallow is wasted 
 instead of Ijeing effectually employed as professed." Held no libel on the 
 plaintiff, either generally, or in the way of his trade, but only a libel on the 
 lul>ricators, and therefore not actionable without proof of special damage. 
 
 Evans v. Harlow, 5 Q. B. 624 ; 13 L. J. Q. B. 120 ; 8 Jur. 571 ; 
 
 D. & M. 507. 
 
 So where one tradesman merely asserts that his own goods are superior 
 to those of some other tradesman, no action lies unless the words be pub- 
 lished falsely and maliciously and special damage has ensued. 
 
 Yomig ami 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. 
 Western Counties Manure Co. v. Lawes Chemical Manure Co., L. 
 
 E. 9 Ex. 218 ; 43 L. J. Ex. 171 ; 23 W. R. 5. 
 
 A libel on the management of a newspaper is a libel on its proprietors, 
 jointly, in the way of their trade, and therefore actionable without special 
 damage. 
 
 Russell and another v. IFehster, 23 W. R, 59.
 
 34 DEFAMATORY 'WORDS. 
 
 To write and publish tliat a ship is unseaworthy may he a libel on its 
 captain. " It is like saying of an innkeeper that his wine or his tea is 
 poisoned." 
 
 Ingram v. Lawson, 6 Bing. N. C. 212 ; 8 Sc. 471, 478 ; 4 Jur. 
 151 ; 9 C. & P. 326. 
 To advertise falsely that certain quack medicines were prepared by an 
 eminent physician, is a libel upon such physician. 
 
 C'larh V. Freeman, 11 Beav. 112; 17 L.J. Ch. 142; 12 Jur. 
 149. 
 It is libellous falsely to impute to a bookseller that he publishes 
 immoral or absiu'd poems. 
 
 Tahart v. TipiKr, 1 Camp. 350. 
 It is libellous falsely to write and publish of professional vocalists that 
 they had advertised themselves to sing at certain music-halls songs which 
 they had no right to sing in public. 
 
 Hart and another v. JFall, 2 C. P. D. 146 ; 46 L. J. C. P. 227 ; 
 
 25 W. R 373. 
 
 But comments, however severe, on the advertisements or handbills of a 
 
 tradesman, will not be libellous, if the jury find that they are fair and 
 
 temperate comments not wholly undeserved on a matter to which public 
 
 attention was expressly invited by the plaintiff. 
 
 Paris V. Levy, 9 C. B. N. S. 342 ; 30 L. J. C. P. 11 ; 9 W. R. 
 
 71; 3L. T. 324; 2 F. & F. 71. 
 Morrison and another v. Harraer and another, 3 Bing. N. C. 759 ; 
 4 Scott, 524 ; 3 Hodges, 108. 
 
 Fair and bond Jide Comment. 
 
 Every one has a right to comment ou matters of public 
 interest and general concern, provided he does so faii'ly 
 and with an honest purpose. Such comments are not 
 libellous, however severe in theii- terms, unless they are 
 written inteniperately and malicious^. Every citizen 
 has full freedom of speech on such subjects, but he must 
 not abuse it. 
 
 This branch of the law is of but recent growth. Cockburu, 
 C. J., says in Wason v. Walter, L. R. 4 Q. B. 93, 94 :— 
 
 " Our law of libel has, in many respects, only gradually de- 
 veloped itself into anything like a satisfactory and settled form. 
 The full liberty of public writers to comment on the conduct 
 and motives of public men has only in very recent times been 
 recognised. Comments on government, on ministers and officers
 
 FAIR COMMENT. 35 
 
 of state, on members of both Houses of Parliament, on juilges 
 and other public functionaries, are now made every day, which 
 half a century ago would have been the subject of actions or 
 ex officio informations, and would have brought down fine and 
 imprisonment on publishers and authors. Yet who can doubt 
 that the public are gainers by the change, and that, though in- 
 justice may often be done, and though public men may often 
 have to smart under the keen sense of wrong inflicted by 
 hostile criticism, the nation profits by public opinion being thus 
 freely brought to bear on the discharge of public duties? " 
 
 The right to comment upon the ^^nblic acts of public 
 men is the right of every citizen, and is not the peculiar 
 privilege of the press. [Kane v. Mulvany^ Ir. E. 2 
 C. L. 402.) But ncAVspaper ^vi'iters, though in strict 
 law they stand in no better position than any other 
 person, are generally allowed greater latitude by jmies. 
 For it is in some measure the duty of the press to watch 
 narrowly the conduct of all government officials, and the 
 working of all public institutions, to comment freely on 
 all matters of general concern to tlie nation, and to 
 fearlessly expose abuses. 
 
 It has often been said in nisi "priiis cases, that fair and 
 honest criticism in matters of public concern is '' 'privileged^ 
 But this does not mean that such words are " privileged by 
 reason of the occasion " in the strict legal sense of that term. 
 Tlie defence_ really is^J^liat the words are jipt defamatory ; that 
 criticism is no libel. This is very clearly pointed out by Black- 
 burn, J., in G(imi)hdl v. Spottisvjoode, 3 B. & S. 7G9 ; 82 L. J. 
 Q. B. 185 ; 9 Jur. N. S. 1009 ; 11 W. R. 5G0 ; S L. T. 201. 
 
 If such criticism was privileged in the strict sense of the 
 word, it would in every case be necessary for the plaintiff to 
 prove actual malice, however false and however injurious the 
 istrictures may have been ; while the defendant would only have 
 'to prove that ho honestly believed the charges himself in order to 
 escape all liability ; and this clearly is not the law. Comment 
 and criticism on matters of public interest stand on a different
 
 36 DEFAMATORY WORDS. 
 
 footing from reports of judicial or Parliamentary proceedings. 
 Such reports are privileged, so long as they are fair and ac- 
 curate reports and nothing more. But so soon as there is any 
 attempt at comment, the privilege is lost. In short, report and 
 comment are two distinct and separate things. Fair reports 
 are privileged, while fair comments on matters of public interest 
 are no libels at all. 
 
 Illustrations. 
 
 Condemnation of the foreign policy of the Government, however sweejjing, 
 is no libel. 
 
 Animadversions, however severe, on the use made by the vestry of the 
 money of the ratepayers, is not libellous, unless corruption or embezzle- 
 ment be imputed to individual vestrymen. 
 
 Criticism, however trenchant, on any new poem or novel, or on any 
 picture exhibited in a public gallery, is no libel. 
 
 But to maliciously pry into the private life of any poet, novelist, artist, 
 or statesman, is indefensible. 
 
 Criticism. 
 
 Every one of the public is entitled to j)ass an opinion 
 on everything which in any way invites public attention. 
 Those of the piublic whose opinion on such matters is best 
 worth having are called critics. From their education^ 
 ability, or experience, they can judge with precision 
 (which is the true meaning of the word to criticize), and 
 their opinion, therefore, is entitled to respect. Their 
 criticism may be commendatory, but it is, perhaps, more 
 generally unfavourable. Still, so long as it continues to 
 be criticism at all, it is not defamatory. Where defama- 
 tion commences, true criticism ends. 
 
 True criticism differs from defamation in the following 
 particulars : — 
 
 1. Criticism deals only with such things as invite 
 public attention, or call for public comment. 
 
 2. Criticism never attacks the individual, but only his 
 work. Such work may be either the policy of a govern- 
 ment, the action of a member of Parliament, a public
 
 CRITICISM. 37 
 
 entertainment, a book published, or a picture exhibited. 
 In every case the attack is on a man's acts^ or on some 
 tiling.^ and not upon the man himself. A true critic 
 never indulges in personalities. 
 
 3. True criticism never imputes or insinuates dis- 
 honourable motives (unless justice absolutely requii'es it, 
 and then only on the clearest proofs). 
 
 4. The critic never takes advantage of the occasion to 
 gratify private malice, or to attain any other object 
 beyond the fail* discussion of matters of public interest, 
 and the judicious guidance of the public taste. 
 
 Every one has a right to publish such fair and candid 
 criticism, even " although the author may suffer loss from 
 it. Such a loss the law does not consider as an injury, 
 because it is a loss which the party ought to sustain. 
 It is, in short, the loss of fame and profits to which he 
 was never entitled." * * * '' Eeflection upon 
 personal character is another thing. Sbow me an 
 attack upon the moral character of the plaintiff, 
 or any attack upon his character unconnected with 
 his authorship, and I should bo as ready as any 
 judge who ever sat here to protect him. But I cannot 
 hear of malice on account of turning his works into 
 ridicule." {Per Lord Ellenborough in the celebrated 
 case of Sir John Carr v. Hood., 1 Camp. 355, n.) So in 
 Tahart v. Tipper, 1 Camp. 351, the same learned Judge 
 says : " Liberty of criticism must be allowed, or we 
 should neither have j^urity of taste nor of morals. Fair 
 discussion is essentially necessary to the truth of history 
 and the advancement of science. That publication, 
 therefore, I shall never consider as a libel, which has for 
 its object, not to injure the reputation of any individual, 
 but to correct misrej)resentations of fact, to refute sophis- 
 tical reasoning, to expose a vicious taste in literatm-e, or 
 to censure what is hostile to morality." " God forbid,"
 
 38 DEFAMATORY WORDS. 
 
 exclaims Aklcrsou, B. in Gather cole y. 3IiaU, 15 M. & 
 W. 340, " God forbid tliat you should not be allowed to 
 comment on the acts of all mankind, provided yon do it 
 jnstlj^ and truly." " A critic must confine himself to 
 criticism, ancTnbt make it the veil for personal censure, 
 nor alloAY himself to run into reckless and unfaii" attacks 
 merely from the love of exercising his power of denuncia- 
 tion." (P^T Huddleston, B., in W/u'stlerY. Bus/cin ; Times 
 for XoY. 27th, 1878.) 
 
 But all comments must be fair and honest. Matters 
 of public interest must be discussed"iemperately. Wicked 
 and corrupt motives should never be wantonly assigned. 
 And it will be no defence that the writer, at the time he 
 wrote, honestly believed in the truth of the charges he 
 was making, if such charges be made recklessly, un- 
 reasonably, and without any foundation in fact. ( Camp- 
 bell V. Spottistvoode, 3 F. & F. 421 ; 3 B. & S. 769 ; 
 32 L. J. Q. B. 185 ; 11 ^Y. R. 569 ; 9 Jur. X. S. 1069 ; 
 8 L. T. 201.) Some people are very credulous, especially 
 in politics ; and can readily believe any evil of their 
 opponents. There must therefore be some foundation in 
 fact for the charges made ; the ^^Titer must bring to his 
 task some degree of moderation and judgment. 
 
 Slight unintentional errors, on the other hand, ^\'ill be 
 excused. If a writer in the course of temperate and 
 legitimate criticism falls into error as to some detail, or 
 di'aws an incorrect reference from the facts before him, 
 and thus goes beyond the limits of strict truth, such 
 inacciu*acies will not cause judgment to go against 
 him, if the jury are satisfied, after reading the whole 
 publication, that it was written honestly, fairly, and 
 with regard to what truth and justice require. " It 
 is not to be expected that a public joiu'ualist will 
 alwavs be infallible." (Per Cockburn, C. J., 2 F. & 
 F. 210.)
 
 BONA FIDE COMMENTS. 39 
 
 But the critic must confine himself to the merits of 
 the work before him. He must not follow the plaintiff 
 into his domestic life, or attack his private character. 
 He must carefully examine the production before him, 
 and then honestly state his true opinion of it. 
 
 So long as a writer confines himself to comments on 
 the public conduct of public men, the mere fact that 
 motives have been unjustly assigned for such conduct is 
 not of itself safhcient to destroy this defence, though of 
 course it will tell strongly in favour of the plaintiff. 
 " A line must be drawn," says Cockbm-n, C.J., in CamjJ- 
 hellY. Spottistvoode, 3 B. & S. 776, 7 ; 32 L. J. Q. B. 199 ; 
 8 L. T. 201, "between criticism upon public conduct 
 and the imputation of motives by which that conduct 
 may be supposed to be actuated ; one man has no right 
 to impute to another, whose conduct may be faii-ly open 
 to ridicule or disapprobation, base, sordid, and wicked j 
 motives, unless there is so much ground for the imputa- ' 
 tion that a jury shall find, not only that he had an 
 honest belief in the truth of his statements, but that his 
 belief was not without foundation . . . ." "I think 
 the fair position in which the law may be settled is this : 
 That where the public conduct of a public man is open 
 to animadversion, and the writer who is commenting 
 upon it makes imputations on his motives, which arise 
 fairly and legitimately out of his conduct, so that a jury 
 shall say that the criticism was not only honest but also 
 well founded, an action is not maintainable. But it is 
 not because a public writer fancies that the conduct of a 
 public man is open to the suspicion of dishonesty, he is 
 therefore justified in assailing his character as dishonest." 
 
 Illustrations. 
 
 An article in the Saturday Bevieio imputed to tlie plaintiff, the editor and 
 part proprietor of the British Ensign, that in advocating the propagation of
 
 40 DEFAMATORY WORDS. 
 
 Cliri.stianity among the Chinese liis piupose was merely to increase the 
 circuhition of his own paper, and so put money into his own pocket ; that 
 he was an imj^ostor, and that he put forth a list of fictitious subscribers in 
 order to delude others into subscribing. The jury found that the ^vl■iter 
 honestly believed the imputations contained in the article to be well- 
 founded, but the Court held that the limits of fair criticism had been 
 undoubtedly exceeded. 
 
 Camphell v. Spottisu-oode, 3 F. & F. 421 ; 32 L. J. Q. B. 185 ; 
 3 B. & S. 769 ; 9 Jur. N. S. 1069 ; 11 W. R. 569 ; 8 L. T. 
 201. 
 Two sureties were proposed for the Ber\\-iLk election petition : neither of 
 whom had any connection with the borough. Affidavits were put in to 
 show that one of them was an insufficient surety, being embarrassed in his 
 affixirs. Tlie Times set out tliese affida\-its and added the remarks, " But 
 why, it may be asked, does this cockney tailor take all tMs trouble, and 
 subject himself to all this exposure of his difficulties and embarrassments ? 
 He has nothing to do wdth the borough of Berwick-iTpon-Tweed or its 
 members. How comes it then that he should take so much interest in the 
 job? There can be but one answer to these very natural and reasonable 
 (jueries : he is hired for the occasion. The affair in fact is a foul job through- 
 out, and it is only hy such aid that it can possibly be supported." In an 
 action Ijrought on tlie whole article, the defendant pleaded that the publi- 
 cation was a correct report of certain legal proceedings, " together with a 
 fair and bond fide commentary thereon." But the jiuy thoxight the comment 
 was not fair and gave the plaintiff damages ,£100. 
 
 Cooper V. Lauson, 8 A. & E. 746 ; 1 P. & D. 15 ; 1 W. W. & H. 
 601 ; 2 Jur. 919. 
 The jilaintiff was ex-mayor of Winchester. The Hampshire Advertiser 
 imputed to him partiality and corruption and ignorance of his duties as 
 mayor and justice of the j)eace for the borough. Held that though some 
 words which are clearly libellous of a private person may not amount to a 
 libel when spoken of a jierson holding a pulilic capacity, still any imputa- 
 tion of unjust or corrupt motives is equally libellous in either case. 
 
 Parmiter v. Coupland, 6 M. & \y. 105 ; 9 L. J. Ex. 202 ; 4 Jur. 
 
 701. 
 
 But when an attack is made on the policy of Her IVIajesty's Government 
 
 or on the public conduct of any high officer of State, it ajipears now that 
 
 wicked or at least selfish, motives may l)e im25uted, so long as they are 
 
 not recklessly and maliciously imputed. 
 
 Per Martin, B., in Hark v. Catherall, 14 L. T. 801. 
 Per Cockbiu-n, C.J., in Wason v. JFalter, L. R. 4 Q. B. 93 ; 38 
 L. J. Q. B. 34 ; 17 W. R. 169 ; 19 L. T. 416 ; 8 B. & S. 
 730. 
 And in Cauiphell v. Spjottisicoode, ante, p. 39. 
 The defendants, tlie jmnters and publishers of tlie Mancliester Courier, 
 published in their pa]ier a report of the proceedings at a meeting of the 
 board of guardians for the Altrincham Poor-Law Union, at which charges 
 were made against the medical officer of the union workhouse at Knutsford,
 
 MATTERS OF PUBLIC INTEREST. 41 
 
 of neglecting to attend the pauper patients when sent for. Such charges 
 proved to be utterly unfounded ; they were made in the absence of the 
 medical officer, without any notice having been given him. Kdd that the 
 matter was one of public interest ; but that the report was not privileged 
 by the occasion, although it was admitted to be a correct account of what 
 passed at the meeting ; that it was obviously unfair to the plaintiff that 
 such ex iparte statements should be published in the local papers ; that the 
 editor should therefore have exercised his discretion and excluded the 
 report altogether ; and the plaintiff recovered 40s. damages and costs. 
 
 . ^Furcell v. Sowler (C.A,), 2 C. P. D. 215 ; 46 L. J. C. P. 308 ; 
 25 W. E. 362 ; 36 L. T. 416. 
 
 What are matters of public interest ? 
 
 The public conduct of every public man is a matter of 
 public concern : — 
 
 "A clergyman with his flockj^ an admiral with his 
 fleet, a^ ' geneiNal with ms arni}^, and a judge with his 
 jury, are all subjects of public discussion. Whoever 
 fills a public position renders himself open thereto. He 
 must accei)t an attack as a necessary, though impleasant, 
 appendage to his office." {Per Bramwell, B., in Kelly v. 
 SherlocJc, L. E. 1 Q. B. 689 ; 35 L. J. Q. B. 209 ; 12 Jur. 
 K S. 937.) 
 
 All political, legal, and ecclesiastical matters therefore 
 are matters of public concern. So is the conduct of 
 every vestry, town coimcil, board of guardians, &c. 
 For, although these may be matters of local interest 
 principally, still this rule applies, so long as they are not 
 private matters. Anything that is a pubKc concern to 
 the inhabitants of Birmingham or Manchester is a matter 
 of public interest within the meaning of the rule. See 
 the remarks of Cockbui*n, C.J., in Cox v. FeeneyyiY. & F. 
 13. And again in Purcell v. Sowler, 2 C. P. D. 218, 
 the same learned judge says : "But it seems to me that 
 whatever is matter of public concern when administered 
 in one of the government departments, is matter of 
 public concern when administered by the subordinate 
 authorities of a particular district. It is one of the
 
 42 DEFAMATORY WORDS. 
 
 characteristic featm-es of the government of this conntry 
 that, instead of being centralized, many important 
 branches of it are committed . to the conduct of local 
 authorities. Thus the business of counties, and that of 
 cities and boroughs, is, to a great extent, conducted by 
 local and municij)al goYcrnment. It is not, therefore, 
 because the matter under consideration is one which in 
 its immediate consequences affects only a pai-ticular 
 neighbourhood that it is not a matter of public concern. 
 The management of the poor and the administration of 
 the poor-law in each local district are matters of public 
 interest. In this management the medical attendance 
 on the poor is matter of infinite moment, and conse- 
 quently the conduct of a medical officer of the district 
 may be of the greatest importance in that particular 
 district, and so may concern the iDublic in general." 
 
 Matters of public interest may be conveniently 
 grouped under the following heads : — 
 
 1. Affairs of state; 
 
 2. The administration of justice; 
 
 3. Public institutions and local authorities ; 
 
 4. Ecclesiastical matters ; 
 
 5. Books, pictui'es, and architecture ; 
 
 G. Theatres, concerts, and other public entertainments; 
 7. Other appeals to the public. 
 
 I. Affairs of State. 
 
 The conduct of all public servants, the policy of the 
 Government, our relations with foreign countries, all 
 suggestions of reforms in the existing laws, all bills 
 before Parliament, the adjustment and collection of 
 taxes, and all other matters which touch the public 
 welfare, are clearly matters of public interest, which 
 come within the preceding rule. "Every subject has a
 
 COMMENTS ON STATE AFFAIRS. 43 
 
 right to comment on those acts of public men Avhich 
 concern him as a subject of the reahn, if he do not make 
 his commentary a cloak for malice and slander." {Fev 
 Parke, B., in Parmiter v. Coupland^ 6 M. & W. 108.) 
 Those who fill "a public position must not be too thin- 
 skinned in reference to comments made upon them. It 
 would often happen that observations would be made 
 upon public men which they knew from the bottom of 
 their hearts were undeserved and unjust ; yet they must 
 bear with them, and submit to be misunderstood for a 
 time, because all knew that the criticism of the press was 
 the best secmity for the proper discharge of public 
 duties." {Fer Cockburn, C.J., in Seymour v. Biitter- 
 ivortJi^ 3 F. & F. 376, 7 ; and see the dicta of the judges 
 in R. V. Sir R. Garden, 5 Q. B. D. 1 ; 49 L. J.^M. C.) 1 ; 
 28 W. E. 133; 41 L. T. 504.) 
 
 Ilhisivcdions. 
 
 The presentation of a petition to Parliament impugning the character of 
 one of Her Majesty's judges, and praying for art inquiiy, and for his re- 
 moval from office should the charge prove true, is a matter of high public 
 concern, on which all newspapers may comment, and in severe terms. So 
 is the debate in the House on tlie subject of such petition. 
 
 Wason V. Walter, L. E. 4 Q. B. 73 ; 38 L. J. Q. B. 34 ; 17 
 
 W. R. 169 ; 19 L. T. 409 ; 8 B. & S. 730. 
 
 A writer in a neA\spaper may comment on the fact that corrupt practices 
 
 extensively prevailed at a parliamentary election ; but may not give the 
 
 names of individuals as guilty of bribery, unless he can prove the truth of 
 
 the charge to the letter. 
 
 Wilson V. Eml and others, 2 F. & F. 149. 
 The presentation of a petition to Parliament against quack doctors is 
 matter for public comment. 
 
 Dunne v. Anderson, 3 Bing. 88 ; Ry. & Moo. 287 ; 10 Moore, 
 407. 
 Evidence given before a Pioyal Commission is matter 2^uhlici juris, and 
 everyone lias a perfect right to criticise it. 
 
 Per Wickens, V.C, in Mulkern v. Ward, L. R. 13 Ecp 622 ; 
 41 L. J. Ch. 464 ; 26 L. T. 831. 
 So is evidence taken before a Purliamentarv Committee on a local gas 
 bill. 
 
 Hedlcy v. Barlow, 4 F. & F. 224. 
 A report of the Board of Admiralty upon the plans of a naval architect,
 
 44 DEFAMATORY WORDS. 
 
 submitted to the Lords of the Admiralty for their consideration, is a matter 
 of national interest. 
 
 Henv-ood v. Harrisov, L. R. 7 C. P. 606; 41 L. J. C. P. 206 ; 
 20 W. R. 1000 ; 26 L. T. 938. 
 The aj^pointment of a Roman Catholic to be Calendarer of State Papers 
 is a matter of public concern. 
 
 Turnbull v. Bird, 2 F. & F. 508. 
 The plaintiff, who was a Q.C. and a Member of Parliament, was appointed 
 recorder of Newcastle. The defendant's paper, the Lcnv Marjazine and 
 Beview, thereupon discussed the desiraliility of giving such an appointment 
 to a member of the House of Commons, and declared that it was a reward 
 for his having steadily voted with his party. Cockburn, C. J., directed the 
 jury that a public wTiter was fairly entitled to comment on the distribution 
 of Government patronage ; but that he was not entitled to assert that there 
 had been a corrupt promise or understanding that the plaintiff would be thus 
 rewarded, if he always voted according to order. Verdict for the plaintiff' ; 
 damages 40s. 
 
 Seymour v. Bnftenrorth, 3 F. & F. 372. 
 
 2. Administration of Justice. 
 
 Tlic administration of the law, tlie verdicts of juries, 
 the conduct of suitors and theii' witnesses, are all 
 matters of lawful comment as soon as the trial is over. 
 Any comment pending action is a contempt of coui-t, by 
 whomsoever made ; it is especially so where the com- 
 ment is supplied by one of the litigants or his solicitor 
 or counsel. {Daw v. Elqj, L. E. 7 Eq. 49 ; 38 L. 
 J. Ch. 113; IT W. E. 245.) 
 
 In former days, where a trial lasted more than one 
 day, newspapers were sometimes forbidden to publish any 
 report of the trial from day to day ; they were ordered 
 to reserve theii* whole report till the case was ended. 
 But it is now clear that daily reports of the progress of 
 the trial are unobjectionable, if fail- and impartial. [Lewis 
 V. Levy, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. 
 I^. S. 970.) But report is very different fi'om comment. 
 No observations on the case are permitted during its 
 progress, lest the minds of the jiu-y (and indeed of the 
 judge) should be thereby biassed. 
 
 \
 
 ADMINISTRATION OF JUSTICE. 45 
 
 But as soon as the case is over, every one has '' a right 
 to discuss fairly and hand fide the administration of 
 justice as evidenced at this trial. It is o^Den to him to 
 show that error was committed on the part of the judge 
 or jury; nay, further, for myself I will say that the 
 judges invite discussion of their acts in the adminis- 
 tration of the law, and it is a relief to them to see 
 error pointed out, if it is committed ; yet, whilst they 
 invite the freest discussion, it is not open to a journalist 
 to impute corruption." {Per Fitzgerald, J., in R. v. 
 Sullivan^ 11 Cox C. C. 57.) "That the administration 
 of justice should be made a subject for the exercise of 
 public discussion is a matter of the most essential im- 
 portance. But, on the other hand, it behoves those 
 who pass judgment, and call upon the public to pass 
 judgment, on those who are suitors to, or witnesses in, 
 courts of justice, not to give reckless vent to harsh and 
 uncharitable views of the conduct of others; but to 
 remember that they are bound to exercise a fair and 
 honest and an impartial judgment upon those whom 
 they hold up to public obloquy." (Cockburn, C.J., in 
 Woodgate v. Piidout, 4 F. & F. 223.) 
 
 Illustrations. 
 
 It is not a fair comment on a criminal trial, to suggest tlmt tlie prisoner 
 though acquitted, was really guilty. 
 
 Lewis V. Walter, 4 B. & Aid. 605. 
 
 Eish Allah Beij v. JFJiitehurst and others, 18 L. T. 615. 
 A newspaper may comment upon the hearing of a cliarge of felony and 
 the evidence produced thereat, and discuss the conduct of tlie magistrates 
 in dismissing tlie charge without hearing the whole of the evidence ; but it 
 may not proceed to disclose " evidence which might have been adduced" 
 and thus argue from facts not in evidence before tlie magistrates that the 
 accused was really guilty of the felony. Verdict for the plaintiif. Damaces 
 £25. ° ' 
 
 Hibhins V. Lee, 4 F. & F. 243 ; 11 L. T. 541. 
 
 And see Hclsham v. Blackwood, 11 C. B. Ill ; 2(» L. .J. C P 187 • 
 15 .Jur. 861. 
 
 It. v. JVhite and another, 1 Camp. 359.
 
 46 DEFAMATORY WORDS. 
 
 It is not a fair comment on any legal proceedings to insinuate that a 
 particular witness committed perjury in the course of them. 
 
 B,6h(iTU V, Brown, 10 Bing. 519 ; 4 Moo. & S. 407. 
 
 Btihs V. Nokis, S. C. Carr v. Jones, 7 East, 493 ; 3 Smith, 491. 
 
 Littler v. Tliomijson, 2 Bear. 129. 
 
 Felkin v. Herbert, 33 L. J. Ch. 294 ; 10 Jur. N. S. G2 ; 12 W. E. 
 
 241, 332 ; 9 L. T. 635. 
 
 A newspaper may comment on the evidence given by any particular 
 
 witness in any inquiry on a matter of public interest ; but may not go the 
 
 length of declaring such evidence to be " maliciously or recklessly false." 
 
 Verdict for the plaintiff. Damages £250. 
 
 Heclleu v. Barloir, 4 F. & F. 224. 
 The Morning Post published an article on a trial which had greatly 
 excited public attention ; giving a highly coloured account of the conduct 
 of the attorneys on one side, concluding witli the sweeping condemnation : 
 — " Messrs. Quirk, Gammon, and Snap were fairly equalled, if not outdone," 
 alluding to the notorious firm of pettifoggers in '• Ten Thousand a Year." 
 This account of plaintiff's conduct was taken almost vei'batim from the 
 speech of counsel on the other side, and no allusion was made to the 
 evidence subsequently produced to rebut his statements. Verdict for the 
 plaintiff. Damages £1000. 
 
 JVoodgate v. Eidont, 4 F. & F. 202. 
 
 3. Public InslUutions and Local AutJiorities. 
 
 The working of all public institutions, such as colleges, 
 hospitals, asylums, homes, is a matter of public interest, 
 especially where such institutions appeal to the public 
 for subscriptions, or arc supported by the rates, or are, 
 like our five Universities, national property. The 
 management of local affairs by the various local autho- 
 rities, c.g.^ town-councils, schoolboards, vestries, boards 
 of guardians, boards of health, &c., is a matter of public, 
 though it may not be of universal, concern. 
 
 Illustrations. 
 
 " The management of the poor and the administration of the poor-law 
 
 in each local district are matters of pirblic interest." Per Cockburn, C. J., in 
 
 Purcell V. Solder, 2 C. P. D. 218 ; 46 L. J. C. P. 308 ; 25 W. 
 
 E. 362 ; 36 L. T. 416. 
 
 The official conduct of a way-warden may l)e freely criticized in the 
 
 local press. 
 
 Hurh V. Cathcrall, 14 L. T. 801.
 
 MATTERS OF PUBLIC INTEREST. 
 
 47 
 
 The Charity Coininissioners sent an inspector to inquire into the workin" 
 of ci medical college at Birmingham. He made a report containing passages 
 defamatory of the plaintiff, one of the professors. The mismanagement of 
 the college continued, and increased. The warden at last filed a bill to 
 administer the funds in Chancery. Thereupon the defendant, the pro- 
 prietor of a local paper, procured an official copy of the report of the 
 inspector, and published it vei-batim in his paper. This was nearly three 
 years after the report had been written. The plaintiff contended that this 
 Avas a wanton reAdval of stale matter which could not be rec^uired for 
 public information ; but Cocklnirn, C. J., left it to the jury to say whether 
 public interest in the matter had not rather increased than declined in the 
 interval. Verdict for the defendant. 
 
 Cox V. Feeney, 4 F. & F. 13. 
 
 4. Ecclesiastical Affairs. 
 
 A bishop's government of liis diocese, a rector's 
 management of his parish, or of the parochial school, are 
 matters of pnblic interest. So is the manner in which 
 "public worship" is celebrated in the Established 
 Cliiu-ch. But an unobtrusive charitable organization 
 privately established by the rector in the parish is not a 
 fit subject for public comment. 
 
 Illudratlons. 
 
 The press may comment on the fact that the incumbent of a parish has, 
 contrary to the wishes of the churchwarden, allowed books to be sold in the 
 church during service, ami cooked a chop in the vestry after the service 
 was over. 
 
 Kdl>j V. Tinliiuj, 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. 
 But where a vicar started a clothing society in his parisli, expressly ex- 
 fluiling all Dissenters from its benefits, it was held that this was essentially 
 a private society, the members of which might manage it as they jjleased 
 without being called to account by anyone outside : and that therefore a 
 Dissenting organ was not justified in commenting on the limits wliich the 
 vicar had imposed on the desire of his parishioners to clothe tlie poor. 
 
 Gathercole v. Miall, 15 M. & W. 319 ; 15 L. J. Ex. 179 • 10 Jur 
 
 337. 
 And see Walker v. Brogdm, 19 C. B. N. S. G5 ; 11 Jur. N S 
 
 671 ; 13 W. E. 809 ; 12 L. T. 495. 
 Booth v. lUiscoe, (C. A.) 2 Q. B. D. 496 ; 25 W. R. 838. 
 The court in Gafhercole v. Miall, ^ww efaially divided on tlie question 
 whether sermons preached in open church, but not printed and published
 
 48 DEFAMATORY WORDS. 
 
 Avere matter for liuLlic comment. If the sermon itself dealt with matters 
 of pviLlic interest, I apprehend it miglit be. 
 
 5. Books ^ pictures^ ^c. 
 
 " A man wlio publishes a book challenges criticism." 
 {Per Cockbnrn, C.J., in Strauss y. Francis, 4 F. & F. 
 1114; 15 L. T. 675.) Therefore all fair and honest 
 criticism on any published book is not libellous, unless 
 the critic goes out of his way to attack the jn'ivate 
 character of the author. So too it is not libellous faiily 
 and honestly to criticise a painting 2niblicly exhibited, or 
 the architectiu'c of any public building, however strong 
 the terms of censure used may be. 
 
 Illustrations. 
 
 The Athemeum published a criticjiie on a novel written by the plaintiff, 
 describing it as " the very worst attempt at a novel that has ever been 
 perpetrated," and commenting severely on " its insanity, self-complacency, 
 and vulgarity, its profanity, its indelicacy (to use no stronger word), its 
 disjalay of bad Latin, bad French, bad German, and bad English," and its 
 abuse of persons living and dead. After Ei'le, C. J., had summed up the 
 case, the plaintiti" withdrew a juror. 
 
 Strauss v. Francis (No. 1), 4 F. & F. 939. 
 See Sir John Carr v. Hood, I Camp. 355, n. 
 The Athenceum thereupon published another article stating theii- reason 
 for consenting to tbe withdrawal of a juror, which was in fact that they 
 considered the plaintiff would have been unable to have paid them theii' 
 costs, had they gained a verdict. The plaintiff thereupon brought another 
 action which was tried before Cockbnrn, C. J., and the jury ftmnd a verdict 
 for the defendants. 
 
 Strauss v. Francis (No. 2), 4 F. & F. 1107 ; 15 L. T. 674. 
 It is doubtful how far a book printed for private circulation only, may 
 be criticized. Per Pollock, C.B., in 
 
 Gathercole v. Miatl, 15 M. & W. 334 ; 15 L. J. Ex. 179 ; 10 Jur. 
 337. 
 A comic picture of the author of a book, as author, bowing beneath the 
 weight of his volume, is no libel ; though a personal caricature of him as 
 he appeared in private life would be. 
 
 Sir John Carr v. Hood, 1 Camp. 355, n. 
 The articles which appear in a newspaper and its general tone and style 
 may be the subject of adverse criticism, as well as any other literary
 
 CRITICISM ON BOOKS AND PICTURES. 49 
 
 production ; but no attack sliould Ijc laaile on the private character of any 
 writer on its staff. 
 
 Kiriot V. Shiart, 1 Esp. 437. 
 Stuart V. Lovell, 2 Stark. 93. 
 
 Campbell v. Spottiswoode, 3 F. & F. 421 ; 32 L. J. Q. B. 185 ; 3 
 B. & S. 769 ; 9 Jur. N. S. 1069 ; 11 W. R. 569 ; 8 L. T. 
 201. 
 The greatest art critic of the day wrote and published in Fors Clavigera 
 an article on the pictures in the Grosvenor Gallery, in which the following 
 passage occurred : " Lastly, the mannerisms and errors of these pictures 
 (alluding to the pictures of Mr. Burne Jones), wliatever may be their 
 extent, are never affected or indolent. The work is natural to the painter, 
 however strange to us, and is wrought with the utmost conscience of care, 
 however far to his own or our desire the result may yet be incomplete. 
 Scarcely as much can be said for any other pictures of the modern school ; 
 their eccentricities are almost always in some degree forced, and their 
 imperfections gratuitous!}", if not impertinently, indulged. For Mr. 
 Whistler's own sake, no less than for the protection of the purchaser, Sir 
 Coutts Lindsay ought not to have admitted works into the gallery in which 
 the Ul-educated conceit of the artist so nearly approached the aspect of 
 wilful imposture. I have seen and heard much of cockney impudence 
 before now, but never expected to hear a coxcomb ask 200 guineas for 
 flinging a pot of paint in the public's face." The jury considered the words 
 " wilful imposture " as just overstepping the line of fair criticism, and 
 found a verdict for the plaintiff ; damages one farthing. Each party had to 
 pay his own costs. 
 
 Whistler v. RusUn. Times for Nov. 26th and 27th, 1878. 
 Thompson v. Shackell, Moo. & Mai. 187. 
 The plaintiff was a professor of architecture in the Royal Academy. 
 The defendant puliished an account of a new order of architecture called 
 " the Boeotian," said to be invented by the plaintiff, whom he termed " tlie 
 Boeotian professor." He set forth several al)surd principles as the rules of 
 this new order, illustrating them by examples of buildings all of wliich 
 were the works of the plaintiff. The jury, under the direction of Lord 
 Tenterden, C. J., found a verdict for the defendant. 
 Soane v. Knight, Moo. & Mai. 74. 
 
 G. Theatres, Concerts, and Public Entertainments. 
 
 All theatrical and musical performances, flower-shows, 
 public balls, &c., may be freely criticized, provided that 
 the comments be not malevolent or flagrantly unjust. 
 
 Illustrations. 
 
 A gentleman wholly unconnected with tlie stage got up what he called 
 " a Dramatic Ball." The company was disorderly and far from select. No
 
 so DEFAMATORY WORDS. 
 
 actor or actress of any reputation was present at the ball, or took any 
 share in the arrangements. The Era, the special organ of the theatrical 
 profession, published an indignant article, commenting severely on the 
 conduct of the prosecutor in starting such a ball for his own profit, and 
 particularly in calling such an assembly " a Dramatic Ball." Criminal 
 proceedings were taken against the editor of the Era, but the jury found 
 him Not guilty. 
 
 E. V. Ledger, Times for Jan. 14th, 1880. 
 
 And see Dibclin v. Sxoan and Bostock, 1 Esp. 28. 
 A newspaper commenting on a flower-show, denounced one exhibitor by 
 name as " a beggarly soul," "famous in all sorts of dirty work," and spoke 
 of " the tricks by which he and a few like him used to secure prizes " as 
 being now " broken in upon by some judges more honest than usual." 
 Such remarks are clearly not fau- criticism on the flower-show. 
 
 Green v. Chapvian, 4 Bing. N. C. 92; 5 Scott, 340. 
 The plaintiff, the proj)rietor of Zadkiel's Almanac, had a ball of crj-stal 
 by means of which he pretended to tell what was going on in the other 
 world. The Daily Telegraph published a letter which stated that the 
 plaintift' had " gulled " many of the nobility with this crystal ball, that he 
 took money for " these profane acts, and made a good thing of it." Cock- 
 burn, C. J., directed the jury that a newspaper might expose what it 
 deemed an imposition on the public ; but that this letter amounted to a 
 charge that the plaintift' had made money by ^\^lful and fraudulent ndsre- 
 presentations, a charge ^which should not be made "without fair grounds. 
 Verdict for the plaintiff. Damages one farthing. 
 
 Morrison v. Belcher, 3 F. & F. 614. 
 
 7. Other Appeals to the Public . 
 
 Whenever a medical man brings forward some new 
 method of treatment, and advertises it largely as the best 
 or only cui'e for some particnlar disease, or for all diseases 
 at once, he may be said to invite pnblic attention. So 
 when a tradesman distributes handbills or cii'culars, he 
 challenges public criticism. A newspaper wiiter is 
 justified in warning the public against such advertisers, 
 and in exposing the absurdity of their professions, 
 provided he does so faiiiy and with reasonable modera- 
 tion and judgment. 
 
 Again, where a man appeals to the public by writing 
 letters to the newspaper, either to expose what he 
 deems abuses, or to call attention to his own particular 
 grievances, he cannot complain if the editor inserts other 
 
 I 
 
 1
 
 APPEALS TO THE PUBLIC. 51 
 
 letters in answer to his own, refuting his charges, and 
 denying his facts. A man who has commenced a news- 
 paper warfare, cannot comphiin if he gets the worst of it. 
 But if such answer goes further, and touches on fresh 
 matter in no way connected with the plaintiff's original 
 letter, or unnecessarily assails the plaintiff's private 
 character, then it ceases to be an anszver ; it becomes a 
 counter-charge, and if defamatory will be deemed a libel. 
 So too, Avhen a man comes prominently forward in any 
 way, and acquii-es for a time a ^M«5/-public position, he 
 cannot escape the necessary consequence, the fi'ec ex- 
 pression of public opinion. Whoever seeks notoriety, or 
 invites public attention, is said to challenge public 
 criticism ; and he cannot resort to the law courts, if that 
 criticism be less favoui'able than he anticipated. 
 
 Illustrations. 
 
 A medical man who liad obtained a diploma and the degree of M.D. 
 from America advertised most extensively a new and infallil^le cure for 
 consumption. The Pall Mall Gazette published a leading article on the 
 subject of such advertisements, in which they called the advertiser a quack 
 and an impostor, and compared him to " scoundrels who pass bad coin." 
 The jury gave the plaintiff one farthing damages. 
 
 Hunter v. Bliarpe, 4 F. & F. 983 ; 15 L. T. 421. 
 And see Morrison and another v. Harmer and another, 3 Bing. 
 N. C. 759 ; 4 Scott, 524 ; 3 Hodges, 108. 
 A marine store dealer extensively circulated a liandbill setting forth the 
 high prices he was prepared to give for kitchen stuff, rags, bones, oilcloth, 
 1 >rass, copper, lead, plated metals, horsehair, and old clothes. An alderman 
 sitting as magistrate at Guildhall denounced this handbill as offering great 
 inducements to servants to rob their masters. The alderman's remarks, 
 together with the handbill itseK verbatim, were published in the Daily 
 Tdecjrafh, with a heading " Encouraging Servants to Rob their Masters ; " 
 and also a leading article in the same strain. The jury under the direction 
 of Erie, C. J., found a verdict for the defendant. 
 
 Paris V. Levy, 9 C. B. N. S. 342; 30 L. J. C. P. 11 ; 3 L. T. 
 324 ; 9 W. R. 71 ; 7 Jur. N. S. 289; and (at Nisi Prius) 2 
 F. & F. 71. 
 And see Eastwood v. Holmes, 1 F. & F. 347. 
 Jenner and another v. A^ Beckett, L. R. 7 Q. B. 11 ; 41 L. J. Q. B. 
 14; 20 W. R. 181 ; 25 L. T. 464. 
 Two clergymen were engaged in a controversy ; one, the plaintiff, wrote 
 
 E 2
 
 52 DEFAMATORY WORDS. 
 
 a pamplilet ; subsequently lie publislied a " collection of opinions of the 
 press " on his own pamplilet, including an inaccurate or garbled extract 
 from an article which had appeared in the defendant's newspaper. The de- 
 fendant thereupon felt it his duty in justice to the other clergyman to pub- 
 lish an article in his newspaper exposing the inaccuracy of the extract as 
 given by the plaintiff, and accusing him of purposely adding some passages 
 and sup23ressing others, so as to entirely alter the sense. Erie, C. J., 
 pointed out to the jury that the defendant was maintaining the truth, and 
 that although he was led into exaggerated language, the plaintiff had also 
 used exaggerated language himseK. Verdict for the defendant. 
 
 mhhs V. Wilkiiison, 1 F. & F. 608. 
 But where the editor of the Lancet attacked the editor of a rival paper, 
 The London Medical and Physical Journal, by rancorous aspersions on his 
 private character, the plaintiff recovered a verdict, damages £5. 
 
 Macleod v. Wahley, 3 C. & P. 311. 
 So wherever a man calls public attention to his own grievances or those 
 of his class, whether by letters in a newspaper, by speeches at public 
 meetings, or by the publication of pamplilets, he must expect to have his 
 assertions challenged, the existence of his grievances denied, and himself 
 ridiculed and denounced. 
 
 Odgcr v. Mortimer, 28 L. T. 472. 
 
 Kcenig v. Ritchie, 3 F. & F. 413. 
 
 R V. Veley, 4 F. & F. 1117. 
 
 O'Donoghue v. Hiissey, Ir. R. 5 C. L. 124. 
 
 Dwyer v. Esmonde, 2 L. R. (Ir.) 243. 
 But where the defendant in answering a letter which the plaintiff has 
 sent to the paj^er, does not confine himself to rebutting the plaintiff's 
 assertions, but retorts upon the plaintiff by inquiring into his antecedents, 
 and indulging in other uncalled for personalities, the defendant will be held 
 liable ; for such imputations are neither a proper answer to, nor a fair 
 comment on, the plaintiff's speech or letter. 
 
 Murphy v. Halinn, Ir. R. 8 C. L. 127. 
 Tlu'ee clergymen of the Church of England residing near Swansea, being 
 Conservatives, chose to attend a meeting of the supporters of the Liberal 
 candidate for Swansea ; they behaved in an excited manner, hissed and 
 interrupted the speakers, and had eventually to be removed from the room 
 by two policemen. Held that such conduct might fairly be commented on 
 in the local newspapers ; and that even a remark that " appearances were 
 certainly consistent with the belief that they had imbibed rather freely of 
 the cup that inebriates " was not, imder the circumstances, a libel. 
 
 Davis V. Duncan, L. R. 9 C. P. 396 ; 43 L. J. C. P. 185 ; 22 
 W. R. 575 ; 30 L. T. 464.
 
 SLANDER. 53 
 
 PART II. 
 
 SLANDER. 
 
 Words which are clearly defamatory when written 
 and published may not be actionable when merely 
 spoken; for then other considerations apply. The 
 reasons for the distinction have been already discussed, 
 ante, pp. 3 — 5, c. I. Spoken words are defamatory when- 
 ever special damage has in fact resulted from their use. 
 Spoken words are also defamatory when the imiDutation 
 cast by them on the plaintiff is on the face of it so 
 injurious that the Court will presume, without any 
 proof, that his reputation must be impaired thereby. 
 And the Court will so presume in three cases : — 
 
 I. Where the words charge the plaintiff with the 
 commission of some indictable offence ; or, 
 
 II. Impute to him a contagious or infectious disease 
 tending to exclude him from society ; or, 
 
 III. Are spoken of him in the way of his office, pro- 
 fession, or trade. 
 
 In no other case are spoken words defamatory, 
 unless they have caused some special damage to the 
 plaintiff.
 
 54 DEFAMATORY WORDS. 
 
 I. Where the ivords impute an indictahle offence. 
 
 Sj)okcn words, which impute that the plaintiff has 
 been guilty of an indictable offence, are actionable 
 without proof of special damage. If the offence imputed 
 be not indictable, but only punishable summarily before 
 a magistrate by penalty or fine, the words will not be 
 actionable 2^0' se. 
 
 If, however, there be any offences which are not indictable, 
 but for which a magistrate can inflict imprisonment with hard 
 labour in the first instance (not merely in default of payment 
 of a fine imposed), I apprehend that to impute such an offence 
 to the plaintiff would be actionable X)er se. Words imputing to 
 a licensed victualler that he had been guilty of an offence against 
 the Licensing Acts would be actionable as spoken of him in the 
 way of his trade : and so would words spoken of a dairyman or 
 grocer falsely alleging that he had been convicted under the 
 Sale of Food and Drugs Act, 1875. Holt, C. J., in Ogden 
 V. Turner, 6 Mod. 104 ; Holt, 40 ; 2 Salk. 696, lays it down that 
 every charge of treason or felony is actionable, but not every 
 charge of misdemeanour, only of such as entail a " scandalous " 
 and "infamous" punishment. But what misdemeanours are 
 included in the terms " scandalous " or " infamous," or, rather, 
 what misdemeanours are oiot included ? The epithets appear 
 to me to mean nothing more than that the charge must be of 
 such a nature that, if believed, it would impair the reputation 
 of the person accused. If so, this would include all indictable 
 misdemeanours, except, perhaps, such semi-civil proceedings as 
 an indictment for the obstruction or non-repair of a highway. 
 The word " infamous " clearly cannot now be taken in its 
 strictest legal sense to signify a punishment which renders the 
 person convicted incapable of giving evidence in the law courts. 
 (See the remarks of Grey, C. J., in Onsloiv v. Home, 3 Wils. 
 186 ; 2 W. Bl. 753.) In Lady CocJcaiiie's case, Cro. Eliz. 49, 
 the argument of the judge seems to imply that words are 
 actionable which impute to the plaintiff an act which would 
 be cause to bind her over to good behaviour : but I can find 
 no other authority for such a doctrine.
 
 WORDS IMPUTING A CRIME. 55 
 
 Illustrations. 
 
 A general charge of felony is actionable, though it does not specify any 
 particular felony. E.(j. : 
 
 "If you had had your deserts, you would have been hanged before now." 
 
 Bonne's Case, Cro. Eliz. 62. 
 " He deserves to have his ears nailed to the pillory." 
 
 JenJcinson v. Mayne, Cro. Eliz. 384; 1 Vin. Abr. 415, 
 " You have committed an act for which I can transport you." 
 
 C'lcrtis V. Curtis, 10 Bing. 477 ; 3 M & Scott, 819 ; 4 M. & Scott, 
 337. 
 " You have done many things for which you ought to be hanged, and I 
 will have you hanged." 
 
 Francis v. Eoose, 3 M. & W. 191 ; 1 H. & H. 36. 
 So are all charges of specific felonies. E.g. : 
 Assault with intent to rob : — 
 
 Lewhior v. Cruchley and loife, Cro. Car. 140. 
 Attempt to murder : — 
 
 Scot et ux. v. Hilliar, Lane, 98 ; 1 Vin. Abr. 440. 
 
 Preston v. Finder, Cro. Eliz. 308. 
 Attempt to rob : — 
 
 Sir Harbert Croft v. Broion, 3 Buls. 167. 
 Bigamy :— 
 
 Heming et uo;. v. Poioer, 10 ]\I. & "\V. 564. 
 
 Delany v. Jones, 4 Esp. 190. 
 Burglary : — 
 
 Somers v. House, Holt, 39. 
 Demanding money ^vith menaces : — 
 
 Neve V. Cross, Sty. 350. 
 Embezzlement : — 
 
 Williams v. Stott, 1 C. & M. 675 ; 3 Tyrw. 688. 
 Forgery : — 
 
 Baal V. Baggerley, Cro. Car. 326. 
 
 Jones V. Heme, 2 Wils. 87. 
 Larceny : — 
 
 Foster v. Broioning, Cro. Jac. 688. 
 
 Baler v. Pierce, 2 Ld. Raym. 959 ; Holt, 654 ; 6 Mod. 23 ; 2 
 Salk. 695. 
 
 Sloiimian v. Button, 10 Bing. 402. 
 
 Tomlinson v. Briftkhank, 4 B. & Ad. 630 ; 1 N. & M. 455. 
 Manslaughter : — 
 
 Ford V. Primrose, 5 D. & R. 287. 
 
 Edsall v. Ptussell, 4 M. & G. 1090; 5 Scott, N. R. 801; 2 D. 
 N. S. 641 ; 12 L. J. C. P. 4 ; 6 Jur. 996. 
 Murder : — ■ ^ 
 
 Peake v. Oldham, Cowp. 275 ; S. C. Sub nom. Oldham v. Peake, 
 2 W. Bl. 959. 
 
 Button V. Hay ward, 8 Mod. 24.
 
 56 DEFAMATORY WORDS. 
 
 Keceiving stolen goods, knowing them to have been stolen : — 
 
 Brigg's Case, God. 157. 
 
 Clarke's Case de Dorchester, 2 Eolle's Rep. 136. 
 
 Alfred v. Farlo^c, 8 Q. B. 854 ; 15 L. J. Q. B. 258 ; 10 Jur. 
 714. 
 Eobbery : — 
 
 Laiorencc v. Woodward, Cro. Car. 277 ; 1 Roll. Abr. 74. 
 
 Rowdiffe v. FAmcnds et ux., 7 M. & W. 12 ; 4 Jur. 684. 
 Treason : — 
 
 Sir William Waldegrave v. Ralph Agas, Cro. Eliz. 191. 
 
 Stapleton v. Frier, Cro. Eliz. 251, 
 
 Fry V. Came, 8 Mod. 283, 
 Unnatural offences : — 
 
 Woolnoth V. Meadows, 5 East, 463 ; 2 Smith, 28. 
 
 Colman v. Godwin, 3 Dougl. 90 ; 2 B. & C. 285 (n). 
 So it is actionable without proof of special damage to charge another with 
 the commission of the following misdemeanours : — 
 Bribery and corruption : — 
 
 Bendish v. Lindsay, 11 Mod. 194, 
 Conspiracy: — 
 
 Tihhott V, Haynes, Cro, Eliz. 191. 
 Keeping a bawdy-hoiise : — 
 
 Anonymous, Cro. Eliz. 643. 
 
 Brayne v. Cooper, 5 M. & W. 249. 
 
 micJcle V. Reynolds, 7 C. B. N. S. 114. 
 Libel :— 
 
 Sir William Russell v. Ligon, 1 Roll. Abr. 46 ; 1 Vin. Abr, 
 423. 
 Perjury : — 
 
 Ceeley v. Hoskins, Cro. Car, 509. 
 
 Holt V. Scholefield, 6 T, R. 691. 
 
 Roberts v, Camden, 9 East, 93. 
 Even in an ecclesiastical Court, 
 
 Shaw V. Tlwmpson, Cro. Eliz, 609, 
 Soliciting another to commit a crime : — 
 
 Sir Thomas Cockaine and wife v. Witnam, Cro, Eliz. 49, 
 
 Leversage v. Smith, Cro. Eliz. 710. 
 
 Tihhott v. Haynes, Cro. Eliz. 191. 
 
 Passie v. Mondford, Cro. Eliz. 747. 
 
 But see Eaton v, Allen, 4 Rep. 16 ; Cro. Eliz. 684. 
 Subornation of perjury : — 
 
 Guerdon v. Wintcrstud, Cro, Eliz, 308. 
 
 Harris v. Dixon, Cro. Jac. 158. 
 
 Bridges v, Playdel, Brownl. & Golds. 2. 
 
 Harrison v, Thornhorough, 10 Mod. 196 ; Gilbert's Cases in Law 
 & Eq. 114, 
 Where the words impute merely a trespass in pursuit of game, punish- 
 able primarily by fine alone, no action lies without proof of special damage, 

 
 WORDS IMPUTING A CRIME. 57 
 
 although imprisonment in the pillory may be inflicted in default of pay- 
 ment of the fine (3 Wm. & M. c. 10). 
 
 Ogden v. Timur (1705), 6 Mod. 104 ; Salk. 696 ; Holt, 40. 
 [Certain dicta in this case which appear to go further, were disapproved 
 of by Grey, C. J., in 3 Wils. 186, and must be now considered as bad 
 law.] 
 
 Where the words impiited an [offence against the Fishery Acts, punish- 
 able only by fine and forfeiture of the nets and instruments used : Kdd 
 that no action lay without proof of special damage. 
 
 McOaU V. Foot, 18 Ir. Jur. (Vol. xi. N. S.) 287 ; 15 L. T. 115. 
 To state that criminal proceedings are about to be taken against the 
 plaintiff (e.(/., that the Attorney-General had directed a certain attorney to 
 prosecute him for perjury) is actionable, although the speaker does not 
 expressly assert that the plaintiff is guilty of tlie charge. 
 Roberts v. Camden, 9 East, 93. 
 Tempest v. Cliamhers, 1 Stark. 67. 
 
 Contra, Harrison v. King, 4 Price, 46 ; 7 Taunt. 431 ; 1 B. & 
 Aid. 161. 
 Words which merely impute a criminal intention, not yet put into action, 
 are not actionable. Guilty thoughts are not a crime. But as soon as any step 
 is taken to carry out such intention, as soon as any overt act is done, an 
 attempt to commit a crime has been made : and every attempt to commit 
 an indictable oftence is at common law a misdemeanour, and in itself indict- 
 able. To impute such an attempt is therefore clearly actionable. 
 Harrison v. Strattou, 4 Esp. 217. 
 Words which merely disclose a suspicion that is in the speaker's mind, 
 and which the bystanders could not understand as conveying any definite 
 charge of felony, are not actionable. 
 
 Tozer v. Mashford, 6 Ex. 539 ; 20 L. J. Ex. 225. 
 
 It is not necessary that the words shoiikl accuse 
 the plaintiii of some fresh, undiscovered crime, so as to 
 put him in jeopardy or cause his arrest. Of com-se, if 
 such consequences have followed, they may be alleged 
 as special damage ; but where such consequences are im- 
 possible, the words are still actionable. Thus, to call a 
 man a returned convict, or otherAvise to falsely impute 
 that he has been tried and convicted of a criminal offence, 
 is actionable without special damage. 
 
 For it is at least quite as iujurious to the plaintiffs reputa- 
 tion, to say that he has in fact been convicted, as to say that he 
 will be, or ouglit to be, convicted. Many think that such state-
 
 S8 DEFAMATORY WORDS. 
 
 ments should be actionable, even when true, if they are mali- 
 ciously or unnecessarily volunteered. See "post, p. 179, c. VII. 
 
 llliisivaiions. 
 
 It is actionable witliout proof of special damage to say of the plaintiff — 
 that he had been in Launceston gaol and was burnt in the hand for 
 coining, 
 
 Gainford v. I'uke, Cro. Jac. 536 ; 
 that he " was in Winchester gaol, and tried for his Ufe, and would have 
 been hanged, had it not been for Leggatt, for breaking open the 
 granary of farmer A. and stealing his bacon." [Note that here the 
 speaker appears to admit that the plaintiff was acquitted, but still 
 asserts that he was in fact guilty.] 
 
 Carpenter v. Tarrant, Cas. temp. Hardwicke, 339. 
 " He was a thief and stole my gold." It was argued here that " was " 
 denotes time past ; so that it may have been Avhen he was a child, and 
 therefore no larceny ; or in the time of Queen Elizabeth, since when there 
 had been divers general pardons : Sed per cur. : " it is a great scandal to be 
 once a thief ; ior pcena potest redimi, culpa perennis erit." 
 Boston V. Tatam, Cro. Jac. 623. 
 It is actionable to call a man " thief " or " felon," even though he once 
 committed larceny, if after conviction he was pardoned either under the 
 Great Seal or by some general statute of pardon. 
 
 Chiddington v. Wilhins, Hobart, 67, 81 ; 2 Hawk. P. C. c. 37, 
 
 s. 48. 
 Leyman v. Latimer and others, 3 Ex. D. 15, 352 ; 46 L. J. Ex. 
 765 ; 47 L. J. Ex. 470 ; 25 W. R. 751 ; 26 ^\. R. 305 ; 37 
 L. T. 360, 819. 
 It is actionable to call a man falsely " a returned convict." 
 Fowler v. Doivdney, 2 M. & Rob. 119. 
 
 In dealing with old cases on this point, care must be taken 
 to remember the state of the criminal law as it existed at the 
 date of publication. 
 
 Illustrations. 
 
 So long as the 18 Eliz. c. 3 was in force, it Avas actionable to charge a 
 woman -with being the mother, a man with being the putative father, of a 
 bastard child, chargeable to the parish, 
 
 Anne Davis's Case, 4 Rep. 17 ; 2'Salk. 694 ; 1 Roll. Abr. 38. 
 
 Salter v. Broivne, Cro. Car. 436 ; 1 Roll. Abr. 37. 
 So long as the penal statutes against Roman Catholics were in force it 
 was actionable to say " He goes to mass," or " He harboiu-ed his son, know- 
 ing him to be a Romish priest." 
 
 Waldcn v. Mitchell, 2 Ventr. 265. 
 
 Smith v. Flyyit, Cro, Jac, 300.
 
 WORDS IMPUTING A CRIME. 59 
 
 Bccus, before such statutes were laassed. 
 
 Pierepoint'' s Case, Cro. Eliz. 308. 
 So in many old cases sucli words as " She is a witch " were hekl action- 
 able, the statute, 1 Jac. I. c. 11, being then in force. But that statute is 
 now repealed by the 9 Geo. II. c. 5, s. 3, which also expressly provides that 
 no action shall lie for charging another with witchcraft, sorcery, or any 
 such oflfence, 
 
 Borjers v. Gravat, Cro. Eliz. 571. 
 
 Dacy V. Clinch, Sid. 53. 
 It was formerly the custom of the City of London, of the borough of 
 Southwark, and also, it is said, of the city of Bristol, to cart whores. 
 Hence to call a woman " whore " or " strumpet " in one of those cities is 
 actionable, if the action be brought in the City Courts, which take notice 
 of their own customs without proof. But no action will lie in the Superior 
 Courts at Westminster for such words, because such custom has never been 
 certified by the Eecorder, and would now be difficult to prove. 
 
 Oxford et m\ v. Cross (1599), 4 Rep. 18. 
 
 Hassell v. Capcot (1639), 1 Vin. Abr. 395 ; 1 Roll. Abr. 36. 
 
 Cooke v. Wincjfield, 1 Str. 555. 
 
 Roberts v. Herbert, Sid. 97; 1 Keble, 418. 
 
 Staintonetux. v. /o7ies, 2 Selw. N. P. 1205^(13th edn.) ; 1 Dougl. 
 380, n. 
 
 Theyer v. Eastwick, 4 Burr. 2032. 
 
 Brand and xvife v. Roberts and wife, 4 Burr. 2418. 
 
 Vicars v. Worth, 1 Str. 471. 
 So it was in 1602 held not actionable to say: — "Thou hast received 
 stolen swine, and thou knowest they were stolen ; " for receiving is not a 
 common law offence, unless it amounts to comforting and assisting the 
 felon as an accessory after the fact. But ever since 3 Wm. & Mary, c. 9, 
 s. 4, and 4 Geo. I. c. 11, such words would be clearly actionable, 
 
 Dawes v. Bolton or Boughton, Cro. Eliz. 888 ; 1 Roll. Abr. 68. 
 
 Cox V. Humphrey, Cro. EHz. 889. 
 A charge of deer stealing would be actionable now, though in 1705 it 
 was held not actionable, because it was subject only to a penalty of £30. 
 
 Ogden v. Turner, Salk. 696 ; Holt, 40 ; 6 Mod. 104. 
 So now it would of course be actionable to accuse a man of secreting a 
 will : though such an accusation was held not actionable in 
 
 Godfrey v. Given, Palm. 21 ; 3 Salk. 327. 
 Where a vicar of a parish falsely declared that the plaintift', a parishioner, 
 was excommunicated, it was held an action lay ; possibly because the 
 person excommunicated was at that date liable to imprisonment under the 
 writ de excommunicato aqnendo ; but there seems to have been some allega- 
 tion of special damage in the declaration. 
 
 Barnabas v. Traunter, 1 Vin. Abr. 396. 
 But an accusation of adultery, fornication, &c., was never ground for an 
 action in the civil courts. The person accused had a remedy in the spiritual 
 courts till the 18 & 19 Vict. c. 41 : now he has none.
 
 6o DEFAMATORY WORDS. 
 
 The charge must be clearly that of an indictable 
 offence, although it need not be stated with all the pre- 
 cision of an indictment. If merely fi-aud, dishonesty, 
 immorality, or vice, be imj)uted, no action lies without 
 proof of special damage. And even where words of 
 specific import are employed (such as *' thief" or 
 "traitor"), still, if the defendant can satisfy the juiy 
 that they were not intended to impute any specific crime, 
 but merely as general terms of abuse, and meant no more 
 than "rogue" or "scoundrel," and were so understood 
 by all Avho heard the conyersation, no action lies. Eut 
 if the bystanders reasonably understand the words as 
 defiiiitely charging the plaintiff with the commission of 
 some specific crime, an action lies. 
 
 Illustrations. 
 
 " You forged my name : " these words are actionable, althougli it is not 
 stated to wliat deed or instnrment. 
 
 Jones V. Heme, 2 "\Yils. 87. 
 
 Overruling Anon. 3 Leon. 231 ; 1 Roll. Abr. 65. 
 To say tliat a man is " forsworn " or " lias taken a false oath " is not a 
 sufficiently definite charge of perjury ; for there is no reference to any 
 judicial proceeding. But to say " Thou art forsworn in a Court of record " 
 is a sufficient charge of perjury ; for this will be taken to mean that he was 
 forsworn while giving e^vidence in a Court of record before the lawfully 
 appointed judge thereof on some point material to the issue before him. 
 
 Stanhope v. Blith (1585), 4 Rep. 15. 
 
 Holt V. Scholefield, 6 T. R. 691. 
 
 Ceeh/ V. Hoskins, Cro. Car. 509. 
 To say " I have been robbed of three dozen winches ; you bought two, 
 (me at 3s., one at 2s. ; you knew well when you bought them that they 
 cost me three times as much making as you gave for them, and that they 
 could not have been honestly come by," is a sufficient charge of receiving 
 stolen goods, knowing them to have been stolen. [An indictment which 
 merely alleged that the prisoner knew the goods were not honestly come by 
 would be bad. R. v. TFilson, 2 Mood. C. C. 52.] 
 
 Alfred v. Farlow, 8 Q. B. 854 ; 15 L. J. Q. B. 258 ; 10 Jur. 714. 
 " He is a pick-pocket ; he picked my pocket of my money," was once 
 held an insufficient charge of larceny. 
 
 TFalls or JVatts v. Rymes, 2 Lev. 51 ; 1 Ventr. 213 ; 3 Salk. 
 325.
 
 WORDS IMPUTING A CRIME. 6i 
 
 But now this would clearly be held sufficient. 
 
 Baker v. Pierce, 2 Ld. Raym. 959 ; Holt, G54 ; 6 Mod. 23 ; 2 
 
 Salk. 695. 
 Stebhing v. Warner, 11 Mod. 255. 
 " He has defrauded a mealman of a roan horse " held not to imply a 
 criminal act of fraud ; as it is not stated that the mealman was induced to 
 part with his property by means of any false pretence. 
 Richardson v. Allen, 2 Chit. 657. 
 So none of the following words are actionable without proof i^f special 
 damage : — 
 «' Cheat " :— 
 
 Savage v. Eohenj, 2 Salk. 694 ; 5 Mod. 398, 
 Davis V. Miller et ux., 2 Str. 1169. 
 " Swindler " : — 
 
 Savile v. Jardine, 2 H. Bl. 531. 
 Black V. Hunt, 2 L. R. Ir. 10. 
 TFard v. JVeeks, 7 Bing. 211 ; 4 M. & P. 796. 
 " Rogue," " rascal," " villain," &c. :— 
 Slanhope v. Blith, 4 Rep. 15. 
 "Runagate ": — 
 
 Cockainc v. Hopkins, 2 Lev. 214. 
 " Cozener ": — 
 
 Brunkard v. Segar, Cro. Jac. 427 ; Hutt. 13 ; 1 Vin. Abr. 427. 
 " Common-filcher ": — 
 
 Goodale v. Castle, Cro. Eliz. 554. 
 "Welcher":— 
 
 Blackman v. Bryant, 27 L. T. 491. 
 Nor are the words " gambler," " black-leg," " black-sheep," unless it can be 
 shown that the bystanders understood the words to imply " a cheating 
 gambler punishable by the criminal law." 
 
 Burnett v. Allen, 3 H. & N. 376 ; 27 L. J. Ex. 412 ; 1 F. & F. 
 125 ; 4 Jur. N. S. 488. 
 
 If the crime imputed be one of which the plaintifi 
 could not by any possibility be guilty, and all who heard 
 the imputation knew that he could not by any possibility 
 be guilty thereof, no action lies, for the plaintiff is never 
 in jeopardy, nor is his reputation in any way impaired. 
 (Buller's N. P. 5.) 
 
 Illustrations. 
 
 Words complained of : — " Thou hast killed my wife." Everyone who 
 heard the words knew at the time that defendant's wife was still
 
 62 DEFAMATORY WORDS. 
 
 alive: they could not therefore understand the word "kill" to mean 
 " murder." 
 
 Bnag v. Gee,, 4 Eep. 16, as explained by Parke, B., in Heming v. 
 Poioer, 10 M. & W. 569. 
 
 And see TFeb v. Poor, Cro. Eliz. 569. 
 
 Talbot V. Case, Cro. Eliz. 823. 
 
 Dacy V. Clinch, Sid. 53. 
 
 Jacob V. Mills, 1 Ventr. 117; Cro. Jac, 343. 
 It is no slander to say of a churchwarden that he stole the bell-ropes of 
 his parish church ; for they are officially his property ; and a man cannot 
 steal his own goods. 
 
 Ja,ckson v. Adams, 2 Bing. N. C. 402 ; 2 Scott, 599 ; 1 Hodges, 
 
 339. 
 
 So it is not actionable for A. to charge a man who is not A.'s clerk or 
 
 servant with embezzling A.'s money ; for no indictment for embezzlement 
 
 would lie. [But surely this can only be the case where the bystanders are 
 
 aware of the exact relationship between A. and the plaintiff.] 
 
 Williams v. Stott, 1 C. & M. 675 ; 3 Tyrw. 688. 
 But where a married woman said, " You stole my faggots," and it was 
 argued for the defendant that a married woman could not own faggots, and 
 therefore no one could steal faggots of hers : the Court construed the words 
 according to common sense and ordinary usage to mean, " You stole my 
 Jiusband's faggots." 
 
 Stamf and u-ife v. JVliite and icife, Cro. Jac. 600. 
 
 Charnel's Case, Cro. Eliz. 279. 
 
 When the charge is made homi fide while giving the plaintiff 
 into custody or prosecuting him according to law, it will be 
 privileged; see post, c. VIIL, pp. 220, 221. 
 
 II. Where the words impute a contagions 
 disease. 
 
 Words imputing to the plaintiff that he has an in- 
 fectious or contagious disease are actionable without 
 proof of special damage. For the effect of such an im- 
 
 f
 
 WORDS IMPUTING A CONTAGIOUS DISEASE. 63 
 
 putation is naturally to exclude the plaintiff from society. 
 Such disease may be either leprosy, venereal disease, or, 
 it seems, the plague [Villers v. Monslei/, 2 "Wils. 403); 
 but not the itch, the falling sickness, or the small-pox ; 
 there is not such terror of infection in the latter cases. 
 The words must distinctly impute that the plaintiff has 
 the disease at the time of publication : an assertion that 
 he has had such a disease would clearly be no ground for 
 his being shunned. ( CarslaJce v. Mapledoram^ 2 T. E. 473 ; 
 Taylor v. Hall, 2 Str. 1189.) 
 
 Any words which the hearers would natm-ally under- 
 stand as conveying that the plaintiff then has such a 
 disease are sufficient. Many distinctions are drawn in 
 old cases about the pox, a word which may imply either 
 the actionable syphilis, or the more harmless small-pox. 
 It has been decided that " he has the pox" {simpliciter) 
 shall be taken to mean '' he has the small-pox ; " but 
 that if any other words be used referring to the effects 
 of the disease, or the way in which it was caught, or 
 even the medicine taken to cui-e it, these may be referred 
 to as determining which pox was meant. 
 
 Illustrations. 
 
 To say of a person, " He liatli tlie falling sickness " is not_actionable 
 unless it be spoken of him in the way of his profession or trade. 
 Taylor v. Pcrr (1607), RoUe's Abr. 44. 
 To say to the plaintiff, " Thou art a leprous knave," is actionable, 
 Taylor v. Perkins (1607), Cro. Jac. 144 ; Rolle's Abr. 44. 
 To say of the plaintiff that " He hath the pox " is actionable, whenever 
 the word " wench " or " whore " occurs in the same sentence. 
 Brook V. Wise (1601), Cro. Eliz. 878. 
 Pye V. TFallis (1658), Carter, 55. 
 Grimes v. Lovel, 12 Mod. 242. 
 Whitfield V. Powel, 12 Mod. 248. 
 Clifton V. Wells, 12 Mod. 634. 
 Bloodworth v. Grey, 7 M. & Gr. 334 ; 8 Scott, N. R. 9.
 
 64 DEFAMATORY WORDS. 
 
 III. Words which are spoken of the ^ylaintif in the ivay of 
 his profession or trade ; or disparage him in an office 
 of public trust. 
 
 Such words are actionable without proof of any special 
 damage. It must injure the plaintiff's reputation to 
 disparage him in his very means of livelihood. Where 
 the Court sees that the words spoken affect the plaintiff 
 in his office, profession, or trade, and dii-ectly tend to 
 prejudice him therein, they ask for no further proof of 
 damage. But it must always be averred on the record 
 that the words were spoken of the plaintiff in relation to 
 his office, profession, and trade, and that he held such 
 office, or was actively engaged in such profession or 
 trade, at the time the words were spoken. [Bellamy v. 
 Burch, 16 M. & W. 590.) 
 
 The office held by the plaintiff need not be one of profit ; it 
 may be merely confidential and honorary, as that of a justice of 
 the peace. Which is a fresh proof that the gist of an action of 
 slander is the injury to the plaintiff's reputation, and not an}'- 
 presumed pecuniary loss. It would be impossible to presume 
 that a justice of the peace loses any money by being falsely 
 charged with corruption orextoi'tion ; for there is no emolument 
 attached to his office : yet he may recover heavy damages for 
 the slander. So, too, a physician or a barrister may sue for 
 any slander imputing professional misconduct, although in con- 
 templation of law their fees are mere gratuities. 
 
 Ulustrations. 
 
 It is actionaljle without proof of special damage : — 
 To say that a judge gives corrupt sentences. 
 
 Ccesar v. Cursedly, Cro. Eliz. 305. 
 To say that a clergyman had been guilty of gross immorality and had 
 appropriated the sacrament money. 
 
 Highnore v. Earl and Countess of Harrington, 3 C. B. N. S. 142.
 
 WORDS CONCERNING TRADERS, ETC. 65 
 
 To say of an attorney that he deserved to lie struck off the roll. 
 Phillijis V. Janscn, 2 Esp. 624. 
 JVarton v. Gearing, 1 Vict. L. R. C. L. 122. 
 To say of a watchmaker, " he is a bungler, and knows not how to make a 
 good watch." 
 
 Redman v. Pyne, 1 Mod. 19. 
 To in any way impute insolvency or bankruptcy to any merchant or 
 trader. 
 
 Ame V. Johnson, 10 Mod. 111. 
 Davis V. Leivis, 7 T. R. 17. 
 
 But it by no means follows that an// words sjDoken to 
 the disparagement of an officer, in-ofessional man, or 
 trader, will ipso facto be actionable jfj>^r se. Words 
 to be actionable on this ground, " must touch the plaintiff 
 in his office, profession, or trade : " that is, they must 
 be shown to have been spoken of the plaintiff in relation 
 thereto, and to be such as Avould prejudice him therein. 
 They must impeach either his skill or knowledge, or 
 his official or professional conduct. It is true that his 
 special office or situation need not be expressly referred 
 to, if the charge made be such as must necessarily 
 affect it. And in determining whether the Avords used 
 would necessarily affect the plaintiff in his office, pro- 
 fession, or trade, regard must be had to the rank and 
 position of the plaintiff', and to the mental and moral 
 requirements of the office he holds. Words may be 
 actionable if spoken of a clergyman or a barrister, which 
 would not be actionable of a trader or a clerk. 
 
 Thus, where integrity and ability are essential to 
 the due conduct of ^plaintiff's office, words impugning 
 the integrity or ability of the plaintiff' are clearly 
 actionable without any express mention of that office ; 
 for they distinctly imply that he is unfit to continue 
 therein. But where the plaintiff does not hold any 
 situation of trust or confidence, AVords wliich merely 
 convey a general imputation of dishonesty, or charge
 
 66 DEFAMATORY WORDS. 
 
 Mm with some misconduct not connected with his special 
 profession or trade, "will not be actionable. 
 
 Illustrations. 
 
 To impute immorality or adultery to a beneficed clergyman is actionable ; 
 for it is ground of deprivation. 
 
 GalUmj V. Munhall, 9 Excli. 294 ; 23 L. J. Ex. 78 ; 2 C. L. E. 
 399. 
 Not so in the case of a pliysician. 
 
 Ayre v. Craven, 2 A. & E. 2 ; 4 Nev. & M. 220. 
 Or a staymaker. 
 
 Brayne v. Cooper, 5 M. & T\*. 249. 
 Or a clerk to a gas company. 
 
 Lumhy v. Alldciy, 1 C. & J. 301 ; 1 Tyrw. 217. 
 To say of a superintendent of police that "he has been guilty of conduct 
 iTutit for jxiblication " is not actionable, unless the words were spoken of 
 him with reference to his office. 
 
 James v. Broolc, 9 Q. B. 7 ; 16 L. J. Q. B. 17 ; 10 Jur. 541. 
 It is actionable to impute /ia&i7u«? drunkenness to a beneficed clergyman. 
 
 Dod V. Robinson, Al. 63. 
 Or to a master mariner in command of a vessel. 
 
 Tncin v. Brandicood, 2 H. & C. 960 ; 33 L. J. Ex. 257 ; 9 L. T. 
 772 ; 10 Jur. N. S. 370 ; 12 W. E. 438. 
 Or to a schoolmaster. 
 
 Brandrick v. Johnson, 1 Vict. L. E. C. L. 306. 
 It would not be actionable where sobriety was not an essential qualifica- 
 tion for the post. And to state that a clergyman or a schoolmaster was 
 drank on one particuhxr occasion, and that neither in church nor in school, 
 would not be actionable ; as that alone would not necessitate his removal 
 from his office. 
 
 Tighe v. Wicks, 33 Up. Can. Q. B. Eep. 470. 
 Brandrick v. Johnson, 1 Vict. L. E. C. L. 306. 
 And see Hume v. Marshall, Times, Nov. 26th, 1877. 
 To sny of an attorney that "he hath the falling sickness" is actionable, 
 without special damages, because that disables liim in his profession. 
 Taylor v. )Perr (1607), 1 EoU. Abr. 44. 
 But it is not actionable to say of an attorney, " He has defrauded, his 
 creditors and has been horsewhipped off the course at Doncaster ; " for it is 
 no part of his professional duties to attend liorse-races. 
 
 Doyley v. Eoherts, 3 Bing. N. C. 835 ; 5 Scott, 40 ; 3 Hodges, 154. 
 To say of a livery-stable-keeper : — " You are a regular prover under 
 bankruptcies, a regular bankrupt naaker," is not actionable ; for it is not a 
 charge against him in the way of his trade. 
 
 Angle v. Alexander, 7 Bing. 119 ; 1 Cr, & J. 143 ; 4 M. & P. 
 870 ; 1 Tyrw. 9. 
 But it is actionable without proof of special damage to say of a game-
 
 WORDS CONCERNING TRADERS, ETC. 67 
 
 keeper that " he trapped three foxes ; " for tliat wouhl be misconduct in a 
 gamekee^^er. 
 
 Foulgcr v. Newcomb, L. E. 2 Ex. 327 ; 36 L. J. Ex. 1C9 ; 15 
 W. E. 1181 ; 16 L. T. 595. 
 So to say of an auctioneer, " You are a deceitful rascal, a villain, and a 
 liar. I would not trust you with an auctioneer's licence. You robbed a 
 man you called your friend ; and, not satisfied with ^10, you robbed him 
 of <£20 a fortnight ago," was held actionable by Cockburn, C. J., in 
 Eamsdale v. Greenacre, 1 F. & F. 61. 
 And see Bryant v. Loxton, 11 Moore, 344. 
 But to say of a land speculator, " He cheated me of 100 acres of land," 
 was held in Canada not to touch him in his trade and therefore not 
 actionable. 
 
 Felloives v. Hunter, 20 Up. Can. Q. B, 382. 
 See Sibleij v. Tomlins, 4 Tyrw. 90, iiost, jd. 80. 
 To call a dancing mistress " an hermaphrodite " is not actionable ; for 
 girls are taught dancing by men as often as by women. 
 
 JFetherhead v. Armitage, 2 Lev. 233 ; 3 Salk. 328 ; Freem. 277; 
 2 Show. 18. 
 To say of the keeper of a restaurant, " You are an infernal rogue and 
 swindler," was held not to be actionable without proof of special damage ; 
 as not of themselves necessarily injurious to a restaurant keeper ; for, as the 
 Supreme Court of Victoria remarked, " in fact there might be very success- 
 ful restaurant-keepers, who were both rogues and swindlers." 
 
 Brady v. Youlden, Kerferd and Box's Digest of Victoria Cases, 
 709 ; Melbourne Argus Reports, 6 Sept. 1867. 
 So to call a carpenter " a rogue," or a cooper "a varlet and a knave," is 
 clearly not actionable j^cr se ; for the words do not touch them in their 
 trades. 
 
 Lancaster Y. French, 2 Str. 797. 
 Cotes V. Ketle, Cro. Jac. 204. 
 A declaration alleged that the defendant falsely and maliciously spoke of 
 the plaintiff, a M'orking stone-mason, '•' He was the ringleader of the nine 
 hours' system," and " He has ruined the town by bringing about the 
 nine hoiirs' system," and " He has stopped several good jobs from being 
 carried out, by being the ringleader of the system at Llanelly," ^^■hereby 
 the plaintiff was prevented from obtaiiiing employment in his trade at 
 Llanelly : — Held, on demurrer, that, the words not being in themselves 
 defamatory, nor connected by averment or by implication Avith the plaintift"'s 
 trade, and the alleged damage not being the natural or reasonable conse- 
 quence of the speaking of them, the action could not be sustained. 
 
 Miller V. David, L. R. 9 C. P. 118 ; 43 L. J. C. P. 84 ; 22 W. E. 
 332 ; 30 L. T. 58. 
 
 Again, where a special kind of knowledge is essential 
 to the proper condnct of a particular profession, denying 
 that the plaintiff possesses such special knowledge will 
 
 F 2
 
 68 DEFAMATORY WORDS. 
 
 be actionable, if the plaintiff belongs to that particular 
 profession, but not otherwise. 
 
 lllusiraiions. 
 
 It lias been held actionable without special damage : — 
 
 To say of a barrister, " He is a dunce, and will get little by the law" 
 [though here it was argued for the defendant that Duns Scotus was " a 
 great learned man ; " that though to call a man " a dunce " might, in 
 ordinary parlance, imply that he was dull and heavy of wit, yet it did not 
 deny him a solid judgment ; and tliat to say "he will get little by the 
 law " might only mean that he did not wish to practise]. 
 Peard v. Jones (1635), Cro. Car. 382. 
 To say of an attorney," He has no more law than Master Cheyny's bull," 
 or " He has no more law than a goose." 
 
 Baker v. Morfite, vel Morphew, Sid. 327 ; 2 Keble, 202. 
 [According to the report in Keble, an objection was taken in this case on 
 behalf of the defendant, that it was not averred in the declaration, " that 
 Cheyny had a bull, scd non allocatur, for the scandal is the greater, if he 
 had none." And the Court adds a solemn qiuere as to saying " He has no 
 more law than the man in the moon," feeling no doubt a difficulty as to 
 ascertaining the precise extent of that individual's legal acquirements. 
 But see Day v. Buller, 3 Wils. 59, jwst, p. 75, where the Court strangely 
 decides that it is defamatory to say of an attorney that "he is no more a 
 lawyer than the devil ! "] 
 
 To say of an attorney : — " He cannot read a declaration." 
 
 Powell V. Jones, 1 Lev. 297. 
 To say of a physician that " he is no scholar," " because no man can be 
 a good physician, unless he be a scholar." 
 
 Carvdren v. Highley, al. Tythay, Cro. Car. 270 ; Godb. 441. 
 To say of the deputy of Clarencieux, king-at-arms, " He is a scrivener 
 and no herald." 
 
 BrooU v. Clarh, Cro. Eliz. 328 ; 1 Vhi. Abr. 464. 
 To say of a midwife, " Many have perished for her want of skill." 
 
 Flowers' Case, Cro. Car. 211. 
 To charge an apothecary with having caused the death of a cliild by 
 administering to it improper medicines. 
 
 Edsall V. Bussell, 4 M. & Gr. 1090 ; 5 Scott N. E. 801 ; 2 Dowl. 
 
 N. S. 641 ; 12 L. J. C. P. 4 ; 6 Jur. 996. 
 Tutty V. Aleu'in, 11 Mod. 221. 
 Where an architect is engaged to execute certain work, it is a libel upon 
 him in the way of his profession to write to his employers asserting that he 
 has no exj^erience in that particular kind of work, and is therefore unfit to 
 be entrusted with it. 
 
 Botterill and another v. Uliytehead, 41 L. T. 588. 
 But since no special learning or ability is expected of a justice of the 
 peace it is not actionable to call him " fool," " ass," " blockhead," or any
 
 WORDS CONCERNING TRADERS, ETC. 69 
 
 other words merely imputing want of natural cleverness or ignorance of 
 law. But vrords which imj^ute to him corruption, dishonesty, extortion, or 
 sedition are actionable of course. 
 
 Bill V. Neal, 1 Lev. 52. 
 
 Hoio V. Prin, Holt, 652 ; 2 Salk. 694 ; 2 Ld. Eaym. 812 ; 7 
 
 Mod. 107 ; 1 Bro. Pari. C. 64. 
 Aston V. Blagrave, 1 Str. 617 ; 8 Mod. 270 ; Fort. 206 ; 2 Ld. 
 Eayra. 1369. 
 
 The plaintiff must always aver on the pleadings that 
 he was carrying on the profession or ti'ade, or holding 
 the office, at the time the words were spoken. Sometimes 
 this is admitted by the slander itself, and if so, evidence 
 is of course unnecessary in proof of this averment. 
 (Yrisarn v. Clement, 2 C.^ & P. 223 ; 3 Bing. 432.) But 
 in other cases, unless it is admitted on the pleadings, evi- 
 dence must he given at the trial of the special character in 
 which plaintiff sues. As a rule, it is sufficient for plain- 
 tiff to prove that he was acting in the office or actively 
 engaged in the profession or trade without proving any 
 appointment thereto, or producing a diploma or other 
 formal qualification. Omnia 2^^'csmnuntur rite esse acta. 
 {Rutherford v. Evans, 4 C. & P. 79 ; 6 Bing. 451 ; Berry- 
 man V. Wise, 4 T. P. 366 ; Canndl v. Curtis, 2 Bing. N. C. 
 228.) But there is an exception to this rule where the 
 very slander comj^lained of imputes to a medical or legal 
 practitioner that he is a quack or impostor, not legally 
 qualified for practice : here the plaintiff must be prepared 
 to prove his qualification strictly by producing diplomas 
 or certificates duly sealed, signed, and stamped. [Cottins 
 V. Carnegie, 3 I^. & M. 703 ; 1 Ad. & E. 695 ; Aloises v. 
 Thornton, 8 T. E. 303 ; WaMejj v. Healey cS" CooJce, 4 
 Exch. 53 ; 18 L. J. Ex. 426.) 
 
 Whether or no the words were spoken of the plaintiff 
 in the way of his business, is a question for the jury to 
 determine at the trial. [Per Cockburn, C.J., in Ramsdate 
 V. Greenacre, 1 F. & F. 61.) There should always be 
 an averment in the statement of claim that the words
 
 /o DEFAMATORY WORDS. 
 
 were so spoken; though, where the words are clearly of 
 such a nature as necessarily to affect the plaintiff in his 
 office or business, the omission of such an averment will 
 not be fatal. {Stanton\. SmiiJi, 2 Ld. Eaym. 1480 ; 2 Str. 
 762; Jones v. Littler, 7 M. & W. 423; 10 L. J. Ex. 171.) 
 
 It will be well to deal more particularly with certain special 
 offices and professions. 
 
 Persons holdivg any Office of Confidence and Trust. 
 
 Words which impute a want of integrity to any one holding 
 an office of confidence or trust, whether an office of profit or 
 not, are clearly actionable per se. So if the words employed 
 have a natural tendency to cause the plaintiff to be removed 
 from his office, as by imputing insufficiency or gross incom- 
 petency, or habitual negligence of his duties. But where the 
 words merely impute want of ability, without ascribing to the 
 plaintiff any wicked or dishonest conduct ; there no action lies 
 (at all events, w^here the office is honorary as in the case of a 
 justice of the peace). {Per Holt, C. J., in Hoive v. Prin, Holt, 
 65.3 ; 2 Salk. G94.) 
 
 As the danger of plaintiff's losing his office is the gist of the 
 action, it is essential that plaintiff should hold the office at the 
 time the words were spoken. (Per De Grey, C. J., in Onslow v. 
 Home, 3 Wils. 188 ; 2 W. Bl. 753, overruling the dictum of 
 Pollexfen, C. J., in Walden v. Mitchell, 2 Vent. 266.) 
 
 Illustrations. 
 
 It is actionable without proof of special damage : — 
 To accuse a Eoyal Commissioner of taking bribes. 
 Moor V. Foster, Cro. Jac. 65. 
 Purely V. Staceij, Burr. 2698. 
 To say of a justice of the peace, " Mr. Stuckley covereth and hideth 
 felonies, and is not worthy to be a Justice of the Peace ; " " for it is against 
 liis oath and the office of a Justice of Peace, and a good cause to piut him 
 out of the commission." 
 
 StucJdeij V. Bullhead, 4 Eep. 16. 
 And see Sir John Harjier v. Beamond, Cro. Jac. 56. 
 Sir Miles Fleehcood v. Curl, Cro. Jac. 557 ; Hob. 268. 
 To say of a justice of the peace that "he is a Jacobite and for bringing 
 in the Prince of Wales and Pojiery ; " for this implies that he is disaffected
 
 WORDS CONCERNING PERSONS IN OFFICE. 71 
 
 to the established Government and should be removed from office imme- 
 diate] v. 
 
 How V. Prin (1702), Holt, 652 ; 7 Mod. 107 ; 2 Ld. Eaym. 812; 
 2 Salk. 694. Affirmed in House of Lords suh nom. Prinne v. 
 Howe, 1 Brown's Parly. Cases, 64. 
 To insinuate that a justice of the peace takes bribes or "perverts justice 
 to serve his own turn." 
 
 Ccesar v. Curseny, Cro. Eliz. 30.3. 
 Carn v. Osrjood, 1 Lev. 280. 
 Alleston v. Moor, Hetl, 167. 
 Masham v. Bridges, Cro. Car. 223. 
 Isham V. York, Cro. Car. 15. 
 Beamond v. Hastings, Cro. Jac. 240. 
 
 Ast07i V. Blagrare, 1 Str. 617 ; 8 Mod. 270 ; 2 Ld. Eaym. 1369 ; 
 Fort. 206. 
 To say to a churchwarden, " Thou art a cheating knave and hast cheated 
 tlie parish of £40." 
 
 Strode v. Holmes (1651), Styles, 338 ; 1 Eoll. Abr. 58. 
 Woodruff V. JFeolIey, 1 Vin. Abr. 463. 
 To call an escheator, attorney, or other officer of a Court of Eecord, an 
 " extortioner." 
 
 Stanley v. Boswell, 1 Eoll. Abr. 55. 
 To say of a town- clerk that he hath not performed his office according to 
 law. 
 
 Fowell V. Coire, EoUe's Abr. 56. 
 Wright v. Aloorhovse, Cro. Eliz. 358. 
 To say of a constable :— " He is not worthy the office of constable." 
 
 Taylor v. How, Cro. Eliz. 861 ; 1 A^n. Abr. 464. 
 In America it has been held actionable to charge a member of a nominat- 
 ing convention of a political party with having been influenced by a bribe. 
 Hand v. Winton, 38 N. Y. 122. 
 And see Sanderson v. Caldioell, 45 N. Y. 398. 
 Dolloway v. Turrell, 26 Wend. (N. Y.), 383. 
 Stone yl Cooper, 2 Denio (N. Y.), 293. 
 So too in Canada, where the plaintiff was charged Avith being a public 
 robber— innuendo, that he, plaintiff, had defrauded the public in his dealings 
 with them ; it was held not necessary for plaintiff to aver that he is in any 
 office, trade, or employment in which he could have defrauded the public. 
 Taylor v. Carr, 3 Up. Can. Q. B. Eep. 306. 
 
 But it is not actionable without proof of special damage :— 
 To impute insincerity to a Member of Parliament. 
 
 Onslow V. Home, 3 Wils. 177 ; 2 W. Bl. 750. 
 To say of a justice of the peace," He is a fool, an ass, and a beetle-headed 
 justice ; " for these are but general terms of abuse and disclose no ground 
 for removing the plaintiff from office. 
 Bill V. Neal, 1 Lev. 52. 
 Sir John Hollis v. Briscov) et ux., Cro. Jac. 58.
 
 72 DEFAMATORY WORDS. 
 
 To say of a justice of the peace, " He is a logger-headed, a slouch- 
 headed, bursen-bellied hound." 
 
 i?. V. ¥arrc, 1 Keb. 629. 
 To say of a justice of the peace, " He is a blood-sucker and sucketh 
 blood : " " for it cannot be intended what blood he sucketh." 
 iiir Christo])her Hilliard v. Constable, Cro. Eliz. 306. 
 
 Clergymen and Ministers. 
 
 Words are actionable if spoken of a beneficed clergyman 
 which would not be actionable if spoken of one without cure of 
 souls. {Galhvey v. Marshall, 9 Ex. 294 ; 28 L. J. Ex. 78 ; 2 
 C. L. E,. 899.) But it does not follow that all words which tend 
 to bring a beneficed clergyman into disrepute, or which merely 
 impute that he has done something -wTong, are actionable with- 
 out special damage. The reason always assigned for this distinc- 
 tion between beneficed clergymen and others is that the charge, 
 if true, would be ground of degradation or deprivation. {Drake 
 V. Dral-e, 1 Roll. Abr. 58 ; Dod v. Rohinson (1648), Aleyn, 63 ; 
 Pemberton v. Coils, 10 Q. B. 461 ; 16 L. J. Q. B. 403 ; 11 Jur. 
 1011.) The imputation must therefore be such as, if true, 
 would tend to prove the plaintiff unfit to continue in his office, 
 and therefore tend more or less directly to proceedings being 
 taken by the Bishop. If the plaintiff holds any chaplaincy, 
 lectureship, or readership, from which he might be removed, 
 he will come within the same rules as a beneficed clergyman. 
 (Payne v. Beuicmorris, 1 Lev. 248.) But a clergyman Avithout 
 any preferment or office stands on the same footing as a dis- 
 senting minister, and must prove that some pecuniary damage 
 has followed from the speaking of the words. (See Hartley v. 
 Herring, 8 T. R. 130.) 
 
 Ill list rat ions. 
 It is actionable without proof of special damage : — 
 
 To say of a parson that "he had two wives ; " for though bigamy was 
 not made felony till 1603, still in 1588 it Avas "cause of deprivation." 
 Nicholson v. Lpie, Cro. Eliz. 94. 
 To say that " he is a drunkard, a whoremaster, a common swearer, a 
 common liar, and hatii preached false doctrine, and deserves to be degraded ;" 
 for " the matters charged are good cause to have him degraded, whereby he 
 should lose his freehold." 
 
 Dod v. Rohinson (1648), Aleyn, 63. 
 
 Dr. Sibthorpe's Case, W. Jones, 366 ; Rolle's Abr. 58.
 
 IVORDS CONCERNING CLERGYMEN. 73 
 
 To say " He preacheth lyes in the pulpit ;" " car ceo est hon cause de depri- 
 vation." 
 
 Drake v. Drake (1G52), Roll. Abr. 58 ; 1 Vin. Abr. 463. 
 [These cases clearly overrule Parret v. Carjwnter, Noy 64 ; 2 Cro. Eliz. 
 502, -wherein it was held that an action could lie only in the spiritual court 
 for saying of a parson : — " Parret is an adulterer, and hath had two children 
 by the wife of J. S., and I will cause him to be deprived for it." See the 
 remarks of Pollock, C.B., 23 L. J. Ex. 80.] 
 
 To say to a parson, " Thou hast made a seditious sermon and moved the 
 people to sedition to-day." 
 
 Phili'pi^, B.D. V. Badhij (15S2), cited in Bittridge's Case, 4 Rep. 
 19. 
 To say of a parson, " He preaches nothing but lies and malice in the 
 pulpit ; " for the words are clearly spoken of him in the way of his profes- 
 sion. 
 
 Crauden v. JFalden, 3 Lev. 17. 
 And see Pocock v. Nash, Comb. 253. 
 Musgrave v. Bovey, Str. 946. 
 To say to a clergyman," Thou art a dnmkard," is not of itself actionable ; 
 but it is submitted that to impute to a clergyman habitual drunkenness, or 
 drunkenness whilst engaged in the discharge of his ofiflcial duties, would be 
 actionable. 
 
 Cucks V. Starrc, Cro. Car. 285. 
 Tighe v. Wicks, 33 Upper Canada Q. B. Rep. 470. 
 To charge a clergyman with immorality and misappropriation of the 
 sacrament money is clearly actionalde. Damages .£750. 
 
 Highmore v. Earl and Countess of Harrington, 3 C. B. N. S. 
 142. 
 I And of course to charge a clergyman with having indecently assaulted a 
 woman on the highway is actionable. 
 
 Evans v. Gioijn, 5 Q. B. 844. 
 To say of a beneficed clergyman that he drugged the wine he gave the 
 speaker and so fraudulently induced him to sign a bill of exchange for a 
 large amount is actionable without proof of special damage ; but it is not 
 actionable merely to say of a beneficed clergyman " he pigeoned me." 
 
 Pemberton v. Colls, 10 Q. B. 461 ] IG L. J. Q. B. 403 ; 11 Jur. 
 1011. 
 To charge a clergyman with incontinence is not actionable, unless he 
 hold some benefice or preferment, or some post of emolument, such as 
 preacher, curate , chaplain or lecturer. 
 
 Gallvey v. Marshall, 23 L. J. Ex. 78 ; 9 Exch. 294 ; 2 C. L. R. 
 
 399. 
 
 To say of one who had been a linendraper, but at time of publication 
 
 was a dissenting minister, that he was guilty of fraud and cheating when a 
 
 linendraper, is no slander of the plaintiff in his office of dissenting minister. 
 
 Hopivood V. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 
 
 To say of a bishop that " he is a wicked man " is actionable without 
 
 special damage. Per Scroggs, J., in Townshend v. Dr. Hughes, 2 Mod. 160.
 
 74 DEFAMATORY WORDS. 
 
 But this is only becai;se the Statute of Scandalum Magnatum, 2 Eich. II. 
 st. 1, c. 5, expressly mentions " prelates." See j)o.sf, p. 134, and note to 
 10 Q. B. p. 469. 
 
 Ba rristers-at-Lav\ 
 
 It is quite clear that barristers and physicians may sue for 
 words touching them in their profession, although their fees 
 are honorary. [The loss of a gratuity is special damage : see 
 post, c. X.] 
 
 Illustrations. 
 
 The plaintiff was a barrister and gave counsel to divers of the king's 
 subjects. The defendant said to J. S. (the plaintiff's father-in-law), con- 
 cerning the plaintiff : — " He is a dunce and will get little by the law." 
 J. S. replied, " Others have a better opinion of him." The defendant 
 answered, " He was never but accounted a dunce in the Middle Temple." 
 Held that the words were actionable, though no special damage was alleged. 
 Damages, one hundred marks. 
 
 Peanl v. Jones, Cro. Car. 382. 
 So it is actionable to say of a barrister : — 
 " Thou art no lawyer ; thou canst not make a lease ; thou hast that 
 degree without desert ; they are fools who come to thee for law." 
 Bemkes v. Allen, Rolle's Abr. 54. 
 Or, " He hath as much law as a Jackanapes. (N.B. — The words are not 
 " 110 more law than a Jackanapes.") 
 
 Palmer v. Bayer, Owen, 17 ; Cro. Eliz. 342, cited with approval 
 
 in Brokers Case, Moore, 409. 
 [And see Caivdrey v. Tetley, Godb. 441, where it is said that had 
 the words been, " He has no more icit than a Jackanapes," no 
 action would have lain ; wit not being essential to success at 
 the bar, according to F. Pollock, 2 Ad. & E. 4.] ; 
 Or, " He has deceived his client, and revealed the secrets of his cause." 
 
 Snag v. Graaj, 1 Roll. Abr. 57 ; Co. Entr. 22. 
 Or, " He will give vexatious and ill counsel, and stir up a suit and milk 
 her purse, and fill his own large pockets." 
 
 King v. Lake, 2 Ventr. 28 ; Hardres, 470. 
 
 Solicitors and Attornies. 
 
 It is actionable without special damage : — 
 To say of an attorney, " He is a very base rogue and a cheating knave, 
 and doth maintain himself his wife and children by his cheatmg." 
 Anon. (1638), Cro. Car. 516. 
 See Jenkins v. Smith, Cro. Jac. 586. 
 To say of an attorney that " he hath tlie falling sickness ; " for that dis- 
 ables him in his profession. 
 
 Tcujlor V. Perr (1607), 1 Eolle's Abr. 44. 
 To say of an attorney, " What, does he pretend to be a lawyer I He is no
 
 WORDS CONCERNING LAWYERS, ETC. 75 
 
 more a lawyer than the devil ; " or any other words imputing gross igno- 
 rance of law. 
 
 Day V. Buller, 3 Wils. 59. 
 
 Baker v. Morfuc, Sid. 327 ; 2 Keli. 202 ; ante, p. 08. 
 
 Powell V. Jones, 1 Lev. 297, ante, p. 68. 
 To say of an attorney, " He is only an attorney's clerk, and a rogue ; he 
 is no attorney," or any words imputing that he is not a fully ([ualified 
 practioner. 
 
 Hardicick v. Chandler, Stra. 1138. 
 To say of an attorney, " He is an ambidexter," i.e., one who being retained 
 by one party in a cause, and having learnt all his secrets, goes over to the 
 other side, and acts for the adversary. Such conduct was subject for a qui 
 tarn action under an old penal statute : see Eastell's Entries, p. 2, Action 
 sur le case vers Attorney, 3. 
 
 Annison v. Blojield, Carter, 214 ; 1 Roll. Abr. 55. 
 To impute that he will betray his clients' secrets and overthrow their 
 cause. 
 
 Martijn v. BurUngs, Cro. Eliz. 589. 
 To charge an attorney with barratry, champerty, or maintenance. 
 
 Boxe V. Barnahy, 1 Roll. Abr. 55 ; Hob. 117. 
 
 Proud V. Hawes, Cro. Eliz. 171 ; Hob. 140, 
 
 Taylor v. Starkey, Cro. Car. 192, 
 To say of an attorney :— " He stirreth up suits, and once promised me, 
 that if he did not recover in a cause for me, he would take no charges of 
 me ; " " because stirring up suits is barratry, and undertaking a suit, no 
 purchase no pay, is maintenance." 
 
 Smith V. Andrews, 1 Roll. Abr. 54 ; Hob. 117. 
 To assert that an attorney has been guilty of professional misconduct and 
 ought to be struck off the rolls. 
 
 Byrchley's Case, 4 Rep. 16. 
 
 Phillips V. Jansen, 2 Esp. 624. 
 
 Wart on v. Gearing, 1 Vict, L. R. C, L. 122. 
 But it is not actionable to say of an attorney, " He has defrauded his 
 creditors and has been horsewhipped off the course at Doncaster ; " for it is 
 no part of his professional duties to attend horse-races, and his creditors are 
 not his clients, 
 
 Doyley v. Roberts, 3 Ring. N. C. 835 ; 5 Scott, 40 ; 3 Hodges, 154. 
 Nor to abuse him in general terms, such as "cheat," "rogue," or 
 " knave ; " though to say, " You cheat your clients," would be actionable. 
 
 Alleston v. Moor, Het. 167. 
 
 And see Bishop v. Latimer, 4 L. T. 775. 
 
 Physicians and Surgeons. 
 
 Any. words imputing to a practising medical man misconduct 
 or incapacity in the discbarge of his professional duties is 
 actionable per se.
 
 76 DEFAMATORY WORDS. 
 
 Illustrations. 
 Thus it is actionable -u-itlioiat proof of special damage : — 
 To accuse any physician, surgeon, accoucheur, midwife, or apothecary, 
 with having caused the death of any patient through his ignorance or 
 culpable negligence. 
 
 Poc V. Mondford, Cro. Eliz. 620. 
 Tuttey V. Aleicin, 11 Mod. 221. 
 JFatson v. Vanderlash, Hetl. 71. 
 Suuthee v. Denny, 1 Exch. 196 ; 17 L. J. Ex. 151. 
 Edsall V. Russell, 4 M. & Gr. 1090 ; 12 L. J. C. P. 4 ; 5 Scott, 
 N . E. 801 ; 2 Dowl. N. S. 641 ; 6 Jur. 996. 
 To call a practising medical man " a quack-salver," or " an empiric,"' or 
 a " mountebank." 
 
 Allen V Eaton, 1 Roll. Abr. 54. 
 
 Goddart v. Haselfoot, 1 Viner's Abr. (S.a.), pi. 12 ; 1 RoU. Abr. 54. 
 To say that " his character is so bad, that none of the medical men here 
 will meet him." 
 
 Southee v. Denny, 1 Exch. 196. 
 
 But see Clay v. Roberts, 9 Jur. N. S . 580 ; 1 1 W. R. 649 ; 8 L. T. 397. 
 
 Ramadge v. Ryan, 9 Bing. 3.33 ; 2 M. & Sc. 421. 
 
 But it is not actionable : — 
 
 To say of a surgeon, " He did poison the wound of his patient ; " 
 without some averment that this was improper treatment of the wound ; 
 for else " it might be for the cure of it." 
 Suegoe's Case, Hetl. 175. 
 
 Nor to call a person who practises medicine, or surgeon, without full 
 legal qualitication, "a quack," or " an impostor ;" for the law only protects 
 lawful employments. 
 
 Collins V. Carnegie, 1 A. & E. 695 ; 3 N. & ^L 703. 
 
 Nor to charge a physician with adultery unconnected with his profes- 
 sional conduct. It would be otherwise if he had been accused of seducing, 
 or conmiitting adultery with, one of his patients. 
 
 Ayre v. Craven, 2 A. & E. 2 ; 4 N. & M. 220. 
 
 Dawes intended to employ the plaintifl", a surgeon and accoucheur, at his 
 wife's approaching confinement ; but the defendant told Dawes that the 
 plaintilf 's female servant had had a child by the plaintiff : Dawes conse- 
 quently decided not to employ the plaintiff : Dawes told his mother and 
 his wife's sister what defendant had said ; and consequently the plaintift"s 
 practice fell off considerably among Dawes' friends and acqiiaintance and 
 others. The fee for one confinement was a gviinea. Held that the action 
 lay, special damage being proved ; that the plaintiff" was entitled to more 
 than the one guinea damages ; that the jury should give him such sum 
 as they considered Dawes' custom was worth to him ; but that the jury 
 clearly could not in this action give him anything for the general decline 
 of his business. 
 
 Dixon v. Smith, 5 H. & N. 450 ; 29 L. J. Ex. 125. 
 
 I
 
 WORDS CONCERNING TRADERS. 77 
 
 So, to impute incompetency to any one j^ractising an art, as a 
 dentist, a schoolmaster, a land surveyor, or an architect, is 
 actionable per se. 
 
 Illustrations. 
 
 Thu3 it is actionable without proof of special damage : — 
 
 To say of a Bchoolmaster, " Put not your son to him, for he will come 
 away as very a dunce as he went." 
 
 Watson V. Vanderlash, Hetl. 71. 
 Or to accuse a schoolmaster of habitual drunkenness. 
 
 Erandrick v. Johnson, 1 Vict. L. E. C. L. 306. 
 Or to say of an architect engaged to restore a church, that he has no ex- 
 perience in church work. 
 
 Botierill and another y. TFTiijtehead, 41 L. T. 588. 
 Or to say of a land surveyor, in the way of his trade, " Thou art a cozener 
 and a cheating knave, and that I can prove." 
 
 London v. Eastgate, 2 Rolle's Eep. 72. 
 But it has actually been held not actionable to impute prostitution to a 
 schoolmistress. 
 
 TFetherhead v. Armitagc, 2 Lev. 233 ; 2 ShoAV. 18 ; Freem. 277 ; 
 
 3 Salk. 328. 
 Per Twisden, J., in Wharton v. Brook, Ventr. 21 ; but see the 
 remarks of Lord Deuman, C. J., in Ayre v. Craven, 2 A. & E. 
 2; 4N. & M. 220. 
 
 Traders. 
 
 So if the plaintiff carry on any trade recognised by the law, 
 or be engaged in any lawful employment, however humble, an 
 action lies for any words which affect him in the way of such 
 trade or employment, and prejudice him therein. But the 
 words must relate to his employment, and " touch " him 
 therein. 
 
 Illustrations. 
 
 Thus, it is actionable without proof of special damage : — 
 
 To say of a clerk or servant that he had " cozened his master." 
 Seaman v. Bigg, Cro. Car. 480. 
 Beignald's Case (1640), Cro. Car. 563. 
 To say of a servant girl that she had had a miscarriage, and had lost her 
 place in consequence. 
 
 Connors v. Justice, 13 Ir. C. L. R. 451. 
 To say of a gamekeeper that he trapped three foxes ; for that would be 
 clearly a breach of his duties as gamekeeper. 
 
 Foulger v. Newcomb, L. R. 2 Ex. 327 ; 36 L. J. Ex. 169 ; 15 
 AV. R, 1181 ; 16 L. T. 595.
 
 78 DEFAMATORY WORDS. 
 
 To say to an innkeeper : — " Tliy house is infected with the pox, and thy 
 wife was laid of the pox ; " for even if sniall-pox only was meant, still " it 
 was a discredit to the phiintiiF, and guests would not resort " to his house. 
 Damages £50, 
 
 Levefs Case, Cro. Eliz. 289. 
 
 And see the remarks of Kelly, C. B., in Riding v. Smith, 1 Ex. 
 D. 94 ; 45 L. J. Ex. 281 ; 24 W. R. 487 ; 34 L. T. 500. 
 
 But it is not actionalile per se : — 
 
 To say of a livery-stalde keeper : — " You are a regular prover under 
 bankruptcies, a regular bankrupt maker ; " for it is not a charge against 
 him in the way of his trade. 
 
 Angle v. Alexamkr, 7 Bing. 119 ; 1 Cr. & J. 143 ; 4 M. & P. 
 870 ; 1 Tyrw. 9. 
 Nor to say to a clerk to a gas-company :— '• You are a fellow, a disgrace 
 to the town, unfit to hold your situation for your conduct with whores. " 
 Lumhj V. Allday, 1 C. & J. 301 ; 1 Tyrw. 217. 
 And see James v. Brool:, 9 Q. B. 7 ; 16 L. J. Q. B. 17 ; 10 Jur. 
 541. 
 Nor to impute to a staymaker that his trade is maintained by the prosti- 
 tution of his shopwoman. 
 
 Brayne v. Cooper, 5 M. & W. 249. 
 
 But see Riding v. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 
 W. E. 487 ; 34 L. T. 500. 
 
 The law ouards most carefully tlie credit of all merchants 
 and traders ; any imputation on their solvency, any suggestion 
 that they are in pecuniary difficulties, or are attempting to 
 evade the operation of any Bankruptcy Act is therefore 
 actionable per se. 
 
 Ill list fations. 
 
 Thus it is actionable without proof of special damage : — 
 
 To impeach tlie credit of any merchant or tradesman by imputing to 
 him IjanLruptcy or insolvency, either past, present or future. 
 Johnson v. Lenunon, 2 Rolle's Rep. 144. 
 Thompson v. Tu-enge, 2 Rolle's Rep. 433. 
 Vivian v. JFillet, Sir Thomas Raymond, 207 ; 3 Salk. 326. 
 Stanton v. Smith, Ld. Raymond, 1480 ; 2 Str. 762. 
 JVhittington v. Gladirin, 5 B. & C. 180 ; 2 C. & P. 146. 
 Robinson v. Marchant, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 
 
 156. 
 Harrison v. Bevington, 8 C. & P. 708. 
 Gostling v. BrooU, 2 F. & F. 76. 
 Bromi V. Smith, 13 C. B. 596 ; 22 L. J. C. P. 151 ; 17 Jur. 807 ; 
 
 1 C. L. R. 4.
 
 WORDS CONCERNING TRADERS. 79 
 
 To say to a tailor, " I heard you were run away," sr. from your creditors. 
 
 Davis V. Levns, 7 T. R. 17. 
 
 And see Dobson v. Thornistone, 3 Mod. 112. 
 
 Chapman v. Laviphirc, 3 Mod. 155. 
 
 Arne v. Johnson, 10 Mod. 111. 
 
 Harrison v. Thornhorongh, 10 Mod. 196 ; Gilb. Gas. 114. 
 To say of a brewer that he had been arrested for debt. And this 
 although no express reference to his trade was made at time of publication, 
 for such words must necessarily affect his credit therein. 
 
 Jones V. Littler, 7 M. & W. 423 ; 10 L. J. Ex. 171. 
 To assert that the plaintiff had once been bankrupt in another place, 
 when carrying on another trade ; for that may still affect him here in his 
 present trade. 
 
 Leycroft v. Dunker, Cro. Car. 317. 
 
 Hall V. Smith, 1 M. & S. 287. 
 
 Fujgins v. Cogswell, 3 M. & S. 3G9. 
 To say of any trader : — " He is not able to pay his debts." 
 
 Drake v. Hill, Sir T. Raym. 184; 2 Keble,549 ; 1 Lev. 276 ; Sid. 424. 
 
 Hooker v. Tucker, Holt, 39. 
 
 Morris v. Langdale, 2 Bos. & Pull. 284. 
 
 Orpwood V. Barkes (vel Parkes), 4 Bing. 261 ; 12 Moore, 492. 
 To impute insolvency to an innkeejier, even though at that date inn- 
 keepers were not subject to the bankruptcy laws. 
 
 Whittington v. Gladinn, 5 B. & C. ISO ; 2 C. & P. 146. 
 
 Southani v. Allen, Sir T. Raym. 231. 
 
 So if the defendant's words impute to tliej^laintiff dishonesty 
 and fraud in the conduct of his trade, such as knowingly selling 
 inferior articles as superior, or wilfully adulterating his wares ; 
 they will be actionable 2^^^' se. Though all bond fide complaints 
 by a customer of the goods supplied to him are of course 
 privileged. (Crisp v. GUI, 29 L. T. (Old S.), 82 ; Oddy v. 
 Lord Geo. Paulet, 4 F. & F. 100.9.) If the words merely 
 impugn the goods the plaintiff sells, they are not actionable 
 unless they fall within the rules relating to Slander of Title, 
 post, c. V. ; for they are but an attack oa a thing, not on a 
 person. {Fenii v. Dixe (1G38), 1 Roll. Abr. 58 ; Evans v. 
 Harlow, 5 Q. B. (324 ; l:} L. J. Q. B. 120 ; Hannan v. Delany, 
 2 Str. 898; Fitz. ]21; 1 Barnard. 289, 438.) But often an 
 attack on ^v commodity may be also an indirect attack upon its 
 vendor ; eg. if fraud or dishonesty be imputed to him in offer- 
 ing it for sale. (See Jenner v. A'Becl-ett, L. K 7 Q. B. 11 ; 41 
 L. J. Q. B. 14 ; 20 W. R 181 ; 25 L. T. 4G4 ; Barnet v. Wells 
 (1700), 12 Mod. 420 ; Clark v. Freeman, 11 Beav. 112 ; 17 L. J. 
 Oh. 142; 12 Jur. 149.)
 
 8o DEFAMATORY WORDS. 
 
 Illustrations. 
 
 Thus it is actionable without proof of special damage : — 
 To say of a trader : — " He is a cheating knave, and keeps a false debt- 
 book." 
 
 Crawfoot v. Dale, 1 Vent. 263 ; 3 Salk. 327. 
 Overruling Todd v. Hastings, 2 Saund. 307. 
 Or that he uses false weights or measures. 
 
 Griffiths V. Leivis, 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. 
 Bray v. Ham, 1 Brownlow & Golds. 4. 
 Stober v. Green, ib, 5. 
 Prior V. Wilson, 1 C. B. N. S. 95. 
 To say to a cornfactor, " You are a rogue and a swindling rascal, you 
 delivered me 100 bushels of oats, worse by 6s. a bushel than I bargained 
 
 for." 
 
 Thomas v. Jackson, 3 Bing. 104 ; 10 Moore, 425. 
 To say of a tradesman that he adulterates the goods he sells. 
 
 Jesson V. Hayes (1636), Roll. Abr. 63. 
 To say of a contractor : — "He used the old materials," when his contract 
 was for new, is actionable, with proper innuendoes. 
 
 Baboneau v. Farrell, 15 C. B. 360 ; 24 L. J. C. P. 9 ; 1 Jur. 
 N. S. 114; 3C. L. R. 142. 
 
 Sir E. Greenfield's Case, Mar. 82 ; 1 Viner's Abr. 465. 
 
 See Smith v. Mathews, 1 Moo. & Rob. 151. 
 To say of an auctioneer or appraiser who had valued goods for the 
 defendant, " He is a damned rascal, he has cheated me out of £100 on the 
 valuation." 
 
 Bryant v. Loxton, 1 1 Moore, 344, 
 
 Bamsdale v. Greenacre, 1 F. & F. 61, ante, p. 67. 
 To say of a butcher that he changed the lamb bought of him for a coarse 
 piece of mutton. 
 
 Crisj) V. Gill, 29 L. T. Old Series, 82. 
 
 Eice V. Pigeon, Coml). 161. 
 But to call a tradesman "a rogue," or "a cheat," or " a cozener," is not 
 actionable, unless it can be shown that the words refer to his trade. To 
 impute distinctly that he cheats or cozens in liis trade is actionable. 
 
 Johns V. Gittings, Cro. Eliz. 239. 
 
 Cotes V. Ketle, Cro. Jac. 204. 
 
 Terry v. HoojKr, 1 Lev. 115. 
 
 Savage v. Eobery, 5 Mod. 398 ; 2 Salk. 694. 
 
 Surman v. Shelleto, 3 Burr. 1688. 
 
 Bromefield v. SnoJce, 12 Mod. 307. 
 
 Savile v. Jardine, 2 H. Bl. 531. 
 
 Lancaster v. French, 2 Stra. 797. 
 
 Davis V. Miller et ux,, 2 Stra. 1169. 
 
 Fellou-es v. Hunter, 20 Up. Can. Q. B. 382. 
 
 Brady v. Youlden, Melbourne Argus R., an
 
 WORDS CONCERNING TRADERS. 8i 
 
 [N.B. — Lancaster v. French aiipears to go a little t'lirtlier tlian the other 
 cases cited : but if so, it must be taken to be so far overruled by them.] 
 
 So to say to a pork butcher, "Who stole Fraser's pigs? You did, you 
 bloody thief, ami I can prove it — you poisoned -them with mustard and 
 brimstone," was held not actionable (the jury having found that the words 
 were not intended to impute felony) ; for there was nothing to show that 
 they were spoken of the plaintiff in relation to his trade. 
 Sibley V. Tomlins, 4 Tyrwhitt, 90. 
 
 So to say of a grocer, " His shop is in the market," is not actionable, in 
 the primary sense of the Avords at all events. 
 
 Rnd v. Tutnell, 29 W. R. 172 ; 43 L. T. 507. 
 
 It must be averred and proved that the plaiutiff carried on 
 his trade at the time the words were spoken ; else the words 
 cannot be spoken of him in the way of such trade. Bellamy v. 
 Burch, 16 M. & W. 590. Moreover the trade or employment 
 must be one recognised by the law as a legitimate means of 
 earning one's living. 
 
 Illiidratlons. 
 
 A stock-jobber could not sue for words spoken of him in the way of his 
 trade, so long as that trade was illegal within the 7 Geo. II. c. 8, s. 1 (Sir 
 John Barnard's Act ; now repealed by 23 & 24 Vict. c. 28.) 
 Morris v. Langdale, 2 Bos. & Pull. 284. 
 Collins V. Carnegie, 1 A. & E. C95 ; 3 N. & M. 703. 
 If the plaintiff avers that he carries on two trades, it will be sufficient to 
 prove that he carries on one, if the words can affect him in that one. 
 Figijins v. Cogswell, 3 M. &, S. 369. 
 Hull V. Hmitli, 1 M. & S. 287. 
 Where insolvency is imjmted to one member of a firm, either he or 
 the firm may sue, for it is a reflection on the credit of both. 
 Harrison v. Bevington, 8 C. & P. 708. 
 Cook and another v. Batchellor, 3 Bos. & Pul. 150. 
 Foster and others v. Lawson, 3 Bing. 452 ; 1 1 Moore, 360. 
 A married woman, carrying on a separate trade according to the custom 
 of London, or within the meaning of the Married Women's Property Act, 
 1870, s. 1, may by s. 11 sue without joining her husband for any tort 
 affecting such separate trade or her credit therein. 
 
 Summers v. City Bank, L. R. 9 C. P. 580 ; 43 L. J, C. P. 261.
 
 82 DEFAMATORY WORDS. 
 
 IV. Words actionable only lij reason of special 
 damage. 
 
 1^0 otlier words are actionable without proof of special 
 damage. Thus, to accuse a man of fi-aud, dishonesty, 
 immorality, or any vicious and dishonourable (but not 
 criminal) conduct, is not actionable, unless it has pro- 
 duced as its natui'al and necessary consequence some 
 pecuniary loss to the plaintiff. 
 
 Illustrations. 
 
 Thus the following words are not actionable without proof of special 
 damage : — 
 
 " Thou art a scurvey bad fellow." 
 
 Fisher v, Atkinson, 1 Roll. Abr. 43. 
 " A rogue, a villain, and a varlet," (for these, and words of the like kind, 
 are to be considered as " words of heat.") 
 
 Fer Cur. in Stanhope v. Blifh, 4 Rep. 15. 
 " A runagate rogue." 
 
 Cockaine v. Hopkins, 2 Lev. 214. 
 " A common filcher." 
 
 Goodah v. Castle, Cro. Eliz. 554. 
 " A cozening knave." 
 
 Brunkard v. Segar, Cro. Jac. 427 ; Hutt. 13 ; 1 Yin. Abr. 427. 
 " Welcher." 
 
 Blackman v. Bryant, 27 L. T. 491. 
 " You are a swindler." 
 
 Savile v. Jardine, 2 H, & Bl. 531. 
 
 Black v. Hunt, 2 L. R. Ir. 10. 
 " He is a rogue and a swindler ; I know enough about him to hang 
 him." 
 
 TFard v. IFeeks, 7 Bing. 211 ; 4 ]\I. & P. 796. 
 " He is a rogue, and has cheated his brother-in-law ot upwards of 
 £2000." 
 
 Hopwood y. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 
 To say " You cheat everybody, you cheated me, you cheated Mr. Saun-
 
 WORDS IMPUTING IMMORALITY. 83 
 
 deis," is not actionable unless it be spoken of the plaintiff in the way of his 
 profession or trade. 
 
 Davis V. Miller et ux., 2 Str. 1169. 
 To call a man a " blackleg " is not actionaljle unless it can be shown that 
 word was understood by the bystanders to mean "a cheating gambler 
 liable to be prosecuted as such." 
 
 Bar7iett v. Allen, 3 H. & N. 376 ; 4 Jur. N. S. 488 ; 27 L. J. 
 Ex. 412 ; 1 F. & F. 125. 
 In an American case the difficulty caused by absence of special damage 
 was surmounted by suing in trespass : — A man who, instead of walking 
 along the street, stops on the pavement opjjosite the plaintiff 's freehold 
 shop using insulting and abusive language towards the plaintiff, and persists 
 in such conduct though requested to move on, is a trespasser, and the jury 
 in an action of trespass may award substantial damages, though no special 
 damages be proved, and although the abusive words be not actionable ^:)n- 
 sc ; Adams v. Rivers, 11 Barbour (New York) Reports, 390. For as one of 
 the public he was only entitled to use the highway for passing and repassing. 
 Dovastou V. Payne, 2 Sm. Lg. Cas. (8th ed.), p. 142. And evidence of his 
 language while committing a trespass is properly admitted to show in what 
 spirit the act was done. Merest v. Harvey, 5 Taunt. 442. " AVhere a 
 wruugful act is accompanied bywords of contumely and abuse, the jury 
 are warranted in taking that into consideration and giving retributory 
 damages." Per Byles, J., in 
 
 Bell v. Midland By. Co., 10 C. B. N. S. 287, 308 ; 30 L. J. C. P. 
 273 ; 9 W. R. G12 ; 4 L. T. 293. 
 
 Words imputing ininioral conduct, profligacy, adultery, 
 &c., GA^en when spoken of one liolding an office or carry- 
 ing on a profession or business, will not be actionable, 
 unless they *' touch him " in that office, profession, or 
 business. Thus, if alleged of a beneficed clergyman they 
 will be actionable, because if the charge 'were true it 
 would be ground for degradation or deprivation, as it 
 would prove him unfit to hold his benefice or to continue in 
 the active duties of his profession. ( Gallwey v. Marshall., 
 !) Ex. 294 ; 23 L. J. Ex. 78.) But if the same words 
 were spoken of a trader, or even of a physician or a 
 schoolmistress, they would not be actionable without 
 proof of special damage, as they do not necessarily afl'ect 
 tlie plaintiff in relation to his trade or profession. The 
 imputation must be connected with the professional 
 
 duties of the plaintiff. 
 
 a 2
 
 DEFAMATORY WORDS. 
 
 Illustrations. 
 
 Words imputing adultery to fi physician were laid to Lave been spoken 
 " of him iu his profession," but there Avas nothing in the declaration to 
 connect the imputation with the plaintiff's jirofessional conduct. Held that 
 the words were not actionable without special damage. 
 Ayre v. Craven, 2 A. & E. 2 ; 4 N. & M. 220. 
 To imj^ute prostitution to a schoolmistress is iiot actionable. Per 
 Twisden, J., in 
 
 Wharton v. Brook, Ventr. 21. 
 
 JFetherhead v. Armitage, 2 Lev. 233 ; 2 Show. 18 ; Freem. 277 ; 
 3 Salk. 328. 
 And words imputing immorality to a trader or his clerk are not actionable 
 without sjiecial damage. 
 
 Lumby v. AUday, 1 Or. & J. 301 ; 1 Tyrwh. 217. 
 Nor are woids imputing to a staymaker that his trade is maintained by 
 the prostitution of his shopwoman. 
 
 Brayne v. Coo2)cr, 5 M. & W. 249. 
 
 But now see Riding v. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 
 24 W. R. 487 ; 34 L. T. 500. 
 
 Words imputing imcliastity or adultery to a woman, 
 married or unmarried, however gross and injurious they 
 may be, are not actionable ; unless she can prove that 
 they have directly caused her special damage. 
 
 As to what constitutes special damage, see the 
 stringent rules laid down in c. X., jmst, pp. 308 — 333. 
 
 The only exception is in the case of actions brought in the 
 local Courts of the city of London, the borough of Southwark 
 (Sid. 97), and it is said of the city of Bristol, for words spoken 
 within the jurisdiction of those Courts. It was formerly the 
 custom in those localities to cart and whip whores, tingling a 
 basin before them. Hence to call a woman " whore " or 
 " strumpet " {Cook v. Wingjield, 1 Str. oo5) or "bawd " (1 Yin. 
 Abr. 8.96) or her husband a "cuckold" {Vicars v. Worth, 1 
 Str. 471) was supposed to be an imputation of a criminal 
 offence to the female plaintiff and therefore actionable. But 
 no action will lie in any of the superior Courts at Westminster 
 for such words, since the custom has never been certified by 
 the Recorder and must therefore be strictly proved. It was 
 found impossible to prove such a custom in 1782, and it would
 
 WORDS IMPUTING UNCHASTITY. 85 
 
 be still more difficult to do so in the present day. The City 
 Courts used formerly to take judicial notice of their own 
 custom ; but I doubt if they would do so now, the custom 
 being entirely extinct. See Oxford et ux. v. Cross (1599), 4 
 Rep. 18 ; Hassell v. Capcot (1639), 1 Vin. Abr. 395; 1 Roll. 
 Abr. 36 ; Cook v. Wingfield, 1 Str. 555 ; Watson v. Clerke, 
 Comb. 138, 139 ; Stainton et ux. v. Jones, 2 Selw. N. P. 1205 
 (13th ed.) ; notes [14] and [96] to 1 Dougl. by Frere, p. 380 ; 
 Theyer v. Eastwick, 4 Burr. 2032 ; Brand and vnfe v. Roberts 
 and tvife, 4 Burr. 2418 ; Rily v. Lewis, 1 Vin. Abr. 396 ; Vicars 
 V. Worth, 1 Str. 471 ; Hodgkins et ux. v. Corbet et ux. 1 Str, 
 545 ; Roberts v. Herbert, Sid. 97 ; S. C. nom. Cans v. Roberts, 
 1 Keble, 418. 
 
 Illustrations. 
 
 To say of a young woman that she had a bastard is not actionable without 
 proof of special damage ; " because it is a spiritual defamation, punishable 
 in the spiritual court." 
 
 Per Holt, C.J., in Ogden r. Turner, Holt, 40 ; 6 Mod. 104 ; 2 
 Salk. 696. 
 To call a woman " a whore," or "a strumpet " is not actionable, except by 
 special custom if the action be tried in the cities of London and Bristol. 
 " To maintain actions for such brabling words is against law." 
 Oxford et ux. v. Cross (1599), 4 Rep. 18. 
 Gascoigne et ux. v. Ambler, 2 Ld. Raym. 1004, 
 Poiver V. Shaw, 1 Wils. 62. 
 It is not actionable to call a woman a "bawd," 
 
 Hollingshead's Case (1632), Cro. Car. 229. 
 Hixe V. HoUingshed (1632), Cro. Car. 261. 
 unless it be in the City of London. 
 
 Eily V. Lewis (1640), 1 Vin. Abr. 396. 
 The words " You are livijig by imposture ; you used to walk St. Paul's 
 Churchyard for a living," — spoken of a woman with the intention of im- 
 puting that she was a swindler and a prostitute, — are not actionable without 
 special damage. 
 
 TFilby v. FAston, 8 C. B. 142 ; 18 L. J. C. P. 320 ; 13 Jur. 706; 
 
 7 T). & L. 143. 
 
 So to say of a married man tliat he lias " had two bastards and should 
 
 liave kept them '' is not actionable, though it is averred that by reason of 
 
 such words " discord arose between him and his wife, and they were likely 
 
 to have been divorced." 
 
 Barmund's Case, Cro. Jac. 473. 
 
 Halter v. Proume, Cro. Car. 436 ; 1 Roll. Abr. 397.
 
 c6 DEFAMATORY WORDS. 
 
 Tlie defendant told a married man that his wife was " a notorious liar " 
 and " an infamous wretch," and had been all but seduced by Dr. C. of 
 Roscommon before her marriage. The husband consequently refused to 
 live with her any longer. Held, no action lay. 
 
 Lyndi v. Knirjlit and wife, 9 H. L. C. 577 ; 8 Jur. N. S. 724 ; 
 5 L, T. 291. 
 Where the defendant asserted that a married woman was guilty of adul- 
 tery, and she was consequently expelled from the congregation and bible 
 society of her religious sect, and was thus prevented from obtaining a certi- 
 ficate, without which she could not become a member of any similar 
 society. Held, no action lay, 
 
 Roberts and mfe 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. 
 [It does not appear that the case as to excommunication, Barnabas v. 
 Traunter, 1 Vin. Abr. 396, ante, p. 59, was cited to the Court,] 
 
 The defendant falselj" imputed incontinence to a married woman. In 
 consequence of his words she lost the society and friendship of her neigh- 
 bours, and became seriously ill and unable to attend to her affairs and 
 business, and her husband incurred expense in curing her, and lost the 
 society and assistance of his wife in his domestic affairs. Held that neither 
 husband nor wife had any cause of action. 
 
 Allsop and wife v. Allso2y, 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 
 
 8 W. R. 449 ; 6 Jur. N. S. 433 ; 36 L. T. 0. S. 290. 
 Riding v. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 W. R. 
 487 ; 34 L. T. 500, 
 
 Our law on tliis point lias often been denounced by learned 
 Judges. " I may lament the unsatisfactory state of our law 
 according to wliicli the imputation by words however gross, on 
 an occasion however public, upon the cliastity of a modest 
 matron or a pure virgin, is not actionable without proof that it 
 has actually produced special temporal damage to her," says Lord 
 Campbell, L. C, in Lynch v. Knight and wife, 9 H. L. C. 593 ; 
 5 L. T. 291. "Instead of the word 'unsatisfactory' I should 
 substitute the word ' barbarous,' " says Lord Brougham, p. 594. 
 See also the remarks of Willes, C. J., in Jones v. Heme, 2 
 Wils. 87 ; and of Cockburn, C. J., Compton and Blackburn, JJ., 
 in Rohetis and iv'tfe v. Roberts, 5 B. i^ S. 384 ; 33 L. J. Q. B. 
 249 ; 10 Jur. N. S. 1027 ; 12 W. B. 909 ; 10 L. T. 602. 
 
 Two explanations may be assigned for the undesirable state 
 of our law on this point. (1.) In the days when our common 
 law was formed, every one was much more accustomed than
 
 WORDS IMPUTING UNCHASTITY. 87 
 
 they are at present to such gross language, and epithets such 
 as " whore " Avere freely used as general terms of abuse without 
 seriously imputing any specific act of unchastity. (2.) The 
 spiritual Courts had jurisdiction over such charges, and though 
 they could not award damages to the plaintiff, they could 
 punish the defendant for the benefit of his soul ; but all actions 
 in the ecclesiastical Courts for defamatory Avords were abolished 
 by the 18 »Sz; 19 Vict. c. 41, and no attempt was made to sub- 
 stitute any remedy in the ordinary courts of law. In Scotland 
 and in many of the States of America a verbal imputation of 
 unchastity is actionable without proof of special damage. 
 
 The hardship is increased by the rules relating to special 
 damage, which are peculiarly stringent in the case of a married 
 Avoman. That her husband has sustained special damage in 
 consequence of the Avords Avill not avail for her. And unless she 
 carry on a separate trade or business of her own under the 
 Married Women's Property Act, 1870, it is almost impossible for 
 her to sustain any special damage to herself, for all her property 
 is in laAV her husband's. That she loses the society of her friends 
 is no special damage ; and in Lynch v. Knight and ivife, 9 H. 
 L. C. 577, Lord Wensleydale denied that the loss of the con- 
 sortium of her husband could constitute special damage. The 
 only object of insisting on proof of special damage is to secur'e 
 that the plaintiff's reputation has in fact been seriously impaired. 
 And in many of these cases it is clear that this was so. What 
 more convincing proof of loss of reputation could be adduced 
 than the fact proved by Mrs. Roberts that she Avas expelled 
 from the congregation, and not alloAved to continue a member 
 of her religious sect. Yet in that case it Avas held no action lay. 
 Surely it is high time that some alteration should be made in 
 our law on this point. 
 
 All words, if published without lawful occasion, are 
 actionable, if they have in fact produced special damage 
 to the plaintii!, such as the law does not deem too 
 remote. "Any words by which a party has a special 
 damage " are actionable. (Comyn's Digest, Action upon 
 the Case for Defamation, D. 30.) "Undoubtedly all
 
 88 DEFAMATORY WORDS. 
 
 words arc actionable, if a special damage follows." (Per 
 Heatli, J., in Moore v. Meagher^ 1 Tannt. 44.) 
 
 It is usual to qualify the generality of the above rule by 
 adding a proviso, " provided the words themselves be in their 
 nature defamatory." But as "defamatory words" have at the 
 commencement of this chapter been defined as " words which in 
 any given case have appreciably injured the plaintiff's reputa- 
 tion," I do not like to use the phrase "words in their nature 
 defamatory," It is not defamatory to say of a pork butcher, 
 " he knows no law : he cannot draw a lease ; " it is defamatory 
 so to speak of a solicitor. You cannot therefore lay down a 
 'priori any hard and fast rule as to which words are in their 
 nature defamatory, and which are not so. Each case must 
 depend on its own circumstances. 
 
 No doubt in an action of defamation the words must be de- 
 famatory. If that be all that is meant by the above proviso, I 
 will gladly incorporate it into the above rule together with my 
 definition of words defamatory : when the rule would run 
 thus : — " All words, if published without lawful occasion, are 
 actionable, if it be proved, by evidence of special damage not 
 too remote, that they have in fact injured the plaintiff's re- 
 putation ; and in such cases the action is called an action of de- 
 famation " (using that phrase to include both libel and slander). 
 The converse of this rule will be "No words can be the subject 
 of an action of defamation, however maliciously published, and 
 although they have caused actual damage to the plaintiff, 
 unless it is also proved that the plaintiff's reputation has in 
 fact been thereby injured." 
 
 But though an action of defamation will not lie, it by no 
 means follows that some other action will not lie. Wherever a 
 defendant speaks words of whatever nature, maliciously in- 
 tending to do some injury to the plaintiff thereby, and the 
 words have their desired effect and do actually produce damage 
 to the plaintiff, here there is that actionable " concurrence 
 of loss and injury," spoken of by Lord Campbell, L. C, 
 in Lynch v. Knight and wife, 9 H. L. C. 589 ; and an 
 ordinary action on the case will lie, if not an action of libel 
 or slander.
 
 WORDS CAUSING SPECIAL DAMAGE. 89 
 
 The head-note in Kelly v. Partington, 5 B. & Ad. 045, is 
 the direct traverse of the above proposition : — " Held that the 
 words were not defamatory in their nature, and therefore not 
 actionable, even though followed by special damage." But 
 Kelly V. Partington is, if I may say so, a silly case. It turned 
 on a slip in the pleadings. The defendant said of the plaintiff, 
 "She secreted Is. Gc?. under the till," and then added signi- 
 ficantly "These are not times to be robbed." This was clearly 
 an insinuation of felony. Verdict for the plaintiff, damages l.s. 
 On taxation the master declined to allow the plaintiff more 
 costs than damages. The plaintiff's counsel, Sir John Camp- 
 bell, S. G., thereupon argued that the second count was not 
 actionable without proof of special damage ; and succeeded in 
 getting a rule for his costs. For it turned out that the pleader 
 had run the words together so that it appeared on the record 
 that the charge against the plaintiff was this : " She secreted 
 Is. Gc?. under the till ; stating, these are not times to be 
 robbed." There Avas no innuendo stating whose money it was, 
 but there was an allegation of special damage that in conse- 
 sequence one Stenning had refused to take the plaintiff into his 
 service. The Court was therefore pleased to take the Avords 
 as spoken in praise of the plaintiff, i.e., as importing merely 
 that the plaintiff exercised great caution and was very careful 
 of her own money, even of small amounts of it. Sir James 
 Scarlett took advantage of this flaw and succeeded in arresting 
 judgment. For it followed, of course, that Stenning's refusal to 
 take the plaintiff into his service, because the defendant had 
 praised her, was unreasonable, and not the natural or necessary 
 consequence of the defendant's words. And the only decision 
 in the case was that the special damage was too remote ; and 
 a very harsh decision this seems to be, in these days when 
 pleadings are so easily amended. The Solicitor General could not 
 now go back and argue that the words amounted to a charge 
 of felony and were actionable per 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 argument 
 with v/hich the Court appeared much amused. Littledale, J.,
 
 90 DEFAMATORY WORDS, 
 
 puts him a case (p. G48), " 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 words 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 compelled to adopt. He would 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 daTnnuin et injuria. 
 Lord Denman's judgment, be it observed, turned almost en- 
 tirely on the absence of any innuendo ; that of Taunton, J., on 
 the remoteness of the damage ; while Littledale and Patte- 
 son, J J., 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 disseminate a report, false to my know- 
 ledge, 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 Avords are not in their 
 nature defamatory ; for many, I understand, glory in such titles. 
 This decision (or dictum) in Kelly v. Partington, was approved 
 and adopted in Sheahan v. Ahearne, 9 Ir. Rep. C. L. 412 
 (1875). But there, too, this was not the real ground of the 
 judgment of the Court ; their decision turned on a variance be- 
 tween 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 con- 
 sider the question which was suggested on the argument,
 
 WORDS CAUSING SPECIAL DAMAGE. 91 
 
 whether words not in themselves actionable or defamatory, 
 spoken under circumstances and to persons likely to create 
 damage to the subject of the words, are, when the damage 
 follows, ground of action. The judgment of Lord Wen sleydale 
 in Lynch v. Knight and luife, 9 H. L. C. 600, appears in favour 
 of the affirmative of this question. But it is not necessary for 
 us, for the reasons given, to express any opinion upon it." 
 Again, in Western Counties Manure^Co.\v. Latues Chemical 
 Manure Co., L. R 9 Exch. 223 ; 43 L. J. Ex. 171 ; Pollock, 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 Riding 
 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 
 Avas 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 de- 
 famatory 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 state- 
 ment 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 statement 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 Levet's case, Cro, Eliz. 289, ante, p. 77 ; 
 and Green v. Button, 2 C. M. & R. 707, yost, p. 149. 
 
 I conclude, therefore, that if a defendant either knows or
 
 92 DEFAMATORY WORDS. 
 
 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 Avill lie against him for such damage, what- 
 ever be the nature of the words. 
 
 I
 
 CHAPTER III. 
 
 CONSTRUCTION AND CERTAINTY. 
 
 Construction is tlie 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. He may have 
 spoken "without any intention of injuring the plaintiff's 
 reputation, but if he has in fact done so, he must com- 
 pensate the plaintiff. He may have meant one thing 
 and said another : if so, he is answerable for so in- 
 adequately expressing his meaning. Or he may have 
 used ambiguous language which to his mind was harm- 
 less, 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 ow^n mind 
 is immaterial, save in so far as his hearers could 
 • perceive it at the time. Words cannot be construed 
 according to the secret intent of the speaker. [Hanlcinson 
 V. 7?/%, 16 M. & W. 445 ; 2 C. & K. 440.) 
 
 The question is always: How would ordinary English- 
 men, previously unacquainted A\ith the matter, fairly 
 understand the words ? We must assume that they 
 give to ordinary English Avords theii- ordinary English 
 , meaning, to local or technical phrases their local and 
 j technical meaning. That being done, what meaning
 
 94 CONSTRUCTION AND CERTAINTY. 
 
 would tlie whole passage convey to an unbiassed 
 mind? 
 
 This is clearly rather a question for the jury than for 
 the judge. And accordingly by the 32 Geo. 3, 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 the same [Baylis v. Lcmrence^ 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 nonsiut. 
 "It is only when the judge is satisfied that the publica- 
 tion cannot be a libel, and that, if it is found by the jmy 
 to be such, their verdict will be set aside, 'that he is 
 justified in withdi-awing the question fi'om their cogni- 
 zance." {Per Kelly, C. B., L. E. 4 Exch. 288 ; and see 
 Fray v. Fray, 17 C. B. N. S. 603 ; 31 L. J. C. P. 45 ; 
 10 Jiu'. N. S. 1153 ; Teacy v. McEenna, Ir. E. 4 C. L. 
 374 ; Hunt v. Goodlake, 43 L. J. C. P. 54 ; 29 L. T. 
 472.) 
 
 If, however, the judge considers that words are 
 reasonably susceptible 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 ordi- 
 nary Englishmen who heard or read them without any 
 previous knowledge of the cii'cumstances to which they 
 relate. {Hankinson v. Bilhy, 16 M. & W. 442 ; 2 C. & 
 K. 440.) The judge is in no way bound to state to the 
 jury his o^^l opinion on the point ; it would, in fact, be 
 ■wi'ong for him to lay do^ra as a matter of law, that the 
 publication complained of was, or was not, a libel. 
 (Baylis v. Lawrence, 11 A. k E. 920.) The proper coiu'se 
 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 pubHca-
 
 CONSTRUCTION. 95 
 
 tion in question falls within that definition. {Parmiter 
 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 distiu'b 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 innuendo, and 
 the judge thinks 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 cii'cumstances 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 by- 
 standers ; and then it is for the jury to say what 
 meaning such words would fairly have conveyed to their 
 mmds. 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 
 jf the record, to give the words an innocent construction. For it 
 vvas said to be a maxim that words were to be taken in mitiori 
 icnsu, whenever there Avere two senses in which they could be 
 aken. And in these early times the Courts thought it their
 
 96 CONSTRUCTION AND CERTAINTY. 
 
 duty to discourage actions of 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 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 defendant, the Court entered judgment for the 
 plaintiff 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. 74G ; 
 now overruled by Stamp and wife v. White and tvlfe, 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 Chancery was on 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. Broivn, 3 Inst. 167 ; 1 Roll. 
 Abr. 70, For further instances of such refinements, see Peake 
 V. Pollard, Cro. Eliz, 214 ; Cox v. Humplivcy, ib. 889 ; and 
 Holland V. Stoner, Cro. Jac. 315. 
 
 But in the days of Charles II., the Court of Common Pleas 
 decided in a case of scandalum magnatimi {Lord Toiunshend 
 V. Dr. Hughes, 2 Mod, 159) that " \vords should not be con- 
 strued either in a rigid or mild sense, but according to the 
 general and natural meaning, and agreeable to the common 
 understanding of all men." And this decision soon became 
 law. See Somers v. House, Holt 39 ; and Bwrges v. Bracher, 
 8 Mod. 238, In 1722, Fortescue, J,, declared in Button v, 
 Hayivard et ux., 8 Mod, 24 : — " The maxim fur expounding 
 words in mitiori sensu, has for a great while been exploded, 
 near fifty or sixty years." In Peake v. Oldham, Cowper, 277, 8, 
 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 niigiit be barely possible for these words to have 
 been spoken by the defendant, without meaning to charge the 
 plaiutitF with being guilty of murder ? Certainly not. Where
 
 NATURAL CONSTRUCTION. 97 
 
 it is clear that words are defectively laid, a verdict will not cure 
 them. But where, from their general import, they appear to 
 have been spoken with a view to defame a party, the Court 
 ought not to be industriuus 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 Harrison v. Thornhorough, 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 spoken will 
 be sure to understand them." See also the remarks of De 
 Grey, C.J., in R. v. Home, 2 Cowp. 682—689 ; of Buller, J., 
 in R. V. Watson and others, 2 T. R. 206 ; and the judgments 
 in Woolnoth v. Meadoivs, 5 East, 463 ; 2 Smith, 28. 
 
 And such is now the law. The Courts no longer strain to find 
 an innocent meaning for words i^rinid 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 practice 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 seusu 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 examination which the
 
 98 CONSTRUCTION AND CERTAINTY. 
 
 words will receive in a coui't 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 elegant and refined diction. {R. 
 V. Edgar, 2 Sess. Cas. 29 ; 5 Eac. Abr. 199.) The in- 
 sinuation may be indirect, and the allusion obscin-e ; it 
 may be put as a question or as an "on dit"; the lan- 
 guage may be ironical, figurative, or allegorical. Still, 
 if there be a meaning in the Avords at all, the Court will 
 find it out, even though it be disguised in a riddle or in 
 hieroglyphics. In all such cases it will be a question 
 for the juiy what meaning would the bystanders put 
 upon the words. 
 
 And before answering that question the jiuy should 
 well weigh all the circumstances of the case, the occasion 
 of speaking, the relationship) between the parties, &c. 
 Especially they should consider the words as a whole, 
 not dwelling on isolated passages, but giving its proper 
 weight to every part. 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, Avhere, without it, he would 
 have had a perfect answer to the action. So, too, a 
 word added at tlic 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 
 jmrt of plaintiff's case. {CooJce v. Hughes, E. & M. 112.) 
 And for the piu^pose of showing that the publication is 
 no libel, the defendant in his turn may give in evidence 
 other passages in the same publication plainly referring 
 to the subject of the libel, and faiily connected with it, 
 in order to prove that his intention was not such as was 
 imputed to him, and that the expressions in dispute
 
 AMBIGUOUS LANGUAGE. 99 
 
 will not bear the construction sought to be given them. 
 {E. Y. Lambert and Fen-f/, 2 Camp. 400 ; 31 HoAvell St. Tr. 
 340.) But according to Pollock, C.B., m Darby v. Ouseley^ 
 25 L. J. Ex. 229 ; 1 n. & N. 1 ; 2 Jur. N. S. 497, it is 
 essential that such other passages should be connected with, 
 construe, modify, control, qualify, or explain the alleged 
 libellous statements, and be entii'ely relevant to them. 
 
 So, too, with a slander ; very often the words imme- 
 diately preceding or following may much modify those 
 relied on by the plaintiff. [Bittridge's case, 4 Eep. 19 ; 
 Thomson v. Bernard, 1 Camp. 48.) Evidence may even 
 be given of other libels or slanders published by the 
 defendant of the plaintiff, when the language sued on is 
 ambiguous, and some extrinsic evidence is necessary to 
 explain it ; but such evidence is not admissible where 
 the meaning of the words is clear and undisputed. 
 {Stuart Y. Lovelt, 2 Stark. 93; Pearce v. Ornsbij, 1 M. & 
 Eob. 455 ; Symmons v. BlaJce, ib. 477 ; 2 C. M. & E. 
 416 ; 4 D. P. C. 263 ; 1 Gale, 182 ; Trailt v. Dcnham, 
 Times for May 4th, 1880.) And Avhen such evidence is 
 admitted, the jury should always be cautioned not to 
 give any damages in respect of it. [Per Tiudal, C.J., in 
 Pearson v. Lemaitrc, 5 M. & Gr. 720 ; 12 L. J. Q. 13. 
 253; 7 Jur. 748 ; 6 Scott, K. E. 607.) 
 
 Illiistratioiis. 
 
 The Observer gcave a correct account of some proceedings in the Insolvent 
 Debtors' Court, but it was lieaded " Shameful Conduct of an Attorney." 
 The rest of the report was hekl privileged ; but the plaintilf recovered 
 damages for the heading. 
 
 Clement v. Leivis, 3 Br. & B. 297; 7 Moore, 200 ; 3 B. & Aid. 702. 
 
 And see Mountney v. TFatton, 2 B. & Ad. G73. 
 
 Bishoj) V. Latimer, 4 L. T. 775. 
 
 TJoydell v. Jones AM. & W. 446 ; 7 D. P. C. 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. 
 t^treet v. Licensed Victnalkrs Socielii, 22 W. E. 553. 
 Stunleij V. IVehh, 4 Sandf (N. Y.) 21. 
 
 H 2
 
 loo CONSTRUCTION AND CERTAINTY. 
 
 An action was brou;j,lit for an alleged libel, published in the True Sun 
 newspaper : — " Riot at Preston. — Froni the Liverpool Courier. — It appears 
 that Hunt pointed out Cou.nsellor Seager to the mob, and said, ' There is 
 one of the Mack sheep.' The mob fell ujjou 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" contended 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 paragraj^h, 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 liJbel. Verdict for the plaintiff. Damages, one 
 farthing. 
 
 Huntv. AIgar,() C. & P. 245. 
 
 Of the Innuendo. 
 
 In arriving at the meaning of tlio dofendant's words, 
 the Court and jury are often materially assisted by an 
 averment in the plaintiff'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 endeavoui- to induce the jiuy 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 j)leader 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 
 injurious meaning of the defendant's words ; and such 
 innuendo must distinctly aver that the words bear a 
 specific actionable meaning. [Cox v. Cooper ^ 12 W. E. 
 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
 
 INNUENDO. loi 
 
 liow 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 natiu-al 
 meaning of words. It must not put upon the defendant's 
 words a construction which they will not bear. If the 
 words are incapable of the meaning ascribed to them by 
 the innuendo, and are p'trnd fade not actionable, the 
 declaration will be held bad on demurrer ; or if there be 
 no demuiTer, the judge at the trial will stop the case. 
 If, however, the C^ourt or the judge think the words are 
 capahle of the meaning ascribed to them, however im- 
 probable it may appear that they were in fact so under- 
 stood, then it must be left to the jury to say whether 
 such is or is not theii* true meaning. {^Huntx. GoodlaJce., 
 43 L. J. C. P. 54 ; 29 L. T. 472 ; Broome v. Gosden, 1 
 C. B. 728.) 
 
 An innuendo now requires no prefatory averment to 
 support it. (Common Law Procedm^e Act, 1852, s. 61.) 
 The libel or slander sued on must of course be set out 
 vcrhatim in the Statement of Claim. {Harris v. Warre, 
 4 C. P. D. 125 ; 48 L. J. C. P. 310 ; 27 W. E. 4G1 ; 40 
 L. T. 429.) The innuendo usuallj^ follows it immediately. 
 And such a declaration is to be considered as two counts 
 under the old system of pleading, one with an innuendo 
 and one without. And if the j^laintiff can show a good 
 cause of action, either with or without the alleged mean- 
 ing, his statement of claim will be sufficient. (Per 
 Blackburn, J., in Watlrin v. Ilall, L. E. 3 Q. B. 402 ; 37 
 L. J. Q. B. 125 ; 10 W. E. 857 ; 18 L. T. 5G1.) 
 
 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 Avords, 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
 
 102 CONSTRUCTION AND CERTAINTY. 
 
 ■with or without the alleged meaning. It will then be 
 for the jury to say whether the plaintiff's construction of 
 the Avords is borne out by the evidence. If not, the 
 plaintiff may fall back upon the words themselves, and 
 lu'ge that, taken in their natural and obvious significa- 
 tion, they are actionable ijcr se without the alleged 
 meaning, and that therefore his unproved innuendo 
 may be rejected as sm-plusage. [Harvey v. French^ 1 
 Cr. & M. 11 ; 2 M. & Scott, 591 ; 2 Tp-w. 585.) But 
 he cannot at the close of the trial resort to another con- 
 struction of the words different both fi'om theu* lyrima 
 facie meaning and from that pointed by the innuendo ; 
 if he win a verdict in this wa}", the Court will grant a 
 new trial on the ground of surprise. [Hunter v. Hharpe^ 
 4 F. & F. 983 ; 15 L. T. 421 ; Faiel v. Tatnell, 29 W. E. 
 172 ; 43 L. T. 507.) The plaintiff 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. If the jmy negative his innuendo, and 
 the words are not actionable in theii- natural and primary 
 sense, judgment must be for the defendant. {Brcmhridge 
 V. Latimer, 12 W. E. 878; 10 L. T. 816; 3Iaguire v. 
 Knox, 5 Ir. C. L. E. 408.) 
 
 Illustrations. 
 "He liath 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, But 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. Alir. 82. 
 
 Holt v. Schokficld, 6 T. R. 691. 
 A libel alleged that n gentleman was on a certain night hocussed and 
 robbed of ^40, in the ^)hiintiff's public-house. An innuendo " meaning 
 thereby that the said puljlic-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. Gosden, 1 C. B. 728. 
 
 Clarke's Case dc Dorchester (1619), 2 RoUe's Rep. 136.
 
 INNUENDO. 
 
 103 
 
 " There is strong reason for believing that a considerable sum of money- 
 was transferred by power of attorney obtained by undue intluence;" an 
 iimuendo " meaning as a fact that the plaintilT had by undue influence pro- 
 cured the money to be transferred," was held not too wide ; for such would 
 be the meaning conveyed to readers by the defendant's insinuation. 
 
 Turner v. Mery^veaiher, 7 C. B. 251 ; 18 L. J. C. P. 155 ; 13 
 
 Jur. 683 ; 19 L. J, C. P. 10. 
 IVilliams v. Gardiner, 1 M. & W. 245 ; 1 Tyrw. & Gr. 578. 
 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 in- 
 sinuate 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 plaintifl:". 
 
 Clegcj V. Laffer, 3 Moore & Sc. 727 ; 10 Bing. 250. 
 The defendant said, " Master Barham did burn my barn with his owai 
 hands, and none but he." At that date it was not felony to burn a barn, 
 unless it were either full of corn or parcel of a mansion-house. An in- 
 nuendo, " a barn full of corn," was held too wide. " That is not," says 
 De Grey, C. J., commenting on this case in Co^\'p. 684, "an explanation of 
 what was said Ijefore, 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 plaintifl' ; an innuendo of its being the barn full of corii 
 would have been good. For by coupling the innuendo in the libel with 
 the introductory averment, ' his Ijarn full of corn,' it would have made it 
 compleat." 
 
 Barliani's Case, 4 Rep. 20 : Yelv. 21. 
 
 See Capital and Counties Bank v. Hentij and Sons, 28 W. R. 490 ; 
 5 C. P. D. 514 ; 49 L. J. C. P. 830 ; 42 L. T. 314 ; (C. A.) 
 28 W. R. 851. 
 Words complained of : — "He is a regular prover under bankruptcies." 
 An innuendo, " the defendant meaning thereby that the plaintiff liad proved 
 and was in the habit of proving fictitious debts against the estates of bank- 
 rupts, 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. 
 
 Anr/le V. Alexander, 7 Bing. 119 ; 1 Or. & J. 143; 1 Tyrw. 9 ; 4 
 M. & P. 870, ante, p. 78. 
 The alleged libel was as follows : — " Notice,— any person giving informa- 
 tion where any property may be found belonging to H. G. (meaning the 
 plaintifl), 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, l)y applying at Mr. L.," &c. Innuendo, that the plaintiff had 
 been and Avas guilty of concealing his property with a fraudulent and 
 unlawful intention. Held, on general demurrer, that the innuendo, unsup-
 
 I04 CONSTRUCTION AND CERTAINTY. 
 
 ported Ly any prefatory averment, was too large ; and that the words, in 
 themselves, were not actionable. 
 
 Gomiwriz v. Levy, 9 A. & E. 282 ; 2 Jur. 1013 ; 1 P. & D. 214 ; 
 
 1 W. W. & H. 728. 
 Wheeler v. Raynes, 9 A. & E. 286, note ; 1 W. W. & H. 645 ; 1 
 
 P. & D. 55. 
 Ciupel and others v. Jones, 4 C. B. 259 ; 11 Jur. 396. 
 Day V. RoUnson, 1 A. & E. 554 ; 4 N. & M. 884. 
 Adams v. Meredeiv, 2 Y. & J. 417 ; 3 Y. & J. 219. 
 But all tliese 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. 252 ; 4 Jur. 
 N. S. 834. 
 An information was filed against a Nonconformist minister for a libel 
 upon "the bishops" contained in a book, called "A Paraphrase upon the 
 New Testament." An innuendo, " the bishops of Eiigland," was held to 
 be allowable, if from the nature of the libel this was clearly what was 
 meant. 
 
 R. V. Baxter (1685), 3 Mod. 69. 
 The libel accused a gentleman of saying, " He could see no probability of 
 the war'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 with- 
 out any innuendo. 
 
 Anon. (1707), 11 Mod. 99. 
 R. V. Mattheios (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. TutcMn (1704), 14 How. St. Tr. 1095 ; 5 St. Tr. 527 ; 2 
 
 Ld. Eaym. 1061 ; Salk. 50 ; 6 Mod. 268. 
 R. V. Home (1777), Cowp. 672 ; 11 St. Tr. 264 ; 20 How. St. 
 Tr. 651. 
 
 Words may be : — 
 
 (1) obviously defamatory ; 
 
 (2) ambiguous: that is, words wliich, though ^7r/;«a 
 facie defamatory, are still on the face of them 
 suscejitible of an innocent meaning ; 
 
 (3) neutral; i.e., words Avhich are meaningless till 
 
 some explanation is given ; such are slang 
 expressions, words in a foreign language, words 
 used in some special, local, technical, or custo- 
 mary sense. ;
 
 WORDS CLEARLY DEFAMATORY. 105 
 
 (4) prima facie innocent ; but capable of a de- 
 
 famatory meaning"; 
 
 (5) Obviously innocent ; words wliich cannot be 
 
 construed so as to convey any imputation on 
 tlie plaintiff. 
 To these different classes of words special rules of 
 pleading, evidence, and construction apply. 
 
 1. Words ohviouslij defamatorij. 
 Here no innuendo is necessary. ISTo parol evidence is 
 admissible at the trial to explain the meaning of the 
 words. The judge will direct the jury as a matter of law 
 that the words arc actionable, and that they must find for 
 the plaintiff. 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. Should the jury perversely re- 
 fuse 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 thatihe words were not 
 used in their ordinary signification. He may thus take the 
 words out of this class into class 2, words 'jyrhmt facie defama- 
 tory. It will then be a question for the jury how the by- 
 standers understood the words. But such question only arises 
 where the words are susceptible of the innocent meaning which 
 the defendant seeks to place on them, and where also the cir- 
 cumstances which qualify the injurious words were known to 
 the bystanders at the time. 
 
 Illustrations. 
 
 It is libellous, without any innuendo, to write and publisli tliat a news- 
 paper has a separate page devoted to the advertisements of usurers and 
 quack 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 in- 
 nuendo as " meaning thereby that the plaintilF's paper was an ill-conducted 
 and low-class journal." 
 
 Rvssdl and another v. Webster, 23 W. R. 59.
 
 io6 CONSTRUCTION AND CERTAINTY. 
 
 Where a libel called tlie plaintiff a " truckm aster," and the defendant 
 justified ; but no evidence Avas given at the trial as to the meaning of the 
 word ; the Coiut 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, tlicie being a statute called " The Truck Act." 
 
 Homer v. Taunton, 5 H. & N. 661 ; 29 L. J. Ex. 318 ; 8 W. R. 
 499 ; 2 L. T. 512. 
 To write and publish that a certain woman is a prostitute, and that " she 
 is, I understand, under the patronage or protection of " the plaintiff, was 
 held actionable in the Court of Appeals in New York, although there was 
 no innuendo averring that she was under the plaintiff's protection for 
 immoral purposes. 
 
 More V. Bennett (1872), 48 N. Y. R. (3 Sickel), 472 ; 
 reversing the judgment of the Supreme Court below, reported, 33 How. Pr. 
 R. 180 ; 48 Barbour, N. Y. 229. 
 
 It is libellous to ^vl'ite and publish these words : — " Threatening letters. 
 The Middlesex grand jury have returned a true bill against a gentleman of 
 some property named French." And no innuendo is necessary to explain 
 the meaning of the Avords ; for they can only import that the grand jmy 
 had found a true bill against French for the misdemeanour of sending 
 threatening letters. 
 
 Harrcy v. Freneh, 1 Cr. & M. 11 ; 2 M. & Scott, 591 ; 2 Tyrw. 
 585. 
 Allegorical terms of well-known import are libellous i)cr se, without in- 
 nuendoes to explain their meaning ; e.g., imputing to a person the qualities 
 of the " frozen snake," or calling him " Judas." 
 
 Hoare v. SikerlocJc (No. 1, 1848), 12 Q. B. 624 ; 17 L. J. Q. B. 
 306 ; 12 Jur. 695. 
 Words comj^lained of :— " Thou art a thief : " no innuendo at all is neces- 
 sary, as larceny is clearly imi:)uted. 
 
 Blumley v. Rose, 1 Roll. Abr. 73. 
 Sloinncm v. Dutton, 10 Bing. 402. 
 If the words can be understood as imputing an indictal)le offence, no 
 innuendo is necessar3^ And, if it were, an innuendo, " meaning thereby 
 that the j^haintiff had been guilty of an indictable offence," is sufficient 
 without specifying what particular indictable offence is meant. 
 Kinnahan v. McCullagli, Ir. R. 11 C. L. 1. 
 Saunders v. Edioarcls, Sid. 95. 
 Francis v. Boose, 3 M. & W. 191 ; 1 H. & H. 36. 
 To say, " He robbed John White," is primu facie clearly actionable. But 
 the defendant may show, if he can, that that is not the sense in which 
 they were fairly understood by bystanders who listened to the whole conver- 
 sation, thougli previously iinaccpiainted with the matter to which the words 
 sued on relate. 
 
 Tomlinson v. Brittlehanl; 4 B. & Adol. 630 ; 1 Nev. & Man. 
 
 455. 
 Hankinson v. Bilby, 16 M. & W. 442 ; 2 C. & K. 440. 
 Martin v. Loei, 2 F. & F. 654.
 
 WORDS PRIMA FACIE DEFAMATORY. 107 
 
 2. Words prima facie defamatory. 
 
 Hero, too, no inuuenclo is necessary, and no parol 
 evidence is admissible at tlie trial to explain the mean- 
 ing of the words. The judge will direct the jury that 
 the words are p'lma facie actionable. 
 
 But the defendant may plead cii'cumstances which 
 made it clear at the time that the w^ords were not used 
 by him in their ordinary 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 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 Avhether they do put on the 
 words a coloui' different from what they would pimd 
 facie bear. It is generally difficult, however, to induce 
 the jury to adopt the defendant's harmless view of his 
 own language. 
 
 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. [HanJdnson 
 V. Bilhjj, 16 M. & W. 445 ; 2 C. & K. 440.) 
 
 The defendant is allowed thus to give evidence of all " the 
 surrounding circumstances," in order to place the jury so far as 
 possible in tlie position of bystanders, that they may judge how 
 the words would be understood on tlie 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 in- 
 admissible. A witness cannot be called to say "/ should not
 
 io8 CONSTRUCTION AND CERTAINTY. 
 
 Lave understood defendant to make any imputation whatever 
 on the plaintiff." The jury know what ordinary English means, 
 and need no witness to inform them. 
 
 The leading case on tliis point is one cited in the Lord 
 CromiueU's 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 con- 
 cerning 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 sensvs vei-horum ex causa dicendi accipiendus est 
 et sermones semper accipiendi sunt secundum suhjectaon. . . . 
 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 quoi ad ununi 
 UneTYi loquuta sunt, non debent ad alium detorqueri : and, 
 therefore, in the said case of murder, the Court held the justi- 
 fication good ; and that the defendant should never be put to 
 the general issue, when he confesses the words and justifies 
 them, or confesses the words, and by special matter shows that 
 they are not actionable." 
 
 Illustrations. 
 
 Words complained of: — " You stole my apples." Tlie defendant cannot 
 be allowed to state that lie only meant to say, " Yon have tortiously removed 
 my apples under an unfounded claim of right." The bystanders could not 
 possibly have understood from the word used that a civil trespass only was 
 imputed. 
 
 Dcrerill v. Ilulhert (.Jan. 25th, 1878), ex relatione med. 
 But where the words complained of are, " Thou art a thief ; for thou 
 tookest my beasts by reason of an execution, and I will hang thee," no 
 action lies, for it is clear that tlie whole sentence taken together imports 
 only a charge of trespass. 
 
 WiWs Case, 1 Roll. Abr. 51. 
 Sibley v. Tomlin?, 4 Tyrw. 90.
 
 NEUTRAL WORDS. 109 
 
 Where words are used which clearly import a criminal charge (as, " Yo\x 
 thief," or " You traitor,") it is still open to the defendant to show if he can 
 that he used them merely as vague terms of general abuse, and that the 
 bystanders must have understood him as meaning nothing more than " You 
 rascal," or "You scoundrel." When such words occur in a string of non- 
 actionable epithets, or in a torrent of general vulgar abuse, the jury may 
 reasonably infer that no felony was seriously imputed. If, however, the 
 jury put the harsher construction on defendant's language, no new trial will 
 be granted ; for it is a question entirely for them . 
 
 Minors v. Leeford, Cro. Jac. 114. 
 
 Smith V. JFard, Cro. Jac. 674. 
 
 Penfold V. JFestcofe, 2 Bos. & P. N. R. 335. 
 Where the defendant said to the plaintiff in the presence of others, "You 
 are a thief, a rogue, and a swindler," it was held that tlie defendant could 
 not call a witness to explain the particular transaction which he had in his 
 mind at the time, since he did not in any way expressly refer to it in the 
 presence of his hearers. 
 
 Martin v. Loe'i, 2 F. & F. 654. 
 
 Eead v. Ambridge, 6 C. & P. 308. 
 
 HanUnson v. Bilhy, 16 M. & W. 442 ; 2 C. & K. 440. 
 But where the defendant said : — " Thomson is a damned thief ; and so 
 was his father before him, and I can prove it ; " but added, " Thomson 
 received the earnings of the ship, and ought to pay the wages," Lord 
 Ellenborough held that the latter words qualified the former and showed 
 no felony was imputed ; the person to whom the words were spoken 
 being the master of the ship and acquainted with all the circumstances 
 referred to. 
 
 Thomson v. Bernard, 1 Camp. 48. 
 
 Bittridge's Case, 4 Rep. 19. 
 
 Cristie v. Coivell, Peake, 4. 
 
 Day V. Robinson, 1 A. & E. 554 ; 4 N. & M. 884. 
 
 3. Neutral Words. 
 
 Where the defendant has used only ordinary English 
 words, the judge can decide at once whether they m^Qprimd 
 facie actionable or not. But where the words are in a 
 foreign language, or are technical or provincial terms, an 
 innuendo is absolutely necessary to disclose an actionable 
 meaning. So, too, an innuendo is essential where ordi- 
 nary English words are not in the particular instance 
 used in theii- ordinary English signification, but in some 
 peculiar sense. 
 
 Where the Avords are spoken iu a foreign language
 
 no CONSTRUCTION AND CERTAINTY. 
 
 the original words should be set out in the Statement of 
 Claim, and then an exact translation should be added. 
 {ZenoUo v. Axtell, 6 T. E. 1G2 ; 3 M. & S. 116.) In the 
 case of slander an averment was formerly requii'ed to the 
 effect that those who were present imderstood that lan- 
 guage. (Fleetwoods. Curl, Cro. Jac. 557; Hob. 268.) And 
 though such an averment is no longer necessary, the fact 
 must still be proved at the trial. For if words be spoken 
 in a tongue altogether unknown to the hearers, no action 
 lies [Jones v. Drivers (vel Dcmlces) (1597), Cro. Eliz. 
 496 ; 1 EoU. Abr. 74) ; for no injury is done to the 
 plaintiff's reputation. But if a single bystander imder- 
 stood them, that is enough. Where, however, the words 
 are spoken in the A'ornacular of the place of publication 
 (as "Welsh words spoken in Wales) it will be presumed 
 that the bystanders understood them. At the trial the 
 correctness of the translation must be proved by a sworn 
 interpreter. 
 
 So at the trial whenever the words used are not ordi- 
 nary English, but local, technical, provincial, or obsolete 
 expressions, or slang or cant terms, evidence is admissible 
 to explain their meaning, provided such meaning has 
 been properly alleged in the Statement of Claim. Eut 
 when the words are well-known and perfectly intelligible 
 English, the Court will give them theii" ordinary English 
 meaning, unless it is in some way shown that that mean- 
 ing is inapplicable. This may aj^jiear from the words 
 themselves ; for in some cases to give them theii- ordi- 
 nary English meaning would make nonsense of them. 
 But if in their ordinary English mcanmg the words 
 would be intelligible, facts must be given in evidence to 
 show that they may have been used in a particular sense 
 on this particular occasion. After that has been done a 
 bystander may be asked, " What did you understand by 
 the expression used?" But without such a foundation
 
 UNMEANING WORDS. iii 
 
 being first laid, the question is not allowable. [Daines 
 V. Hartlefj, 3 Excli. 200 ; 18 L. J. Ex. 81 ; 12 Jur. 
 1093.) 
 
 Illustrations. 
 
 Words complained of : — "You are a bunter." No ianuendo : Willes, J., 
 nonsuited the plaintiff, on the ground that the word had no meaning at all, 
 and could not therefore be defamatory in ordinary acceptation ; and he 
 refused to allow the plaintiff to be asked, what the word " bunter " meant. 
 Aliter, had there been an innuendo averring a defamatory sense to the word 
 "bunter." 
 
 Eawlincjs et ux. v. Xorhurij, 1 F. & F. 341. 
 Words spoken to an attorney : — "Thou art a daffidowudilly." Innuendo, 
 meaning thereby that he is an "ambidexter," i.e., one who takes a fee from 
 both sides, and betrays the secrets of his client. Held that an action lay ; 
 1 RoU. Abr. 55. 
 
 Annison v. Blojidd, Carter, 21-i ; 1 Roll. Abr. 55. 
 It is actionable to say of a stockjobber that, "He is a lame duck;" 
 innuendo, "meaning thereby that the plaintiff had not fulfilled his contracts 
 in respect of the said stocks and fmids," (stockjobbing being now legalised 
 by the 23 & 24 Vict. c. 28). 
 
 Morris and Langdcde, 2 Bos. & Pull. 284. 
 The word " Welcher " requires an innuendo to explain its meaning. 
 
 Blackmail v. Bryant, 27 L. T. 491. 
 The defendant charged the plaintiff, a pawnbroker and silversmith, 
 with the unfair and dishonourable practice of '•' duffing ; " innuendo, 
 furbishing up damaged goods and pledging them with other pawnbrokers 
 as new. 
 
 Hicldnhothamx. Leach, 10 M. & W. 361 ; 2 Dowl. N. S. 270. 
 The words, " He is mainsworn," were spoken in one of the northern 
 counties where "mainsworn" is equivalent to "perjured," (forsworn with 
 liis hand on the book). Held actionable. 
 Slater v. Franks, Hob. 126. 
 
 And see Coles v. Haveland, Cro. Eliz. 250 ; Hob. 12. 
 A. and B. were partners, and were conversing with the -defendant. A. 
 said they held some bills on the plaintiff's firm ; the defendant said : — 
 " You must look out shai-p that they are met by them." At the trial, B. 
 was called as a witness, and stated these facts. The counsel for the plaintiff 
 tlien proposed to ask B. : — " What did you understand by that ? " But 
 the question was objected to, and disallowed by the judge (Pollock, C. B.) 
 in that form, and the counsel would put it in no other shape. The jury 
 found a verdict for the defendant ; and the Court of Exchequer refused to 
 grant a new trial. 
 
 Daincs and another v. Hartley, 3 Exch. 200 ; 18 L. J, Ex. 81 ; 
 12 Jur. 1093. 
 The defendant, the editor of a newspaper, owed plaintiff money under an
 
 112 CONSTRUCT/ON AND CERTAINTY. 
 
 award ; ^ancl wrote and j)ublished in his newspaper these words : — " The 
 money will be Ibrthcuiuing on the last day allowed by the award, but 
 we are not disposed to allow him to put it into "Wall-street for shaving 
 purposes before that period." " Shaving " in New York means, (i.) dis- 
 counting bills or notes ; ' (ii.) fleecing men of their goods or money by 
 overreaching, extortion, and oppression. The declaration contained no 
 innuendo alleging that the words were used in the second defamatory 
 sense. Held no libel, on demurrer. 
 
 Stone V. Coojyer (1845), 2 Denio (X. Y.), 293. 
 
 4. Words prima facie innocent, hut capable of 
 a defamatory meaning. 
 
 "WHiereyor the defendant's words are capable both of a 
 harmless and an injnrions meaning, it will be a question 
 for the jnr}" to decide which meaning the hearers or 
 readers would on the occasion in question have reason- 
 ably given to the words. Here an innuendo is essential 
 to show the latent injurious meaning. Without an 
 innuendo, there would be no cause of action shown on 
 the record. And such innuendo should be carefully 
 drafted ; for on it the plaintiff must take his stand at 
 the trial. He cannot during the course of the case 
 adopt a fresh construction. He may, it is true, fall 
 back on the natural and obvious meaning of the words : 
 but that we assume here not to be actionable. And 
 such innuendo must be specific ; it must distinctly aver 
 a definite actionable meaning. A general averment, 
 such as, "using the words in a defamatory sense," or 
 "for the purpose of creating an impression imfavourable 
 to the plaintiff," would be insufficient. {Coxx. Cooper., 
 12 W. E. 75 ; 9 L. T. 329.) 
 
 The words, too, must be reasonably susceptible of the 
 defamatory meaning put upon them by the innuendo, or 
 the Statement of Claim will be demurrable ; or if there 
 be no demurrer, the judge at the trial should stop the
 
 WORDS PRIMA FACIE INNOCENT. 113 
 
 case. In fact the words in that case belong rather to 
 Class 5, for they arc incapable of a defamatory meaning. 
 
 If, however, the words, though prima facie innocent, 
 are reasonably susceptible of a defamatory meaning, then 
 it is a question for tlie jury in which meaning would 
 bystanders or readers have reasonably understood them. 
 In such a case, if the defendant demurs to the Statement 
 of Claim, his demurrer will be overruled (Jenner and 
 another v. A' Beckett, L. E. 7 Q. B. 11 ; 41 L. J. Q. B. 14; 
 20 W. E. 181 ; 25 L. T. 464); if the judge at the trial 
 nonsuits the plaintiff, the Court will order a new trial. 
 {Hart and another v. Wall, 2 C. P. D. 146 ; 46 L. J. C. P. 
 227 ; 25 W. E. 373.) 
 
 When it is clear that the words complained of are 
 not defamatory in their primary sense, there will still be 
 a further question : — Were there any facts known both 
 to speaker and hearer which would reasonably lead the 
 latter to understand the words in a secondary and a 
 defamatory sense ? And this is a question for the jury, 
 if there be any evidence to go to them of such facts. 
 {Capital S;- Counties Bank v. Henty (^ Sons (C. A.), 5 
 C. P. D. 514 ; 49 L. J. C. P. 830 ; 28 W. E. 851 ; Ruel 
 V. Tatnell, 29 W. E. 172 ; 43 L. T. 507.) 
 
 It will be of no avail for the defendant to urge (except 
 in mitigation of damages) that he meant the words in 
 the innocent sense, if the jury are satisfied that ordinary 
 readers or bystanders would have certainly understood 
 them in the other sense. The jury will consider the 
 whole of the circumstances of the case, the occasion of 
 publication, the relationship between the parties, &c. 
 Also whenever the words of a libel are ambiguous, or the 
 intention of the writer equivocal, subsequent libels are 
 admissible in evidence to explain the meaning of the 
 first, or to prove the innuendoes, even although such 
 subsequent libel be ^vi'itten after action brought. The
 
 114 CONSTRUCTION AND CERTAINTY. 
 
 decision of tlie jury on the question is final and con- 
 clusive. 
 
 The plaintiff may also aver in his Statement of Claim 
 that the Avords were spoken ironically 5 and it will then 
 be a question for the jury quo animo the words were 
 used. 
 
 Illustrations. 
 
 " He is a healer of felons ; '' immeudo, a concealer of felons. Held 
 actionalDle. 
 
 Pridham v. Tach'r, Yelv. 153 ; Holi. 126 ; Cart. 214. 
 " He has set his own premises on fire." These words are ijrima facie 
 innocent ; but may become actionable, if it be averred that the house was 
 insured, and that the words were intended to convey to the hearers that the 
 plaintiff had purposely set fire to his own premises with intent to defraud 
 the insurance office. 
 
 Sweetapple v. Jesse, 5 B. & Ad. 27 ; 2 X. & M. 36. 
 " She secreted one and sixpence under the till, stating, ' These are not 
 times to be robbed.' " No innuendo. There being notMng to show tliat 
 the Is. 6d. was not her o-wn money, the Coiu't arrested judgment ; for, 
 though special damage was alleged, it was not the necessary and natural 
 consequence of the words, as set out in the declaration. 
 
 Kelly v. Partington, 5 B. & Ad. 645; 3 N. & M. 116. 
 The plaintiff", Mary Griffiths, was a butcher and had a son MattheM'. 
 Words spoken by defendant : — " Matthew uses two balls to his mother's 
 steelyard ; " innuendo, "meaning that plaintiff l)y Matthew, her agent and 
 servant, used improper and fraudulent weights in her said trade, and de- 
 frauded and cheated in her said trade." After verdict for the plaintiff", luhJ 
 that the words, as stated and explained, were actionable. 
 
 ariffiths V. Leids, 7 Q. B. 61 ; 8 Q. B. 841 ; 14 L. J. Q. B. 197 ; 
 15 L. J. Q. B. 249 ; 9 Jur. 370 ; 10 Jur. 711. 
 To say that the plaintiff is " Man Friday " to another is not actionable, 
 without an innuendo averring that the term imputed undue subserviency 
 and seif-luimiliation. 
 
 Forbes v. King, 2 L. ,T. Ex. 109 ; 1 Dowl 672. 
 See JFoodgate v. Pidout, 4 F. & F. 202. 
 Words complained of: — "The old materials have been relaid by you in 
 the asphalte work executed in the front of the Ordnance Office, and I have 
 seen the work done." Innuendo, "that the plaintiff' had been guilty of 
 disho]iesty in his trade by laying down again the old asphalte which had 
 before been used at the entrance of the Ordnance Office, instead of new 
 asphalte according to his contract ; " and this innuendo was held not too 
 large. Verdict for the plaintiff. Damages, 40s. 
 
 Bahoneau v. Farrell, 15 C. B. 360 ; 24 L. J. C. P. 9 ; 3 C. L. R. 
 42 ; 1 Jur. X. S. 114.
 
 U'ORDS PRIMA FACIE IXXOCEXT. 115 
 
 An action was brought for tlie following libel on the plaintiff in the way 
 of Ills trade : — " Society of Guardians for the Protection of Trade against 
 Swindlers and Sharpers. I am directed to inform you that the persons 
 using the firm of Goldstein and Co. are reported to this Society as improp)er 
 to be proposed to be balloted for as members thereof." After verdict for 
 the plaintiff, the Court arrested judgment, because there was no averment 
 that it was the custom of the Society to designate swindlers and sharpers 
 by the term " improper persons to be members of this Society." [There was 
 an innuendo, " meaning thereby that the plaintiff was a swindler and a 
 sharper, &c.,'"' which would be sufficient now ; but before the C. L. P. Act, 
 1852, s. 61, an innuendo required a prefatory averment to support it.] The 
 words in their natural and obvious meaning were held to be no libel. 
 
 Goldstein v. Foss, 6 B. & C. 154 ; 1 M. & P. 402; 2 Y. & J. 146 ; 
 
 9 D. & R. 197 ; (in Ex. Ch.) 4 Bing. 489 ; 2 C. & P. 252. 
 Capel and others v. Jones, 4 C. B. 259 ; 11 Jur. 396. 
 To say of a merchant, " He hath eaten a spider," Mr. Justice Wild said 
 was " actionable with a proper averment what the meaning is." But the 
 report does not vouchsafe any explanation as to what the meaning was. 
 
 Franklijn v. Butler, Pasch. 11 Car. I., cited in Ammon v. Blo- 
 ficld, Carter, 214. 
 The words, " 'Ware hawk there ; mind what you are about," will, with 
 proper averments, amount to a charge of insolvency against the plaintiff, a 
 trader ; and be therefore actionable. 
 
 Orjni'ood v. Barkes (vel Parkes), 4 Bing. 261 ; 12 Moore, 492. 
 The defendant said to an upholsterer : — " You are a soldier ; I saw you 
 in your red coat doing dutj'- ; your word is not to be taken." These words 
 are primd facie not actionable ; but it Avas explained that there was then a 
 common practice for tradesmen to sham enlisting so as to avoid being 
 arrested for debt. The words were therefore held actionable as damaging 
 the credit of a trader. 
 
 Arne v. Johnson, 10 Mod. 111. 
 Gostling v. Brooks, 2 F. & F. 76. 
 The defendant said of the plaintiff' :— " Foulger trapped three foxes in 
 Eidler's Avood." These words are primd facie not actionable. But the 
 declaration averred that the plaintiff was a gamekeeper, that it is the duty 
 of a gamekeeper not to kill foxes, that the plaintiff was employed expressly 
 on the terms that he would not kill foxes, and that no one who killed foxes 
 would be employed as a gamekeeper. Held, on demurrer, a good declara- 
 tion ; for the words, so explained, clearly imputed to the plaintiff' miscou- 
 iuct in his office or occupation, and were therefore actionable without 
 proof of special damage. 
 
 Foubjer y^ Xcuxorjdj,L. R. 2 Ex. 327; 36 L. J. Ex. 169 ; 15 W. R. 
 
 1181 ; 16 L. T. 595. 
 
 A landlord sent to his tenants a notice : — "Messrs. Henty & Sons hereby 
 
 {ive notice that they will not receive in payment any checjues drawn on 
 
 my of the branches of the Capital and Counties Bank." Innuendo, 
 
 meaning thereby that the plaintiffs were not to be relied upon to meet 
 
 he cheques drawn upon them, and that their position was such that they
 
 Ii6 CONSTRUCTION AND CERTAINTY. 
 
 were not to be trusteil to cash the cheques of their customers." KM that 
 the words in their primary sense were not libellous ; and that as no evi- 
 dence was offered of facts known to the tenants which could reasonably 
 induce them to understand the words in the defamatory sense ascribed to 
 them by the innuendo, there was no question for the jury, and the judge 
 should have stopped the case. 
 
 Oa'pital and Counties Bank v. Henty and Sons (C. A.), 5 C. P. D. 
 514 ; 49 L, J. C. P. 830 ; 28 W. R. 851 [reversing the decision 
 of the C. P. T)., 28 W. R. 490 ; 42 L. T. 314]. 
 Ironical praise may be a lil^el ; e.g., calling an attorney " an honest 
 lawyer." 
 
 Boydell v. Jones, 4 M. & W. 446 ; 1 H. & H. 408 ; 7 Dowl. 210. 
 It is actionable to say ironically : — " Yon will not play the Jew or the 
 hypocrite." 
 
 R. V. Garret (Sir Baj)tist Hicks' Case), Hob. 215 ; Popham, 139. 
 Ii'onical advice to the Lord Keeper by a country parson, " to be as wise 
 as Lord Somerset, to manage as well as Lord Haversham, to love the church 
 as well as the Bishop of Salisbury," &c., is actionable. 
 B. V. Dr. Brotvn, 11 Mod. 86 ; Holt, 425. 
 
 5. Words incapable of a defamatory meaning. 
 
 But where the words can bear but one meauiug, and 
 that is obviously not defamatory, then no innuendo or 
 other allegation on the pleadings can make the words 
 defamatory ; the Statement of Claim is demm-rable ; and 
 should the defendant not see fit to demur, still the judge 
 at the trial Avill nonsuit the plaintiff and not permit the 
 case to go to the jury. No parol evidence is admissible 
 to explain the meaning of ordinary English words, in 
 the absence of special circumstances showing that in the 
 case before the Court the words do not bear their usual 
 signification. "It is not right to say that a judge is i<i 
 affect not to know what everybody else knows — the 
 ordinary use of the English language." {Fcr Brett, J., 
 1 C. P. D. 572.) The fact that actual damage has in 
 fact followed from the publication is immaterial in con- 
 sidermg what is the true construction of the libel. {Ver 
 Lord Coleridge, C.J., 2 C. P. D. 150.)
 
 WORDS CLEARLY INNOCENT. 117 
 
 Illustrations. 
 
 Words complained of : — " He was the ringleader of the nine hours' 
 system." " He has ruined the town by bringing about the nine hours' 
 system," &c. The declaration contained no innuendo, and no sufficient 
 averment that the words were spoken of the plaintiff in the way of his 
 trade, and on demurrer, was held bad. 
 
 Miller v. David, L. R. 9 C. P. 118 ; 43 L. J. C. P. 84 ; 22 AV. 
 Fv. 332 ; 30 L. T. 58. 
 
 "Words complained of : — " We are requested to state that the honorary 
 secretary of the Tichborne Defence Fund is not and never was a captain 
 in tlie Eoyal Artillery as he has been erroneously described." Inniiendo, 
 that the plaintiff was an impostor, and had falsely and fraudulently re- 
 presented himself to be a captain in Royal Artillery. Bovill, C.J., held 
 that the words were not reasonably capable of the defamatory meaning 
 ascribed to them by the innuendo, and nonsuited the plaintiff". Held 
 that the nonsuit was right. 
 
 Hunt V. Goodlah, 43 L. .J. C. P.-54 ; 29 L. T. 472. 
 
 The plaintiff was a certificated art master, and had been master at the 
 Walsall Science and Art Institute. His engagement there ceased in 
 June, 1874, and he then started, and became master of, another school 
 which was called " The Walsall Government School of Art," and was 
 opened in August. In September the following advertisement a]ipeared 
 in the Walsall Observer, signed by the defendants as chairman, treasurer 
 and secretary of the Institute respectively: — "Walsall Science and Art 
 Institute. The public are informed that Mr. Mulligan's connection with 
 the Institute has ceased, and that he is not authorized to receive sub- 
 scriptions on its behalf." The declaration set out this advertisement with 
 an innuendo, — "meaning thereby that the plaintiff falsely assiimed and 
 pretended to be authorized to receive subscriptions on behalf of the said 
 Institute." At the trial Quain, J., directed a nonsuit on the ground that 
 the advertisement was not capable of the defamatory meaning attributed 
 by the innuendo : — Held that the nonsuit was right ; that the advertise- 
 ment was not capable of any defamatory meaning. 
 
 MnlUijan v. Cole and others, L. R. 10 Q. B. 549 ; 44 L. J. Q. B. 
 153 ; 33 L. T. 12.
 
 iiS CONSTRUCTION AND CERTAINTY. 
 
 Certainty. 
 
 But even where the meaning of the defendant's words 
 is clear or has been ascertained, the question remains : — 
 Has he said enough ? "Was the imputation sufficiently 
 definite to injure the plaintiff's reputation ? Is it clear 
 that it is the plaintiff to whom he referred ? Unless 
 these questions can be answered in the affirmative, no 
 action lies. There must be a specific imputation cast on 
 the person suing. 
 
 This is clearly only a part of the construction of the words ; 
 but it is convenient to collect the cases under a separate head, 
 which may be denoted by the well-known pleading phrase 
 Certainty. Often the only question of construction arising in a 
 case may be one of certainty. 
 
 The Court formerly expected to be assisted in dealing with these 
 questions by a variety of minute averments in the plaintiff's decla- 
 ration. Thus, it was necessary that there should be a colloquium, 
 an averment that the defendant was speaking of the plaintiff, 
 as well as constant innuendoes in the statement of the words 
 themselves, "he (meaning thereby the plaintiff)." So, too, 
 many other allegations were required describing the locality, 
 the relationship between the various persons mentioned, and 
 all the surrounding circumstances necessary to fully understand 
 the defendant's words. And these matters could not properly 
 be proved at the trial unless they were set out on the record ; 
 or if they were, and the plaintiff had a verdict, the Court would 
 subsequently arrest judgment, on the ground that it did not 
 appear clearly on the face of the record that the words were 
 actionable. And this technicality was carried to an absurd 
 extent. Thus, where the defendant said, " Thou art a murderer, 
 for thou art the fellow that didst kill Mr, Sydnam's man," the 
 Court of Exchequer Chamber, on error brought, arrested judg- 
 ment, because there was no averment that any man of Mr. 
 Sydnam's had in fact been killed. Barrons v. Ball (1614), 
 Cro. Jac. ool. See Ratcliff v. Micliael, ib., and Upton v. 
 Puifold, Comyn, 207. (Had the words been "and thou art,"
 
 INTRODUCTORY AVERMENTS. 119 
 
 instead of "for thou art," the plaintiff would probably have 
 been allowed to recover. See Minors v. LeeforJ, Cro. Jac. 
 114.) Again, in Ball v. Roane (1593), Cro. Eliz. 308, the 
 words were : — " There was never a robbery committed within 
 forty miles of Wellingborough, but thou hadst thy part in it." 
 After a verdict for the plaintiff, the Court arrested judgment, 
 " because it was not averred there was any robbery committed 
 within forty miles, &c., for otherwise it is no slander." So in 
 Foster v. Broivniiig (1625), Cro. Jac. 688, where the words 
 were, "Thou art as arrant a thief as any is in England," the 
 Court arrested judgment, because the plaintiff had not averred 
 "that there was any thief in England." See also Johnson v. 
 Sir John Aylmer, Cro. Jac. 126 ; Sir Thomas Holt v. Astrigg, 
 Cro. Jac. 184 ; Sloconib's Case, Cro. Car. 442. But the climax 
 was reached in a case cited in Dacy v. Clinch (1661), Sid. 53, 
 where the defendant had said to the plaintiff, "As sure as God 
 governs the world, or King James this kingdom, you are a 
 thief." After verdict for the plaintiff, the defendant moved in 
 arrest of judgment, on the ground that there was no averment 
 on the record that God did govern the world, or King James 
 this kingdom. But here the Court drew the line, and held 
 that "these things were so apparent," that neither of them need 
 be averred. And even in the present century, instances of 
 similar technicality are not wanting, though their absurdity is 
 not so flagrant. Thus, in Solomon v. Laivson, 8 Q. B. 823 ; 15 
 L. J. Q. B. 253 ; 10 Jur. 796, the libel consisted of two letters 
 to the Times ; the first made a charge generally on " the 
 authorities " at St. Helena ; the second letter brought it home 
 to the plaintiff in particular. Neither letter was thus a com- 
 plete libel in itself. In the first count of the declaration the 
 first letter was fully set out ; in the second count hoth letters 
 were set out verbatim. The first count was held bad, because 
 it set out only half the libel. The second count was also held 
 bad, because the pleader in setting out the first letter for the 
 second time had introduced it with the words " in substance as 
 follows." The Court decided that it ought to have been set out 
 verbatim : so it was ; but because the pleader sccid he had only 
 set out the substance, judgment was arrested. Lord Denman 
 would, it seems, have given judgment for the plaintiff, had the 
 pleader used the word " tenour," instead of "substance.'' So,
 
 I20 CONSTRUCTION AND CERTAINTY. 
 
 too, in Angle v. Alexander, 7 Bing. 119 ; 1 Cr. & J. 143; 4 
 M. & P. 870 ; 1 Tyrw. 9 ; the words were thus set out with 
 innuendoes in the declaration, " You (meaning the said plaintiff) 
 are a regular prover under bankruptcy (meaning that the said 
 plaintiff was accustomed to prove fictitious debts under com- 
 missions of bankruptcy) ; you are a regular bankrupt maker ; 
 if it was not for some of your neighbours, your shop would look 
 queer." And the Court arrested judgment because there was 
 no prefatory averment that the defendant had been accustomed 
 to employ the words " prover under bankruptcy," in the mean- 
 ing set out in the innuendo. See also Goldstein v. Foss mid 
 another, 6 B. & C. 154 ; 4 Bing. 489 ; 9 D. & R. 197 ; 2 C. & 
 P. 252; 1 M. & P. 402; 2 Y. & J. 146 ; and other cases cited, 
 ante, p. 104. 
 
 But now, by s. 61 of the Common Law Procedure Act, 1852, 
 the colloquium and alf other such frivolous averments are 
 rendered unnecessary ; and Order XIX. r. 4, requires that only 
 material facts need be stated in the pleadings. The pleader 
 must judge what facts are material ; and he will also insert 
 averments, which, though not essential, will help to make the 
 case clear, by explaining what is to follow (as in Foulger v. 
 Neivcomh, L. R. 2 Ex. 327; 36 L. J. Ex. 169 ; 15 W. R. 1181 ; 
 16 L. T. 595). But where the plaintiff is suing for words 
 spoken of him in the way of his oflfice, profession, or trade, 
 there it is absolutely necessary to aver that at the time when 
 the words were spoken the plaintiff held such office or carried 
 on such profession or trade. And there should also be an aver- 
 ment that the words were spoken by the defendant with refer- 
 ence to such office, profession, or trade. 
 
 1. Certainty of the imputation. 
 
 Where words are sought to be made actionable, as 
 charging the plaintiff with the commission of a crime, we 
 have seen that an indictable offence must be specifically 
 imjDuted. It will not be sufficient to prove words which 
 only amount to an accusation of fraudulent, dishonest, 
 vicious, or immoral conduct, so long as it is not criminal ; 
 or of a mere intention to commit a crime, not evidenced
 
 CHARGES OF CRIME. 121 
 
 by any overt act. But still it is not necessary that the 
 alleged crime should be stated with all the technicality 
 or precision of an indictment ; if the crime be imputed in 
 the ordinary language usually employed to denote it in 
 lay conversation. All that is requisite is that the by- 
 standers should clearly understand that the plaintiif is 
 charged with the commission of a specific crime. " The 
 meaning of the words is to be gathered from the vulgar 
 import, and not from any technical legal sense." {Per 
 BuUer, J., in Colman v. Godzvin^ 3 Dougl. 91 ; 2 B. & 
 C. 285 (n.)). 
 
 Illustrations. 
 
 Treason. 
 
 The following words have been held sufficiently definite to constitute a 
 charge of treason, or at least of sedition, and therefore actionahle : — 
 Thy master is " no true subject." 
 
 Waldegrave v. Agas, Cro. Eliz. 191. 
 
 Sed qucere, Foivler v. Aston, Cro. Eliz. 268 ; 1 Roll. Abr. 43. 
 " He consented to the late rebels in the North." 
 
 Stcqyleton v. Frier, Cro. Eliz. 251. 
 " Thou art a rebel, and all that keep thee company are rebels, and thou 
 art not the Queen's friend." 
 
 Redston v. Eliot, Cro. Eliz. 638 ; 1 Roll. Abr. 49. 
 " Thou art an enemy to the State." 
 
 Charter v. Peter, Cro, Eliz. 602. 
 " He has the Pretender's picture in his room, and I saw him drink 
 his health. And he said he had a right to the Crown." 
 Fry V. Came (1724), 8 Mod. 283. 
 
 How V. Prin (1702), Holt, 652 ; 7 Mod. 107 ; 2 Ld. Raym. 812; 
 2 Salk. 694 ; 1 Brown Py. C. 64. 
 But to say merely " Thou art a rebel," was adjudged not actionable. 
 Fountain v. Rogers (1601), Cro. Eliz. 878. 
 
 Murder, 
 
 So it is a sufficient charge of murder to say : — 
 " Thou hast killed thy master's cook." 
 
 Cooper V. Smith, Cro. Jac. 423 ; 1 Roll. Abr. 77. 
 " I am thoroughly convinced that you are giiilty of the death of Daniel 
 Dolly, and ratlier than you should want a hangman, I will be your execu- 
 tioner." 
 
 Peake v. Oldham, Cowp. 275 ; 2 Wm. Bl. 959.
 
 122 CONSTRUCTION AND CERTAINTY. 
 
 But it is not sufficient to say : — 
 "Hext scel^s my life." "Because he may seek his life lawfully upon 
 just cause." 
 
 Ilcxt V. Ycoma'n&, 4 Rep. 15. 
 " He was the cause of the death of Dowlancl's child," because a man 
 might innocently cause the death of another by accident or misfortune. 
 Milhr V. BucMon, 2 Buls. 10. 
 " Thou wouldst have killed me," for here a murderous intention only 
 is imputed. 
 
 Dr. Poe's Case, 1 Yin. Abr. 440, cited in 2 Buls. 206. 
 
 Forgery. 
 
 The following words have been held a sufficient charge of forgery : — 
 " This is a counterfeit warrant made by Mr. Stone." 
 
 Stone V. Smalcomhe, Cro. Jac. 648. 
 " Thou hast forged a privy seal, and a commission." Per cur. " ' A com- 
 mission ' shall be intended the king's commission, imder the privy seal." 
 Baal V. Baggerley, Cro. Car. 326. 
 " You forged my name," although it is not stated to what deed or instru- 
 ment. 
 
 Jones V. Heme, 2 Wils. 87. 
 
 Overruling Anon, 3 Leon. 231 ; 1 Roll. Abr. 65. 
 
 Larceny. 
 
 The following words are a sufficient charge of larceny : — 
 " Baker stole my box-wood, and I will prove it." It was argued that it 
 did not appear from the words that the box-wood was not growing ; and 
 that to cut down and remove growing timber is a trespass only, not a 
 larceny. But Holt, C. J., gave judgment for the plaintiff. 
 
 Baker v. Pierce, 6 Mod. 234 ; 2 Salk. 695 ; Holt, 654 ; 2 Ld. 
 
 Raym. 959. 
 Overruling Mason v, Thom^oson, Hutt, 38. 
 " Thou hast stolen our bees, and thou art a thief." After verdict it 
 was contended that larceny cannot be committed of bees, unless they be 
 hived ; but the Court lield that the subsequent words " thou art a thief" 
 showed that the larceny imputed was of such bees as could be stolen. 
 Tibhs V. Smith, 3 Salk. 325 ; Sir Thos. Raym. 33. 
 Minors v. Leeford, Cro. Jac. 114. 
 So a cliarge of being " privy and consenting to " a larceny is actionable. 
 
 Mot et ux. V. Butler, Cro. Car. 236. 
 " He is a pickpocket ; he picked my pocket of my money," was once 
 held an iusuflicient charge of larceny. 
 
 Watts V. Byrnes, 2 Lev, 51 ; 1 Yentr. 213 ; 3 Salk. 325. 
 But now this would clearly be lield sufficient. 
 Baker v. Pierce, supra. 
 Stebbing v. Warner, 11 Mod. 255.
 
 CHARGES OF CRIME. 123 
 
 Eeceiving Stolen Goods. 
 
 To say " I liave been robbed of three dozen winches ; you bought two, 
 one at 3s., one at 2s. ; you knew well when you bought them that they 
 cost me three times as much making as you gave for them, and that 
 they could not have been honestly come by," is a sufficient charge of 
 receiving stolen goods, knowing them to have been stolen. 
 
 [An indictment which merely alleged that the prisoner knew the 
 goods were not honestly come by would be bad. R. v. IVilson, 2 Mood. 
 C. C. 52.] 
 
 Alfred v. Farlow, 8 Q. B. 854 ; 15 L. J. Q. B. 258 ; 10 Jur. 714. 
 
 Clarke's Case de Dorchester, 2 Rolle's Rep. 13(5. 
 
 Kincf V. Bagg, Cro. Jac. 331. 
 
 Bigamy. 
 
 Mrs. Heming was sister to Mr. AUeyne. The defendant said : — " It 
 has been ascertained beyond all doubt that Mr. Alleyne and Mrs. Heming 
 are not brother and sister, but man and wife." Held that it was open 
 to the jury to construe this as a charge of bigamy, as well as of incest. 
 Heming and luife v. Power, 10 M. & W. 564. 
 
 Perjurg. 
 
 " You are forsworn " without more, is insufficient. 
 Stanhope v. Blith (1585), 4 Rep. 15. 
 Holt V. Scholefield, 6 T. R. 691. 
 Hull V. JFeedon, 8 D. & R. 140. 
 But to say they " did not scruple to turn affidavit-men," is sufficient. 
 
 Poach V. Peed and Hnggonson (1742), 2 Atk. 469 ; 2 Dick. 794. 
 " Thou art forsworn in a court of record, and that I will prove ! " 
 was held sufficient ; though it Avas argued after verdict that he might 
 only have been talking in the court-house and so forsworn himself ; but 
 the Court held that the Avords would naturally mean forsAvoru while 
 giving evidence in some judicial proceeding in a court of record. 
 Ceelg v. Hoshins, Cro. Car. 509. 
 
 False Pretences. 
 
 The words " He has defrauded a mealman of a roan horse," held not 
 to imply a criminal act of fraud ; as it is not stated that the mealman 
 was induced to part with his j^roperty by means of any false pretence. 
 Richardson v. Allen, 2 Chit. 657. 
 
 Attempt to Commit a Felony. 
 
 The following words were held sufficient : — 
 " He sought to murder me and I can ])rove it." 
 
 Preston v. Pinder, Cro. Eliz. 308. 
 " She would have cut her husband's tliroat and did attempt it." 
 
 Scot et lu:. v. Hilliar, Lane, 98 ; 1 Vin. Abr. 440.
 
 124 CONSTRUCTION AND CERTAINTY. 
 
 The following insufficient : — 
 " Thou wouklst have killed me." 
 
 Br. Poe's Case, cited in Murrey's Case, 2 Bills. 206 ; 1 Vin. Alu. 
 440. 
 " Sir HaiLert Croft keepeth men to roL me." 
 
 Sir Harbcrt Croft v. Ilrou-n, 3 Buls. 167. 
 " He would have robbed me." 
 
 Stoner v. Audely, Cro. Eliz. 250. 
 For here no overt act is charged, and raere intention is not criminal. 
 
 Other instances of a criminal charge indirectly made will be found in 
 Stiell V. TFeUing, 2 Lev. 150 ; 1 Vent. 276. 
 Clerk V. Dyer, 8 ]\lod. 290. 
 Woolnoth V. Meadows, 5 East, 463 ; 2 Smith, 28. 
 
 Where words clearly refer to the plaintiff's office and 
 his conduct thereia, or otherwise clearly touch and 
 injure him therein, it is unnecessary that the defendant 
 should expressly name his office or restrict his words 
 thereto; it shall be intended that he was speaking of 
 him in the way of his office or trade. 
 
 Illustrations. 
 
 To say of a clerk, " He cozened his master " is actionable, though the 
 defendant did not expressly state that the cozening was done in the 
 execution of the clerk's official duties ; that will be intended. 
 Beignald's Case (1640), Cro. Car. 563. 
 Beeve v. Holgate (1672), 2 Lev. 62. 
 To say of a trader, " he has been arrested for debt " is actionable, 
 though no express reference be made to his trade at the time of publi- 
 cation ; for such words must necessarily affect his credit in his trade. 
 Jones V. Littler, 7 M. & W. 423 ; 10 L. J. Ex. 171. 
 
 It is not necessary that the defendant should in so 
 many words expressly state the j)laintLff has committed a 
 particular crime. So, where a charge is made against a 
 trader, it need not be conveyed in positive and dii'ect 
 language. Any words which distinctly assume or imply 
 the plaintiff's guilt, or raise a strong suspicion of it in 
 the minds of the hearers, are sufficient. But words 
 merely imputing to the plaintiff' a criminal intention or
 
 INDIRECT IMPUTATIONS. 125 
 
 design are not actionable, so long as no criminal act iis 
 directly or indirectly assigned. So, too, words of more 
 suspicion, not amounting to a charge of felony, are not 
 actionable. 
 
 Illustrations. 
 
 The following words have been held to convey an imputation with 
 sufficient certainty and precision : — 
 
 " I believe all is not well with Daniel Vivian ; there be many mer- 
 chants who have lately failed, and I expect no otherwise of Daniel 
 Vivian ; " for this is a charge of present pecimiary embarrassment. 
 Vivian v. Willet, 3 Salk. 326 ; Sir Thos. Eaym. 207. 
 "Two dyers are gone off, and for aught I know Harrison will be so 
 too within this twelvemonth." 
 
 Harrison v. Thornborouyh, 10 Mod. 196 ; Gilb. Gas, 114. 
 " He has become so inflated with self-importance by the few hundreds 
 made in my service— God only knoAvs whether honestly or otherwise ; " 
 for this is an insinuation of embezzlement. 
 
 Clegg v. Laffer, 3 Moore & Sc. 727 ; 10 Bing. 250. 
 " I think in my conscience if Sir John might have his will, he would kill 
 the king ; " for this is a charge of compassing the king's death. 
 Sulnamv. Mayo, 1 Roll. Rep. 427 ; Cro. Jac. 407, 
 Peake v. Oldham, Gowp. 275 ; 2 Wm. Bl. 959, ante, p, 121. 
 To state that criminal proceedings are about to be taken against the 
 plaintiff {e.g., that the Attorney-General had directed a certain attorney 
 to prosecute him for perjury,) is actionable, although the speaker docs 
 not expressly assert that the plaintiff is guilty of the charge. 
 Roberts v. Camden, 9 East, 93. 
 Tempest v. Chambers, 1 Stark. 67. 
 Bell v. Byrne, 13 East, 554. 
 
 Contra Harrison v. King, 4 Price, 46 ; 7 Taunt, 431 ; 1 B. & 
 Aid. 161. 
 So where the defendant on hearing that his barns were burnt down, 
 said, " I cannot imagine who it should be but the Lord Sturton." 
 Lord Sturton v. Chaffin (1563), Aloore, 142. 
 But where the defendant said, "I have a suspicion that you and B. 
 have robbed my house, and therefore I take you into custody," the jury 
 fuund that the words did not amount to a direct charge of felony, but 
 only indicated what was passing in defendant's mind. 
 
 Tozer v. Mashford, 6 Ex. 539 ; 20 L. J. Ex. 225. 
 Williams v, Gardiner, 1 M. & W. 245 ; 1 Tyr. & Gr. 578, 
 No action lies for such words as " Thou deservest to be hanged," for 
 here no fact is asserted against the plaintiff. 
 Hake v. Molton, Roll. Abr. 43, 
 Cockaine v. Hopkins, 2 Lev. 214. 
 But it is actionable to say :— " I am of opinion that such a Privy Conn-
 
 126 CONSTRUCTION AND CERTAINTY. 
 
 cillor is a traitor," or "I tliink such a judge is corrupt." Per Wyndliaui 
 and Scroggs, JJ., and North, C.J., in 
 
 Lord Townshcnd v. Dr. Hughes, 2 Mod. 166. 
 So too if the charge incidentally slips into a conversation on another 
 matter, an action lies ; as where the defendant said : — " Mr. Wingfield, 
 you never thought well of me since Graves did steal my lamb ; " and it 
 was held that Graves could sue. 
 
 Graves' Case, Cro. Eliz. 289. 
 Or, " I dealt not so rmkindly with you, when you stole my sack of 
 corn." 
 
 Cooper V. Hawkesioell, 2 Mod. 58. 
 A libellous charge may be insinuated in a question : e.g., " We should 
 be glad to know how many poj^ish priests enter the nunneries at 
 Scorton and Darlington each week i and also how many infants are Ijorn 
 in them every year, and w'hat becomes of them ? whether the holy 
 fathers bring them up or not, or whether the innocents are murdered 
 out of hand or not." Alderson, B., directed the jury that if they thoixglit 
 the defendant by asking the question meant to assert the facts insinuated, 
 the passage was a libel. 
 
 li. V. Gathercole, 2 Lew. C. C. 255. 
 So a slander may be conveyed in a (j[uestion and answer or in a series 
 of questions and answers. 
 
 Gainford v. Tule (1620), Cro. Jac. 536. 
 Haywood v. Nayler (1636), 1 Roll. Abr. 50. 
 Ward V. Reynolds (1714), cited Cowp. 278. 
 
 A libellous charge may be sufficiently conveyed by a mere 
 adjective. 
 
 " Thou art a leprous knave." 
 
 Taylor v. Perkins, Cro. Jac. 144 ; 1 Eoll. Abr. 44. 
 " He is a bankrupt knave," spoken of a trader. 
 
 Squire v. Johns, Cro. Jac. 585. 
 " Thou art a broken fellow." 
 
 A71071, Holt, 652. 
 " He is perjured," or '■' mainsworn." 
 
 Vroford v. Blisse, 2 Buls. 150. 
 " A libellous journalist," a phrase which will be taken to mean that 
 the plaintiff habitually publislies libels in his paper, not that he once 
 published one liliel merely. 
 
 Waldey v. Cooke and Heale.y, 4 Exch. 511 ; 19 L. J. Ex. 91. 
 
 So, if the plaintiff is obviously only repeating gossip, not 
 asserting the charge as a fact within his own knowledge. 
 
 " I heard you had run away " {sc. from your creditors). 
 -Dam V. Lewis, 7 T. R. 17.
 
 CERTAINTY AS TO THE PERSON. 127 
 
 " Thoit art a sheep-stealing rogue, and Farmer Parker tolil me so." 
 
 Gardiner v. Atirater, Sayer, 265. 
 " One told me that lie heard say that Mistress Meggs had poisoned her 
 &-st husband.-" 
 
 3fegcjs v. Griffith (vel Griffin), Cro, Eliz. 400 ; Moore, 408. 
 
 Read's Case, Cro. Eliz. G45. 
 " Did you not hear that C. is guilty of treason." 
 
 Per cur. in Earl of Northampton's Case, 12 Reji. 134. 
 
 2. Certainty as to tJie Person defamed. 
 
 The defamatory words must refer to some ascertained 
 or ascertainable person, and that person must be the 
 plaiutiif. 
 
 If the words used really contain no reflection on any 
 
 particular individual, no averment or innuendo can make 
 
 them defamatory. 
 
 Illiistvation. 
 
 "Suppose tlie words to be 'a murder was committed in A.'s house last 
 night ; ' no introduction can warrant the innuendo ' meaning that B. 
 committed the said murder ; ' nor would it be helped by the finding of 
 the jury for the plaintiff. For the Court must see that the words do 
 not and cannot mean, it, and would arrest the judgment accordingly. 
 Id certain est, quod certum reddi potest ." Per Lord Denman, C.J., in 
 
 Solomon v. Lav:son, 8 Q. B. 837 ; 15 L. J. Q. B. 257 ; 10 Jur. 
 796. 
 "If a man wrote that all lawyers were thieves, no particular lawyer 
 could sue him, unless there is something to point to the particular 
 individual." Per Willes, J., in 
 
 Eastwood V. Holmes, 1 F. & F. 349. 
 To assert that an acceptance is a forgery is no libel on the drawer, 
 unless it someliow appear that it was he who was charged with forging it. 
 
 StocMey v. Clement, 4 Bing. 162 ; 12 Moore, 376. 
 Tlie defendant in a sj^eech commented severely on the discipline of 
 the Eoman Catholic church, and the degrading punishments imposed on 
 penitents. He read from a paper an account given by three policemen 
 of the severe penance imposed on a poor Irishman. It appeared inci- 
 dentally from this report that the Irishman had told the policemen that 
 his priest Avould not administer the Sacrament to him till the penance 
 was performed. The plaintiff averred that he was the Irishman's priest, 
 but it did not appear how enjoining such a penance on an Irishman 
 would affect the character of a Roman Catholic priest. The alleged lihel 
 was in no other way connected with the plaintiff. Held no libel, and 
 no slander, of the plaintiff. 
 
 Hearne v. StoKell, 12 A. & E. 719 ; 6 Jur. 458 ; 4 P. & D. 696.
 
 128 CONSTRUCTION AND CERTAINTY. 
 
 Tliougli tlie words used may at first sight appear only 
 to apply to a class of individuals, and not to be specially 
 defamatory of any particular member of that class, still 
 an action may be maintained by any one individual of 
 that class who can satisfy the jury that the words 
 referred especially to himself. The words must be 
 capable of bearing such special application, or the judge 
 should stop the case. And there must be an averment 
 in the Statement of Claim, that the words were spoken 
 of the plaintiff. The plaintiff may also aver extraneous 
 facts, if any, showing that he was the person expressly 
 referred to. 
 
 Formerly it was absolutely necessary, as we have seen, to 
 overload the pleadings with averments, such as, that the defen- 
 dant was talking to J. S. about the plaintiff and about the 
 plaintiff's conduct in and about a certain matter ; and that in 
 the course of such conversation he spoke of and concerning the 
 plaintiff, and of and concerning the said matter, the words 
 following — that is to say, &c. A great many other details had 
 to be formally set out in order to support the subsequent brief 
 innuendo, " he (meaning the pkiintiff)." And then, too, the 
 introductory averments had to be properly connected with the 
 innuendo ; or their presence was of no avail. Clement v. 
 Fisher, 7 B. & C.,459 ; 1 M. & K 281. But now all such pit- 
 falls are removed by Common Law Procedure Act, 1852, s. 61. 
 No such averments are any longer necessary ; the innuendo aloue 
 is sufficient. " The old decisions which support the argument 
 that an innuendo cannot be allowed to make persons certain 
 who were uncertain before, are not now sustainable." Po' 
 Coltman, J., in Turner v. Meryweather, 7 C. B. 2ol ; 18 L. J. 
 C. P. 155 ; 13 Jur. 683 ; and in error, 19 L. J. C. P. 10. And 
 the decision of the jury on the point is fiual. After a verdict 
 for the plaintiff, the defendant can no longer argue that it does 
 not sufficiently appear to whom the words relate. 
 
 And this is no breach of the rule that the office of the 
 innuendo is to explain and not to extend the sense of the 
 defamatory matter. For here the innuendo does not extend
 
 CERTAINTY AS TO THE PERSON. 129 
 
 the meaning, it only points out the particular individual to 
 whom the matter in itself defamatory does in fact apply. 
 
 So, if the words spoken or written, tliougli plain in 
 themselves, apply equally well to more persons than one, 
 evidence may be given both of the cause and occasion of 
 publication, and of all the surrounding circumstances 
 affecting the relation between the parties, and also of any 
 statement or declaration made by the defendant as to the 
 person referred to. The plaintiff may also call at the trial 
 his fi'iends or those acquainted with the circumstances, to 
 state that on reading the libel they at once concluded 
 that it was aimed at the plaintiff. [Bourke v. Warren^ 
 2 C. & P. 307 ; Broome v. 'Oosden, 1 C. B. 728.) If the 
 application to a particular individual can be generally 
 perceived, the publication is a libel on liim, however 
 general its language may be, "Whether a man is called 
 hyoiie name, or whether he is called by another, or 
 whether he is described by a pretended description of a 
 class to which he is kno^^ai to belong, if those who look 
 on know well who is aimed at, the very same injury is 
 inflicted, the very same thing is in fact done, as would 
 be done if his name and Chi'istian name were ten times 
 repeated." {Per Lord Campbell, C.J., in Le Fanu and 
 another v. Malcolmson^ 1 H. L. C. 668.) 
 
 Where the libel consists of an effigy, picture, or caricature, 
 care should be taken to show by proper innuendoes and aver- 
 ments, the libellous nature of the representation and its especial 
 reference to the plaintiff. It is often in such cases difficult for 
 the plaintiff to prove that he is the person caricatured. 
 
 . Illustrations. 
 
 Words complained of : — "We would exhort the medical officers to avoid 
 the traps set for them Ly desperate adventurers, (innuendo, thereby- 
 meaning the plaintiff among others,) who, i)articipating in their efforts, 
 would inevitably cover them -with ridicule and disrepute." The jury 
 
 K
 
 I30 CONSTRUCTION AND CERTAINTY. 
 
 found tliat the words were iutended to apply to the plaintiff. Judgment 
 accordingly for the plaintiff. 
 
 Walleij V. Healeij, 7 0. B. 591 ; 18 L. J. C. P. 241. 
 A newspaper article imputed that " in some of the Irish factories " 
 cruelties were practised upon the workpeoijle. Innuendo " in the factory 
 of the plaintiffs " who were manufacturers. The jury were satisfied that the 
 newspaper was referring especially to the plaintiffs' factory, and foimd a 
 verdict for the plaintiffs, and the House of Lords held the declaration good. 
 Le Fanu and another v. Malcolmson, 1 H. L. C. 637 ; 13 L. T. 
 61 ; 8 Ir. L. K. 418. 
 If asterisks be put instead of the name of the party libeUed, it is 
 sufficient that those who know the plaintiff should be able to gather 
 from the libel that he is the person meant ; it is not necessary that all 
 the world should understand it, so long as the meaning of the paragraph 
 is clear to the plaintiff's acquaintances. 
 
 Bourhe v. Warren, 2 C. & P. 307. 
 
 Some libellous verses Avere written about " L y, the Bum ; " the 
 
 Court was satisfied in spite of the finding of the jury that the words 
 related to the plaintiff, a sheriff's officer. 
 
 Levi V. Milne, 4 Bing. 195 ; 12 Moore, 418. 
 " All the libellers of the kingdom know now that printing initial letters 
 \\ill not serve the turn, for that objection has been long got over." Per 
 Ld. Hardwicke in 
 
 Boach V. Read and Hiujijonson (1742), 2 Atk. 470 ; 2 Dick. 794. 
 There appeared in Mist's Weekly Journal an account professedly of 
 certain intrigiies, &c. at the Persian Court, really, at the English. The 
 late King George I. was described under the name of '"Merewits," George 
 II. appeared as "Esreff," the Queen as "Sultana," whilst a most engag- 
 ing portrait was drawn of the Pretender under the name of " Sophi." 
 It was objected on behalf of the prisoner that there was no evidence 
 that the author intended his seemingly harmless tale to be thus inter- 
 ])reted and applied : but the Court held that they must give it the same 
 meaning as the generality of readers would undoubtedly put upon it. 
 F. V. Clerk (1729), 1 Barnard, 304. 
 If the defendant says " A. or B." committed such a felony, both A. and 
 JJ., or either of them can sue, for both are brought into suspicion. 
 Anon. 1 EoL Abr. 81. . 
 In Falkner v. Cooper (1678), Carter, 55, the Court was divided on this point. 
 " You or Harrison hired one Bell to forswear himself" Harrison can sue. 
 Harrison v. Thornhorovgh, 10 Mod. 196 ; Gilb. Cas. in Law and 
 Eq. 114. 
 If a man says "My brother," or ''my enemy" is perjured, and hath 
 only one brother or one enemy, such brother or enemy can sue ; but if 
 he says " One of my brothers is perjured," and he hath several brothers, 
 no one of them can sue [without special circumstances to show to which 
 one he referred]. 
 
 Jones v. Davers, Cro. EHz. 497 ; 1 Eoll. Abr. 74. 
 Wiseman v. Wiseman, Cro. Jac. 107.
 
 I 
 
 CERTALYTY AS TO THE PERSOX. 131 
 
 So if a man says to the plaintiff's servant, " Tliy master Brown hath 
 rv)bbed me," Brown can sue ; lor it shall not be intended that the person 
 addressed had more than one master of the name of Brown. So if the 
 defendant had said, " Thy master," simplkiter ; or to a son, " Thy lather," 
 to a wife, " Thy husband." 
 
 Per Haugliton, J., in Lewes v. Walter (1617), 3 Bulstr. 226. 
 Broivn v. Low or Lane, Cro. Jac. 443 ; 1 Roll. Abr. 79. 
 Waldecjrave v. Agas, Cro. Eliz. 191. 
 But if the defendant said to a master, " One of thy servants hath 
 robbed me," in the absence of special circumstances no one could sue ; 
 I'or it is not apparent who is the person slandered. So where a party 
 iii a cause said to three men who had just given evidence against him : 
 ' One of you three is perjured," no action lies. 
 
 (Sir John Bourn's Case, cited Cro. Eliz. 497. 
 Where the defendant said to his companion B. : — " He that goeth before 
 thee is perjured,'' the plaintiff can sue, if he aver and prove that he was 
 at that moment walking before B. 
 
 Aish V. Gerish, 1 Roll. Abr. 81. 
 A libel was published on a " diabolical character," who, "like Polyphe- 
 mus, the man-eater, has but one eye, and is well known to all persons ac- 
 ([uainted with the name of a certain noble cii'cunmavigator." The plaintiff 
 iiad but one eye, and his name was I' Anson ; so it was clear that he was 
 the j)erson referred to. 
 
 FAtisoii V. Stuart, 1 T. R. 748 ; 2 Smith's Lg. Cas. (6th ed.), 57, 
 
 [omitted in 7th and 8th eds.] 
 Fleetwood v. Curl, Cro. Jac. 557 ; Hob. 268. 
 
 Words defamatory of A. may in some cases be also 
 indirectly defamatory of B. 
 
 Illustrations. 
 
 Where a married man was called " cuckold " in the City of London, his 
 wife cftuld sue ; for it was tantamount to calling lier " whore." 
 Vicars v. Worth, 1 Stra. 471. 
 HodgMns et ur. v. Corbet et ux., 1 Stra. 545. 
 Slander addressed to plaintiff's wife : — "You are a nuisance to live 
 [beside of. You are a bawd ; and your house is no better than a bawdy- 
 house." Held that the plaintiff could maintain the tiction without joining 
 his wife, and without proving special damage ; because if in fact his wife 
 ■ did keep a bawdy-house, the plaintiff" could be indicted for it. 
 Huckle V. Reynolds, 7 C. B. (N. S.), 114. 
 
 AYhere the words prima facie apply only to a fJiing^ 
 and not to a person, still if the owner of the thing can 
 
 K 2
 
 132 CONSTRUCTION AND CERTAINTY. 
 
 show that the Avords substantially reflect upon him, he 
 may sue, without giving proof of special damage and 
 without proving express malice. 
 
 Illustration. 
 
 To write and puLlisli that plaintiff's ship is unseaworthy and has been 
 sold to the Jews to carry convicts, is a libel upon the plaintiff in the way 
 of his business, as well as upon his ship. 
 
 Ingram v. Lausnn, 6 Bing. N. C. 212 ; 4 Jur. 151 ; 9 C. & P. 
 
 326 ; 8 Scott, 471. 
 Solomon v. Lawson, 8 Q. B. 823 ; 15 L. J. Q. B. 253 ; 10 Jur. 
 796, and other cases cited, ante, pp. 32 — 34.
 
 CHAPTER IV. 
 
 SCANDALUM MAGNATUM. 
 
 By virtue of certain ancient statutes, words which, 
 would not be actionable, if spoken of an ordinary subject, 
 are actionable, if spoken of a peer of the realm, or of a 
 judge, of any of the great officers of the Crown, even 
 without proof of any special damage. 
 
 It has been maintained that tliis privilege existed at the 
 common law, independently of any statute ; and passages are 
 generally cited from Reports in support of this opinion. But in 
 the passages relied on, Lord Coke appears to me to be referring 
 to criminal, and not to civil proceedings. And such a distinc- 
 tion between nobles and commoners appears to me alien to the 
 spirit of our common law. 
 
 The following are the statutes referred to :—" Foras- 
 much as there have been oftentimes found in the country 
 devisors of tales, whereby discord or occasion of discord, 
 hath many times arisen between the King and his people, 
 or great men of this realm ; for the damage that hath 
 and may thereof ensue ; it is commanded, that from 
 henceforth none be so hardy to tell or publish any false 
 news or tales, whereby discord, or occasion of discord or 
 slander, may grow between the King and his people, or 
 the great men of the realm ; and he that doth so, shall 
 be taken and kept in prison, until he hath brought him 
 into the court, which Avas the first author of the tale." 
 (3 Edw. I. Stat. Westminster I. c. 34.)
 
 134 SC AND ALUM MAGNATUM. 
 
 " Item, of devisors of false news, and of liorrible and 
 false lyes, of prelates, dukes, earls, barons, and other 
 nobles and great men of the realm, and also of the chan- 
 cellor, treasurer, clerk of the privy seal, steward of the 
 King's house, justices of the one bench or of the other, 
 and of other great officers of the realm, of things which 
 by the said prelates, lords, nobles and officers aforesaid, 
 were never spoken, done, nor thought, in great slander 
 of the said prelates, lords, nobles, and officers, whereby 
 debates and discords might arise betwixt the said lords, 
 or between the lords and the commons, which God 
 forbid, and whereof great peril and mischief might 
 come to all the realm, and quick subversion and destruc- 
 tion of the said realm, if due remedy be not provided : 
 It is straitly defended upon grievous pain, for to eschew 
 the said damages and perils, that from henceforth none 
 be so hardy to devise, speak, or to tell any false news, 
 lyes, or such other false things, of prelates, lords, and of 
 other aforesaid, Avhereof discord or any slander might 
 rise within the same realm ; and he that doth the same 
 shall incur and have the pain another time ordained 
 thereof by the Statute of Westminster the Fu'st, which 
 will, that he be taken and imprisoned till he have found 
 him of whom the word was moved." (2 Eich. II. 
 St. I. c. 5.) 
 
 " Item, whereas it is contained, as well in the Statute 
 of Westminster the First, as in the statute made at 
 Gloucester, the second year of the reign of our lord the 
 King that now is, that none bo so hardy to invent, to 
 say, or to tell any false news, lies, or such other false 
 things, of the prelates, dukes, earls, barons, and other 
 nobles and great men of the realm, and also of the chan- 
 cellor, treasui'er, clerk of the privy seal, the steward of : 
 the King's house, the justice of the one bench or of the 
 other, and other great officers of the realm, and he that
 
 I 
 
 SCANDALUM MAGNATUM. 135 
 
 dotli so shall be taken and imprisoned, till lie liath found 
 him of whom the speech shall be moved : It is accorded 
 and agreed in this Parliament, that when any such is 
 taken and imprisoned, and cannot find him by Avhom 
 the speech be moved, as before is said, that he be 
 pimished by the advice of the council, notwithstanding 
 the said statutes." (12 Eich. II. c. 11.) 
 
 Although by these statutes no civil remedy is expressly given, 
 yet the violation of these provisions entitles the great men of 
 the realm to sue for damages, on the well-knoAvn principle, that 
 if A. does an act expressly prohibited by statute, whereby B. is 
 prejudiced, A. must compensate B. for such private injury. A. 
 will also be liable to imprisonment for contempt on the informa- 
 tion of the Attorney-General. 
 
 All peers, whether of Great Britain or of Scotland 
 (5 Anne, c. 8, s. 23), are mthin the statute; including 
 a viscoimt, though such a title of honoiu' was unknown 
 when the statute was passed. Viscount Say ^" Seal v. 
 Stejjhens, Cro. Car. 135 ; Ley, 82. The King liimself 
 is within the 3 Edw. I. c. 34 (12 Eep. 133); but not 
 within 2 Eich. II. st. 1, c. 5, not being " a great man" 
 of his own realm (Cromp. Author. 19, 35). A peeress 
 is not within either statute (Cromp. Author. 34). A 
 baron of the Exchequer (and now any judge of the 
 Supreme Coui't of Judicature) is within the statutes. 
 Of course the rank or dignity which entitles the plaintiff 
 to sue in Scandalum 3Iagnatiim must have been attained 
 before the words complained of were published. 
 
 Although the words of the statute are " horrible and false 
 hes," yet they have been strained to cover Avords which in no 
 way affect the life or dignity of the peer, but which are merely 
 uncivil expressions, expressing general disesteem for his lordship. 
 For it is alleged that such expressions, though not likely to 
 result in general discord, and the " quick subversion of the
 
 136 SCANDALUM JMAGNATUM. 
 
 realm," yet impugn and vilify the honour of the nobles, and 
 tend to provoke to a breach of the peace. [But see the remarks 
 of Atkins, J., in 2 Mod. 161 — 165. Lord Tovmsliend v. Dr. 
 Hughes.] The words also were supposed to echo through the 
 kingdom, being spoken of a peer of the realm ; and the plaintiff, 
 therefore, had this further privilege that he could lay the venue 
 where he pleased, and was not bound like an ordinary plaintiff 
 to try in the county where the words were spoken. 
 
 Illustration. 
 
 Words complained of : — " I value my Lord Marquess of Dorchester no 
 more than I xslwe the dog at my foot." Held that the action was well laid 
 in Scandalum Magnatum, the plaintiff being a Marquess. But a private 
 j)erson would have had no action for such words without proof of special 
 damage, as they merely show the esteem in which the defendant held him. 
 
 Proby V. Marquess of Dorchester (m error), 1 Levinz, 148. 
 
 Lord Falkland v. Pliip^s, 2 Comyns, 439 ; 1 Vin. Abr. 549. 
 
 But the civil proceeding under these statutes is now quite 
 obsolete. This may be, as alleged in Russell on Crimes, 5th 
 cd., vol. iii., p. 203, n., because the nobility prefer "to waive 
 their privileges in any action of slander, and to stand upon 
 the same footing, with respect to civil remedies, as their 
 fellow subjects." Or it may possibly be due to the decision in 
 Lord: Peterhorougli v. Williams, 2 Shower, 506, or in Butt's ed., 
 23. 650, that in scandalum magnatum no costs are to be given 
 to the plaintiff, though the verdict be for him. I believe no 
 •such action has been brought since 1710. {The Duke of 
 Richmond v. Costeloiv, 11 Mod. 235.)
 
 CHAPTER Y. 
 
 SLANDER OF TITLE, OR WORDS CONCERNING THINGS. 
 
 Words cannot be defamatory unless they directly 
 affect some person ; either in his individual capacity, or 
 in his office, profession, or trade. Sometimes no doubt 
 an attack on a thing may be an indirect attack upon an 
 individual; and may therefore be actionable, as defama- 
 tory of him. Thus where the defendant said of the 
 plaintiff: "He is a cheat; he has nothing but rotten 
 goods in his shop;" this was rightly held a slander on 
 the plaintiff in the way of his trade [Burnet \. Wells 
 (1700) 12 Mod. 420); for the words clearly imputed 
 that the defendant was aware of the imsatisfactory 
 natiu-e of his wares, and yet continued to foist them on 
 the public. So to charge a tradesman with wilfully 
 adulterating the goods he sells is clearly an attack on 
 him as well as on his goods, and would therefore be 
 actionable without special damage. {Jesson v. Hayes 
 (1636) EoU. Abr. 63. See also Ingram v. Laivson, 6 
 Bing. N. C. 212 ; 8 Scott, 478, and other cases cited, 
 ante pp. 32 — 34.) 
 
 But wholly apart from these cases there is a branch of 
 the law (generally known by the inappropriate but con- 
 venient name — Slander of Title) which permits an 
 action to be brought against any one who maliciously 
 decries the plaintiff's goods or some other thing belong- 
 ing to him, and thereby produces special damage to the
 
 138 SLAiYDER OF TITLE. 
 
 j)laiiitiff. This is obviously no part of the Iuay of de- 
 famation, for the phiintiif 's reputation remains uninjured; 
 it is really an action on the case for maliciously acting 
 in such a way as to inflict loss upon the plaintiff. All 
 the preceding rules dispensing with proof of malice and 
 sj)ccial damage are therefore wholly inapplicable to cases 
 of this kind. Here, as in all other actions on the case, 
 there must be ct damnum et injuria. The injuria consists 
 in the unlawful words maliciously spoken, and the 
 damnum is the consequent money loss to the plaintiff. 
 
 I. Slander of title proper. 
 
 "Where the plaintiff possesses an estate or interest in 
 any real or personal property, an action lies against any 
 one who maliciously comes forward and falsely denies or 
 imjDugns the plaintiff's title thereto, if thereby damage 
 follows to the plaintiff. [Pater v. Baker^ 3 C. B. 869 ; 
 16 L. J. C. P. 124; 11 Jur. 370.) 
 
 The statement must be false ; if there be such a flaw 
 in the title as the defendant asserted, no action lies. 
 And the statement must be malicious ; if it be made in 
 the hand fide assertion of defendant's own right, real or 
 supposed, to the property, no action lies. But whenever 
 a man unnecessarily intermeddles with the affairs of 
 others with which he is Avholly unconcerned, such 
 officious interference will be deemed malicious and he 
 will be liable, if damage follow. Lastly, special damage 
 must be j)roved, and shown to have arisen from de- 
 fendant's words. And for this it is general^ necessary 
 for the plaintiff to prove that he was in act of selling 
 his property either by public auction or private treaty, 
 and that the defendant by his words prevented an 
 intending purchaser from bidding or completing. {Tas- 
 hirgJi V. Day; Cro. Jac. 481; Lowe y. Harewood', Sir 
 W. Jones, 196 ; Cro. Car. 140.) So proof that plaintiff'
 
 SLAXDER OF TITLE. 139 
 
 wished to let his lands and that the defendant prevented 
 an intending tenant from taldng the lease will be suffi- 
 cient. But a mere apprehension that plaintiff's title 
 might be drawn in question, or that the neighboiu'S 
 placed a lower yalue on plaintiff's lands in their own 
 minds in consequence, the same not being offered for 
 sale, will not be sufficient evidence of damage. " This 
 action lietli not but by reason of the prejudice in the 
 sale." (Per Fenncr, J., in Bold v. Bacon^ Cro. Eliz. 
 346.) The special damage must always be such as 
 naturally or reasonably arises from the use of the words. 
 Haddon V. Lott, 15 C. B. 411 ; 24 L. J. C. P. 49 : see 
 post, c. X. 
 
 It makes no difference whether the defendant's words 
 be spoken or written or printed ; save as aff'ecting the 
 damages, which should be larger where the publication 
 is more permanent or extensive, as by advertisement. 
 {Malachy v. ^oper is another, 3 Bing. K. C. 371 ; 3 
 Scott, 723; 2 Hodges, 217.) 
 
 The property may be either real or personal ; and the 
 plaintiff's interest therein may be either in possession or 
 reversion. It need not be even a vested interest, so long 
 as it is anything that is saleable or that has a market 
 value. 
 
 In one or two old cases it seems to have been held that no 
 actual present damage need be proved. "The law gives an 
 action for but a possibility of damage, as an action hes for calling 
 an heir-apparent, 'bastard.'" Per Wylde, J., in Turner v. 
 Sterling (1671), 2 Vent. 26 ; Anon. 1 Roll. Abr. 87. See 
 Humfreys v. Stanfield or Btrid field (1688), Cro. Car. 469 ; 
 God]). 451 ; Sir Wm. Jones, 888 ; 1 Roll. Abr. 38. Banister 
 V. Banister, 4 Rop. 17. But even in Turner v. Sterling, 
 Vaughan, C.J., says :— " I take it that 'tis not actionable to call 
 a man bastard while his father is alive ; the books are cross in 
 it." 2 Vent. 28. Both dicta, were merely ohiter. And in 
 Onslov) v. Home, 8 Wils. 188 ; 2 W. Bl. 753, De Grey, C. J.,
 
 140 SLANDER OF TITLE. 
 
 sa3's : — " I know of no case Avhere ever an action for words was 
 grounded upon eventual damages which may possibly happen to a 
 man in a future situation." There is no case precisely in point 
 since 1638 ; but the tendency of all modern decisions is against the 
 view of Wylde, J., which must now, I think, be deemed obsolete. 
 There is clearly no reason wh}- a man who has no estate in 
 the lands, but only a mere expectancy, should be allowed an 
 action, whilst he in whom an estate is vested must prove special 
 damage or be nonsuited. Of course, if the heir-apparent has in 
 fact been disinherited in consequence of defendant's words, the 
 special damage is clear and the action lies. 
 
 Illustrations. 
 
 Lands were settled on D. in tail, remainder to the plaintiff in fee. D. 
 Leing an old man and childless, plaintiff was about to sell his remainder to 
 A., Avhen the defendant interfered and asserted that D. had issue. A. con- 
 sequently refused to buy. Held that the action lay. 
 
 Bliss V. Stafford, Owen, 37 ; Moore, 188 ; Jenk. 247. 
 
 The plaintifi''s father being tenaut-in-tail of certain lands, which he was 
 about to sell, the purchaser oflered the j^laintiff a sum of money to join in 
 the assurance so as to estop him from attempting to set aside the deed, 
 should he ever succeed to the estate taU ; but the defendant told the pur- 
 chaser that the plaintiff was a bastard, wherefore he refused to give the 
 plaintiff anything for his signature. Held that the plaintiff had a cause of 
 action, though he was the youngest son of his father, and his chance of 
 succeeding therefore remote. 
 
 Vuughan v. Ellis, Cro. Jac. 213. 
 
 Plaintiff succeeded to certain lands as heir-at-law; the defendant asserted 
 that he was a bastard ; plaintiff was in consequence put to great expense to 
 defend his title. 
 
 Elbororv v. Allen, Cro. Jac. 642. 
 
 The defendant falsely represented to the bailiff of a manor that a sheep of 
 the plaintiff was an estray, in consequence of which it was wrongfully 
 seized. Held that an action on the case lay against him. 
 Newman v. Zachary, Aleyn 3. 
 
 The plaintiff was desirous to sell his lands to any one who would bay 
 them, when the defendant said that the plaintiff had mortgaged all his 
 lands for £100, and that he had no power to sell or let the same. No 
 special damage being shown, judgment was stayed. It was not proved 
 that any one intending to buy plaintiff's lands heard defendant speak the 
 words. 
 
 Manning v. Avery (1674), 3 Keb. 153 ; 1 Vin. Abr. 553. 
 
 The plaintiff was possessed of tithes which he desired to sell ; the defen- 
 dant falsely and maliciously said : — " His right and title thereunto is 
 nought, and I have a better title than he." As special damage it was
 
 SLANDER OF TITLE. 141 
 
 alleged that the plaintiff " was likely to sell, and was injured by the words; 
 and that by reason of the defendant's speaking the words, the plaintiff' could 
 not recover his tithes." Helil insufiicient. 
 
 Gam V. GoUing (1649), Style, 169, 176. 
 
 Lawv. Hanmod (1629), Sir Wm. Jones, 196 ; Palm. 529 ; Cro. 
 Car. 140. 
 The j^laintift' was the assignee of a beneficial lease, whicli he expected 
 would realize i!lOO. But the defendant, the superior landlord, came to the 
 sale, and stated publicly : — " The whole of the covenants of this lease are 
 broken, and I have served notice of ejectment ; the premises will cost £70 
 to put them in repair." In consequence of this statement the property 
 fetched only 35 guineas. Rolfe, B., left to the jury only one question, 
 Was the defendant's statement true or false ? and they found a verdict for 
 the jjlaintiff ; damages, £40. But the Court of Exchequer granted a new 
 trial on the ground that two other questions ought to have been left to the 
 jury as well: — Was the statement or any part of it made maliciously? 
 and, Did the special damage arise from such malicious statement or from 
 such jjart of it as was malicious I 
 
 Brook V. Rmvl, 4 Exch. 521 ; 19 L. J. Ex. 114. 
 
 And see Smith v. Spooner, 3 Taunt. 246. 
 
 Milman v. Pratt, 2 B. & C. 486 ; 3 D. & R. 728. 
 The plaintiff held 160 shares in a silver mine in Cornwall, which he said 
 were worth £100,000. Tollervey and Hay ward each filed a bill in Chan- 
 cery against the plaintiff" and others claiming certain shares in the mine, 
 and praying for an account and an injunction, and for the appointment of 
 a receiver. To these bills plaintiff demurred. Before the demurrers came 
 on for hearing, a j)aragraph appeared in the defendant's newspaper to the 
 effect that the demurrers had been overruled, that an injunction had been 
 granted, that a receiver had been duly appointed, and had actually arrived 
 at the mine ; all of which was quite untrue. A verdict having been 
 obtained for the plaintiff", damages £5 ; the Court of Common Pleas arrested 
 judgment on the ground that there was no sufficient allegation of special 
 damage, and this, although the declaration contained averments to the 
 eft'ect that " the plaintiff' is injured in his rights; and the shares so pos- 
 sessed by him, and in which he is interested, have been and are much 
 depreciated and lessened in value ; and divers persons have believed and 
 do believe that he has little or no right to the shares, and that the mine 
 cannot be lawfully worked or used for his benefit ; and that he hath been 
 hindered and prevented from selling or disposing of his said shares in the 
 said mine, and from working and using the same in so ample and beneficial 
 a manner as he otherwise would have done." 
 
 Malachtj v. Soper and another, 3 Bing. N. C. 383 j 3 Scott, 723 ; 
 2 Hodges, 217. 
 
 And see Hart and another v. Wall, 2 C. P. D. 146 ; 46 L. J. C. 
 P. 227; 25 W. R. 373, ante, p. 34. 
 
 It is iiot actionable for any man to assert liis own
 
 143 SLANDER OF TITLE. 
 
 rights at any time. And eA'cn Avliere tlie defendant fails 
 to prove such right on investigation, still if at the time 
 he spoke he hond fide supposed such right to exist, no 
 action lies. (Carr v. Ducketf, 5 H. & ]N^. 783; 29 L.J. 
 Ex. 4G8.) Hence, whenever a man claims a right or 
 title in himself, it is not enough for the plaintiif to 
 prove that he had no such right; he must also give 
 evidence of express malice (Smith v. Spooner, 3 Taimt. 
 246); that is, he must also attempt to show that the 
 defendant could not honestly have believed in the ex- 
 istence of the right he claimed, or at least that he had 
 no reasonable or probable cause for so believing. If 
 there appear no reasonable or probable cause for his 
 claim of title, still the jury are not bound to find malice ; 
 the defendant may have acted stupidly, yet from an 
 innocent motive. (Pitt v. Donovan, 1 M. & S. 648 ; 
 StcM'ard V. Yoiin(/; L. E. 5 C. P. 122; 31) L. J. C. P. 
 8-5 ; 18 ^y. E. 492 ; 22 L. T. 168 ; Clark v. Molyneux, 
 3 Q. B. D. 237 ; 47 L. J. Q. B. 230; 26 W. E. 104 ; 
 37 L. T. 694.) But in all cases where it appears that 
 the defendant at the time he spoke knew that what he 
 said was false, the jury should certainly find malice ; 
 lies which injure another cannot be told hond fide. 
 [Wufercr v. Freeman, Hob. 266.) 
 
 The law is the same where the defendant is an agent 
 or attorney, and claims for his principal or client a title 
 which he honestly believes him to possess. [Hargrave 
 V. Le Breton, 4 Burr. 2422 ; Steiuard v. Young, L. E. 5 
 C. P. 122 ; 39 L. J. C. P. 85 ; 18 W. E. 492 ; 22 L. T. 
 168.) So where a man hand fide asserts a title in his 
 father or other near relative to whom he or his wife is 
 heir apparent. [Pitt v. Donovan, 1 M. & S. 639 ; Giitsole 
 Y. Mathers, 1 M. & W. 495 ; 5 Dowl. 69 ; 2 Gale, 64 ; 
 1 Tyrw. & Gr. 694.) But where the defendant makes 
 no claim at all for himself or au)^ connection of his, but
 
 MALICE 
 
 143 
 
 asserts a title in some one avIio is a stranger to liim ; here 
 lie clearly is niecldliug in a matter which is no concern of 
 his ; and such officious and unnecessary interference will 
 be deemed malicious. [Pennyman y. liahanJcs^ Cro. Eliz. 
 427 ; 1 Yin. Abr. 551. See Jenkins's Centuries, 247.) 
 " If some portions of the statement Ayhicli a person 
 makes are bond fidc^ but otliers are mala fide, and occa- 
 sion injury to another, the injured party cannot recover 
 damages unless he can distinctly trace the damage as 
 resulting from that part ^vhich is made 7nald fide.'''' 
 {Per Parke, B., in BrooJc v. Putivl, 4 Ex. 524.) So if 
 part be true and part false, ih. 523. 
 
 Illustrations. 
 
 Plaintiff liad purcliased the manor and castle of H. in fee from Lord 
 Audley, and was about to demise them to Ralj)!! Egerton for a term of 
 twenty-two years, when the defendant, a widow, said, " I have a lease of 
 the castle and manor of H. for ninety years ; " and she showed him what 
 purported to he a lease from a former Lord Audley to her husljand for a 
 term of ninety years. This lease was a forgery; but the defendant was not 
 aware of it. Held that no action lay for slander of title ; for tlie defendant 
 had claimed a right to the property herself. It would have been otherwise 
 had she known the lease was a forgery. 
 
 8ir G. Gerard v. Dickenson, 4 Eep. 18 ; Cro. Eliz. 197. 
 
 And see Fitzli. Nat. Brev. 116 B. & D. 
 
 Lovett V. JFeller, 1 EoU. 409. 
 If the defendant asserts that plaintiff is a bastard, and that he himselt 
 is the next heir, no action lies. 
 
 Banister v. Banister (1683), 4 Rep. 17. 
 
 Cane v. Golding (1649), Styles, 169, 176. 
 Tlie plaintiff put up for sale by public auction eight unfinished houses in 
 Agar Town. The defendant, a surveyor of roads appointed under the 
 7 & 8 Vict. c. 84, had previously insisted that these houses were not being 
 luiilt by the plaintiff' in conformity with the Act. He now attended the 
 s;de and stated publicly, " I\Iy object in attending the sale is, to inform pur- 
 .hasers, if there are any present, that I shall not allow the houses to be 
 laii.shed until the roads are made good. I have no power to compel the 
 purchasers to complete the roads ; but I have power to prevent them from 
 completing the houses until the roads are made good." In consequence 
 (jnly two of the carcasses were sold ; and they realized only £35 each, 
 instead of £65. The jury found a verdict for the plaintiff for £18 12s. 
 But the Court of C. P. held that there was no evidence of malice to go to 
 tlu- jury. For malice is not to be inferred fruni the circumstance of the
 
 144 SLANDER OF TITLE. 
 
 defendant having acted upon an incorrect view of his duty, founded upon 
 an erroneous construction of the statute. 
 
 Fater v. Baktr, 3 C. B. 831 ; 16 L. J. C. P. 124 ; 11 Jur. 370. 
 Hargram v. Le Breton, 4 Burr. 2422. 
 The plaintiff' was the widow and administratrix of her deceased husband, 
 and advertised a sale of some of his property. Defendant, an old friend 
 of the husband, thereupon put an advertisement in the papers offering a 
 reward for the production of the will of the deceased. The defendant sub- 
 sequently called on the solicitor of the deceased, and was assured by him 
 there was no will ; but, in spite of this, the defendant attended at the sale 
 and made statements which effectually prevented any person present from 
 bidding. After waiting twelve months, the plaintiff again put the same 
 property xip for sale, and defendant again stopped the auction. Cockburn, 
 C. J., left it to the jury to say whether, after the interview with the plain- 
 tiff's solicitor, defendant could still possess an honest and reasonable belief 
 that the deceased had left a will. The jury found that he had not that 
 belief. Verdict for the plaintiff. Damages, £54 7s. 
 Atkins V. Perrin, 3 F. & F. 179. 
 The defendant had a subsisting patent for the manufacture of spooling 
 machines; so had the plaintiff. The defendant wrote to certain manufac- 
 turers, customers of the plaintiff, warning them against using the plaintiff's 
 macliine, on the ground that it was an infringement of the defendant's 
 patent. Held that "tlie action could not lie unless the plaintiff affirmatively 
 proved that the defendant's claim was not a bond fide claim in support of a 
 right which, with or without cause, he fancied he had, but a maid fide and 
 malicious attempt to injure the plaintiff by asserting a claim of right 
 against his own knowledge that it was without any foundation." Evidence 
 to show that tlie defendant's patent, though subsisting, was void for want of 
 novelty, was not admitted, as being irrelevant in this action. 
 
 Wren v. Weild, L. E. 4 Q. B. 73(\ 737 ; 10 B. & S. 51 ; 38 L. J. 
 
 Q. B. 88, 327 ; 20 L. T. 277. 
 And see Dicks v. Brooks, 15 Ch. D. 22 ; 49 L. J. C'h. 812 ; 29 
 
 W. R 87 ; 40 L. T. 710 ; 43 L. T. 71. 
 Ilaniniersmith Bkating Rink Co. v. Dublin Skating Eink Co., 10 
 Ir. R. Eq. 235. 
 But a patentee is not entitled to publish statements that he intends to 
 institute legal proceedings in order to deter persons from purchasing alleged 
 infringements of his patent, unless he does honestly intend to follow up 
 such threats by really taking such proceedings. 
 
 Rollms V. Hinks, L. R. 13 Eq. 355 ; 41 L. J. Ch. 358; 20 W. R. 
 
 287 ; 26 L. T. 56. 
 Axmann v. Lund, L. R. 18 Eq. 330 ; 43 L. J. Ch. 655 ; 22 
 
 W. R. 789. 
 
 Halsey v. Brotherhood, 15 Ch. D. 514 ; 49 L. J. Ch. 786 ; 29 
 
 W. R. 9 ; 43 L. T. 366. 
 
 A. died possessed of furniture in a beer-shop. His widow, without 
 
 taking out administration, continued in possession of the beer-shop for 
 
 three or four years, and then died, having whilst so in possession conveyed
 
 WORDS CONCERNING THINGS. 145 
 
 all the furniture by bill of sale to her landlords by way of security for a 
 debt she had contracted with them. After the widow's death, the plaintiff 
 took out letters of administration to the estate of A., and informed the 
 defendant, the landlords' agent, that the bill of sale was invalid, as the 
 ■widow had no title to the furniture. Subsequently the plaintiff was about 
 to sell the furniture by auction, when the defendant interposed to forbid 
 the sale, and said that he claimed the goods for his principals under a bill 
 of sale. On proof of these facts, in an action for slander of title, the plain- 
 tiff was nonsuited. Held that the mere fact of the defendant's having been 
 told before the sale that the bill of sale was invalid, was no evidence of 
 malice to be left to the jury, and that the plaintiff was therefore properly 
 nonsuited. 
 
 Steward v. Young, L. R. 5 C. P. 122 ; 39 L. J. C. P. 85 ; 18 
 W. R. 492 ; 22 L. T. 168. 
 
 And see Blackham v. Pmjh, 2 C. B. 611 ; 15 L. J. C. P. 290. 
 
 II. Slander of Goods manufactured or sold hj another. 
 
 " An untrue statement, disparaging a man's goods, 
 published without lawful occasion, and' causing him 
 special damage, is actionable." This is laid down as a 
 general principle by Bramwell, B., in Western Counties 
 Manure Company v. Lawes Chemical Manure Company.^ 
 L. E. 9 Ex. 218, 222 ; 43 L. J". Ex. 171 ; 23 W. E. 5 ; 
 and it applies although no imputation is cast on the 
 plaintiff's private or professional character. Kor in the 
 opinion of the same learned Judge is it necessary to 
 prove actual malice ; it is sufficient if it be made " with- 
 out reasonable cause." 
 
 At the same time it is not actionable for a man to 
 commend his own goods ; or to advertize that he can 
 make as good articles as any other j)erson in the trade, 
 (Harman v. Delamj, 2 Str. 898 ; 1 Barnard. 289 ; Eitz. 
 121.) 
 
 In Evans v. Harloiv (1844), 5 Q. B. 624 ; 13 L. J. Q. B. 
 120 ; Day. & M. 507, wliich appears to be the earliest case of 
 this kind, no special damage was alleged ; and the only point 
 decided was that the words were not a libel on the plaintiff in 
 the way of his trade, and that therefore no action lay. The 
 Court did not expressly decide that, had special damage been 
 
 L
 
 146 SLANDER OF TITLE. 
 
 alleged, the declaration would have been good, though Patteson, 
 J., was clearly of that opinion, as appears from his remarks on 
 p. 633. These remarks were cited to the Court in the next 
 case of the kind, Young 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. But 
 there the libel did not impute that the plaintiff's oil was bad 
 in itself, but merely alleged that it was inferior to that of the 
 defendant ; and, again, it was held that no action lay. Black- 
 burn, J., asks (3 B. & S. 269) : — " Is there any case where an 
 action has been maintained for slander, written or verbal of 
 goods, unless where the slander is of the title to them, and 
 special damage has resulted ? " But the dicta of the other judges 
 fully bear out the head-note : — " Semhle, that if a person falsely 
 and maliciously disparages an article which auotlier manu- 
 factures or vends, and special damage results therefrom, an 
 action will lie, although in so doing no imputation was cast on 
 the personal or professional character of the manufacturer or 
 vendor." And this semhle may now, I think, be considered as 
 settled law, since the decision in Western Counties Manure 
 Co. v. Latues Chemical Manure Co., supra. 
 
 It is unfortunate that in the report of Young v. Macrae, in 
 the Law Journal (32 Q. B. p. 8), Cockburn, C. J., is represented 
 as stating : — " I am very far from saying that if a trader 
 maliciously, and falsely to his own knowledge, publishes matter 
 disparaging an article manufactured or sold by another, even if 
 he makes no reflection upon the character, trade, or profession 
 of that other, and if special damage followed, that there would 
 not be an actionable libel ; for a most grievous wrong might be 
 done in that way, and the person injured ought to have a 
 remedy by an action." The words "falsely to his own know- 
 ledge " seem to imply that fraud or misrepresentation is essential 
 to the cause of action ; and it is on the authority of this passage, 
 no doubt, that I find it stated in Addison on Torts (3rd ed., 
 p. 787 ; 4th ed., p. 796 ; 5th ed,, p. 184) : " Disparaging criti- 
 cisms by one tradesman upon the goods of a rival tradesman I 
 are not actionable, unless it is proved that they have been f 
 maliciously and fraudv.lently onade, and were false to the i 
 knowledge of the party at the time they ivere made.'" But in 
 no other place in the Law Journal Report is there any hint that 
 a scienter must be proved, although the Lord Chief Justice
 
 I 
 
 irORDS COA'CERNING THINGS. 147 
 
 gives several instances during the argument and later in his 
 judgment, in which in his opinion an action would lie. That 
 the statement was false to the knowledge of the defendant is 
 cogent evidence of malice ; but surely any other evidence of 
 malice would be sufficient. In Best & Smith, the passage 
 cited above is given as follows : — " I am far from saying that if 
 a man falsely and maliciously makes a statement disparaging 
 an article which another manufactures or vends, although in so 
 doing he casts no imputation on his personal or professional 
 character, and thereby causes an injury, and special damage is 
 averred, an action might not be maintained. For although 
 none of us are familiar with such actions, still we can see that a 
 most grievous wrong might be done in that way, and it ought 
 not to be without remedy ; " (3 B. & S. 269). And so in the Law 
 Times Reports (7 L. T. 800), the words are merely "falsely and 
 maliciously;" in the Jurist (9 Jur. N. S. 539) merely "a dis- 
 paraging notice ; " though the Weekly Reporter (11 W. R. 63) 
 contains in addition to " falsely and maliciously," the words 
 " by statements he knows to be false." In Western Counties 
 Manure Go. v. Leaves Manure Co., the declaration before the 
 Court did not contain any averment " as the defendants well 
 knew." See the whole pleadings in the Appendix. I conclude, 
 therefore, in spite of the passage cited above from Addison on 
 Torts, that the defendant's knowledge of the falsity of his 
 statements at the time he makes them, is immaterial in this 
 action, save as aggravating the damages. 
 
 In Thomas v. Williams, 14 Ch. D. SG4 ; 49 L. J. Ch. 605 ; 
 28 W. R. 983; 43 L. T. 9], Fry, J., decided that to entitle a 
 plaintiff to an injunction to restrain a libel injurious to trade 
 it was not necessary that ho should prove actual damage. 
 
 IllustixUions. 
 
 The (.lefendaiit imljHshed an adveilisement, denying that the plaintifY held 
 any patent for the manufacture of " self-acting tallow .syphons or lubri- 
 cators," and cautioning the public against such lubricators as wasting the 
 taUoAv. No special damage was alleged. Held that the words were not a 
 libel on the plaintiff either generally, or in the way of his trade, but were 
 only a reflection upon the goods sold by him, which was not actionable 
 without special damage. 
 
 Evam V. Harlow, 5 (^ B. 624 ; 13 L. J. Q. B. 120 ; Dav. & M. 
 507 ; 8 Jur. 571 ; ante, p. 33. 
 
 T. 2
 
 148 SLANDER OF TITLE. 
 
 " If a man makes a false statement with resjject to the goods of A., iii 
 comparing his own goods with those of A., and A. suffers special damage, 
 will not an action lie ? " Per Cockburn, C. J., in 
 
 Young and others v. Macrae, 32 L. J. Q. B. 8 ; 
 and counsel answers, " Certainly it would." 
 
 " If a man were to write falsely that what another man sold as Turkish 
 rhubarb was three parts brickdust, and special damage could l)e proved, it 
 might be actionable." Per Cockbiun, C. J., in 
 
 Young and others v. Macrae, 32 L. J. Q. B. 7. 
 The defendant published a certificate by a Dr. Muspratt, who had com- 
 pared the plaintiff's oil with the defendant's, and deemed it inferior to the 
 defendant's. It was alleged that the certificate was false, and that divers cus- 
 tomers of tlie plaintirt"s after reading it had ceased to deal with the plaintiff 
 and gone over to the defendant. Held that the plaintiff' 's oil, even if 
 inferior to the defendant's, might still be very good ; and that the falsity 
 was alleged too generally, and that therefore no action lay. It was con- 
 sistent with the declaration that every word said about the plaintiff's oil 
 should be true, and the only falsehood the assertion that defendant's was 
 superior to it, which would not be actionable. " It is not averred that the 
 defendant falsely represented that the oil of the j^laintiffs had a reddish - 
 brown tinge, was much thicker, and that it had a more disagreeable odour. 
 If that had been falsely represented, and special damage had ensued, an 
 action might have been maintained." 
 
 Young 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. 
 
 The defendants falsely and without lawful occasion published a detailed 
 
 analysis of the plaintiffs' artificial manure and of their own, in which the 
 
 plaintiffs' manure was much disparaged and their own e.xtolled. Special 
 
 damage having resulted, Iield that the action lay. 
 
 Western Counties Manure Co. v. Laives Chemical Manure Co., L. R. 
 
 9 Ex. 218 ; 43 L. J. Ex. 171 ; 23 W. R. 5. 
 See Thorley's Cattle Food Co. v. Massam, 6 Ch. D. 582 ; 46 L. J. 
 Ch. 713 ; 14 Ch. D. 763 ; 28 W. R. 295, 966 ; 41 L. T. 542 ; 
 42 L. T. 851. 
 The defendant stated in Ireland that the plaintiff's ship was imsea worthy, 
 consequently her crew refused to proceed to sea in her, and a negociation 
 for the sale of her fell through. The ship was in England. But it was held 
 that this fact would not give an English Court jurisdiction. 
 
 Caseij 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 damage 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 probable con-
 
 WORDS PRODUCING DAMAGE. 149 
 
 sequence of the words, within the meaning of the strict 
 rules laid down in c. X., pp. 321 — 333. But as such 
 cases are clearly beyond the scope of the present treatise, 
 I merely subjoin a few instances. 
 
 IllustTations. 
 
 If a man menace my tenants at will, of life and niemlier, per quod they 
 depart from their tenures, an action upon the case will lie against him, Lut 
 the menace without their departure is no cause of action. 
 
 Conesby's Case, Year Book, 9 Hen. VII., pp. 7, 8 ; 1 IioII. ALr. 
 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 EoU. Abr. 108. 
 
 Tarleton and others v. McGawley, Peake, 270. 
 
 And see Sjmnghead Spinning Co. v. Riley, L. E. 6 Eq. 551 ; 37 
 
 L. J. Ch. 889 ; 16 W. R. 1138 ; 19 L. T. 64. 
 Skinner y. 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 boys from going to school, 
 that schoolmaster might have an action for the loss of his scholars." Per 
 Holt, C. J., in 
 
 Keble v. HickerimjiU, 11 East, 576, n. 
 The defendant wrongfully and maliciously caused certain persons who 
 had agreed to sell goods to the plaintiff to refuse to deliver them, by assert- 
 ing that he had a lien upon them, and ordering those persons to retain the 
 goods until further orders from him, he well knowing at the time that he 
 had no lien. Held that the action was maintainable, though the persons 
 who had the goods were under no legal obligation to obey the orders of the 
 defendant, and their refusal was their own spontaneous act. 
 Green v. Button, 2 C. ]\I. & R. 707.
 
 CHAPTER VI. 
 
 PUBLICATION. 
 
 Publication is the communication of the defamatory 
 words to some third person. It is essential to the plain- 
 tiff's case that the defendant's words should be expressed; 
 the law permits us to think as badly as we please of oiu- 
 neighbours so long as we keep our uncharitable thoughts 
 to ourselves. Merely composing a libel is not action- 
 able unless it be published. And it is no publication 
 when the words are only communicated to the person 
 defamed; for that cannot injure his reputation. A 
 man's reputation is the estimate in which others hold 
 him; not the opinion Avhich he has of himself. The 
 attempt to diminish our friend's good opinion of himself, 
 though possibly unpleasant to him, is yet generally 
 ineffectual, and is certainly not actionable, unless some- 
 one else overhears. There must be a communication by 
 the defendant to some third person, other than the plain- 
 tiff. {Barroio v. Lewellin, Hob. 62.) And the com- 
 munication, whether it be in words, or by signs, gestiu-es, 
 or caricature, must be intelligihU to such third jDcrson. 
 If the words used be in the vernacular of the place of 
 publication, it will be presumed that such third jjersons 
 understood them, until the contrary be proved. And it 
 Avill be presumed that they understood them in the 
 sense which such words properly bear in then- ordinary 
 signification, unless any reason appear for assigning
 
 PUBLICATION. 151 
 
 them a difterent meaning. Making it kno^m to one 
 individual is a sufficient ^'publishing," provided that 
 that one is not the person defamed. Such publication 
 must of course be prior to the date of the issuing of the 
 writ. 
 
 Illustvationfi. 
 
 To shout defamatory words 011 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. 
 
 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 conies into the hands of anyone who does understand that 
 language, or who gets them explained or translated to him. 
 
 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 answerable for anything the plaintiff may choose to do with the letter 
 after it has once safely reached his hands. 
 Barroiv v. Lewellin, Hob. G2. 
 In an American case the i^laintiff, 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 
 plaintiff's friend, admitted that he had written it, Held, no publication hij 
 the defendant to the plaintiff's friend. 
 
 Fonville v. Nease, Dudley, S. C. 303. 
 But it is otherwise if a message be sent to the plaintiff by telegraph ; the 
 contents of the telegram are necessarily communicated to all the clerks 
 through whose hands it passes. So with a postcard. 
 
 Whitfield and others v. S. E. By. Co., E. B. & E. 115 ; 27 L. J. 
 
 Q. B. 229 ; 4 Jur. N. S. 688. 
 Williamson v. Freer, L. E. 9 C.P. 393 ; 43 L. J. C. P. 161 ; 22 
 
 W. E. 878 ; 30 L. T. 332. 
 Mohinson v. Jones, 4 L, E. 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 plaintifi's clerk lawfully 
 and in the usual course of business. Held, a publication by the defendant 
 to the plaintiff's clerk. 
 
 Delacroix v. Thevenot, 2 Stark. 63. 
 So where the defendant, before posting the letter to the plaintiff, had 
 it copied. Held, a pulJication by the defendant to his own clerk who 
 copied it. 
 
 Keene v. Buff, 1 Clarke (Iowa), 482.
 
 152 PUBLICATION 
 
 So where the defendant wrote a letter to the phxintiff himself, but read it 
 to a friend before posting it. 
 
 Smjder v. Andrews, 6 Barbour (New York), 43. 
 AlcComhs V. Tuttle, 5 Blackford (Indiana), 431. 
 The delivery of a newspaper containing the libel to the proper officer of 
 the Commissioners of Stamps and Taxes for revenue purposes is a sufficient 
 publication of the libel ; although the proprietor of the paper was required 
 by law so to deliver it ; for the stamp officer " would at all events have an 
 opportunity of reading " the libel. 
 
 E. V. AmiMit, 4 B. & C. 35 ; 6 D. & K. 125. 
 So the delivery of a manuscript to be printed is a sufficient publication ; 
 even 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 harsli decision, as the compositor does 
 not attend to the substance of the manuscript, but sets it up in copy 
 mechanically ; but it has recently been acted on in America. 
 Trumhdl v. Gfibbo7is, 3 City Hall Kecorder, 97. 
 And see IVatts v. Fraser and another, 7 Ad. & E. 223 ; 7 C. & P. 
 369 ; 1 M. & Rob. 449 ; 2 N. & P. 157 ; 1 Jur. 671 ; W. W. 
 & D. 451. 
 Lawless v. The 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. 
 Lake v. King, 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. 
 
 E. V. Beere, Carth. 409 ; 12 Mod. 219 ; Holt, 422 ; Salk. 417 ; 1 
 
 Rav. 414. 
 And see 11 Hargrave's St. Tr. 322, sub Entich v. Carrington. 
 
 Although husband and wife are generally to be considered 
 one person in actions of tort as well as of contract {Pltilllps 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 defama- 
 tory of her husband, a publication in law. ^yenlnal^ v. Ash, 
 13 C. B. S36 ; 22 L. J. C. P. 190 ; 1 C. L. R. 592 ; 17 Jurist, 
 579. And it is submitted that similarly a communication to 
 the husband of a charge against his wife is a sufficient publica- 
 tion. The doubt suggested by Jervis, C. J., in Wenrtian v. Ash, 
 must mean that he considered a communication to the husband 
 of a report prejudicial to his wife was iJriTnd facie privileged 
 as being a friendly act ; not that it was no publication. The 
 converse case of the defendant and his wife has never been 
 decided in England. Is it a publication if a man tells his wife
 
 PUBLICATION. 153 
 
 what he thinks of his neighbours ? Possibly such a communi- 
 cation would be deemed to enjoy the same privilege as that 
 which is supposed to attacli to matters divulged by a Roman 
 Catholic to his priest under the seal of confession. The question 
 seems never to have arisen in England ; probably because in 
 every such case there has been an immediate and undoubted 
 publication of the same slander, or an exaggerated version 
 thereof, 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 confidence " is privileged. 
 {Trumbull v. Gibbons, 3 City Hall Recorder, 97.) 
 
 The plaintiff must prove a publication by the de- 
 fendant m fact That the thiixl person had the oppor- 
 tunity of reading the libel 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 desired and 
 intended publication. 
 
 Illustrations. 
 
 The delendant 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 pubhcation. 
 
 ChttterhucJc 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 himself, who alone was libelled. No publication. 
 Fonville v. Nease, Dudley, S. C. 303 (American). 
 Posting up a libellous placard and taking it down again before anyone 
 could read it, is no publication ; but if it was exhibited long enough for 
 anyone to read it, then it is a question of fact for the jury whether anyone 
 actually did read it. 
 
 So it is no defence that the third person was not 
 intended to overhear the slander or to read the libel, if 
 in fact he has done so. An accidental or inadvertent 
 communication is quite sufficient. (See Shcpheard v. 
 Tf/»Ya/ccr,L.E. lOC.P. 502; 32L.T. 402; Q.l.ante.^.l.)
 
 154 PUBLICATION 
 
 Illustrations. 
 
 The defendant by mistake directed and posted a liLellous letter to the 
 plaintiff's employer instead of to the plaintiff himself. Held a publication. 
 
 Fox V. Broderick, 14 Ir. C. L. Rep. 453. 
 Rev. Samuel Paine sent his servant to his study for a certain paper 
 which he -wished to show to Brereton ; the servant by mistake brought a 
 libellous epitaph on Queen Mary, which Paine inadvertently handed to 
 Brereton, suj^posiug it to be the paper for which he sent ; and Brereton 
 read it aloud to Dr. Hoyle. This would probably be deemed a publication 
 by Paine to Brereton in a civil case — (Note to Mayne v. Fletcher, 4 Man. 
 & Ry. 312) ; but would not be sufficient in a criminal case. 
 
 E. V. Paine (1695), 5 Mod. 163. 
 For in a criminal case it is essential that there should be a guilty intention. 
 
 E. V. Lord Abingdon, 1 Esp. 228. 
 
 See also Brett v. JVatson, 20 W. R. 723. 
 
 BMe V. Stevens, 4 F. & F. 232 ; 11 L. T. 543. 
 But if I compose or copy a libel, and keep the manuscript in my sti;dy, 
 intending to show it to no one, and it is stolen by a burglar and published 
 by him ; it is submitted that there is no publication by me, either in civil 
 or criminal proceedings. 
 
 See JFeir v. Hoss, 6 Alabama, 881. 
 But it would be a publication by me, if through any default of mine it got 
 abroad, whether through my negligence or folly. 
 
 As soon as the manuscript of a libel lias passed out of 
 the defendant's possession and control, it is deemed to be 
 published, so far as the defendant is concerned [Pe?- 
 Holroyd, J., in 7?. \. Biirdetf, 4 B. & Aid. 143) ; provided 
 it does not pass immediately and unread into the pos- 
 session and control of the plaintiff. 
 
 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. 
 
 TVard v. Smith, 6 Bing. 749 ; 4 M. & P. 595 ; 4 C. & P. 302. 
 
 Clcgcj V. Laffer, 3 Moore & Scott, 727 ; 10 Bing. 250. 
 
 TVarren v. )Varren, 4 Tyr. 850 ; 1 C. M. & R. 250. 
 
 Shijiley v. Todhunter, 7 C. & P. 680. 
 So " it I send a manuscript to the printer of a periodical publication, and 
 do not restrain the printing and publishing of it, and he does print and 
 publish it in that pul)lication, I am the publislier," and as such liable to an 
 action. Per Lord Erskine in 
 
 Burdett v. Abbot, 5 Dow, H. L. 201 ; 14 East, 1. 
 
 See also E. v. Lorctf, 9 C. & P. 462.
 
 PER ALIUM. 155 
 
 Every one who requests, procures, or commands 
 another to publish a libel is answerable as though he 
 published it himself. And such request need not be 
 express, but may be inferred from the defendant's 
 conduct in sending his manuscript to the editor of a 
 magazine, or making a statement to the reporter of a 
 newspaper, with the Imowledge that they will be sure 
 to publish it, and without any effort to restrain their so 
 doing. And it is not necessary that the defendant's 
 communication be inserted verbatim; so long as the 
 sense and substance of it appear in print. 
 
 This rule is of great vahie in cases where the words employed 
 are not actionable when spoken ; but are so if written. Here 
 though the proprietor of the newspaper is of course liable for 
 printing them, still it is more satisfactory if possible to make 
 the author of the scandal defendant. An action of .slander Avill 
 not lie ; but if he spoke the words under such circumstances as 
 would ensure their being printed, or if in any other way he 
 requested or contrived their publication in the paper, he is liable 
 in an action of libel as the actual publisher. Qui facit per 
 alium facit per se. 
 
 Illustrations. 
 
 If a manuscript in the hanchvriting of the defendant be sent to the 
 printer or puhlislier of a magazine, who prints and publishes it, the defen- 
 dant will be liable for the full damages caused by such publication, although 
 there is no proof offered that he expressly directed the printing and pub- 
 lishing of such manuscrij)t. 
 
 Bond V. Douglas, 7 C. & P. 626. 
 E. V. Lovett, 9 C. & P. 462. 
 Burden v. Ahhot, 5 Dow, H. L. 201 ; 14 East, 1. 
 And this is so, although the editor has cut the article up, omitting the 
 most libellous passages and only publishing the remainder. 
 
 Tarpley v. Blahey, 2 Bing. N. C. 437 ; 2 Scott, 642 ; 1 Hodges, 414. 
 So where Cooper told the editor several good stories against the Rev. 
 J. K. and asked the editor to "show Mr. K. up ;" and 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 Avell. 
 
 R. V. Cooper, 15 L. J. Q. B. 206 ; 8 Q. B. 533. 
 And see Adums v. Kelly, Ry. & Moo. 157 ; and the judgments of 
 Byles and Mellor, .J..T., in the ne.xt case, L. R. 4 Ex. 181—186.
 
 ^56 PUBLICATION 
 
 At the meeting of the hoard of guardians, at which reporters were present, 
 it was stated that tlie plaintiff had turned his daughter out of doors, and that 
 she consequently had been admitted into the workhouse and had become 
 chargeable to the parish. Ellis, one of the guardians, said, " I hope the 
 local press will take notice of this very scandalous case," and requested the 
 chairman, Prescott, to give an outline of it. This Prescott did, remarking, 
 " I am glad gentlemen of the press are in the room, and I hope they will 
 give publicity to the matter." EUis added, " And so do I." From the 
 notes taken in the room the reporters prepared a condensed account which 
 appeared in the local newspapers, and which, though partly in the re- 
 porters' own language, was siibstantially a correct rej)ort of what took place 
 at the meeting. Held by the majority of the Court of Exchequer Chamber 
 (Montague Smith, Keating and Hannen, J.J., Byles and Mellor, J.J., 
 dissenting) that Martin, B., was wrong in directing the jury that there was 
 no evidence to go to the jury that Prescott and Ellis had directed the pub- 
 lication of the account which appeared in the papers. [X.B. — Of the six 
 judges concerned, three were of one opinion, three of the other.] 
 
 Parkes v. Prescott and another, L. R. 4 Ex. 169 ; 38 L. J. Ex. 
 105 ; 17 W. E. 773 ; 20 L. T. 537. 
 
 But though merely composing a libel without pub- 
 lishing it is not actionable, merely publishing it, not 
 having composed it, is actionable. " 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 3Iahner/ \, Bartleij, 3 Camp. 213.) 
 "If one reads a libel, that is no publication of it; or 
 if he hears it read, it is no publication of it ; for before 
 he reads or hears it, he cannot know it to be a libel ; or 
 if he hears or reads it, and laughs at it, it is no publica- 
 tion of it ; or if he writes a copy of it, and does not 
 publish it to others, it is no publication of the libel ; but 
 if after lie has read or heard it, he repeats it, or any part 
 of it, in the hearing of others, or after that he knows it 
 to be a libel, he reads it to others, that is an imlawful 
 publication of it." [Per Lord Coke in John LamVs Case, 
 9 Eep. GO.) 
 
 Every one who prints or publishes a libel may be 
 sued by the person defamed ; and to such an action it 
 is no defence that another wrote it ; it is no defence that 
 it was printed or published b}^ the desire or procurement
 
 IN A XEWS PAPER. 157 
 
 of another, whether that other be made a defendant to 
 the action or not. All concerned in publishing the libel 
 or in procuring it to be published are equally responsible 
 with the author. And printing the libel or causing it to 
 be printed is prima facie evidence of publication. {Bur- 
 dett Y. Abhot^ 5 Dow, H. L. 201 ; Baldwin v. Elphlnston^ 
 2 W. Bl. 1037.) If the libel appear in a newspaper, the 
 proprietor, the editor, the printer, and the author, are all 
 liable to be sued, either separately or together. And 
 that one has been already sued is no defence to an action 
 brought against any of the others in respect of the same 
 libel. {Frescoe v. Majj, 2 F. & F. 123.) Nor should 
 the fact that such actions are pending be taken into con- 
 sideration by the jury in assessing the damage arising 
 from the publication by the present defendant. [Harri- 
 son Y. Pearce, 1 F. & F. 567 ; 32 L. T. (Old S.) 298.) 
 In all cases of joint publication each defendant is liable 
 for all the ensuing damage. And there is no contribu- 
 tion between tort-feasors. So that the j)i'oprietor of a 
 paper sued jointly with his careless editor or with the 
 actual composer of iha libel cannot compel either of his 
 co-defendants to recoup him the damages, which he has 
 been compelled to pay the plaintiff. ( Colhurn y. Patmore, 
 1 C. M. &E. 73; 4 Tyr. 677.) 
 
 But if there be two distinct and separate publications 
 of the same libel, a defendant who was concerned in the 
 first publication, but wholly unconnected with the 
 second, Avould not be liable for any damages which he 
 could prove to have been the consequence of the second 
 publication and in no way due to the first. 
 
 And here I will cite the remarks of Best, C. J., in De Gres- 
 pigny v. Wellesley, 5 Bing. pp. 402 — 406). " If a man receives 
 a letter with authority from the author to publish it, the person 
 receiving it will not be justified, if it contains Hbellous matter, 
 in inserting it in the newspapers. No authority from a third
 
 158 PUBLICATION 
 
 person will defend a man against an action brought by a person 
 who has suffered from an unlawful act. If the receiver of a 
 letter publish it without authority, he is, from his own motion, 
 
 the wilful circulator of slander If the person receiving a 
 
 libel may publish it at all, he may publish it in whatever 
 manner he pleases ; he may insert it in all the journals, and 
 thus circulate the calumny through every region of the globe. 
 The effect of this is very different from that of the repetition of 
 oral slander. In the latter case, what has been said is known 
 only to a few persons, and if the statement be untrue, the im- 
 putation cast upon any one may be got rid of ; the report is not 
 heard of beyond the circle in which all the parties are known, 
 and the veracity of the accuser, and the previous character of 
 the accused, will be properly estimated. But if the report is to 
 be spread over the world by means of the press, the malignant 
 falsehoods of the vilest of mankind, v/hich would not receive the 
 least credit where the author is known, woidd make an im- 
 pression which it would require much time and trouble to erase, 
 and which it might be difficult, if not impossible, ever com- 
 pletely to remove Before he gave it general notoriety by 
 
 circulating it in print, he should have been prepared to prove 
 its trutli to the letter ; for he had no more right to take awa}-- 
 the character of the plaintiff, without being able to prove the 
 truth of the charge that he liad made against him, than to take 
 his property without being able to justify the act by which he 
 possessed himself of it. Indeed, if we reflect on the degree of 
 suffering occasioned by loss of character, and compare it with 
 that occasioned by loss of property, the amount of the former 
 injury far exceeds that of the latter." 
 
 lllustTat'ions. 
 
 A man may thus be guilty botli of libel ami of slander at the same 
 moment and by the same act ; as, by reading to a public meeting a defama- 
 tory paper written by another. 
 
 Eeanu v. ^towdl, 12 A. & E. 719 ; 6 Jur. 458 ; 4 P. & D. 696. 
 Hudson brought the manuscript of a libellous song to Morgan to liave 
 1000 copies printed ; Morgan printed 1000 and sent 300 to Hudson's shop. 
 Hudson gave several copies to a witness who sung it about the streets. It 
 did not appear in whose writing tlie manuscript was ; but probably not in 
 Hudson's. Hdd that both Hudson and Morgan had published the libel. 
 
 Johnson v. Hudson and Morgan, 7 A. & E. 23,3 ; 1 H. & W. 
 680.
 
 LY A NEWSPAPER. 159 
 
 By the 38 Geo, III., c. 71, s. 17 (now repealed), the proprietor of every 
 newspaper was required to send a copy of every issue to the Stamp Otiice 
 for Revenue purposes ; ]ieM that the delivery of a copy to the officer at the 
 Stamp Office was a sufficient publication of a libel contained in it to 
 render the pro})rietor 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. AriqMit, 4 B. & C. 35 ; 6 D. & R. 125. 
 Mayne v. Fletcher, 9 B. & C. 382 ; 4 Man. & Ry. 312. 
 The proprietor of a newspajier is always liable for whatever appears in 
 its columns ; although the pulilication may have been made ■without his 
 knowledge and in his absence. 
 
 E. V. JFalter, 3 Esp. 21. 
 But now in criminal cases, see 6 & 7 Vict. c. 96, s. 7. 
 
 E, V. Holhrook and others, 3 Q. B. D. 60 ; 4 Q. B. D. 42 ; 47 
 L. J. Q. B. 35 ; 48 L. J. Q. B. 113 ; 26 W. R. 144 ; 27 W. R. 
 313 ; 37 L. T. 530 ; 39 L. T. 536. 
 So is the master printer. 
 
 E. V. Dover, 6 How. St. Tr. 547. 
 So, in England, the acting editor is always held liable. 
 
 Watts V. Fraser and another, 7 C. & P. 369 ; 7 Ad. & E. 223 ; 
 
 1 M. & Rob. -149 ; 2 N. & P. 157 ; 1 Jur. 671 ; W. W. & D. 451. 
 
 In America, however, though the proprietor and printer of a paper are 
 
 always held liable, the editor is, it would seem, allowed to plead as a 
 
 defence that the libel was inserted without his orders and against his will. 
 
 The Comrnonivealth v. Kneeland, Thaclier's C. C. 346. 
 
 Or without any knowledge on his part that the article was a libel on any 
 
 particular individual. 
 
 Smith V. Ashley (1846), 52 Mass. (11 Met.) 367. 
 The proprietor of a newspaper is liable even for an advertisement in- 
 serted and paid for by Bingham ; although the plaintiff is bringing 
 another action against Bingham at the same time. 
 
 Harrison v. Pearce, 1 F. & F. 567 ; 32 L. T. (Old S.) 298. 
 " If you look upon the editor as a person who has published a libellous 
 advertisement incautiouslj'-, of course he is liable." Per Pollock, C.B., in 
 Keyzor and another v. Newcomh, 1 F. & F. 559. 
 If a country newspaper copy and publish a libellous article from a 
 London newspaper, the' country paper makes the article its own, and 
 is liable for all damages resulting from its publication in the countr}\ The 
 fact that it had previously appeared in the London paper is no defence, 
 though it may tend to mitigate the damages. 
 
 Saunders v. Mills, 3 M. & P. 520 ; 6 Bing. 213. 
 Talhutt V. Clarl; 2 M. & Rob. 312. 
 Evidence that the plaintiff had in a previous action recovered damages 
 against the London paper for the same article is altogether inadmissible ; as 
 in that action damages were given only lor the jiublication of the libel in 
 London. 
 
 Oreevy v. Carr, 7 C & P. 64. - 
 
 And sec rrant v. Alynr and olhns, 6 C. & P. 245.
 
 i6o PUB Lie A TION. 
 
 If I compose a libel and leave it in my desk among my papers, and my 
 clerk snrreptitionsly takes a copy and sends it to the newspapers, it is sub- 
 mitted that he alone is liable for the damage caused thereby. I am liable 
 only to such damages as the jury may award for the negligent though unin- 
 tentional publication to my clerk. For although he could not have taken 
 a copy, had I not first written the libel, still the subsequent republication 
 of it is my clerk's own independent act, for the consecpiences of Avhich he 
 alone is liable. ^SVcks, if I in any way encouraged or contrived his taking 
 a copy, knowing that he would be sure to publish it in the newspapers. 
 
 So again every sale or deliyery of a written or printed 
 copy of a libel is a fresli publication ; and every jDerson 
 who sells or gives away a wiitten or printed copy of a 
 libel may be made a defendant, unless, indeed, he can 
 satisfy the jury that he was ignorant of the contents. 
 The onus of proving this lies on the defendant, and 
 where he has made a large profit by selling a great 
 many copies of a libel, it will be very difficult to per- 
 suade the jury that he was not aware of its libellous 
 natui'e. [Chuhh v. Flannagan, G C. & P. 431.) In 
 every other respect it makes no difference in law 
 whether the delivery of the copy was b}" public sale or 
 merely by confidentially showing the libel to a friend. 
 Each is equally a publication. But the jury will, in 
 estimating the damages, attach great importance to the 
 mode of publication : as an indiscriminate public sale of 
 the libel must inflict much more serious injuiy on the 
 plaintiff's reputation. The defendant could not after- 
 wards recall or contradict his statements, did he desire to 
 do so. (See^;^/- Lord Denman, C. J., 9 A. & E. 149.) 
 
 lUiistrations. 
 
 The plaintiff's agent, with a view to the action, called at the office of the 
 
 defendant's newspaper, and made them find for him a copy of the paper . 
 
 that had appeared seventeen years previously, and bought it. Held that . I 
 
 this was a liesh publication by the defendant, and that the action lay in f 
 spite of the Statute of Limitations. 
 
 Duke of Brunsxvick v. Harmer, 14 Q. B. 185 ; 19 L. J. Q. B. 20 ; f 
 
 14 Jur. 110; 3 C. & K. 10. '
 
 REPETITION. i6i 
 
 A porter who, in the course of business, delivers parcels containing 
 libellous hand-bills, is not liable in an action for libel, if shown to be 
 ignorant of the contents of the parcel. 
 
 Bay V. Bream, 2 M. & Rob. 54, 
 for he is but doing his duty in the ordinary way. 
 
 A servant carries a libellous letter for his master, addressed to C It is 
 his duty not to read it. If he does read it, that is a publication by his 
 master to him, although he was never intended to read it. If after reading 
 it he delivers it to C. then this is a publication by the servant to C, for 
 which the person libelled, not being C, can sue either the master, or the 
 servant, or both. If the servant never reads it, but simply delivers it as he 
 was bidden, then he is not liable to any action, unless he either knew «r 
 ought to have known that he was being employed illegally. If he either 
 knew or ought to have known, then it is no defence for him to plead " I 
 was only obeying orders." 
 
 The defendant kept a pamphlet shop ; she was sick and upstairs in bed ; 
 a libel was brought into the shop without her knowledge, and subsequently 
 sold by her servant on her account. She was held criminally liable for the 
 act of her servant, on tlie ground that " the law presumes that the master 
 is acquainted witli wluit his servant does in the course of liis business.'' 
 
 R. V. Bodd, 2 Sess. Cas. 33. 
 
 Nidth Case, Fitzg. 47 ; 1 Barnard, 306. 
 But later judges would not be so strict ; the sickness iipstairs, if properly 
 proved by the defendant, would now be held an excuse. 
 
 R. V. Almo7i, 5 Burr. 2686. 
 
 R. V. Gutch, Fisher, and Alexander, Moo. & Mai. 433. 
 
 And in criminal cases, see 6 & 7 Vict. c. 96, s. 7. 
 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 filing an aflidavit that he did not 
 understand Latin, and on 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. 
 
 Every repetition of a slander is a wilful publication of 
 it, rendering the speaker liable to an action. " Tale- 
 bearers are as bad as tale-makers." * It is no defence 
 that the sj^eaker did not originate tlie scandal, but heard 
 
 * Mrs. Can. " But surely you would not be quite so severe on those who 
 only re])eat what they hear ] " 
 
 Sir Pet. " Yes, Madam, I would have law merchant for them too ; and 
 in all cases of slander currency whenever the drawer of the lie was not to 
 be found, the injured parties should have a right to come on any of the 
 indorsers." — Tlie School for Scandal. 
 
 M
 
 1 62 PUBLICATION. 
 
 it fi'om another, even tliongli it was a current rumour and 
 lie hond fide believed it to be true. ( WatJcin v. Hall., L. E. 
 3 Q. B. 396; 37 L. J. Q. B. 125; 16 W. E. 857; 18 
 L. T. 561.) It is no defence that the speaker at the 
 time named the person from whom he heard the scandal. 
 {M'Phcrson v. Daniels, 10 B. & C. 270; 5 M. & E. 
 251.) 
 
 ^This proposition, it is submitted, correctly states the existing 
 law on the point ; but it would certainly not have been accepted 
 as clear law in the last century. Great difficulty was presented 
 by the fourth resolution in Lord XortlwAiipton' s Case (in the 
 Star Chamber, 1613), 12 Kep. 134, which runs as follows : — "In 
 a private action for slander of a common person, if J. S. publish 
 that he hath heard J. N. say, that J. G. was a traitor or thief ; 
 in an action of the case, if the truth be such, he may justify. 
 But if J. S. publish that he hath heard generally Avithout a 
 certain author, that J. G. was a traitor or thief, there an action 
 siiT le case lieth against J. S. for this, that he hath not given to 
 the party grieved any cause of action against any, but against 
 himself who published the words, although that in truth he 
 might hear them ; for otherwise this might tend to a great 
 slander of an innocent ; for if one who hath Icesam j^hantasiam, 
 or who is a drunkard, or of no estimation, speak scandalous 
 words, if it should be lawful for a man of credit to report them 
 generally that he had heard scandalous words, without mention- 
 ing of his author, that would give greater colour and probability 
 that the words were true in respect of the credit of the reporter, 
 than if the author himself should be mentioned.^' 
 
 Now in the first place, the reason here assigned for the dis- 
 tinction obviously applies only to cases in which the originator 
 of the scandal is of less credit than the retailer of it, and is 
 known to be so by those to whom it is retailed. If those who 
 hear the tale repeated know nothing of the person cited as the 
 authority for it, it is to them precisely as if the name were 
 omitted altogether, and it had been told as an on dit. If, on 
 the other hand, the person named as the author of the assertion ( 
 is of greater credit and respectability than the reporter, vouch- 
 ing his authority clearly does the plaintiff's reputation a greater
 
 REPETITIOh. 163 
 
 injury than if no name liacl been given at all. And even in the 
 case where the author of the story is well known to be a person 
 of no credit, how does that excuse the defendant's act in repeat- 
 ing it ? It appears to me to make it all the worse ; he cannot 
 even j)lead : — " I had it on good authority and reasonably 
 believed it true." By the mere repetition of it the defen- 
 dant endorses and gives credit to the tale, although he states 
 that he heard it from A. B. Moreover, it is the defendant who 
 sets the tale in circulation, and those who hear it from him will 
 repeat it everywhere, and cite as their authority, not A. B., but 
 the defendant whom we presume to be of greater respectability 
 and credit. And generally, on principle, "because one man 
 does an unlawful act to any person, another is not to be per- 
 mitted to do a similar act to the same person. Wrong is not to 
 be justified, or even excused, by wrong." Per Best, C. J., in 
 Be Cres'pigny v. Wellesley, 5 Bing. 404. 
 
 Moreover, the twelfth volume of Reports is a book of question- 
 able authority ; it was issued after Lord Coke's death, compiled 
 by someone else from papers which Lord Coke had neither 
 digested nor intended for the press. See the remarks of Mr. 
 Hargrave, 11 St. Tr. 301 ; of Holroyd, J., in Lewis v. Walte7\ 
 4 B. & Aid. 614 ; and of Parke, J., in M'Pherson v. Daniels, 
 10 B. & C. 275 ; 5 M. & R 251. 
 
 The fourth resolution, as reported, appears inconsistent with 
 the preceding resolution, the third ; and also with the many 
 decisions in the case. And even if it be correctly reported, it is 
 but an obiter dictum, for the Star Chamber had no jurisdiction 
 over private slander, and the case before them was one of scan- 
 dalum magjiatuvi, which branch of the law is governed by 
 special statutes of its own. See ante, pp. 133 — 136. 
 
 Still so great was the weight justly given to every word of 
 ray Lord Coke, that this resolution was assumed to be law in 
 Crawford v. Middhton, 1 Lev. 82 ; Davis v. Leiv'is, 7 T. R. 
 17 ; and Woolnotli v. Meadows, 5 East, 463 ; 2 Smith, 28. The 
 last two cases decided that at all events it is too late to name 
 the author of the report for the first time in the plea of justifi- 
 cation ; he must be named at time of publication to raise any 
 ground of defence under this resolution. 
 
 In Maitland v. Goldney (1802), 2 East, 426, Lord Ellen- 
 borougii intimated that the doctrine did not apply where the
 
 1 64 PUBLICATION. 
 
 reporter knew that liis informant, wliom he named, had re- 
 traded the charge since making it, or where for any other 
 reason the reporter at the time of repeating the tale knew it 
 was false, and unfounded. Next, in Lewis v. Walter (1821), 
 4 B. & Aid. 615, Holroyd and Best, J.J., expressed an opinion 
 that the rule had been laid down too largely in the Earl of 
 Northampton's Case, and ought to be qualified by confining it 
 to cases where there is a fair and just reason for the repetition 
 of the slander (that is, I presume, to cases where the repetition 
 is privileged). Then, in February, 1829, the Court, of Common 
 Pleas decided that in actions of libel there was no such rule. 
 De Crespigny v. Wellesley, 5 Bing. 392, in which case Best, 
 
 C. J., says : — " Of what use is it to send the name of the author 
 with a libel that is to pass into a country where he is entii-ely 
 unknown : the name of the author of a statement will not in- 
 form those who do not know his character, whether he is a 
 person entitled to credit for veracity or not ; whether his state- 
 ment was made in earnest or by way of joke ; whether it con- 
 tains a charge made by a man of sound mind or the delusion of 
 a lunatic." And lastly, in M'FJterson v. Daniels, 10 B. & C. 
 263; 5 M. & R. 251 (Michaelmas, 1829) the rule in Lord 
 Northampton s Case was directly challenged and expressly 
 overruled ; and it was held that for a defendant to prove that 
 he said at the time that he heard the tale from A., and that A. 
 did in fact tell it to the defendant, was no justification. It must 
 be proved that the defendant repeated the story on a justifiable 
 occasion, and in the honCi fide belief in its truth [and that is a 
 defence of privilege, see Broraage v. Prosser, 4 B. & C. 247; 6 
 
 D. & R 296 ; 1 C. & P. 475, 2)0st, c. VIII.]. This decision has 
 been approved of and followed in Ward v. Weeks, 7 Bing. 211 ; 
 4 M. & P. 796 ; and in WatJAn v. Ball, L. R. 3 Q. B. 396 ; 37 
 L. J. Q. B. 125 ; 16 W. R. 857 ; 18 L. T. 561. 
 
 And in America the law appears to be the same. Jarnigan 
 V. Fleming, 43 Miss. 711 ; Treat v. Brotvning, 4 Connecticut, 
 408 ; Runlde v. Meyers, 3 Yeates (Pennsylvania), 518 ; Dole v. 
 Lyon, 10 Johns. (New York) 447; Inman v. Foster, 8 ^Vend. 
 602. 
 
 Illustrations. 
 
 Woor toLl Daniels that M'Plierson's horses had been .seized from the 
 coach, on the road, that he liad been arrested, and that the bailifls were in
 
 REPETITION. 165 
 
 his house. Daniels went uljoiit telling everyone " Woor says that I\I'Pher- 
 son's horses have been seized from the coach on the road, that he himseK 
 has l)een arrested, and that the Lailifts are in his house." KeW, that 
 Daniels was liahle to an action by M'Pherson for the slander, although he 
 named Woor at the time as the person from whom he had heard it ; that it 
 was no justitication to prove that "Woor did in fact say so : defendant must 
 go further and prove that what Woor said Avas true. 
 
 M'Pherson v. Danieh, 10 B. & C. 263 ; 5 M. & R. 251. 
 The defendant said to the plaintiff in the presence of others : — " Thou 
 art a sheep-stealing rogue, and Farmer Parker told me so." Held that an 
 action lay. 
 
 Gardiner v. Atwater, Say. 265. 
 
 Lewes v. Walter (1617), 3 Bulstr. 225; Cro. Jac. 406, 413; 
 
 Rolle's Rep. 444. 
 Meiigs V. Griffith, Cro. Eliz. 400 ; Moore, 408. 
 The defendant said to the plaintiff, a tailor, in the presence of others : — • 
 " 1 heard you were run away," scilicet, from your creditors. Held that an 
 action lay. 
 
 Davis V. Leicis, 7 T. R. 17. 
 Mr. and Mrs. Davies wrote a libellous letter to the Directors of the 
 London Missionary Society, and sent a copy to the defendant, who pub- 
 lished extracts from it in a pamphlet. The defendant stated that the 
 letter was written by ]\Ir. and ]\frs. Davies, and at the time he wrote 
 the pamphlet he believed all the statements made in the letter to be 
 true. Held no justification for his publishing it. 
 Tidnwn v. Ainslie (1854), 10 Exch. 63. 
 
 And see Mills and wife v. Spencer and wife (1817), Holt, N. P. 533. 
 McGregor v. Thicaites (1824), 3 B. & C. 24 ; 4 D. & R. 695. 
 A rumour was current on the Stock Exchange that the chairman of the 
 S. E. Ry. Co. had failed ; and the shares in the company consequently fell; 
 thereupon 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. 
 
 Watldn V. Hall, L. R. 3 Q. B. 39G ; 37 L. J. Q. B. 125 ; 16 W. 
 
 R. 857 ; 18 L. T. 561. 
 See Richards v. Richards, 2 Moo. & Rob. 557. 
 If at a meeting of a board of guardians charges were made against the 
 j)laintiff, this does not justify the owner of a newspaper in publishing 
 them to the world : it is no justilication to plead that such charges were in 
 fact made, and that the alleged libel was an impartial and accurate report 
 of what took place at such meeting. 
 
 Ptircell v. Solder, 1 C. P. D. 781 ; 2 C. P. D. 215 ; 46 L. J. C. 
 
 P. 308 ; 25 W. R. 362 ; 36 L. T. 416. 
 Davison v. Duncan, 7 E. & B. 229 ; 26 L. J. Q. B. 104 ; 3 Jur. 
 
 N. S. 613 ; 5 W. R. 253 ; 28 L. T. (Old S.> 265. 
 Popham V. Picklmrn, 7 H. & N. 891 ; 31 L. J. Ex. 133 ; 8 Jur. 
 X. S. 179 ; 10 W. R. 324 ; 5 L. T. 846.
 
 ]66 PUBLICATIOX. 
 
 And here note [i great distinction between libel and 
 slander. Tlie actual publisher of a libel may be an 
 innocent porter or messenger, a mere hand, unconscious 
 of the nature of his act; and for which therefore his 
 employers shall be held liable, and not he. Whereas in 
 every case of the republication of a slander, the pub- 
 lisher acts consciously and voluntarily ; the repetition is 
 his own act. Therefore if I am in any way concerned 
 in the making or publishing of a libel, I am liable for 
 all the damage that ensues to the plaintiff from its pub- 
 lication. But if I slander A., I am only liable for such 
 damages as result directly fi-om that one utterance by 
 my own lips. If B. hears me and chooses to carry the 
 tale to A.'s master, that is B.'s own act; and should 
 A.'s master in consequence dismiss him from his employ- 
 ment, B. alone is answerable for that, and not I. In an 
 action against me such special damage would be too 
 remote. For each publication of a slander is a distinct 
 and separate act, and every person repeating it becomes 
 an independent slanderer, and he alone is answerable for 
 the consequences of his o^vn unlawful act. 
 
 Thus, by the law of EngiaDd as it at iDresent stands, the per- 
 son who invents a lie and maliciously sets it in circulation may 
 sometimes escape punishment altogether, while a person who is 
 merely injudicious may be liable to an action through repeating 
 a story which he believed to be the truth, as he heard it told 
 frequently in good society. For if I originate a slander against 
 you of such a nature that the words are not actionable jyer se, 
 the utterance of them is no ground of action, unless special 
 damage follows. If I myself tell the story to your employer, 
 who thereupon dismisses you, 3^011 liave an action against me ; 
 but if I only tell it to your friends and relations and no pecu- 
 niary damage ensues from my own comnuuiication of it to any 
 one, then no action lies against me ; although the story is sure 
 to get round to your master sooner or later. The unfortunate 
 man whose lips actually utter the slander to your master, is the
 
 REPETITION. 167 
 
 only person that can be made defendant ; for it is his publica- 
 tion alone which is actionable as causing special damage. See 
 fost, c. X., Special Damage. But this apparent hardship only 
 arises where the words are not actionable without proof of 
 special damage. Where the words are actionable 'per se, the 
 jury find tlie damages generally, and will judge from the circum- 
 stances which of the various defendants is most to blame. 
 
 There are two apparent exceptions to this rule : 
 
 I. Where by communicating a slander to A., the de- 
 fendant puts A. under a moral necessity to repeat it to 
 some other person immediately concerned ; here, if the 
 defendant knew the relation in which A. stood to this 
 other person, lie will be taken to have contemplated this 
 result when he spoke to A. In fact, here A.'s repetition 
 is the natui'al and necessary consequence of the de- 
 fendant's communication to A. 
 
 II. Where there is evidence that the defendant though 
 he spoke only to A., intended and desii^ed that A. should 
 repeat his words, or expressly requested him to do so : 
 here the defendant is liable for all the consequences of 
 A.'s repetition of the slander ; for A. thus becomes the 
 agent of the defendant. (As to Principal and Agent, 
 see Law of Persons, c. XII., ^yost, j)p. 360 — 365.) 
 
 Illustrations. 
 
 Weeks was speaking to Biyce of the plaintiff and said, " He 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 ^jcr se ; and the damage was too remote. 
 Ward V. Weeks, 7 Bing. 211 ; 4 M. & P. 796. 
 Tlie defendant's -wife charged Mrs. Parkins with adultery. She indig- 
 nantly told her husband, her natural protector : he was unreasonable 
 enough to insist upon a separation in consequence. Held, that for the 
 separation the defendant was not liable. 
 
 Parkins et uz. v. Scott et ux. 1 H. & C. 153 ; 31 L. J. Ex. 331 ; 
 
 8 Jur. N. S. 593 ; 10 W. R. 5G2 ; 6 L. T. 394. 
 See Dixon v. Smith, 5 H. & N. 450 ; 29 L. J. Ex. 125. 
 H. told Mr. Watkins that the plaintiff', his wife's dressmaker, was a
 
 1 68 P UBLICA TION. 
 
 woman of immoral cliaracter ; Mr. Watkins naturally informed his wife of 
 this charge, and slie ceased to employ the plaintiff. HM that the plaintiff's 
 loss of Mrs. Watkins's custom was the natural and necessary consecjuence 
 of the defendant's communication to Mr. Watkins. 
 
 Berry v. Handlcn, 16 L. T. 263. 
 
 See Gillett v. BulHvant, 7 L. T. (Old 8.) 490. 
 
 Kendillon v. Malthy, 1 Car. & Marsh. 402. 
 
 It has sometimes been held on the principle of Volenti nonjit 
 injuria, that if the only publication proved at the trial be one 
 brought about by the plaintiff's own contrivance, the action must 
 fail. Thus, in King v. Waring ct ux. 5 Esp. 15, Lord Alvanley 
 decided, that if a servant, knowing the character which his 
 master will give him, procures a letter to be written, not with a 
 fair view of inquiring the character, but to procure an answer 
 upon which to ground an action for a libel, no such action can 
 be maintained. So in Smith v. Wood, 3 Camp. 323, where the 
 plaintiff, hearing that defendant had in his possession a copy of 
 a libellous caricature of the plaintiff, sent an agent who asked 
 to see the picture, and the defendant showed it him at his 
 request, Lord EUeuborough ruled that this was no sufficient 
 evidence of publication and nonsuited the plaintiff. 
 
 But these cases so far as the question of piMication merely 
 is concerned, must be taken to be overruled by Tlte Duke of 
 Brunswick v. Harmer, 14 Q. B. 185 ; 19 L. J. Q. B. 20 ; 14 
 Jur. 110; 3 C. & K. 10. Whether or no the plaintiff's conduct 
 in himself provoking or inviting the publication on which he 
 afterwards bases his action may amount to a ground of privilege 
 as excusing the publication made, is a different question, which 
 will be discussed j^ost, pp. 230 — 233. See Warr v. Jolly, 6 C. & 
 P. 497 ; Shiith v. Mathevjs, 1 M. & Rob. 151 ; Griffiths v. Letuis, 
 7 Q. B. Gl ; 14 L. J. Q. B. 197 ; 9 Jur. 370 ; 8 Q. B. 841 ; 15 
 L. J. Q. B. 249 ; 10 Jur. 711 ; Force v. Warren, 15 C. B. N. S. 
 806 ; W Donoghue v. Hussey, Jr. R. 5 C. L. 124 ; Divyer v. 
 Esmonde, 2 L. R. Ir. 243. And indeed in many of the older 
 cases the judges say, " there is no sufficient publication to 
 support an action for a libel," when they mean in modern 
 parlance that the publication was privileged by reason of the 
 occasion. See judgment of Best, J., in Faimian v. Ives, 5 B. 
 & Aid. 046 ; 1 D. & R. 252 ; 1 Chit. 85.
 
 CHAPTEE VII. 
 
 JUSTIFICATION. 
 
 The trutli of any defamatory words is, if pleaded, a 
 complete defence to any action of libel or slander 
 (thongli alone it is not a defence in a criminal trial). 
 The onus, however, of proving that the words are true 
 lies on the defendant. The falsehood of all defamatory 
 words is presumed in the plaintiff's favour, and he need 
 give no evidence to show they arc false ; but the 
 defendant can rebut this presumption by giving evidence 
 in support of his plea that the words are true in sub- 
 stance and in fact. If the jury are satisfied that the 
 words are true, they must find for the defendant, though 
 they feel sure that he spoke the words spitefully and 
 maliciously. On the other hand, if the words are false, 
 the jury must find for the plaintiff, although they are 
 satisfied that the defendant hond fide and reasonably 
 believed the words to be true at the time he uttered 
 them. 
 
 But the whole libel must be proved true, not a part 
 merely. The justification must be as broad as the 
 ■ charge, and must justify the precise charge. If any 
 material part be not proved true, the plaintiff will 
 recover damages in respect of such part. (Weaver v. 
 Lloyd, 1 C. & P. 295 ; 2 B. & C. 678 ; 4 D. & E. 230; 
 Ingram v. Lawson, 5 Bing. N. C. 66 ; 6 Scott, 775 ; 7 
 Dowl. 125 ; 1 Arn. 387 ; 3 Jur. 73 ; 6 Bing. N. C. 212 ; 
 8 Scott, 471 ; 4 Jur. 151 ; C^ & P. 326.) Thus where
 
 I70 * JUSTIFICATION. 
 
 a libellous paragrapli in a newspaper is introdiice^l by a 
 libellous heading, it is not enough to prove the truth of 
 the facts stated in the paragraph, defendant must also 
 prove the truth of the heading. [Mountney y. Wattoii, 
 2 B. & Ad. 673 ; Chalmers v. ShacMl, 6 C. & P. 475.) 
 
 But where the gist of the libel consists of one specific 
 charge which is proved to be true, defendant need not 
 justify every expression which he has used in coniment- 
 ing on the j^laintifF's conduct. 'Nor, if the substantial 
 imputation be proved true, will a slight inaccuracy in one 
 of its details prevent defendant's succeeding, provided such 
 inaccuracy in no way alters the complexion of the affau*, 
 and would have no different effect on the reader than 
 that which the literal truth would produce. (Alexander 
 V. N.K Bail. Co., 34 L. J. Q. B. 152; 11 Jm-. N. S. 619; 
 13 W. E. 651 ; 6 B. & S. 340 ; cf. StocMale v. Tarte, 4 
 A. & E. 1016 ; Blake v. Stevens, 4 F. & F. 239 ; 11 L. T. 
 544.) If epithets or terms of general abuse be used 
 which do not add to the sting of the charge, they need 
 not be justified; (Eclioards \. Bell, 1 Bing. 403 ; Morri- 
 son V. Ilarmer, 3 Bing. X. C. 767 ; 4 Scott, 533 ; 3 
 Hodges, 108;) but if they insinuate some further charge 
 in addition to the main imputation, or imj)ly some cir- 
 cumstance substantially aggravating such main imputa- 
 tion, then they must be justified as well as the rest. 
 (Per Maule, J"., in Helsham v. Blachvood, 11 C. B. 129 ; 
 20 L. J. C. P. 192 ; 15 Jm-. 861.) In such a case it 
 will be a question for the junj whether the substance of 
 the libellous statement has been proved true to their 
 satisfaction, or whether the fact not justified amounts to 
 a separate charge or imputation against the plaintift', 
 substantially distinct from the main charge or gist of the 
 libel, or at least amoimts to a material aggravation of 
 such main charge. ( Warman v. Iline, 1 Jur. 820 ; Weaver 
 V. Lloyd, 2 B. & C. 678 ; 4 D. & E. 230 ; 1 C. & P. 295.
 
 JUS TIFIC- 1 TION. 1 7 1 
 
 Behmis V. Allen, 8 Jur. X. S. 118 ; 3 F. & F. 135.) '' It 
 would be extravagant," says Lord Dcnmau (in Cooper v. 
 Laioson, 8 Ad. & E. 753 ; 1 P. & D. 15 ; 1 W. W. & H. 
 601 ; 2 Jiir. 919 ;) "to say that in cases of libel every 
 comment upon facts requires a justification. But a 
 comment may introduce independent facts, a justification 
 of which is necessary. A comment may be the mere 
 shadow of the previous imputation ; but if it infers a 
 new fact, tha defendant must abide by that inference of 
 fact, and the fairness of the comments must be decided 
 upon by the jury." And see Lefroij v. Burmlde, 4 L. E. 
 Jr. 556. 
 
 So in criminal cases, if the whole of the plea of 
 justification be not proved, the CroAvn will be entitled to 
 a verdict. {R. v. Newman, 1 E. & B. 268, 558 ; 22 L. J. 
 Q. B. 156 ; Dears. C. C. 85 ; 17 Jm-. 617 ; 3 C. & K. 252.) 
 
 Illustrations. 
 
 The editor of one newspaper called the editor of another " a felon editor." 
 Justification that the plaintiif had been convicted of felony and sentenced 
 to tweh-e months' imprisonment. The Court of Appeal held the plea bad 
 for not averring that the plaintiff was still enduring the punishment 
 when the words were uttered ; for that by the 9 Geo. IV. c. 32, s. 3, a 
 person who has been convicted of felony and who has undergone the full 
 punislnnent is in law no longer a felon. 
 
 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 ; 14 Cox, C. C. 51. 
 
 Words complained of that the plaintiff was a " libellous journalist." Proof 
 that he had libelled one man, who had recovered from him damages £100, 
 held insufficient, 
 
 Wakley v. Cooke and Healey, 4 Ex. 511 ; 19 L. J. Ex. 91. 
 
 Libel complained of : — that no boys had for the last seven years received 
 instruction in the Free Grammar School at Lichfield of which plaintiff was 
 head master, and that tlie decay of the scliool seemed mainly attributable to 
 the plaintiff's violent conduct. Plea of justification that no boys had in fact 
 received instruction in the school for the la.-^t seven years, and that the 
 plaintiff had been guilty of violent conduct towards several of his scholars, 
 was held bad on sjjccial demurrer, because it wholly omitted to connect the 
 decay of the scliool with the alleged violence, and therefore left the second 
 part of the libel unjustified. 
 
 Smith V. Parhcr, 13 M. & W. 459 ; 14 L. J. Ex. 52 ; 2 D. & L. 394.
 
 1 72 JUS TIFICA TION. 
 
 The plaintiff, an architect, had been employed hy a certain committee to 
 superintend and cany out the lesloration of Skirlaugh Church ; thereupon 
 the defendant, who hud no manner of interest in the question of the em- 
 ployment of plaintiff to execute the work, Avrote a letter to a member of 
 the committee saying : " I see that the restoration of Skirlaugh Church 
 has fallen into the hands of an architect who is a Wesleyan and can have 
 no experience in church work. Can you not do something to aveit the 
 irreparable loss which must be caused if any of the masonry of this ancient 
 gem of art be ignorantly tampered with ? " In an action for libel the 
 defendant by Avay of justification alleged " that the facts contained in the 
 letter are true, and the opinions expressed in it, whether right or wrong, 
 were honestly held and expressed by the defendant," and in his parti- 
 culars under this plea " that the plaintiff cannot show experience in 
 church work, i.e., of the kind which in the opinion of the defendant was 
 re(juisite." 
 
 HeW, that the letter was a libel on the plaintiff in the way of his profes- 
 sion or calling. 
 
 That the justification set up was no justification at all, because the letter 
 obviously meant that the plaintiff could show no experience in the work in 
 which he had been employed by the committee to execute. Verdict for the 
 lilaintilFs. Damages £50. 
 
 Boftcrill and (mother v. IVhytehedJ, 41 L. T. 588. 
 Libel complained of : — that the plaintiff had " ?;(;/<tY/," leaving some of 
 the tradesmen of the town to lament the fashionable character of his enter- 
 tainment. Proof tliat he had quitted the town leaving some of his bills 
 unpaid, held insufficient. 
 
 CTBrien v. Bnjmit, 16 M. & W. 168 ; 16 L. J. Ex. 77 ; 4 D. & 
 L. 341. 
 Libel complained of : — that the plaintiff, having challenged his opponent 
 to a duel, spent the whole of the night preceding in practising with his 
 pistol, and killed his ojijionent, and was therefore guilty of murder. Proof 
 that the plaintiff had killed his opponent, and liad been tried for murder, 
 held insufficient. For the charge of jMstol practising was considered a 
 separate and substantial charge, and it was not justified. 
 
 Hclshani v. Blackwood, 11 C. B. 128; 20 L. J. C. P. 187 ; 15 
 Jur. 861. 
 The libel complained of was headed — "How Lawyer B. treats his 
 clients,"' followed by a report of a particular case in which one client 
 of Lawyer B. had been badly treated. That particular case was proved 
 to l)e correctly reported, but this was held insufficient to justify 
 the heading, which implied that Lawyer B. r/nieralhi treateil his clients 
 badly. 
 
 Bishop V. Latimer, 4 L. T. 775. 
 See also Mountney v. Walton, 2 B. & Ad. 673. 
 Chalmers v. Shackell, 6 C. & P. 475. 
 
 Clement v. Lewis and others, 3 Brod. & Bing. 297 ; 7 Moore, 
 200 ; :>, P.. & Aid. 702. 
 Libel complained u[' — that the plaintiff, a proctor, had three times been
 
 JUSTIFICATION. 173 
 
 suspended from practice, for extortion. Proof tliat Le Iiad once been so 
 suspended, was held insufticient. 
 
 Olarhsoa v. Luimm, 6 Bing. 26G ; 3 M. & P. G05 ; 6 Bing. 587 ; 
 4 M. & P. 356. 
 
 See also Johns v. (iittings, Cro. Eliz. 239. 
 
 Goodburne v. Bownuui and others, 9 Bing. 532. 
 
 Clarke v. Taylor, 2 Bing. N. C. 654 ; 3 Scott, 95 ; 2 Hodges, 65. 
 
 niakc V. Stevens and others, 4 F. & F. 232 ; 11 L. T. 543. 
 Bat w lien the libel complained of exposed the " homicidal tricks of those 
 impudent and ignorant scamps who had the audacity to jjretend to cure 
 all diseases with one kind of pill " — asserted that " several of the rotgut 
 rascals had been convicted of manslaughter and fined and imprisoned for 
 killing people with enormous doses of their universal vegetable boluses," 
 and characterised the plaintiffs' system as " one of wholesale poisoning ; " 
 and it was proved at the trial " that the plaintiff's pills when taken in large 
 doses, as recommended by the plaintiffs, were highly dangerous, deadly and 
 poisonous," and " that two persons had died in consequence of taking large 
 quantities of them ; and that the people who had administered these pills 
 were tried, convicted, and imprisoned for the manslaughter of these two 
 persons," — this ^\ as held a sufficient justification, although tlie expressions 
 " scamps," " rascals," and " wdiolesale poisoning" had not been fully sub- 
 stantiated : the main charge and gist of the libel being amply sustained, 
 
 Morrison v. Harmcr, 3 Bing. X. C. 767 ; 4 Scott, 533 ; 3 Hodges, 
 108. 
 
 Edsall V. Bussell, 4 M. & Gr. 1090 ; 5 Scott, N. R. 801 ; 2 Dowl. 
 N. S. 641 ; 12 L. J. C. P. 4 ; 6 Jur. 996. 
 The libel complained of was a notice published by a railway company to 
 the effect that the plaintiff had been convicted of riding in a train for 
 which his ticket was not available, and was sentenced to be fined £l, or to 
 three weeks' imprisonment in default of payment. Proof that he had been 
 so convicted and fined £l, and sentenced to a fortnight's imprisonment in 
 default of payment, held sufficient ; as the error could not have made any 
 difference in the effect wliich the notice would produce on the mind of the 
 public. 
 
 Alexander v. N. E. R. Co., 34 L. J. Q. B. 152 ; 11 Jur. N. S. 
 619 ; 13 W. E. 651 ; 6 B. & S. 340. 
 
 But see Gtvynn v. S. E. R. Co., 18 L. T. 738. 
 
 Biggs v. G. E. R. Co., 16 W. R. 708 ; 18 L. T. 482. 
 
 See also Lay v. Lau'son, 4 Ad. & E. 795. 
 
 Edwards v. Bell and others, 1 Bing. 403. 
 
 Tighe v. Cooj^er, 7 E. & B. 639 ; 2G L. J. Q. B. 215 ; 3 Jur. N. S. 
 716. 
 
 This rule that the whole of the libel must be justified 
 to enable the defendant to succeed applies to all cases of 
 reported speeches or repetitions of slander. Thus, if 
 the libel complained of be, " A.B. said that the plaintiff
 
 1 74 JUS TIFICA TION. 
 
 had been guilty of fraud, etc.," it is of no avail to plead 
 that A.B. did in fact make that statement on the occa- 
 sion specified. Each repetition is a fresh defamation, 
 and the defendant by repeating A.B.'s words has made 
 them his own, and is legally as liable as if he had 
 invented the story himself. The only plea of justifica- 
 tion which will be an answer to the action must not 
 merely allege that A.B. did in fact say so, but must go 
 on to aver Avith all necessar}^ particularity that every 
 word which A.B. is reported to have said is true in 
 substance and in fact. In short, a previous publication 
 by another of the same defamatory words is no justifica- 
 tion for their repetition. (See ante^ c. YI., Publication, 
 pp. 161 — 168.) Still less is it any evidence of their truth. 
 \r. v. Newman, 1 E. & B. 268, 558; 3 C. & K. 252 ; 
 Dears. C. C. 85; 22 L. J. Q. B. 156; 17 Jur. 617.) 
 
 The opposite doctiine was laid down in the Earl of North- 
 ampton's case, but the fourth resolution in that case never 
 professed to apply to actions of libel, but to actions for slander 
 only ; and even in actions of slander it must now be taken not 
 to be law. (See De Crespigny v. Wellesley, 5 Bing. 392 ; 2 M. & 
 P. 095 ; Tidman v. AinsUc, 10 Ex. 6(J ; M'Phevson v. Daniels, 
 10 B. & C. 270 ; 5 M. & P. 251 ; Watldii v. Hall, L. P. 3 Q. B. 
 39G ; 87 L. J. Q. B. 125 ; IG W. P. 857 ; IS L. T. 5G1.) 
 
 This rule sometimes works an apparent hardship upon news- 
 paper proprietors who, in the ordinary course of their business 
 have presented to the public a full, true, and impartial account 
 of what really took place at a public meeting, considering no 
 doubt that thereby they were merely doing their duty. But 
 the consequence of publishing in the papers calumnies uttered 
 at some political meeting, or at a vestry board, might be most 
 injurious to the person calumniated. The original slander 
 mioht 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
 
 I 
 
 REPETITION. 175 
 
 if such words could therefore be printed aiid published to all the 
 world, and remain in a permanent form . recorded against him, 
 without any remedy being permitted him for the injury caused 
 by their extended circulation. See the remarks of Lord Camp- 
 bell in Davison v. Dttncan, 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 the 
 recommendation of the Select Committee of the House of 
 Commons, discussed 2wst, pp. 261 — 263. 
 
 Illustiutions. 
 
 Wool- told Dauiels that M'Phersou was insolvent ; Daniels went about 
 telling his friends " Woor says M'Pherson is insolvent." Proof that Woor 
 had in fact said so was held no answer to the action. Daniels was liable in 
 damages unless he could also prove the truth of Woor's assertion. 
 
 M'Pherson v. Daniels, 10 B. & C. 263 ; 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 conserjuently fell ; 
 thereupon 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. 
 
 WatJcin v. Hall, L. R. 3 Q. B. 390 ; 37 L. J. Q. B. 125 ; 16 W. 
 R. 857 ; 18 L. T. 561. 
 
 Richards v. Pachards, 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 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 justifi- 
 cation, alleging that such remarks 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. 
 
 Davison v. Duncan, 7 E. & B. 229 ; 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 publishers of the Manchester Courier, 
 published 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 when sent for. Held 
 that the matter was one of public interest ; but that the report was not 
 privileged by the occasion, 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. 
 
 Purcell V. Sowler, 1 C. P. D. 781 ; affirmed on appeal, 2 C. P. D. 
 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. 64.
 
 1 76 JUS TIFICA TION. 
 
 So also a newspaper proprietor will be held liable for publishing a report 
 made to the vestry by tlndr medical officer of liealth, even although the 
 vestry are reqiu'red by Act of Parliament sooner or later to publish such 
 report themselves. 
 
 Popham V. Piohhirn, 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. Watton, 6 C. & P. 385. 
 So even in reports of judicial proceedings, which are generally held 
 privileged, 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 evidence 
 should be set out, and the charges made in the counsel's speech should also 
 be justified. 
 
 Lewis V. Walter, 4 B. & Aid. 605. 
 
 Saunders v. Mills, 3 M. & P. 520 ; 6 Bing. 218. 
 
 See also Flint v^ Pike, 4 B. & C. 473 ; 6 D. & R. 528 ; and the 
 
 remarks of Lord Campbell in 
 Lewis V. Levy, E. B. & E. 541 ; 4 Jur. N. S. 970 ; 27 L. J. Q. B. 
 282. 
 It is 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, 7 East. 493 ; same case suh nomine Curr 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 part contains imputations distinct from 
 the rest. (Fcr Tindal, C.J., in Clarice v. Ta?/Ior, 2 Bing. 
 K C. G68 ; 3 Scott, 95 ; 2 Hodges 65.) So he may 
 justify as to one part, and demur or plead privilege to 
 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 
 intelligible by itself, and must also convey a distinct 
 and separate imputation against the plaintiff. [McGregor 
 V. Gregory, 11 M. & W. 287 ; 12 L. J. Ex. 204 ; 2 D. JN". 
 S. 769 ; Churchill v. Hunt, 2 B. & Aid. 685 ; 1 Chit. 480;
 
 PLEA. 177 
 
 Roberts v. Broimi, 10 Bing. 519 ; 4 M. & Scott, 407; 
 Biddulph Y. Chamherlaijnc^ 17 Q. 13. 351.) 
 
 Again, where the words are laid with an innuendo in 
 the Statement of Claim, the defendant may justify the 
 words, either with or without the moaning alleged in 
 such innuendo ; or he may do both. ( Watkln v. Ilall., L. 
 E. 3 a B. 396 ; 37 L. J. Q. B. 125 ; IG W. R 857 ; 18 
 L. T. 561.) That is, he may deny that the plaintiif 
 jDuts the true construction on his words, and assert that, 
 if taken in their natural 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 signification 
 that can be put upon them. But it seems that a 
 defendant may not put a meaning of his oavu 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 
 content to leave it to the jury at the trial to determine 
 what meaning the words naturally bear. [Bremh'idge v. 
 Latimer, 12 W. E. 878; 10 L. T. 816.) In Ireland the 
 defendant must justify the innuendo as well as the words. 
 {IIortY. Readc, Ir. E. 7 C. L. 551.) 
 
 A justification must always be specially pleaded, and 
 it must be pleaded with sufficient particularity to enable 
 plaintiff to know precisely what is the charge he will 
 have to meet. [I'' Anson v. Stuart, 1 T. E. 748 ; 2 Sm. 
 Lg. Cases, 6th ed. 57 (omitted in last edition)). A plea, 
 which professes to justify the whole libel, but in effect 
 justifies only a part, is a bad plea, and demurrable. A 
 plea of justification is always construed strictly [Lc>jman 
 V. Latimer, 3 Ex. D. 15, 352), and it must set forth 
 issuable facts. [Jones v. Stevens, 11 Price, 235 ; Neiuman 
 V. Bailejj, 2 Chit. 665 ; Holmes v. Cateshj, 1 Taunt. 543.) 
 
 " The plea ought to state the charge with the same 
 precision as in an indictment." {Per Aldersou, B., in
 
 178 JUSTIFICA TION. 
 
 IlicJiinhotham y. Leach, 10 M. & W. 363 ; 2 D. N. S. 270.) 
 And at the trial it must be proved as strictly as an indict- 
 ment for tlie offence it imputes. 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 j)ut upon his trial before a petty jury, 
 "without the necessity of any bill being found by a grand 
 jury. [Per Lord Kenyon in CooJc v. Field, 3 Esp. 134. 
 See the note to Prosser v. Rowe, 2 C. & P. 422 ; Johnson 
 V. Broivning, 6 Mod. 217.) 
 
 And the Coui't will not assist the defendant to obtain 
 evidence in support of his plea of justification. [Metro- 
 'politan Saloon Omnibus Co. v. HawJcins, 4 H. & N. 87, 
 146 ; 28 L. J. Ex. 201 ; 7 W. E. 265 ; 32 L. T. (Old S.) 
 281 ; 5 Jur. N.S. 226.) For the defendant has no right 
 to take away the character of the plaintiif, unless he is 
 in a position to prove the truth of the charge he has 
 made. 
 
 Placing such a plea on the record is evidence of 
 malice on the part of the defendant, and may be relied 
 upon as such by the plaintift' in aggravation of damages, 
 if the defendant either abandons the plea at the trial or 
 fails to prove it. {Wanvick v. FoiilJces, 12 M. & W. 508 ; 
 WUson 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.) 
 
 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 pubHc 
 benefit that the matters charged should be published (G & 7 
 Vict. c. 9G, s. 6, post, p. 389). And indeed before 1843 the truth 
 of the libel was no defence 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 bar to the action. The benefit or detriment 
 to the public, it was said, is in no way in issue in a civil trial ;
 
 IVHV A DEFENCE. 
 
 179 
 
 tlio plaintiff is seeking to recover damages to put in liis own 
 pocket — damages for injury done to a character to which he had 
 no right or title. And no doubt in the vast majority of cases 
 there is great force in this argument. It is right that culprits 
 should appear in their true colours, lest honest men be beguiled, 
 " peccata enim nocentlum nota esse et ojwrtere et expeclire." — 
 Paulus. 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 
 clearly morally wrong for one who knows of his early de- 
 linquencies to come and blast the reputation which he has fairly 
 earned. Should not an action lie, where the plaintiff's ante- 
 cedents have been maliciously raked up and wantonly published 
 to the world, without any benefit to society? Prisoners con- 
 stantly complain that it is impossible for them to earn a liveli- 
 hood 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, R. v. 8eyinore, Win- 
 chester 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 iifform 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 j^art thought that it should not be; It was an un- 
 necessary, an officious, and a cruel act ; and the result of it was 
 that once a man was convicted he was branded for the rest of 
 his life, and a return to honesty was made most difficult for 
 \\\m"— Times, for April 28rd, 1880. No doubt it is part of tlie 
 punishment of a criminal that he can never escape from his 
 misdeeds ; but, nevertheless, to unduly proclaim them is 
 malicious and uncharitable. Kailway companies used formerly 
 to placard the names and addresses of offenders against their 
 bye-laws ; but lately they have adopted a more merciful but
 
 i8o JUSTIFICATION. 
 
 equally deterrent form of announcement : — " A 20cissenger was 
 convicted," &c. On the whole, however, I do not advocate any 
 change in the law in this respect. No law can be framed which 
 cannot be made to press harshly on individuals under exceptional 
 circumstances and in the hands of uncharitable persons. And 
 as a rule the strictness with which a defendant is made to prove 
 his plea of justification, is a sufficient protection 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 undoubtedly 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 [carmiua] si quis 
 Judice condiderit laudatur Ciesare : si quis 
 Opprobriis dignmii laceraverit, integer ipse." 
 
 The rescript of Diocletian and Maximian to Victorinus is some- 
 times cited as an authority against this view ; but it appears 
 to me to have nothing to do with the subject. It seems that 
 Victorinus had in the course of his official duty charged a man 
 with homicide, and he writes to know if he had thereby made 
 himself liable to an action when his term of office had expired. 
 The emperors' reply is as follows : — " Impp. Diocletianus et 
 Maximianus A.A. Victorino. Si non convicii consilio te aliquid 
 injuriosum dixisse probare ipotes, Jides veri a calumnia te de- 
 fendit. Si autem in rixam inconsulto calore prolapsus homicidii 
 convicium objecisti, et ex eo die annus excessit, cum in- 
 juriarum actio annuo tempore prescripta sit ob injurise admissum 
 conveniri non potes. P. P. vi. Id. Jul. ipsis iv. et iii. A. A. conss." 
 (A. D. 290). Krueger's Codex (ed. 1877), p. 855. Here the 
 words Jides veri have generally been understood by the com- 
 mentators to mean " proof of the truth of the charge ; " and 
 hence they have inferred that the truth was not of itself a 
 defence ; the defendant had to prove something more, viz., that 
 the imputation was made sine animo coiiviciandi. The in- 
 genious author of the note to Starkie's Commentary, p. 20, 
 however, translates the passage thus : — If you really spoke the 
 words non convicii consilio, then proof of the truth of this will
 
 ROMAN LAW. i8i 
 
 exculpate you ; tMs being the fact that you spoke non con- 
 vicii consilio, so that the passage would mean merely : — 
 " proof that you spoke without malicious intent is a bar to the 
 action." See post, p. 184. But it is very harsh to make prohare 
 potes and Jides veri refer to the same piece of proof. I venture 
 to think that Victorinus had heard on good authority that the 
 man had been guilty of homicide, and, believing the charge to 
 be true, objected to his promotion to some higher office ; and I 
 Avould translate the passage ; — " If you spoke without any 
 malicious intent, your own honest belief in the truth of the 
 charge will be a good defence ; but if in a sudden quarrel, and 
 in the heat of the moment you called him homicide without any 
 ground for the accusation (inconsulto calore), Avhy, then, you 
 must rely on the Statute of Limitations." If I am right, then, 
 this rescript does not refer to Justification, but rather comes 
 under the defence of Privilege, which will be dealt with in the 
 next chapter.
 
 
 CHAPTER YIII. 
 
 PEIVILEGED OCCASIONS. 
 
 It is a defence to an action of libel or slander to prove 
 that the circumstances under which the defamatory 
 words were wi'itten or spoken afforded an excuse for 
 tlieii' employment. And this is so, even though the 
 words be proved or be admitted to be false. Circum- 
 stances will afford an excuse for writing or speaking 
 defamatory words, whenever the occasion is such as to 
 cast upon the defendant a duty, whethe r_lej2:al or moral, 
 of stating what he honestly believes to be the plaintiff's 
 character, and of sjDoaldng liis mind fully and freely 
 concerning him. In such a case, the occasion is said to 
 be ijrivileged^ and the emjDloymcnt of defamatory words 
 on such privileged occasion is, in the interest of the 
 pnblic, excused. Again, the circumstances will afford 
 an excuse for writing or speaking defamatory words, 
 whenever such words form part of a confidential com - 
 mimication, made by the defendant to his partner or 
 friend on a matter in which th ey have a common interest 
 and concern ; provided such communication is made 
 ho nest ly in furtherance of snch common interest, not 
 recklessly or maliciously. Ilere too the occasion is said 
 to be "privileged," and though the statement may 
 prove, or be admitted, to be false, still its utterance on 
 such privileged occasion is excused for the sake of 
 common convenience, and for the welfare of society.
 
 PRIVILEGED OCCASIONS. 183 
 
 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 I 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 with- 
 out 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 in- 
 tegrity, or immorality. 
 
 Privileged occasions are of two kinds : — 
 
 (i.) Those absolutely privileged, 
 (ii.) Those in which the privilege is but qualified. 
 
 In the first class of cases it is so much to the public 
 interest that the defendant should speak out his mind 
 fully and freely, that all actions in respect of words 
 spoken thereon are absolutely forbidden, even though it 
 be alleged that the words were spoken falsely, know- 
 ingly, and with express malice. But this complete 
 immunity is confined to cases where the public service, 
 or the due administration of justice, requires it, e.g.^ 
 words spoken in Parliament ; reports of military ofiicers 
 on military matters to theii- military superiors ; every- 
 thing said by a judge on the bench, by a witness in the 
 box, &c. &c. In all these cases the privilege afi'orded by 
 the occasion is an absolute bar to any action. 
 
 In less important matters, however, where the in- 
 terests 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 the privilege 
 is said not to be absolute but qualified only ; and the
 
 1 84 PRIVILEGED OCCASIONS. 
 
 plaintiff will recover damages in spite of the privilege, 
 if he can prove that the words vrere not nsed hond fide but 
 that the defendant availed himself of the privileged 
 occasion wilfully and knowingly to defame the plaintifi. 
 
 Illustrations. 
 
 If a M'itness in the box volunteers a defamatory remark, quite irrelevant 
 to tlie cause in which he is sworn, with a view of gratifying his own vanity, 
 and of injuring the professional reputation of the plaintiff, still no action 
 lies against such witness ; the words are still absolutely privileged ; for they 
 were spoken in the box. 
 
 Seaman v. Netherdift, 1 C. P. D. 540 ; 45 L. J. C. P. D. 798 ; 
 
 24 W. E. 884 ; 34 L. T. 878 ; 2 C. P. D. 53 ; 46 L. J. C. P. 
 
 128 ; 25 W. E. 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 ro return to my own service, 
 
 the case is thereby taken out of the privilege, and the servant may recover 
 
 heavy damages. 
 
 In Roman law an intention to injure the plaintiff was essential 
 to tlie action for injuria (D. 47. 10. 8, 3 & 4). Hence they never 
 presumed malice ; the plaintiff had to prove that the defendant 
 expressly intended to impair his good name. Thus if an astro- 
 loger or soothsayer in the hond fide practice of his art, de- 
 nounces A. as a thief when he is an honest man, A. has no 
 action ; for the astrologei" only committed an honest mistake. 
 But it would be otherwise if the soothsayer did not really 
 believe in his art, but pretended, after some jugglery, to arrive 
 at A.'s name from motives of private enmity (D, 47. 10. 15. 
 18). That being so, it was unnecessary 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). Two adversaries in litigation 
 were of course allowed great latitude ; a certain amount ot 
 mutual defamation being essential to the conduct of the case 
 and so not malicious : but even here moderation had to be ob- 
 served (Pauli Sent. V. iv. 15). The Roman plan had at least 
 the merit of simplicity.
 
 DUTY OF THE JUDGE. 185 
 
 Whether the commimicatiou is, or is not, privileged 
 by reason of the occasion, is a question for the judge 
 alone, where there is no dispute as to the circumstances 
 under which it was made. [Stace v. Grij^th^ L. E. 2 
 P. C. 420; 6 Moore, P. C. C. N. S. 18; 20 L. T. 197.) 
 If there be any doubt as to these circumstanc es, the jury 
 must find wha t the circumstances in fact wer e, or what 
 the defend ant~~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 privileged 
 or not. If the occasion was not privileged, and the 
 words are. defamatory and false, the judge will dii-ect a 
 verdict for the plaintiff. If the occasion was absolutely 
 privileged, judgment mil 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 he 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 sufiicient to go to the jury , then it is a 
 question for the jury whether or no the defendant 
 was actuated by malicious motives. (See j^ost^ c. IX. 
 Malice.) 
 
 PART I. 
 
 I. OCCASIONS ABSOLUTELY PRIVILEGED. 
 
 As a rule, when words are published on a privileged 
 occasion, the privilege given them by the occasion is 
 only qualified^ that is the plaintiff can still be heard to 
 say that the defendant did not act under the privilege, 
 that he did not intend honestly to discharge a duty, but
 
 1 86 ABSOLUTE PRIVILEGE. 
 
 maliciously availed himself of the privileged occasion to 
 injui'e tlie plaintiff's reputation. But in certain cases 
 the privilege is absolute, and no action lies for words 
 uttered on such an occasion. There are not many such 
 cases, nor is it desirable that there should be many. 
 The Courts refuse to extend their number. {Stevens v. 
 Sampson, 5 Exch. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. E. 
 87 ; 41 L. T. 782.) In all of them the immunity is 
 afforded on the ground that it is "advantageous for the 
 public interests that such persons should not la any way 
 be fettered in their statements." 
 
 (i.) Parliamentary/ Proeeediitffs. 
 
 "No member of either House of Parliament is in any 
 way responsible in a court of justice for anything said in 
 the House. (Bill of Eights, 1 Wm. & Mary, st. 2, c. 2.) 
 And no indictment will lie for an alleged conspiracy by 
 members of either House to make speeches defamatory 
 of the plaintiff. {Fx parte Wason, L. E. 4 Q. B. 573 ; 
 38 L. J. Q. B. 302 ; 40 L. J. (M. C.) 168 ; 17 W. E. 881.) 
 But this 23rivilege does not extend outside the walls of 
 the House. Therefore, if a member 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; B. v. 
 Creevey, 1 M. & S. 273.) Though no doubt if a member 
 of the House of Commons merely printed his speech for 
 private circulation among his constituents there might 
 be a conditional privilege attaching to it, in the absence 
 of any malicious intent to injm-e the plaintijQt. (Per 
 Lord Campbell in Davison v. Duncan, 7 E. & B. 233 ; 
 26 L. J. Q. B. 107, and Cockburn, C.J., in Wason v. 
 Walter, L. E. 4 Q. B. 95 ; 8 B. & S. 730 ; 38 L. J. Q. 
 B. 42 ; 17 W. E. 169 ; 19 L. T. 416.)
 
 PROCEEDINGS IN PARLIAMENT. 187 
 
 But at common law, even if the whole House ordered 
 the j)ublication of parliamentary reports and papers, no 
 privilege attached. {R. v. Williams (1686), 2 Shower, 
 471 ; Comb. 18 (see, however, the comments on this 
 case m R. v. Wright (1799), 8 T. R. 293) ; StocMale v. 
 Hansard (1839), 2 Moo. and Eob. 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 Yict. c. 9, all 
 reports, papers, votes, and proceedings, 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 StocMale v. Hansard 
 (1840), 11 A. & E. 253, 297. 
 
 Reports in the newspapers of Parliamentary proceed- 
 ings are conditionally, not absolutely privileged. (See 
 post, p. 257.) 
 
 A petition to Parliament is absolutely privileged, 
 although it contain false and defamatory statements. 
 {Lake v. King, 1 Saund. 131 ; 1 Lev. 240*; 1 Mod. 58 ; 
 Sid. 414.) So is a petition to a committee of either 
 House. (See Kane v. Mulvawj, 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. 
 
 (ii.) Judicial Proceedings. 
 
 No action will lie for defama tory statements made or 
 sworn in the coiu-se of a judicial proceeding before 
 any Court of competent jurisdiction. Everything that 
 a judge says on the bench, or a witness in the box, or 
 counsel in arguing, is absolutely privileged, so long as it 
 is in any way connected with the inquiiy. So are all
 
 1 88 ABSOLUTE PRIVILEGE. 
 
 documents necessary to the conduct of the cause, such 
 as pleadings, affida\dts, and instructions to counsel. 
 This immunity rests on obvious grounds of public policy 
 and convenience. 
 
 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 
 A\ords to be false, and also that his words were ii-relevant 
 to the matter in issue before him, and wholly unwarranted 
 by the CA^dence. It is essential to the highest interests 
 of public policy to secure the free and fearless discharge 
 of high judicial functions. [Floyd v. BarJccr^ 12 Eep. 24.) 
 
 The judge of an inferior Coui't of record enjoys the 
 same immunity in this respect as the judge of a superior 
 Coui-t, 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 ^^ithout 
 jurisdiction, he is liable as an ordinary subject. [Houlden 
 V. Smith, 14 Q. B. 841 ; Calder v. HalM, 3 Moo. P. C. 
 C. 28.) And so he would be for words spoken after the 
 cause is at an end. (Paris v. Levy, 9 C. B. N. S. 342 ; 
 30 L. J. C. P. 11 ; 7 Jur. K S. 289 ; 9 W. E. 562 ; 3 
 L. T. 324 ; 6 L. T. 394.) A justice of the peace, how- 
 ever, does not enjoy quite so wide an immunity. An 
 action will lie against him for defamatorj^ words irrele- 
 vant to the matter in issue before him if they be spoken 
 maliciously and without reasonable or probable cause. 
 (See Kirhy v. Shupsoii, 10 Exch. 358; Gckn v. Hall, 2 
 H. & I^. 379.) But if the conduct of the plaintiff be a 
 matter relevant to the enquii-y, and the proceedings are 
 within the jurisdiction of the magistrate, lie may express 
 his opinion of such conduct Avitli the utmost freedom and 
 no action will lie. (See the remarks of Lord Coleridge, 
 C.J., in Seaman v. Netherclift, 1 C. P. D. 544 ; 45 L. J. 
 C. P. 798 ; 24 W. E. 884; 34 L. T. 878.)
 
 JUDICIAL PROCEEDINGS. 
 
 Illustrations. 
 
 No action will lie against a judge of one of the superior Courts for any- 
 judicial act, though it be alleged to have been done maliciously and 
 corruptly. 
 
 Frail ^'- BlacIAuni, 3 B. & S. 57G. 
 See Floyd v. Barker, 12 Rep. 24. 
 
 Groenvelt v. Burwell, 1 Ld. Rayu). 454, 4G8 ; 12 Mod. 388. 
 Dicas V. Lord Brougham, 6 C. & P. 249 ; 1 M. & R. 3()9. 
 Taaffe v. Downes, 3 Moo. P. C. C. 36, n. 
 
 Kemp V. Neville, 10 C. B. N. S. 523 ; 31 L. J. C. P. 158; 4 
 L. 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. Gas. 125. 
 A County Court judge, while sitting in Court and trying an action in 
 which the plaintiff was defendant, said to him : — " You are a harjjy, prey- 
 ing on the vitals of the 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 foundation whatever, and to have been wholly irrelevant to 
 the case before him. 
 
 Scott V. Stansfield, L. R. 3 Ex. 220; 37 L. J. Ex. 155 ; IG 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 be ; unless the j^laintiif can prove that the statement was wholly 
 irrelevant to the inquisition and not warranted by the occasion, the Coroner's 
 Court being " a Court of Recorel of very high authority." 
 
 Thomas v. Churton, 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 
 seditious, scandalous, corrupt, and perjured jury." 
 11. V. Skinner, Lolft. 55. 
 The judgmeut of a court-martial containing defamatory matter is abso- 
 lutely privileged, though it is not a court of record. 
 
 Jekyll V. Sir John Moore, 2 B. & P. N. R. 341 ; 6 Esp. 63. 
 Home V. Bentinck, 2 B. & B. 130 ; 4 Moore, 563. 
 Oliver v. Bentinck, 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 dis- 
 missed from the_force. Held, that no action lay, unless there was clear
 
 I90 ABSOLUTE PRIVILEGE. 
 
 proof both of express malice and of tlie absence of all reasonable and pro- 
 bable cause. Per Lord Denman, C. J., in 
 
 Kendilhn v. Maltby, 2 M. & Eob. 438 ; Car. & Mar. 402 ; 1 Dow. 
 
 & Clark, 495. 
 See also Allardice v. Eobertson, 1 Uow. N. S. 514 ; 1 Dow. & 
 Clark, 495 ; 6 Shaw & Dun. 242 ; 7 Shaw & Dun. 691 ; 4 
 Wil. & Shaw, App. Cas. 102. 
 Pratt V. Gardner, 2 Gushing (Massachusetts), 63. 
 But a magistrate's clerk has no right to make any observation on the 
 conduct of the parties before the court ; and no such observation will be 
 2:)rivileged. 
 
 Delegal v. Hnjhiey, 3 Bing. N. C. 950 ; 5 Scott, 154 ; 3 Hodges, 
 158 ; 8 C. & P. 444. 
 
 Counsel engaged in a cause are privileged to speak 
 any words, however defamatory, that are in accordance 
 with their instructions and arc pertinent to the matter in 
 question. They may draw any inferences from the facts 
 given in evidence, and make any imputations, however 
 calumnious : but they ought not to make reckless charges 
 of which they can give no evidence. For strong and 
 exaggerated words they cannot be called in question, 
 unless the charge conveyed by such words be wholly 
 unjustified by the evidence before the Court. (Brook 
 V. Sir Henry Montague (1G06), Cro. Jac. 90 ; Mackcuj v. 
 Ford, 5 H. & Ts^. 792 ; 29 L. J". Ex. 404 ; 6 Jm-. Ts^. S. 
 587 ; 8 W. E. 586 ; Hodgson v. Scarlett, 1 E. & Aid. 
 232.) The law, in fact, trusts a barrister " with a privi- 
 lege in respect of liberty of speech which is in practice 
 bounded only by his o^n sense of duty." [Per Erie, 
 C.J., 32 L. J". C. P. 147, 8.) 
 
 An attorney acting as an advocate in a county court 
 enjoys the same immunity as counsel. [Mackayx. Ford, 
 5 H. & l!^. 792.) So with a proctor in an ecclesiastical 
 court. {Higginson v. Flaliertg, 4 Ir. C. L. E. 125.) The 
 party himself, because of his ignorance of the proper 
 mode of conducting a case, is allowed even greater lati- 
 tude. {Per Holroyd, J., in Hodgson v. Scarlett, 1 B. &
 
 COUNSEL. WITNESSES. 191 
 
 Aid. 244.) Any observation made b}^ one of the jury 
 diu'ing the trial is equally privileged, provided it is 
 pertinent to the enquiry. {R. v. Skinner., Lofft. 55.) 
 And so is any presentment by a grand jury. 
 
 A witness in the box is absolutely privileged in 
 answering all the questions asked him by the counsel on 
 either side ; and even if he volunteers an observation (a 
 practice much to be discouraged) still if it has reference 
 to the matter in issue, or fairly arises out of any question 
 asked him by counsel, though only going to his credit, 
 such observation will also be privileged. [Seaman v. 
 Netherclift, 1 C. P. D. 540 ; 2 C. P. D. 53 ; 46 L. J. C. 
 P. 128.) But a remark made by a witness in the box, 
 wlioll}^ irrelevant to the matter of enquii'y, uncalled for 
 by any question of counsel, and introduced by the 
 witness maliciously for his own purposes, would not be 
 privileged, and would also probably be a contempt of 
 coui't. So, of course an observation made by a witness 
 while waiting about the Court, before or after he has 
 given his evidence, is not privileged. [Trotman v. Dunn, 
 4 Camp. 211 ; Lijnani v. Goiuing, 6 L. R. Ir. 259.) Nor 
 is a private letter written to the judge to influence his 
 decision. [Gould v. Hume, 3 C. & P. 625.) Such a letter 
 is strictly a contempt of coui't. 
 
 Every affidavit sworn in the course of a judicial pro- 
 ceeding before a Coiu't of competent jurisdiction is abso- 
 lutely privileged, and no action lies therefor, however 
 false and malicious may be the statements made therein. 
 {Revis V. Smith, 18 C. B. 126 ; 25 L. J. C. P. 195 ; 
 Henderson v. Broomhead, 4 H. & N. 569 ; 28 L. J. Ex. 
 360 ; 5 Jur. N. S. 1175.) So are all pleadings, and 
 instructions to counsel. [See Bank of British North 
 America v. Stroncj, 1 App. Cas. 307 ; 34 L. T. 627.) So 
 are articles of the peace exhibited against the j)laintiff. 
 The only exception is where an affidavit is sworn reck-
 
 192 ABSOLUTE PRIVILEGE. 
 
 Icssly and malicioiisl}' before a Court that has no jnris- 
 diction in the matter, and no power to entertain the 
 proceeding. {Bucldey v. TFoor/, 4 Eep. 14 ; Cro. Eliz. 
 230 ; R.y. Sallshirij.i 1 Ld. Eaym. 341 ; Lewis v. Levy, 
 E. B. & E. 554 ; 27 L. J. Q. B. 282 ; 4 Jnr. K S. 490.) 
 In all other cases the plaintiff's only remedy is to indict 
 the deponent for perjury, if he dare. [Doyle y. G'Dolierty, 
 Car. & Mar. 418; Astley v. Youngc, 2 Biut. 807.) The 
 Courtr-will however, sometimes order scandalous matter 
 in such an affidavit to be exjDunged. ( Christie v. Christie, 
 L. E. 8 Ch. 499 ; 42 L. J. Ch. 544 ; 21 W. E. 493 ; 28 
 L. T. 607.) But even for matter thus exjDunged, no 
 action can be brought. [Kennedy v. Hilliard, 10 Ir. C. 
 L. E. 195; 1 L. T. 578.) 
 
 In short, "neither party, witness, counsel, jury, or 
 judge can be jD^i^t to answer civilly or criminally for 
 ivords sjmJcen in office?'' [Per Lord Mansfield in R. v. 
 Skinner J Lofltt. 55.) 
 
 Illustrations. 
 
 Defemlant, an expert in liandwiiting, gave evidence in the Probate Court 
 in the trial of Davies v. Mmj, 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 •wdtness 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 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 Davies v. May : " 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 attest- 
 ing witnesses to the will : held, that the words were spoken by defendant as 
 a witness, and had reference to the inquiry before the magistrate, as they 
 tended to justify the defendant, whose credit as a witness had been im- 
 pugned ; and that the defendant was therefore absolutely privileged. 
 
 Seaman v. Nether clift, 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. E. 159 ; 35 L. T. 784. 
 A servant summoned his master before a Court of Conscience for a week's
 
 JUDICIAL PROCEEDINGS. 193 
 
 wages. The master said : " He has been transported before, and ought to 
 be transported again. He 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 aljout the room and not for the purpose of his 
 defence. 
 
 Trotman v. Dunn, 4 Camp. 211. [N.B. — The latter part of the 
 headnote to this case is misleading.] 
 A charge of felony made by the defendant when 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 Couit of Inquiry instituted under articles of war, are abso- 
 lutely privileged. 
 
 Keighley v. Bell, 4 F. & F. 763. 
 
 Daivhins v. Lord Rokehj, L. R. 8 Q. B. 255 ; 42 L. J. Q. B. 
 63 ; 21 W. R. 544 ; 4 F. & 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 will lie for defamatory expressions against a third party, con- 
 tained in an affidavit made and used in the proceedings in a cause, though 
 such statements be false, to the knowledge of the part}' 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. 
 Hartsock v. Reddick, 6 Blackf. (Indiana), 255. 
 If application be bond fide made to a Court which the defendant by a 
 pardonable error honestly believes to have a jurisdiction which it has not, 
 the privilege will not be lost merely by reason of this error. 
 Buckley v. JFood, 4 Rep. 14 ; Cro. Eliz. 230. 
 McGregor v. Thwaites, 3 B. & C. 24 ; 4 D. & R. 695. 
 Thorn v. Blanchard, 5 Johns. 508. 
 But in other cases an affidavit made voluntarily when no cause is 
 pending, or made coram non jiulice, is not privileged as a judicial 
 proceeding. 
 
 Muloney v. Bartley, 3 Camp. 210. 
 An attorney's bill of costs is in no sense a judicial proceeding, though 
 dcdivered under a judge's order, and can claim no privilege. 
 Ikuton v. Doivnes, 1 F. & F. 668. 
 Reports of judicial proceedings aw not aJisohiJchi privileged, however fair
 
 194 ABSOLUTE PRIVILEGE. 
 
 and accurate they may be ; the pLaintiff may still prove that the reporter 
 acted maliciously in sending the report to the newspaper. 
 
 iitemns v. Sami^son, 5 Exch. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. E. 
 87 ; 41 L. T. 782. 
 
 Salmon v. Isaac, 20 L. T. 885. 
 
 (iii.) Naval and Military affairs, 6^^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 coiu'se of 
 his duty, and to evidence given by any military man to 
 a court martial or other military court of enquiry ; it 
 being essential to the welfare and safety of the State 
 that military discipline should be maintained without 
 any interference 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. ISTaval and military matters are for naval and 
 military tribunals to determine, and not the ordinary 
 civil courts. [Hart v. Gumpach, L. E. 4 P. C. 439 ; 9 
 Moore P. C. C. Ts^. S. 241 ; 42 L. J. P. C. 25 ; 21 W. E. 
 365 ; DawJdm v. Lord Paulet, L. E. 5 Q. B. 94 ; 39 
 L. J. Q. B. 53; 18 W. E. 336; 21 L. T. 584; DaivJcins 
 V. Lord RoJcehj, L. E. 7 H. L. 744 ; 45 L. J". Q. B. 8 ; 
 23 W. E. 931 ; 33 L. T. 196 ; 4 F. & F. 806.) A simi- 
 larly 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 Cro^vn 
 by its ministers. 
 
 Illnstrations. 
 
 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-in-Chief in conformity Avith the Queen's Regulations for the 
 government of the army, a witness who gives evidence thereat stands in the 
 same situation as a witness giving e^ddence before a judicial tribunal, and
 
 MILITARY AND NAVAL AFFAIRS. 195 
 
 all statements made by him thereat, whether orally or in writing, having 
 reference to the subject of the inc[ixiry, are absolutely pri\dlegecl. 
 
 Daivkins v. Lord Rokeby, L. R. 7 H. L. 744 ; 45 L. J. Q. B. 8 ; 
 23 W. E. 931 ; 33 L. T. 196 ; in the Exch. Ch. L. R. 8 Q. B. 
 255. 
 
 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 
 military dutj^ forwarded to the Adjutant-General certain letters written 
 by the j^laintiff, and at the same time, also in accordance with his military 
 dut}', reported to the Commander-in-Chief on the contents of such letters, 
 using words defamatory of the plaintiff. It ^^■as alleged that the defendant 
 did so maliciously, 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, J.J.), that such reports being made in the course of 
 military duty were absolutely privileged, 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 probable cause to libel his fellow- 
 officer, that the courts of common law have 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 ojjpression to the opinion of a jury. 
 
 Dairkms v. Lord Paulet, L, R. 5 Q. B. 94 ; 39 L. J. Q. B. 53 ; 
 18 W. R. 336 ; 21 L. T. 584. 
 [X.B. — There was no appeal in this case. The arguments of Cockburn, 
 C.J., deserve the most careful attention. In Dawkins v. Lord Rokeby, supra, 
 the decision of the House of Lords turned entirely on the fact that the 
 defendant was a ■^^'itness. Neither Kelly, C.B. nor any of the Law Lords 
 (except perhaps Lord Penzance,) rest their judgment on the incompetenc)' 
 of a court of common law to inquire into purely military matters. The 
 Court of Exchecjuer Chamber no doubt express an opinion that " qiiestions 
 of military discipline and military duty 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 reasoning of L.C.J. Cockburn in 
 Daivkins v. Lord F. Paulet," the Court goes on to express its satisfaction 
 iliat the question " is yet open to tuial consideration before a court of the 
 last resort." However in a court of first instance, at all events, it miist 
 now be taken to be the law that the civil courts of common law can take 
 no cognisance of imrely military or jnirely naval matters (Sutton v. John- 
 stone (1785), 1 T. R. 493 ; Grant v. Gould (1792), 2 Hen. Bl. 69 ; Baridss 
 \. Keppel (1766), 2 Wils. 314) ; but wherever the civil rights of a person in 
 the military or naval service are affected by any alleged o^^pression or 
 injustiee at the hands of his superior officers or any illegal action on the 
 ])art of a military or naval tribunal, there the civil courts may interfere. 
 7/..' Manseryh, 1 B. & S. 400 ; 30 L. J. (Q. B.), 296 ; Warden v. Bailey, 4 
 Taunt. 67.] 
 
 2
 
 196 PRIVILEGED OCCASIONS. 
 
 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. 
 
 Dichon v. Earl of IVilton, 1 F. & F. 419. 
 Dickson v. Combcrmere, 3 F. & F. 527. 
 [N.B. — If this be not the distinction, these cases must be taken to be 
 overruled by the cases cited above. See L. E. 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 
 sucli removal was published in the Iiulian Gazette. Held, on demurrer, 
 that no action lay either for the removal 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 Coiuicil,Jj.Jl. 19 E(£. 
 
 509 ; 23 W. E. 773 ; 32 L. T. 294. 
 And Oliver v. Lord Wm. BentincJc, 3 Taunt. 456. 
 
 PART II. 
 
 II. QUALIFIED PEIVILEGE. 
 
 Cases of qualified privilege may be grouped under 
 three heads : 
 
 ij Where circumstauces cast upon the defendant the 
 duty of making a communication to a certain 
 other j)erson, to whom he makes such commu- 
 nication in the bond fide performance of such 
 duty. 
 
 II. Where the defendant has an interest in the sub- 
 ject matter of the communication, and the person 
 to whom he communicates it has a corresponding 
 interest. 
 III. Fair and impartial reports of fhi proceedings of 
 any Coiu't of Justice or of Parliament.
 
 QUALIFIED PRIVILEGE. tgj 
 
 In all these instances, if the communication has been 
 made fairly, impartially, mthout exaggeration or the 
 introcTucHon of irrelevant calumniatory matter, the com- 
 munication is held privileged. 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 draAv between them is 
 this : — in the first class of cases, the defendant makes 
 the communication, perhaps to an entire stranger, gene- 
 rallj^ to one mth 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 communication 
 is imder no corresponding obligation ; and generally has 
 no common interest with the defendant in the matter. 
 The defendant's duty would be the same to Avhomsoever 
 the communication had to be made. 
 
 In the second class of cases, however, there must have 
 been an intimate relationship or connexion already 
 established between the defendant 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 Avith whom 
 the defendant had no such connexion, would not be 
 privileged. 
 
 The thii'd class of eases 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 ensuiing that such proceedings should be 
 reported with accui-acy and uniformity. 
 
 Bond fide comments on matters of public interest, 
 which are sometimes treated as a fourth class of privi- 
 leged communications, have been dealt Avith under the 
 head of Defamatory Words, c. II., (intc^ pp. 34-52. 
 
 IL
 
 I 
 
 193 QUALIFIED PRIVILEGE. 
 
 I. Where circumstances exist, or are reasonably 
 
 BELIEVED BY THE DEFENDANT TO EXIST, WHICH CAST 
 UPON HIM THE DUTY OF MAKING A COMMUNICATION 
 TO A CERTAIN OTHER PERSON, TO WHOM HE MAKES 
 SUCH COMMUNICATION IN THE ^O.VJ FILE PERFORM- 
 ANCE 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 convenient therefore to treat these 
 cases in the following order : — 
 
 A. Communications made in piu'suance of a duty 
 owed to society. 
 
 (i.) Characters of servants, 
 (ii.) Other confidential communications of a private 
 
 natiu-e. 
 (iii.) Information given to an}^ public officer im- 
 puting crime or misconduct to others. 
 
 B. Communications made in self-defence. 
 
 (iv.j 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 imj)erfect 
 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. 
 {Whitelcy V. Adams, 15 C. B. N. S. 392 ; 33 L. J. C. P. 
 89 ; 12 W. E. 153 ; 9 L. T. 483 ; 10 Jur. IS". S. 470.)
 
 DUTY TO SOCIETY. 
 
 199 
 
 I 
 
 It is a question of lona fides., iu determining which 
 the Court will look at the cii-cumstances as they pre- 
 sented 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 wilfully shut his eyes 
 to any source of information. If indeed there Avere 
 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, there will be no pretence 
 for any claim of privilege. 
 
 Above all, the defendant must at the date of the com- 
 munication, 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 cii'culate lies. 
 
 " For, to entitle matter, otherwise libellous, to the 
 protection which attaches to communications made 
 in the fulfilment of a duty, hona fides., or, to use our 
 own equivalent, honesty of purpose, is essential; and 
 to this, again, two things are necessary ; I, 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 sense of duty; 2, that it be made 
 with a belief of its truth." (Per Cockburn, C.J., in 
 DaivJcins v. Lord Pcmlet., L. E. 5 Q. B. at p. 102.) 
 
 And even where the defendant, acting under a strong 
 sense of duty, makes a communication which he reason- 
 ably believes to be true, still he must be careful not to 
 be led aAvay by his honest indignation into exaggerated 
 or unwarrantable exjDressions. 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, I C. M. & K. 251 ; 4 Tyr. 
 850 ; Huntleij v. Ward, 6 C. B. N. S. 514 ; 1 F. & F.
 
 200 (2UALIFIED PRIVILEGE. 
 
 552 ; 6 Jur. JN". S. 18 ; tUmmonch v. Dunnc^ Ir. E. 5 C. L. 
 358.) 
 
 And GYen where the expressions employed are allow- 
 able in all respects, still the mode of publication may 
 take them out of the privilege. Confidential commui;ii- 
 cations should not be shouted across the street for all 
 passers-by to hear. Kor should they be committed to a 
 post card or a telegram, which others Avill read. They 
 should be sent in a letter properly sealed . and fastened. 
 If the words be spoken, the defendant must be careful 
 in whose presence 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 acci- 
 dental 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 pui'posely 
 sought an opportunity of making a communication prima 
 facie privileged in the presence of the very persons who 
 were most likely to act upon it to the prejudice of the 
 plaintiff. (See /'o-sf, c. IX. Malice.) 
 
 A. COMMUNICATIOXS MADE IN PUESUANCE 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 uj)on the former 
 master to state fidly and honestly all that he knows 
 either for or against the servant ; and any communica- 
 tion, made in the performance of this duty, is clearly 
 privileged for the sake of the common convenience of
 
 SERVANTS' CHARACTERS. 201 
 
 society, even though it should tm*n 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, deliherately states what he 
 knows to be false, and gives his late servant a bad cha- 
 racter, 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 express malice which 
 " takes the case out of the privilege." 
 
 No one is bound to give a character to his servant 
 when asked for it. {Carrol v. Bird, 3 Esp. 201.) The 
 old statute 5 Eliz. c. 4, which 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, has long been obsolete, and now is wholly 
 repealed by iha 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 ^\Titten to retract a favourable 
 character previously given, will also be privileged. 
 {Gardner v. ^lade, 13 Q. B. 796; 18 L. J. Q. B. 334; 
 13 Jur. 826 ; Child v. Affleck cV luife, 9 B. & C. 403 ; 4 
 M. & E. 338.) 
 
 So again if I take a servant Avith a good 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. Kinnerslejj, 1 5 C. B. N. S. 429 ;
 
 2or QUALIFIED PRIVILEGE. 
 
 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. Hcmkins, 10 
 C. B. 590 ; 20 L. J. C. P. 131 ; 15 Jui-. 450.) 
 
 Bnt if I happen to hear that a discharged servant of 
 mine is about to enter the service of B., it may be ques- 
 tioned whether it is my duty to write off at once and 
 inform B. of the servant's misconduct. It is certainly 
 safer to wait till B. applies to me for the servant's 
 character. Eagerness to prevent a former servant ob- 
 taining another place has the appearance of malice, 'and 
 if it were found that I wrote systematically to every 
 one to whom the plaintiif applied for work, the jury 
 would jDrobably 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 information, the occasion 
 would still be privileged. In short when a master 
 " volunteers to give the character, stronger evidence 
 will be required that he acted lona 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.) 
 
 lUustrations. 
 
 After a mercantile firm has given to one of its clerks a general recom- 
 mendation by means of -whicL. lie obtains a situation, if a partner subse- 
 cj^uently discover facts wliich 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 recommendation of the firm. 
 
 Fowlcs V. Boiven, 3 Tiffany (30 N. Y. E.), 20. 
 
 Sir Gervas Clifton never made any complaint of his butler's conduct wliile 
 he was with him ; but he s\;ddenly 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 policeman was sent for who forcibly ejected the butler. 
 Sir Gervas subsequently gave the butler a very bad character, in too strong
 
 CONFTDENTTAL COMMUNICATIONS. 203 
 
 terms, and making some charges against him which were wholly unfounded. 
 Verdict for the plaintiff. Damages, £20. New trial refused. 
 Rogers v. Clifion, 3 B. & P. 587. 
 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 lier that he would say nothing 
 about it if she ]-esumed her employment at his house ; subsequently he said 
 that if she would acknowledge the theft he would give her a character. 
 Hdd, 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. Hopim'ton, IG C. B. N. S. 829 ; 12 W. E. 913 ; 10 
 L. T. 529. 
 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 
 privilege from words which the master then uses, imputing dishonesty. 
 
 Taylor v. Haivhins, 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 
 746. 
 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 commu- 
 nications as respected the absent parties, as well as those to whom they 
 were respectively made. 
 
 Manhy v. Witt, \ IS C. B. 544 ; 25 L. J. C. P. 294 ; 2 Jur. 
 Eadmead v. Witt ] N. S. 1004. 
 
 (ii.) Other confidential communications of a private 
 nature. 
 
 [a) Answers to confidential inquiries. 
 
 The principles which apply to characters given to 
 servants, govern also all other answers to priva te_and 
 confide ntiaHnguirigs . 
 
 If the owner of a vacant farm ask me as to the cha- 
 racter of a person applying to become his tenant, my 
 answer would be privileged. So if a friend of mine 
 comes down into the country to live near me, and asks 
 my advice as to the tradesmen, or doctor, he shall 
 employ, I may tell him my opinion of the various trades-
 
 204 QUALIFIED PRIVILEGE. 
 
 men, or doctors, in tlie locality, without fear of an action 
 for slander. 
 
 In short, ^vlienever in answering an inquii*y the de- 
 7 fendant is acting bond fide in the discharge of any legal, 
 j moral, or social duty, 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 inquiiy is made." 
 {Pel- Grove, J., in Rohshaw v. Smithy 38 L. T. 423. And 
 see Lentner v. Mer field (C. A.) ; Times for May 6th, 
 1880.) 
 
 So too it is a duty every one owes to society to assist 
 in the discovery of a criminal, and to afford all informa- 
 tion which will lead to his conviction. " It is a perfectly 
 privileged commimieation, if a party who is interested 
 in discovering a ^\Tong doer, comes and makes inquiries 
 and a person in answer makes a discovery, or a bond fide 
 communication which he laiows, or believes to be true, 
 although it may possibly aifect the character of a third 
 person." {Per Parke, B., in Kme v. iSV?/r//, 3 M. & ^\ . 
 302.) 
 
 And when once such a confidential inquiry is set on 
 foot, all subsequent intervicT^s between the parties will 
 be privileged, so long as Avliat takes place thereat is still 
 relevant to the original inquir3\ {Beatson v. Skene, 5 
 H. & N. 838 ; 29 L. J. Ex. 430 ; 6 Jm-. ]^. S. 780 ; 2 L. T. 
 378 ; Hoptvood v. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 
 14 Jur. 87; Wallace v. Carroll, 11 Ir. C. L. E. 485.) 
 
 Of course the defendant must honestlv believe in the 
 truth of the jJiajmLhe inakes at the time he makes it. 
 And this implies that he must have some ground for the 
 assertion : it need not be a conclusive 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 yom- means 
 of knowledge ; if your only means of knowledge is hear-
 
 CONFIDENTIAL ADVICE. 205 
 
 say, 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 informa- 
 tion you possess is contained in a letter, it is best to give 
 him the letter and leave him to draw his own conclu- 
 sions. {Coxhcad v. Richards, 2 C. B. 5G9 ; 15 L. J. C. P. 
 278 ; 10 Jur. 984 ; Rohshaiu v. Smth, 38 L. T. 423.) 
 Do not speak with the aii' of knowing of your own 
 knowledge every word you say to be the fact, when you 
 are merely repeating gossip or hazarding a series of 
 reckless 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 conscientiously : it should be 
 manifest that you do not take a pleasm^e 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. {Southam v. Allen, Sir T. Eaym. 231 ; 
 Himtlejj V. Ward, 6 C. B. ^. S. 514.) It is for the jury 
 in each case 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 uie lie wants a good solicitor to act for him, and asks my 
 opinion of Smith, I am justitied 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?" 1 should not, it is submitted, he i)rivileged in reiilyiiig : "Yes, 
 hut he ought to have been struck off the rolls long ago." 
 
 If A. is about to have dealings with B., Ijut first comes to C. and confi- 
 dentially asks him his opinion of J 5., C.'s answer is privileged. " Every one
 
 2o6 - QUALIFIED PRIVILEGE. 
 
 is qviite at libertj- to state liis opinion '^ond fide of the respectability of a 
 party thiis iiKj^iiired about." Per Lord Denman in 
 Storeij V. Challands, 8 C. & P. 234. 
 Plaintiff had been tenant to the defendant ; a wine-broker went to defen- 
 dant to ask him plaintiff's present address. Defendant commenced to abuse 
 the plaintiff. The broker said : " I don't come to enquire about his 
 character, but only for his address; I have done business with him before." 
 But the defendant continued to denounce the plaintiff as a swindler, adding 
 liowever, " 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 maliciousl}". 
 Picton V. Jachiian, 4 C. & P. 257. 
 Southam v. Allen, Sir T. Raymond, 231. 
 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 consequence 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 frimd facie 
 privileged. 
 
 Bromage v. Prosscr, 4 B. & Cr. 247 ; 1 C. & 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 charitj' from which office he was about to 
 
 be removed. The defendant refused to sign, and on being pressed for his 
 
 reasons, stated them explicitly. Held, a privileged communication. 
 
 Coides V. Potts, 34 L. J. Q. B. 247 ; 11 Jur. N. S. 946 ; 13 ^Y. 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' was 
 placed imder the superior command of General Vivian. The plaintiff' then 
 resigned his command, and General Vivian directed General Shirley to 
 inquire and repoit on the state of the corps, and particularly referred him 
 for information on the matter to the defendant, who was General Vivian's 
 private secretary and civil commissioner. All communications made by the 
 defendant to General Shirley touching the corps and the plaintiff's manage- 
 ment 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 ; U 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 oft'ence : I 
 
 wish to consult you whether I should divulge it — whether I should speak
 
 CONFIDENTIAL COMMUNICA TIONS. 207 
 
 of it to the commanding officer." Such remark and the discuKsiou that 
 ensued woiUd be privileged, if bond fide. Per Pigot, C.B., in 
 
 Bell V. Parke, 10 Ir. C. L. R. 284. [The decision in the case 
 turned on the hmguage of the plea.] 
 The plaintiff was a London merchant who liad had business relations with 
 the London and Yorkshire Bank (Limited). The defendant, the manager 
 of that bank, on being applied to by one Hudson for information about the 
 plaintiff, showed Hudson an anonymous letter whirh the bank had received 
 about the plaintiff', and which contained the libel in question. Held, that 
 handing Hudson 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 informa- 
 tion. When applied to he did give such information as he possessed. He 
 might have refused to give that information. He had no legal duty cast 
 upon him to give any opinion. But he was entitled to give his opinion 
 when asked, and il fortiori, as it seems to me, to show any letters he had 
 received bearing on the subject. If one man shows another a letter, he 
 leaves him to estimate what ^•alue attaches to it ; whereas any opinion he 
 gives might be based on very insufficient grounds. It is better to state 
 facts than to give an opinion. Everyone owes it as a duty to his fellow- 
 men to state what he knows about a person, when inquiry is made ; other- 
 wise no one would be able to discern honest men from dishonest men. It 
 is highly desirable, therefore, that a privilege of this sort should be main- 
 tained. An anonymous letter is usually a very despicable thing. But 
 anonymous letters may be very important, not by reason of what they say, 
 but because they lead to inquiry, which may substantiate what they liaA'e 
 .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. 
 
 (h) Confidential communications not in amwer to a 
 Ijremous inqiiir/j. 
 
 In the cases just quoted stress is laid on tlie fact that 
 the defendant did not vohmteer the information, but was 
 expressly applied to for it. This is always no doubt a 
 very material fact in the defendant's favour ; but it is 
 never alone decisive. 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 Ave have seen, many answers to inquiries will not 
 necessarily be privileged, even if giA'en confidentially. 
 The question in every case is this : — Were the circuni-
 
 2o8 QUALIFIED PRIVILEGE. 
 
 stances such that an lionest man might reasonably 
 supj)ose it his duty to act as the tk^fendant 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 
 Avaiting for him to come and inquire. It may well be 
 that he has no suspicions, and never would inquire into 
 the matter unless Avarned. (See post, pp. 213-219.) 
 
 But iu cases Avhere neither life nor property is in immi- 
 nent and obvious peril, there the circumstance that the 
 defendant was applied to for the information, and did 
 not volunteer it, Avill materially affect the issue. Where 
 the matter is not of great or immediate importance, 
 interference on my part may be considered officious and 
 meddlesome; although, under the same circumstances, 
 every one would at once admit that it would have been 
 my duty to give all the information iu my power, had I 
 been applied to for it. An answer to a confidential 
 inquiry may be privileged where the same information if 
 volunteered would be actionable. Thus I am not justi- 
 fied in standing at the door of a tradesman's shop and 
 voluntaril}^ defaming his character to his intending cus- 
 tomers. But if an intending customer comes to me and 
 inquires as to the respectability or credit of that trades- 
 man, it is my duty to tell him all I know. (Store// v. 
 Chaltands, 8 C. & P. 234.) 
 
 In cases then in which there can be a doubt as to the 
 defendant's duty to speak, the fact that he was applied 
 to for the information will tell stronglj' in his favour. 
 In cases where his duty to speak was clear without that, 
 the fact that he was applied to is immaterial. 
 
 Ill uat rat Ions. 
 
 Both the Mar(|uis of Anglesey and his agent tohl the defendant, the 
 tenant of Haywood Park Farm, to inform them if he saw or heard anything
 
 CONFIDENTIAL RELATION. 209 
 
 wrong respecting the game. Tlie defendant heard that the gamekeeper was 
 selling the game, and believing the fact to be so, wrote and informed the 
 Marquis. Held, that the letter was privileged ; but Parke, J., intimated 
 that if the defendant had not been previously directed to communicate 
 anything he thought going wrong, the letter would have been unauthorised 
 and libellous. 
 
 Cockaijne 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 acted hond fide than it would had he waited for 
 M. to write and enquire. 
 
 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 un- 
 principled man," &c. Lord Denman directed a verdict for the plaintiff, 
 l)eeause 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, appa- 
 rently a total stranger, wrote to Nash to deprecate his so employing the 
 plaintiff. This was held to be clearly not a confidential communication. 
 Damages, Is, 
 
 Godson V. Home, 1 B. & B. 7 ; 3 Moore, 223. 
 
 At the hearing of a County Court case, Nettlefold v. Fulcher, Fulcher's 
 solicitor commented severely on the conduct of the plaintiff, Nettlefold's 
 debt collector. Not content with that, Fulcher's solicitor sent a full report 
 of the case to the Marijlebone 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. 
 
 Steve7is V. Samjjson, 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 hetiveen the 
 'parties. 
 
 In what cases then will a defendant be 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
 
 2IO QUALIFIED PRIVILEGE. 
 
 class of cases it is clear that it is not only excnsable, but 
 that it is imperative on the defendant so to do ; and that 
 is where there exists between the parties such a confi- 
 dential relation as to throw on the defendant the duty of 
 protecting the interests of the person concerned. 
 
 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 
 7 may voluntarily write and inform me of any thing whicli 
 ;/ he thinks it is to my advantage to know, without wait- 
 '■ ing for me to come down to his office and enquii*e. But 
 it would be dangerous for another solicitor, whom I had 
 never em]3lo3^ed, to volunteer the same information ; for 
 till I retain him in the matter, there is no confidential 
 relation existing between us. So a father, guardian, or 
 I an intimate friend may warn a young man against asso- 
 i dating with a particular individual ; or may warn a lady 
 not to marry a particular suitor; though in the same 
 circumstances it might be considered ofiicious and med- 
 dlesome, 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 
 anj" 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 ranli 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 otvti work merely and have not invested 
 him with any authority or control over B. (See Bell v. 
 Farle, 10 Ir. C. L. E. 284 ; 11 Ir. C. L. E. 413.) 
 A confidential relationship then clearly exists where the
 
 CONFIDENTIAL RELATION. 2u 
 
 j^arties are principal and agent, solicitor and client, 
 guardian and ward, partners, or even intimate friends : 
 in short whereyer any trust or confidence is reposed by 
 the one in the other. Or, changing the point of view, 
 we may say that it will be the duty of A. to volunteer 
 information to B., whenever B. could justly reproach A. 
 for his silence 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. Jachnan^ 
 4 C. & P. 257.) 
 
 Illustrations. 
 
 My regular solicitor may unasked give me any information concerning 
 third peTBtrnTof which he thinks it to mj-Jaterest that I should be informed, 
 even although he is not at the moment conducting any legal proceedings 
 for me. 
 
 Davis V. Reeves, 5 Ir. C. L. E. 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. 
 Rumours being in circulation prejudicial to the character of the plaintiff, 
 a dissenting minister, he courted inipiiry, and appointed A. to sift the 
 matter thoroughly. It was agreed that the defendant should represent the 
 malcontent portion of the congregation, and state the case against 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 enquiry lasted, and relative thereto, 
 was held to be privileged. 
 
 Iloprood V. Tlwrn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 
 A report l)y tlie Comptroller of the Navy to the Board of Admiralty upon 
 the plans and proposals of a naval architect is clearly privileged. Per 
 Grove, .J., in 
 
 Henu'ood v. Harrison, L. R. 7 C. P. 600 ; 41 L. J. C. P. 206 ; 20 
 W. R. 1000 ; 26 L. T. 938. 
 A timekeeper employed on public Avorks, on behalf of a public depart- 
 ment, wTote a letter to the secretary of the department, imputing fraud to 
 the contractor. Blackburn, J., directed the jury that if they thought the 
 letter was -wTitten in good faith and in the discharge of the defendant's 
 duty to his employers, it was privileged, although written to the wrong person. 
 
 Hcarll V. Dixon, 4 F. & F. 250. 
 
 p 2
 
 212 QUALIFIED PRIVILEGE. 
 
 A relation or intimate friend may confidentially advise a lady not to 
 marry a particular suitor, and assign reasons, provided lie really believes in 
 the truth of the statements he makes. 
 
 Todd V. Ilaxvkws, 2 M. & Rob. 20 ; 8 C. & P. S88. 
 The defendant and Tinmonth were joint owners of The Rohinson, and 
 engaged the plaintift' as master ; in April, 1843, defendant purchased Tin- 
 mouth's share ; in August, 1843, defendant wrote a business letter to Tin- 
 mouth, claiming a return of £150, and incidentally libelled the plaintiff. 
 Held, a privileged communication, as the defendant and Tinmouth were 
 still in confidential relationship. 
 
 IFilson V. Eobinson, 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 l^e sent home, and giving his reasons for her dismissal. Cockburn, 
 C.J., held tliis letter privileged ; as there was clearly a confidential relation- 
 ship between the girl's master and her parents. 
 
 James v. Jolly, Bristol Summer Assizes, 1879, ex relatione mea. 
 See Fowler and ivife v. Homer, 3 Camp. 294. 
 The officers and men of the garrison of St. Helena gave an entertainment 
 at the theatre, at wliich. considerable noise and disturbance took place. The 
 commanding officer was informed that this was caused by the plaintiff, who 
 was said to have been drunk. The plaintift' was an assistant master in tlie 
 Government School. The commanding officer rej^orted the circumstances 
 to the colonial secretary of the island, and the plaintift' was in consecpience 
 suspended from his appointment. Verdict for the plaintift' disapproved and 
 set aside, and judgment arrested. 
 
 Stace V. Griffith, L. R. 2 P. C. 420 ; 6 Moore, P. C. C. X. 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. 
 
 Humev. Marshall (Cockbum, C.J.), Times of Nov. 26, 1877. 
 But where, after an election, the agent of the defeated candidate wrote a 
 letter to the agent of the successful candidate, asserting that the plaintift" 
 and another (both members of the successful candidate's committee) had 
 bribed a particular voter, the letter was held not to be privileged, as there 
 was no confidential relation existing between the two agents. 
 
 Dickeson v. 'Hilliard and another, L. R. 9 Exch. 79; 43 L. J. Ex, 
 37 ; 22 W. R. 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 
 communication. 
 
 Getting v. Foss, 3 C. & P. 160. 
 
 See 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.
 
 INFORMATION VOLUNTEERED. 213 
 
 {d') Information volunteered tvhen there is no confidential 
 Telationship existing between the jyarties. 
 
 Where neitlier the defendant himself, nor any one 
 with whom he has confidential relations, is interested in 
 the snbject matter of the commnnication, it is very dif- 
 ficult to define what circnmstances will be sufficient to 
 impose on him the duty of volunteering information to 
 the prejudice of the plaintiff. There is no rule of law 
 on the point. It is a question rather of moral or social 
 ethics. Unless the judge is clearly of opinion that there 
 are no circumstances to raise a suggestion of privilege, 
 he will in OA^ery such case leave it to the jury to deter- 
 mine whether the defendant acted hona fide in the 
 execution of what he honestly believed to be his duty. 
 The jury must not ask themselves merely — " Should we 
 have acted as the defendant has done in such cii'cum- 
 stances?" for different people act differently in similar 
 perplexities. Moreover the matter has been thoroughly 
 investigated before it comes before the jury, and what 
 to the defendant at the time seemed matter of serious 
 susj)icion has all been explained away in court. The 
 jiuy must place themselves in the position of the de- 
 fendant at the time these suspicious circumstances were 
 brought to liis knowledge, when first the question arose 
 in his mind : — " Ought I not to inform A. of these 
 matters which so nearly concern him ? " It may well be 
 that another man would have said, "It is no concern of 
 mine," and would do nothing (Avhich is always the safer 
 cou]'se). But if the defendant honestly felt that he 
 could not conscientiously allow A. to continue in secure 
 ignorance, that he must communicate to him the rumour, 
 he had heard, and if he had reasonable grounds for so 
 feeling, that is sufficient. It is not necessary that the 
 reports which reach the defendant should be true, or
 
 214 QUALIFIED PRIVILEGE. 
 
 that he shouhl thoroughly investigate them. Hearsay 
 i^jufficdfiiLLl'easonable and probable cause in the ab sence 
 "7 K mali ce {^Maitland v. Bramivell^ 2 F. & F. 623; 
 Coxhead v. Richards, 2 C. B. 5G9 ; 15 L. J. C. P. 278 ; 
 Lister V. Pcrnjman, L. E. 4 H. L. 521 ; 39 L. J. Ex. 
 177; 23L. T. 2G9); unless the defendant ought for any 
 reason to have known that his informant was unreliable, 
 and his story undeserving of belief. 
 
 The defendant is entitled to judgment if the jiuy find 
 that he reasonably acted under an honest sense of duty, 
 desiring to serve the person most concerned, and not 
 from any self-seeking motive. But there must be some 
 cii'cumstances proved before them, showing that such a 
 sense of duty was reasonably j)Ossible. It is not sufficient 
 for the defendant merely to swear : "I acted under a 
 sense of duty." The defendant is not to be punished 
 for merely being over-conscientious; but on the other 
 hand it is clear law that a man is not justified in repeat- 
 ing information he has received prejudicial to the plain- 
 tiff, merely because he sincerely believes it to be true. 
 {Botterill V. Whitehead, 41 L. T. 588.) 
 
 It might be argued that in using the words " reasonably " 
 and "if he had reasonable grounds for so feeling," I am running 
 counter to Clark v. Molyneux, 3 Q. B. D. 237 ; 47 L. J. Q. B. 
 230 ; 26 W. B. 104 ; 36 L. T. 466 ; 37 L. T. 694. But I think 
 that decision is confined to cases of clear privilege, where the 
 only question is as to evidence of express malice. Here we are 
 dealing with the previous question, privilege or no privilege. 
 
 The law on the j)oint cannot be better expressed than 
 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 thii'd person certain facts, then 
 if he bo7id fide and without malice does tell them it is a 
 privileged communication." (Fcr Blackburn, J., in
 
 INFORMATION VOLUNTEERED. 215 
 
 Davies v. Snead, L. E. 5 Q. B. 611 ; 39 L. J. Q. B. 202 ; 
 23 L. T. 609.) The only clifRciilty 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. 
 
 In some cases the judge decides this point without 
 the help of ^^ jury by ruling that no prima facie case 
 of j)rivilege has at all been established. And undoubt- 
 edly it is the province of the judge to decide whether a 
 communication is privileged or not, when the facts are 
 undisputed. But it is submitted that in cases where the 
 defendant alleges that he acted under an honest, though 
 mistaken, sense of duty, the judge should take the 
 opinion of the jury on the question of hona fides, unless 
 he feels certain that no other reasonable man, except the 
 defendant, would have felt it his duty to act as the 
 defendant did in similar circumstances. 
 
 In Bennett v. Deacon, 2 C. B. 628 ; 15 L. J. C. P. 289, the 
 Court of Common Pleas were equally divided on the question 
 Avliethcr the judge was right in ruling that the communication 
 could not be privileged, and leaving no question to the jury as 
 to the defendant's hona fides. In Coxhead v. Richards, 2 C. B. 
 509 ; 15 L. J. C. P. 278 ; 10 Jur. 984, the judge had left the 
 question to the jury, and the same Court was equally divided 
 as to whether he was right in so doing. In each case, therefore, 
 the rule dropped, and the verdict stood, and, as in the former 
 case the verdict had necessarily been for the plaintiff, owing to 
 the judge's ruling, and in the latter case it was for the defen- 
 dant, the law now stands in this somewhat contradictory state : — 
 A man may not give a tradesman a bond fide caution not to trust 
 the plaintiff, though the facts stated be within defendant's own 
 knowledge ; he must wait till the tradesman applies to him for 
 his advice; but, on the other hand, a man may inform a ship- 
 owner of his captain's misconduct, though he does not know 
 it of his own knowledge but only tlirough others. The very 
 similar case of Harwood v. Green, 3 C. & P. 14>1, post, p. 288,
 
 2i6 (2UALIFIED PRIVILEGE. 
 
 was not cited in the argument of Coxhead v. Richards ; in 
 that case it was decided that a letter written to Lloyd's by a 
 lieutenant in the navy as to the misconduct of the captain of a 
 transport ship on board which the lieutenant had been super- 
 intendent was not a privileged communication. So too it is 
 difficult to distinguish Brooks v. Blanshard, 1 Cr. & Mees. 779 ; 
 3 Tyrw. 844; from Harris v. T/wmj^son, 13 C. B. 333. In both 
 cases the communication appears to have been volunteered. In 
 Harnett v. Vise and wife, 5 Ex. D. 307 ; 29 W. R. 7, the judge 
 and the jury took opposite views of the defendants' conduct. 
 
 If such differences of opinion appear in the reported decisions 
 of the Law Courts, how much greater must be the perplexity 
 of a defendant uneducated in casuistry who suddenly finds 
 himself called upon to solve a doubtful problem in social 
 morality. 
 
 It appears to be clear that if the defendant reasonably 
 supposes that human life would be seriously imperilled 
 by his remaining silent he may volunteer information to 
 those thus endangered, or to their master, though he be 
 not himself personally concerned (see 2^^'' Cress well, J., 
 2 C. B. G05). So if the money or goods of the person 
 to whom he speaks would be in great and obvious 
 danger of being stolen or destroyed. So too it appears 
 that the defendant may, without being applied to for 
 the information, acquaint a master with the misconduct 
 of his servants, if instances thereof have come under the 
 especial notice of the defendant and have been concealed 
 from the master's eye. But in most other cases the 
 defendant runs a great risk in volunteering statements 
 which afterwards turn out to be inaccurate, unless 
 indeed he is himself personally interested in the matter, 
 or compelled to interfere by llie fiduciary relationship in 
 which he stands to some person concerned. Although 
 the defendant 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
 
 DUTY TO SPEAK. 217 
 
 eventually turn out, that in endeavouring to avert a 
 fancied injury to that neighboui", he has really inflicted 
 an undoubted and undeserved injury on the plaintiff. 
 
 Illustrations. 
 
 A. and B. are tenants to the same landlord with similar clauses in their 
 respective leases. ^. has reason to believe t^iat i?. is breaking his cove- 
 nants, committing waste, violating the rotation of crops, &c. The landlord 
 is away abroad. It is submitted on the authority of Cockayne v. Hodghis- 
 son, 5 C. & P. 543, ante, p. 208, that it is not the duty of A. to write and 
 inform the landlord of his suspicions, 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 some- 
 thing which reasonably appears to her inconsistent with the cook's inno- 
 cence, she will be privileged, it is submitted, in giving information thereof 
 to her master. 
 
 Communications confidentially made to a master as to the conduct of his 
 servants, by one who has had an opportunity of noticing certain malprac- 
 tices on their part, are privileged. 
 
 Cleaver v. Sarraude, 1 Camp. 268. 
 Kine v. Se^vell, 3 M. & W. 297. 
 
 Amann v. Damm, 8 C. B. N. S. 597 ; 29 L. J. C. P. 313 ; 7 
 Jur. N. S. 47 ; 8 W. E. 470. 
 The occu})ier of a house may complain to the landlord of the workmen 
 he has sent to rejiair the house. 
 
 Toofjood V. Spyring, 1 C. M. & R. 181 ; 4 Tyrw. 582. 
 If a report be current in a parish as to the disgraceful conduct of the 
 incumbent, brmging scandal on the church, a good churchman may inform 
 the Bisliop of the diocese thereof, although he does not reside in the district 
 and is not personally interested. 
 
 James v. Boston, 2 C. & K. 4. 
 A letter written by a private indivitlual to the chief secretary of the 
 Post-Master General complaining of the misconduct of an official under the 
 authority of the Post-Master General, is privileged, if made bond fide and 
 without malice, even thougli some of the charges made in the letter may 
 not be true, and though the defendant stood in no relation, past or present, 
 either to the plaintiff or to the Post Office authorities. 
 Blake v. Filfold, 1 Moo. & Rob. 198. 
 Woodward v. Lander, 6 C. & P. 548. 
 The first mate of a merchant ship, wrote a letter to the defendant, an old 
 and intimate friend, stating that he was placed in a very awkward position 
 owing to the drunken habits, &c., of the captain, and saying : — " How shall
 
 21 8 (QUALIFIED PRIVILEGE. 
 
 I act ? It is my duty to write to ]\f r. Ward (the owner of the ship), Ijut 
 my doing so would ruin " the captain and his wife and family. The defen- 
 dant, after much deliheration and consultation with other nautical friends, 
 thought it his duty to show the letter to Ward, who thereupon dismissed 
 the captain. The defendant knew nothing of the matter except from the 
 mate's letter. The Court of C. P. was equally divided on the question 
 whether so showing the letter was privileged ; and therefore the verdict 
 for the defendant stood. 
 
 GoxluaA V. Richards, 2 C. B. 569 ; 15 L. J. C. P. 278 ; 10 Jur. 
 
 984. Approved by Willes, J., in 
 Amann v. Damm, 8 C. B. N. S. 597 ; 29 L. J. C. P. 313. 
 And see Harwoocl v. Green, 3 C. & P. 141 ; 'post, p. 288. 
 Defendant met Clark in the road, and asked him if he had sold his 
 timber yet. Clark replied that Bennett (plaintiff) was going to have it. 
 Defendant asked if he was going to pay ready-money for it, and being 
 answered in the negative, said, " Then you'll lose your timber ; for 
 Bennett owes me about £25, and I am going to arrest him next week 
 for my money, and your timber will help to pay my debt." Clark con- 
 sequently declined to sell the timber to the plaintiff. Plaintiff really 
 did owe defendant about £23. Coltman, J., directed the jury that the 
 caution was altogether unprivileged because volunteered : and they therefore 
 found a verdict for the plaintiff, damages 40s. The Court of C. P. were 
 equally divided on the c^uestion whether the judge was right in his 
 direction, and therefore the verdict- for the plaintiff stood. 
 
 Bennett v. Deacon, 2 C. B. 628 ; 15 L. J. C. P. 289. 
 See King v. WaUs, 8 C. & P. 615. 
 A. and B. were shareholders in the same railway company. B. was 
 also a Eiver Commissioner. The plaintiff had been engineer to the rail- 
 way company and was seeking to be elected engineer to the River Com- 
 missioners. Shortly before the election, A. voluntarily wrote to B. that 
 the plaintiff's mismanagement or ignorance had .cost the railway company 
 several thousand pounds. The plaintiff lost the appointment in conse- 
 quence. Held not a privileged communication. 
 
 Brooks V. Blanshard, 1 Cr. & Mees. 779 ; 3 Tyrw. 844. 
 The defendant was a director of two companies ; of one of which the 
 plaintiff was secretary, of the other auditor. The plaintiff was dismissed 
 from his post as secretary of the first company for alleged misconduct. 
 Thereupon the defendant, at the next meeting of the board of the second 
 company, informed his co-directors of this fact, and proposed that he 
 should also be dismissed from his post of auditor of the second company. 
 Held a privileged communication. 
 
 Harris v. Thompson, 13 C. B. 333. 
 Dawes told the defendant that he intended to emjiloy the plaintiff as 
 surgeon and accoucheur at his wife's ai^proaching confine oient ; the de- 
 fendant thereupon advised him not to do so, on account of the plaintiff's 
 alleged immorality. Martin, B., thought this was a ^jrivileged communi- 
 cation, though it was volunteered. 
 
 Dixon v. Smith, 29 L. J. Ex. 125 ; 5 H. & N. 450.
 
 INFORMATION VOLUATEERED. 219 
 
 The defendant, a parisliioner, mentioned to her rector a report, widely- 
 current in the parish, that the rector and his solicitor were grossly mis- 
 managing a trust estate, and defrauding the widow and orphans, &c. 
 The solicitor brought an action for the slander. The jury found that 
 she did so in the honest belief that it was a benefit to the rector to 
 infomi him of the report in order that he might clear his character. 
 The Court held that the statement was clearly privileged so far as the 
 rector was concerned, and that as the statement was not divisible it 
 must also be privileged with regard to the plaintiff. 
 
 Davies v. Snead, L. E. 5 Q. B. 611 ; 39 L. J. Q. B. 202 ; 23 L. 
 T. 609. 
 
 Information given to a vicar absent on the continent as to rumours 
 affecting the moral character of the curate he has left in charge is privi- 
 leged : so is similar information given verbally to the absent vicar's 
 solicitor, with a view to his informing the vicar, should he think it 
 right to do so : so is similar information given to a neighbouring vicar 
 who has asked the curate in charge to preach for him. 
 
 Clarh V. Molynmx, 3 Q. B. D. 237 ; 47 L. J. Q. B. 230 ; 26 W. 
 E. 104 ; 36 L. T. 466 ; 37 L. T. 694 ; 14 Cox, C. C. 10. 
 
 The plaintiff, an architect, had been employed by a certain committee to 
 superintend and carry out the restoration of Skirlaugh Church ; there- 
 upon the defendant, ^\ ho was a clergyman residing in the county^, but who 
 had no manner of interest in the question of the employment of the 
 plaintiff to execute the work, wrote a letter to a member of the committee 
 saying, " I see that the restoration of Skirlaugh Church has fallen into the 
 hands of an architect who is a Wesleyan and can have 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 ? " The letter was clearly a libel on the plaintiff 
 in the way of his profession or calling. Bramwell, L.J., thought it was 
 privileged, because the restoration was a matter of public interest, and one 
 in which a neighbouring clergyman would be especially interested ; but a 
 special jury found that there was evidence of malice in the unfair expres- 
 sions employed and gave the plaintiffs £50 damages. But Kelly, C.B., on 
 a motion for a new trial, declared that he was '• at a loss to see what 
 privilege the defendant possessed, under the circumstances of the case, to 
 interfere between the committee and the plaintift's in respect of the con- 
 tract between them ; the defendant being neither the patron, nor the 
 minister of the church, nor a member of the committee appointed to 
 effect its restoration, nor even a parishioner." 
 
 [It did not appear that the defendant was even a subscriber to the 
 restoration fund.] 
 
 Botterill and another v. Whytdiead , 41 L. T. 588.
 
 220 QUALIFIED PRIVILEGE. 
 
 (iii.) Information given to any public officer imputing * 
 crime or misconduct to others. 
 
 It is a duty whicli every one owes to society and to 
 
 the State to assist in the investigation of any alleged 
 
 misconduct, and to promote tlie detection of any crime. 
 
 And tliis duty does not arise merely when confidential 
 
 inquiries are made. If facts come under my knowledge 
 
 which lead me reasonably to conclude that a crime has 
 
 been, or is about to be, conunitted, it is my duty at once 
 
 to give information to the police. " For the sake of 
 
 public justice, charges and communications which would 
 
 otherAvise be slanderous, are protected if lomX fide made 
 
 in the prosecution of an inquiry into a suspected crime." 
 
 {Per Coleridge, J., in Padmore v. Latvrence, 11 A. & E. 
 
 382. See Johnson v. Bvans, 3 Esp. 32.) But such 
 
 charges must be made in the honest desii-e to promote 
 
 the ends of justice, and not "v\dth any spiteful or malicious 
 
 feeling against the person accused, nor with the pui-pose 
 
 of obtaining any indirect advantage to the accuser. "Noy 
 
 should serious accusations be made recklessly or wantonly ; 
 
 they must always be warranted by some circumstances 
 
 reasonably arousing suspicion. And they should not be 
 
 made before more persons, nor in stronger language, 
 
 than necessary. 
 
 Illustrations. 
 
 Meiiselsent his servant, the plaintiff, to the defendant's shop on business ; 
 while there, the plaintiff had occasion to go into an inner room. Shortly 
 after he left, a box was missed from that inner room. No one else had been 
 in the room except the plaintiff. The defendant thereupon went round to 
 Mr. Mensel's, and calling him aside into a private room, told him what had 
 happened, adding that the plaintiff must have taken the box. Later on, 
 the plaintiff" came to the defendant's house, and the defendant repeated the 
 accusation to him ; but, an English girl being present, defendant was 
 careful to speak in German. Both communications were held pri\'ileged, if 
 made without actual malice and in the bond fide belief of their truth. 
 
 Amann v. Damm, 8 C. B. N. S. 597 ; 29 L. .T. C. P. 1313 ; T Jur. 
 N. S. 47 ; 8 W. E. 470.
 
 CHARGE OF FELONY. 221 
 
 Defendant accused the plaintiff, in the presence of a third person, of 
 stealing his wife's brooch ; pUxintiff wished to be searched ; defendant 
 repeated the accusation to two women, who searched the plaintiff and found 
 nothing. Subsequently 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 hond 
 fide ; but that all the circumstances should have been left to the jury who 
 should determine whether or no the charge was made recklessly and un- 
 warrantably, and repeated before more persons than necessary. 
 
 Padmore v. Lawrence, 11 A. & E. 380 ; 4 Jur. 458 ; 3 P. & D. 
 209. 
 
 Fowler and Wife v. Homer, 3 Camp. 294. 
 Plaintiff assaulted the defendant on the highway ; defendant, meeting a 
 constable, requested him to take charge of the plaintiff, and the constai)le 
 refusing to arrest the plaintiff unless the defendant would charge him with 
 felony, the defendant did so ; held, on demurrer to the defendant's plea 
 setting up these circumstances, that they did not render the charge of 
 felony a privileged piiblication. 
 
 Smith V. HodgesJcins, Cro. Car. 276. 
 Plaintiff was defendant's shopman in Plymouth till Xov. 5th, 1834, 
 when he left and went to London, receiving from the plaintiff a good 
 character for steadiness, honesty and industry. Early in December defen- 
 dant found one of his female servants in possession of some of his goods. 
 When charged with stealing them, she said that the plaintiff gave them to 
 her. Thereupon the defendant, though he knew the girl was of bad 
 character, went to the plaintiff's relations in Plymouth and charged him 
 with felony, and eventually induced them to give him fifty pounds to say 
 no more about the matter. Held that the charge of felony was not made 
 hond fide, with a just intention to promote investigation or prosecution, but 
 with a view to a compromise, and was altogether unprivileged ; and that 
 no question as to malice in fact should have been left to the jury. 
 
 Hoover v. Truscott, 2 Bing. N. C. 457 ; 2 Scott, 672. 
 
 So, too, it is the duty of all who witness any miscon- 
 duct on the part of a magistrate or any public officer to 
 bring such misconduct to the notice of those whose duty 
 it is to inquire into and punish it ; and, therefore, all 
 petitions and memorials complaining of such misconduct, 
 if prepared bond fide and forwarded to the proper autho- 
 rities, are privileged. And it is not necessary that the 
 informant or memorialist should be in any way person- 
 ally aggrieved or injured: for all i^ersons have an interest 
 in the pure administration of justice and the efficiency of
 
 222 QUALIFIED PRIVILEGE. 
 
 our public offices iu all departments of the State. So 
 with ecclesiastical matters ; all good churelimen are con- 
 cerned to prevent any scandal attaching to the Church. 
 If, however, the informant be the person immediately 
 affected by the misconduct complained of, he can claim 
 privilege also on the ground that he is acting in self- 
 defence. (See the next class of cases, p. 225.) Every 
 communication is privileged which is made " lona fide 
 with a view to obtain redress for some injiuy received, 
 or to prevent or punish some public abuse. . . . This 
 privilege, hoAvever, must not be abused; for if such a 
 communication be made maliciously and without pro- 
 bable cause, the pretence under which it is made, instead 
 of furnishing a defence, will aggravate the case of the 
 defendant." {Per Best, J., in Fairman v. Ives., 5 B. & 
 Aid. 647, 8.) And a defendant Avill be taken to have 
 acted maliciously, if he eagerly seizes on some slight and 
 frivolous matter, and without any inquiry into the 
 merits, "without even satisfying himself that the account 
 of the matter that has reached him is correct, hastily 
 concludes that a great public scandal has been brought 
 to light Avhich calls for the immediate intervention of the 
 CroAvn. 
 
 Illustrations. 
 
 A memorial to the Home Secretary or to the Lord Chancellor, complain- 
 ing of misconduct on the part of a county magistrate and praying for his 
 removal from the commission of the peace, is privileged. 
 
 Harrison v. Bush, 5 E. & B. 344 ; 25 L. J. Q. B. 25, 99 ; 1 Jar. 
 
 N. S. 846 ; 2 Jur. N. S. 90. 
 
 So is a petition to the House of Commons charging the plaintiff with 
 
 oppression and extortion in his office of Vicar-General to the Bishop of 
 
 Lincoln, although the petition was printed, and copies distributed amongst 
 
 the members. 
 
 Lake v. King, 1 Lev. 240 ; 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58. 
 
 The defendant deemed it his duty as a churchman to write to the 
 
 Bishop of London Informing him that a report was current in the parish 
 
 of Bethnal Green that a stand-up fight had occurred in the schoolroom 
 
 of St. James the Great between the plaintiff, the incumbent, and the
 
 CHARGES AGAINST PUBLIC OFFICIALS. 223 
 
 schoolmaster, during school hours. The letter was held privileged under 
 the Church Discipline Act, 3 & 4 Vict. c. 86, s. 3 ; although the defen- 
 dant did not live in the district of which the plaintiff was incumbent 
 but in an adjoining district of the same parish. 
 
 James v. Boston, 2 C. & K. 4. 
 A letter wi-itteu to the Postmaster-General, or to the Secretary to the 
 General Post-Office, complaining of misconduct in a postmaster, is not a 
 libel, if it was written as a bond fide complaint, to obtain redress for a 
 grievance that the party really believed he had suffered ; and particular 
 exj^ressions are not to be too strictly scrutinized, if the intention of the 
 defendant was good. 
 
 Woodward v. Lander, 6 C. & P. 548. 
 
 Blake v. Pilfold, 1 Moo. & Rob. 198. 
 
 But in seeking redress, the defendant must be careful 
 to apply to some person who hjis jurisdiction to enter- 
 tain the complaint, or power to redress the grievance. 
 Statements made to some stranger who has nothing to 
 do with the matter cannot be privileged. But still if 
 the defendant applies to the VTong person, through some 
 natural and honest mistake as to the respective functions 
 of various state officials, such slight and unintentional 
 error will not take the case out of the privilege. [Scm^ll 
 V. Dixon, 4 F. & r. 250.) If however he recklessly 
 makes statements to some one whom he ought to have 
 known was altogether unconcerned with the matter, the 
 privilege is lost. The person whose aid is invoked must 
 have some jurisdiction, direct or indirect, to redi-ess 
 the grievance or some duty or interest in connection 
 therewith. 
 
 So too where the informant is himself the person 
 aggrieved, he should be very careful not to be led away 
 by his just indignation into misstating facts, or em- 
 ploying language which is clearly too violent for the 
 occasion. 
 
 Illustrations. 
 
 " A petition to the king upon matters in which the Crown cannot 
 directly interfere," is privileged. 
 
 Per Best, J., 5 B. & Aid. G48.
 
 224 QUALIFIED PRIVILEGE. 
 
 An elector of Frome petitioned the Home Secretary, stating that the 
 plaintiff, a magistrate of the borough, had made speeches inciting to a 
 breach of the peace, and praying an inijuiry and that the Home Secretary 
 should advise Her Majesty to remove the plaintiff' from the commission of 
 the peace,— such petition was held to be privileged, although it should 
 more properly have been addressed to the Lord Chancellor. 
 
 Harrison v. Bush, 5 E. & B. 344 ; 25 L. J. Q. B. 25, 99 ; 1 Jur. 
 N. S. 846 ; 2 Jur. N. S. 90. 
 
 Scarll v. Dixon, 4 F. & F. 250, ante, p. 211. 
 The plaintiff was about to be sworn in as a paid constalde, by the justices, 
 when the defendant, a parishioner, made a statement against the plaintift''s 
 character in the hearing of several by-standers. Held that even if such 
 statement ought rather to have been made to the vestry, who drew up the 
 list of constables whom the justices were to swear in, still it was privileged, 
 if made bond fide in furtherance of the ends of justice. 
 
 Kershaw v. Bailey, 1 Ex. 743 ; 17 L. J. Ex. 129. 
 A letter to the Secretary at War, with the intent to prevail on him to 
 exert his authority to compel the plaintiff' (an officer in the army) to pay a 
 debt due from him to defendant, was held pri^^leged, although the Secre- 
 tary at "War had no direct power or authority to order the plaintiff' to pay 
 his debt. " It was an application," says Best, J., " for the redress of a 
 grievance, made to one of the king's ministers, who, as the defendant 
 honestly thought, had authority to afford him redress." 
 
 Fairman v. Ives, 5 B. & Aid. 642 ; 1 Chit. 85 ; ID. & R. 252. 
 But where the defendant wi'ote a letter to the Home Secretary com- 
 plaining of the conduct of the plaintiff", a solicitor, as clerk to the borough 
 magistrates, this was held not to be privileged, because Sir Jamt-s Graham 
 had no power or jurisdiction whatever over the plaintiff". There was 
 moreover evidence of malice. 
 
 Blagg v. Sfurt, 10 Q. B. 899 ; 16 L. J. Q. B. 39 ; 8 L. T. (Old 
 S.), 135 ; 11 Jur. 101. 
 Tlie plaintiff was a teacher in a district school ; the inhabitants of the 
 district prepared a memorial charging the plaintiff with drunkenness and 
 immorality, which they sent to the local superintendent of Schools. It 
 oufi-ht strictly to have been sent to the trustees of that particular school 
 in the first instance, and such trustees would then, if they thought fit, 
 in due course forward it to the local superintendent for liiin to take 
 action upon it. Held that the publication was still primd facie privi- 
 leged, although by a mistake easily made, it had been sent to the wrong 
 quarter in the first instance. 
 
 Mclntijre v. McBean, 13 Up. Canada Q. B. Rep. 534.
 
 STATEMENTS IN SELF-DEFENCE. 225 
 
 (B.) Communications made in self-defence. 
 
 (iv.) Statements neccssaru to protect defendants private 
 interests. 
 
 The duty which compels the defendant to make the 
 communication may in special circumstances be a duty 
 Avliich he owes to himself, or which a due regard to his 
 own interest renders necessary. But in such cases it 
 must clearly appear not only that some such communica- 
 tion was necessary, but also that the defendant was com- 
 pelled to employ the libellous words complained of. If 
 he could have done all that his duty or interest de- 
 manded without libelling or slandering the j'tlaintiff, then 
 the words were not uttered in the due performance of 
 any duty and are therefore not privileged. Thus, it is 
 very seldom necessary in self-defence to impute evil 
 motives to others. Above all, the defendant should 
 never charge his adversary with fraud, unless prepared 
 with the most conclusive evidence ; for once a charge of 
 fraud is made, it must be proved to the letter. [Prior 
 cV another v. Wilson, 1 C. B. N". S. 95.) 
 
 So too in cases where some such conmiunication is 
 necessary and proper in the protection of the defendant's 
 interests, the privilege may be lost if the extent of its 
 publication be excessive. I am not entitled to ^Tite to 
 the Times because some one has cast a slur on me at a 
 private meeting of the board of guardians ; in fact by so 
 doing I take the surest method of disseminating the 
 charge against myself. So with an advertisement 
 inserted in a newspaper, defamatory of the plaintiff; 
 if such advertisement be necessary to protect the de- 
 fendant's interest, or if advertising was the only way of 
 effecting the defendant's object, and such object is a 
 lawful one, then the circumstances excuse the extensive
 
 226 QUALIFIED PRIVILEGE. 
 
 jDiiblication. But if it Avas not necessary to advertise at 
 all, or if the defendant's object could have been equally 
 well effected by an advertisement v^liich did not contain 
 the words defamatory of tbe plaintiff, tben the extent 
 given to the announcement is evidence af malice to go to 
 the jury ; [Broimi v. Croome^ 2 Stark. 297 ; and Lcnj a'. 
 Lcmson^ 4 A. & E. 795, overruling, or at least explain- 
 ing Delamj v. Jones, 4 Esp. 191. And see StocJcley \. 
 Clement, 4 Bing. 162 ; 12 Moore, 376, and R. v. Enes 
 (1732), Andr. 229 ; Bacon's Abr. Libel A. (2), p. 452.) 
 
 Illustrations. 
 
 The jilaintiff, a trader, employed an auctioneer to sell off his goods, 
 and otherwise conducted himself in such a way that his creditors reaton- 
 aljly concluded that he had committed an act of bankruptcy. One of 
 them, the defendant, thereupon sent the auctioneer a notice not to pay 
 over the proceeds of the sale to the plaintiff, "he having committed an 
 act of bankruptcy." Held by the majority of the Court of C. P. that 
 this notice was privileged, as being made in the honest defence of defen- 
 dant's own interests. 
 
 Blackham v. Fugh, 2 C. B. Gil ; 15 L. J. C. P. 290. 
 So where an agent in temperate language claims a right for his prin- 
 cipal, or a solicitor for his client. 
 
 Hargrave v. Le Breton, Burr. 2422. 
 
 Steivard v. Young, L. E. 5 C. P. 122 ; 39 L. J. C. P. 85 ; 18 
 W. E. 492 ; 22 L. T. 168. 
 The defendant had dismissed the plaintiff from his service on suspicion 
 of theft, and, ripon the plaintiff coming to his counting-house for his 
 wages, called in two other of his servants, and addressing them in the 
 presence of the plaintiff, said — " I have dismissed that man for robbing 
 me : do not speak to him any more, in piiblic or in private, or I sliall 
 think you as bad as him." — Held a privileged communication, on the 
 ground that it was the duty, and also the interest, of the defendant to 
 pre\ent his servants from associating with such a person. 
 
 Somerville v. Hawkins, 10 C. B. 583 ; 20 L. J. C. P. 131 ; 16 
 
 L. T. (Old S.) 283 ; 5 Jur. 450. 
 And see Manby v. Witt ) 18 C. B. 544 ; 25 L. J. C. P. 294 ; 
 Eastmead v. JVitt \ 2 Jur. N. S. 1004. 
 The occupier of a house may complain to the landlord or his agent of 
 the workmen he has sent to repair the house. 
 
 Toogood V. Sj^yring, 1 C. M. & E. 181 ; 4 Tyrw. 582. 
 Kine V. Sewell, 3 M. & W. 297. 
 A customer may call and complain to a tradesman of the goods he 
 
 I
 
 SELF-DEFENCE. 227 
 
 supplies and the manner in which he conducts his business : hut he 
 should be careful to make the complaint in the hearing of as few persons 
 as possible, and in moderate language. • • 
 
 OiUij V. Ld. Geo. Paulett, 4 F. & F. 1009. 
 
 Cris2) V. Gill, 29 L. T. (Old S.) 82. 
 Defendant claimed rent of plaintiff ; plaintiff's agent told defendant that 
 plaintiff denied his liability ; defendant thereupon wrote to the agent, 
 alleging facts in suppoi't of his claim, and adding, " this attempt to defraud 
 me of the produce of the land is as mean as it is dishonest." Held that 
 the publication, in these terms, was not privileged, for one can claim a debt 
 without imputing fraud, and that the judge was justified in directing the 
 jury that it was a libel. 
 
 Tuson V. Evans, 12 A. & E. 733. 
 Lord Denman in delivering the judgment of the Court, said, "Some 
 remark from the defendant on the refusal to pay the rent was perfectly 
 justifiable, because his entire silence might have been construed into an 
 acquiescence in that refusal, and so might have prejudiced his case upon any 
 future claim ; and the defendant would, therefore, have been privileged in 
 denying the truth of the plaintiff's statement. But, upon consideration, 
 we are of opinion that the learned Judge was quite right in considering 
 the language actually used as not justified by the occasion. Anyone, in the 
 transaction of business with another, has a right to use language bond fide, 
 which is relevant to that business, and wdiich a due regard to his own 
 interest makes necessary, even if it should directly, or by its consequences, 
 be injurious or painful to another ; and this is the principle on which 
 privileged communication rests ; l;>ut defamatory comments on the motives 
 or conduct of the party with whom he is dealing do not fall within that- 
 rule. It was enough for the defendant's interest, in the present case, to 
 deny the truth of the plaintifl''s assertion : to characterise that assertion 
 as an attempt to defraud, and as mean and dishonest, was wholly un- 
 necessary." 
 
 And see Eolertson v. McDouijall, 4 Bing. 670 ; 1 M. & P. 692 ; 
 3 C. & P. 259. 
 
 Jacob v. Laurence, 4 L. E. Ir. 579 ; 14 Cox, C. C. 321. 
 The defendant owed the plaintiff £6 10s. ; the plaintiff told his attorney 
 to write and demand the money, and threaten proceedings. The defendant 
 in reply wrote to the attorney denouncing the proceeding as a "miserable 
 attempt at imposition," and ]iroceeded to discuss the plaintifl''s " transactions 
 in business matters generally," asserting that "his disgusting tricks are 
 looked upon by all respectable men with scorn." Williams, J., ruled 
 that the letter was not privileged and the Court of C. P. upheld this 
 ruling. Damages one farthing ; the jury expressly found that there was 
 no malice ; but the judge certified for costs on the express ground that 
 there was. 
 
 Eimtley v. mird, 1 F. & F. 552 ; 6 C. B. N. S. 514 ; 6 Jur. 
 N. S. 18. 
 Tlie defendant was Clerk of the Peace of the County of Kent, and 
 as such it was his duty to have the register of county voters ])rinted 
 
 ci 2
 
 228 (QUALIFIED PRIVILEGE. 
 
 the expense of such printing being allowed by the justices in Quarter 
 Sessions. In 1854 the defendant employed a new printer, who charged 
 less for tlie job ; the defendant wrote a letter to the Finance Committee 
 of the justices stating his reasons for the change, and added that to con- 
 tinue to pay the charges made by his former printer, the plaintiff, would 
 be " to submit to what appears to have been an attempt to extort money 
 by misrepresentation." Held that the rest of the letter was privileged, 
 as it was proper and necessary for the defendant to explain to the 
 Finance Committee what he had done ; but that the words imputing 
 improper motives to the plaintiff were uncalled for and malicious. 
 Damages £50. 
 
 Coole V. Wildes, o E. & B. 328 ; 24 L. J. Q. B. 367 ; 1 Jur. 
 N. S. 610 ; 3 C. L. R. 1090. 
 Defendant having lost certain bills of exchange, published a handbill, 
 offei'ing a reward for their recovery, and adding that he believed they 
 had been embezzled 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 defendant's object, and were a gratu.itous libel 
 on the plaintiff. Damages £200. 
 
 Finden v. Westlake, Moo. & ^lalk. 461. 
 
 See Mulligan v. Cole, L. R. 10 Q. B. 549 ; 44 L. J. Q. B. 153 ; 
 
 33 L. T. 12. 
 Ccqntal and Counties Banh v. Henty and Sons, (in C. P. D.), 28 
 W. R. 490 ; 42 L. T. 314 ; (C. A.) 5 C. P. D. 514 ; 49 L. J. 
 C. P. 830 ; 28 W. R. 851. 
 Delivery to a third person for service on the plaintiff of a statutory 
 notice under the Insolvent Act of 1869 (Nova Scotia) is primd facie 
 privileged, being in the nature of a legal proceeding. 
 
 Bank of British North America v. Strong, 1 App. Cas. 307 ; 34 
 L. T. 627. 
 
 (v.) Statements provoked hy a iirevious attack hy 
 plaintiff on defendant. 
 
 Every man has a riglit to defend liis character against 
 false aspersion. It may be said that this is one of the 
 duties which he owes to himself and to his famil3\ 
 Tlierefore commimications made in fair self-defence are 
 privileged. If I am attacked in a newsj^aper, I may 
 write to that paper to rebut the charges, and I may at 
 the same time retort upon my assailant, where such 
 retort is a necessary part of my defence or fairly arises
 
 RETORTS. 229 
 
 out of the charges he has made against me. i^G' Donoglme 
 V. Husse/j, Ir. E. 5 C. L. 124.) A man who himself 
 commenced a newspaper war camiot subsequently come 
 to the Court as a plaintiff, to complain that he has had 
 the worst of the fray. But even in rebutting an accu- 
 sation, the defendant may not of course state what he 
 knows at the time to be untrue, or intrude umiecessarily 
 into the j)riYate life or character of his assailant. The 
 privilege extends only to such retorts as the plaintiff has 
 himself provoked, ^ee post, p. 300. 
 
 Illustrations. 
 
 At a vestry meeting called to elect fresh overseers, the plaintiff accused 
 the defendant, one of the outgoing overseers, of neglecting tlie interests of 
 tlie vestry, and not collecting the rates ; the defendant retorted that the 
 plaintiff had been bribed by a railway company. Held that the retoit was 
 a mere tu quoqw, in no way connected witli the charge made agamst him 
 by the plaintiff, and was tlierefore not privileged ; for it was not made in 
 self-defence. 
 
 Senior v. MeeJhnuI, 4 Jur. N. S. 1039. 
 
 And see Huntley v. JFcml, 6 C. B. N. S. 514 ; G Jur. N. S. 
 18 ; 1 F. & F. 552. 
 
 Murphy v. Halpin, Ir. R. 8 C. L. 127. 
 The plaintiff was a policy-holder in an insurance company, and published 
 a pamphlet accusing the directors of that company of fiaud. The directors 
 l^ublished a pamphlet in reply, declaring the charges contained in the 
 ]ilaintiff's pamphlet to l>e false and calumnious, and also asserting that in a 
 suit he had instituted he had sworn in support of those charges, in opposi- 
 tion to his own handwriting. Cockburn, C.J., lield the directors' pamphlet 
 prima facie privileged ; and directed the jury in the following words : — 
 " If you are of opinion that it was published bond fide for the purpose of 
 the defence of the company, and in order to prevent these charges from 
 operating to their prejudice, aud with a view to vindicate the character of 
 the directors, and not with a view to injure or lower the character of the 
 plaintiff — if you are of that opinion and think that the publication did not 
 go beyond the occasion, then you ought to find for the defendants on the 
 general issue." Verdict for the defendants. 
 
 KKnig v. Eitchie, 3 F. & F. 413. 
 
 R. V. Veley, 4 F. e^ F. 1117. 
 The defendant was a candidate for the County of "Waterford. Shortly 
 before the election the Kilkenny Tenant Farmers' Association published in 
 Freeman's Journal an address to the constituency describing the defendant 
 as " a tme type of a bad Irish landlord — the scourge of the country," and 
 charging him with various acts of tyranny and oppression towards his
 
 230 QUALIFIED PRIVILEGE. 
 
 tenants, and especially towards the plaintiff, one of liis former tenants. The 
 defendant, thereupon, published, also in Freeman's Journal, an address to 
 the constituency, answering the charges thus brought against him, and in 
 so doing, necessarily libelled the plaintiff. HpJd that such an addi'ess, 
 being an answer to an attack, was lyrinnd facie privileged. 
 
 Divyer v, Esmonde, 2 L. R. (Ir.) 243, reversing the decision of the 
 
 Court below ; Ir. R. 11 C. L. 542. 
 See also OWonoghiie v. Hussey, Ir. R. 5 C. L. 124. 
 The plaintiff, a barrister, attacked the Bishop of Sodor and Man before 
 the House of Keys in an argument against a private bill, imputing to the 
 bishop improper motives in his exercise of church patronage. The bishop 
 wrote a charge to his clergy refuting these insinuations, and sent it to the 
 newspapers for publication. Held that under the circumstances the bishop 
 was justified in sending the charge to the newspaper, for an attack made in 
 public required a public answer. 
 
 Langhton v. Bishojy of Sodor and Man, L. R. 4 P. C. 495 ; 42 L. 
 J." P. C. 11 ; 9 Moore, P. C. C. N. S. 318 ; 21 W. R. 204 ; 
 28 L. T. 377. 
 See Hihbs v. Wilkinson, 1 F. & F. 608. 
 
 Hcmmings v. Gasson, E. B. & E. 346 ; 27 L. J. Q. B. 252 ; 4 
 Jur. N. S. 834. 
 Such previous attacks might also be matter for a counterclaim. 
 Quin V. Hession, 40 L. T. 70 ; 4 L. R. (Ir.) 35. 
 
 Statements invited hij the jAaintiff. 
 
 Closely akin to retorts proYokcd by the plaintiff's own 
 attack, are communications procured by the j)laintiff's 
 own contrivance. If the only publication that can be 
 proved is one made by the defendant to the plaintiff or 
 to some agent of the plaintiff, and it is clear that such 
 publication was procured matd fide with a view to the 
 action, and not in the ordinary course of business or of 
 social intercoiu'se, then such a publication will be held 
 privileged ; for the plaintiff' brought it on himself. But 
 this rule only applies to cases in which there had been 
 no previous publication by the defendant of the same 
 words or libel. {^Duke of BriinsivicJc v. Harmer^ 14 Q. B. 
 185 ; 19 L. J. Q. B. 20 ; 14 Jur. 110 ; 3 C. & K 10.) 
 
 It makes a great difference if the report originated with the 
 defendant, and what he has himself previously said produces the
 
 STATEMENTS INVITED BY THE PLAINTIFF. 231 
 
 plaintiff's inquiry. (Per Lord Lyndhurst in Smith v. Matheivs, 
 1 Moo. & Rob. 151.) If in answer to such an inquiry the de- 
 fendant does no more than acknowledge having uttered the words, 
 no action can be brought for the acknowledgment : the party 
 injured must sue for the words jDreviously spoken, and use the 
 acknowledgment as proof that those words had been spoken. 
 But if besides saying "Yes" to the question asked, he repeats 
 the words in the presence of a third person, asserting his belief 
 in the accusation and that he can prove it ; such a statement is 
 slanderous and is not privileged, although elicited by the 
 plaintiff's question. See Griffiths v. Leiuis, 7 Q. B. 61 ; 14 
 L. J. Q. B. 199, in which case Lord Denman remarks : "Injuri- 
 ous words having been uttered by the defendant respecting the 
 plaintiff, the plaintiff was bound to make inquiry on the 
 subject. When she did so, instead of any satisfaction from the 
 defendant, she gets only a repetition of the slander. The real 
 question comes to this, does the utterance of slander once give 
 the privilege to the slanderer to utter it again whenever he is 
 asked for an explanation ? It is the constant course, when a ' 
 person hears that he has been calumniated, to go, with a 
 witness, to the party who, he is informed, has uttered the 
 injurious words, and say, ' Do you mean in the presence of 
 witnesses to persist in the charge you have made ? ' And it is 
 never wise to bring an action for slander unless some such 
 course has been taken. But it never has been supposed, that 
 the persisting in and repeating the calumny, in answer to such 
 a question, which is an aggravation of the slander, can be a 
 privileged communication ; and in none of the cases cited has 
 it ever been so decided." And see Richards v. Richards, 2 
 Moo. & Rob. 557; Force v. Warren, 15 C. B. (N.S.) 80G. If, 
 however, the second occasion on which the words were spoken 
 is clearly privileged and justifiable, the mere fact that defendant 
 had previously spoken them will not of itself destroy the 
 privilege ; the plaintiff must rely on the first utterance : that 
 may be privileged as well, Kine v. Seivell, 3 M, & W. 297. 
 This rule is sometimes cited as an instance of the maxim 
 " Volenti nonfit injuria" and is then not classed as a ground 
 of privilege, but would rather be stated thus : — That if the only 
 publication proved at the trial be one brought about by the 
 plaintiff's own contrivance, this is no sufficient evidence of
 
 232 QUALIFIED PRIVILEGE. 
 
 publication, and the plaintiff must be nonsuited. Such was 
 the ruling of Lord Ellenborough in Smitli v. Wood, 3 Camp. 
 323 ; but this is inconsistent with Duke of Brunsiuich v. 
 Harmer, 14 Q. B. 185 ; and in Warr v. Jolly, G Car. & P. 497, 
 it was expressly held that a communication purposely procured 
 by the plain tiiT ivas privileged. 
 
 Illustrations. 
 
 " If a servant, knowing the character which his master will give of him 
 procures a letter to he written, not with a fair view of inquiring the cha- 
 racter, but to procure an answer upon which to groinid an action for a libel, 
 no action can be maintained.'" Per Lord Alvanley in 
 
 King v. Waring et ux., 5 Esp. 15. 
 The defendant discharged the plaintiff, his servant, and when applied to 
 by another gentleman, gave him a bad character. The plaintiff's brother- 
 in-law, Collier, thereupon repeatedly called on the defendant to inquire 
 why he had dismissed the plaintiff : and at last the defendant wrote to 
 Collier stating his reasons specificall}'. The plaintiff sued out a writ the 
 same day the letter was written. Held, by Lord Mansfield, C.J., and 
 Butler, J., that no action lay on such letter, as the defendant was evidently 
 entrapped into writing it. 
 
 JFeathersto)i v. Haivkins, 1 T. E. 110. 
 
 See also Taylor v. Haiclcins, 16 Q. B. 308 ; 20 L. J. Q. B. 313. 
 
 R. V. Hart, 1 "\Vm. Black. 386 ; and the remarks of Lord Alvan- 
 ley, C.J., in 
 
 Rogers v. Clifton, 3 B. & P. 592. 
 A ■^^•itness (whom we must presume to have been an agent of the plain- 
 tiff's, though it is not so stated in the report) heard that the defendant had 
 a copy of a libellous print, went to defendant's house, and asked to see it ; 
 the defendant thereupon 2)roduced it, and pointed out the figure of the 
 plaintiff and the other persons caricatured. Lord Ellenborough nonsuited 
 the plaintiff, as there was no other publication proved. 
 
 Smith v. JFood, 3 Camp. 323. 
 The plaintiff had been in partnership with his brother-in-law, Pinhorn, 
 as a linendraper at Southampton ; but gave up business and became a 
 dissenting minister. Rumours reached his congregation that he had cheated 
 his brother-in-law in the settlement of the accounts on his retirement from 
 the partnership). The plaintiff challenged inquiry and invited the malcon- 
 tents in the congregation to appoint some one to thoroughly sift the matter. 
 The malcontents appointed the defendant, and the plaintiff appointed the 
 Rev. Robert Ainslie. Held, that all communications between the defendant 
 and Ainslie relative to the matter Avere privileged, as being made with the 
 sanction and concurrence of the plaintiff. 
 
 Hopwood V. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 
 
 And see Bayer v. Begg, 15 Ir. C. L. R. 458.
 
 STATEMENTS INVITED BY THE PLAINTIFF. 233 
 
 In answer to plaintiff 's inquiry as to a rumour against himself, defendant 
 told him, in the presence of a third party, what some one had said to his 
 (defendant's) wife. There was no proof that the defendant had ever uttered 
 a word on the subject till he was applied to by the plaintiff. Held that the 
 answer was privileged. 
 
 Warr v. Jolly, 6 Car. & P. 497, as explained by Lord Denman in 
 
 Griffiths V. Levels, 7 Q. B. 67 ; 14 L. J. Q. B. 199 ; 9 Jur. 370. 
 
 And see Richards v. Richards, 2 Moo. & Eob. 557. 
 The plaintiff was a builder and contracted to build certain schoolrooms at 
 Bermondsey. The defendant started a false report that in the building the 
 plaintiff had ^^sed inferior timber ; the report reached the plaintiff, who 
 thereupon suspended the work and demanded an inquiry ; and the com- 
 mittee of the school employed defendant to survey the work and report. 
 He reported falsely that inferior timber was used. Lord Lyndhurst 
 directed the jury that if they believed that the reports which produced the 
 inquiry originated with the defendant, the defendant's report to the com- 
 mittee was not jirivileged. Verdict for the plaintiff. 
 
 Smith V. Mathev-s, 2 Moo. & Eob. 151. 
 Barton, a friend of the defendant, employed a builder, the plaintiff's 
 master, to build a house for him : the defendant informed Barton that the 
 plaintiff' Avhile at work on his house had stolen some quarterings. Barton 
 complained to the master builder, who came down to the defendant's to 
 inquire into the circumstances. A repetition of the charge made then to 
 the plaintiff 's master without malice was held privileged, and as the plaintiff' 
 had not called Barton to prove the original remark, the jury found for the 
 defendant, and a new trial was refused. 
 
 Kine V. Sewdl, 3 M. & W. 297. 
 But note that the statement made to Barton would, if proved, have been 
 privileged also, although voluntary, as he was the owner of the property 
 alleged to have been stolen.
 
 234 QUALIFIED PRIVILEGE. 
 
 II. WlIEEE THE DEFEISDANT HAS AN INTEREST IX THE 
 SUBJECT-MATTER OF THE CO]\rMrNICATION, AND THE 
 PERSON TO WHOM THE COMMUNICATION IS MADE, 
 HAS A CORRESPONDING INTEREST. 
 
 Ill such a case every commimication honestly made in 
 order to protect such common interest is privileged by 
 reason of the occasion. 
 
 Such common interest is generally a pecuniari) one ; 
 as that of two customers of the same bank, two directors 
 of the same company, two creditors of the same debtor. 
 But it may also be p'ofessional^ as in the case of two 
 officers in the same corps, or masters in the same school, 
 anxious to preserve the dignity and reputation of the 
 body to which they both belong. In short, it may be 
 any interest arising from the joint exercise of any legal 
 right or privilege, or fi'om the joint performance of any 
 duty imposed or recognised by the law. Thus two 
 executors of the same aWII, two trustees of the same 
 settlement, liaA^e a common interest, though not a pecu- 
 niary one, in the management of the trust estate. So 
 the ratepayers of a parish have a common interest in the 
 selection of fit and projier constables to serve in the 
 parish, their salary being paid out of the rates. So 
 relations by blood or marriage have a common interest 
 in theii' family concerns. But beyond this there is no 
 privilege. The " common interest " must be one which 
 the law recognises and appreciates. No privilege 
 attaches to gossip, however kiteresting it may be to both 
 speaker and hearers. The law never sanctions mere 
 VTilgar ciu'iosity or officious intermeddling ia the 
 concerns of others. To be within the privilege, the 
 statement must be such as the occasion warrants and 
 must be made hand fide to protect the private interests
 
 COMMON INTEREST. 235 
 
 both of the speaker and of the person addressed. If in 
 fact the defendant had no other interest in the matter 
 beyond that which any other edncated person would 
 naturally feel, interference on his part would be officious 
 and unprivileged. {Botterill cV another v. Whijtehead^ 41 
 L. T. 588.) 
 
 Illustrations. 
 
 The defendant and Messrs. Wright and Co., his bankers, were both inte- 
 rested in a concern, the management of which the bankers had entrusted to 
 the phaintiff, their solicitor. A confidential letter written by the defendant 
 to Messrs. Wright and Co., charging the plaintiff with professional miscon- 
 duct in the management of such concern was hold privileged by Lord 
 Ellenl)orougli. 
 
 McBourjall v. Claridge, 1 Camp. 267. 
 A creditor of the plaintiff may comment on the plaintiff's mode of con- 
 ducting his business to the man who is surety to that creditor for the plain- 
 tiff's trade debts. 
 
 Dunman v. Bigg, 1 Camp. 269, n. 
 Where A. & B. have a joint interest in a matter, a letter, written by A. 
 to induce B. to become a party to a suit relating thereto, is privileged 
 though it may refer to the plaintiff in angry terms. 
 Shipley v. Todhunter, 7 C. & P. 680. 
 A creditor was appointed trustee in liquidation of the debtor's estate, the 
 debtor continuing to manage his former business for the benefit of the 
 estate. A letter written by the trustee to another creditor, commenting in 
 A'ery severe terms on the debtor's conduct, is privileged. 
 
 S2nll V. Maule, L. R. 4 Exch. 232 ; 38 L.' J. Ex. 138 ; 17 W. R. 
 805 ; 20 L. T. 675. 
 A person interested in the proceeds of a sale may give notice to the 
 auctioneer not to part Avith them to the plaintiff, who ordered the sale, on 
 the ground that he has committed an act of bankruptcy. 
 
 Blackham v. Pugh, 2 C. B. 611 ; 15 L. J. C. P. 290. 
 So the son-in-law of a lady has sufhcient interest in whom she marries to 
 justify him in warning her not to marry the plaintiff, if he honestly believes 
 him, however erroneously, to be of bad character. 
 
 Todd V. Hawkins, 8 C. & P. 88 ; 2 M. & Rob. 20. 
 So, too, a bishop's charge to his clergy h lorimd facie privileged, although 
 it contain calumniatory matter. 
 
 Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495 ; 42 
 L. J. P. C. 11 ; 21 W. R. 204 ; 28 L. T. 377 ; 9 Moore, P. C. C 
 N. S. 318. 
 So the reports of the directors and auditors of a comjiany printed and 
 circulated among the shareliolders are privileged. 
 
 Lawless v. Aiujlo-Egypliun Votlou Co., L. R. 4 Q. B. 262 ; 10 B. 
 & S. 226 ; 38 L. J. Q. B. 129 ; 17 W. R. 498. 
 A communication from a firm of brewers to the tenants of their public.
 
 236 ■ QUALIFIED PRIVILEGE. 
 
 houses, refusing to accept any longer in payment clieques dra"\vn on a parti- 
 cular bank is frima facie privileged. 
 
 Caintal and Counties Bank v. Henty and Sons (in C. P. D.) ; 28 
 W. R 490 ; 42 L. T. 314 ; (C. A.) 5 C. P. D. 514 ; 49 L. J. 
 C. P. 830 ; 28 W. R. 851. 
 Defendant was a life governor of a public school to which the plaintiff sup- 
 plied butchers' meat ; defendant told the steward of the school, whose duty 
 it was to examine the meat, that defendant had been known to sell bad 
 meat. Held a privileged communication. 
 
 Humphreys v. StiUwell, 2 F. & F. 590. 
 And see Cris2} v. Gill, 29 L. T. (Old S.) 82. 
 A Member of Parliament gave notice that he would ask in the House of 
 Commons why the plaintiff, a colonel in the army, had been dismissed ; 
 thereupon the defendant, the plaintiff's superior oflicer, who had been 
 instrumental in procuring his discharge, called on the Member, whom he 
 knew well, to explain the true facts of the case. Lord Campbell considered 
 the occasion i)rimd facie privileged ; but the jury found it Avas done mali- 
 ciously, and awarded the jdaintiff £200 damages. 
 
 Diclmn v. Earl of Wilton, 1 F. & F. 419. 
 A hand fide communication between a Member of Parliament and his con- 
 stituents on a matter of political or local interest is privileged ; such as a 
 report of any speech of his, circulated privately among his constituents for 
 their information. Per Lord Campbell, C.J., and Crompton, J., in 
 Davison v. Duncan, 7 E. & B. 233 ; 26 L. J. Q. B. 107. 
 And Cockburn, C.J., in 
 
 JFason v. Walter, L. R. 4 Q. B. 95 ; 8 B. & S. 730 ; 38 L. J. 
 Q. B. 42 ; 17 W. R. 169 ; 19 L. T. 416. 
 But it would be otherwise if a member of Parliament published his speech 
 to all the world with the malicious intention of injuring the plaintiff". 
 R. v. Lord Abingdon, 1 Esp. 226. 
 B. V. Creeveij, 1 M. & S. 273. 
 If a parish officer seek re-election, charges made against him at the 
 parish meeting for the nomination of officers as to his previous conduct in 
 the office, are privileged, if made bond fide. 
 George v. Goddard, 2 F. & F. 689. 
 Kershaw v. Bailey, 1 Ex. 743 ; 17 L. J. Ex. 129. 
 See Senior v. Medland, 4 Jur. N. S. 1039. 
 Pierce v. Ellis, 6 Ir. C. L. R. 55. 
 Bennett v. Barry, 8 L. T. 857. 
 Harle v. Catherall, 14 L. T. 801. 
 But as to a personal attack on the private character of a candidate at 
 parliamentary election, see 
 
 Duncombe v. Daniell, 8 C. & P. 222 ; 2 Jiu-. 32 ; 1 W. W. & H. 101. 
 Sir Thomas Charges v. Eoiie, 3 Lev. 30. 
 
 Hoiv V. Prin, Holt, 652 ; 7 Mod. 107 ; 2 Salk. 694 ; 2 Ld. Raym. 
 812 ; affirmed in the House of Lords, sub nomine Prinn v. 
 Howe, 1 Brown's Parly. Cas. 64. 
 Onslow V. Home, 3 Wils. 177 ; 2 W. Bl. 750. 
 Harwood v. Sir J. Astley, 1 N. R. 47.
 
 COMMON INTEREST. 237 
 
 A paiisli meeting was called to investigate the accounts of the parish 
 constable ; one ratepayer was unable to attend, so he wrote a letter to be 
 read to the meeting concerning the constable and his accounts. This letter 
 was held primi facie privileged. For had he attended the meeting and 
 made the same charge orally, such speech would have been privileged. 
 Spencer v. Amerton, 1 Moo. & Eob. 470. 
 
 Se\'eral fictitious orders for goods had been sent in the defendant's name 
 to a tradesman, who thereupon delivered the goods to the defendant. Tlie 
 defeuiiant returned the goods, and being shown tiie letters ordering them, 
 wrote to the tradesman that in his opinion the letter was in the plaintiff's 
 handwriting. Held that this expression of opinion was privileged, as both 
 defendant and the tradesman were interested in discovering the culprit. 
 
 Croft v. Stevens, 7 H. & N. 570 ; 31 L. J. Ex. 143 ; 10 W. R. 
 272 ; 5 L. T. 683. 
 
 The defendant had a dispute with the Newry Mineral Water Company, 
 which they agreed to refer to " some respectable printer who should be in- 
 different between the parties," as arbitrator. The manager of the company 
 nominated the plaintiff", a printer's commercial traveller. The defendant 
 declined to accept him as arbitrator, and when pressed for his reason, wrote 
 a letter to the manager stating that the plaintiff" had formerly been in the 
 defendant's employment, and had 1jeen dismissed for drunkenness. The 
 plaintiff", thereupon, brought an action on the letter as a libel concerning 
 him in the way of his trade. Held that the letter was privileged, as both 
 parties were interested in the selection of a proper arbitrator. 
 Hohbs V. Bryers, 2 L. R Ir. 496. 
 
 But a judge of the Bankruptcy Court and an opposing creditor have no 
 such common interest in the case of an insolvent debtor as to render privi- 
 leged a letter written hj the creditor to the judge previously to the hearing 
 of the case. Writing such a letter is indeed a contempt of Court. 
 Gould V. Hiilme, 3 C. & P. 625. 
 
 But where a large number of persons have an interest 
 more or less remote in the matter, defendant will not be 
 privileged in informing them all by circular or other- 
 wise, unless there was no other way of effecting his 
 object. Thus in the case of most societies there is a 
 council, or a managing committee, or a manager, or a 
 body of trustees ; and communications made confiden- 
 tially to them will be privileged which would not be 
 privileged, if addressed in the first instance to the whole 
 body of subscribers. " Such a communication as the 
 present (a charge against the medical officer of a Poor 
 Law Union) ought to be confined in the first instance to
 
 238 QUALIFIED PRIVILEGE. 
 
 those whoso duty it is to investigate the charges." 
 (Fcr Mellish, L. J., iu Furcell v. Voider, 2 C. P. D. at 
 p. 221.) 
 
 A communication can scarcely be called confidential 
 which is addressed to some two or three hundred people 
 at once. Thus the mere fact that I subscribe to a 
 charity does not entitle me to canvass the private cha- 
 racter, and discuss the private concerns, of the medical 
 man employed by the charity, and so cause his past life 
 to become a topic of general conversation in the town ; 
 although any representation made to the managing com- 
 mittee would be privileged ; and if absolutely necessary 
 to the success of the charity, I might after due notice 
 given to the medical man, appeal from the decision of 
 the committee to the general body of subscribers. [Martin 
 V. Strong^ 5 A. & E. 535, as explained in Kine v. Setvell, 
 3 M. & W. 297.) 
 
 Illustrations. 
 
 A letter written by a subscriber to a charity to the committee of manage- 
 ment of the charity concerning the conduct of their secretary in the manage- 
 ment of the funds of the charity is primd facie privileged. 
 Maitland v. Bramicell, 2 F. & F. 623. 
 See also Hartwell v. Vesey, 3 L. T. 275. 
 Any statement made by a director of a company to his fellow directors, 
 as to the conduct and character of their auditor, is privileged, though it 
 relates to his conduct with reference to another comj^any, of which he was 
 secretary and not auditor. 
 
 Harris v. Tliompson, 13 C. B. 333. 
 But it would seem that a similar statement, if made hj one private share- 
 holder in the company to another, would not be privileged. 
 
 Brooks V. Blanshard, 1 Cr. & Mees. 779 ; 3 Tyrw. 844. 
 Defendant, who was a sergeant in a volunteer corps, of which plaintiff 
 also was a member, represented to the committee by whom the general 
 business of the corps was conducted, that plaintiff was an unfit person to 
 be permitted to continue a member of the corps ; that he was the execu- 
 tioner of the French king, &c. Lord Ellenborough held the communica- 
 tion privileged. 
 
 Barhaud v. Hookham, 5 Esp. 109. 
 
 See Bell v. Parke, 10 Ir. C. L. R. 284 ; 11 Ir. C. L. R. 413. 
 But for one member of a charitable institution to send round to aU the sub-
 
 EXTENT OF COMMUNICATION. 239 
 
 scribera a circular calliug on them " to reject the unworthy claims of Miss 
 Hoare," and stating that " she squandered away the money which she did 
 obtain from the benevolent in printing circulars abusive of Commander 
 Dickson," the secretary of the institution, is libellous, and not privileged. 
 Hoare v. SikerlocJc (No. 1 ; 1848), 12 Q. B. G24 ; 17 L. J. Q. B, 
 306 ; 12 Jur. 695. 
 " There may be a thousand subscribers to a charity," observes Lord Denman 
 in Martin v. Strong, 5 Ad. & E. 538. " Such a claim of privilege is too large." 
 
 And a fortiori, if tlie words be spoken in the jDresence 
 of strangers wlioUy uninterested in the matter, the com- 
 munication loses all privilege. The defendant in all 
 these cases must be careful that the publication " does 
 not go beyond the occasion," that is, that his words 
 should be confined to those who are concerned to hear 
 them. Words of admonition or of confidential advice 
 should be given privately. It is true that the accidental 
 presence of some third person will not alone take the 
 case out of the privilege, if it was unavoidable or hap- 
 pened in the usual course of business affairs. But if 
 the defendant purposely contrives that a stranger should 
 be present, Avho has no right to be present, and who in 
 the natural course of things would not be present, all 
 privilege is lost. (Kersliaw v. Bailey, 1 Ex. 743 ; 17 
 L. J. Ex. 129 ; Scarll v. Dixon, 4 F. & F. 250.) 
 
 So too in making a communication which is only 
 privileged by reason of its being made to a person inter- 
 ested in the subject-matter thereof, the defendant must 
 be careful not to branch out iuto extraneous matters with 
 which such person is unconcerned. The privilege only 
 extends to that portion of the communication in respect 
 of which the parties have a common interest or duty. 
 
 The defendant must also be careful to avoid the use 
 of exaggerated exj^ressions ; for the privilege may be 
 lost by the use of violent language when it is clearly 
 uncalled for. {Fryer v. Kinnersley, 15 C. B. IN". S. 422 ; 
 33 L. J. C. P. 96'; 10 Jur. K S. 441 ; 12 W. E. 155;
 
 240 QUALIFIED PRIVILEGE. 
 
 9 L. T. 415 ; Senior y. Mcdland, 4 K & :N'. 843 ; 4 Jur. 
 K S. 1039.) 
 
 And especially in cases where a rumour reaches the 
 clefendant, of which he feels it his duty to inform others 
 who are equally interested with himself in its subject- 
 matter, he should be very careful to report it precisely 
 as he heard it, Avithout any addition or exaggeration. 
 {DmmageY. Prosser, 4 B. & Cr. 247 ; 6 Dowl. & E. 296.) 
 
 In short whenever the mode and extent of a privi- 
 leged publication are more injurious to the plaintiff than 
 necessary, this may be evidence of malice in the pub- 
 lisher. Though the words themselves would be privi- 
 leged if addressed only to the few individuals concerned, 
 yet the privilege may be lost if the defendant deliberately 
 chooses to publish them to the general public, or to any 
 one who had no corresponding interest in the communi- 
 cation. Confidential communications should not be 
 shouted across the street for all the world to hear. 
 [Wilson V. Collins, 5 C. & P. 373; Odd// v. Lord George 
 Faidet, 4 F. & F. 1009.) Defamatory remarks, if written 
 at all, should be sent in a private letter properly sealed 
 and fastened up : not written on a postcard, or sent by 
 telegram ; for two strangers at least read every telegram, 
 many more most postcards. (Williamson \. Freer, L. E. 
 9 C. P. 393 ; 43 L. J. C. P. 101 ; WUtfield v. .S'. E. R. 
 Co., E. B. & E. 115 ; Rohinson v. Jones, 4 L. E. Jr. 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 Avriter can efficiently effect his purpose 
 ancl discharge the duty which the law has cast upon 
 him. 8o with an advertisement inserted in a newspaper, 
 defamatory of the plaintiff; if such advertisement be 
 necessary to protect the defendant's interest, or if adver- 
 tising was the only way of effecting the defendant's
 
 UNNECESSARY PUBLICITY. 241 
 
 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 Avhich did not contain the words defama- 
 tory of the plaintiff, then the extent given to the an- 
 nouncement is evidence of malice to go to the jury. 
 [Brown v. Croome, 2 Stark, 297 ; and Lay v. Lawson^ 4 
 A. & E. 795, overruling Delanu v. Joncs^ 4 Esp. 191.) 
 To deliberately give any unnecessary publicity to state- 
 ments defamatory of another, raises at least a suspicion 
 of malice. 
 
 Illustvations . 
 
 Defendant made a speech at a public meeting called to petition Parlia- 
 ment, and subsequently handed a copy of what he had said to the reporters 
 for publication in the newspapers ; such publication was held to be in 
 excess of the privilege. 
 
 Pierce v. Ellis, 6 Ir. C. L. R. 55. 
 A personal attack on the private life and character of a candidate at a 
 parliamentary election, published by a voter in the newspapers, is not 
 privileged. " However large the privilege of electors may be," said Lord 
 Denman, C.J., "it is extravagant to suppose that it can justify the publi- 
 cation to all the world of facts injurious to a person who happens to stand 
 in tlie situation of a candidate." 
 
 Buncombe v. Da7nell, 8 C. & P. 222 ; 2 Jur. 32 ; 1 W. W. & H. 101. 
 A letter sent to a newspaper by members of the Town Council and pub- 
 lished therein, charging certain contractors for the erection of the Borough 
 Gaol with " scamping " their work, is not privileged ; although preferring 
 the same charge at a meeting of the Town Council probably would have been. 
 
 Himjyson v. Downs, 16 L. T. 391. 
 
 But see llarle v. Catherall, 14 L. T. 801. 
 The defendant, the tenant of a farm, required some repairs to be done at his 
 house ; the landlord's agent sent up two workmen, tlie plaintiff and Taylor. 
 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 l)roken open his cellar-door and drunk his cider. Two days 
 afterwards the defendant met the plaintiff and Taylor together, 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 both 
 were interested in the repairs being properly done ; that the statement made 
 to the plaintiff in Taylor's presence was also privileged, if not malicious ; but 
 
 R
 
 242 QUALIFIED PRIVILEGE. 
 
 tliat the repetition of the statement to Taylor in the absence of the plaintiff 
 was nnaiithorised and officious, and therefore not protected, although made 
 in the belief of its truth. 
 
 ToogooH V. Spyring, 1 C. M. & R. 181 ; 4 Tyrw. 582. 
 Proof that defendant industriously circulated the libel will be some evi- 
 dence of malice. 
 
 Gathercok v. Miall, 15 M. & W. 319 ; 15 L. J. Ex. 179 ; 10 Jur. 
 337. 
 A shareholder in a railway company summoned a meeting of share- 
 holders, and also invited reporters for the press to attend. Charges which 
 he made at such meeting against one of the directors for his conduct of the 
 affairs of the company, held not privileged, because persons not shareholders 
 were present. 
 
 Parsons v. Suryey, 4 F. & F. 247. 
 But where the auditors of a company reported that the manager's accounts 
 were badly kept, and that there was a large deficiency not accounted for ; 
 and at the general meeting this report with others was submitted to the 
 shareholders, and the meeting resolved that they should be printed and 
 circulated among the shareholders, which was done. Held that the privilege 
 attaching to such reports was not lost merely by the necessary publication 
 of them to the compositors, &c., in the ordinary course of printing. 
 
 Lawless v. Awjlo-Egyptian Coiton Co., L. R. 4 Q. B. 262 ; 10 
 
 B. & S. 226 ; 38 L. J. Q. B. 129 ; 17 W. R. 498. 
 And see Davis v. Cutbush and others, 1 F. & F. 487. 
 Lake V. King, 1 Lev. 240 ; 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58. 
 The plaintiff and defendant were jointly interested in property in Scot- 
 land, to the manager of which the defendant wrote a letter principally 
 about the property and the conduct of the plaintiff with reference thereto, 
 but also containing a charge against the plaintiff with reference to his 
 conduct to his mother and aunt. Held that though the part of the letter 
 about the defendant's conduct as to the property might be confidential and 
 privileged, such privilege could not extend to the part of the letter about 
 the plaintiff' 's conduct to his mother and aunt. 
 
 Warren v. Warren, 1 C. M. & R. 250 ; 4 Tyr. 850. 
 Simmonds v. Dunne, Ir. R. 5 C. L. 358. 
 If a clergyman or parish priest, in the course of a sermon, " make an 
 example " of a member of his flock by commenting on his misconduct, and 
 either naming him, or alluding to him in unmistakable terms ; his words 
 will not l^e privileged, although they were uttered bona fide in the honest 
 desire to reform the culprit and to warn the rest of his hearers ; and 
 although the congregation would probably be more interested in this part 
 of the discourse than in any other. If the words be actionable, the clergy- 
 man must justify. 
 
 Magrath v. Finn, Ir. R. 11 C. L. 152. 
 Kinnahan v. McCullagh, ib. 1. 
 B. V. Knight (1736), Bacon's Abr. A. 2 (Libel). 
 Gilpin V. Fowler, 9 Ex. 615 ; 23 L. J. Ex. 152 ; 18 Jur. 293. 
 And see Greemvood v. Prick, Cro. Jac. 91, as overruled by Lord 
 Denman, 12 A. & E. 726, ante, p. 6.
 
 PRIVILEGED REPORTS. 243 
 
 III. Privileged Eeports. 
 (i.) Reports of Judicial Proceedings. 
 
 Evciy impartial aucl accurate report of any proceed- 
 ing in a public law court is privileged, unless the court 
 has itself prohibited the publication, or the subject- 
 matter of the trial be unfit for publication. 
 
 This rule applies to all proceedings in any court of 
 justice, superior or inferior, of record or not of record. 
 " For this purpose no distinction can be made between a 
 court of piepoudre and the House of Lords sitting as a 
 court of justice. {Fer Lord Campbell in Lcivis v. Levy^ 
 E. B. & E. 537 ; 27 L, J. Q. B. 287 ; 4 Jur. IST. S. 970.) 
 And in the case of a magistrate or of justices sitting in 
 petty session, it is immaterial whether the application 
 be made to them ex parte or not. It appears to be also 
 immaterial whether the matter be one over which they 
 have jimsdiction or not, and whether they disj)ose of the 
 case finally or send it for trial to the assizes. 
 
 The reason for this privilege is thus stated by Law- 
 rence, J., in R. V. ^VrifjU, 8 T. E. 298. " The general 
 advantage to the country in having these proceedings 
 made public more than counterbalances the inconve- 
 nience to private persons Avhose conduct may be the 
 subject of such proceedings." Cockburn, C. J., uses 
 language almost identical in Wason v. Walter., L. E. 4 
 Q. B. 87 ; 8 B. & S. 730 ; 38 L. J. Q. B. 34 ; 17 W. E. 
 169; 19L. T. 418. 
 
 It is only since 1878 that tlic law Las extended so wide an 
 
 E 2
 
 244 QUALIFIED PRIVILEGE. 
 
 immunity to reports of proceedings before police magistrates or 
 justices of the peace. Thus, while Leivis v. Levy decided that 
 a report of a preliminary investigation before a magistrate was 
 privileged if the result was that the summons was dismissed 
 and the person accused discharged, still Duncan v. Tlavaites, 
 o B. & C. 55() ; 5 D. & R 447, is an express authority for hold- 
 ing such a report unprivileged, if the accused be ultimately seut 
 to take his trial before a jury. The reason for the distinction 
 is that in the former case the decision is final, and the investi- 
 gation at an end ; in the latter the examination was preliminary 
 merely, and the minds of the future jur}^ might be influenced 
 by the publication. 
 
 Again, there is an obvious distinction between an ex parte 
 application, where the accused has no opportunity of defending 
 himself, and a full trial where both parties address the court by 
 their counsel or solicitors, and call what witnesses they please. 
 There are even dicta of certain eminent judges which would 
 seem to deny any privilege to fair and accurate reports of 
 ex jMvte proceedings in the superior Courts. (Per Maule, J., 
 in Hoare v. Sllverlock (No. 2, 1850), 9 C. B. 23 ; 19 L. J. C. P. 
 215 ; and Abbott, C. J., in Duncan v. TInvaites, 3 B. & C. 556.) 
 But Curry v. Walter, 1 Bos. & P. 525 ; 1 Esp. 456, is an 
 express decision that such reports are privileged, a case which 
 was at one time doubted, but is now clear law. And now the 
 decision in Usill v. Hales settles the law, and extends immunity 
 to all bond fide and correct reports of all proceedings in a 
 magistrate's court, whether ex parte or otherwise ; and such 
 cases as R. v. Lee, 5 Esp. 123, must be considered to be over- 
 ruled, in so far at all events as they lay down any general rule 
 to the effect that it is unlawful to publish any report of ex parte 
 proceedings. 
 
 A third distinction was as to matters coram non judice. It 
 might Avell be contended that where a magistrate listens to a 
 slanderous complaint, and gives some advice as to a matter 
 wholly outside his jurisdiction, he is not discharging any magiste- 
 rial function nor acting in any judicial capacity. It is as though 
 the conversation took place in someprivatecitizen'sdrawing-room. 
 And to this effect was the decision in McGregor v. Thwaites, 
 3 B. & C. 24 ; 4 D. & R. 695. But this decision is practically 
 overruled by Usill v. Hides, in which case Lord Coleridge took
 
 I 
 
 REPORTS OF TRIALS. 245 
 
 a distinction (3 C. P. D. 324) between "inherent want of juris- 
 diction on account of the nature of the complaint" and "what may 
 be called resulting want of jurisdiction because the facts do not 
 make out the charge." His Lordship assumed that the applica- 
 tion was for a summons or order under the Masters and Work- 
 men's Act, an application, that is, which the magistrate would 
 have had jurisdiction to grant, had the facts when investigated 
 proved to warrant such a course. On that assumption, it fol- 
 lows, of course, that the magistrate had jurisdiction to listen 
 to the application, until the facts stated to him made it clear 
 that he had no power to grant the redress applied for. But in 
 the libel there is no word as to the Masters and Workmen's 
 Act ; it would seem rather that the applicants were desirous of 
 inverting the usual order of things, and of prosecuting their 
 employer for embezzlement. No doubt in this case it was the 
 duty of the magistrate to listen to the applicant until it became 
 clear from what he said that the magistrate had no jurisdiction 
 over the subject-matter of the complaint. But surely it is 
 equally the duty of the magistrate so far to listen to every 
 applicant. And an ordinary newspaper reporter can hardly be 
 expected to accurately distinguish between a magistrate's 
 •'inherent Avant of jurisdiction" and that which is merely 
 " resulting." Lopes, J., on the other hand, takes a broader 
 ground : — " The cases," he says (3 C. P. D. 329), " are clear to 
 show that want of jurisdiction will not take away the privilege, 
 if is maintainable on other grounds." (BucJdey v. Wood, 4 
 Rep. 146; Cro. Eliz. 230 ; Lal-e v. King, 1 Saund. 131; Fair- 
 man V. Ives, 5 B. & Aid. 642.) I think we may conclude that 
 newspapers may safely report in future everything that takes 
 place in open court, even though the magistrate should prove to 
 have no jurisdiction. 
 
 It is not clear, however, that the case of Usill v. Hales 
 disposes of the first distinction taken in Duncan v. Thwaites, 
 3 B. & C. 556, that a fair report of a magistrate's decision is 
 privileged Avheu it finally disposes of the matter of the applica- 
 tion, but is not privileged where the inquiry is but a pre- 
 liminary one, and the prisoner is committed to take his trial 
 at the Assizes or the Central Criminal Court. Lord Campbell 
 in Lewis v. Levy, E. B. & E. 561 ; 27 L. J. (Q B.) 290, appears 
 anxious not to overrule Duncan v. Thwaites, on this point at
 
 246 QUALIFIED PRIVILEGE. 
 
 all events : for lie is careful to lay down the rule that the 
 privilege attaching to fair and correct reports of proceedings 
 taking place in a public Court of Justice, " extends to proceed- 
 ings taking place publicly before a magistrate on the preliminary 
 investigation of a criminal charge ieritninaiinf) in the discharge 
 by the magistrate of the party charged." In Usill and Hales 
 the matter was finally disj)osed of by the magistrate ; it was 
 unnecessary therefore for the Court to decide the point. But 
 the whole spirit of the decision is against this time-honoured 
 distinction. Lord Coleridge frankly admits (p. 325) : — " I do 
 not doubt for my own part that if this argument had been 
 addressed to a Court some sixty or seventy years ago, it might 
 have met with a different result from that which it is about to 
 meet with to-day." And then after referring to R. v. Fleet, 
 1 B. & Aid. 379, and Duncan v. Thwaites, the learned Judge 
 continues : — " But we are not now living, so to say, within the 
 shadow of those cases." And his Lordship quotes a passage 
 from the judgment of the Court of Queen's Bench, in the case 
 of Wason v. Walter, L. R. 4 Q. B. 93, as "a passage which upon 
 the Avhole I should desire to adopt and adhere to : — ' Whatever 
 disadvantages attach to a system of imwritten law, — and of 
 these w^e are fully sensible, — it has at least this advantage, that 
 its elasticity enables those who administer it to adapt it to the 
 varying conditions of society and to the requirements and habits 
 of the age in wdiich we live, so as to avoid the inconveniences 
 and injustice which arise where the law is no longer in harmony 
 with the wants and usages and interests of the generation to 
 which it is immediately applied. Our law of libel has in many 
 respects only gradually developed itself into anything like 
 satisfactory and settled form. The full liberty of public writers 
 to comment on the conduct and motives of public men has 
 
 only in very recent times been recognised Even in 
 
 quite recent days judges, in holding the publication of the pro- 
 ceedings of Courts of Justice lawful, have thought it necessary 
 to distinguish what we call ex 'parte proceedings as a probable 
 exception from the operation of the rule. Yet ex parte pro- 
 ceedings before magistrates, and even loefore this Court, as, for 
 instance, on applications for criminal informations, are published 
 every day ; but such a thing as an action or indictment founded 
 on a report of such an ex parte proceeding is unheard of ; and
 
 REPORTS OF TRIALS. 247 
 
 if any such action or indictment should be brought, it would 
 probably be held that the true criterion of the privilege is not 
 whether the report was or was not ex "parte, but whether it was 
 a fair and honest report of what had taken place, published 
 simply with a view to the information of the public, and 
 innocent of all intention to do injury to the reputation of the 
 party affected." (L. K. 4 Q. B. 94 : 3 C P. D. 326.) Applying 
 a similar argument, we know that reports of all proceedings 
 before magistrates are published daily with impunity, whether 
 such proceedings are finally disposed of by the magistrate, or 
 whether the case is hereafter to come before a jury. Lopes, J., 
 intimates that he thinks it doubtful how far the old authorities 
 on this point might be followed in the present day (3 C. P. D. 
 329), I think, therefore, that if it is not already the law, it soon 
 will be the law, that a newspaper reporter may report everything 
 that occurs publicly in open court without fear of any action, pro- 
 vided only that his reports are fair and accurate, and not inter- 
 spersed with comments of his own. " The law upon such a 
 subject must bend to the approved usages of society, though still 
 resting upon the same principle, that what is hurtful and indicates 
 malice should be punished, and that what is beneficial and bond 
 fide should be protected." {Per Lord Campbell, C. J., in Lewis v. 
 Levy, E. B. & E. 560; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 970.) 
 
 Illustrations. 
 
 The following passage appeared in tlie the Daily Ncivs, the Standard, &\\A 
 the Mornincj Advertiser, o\\ the same morning:- — "Three gentlemen, civil 
 engineers, were among the applicants to the magistrate yesterday, and they 
 applied for criminal process against Mr. Usill, a civil engineer, of Great 
 Queen Street, Westminster. The spokesman stated that they had been 
 engaged in the survey of an Irish railway by Mr. Usill, and had not been 
 paid what they had earned in their various capacities, although from time 
 to time they had received small sums on account ; and, as the pei^son 
 complained of had been paid, they considered that he had been guilty of a 
 criminal offence in withholding their money. Mr. Woolrych said it was a 
 matter of contract between the parties ; and, although on the face of the 
 application, they had been badly treated, he must refer them to the County 
 Court. Mr. Usill thereupon brought an action against the proprietor of 
 each newspaper. The three actions were tried together beibre Cockburn, C. J., 
 at Westminster, on Noveml)er 15th, 1877. Tlie learjied judge told the jury 
 that the only (]uestion for their consideraticjn was whether or not the publica- 
 tion complained of was a fair and impartial report of Avhat took place before
 
 248 QUALIFIED PRIVILEGE. 
 
 the magistrate ; and that, if they found that it was so, the publication was 
 jtrivileged. The jury found that it was a fair report of what occurred, 
 and accordingly returned a A'erdict for the defendant in each case. HeM 
 that the report Avas privileged, although the proceedings Avere ex parte, 
 and although the magistrate decided that he had no jurisdiction over the 
 matter. 
 
 Usill V. Hales | 3 q p j) 3^9 ^- l. J. C. P. 323 ; 26 W. E. 
 UsMy.Brearley]^ 37^ . 33 l. t. 63. 
 Usill V. Clarke ' ' 
 
 See McGregor v. Thwaites, 3 B. & C. 24. 
 Where judicial proceedings last more than one day, and their publication 
 is not expressly forbidden by the Court, a report published in a newspaper 
 every 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. 
 
 Leivis V. Lcvif, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 
 970. 
 A rejiort of proceedings before a judge at chambers on an application 
 under 5 «& 6 Vict. c. 122, s. 42, to discharge a bankrupt out of custody, is 
 privileged. 
 
 Smith V. Scoff, 2 C. & K. 580. 
 Proceedings held in gaol before a registrar in bankruptcy, under the 
 Bankruptcy Act, 1861, ss. 101, 102, upon the examination of a debtor in 
 custody, are judicial and in a public Court. A fair report, therefore, of 
 those proceedings is protected. 
 
 EyaUs v. Leader and others, L. R. 1 Ex. 296 ; 12 Jur. N. S. 503 ; 
 
 4 H. & C. 555 ; 35 L. J. Ex. 185 ; 14 W. R. 838 ; 14 L. T. 
 
 563. 
 
 A fair and accurate report of proceedings before the examiners appointed 
 
 under 9 Geo. IV. c. 22, s. 7, to inf|uire into the sufficiency of the sureties 
 
 olfered on the trial of an election petition, was held privileged. 
 
 Cooper v. Lcmson, 8 A. & E. 746 ; 1 W. W. k H. 601 ; 2 Jur. 
 919 ; 1 P. & D. 15. 
 The defendants presented a petition in the Croydon County Coui-t 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 did not hear the case in open 
 Cotirt, but in his own room ; the public, however, could walk in and out 
 of the room at their pleasure during the hearing. Held, by Cockburn, C. J., 
 at Nisi Prius that a fair report of what took place before the County Court 
 judge in his room -was prima facie privileged. 
 
 Myers v. Defries, Times, July 23rd, 1877. 
 In Scotland there exists a public register of protested bills of exchange, 
 established by statute, and the registration of such protests has by statute 
 the effect of a " decreet," or final judgment of the Court of Session. The 
 contents of this register being public property, the defendant published an 
 accurate transcript thereof for the benefit of merchants. This was held 
 privileged, as being but a list of judgments of the Court. 
 Fleming \. Xcuion, 1 H. L. C. 363.
 
 PROHIBITED REPORTS. 249 
 
 But where the publisher of such a "Black List" left in it, as a still 
 existing liability, a judgment which had been annulled and satisfied by- 
 payment, the Irish Court of Queen's Bench held that this inaccuracy de- 
 stroyed all privilege. 
 
 McNally v. Oldham, 16 Ir. C. L. E. 298 ; 8 L. T. 604. 
 
 And see Jones v. McGovern, Ir. R. 1 C. L. 681. 
 
 Cosgrave v. Trade Auxiliary Co., Ir. R. 8 C. L. 349. 
 
 There are however two cases in which reports of jufli- 
 cial proceedings, although fair and acciu-ate, are not 
 privileged, and arc indeed illegal. 
 
 (i.) The fii'st is where the Coui't has itself prohibited 
 the publication, as it fi-equently did in former days. 
 '' Every court has the power of preventing the publica- 
 tion of its proceedings pending litigation." [Per Turner, 
 L. J., in Brook v. Evans, 29 L. J. Ch. G16 ; 6 Jm\ N. S. 
 1025; 8 W. E. 688.) But such a prolubition now is 
 rare (and see Lev7j v. Lmvson, E. B. & E. 500 ; 27 L. J. 
 Q. B. 282.) 
 
 (ii.) The second is where the subject-matter of the 
 trial is an obscene or blasphemous libel, or where for any 
 other reason the proceedings are unfit for publication. 
 It is not justifiable to publish even a fair and accurate 
 report of such proceedings : for such report may itself 
 be indictable as a criminal libel. 
 
 Illustrations. 
 
 On the trial of Thistlewood and others for treason, in 1820, Abbott, C.J. 
 announced in open court that he prohibited the jrablication of any of the 
 proceedings 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 tiled. The proprietor of the Observer was summoned 
 for the contempt, and failing to appear, was fined £500. 
 It. V. Clement, 4 B. & Aid. 218. 
 
 Richard Carlile on his trial read over to the jury tlie wdiole 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 Jiis trial, entitled 
 "The Mock Trial of Mr. Carlile," and in so doing republished (he 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
 
 2 so QUALIFIED PRIVILEGE. 
 
 not extend to sucli a colourable reproduction of a blasphemous book ; and 
 tliat 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, blas- 
 phemous, or indecent nature. 
 
 E. V. Mary Carlile (1819), 3 B. & x\ld. 167. See also the remarks 
 of Bayley, J., in 
 
 B. V. Creevey, 1 M. & S. 281. 
 The Protestant Electoral Union published a book, called " The Confes- 
 sional Unmasked," intended to show the pernicious influence exercised by 
 Roman Catholic priests in the confessional over the minds and consciences 
 of the laity. This was condemned as obscene in E. v. Hicklin, L. R. 3 Q. B. 
 360 ; 37 L. J. I\r. C. 89 ; 16 W. R. 801 ; 18 L. T. 395 ; 11 Cox, C. C. 19. 
 The Union thereupon issued an expurgated edition, for selling which one 
 George Mackey was tried at the Winchester Quarter Sessions on Oct. 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 pub- 
 lished " 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 his decision was correct. 
 
 Steele v. Brannan, L. R. 7 C. P. 261 ; 41 L. J. M. C. 85 ; 20 
 W. R. 607 ; 26 L. T. 509. 
 
 The rej)ort must be an impartial and acciu'ate account 
 of what really occurred at the trial ; else no privilege 
 will attach. It is the duty of the judge to exclude 
 irrelevant evidence ; if therefore such evidence be given 
 in court and appear in the report, this is not the fault of 
 the reporter. [Rtjalls v. Leader., L. E. 1 Ex. 300 ; 35 
 L. J. Ex. 185 ; 14 W. R. 838 ; 12 Jur. IS". S. 503; 14 L. T. 
 563.) The sworn evidence of the witnesses should be 
 relied on, rather than the speeches of advocates. Coun- 
 sel are fi*equently instructed to open to the jui-y facts 
 which they fail to prove in evidence. If such an unsub- 
 stantiated statement be reported at all, the reporter 
 should add, "but this the plaintiff failed to prove:" 
 but it would be better to avoid all allusion to the matter. 
 Especial care should be taken to report accuratel}^ the 
 summing up of the learned judge, especially if the case 
 be of more than transitory interest. In many cases a
 
 FAIR ABSTRACT. 251 
 
 report has escaped the charge of partiality on the ground 
 that it contained an accurate report of the judge's sum- 
 ming up of the case to the jury. [Milissich v. Lloyds^ 
 46 L. J. C. P. 404; 36 L. T. 423; Chalmers v. Payne, 
 2 C. M. & E. 156 ; 5 Tyrw. 766 ; 1 Gale, 69.) 
 
 Of coiu'se the report need not be verbatim; it may be 
 abridged or condensed; but it must not be partial or 
 garbled. It need not state all that occurred in extenso ; 
 but if it omit any fact which would have told in the plain- 
 tiff 's favour, it will be a question for the jury whether 
 the omission is material. Thus the entire suj)pression of 
 the evidence of one witness may render the report unfaii". 
 [Duncan v. Thivaites, 3 B. & C. 580.) But a report will 
 be privileged if it is " stihstaiitially a, iaiv accoimt of what 
 took place" in court. (Per Lord Campbell, C. J., in 
 Andrews v. Chapman^ 3 C. & K. 289.) " It is sufficient 
 to publish a fail- abstract." [Per Mellish, L. J"., in 
 Milissich v. Lloyds, 46 L. J. C. P. 405 ; Per Byles, J., 
 in Turner v. Sidlivan and others, 6 L. T. 130.) 
 
 The privilege is not confined to reports in a newspaper 
 or law magazine. It attaches equally to fair and accu- 
 rate 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, 46 L. J. C. P. 404; Salmon v. Lsaac, 20 L. T. 885.) 
 
 Nor does it matter by whom the report is published ; 
 the privilege is the same, as a matter of law, for a private 
 individual as for a newspaper. [Per Brett, L.J., 46 L. J. 
 C. P. 407.) "I do not think the public press has any 
 peculiar privilege." [Per Bramwell, LJ., 5 Ex. D. bQ.) 
 
 If a publication purports to be a report of a trial, it 
 A\ill, it seems, be assumed in favour of the defendant 
 that such a trial really took place : unless the plaintiff
 
 252 QUALIFIED PRIVILEGE. 
 
 adduces some evidence to the contrary. " We cannot 
 suppose, without proof, that the occiuTence of such a 
 trial was mere invention, or that newspapers publish 
 reports of merely imaginary trials." {Per Alderson, B., 
 in Chalmers v. Fcujne, 5 Tyrw. 7G9 ; 2 C. M. & E. 159 ; 
 1 Gale, 69.) 
 
 Where the report is clearly absolutely fair and there 
 is no suggestion of malice, the judge should stop the 
 case and direct a verdict for the defendant : e.g. where 
 the report is verhatim or nearly so ; or corresponds in 
 all material j)articulars with a report taken by an impar- 
 tial shorthand wi'iter. [Per Brett, L.J., in MiUssich v. 
 Llofjds, 46 L. J. C. P. 407.) But if anything be omitted 
 in the report which could make any appreciable dif- 
 ference 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 deviations 
 from absolute accuracy make the report unfair' ; and the 
 judge at Nisi Prius should not direct a verdict for either 
 party. [Risk Allah Bey v. Whitehurst and others, 18 
 L. T. 615 ; street v. Licensed Victuallers Societf/.^ 22 
 W. R. 553.) 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 mind 
 of an unprejudiced reader who reads the report straight 
 through, knowing nothing about the case beforehand. 
 Slight errors may easily occui-j and if such errors do not 
 substantially alter the impression of the matter which 
 the ordinary reader would receive, the jury should find 
 for the defendant. If however there is a substantial 
 misstatement of any material fact, and such misstatement 
 is prejudicial to the reputation of the plaintiff, then 
 the report is unfair and inaccurate, and the jury should 
 find for the plaintiff.
 
 INACCURACIES. 
 
 Illustrations. 
 
 253 
 
 111 a former action for libel brought by the plaintiff, the then defendant 
 had justified. The report of tliis 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 direc- 
 tion of Lord Abinger, took the "bane" and the "antidote" together and 
 foun.I 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. Paijne, 5 Tyrw. 766 ; 1 Gale, 69 ; 2 C. M. & R. 156. 
 
 IHcas V. Lmvson, 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 wi'itten 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. E. Co., 6 B. & S. 340 ; 34 L. J. Q. B. 152 ; 
 13 W. R. 651 ; 11 Jur. N. S. 619. 
 A barrister, editing a book on the Law of Attorneys, referred to a case. 
 Re Blake, 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 years, as appeared from the Law Journal report. The publishers were 
 held 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. 
 
 Gwynn v. S. E. R. Co., 18 L. T. 738. 
 
 Biggs v. G. E. R. Co., 16 W. R. 908 ; 18 L. T. 482. 
 
 R. V. Lofeild, 2 Barnard, 128. 
 Where the report of a trial gave none of the evidence, but only an 
 abridgment of the speeches of counsel, and the defendant pleaded that it 
 was still, ill substance, a true report of the trial ; such plea was held bad 
 on demurrer. 
 
 Flint V. Pike, 4 B. & Cr. "473 ; 6 D. & 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. 
 
 Saunders v. Mills, 6 Bing. 213 ; 3 M. & P. 520. 
 
 Woodgate v. Ridoat, 4 F. & F. 202. 
 Still less will it be privileged, if after so stating tlie 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. JFalter, 4 B. & Aid. G05.
 
 254 QUALIFIED PRIVILEGE. 
 
 Where a report in the Times of a preliminary investigation before a 
 magistrate set out at length the opening of the counsel for the prosecu- 
 tion, but entirely omitted the examination and cross-examination of the 
 prosecutor, tlie only witness, merely saying that " his testimony sup- 
 ported the statement of his counsel," the jury found a verdict for the 
 plaintiff. Damages £lO. 
 
 Pinero v. Goodlake, 15 L. T. 676. 
 
 [X.B. — The lieadnote to this case is strangely misleading ; the pro- 
 ceedings were not ex parte ; the defendant, himself a solicitor, was present 
 and cross-examined the witnesses. The important monosyllable " no " ap- 
 pears to be omitted in the report of the argument of Coleridge, Q.C. p. 677.] 
 
 Where the report of a criminal trial gave the speech for the prosecu- 
 tion, a brief resume of the sjieech of the prisoner's counsel, who called 
 no witnesses, and the whole of the Lord Cliief Baron's summing up in 
 exfenso ; 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 
 cpiestion 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. 423 ; 
 13 Cox, C. C. 575. 
 
 No privilege attaches to the report of unsworn statements made by a 
 bystander at an inquest. 
 
 Lynam v. Goicing, 6 L. E. Ir. 259. 
 
 The reporter nmst add nothing of his own. He must 
 not state his opinion of the conduct of the parties, or 
 impute motives therefor : above all he must not insinuate 
 that a particular witness committed perjmy. Tliis is not 
 a report of what occurred ; it is the comment of the ^viiter 
 on what occurred, and to this no privilege attaches. 
 Often no doubt such comments may be justified on 
 another ground, that they are fair and honci fide criticism 
 on a matter of public interest and are therefore not libel- 
 lous. (See r«z/t', c. II. pp. 4:4 — 40.) But such observations, 
 to Avhich 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
 
 NO COMMENTS. 255 
 
 place in court, and tlie two things, report and comment, 
 should be kept separate." i^Per Ld. Campbell, C. J., in 
 Andrews v. Chapman^ 3 C. & K. 288.) And all sensa- 
 tional 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 di^fendant's newspaper 
 puldished a report of the case, interspersed with comments wliich assumed 
 the guilt of the captain, commended the 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. 
 
 It. V. Fisher and others, 2 Camp. 563. 
 
 And see R. v. Lee, 5 Esp. 123. 
 
 R. V. Fleet, 1 B. & Aid. 37.9. 
 It is libellous to publish a highly-coloured account of criminal proceed- 
 ings, 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. Nokes, 7 East, 493 ; same case sub nomine Carr v. Jones, 
 3 Smith, 491. 
 The report of a trial set out the speech for the counsel for the prosecu- 
 tion, and then added : — " The first witness was E. 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." Held that no privilege applied. 
 
 Leiuis V. Walter, 4 B. & Aid. 605. 
 
 Roberts v. Brown, 10 Bing. 519 ; 4 Moo. & Sc. 407. 
 On an examination into the sufficiency of sureties on an election peti- 
 tion, 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 propurly left to the jury to say
 
 256 QUALIFIED PRIVILEGE. 
 
 whether they were a fair and hona fide comment on a matter of public 
 iuteredt in that borough. Verdict for the phiintitf. Damages £100. 
 
 Cooper V. Lawson, 8 A. & E. 74G ; 1 W. W. & II. 601 ; 2 Jur. 
 
 919 ; i P. & D. 15. 
 
 The Observer gave a true and faithfiil account of some proceedings in the 
 
 Insolvent Debtors Court, but headed it with the words " Shameful conduct 
 
 of an attorney." Held that for those words, as they were not justified, the 
 
 plaintiff was entitled to recover. 
 
 Clement v. Lems, (Exch. Ch.), 3 Br. & B. 297 ; 3 B. & Aid. 702 ; 
 
 7 Moore, 200. 
 Bishop V. Latimer, 4 L. T. 775. 
 A i^aragraph was headed " An lionest lawyer," and stated that the 
 plaintiff had been reprimanded by one of the Masters of the Queen's 
 Bencli, " for what is called sharp practice in his profession." Held 
 libellous. 
 
 Boydell v. Jones, 4 M. & W. 446 ; 1 H. & H. 408 ; 7 Dowl. 210. 
 Fli7it V. Pike, 4 B. & C. 473 ; 6 D. & E. 528. 
 A report of the hearing of a charge of perjury before a magistrate, was 
 headed " Wilful and Corrupt Perjury," and stated 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. 
 
 Leivis V. Levy, E. B. & E. 537 ; 27 L. J. Q. B. 282 ; 4 Jur. N. S. 
 970, 
 
 Tlic privilege attaching to fair and acciu-ate reports 
 may of course be rebutted by proof of actual malice. 
 Eeports of judicial ju'oceedings are not absolutely privi- 
 leged, by whomsoever published. [Stevens v. Sampson, 
 5 Exch. D. 53.) But it is of course very difficult to 
 prove that an ordinary newspaper reporter has been 
 actuated by express malice : whereas if one of the parties 
 to a cause or his solicitor sent the report, this unusual 
 conduct alone would be some evidence of malice, and the 
 jury would start with a presumption that the report was 
 biassed and unfair. [See the remarks of Wood, Y.-C, 
 in Coleman v. West Hartlepool Harbour J)- Eaihvay C/j.., 
 2 L. T. 7GG ; 8 W. E. 734.) 
 
 In these cases there are in fact two distinct questions for the 
 
 \
 
 MALICIOUS REPORTS. 257 
 
 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 published 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 reputation of the plaintiff? This second question 
 of course only arises when the first has been already answered 
 in the affirmative. 
 
 Illustrations. 
 
 A churclivvarden obtained a writ of proliibitiou against the Bishop of 
 Cliichester on an affidavit wliich faisely stated the facts. He immediately- 
 had the writ translated into English, and dispersed 2000 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 lil)el." 
 
 JVaterfield v. Bishop of Chichester, 2 Mod. 118. 
 In a County Court action, Nettkfold v. Fulcher, 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 iu sub- 
 stance a fair report ; " but they also found that " it was sent with a certain 
 amount of malice." Verdict for the plaintiff. Damages, 405. On appeal, it 
 was argued tliat 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 immaterial. But the Court of Appeal held that Cockburn, C.J . 
 was right in directing judgment to be entered for the plaintiff. 
 
 Stevens v. Sampson, 5 E.x. D. 53 ; 49 L. J. Q. B. 120 ; 28 W. R. 
 87 ; 41 L. T. 782. 
 Where the Court of Directors resolved to dismiss the plaintiff, one of 
 their officers, for misconduct, and the defendant, the Governor in Council 
 of Fort St. George, published this sentence of dismissal, it was held that no 
 action lay, if it was part of the defendant's official duty so to publish it. 
 Oliver v. Lord Wm. Bentinck, 3 Taunt. 456. 
 See Grant v. Secretary of State for India, 2 C. P. D. 445 ; 25 W. 
 R. 848 ; 37 L. T. 188, a7ite, p. 196. 
 
 (ii.) liejjorts of Furllamentary Proceedinf/s. 
 
 Every fair and accurate report of aiiy proceeding in 
 either House of Parliatnent or in any committee thereof, 
 is privileged, even though it contain matter defamatory 
 of an individual.
 
 258 QUALIFIED PRIVILEGE. 
 
 The analogy between such rejDorts and those of legal 
 proceedings is complete. Whatever Avould deprive a 
 report of a trial of immunity, will equally deprive a 
 rej^ort 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. 
 84 ; 17 W. R. 169; 19 L. T. 409. Such doubt was caused by 
 the fact that there were standing orders of both Houses of Parha- 
 ment prohibiting such publications ; 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. 249) that when a learned judge expressly pro- 
 hibits the publication of the jDroceedings before him, any report 
 of them is a contempt and wholly unprivileged. (R. v. Clement, 
 4 B. & Aid. 218). And the earliest reports of parliamentary pro- 
 ceedings 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 
 Gentleman's 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 publisher 
 of the Mornhig Herald were committed to the custody of 
 Black Rod, for publishing an account of a debate in the House 
 of Lords ; but then such account was expressly declared to be 
 " a scandalous misrepresentation " of what had really occurred. 
 And now such standing orders are quite obsolete. Within the 
 last four or five years the House of Commons has modified its 
 rules as to the presence of " strangers : " while the House of 
 Lords has appointed a commission to increase the facilities 
 given to reporters, and this' commission has actually suggested 
 the removal of the woolsack to the other end of the House so 
 as to enable their Lordships to be more distinctly heard.
 
 PARLIAMENTARY REPORTS. 259 
 
 A speech made by a member of Parliament in the 
 House is of course absohitel^y priA^ileged. If he subse- 
 quently causes his speech to be printed, and circulates it 
 privately among his constituents, bond fide for their 
 information on any matter of general or local interest, a 
 cj[ualified privilege would attach to such report ; [in spite 
 of an obsolete order of the House of Commons forbidding 
 such publication, passed in 1641, and still a standing 
 order of the House ; 2 Commons' Journal, 209]. (Per Ld. 
 Campbell, C. J., and Crompton, J., in Davison v. Duncan, 
 7 E. & B. 233 ; 26 L. J. Q. B. 107 ; and Cockburn, C. J., 
 in Wason v. Walter, L. E. 4 Q. B. 95 ; 38 L. J. Q. B. 42 ; 
 19 L. T. 416.) But if a member of parliament publishes 
 his speech to all the Avorld with the malicious intention 
 of injuring the plaintiff, he will be liable both civilly and 
 criminally. (R. v. Lord Ahingdon, 1 Esp. 226 ; R. v. 
 Crceveij, 1 M. & S. 273.) 
 
 Illustrations. 
 
 The defendant pnblislied tlie report of a select committee of the Honse of 
 Commons which contained a paragraph charging an individual with holding 
 views liostile 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 
 liroceeding in parliament. 
 
 B. V. Wright (1799), 8 T. R. 293. 
 The plaintiff induced Earl Piussell 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 present- 
 ing such a petition was severely commented on liy the Earl of Derby and 
 others in the debate which followed. The plaintiff sued the proprietor of 
 the Times for reporting this deliate. Cockburn, C.J., directed tlie jury that 
 if they were satisfied that the report was faithful and correct, it was in 
 point of law a privileged comnuuiication ; and the Court of Queen's Bench 
 subsequently discharged a rule nisi which had Ijeen obtained fur a new 
 trial on the groirnd of misdirection. 
 
 JFason v. Walter, L. R. 4 Q. B. 73 ; 8 B. & S. C7l ; 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. 
 
 s 2
 
 26o QUALIFIED PRIVILEGE. 
 
 (iii.) Oilier Reports. 
 
 No other reports are privileged. If any one pnblishes 
 an account of the proceedings of any meeting of a town- 
 council, board of guardians, or yestry, of the share- 
 holders in any company, of the subscribers to any 
 charity, or of any public meeting, political or otherwise ; 
 and such account contains exj)ressions defamatory of the 
 plaintiff; the fact that it is a fair and accm-nte report 
 of Avhat actually occuiTcd will not avail as a defence, 
 though it may be urged in mitigation of damages. By 
 printing and publishing the statements of the various 
 speakers, he has made them his own ; and must either . 
 justify and prove them strictly true, (c. YII.) or he may 
 rely upon their being fail- and bond fide comments on a 
 matter of public interest. 
 
 Illustrai'ions. 
 
 The defendants, the printers and publishers of the Manchester Courier, 
 published in their paper a report of the proceedings at a meeting of the 
 Board of Guardians for the Altrinchaui Poor Law Union, at which ex j^arte 
 charges were 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 was one of public interest ; but that the report was not 
 privileged by the occasion, although it was admitted to be a bona fide and 
 a correct account of what passed at the meeting; and the plaintiff recovered 
 40s. damages and costs. 
 
 Purcell V. Solder, 1 C. P. D. 781 ; 2 C. P. D. 215 ; 46 L. J. C. P. 
 308; 25 W. R. 362 ; 36 L. T. 416. 
 A public meeting was called for the purpose of petitioning Parliament 
 against the grant to the Roman Catholic College at Maynooth. The 
 defendant made a telling speech at such meeting commenting severely on 
 penances and other portions of the discipline of the Roman Catholic 
 Church. Had the words been defamatory of the plaintiff", the Court held 
 that they would not have been privileged, although the object of the meet- 
 ing was legal, and the defendant's speech was pertinent to the occasion. 
 
 Henrne v. Stou-ell, 12 A. & E. 719 ; 4 P. & D. 690 ; 6 Jur. 458 ; 
 
 ante, p. 127. 
 See Pierce v. Ellis, 6 Ir. C. L. R. 55. 
 At a meeting of the West Hartlepool Improvement Commissioners, one
 
 NEWSPAPER REPORTS. 261 
 
 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 owTier of the newspaper for libel. A plea of justification alleging 
 that such remarks were in fact made at a public meeting of the commis- 
 sioners, and that the alleged libel was an impartial and accurate report of 
 wliat took place at such meeting, was held bad on demurrer. 
 
 Davison v. Duncan, 7 E. & B. 229 ; 26 L. J. Q. B. 104; 3 Jur. 
 
 N. S. 613 ; 5 W. E. 253 ; 28 L. T. (O. S.) 265. 
 
 So also a newspaper j^roprietor 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 themselves. 
 
 Pophavi V. Piclcburn, 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. Watton, 6 C. k P. 385. 
 
 It is considered that this rule works a hardship upon news- 
 paper proprietors, who in the ordinary course of their business 
 have presented to the public a full, true and impartial account 
 of what really took place at a public meeting, considering no 
 doubt that thereby they were merely doing their duty. The 
 Scotch Law on the subject is said to be less stringent than that 
 of England or Ireland. The Select Committee of the House of 
 Commons appointed to inquire into the Law of Libel " after 
 careful consideration, have come to the conclusion that the 
 balance of convenience requires that further protection should 
 be given to such reports." They "accordingly recommend that 
 any report published in any newspaper of the proceedings of a 
 public meeting should be privileged, if such meeting was law- 
 fully convened for a lawful purpose, and was 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." But they "are of opinion that such 
 protection should not be available as a defence in any pro- 
 ceeding if the plaintiff or prosecutor can show that the de- 
 fendant has refused to insert a reasonable letter, or statement 
 of explanation or contradiction by or on behalf of sucli plaintiff 
 or prosecutor." 
 
 But it appears to me that no adequate reasons arc assigned 
 for such a change in the law. The consequences of publishing
 
 262 QUALIFIED PRIVILEGE. 
 
 ill 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, 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 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 
 ditfused 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 imjDortauce and weight is given 
 to such a calumny by its republication in the columns of a 
 respectable 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 ex- 
 tended circulation by the press. See the remarks of Lord 
 Campbell in Davison v. Duncan, 7 E. & B. 231 ; 26 L. J. Q. B. 
 lOG ; 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, pp. 157, 8, c. VI. 
 
 The Select Committee appear to me, if I may venture to say 
 so, to have attached too much importance to the absence of 
 malice, which generally characterises such reports, and too 
 little importance to the damage inflicted on the plaintiff by 
 the publication. Their proviso as to the insertion of the 
 plaintiff's contradiction is clearly intended to protect reports 
 published bond fide or inadvertently, as distinct from those 
 published maliciously. But malice is in no way essential to an 
 action of libel, except in cases of qualified privilege. It is 
 surely anomalous to determine the question : " Was the 
 occasion such as to create a privilege for the libel ? " by refer- 
 ence to the subsequent conduct of the defendant. And it is, I 
 think, but a poor satisfaction to a plaintiff to allow him to 
 write " a reasonable letter of contradiction." Many who read 
 the report would not read the plaintiff's letter, and those who 
 did would probably not believe it; they would say: "Oh, of 
 course he denies it." It would be difficult too to decide what
 
 NEWSPAPER REPORTS. 263 
 
 is and what is not " a veasonahle letter " under such circum- 
 stances. And then the sj)eaker at the meeting, or some friend of 
 his, would 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 would be bound in fairness to insert. And thus 
 would arise a newspaper warfare which would only prolong and 
 aggravate the mischief caused by the report. 
 
 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. The Select Committee do not desire to encourage 
 any mischievous prying into the private affairs of others, for 
 they add the express proviso " if the publication of the matter 
 complained of was for the public benefit." If, however, the 
 matter is one of public interest, then all fair and bond fide 
 comments thereon are held not to be libellous, and no action 
 lies. And surely if unfair and maid fide comments appear in a 
 newspaper, the owner ought to be held liable for the injury 
 thus done by his subordinates. In criminal proceedings, news- 
 paper proprietors can avail themselves of the defences allowed 
 them by Lord Campbell's act, which appear to me sufficient for 
 the purpose.
 
 CHAPTER IX. 
 
 MALICE. 
 
 ''In an ordinary action for a libel or for words, though 
 evidence of malice may be given to increase the damages, 
 it never is considered as essential, nor is there any in- 
 stance of a verdict for the defendant on the ground of a 
 want of malice." [Per Bayley, J., in BromageY. Prosser, 
 1 C. & P. 475 ; 4 B. & C. 257 ; 6 Dowl. & E. 295 ; and 
 per Mansfield, C. J., in Hargrave v. Le Breton^ 4 Burr. 
 2425.) As we have seen, an accidental or inadvertent 
 publication of defamatory words is ground for an action. 
 Even a lunatic is liable for a libel. {^Per Kelly, C. B., 
 in Mordaunt v. Mordawit, 39 L. J. Prob. & Matr. 59.) 
 The Coiu-ts for this purpose look at the tendency of the 
 j)ublication, not at the intention of the publisher. (Haire 
 V. Wilson, 9 B. & C. 643 ; 4 Man. & Ey. 605 ; Fisher v. 
 Ckmcnf, 10 B. & C. 472 ; 5 Man. & Ey. 730.) The fact 
 that the jury have exj)ressly found in defendant's favoiu- 
 that he had no malicious intent, shall not avail him. (Per 
 Maule, J., in Wennum v. Ash, 13 C. B. 845 ; 22 L. J. 
 C. P. 190; 17 Jur. 579 ; 1 C. L. E. 592 ; Ilnntleg v. 
 Ward, 6 C. B. N. S. 514 ; 6 Jur. N. S. 18 ; 1 F. & F. 
 552 ; BlacTchurn v. BlacJchurn, 4 Bing. 395 ; 1 M. & P. 
 33, 63 ; 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 natu- 
 rally resulting therefrom.
 
 MALICE IN FACT. 265 
 
 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 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 
 plaintiff had been hanged for stealing a horse, and on the 
 evidence it appeared that defendant spoke the words in genuine 
 grief and sorrow at the news, Hobart, J., nonsuited the plaintiff 
 on the express ground that the words were not spoken ma- 
 liciously ; Crawford v. Middhton, 1 Lev. 82. And see Green- 
 luood V. Frich, cited Cro. Jac. 91, ante, p. 6. Now, however, 
 the absence of malice could only be given in evidence in miti- 
 gation of damages ; and the question whether the defendant 
 acted maliciously or not, should never be left to the jury, unless 
 the occasioii be privileged. {Ha ire v. Wilson, 9 B. & C. 643 ; 
 4 Man. & Ry. 605. Per Lord Denman in Baylis v. Laivrence, 
 11 A. & E. 924 ; 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, in fact, immaterial. 
 
 If I have in fact wrongfully injured another's reputation, I 
 must compensate him, although I may have acted from the 
 noblest motives. Just as if I break A.'s window accidentally 
 in the attempt to save a child from falling down a grating, I 
 am still bound in law to pay A. the value of the broken pane. 
 If, then, I have defamed A. without lawful excuse, that is, on 
 an occasion not privileged, malice forms no part of the issue. 
 {Hooper v. Truscott, 2 Scott, 672 ; 2 Bing. N. C. 457 ; Godson 
 v. Home, 1 Br. & B. 7 ; 3 Moore, 223.) 
 
 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 
 cases contain many dicta to the effect that " malice " is essential 
 to an action for libel or slander. But in all these cases the 
 word "malice" is used in a special and technical sense; it 
 denotes '^ the absence of laivful excuse;" in fact, to say that 
 defamatory words are malicious in that sense means simply that 
 they are unprivileged, not employed under circumstances which 
 excuse them. But I have dropped this technical and fictitious 
 use of the word altogether — a use which has been termed an 
 "unfortunate" one by learned judges. (See 41 L. T. 590.) I
 
 266 MALICE. 
 
 use tlie word malice 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 ashnmed. This is called " exjjress 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 that plea is placed on the 
 record, the plaintiff has to prove malice, but not before. 
 
 But as soon as the Judge rules that the words are 
 privileged by reason of the occasion on which they were 
 uttered or published, then (unless, indeed, the privilege 
 be absolute), the question of malice becomes all-imj)ortant. 
 In the words of Lord Justice Brett in Clark v. Molpteia; 
 (3 Q. B. D. 24G, 247 ; 47 L. J. Q. B. 230 ; 26 W. E. 
 104 ; 37 L. T. G94 ) : — " 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 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 permitted to take advantage of the 
 privilege. If the occasion is privileged it is so for some 
 reason, and the defendant is only entitled to the jDro- 
 tection 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 indii'ect 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 indii*ect and T^Tong 
 motive. If the indirect 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,
 
 MALICE IN LAW. 267 
 
 no ouc need inquire further. Everybody assumes tlience- 
 fortli that he was malicious, that he did do a wi'ong 
 tiling 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, reck- 
 lessly, by reason of his anger or other motive, the jury 
 may infer that he used the occasion, not for the reason 
 which justifies it, but for the gratification of his anger 
 or other indu-ect motive. The judgment of Bayley, J., 
 in Bromagc v. Prosscr^ 4 B. & C, at p. 255, treats of 
 malice in law, and no doubt where the word ' mali- 
 ciously' is used in a pleading, it means intentionally, 
 wilfully. It has been decided that if the word ' mali- 
 ciously ' is omitted in a declaration for libel, and the 
 words 'wrongfully' or 'falsely' substituted, it is suffi- 
 cient, the reason being that the word ' maliciously,' 
 as used in a pleading, has only a technical meaning ; but 
 here we are dealing with malice in fact, and malice then 
 means a wrong feeling in a man's mind." 
 
 Malice may be defined as any indirect and wicked 
 motive which induces the defendant to defame the 
 plaintiff. If malice be proved, the privilege attaching 
 to the occasion is lost at once. 
 
 lllustratioyis. 
 
 Plaintiff assaulted the defendant on the highway ; the defendant met a 
 constable 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 that the charge of felony Avas malicious, as being made 
 from an indirect and improper motive. 
 
 Hmith V. HodgesJcins, Cro. Car. 276. 
 
 A near relative, or even an intimate friend, may warn a lady not to marry 
 a particular suitor, and assign his reasons for thus- cautioning her, provided
 
 268 MALICE. 
 
 this be done \\'\\X\ a coiisciuiilious desire for her well'arej and iu the bond fide 
 belief that the charges made are true. 
 
 Todd y.^Hmdins, 2 M. & Eol). 20 ; 8 C. & P. 888. 
 But if a total stranger wrote an anonymous letter to the lady ; or a fortiori, 
 if a rival thus endeavoured to oust the plaintiff from the lady's affections, 
 there -svould be evidence of malice to go to the jury. 
 
 The defendant on being applied to for the character of the ])laintifi' who 
 had been his saleswoman, charged her with theft. He had never made such 
 a charge against her tUl then ; he told her that he would say nothing about it, 
 if she resumed her employment at his hoiise ; 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. 
 
 Jachon v. Hopperton, 16 C. B. (N. S.) 829 ; 12 W. E. 913 ; lo 
 L. T. 529. 
 
 Bogers v. Clifton, 3 B. & P. 587. 
 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 
 compoimd the alleged felony, and not for the purpose of prosecution or 
 investigation. He actually received .£50 from plaintiff's brother as hush- 
 money. Held that the charge of felony was altogether unprivileged. 
 
 Hooper v. Tniscott, 2 Bing. N. C. 457 ; 2 Scott, 672. 
 Letters from the commanding officer of a regiment to his immediate 
 superior, containing charges against the colonel in command ; and a con- 
 versation with a member of Parliament as to a question to be put in the 
 House of Commons relative to the dismissal of the colonel on those charges, 
 were held to be prima facie privileged : but circumstances showing that the 
 letters were "nTitten, not from a sense of duty, but from personal resentment 
 on account of other matters, and that the object of the conversation was to 
 prejudice the plaintiff by reason of such personal resentment — lield, evidence 
 of actual malice, taking aAvay the privilege. 
 
 DicTcson v. The Earl of Wilton, 1 F. & F. 419. 
 A speech made by a member of Parliament in the House is absolutely 
 privileged ; 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. Crecvey, 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 schoolmaster. 
 
 Gilpin V. Foxdcr, 9 Ex. 615 ; 23 L. J. Ex. 152 ; IS Jur. 293.
 
 PLAINTIFF MUST PROVE MALICE. 269 
 
 The det'eudants presented a petition in tlie Uroydon County Court to 
 adjudicate the pUiintiff 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 fraudulent. After tlie case was over, the defendants sent for a 
 reporter to the Greyhound Hotel, and gave him an account of the proceed- 
 ings before the County (^nnt 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 tliat theplaintilf 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, sutlicient to destroy the privilege 
 attaching to all fair reports of legal proceedings. Per Cockburn, C. J., at 
 Nl&i Prius, Myers v. Defries, Times, July 23rd, 1877. [But the jury being 
 satisfied from the whole circumstances that the defendant furnished the 
 report witli the express intention of injuring the plaintiff, gave the plaintilf 
 £-lb() damages on the first trial, and one farlliing damages on the second. 
 See Myers 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. 695 ; from which it would seem the 
 jury at all events considered that a man may not injure his enemv, even 
 with a fair weapon.] 
 
 And see Stevens v. Sampson, 5 Exch. Div. 53 ; 49 L. J. Q. B. 
 
 120 ; 28 W. R. 87 ; 41 L. T. 782. 
 Salmon v, Isaac, 20 L. T. 885. 
 
 The onus of proving malico lies on the plaintiff ; the 
 defendant cannot be called on to prove he did not 
 act malicionsly, till some evidence of malice, more than a 
 mere scintilla^ has been adduced by the plaintiff. [Taylor 
 V. HawJcins, 16 Q. B. 321 ; 15 Jur. 746 ; 20 L. J. Q. B. 
 313; Cook and another v. Wildes, 5 E. & B. 340; 24 
 L. J. Q. B. 367 ; 1 Jur. N. S. 610; 3 C. L. E. 1090 ; 
 Clark V. Mohjneux (C. A.), 3 Q. B. D. 237 ; 47 L. J. 
 Q. B. 230 ; 26 W. \l. 104 ; 37 L. T. 094 ; 14 Cox, C. C. 
 1 ; ChiUingivorth v. Grimhle (C. A.), Times, for Nov. 7th, 
 1877.) And the plaintiff must prove express malice by 
 some evidence besides that which merely proves the 
 falsity of the statement. (Cauljield v. Whitiuorth, 16 
 W. E. 936; 18 L. T. 527.) That the defendant was 
 mistaken in the words he spoke confidentially is, taken 
 alone, no evidence of malice. This is so also in America ; 
 see Leivis and Herrick v. Chapman (Selden, J.), 2 Smith
 
 270 MALICE. 
 
 (IG N. Y. R.)^ 3G9 ; Vandersee v. McGregor, 12 Wend. 
 54G ; Fowles y. i?o?i'e/i, 3 Tiffany (30 1^. Y. E.) 20. 
 
 Malice may be proved by some extrinsic evidence of 
 ill-feeling, or personal hostility between plain tiff and 
 defendant ; such as threats by defendant that he would 
 rid the town of the plaintiff' {Blagg v. Stiirt, 10 Q. B. 
 904; 11 Jur. 101 ; 10 L. J. Q. 13. 39); former libels 
 or slanders on the plaintiff, &c. Such evidence must 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 pub- 
 lisher, had a spite against the plaintiff, is of coui'se in- 
 admissible. [RohertsoR v. Wglde, 2 Moo. & Eob. 101 ; 
 Clark \. Netosmn, 1 Ex. 131, 139; Carmichael y. Water- 
 ford and Lmerick Ry. Co., 13 Ir. L. E. 313.) But the 
 plaintiff is not bound to prove malice by extrinsic 
 evidence. {Wrights. Woodgatc, 2 C. M. & E. 573 ; 1 Tyr. 
 & G. 12 ; 1 Gale, 329 ; ) he may rely on the words of the 
 libel itself and on the circumstances attending its pub- 
 lication, as aff'ording evidence of malice ; or in case of 
 slander on the exaggerated language used, and on the 
 fact that third persons were present. 
 
 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. 
 {SomcrviUe v. Haivldm, 10 C. B. 590 ; 20 L. J. C. P. 
 131 ; 15 Jur. 450; Harris v. Thompson-, 13 C. B. 333.) 
 Thus, if the only evidence of malice be the terms of the 
 libel itself in reference to an act of the plaintiff's, and 
 that act was in its nature equivocal, and would bear a 
 construction compatible with hona fides in the defendant, 
 then there is no evidence of malice to go to the jiuy.
 
 EXTRINSIC EVIDENCE. 271 
 
 {Sjnll y. Maule, L. E. 4 Ex. 232 ; 38 L. J. Ex. 138 ; 17 
 W. E. 805 ; 20 L. T. 675.) 
 
 A mere mistake imiocently made through excusable 
 iuadyertence cannot in any case be evidence of malice. 
 {Harrison v. Bush, 5 E. & B. 350 ; 1 Jur. K S. 846 ; 25 
 L. J. Q. B. 25 ; Brett v. Watson, 20 W. E. 723 ; Ker- 
 shaw Y. Baileij, 1 Ex. 743; 17 L. J. Ex. 129 ; JScarlly. 
 Dixon, 4 F. & F. 250 ; Pater v. BaJcer, 3 C. B. 831 ; 
 16 L.J. C. P. 124; lljur. 370.) 
 
 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 formerly been in the plaintiff's 
 employ, and that plaintiff had been compelled to dismiss 
 him for misconduct, &c. &c. 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 inadmissible 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 t-hat point to the existence of any such 
 ill-feeling at any date, are evidence admissible for what 
 they are worth. In fact, whenever the state of a 
 person's mind on a j^articular occasion is in issue, 
 everything that can tln^ow any light on the state of his 
 mind then is admissible, although it happened on some
 
 272 MALICE. 
 
 other occasion. (See R. v. Francis, L. E. 2 C. C. E. 128 ; 
 and Blalce v. Albion Assurance Socictij, 4 C. P. D. 94 ; 
 48 L. J. a P. 169 ; 27 W. E. 321 ; 40 L. T. 211.) 
 
 Thus any other Avords written or sjooken by the de- 
 fendant of the plaintiff, either before or after those sued 
 on, or eyen after the commencement of the action, are 
 admissible to show the animus of the defendant ; and for 
 this pui-pose 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. Le- 
 maitre, 5 M. & Gr. 700 ; 12 L. J. Q. B. 253 ; 7 Jur. 
 748 ; 6 Scott, :N'. E. 607 ; MeacU\ DauVujnij, Peake, 168.) 
 Such other words need not be connected Avith or refer to 
 the libel or slander sued on ; provided they in any Avay 
 tend to show malice in defendant's mind at the time of 
 publication. {Barrett v. Long, 3 H. L. C. 395 ; 7 Ir. L. E. 
 439 ; 8 Ir. L. E. 331.) 
 
 And not only are such other words admissible in 
 evidence, but also all circumstances attending their pub- 
 lication, the mode and extent of their repetition, &c. ; 
 the more the evidence approaches proof of a systematic 
 practice of libelling the plaintiff, the more convincing it 
 will be. {Bond \. Douglas, 7 C. & P. 626 ; Barrett v. 
 Long, 3 H. L. C. p. 414.) The jmyno doubt should be 
 told, Avhenever 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 separate action. 
 {Pearson v. Lemaitre, supra) ; but the omission by the 
 Judge to give such a caution will not amount to a mis- 
 direction. {Darbg v. Ouseleg, 1 H. & IS". 1 ; 25 L. J. 
 Ex. 227; 2 Jur. X. S. 497.) But the defendant is 
 always at liberty to prove the truth of such other words 
 so given in evidence ; for he could not ^^lead a justifies-
 
 PREVIOUS LIBELS. 273 
 
 tion as to tlicm, as tliey were not set out ou the record. 
 {Stuart Y. Lovcll, 2 Stark. 93; Warne v. Chndivcll, 2 
 Stark. 457.) 
 
 It must be remembered that this evidence of former or sub- 
 sequent defamation is only admissible to determine quo animo 
 the words sued on were publislied ; that is, they are only 
 admissible when malice in fact is in issue. If there is no 
 question of malice, no such other libels would be admissible, 
 unless they had immediate reference to the libel sued on ; and 
 even then it would be better that they should be set out in the 
 statement of claim. Finiierty v. Tipper, 2 Camp. 72 ; Stuart 
 V. Lovell, 2 Stark. 93 ; Defries v. Davis, 7 C. & P. 112, For 
 such other libels are clearly independent substantive causes of 
 action, and should not be used unfairly 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. Ornshy, 1 M. & 
 Rob. 455 ; Symmons v. Blake, ib. 477 ; but these cases arc 
 expressly overruled, or explained away by Tindal, C.J., in 5 M. 
 & Gr. 719, 720. And see the remurks of Lord EUenborough 
 in Rudell v. Macquister, 1 Camp. 49, n. ; and of Jervis, C.J., 
 in Camfield v. Bird, 3 C. & Kir. 56. And it is now clear law 
 that whenever the intention of the defendant is equivocal, that 
 is, whenever the question of malice or hoiui fides is pi'operly 
 about to be left to the jury, evidence of any previous or subse- 
 quent libel is admissible, 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. Symmons v. Blake, 1 M. & 
 Rob. 477 ; Jachson v. Adams, 2 Scott, 599. See also Charlter 
 V. Barret, Peake, 32 ; Lee v. Huson, Peake, 223 ; Jachson v. 
 Adams, 2 Scott, 599, The law is the same in America, 
 Fowles V. Boiven, 3 Tiffany (30 N. Y. Tl.) 20. 
 
 So if the dofcndaiit reasserts the libel in numbers of 
 his periodical appearing after the commencement of the 
 action {Chuhh v. Westtei/^ G C. & P. 43G) ; or in private 
 letters -written after action (Pr arson v. Lemaitre^ 5 M. &
 
 274 MALICE. 
 
 Gr. 700) ; or if the defendant continues to sell copies of 
 the libel at his shop up to two days before the trial 
 {Plunkctt V. Cohhett, 5 Esp. 136 ; Barivell v. Adkins, 2 
 Scott, N. E. 11 ; 1 M. & Gr. 807) ; these facts are ad- 
 missible as evidence of deliberate malice, though no 
 damages can be given in respect of them. A plea of 
 justification may be such a reassertion of the libel or 
 slander, l^o doubt where the words are privileged, 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 ; CaulfieldY. 
 W/dtivorth, IQ W. E. 936; 18 L. T. 527; Brooke v. 
 AvriHon, 42 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 Avill neither abandon the plea, nor give any 
 evidence in support of it, thus obstinately persisting in 
 the charge to the very last without any sufficient reason, 
 this alone may be sufficient evidence of malice. ( Wanvick 
 V. Foulkes^ 12 M. & W. 508 ; Simpson v. Rohinson^ 12 
 Q. B. 513; 18 L.J. Q. B. 73.) 
 
 The mere fact that the words are now proved or ad- 
 mitted 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 publica- 
 tion. {Fountain v. Boodle^ 3 Q. B. 5 ; Caidfield v. ^YMt- 
 worih, 16 W. E. 936 ; 18 L. T. 527.) So if a false and 
 groundless charge be made against the plaintiff, on a 
 privileged occasion, but without reasonable or probable 
 cause, this may be left to the jury, if there be any other 
 circumstance suggesting malice [Padmore v. Lawrence^ 
 11 A. & E. 380); but by itself, it is no evidence of 
 malice. {Clark y. Mohjneux, 3 Q. B. D. (C. A.) 237.) 
 As a general rule, therefore, the plaintiff cannot give any
 
 FALSITY. 275 
 
 evidence of the falsity of the charge, unless a justifica- 
 tion be pleaded ; for such evidence is no proof of malice, 
 and the truth of the charge is not in issue. [Brown v. 
 Croome, 2 Stark. 297 ; Cornwall v. Richardson, 1 E. & M. 
 305 ; Brine v. Bazalgdte, 3 Exch. 692; 18 L. J. Ex. 348.) 
 But where ^o, 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 com- 
 plaints of misconduct were made against the plaintiff 
 whilst he was in defendant's service ; such evidence 
 tending to show that defendant at the time he gave 
 plaintiff a bad character, knew that what he was writing- 
 was untrue, and that is proof positive of malice. 
 {Fountain v. Boodle, 3 Q. B. 5 ; 2 G. & D. 455 ; Rogers 
 V. >SV/- Gervas Clifton, 3 B. & P. 587, ante, p. 202.) 
 
 lUustTations. 
 
 Where a master has given a servant a bad character, the circumstances 
 under which they parted, any expressions of illwill uttered by the master 
 then or subsequently, the fact that the master never complained of the 
 2ilaintift"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. 
 
 Kdly V. Partinyton, 4 B. & Adol. 700 ; 2 N. & M. 460. 
 
 Jackson v. HojijJerton, 16 C. B. N. S. 829 ; 12 W. K. 913 ; 10 
 
 L. T. 529 ; ante, p. 268. 
 Rogers v. Sir Gervas Clifton, 3 B. & P. 387 ; ante, p. 202, 
 Defendant subsequently to the slander, admitted that there had been a 
 dispute between himself and the plaintiff prior to the slander about a sum 
 (if ^20 which the plaintiff claimed from the defendant. At the trial, also, 
 tlie plaiutifF offered to accept an ai)olog3^ and a verdict for nominal damages, 
 if defendant would withdraw his plea of justification. The defendant 
 ii'f'u.-ed to witlidraw the ])lea, yet did not attemj)t to j^rove it. IMd ample 
 evidence of malice. Damages £'40. 
 
 SimiKon v. lloUnson, 12 Q. B. 511 ; 18 L. J. Q. B. 73 ; 13 
 Jur. 187. 
 
 T 2
 
 276 MALICE. 
 
 If it be proved that any material part of a charge is false [and that the 
 defendant knew it was false at the time he made the imputation], or if the 
 charge he made to an official who has no jurisdiction over the matter, this 
 is evidence of malice. 
 
 Bla(j(j V. iitm% 10 Q. B. 899 ; 16 L. J, Q. B. 39 ; 11 Jur. 101 ; 
 
 8 L. T. (Old S.), 135 ; as explained by Williams, J., 13 C. B. 
 
 352. 
 
 It is somi, evidence of malice that plaintiff and defendant are rivals in 
 
 trade, or that they comi:)eted together for some post, and plaintiff succeeded, 
 
 and that then defendant, being disapjpointed, wrote the libel. 
 
 See Warman v. Kine, 1 Jur. 820 ; Sviith v. Mathews, 1 Moo. & 
 Rob. 151. 
 The defendant wrote a letter to be published in the newspaper. The 
 careful editor struck out all the more outrageous passages, and published 
 the remainder. The defendant's manuscript was admitted in evidence, and 
 the obliterated passages read to the jury, to show the animus of the 
 defendant. 
 
 Tari^lcy v. Blaby, 2 Scott, 642 ; 2 Bing. N. C. 437 ; 1 Hodges, 
 414. 
 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 Exch. D. 53 ; 49 L. J. Q. B. 120 ; 28 
 W. R. 87 ; 41 L. T. 782. 
 A long practice by the defendant of libelling the plaintiff is cogent 
 evidence of maHce ; therefore other libels of various dates, some more than 
 six years old, some published shortly before that sued on, are all admissible 
 to show that the publication of the culminating libel sued on was malicious 
 and not inadvertent. 
 
 Barrett v. Long, 3 H. L. C. 395 ; 7 Ir. L. R. 439 ; 8 Ir. L. R. 331. 
 A libel having ajjpeared in a newspaper, subsequent articles in later 
 numbers of the same newspajDer, alluding to the action and affirming the 
 truth of the p)rior libel, are admissible as evidence of malice. 
 Chubb v. Westley, 6 C. & P. 436. 
 Barwdl v. Adkiyis, 1 M. & Gr. 807 ; 2 Sc. N. R. 11. 
 Mead v. Daubigny, Peake, 168. 
 So if there be subsequent insertions of substantially the same libel in 
 other newspapers. 
 
 Delegal 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, 
 X. R. 607 ; 12 L. J. Q. B. 253 ; 7 Jur. 748 ; a letter was admitted which 
 liad been written subsequently to the commencement of the action, and 
 fourteen months after the libel complained of. In McLeod v. TVakley, 3 
 C. & P. 311, Lord Tenterden admitted a paragraph published only two 
 days before the trial. 
 
 Where the defendant verbally accused plaintiff of perjury, evidence that
 
 INTRINSIC EVIDENCE. 277 
 
 subsequently 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. Hunifplirey, 2 Camp. 73, n. 
 
 And see Finden v. JVestlake, Moo. & Malkin, 461. 
 In an action for libel and slander on privileged occasions, the only 
 evidence of malice was some vague abuse of tlie plaintiff, uttered by the 
 defendant on the Saturday before the trial in a public-house at Rye. Such 
 aljuse had no reference to the slander or the libel or to the action. Held, 
 that this evidence w\as 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. 
 
 Hemmiyujs v. Gasson, E. B. & E. 346 ; 27 L. J. Q. B. 252 ; 4 
 Jur. N. S. 834. 
 
 II. Evidence of malice derived from the mode and extent of 
 pullication^ the terms employed^ ^c. 
 
 The plaintiff is not restricted to extrinsic evidence of 
 malice ; he may rely on the words of the libel itself and 
 the cii'cumstances attending its publication ; or in the 
 case of slander npon the exaggerated language used, on 
 the fact that thii-d persons were present who were not 
 concerned in the matter, &c. &c. The fact that the de- 
 fendant was mistaken in the information he gave is, as 
 we have seen, no evidence of malice. 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 lona fides : Did the 
 defendant honestly believe that he had a duty to perform 
 in the matter, and act under a sense of that dut}' ? That 
 other men would not have so acted is immaterial. That 
 shrewder men would have seen through the tangled web 
 of facts, and have discovered that things were not as
 
 278 MALICE. 
 
 tlicy seemed, i>s absolutely immaterial. The question is, 
 Did the actual defendant honestly believe what he said ? 
 not whether a reasonable man so placed would have be- 
 lieved 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 de- 
 fective. {Per Cotton, L. J., il). 249.) " People believe 
 um-easonable things lond fide,''"' says O'Hagan, J., in 
 Fltzejerald v. Camphell^ 15 L. T. 75. Similarly, the 
 fact that he relied upon hearsay evidence without seek- 
 ing primary evidence is immaterial. [Per Lord West- 
 bury in Lister v. Perrijman^ L. E. 4 H. L. 521 ; 
 overruling (Exch. Ch.) L. E. 3 Exch. 197.) Men of 
 business habitually act upon hearsay 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 som^ce 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 will 
 be 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 knowingly makes a false charge against his 
 neighbour cannot claim privilege. It can never be liis 
 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 con- 
 sidered as malicious as deliberate falsehood. ( Clarli v. 
 Molyneux, 3 Q. B. D. 247 ; 47 L. J. Q. B. 230 ; 26 W. 
 E. 104 ; 37 L. T. 694.) And of course if in miting or 
 speaking on a privileged occasion, the defendant breaks 
 out into irrelevant charges against the plaintiff, wholly
 
 EXPRESSIONS IN EXCESS. 279 
 
 unconnected witli the occasion whence the priyilege is 
 deriyed, such excess jfvill be evrdence_ of malice ; or, 
 speaking more accurately, such in-elevant charges are 
 wholly uniDrivileged, and no question of actual malice 
 arises as to them ; imlcss defendant proves them true 
 the verdict must go against him. [Iluniicy v. Ward, 6 
 C. B. N. S. 514 ; 6 Jur. ^. S. 18 ; Senior v. MecUand, 4 
 Jm\ (N. S.) 1039 ; Picton v. Jachnmi, 4 C. & P. 257 ; 
 Simmonds v. Dunne, Ir. E. 5 C. L. 358.) One part of a 
 letter may be privileged ; other parts of the same letter 
 unprivileged. ( Warren v. Warren, 1 C. M. & E. 251 ; 
 4 Tyr. 850.) And where the occasion is privileged, 
 and it is clear that the defendant believed in the truth 
 of the communication he made, and was acting under a 
 sense of duty, the plaintiff's counsel mtiy still rely upon 
 the words employed, and the mamier and mode of publica- 
 tion, as evidence of malice. A man honestly indignant 
 may often be led away into exaggerated or unwarrant- 
 able expressions ; or he may forget where and in whose 
 presence he is speaking, or how and to whom his wi'iting 
 may be published. Clearly this is but faint evidence of 
 actual malice; the jury_ win gpiiernl1;^-j wd£m_j gliglif 
 excess of righteous zeal. But the pnoT^quesHbn is 
 aIwaysT~"T[s* there any evidence of malice to go to 
 the jury ? " It is much better for the defendant, if 
 the judge Avill stop the case, as he ought to do if there 
 be no more than a scintilla of evidence for them. But it 
 is very difficult to say beforehand what will be deemed a 
 mere scintilla, what more than a scintilla, in any given 
 case. The same piece of evidence may make different 
 impressions on the minds of different judges.
 
 28o MALICE. 
 
 (i.) Where the expressions employed are exaggerated and 
 univarrantahlc ; hut there is no other evidence of malice, 
 
 " It is sometimes difficult to determine when defama- 
 tory words in a letter may be considered as hy themselves 
 affording evidence of malice." [Per Bramwell, L. J., 3 
 Q. B. D. 245.) But tlie test appears 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 de- 
 fendant might have honestly and bond fide employed 
 under the cii'cumstances ? If so the judge should stop 
 the case. But if the expressions employed still appear 
 uncalled for and in excess of the occasion, though taken 
 in connection with what was in defendant's mind at the 
 time, then it would seem that the defendant must have 
 spoken recklessly or angrily, without weighing his words, 
 and that is some evidence of malice to go to the jury. 
 {Clark V. Molijneux, 3 Q. B. D. 247.) Thus, if the 
 plaintiff's conduct was equivocal, and might honestly 
 and l)ond fide be supposed by the defendant to be such 
 as he described it, the mere fact that he used strong 
 words in so describing it, is no evidence of malice to go 
 to the jury, [^plll v. Maule, Exch. Ch., L. E. 4 Exch. 
 232 ; 17 W. B. 805 ; 20 L. T. 675 ; 38 L. J. Ex. 138.) 
 
 But where the language used in a libel is " much too 
 violent for the occasion and circumstances to which it is 
 applied ; " or " utterly beyond and disproportionate to 
 the facts ; " or where improjDcr motives are unnecessarily 
 imj)uted, there is evidence of malice to go to the jniy. 
 {Fryer v. Klnnersley, 15 C. B. (N. S.) 422 ; 33 L. J. 
 (C.P.) 96; 12 W. E. 155; 9 L. T. 415; Gilpin v. 
 Fowler, 9 Ex. 615 ; 23 L. J. Ex. 152 ; 18 Jur. 293.) 
 
 And this is so especially in cases where a rumoiu- 
 prejudicial to the plaintiff has reached the defendant,
 
 EX A GGERA TIONS. 28 1 
 
 which he feels it his duty to reijort to those concernecl, 
 but in rej^ortiug it, he does not state the rumour as it 
 reached him, but gives an exaggerated or highly coloured 
 version of it. ^''Inimici famam non ita, ut nata est^feruntP 
 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 iDrotection which the laAv throws 
 over privileged communications." {Per Sir Eobert Collier, 
 L. E. 4 P. C. 508.) " The particular expressions ought 
 not to be too strictly scrutinized, provided the intention 
 of the defendant was good." (P(?r Alderson, B., in Wood- 
 zuard v. Lander', 6 C. & P. 550. And see Taylor v. 
 Hawkins^ 16 Q. B. 308 ; RucJdei/ v. Kiernan, 7 Ir. C. L. 
 E. 75.) " That the expressions are angry is not enough ; 
 the jury must go fm-ther and see that they are malicious." 
 {Per Tindal, C.J., in Shipley v. Todhunter, 7 C. & P. 680.) 
 
 Illustrations. 
 
 Defendant clianged his printer, and on a j)rivileged occasion stated in 
 writing, as liis reason for so doing, that to continue to pay the cliarges 
 made by his former printer, the plaintiff, vrould 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 jury. Damages £50. 
 
 Coohe v. Wildes, 5 E. & B. 328 ; 24 L. J. Q. B. 367 ; 1 Jur. 
 
 N. S. 610 ; 3 C. L. E. 1090. 
 O'Donorjhue v. Hussey, Ir. E. 5 C. L. 124. 
 Plaintiff sued defendant on a bond; defendant in public, but on a 
 privileged occasion, denounced tlie plaiiitiif for attempting to extort money 
 from him. Held, that the words were in excess of the occasion. 
 
 Robertson v. McDoiujall, 4 Bing. 670 ; 1 M. k P. 692 ; 3 C. & P. 
 
 259. 
 See Tuson v. Evans, 12 A. & E. 733, ante, p. 227. 
 While the defendant was engaged in winding up the affairs of the plain- 
 tiff's firm, of which defendant was also a creditor, the plaintiff took from 
 the cash-box a parcel of bills to the amount of i;i264. Thereupon the 
 defendant wrote to another creditor of the firm that the conduct of the
 
 282 MALICE. 
 
 plaintiff " has been most disgraceful and dishonest, and the result has been 
 to diminish materially the available assets of the estate." Hdd. 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 honu 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. 
 
 Si)ill V. Maule (Exch. Ch.) ; L. E. 4 Ex. 232 ; 38 L. J. Ex. 138 
 17 W. R. 805 ; 20 L. T. 675. 
 The defendant tendered to Brown at Crickhowell two £l notes on the 
 plaintiffs' 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 plaintiff's' bank had stop^jed, and that nobody would take tlieir bills. 
 Held, that this exaggeration of the report was some evidence of malice to go 
 to the jury. 
 
 Bromage v. Prosser, 4 B. & Cr. 247 ; 6 U. & R. 296 ; 1 C. & P. 
 475. 
 
 And see Senior v. Medland, 4 Jur. (N. S.) 1039. 
 A gentleman told the second master of a school that he had seen one of 
 the under-masters of the school on one occasion coming home at night " under 
 the influence of drink," and desired him to acquaint the authorities with the 
 fact. The second master subsequently stated to the governors that it was 
 notorious that the r;nder-master came home "almost habitually in a state of 
 intoxication." There was no other e\'idence of malice. Held, that the Lord 
 Chief Justice was right in not withdrawing the case from the jury. 
 
 Hume V. Marshall, Times for November 26th, 1877. 
 
 (ii.) As to tlie method of communication employed. 
 
 If the mode and extent of a privileged publication be 
 more injurious to the plaintift: than necessary, this may 
 be evidence of malice in the publisher. Though the 
 words themselves would be privileged if addressed only 
 to the few individuals concerned, yet the privilege may 
 be lost if the defendant deliberately chooses to publish 
 them to the general public, or to any one who has no 
 corresponding interest in the communication. Letters as 
 to plaintiff's private affairs should not be published in 
 the newspapers, however meritorious the wi'iter's motive 
 may be. Confidential communications should not be 
 shouted across the street for all the world to hear.
 
 UNDUE PUBLICITY. 283 
 
 {Wilson V. Collins, 5 C. & P. 373.) Defamatory remarks, 
 if wi'itten at all, should bo sent in a private letter pro- 
 perly sealed and fastened up ; not Avi-itten on a postcard, 
 or sent by telegraph ; for two strangers at least read 
 every telegram ; many more most post-cards. ( Williamson 
 V. Freer, L. R. 9 C. P. 393; 43 L. J. C. P. 161 ; Whit- 
 field Y. S. E. Rfj. Co., E. P. & E. 115 ; Robinson v. 
 Jones, 4 L. R. Jr. 391.) There is no privilege attaching 
 even to correct and accurate reports of public meetings. 
 {Davison v. Duncan, 7 E. & B. 231; 26 L. J. Q. B. 104 ; 
 Popham V. PicJchurn, 7 H. & N. 897 ; 31 L. J. Ex. 133 ; 
 Purcell V. ^oivlcr, 2 C. P. D. 215 ; 46 L. J. C. P. 308 ; 
 25 W. P. 362 ; 36 L. T. 416.) But where printing a 
 report is the usual and necessary method of commimi- 
 cation between the directors and shareholders, the 
 privilege will not be lost merely' because the compositors 
 and jom-neymen printers employed were not shareholders. 
 {Laivless v. Anglo-Egyptian Cotton and Oil Co., L. E. 4 
 Q. B. 262.) So with an advertisement inserted in a news- 
 paper defamatory of the plaintiff ; if such advertisement 
 be necessary to protect the defendant's interests, or if ad- 
 vertising 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 ad- 
 vertisement which did not contain the words defamatory 
 of the plaintiff, then the extent given to the announce- 
 ment is evidence of malice to go to the jmy. {Bro?un v. 
 Croome, 2 Stark. 297 ; and Lag v. Lawson, 4 A. & E. 
 795 ; overruling, or at least explaining, Delang v. Jones, 
 4 Esp. 191.) The law is the same as to posting libellous 
 placards {Cheese v. .Scales, 10 M. & W. 488); or 
 having a libellous notice cried by the town crier. 
 {Woodardx. Dowsing, 2 Man. & Ry. 74.)
 
 284 MALICE. 
 
 So with a i^iiyilcgccl oral communication, it is im- 
 portant to observe who is present at the time it is made. 
 A desii'G shonkl be shown to avoid all unnecessary 
 publicity. It is true that the accidental 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 jiroved that defendant purposely chose 
 a time for makine: the communication when others were 
 b}', whom he knew would act upon it, this may be 8ome 
 evidence of malice. The question for the jury in such 
 cases is : Was the charge against the plaintiff made hona 
 fide, and, if so, was it made before more persons or in 
 stronger language than necessary ? {Fadmore v. Lavj- 
 rcncc, 11 A. & E. 380; Fotvler and wife v. Homer ^ 3 
 Camp. 294.) 
 
 Illustrations. 
 
 The defendant in a petition to the Hoiise of Commons charged the plain- 
 tiff with extortion and oppression in his office of vicar-general 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 ot 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 print- 
 ing was a publication to the printers and compositors, still it was the usual 
 course of proceeding in Parliament ; and it was not so great a publication 
 as to have so many copies transcribed by several clerks. 
 
 Lale v. Kiwj, 1 Lev. 240 ; 1 Saund. 131 ; Sid. 414 ; 1 Mod. 58. 
 
 See Lmvless v. Anglo-Eyi/jHian Oottoit and Oil Co., Limited, L. E. 
 
 4 Q. B. 262 ; 10 B. & S. 226 ; 38 L. J. Q. B. 129 ; 17 W. R. 
 
 498, ante, p. 242. 
 
 If libellous matter, which would have been privileged if sent in a sealed 
 
 letter, be transmitted unnecessarily by telegraph, the privilege is thereby 
 
 lost. 
 
 Williamson v. Freer, L. R. 9 C. P. 393 ; 43 L. J. C. P. 161 ; 22 
 W. R. 878 ; 30 L. T. 332. 
 An Irisli 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 wliat is written thereon. 
 
 Lobinson v. Jones, 4 L. R. Ir. 391.
 
 UNDUE PUBLICITY. 285 
 
 Defendant having lost certain bills of exchange, published a handbill, 
 offering a reward for their recovery, and adding that he beUeved they had 
 been embezzled by his clerk. His clerk at that time still attended regularly 
 at his office. Keld, that the concluding words of the handbill were quite 
 unnecessary to defendant's oljject, and were a gratuitous libel on the 
 plaintiff. Damages J200. 
 
 Finden v. Wcstlake, Moo. & Malk. 4G1. 
 The justices were al^out to swear in the phuntitf us a paid constable, when 
 defendant, a parishioner, came forward and stated that the plainiitf was an 
 improper 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 attaching to such bona fide remark. 
 
 Kershaio v. Baileij, 1 Ex. 743 ; 17 L. J. Ex. 129. 
 Where a master about to dismiss his servant for dishonesty calls in a 
 friend to hear what passes, the j)resence of such third party will not destroy 
 the privilege. 
 
 Taylor v. Hawldns, 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur, 
 746. 
 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 rol )bing 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 com- 
 munications as respected the absent parties, as well as those to whom they 
 were respectively made. 
 
 Manbj v. JViU ) 1-8 C. B. .544 ; 25 L. J. C. P. 294 ; 2 Jur. 
 East mead v. JFitt } N. S. 1004. 
 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 against one of the directors. Held, that the 
 
 privilege was lost thereby. 
 
 Parsons v. Surgey, 4 F. & F. 247. 
 And see Davis v. Cutbush and others, 1 F. & F. 487. 
 Defendant accused the plaintiff, in the presence of a third person, of steal- 
 ing his wife's brooch ; plaintiff Avished to be searched ; defendant repeated 
 the accusation to two women, who searched the plaintiff and found nothing. 
 Subse(|ueutly, it was discovered that defendant's wife had left the brooch 
 at a friend's liouse. Held, that the mere publication to the two women did 
 not destroy the privilege attaching to charges, if made bona fide ; but that 
 all the circumstances should have been left to tlie jury. 
 
 Padmore v. Lawrence, 11 A. & E. 380 ; 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. K. 470.
 
 286 MALICE. 
 
 T]ie defendant ^vas a customer at the plaintiff's shop, and had occasion to 
 complain of what he considered fraud and dishonesty in the plaintiif s con- 
 duct of his business ; but instead of remonstrating quietly with him, the 
 defendant stood outside the shop-door and spoke so loud as to be heard by 
 every one passing down the street. The language he employed also -was 
 stronger than the occasion warranted. Held that there was evidence of 
 malice to go to the jury. Damages 40.s. 
 
 " OMxj V. Lord Geo. Paulef, 4 F. & F. 1009. 
 And see JFilson v. Collins, 5 C. & P. 373. 
 
 The mere fact that the defendant volunteered the in- 
 formation is, when it stands alone, no evidence of malice ; 
 but if there be any other circumstances raising a pre- 
 sumption of malice, then it may weigh with the jury. 
 In fact, if the judge and jiuy agree in thinking the de- 
 fendant's interference was officious and uncalled for, the 
 privilege is lost, and no inquiry need be made as to the 
 existence of express malice. 
 
 In BrooJcs v. Blanshard, 1 Cr. & M. 779, 3 Tyrw. 844, 
 Lord Lyndlmrst, C. B., says, " It is not merely because 
 a communication is confidential that it is privileged, if 
 it is volunteered by the party making it." But in every 
 case, whether volunteered or not, the question is, Was 
 the communication faiily warranted by the exigency of 
 the occasion ? If so, the jury should find for the de- 
 fendant, unless there be some other evidence of malice. 
 Xo doubt it Avill often require a greater exigency to 
 warrant the defendant in volunteering the information 
 than in merely answering a confidential inquiry. But 
 still in all cases where the duty to speak is clear, it is 
 defendant's duty to go and tell the person concerned, if 
 he does not come to the defendant. For it may well be 
 that he has no suspicions, and will never come and in- 
 quire. But in cases where there can be any doubt as to 
 defendant's duty to speak, there the fact that the de- 
 fendant took the initiative may tell against him. Thus 
 it is usual for a former master to give the character of a
 
 COMMUNICATIONS VOLUNTEERED. 287 
 
 servant on application^ and not before. Hence if a master 
 hears a discharged servant is applying for a pLace at M.'s 
 house, and "smtes at once to M. to give the servant a 
 bad character, the fact that the communication was un- 
 called 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 imparting it unasked will be com- 
 mented on as a proof of malice, and if there be any other 
 evidence of malice, however slight, may materially in- 
 fluence the verdict. But if there be no other evidence 
 of malice, the communication is still privileged. [Patti- 
 son V. Jones, 8 E. & C. 578 ; Foivles v. Bowen, 3 Tiffany 
 (30 IN". Y. E.) 20; and see other cases cited, ante, pp. 
 202, 7, 9. The presumption in favour of the defendant 
 arising from the privileged occasion remains, till it is re- 
 butted by evidence of express malice ; and evidence 
 merely equivocal, that is, equally consistent with malice 
 or bona fides, will do nothing towards rebutting the pre- 
 sumption. Also, when a communication is volunteered 
 great care should be taken as to the person to whom it is 
 addressed. No privilege attaches to a communication 
 unnecessarily made to a person wholly unconcerned 
 therewith. Thus in seeking redress for a grievance be 
 sure to invoke the aid of some one who has some kind of 
 juiisdiction in the matter. For though a bond fide 
 mistake as to the respective functions of various state 
 officials may easily be made by an uneducated or even 
 an educated man, and will not therefore of itself be 
 evidence of malice, still a statement volunteered to some 
 I one who has no possible duty or power to remedy the 
 abuse complained of, will be clearly "in excess of the 
 occasion." (See Scarll v. Dixon, 4 F. & F. 250 ; Harrison 
 V. Bush, 5 E. & B. 344 ; 25 L. J. Q. B. 25 ; Fairmun v. 
 Ives, 5 B. & Aid. G42, ante, p. 224.)
 
 j88 malice. 
 
 Illustrations. 
 
 Tlie defendant, the tenant cd' a farm, required some repairs to be done at 
 liis liovise ; tlie landlord's agent sent up two workmen, tbe plaintiff and 
 Taylor. 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 Taylor 
 together, and charged the plaintiff" with breaking open the cellar-dour, 
 getting drunk, and spoiling the job. He repeated this charge later in the 
 same day to Tajdor alone in the absence of the plaintiff", and also to the 
 landlord's agent. Hdcl, that the communication to the landloid's agent was 
 clearly privileged as he was the plaintiff"'s employer ; that the statement 
 made to the plaintiff" in Taylor's presence was also privileged, if made 
 honestly and hond fide ; and that the circumstance of its 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, whether the defen- 
 dant acted hond fide, or was influenced by malicious motives. But, that the 
 statement to Taylor, in the absence of the plaintiff, was unauthorized and 
 officious, and therefore not protected, although made in the belief of its 
 truth, if it were in point of fact false. 
 
 Toogood v. Spyring, 1 Cr. M. & E. 181 ; 4 Tyr. 582. 
 
 A lieutenant in the navy was appointed by the Government agent or 
 superintendent on board a transport shi]), the Juiiiter. He wrote a letter to 
 the secretary at Lloyd's imputing misconduct and incapacity to the [ilaintift", 
 the master of the Jupittr. This was held altogether unprivileged ; the 
 information should have been given to the Government alone, Ijy whom the 
 defendant was employed. 
 
 Hancood v. Green, 3 C. & P. 141.
 
 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 de- 
 fendant's conduct. 
 
 Special Damages are such as the law will not presume 
 to haA'e been suffered, from the nature of the words 
 themselves ; they must therefore be specially claimed on 
 the pleadings, and evidence of them must be given at 
 the trial. Such damages depend upon the special cir- 
 cumstances of the case, upon the defendant's position, 
 upon the conduct of third persons, &c. &c. Very 
 probably they would not have been incurred, had the 
 same words been spoken on another occasion, or to 
 different hearers. 
 
 But in some cases special damage is also a neces- 
 sary element in the cause of action. When on the 
 face of them the words used by the plaintiff clearly 
 must have injured the plaintiff's reputation, they are 
 said to be actionable ji;^r se ; and the plaintiff may 
 recover a verdict for a substantial amount, without 
 giving any evidence of actual pecuniary loss. But 
 where the Avords arc not on the face of them such as the 
 courts will presume to be necessarily prejudicial to the
 
 290 DAMAGES. 
 
 IDlaintiff's reputation, there evidence must be given to 
 show that in fact some appreciable injury has in this 
 case followed from their use. In short, where the words 
 are not actionable jjer se, special damage must be alleged 
 and proved, or the plaintiff will be nonsuited. The 
 injury to the plaintiff'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. — Evidence for the plaintiff in aggravation of 
 damages : — 
 
 (i.) Malice. 
 
 (ii.) Extent of publication, 
 (iii.) Plaintift^'s good character. 
 
 III. — Evidence for the defendant in mitigation of 
 damages : — 
 
 (i.) Apology and amends. 
 
 (ii.) Absence of malice, 
 (iii.) Plaintiff's bad character, 
 (iv.) Provocation given by the plaintiff. 
 
 (v.) Absence of special damage. 
 
 IV. — Special Damage, where the words are not ac- 
 tionable per se. 
 
 '^ 
 
 y. — Special Damage, where the words are actionable 
 
 per se. 
 
 YI. — Eemoteness of damages. -i
 
 GENERAL DAMAGES. 291 
 
 I. — General Damages. 
 
 General Damages are such as the law will presume to 
 be the natural or probable consequence of the de- 
 fendant's conduct. They arise by inference of law; 
 and need not therefore be proved by evidence. Such 
 damages may be recovered wherever the immediate ten- 
 dency of the words is to impair- the plaintiif's reputation, 
 although no actual pecuniary loss has in fact resulted. 
 
 Such general damages will only be presumed where 
 the words are actionable jK»e>- se. If any special damage 
 has also been suffered, it should be set out on the plead- 
 ings ; but, should plaintiff fail in proving it at the trial, 
 he may still of course resort to and recover general 
 damages. {Coolc v. Field ^ 3 Esp. 133 ; Smith v. Thomas, 
 2 Bing. N. C. 372 ; 2 Scott, biQ> ; 4 Dowl. 333 ; 1 
 Hodges, 353; Brouni v. Smith, 13 0. B. 596; 22 
 L. J. C. P. 151 ; IT Jur. 807 ; 1 C. L. E. 4 ; Evans v. 
 Harries, 1 H. & X. 251 ; 26 L. J. Ex. 31.) If one 
 single issue out of many be found in favom- of the 
 plaintiff the jury must proceed to assess damages. 
 {Clement v. Levris, 3 Brod. & B. 297 ; 7 Moore, 200 ; 3 B. 
 & Aid. 702.) 
 
 The amount at which general damages are to be as- 
 sessed 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 verdict is so large as to satisfy the 
 Court that it was perverselj^ in excess or the result of 
 some gross error on a matter of principle ; it must be 
 
 u 2
 
 292 DAMAGES. 
 
 shown that the jury either misconceived the case or 
 acted under the influence of undue motives. In fact, 
 although in theor3% it is the duty of the jury to give 
 such sum only as will fauiy compensate the plaintiff for 
 the injury he has sustained, yet, in practice, juries fre- 
 quently, especially Avhere the defendant has acted with 
 clear and express malice, give vindictive damages, which 
 are clearly meant not so much as a compensation to the 
 plaintiff for his loss, as a punishment to the defendant 
 for his misconduct. And it is, I think, a benefit to the 
 community that a penalty should thus be imposed on an 
 exhibition of spite and ill-will. (See Emhlen v. Mijers, 
 6 H. & N. 54 ; 30 L. J. Exch. 71 ; Bell v. Midland 
 Rij. Co. 10 C. B. K S. 287; 30 L. J. C. P. 273; 9 
 W. E. 612; 4 L. T. 493.) So, again, where the 
 damages awarded appear strangely small, a new trial 
 will not be granted, unless it is clearly sIioa^ti that the 
 jury wholly omitted to take into their consideration some 
 element of damage {FhillipB v. London ^^ iS. W. Ry Co.; 
 4 Q. B. D. 406; 48 L. J. Q. B. 093 ; 27 W. E. 797 ; 40 
 L. T. 813 ; (C. A.) 5 Q. B. D. 78 ; 49 L. J. Q. B. 233 ; 
 28 W. E. 10 ; 41 L. T. 121); or unless the smallness of 
 the amount shows that the jury made a compromise, and 
 did not really try the issues submitted to them. [Falvey 
 V. Stanford, L. E. 10 Q. B. 54; 44 L. J. Q. B. 7 ; 23 
 W. E. 162; 31 L. T. 677; Kelly v. Sherlock, L. E. 1 
 Q. B. 686, 697 ; 35 L. J. Q. B. 209 ; 12 Jui-. K S. 937 ; 
 Forsdike and zvife v. Stone, L. E. 3 C. P. 607 ; 37 L. J. 
 C. P. 301 ; 16 W. E. 976 ; 18 L. T. 722.) 
 
 The jury must assess the damages once for all : no 
 fresh action can be brought for any subsequent damage. 
 (Fitter V. Veal, 12 Mod. 542 ; B. N. P. 7 ; Gregory and 
 another v. Williams, 1 C. & K. 508.) They should 
 therefore take into their consideration ever}- consequence 
 wliich the words used would " have a natural tendency"
 
 GENERAL DAMAGES. 293 
 
 to produce ; but not merely problematical or eventual 
 damages that ma^^ jDossibly happen, or j^ossibly may not. 
 {Per De Grey, C. J., in Onslow v. Home, 3 Wils. 188; 
 2 W. Bl. 753*^; Bayley, B., in Lumhy v. Alldwj, 1 C. & J. 
 305 ; 1 T3T. 217, and see Doyley v. Rolerts, 3 Bing. Is^. 
 C. 835 ; 5 Scott, 40 ; 3 Hodges, 154.) The jury also 
 may faii'ly take into their consideration the rank and 
 position in society of the plaintiff, the mode of publica- 
 tion, the extent of the circulation of the words com- 
 plained of, the fact that the attack was entirely unpro- 
 voked, that the defendant could have easily ascertained 
 that the charge he made was false, &c. 
 
 Even if no evidence be offered by the plaintiff as to 
 damages, the jury are in no way bound to give nominal 
 damages only ; they may read the libel and give such 
 substantial damages as will compensate the plaintiff' for 
 such defamation. (Tripp v. Thomas, 3 B. & C. 427.) 
 And where the Statute of Limitations is relied on as a 
 defence ; but proof is given that one single copy has 
 been sold by the defendant to an agent of the plaintiff 
 within the last few months ; the jmy are not to limit 
 the damages to the injury Avhich the plaintiff may 
 be suj^posed to have incurred from that single publica- 
 tion, but may give general damages for the original 
 dissemination of the libel. [DuJce of BrunsivicJc v. 
 Harmer, 14 Q. B. 185; 19 L. J. Q. B. 20; 14 Jur. 
 110; 3 C. & K. 10.) 
 
 A general loss of business by a trader in consequence 
 of defamation is general damage which the law presumes ; 
 but no particular instances, can be gone into, unless the 
 customers' names be given in the statement of claim, or 
 in the particulars ; for this is special damage, and must 
 therefore be laid specially. [Ashley v. Harrison, Peake, 
 256 ; 1 Esp. 48 ; Delegal v. Hiyhlejj, 5 Scott, 154 ; 8 C. 
 &P. 444; 3 Bing. N. C. 950.)
 
 294 DAMAGES. 
 
 In cases of libel, every one concerned either in writing 
 or pnblisliing the libel, or in cansing or procnring the 
 libel to be written or pnblished, is equally liable for all 
 the damage consequent on that publication. They are 
 all deemed publishers. Thus, if the libel appear in 
 a news23apcr, the proprietor, the editor, the printer, and 
 the author, are all liable to be sued, either separately or 
 together. And that one has been ah*eady sued is no de- 
 fence to an action brought against any of the others in 
 respect of the same libel. [Frescoe v. 'J/c/,y, 2 F. & F. 
 123.) Xor should the fact that other actions are pending 
 for the same libel be taken into consideration by the jury 
 in assessing the damages arising fi'om the publication by 
 the present defendant. (Harrison v. Pearce, 1 F. & F. 
 567 ; 32 L. T. (Old S.) 298.) And there is no contribu- 
 tion between tort-feasors. So that the proprietor of a 
 paper sued jointly Tvith his careless editor or with the 
 actual composer of the libel, cannot compel either of liis 
 co-defendants to recoup him the damages, which he has 
 been compelled to pay the plaintiff. ( Colhurn v. Patmore^ 
 1 C. M. &E. 73; 4 Tyr. 077.) 
 
 But if there be two distinct and separate publications 
 of the same libel, a defendant who was concerned in the 
 first publication, but wholly unconnected with the second, 
 would not be liable for any damages wliich he could proye 
 to have been the consequence of the second publication 
 and in no way due to the first. 
 
 In cases of slander, on the other hand, the defendant 
 is only liable for such damages as result dii'cctly from 
 his o^\Ti utterance. If another chooses to repeat what 
 defendant has said, that is his own conscious and volun- 
 tary act, for the results of which he alone is responsible. 
 
 In former days, it was the rule that if there were several 
 counts on different libels or slanders, and entire damages were
 
 GENERAL DAMAGES. 295 
 
 given, judgment would be arrested, and a venire, tie novo 
 awarded, if a single count proved for any reason defective. In 
 criminal cases the rule has always been the reverse, and the 
 judgment stands if a single count prove good. The judges 
 often expressed a wish that the rule in civil cases was the same 
 as in criminal ; but the authorities to the contrary were too 
 clear and decisive. (Savile v. Jardine, 2 Hen. Bl. 531 ; Holt 
 V. Scholefield, 6 T. R. 694 ; Aiigle v, Alexander, 7 Bing. 119 ; 
 1 Tyr. 9 ; 1 C. & J. 143 ; Day v. Rohinson, 1 A. & E. 554 ; 
 4 N. & M. 884 ; Pemherton v. Colls, 10 Q. B. 401 ; 16 L. J. 
 Q. B. 403; 11 Jur. 1011.) 
 
 It was therefore the duty of the plaintiff's counsel formerly 
 to endeavour to have the damages assessed on each count 
 separately, if he had any doubt as to sufficiency of any particular 
 count. But now declarations and counts are abolished, and I 
 apprehend this rule does not apply to the modern statement 
 of claim ; though as yet there has been no decision on the 
 point. 
 
 The jury in assessing damages ought not to take into 
 consideration the question of costs. They fi'equently 
 ask a judge what amount will carry costs ; but it seems 
 it is the duty of a judge not to inform them. [Kelly v. 
 Sherlock, L. E. 1 Q. B. 686, 691 ; 35 L. J. Q. B. 209 ; 
 12 Jur. N. S. 937 ; Wilson y. Reed and others, 2 F. & F. 
 152.) Though Erie, C. J., gave the jury such informa- 
 tion in Atthill v. Soman, on the ISTorfolk Cii'cuit, 15 L. T. 
 36, and in Walcelin v. Morris, 2 F. & F. 26. And see 
 Grater v. Collard, 6 DoAvl. 503. And indeed now as the 
 costs are practically in the discretion of the judge, it 
 would be difficult to answer the question. (See the next 
 chapter, pp. 334, 6.)
 
 296 DAMAGES. 
 
 II. — Evidence for the Plaintiff in Aggravation of 
 
 Damages. 
 
 (i.) Malice. 
 
 The fact that the defamation was deliberate and 
 malicious, will of course enhance the damages. All the 
 circumstances attending the publication may therefore 
 be given in evidence; and any previous transactions be- 
 tween the plaintiff and the defendant which have any 
 direct bearing on the subject-matter of the action, or are 
 a necessary part of the history of the case. But it does 
 not follow that every piece of evidence which has been 
 declared admissible to prove malice when malice is in 
 issue (see Chaj)ter IX.), is also admissible in aggravation 
 of damages when there is no question as to the de- 
 fendant's motive or intent. 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. 272) ; and also when evidence is 
 necessary to explain the meaning of language which 
 without it apjiears ambiguous (c. III., p. 113). But such 
 evidence may not be given where the existence of malice 
 is undisjDuted, and the words of the libel are clear. 
 [Stuart V. Lovely 2 Stark. 93 ; Pearce v. Onishy^ 1 M. & 
 Eob. 455 ; Summons v. Blalcc, ih. 477 ; 2 C. M. & E. 416 ; 
 4 Dowl. 263 ; 1 Gale, 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.) But if a subsequent libel has immediate reference 
 to the one sued on, it may be admitted as a necessary 
 .part of the res gcsta\ if the judge considers it as bearing 
 : directly on the matter in hand. [Finnerty v. Tipper^ 2
 
 EVIDENCE IN AGGRAVATION. 297 
 
 Camp. 72 ; May v. Bvoimi, 3 B. & Cr. 113 ; 4 D. & E. 
 
 670.) 
 
 The defendant's conduct of his case, even the language 
 used by his counsel at the trial, may aggravate the 
 damages. {Fer Pollock, C. B., Davlij v. Ouseley^ 25 
 L. J. Ex. 230, 233; BlaJce v. Stevens and others, 4 
 F. & r. 235 ; 11 L. T. 543 ; Risk Atlali Bey v. ^Yllite- 
 hurst, 18 L. T. 615.) So a plea of justification, if not 
 proved, will enhance the damages. {Simpson v. Rohin- 
 son, 12 a B. 511; 18 L. J. Q. B. 73; 13 Jui-. 187. 
 See ante, p. 274.) 
 
 If other words, not actionable per se, yet highly in- 
 jui'ious, were uttered on the same occasion as the words 
 complained of, these other words may clearly be given 
 in evidence as an aggravation of the actionable words, 
 and as shewing the animus of the defendant. "Where 
 a ^Tongful act is accompanied by words of contumely and 
 abuse, the jmy are warranted in taking that into con- 
 sideration, and giving retributory damages." {Per 
 Byles, J., 10 C. B. N. S. 308.) 
 
 And where there has been no express 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.) 
 
 But 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. Neivsam, 1 Ex. 131, 139.) Nor 
 should the improper motive of an agent be matter of 
 aggravation against his principal. {Carmichael\. Water- 
 ford and Limerick Ry. Co., 13 Ir. L. E. 313 ; Robertson y. 
 Wylde, 2 Moo. & Eob. 101.)
 
 :98 DAMAGES. 
 
 (ii.) Extent of Puhtication. 
 
 Tlio attention of the jury should be especially directed 
 to the mode and the extent of publication. 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 
 desii'e to do so. [Per Lord Denman, 9 A. & E. 149.) 
 
 If the libel has appeared in a newspaper, proof 
 that the particular number containing the libel was 
 gratuitously cii'culated in the plaintiff's neighbourhood, 
 or that its sale was in any way especially pushed, will 
 enhance the damages. [GathercoleY. Miall, 15 M. & W. 
 319 ; 15 L. J". Ex. 179 ; 10 Jur. 337.) Evidence of the 
 mode and extent of publication is admissible with a view 
 to damages, even where the publication has been ad- 
 mitted on the pleadings. ( Vines v. Serelt, 7 C. & P. 163.) 
 
 (iii.) Plaintiffs Good Character. 
 
 The plaintitF 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 wit- 
 nesses ; for till then the plaintiff's character is presumed 
 good. [Cormvatl Y. Richardson., Ey. & M. 305 ; Guy v. 
 Gregonj., 9 C. & P. 584, 7 ; Brine v. Bazalgette^ 3 Ex. 
 692 ; is L. J. Ex. 348.) As to when such evidence is 
 admissible under special circumstances to show that the 
 libel was false to the knowledge of the defendant, and 
 must therefore have been written maliciously, see ante^ 
 p. 275, Fountain v. Boodle, 3 Q. B. 5 ; 2 G. & D. 455.
 
 EVIDENCE IN MITIGATION. 
 
 299 
 
 III. EVIDEXCE FOR THE DeFENDAXT IN MiTIGxiTION OF 
 
 Damages. 
 
 (i.) Apologij and Amends. 
 
 By Lord Campbell's Act (G & 7 Vict. c. 9G, s. 1), it is 
 enacted "that in any action for defamation it shall be 
 la-svf ul for the defendant (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 commencement of the action, or as soon after- 
 wards as he had an ojDportunity of doing so, in case the 
 action shall have been commenced before there was an 
 opportunity of making or offering such apology." And 
 by s. 2, " that in an action for a libel contained in any 
 public newspaper or other j)eriodical 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 negli- 
 gence, 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 injiuy 
 sustained by the publication of such libel, .... and 
 that to such plea to such action it shall be competent to 
 the plaintiff to reply generally, denying the whole of
 
 300 DAMAGES. 
 
 such plea." (Sec ChadivlcJc \. Ilerajmth, 2 C. B. 885 ; 
 16 L. J. C. P. 104 ; 4 D. & L. 653.) Money must be 
 paid into Court at the time such a j)leading is delivered, 
 or it will be treated as a nullity (8 & 9 Yict. c. 75, s. 2) ; 
 though now, no doubt, on good cause shoTvm, a master at 
 Chambers would give a defendant leave to pay money 
 into Court at any later time under Judicature Act Eules, 
 Order XXX. r. 1. 
 
 If the action be remitted to a county court under s. 
 10 of the County Courts Act, 1867, the defendant may 
 still avail himself of these sections by giving to the 
 registrar five clear days before the day fixed for the 
 hearing, notice in A^STiting of his intention so to do, signed 
 by himself or his solicitor. (kSee County Court Eules, 
 1875, Order XX. r. 4.) 
 
 The payment into Court under these sections will in 
 no wa}^ operate as an admission of liability, not even to 
 the amount paid in, and the jury should be directed to 
 assess the damages irrespective of the sum so paid into 
 Court. {Jones v. 3facJdr, L. E. 3 Ex. 1 ; 37 L. J. Ex. 1 ; 
 16 W. E. 109 ; 17 L. T. 151.) The apology should be 
 full, though it need not be abject ; the defendant is not 
 bound to insert an apology dictated by the plaintiff ; but 
 it must be such as an impartial j^erson would consider 
 reasonably satisfactory under all the circumstances of 
 the case.' {ElsJc Allah Bey v. Johnstone, 18 L. T. 620.) 
 It should be printed in type of ordinary size, and in a 
 part of the pajjer Avhere it will be seen; not hidden 
 away among the advertisements or notices to corre- 
 spondents. {Lafone v. Smith, 3 H. & 'E. 735 ; 28 L. J. 
 Ex. 33 ; 4 Jur. X. S. 1064.) The sufficiency or insuffi- 
 ciency of an apology is j^eculiarly a question for the 
 jiuy.' {Rkk Allah ^Beij v. Johnstone, 18 L. T. 620.) 
 
 But wholly apart from these sections, and with or 
 without any apology, a defendant mscy now, under
 
 APOLOGY. ' 301 
 
 Order XXX. of the Judicature Act Eules, pay money into 
 Coui't in any action by way of satisfaction or amends, at 
 any time between service of the writ, the time of de- 
 livering his defence, or by leave of a master at Chambers 
 at any later time. If such payment be made before de- 
 livering his statement of defence, he should at once give 
 the plaintiff notice that he has paid in such money ; and 
 in any and every case he should plead the fact of pay- 
 ment into Court in his statement of defence. Such 
 payment will in no way operate as an admission of lia- 
 bility [Berdan v. Greenwood^ 3 Ex. D. 251 ; 47 L. J. 
 Ex. 628 ; 26 W. E. 902 ; 39 L. T. 223) ; and any other 
 defence can be pleaded at the same time, even a justifi- 
 cation. (^IlaivJcesley v. Bradshaiv (C.A.), 5 Q. B. D. 302 ; 
 49 L. J. a B. 333; 28 W. E. 557; 42 L. T. 285; 
 overruling O^BrienY. Clement, 15 M. & W. 435 ; 15 L. J. 
 Ex. 285; 3 D. & L. 676 ; 10 Jur. 395; and Barry v. 
 M'Grath, Ir. E. 3 C. L. 576.) 
 
 Illustrations. 
 
 To an action for libel in a newspaper, the defendant pleaded a defence 
 imder 6 & 7 Vict. c. 96, s. 2, and paid £5 into Court. The jury found the 
 apology insufficient, and awarded the plaintiff %)s. damages. Hdd that the 
 plaintiff was only entitled to £\, as he had not accepted the £5, and taken 
 it out of Court. 
 
 Jones V. Mackie, L. R. 3 Ex. 1 ; 37 L. J. Ex. 1 ; 16 W. R. 109 ; 
 
 17 L. T, 151. 
 See also Lafone v. Smith and others, 3 H. & N. 735 ; 28 L. J. 
 Ex. 33 ; 4 Jur. N. S. 1064 ; 4 H. & N. 158 ; 5 Jur. N. S. 127. 
 
 (ii.) Absence of Mcdice. 
 
 As a rule, unless the occasion be privileged, the motive 
 or intention of the speaker or writer is immaterial to the 
 right of action : the Court looks only at the words em- 
 ployed and their effect on the plaintiff's reputation. But 
 in all cases, the absence of malice, though it may not be
 
 302 DAMAGES. 
 
 a bar to the action, may yet have a material effect in 
 redncing 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. 
 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 subsequent and 
 distinct publication, unless the words sued on are equi- 
 vocal or ambiguous. {^CooJc v. Hughes^ R. & M. 112; 
 Dat-hy V. Ouseley, 1 H. & IN". 1 ; 25 L. J. Ex. 227 ; 2 
 Jur. :N'. S. 497.) The fact that the defendant did not 
 originate the libel, but innocently repeated it, should tell 
 in his favour. Thus, where it apj^ears on the face of a 
 libel that it is founded on a statement in a certain news- 
 paper, the defendant is entitled to show that he did in 
 fact read such statement in that newspaper, and ^\Tote 
 the libel believing such statement to be true. (i?. v. 
 Burdett, 4 B. & Aid. 95; MuUettx. Ilulton, 4Esp. 248.) 
 So, if in the libel the defendant has named A. as his 
 informant, he may prove in mitigation that he did in 
 fact receive such information from A. (though of course 
 this is no defence to the action ; ante^ p. 1G2.) (Scmble, 
 2JC)' Gibbs, C. J., in 3IiUs and wife v. Sjjenccr and wife 
 (1817) Holt, ^^. P. 533; Fast v. Chapman, M. & M. 
 4G ; 2 C. & P. 570 ; Charlton v. Walton, G (\ & P. 385 ; 
 Bennett v. Bennett, 6 C. & P. 588 ; Duncornhe v. Daniell, 
 2 Jur. 32 ; 8 C. & P. 222 ; 1 W. W. & H. 101 ; cited 
 7 Dowl. 472 ; Davis v. Cutbush and others ; 1 F. & P. 
 487.) But where the libel does not, on the face of it.
 
 ABSENCE OE MALICE. 303 
 
 purport to be derived from any one, but is stated as of 
 the writer's own knowledge, there evidence is wholly 
 inadmissible to sliow that it was copied from a news- 
 paper or communicated by a correspondent. ( Talhutt v. 
 Clarlc and another^ 2 Moo. and Eob. 312.) Evidence 
 that in another action the plaintiff had already sued A. 
 the informant and recovered heavy damages, is altogether 
 inadmissible. [Creevjj y. Carv^ 7 C. & P. G4.) But if 
 the defendant can show that in coj)ying the libel from 
 another newspaper, he was careful to omit certain pas- 
 sages which reflected strongly on the plainti:ff, his conduct 
 in making such omissions is admissible as showing the 
 absence of all animus against the plaintiff, and this neces- 
 sarily involves the admissibility of the original libel 
 copied. ( Creevy v. Carr^ 7 C. & P. 64 ; Creighton v. 
 Finlau, Arm. Mac. & Ogle (Ir.) 385.) 
 
 I have thus attempted to reconcile cases which are generally 
 considered in conflict. In Talhatt v, Clarlc, 2 Moo. & Rob. 
 312, Lord Dennian says : — -"I know that in a case in the Com- 
 mon Pleas it has been held that a previous statement in another 
 newspaper is admissible ; but even that decision had been very 
 much questioned." His Lordship probably referred to Saunders 
 V. Mills, 6 Bing. 213 ; 3 M. & P. 520. And thereupon Mr. 
 Pitt-Taylor, in the last edition (1878) of his Law of Evidence, 
 p. 316, remarks : " However, by the subsequent recognition of 
 Saunders v. Mills, in Pearson v. Lemaitre, 5 M. & Gr. 719, 
 the case of Talhutt v. Clark would seem to be indirectly over- 
 ruled." But with all deference to that learned writer, the 
 decision in Saunders v. Mills was that evidence that many 
 other papers besides the defendant's had also copied the state- 
 ment from the Observer was i^iadmissible ; evidence that 
 defendant had copied it from the Observer into his own paper 
 had been admitted apparently without question at the trial ; and 
 in allowing that evidence, Tindal, C.J., says (6 Bing. 220) : " It 
 appeared to me I had gone the full length." There is no real 
 conflict between the decisions in Saunders v. Mills or Pearson
 
 304 DAMAGES. 
 
 V. Lemaitre and that in TalhiUt v. Clark. I think, therefore, 
 that the last case must still be regarded as good law. 
 
 Illustrations. 
 
 The defendant pui)li.-ilied 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 account of what took 
 place, and had blundered through inadvertence solely, was held admissible 
 by Coleridge, J. 
 
 Smith v. Scott, 2 Car. & Kir. 580. 
 And, therefore, evidence of Avhat really did take place at the trial is 
 admissible ; though no evidence can be given of the truth or falsehood of 
 the statements there made. 
 
 East V. Chapman, M. & M. 46 ; 2 C. & P. 570. 
 Vessey v. Pike, 3 C. & P. 512. 
 Where a newspaper published the report of a company containing reflec- 
 tions on the plaintitt', their manager, Wightman, J. directed the jury that if 
 they were satisfied suuh publication was made innocently, and with no 
 desire to injure the plaintiff, they might give nominal damages only. 
 Davis V. Cutbush and others, 1 ¥. & F. 487. 
 On the day of the nomination of candidates for the representation of the 
 borough of Finslaxry, the defendant published in the Morning Post certain 
 fiicts discreditable to one of the candidates, the plaintiff", which he alleged 
 lie had heard from one Wilkinson at a meeting of the electors. Held, that 
 AVilkinson 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. 
 
 JJancomhe v. JJaniell, 2 Jur. 32 ; 8 C. & P. 222 ; 1 W. W. & H. 
 101. 
 
 (iii.) Evidence of tlie plamtlf s had character. 
 
 There has been a great conflict of opinion as to the 
 admissibility of evidence of the plaintiff's general bad 
 character, and of rniiionrs prejndieial to his reputation. 
 There is no doubt as to the general rule that circum- 
 stances, which, if pleaded, would have been a bar to the 
 action, cannot be given in evidence in mitigation of 
 damages. [Speck \. FJiilUps., 7 Dowl. 470.) Evidence 
 of the truth of the slander or libel is therefore inadmis- 
 sible, unless a justification is pleaded. ( Undenvood v.
 
 PLAINTIFF'S BAD CHARACTFR. 
 
 305 
 
 ParliS^ 2 Str. 1200.) Evidence of a rumour that the 
 jDlaiiitifF had in fact committed the offence charged 
 against him clearly falls short of a justification, and is 
 moreover objectionable also as hearsay. On the other 
 hand, the gist of the action is the injury done to the 
 plaintiff's reputation ; and if the plaintiff had no reputa- 
 tion to be injured, surely he cannot be entitled to sub- 
 stantial damages. It seems therefore that evidence of 
 the plaintiff's general bad character may be given in 
 mitigation of damages, but the defendant may not go 
 into particulars. {Williams v. Callender (1810), Holt, 
 N. P. 307, 11. ; Mills and luife v. Spencer andtvife (1817), 
 
 Holt, N. P. 533; v. 3Ioor, 1 M. & S. 284; 
 
 Wail/man v. Weaver, D. & E. N. P. C. 10 ; 11 Price, 
 257, n. ; Rodriguez v. Tadmire, 2 Esp. 721; contra, Jones 
 V. Stevens, 11 Price, 235 ; wherein the case of Earl of 
 Leicester v. Walter, 2 Camp. 251, is denied to be 
 law; Snoivdon Y. Smith, 1 M. & 8. 280, n.; Woolmer 
 V. Latimer, 1 Jur. 119 ; Bracegirdle v. Bailey, 1 F. & F. 
 536.) 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 ; but nnless such details 
 are material to the issue the defendant must take the 
 plaintiff's answer and cannot call evidence to contra- 
 dict it. 
 
 Eumours as to plaintiff's general bad character will 
 not however be admissible in evidence unless they be 
 sho^\ii to have existed previously to the alleged slander 
 or libel ; for otherwise they may have been occasioned by 
 the defendant's own publication, in which case they should 
 rather aggravate than diminish the damages. {Thomp- 
 \ son V. JVge, IG Q. B. 175 ; 20 L. J. Q. E. 85 ; 15 Jur. 
 :' 285.) The law on this point was much discussed in 
 Bell V. I^ar/ce, 11 Ir. C. L. E. 413 ; and it was decided 
 that evidence of antecedent_^nera]^ reputation of plain-
 
 3o6 DAMAGES. 
 
 tiff's bad character is admissible, and so is evidence that 
 \\\Q plaintiff had certain vicious habits Avhich would lead 
 him to commit such acts as that ascribed to him in the 
 slander. But that evidence of a general report that 
 jDlaintiff had actually committed the particular offence 
 charged by the slander was not admissible. The fol- 
 lowing Nisi Prius decisions must therefore be con- 
 sidered bad law : — Earl of Leicester v. Walter^ 2 Camp. 
 251; Richards v. Richards^ 2 Moo. & Eob. 557; Chalmers 
 V. ShacJcell and others, 6 C. & P. 475 ; and Knohell v. 
 Fuller, Peake's Add. Cas. 139. 
 
 As to justifying part of the words complained of in 
 mitigation of damages, see ante, p. 176. 
 
 Illustrations. 
 
 One officer charged another with stealing a 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). 
 BM V. Parke (1860), 11 Ir. C. L. R. 413. 
 The L(jrd Chief Baron is reported to have given a similar ruling in 
 Dolede v. Fisher, Times for July 29th, 1880. 
 
 (iv.) Rlaintiffh iircvioiis conduct in provoking the 
 imhlication. 
 
 In some cases, so we have seen, the plaintiff's conduct 
 towards the defendant may be a bar to the action. If 
 the plaintiff has attacked the defendant in the news- 
 paper, and the defendant replies without undue person- 
 ality, and without wandering into extraneous matters, 
 then such reply, if made honestly in self-defence, is 
 privileged. (See ante, p. 228.) But where the facts do 
 not amount to such a defence, they may still tend to 
 mitigate the damages. " There can be no set-off of one 
 libel or misconduct against another ; but in estimating
 
 PR VO CA riON. .cr 
 
 the compensation for the plaintiff's injured feelings, the 
 jury might fairly consider the plaintiff's conduct, and 
 the degree of respect he has shown for the feelings of 
 others." (Fer Blackburn, J., in Kelhj v. Sherlock^ L. E. 
 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 published a 
 libel, provided it be also shown that this libel had come 
 to the defendant's knowledge and occasioned the publi- 
 cation of the libel now sued on. [Flnnert/j v. Tipper^ 2 
 Camj). 76 ; Antony PasquMs case^ cited 1 Camp. 351 ; 
 Taiplcy V. Blahey, 2 Bing. N. C. 437 ; 2 Scott, 642 ; 3faij 
 V. Broivn, 3 B. & C. 113; 4 D. & E. 670 ; Watts v. Fraser, 
 7 A. & E. 223 ; 7 C. & P. 369 ; 1 M. & Eob. 449 ; 2 K & 
 P. 157 ; WaJdey v. Johnson, Ey. & M. 422.) And under 
 the new system of pleading inaugurated by the Judica- 
 ture Act such previous libels may be made the matter 
 of a counter-claim, even though not immediately con- 
 nected 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. Hession, 40 L. T. 70 ; 4 L. E. Ir. 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 Harnett v. Vise and luifc, 5 Ex. 
 D. 307; 29 W. E. 7, Huddleston, B., deprived a plaintiff 
 of his costs on this ground ; although the jmy found that 
 the plea of justification Avas 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. 
 
 X 2
 
 3o8 DAMAGES. 
 
 (v.) Absence of Special Damage. 
 
 When any special damage is alleged, the onus of 
 proving it lies of coui-se on the plaintiff... The defendant 
 may call evidence to rebut the plaintiff's proof. He 
 may either dispute that the special damage has occurred 
 at all, or he may argue iis a point of laAV that it is too 
 remote (seo jwst, p. 321); or he may call evidence to 
 show that it was not the consequence of the defendant's 
 words, but of some other cause. Thus 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 endeavour to shew 
 that the loss of trade is due to the charge made against 
 the plaintiff' by the other paper. But, generally speak- 
 ing, a defendant does not call evidence to rebut the 
 special damage, but relies upon the cross-examination of 
 the plaintiff' 's witnesses. 
 
 IV. Special Daitage w^here the words are not 
 
 ACTIONABLE JiJ*^;' SC. 
 
 Special Damage is such a loss as the law will not 
 presume to have folloAved from the defendant's words ; 
 but which dej)ends, in j)art at least, on the special cii'- 
 cumstances of the case. It must therefore be proved by 
 evidence at the trial ; and should ahvays 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.) Wherever the words spoken impute to the plain- 
 tiff the commission of any indictable offence.
 
 SPECIAL DAMAGE. 309 
 
 (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 produce 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 action ; Jor the words are not actionable iicr se. The 
 words do not, apparently and upon the face of them, im- 
 port such defamation as will of course be injurious ; it is 
 necessary, therefore, that the plaintiff should aver some 
 particular damage to have hai3pened. And to maintain 
 the action the damage thus averred must be the natural^ 
 immediat e, and legal consequence of the words which the 
 defendant uttered. It is not enough that his words have 
 in fact produced such and such damage, unless it can 
 reasonably be presumed that the defendant, when he 
 uttered the words, either knew, or ought to have known, 
 that such damage would result. Such damage being 
 essential to the action, must have accrued before action 
 brought. 
 
 The special damage necessary to support an action for 
 defamation Avhere the words are not actionable in them- 
 selves, must be the loss of some material temporal ad- 
 j^antage. The loss of a marriage, of employment, of 
 custom, of profits, and even of gratuitous entertainment 
 and hospitality, will constitute special damage ; but not 
 mere annoyance or loss of peace of mind, nor even 
 physical illness occasioned by the slanderous report. 
 
 Such loss may be either the loss of some right or 
 position already acquired, or the loss of some future
 
 3IO ■ DAMAGES, 
 
 benefit or advantage the acquisition of wliich is preycntecl. 
 Thus if the defendant causes a servant to lose his situa- 
 tion, or prevents his getting one, by maliciously giving a 
 false character ; in either case an action will lie, though 
 the words be not actionable fer 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. But i n 
 either case, and in every other, it must be clearly proved 
 that the loss is the direct result of defendant's words. 
 
 Illustrations. 
 
 Anthony Elcock, citizen and mercer of London, of the substance and 
 vahie of J3i)00, sought Anne Davis in marriage ; but the defendant 
 jjrremissorum haml irjiiarns, accused her of incontinency, -wherefore the said 
 Anthony wliolly refused to marry the said Anne. Held, sufficient special 
 damage. Verdict for the plaintiff for 200 marks. 
 
 Davis V. Gardiner, 4 Eep. 16 ; 2 Salk. 294 ; 1 Roll. Abr. 38. 
 So if a man lose a marriage. 
 
 Matthev) v. Crass, Cro. Jac. 323. 
 In consequence of defendant's slandering the plaintiff, a dissenting 
 'minister, his congregation diminislied : but tliis was held insufficient, as it 
 did not appear that the plaintiff lost any emolument thereby. 
 
 Hoimood V. Thorn, 19 L. J. C. P. 94 ; 8 C. B. 293 ; 14 Jur. 87. 
 But s6e Hartleij v. Herring, 8 T. R. 130. 
 " 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 excom- 
 municated,' by which the patron refuses to present him (as he Avell 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. Btromj, 5 A. & E. 535 ; 1 N. & P. 29 ; 2 H. & W. 
 336. 
 Or of a chaplaincy. 
 
 Payne v. Beauwmorris, 1 Liv. 248. 
 If, however, the dismissal from service be colourable only, the master 
 intending to take the plaintiff back again, as soon as the action is over : 
 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 
 sufficient special damage. 
 
 Sterry v. Foreman, 2 Car. & P. 592. 
 
 I 
 
 1
 
 SPECIAL DAMAGE. 311 
 
 Sii, if the agent of a certain firm going to ileal witli the plaintiff Le 
 stopi^ed and dissuaded by the defendant, and this, altlioiigh such firm 
 subsequently became bankrupt, and paid but 12s. 6fZ. in the ,£, so that had 
 plaintiff obtained the order he would have lost money by it. 
 
 Etormj V. Cludlands, 8 C. & P. 234. » 
 
 The loss of the hospitality of friends gratuitously afforded is sufficient 
 special damage. 
 
 Mnorr V. Meagher, 1 Taunt. 39 ; 3 Smith 135. 
 Danes and tdfe v. Solomon, L. E. 7 Q. B. 112 ; 41 L. J. Q. B. 10; 
 20 W. E. 167 ; 25 L. T. 799. 
 So is the loss of any gratuity or present, if it be clear that the slander 
 alone prevented its receipt. 
 
 Bracebridge v. Watson, Lilly, Entr. 61. 
 Earth]! v. Herring, 8 T. E. 130. 
 In consequence of defendant's vi^ords, 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 emigrated 
 three years before, refused to do so. Held, sufficient special damage. 
 Corcoran and wife v. Corcoran, 7 Ir. C. L. E. 272. 
 Where a vicar in open church falsely declared 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 cj^uit the church, and was scandalized, and was liindered 
 of hearing divine service for a long time ; it was held that an action lay. 
 Barnabas v. Traunter (1641), 1 Vin. Abr. 396. 
 But a mere apprehension of future loss cannot constitute special damage./ 1 
 " I know of no case where ever an action for words was grounded upoioj j 
 eventual damages which may possibly happen to a man in a future situaJ i 
 tion," says De Grey, G.J., in 
 
 Onsloio V. Home, 3 Wils. 188 ; 2 W. Bl. 753. 
 And see Doijleif v. Roberts, 3 Bing. N. C. 835 ; 5 Scott, 40 ; 3 
 Hodges, 154. 
 The defendant said of a married man that he had had two bustards : 
 " by reason of which words discord arose between him and liis wife, and 
 they were likely to have been divorced." Held, that this constituted no 
 special damage. 
 
 Barinund's Case, Cro. Jac. 473. 
 But where the defendant advertised in Htie and Cry that the plaintiff 
 liad been guilty of fraud, and offered a reward for his appreliension, and 
 the plaintiff immediately sued on the libel, and after action brought 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 liappened 
 after 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 ol 
 being arrested. 
 
 Goslin v. Corry, 7 M. & Gr. 342 ; 8 Scott, N. E. 21. 
 And see Ingram v. Lawson, 6 Bing. N. 0. 212 ; 8 Scott, 471 ; 9 
 G. & P. 326 : 4 Jur. 151.
 
 312 DAMAGES. 
 
 So where the words are not actionable j;er 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 by a doctor's 
 bill. 
 
 Alhop V. Allsop, 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 6 Jur. N. 
 
 433 ; 8 W. E. 449 ; 36 L. T. (Old S.) 290. 
 Lynch v. Knight and ivife, 9 H. L. C. 577 ; 8 Jur. N. S. 724 ; 5 
 L. T. 291. 
 Nor will the fact that plaintiff has been expelled from a religious 
 society of which she was a member, constitute special damage. 
 
 Boherts et ux. v. Roberts, 5 B. & S. 384 ; 33 L. J. Q. B. 249 ; 10 
 Jur. N. S. 1027 : 12 W. E. 909 ; 10 L. T. 602. 
 Loss of the consortium of a husl^and is special damage. Per Lords Camp- 
 bell and Cranworth in 
 
 Lynch v. Knight and wife, 9 H. L. C. at p. 589 • 
 1 JiJii32i-™£t^lj-ftOiiQ- society of friends and neighbom-s. 1 ) 
 
 \ 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. 
 
 The law is the same in America. 
 
 The refusal of civil entertainment at a pul)lic-house was held sufRciont 
 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 l)een 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 p^o^^de food and clothing fi)r the plaintiff. 
 Beach v. Ranney, 2 Hill (N. Y.) 309. 
 
 The defendant told Neiper that the plaintiff committed adulter}^ with 
 Mrs. Fuller. Neiper hail 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 do^\^l his hoe, and left the held : 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 suffi- 
 cient 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 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
 
 COSTS. 335 
 
 recovered less tlian 40s. damages could not recover any costs 
 whatever from the defendant unless the judge immediately 
 certified on the record that the slander or libel was wilful and 
 malicious. But even if the judge certified both that the action 
 was one fit to be tried in the Superior Court, and also that the 
 slander was wilfvd and malicious, so as to take the case out of 
 both the 30 & 31 Vict. c. 142, s. 5, and the 3 & 4 Vict. c. 24, 
 s. 2, still no certificate could enable a plaintiff to get more costs 
 than damages if he sued for a slander actionable per se, and 
 recovered less than 40s. (Evans v. Uees, 9 C. B. N. S. 391 ; 
 30 L. J. C, P. 16 ; Marshall v. Martin, L. R. 5 Q. B. 239 ; 
 39 L. J. Q. B. 85 ; 18 W. R. 378 ; 21 L. T. 788.) For the 
 relentless words of the 21 Jac. I. c. 16, contain no proviso 
 enabling a judge to make any exemption from the imperative 
 rule that a plaintiff, suing on the case for slanderous words, and 
 recovering less than 40s., shall have " only so much costs as the 
 damages so given or assessed amount unto," This statute, 
 21 Jac. I. c. 16, was held to apply only to words actionable 
 per se, and not to actions of libel, of slander of title, of scan- 
 dalum magnatum, or where the words are actionable only by 
 reason of special damage alleged. 
 
 But both the 21 Jac. I. c. 16 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 C. P. D. 
 119; 46 L. J. C. P. 230; 25 W. R. 255; 35 L. T. 851 
 Gar7iett 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. 944 
 48 L. J. Ex. 186 ; 26 W. R. 698; 39 L. T. 261; Ex parte 
 Mercers 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 (9 & 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 (Jourt otherwise orders. It is therefore the 
 duty of defendant's counsel at once to apply for such an
 
 336 COSTS. 
 
 order, or at least at the same sitting of the Coui't. 
 {Kjjnaston v. Macldnder, 47 L. J. Q. B. 76 ; 37 L. T. 
 390.) He cannot apply to that Judge subsequently, nor 
 to a Judge at chambers. [Balcer v. OaTaes (C. A.), 2 
 Q. B. D. 171 ; 46 L. J. 246 ; 25 W. E. 220 ; 35 L. T. 
 832 ; Tijne Alkali Co. v. Laivson, 36 L. T. 100 ; W. X. 
 1877, p. 18 ; ForsdlJce and ivife v. Stone, L. E. 3 C. P. 
 607 ; 37 L. J. C. P. 301 ; 16 W. E. 976 ; 18 L. T. 
 722.) If no aj^plication be made at the trial, the only 
 chance is to apply to a Divisional Court, which has 
 under Order LY. an original jurisdiction to make an 
 order to deprive a successful plaintiff of the costs of an 
 action tried before a jiuy. (Jlf/ers v. Defries ; Siddons v. 
 Laivrence.i^^. D. 176; 48 L.J. Ex. 446; 27 W. E. 
 791 ; 40 L. T. 795.) 
 
 But such an applicatiou must be made within a reasonable 
 time. (Kynaston v. Mackinder, 47 L. J. Q. B. 76 ; 37 L. T. 
 390 ; Boivey v. Bell, 4 Q. B. D. 95 ; 48 L. J. Q. B. 161 ; 27 
 W. E. 247 ; 39 L. T. 608.) In the three other cases reported 
 with Boicey v. Bell, in the first, Brooks v. Israel, the plaintiff 
 was eventually allowed his costs on the merits ; and so in the 
 second, North v. Bilton ; while in Siddons v. Lawrence the 
 plaintiff was eventually deprived of his costs, good cause being 
 shown. 
 
 The Judge or Divisional Coiu't will, as a rule, only 
 deprive a plaintiff of his costs where " contemptuous " 
 damages, such as a farthing or a sliilling, are given. If 
 forty shillings or more be given, the law is generally 
 allowed to take its course. Though in a recent case 
 Huddleston, B., deprived a plaintiff of his costs, where 
 the verdict was for £10 damages, and his discretion was 
 approved both in the Exchequer Division and in the 
 Court of Appeal. [Harnett v. Vise and ivife, (C. A.) 5 
 Ex. D. 307 ; 29 W. E. 7.) But there of course the 
 circumstances were exceptional.
 
 COSTS. 337 
 
 And although the rule expressly requires that the 
 Judge should ouly interfere as to costs, " upon applica- 
 tion made at the trial for good cause shown," it has now 
 been decided that the Judge need not wait for any 
 express application to be made to him, but may make 
 such an order mero motu, if he think proper. [Turner v. 
 Heyland, 4 C. P. D. 432 ; 48 L. J. C. P. 53o ; 41 L. T. 
 556); provided both parties are still present and have 
 an opportunity of arguing the question at the time. 
 {Collins V. Welch, 5 C. P. D. 27 ; 49 L. J. 260 ; 28 W. 
 E. 208 ; 41 L. T. 785.) It must be assumed that '' the 
 counsel in whose favoiu* the order was made was ready 
 to apply for it.'' But see 3Iarsden and ivife v. Lancashire 
 and Yorkshire Ry. Co., 42 L. T. 631. 
 
 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 deUvered. No order will be made as to such costs 
 after the judgment has been drawn up ; they must be borne by 
 the party ordering them. (Ashiuorth v, Outram, 9 Ch. D. 483 ; 
 27 W. R. 98 ; 89 L. T. 441 ; Executors of Sir Roiuland Hill 
 V. Metropolitan District Asylum, 49 L. J. Q. B. 668 ; 43 L. T. 
 462 ; W. N. 1880, p. 98 ; Davey v. Pemberton, 11 C. B. (N. S.) 
 629.) To entertain such an application would substantially be 
 to rehear the cause. (In re St. Nazaire Co., 12 Ch, D, 88 ; 27 
 W. R. 854 ; 41 L. T. 110.) 
 
 1 presume that the word "judge," in Order LV., r. 1, includes 
 the judge of a County Court to which the case is sent for trial ; 
 and an under-sheriff executing a writ of enquiry, for they were 
 both included in the word "judge " in the 30 & 31 Vict. c. 142, 
 s. 5. {Taylor v. Cass, L. B. 4 C. P. 614 ; 17 W. R. 8G0 ; 20 
 L. T. G67 ; Craven v. Smith, L. R. 4 Ex. 146 ; 38 L. J. Ex. 90; 
 17 W. R. 710 ; 20 L. T. 400.) A master, to whom an action is 
 referred with the powers of a judge at Nisi Prius, may, in his 
 award, make any order as to costs, not inconsistent with the 
 terms of the submission. (Bedivell v. Wood, 2 Q. B. D. 626 ; 
 36 L. T, 213.) It is, however, usual in references to give the
 
 338 COSTS. 
 
 arbitrator power x)ver the costs of the reference and award only, 
 leaving the costs of the action to follow the event. (And see 
 Frean v. Sargent, 2 H. & C. 293 ; 32 L. J. Ex. 281 ; 11 W. K 
 808 ; 8 L. T. 467.) 
 
 These rules as to nominal damages carrying costs 
 apply to all courts whatsoever in England and to all 
 actions of slander and libel, wherever tried, so long as 
 they come before a juiy. Thus, in the Salford Hundred 
 Court of Eecord (^w>'?zcr V. Heyland, 4 C. P. D. 432; 
 48 L. J. C. P. 535 ; 41 L. T. 556), or in the Liverpool 
 Coui't of Passage [KingN. HmvJcesivorth, 4 Q. B. D. 371 ; 
 48 L. J. Q. B. 484; 27 W. E. 660; 41 L. T. 411), 
 the rule is the same as in the Superior Coui-ts. 
 
 And if at the first trial there was a nonsuit and a 
 new trial be granted, which results in plaintiff's favour, 
 Order LY. gives him his costs of both trials, if no order 
 be made to the contrary. (Creen v. Wright, 2 C. P. 
 D. 354 ; 46 L. J. C. P. 427 ; 25 W. E. 502 ; 36 L. T. 
 355. Field v. Great Northern Ry. Co., 3 Ex. D. 261 ; 
 26 W. E. 817; 39 L. T. 80.) 
 
 But if the Judge chooses to make an order, that order 
 is not necessarily that each party should pay his own 
 costs. He may on very good cause shown, order that 
 the successful plaintiff should pay defendant's costs; 
 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. 521 ; 28 W. E. 11 ; 41 L. T. 146.) But of 
 course such an order would only be made in an extreme 
 case. (See Norman v. Johnson, 29 Beav. 77 ; Wootton 
 V. Wootto7i, Weekly Kotes, 1869, p. 175.) 
 
 In Harris v. Petherick, 4 Q. B. D. 612, Bramwell, L.J., 
 says : " If it were possible to apportion the costs of the issues 
 
 I
 
 APPORTIONING COSTS. 339 
 
 between the parties, perhaps it would in some cases, especially 
 in actions for slander where tljo damages are assessed at a 
 farthing, be the most satisfactory manner of concluding a 
 litigation in which, at least technically, both the plaintiff and 
 the defendant are to blame." And accordingly it has now been 
 decided that where the plaintiff joins four distinct causes of 
 action in one suit {e.g., malicious prosecution, libel, slander, and 
 trespass), and the jury find for the plaintiff damages one 
 farthing for the libel, and for the defendant as to the other 
 causes of action, the word " event " must be read distributively, 
 and the defendant is entitled to tax his costs of the issues found 
 for him, unless the Court or a judge otherwise orders. {Myers 
 V. Defries, 5 Ex. D. 15, 180 ; 48 L. J. 446 ; 49 L. J. Ex. 206 ; 
 28 W. K. 258, 406 ; 41 L. T. 137, 659 ; Davidson v. Gray, 5 
 Ex. D. 189, n. ; 40 L. T. 192 ; (C. A.) 42 L. T. 834.) And by 
 analogy to these cases, it would appear the right course in some 
 cases to apportion the costs of the various issues arising out of the 
 same cause of action where it is possible so to do. (See James v. 
 Brook, 16 L. J. Q. B. 168 ; Prudhomme v. Fraser, 2 A. & E. 645.) 
 Thus, if a defendant in an action of defamation both justified and 
 pleaded privilege, and called at the trial ten witnesses in support 
 of his plea of justification, all of whom broke down under cross- 
 examination, or were confuted by the evidence of plaintiff's 
 witnesses, and the jury found that the words were false, and yet 
 at the same time it appeared that the occasion of publication 
 was clearly a privileged one, and there was no evidence of 
 malice, here it would clearly be right that the plaintiff should 
 pay the general costs of the action, for he ought never to have 
 brought it ; but that all extra costs occasioned by the plea of 
 justification being placed on the record should be paid by the 
 defendant. (See Skinner v. Slioppee et ux. 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.) As the law now stands, the plaintiff would 
 have to pay all the costs of the action, unless a special order be 
 made to the above effect. But supposing that the judge at the 
 trial makes such an order, there are immense practical difficul- 
 ties in the way of taxation. It would be 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 par- 
 
 z 2
 
 34° COSTS. 
 
 ticular witness was subpcenaed, or a particular page of the brief 
 prepared. The only plan would be to tax the costs of the action 
 generally, and tlien deduct such sum as the plaintiff could prove 
 to have been occasioned by the justification. This is the plan 
 adopted in Chancery, where a claim and a counter-claim are 
 both dismissed with costs. (See j^ost, p. 841 ; Bailiff of Bur- 
 ford V. Lenthall and others, 2 Atk. 551, and Gracknall v. Jan- 
 son (C. A.), 11 Ch. D. 1, 23 ; 27 W. E. 851 ; 40 L. T. 640.) 
 
 But even this involves great additional trouble, and the 
 masters generally adopt a rough and ready method of apportion- 
 ment. Thus in Knight v. Pursell, 49 L. J. Ch. 120 ; 28 W. R 
 90 ; 41 L. T. 581, where the plaintiff applied for an injunction 
 in respect of three separate subjects of complaint, and was 
 successful as to one, unsuccessful as to the other two, and a 
 special order was made, the taxing-master taxed the costs of the 
 action as a whole, and then divided them into thirds, allowing 
 plaintiff one third, and defendant two-thirds of both plaintiff's 
 and defendant's costs. And the Court held that this was all 
 that could be expected of him. 
 
 As to dividing the costs of a divisible plea of justification, 
 see, under the old practice, Biddulph v. Chaniherlayne, 17 
 Q. B. 351 ; Reynolds v. Harris, 3 C. B. N. S. 267 ; 28 L. J. 
 C. P. 20. As to costs of immaterial issues, see Goodhurne v. 
 Bouwian, 9 Bing. G67. 
 
 Payment into Court. 
 
 It has now been finally decided by the Court of Appeal 
 that money may bo paid into Court in any action of 
 libel or slander without admitting the plaintiff's cause of 
 action, and that any other defence may be pleaded at 
 the same time, even a justification. [Ilcmkeslei/ v. Brad- 
 shaw (C. A.) 5 Q. B. D. 302 ; 49 L. J. Q. B. 333 ; 28 
 W. E. 557 ; 42 L. T. 285.) If the plaintiff accepts the 
 sum paid into Court in satisfaction of his claim, he must 
 give the defendant a notice in Form l^o. 6, Jud. Act, 
 1875, App. B. ; and may then proceed to tax his costs, 
 and in case of non-payment within forty-eight hours,
 
 COSTS OF COUNTERCLAIM. 341 
 
 may sign judgment for his costs. But even in this case 
 the plaintiff is subject to the general jurisdiction of the 
 Court over all costs ; and may be deprived of his costs, 
 if the whole action was useless or malicious. (Broad- 
 hurst V. Willey, Weekly Notes, 1876, p. 21.) If the 
 plaintiff does not accept the sum paid into Cornet, but 
 continues his action for the balance, he may have to pay 
 the whole costs of the action, should the jury deem the 
 sum paid irusufhcient. [Langridge v. Cmnphell^ 2 Ex. D. 
 281; 46 l1 J. Ex. 277; 36 L. T. 64; 25 W. E. 351.) 
 But the practice in this respect has lately changed ; and 
 the rule now is, that in the absence of special circum- 
 stances, 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 his costs after that time. 
 {BucUon V. Higgs, 4 Ex. D. 174 ; 27 W. E. 803 ; 40 
 L. T. 755.) 
 
 Counterclaim. 
 
 It is very seldom that there is a counterclaim in an 
 action of libel or slander ; but wherever there is, its 
 presence always complicates the question of costs. The 
 law on this point can hardly be considered as settled at 
 present. But it is clear that the County Courts Act, 
 1867, does not apply to actions of libel or slander, nor 
 to counterclaims of any kind. [Blake v. Applegard, 3 
 Ex. D. 195; 47 L. J. Ex. 407; 26 W. E. 592.) It 
 follows therefore, where the original action is either for 
 libel or slander and the defendant sets up any counter- 
 claim, that if the plaintiff recover any sum at all, even 
 a farthing, and the defendant nothing on his counter- 
 claim ; then the plaintiff', in the absence of any special 
 order to the contrary, is entitled to the whole costs of 
 the action, (rotter v. CJiamhers, 4 C. P. D. 457 ; 48 
 L. T. C. P. 274 ; 27 W. E. 414.) If both recover some-
 
 342 COSTS. 
 
 tiling, tlic- plaintiif on his claim and the defendant on 
 his countcrelaini, then the one who recovers the larger 
 sum is entitled to the general costs of the cause ; the 
 other to the costs only of the particular issues which 
 have been found in his favour. (Blake v. Appleyard^ 
 3 Ex. D. 195; 47 L. J. Ex. 407; 26 W. K. 592; 
 HalUncm v. Price, 27 W. E. 490 ; 41 L. T. 627 ; Neale 
 and others v. Clark and others, 4 Ex. D. 286 ; 41 L. T. 
 438 ; Davidson v. Gray, 5 Ex. D. 189 n.; 40 L. T. 192 ; 
 (C. A.) 42 L. T. 834; Cole v. Firth, 4 Ex. D. 301; 40 
 L. T. 857 ; Stooke v. Taylor, 5 Q. B. D. 569 ; 49 L. J. 
 Q. B. 857 ; 29 W. E. 49 ; 43 L. T. 208.) If neither 
 plaintiff nor defendant recover anything, and both claim ; 
 and counterclaim be dismissed with costs, the plaintiff i 
 pays the general costs of the action, including those 
 common to both claim and counterclaim, for he com- 
 menced the litigation ; the defendant pays only such \ 
 costs as the plaintiff can prove to have been occasioned 
 by the counterclaim. [Saner v. Bilton, 11 Ch. D. 416; \ 
 48 L. J. Ch. 545 ; 27 W. E. 472 ; 40 L. T. 134, followed I 
 in the Court of Appeal in Mason v. Brentini, 15 Ch. D. j 
 287; 29 W. E. 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 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 a farthing only there- 
 under. {Stajjles V. Young, 2 Ex. D. 324 ; 25 W. E. 304; 
 ChatfieldY. Sedgwick, 4 C. P. D. 459; 27 W. E. 790; 
 41 L. T. 438; Rutherford y. WiJkie, 41 L. T. 435.) 
 
 As to when costs will be given on the " higher scale,"
 
 COSTS. 343 
 
 sec Homer v. Oijle)'^ 49 L. J. C. P. 655, and Chapman v. 
 Midland Ry. Co., 5 Q. B. D. 167 ; 28 W. E. 413 ; (C. A.) 
 5 Q. B. D. 431 ; 49 L. J. Q. B. 449 ; 28 W. E. 592 ; 42 
 L. T. 612.) 
 
 "When an action of libel or slander is remitted to the 
 Coimty Conrt, under s. 10 of the Coimty Courts Act, 
 1867 (30 & 31 Yict. 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. 88) ; the costs of the proceedings in the 
 Superior Coiu't will be allowed according to the scale in 
 use in the Superior Court ; the costs incm-red subsequent 
 to the order of reference according to the County Court 
 scale. 
 
 Any costs occasioned by undue prolixity in the 
 endorsement on the writ (Order II., r. 2), or in the 
 pleadings (Order XIX., r. 2), or by delivering interro- 
 gatories unnecessarily, vexatiously, or at improper 
 length (Order XXXI., r. 2), shall be borne by the party 
 in fault. 
 
 As to costs in criminal proceedings, see, as to indict- 
 ments, post, p. 590 ; as to criminal informations, post, 
 p. 595.
 
 CHAPTER XII. 
 
 THE LAW OF PERSONS IN BOTH CIVIL AND CRIMINAL 
 
 CASES. 
 
 We have hitherto dealt with the plaintiff and de- 
 fendant as individuals, under no disability, who sue and 
 are sued singly and in theii' o^tl right. I proj^ose in 
 this chapter to examine the rights and liabilities of joint 
 plaintiffs and defendants, and also to deal with cases of 
 personal disability or disqualification, both in civil and 
 criminal cases. 
 
 Formerly the law and practice as to "parties" was of 
 the utmost importance, misjoinder of a plaintiff being 
 ground of nonsuit, while a non- joinder of a necessary 
 plaintiff was the subject of a plea in abatement. But now, 
 by Judicature Act, 1875, Order XIX., r. 3, "no plea 
 or defence shall be pleaded in abatement," and in Order 
 XVI., r. 13, the general princii^le is laid down, that 
 " No action shall be defeated by reason of the misjoinder 
 of parties, and the Court may in every action 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 proceedings, 
 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 name or names of any 
 party or parties, whether as plaintiffs or defendants, who 
 ought to have been joined, or whose presence before the
 
 HUSBAND AND WIFE. 345 
 
 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." But 
 such order will not as a rule be made where the party 
 applying for it is clearly to blame, or where a hardship 
 would thus be inflicted on his oj^ponent. And even 
 when such an order is made, it will generally be only 
 upon payment of all costs thereby occasioned. The im- 
 portance of this branch of the law is therefore scarcely 
 diminished. 
 
 It will be convenient to divide this chapter into the 
 following heads : — 
 
 1. Husband and Wife. 
 
 2. Infants. 
 
 3. Lunatics. 
 
 4. Bankrupts. 
 
 5. Eeceivers. 
 
 6. Executors and Administrators. 
 
 7. Aliens. 
 
 8. Master and Servant ; Principal and Agent. 
 
 9. Partners. 
 
 10. Corporation and Companies. 
 
 11. Other Joint Plaintiffs. 
 
 12. Joint Defendants. 
 
 I . Iliishand and Wife. 
 
 Whenever words actionable per se are spoken of a 
 married woman she may sue, but she must join her 
 husband's name as co-plaintiff. When the words are 
 not actionable per sc, 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
 
 346 THE LAW OF PERSONS. 
 
 husband, in consequence of such words, will not avail 
 her ; for such damage he alone can sue, although it is 
 her reputation that has been assailed. 
 
 If the wife has been divorced or judicially separated 
 from her husband, or has obtained a protection order 
 under the 20 & 21 Vict. c. 85, s. 21, she may sue as a 
 feme sole without joining her husband. (Eamsden v. Brear- 
 ley, L. E. 10 Q. B. 147 ; 44 L. J. Q. B. 46 ; 23 W. E. 
 294 ; 32 L. T. 24.) If, however, she be living separate 
 from her husband voluntarily, or under a deed of sepa- 
 ration, she must join her husband as a co-plaintiflt, even 
 though the special damage alleged be the loss of her own 
 personal earnings, which are now by the Married 
 "Women's Property Act, 1870 (33 & 34 Yict. c. 93), 
 s. 1, her separate estate. Though where the action is 
 brought solely "for the protection and security" of 
 such separate estate [e. g. an action for a libel upon her 
 in the way of her separate trade); there by s. 11 she 
 may sue alone. In the Chancery Division the practice 
 is for a married woman in all actions relating to her 
 separate estate to sue by her next friend, who will be 
 personally liable for the costs of the action, and to make 
 her husband a defendant. [Roberts v. Evans, 7 Ch. D. 
 830 ; 47 L. J. Ch. 469 ; 26 W. E. 280 ; 38 L. T. 99.) 
 But in the Common Law Divisions it is still practically 
 impossible for a wife to sue her husband. Under special 
 circumstances, however, a married woman may by leave 
 of a Master at Chambers sue without her husband and 
 without her next friend, on giving due secmity for 
 costs. (Order XVI., r. 8 ; Mariano v. Mann (C. A.), 
 14 Ch. D. 419 ; 49 L. J. Ch. 510 ; 42 L. T. 890.) 
 
 If the words be spoken of the woman before marriage, 
 the husband's name must still be joined on the writ ; if 
 she marry pending action, the husband should be made 
 a party under Order L., r. 2.
 
 HUSBAND AND WIFE. 347 
 
 If a married Avoman having gciiGral separate estate 
 fail in an action of libel, she may bo condemned in costs, 
 althongli her husband was joined as a co-plaintiff. 
 [Neivton and wife v. Boodle and others^ 4 C. B. 359 ; 18 
 L. J. C. P. 73 ; Morris v. Freeman and ivife.^ 3 P. D. 65 ; 
 47 L. J. P. D. & A. 79 ; 27 W. E. 62 ; 39 L. T. 125.) 
 
 Whenever the wife is the meritorious cause of action, 
 the right survives to her on her husband's death ; the 
 widow continues sole plaintiff and the action does not 
 abate. If, however, the wife dies before final judg- 
 ment, the action must cease ; it cannot be continued by 
 her husband either /z^'c mariti, or as her administrator. 
 
 In Scotland a married woman can sue for libel or slander 
 without joining her husband, a curator ad litem being ap- 
 pointed ; and so she can by special statute in New York and 
 Pennsylvania. But even in those States she cannot sue her 
 husband foi; slandering her. {Freethy v. Freethy, 42 Barb. 
 (N. Y.) 641 ; Tibhs v. Broivn, 2 Grant's Cas. (Penns.) 39). 
 
 If defamatory words be spoken of a married woman 
 and damage thereby follow to her husband, the husband 
 can sue for the damage that has ensued to himself : and 
 this whether the wife has suffered any special damage 
 also or not. Formerly he would have been compelled to 
 bring a separate action ; by the Common Law Pro- 
 cedure Act, 1852, s. 40, the husband 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 con- 
 cerned. And now, by Order XVII. , r. 4, '^ Claims by 
 or against husband and wife may be joined with claims 
 by or against either of them separately."
 
 348 THE LAW OF PERSONS. 
 
 This right of the husband to sue for words defamatory of his 
 Avife is somewhat anomalous, for liis reputation is in no 
 way assailed ; and though he has sustained damage, is it 
 not dam7ium 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 reputa- 
 tion of a husband is so intimately connected with that of his 
 wife, that he has always been allowed to sue whenever he has 
 received damage, just as though the words had been spoken 
 of him. 
 
 And it would seem that this right attaches even where the 
 words are not actionable per se ; so that if such words 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. That this is law, is clearly laid down 
 in Siderfin, 346, under the year 1667 : — " Nota, si parols queux 
 de eux m ne sont Actionable mes solement in respect del 
 collateral daiiis. sont pte. (paries) del feme covert, Le Baron 
 sole port L' action, et si le feme soit joyn ove luy le Judgment 
 serra pur ceo arrest, coment soit apres verdict." C^her cases of 
 that date turn almost entirely on points of pleading (e.g., 
 whether the declaration should end " ad damnum ipsius " or 
 " ad damnum ipsorum." (Haru'ood et ux. v. Hardwick et ux. 
 (1668), 2 Keble, 387; Coleman et ux. v. Harcourt (1664), 
 1 Levinz, 140 ; Grove et ux. v. Hart, (1752) B. N. P. 7.) But 
 so far as they decide any matter of principle, these cases are 
 not inconsistent with the above citation from Siderfin ; neither 
 is Russell et ux. v. Come, (1704) 1 Salk. 119; 6 Mod. 127; 2 
 Ld. Raym. 1031, which was at that date the leading case on 
 the subject of battery of a wife. And this view is certainly 
 confirmed by the recent case of Riding v. Smith, 1 Ex. D. 91 ; 
 45 L. J. Ex. D. 281 ; 24 W. R. 487 ; 34 L. T. 500 ; where the 
 wife's name was struck off the record by the judge at the trial, 
 and the husband recovered for tlie damage to his business 
 caused by words not actionable per se, spoken of his wife ; 
 though there it is true the judges of the Exchequer Division 
 base their judgment on the fact that Mrs. Riding helped lier 
 husband in the shop, and was therefore his servant or assistant 
 as well as his wife. It will clearlj^, therefore, be prudent for 
 the pleader to make a separate claim for damages for the hus-
 
 HUSBAND AND WIFE. 349 
 
 band in all cases of the class of Allsop v. Allsop, 5 H. & N. 
 534 ; 29 L. J. Ex. 315. 
 
 Illustrations. 
 
 Where words actionable jjcr S6 were spoken of a married woman, she was 
 allowed to recover only 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 the statement of claim in his wife's action. 
 Dengate and wife v. Gardiner, 4 M. & W. 5 ; 2 Jur. 470. 
 
 Where a married woman lived in service apart from her husband, main- 
 taining 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 (before the Married Women's Property Act, 1870). 
 Cotoard v. Wellington, 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 joined in the action at all. She would have 
 been held to have suffered no damage at all, her personal property belonging 
 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. 
 
 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 
 tradesmen refused her credit. After verdict for the plaintift", 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 ct ux. v. Sweemj, 4 B. & Adol. 514 ; 1 N. & M. 254. 
 
 And so in America where a married woman was living apart from her 
 husband iinder 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 h(dd this deed a good answer 
 to the action. 
 
 Beach et ux. v. Beach, 2 Hill (N. Y.), 260. 
 
 A married woman trading under her own name according to the custom 
 of London, may sue as a trader without joining her husband, for a libel on 
 her in the way of her trade. Per Brett, J., L. R. 9 C. P. 583. 
 
 A married woman carrying on a separate trade within the meaning of 
 the Married Women's Property Act, 1870, sect. 1, may by sect. 11 sue 
 without joining her husband for any tort affecting such separate trade or 
 her credit therein. 
 
 Summers v. City Banl; L. R. 9 C. P. 580 ; 43 L. J. C. P. 261.
 
 350 THE LAW OF PERSONS. 
 
 Where tlie liliel 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 consec[uence, evidence of such damage was excluded 
 in an action brought by the surviving husband alone. 
 
 Guy V. Grecjory, 9 C. h P. 584. 
 
 And see Wilson v. Goit, 3 Smith, (17 N. Y. R.) 445, anU, p. 313. 
 Words directly defamatory of the wife may also be defamatory of the 
 husband, who may therefore sue alone. Thus where defendant said to 
 plaintiff's wife : " You are a nuisance to live beside of. You are a bawd ; 
 and your house is no better than a bawdj''-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 ^^dfe. 
 
 Hiidde, V. Reynolds, 7 C. B. N. S. 114. 
 
 Coleman et ux. v. Harconrt, (1664) 1 Lev. 140. 
 
 And see Bash v. Somner, 20 Pennsylvania St. R. 159. 
 Where the defendant said to the plaintiff, an innkeeper, " Thy house is 
 infected with the pox, and thy wife was laid of the pox," it was held that 
 the husband could sue ; for even if smallpox only was meant, the words 
 were still actionable, " for it is a discredit to the plaintiff, and guests would 
 not resort hither." Damages ^50. 
 
 Level'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 
 
 Baldwin v. Flower, (1688) 3 ]\Iod. 120. 
 
 Grove et ux. v. Hart, (1752) B. N. P. 7. 
 
 For all libels published, or slanders uttered, by the 
 wife during coverture, her husband is liable, and must 
 alwaj^s be joined with her as a defendant. This is so, 
 even where the plaintiff wishes to charge the wages and 
 earnings of the wife, which are now her separate pro- 
 perty; for the Married "Women's Property Act, 1870, 
 makes no alteration in the position of a married woman 
 as defendant. (Hancocks cV Co. v. 3fadame Demeric- 
 Lahlache; 3 C. P. D. 197; 47 L. J. C. P. 514; 26 W. 
 E. 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 on this point the law has 
 recently been altered by the Married Women's Property
 
 HUSBAND AND WIFE. 351 
 
 Act Amendment Act, 1874 (37 & 38 Vict. c. 50), ss. 
 2, 5, which limit the liability of the husband for torts 
 committed by his wife dum sola to the extent merely of 
 the property which has vested in him by reason of the 
 marriage. Still the husband must be made a joint de- 
 fendant in every case, and must plead specially that no 
 property came to him with his wife, if such be the fact. 
 
 If the husband dies, the action continues against the 
 widow ; if however the wife dies in the lifetime of her 
 husband, the action immediately abates. If they be 
 divorced, the wife must be sued alone, even though the 
 words complained of were published before the divorce. 
 {Ciqjel V. Poiuell and another^ 17 C. B. N. S. 743; 34 
 L. J. C. P. 168 ; 10 Jur. K S. 1255 ; 13 W. E. 159 ; 
 11 L. T. 421.) So in the case of a judicial separation 
 (20 & 21 Vict. c. 85, ss. 25, 26.) But if the husband 
 and wife voluntarily live apart under a separation deed, 
 the common law rule prevails, and the husband must be 
 joined as a defendant. [Head v. Briscoe et ux. 5 C. & 
 P. 485; 2L. J. C. P. 101.) 
 
 A married woman Avill be held criminally liable for a 
 libel she has published. {R. v. Marfj Carlile, 3 B. & 
 Aid. 167.) Her coverture will, it seems, be no defence 
 to an indictment for a misdemeanour. [R. v. Ingram, 
 1 Salk. 384 ; R. v. Cruse and Mary his tuife, 2 Moo. C. C. 
 53; 8 C. &P. 541.) 
 
 Illustvations. 
 
 j Plaintiff sued Orchard and his wife for «hauderous words, the jury found 
 
 1 that Orchard had spoken the words, but not Mrs. Orchard. Judgment 
 
 I against the husband. It was moved in arrest of judgment that tlie speaking 
 
 of the words could not be a johit 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. 
 
 Burcher v. Orchard et ux.Xl652) Style, 349. 
 But see StvitJdn et ux. v. Vincent et ux. (17G4) 2 Wils. 227. 
 Mrs. Ilarwood slandered Mrs. ^Vhite ; wherefore White and wife sued
 
 352 THE LAW OF PERSOAS. 
 
 Harwood and wife. Pending action, Harwood died, and liis widow re- 
 married. The Court was very much puzzled, and gave no judgraent, appa- 
 rently, 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 under Order L. 
 r. 2 ; if not, the action would probably 1)6 held to abate : but it would 
 certainly be but little use continuing it. See the Married Women's 
 Property Act Amendment Act, 1874 (37 & 38 Vict. c. 50) s. 2. 
 
 JVliite et ux. V. Harwood et tix. (1648) Style, 138 ; Vin. Abr. 
 " Baron and Feme," A. a. 
 
 2. Infants. 
 
 An infant may sue by his next friend, as before the 
 Judicature Act. The next friend of an infant is per- 
 sonally liable for the costs of the suit [Calejj \. Calej/, 25 
 W. E. 528); but security for costs will not as a rule be 
 required from him, lest the infant should lose Lis rights 
 altogether. That an infant has been defamed gives his 
 parents no right of action, unless in some very excep- 
 tional 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 conse- 
 quence of the defendant's words. (See post, Master and 
 Servant, p. 358.) 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. 198 ; Il(dl v. Hollander, 4 B. & C. 6G0 ; 7 
 D. & R. 133 ; Evans v. Walton, L. R. 2 C. P. 615 ; 15 ;'| 
 W. R. 1062.) An infant defends by a guardian ad litem 
 apj^ointed ex parte by the Master or District Registrar 
 upon the infant's petition, supported by affidavit. Any^ 
 fit and proper person std jiiris im(i^Y\i\ml the jimsdic- 
 tion may be appointed, if he has no adverse interest. A 
 co-defendant in the same interest may be appointed. If 
 an infant defendant do not appear to a writ duly served, d
 
 INF A NTS. L UNA TICS. 3 5 3 
 
 the plaintiff may by virtue of Order XIII., r. 1, apply 
 ex parte to a Master or District Eegistrar, on an affidavit 
 of due service both of the writ and of notice of this 
 application, for an order appointing some proper person 
 guardian ad litem. A guardian ad litem is not liable for 
 costs, unless he has been guilty of gross misconduct. 
 
 The infancy of the defendant is of course no defence 
 to any action of tort not founded on contract. In 
 Defries v. Davies, 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 ^vill 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. Malitia supplet aetatem. But 
 much more than the j)roof of express malice ordinarily 
 given in cases of privilege would probably be required. 
 A child under seven cannot possibly commit any crime. 
 
 3. Lunatics. 
 
 It is almost inconceivable that an admitted lunatic 
 should bring an action of libel or slander. But, should 
 such an event hapj^en, he ought to sue by his next 
 friend, if he has not yet been found of unsound mind by 
 inquisition ; if he has been, then by his committee, 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 appointed in the same way 
 as in the case of an infant. (See ante^ p. 352, and Order
 
 354 THE LAW OF PERSONS. 
 
 XIII., r. 1.) Lunacy is in England no defence to an 
 action for slander or libel. i^Per KeUy, C. B., in 
 Mordaunt y. 3Iordaunt, 39 L. J. Prob. & Matr. 59.) 
 In 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 damage would be incurred." 
 But where the degree of insanity is slight, or not uni- 
 form, there evidence of it is only admissible in mitiga- 
 tion of damages. [DicJcinson v. Barher^ 9 Tyng (Mass.), 
 218 ; Yeates et ux. v. Reed et ux., 4 Blackford (Indiana), 
 463 ; Horner v. 3farsJialVs Administratrix, 5 Munford 
 (Vii'ginia), 466.) 
 
 A lunatic cannot be held criminally liable for a libel, 
 published under the influence of mental derangement ; 
 but the onus of proving this defence lies on the 
 accused. 
 
 4. Bankrupts. 
 
 An undischarged bankrupt may sue for and recover 
 damages for a personal wrong such as libel or slander, 
 nor will such damages j)ass to his trustee under s. 15 
 of the Bankruj^tcy Act, 1869. [Dotvling v. Browne, 
 (1854) 4 Ir. C. L. E. 265 ; Ex parte Vine, In re Wilson, 
 8 Ch. D. 364; 26 W. E. 582; 38 L. T. 730.) The 
 right of action is not assignable. (Benson v. Flower, Sir 
 Wm. Jones, 215.) A defendant if sued by a bankrupt 
 or one whose affairs are actually in liquidation is entitled 
 to have securitj^ given for the costs of the action. (Com 
 mon Law Procedure Act, 1852, s. 142. BrockJehank 
 ^' Co. V. King's Lynn Steamship Co., 3 C. P. D. 365; 
 47 L. J. C. P. 321 ; 38 L. T. 489.)
 
 EXECUTORS, ETC. 355 
 
 5. Receivers. 
 
 If receivers appointed by the Court of Chancery in an 
 administration suit to carry on a gazette, publish a libel 
 therein, they are of course personally liable to the 
 defendant 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. [Stuhhs V. 3farsh, 15 L. T. 312.) So in 
 America. {3farfcn v. Van Sc/iaic/c, 4 Paige, 479.) 
 
 6. Executors and Adtmnisfrators. 
 
 The maxim actio personalis cum persona moritur applies 
 to all actions of libel and slander. If, however, a verdict 
 be obtained, and then plaintiff die, his executor may 
 enter up judgment : (17 Car. II. c. 8 ; Palmer v. Cohen^ 
 2 B. & Adol. 966; cf. Krcmer v. Waymark, L. E. 1 Ex. 
 241 ; 35 L. J. Ex. 148 ; 12 Jur. N. S. 395 ; 14 W. E. 
 659 ; 14 L. T. 368.) Eut if interlocutory judgment be 
 signed and a writ of inquiry issue, and then plaintiif 
 die, final judgment cannot be entered (8 & 9 Will. III. 
 c. 11, s. 6; Ireland Y. Champneys, 4 Taunt. 884). And 
 the law on this point is in no way altered by Order L., 
 r. 1. But if final judgment has once been entered in 
 the plaintiff's favour, and then defendant appeals, the 
 action will not abate ; but the executors or administra- 
 tors of the late plaintiff may appear as respondents to 
 the appeal. {T'wijcross v. Grant and others (C. A.), 4 
 C. P. D. 40 ; 47 L. J. Q. B. 676 ; 27 W. E. 87 ; 39 
 L. T. 618.) So in America [Sandford v. Bennett^ 24 
 N. Y. 20). 
 
 A A 2
 
 356 THE LAW OF PERSONS. 
 
 7. Aliens. 
 
 An alien friend residing abroad may sne in England 
 for a libel or slander published of him in England. 
 (Pisani v. Lmvson, 6 Bing. X. C. 90 ; 5 Scott, 418.) 
 The place where the words were spoken or published is 
 the test of jurisdiction ; not the domicile of the plaintiff 
 or the defendant. (Order XL, r. 2.) But a foreign 
 plaintiff, if domiciled abroad, will be ordered to give 
 security for costs, unless he either has real property 
 Avithin jurisdiction available in execution, or is co- 
 plaintiff Avith others resident in England. Plaintiffs 
 resident in Scotland and Ireland are not, hoAvever, con- 
 sidered foreigners for this purpose (31 & 32 Vict. c. 54, 
 s. 5). 
 
 If, hoAvever, an English plaintiff goes to reside out 
 of jurisdiction during the action, he may be ordered to 
 give security for costs, and that for costs ah-eady in- 
 curred as well as past costs. [Masses/ v. Allen, 12 Ch. 
 D. 807 ; 48 L. J. Ch. 692 ; 28 W. E. 243.) On the 
 other hand, if an alien plaintiff happen to be within 
 jurisdiction at the date of the apj^lication, no order for 
 security for costs can be made against him, even though 
 it is admitted that he intends to return to the continent 
 as soon as the case is at an end. (Eedondo y. Cha//lor, 
 (C. A.) 4 Q. B. D. 453 ; 48 L. J. Q. B. 697 ; 27 W. E. 
 701; 40 L. T. 797.) 
 
 That the plaintiff is an outlaw is ground for staying 
 proceedings. (7v. v. Lowe and Clements, 8 Ex. 697 ; 22 
 L. J. Ex. 262.) But such stay Avill be remoA^ed on the 
 rcA'^ersal of the outlaAvry. [Somers y. Holt, 3 DoavI. 
 506.) But noAA' no person can be outlawed in any civil 
 proceeding. (42 & 43 Yict. c. 59, s. 3.) 
 
 Every foreigner within jurisdiction for however short
 
 ALIENS. 357 
 
 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 he has left England before the writ is issued, 
 plaintiff must apply, under Order XL, for leave to issue 
 a writ and give the defendant notice thereof in lieu of 
 service out of the jurisdiction. (Westmanx. AJctieholaget 
 cV'c, 1 Ex. D. 237 ; 45 L. J. Ex. 327 ; 24 W. E. 405 ; 
 Beddington v. Beddiiigton, 1 P. D. 426 ; 45 L. J. P. D. 
 44 ; 24 W. E. 348 ; 34 L. T. 366 ; Bustros v. Bustros, 
 49 L. J". Ch. 396 ; 28 W. E. 595.) (For the form of 
 such notice see Judicature Act, 1875, Appendix A., 
 form No. 3.) 
 
 But if the words be spoken out of jurisdiction, the fact 
 that they incidentally affect property within jurisdiction 
 is not sufficient to bring the case within Order XI. 
 
 Illustrations. 
 
 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. 
 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. 
 
 E. V. Jean Peltier, 28 Howell's St. Tr. 617.
 
 353 THE LAW OF PERSONS. 
 
 8. Master and Servant — Princijud and Agent. 
 
 If a servant or apprentice be libelled or slandered lie 
 can of course sue in his own rio'ht. 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 natiu'al consequence of the 
 words spoken has been to injure the master in the way 
 of his trade. And this aj^pears to be the law whether 
 the words be actionable 2^<^>' se or not. 
 
 Illustixitions. 
 
 If defendant tlireateu plaiutilf's -worlcmen, so that the}' dare not go on 
 with their work, and the plaintiff in consequence loses the profit he would 
 have made on the sale of liis goods, an action lies. 
 
 Garret v. Taylor, (1621) Cro. Jac. 567 ; 1 Roll. Abr. 108. 
 Bimngliead Spinniiuj Co. v. Riley, L. E. 6 Eq. 551 ; 37 L. J. Ch. 
 889 ; 16 W. R. 1138 ; 19 L. T. 64. 
 " Supi^using 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 shojamen 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 statement Avhicli 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 
 OAvner." Per Kelly, C.B., in 
 
 Fading v. Smith, 1 Ex. D. 94. 
 Mrs. Riding assisted her husband in bis shop ; words not actionable per se 
 were spoken of her which by natural consequence injured the trade of the 
 shop. Mrs. Riding sued the speaker, joining her husband for conformity. 
 At the trial it became clear that the only special damage was to the husband. 
 Thei'eupon the plaintiff's counsel applied to have the wife's name struck off 
 the record. The learned judge made the requii'ed amendment, and the 
 action then became an action by a master for injury to his business caused 
 by slander of his assistant in that business. Held, that the action lay. 
 
 Eidinfiv. Smith, 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 24 W. R. 487; 
 34 L. T. 500.
 
 MASTER AND SERVANT. 359 
 
 If any agent or servant be in any way concerned in 
 writing, printing, publishing, or selling a libel, he will 
 be both civilly and criminally liable. If a clerk or 
 servant copy a libel, and deliver the copy he has made 
 to a third jDerson, he will be liable as a publisher. That 
 his master or emj)loyer ordered him to do so, will be no 
 defence. (Fer Wood, B., in Maloneij v. Bartley, 3 
 Camp. 210.) " For the warrant of no man, not even of 
 the king himself, can excuse the doing of an illegal act ; 
 for although the commanders are trespassers, so are also 
 the persons who did the fact." [Per cur. in Sands, qui 
 tarn, Sfc, V. Child and others, (1693) 3 Lev. 352.) The 
 agent or servant cannot recover any contribution from 
 his employer [Merry iveather v. Nixan, 2 Sm. Lg. Cases 
 (8th Edn.) 546; 8 T. E. 186); and any promise to 
 indemnify him against the consequences of the publica- 
 tion, or against the costs of an action brought for the 
 libel, will be void. [Shackell v. Rosier, 2 Bing. IN". C. 
 634; 3Sc. 59.) 
 
 But it will be a defence if the agent or servant can 
 satisfy the jury that he never read the paper he de- 
 livered and was wholly ignorant that it was a libel ; e.g. 
 where a postman or messenger carries a sealed letter of 
 the contents of which he is not conscious. 
 
 So, too, a servant or agent will be liable for any 
 slander uttered on his master's behalf and by his master's 
 orders : but here he cannot set up as a defence that he 
 did not know his master's orders were illegal ; for he 
 must be conscious of what he himself is saying. 
 
 Illustrations. 
 
 A compositor will be criuiiiially liable for settiug up the type of a libel ; 
 so will the man whose business it is merely to clap down the press. 
 R. V. Knell (1728), 1 Barnard. 305. 
 E. V. CUrh, 1 Barnard. 304. 
 A porter who, in the course of business, delivers parcels containinp; 
 
 %
 
 36o THE LAW OF PERSONS. 
 
 libellous handbills, is not liable in an action for libel, if shown to be 
 ignorant of the contents of the parcel ; for he is bvit doing his duty in the 
 ordinary way. 
 
 Bay V. Brum, 2 M. & Rob. 54. 
 
 A master or principal will be liable to an action, if 
 false defamatory words be spoken or pnblished by bis 
 servant or agent with his authority and consent. The 
 mere fact that the actual publisher was the servant or 
 agent of the defendant is not alone sufficient ; for 
 authority to commit an unlawful act will not in general 
 be presumed. It must be further proved that the 
 servant or agent in speaking or publishing the defama- 
 tory words was acting in accordance with the express or 
 implied instructions of the defendant : the wrongful act 
 then becomes the master's by construction, being the 
 servant's in fact. 
 
 Where the instructions are exj)ress, there can be no difl&calt3\ 
 But the inclination of our Courts has of late years been not 
 to press the doctrine of implied authority so far as was done in 
 older cases. However, it is clear law that the proprietor of a 
 newspajoer is both civilly and criminally responsible for what- 
 ever appeal's in its columns, although the publication may have 
 been made without his knowledge, and in his absence. For he 
 must be taken to have ordered his servants to print and sell 
 whatever manuscript the editor might send them for that 
 purpose. The proprietor trusts to the discretion of the editor 
 to exclude all that is libellous ; if tlie editor fails in this duty, 
 still the paper will be printed and published by the proprietor's 
 servants, by virtue of his general orders. So if a master-printer 
 has contracted to print a monthly magazine, he will be liable 
 for any libel that may appear in any number printed at his 
 office. So every bookseller must be taken to have told his 
 shopmen to sell whatever books or pamphlets are in his shop 
 for sale ; if any one contain libellous matter, the bookseller is 
 (prima facie at all events) liable for its publication by his 
 servant by reason of such general instructions. But where a 
 master's orders are such that they can be obeyed without any
 
 AUTHORITY OF SERVANT. 361 
 
 illegality, lie is not liable because his servant chooses to carry 
 them out illegally and tortiously, even although the servant 
 honestly believes that he is best serving his master's interests 
 by thus executing his business. 
 
 But although the master has not authorised the act of 
 the servant, still if it was clone for his benefit and on his 
 behalf, he may subsequently ratify it. Oninis ratihibitio 
 priori mandato aequiparatur . But " in order that there 
 may be a valid ratification, there must be both a know- 
 ledge of the fact to be ratified, and an intention to ratify 
 it." [Per Keating, J., in Edwards v. London 6f N. W. 
 Ejj. Co., L. E. 5 C. P. 449.) The master must do some- 
 thing more than merely stand by, and let the servant 
 act. Non-intervention is not ratification. [Moon v. 
 Tozvers., 8 C. B. IS". S. 611 ; Weston v. Beeman and 
 another, 27 L. J. Ex. 57.) 
 
 IllustTations. 
 
 At a meeting of a board of guardians, at which reporters were present, 
 the chairman made a statement reflecting on the plaintiff, and added " I am 
 glad gentlemen of the press are in the room, and I hope they will take 
 notice of it : publicity should be given to the matter." A report accordingly 
 appeared in two local papers. Held, by the majority of the Exchequer 
 Chamber (three judges against two) that there was some evidence to go to 
 the jury that the defendant had expressly authorised the publication of the 
 alleged libel in the newspapers. 
 
 ParAe.5 v. Prescott d; another, L. K. 4 Ex. 169 ; 38 L. J. Ex. 105 ; 
 
 17 W. R. 773 ; 20 L. T. 537. 
 See also B. v. Cooper, 8 Q. B. 533 ; 15 L. J. Q. B. 206. 
 Tarpley v. Blabey, 2 Bing. N. C. 437 ; 2 Scott, 642 ; 1 Hodges, 
 414. 
 The defendant's daughter, a minor, was autiiorised to make out his bills 
 and write his general business letters : she chose to insert libellous matter 
 in one letter. Tlie lather was held not lialile for the wrongful act of his 
 daughter, in the absence of any direct instructions. 
 
 Hardiwj v. Greening, 8 Taunt. 42 ; 1 Moore, 477 ; 1 Holt N. P. 
 
 531. 
 See Moon v. Toioers, 8 C. B. N. S. 611. 
 The defendant Moyes regularly printed Fraser's Magazine; but had nothing 
 to do with preparing the illustrations. One number contained a libellous
 
 362 THE LAW OF PERSONS. 
 
 lithogra])lnc print. The defendant, the printer, was held liable for this print, 
 though he had never seen it ; because it was referred to in a part of the 
 accompanying letterpress, \^'hich had been printed by his servants. A 
 rule on this jioint was refused. The editor was of course liable also. 
 
 Watts V. ¥ni&cr & Moyes, 7 C. & P. 369 ; 7 A. & E. 223 ; 1 Jur. 
 671 ; 1 M. & Rob. 449 ; 2 N. & P. 157 ; W. W. & D. 451. 
 The proprietor of a newsj^aper will be held liable for an accidental slip 
 made by his printer's man Li setting up the type. 
 
 ShqjJteard v. Whitaker, L. R. 10 C. P. 502 ; 32 L. T. 402. 
 And for a libellous advertisement inserted by the editor without his 
 knowledge. 
 
 Harrison v. Pcarce, 1 F. & F. 567 ; 32 L. T. (Old S.) 298. 
 The proprietor of a newspaj^er in America on going away for a holiday 
 expressly instructed his acting editor to publish nothing exceptionable, 
 personal or abusive, and warned him especially to scan very particularly 
 any article brought in by B., who was known to be a "smart" writer. The 
 editor [permitted an article of B.'s to appear which contained Libellous 
 matter. The proprietor was held liable though the publication was made 
 in his absence and without his knowledge. 
 
 Dunn V. Hall, 1 Carter, (Indiana) 345 ; 1 Smith, 288. 
 
 HuffY. Bennett, 4 Sand. (New York) 120. 
 
 Curtis V. Musseij, 6 Gray, (Mass.) 261. 
 
 Andres v. TVells, 7 Johns. (New York) 260. 
 
 A master or principal is criminally liable for any libel 
 publislied by his servant or agent with, his authority or 
 consent. At common law he is even criminally liable 
 for snch libel, although he had no knowledge of what his 
 servant -s^-as doing, if his servant was acting in pursu- 
 ance of general orders. Thus, whenever an employer is 
 civilly liable for a libel published by his servants, he is, 
 apart from Lord Camj^bell's Act, criminallj^ liable also. 
 Indeed, in ParJccs v. Prescott and another, (Exch. Ch.) 
 L. E. 4 Ex. 169 ; 38 L. J. Ex. 105 ; 17 W. E. 773 ; 20 
 L. T. 537, Byles, J., asserts that the criminal liability of 
 the master may be more extensive than his civil lia- 
 bility : — " There is a great distinction between the 
 authority which will make a man liable criminally and 
 the authority which will make him liable civilly. A 
 principal is not civilly liable for the acts of his agent, 
 unless the agent's authority be by the agent duly pui'sued;
 
 PUBLICAriON BY SERVANT. 363 
 
 but the principal may be criminally liable though the 
 agent have deviated very widely from his authority." 
 And the learned Judge, wliile approving of R. v. Cooj^er^ 
 8 Q. B. 533 ; 15 L. J. Q. B. 206, as a decision in criminal 
 law, refused to follow it as any authority in a civil case. 
 But this view was not adopted by the rest of the Court. 
 The criminal liability of a master or principal for a 
 libel published by his servant or agent without his 
 knowledge or consent is now defined by s. 7 of Lord 
 Campbeirs Act (6 & 7 Yict. c. 96), by which it is 
 enacted '' that whensoever, upon the trial of any indict- 
 ment 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 his autho- 
 rity, consent, or knowledge, and that the said publication 
 did not arise from want of due care or caution on his 
 23art." This enactment applies only to criminal cases, 
 and it may be questioned vrhether it altered or only 
 declared, the existing criminal law. (See B. v. Almouj 
 5 Burr. 2686.) The only reported case on this section is 
 II. V. HolhrooJc and others, 3 Q. B. D. 60 ; 47 L. J. Q. 
 B. 35; 26 W. E. 144; 37 L. T. 530 ; 13 Cox, C. C. 
 650; 4 Q. B. D. 42; 48 L. J. Q. B. 113; 27 W. E. 
 313 ; 39 L. T. 536 ; 14 Cox, C. C. 185. 
 
 IlliLstvations. 
 
 The clefendcant kept a pamphlet-giliop : slie was sick and upstairs in bed : 
 a liljel was brought into the shop without her knowledge, and subsequently 
 soM by her servant on her account. She was held criminally liable for the 
 .1' I of her servant, on the ground that "the law presumes that the master 
 is acquainted with what his servant does in the course of his business," 
 R. V. Dodd, 2 Sess. Cas. 33. 
 Nutt's Case, Yitz-' 47 : Barnard. K. B. 306. 
 
 1^
 
 364 THE LAW OF PERSONS. 
 
 But I doubt if later judges would have been quite so strict : the sickness 
 upstairs would surely have been held an excuse, even before the 6 & 7 Vict, 
 c. 96, s. 7, became law. See 
 
 i?. V. Almon, 5 Burr. 2686. 
 A libel was published in a London newspaper, T/ic Morning Journal. At 
 the time of publication, Mr. Gutch, one of the proprietors, was away ill in 
 Worcestershire, in no way interfering with the conduct of the paper, which 
 was managed entirely by Alexander. Lord Tenterden directed the jury to find 
 Gutch guilty, on the ground that it was on his capital that the paper was 
 carried on, that he derived profit from its sale, and he had selected the 
 editor who had actuallj- inserted the libel. Lord Tenterden the next day 
 admitted (j^. 438) that some possible case might occur in which the pro- 
 prietor of a newspajjer might be held not criminally answerable for a libel 
 Avhieh had appeared in it. Gutch was con-\dcted, but subsequently dis- 
 charged on his own recognizances. 
 
 R. V. Gutch, Fisher <£• Alexander, Moo. & Mai. 433. 
 
 R. Y. Walter, 3 Esp. 21. 
 
 And see Attorney-General v. Sicldon, 1 Cr. & J. 220. 
 The defendants were the proprietors of the Portsmouth Times and Naval 
 Gazette ; each of them managed a diflerent department of the newspaper, 
 but the duty of editing what was called the literary department was left 
 by them entirely to an editor Avhoni they had appointed, named Green. 
 The libel in question was inserted in the paj^er by Green without the 
 express authority, consent, or knowledge of the defendants. At the trial 
 of a criminal information the judge directed a verdict of guilty against the 
 defendants. Held, by Cockburn, C.J., and Lush, J., that there must be a 
 new trial, for upon the true construction of 6 & 7 Vict. c. 96, s. 7, the libel 
 was published without the defendants' authority, consent, or knowledge, 
 and it was a question for the jury whether the publication arose from any 
 want of due care and caution on their part. By Mellor, J., dissenting, that 
 the defendants, having for their own benefit employed an editor to manage 
 a particular department of the newsjiaper, and given him full discretion as 
 to the articles to be inserted in it, must be taken to have consented to the 
 publication of the libel by him : that 6 & 7 Vict. c. 96, s. 7, had no applica- 
 tion to the facts proved, and that the case was properly withdrawn from 
 the jurv. 
 
 R. V. Holhrooh cD others, 3 Q. B. D. 60 ; 47 L. J. Q. B. 35 ; 26 
 W. E. 144 ; 37 L. T. 530 ; 13 Cox, C. C. 650. 
 On the new trial Green was called as a witness, and stated that he had 
 general autliority to conduct the paper, that the defendants left it entirely 
 to his discretion to insert what he pleased, and that he had allowed the 
 letter complained of to appear in the j^aper without the knowledge or 
 exjiress authority of the defendants, one of whom was absent from Ports- 
 mouth at the time. The jury found all the defendants guilty. On a 
 motion for a new trial on the ground that the verdict was against evidence, 
 and of misdirection, Held (by Cockburn, C.J., and Lush, J., Mellor, J., still 
 dissenting), that the general authority given to the editor was not fcr > 
 evidence that the defendants had authorised or consented to the pubUcatici:
 
 SPECIAL DAMAGE. 313 
 
 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, occa- 
 sioning sickness and an interruption of al)ility to attend to their ordinary 
 avocations." 
 
 Terivilliger v. TFands, 3 Smith (17 N. Y. R.) 54, over-ruling 
 
 Bradt v. Toivsky, 13 Wend. 253, and Fnller 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 i^er se being spoken of her by the defendant. For the 
 
 wife, if sole, could have maintained no action. " The facility with Avhicli 
 
 a right to damages could be established by pretended illness where none 
 
 exists, constitutes a serious olgection to such an action as this." Per 
 
 Denio, J., in 
 
 Wilson V. Goit, 3 Smith (17 N. Y. R.) 445. 
 
 Special damage must always be explicitly claimed on 
 the pleadings and _strictly proved at the trial. And 
 wher e the words aTejiotj iction able_j;gr 5r, the plaintifi 
 will be confined to the special dama p^e laid; he must 
 either pr ove that, or be nonsu ited ; he cannot fall back 
 on general damages, as he can w her^the words are ac- 
 tionable per se. For there are no general damages to fall 
 back on ; ex hjpotliesi the words are such as the law will 
 not presume injurious. And so, too, where the special 
 damage is proved, the jury should strictl}" find a verdict 
 for the amount of such special damage merely, for the 
 sum that the plaintiff has proved he has lost and no 
 more. The jury ought not to compensate the plaintiff 
 foi^'pain, mental anxiety, or a general loss of reputation, 
 but should confine their assessment to the , actual pe- 
 cuniary loss that has hccni alleged and proved. [Dixon 
 X^nith, 5H. & N. 450; 29 L. J. Ex. 125.) Tins 
 rule, however, is fi-equently neglected in practice ; and , 
 as soon as any special damage is proved, the words are ,* 
 treated as though they were actionable ^^6'r se. 
 
 To allege generally that in consequence of the de-
 
 314 DAMAGES. 
 
 fendant's words the plaintiff has lost a large sum of 
 money, or tliat his practice or business has declined, is 
 not a sufficiently precise allegation of spec ial da mage. 
 The names of tlio 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 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 witholding their 
 custom was in consequence of defendant's words ; it 
 might well be due to some other cause. {Fer Lord 
 Kenyon, C-. J., in Ashley v. Harrison, 1 Esp. 48 ; Peake, 
 256 ; 2^e^' I^est, C. J., in TWc v. Parsons, 2 C. & P. 201.) 
 ' Loss of custom or diminution of j)rofits, when not speci- 
 (^ fically alleged, and the customers' names assigned, is 
 ) general, not special, damage, and can only therefore be 
 ) proved where the words are actionable per se. [Harrison 
 V. Pearce, 1 F. & P. 567 ; 32 L. T. (Old S.) 298.) ^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. 
 
 ? 
 
 The loss to the plaintiff must be directly connected with the 
 defendant'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 should never be required 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. 317. And in Riding v. Smith,
 
 LOSS OF CUSTOM. 315 
 
 1 Ex. D. 91 ; 45 L. J. Ex. 281 ; 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, 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 a ction on the ca se, and not an 
 action of defamation. It is clear, therefore, that the late Lord 
 Chief Baron did not moan to lay down any general rule, and 
 that Riding v. S mith is not to be regarde d as an authority 
 in actions of defamation, but merely as an exceptional case 
 depending upon its own peculiar facts. In a very similar case, 
 Kent V. Stone, Bristol Summer Assizes, 1880, Lord Coleridge, 
 0. J., refused t£ follow Riding y._Sriiit h on this p oint ; as being 
 contrary to all previous decisions. In Clarke v. Morgan, 38 
 L. T. 354, Grove, J., points out the_anomaly which would follow 
 if the rule in Riding v. Smith were universally carried out. 
 The defendant has sjDoken to A. words which are not actionable 
 2)erse; i.e., Avords of such a character that the law will not 
 presume that they can injure the plaintiff. A. I'epeats them to 
 B., B. to C, C. to D., and so on, till 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 plaintitf damages for the loss of A.'s custom, A. being the 
 one man to Avhom defendant spoke. {Dixon v. Smith, 5 H. & 
 N. 450 ; 29 L. J. Ex. 125 ; Bateman and Wife v. Lyall and 
 Wife, 7 C. B. N. S. G38 ; Hirst v. Goodivin, 3 F. & F. 257.) 
 And yet, by merely keeping them out of the box, the plaintiff 
 would (if Riding v. Smith be adopted as a general authority 
 in cases of slander) illegally recover 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 Parkins v. Scott have in no way been overruled 
 by Riding v. Smith and Evans v. Harries. As a rule, words 
 which cause loss of custom to a trader are spoken of him in the 
 way of liis trade, and are therefore actionable ^^er se. And in 
 other cases of special damage there is no possible hardship in 
 the old rule ; for the plaintiff must be aware of the names of
 
 3i6 DAMAGES. 
 
 the master wlio has dismissed him, and of the friends "who 
 formerly showed him hospitality. 
 
 Illiistraiions. 
 
 The plaintiff alleged that in conse(|uence of the defendant's slander, she 
 had " lost several suitors." This was held too general an allegation : for 
 the names of the suitors could hardly have escaped the plaintiff's memory. 
 Barnes v. Prudlin, vcl Bruddd, 1 Sid. 396 ; 1 Ventr. 4 ; 1 Lev. 
 
 261 ; 2 Keb. 451. 
 See also, Hunt v. Jones, Cro. Jac. 499. 
 
 Davies and TVifev. Solomon, L. E. 7 Q. B. 112 ; 41 L. J. Q. B. 10 ; 
 20 W. E. 167 ; 25 L. T. 799. 
 The defendant slandered a dissenting minister, who averred that his con- 
 gregation diminished in consefiuence. Held, too general an 'averment to 
 constitute special damage, the names of the absentees not being given. 
 
 Hoimood V. ' Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 
 Such an averment Avonld have been sufficient, had the words been spoken 
 of the plaintiff in the way of his office, and so actionable per se. 
 HaHley v. Herring, 8 T. E. 130. 
 Evans v. Harries, 1 H. & N. 254 ; 26 L. J. Ex. 31. 
 Dawes intended to employ the plaintiff, a surgeon and accoucheur, at his 
 wife's approaching confinement ; bftt the defendant told Dawes that the 
 plaintiff's female servant had had a child by the plaintiff : Dawes conse- 
 (|uently decided not to employ the plaintiff' : Dawes told his mother and 
 his wife's sister what defenclant had said ; and consequently the plaintiff's 
 practice fell off considerably among Dawes' friends and acc^uaintance and 
 others. The fee for one confinement was a guinea. Held,t\\&t the plaintiff' 
 was entitled to more than the one guinea ; the jury should give him such a 
 sum as they considered Dawes' custom was worth to him ; but that the 
 plaintiff clearly could not recover anything for the general decline of his 
 business, which was caused by the gossip of Dawes' mother and sister-in- 
 law. 
 
 Dixon V. Bmith, 5 H. & N. 450 ; 29 L. J. Ex. 125. 
 
 The law is the same in America : — 
 
 The plaintiff' alleged that the defendant's Avords 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. E. 563 ; 65 Barbour 627. 
 So where the allegation was merely that by reason of defendant's words 
 " the j)laintiff had been slighted, neglected, and misused by the neighbours 
 and her former associates, and turned out of doors." 
 Pettihone v. Simpson, 66 Barb. 492. 
 A general allegation that by reason of defendant's acts, plaintiff hatl been
 
 SUBSEQUENT DAMAGE. 317 
 
 compelled to pay a large sum of money, without showing how, was held 
 insufficient. 
 
 Gooh V. Gook, 100 Mass. 194. 
 
 Follani v. Lyon, 1 Otto (91 U. S.) 225. 
 
 But in Australia a different rule apparently prevails : — 
 
 To say to tlie keeper of a restaurant, " You are an infernal rogue and 
 swindler," was held, in the Supreme Court of Victoria, not actionable with- 
 out 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 suffi- 
 ciently alleged ; that the cases of frequenters of theatres, members of con- 
 gregations, and travellers using an inn, were exceptions to the rule requiring 
 the names of the customers lost to be set forth. 
 
 Bmihj V. Youlden, Kerferd & Box's Digest of Victoria Cases, 709 ; 
 Mellwurne Argus Reports, 6 Sept. 1867, sed quare. 
 
 Where the words are not actionable without special damage, 
 the jury, as we have seen, must confine their consideration to such 
 special damage as is specially alleged and proved. It might, 
 therefore, very well be argued, on the principle of Bonomi v. 
 BacMiouse, 9 H. L. C. 503 ; E. B. & E. 6G2 ; 34 L. J. Q. B. 181, 
 that if any fresh damage followed in the future, that would con- 
 stitute a fresh ground of action. And of this opinion were 
 North, G. J., in Lord Townsheml v. Hughes, 2 Mod. 150, and 
 Tindal, C. J., in Goslin v. Gorry, 7 M. & Gr. 345 ; 8 Scott N. R 
 21. But BuUer, in his " Nisi Prius," p. 7, lays it down most 
 distinctly, that where a plaintiff " has once recovered damages, 
 he cannot after bring an action for any other special damage, 
 whether the words be in themselves actionable or not." {Fitter 
 v. Veal, 12 Mod. 542.) And this rule is obviously more practi- 
 cally convenient : it is also in accordance with recent cases, such 
 as Stone v. Mayor of Yeovil, 1 C. P. D. 691 ; 45 L. J. C. P. 657 ; 
 24 W. R. 1073 ; 34 L. T. 874 ; (C. A ) 2 C. P. D. 99 ; 46 L. J. 
 G. P. 137; 25 W. B. 240 ; 36 L. T. 279, and Lamb v. Walker, 
 3 Q. B. D. 389 ; 45 L. J. Q. B. 451 ; 26 W. B. 775 ; 38 L. T. 
 643, and must therefore, I think, be considered good law.
 
 3i8 DAMAGES. 
 
 V. — Special Damage where the woeds are 
 
 ACTIOJs^ABLE, l)Cr SC. 
 
 "Where special damage is not essential to tlie action, 
 it may still of course be proved at tlie trial to aggravate 
 tlie damages. But to entitle sucli evidence to be given, 
 tlie special damage relied on must be stated on the 
 record Avitli the same particularit}- as is required where 
 the words are actionable only by reason of such special 
 damage. The defendant is entitled to know beforehand 
 Avhat case he has to meet. Thus, in an action bj^ a 
 trader for words spoken of him in the way of his trade, 
 evidence of a general loss of business is always admis- 
 sible ; for this is not sj)ecial damage. But the plaintiif 
 cannot be asked whether particular persons have not 
 ceased to deal with him, unless the loss of their special 
 custom is set out in the ^^leadings as special damage. It 
 is clearly right that the defendant should be furnished 
 with their names before the trial. 
 
 But though the sj)ecial damage must be laid as ex- 
 plicitly whether the Avords be actionable or not, it seems 
 that in other respects the law is not quite so strict as to 
 what constitutes special damage in the first case as in 
 the second. Thus, where the words are not actionable 
 ]}er se, we have seen that mental distress, illness, expul- 
 sion from a religious society, &c., do not constitute 
 special damage. But where the words are actionable 
 per se, the jury may take such matters into then* con- 
 sideration in according damages. "Mental pain or 
 anxiety the law cannot value, and does not pretend to y 
 redress, Avhen the unlawful act complained of causes 
 that atone ; though where a material damage occurs, and 
 is connected Avith it, it is impossible a jury, in esti- 
 mating it, should altogether overlook the feelings of the 
 
 I
 
 SPECIAL DAMAGE. 319 
 
 party interested." (Per Lord Wensleydale, in Ljjncli v. 
 Knight and wife^ 9 H. L. C. 598. See also Ila/jthoni v. 
 Lawson^ 3 C. & P. 196; Le Fanii v. Malcolmson^ 8 Ir. 
 L. E. 418.) And had tlie charge against Mrs. Eoberts 
 been one of felony I do not think any Jndge wonld have 
 excluded the evidence as to her expulsion from her reli- 
 gious sect. 
 
 Again, where words are spoken of the plaintiff in 
 the way of liis profession or trade, so as to be action- 
 able jjer se, the plaintiff may allege and ]3rove a general 
 diminution of profits or decline of trade, without naming 
 particular customers or proving they have ceased to deal 
 with him. (Ashley/ v. Ilat-rison, 1 Esp. 48 ; Peake, 256 ; 
 Ingram v. Laivson, 6 Ping. I^. C. 212 ; 8 Scott, 471 ; 
 4 Jur. 151 ; 9 C. & P. 326 ; Harrison v. Pearce, 1 F. & 
 F. 569, 32 L. T. (Old S.) 298.) [In Delegal v. Ilighleg, 
 8 C. & P. 448, Tindal, C. J"., refused to allow any evi- 
 dence to be given of general loss of business, on the 
 ground that the law akeady presumed such loss in the 
 plaintiff's favour; but this decision must now be con- 
 sidered over-ruled.] If, however, the plaintiff' desires 
 to go into such details at the trial, he must 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 may still fall back on the general damage 
 and prove a loss of income induced by the slander. 
 [Cook V. Field^ 3 Esp. 133 ; Evans v. Harries^ 1 H. & jST. 
 251 ; 26 L. J. Ex. 31.) This he could not do, had the 
 words not been actionable ^?<?/' se : see ante^ pp. 313 — 317. 
 But where it is clear that the action lies, and that the 
 juiy must find damages to some amount for the j^laintiff, 
 evidence as to the nature and extent of plaintiff'' s busi- 
 ness before and after publication is necessary to enable 
 the jury to fix the amount of damages.
 
 320 DAMAGES. 
 
 Illustrations. 
 
 Where the defendant published in a newspaper that a certain ship of the 
 pkintifF's was nnseawortliy, 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 first voyage after the libel appeared the profits 
 were nearly £1500 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. Laicson, 6 Bing. N. C. 212 ; 8 Scott, 471. 
 Goslin V. Corrij, 7 M. & Gr. 342 ; 8 Scott, N. R. 21. 
 Where a declaration alleged that the defendant spoke words of the plaintiff, 
 a dissenting minister, in the way of his office and profession, and his con- 
 gregation 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 con- 
 gregation were not named. 
 
 Hartley v. Herring, 8 T. R. 130. 
 
 Hojnvood V. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87. 
 Where words actionable per se are spoken of an innkeeper in the Avay 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 saying 
 his 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 
 
 Evans v. Harries, 26 L. J. Ex. 32. 
 
 And see Weiss v. JVIiittemore, 38 Michigan 366. 
 
 Where the words are actionable without S23ecial 
 damage, the jury must assess the damages once for all : 
 for no fresh action can be brought should fi-esh damage 
 follow. They should therefore take into consideration 
 not only the damage that has accrued, but also such 
 damage, if any, as will arise from the defendant's defa- 
 matory words in the future. [Fitter v. Veal, 12 Mod. 
 642 ; B. I^. P. 7 ; Lord Toiunshencl y. Hughes^ 2 Mod. 
 150 ; Ingram v. Lawson, 6 Bing. N. C. 212 ; 8 Scott, 
 471 ; 4 Jur. 151 ; 9 C. & P. 326 ; Gregory and another 
 V. Williams, 1 C. & K. 568.)
 
 REMOTENESS. 
 
 321 
 
 VI. — Eemoteness of Damages. 
 
 The special damage alleged must be the natural and 
 probable result of the defendant's wrongful conduct. In 
 some cases it can be shown that the defendant contem- 
 plated 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 the 
 defendant must fairly be taken to have contemplated it, 
 whether in fact he did so or not. But where the 
 damage sustained by the plaintiff is neither the neces- 
 sary and reasonable result of the defendant's conduct, 
 nor such as can be shoAvn to have been in the defendant's 
 contemplation at the time, there the damage will be 
 held too remote. Evidence cannot be given at the trial 
 of any special damage unless it either flows from de- 
 fendant's words in the ordinary course of tilings, or 
 through special circumstances known to the defendant 
 may be supposed to have been in his contemplation at 
 the date of jrablication. 
 
 The special damage must be the direct result of the 
 defendant's words. The jmy may not take into their 
 consideration any damage which is produced partly by 
 the defendant's words and partly by some other fact or 
 circumstance unconnected with the defendant. The 
 defendant'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. 
 discovered from another source that the plaintiff's former master had dis- 
 
 Y
 
 322 DAMAGES. 
 
 missed him for misconduct. Thereupon B. discharged the plaintiff in the 
 middle of the term for which he had engaged his services. Held 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 and wife, 9 H. L. C. 590, 600. 
 The plaintiff alleged that certain persons would have recommended him 
 to X., Y., & Z., liad not the defendant spoken certain defamatory words 
 of him on the Eoyal Exchange, and that X., Y., & Z. would, on tlie 
 recommendation of those persons, have taken the plaintiff into their 
 employment. The plaintiff claimed damages for the loss of the employ- 
 ment. Such damage was held too remote, for it was caused by the non- 
 recommendation, not by the defendant's words. 
 
 Sterry v. Foreman, 2 C. & P. 592. 
 
 And see Hoey v. Felton, 11 C. B. N. S. 142 ; 31 L. J. C. P. 105. 
 In an action of slander of title to a patent, tlie 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 plaintiff. 
 
 Haddon v. Lott, 15 C. B. 411 ; 24 L. J. C. P. 49. 
 
 Kerr v. Shedden, 4 C. & P. 528. 
 The plaintiff engaged Mdlle. Mara to sing at his concerts ; the defendant 
 libelled Mdlle. Mara, who consequently refused to sing lest she should be 
 hissed and ill-treated ; the result was that the concerts were more thinly 
 attended than they otherwise would have been, whereby the plaintiff lost 
 mone3^ Held that the damage to the plaintiff was too remote a consequence 
 of defendant's words to sustain an action by the plaintiff. It was, in short, 
 not so much the result of defendant's words as of Mdlle. Mara's timidity or 
 caprice. 
 
 Ashley V. Harrison, 1 Esp. 48 ; Peake, 256. 
 
 And see Tarleton v. McGawley, Peake, 270. 
 
 Taylor v. Neri, 1 Esp. 386. 
 
 Lumley v. Gye, 2 E. & B. 216. 
 The defendant, having had a c^uarrel in tlie street with a negro boy, took 
 up a pick-axe and pursued him into the plaintiff's store, where the boy was 
 employed. The negro being alarmed, and not able to escape rapidly 
 by the back door, which was shut, ran behind the counter to save himself 
 from being struck, and in so doing knocked out the faucet from a cask of 
 wine standing there, a quantity of which ran out and was wasted. The 
 Supreme Court of the State of New York held that the defendant was 
 liable to the plaintiff for this loss ; the damage in question being, in their 
 opinion, the direct and natural, though not the necessary result of the 
 wrongful act of the defendant. 
 
 Vandenhunj v. Truax, 4 Denio, (X. Y.) 464. 
 
 Clark V. Chambers, 3 Q. B. D. 327; 47 L. J. Q. B. 427; 26 W. R. 
 613 ; 38 L. T. 454. 
 The defendant insinuated that the plaintiff had Ijeen guilty of the murder
 
 REMOTENESS. 323 
 
 of one Daniel Dolly ; the plaintiff thereupon demanded that an inquest 
 should be taken on Dolly's body, and incurred expense thereb3^ Held that 
 such expense was recoverable as special damage ; though it was not compulsory 
 on the plaintiff to have an inquest held. 
 
 Penke v. Oldham, Cowp. 275 ; 2 W. Bl. 960, 
 The defendant said to Mr. Knight of his wife Mrs. Knight, " Jane is a 
 notorious liar .... she was all but seduced by a Dr. C, of Roscommon, 
 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 
 misfortune 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 
 not the natural or reasonable consequence of defendanVs slander. Secus, 
 had the words imputed actual adultery since the marriage. 
 
 Allsoj) V. Allsop, 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 6 Jur. N. S. 
 433 ; 8 W. E. 449 ; 36 L. T. (Old S.) 290. 
 
 Affirmed in Lynch v. Knight and wife, 9 H. L. C. 577. 
 
 Parkins et ux. v. Scott et nx., 1 H. & C. 153; 31 L. J. Ex. 331 ; 
 8 Jiir. N. S. 593 ; 10 ^Y. R. 562 ; 6 L. T. 394, post, p. 330. 
 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 prevented from obtaining employment in his trade at Llanelly. Held, 
 on demurrer, 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. Darid, L. R. 9 ( !. P. 118; 43 L. J. C. P. 84 ; 22 W. R. 
 332 ; 30 L. T. 58. 
 
 Damage whicli lias resulted to A. in consequence of 
 the defendant's having defamed B., is too remote to 
 constitute special damage in any action brought by B. 
 Whether A., who has himself suffered the damage, can 
 sue, depends upon the closeness of the relationship 
 between A. and B. If A. is B.'s master, A. may have 
 an action on the case per quod scrvitium amisit. If A. is 
 B.'s husband, then it is clear law, that the husband may 
 sue for any special damage which has accrued to him 
 thi-ough the defamation of his wife. But a wife cannot 
 
 Y 2
 
 324 DAMAGES. 
 
 recover for any special damage which •words spoken of 
 her have inflicted on her hnsband. {Harwood et ux. v. 
 Hardiviclc et ux. (1668), 2 Keble, 387.) 
 
 This rule presses very harshly upon married women ; for 
 before the Married Women's Property Act there was hardly any 
 special damage which they could suffer. Their earnings were 
 their husband's ; so was their time. Lord Wensleydale, in 
 Lynch v. Knight & ivife, 9 H. L. C. 597, even doubted if 
 loss of consortium of her husband was such special damage as 
 would sustain an action of slander by a wife. Loss of the society 
 of her friends and neighbours clearly is not. The only special 
 damage in fact which a married woman could set up was loss of 
 hospitality. And even in conceding her this, the judges seemed 
 to be straining the law, for her husband was bound to maintain 
 her : so that such gratuitous entertainment was really a saving 
 to the husband's pocket. But in Davies v. Solomon, L. R. 7 
 Q. B. 112 ; 41 L. J. Q. B. 10; 20 W. K. 107; 25 L. T. 799, 
 the judges declined to scrutinize too nicely into such matters : 
 and no doubt the loss is really the wife's. Her friends would 
 supply her with better and other food than that which the law 
 compels her husband to afford her. The operation of the 
 Married Women's Property Acts, 1870 and 1874, may lessen 
 the hardship. In some cases the difficulty might perhaps have 
 been obviated, had the husband sued alone. 
 
 Illustrations. 
 
 If one partner be libelled he cannot recover for any special damage which 
 has occurred to the firm. 
 
 Solomons & others v. Medex, 1 Stark. 191. 
 
 Eobmson v. Marchant, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 
 156. 
 Similarly, if the firm be libelled as a body, tliey cannot jointly recover 
 for any private injury to a single partner : thoixgh that partuer may now 
 recover his individual damages in the same action. 
 Haythorn v. Laivson, 3 U. & P. 196. 
 
 Le Fanu v. Malcolmson, 1 H. L. C. 637 ; 8 Ir. L. K. 418 ; 13 
 L. T. 61. 
 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 his 
 wife suffered greatly in her mind in conseriuence and became ill and died,
 
 ACT OF A THIRD PARTY. 325 
 
 evidence of sucli damage was excluded in an action brought by the sur- 
 W^dng husband. 
 
 Guy V. Gh-egory, 9 C. & P. 584. 
 
 And see Wilson v. Goit, 3 Smith, (17 N. Y. R.) 445, ante, p. 313. 
 Where words actionable per se were spoken of a married woman, she was 
 allowed to recover only 20.s. 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 (or count 
 since the C. L. P. Act, 1852; 15 & 16 Vict. c. 76, s. 40; Jud. Act, 1875, 
 Order XVII. r. 4). 
 
 Dengate v. Gardiner, 4 M. & W. 5 ; 2 Jur. 470. 
 A declaration by husband and wife alleged that the defendant falsely 
 and maliciously spoke certain words of the mfe imputing incontinence to 
 her, whereby she lost the society of her neighbours, and became ill and 
 unable to attend to her necessary affairs and business, and her husband 
 incurred expense in curing her, and lost the society and assistance of his 
 wife in his domestic affaii's. Held that the declaration disclosed no cause 
 of action, 
 
 Allsop midwife v. Allsop, 5 H. & K 534; 29 L. J. Ex. 315; 
 6 Jur. N. S. 433 ; 8 W. R. 449 ; 36 L. T. (Old S.) 290. 
 
 Approved in Lynch v. Knight and wife, 9 H. L. C. 577. 
 [N.B. — The excommunication case Barnabas v. Traunter, 1 Yin. Abr. 396 ; 
 ai^te p. 59, was not cited to the court in this case.] 
 
 Where words were spoken imputing unchastity to a woman, and by reason 
 thereof she was excluded from a private society and congregation of a sect 
 of Calvinistic Methodists, of which she had been a member, and was pre- 
 vented from obtaining a certificate without which she could not become a 
 member of any other society of the same nature. Held that such a result 
 was not such special damage as would render the words actionable. 
 
 Roberts and wife v. Roberts, 5 B. & S. 384 ; 33 L. J. Q. B. 249 ; 
 12 W. R. 909 ; 10 L. T. 602 ; 10 Jur. N. S. 1027. 
 
 The act of a third party, if caused by the defendant's 
 language, is not too remote ; and this, whether such act 
 be in itself a ground of action by the plaintiff against 
 such third party or not. But of course the act of the 
 third party must be the result of the defendant's words 
 and such a result as the defendant either did contem- 
 plate or ought to have contemplated. The defendant 
 cannot be held liable for any eccentric or foolish conduct 
 on the part of the person he addressed ; but only for the 
 ordinary and reasonable consequences of his words.
 
 226 DA.VAGES. 
 
 Formerly this was much doubted ; it was held, iu Vicars v. 
 Wilcox, 8 East 1 ; 2 Sin. L. C. 553 (8th edition), that where 
 the plaintiff's master was induced by the slander to dismiss the 
 plaintiff from his em|)loy, before the end of the term for which 
 they had contracted, such dismissal was too remote to be special 
 damage ; because it was a mere wrongful act of the master, for, 
 which the plaintiff could sue him. The same doctrine was 
 laid down in Morris v. Langclale, 2 B. & P. 284, and Kelly v. 
 Partington, 5 B. & Ad. 645 ; 3 N. & M. 116. But this case is 
 clearly contrary to Davis v. Gardiner, 4 E.ep. 16, ante, p. 810, 
 and the numerous other cases in which loss of a marriage was 
 held to constitute special damage, although the plaintiff there 
 had an action for breach of promise of marriage. Doubts were 
 thrown on Vicars v, Wilcox, in Knight v. Gibbs, 1 A. & E. 43 ; 
 8 N. & M. 467, and in Green v. Button, 2 C. M. & K. 707, 
 and it must now be taken to have been overruled by the dicta 
 of the Law Lords in Lynch v. Knight and uife, 9 H. L. C. 
 577, and by the decision in Luniley v. Gye, 2 E. & B. 216. 
 And it is now, I think, clear law that the defendant is liable 
 for any illegal act which it was his obvious intention, or the 
 natural result of his words, to iiiduce another to commit. " To 
 make the words actionable, by reason of special damage, the 
 consequence must be such as, taking human nature as it is with 
 its infirmities, and having regard to the relationship of the 
 parties concerned, might fairly and reasonably have been 
 anticipated and feared would follow from the speaking of the 
 words." (Per Lord Wensleydale in Lynch v. Knight and 
 luife, 9 H. L, C. p. 600.) "If the experience of mankind 
 must lead any one to expect the result, the defendant will be 
 answerable for it." (Per Littledale, J., in R. v. Moore, 3 B. & 
 Ad. 188.) 
 
 Lllustrations. 
 
 If I tell a master falsely that his servant has robbed hiiii and thereupon 
 he instantly dismisses him, I must be taken to have contemplated this as 
 a natural and probable consequence of my act. But if the master horse- 
 whips his servant instead of dismissing him, this is not the natural result 
 of my accusation ; I could not be held lialde for the assault as special 
 damage. See per Williams, J., in 
 
 Haddon v. Loit, To C. B. 411 ; 24 L. J. C. P. 50.
 
 ACT OF A THIRD PARTY. 327 
 
 " Su])pose tliat during the war of 1870, an Englishman had been pointed 
 out to a Parisian mob as a German spy, and thrown by them into the Seine, 
 it couki not be contended that one act was noi the natural and necessary 
 consequence of the other." Mayne on Damages, 3rd ed., by Lumley Smith, 
 1). 426. And see such cases as 
 
 Lee V. miey, 18 C. B. N. S. 722. 
 
 Sneesby v. Lancashire and Yorkshire liy Co., L. R. 9 Q. B. 263 ; 
 
 43 L. J. Q. B. 69 ; 30 L. T. 492 ; (and in C. A.) 1 Q. B. D. 42 ; 
 
 45 L. J. Q. B. 41 ; 24 W. R. 99 ; 33 L. T. 372. 
 
 A man may not recover the same damages for the same injury twice from 
 
 two different defendants ; but he may recover from two different defendants 
 
 damages 2)ioportioned to the injury each has occasioned, and clearly where 
 
 words are spoken by a defendant icith the intent to make a third person 
 
 break his contract with the plaintiff", the fact that such person did break 
 
 his contract with the plaintiff in consequence of what the defendant said, may 
 
 be proved as special damage against that defendant. 
 
 Carrol v. Falkiner, Kerferd & Box's Digest of Victoria Cases, 216. 
 
 It is not essential that the third person, whose act 
 constitutes the special damage, should believe the words 
 spoken by the defendant, if it is shown that the words 
 spoken did directly induce the act. The law is other- 
 wise in America. 
 
 Illusti'ations. 
 
 The plaintiff" and another young woman worked for Mrs. Enoch, a straw- 
 lionnet-niaker, and Lived in her house. Mrs. Enoch's landlord, who lived 
 two doors off, came to Mrs. Enoch and complained that the plaintiff and 
 lier fellow-lodger had made a great noise and been guilty of openly 
 outrageous conduct. Mrs. Enoch thereupon dismissed them from her 
 employ, not because she believed the charge made, but because she was 
 afraid it v\-ould offend her landlord if they remained. Held that the 
 special damage was the direct consequence of the defendant's word. 
 
 Kni(jht v. Gihhs, 1 A. & E. 43 ; 3 N. & M. 467. 
 
 And see Gillett v. Bullivant, 7 L. T. (Old S.) 490, post p. 332. 
 But where the plaintiff' was under twenty-one and lived at home with her 
 i'ather, and the defendant foully slandered her to her father, in consequence 
 of which he refused to give her a silk dress and a course of music lessons on 
 the piano which he had promised her, although he entirely disbelieved the 
 defendant's story, this was held in America not to be such special damage as 
 Avill sustain the action, on the ground that such treatment by a parent of 
 his child is not the natural result of a falsehood told him against her. Per 
 Grover, J. : "I do not think s])ecial damage can lie predicated .upon the act 
 of any one who wholly disbelieves the truth of tlie story. It is inducing 
 acts injurious to the plaintiff", caused by a belief of the truth of the charge
 
 328 DAMAGES. 
 
 made by the defendant, that constitutes the damage which the law 
 redresses. " 
 
 Anon., 60 N. Y. 262. 
 
 And see Wilson v. Goit, 17 N. Y. 445. 
 
 But where the wrongful act of the third person is 
 vohmtary and spontaneous, there, as a rule, he alone is 
 liable for it. This is especially the case where A. tells 
 a falsehood against the plaintiff to B., which B. repeats, 
 and from B.'s repetition special damage flows : here the 
 plaintiff cannot recover for such special damage from 
 A. ; and indeed if the words be not actionable per se, he 
 cannot sue A. at all : his only action is against B. For 
 B. acted consciously and voluntarily ; the repetition is 
 his own unlawful act ; for the consequences of which he 
 alone is answerable. By repeating A.'s words, B. 
 became an independent slanderer. 
 
 The law is not quite so restricted in cases of libel ; 
 every one in any way concerned in the publication of a 
 libel is equally responsible for all the damages which 
 flow from that jjublication. Thus, if I Avrite you a 
 private letter containing a libel on A., and you show the 
 letter to various persons, one of whom acts on it to A.'s 
 prejudice, we both are liable to an action ; for I set the 
 libel in circulation. But if, instead of merely" showing 
 my letter, j^ou make a copy of it and send it to a news- 
 paper to be published to all the world, without my 
 leave, and in a way which I could not have anticipated, 
 then this republication is your own unlawful act, for the 
 consequences of wliich you alone are liable. Secus if I 
 either requested or expected and intended joii to publish 
 it. (Seejyosz', pp. 360 — 365.) 
 
 Thus, it may happen that a person who invents a he and 
 maliciously sets it in circulation, may sometimes escape punish- 
 ment altogether, while a person who is merely injudicious may 
 
 i
 
 REPETITION. 329 
 
 be liable to an action through incautiously repeating a story 
 which he believed to be the truth, as he heard it told frequently 
 in good society. For if I originate a slander against you of 
 such a nature that the words are not actionable j)ev se, the 
 utterance of them is no ground of action, unless special damage 
 follows. If I myself tell the story to your employer, who there- 
 upon dismisses you, you have an action against me ; but if I 
 only tell it to your friends and relations, and no pecuniary 
 damage ensues from my own communication of it to any one, 
 then no action lies against me, although the story is sure to get 
 round to your master sooner or later. 
 
 The unfortunate man whose lips actually utter the slander to 
 your master is the only person that can be made defendant ; 
 for it is his publication alone which is actionable as causing 
 special damage. 
 
 As to this state of the law, see the remarks of Kelly, C.B., in 
 Biding v. Smith, 1 Ex. D. 94 ; 45 L. J. Ex. 281 ; 24 W. R. 487 ; 
 34 L. T. 500, who differed from Pollock and Huddleston, B.B., 
 in denouncing the decision in Ward v. Weeks, 7 Bing. 211 ; 4 
 M. & P. 790, which they maintained. 
 
 It might, perhaps, have been argued formerly, in analogy to 
 the principle of Scott v. Shepherd, 1 Sm. L. Cases (8th ed.), 
 466 ; 2 Wm. Bl. 892 ; 3 Wils. 403, that he who invented the 
 slander and first set it in circulation, is as liable as he who " gave 
 the mischievous faculty to tlie squib " and first started it on its 
 wild career across the market-house at Milborne Port. But it 
 will be remembered that the decision in that famous case turns 
 expressly on the assumption that Willis and Ryal were not to 
 be considered free agents, that what they did was "by necessity," 
 was " the inevitable consequence of the defendant's unlawful 
 act." Had they been considered as free agents voluntarily 
 intervening, the other judges would have agreed with Black- 
 stone, J. On principle, therefore, it is clearly good law to '^ 
 hold that when the repetition of the slander is spontaneous and j^ ^^^^^ 
 unauthorised, when it is the voluntary act of a free agent, the tvLu^«^ 
 originator of the slander is not answerable for any mischief caused '-'•f'-**^^**'^ 
 by such repetition : and this principle is also far too strongly ^Xl*''^^ 
 established by authority to be easily, if ever, shaken. (See'iJ-^-*-^ 
 Ward V. Weeks, 7 Bing. 211 ; Rutherford v. Evans, 4 C. & P. 1 
 79 ; Tunniclife v. Moss, 3 C. & K. S3 ; Parkins et ux, v. Scott j
 
 330 DAMAGES. 
 
 et ux., 1 H. & C. 153; 31 L. J. Ex. 331 ; 8 Jur. N. S. 593 ; 
 Dixon V. kimitli, 5 H. & N. 450; 29 L. J. Ex. 125 ; Bateman 
 V. Lyall, 7 C. B. N. S. 638 ; Clarke v. Morgan, 38 L. T. 354, 
 in winch last case Lindley, J., expressly states his opinion that 
 the decisions in Word v. Weels and Parkins v. Scott have 
 been in no way overruled by Biding v. Smith and Evans v. 
 Harries, 2C L. J. Ex. 31 ; 1 H. & N. 254. It is only in cases 
 where the words are not actionable per se, that the rule as to 
 the remoteness of damages inflicts this apparent hardship upon 
 the plaintiff ; for where the words are actionable per se, and in 
 all cases of libel, the jury find the damages generally, 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 
 (1829), 4 C. & P. 79 ; Tunniclife v. Moss, 3 C. & K. 83.) 
 
 Illustrations. 
 
 Weeks was speakii:g to Bryce nf the i)laintiff, and said, '•' He is a rogue 
 and a swindler ; I know enoiigli about liini to hang him." Bryce repeated 
 this to Bryer as Weeks' statement. Bryer consecxuently refused to trust 
 the plaintiff. Held that the judge was right in nonsuiting the plaintiff : 
 for the words were not actionaljle ^j«- se, and the damage was too remote. 
 
 TVard v. TFeeh, 7 Bing. 211 ; 4 M. & P. 796. 
 
 Hirst V. Goodwin, 3 F. & F. 257. 
 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 laj--, for the groom had never spoken to 
 the lady. 
 
 Clarhe v. Morgan, 38 L. T. 354. 
 
 Dixon V. Smith, 5 H. & N. 450 ; 29 L. J. Ex. 125, ante, p. 316. 
 . The defendant's ^\^.fe charged Mrs. Parkins ^ath adultery. She in- 
 dignantly told her husband, and he was unreasonable enough to insist upon 
 a separation in consecjuence. Held that the defendant was not liable. 
 
 Parkins et ux. v. Scott et ux., I H. & C. 153 ; 31 L. J. Ex. 331 ; 
 8 Jur. N. S. 593 ; 10 W. R. 562 ; 6 L. T. 394. 
 Bingham caused a libel on plaintiff, the proprietor of a newspaper, to be 
 printed by Hinchcliffe as a placard, and distributed 5000 such placards. 
 He also put the same libel into a rival newspaper, the defendant's, as an 
 advertisement. 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 ji;stification pleaded, contended that the decline of
 
 REPETITION. 331 
 
 circulation must principally be ascribed to the 5000 placards, not to the fi^u. ^ 
 advertisement. IMartin, B., while admitting tliat defendant was not liable '^'-^'^j^ ^ 
 for damage caused by the placards, ruled that it lay on defendant to prove ^'=''*''^ 
 that the damage sustained l^y the plaintiff was in fact due to the placard, , ^^^^^^_^ 
 and not to the advertisement. Verdict for the plaintiff, 500/. In the ^ IUjjL > 
 action against Bingham and Hinchcliffe plaintiff recovered only 40s. The^:^,,^^^,^.,^ ^ 
 bOOl. Avas probably due to the justification pleaded and not proved, t^j,.*,^ K^ Uj4- 
 Harrison v. Pearce, 1 F. & F. 567 ; 32 L. T. (Old S.) 298.''^tJ,A^h^"cl ^ 
 
 But this rule, that the originator of a slander, not 
 actionable per se, is not liable for damage caused by its 
 repetition, cannot of course override the general jDrin- 
 ciple that every man will be liable for the natural and 
 necessary consequences of his act. And it may well be 
 that the repetition of a slander may be the natural and 
 necessary consequence of defendant's original publica- 
 tion. It cle^ rljj ^ ^Q whenever the original communica - 
 tion made to A., places A. under a moral obligation to 
 repeat the slander to B. And, indeed, if defendant 
 knew the relation in which A. stood to B., he will be 
 taken to have maliciously contemplated and desired this 
 result when he spoke to A. So, again, whenever the 
 first publisher either expressly or implicitly requested 
 or procured the rej)etition ; then he will of course be 
 liable for all the mischief caused by the act of his agent, 
 and the agent would be liable also. 
 
 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 
 hable for all consequential 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 slandei", as the 
 repetition is privileged ; therefore he mast be able to sue the 
 first ]»idolislKr 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
 
 332 DAMAGES. 
 
 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." [Fcr Beardsley, J., in KeenhoUs v. Becker, 3 Denio 
 N. Y. 352, and see Terv:iUiger v. Wands, 17 N. Y. 58.) But 
 this is not the law of England, at all events ; it by no means 
 follows that because the repetition is privileged or innocent, 
 that it is therefore the natural and necessary consequence of 
 the prior publication. In Parkins v. Scott the repetition was 
 clearly imiocent ; yet no action lay against the origiual defamer. 
 Mrs. Parkins was in fact held to have no remedy. So also in 
 Hohvood V. Hopkins, Cro. Eliz. 787, the communication would 
 probably in the present day be deemed privileged. 
 
 lUustrations. 
 
 The plaiutiff was guverness to Mr. L.'s children ; the defendant tokl her 
 lather that she had had a child by Mr. L. : the father went straight to 
 I\rr. L. and told him what defendant had said. Mr. L. thereupon said that 
 tlie plaintiff had better not return to her duties, for although he knew that 
 the charge was perfectly false, still for her to continue to attend to his 
 children, would be injurious to her character and unpleasant to them both. 
 Held that the repetition by the father to Mr. L., and his dismissal of the 
 plaintitf, were both the natural consequences of the defendant's publication 
 to the father. 
 
 Gillett v. Bullivcmt, 7 L. T. (Old S.) 490. 
 Foides V. Bowen, 3 Tiff. (30 N. Y.) 20. 
 
 A police magistrate dismissed a trumped-up charge brought by the 
 plaintiff, a policeman, and added : " I am bound to say, in reference to this 
 charge and a similar one brought from the same spot a few days ago, that I 
 cannot believe William Kendillon on his oath." This observation was 
 duly reported to the Commissioners of Police, who in consequence dismissed 
 the plaintilf from the force. Lord Denman held that the dismissal was 
 special damage for M-hich the defendant would have been liable, if the action 
 had lain at all : for he must have known that such a remark would 
 certain!}' be reported to the commissioners, and would most probably cause 
 them to dismiss the plaintiff. Nonsuit on the ground of privilege. 
 KeitdiUoii V. Malthy, 1 Car. & Marsh. 402. 
 
 [N.B. The report of this case in 2 Moo. & Eob. 438, refers only to thi^ 
 point of privilege.] 
 
 H. told Mr. Watkins that the plaintiff, his wife's dressmaker, was a 
 woman of immoral character. IMr. Watkins naturally informed his wife of 
 this charge, and she ceased to employ the plaintiff. Held that the plaintiff's
 
 REPETITION. 
 
 533 
 
 loss of Mrs. Watkins' custom was the natural and necessary consequence of 
 the defendant's communication to Mr. Watkins. 
 
 Dernj v. Handleu, 16 L. T. 263. 
 If the defendant makes an oral statement to the reporter of a newspaper, 
 intending and desiring him to insert the substance of it in the paper, he is 
 liable for all the conseciuences of its appearing in print, although he may 
 not have expressly requested the reporter to publish it. 
 
 Bund V. Douglas, 7 C. & P. 626. 
 
 B. V. Lovett, 9 C. & P. 462. 
 
 Adams v. Kelhj, Ry. & Moo. 157. 
 
 R. V. Cocker, 8 Q. B. 533 ; 15 L. J. Q. B. 206.
 
 CHAPTEE XI. 
 
 COSTS. 
 
 If an action of slander or libel be tried by a jury, the 
 costs always follow the event unless, upon application 
 made at the trial for good cause sho^ii, the Judge before 
 whom such action is tried, or the Court, shall otherwise 
 order. (Order LY. r. 1.) If by any chance such an 
 action be tried by a Judge alone (which it very seldom 
 is, except in the case of trade libels ; Thomas v. Williams^ 
 14 Ch. D. 864 ; 49 L. J. Ch. 605 ; 28 W. E. 983 ; 43 
 L. T. 91), the costs are absolutely in his discretion. 
 The provisions of the C^ounty C^ourts Act, 1867 (30 
 & 31 Yict. c. 142, s. 5), no longer apply to actions of libel 
 or slander, since s. 67 of the Jndicatui-e Act, 1873, 
 came into operation : for no action of either slander or 
 libel can be brought in the C-ounty Court, except by 
 consent. 
 
 Formerly the provisions of the Coimty Courts Act applied 
 to all actions, whether they could be brought in the County 
 Coujt or not ; the words of the Act being wider than the 
 Legislature intended. {Sampson v. Machay, L. R. 4 Q. B. 
 643 ; 10 B. & S. 694 ; 88 L. J. Q. B. 245 ; 17 W. R 883 ; 20 
 L. T. 807 ; Gray v. TIW 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 ; Craven 
 V. Smith, L. R. 4 Ex. 146 ; 88 L. J. Ex. 90 ; 17 W. R. 710 ; 20 
 L. T. 400 ; Kent v. Leivis, 21 W. R. 413.) Formerly also the 
 provisions of LordDenman's Act (3 & 4 Vict. c. 24, s. 2) applied 
 to actions of slander and libel, and therefore a plaintiff who
 
 PARTNERS. 365 
 
 of the libel, within the meaning of 6 & 7 Vict. c. 96, s. 7, and that, as the 
 learned judge at the trial had summed up in terms which might have led 
 the jiuy to sujapose that it was, and the jury had apparently given their 
 verdict on tliat footing, there must be another new trial. 
 
 E. V. Holhroolc c(j others, 4 Q. B. D. 42 ; 48 L. J. Q. B. 113 ; 27 
 W. R. 313 ; 39 L. T. 536 ; 14 Cox, C. C. 185. 
 The prosecutor, Mr. .John Howard, Clerk of the Peace for the borough of 
 Portsmoutli, died shortly afterwards, so the proceedings dropped, and no 
 third trial ever took place. 
 
 9. Partners. 
 
 Partners could always jointly sue for a libel defama- 
 tory of the firm. ( Ward and another v. /Smith, 6 Bing. 
 749 ; 4 C. & P. 302 ; Le Fanu v. 3falcolmson, 1 H. L. 
 C. 637.) But in such an action no damages could for- 
 merly have been given for any private injury thereby 
 caused to any individual partner ; nor for the injury 
 to the feelings of each member of the firm. Only joint 
 damages could be recovered in the joint action; for the 
 basis of such action was the injury to their joint trade. 
 {Hay thorn v. Laivson, 3 C. & P. 196 ; Robinson v. Mar- 
 chant, 7 Q. B. 918 ; 15 L. J". Q. B. 134.) But now, by 
 virtue of Order XYII., r. 6, " claims by plaintiffs 
 jointly may be joined with claims by them or any of 
 them separately against the same defendant." And see 
 Order XVL, r. 1. Hence it is no longer necessary to 
 bring two actions for the same words : each individual 
 partner may, in any action brought by the firm, recover 
 separate damages for any special injury done to himself, 
 if properly claimed in the statement of claim, the firm 
 at the same time recovering their joint damages. (See 
 Booth and others v. Briscoe, 2 Q. B. D. 496 ; 25 W. E. 
 838, post, p. 370.) If, however, one partner be 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 defendant's words ; tlien the 
 individual partner should, of course, sue alone.
 
 366 THE LAW OF PERSOXS. 
 
 Partners may sue or be sued in tlie name of their 
 firm ; but any other j^arty to the action may, in such a 
 case, apply by summons to a Master at Chambers or a 
 District Eegistrar for a statement of the names of the 
 partners in such firm. (Order XYI., r. 10.) And 
 where partners are suing in the name of the firm, they 
 must, on demand in wiiting by or on behalf of the defen- 
 dant, disclose the names and places of residence of all 
 the persons constituting the firm; the proceedings never- 
 theless continuing in the name of the firm. If the 
 plaintiffs or their solicitor fail to comply with such 
 demand, a Master at Chambers or District Eegistrar will 
 stay all proceedings. (Order XVIL, r. 2.) If both 
 joint and several damages be claimed, the j)artners 
 should sue in their o^^ti names, either with or without 
 the name of the firm. 
 
 If a partner conducting the business of a firm causes 
 a libel to be published on a rival firm, the firm will be 
 liable as well as the individual partner. So, if any 
 agent or servant of the firm defames any one by the 
 express direction of the fii-m, or in accordance with the 
 general orders given b}^ the firm for the conduct of their 
 business. {^Scc Master and Servant, ante^ p. 360.) But 
 if there be any doubt as to the liability of the fii'm, it is 
 always safer to join the individual partner or agent or 
 servant as a co-defendant with the firm, i^^ee Order 
 XYI., r. 3.) "Any person carrying on business in the 
 name of a firm apparently consisting of more than one 
 person may be sued in the name of such firm.'' (Order 
 XYI., r. 10 a.) Where partners are sued in the name 
 of their firm the)^ must appear individually in their own 
 names. But all subsequent proceedings continue in 
 the name of the firm. (Order XIL, rr. 12, 12 a.) 
 Where judgment has been obtained against a firm, it 
 may be enforced against the property either of the
 
 CORPORA TIONS. ^67 
 
 firm or of anyone proved or admitted to be a partner. 
 
 (Order XLII., r. 8.) 
 
 Illustrations. 
 
 If one partner be libelled in his private capacity he cannot recover for 
 any special damage wliich lias occurred to the business of the firm. All 
 the partners should sue for that jointly. They may now do so in the same 
 action. 
 
 Solomnns t£- others v. Medex, 1 Stark. 191. 
 
 Robmson v. Marchant, 7 Q. B. 918 ; 15 L. J. Q. B. 134 ; 10 Jur. 
 
 156. 
 Cook cO another v. BatcheUor, 3 Bos. & Pul. 150. 
 Maitland t& others v. Goldney cC; another, 2 East, 426. 
 Similarly, if the firm be libeUed 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. 
 Haythorn v. Laioson, 3 C. & P. 196. 
 
 Le Fanu v. Malcolmson, 1 H. L. C. 637 ; 13 L. T. 61 ; 8 Ir. L. R. 
 418. 
 But if insolvency be imputed to one member of a firm, this is a reflection 
 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 £• others v. Lawson, 3 Bing. 452 ; 11 Moore, 360. 
 
 10. Corporations and Companies. 
 
 A corporation may sne for any libel npon it, as distinct 
 from a libel upon its individual members. It may also 
 sue for a slander upon it in the way of its business or 
 trade. If, however, the corporation be not engaged in 
 any business, it would probably be necessary to prove 
 special damage in any case of slander. 
 
 A corporation " could not sue in respect of an impu- 
 tation of murder, or incest or adultery, because it could 
 not commit those crimes. IS^or could it sue in respect of 
 a charge of corruption ; for a corporation cannot be 
 guilty of corruption, although the individuals composing 
 it may be." {Fer Pollock, C.B., 4 H. & I^. 90.) 
 
 The law is the same with regard to unincorporated 
 trading companies, which may sue for libel in the manner
 
 368 THE LAW OF PERSONS. 
 
 directed b)^ the special Act creating them, or any statute 
 applicable to them. (Williams v. Beaumont^ 10 Bing. 
 260 ; 3 M. & Scott, 705.) 
 
 Corporations and companies may maintain actions for 
 slander of their title ; whether the slander be uttered by 
 one of tlieii' oy\Ti members or by a stranger. [Metropolitan 
 Omnibus Co. v. Hawkins, 4 H. & I^. 87 ; 28 L. J. Ex. 
 201 ; 5 Jnr. N. S. 226 ; 7 W. E. 265 ; 32 L. T. (Old 
 S.), 281 ; Trenton Insurance Co. y. Ferrine, 3 Zab. (Xew 
 Jersey), 402.) 
 
 A corporation will not, it is submitted, be liable for 
 any slander uttered by an officer, even though he be 
 acting honestly for the benefit of the company and within 
 the scope of his duties, unless it can be proved that the 
 corporation expressly ordered and directed that officer to 
 say those very words : for a slander is the voluntary and 
 tortious act of the speaker. 
 
 A corporation will be liable to an action for a libel 
 published by its servants or agents, whenever such pub- 
 lication comes within the scope of the general duties of 
 such servants or agents, or whenever the corporation 
 has expressl}^ authorized or directed such publication ; 
 (see ante, Master and Servant, p. 360 ; Yarborouffh v. 
 Ba?ik of England, 16 East, 6; Latimer v. Western Morning 
 Neivs Co., 25 L. T. 44 ; Alexander v. N. E. Rg. Co., 6 
 B. & S. 340; 34 L. J. Q. B. 152; 11 Jm-. X. S. 619; 
 Laivless v. Anglo- Eg gptian Cotton Co., L. E. 4 Q. B. 262; 
 10 B. & S. 226 ; 38 L. J. Q. B. 129 ; 17 W. E. 498. 
 And in America, Aldrich v. Press Printing Co., 9 Min. 
 133.) 
 
 Whether a corporation can be guilty of express malice, 
 so as to destroy ^ prima facie privilege arising from the 
 occasion of publication has not yet been decided ; but 
 semble {per Lord Campbell, C.J., E. B. & E. 121 ; 27 L. 
 J. Q. B. 231,) it can.
 
 JOIXT PLAINTIFFS. 369 
 
 A corporation can be indicted for libel and fined. 
 [Per Lord Blackburn in Pharmaceutical Socictij v. London 
 and Provincial Supplij Association, 5 App. Cas. 8G9, 870 ; 
 49 L. J. Q. B. 742 ; 28 W. E. 9G0 ; 43 L. T. 389 ; dis- 
 senting from the remarks of Bramwell, L.J., in tlie 
 Court below, 5 Q. B. D. 313; 49 L. J. Q. B. 338; 28 
 W. R. 608 ; 42 L. T. 569. 
 
 Illustrations. 
 
 A joint-stock company incorporated under the 19 & 20 Vict. c. 47, may 
 sue in its own corporate name for words imputing to it insolvency, dis- 
 honesty, and mismanagement of its affairs, and this although the defendant 
 be one of its own shareholders. 
 
 Metrojiolitan Omnibus Co. v. Hairkins, 4 H. & X. 87 ; 28 L. J. 
 Ex. 201 ; 5 Jur. N. S. 226 ; 7 W. E. 265 ; 32 L. T. (Old S.) 
 281. 
 Where, before the 19 & 20 Vict. c. 47, a joint-stock insurance company 
 though not incorporated, was authorised by statute to sue in the name of 
 its chairman, it was held tliat the chairman might bring an action for a 
 libel which attacked the mode in which the company carried on its business. 
 JFilliams v. Beaumont, 10 Bing. 260 ; 3 M. & Scott, 705. 
 A railway comjaany was held liable for transmitting a telegram to the 
 effect that the plaintiff's liank had stopped payment. 
 
 Wldtfield <£ others v. South Eastern Railway Co., E. B. & E. 115; 
 27 L. J. Q. B. 229 ; 4 Jur. N. S. 688. 
 
 11. Other Joint Plaintifs. 
 
 " All persons may be joined as plaintiffs in wliom 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. 
 But the defendant, though unsuccessful, sliall be entitled 
 to his costs occasioned by so joining any person or 
 persons wlio shall not be found entitled to relief, unless 
 the Court in disposing of the costs of the action shall
 
 370 THE LAW OF PERSONS. 
 
 otherwise direct." Order XYI., r. 1. Cf. C. L. P. Act, 
 1860, s. 19. 
 
 Ey vii'tuc 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, Barrait y. 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. {BocAh and others v. Briscoe, 2 
 Q. B. D. 496; 25 W. E. 838.) 
 
 The defendant may counter-claim separately against 
 such joint plaintiffs, if the counter-claims can be con- 
 veniently disposed of in the same action with the 
 plaintiff's claim. {^Manchester, Sfc, Ry. Co. and L. 6f N. 
 W. Rfj. Co. V. Brooks, 2 Ex. D. 243 ; 46 L. J. Ex. 244 ; 
 25 W. E. 413 ; 36 L. T. 103.) 
 
 Illudrations. 
 
 A charity iiuar Wisljeacli was managed by a body of trustees, eight in 
 number. A libellous letter was published in the JFisheach Chronicle, m\- 
 puting 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 returned a single verdict for the plaintiffs, 
 damages 40s., the Court of Appeal refused, on the motion of the defendant, 
 to disturb the verdict. 
 
 Booth & others v. Briscoe, 2 Q. B. D. 496 ; 2o W. R. 838. 
 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. 
 
 Eussell and another v. Webster, 23 W. E. 59. 
 
 12. Joint Defendants. 
 
 "All persons may be joined as defendants against 
 whom the right to any relief is alleged to exist,
 
 JOINT DEFENDANTS. 371 
 
 Ayhctlicr 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 theii' respective liabilities, without any amendment." 
 Order XYI., r. 3. 
 
 " Where in any action, whether founded upon con- 
 tract or otherwise, the plaintiff is in doubt as to the 
 person from whom he is entitled to redress, he may 
 join two or more defendants, to the intent that in such 
 action the question as to which, if au}^, of the defen- 
 dants is liable, and to what extent, may be determined 
 as between all parties to the action." Order XYI., 
 r. 6. Though here, of com-se, the plaintiff will have 
 to pay the costs of the defendant who proves not liable, 
 unless such defendant has colluded with the other de- 
 fendant found to be liable, or has otherwise been guilty 
 of misconduct. 
 
 " It shall not be necessary that every defendant to 
 any action shall be interested as to all the relief thereby 
 prayed for, or as to every cause of action included 
 therein; but the Court or a Judge may make such 
 order as may appear just to prevent any defendant 
 from being embarrassed or put to expense by being 
 required to attend any proceedings in such action in 
 which he may have no interest." Order XYI., r. 4. 
 
 Under these rules a joint action can now be main- 
 tained against two or more persons for slander. For- 
 merly this was impossible. ( Chamherlaln v. White^ Cro. 
 Jac. G47 ; s. c. 8uh nomine Chambcrlainc v. WilhnorCi 
 Palm. 313.) Even if husband and wife uttered similar 
 words simultaneously, there were two separate publi- 
 cations, 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 iix. 
 (1C52), Style, 3-19, antc.^ p. 351 ; Hwlihbi et ux. v. 
 
 E r. 2
 
 372 THE LAW OF PERSONS. 
 
 Vincent et ux. (17G4), 2 Wils. 227; and in America, 
 Tait V. Ciilhertson, 57 Barb. 9.) But with libel it was 
 different ; the publication of a libel might well be the 
 joint act of two or more persons, who might in snch 
 a case be sned either jointly or separately at the elec- 
 tion of the plaintiff. Thns, if a hnsband and wife 
 jointly publish a libel, they might always have been 
 jointly sued. [Catterall v. Kenjjon, o Q. B. 310; Keij- 
 worth Y. Ilill, 3 B. & Aid. G8o.) If, however, plaintiff 
 prefers to sue only one defendant when he might have 
 sned others also, the one defendant sued cannot recover 
 any share of damages or costs from the others, who 
 might have been, but are not, sued. (Colburn v. Pat- 
 more^ 1 C. M. & E. 73; 4 Tyr. G77; 3Ierryiveather v. 
 Nixan, 8 T. E. 186 ; 2 Sm. L. C. 546 ; Moscati v. Laiv- 
 son, 7 C. & P. 32.) 
 
 Joint defendants may counter-claim jointly or sej)a- 
 rately, or one may do so alone, against the plaintiffs 
 jointly, or against one plaintiff separately, or against one 
 j)laintiff and a third party. See Appendix C. to Judica- 
 ture Act, 1875, Forms of Pleadings, jN"o. 14, Statement 
 of Defence and Counter-claim in an action of Fore- 
 closure. Such a counter-claim Avill, however be, of 
 course, subject to the provisions of Order XIX., r. 3, 
 and Order XXII. , r. 1), if it canuot be conveniently 
 disposed of in the pending action. 
 
 Illustration. 
 
 The members of the coiimiittee of the Reform Union were hehl jointly 
 liable for publishinij; fi report charging the plaintiff and otlicrs by name 
 with liribery at the Eerwick election. 
 
 JFilson V. Eced d; others, 2 F. & F. 149.
 
 CHAPTEE XIII. 
 
 CRIMINAL LAW. 
 
 Our attention hitherto has been chiefly directed to the 
 civil action for libel or slander, whereby the person 
 defamed seeks snch compensation as damages can afford 
 for the injury done him by the defendant's words. But 
 in all libels, and in some cases of spoken words, the 
 State is also concerned, and interferes to punish the 
 defendant as an offender against the criminal law. The 
 evil doue by some libels is so extensive, the cxam23le 
 set so pernicious, 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. As a rule, therefore, no sj)oken words are 
 treated as a crime. 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, 
 apply with equal, if not greater force, to slanders. 
 
 Criminal proceedings for libel may 1)0 taken either at 
 common law, or under certain statutes ; the remedy may 
 be either by indictment or information ; though infor- 
 mations arc only granted in urgent cases, Avherc the 
 publication of the libel is likely to produce great public 
 mischief nnd must therefoi'c be promptly siqjpressed. 
 
 The fact that libel is a crime as avcII as a tort, produces other
 
 374 CRIMINAL LAW. 
 
 consequences in law wbicli 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. Jolvnes, 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. Stock- 
 dak', Ry. .t M. 337; Bidl v. Chapman, 8 Ex. 104.) If a 
 printer undertakes to jDrint 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 the 
 part of the work which is not defamatory in an action for work 
 and labour done and materials jDrovided, the special contract 
 notwithstanding. {Clay v. Yates, 1 H. & 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 manu- 
 script of defamatory matter {Gcde v. Leckie, 2 Stark. 107), or 
 of a contract to let rooms to be used for the delivery of blas- 
 phemous lectures [Coivan v. Milhourn, L. R. 2 Ex. 230 ; 36 
 L. J. Ex. 124 ; 15 W. R. 750 ; 16 L. T. 290), or for pirating a 
 libellous book {Stockdale v. Omvhyn, 5 B. & C. 173 ; 7 D. & R. 
 625 ; 2 C. & P. 103). 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 ])ook or picture, nor decree an 
 account of the profits made thereby. (Per Lord Eldon, in 
 Walcot V. Walker, 7 Ves. 1 ; in Soutliey v. Shericood, 2 ]Mer. 
 435, and in Lawrence v. Smith, Jacob, 471.) 
 
 No contract will be imfiplied to indemnify a party against the 
 consequences of an illegal act, such as the publication of a libel. 
 {Shackell v. Easier, 3 Sc. 59 ; 2 Ring. N. C. 634.) And semhle 
 the proprietor of a newsiDaper convicted and fined for the 
 publication of a libel which Avas 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 con- 
 viction. (Colburii v. Fatmore, 1 C. M. & R. 73 ; 4 Tyr. 677.) 
 Even an exjjress promise to indemnify another if he will publish 
 a libel is void (Arnold v. Clifford, 2 Sumner, 238) ; for it is 
 a promise on an illegal executory consideration, an incitement 
 to do an illegal act. But it has been decided in America that
 
 INDICTMENT. 375 
 
 an express promise to indemnify another against the con- 
 sequences of an illegal act already done is binding, {(jriffiths 
 V, Eardenburgli, 41 N. Y. 4G9 ; Hoive v. Buffalo & Erie 
 Rail. Co., 38 Barl)our (N. Y.) 124.) 
 
 I. Criminal Remedy hj Indictment. 
 
 It is a misdemeanour at common law, punishable on 
 indictment with fine and imprisonment, to speak any- 
 blasphemous, obscene, or seditious words in the hearing 
 of others. A fortiori.^ it is such misdemeanour to write 
 and publish blasphemous, obscene, or seditious words. 
 
 It is a misdemeanour at common law, punishable on 
 indictment with fine and imprisonment, to wiite 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. 
 
 Whatever words would be deemed defamatory of a 
 living person in any civil action mil 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 Com- 
 ment, Construction and Certainty, Privilege, and Malice, 
 apply equally to civil and criminal proceedings. 
 
 But a libel on a thing is no crime ; and Avherever no 
 action would lie without proof of special damage, clearly 
 no indictment can be preferred. 
 
 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. 383. 
 
 It is a misdemeanour at common law, punishable on 
 indictment Avith fine and imprisonment, to write and 
 publish defamatory words of any person deceased ;
 
 376 CRIMINAL LAW. 
 
 provided it be alleged and proved that this was done 
 with intent to bring contempt and scandal on his family 
 and relations and provoke them to a breach of the j)eacc ; 
 Hawkins, P. C. i. 58 ; 5 Eep. 125« ; 7?. v. Topham, 4 
 T. E. 129. 
 
 It will also be such misdemeanour to libel any sect, 
 company or class of men, Avithont mentioning any person 
 in particular ; provided it be alleged and proved that 
 such libel tends to excite the hatred of the peoj^le 
 against all belonging to such sect or class, and conduces 
 to a breach of the peace. (//. v. Gathcrcolc^ 2 Lewin, 
 C. C. 254.) 
 
 Such intention may sufficiently ajijDcar from the words 
 of the libel itself, or it may be proved by the conse- 
 quences that have followed from its publication. 
 
 The criniiual 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 woukl an 
 action lie, for want of a proper plaintiff. And see R. v. Darby, 
 :3 Mod. 139. 
 
 Illusfrations. 
 
 Liljel complained of : " On Saturday evening died of tlie sraall-pox at 
 Lis house in Grosvenor Square, Sir Charles Gaunter Nicoll, Knight of the 
 Llost Honourable Order of the Bath, and representative in ParHament for 
 
 the town of Peterborough He could not lie called a friend to his 
 
 countiy, for he changed his opinions for a red ribbon, and voted for that 
 pernicious object, the excise." It was alleged that this passage was pub- 
 lished with intent to vilify, blacken and defome 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. 
 II V. Critchley, (1734) 4 T. R. 129, n. 
 
 But an indictment which alleged that a libel on the late Earl Cowjier 
 had l)een i^ubhshed with intent to disgrace and vilify his memory, reputa- 
 tion, 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. 
 
 H. V. Tophaw, 4 T. R. 12G.
 
 SPECIAL INTENT. 377 
 
 And, a fortiori, to discuss tlie characters of deceased statesmen and noble- 
 men, as a matter of history, is no crime. 
 
 Per Lord Kenyon, C.J., ih. 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 
 publication is a seditious libel. 
 
 R. V. Dr. Shehbeare, (1758), cited in Lord Mansfield's judgment in 
 Pi. V. Dean of St. Asaph, 3 T. R. 430, n. 
 The defendant published a sensational account of a cruel murder com- 
 mitted by certain Jews said to have lately arrived from Portugal, and then 
 living near Broad Street. They were said to liave burnt a woman and a 
 new-born baby, because its father was a Christian. Certain Jews who 
 had arrived from Portugal, and who then liveel in Broad Street, w-ere 
 attacked by the mob, barbarously treated, and their lives endangered. A 
 criminal information was granted, although it was objected that it did not 
 appear j^recisely who were the persons accused of the murder. 
 R. V. Oshorn, Kel. 230 ; 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. Gathercole, 2 Lew. C. C. 254. 
 A pamphlet reflecting on the government and asserting that its officers 
 are corrupt, ignorant, and inca})able, 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. Tutchin, 14 Howell's St. Tr. 1095 ; 5 St. Tr. 527 ; Holt, 50 ; 
 2 Lord Raym. 1061 ; Salk. 50 ; 6 Mod. 268. 
 A notice was posted in church calling attention to certain abuses per- 
 mitted by " the trustees " of Lambeth workhouse ; an information was 
 granted on behalf of the whole body of trustees [although the trustees 
 could not before the Judicature Act have jointly sued for the libel, ante, 
 p. 370]. 
 
 R. V. Griffin, 1 Sess. Cas. 257. 
 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. 
 R. V. Jenour, 7 ]\Iod. 400. 
 But an indictment for a libel on "persons to the jurors unknown "is 
 bad, even after verdict. 
 
 R. V. Orme (vel Aime) d; Nutt, 1 Ld. Raym. 486 ; 3 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 eliallenge. (//. v. PhlUiyps^ East,
 
 378 CRIMINAL LAW. 
 
 4G4, and note on p. 470.) A fortiori^ it is a misdemeanom- 
 to Avritc a cliallcngc or to conscionsly deliver a ^viitten 
 challenge. And indeed all words wliicli amonnt to a 
 solicitation to cunnnit a crime, whether spoken or ^mtten, 
 are indictable, Avhether the person solicited commit the 
 crime or not. [R. y. Higghis^ 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 spread- 
 ing false rumours, to raise or loAver the price of food or merchan- 
 dise. (See R. V. Waddmrjton (1800), 1 East, 143.) According 
 to Scroggs, J., it is a misdemeanour to publish any news at all, 
 though true and harmless. (See 11 Hargrave's St. Tr. 322.) 
 Wlicre eight persons combined to raise the price of Govern- 
 ment stocks on Feby. 21st, 1814, hy spreadinga false rumour 
 of the death of Napoleon Buonaparte, they were indicted and 
 con'^-icted of a conspiracy, for their common purpose was illegal. 
 {R. V. De Bercnger, 3 M. & S. 67.) But this is scarcely an 
 authority for holding that the merely spreading a false rumour 
 is in itself indictable. 
 
 In all the above cases of misdemeanom' at connnon 
 law, the defendant may be fined or imprisoned, or both ; 
 bnt he cannot be sentenced to hard labonr. He may 
 also be reqnired to find snreties to keep the peace and 
 to be of good behaviom- for any length of time. A 
 married woman conld not, before the Married Women's 
 Property Act, be fined ; bnt she conld be reqnii-ed to 
 find sniTties, though she conld not enter into recog- 
 nizances herself. 
 
 Kone of the above offences can be tried at Quarter 
 Sessions. 
 
 Certain statutes have been passed in aid of the common 
 law : — 
 
 By the 6 & 7 Vict. c. 9G, s. 3, it is a misdemeanom* 
 to publish, or threaten to publish, any libel upon any 
 other person, or to threaten to publish, or propose to
 
 STATUTES. 379 
 
 abstain from publisliing, or to offer to prevent the pub- 
 lishing of, any matter or thing tonehing another, with 
 intent to extort money, or gain, or to procure for anyone 
 any appointment or office of profit. The offender may 
 be sentenced to imprisonment for any term not exceeding 
 thi-ee 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. {R. v. 
 Coghlan^ 4. F. & F. 316.) But the commencement of 
 legal proceedings is not "a publishing of any matter or 
 thing " within the meaning of the section. (7i. v. Yates 
 and another, 12 Cox, C. C. 441.) 
 
 By the G & 7 Yict. 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 impri- 
 sonment, or both, such imprisonment 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 punish- 
 ment may be fine or imprisonment, or both, such im- 
 prisonment not to exceed one year. 
 
 See the whole Statute in Appendix C, post, p. 674. 
 
 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 letter or otherwise, with intent to 
 extort money or gain. The off'ender may for each letter 
 he has sent be sentenced to penal servitude for life, or 
 for any term not less than three years, [now five years, 
 27 & 28 Vict. c. 47, s. 2,] or to imprisonment, with or 
 without hard labour, for any term not exceeding two 
 years. See E. v. Redman, L. E. 1 C. C. E. 12 ; 39 L. 
 J. M. C. 89 ; R. v. Ward, 10 Cox, C. C. 42 ; and before 
 this Act, R. V. Soutlterton, 6 East, 126.
 
 38o CRIMINAL LAW, 
 
 II. Ci'imimd Ecmcd// h/i Information. 
 
 In some cases of indictable words, the prosecutor may 
 also, if he j^refer, proceed by way of Criminal Informa- 
 tion. 
 
 Criminal Informations are of two kinds : — 
 
 (i) Those filed by the Attorney-General himself, 
 
 usually called ex officio informations, 
 (ii) Those filed by the Master of the Crown Office 
 by the dii-ection 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 su]3i)ression 
 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 disturbance. In 
 these cases, therefore, the AttoiTicy-General himscK 
 takes the initiative. There has been no ex officio in- 
 formation filed since 1830. 
 
 (ii) In the second class of informations the relator 
 is generall}^ 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 particular case. The Com-t, moreover, always 
 looks at all the circumstances which occasioned or pro- 
 voked the libel. Thus, if the prosecutor or 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. Larricu, 7 A. & E. 277,) or had an opportunity 
 of expressing his disapproval of its terms, of which
 
 CRIMINAL INFORMATIONS. 381 
 
 he did not avail himself, (7?. v. L'uuson^ 1 Q. B. 486,) 
 no information will bo granted. 
 
 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 prom2)t suppression. 
 The rank and dignity of the person libelled was for- 
 merly taken into consideration ; and informations have 
 been granted for imputing that the children of a marquis 
 were bastards, {R. v. Gregorfj^ 8 A. & E. 907) ; that a 
 peer had married an actress, (R. v. Kinnersletj^ 1 Wm. 
 Bl. 294) ; that a naval captain Avas a coward, a bishop 
 a bankrupt, a peer a perjurer, &c., &c. So, too, where 
 foreign potentates or their ambassadors arc libelled, an 
 information will be readily granted, lest ill-feeling 
 should spring up between England and that foreign 
 country. 
 
 Again, for any libels tending to obstruct the course 
 of justice, for invectives against a judge or magistrate, 
 or imputations on a jury, an information Avill be readily 
 granted ; and so for all reflections on the administra- 
 tion of justice, and for all publications tending to pre- 
 judice the fair trial of any accused person. {R. v. 
 Watson and others^ 2 T. K 199, jmst, p. 428; R. v. 
 JolUfe, 4 T. R. 285 ; R. v. White, 1 Camp. 359 ; Ex 
 imrte Duke of Madhorough, 5 Q. B. 955 ; 13 L. J. M. C. 
 105 ; 1 Dav. & Mer. 720 ; R. v. Gnuj, 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 Avill 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 ; Ft. v. 
 Oshorn, ib. 100, ante, p. 377) ; so where the general
 
 382 CRIMINAL LAW. 
 
 body of clergymen in a particnlar diocese were libelled, 
 (i^.'y. WiUittms, 5 B. & Aid. 595.) 
 
 But no information will be granted for a libel contained 
 in a private letter never made public {Ex luirte Dalc^ 2 
 C. L. E. 870) ; nor for any matter of mere trade dis- 
 pute, even thougli fraud be imputed ; nor in any case 
 where no malicious intention appears [JEx parte Doveton, 
 26 L. T. 73); nor where the matter is trivial and the 
 civil remedy sufficient. 
 
 A fortiori, no information will be granted where the 
 words are privileged by reason of the occasion on which 
 they were employed. (Fx parte Hoare, 23 L. T. 83.) 
 
 In every case the application for a criminal information 
 must be made promptly ; any delay in making the appli- 
 cation after knowledge of the libel has reached the 
 prosecutor will be ground for refusing an information, 
 unless such delay can be satisfactorily accounted for. 
 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. 
 
 A county coiTrt judge illegally refused to liear a barrister who appeared 
 before him. The barrister memorialised the Lord Chancellor. Obtaining 
 no redress, he applied to the Court of Queen's Bench for a criminal infunna- 
 tion. This woiild have been granted him, had he not previously applied 
 to the Lord Chancellor. 
 
 R. V. Marshal!, 4 E. & B. 475. 
 
 An information was refused where the alleged libel was proved to be 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 
 authorised by the House. 
 
 K. V. Wright (1799), 8 T. E. 293. 
 
 A French gentleman D'Eon de Beaumont published a libel on the Count 
 de Guerchy, 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 on the puljlic conduct of the ambassador, and insinuated
 
 CRIMINAL INFORMATIONS. 383 
 
 tliat lie was not lit for his post. An infornTation was filed and D'Eon 
 convicted, (Lord Mansfield.) 
 
 i?. V. UEon (1764), 3 Burr. 1514 ; 1 W. Bl. 501 ; Dig. L. L. 88. 
 
 And see R. v. Pdtkr (1803), 28 Howell's St. Tr. 617; anU, 
 p. 357. 
 Lord George Gordon was tried in 1787 and convicted upon an information 
 charging him with lil^clling Marie Antoinette, Queen of France, and " her 
 tool" the French Ambassador in London. He was fined ^500 and sentenced 
 to two years imj)risonment, and at the expiration of that time to find 
 sureties for his good behaviour. This he could not do : so he turned Jew 
 and died in prison on November 1st, 1793. (Ashurst, J.) 
 
 E. V. LorA 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 conserpience of this ill-timed law, upwards of 100 sail of vessels 
 are likely to return to this country witliout freights." This was deemed a 
 libel upon the Emperor Paul I. ; an information was granted, and the pro- 
 prietor of the Courier was fined J 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, G.J.) 
 
 B. V. Vint (1799), 27 Howell's St. Tr. 627, 
 
 III. Lmu Common to all Criminal Cases. 
 
 It must bo proved that the defendant published the 
 defamatory words. lu civil cases it is necessary to show 
 a publication to some third person other than the 
 person defamed. In criminal cases this is not absolutely 
 necessary ; it is sufficient to prove a publication to the 
 prosecutor himself, provided it be alleged and proved, 
 tlijit the defendant did so Avitli intent " to provoke the 
 prosecutor, and excite him to break the peace." [Per 
 Abbott, J., in II. v. Wegener.^ 2 Stark. 245. And see 
 llieJis'' case, Hob. 215; Poph. 139; cited 6 East, 47G; 
 Clulkrhiich v. Chafers^ 1 Stark. 471.) 
 
 In all other respects the law as to publication is prac- 
 tically identical in civil and criminal cases, {^ee c. YI., 
 antc^ pp. 150 — IGS.)
 
 384 CRIMINAL LAW. 
 
 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 publica- 
 tion of a libel is a fresh crime. The sale of every 
 separate copy of a libel is a distinct offence. {11. v. 
 Carlile^ 1 Chitty, 453.) " Not only the party who origin- 
 ally 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 publisher." {Fer 
 Bayley, J., in R. v. Carinc, 3 B. & Aid. 169.) "The 
 mere delivery of a libel to a third person by one con- 
 scious of its contents amounts to a publication, and is 
 an indictable offence." {Fer Wood, B., in Maloneij v. 
 Bartleij, 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 Avill amount 
 to a iwimd fade publication, it is open to the defendant 
 to prove, both in civil and criminal cases, that he delivered 
 the libel without any knowledge of the libellous nature 
 of its contents : aj.^ whore a postman or messenger 
 carries a sealed letter i^fer Lord Kenyon in B. v. Tojiham^ 
 4 T. E. 129,) or a parcel in which libellous handbills 
 were m-apped up [Day v. Bream, 2 Moo. & Eob. 55), 
 or where the defendant cannot read [per Lord Kenyon, 
 C.J., in B. V. Holt, 5 T. E. 444.) xVnd even if the 
 defendant read the libel, still if the words were on the 
 face of them innocent, and only became defamatory 
 when theii' meaning was pointed by certain extrinsic 
 facts and circumstances Avholly unlvnoA\Ti to the defen- 
 dant, then he would still be unconscious that what he 
 published was a libel, and such a publication would 
 be deemed innocent ; as where the libel was contamed 
 in an allegory or a riddle, to which the defendant had
 
 CRIMINAL LA J J'. 385 
 
 no clue. Again, where the defendant copied a libel 
 knowing it to bo a libel, and afterwards inadvertently 
 delivered such copy to a third person in mistake for 
 some other pajDcr, it is submitted that ho 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 E. v. Toj)ham, 4 T. R. 129 ; and in 
 B. Y. Lord Abiuffdon, 1 Esp. 228 ; and the ruling of 
 Abbott, C. J., in It. V. Harvey, 2 B. & C. 257.) 
 
 A master will be liable criminally for the acts of his 
 servant done in the ordinary course of his employment 
 in pursuance of his master's orders, general or express. 
 The liability of a defendant for such constructive publi- 
 cation is now defined by the Tth section of Lord Camp- 
 bell's Act (G & 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 pub- 
 lication was made A\ithout 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). I can only find one case reported in which a 
 defendant has availed himself of this statutory defence, 
 and that is H. v. Ilolhrook and others, 3 Q. B. D. 60 ; 
 47 L. J. Q. B. 35 ; 26 W. R. 144 ; 37 L. T. 530 ; 4 Q.
 
 386 CRIMINAL LAW. 
 
 B. D. 42 ; 48 L. J. Q. B. 113 ; 27 W. E. 313 ; 39 L. 
 
 T. 536, ante, pp. 364, 5. 
 
 Illustrations. 
 
 Merely to be iu possession of a copy of a libel is no crime, unless some 
 publication thereof ensue. 
 
 E. V. Bern, Cartli. 409 ; 12 Mod. 219 ; Holt, 422 ; Salk. 417 ; 
 
 1 Lord Raym. 414. 
 Jolm Lamb's Case, 9 Eep. 60, ante, p. 156. 
 
 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 has passed out of the defendant's posses- 
 sion and control, it is deemed to be published, so far as the defendant is 
 concerned. 
 
 Per Hoboyd, J., in R. v. Burdett, 4 B. & Aid. 143. 
 A libel was printed and pviblished ; the printer produced the manuscript 
 from which he had printed it, and tliis manuscript was proved to be in the 
 handwriting of the prisoner ; there was no evidence to shew that he autho- 
 rised 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. Lovett^Q C. & P. 462. 
 Cooper told the editor several good stories against the Rev. J. K., and 
 asked the editor to " show Mr. K. up ; " subsequently the editor publislifd 
 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. Goo])er, 15 L. J. Q. B. 206 ; 8 Q. B. 533. 
 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 
 tliereiu, the defendant was held criminally liable, and convicted. 
 R. V. TFalter, 3 Esp. 21. 
 
 And see R. v. Gutch, Fisher d: 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 filing an affidavit that he did not understand 
 Latin, and on 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 Avas convicted, but filed an affidavit in 
 mitigation 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 tw i 
 years' imprisonment. 
 
 R. V. Cuthell (1799), 27 Howell's St. Tr. 642.
 
 INNOCENT PUBLICATION. 387 
 
 There appeared in Mist's TFeelchj Journal, an account professedly of certain 
 intrigues, &c., at tlie 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 
 comjjositors 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." 
 
 B. V. Knell (1728), 1 Barnard. 305. 
 
 B. V. Clerk, ib. 304. 
 In Massachusetts it has been held that the publisher of a newspaper is 
 not liable for publishing an article which he reasonably and bond fide be- 
 lieves 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 ; 
 not I apprehend in any civil proceeding. 
 
 Smith V. Ashley (1846), 52 Mass. (11 Met.) 367. 
 
 Dexter v. Spear, 4 Mason, 115. 
 
 See Chubh v. Flannagan, 6 C. & P. 431. 
 Eev. Samuel Paine sent his servant to his study for a certain paper which 
 he wished to shew 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 insuflBcient in 
 a criminal case. 
 
 B. V. Paine (1695), 5 Mod. 163. 
 
 See the remarks of Lord Kenyon in B. v. Lord Abingdon, 1 Esp. 
 228. 
 A libel appeared in the 3Ian of the TForld of May 11th. On May 25th 
 the defendant was appointed publisher of the paper and the back-stock was 
 sent to his office. On December 13th the relator's agent applied at the 
 defendant's office for a copy of the number for March 1 1th and the defendant 
 told his assistant to look it up and deliver it, which was done. The de- 
 fendant swore that he had not examined the back numbers at all and knew 
 nothing of the libel. The Lord Chief Justice intimated that in those cir- 
 cumstances no jury would ever find the defendant guilty of criminally 
 publishing the libel. 
 
 B. V. Barnard, Ex parte Lord Bonald Gower, Times for Jan. 13th, 
 1S79. 
 
 A defendant on the trial of an}^ information or indict- 
 ment may give evidence to show that the alleged libel 
 was privileged by reason of the occasion ; and, unless 
 such privilege be absolute, the prosecutor may rebut
 
 388 CRIMINAL LAW. 
 
 this defence by evidence of express malice ; precisely as 
 in civil cases ; antc^ cc. YIII. and IX. 
 
 Except in such cases of privilege it is quite unneces- 
 sai-y to prove malice in any criminal proceeding for a 
 defamatory libel ; it is enough that the defendant pub- 
 lished 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. Biinlett^ 3 
 B. & Aid. 95.) 
 
 The law is otherwise in Scotland ; there malice must be 
 proved in all criminal proceedings, though it need never be in 
 civil. (1 Hume, 342 ; Borthwick, 190, 195.) 
 
 But it is in the matter of justification that the main 
 difference lies between civil and criminal proceedings. 
 In a civil trial, as we have seen, ante^ c. YII., the truth 
 of the matters charged in a libel was always a perfect 
 answer to the action ; the plaintiff was never allowed 
 to recover damages for an injury done to a reputation to 
 which he had no right. But in all criminal proceedings, 
 by the common law, the truth of the libel constitutes no 
 defence. 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 sting liim to a breach of the peace than if some false- 
 hood 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 punishment. But now, by 
 the 6th section of Lord C'ampbell's Act (6 & 7 Yict. 
 c. 96), "On the trial of any indictment or information 
 for a defamatory libel, the defendant having pleaded
 
 /USriFICATION. 389 
 
 siicli plea as iiercinafter 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 matters charged as a defence to such indictment or 
 information, it shall be necessary for the defendant, in 
 pleading to 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 prose- 
 cutor shall be at liberty to reply generally, denying the 
 whole thereof. 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 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 justifi- 
 cation : Provided also, that, in addition to such plea, it 
 shall be competent to the defendant to plead a ^^lea 
 of not guilty : Provided also, that nothing in this Act 
 contained shall take away or prejudice any defence under 
 the plea of not guilt}^, wliicli it is now competent to the 
 defendant to make under such plea to any action or in- 
 dictment, 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
 
 390 CRIMINAL LAW. 
 
 maliciously and unnecessarily 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. More- 
 over, the statute does not apply in cases of blasphemous, 
 obscene, or seditious words. (R. v. Duffy ^ 2 Cox, C. C. 
 45.) 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 statu- 
 tory conditions are complied with." Wherever the Act 
 does not apply, the law remains still as it was settled 
 prior to that Act. Hence a magistrate at the preliminary 
 investigation of a charge of libel, whether imder s. 5 of 
 the 6 & 7 Vict. c. 96, or at common law, has no power 
 to receive and perpetuate any evidence of the ti'uth of 
 the matters charged. {R. v. Toivnsend^ 4 F. & F. 1089 ; 
 ]0 Cox, C. C. 35G; R. v. Sir Robert Carden, 5 Q. B. 
 D. 1; 49 L. J. M. C. 1 ; 28 W. E. 133; 41 L. T. 
 504 ; 14 Cox, C. C. 359.) 
 
 Tlius 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. That there should be a 
 criminal ren^edy as well as a civil one is clearly necessary, for 
 most libellers are penniless, and a civil action has no terrors for 
 them. The piaintifi' will never get his damages. In fact — as 
 it appears from a recent case — 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, calculated to increase its circula- 
 tion in these degenerate days. It is clear, therefore, that there 
 must be a criminal as well as a civil remedy for libel. 
 
 But is it essential that there should be two criminal remedies? 
 Having regard to the number of criminal prosecutions for libel 
 in the present day, and to the recent decision in Labouchere's 
 case {R. v. Garden, sn^^ra), it deserves consideration wliether
 
 REMEDIES FOR LIBEL. 391 
 
 the remedy by indictment — involving as it does, a triple in- 
 vestigation of the charge, before the magistrate, the grand jury, 
 and the petty jury — might not be abolished. The remedy by 
 way of criminal information would insure the punishment of all 
 offenders in whose conviction the public were interested, while 
 the numerous petty indictments for libel which are obviously 
 vexatious, and tendered solely through personal malice and ill 
 will, would be discouraged and gradually disappear. Moreover, 
 on the argument of the rule, the defendant himself may make 
 an affidavit, Avhereas in jDroceeding by indictment, the de- 
 fendant's mouth is more or less closed. If one or two of the 
 rules relating to criminal information were altered, especially 
 that compelling the relator to forego his civil action, I think it 
 would be found that the lesser criminal remedy might safely be 
 dispensed with, and that no offender, whose publications were 
 a serious outrage on society, would escape the punishment he 
 so justly merited, although the number of prosecutions would 
 thereby be greatly diminished. 
 
 Since the above remarks were written, the Select Committee 
 of the House of Commons appointed to inquire into the Law 
 of Newspaper Libel, have published a Report in which they 
 recommend "that no criminal prosecution shall be commenced 
 against the proprietor, publisher, editor, or anyone responsible 
 for the publication of a newspaper, for any libel published 
 therein, without the jiat of the Attorney-General being first 
 obtained." No doubt in this way a certain number of frivolous 
 prosecutions might be prevented. But I doubt if the Attorney- 
 General would approve of so serious an addition to his already 
 arduous duties. For I conceive it would be the duty of the 
 Attorney-General, under the new system, to go into the facts of 
 each case, and to carefully consider whether or no it would be 
 for the public benefit that this particular defendant should be 
 prosecuted. Unless he did so, the new rule would soon become 
 nugatory, and the juit would be granted whenever the words 
 amounted to a libel in law. The recommendation of the Com- 
 mittee is confined, it will be observed, to the proprietors and 
 'liters of newspapers. Why should it not be extended to all 
 cases of constructive publication ? Surely a master-printer, or 
 a bookseller, should be included ; and why not the publislier of 
 a book as well as of a newspaper ? But supposing tlic Com-
 
 392 CRIMINAL LAW. 
 
 mittee to have considered themselves restricted to the Law of 
 Newspaper Libel, they have included one person who it seems 
 to me deserves no protection, and that is the acting editor, the 
 person actually in charge of the paper at the time of publica- 
 tion. It is his fault that the libel appeared ; he professes to 
 understand his business ; he is paid by his employers to 
 supervise the paper and exclude all libels ; and if through 
 carelessness or ignorance he omits to do his duty, he deserves 
 punishment, at least as much as a medical man who, through 
 culpable negligence, kills, when he might have cured, a patient. 
 The Committee very properly grant no immunity to the actual 
 composer and author of the libel. 
 
 There will be some difficulty in working out the recommenda- 
 tion of the Committee. Is the Attorney-General to hear only 
 the prosecutor's story? If so, in most cases nothing will be 
 easier than for an angry and vindictive prosecutor to obtain the 
 fiat on an ex iKtrta statement. In cases of libel, malignant 
 feelings are perhaps more thoroughly aroused than in any other 
 criminal proceedings. And even where the prosecutor would 
 scruple to mislead the law^ officer of the Crown, he may bond fide 
 and on good orounds believe an innocent man to be the author 
 of the libel of which he complains, as in the recent case of Sir 
 Francis Truscott ; or he might honestly assert that the defendant 
 was the acting editor of a newspaper at the time of publication, 
 whereas he was then away ill in the country, as was Mr. Gutch, 
 ante, p. 8G4. Without calling on the defendant for his version 
 of the case, the Attorney-General could not refuse his fiat in 
 such cases as B. v. Ledger, ante, p. 50, or as Lambri's case, 
 or as R. v. Truscott. Yet if the Attorney-General is to hear 
 both sides and thoroughly investigate the matter, he is doing 
 informally precisely what the Court of Queen's Bench would 
 do before allowing a criminal information to be filed. And 
 surely if the Attorney-General granted a fiat, it Avould be quite 
 unnecessary that the matter should be again investigated before 
 a police magistrate. It cannot be necessary that the case should 
 be gone into four times : once before the Attorney-General, 
 next before a magistrate, then before the gi-and jury, and lastly 
 in open court before the petty jury. Omit, therefore, the hear- 
 ings before the magistrate and the grand jury, and let the case 
 proceed direct to the trial in open court, as soon as the fio.t has
 
 REMEDIES FOR LIBEL. 393 
 
 been obtained : and wliat is the procedure so devised, but an 
 exact reproduction of the ex officio information ? It is no un- 
 common experience to those who study the suggestions of 
 would-be law-reformers to discover that the schemes which 
 they advocate as novel expedients certain to cure some crying 
 evil, are but resuscitations of ancient methods of procedure, 
 which doubtless for some good reason have long ago fallen into 
 disuse. I venture therefore to retain my former opinion, 
 expressed above, that the best method of avoiding the difficulty 
 would be by abolishing altogether indictments for defamatory 
 libels, and by allowing criminal informations to be filed in all 
 cases wherein the Court shall be of opinion that the civil remedy 
 by action is an insufficient protection to the public.
 
 CHAPTEE XIV. 
 
 BLASPHEMOUS WORDS. 
 
 It is a misdemeauonr, punisliable by indictment and 
 by criminal information, to speak, or write and publish, 
 any profane words vilifying or ridiculing God, Jesus 
 Clu'ist, the Holy Ghost, the Old or New Testament, or 
 Christianity in general, with intent to corrupt the public 
 morals, to shock and insult believers, or to bring the 
 established religion into hatred and contempt. 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 Coui-t. 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 
 Eichard Carlile, in 1820, were condemned to find siu-e- 
 ties for their good behaviour throughout the remainder 
 of their lives. J Also under the 60 Geo. III. and 1 Geo. IV. 
 c. 8; s. 1, the Court may after conviction make an order 
 
 * In Scotland up till the year 1813 blasphemy was in certain cii-cumstances 
 a capital offence. The last 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 in crude anticipations of Materialism. He was hanged 
 on January 8th, 1697, buried beneath the gallows, and all his moveables 
 forfeited to the Crown,
 
 BLASPHEMY. 
 
 395 
 
 for the seizure of cojDics of the bLasphemous libel in 
 the possession of the prisoner or in the possession of any 
 person to his use. (See the Statute in Appendix C. 
 ^;o-sf, p. 669.) 
 
 The intent to corrupt the public morals, to shock and 
 insult believers, or to bring the established religion into 
 hatred and contempt, is an essential element in the 
 crime. Actus non facit reum, nisi mens sit rea. The 
 existence of such an intent is a question of fact for the 
 jury, and the onus 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 scuitHous and 
 opprobrious 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 sensibilities of others may be readily 
 inferred. If, however, the author abstains from ribaldry 
 and licentious reproach, a similar design may still be 
 inferred if it be found that he has deliberately had 
 resort to sophistical arguments, that he has wilfully 
 misrepresented facts within his knowledge, or has in- 
 dulged 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 desii-es to pervert and 
 mislead the ignorant ; or at all events that he is crimi- 
 nally indifferent to the distinctions between right and 
 wrong. But even though the work is free from all 
 offensive levity, sarcasm, and sophistry, and is in fact 
 the honest and temperate expression of the religious 
 opinions conscientiously held and avowed by the writer, 
 still it does not follow, as our law at present stands, that 
 the author should be acquitted. It will still be the duty 
 of the Judge to consider Avhat would be the effect of a 
 general dissemination of those opinions. If the doctrines 
 maintained are so monstrous that their direct tendency
 
 396 BLASPHEMOUS WORDS. 
 
 is to subvert religion, to destroy morality, and "to dis- 
 solve all the bonds and obligations of civil society," 
 then the maxim applies that '' Everyman must be taken 
 to have intended the natural and necessary consequences 
 of his act," and the Judge will direct a conviction. 
 
 It is very difficult, however, to say in what cases a judge iu 
 the present day would feel it his duty so to direct the jury. 
 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 
 may well be doubted whether the free discussion of any doctrines, 
 however heretical, can in any case tend to subvert the Truth. 
 " For, if we be sure we are in the right," says Milton in 
 his Areopagitica (p. Q)h, 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 of 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." Magna est Veritas et prae- 
 valehit And it may also be doubted how far the reported 
 decisions would bind a judge in the present day. For the 
 heretical writings of the last century were written as a rule by 
 uneducated and immoral men, and were filled with foul and 
 offensive passages, and were therefore deservedly punished : 
 whereas in the present day heretical opinions are often held 
 and advocated by men of culture and refinement, who in- 
 stinctively avoid giving wanton offence to their more orthodox 
 fellow-citizens. Again, there is one argument frequently 
 adduced in the earlier cases in favour of prosecutions for 
 blasphemy — that all attacks upon the established religion tend 
 to destroy the solemnity of an oath " on which the due ad- 
 ministration of justice depends," and thus "the law will be 
 stripped of one of its principal sanctions — the dread of future 
 punishment." The strength of this argument is now seriously 
 impaired by the Acts recently passed, permitting even atheists 
 and persons who do not believe in a future life to give evidence 
 ur law courts. (See the 1 & 2 Vict. c. 105, s. 1 ; 32 & 83 
 
 m
 
 SPECIAL INTENT. 397 
 
 Vict. c. 68, s. 4; 33 & 3-t Vict. c. 49, s. 1.) But from the 
 decided cases, it would seem that " Christianity is part and 
 parcel of the law of England." * At all events, it is the estab- 
 lished religion of the land. Hence to attack Christianity in 
 general by striking at its very roots cannot fail, it is considered, 
 to wound the religious feelings of others, and to excite hatred 
 and contempt against the Church. {R. v. Woolston, Str. 834 ; 
 Fitzgib. 66 ; 1 Barnard. 162.) Again, to deny the existence or 
 goodness of God must tend to subvert all law and all morality, 
 and to destroy the peace and good order of society. In these 
 two cases, therefore, even in the absence of any indecent or 
 offensive expressions, the jury would still probably be directed 
 that a criminal intent must be presumed, although it is clear 
 that the author's purpose was the hona jide dissemination of 
 his peculiar views. 
 
 But in all other cases I think that the jury would be told 
 that the intent to subvert religion, and to deprave the public 
 morals, must be proved as a fact to their satisfaction before they 
 can convict ; and that if they are of opinion that the author's 
 attack on some particular doctrine, however generally accepted 
 and received, was made honestly with the conscientious desire 
 of arriving at the truth, then the prisoner is entitled to an 
 acquittal. 
 
 In all cases in which a criminal intent is not presumed 
 under the maxim mentioned above, it is not blasphemy 
 to seriously and reverently propound any opinions con- 
 scientiously entertained by the accused. Honest error 
 is no crime in this country so long as its advocacy be 
 rational and dispassionate and do not degenerate into 
 fanatical abuse of Christianity in general, or into scur- 
 rilous attacks upon individuals. " Every man may fear- 
 
 * Per Kelly, C.B., L. R. 2 Ex. 234. Lord Hale first uttered this dictum 
 in R. v. Taylor, 1 Ventr. 293 ; 3 Keb. 607. It was repeated by Ashurst, J., 
 in R. V. Williams, and by many other judges. But Archbishop Whately 
 said he never could understand its precise meaning, and the Conmiissioners 
 on Criminal Law (6th Report, p. 83) have done their best to explain it 
 away. See also Jefferson's Letter to Major Cartwright, puljlished in Cart- 
 wright's " Life and Correspondence."
 
 398 BLASPHEMOUS WORDS. 
 
 lessly advance any now doctrines, provided he does so 
 with proper respect to the religion and government of 
 the conntry." {Per Best, J., in R. v. Burdett (1820), 
 4 B. & Aki. 132.) "I woukl have it taken notice of 
 that we do not meddle with any differences of opinion, 
 and that we iuterjDose only where the very root of Chris- 
 tianity is struck at." [Per Eaymond, C. J., in R. v. 
 lFoo/5fo?^(1729), Str. 834; Fitzgib. 66 ; 1 Barnard. 162.) 
 The defendant cannot plead a justification : nor can 
 he be permitted at the trial to argue that his blasj^he- 
 mous libel is true. {Per Lord Abbott, C. J., in CooJce 
 V. Hughes, E. & M. 115.) 
 
 The last trial for blasphemy took place at the Bodmin 
 Summer Assizes, July, 1857, before Coleridge, J., his son, the 
 present Loixl Coleridge, C. J., being counsel for the prosecution. 
 The prisoner had scribbled some disgusting language concerning 
 Jesus Christ on a gate, and was convicted of a blasphemous 
 libel, but was subsequently discovered to be insane. {R. v. 
 Pooley.) 
 
 Illustrations. 
 
 It is blasphemy to write and pulilisli tliat Jesus Christ is an impostor, 
 the Christian religion a mere fable, and those who believe in it intidels 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 
 whomsoever -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. 
 
 B. v. JVnddinyfon, 1 B. «& C. 26. 
 
 In the last case Abbott, C.J., parried a cj^uestion asked him by one of 
 the jurymen at the trial whether every publication which denied the 
 divinity of Jesus Christ was an unlawful libel, and the Court of King's 
 Bench gave no opinion on the point : it was unnecessary so to do. I 
 apprehend, however, that a controversial work in which a Unitarian divine 
 while expressing his reverence for Christ as a Great Teacher yet denied 
 His Deity, Avould never in the present day be deemed blasphemous, if 
 written in a reverent and temperate tone and expressing the conscientious 
 convictions of the author (in spite of such cases as i?. v. Clendon (1712), cited
 
 BLASPHEMY. 
 
 599 
 
 2 Str. 789 : E. v. Hall (1721), 1 Str. 416, and iZ. v. Hive (175G), Dig. L. L. 
 83). 
 
 Reflections on the old Testament are as bad as on the New. 
 
 R. V. Hdherington, 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. Blackbiu-n, J., expresses his disapproval of 
 their finding in 
 
 k V. HicJclm, L. R. 3 Q. B. 374 ; 37 L. J. Jk[. C. 89 ; 16 W. R. 
 803 ; 11 Cox, C. C. 19 ; 18 L. T. 395. 
 To deliver a lecture publicly maintaining that the character of Christ is 
 defective, and his teaching misleading, and that the Bible is no more in- 
 spired than any other book, was held blasphemy by the Court of Exchequer 
 .without any regard to the style of tlie lecture, or the religious convictions 
 of the lecturer. [But that was a civil case in which the criminal intention 
 might not be considered so essential.] 
 
 Cowan V. MUhourn, L. R. 2 Ex. 230 ; 36 L. J. Ex. 124 ; 15 W. R. 
 750 ; 16 L. T. 2.90. 
 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 be- 
 tween learned men upon particular controverted points." 
 
 R. V. JFoolston, 2 Str. 834 ; Fitz. 66 ; 1 Barnard. 162. 
 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), 3 B. & Aid. 161 ; 1 Chit. 451. 
 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 Avhole 
 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 proceedinos 
 dill not extend to such a colourable reproduction of a blasphemous book ; 
 and that it is unlawful to publish even a correct account of the proceedings 
 in a court of justice, if sucli an account contain matter of a scandalous 
 blas2>hemous, or indecent nature. 
 
 R. V. Alarij 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. 407. 
 For other cases of blasj^hemy at common law, see 
 R. V. Ahcood (1618), Cro. Jac. 421. 
 R. V. Taylor, Ventris. 293 ; 3 Keble, 607. 
 R. V, Annet (1763), 3 Burn. Eccl. Law, 386, 9th ed. 
 R. V. Wilkes (1763), 4 Burr. 2527 ; 2 Wils. 151. 
 Paterson's Case (1843), 1 Brown (Scotcli), 629. 
 Robinson's Case (1843), ib. 643.
 
 400 BLASPHEMOUS WORDS. 
 
 In aid of the common law, many statutes have at dif- 
 ferent times been passed to pnnisli particular species of 
 blasphemy. Of these the following appear to be still 
 unrepealed : — 
 
 " Whatsoever person or persons shall deprave, despise, 
 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 otherwise contemn, 
 despise, or revile the said most blessed Sacrament, shall 
 suffer imprisonment of his or their bodies and make fine 
 and ransom at the king's will and pleasure." (1 Edw. 
 YI. c. 1, s. 1.) 
 
 " Any vicar or other minister whatsoever that shall 
 preach, declare, or speak anything in the derogation or 
 depraving of the Eook of Common Prayer, or anything 
 therein contained, or of any part thereof," shall on con- 
 viction for the first offence suffer forfeiture of one year's 
 profit of benefices and six months' imprisonment, and for 
 the second offence, one year's imprisonment and depriva- 
 tion, and for the thii'd offence, deprivation and imprison- 
 ment for life : or, if not beneficed, for the first oft'ence 
 imprisonment for one year, and for the second offence 
 imprisonment for life. (2 & 3 Edw. YI. c. 1, s. 2 ; 
 1 Eliz. c. 2, s. 2.) 
 
 Any person whatsoever, lay or clerical, who " 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 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. YI. 
 c. 1, s. 3 ; & 1 Eliz. c. 2, s. 3.)
 
 STATUTES. 401 
 
 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 main- 
 taining or affirming any doctrine directly contrary or 
 repugnant to any of the Articles agreed on in the Con- 
 vocation holden at London in 1562, shall be deprived of 
 his living. (13 Eliz. c. 12, s. 2.) 
 
 The statute 3 Jac. I. c. 21, as to players, was repealed 
 in 1843 by the 6 & 7 Yict. 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 maintain that there are 
 more Gods than one, or shall deny the Cliristian religion 
 to be true, or the Holy Scriptures of the Old and JN^ew 
 Testament to be of divine authority," he shall, on con- 
 viction by the oath of two or more credible witnesses, be 
 deprived of all offices, civil, ecclesiastical, and military, 
 unless he renounce his errors ^vithin four months from 
 the date of his conviction ; and for a second offence he 
 shall be declared unable to sue in any court of law or 
 equity, to be 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 magistrate within four days 
 after such words were spoken, and the prosecution must 
 be within thi'ee months after such information. (9 Wm. 
 III. c. 35 [c. 32 in the Statutes at Large], as amended 
 by 53 Geo. III. c. 160.) 
 
 But these statutes do not affect or alter the common 
 law [R. V. Carllle, 3 B. & Aid. 161 ; 11. v. ^YilUams, 26 
 Howell's St. Tr. 656) ; nor will their repeal. (A', v. Wad- 
 d'lmjton, 1 B. & C^ 26.) 
 
 i^y the Iku'ial Laws Amendment Act, 1880 (43 & 44 
 Yict. c. 41, s. 7), any person who shall at any burial
 
 402 BLASPHEMOUS WORDS. 
 
 under the Act, " under colour of any religious service or 
 otherwise, in any churchyard or graveyard, wilfully 
 endeavour to bring into contempt or obloquy the Chris- 
 tian religion, or the belief or worship of any church or 
 denomination of Chi-istians, or the members or any 
 minister of any such chiu-ch or denomination, or any 
 other person, shall be guilty of a misdemeanor." 
 
 In former days the ecclesiastical courts "were empowered_^by 
 the canon law and variotis statutes to punish with penance and 
 excommunication, and even with imprisonment and death, any 
 person guilty of blasphemy, heresy, and schism. But by the 1 Eliz. 
 0. 1, s. 6, all statutes relating to heresy were repealed ; and by 
 the 29 Car. II. c. 9, s. 1, the writ de haeretico comhurendo was 
 abolished ; but s. 2 of the same Act expressly provides " that 
 nothing in this Act shall extend, or be construed to take away 
 or abridge the jurisdiction of Protestant archbishops or bishops, 
 or any other judges of any ecclesiastical courts, in cases of 
 atheism, blasphemy, heresy, or schism, and other damnable 
 doctrines and opinions, but that they may proceed to punish 
 the same according to His Majesty's ecclesiastical laws, by ex- 
 communication, deprivation, degradation, and other ecclesias- 
 tical censures, not extending to death, in such sort and no 
 other as they might have done before the making of this Act, 
 anything in this law contained to the contrary in anywise not- 
 withstanding," By the 53 Geo. III. c- 127, s. 3, it is enacted 
 that " no person who shall be pronounced or declared excom- 
 municate shall incur any Civil Penalty or Incapacity whatever, 
 in consequence of such Excommunication, save such Imprison- 
 ment, not exceeding Six Months, as the Court pronouncing or 
 declaring such Person Excommunicate shall direct." 
 
 But no blasphemous publication, which is punishable in the 
 secular courts, can be taken cognizance of in the ecclesiastical. 
 For " where the common or statute law giveth remedy in foro 
 seculari (whether the matter be temporal or spiritual) the 
 conusance of that cause belongeth to the King's temporal 
 Courts only." (Coke upon Littleton, 96 b., and see PhilUmore 
 V. Machon, 1 P. D. 481.) It is then only over blasphemous 
 libels, not punishable hy the common law or imder any statute,
 
 ECCLESIASTICAL COURTS. 403 
 
 that the ecclesiastical courts have jurisdiction. And here it 
 must be remarked that 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 : 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 
 Archhishojj of Canterhury, 11 Q. B. 649. See Year Book, 
 34 H. VI., fo. 38 (1453) ; Prisot c. 5 ; Fitzh. Abr. quare imp. 89; 
 Bro. Abr. qu. imp. 12.) And indeed there seems strong authority 
 for holding that at the j)resent day the Ecclesiastical Courts no 
 longer possess any criminal jurisdiction over laymen. In 
 
 Burder 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 pronouncing 
 the marriage null and void, which was clearly within his power, 
 and did not impose any punishment or penance on the defendant. 
 {Woods V. Woods, 2 Curt. 51G, July ISth, 1840.) And in 
 Pliilllmore v, MacJton, 1 P. D. 481, Lord Penzance says : 
 "Speaking 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 enforce- 
 ment of such powers, where they still exist, if they do exist, is 
 likely to benefit the community." We may consider, therefore, 
 that the criminal jurisdiction of the ecclesiastical courts over 
 libels published by laymen is obselete : their jurisdiction over 
 civil proceedings for defamation is expressly taken away by the 
 18 & 19 Vict. c. 41, s. 1. 
 
 t) D 2
 
 CHAPTER XV. 
 
 OBSCENE WORDS. 
 
 It is a misdemeanoiu- piiuisliable by indictment and 
 by information to publish, obscene and immoral books 
 and pictures : for such an act is destructive of morality 
 in general, and may affect all tlic subjects of the realm. 
 
 The test of obscenity is this : — " Whether the ten- 
 dency 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 Cockburu, C. J., in B. v. HicJcUn^ 
 L. E. 3 Q. B. 371 ; 37 L. J. M. C. 89 ; IG W. E. 801 ; 
 18 L. T. 395 ; 11 Cox, C. C. 19.) 
 
 Similarly it is a crime to speak vicious and immoral 
 words, provided they be uttered before a large assembly, 
 so as to affect the mass of society : for else there is no 
 detriment to the public. 
 
 Obscene words and libels are apparently within the 
 jurisdiction of Courts of Quarter Sessions ; not being 
 excepted by the 5 & 6 Yict. 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 Yict. c. 100, s. 29.) 
 
 Ilhistratiouii. 
 
 Wilkes was lined X'500 and imprisoned lor a year for printing and pnb- | 
 lisliing " An Essay on Woman." 
 
 R. V.John Wilhes, 4 Burr. 2527 ; 2 Wils. lol ; Dig. L. L. G!).
 
 OBSCENE WORDS. 405 
 
 Actors have been pvosccnted for performing obscene play.s. 
 
 Treniayne's Entries, 209, 213, 214, 215 ; Str. 790. 
 The obscene words must be set out in the indictment verbatim. 
 
 Bmdlaucjh (h Bescmt v. The Queen, (C. A.) 3 Q. B. D. 607 ; 48 L. J. 
 (M. C.) 5 ; 26 W. E. 410 ; 38 L. T. 118 ; 14 Cox, C. C. 68. 
 
 " Obtaining and 2Drocuring " obscene works for the 
 purpose of uttering and selling them is a misdemeanour 
 indictable at common law ; for it is an overt act taken 
 in pursuance of an unlawful intention : but merely 
 " preserving and keeping thein 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." (Fer Lord 
 (*ampbell, C. J., in Diigdalc v. Rerj.^ Dears. C. C. 64 ; 1 
 E. & B. 425 ; 22 L. J. M. C. 50 ; 17 Jur. 546.) 
 
 By the 20 & 21 Yict. c. 83, if any one reasonably 
 believes that any obscene books, or pictures, are kej)t in 
 any place for the purj)Ose 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 j^icture 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. 
 
 (iii.) That such publication would be a misdemeanour 
 proper to be prosecuted as such. 
 
 Thereupon the magistrate or justices issue 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 sliow cause A\liy siicli books
 
 4o6 OBSCENE WORDS. 
 
 and pictures sliould 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 satis- 
 fied 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 cer- 
 tiorari will be granted, in spite of the 2 & 3 Yict. c. 71, 
 s. 49, to bring it up and quash it. {^Ex imrte Bradlaugli^ 
 3 Q. B. D. 500 ; 47 L. J. M. C. 105 ; 26 W. E. 758 ; 
 38 L. T. G80.) 
 
 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 recognisance, within seren 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 prosecuted, the Court of Quarter 
 Sessions may order the books and pictures to be de- 
 stroyed. (See the Act in extenso in Aj)pendix C, jwst^ 
 p. 680.) The death of the complainant after the issuing 
 of the summons will not cause the proceedings to lapse. 
 {R. V. Truclove, 5 Q. B. D. 336 ; 49 L. J. M. C. 57 ; 28 
 W. E. 413 ; 42 L. T. 250 ; 14 Cox, C. C. 408.)
 
 OBSCENE BOOKS, ETC. 407 
 
 If the work be in itself obscene, its publication is an 
 indictable misdemeanour, and the work may be seized 
 under this Act, however innocent may be the motive of 
 its publisher. {R. v. IlicJclin, L. E. 3 Q. E. 371 ; 37 
 L. J. M. C. 89 ; 16 W. E. 801 ; 18 L. T. 398 ; 11 Cox, 
 C. C. 19.) 
 
 If any point of law arises under this Act, the magis- 
 trates or justices may state a case for the opinion of a 
 Superior Court, under the 20 & 21 Vict. c. 43, irrespec- 
 tive of the power of appeal given by s. 4. That the libel 
 is an accurate report of a judicial proceeding is no defence, 
 if it contain matter of an obscene and demoralizing charac- 
 ter. {Steele v. Brannan, L. E. 7 C. P. 261; 41 L. J. M. 
 C. 85 ; 20 W. E. 607 ; 26 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. lY. c. 83, 
 s. 4, as explained by the 1 & 2 Vict. c. 38, s. 2.) 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 Con- 
 fessional Unmasked," intended to expose the abuses of the Eonian Catholic 
 discipline, and to promote the spread of the Protestant religion. But how- 
 ever praiseworthy their motive may appear, many passages in the book were 
 necessarily obscene, and it was seized and condemned as an obscene libel. 
 
 IL V. HicJclm, L. R. 7 C. P. 261 ; 37 L. J. M. C. 89 ; 16 W. R. 
 801 ; 18 L. T. 395 ; 11 Cox, C. C. 19. 
 
 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 19tli,
 
 4o8 OBSCENE WORDS. 
 
 1870, when the jury, being unable to agree as to the obscenity of the boulc, 
 Avere discharged without giving any verdict. The Union thereupon pub- 
 lished "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 oljscene l>ooks. Held that this decision was correct. 
 
 Stede V. Brannan, L. R. 7 C. P. 261 ; 47 L. J. M. C. 85 ; 20 
 W.R. 607; 26L. T. 509.
 
 CHAPTER XVI. 
 
 SEDITIOUS WOEDS. 
 
 Seditious words may be defined generally in the 
 words of GO Geo. III. and 1 Geo. TV. c. 8, s. 1, as any 
 words which tend "to bring into hatred or contempt the 
 person of his Majesty, his heirs or snccessors, or the 
 Eegent, 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 Chui'ch or State 
 as bylaw established, otherwise than by lawful means." 
 
 Seditious words may in some special cases amount to 
 Treason or to Treason-felony. This chapter will, there- 
 fore, be divided into 
 
 I. — Treasonahle Words. 
 
 (i.) Words merely spoken. 
 
 (ii.) Words written or printed, but not published, 
 (iii.) Words wiitten or printed, and published. 
 
 II. — Seditions Words. 
 
 (i.) Words defamatory of the Sovereign himself, 
 (ii.) Words defamatory of the King's Ministers and 
 GoA^ernmont.
 
 41 o SEDITIOUS WORDS. 
 
 (iii.) Words defamatory of the Constitution and of 
 
 onr Laws generally, 
 (iv.) Words defamatory of either House of Parlia- 
 ment, or of the members thereof, 
 (v.) Words defamatory of Courts of Justice, and of 
 the Judges thereof. 
 {ci}) Superior Courts. 
 (^.) Inferior Courts. 
 
 I. — Treason and Treason- Feloiiij. 
 
 (i.) Words merely sjJoJcen against the king or his 
 ministers cannot amount to treason. It was resolved in 
 Hugh Pineh case^ Cro. C*ar. 117 (overruling several 
 arbitrary decisions of earlier date), "that, unless it were 
 by some particular statute, no words will be treason."'"' 
 There is no such statute ; but by s. 3 of the 11 & 12 
 Vict. 0. 12, to express, utter, and declare, hy ojpen and 
 advised speaking., certain traitorous compassings, imagina- 
 tions, inventions, devices, or intentions, is made treason- 
 felony. (See the section in ApjDcndix. The words in 
 italics were not in the earlier statutes to the same 
 effect.) 
 
 But words accompawjing any act may be given in evi- 
 dence to explain the intention with which such act is 
 done. 
 
 * The story so frequently repeated that in the reign of Edward IV., 
 Thomas Bmxlett 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, and Folkard, 
 p. 619), has been proved by Hallam to be mythical. The charge against 
 Burdett was of a much more serious nature ; and these idle Avords of his are 
 not anywhere alluded to in the indictment against him. " Middle Ages," 
 c. viii. ad fin.
 
 TREASON. 411 
 
 (ii.) "Words written or printed, bnt not inihlhhcd.^ can- 
 not be treason at common law : and they do not consti- 
 tute an overt act of treason within the meaning of the 
 25 Edw. III. c. 2. The decisions to the contrary in R. 
 V. Peacham (1615), Cro. Car. 125, 2 Cobbett's St. Tr. 
 870, and R. v. Algernon Sidney (1683), 9 St. Tr. 889, 
 893, were reversed by a private Act of Parliament in 
 1689. (See Hallam's 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 R. V. Broivn, Holt, 425 ; 11 Mod. 86, post, p. 421); 
 "maliciously advisedly and directly, by writing or print- 
 ing, to maintain and affirm," that Queen Anne was not 
 the rightful queen, that the Pretender or any else, except 
 the descendants of the Electress Sophia, had any right 
 or title to the Crown, or that an 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 was 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 puUished. 
 
 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 executed. 
 
 1{. V. JFiUiams, 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 Yict. c. 12, s. 1), 
 to compass, devise, or intend death or woimding, 
 imprisonment, or bodily harm to the person of the
 
 4 1 3 SEDiriO L 'S WORDS. 
 
 Sovereign, and sucli compassing, clcYicc, or intention to 
 express, utter, or declare, hy publisMng any 'printing or 
 writing^ or by any overt act or deed, is made high treason, 
 punishable with death. 
 
 And by the 11 & 12 Yict. c. 12. s. 3, to compass, 
 devise, and intend to dejDose the Queen, or to levy war 
 against her in order by force or constraint to compel her 
 to change her counsels, or to intimidate either House of 
 Parliament, or to stir uj) any foreigner or stranger with 
 force to invade any of her dominions ; and such com- 
 passings, devices, or intentions, or any of them, to 
 express, utter, or declare, hj iniblishing any printing or 
 writing, or hy open and advised speaking, or by any overt 
 act or deed, is made treason-felony, punishable with 
 transportation (now penal servitude) for Hfe. (See the 
 section in Appendix.) 
 
 II. — Seditiox. 
 
 It is a misdemeanour, punishable by indictment or by 
 information, 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 fined to any amount, 
 or sentenced to a term of imj)risonment 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 punishments are now abolished. 
 (60 Geo. III. and 1 Geo. lY. c. 8, ss. 1, 2, 3, 4; 11 
 Geo. lY. & 1 Will. lY. c. 73, s. 1 ; 7 Will. lY. & 
 1 Yict. c. 23.) 
 
 The offence cannot be tried at Quarter Sessions.
 
 WORDS DEFAMATORY OF THE SOVEREIGN. 413 
 
 (i.) Words defamatory of the Sovereign himself. 
 
 It is sedition to speak or publish of the King any 
 words which would be libellous and actionable ])er 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 other bad 
 motives for his policy, Avliich insinuate 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 his subjects. [R. v. Dr. 
 Bhebheare (1758), 3 T. E. 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. (E. v. Clerk (1729), 1 Barnardiston, 304; 
 B. V. Knell, 1 Barnard. 305 ; R. v. Niitt, ih. 306.) 
 
 But to assert that the King is misled by his ministers, 
 or that he takes an erroneous view of some great ques- 
 tion of policy is not seditious, if it be done respectfully, 
 with decency and moderation. 
 
 Illustrations. 
 
 The following words appeared in tlie Morning Chronicle for October 2nd, 
 1809 : — " What a crowd of blessings rush upon one's mind that might be 
 bestowed upon the country in the event of a total change of system ! Of 
 all monarchs, indeed, since the Revolution, the successor of George the Third 
 will have the finest opportunity of becoming nolily poimlar." On the trial 
 of a criminal information against the proprietor and printer of the paper for 
 libel, Lord EUenborough 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 h.'qtpened the better, then they should find the prisoners 
 guilty ; but that if they thought the passage could fairly be construed as au
 
 414 SEDITIOUS WORDS. 
 
 expression of regret that an erroneous view had been taken of public affairs, 
 and of a wish for some change in the policy and system of administration 
 under His Majesty, they might acquit them. The jury found the prisoners. 
 Not Guilty. 
 
 ' E. V. Lamhert & Perry, 2 Camp. 398 ; 3 How. St. Tr. 340. 
 To publish falsely of George IV. that he is insane is a criminal libel, as 
 it would be of any other person. 
 
 R. V. Harvey and Chapman, 2 B. & C. 257. 
 So is charging the King with a breach of his coronation oath. 
 
 Oliver St. John's Case (1615), Noy, 105. 
 To insinuate that the King is a liar and a deceiver, and to assert that he 
 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. 
 
 R. V. John Wilkes (1763), 4 Burr. 2527 ; 19 How. St. Tr. 1075. 
 
 R. V. Kearsley, ) ^. ^ ^ 
 
 r> r 7 n/ir J Dig. L. L. 69. 
 
 R. V. John IVilliarns, ) =■ 
 
 As to certain of the letters of Junius, see 
 
 R. V. Woodfall, 5 Burr. 2661. 
 
 R. V. Almon, ib. 2686. 
 
 Many dicta in tlie old text-books represent the law as stricter 
 on this point than is stated above. According to Hawkins' 
 " Pleas of the Crown," i. c. 6 (8th ed. by Cnrwood, p. G6), and 4 
 Blackstone, 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 may 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 re- 
 ported 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 distinctions that 
 the law makes between words defamatory of the king, and of 
 any other leading public character appear to be : — 
 
 (i). That the former may be criminal when only spohen; 
 whereas the latter must be written or printed and published ; 
 
 (ii). That in the case of the former it cannot be pleaded as a 
 defence that the words are true. {R.v.Francklin (1731), 9 St. 
 Tr. ; 17 Howell's St. Tr. G26.)
 
 WORDS DEFAMATORY OF THE GOVERNMENT. 415 
 
 (ii.) Words Defamatorij of the King's Ministers and 
 Government. 
 
 It is sedition to speak or publish of iudividual members 
 of the Government words which would be libellous and 
 actionable fer se, if written and published of any other 
 public character. 
 
 It is also sedition to s^^eak or publish words defama- 
 tory of the Government collectively, or of their general 
 administration, with intent to subvert the law, to pro- 
 duce 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 
 discussion of all party questions." (Per Fitzgerald, J., 
 in R. V. Sullivan, 11 Cox, C. C. 50.) 
 
 Where corrupt or malignant motives are attributed to 
 an individual minister, the words are clearly seditious. - 
 
 Where, however, no particular person is libelled, the 
 jury must be satisfied that the author or publisher mali- 
 ciously and designedly intended to subvert our laws and 
 constitution, and to excite dissatisfaction and discontent. 
 There must be a criminal intent. Eut such an intent 
 will, of course, be presumed, if the jury find that the 
 natural and necessary consequence of the words employed, 
 was "to excite a contempt of Her Majesty's Govern- 
 ment, to bring the administration of its laws into disre- 
 pute, and thus impair their operation, to create disaffec- 
 tion, or to disturb the public peace and tranquillity of the 
 realm." (E. v. Collins (1839), 9 C. & P. 45G ; IL v. 
 Lovett, ib. 462.) 
 
 In determining whether such is a natural and neces-
 
 41 6 SEDITIOUS WORDS. 
 
 sary consequence of the words employed, the jury shoukl 
 consider the state of the country and of the public mind 
 at the date of the publication : j)assages which in tran- 
 quil times might be comparatively innocent might be 
 most pernicious in a time of insurrection. {Per Fitz- 
 gerald, J., 11 Cox, C. C. 50, 59.) On the other hand, 
 the circumstances which provoked the attack may tell in 
 the prisoner's favour. If a man be smarting under a 
 grievance, or honestly indignant at some act of a govern- 
 ment official, he cannot be expected to speak or write as 
 calmly and deliberately as if he were discussing matters 
 in which he felt no special interest. {Fer Littledale, J., 
 in R. V. Collins, "d Car. & P. 460.) The jury should, in 
 every case, consider the book or newspaper article as a 
 tvhole, and in a fair, free, and liberal spirit : not dwelling 
 too much upoji isolated passages, or upon a strong word 
 here or there, which may be qualified by the context, 
 but endeavouring to gather the general effect of the 
 whole composition on the minds of the public. Con- 
 siderable latitude must be given to political writers. 
 [Per Lord Kenyon, C.J., in R. v. Reeves, Peake, Add. 
 Ca. 84; 26 How. St. Tr. 530.) 
 
 Illustrations. 
 
 To attribute " the sad state of the country to the influence of French 
 gold on those who have the conduct of aftairs," is a seditious libel, though 
 no particular minister is sijigled out; but to complain of "the mismanage- 
 ment of the navy through the ignorance and incapacity of those who have tlie 
 management of it," would (it is submitted) not be held a libel in the 
 present day. 
 
 ' E. V. Tatchin (1704), 5 St. Tr. 527 ; 14 Howell's St. Tr. 1095 ; 
 Holt, 424 ; 2 Lord Eaym. 1061 ; 1 Salk. 50 ; 6 Mod. 268. 
 
 An announcement that a collection had been made for " the relief of the 
 widows, orphans, and aged parents of our beloved American fellow-subjects, , 
 who, faithful to the character of Englishmen, preferring death to slavery, 
 were for that reason only inhumanlj^ murdered by the King's troops at orj 
 near Lexington and Concord in the province of Massachusetts on the 19tliof . 
 April last," was hehl a seditious libel on his Majesty's Government and
 
 WORDS DEFAMATORY OF THE GOVERNMENT. 417 
 
 tlieir employment of Ills ti'op.s, t^iiiUiig to foment discor.l an I to prompt a 
 rebellion. 
 
 It. V. John /fyr/f'j (al'terwarJs Jolm ILjnie Toohe) (1777), 11 St. 
 Tr. 264 ; 20 Howell's St. Tr. 651 ; Cowp. 672. 
 Articles in the Examiner declaring that an improper and cru^l method of 
 punishment wa3 practised in the King's army, and that his soldiers were 
 punished with excessive severity thereby, was declared by the jury, in spite 
 of the summing up of Lord Ellenborough, n')t to be a seditious libel on the 
 government and the military service of the king tending to excite disaffec- 
 tion in the army and to deter others from becoming recruits. 
 
 B. v. John, Hunt cC- John Ld,jh Hunt (1811), 31 Howell's St. Tr. 
 40S. 
 
 See also R. v. Been (1698), 12 :\Iod. 219 ; Holt, 422 ; Carth. 409 ; 
 2 Salk. 417 ; 1 Ld. Kaym. 414. 
 
 li. V. Laurence (1699), 12 Mod. 311. 
 
 B. V. Bedford (1714), cited in 2 Str. 789 ; Dig. L. L. 19, 121. 
 
 B. V. Bliss (1719), Sid. 219 ; Rol. 773. 
 
 B. V. Owen (1752), 18 Howell's St. Tr. 1203 ; Dig. L. L. 67. 
 
 B. V. Francklin (1731), 9 St. Tr. 255 ; 17 Howell's St. Tr. 626. 
 
 B. V. Cohhctt (1804), 29 Howell's St. Tr. 1. 
 
 B. V. Johnson (1805), 29 Howell's St. Tr. 103 ; 7 East, 65 ; 3 
 Smith, 94. 
 
 B. V. Bnrdett (1820), 4 B. & Aid. 95, 115, 314. 
 
 B. V. Collins (1839), 9 C. & P. 456. 
 
 B. V. Lovett (1839), 9 C. & P. 462. 
 
 By the statutes of iScandtilum magnatum^ 3 Etl\y. I., 
 c. 34 ; 2 Eich. II., c. 5 ; 12 Eicli. II., c. 11, ante, c. IV., 
 pp. 133 — 135, it is a crime to tell or publish false news 
 or tales of the great officers of the realm, &c. 
 
 So also in America by Act of Congress, July 14, 1798, 
 it is an indictable offence to libel the Government, 
 Congress or President of the United States. 
 
 There are old cases whicli appear to go further, and to decide 
 ithat any publication tending to beget an ill opinion of the 
 Government is a criminal libel. " If persons should not be 
 [Called to account for possessing the people with an ill opinion 
 of the Government, no Government can subsist ; for it is very 
 necessary for all Governments that the people should have a 
 good opinion of it" (.s/c). (Per Lord Holt, C.J., in Jl. v, 
 Tutchin (1704), 5 St. Tr. .');32 ; 14 Howell's St. Tr. 1127.) 
 And fiOrd l^jUenborough, (*.J., expressly lullowing this decision, 
 
 E 10
 
 4i8 SEDITIOUS WORDS. 
 
 told tlic jury in R. v. Cohheit (1804), 20 Howell's St. Tr. 49 :— 
 " It is no now doctrine that if a publication be calculated 
 to alienate the affections of the peo]3le, by bringing the 
 Government into disesteem, whether the expedient be by 
 ridicule or obloquy, ... it is a crime." If this is to be taken 
 literally, all Opposition newspapers commit such crime every 
 day. Such a doctrine, if strictly enforced, would destroy all 
 liberty of the j)ress, and is, moreover, in conflict with more 
 recent dicta : — " The peoj)le have a right to discuss any grievances 
 that they may have to complain of," i^er Littledale, J., in JR. v. 
 Collins, 9 Car. & P. 4G1, "A journalist may canvass and 
 censure the acts of the Government and their public policy — 
 and indeed, it is his duty. ... It might be the province of the 
 press to call attention to the weakness or imbecility of a Govern- 
 ment when it was done for the public good," per Fitzgerald, 
 J., 11 Cox, C. C. 54, 57. It is clearly legitimate and constitu- 
 tional to endeavour, by means of arguments addressed to the 
 people, to replace one set of ministers by another. And the 
 precise object of such arguments is to bring the ministers 
 then in office into disesteem, and to alienate from them 
 the affections of the people. Sir Francis Burdett could not 
 possibly be convicted in the present day for such an electoral 
 address as he issued on August 22nd, 1819. {See 4 B. & Aid. 
 116, 7 n.) 
 
 But I think Lord Holt's words must not be taken strictly in 
 their modern signification : we must construe them with reference 
 to the times in which he spoke. He clearly was not referring 
 to a quiet change of ministry which in no way shakes the 
 throne, or loosens the reins of order and government. In 1704 
 the present system of part3^-government was not in vogue : it 
 was barely conceived by AVilliam III., and was certainly not 
 generally understood under Queen Anne. And even in Lord 
 EUenborough's time the ministry w^ere still appointed by the 
 King and not by the people. By " the Government " both 
 judges meant, not so much a particular set of ministers, as the 
 political system settled by the Constitution, the general order i j 
 and discipline of the realm. "To subvert the Government " isj 
 the phrase employed in the earlier case of R. v. Beere, 12 Mod. 
 221; Holt, 422; and to Lord Holt's mind "subverting the' 
 Government " meant bringing in the Pretender ; to Lord Ellen-
 
 WORDS EXCITING DISAFFECTION. 419 
 
 borough's, the introduction of Jacobinism and Pted Ptcpnblicanism 
 from l^rance: not the substitution of one statesman for another 
 at tlic Council Board. 
 
 (iii.) Words Defamatory of the Comtiiuiion and of our 
 Laivs generally. 
 
 All malicious endeavours by word, deed or writing, 
 to promote public disorder or to induce riot, rebellion 
 or civil war, are clearly seditious, and may be overt 
 acts of treason. But wliere no such conscious endea- 
 voiu- is proved ; still, if the natural and necessary con- 
 sequence of any Avord, deed, or writing, be to subvert 
 our laws and constitution and to excite or promote 
 dissatisfaction and discontent amongst the people, a 
 criminal intent will be jn-esumed; and the author is 
 guilty of sedition. (B. v. Bm'dett (1820), 4 B. & Aid. 
 95 ; R. V. Collins (1839), 9 C. & P. 456.) Thus all pub- 
 lications, the tendency of which is to bring the constitu- 
 tion of the realm into hatred and contemjDt, and to 
 induce the people to disobey the laws and to defy 
 legally constituted authority, are seditious libels, for 
 which the author is criminally liable. 
 
 But mere theoretical discussions of abstract questions 
 of political science, comparisons of various forms and 
 systems of government, and controversies as to details 
 of our own constitutional law are clearly permissible. 
 And so is any hond fide effort for the repeal by con- 
 stitutional methods of any law deemed obnoxious. The 
 prosecution must satisfy the jury that the publication 
 is calculated to disturb the tranquillity of the State and 
 to lead ignorant persons to endeavour to subvert the 
 government and the laws of the realm. Without satis- 
 factory proof of such tendency, there is no evidence 
 
 E E 2
 
 420 SEDITIOUS WORDS. 
 
 of that criminal iiitcutiou wliicli is essential to constitute 
 the offence. 
 
 The old cases R. v. Brewder (IGGS), Dig. L. L. 76; R. v. 
 Harrison (ir577), 3 Keb. 841 ; Veutr. 32-i, and R. v. Bedford 
 (1714), cited in 2 Str. 789, so far as they van counter to this 
 proposition, must be considered as overruled. It seems that 
 Harrison would not have been convicted but for the Stat. 18 
 Car. II. c. 1, Avhich, to my surprise, remains still in j)^i"t 
 unrepealed. See 'post, p. 421, 2. 
 
 The jury must find, first, that the defendant in fact 
 spoke or published the Avords complained of : secondly, 
 that the words are seditious and were spoken or 
 jjublished with the intent alleged in the indictment. 
 The latter as well as the former is entirely a question 
 for the jury. The fact that the House of Commons 
 has resolved that the same publication is " a malicious, 
 scandalous and seditious libel, tending to create jealousies 
 and divisions amongst the liege subjects of Her Majesty 
 and to alienate the affections of the people of this 
 country from the Constitution," ought not to weigh 
 with the jury in the least. The defendant is not to 
 "be crushed by the name of his prosecutor." (Per 
 Lord Kenyon, C.J., in R. v. Reeves, Pcake, Add. Ca. 84.) 
 
 " In a free country like ours," says Lord Kenj'on, C. J., 
 in the same case, p. 8G, "the productions of a political 
 author should not be too hardly dealt Avitli." The jury 
 should " recollect that they are dealijig with a class- 
 of articles, which, if written in a fair spirit and hand 
 fide, might be productive of great public good, and werej 
 often necessary for public jDrotection ; " and they shoul 
 therefore " deal with them in a broad spirit, allowing 
 fair and wide margin, looking upon the whole, not oi 
 isolated words." And they should also take into theii 
 consideration the state of the coinitry and of the public
 
 WORDS INCITING TO RIOT. 421 
 
 mind at the date of the publication. {Per Fitzgerahl, J., 
 in Px. V. Sullivan, 11 Cox, C. C. 50, 59.) 
 
 liliistrations. 
 
 To assert that a pailiament would be justified in making war against any 
 king wlio broke the Social Compact, was naturally deemed seditious in the 
 days of Charles II., as tending to a renewal of the Civil War. 
 
 E. V. Breivster (1663), Dig. L. L. 76. 
 
 E. V. Harrison (1677), 3 Keble, 841 ; Ventr. 324 ; Dig. L. L. 66. 
 To assert that " the late revolution was the destruction of the laws of 
 England," or an unjustifiable and unconstitutional proceeding, and that the 
 Act of Settlement was "illegal and unwarrantable," and "had been attended 
 with fatal and pernicious consequences to the subjects of this realm," was 
 deemed seditious in the days of Queen Anne and of George II., as tending 
 to i'avour the cause of the Pretender. 
 
 E. Y.Dr. Bmwn (1707), 11 Mod. 86 ; Holt, 42-5. 
 
 E. V. Eichard Nutt (1754), Dig. L. L. 68. ^ 
 
 And see E. v. Tlwmas Fame fl792), 22 Howell's St. Tr. 358. 
 The Reverend William Winterljotham was convicted for preaching a 
 sermon on November 18th, 1792, containing tlie following words, which 
 were deemed seditious : — " Darkness has long cast her veil over tlic land. 
 Persecution and tyranny have carried universal sway. Magisterial powers 
 have long been a scouige to tlie liberties and rights of the people." He 
 was fined ^£100 and sentenced to two years' imprisonment. 
 
 E. V. IVinterhotham, 22 Howell's St. Tr. 823, 875. 
 To liabitually republish in Ireland during a time of political excitement 
 ami threatened insurrection extracts from American papers expressing sym- 
 l)alhy with tlie Fenians, and inciting all Irishmen to rebel, without one word 
 ot editorial comment or disapproval, is an act of sedition. 
 
 E. V. PigM (1868), 11 Cox, C. C. 47. 
 
 See Irish St. Tr. 1848, 1865, 1867, 1868. 
 
 Ill Ireland, newspapers containing treasonable and seditious 
 matter could, till 1875, be seized under the provisions of the 
 Peace Preservation Act (Ireland), 1870 (33 & 34 Vict. c. 9), 
 ss. 30 — 34; but these sections were repealed by the Act of 1875 
 (38 Vict. c. 14), s. 2. 
 
 By an entirely ob-oletc, but still unrepealed, section, any 
 person who shall maliciously and advisedly declare and publish 
 by writing, printing, preaching or other speaking, that the 
 parliament begun at Westminster on November 3rd, 1G40 (the 
 Long Parliament) is not yet dissolved, or that it ought still to 
 Joe in being, or hath yet any continuance or existence, or that 
 b6th Houses of Parliament or either House of Parliament have
 
 422 SEDITIOUS WORDS. 
 
 or hath a legislative power without the King, or any other 
 words to the same effect, incurs the penalties of a 'pTG&'niiinire. 
 13 Car. II. Stat. I. c. 1, s. 8. See also 6 Anne, c. 7 (al. 41), s. 2. 
 
 (iv.) Worth Defamatoru of either House of Parliament^ or 
 of the 3Iembers thereof. 
 
 It is a misdemeanour to speak or publish of individual 
 members of eitber House of Parliament, in tbeir capacity 
 as sucb, words wbicb would be libellous and actionable 
 per se, if Amtten and published of any other public 
 character. 
 
 It is also a misdemeanour to speak or publish Avords 
 defamatory of either House collectively with intent to 
 obstruct or invalidate their proceedingSj to violate their 
 rights and privileges, to diminish their authority 
 and dignity, or to bring them into publio odium or 
 contempt. — -"^ 
 
 In both cases, all such words arc also a contempt and 
 breach of privilege, punishable summarily by the House 
 itself, with fine and imprisonment. 
 
 Also by the statutes of Scamlalum magnatum, 3 Edw. I., 
 c. 34 ; 2'Eich. II., c. 5 ; 12 Eich. II., c. 11, ante, c. lY., 
 pp. 133 — 5, 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. 
 
 Illustration. 
 
 Rainer printed a scandalous libel, reflecting both on tlie House of Lords 
 and on the House of Commons, called "Robin's Game, or Seven's the 
 Main ; " he Avas tried in the Court of King's Bench, fined £50, and sen- 
 tenced to be imprisoned for two j'ears and until he should pay such line. 
 i?. V. ruiiner, 2 Barnard. 293; Dig. L. L. 125. 
 
 On three occasions the House of Commons has voted a parti-
 
 CONTEMPT OF PARLIAMENT. 423 
 
 culav publication a .scandalous and seditions libel, and a breach 
 of privilege, &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 
 ihe prisoner. {R. v. Owen (1752), 18 Howell's St. Tr. 1203, 
 1228 ; R. V. StocMale (1789), 22 Howell's St. Tr. 238 ; R. v. 
 Reeves (1796), Peake Add. Ca. 84 ; 26 Howell's St. Tr. 530.) 
 Hence the House of Commons now invariably deals with 
 offenders itself. 
 
 The House of Lords can inflict fine and imprisonment 
 for any lengtli of time. In former days the pillory was 
 sometimes added : e.(/., in the case of Thomas Morley in 
 1623, and of William Carr in 1667, wlio were sentenced 
 to stand in the pillory for libelling individual peers. 
 
 The House of Commons can inflict fine and imprison- 
 ment, and in the case of a member, expulsion. One 
 unfortunate member, Arthur Hall, suffered all three 
 penalties in 1581 for publishing a book disparaging the 
 authority of the House of Commons, and reflecting upon 
 certain individual members — see Hallam, Const. Hist., 
 Yol. 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 existing session. The prisoner 
 must be liberated on prorogation [StocJcdale v. Han- 
 sard, 9 A. & E. Ill; GrisselVs 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 pi-otccts 
 them from any action of assault or false imprisonment 
 {IIo2vardY. Gossef, 10 Q. B. 359; Burdeit 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
 
 424 SEDITIOUS WORDS. 
 
 (i?. V. Pahj, 2 Ld. Eaym. 1108 ; 7?. v. Ilohhoiise (1819), 
 2 Chit. 210). Tims, the libel for Avhich the prisoner 
 ■was committed need not he set ont in such warrant 
 {Burdcttx. Alloif, 14 East, 1; sec 1 Moore, P. V. C. 
 80) ; thongh the libel must always be set ont at fnll 
 length in either an indictment [Bradlaugli and Bcsant \. 
 The Queen (C.A.), 3 Q. E. D. GOT ; 48 L. J. M. C. 5 ; 26 
 W. E. 410; 38 L. T. 118); or a statement of Q\i\im {Harris 
 Y. Warre, 4 C. P. D. 125 ; 48 L. J. C. P. 310 ; 27 ^Y. 
 P. 461 ; 40 L. T. 429). Still less will any court of 
 common law inquire into the propriety of the commit- 
 ment 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 
 (Stoc/cdale y. Hansard, 9 A. & E. 165, 195). 
 
 The House is the best judge of its own jH'ivileges, and 
 of "what is a contempt of them. Put if on the face of 
 the warrant it lylainhj and eayressly appears that the 
 House is exceeding its jurisdiction, the courts of 
 common laAv would feel bound to order the release of 
 the prisoner. (See ib. 169 ; Hawkins, 3 PI. Cr. II., 15, 
 73, p. 219 ; E. y. Evans and another, 8 Dowl. 451.) 
 
 The House may commit for any contempt of one of its 
 committees, or of the members of any such committee ; 
 instances of such committals occurred in 1832, 1858, 
 and 1879. 
 
 So in America the House of Pej^resentatiyes has a 
 general power of committing for contempt, whether the 
 offender be a member or a stranger {Anderson y. 
 Dunn, 6 "Wheat. 204). But as with the English House 
 of Commons, the imprisonment teiminates at the ad- 
 journment or dissolution of Congress. 
 
 But with subordinate legislatiye bodies it is different. 
 Ko power of committing for contempt is inherent in 
 them {Kielley y. Carson, 4 Moore, P. C. C. 63 ; Fen-
 
 COLOXIAL LEGISLATURES. 425 
 
 ton V. Hampton^ 11 Moore, P. C. C. 317, overruling 
 dicta of Lord Denman, CJ., in StocMale v. Hansard^ 9 
 A. & E. 114; of Parke, 13., in Beaumont v. Barrett, 1 
 Moore, P. C. 0. 70); although they have, of course, 
 power to preserve order diuing their deliberations, which 
 involves a power to remove from the Chamber any 
 person obstructing their proceedings, or otherwise guilty 
 of disorderly conduct in the lyresence of the Home itself, 
 and if the offender 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 sentencing the ob- 
 structive to a term of imprisonment as a punishment for 
 his misconduct [Doyle v. Fatconer, L. Pi. 1 P. C. 328 ; 36 
 L. J. P. C. 37 ; 15 W. P. 3GG ; Attomefj- General of New 
 South Walesa. Macpherson, L. E. 8 P. C. 268 ; 7 Moo. 
 P. C. (K S.) 49 ; 39 L. J. P. C. 59). 
 
 Thus the House of Assembly of Newfoundland 
 (Kielleij V. Carson, 4 Moore, P. C. Q. 63); the Legisla- 
 tive Council of VanDiemen's Land [FentonY. Hampton, 
 11 Moore, P. C. C. 347); the House of Keys in the Isle 
 of Man {Ex parte Brown, 5 P. & S. 280 ; 33 L. J. Q. P. 
 193; 12 W. E. 821; 10 L. T. 453); and the Legis- 
 lative Assembly of the Island of Dominica [Doyle v. 
 Falconer, L. E. 1 P. C. 328; 36 L. J. P. C. 33 ; 15 W. 
 E. 366), possess no inherent powers to commit for 
 contempt. (See also Attorney- General of Netv South 
 Wales V. Macpherson, L. E. 3 P. C. 268 ; 7 Moo. P. C. 
 (N. S.) 49 ; 39 L. J. P. C. 59.) 
 
 But though such a power is not inherent in any in- 
 ferior legislatm-e, it may be expressly granted by statute ; 
 thus the Legislative Assembly of Yictoria possesses this 
 imvilege by virtue of the 18 & 19 Yict. 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
 
 426 SEDITIOUS WORDS. 
 
 Asscmllu of Victoria v. Glass, L. E. 3 P.O. 560 ; 40 L. 
 J. P. C. 17; 24 L. T. 317). 
 
 Also it is said that such a power may be acquired 
 by prescription, acquiescence and usage. (Per Lord 
 EUcnborough, C.J., in Burclett v. Ahhott, 14 East, 137, 
 and Cockburn, C.J., in Ex j)arte 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 com- 
 mitting a libeller, if indeed it has 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). 
 
 (v.) Words Defamatory of Courts of Justice and of 
 Individuat Judges. 
 
 [<() Superior Courts. 
 
 It is a misdemeanour to speak or publish of any 
 judge of a superior coiu't words which would bo libellous 
 and actionable jjer se, if written and published of any 
 other public officer. 
 
 It is also a misdemeanour to sj)eak or publish words 
 defamatory of any court of justice or of the adminis- 
 tration of the laAv 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 j^nnish- 
 able on indictment or information, with fine or impri- 
 sonment 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 
 Scandalum magnatum (3 Edw. I., c. 34 ; 2 Eich. II.,
 
 SUPERIOR COURTS. 427 
 
 c. 5; 12 Eicli. II., c. II, ante., c. IV., pp. 133 — 135), as 
 ■\yg11 as at common law. 
 
 It is immaterial wlietlier the words be uttered in 
 the presence of the Court or at a time when the Court 
 is not sitting, and at a distance from it [CraivfonVs 
 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 T^^itcr 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 spii-it. But it mnst be 
 without malignity, and not imputing corrupt or malicious 
 motives." [Per Fitzgerald, J., in R. y. Sullivan, 11 
 Cox, C. C. 50.) ''It certainly was lawful, with decency 
 and candour, to discuss the propriety of the verdict of 
 a jury, or the decisions of a judge, . . . but if the 
 extracts set out in the information contained 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 had transgressed the law, 
 and ought to be convicted. (Per Grose, J., in E. v. 
 White and others, 1 Camp. 359.) 
 
 Ilhi.strations. 
 
 To say tliat a ju<lge had been bribed, or that in any particnlar 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 
 GovcrnmeTit or <if any great man, or by any other side-motive other than a 
 simple desire- to anive at the truth and to mete out justice impartially, is a 
 seditious libel. 
 
 See ]'. V. Lord Gconjc Gordon, 22 HoweH'H St. Tr. 177. 
 
 To call the Lord Chief Justice " a traitor and a perjured judge," and to
 
 428 SEDITIOUS WORDS. 
 
 allege that a recent judgment delivered by him was treason, is a mis- 
 demeanour. 
 
 7?. V. Jcffe (1632), 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. 
 
 E. V. Hart and Uliite (1808), 30 How. St. Tr. 1168, 1345 ; 10 
 East, 94. 
 
 B. V. JVre7mum{]6l9), Popham, 135. 
 
 Butt V. Conant, 1 Brod. & Bing. 548 ; 4 Moore, 195 ; Gow, 84. 
 Hurry sued Watson for a malicious prosecution, and recovered damages 
 .£3000 : tlie corporation of which Watson was a member thereupon resolved 
 " that Mr. Watson had been actuated by motives of public justice in prose- 
 cuting Huny," and voted him ^2300 towards payment of his damages. 
 The court of King's Bench granted an information against the members of 
 the corporation. 
 
 E. V. TFatson <£• others, 2 T. E. 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, I see no misdemeanour. They appear to me to be but a tem- 
 perately 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 Com-t. Thus it is contempt of 
 Court to insult the Judge, jury or witnesses, to obstruct 
 any officer of the Court in the execution of his duty, to 
 express contempt for the process of the Court, to calum- 
 niate the parties concerned in any cause, to prejudice 
 the 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 judgment of Blackburn, J., 
 in SkijmwWs Case, L. B. 1) Q. B. 232, 241.) 
 
 In all such cases a Superior Court may interfere sum- 
 marily to protect itself and fine the offender or commit 
 him to -prison 2^i'0]'rio mohi ; and this, although no in- 
 dictable offence has been committed. (Per Lord Holt, 
 C. J., in 11 y. Rofjcrs, 7 Mod. 29.) 
 
 Illustrations. 
 Even the prisoner in the dock, who is always allowed great latitude, if 
 lie be defending himself, may be fined fcr contem];t of couit, if he peisist 
 
 I
 
 CONTEMPT OF COURT. 429 
 
 ill using blaspli •inous language ami iu appl3aug nflV'usive epitliets to the 
 residing judge in the course of his speech to the jury. 
 B. V. Davison, 4 B. & Aid. 329. 
 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. 
 
 1)1 n Pater, 5 B. & S. 299 ; 33 L. J. M. C. 142 ; 12 W. R. 823 ; 
 10 L. T. 376. 
 The nirit innocent words, if uttered in a pjoiiliai' ni inner and tone, nray 
 be a contempt of Court. For an insult ma^' be conveye;! either by language 
 or by manner. 
 
 Oarm JFilsou's Case, 7 Q. B. 1015. 
 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 attach- 
 ment for libils upon themselves, and denying that reflections upon in- 
 dividual judges are contempts of Court at all. 
 
 7Z. V. Almoii, 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. 
 Murtui's Case, 2 Russ. & Mylne, 674. 
 Macrjill's Case, 2 Fow. Ex. Pr. 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. 
 B.. V. Faulkner, 2 Mont. & Ayr. 321, 322. 
 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 tending to prepossess the minds of the public in his 
 favour or to calumniate his adversary. 
 
 Captain Perry's Case, cited 2 Atk. 469 ; 2 Dick. 794. 
 
 Mrs. Farle\fs Case, 2 Vesey, senr., 520. 
 
 Coleman v. West Hartlepool Harbour cb Raihvay Co., 8 W. R. 734 ; 
 
 2 L. T. 766. 
 In re The Cheltenham d: Sivansea Waggon Co., L. R. 8 Eq. 580 ; 
 
 38 L. J. Ch. 330 ; 17 W. R. 463 ; 20 L. T. 169. 
 
 Tichborne v. Mostyn, L. R. 7 Eq. 55, n. ; 15 W. R. 1072 ; 17 L. T. 5. 
 
 An article in a newspaper, commenting on a case still before the Court, is 
 
 a contempt, 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. 
 
 Littler v. Thompson, 2 Beav. 129. 
 
 Pioach V. Garvan, Eeacld: Huggonson, 2 Atk. 469 ; 2 Dick. 794. 
 
 Tichborne v. Mostyn, per Wood, V. C, L. R. 7 Eq. 57, n. ; 15 W. R. 
 
 1074 ; 17 L. T. 7. 
 Tichborne v. Tichborne, 39 L. .1. Ch. 3J8 ; 18 W. R. (i21 ; 22 
 
 L. T. 55. 
 Vernon, v. Vernon, 40 L. J. Ch. 118 ; 19 \V. R. 401 ; 23 L. T. 697. 
 Huriio.'i Ayres Cas Co. v. Wilde, 29 AV. 1!. 43 ; 42 L. '[\ 657.
 
 430 SEDITIOUS WORDS. 
 
 An advertisement in a newspaper offering ^100 reward for legal proof of 
 a certain marriage, sucli evidence being required in a pending snit, was 
 considered by Parker, L.C., a contempt of Court, as tending to procure false 
 evidence. (But I doubt if sucli a construction would be put on such an 
 advertisement in tlie present day.) 
 
 Tool V. Sucheverel, 1 P. Wms. 675. 
 Threats and insults addressed either to a party or a witness pending a 
 suit, whether by word or letter, are a contempt of Court. 
 
 Sviith V. Laheman, 26 L. J. Ch. 305 ; 2 Jur. N. S. 1202 ; 28 
 
 L. T. (Old S.) 98. 
 Shaw V. Shan; 31 L. J. Pr. & Matr. 35 ; 6 L. T. 477 ; 2 Sw. & 
 
 Tr. 515. 
 Be Mulock, 33 L. J. Pr. & Matr. 205 ; 10 Jur. N. S. 1188 ; 13 
 W. E. 278. 
 A fortiori, if addressed to the judge or a master. 
 
 Lechmere Charlton's Case, 2 Myl. & Cr. 316. 
 So it is a contempt for the solicitor to a defendant to publish in a news- 
 paper anonymous letters full of ai-guments in the defendant's favour, and 
 denying the facts on Avhich the plaintiff would rely at tlie trial. 
 
 Daiv V. Ele>j, L. E. 7 E^i. 49; 38 L. J. Ch. 113; 17 W. E. 
 
 245. 
 
 The publisher of a newspaper was committed for printing an article 
 
 which attacked the persons who had made affidavits in a snit in Chancery 
 
 not yet concluded, imputing to them ignorance of facts, and interest td 
 
 motives. 
 
 Fclhin V. Herbert, 33 L. J. Ch. 294; 12 AV. E. 241, 332; 9 L. T. 
 
 635 ; 10 Jur. N. S. 62. 
 See also Littler v. Thompson, 2 Beav. 129. 
 Li re William Watson, Shaw's Cases (Scotch), No. 6. 
 Still more is it a contempt of court for one committed for tiial for 
 perjury or for any of his partizans to address public meetings, alleging 
 that there is a conspiracy against him, and that he will not have a fair 
 trial. 
 
 Castro, Onsloiv's cD Wltalley's Case, L. E. 9 Q. B. 219 ; 12 Cox, 
 
 C. C. 358. 
 Shiincorth's Case, L. E. 9 Q. B. 230 ; 12 Cox, C. C. 371. 
 And even when the case is over, the solicitor for the defeated party will 
 be guilty of a contempt, if he publishes a pamphlet describing the judgment 
 pronounced as " an elaborate production, wholly beside the merits of the 
 case," with other flippant and contumacious observations. 
 
 Ex parte Turner, 3 Mont. D. & De Ct. 523, 551, 558. 
 The committee of a lunatic published a pamphlet reflecting upon persons 
 who were managing the lunatic's estate under the orders of the Court of 
 Chancery. Lord Eiskine, C, committed him to prison for contempt, and 
 the printer as well. 
 
 Ex parte Jones, 13 Ves. 237. 
 AVhere the Court of Banla-uptcy has appointed a receiver to take and
 
 CONTEMPT OF COURT. 431 
 
 liokl possession of a Ijankru^jt's property, it is a contempt of Court for tlie 
 holder of even fi valid bill of sale to forcibly oust the receiver. 
 
 E^farie Cochrane, In re Mead, L. E. 20 Ec^. 282 ; 44 L. J. Bkcy. 
 
 87 ; 23 W. K. 726 ; 32 L. T. 508. 
 And see In re Fells, Ex parte Andrews, 4 Ch. D. 509 ; 46 L. J. 
 
 Bkcy. 23 ; 25 W. R. 382 ; 36 L. T. 38. 
 And E.C parte Drake, In re Ware, 5 Ch. D. 866 ; 46 L. J. Ch. 
 105 ; 25 W. B. 641 ; 36 L. T. 677. 
 To beat and kick the officer of the Court who serves a suhpcena and to 
 compel him to eat the wax and parchment thereof is a contempt, punishable 
 by committal. 
 
 Williams v. Johns (1773), cited in the note to Elliot v. Hal- 
 maracJ:, 1 Mer. 303. 
 So is merely using abusive and violent language towards any person 
 serving the process of any Court. 
 
 Price V. Hutchinson, L. R. 9 Eq. 534 ; 18 W. R. 204. 
 R. V. Jones (1719), 1 Stra. 185. 
 If a high sheriff proceeds to address the grtxnd 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. 
 So for a civilian high sheriff to meet a judge of assize in ordinary civilian 
 dress has been deemed a contempt of Court. 
 
 Wilful disobedieuce to any laAvful order of a Court or 
 a judge is a contempt, especially if on being served with 
 a copy of the order the party expresses in defiant and 
 contemptuous language his intention to disregard such 
 order (Anon. (1711) 1 Salk. 94 ; B. v. Clement, 4 B. & 
 Aid. 218 ; J/y. Lonr/ Wellcslejfs Case, 2 Euss. & Mylne, 
 639 ; Hudson v. Tooth, 2 P. D. 125 ; 35 L. T. 820 ; 
 Martin v. 3facJconochie, 3 Q. B. D. 730 ; Combe v. Ed- 
 vjards, 3 P. D. 103). And if a plaintiff be guilty of 
 such contempt, he is liable, in addition to fine or im- 
 prisonment, to have all proceedings stayed, or even the 
 whole action dismissed and money paid into Court 
 returned to the defendant {Republic of Liberia v. Roye, 
 1 App. Cas. 139 ; 45 L. J. Ch. 297 ; 24 W. E. 967 ; 
 34 L. T. 145). A true copy of the order of the Court 
 must as a rule be served (In re Holt, 11 Ch. D. 168; 
 27 "W. E. 485 ; 40 L. T. 207). If, however, at the
 
 432 - SEDITIOUS WORDS. 
 
 time of disobedience the offender lias from any reason- 
 able sonrce knowledge that the order has been made, it 
 is immaterial that the order has not yet been duly served. 
 Notice by telegram may be sufficient (7« re Bnjant^ 
 4 Ch. D. 98; 25 W. E. 230; 3-5 L. T. 489; Ex parte 
 Langlcy^ Ex imrte Hmith^ In re Bkhop^ 13 Ch. D. 110; 
 49 L. J. Bkcy. 1 ; 28 W. E. 174 ; 41 L. T. 388. See 
 further on this point Jud. Act, Order XLII., rr. 2, 4, 5, 
 20; Order XLIY. ; Order XXXI., rr. 20, 22, and 
 Hutchinson \. Hartmont, ^\. X. 1877, p. 29 (M. E.); 
 Phosphate Seivage Co. v. Hartmont^ 25 W. E. 743.) 
 
 But where the defendant hond fide desires, bnt is in 
 fact nnable, to obey the order of the Court, such dis- 
 obedience is not wilful, and is not a contempt ( Clare 
 V. BlaJceslejj and others^ 8 Dowl. 835). Where, how- 
 GA'er, a person ordered to perform a particular act, piu'- 
 posely puts it out of his power to obey with a view of 
 evading the order of the Court, such conduct is an aggra- 
 vation of his original offence in disobeying, and is in 
 itself a contemj)t of Coiu-t. 
 
 Ill list rations. 
 
 A trustee was ordered to pay £94 14.-:. into coiirt : on the same day he 
 was adjudicated a bankrupt : the Coiirt refused to attacli liim for disobedience 
 to the order. 
 
 Cobliam v. Dalton, L. E. 10 Ch. App. Qm ; 44 L. J. C'li. 702 ; 
 
 23 W. E. 865. 
 See also Earl ofLems v. Barnett, G Ch. D. 25:2 ; 47 L. J. Ch. 144 ; 
 
 26 W. E. 101. 
 Pashler t. Vincent, 8 Ch. D. 825 ; 27 W. E. 2. 
 The defendant had illegally removed a quantity of human bones and earth 
 from the parish burial ground of Chew ]\Iagna to his own field. The Court 
 of Arches issued a monition to him to replace them. In the meantime, the 
 defendant on the marriage of his daughter to a Mr. Bromfield conveyed 
 this field and other land to the trustees of the marriage settlement, and it 
 was argued that the defendant was unable to obey the order of the Court a.s 
 he no longer either owned or occupied the field, and it was further pre- 
 tended that Mr. Bromfield refused to allow his father-in-law to enter on 
 the field and remove the Ijones. The Court of Arches pmnoiuiced tlie
 
 ATTACHMENT. 433 
 
 defendant guilty of contumacy and contempt. The 1)one.s were replaced 
 within six days. 
 
 AdXam v. GoUhurst, L. R. 2 Adm. & Eccl. 30 ; 36 L. J. Ec. Ca. 14. 
 An advocate at Aberdeen snatched a petition from the Clerk of the Court ; 
 the Sheriff-substitute remonstrated and warned him he was committing a 
 contempt of court ; but the advocate put the petition in his pocket and 
 immediately left the Court. The Sheriff-substitute thereupon issued a 
 warrant ordering him to deliver up the document on pain of imprisonment. 
 As soon as the sheriff's officers entered the advocate's office, and demanded 
 the petition, the advocate threw it into the tire. The officer thereupon 
 immediately seized and imprisoned him. In an action brought by the 
 advocate for false imprisonment, held by the House of Lords, that the arrest 
 was perfectly lawful under the circumstances. 
 
 TVatt V. Ligertivood d: another, L. R. 2 Sc. App. 361. 
 
 If the contempt is committed in open Court and in 
 presence of the Judge, he may commit the offender 
 instanter, and without any prior notice. (Gascoyne, 
 C. J., thus committed the Prince of Wales in 1406. 
 See L. E. 2 Sc. App. 367, n.) And I presume this 
 power is not taken away by Jud. Act, Order XLIV., 
 r. 2. A written warrant is not essential to such a com- 
 mittal, though it is usual. (Fer Wightman, J., in 
 Cams Wilson's Case, 7 Q. B. 1017.) 
 
 But when the offender is not present, and the con- 
 tempt is committed by words spoken or published out 
 of Court, it is usual to grant first a rule nisi calling on 
 the offender to show cause why an attachment should 
 not be granted against him; although the Court still 
 may, and in flagrant cases will, on clear and satisfactory 
 evidence, grant an attachment in the first instance, and 
 issue its warrant, so that the offender shall answer for 
 his contempt in custody. (Anon. (1711), 1 Salk. 94; B. 
 V. Jones (1719), 1 Stra. 185.) The rule nisi is generally 
 granted on affidavit of the fact, though the Court may 
 proceed on its own knowledge, Avithout any suggestion. 
 (In re the High Sheriff of Surreij, 2 F. & F. 236 ; 
 SkipworWs and Castro'' s Cases, L. R. 9 Q. B. 230 ;
 
 434 SEDITIOUS WORDS. 
 
 12 Cox, C. C. 358.) If the offender fails to appear and 
 show cause, a warrant may issue for his apprehension 
 {Lechmere Charlton'' s Case^ 2 Myl. & Cr. 316); or he may 
 be fined in his absence [R. v. Clement^ 4 B. & Aid. 
 218). 
 
 When the offender was brought before the Court, it 
 was formerly the custom to adjourn the matter for four 
 days, in order that interrogatories might be exhibited 
 against him, which he was compelled to answer on oath. 
 But now it is usual to dispense with all interrogatories ; 
 the offender at once shows what cause he can, and 
 endeavours to piu'ge his contempt with the aid of ordi- 
 nary affidavits. If the Court is not satisfied, it may 
 commit him to prison for a time certain, or may impose 
 a fine, or may do both; and in every case the Com-t 
 may fiu-ther order the off'ender to pay the costs of the 
 proceedings. [Martlii's Case, 2 Russ. & Myl. 674.) 
 But in this case, as in every other, the costs are in the 
 discretion of the Court, and will not be granted where 
 the proceedings are clearly vexatious, and the party 
 instituting them is himself to blame. ( Vernon v. Vernon, 
 40 L. J. Ch. 118 ; 19 "W. R. 404 ; 23 L. T. 697.) The 
 costs should be asked for when the rule is argued [Ahud 
 V. Riches, 2 Ch. D. 528 ; 45 L. J. Ch. 649 ; 24 W. R. 
 637; 34 L. T. 713); and in cases where the contempt 
 is slight or unintentional, and the offender submits 
 himself to the Com-t, and has done all in his power 
 to clear his contempt, the Court often makes no other 
 order, except that defendant pay the costs of the motion 
 (See L. R. 7 Eq. 58, n.) 
 
 The commitment must be for a time certain, (ii. v., 
 James, 5 B. & Aid. 894 ; Green \. Elgie and another, 
 5 Q. B. 99.) But in all other respects the warrant may 
 be in general terms : no special grounds need be stated ; 
 nor need the facts which are the cause of the arrest be
 
 COMMITTAL. 435 
 
 specified: it is sufficient to state that the offender is 
 committed for contempt of Court. [Iloivard v. Gosset, 
 10 Q. B. 411 ; Ux parte Fernandez, 6 H. & IN". 717 ; 10 
 C. B. (:N'. S.) 3.) Two lines are sufficient (^. v. Patij, 2 
 Lord Eaym. 1108), and will justify the officer of the 
 Court in arresting the offender, and protect him from 
 any action of false imprisonment. It is presumed that 
 the Court was acting regularly and rightly, unless, 
 indeed, the contrary appears expressly on the face of the 
 writ. [R. Y. Evans and another^ 8 Dowl. 451.) And 
 the decision of the Judge committing cannot be reviewed 
 by any other Court. {Burdett v. Ahhott, 14 East, 1 ; 
 StocJcdale v. Hansard^ per Littledale, J., 9 A. & E. 169 ; 
 Cams Wilson^s Case, per Lord Denman, C. J., 7 Q. B. 
 1008.) If a fine is inflicted it is usual to add a sen- 
 tence of imprisonment till the fine be paid, in addition 
 to any other term of imprisonment that may have 
 been inflicted. (L. E. 9 Q. B. 228, 229, 240.) Where 
 the period for which the offender is to be detained is 
 expressed in the margin of the ^^it, or may be 
 gathered from it by necessary inference, the gaoler 
 should discharge the prisoner at the end of that period. 
 (iMooney. Rose, L. E. 4 Q. B. 486; 38 L. J. Q.B. 236.) 
 But if the warrant does not state the j^eriod for which 
 he is to be kept in custody, nor refer to the natiu-e of 
 the contempt committed, the gaoler should not release 
 ; him without an order of the Court. ( Greaves v . Keene, 
 4 Ex. D. 73 ; 27 W. E. 416 ; 40 L. T. 216 ; McCombe 
 V. Gray, 4 L. E. (Ir.) 432.) When the period assigned 
 ! comes to an end, the offender may not be detained in 
 I custody merely for the costs of the application to the 
 . Court to commit. {Jackson v. Mawhj, \ Ch. D. 86; 
 1 45 L. J. Ch. 53 ; 24 W. E. 92 ; Hudson v. Tooth, 2 
 I P. D. 125 ; 35 L. T. 820.) A fortiori where condemna- 
 tion in costs is the only punishment inflicted, the 
 
 ' F F 2
 
 436 SEDITIOUS WORDS. 
 
 Court has no power subsequently to commit to prison 
 for default in payment. (^Mickelthwaite v. Fletcher^ 27 
 W. K. 793.) 
 
 In Scotland the Court of Session has sometimes hy interdict 
 prevented the intended publication of any statements having a 
 tendency to interfere with the administration of justice. Thus, 
 where one of two prisoners charged with murder confessed 
 before his trial and by his confession seriously implicated the 
 other, the Court of Session prohibited the Edinburgh Evening 
 Courant from publishing the confession, lest it should prejudice 
 the fair trial of the other prisoner. (Bell's Notes, 1G5. See also 
 Emond's Case, Dec. 7th, 1829, Shaw, 229.) But in Fleming 
 V. Neivton, 1 H. L. C. 376, Lord Cottenham expresses a strong 
 opinion that such interdicts are an excess of the powers of the 
 Court of Session ; as by such intervention "jurisdiction over 
 libels is taken from the jury, and the right of unrestricted 
 publication is destroyed." 
 
 In England such a prohibition would be clearly an illegal 
 restriction of the liberty of the press. But the Court of Chancery 
 has sometimes asserted that an exception to this rule exists in 
 its own favour : and it has granted injunctions to restrain, not 
 indeed all publications which it deems contempts, but one 
 special class, viz., premature publications of its own proceedings, 
 whether in court or before an examiner. (Ex parte Jones, 13 
 Vesey, 237; Brook y. Evans, 29 L. J. Ch. 616; 6 Jur. N. S. 
 1025 ; 8 W. R. 688 ; Coleman v. West Hartlepool Rail. Co., 8 
 W. K 734 ; 2 L. T. 766.) And there is one instance in which 
 a court of gaol delivery exercised a similar power {R. v. Cleraent, 
 4 B. & Aid. 218), on the trial of Thistlewood and others for 
 treason in 1820. 
 
 It is said that such injunction will not generally be granted 
 unless applied for promptly, nor if the party complaining has 
 liimself invited, or commenced, public discussion of the matter 
 m a newspaper. (Datu v. Eley, L. R. 7 Eq. 49 ; 38 L. J. Ch. 
 113 ; Buenos Aijres Gas Co. v. Wilde, 29 W. R. 43; 42 L. T. 
 657.) But having regard to the recent decision in the Pruden- 
 tial Assurance Co. v. Knott, L. R. 10 Ch. 142; 44 L. J. Ch. 192; 
 23 W. R. 249 ; 31 L. T. 866, it may well be doubted whether
 
 SUPERIOR COURTS. 437 
 
 any such exception to the general rule exists either in Scotland 
 or in England. No doubt it is a C07iteinpt for any one to prema- 
 turely publish garbled ex parte accounts of interlocutory proceed- 
 ings : but surely subsequent punishment by fine and imprisonment 
 is a sufficient deterrent. There seems no need of such an unusual 
 remedy in this particular case, especially as the Courts of Equity 
 have no jury, whose minds might be influenced thereby. 
 
 The words "Superior Court" include the House of 
 Lords, the Judicial Committee of the Privy Council, the 
 Court of Appeal, the High Court of Justice, and any 
 Divisional Court thereof, and any Judge of any division 
 sitting in Court alone (Jud. Act, 1873, s. 39) and the 
 London Court of Bankruptcy (32 & 33 Vict. c. 71, ss. 
 19, 77 ; G. E. 178, 179 ; c. G2, s. 9 ; c. 83, ss. 4, 16). 
 Also any commissioner of oyer and terminer, assize, 
 gaol delivery, and Nisi Prius. (Ex parte Fernandez^ 
 
 6 H. & N. 717 ; 10 C. B. (N. S.) 3 ; 30 L. J. C. P. 321 ; 
 
 7 Jur. N. S. 529, 571 ; 9 W. E. 832 ; 4 L. T. 296, 324 ; 
 In re McAleece, Jr. E. 7 C. L. 146.) And the Superior 
 Courts of Law and Equity in Dublin, and the Court of 
 Session in Scotland. 
 
 But whether a judge sitting at chambers is "a superior 
 court," and has such power to commit for contempt, may well 
 be doubted. Wilmot, C.J., was clearly of opinion that a judge 
 at chambers had such a power, as appears by the very learned 
 judgment which he intended to deliver in R. v. Almon, 
 (Wilmot's Opin. & Judgments, 258) but it was not delivered in 
 fact, the case having dropped on the resignation of the then 
 Attorney-General, Sir Fletcher Norton. But there is no instance 
 of a judge at chambers himself inflicting fine or imprisonment. 
 He invariably reports any insult offered to him at chambers to 
 the full court, and leaves it to the Court to punish the offender. 
 And in R. v. Faulkner, 2 Mont. & Ayr. 338, Lord Abinger, C.B., 
 states most distinctly that a judge at chambers has no power to 
 commit for contempt. Section '39 of the Jud. Act, 1873, seems 
 in no way to enlarge the powers of a judge at chambers ; and
 
 438 SEDITIOUS WORDS. 
 
 its concluding sentence certainly implies that a judge at cham- 
 bers is not " a court," and in so far confirms Lord Abinger's 
 opinion. In the analogous case of the Court of Review, it has 
 been decided that a single judge has no power to commit for 
 contempt, except when sitting as the Court. {Ex 'parte Van 
 Sandau, 1 Phillips, 445 ; Van Sandau v. Turner, 6 Q. B. 773; 
 compare also. In re Ramsay, L. R. 3 P. C. 427 ; 7 Moo. P. C. C. 
 N. S. 263 ; Rainy v. Justices of Sierra Leone, 8 Moo. P. C. C. 47.) 
 Hence, in spite of the dictum of Folkard & Starkie, 4 ed., 631, 
 the better opinion appears to be that a judge at chambers can- 
 not safely commit summarily for a contempt of himself; although, 
 of course, he constantly issues at chambers Avrits of attachment 
 after notice to the party in default under Jud. Act, Order 
 XLIV. 
 
 And d fortiori no official or special referee (Jud. Act, Order 
 XXXVI. r. 33), and no arbitrator (3 & 4 Will. IV. c. 42, s. 40) 
 can commit for contempt. 
 
 The Colonial courts of record are also superior courts, 
 and possess the power of instantly committing for con- 
 tempt in all the above cases : and no appeal lies from 
 such a commitment to the Privy Council. ( Craivford'^s 
 case, 13 Q. B. 613 ; 18 L. J. Q. B. 225; 13 Jur. 955. 
 In re McDcrmott, L. E. 1 P. C. 260, 2 P. C. 341 ; 38 
 L. J. P. C. 1 ; 20 L. T. 47 ; Hughes v. Porral and 
 others, 4 Moore, P. C. C. 41.) But if it appear on the 
 face of the writ that the Court had exceeded its jurisdic- 
 tion {In re Ramsay, L. E. 3 P. C. 427 ; 7 Moore, P. C. 
 C. X. S. 263; Rainy v. The Justices of Sierra leone^ 
 8 Moore, P. C. C. 47) ; or if the offender had no oppor- 
 tunity given him of defending or exj)laining his conduct 
 (In re Pollard, L. E. 2 P. C. 106; 5 Moore, P. C. C. 
 ]Sr. S. Ill); or if the punishment awarded for the 
 contempt was not approjDriate to the offence [Re 
 Wallace, L. E. 1 P. C. 283 ; 36 L. J. P. C. 9 ; 15 
 W. E. 533; 14 L. T. 286; Re Doivnie cV Arrindcll, 
 3 Moore, P. C. C. 414) ; the order of commitment wiU
 
 COLONIAL COURTS. 439 
 
 be set aside, and the fine ordered to be remitted, by tlie 
 judicial committee of the Privy Council on appeal. But 
 if it sufficiently appears that the prisoner was committed 
 for contempt, and that the Court had power to commit 
 for such contempt, the offender cannot be heard to say 
 that such contempt was not in fact committed. " Every 
 Coui't in such a case has to form its own judgment." {Fer 
 Ld. Denman, C.J., in Carus Wilson^s case, 7 Q. B. 1015.) 
 When a competent court, acting clearly within its juiis- 
 diction, states certain matters of fact, affi^davits are not 
 admissible to contradict such findings. So if the colonial 
 court administers a different system of law fi'om ours, 
 affidavits cannot be received in England to show that 
 the colonial court was acting contrary to its o^vn law. 
 The English Com-ts must " give full credit to that 
 Coui't for knowing and administering theii' own law." 
 {Per Lord Denman, C.J., in Carus Wilson'' s case, 7 Q. B. 
 1014.) 
 
 (See also The Bank of Australasia v. Harding, 9 C. B. 
 661 ; 19 L. J. C. P. 345; Bank of Australasia v. Nias, 
 16 Q. B. 717; 20 L. J. Q. B. 284; De Cosse Brissae 
 V. Rathhone, 6 H. & N. 301 ; 30 L. J. Ex. 238; Munroe 
 V. Filkington, 31 L. J. Q. B. 89 ; 8 Jur. ^. S. 557 ; 6 
 L. T. 21 ; Sim27Son v. Fogo, 32 L. J. Ch. 249 ; 1 H. & 
 M. 195 ; 1 J. & H. 18 ; 9 Jur. N. S. 403 ; IKE. 422 ; 
 11 W. E. 418; 8 L. T. 61 ; Godard v. Gray, L. E. 
 6 Q. B. 139 ; 40 L. J. Q. B. 62 ; 19 W. E. 348 ; 24 L, 
 T. 89.)
 
 440 SEDITIOUS WORDS. 
 
 (b) Inferior Courts. 
 
 The Judge of an inferior court is in no better position 
 than any other public character, so far as words wiitten 
 and published are concerned. It is a misdemeanour to 
 write and publish concerning him in the execution of 
 his office any words which would be libellous and action- 
 able per se if wi'itten and published of any other public 
 officer. 
 
 It is not indictable to sjjcajc disrespectful and abusive 
 words of the judge of an inferior coiu't behind his back, 
 or even to his face, provided he be out of com-t. 
 
 But it is indictable to speak aloud in open coui't when 
 the judge is present in the discharge of his duty, words 
 reflecting upon him in his official capacity. 
 
 Illustrations . 
 It is indictable — 
 to give the lie to the steward of a manor holding a court leet, 
 
 Earl of Lincoln v. Fisher, Cro. Eliz. 581 ; Ow. 113; Moore, 470 ; 
 to put on your hat in the presence of the lord of a coiut leet and refuse 
 to take it off, saying, " I care not what you can do," 
 
 Bathurst v. Coxe, 1 Keb. 451, 465 ; Sir T. Eaym. 68; 
 to rise up in court and say to the justices in session, "Though I cannot 
 have justice here, I will have it elsewhere," 
 
 R. V. Mayo, 1 Keb. 508 ; 1 Sid. 144 (although Twisden, J., 
 mercifully endeavoured to construe the words to mean merely, 
 " 1 propose to appeal from your decision ") ; 
 to say to a justice of the peace in the execution of his office, " You are 
 a rogue and a liar," 
 
 R. V. Revel, 1 Str. 420 ; 
 to call the mayor of Yarmouth in his court in the hearing of the .-iiitois, 
 a puppy and a fool, 
 
 Ex parte The Mayor of Yarmovfh, 1 Cox, C. C. 122. 
 
 But it is not indictable — 
 
 to call a justice of the peace, " a logger-headed, a slouch-headed, bursen- 
 bellied hound," 
 
 R. V. Farr, 1 Keb. G29 ;
 
 INFERIOR COURTS. 441 
 
 Nor to Bay that a justice is a fool, or an ass, or a coxcoml), or a block- 
 head, or a bufllehead. Per Holt, C.J., in 
 
 R. V. JFrightson, 2 Salk. 698 ; 11 I\Ioa. 166 ; 2 Roll. Rep. 78 ; 
 4 Inst. 181 ; 
 Nor to say of a burgess of Hull, that " Whenever he comes to put on his 
 gown, Satan enters into him," 
 
 E. V. Baker, 1 Mod. 35 ; 
 Nor to say of a justice of the peace in his absence that he is a scoundrel 
 and a liar. Per Lord Ellenborough, 
 E. V. TFeltje, 2 Camp. 142 ; 
 Nor to accuse a justice of partiality or corruption, unless the words were 
 uttered at a time when the magistrate was in the actual execution of his 
 office, 
 
 Ex parte The Dule of Marlborough, 5 Q. B. 955 ; 1 Dav. & Mer. 
 
 720; 
 
 Nor to tell a borough magistrate, out of court but to his face, that he 
 
 is a liar, and unfit to be a magistrate, and that he will hear the same every 
 
 time he came into town ; unless indeed the words can be construed as 
 
 tending to provoke a breach of the peace. 
 
 Eximrte Chairman, 4 A. & E. 773. 
 
 See also Anon. (1650), Style, 251. 
 
 Simmons v. Sweete, Cro. Eliz. 78. 
 
 Bag(j's Case, 11 Rep. 93, 95 ; 1 Roll. Rep. 79, 173, 224. 
 
 E. V. Burford, 1 Ventris, 16. 
 
 E. V. Lea/e, Andrews, 226. 
 
 E. V. Penny, 1 Ld. Raymond, 153. 
 
 E. V. Langley, 2 Ld. Raymond, 1029; 2 Salk. 697 ; 6 Mod. 125 ; 
 
 Holt, 654. 
 E. V. Eogers, 2 Ld. Raymond, 777 ; 7 Mod. 28. 
 R. V. Nun, 10 Mod. 186. 
 E. V. Granfield, 12 Mod. 98. 
 E. V. Pococh, 2 Str. 1157. 
 E. V. Burn, 7 A. & E. 190. 
 
 These cases^ oveniile E. v. Darby, 3 Mod. ^139 ; Comb. 65; 
 Carth. 14.' 
 
 Thus the same act which would be indictable if 
 committed with respect to a superior court may not be 
 indictable if only an inferior court is concerned. And 
 the power of an inferior court to deal itself with such 
 contempts is again still further restricted. 
 
 For as we have soon the superior courts could commit 
 to prison in many cases where the offence is not indict- 
 able. An inferior court on the other liand cannot commit
 
 442 SEDITIOUS WORDS. 
 
 in every case wliich is indictable, and certainly in none 
 wliicli is not. {R. v. Revel, 1 Str. 420.) 
 
 An inferior court of record can only commit for con- 
 tempts committ<.'d in open coui't, in facie ciirice. (R. v. 
 Lefrot/, L. E. 8 Q. B. 134; 42 L. J. Q. B. 121; 21 
 W. E. 332 ; 28 L. T. 132.) The judge or coroner must 
 at the moment be actually discharging his duty ; and the 
 words employed or act done must either be pointedly and 
 personally disrespectful to the judge or coroner himself ; 
 or else amount to a serious obstruction of the course of 
 justice. 
 
 Illustrations. 
 
 If a coroner for any reason (and the sufficiency of such reason Ls a matter 
 entirely for tlie coroner in the exercise of his discretion) order a particuh^r 
 person to quit the room where he is about to hold an inquest, and such 
 person wholly refuse to go, and defiantly continues in the room to the 
 hindrance of the inquest, the coroner may lawfully order him to be 
 expelled. 
 
 Garnett v. Ferrand, 6 B. & C. 611. 
 
 The solicitor for a plaintiff in a county court wrote a letter to the local 
 newspaper, accusing the judge of the county court of "arbitrary and 
 tyrannical abuse of jiower," and calling one statement he had made "a 
 monstrosity " and "an untruth." Held that the judge had no power to 
 proceed against the solicitor for contempt of court ; although the matter was 
 still pending. 
 
 B. V. Lefroy, Ex parte Jolliffe, L. R. 8 Q. B. 134 ; 42 L. J. Q. B. 
 121 ; 21 W. R. 332 ; 28 L. T. 132. 
 
 Before actually committing, the judge or coroner 
 should always give the offender an opportunity of ex- 
 plaining his conduct and showing cause why he should 
 not be committed. 
 
 If the judge or coroner does commit, he must issue 
 a warrant in writing, and duly signed; he may not 
 commit by word of mouth, as a judge of a superior 
 court may sometimes do. [JSlayheiv v. Locke, 7 Taunt. 
 63.) Such warrant should state clearly the cause for 
 which the prisoner was committed and all facts necessary
 
 WARRANT OF COMMITTAL. 443 
 
 to give jurisdiction to commit. Affidavits are inadmis- 
 sible to contradict any statement of fact contained in the 
 warrant {In re John Rea (2), 4 L. E. Ir. 345 ; 14 Cox, 
 C. C. 256) ; thongli tliey are admissible to show want of 
 jurisdiction. [R. v. Bolton, 1 Q. B. 73.) But where it 
 sufficiently appears that the prisoner was committed for 
 contempt, and the coiu't had power on the facts as stated 
 by them to commit for such contempt, their decision 
 cannot be reviewed by any coui't. ( Carus Wilson^ case, 
 7 Q. B. 984, 1014 ; Garnett v. Ferrand, 6 B. & Cr. 625 ; 
 R, V. Bolton, 1 Q. B. 73.) They alone can judge of the 
 insult offered to them. Such a warrant will justify any 
 officer of the inferior court in arresting the offender, and 
 protect him from any action of assault or false impri- 
 sonment. (Levi/ V. 3Ioi/lan, 19 L. J. C. P. 308 ; 1 L. M. 
 & P. 307.) 
 
 Illustrations. 
 
 Charles Carus Wilson, an English attorney, went to reside in Jersey, and 
 there brought an action against Peter Le Sieur in the Royal Court of Jersey, 
 which was composed of a Bailiff and two Jurats, or Lieutenant-bailifi's. On 
 September 23rd, 1844, the court was about to deliver an interlocutory 
 judgment in the cause against Wilson, when he interposed and in an un- 
 becoming manner protested against the competency of the court, his own 
 counsel being present and silent. Wilson had previously been repeatedly 
 warned that liis conduct was disrespectful. The court thereupon, after 
 giving Wilson full opportunity to explain or apologise for his conduct, 
 sentenced him to pay a fine of £10 and apologise to the Court, and in 
 default to be imprisoned till obedience. This sentence was duly recorded 
 in the Judgment Book, and read aloud to Wilson and his counsel then and 
 there ; but Wilson wholly refused either to pay or to apologise, and was 
 accordingly at once arrested by the Viscount of the island, whose duty it 
 was to carry into effect the sentences of the Eoyal Court, and lodged in Her 
 Majesty's gaol. A writ of habeas corpus was obtained on the ground that 
 there was no written warrant for his arrest or detainer. The return to the 
 writ set out all the facts and also stated that by the law and practice of the 
 Island of Jersey no written warrant was necessary or usual, but the sentence 
 duly recorded was of itself a sufficient authority justifying and compelling 
 the A'iscount to arrest, and the gaoh-r to detain, the offender. Held l)y 
 Lord Denman, C.J., Patteson, Williams and Wightman, JJ., that affidavits 
 on behalf of Wilson to show that such was not the law or practice of Jersey, 
 and that in other respects the lloyal Court had actetl inconsistently with
 
 444 SEDITIOUS WORDS. 
 
 its own law, could not be received : that no written warrant was necessary ; 
 that the contempt was a matter which the Koyal Court had to decide for 
 itself ; that its decision, being the decision of a competent court, could 
 not be reviewed by the Queen's Bench ; and Wilson was accordingly, on 
 April 22nd, 1845, remanded to Her Majesty's Prison in Jersey. 
 Cams Wilson's Case, 7 Q. B. 984. 
 
 Inferior Courts not of record have no power to fine 
 or commit for contempt. But they have another remedy 
 which is now peculiar to inferior courts, although it was 
 formerly employed also by the superior courts in cases 
 not calling for severer punishment. The offender may 
 be required to find sureties for kis good hehavmir : — 
 (i.) If he use any disrespectful or unmannerly expres- 
 sions in the face of the court. (1 Lev. 107 ; 1 
 Keb. 558.) 
 (ii.) If, out of court, he uses words disparaging the 
 
 judge or magistrate in relation to his office, 
 (iii.) If, out of court, he obstruct or insult an officer of 
 the court in the execution of his duty. (Hawk. 
 P. C. c. 61, ss. 2, 3.) 
 (iv.) And generally, if he use any words which dii^ectly 
 
 tend to a breach of the peace. 
 But not for contemptuous and uncivil words spoken of 
 the judge in his private capacity. 
 
 Such binding over should be done as soon as possible 
 after the contempt is committed ; and in the ease of 
 petty sessions, it should be done, not by the justice 
 specially attacked, but one of his brethren. [R. v. 
 Lee, 12 Mod. 514.) And in default of sureties being 
 provided, the justices may commit either to the 
 common gaol or to the House of Correction (6 Geo. I., 
 c. 19, s. 2); but it should appear clearly upon the face 
 of their warrant that the committal is for want of sure- 
 ties, and not merely for contempt. [Demies case, Cro. 
 Eliz. 689.) And the committal should be for a time
 
 SURETIES FOR GOOD BEHAVIOUR. 445 
 
 certain, not "until he shall find such sureties," else a 
 poor and friendless man might be imprisoned for life. 
 {Prickett v. Gratrex, 8 Q. B. 1020.) 
 
 Illustrations. 
 
 Laiigley said to the Mayor of Salisbury whilst in the execution of his 
 office, " Mr. Mayor, I do not care for you ; you are a rogue and a rascal." 
 Held that the words were not indictable ; but that the Mayor miglit have 
 bound him over then and there to be of good behaviour, and ought to have 
 done so instantly. 
 
 R. V. Langley, 2 Ld. Raymond, 1029 ; 6 Mod. 125 ; 2 Salk. 
 697 ; Holt, 654. 
 Rogers spoke unmannerly words to Sir Robert JeftVyes, an Alderman of 
 the City of London, while he was holding a wardmote in a church. Holt, 
 C. J., said, " No information or indictment will lie for these words. For 
 the common law has provided a proper method for punishment of scandalous 
 words, viz., binding to the good behaviour; such words being a breach of 
 the peace." 
 
 B. V. Rogers, 2 Ld. Raym. 777 ; 7 Mod. 28. 
 
 As to some inferior courts special statutes have been 
 passed. Thus, as to County Courts, by 9 & 10 Vict. c. 95, 
 s. 113 (County Coui'ts Act, 1846), it is enacted, that 
 " if any person shall wilfully insult the judge or any 
 juror, or any bailiff, clerk or officer of the said court for 
 the time being, during his sitting or attendance in court, 
 or in going to or retui'ning from the court, or shall wil- 
 fully interrupt the proceedings of the coui't or otherwise 
 misbehave in court, it shall be lawful for any bailiff or 
 officer of the court, with or without the assistance of any 
 other person, by the order of the judge, to take such 
 offender into custody, and detain him until the rising of 
 the court ; and the judge shall be empowered, if he shall 
 think fit, by a warrant under his hand, and sealed with 
 the seal of the court, to commit any such offender to any 
 prison to which he has power to commit oft'enders under 
 this Act (see 12 & 13 Vict. c. 101, s. 2), for any time 
 not exceeding seven days, or to impose upon any such
 
 446 SEDITIOUS WORDS. 
 
 offender a fine not exceeding £5 for every sucli offence ; 
 and, in default of payment thereof, to commit the 
 offender to any such prison as aforesaid for any time not 
 exceeding seven days, unless the said fine be sooner 
 paid." (See Levy v. Moylan, 19 L. J. C. P. 308 ; 1 L. 
 M. & P. 307.) 
 
 And it has been held that a County Coiu't judge has 
 no power to commit in any case not within this section. 
 {R. V. Lefrojj, ex parte JolUffe, L. E. 8 Q. B. 134 ; 42 
 L. J. Q. 13. 121 ; 21 W. E. 332 ; 28 L. T. 132.) Except, 
 of course, for breach of injunction and in other cases 
 coming Avithin rules 30 & 31 of County Coiu't Eules, 
 1875, Order XIX. {Martin v. Bannister, 4 Q. B. D. 
 212, 491 ; 48 L. J. Ex. 300 ; 27 W. E. 431.) 
 
 By the County Voters Eegistration Act, 1865 (28 
 Vict. c. 36), s. 16, it is declared to be lawful for any 
 Eevising Barrister, whether revising the Lists of a 
 County, City, or Borough, to order any person to be 
 removed from his Court who shall interrupt the business 
 of the Coui't, or refuse to obey his lawful orders in 
 respect of the same ; and it shall be the duty of the 
 Chief Constable, Commissioner, or Chief Officer of 
 Police of the County, City, Borough, or Place in which 
 the Court is held, to take care that an officer of police 
 do attend that Com-t, diu'ing its sitting, for the purpose 
 of keeping order therein, and to carry into effect any 
 order of the Eevising Barrister as aforesaid. 
 
 By the Petty Sessions (Ireland) Act, 1851 (14 & 15 
 Vict. c. 93,) s. 9, it is enacted that if any person shall 
 wilfully insult any Justice or Justices. . . . sitting in 
 any. . . . Coiu*t or j)lace, or shall commit any contempt 
 of any such Court, it shall be lawful for such Justice 
 or Justices by any verbal order, either to direct such 
 person to be removed from such Court or place, or to 
 be taken into custody, and at any time before the
 
 STATUTORY POWERS. 447 
 
 rising of such Court, by warrant, to commit such person 
 to gaol for any period not exceeding seven days, or 
 to fine such person in any sum not exceeding 40^?. 
 
 Illustrations. 
 
 In 1874 Thomas Willis claimed to vote as a freeliolder ; but the revising 
 hamster on the meagre evidence before him held that the property in 
 respect of which he claimed was copyhold, and disallowed the vote. His 
 cousin 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 c'aimed as a coj)yholder. 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. Hdd that such 
 expulsion was wrongful, as William's conduct in 1874, though possibly 
 deserving of moral reprobation, was certainly no "interruption" of the pro- 
 ceedings of the court then being held in 1875. 
 
 Willis V. Maclachlm, 1 Ex. D. 376 ; 45 L. J. Ex. 689 ; 35 L. T. 
 218. 
 
 To insist, in spite of repeated remonstrance, upon interrupting and in- 
 sulting a court of petty sessions, by shouting at the bench in the most 
 violent and unseemly manner, so that not even one of the justices was able 
 to speak a word, is a contempt for which the court may commit to prison 
 even a solicitor practising before them. 
 
 In re John Bea (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 
 evidence against him, saying that she would not go to Maidstone, and no- 
 body should make her. After fully explaining the matter and expending 
 nearly an hour in the attempt to persuade her to go, the committing ma-^'is- 
 trate 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 loife 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 Eecord, the Secondary's Court, the Tolzey Coui't of 
 Bristol, the Salf ord Court of Eecord, the Court of Passage, 
 Liverpool, all Sheriff's Courts, all County Courts, all 
 Courts of Quarter and Petty Sessions, all Coroners, all
 
 448 SEDITIOUS WORDS. 
 
 Eevising Barristers, and, in short, all temporal Coui'ts 
 not enumerated as Superior Courts, ante^ p. 437. 
 
 The ecclesiastical Courts have no power to commit for con- 
 tempt at all. All that such Court can do is to signify such 
 contempt to the Lord Chancellor, who thereupon, under 2 & 3 
 Will. IV. c. 93, issues a writ de contiimace capiendo for taking 
 the offender into custody. (Adlain v. Colthurst, 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 member of the House of Commons (s. 2). 
 Note that both Mr. Long Wellesley and Mr. Lechmere Charlton 
 (ante, pp. 430, 431), were members of Parliament, and yet both 
 ■were committed to the Fleet for contempt of the Court of 
 Chancery. (2 Buss. & Mylne, 639 ; 2 Mylne & Cr. 316.) And 
 see the remarks of Cockburn, C.J., in Onslow's and Whalley's 
 cases, L. B. 9 Q. B. 228, 9 ; 12 Cox, C. C. 369.
 
 PART II. 
 
 PRACTICE, PROCEDURE, AND EVIDENCE. 
 
 CHAPTER XVII. 
 
 PRACTICE AND EVIDENCE IN CIVIL CASES. 
 
 An action of libel or slander should not be lightly under- 
 taken ; it is a dangerous expei'iment ; many a jjlaintiff, even 
 though nominally successfab 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. Thu.s, if the libel be 
 on " a certain vicar," no individual vicar should sue, unless by 
 other passages in the libel he is unmistakably identified ; other- 
 wise 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 
 unle.ss his relations and acquaintances generally have arrived at 
 the same conclusion. 
 
 Next, is the charge, or any part of it, true ? If so, the 
 I plaintiff, by bringing an action takes the surest method of adver- 
 
 . o G
 
 450 PRACTICE AND EVIDENCE. 
 
 tising bis own disgrace. When once the action is brought and a 
 justification 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 contemyji" 
 
 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, 
 it will be better for him not to sue. He will have to be cross- 
 examined in open court, and every admission wrung from him 
 will be published in all the county jDapers ; 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 will re- 
 member with pleasure to their dying day what a sorry figure he 
 cut in the box. 
 
 The plaintiff should also consider whether he has not brought 
 the libel or slander on himself, whether his own conduct was 
 not such as naturally to lead people to make unkind remarks. 
 See Davis v. Duncan, L. R 9 C. P. 396 ; 43 L. J. C. P. 18.3 ; 
 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. 228) ; and in every case the defen- 
 dant may show in mitigation of damages the provocation given 
 by the plaintiff {ante, pp. 306, 307). A man who has com- 
 menced a newspaper controversy comes with a very bad grace 
 to the law courts for assistance against too powerful an adver- 
 sary. 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 1 Is the matter sufficiently serious ? 
 A man does not advance either his dignity or his reputation by 
 showing himself too sensitive to calumny. His friends will 
 think that he is eager for litigation, because he knows that his 
 character cannot stand the least wear and tear. This remark 
 applies chiefly 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 liy few ; it will soon be forgotten : if yo
 
 COXSIDERATIONS HE FORE WRIT. 451 
 
 bring an action, it will be disseminated throughout the country, 
 and recorded in a permanent shape. If then you are in doubt 
 whether to bring an action of slander or not, my advice would 
 be in the negative, unless the charge made be really serious. 
 A libel in a newspaper is very different. 
 
 And even 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," and indulging in no tii qvoque. 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 the plaintiff than any amount of damages. If, 
 however, no apology comes, but another letter worse than the 
 first, the plaintiff should lie by awhile till his adversary has 
 thoroughly committed himself by some third letter palpably 
 outrageous. Now the plaintiff can show a systematic course of 
 jDersistent libelling, which is cogent evidence of malice, entitling 
 him 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 is j)robably a much exaggerated 
 version of what defendant actually said. The plaintiff is 
 usually the last person who hears the charge against him ; and 
 words not actionable 'per se are frequently converted into 
 actionable words in the intermediate process ; for we know 
 that :— 
 
 " Fama, mahim quo iion aliiid A'elocius uHum, 
 Mobilitate viget, viresque acquirit eundo, 
 ■X- * * * * * * 
 
 Tain licti pravi(|ue tenax, quam nuntia veri." 
 
 ViRG. iEn. IV. 174, 188. 
 
 The 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 
 tliat be did say so, but has since discovered he was mistaken, 
 got him to write you a letter acknowledging his error, to show 
 
 u G 2
 
 452 PRACTICE AND EVIDENCE. 
 
 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 
 pubUcation — an admission by the defendant. Lord Denman 
 siys, in Griffiths v. LpAms, 7 Q. B. 61 ; 14 L. J. Q. B. 199 ; 9 
 Jur. 370, " it is never wise to bring an action for slander unless 
 some such cpurse has been taken." See his remarks, ante, 
 p. 231. 
 
 As soon as it is clear what is the precise charge made by the 
 defendant, the next question will be : — Are the words action- 
 able ? 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. 
 
 Pavtles. 
 
 Next, it must be determined who is the right plaintiff, and 
 who the proper defendant ; as to which see c. XII. ante, pp. 
 344—372. In cases of slander where special damage is es- 
 sential to the action, be careful to sue only that person whose 
 actual utterance of the slander 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 of written 
 libels, it is often wise to sue the person who actually wrote the 
 libel as well as his master or employer who directed or sanc- 
 tioned what he wrote. For thus, should the plaintiff fail to 
 prove agency at the trial, he will yet be entitled to judgment 
 against the clerk or servant. In a recent case {Pollard v. Green, 
 Bristol Summer Assizes, 1880) the libel was contained in a 
 business letter written by the wife of a tradesman : the plaintiff 
 sued the husband alone, and failed to prove that the libellous 
 portion of the letter was written with the husband's knowledge 
 or consent. The plaintiff's counsel thereupon applied to have 
 the wife added as co-defendant ; but Grove, J., ruled that it 
 was too late to do so. Had the Avife's name been added in the 
 first instance, the plaintiff must have succeeded, whether the 
 husband knew what his wife was writing or not. 
 
 Where a libel has appeared in a newspaper, the person 
 defamed can sue the editor, printer, publisher, or author, or
 
 PARTIES, LETTER BE TORE ACTION, ETC. 453 
 
 some, or all of them. Ho would naturally prefer to sue the 
 author, and should write to the editor demanding the writer's 
 name and address. This information the editor will, as a rule, 
 refuse to give. It is generally regarded as a point of honour 
 with an editor not to disclose the name of any of his regular 
 contributors. In Harle v. Gatherall 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 re- 
 fusing." The plaintiff must in such a case be content to sue 
 the proprietor of the paper. 
 
 Letter before Action. 
 
 In all cases, before actually issuing a writ, tlie plaintiff's 
 solicitor should write to the defendant, demanding an apology 
 and threatening proceedings. If the charge was made publicly, 
 a public apology should be demanded. If only a few heard it, 
 the plaintiff should be content with a letter of apology, fully 
 retracting the charge ; this could be shown to everyone 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 anyone acting 
 bond fide in the execution of any statutory duty (5 & 6 Vict. 
 c. 97, s. 4). In such cases, a letter asking for the name of the 
 writer's informant, and tlireatening j^roceedings if the name be 
 not disclosed, will not be a sufficient notice within the statute, 
 {Ferris v. Smith, 10 A. & E. 188.) 
 
 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 subsequently be remitted to the County Court,
 
 454 PRACTICE AND EVIDENCE. 
 
 sec "post, pp. 4G8, oG5). Where the jjarticulars before a County 
 Court judge disclose 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. Warhurton, 7 L. T. 722.) The Courts of Equity 
 before the Judicature Act had no cognizance over libels or 
 slander, whether public or private, except as contempt of their 
 own Courts. {Roach v. Read and another, 2 Atk. 469 ; 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. 005 ; 28 W. R. 983 ; 43 L. T. 91.) But it is 
 obviously inexpedient to commence such an action there ; for 
 libel or no libel is peculiarly a question for a jury, and the 
 judges of the Chancery Division never have a jury. {Clark v. 
 Cookson, 2 Ch. D. 740 ; 45 L. J. Ch. 752 ; 24 W. R. 535 ; 34 
 L. T. 640 ; Murdoch v. Warner, 4 Ch. D. 750 ; 46 L. J. Ch. 
 121 ; 25 W. K 207; 35 L. T. 748.) In Thomas v. Williams, 
 the defendant never expressed a wish for a jury till the whole 
 of the evidence on both sides had been taken ; had he applied 
 sooner, Fry, J., Avould have changed the mode of trial. (See 14 
 Ch. D. 871.) The only object in going to the Chancery Division 
 would be to obtain an injunction ; and it is clear now that an 
 interim injunction cannot be obtained on an interlocutory appli- 
 cation.- {Prudenticd Assurance Co. v. Knott, L. R. 10 Ch. 142 ; 
 44 L. J. Ch. 192 ; 23 W. R. 249 ; 31 L. T. 866.) And at the 
 full hearing of the ca.se, after the trial, an injunction can be 
 obtained as readily in the Common Law Divisions as in the 
 Chancery Division. {Saxhy v Easterbrooh, 3 C. P. D. 339 ; 27 
 W. R. 188.) For every reason, therefore, it is best to issue the 
 writ in one of the Common Law Divisions of the High Court 
 of Justice. 
 
 District Registry. 
 
 The plaintiff, wherever resident, may, if he pleases, issue a 
 writ out of the registry of any district (Order V. r. 1) ; but it is 
 absolutely useless to do so, unless the plaintiff's solicitor has his 
 office within the district. (See Order IV. r. 3a ; R. S. C. Feb. 
 1870, r. 3.) The districts of the district registries are defined 
 by an Order in Council issued under s. 60 of the Judicature 
 Act, 1878, on August 12th, 1875 : they are as a rule co-exten-
 
 DISTRICT REGISTRY. 455 
 
 sivc with the County Court district of the same place. Again, 
 there is very little advantage in issuing a writ out of a District 
 Registry, unless all the defendants reside or carry on business 
 within the district ; as if one of them neither resides nor carries 
 on business within the district, he is almost sure to appear in 
 London. If, however, all parties and their respective solicitors 
 reside or carry on business within the district, then, if the 
 action be simple and straightforward, it may be as well to 
 issue the writ out of the District Registry. Instructions to 
 draw pleadings may in that case be sent direct to counsel in 
 town by post ; and thus some few agency expenses will be 
 saved. But if there are likely to be many applications at 
 chambers, e.g., over the Interrogatories and their Answers, or 
 as to a plea of Justification, then it would be much better to 
 issue the writ in London in the usual way. Even where the 
 defendant resides and carries on business within the district, 
 he may after appearance there remove the action to London as 
 of right at any time before delivering his statement of defence, 
 by merely giving a notice under Order XXXV. r. 12. After 
 the expiration of the time for delivering defence an order is 
 requisite. Order XXXV. r. 13. Of course issuing the writ out 
 of the Central Office in London in no way prevents the trial 
 taking place at the assizes. 
 
 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 his special 
 damage has fully accrued. (See Ingram v. Laiuson, 6 Bing. 
 N. C. 212; 8 Scott. 471 ; 9 C. & P. 826 ; 4 Jur. 151 ; Goslin 
 V. Corry, 7 M. & Gr. 842 ; 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 
 pel- se must be ])rought "within ttco years next after the words 
 spoken, and not after" (21 Jac. I. c. 10, s. 8), and that an 
 action for libel or of scandalum magnatum must be brought 
 within six years from the date of publication. (Lord Saye d- 
 Seal V. Stephens, cited Cro. Car. 585 ; Litt. 842.) In cases of 
 slander of title, and indeed whenever the words are actionable
 
 456 PRACTICE AND EVIDENCE. 
 
 onl}^ by reason of special damage, the plaintiff has six years 
 within which to sue ; and the time does not begin to I'un till 
 the damage has actually been sustained. (Saunders v. Echvards, 
 1 Sid. 95). This is in accordance with the principle of Bonomi 
 V. Backhouse, 9 H. L. C. 503; E. B. .1- E. 662; 34 L. J. 
 Q. B. 181. Lord Campbell was evidently under a misapprehen - 
 sion as to the effect of stat. 21 Jac. I. c. 16, in his remarks in 
 9 H. L. C. p. 513. 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. 1. c. 19, s. 7; 4 S: 5 Anne, c. 3 (ah c. 16), s. 19 ; 3 .1- 
 4 Will. IV. c. 42, s. 7 ; 19 & 20 Vict. c. 97, s. 12). But if 
 once such disability be removed and the time begin to run, 
 nothing afterwards can stop it. 
 
 But the publication relied on to oust the statute need not be 
 the original or substantial publication. Thus if any agent of 
 the plaintiff can induce the defendant to sell him an old copy 
 of the libel, published many years ago, such second publication, 
 although contrived by the plaintiff for the very purpose, will be 
 sufficient to disprove the plea of the Statute of Limitations. 
 And that plea being once ousted the jury will not be confined 
 to that single publication within the six years, but may give 
 damages generally for the original dissemination of the libel. 
 (Dul-e ofBrunsivich v. Harmer, 14 Q. B. 185 ; 19 L. J. Q. B. 
 20; ]4'jur. 110; 3 C. & K. 10.) 
 
 Former Proceedings. 
 
 That a previous action has already been brought and damages 
 recovered against the same defendant for the same words is a 
 bar to any subsecpient action, even though fresh damage has 
 since arisen therefrom. For the jury in the former action must 
 be taken to have assessed the damages once for all ; and the pro- 
 bability or possibility that this subsequent damage would follow 
 should have been submitted to their consideration then. And 
 this is so whether the words are in themselves actionable or not, 
 ante, p. 317. So if the prior action was unsuccessful, this will 
 also be a bar to the action ; unless indeed the plaintiff was only 
 nonsuited on some technical ground and the judge in giving
 
 FORMER PROCEEDINGS. 457 
 
 judgment of nonsuit expressly declared that it was a common 
 law nonsuit, and that the plaintiff might bring a second action. 
 
 But it must Le clear that the cause of action is the same in 
 both cases. Thus where the declaration in an action of slander 
 alleged that the defendant spoke of the plaintiff, in the ivay of 
 his trade, the words, "He cheated me;" "He is a thief and 
 robbed me of ^£100 ;" and contained an averment of special 
 damage, the defendant pleaded a former judgment recovered 
 for the same grievances ; but the record of the previous action 
 showed the slanderous words to have been, "That thief is a 
 villain, a scoundrel and a rascal, and I can prove him a thief at 
 any moment ;" and it neither alleged that the words Avere 
 spoken of the plaintiff in the way of his trade, nor contained an 
 averment of special damage. This was held to be no bar to 
 the action. " I cannot think," said Crompton, J., "that the 
 cause of action in that record which contains words charging 
 the plaintiff with felony, is the same cause of action as that in 
 the present declaration, which imputes a charge against the 
 plaintiff as a trader. (Wadsworth v. Bentley, 23 L. J. Q. B. 3 ; 
 17 Jur. 1077 ; 2 C. L. R. 127 ; 1 B. C. Cases (L. & M.) 203.) 
 
 So, too, a previous recovery against another person may be a 
 bar to the present action, if the former defendant was jointly 
 concerned with the present defendant in the very publication 
 now sued on. Thus if A. & B. be in partnership either as 
 printers or publishers of- a newspaper, a previous judgment 
 recovered against A. would be a bar to any action against B. 
 for the same libel, even though the judgment obtained in the 
 prior action be not satisfied. (Broivn v. Wootton, Cro. Jac. 78 ; 
 Yelv. 67 ; Moo. 762 ; King v. Hoare, 13 M. & W. 494, 504 ; 
 Brinsmead v. Harrison, L. E-. 7 C. P. 547; 41 L. J. C. P. 
 190 ; 20 W. R. 784 ; 27 L. T. 99, followed in Ex parte Drake, 
 In re Ware, 5 Ch. D. 866; 25 W. R. 641 ; 36 L. T. 677.) 
 But this is only because they ought to have been sued jointly, 
 and could have been so sued before the Judicature Act, Where 
 two are severally liable, judgment against one is no bar to an 
 action against the other. Thus, a previous judgment against 
 the proprietor of a newspaper, even though satisfied, is no bar 
 to an action for the same liliel against the author. (Frescoe v. 
 il/a?/, 2 F. & F. 123.) A fortiori that heavy damages had been 
 recovered against one newspaper is no bar to an action against
 
 458 PRACTICE AND EVIDENCE. 
 
 another newspaper wliich has piibUshed the same libeL Such 
 previous recovery should not even be mentioned to the jury in 
 mitigation of damages {Creevy v. Carr, 7 C. & P. 64) ; nor 
 should it be stated that such other actions are pending. (Har- 
 rison V. Pearce, 1 F. & F. 567 ; 32 L. T. (Old. S.), 298.) In 
 America it seems no judgment against another, whether jointly 
 or severally liable, will be a bar, unless it be satisfied. {Love- 
 joy V. Murray, 3 Wallace (Supr. Ct.) 1 ; Thomas v. Rumsay, 
 6 Johns (N. Y.) 26 ; Broivn v. Hlrley, 5 Upper Canada, Q. B. 
 Rep. (Old S.), 734.) 
 
 Joinder of Causes of Action. 
 
 The Judicature Act gives a plaintiff very wide powers of 
 joining several causes of action in one writ ; but as a rule in 
 cases of libel and slander the plaintiff should not avail himself 
 of these provisions. Defamation is a matter sui generis, and it 
 would be imprudent to complicate the issue by joining irrele- 
 vant claims. Of course any number of libels or slanders pub- 
 lished by the same defendant may well ])e sued on in the same 
 action, unless they be wholly disconnected. So, too, a claim for 
 malicious prosecution, or wrongful dismissal, or even assault 
 may be joined, if it arises out of the same circumstances, and 
 will be substantiated by the same witnesses, as the claim for 
 libel or slander. In a recent case, where the plaintiff alleged 
 that a foreign merchant and his Manchester agent had con- 
 spired to libel the plaintiff in the way of his trade, the Court 
 allowed this joint cause of action to be joined with claims 
 against each defendant severally for the same libels or others of 
 the same class. (Desilla v. Sclamch & Co. & Fels &■ Co. ; 
 Weekly Notes, 1880, p. 96.) 
 
 Claims by plaintiffs jointly may be joined with claims by 
 them or any of them separately against the same defendant 
 (Order XVII. r. 6). Claims by or against husband and wife 
 may be joined with claims by or against either of them sepa- 
 rately (Order XVII. r. 4). But these rules are expressly 
 declared (r. 7) to be subject to rr. 1, 8, 9 of Order XVII., 
 which enact that if a plaintiff unites in the same action several 
 causes of action which cannot be conveniently tried or disposed 
 of together, a Master or District Registrar shall on the applica-
 
 ENDORSEMENT ON WRIT. 459 
 
 tion of tbc dcfcDJaat strike out some of such cause:s of action, 
 or order separate trials to be had. 
 
 Endorsement on W rit. 
 
 The writ must be endorsed with a phiiu statement of the 
 nature of the action : — e.g., " The phdntifF's claim is for damages 
 for libel" or "for slander" or "for libel and slander." The 
 words " and for an injunction " may be added ; see ante, p. 4-54. 
 But in cases of newspaper libel, it is as well to give more parti- 
 culars : — " The plaintiff's claim is for a libel on him published 
 
 by the defendant in the Gazette for Friday, November 5th, 
 
 1880." This fuller form is useful as identifying the libel in 
 case judgment should be allowed to go by default. 
 
 It is not necessary to state what sum is asked as damages; 
 for they must always be unliquidated in these actions. But if 
 the plaintiff does so, he should be sure to ask enough, for 
 although he may recover less, he cannot recover move, than the 
 sum claimed on the writ ; unless the judge at the trial will 
 consent, after verdict, to amend the writ under Order XXVII. 
 r. 11 ; R. S. C. Feb. 187G, r. G. At the same time it is foolish 
 to claim an extravagant amount as it may prevent an advan- 
 tageous settlement. The defendant should always be described 
 on the writ with reasonable certainty ; his Christian and sur- 
 name should both be stated, if possible, so as to facilitate 
 service. Corporations should be described by the corporate 
 name. But inaccuracies, or mere misnomers, are immaterial, if 
 not misleading ; and if they are in any way misleading, the 
 indorsement may be amended by a judge at chambers, under 
 Order III. r. 2, who will also dispense with any re-service. The 
 writ must also be indorsed with the address of the plaintiff, and 
 the name and place of business of his solicitor. (See Order IV. 
 rr. 1, 2, 2a, and Set ; K S. C. Feb. 1876, rr. 2, 3). The writ 
 remains in force twelve months from date instead of six months, 
 as formerly (C. L. P. Act, 1852, s. 11) ; and, if any defendant 
 has not been served with it, the plaintiff, by leave of a master 
 or district registrar, on proof that reasonable efforts have been 
 made to serve the writ, or f(;r other good reason, ma}^ renew it 
 for another six months. (Order VIIT. r. 1.) Tlie original Avrit 
 must be produced on the application for renewal (Davies v. 
 Garland, 1 Q. B. D. 250 ; 45 L. J. Q. B. 137 ; 24 W. R. 252 ;
 
 46o PRACTICE AND EVIDENCE. 
 
 83 L. T. 727). But a writ Avill not be renewed so as to bar the 
 Statute of Limitations after the period has expired {Doyle v. 
 Kaufman, 3 Q B. D. 7 ; 47 L. J. Q. B. 2 ; 26 W. E. 98). 
 Concurrent Avrits may be issued at any time within the twelve 
 months for which the original writ is issued, and continue in 
 force as long only as the original (Order VI. r. 1). 
 
 Service of the Writ. 
 
 No service of the writ is required where the defendant, by 
 his solicitor, agrees to accept service and enter an appearance 
 (Order IX. r. 1) ; in other cases the* service of the writ must, 
 wherever practicable, be personal (Order IX. r. 2). If, however, 
 from any cause the plaintiff is unable to effect prompt personal 
 service, he should apply to a judge at chambers for an order 
 for substituted or other service, or for the substitution of notice 
 for service. Such an application must be supported by affidavit 
 setting forth the grounds upon which the application is made 
 (Order X.), e.g., that the defendant had absconded, and that his 
 address could not be ascertained ; {Waters v. Waters, 24 W. R. 
 1.90 ; Hartley v. DUle, 8.5 L. T. 706) ; that two or more calls 
 had been made at his residence, and a copy of the writ left 
 there for him {Capes v. Brewer, 24 W. R. 40) ; or that his only 
 known address is a club. {Rafael v. Ongley, 24 W. R. 857 ; 
 
 84 L. T. 124.) It should also show a probability of the substi- 
 tuted service coming to the defendant's knowledge. {Cooh v. 
 Day, 2 Ch. D. 218 ; 4.5 L. J. Ch. 611 ; 24 W. R. 362 ; Sloman 
 V. The Governor of New Zealand (C. A.), 1 C. P. D. 563 ; 46 L. J. 
 C. P. 185 ; 25 W. R. 86 ; 35 L. T. 454 ; Bitt. 15.) 
 
 The person serving a writ must be able both to read and 
 to Avrite ; it may be necessary for him to swear that the copy 
 served was a true copy, therefore he should be able to read; 
 and he is, by Order IX. r. 13, required to indorse on the writ the 
 date of service, therefore he must be able to write. Service 
 may not be effected on Sunday (29 Car. II. c. 7, s. 6). Service 
 may be made in any county ; but not out of jurisdiction without 
 special leave (Order XI. r. 1, ante, p. 357.) A true copy of the 
 writ should be served, but the person serving it should always 
 have the original with him to show to the defendant, should 
 he require to see it.
 
 SERVICE OF THE WRIT. 461 
 
 Where the action is against husband and wife, service on the 
 husband will be sufficient ; but a judge at chambers may order 
 service on the wife when necessary (Order IX. r. 3), as, e.g., 
 where the husband happens to be abroad. When an infant is 
 defendant, service on his or her father or guardian, or, if none, 
 then upon the person with whom he or she resides, will be good, 
 unless otherwise ordered (Order IX. r. 4). 
 
 When the defendant is a lunatic or person of unsound mind, 
 service on the committee of the lunatic or on the person with 
 whom the person of unsound mind resides, or under whose care 
 he or she is, will be deemed good service, unless a master at 
 chambers otherwise orders (Order IX. r. 5). 
 
 Service may be effected uj^on a firm by serving any one of 
 the partners, or, at the firm's principal place of business, upon 
 any person having the control or management of the partner- 
 ship business there (Order IX. r. 6). So where the firm really 
 consists of only one person (Order IX. r. 6a ; R. S. C, June, 
 1876, r. 4). Whenever by any statute provision is made for 
 service of any writ of summons, or other process, upon any cor- 
 poration, or other body, or number of persons, the writ must be 
 served in manner so provided (Order IX. r. 7). There are such- 
 provisions in the Companies Clauses Act, 1845 (8 Vict. c. 16), 
 s. 135 ; in the Lauds Clauses Act, 1845 (8 Vict. c. 18), s. 134; 
 and the Railways Clauses Act, 1845 (8 Vict. c. 20), s. 138. So, 
 too, writs issued against a "corporation aggregate may be served 
 on the mayor, head officer, town clerk, clerk, treasurer, or secre- 
 tary of such corporation, by the C. L. P. Act, 1852, s. 16. And 
 writs issued against a company registered under the Companies 
 Act, 1862 (25 & 26 Vict. c. 89), may, by s. 62 of the Act, be 
 served by leaving them at the registered office of the company, 
 or sending it by post in a registered letter addressed to the 
 company at such office. But it is quite useless to serve a director, 
 even where the company has no office. (Laiurenson v. The 
 Dublin Metropolitan Junction Ry. Co., 37 L. T. 32.) And as 
 to the service of writs on foreign corporations, see Scott v, 
 Roycd Wax Candle Co., 1 Q. B. D. 404 ; 45 L. J. Q. B. 586 ; 
 24 W. R. 668 ; 34 L. T. 683 ; Newhy v. Van Oppen, L. R. 7 
 Q. B. 2.93 ; 41 L. J. Q. B. 148 ; 20 W. R. 383 ; 26 L. T. 164 ; 
 Machireili v. Glasgoiu and Soatk Wedevii Ry. Co., L. R. 8 Ex. 
 149 ; 42 L. J. Ex. 82; 21 W. R. 339 ; 28 L. T. 167. And,
 
 462 PRACTICE AND EVIDENCE. 
 
 generally, as to service of a writ out of jurisdiction, see Totten- 
 ham V. Barry, 12 Ch. D. 797; 48 L. J. Ch. 641 ; 28 W. R. 180 ; 
 Harris v. Fleming, 13 Ch. D. 208 ; 49 L. J. Ch. 32 ; 28 W. R. 
 389 ; McStephens v. Carnegie, 28 W. R. 385 ; 42 L. T. 309. 
 
 The person serving the writ must (except where substituted 
 service has been ordered : Dymoncl v. Croft (C. A.), 3 Ch. D. 
 512 ; 45 L. J. Ch. 604 ; 24 W. R. 700 ; 35 L. T. 27), within 
 three days at most after such service, indorse on the writ the 
 day of the month and week of the service, otherwise the plain- 
 tiff cannot proceed by default for non-appearance (Order IX, 
 r. 13). 
 
 Appearance. 
 
 The writ, as we have seen, may be issued, in the discretion 
 of the plaintiff, either in London or in any district registry 
 (Order V. r. 1). 
 
 If issued in London, a defendant must enter liis appearance 
 in London (Order XII, r. 1). If issued in a district registry, 
 any defendant residing or carrying on business within the 
 district must appear there (/6. r. 2) ; but any defendant neither 
 residing nor carrying on lousiness in the district may appear 
 either in the district registry or in London (Order XII. r. 3). In 
 the latter case the action will proceed in London (r. 5). As a rule 
 I should always advise such a defendant to appear in London. 
 But if he does so, he must be sure on the same day to give 
 notice of his appearance to the plaintiff's country solicitor in 
 the district registry, or to the plaintiff himself, if he sues in 
 person (Order XII. r, (ia. ; R. S. C, February, 1870, r. 5). As 
 if he omit to do so, judgment will be entered against him in 
 the district registry for want of appearance, and such judgment 
 being regularly entered will not be set aside ; at all events not 
 without a strong affidavit of merits (Order XIII. r. oa ; R. S. C. 
 Dec. 1875, r. 7; Smith v. Dohhin (C. A.), 8 Ex. D. 338; 47 
 L. J. Ex. 65 ; 26 W, R. 122 ; 37 L. T. 777). Notice to the 
 London agent of the plaintiff's country solicitor is insuffi- 
 cient {ib.). 
 
 The defendant must enter an appearance to the writ within 
 eight days after service of the writ, inclusive of the day of service. 
 If the defendant be out of the jurisdiction, a time Avill be 
 named in the order srivinof leave to effect service, witliin which
 
 APPEARANCE. 463 
 
 he must appear (Order XI. r. 4). As to the uiethoJ of entering 
 au appearance, see Order XII. rr. 66, 7, 8, and 9 ; R. S. C. 
 April, 1880, r. 6. If the defendant be described in the writ by 
 initials, or by a wrong name, the appearance should be entered 
 in his true name, as " John William Smith, sued as J. W. 
 Smith," and all subsequent pleadings and affidavits should be 
 so entitled. An infant must appear by his guardian in the 
 guardian's own name {Fitzgerald v. Vllliers, 3 Mod. 236 ; 
 Jannan v. Lucas, 33 L. J. C P. 108). Partners sued in the 
 name of their firm must appear individually in their own 
 names (Order XII. r. 12) ; so must a person carrying on busi- 
 ness in the name of a firm (Order XII. r. 12a ; R S. C. June, 
 1876, r. 6). In either case all subsequent proceedings never- 
 theless continue in the name of the firm. An appearance may 
 be entered by a third person, though he be not a solicitor {Oake 
 and another v. Moorecroft, L. R. 5 Q. B. 76 ; 39 L. J. Q. B. 15 ; 
 18 W. R. 115). 
 
 A defendant may appear at any time before judgment ; but 
 if he appear after the time (eight days) limited for appearance, 
 he must on the same day give notice thereof to the plaintiff's 
 solicitor, or to the plaintiff himself if he sues in person (C. L. P. 
 Act, 1852, s. 29 ; Order XII. r. 15). By giving this notice, he 
 will be in the same position as if he had appeared in time ; but 
 judgment signed after appearance, though plaintiff have no 
 notice, is irregular. (Rhodes v. Bryant, 2 F. & F. 265 ; Oahe 
 and another v. Moorecroft, sivprd.) 
 
 I should never, I think, advise a defendant not to appear to 
 an action of libel or slander, unless he is utterly and hopelessly 
 in the wrong, and at the same time there is no hope of com- 
 promise. If he regrets his conduct, he should come forward 
 and say so, and pay money into Court as amends. And after 
 appearance, a defendant can always apply at chambers for leave 
 to withdraAV his defence and to let judgment go by default. 
 
 Judgment hy Default 
 
 Where any defendant fails to appear to a writ of summons, 
 
 the plaintiff must before taking any proceeding upon default 
 
 ^ file an affidavit of service, or of notice in lieu of service as the 
 
 (Case may be. (Order XIII. r. 2.) lie can then enter inter-
 
 464 PRACTICE AND EVIDENCE. 
 
 locutory judgment, and a writ of inquiry will issue to assess tlie 
 damages. (Order XIII. r. G.) But if the affidavit of service be 
 afterwards proved to have been insufficient, the judgment and 
 execution may be set aside. 
 
 The affidavit of service should be made by the process-server 
 himself, if possible ; but an affidavit by any one who saw service 
 effected will be received, if need be. {Goodtitle v. Badtitle, 2 
 Bos. & P. 120.) It should be properly intituled in the proper 
 Division of the Court, and with the names of all the parties in 
 full. If any defendant be in any way misnamed in the writ, 
 the affidavit should in its title follow the writ (Sims v. Prosser, 
 15 M. & W. 151). Where a constructive service is relied on, 
 the affidavit must show fully why such service should be deemed 
 good service on the defendant. Thus, if a servant or agent of 
 the defendant was served, facts must be stated from which the 
 judge can infer that the copy has actually reached the de- 
 fendant's hands. {BprigMly v. Dunch, 2 Burr. IIIG.) The 
 affidavit must also state the day on which the indorsement of 
 date of service was made on the writ (Order IX. r. 13). 
 
 A sufficient affidavit of service being filed, interlocutory judg- 
 ment may immediately be entered, and a writ of enquiry issues 
 to the sheriff bidding him summon a jury to assess the damages 
 the plaintiff has sustained. As a rule the plaintiff does not 
 recover such heavy damages from a sheriff 's jury, as after a full 
 trial at Nisi Prius. There is a provision in Order XIII. r. G, 
 that a judge at chambers may order the damages to be ascer- 
 tained like any other issue by a judge and jury or by a referee. 
 But it would be very difficult to obtain such an order in a case 
 of libel or slander. As there is no statement of claim, the 
 plaintiff should give the defendant formal notice a reasonable 
 time before the hearing that he intends to offer before the 
 under-.sheriff evidence of such and such special damage. The 
 inquiry is conducted precisely in the same way as a trial at 
 Nisi Prius, except that counsel do not wear wig and gown, and 
 that the plaintiff inust recover some damages. The plaintiff 
 need not adduce any evidence at all before the under-sheriff, 
 but merely put in the libel. And the jury will not in such a 
 case be bound to give him nominal damages only. {Tripp v. 
 Thomas, 3 B. & C. 427.) The under-sheriff before the Judica- 
 ture Act had jurisdiction to certify for costs. (Craven v. Smith,
 
 MATTERS COXSJDERED BY DEFENDANT. 465 
 
 L. R. 4. Ex. 140 ; 38 L. J. Ex. 90 ; 17 W. R. 710 ; 20 L. T. 
 400.) I presume therefore that he may now under the new 
 system, on good cause shown, deprive a plaintiff of costs. But 
 he would never do so except in very exceptional circumstances. 
 Judgment by default may be set aside if irregular on applica- 
 tion to a master at chambers or to a district registrar ; but such 
 application must be made within a reasonable time after defen- 
 dant has notice of the judgment (R. G. Hil. T. 1853, r. 135 ; 
 Order XXIX. r. 14). And even if the judgment be regular, the 
 master or district registrar will set it aside upon terms, if 
 defendant in his affidavit accounts for his non-appearance, and 
 sets out facts which show that he has a good defence on the 
 merits. Such an application should be made promptly, as soon 
 as the defendant is aware that judgment has been signed. 
 
 Matters to he considered by the Defendant. 
 
 The defendant should at the earliest moment after being 
 served with the writ, consider the advisability of apologising. 
 He may pay money into Court at any moment after service of 
 the writ (Order XXX. r. 1) ; and offer an apology in mitigation 
 of damages under Lord Campbell's Act, ss. 1, 2 {ante, p. 299). 
 It is particularly desirable in the case of a newspaper that this 
 C[uestion should be dealt with at once, in order that the apology 
 may be published in the next issue of the paper. Counsel will, 
 if necessary, send advice on this point by telegram. 
 
 If, however, the defendant means to contest the action, he 
 should consider whether the plaintiff has shaped his claim in 
 the proper way, and also whether security cannot be obtained 
 for costs. Thus, if an infant or person of unsound mind has 
 coriimenced an action without a next friend, the defendant 
 should take out a summons to dismiss the action ; and the 
 ' master or district registrar, if satisfied that there ought to have 
 been a next friend will dismiss the action with costs against the 
 solicitor. So if a married woman sue without joining her 
 husband. If in the same action claims by the plaintiffs jointly 
 be combined with claims by them or any of them separately 
 under Order XVI. r. 1, or Order XVII. rr. 4, 5, G, the defendant 
 may apply to have such claims severed on the ground that they 
 cannot be conveniently disposed of in the same action, if such 
 
 H II
 
 466 PRACTICE AND EVIDENCE. 
 
 indeed be the fact. (Order XVII. rr. 1, 7, 8, 9.) But such an 
 application would probably be unsuccessful if the words sued on 
 be the same in each case, or were published simultaneously. If 
 on the other hand two or more actions be unnecessarily brought 
 against thes ame defendant either alone or with others for the 
 same words, or for separate publications of similar words ; or for 
 two distinct libels or slanders, or for a libel and a slander, all 
 arising out of the same transaction and intimately connected 
 with each other; a master at chambers Avill consolidate the 
 actions. (Order LI. r. 4 ; Whitely v. Adams, 15 C. B. N. S. 
 392 ; Jo7ies v, Pritchard, 18 L. J. Q. B. 104 ; 6 D. & L. 529). 
 An application for consolidation may be made at any time after 
 service of the writs, and without any consent on the plaintiff's 
 part. (Hollingsivorth v. Brodrkl; 4 A. & E. 646 ; 6 N. & M 
 240 ; 1 H. & W. 691.) 
 
 If the writ has been issued in a district registry, the defendant 
 may remove the action as of right to London at any time after 
 appearance and before delivering a statement of defence 
 (Order XXXV. r. 13.) This can be done by merely giving 
 a notice under r. 12. If the defendant neglects to remove it befor 
 the expiration of the time for delivering his statement of defence, 
 he must apply to the district registrar for an order for removal, 
 and file an affidavit showing good cause for the application. 
 
 If the alleged libel was published by order of either House of 
 Parliament, all proceedings will be stayed at once on production 
 of a certificate to that effect by the clerk of the House, with an 
 affidavit verifying such certificate. (3 & 4 Vict. c. 9, Appendix C, 
 fost, p. 672.) 
 
 Sec lU'ity fo i ■ Costs. 
 
 An order will generally be made requiring the plaintiff to 
 give security for costs, if he be a foreigner, out of jurisdiction at 
 the moment and holding no land in England, or a felon under- 
 going imj)risonment or penal servitude, or a bankrupt or a 
 liquidating debtor. If there be more than one plaintiff the 
 defendant will not be entitled to security for costs unless they 
 all come within one or other of the preceding classes. Security 
 is generally confined to the future costs of the action ; but it. 
 may include costs already incurred, if they are of any con- 
 siderable amount, and the defendant has not been guilty of
 
 SECURITY FOR COSTS. 467 
 
 ladies in not applying sooner. (BrocMehank cfc Co. v. Kinrfs 
 Lynn Steamship Co., 3 C. P. D. 865 ; 47 L. J. C. P. 321 ; 
 31 L. T. 489 ; Massey v. Allen, 12 Ch. D. 807 ; 48 L. J. Ch. 
 G92 ; 28 W. R 243.) 
 
 Any application for security for costs must be made promptly; 
 that is Avithin a reasonable time after appearance ; or if the 
 defendant was not then aware of the facts entitling him to 
 apply, then within a reasonable time after such facts come to 
 his knowledge, and before taking any further step in the action. 
 If the order be made, it will be a stay of proceedings till security 
 be given ; and if such security be not given within a reasonable 
 time, the defendant may take out a further summons calling on 
 the plaintiff to show cause why the action should not be dismissed 
 with costs unless security be given by a fixed day. (De la 
 Grange v. il/c Andrew, 4 Q. E. D. 210 ; 48 L. J. Q. B. 317 ; 
 27 W. n. 413 ; Ex parte Isaacs, 10 Ch. D. 1 ; 27 W. K 297; 
 39 L. T. 520.) Where the plaintiff, a foreigner, had in an 
 action of libel been ordered to find security for costs to the 
 amount of .:£400, and had given security to that amount, the 
 ( 'uurt refused to increase it in spite of an affidavit to the effect 
 lljat certain necessary witnesses resided abroad and that the 
 expense of obtaining their evidence would greatly exceed £400, 
 il'isani V. Laivson, 5 Scott, 418 ; Bing. N. C. 90.) What is 
 a reasonable time for finding security must depend on the 
 special circumstances of each particular case ; and in deter- 
 mining it, the Court will have regard to the amount ordered to 
 l)f paid. (Stiirla v. Freccia, Polini v. Gray ; 11 Ch. D. 741; 
 i^S W. R. 81 ; 40 L. T. 861.) Where a bond is to be given as 
 si'cnrity for cost.s, it shall, unless a master at chambers other- 
 wise directs, be given to the party or person requiring the 
 security, and not to an officer of the Court. (Order LV. r. 3, 
 U. S. C. April, 1880, r. 41.) 
 
 If a married woman sue by her next friend instead of her 
 husband, and such next friend is a person of no means, or is 
 iiis(jlvcnt, a master at chambers will stay proceedings till 
 I security for costs is given. But in the case of an infant it 
 seems that security for costs will never be required, even though 
 the next friend be a pauper. Nor in the case of a married 
 Iwoman who has a separate income of £I.')00 a vcar. {Koel v. 
 \Noel, 13 Ch. D. 510 ; 28 W. R. 720 ; 42 L. T. 352.) 
 
 II II 2
 
 468 PRACTICE AND EVIDENCE, 
 
 Remitting the Adloa to tJie Counti/ Court. 
 
 By virtue of s. 10 of the County Courts Act, 1867 (30 .1- 31 
 Vict. c. l-i2) : — "It shall be lawful for any person against whom 
 an action for .... libel, slander .... or other action of tort 
 may be brought in a Superior Court, to make an affidavit that 
 the plaintiff has no visible means of paying the costs of the 
 defendant should a verdict be not found for the plaintiff; and 
 thereupon a judge of the Court in which the action is brought 
 shall have power to make an order that unless the plaintiff 
 shall, within a time to be therein mentioned, give full security 
 for the defendant's costs to the satisfaction of one of the 
 masters of the said Court, or satisfy the judge that he has a 
 cause of action fit to be prosecuted in the Superior Court, all 
 proceedings in the action shall be stayed, or in the event of the 
 plaintiff being imable or unwilling to give such security, or 
 failing to satisfy the judge as aforesaid, that the cause be 
 remitted for trial before a County Court to be therein named ; 
 and thereupon the plaintiff shall lodge the original writ and 
 the order with the registrar of such County Court, who shall 
 appoint a day for the hearing of the cause, notice whereof sliall 
 be sent by post or otherwise by the registrar to both parties or 
 their attorneys; and the County Court so named shall have all 
 the same powers and jurisdiction with respect to the cause as if 
 both parties had agreed, by a memorandum signed by them, 
 that the said County Court should have power to try the said 
 action, and the same had been commenced by plaint in the 
 said County Court ; and the costs of the parties in respect of 
 the proceedings subsequent to the order of the judge of the 
 Superior Court shall be allowed according to the scale of costs 
 in use in the County Courts, and the costs of the proceedings in 
 the Superior Court sh;dl be allowed according to the scale in 
 use in such latter Court." 
 
 It is expressl}^ enacted by the Judicature Act, 1873, s. 07, 
 that the provisions of this section shall apply " to all actions 
 commenced in the High Court of Justice in ivJtich any relief 
 is sought ivldch can he given in a County Court.'" The words 
 in italics have been much discussed in Garnett v. Bradley, 
 (C.A.), 2Ex. D. 31ij; 40 L.J. Ex. 54-5; 25 W. R 653; 36 
 
 f
 
 STATEMENT OF CLAIM. 469 
 
 L. T. 725 ; (H.L.) 8 App. Cas. 944 ; 48 L. J. Ex. 186; 2G W. R. 
 G98 ; 39 L. T. 201 ; Parsons v. Tinling, 2 C. P. D. 119 ; 
 4G L. J. C. P. 230; 25 W. R. 255 ; 35 L. T. 851; and the 
 other decisions as to costs ; and were held when taken with 
 Order LV. r. 1, to Hmit the various sections of the County 
 Courts Act, 18G7, to actions which could Ue commenced in the 
 County Court. But it could hardly, I think, be contended that 
 these words have the same effect on s. 10, and limit its opera- 
 tion to actions of tort which could be commenced in the County 
 Court ; though that is perhaps the strictly logical result of the 
 decisions mentioned above. For Order LV. r. 1, has of course 
 nothing to do Avith the matter, and "libel" and "slander" are 
 expressly mentioned in s. 10. Any how, the practice at 
 chambers under the section continues the same, and s. 10 is 
 always considered to apply to all actions of tort, whether they 
 can or cannot be commenced in the County Court. 
 
 The application can be made at any stage of the action ; but 
 only by the defendant. If an order be made, its effect is prac- 
 tically to transform the action into a County Court cause. As 
 to the further conduct of the action, sec 'post, p. 565. 
 
 ■ Statement of Claim. 
 
 The defendant, on his memorandum of appearance, must 
 state whether he does or does not require a statement of claim 
 to be delivered. I should advise the defendant in every action 
 of libel or slander always to require a statement of claim ; as 
 it is clearly to his interest to have the exact words alleged 
 to be defamatory set out on the record. And even if the 
 defendant expressly says that he does not require a statement 
 of claim, I should advise plaintiff still to deliver one, in spite 
 of the risk of costs which he may incur under Order XXI. 
 r. Ic. I do not think any taxing-master would ever consider 
 the delivery of a statement of claim in an action of libel or 
 slander to be " unnecessary or improper." 
 
 The plaintiff may, if he chooses, deliver his statement of 
 claim with the writ ; but this is not often done. He must 
 deliver it within six weeks after the defendant's appearance, 
 unless the time l)e extended l)y leave (Order XXI. r. 1) ; other-
 
 470 PRACTICE AND EVIDENCE. 
 
 wise the defendant will apply to the master at chambers to dis- 
 miss the action with costs for want of prosecution. 
 
 The Judicature Act has made but little difference in the 
 plaintiff's pleadings in an action of libel or slander. An old 
 declaration, if cut up into paragraphs in obedience to Order 
 XIX. r. 4, would pass muster as a statement of claim ; and 
 would, indeed, be a more satisfactory document than many 
 modern pleadings. All decisions since 1852 seem still to apply, 
 except those relating to variances, which are rendered some- 
 what obsolete by the largely increased powers of amendment 
 given to our judges, and the greater readiness with which such 
 powers are exercised. 
 
 The very words complained of must be set out by the plain- 
 tiff in his statement of claim, " in order that the Court may 
 judge whether they constitute a ground of action" {j)er Lord 
 Tentei'den, 3 B. & Aid. 506), and also because " the defendant 
 is entitled to know the precise charge against him, and cannot 
 shape his case until he knows." {Per Lord Coleridge, in Harris 
 v. Warre, 4 C. P. D. 128 ; 48 L. J. C. P. 810; 27 W. R. 461 ; 
 40 L. T. 429.) It is not sufficient to give the substance or pur- 
 port of the libel or slander with innuendoes. {Keiuton v. 
 Stiibhs, 3 Mod. 71; Coohe v. Cox, 3 M. & S. 110; Wood v. 
 Brovm, 6 Taunt. 169 ; Wood v. Adam, 6 Bing. 481 ; Wright 
 v. Clements, 3 B. & Aid. 503 ; Saunders v. Bate, 1 H. & N. 402 ; 
 Solomon v. Laivson, 8 Q. B. 823 ; 15 L. J. Q. B. 253 ; 10 Jur. i 
 796.) So too in cases of slander of title the words must be set ; 
 out verbatim. {Gutsole v. Mathers, 1 M. & W. 495; 1 Tyrw. > 
 & Gr. 694 ; 5 Dowl. 69 ; 2 Gale, 64.) Order XIX. r. 24, does 
 not apply ; for the words of the libel are most material. 
 {Harris v. Warre, supra.) The defendant may be interrogated ij 
 as to the exact words he uttered if the plaintiff cannot other- •] 
 wise discover them. {Atkinson v. Fosbrooke, L. K. 1 Q. B. 628 ; • 
 85 L. J. Q. B. 182 ; 14 W. R. 832 ; 14 L. T. 553.) If the l 
 words are in a foreign language, they should be set out ver- \ 
 bedim in such language. {Zenobio v. Aoctell, 6 T. R. 162 ; 3 ', 
 M. & S. 116. And see R. v. Manasseh Goldstein, 3 Brod. & ' 
 B. 201 ; 7 Moore, 1 ; 10 Price, 88 ; R. & R. C. C. 473.) And 
 an exact translation should be added. Take care not to trans- 
 late actionable words into non-actionable, as was done in Ross 
 V. Laivrence (1651), Sty. 263. It was formerly necessary to ■[
 
 STATEMENT OF CLAIM. 471 
 
 aver expressly in the case of foreign Avords that those present 
 understood them. [Jones v. Davers, Cro. Eliz. 496 ; Price v. 
 Jenkings, Cro. Eliz. 865.) And in Amann v. Danmi, 8 C. B. 
 N. S. 597 ; 29 L. J. C. P. 313 ; 7 Jur. N. S. 47 ; 8 W. R 470, 
 where the words Avere spoken in German, Williams, J. appeared 
 to think that sucli an averment was still necessary, but the rest 
 of the Court thought otherwise, it would seem ; although 
 section 61 of the C. L. P. Act, 1852, was not cited to the 
 Court. It may be safer, however, to insert a short allegation to 
 that effect in the statement of claim, although I do not think it 
 is now essential. (See Precedent, No. 30.) The fact must of 
 course still be proved at the trial. (Ante, p. 110.) 
 
 If the slander was contained in a question, it must be set out 
 as a question, and not as a fact affirmed. So, if the slander 
 consists in the answer to a question, and the answer alone is 
 unintelligible, both question and answer should be set out 
 exactly as they were spoken. (See Bromage v. Prosser, 4 B. 
 & C. 247.) So if the words were "Woor says M'Pherson is 
 bankrupt," they must be so set out ; if the declaration alleged 
 that the defendant had said "M'Pherson is bankrupt" merely, 
 the variance would formerly have been fatal {M'Pherson v. 
 Daniels, 10 B. & C, at p. 274; Bell v. Byrne, 13 East, 554; 
 Pearce v. Rogers, 2 F. & F. 137) ; but now such a variance 
 would be amended, on payment of the costs, if any, thereby 
 occasioned. {Smith v. Knoivelden, 2 M. & Gr. 561.) If the 
 libel consist of two letters written to the Times, neither of 
 which is a complete libel without the other, both must be set 
 out verbatim. {Solomon v. Laivson, 8 Q. B. 823 ; 15 L. J. 
 Q. B. 253 ; 10 Jur. 796). But in other cases it is not necessary 
 to set out the whole of an article or review, containing libellous 
 passages ; it is sufficient to set out the libellous passages only 
 provided that nothing be omitted which qualifies or alters their 
 sense. If, however, the meaning of the libellous passages taken 
 singly is not clear, or if the rest of the article would in an}^ 
 substantial degree vary the meaning of the words conqalained 
 of, the whole must be set out. {Cartwright v. Wright, 5 B. & 
 Aid. 615 ; Buckingham v. Murray, 2 C. & P. 47 ; Rutherford 
 V. Evans, 6 Bing. 451 ; 4 C. & P. 74; Rainy v. Bravo, L. R. 4 
 P. C. 287 ; 20 W. R. 873.) Where detached portions of a book 
 or article are thus given, it should appear on the statement of
 
 472 PRACTICE AND EVIDENCE. 
 
 claim that they aye detached portions ; they should not be 
 printed as though they ran on continuously. {Per Lord Ellen- 
 borough, in Tahart v. Tipper, 1 Camp. 353.) 
 
 It must be alleged that the defendant " spoke and pub- 
 lished " or " ^v^)tc and published " these words, and it should 
 be stated when and to whom. It is essential in cases of libel 
 to add the words "and published," as writing a libel which is 
 never published is no tort. Still it is not absolutely necessary 
 to use the very word " published ; " in Baldwin v. ElpUinston, 
 2 W. Bl. 1037, the phrase "printed and caused to be printed" 
 Avas held sufficient. Further, it must always be alleged that the 
 Avords were spoken or written " of and concerning the plaintiff." 
 Then it should be averred that the defendant spoke or Avrote 
 and published the words "falsely and maliciously." This is a 
 time-honoured phrase which should always appear in every 
 statement of claim ; it would be foolish to idly raise a point of 
 law by omitting it. But in my opinion its omission would not 
 render the statement of claim demurrable. For, by r. 28 of 
 Order XIX., " neither party need in any pleading allege any 
 matter of fact which the law presumes in his favour, or as to 
 which the burden of proof lies upon the other side, unless the 
 same has first been specifically denied." As long ago as 1652, 
 Kolle, C. J., held these words unnecessary in a declaration. 
 {Anon., Style, 392.) In 1818, Lord Ellenborough held the 
 absence of the Avord "falsely" immaterial, "unlawfully and 
 maliciously " being present. {Roiue v. Roach, 1 M. & S. 309). 
 So, too, under the old practice it Avas decided that if " falsely " 
 was inserted, " maliciously " might be omitted. {Mercer v. 
 Sparks (158G), Ow^en, 51 ; Noy, 35 ; Anon. (159G), Moo, 459. 
 See ^)e7' Brett, L. J., in Clark v. Molyneux, 3 Q. B, D. 247, ante, 
 p. 267.) There is, hoAvever, a practical convenience in alleging] 
 malice in the statement of claim, viz., if the defendant pleads 
 privilege, no special reply is then necessary, the formal averment 
 in the statement of claim takes a ncAv meaning, and becomes an 
 allegation of express malice. 
 
 But the part of the statement of claim Avhich requires most 
 care in drafting is the innuendo. As to its office, see ante, pp. 
 100-117. Where the Avords are clearly actionable on the face 
 of them, no innuendo is necessary, though even here one is 
 frequently inserted. But Avhenever the Avords are actionable
 
 STATEiMENT OF CLAIM. 473- 
 
 only in sonic secondary sense, an innuendo is essential to the 
 plaintiff's success. So, too, if it is not clear that the words 
 refer to the plaintiff, an innuendo must be inserted, " meaning 
 therehy the plaintiff," &c. ; and it will be well, though not 
 essential, to state facts which make it clear that the plaintiff is 
 the person referred to (see mite, p. 128). 
 
 Besides the innuendo, it was formerly expected that the 
 pleader should insert in the plaintiff's declaration a variety of 
 minute averments, tending to increase the " certainty " of the 
 pleading, as it was then imagined. Thus it was necessary that 
 there should be a colloquium, an averment that the defendant 
 was speaking of the plaintiff, as well as constant innuendoes, 
 and other allegations properly connecting these innuendoes with 
 the introductory averments which described the locality, the 
 relationship between the various persons mentioned, and all the 
 surrounding circumstances necessary to fully understand the 
 defendant's words. These matters could not be proved at the 
 trial, unless they were set out on the record. (See ante, pp. 118 
 — 120, 128.) And if some of them were proved at the trial and 
 not others, many legal roHnements arose as to how far sucli 
 allegations were or were not divisible, with which I need not 
 trouble my readers. For now, by s. 61 of the C. L. P. Act, 
 1852, the colloquiura and all other such frivolous averments 
 are rendered unnecessary ; and r. 4 of Order XIX. requires that 
 only material facts sliould be stated in the pleadings, and these 
 "as concisely as may be." The only case in which an intro- 
 ductory averment is now essential to the plaintiff's success is 
 where words are actionable only by reason of being spoken of 
 the plaintiff in the way of his office, profession, or trade. Here 
 there must always be an averment that the plaintiff actually 
 held the office or carried on the profession or trade at the time 
 when the words were spoken. (Galliceyv. Marshall, 9 Ex. 300; 
 23 L. J. Ex. 78 ; 2 C. L. R. 399.) And there should also be an 
 averment that the words were spoken of the plaintiff with 
 reference to such office, profession, or trade. But if the former 
 allegation appear, the omission of the latter is not fatal, as the 
 judge will in a proper case amend the statement of claim by 
 inserting an allegation to that effect. {Ramsdale v. Greenacre, 
 1 F. & F. 61.) But it is often desirable in other cases to plead 
 some introductory avcimcnt which, though not strictly neces-
 
 474 PRACTICE AND EVIDENCE. 
 
 saiy, will help to make the case clear, by explaining what is to 
 follow. (See Precedents of Pleading, Nos. 3, 7, and 32, App. A.) 
 
 Also where the Avords were spoken ironically, it must be 
 averred that they were so spoken, or the statement of claim 
 would be demurrable [ante, pp. 113, IIG). 
 
 Always aver, wherever it is not palpably absurd so to do, that 
 the words were spoken of the plaintiff in the way of his trade. 
 This allegation Avon the demurrer for the plaintiff in Foidger v. 
 Netvcomh, L. K 2 Ex. 327 ; 36 L. J. Ex. 169 ; 15 W. K. 1181 ; 
 16 L. T. .595 ; and had it been present it would probably have 
 saved Miller v. David, L. P. 9 C. P. 118 ; 43 L. J. C. P. 84 ; 
 22 W. P. 332 ; 30 L. T. .58. Yet it does not always avail. (See 
 SheaJian v. Ahearne, Ir, P. 9 C. L. 412.) 
 
 Lastly, insert a claim for damages. Where the words are 
 clearly actionable ^9<?>' se, it is of course unnecessary to claim 
 general damages, though it is sometimes done ; but any special 
 damage that may have accrued must in every case be specifi- 
 cally stated' and with sufficient particularity to enable the de- 
 fendant to know precisely what case he has to meet. If the 
 special damage alleged be loss of custom, the customers' names 
 must be given ; so if loss of marriage be alleged, the gentleman 
 or lady must be named. (See Precedents, Nos. 27, 28, 36, App. A.) 
 As to what constitutes special damage, see ante, pp. 309-313. 
 
 If a plaintiff does not deliver a statement of claim within the 
 time limited for so doing, he will be liable to have the action 
 dismissed with costs, under Order XXIX. r. 1. But the defen- 
 dant will not be allowed to take advantage of a mere slip. 
 {Michel V. Wilson, 25 W. P. 380; Canadian Oihvorks Corpo- 
 ration v. Hay, 38 L. T. 549 ; Weekly Notes, 1878, p. 107.) 
 
 Every pleading which contains ten or more folios of seventy- 
 two words must be printed. (Order XIX. r. 5 ; P. S. C. June, 
 
 1876, r. 9.) 
 
 Venue. 
 
 The plaintiff must now select the place of trial, and name it 
 at the foot of his Statement of Claim. If he name no place, it 
 will be tried in Middlesex, unless an order be made to the con- 
 trary, see 2'>ost, p. 528. The plaintiff's choice will be determined 
 as a rule by questions of economy and convenience ; he will fix 
 the trial in the place that best suits himself and his witnesses. 
 But if the action be against a newspaper of wide circulation in
 
 DEMURRER. 475 
 
 the district, or if the defendant in any other way is pojDular or 
 powerful in his own neighbourhood, tlie plaintiff should decide 
 on Middlesex, where he is sure of an educated and impartial 
 
 Instructions for Statement of Defence. 
 
 On receiving the statement of claim, the defendant should 
 carefully consider his position, and decide on his course of 
 action. Often it would be well for him to apologise 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 prepare the necessary pleas." The statement of defence 
 in an action of libel or slander is a most important document 
 (see Precedents, Nos. 25, 26) ; and before settUng 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 evidence by which it is pro- 
 posed 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 merely denying every material allegation in the plaintitf's 
 statement of claim. 
 
 Demurrer. 
 
 The defendant's counsel, on receiving the statement of claim 
 should first consider if it is demurrable. But if it is, it by no 
 means follows that in every such case he should demur. If 
 the words are not actionable j^^er se, and no special damage is 
 alleged, a demurrer is obviously the shortest way to put an end 
 to the action, and should of course be resorted to. 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. But even in the 
 last case the defendant generally should not demur, unless the 
 law is clearly in his favour, and the facts are not. Counsel 
 should always bear in mind the good advice which my Lord 
 Coke deduces as a moral from " the first cause that he ever 
 moved in the King's Bench : " — 
 
 " When the matter in fact will clearly serve for your client,
 
 476 PRACTICE AND EVIDENCE. 
 
 altlioiiL;li yonr opinion is that the phiintiff has no cause of 
 action, yet take heed tliat you do not hazard the matter upon 
 a demurrer ; in which, upon the pleading, and otherwise, more 
 perliaps will arise tliaii you thought of; but first take advantage 
 of the matters of fact, and leave matters in law, which always 
 arise upon the matters in fact, ad ultimum, and never at first 
 demur in law ; when after trial of the matters in fact, the 
 matters in law (as iu this case it was) will be saved to you." 
 {Tlic, Lord CromwelVs Case (1581), 4 Rep. 14.) 
 
 This advice, though nearly three hundred 3^ears old, is as 
 sound now as it was in the daj's of Queen Elizabeth. In fact, 
 owing to tlie liberal powers of amendment given by the C. L. P. 
 Acts, and by the Judicature Acts, its efficacy has increased 
 rather than diminished. The result of most demurrers is that 
 the plaintiff obtains leave, on paying the costs of the demurrer, 
 to amend his statement of claim. And it is generally better 
 for the defendant that the plaintiff should be driven to such 
 amendment at the trial in the presence of the jury. If, there- 
 fore, the facts arc likely to prove in the defendant's favour, he 
 sliould not as a ride demur, unless it is clear that the statement of 
 claim is insufficient, and that no amendment which the plaintiff 
 can trutlifully make will cure the defect. But if, at the trial 
 you will be compelled to admit that your client dlO speak the 
 words complained of, that they are false, and that the occasion 
 Avas not privileged, then by all means demur, and take advan- 
 tage of any jjoint of law you can. 
 
 What I have said above applies to all ordinary cases of 
 defamation, where the law is clear, and the only difficulty is to 
 apply the rule of law to the particular subject in question. But 
 Avhere the matter is one of first impression, or where in any 
 otlier way the law on the point is not clear (as in the Western 
 Counties Manure Co. v. Lauxs Chemical Manure Co., L. R 9 
 Ex. 218 ; 43 L. J. Ex. 171 ; 23 W. R 5), there it is clearly 
 desirable to demur and settle the point of law, before incurring 
 the expense of a trial at Nisi Prius. A summons should be 
 taken out for leave to plead over should the demurrer be over- 
 ruled, and that in the meantime all proceedings be stayed. 
 
 Clients are sometimes afraid that, by not demurring, counsel 
 throw away for ever one chance of success, that the objection, 
 if not taken bv demurrer, cannot bo taken afterwards. But
 
 DEMURRER. 477 
 
 this is not so. No doubt, slight defects, such as slips of the 
 pen, careless omissions through inartificial pleading, &c., may 
 sometimes be aided by pleading over ; and may still more often 
 l>e cured by verdict. But it is never worth while in these days 
 tt) demur on the ground of some merely formal defect. But all 
 matters of substance, as my Lord Coke says, " will be saved to 
 you." " If the defendant wants to avail hiuiself of ' his points 
 of law ' in a summary way, he must demur; but if he does not 
 demur, he does not waive the objection, and may say at the 
 trial that the claim is bad on the face of it." (Per Lindley, J., 
 in StoUii V. Grant, \ C. P. D. 28 ; ±1 W. R. 397 ; 40 L. T. 36.) 
 And, further, as to the effect of a demurrer, see Joluvtssoii v. 
 Bonhote, 2 Ch. D. 298 ; 45 L. J. Ch. 6.51 ; 24 W. R. 619 ; 34 
 L. T. 745. [But nute, that there would be a difficulty in 
 relying upon this rather startling decision in one of the Courts of 
 Common Law ; because the notion of setting up the Statute of 
 Frauds by way of demurrer is abhorrent to every principle of 
 Common Law pleading, whether before or since the Judicature 
 Act. See Catling v. King, 5 Ch. D. 660 ; 46 L. J. Ch. 384 ; 25 
 W. R. 550 ; 36 L. T. 526 ; Daivkins v. Lord Penrhyn, 4 App. 
 Cas. 51.] In Equity it was formerly the practice to allow a 
 successful defendant only the costs of a demurrer, if he went to 
 trial when he might clearly have demurred, on the ground that 
 it is the duty of a defendant to win his case in the manner 
 least expensive to his opponent. {Godfrey v. Tucker, 3 N. R. 
 20 ; Webb v. England, 29 Beav. 44.) But this practice now is 
 in disuse. {Bush v. Trovjbridge Waterworks Co., L. R. 10 Ch. 
 459 ; 23 W. R. 641 ; 33 L. T. 137 ; Pearce v. Watts, L. R. 20 
 E(j. 492 ; 44 L. J. Ch. 492 ; 23 W. R. 771.) 
 
 If there has to be a demurrer, it is often good policy not to 
 demur yourself, but to plead in such a way as to compel your 
 opponent to demur. Then, on the argument of his demurrer to 
 your plea, it is open to you to object to his statement of claim. 
 The Court will sometimes of their own motion call on the de- 
 murring party to defend his own previous pleading. {Clay v. 
 Roberts, 11 W. R. 649 ; 9 Jur. N. S. 580; 8 L. T. 397.) 
 
 Part of a statement of claim may be demurred to, and the 
 rest pleaded to, without leave, provided such part be distinct and 
 severable from the rest, and amounts to a separate cause of 
 action (Order XXVIII. r. 1 ; Eaton v. Johns, 1 Dowl. N. S (J02,
 
 478 PRACTICE AND FAIDENCE. 
 
 G()8) ; but a defentlant cannot, without leave, plead and demui- 
 to the same part of the same statement of claim. He should 
 always apply for leave both to plead and demur whenever the 
 statement of claim appears to be untrue in point of fact as well 
 as bad in law (see Order XXVIII. r. 5). If he does not apply 
 for such leave, and his demurrer is overruled, he will have to 
 apply to the Court for leave to plead under Order XXYIII. 
 r. 12, which will, liowever, be granted to him almost as a 
 matter of course if he can show any merits. {Bell v. 
 Wilkinson and another (C. A.), 26 W. K. 275 ; Weekly 
 Notes, 1878, p. 3.) The defendant must state some ground 
 in law for his demurrer ; but he will not on the argu- 
 ment be limited to the ground or grounds so stated (Order 
 XXVIII. r. 2). It is sufficient apparently to allege that 
 the statement of claim discloses no cause of action. {Per 
 Lindley, J., Weekly Notes, 1876, p. 37.) It is as well, after 
 enumerating the chief grounds, to add a general clause, "and 
 on other grounds sufficient in law to sustain this demurrer," as 
 was done in Daivkins v. Lord Penrhyn (C. A.), 6 Ch. D. 318 ; 
 26 W. R. 6 ; 37 L. T. 80; (H. L.) 4 App. Gas. 51 ; 48 L. J. 
 Ch. 304 ; 27 W. R. 173 ; 39 L. T. 583. The plaintiff cannot 
 amend pending the demurrer, without leave (Order XXYIII. 
 r. 7) ; and, if convinced that his statement of claim cannot be 
 supported as it stands, he should apply for such leave as soon as 
 the demurrer is called on, if not previously. For if he takes 
 his chance of succeeding on the argument, the Court will then 
 be indisposed to allow him to amend. On the other hand, if no 
 ground of demurrer be stated by the defendant, or only a 
 frivolous one, the plaintiff may apjDly to a master at chambers 
 to set aside such demurrer with costs (Order XXVIII. r. 2). 
 
 Each party must draw up his points for argument, and 
 deliver four copies thereof at the proj)er office for the use of 
 the judges. They are also by courtesy usually exchanged 
 between the parties. The demurring party must also make ujj 
 the demurrer book on plain paper, and deliver four copies at 
 the proper office for the use of the judges, four clear days before 
 the day appointed for argument. The demurring party ought 
 also to enter the demurrer for argument ; but, if he does not do 
 so, the party demurred to must; as if the demurrer be not 
 entered by somebody within ten days after delivery, it will be
 
 PARTICULARS. 
 
 479 
 
 deemed to have been allowed with costs. (Order XXVIII. rr. 6, 
 13.) Either party on entering it must give notice thereof to 
 the other. See further as to the event of the demurrer (Order 
 XXVIII. IT. 8—12). 
 
 Often, instead of demurring, the defendant prefers to take 
 out a summons at chambers to strike out or amend certain 
 portions of the statement of claim (Order XXVII. r. 1, 'post, 
 p. 499). But the more usual application at this stage is for 
 particulars. 
 
 FaA'ticidar>i. 
 
 The defendant's counsel should next consider Avhether the 
 statement of claim is sufficiently definite. Before the Judica- 
 ture Act particulars were constantly ordered of the places 
 where, the times Avhen, and the persons to whom the alleged 
 slanders were uttered. The legislature probably intended that 
 there should be no particulars under the Judicature Act ; and 
 an attempt was at first made to carry out this presumed inten- 
 tion. (See Restell and tuife v. Steivard, Weekly Notes, 1875, 
 p. 231 ; 1 Charley, 87 ; Bitt. 4G ; 20 Sol. J. 99 ; GO L. T. Notes] 
 87.) But it was soon found necessary to revive the former practice, 
 and an order for such particulars as above is frequently made, 
 where the details are not set out in the statement of claim. But 
 particulars of the names of the persons passing in the street at 
 the time the alleged slander was uttered will not be ordered. 
 {Per Denman, J., in WlngcDxl v. Cox, Weekly Notes, 1876, jx 106 ; 
 Bitt. 144 ; 20 Sol. J. 341 ; GO L. T. Notes, 304.) So, too] 
 whenever any special damage is claimed, but not with sufficient 
 explicitness, particulars will be ordered of the alleged damao-e, 
 setting out the names of the customers who 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 compelled to strike out the allegation of special damao-o 
 from his statement of claim. (See Precedents of Pleading, 
 App. A., Nos. 27, 28.) Paiticulars of general damage will, 
 of course, never be ordered ; as such damage exists rather in 
 contemplation of law than in reality. 
 
 The summons for particulai's should always ask for a stay. 
 (See form, p. G08.) It will then bo a stay from the time it is 
 attendable till the particulars are delivered, unless the master 
 otherwise order.
 
 48o PRACTICE AND EVIDENCE. 
 
 Statement of Defence. 
 
 Formerly, 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, or in any 
 defamatory actionable sense which the words themselves imported, 
 asserted that tlie occasion was privileged, and also denied that 
 the words were spoken of the plaintiff in the way of his profes- 
 sion 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 ; though " Not Guilty by 
 statute" may. (Order XIX. rr. 20, 16.) It is necessary now to 
 deal specifically with every fact of which the defendant does 
 not admit the truth. It will be necessary, therefore, to consider 
 the following several pleas : — 
 
 1. Denial of the publication. 
 
 2. Traverse of the innuendo. 
 
 3. Traverse of the plaintiff's special character. 
 
 4. Denial that the words were spoken with reference thereto. 
 
 5. Denial that the words were spoken of the plaintiff. 
 
 6. Traverse of the damage. 
 
 7. No libel. 
 
 8. Privilege. 
 
 9. Justification. 
 
 10. Apology. 
 
 11. Accord and satisfaction. 
 
 12. Statute of Limitations. 
 
 13. Previous action. 
 
 14. Other defences. 
 
 15. Payment into Court. 
 
 16. The defendant may also set up a counterclaim. 
 
 All these defences, or any number of them, may be pleaded 
 together in the same action without leave ; altliough they are 
 obviously inconsistent. A defendant may " raise by his state- 
 ment of defence without leave, as many distinct and separate, 
 and therefore inconsistent, defences as he may think proper, 
 subject only to the provision contained in rule 1, Order XXVII.," 
 as to striking out embarrassing matter. {Per Thesiger, L.J., in 
 Berdan v. Crveemuood, 3 Ex. D. 2o5 ; 47 L. J. Ex. 628 ; 26 
 W. R. 002 ; 3i) L. T. 223.)
 
 TRAVERSES. 481 
 
 Thus, in Restell and ivife v. Steuurd, Weekly Notes, 187o, 
 pp. 231, 232 ; 1 Charley, 87 ; Bitt. 4G ; 20 Sol. J. 99 ; 60 
 L. T. Notes, 87, Quain, J., held that a denial of the publication 
 and a justification could be pleaded together. In Stainhank v. 
 Beckett, Bart, Weekly Notes, 1879, p. 203, the defenda,nt 
 pleaded that the alleged libel did not relate to the plaintiff, 
 that it was a fair comment upon a matter of public interest, 
 and also that it was true in fact. This was obviously most in- 
 consistent, but the Court of Appeal held that it was not em- 
 barrassing, and merely ordered particulars of the justification. 
 (See also Hawkesley v. Bradshaw (C. A.), 5 Q. B. D. 302 ; 49 
 L. J. Q. B. 333 ; 28 W. R. 5.57 ; 42 L. T. 285 ; 2^ost, p. 492.) 
 
 If there is some defect or absurdity in your adversary's 
 pleading, and yet you decide neither to demur nor to apply for 
 an amendment under Order XXVII. r. 1, then be careful in 
 pleading over not to aid the defect 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. 
 
 The defendant cannot bring in a third party under Order 
 XVI. rr. 17 — 21 ; because there is no contribution between 
 tort-feasors. [Hovivell v. London General Omnibus Co., 2 Ex. 
 D. 365 ; 46 L. J. Ex. 700 ; 25 W. R 610 ; 36 L. T. 637.) 
 
 As to pleading a defence which has arisen since action 
 brought, see Order XX 
 
 The defendant may deliver interrogatories with his Statement 
 of Defence, see fost, p. 500. 
 
 Traverses. 
 
 It was intended by the framers of the Judicature Act, that 
 each party in his pleading should frankly admit every state- 
 ment of fact which he does not intend to seriously dispute at 
 the trial. But this intention has not been carried out. Counsel 
 do not make admissions unless they are expressly instructed to 
 do .so, which they very seldom are. No doubt sometimes in 
 cases of slander it may be desirable to deny uttering the words, 
 80 as to compel the plaintiff to call as his witness the person to 
 whom the defendant spoke, whom then the defendant cross- 
 examines to show privilege. But as a rule in cases of libel the
 
 482 PRACTICE AND EVIDENCE. 
 
 defendant should admit the publication whenever it can be 
 proved against him without trouble. All the rest of the state- 
 ment of claim, even immaterial averments, should be traversed; 
 as if not denied they will be taken as admitted (Order XIX. 
 r. 17). The most convenient form of denial is this : — 
 
 "The defendant denies the allegations contained in para- 
 graj^h 3 of the plaintiff's Statement of Claim, and each and 
 every of them." 
 
 This is the form proper to a denial of matters within the de- 
 fendant's knowledge ; as to mattei's not within his knowledge, 
 it will be more correct to say :— 
 
 " The defendant does not admit any of the allegations con- 
 tained in paragraph 8 of the Statement of Claim." 
 
 But it is contrary to the spirit of Order XIX. rr. 20 and 22 
 to deal too largely in these general traverses. It also looks 
 weak, as though the defendant had no real defence. It will be 
 well therefore to insert some more special denials : — 
 
 1. "The defendant denies that he spoke or jDublished of the 
 plaintiff the words set out in paragraph 8 of the Statement of 
 Claim." The words " either falsely or maliciously " must not be 
 added. For the jDlea, 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 words to a plea wliich really 
 raises quite a different defence. 
 
 2. " The defendant denies that he spoke or published of the 
 plaintiff the words set out in paragrajDh 3 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 ' 
 bo traversed. 
 
 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 plaintiff's Statement of Claim ; " 
 or " The plaintiff was not at the date, &c., such vicar as alleged," 
 or " was not at such date a 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, 18o3, r. 16 ; Jud. 
 Act, Order XIX. r. 11.)
 
 BONA FIDE COMMENT. NO LIBEL. 483 
 
 4. " The defendant denies tliat 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 butclier [office or profession of 
 
 ]." This plea did not require to be pleaded specially 
 
 under the old system ; and it would, therefore, I presume be 
 now deemed to be included in a general denial of the allega- 
 tions in the paragraph. But it is better to set it out plainly. 
 
 5. " The defendant denies that the said words in any way 
 referred to the plaintiff They were not so understood by 
 those who heard them uttered." (See Precedent of Pleading, 
 No. 5, para. 3.) 
 
 6. Deny all the allegations as to damage. It was formerly 
 the rule that the defendant could not plead to damage. But 
 he is now bound at all events to deny the allegations contained 
 in that paragraph (Order XIX. r. 17) ; he often goes further, 
 and states that the damage alleged to have been suffered was 
 not caused by defendant's words, but by a repetition of them, or 
 is otherwise too remote. (See Precedent, No. 34, para. 4.) 
 
 7. Bond fide Comment. No Libel. 
 
 For a plea of hond fide comment on a matter of public interest, 
 see Precedents, Nos. 5, 19, 20 ; Earl Lucan v. Smith, 1 H. & N. 
 481 ; 26 L. J. Ex. 94; 2 Jur. N. S. 1170 ; Clinton v. Hender- 
 son, 13 Ir. C. L. R App. 43 ; Hort v. Meade, Ir. R. 7 C. L. 551. 
 
 It was decided in Ireland before the Judicature Act that a 
 plea " that the matter contained in the said paragraph is not a 
 libel" was a good plea ; for it raised a question which was now 
 for the jury, not the judge. {Xixon v. Harvey, 8 Ir. C. L. -Hep. 
 446.) And since then such a plea has been freely used in 
 Ireland. (See Maguire v. Knox, Ir. R. 5 C. L. 408 ; Stannus 
 V. Finlay, Ir. R. 8 C. L. 264 ; Cosgrave v. Trade Auxiliary 
 Co., Ir. R. 8 C. L. 349 ; M'Lougldln v. Dwyer (1), Ir. R. 9 C. L. 
 170.) But such pleading is not in accordance with our practice. 
 Perhaps in England the following plea would be allowed : — 
 " The defendant denies that he wrote or published the said 
 words of the plaintiff with the meaning alleged in paragraph 3 
 of the plaintiff's Statement of Claim, or in any other defama- 
 tory sense. The said words without the alleged meaning are 
 no libel." But a simple ]jlea that "the said words are not defa- 
 matory," would certainly be regarded as an informal demurrer.
 
 484 PRACTICE AND EVIDENCE. 
 
 8. Privilege. 
 
 It was decided in the Exchequer Division in a case not 
 reported (SpacJcman v. Gihney), that since the Judicature Act 
 privilege must be specially pleaded, and also that the facts and 
 circumstances must be stated showing why and how the occa- 
 sion is privileged. This is clearly in accordance with Order 
 XIX. r. 18. There is a similar decision in Ireland (Simmonds 
 V. Bivnne, Ir. R. 5 C. L. 358.) Many such pleas may be 
 suggested : — 
 
 " The said words were spoken by the defendant whilst in tlie 
 witness box during his examination on oath as a witness, in the 
 course of a judicial proceeding before an alderman at Guildhall." 
 (See Seaman v. Netherdift, 1 C. P. D. 540 ; 46 L. J. C. P. 128 ; 
 25 W. R 159 ; 35 L. T. 784.) 
 
 " The said words are j)art of an official report written by the 
 defendant in accordance witli his military duty for the informa- 
 tion of his military superiors, and published by him in the dis- 
 charge of his said duty to such military superiors and not 
 otherwise." (Dawhins v. Lord Paulet, L. R. 5 Q. B. 94 ; 39 
 L. J. Q. B. 53 ; 18 W. R. 336 ; 21 L. T. 584.) 
 
 " Before and at the time of the alleged grievances the de- 
 fendant was the son-in-law of the Mrs. Hawkins mentioned in 
 paragraph 3 of the Statement of Claim. The defendant was 
 informed, as the fact was, that she was about to marry the 
 plaintiff. Thereupon the defendant spoke the said words con- 
 fidentially to the said Mrs. Hawkins, without malice, and in the 
 honest desire to protect her private interests, and those of the 
 defendant. The defendant at the time bond fide believed in i: 
 the truth of what he said." {Todd v. Hawkins, 8 C. & P. 88 ; :■ 
 2 Moo. & Rob. 20.) See also Precedents, Nos. 2, 11, 15, 17, 20, 39. \\ 
 
 It is necessary where the occasion is not absolutely privileged li; 
 to aver that the defendant acted bond fide and without malice. ( 
 {Smith V. Thomas, 2 Bing. N. C. 372.) Such an allegation is 
 immaterial 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 {Fitzf/erald v. Campbell, 18 ' 
 Ir. Jur. 153 ; 15 L. T. 74.) It is better however to avoid such. | 
 an averment altogether and to state that he repeated the charge. |
 
 JUSTIFICATION. 485 
 
 hond fide and in the honest belief in its truth. An averment 
 of just and reasonable gTOunds runs dangerously near to a justi- 
 fication, and the averment of hona fides covers and includes it. 
 
 9. Justification. 
 
 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. Latwier, 3 Ex. 1). 15, 852 ; 
 47 L. J. Ex. 470 ; 25 W. R. 751 ; 26 W. R. 305 ; 37 L. T. 36U, 
 819) ; and, if 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; but 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.(j., " 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 were : — " He stole his 
 master's sheep," it would be sufficient 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 should be expressly justified 
 (per Quain, J., in Restell & another v. StevKvrd, 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. {JS^eiuman v. Bailey, 
 2 Chit. 665 ; I' Anson v. Stuart, 1 T. R. 748 ; 2 Sm. Lg. Cas. 
 6th ed. 57; Holmes v. Cateshy, 1 Taunt. 543; Hichinhotltam 
 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. {WaJdey v. Cooke & 
 Eealey, 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.) 
 
 These instances should be set out fully in the plea ; they 
 should be stated to have happened " before the publication, if 
 any, of the said words," and then the plea may conclude, 
 "Wherefore the defendant says that the said words are true in
 
 486 PRACTICE AND EVIDENCE. 
 
 substance and in fact," Sucli instances must be stated with 
 sufficient particularity to inform the plaintiff precisely what are 
 the facts to be tried. As a rule these instances should be 
 given in the plea. (Honess & others v. Stuhhs, 7 C. B. N. S- 
 555 ; 29 L. J. C. P. 220 ; 6 Jur. N. S. 682.) But if they are 
 numerous or complicated, they may be stated in the particulars 
 instead. {Behrens v. Allen, 8 Jur. N. S. 118 ; 3 F. & F. 135 ; 
 Jones V. Beiuieke, L. R. 5 C. P. 82; Gourley v. Plimsoll, L. R. 
 8 C. P. 302 ; 42 L. J. C. P. 121 ; 21 W. R. 683 ; 28 L. T. 598.) 
 
 If it appears from the words set out in the statement of 
 claim that the defendant did not make a direct charge himself, 
 but only repeated what A. said, then a general plea that the 
 words are true will be insufficient {Duncan v. TJnvaites, 3 B. & 
 C. 556); for it will only amount to an assertion that A. said 
 so ; whereas the defendant must go further and prove in addition 
 that what A. said was true. (See ante, pp. 173-6.) 
 
 The precise charge must be justified ; and the whole of the 
 precise charge, (Goodbume v. Boivman d- others, 9 Biug. 
 532.) Every fact stated must be proved true (Weaver v. Lloyd, 
 2 B. & C. 678 ; Hehham v, Blachuvod, 11 C. B. Ill ; 20 L. J. 
 C. 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," 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. 639 ; 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 nmst 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, Lewis ((j others, 3 Br. et Bing, 297 ; 3 B. & Aid. 702 ; 7 
 Moore, 200. See ante, pp. 170-3.) 
 
 But the defendant may in mitigation of damages justify a 
 part of the libel, provided such jDart is distinct and severable 
 from the rest. (See ante, p. 176.) Also the defendant may 
 deny that the plaintiff's innuendo puts the true construction on
 
 APOLOGY. 487 
 
 the words and assert that in their natural and ordinary signifi- 
 cation they are true. Such a plea might be in the following 
 form : — " The defendant denies that he spoke or published the 
 said words of the plaintiff with the meaning alleged in para- 
 graph 3 of the Statement of Claim. The said words, without 
 the said meaning, and according to their natural and ordinary 
 signification are true in substance and in fact." (See ante, 
 p. 177.) But if the defendalit 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. Coicrthope, 20 Sol. 
 Journ. 724.) For a plea of justification under the new system 
 will " not be taken to intend a justification of anything more 
 than it actually professes to justify." But any plea which wears 
 a doubtful aspect, which may be either a justification, or a 
 mere traverse, or a plea of privilege, will be struck out at 
 chambers as embarrassing. (Carr v. Duckett, H. & N. 783 ; 
 29 L. J. Ex. 4G8 ; Bremridge v. Latimer, 12 W. R. 878 ; 10 
 L. T. 816 ; O'Keefe v. Cardinal Gidlen, 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. {Kirhy v. Shn])son, 3 Dowl. 791.) 
 
 10. Apology. 
 
 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 periodi- 
 cal publication, the defendant may plead that the libel was 
 inserted without actual malice and without gross negligence, 
 and that before the commencement of the action, or tit the 
 earliest opportunity afterwards, an apology was published or 
 offered, and may pay money into Court by way of amends. 
 Money must be paid into Court when the pleading is delivered 
 if not before (8 & 9 Vict. c. 75, s. 2). But such payment 
 will not operate as an admission of liability, even to the amount 
 paid in. (Jones v. MacJcie, L. K. 3 Ex. 1 ; 37 L. J. Ex. 1 ; 16 
 W. R. 109 ; 17 L. T. 151.) Any other pleas may be pleaded
 
 488 PRACTICE AND EVIDENCE. 
 
 at the same time. {Ilaivkesley v. BradsJuiiv (C. A.), 5 Q. B. D. 
 802; 49 L. J. Q. B. 333; 28 W. R. 557; 42 L. T. 285 ; post, p. 492.) 
 
 The following is the form of a plea under Lord Campbell's 
 Act : — " The alleged libel was contained in a public daily news- 
 paper called the Daily Press and was inserted in 
 
 such newspaper without actual malice and without gross negli- 
 gence. Before the commencement of this action [or at the 
 earliest opportunity after] the defendant inserted in several 
 issues of the said newspaper a full apology for the said libel 
 according to the statute in such case made and provided ; and 
 the defendant immediately after the commencement 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." 
 
 The above section of Lord Campbell's Act applies only to 
 public periodical publications; but s. 1 of the same Act em- 
 powers 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 ^ot empower a 
 defendant to j^lead an apology ; for it requires him ivith his plea 
 to give notice in writing to the plaintiff of his intention to give 
 such apology in evidence. But tliere can be no objection now 
 to the plaintiff making such written notice part of his state- 
 ment of defence ; indeed that he made such an apology is a 
 material fact on which ho relies, within the meaning of Order 
 XIX. r. 4. I incline to think that it is now no longer objec- 
 tionable for a defendant to state in his pleading facts which are 
 no defence, but which tend to mitigate the damages. At least, 
 I do not see how such a method of pleading could embarrass a 
 plaintiff: it gives him notice what will be the defendant's case 
 at the trial. 
 
 But it is quite another matter for the defendant in his 
 Statement of Defence to apologize for the first time, when he 
 had previous opportunities, of which he did not avail himself. 
 Still this is frequently done when money is paid into Court : it
 
 ACCORD AND SATISFACTION. 489 
 
 shows that the defendant has taken his counsel's opinion, and 
 acted on it. It certainly cannot embarrass a plaintiff to have 
 placed upon the record a full retractation of the charge accom- 
 panied by an expression of regret ; and it should conduce to an 
 amicable settlement. (See Precedent, No. 34.) But it is cer- 
 tainly strange pleading ; and if the plaintiff wishes to have it 
 struck out, his application will probably be successful ; though 
 be can hardly afterwards demand an apology at the trial. 
 
 11. Accord and Satisfaction. 
 
 "The plaintiff was the proprietor and publisher of a certain 
 weekly journal called the Musical Rev levj ; and the defendant 
 was the proprietor and publisher of another weekly journal 
 called the Orchestra. 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 respectively 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 sus- 
 tained by the plaintiff in respect thereof. And thereupon, in 
 pursuance of the said agreement, the defendant did, on the 14th 
 of May, 1864, 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 tfie making of the said agreement and in pursu- 
 ance thereof, to wit, on the 14th of May, 1864, print and publish 
 his part of the said apologies in the form agreed on in his said 
 weekly journal, the Musiccd Revieiu. 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." 
 
 A similar plea under the old practice was held a bar to 
 the action in Boosey v. Wood, 3 H. & C. 484 ; 84 L. J. Ex. 65. 
 (See also Lane v. Aiyplegate, 1 Stark. 97.) 
 
 As to accord and satisfaction made by one jointly liable with 
 the defendant, see Bainhridge v. Lax, 9 Q. B. 819 ; Thurman 
 V. Wild, 11 A. Ik E. 453 ; Hey v. Aloorhouse, 6 Bing. N. C. 52. 
 An accord or satisfaction made by a tliird party on the defend- 
 ant's behalf, and accepted by the plaintiff in discharge will be a 
 bar to the action. {Jones v. Broadhurst, 9 C. B. 173.)
 
 493 PRACTICE AND EVIDENCE. 
 
 12. Statute of Limitations. 
 
 " The alleged cause of action did not accrue within six years 
 before this suit ; " or in the case of slander actionable i^er se, 
 " The words complained of were not spoken within two years 
 before this suit." (See ante, p. 455.) 
 
 13. Previous Action. 
 
 " The plaintiff heretofore, to wit, on the day of , 
 
 1878 (date of writ), sued the defendant in the Division of 
 
 this Honorable Court, for the same cause of action as is alleged 
 in the Statement of Claim herein ; and such proceedings were 
 thereupon had in that action that the plaintiff afterwards by 
 the judgment of the said Court recovered against the defendant 
 
 £ for the said 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 was 
 signed, and the number of the roll in wdiich such proceedings 
 are entered. (Reg. Gen. Hilary Term, 1853, r. 10.) 
 
 A plea that judgment was recovered against a joint publisher 
 will also be a bar to an action against the others for the same 
 publication. (See ante, p. 457.) 
 
 A plea that in a former action judgment was given against 
 the plaintiff, is really a plea in estoj^pel. Commence as above. 
 " And such proceedings were thereupon had in that action that 
 afterwards and before this suit it was considered by the judg- 
 ment of the said Court in the said action that the plaintiff 
 should take nothing by his writ for or in respect of the said 
 
 cause of action. The said judgment w^as signed on the 
 
 day of , A.D. 1878, and still remains in force. [The pro- 
 ceedings are entered on roll No. • .] Wherefore the defen- 
 dant says that the plaintiff is estopped, and ought not to be 
 admitted to bring the present action against the defendant." 
 
 14. Other Defences. 
 
 In an American case, Beach et ux. v. Beach, 2 Hill, 260, the 
 defendant pleaded a release. (See ante, p. 349.)
 
 PAYMENT INTO COURT. 491 
 
 By virtue of the Married Women's Property Act Amendment 
 Act,' 1874^ (37 & 38 Vict. c. 50), s. 2, a husband, if sued for a 
 libel or slander published or uttered by his wife before her 
 marriage may, in addition to any other pleas, plead that no 
 property vested in him by reason of the marriage within the 
 meaning of s. 5, or if a certain amount of property did so vest in 
 him, then that he is liable to that extent, and no further. 
 
 By Order XIX. r. 3, it is provided that " no plea or defence 
 shall be pleaded in abatement : " but we are not told what 
 course to adopt in cases where such a plea would formerly have 
 been good. Where a man and woman sue as husband and wife 
 for slander of the woman, the defendant is surely still entitled 
 to plead that they are not husband and wife ; for, if so, the 
 male plaintiff has^no right of action. (See Chantler and wife 
 V, Lindsey, 16 M. & W. 82 ; 4 Dowl. & Lowndes, 339.) 
 
 15. Payment into Court. 
 
 Payment into Court is not strictly a defence : it is rather a 
 payment in mitigation of damages, allowed as a favour to de- 
 fendants by statute, in the hope that thereby many actions may 
 be settled out of Court. Such a plea was not formerly allowed 
 in all actions of tort : but, where allowed, its effect always was 
 to admit that the plaintiff had a cause of action against the 
 defendant ; and if the declaration was specific to admit tlia 
 cause of action therein specified ; so that the only question left 
 for the jury was that of damages idtra, that is, Is the sum so 
 paid into Com-t sutficient to compensate the plaintiff, or is he 
 entitled to more ? (Perren v. Monmouthshire Railway Co., 11 
 C. B. 855.) 
 
 By s. 70 of the C. L. P. Act, 1852, payment into Court was 
 allowed in all actions except actions for assault and battery, 
 false imprisonment, libel, slander, or malicious arrest or prose- 
 cution, or debauching the plaintiff's daughter or servant. But 
 s. 2 of 6 & 7 Vict. c. 96, ante, p. 487, was left unaffected. 
 
 But now by the Judicature Act, Order XXX. r. 1 : — " Where 
 any action is brought to recover a debt or damages, any defen- 
 dant may at any time after service of the writ, and before or at 
 the time of delivering his defence, or by leave of the Court or a 
 iudge at any later time, pay into Court a sum of money by way
 
 492 PRACTICE AND EVIDENCE. 
 
 of satisfaction or amends." These words are so wide that they 
 must be taken to ov^errule s. 70 of the C. L. P, Act, 1852, and 
 money therefore can now be paid into Court in actions of 
 slander as well as libel. And, moreover, such payment into 
 Court, if properly pleaded, will not operate as an admission of 
 the cause of action. This was decided by the Court of Appeal 
 in Potter v. Home and Colonial Assurance Co. (not reported). 
 But shortly afterwards the Queen's Bench Division decided that 
 although such a payment need not necessarily be an admission 
 that the plaintiff had a cause of action, still to plead payment 
 into Court and to deny the plaintiff's right of action in respect 
 of the same part of the statement of claim might in special 
 circumstances be embarrassing to the plaintiff, and therefore 
 such a pleading would be amended under Order XXVII. r. 1, 
 2Jost, p. 499. {Biyurr v. Hall, 2 Q. B. D. 615 ; 46 L. J. Q. B. 
 693 ; 20 W. R. 678 ; 37 L. T. 813.) This decision, however, 
 must be considered to be strictly confined to actions of its own 
 peculiar character, and not to lay down an}' general rule. For 
 the general rule is the reverse, that a defendant may by his 
 statement of defence deny the plaintiff's causes of action, and 
 at the same time plead payment into Court in respect of the 
 whole or any part of them. (Berdan v. Greemvood and 
 another (C. A.), 3 Ex. D. 251 ; 47 L. J. Ex. 628 ; 26 W. R. 
 902 ; 39 L. T. 223.) In that case, Brett and Thesiger, L.JJ., 
 after laying down this general rule, add : — " It may, however, 
 jDOSsibly be that in some actions brought to try a right of or in 
 respect of property which is denied, or to establish character 
 which has been assailed, and in actions where the plaintiff is 
 by the statement of defence charged with fraud, and perhaps 
 in some other cases, it would be, as a matter of practice, im- 
 proper to allow the defence of payment into Court concurrently 
 with other defences." And Cotton, L. J., also says : — " I am of 
 opinion that the paragraph in question cannot be considered as 
 in any way tending "to prejudice, embarrass, or delay the fair 
 trial of the action ; " but there may be special cases in which this 
 would be the effect, as in actions for libel, which the defendant 
 by his statement of defence justifies." 
 
 This very point was raised before the Queen's Bench Division 
 in Hau'kesley v. Bradshaiv, 5 Q. B. D. 22 ; 49 L. J. Q. B. 207; 28 
 W. R. 167 ; 41 L. T. 053. There the defendant admitted the
 
 PAYMENT INTO COURT. 493 
 
 publication but traversed the innuendo ; then said that the 
 words without the alleged meaning were true in substance and 
 in fact; then that the words were honcl fide comment on a 
 matter of public interest, and therefore not libellous ; and then 
 pleaded under Lord Campbell's Act that they were published 
 inadvertently, and apologized, and paid forty shillings into 
 Court. This mode of pleading the Court held to be embarrass- 
 ingr under Order XXVII. r. 1 ; and both Cockburn, C. J., and 
 Manisty, went further and held that Order XXX. r. 1 did not 
 apply to actions for libel, and that payment into Court in 
 actions of libel could still only be pleaded under Lord Camp- 
 bell's Act, and therefore still operated as an admission of the 
 cause of action. But the Court of Appeal (5 Q. B. D. 302 ; 
 49 L. J. Q. B. 383 ; 28 W. R 557 ; 42 L. T. 285) held that the 
 rule in Berdan v. Greemvood applied to actions of libel and to 
 everything else ; that a plea under Lord Campbell's Act can be 
 pleaded with any other defences ; that such a method of plead- 
 ing was not embarrassing ; and that the plaintiff's course, if the 
 imputation was a serious one, was to go down to trial trusting 
 to the judge and juries to protect him, either in the way of 
 damages or of costs, in the event of the justification failing. It 
 will in future be almost impossible for any collocation of pleas 
 in an action of defamation to be held embarrassing within 
 Order XXX. r. L {O'Brien v. Clement, 15 M. & W. 435 ; 
 15 L. J. Ex. 285 ; 3 D. & L. 676 ; 10 Jur. 395; and Barry v. 
 M'Grath, Ir. R. 3 C. L. 576, are now clearly overruled.) 
 
 However, no doubt when it comes to trial, a payment into 
 Court will generally be considered by the jury as a practical 
 admission that defendant is somehow in the wrong, and this 
 as a matter of common sense and not of law. I should not, 
 therefore, advise any defendant who had a fair defence on the 
 merits to pay money into Court. Nor again is it geuei'ally 
 worth while to pay a farthing or a shilling into Court ; for it is 
 very improbable that plaintiff will accej^t that sum, and if 
 the jury do not award more than such contemptuous damages, 
 the judge would probably order plaintiff to pay his own costs. 
 If defendant is going to pay anything into Court, he should pay 
 a good round sum ; generally twice as much as the defendant 
 himself thinks the plaintiff" is entitled to, will be about the right 
 amount for him to pay into Court.
 
 494 PRACTICE AND EVIDENCE. 
 
 If it be desired to pay money into Court and at the same 
 time to guard against any admission, the plea should commence 
 with a saving clause as in Berdan v. Greeniuood : — " Lest con- 
 trary to what the defendant believes and contends he is under 
 any liability to the plaintiff," or thus, " The defendant, while 
 not admitting that he is under any liability to the plaintiff, yet 
 
 brinors into Court the sum of £ , &c." At whatever stage 
 
 of the action the money be paid into Court, the payment must 
 be specially pleaded in the statement of defence. 
 
 Counierclawis. 
 
 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 counterclaim, and the fact that they arise out of a dif- 
 ferent transaction will be no ground for excluding them. (Quin v. 
 Hession, 40 L. T. 70 ; 4 L. R. (Ir.) 35.) Though of course a 
 master at chambers may on the application of the plaintiff 
 before trial, strike out a counterclaim, if in his opinion it 
 " cannot be conveniently disj)osed of in the j)ending action, or 
 ought not to be allowed." In Kicholson v. Jacl-son, W, N. 
 1876, p. 88, 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, was struck out, Lindley, J., remarking, " This is 
 one cf those cases where it would be very difficult to keep the 
 jury from mixing up the two claims." So in Lee v. Colyer, 
 'W." N. 187G, p. 8 ; Bitt. 80 ; 1 Charley, 86 ; 20 Sol. J. 177 ; 60 
 L. T. Notes, 157, Quain, J., struck out a counterclaim for 
 not repairing a house, the action being for assault and slander. 
 But in Dohede v. Fisher, at the Cambridge Summer Assizes, 
 1880, the Lord Chief Baron had to try an action of slander, in 
 which there was a counterclaim about a right of shooting over 
 the land occupied by the defendant. {Times for July 29th, 1880.) 
 Where however the action was for two quarters' rent and the 
 writ was specially indorsed for 30/., the defendant was not 
 allowed to set up a counterclaim for libel and slander not con-
 
 JUDGMENT IN DEFAULT OF PLEADING. 495 
 
 nected with the claim for rent. [Rotlieram v. Priest, 49 L. J. 
 C. P. 104 ; 28 W. R. 277; 41 L. T. 558.) 
 
 Facts relied on in support of a counterclaim must be specifi- 
 cally stated as such ; they must be distinguished from the facts 
 relied on as defence proper. (Croive v. Barnicot, 37 L. T. 68.) 
 But of course they need not be repeated at full length, if they 
 have been previously set out in the statement of defence. It is 
 sufficient to say :• — •" And by way of set-off [or counterclaim, or 
 both] the defendant repeats the allegations contained in para- 
 graphs 5, 6; 8 and 10 above, and says further, &c." {Birming- 
 ham Estates Co. v. Smith, 13 Ch. D. 506 ; 49 L. J. Ch. 251 ; 
 28 W. R 666 ; 42 L. T. 111.) 
 
 A counterclaim is in the nature of a cross-action commenced 
 at date of writ. Hence no counterclaim arising after action 
 brought can strictly be pleaded without leave, although a de- 
 fence proper can. (Order XX. Per Jessel, M.R., in Original 
 Hartlepool Colliery Co. v. Gibh, 5 Ch. D. 713 ; 46 L. J. Ch. 
 811 ; 36 L.T. 433.) In Ellis v. Munson (C. A.), (35 L. T. 585 ; 
 Weekly Notes, 1876, p. 253), leave had been obtained. Such a 
 counterclaim must, of course be expressly pleaded 'puis darrein 
 continuance. 
 
 Where the defendant is a foreigner residing out of jurisdic- 
 tion, and sets up a counterclaim arising out of the same facts 
 as the plaintiff's claim, the plaintiff will not be entitled to 
 security for the costs of such counterclaim even though its 
 amount exceeds that of his claim. {Mapleson v. Masini, 5 Q. 
 B. D. 144 ; 49 L. J. Q. B. 423 ; 28 W. K 488 ; 42 L. T. 531.) 
 
 Judgment in Default of Pleading. 
 
 The defendant isbound (unless the time is enlarged by a master 
 at chambers, or by consent under Order LVII. r. 6a, R. S. C. 
 April, 1880, r. 42) to deliver his defence within eight days from 
 the delivery of the claim or from the time limited for appearance, 
 whichever is last. (Ord. XIX. r. 2 ; Ord. XXII. r. 1.) Failing 
 his doing so, the plaintiff may enter an interlocutory judgment 
 against the defendant, in default of pleading. A writ of inquiry 
 will then issue to assess the damages, unless tlie judge at 
 chambers order them to be ascertained in another way. But 
 if there be several defendants and one or more make default,
 
 496 PRACTICE AND EVIDENCE. 
 
 the damages against him or those in default must be assessed 
 at the trial of the action against the other defendants, unless a 
 master at chambers shall otherwise direct. (Ord. XXIX. 
 rr. 4, 5). 
 
 But a solicitor should never" snap a judgment," if he has any 
 reason for supposing that the delay in pleading is accidental or 
 unavoidable. {Canada Oil Works v. Hay, W. N. 1878, p. 107.) 
 And even where there has been no unseemly haste in signing 
 judgment, still the judgment will generally be set aside on an 
 affidavit of merits, on the terms that the defendant pay costs 
 occasioned by his default, plead the same day, and, if need be, 
 take short notice of trial. 
 
 Reply, 
 
 The plaintiff on receiving the statement of defence should 
 first see whether any part of it is so objectionable as to entitle 
 him to apply at chambers for an order to amend it, under 
 Order XXVII. rr. 1, G. Paragraphs in the nature of an informal 
 demurrer may be struck out as embarrassing under this rule. 
 {Stol-es V. Grant and others, 4 C. P. D. 25 ; 27 W. R. 397 ; 40 
 L. T. 36.) Then, it may be that his own statement of claim 
 may require amendment : such amendment now takes the place 
 of a "new assignment," Order XIX. r. 14. Next, if the plead- 
 ing is not so bad as to require amendment, particulars may still 
 be demanded. Thus, where the libel imputed that the plaiutiff 
 had infringed defendant's patents, the defendant 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.) But of course parti- 
 culars will only be ordered of such of defendant's words as are 
 material in the present action. {Colonial Assurance Corpora- 
 tion, Limited v. Prosper, Weekly Notes, 1876, p. 55 ; Bitt. 122; 
 20 SoL J. 281 ; 60 L. T. Notes, 250.) 
 
 If no facts be stated in a plea of justification the plaintiff 
 should apply for particular.?, unless the charge itself be specific 
 and precise ; see ante, pp. 485, 6. If the facts stated are insuffi- 
 cient in law to justify the imputation, the defendant should 
 demur, or apply to have the plea struck out or amended. So,
 
 REPLY, 497 
 
 too, a plea of privilege is often demurred to. But the plaintiff 
 should never demur unless he is sure that his own previous 
 pleading is perfectly good in law. For by demurring he submits 
 the whole record to the judgment of the Court, and his counsel, 
 Avho came to attack the defence, may suddenly be called on to 
 defend his own statement of claim, as in Claij v. lloherts, 11 
 W. R. G49 ; 9 Jur. N. S. 580 ; 8 L. T. 397. 
 
 A reply as a rule is a mere joinder of issue in actions of 
 defamation, unless there be a counter-claim. Joinder of issue 
 will operate as a denial of every material allegation of fact in 
 the pleading of the other side, except facts admitted. (Ord. 
 XIX. r. 21.) To a plea of absolute privilege no other reply can 
 be framed which is not demurrable ; (see ^icott v. Stansfeld, L. 
 K 8 Ex. 220 ; 87 L. J. Ex. 155 ; 16 W. R 911 ; IS L. T. 572. 
 Dau'Jdns v. Lord Paulet, L. R. 5 Q. B. 94 ; 89 L. J. Q. B. 53 ; 
 18 W. R. 336 ; 21 L. T. 584). To a plea of qualified privilege 
 a special reply is unnecessary, if malice be alleged in the state- 
 ment of claim. On a plea under s. 2 of Lord Campbell's Act, 
 the plaintiff usually merely joins issue, 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. (Chadiuick v. 
 Hempath, 3 C. B. 885 ; 16 L. J. C. R 104; 4 D. & L. 653; 
 ^mith v. Harrison, 1 F. & F. 565.) To a general plea of pay- 
 ment into Court some j^leaders reply specially that the sum 
 paid in is insufficient ; but a mere joinder of issue will raise tlu 
 question with equal effect. To a justification setting out a con- 
 viction, or to a plea of a previous action, the plaintiff may rejAy 
 specially Kul tiel record ; or if the conviction be erroneously 
 stated in the defence {as in Alexander v. N. E.Ry. Co. 84 L. J. 
 Q. B. 152; 11 Jur. N. S. 619 ; 18 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 on a pardon {Guddington v. 
 Wilkias, Hob. 67, 81 ; 2 Hawk. P. C. c. 37, s. 48), or that he 
 had undergone and completed his sentence, which will have the 
 same effect {Leijman v. Latimer and others, 3 Ex. D. 15, 352 ; 
 46 L. J. Ex. 765 ; 47 L. J. Ex. 470 ; 25 W. R. 751 ; 26 W. R. 305 ; 
 37 L. T. 360, 819 ; 14 Cox, C. C. 51), though I apprehend neither 
 reply would l)c an answer if the words complained of were that the
 
 498 PRACTICE ANh EVIDENCE. 
 
 plaintiff " was convicted of such and such a crime." To a plea 
 of the Statute of Limitations, a plaintiff may specially reply 
 absence beyond seas under the statute of Anne, ante, p. 456. 
 
 To a counterclaim the plaintiff must of course plead as specially 
 as a defendant is compelled to do to a statement of claim. 
 {Benhoiu v. Loiu, 13 Ch. D. 553 ; 49 L. J. Ch. 259 ; 28 W. R. 384 ; 
 42 L. T. 14 ; Greoi v. Sevln, 13 Ch. D. 589 ; 41 L. T. 724.) 
 
 The plaintiff may deliver interrogatories with his reply, see 
 ]DOst, p. 500. The reply must be delivered within three weeks 
 after the defence has been received (Order XXIV. r. 1), unless 
 the time be extended. 
 
 Rejoinder. 
 
 A rejoinder is almost always a mere joinder of issue. If it is 
 not, leave must bo obtained to plead it. (Order XXIV. r. 2.) 
 There is an instance of a special rejoinder, which was held good 
 on demurrer, m Alexander \ . Korth-EasternRalhvay Co., supra. 
 
 A rejoinder must be delivered within four days after the 
 receipt of the reply, unless the time be extended by order of a 
 master at chambers, or by consent. (Order XXIV. r. 3.) 
 
 Amendment of Pleadings. 
 
 The plaintiff' may without leave amend his claim once within 
 the time limited for reply and before reply, or, if no defence 
 has been deli^^ered, then within four weeks from the appearance 
 of the defendant who has last appeared ; and so, also, a defen- 
 dant who has pleaded a set-off or counterclaim may amend 
 the same within the time limited for and before pleading to the 
 reply ; or, if there be no reply, then within twenty-eight days 
 from the filing of his defence. (Order XXVII. rr. 2, 3.) But 
 there is no provision enabling a defendant to amend his defence 
 without leave. Either party may with leave amend his claim, 
 defence, or reply, at any stage of the proceedings. (76. r. 1.) In 
 such case the order to amend, if not acted upon within the time 
 limited therein, or fourteen days from the date thereof, becomes 
 void 'ipfso facto. (Order XXVII. r. 7.) Generally, such leave 
 will be readily granted on payment of costs {Marriott v. 
 Marriott, 20 W. R. 416; Weekly Notes, 1878, p. 57), unless 
 the party applying has been guilty of mala fides, or desires 
 the amendment morel}' in order to raise a technical defence.
 
 AMENDMENT OE PLEADhXGS. 499 
 
 {TlhlesJey v. JTavpcr (C. A.), 10 Cli. D. 393 ; 48 L. J. Ch. 495 ; 
 27 W. H. 249 ; 39 L. T. 552 ; Collette v. Goods, 7 Cb. D. 842 ; 
 47 L. J. Ch. 370 ; 38 L. T. 504.) 
 
 But it is a very different matter wliere one party applies to 
 amend, not his oAvn pleading, but that of the opposite party. 
 No jDarty may dictate to the other how he shall plead ; he must 
 satisfy the master at chambers or district registrar that the 
 passage to Avhich he objects is either scandalous (that is, both 
 offensive and at the same time irrelevant), or that it tends to 
 prejudice, embarrass, or delay the fair trial of the action. Some 
 pleaders appear to be easily embarrassed ; but it is no part of 
 their duty to reform their ojDponent's pleadings. It is also 
 mucli better policy to leave a flagrantly bad specimen of plead- 
 ing unamended, and not to kindly strengthen your adversary's 
 position. Still, if an allegation be really unintelligible or 
 frivolously irrelevant, it should be struck out. {Cashin v, 
 CradocJc, 3 Ch. D. 376 ; 25 W. R. 4 ; 35 L. T. 452 ; Smith 
 and others v. Richardson, 4 C. P. D. 112 ; 48 L. J. C. P. 140; 
 27 W. R. 230 ; 40 L. T. 256.) 
 
 Either party dissatisfied with the order made by the master or 
 district registrar may appeal to a judge by summons returnable 
 Avithin four days (Order LIV. r. 4 ; Gibbons v. London Finan- 
 cial Association, 4 C. P. D. 203 ; 48 L. J. C. P. 514 ; 27 
 W. R. 619). Appeals from any decision of the judge at chambers 
 to the Divisional Court must be made by motion within eight 
 days after the decision appealed against (Order LIV. r. Ga) ; or 
 if no Court sits within the eight days, then on the first day on 
 which any Court sits, to which such application can be made 
 (R. S. C, March, 1879, r. 8; Runtz v. Sheffield (C. A.), 4 Ex. D. 
 150; 48 L. J. Ex. 385; 40 L. T. 539; StiHing v. Du Barry 
 (C. A.), 5 Q. B. D. 05 ; 28 W. R. 404). If the last of the eight 
 days be Sunday, the appellant may make his appeal on the 
 following Monday. {Taylor v. Jones, 1 C. P. D. 87 ; 45 L. J. 
 C. P. 110; 34 L. T. 131; and see Order LVIL r. 3.) Two 
 clear days' notice of motion must be given. (Order LIII. r. 4.) 
 But unless a matter of principle is involved, it is not as a rule 
 desirable to carry an appeal thus far ; for the Court generally 
 refuses to interfere with the discretion of the judge below on 
 any point of pleading. {Goldinrj v. Whadoii Saltworks Co., 
 1 Q. B. D. 374 ; 24 W. R. 423 ; 34 L. T. 474 ; Byrd v. mtnn, 
 
 K K 2
 
 Soo PRACTICE AND EVIDENCE. 
 
 7 Ch. D. 284 ; 47 L. J. Ch. 1 ; 26 W. R. 101 ; 37 L. T. 585 ; 
 Hugcjons v. Tweed, 10 Ch. D. 359; 27 W. R. 495; 40 L. T. 
 
 284.) 
 
 Where any party has amended without leave, the other may 
 within eight days after the receipt of the amended pleading 
 apply to the judge at chambers to disallow the same (Order 
 XXVII. r. 4), or for leave to plead further or amend his former 
 pleading {ih. r. 5). All amended pleadings must be marked 
 with the date of the amending order (if any), and the day on 
 which such amendment is made {ih. r. 9), and delivered to the 
 other side within the time allowed for amending {ih. r. 10). 
 
 Default ill Pleading. 
 
 The plaintiff must deliver his reply Avithin three weeks after 
 defence delivered. (Order XXIV. r. 1.) All pleadings subsequent 
 to re^oly, must bo delivered Avithin four days after delivery of 
 the jTrevious pleading [[Jj. r. 3). If the plaintiff does not deliver 
 his reply, or either party fails to deliver any subsequent pleading, 
 within the period allowed, the pleadings will at its expiration 
 be deemed closed, and the statements of fact in the pleading- 
 last delivered admitted. (Order XXIX. r. 12.) 
 
 And, therefore, if it be the defendant that is in default, the 
 plaintiff may at once give notice of trial nnder Order XXXVI. 
 r. 3. If, however, it is the plaintiff that is in default, the defen- 
 dant must wait fur six weeks after expiration of the period 
 allowed for pleading, and then either himself give notice of trial 
 under Order XXXVI. r. 4, or apply to a master at chambers to 
 dismiss the action for want of prosecution, under r. 4«, R. S. (/. 
 June, 1876, r. 13 {Litton v. Litton, 3 Ch. D. 793 ; 24 W. R. 
 962). 
 
 I ]der rogatories. 
 
 Interrogatories are now delivered almost as a matter of course 
 in every action of libel or slander where there is any dispute as 
 to the facts. Formerly leave was required to exhibit interroga- 
 tories, but now they are delivered as of right. They are generally 
 administered by the party on whom Avill lie the main burden of 
 proof at the trial, but often there are cross interrogatories. 
 
 The jjlaintiff cannot administer interrogatories without leave, 
 before the statement of defence is delivered, in spite of the
 
 INTERROGATORIES. 501 
 
 express words of Order XXX. r. 1 ; for the defendant may 
 admit in his pleading the very matters on which it is proposed 
 to interrogate him. {Merciev v. Cotton, 1 Q. B. D. 442 ; 46 
 L. J. Q. B. 184 ; 24 W. R. 566 ; 35 L. T. 79.) So, too, the 
 defendant as a rule cannot interrogate the plaintiff before de- 
 livering his statement of defence. {Disney v. Longhourne, 2 
 Ch. D. 704 ; 45 L. J. Ch. 532 ; 24 W. K 663 ; 35 L. T. 301.) 
 But between the date of delivery of the statement of defence 
 and the close of the pleadings either party may deliver in- 
 terrogatories without leave. 
 
 After the close of the pleadings, or before the delivery of the 
 statement of defence, leave must be obtained to administer 
 interrogatories, and good cause must be shown on affidavit for 
 the application. (Anon. 1 Charley, 100 ; Bitt. 4 ; 20 Sol. J. 
 32; GO L. T. Notes 32; Hawlcy v. Reade, Weekly Notes, 
 1876, p. 64 ; Bitt. 130 ; 20 Sol. J. 298 ; 60 L. T. Notes, 268 ; 
 Ellis v. Amhler, 25 W. R. 557 ; 36 L. T. 410.) A plaintiff has 
 been allowed to administer interrogatories before statement of 
 claim in order to ascertain the exact words of a libel or slander. 
 So, too, leave has in a special case been obtained for the delivery 
 of a second set of interrogatories, where the pleadings have been 
 amended since the first set was delivered, and such amendments 
 involved fresh facts. Leave is also necessary to administer in- 
 terrogatories to a corporation when a party to an action ; but it 
 is almost always granted as a matter of course. The party in- 
 terrogating is entitled to select any officer of the corporation or 
 company to answer. Such officer need not and should not be 
 made a party to the suit. (C. L. P. Act, 1854 (17 & 18 Vict. 
 c. 125), s. 51 ; Cooke v. Oceanic Steam Co., Weekly Notes, 1875, 
 p. 220 ; Bitt. 33 ; 20 Sol. J. 80 ; 60 L. T. Notes, 68 ; Wilson v. 
 Church, 9 Ch. D. 552 ; 26 W. R 735 ; 39 L. T. 413.) If there be 
 no officer of the company capable of giving them the information 
 required, then, but not else, the party interrogating is entitled to 
 name some ordinary member of the company, who is acquainted 
 with the facts, who shall answer the interrogatories ; nor can 
 such member refuse to file his affidavit in answer until he has 
 been paid his taxed costs of answering it. (Berkeley v. Standard 
 Discount Co. (C. A.), 13 Ch. D. 97 ; 49 L. J. Ch. 1 ; 28 W. R. 
 125 ; 41 L. T. 374, reversing the decision of Fry, J., below ; 
 12 Ch. D. 295 ; 48 L. J. Ch. 797 ; 27 W. R. 852 ; 41 L. T. 29.)
 
 502 PRACTICE AXD EVIDENCE. 
 
 Very often, however, the party interrogating leaves it to the 
 company to select the person who shall answer the interroga- 
 tories, in which case the company must select someone con- 
 versant with the facts and capable of answering fully and freely. 
 {Rejyuhlic of Costa Rica v. Erlangcr, 1 Ch. D. 171 ; 45 L. J. 
 Ch. 145 ; 24 W. R. 151 ; 1 Charley 111.) If a corporation elects 
 to answer by an officer who is also their solicitor in the action, 
 they lose the privilege attaching to information acquired by the 
 solicitor for the purposes of the action. {Mayor, &c., of Siuansca 
 V. Quirk 5 C. P. D. 106; 49 L. J. C. P. 157; 28 W. K 371 ; 
 41 L. T. 758.) The propriety of the interrogatories proposed 
 to be administered cannot be discussed at this stage. {Berkeley 
 V. Standard Discount Co. (Malins, V.C), 9 Ch. D. 643 ; 26 
 W. R. 852 ; overruling the decision of Lush, J., at chambers in 
 Heiuetson v. Whitiingtoii Life Insurance Soc., Weekly Notes 
 for 1875, p. 219 ; 1 Charley, 101 ; Bitt. 27; 20 Sol. J. 79; 60 
 L. T. Notes, 67.) 
 
 There is some art }-cquircd in drawing interrogatories. It con- 
 sists chiefly in looking rather at the answer you may reasonably 
 expect to obtain than at the answer which you are instructed 
 ought to be given to the question you are putting. The de- 
 fendant's version of the matter must differ from the plaintiff's 
 version, and the object of interrogatories 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 jjossible the 
 answer you desire ; and at the same time, failing that answer, 
 to get, at all events, some definite statement sworn to, from 
 which the i^arty interrogated cannot afterwards diverge. Care 
 should be taken to leave him no loo]3hole 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. Thus if you are instructed that the plaintiff 
 gave evidence in the Bankruptcy Court, in the presence of a 
 Mr. Henderson, that a certain cheque was in the handwriting 
 of the defendant, it will be of little use to ask merely : "Did you 
 not state on oath, in the Bankruptcy Court, in the presence of 
 J. Henderson, that the said cheque was in the defendant's 
 handwriting ? " as the plaintiff will simply answer " No."
 
 INTERROGA TORIES. 503 
 
 Nor will it avail to add to the above question the Chancery 
 phrase, "Or, how otherwise ?" The only way to discover pre- 
 cisely what it is the plaintiff denies is to split the question 
 np into several — " Were you not examined as a witness in the 
 Bankruptcy Court on the 15th of May, 1880, or some other 
 and what day ? Was not a cheque then and there produced 
 to you ? Did you not state that such cheque was in the 
 handwriting of the defendant ? If nay, in whose handwriting 
 did you state the said cheque to be % Was not the said cheque 
 the one mentioned in Paragra^Dh 4 of the Statement of Claim, 
 or some other, and what cheque ? Did you not state so on 
 oath ? Did you not state so in the presence of one John 
 Henderson ? " 
 
 Interrogatories should be put so that the party interro- 
 gated can answer "Yes" and "No" to them. {Fev Archi- 
 bald, J., in Armitctge v. Fitzwilliam and oiliers, Weekly 
 Notes, 1876, p. 56 ; Bitt. 126 ; 20 Sol. J. 281 ; GO L. T. Notes, 
 251.) 
 
 Great care is necessary in applying former decisions as to 
 interrogatories to the present practice. Before the Judicature 
 Act special leave was required to administer interrogatories, 
 and the judge might in every case exercise his discretion as to 
 allowing them. Now either party has a right to administer 
 them, subject only to this — that if he exhibits interrogatories 
 unreasonably, vexatiously, or at improper length, he may have 
 to pay the costs of them. (Order XXXI. r. 2.) Then between 
 November 1st, 1875, and November 18th, 1878, the party in- 
 terrogated 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 jyof^t, p. 509.) 
 
 In actions of slander 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. 787 ; 82 L. J. C. P. 268.) 
 In fact, there is only one instance reported of such interroga- 
 tories being allowed before the Judicature Act, and in that case 
 (Atkinson v. Fosh, voice, L. R. 1 Q. B. 628 ; 85 L. J. Q. B. 182 ; 
 12 Jur. N. S. 810 ; 14 W. R. 832 ; 14 L. T. 553) the plaintift^ 
 had exhausted every other channel of inquiry, and was unable 
 to discover what were the exact words the defendant had uttered.
 
 504 PRACTICE AND EVIDENCE. 
 
 But now no leave is required, and the plaintiff administers 
 interrogatories as of right in slander as in any other action ; and 
 the defendant answers them without demur. 
 
 But with libel it is different ; for libel is a crime. To ask, 
 therefore, Avhether the defendant had any share in writing, 
 printing, or composing the alleged libel, or was the editor of 
 the newspaper at the date of publication, has a direct tendency 
 to criminate the defendant, who may, therefore, refuse to answer 
 such questions. But this alone does not satisfy him. To 
 refuse to answer on the express ground that to answer might 
 criminate him is tantamount to a confession of criminality; 
 and the defendant's endeavour, therefore, has always been to 
 prevent such a question being put to him. In oral examina- 
 tion it is well known that the "witness cannot object to such 
 questions being asked ; he can only decline to answer ; and to 
 do that he must take his objection on oath, stating in open 
 Court that in his opinion the answer would tend to criminate 
 him. {BoyU v. ^Viseman, 10 Ex. 647; 24 L. J. Ex. 160 ; 24 
 L. T. (Old S.) 274 ; 25 L. T. (Old S.) 203.) But in the days 
 when interrogatories were still a novelty, when leave to exhibit 
 them was only granted as a favour, it was thought unfair to the 
 defendant to permit a string of questions to be asked him 
 which it was clear he was not bound to answer {Tupling v. 
 ^Yard, 6 H. & N. 749 ; 30 L. J. Ex. 222 ; 7 Jur. N. S. 314 ; 9 
 AV. R. 482 ; 4 L. T. 20 ; Baler v. Lane, 3 H. & C. 544 ; 34 L. 
 J. Ex. 57 ; Edmunds v. Greemvood, L. R. 4 C. P. 70 ; 88 L. J. 
 C. P. 115 ; 17 W. R. 142 ; 19 I-. T. 428); and it came to be 
 the rule that, in the absence of very special circumstances 
 {Inman v. Jenlins, L. R. 5 C. P. 788 ; 89 L. J. C. P. 258 ; 18 
 W. R. 897 ; 22 L. T. 659 ; Greenfield v. Reai/, L. R. 10 Q. B. 
 217 ; 44 L. J. Q. B. 81 ; 23 W. R. 782 ; 81 L. T. 756), ques- 
 tions which on the face of them tended to criminate could not 
 be asked (VlUehoisnet v. Tohin and others, L. R. 4 C. P. 184; 38 
 L. J. C. P. 146 ; 17 W. R. 322; 19 L. T. 693) ; that questions 
 not clearly criminatory might be asked, but the defendant 
 might refuse to answer them, if he stated his objection on oath 
 at the time of answering. (Oshorne v. London, BocJc Co., 10 
 Exch. 698 ; 24 L. J. Ex. 140 ; Chesier v. Woriley, 17 C. B. 410 ; 
 25 L. J. C. P. 117; Bartlett v. Leivis, 12 C. B. N. S. 249 ; 31 
 L. J. C. P. 230 ; Bicl-ford v. Darcy and Bearhey, L. R. 1 Ex.
 
 INTERROGA TORIES. 505 
 
 354 ; 14 W. R. 900 ; 14 L. T. 629 ; McFadzen v. Mayor and 
 Coriwratlon of Liverpool, L. R 3 Ex. 279 ; 16 W. R 48.) 
 
 But, thougli this was the rule at Common Law, iu Equity the 
 practice was different. There the distinction between an obvious 
 and a latent tendency to criminate was unknown, though there 
 was a rule against allowing discovery in aid of an action for a 
 mere personal tort. {Glynn v. Houston, 1 Keen, 329.) All 
 questions material to the issue might be asked, and the defen- 
 dant was always compelled to answer them unless he took the 
 objection on oath in his answer. And this is now the practice 
 in all the divisions ; for by sub-s. 11 of s. 25 of the Judicature 
 Act, 1873, whenever there is a variance between the practice at 
 Common Law and at llquity, the rules of Equity shall prevail. 
 [Fisher V. Owen (C. A.), 8 Ch. D. 045 ; 47 L. J. Ch. 477, 
 081 ; 20 W. R 417, 581 ; 38 L. T. 252, 577 ; Allhusen v. 
 Lahouchere (C. A.), 3 Q. B. D. 054 ; 47 L. J. Ch. 819 ; 27 W. R 
 12 ; 39 L. T. 207.) In an earlier case (Atherley v. Harvey, 2 
 Q. B. D. 524 ; 40 L. J. Q. B. 518 ; 25 W. R. 727 ; 30 L. T. 
 551), the Queen's Bench Division, it is clear, desired and in- 
 tended to follow the Chancery rule, but were misled as to what 
 precisely was the practice in Equity. (See the remarks of 
 Cotton, L.J., in Fisher v, Owen, 8 Ch. D. 654.) It is now, 
 therefore, clear that relevant interrogatories cannot be set aside 
 merely because they tend to criminate ; the party interrogated 
 must take the objection on oath in his affidavit in answer. (See 
 also ^Yehh v. East (C. A.), 5 Ex. D. 23, 108 ; 49 L. J. Ex. 250 ; 
 28 W. R 229, 330 ; 41 L. T. 715.) 
 
 The fusion of Law and Equity appears also to have done 
 away with another distinction as to what questions could be 
 asked and what not. It was formerly a rule, well recognised at 
 Common Law, that interrogatories must be confined to matters 
 which relate to the case of the party administering them, and 
 must not extend to matters which relate exclusively to the case 
 of the opposite party ; though questions might be asked as to 
 any matter common to the case of both parties. {Per Lord 
 Campbell, C.J., in Careio v. Davies, 5 E. & B. 709 ; 25 L. J. Q. 
 B. 165 ; and ^^er Cockburn, C.J., in Moor v. Roberts, 3 C. B. 
 N. S. 071 ; 20 L. J. C. R 246.) The rule was formerly precise:— 
 "Put your own case to your opponent by means of interrogatories ; 
 but apply for particulars of his case." But in Cliancery there
 
 5o6 PRACTICE AND EVIDENCE. 
 
 was nothing correspouding- to particulars. {Augustinus v. 
 J^erhickx (C. A.), Ki Cb. D. 13 ; 43 L. T. 458.) There the only 
 way in which a party coukl ascertain what was the case he had 
 to meet, was hy means of interrogatories. And such information 
 may still be so obtained. (Saunders v. Jones (C. A.), 7 Ch. D. 
 435 ; 47 L. J. Ch. 440 ; 2G W. E,. 226 ; 37 L. T. 395, 7G9.) And 
 in Gay v. Lahouchere, 4 Q. B. D. 20G ; 48 L. J. Q. B. 279 ; 27 
 W. E. 412 ; Cockburn, C.J., asks "Why should not the jDlaintiff 
 have this information by means of interrogatories as well as by 
 particulars ? " and overrules the distinction that the answer to 
 interrogatories is on oath, while particulars are not sworn to, 
 and can be at any time amended. It seems, then, that the 
 Common Law rule is now obsolete, and that instead of it must 
 E;tand the Equity rule : that either party is entitled, by means 
 of interrogatories, to ascertain the facts on which his opponent 
 relies, but not the evidence by which he proposes to prove those 
 facts : Ashley v. Taylor, 37 L. T. 522; (C. A.) 38 L. T. 44 ; 
 Commissioners of Sewers v. Glasse, L. R. 15 Eq. 302 ; 42 L. 
 J. Ch. 345 ; 21 W. R. 520 ; 28 L. T. 433, as explained in 
 Saunders v. Jones, su2:)ra. Thus you are not entitled to see 
 your adversary's brief, or to 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 are 
 the facts upon which your opponent intends to rely. (Eadc 
 and another v. Jacobs (C. A.), 3 Ex. D. 335 ; 47 L. J. Ex. 74 ; 
 20 W. R. 159 ; 37 L. T. G21 ; Johns v. James, 18 Ch. D. 370 ; 
 Lyon V. Tiveddell, ih. 375.) 
 
 One instance which came within the above-mentioned 
 Common Law rule deserves special notice. The defendant could 
 formerly, as now, apply for particulars of the special damage 
 alleged in the declaration ; therefore, it was held he might not 
 interrogate as to it. It was entirely the plaintiff's case. {Pep- 
 piatt and wife v. Smith, 33 L. J. Ex. 239; Jourdainy.Pcdmer, 
 L. R. 1 Ex. 102 ; 35 L. J. Ex. G9 ; 12 Jur. N. S. 214 ; 14 W. R. 
 283 ; 13 L. T. GOO ; overruling Wood v. Jones, 1 F. & F. 301, 
 where Williams, J., refused particulars, but allowed interroga- 
 tories as to the names of the persons to whom a slander was 
 uttered.) But even before the Judicature Act this strictness 
 was abated, and a defendant was allowed to interrogate as to
 
 INTERROGATORIES. 507 
 
 special damage, when his object was to ascertain how much 
 would bo a reasonable sum to pay into Court. [Home v. Hough 
 and others, L. E. 9 C. P. 185 ; 43 L. J. C. P. 70; 22 W. K. 412 ; 
 Wright v. Goodlahe, 34 L. J. Ex. 82.) And now there would 
 appear to be no objection to a defendant's applying fiist for 
 particulars and then interrogating the plaintiff as to those 
 particulars. 
 
 In an action for libel, Davis v. Gray, 30 L. T, 418, interroga- 
 tories were disallowed, the object of which was to establish 
 special malice so as to meet the defence of privilege, should it 
 be set up. But the reason for this decision is not clearly stated 
 in the report. Even then there was no objection to a plaintiff 
 interrogating as to matter of reply : certainly there is none now. 
 
 The following, therefore, are, with some diffidence, suggested 
 as the rules which now in a Common Law action determine what 
 interrogatories may be administered and what not. 
 
 1. Interrogatories must be relevant to the matter in issue. 
 Not every question wdiich could be asked a witness in the box 
 may be put as an interrogatory, {Per Martin, B., in Peppiatt 
 and loife v. Smith, 33 L. J. Ex. 240.) Thus, questions to 
 credit only will not be allowed, although, of course, they may 
 be asked the party in cross-examination. (Baker v. Neivton, 
 Weekly Notes, 187G, p. 8 ; 1 Charley, 107 ; Bitt. 80 ; 20 Sol. J. 177 ; 
 60 L. T. Notes, 157; AUhusen v. 'lahoiwhere (C. A.), 3 Q. B. D. 
 C>U ; 47 L. J. Ch. 819 ; 27 W. E. 12 ; 39 L. T. 207.) Again, 
 no question need be answered Avhicli is not put hond fide for 
 the purposes of the present action. Thus, the publisher of a 
 newspaper must answer the interrogatory: "Was not the passage 
 set out in paragraph 3 of the Statement of Claim intended to 
 apply to the plaintiff? " ; but he need not answer the further 
 question, "If not, say to Avhom ? " as, if the passage did not apply 
 to the plaintiff, it is immaterial to whom it referred, so far as 
 the plaintift^'s action is concerned. {Wiltony. Brignell, Weekly 
 Notes, 1875, p. 239 ; 1 Charley, 105 ; Bitt. dQ ; 20 Sol. J. 121 ; 
 GO L. T. Notes, 104.) For further instances of interrogatories 
 held irrelevant, see Sivier v. Harris, Weekly Notes, 1876, p. 22; 
 Bitt. 98 ; 20 Sol. J. 240 ; 60 L. T. Notes, 213 ; P/w/Z/^^s and 
 another v. Barron and another, Weekly Notes, 1876, p. 54 ; 
 Bitt. 119; 20 Sol. J. 280; 60 L. T. Notes, 249; Mansfield v. 
 Childerhouse, 4 Ch. D. 82 ; 46 L. J. CIj. 30 ; 25 W. E. 68 ; 35
 
 5o8 PRACTICE AND EVIDENCE. 
 
 L. T. 590 ; Shcwanl v. Earl of Lonsdale, 5 C. P. D. 47 ; 28 W. 
 R 324 ; 42 L. T. o4 ; BoMmv v. Young, 42 L. T. G90. 
 
 2. Next, as wo have seen above, the party interrogating may 
 deal with his own case, or -with matters common to the ,case of 
 both parties, in full detail. But he is entitled to obtain an out- 
 line only of matters exclusively relating to the case of the party 
 interrogated, and not the evidence which the party interrogated 
 means to give at the trial in support of his allegations. 
 
 3. 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 interrogating to make out some case. They 
 must be confined to matters which there is good ground for 
 believino- to have occurred. " Fishino " interrogatories are 
 especially objectionable when their object is to get at some- 
 thing which may support a plea of justification. {Gourleij 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 Common Law divisions, 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. 
 (Fitzgibbon v. Greer, Ir. R 9 C. L. 294.) Nor will interroga- 
 tories be allowed, the object of which is to contradict a written 
 document. {Moor v. Roberts, 3 C. B. N. S. 671 ; 26 L. J. C. P. 
 246.) The old question as to documents which formerly con- 
 cluded every set of interrogatories is no longer allowed. {Pitten 
 v. Chatterburg, Weekly Notes, 1875, p. 248; 1 Charley, 106; 
 Bitt. 62; 20 SoL J. 139; 60 L. T. Notes, 122.) Its place is 
 taken by a summons for discovery of documents, sec 2^ost> p. 
 515. 
 
 If, however, the 23arty from whom discovery is sought does 
 not in his affidavit of documents disclose a document which 
 there is good reason for believing was once, at all events, in his 
 possession, then interrogatories may be administered asking him 
 whether he did not receive a particular document from a certain 
 person on a given day ; whether it is not now in his possession 
 or control ; if nay, when did he part with it, and to whom ? 
 Was it ever in his possession or control? (Lcthbritlgev. Civnk, 
 44 L. J. C. P. 38] ; Jones v. Munie Video Gas Co. (C. A.), 5
 
 INTERROGA TORIES. 5 09 
 
 Q. B. D. 55G ; 49 L. J. Q. B. G27 ; 28 W. R. 758 ; 42 L. T. G39.) 
 Aud the interrogatory might continue : " If you state that such 
 document is lost or destroyed, set out tlie contents of the same 
 to the best of your recollection and belief." And see Stein v. 
 Tabor, 81 L. T. 444. 
 
 5. Questions which tend to criminate niay certainly be asked, 
 unless they are either irrelevant or "fishing," though the j)arty 
 interrogated is not bound to answer them. (Per Thesiger, L.J., 
 in Fisher v. Owen, 8 Ch. D. 655.) Tliat the interrogatories 
 ■will tend to criminate others is no objection, if they be put boiid 
 fide for the purposes of the present action. {M'Corqiiodale 
 V. Bell and another, \V. N. 1876, p. :39 ; Bitt. Ill ; 20 Sol. J. 
 260 ; GO L. T. Notes, 232.) That to answer them would expose 
 the party interrogated, or third persons, to civil actions was 
 never an objection. {Tdleij v. Eanton, 25 L. J. C. P. 293.) 
 
 Strlkliuj-uid liderro(jatur'u'S. 
 
 By the Rules of November, 1878, the original Rules 5 and 8 
 of Ord. XXXI. are repealed, and the following rule substi- 
 tuted : — 
 
 0. "Any objection to answering any one or more of several 
 interrogatories on the ground that it or they is or are scandalous or 
 irrelevant, or not bond fide for the purpose of the action, or that 
 the matters inquired into are not sufficiently material at that 
 stage of the action, or on any other ground, may be taken in the 
 affidavit in answer. 
 
 " An application to set aside the interrogatories on tlie ground 
 that they have been exhibited unreasonably or vexatiously, or to 
 strike out any interrogatory or interrogatories on the ground that 
 it or tliey is or are scandalous, may be made at chambers within 
 four days after service of the interrogatories." 
 
 This rule came into operation on November 18th, 1878. 
 
 It will be observed that the words of the first clause are 
 "may be" oidy, but the judicial interpretation of the rule, 
 founded no doubt on i^ractical convenience, is that such objec- 
 tions must be taken in the affidavit in answer and not other- 
 wise ; and that it is only in cases within the second clause 
 of the rule, that an application may bo made to strike out the 
 interrogatories. {Gay v. Labouclcere, 4 Q. B. D. 206 ; 48 L. J. Q.
 
 5IO PRACTICE AND EVIDENCE. 
 
 B. 279 ; 27 W. R. 413.) The present practice, therefore, is to 
 dismiss every summons to strike out interrogatories, unless they 
 are, as a whole, " unreasonably or vexatiously exhibited," or unless 
 any one or more of them is or arc " scandalous." All objections 
 to particular interrogatories, or portions of interrogatories, on the 
 ground that they are irrelevant, or "fishing," &c., must be taken 
 in the affidavit ia answer, and is no ground for any application to 
 set the interrogatories aside. And both the phrases "unreasonable 
 or vexatious" and "scandalous" have special meanings. Masters 
 at chambers, following the dictum of Pollock, B., in Gcaj v. 
 Labouchere, 4 Q. B. D. 207, construe "unreasonable or vexa- 
 tious " as referring to the time or stage in the cause at which 
 they are exhibited; in short, that they are "premature" (see 
 Mercier v. Cuttun, 1 Q. B. D. 442 ; 46 L. J. Q. B. 184 ; ^4 W. 
 Pv. oGQ; 35 L. T. 70), or that leave has not been obtained to 
 administer them when leave is requisite. For instances in 
 which searching interrogatories were considered in Chancery not 
 to be " unreasonable or vexatious " prior to the publication of 
 this order, see Reade v. Woodrofe, 24 Beav. 421 ; Elmer v. 
 Creasy, L. R. 9 Ch. G9 ; Saidl v. Browne, ib. 364 ; West of 
 England and South Wales Bank v. Nicholls, 6 Ch. D. 613. The 
 mere fact that it would involve great expense and trouble to 
 answer the interrogatories, Avas never considered in itself asuffi- 
 ci(mt reason for disallowing them. (Macintosh v. G. W. Ry. Co., 
 22 L. J. Ch. 72 ; Hall v. L. & N. W. Ry. Co., 35 L. T. 848.) 
 
 A " scandalous" interrogatory may be defined as an insulting 
 or degrading question, which is irrelevant or impertinent to 
 the matters in issue. It was a well-known term in Chancery, 
 and is adopted by the framers of the Rules. " It is the 
 doctrine in Chancery that nothing is scandalous that is strictly 
 relevant to the merits." (Sidney Smith's Chancery Practice, 
 878 ; 25 L. J. C. P. 197.) " 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 scan- 
 dalous, unless they are either irrelevant or "fishing" (All- 
 husen 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 ; the 
 party interrogated must take the objection on oath in his 
 answer. 
 
 And even where the party might have applied to have the
 
 IXTERROGATORIES. 511 
 
 interrogatory struck out, he may still take the same objection in 
 his answer. {FUiCv v. Ov:on, 8 Ch. D. 645 ; 47 L. J. Ch. 477 ; 26 
 W. R. 417, 581 ; 38 L. T. 252, 577.) Applications to strike out 
 particular interrogatories will, therefore, in future be rare. But 
 whenever there is a good objection to the whole set of interro- 
 gatories, the proper course is to take out a summons to strike 
 them out : e.g., on the ground that they have been administered to 
 a corporation without leave. {Garter v. Leeds Daily News Co., 
 Weekly Notes, 1876, p. 11 ; 1 Charley, 101 ; Bitt. 91 ; 20 Sol. 
 J. 218 ; 60 L. T. Notes, 196.) The party applying to strike out 
 interrogatories must, unless they are altogether an abuse of the 
 practice of the Court, specify those to which he objects. 
 {AUhusen v. Lahouchere (C. A.), sujmt.) 
 
 Ansiuers to Interrofjatories. 
 
 An affidavit in answer to interrogatories must bo filed within 
 ten days after their deliver}'-, unless a master or district registrar 
 allow further time. The answer is now very frequently drawn 
 by counsel. It must be written or printed bookwise, and filed 
 at the Central Office, with a note appended, showing on whose 
 behalf it is filed. (See Order XXXVII. rr. 8 a, h, c, d, e,f,g; 
 R. S. C, April, 1880, rr. 12—18.) 
 
 Any party may use, in evidence at the trial, any one or more 
 of the answers of the opposite party without putting in the 
 whole, but the judge may ilirect any others to be put in. 
 (Order XXXI. r. 23.) 
 
 The affidavit in answer to interrogatories, like all other 
 affidavits, should be made in the first person, and should state 
 the description and true place of abode of the deponent. It 
 should be divided into paragraphs numbered consecutively. 
 One paragraph should Ije devoted to each interrogatory, dealing 
 with it specifically. It is quite admissible to answer " Yes " or 
 '•'No" simply, only the deponent should carefully define how 
 much he is thus admitting or denying. So, too, it is quite 
 admissible to say " I do not know," where the matter is 
 clearly not within tlie deponent's own knowledge. The de- 
 ponent is not bound to procure information for the purpose of 
 answering. (Per Brett, J., in Phillips v. llouth, L. R. 7 C. P. 
 287.) But if the deponent has received any infornuition on
 
 512 PRACTICE AND EVIDENCE. 
 
 the point from others, ho should state it with the prefix "I 
 am informed and believe," and not aver it as a fact. {Tlte 
 Minnehaha, L. R. 3 A. & E. 148 ; 19 W. R. 304- ; 23 L. T. 
 747.) As to a corporation, see ante, p. 501. If the affidavit 
 exceed ten folios, it must be printed. (Order XXXI. r. 7.) 
 
 Any objection to answering any interrogatory on the ground 
 that it is scandalous or irrelevant, or not bond fide for the 
 purpose of the action, or that the matters inquired into are not 
 sufficiently material at that stage of the action, or on any other 
 ground ejusdem generis, must be taken in the affidavit in 
 answer. (Order XXXI. r. 5, K S. C. Nov., 1878; Gay v. 
 Lahouckere, 4 Q. B. D. 206; 48 L. J. Q. B. 279; 27 W. R. 
 413.) 
 
 Any other objection which might be ground for striking out 
 the interrogatory may also be taken in the affidavit in answer. 
 The party, by not applying at chambers, in no way waives the 
 objection. The doubt raised as to this point by Baggallay, L.J., 
 in Saunders v. Jones, 7 Ch. D. 43,5 ; 47 L. J. Ch. 440 ; 20 
 W. R. 226 ; 37 L. T. 395, 769, is now definitely overruled by 
 Fisher v. Owen, 8 Ch. D. 645 ; 47 L. J. Ch. 477, 681 ; 26 W. R. 
 417, 581 ; 38 L. T. 252, 577. 
 
 Such objections are usually taken in the following form : — 
 
 1. "I object to answer the 9th and 10th interrogatories on 
 the ground that they are irrelevant and are not put bond fide 
 for the purposes of this action." 
 
 Or the party interrogated may pass over the question 
 altogether, where it is clearly irrelevant. (Church v. Perry, 
 36 L. T. 513.) It is not wise, however, to treat the whole of an 
 interrogatory thus with silent contempt ; but there are often 
 little side questions not going to the main purpose of the inter- 
 rogatory which may be thus passed over if irrelevant. 
 
 2. "I object to name my witnesses." "I object to state the 
 evidence by which I intend to establish the facts set out in 
 paragraphs 4, 5, 6 of my Statement of Defence." 
 
 3. " I object to answer the 5th interrogatory on the ground 
 that it is a fishincj interrogatory, put for the purpose of making 
 out some case under the defendant's plea of justification." 
 
 4. "I object to state the contents of a written document;" 
 or, " The said document when produced will be the best evidence 
 of its own contents."
 
 IXTERROGA TORIES. 5 1 3 
 
 This being an objection of law, it is not essential to expressly 
 state it. [Bmitli v. Berg, 25 W. R. GOG ; 3G L. T. 471.) 
 
 5. "In answer to the 5th iuterrogatoiy, I say that the said 
 interrogatory, if answered, would tend to criminate me ; where- 
 fore I respectfully decline to answer the same ; " or, " where- 
 fore I humbly submit that I am not bound to make any further 
 or other answer to the same." 
 
 This answer (except in one case) is conclusive ; and it is idle 
 for the party interrogating to argue that he does not see how 
 the question can possibly criminate the deponent, if the de- 
 ponent swears positively it will. But by statute an exception 
 has been created. Section 19 of the 6 & 7 Will. IV. c. 76, was 
 re-enacted by the 32 & 33 Vict. c. 24, sched. 2, while other 
 sections were repealed by sched. 1. It therefore remains in 
 force, although subsequently the whole original Act was re- 
 pealed by the 83 & 34 Vict. c. 90. It runs as follows : "If any 
 person shall file any bill in any Court for the discovery of the 
 name of any person concerned as printer, publisher, or pro- 
 prietor of any newspaper, or of any matters relative to the 
 printing or publishing of any newspaper, in order the more 
 effectually to bring or carry on any suit or action for damages 
 alleged to have been sustained by reason of any slanderous or 
 libellous matter contained in any such newspaper respecting 
 such person, it shall not be lawful for the defendant to plead or 
 demur to such bill, but such defendant shall be compellable to 
 make the discovery required ; provided always, that such dis- 
 covery shall not be made use of as evidence or otherwise in any 
 proceeding against the defendant, save only in that proceeding 
 for which the discovery is made." But before the Judicature 
 Act it was held that this section was confined to a bill for dis- 
 covery in equity, and was not incorporated by the C. L. P. Act, 
 1854, so as to apply to interrogatories at Common Law. It 
 followed that if the defendant answered such interrogatories, 
 his answers could have been used against liim in a criminal 
 proceeding. The Court therefore refused to order the defendant 
 to give the required information, he having objected on oath 
 to answer the interrogatories, and this, although by going into 
 E(]uity the i)laintiff could have compelled the defendant to 
 answer. {Boivden v. Allen, 39 L. J. C. P. 217; 18 W. K. G95 ; 
 22 L. T. 342.) 
 
 L L
 
 5 14 PRACTICE AND EVIDENCE. 
 
 Hence a plaintiff was compelled to file a bill for discovery in 
 Equity to obtain this information, a cumbrous and expensive 
 proceeding. There is only one instance reported in which a 
 plaintiff availed himself of the privilege. {Dixon v. Enoch, 
 L. R 13 Eq. 394 ; 41 L. J. Ch. 231 ; 20 W. R. 359 ; 26 L. T. 
 127.) Bat directl}'- the Judicature Act came into operation, 
 every division of the High Court of Justice was empowered to 
 grant all equitable remedies, and to exercise all powers formerly 
 possessed by the Court of Chancery (ss. IG, 24). The principal 
 object of the fusion of law and equity was to avoid all cir- 
 cuity and multiplicity of legal proceedings. Hence as early as 
 November 7th, 1875, Lush, J., in Ramsd&n v. Brearley, 33 
 L. T. 322 ; Weekly Notes, 1875, p. 199 ; 1 Charley, 96 ; Bitt. 
 Addenda ; 20 Sol. J. 30, decided that the following interrogatory 
 was allowable, and could not be struck out : — " Were you, on 
 the 22nd of November, 1874, the printer or publisher, or both, 
 of the Standard newspaper ? " And his lordship decided that 
 the protection accorded by the concluding proviso of the s. 19 of 
 6 & 7 Will. 4, c. 70, would attach to the defendant's answers, 
 which therefore cannot be used against the defendant in any 
 other proceeding. To answer such an interrogatory cannot 
 therefore tend to criminate the defendant. This decision w\as 
 followed by Archibald, J., in Carter v. Leeds Daily Keius Co. 
 and Jackson, Weekly Notes, 1876, p. 11 ; 1 Charley, 101 ; 
 Bitt. 91 ; 20 Sol. J. 218 ; 60 L. T. Notes, 196, 2^ost, p. 620. 
 
 So, too, in Lefroy v. Burnside, 4 L. R. (Ir.) 340 ; 41 L. T. 
 199 ; 14 Cox, C. C. 260, the defendant in an action for libel, 
 the alleged proprietor of a newspaper, was served with interro- 
 gatories by the plaintiff inquiring, inter alia, whether he was 
 not such proprietor. Tliis interrogatory the defendant in his 
 answer declined to answer, on the ground that it might tend to 
 criminate him in certain criminal proceedings which had been 
 cominenced against him by tlic same plaintiff, and were then 
 actually pending. On summons by the plaintiff to compel 
 further answer to this interrogatory, the Exchequer Division 
 in Ireland held that it must be answered ; inasmuch as s. 19 
 of the 6 & 7 Will. IV., c. 76, was still in force, and was by 
 sect. 24, subs. 7 of the Judicature Act, 1873, made enforceable 
 by interrogatories in an action in a Common Law Division. 
 See post, J). 019.
 
 FURTHER AND BETTER ANSWERS. 515 
 
 But it must be remembered that s. 19 of 6 & 7 Will. IV. c. 76, 
 applies only to the "printer, publisher, or proprietor" of a 
 newspaper. A defendant may therefore object on the ground 
 of criminality to answer any interrogatory asking whether he is 
 the editor of the paper {Carter v. Leeds Bally Neivs & Jackson, 
 supvd), or whether he is the author of the alleged libel {Wilton 
 V. Brignell, Weekly Notes, 1875, p. 239 ; 1 Charley, 105 ; Bitt. 
 56 ; 20 Sol. J. 121 ; 60 L. T. Notes, 104-. And see M'Loughlin 
 v.Dunjer {!), Ir. R. 9 C. L. 170.) 
 
 Further and Better Answei's. 
 
 If the answers are insufficient or evasive, a summons should 
 be taken out calling on the deponent to show cause why he 
 should not within two days make and file a further and better 
 affidavit in answer. The summons should specify the interro- 
 gatories or parts of interrogatories to which a better answer is 
 required. {Church v. Berry, 36 L. T. 513 ; Chesterfield Colliery 
 Co. V. Black, 24 W. E. 783 ; Weekly Notes, 1876, p. 204 ; 
 Anstey v. K & S. Woohuich Subway Co., 11 Ch. D. 439 ; 48 
 L. J. Ch. 776 ; 27 W. R. 575 ; 40 L. T. 393.) And it should be 
 taken out promptly, within a reasonable time after the answers 
 are delivered. {Lloyd v. Morley, 5 L. R. (Ir.) 74.) The summons 
 may ask in the alternative that the deponent be examined vivd 
 voce before a Master. (Order XXXI. r. 10.) Should the 
 deponent have taken the objection that lie is asked as to the 
 contents of a written document, the party interrogating may 
 set out on affidavit facts showing a strong probability that 
 the document has been lost or destroyed ; and then on the 
 liearing of a summons for better answers, the judge may order 
 tlic deponent to state his recollection of its contents, on his 
 opponent undertaking not to use such ansAver at the trial until 
 the judge shall be satisfied that it was in fact lost or destroyed. 
 {Wolverhampton Keio Wateru'orks Co. v. Ilawksfurd, 5 C. B. 
 N. S. 703 ; 28 L. J. C. P. 198.) 
 
 Discovery of Documents. 
 
 Either part}^ may, under Order XXXI. r. 12, without filing 
 any affidavit, or naming any particular document (Bitt. 44), 
 
 h h 2
 
 Si6 PRACTICE AND EVIDENCE. 
 
 apply by summons to a Master at Chambers for an order direct- 
 ing any other party to the action to make discovery on oath of 
 the documents which are or have been in his possession or 
 power, relating to any matter in'question in the action, or stating 
 what he knows as to the custody they or any of them are in. 
 
 A Master at Chambers may at any time during the pendency 
 of any action or proceeding, order the production by any party 
 thereto on oath of such of the documents in his possession or 
 power relating to any matter in question in such action or pro- 
 ceeding, as the master shall think right ; and may deal with 
 such documents when produced in such manner as shall appear 
 just. (Ih. r. 11.) Except under special circumstances, which 
 must be set out on affidavit if they exist {Union Bank of 
 London v. Manhjj, 13 Ch. D. 231) ; 40 L. J. Ch. 106 ; 28 W. E. 
 23 ; 41 L. T. 393), the jjlaintiff cannot have discovery until he 
 has delivered his claim. (CdsJiln v. C'radock, 2 Ch. D. 140; 25 
 W. R. 4 ; 34 L. T. 52 ; Davis v. WiUiam.% 13 Ch. D. 550 ; 
 28 W. R. 223.) Nor can the defendant until he has delivered 
 his statement of defence. {IlancocJc v. Guerin, 4 Ex. D. 3 ; 
 27 W. R. 112; Egremont Burial Board v. Egremont Iron 
 Ore Co., 14 Ch. D. 158 ; 49 L. J. Ch. 623 ; 28 W. R. 594 ; 42 
 L. T. 179 ; Webster v. WUeivall, 15 Ch. D. 120; 49 L. J. Ch. 
 704; 28 W. R. 951 ; 42 L. T. SG8.) 
 
 The Courts of Common Law used formerly, when discovery 
 was only granted as a favour, to refuse to assist a defendant to 
 obtain evidence in support of a plea of justification, on the 
 ground that he should not have published the charge till he 
 was in a position to prove its truth. Thus where a shareholder 
 in a joint-stock company published and justified a libel im- 
 jDuting insolvency to the company, he was held to be not entitled 
 to inspect the books of the company. {Metropolitan Saloon 
 Omnibus Co. v. HaivJdns, 4 H. & N. 87, 146 ; 23 L. J. Ex. 201 ; 
 5 Jur. N. S. 226 ; 7 W. R. 265 ; 32 L. T. (Old. S.) 281.) But 
 in ec^uity it appears that a defendant, in an action of libel was 
 allowed precisely the same discovery as a defendant in any 
 other suit, and that although he had pleaded a justification. Per 
 Sir John Leach, V.C, in Thorpe v. 2Iacaidag, 5 Madd. 230 ; 
 and see Hare on Discovery, p. 116. And now the Chancery 
 rules govern discovery in all Divisions. {Anderson v. Bank of 
 British Columbia, (C. A.) 2 Ch. D. 644 ; 45 L. J. Ch. 449 
 
 I
 
 DISCOVERY OF DOCUMENTS. 517 
 
 24 W. R. 724 ; 35 L. T. 70.) But it may still be questioned 
 whether such discovery should be allowed till after full par- 
 ticulars of such justification have been delivered. A plaintiff 
 was always allowed discovery and inspection of all docunicuts in 
 the possession of the defendant which would hel]) him to rebut 
 the justification. {Collins v. Yates and another, 27 L. J. 
 Ex. 150). 
 
 The i^arty against whom the order for discovery is made must 
 make an affidavit, describing- all the documents material to the 
 matters in dispute, which are, or Juive been, in his possession, with 
 sufficient particularity to identify them. (1 Charley, 109.) He must 
 also specify which, if any, he objects to produce (Order XXXI. 
 r. 13), and on what grounds he so objects. {Gardner v. Irwin, 
 4 Ex. D. 49 ; 48 L. J. Ex. 223 ; 27 W. R. 442 ; 40 L. T. 357.) 
 " Everything which will throw light on the case is jyrimd 
 facie subject to inspection." {Per Blackburn, J., in Hutchinson 
 V. Glovev, 1 Q. B. D. 141 ; 45 L. J. Q. B. 120 ; 24 W. R. 185 ; 
 33 L. T. 005, 834.) Every material document must be produced, 
 unless the party objecting to i^roduce it can show it to be 
 privileged : the party seeking discovery has a right to its pro- 
 duction ; the matter is not in the discretion of the Master or 
 Judge. {Bustros v. White, {C. A.) 1 Q, B. D. 423 ; 45 L. J. Q. B. 
 042 ; 24 W. R. 721 ; 34 L. T. 835.) What documents are 
 privileged from production will be decided by the rules formerly 
 prevailing in the Court of Chancery. (Judicature Act, 1873, 
 s. 25, subs. 11 ; Anderson v. Banh of British Columbia, (C. A.) 
 2 Ch. D. 044 ; 45 L. J. Ch. 449 ; 24 W. R. 024 ; 35 L. T. 70.) 
 There are four possible grounds on which production may be 
 refused : 
 
 (1.) That the documents required to be produced relate solely 
 to the party's own title to real property. As to this, see Lake 
 and another v. Pooley, Weekly Notes, 1870, p. 54 ; Bitt. 121, 
 20 Sol. J. 280 ; 00 L. T. Notes, 250 ; Neiu British Co. v. Peed, 
 Weekly Notes, 1878, p. 52 ; 20 W. R. 354 ; Fovtescue v. For- 
 iescue, 24 W. R. 945 ; 34 L. T. 847 ; Ef/remont Burial Board 
 V. Egremont Iron Ore Co., 14 Ch. D. 158; 49 L. J. Ch. 023: 
 28 W. R. 594 ; 42 L. T. 179. 
 
 (2.) That the documents were prepared with a view to the 
 present action, and were called into existence solely for the 
 purposes of the party's own case. Thus counsel's opinion, all
 
 5i8 PRACTICE AND EVIDENCE. 
 
 briefs, draft 2:)lcaclings, &c., arc iDriviloged, but not counsel's 
 endorsement on the outside of his brief. {Walshmn v. Stainton, 
 
 2 H. & M. 1 ; 12 W. R 199 ; XichoU v. Jones, 2 H. & M. 588 ; 
 
 13 W. E.. 451.) So are all papers prepared by any agent of the 
 party for the use of his solicitor for the purposes of the action, 
 provided such action be then commenced, or at least imminent. 
 {M'Corqnochde and another v. Bell and another, 1 C. P. D. 
 471 ; 45 L. J. C. P. 329 ; 24 W. R. 399 ; 35 L. T. 2G1 ; English 
 V. Tottie, 1 Q. B. D. 141 ; 45 L. J. Q. B. 138 ; 24 W. R. 393 ; 
 33 L. T. 724 ; Southiuark and Vauxhall Water Co. v. Quick, 
 
 3 Q. B. D. 315 ; 47 L. J. Q. B. 258 ; 26 W. R. 328, 341 ; 38 
 L. T. 28 ; The Theodov Korner, 3 P. D. 162 ; 47 L. J. P. & M. 85 ; 
 38 L. T. 818; Martin v. Bidchard, 36 L. T. 732; Friend v. 
 London, Chatham, and Dover Railway Co., (C. A.) 2 Ex. D. 
 437 ; 46 L. J. Ex. 696 ; 25 W. R. 735 ; 36 L. T. 739.) But 
 discovery may be had of proceedings in a former suit relating 
 to the same subject-matter. (Richards v. Morgan, 4 B. & S. 
 641 ; 33 L. J. Q. B. 114 ; 12 W. R. 162 ; 9 L. T. 662 ; Hutchin- 
 son V. Glover, 1 Q. B. D. 138 ; 45 L. J. Q. B. 120; 24 W. R. 
 185; S3 L. T. 605.) No jarivilege can be claimed for private 
 letters written to the party by a stranger to the suit, even though 
 they are expressed to be written in confidence, and the writer 
 forbids their production. [Hophinson v. Lord Burghley, L. R. 
 2 Ch. 447 ; 36 L. J. Ch. 504 : 15 W. R. 543 ; Blade v. Tucker, 
 
 14 Ch. D. 824 ; 49 L. J. Ch. 644 ; 28 W. R. 807 ; 43 L. T. 49.) 
 That letters are privileged in the special sense in Avhich that term 
 is used in actions of defamation {i.e., that the occasion on which 
 they were written renders them not actionable imless the 
 plaintiff can prove express malice) is no ground for refusing 
 to produce them : they are not privileged from inspection 
 {^Yehh \. East, (C. A.) 5 Ex. D. 23, 108; 49 L. J. Ex. 250; 
 28 W. R. 229, 336 ; 41 L. T. 715.) 
 
 (3.) The third ground of jDrivilege is that the documents, if 
 produced, would tend to criminate the party producing them. 
 But this objection (as in the case of interrogatories) can only be 
 taken by the party himself and on oath. Thus, in an action to 
 recover damages for a libel, alleged by the plaintiff to be con- 
 tained in two letters written by the defendant to Lord Rosslyn, 
 the plaintiff administered interrogatories to the defendant, vvlio 
 in his answer admitted that he had written two letters to Lord 
 
 1!
 
 FURTHER AND BETTER AFFIDAVIT. 519 
 
 Rosslyn on specified dates, and that copies of such letters were 
 in his possession. On a summons before the Master for inspec- 
 tion of these copies, an objection was raised by the defendant 
 that such inspection might expose him to criminal proceedings 
 for libel. The Master thereupon refused to order inspection, 
 but Kell}^, C. B., and Stephen, J., subsequently reversed the 
 decision of the Master, and granted an order to inspect. The 
 decision of the Exchequer Division was affirmed in the Court of 
 Appeal, where it was held that if the defendant could protect 
 himself from production at all, it could only be by his oath that 
 the production would expose him to criminal proceedings. 
 {Wchh V. East, siuprd). 
 
 This decision overrules Hill v. Camphdl, L. R. 10 C. P. 222 ; 
 44 L. J. C. P. 1)7 ; 23 W. R. 33G ; 32 L. T. 59 ; a case which 
 was indeed already practically overruled by Fisher v. Oiven, 
 (C. A.) 8 Ch. D. 645 ; 47 L. J. Ch. 081 ; 2G W. R. 581 ; 38 
 L. T. 252, 577. 
 
 (4.) The fourth excuse is on the ground of public policy and 
 convenience. This can only arise where one party to the suit is 
 officially in possession of State documents of importance. If 
 the defendant be a subordinate officer of a public department 
 sued in his official cajDacity, he cannot claim privilege on the 
 ground of public policy ; production can only be refused on that 
 ground by the head of a department. {Beatson v. Skene, 5 H. 
 & N. 838 ; 29 L. J. Ex. 430 ; G Jur. N. S. 780 ; 2 L. T. 378, 
 2)osf, p. 535.) But if it be shown to the Court that the mind of 
 some responsible person has been brought to bear upon the 
 question, the objection will be upheld. {Kaiti v. Farrer, 37 
 L. T. 4G9 ; W. N. 1877, p. 266.) 
 
 Further and better affidavit. 
 
 An affidavit of documents which omitted the words "and 
 never have had " would be deemed an insufficient compliance 
 with the order, and a further and better affidavit will be 
 ordered. (Wacjstaffe v. Anderson and others, 39 L. T. 332.) 
 So if the affidavit docs not state what the defendant had done 
 with the documents which he admits were formerly in his 
 possession. {Per Lush, J., 1 Charley, 109 ; Bitt. 24 ; 60 L. T. 
 Notes, 66). But if an affidavit of documents be drawn up in 
 proper form, it is as a rule conclusive.
 
 520 PRACTICE AND EVIDENCE. 
 
 No affidavit in reply thereto will be permitted. Applications 
 for a further and better affidavit are discouraged. Still, if it 
 appears from the affidavit of documents itself, or from any 
 admission on the pleadings of the party making it, or from the 
 documents mentioned therein that it is insufficient, a further 
 affidavit will be ordered. (Tfe/s/i Stecnn Colliery Co. v. Gaskell, 
 3G L. T. 352 ; Johnsuu v. Smith, 25 W. R. 539 ; 30 L. T. 741 ; 
 Ajililehy v. Wariiu/, 15 L. J. Notes of Cases (1880), p. 125.) 
 Otherwise if discovery be wrongfully withheld, the party seeking 
 discovery must administer interrogatories. (Jones v. Monte 
 Video Gas Co., (C. A.) 5 Q. B. D. 556 ; 49 L. J. Q. B. G27 ; 
 28 W. R. 758 ; 42 L. T. 639.) 
 
 Inspection of Documents. 
 
 Every party to an action or other proceeding may, at or before 
 tlie hearing, give notice in writing to any other party, in whose 
 i:)leadings or affidavits reference is made to any document, to 
 produce such document for inspection. Such notice should be in 
 Form No. 10, Jud. Act, 1875, App. B. Any party not complying 
 Avith such notice .shall not afterwards put such document in 
 evidence on his behalf in such action, unless he satisfy the 
 Court that it relates only to his own title, he being a defendant, 
 or tliat he had some sufficient cause for not complying with 
 such notice (Order XXXI. r. 14) ; as to which, see Webster v. 
 Wheivall, 15 Ch. D. 120 ; 49 L. J. Ch. 704 ; 28 W. R 951 ; 
 42 L. T. 868. 
 
 The party to whom such notice is given must, within two 
 days from the receipt thereof, if all the documents therein 
 referred to have been set forth by him in his affidavit of docu- 
 ments, or within four days, if any of the documents referred to 
 in such notice have not been set forth by him in siich affidavit, 
 give notice to the party desiring inspection, stating a time 
 Avithin three days from delivery thereof at which the documents, 
 or such of them as he does not object to produce, may be 
 inspected at the office of his solicitor, and stating which (if any) 
 of the documents he objects to produce, and on what ground. 
 (Order XXXI. r. 16). Such counter-notice should be in Form 11, 
 Jud. Act, 1875, App. B. If he omit to give notice of time for in- 
 spection, or object to give inspection, the party desiring it may 
 apply to a Master for an order to inspect documents which it
 
 INSPECTION OF DOCUMENTS. 521 
 
 v/ill be sufficient for liim to serve on the solicitor of the objecting 
 party. {Ih. rr. 17, 21, 22.) If, however, the documents desired 
 to be inspected have not been disclosed or referred to in the 
 affidavits or pleadings of the party against whom the application 
 is made, such application must be founded upon an affidavit 
 showing of what documents inspection is sought, that the party 
 applying is entitled to inspect them, and his belief that they are 
 in the possession or power of the other party. {Ih. r. IS.) 
 
 But the application generally made at this stage is for in- 
 spection of those documents which the party holding them 
 refuses to produce. It is thus that the claim of privilege set up 
 is tested. Very often, on such a summons, the documents are 
 shown to the Judge by consent in order to take his decision 
 after he has read them. Where this is done, no appeal lies 
 from his order. {Bustros v. Wldte, {C. A.) 1 Q. B. D. 423 ; 
 45 L. J. Q. B. G42 ; 24 W. R 721 ; 34 L. T. 835). If this is not 
 done, then the only question is, whether the defendant has in 
 his affidavit said enough about the documents in dispute to 
 entitle him to refuse production. {Per Lindley, J., in Katn v, 
 Farrer, 37 L. T. 471 ; W. N. 1877, p. 266.) 
 
 Any description is sufficient which identifies the documents 
 sufficiently to enable the Court to enforce production, if it 
 should see fit to order it. [Taylor v. Batten, (C. A.) 4 Q. B. D. 
 85 ; 48 L. J. Q. B. 72 ; 27 W. E. 106 ; 39 L. T. 408.) 
 
 AVhen inspection is obtained, the party seeking discovery, 
 or his solicitor, attends at the time named and examines the 
 documents. He may take copies of them himself, but the 
 usual course is to bespeak copies of the more important ones. 
 Such copies are of course paid for by tlie party bespeaking 
 them. In a proper case (as when the chief question in dispute 
 i.s. In whose handwriting is the libel?), the Master will order 
 the party in possession of the libel to permit his opponent to 
 take photographic or facsimile copies thereof, of course at his 
 own expense. {Davey v. Pemherton, 11 C. B. N. S. 628.) 
 
 Formerly all applications relating to interrogatories or to 
 discovery and inspection of documents were made to a Judge at 
 chambers, unless both parties agreed to their being decided by a 
 Master. (Order XXXI. r. 18, Order LIV. r. 2.) But now by 
 the Rules of November, 1878, all such applications must be 
 made in the first instance to a Master.
 
 522 PRACTICE AND EVIDENCE. 
 
 Default in maJdng Discovery. 
 
 Any party failing to answer interrogatories or to discover or 
 allow inspection ul' documents as ordered, is liable to attach- 
 ment ; and, if a plaintiff, to have his action dismissed for want of 
 prosecution ; and, if a defendant, to have his defence, if any, 
 struck out, and to Le placed in the same position as if he had 
 not defended. (Ord. XXXI. r. 20.) This highly penal pro- 
 vision will only be exercised in the last resort, and, it seems, 
 will not be enforced when the parties really intend to answer. 
 {Per Lush, J., in Tirycross v. Grant, Weekly Notes, 1875, pp. 201, 
 229 ; 1 Charley, 114, 11 5 ; Bitt. 10,38 ; 20 Sol. J. 54, 97 ; 00 L. T. 
 Notes, 49, 84 ; Fisher v. Hughes, 25 W. R. 528.) And before any 
 application of this kind, the other party must have obtained a 
 peremptory order for such discovery within a time fixed. If the 
 Master makes an order dismissing an action for want of prosecu- 
 tion imlcss an affidavit in answer to interrogatories be filed by a 
 certain date ; then if no such affidavit be filed, the action is at 
 an end. (Whistler v. Hcmcocl; 3 Q. B. D. 83 ; 45 L. J. Q. B. 
 4G0 ; 24 W. R. 640 ; 84 L. T. G82 ; Wallis v. Hepburn, 8 Q. 
 B. D. 84 n. ; King v. Davenport, 4 Q. B. D. 402 ; 48 L. J. Q. B. 
 606 ; 27 W. R. 798.) But it seems that a Master or Judge still 
 has power to enlarge the time for appealing against the Master's 
 order dismissing the action {Burke v. Rooney, 4 C. P. D, 226 ; 
 48 L. J. C. P. 001 ; 27 W. R. 915 ; Wallingford v. Mutual 
 Society, (H. L.) 5 App. Cas. 685 ; 50 L. J. C. P. 49 ; 43 L. T. 
 258) ; and then an order may be made enlarging the time for 
 delivering the interrogatories. {Carter v. Stuhhs, (C. A.) 50 
 L. J. C. P. 4 ; 29 W. R. 132; W. N. 1880, p. 183.) Though 
 such power will only be exercised in very special circumstances. 
 
 Notice of Trial ; Entry for Trial. 
 
 Directly either party has joined issue, simply, without adding 
 any further or other pleading, the pleadings will be deemed 
 closed (Order XXV.) ; though if it appear to a Judge that the 
 issues of fact in dispute are not sufficiently defined, he may 
 direct the parties to prepare issues ; in case of difference to be 
 settled by himself. (Order XXVI.) 
 
 The parties being thus fairly at issue, the plaintiff should
 
 ENTRY FOR TRIAL. 523 
 
 give notice of trial. If lie neglects to give such notice within 
 six weeks after close of pleadings, the defendant may either 
 himself give notice of trial (Order XXXVI. r. 4), or may apply 
 to a Master at Chambers to dismiss the action for want of pro- 
 secution under Order XXXA^I. r. 4 a. (R. S. C. June, 1876, 
 r. 13). Whichever party gives notice of trial has the choice of 
 the mode of trial : but this should always be by judge and jury 
 in cases of defamation. Either party therefore receiving notice 
 of trial by any other mode than before a jury should within four 
 days give notice that he requires a jury, and will thereupon 
 without any summons or order at Chambers, be entitled to have 
 the cause tried before a jury. Nor can any Judge or Master 
 deprive either party of his right to a trial by jury, if it has been 
 claimed in due time. {Sugg v. Silher, 1 Q. B. D. 3()2 ; 45 L. J. 
 Q. B. 460 ; 24 W. B. 640 ; 84 L. T. 682.) 
 
 Ten days' notice of trial must be given, unless the other party 
 has consented to take short (i.e., four days') notice. (Order 
 XXXVI. r. 9.) The notice must be given before entering the 
 action for trial {Ih. r. 10), and cannot be countermanded except 
 by consent or leave. (Ih. r. 13.) It must state whether it is for 
 the trial of the action or of issues therein ; and in actions in the 
 Queen's Bench, Common Pleas, and Exchequer Divisions, the 
 place and day for wddch it is to be entered for trial. (Ih. r. 8 ; 
 R. S. C. Dec. 1875, r. 12.) Notice of trial for London or 
 Middlesex will not be deemed to be for any particular sittings, 
 but for any day after expiration of the notice on which the trial 
 can come on in its order. (Z6. r. 11.) If the party giving notice 
 of trial for London or ]\Iiddlesex omit on the same day, or 
 the day after, to enter the action for trial, the other party may 
 do so within four days. (Ih. r, 14.) But notice of trial elsewhere 
 than London or Middlesex will be deemed to be for the first day 
 of the next assizes at the place mentioned (76. r. 12), and there 
 either party may enter the action for trial. (lb. r. 15.) 
 
 By the express words of Order XXXVI. r. 3, a plaintiff may 
 give notice of trial with his reply, altliough the pleadings be 
 not yet completed. But he cannot enter the cause for trial 
 until the record is complete ; because by rule 17a of tlie same 
 Order the party entering the action for trial must deliver to the 
 officer two copies of the vliole of the pleadings in the action. 
 (See Metropolitan Inner Circle lia'duuy Co. v. Metropolitan
 
 524 PRACTICE AND EVIDENCE. 
 
 Railway Co., 5 Ex. D. 19G ; 40 L. J. Ex. 505 ; 28 W. R 510; 
 42 L. T. 591). In this case Stephen, J., construed r. 3 to 
 mean that a j^laintiff could only give notice of trial with his 
 reply, where such reply completed the pleadings. That was very 
 probably the intention of those who framed the rule ; but the 
 words they have used are undoubtedly to the contrary effect. 
 And there is a practical advantage in enabling a plaintiff thus 
 to hurry on a dilatory defendant. Kelly, C. B., considered that 
 a plaintiff could always deliver notice of trial Avith his reply, 
 and such has been and still is the practice at chambers, both 
 before and since this case was reported. The remarks of 
 Stephen, J., were cited to the Divisional Court (Cockburn, C. J., 
 and Hawkins, J.,) on August 2nd, 1880, in a case of Asquith v. 
 Molineux, 49 L. J. Q. B. 800 ; \¥eekly Notes, 1880, p. 15G ; 
 but it was held that the words of Order XXXVI. r. 3, Avere 
 precise, and fully justified the practice at chambers. So that 
 now it is settled that a plaintiff may always, if he pleases, 
 deliver notice of trial witli reply. 
 
 As to either party discontinuing the action, sec Order XXIII. 
 
 Advice on Evidence. 
 
 As soon as notice of trial is given, or in urgent cases even 
 sooner, the papers should be laid before counsel for his advice 
 on evidence. This should always be done by both sides, even 
 in cases apparently simple ; else the action may be lost for want 
 of some certificate or other formal piece of proof, as in Collins v. 
 Carnefjie, 1 A. & E. 695. Every document in the case should 
 be sent in to counsel, especially the affidavits of documents, the 
 answers to interrogatories, and the draft notices to produce 
 and to inspect and admit. Also some statement as to the 
 oral evidence proposed to be given, if not the full proofs which 
 will afterwards form part of the brief. 
 
 Counsel in advising on evidence must consider first Avhat are 
 the issues in the case and which lie on the plaintiff, which on 
 the defendant ; and then state seriatim how each is to be 
 proved or rebutted. 
 
 The onus lies on the plaintiff to prove that the defendant 
 published or uttered the defamatory words, that they were 
 understood in the sense alleged in the innuendo, that thev
 
 ADVICE ON EVIDENCE. 525 
 
 referred to the plaintiff, and, if the occasion be one of qualified 
 privilege, that they were published or uttered maliciously. In 
 some cases, also, it is essential, in every case desirable, to prove 
 special damage resulting from the words. It may further be 
 necessary to prove that the plaintiff at the date of publication 
 held some office or exercised some profession or trade, and that 
 the words were spoken of him in the way of such office, pro- 
 fession, or trade. If money has been paid into Court, the onus 
 lies on the plaintiff of proving that the amount is insufficient. 
 If the Statute of Limitations has been pleaded, the onus lies on 
 the plaintiff [Wilhy v. Henman, 2 Cr. & M. 658) of proving a 
 publication of the libel within six years, or the utterance by 
 the defendant of words actionable per se within two years, or 
 that damage has within six years resulted from the utterance 
 by the defendant of a slander not actionable j^e/- se. (See ante, 
 p. 455). 
 
 On the defendant, on the other hand, lies the onus of proving 
 privilege, justification, or an accord and satisfaction. If he has 
 pleaded a plea under Lord Campbell's Act, the 0)ius lies on the 
 defendant to prove that the libel was inserted without gross 
 negligence, and that a full apology was inserted in proper type 
 before action brought, or as soon as possible afterward.?. 
 
 The plaintiff may also offer evidence in aggravation, the 
 defendant in mitigation, of damages. (See ante, pp. 29G, 299.) 
 
 Each party should be prepared with evidence not only to 
 prove the issues which lie upon him, but also to rebut his ad- 
 versary's case. Counsel should name the witnesses who will 
 be required. If a material witness is unavoidably absent, it 
 may be necessary to apply for leave to countermand notice of 
 trial, under Order XXXVI. r. 13, or to postpone the trial. The 
 trial will, even after notice of trial, be posponed, upon terms, in 
 order to procure the attendance of witnesses from abroad. 
 (Broivn v. Murray, 4 D. cl-, R. 830 ; M'Caahy v. Thorpe, 1 Chit. 
 ()85.) In other cases it may be necessary to apply for a com- 
 mission abroad, or for leave to examine, before trial, a witness 
 who is dangerously ill or about to leave the country {2^ost, 
 p. 52G). If it 1)0 necessary to bring up a prisoner to give 
 evidence, an application may be made to the judge ex parte for 
 an order, under 10 & 17 Vict. c. 30, s. 0, on an affidavit stating 
 where the prisoner is confined, and for what crime, and when
 
 526 PRACTICE AXD EVIDEXCE. 
 
 ami where \\\<. attendance will l)e required. Iq the case, now 
 rare, of a person being confined upon civil process, the above 
 statute does not apply, and a writ of habeas corpus ad testi- 
 jicandmn must be obtained upon application on affidavit to a 
 judge at chambers. This application apparently cannot be 
 made ex 'pavie. A lunatic may be brought up from his asylum 
 under such a writ if he is fit for examination. {Fennell v. 
 Tait, 1 C. M. & R. 584.) A witness residing in Ireland or 
 Scotland can be compelled to attend by a suhpo&na ad testifi- 
 candum issued by the special leave of a judge under the 17 & 
 18 Vict. c. 34, s. 1. 
 
 Counsel should next consider what documents will be re- 
 quired, and how, if the originals cannot be produced, they may 
 be proved by secondary evidence. (See post, p. 536.) For this 
 purpose he must carefully go through the notice to inspect and 
 admit, and the notice to produce, and advise on their sufficiency. 
 He is sometimes also consulted as to the advisability of securing 
 a special jury or of applying to change the venue {post, p. 528). 
 
 It is often convenient to copy the advice on evidence into the 
 leader's brief, especially if any points of law are discussed in it, 
 and cases cited. 
 
 Examination of Witnesses hefure Trial. 
 
 If a witness is obliged to go abroad on a voyage of necessity, 
 or is so ill and infirm that in all probability he will not be able 
 to attend at the trial, an application should be made, after issue 
 joined, for an order, under Order XXXYII. rr. 1, 4, that he be 
 examined upon oath before a Master or a sjaecial examiner, and 
 that his deposition may be read at the trial. 
 
 It is a misfortune to both sides when such a necessity arises. 
 The jury j^ay little attention to a deposition read out b}^ an 
 officer of the Court ; and the other side loses the precious 
 opportunity of cross-examining the witness in the presence of 
 the jury. The party applying should show on affidavit that the 
 witness is so necessary and material that he cannot safely 
 proceed to trial without him. The reasons for his absence must 
 be stated and verified : in the case of illness the affidavit of the 
 medical man in attendance must be obtained. The other side 
 will object on the ground that the e\'idcnce of the witness is
 
 EXAMINATION OF WITNESSES BEFORE TRIAL. 527 
 
 immaterial, that tliere is no sufficient reason for his not Leiog 
 produced in Court, that the same evidence could be given by 
 others who can attend, d-c. If the order be made, and the 
 deposition taken, still it cannot be read in Court without proof 
 of continued absence or illness. But for this purpose the 
 affidavit of the solicitor is generally sufficient. 
 
 The above practice applies to witnesses either within or 
 without the jurisdiction of the Court; but it is practically con- 
 fined to witnesses of the former class. Where it is desired to 
 take evidence out of the jurisdiction, the rule is to apply for a 
 commission abroad. This application must be made on affidavit, 
 stating as far as practicable the names and addresses of the 
 foreign witnesses, and showing the necessity for the application, 
 and that the party applying cannot safely proceed to trial 
 without their evidence. Where the defendant in an action of 
 slander applied for a commission to examine witnesses in 
 Australia, he was ordered to state in an affidavit the general 
 nature of the evidence which he expected such witnesses to 
 give. {Barry v. Barclay, 15 C. B. N. S. 849. And see 
 Macaiday v. ShaMl and others, 1 Bligh, N. S. 96 ; TAorpe v. 
 Macaidey, 5 Madd. 19.) Such affidavit may be made by the 
 managing clerk having the conduct of the action. The ap- 
 plication is not usually made till after issue joined : if it is 
 made earlier, reasons for such urgency must be assigned in the 
 affidavit. It will be an answer to the application, if it can be 
 sliown that tlie witnesses could be brought to England without 
 much greater expense [SpUler v. Paris Skating Rinh Co., 
 Weekly Notes, 1880, p. 228) ; or that Avitnesses now in England 
 could give the same evidence. {Tlte M. Moxltam, (C. A.) 1 P. D. 
 1 07, 115 ; 40 L. J. P. D. & A. 17 ; 24 W. K 597, 650 ; 34 L. T. 
 559.) Sometimes the mere delay, which will thus necessarily 
 be caused, is a sufficient reason for refusing the application. 
 [Steuart v. Gladstone, 7 Ch. D. 394; 47 L. J. Ch. 154; 26 
 W. R. 277 ; 37 L. T. 575. But see Mdissich v. Lloyd's, 
 Weekly Note.s, 1875, p. 2U0 ; 1 Charley, 119; Bitt. 5; 20 Sol. 
 J. 31 ; 60 L. T. Notes, 33.) 
 
 The costs of the commission must be borne by the joarty who 
 applied for it, unless the judge at the trial makes any order in 
 respect of them. {Re Imperial Land Co. of Marseilles, 
 37 L. T. 588 ; Weekly Notes, 1877, p. 244.)
 
 528 PRACTICE AND EVIDENCE. 
 
 Hpccial Jury. 
 
 Either party will be entitled to have the cause ti'ied by a 
 special jury upon giving notice in writing to his opponent 
 of such intention. The plaintitf' must give such notice ten 
 days at least before trial, unless the defendant is under terms 
 to take short notice of trial : the defendant must give his 
 notice more than six days before commission day. (Reg. Gen. 
 Hilary Term 1853, r. 44.) The ss. 109, 112 of the CWimon 
 Law Procedure Act, 1852 originally did not apply to actions in 
 London or Westminster, but were extended to such actions by 
 the Jury Act 1870, 33 & 34 Vict. c. 77, s. 18. If the time has 
 gone by, either party may take out a summons for a special 
 jury, and must then be prepared to show some reason for the 
 application, e.g., that difficult questions of fact will arise, &c. 
 That there were special pleas in a case of libel has been held a 
 sufficient reason for allowing a special jury. {Roberts v. Brown, 
 6 C. & P. 757.) 
 
 The party who has obtained a special jury mu.st give notice 
 thereof to the sheriff six days before the first day of the 
 sittings or the commission day of the assizes. (Common Law 
 Procedure Act, 1852, s. 112.) Such party will also have to pay 
 the costs of the special jury, if sworn, unless the judge certifies 
 to the contrary. 
 
 Change of Venae. 
 
 The plaintiff liaving selected a place of trial when he drew 
 up liis statement of claim, cannot change it without an order ; 
 and for that he must apply to a master or district registrar, 
 showing reasonable ground for the change. If, however, a 
 defendant desires to have the venue changed, he must show 
 more than reasonable ground for the change. For the plaintiff 
 has the right to fix the place of trial; and the defendant nuist 
 show a distinct preponderance of convenience to oust plaintiff 
 of his right. (Church v. Barnctt, L. K 6 C. P. 116 ; 40 L. J. 
 C. P. 138; Plum v. Nurmanton Iron Co., Weekly Note.s, 187G, 
 p. 105 ; Bitt. 140 ; 20 Sol. J. 340 ; GO L. T. Notes, 303.) Where 
 the defendant resides is quite immaterial. {Per Quain, J., 
 1 Charley, 119; Bitt. 53; GO L. T. Notes 103.) Where the 
 cause of action arose has now but little to do with the (piestiou.
 
 TRIAL. 529 
 
 The defendant must show that a trial in the county to which 
 he desires to change the venue, will be clearly less expensive 
 and more convenient for the majority of witnesses on Loth sides. 
 That it will be more convenient for defendant's witnesses is 
 alone no ground for the application. {Wlieatcroft v. Mousley, 
 11 C. B. G77.) But the defendant will, as a rule, be entitled to 
 have the venue changed, if he can show that there is no pro- 
 bability of a fair trial in the place the plaintiff has selected, 
 e.g., if a local newspaper of extensive circulation has published 
 unfair attacks on the defendant with refereuce to the subject- 
 matter of the action. {Pyhus v. Scudamore, Arn. 464 ; Wallcer 
 V. Brogden, 17 C. B. (N. H.) 571 ; 11 Jur. N. S. 071 ; 13 W. B. 
 809; 12 L. T. 495.) 
 
 This application is not generally made by defendant till after 
 notice of trial. 
 
 Trial. 
 
 When the action is called on, if the defendant does not 
 appear, the plaintiff may prove his claim so far as the burden 
 of proof lies upon him. (Order XXXVI. r. 18.) It is not 
 necessary to produce an affidavit of service of notice of trial. 
 {Chorlton v. Dickie, 13 Ch. D. 160 ; 49 L. J. Ch. 40 ; 28 W. R. 
 228; 41 L. T. 469.;r If the plaintiff does not appear, the 
 defendant is entitled to judgment with costs. Verdict or judg- 
 ment obtained in default of such a23pearance may be set aside 
 upon application to a judge at chambers within six days after 
 trial, upon terms {ib. r. 20). Or the judge, when the case is 
 called on, may postpone or adjourn the trial, upon terms, if he 
 think it expedient for the interests of justice (ib. r. 21). But 
 the fact that either party is not ready, that his witnesses have 
 missed the train, or that his counsel has been but that moment 
 briefed, is not generally considered by judges as any ground for 
 a postponement. But it is otherwise where there has been no 
 negligence or default, e.g., where it is stated on affidavit that a 
 ■witness is unavoidably absent through illness. (Turner v. 
 Meryweather, 7 C. B. 251 ; 18 L. J. C. P. 155.) A judgment ob- 
 tained by default of appearance will be set aside if no notice of 
 trial was given, or if for any other reason the defendant was 
 not aware that his case was in the paper for trial, unless his 
 ignorance of the fcict was caused by gross negligence in his
 
 530 PRACTICE AND EVIDENCE. 
 
 solicitor. [Burgoine v. Taylor, (C. A.) 9 Ch. D. 1 ; 47 L. J. 
 Ch. 542 ; 2G W. R 5G8 ; 38 L. T. 438.) 
 
 If, however, both parties appear at the trial, the plaintiff is 
 always entitled to begin, even where the onus of proof lies on 
 the defendant. {Carter v. Jones, G C. & P. 64 ; 1 M. & R. 
 281 ; Mercer v. Whall, 5 Q. B. 447, 4G2, 4G3 ; 14 L. J. Q. B. 
 2G7, 272.) 
 
 Proof of the Plaintiff 's Special Character. 
 
 Where the words are actionable only by reason of the plain- 
 tiff's holding an office or exercising a profession or trade, the 
 plaintiff must prove that he held such office or exercised such 
 profession or trade at the date of publication, and that the 
 words complained of were spoken of him in the way thereof. 
 Sometimes the words themselves admit the plaintiff's special 
 character, or it may be admitted on the pleadings : if so, it is 
 of course unnecessary to give any evidence on the point. {Yri- 
 sarri v. Clement, 3 Bing. 432 ; 4 L. J. (Old S.) C. P. 128 ; 11 
 Moore, 308 ; 2 C. & P. 223.) 
 
 Strict proof of the plaintiff's special character is not, as a rule, 
 required. Thus, to prove that a person holds a public office, it 
 is not necessary to produce his written or sealed appointment 
 thereto {Berryman v. Wise, 4 T. R. 3GG ; Cannell v. Curtis, 2 
 Bing. N. C. 228 ; 2 Scott, 379) ; not even in a case of murder 
 {R. V. Gordon, 2 Leach, .581). It is sufficient to show that he 
 acted in that office, and it will be presumed that he acted 
 legally. So where the libel imputes to the plaintiff" misconduct 
 in his practice of a physician or surgeon, or as a solicitor, and 
 does not call in question or deny his qualification to practise, it 
 will not be necessary for him to do more than prove that he 
 was acting in the particular professional capacity imputed to 
 him at the time of the publication of the libel. {Smith v. 
 Taylor, 1 B. & P. N. R. 19G, 204 ; Rutherford v. Evans, G Bing. 
 451 ; 8 L. J. (Old S.) C. P. 8G). It is, as a rule, sufficient to 
 call the plaintiff to say "I am an M.R.C.S." or "lam a bar- 
 rister." But, when the libel or slander imputes to a medical or 
 legal practitioner that he is not properly qualified, and the 
 professional qualification is again denied on the pleadings, the 
 plaintiff should ahvays be prepared to prove it, by producing his 
 diploma or certificate, duly sealed or signed, and stamped,
 
 PROOF OF PUBLICATION. 531 
 
 where a stamp is requisite. At Common Law there was no 
 other way. {Mo'ises v. Thornton, 8 T. E. 303 ; Collins v. Car- 
 negie, 1 A. & E. 6.95 ; 3 N. & M. 703 ; Simrliwj v. Haddon, 9 
 Bing. 11 ; 2 Moo. & Scott, 14.) But now the " Law List" is by 
 the 23 & 21 Vict. c. 127, s. 22, made primes /acie evidence that 
 any one whose name appears therein as a solicitor is a solicitor 
 duly certificated for the current year ; and similarly by the 21 & 
 22 Vict. c. 90, s. 27, the " Medical Register " is prima facie 
 evidence that the persons specified therein are duly registered 
 medical practitioners. But if it is known the plaintiff's quali-, 
 fication will be seriously challenged at the trial, it is safer not 
 to rely solely on such irnmd facie proof, but to jDroduce all 
 dijalomas and certificates. If the plaintiff sues as a solicitor, 
 and his name does not appear in the " Law List," that may be 
 only because he has not taken out his certificate for the present 
 year ; if so, he may still sue for a libel on him as solicitor. 
 {Jones V. Stevens, (1822) 11 Price, 235.) 
 
 So too a medical man can sue for a libel on him profession- 
 ally, although his name does not appear in the " Medical 
 Register," if he can show by a certificate under the hand of the 
 registrar, or in any other way, that he is duly qualified and 
 entitled to be registered. 
 
 No other introductory averment is now material or neces- 
 sary ; hence, if inserted, it may be treated as a surplusage ; it 
 need not be proved. 
 
 Proof of Puhlicution. 
 
 The plaintiff must next prove that the defendant published 
 the libel or spoke the slanderous words to some third person. 
 The statute C & 7 Wm. IV. c. 7G, ss. G, 8, 13, formerly faci- 
 litated proof of publication of a libel contained in a news- 
 paper {Mayne v. Fletcher, 9 B. & C. 382 ; R. v. Franceys, 
 2 Ad. & E. 49 ; R v. Arnphlit, 4 B. & C. 35) ; but these sec- 
 tions are now repealed by the 32 & 33 Vict. c. 24, s. 1, sched. 1. 
 Nor is the 29th section of the 39 Geo. III. c. 79, as (jualified by 
 9 & 10 Vict. c. 33, s. 1, of any practical assistance. 
 
 The Select Committee of the House of Commons appointed to 
 inquire into the law of Newspaper Libel recommend " that the 
 name of every proprietor of a newspaper, or, in the case of several 
 
 M M 2
 
 532 PRACTICE AND EVIDENCE. 
 
 persons engaged as partners in such proprietorship, the names 
 of all such persons, should be registered at the office of the 
 Registrar of Joint Stock Companies, with full particulars of the 
 addresses and occupations of all such persons, or of any change 
 therein." (See App. B.) This would be a beneficial provision, 
 if it were also enacted that a certificate purporting to issue from 
 the office of the said Registrar should be receivable in all Law 
 Courts, and in all proceedings whether civil or criminal, as 
 sufficient evidence that the defendant was proprietor or part- 
 proprietor of the paper throughout the period during which his 
 name was on the register. 
 
 Till some such measure becomes law, discovery can only be 
 obtained under the 6 & 7 Wm. IV. c. 7G, s. 19, which is still 
 law {Blxon v. Enocli, L. R. 13 Eq. 394 ; 41 L. J. Ch. 231 ; 
 20 W. R. 359 ; 26 L. T. 127) ; or interrogatories may now be 
 administered on this point (see ante, p. 514). But if no satis- 
 factory admission be thus obtained, the plaintiff must prove 
 that the newspaper "was purchased of the defendant, or at 
 any house, shop, or office belonging to or occupied by the 
 defendant, or by his servants or workmen, or where he may 
 usually carry on the business of pri^iting or publishing such 
 newspaper, or where the same may be usually sold." (G & 7 
 Wm. IV. c. 76, s. 8.) 
 
 As to what is a sufficient publication in law see ante,, c. VI. 
 pp. 150-168. As to constructive publication by a servant or 
 agent, see ante, c. XII. pp. 360-365, Principal and Agent. As 
 to publication by telegram, see Williamson v. Freer, L. R. 9 
 C. R 393 ; 43 L. J. C. P. 161 ; 22 W. R. 878 ; 30 L. T. 332 ; 
 by postcard, Rohinson v. Jones, 4 L. R. Ir. 391. The sale of each 
 copy is a distinct publication. [R. v. Richard Garlile, 1 Chitt}'-, 
 451 ; Duke of Brunsivich v. Harmer, 14 Q. B. 185 ; R. v. 
 manger, L. R. 6 Q. B. 352 ; 40 L. J. Q. B. 96 ; 16 W. R. 640.) 
 Causing a libel to be printed may be a primd facie publication. 
 [Baldwin v. Eliol tinstone, 2 W. Bl. 1037.) But if the libel never 
 reaches the hands of any one except the printers and com- 
 positors, this alone would in the present day be deemed in- 
 sufficient. {Waits V. Frasev, 7 A. & E. 223; ante, p. 152; 
 Lawless v. 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.) 
 
 A letter is published as soon as it is posted, provided it ever
 
 PROOF OF PUBLICATION. 533 
 
 reaches the party to whom it is addressed, which will be pre- 
 sumed if there be no evidence to the contrary. Thus if a letter 
 in the handwriting of the defendant be produced in Court with 
 the seal broken, and the proper postmarks outside, that is suffi- 
 cient evidence of publication. {Warven v. Warren, 1 C. M. & 
 K 250 ; 4 Tyr. 850 ; Ward v. Smith, G Bing. 749 ; 4 M. & P. 
 595 ; 4 C. & P. 402 ; Shiijley v. Todhuntcr, 7 C. & P. C80.) So 
 Avhere a libel had appeared in print, and the manuscript from 
 which it was printed is proved to be in the defendant's hand- 
 writing, this is ijvimd facie a publication by the defendant. 
 It is not necessary to prove expressly that he directed or 
 authorised the printing. [Bond v. Douglas, 7 C. & P. G2G ; 
 Tarpley v. Blaheij, 2 Bing. N. C. 437 ; R. v. Lovett, 9 C. «& P. 4G2 ; 
 Adams v. Kelly, Ry. & M. 157.) So if the defendant write a libel, 
 which is in some way subsequently published, this is, pvimd 
 facie, at all events, a publication by the defendant. [Per 
 Holt, C. J., in R. V. Beere, 12 Mod. 221 ; 1 Ld. Raym. 414.) 
 
 Any one who has ever seen the defendant write (even though 
 once only, Garrels v. Alexander, 4 Esp. 37), can be called to 
 prove his handwriting. So can any one who has corresponded 
 with the defendant, or seen letters which have arrived in answer 
 to letters addressed to the defendant. Thus a clerk in a 
 merchant's office who has corresponded with the defendant on 
 his master's behalf, may be called to prove the handwriting. 
 [R. V. Slaney, 5 C. & P. 213.) The usual course is for the 
 plaintiff's counsel merely to ask the witness, "Are you ac- 
 quainted with the defendant's handwriting ? " leaving it to de- 
 fendant's counsel to cross-examine as to the extent of his 
 acquaintance. Such cross-examination will only weaken the 
 force of his evidence, not destroy its admissibility. {Eagleton 
 V. Kingston, 8 Ves. 473 ; Doe d. Mudd v. Suckermore, 5 A. & E. 
 730.) By s. 27 of the C. L. P. Act, 1854, " comparison of a dis- 
 puted writing with any writing proved to the satisfaction of the 
 judge to be genuine, shall be permitted to be made by the 
 witnesses ; and such writings, and the evidence of witnesses 
 respecting the same, may be submitted to the Court and jury 
 as evidence of the genuineness or otherwise of the writing in dis- 
 pute." (Sec Brookes v. Tichhorne, 5 Ex. 929 ; 20 L. J. Ex. 69 ; 
 14 Jur. 1122.) But the evidence of experts must always be 
 received with caution. In a recent case, an expert in handwriting
 
 534 PRACTICE AND EVIDENCE. 
 
 swore positively that the libel was in the handwriting of the Lord 
 Mayor elect ; but subsequently a young man came forward and 
 acknowledged that he wrote it, and that Sir F. Truscott never had 
 anything to do with the matter. (See also Seaman v. Nctherclift, 
 
 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.) If the defendant be present in Court, he may, it seems, 
 be then and there required to write something which the Court 
 and jury may compare Avith the document in dispute. {Doe d. 
 Devlne v. W'lhon, 10 Moo. P. C. 502, 530.) 
 
 Publication may also be proved by the evidence of an ac- 
 complice {R. V. Hasivell and Bate, 1 Dougl. 387 ; E. v. Steiuard, 
 
 2 B. & Ad. 12), or by the defendant's own admission. (R. v. 
 Hall, 1 Str. 410.) But such admission will not be extended 
 beyond its exact terms. Thus an admission that the defendant 
 wrote the libel is no admission that he also published it. (The 
 Seven Bishops' case, 4 St. Tr. 300.) An admission that de- 
 fendant was the editor of a periodical at a certain date is no 
 evidence to connect him with a libel published in the same 
 periodical at a later date. {Macleod v. Wakley, 3 C. & P. 311.) 
 A witness may be asked if he knows who wrote the libel, but if 
 he answers "yes," he is not bound to name the person, because 
 it may be himself. (R. v. Slaney, 5 C. & P. 213.) The plaintiff 
 may even call the defendant himself as a witness, nor can his 
 counsel object that no relevant question can be asked him that 
 will not tend to criminate him. The defendant must go into 
 the box, and take the objection himself, when the question is 
 asked. No one can take it for him. (Boyle v. Wiseman, 10 
 Ex. 647 ; 24 L. J. Ex. 160 ; 24 L. T. (Old S.) 274 ; 25 L. T. 
 (Old S.) 203.) But no witness can be compelled to answer any 
 question, if he states on oath that he objects on the ground that 
 to answer it might tend to show that he was concerned in the 
 publication of libel. 
 
 Where the facts are in dispute, it will be for the jury to 
 decide whether the defendant wrote the libel, whether it was 
 ever published to a third person other than the plaintiff, 
 whether the office where the libel was purchased was the de- 
 fendant's or not, &c. &c. When the facts are found, it is for 
 the judge to decide whether there has been a j)ublication in 
 law by the defendant.
 
 PRO OF, OF THE LIBEL. 535 
 
 Proof of the Libel. 
 
 The libel itself must be produced at the trial : the jury are 
 entitled in all cases to see it. ( Wright v. ^Yooilgate, 2 C. M. 
 k K 573 ; Gilpin v. Foivler, 23 L. J. Ex. 156.) The defendant 
 is entitled to have the whole of it read. (Cooh v. Hughes, 
 R. & M. 112.) The original must be carefully traced, where it 
 has passed through many hands. {Fryer v. Gathercole, 4 Ex. 
 2(32; 18 L. J. Ex. 389; Adams v. Kelly, Ry. & Moo. 157.) 
 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 all 
 counterpart originals, and each is primary evidence of the 
 contents of the rest. (R. v. Watson, 2 Stark. 129 ; Johnson 
 V. Hudson and, Morgan, 7 A. & E. 233, n.) 
 
 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 H. & N. 838 ; 29 L. J. 
 Ex. 430 ; 6 Jur. N. S. 780 ; 2 L. T. 378, it was decided that the 
 objection must be taken by the head of the public department 
 of State, ■vvho is alone able to judge. That course was followed 
 in the recent case of Sicann v. Vines, tried before Lord Cole- 
 ridge and a special jury at Westminster in November, 1877. 
 (See also M'Elveney v. ConneUan, 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-production of those documents which it is 
 objected to produce, and to demand that he shall come into the 
 Avitness-box, and there say that he is the head of the depart- 
 ment, and objects to such and such documents being produced, 
 specifying them, on the ground of public policy." {Per Grove, J., 
 in Kain v. Farrcr, 37 L. T. 470.) But in the case of Spachnan 
 V. Gihney, tried before the same 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
 
 536 PRACTICE AND EVIDENCE. 
 
 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 
 complaining 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 production on the ground of public policy. 
 {BlaU V. Filfold, 1 Moo. & Rob. 198.) 
 
 If the original libel has been lost or destroyed, secondary 
 evidence may of course 1)C given of it {Rainy v. Bravo, 
 L. R 4 P. C. 287 ; 20 W. K 873 ; Gathercoh v. 3IiaU, 15 M. & 
 W. 319), except where the libel is contained in an official docu- 
 ment, which is privileged from production on the ground of 
 public jaolicy, 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, 
 ih. 156, n. ; Btace v. Gvijjith, L. R. 2 P. C. 428 ; G Moore P. C. 
 C. N. S. 18 ; 20 L. T. 197 ; Dawkins v. Lord Bokehy, (Ex. Ch.) 
 L. R. 8 Q. B. 255.) The plaintiff is also entitled to give 
 secondary evidence of the contents of the libel, if it be in the 
 defendant's possession and is not produced, after notice to 
 produce it given a reasonable time before the trial. 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 ; Keivton v. 
 Chaplin, 10 C. B. 56 ; R. v. Llanfaethly, 2 E. & B. 940 ; 23 L. 
 J. M. C. 33 ; R. v. AicJdes, 1 Leach, 330.) 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. McCallan, 
 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. 284.) 
 
 If the words proved materially differ 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 ; Tahart v. Tipper, 1 
 Camp. 350.) But now the judge has amjole power to amend
 
 PROOF OF SPEAKING OF THE SLANDER. 537 
 
 the record, if in his discretion he considers such amendment 
 can be made without prejudice to the defendant. (Order 
 XXVII., rr. 1, G ; Order LIX., r. 2, R S. C. April, 1880, r. 44.) 
 But no amendment will be made, the result of which will be 
 to render the statement of claim demurrable. {Martyn v. 
 Williams, 1 H. & N. 817; 2G L. J. Ex. 117; Caul field v. 
 Whitivorth, IG W. R. 93G ; 18 L. T. 527.) The defendant is 
 entitled to an adjournment if he really desires to justify the 
 words newly inserted in the statement of claim by such 
 amendment. {Saunders v. Bate, 1 H. & N. 402. And see 
 Foster v. Pointer, 9 C. & P. 718 ; May v. Brown, 3 B. &C. 
 113 ; Lord ChurcMll v. Hunt, 2 B. & Aid. G8.5.) 
 
 Proof of the Spealdng of the Slander. 
 
 In cases of slander, the only way to prove j^ublication is 
 by calling those who heard tiie 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. {Armitage v. Punster (178.5), 4 Dougl. 291 ; Maitland 
 and others v. Goldney and another (1802), 2 East, 420.) Thus 
 Avhere the declaration alleged that the defendant stated as a 
 fact that "A. could not pay his labourers," and the evidence 
 was that he had asked a question, " Have you heard A. cannot 
 pay his labourers?" the plaintiff was nonsuited. (Barnes v. 
 Holloivaii (1799), 8 T. R. 1.50.) 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. 
 (Pancaster v. Hewson, 2 Man. & Ry. 17G ; Sydenham v. Man 
 (1G17), Cro. Jac. 407 ; Oqnuood v. Barkes, vel Parhes, 4 Bing. 
 2G1 ; 12 Moore, 492 ; Smith v. Knowelden, 2 M. & Gr. oGl.) 
 
 It was never necessary, however, to prove all the words 
 laid in the declaration ; if the words that are proved are in- 
 telligible 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. {Barton v. Plummer, 2 A. 
 & E. 343.) And so where the action is for procuring a libel to
 
 538 PRACTICE AND EVIDENCE. 
 
 be published by making a verbal statement to tlie 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 wall 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 made communications 
 to the Attornej^-General in his official capacity 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. Gove, 1 Holt, N. P. 299.) 
 
 If the words be spoken in a foreign language, the interpreter 
 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. {Avie, pp. 110, 471.) 
 
 Evidence as to the Innuendo. 
 
 Whenever the words used are not well-known and perfectly 
 intelligible 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 before the Court, clearly used not in 
 that ordinary meaning, but in some peculiar sense ; as are slang 
 and cant expressions. But where the w^ords are Avell-known and 
 perfectly intelligible English, evidence cannot be given to ex- 
 plain 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 borne a special meaning on that particular occasion. 
 After that has been done, a bystander may be asked, " What did 
 you understand by the expression used ? " But without such a 
 foundation being laid, the question is not allowable. (Baines
 
 EVIDENCE AS TO THE INNUENDO. 539 
 
 V. Ilartleij, 3 Exch. 200; 18 L. J. Ex. 81; 12 Jur. 1093; 
 Barnett v. Allen, 3 H. & N. 376 ; 27 L. J. Ex. 415 ; Humphreys 
 V. Miller, 4 C. & P. 7 ; Did-e of Brunsivlch v. Havmer, 3 C. & 
 K. 10.) 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. 0(31.) Figurative or allegorical terms 
 of a defamatory character, if of well-known import, such 
 as imputing to a person the qualities of the " frozen snake " in 
 the fable, need no evidence to explain their meaning. {Hoare 
 V. SUverlock, 12 Q. B. 624 ; 17 L. J. Q. B. 806.) Nor do his- 
 torical allusions or comparisons to odious, notorious, disreput- 
 able persons ; as where the conduct of the plaintiff in a case 
 which he conducted as attorney for one of the parties was com- 
 pared to that of " Messrs. Quirk, Gammon, and Snap ; " the 
 novel " Ten Thousand a Year " was put in and taken as read. 
 {Woodgate v. Ridout, 4 F. & F. 202.) 
 
 Wherever the words sued on are susceptible, both of a harm- 
 less and an injurious meaning, it will be a question for the jury 
 to decide 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 
 have certainly understood them in the other sense. {Fisher v. 
 Clement, 10 B. & C. 472.) Every man must be taken to have 
 intended the natural and probable consequences of his act. 
 The plaintiff may give evidence of suri'ounding circumstances 
 from which a defamatory meaning can be inferred ; he may call 
 Avitnesses to state how they understood the libel ; though the 
 jury are not bound to adopt the opinions of such witnesses. 
 {Broome v. Gosden, 1 C. B. 732.) Also in this case evidence of 
 subsequent words of the same import may be given, so as to 
 explain and point the libel charged. {Pearce v. Ornsby, 1 M. 
 & Rob. 455.) 
 
 The plaintiff may also show that the words, though apparently 
 commendatory, may have been spoken ironically. 
 
 If, however, the words are in their primary sense not action- 
 able, and there is no evidence of any facts known both to the 
 writer and the person to whom he wrote, which could reasonably 
 induce the latter to put u])on them any actionable secondary
 
 540 PRACTICE AND EVIDENCE. 
 
 meauing, the judge should stop the case. {Capital and 
 Counties Bank v. Henty and Sons, (C. A.) 5 C. P. D. 514 ; 
 49 L. J. C. P. 830 ; 28 W. P. 851 ; Ruel v. TatneU, 29 W. K 
 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. {MidUgan 
 V. Cole and others, L. K. 10 Q. B. 549 ; 44 L. J. Q. B. 153; 
 33 L. T. 12 ; ante, pp. 112 — 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 Avords were understood in that sense 
 by those who heard or read them. 
 
 Proof that the uwds refer to the Plaintiff. 
 
 If the libel does not name the plaintiff, there may be need 
 of some evidence to show who was meant. The plaintiff may 
 give evidence of all " surrounding circumstances ; " i.e., the cause 
 and occasion of publication, later statements made by the de- 
 fendant, and other extraneous facts which will explain and point 
 the allusion. The plaintiff may also call at the trial his friends 
 or others acquainted 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, 
 Times for December 17th, 1878, 2^ost, p. 593.) It is not 
 necessary that all the world should understand the libel ; it is 
 sufficient if those who knew the plaintiff, can make out that he 
 is the person meant. (Bourl'e v. Warren, 2 C. & P. 310.) [In 
 Eastwood V. Holmes, 1 F. & F, 349, Willes, J., would 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 of that case were peculiar.] 
 Evidence that the plaintiff was jeered at at a public meeting is 
 admissible to show that his neighbours understood the libel as 
 referring to him. {Cook v. Ward, 4 M. & P. 99 ; 6 Bing. 412.) 
 So, in Du Bost v. Beresford, 2 Camp. 511, Lord Ellenborough 
 held that the declarations made by sjDectators, while they were 
 looking at a libellous caricature, were admissible in evidence to 
 show whom the figures were intended to represent.
 
 EVIDENCE OF MALICE. 541 
 
 Proof that the ivords tvere spoken of the plaintiff in the v:ay of 
 Ms offce, profession, or trade. 
 
 It is not enough for tlie 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 otherwise 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 expressly name the plaintiff's office 
 or trade at the time he spoke, if his words must necessarily 
 affect the plaintiff's credit and reputation therein. {Jones v. 
 Littler, 7 M. & W. 423; 10 L. J. Ex. 171. See ante, p. 124.) 
 But often words may be spoken of a professional man which, 
 though defamatory, in no way affect him in his profession, e.g., 
 an imputation that an attorney had been horsewhipped off the 
 course at Doncaster {Doyley v. Roberts, 3 Bing. N. C. 835 ; 5 
 Scott, 40 ; 8 Hodges, 154 ; ante, p. 75), or that a physician had 
 committed adultery {Ayre v. Craven, 2 A. & E. 2 ; 4 N. & M. 
 220 ; ante, p. 76. See further, ante, pp. Go — 69.) But any 
 imputation 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, pp. 78, 79). 
 
 Evidence of Malice. 
 
 The judge must decide whether the occasion is or is not 
 privileged, and also whether such privilege is absolute or quali- 
 fied. If he decide that the occasion was one of absolute privi- 
 leo-e, the defendant is entitled to judgment, hoAvever maliciously 
 and treacherously he may have acted. If, however, the privi- 
 lege 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. 
 271 — 277), or by intrinsic evidence, such as the exaggerated 
 language of the libel, the mode and extent of publication, and 
 other matters in excess of the privilege {ante, pp. 277 — 288). 
 Any other words written or spoken by the defendant of the 
 plaintiff, and indeed all previous transactions or communications
 
 542 PRACTICE AND EVIDENCE. 
 
 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, will 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, that 
 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; and if, under the influence 
 of such feeling, he writes or speaks a falsehood of his late anta- 
 gonist, such falsehood will probably be deemed spiteful and 
 malicious. 
 
 A plea of justification, if neither abandoned nor proved, will 
 be evidence of malice, if there be any other circumstance in the 
 case suggesting malice, but not otherwise. Care must be taken 
 in citing /S'mpso/i a". Robinson, 12 Q. B. 511, to refer to the 
 judgments of the Court ; as the headnote is declared misleading 
 by Willes, J., in Caulfield v. Whitworth, 16 W. E. 936 ; 18 
 L. T. .526. Proof that the plaintiff at the time of publication 
 knew that what he was saying or writing was false, is proof 
 positive of malice. Proof that in fact the words were false is 
 no evidence of lualice ; the falsity of the words is indeed ahvaj's 
 presumed in the plaintiff^'s favour. The plaintiff's counsel may, if 
 he chooses, in the first instance rebut the justification ; but it is 
 generally safer to leave such proof till the reply, as lie will then 
 know the strength of defendant's case. But he 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. [Broion v. Murivy, R. & M. 254.) 
 
 If no justification be pleaded, and yet the plaintiff" 's counsel 
 gives evidence of the falsity of the libel, this M'ill let in evidence 
 on the other side of the truth of the statement. {Per Lord 
 Ellenborough in Brovm v. Croome, 2 Stark. 298, 299.) 
 
 The plaintiff cannot, as a rule, give any evidence of his own 
 good character (ante, p. 298). 
 
 Evidence of Damage. 
 The .plaintiff need give no evidence of any actual damage 
 where the words are actionable j^&i' se ; he will nevertheless be
 
 NONSUIT. 543 
 
 entitled to substantial damages. {Tripp v. Tl/omas, 3 B. & C. 
 427 ; Ingram v. Laivson, G Bing. N. C. 212.) But if the 
 plaiutiff has suffered any special damage, this should be pleaded 
 and proved. It cannot be proved unless it has been pleaded. 
 As to what constitutes special damage, see ante, pp. 308 — 320. 
 As to what damage is too remote, see ante, pp. 321 — 333. 
 
 Where words are not actionable per se, the plaintiff cannot 
 prove a' general loss of custom ; he must call individual cus- 
 tomers and friends to state why they have ceased to deal at his 
 shop, or to entertain him. Such witnesses cannot, however, be 
 called unless their names have been set out in the statement of 
 claim or the particulars. It must also be proved that they 
 heard of the charge against the plaintiff from the defendant, 
 and from no one else. It will not be sufficient to prove that 
 they heard a rumour, and that the defendant set such a rumour 
 afloat. (See ante, pp. 314, 328 ; Dixon v. Smith, 5 H. & N. 450 ; 
 29 L. J. Ex. 125 ; Bateman v. Lyall, 7 C. B. (N. S.) G38.) 
 
 The plaintiff may also call evidence in aggravation of damages, 
 as to which see ante, pp. 296 — 298. 
 
 Nonsuit. 
 
 At the close of plaintiff's case, the defendant's counsel some- 
 times submits to the judge that there is no case for him to 
 answer. 
 
 The judge should nonsuit the plaintiff, or direct a verdict for 
 the defendant: — 
 
 (1.) If there is no evidence that the defendant published the 
 words. If the Statute of Limitations be pleaded, the plaintiff 
 must prove a publication 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 pe?" 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 profes- 
 sion or trade at the time of publication. 
 
 (5.) If the words arc not actionable in their natural and
 
 544 PRACTICE AND EVIDENCE. 
 
 primary signification, and there is no iunviendo ; or if the only 
 innuendo puts upon the words a meaning that they cannot 
 possibly bear. If, however, it is reasonably conceivable by 
 reason of any facts kuown-to those addressed that they might 
 have put upon the words the secondary meaning ascribed to 
 them by the innuendo, then it would 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. {Eart and another v. Wall, 2 C. P. D. 146 ; 46 L. J. 
 C. P. 227 ; 25 W. K 373.) " 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. at p. 288.) Where 
 the words of the libel are ambiguous, allegorical, or in any way 
 equivocal, and the jury have foimd 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 
 j)assage, there is no possible ground for the construction put 
 upon it by the jury. (Hoare v. Silverlock, 12 Q. B. 624 ; 17 L. J. 
 Q. B. 306 ; Fray v. Fray, 17 C. B. N. S. 603 ; 34 L. J. C. P. 4.5 ; 
 10 Jur. N. S. 1153.) But where the words are not reasonably 
 capable of any defamatory meaning, there the judge will be 
 right in directing a nonsuit. (Hunt v. Goodlake, 43 L. J. C. P. 
 54 ; 29 L. T. 472 ; iMidligan 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 
 privilege, and there is no evidence, or not more than a scintilla 
 of evidence, to go to the jury of express malice. 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. (Somer- 
 ville V. Hawkins, 10 C. B. 583; 20 L. J. C. P. 131 ; 15 Jur. 
 450 ; Harris v. Thompson, 13 C. B. 333.) 
 
 (8.) Where, however, the question of privilege invoh^es
 
 EVIDENCE EOR THE DEEENDANT. 545 
 
 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. (Beatson v. 
 Skene, 5 H. & N. 838 ; 29 L. J. Ex. 430 ; G Jur. N. S. 780 ; 2 
 L. T. 378.) 
 
 Under the former practice a nonsuit did not estop the plaintiff 
 from bringing a second action, though such second action might, 
 on application, be stayed till he had paid the costs of the first. 
 (Hoare v. Dickson, 7 C. B. 164 ; 18 L. J. C. P. 158 ; Prowse v. 
 Loxdale, 3 B. & S. 89G ; 32 L. J. Q. B. 227.) But now, by 
 Order XLI. r. G, judgment of nonsuit is equivalent to a judg- 
 ment on the merits for the defendant, unless the Court or a 
 judge otherwise directs. Whenever the nonsuit is caused merely 
 by some failure in the formal proof of plaintiff's case, the 
 plaintiff's counsel should apply to the judge to direct a common 
 law nonsuit, not on the merits. The defendant is entitled to 
 his costs on a nonsuit, unless the judge expressly orders 
 otherwise. 
 
 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. (Order XXVII. r. G ; Order LIX. r. 2, R. S. C, April, 
 1880, r. 44.) 
 
 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 uttered, detailed in evidence. If the alleged libel refers to 
 any other document, the defendant is also entitled to have that 
 document read, as part of the plaintiff's case. {Weaver v. 
 Lloyd, 2 C. & P. 29G ; Thornton v. Stephen, 2 M. & Rob. 4.5 ; 
 Hedley v. Barlow and another, 4 F. & F. 227.) So where the 
 action is brought for a criticism on the plaintiff's book, no im- 
 putation being cast on him personally, it was held that the 
 plaintiff ought to put in the book criticized as part of his own 
 case. {Strauss v. Francis, 4 F. & F. 939, 1107.) This will 
 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 therefore not
 
 546 PRACTICE AND FA^IDENCE. 
 
 entitled to have other passages in that newspaper read. {Darby 
 V. Ousehy, 11 H. & N. 1 ; 25 L. J. Ex. 227.) 
 
 The defendant's counsel often prefers not to call any witnesses, 
 so as to have the last word witli the jury. He must rely, 
 instead, on the cross-examination of the plaintiff's witnesses. 
 These should often be cross-examined not only as to the facts 
 of the case, but also " to credit ; " that is, they should be cross- 
 examined as to matters not material to the issue, with a view 
 of shaking their whole testimony. But in order to prevent the 
 case from thus brandling 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 section 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. {Ward v. Sinfield, 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. If, however, the conviction was at petty sessions only, 
 then it was decided, in Hartley v. Hindmarsh, 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 tlie 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 Act applies entirely to criminal 
 proceedings, yet s. 18 contains the words " in any legal proceed- 
 ing whatever." As a rule, therefore, no objection is made to the 
 admissibility in civil proceedings of a certificate under that 
 section ; although the point has never yet been decided, and is 
 certainly open to argument. 
 
 The defendant must be careful, however, not to increase, by 
 such cross-examination, the amount of damages that may be
 
 EVIDENCE FOR THE DEFENDANT. 547 
 
 given ao-aiust him. Tlius wliere the libel consisted of com- 
 ments in a newspaper on a criminal trial, in which the plaintiff 
 was acquitted, and the defendant's counsel put to the plaintiff 
 a series of questions tending to show that he really had been 
 guilty of the crime with which he was charged, sucli a course of 
 cross-examination was held a serious aggravation of the libel. 
 {Rish Allah Bey v. Whltehuvst, 18 L. T. G15.) 
 
 Either party may use in evidence at the trial any one or 
 more of the answers of the opposite party to interrogatories, 
 .without putting in the others : but the judge may direct any 
 others to be put in. (Order XXXI. r. 23.) 
 
 Where the words are actionable only because they were spoken 
 of the plaintiff in the way of his trade, the defendant may 
 show that such trade is illegal {Huvst v. Bdl, 1 Bing. 1) ; 
 and it is no objection to siich evidence that it also indirectly 
 proves the truth of the defendant's words. {Manning v. 
 Clement, 7 Bing. 302, 3G8 ; 5 M. & P. 211.) 
 
 Where it is not allec^ed 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. {Da.y v. Bream, 2 M. & Kob. 
 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. IGO, 384.) 
 
 The defendant's counsel may also urge that the occasion of 
 publication was privileged. (See amte, c. VIII., pp. 182 — 203.) 
 If the facts necessary to raise this defence are not already in 
 evidence, he must call witnesses to prove them. Thus it is 
 often 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. He will also state that he 
 acted bond Jide, 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 cross-examination, circumstances 
 which show that the occasion was privileged. Statements made 
 
 N N 2
 
 548 PRACTICE AND EVIDENCE. 
 
 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. 
 
 The defendant may also give evidence of antecedent con- 
 versations 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 j)art 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. {Hanldn- 
 son V. Bilhij, IG M. & W. 442 ; 2 C. & K. 440 ; 3Iartin v. Loei, 
 2 F. & F. 054 ; ante, pp. 107 — 9.) For the question which 
 the jury have to determine is not "What did the defendant 
 intend ? " but " What would a reasonable person have under- 
 stood from the language used ? " So, too, where a libel is un- 
 ambiguous in itself, and does not refer to any other writing, the 
 defendant cannot use any other writing for the purpose of ex- 
 plaining away its meaning. 
 
 The defendant may also prove a justification. The attempt, 
 if unsuccessful, will aggravate the damages. Strict proof must 
 be given of the whole charge made and of the precise charge 
 made. Sometimes a libel contains two or more distinct and 
 severable charges against the plaintiff: if so, it will tend in 
 mitigation if the defendant can prove any one of such charges 
 true. (See ante, p. 17G.) If the charge made against the plaintiff 
 is that he was convicted of an offence, then such conviction 
 may be proved in the manner stated, ante, p. 546. (See 
 Alexander v. Korth-Eastern Railway Co., 6 B. & S. 340 ; 34 
 L. J. Q. B. 152 ; 13 W. R G51.) So, too, where the libel con- 
 sists of an incorrect statement of a conviction of the plaintiff 
 by a magistrate, the plaintiff may, with a view of the assessment 
 of damages, enter into all the circumstances which led to the 
 conviction, although such evidence tends to show that the con- 
 viction was erroneous, {Gwynn v. South- Eastern Raihvay Co., 
 18 L. T. 738.) If, however, the imputation is that the plaintiff 
 has committed a crime, then the charge must be proved as 
 strictlv as on an indictment for the same offence. And here,
 
 EVIDENCE FOR THE DEFENDANT. 549 
 
 the fact that the plahitiff had been previously tried and 
 acquitted, or convicted, is irrelevant ; and the record of the 
 criminal trial is not admissible in evidence either way, for the 
 parties are not the same. {Justice v. Gosling and others, 
 12 C. B. 39 ; 21 L. J. C. P. 94 ; England v. Bourke, 3 Esp. SO.) 
 
 Where no justification is pleaded, the defendant can give no 
 evidence of the truth of his Avords, not even in mitigation of 
 damages. (Smith v. Ricliardson, 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. 3G2, 368; 5 M. & P. 211.) 
 Thus, if the defendant has pleaded privilege, he may show that 
 he reasonably and bond fide believed in the truth of the charge 
 he made, and it is no objection that the grounds of his belief 
 were so forcible as to convince every reasonable man of the 
 plaintiff's guilt. 
 
 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 such other actions are pending should not be men- 
 tioned to the jury. 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). 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. (R. v. Neivman, 1 E. & B. 268; 21 
 L. J. Q. B. 150 ; 3 C. & K. 252 ; Dears. C. C. 85 ; 17 Jur. 017.) 
 If, however, the libel purports on the face of it to be derived 
 from a certain newspaper, the defendant may prove in mitiga- 
 tion 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. 302, 3.) The defendant may not give evidence that there 
 was a rumour current to the same effect as the words he spoke. 
 (Ante, p. 304 — 6.) As to the proof of a plea under Lord 
 Campbell's Act see ante, p. 300 ; — as to other evidence in 
 mitigation of damages, see ante, pp. 301 — 8.
 
 550 PRACTICE AND EVIDENCE. 
 
 WitJidratuing a Juror. 
 
 Actions of defamation are often compromised before the 
 judge comes to sum up the evidence. A juror is often with- 
 drawn, sometimes 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. 
 674.) If any other terms be agreed on, they should be endorsed 
 on counsels' briefs, and each endorsement signed by the leading- 
 counsel on both sides. The terms of such a compromise will be 
 strictly enforced, if necessary by an order of the Court. {Riley 
 V. Bijrnc, 2 B. & Ad. 779 ; Tardreiu v. Brool; 5 B. & Ad. 880.) 
 Counsel have 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 Ch. D. 
 861 ; 28 W. R. 345.) 
 
 Summing-uj). 
 
 The judge now sums u]) the facts of the case to the jury, and 
 directs them as to the law. He is not bound to state to the 
 jury, as matter of law, Avhether the publication complained of 
 be a libel or not. {Bua/Us v. Laivrence, 11 A. & E. 920; Hearne 
 V. StoiveU, 12 A. & E. 719 ; 11 L. J. Q. B. 25 ; 4 P. & D. 696.) 
 Tlie proper course is for him to define what is a libel in point of 
 laAv, and to leave it to the jury to say whether the publication 
 in question falls within that definition. {Parmiterv. Couplancl 
 and another, 6 M. & W. 105.) The jury are bound to take the 
 judge's definition of a libel, and decide in accordance therewith. 
 {Levi V. Mihic, 4 Bing. 195 ; 12 Moore, 418.) Though the 
 question for the jury "Libel or no libel " is not precisely the 
 same as "What is the legal definition of an actionable libel ? " 
 {Per Barry, J., in Stannus v. Finlay, Ir. R. 8 C. L, 264.) The 
 question for the jury is not "Did the defendant intend to injure 
 the plaintiff?" but, "Has he in fact injured the plaintiff's 
 reputation ? "
 
 VERDICT. 55 1 
 
 Where other libels, &c., have been given in evidence to prove 
 express malice, the judge should caution the jury not to give 
 any damages in respect of them. (Peaison 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.) 
 
 Either party had formerly the power of excepting to the 
 direction of the judge at the trial on a point of law. This was 
 done by tendering to the judge a bill of exceptions before verdict, 
 which was then annexed to the record, so that the point could be 
 raised at once in a Court of Error. But now, by Order LVIII. 
 r. 1, bills of exceptions and proceedings in error are abolished. 
 But by s. 22 of the Judicature Act, 187-5, a very similar method 
 is provided. That section enacts that nothing in either Judica- 
 ture Act "shall take away or prejudice the right of any party to 
 any action to have the issues for trial by jury submitted and 
 left by the judge to the jury before whom the same shall come 
 for trial, with a proper and complete direction to the jury upon 
 the law, and as to the evidence applicable to such issues. 
 Provided also that the said right may be enforced by motion in 
 the Court of Appeal founded upon an exception entered upon 
 or annexed to the record." 
 
 Thus, whenever the judge, on a point of law, directs a verdict 
 to be entered for either party, the other party may still tender 
 exceptions to such ruling, and the judge should then be asked 
 to order such exceptions to be annexed to the record. The 
 proper mode of bringing before the Court of Appeal exceptions 
 to the ruling of a judge in directing a jury, is to give an 
 ordinary notice of motion of appeal against the judge's ruling^ 
 stating the point intended to be raised. {Cheese v. Lovejoy, 
 (C.A.) 2 P. D. IGl ; 40 L. J. P. D. .1^ A. 67 ; 25 W. R. 453 ; 37 
 L. T. 294.) Such exceptions must be tendered before verdict, 
 so as to give the judge an opportunity of reforming his direc- 
 tion, if he thinks fit. {Ilutter v. Chaxmian, 8 M. & W. 38 ; 
 Armstrong v. Leivls, 2 Cr. & M. 274.) 
 
 Verdict. 
 
 The jury now consider their verdict. They should look to 
 the whole of the publication to see whether it is calculated to
 
 553 PRACTICE AND EVIDENCE. 
 
 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." {Fer 
 Alderso7i, B., in Chahners v. Payne, 2 C. M. & R. 159 ; see 
 also Hunt v. Algar and others, 6 C. & P. 245 ; Pi. v. Lambert 
 V. Perry, 2 Camp. 398.) 
 
 Where the words are actionable per se, the amount of damages 
 is entirely a matter for the jury. They may consider the libel 
 itself, the mode and extent of publication, and the express 
 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. 505.) The jury must assess the damages 
 once for all, as no fresh action can be brought for any subse- 
 quent damage. {Fitter v. Veal, 12 Mod. 542 ; B. N. P. 7 ; 
 Gregory and another v. Williams, 1 C. & K. 5G8.) 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. 195 ; 12 Moore, 418.) 
 
 Judgment. 
 
 The judge at the trial may 
 
 (1.) direct that judgment be entered for any or either party, 
 or (2.) adjourn the case for further consideration, 
 or (3.) leave any party to move for judgment. 
 No judgment shall be entered after a trial without the 
 order of a Court or judge. (Order XXXVI. r. 22a, R. S. C. 
 December, 1876, r. 3.) From the repeal of the former rule 22, 
 it may be inferred that the judge should no longer enter 
 judgment, subject to leave to move. At all events it is not 
 the practice now to give either j^arty leave to move. 
 
 If the judge direct judgment to be entered for either jmrty 
 absolutely, then if the officer present at the trial be not the 
 proper officer to enter judgment, tlie associate's certificate will 
 be authority to the proper officer (Order XXXVI. r. 24), a full 
 copy of the pleadings being delivered to him, to enter judgment 
 in a book kept for the purpose. (Order XLI. r. 1.) And there- 
 upon execution will issue forthwith, unless it be stayed. (Order 
 XLII. r 15.) There is no need to ask for speedy execution.
 
 COSTS. 553 
 
 Where the judge leaves either party to move for judgment, the 
 plaintiff should set the case down and give notice of motion 
 within ten days after the trial ; if he omit to do so the defendant 
 may do so himself. (Order XL. r. 3.) At least two clear days' 
 notice of motion must be given. (Order LIII. r. 4 ; Ron pell v. 
 Farsons, 24 W. R. 2G9 ; 34 L. T. 56.) 
 
 If the plaintiff move for judgment, the judge has full power on 
 that motion to direct judgment to be entered for the defendant. 
 
 Further considerations and motions for judgment must now 
 take place before the judge who tried the case. (Appellate 
 Jurisdiction Act, 1S7G, 39 & 40 Vict. c. 59, s. 17 ; Order 
 LVIlA., K S. C, December, 1876, rr. 8, 9.) They are in fact 
 but a prolongation of the Nisi Prius trial. The judge has no 
 longer any power, apparently, to reserve any point for the con- 
 sideration of a Divisional Court, or to direct any point to be 
 ars'ued before a Divisional Court (Judicature Act, 1873, s. 46 ; 
 1875, s. 22). He must decide the point himself one way or the 
 other, and leave the parties to appeal if they wish to do so. 
 
 Costs. 
 
 There is no longer any need to ask for a certificate for the 
 general costs of the suit. The successful party now gets his 
 costs as of right, unless the judge deprives him of them for good 
 cause shown (Order LV. r. 1, ante, c. XI. p. 334). 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 the libel : the party who has required these will have to pay 
 for them unless he obtain an order for their allowance on taxa- 
 tion before judgment is entered, ante, p. 337. If a married 
 woman having general separate estate fail in an action of libel, 
 she may be condemned in costs, although her husband was joined 
 with lier as a co-plaintiff or a co-defendant. {Neivton and wife 
 V. Boodle and others, 4 C. B. 359 ; 18 L. J. C. P. 73 ; Morris 
 v. Freeman, 3 P. D. 65 ; 47 L. J. P. D. & A. 79 ; 27 W. R. 62 ; 
 39 L. T. 125 ; and sec the remarks of Jcsscl, M. R., in Besant v. 
 Wood,, 12 Ch. D. 630 ; 40 L. T. 453.)
 
 554 PRACTICE AND EVIDENCE. 
 
 Froceediiigs after Judgment. 
 
 After a judgment has been entered by order of the judge, 
 there seem now to be only three possible courses open to the 
 unsuccessful party. He may 
 
 (1.) Move in the Divisional Court for a nev,^ trial under 
 Order XXXIX. 
 
 (2.) Move in the Court of Ajjpeal to set aside the judgment 
 on the ground that on the verdict^ as entered, the judgment 
 directed was wrong (Order XL. r. 4«, R. S. C, Dec. 1876, r. 7), 
 or upon exceptions annexed to the record ; Judicature Act, 
 1875, s. 22, ante, p. 551. 
 
 (3.) Apply to a Master at Chambers under Order XLII. r. 22, 
 for a stay of execution or for other relief against such judgment, 
 upon the gi'ound of facts which have arisen too late to be 
 pleaded. This is in lieu of the antiquated proceeding by 
 audita quereld : but it can very seldom be necessary to make 
 such an application, regard being had to the extensive 
 powers given by Order XX. of pleading matters which have 
 arisen since action brought. 
 
 There seems to be now no case in which, after judgment 
 entered, a party can move the Divisional Court for judgment. 
 Order XL. r. 2 is practically abolished by Order XXXVI. r. 22rt, 
 R. S. C, Dec. 187G, r. 3, Avhich seems to take away from 
 the judge the power of ordering judgment to be entered subject 
 to leave to move. Motions for judgment must in fact be made 
 either to the judge who tried the case, .sitting alone, or to the 
 Court of Appeal. See Order LVIlA., R. S. C, Dec. 1876, rr. 8, 9, 
 which altered the previous practice in order to give effect to the 
 Appellate Jurisdiction Act, 1876, 89 & 40 Vict. c. 59, s. 17. 
 Motions for judgment iion obstante veredicto and motions in 
 arrest of judgment are now obsolete, if not abolished. Nor is 
 any repleader any longer necessary, as by Order XL. r. 10 tLe 
 Court has power, upon a motion for judgment or for a new 
 trial, to direct issues or questions to be tried or determined. 
 
 There has sometimes been a difficult}^ in deciding whether 
 application should be made to the Divisional Court or to the 
 Court of Appeal. The most obvious test appears to be this : — 
 Does the party ajjplying complain of the verdict, or of the 
 judgment entered on that verdict? If his contention is that
 
 PROCP^EDJXGS AFTER JUDGMENT. 555 
 
 accepting the findings of tlie jury as correct, still the judgment 
 as entered is wrong, then he must move the Court of Appeal. 
 If on the other hand he complains of the verdict as recorded, 
 then, although the judge directed such verdict, 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 ; 2G W. R 
 745 ; 38 L. T. 742.) 
 
 Whenever the judgment is right, if the verdict is right, the 
 application must be to the Divisional Com't ; for the Court of 
 Appeal has no power in the first instance to review the finding 
 of a jury. (Davies and others v. Felix and others (C. A.), 4 Ex. 
 D. 32 ; 48 L. J. Ex. 3 ; 27 W. R. 108 ; 39 L. T. 322.) Thus if 
 on the trial of an action for libel, the counsel for the defendant 
 asks the judge to nonsuit the plaintiff or to direct a verdict for 
 the defendant, on the ground that there is no evidence to go to 
 the jury in support of the plaintiff's case, then, whether the 
 judge grants or refuses this application, the only course by 
 Avhich his decision can be reviewed is by motion for a new trial 
 in the Divisional Court. (Davies and others v. Felix and 
 others, supra; Capital and Counties Ba7ik v. Henty and 
 Sons, 28 W. K 490 ; 42 L. T. 314 ; (C. A.) 5 C. P. D. 514 ; 49 
 L. J. C. P. 830 ; 28 W. R. 851 ; Ftfy v.Wilson (C. A.), 3 Ex. D. 
 359 ; 47 L. J. Ex. 6G4 ; 39 L. T. 83.) A nonsuit is for this 
 purpose considered as of the same effect as a judgment directed 
 by the judge in the defendant's favour : although in the former 
 case there is no finding by the jury. (Etty v. Wilson, siqjrd.) 
 But Thesiger, L.J., guarded himself from giving any opinion as 
 to the case where a nonsuit is directed on admitted facts 
 entered on the judge's notes. Here, as the jury decide nothing, 
 it is substantially a trial by the judge alone, and if so, the 
 ajDplication should perhaps be made to the Court of Appeal. 
 
 These distinctions are important, because the parties, as a 
 rule, do not make up their mind to move for a new trial till 
 after it is too late to make the application, and then endeavour 
 to appeal instead. But apart from the rules as to time, the 
 matter is one rather of name than of substance. For when, in an 
 action tried by a jury, the judge has given judgment for one 
 party on the findings of the jury, and the other party has, 
 without appealing from such judgment, moved the Divisional 
 Court for a new trial either un the ground ui' misdirection by
 
 556 PRACTICE AND EVIDENCE. 
 
 the judge, or on the ground that the findings are against the 
 weight of evidence ; the Divisional Court has power under 
 Order XL. r. 10, on the argument, 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 judg- 
 ment at the trial cannot stand, and if they have before them 
 all the materials necessary for finally determining the questions 
 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 that Court is dissatisfied with the findings as to 
 any matter of fact, it may, in a proper ease, set aside the 
 verdict and the judgment entered thereon, and direct that a 
 new trial shall be had. (Order LVIII. r. oa, R. S. C, April, 
 1879, r. 8.) 
 
 Application for a Keiv Trial. 
 
 Applications for new trials shall be by motion [for an order] 
 calling on the opposite party to show cause at the expiration of 
 eight days from the date of the order, or so soon after as the 
 case can be heard, why a new trial should not be directed. 
 Such motion shall be made within the times following, unless 
 the Court, or a judge, shall enlarge the time : — 
 
 An application to a Divisional Court for a new trial, if the 
 trial has taken place in London or Westminster, shall be made 
 within four days after the trial, or on the first subsequent day 
 on which a Divisional Court, to which the application may be 
 made, shall have actually sat to hear motions. If the trial has 
 taken place elsewhere than in London or Middlesex, the motion 
 shall be made within seven days after the last day of sitting on 
 the circuits for England and Wales during which the action 
 shall have been tried, or within the first four days of the next 
 following sittings, if such day occurs during or within a week 
 immediately before vacation. (Order XXXIX. r. 16, R S. C, 
 March, 1879, r. 6 ; Grant v. Holland, 49 L. J. Q. B. 800 ; 29 
 W. R .32.) 
 
 Where an action is commenced in one of the Common Law 
 Divisions, and the trial takes place before a judge of another 
 Division, tlie cause shall from that time be transferred to the 
 Division of which such judge is a member. (Order V. r. 4«, E.
 
 APPLICATION FOR A NEW TRIAL. 557 
 
 S. C, March, 1879, r. 3.) Any application for a new trial must 
 be made to a Divisional Court of that division, if the trial was 
 by a jury. If, however, the trial was by the judge without a 
 jury, the application for a new trial must be made direct to the 
 Court of Appeal. (Order XXXIX. r. \a, R. S. C, Dec. 1876, 
 
 If a i^rimd facie case be made out, an order nisi will be 
 granted, a copy of whicli must be served on the opposite side 
 within four days. (Order XXXIX. r. 2.) Such order nisi will 
 be a sta}^ of proceedings unless a special order be made to the 
 contrary (ib. r. 0). The grounds on which such order is granted 
 should be stated in it. After full argument the order wil] be 
 either discharged or made absolute. 
 
 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 gi^ound of mis- 
 direction or surprise. That no notice of trial was given, or that 
 the jui^y misbehaved, may also be ground for a new trial. 
 
 But a new trial will not be granted on the ground of mis- 
 direction or improper admission or rejection of evidence, if the 
 party showing cause can satisfy the Court that no substantial 
 wrong or miscarriage has been thereby occasioned. (Order 
 XXXIX., r. 3 ; 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 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 the order nisi must be served on 
 all. (Price v. Harris, 10 Bing. 331 ; Purnell v. G. W. By. Co. 
 and Harris (C. A.), 1 Q. B. D. 636 ; 45 L. J. Q. B. 687 ; 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 evidence ; 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. (Odger v. Mortimer 
 28 L. T. 472.) And whenever the words are fairly susceptible 
 both of an innocent and of an actionable meaning, the findino-
 
 558 PRACTICE AND EVIDENCE. 
 
 of the jury is final ; whicliever construction tliey may have 
 placed upon the words will be upheld. {Per Cur. in Burgess 
 V. Bracher (1724), 8 Mod. 240; 2 Ld. Eaym. 1366; 1 Stra. 
 594 ; Walter v. Beaver, and Naden v. MicocJie (1684), 3 Lev. 
 166; Sir T. Jones, 235 ; 2 Ventr. 172; 3 Salk. 325.) ''The 
 Court never, or very rarely, grants new trials in actions for 
 words." (Per Holt, GJ., Anon (1696), 2 Salk. 044.) 
 
 A new trial will, however, be granted when the matter com- 
 plained of is clearly libellous, and there is no question as to the 
 fact of publication, 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, a7ite, p. 130; Haheivell v. Ingram, 2 C. L. 
 R. 1397.) But unless the jury are manifestly wrong, unless 
 the Court can say with certainty that there has been a mis- 
 carriage 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. {Hearnc v. Stoivell, 12 A. & E. 719 ; 
 11 L. J. Q. B. 25 ; 4 P. & D. 696.) 
 
 A new trial will not be granted on the ground that the jur}'- 
 expressed an opinion during the judge's summing-up inconsis- 
 tent with their subsequent verdict. {Napier v. Daniel and 
 another, 3 Bing. N. C. 77 ; 3 Scott, 417.) 
 
 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. Still there is no inflexible rule on the subject. 
 Scroggs, J., indeed, contended in Lord Townshend v. Dr. 
 Hughes, 2 Mod. 150, that the Court had no power to order a 
 new trial on the ground that the damages (4000Z.) were ex- 
 cessive ; but Atkins, J., was of the contrary opinion, and gave 
 an instance in Avhich the Court of Queen's Bench had done 
 so. The Court however declined to exercise their power botli 
 in that case and in Highmore v. Earl and Countess of Har- 
 rington, 3 C. B. (N. S.) 142, where 750?. damages were awarded. 
 A new trial will only be granted where the amount of damages 
 is so large as to satisfy the Court that the jury acted per- 
 versely and with partiality, or grossly misconceived the case 
 on a matter of principle. Whenever there is any evidence
 
 APPLICAT/ON FOR A lYE]V TRIAL. 559 
 
 of express malice, the jury are entitled to give vindictive 
 damages. 
 
 So, too, there is no inexorable rule of practice which pre- 
 cludes 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 rule for 
 a new trial was made absolute, where the smallness of the 
 amount recovered (j(7.) shewed that the jury had made a com- 
 promise, 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. 1G2 ; 31 L. T. 677.) See, however, Forsdihe 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 Rendall v. Ha}jivard, 5 Bing. N. C. 424, which 
 lay down the rule that where there has been no misconduct on 
 the part of the jury, no error in the calculation of figures, no 
 mistake in law on the part of the judge, a new trial will not 
 lie gi'anted. 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. 
 Grign, 1 M. & Gr. 796; 2 Scott' N. R. 1.5 ; Kilmore y. Ah- 
 doolah, 27 L. J. Ex. 307 ; Forsdike and wife v. Stone, suprd.) 
 The whole law on this subject has recently been discussed in 
 PhillijJS V. London and S. W. By. Co., 4 Q. B. J). 406; 48 L. 
 J. Q. B. 693 ; 27 W. R. 797 ; 40 L. T. 813 ; (C.A.) 5 Q. B. D. 
 78 ; 49 L. J. Q. B. 223 ; 28 W. R. 10 ; 41 L. T. 121. 
 
 That either judge or jury prematurely expressed a strong 
 opinion as to the case is no ground for a new trial. (Lloyd 
 V. Jones, 7 B. & S. 47-5). It would be otherwise if a jnior before 
 being .sworn had expressed a determination to give a verdict in 
 favour of the plaintiff. {Rariiad<je v. Ryan, 9 Bing. 333 : 2 
 Moo. & Sc. 421.) 
 
 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 ex- 
 trinsic to the record and the judge's notes, and consequently 
 can only be made to appear by affidavit ; and hero we have
 
 56o PRACTICE AND EVIDENCE. 
 
 no affidavit of surprise, in the sense required by tlie practice 
 of the Court." {Vev Maule, J., in Hoare v. Silvei'Iock (No. 2), 
 (18.-)0), 9 C. B. 22.) 
 
 The question whetlier 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. (Risk Allah Bey v. 
 Johnstone, 18 L. T. 020.) So, too, a verdict cures a misjoinder 
 of parties, e.g., where husband and wife are jointly sued in a 
 case where the husband should be sued alone. (Burchei' v. 
 Orchard (1G52), Sty. 849 ; 1 Roll. Abr. 781.) 
 
 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 makes no order, they follow the event. [Green 
 v. Wright, 2 C. P. D. 354 ; 40 L. J. C. P. 427 ; 25 W. R. 502 ; 
 36 L. T. 355 ; Field v. 0. K. Rij. Co., 3 Ex. D. 201 ; 20 W. 
 R. 817 ; 39 L. T. 80 ; Harris v. Petherick (C. A.), 4 Q. B. D. 
 Oil ; 48 L. J. Q. B. 521 ; 28 W. R. 11 ; 41 L. T. 140.) 
 
 If an order 7iisi be refused, the applicant must apply within 
 four days, if at all, to the Court of Appeal (Order LVIII., 
 r. 10). An order nisi gra,nied in the Court of Appeal on such 
 an application will in itself be no stay of proceedings. (God- 
 dard v. Thompson (C. A.), 47 L. J. Q. B. 382 ; 26 W. R. 362 ; 
 38 L. T. 100.) If the Divisional Court makes absolute an 
 order for a new trial, an ajopeal from this decision must be 
 brought, if at all, within twenty-one days from the time when 
 the order absolute is entered and recorded. [lb., r. 15. High- 
 ton V. Treherne, 48 L. J. Ex. 107 ; 27 W. R. 245 ; 39 L. T. 
 411.) 
 
 Where the trial has been before a judge without a jury, an 
 application for a new trial, if made at all, must in all cases be 
 made direct to the Court of Appeal. (Order XXXIX. r. l^., 
 R. S. C, Dec. 1876, r. 5 ; Oastler v. Henderson (C. A.), 2 Q. B. 
 D. 575 ; 40 L. J. Q. B. 007 ; 37 L. T. 22.) As a rule, however, 
 the application should be by way of appeal, and not by motion 
 for a new trial (Pannell v. Nunn (C. A.), 28 W. R. 940 ; 
 Potter V. Cotton (C. A.), 5 Ex. D. 137 ; 49 L. J. Ex. 158 ; 28 
 W. R. 100; 41 L. T. 460,) for the Court of Appeal has power 
 upon an appeal to review the judge's findings as to the facts, 
 without a rule for a new trial having been expressly asked for
 
 PROCEEDINGS EN THE COURT OE APPEAL. 561 
 
 or obtained. The only exception to this rule is in the case of 
 surprise : then a new trial should be asked for. {Jones v. Hough 
 (C. A.), 5 Ex. D. 115 ; 42 L. T. 108.) If, however, the issues 
 were settled before the case was heard by the judge, or if the 
 judge first tried the issues of fact, and subsequently there was 
 a separate determination of the law applied to those facts, then 
 perhaps there should be a motion for a new trial. {Krehl v. 
 Burrell (C. A.), 10 Ch. D. 420 ; 48 L. J. Ch. 252 ; 27 W. R. 
 234 ; 39 L. T. 4G1 ; as explained by Lowe v. Lowe (C. A), 10 
 Ch. D. 432 ; 48 L. J. Ch. 383 ; 27 W. R. 309 ; 40 L. T. 236 ; 
 and DoUman v. Jones, 12 Ch. D. 553 ; 27 W. R. 877 ; 41 L. T. 
 258.) 
 
 If an action commenced in the Chancery Division be tried by 
 a judge and jury in one of the Common Law Divisions, it is ipso 
 facto transferred to the Division to which that judge belongs, 
 and the application for a new trial must be made to a Divisional 
 Court of that Division ; for such a case is within Order XXXIX. 
 r. l(t, R. S. C, Dec. 187G, r. 5 (though not Avithin the Avords of 
 Order V. r. 4ft, R. S. C, March, 1879). {Hunt v. City of 
 London Real Property Co., 3 Q. B. D. 19 ; 47 L. J. Q. B. 42, 
 51 ; 26 W. R. 37 ; 37 L. T. 344 ; Jones v. Baxter (C. A.), 5 Ex. 
 D. 275 ; 28 W. R. 817.) But this does not apply to an action 
 in which an issue has been directed by a judge of the Chancery 
 Division. The action in that case still remains attached to the 
 Chancery Division, {Jenkins v. Morris (C. A.), 14 Ch. D. 
 G74 ; 49 L. J. Ch. 392.) 
 
 Proceedings in the Court of Appeal. 
 
 If no exception be taken at the trial, and annexed to the 
 record {ante, p. 551), the only rule which authorises a party 
 to come direct from Nisi Prius to the Court of Appeal appears 
 to be the following : — 
 
 Where, at or after the trial of an action by a jury, the judge 
 has directed that any judgment be entered, any party may, 
 without any leave reserved, apply to set aside such judgment 
 and enter any other judgment, on the ground that the judg- 
 ment directed to be entered is wrung, by reason of the 
 judge having caused the finding to be wrongly entered with
 
 562 PRACTICE AND EVIDENCE. 
 
 reference to the finding of the jury upon tlie question or 
 questions submitted to them. 
 
 Where, at or after the trial of an action before a judge, the 
 judge has directed that any judgment be entered, any party 
 may, without any leave reserved, apply to set aside such judg- 
 ment and to enter any other judgment, upon the ground that, 
 upon the finding as entered, the judgment so directed is wrong. 
 
 An application under this rule shall be to the Court of 
 Appeal. (Order XL. r. 4a; R. S. C, Dec. 1876, r. 7.) 
 
 An application under this rule must be made by motion 
 upon notice, not as in the case of a motion for a new trial by an 
 ex 2^arte application for an order nisi. (Order LIII. rr. 2, 3 ; 
 Order LVIII. r. 2 ; Jones v. Davis (C. A.), 36 L. T. 415 ; W. N. 
 1877, p. 86.) It may be made at any time within a year after 
 the party seeking to make the motion first became entitled so 
 to do. (Order XL. r. 9.) He apparently becomes so entitled 
 the moment the jury are discharged. {Shaw v. Hope, 25 W. R. 
 729.) Fourteen days' notice of motion must be given under 
 Order LVIIL r. 4 ; Foster v. Roberts, W. N. 1877, p. 11. 
 
 Either party may also, of course, appeal from any decision of 
 the Divisional Court, not being an order made by consent or as 
 to costs merely. (Jad. Act, 1873, s. 49.) Such appeal shall 
 be by way of rehearing, and shall be brought, by notice of 
 motion, within twenty-one days from the date of an inter- 
 locutory order, or within a year from a final judgment. (Order 
 LVIII. rr. 2, 15.) An order overruling or allowing a demurrer, 
 is a final judgment, as it is a conclusive determination of one 
 part of the case, if not the whole. [Troivell v. Shenton (C. A.), 
 8 Ch. D. 318, 321 ; 47 L. J. Ch. 738 ; 26 W. R. 837; 38 L. T. 
 369.) An order making absolute an order nisi for a new trial 
 is an interlocutory order, the rights of the jDarties not being 
 finally determined thereby. {Highton v. Trelterne, 48 L. J. 
 Ex. 167; 27 Vv^ R. 245 ; 39 L. T. 411.) It might be contended 
 that an order discharging such an order nisi was a final judg- 
 ment, so as to enable the party desiring a new trial to appeal at 
 any time within a year. But in Standard Discount Co. v. 
 La Grange (C. A.), 8 C. P. D. 71 ; 47 L. J. C. P. 3 ; 26 W. R. 
 25 ; 37 L. T. 372, Brett, L. J., lays down a rule that no order can 
 be final, unless the application on which it was granted, would 
 have deternnncd tlie action, wJticJtevcr way it icrts decided. 
 
 I
 
 PROCEEDINGS IN THE COURT OF APPEAL. 563 
 
 If this be so, then an order discharging an order nisi for a new 
 trial will be interlocutory, because an order making it absolute 
 would have been interlocutory. But the point has not yet been 
 decided, and it would be safer not to raise it, if it can be 
 avoided. Sundays are included within the twenty-one days. 
 {Ex parte Viney (C. A.), 4 Ch. D. 794 ; 4G L. J. Bank. SO ; 25 
 W. R. 364 ; :3G L. T. 43.) An extension of the time will only 
 be granted under very special circumstances. [Craig v. PhillijjS 
 (C. A.), 3 Ch. D. 249 ; 47 L. J. Ch. 239 ; 2G W. R. 298 ; 37 L. T. 
 772 ; ]\]cAndreiu v. BarJ^er (C. A.), 7 Ch. D. 701 ; 47 L. J. 
 Ch. 340 ; 26 W. R. 317 ; 37 L. T. 810 ; In re Mansel, Rhodes 
 V. Jenkins (C. A.), 7 Ch. D. 711 ; 47 L. J. Ch.8 70 ; 26 W. R. 
 361 ; 38 L. T. 403 ; Taylors case (C. A.), 8 Ch. D. 643 ; 47 
 L. J. Ch. 701 ; 20 W. R. 001 ; 38 L. T. 587 ; Collins v. Vestry 
 of Paddington (C. A.), 5 Q. B. D. 368 ; 49 L. J. Q. B. 264 ; 28 
 W. R. 588 ; 42 L. T. 573.) That the appellant's legal adviser 
 misconstrued the rules of the Supreme Court, is no ground for 
 an extension of the time for appealing. [International Financial 
 Soc. V. City of Moscoiu Gas Co. (C. A.), 7 Ch. D. 241 ; 47 L. J. 
 Ch. 258 ; 26 W. R. 272 ; 37 L. T. 736 ; Higldon v. Trcherne, 
 suprd.) 
 
 As to the notice of motion and the amendment thereof, see 
 Order LVIII. rr. 3, 4 ; and In re Stockton Iron Furnace Co. 
 (C. A.), 10 Ch. D. 335, 348 ; 48 L. J. Ch. 417 ; 27 W. R. 433 ; 
 40 L. T. 19. 
 
 As to setting down the appeal for hearing, see Order LVIII. 
 r. 8 ; In re National Funds Insurance Co. (C. A.), 4 Ch. D. 
 305 ; 46 L. J. Ch. 183 ; 25 W. R. 151 ; 35 L. T. 689 ; Wehh v. 
 Mansel (C. A.), 2 Q. B. D. 117 ; 25 W. R. 389 ; In re Barker, 
 Goodharne v. Fothergill (C. A.), 10 Ch. D. 613 ; 27 W. R. 587 ; 
 40 L. T. 408. 
 
 If the appellant be a foreigner residing abroad, or if the 
 appeal be unreasonable or vexatious, the appellant may be 
 ordered to give security for costs on an application made by 
 the respondent within a reasonable time on notice of motion. 
 [Grant v. Banque Franco-Egyptienne (C. A.), 2 C. P. D. 430 ; 
 47 L. J. C. P. 41 ; 26 W. R. 68.) But such an application must 
 always be made promptly. [Corporation of SaXtash v. Goodman 
 and another, 43 L. T. 464 ; W. N. 1880, p. 1(57.) The insolvency 
 of the appellant is not alone a sufficient ground, if the question 
 
 002
 
 S64 PRACTICE A\'D EVIDENCK. 
 
 raised by the appeal be a doubtful one, well Avortliy argument 
 in the Court of Appeal. (Rourke v. White Moss Colliery Co. 
 (C. A.), 1 C. P. D. 550, 562.) 
 
 An appeal is no stay of execution or of proceedings, unless 
 the Court below, or failing that, the Court of Appeal, otherwise 
 orders. (Order LVIII. rr. 16, 17 ; Goddard v. Thompson 
 (C. A), 47 L. J. Q. B. 382 ; 26 W. R. 302 ; 38 L. T. 160 ; 
 Wilson V. Ghm-clc (C. A.), 11 Ch. D. 570; 48 L. J. Ch. 090; 
 27 W. R. 843 ; 12 Ch. D. 454 ; 28 W. K 284 ; 41 L. T. 50 ; 
 Grant v. Banque Franco-Egyptienne (C. A.), 3 C. P. D. 202; 
 47 L. J. C. P. 455 ; 26 W. R. 669 ; 38 L. T. 622.) 
 
 The respondent may give notice that he intends to apply upon 
 the hearing of the appeal that the order appealed against be 
 varied. He need not give any notice of motion by way of cross- 
 appeal. (Order LVIII. rr. 6, 7 ; Ex parte Payne, in re Cross, 
 11 Ch. D. 539, 550 ; 27 W. R 808 ; 40 L, T. 563; Ralph v. 
 Carrick, 11 Ch. D. 873; 28 W. R. 07; 40 L. T. 505.) 
 
 If the appellant does not appear at the hearing, the respon- 
 dent is entitled to have the appeal dismissed with costs, without 
 giving any proof of the service of notice of appeal, (^.r pa?'^e 
 Loivs, in re Lotos (C. A.), 7 Ch. D. 160; 47 L. J. Bank. 24; 
 26 W. R. 229 ; 37 L. T. 583.) 
 
 At the hearing, the Court of Appeal has all the powers of a 
 Court of first instance as to amendment or otherwise. The 
 Court may, in its discretion, receive further evidence as to any 
 matter of fact ; but special grounds must be shown and special 
 leave obtained for the production of such further evidence after 
 there has been a full hearing on the merits at Nisi Prius. 
 (Order LVIII. r. 5.) Due notice must be given to the respon- 
 dent that appellant intends to apply at the hearing to adduce 
 fresh evidence. (Hastie v. Ilastie (0. A.), 1 Ch..D. 562; 45 
 L. J. Ch. 288 ; 24 W. R. 564 ; 34 L. T. 13 ; Dicks v. Brooks, 13 
 Cb. D. 652 ; 28 W. R. 525 ; 43 L. T. 71.) As to what are 
 sufficient special grounds, see In re Chennell (C. A), 8 Ch. D. 
 504—507 ; 47 L. J. Ch. 583 ; 26 W. R. 595 ; 38 L. T. 494 ; 
 Bigshy v. Dickinson (C. A.), 4 Ch. D. 24 ; 46 L. J. Ch. 280 ; 
 25 W. R. 89 ; 35 L. T. 679. 
 
 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.
 
 COUNTY COURT PROCEEDINGS. 565 
 
 (Order LVIII. r. 13 ; Laming v. Gee (C. A.), 28 W. R. 217.) 
 The cost of printing the evidence below will be allowed if it is 
 very voluminous. (Order LVIII. r. 12 ; Bigshy v. Dickinson, 
 infra.) If, upon the hearing of an appeal from a judgment 
 pronounced by a judge or Court on the verdict or finding of a 
 jury, or of a judge Avithout a jur}^ it shall appear to the Court 
 of Appeal that a new trial ought to be had, it shall be lawful 
 for the said Court of Appeal, if it shall think fit, to order that 
 the verdict and judgment shall be set aside, and that a new 
 trial shall be had. (Order LVIII. r. .5a, R. S. C, March, 
 1879.) 
 
 The successful party will, as a rule, obtain costs. {Per 
 James, L. J., 1 Ch. I). 41, 113 ; 4-5 L. J. Ch. 1.) When the 
 respondent gives notice of his intention to contend that the 
 order appealed from be varied, and the appeal is dismissed, the 
 appellant will have to pay all costs which he cannot show to 
 have been occasioned solely by the respondent's notice. {The 
 Lauretta, 4 P. D. 2.5 ; 48 L. J. Prob. 55 ; 27 W. R. 902 ; 40 
 L. T. 444.) A special order must be obtained before the judg- 
 ment of the Court of Appeal is entered, allowing the costs of 
 shorthand-writers' notes or of printing the evidence. (^67i- 
 vjorth V. Oiitram, 9 Ch. D. 483 ; 27 W. R. 98 ; 39 L. T. 441 ; 
 In re Silver Lead Ore Co., 10 Ch. D. 307, 312; Executors of 
 Sir Roiulayid Hill v. Metropolitan District Asylum, 49 
 L. J. Q. B. CG8; 43 L. T. 462; Weekly Notes, 1880, p. 98; 
 Bigshy v. DicJcinson (C. A.), 4 Ch. D. 24 ; 40 L. J. Ch. 280 ; 
 25 W. R. 89, 122 ; 35 L. T. G79.) 
 
 As to a further appeal to the House of Lords, see the Appel- 
 late Jurisdiction Act, 1876 (39 & 40 Vict.c. 59), and the Stand- 
 ing Orders of August, 187G, Weekly Notes, 1876, Part II., 
 p. 475—7 ; as amended. Weekly Notes, 1877, Part II., p. 57. 
 
 County Court Proceedings. 
 
 No action of libel or slander can be commenced in the County 
 Court (9 & 10 Vict. c. 95, s. 58), except by consent (19 & 20 
 Vict. c. 108, s. 23). I presume that the wor<l " slander" includes 
 "slander of title." In cases of a tiifliiig nature, it may be
 
 566 PRACTICE AND EVIDENCE. 
 
 desirable that Loth parties should consent to such a course, 
 especially 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 (in the form given as 
 No. 4.5), which must be filed ; and thereupon a plaint will be 
 entered and a summons issued, and all further proceedings will 
 be taken as in an ordinary County Court case. (County Court 
 Order XXXVII. r. 46.) 
 
 But an action of libel or slander, whatever the amount of 
 damages claimed, may be transferred to the County Court, 
 under s. 10 of the 30 & 81 Vict. c. 142, ante, p. 4G8. The 
 defendant may apply to a master at chambers under this 
 section, at any stage of the proceedings, on an affidavit, showing 
 a good defence on the merits, that the plaintiff has no visible 
 means, and that there will be a saving of costs, and greater 
 convenience in trying in the County Court. But no order will 
 be made (1) if the action is one fit to be prosecuted in the 
 Superior Court, because involving important points of law, or 
 because it is a test action, &c. ; or (2) if the jDlaintiff can prove 
 that he has visible means of paying costs. " Visible " means 
 tangible, such i^roperty as the defendant could reach in the 
 event of his obtaining judgment for his costs. {Counsel v. 
 Garvie, Ir. R. 5 C. L. 74 ; Watson v. llcCann, 6 L. B. Ir. 21 ; 
 and see Syl^es v. Sykes, L. B. 4 C. P. 645 ; 38 L. J. C. P. 281 ; 
 17 W. B. 799 ; 20 L. T. 663.) The i^laintiff also generally 
 denies that there will be any saving of costs or convenience in 
 trying in the County Court. It is practically useless for a 
 defendant to appeal from the master's order. {Palmer v. 
 Roberts, 22 W. B. 577, n. ; 20 L. T. 403.) The plaintiff may 
 appeal, if the order is obviously wrong. {Jennings and tuife v. 
 London General Omnibus Co., 30 L. T. 266 ; Owens v. 
 Woosman, L. B. 3 Q. B. 469 ; 9 B. & S. 243 ; 37 L. J. Q. B. 
 159 ; 16 W. B. 932 ; 18 L. T. 357 ; Holmes v. Movrntstephen, 
 L. B. 10 C. P. 474 ; 33 L. T. 351.) 
 
 The plaintiff must now lodge the writ and other f>roceedings 
 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. {^Yelply v. Buhl (C. A.), 3 Q. B. D. 80, 253 ; 47 L. J. 
 Q. B. 151; 26 W. B. 300; 38 L. T. 115.) As soon as the
 
 COUNTY COURT PROCEEDINGS. S^7 
 
 necessary documents are filed, the action becomes a County 
 Court cause, as completely as if it were one duly commenced 
 therein. {Moody v. Steward, L. R. G Ex. 35 ; 40 L. J. Ex. 25 ; 
 19 W. R. IGl ; 23 L. T. 4G5.) The County Court judge is 
 bound to assume jurisdiction ; he cannot inquire into the circum- 
 stances under which the order was made. {Blades v. Lawrence, 
 L. K 9 Q. B. 374 ; 43 L. J. Q. B. 133 ; 22 W. R. G43 ; 30 L. T. 
 378.) If the plaintiff omit to lodge the order of transfer within 
 a reasonable time after it is made, the defendant can apply 
 at chambers for an order dismissing the action for want of 
 prosecution. 
 
 The plaintiff is required by County Court Order XX. r. 2, to 
 lodge not only the writ and the order remitting the action, but 
 also a statement of the names and addresses of the several parties 
 to the action, and their solicitors, if any, and a concise statement 
 of the particulars, 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 the plaintiff's particulars. For a 
 form of such statement of the plaintiff's particulars, see Prece- 
 dent No. 50, i:)08t, p. G44. For a form of the Notice of Trial 
 sent to the defendant by the registrar, see Precedent No. 51, 
 post, G45. The registrar shall forthwith indorse on the order 
 the 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 Order XX. r. 3.) 
 
 The defendant upon being served with such a notice of trial 
 may 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 Order 
 XX. r. 2.) 
 
 Thus he may, five clear days at least before the day named in 
 such notice of trial, pay money into Court, either generally or 
 imderLord Campbell's Act, paying a Court fee of \s. in the £ on 
 the amount paid in. (County Court Order XII. rr. 4, 5, Qa, and 
 7.) Or he may set up a counterclaim (County Court Order IX. 
 r. Irt), or plead Not Guilty by statute (?6. r. 14), or a justifica- 
 tion {ih. r. 13), or any other special defence, by sending in to
 
 568 PRACTICE AND EVIDENCE. 
 
 the registrar a concise statement of the grounds of such special 
 defence five clear days at least before the day named for trial. 
 (See Precedents, Nos. 53, 54, ^lost, p. G46.) If the defendant 
 omit to send such statement, he will not be allowed to avail him- 
 self 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 Order IX. r. 7.) 
 So, too, if the defendant intends to avail himself of the provisions 
 of sects. 1 and 2 of G & 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 Order XX. r. 4.) Such notice 
 should be in form No. 55, 'post, p. G47, if under s. 1 of Lord 
 Campbell's Act, in form No. 56, post, p. 648, if under s. 2. 
 
 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 com- 
 plained of is true in substance. (County Court Order IX. r. 13.) 
 Such statement should be in form No. 54, post, p. 647. 
 
 Interrogatories may be administered in the County Court 
 by leave of the registrar. (County Court Order XIII. r. 6.) An 
 affidavit is necessary which may be in form No. 52, post, p. 646. 
 Any objection to answer must be taken in the affidavit in 
 answer. Discovery and inspection of documents may also be 
 obtained as in the Superior Court. 
 
 The action may at the instance of either party be tried by a 
 jury (County Court Order XVI. r. 3) of five (9 & 10 Vict. c. 95, 
 s. 73), upon a demand for one being made in writing to the 
 registrar three clear days before trial. (County Court Order 
 XVI. 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 the necessary steps 
 may be taken for such trial to take place. (County Court 
 Order XVI. r. 2.) 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
 
 OTHER INFERIOR COURTS. 569 
 
 oil his writ, the judge must look rather to the statement of 
 claim than to the writ {Johnson v. Palmer, 4 C. P. D. 258; 27 
 \V. K 941) ; for the endorsement on a writ is superseded by a 
 statement of claim except as to the amount claimed in the 
 action. {Large v. Larrje, Weekly Notes, 1877, p. 198.) Great 
 care must be taken to ask the judge before delivering judg- 
 ment to make a note of any point of law on which either 
 party relies. {Rhodes v. Liverpool Investment Co., 4 C. P. D. 
 42.5 ; Pierpoint v. Cartivright, 5 C. P. D. 139 ; 28 W. R. 583 ; 
 42 L. T. 295 ; Seymour v. Coulson (C. A.), 28 W. R. 604.) 
 
 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 Order XXVIII.) ; any appeal, to the Divisional Court 
 for hearing appeals from Inferior Courts, or if that be not 
 sitting, to a judge at chambers, who must hear the case himself, 
 and not adjourn it to the full Court. {Button v. Woohuich 
 Mutual Building Society, Q. B. D. 88 ; 49 L. J. Q. B. 249 ; 
 28 W. K 136 ; 42 L. T. 54.) 
 
 The costs will follow the event, unless the judge at the trial 
 make any order to the contrary. (County Courts Act, 1846, 
 9 & 10 Yict. 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 sects. 7 or 10 of the County Courts 
 Act, 1807, ihe registrar shall tax the same according to the 
 scale of costs and fees in use in such High Court of Justice. 
 (County Court Order XXXVI. r. 2.) 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 s. 10 
 of 30 & 31 Vict. c. 142. The Superior Court has no jurisdiction 
 to make any order as to costs. {Moody v. Steiuard, L. R. Ex. 
 35 ; 40 L. J. Ex. 25 ; 19 W. R. 101 ; 23 L. T. 405.) 
 
 Other Inferior Courts. 
 The Salford Hundred Court has power to hear all cases of 
 libel or slander arising within the jurisdiction of the Court, 
 provided the damages claimed do not exceed £50. If they 
 exceed £50, it appears that the Court has no jurisdiction even 
 by consent. (9 & 10 Vict. c. cxxvi. ; Farroiu v. Hague, 3 H. & 
 C. 101 ; 33 L. J. Ex. 258.) The costs follow the event, both in
 
 570 
 
 PRACTICE AND EVIDENCE. 
 
 the Salford Hundred Court {Turner v. Heyland, 4 C. P. D. 
 432; 48 L. J. C. P. 535; 41 L. T. 556) and in the Liverpool 
 Court of Passage {King and another v. Hawkesworth, 4 Q. B. 
 D. 371 ; 48 L. J. Q. B. 484 ; 27 W. R G60 ; 41 L. T. 411), and 
 indeed wherever the case is tried by a jury ; subject however 
 to the power reserved to a judge by Order LV. 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 ; but even if it did ajjply, it is a question whether 
 it is not now repealed, as it is not expressly re-enacted by s. 67 
 of the Judicature Act, 1873.
 
 CHAPTEE XYIII. 
 
 PRACTICE AND EVIDENCE IN CRIMINAL CASES. 
 
 This chapter naturally divides itself into two heads :— 
 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. 
 
 Criminal proceedings for libel usually commence by the 
 prosecutor summoning the accused before a police or stipendiary 
 magistrate, or before two justices of the peace. 
 
 The offence of libel is not included in the Vexatious Indict- 
 ments Act (22 & 23 Vict. c. 17). It is not essential, therefore, 
 that the accused should be so summoned ; it is open to the 
 prosecutor to go direct to the grand jury and prefer a bill. But 
 it is very unusual so to do ; for, should the defendant in such a 
 case be ultimately found Not Guilty, the prosecutor may be 
 ordered to pay all the costs of the defence, under 30 & 31 Vict, 
 c. 85, s. 2. 
 
 If the defendant does not obey the summons served upon 
 him, the magistrate will issue a warrant for his arrest ; or he 
 may, if lio think fit, on good cause shown and information 
 sworn, issue a warrant for his apprehension in the first instance 
 without any previous summons. (Butt v. Conant, 1 Brod. & B. 
 548 ; 4 Moore, 195 ; Gow, 84 ; 11 & 12 Vict. c. 42, ss. 1, S.)
 
 572 PRACTICE AND EVIDENCE. 
 
 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 be necessary 
 to call some one acquainted with the circumstances to state that 
 on reading the libel he understood it to refer to the prosecutor. 
 The magisti'ate must decide for himself whether the written 
 matter before him is in point of law a libel. Unle ss it is 
 clearly no libel he will, after proof of publication by the 
 defeiidant, or some agent or servant on his behalf (see ante, 
 pp. 3G2, 385) commit the defendant for trial. But, before 
 doing 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 is a fair and hona fide 
 comment on a matter of public interest, that it does not refer to 
 prosecutor, etc. 
 
 But he may not (unless the information charges him witli_an 
 offence under s. 4 of Lord Campbell's Act) gi ve any eviden ce 
 before the magistrate of the truth of the matters charged in the 
 libel. " 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 defence, 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 further 
 statutory duty imposed on the magistrate, the evidence before 
 him must be confined to the question whether the case is such 
 as ought to be sent for trial, and if he exceeds the limits of that 
 inquiry, he transcends the bounds of his jurisdiction. This case 
 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 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 arrive at 
 that stage, and cannot be put forward before the magistrate. 
 
 J
 
 PROCEEDINGS BEFORE MAGISTRATES. 573 
 
 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 ? He 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 
 statutory conditions are complied with, and they cannot be 
 complied with at that stage of the inquiry." {Per Cockburn, 
 C. J., in R. V. Sir Robert Garden (Labouchere's case), 5 Q. B. D. G, 
 7 ; 49 L. J. M. C. 1 ; 28 W. R 133 ; 41 L. T. 504 ; 14 Cox, C. 
 C. 359.) But when the defendant is charged before the magis- 
 trate with an offence under the 4th section of Lord Campbell'^ 
 Act, that is, with maliciously publishing a defamatory libel 
 knowing the same to be false, there it 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 iJarte ElUssen 
 (not reported), approved by Lush, J. in li. v. Garden, 5 
 Q. B. D. 11, 13.) 
 
 Since the decision in 7^. v. Garden, it has been ruled at the 
 Mansion House that a defendant might not cross-examine his 
 prosecutor " to credit," if the questions asked would also tend 
 to show the truth of the libel. An adjournment for a fortnight 
 wai~granted by Sir Thomas Owden to enable the defendant to 
 apply for a 'mandamus, but no such application was ever made. 
 {R. V. Gripps, Times for November 4th and 18th, 1880.) 
 
 The defendant may himself in every case make a statement 
 before the magistrates, but it is more prudent for him to say 
 nothing, except in cases where he has himself seen or heard 
 something justifying the libel. 
 
 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 for the 
 apprehension of the defendant. (11 & 12 Vict. c. 42, ss. 1, 9.) 
 
 If the magistrate decide to send the case for trial, the 
 defendant is entitled to be bailed. Reasonable, but not ex- 
 cessive, 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 must be committed to 
 prison, but if sufficient sureties come forward, the magistrates 
 have no discretion but to allow the defendant to be at large on 
 bail.
 
 574 PRACTICE AND EVIDENCE. 
 
 In ilic case of an oLsceno libel, the prisoner may be com- 
 mitted for trial to the Quarter Sessions ; in every other case he 
 must be sent to the Assizes or Central Criminal Court. (5 & 
 C Vict. c. 38, s. 1.) 
 
 Cases of libel are 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 trifling cases of libel 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. Sparhe, 1 E. & B. 471 ; 22 L. J. M. C. 67, overruHng 
 the dictum of Lord Camden in R v. ^Yillxes, 2 Wils. 151 ; 4 Burr. 
 2527.) But such power is never exercised, and never should be, 
 for it is clearly a violation of the principle of Fox's Libel Act, 
 that libel or no libel is a question for the jury. 
 
 As to the powers of magistrates, &c., in the case of obscene 
 books and prints, see ante, p. 405, c. XV. In the case of a 
 seditious libel, there is no power to issue a search warrant to 
 seize the author s papers. (Lcaclts case, 11 St. Tr. 307 ; 19 
 Howell's St. Tr. 1002 ; Entich v. Carr'mgton and others, 11 St. 
 Tr. 317 ; 10 Howell's St. Tr. 1029.) 
 
 Indictment. 
 
 Counsel must next be instructed to draft tbe indictment. 
 This requires great care ; as the old rules of pleading apply in 
 all their strictness. The words must be set out verbatim, how- 
 ever great their length. {R. v. Bradlaugh and Besant (C.A.), 
 
 3 Q. B. D. 607 ; 48 L. J. M. Co; 26 W. R 410 ; 38 L. T. 
 118.) Any material variation 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 amendment given by the 14 & 15 Vict, 
 c. 100, s. 1. 
 
 If the words are in a foreign language they must be set out 
 in the original, and a correct translation added. {Zenohio v, 
 Axtell, T. R. 162 ; 3 M. & S. 116 ; R. v. Goldstein, 3 Brod. & 
 B. 201 ; 7 Moore, 1 ; 10 Price, SS ; R. & R. C. C, 473,) The 
 indictment must expressly charge the defendant with " pub- 
 lishing ; " as merely writing a libel is no crime, {R. v. Burdett, 
 
 4 B. & Aid. 95.) It must also declare that the libel was written 
 and published " of and concerning " the prosecutor. The
 
 INDICTMENT. 575 
 
 omission of those words was held fatal in 11. v. Marsden, 4 M. 
 & S. 164. But if it sufficiently appears from other allegations 
 in the indictment to whom the libel refers, it will be held good. 
 {Gregorij 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 s. 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 considerable technicality in 
 criminal pleading; although modern j udges will never be quite 
 so strict as their predecessors. (See ante, pp. 118, 9.) The 
 innuendo can only explain and point the defamatory meaning 
 of the words ; it must not introduce new matter. The judg- 
 ment of De Grey, C.J., in R v. Home (1777), Cowp. 682 ; 11 
 St. Tr. 264; 20 How. St. Tr. 651, "has universally been con- 
 sidered the best and most perfect exposition of the law on this 
 subject." (Per Abbott, C.J., in R v. Buvdett, 4 B. & Aid. 316.) 
 See further as to the office of the innuendo, ante, pp. 100 — 104. 
 Extrinsic facts must be averred where without such averments 
 the libel would appear innocent or unmeaning. {R v. Yates, 
 12 Cox, C. C. 233.) But where the writing on the face of it 
 imports a libel, no innuendo is necessary, nor any introductory 
 averments. {R v. Tutchia (1704), 14 How. St. Tr. 1095 ; 5 
 St. Tr. 527 ; 2 Lord Raym. 1061 ; 1 Salk. 50 ; 6 Mod. 268.) 
 
 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 form." [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 tlie 
 libello us m atter 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 where a letter is sent direct to the prosecutor, and pub- 
 lished to no one else, an intention to provoke the prosecutor and 
 to excite him to a breacli of the peace must be alleged. An 
 allegation that it was sent with intent to injure, prejudice, and 
 aggrieve him in his profession and reputation cannot, in such a 
 case, be supported. {Per Abbott, J., in R. v. Wegener, 2 Stark. 
 245.) So where a letter containing a libel on a married man
 
 576 PRACTICE AND EVIDENCE. 
 
 is sent to his wife "it ought to be alleged as sent with intent 
 to disturb the domestic harmony of the parties," ih. So in the 
 case of a libel on a person deceased, an intent should be alleged 
 to bring contempt and scandal on his family and relations and 
 to provoke them to a breach of the peace. {R. v. Topliam, 4 
 T. R. 12G, ante, p. 376.) 
 
 There is no objection to joining several counts, each for a 
 separate libel, in the same indictment. {Per Lord Ellenborough, 
 in R.N. Jones, 2 Camp. 132.) 
 
 All who are in any way concerned in the composition or 
 publication 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." 
 
 Pleading to the Indictment. 
 When a true bill has been found by the grand jury the 
 defendant 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) Plead guilty ; 
 
 (2) Plead to the jurisdiction of the Court ; 
 
 (3) Plead si^ecially in bar : — 
 (ft) Autrefois acquit ; 
 
 (b) Autrefois convict ; 
 
 (c) Pardon ; 
 
 (4) Demur to the indictment ; 
 
 (5) Plead the general issue — Not Guilty. 
 
 By virtue of 6 & 7 Vict. c. 96, s. 6, he may now also — 
 
 (G) Plead a justitication that the words are true and that it 
 was for the public benefit that they should be published ; see 
 ante, p. 388. 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. 
 
 (7) 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.) 
 
 There is now but little use in demurring to an indict-
 
 PLEADING TO THE INDICTMENT. 577 
 
 ment, except where the words are clearly not libellous in them- 
 selves, and are not reasonably susceptible of the meaning 
 ascribed to them by the innuendo. 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. WdJces, 
 4 Burr. 2508 ; R. v. Holland, 4 T. R. 4o7), or now even an indict- 
 ment (14 & 15 Vict. c. 100, ss. 1, 2, 8, 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 in arrest of judgment after con- 
 viction. (See 14 & 15 Vict. c. 100, s. 25.) Moreover there is 
 this danger in demurring, that the defendant may not demur 
 and plead Not Guilty at the same time {R. v. Odgers, 2 Moo. & 
 E-ob. 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. {R. v. BimiingJiani cC Gloucester Railway Co., 3 Q. 
 B. 223, 233 ; 10 L. J. (M. C.) 13C.) 
 
 The plea of Not Guilty puts the prosecutor to proof of every 
 material allegation in the indictment. The defendant may 
 show under this plea that the libel was a fair and bond fide 
 comment on a matter of public interest, that the occasion of 
 publication was privileged, and may indeed raise every other 
 defence permitted him by law, except 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 Camp- 
 bell's Act. 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 express words of Lord 
 Campbell's Act, a plea of justification under s. 6 shall be 
 pleaded " in the manner now required in pleading a justifica- 
 tion to an action for defamation," as to which see amte, pp. 170, 
 485. But in spite of these words there is no power in any 
 Court to order particulars of such a plea to an indictment or 
 information. If sufficient details be not given in the plea, the 
 ordy course is for the prosecutor to demur. [R. v. Hogrjan, 
 Times, for Nov. 4tli, 1880.) To such a plea the prosecutor may
 
 578 PRACTICE AND EVIDENCE. 
 
 reply generally, denying the whole thereof. (See precedents of 
 such plea and replication in Appendix A., Nos. 70, 71.) 
 
 The other pleas mentioned above are now of rare occurrence. 
 For a plea to the jurisdiction of the Court in a criminal case of 
 libel, and a demurrer thereto ; see R. v. Hon. Robert Johnson, 
 6 East, 583 ; 2 Smith, 591 ; 29 How. St. Tr. 103. 
 
 Ceiilorari. 
 
 An application is frequently made to the Queen's Bench 
 Division for a writ oi certiorari to bring up an indictment for libel 
 from an inferior Court that it may be tried in a Superior Court. 
 The application is frequently made before the indictment is 
 found by the grand jury, the Court being asked to remove " any 
 indictment which may be found." It must of course be made 
 before verdict. In no other way can the Court change the venue 
 in a criminal case. {R. v. Casey, 13 Cox, C. C. 614.) The advan- 
 tages 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. Thoraas, 
 4 M. & S. 442.) But where a private individual applies for the 
 writ, whether prosecutor or defendant, he will have to file 
 affidavits showing some special ground for the removal, arising 
 out of the circumstances of the particular case ; and he must 
 also enter into recognizances to pay all costs incurred subse- 
 quent to the removal, if he be ultimately unsuccessful. (IG & 
 17 Vict. c. 30, ss. 4, 5.) The application may in vacation be 
 made to a judge at chambers. (5 & G Wm. & Mary, c. 11, s. 3.) 
 
 One of several defendants may obtain the writ : if he does, 
 this will remove the indictment as to all. [R. v. Boxall, 4 A. 
 
 6 E. 513.) But the judge who grants the certiorari will 
 require the defendant Avho 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. Foidkes, 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. 
 
 1
 
 CERTIORARI. 579 
 
 y. Morton, 1 Dowl. N. S. .543.) Nor is it enough to show on 
 affidavit that difficult questions of law may arise (i^. v. Joule, 
 5 A. «Ss E. 539), especially if the indictment he in the Central 
 Criminal Court. [R. v. Templar, 1 Nev. & P. 91.) But if it 
 can be proved that a fair and impartial trial of the case cannot 
 be had in the Court below the application will be readily 
 granted. {R. v. Hunt and others, 3 B. & Aid. 444 ; R. v. 
 Palmer, 5 E. & B. 1024.) 
 
 Formerly in cases of misdemeanour the Court made the rule 
 absolute in the first instance. {R. v. Spencer, 8 Dowl. 127 ; 
 R. V. CUijping Sodhury, 3 N. & M. 104.) But now in all 
 cases a rale nisi only is granted, unless there be great urgency. 
 If a rule nisi for such a writ be obtained, the Court below Avill, 
 as of course, order the trial to stand over till the rule can be 
 argued. If the rule be made absolute, either prosecutor or 
 defendant can apply for a special jury. (G 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 days, if not immediately ; but the Court will grant him 
 further time on good cause shown. (GO Geo. III. and 1 Geo. IV. 
 c. 4, ss. 1, 2.) 
 
 The trial may take place, either at bar in the Queen's Bench 
 Division at Westminster, 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. 
 {R. V. Oastler, L. R. 9 Q. B. 132 ; 43 L. J. Q. B. 42 ; 22 W. K 
 490 ; 29 L. T. 830 ; overruling i?. v. Dexvhurst, 5 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. (IG & 17 Vict. c. 30, s. 6.) 
 The sureties may then sue the defendant and recover the 
 amount for which they became bail in an action for money paid 
 at the defendant's request. (Jones v. Orchard, IG C. B. G14 ; 
 24 L. J. C. P. 229 ; 3 W. R. 554.) 
 
 A writ of certiorari may also be applied for to bring up an 
 indictment in order that its validity may be considered and 
 determined, and that it may be quaslied, if proved invalid. 
 Such an ap[jlication must bo made after the bill is found and 
 
 p p 2
 
 58o PRACTICE AND EVIDENCE. 
 
 before judgment has been given thereon, for after judgment 
 has been given, the record can only be removed by writ of 
 error. {K v. Mon, 7 T. R. 373 ; In re Pratt, 7 A. & E. 27 ; 
 B. V. Unvjin, 7 Dowl. 578 ; R. v. Christian, 12 L. J. (M. C.) 26 ; 
 B. 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. 150 — 168. As to constructive publication by the act of the 
 defendant's servant or agent, see ante, pp. 300 — 365. 
 
 (2.) That he published it in the county named as venue in 
 the indictment. 
 
 (3.) That the matter so published by the defendant is a 
 libel. Where tbe words are not libellous on the face of them, 
 this involves proof of the innuendoes and other prefatory aver- 
 ments, see ante, p. 575. 
 
 (4.) In a few cases the prosecution must also prove a special 
 intent, see ante, p. 370. But malice need never be proved, 
 unless the occasion be privileged. 
 
 (5.) If the indictment be framed under s. 4 of Lord Camp- 
 bell'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. 
 
 (1.) 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. {R. v. Wegener, 2 
 Stark. 245 ; Phillips v. Jansen, 2 Esp. 024 ; Clutterbuck v. 
 Chaffers, 1 Stark. 471.) Section 27 of the Common Law Pro- 
 cedure Act, 1854, ante, p. 533, as to comparison of handwriting, 
 which was originally confined to civil proceedings (s. 103) now 
 applies to criminal trials as well — 28 & 29 Vict. c. 18, s. 8. 
 (See also R. v. Beare, 1 Lord Raym. 414 ; 12 Mod. 221 ; 2 
 Salk. 417; Carth. 409 ; Holt, 422; R. v. Slane^j, 5 C. & P.
 
 EVIDENCE FOR THE PROSECUTION. 581 
 
 213.) Whoever requests or procures another to write or publish 
 a libel will be held equally guilty with the actual publisher. 
 {U. V. Cooper, 8 Q. B. 533 ; 15 L. J. Q. B. 20G.) 
 
 (2.) It is, ho\Yever, necessary to further jDrove in a criminal 
 case that the prisoner published the libel in the county in 
 wh^cli 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. [R. v. Btivdett, 4 B. & Aid. 95 ; R. v. 
 Girchvood, 1 Leach, 1G9 ; East P. C. 1120, 5.) 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 publica- 
 tion by the defendant in Middlesex. (R. v. Watson, 1 Camp. 
 215.) The post-mark is sufficient irrirad facie evidence that 
 the letter was in the post-office named on the date of the mark. 
 {R. V. Phimer, Russ. & Ry. 2G4 ; R. v. Canning, 19 St. Tr. 
 370 ; R. V. Hon. Robert Johnson, 7 East, 65 ; 3 Smith, 94 ; 
 29 How. St. Tr. 103 ; Stocken v. Collin, 7 M. & W. 515; 10 L. J. 
 Ex. 227.) These cases must be taken to overrule the dictum 
 of Lord Ellenborough in R. v. Watson, 1 Camp. 215. An 
 admission by the defendant that he wrote the libel is no ad- 
 mission that he published it, still less that he published it in 
 any particular county. {The Seven BisJiops' Case, 4t St. Tr. 
 304 ; R. V. Burdett, 4 B. & Aid. 95.) 
 
 (3.) The prosecutor must now put in the libel and have it 
 read to the j ury. The libel itself must, if j)ossible, be produced 
 at the trial. If it be in the possession of the defendant, and notice 
 has been given to him to produce it, then if he refuses so to do, 
 secondary evidence may be given of its contents. {Attorney- 
 General V. Le Merchant, 2 T. R. 201, n.) 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 R. v. Barker, 1 F. & F. 326.) Any other 
 documents which explain the libel, and are referred to in it, 
 may also be put in and read. {R. v. Slaney, 5 C. & P. 213.) 
 
 Any variance between the words as proved and the words as
 
 5S2 PRACTICE AND EVIDENCE. 
 
 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 at the trial, if he thinks that such 
 amendment cannot prejudice the defendant in his defence on 
 the merits. (7 Geo. IV. c. 64, s. 20 ; 14 & 15 Vict. c. 100, ss. 1, 
 24, 25.) 
 
 The prosecution must further prove the innuendoes and all 
 explanatory averments of extrinsic facts, whenever such proof 
 is necessary 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 declara- 
 tions 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 material 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 ; R. v. Biidcl, 5 Esp. 230.) 
 
 It will then be for the jury, after considering this evidence, 
 to say whether the publication, when taken as a whole, is or is 
 not a libel. 
 
 Evidence for the Defence. 
 
 The defendant may call evidence rebutting the case for the 
 prosecution, c.<j., 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 different complexion on the libel, e.g., other 
 passages contained in the same publication, fairly connected 
 with the same subject. {R. v. Lambert 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 com- 
 plained of is a fair and bond fide 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 express malice, precisely 
 as in civil cases, ante, c. IX., pp. 264 — 288. 
 
 The defendant may also cross-examine the plaintiff's witnesses 
 as to any previous statements made by them on the subject-
 
 EVIDENCE FOR THE DEFENCE. 583 
 
 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 con- 
 viction of a witness, see ante, p. 546. 
 
 The defendant may call evidence to show that though he 
 published 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, being 
 'priniaj facie evidence of a knowledge of its contents. [It. v. 
 Givdivood, 1 Leach, 1G9 ; East P. C. 1120, 5.) But if the 
 defendant can prove that he cannot read, or that he never had 
 any opportunity of reading the libel, but delivered it pursuant 
 to orders, having no reason to suppose its contents illegal, this 
 will be a defence. (See ante, pp. 384, 7.) 
 
 Again, where evidence has been given which has established 
 a prima 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 authorit}^, 
 consent, or knowledge, and arose from no want of due care or 
 caution on his part. (G & 7 Vict. c. 96, s. 7.) But it seems 
 that no defendant has ever succeeded in proving such a de- 
 fence. (See R. v. Holbrook and others, 3 Q. B. D. 60 ; 47 L. J. 
 Q. B. 35 ; 26 W. K. 144 ; 37 L. T. 530 ; 13 Cox, C. C. 650 ; 
 4 Q. B. D. 42 ; 48 L. J. Q. B. 113 ; 27 W. K 313 ; 39 L. T. 
 536 ; 14 Cox, C. C. 185, ante, pp. 364, 5.) 
 
 Also, if the defendant has pleaded a plea under Lord Camp- 
 bell's Act, but not otherwise, he may give evidence of the truth 
 of the libel. But the truth alone is no defence, 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. Duffy, 9 Ir. L. K 329 ; 2 Cox, C. C. 45.) If a 
 general charge be made in the libel, specific instances must be 
 set out in the plea. It will be sufficient, however, if at the 
 trial two distinct instances are proved to the satisfaction of the 
 jury. {R V. Lahouchere {Lamhri's case), 14 Cox, C. C. 419.) 
 
 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.
 
 5 84 PRACTICE AND EVIDENCE. 
 
 and against the publisher of which he took no legal proceedings, 
 is not admissible either at common law or under this section. 
 {R. V. Bolt, 5 T. E. 436 ; R. v. 'Netmnan, Dears. C. C. 85 ; 3 C. & 
 K. 252 ; 1 E. & B. 2GS ; 22 L. J. Q. B. 156 ; 17 Jur. 617.) Where 
 the libel contains several charges, and the defendant fails to 
 prove the truth of any one of such charges, the jury must of 
 necessity find a verdict for the Crown ; and the Court, in giving 
 judgment, is bound to 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 to form its own con- 
 clusion on the whole case. {R. v. Feivman, 1 E. & B. 558 ; 
 22 L. J. Q. B. 1 56.) 
 
 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. {R. V. Grant and others, 5 B. & Adol. 1081 ; 3 N. & M. 
 106.) 
 
 The defendant may also, as in other criminal cases, call 
 evidence of his good character : but such evidence would be 
 of very little use, except, perhaps, in cases of mistaken identity. 
 Evidence in mitigation of punishment is not generally called 
 before verdict ; but affidavits may be filed for that purpose after 
 the trial. That rumours to the same effect had previously been 
 circulated in other newspapers is no justification for the de- 
 fendant's repeating the statement in his own paper, especially if 
 he purports to speak from authority. {R. v. Harvey and Chap- 
 mam, 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. {R. v. Pigott, 11 Cox, C. C. 46.) 
 Some of the judges permit the prisoner, although defended by 
 counsel, to make a statement to the jury before his counsel 
 addresses them. When this is done, however, it would appear 
 that the counsel for the prosecution can claim the right to 
 reply generally, after the counsel for the prisoner has concluded 
 his speech. {Per Field, J., in R. v. Eyre (Leeds Assizes), Times, 
 Nov. Gth, 1880.)
 
 PROCEEDINGS AFTER VERDICT. 585 
 
 Summinr/ up and Verdict. 
 
 The judge at the conclusion of the case suras 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. 
 The judge would direct the jury to find the defendant guilty on 
 proof of the publication, of the innuendoes, and of the other 
 necessary averments. (See R. v. WoodfaU, 5 Burr. 2661 ; E. 
 V. Shi2Jley {Dean of St. Asaph), 21 St. Tr. 1043 ; 3 T. R 428 n. ; 
 4 Dougi. 73 ; R v. Withers, 3 T. H. 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 (s. 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 
 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 responsi- 
 bility. In this sense the jury are the true guardians of the 
 liberty of the press." (R. v. Sidlivan, 11 Cox, C. C. 52.) At 
 the same time the jury should pay attention to 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. 
 
 Proceedings after VerdAct. 
 
 If at the trial the defendant was acquitted, no further proceed- 
 ings can be taken ; the verdict of the jury is conclusive in 
 favour of the defendant. (R. v. Cohen and. Jacob, 1 Stark. 
 516 ; R.Y. Mann, 4 M. & S. 337.) If, however, the defendant 
 was convicted, then, if the judge before whom the trial took 
 place has reserved any point of law arising thereout for the con- 
 sideration of the Court above, he may state a case in the
 
 5S6 PRACTICE AND EVIDENCE. 
 
 manner pointed out by the 11 & 12 Vict. c. 78, s. 2. This case 
 "will be argued in the Court for the consideration of Crown 
 Cases Reserved, when the conviction Avill be either quashed or 
 affirmed. 
 
 If no sucli 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 suffi- 
 ciently appear to be libellous, or on some other ground appear- 
 ing on the face of the record. Power to make this motion is 
 expressly reserved 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, (i?. v. Bliq^ley 
 {Dean of St. AsapJt), 21 St. Tr. 1043 ; 3 T. R. 428 n. ; 4 Dougl. 
 73 ; R. V. Topham, 4 T. R. 126.) But mere formal defects 
 cannot now be taken advantage of in such a motion. (14 & 1-5 
 Vict. c. 100, s. 2.5.) 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 imperfectly stated, and the verdict 
 on an issue involving that averment 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 
 HeymaniiY. The Queen, L. R. 8 Q. B. 105, 6; 21 W. R. 357; 28 
 L. T. 162 ; 2')cr Brett, L. J., in E. v. Asimiall, 2. Q. B. D. 57, 8 ; 
 46 L. J. M. C. 145; 25 W. R. 283 ; 36 L. T. 297. See also 
 Serjeant Williams' note (1) to Stennel v. Hogg, 1 Wms. Saund. 
 228 ; K 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 writ of error. (Per Cockburn, C. J., 2 Q. B. 
 D. 572 ; and per Bramwell, L. J., 3 Q. B. I). 624 ; R. v. Larhin, 
 Dears. C. C. 365 ; 23 L. J. M. C. 125.) Hence if an indictment 
 for publishing an obscene book does not set out the passage oi" 
 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 defendants, nor is it waived b}^ the de- 
 fendants' omitting to demur. {BracUaugh and Besant v. The 
 Queen (C. A.), 3 Q. B. D. 607 ; 48 L. J. M. C. 5 ; -IQ W. R.
 
 PROCEEDINGS AFTER VERDICT. 587 
 
 410 ; 88 L. T. 118; 14 Cox. C. C. G8, overnilhig E. v. Brodlaugh 
 and Besant, 2 Q. B. D. 569; 46 L. J. M. C. 286.) Where, how- 
 ever, an indictment or information contains several counts, if 
 any one of them be found good, the judgment will stand. {R. 
 V. Benfield and others, 2 Burr. 985.) 
 
 A motion in arrest of judgment should be made before 
 sentence. The judge at the trial may reserve the point for the 
 consideration of the Court of Crown Cases Reserved. If the de- 
 fendant 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 R. v. Waddington, 1 East, 146.) On a 
 motion in arrest of judgment the Court has no power to amend 
 the record. {R. v. Larhln, Dears. C. C. 365 ; 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. 45rt.) 
 So if the judgment against him be reversed on a writ of error, 
 he can be again indicted for the same offence. [R. v. Drury 
 and others, 3 C. & K. 190 ; 18 L. J. M. C. 189.) 
 
 The defendant may 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 R. V. Bradlaugh and Besant, 2 Q. B. D. 574 ; 46 L. J. M. C. 
 286.) If the Attorney-General refuse to grant a fiat, the de- 
 fendant has no remedy. (Expaiie Newton, 4 E. & B. 869 ; Re 
 Pigott, 11 Cox, C. 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 cither originated in the 
 Queen's Bencli Division or has been removed thither by cer- 
 tiorari, the defendant may also move for a new trial, as in a 
 civil case. The motion should be made within the first four 
 days of the next term ; though the time may be extended e.v 
 gratia in a proper case, if counsel apply for an extension of 
 time wit!) in the four days. (/?. v. Holt, 5 T. R. 486 ; R. v.
 
 588 PRACTICE AND EVIDENCE. 
 
 JVeivman, 1 E. & B. 270 ; 22 L. J. Q. B. loG ; Dears. C. C. 85 ; 
 17 Jur. 617 ; 8 C. & K. 252.) 
 
 A new trial may be moved for on the ground that the prose- 
 cutor has omitted to give due notice of trial, or that the verdict 
 has been contrary to evidence, or to the direction of the judge, 
 or for the improper reception or rejection of evidence, or other 
 mistake or misdirection of the judge, or for any gi'oss misbe- 
 haviour 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. Whitehoiise 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. v. Spragg and another, 2 
 Burr. 929; R. v. Caudivell, 2 Den. C. C. 372 n.) The rule is 
 generally argued therefore when the defendant is brought up 
 for judgment. {R. v. Iletherington, 5 Jur. 529.) 
 
 Where the verdict is on the face of it imperfect, so that judg- 
 ment cannot be given upon it, the Court will award a venire de 
 novo, instead of granting a new trial, the error appearing on 
 tlie 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. Fowler and Sexton, 4 B. *& 
 Aid. 273, 27G.) A venire de novo was awarded in WoodfalVs 
 case, 5 Burr. 2G61, it being impossible to say what the juiy 
 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 novo awarded, the parties stand precisely as they did 
 before the first trial, and the whole of the facts are to be re- 
 heard. 
 
 Where a new trial is ordered of an indictment removed into 
 the Queen's Bench Division by certiorari, at the instance of 
 the defendant, the Court may, in its discretion, order that the 
 costs shall abide the event of the new trial. (R. v. Whitehoiise 
 and TeH(7t, Dears. C. C. 1.)
 
 SENTENCE. 589 
 
 Sentence. 
 
 Sentence is seldom passed directly the verdict of Guilty is 
 given, especially in the Queen's Bench Division. Formerly 
 the defendant was kept in custody till sentenced ; but now, 
 unless the case be exceptional, he is allowed out on the same 
 bail as before. In the interval, the defendant frequently 
 files affidavits in mitigation of punishment, which the pro- 
 secutor may answer. Such affidavits may show that the de- 
 fendant reasonably and hond fide believed in the truth of 
 the charges made in the libel, but not that the libel is in fact 
 true. {R. v. Burdett, 4 B. & Aid. 31-i ; R v. Halpin, 9 B. & C. 
 Go ; 4 M. & R. 8.) Or they may contain general evidence of 
 good character. That the defendant voluntarily stopped the 
 sale of the book complained of, as soon as proceedino-s were 
 commenced {R. v. Williams, Lofft. 7o9), or any other circum- 
 stance showing provocation by the prosecutor, or an absence of 
 malice in the defendant, may be set out on affidavit. 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. 
 
 If, in the interval since the verdict, the defendant has repub- 
 lished the libel, or continued its sale, or been guilty of other 
 misconduct, the prosecutor may file affidavits in aggravation of 
 punishment. (See R. v. IHYAeys, 3 T. R. 428.) As to the 
 procedure when the prisoner is brought up for judgment, see R. 
 V. Bunts, 2 T. R. 083. The judge in passing sentence will also 
 consider whether the guilt of the defendant is aggravated or 
 mitigated by any plea of justification which he may have placed 
 on the record, and by the evidence given to prove or to disprove 
 the same (C & 7 Vict. c. 96, s. 6). 
 
 Where judgment has been suffered by default, both parties 
 should state their case on affidavit. If there is any matter in 
 the prosecutor's affidavit which the defendant could not be 
 expected to have come prepared to answer, he will be allowed 
 an opportunity of answering it on a future day. {R. v. Archer, 
 2 T. R. 203 n. ; R. v. Wilson, 4 T. R. 487.) 
 
 As to the sentence that may be passed in the case of a defa- 
 matory libel at common law, see ante, p. 378 ; under the various
 
 590 . PRACTICE AND EVIDENCE. 
 
 statutes, p. 379 ; in the case of a blasphemous libel, p. 394 ; au 
 obscene libel, p. 404; a seditious libel, p. 412. If the prisoner be 
 found 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 GO Geo. III. and 1 Geo. IV. c. 8, ss. 1, 2. 
 
 GosU. 
 
 In the case of an indictment or information by a private 
 prosecutor for 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. 9G, s. 8.) Such 
 costs must first be taxed by the proper officer of the Court 
 before which the said indictment or information is tried ; and 
 his taxation cannot be reviewed by the Queen's Bench Division. 
 {R. V. Xeivhouse, 1 L. & M. 129 ; 22 L. J. Q. B. 127.) In the 
 case of an information, the record being in the Queen's Bench 
 Division, execution may issue on taxation in the ordinary way. 
 {R. Y.Latimer, 15 Q. B. 1U77; 2U L. J. Q. 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 execution 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, 08 ; 27 
 L. T. 828; 12 Cox, C. C. 298, 351.) 
 
 So if a defendant pleads, and fails to prove, a justification, 
 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. 69, 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 prose- 
 cutor may, by memorializing the Treasury, obtain a portion of 
 the fine towards the payment of his costs. 
 
 Where an indictment is removed into the Queen's Bench 
 Division by certiorari, the party applying for the writ (not being 
 the Attorney-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
 
 MOTION FOR THE RULE. 591 
 
 of any borough fund. {R. v. Mayor, &c., of Liverpool,^! L. J. 
 Q. B. 175 ; 20 \V. R. 389 ; 26 L. T. 101.) Where the directors 
 of a company liave instituted a prosecution for libel, 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 paid. {Picherhig v. Steijhenson, L. R. 14 Eq. 322 ; 41 
 L. J. Ch. 493 ; 20 W. R. 654 ; 26 L. T. 608.) 
 
 PART II. 
 
 PRACTICE AND EVIDENCE IN PROCEEDINGS BY WAY OF 
 CRIMINAL INFORMATION. 
 
 Motion for the Rule. 
 
 The Clerk of the Crown may not file any information with- 
 out express order of the Queen's Bench Division granted in 
 open Court. (4 & .5 Wm. & Mary, c. 18, s. 1.) Counsel must 
 move the Court upon proper affidavits for a rule nisi calling 
 upon the defendant to show cause why an information should 
 not be granted. The prosecutor must consent to waive his civil 
 remedy by action, and must submit himself to the Court ; and 
 must be prepared to go through with the criminal proceedings 
 to conviction. The affidavits on which the application is based 
 should be carefully drawn up ; as no second application may 
 be made on amended or additional affidavits. {R. v. Fraoiceys, 
 2 A. & E. 49.) They should in the first place prove the publi- 
 cation by the defendant. Mere iwimd facie evidence of this 
 will not be sufficient. {R. v. Baldiuin, 8 A. & E. 108; 7?. 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. 90 ; 19 W. R. 640 ; 24 L. T. 266, the affi- 
 davits merely showed that the annexed copy of the Keivcastle 
 Daily Chronicle, the newspaper containing the libel, had been 
 purchased from a salesman in the office of that paper, and that 
 in a footnote at the end of that copy the defendant was stated
 
 592 
 
 PRACTICE AND EVIDENCE. 
 
 to be tlie printer ajid publisher of the newspaper, and the 
 relator believed him so to be. 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 affidavit by a person who purchased 
 a copy of the libel at such office or 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 objec- 
 tion. (-Dit/ve of Brunsiuich v. Harmer, 14 Q. B. 189 ; 19 L. J. 
 Q. B. 20 ; 14 Jur. 110 ; 3 C. & K. 10.) 
 
 It is a doubtful point whether the omission of such strict 
 proof of publication can subsequently be supplied by the 
 admissions, if any, in the defendant's affidavits filed to show 
 cause against the rule. The Courts have generally refused to 
 look at defendant's affidavits to supply a defect in those of the 
 prosecutor. {R. v. Bahhuin, 8 A. & E. 169.) For tlie rule 
 is that the prosecutor can at the argument refer to no 
 document which does not aj^pear on the face of the rule itself 
 to have been read at the first application. {R. v. Woolmer 
 and another, 12 A. & E. 422.) But Lord Kenyon, in R. v. 
 Mein, 3 T. R. 597, and Blackburn, J., in R. v. Stanger, L. R. 
 C Q. B. 355 ; 40 L. J. Q. B. 96 ; 19 W. R 640 ; 24 L. T. 266, 
 expressed an opinion that the Court might look at any evidence 
 lawfully before them for any purpose they pleased. 
 
 The prosecutor must also swear to his innocence in all par- 
 ticulars of the charge contained in the libel. {R. 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 manner ; " the prosecutor must 
 proceed by way of indictment in the ordinary course. {R. v. 
 Bickerton, 1 Stra. 498.) 
 
 If there is no specific charge in the libel, no such affidavit is 
 necessary {R. v. Williams, 5 B. & Aid. 595), and it has also 
 been dispensed 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. {R. v. Has- 
 well and Bate, 1 Dough 387.) If a general charge bo made 
 and a specific instance alleged, the affidavit must expressly
 
 ARGUMENT OF THE RULE. 593 
 
 negative not only the general chai'ge, but also the specific 
 instance. {R. v. Avbngev, 12 Cox, C. C. 407.) 
 
 The affidavits should be sworn with no heading or title. The 
 application must be made within two terms after the publica- 
 tion, 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, Marshall, 4 
 E. & B. 475, ante, p. 882.) The affidavits 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 apjDlication. {R. v. Barn, 7 A. & 
 E. 190.) 
 
 The rule 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 
 of the rule. It should be personally served on the defendant. 
 
 Argument of the Rule. 
 
 The defendant now shows cause. He generally files affi- 
 davits in reply. It is open to him to maintain that the 
 libel is true. {R. v. JEve and Parlhij, 5 A. & E. 780 ; 1 N. & 
 P. 229.) See ante, p. 592. 
 
 He may also, it seems, contend that the libel complained 
 of did not apply to the relator. In a recent case the libel 
 did not name the person alluded to ; but described bim " as 
 a man of high descent, who has been regarded as a man not 
 only of refined tastes and studious habits but as an artist of 
 somewhat more than ordinary ability." The relator swore that 
 he believed that the libel was intended to refer to himself. 
 The Duke of Sutherland and others of his friends considered 
 that it would be generally understood as applying to him ; 
 and a rule was granted. But uj)on the argument of the rule, 
 the publisher and the author of the libel both swore posi- 
 tively that the relator was not the person referred to and 
 that they were not in fact aware that he was either a man 
 of refined tastes and studious habits, or an artist of somewhat 
 more than ordinary ability. And the rule was therefore dis- 
 charged. {R. V. Barnard, Times for Dec. 17th, 1878, and Jan.
 
 594 PRACTICE AND EVIDENCE. 
 
 13th, 1879.) This decision is perhaps to be regretted ; as it 
 opens a door by which a libeller may escape punishment, pro- 
 vided he 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 inteuded 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. 
 
 If the rule be discharged on the merits the Court generally 
 gives the defendant his costs. And no second application may 
 be made to tlie Court, even ujjon additional affidavits (i^. v. 
 Siinithson, 4 B. & Ad. 8G2) ; except in very peculiar circum- 
 stances, as where the only person who had made an affidavit on 
 behalf of the defendant on the argument of the first rule had 
 since been indicted or convicted of perjury in respect of such 
 affidavit. {R. v. Em and Parlhy, 5 A. & E. 780 ; 1 N. & P. 
 229.) But though the jDrosecutor 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. Cockshavj, 2 N. 
 & Man. 378.) 
 
 Coii^yromise. 
 
 Frequently, however, the defendant files exculpatory affida- 
 vits, apologising to the i^rosecutor, withdrawing all imjDutations 
 upon him, and entreating the mercy of the Court. When this 
 hajDpens, 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 
 by no means disposed on that account 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 criminal 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. 30.5.)
 
 TRIAL AND COSTS. 595 
 
 Trial and Costs. 
 
 If the rule be made absolute, the prosecutor must enter into 
 a recognizance to effectually prosecute the information and abide 
 by the order of the Court. The amount of the recognizance is 
 fixed by statute (4 & 5 Wra. and M. c. 18, s. 1) at 20^., and this 
 amount cannot be increased. {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. 57, G0,2:>ost, pp. G4-9, G51.) As soon as it is filed a siibpimui 
 issues of which a copy must be served on the defendant. The 
 defendant must appear thereto within four days. If he does 
 not he may be attached under a judge's warrant (48 Geo. III., 
 0. 58, s. 1.) After appearance the defendant has ten days 
 within which to plead. 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, nnless a trial at bar be 
 demanded. The record may be amended by a judge at 
 chambers after plea and before trial. {R. v. Wilkes (17G4 — 
 1770) 4 Burr. 2527 ; 2 Wils. 151.) The trial of an information 
 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 himself or any one appearing for him,) has 
 the right to reply, although the defendant calls no witiiesses. 
 {R. V. Home, 20 How. St. Tr. GGO; 11 St. Tr. 2G4; Cowp. G72.) 
 The trial must take place within one year after issue joined ; 
 and if not, or if the prosecutor enters a nolle prosequi, or 
 if, at the trial, the verdict pass for the defendant, the defendant 
 will be entitled to recover his costs from the prosecutor. The 
 judge at the trial has no longer any power to deprive a success- 
 ful defendant of his costs by certifying upon the record that 
 there was a reasonable cause for exhibiting such information, 
 except in an ex officio information. (4 & 5 Wm. and Mary, 
 c. 18, s. 1, and G & 7 Vict. c. 9G, s. 8 ; as explained in R. v. 
 Latimer, 15 Q. B. 1077; 20 L. J. Q. B. 129; 15 Jur. 314.) 
 The master of the Crown ofiice taxes the costs under a side-bar 
 rule ; and he may allow costs incurred by the defendant pre- 
 viously to the filing of the information. {R. v. Steel and others, 
 1 Q. B. D. 482 ; 45 L. J. Q. B. 391 ; 24 W. R. G38 ; 34 L. T. 
 
 Q Q 2
 
 596 PRACTICE AND EVIDENCE. 
 
 283 ; 13 Cox C. C. 159 ; (C. A.) 2 Q. B. D. 37 ; 46 L. J. M. C. 1 ; 
 25 W. K 34 ; 35 L. T. 534.) On such taxation execution 
 issues. There is no power, however, to condemn the defendant 
 to pay the costs 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 Yict. c. 9G, 
 s. 8, fost, p. 674, Appendix C.)
 
 APPENDICES. 
 
 APPENDIX A. 
 PKECEDENTS OF PLEADINGS. 
 
 CONTENTS. 
 I. Pleadings in Actions for Libel. 
 
 Libel contained in a character given to a domestic servant by her late 
 
 employer. 
 
 1. Statement of Claim. 
 
 2. Statement of Defence. (Justification and Privilege.) 
 
 Libel on architects {partners) in the way of their profession. 
 
 3. Statement of Claim. 
 
 Libel on the editor of a neivspcqoer. 
 
 4. Statement of Claim. (Injunction.) 
 
 5. Statement of Defence. (.Justification and Bond Fide Comment.) 
 
 6. Reply and Demurrer. 
 
 Libel contained in a Memorial to the Home Secretary. 
 
 7. Statement of Claim. 
 
 8. Summons for Particulars. 
 
 9. Order for Particulars. 
 
 10. Particulars. 
 
 11. Statement of Defence. (Privilege.) 
 
 12. Reply. 
 
 13. Rejoinder. 
 
 Libel contained in a placard. 
 
 14. Statement of Claim. 
 
 15. Statement of Defence. (Privilege.) 
 
 Action ayainst the Manager of a Bank for showing to a customer an anony- 
 mous libellous letter. 
 
 16. Statement of Claim. (Innuendoes.) 
 
 17. Statement of Defence. (.Justification and Privilege.)
 
 598 APPENDIX A. 
 
 Action for jmhUshing a libellous novel. 
 
 18. Statement of Defence. 
 
 Action against a newspaiwr 'proimetor. 
 
 19. Statement of Defence, on tlie gronnd that the alleged libel is fair and 
 
 lona fide comment on a matter of public interest. 
 
 20. Statement of Defence, on the ground that the alleged liljel is a fair 
 
 and impartial report of a judicial proceeding. 
 
 21. Interrogatories administered to a newspaper proprietor. 
 
 22. Interrogatories administered to the editor of a newspaper. 
 
 23. Notice of intention to give evidence of an apology in mitigation of 
 
 damages under Lord Campbell's Act. 
 
 II. Pleadings in Actions for Slander. 
 
 Words imindinrj a crime. 
 
 24. Statement of Claim. (Innuendo.) 
 
 25. Statement of Defence. (Charge made in Joke.) 
 
 26. Statement of Defence. (Justification.) 
 
 Words impictrng a contagious disorder. 
 
 27. Statement of Claim. 
 
 28. Particulars. 
 
 29. Statement of Defence. 
 
 Words spolcen in a foreign language. 
 
 30. Statement of Claim. (Translation.) 
 
 Words spolien of a medical man. 
 
 31. Statement of Claim. (Innuendoes.) 
 
 Slander of a clergyman. 
 
 32. Statement of Claim. 
 
 Slander of a jxtrish cleric. 
 
 33. Statement of Claim. 
 
 34. Statement of Defence. (Apology and Payment into Court.) 
 
 35. Reply. 
 
 Slander of a trader in the vxiy of his trade. 
 
 36. Statement of Claim. 
 
 37. Statement of Defence. (Justification.) 
 
 Slander of a huilder in the way of his trade. 
 
 38. Statement of Claim. 
 
 39. Statement of Defence. (Justification and Privilege.)
 
 CONTENTS. 599 
 
 III. Pleadings in Actions for Slander of Title. 
 
 Pleadings in the case of " The Western Counties Manure Co. v. The Lawes 
 Chemical Manure Co." 
 
 40. Declaration. 
 
 41. Pleas. 
 
 42. Eeplication and Demurrer. 
 
 43. Joinder in Demurrer. 
 
 44. Plaintiffs' points upon the argument of the DemiuTer. 
 
 45. Interrogatories. 
 
 Blander of title to goods, 
 
 46. Statement of Claim. 
 
 47. Statement of Defence. 
 
 Libel in the nature of slander of title. 
 
 48. Statement of Claim. 
 
 49. Statement of Defence. 
 
 IV. Forms of Pleadings, Notices, etc., in the County 
 
 Court. 
 
 50. Statement of the Plaintiff's Cause of Action in a remitted action. 
 
 51. Notice of Trial of such remitted Action. 
 
 52. Affidavit for leave to administer Interrogatories. 
 
 53. Notice of Set-off and Counterclaim. 
 
 54. Notice of Special Defence. 
 
 55. Notice under Lord Campbell's Act, s. 1. 
 
 56. Notice imder Lord Camj)beirs Act, s. 2. 
 
 V. Precedents of Criminal Pleadings. 
 
 57. Information for a libel on a private individual. {R. v. Newman.) 
 
 58. Pleas thereto. 
 
 59. Eeplication. 
 
 60. Ex Officio Information for a Seditious Libel. {R. \. Home.) 
 
 61. Indictment for a Blasphemous Libel. 
 
 62. Indictment for an Obscene Libel. 
 
 63. Indictment for Seditious Words. 
 
 64. Indictment for Slanderous Words spoken to a Magistrate -whilst in 
 
 the execution of his duty. 
 
 65. Indictment for a libel on a private individual at common law. 
 
 66. Indictment under s. 4 of Lord Campbell's Act. 
 
 67. Indictment under s. 5 of Lord Campbell's Act. 
 
 68. Demurrer to an Indictment or Information. 
 
 69. Joinder in Demurrer. 
 
 70. Pleas to an Indictment. 
 
 71. Replication to the above Picas. 
 
 72. Demurrer to a Plea. 
 
 73. Joinder in Demurrer.
 
 I 
 
 I. PRECEDENTS OF PLEADINGS IN ACTIONS 
 OF LIBEL. 
 
 No. L 
 
 Libel contained in a Character given to a Domestic Servant 
 
 by her late Employer. 
 
 1880.— J.— No. 1973. 
 
 In the High Court of Justice, 
 Queen's Bench Division. 
 
 Writ issued Nov. 3rd, 1880. 
 Between Sarah Jones .... Plaintiff, 
 
 and 
 Henry Roberts 
 and Alice his wife . . . Defendants. 
 
 Statement of Claim, 
 
 Delivered on the 16th day of Nov., 1880, by M. & N. of 
 -, in the City of London, agents for , of Cheltenham, in 
 
 the County of Gloucester, solicitor for the above-named plaintiff. 
 
 1. The plaintiff is a housemaid, formerly in the service of 
 the defendants, and now residing at . 
 
 2. The male defendant is a gentleman, residing at Hall, 
 
 near Evesham, in the county of Worcester ; and the female 
 defendant is his wife. 
 
 3. On the 15th day of September, 1880, the female defendant 
 falsely and maliciously wrote and published of the plaintiff the 
 Avords 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." * 
 
 4. [Add a paragraph setting out special damage, if any 
 exists]. 
 
 And the plaintiff claims £200 damages, and proposes that 
 tliis action be tried in the county of Gloucester. 
 
 * N.r>. — No innuendu is necepsavv.
 
 PLEADINGS IN LIBEL. 60 1 
 
 No. 2. 
 Statement of Defence. 
 
 1. The defendants adnait that the defendant Alice wrote and 
 published the words set out in paragraph 3 of the Statement of 
 Claim, but deny that she did so either falsely or maliciously. 
 
 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, 1880, she stole two pair of sheets and one 
 counterpane, of the goods and chattels of the defendant Henry, 
 
 and pawned them at the shop of John ,No. ,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 the 
 
 said Mrs. M. wrote a letter to the defendant Alice inquiring as 
 to the plaintiff's character, and asking especially why she left 
 the defendants' service. 
 
 4. Thereupon it became and was the duty of the defendant 
 Alice to write to the said Mrs. M., telling her 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 containing the said words. Such 
 words were simply an answer to Mrs. M.'s inquiries, and were 
 written under a sense of duty and without malice, .and in the 
 bond fide belief that the charge therein made was true and not 
 otherwise. Wherefore the defendants say that the said letter is 
 privileged by reason of the occasion on which it was written. 
 
 Reply, 
 
 The plaintiff joins issue with the defendants on their state- 
 ment of defence. 
 
 No. 3. 
 
 Libel on Architects {partners) in the way of their prof ession. 
 Botterill ami another v. Whytehead, 41 L. T. 588, ante,^. 219, 
 
 Statement of Claim. 
 
 1, The plaintiffs are brothers carrying on the profession and 
 business of architects in partnership at .
 
 602 
 
 APPENDIX A. 
 
 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 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 
 pui-pose. 
 
 3. On the 8th April, 1878, after the appointment of the 
 plaintiffs as such architects as aforesaid, the defendant by a 
 letter written and sent to Mr. Bethel, a member of the said 
 committee, falsely and maliciously wrote and published of the 
 plaintiffs, in relation to their profession and business of 
 architects, and the carrying on and conducting thereof by them, 
 the words following, that is to say : — 
 
 " I see in the Hull Neivs 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 3^ou 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 
 superintend and carry out the restoration of the said church, 
 and that, if the restoration were 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 Avould suffer from their incompetence and want 
 of skill. 
 
 4. On or about the IGth April, 1878, and after the appoint- 
 ment of the plaintiffs as such architects as aforesaid, the de- 
 fendant, by 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 carrying thereon 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 aAvare that they are Wesleyans, and cannot 
 have any religious acquaintance with such work ? " 
 
 Meaning thereby that the plaintiffs Avere incompetent to
 
 PLEADINGS IN LIBEL. 603 
 
 undertake and superintend the restoration of the said church, 
 and were unable to cari-y 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. 
 
 No. 4. 
 
 Lihel on the Editor of a Neivspajper. 
 
 Leyman v. Latimer and others, 3 Ex. D. 15, 352 ; 47 L. J. Ex. 
 470 ; 25 W. R. 751 ; 26 W. E. 305 ; 37 L. T. 300, 819. 
 
 Statement of Claim. 
 
 1. The jDlaintiff resides at Dartmouth, in the County of 
 Devon, and is the proprietor and editor of a newspaper pub- 
 lished there, and called the Dartmouth Advertiser. 
 
 2. The defendants are, and at the time of the publications 
 hereinafter mentioned were, the j^i'opi'i^tors, printers, and 
 publishers of a newspaper called the Western Daily Mercury, 
 the head publishing office of which is at Plymouth, in the said 
 county of Devon, and which also has branch publishing offices 
 in Devonport, in the said county, and in the city of Exeter. 
 
 3. The defendants, or some or one of them, also edit and write 
 for the said newsjjaper. 
 
 4. The defendants, in their said paper called the Western 
 Dally Mercury, dated on the 24th day of April, 1876, wrote, 
 printed, and published certain words, which words (omitting for 
 the sake of brevity certain words appearing in the original at 
 the places marked with asterisks) were as follows : — 
 
 " The narrative must be deferred till next week, * * * The 
 history of the J. cZveri^'iser, too, must stand over. * * * its present 
 editor is a convicted felon. The case in which a certain John 
 Leyman, printer, was sentenced to twelve months' hard labour 
 for stealing feathers — a case of which Mr. Foster may have 
 heard, since he is so familiar with the chief actor — will be 
 reproduced." 
 
 5. The defendants, in their said newspaper called the
 
 6o4 APPENDIX A. 
 
 WesUvn Daily Mercury, dated the 1st day of May, 1876, 
 wrote, printed, and published certain words, which words 
 {omitting for the sake of brevity certain words not personally 
 relating to the plaintiff, and appearing in the original at the 
 places marked with asterisks) were as follows : — 
 
 " There still remain to be recorded Mr. Foster's controversies 
 with the Town Council of Dartmouth. * * * and the facts re- 
 garding his newspaper (meaning the plaintiff's said newspaper, 
 the Dartmouth Advertiser), and its bankrupt and felon editors 
 (meaning the plaintiff). The narrative must be deferred till 
 next week. It is worth the telling." 
 
 6. The words set out in paragraphs 4 and 5 were written, 
 printed, and published by the defendants of and concerning the 
 plaintiff, and were so written, printed and published falsely and 
 maliciously, and with a libellous and defamatory sense and 
 meaning. 
 
 7. The said words so set forth in paragraphs 4 and 5 were 
 also so falsely and maliciously written, printed, and published 
 of and concerning the plaintiff in his business -and calling of a 
 printer and newspaper editor, and his said occupation as pro- 
 prietor and editor of the said Dartmouih Advertiser news- 
 paper. 
 
 8. In consequence of the publications set forth in the 4th and 
 5th paragraphs, the circulation of the plaintiff's said newspaper, 
 the Dartmouth Advertiser, has already been greatly injured, 
 and has much decreased, and will be still further injured and 
 decreased. The plaintiff has also already experienced difficulty 
 in getting sup23lied with news and obtaining persons to be his 
 correspondents, and will experience still further difficulty in 
 getting supplied with news and obtaining persons to corre- 
 spond with him. In particular one Mr. Robt. D., of Churston 
 Ferrers, in the county of Devon, and one Mr. Robt. H., of 
 Totnes, also in the county of Devon, who both had respectivel}' 
 supplied the plaintiff and his said newspaper with news, and 
 acted as correspondents to the plaintiff's said newspaper, in con- 
 sequence of the said publications refused and declined any 
 longer so to act. The value of the goodwill of the plaintiff's 
 said newspaper has, in consequence of the matters hereinbefore 
 appearing, become and is greatly lessened. 
 
 The plaintiff claims :
 
 PLEADINGS IN LIBEL. 605 
 
 1. £1000 damages. 
 
 2. An injunction to restrain tlic defendants from similar 
 publications in future. 
 
 3. Such further or other relief as the nature of the case may 
 require. 
 
 No. o. 
 Statement of Defence. 
 
 1. The defendants do not admit that the plaintiff is the 
 proprietor and editor of the Daiimoiitli Advertiser newspaper. 
 
 2. The defendants do not admit the allegations in paragraphs 
 G, 7, and 8 of the statement of claim. 
 
 3. The defendants deny that the word " bankrupt " in the 
 quotation from their said newspapei", in the fifth paragraph of 
 the statement of claim set out, Avas intended to, or did refer to, 
 the plaintiff. 
 
 4. And the defendants further say that the plaintiff has been 
 convicted of felony, and was sentenced to tw^elve months' hard 
 labour for stealing feathers. 
 
 5. The words in the 4th and 5th paragraphs of the statement 
 of claim complained of were, and are part of certain articles 
 printed and published in the defendant's said newspaper, each of 
 which articles was and is a fair and bond fide comment upon 
 the conduct of the plaintiff in his public character and as the 
 nominal editor and proprietor of the Dartmouth Advertiser, a 
 public newspaper, and was printed and published by the 
 defendants as and for such comment, and without any malicious 
 motive or intent whatever. 
 
 No. C. 
 Reply and Demurrer. 
 
 1. The plaintiff joins issue upon the 1st, 2nd, and 5th para- 
 graphs of the defendants' statement of defence. 
 
 2. As to the 3rd paragraph of the statement of defence, 
 the plaintiff admits the allegations in such 3rd paragraph 
 contained.
 
 6o6 APPENDIX A. 
 
 3. As to the 4th paragraph of the said statement of 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 contained in such 4th para- 
 graph. But the plaintiff further says that he has never been 
 convicted of felony save on that one occasion, which is the 
 occasion mentioned in the said 4th paragraph of the statement 
 of defence. 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, having jurisdiction as aforesaid, 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 felony, 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 convicted 
 as aforesaid. 
 
 4. The plaintiff demurs to the said 4th paragraph of the 
 statement of defence, on tlie ground that, while the statement 
 of defence admits the publication of the whole of the libels 
 alleged in the statement of claim, and the said paragraph is 
 pleaded to the whole of the said libels, and a part of the libel 
 charges that the plaintiff is a convicted felon, nevertheless the 
 said 4th paragraph contains nothing which justifies or is 
 otherwise a defence to that portion of the said libel ; and the 
 plaintiff also demurs upon other grounds sufficient in law to 
 sustain this demurrer. 
 
 Demurrer by the defendants to the Srd paragraph of the 
 plaintiff's reply.
 
 PLEADINGS IN LIBEL. 607 
 
 No. 7. 
 
 Lihel contained in a Memorial to the Home Secretary. 
 
 J. S. and M. his ivife v, G. 
 
 Statement of Claim. 
 
 1. The plaintiffs reside at , in the County of Wilts, and 
 
 the defendant at House in the adjoining parish. 
 
 2. In the month of , , the night dress of a child of the 
 
 plaintiffs accidentally caught fire, and the child was so seriously 
 injured that he shortly afterwards died, and upon an inquest 
 being held to inquire into the cause of his death, a verdict of 
 accidental death was returned by the coroner's jury. 
 
 3. The defendant thereupon falsely and maliciously wrote 
 and published of and concerning the plaintiffs, and spoke and 
 published of and concerning the plaintiffs the words following, 
 that is to say: " Mrs. S." (meaning the plaintiff M.) 'Svas in the 
 habit of unmercifully beating the child ; she would kick it on 
 the floor, and would invite the other children to do the same. 
 The child was fed Avith unwholesome and putrid food, jalap was 
 administered in its food to induce diarrhoea, and cold boiled 
 rhubarb was administered for the same purpose," meaning 
 thereby that the plaintiffs had neglected to provide their said 
 child with proper and wholesome food and nourisliment as it 
 was their duty to do, and had wilfully administered unwhole- 
 some food and drugs to their said child. 
 
 4. The defendant also falsely and maliciously wrote and 
 published of and concerning the plaintiffs, and spoke and 
 published of and concerning the plaintiffs the words following, 
 that is to say : " The child " (meaning the plaintiffs' said child) 
 " was also tied by the hands and feet and beaten with a cane 
 which had a nail fastened in the end, and this nail was forced 
 into the body of the child," and " the child was left uncared for 
 and without food fastened to a bed in a garret whilst bleeding 
 from chilblains," meaning thereby that the plaintiffs had treated 
 and had been in the habit of treating their said child with great 
 cruelty, brutality and harshness, and leaving him without food 
 and seeking to compass his death. 
 
 5. The defendant also falsely and maliciously wrote and
 
 6o8 APPENDIX A. 
 
 published of and concerning the plaintiffs, and spoke and 
 published of and concerning the plaintiffs the words following, 
 that is to say : " It is impossible that the injuries the child " 
 (meaning the plaintiffs' said child) " received, and which caused 
 its death, could have been produced by the conflagration of a 
 thin night dress (which was all the child had on)," meaning 
 thereby that the plaintiffs had wilfully caused or contributed to 
 the injuries their said child received and which caused its 
 death, and had been guilty of manslaughter or worse. 
 
 6. By reason of the premises the plaintiffs have been greatly 
 injured in their credit, reputation and character, and have been 
 exposed to contempt and odium, and have suffered great pain 
 and anguish of mind. 
 
 The plaintiffs claim £5000 damages. 
 
 The plaintiffs propose that this action shall be tried in the 
 City of the County of the City of Bristol. 
 
 No. 8. 
 
 Summons for Particulars. 
 Queen's Bench Division. 
 
 ^. and loife v. G. 
 
 Let the plaintiffs' solicitor or agent attend me, at my chambers 
 
 at , to-morrow at 11 of the clock in the forenoon, to show 
 
 cause why he should not deliver to the defendant's solicitor or 
 agent an account in writing of the particulars, showing when, 
 where, and to whom the alleged libels and slanders were written, 
 spoken and published ; and why, in the meantime, all further 
 proceedings should not be stayed until the delivery thereof 
 
 Dated the day of , 18 — . 
 
 No. 9. 
 Order on the above Summons. 
 Queen's Bench Division. 
 
 S. and wife v. G. 
 Upon hearing the solicitors or agents on both sides, I do 
 order that the plaintiffs' solicitor or agent shall deliver to the
 
 PLEADINGS IN LIBEL. 609 
 
 defendant's solicitor ox a^'out an account in writint.' of the 
 particulars showing when, where and to whom the alleged libels 
 and slanders were written, spoken and published, and that 
 unless such particulars be delivered in seven days all further 
 proceedings in this cause be stayed until the delivery thereof. 
 Dated the oth day of February, 187'S. 
 
 G. P. 
 
 No. 10. 
 
 Particulars under Order of oth February, 1878. 
 
 The defendant on or about the 24th, 25tli and 26th days of 
 October, 18 — , wrote, and published the libels complained of, to 
 
 the Rev. F. S. F. and J. G., Esq., at in the county of Wilts, 
 
 to H. A. and his wife at in the said county, to two j^olice 
 
 constables for the county of Wilts at aforesaid, to H. F. at 
 
 in the said county, to G. M. G., M. M., R. M., and W. A., 
 
 all at and in the said county, and on and between the 
 
 24th and 28th day of October, 18 — , the defendant wrote and 
 published the said libels to divers other persons in the several 
 parishes of [B, C, and D] in the said county, whose names are 
 at present unknown to the plaintiffs and on or about the 29th 
 day of October, 18 — , the defendant wrote and published the 
 said libels so complained of to the Right Honourable R. Assheton 
 Cross at the office of the Secretary of State for the Home 
 department in London. 
 
 The defendant uttered the slanders complained of upon and 
 between the same dates at the same places and to the same 
 persons as are mentioned and described in the last preceding 
 paragraph. 
 
 Dated 7th day of February, 18 — . 
 
 No. 11. 
 Statement of Defence. 
 
 1. The defendant as to paragraph 1 of the statement of claim, 
 ays that he and the plaintiffs reside in the same parish and not 
 
 n II
 
 6io APPENDIX A 
 
 in adjoining parishes. Save as aforesaid the defendant admits 
 the allegations contained in paragraj^h 1 of the statement of 
 claim. 
 
 2. The defendant also admits the several allegations contained 
 in paragraph 2 of the statement of claim. 
 
 3. The defendant does not admit that he wrote or published 
 or spoke or jiublished the words set out in paragraph 3 of the 
 statement of claim, or any or either of such words. 
 
 4. The defendant further, even if it be proved that he wrote 
 or published or spoke or published the words alleged in the 
 said paragraph 3 of the statement of claim, denies that he 
 wrote or published or sjooke or published such words with the 
 sense or meaning alleged, or w^ith any other defamatory or 
 actionable sense or meaning. 
 
 5. The defendant denies that he wrote or published or that 
 he spoke or published the words set out in paragraph 4 of the 
 statement of claim or any or either of such words. 
 
 6. The defendant, even if it be proved that he wrote or 
 published or spoke or published the Avords set out in the said 
 paragraph 4 of the statement of claim, denies that he wrote 
 and publislicd or spoke and published the same with the sense 
 or meaning alleged, or with any other defamatory or actionable 
 sense or meaning. 
 
 7. The defendant denies that he wrote or published the words 
 set out in paragraph 5 of the statement of claim. 
 
 8. The defendant, even if it be proved that he wrote and 
 published them at all, wholly and entirely denies that he wrote 
 and published the words alleged in paragraph 5 of the state- 
 ment of claim Avith the sense or meaning in that paragraph 
 alleged, or with any such sense or in any defamatory or action- 
 able sense. 
 
 9. The defendant denies that the several words set out in 
 paragraph 8, paragraph 4, and paragraph 5 respectively of the 
 statement of claim, even if the same be proved to have been 
 respectively written and published or spoken and published by 
 him, were or that any or either of them Avere written or pub- 
 lished or spoken or published of or concerning the plaintiff J. S. 
 
 10. The defendant further denies that the several words set 
 out in paragraphs 3, 4 and 5 respectively of the statement of 
 claim, if the same or any or either be proved to have been
 
 PLEADINGS IN LIBEL. 6ii 
 
 written or pviLlished, or f;poken or piil»lisliG(l Lj' \\\w\ at all, 
 were false to the knowledge of the defendant at the time of 
 snch publication (if any) by him. 
 
 11. The defendant further, if the writing and publishing', or 
 the speaking and publishing of the said words in paragraph 3, 
 paragraph 4, and paragraph 5 respectively of the statement of 
 claim, or of any or either of them be proved, wholly denies that 
 he wrote and published or spoke and published the same or 
 any or either of them maliciously. 
 
 12. The defendant further says that if it shall be proved 
 that he did write or publish, or speak or publish the said 
 several words set out in paragraphs 8, 4 and 5 of the statement 
 of claim, he did so under the circumstances following. A child 
 of the plaintiff's named F.S. had, as mentioned in jsaragraph 2 
 of the statement of claim, accidentally met its death by burning, 
 and an inquest had been held on it, as in the said paragraph 2 
 of the statement of claim is also mentioned. The plaintiff, M., 
 had during the said child's lifetime, frequently ill-treated and 
 neglected the said child. Rumoiu's as to her ill-treatment and 
 neglect of the said child, had been for some time before such 
 child's death current in the neighbourhood. After the said 
 child's death such rumours still continued. Many of the in- 
 habitants in the neighbourhood entertained a strong feeling 
 that the said inquest had been conducted in an unsatisfactory 
 way, and that sufficient inquiry had not been made into the 
 circumstances surrounding the death of the said child. The 
 defendant was, and is one of the principal residents in the said 
 neighbourhood, and the facts above stated came to his know- 
 ledge. He, after taking reasonable means to satisfy himself, in 
 good faith believed that the case was one for further inquiry. 
 It became and was his duty to take proper steps to obtain such 
 further inquiry. He, in conjunction with others, prepared a 
 Memorial to Her Majesty's Secretary of State for the Home 
 Department for the purpose of obtaining such further inquiry, 
 and signed and allowed others, who were also acquainted with 
 the facts and were fit and proper persons to do so, also to sign 
 the same. The writings, speakings, and publishings in the 
 statement of claim complained of (if any such be proved) are 
 the writing and publishing, and the reading, speaking and pub- 
 lishing of such memorial (the contents of which, however, the 
 
 B p. 2
 
 6i2 APPENDIX A. 
 
 defendant as aforesaid does not admit,) to persons in the neigli- 
 bourhood who were interested in the matters aforesaid and 
 were fit and proper persons to sign such memorial, and who 
 siofned or discussed with the defendant about signing the same 
 in conjunction with the defendant, and are conversations held 
 by the defendant with such persons as aforesaid under the 
 circumstances aforesaid, and the sending of the said memorial 
 to the said Right Honourable Her Majesty's Secretary of State 
 for the Home Department. And the defendant acted in good 
 faith in the several publications (if as aforesaid any such publi- 
 cations be proved,) and made the statements in conversations (if 
 any such statements bo proved,) reasonably and in good faith 
 believing the same to be true and acted in all the matters 
 aforesaid wholly without malice. By reason of the facts herein- 
 before appearing, the said several publications complained of 
 were and are privileged communications. 
 
 No. 12. 
 Reply. 
 
 1. The plaintiffs join issue on the statement of defence 
 herein save so far as it admits the allegations contained in the 
 statement of claim. 
 
 2. As to paragraph 12 of the statement of defence, the 
 plaintiffs deny that the plaintiff, M., frequently or ever neglected 
 or ill-treated the said child during its lifetime, or that there 
 was any feeling that the inquest upon the death of the said 
 child had been conducted in an unsatisfactory and insufficient 
 manner, and the plaintiffs further deny that there was any duty 
 upon the defendant or upon any one to obtain any further 
 inquiry. The plaintiffs deny that the publications of the said 
 libels and slanders were made for the purposes of and in relation 
 to the said memorial as alleged, or that they were made to 
 persons who were interested in the matters aforesaid, and the 
 plaintiffs deny that the said publications were or are privileged 
 communications. 
 
 3. The plaintiffs further say that the defendant, in what he 
 did, was actuated by malice.
 
 PLEADINGS IN LIBEL, 613 
 
 No. 13. 
 
 Rejoinder. 
 
 The defendant joins issue upon the second and third para- 
 graphs of the reply. 
 
 No. 14. 
 Lihel contained in a Placard. 
 
 Statement of Claim. 
 a D. V. E. F. 
 
 1. The plaintiff is, &c. 
 
 2. The defendant i.s, &c. 
 
 3. The defendant on or aLoiit the 10th day of January, 
 18 — , falsely and maliciously published a certain libellous 
 placard referring to the plaintiff as follows : — 
 
 " Notice. 
 
 " I the undersigned decline the offer made to me by C. D., of 
 Walcot, on Wednesday last of the sura of £50 to strike him 
 and to cause me to commit a breach of the peace. 
 
 January, 10th, 18—. E. F., of Walcot." 
 
 4. On or about the 11th. day of January, 18 — , the defendant 
 again published the same false, malicious, and libellous placard 
 set forth in the last paragraph. 
 
 5. On or about the 15th day of February, 18 — , the defendant 
 published a third printed placard, which placard was false, 
 malicious, and libellous, and was as follows : — 
 
 \^Here set out placard.'] 
 meaning thereby that the plaintiff, or someone at his instigation, 
 was guilty of the acts alleged to have been committed. 
 
 G. On or about the 17th day of March, 18—, the defendant 
 published a fourth placard which was false, malicious, and 
 libellous, and was as follows : — 
 
 [Here set out the placard.] 
 7. In consequence of the above-mentioned placards published
 
 6i4 APPENDIX A. 
 
 by the defendant the plaintiff has suffered much anno3'auce 
 and has been disgraced and subjected to loss of reputation and 
 of business and also suffered in liis credit and good name. 
 The plaintiff claims ^1000 damages. 
 
 No. 15. 
 Statement of Defence. 
 
 1. The defendant admits the facts stated in paragraphs 1 and 
 2 of the statement of claim. 
 
 2. The defendant as to paragraph No. 3 admits the publica- 
 tion of the placard therein referred to, but denies the allegation 
 that the same is false and malicious, and says that the matters 
 stated in the said placard are true in substance and in fact. 
 
 3. As to paragraph No. 4 the defendant denies the allegation 
 therein contained. 
 
 4. The defendant as to paragraph No. 5 admits the publica- 
 tion of the placard therein referred to, but denies the allegation 
 that the same is false and malicious ; the defendant also denies 
 the alleged meaning, and says that the several matters stated 
 in the said placard are true in substance and in fact, and were 
 published by the defendant for the purpose of endeavouring to 
 discover the person who committed the assault referred to in 
 the said placard, and with the hona fide object and intention of 
 bringing such person to justice and of prosecuting him to 
 conviction and not otherwise. 
 
 5. The defendant as to paragraph 6 admits the publication of 
 the placard therein referred to, but denies the allegation that 
 the same is false and malicious ; the defendant also denies the 
 alleged meaning, and says that the several matters set forth in 
 the said placard are true in substance and in fact, and were 
 publislied by the defendant with the hond fide object of en- 
 deavouring to discover the person or persons guilty of causing 
 the several annoyances and committing the several assaults and 
 offences mentioned in the said placard and of bringing the 
 offender or offenders to justice and not otherwise. 
 
 6. As to paragraph No. 7, the defendant denier the allega- 
 tions therein contained and each and every of them respectively.
 
 PLEADINGS IN LIBEL. 615 
 
 No. 16. 
 
 Action against the Manager of a Bank for showing to a 
 Customer an Anonymous Letter. 
 
 Rohshmv v. Smith, 28 L. T. 423. 
 Statement of Claim. 
 
 1. The defendant is the general manager of the London and 
 Yorkshire Banlv (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 con- 
 siderable business transactions with one J. H., also a merchant, 
 from Avhicli he had derived large profits, and several such trans- 
 actions were then in progress between the plaintiff and the 
 said J. H., and the said 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 woidd have given 
 the plaintiff a salary of from £3000 to i'4000 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 conceruino- the 
 plaintiff: — 
 
 "16th of August, 1876. 
 
 " Caution and worth inquir}^ 
 
 "Are you aware that the new partner of is George 
 
 Robshaw" (meaning the plaintiff), "formerly of George Robshaw 
 
 & Co., manufacturers, of , bankrupts" (meaning thereby 
 
 that the plaintiff had been member of a firm which had become 
 bankrupt), "into the burning of whose mills an inquiry was 
 made " (meaning thereby that the plaintiff had been guilty of, 
 and suspected and accused of, arson), "who Mr. R., the ac- 
 countant of , acting as trustee to the estate, wished to 
 
 prosecute " (meaning thereby that tlie plaintiff had defrauded 
 his creditors, and been guilty of offences against the bank- 
 ruptcy laws), " but was unable to find, as he fied away to 
 
 where he became partner or manager, at different times, to two 
 firms, both of whom after getting possession of considerable lots
 
 6i6 APPENDIX A. 
 
 of goods fled away " (meaning thereby that the plaintiff had 
 been guilty of obtaining goods by false pretences and othei* 
 
 like offences). " Eobshaw was in prison at for his share " 
 
 (meaning thereby that the plaintiff had been- found guilty by 
 law of the said offences, and had been in prison therefor). "He" 
 (meaning the plaintiff) "is the same man who was brought 
 
 before the magistrates for the misappropriation of certain 
 
 securities, and which case was compromised on his jsartner 
 paying a portion of the amount " (meaning thereby that the 
 plaintiff had been guilty of larceny). "Why has L. so suddenly 
 become a buyer, but to keep himself afloat, and to keep the 
 ball rollinu' as lonu' as he can before the crisis arrives ? He has 
 no money left " (meaning that the plaintiff had become partner 
 in, or manager of, a firm in an insolvent condition, which was 
 entering into fraudulent transactions to defraud its creditors, 
 and that the plaintiff was conniving at, aiding, and abetting in 
 such fraud). " This is worth inquiry, and being communicated 
 to your other branches, particularly at B., H. and S." 
 
 •i. 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 plaintift" into his employment as he 
 would otherwise have done, and the plaintiff has lost the 
 benefit of such employment and the emoluments thereof, and has 
 been much injured in his credit, reputation, and business, and 
 has been otherwise damnified. 
 
 The plaintiff claims £2000 damages. 
 
 No. 17. 
 Statement of Defence. 
 
 1, 2, o, 4. The defendant does not admit, &c. 
 
 5. The statements contained in the said letter are true in 
 substance and in fact, according to the fair and ordinary 
 meaning of the words used in the said letter. 
 
 G. The publication of the said letter to H., if made, was
 
 PLEADINGS IN LIBEL. 617 
 
 privileged, and was made hond 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. 
 
 No. 18. 
 Action for Publishing a Libellous Novel. 
 
 Statement of Defence. 
 
 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 falsely and maliciously. The defendants 
 printed and published the said book or novel for the writer 
 thereof, reasonably and hond fide believing the same to be 
 a work of pure 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.* 
 
 2. In answer to paragraphs 3, 4, 5, of the statement of 
 claim, the defendants deny that they printed or published the 
 the words therein set forth of or concerning plaintiffs or any 
 of them, as is alleged. 
 
 .3. In further answer to the said paragraphs the defendants 
 deny that the words therein set forth bear the sense therein 
 given to them. 
 
 * It may be doubted whether this is a defence to the action or only a 
 plea in mitigation of damages ; see ante, pp. 159, 384, o, 1 ; R. v. Knell, 
 1 Barnard. 305 ; >imith v. Ashley, 52 Mass. (11 Met.) 367.
 
 6i8 APPENDIX A. 
 
 No. 19. 
 
 Action against a Neivspaiier Proprietor. 
 Bona fide Comment on a Matter of Public Interest. 
 
 Statement of Defence. 
 
 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 February, 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 presentation 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 Februaiy, 1867. They are a fair and 
 accurate report of the j)r6ceedings in 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. 
 
 0. The words set out in paragraph o of the statement of 
 claim are a portion of a leading article which appeared in the 
 Times for the 13th of February, 1867. The said article was a 
 fair and impartial comment on the matters above referred to, 
 and was published by the defendant bond 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 ; 
 17 AV. E. 169 ; 19 L. T. 409. 
 
 No. 20. 
 
 Action against the Printers of a Keiospa^Dcr. 
 Report of a Judicial Proceeding. 
 
 Statejient of Defence. 
 
 1. The defendants are the printers and publishers of the 
 — Count 1/ Gazette.
 
 PLEADINGS IN LIBEL. 619 
 
 2. On tlie day of , 1S79, 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. 
 
 3. On the day of , 1879, the defendants pubhshed 
 
 as usual in their said Gazette a report of the proceedings before 
 the said magistrates on the preceding day, including an accurate 
 and impartial account of the plaintiff's application and the 
 reasons stated by the bench for their refusal, which is the 
 alleged libel, 
 
 4. Such account was published by the defendant 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 
 proceedings of public intei^est and concern. 
 
 5. And the defendants furtlier say that the publication com- 
 plained of is no libel. 
 
 As to paragraph 5, if it means anj'thing more than has been already said 
 in paragraph 4, see ante, p. 483. 
 
 No. 21. 
 
 Interrogatories in an Action against a Neivspaper Proprietor 
 (allowed in Lefroy v. Burnside, 4 L. E. (Ir.) 340 ; 41 L. T. 
 199 ; 14 Cox, C. C. 260 ; ante, p, 514). 
 
 "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 6tli day of July, 1878, or some other and what date, an 
 article 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 you, the defendant William Burnside, upon and 
 before the said Gth day of July, 1878, or some other and what 
 date, the proprietor, cither alone, or jointly with some other and 
 what person or persons, of the said newspaper ? 
 
 " Note. — The defendant must answer all the a,bove interro- 
 gatories on oath within ten days. 
 
 " Delivered by, &c."
 
 620 APPENDIX A. 
 
 No. 22. 
 
 Interrogatories on the part of the Plaintif, to he answered 
 by an Officer of the "Leeds Daily Keivs Company 
 (Limited)," and by the Defendant, William Lauries 
 Jackson. 
 
 " 1. Is the defendant, William Lauries Jackson, the editor or 
 publisher of the ' Leeds Daily News,' and luhat position does 
 he occupy in respect of the said newspaper ? 
 
 " 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 paragi'aphs of the natnre of those set 
 out in the statement of claim ? 
 
 "4. Did, the said William Lauries Jackson write, or have 
 anything to do witli tlie ivriting of, any and luhich of the 
 paragraphs mentioned in the statement of claim : and, if not, 
 who teas the writer of such paragraphs, and of each of them? 
 
 " o. Did the said William Lauries Jackson see any and 
 which of the said paragraphs before they ivere inserted in the 
 neivs'paper or before the newspaper was published or circulated, 
 and did he sanction the puhlicatlon of the said paragraphs, 
 or of any and, ivhich of them ? 
 
 " C. 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, 187-5, 19th August, 1875, 10th September, 1875, and 
 the numbers of the ' Leeds Daily News,' containing the para- 
 graph commencing with the word " Query," printed and pub- 
 lished by the Leeds Daily News Company (Limited), or by the 
 defendant William Lauries Jackson, or by both of them ? " 
 
 N.B. — The words in italics were struck out by Archibald, J., at Chambers 
 on January 8th, 1876; see Weekly Notes for 1876, p. 11 ; 1 Charley, 
 101 ; Bitt. 91 ; 20 Sol. J. 218 ; 60 L. T. Notes, 196. 

 
 PLEADINGS IN SLANDER. 621 
 
 No. 23. 
 
 Notice of the defendant's intentioii of giving evidence of an 
 Apology in Mitigation of Damages, to be delivered with 
 the Plea, under the 6 c& 7 Vict. c. 90, s. 1. 
 
 In the High Court of Justice, 
 Queen's Bench Division. 
 
 Between A.B. . . Plaintiff, 
 and 
 E.F. . . Defendant. 
 Take notice, that the defendant intends on the trial of this 
 cause to give in evidence, in mitigation of damages, that he 
 made [or offered] an apology to tiie plaintiff for the defamation 
 complained of in the statement of claim herein, before the 
 commencement of this action [or as soon after the commence- 
 ment 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]. 
 
 Yours, etc., 
 G.H., defendant's solicitor [or agent]. 
 To Mr. CD., plaintiff's 
 solicitor or agent. 
 
 Foi a precedent of a pica under the second section of Lord 
 Campl)eirs Libel Act (0 & 7 Vict. c. 96,) see arde, p. 488. 
 
 n. PRECEDENTS OF PLEADINGS IN ACTIONS FOR 
 
 SLANDER. 
 
 No. 24. 
 Words imputing a Crime. 
 Statement of Claim. 
 
 1. Tiic i^laintiff is a baker, carrying on business at , 
 
 in the county of Middlesex. 
 
 2. On or about the 8th day of May, 1880, the defendant
 
 62 2 APT END IX A. 
 
 falsely and inaliciousl}^ spoke and published of the plaintiff the 
 wards following, that is to say: — "He is a regular smasher" ; 
 the defendant 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 a niisdemeanor. 
 
 3. The plaintiff has, by reason of the premises, been greatly 
 injured in liis credit and reputation. 
 
 And the plaintifiP claims, &c. 
 
 No. 25. 
 Statement of Defence. 
 
 1. The defendant admits that he spoke and published the 
 words set out in paragraph 2 of the plaintiff's statement of 
 claim, but denies that he spoke them maliciously or Avith the 
 meaning in that jDaragraph 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 cus- 
 tomers every Saturday morning and receive the money due for 
 the bread delivered to them in the course of the week. 
 
 8. On the morning of Saturday, March the 27th, ISSO, the 
 defendant called on the jilaintiff and took the money for the 
 bread delivered to him during the week. Amongst the change 
 then given by the plaintiff to the defendant was a counterfeit 
 florin. Neither the f)laintiff nor the defendant knew or ob- 
 served at the time that the florin Avas 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 
 plaintift' gave him without demur two good shillings in exchange 
 therefor. 
 
 5. On the morning of Saturday, May the 8th, ISSt), when 
 the defendant called on the plaintiff as usual, the plaintiff
 
 ' PLEADINGS IN SLANDER. 623 
 
 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, when the defendant was paying the money over 
 to his employer at the office, Mr. N. discovered that the florin 
 Avas counterfeit. Thereupon the defendant, recollecting the 
 the similar occurrence mentioned in paragraphs 8 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 impnte to the plaintiff any criminal 
 offence. 
 
 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 Grisfffs were aware of the circumstances detailed above, 
 and knew to what the defendant was referring, and under- 
 stood that he spoke in joke, and did not intend to make any 
 serious charge against the plaintitf. 
 
 [N.B. This is a magnaiiiinous and conciliatory line of defence. The 
 plaintiff, if well advised, y\\\l at once settle the matter amicaljly. " All 
 imputations withdraAvn ; defendant to pay a guinea to a hospital named by 
 the plaintiff ; each party to pay their own costs." If he does not, the 
 defendant is almost sure of a verdict. See ante, pp. 107, 109 ; Tliom'pson v. 
 Bernard, 1 Camp. 48. But sometimes a defendant, if foolish and angry, 
 imsists 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 and be 
 cross-examined ; and he then proceeds to justify. These tactics will infal- 
 libly lead to a verdict for the phiintiff Avith heavy damages.] 
 
 No. 20. 
 Statement of Drfexce. 
 
 1. The defendant denies the allegations contained in para- 
 graphs 2 and 3 of the plaintiff's statement of claim, and each 
 and every of them.
 
 624 APPENDIX A. 
 
 2. The defeudaut does not admit that he spoke or published 
 the words set out in paragraph 2 of the plaintiff's statement of 
 claim ; but, if he did, the same are true in substance and in 
 fact. On March, 27th, LS80, the plaintiff uttered and passed to 
 the defendant a counterfeit florin, well knowing the same to be 
 counterfeit. On May 8th, 1880, the plaintiff uttered and 
 passed to the defendant another counterfeit florin, well knowino- 
 the same to be counterfeit. \Htatc any other instances in which 
 the plaintiff passed had coin to the defendant 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 misdemeanors. 
 
 No. 27. 
 
 Words imputing a Contagious Disorder. 
 
 L. V. K. 
 
 Statement of Claim. 
 
 1. At the time of the speaking and publishing by the de- 
 fendant of the words hereinafter set out, the plaintiff was a 
 tailor, and carrying on business as such, and was a married 
 man. 
 
 2. The defendant falsely and maliciously spoke and published 
 of the i^laintiff the Avords 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. 
 
 8. By reason of the premises the plaintiff was injured in his 
 credit and reputation,* and brought into disgrace among his 
 neighbours and friends, and has been deprived of, and ceased 
 to receive tJieir 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).
 
 PLEADINGS IN SLANDER. 625 
 
 " &c.," thereby meaning that the phiintiti' was in embarrassed 
 pecuniary circumstances, and unable to meet his liabilities. 
 
 5. By reason of the matters in the preceding paragraph 
 mentioned, the phiintiff was injured in his credit and reputation 
 as a tailor, and in his business,* and many persons, vjlio had 
 theretofore dealt 'ivlth tite 'plaintiff in his said baslness, ceased 
 to deal ivith him. 
 
 The plaintiff claims £ damages. 
 
 No. 28. 
 
 L. V. K. 
 
 Particulars. 
 
 The following are the best particulars the plaintiff can give 
 of the times, places, and j^ersons, when, where, and to whom 
 the alleged slanders were uttered, and the damages sustained. 
 
 The said slanders were uttered in the month of October, 1876, 
 in the presence of G. R., of — High Street, in the City of 
 Bath, and his manager, W. K., at — High Street, Bath 
 aforesaid. 
 
 The plaintiff' cannot give the names * of the persons who 
 have ceased to deal with him, but will prove a general diminu- 
 tion of receipts in business, and finds he is not invited and 
 received into society as he used to be. 
 
 The above particvdars are delivered pursuant to the order 
 of Master Butler, dated the 18th day of December, 1877. 
 Dated this 9th day of March, 1878. 
 
 R. c& F., Plaintiff's agents. 
 
 To . 
 
 Defendant's agent. 
 
 * The plaintilf being unable U> iiuiinj the persons referred lo in para- 
 graphs 3 and 5, the statement of claim was amended by striliing uut the 
 Words in italics above.
 
 626 APPENDIX A. 
 
 No. 29. 
 
 L. V. K. 
 
 Statement of Defence. 
 
 1. The defendant denies that he spoke and published of the 
 plaintiff the words in the 2nd and 4th paragraphs of the 
 statement of claim respectively set out. 
 
 2. The defendant does not admit the allegations in the 3rd 
 and 5th paragraphs of the statement of claim contained. 
 
 L. V. K. 
 Reply. 
 
 The plaintiff joins issue with the defendant upon his defence. 
 
 No. 30. 
 TForc/s Rjiokcn in a Foreign Language. 
 Statement of Claim. 
 
 / 
 
 1. The plaintiff is a farmer residing at LI. in the county of 
 Glamorgan. 
 
 2. The defendant is, &c. 
 
 3. On the day of 1880, the defendant falsely and 
 
 maUciously spoke and published of the plaintiff in the Welsh 
 language the words following, that is to say : — [^Here set out the 
 libel verhatiin in tJie Welsh language.] 
 
 4. The said words, being translated into the English language, 
 have, and were understood by the persons to whom they were 
 so published to have, the meaning and effect following, that is 
 to say : — [Here set out a literal translation of the libel in the 
 Englisli language, adding any innuendoes ivJtich may be 
 necessary^ 
 
 5. Whereby the plaintiff was injured in his credit and re- 
 putation, t^c. [Allege any sj^ecial damage that may exist.] 
 
 I 
 
 I
 
 PLEADh\GS IN SLANDER. 627 
 
 No. 31. 
 
 Words spoken of a Medical Man. 
 
 Statement of Claim. 
 
 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 neigh- 
 bourhood. 
 
 2. The defendant is a clergyman, residing in the said city. 
 
 3. On the 9th day of January, 1880, the plaintiff was called 
 in by the defendant to attend his infant daughter, who was 
 then lying dangerously ill. On the 14th day of January the 
 
 I said daughter died, through no negligence or default of the 
 
 plaintiff. 
 I 4. Thereupon the defendant falsely and maliciously spoke 
 i and published of the plaintiff in relation to his said profession 
 \ and business, and the plaintiff's conduct therein, the words 
 i^ following, that is to say:— "Mr. E. (meaning the plaintiff) 
 
 killed my child." 
 
 5. The defendant meant thereby that the plaintiff had been 
 
 guilty of feloniously killing his said daughter by treating her 
 
 improperly and with gross ignorance and Avith gross and 
 
 culpable want of caution and skill, and thus causing or 
 U accelerating her death. 
 
 ! 6. And in the alternative, the plaintiff says that the de- 
 ■j fendant meant thereby that the plaintiff had been guilty of 
 il misconduct and negligence in his said profession and business, 
 ' and had acted in his said profession and business negligently, 
 
 injudiciously, indiscreetly, and improperly, and had not done 
 j his duty by his patient, and Avas unfit to be employed as a 
 
 medical man. 
 
 7. In consequence of the defendant's words, the plaintiff has 
 ■i been and is greatly prejudiced and injured in his credit and 
 
 reputation, and in his said profession and l)usiness of surgeon 
 
 and general medical laractitioner. 
 
 >s s 2
 
 628 APPENDIX A. 
 
 No. 32. 
 
 Slander of a Clergyman. 
 
 A. V. C. 
 
 Statement of Claim. 
 
 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. The defendant is a farmer residing in the said parish. 
 
 3. It is, and was, tlie custom and the duty of the plaintiff as 
 such vicar as aforesaid to constantly visit the parochial school 
 in his said parish, and to superintend the management thereof 
 Miss E. B. was, and is, the mistress of the said school. 
 
 4. Whereupon the defendant, on the 2oth 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 liimself as such vicar as aforesaid 
 falsely and maliciously spoke and published of the plaintiff, 
 in relation to his character and profession as a clergyman 
 of the. Church of Euglaiid, and to his office and benefice 
 as such vicar as aforesaid, and to the jjlaintiff's conduct 
 therein, the words following, that is to say: — "Miss E. B. 
 (meaning thereby the said schoolmistress), &c " Mean- 
 ing 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 
 England, and had misconducted himself in his office and bene- 
 fice as such vicar as aforesaid, and was unfit to continue in the 
 same, or to hold any other preferment. 
 
 5. And on divers other occasions between the said 25th day 
 of April and the 4th day of May, 1880, the defendant falsely 
 and maliciously repeated the same slander with the like mean- 
 ing in the last paragraph assigned. 
 
 6. Whereby the plaintiff has been, and is, greatly injured in 
 his credit and reputation, and in his said character and pro- 
 fession as a clergyman of the Church of England, and in his 
 office and benefice as such vicar as aforesaid ; and has been 
 brought into public scandal, ridicule and contempt. 
 
 And the plaintiff claims £ damages. .,. 
 
 II
 
 PLEADINGS IN SLANDER. 629 
 
 No. 33. 
 
 Slander of a Parish Clerk. 
 
 L. V. P. 
 
 Statement of Claim. 
 
 1. The iDlaintiff is a verger and eliurch clerk, residing at 
 — . He has been since 1877 verojer and church clerk of the 
 
 district parish church of . 
 
 2. The defendant is the vicar or incumbent of the said 
 church. 
 
 3. In or about the last week of April, 1879, the defendant 
 falsely and maliciously spoke and published to one Mr. I. J. of 
 the plaintiff as such verger and church clerk as aforesaid, and 
 with reference to the conduct of the plaintiff in such office of 
 verger and church clerk the words following: — "Luke" (mean- 
 ing the plaintiff) " has broken offertory boxes open and taken 
 money from them, and has also taken money from the collect- 
 ing plates and used it for his own purposes," meaning thereby 
 that the plaintiff had feloniously stolen money forming part of 
 contributions for sacred and benevolent purposes. 
 
 4. The defendant also, about the same time as mentioned in 
 the last j)aragraph, with the like meaning, falsely and mali- 
 ciously spoke and published the said words or other words to 
 the same substance and effect of the plaintiff in relation to his 
 conduct in the said office to Mrs. O. P. and to various other 
 persons. 
 
 5. Through the said false and malicious statements of the 
 defendant the plaintiff has been greatly injured in his credit 
 and reputation, and has been by the churchwardens of the said 
 parish forbidden to perform the duties of his said office of 
 versrer and church clerk. 
 
 No. 34. 
 L. V. P. 
 
 Statement of Defence. 
 1. The defendant denies that the plaintiff was ever church
 
 630 APPENDIX A. 
 
 clerk of the district parish church of . He was until 
 
 recently verger and organ-blower at the said church. 
 
 2. The defendant does not admit that he ever spoke or pub- 
 lished the words complained of, or any other words to the same 
 substance and effect, as alleged in paragraphs 3 and 4 of the 
 statement of claim. 
 
 o. 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 defendant did in fact utter any such 
 words (which he does not admit), they were not spoken seriously 
 or maliciously, but solely in consequence, and under the in- 
 fluence of the said mania. There is and was no foundation 
 whatever for any such cliarge ;* and the defendant unreservedly 
 withdraws all imputation on the plaintiff's character, and ex- 
 ceedingly regrets that he ever spoke the said words (if in fact 
 he did speak them, which he does not admit). 
 
 4. The defendant denies the allegations contained in para- 
 graph 5 of the plaintiff's statement of claim, and each and 
 every of them. If the churchwardens of the said parish have 
 forbidden the plaintiff to perform the duties of verger and 
 organ-blower at the said church (Avhich the defendant does not 
 admit) they have not done so through or in consequence of any 
 words uttered by the defendant. 
 
 5. The defendant does not admit that he is under any 
 liability to the j)laintiff; but he brings into Court the sum of 
 iGlO, and says that the said sum is sufficient to satisfy the plain- 
 tiff's claim. 
 
 * See an\e, pp. 488, 9. 
 
 No. 35. 
 X. V. P. 
 Reply, 
 
 1. The plaintiff joins issue on paragraphs 1, 2, 3, and 4 of the 
 statement of defence, except so far as any part of the state- 
 ment of claim is thereby admitted.
 
 PLEADINGS IN SLANDER. 631 
 
 2. As to paragraph 5 of the statement of defence the plaintiff 
 says that the said sum of £10 is not enough to satisfy the 
 plaintiff's claim. 
 
 No. 36. 
 
 Words defamatory of a Trader in the vjay of his Trade. 
 
 Statement of Claim. 
 
 1. At all dates hereinafter mentioned the plaintiff carried 
 
 on, and still carries on, the trade and business of a at 
 
 in the county of . 
 
 2. On or about the day of , a.d. , the defendant 
 
 falsely and maliciously spoke and published of the plaintiff in 
 relation to his said trade and business and of and concerning 
 the plaintiff's mode of conducting the same, the words follow- 
 ing, that is to say : — [here set out the slander verbatim] ; mean- 
 ing thereby that the plaintiff cheated or was guilty of fraudulent 
 conduct in his said trade and business. [Or, meaning thereby 
 that the plaintiff was guilty of fraudulent and dishonest prac- 
 tices in his trade and business, and was, or had been, insolvent 
 and unable to pay his just debts.] 
 
 3. "Whereby the plaintiff was injured in his credit and repu- 
 tation as a , and in his said business and trade, and X., Y., 
 
 and Z., who had heretofore dealt with the plaintiff in his said 
 business, ceased to deal with him [and L., M., and N., who had 
 previously supplied the plaintiff watli goods on credit, thereupon 
 refused to sell any more goods to the plaintiff' on credit, as they 
 otherwise would have done.] 
 
 And the plaintiff claims £ . 
 
 No. 37. 
 Statement of Defence. 
 
 1. The defendant denies the several allegations contained in 
 paragraph 2 of the statement of claim.
 
 632 APPENDIX A. 
 
 2. The defendant never on any occasion or occasions spoke 
 or published of the plaintiff, as such trader or otherwise, all or 
 any of the words alleged in the said paragraph to have been 
 spoken by the defendant. 
 
 3. The defendant did not speak or publish the said words of 
 the jjlaintilF in relation to his trade or business, or of or con- 
 cerning his mode of conducting the same, or with the meaning 
 in the said paragraph imputed to the said words, or in any 
 other defamatory sense. 
 
 4. The said several words,without the said alleged meaning, if 
 spoken and published by the defendant at all (which he denies), 
 are respectively true in substance and in fact. Particulars are 
 delivered herewith. 
 
 5. The defendant denies the several allegations contained in 
 paragraph 8 of the statement of claim. 
 
 And by way of counter-claim, the defendant says : — 
 
 6. That heretofore, and before the publication of the alleged 
 slander, the plaintiff, c^c. 
 
 No. 38. 
 Slander of a Builder in the way of Jtis Trade. 
 8. v. If. 
 Statement of Claim. 
 1. The plaintiff is a builder carrying on business at C- 
 
 I 
 
 and the defendant is a mason, and was employed by the plain- 
 tiff from the month of October, 1878, until the month of August, 
 1879, when he left the plaintiff's employment. 
 
 2. After the defendant had left the plaintiff's employment 
 
 he made a statement to the Rev. A. B., the vicar of C , 
 
 concerning the i^laintiff in the following words : — " Whilst he 
 (meaning the plaintiff) was doing the work at Mrs. M.'s house 
 he stole the hay from the stack thei'e ; John saw him cut the 
 hay from the stack and take it away in his cart : he took two 
 loads whilst he was at work there." 
 
 3. The defendant also, on or about the 25th day of August, 
 1870, made a statement to Mrs. M. concerning the plaintifl:' in
 
 PLEADINGS IN SLANDER. 633 
 
 the following words : " Wliilst lie " (meaniDg the plaintiff) " was 
 doing the work for you, he" (meaning the plaintiff) "stole 
 your corn and hay, and cut and took away in his cart two loads 
 of your grass : " and in reply to a question put to him by the 
 said Mrs. M., the defendant said "he" (meaning the plaintiff) 
 " got up into the loft and got down through a trap-door to 
 where the corn was kept and stole it." 
 
 4. On the same occasion as is mentioned in the preceding 
 paragraph the defendant made the further statement to the 
 said Mrs. M. of and concerning the plaintiff: "Whilst he was 
 working for you here, he " (meaning the plaintiff) " stole grass 
 and corn from Mr. N., and he and Mr. N.'s gardener have 
 taken baskets upon baskets of vegetables from Mr. N.'s garden ;" 
 the defendant meaning that the plaintiff had induced Mr. N.'s 
 gardener to rob his master and to give him the stolen goods. 
 
 5. On the same occasion the defendant made this farther 
 statement to the said Mrs. M. of and concerning the plaintiff: 
 " When S. (meaning the plaintiff) was making that drain for 
 Mr. N. he used a lot of rotten old pipes that were no use;" 
 meaning thereby that the plaintiff had been guilty of miscon- 
 duct in his trade of a builder and had cheated the said Mr. N. 
 
 6. The whole of the said statements were false, and were 
 false to the knowledge of the defendant, and were made mali- 
 ciously with intent to injure the plaintiff. 
 
 7. By reason of the said statements the plaintiff has suffered 
 loss in his trade as aforesaid, and has lost the society of his 
 friends. 
 
 The plaintiff claims £50 damages. 
 
 No. 39. 
 
 >S'. V. W. 
 
 Statement of Defence. 
 
 1. The defendant denies that lie spoke or published the 
 words set out in paragraphs 2, 3, 4, and o, or any or either of 
 s\ich words.
 
 634 APPENDIX A. 
 
 2. The defendant was emploj-ed by the plaintiff to work at 
 the house of the Mrs. M. mentioned in the statement of claim. 
 Whilst he was so employed, certain facts came to his knowledge 
 relative to the disposition by the plaintiff and by the servants 
 of the said Mrs. M. of certain portions of her property. It 
 thereupon ])ecame and was the duty of the defendant to com- 
 municate such facts to the said Mrs. M., and to her son-in-law, 
 the Rev. A. B., the vicar of C* And the defendant says that 
 these communications are the alleged slanders, if any, and that 
 the same were made hond fide in the discharge of the said 
 duty, and not maliciously, nor with intent to injure the plaintiff, 
 and were and are therefore privileged. 
 
 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 in any defamatory sense. The 
 said words, without the said meaning, and according to their 
 fair and ordinary signification are true in substance and in fact. 
 
 4. The defendant does not admit the allegations contained in 
 paragraph 7 of the statement of claim. 
 
 * A bad plea, surely, so far as the vicar is concerned : no facts being 
 shown which create any duty to inform the vicar. 
 
 in. PRECEDENTS OF PLEADINGS IN ACTIONS 
 FOR SLANDER OF TITLE. 
 
 No. 40. 
 
 Lihcl on goods manufactured and sold hij another. 
 
 Western Counties Manure Co. v. Laives Chemical Manure Co. 
 
 (L. R. 9 Ex. 218 ; 43 L. J. Ex. 1711; 23 W. R. 5, ante, pp. 145, 148). 
 
 Declaration. 
 In the Exchequer of Pleas. 
 
 The 3rd day of February, A.D. 1874. 
 Devonshire to wit. 
 
 Tlte Western Counties and, Genercd Manure Co., Limited, 
 by A\'illiani Harris, their attorney, sue the Laives Chemical 
 Manure Co., Limited, for that at the time ui' the committing of
 
 PLEADINGS IN SLANDER OF TITLE. 635 
 
 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 pub- 
 blished and caused to be printed and published of and con- 
 cerning the plaintiffs, and of and concerning them as such 
 manufacturers and sellers of artificial manures, and of and 
 concerning them in the way of their said business, the words 
 following, that is to say: — \_Fov the ivords 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 
 tlie 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 luell knew ■* and by 
 reason of the premises certain persons and particularly George 
 Snell and A. Rowe who before and at the time of the com- 
 mitting 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 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 in 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 off, 
 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 tlie plaintiffs claim £2000. 
 
 * The words in italics were sulj.seiiuuutly struck out by consent.
 
 6^6 
 
 APPENDIX A. 
 
 No. 41. 
 
 Leaves Chemical Manure Co. ats. Western Counties and 
 
 General Manure Co., Limited. 
 
 Pleas. 
 
 In the Exchequer of Pleas. 
 The 23rd day of February, 1874. 
 
 1. The defendants by Arthur P. Bower their attorney say 
 that they are not guilty. 
 
 2. And for a second j)lea, the defendants say that the alleged 
 words are true in substance and in fact. 
 
 3. And for a third plea, the defendants deny the allegations 
 in the declaration contained that the said artificial manures 
 manufactured, sold, and traded in by the plaintiffs were not 
 inferior in quality to the said artificial manures to the de- 
 fendants' 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. 
 
 No. 42. 
 
 Western, &c., Co. v. Latvcs, &c., Co. 
 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. 
 
 [Ln 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.
 
 PLEADINGS IN SLANDER OF TITLE. 637 
 
 No. 43. 
 
 Lmves, &c., Co. ats. Western, dec, Co. 
 
 Joinder in Demurrer. 
 
 Feb. 28, 1874. 
 
 The defendants say tliat the said third plea is good in 
 substance. 
 
 No. 44. 
 
 Points. 
 
 The following are the points intended to be insisted on by 
 the plaintiffs upon the argument of this demurrer : — - 
 
 1. That the defendants' tliird 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. Tliat the declaration is good without the alleo-ations denied 
 in the third plea. 
 
 Subseqiiently for convenience sake, and by agreement between the counsel 
 for the parties respectively, tlie plaintiffs amended their pleadings by striking 
 out the averment "as the defendants well knew," and the defendants with- 
 drew their third plea and demurred to the dechiration instead. Tliis de- 
 murrer was decided in favour of the plaintiffs, and the case was snbse- 
 (piently settled without going to trial. A Stet Processus was entered on 
 October 9th, 1874. 
 
 No. 45. 
 
 In the Exchequer of Pleas. 
 
 Between the Western Counties and General 
 
 Manure Co., Limited .... Plaintiffs, 
 and 
 Lawes Chemical Manure Co., Limited , Defendants. 
 
 Interrogatories to be answered by tlie secretary, or 
 manager, or some other person on behalf of the defendants, by
 
 638 APPENDIX A. 
 
 affidavit in writing, to be SAVorn and filed in the ordinaiy 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 Feb., 1S73, for the 
 sale of their manures, or for any other purpcjse, in Plymouth 
 or elsewhere, in the county of Devon, or in the county of 
 Cornwall ? 
 
 2. Was any, and Avhat, inqidry made by the said W. M. W. 
 of J. M., then the secretary of the Devon and Cornwall Cham- 
 bers of Agriculture, in or about the month of Feb., 1873, 
 respecting certain manures sent by the said J. M., for analysis, 
 to Professor A. 1 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 circum- 
 stances under which, the time when, the place where, and the 
 j)erson or persons from whom he had procured the said 
 manures, or samples of manures ? 
 
 .3. Were the said manures, or samj^les of manures, forwarded 
 to Professor A. by the authority of the defendants, or their 
 agents or servants, or which of them 1 
 
 4. Was the said J. M., in or about the month of Feb., 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 shareholdei', 
 customer, or otherwise connected with tlic defendants ? 
 
 5. Did the defendants receive, in or about the month of 
 Feb., 1873, or at any other and what time, from the said J. M. 
 an analysis, or copy of an analysis, made, or purporting to bo 
 made, by Professor 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 plaintiifs 
 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 coj^y of the said analysis to
 
 PLEADINGS IN SLANDER OF TITLE. 639 
 
 each or 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 Feb., 1S73, 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, 
 procure from the plaintiffs, in or about the month of Dec, 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 hools, letters, docu- 
 ments, &c. 
 
 No. 46. 
 
 Slander of Title to Goods. 
 
 C. V. D. 
 
 Statement of Claim. 
 
 1. Tlic plaintiff, at all the dates hereinafter mentioned, 
 carried on and still carries on, the trade or business of a stone- 
 mason and contractor, at , in the county of . 
 
 2. On or about the day of , 1860, the plaintiff, in 
 
 the ordinary course of such trade and business, was desirous of 
 selling certain goods and chattels of the plaintiff's mentioned 
 in the advertisement hereinafter stated. He therefore caused 
 to be printed an advertisement, of which the following is a 
 copy : — " To be sold by auction, by Mr. F. S., on Monday and 
 Tuesday, January 30th and 31st, 1860, at the above works, the 
 whole of the working plant, the property of Mr. E. C, consist- 
 ing of, &c. [The advertisement then described a variety of 
 articles, icaygons, carts, sleej^ers, lAanhs, and sundry other 
 effects.] The sale to commence each day at twelve o'clock. 
 Cotsgate Hill, Ripon, January the 10th, 1860." 
 
 3. Thereupon the defendant, on the 2oth day of January, 
 1860, falsely and maliciously caused to be printed and pub-
 
 640 
 
 APPENDIX A. 
 
 lished of and couceriiing tlic plaintiff and of and concerning the 
 said intended sale as advertised, the false, scandalous, malici- 
 ous and defamatory libel following, 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 
 o-oods to be exposed for sale at the said advertised sale. 
 
 4. There is and was no foundation or pretence for the claim 
 set up by the defendant in the said libel, as he the defendant 
 then well knew ; and such claim was made maliciously and 
 without any reasonable or probable cause. 
 
 5. By means of the publication of the said libel, divers 
 persons who were desirous of purchasing the said goods or 
 some of them, and who would otherwise have attended at the 
 said sale, and would have bidden for, and purchased the said 
 o-oods or the greater part of them, particularly X., Y. and Z., 
 
 q]\ of in the said county, were hindered and prevented 
 
 from attending at the time and place appointed for the sale by 
 the said advertisement, and were deterred from bidding at such 
 sale, and declined to purchase the said goods or any part 
 thereof; and the plaintiff was then prevented from putting up 
 the said goods and chattels for sale, and became unable to 
 procure a fair and reasonable price for the same, and the said 
 intended sale failed altogether ; and the expenses incurred l)y 
 the plaintiff in and about preparing for the said intended sale 
 produced no advantageous result to the plaintiff; and the 
 plaintiff was otherwise much injured and damnified. 
 
 And the plaintiff claims, &c. 
 
 No. 47. 
 
 a v. D. 
 
 Statement of Defence. 
 
 1. The defendant admits that the plaintiff caused to be 
 printed the advertisement set out in paragraph 2 of the plaintiff's 
 statement of claim; Itut denies that the goods mentioned in
 
 PLEADINGS IN SLANDER OF TITLE. 641 
 
 such advertisement were the property of tlie phiintiff, and that 
 the intended sale by auction was in the ordinary course of the 
 plaintiff's trade and business. 
 
 2. The defendant admits that he caused to be printed and 
 published the words set out in paragraph 3 of the plaintiff's 
 statement of claim ; but denies that he did so falsely or mali- 
 ciously, or with the meaning in such paragraph alleged. 
 
 8. Before and at the time of the publication complained of, 
 the plaintiff had unlawfully detained and was unlawfully 
 detaining from the defendant certain timber, carts, rails, plant, 
 materials, and sundry other effects, the property of the defen- 
 dant. The defendant was informed and believed that the 
 plaintiff intended to dispose of the same (among other things) 
 at the said intended sale by auction. Wherefore the defendant 
 printed and published the said words for the purpose of warning 
 all persons from purcliasing the said goods and chattels so 
 unlawfully detained by the plaintiff as aforesaid and in the 
 bond fide belief that such warning was necessary for the protec- 
 'tiou of the defendant's own property, and without any malice 
 towards the plaintiff. 
 
 4. The defendant does not admit the allegations contained in 
 paragi-aphs 4 and 5 of the statement of claim, or any of them. 
 
 See Carr v. Duchdt, b H. & N. 783 ; 29 L. J. Ex. 4G8,as to paragraph 3. 
 
 No. 48. 
 
 Lihel in the nature of Slander of Title. 
 
 Hart and another v. Wall (2 C. P. D. 14G ; 40 L. J. C. P. 227 ; 
 2.5 W. R. 373). 
 
 Statement of Claim, 
 
 1. The plaintitfls were at the times hereinafter mentioned, 
 and still are, vocalists, and had been and were engaged to 
 sing at the " Sun Music Hall, Knightsbridge," and also at 
 the "London Pavilion Music Hall," for reward payable to 
 the plaintiffs for their services, and they appeared and sang 
 in pul)lic under the name of " The Sisters Hartridge." 
 
 T T
 
 642 APPENDIX A. 
 
 2. On the loth of January, 187G, the defendant falsely and 
 maliciously wrote and published of the plaintiffs, in the form 
 of a letter addressed to E. "Williams, Esq., the projjrietor of 
 the "Sun Music Hall," of the plaintiffs and of them as such 
 vocalists, and of their engagement at the " Sun Music Hall," 
 the words following; that is to say: — "January 15th, 1876. 
 E. Williams, Esq. My dear Sir, — Although I know it is quite 
 unintentional on the part of the lady advertisers (meaning 
 the plaintiffs), the advertisement attached at foot, if relied 
 upon in every particular by proprietors engaging them, is 
 calculated to lead such proprietors to incur the penalties 
 under the Copyright Act in certain cases, as I hold the power 
 of attorney over the jDcrforming rights of certain musical 
 publications belonging to two houses therein named, who only 
 have the copyrights vested in them, and a separate and dis- 
 tinct property never held by them. If all proprietors knew 
 this, it Avould be best ; but I have not time to apprise them. 
 I remain, yours truly, H. Wall ; " meaning that the plaintiffs 
 had no right to sing certain songs wdiich they advertised 
 themselves as about to sing at the said music hall. 
 
 3. In consequence thereof, and by the publication of the 
 said words, E. Williams dismissed the plaintiffs from his ser- 
 vice and terminated the said engagement at the " Sun Music 
 Hall." 
 
 4. On the 19th of January, 1876, the defendant falsely 
 and maliciously wrote and published of the plaintiffs, in the 
 form of a letter addressed to E. Loibl, Esq., the proprietor of 
 the "Pavilion Music Hall," of the plaintiffs, and of them as 
 such vocalists, and their engagements at the said music hall, 
 the words following ; that is to say : — " January 19th, 1876. 
 E. Loibl, Esq. Dear Sir, — That you may not be mi.sled, I beg 
 to state, that, with reference to an advertisement in the last 
 Era, wdiere the Misses Hartridge (meaning the plaintiffs,) give 
 notice that they have received unhesitating permission to 
 perform any niorceaux from an}" publication of certain pub- 
 lishers therein mentioned, it Avould be as well for 3^ou to know 
 that, if two of the firms really had pretended to have given 
 such unqualified .sanction, that I hold powers of attorney over 
 certain publications issued by them as to the sole liberty of 
 public performance, which right they never possessed. But
 
 PLEADINGS IN SLANDJCR OF TITLE- 643 
 
 Messrs. Chappell & Co.'s representative to-day informed me 
 that the}^ only granted permission for two songs in particular 
 (which were named), and they were not aware it was for 
 music hall singing, as they have a poor ojDinion of such 
 creating any demand for their publications ; and moreover 
 that they require the advertisement to he altered. And 
 Messrs. Metzler & Co.'s representative, in the presence and 
 hearing of Mr. Brown (the head man of Mr. Cunningham- 
 Boozey,) yesterday stated to me that he had granted no 
 permission whatever, but, on the contrary, that they had in- 
 formed the ladies (meaning the plaintiffs,) that their charge 
 for such permission would be 7s. per night {21. 2s. per week), 
 as much again as Messrs. Boosey named," (meaning that the 
 jalaintififs had advertised themselves to sing at the said music 
 hall songs which they had no right to sing). 
 
 5. In consequence of the publication of these words E. Loibl 
 dismissed the plaintiffs from his service, and dis23ensed with 
 their services and refused to employ them to sing at the said 
 music hall ; and the jDlaintiffs were and are by means of the 
 premises otherwise injured. 
 
 And the plaintiffs claim 100/. damages. 
 
 No. 49. 
 Statement of Defence. 
 
 1. The defendant denies the whole of the allegations con- 
 tained in the first paragraph of the statement of claim. 
 
 2. The defendant denies the allegations contained in para- 
 graphs 2, 3, 4 and 5 of the said statement of claim. 
 
 3. The defendant further denies that the alleged libels, and 
 each of them as disclosed in paragraphs 2 and 4 respectively, 
 were written and published as therein alleged. 
 
 4. The defendant further says that the alleged libels and each 
 or either of them were privileged communications written by 
 the defendant under the protection of privilege.* 
 
 * Tkis paragrajili wonld now Ijc deemed an insullieieiit plea of privilege, 
 see ante, p. 484. 
 
 T T 2
 
 644 APPENDIX A. 
 
 5. The defendant further says that the alleged libels, and 
 each or either of them, and each and certain part or parts 
 thereof, were true in substance and in fact. 
 
 Eeply. 
 
 The plaintiffs join issue with the defendant upon his state- 
 ment of defence. 
 
 IV. FORMS OF PLEADINGS, NOTICES, ETC., IN 
 THE COUNTY COURT. 
 
 No. 50. 
 
 Statement of Plaintiff's Cause of Action in Actions of Libel 
 
 or Slander remitted fo)' trial in a County Court. 
 
 In the County Court of , holden at 
 
 Between A. B Plaintiff, 
 
 and [address and descri2)tion], 
 CD. . . . . Defendant, 
 
 [addi^ess and description]. 
 Being an action of libel [or slander] commenced in her 
 Majesty's High Court of Justice, and remitted by order of 
 
 Master , under section 10 of "The County Courts Act, 1867," 
 
 to be tried in this Court. 
 
 Libel. 
 Tl)is action is brought : — 
 
 For that the defendant falsely and maliciously wrote and 
 published of and concerning the plaintiff the words following : 
 " he is a liar, a blackguard, and a scoundrel ; " and the 
 l^laintiff claims £200 damages. 
 
 Libel in the way of Trade. 
 Or, For that the defendant falsely and maliciously caused to be 
 printed and published of and concerning the plaintiflf in the 
 way of his trade as a grocer, the words following : "Mr. A. B. 
 savdsltis sugar and dusts his pepper,'" whereby the plaintiff was 
 injured in his trade, and lost the custom of several persons, 
 particularly X., Y., and Z., who had before dealt at the plaintiff's 
 shop ; and the plaintiff claims £.50 damages. >/ 
 
 Slander. 
 Or, For that the defendant falsely and maliciously spoke and
 
 COUNTY COURT FORMS, ETC. 645 
 
 published of and concerning the plaintiff the words following : 
 "yl. B. is a thief, and stole Mrs. Browns ducks;" and the 
 plaintiff claims £80 damages. 
 
 Slander in the vxiy of Trade. 
 
 Or, For that the defendant falsely and maliciously spoke and 
 published of and concerning the plaintiff, in the way of his 
 business and calling as a ratcatcher, the words following: "A. B. 
 is a great rogue, and instead of doing his best to kill the rats 
 he encourages the breed, so that he may have more employment 
 from the farmers," whereby the plaintiff was injured in his 
 business, and several farmers, particularly X., Y., and Z., who 
 had usually employed him to kill the rats on their farms, ceased 
 to do so ; and the plaintiff claims £20 damages. 
 
 Above is the statement of the plaintiff's cause of action. 
 
 Dated this day of , 18 — . 
 
 A. B., plaintiff, 
 
 or 
 E. F., plaintiff's solicitor. 
 To the registrar of the Court, 
 and to the defendant. 
 
 \^N.B. — The above Forms arc only given as exawi)Us ; and, the statement of 
 the plaintijf\ cause of action must in all cases be accorclivf] to the facts, and be 
 as concise as possible.] 
 
 No. 51. 
 
 ISotice of Trial of Action of Libel or Slander remitted^ for 
 trial in a County Court. 
 
 Being an action of libel [or sUmder] commenced in her 
 Majesty's High Court of Justice, and remitted by order of 
 
 Master , under section 10 of " The County Courts Act, 
 
 18G7," to be tried in this Court. 
 
 Take notice that this action will be tried at a court to be 
 holden on the day of , at — o'clock in the forenoon. 
 
 [N.B. — To the notice sent to the defendant the registrar must annex a copy of 
 the .statement of the plaintiff's cause of action.]
 
 646 APPENDIX A. 
 
 No. 52. 
 Affidavit jov leave to administer Interrogatories. 
 
 We, A, B., of , the above-named plaintiff [or defendant], 
 
 and L. M., of , solicitoi' in this cause for the said plaintiff 
 
 [or defendant], make oath, and say, first : — 
 
 And 1, the said A. B., for myself say : — 
 
 1. That I believe that T shall derive material benefit in this 
 cause from the discovery Avhich I seek by the interrogatories 
 which I require to be delivered herein. 
 
 2. That I believe that I have a good cause of [or defence to 
 this] action on the merits. 
 
 And I, the said L. M., say : — 
 
 3. That the plaintiff [or defendant] will derive material 
 benefit by the discovery which he seeks by interrogatories. 
 
 4. That I believe that the plaintiff [or defendant] has a good 
 cause of [or defence to this] action on the merits. 
 
 No. 53. 
 Notice of Set-off and Counterclaim. 
 
 Take notice, that the defendant intends at the hearing of this 
 cause to claim a set-off" and to counterclaim against the plaintiff's 
 demand, the particulars of which set-off or counterclaim are 
 annexed hereto. 
 
 Dated this day of , 18 — . 
 
 The defendant [or defendant's solicitor]. 
 
 To the registrar of the Court. 
 
 [N.B. — The registrar is to annex to this notice the x>0-rticuletrs of set-off and 
 counterclaim, as furnished hj defendant, seeded iciih the seal of the Court.] 
 
 No. 54. 
 Notice of Special Defence. 
 Take noticu that the defendant intends at the hearini
 
 COUNTY COURT FORMS, ETC. 647 
 
 this cause to give in evidence, and rely upon the fbllowiug 
 gi'ound of defence. 
 
 Dated this day of , 18 — . 
 
 The defendant [or defendant's solicitor.] 
 
 To the registrar of the Court. 
 
 Coverture. 
 
 That the defendant is now [or that she was, at the time when 
 the supposed claim arose, or the supposed contract or agree- 
 ment Avas made], the wife of , of . And that she was 
 
 married to him at , in the county of , on the day 
 
 of , and that she resides at , in the county of . 
 
 Statute of Lhnitations. 
 
 That the claim for which the defendant is summoned is 
 barred Ly a Statute of Limitation. 
 
 Justification. 
 
 That the libel [or slander] complained of is true in substance 
 and in fact. 
 
 \N.B. — Notices of Special Defence, in cases commenced in a Superior Court, 
 and sent to the County Court for trial under section 10 o/30 cD 31 Vict. c. 142, 
 must liave, in addition to the usual heading, the heading of Form No. 50.] 
 
 No. 55. 
 
 Notice to he given hy Defendant VMcler 6 cC- 7 Vict. c. 9G, 
 s. 1, in an Action for Libel or Slander remitted for trial in a 
 County Court. 
 
 Being an action for libel [or slander] commenced in her 
 Majesty's High Court of Justice, and remitted by order of 
 
 Master under section 10 of " The County Courts Act, 1867," 
 
 to be tried before this Court. 
 
 Take notice, that the defendant on the trial of this action 
 will give in evidence in mitigation of damages that he made 
 [or offered] an apology to the plaintiff for tlie libel [or slander] 
 complained of before the commencement of the action [ur as
 
 648 ■ AFPEXDIX A. 
 
 soon after the coinincncement of the action as he had an oppor- 
 tunity of doing so.] 
 
 To the registrar of the Court 
 and to the plaintiff. 
 
 No. hio. 
 
 Hotlce to he (jlven hy Defendant under 6 tC- 7 Vict. c. 96, s. 2, 
 in an Action foi' Libel remitted for trial in a County Court. 
 
 Being an action for libel commenced in her Majesty's High 
 
 Court of Justice, and remitted by order of Master under 
 
 section 10 oj" " The County Courts Act, 1867," to be tried 
 before this Court. 
 
 Take notice, that the defendant on the trial of this action 
 will give in evidence and rely upon the following ground of 
 defence ; (that is to say,) 
 
 That the libel was inserted in the newspaper called or known 
 
 by the name of , without actual malice and without gross 
 
 nesfliorence, and that before the commencement of the action 
 [or as soon after the commencement of the action as he had 
 an opportunity of doing so] the defendant inserted in the said 
 noAvspaper [or offered to publish in any newspaper or periodical 
 publication to be selected by the plaintiff] a full apology for the 
 
 said libel, and that the defendant has paid into Court £ by 
 
 way of amends for the injury sustained by the plaintiff by the 
 publication of the said libel. 
 
 Dated this day of , IS — . 
 
 C. D., defendant, 
 
 or 
 E. F., defendant's solicitor. 
 
 To the registrar of the Court 
 and to the plaintiff. 
 
 [X.B. — If the libel was i)uUishcd in aiiy iKriodical i)uhlication other than 
 neivspaiKr, alter the notice acconlinrjhj .'\
 
 CRIMIXAL PLEADINGS. 649 
 
 V. PRECEDENTS OF CRIMINAL PLEADINGS. 
 
 No. 57. 
 
 Information for a Libel on a Private Individual. 
 
 R. V. Newman (1 E. & B. 268, 558 ; 22 L. J. Q. B. 15G ; 17 Jur. 
 G17 ; 3 C. & K. 252 ; Dears. C. C. 85). 
 
 In the Queen's Bench. 
 
 Michaehnas Term, 15 Vict., A.D. 1851. 
 Middlesex to wit. 
 
 Be it remembered, that C. F. Robinson, Esq., coroner aod 
 attorney of our Lady the Queen in the Court of Queen's Bench, 
 ■who prosecutes for our said Lad}' the Queen in this behalf, 
 comes here into the said Court at Westminster, the 21st day of 
 November, in the fifteenth year of the reign of our said Lady, 
 and gives the Court to understand and be informed that John 
 Henry Newman, doctor of divinity, late of the parish of Aston, 
 in the county of Warwick, contriving and wickedly and malici- 
 ously intending to injure and vilify one Giovanni Giacinto 
 Achilli, and to bring him into great contempt, scandal, infamy, 
 and disgrace, on the 1st of October, A.D. 1851, did falsely and 
 maliciously compose and publish a certain false, scandalous, 
 malicious, and defamatory libel, containing divers false, scanda- 
 lous, malicious, and defamatory matters concerning the said 
 Giovanni Giacinto Achilli, that is to say : — [Here folloivs the 
 libel, set out verbatim with the necessary innuendoes]. Which 
 said false, scandalous, malicious, and defamatory libel, the said 
 John Henry Newman did then publish to the great damage, 
 scandal, and disgrace of the said Giovanni Giacinto Achilli, in 
 contempt of our said Lady the Queen, to the evil and -pev- 
 nicious example of all others in like case offending and against 
 the peace of our said Lady the Queen, her crown and dignity. 
 Whereupon the said coroner and attorney of our said Lady the 
 Queen, who for our said Lady the Queen in this behalf prose- 
 cuteth, prayeth the consideialion of the Court here in the 
 premises, and that due process of law may be awarded against 
 the said John Henry Newman in this behalf to make him 
 answer to our said Lady the Queen touching and concerning the 
 premises aforesaid.
 
 650 
 
 APPENDIX A. 
 
 No. 58. 
 
 Pleas to the above Information.* 
 
 In the Queen's Bench. 
 
 Michaehiias Term, 15 Vict., A.D. 1851. 
 
 1. And the said John Hemy Newman appears here in Court 
 by Henry Lewin, his attorney, and the said information is read 
 to him, which being by him heard and understood, he complains 
 to have been grievously vexed and molested under colour of the 
 premises, and the less justly because he saith that he is Not 
 Guilty of the said supposed offences in the said information 
 alleged, &c. 
 
 2. And for a further plea, the said John Henry Newman 
 saith that before the composing and publishing of the said 
 alleged libel, to wit, on the 1st of January, 1830, &c. : [Here 
 folloiu facts shoivlng the truth of the matters charged^ And 
 so the said John Henry Newman says that the said alleged libel 
 consists of allegations true in substance and in fact, and of fair 
 and reasonable comments thereon. 
 
 And the said John Henry Newman further saith, that at the 
 time of publishing the said alleged libel, it was for the public 
 benefit that the matters therein contained should be published, 
 because, he says, that great excitement prevailed and numerous 
 public discussions had been held in divers places in England on 
 divers matters of controversy between the churches of England 
 and Rome, with respect to which it Avas important the truth 
 should be known ; and inasmuch as the said G. G. Achilli took 
 a prominent part in such discussions, and his opinion and testi- 
 mony were by many persons appealed to and relied on as of a 
 person of character and respectability, with reference to the 
 matters in controversy, it was necessary for the purpose of more 
 effectually examining and ascertaining the truth, that the 
 matters in the said alleged libel should be publicly known, in 
 order that it might more fully appear that the opinion and testi- 
 mony of the said G. G. Achilli were not deserving of credit or 
 
 * The pleas originally filed were demurred to, and amended ; the 
 amended pleas were again demm-red to, as hcing too general in their state- 
 ments, and were then altered to the aljo\'e form.
 
 CRL^riNAL P LEADINGS. 651 
 
 consideration by reason of liis previous misconduct : [Here 
 follovj other facts shoivlng that it ivas for the 'public benefit 
 
 that the said matters charged should be published ]. And 
 
 so the said John Henry Newman says he published the said 
 alleged libel as he lawfully might for the causes aforesaid, and 
 this the said John Henry Newman is ready to verify. Where- 
 fore he prays judgment, &c. 
 
 No. 59. 
 
 Keplication. 
 
 Hilary Term, 16 Vict., 1852. 
 The said C. F. Robinson, Esq., coroner and attorney of our 
 said Lady the Queen, in the Court of Queen's Bench, who 
 prosecutes for our Lady the Queen as to the plea first pleaded, 
 puts himself upon the country, and as to the plea secondly 
 pleaded, saith that the said J. H. Newman of his own wrong 
 and without the cause in his said plea alleged, composed, and 
 published the said liljcl as in the said information alleged, &c. 
 
 Issue joined, Hilary Term, 16 Vict., 1S52. 
 
 No. 60. 
 
 Information ex officio /or a Seditious Libel. 
 
 R. V. John Home, clerk (afterwards John Home Tooke), (Cowp. 
 672 ; 11 St. Tr. 264 ; 20 How. St. Tr. 651). 
 
 Michaelmas Term, 17 Geo. III. a.d. 1776. 
 London to wit. 
 
 Be it remembered, That Edward Thurlow, Esq., attorney- 
 general of our present sovereign Lord the King, who for our 
 said present sovereign Lord the King prosecutes in this behalf, 
 in his proper person comes into the Court of our said present 
 sovereign Lord the King before the King himself, at West- 
 minster in the county of i\liddlcsex, on Tliur.'sday next after 
 fifteen days from the day of St. Martin iu this same term, and
 
 652 APPENDIX A. 
 
 for our said Lord the King giveili the Court here to understand 
 and be informed, that John Home, late of London, clerk, being 
 a wicked, malicious, seditious, and ill-disposed person, and 
 being greatly disaffected to our said present sovereign Lord the 
 King, and to his administration of the government of this 
 kingdom, and the dominions thereunto belonging, and wickedly, 
 maliciously, and seditiously intending, devising, and contriving 
 to stir up and excite discontents and seditions among His 
 Majesty's subjects, and to alienate and withdraw the affection, 
 fidelity, and allegiance of His said Majesty's subjects from His 
 said Majesty, and to insinuate and cause it to be believed 
 that divers of His Majesty's innocent and deserving subjects 
 had been inhumanJy murdered by His said Majesty's troops in 
 the province, colony, or plantation of the Massachusetts-Bay, in 
 New England, in America, belonging to the crown of Great 
 Britain, and unlawfully and wickedly to seduce and encourage 
 His said Majesty's subjects in the said province, colony, or 
 plantation, to resist and oppose His Majesty's government, on 
 the 8th day of June, in the loth year of the reign of our 
 present sovereign Lord George the Third, ko.., with force and 
 arms at London aforesaid, in the parish of St. Mary-le-Bow, in 
 the ward of Cheap, wickedly, maliciously, and seditiously, did 
 write and publish, and cause and procure to be written and 
 published, a certain false, wicked, malicious, scandalous and 
 seditious libel, of and concerning His said Majesty's govern- 
 ment, and the employment of His trooj)s, according to the 
 tenor and effect following : " Kinr/'s Arms Tavern, CornhiU, 
 June 7tJi, 1775. At a special meeting this day of several 
 members of the Constitutional Society, during an adjournment, 
 a gentleman proposed, that a subscription should be imme- 
 diately entered into (by such of tlic members present who 
 might approve tlie purpose), for raising the sum of £100 — to be 
 applied to the relief of the widows, orphans, and aged parents 
 of our beloved American fellow Rul)jects, who, faithful to the 
 character of Englishmen, preferring death to slaver}^ were, for 
 that reason only, inhumanly murdered by the King's (meaning 
 His said Majesty's) troops, at or near Lexington and Concord, 
 in the province of Massachusetts (meaning the said province, 
 colony, or plantation of the Massachusetts-Bay, in New England, 
 in America) on the 19th of last April; which sum being imme-
 
 CRIMINAL PLEADINGS. 653 
 
 diately collected, it was thereupon resolved, that Mr. Home 
 (meaning himself the said John Home) do pay to-morrow into 
 the hands of Messieurs Brownes and CoUison, on the account of 
 Dr. Franklin, the said sum of iJlOO, and that Dr. Franklin be 
 requested to apply the same 10 the above-mentioned purpose. — 
 John Home" (meaning himself the said John Home) in contempt 
 of our said Lord the King, in open violation of the laws of this 
 kingdom, to the evil and pernicious example of all others in 
 the like case offending, and also against the peace of our said 
 present sovereign Lord the King, his crown and dignity. 
 \Then follow several counts for the several publications of the 
 same libel in the various newspapers^ 
 
 And the said attorney-general of our said Lord the King 
 for our said Lord the King further gives the Court here to 
 understand and be informed that the said John Home, being 
 such person as aforesaid, and again unlawfully, wickedly, 
 maliciously, and seditiously intending, devising, and contriving 
 as aforesaid, afterwards, to wit, on the 14th day of July, in the 
 loth year aforesaid, with force and arms at London aforesaid, 
 in the parish and Wcxrd aforesaid, wickedly, maliciously, and 
 seditiously did write and publish, and cause and procure to be 
 written and published, a certain false, wicked, malicious, 
 scandalous, and seditious libel, of and concerning His said 
 Majesty's government, and the employment of His troops, 
 according to the tenor and effect following : — " I (meaning 
 himself the said John Hornc) think it proper to give the 
 unknown contributor this notice, that I (again meaning himself 
 the said John Home) did yesterday pay to Messrs. Brownes and 
 Collison, on the account of Dr. Franklin, the sum of £50 and 
 that I (again meaning himself the said John Home) will write 
 to Dr. Franklin, requesting him to apply the same to the relief 
 of the widows, orphans, and aged parents of our beloved 
 American fellow subjects, who, faithful to the character of 
 Englishmen, preferring death to slavery, were (for that reason 
 only) inhumanly nuu'dered by the King's (meaning His said 
 Majesty's) troops, at or near Lexington and Concord, in the 
 province of Massachusetts (meaning the said province, colony, or 
 plantation of the Massachusetts-Bay in New England in America) 
 on the liith of April last, — John Home " (again meaning him- 
 self the said John Home) in contenqjt of our said Lord the
 
 654 APPENDIX A. 
 
 King, in open violation of the laws of this kingdom, to the evil 
 and pernicious example of all others in the like case offending, 
 and also against the peace of our said prevSent sovereign Lord 
 the King, his crown, and dignity. \The,n follow other counts 
 for other imhlications of the same libel.'] Whereupon the said 
 attorney-general of our said Lord the King, who for our said 
 present sovereign Lord the King prosecutes in this behalf, prays 
 the consideration of the Court here in the premises, and that 
 due process of law may be awarded against him, the said John 
 Home, in this behalf, to make him answer to our said present 
 sovereio'n Lord the King touching and concerning the said 
 premises aforesaid, &c. 
 
 E. Thurlow. 
 
 No. 61. 
 Indictment for a Blasphemous Libel. 
 
 , to wit. 
 
 The jurors for our Lady the Queen upon their oath 
 present that A. B., being a wicked and evil-disposed person, 
 and disregarding the laws and religion of the realm, and 
 Avickedly and profanely devising and intending to bring the 
 Holy Scriptures and the Christian religion into disbelief and 
 
 contempt among the people of this kingdom, on the da}^ 
 
 of , A.D ., unlaAvfully and wickedly did compose, print, 
 
 and publish, and cause and procure to be composed, printed, 
 and published, a certain scandalous, 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, certain 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 religion, according to the tenor and effect 
 following, that is to say, [liere set out other blasphemous 
 passages] : to the high displeasure of Almighty God, to the
 
 CRIMINAL r LEADINGS. 655 
 
 great scandal and reproach of the Chrislian religion, to the 
 evil examjjle of all others in the like case offending, and against 
 the peace of our said Lady the Queen her crown and dignity. 
 
 No. 62. 
 
 Indictment for puhlisldiig 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 yoiuig and of divers 
 
 other liege subjects of our said Lady the Queen, on the 
 
 day of . A.D. , in a certain open and j)ublic 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 incturc as ivill manifestly shoiv 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. 63. 
 
 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 person, and wickedly, maliciously, and seditiously 
 contriving and intending the peace of our Lady the Queen 
 and of this realm to dis(juiet and disturb, and the liege 
 subjects of our said Lady the Queen to incite and move to
 
 656 APPEXDIX A. 
 
 hatred and dislike of the person of our said Lady tlie Queen 
 and of the government 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 insurrections, riots, 
 tumults, and breaches of the peace, and to prevent by force and 
 arms the execution of the laws of this realm and the preserva- 
 tion of the public peace, on the day of , A.D. , 
 
 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 publish, utter, pronounce, and declare with a loud voice 
 of and concerning "the government established by law within 
 this realm, and of and concerning 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 
 eno-asfed in divers insurrections, riots, and breaches of the public 
 peace, amongst other words and matter, the false, wicked, se- 
 ditious and inflammatory words and matter following, that is 
 to say : — \\ievc set out the seditious words vei-batim] ; in con- 
 tempt 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 j^eace of our 
 said Lady the Queen, her crown and dignity. 
 
 No. 04. 
 
 Indictment for Defamatory Words spolien 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. was 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, tresiDasses, and other misdeeds com- 
 
 i
 
 CRIMINAL PLEADINGS. 657 
 
 mitted 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 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 afore- 
 said, 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 depositions 
 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 Lad3^ the Queen, did ]3ublish, 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 seditious words and matter follow- 
 ing, that is to say : — [Here, set out the seditious uvrds 
 verbatim'] ; to the great scandal and reproach of the administra- 
 tion of justice in this kingdom, to the great scandal and 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. 05. 
 
 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, maliciously, and unlawfully contriving and intendino- 
 
 r r
 
 658 APPENDIX A. 
 
 to iujvire, vilify, and prejudice the said C D., and to brino- 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 wTite 
 
 and publish, and cause and procure to be written and published, 
 a false, scandalous, malicious, and defamatory libel [in the form 
 of a letter directed to one E. F., containing divers false, scan- 
 dalous, malicious, and defamatory matters and things] of and 
 concerning the said C. U. [and of and concerning him in his 
 said profession and business, and of and concerning his conduct 
 and behaviour therein], according to the tenor and effect 
 following, that is to say : — \B.eve, set out the libel verbatim, 
 with all necessary innuendoes^ 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. GO. 
 
 Indictment under s. 4 of Lord Campbell's Act. 
 
 \Comm,ence as in the preceding precedent ; then set out the 
 libel tuith all necessary innuendoes, and conclude as fal- 
 lows'] : — 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, hei crown and dignity. 
 
 No. 67. 
 
 Indictment under s. 5 of Lord Campbell's Act. 
 
 [This will ^jrecise/?/ folloio the preceding form, merely 
 omitting the icords : — "he, the said A. B., then well knowing 
 the said defamatory libel to be false,"] 
 
 f
 
 CRIMINAL PLEADINGS. 659 
 
 No. 68. 
 
 Dermurrer to an Indictment or Infovmation. 
 
 And the said A. B., in his own proper person, cometh into 
 Court here, and, having heard the said indictment [or informa- 
 tion] read, 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 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 information] in this 
 behalf, the said A. B. prays judgment, and that by the Court 
 he may be dismissed and discharged from the said premises in 
 the said indictment [or information] specified. 
 
 No. 69. 
 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 laAv to comiDel the 
 said A. B. to answer the same ; and the said J. N., who prose- 
 cutes 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 ansAvered to the said indictment [or in- 
 formation], 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 convicted of the premises in the 
 said indictment [or information] specified. 
 
 No. 70. 
 Pleas to an Indictment. 
 
 At the assizes and general delivery of the Queen's gaol for 
 
 the county of , holden in and for the said county on the 
 
 u u 2
 
 66o APPENDIX A. 
 
 day of , A. D. , Cometh in Court the said A. B., 
 
 in his own proper person, and having heard the said indictment 
 read, saith he is not gnilty of the said premises in the said 
 indictment above specified and charged upon him, and of this, 
 he the said A. B. puts himself upon the country, &c. 
 
 And for a further plea in this behalf, the said A. B. says that 
 our Lady the Queen ought not farther to prosecute the said 
 indictment against him, because he says that it is true that 
 SJIere state facts showing the truth of every matter charged in 
 the alleged libel]. And the said A. B. further saith that before 
 and at the time of the publication in the said indictment men- 
 tioned \_Here state facts showing that it was for the puhlic 
 benefit that the said matters charged should be published], by 
 reason whereof it was for the public benefit that the said 
 matters so charged in the said indictment, and all and every of 
 them should be published. And this he the said A. B. is ready 
 to verify, wherefore he prays judgment and that by the Court 
 here he may be dismissed and discharged from the said pre- 
 mises in the said indictment above specified. 
 
 No. 71. 
 
 Replication to the above Pleas. 
 
 And thereupon J. N. [the clerk of arraigns, cfcc] who prose- 
 cutes for our said Lady the Queen in this behalf as to the plea 
 of the said A. B. by him firstly above pleaded, and whereof the 
 said A. B. hath put himself upon the country, doth the like, 
 &c. And as to the j^lea of the said A. B. by him secondly above 
 pleaded, the said J. N., who prosecutes as aforesaid, says that 
 our said Lady the Queen ought not by reason of anything in 
 the said second plea alleged to be barred or precluded from 
 prosecuting the said indictment against the said A. B. ; because 
 he says, that he denies the said several matters in the said 
 second plea alleged, and saith that the same are not, nor are 
 nor is any or either of them, true ; but that the said A. B. of 
 his own wrong, and Avithout the cause and matter of defence in 
 his said second plea alleged and set forth, committed the 
 offence and published the said libel in manner and form as in
 
 CRIMINAL PLEADINGS. 66i 
 
 the said indictment is mentioned. And this he, the said J. N. 
 prays may be inquired of by the country, &c. And the said 
 A. B. doth the like. 
 
 No. 72. 
 Deiniirrer to a Plea. 
 
 And J. N., who prosecutes for our said Lady the Queen in 
 this behalf, as to the said plea of the said A. B. by him above 
 pleaded, saith that the same, and the matters therein contained, 
 in manner and form as the same are above pleaded and set 
 forth, are not sufficient in law to bar or preclude our said Lady 
 the Queen from prosecuting the said indictment against him 
 the said A. B., and that our said Lady the Queen is not bound 
 by the law of the land to answer tlie same ; and this he, the 
 said J. N., who prosecutes as aforesaid, is ready to verify : 
 Avherefore, for want of a sufficient plea in this behalf, he the 
 said J. N. for our said Lady the Queen, prays judgment, and 
 that the said A. B. may be convicted of the premises in the said 
 indictment specified. 
 
 No. 73. 
 
 Joinder in Demurrer 
 
 And the said A. B. saith, that his said plea, by him above 
 pleaded and the matters therein contained, in manner and form 
 as the same are above pleaded and set forth, are sufficient in law 
 to bar and preclude our said Lady the Queen from prosecuting the 
 said indictment against him the said A. B., and the said A. B. 
 is ready to verify and prove the same, as the said Court here 
 .shall direct and award : wherefore, inasmuch as the said J. N., 
 for our said Lady the Queen, hath not answered the said plea, 
 nor hithertu in any manner denied the same, the said A. B. 
 prays judgment, and that by the Court here he may be dismissed 
 ;nid discharged IVoui tljc siiid premises in the said indictment 
 specified.
 
 662 APPENDIX B. 
 
 APPENDIX B. 
 
 REPORT FROM THE SELECT COMMITTEE OF THE 
 HOUSE OF COMMONS ON THE LAW OF LIBEL. 
 
 Committee nominated : — Mr. Attorney General ; Sir John Holker; 
 Mr. Courtney ; Mr. Staveley Hill ; Mr. Alexander Sullivan ; 
 Baron Henry de Worms ; Mr. Edward Leatham ; Mr. 
 Gregory ; Mr. Blennerhassett ; Mr. Floyer ; Br. Cameron ; 
 Mr. Richard Paget ; Mr. Errington ; Mr. Master ; Mr. 
 Hutchinson. 
 
 The Select Committee re-appointed to inquire into the Laiu of 
 Newspaper Libel have agreed to the following Report. 
 
 Your committee have not thought it necessary to call 
 witnesses upon the matters referred to them. They have had 
 the advantage of the evidence taken by the Select Committee 
 of 1879, who, owing to the short time at their disposal, were 
 unable to leport, and your committee are of opinion that 
 through the labours of the former committee sufficient informa- 
 tion has been accumulated for the purposes of their inquiry. 
 
 Your committee have confined themselves to an examination 
 of the state of the law affecting civil actions and criminal 
 j)rosecutions for newspaper libel, and to the changes which, in 
 their judgment, should be inade therein. 
 
 It appears to your committee that one of the most important 
 points of the subject referred to them is the question of exten- 
 sion of privilege to newspaper reports of the proceedings of public 
 meetings. 
 
 Your committee, after careful consideration, have come to the 
 conclusion that the balance of convenience requires that further 
 protection should be given to such reports. 
 
 Your committee accordingly recommend that any report 
 joublished in any newspaper of the proceedings of a public 
 meeting should be privileged, if such meeting was lawfully con- 
 vened for a lawful purjDOse, and was open to the public, and if
 
 APPENDIX B. 663 
 
 sncli report was fair and accurate, and published without malice, 
 and if the publication of the matter complained of was for the 
 public benefit. 
 
 But your committee are of opinion that such protection 
 should not be available as a defence in any proceeding if the 
 plaintiff or prosecutor can show that the defendant has refused 
 to insert a reasonable letter or statement of explanation or 
 contradiction by or on behalf of such plaintiff or prosecutor. 
 
 Your committee recommend that no criminal prosecution 
 shall be commenced against the proprietor, publisher, editor, or 
 anyone responsible for the publication of a newspaper, for any 
 libel published therein, without thejiat of the Attorney General 
 being first obtained. 
 
 Your committee are also of opinion that the name of every 
 proprietor of a newspaper, or, in the case of several persons 
 engaged as partners in such proprietorship, the names of all 
 such persons should be registered at the office of the Registrar 
 of Joint Stock Companies, with full particulars of the addresses 
 and occupations of all such persons, or of any change therein. 
 
 14 July, 1880.
 
 664 APPENDIX C. 
 
 APPEXDIX C. 
 
 STATUTES. 
 
 CONTENTS. 
 
 PAGE 
 
 3 Ethv. I. Stat. Westminster I. c. 34 665 
 
 13 Edw. I. Stat. 4 ib. 
 
 2 Rich. 11. St. I. c. 5 ih. 
 
 12 Eich. II. c. 11 ib. 
 
 13 Car. II. Stat. I. c. 1 ih. 
 
 4 William & Mary, c. 18, s. 1 666 
 
 32 Geo. III. c. 60. (Mr. Fox's Libel Act) 667 
 
 39 Geo. III. c. 79 668 
 
 51 Geo. III. c. 65, s. 3 669 
 
 60 Geo. III. & 1 Geo. IV. c. 8, ss. 1 & 2 ih. 
 
 5 Geo. IV. c. 83, s. 4 670 
 
 6 & 7 Will. IV. c. 76, s. 19 671 
 
 1 & 2 Vict. c. 38, s. 2 ih. 
 
 2 & 3 Vict. c. 12, ss. 2, 3, 4 . 672 
 
 3 & 4 Alct. c. 9 ib. 
 
 6 & 7 Vict. c. 96. (Lord CaiupbelFs Libel Act) 674 
 
 8 & 9 Viet. c. 75 677 
 
 9 & 10 Vict. c. 33, s. 1 678 
 
 11 & 12 Vict. c. 12, s. 3 ih. 
 
 15 & 16 Vict. c. 76 (C. L. P. Act, 1852), s. 61 679 
 
 18 & 19 Vict. c. 41 ih. 
 
 20 & 21 Vict. c. 83 680 
 
 23 & 24 Vict. c. 32 682 
 
 43 & 44 A'ict. c. 41 (Burial Laws Ameixlment Act, 1880), s. 7 . . ib.
 
 A.D. 1285.] STATUTES. 665 
 
 APPENDIX OF STATUTES. 
 THE STATUTE OF CIRCUMSPECTE AGATIS. 
 
 13 EDW. I. Stat. 4. 
 
 [a.d. 1285.] 
 
 The King to his juelges .sendeth greeting : — 
 
 1. Use yourselves circumspectlj' in all matters concerning the Bishoj) of 
 Xorwich and his clergy, not punishing them if they hold plea, in Court 
 Christian, of such things as be mere spiritual, that is to ■vvlt, of penance 
 enjoined by prelates for deadly sin, as fornication, adultery, and such 
 like, for tlie which sometimes corporal penance, and sometime 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, v:hen 
 money is not demanded, but [a thing done] for punishment of sin, and likewise 
 for breaking an oath 
 
 12. In causes of defamation, prelates may freely correct, the King's ^prohibi- 
 tion notwithstcmding ; first enjoining a corporcd penance, lohich, if the party 
 will redeem, the 2yrelate may laufuHy receive the money, though the prohibition 
 be showed. 
 
 '[N.B. — The words in italics, being rendered unnecessary by the 18 & 19 
 Vict. c. 41, are now repealed by the Stat. Law. Kevn. Act, 1863, 26 & 27 
 Vict. c. 125.] 
 
 SCANDALUM MAGNATUM. 
 
 3 Edw. I. Stat. Westminster I. c. 34 ante, p. 133 
 
 2 Rich. II. St. I. c. 5 ante, p. 134 
 
 12 Rich. II. c. 11 ib. 
 
 13 CAR. II. Stat. I. c. 1. 
 
 [a.d. 1661.] 
 S. 3. Axu to the end that no man hereafter may be misled into any 
 seditious or uncjuiet demeanour out of an opinion that the Parliament 
 begun and held at Westminster upon the third day of iSTovember, in the 
 year of our Lord 1640, is yet in being which is undoubtedly dissolved and 
 determined, and so is hereby declaied and adjudged to be fully dissolved 
 and determined, or out of an opinion that there lies any 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 eitlier of tlieiii have a legislati\e power 
 without the King, all which assertions have been seditiously maintained in 
 s >me pamphlets lately printed, and are daily ]irom()ted liy the active
 
 666 APPENDIX C. [a.d. 1692. 
 
 enemies of our peace and happiness ; Be it therefore further enacted by 
 the anthoritj aforesaid, tliat if any person or persons at any time after the 
 four and twentieth day of June, in the year of our Lord 1661, shall mali- 
 ciously and advisedly, by writing, printing, preaching, or other speaking 
 express, publish, utter, declare, or affirm that the Parliament begun at 
 Westminster upon tlie third day of November, in the year of our Lord 
 1640, is not yet dissolved, or is not deterndned, or that it ought to be in 
 being, or hath 3'et any continuance or existence, or that there lies any 
 obligation upon him or any other person from any oath, covenant, or 
 engagement wliatsoever, to endeavour a change of government either in 
 church or state, or that both Houses of Parliament, or either House of Par- 
 liament liave or hath a legislative power without the King, or any other 
 words to the same effect, that then every such person and persons so afore- 
 said offending shall incur the danger and penalty of a premunire men- 
 tioned in a statute made in the 16th year of the reign of King Eichard 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 imjjosed 
 upon the sulyects of this realm against tlie fundamental laws and liljerties 
 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 taxes, or raising of forces and 
 arms, to which the royal assent either in person or by commission was not 
 expressly had or given, were in tlieir first creation and making, and still 
 are, and so shall l^e taken to be null and void to all intents and purposes 
 wdiatsoever 
 
 4 WILLIAM & MARY, c. 18. 
 
 An Act to ijrerent malicious informntions in the Corort of King's Bench. 
 
 [a.d. 1692.] 
 S. 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 aforesaid, 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 siich information or informations is or are to be exhibited in 
 the penalty of twenty pounds, that he, she, or they will effectually prose- 
 cute such informations or iulbrmation, and abide by and observe such 
 orders as the said Court sliall 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 impowered to take, after the taking 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.D. I792-] STATUTES. 667 
 
 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 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 charges 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 i^rosequi to be entered then in any of 
 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 information in open Coiut certify upon record that there was a reason- 
 able cause for exhibiting such information. And in case the said inlormer 
 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. 
 
 MR. FOX'S LIBEL ACT. 
 
 32 GEO. III. c. GO. 
 
 [A.D. 1792.] 
 An Act to remove doubts resiKcting the Functions of Juries in Cases of 
 
 Libel. 
 
 Whereas doul;>ts have arisen whether on the trial of an indictment or in- 
 formation for the making or publishing any lil^el, where an issue or issues 
 arc joined Ijetween the King and the defendant or defendants, on 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 ]\rajesty, l)y and Avith 
 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 Avhole matter put in issue upon 
 such indictment or information, 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 defendants guilty merely on the proof of 
 the publication by such defendant or defendants of the paper charged to 
 lie a lil)el, and of the sense ascrilied to the same in such indictment or 
 iuforination. 
 
 2. Provided always, that on every such trial tlie Court or judge before 
 whom such indictment or information shall be tried shall, according to their 
 or his direction, give their ov his opinion and directions to the jury on tlie
 
 668 APPENDIX C. [a.d. 1799. 
 
 matter in issue between the King and tlie tlefendant or defendant?, in like 
 manner as in other criminal cases. 
 
 3. Provided also, that nothing herein contained shall extend or be con- 
 strued to extend to prevent the jury from finding a special verdict, in their 
 discretion, as in other criminal cases. 
 
 4. Provided also, that in case tlie jury shall find the defendant or defen- 
 dants guilty it shall and may be lawful for the said defendant or defendants 
 to move in arrest of judgment, on such ground and in such manner as by 
 law he or they might have done before the passing of this Act, anything 
 herein contained to the contrary notwithstanding. 
 
 39 GEO. III. c. 79. 
 
 [A.D. 1799.] 
 
 S. 28. Nothing in this Act contained shall extend or be construed to 
 extend to any papers printed by tlie authority and for the use of either 
 House of Parliament. 
 
 S. 29. Every person wlio shall print any paper for hire, reward, gain, or 
 profit, shall <arefully preserve and keep one copy (at least) of every paper 
 so printed by him or her, on which he or she shall write, or cause to be 
 written or printed, in fair and legible characters, the name and place of 
 abode of the person or persons by whom he or she shall be em^Joyed to 
 print the same, and every person printing any paper for hire, reward, gain, 
 or profit wlio shall omit or neglect to write, or cause to be written or 
 printed as aforesaid, the name and place of his or her employer on one of 
 such printed papers, or to keep or preserve the same for the space of six 
 calendar months next after the printing thereof, or to produce and show 
 the same to any justice of the x'eace who within the said space of six 
 calendar months shall re([uire to see the same, shall for every such omission, 
 neglect, or refusal forfeit and lose the sum of twenty pounds. 
 
 S. 31. Nothing herein contained shall extend to the impression of any 
 engraving, or to the printing by letter-press of the name, or the name and 
 address, or business or profession, of any person, and the articles in which 
 he deals, or to any papers for the sale of estates or goods by auction or 
 otherwise. 
 
 S. 34. No person shall be prosecuted or sued for any penalty imposed by 
 this Act, unless such prosecution shall be commenced, or sucli action shall 
 be brought, within three calendar months next after such penalty shall have 
 been incurred. 
 
 S. 35. And any pecuniary penalty imposed by this Act, and not ex- 
 ceeding the sum of twenty pounds, shall and may be recovered before 
 any justice or justices of the peace for the county, stewartry, riding, 
 division, city, town, or place, in whijh the same shall be incurred, or the 
 person having incurred the same shall happen to be, in a summary way. 
 
 S. 36. All pecuniary penalties herein-before imposed by this Act shall, 
 when recovered in a summary way befcne any justice, be applied and dis-
 
 A.D. 1 819.] STATUTES. 669 
 
 posed of in manner herein-after mentioned ; that is to say, one moiety 
 thereof to the informer before any justice, and tlie other moiety thereof to 
 his Majesty, his heirs and successors. 
 
 [N.B. — The above sections are continued and re-enacted by 32 & 33 
 A'ict. c. 24, scliedule 2 ; while other sections of the same statute are re- 
 pealed by schedule 1.] 
 
 51 GEO. 111. c. 6J. 
 
 [a.d. 1811.] 
 S. 3. Nothing in the said Act (if the thirty-ninth year of King George 
 the Third, chapter seventy-nine, or in this Act contained, shall extend or 
 be construed to extend to require the name and residence of the printer to 
 be printed upon any bank note, or bank post bill of the Governor and 
 Company of the Bank of England, upon any bill of exchange, or promis- 
 sory note, or upon any bond or other security for payment of money, or 
 upon any bill of lading, policy of insurance, letter of attorney, deed, or 
 agreement, or upon any transfer or assignment of any public stocks, funds, 
 or other securities, or upon any transfer or assignment of the stocks of any 
 public corporation or company authorized or sanctioned by Act of Parlia- 
 ment, or upon any dividend warrant of or for any such public or other 
 stocks, funds, or securities, or upon any receipt for money or goods, or 
 upon any proceeding in any court of law or equity, or in any inferior 
 Court, warrant, order, or other papers printed by the authority of any 
 public board or public officer in the execution of the duties of their respec- 
 tive offices, notwithstanding the whole or any part of the said several secu- 
 rities, instruments, proceedings, matters, and things aforesaid shall have 
 been or shall Ije printed. 
 
 [N.B. — This section is continued and re-enacted by the 32 & 33 Vict. c. 
 24, schedule 2.] 
 
 60 GEO. III. AND 1 GEO. IV. c. 8. 
 
 An Act for the more effectual Prevention and Punishment of hlasphemous and 
 seditious Libels. [30th December, 1819.] 
 
 Whereas it is expedient to make more effectual provision for the punish- 
 ment of blasphemous and seditious libels : Be it enacted by the Kin^j-'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 from and after the passing of this 
 Act, in every case in which any verdict or judgment by default shall be had 
 against any person for composing, printing, or publishing any blasjihemous 
 libel, or any seditious libel tending to bring into hatred or contempt the 
 person of his Majesty, his heirs or successors, or the Eegent, or the govern-
 
 670 APPENDIX C. [a.d. 1824. 
 
 nient 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, it shall be lawful for the judge or the 
 Court before whom or in which such verdict shall have been given, or the 
 Court in which such judgment by default shall be had, to make an order 
 for the seizure and carrying away and detaining in safe custody, in such 
 manner as shall be directed in such order, all copies of the libel which 
 shall be in the possession of the person against whom such verdict or 
 judgment shall have been had, or in the possession of any other person 
 named in the order for his use, evidence upon oath having been previously 
 given to the satisfaction of such Court or judge, that a copy or copies of 
 the said libel is or are in the possession of such other person for the use of 
 the person against whom such verdict or judgment shall have been had as 
 aforesaid ; and in every such case it shall be lawful for any justice of the 
 peace or for any constable or other peace officer acting under any such 
 order, or for any person or persons acting with or in aid of any such justice 
 of the peace, constable, or other peace officer, to search for any copies of 
 such libel in any house, building, or other place whatsoever belonging to 
 the person against whom any such verdict or judgment shall have been 
 had, or to any other person so named, in whose possession any copies of 
 any such libel, belonging to the person against whom any such verdict or 
 judgment shall have been had, shall be ; and in case admission shall be 
 refused or not obtained within a reasonable time after it shall have been 
 first demanded, to enter by force by day into any such house, building, or 
 place whatsoever, and to carry away all copies of the libel there found, and 
 to detain the same in safe custody, iintil the same shall be restored under 
 the provisions of this Act, or disposed of according to any further order 
 made in relation thereto. 
 
 2. And be it further enacted, that if in any such case as aforesaid judg- 
 ment shall be arrested, or if, after judgment shall have been entered, the 
 same shall be reversed upon any writ of error, all copies so seized shall be 
 forthwith returned to the person or i^ersons from whom the same shall have 
 been so taken as aforesaid, free of all charge and expense, and without 
 the payment of any fees whatever ; and in every case in which final judg- 
 ment shall be entered upon the verdict so found against the person or 
 persons charged with having composed, printed, or published such libel, 
 tlien all copies so seized shall be disposed of as the Court in which such 
 judgment shall be given shall order and direct. 
 
 5 GEO. IV. c. 83. 
 
 [2\st June, 1824.] 
 
 S. 4 Every person wilfully exposing to view, in any street, road, 
 
 liighway, or public place, any obscene print, picture, or other indecent 
 exhibition, .... shall be deemed a rogue and vagabond, within the true 
 intent and meaning of this Act ; and it shall be lawful for any justice of the
 
 A.D. 1838.] STATUTES. 671 
 
 peace to commit such ott'endei' (being thereof convicted before him by the 
 confession of such offender, or liy the evidence on oath of one or more 
 credible witness or witnesses,) to the house of correction, there to be kej)t 
 to hard hibour for any time not exceeding three calendar months 
 
 6 & 7 WILL. 4, c. 76. 
 
 [a.d. 1836.] 
 
 S. 19. If any person shall file any bill in any Court for the discovery of 
 the name of any person concerned as printer, publisher, or proprietor of 
 any newspaper, or of any matters relative to the printing or publishing of 
 any newspaper, in order the more effectually to bring or carry on any suit 
 or action for damages alleged to have been sustained by reason of any 
 slanderous or libellous matter contained in any such newspaper resjiecting 
 such person, it shall not be lawful for the defendant to plead or demur to 
 such bill, but such defendant shall be compellable to make the discovery 
 required ; provided always, that such discovery shall not be made use of 
 as evidence or otherwise in any j)roceeding against the defendant, save 
 only in that proceeding for which the discovery is made. 
 
 [N.B. — This section applies to Ireland. It was re-enacted by 32 & 
 33 Vict., c. 24, schedule 2, and tlierefore remains law, although the 
 original statute, 6 & 7 Will. IV., c. 76, was wholly repealed, without 
 any allusion to this section, by the 33 & 34 Vict., c. 99. See mite, 
 pp. 513, 514.] 
 
 1 & 2 VICT. c. 38. 
 
 [a.d. 1838.] 
 S. 2, And whereas by the said recited Act (i.e., tlu 5 Geo. IV. c. 83, s. 4, 
 and NOT as stated in the margin to the Revised Edition of the Statutes, vol. viii, 
 •p. 216, the 5 Geo. III. c. 83, .5. 5,) it is enacted, that every person wilfully 
 exposing to view in any street, road, highway, or public place any 
 obscene print, picture, or other indecent exhibition shall, on summary 
 conviction thereof, be liable to punishment as therein provided : And 
 whereas doubts have arisen whether the exposing to public view in the 
 windows of shops in streets, highways, or other public places, of any 
 obscene print, picture, or other indecent exhibition, is an offence within 
 the meaning of the said recited Act : Be it therefore declared and en- 
 acted, that every person who shall wilfully expose or cause to be exposed 
 to public view in the window or other part of any shop or other 
 building situate in any street, road, highway, or public place, any obscene 
 print, picture, or other indecent exhibition, shall be deemed to have 
 wilfully exposed such obscene print, picture, -or other indecent exhibition 
 to public view within the intent and meaning of the said Act, and 
 shall accordingly be liable to be proceeded against, and on conviction, to 
 be punished under the provisions of the said Act.
 
 672 APPENDIX C. [a.d. 1839. 
 
 2 & 3 YICT. c. 12. 
 
 [a.d. 1839.] 
 S. 2. Every person wlio shall print any paper or bouk whatsoever which 
 shall be meant to be published or dispersed, and who shall not print upon 
 the front of every such paper, if the same shall be printed on one side only, 
 or upon the first or last leaf of every paper or book which shall consist of 
 more than one leaf, in legible characters, his or her name and usual place 
 of abode or business, and every person who shall publish or disperse, or 
 assist in publishing or dispersing, any printed paper or book on which the 
 name and place of abode of the per.son printing the same shall not Ije 
 printed as aforesaid, shall for every copy of such paper so printed by him 
 or her forfeit a sum not more than five pounds : Provided always, that 
 nothing herein contained shall be construed to impose any penalty upon 
 any person for printing any paper excepted out of the operation of the said 
 Act of the thirty-ninth year of King George the Third, chapter seventy- 
 nine, either in the said Act or by any Act made for the amendment 
 thereof. 
 
 S. 3. In the case of books or i)apers printed at the University Tress of 
 Oxford, or the Pitt Press of Cambridge, the printer, instead of printing his 
 name thereon, shall print the following words, "Printed at the University 
 Press, Oxford," or " The Pitt Press, Cambridge," as the case may be. 
 
 S. 4. Provided always, that it shall not be lawful for any person or per- 
 sons whatsoever to commence, prosecute, enter, or file, or cause or procure 
 to be commenced, prosecuted, entered, cr filed, any action, bill, plaint, or 
 information in any of Her Majesty's Courts, or before any justice or justices 
 of the peace, against any person or persons for the recovery of any fine, 
 penalty, or forfeiture made or incurred, or which may hereafter be incurred 
 under the provisions of this Act, unless the same be commenced, prosecuted, 
 entered, or filed in the name of Her Majesty's Attorney-General or Solicitor- 
 General in that part of Great Britain called England, or Her Majesty's 
 Advocate for Scotland (as the case may be respectively) ; and if any action, 
 bill, plaint, or information shall be commenced, prosecuted, or filed in the 
 name or names of any other person or persons than is or are in that behalf 
 before mentioned, the same and every proceeding thereupon had are hereby 
 declared and the same shall be null and void to all intents and purposes. 
 
 [X.B.—The above sections are re-enacted by 32 & 33 Yict. c. 24, schedule 
 2 ; the rest of the Act is repealed by schedule 1.] 
 
 3 & 4 VICT. c. 9. 
 
 An Act to give Summary Protection to Persons employed in the Publication oj 
 Parliamentary Papers. [1-1'^ April, 1840.] 
 
 Whereas it is essential to the due aiul effectual exercise and di; charge 
 of the functions and duties of Parliament, and to the inouiotion of wise
 
 A.D. 1840.] STATUTES. 673 
 
 legislation, that no obstructions or impediments should exist to the publi- 
 cation of such of the reports, papers, votes, or proceedings of either House 
 of Parliament, as such House of Parliament may deem fit or necessary to be 
 published : And whereas obstructions or impediments to such publication 
 have arisen, and hereafter may arise, by means of civil or criminal proceed- 
 ings 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 aiforded 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 per- 
 son or persons who now is, or are, or hereafter shall be, a defendant or 
 defendants in any ci\Tl or criminal proceedings commenced or j)rosecuted 
 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 commenced or 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 
 High 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 proceed- 
 ings as the case may be, in respect whereof 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 
 hereafter to be commenced or prosecuted for or on accoimt or in respect of 
 the publication of any copy of such report, paper, votes, or proceedings, it 
 shall be lawful for the defendant or defendants at any stage of the proceed- 
 ings to lay before the Court or judge such report, paper, votes, or proceed- 
 ings, 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
 
 674 APPENDIX C. [A.D. 1843- 
 
 to be linally lait an end to, determined and superseded liy virtue of this 
 Act. 
 
 3, And be it enacted, tliat it shall be lawful in any civil or criminal pro- 
 ceeding 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 
 sliow 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 defendant 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, 
 directly or indirectly, by implication or otherwise, to affect the i^rivileges of 
 Parliament in any manner whatsoever. 
 
 LORD CAMPBELL'S LIBEL ACT. 
 
 6 & 7 VICT. c. 96. 
 
 An Act to amend the Law respecting Defamatory words and Libel. 
 
 [24</i Awjust, 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 any action for defamation it shall be lawful . 
 for the defendant (after notice in writing of his intention so to do, duly 
 given to the plaintiff at the time of hling 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 an oppor-. 
 tunity of making or offering such apology. 
 
 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 publication without actual malice, and without gross negligence, 
 and that before the commencement of the action, or at the earliest oppor- 
 tunity afterwards, he inserted in such newspaper or other periodical,, 
 publication a full apology for the said libel, or, if the newspaper or 
 periodical pul^lication in wliich the said libel appeared should be ordinarily , 
 published at intervals exceeding one week, liad offered to publish the said 
 apology in any newspaper or periodical piiblication 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 u-ay of amends for the
 
 A.D. 1 843-] STATUTES. 675 
 
 injury sustained by the publication of such libel) and such -payment into Court 
 shall he 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 pleading of the addi- 
 tional facts hereinbefore required to be pileaded by such defendant, as if actions 
 for libel had not been excepted from the personal actions in which it is lawful to 
 piay money into Court binder an Act p)assed in the session of Parliament held in 
 the fourth year of his late Majesty, intituled " An Act for the further amend- 
 ment of the laiv, and the better advancement 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. 
 
 3. And be it enacted, that if any person shall publish or threaten to 
 publish any liliel 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 
 tlie printing or publishing, 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 j)erson to confer 
 or procure fur any person any aj)pointment or office of profit or trust, every 
 such offender, on being convicted 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. 
 
 4. And be it enacted, that if any person shall maliciously publish any 
 defamatory libel, knowing the same to be false, everj^ such person, being 
 convicted thereof, shall be liable to be imprisoned in the common gaol or 
 house of correction for any term not exceeding two years, and to pay such 
 fine as the Court shall award. 
 
 5. And be it enacted, that if any person shall maliciously publish any 
 defamatory libel, every such person, being convicted thereof, shall be liable 
 to fine or imprisonment, or both, as the Court may award, such imprison- 
 ment not to exceed the term of one year. 
 
 «. 6. And be it enacted, that on the trial of any indictment or information 
 for a defamator}^ libel, the defendant having pleaded such plea as herein- 
 after mentioned, the truth of the matters charged may be inquired into, but 
 shall not amount to a defence, iinless 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 chai'ged as a defence to such 
 indictment or information, it shall be necessary for the defendant, in plead- 
 ing to 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 l)e published, to which plea the prosecutor shall be 
 at liberty to reply generally, denying the whole thereof ; and that if after
 
 676 APPENDIX C. [A.D. 1843. 
 
 sucli plea the defemlant sliall be convicted 011 such indictment or informa- 
 tion, 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 in- 
 quired into without such plea of justification : Provided also, that in 
 addition to sucli plea it shall be competent to the defendant to plead a plea 
 of not guilty : Provided also, that nothiiag in this Act contained shall take 
 away or prejudice any defence nnder the plea of not guilty, which it is now 
 competent to the defendant to make luider such plea to any action or in- 
 dictment, or information, for defamatory words or libel. 
 
 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 be competent to such defendant to prove that such 
 pulilication 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. 
 
 8. And be 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 be given for the defendant, he shall be entitled to recover 
 from the prosecutor the costs sustained by the said defendant by reason of 
 such indictment or information ; and that upon a special plea of justifica- 
 tion to such indictment or information, if the issue be found for the 
 prosecutor, he shall be entitled to recover from the defendant the costs 
 sustained by the prosecutor by reason of such plea, such costs so to be 
 recovered by the defendant or prosecutor respectively to be taxed by the 
 proper officer of the Court before which the said indictment or information 
 is tried. 
 
 9. And be it enacted, that wherever tiiroughout this Act, in describing 
 the plaintiff or the defendant, or the party affected or intended to be 
 affected by the ofience, 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, imless when 
 the nature of the provision 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 
 Acts Repeal Act, 1879, 42 & 43 Vict. c. 59, Schedule, part II.]
 
 A.D. 1845.] STATUTES. 677 
 
 8 & 9 VICT. c. 75. 
 
 An Act to amend an Act ixisscd in the Session of Parliament held in the Sixth 
 and Seventh Years of the reign of Her jyrcsent Majesty , intituled "An Act 
 to amend the Law resj)ectin(j Defamafory ivords and Libel." 
 
 [31.s< Julu, 1845.] 
 
 Whereas by an Act passed in tlie session of Parliament held in the sixth 
 and seventh years of the reign of her present ]klajesty, intituled "An Act 
 to amend the hxw respecting defamatory words and libel," it is, amongst 
 other things, enacted and provided, that the defendant in an action for a 
 libel contained in any public newspaper or other periodical publication 
 may plead certain matters therein mentioned, and may upon filing such 
 j)lea be at liberty to pay into Coiu't a sum of money by wny of amends for the 
 injury sustained by the publication of such libel, and it is thereby further 
 enacted, that 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 as to payment of costs and the form of pleading, 
 except 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 passed in the session of Parliament held in the 
 fourth year of his late Majesty, intituled "An Act for the further amend- 
 ment 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 farther advance- 
 ment 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 exception 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 said 
 Act of the third and fourth years of the reign of her present 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 in 
 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-mentioned Act, and shall on filing such plea pay money into 
 Court as provided by such Act, such payment into Court shall be of the
 
 678 APPENDIX C. [a.d. 1846. 
 
 same effect, and be available in the same manner and to the same extent, 
 and be snbject 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 jaleaded by 
 such defendant, as if actions for libel had not been excepted from the personal 
 actions in which it is ]a^vful 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 file any 
 such plea, without at the same time making a payment of money into 
 Court by way of amends as provided hy the said Act, but every such plea so 
 filed -without payment of money into Court shall be deemed a nullity, and 
 may be treated as such by the plaintiff in the action. 
 
 [N.B. — ^Tlie words in italics in s. 2 were repealed by the Civil Procedure 
 Acts Repeal Act, 1879, 42 & 43 Vict. c. 59, Schedule, part II. The 
 Statute 3 & 4 Vict. c. 105, s. 46, referred to in s. 1 is now rejiealed by the 
 Stat. Law Rev. Act, 1875. See the C. L. P. A., 1852 (15 & 16 Vict. c. 76) 
 s. 70, and for Ireland 16 & 17 Vict. c. 113, s. 77 ; ante, pp. 491—4.] 
 
 9 & 10 VICT. c. 33. 
 
 [Jahj 27th, 1846.] 
 
 S. 1. It shall not be lawful for any person or persons to conmieuce, 
 prosecute, enter, or file, or ca;ise or procure to be commenced, prosecuted, 
 entered, or filed, any action, bill, plaint, or information in any of Her 
 Majesty's courts, or before any justice or justices of the peace, against any 
 person or persons for the discovery of any fine which may hereafter be 
 incurred under the provisions of the Act of the thirty-ninth year of King 
 George the Third, chapter seventy-nine, set oiit in this Act, unless the 
 same be commenced, prosecuted, entered, or filed in the name of Her 
 Majesty's Attorney-General or Solicitor-General in England, or Her 
 Majesty's Advocate in Scotland, and every action, bill, plaint, or informa- 
 tion which shall Ije commenced, prosecuted, entered, or filed in the name 
 or names of any other person or persons than is in that behalf before men- 
 tioned, and every proceeding thereupon had, shall be null and void to all 
 intents and purposes. 
 
 [N.B.— This section is re-enacted by the 32 & 33 Vict. c. 24, Schedule 2.] 
 
 11 & 12 VICT. c. 12. 
 
 An Act for the Better Security of the Crown and Government of the United 
 Kingdom. [April 22nd, 1848.] 
 
 S. 3. If any person whatsoever after the passing of this Act shall, within 
 the United Kingdom or without, compass, imagine, invent, devise, or
 
 A.D. 1852.] STATUTES. 679 
 
 inteaid to deprive or depose our most Gracious Lady the Queen, lier heirs 
 or successors, from the style, honour, or royal name of the imperial crown 
 of the United Kingdom, or of any other of Her Majesty's dominions and 
 countries, or to levy war against Her Majesty, her heirs or successors, 
 within any part of the United Kingdom, in order by force or constraint to 
 compel her or them to change her or their measures or counsels, or in 
 order to put any force or constraint upon or in order to intimidate or 
 overawe both Houses or either House of Parliament, or to move or stir any 
 foreigner or stranger with force to invade the United Kingdom or any 
 other Her Majesty's dominions or countries under the obeisance of Her 
 Majesty, her heirs or successors, and such compassings, imaginations, in- 
 ventions, devices, or intentions, or any of them, shall express, utter, or 
 declare, by publishing any printing or writing or by open and advised 
 sjKaJdng, or by any overt act or deed, every person so offending shall be 
 guilty of felony, and being convicted thereof^ shall be liable, at the dis- 
 cretion of the court, to be transported beyond the seas for the term of his or 
 her natural life, or for any term not less than seven years, or to be im- 
 prisoned for any term not exceeding two years, Avitli or without hard 
 labour, as the Court shall direct. 
 
 [N.B. — The words in italics were not in the 36 Geo. III. c. 7.] 
 
 COMMON LAW PROCEDURE ACT. 
 
 15 & 16 VICT. c. 76. 
 
 [June 3(Hh, 1852.] 
 
 S. 61. In actions of libel and slander the plaintiff shall be at liberty to aver 
 that the words or matter complained of Avere used in a defamatory sense, 
 specifying such defamatory sense without any prefatory averment to show 
 how such words or matter were used in that sense ; and such averment shall 
 be put in issue by the denial of the alleged libel or slander ; and where the 
 words or matter set forth, with or without the alleged meaning, show a 
 cause of action, the declamtion shall be suiiicient. 
 
 18 & 19 VICT. c. 41. 
 
 An Act for aholishinfj the Jurisdiction of the Ecclesiastical Courts of Evfjland 
 and Wales in suits for Defamation. 
 
 [26th June, 1855.] 
 
 Whereas the jurisdiction of the ecclesiastical courts in suits for de- 
 famation has ceased to be the means of enforcing the spiritual discipline
 
 68o 
 
 APPENDIX C. 
 
 [a.d, 1857. 
 
 of the church, aud has hccome grievous and oppressive to the subjects of 
 this realm : 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. From and after the passing of this Act it shall not be lawful for any 
 ecclesiastical court in England or Wales to entertain or adjudicate upon 
 any suit for or cause of defamation, any statute, law, canon, custom, or 
 usage, to the contrary notwithstanding. 
 
 20 c^ 21 VICT. c. 83. 
 
 An Act far more effectually preventing the Sale of Obscene Books, Pictures, 
 Prints, and other Articles. 
 
 [25th 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 j)resent Parliament assembled, and by the authority of the same, as 
 follows : — 
 
 1. It shall be lawful for any metropolitan police magistrate or other 
 stipendiary magistrate, or for any two justices of the peace, npon comjjlaint 
 made before him or them npon oath that the complainant has reason to 
 believe, and does believe, that any obscene books, papers, writings, prints, 
 pictures, drawings, or other representations are kept in any house, sho]5, 
 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 hire, or being otherwise published for pur- 
 poses 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 connexion 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 purposes afore- 
 said are of such a character and description that the publication of them 
 would be a misdemeanor, and proper to be prosecuted as such, to give 
 authority by sj)ecial warrant to any constable or police officer into such 
 house, shop, room, or other place, with such assistance as may be necessarj*, 
 to enter in the daytime, and, if necessary, to use force, by breaking open 
 doors or otherwise, and to search for and seize all such books, papers, 
 writings, prints, pictures, drawings, or other rejjresentations as aforesaid 
 found in such house, shop, room, or other place, and to carrj-all the articles 
 so seized before the magistrate or justices issuing the said warrant, or some
 
 A.D. 1857.] STATUTES. 681 
 
 other magistrate or justices exercising the same jurisdiction ; and such, 
 magistrate or justices shall thereupon issue a siimmons calling upon the 
 occupier of the house or other place which may have been, so entered by 
 virtue of the said warrant to a2:)pear within seven days before such police or 
 stipendiary magistrate or any two justices in petty sessions for the district, 
 to show cause why the articles so seized should not be destroyed ; and if 
 such occupier or some other person claiming to be the owner of the said 
 articles shall not appear within the time aforesaid, or shall appear, and such 
 magistrate or justices shall be satisfied that such articles or any of them are 
 of the character stated in the warrant, and that 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 
 be 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 j)urposes aforesaid, he or they 
 shall forthwith direct them to be restored to the occupier of the house or 
 utlier place in 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, undei', or by virtue of any authority hereby given, if tender of 
 sufficient amends shall have been made by or on behalf of the party who 
 shall have committed sucli irregularity, trespass, or other wrongful pro- 
 ceeding, before such action brought ; and in case no tender shall have 
 been made, it shall be la^vful for tlie defendant in any such action, by leave 
 of the Court where such action sliall 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 adjudication shall be had and made in and by 
 such Court as in other actions 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 Ije 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 justices in or concerning the execution of this Act, may a2)peal to the 
 next general or ([Uarter sessions for the county, riding, division, city,
 
 682 APPENDIX C. [a.d. i860. 
 
 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 be ajipealed against, notice in writing of such appeal 
 and of the groiinds thereof, within seven days after such act or determina- 
 tion and before the next general or quarter sessions, and entering within 
 such seven days into a recognizance, with sufficient siirety, 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 ajjpeal, 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 cjuarter 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, iipon hearing and finally deter- 
 mining 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 be 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 apj^ellant 
 on the hearing of any such appeal to go into or give evidence of any other 
 grounds of aj^peal agamst any such order, act, or determination, than those 
 set forth in such notice of appeal. 
 
 5. This Act shall not extend to Scotland. 
 
 23 & 24 VICT. c. 32. 
 
 An Act to aholish the Jurisdiction of the Ecclesiastical Courts in Ireland in 
 cases of Defamation, £c. [July '^rd, I860.] 
 
 [N.B. — The portions of this Act which refer to the jurisdiction of the 
 Ecclesiastical 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. 
 
 [Sejjf. Ith, 1880.] 
 
 S. 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 gviilty of any riotous, violent, or indecent behaviour at any burial 
 under this Act, or wilfully obstructing such burial or any such service as
 
 A.D. 1880.] STATUTES. 683 
 
 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 jiermitted by this Act, and not otherwise permitted by any lawful 
 authority, or who shall, under colour of any religions services or other- 
 wise, in any such churchyard 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 misdemeanor.
 
 GENEEAL INDEX. 
 
 ABATEMENT OF ACTION, 352, 355 
 
 ABSOLUTE PRIVILEGE, 185—196 
 
 (i.) Parliamentary proceedings, ISG 
 (ii.) Judicial proceedings, 188 
 
 words spoken by a judge, 188 
 words spoken by counsel, 190 
 words spoken by a witness, 191 
 (iii.) Naval and military affairs, 194 
 
 ABUSE, 
 
 mere general words of, 18, 109 
 
 ACCESSORIES 
 
 to the publication of a libel, 57G 
 
 ACCIDENTAL PUBLICATION, 
 
 civil liability for, 6, 153, 154, 387 
 criminal liability for, 385, 387 
 
 ACCORD AND SATISFACTION 
 plea of, 489 
 
 ACTION, 
 
 how commenced, 453 
 
 within what time, 455 
 
 and in what Court, 453 
 
 letter before, 453 
 
 notice of, 453 
 
 considerations before, 449 
 
 consolidation of, 466 
 
 previous, 456, 490 
 
 joinder of causes of, 458 
 
 who may maintain, 344, 372, 452 
 
 proceedings in, are privileged, 188 — 193 
 
 on the case for words, 87 — 92 
 
 for acts injurious to reputation, without express words.. 
 
 ACTIONABLE PER SE, 
 
 what language is, 18, 53 — 81 
 
 what language is not, 82—87, 253, 308.
 
 686 GENERAL INDEX. 
 
 ACTS, 
 
 reputation may be affected by, 8, 1-48, 149 
 
 ADMINISTRATION OF JUSTICE, 
 honafide comments on, 44 — 46 
 publications reflecting on, 42C — 448 
 
 ADMINISTRATORS, 
 
 right of action does not pass to, 355 
 
 ADMISSION, 
 
 by defendant, effect of, 534 
 
 ADMONITION, 
 
 communications by way of, 239 
 
 ADULTERY, 
 
 words imputing, not actionable, 59, 84 
 to a physician, 66, 83 
 to a clergyman, 64, 66 
 to a married woman, 85, 86 
 law on this point considered, 86, 87 
 
 " ADVENTURER," 
 
 charge of being, libellous, 22 
 
 ADVERTISEMENT 
 
 in newspaper, when privileged, 225 
 
 of tradesmen, may be criticized, 34, 50, 51 
 
 of cure, may be criticized, 50, 51 
 
 ADVICE, 
 
 when privileged, 215, 239 
 on evidence, 524 
 
 ADVOCATES, 
 
 privilege of, 190 
 
 reports of speeches of, 250 — 253 
 
 publication in vindication of character assailed by, 230 
 
 AFFAIRS OF STATE 
 
 may be criticized, 42 — 44 
 
 AFFIDAVIT, 
 
 defamatory statements in, privileged, 191, 192 
 
 in answer to interrogatories, 511 
 
 further and better answer, 519 
 
 on applications for leave to file criminal informations, 591 
 
 in aggravation of punishment, 589 
 
 in mitigation of punishment, 589
 
 GENERAL INDEX. 687 
 
 AGENT, 
 
 and principal, 358 
 
 publication of libel by master through agency of servants, 302, 385 
 
 principal's orders no defence, 359 
 
 evidence of authority to publish, 3G4, 3G5 
 
 ratification, 361 
 
 innocently publishing a libel, 153, 151, 359, 387^ 
 
 ignorant of the contents of the paper, 3S7, 583 
 
 AGGRAVATING CIRCUMSTANCES, 
 must be justified, 169 
 
 AGGRAVATION OF DAMAGES, 
 wide circulation of libel, 298 
 malice, 296 
 
 by plea of justification, 178, 274, 485, 512 
 by injudicious cross-examination of plaintiff, 542, 547 
 plaintiff's good character, 298 
 
 AGGRAVATION OF PUNISHMENT, 
 affidavits in, 589 
 
 AGREEMENT, 
 
 to accept the publication of mutual apologies, 489 
 to compromise, 550 
 
 ALIENS, 356 
 
 ALLEGORY, 
 
 may be a libel, 8, 98, 130, 384 
 
 AMBASSADORS, 
 
 foreign, libels on, 383 
 
 AMBIGUOUS EXPRESSIONS, 
 
 rule of construction as to, 107 — 115 
 evidence as to meaning of, 539, 548 
 meaning ascribed by innuendo, must be adhered to, 102 
 
 AMENDMENT, 
 
 of pleadings, 498 
 
 at the trial, 537, 545 
 
 of variances between words laid and tliose proved, 471, 536 537, 545 
 
 on argument of demurrer, 478 
 
 of indictment, 577 
 
 of information, 595 
 
 " AMBI-DEXTER," 75 
 
 ANAGRAM, 
 
 may be a libel, 8 
 
 ANONYMOUS LETTER, 
 
 shown confidentially, 207 
 
 opinion as to handwriting of, when privileged, 237
 
 68S GENERAL INDEX. 
 
 ANHWERS, 
 
 to interrogtatories, 511 
 further and better, 515 
 
 APOLOGY, 299, 487 
 
 jury to judge of sufficiency of, 300, 560 
 
 notice of intention to give evidence of, 488, G21 
 
 statutory plea of, for libel in a newspaper, 299, 487 
 
 form of plea of, 488 
 
 any other plea may be pleaded at the same time, 487 
 
 APPEAL, 
 
 proceedings in the Court of, 5G1 
 from County Court, 569 
 
 APPEALS, 
 
 to the public, may be criticized, 50 — 52 
 
 APPEARANCE, 462 
 
 APPENDICES. 
 
 A. Ai^pciulix of Precedents of Plead'tngit. ,')-c., 596 — 661 
 
 Contents, 596 
 I. Precedents of pleadings in actions for libel, 600 
 
 IL Precedents of pleadings in actions of slander, 621 
 IIL Precedents of pleadings in actions of slander of title, 634 
 IV. Forms of pleadings, notices, &c., in the County Court, 644 
 
 V. Precedents of criminal pleadings, 649 l 
 
 B. Eepoi-t of the Select Committee of the House of Commons on the Law 
 
 of Libel, 662 
 
 C. Ajqjendlx of Statutes, 664 — 683 
 
 Contents, 664 
 
 APPORTIONMENT 
 
 of costs of issues, 338 
 
 ARBITRATION, 
 
 costs where cause referred to, 338 
 
 ARCHBISHOP, 
 
 language concerning, 28 
 
 ARCHITECT, 
 
 criticisms on the works of, 49, 68, 172, 601 
 
 ARGUMENT 
 
 of the rule for a criminal information, 593 
 
 ARREST OF JUDGMENT, 
 
 motion for, in civil cases, 96, 118, 554 
 in criminal cases, 586, 587 
 
 ARSON, 
 
 charge of, 114, 125 
 
 ARTIST, 
 
 criticism on the pictures and works of, 48, 49
 
 GENERAL INDEX. 689 
 
 ART-MASTER, 
 libel on, 25 
 
 ASSAULT, 
 
 with intent to rob, charge of, uctionablo, 55 
 
 ASTERISKS, 
 
 put for plaintiff's name, 130, 582 
 
 ATTACHMENT, 
 
 for contempt, 433 
 
 ATTEMPT, 
 
 to commit a felony, charge of, actionable, 55, 57 
 words sufficient to impute, 123 
 
 ATTORNEY, 
 
 slander of, 65, 74, 75 
 
 libels on, 6, 7, 29, 30, 99 
 
 plaintiff, proof of qualification, 530, 531 
 
 acting as advocate, privilege of, 190 
 
 not liable for objecting to title, 142, 226 
 
 bill of costs of, not a judicial proceeding, 193 
 
 AUCTIONEER, 
 
 words concerning, 67, 80 
 
 libellous notice to, by person interested in proceeds of sale, 226 
 
 A UDITA Q UERELA, 
 
 proceedings by, abolished, 554 
 
 AUTERFOIS ACQUIT, 
 plea of, 576 
 
 AUTERFOIS CONVICT, 
 plea of, 576 
 
 AUTHOR, 
 
 liable as publisher, 155 
 criticisms of works of, 48 
 
 AUTHORITY, 
 
 given to another to publish a libel, 360—365 
 
 when implied, 360 
 
 ratification, 361 
 
 in criminal cases, 362, 385 
 
 AVERMENTS, 
 
 when necessary, 118, 120 
 
 in civil cases, need not be proveil, 473 
 
 except of plaintiff's office or trade, 530 
 
 in indictments and criminal informations, introduci'iy averments still 
 
 necessary, 575 
 of special intent, 376, 575
 
 690 GENERAL INDEX. 
 
 B. 
 BACON, LORD, 
 
 his " Use of the Lavr," cited, 19 
 
 BAIL, 
 
 for fippearance to take trial, »73 
 
 BANKER, 
 
 refusing to honour a cheque, S 
 
 circulation of rumour that bank had stopped payment, 20G, 282, 3G9 
 
 refusing to accept cheque of a particular bank, 2G, 236 
 
 BANKRUPT, 
 
 can sue for libel or slander, 351 
 
 charges against, by trustee, privileged, 235, 23 1 
 
 BANKRUPTCY, 
 
 words imputing, 7, 31 
 
 proceedings before registrar, reports of, privileged, 2iS 
 
 charge of having committed act of, 22G, 235 
 
 BARRISTER, 
 
 slander of, 74 
 libels on, 29 
 
 slander by, in legal proceedings absolutely privileged, 190 
 libel by, in law-book, G 
 
 criminal information against Countj' Court Judge for refusing to hear, 
 382 
 
 BASTARD, 
 
 imputation that heir-apparent is, 139, 140 
 charge of having had, not actionable, 85 
 
 except formerly under IS Elizabeth, c. 3, 58 
 
 BAWD, 
 
 charge of being a, not actionable, except in London and Sonthwark, 
 84, 85 
 
 BAWDY HOUSE, 
 
 charge of keeping, is actionable, 5G, 131 
 
 BEGIN, 
 
 right to, always with plaintiff, 530 
 
 BELIEF 
 
 in truth of charge, necessary to privilege, 199 
 
 in truth, in mitigation, 589 
 
 hearsay is probable groiind for, 214, 278 
 
 BIGAMY, 
 
 what words amount to a charge of, 123 
 charge of. is actionable, 55 
 
 BILL OF EXCEPTIONS, 551
 
 GENERAL INDEX. 691 
 
 » BLACK-LEG," 
 
 meaning of, 24, Gl 
 
 charge of being, not actionable, 83 
 
 " BLACK-LIST," 
 
 libel on a trader in, 240 
 
 "BLACK-SIIEEP," 
 
 meaning of, 24, Gl 
 
 BLASPHEMOUS WORDS, 394—403 
 defined, 3'J4 
 
 intent to bring religion into contempt, 39.") 
 honest advocacy of heretical opinions, 39G 
 justification not allowed, 388 
 statutory provisions, 400 
 jurisdiction of Ecclesiastical Courts, 402 
 reports of proceedings in Courts of Justice as to, are not privileged, 219, 
 
 399 
 punishment, 394 
 
 limitation of prosecutions for, 401 
 Common Law not atfected by statutes, 401 
 Scotch Law as to, 394 
 
 BOARD OF GUARDIANS, 
 
 reports of meetings of, not privileged, 2G0 
 
 BONA FIDE COMMENT, 
 no libel, 34—52 
 plea of, 483, G05, 618, C19 
 
 BONA FIDES 
 
 of defendant, 199 
 
 BOOK, 
 
 reviews and criticisms of, 48, 49 
 
 in Latin, 161, 386 
 
 libellous, sale of by bookseller's servant, IGO, 3C2 
 
 obscene, statute for preventing sale of, 405 
 
 BOOKSELLER, 
 libel on, 34 
 liability of for sale of libellous book, 160, 362, 386 
 
 BREACH OF PEACE, 
 libels tend to, 3, 373 
 
 BRIBERY, 
 
 words imputing, actionable, 56 
 
 in offices of public trust, 64, 71 
 
 imputations of in report by political committee, 43 
 
 contempt of Court by ofEcring a bribe to a judge, 429 
 
 BROTHEL, 
 
 imputation of keeping, 8, 5C, 131 
 
 T T 2
 
 692 GENERAL INDEX. 
 
 " BUNGLER," 
 
 spoken of an artilicei-, is actionable, Go 
 
 "BUNTER," 111 
 
 BURGLARY, 
 
 charge of, actionable, 55 
 
 BURNING 
 
 in effigy, 9 
 
 BUSINESS, 
 
 slander of persons in, G5, 77 — 81 
 libels of persons in ^yay of, 31 
 
 BUTCHER. 
 
 words concerning, 80, 23G 
 
 BYSTANDER 
 
 at inquest, remarks of. not privileged, 191, 251 
 
 C. 
 CALLING, 
 
 words injuring plaintiff in tlie way of his, when written, 22, 2" — 34 
 when spoken, 65, 77 — 81 
 
 CANDIDATE, 
 
 for office, words concerning, 23G, 211 
 
 CANT, or SLANG TERMS, 110, 538 
 
 CAPTAIN OF SHIP, 
 
 words concerning, 217 
 
 CARICATURE, 
 
 libel by means of, 8, 22 ■ 
 
 CARPENTER, 
 
 words concerning, G7 
 
 CAUSES OF ACTION, 
 joinder of, 458 
 
 CAUTION 
 
 to tradesmen, when privileged, 215, 218 
 
 CENSORSHIP OF THE PRESS, 9—12 
 CENSORSHIP OF PLAYS, 13 
 
 CENSURE, 
 
 words of, by a judge, 187, 189 
 
 CENTRAL CRIMINAL COURT, 579 
 
 CERTAINTY, 
 
 how ensured formerly, 118 
 early technicalities, 118 
 of the imputation, 120 
 criminal charges, 121 
 indirect imputations, 125 
 as to person defamed, 127
 
 GENERAL INDEX. 693 
 
 CERTIOBABI 
 
 for removal of imlictmcut for libel, 578 
 costs when indictment removed by, 590 
 
 CHALK-MAEK 
 
 may be a libel, 8 
 
 CHALLENGE TO FIGHT. 
 
 sending, a misdemeanour, 377 
 
 CHANCERY, COURT OF, 
 
 contempts of, 429, 448 « 
 
 CHANGE OF VENUE, 528 
 
 CHARACTER, 
 
 proof of plaintiff's special, 530 
 
 of servant, ^;?'(ffia./«ciV, privileged, 200 
 
 honafidc communications as to, 203 — 219 
 
 master not bound to give, 201 
 
 evidence of good, not receivable unless impeached, 275, 2'J8 
 
 evidence of plaintiff's bad, 304 
 
 evidence for defendant as to, on trial of iudiclment ur inroiniatioii, 584, 
 
 589 
 of witnesses, evidence to impeach, 54G 
 
 CHARGE 
 
 of crime must be precise, 121 — 127 
 
 of attempt to commit a crime, 55, 123 
 
 of an impossible crime, 01 
 
 of being a felon, 58, 171, C03 
 
 of being a returned convict, 179 
 
 to a constable in his character as such. 20l, 2(i7 
 
 CHARITABLE INSTITUTION, 
 
 criticisms on officers of, 47, 238, 239 
 trustees of, words concerning, 28, 370, 377 
 private, not to be criticized, 47 
 
 CHASTITY, 
 
 charge of want of, not ;;ctioualilc, 84. 85 
 
 actionable if in writing. 24 
 
 " CHEAT," 
 
 charge of being a, not actionable, ill, 80 
 
 CHEATING, 
 
 charge of, libellous, 24, 25 
 
 in way of trade, actionable, 80 
 
 CHEQUE, 
 
 action for dishonouring, 8 
 
 CHILD, 
 
 lialiilily of, 352 
 
 parent not answerable for wrongs by, 3C1 y 
 
 CHOICE OF COURT, 453
 
 694 GENERAL INDEX 
 
 CHiaSTIANITY, 
 
 publications against, I}y4 — 402 
 part of the common law, 397 
 
 CHURCHWAEDEN, 
 slander of, G2 
 
 CIRCULARS 
 
 of tradesmen, may be criticized, 50, 51 
 
 CIRCULATION OF LIBEL, 
 
 extent and mode of, 282, 293 
 
 CIVIL REMEDY FOR DEFAMATION, 9, 390 
 
 CLAIM, 
 
 statement of, 409 — 474 
 
 by husband fur words defamatory of wife, 347 
 
 by wife alone, 4G5 
 
 joint and several, 365, 309, 405 
 
 CLASS 
 
 religious order or community, libels on, 370, 377, 381 
 
 CLERGYMEN, 
 
 words affecting them in office, 28, 47, 04, 217, 219, 628 
 
 charges of incontincncy and immorality against, ^'o, T2, 73 
 
 deprivation of office the ground of action, 72 
 
 plaintiff must hold benefice or office at the time of the slander, 72 
 
 slander by, in sermon, &;c., 6, 242 
 
 libels by, on schoolmaster in parish, 268 
 
 general reflections on the clergy of a particular diocese, 382 
 
 CLERK, 
 
 words concerning, 77, 285, 629 
 to vestry, words concerning, 29 
 to justices, words concerning, 29 
 
 words by, not ijrivilegcd, 190 
 CLUBS, 
 
 " blackballed," 23 
 notice posted in, 25 
 
 COININCI. 
 
 charge of, 58. 622 
 
 COLLOQUIUM 
 
 or application of the slander, 118 
 provisions of C. L. P. Act as to, 120 
 
 COLONIAL COURTS, 
 
 power of, to commit for contempts, 438 
 
 COLONIAL LEGISLATIVE ASSEMBLIES, 
 
 power of, to commit for contempt, 425 
 
 COMMANDS 
 
 of master no defence to servant, 359
 
 GENERAL INDEX. 695 
 
 COMMENTS 
 
 on matters of public interest, 34 — 52 
 
 every citizen has a right to make, 35, 3fi 
 
 not privileged in the strict sense of that term, 3."J, 36 
 
 on matters of local interest, 41, 42 
 
 bad motives must not be recklessly imputed, 37, 30 
 
 honest belief in truth of, not alone sufhcieut, 38 
 
 limits on, 3G — 41 
 
 affairs of State, 42—44 
 
 trials in law courts, 44 — 40 
 
 local institutions and authorities, 4(j, 47 
 
 parochial charity, 47 
 
 ecclesiastical affairs, 47, 48 
 
 books and pictures, 48, 49 
 
 architecture, 48, 40, G8, 172 
 
 theatres and concerts, 49 
 
 l)ublic entertainments, 40, 50 
 
 appeals to the public notice, 50—52 
 
 advertisements and circulars, 50, 51 
 
 controversy in newspapers, 50 — 52, 228, 220 
 
 plea of, 483, 605, 618, 619 
 
 COMMISSION 
 
 to examine M'itnesses, 527 
 
 COMMITTEE 
 
 of charity, communications to, 238, 230 
 
 COMMODITIES 
 
 of tradesmen, verbal imputations upon, 70, 145 
 libel on, 32, 145—148 
 
 •' COMMON FILCHER," 
 not actionaljle, 61 
 
 COMMONS, HOUSE OF, 
 libels on, 422 
 contempts of, 423 
 
 COMPANIES 
 
 and corporations, 3G7 — 369 
 
 may sue for slander of title, 368 
 
 may sue a shareholder for libel, 32 
 
 proceedings of, at meeting of shareholders, privileged, 235. 242 
 
 COMPARISON 
 
 of handwriting, 533, 580 
 
 COMPETITION 
 
 between rival traders, 31, 145 
 
 COMPROMISE 
 
 in civil case, 550 
 
 not allowed in criminal cases 506
 
 696 GENERAL INDEX. 
 
 CONCEKTS 
 
 may be criticized, i'J 
 
 CONDITION 
 
 in life of plaintiff, 293 
 
 CONDUCT, 
 
 unfeeling, charge of, libellous, 24: 
 
 CONFESSION 
 
 of publication, .j3i 
 
 CONFIDENTIAL COMMUNICATIONS, 
 when privileged, 203 — 219 
 
 CONFIDENTIAL RELATION, 
 defined, 210 
 
 CONSIDEKATIONS 
 before writ, 4i9 
 for defendant, 4(J5 
 
 CONSOLIDATION " 
 
 of actions, 4G0 
 
 CONSOBTIUM, 
 
 loss of, 312 
 
 CONSPIEACy, 
 
 charge of, actionable, 50 
 
 CONSTABLES, 
 
 words concerning, 237, 285 
 
 words spoken on giving in charge of, are privileged, 204, 267 
 
 CONSTITUTION, 
 
 libels against the, 419 — 421 
 
 CONSTEUCTION, 93—132 
 
 what meaning the speaker intended to convey is immaterial, 93, 548 
 
 libel or no libel is a question for the jury, 27, 94, 550, 557 
 
 duty of the Judge, 94, 540, 544 
 
 words not to be construed in mitiori scnsu, 95 
 
 jury to consider the words as a whole, 98, 551 
 
 when evidence may be given of other defamatory publications by 
 
 defendant of plaintifE, 99, 272, 545 
 of the innuendo, 100, 538 
 
 the words must be set out vevhatim in the statement of claim, lul, 470 
 words clearly defamatory, 105 
 yvords jJrimci facie defamatory, 107 
 neutral words, 109 
 words j'f'ijno, facie innocent, 112 
 ironical words, 114, 116, 539 
 words clearly innocent, 116 
 after verdict, 558, 580
 
 GENERAL INDEX. 697 
 
 CONTAGIOUS DISEASE, 
 
 charge of having, 62, 63, 624 
 
 CONTEMPTIBLE, 
 
 words rendering plaintiff, libellous, 21, 22 
 
 CONTEMPTS 
 
 of the King, 413, 414 
 
 of the Government, 415 — 411) 
 
 of Parliament, may be dealt with in the law court.'<, 422 
 
 how punished by the House of Lords, 423 
 
 how, by the House of Commons, 423 
 
 the propriety of committal by, cannot be qucsUuncd in coui'ts of 
 law, 424 
 of Colonial Legislative Assemblies, 424 
 
 their power to exclude, 425 
 of courts of law and judges, 426 
 of Superior Courts, 420 
 
 proceedings against offenders for contempts, 428 
 
 Judge at Chambers, 437, 438 
 
 attachment and committal, 433 
 
 publications prejudicial to fair trial of action, 429 
 
 injunctions to restrain, 13, 436 
 
 Scotch law as to, 436 
 of Inferior Com-ts of record, 440 
 
 no power to commit except for those committed in face of Court, 442 
 
 statutory powers, 445 — 447 
 
 county courts, 442, 445 
 of Inferior Courts not of record, 444 
 
 sureties for good behaviour, 444 
 of ecclesiastical courts, 448 
 
 CONTKACTS 
 
 as to libels cannot be enforced, 374 
 
 CONTEIBUTION, 
 
 none between wrong-doers, 157, 374 
 
 CONTROVERSY 
 
 in the newspapers, 50 — 52, 228, 229 
 
 " CONVICTED FELON," 
 
 actionable, 58, 171, 603 
 
 CONVICTION, 
 
 summary before ju.sticcs, reports of, 243 — 248 
 
 proof of, 546 
 
 placards notifying, at railway stations, 173, 170 
 
 COPYING LIBELS, 
 
 from one newspaper into another, 100, 302, 549, 584 
 
 COPYRIGHT, 
 
 none in innnor.il or libellous work, 374
 
 6g8 GENERAL INDEX. 
 
 COEOXEE, 
 
 defamatory statemeut by, on inquest, 189 
 has power to eject disturber, 442 
 
 COHPOEATIONS 
 
 may sue for libel, 32, 367 
 
 may sue for slauder of title, 368 
 
 may be sued for libel, 368 
 
 not for slander, 368 
 
 may be sued for acts of agents, 3G8 
 
 criminally liable, 869 
 
 discovery against, by interrogatories, 501 
 
 COEEUPTION 
 
 in office, charge of, 27, 28, 61, 427 
 
 COSTS, 334—343 
 
 now follow the event, 334 
 
 all early statutes as to costs repealed by Judicature Act, 335 
 
 application to deprive successful plaintiff of costs, 336 
 
 of new trial, 338 
 
 apportionment of costs of issues, 338 
 
 after payment into court, 340 
 
 of counterclaim, 341 
 
 security for, 46(!, 553, 590 
 
 practice as to asking for, 337, 553 
 
 married woman liable for, 553 
 
 special costs, 337, 553 
 
 in actions remitted to County Court. 313, 468, 569 
 
 in local Court of Record, 569 
 
 on writ of inquiry, 337, 464 
 
 jury not to consider question of costs, 295 
 
 of indictment, 590 
 
 of criminal information, 595 
 
 COUNSEL, 
 
 privilege of, 190 
 
 reports of speeches of, made in courts of justice, 250 — 253 
 
 COUNTS 
 
 in an indictment, 576, 587 
 
 COUNTERCLAIM, 307, 494 
 costs of, 341 
 
 COUNTY, 
 
 proof of publication within, 581 
 
 COUNTY COURT, 
 
 no jurisdiction of actions for slander or libel, except by consent, 453 
 
 remitting action to, 468 
 
 subsequent proceedings, 565 
 
 discoveries and interrogatories in, 568 
 
 jury, 568 
 
 taxation of costs m, 343, 468, 569
 
 GENERAL INDEX. 699 
 
 COUNTY COURT— 6-ort^</i«ctZ. 
 contempts of, 442, 445 
 criminal information against judge of, 382 
 forms of precedents, notices, &.C., (344 — 648 
 
 COURT, 
 
 selection of, 453 
 
 payment into, 491 
 
 Divisional, proceedings in, 554 — 5lJl 
 
 of Appeal, proceedings in, 561 — 565 
 
 proceedings in County Court, 565 
 
 COURTS MARTIAL, 
 
 defamatory statements made in course of proceeiiugs by, 189, 194 
 
 COURTS OF JUSTICE, 
 
 publication of proceedings of, 187 
 
 contempts of Superior Courts of Record, 428 
 
 Colonial Courts, 438 
 
 Inferior Courts of Record, 440 
 
 proceedings in County Court, 565 
 
 other inferior, 569 
 
 COURTS OF PETTY SESSION, 
 
 defamatory statements made in the regular course of proceeiiugs at, 
 
 privileged, 188 
 reports of proceedings, privileged, 243 — 248 
 
 " COZENER," 
 
 charge of being, not actionable, 61 
 
 CREDIT 
 
 of traders, libels affecting, 30 — 32 
 
 words affecting, 7, 78, 79 
 
 CRIME, 
 
 libel is, slander is not a, 4, 373 
 
 ■words conveying direct charge of, actionable, 54 
 
 statement that plaintiff had been accused of crime, 24, 57 
 
 words not necessarily imputing, actionable if written, 21, 22 
 
 imputation must be specific, 121 — 127 
 
 words of suspicion only, 57 
 
 imputing the murder of a person yet alive, 61 
 
 attempting to commit, 55, 57, 123 
 
 solicitation or hiring to commit, 56 
 
 justification as to charge of committing, 178, 548 
 
 proof of conviction, 546, 548 
 
 CRIMINAL INFORMATION, 
 for libel, 380—383 
 
 discretion of the court as to granting, 380 
 proceedings in, 591 — 596 
 forms of, 649, 651
 
 700 GENERAL INDEX. 
 
 CRIMINAL LAW, 373—393 
 
 law common to all criminal cases, 383 
 
 publication of a libel by one unconscious of its contents, 381 
 I, Criminal remedy by indictment, 9, 375 
 special intent, when necessary, 376 
 punishment at common law, 378 
 statutes, 379 
 II, Criminal remedy by informatiou, 380 
 
 libels on foreign ambassadors, &c., 383 
 considerations as to criminal proceedings for libel, 390 
 suggestion of the Select Committee of the House of Commons, 391 
 
 CRIMINAL LIABILITY 
 
 of a married woman, 351 
 
 of an infant, 353 
 
 of master or principal, 302, 385 
 
 of a corporation, 369 
 
 CRIMINAL PLEADINGS, 
 
 precedents of, 649 — 661 
 
 " CRITIC," 
 
 defined, 36 
 
 CRITICISM, 
 
 right of, 34—52 
 
 distinguished from defamation, 36, 37 
 
 of jjublic men and institutions, 42 — 47 
 
 must be fair and bond fide, 38, 39 
 
 on public entertainments, &c., 49 — 52 
 
 of books, pictures, and architecture, 48, 49 
 
 ridicule of author permitted, 48 
 
 CROWN CASES RESERVED, 
 
 Court for consideration of, 585, 587 
 
 CRUELTY, 
 
 charge of, libellous, 24, 607 
 
 "CUCKOLD," 
 
 charge of being, is not actionable, 84 
 
 CUSTOM, 
 
 loss of, as special damage, 310 
 
 evidence as to loss of, 314, 315, 319 
 
 of London, as to charge of whoredom, 59, 84 
 
 CUSTOMERS, 
 
 complaints by, privileged, 226 
 
 D. 
 
 DAMAGES, 289—333 
 
 general and special damage defined and distinguished, 289 
 1. General Damages, 291 
 
 general loss of custom. 293
 
 GENERAL INDEX. 701 
 
 DAMAGES— wwi-i/twe^Z. 
 
 II. EcUlence for the Plnlnt'rO' in Aggravation of Dai)iagrs. 
 (i) malice, 29G 
 
 (ii) extent of publication, 298 
 (iii) plaintiff's good character, 298 
 
 III. Efidcncc for the Defendant in 3/itigatio>i of Damages. 
 
 (i) apology and amends, 299 
 (ii) absence of malice, 301 
 
 conflicting cases on this point, 303 . 
 (iii) evidence of the plaintiff 's bad character, 30-1 
 (iv) plaintiff's pre^doas conduct in provoking the publication, 
 
 306 
 (v) absence of special damage, 308 
 
 IV. Special Damage Khere the words are not actionahlc per se, 18, 308 
 
 what constitutes special damage, 309 
 special damage must be specially pleaded, 313 
 special damage subsequently arising, 317 
 V. Special Damage where the words are actionable per se, 318 
 
 VI. Remoteness of Damages, 321 
 
 damage resulting to the husband of the female plaintiff, 323 
 
 damage caused by the act of a third party, 325 
 
 not essential that such third person should believe the charge, 
 
 327 
 wrongful and spontaneous act of a third person, 328 
 originator of a slander not liable for damage caused by its 
 
 repetition, 329 
 exceptions to this rule, 331 
 
 other actions, not to be considered, 549 
 
 vindictive, 292 
 
 evidence of, 542 
 
 excessive, new trial on ground of, 291, 558 
 
 inadequacy of, new trial on ground of, 559 
 
 DANCING-MISTRESS, 
 
 slander of, G7 
 
 DEAD, 
 
 libels on the, 375 
 
 intent must be proved, 370 
 
 DEATH, 
 
 charge of being the cause of, 76, 122, 627 
 "guilty of the death of D." is actionable, 121 
 of party to action, effect of, 355 
 
 DEBATES IN Pi\RLIAMENT, 
 
 reports of, 257 
 
 DEBT, 
 
 unfounded claim of, lonafide dispute a« Id. 8, 9 
 
 DECREES OF STAR CHAMBER, 
 
 regulating the Press, 10, 11, 13, 11
 
 702 GENERAL INDEX. 
 
 DEERSTEALING, 
 
 charge of, actionable, 59 
 
 DEFAMATION, 
 defined, 17 
 juripdiction of Ecclesiastical Courts abolished, 17, 59, 8G 
 
 DEFAMATORY WORDS, 
 defined, 1, 17 
 classified, 17—92 
 
 DEFAULT, 
 
 judgment Viy, 4 (13 
 
 judgment in, of pleading, 495 
 
 in pleading. 500 
 
 in making discovery, 522 
 
 " DEFAULTER," 
 
 charge of being, libellous, 21, 29 
 
 DEFENCE 
 
 that words are not defamatory, 483 
 
 justification, 1G9— 181, 485 
 
 privilege, 484 
 
 absolute privilege, 18G— 190 
 
 qualified privilege. 19G — 263 
 
 infancy, no defence, 353 
 
 insanity, no defence, 354 
 
 master's commands no defence, 359 
 
 statement of, 475, 480—495 
 
 accord and satisfaction, 489 
 
 Statute of Limitations, 455, 490 
 
 previous proceedings, 457, 490 
 
 ajiology, 487 
 
 payment into court, 491 
 
 other defences, 490 
 
 all may be pleaded together, 480 
 
 justification in criminal cases, 178, 388, C50, CCO 
 
 innocent piiblication, 153, .^59, 387, C17 
 
 publication to plaintiff only. 383 
 
 evidence for the. 582 
 
 DEFENDANT, 
 
 married woman, 350 
 matters to be considered by the. 4C5 
 may be called by plaintiff, 534 
 evidence for, 545 
 
 DEFENDANTS, 
 
 who are liable as, 344—872 
 
 joint, 371 
 
 no contribution between or indemnity to. 157, 374
 
 GENERAL INDEX. 703 
 
 DEFINITION 
 
 of libel, 7, 21 
 
 of slander, 7, 53 
 
 of defamatory word>;, 1, 17, 30 
 
 of reputation, 150 
 
 of confidential relationship, 210 
 
 of malice, 265, 207 
 
 of publication, 150 
 
 DEMANDING MONEY WITH MENACES, 
 charge of, actionable, 55 
 
 BE MINIMIS NON CURAT LEX, 18, 20 
 
 DEMURRER 
 
 to statement of claim, 475 
 
 where words are not susceptible of any defamatory meaniiij^, 2G 
 
 informal, 496 
 
 to statement of defence, 497 
 
 when to demur, 475 
 
 points on, 578, 637 
 
 to an indictment, 577, 059 
 
 to a plea of justification, 577, 001 
 
 joinder in, 637, 659, 661 
 
 precedents, 606, 636, 659 
 
 '^ DIFFICULTIES," 
 
 charge of being in, libellous, 23. 31 
 
 DISCOVERY 
 
 of documents, 515 
 
 what documents are privileged from, 517 — 519 
 
 state papers, 519 
 
 by interrogatories, 500 — 515 
 
 further and better affidavit, 519 • 
 
 inspection of documents, 520 
 
 default in making, 522 
 
 DISEASE, INFECTIOUS OR CONTAGIOUS, 
 charge of hilving, 62, 63, 624 
 
 DISHONESTY, 
 
 charge of, is actionable, if written, 21 — 22, 32 
 imputation of in giving character of servant, 203, 268, 275 
 
 DISINHERISON, 
 
 words tending to, 139 
 
 DISSENTING MINISTER, 
 words concerning, 28 
 
 DISTRICT REGISTRY, 454 
 
 DIVORCE, 
 
 assertions that huKl)and is seeking, a libel on wife, 24
 
 704 GENERAL INDEX. 
 
 DOCUMENTS, 
 
 discovery of, 515 — 522 
 inspection of, 520 
 
 DOUBTFUL MEANING, 
 
 words of, 107—115, 539, 548, 58G 
 
 DRUNKARD, 
 
 charge of being a, actionable, GG 
 
 DUEL, 
 
 challenge to fight a, 377 
 
 " DUNCE," 
 
 actionable, if spoken of a lawyer, 68 
 
 DUTY, 
 
 as ground of privilege, 198 — 233 
 may be moral or social, 198 
 
 E. 
 
 ECCLESIASTICAL AFFAIRS 
 may be criticized, 47, 48 
 
 ECCLESIASTICAL COURTS, 
 
 jurisdiction of, in cases of defamation, 59, 85, 403 
 abolished, 17, 59, 86 
 law of, how far part of English Common Law, 402, 403 
 contempts of, 448 
 
 EDITOR OF NEWSPAPER, 
 words concerning, 30 
 
 may comment on matters of public interest, 34 — 52 
 joint liability for publication of libel, 157, 261 
 liability to proprietor, 157, 374 
 
 EFFIGY, 
 
 libel by means of, 7, 8, 22 
 
 burning in, 9 
 
 assertion that plaintiff had been hung in, 25 
 
 EMBEZZLEMENT, 
 
 words imputing, actionable, 55, 62. 124 
 
 EMPLOYER, 
 
 liability of, 360, 362, 385 
 
 EMPLOYMENT, 
 
 loss of, is special damage, 310 
 
 ENDORSEMENT ON WRIT. 459 
 
 ENGAGEMENT, 
 
 notice of termination of, not libellous, 25 
 
 ENGINEER, 
 
 libel on, 33
 
 I 
 
 I 
 
 GENERAL INDEX. 705 
 
 ENTRY FOR TRIAL, 522 
 
 EQUITY, COURTS OF, 
 
 no jurisdiction over libels except as contempts, 13, 454 
 
 ERROR, 
 
 writ of, abolished, in civil cases, 551 
 in criminal cases, 587 
 
 ESTOPPEL, 
 
 plea by way of, 490 
 
 ETIQUETTE, 
 
 charge of a breach of, not actionable, 29 
 
 EVENT, 
 
 costs to follow, 334 
 
 EVIDENCE 
 
 1. In civil cases, 449 — 570 
 advice on, 524 
 
 of appointment to office, &c., 530 
 of publication, 531 
 as to innuendo, 538 
 as to the libel, 535 
 secondary, 536 
 
 as to speaking the slander, 537 
 of plaintiflE's good reputation, 298 
 that the words refer to plaintiff, 540 
 
 that the words were spoken of him in the way of his trade, 541 
 of malice, 272—5, 485, 541 
 of other libels or slanders, 272, 296, 545 
 of damage, 542 
 
 of plaintiff's distress of mind, 312, 318 
 of loss of trade, 310—317 
 as to handwriting, 533, 580 
 of admissions by defendant, 534 
 of personal ill-will, 271 
 for defendant, 545 
 of privilege, 547 
 of a justification, 169, 548 
 of an apology, 299 
 in aggravation of damages, 296 — 8 
 in mitigation of damages, 301 — 8 
 2. In criminal cases, 
 
 for the prosecution, 580 
 for the defence, 582 
 
 EXAGGERATION 
 
 may be evidence of malice, 281 
 
 EXAMINATION OF WITNESSES BEFORE TRIAL, 526 
 
 EXCEPTIONS, BILL OF, 551 
 
 EXCESS 
 
 in mode and extent of publication, 282
 
 7o6 GENERAL INDEX. 
 
 EXCOMMUNICATED, 
 
 charge of having been, is actionable, 59 
 
 EXECUTION, 
 
 no stay of, on aj^peal, 56 i 
 
 rule nisi for new trial is a stay of, 557 
 
 EXECUTORS AND ADMINISTEATOES, 355 
 
 EXEMPLARY DAMAGES, 
 when allowed, 292 
 
 EX PARTE PROCEEDINGS, 
 
 reports of, 244 
 
 EXPERTS, 
 
 evidence of, 533 
 
 F. 
 FAIR REPORT, 
 
 what is meant by, 250 — 25G 
 
 question for jurj', 252 
 " FALLING SICKNESS," 
 
 charge of having, 62, 60, 74 
 
 FALSE BOOKS, 
 
 charge of keeping, 80 
 
 FALSEHOOD, 
 
 need not be shown, 169 
 
 of the communication, may be evidence of express malice, 274 
 
 FALSE IMPRISONMENT, 9 
 
 FALSE NEWS, 
 
 devisers of, 378 
 
 FALSE PRETENCES, 
 
 charge of obtaining a horse by, 123 
 
 FALSE WEIGHTS, 
 
 charge of using, 80 
 
 FEELINGS, 
 
 injury to, 309. 312, HIS 
 
 « FELON," 
 
 charge of being a, is actionable, 24, 58, 171, 603 
 
 FELONY, 
 
 what amounts to a charge of, 120 — 127 
 imputation of, actionable, 55 
 
 FICTITIOUS NAMES, 
 
 use of, to conceal defamation, 129 
 
 FIGURATIVE EXPRESSIONS, 
 libel by. 106. 539 
 
 FISHERY ACTS, 
 
 charge of offence again«t. not actionable. 57
 
 GENERAL INDEX. 707 
 
 FLOWER-SHOW 
 
 may be criticized, 50 
 
 FOREIGN AMBASSADORS, 
 
 libellous reflections on, 383 
 
 FOREIGN LANGUAGE, 
 
 slander or libel in, 109, 110, 470, 626 
 
 FOREIGNER 
 
 plaintiff, security for costs by, 356 
 
 FORGERY, 
 
 charge of, actionable, 55 
 
 what words a suflicient charge of, 60, 122 
 
 FORMER PROCEEDINGS, 456 
 
 FORMER RECOVERY, 
 defence of, 490 
 
 FORMS, 
 
 of pleadings, notices, &c., in. the Country Court, 644—648 
 
 FORNICATION, 
 
 charge of, not actionable, 85 
 
 FORSWORN, 
 
 charge of being, 60, 123 
 
 FOX'S LIBEL ACT (32 Geo. IIL c. 60), 12, 94, 585, 667 
 
 FOXES, 
 
 charge of poisoning, libellous, 25 
 
 charge of shooting, against a gamekeeper, actionable, 77 
 
 FRAUD, 
 
 charge of, must be proved to the letter, 225 
 charge of, actionable, if written. 21 
 if spoken in way of trade, 32 
 not otherwise, 61 
 
 FREEDOM 
 
 of the press, 10, 416, 420, 436 
 
 FROZEN SNAKE, 
 
 charge of being, libellous, 22 
 
 judicial notice of meaning of, 106, 539 
 
 "FUDGE," 
 
 affixed to a newspaper article, 100 
 
 FURTHER AND BETTER ANSWERS TO INTERROGATORIES, 515 
 affidavit, 519 
 
 G. 
 
 GALLOWS 
 
 may be a libel in effigy, 8 
 
 « GAMBLER," 
 
 not actionable, 61 
 
 z z 2
 
 7o8 GENERAL INDEX. 
 
 GENERAL DAMAGES, 
 
 defined and distinguished from special damage. 289 
 amount entirely in discretion of jury, 291, 552 
 on each count separately, 295 
 
 GENERAL ISSUE, 
 
 abolished in civil cases, 480 
 
 on trial of indictment or information, 577 
 
 GENERAL LOSS OF CUSTOM, 293 
 
 GIST 
 
 of an action of slander. 18 — 21 
 
 GONORRHCEA, 
 
 charge of having, is actionable, 62 
 
 GOOD BEHAVIOUR, 
 
 binding to, 378, 444, 574 
 
 GOODS, 
 
 slander of title to, 79, 145 
 libel on, 32—34, 145—148 
 
 GOVERNMENT, 
 
 libels against, 415 — 418 
 patronage, may be criticized, 44 
 
 GOVERNOR, 
 
 official publication by, privileged, 257 
 communication to, privileged, 538 
 
 GRAND JURY, 
 
 defamatory presentment by, privileged. 191 
 
 GUARDIANS, BOARD OF, 260 
 
 GUARDIANS OF THE POOR, 
 words concerning, 29 
 
 GUNSMITH, 
 
 libel on, 33 
 
 H. 
 HANDBILL 
 
 of tradesman, may be criticized, 34, 50, 51 
 
 HANDWRITING, 
 
 proof of, 533, 580 
 
 HATRED, 
 
 words exposing plaintiff to, 21, 22 
 
 " HEALER OF FELONS," 
 meaning of, 114 
 
 HEARSAY, 
 
 sufficient ground for honafide belief, 21-1, 278 
 
 HEIR, 
 
 slander of title of, 139
 
 GENERAL INDEX. 709 
 
 HERESY, 
 
 no crime, 396 
 
 « HEEMAPHRODITE," 
 
 not actionable, 67 
 
 HIEROGLYPHICS 
 
 may be a libel, 8 
 
 HISTORY, 
 
 matters of, may be discussed, 377 
 
 "HOCUSSED," 102 
 
 HOMCEOPATHIST, 
 
 charge of meeting in consultation, 29 
 
 HONORARY OFFICE, 
 words of one in, 64 
 
 HOSPITALITY, 
 
 loss of, 311, 324 
 
 HOUSE OF COMMONS, 
 
 report of Select Committee of, 662 
 observations on such report, 261, 391, 531 
 
 HUSBAND AND WIFE, 345 
 one in law, 152 
 
 claim by husband for words defamatory of wife, 347 
 married woman defendant, 350 
 plea that plaintiffs are not, 491 
 where wife has obtained a protection order, 346 
 repetition by wife to husband of charge afEecting herself, 330, 332 
 the like by husband to wife of a charge affecting others, 153, 332 
 
 " HYPOCRITE," 
 
 charge of being, is libellous, 22 
 
 IGNORANCE, 
 
 words imputing, 28, 29 
 
 ILLEGAL OCCUPATION, 
 
 action for slander in respect of, not maintainable, 81 
 
 ILLNESS, 
 
 as special damage arising from slander, 309, 312, 318 
 
 IMMORALITY, 
 
 charge of, if written, is actionable, 21 
 
 not if spoken, 84 — 87 
 
 in a physician, 66 
 
 in a clergyman, 64, 66, 72 
 
 " IMPOSTOR," 
 
 charge of being, is libellous, 22 
 not actionable, if spoken, 85
 
 7IO GENERAL INDEX. 
 
 IMPRIMATVIi 
 
 no longer necessary, 10, 11 
 
 IMPUTATION 
 
 of crime must be specific, 121 — 127 
 
 INCOMPETENCY 
 
 in office, 27 
 
 INCONTINENCE, 
 
 words imputing, to unmarried women, 85, 86 
 to married women, 312 
 to clergymen, 66, 72 
 
 INDECENT PUBLICATIONS 
 
 may be stopped in the post, 407 
 
 INDICTABLE OFFENCE, 
 
 imputation of, in slander, 121 — 127 
 
 INDICTMENT, 
 
 for libel, 574 
 pleading to the, 576 
 removal of, by certiorari, 578 
 averments, 575 
 amending, 577 
 costs of trial of, 590 
 forms of, 654 — 658 
 
 INFAMOUS PUNISHMENT, 
 
 what is, 54 
 
 INFANCY, 
 
 no defence, 353 
 
 INFANTS, 352 
 
 INFECTIOUS DISEASE, 
 
 imputations of having, actionable, 21, 22, 624 
 
 « INFERNAL VILLAIN," 
 libellous, 22 
 
 INFORMATION, 
 
 when privileged, though volunteered, 213 — 219, 286 
 
 INFORMATION, CRIMINAL, 
 for libel, 380—383 
 practice on, 591 — 596 
 forms of, 649, 651 
 
 INGRATITUDE, 
 
 charge of, libelloiis, 23 
 
 INITIALS OF NAME, 
 
 libel expressed by, 130, 582
 
 GENERAL INDEX. 711 
 
 INJUNCTION 
 
 will not be granted to restrain publication of libel, 13 — Ifi, 43(5, 451 
 except after verdict, 10 
 
 to restrain premature and unfair publication of procec lings in Chancery, 
 436 
 
 INJURIA SINE DAMNO, 17, 18 
 
 INJURY TO REPUTATION, 
 gist of action, 18 — 21 
 
 INNKEEPER, 
 
 libel on, 34 
 slander of, 79 
 
 INNOCENT PUBLICATION, 6, 154, 384—387, 617 
 
 INNUENDO, 
 
 office of, 100—117 
 when necessary, 109, 112, 116 
 when not necessary, 105, 107 
 drafting the, 472 
 evidence as to the, 538 
 plaintiff bound by, 102 
 
 INQUIRY, 
 
 communications in answer to, privileged, 203 — 207 
 writ of, to assess damages, 464 
 
 INSANITY, 
 
 charge of, is libellous, 23 
 of the king, 414 
 no defence, 354 
 
 INSINUATION, 
 
 libel by, 98 
 
 INSOLVENCY, 
 
 words imputing, 23, 31, 78, 79 
 acts imputing, 8, 9 
 
 INSPECTION OF DOCUMENTS, 520 
 
 both parties may now obtain, 516 
 
 INSTRUCTIONS FOR STATEMENT OF DEFENCE, 475 
 
 INSULTING LADIES, 
 
 charge of, libellous, 22 
 
 INTEGRITY, 
 
 words imputing want of, 70 
 
 INTENTION 
 
 without overt act, no crime, 57, 124 
 
 of defendant, immaterial in civil cases, 5 — 7, 264 
 
 unless occasion privileged, 264, 266 
 
 of defendant, in criminal cases, immaterial, 388 
 
 except in case of libel on dead, &c., 376 
 
 to produce natural and necessary consequence of act, presumed, 5
 
 712 GENERAL INDEX. 
 
 INTERCOURSE 
 
 of friends, of husband, loss of, words tending to cause, 22, 312 ' 
 
 INTEREST, 
 
 as ground of privilege, 233 — 243 
 
 in actions for slander of title, 141 
 
 public, matters of, may be criticized, 36 — 52 
 
 where large body of persons interested, 237 
 
 persons present who have no corresponding interest, 239 
 
 INTERROGATORIES, 500—517 
 
 leave to administer, when necessary, 501 
 
 tending to criminate, 504 
 
 as to opponent's case, 50G 
 
 what allowed, 507 
 
 striking out, 509 
 
 answer to, 511 
 
 what defendant may refuse to answer, 512 
 
 further and better answers, 515 
 
 INTOLERANCE, 
 
 religious, charge of, libellous, 23 j 
 
 IRONICAL PRAISE \ 
 
 may be a libel, 8, 23 
 
 IRONICAL WORDS 
 
 may be actionable, 8, 23, 116, 539 
 
 must be alleged to have been so spoken, 114, 539 i 
 
 ISSUES, SEVERAL, 
 
 assessment of damages on, 295 
 apportionment of costs of, 338 — 340 
 
 ITCH, 
 
 chai'ge of having, actionable, if written, 22 
 not, if merely spoken, 63 
 
 J. 
 
 "JACOBITE," 
 
 charge of being, 121, 418, 421 
 
 JEST, 
 
 publication of libel in, no defence, 6 
 
 JOINDER 
 
 of causes of action, 458 
 of parties, 369, 371, 452 
 
 JOINT, 
 
 plaintiffs, 369 ( 
 
 defendants, 371 
 
 JOINT PUBLICATION 
 
 of written language, 157, 328
 
 p 
 
 GENERAL INDEX, 713 
 
 JOINT STOCK COMPANY, 
 action by, 367 
 
 JOURNALIST, 
 
 privileges of, 36—11, 41G, 420 
 libels on, 30 
 
 JUDGE 
 
 of Superior Court, words concerniug, 426 — 439 
 
 of Inferior Court, words concerning, 64, 440 — 448 
 
 at Chambers, 437 
 
 remarks by, absolutely privileged, 188 
 
 private letter to, not privileged, 191, 237 
 
 duty of, on question of Libel or No Libel, 94, 98 
 
 on uncontroverted facts to decide if publication is privileged, 185 
 
 when to nonsuit, 543 
 
 summing-up, 550 
 
 JUDGES' CHAMBERS, 
 
 reports of proceedings in, 248 
 
 JUDGMENT, 552 
 
 in default of pleading, 495 
 by default, 463 
 proceedings after, 554 
 arrest of, 96, 118, 554, 586, 587 
 
 JUDICIAL NOTICE 
 
 of meanings of words, &c., 106, 116 
 
 JUDICIAL PROCEEDINGS, 
 
 statements made in, absolutely privileged, 188 
 
 bona fide comments on, protected, 44 
 
 private letter to judge is not privileged, 191, 237 
 
 attorney's bill of costs is not, 193 
 
 voluntary affidavit is not, 193 
 
 Courts martial, 189, 194 
 
 counsel, privilege of, 190 
 
 jury, 191 
 
 witnesses, 191 
 
 affidavits, &:c., 191 
 
 reports of, 243—257 
 
 coram nan judice, 244 
 
 ex parte proceedings, 244 
 
 reports must be fair and accurate, 250 
 
 no comments should be interpolated, 254 
 
 by party or solicitor, 256, 257. 429, 430 
 
 prohibited reports, 249, 436 
 
 JURISDICTION 
 
 of County Court, 453, 468, 565 
 of Salford Hundred Court, 569 
 
 of Ecclesiastical Courts in suits for defamation, abolished, 17, 59, 86, 403, 
 679
 
 714 GENERAL INDEX. 
 
 JURIS DICTIOK—co?i^i«?/r(7. 
 
 none to restrain by iiijimction the publication of a libel, 13 — Ifi, 436, 454, 
 
 459 
 of quarter sessions, 374, 404, 574 
 removal of indictment by certiorari, 578 
 summary, of justices as to libels, 574 
 
 JUEOR, 
 
 privilege of, 191 
 withdrawing a, 550 
 
 JURY, 
 
 to determine whether a publication be a libel or not, 16, 94, 98. 544, 557 
 
 to decide on the sufficiency of an apology, 300, 560 
 
 to construe the libel, 26, 94 
 
 to determine the meaning of words, 94 — 117 
 
 to read whole of libel, 27, 98, 551 
 
 to determine truth of the facts charged, 169, 170 
 
 must assess damages once for all, 295, 317, 320, 552 
 
 should not consider the question of costs, 295, 552 
 
 not to be dispensed with, 454, 523, 568 
 
 function of, in prosecutions for libel, 585 
 
 special, 528 
 
 JUS IN REM, 
 
 right to reputation, 1, IS 
 
 JUSTICE OF THE PEACE, 
 
 no jurisdiction in libel, 574 
 
 words by, when privileged, 188 
 
 words concerning, 64, 70, 72, 440, 441 
 
 administration of the law by, is matter of public interest, 45 
 
 reports of proceedings before, 243 — 248, 255 
 
 cannot commit for contempt, 444 
 
 sureties for good behaviour, 444 
 
 JUSTIFICATION, 169—181 
 
 onus of proving words true is on the defendant, 169 
 
 the whole libel must be proved true, 169 
 
 the rule applies to all reported speeches or repetitions of slander, 173 
 
 must justify the precise charge, 169 
 
 heading must be justified, 98, 99 
 
 of innuendo, 177 
 
 must be proved in every material part. 170 — 174 
 
 slight immaterial inaccuracy, 170 
 
 of part only, in mitigation, 17^5, 306 
 
 plea of, when evidence of malice, 274, 485, 542 
 
 must be specially pleaded, 177, 485 
 
 danger of pleading, 178, 274, 485, 623 
 
 how proved, 548 
 
 Roman law as to, 180 
 
 forms of plea of, 485, 605, 616, 624
 
 GENERAL INDEX. 71 5 
 
 JUSTIFICATION— coH< MawfZ. 
 
 in a criminal case, 178, 388 
 
 not permitted at Common Law, 388 
 
 under Lord Campbell's Act, 389 
 
 not allowed in prosecutions for blasphemous, obscene, or seditious libels, 
 
 388, 398, 414, 577 
 form of plea to information or indictment, GaO, (iGO 
 
 K. 
 KEEPING A BAWDY-HOUSE, 
 charge of, actionable, 56 
 
 KILLING, 
 
 charge of, actionable, 121, 627 
 
 KING, 
 
 libels against the, 413, 414 
 petition to, privileged, 223 
 words cannot amount to treason, 410 
 denying his title to the crown, 413 
 disparaging his ministers, 415 — 419 
 
 KNOWLEDGE 
 
 of defendant that his words were false, proof positive of malice, 267, 274 
 in criminal cases, 379, 580 
 
 L. 
 LANDLORD 
 
 and tenant, communications between, privileged, 217, 233, 236, 241 
 
 LANGUAGE, 
 
 construction of, 93 — 1 1 7 
 
 certainty of, 118 — 132 
 
 ambiguous, 107 — 116 
 
 actionable jjcr sc, 21 — 81 
 
 actionable only by reason of special damage, 82 — 92 
 
 jury to determine meaning of, 26, 94, 98, 544, 550 
 
 LARCENY, 
 
 what will amount to a charge of, 61, 122 
 charge of, actionable, 55 
 
 LAW, 
 
 ecclesiastical, 402 
 
 LEAVE TO MOVE, 554 
 
 LECTURES, 
 
 contract for hire of rooms for delivery of blasphemous, 374, 399 
 
 LEGISLATIVE ASSEMBLIES, 
 libels on, 422—425 
 petition to, is privileged, 187 
 
 LEPROSY, 
 
 charge of having, 63
 
 7i6 GENERAL INDEX. 
 
 LETTER, 
 
 confidential, not privileged from inspection, 518 
 
 before action, 453 
 
 post-marks on, 533 
 
 libels by, in what coimty published, 581 
 
 shown confidentially, 207, 615 
 
 threatening, indictment for, 377, 379 
 
 LETTERS PATENT, 
 
 slander of title to, 144 
 
 LIBEL, 
 
 defined, 1, 7, 21, 22 
 
 malice not essential to, 5 — 7, 2G4 
 
 distinguished from slander, 3, 4 
 
 action for, maintainable without proof of special damage, 2 — 4 
 
 is criminal, 4, 56 
 
 in foreign language, 110, 470, 574 
 
 remedies for, civil and criminal, 9, 376, 390 — 393 
 
 how construed, 93 — 132 
 
 or no libel, pre-eminently a question for the jury, 16, 94, 98, 557 
 
 whole to be looked at, 27, 98, 551 
 
 honafide comment, 34 — 52, 483 
 
 on the dead, 375 
 
 proof of the, 535 
 
 contract for printing, cannot be enforced, 374 
 
 blasphemous, 394—403 
 
 obscene, 404—408 
 
 seditious, 409—448 
 
 precedents of pleadings in actions for, GOO— 621 
 
 LIBEL ACT, 
 
 32 Geo. III. c. GO (Mr. Fox's), 12, 94, 585, 586 
 
 statute in full, 667 
 
 6 & 7 Vict. c. 96 (Lord Campbell's), 
 
 s. 1, 299, 465, 568 
 
 s. 2, 299, 301, 465, 487, 491, 497, 568 
 
 s. 3, 379 
 
 s. 4, 379, 572, 573, 580 
 
 s. 5, 379, 390 
 
 s. 6, 389, 576, 577, 589 
 
 s. 7, 363, 364, 365, 385, 583 
 
 s. 8, 590, 595, 596 
 statute in full, 674, 675, 676 
 
 " LIBELLER," 
 
 charge of bemg a, is actionable, 30, 56 
 
 " LIBELLOUS JOURNALIST," 
 charge of being a, 30, 171 
 
 LIBELLOUS WORKS, 
 
 no copyright in, 374
 
 GENERAL INDEX. 717 
 
 LIBERTY 
 
 of the press, defiaed, 10, 416, 420 
 
 history of growth of, 9 — 12, 421 
 
 not to be restrained by injunction, 13 — 16, 436, 454, 459 
 
 LICENSED VICTUALLER, 
 libel on, 31, 102 
 words concerning, 79 
 
 LIMITATIONS, 
 
 statute of, 455 
 
 defence under, must be pleaded, 490 
 
 LOCAL INTEREST, 
 
 matters of, may be criticized, 41, 46 
 
 LORD CHAMBERLAIN, 
 
 control over plays, 13 
 
 LUNATICS, 
 
 liability of, 264, 353 
 
 M. 
 
 MAGAZINE, 
 
 joint liability of editor and printer for libel in, 361 
 
 MAGISTRATES, 
 
 language concerning, 64, 70, 440, 441 
 
 report of proceedings before, privileged, 243 — 8, 255 
 
 cannot commit for contempt, 444 
 
 proceedings before, 571 
 
 MAINTENANCE, 
 
 loss of, by wife, as special damages, 324 
 
 MALICE, 
 
 not essential to the action, 5 — 7, 264 
 unless occasion privileged, 5, 266 
 071USS of proving lies on the plaintiff, 269 
 proof of actual, 271—288, 541 
 I. Extrinsic evidence of, 271 
 
 former publications by defendant of plaintiff, 272, 541, 545 
 former quarrels, 271, 542 
 
 acts of defendant subsequent to publication, 273 
 that the words are false is alone no evidence of, 274 
 that defendant knew the words were false, is evidence of, 267, 274 
 plea of justification, 274, 485, 542 
 II. Evidence of, derived from the mode and extent of publication, the 
 terms employed, &c., 277 
 
 (i) Wliere the expressions employed are exaggerated and 
 
 unwarrantable, 280 
 (ii) Wliere the mode and extent of publication is excessive. 282 
 communications volunteered, 286 
 absence of, tends to mitigate damages, 301 
 in actions of slander of title, 142 — 145 
 
 maliciously publishing a libel, knowing it to be false, 379, 580 
 malice in law defined, 265, 267
 
 7i8 GENERAL INDEX. 
 
 MALICIOUS PEOSECUTIOX, 9 
 
 MAN FRIDAY, 
 
 charge of being, not actionable, 25 
 
 judicial notice of the meaning of the term, 11 4 
 
 " MAN OF STRAW " 
 libellous, 22 
 
 MANSLAUGHTER, 
 
 charge of, actionable, 55, 608, 627 
 
 MARRIAGE, 
 
 loss of, as special damage, 309, 310, 474 
 evidence of loss of, 310 
 
 MARRIED WOMAN, 
 libel on, 24 
 
 slander of, 84—87, 312, 324 
 chai'ge of stealing goods of, 62, 96 
 trader, 32, 340, 349 
 as plaintiff, 345 
 as defendant, 350 
 rights of husband, 347 
 criminal liability of a, 351 
 
 may be ordered to find sureties for good behaviour, 378 
 cannot sue her husband for slander or libel, 346, 347 
 
 MARRIED WOMEN'S PROPERTY ACT, 346, 350 
 
 MARRIED WOMEN'S PROPERTY ACT AMENDMENT ACT, S51, 491 
 
 MASTER 
 
 and servant, 358 
 
 his commands no defence for his servant, 359 
 
 liable for words of his servant, spoken with his authority, SCO 
 
 ratification, 361 
 
 giving character of servant, 200—203, 268, 600 
 
 criminal liability of, 302, 385 
 
 defence under Lord CampbelPs Act, 363 — 365, 385, 583 
 
 MASTER MARINER, 
 
 charge of drunkenness agamst, actionable, 29, 215, 217 
 
 MATTERS OF PUBLIC INTEREST, 36—52 
 what are, 41, 42 
 
 matters of local interest, may be, 41, 42 
 affau-8 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
 
 GENERAL INDEX. 719 
 
 MATTERS OF PUBLIC INTEREST— co?i<m!«crf. 
 unpublished sermons, 47 
 books, 48, 49 
 pictures, 48, 49 
 architecture, 48, 49 
 theatres and concerts, 49 
 public balls and entertainments, 49, 50 
 flower show, 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, 51, 52 
 
 MAYOR, 
 
 words concerning, 28, 40. 440 
 contempt of, 440, 445 
 
 MEANING 
 
 of words is a question for the juiy, 93 — 117 
 
 assigned by innuendo, must be adhered to, 102 
 
 defendant may justify the words without the, 177, 487, G"4 
 
 MEDICAL MEN, 
 
 slanders on, 68, 76, 83, 627 
 
 libels on, 29, 34 
 
 criticism on the advertisements of, 51, 173 
 
 imputation upon, of immorality, 60, 316 
 
 proof of qualification of, 530, 531 
 
 MEETINGS, 
 
 public, reports of proceedings at, not privileged, 260 — 263 
 
 MEMBER OF PARLIAMENT, 
 
 words concerning, 71, 236, 304 
 privilege of speech of, 186, 236, 259 
 
 MEMORIAL 
 
 to Home Secretary, 222, 611 
 
 MENTAL DERANGEMENT, 
 imputations of, 23 
 
 MENTAL DISTRESS 
 
 is not special damage, 309, 312 
 
 MERCHANTS, 
 
 words concerning, 77 — 81 
 imputations on their credit, 30, 78 
 charge of keeping false account books, 80 
 imputations on their goods, 82, 79, 145 — 148 
 
 MERCHANT'S CLERK, 
 
 words concerning, 124,228 
 
 MIDWIFE, 
 
 words concerning. 68
 
 720 GENERAL INDEX. 
 
 MILITAEY AND NAVAL OFFICERS, 
 reports by, privileged, 144 
 
 MINISTER, 
 
 dissenting, words concerning, 28, 72, 73 
 proof of special damage by. 316, 320 
 
 MISCONDUCT, 
 
 general, charge of, actionable only if written, 21 
 in trade, charge of, is actionable always, 31, 80 
 
 MISDEMEANOUR, 
 
 charges of, 54, 56, 123, 124 
 
 MISJOINDER 
 
 of parties, 344 
 
 MISTAKE, 
 
 publication of libel by, 6, 153, 264, 387. 531 
 
 MIS-TRIAL, 588 
 
 MITIGATING CIRCUMSTANCES, 
 what amount to, 299—307 
 
 (i) apology and amends, 299 
 (ii) absence of malice, 301 
 
 conflicting cases on this point, 303 
 defendant's belief in truth of charge, 302, 589 
 (iii) evidence of the plaintiff's bad character, 304 
 (iv) plaintiff's previous conduct in provoking the publication, 306 
 (v) absence of special damage, 308 
 affidavits as to, receivable in crimmal cases, 589 
 
 MITIOEI SENSU, 
 
 construction in, 95 — 97 
 
 MONEY, 
 
 unfit to be trusted with, charge of being, actionable, 23 
 
 MOTHER-IN-LAW, 
 
 charge of sueing in County Court, not libellous, 25 
 
 MOTIVE 
 
 immaterial, unless occasion privileged, 5 — 7, 264, 2C5 
 in criminal cases, 376, 388 
 wicked, imputation of, libellous, 27 
 
 MOTION 
 
 for judgment, 553 
 
 71071 obstante veredicto, 554 
 
 in arrest of judgment, 554, 586, 587 
 
 for a new trial, in a civil case, 105, 556 
 
 in a criminal case, 587 
 for a rule for a criminal information, 591
 
 GENERAL INDEX. V2i 
 
 MURDER, 
 
 charge of, actionable, 55, G08 
 
 what is a sufficient charge of, 121 
 
 what insufficient, 122 
 
 charge of, explained away by context, 108 
 
 N. 
 
 NAME AND ADDRESS 
 
 of printer and his employer, 12, 531, 532 
 
 NAVAL AND MILITARY OFFICERS, 
 reports by, privileged, 144 
 
 NEGRO, 
 
 charge of being, not libellous in England, 25 
 
 NEW ASSIGNMENT, 496 
 
 NEWS, 
 
 false, fabrication of, 378 
 
 NEWSPAPER, 
 
 proprietor, liability of, 7, 157, 261, 391, 392, 618 
 
 criminal liability of, 364, 365, 386 
 
 libels on, 30, 33 
 
 cannot sue editor for contribution, 374 
 editor, liability of, 157, 261, 391, 392 
 
 libels on, 30, 603 
 printer of, 12, 157, 361, 384, 618 
 reporter, duty of, 245, 247, 254 
 letters written to, may be answered, 50 — 52 
 how much may be read in evidence, 545 
 
 not justified in publishing story told by plaintiff against himself, G 
 proof of publication of, 531 
 latitude allowed to writers in, 38, 39, 416, 420 
 actionable language concerning, 30, 105 
 imputation that it has a small circulation, libellous, 30 
 advertisement in, when privileged, 225, 226 
 statutory provisions relating to, 12, 531 
 statutory plea of apology for libel in, 299, 487, G21 
 extent of circulation of libel in, increases damage, 31, 157, 158 
 discovery of proprietors, printers, and publishers of 513, 514, 532, 619 
 copying libellous articles from another, 159, 302, 303, 584 
 reports in, of judicial proceedings, 243—257 
 reports in, of debates and proceedings of parliament, 257 —259 
 reports in, of public meetings, not privileged, 2G0 — 263 
 comments in, on matters of public interest, 34 — 52 
 editor not bound to give up name of correspondent, 452 — 153 
 publications reflecting on suitors, witnesses, or prisoners, 44, 249, 429, 430, 
 436 
 
 3 A
 
 722 GENERAL INDEX. 
 
 NEW TRIAL, 
 
 when granted, 556 — 5G1 
 
 application for, to what Court, 555, 557, 560 
 
 perverse finding of jury, 105, 558 
 
 for excessive damages, 558 
 
 for insufficient damages, 559 
 
 surprise, 559 
 
 verdict against weight of evidence, 557 
 
 on one of several issues, 557 
 
 costs of, to follow event, 560 
 
 on criminal information or indictment for libel, 587, 588 
 
 NOMINAL DAMAGES, 
 
 jury not limited to giving, 293 
 
 NONJOINDER 
 
 of parties, 314 
 
 NONSUIT, 513 
 
 no action can be brought subsequently for same cause, 515 
 
 NOT GUILTY, 
 
 plea of, abolished in civil cases, 480 
 plea of, on trial of indictment, 576, 577 
 
 NOTICE 
 
 to auctioneer, libel in, 226 
 
 of exclusion from public room, 25 
 
 of termination of engagement, no libel, 25 
 
 that defendant will not accept payment in cheques on plaintiff 's bank, 25 
 
 of action, 453 
 
 of intention to adduce evidence of apology in mitigation, 299, 488, 621 
 
 to produce, 526, 536 
 
 to inspect and admit, 526 
 
 of trial, 522 
 
 O. 
 
 OBSCENE WORDS, 401—408 
 test of obscenity, 404 
 
 summary proceedings under 20 & 21 Vict. c. 83, 405 
 reports of proceedings of Courts of Justice as to, not privileged, 249. 407 
 parties aggrieved maj^ appeal, 406 
 no copyright in, 374 
 as to sending by post, 407 
 
 OCCASION 
 
 of publication gives rise to absolute privilege, 186—196 
 qualified privilege, 196 — 263 
 
 OCCUPATION 
 
 of plaintiff, how proved, 530 
 
 libels on plaintiff in way of, 27 — 33 
 
 words concerning plaintiff in way of, 77 — 81
 
 GENERAL INDEX. 723 
 
 OFFICE, 
 
 words concerning plaintiff in his, actionable whether written, 22, 27—30 
 
 or spoken, 6i— 81 
 proof of appointment to, 530 
 
 action lies whether the office one of profit or not, G4 
 
 distinction between imputation of want of ability and imputation of 
 Avant of integrity, 28, 70 
 
 imputing ignorance in, 67, 68 
 plaintiff must be in the present enjoyment of, in slander, G9, 70 
 
 not so in libel, 27 
 the words must affect plaintiff in liis office, 65 
 imputing corruption to officer of Coiui, 28, 71 
 Judges of Superior Court, 64, 426 
 Judges of Inferior Court, 28, 40, 440 
 justices of the peace, 70, 71, 72, 440 
 clergymen and ministers, 72, 73 
 barristers-at-law, 74 
 solicitors and attorneys, 74 
 physicians and surgeons, 76 
 
 OPINION, 
 
 words lowering plaintiff in people's, 22 
 of expert witnesses, when receivable, 533 
 
 " OPPRESSIVE CONDUCT," 
 charge of, libellous, 29 
 
 OPTICIAN, 
 
 libel on, 31 
 
 OEIGINATOR OF RUMOUR 
 
 may escape punishment, 166, 329 
 
 OUTLAW, 
 
 action by, 357 
 
 civil proceedings in outlawry, now abolished, 357 
 
 OVERSEER, 
 
 words concerning, 28, 29, 229 
 evidence as to appointment of, 530 
 
 P. 
 
 PAMPHLET, 
 
 publication of report of trial in, 251 
 
 PARDON, 
 
 crime imputed for which pardon granted, 58, 497, 606 
 
 PARENT, 
 
 not liable for acts of children, 361 
 
 PARISH MEETINGS, 
 
 proceedings at, privileged, 234, 237 
 
 reports in newspapers of proceedings at, 260 
 
 3 A 2
 
 724 GENERAL INDEX. 
 
 PARISH OFFICERS, 
 
 ■words affecting, 28, 29 
 constable, 71, 237 
 overseer, 28, 29, 229 
 churchwarden, 62 
 wayTvarden of a district, 46 
 
 PARLIAMENT, 
 
 speeches in, absolutely privileged, 186 
 
 petition to, 43, 187, 222, 259 
 
 contempts of either House, 422 — 425 
 
 resolutions of House of Commons, 423 
 
 power of commitment, 423 
 
 Speaker's warrant not to be too closely scrutinized, 423 
 
 PARLIAMENTARY DEBATES AND PROCEEDINGS, 
 reports of, in newspaper, privileged, 257 — 259 
 may be freely commented on by every one, 35, 42, 43 
 
 PARLIAMENTARY PAPERS, 
 
 liability for publication of, 187 
 
 statute protecting authorised publication of, 187, 672 — 674 
 
 PAROCHIAL 
 
 affairs may be matter of public comment, 41, 42 
 charity, privately organized, may not, 47 
 
 PARTIALITY, 
 
 charging a judge with, is actionable, 28 
 
 PARTICULARS, 
 
 of statement of claim, 479, 608, 609, 625 
 of plea, 485, 486, 632 
 
 PARTIES 
 
 to action, 344—372, 452 
 misjoinder of, 344 
 non-joinder of, 344 
 
 1. Husband and wife, 345 
 
 claim by husband for words defamatory of wife, 347 
 
 married woman defendant, 350 
 
 criminal liability of a married woman, 351 
 
 2. Infants, 352 
 
 3. Lunatics, 353 
 
 4. Bankrupts, 354 
 
 5. Receivers, 355 
 
 6. Executors and administrators, 355 
 
 7. Aliens, 356 
 
 8. Master and servant — principal and agent, 358 
 
 master's commands no defence, 359 
 
 principal liable for words spoken by his authority, 360 
 
 ratification. 361 
 
 criminal liability of master or principal, 362 
 
 9. Partners, 365 
 
 10. Corporations and companies, 367 
 
 11. Other joint plaintiffs, 369 
 
 12. Joint defendants, 370 
 
 I
 
 GENERAL INDEX. 725 
 
 PARTNERS, 
 
 in trade, words imputing insolvency to one of, 81, 367 
 
 libels on, 32 
 
 service of writ on, 461 
 
 may join in the action, 365 
 
 previous recovery against one partner, 457 
 
 appear in their own name, 463 
 
 PATENT, 
 
 slander of title to, 144 
 
 PATRONAGE, 
 
 Government, may be criticized, 44 
 
 PAWNBROKER, 
 
 words concerning. 111 
 
 PAYMENT INTO COURT 
 
 under Lord, CamplelVs Act, 299—301, 487 
 
 no admission of liability, 300 
 
 form of plea, 488 
 
 under the Judicature Act, 491 — 494 
 
 no admission of liability, 493 
 
 any pleas can be pleaded at same time, 480, 493 
 
 form of plea, 494, 630 
 
 PECUNIARY LOSS 
 
 is special damage, 309 
 
 when essential to action, 18 — 21 
 
 PEERS 
 
 and great officers of the realm, slander of, 133—136 
 
 PENCIL MARK 
 
 may be a libel, 7 
 
 PERJURY, 
 
 what amounts to a charge of, 123 
 charge of committing, actionable, 24, 56 
 charge of procuring one to commit, 56, 130 
 
 PERMANENT MARK OR SIGN, 
 if scandalous, a libel, 3, 22 
 
 PERSONS 
 
 under various disabilities, 344 — 372 
 
 PETITIONS 
 
 for redress of injuries, privileged, 220 — 224 
 to Parliament, arc privileged, 222, 259 
 
 are matters of public interest, 43, 259 
 to the Sovereign, 223
 
 726 GENERAL INDEX. 
 
 THYSICIAN, 
 
 words concerning, ^'$>, 76 
 
 libel on, 29, 3-1 
 
 imputation of adultery to, 66, 83, 316 
 
 proof of qualification of, 530, 531 
 
 " PICKPOCKET," 
 
 charge of being a, is actionable, 122 
 
 PICTURES, 
 
 libels by, 3, 22, 24 
 
 libellous, public exhibition of, 374 
 
 publicly exhibited, may be criticized, 48, 49 
 
 PILLORY, 
 
 punishment of, in former times, 394, 412 
 
 PLACARD, 
 
 on wall, proof of, 536 
 publication by, 153, 283, 613 
 
 PLACE 
 
 of trial, change of, 528 
 
 of publication, how far material, 110, 581 
 
 PLAGUE, 
 
 charge of having the, 63 
 
 PLAINTIFF, 
 
 who may be, 344 — 372 
 
 death of, 355 
 
 must be sufficiently pointed at and identified, 127, 540 
 
 general reputation of, 298, 304 
 
 conduct of, in provoking libel, &c., 306 
 
 evidence for, 530 — 542 
 
 matters to be considered by, 449 
 
 proof that the words refer to, 127 — 132, 540 
 
 special character, proof of, 530 
 
 joint plaintiffs, 369 
 
 infant. 352 
 
 married woman, 345 
 
 PLEADINGS, 
 
 Li Civil Cases, 
 
 statement of claim, 469 — 475 
 
 joinder of causes of action, 458 
 
 averments, what necessary, 118, 473, 531 
 
 imiucndo, 100, 107, 538 
 
 colloqiiimn, 118, 120 
 
 special damage, 138, 289, 308—333, 474 
 
 venue, 474 
 
 amendment of, 498, 537, 545 
 
 particular's, 479, 609, 625 
 
 demiu-rer, 475, 606 
 
 statement of defence. 480 — 494
 
 GENERAL INDEX. 727 
 
 TLB ADINGS—co)ii!i« iter?. 
 
 bad for uncertainty, 487 
 
 counterclaim, 49-1 
 
 reply, 496 
 
 rejoinder, 498 
 
 amendment of, 498, 545 
 
 default in, 500 
 
 variance, 471, 536, 537, 545 
 
 precedents of, 596 — 661 
 
 in actions for libel, 600 — C21 
 
 of slander, 621 — 634 
 of slander of title, 634 — 644 
 hi Criminal Cases, 
 indictment, 574 
 amendment of, 577 
 demurrer to, 659 
 forms of, 654 — 658 
 pleas, 576 
 forms of, 659 
 replication to pleas, 660 
 demurrer to plea, 577, 661 
 
 justification under Lord Campbell's Act, 389, 576 
 information, 595 
 amendment of, 595 
 form of, 649, 651 
 form of pleas to, 650 
 replication to pleas, 651 
 
 POLICEMAN, 
 
 slander of, 189, 332 
 ■words published to, 221 
 
 POLITICAL AUTHORS, 
 
 privilege as to vrritings of, 38, 39, 416, 420 
 
 POST-CARD, 
 
 publication of libel by, avoids privilege, 151, 283, 284 
 
 POST-MARK, 
 
 as evidence of publication in a particular county, 581 
 
 POST-MASTER, 
 
 complaint as to, 217, 223 
 
 POX, 
 
 charge of having, 63 
 
 PRACTICE IN CIVIL CASES, 449—570 
 considerations before writ, 449 
 parties, 452 
 
 letter before action, 453 
 notice of action, 453 
 choice of Court, 453 
 district registry, 454 
 Statute of Limitations, 455, 490
 
 728 GENERAL INDEX. 
 
 PEACTICE IN CIVIL CASES— coni!micrf. 
 former proceedings, 456 
 joinder of causes of action, 458 
 endorsement on writ, 459 
 service of the writ, 460 
 appearance, 462 
 judgment by default, 463 
 matters to be considered by the defendant, 465 
 security for costs, 466 
 remitting the action to County Court, 468 
 subsequent proceedings in County Court, 566 
 pleadings {Sec Plkadings), 469—498 
 amending pleadings, 498 
 default in pleading, 500 
 interrogatories, 500 — 515 
 
 discovery and inspection of documents, 515 — 522 
 default in making discovery, 522 
 notice of trial, 522 
 entry for trial, 522 
 advice on evidence, 524 
 examination of witnesses before trial, 526 
 special jury, 528 
 change of venue, 528 
 trial, 529—553 
 compromise, 550 
 costs, 553 
 
 proceedings after judgment, 554 
 application for a new trial, 556 
 proceedings in the Court of Appeal, 561 
 County Court proceedings, 565 
 other inferior Courts, 569 
 
 PEACTICE IN CRIMINAL PEOCEEDINGS BY WAY OF INDICTMENT, 
 571—591 
 proceedings before magistrates, 571 
 indictment, 574 
 
 pleading to the indictment, 576 
 certiorari, 578 
 
 evidence for the prosecution, 580 
 evidence for the defence, 582 
 summing-up and verdict, 585 
 proceedings after verdict, 585 
 sentence, 589 
 costs, 590 
 
 PEACTICE IN PEOCEEDINGS BY WAY OF CEIMINAL INFORMA- 
 TION, 591-596 
 motion for the rule, 591 
 argument of the rule, 593 
 compromise, 594 
 trial and costs, 595
 
 GENERAL INDEX. 729 
 
 PRECEDENTS 
 
 of pleadings, &c., Appendix A., 596 — 661 
 
 in actions for libel, 600 — 621 
 
 in actions of slander, 621 — 634 
 
 in actions of slander of title, 634 — 644 
 of criminal pleadings, 649 — 661 
 
 PREFATORY AVERMENTS, 
 
 as to traverse and denial of, 452 
 evidence as to, 531 
 
 PRESS, 
 
 Uberty of, defined, 10, 416, 420 
 history of growth of, 9 — 12, 421 
 abuse of liberty of, 10 
 censorship of, 9 — 12 
 
 PREVIOUS ACTIONS, 456, 490 
 
 PREVIOUS REPORTS OR RUMOURS, 165, 231—233, 305, 306, 584 
 if bona fide repeated to person calumniated, 167, 217, 219 
 
 PRIEST, 
 
 words spoken by, 242 
 
 PRINCIPAL, 
 
 liable for words spoken by his authority, 360 
 criminal liability of, 362, 385 
 
 defence under Lord Campbell's Act, 363 — 365, 385, 583 
 ratification, 361 
 
 PRINTER, 
 
 liability of, 157, 361, 384 
 
 to print his name and address on every publication, 12 
 
 to preserve name of his employer, 12 
 
 cannot recover wages for printing libellous matter, 374 
 
 PRINTING, 
 
 Ubels by, 3, 156—158 
 
 imma facie evidence of pubfishing, 154, 155, 533 
 
 a libel without publication, 152, 386 
 
 PRIVILEGED OCCASIONS, 182—263 
 
 defence that words were spoken on a privileged occasion, 182 
 
 occasions absolutely privileged, 183 
 
 occasions on which the privilege is qualified, 183 
 
 the Judge to decide whether occasion is privileged or not, 185 
 
 presumption of privilege rebutted by evidence of malice, 264—288 
 
 /. Occasions ahsolutehj Privileged, 185 — 196 
 (i) Parliamentary proceedings, 1 86 
 (ii) Judicial proceedings, 188 
 
 words spoken by a judge, 188 
 words spoken by counsel, 190 
 words spoken by a witness, 191 
 (iii) Naval and military affairs, 194
 
 730 GENERAL INDEX. 
 
 PRIVILEGED OCCASIONS— cOTiCmifcd 
 II. Qiiahfied PrlvUvijc, 196—263 
 
 cases of qualified privilege classified, 190 
 I. Where circumstances cast upon the defendant the duty 
 
 OP MAKING A COMMUNICATION. 
 (A.) Communications made in, 2>^trsnance of a Duty owed to Society, 
 198 
 duty may be moral or social, 198 
 (i) Characters of servants, 200 
 
 (ii) Other confidential communications of a private nature : 
 («.) Ansvrers to confidential inquiries, 203 
 Q)) Confidential communications not in answer to a 
 
 pre\-ious inquiry, 207 
 (c) Communications made in discharge of a duty 
 arising from a confidential relationship existing 
 between the parties, 209 
 id) Information volunteered when there is no con- 
 fidential relationship existing between the 
 parties, 213, 286 
 difficulty of the question, 215, 288 
 (iii) Information given to any public officer imputing crime 
 or misconduct to others, 220 
 such officer^ must have some jurisdiction to entertain 
 complaint, 223 
 (B.) Communications made in Self-Defcnce. 
 
 (iv) Statements necessary to protect defendant's private 
 
 interests, 225 
 (v) Statements provoked by a previous attack by plaintrS on 
 defendant, 228 
 statements invited by the plaintiff, 230 
 
 II. Where the Defendant has an interest in the Subject- 
 matter OP the Communication, and the Person to 
 WHOM the Communication is made, has a Corresponding 
 Interest, 233 
 where a large body of persons are interested, 237 
 if strangers present, the privilege will be lost, 239 
 
 III. Privileged Reports, 213 
 
 (i) Picports of Judicial Proceedings, 213 
 matters coram non.judicc, 214 
 reports not privileged, 219 
 reports must be accurate, 250 
 no comments should be interpolated, 251 
 an accurate report may still be malicious, 256 
 (ii) Reports of Parliamentary Proceedings, 257 
 (iii) Other Reports, 259 
 
 suggestion of the Select Committee of the House of 
 Commons, 261 
 
 PRIVILEGE OF DOCUMENTS 
 from inspection, 517 — 519
 
 GENERAL INDEX. 73 1 
 
 PRIVILEGE OF WITNESSES, 
 
 as to self -criminating evidence, 501, 53-i 
 as to production of state papers, 535, 536 
 
 PROCEEDINGS, 
 
 former, 456, 490 
 
 after judgment, 554 
 
 in the Court of Appeal, 561 
 
 in the County Court, 565 
 
 before magistrates, 571 
 
 after verdict of guilty, 585 
 
 PROCTOR, 
 
 words concerning, 30 
 
 PROFANE LIBELS, 394—403 
 
 PROFESSION, 
 
 words injuring the plaintiff in the way of, actionable whether spoken, 
 64—81 
 or wi-itten, 21, 27—30 
 
 PROFITS, 
 
 loss of, is special damage, 293, 309, 313 — 320 
 
 PROOF 
 
 of plaintiff's special character, 530 
 of publication, 531 
 of the libel, 535 
 
 of the speaking of the slander, 537 
 that the words refer to the plaintiff, 540 
 
 that the words were spoken of the plaintiff in the way of his office, pro- 
 fession, or trade, 541 
 
 PROPRIETOR 
 
 of newspaper liable for all libels contained therein, 
 civilly, 7, 157,261, 391,392 
 criminally, 364, 365, 386 
 
 PROSPECTIYE DAMAGES, 317, 320 
 
 PROSTITUTE, 
 
 charge of being, not actionable, if spoken, 85 
 charge of having under protection, libellous, 24 
 
 PROSTITUTION, 
 
 words imputing, to a single woman, 84 — 87 
 to a schoolmistress, 84 
 to tlic shopwoman of a trader, 84 
 to a married woman, 84 — 87, 312, 324 
 
 PROTECTION ORDER, 346
 
 732 GENERAL INDEX. 
 
 PROVOCATION 
 
 by libel to a breach of the peace, 3, 373 
 
 by plaintifi's conduct, 228, 306, 380 
 
 by previous libels, when evidence in mitigation, 307, 380 
 
 PUBLIC ATTENTION, 
 
 persons in-bating, may be criticized, 51, 52 
 
 PUBLIC BENEFIT, 
 
 when a defence on trial of indictment or criminal information, 389, 390, 
 650, 659 
 
 PUBLIC INTEREST, MATTERS OF, 
 
 may be freely commented on, 34 — 52 
 
 what are, 41 — 52 
 
 afEairs of State, 42 — 44 
 
 Government patronage, 44 
 
 debates and proceedings in Parliament, 42, 44 
 
 petitions to Parliament, 43 
 
 books and other literary publications, 48, 49 
 
 paintings and works of art. 48, 49 
 
 architecture, 48, 49 
 
 advertisements, placards, circulars, 50, 51 
 
 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 affair?, 47, 48 
 
 the public conduct of public men, 34, 40, 41, 43 
 
 persons inviting public attention, 50 — 52 
 
 newspaper controversies, 50 — 52 
 
 PUBLIC MEETINGS, 
 
 reports of proceedings at, not privileged, 241, 260 — 263 
 comments on conduct of persons attendmg, permitted, 52 
 
 PUBLIC MEN, 
 who ai'e, 41 
 
 their public conduct may be fi-eely discussed, 34, 40—43 
 libels on by imputation of coiTupt motives, 37 — 39, 43 
 
 PUBLIC PERFORMANCES AND ENTERTAINMENTS 
 
 may be the subject of fair criticism, 49, 50 
 
 PUBLIC POLICY, 
 
 ground for refusing to produce a document, 535, 536 
 
 PUBLICAN, 
 
 libel on, 31 
 
 PUBLICATION, 150—168 
 definition of, 150 
 
 must_be to a third person, 150, 152, 383 
 
 jjlaintifE must prove a publication by the defendant in fact, 153 
 publication ^;f 7- nlhnn, 155 
 publication in a newspaper, 157
 
 GENERAL INDEX. 733 
 
 PUBLICATION— cort^-Z/^w'ti 
 
 repetition of a slander, IGl 
 
 naming your authority now no defence, 1G2 
 
 rule that every one repeating a slander becomes an independeut 
 
 slanderer, 166 
 exceptions to this rule, 167 
 by sale in a shop, 160, SSi 
 by telegram or postcard, 151, 283, 284 
 by placard, 153, 536 
 
 by copying from another newspaper, 159, 302, 303, 581 
 by mistake, 6, 153, 385, 387 
 by anticipation, 261 
 
 by contrivance of plaintiff himself, 108, 231 
 cannot be restrained by injunction, 13 — 16 
 proof of, 531 
 proof of where libel is lost, 536 
 
 PUBLISHER, 
 
 who is liable as, 156—166, 384—387 
 
 PUFFING 
 
 own goods, no libel, 32, 33 
 
 PUNISHMENT 
 
 at common law, 371, 378 
 
 under s. 4 of Lord Campbell's Act, 379 
 
 under s. 5, 379 
 
 by requiring sureties for good behaviour, 378, 444 
 
 for a blasphemous libel, 394 
 
 for an obscene libel, 404 
 
 for a seditious libel, 412 
 
 for contempt of court, 428, 433, 434 
 
 piUoiy, 394, 412 
 
 what may be shown in mitigation of, 589 
 
 Q. 
 " QUACK," 
 
 charge of being a, libellous, 29 — 31 
 
 QUALIFIED PRIVILEGE, 196—263 
 
 cases of qualified privilege classified, 196 
 
 I, Where circumstances cast upon the Defendant the 
 
 DUTY OF Making a Communication. 
 (A). Communications made in imrsuanoe of a Ditty owed to Society, 198 
 (i) Characters of servants, 203 
 
 (ii) Other confidential communications of a private nature, 203 
 (ff) answers to confidential inquiries, 203 
 (h) confidential communications not in answer to a previous 
 
 inquiry, 207 
 (c) communications made in discharge of a duty arising 
 from a confidential relationship existing between 
 the parties, 209
 
 734 GENERAL INDEX. 
 
 QUALIFIED PRIVILEGE— co?i^mM«?. 
 
 (r7) information volunteered when there is no confidential 
 relationship existing between the parties, 213 
 (iii) Information given to any public officer imputing crime or 
 misconduct to others, 220 
 such officer must have some jurisdiction to entertain com- 
 plaint, 223 
 (E). Commvmcat'wn made in Self-Defence. 
 
 (iv) Statements necessary to protect defendant's private interests, 22."> 
 (v) Statements provoked by a previous attack by plaint'ff on de- 
 fendant, 228 
 statements invited by the plaintiff, 230 
 
 II. Where the Defendant has an Tnteeest in the Subject- 
 
 matter OF the Communication, and the Person to whom 
 the Communication is made, has a corresponding In- 
 terest, 233 
 where a large body of persons are interested, 237 
 if strangers present, the privilege will be lost, 239 
 
 III. Privileged PvEPORts, 213— 203 
 
 QUARTER SESSIONS, 
 
 power to punish for contempts, 442 
 
 jurisdiction to try indictments for libel, 374, 404, 574 
 
 R. 
 
 RAILWAY COMPANY, 
 
 placarding conviction for infringement of bye-laws, 173, 170 
 may be sued for libel, 3G9 
 
 " RASCAL," 
 
 libellous, 22 
 
 RATIFICATION, 3G1 
 
 RE-ASSERTION OF SLANDER 
 
 in reply to inquirer, 230 — 233 • 
 
 RECEIVERS 
 
 appointed by Court of Chancery, 355 
 
 RECEIVING STOLEN GOODS, 
 charge of, actionable, 56, 59 
 what a sufficient charge of, CO, 123 
 
 RECOGNISANCES, 378, 444, 574 
 
 RECORD, 
 
 courts of, 426—443 
 courts not of, 444—447 
 
 REDRESS, 
 
 bona fide claim for, privileged, 220—228 
 
 REGISTRY, DISTRICT, 
 issuing writ in, 454
 
 GENERAL INDEX. 735 
 
 EEJOINDER, 498, 613 
 
 RELIGION, 
 
 publications against, 394 — 403 
 
 RELIGIOUS INTOLERANCE, 
 
 charge of, libellous, 23 
 
 RELIGIOUS SECTS AND SOCIETIES, 
 libels upon, 376, 377, 381 
 
 sentence of expulsion from, 86, 87, 312, 319, 325 
 excommunication, 59 
 
 REMEDIES FOR LIBEL, 
 
 civil and criminal, 9, 376, 390—393 
 
 REMITTING ACTION 
 
 to the County Court, 468 
 
 REMOTENESS OF DAMAGES, 321 
 
 damage resulting to the husband of the female plaintiff, 323 
 
 damage caused by the act of a third party, 325 
 
 not essential that such third person should believe the charge, 327 
 
 wrongful and sijontaneous act of a third person, 328 
 
 originator of a slander not liable for damage caused by its repetition, 329 
 
 exceptions to this rule, 331 
 
 REPETITION 
 
 of slander heard from another, IGl— 168, 328 — 333 
 
 naming informant now no avail, 162, 165 
 
 formerly a defence, 162 
 
 hona fide repetition to person calumniated, 167. 217, 219 
 
 libellous articles reproduced from other newspapers, 159, 302, 303, 584 
 
 of libel, may be evidence of malice, 273 
 
 of slander, by wife to husband, 152, 330, 332 
 
 REPLICATION 
 
 in criminal cases. 651, 660 
 
 REPLY, 
 
 as to pleading, 496 
 
 of pardon to a plea charging felony, 58, 497, 606 
 to jilca under Lord Campbell's Act, 299, 497 
 precedents of, 605, 612, 630 
 
 REPORTS, 
 
 (i) Reports of judicial proceedings, 243 
 of e.c parte proceedings, 244 
 of matters coram nonjudicc, 244 
 must be accurate, 250 
 no comments should be interpolated, 254 
 an accurate report may still be malicious, 256 
 whole should be considered, 27 
 (ii) Reports of parliamentary proceedings, 257 
 (iii) Other reports, 259 
 
 suggestion of the Select Committee of the House of Commons, 261
 
 736 GENERAL INDEX. 
 
 EEPOKTBE, 
 
 duty of, 2i5, 247, 254 
 
 KEPUTATION 
 
 defined, 150 
 is property, 17 
 
 injury to, gist of action, 17 — 21 
 of plaintiff in aggravation of damages, 298 
 in mitigation of damages, 304 
 
 " EETURNED CONVICT," 
 actionable, 58 
 
 REVIEWS OF BOOKS, PICTURES, &c., 
 how far permitted, 36 — 41, 48 
 
 RIDICULE. 
 
 words wliich expose a person to, libellous, 21, 22 
 as a weapon of criticism, 37, 48 
 
 " RIDING SKIMMINGTON," 9 
 
 EIGHT OF ACTION 
 
 not assignable, 354 
 
 EOBBEEY, 
 
 charge of, actionable, 56 
 
 " EOGUE," 
 
 libellous, 22 
 
 not actionable, if spoken, Gl 
 
 EOMAN CATHOLICS, 
 
 penal statutes against, 58 
 
 libel on monks and nuns, 126, 377 
 
 attacks upon, 6, 44, 250, 260 
 
 ROMAN LAW 
 
 as to acts injurious to reputation of other 
 as to justification, 180 
 as to malice, 184 
 
 " EOUGH MUSIC," 9 
 RULE ABSOLUTE, 593 
 
 RULE NISI, 
 
 for a criminal information, 591 
 
 EULE OF COUET, 
 
 contempt by disregarding, 431
 
 GENERAL INDEX. 737 
 
 RUMOUR, ' 
 
 existeuce of, no justiticatiou for a repetition of, 1G5, 231 — 233, 305, 30G, 
 
 584 
 except honafdi' repetition to person calumniated, 167, 217, 219 
 •when evidence in mitigation, 305, 30(5 
 false rumours, wilfully circulated, 378 
 
 " RUNAGATE," 
 
 not actional jle, CI 
 
 y. 
 
 SALFORD HUNDRED COURT, 
 
 jurisdiction of, in slander and libel, 5(39 
 costs in, 338 
 
 SATISFACTION, ACCORD AND, 189 
 
 SCAXDAL UM MA G^ATUM, ^ 
 
 statutes of, 133—135 -^ 
 who may hr'm^ action of, 135 
 the nature of the words to sui)port the action, 135 
 venue in actions for, 130 
 
 SCHOOLMASTER, 
 
 words concerning, GG, 224 
 
 SCHOOLMISTRESS, 
 
 imputing prostitution to, G7, 84 
 
 " SCOUNDREL," 
 
 charge of being, libellous, 23 
 
 SECONDARY EVIDENCE, 
 
 when libel lost or destroyed, 53G 
 
 SECRETARY OF STATE, 
 
 letters to, privileged, 19G, 211, 222—224 
 orders issued by, absolutely privileged, 196 
 
 SECT, 
 
 libels on, 376, 377, 381 
 
 SECURITY FOR COSTS, 346, 352, 466 
 
 SEDITION, 
 
 charge of, actioiial>le, 121 
 
 SEDITIOUS WORDS, 409-148 
 dclined, 409 
 treasonable words, 410 
 
 words defamatory of the sovereign liimsclf, 413 
 truth no defence, 4 1 4 
 
 words defamatory of the king's ministers, 415 
 words tending to subvert the Government, 418 
 
 3 B
 
 738 GENERAL INDEX. 
 
 yEDl T 1 0U8 WORDS— coH(!/n ucd. 
 
 words defamatory of the Constitution, 419 
 
 latitude allowed to political writers, 420 
 
 words inciting to disaffection and riot, 421 
 
 words defamatory of cither House of rarliament, 422 
 
 commitment for contempt, 423 
 
 Colonial legislative bodies, 425 
 
 words defamatory of the Superior Courts of Justice, 426 
 
 contempt of Court, 428 
 
 wilful disobedience to an order of Court, 431 
 
 attachment and committal, 433 
 
 Colonial Courts of Justice, 438 
 
 words defamatory of Inferior Courts of Justice, 440 
 
 contempt of an Inferior Court of Eecord, 442 
 
 sureties for good behaviour, 444 
 
 statutory powers of Inferior Courts, 445 
 
 Ecclesiastical Courts, 448 
 
 no justification that it first appeared in another papei-, 584 
 
 whether the publication is a seditious libel is a question for the jury, 420, 
 
 585 
 copies of, may be seized after conviction for^ 590 
 
 SELECT COMMITTEE OF THE HOUSE OF COMMONS, 
 report of, on the law of libel, GG2 
 observations on such report, 201. 391, 531 
 
 SELF-DEFENCE, 
 
 language published in, is privileged, 225 — 232 
 
 SENTENCE, 589 
 
 SEXSVS VERBOlll'M EX CAl'SA DKJENDI ACCIPIEXDIS K>T 
 
 108 
 
 SERMONS, 
 
 not privileged, G, 242 
 unpublished, criticisms on, 47 
 
 SERVANT, 
 
 when liable as publisher, 358 
 
 employer, when liable for acts of, 3()0— 3G5. 385. 583 
 
 charge against, when privileged, 203, 209, 22G, 275 
 
 communication to employer concerning, when privileged, 217 
 
 giving character to, 200—203. GOO 
 
 delivery of libel by, not knowing contents, 359. 384, 585 
 
 SERVICE OF THE WRIT. 4G(i 
 
 \ 
 SHAREHOLDERS, 
 
 proceedings at meeting of, privileged, 238, 242 
 reports to. privileged, 235, 242 
 
 SHIP. 
 
 libel on, 34. 132 
 slander of, 357
 
 GENERAL INDEX. 739 
 
 SHIPOWNER, 
 
 words concerning, 34, 132 
 
 SHOPKEEPER, 
 
 words conceraing, actionable, 78 — 81, 22(1, 227 
 
 SHOPMAN, 
 
 said to have scarlet-fever, 3.")8 
 
 SHOPWOMAN, 
 
 words imputing prostitution to, 84 
 
 SICKNESS 
 
 is not special damage, 300, 312 
 
 SLANDER, 
 
 defined, 1 , 7 
 
 distinguished from libel, 3, 18 — 21 
 
 when not actionable without proof of special damage, 253, 308, 300 
 
 I. Words imputing an indictable offence, 54, 021 
 early cases on this subject, 58 
 
 the charge must be specific and precise, TiO, 120 — 127 
 the crime imputed must be possible, 61 
 II. Words imputing a contagious disease, 62, 624 
 III. Words spoken of the plaintiff in the way of his office, profession, 
 
 or trade, 64 
 such words must affc(;t him in such ofltice, profession, or 
 
 trade, 65 
 imputation of professional ignorance or unskilfulness, 67 
 plaintiff must be carrying on such trade, &c., at the time he 
 
 is defamed, 69 
 words imputing want of integrity to any one holding an 
 
 office of trust, 70 
 words concerning clergymen, 72, 628 
 words concerning barristers, solicitors, i:c.. 74 
 words concerning pliysicians and surgeons, 75, 027 
 words affecting traders in tlie way of their trade, 77, 631 
 imputations of insolvenc}', 78 
 imputations of dislioncsty and fraud in the conduct of tlicir 
 
 trade, 70, 633 
 
 IV. Words actionable only by reason of special damage, 82 
 words imputing immorality, 83 
 words imputing unchastity, 84 
 unsatisfactory state of the law on this point, 86 
 all words causing special damage are actionable. 87, 148 
 
 repetiti.m of, 161—168, 328—333 
 
 naming informant, 162 
 
 himti fulc repetition to person calumniated, 107, 217, 219 
 
 re-assertion in answer io plaintiff's inquiry, 230 — 233 
 
 proof of the speaking of the, 537 
 
 precedents of pleadings in actions of. 621 — 633 
 
 3 B 2
 
 740 GENERAL INDEX. 
 
 SLANDER OF TITLE, OR AVORDS CONCERNING THINGS, 137—149 
 definition, 137 
 
 I. Slander of title proper, 138 
 
 actionable, if words fahc and malicious, and if sj)eclal 
 
 damage be proved, 138 
 proof of malice, 142 
 
 II. Slander of goods manufactured or sold by another, 145 
 
 other -words producing special damage, 148 
 precedents of pleadings in actions of, G34 — G43 
 
 SLANG TERMS, 
 
 question for jury as to meaning of, 110 
 evidence for jury as to, 538 
 
 SMALL-POX, 
 
 charge of having, not actionable, 03 
 
 SOCIETY, 
 
 loss of, words tending to cause. 22 
 of neighbours, 312 
 of husband, 312 
 
 SOLICITORS, 
 
 words concerning, 74, 75 
 libels on, 2'), 30, DO 
 
 SOLICITING ANOTHER TO COMMIT A CRIME, 
 
 charge of, actionable, 5G 
 
 SORCERY, 
 
 charge of, formerly actionable, 59 
 
 SPECIAL CHARACTER, 
 
 proof of plaintiff's, 530 
 mode of averring. 473, 474 
 
 SPECIAL DAMAGE, 
 
 when essential to action, IS 
 
 defined, 289 
 
 words causing, 82, 87, 148 
 
 essential in slander of title, 138 
 
 what constitutes, 309 
 
 must be specially pleaded. 313, 474 
 
 arising after action, 317 
 
 where the words are actionable y^^'r sc, 318 
 
 where the words are not actionable ^vr;- sc, 308 
 
 remoteness of, 321—333 
 
 SPECIAL JURY, 528 
 
 SPEAKING OF THE SLANDER, PROOF OF, 537 
 
 SPEECHES 
 
 in Parliament, reports of, 35. 42, 180, 257 
 of counsel, reports of, 250 — 253 
 
 SPIRITUAL COURT, 
 
 jurisdiction of, in cases of dcfamafcn, 17, 59, 85, 8G
 
 GENERAL INDEX. 74^ 
 
 STAB CHAMBER, 
 
 docrees of, regulating press, 10, 11, 13 
 criminal jurisdiction of, 14 
 
 STATEMENT OF- CLAIM, 4G9— 175 
 joinder of causes of action, 458 
 the Yory words must be set out, 101, 470 
 averments, what necessary, 118, 473, 531 
 innuendo, 100, 107, 538 
 words in a foreign language, 470 
 special damage must be specially pleailod, 313, 474 
 venue, 474 
 
 particulars of, 479, 609, G25 
 demurrer to, 475, G05 
 precedents of. in libel, GOO, GOl, G03, G07, G13, G15 
 
 ' in slander, G21, G24, G2G, G28, G31, G32 
 in slander of title, G39, G41 
 
 STATEMENT OF DEFENCE, 475, 480 
 traverses, 481 
 
 lund Jide comment, no libel, 483 
 privilege, 484 
 justification, 485 
 apology, 487, G21 
 accord and satisfaction, 489 
 previous action, 490 
 other defences, 490 
 payment into Court, 491 
 counter-claims, 494 
 judgment in default of pleading, 495 
 precedents in libel, GOl, G05, GOU, G14, GIG, 617, G18 
 
 in slander, G22, 623, 626, 629, 631, 633 
 
 in slander of title, 640, 643 
 
 STATE PAPERS, 
 
 privilege as to production of, 535 
 
 STATUE 
 
 may be a libel, 8 
 
 STATUTE OP LIMITATIONS, 
 plea of, 455, 490 
 
 STATUTES. Sec Appendix of Statutes, C, 664—683 
 contents of such Appendix, 664 
 
 See also Table of Statutes cited, Ixvii. 
 
 Table of Rules and Orders cited, Ixx, 
 
 STAYING PROCEEDINGS IN ACTION, 479, 557, 564 
 
 STEALING, 
 
 what amounts to charge of, 61, 122 
 goods of married woman, 62, 96 
 
 STOCK-JOBBER, 
 
 words concerning, 81
 
 742 GENERAL INDEX, 
 
 STOLEN GOODS, 
 
 charge of receiving, 50, 50, fiO, 123 
 
 STORY TREVIOUSLY TOLD BY TLAIXTIFF AGAINST HIMSELF, 25 
 
 STRIKING OUT INTERROGATORIES, 509 
 
 STRUCK OFF THE ROLLS, 
 
 charge that an attorney wa?, or ought to be, 7, 30, 75, 173, 205 
 
 " STRUMPET," 
 
 charge of being a, not actionable, 85 
 eifcopt in London and Southwark, 59, 84 
 
 RUBOBNATION OF RERJURY, 
 charge of, actionable, 56 
 
 SUBSCRIBER TO A CHARITY, 
 
 statement by, respecting the officers of charity, 238, 239 
 
 SUMMARY JURISDICTION 
 
 of justices to require sureties for good behaviour, 441, 574 
 
 to issue warrant to apprehend a libeller, 571 
 
 to commit for trial, 573 
 
 to take bail, 573 
 
 truth of libel may not be inquired into, 572 
 
 in cases of obscene libels, &c., 405 — 407 
 
 seizure of other libellous papers, illegal, 574 
 
 SUMMARY RROCEEDINGS 
 
 before magistrates, reports of, 243—248 
 
 SUMMING UP 
 
 in a civil case. 550 
 in a criminal case, 585 
 
 SUMMONS 
 
 for leave to plead and demur, 47G 
 
 for particulars, 479. G08 
 
 to amend a pleading, 498 
 
 for leave to administer interrogatories, 501 
 
 to strike out interrogatories, 509 
 
 for inspection of documents, 521 
 
 for a commission, 527 
 
 to change venue, 528 
 
 for a special jury, 528 
 
 before a magistrate, 571 
 
 SUPERIOR COURTS, 
 
 words concerning, 42r( 
 contempts of, 428 
 
 SUPERIOR OFFICER, 
 
 reports to, privileged, 194, 195
 
 GENERAL h\DEX 743 
 
 SURETIES 
 
 for good behaviour, 378, 144, 57i 
 
 SURGEON, 
 
 slander of, G8, Tfi, 83 
 
 libels on, 20, 34 
 
 proof of qualification of, 530, 531 
 
 SURPRISE 
 
 as ground for new trial, 559 
 
 SUSPICION, 
 
 words of mere, not actionable, 57 
 
 bona fide communication of, 204, 217, 220, 222 
 
 " SWINDLER," 
 
 charge of being a, libellous, 23 
 not actionable, if spoken, Gl 
 
 SYPHILIS, 
 
 charge of having, 03 
 
 TELEGRAM, 
 
 publication of libel l)y, avoids privilege, 151, 283, 284 
 
 THEATRICAL PERFORMANCES, 
 criticism on, permitted, 40, 
 
 THEFT, 
 
 imputations of, Gl, 122 
 
 THING, 
 
 slander of, 137— 14'J 
 libel on, 32—34 
 
 THREATENING 
 
 to publish a libel with intent to extort money, etc., 378, 370 
 a witncsp, or suitor, contempt of court, 430 
 
 TITLE. 
 
 slander of, 137—140 
 
 precedents of pleadings in .actinns of, G34 — 044 
 
 TOWNSHEND 
 
 on Libel and Slander, American treatise, 18 — 21 
 
 TRADE, 
 
 libel of persons in the way of, 21 , 30 — 34, 04 — 81 
 humility of, no obstacle to right of action, 77 
 must be a lawful one, 81 
 
 TRADE PROTECTION SOCIETY, 
 circulars of, not privileged, 213
 
 744 GENERAL INDEX. 
 
 TEADEUS, 
 
 libels on, 31—34 
 
 slander of, 77 — 81, G31 
 
 imputation of fraud aud dishonest}' in trade, 79, SO, 033 
 
 of being a cheat or a rogue, 80 
 
 words affecting the credit and solvency of, 7, 78, 79 
 
 imputations on the goods or commodities of, 32, 33, 79, 137, llo- — 14S 
 
 caution to, not to trust a certain customer, 215, 218 
 
 words affecting partners in trade, 32, 81, 365 — 3G7 
 
 married women traders, 32, 34(1, 349 
 
 a trading company, 32, 3G7 — 3G9 
 that tlic commodities of one trader arc inferior to those of another, 31, 
 
 145—148 
 criticisms on advertisements and circulars of, 34, 50, 51 
 evidence of loss of profits and of business, 314, 315, 319 
 
 TRAVERSES, 481 
 
 TREASON, 
 
 charge of, actionable, 5G 
 
 words cannot amount to overt acts of, 410 
 
 what a sufficient charge of, 121 
 
 TRESPASS 
 
 to land of plaintiff, 83 
 
 to building, 8 
 
 to persons, 9 
 
 imputation of, not actionable, 56 
 
 TRIAL IN CIVIL CASES, 
 notice of, 522 
 entry for, 522 
 
 examination of witnesses before, 526 
 special jmy, 528 
 change of venue, 528 
 
 libel or no libel is a question for the jury, IG, 94. 98, 5i 
 evidence for plaintiff, 530 — 543 
 nonsuit, 5-13 
 
 evidence for defendant, 545 — 549 
 compromise, 550 
 summing up, 550 
 
 the libel itself must be produced at, 535 
 verdict, 551 
 judgment, 552 
 postponement of, 529 
 reports of, 248—257 
 comments on, 44=— 46 
 
 time of giving evidence to rebut justification 
 ai>plication for a new, 556 
 proceedings after, 554, 555
 
 GENERAL INDEX. 745 
 
 TRIAL IN CRIMINAL CASES, 
 
 pleading to the indictment, 57(3 
 
 certiorari, 578 
 
 evidence for the prosecution, 580 
 
 evidence for the defence, 582 
 
 summing-up and verdict, 585 
 
 proceedings after verdict, 585 
 
 sentence, 589 
 
 costs, 590 
 
 of criminal information, 595 
 
 "' TRUGKMASTER," 
 
 charge of being, libellous, 2-1 
 
 TRUSTEES OF A CHARITY, 
 
 words concerning, 29, 370, 377 
 
 TRUTH, 
 
 as a justification in civil proceedings, 1G9 — 178 
 
 why a defence, 179 
 
 as a justification on the trial of an indictment or criminal information, 
 
 178,388—390 
 no justification, unless publication was for public benefit, 390 
 belief in, in mitigation, 302, 589 
 
 U. 
 UNCHASTITY, 
 
 charge of not actionable, 84, 85 
 unsatisfactory state of law as to, 8G, 87 
 
 UNCONSCIOUS PUBLICATION OF A LIBEL, 15-1, 38i— 387, 617 
 
 UNCIVIL WORDS, 
 
 not actionable, 18 
 
 UNDER-SHERIFF, 
 
 on writ of inquiry, has power over costs, 337, 4Gi 
 
 UNFEELING CONDUCT, 
 charge of, libellous, 24 
 
 UNNATURAL OFFENCES, 
 
 charge of, actionable, 56 
 words imputing, 124 
 
 ''USE OF THE LAW," 
 by Bacon, cited, 19 
 
 V. 
 
 VARIANCE 
 
 between words laid and those i^rovcd, amendment of, 471, .j3G, 537, 545 
 
 VENEREAL DISEASE, 
 
 charge of having, actionable, C2, 03 
 
 VENIRE BE NOVO, 588 
 
 3
 
 746 GENERAL INDEX. 
 
 VENUE, 
 
 plaintiff to select, 47^ 
 application to change, 528 
 grounds for changing, 529 
 in indictment, 578 
 
 VERDICT 
 
 in civil case, 551 
 
 against weight of evidence, 557 
 
 in criminal case, 585 
 
 proceedings after, in a civil case, 552 — 561 
 
 in a criminal case, 585 
 cures certain defects, 477, 586 
 
 VESTET MEETINGS, 
 
 reports of proceedings at, 260 
 imputation on parish officers at, 231, 237 
 
 VEXATIOUS INDICTMENTS ACT, 
 
 libel not -within, 571 
 
 VICE, 
 
 words imputing, actionable if written, 21 
 not if spoken, 84—87 
 
 " VILLAIN, INFERNAL," 
 libellous, 22 
 
 VINDICATION 
 
 of defendant's character from attacks, 228, 229, 230 
 
 VINDICTIVE DAMAGES, 
 when allowed, 292 
 
 VOCALISTS, 
 
 libel on, 34 
 
 VOLENTI NON FIT INJURIA, 168, 231 
 
 VOLUNTARY 
 
 affidavit, not a judicial proceeding, 193 
 
 characters of servants given when not asked for, 202 
 
 VOLUNTEERING COMMUNICATIONS 
 in discharge of duty, 213 — 219 
 not evidence of malice where duty clear, 2S6 — 288 
 caution given to a tradesman, 215 
 
 VULGAR ABUSE, 
 
 mere words of, not actionable. 18. 109 
 
 W. 
 WALL, 
 
 libel by writing or drawing upon, 8, 283, 536 
 
 WARRANT OF ARREST. 571
 
 GENERAL INDEX. 747 
 
 "WELCHER," 
 
 not actiouablo, Gl 
 
 "WHORE," 
 
 charge of being, not actionable, 84, 85 
 except in London and Southwark, 59, 85 
 
 WIFE, 
 
 and husband, 345 
 
 claim by husband for words defamatory of wife, 347 
 
 as defendant, 350 
 
 WILL, 
 
 charge of secreting, formerly not actionable, 59 
 
 " WITCH," 
 
 charge of being, formerly actionable, 59 
 
 WITHDRAWING A JUROR, 550 
 
 WITNESS 
 
 cannot be asked how he understood the language published, 110, 538 
 
 privilege of, 191 ' 
 
 commission to examine, before trial, 526 
 
 defendant as a, 534 
 
 proof of previous conviction of, 546 
 
 WOMEN, 
 
 verbal imputations on, 84 — 87 
 
 WORDS, 
 
 action on the case for, 87 — 92 
 
 actionable jpf?' sc, 18 
 
 imputing crime, must be precise, 120 — 12G 
 
 meaning of, how affected by circumstances, 98, 107, 108 
 
 general terms of abuse, not actionable, 18, 109 
 
 must be set out vcrbathii in the Statement of Claim, 101, 470 
 
 clearly defamatory, 105 
 
 2)rivid facie defamatory, 107 
 
 adjective, 126 
 
 ambiguous, 107—116, 539, 548 
 
 ironical, 8, 23, 114, 116, 539 
 
 neutral, 109 
 
 2)rbnd facie innocent, 112 
 
 clearly innocent, 116 
 
 of a cant or slang character, 110, 538 
 
 indirect imputations, 125 
 
 of suspicion, 57 
 
 of inteiTogation, 126, 471, 537 
 
 in foreign language, 470 
 
 application of, to the plaintiff must be shown, 127 — 132, 540
 
 748 GENERAL INDEX. 
 
 WORKMEN, 
 
 action for threatening, 149, 358 
 
 WOKKS OF ART, 
 
 criticisms on, 48, 49 
 
 WRIT, 
 
 considerations before, 449 
 endorsement on, 459 
 service of the, 4G0 
 
 WRIT OF ERROR, 587 
 
 WRIT OF INQUIRY, 4G4, 465 
 
 under-sheriff has power over costs, 337, 464 
 
 I 
 
 THE END. 
 
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 Journal. 
 
 Smith's Law of Contracts.— By the late J. W.SMITH, 
 Esq., Author of " Leading Cases," &c. Seventh Edition. ]5y 
 VINCENT T. THOMPSON, Esq., Barrister-at-Law. Demy 8vo 
 
 1878. 1^- ^4 
 
 " We kiiow of few booko equa'ly likely to benefit tlie student, or marked by such rtia 
 
 tlnpnishtd qualities ol lucidity, order, and accuracy as the work before y\s."—Sulic.Uoi-s 
 
 Journal. 
 
 *,* AU itandard Law Wwka are kept in Stock, in law calf and otlur hindingf.
 
 8 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 CONVICTIONS.— Paley's Law and Practice of Sum- 
 mary Convictions under the Summary Juris- 
 diction Acts, 1848 and 1879; including Proceedings 
 preliminary and subsequent to Convictions, and the responsibility 
 of convicting Magistrates and their Officers, %vith Forms. Sixth 
 Edition. By W. H. jMACNAMAKA, Esq., Barrister-at- Law. 
 Demy 8vo. 1879. 1/. 4s. 
 
 Stone. — Vide " Petty Sessions." 
 Templer. — Vide "Summary Convictions." 
 Wig ram. — Vide "Justice of the Peace." 
 CONVEYANCING.— Dart. — Vide "Vendors and Purchasers." 
 
 Greenwood's Manual of Conveyancing. — A Manual 
 of the Practice of Conveyancing, showing the present Practice 
 relating to the daily routine of Conveyancing in Solicitors' Offices. 
 To which are added Concise Common Forms and Precedents in 
 Convevancing. Sixth Edition, thoroughly revised. By HARRY 
 GREE NWOOD, M. A., Esq., Barrister-at-Law. Author of " Recent 
 Real Property Statutes, consolidated with Notes." Demy 8vo. 1881. 
 
 15s 
 " A careful study of these pages would probably arm a diligent clerk with as mucli 
 iiseful knowledge" as he niiglit otherwise take yeai-s of desultory questioning and 
 observing to acquire." — Solicitors' Journal. 
 
 "The young solicitor will find this work almost invaluable, while the members of 
 the higher branch of the profession may refer to it with advantage. We have not met 
 with any book that f\irnishes so simple a guide to the management of business 
 entrusted to articled clerks." 
 
 Haynes. — Vide " Leading Cases." 
 
 Martin's Student's Conveyancer. — A Manual on the 
 Principles of Modem Conveyancing, illustrated and enforced by a 
 Collection of Precedents, accompanied by detailed Remarks. Part I. 
 Purchase Deeds. By THOMAS FREDERIC MARTIN, Solicitor. 
 Demy 8vo. 1877. 5s. 6d. 
 
 "Should be placed in the hands of every student." 
 
 Palmer's Company Precedents. — For use in relation 
 to Companies subject to the Companies' Acts, 1862 to 1880. 
 Arranged as follows : — Agreements, Memoranda and Articles of 
 Association, Prospectus, Resolutions, Notices, Certificates, Deben- 
 tures, Petitions, Orders, Reconstruction, Amalgamation, Arrange- 
 ments, Private Acts. With Copious Notes. Second Edition. By 
 FRANCIS BEAUFORT PALMER, of the Inner Temple, Esq ., 
 Barrister-at-Law. Royal 8vo. 1881. 1^. 10s. 
 
 OPINIONS OF THE PRESS ON THE FIRST EDITION. 
 " Tliere had never, to our knowledge, been any attempt to collect and edit a body 
 of Forms and Precedents exclusively relating to the formation, working and winding- 
 up of companies. This task Mr. Palmer has taken in hand, and we are glad to say 
 with much success. . . . The information contained in the 650 pages of the volume 
 is rendered easily accessible by a good and full index. The author has evidently not 
 been sparing of "labour, and the fruits of his exertions are now before the legal pro- 
 fession in a work of great practical utility." — Law Magazine. 
 
 " To those concemed in getting up companies, the assistance given by Mr. Palmer 
 must be very valuable, because he does not confine himself to bare precedents, but 
 by intelligent and learned commentary lights up, as it were, each step that he takes. 
 The vohune before us is not, therefore, a book of precedents merely, but, in a greater 
 or less degree, a treatise on certain portions of the Companies' Acts of 1S62 and 1807. 
 There is an elaborate index, and the work is one which must cotnmend itself to the 
 profession." — Law Times. 
 
 "The precedents are, as a rule, exceedingly well drafted, and adapted to companies 
 for almost every conceivable object. So especially are the forms of memoranda and 
 articles of association ; and these will be found extremely serviceable to the con- 
 veyancer. . . . All the notes have been elaborated with a thoroughly scientific 
 knowledge of the princiiiles of company law, as well as with copious references to 
 the cases substantiating the principles. . . . We venture to predict that his notes 
 will be found of great utility in guiding opinions on many complicated questions of 
 law and practice." — Law Journal. 
 *,* A II standard Law Works are kept in Stock, in latv calf and other hindings.
 
 119, CHANCERY LANE, LONDON, W.C. 9 
 
 CONVEVANCING.-C'»'"'"'«<^ 
 
 Prideaux's Precedents in Conveyancing.— With 
 
 Dissertations on its Law and Practice. Ninth Edition. By 
 
 FE-EDEKICK PRIDE AUX, late Prof essor of the Law of Real and 
 
 Personal Property to the Inns of Court, and JOHN WHITCOMBE, 
 
 Esqr8.,Barrister.s-at-Law. 2 vols. Royal 8 vo. 1879. Net,Sl.l()s. 
 
 " We have been always accustomed to view 'Pridca\ix' as the most useful work 
 
 O'lt on conveyancing'. It combines conciseness and clearness in its precedents 
 
 with aptness aiid comprehensiveness in its dissertations and notes, to a degree superior 
 
 to that of any otlicr work of its kind." — Law Journal. 
 
 "Frideaux has beomne an indispensable part of tlie Conveyancer's library 
 
 Tiie new edition has been edited with a care and accuracy nf which we can hardly speak 
 
 too highly The care and corapletoiirss with which the dissertation has 
 
 been revised leaves us hardly any room for CThicism."— Solicitors' Journal. 
 
 " Tlie volumes are now somethiu? more than a mere collection of precedents; they 
 contain most valuable dissf-rtations on the law and practice with reference to convcyanciug. 
 Tbese dissertations are followed by the precedents on each subject dealt w.ih, and are in 
 themselves oondeused treatises, embodying all the latest cases and statute law." — Law Times. 
 
 COPYRIGHT.— Phillips' L.aw of Copyright in Works of 
 Literature and Art, and in the Application of Designs. With 
 the Statutes relating thereto. By C. P. PHILLIPS, Esq., Bar- 
 rister-at-Law. Svo. 1863. 12s. 
 
 CORONERS.— J ervis on the Office and Duties of 
 Coroners. — With Forms and Precedents. Fourth Edition. By 
 R.E.MELSHEIMER, Esq., Barrister- at-Law. PostSvo. 1880. 12s. 
 
 COSTS. — Morgan and Davey's Treatise on Costs in 
 Chancery.— By GEORGE OSBORNE MORGAN, M.P., 
 one of Her Majesty's Counsel, and HORACE DAVEY, M.A., one 
 of Her Majesty's Counsel. 'VVith an Appendix, containing Forms 
 and Precedents of Bills of Costs. Svo. 1865. II. Is. 
 
 Scott's Costs in the High Court of Justice 
 and other Courts. Fourth Edition. By JOHN SCOTT, 
 of the Inner Temple, Es([., Barrister-at-Law, Reporter of the Com- 
 mon Pleas Division. Demy 8vo. 1880. 11. 6s. 
 "Mr. Scott's introductory notes are very useful, and the work is now a compendium 
 
 •n the law and practice regaiding costs, as well as a book of precedents."— Zato Times. 
 "This new edition of Mr. Scott's weU-known work embodies the changes effected 
 
 since the Judicature Acts, and, so far as we have examined it, appears to be accuiate 
 
 and complete."— So/ici^o/'s' Journal. 
 
 Scott's Costs in Bankruptcy and Liquidation 
 under the Bankruptcy Act, 1869. Royal 12mo. 
 1873. iVci, 3s. 
 
 Summerhays and Toogood's Precedents of 
 Bills of Costs in the Chancery, Queen's 
 Bench, Common Pleas, Exchequer, Probate 
 and Divorce Divisions of the High Court of 
 Justice, in Conveyancing, Bankruptcy, the Crown Office, Lunacy, 
 Arbitration under the Lands Clauses Consolidation Act, the Mayor's 
 Court, London ; the County Courts, the Privy Clouncil, and on 
 Passing Residuary and Succession Accounts ; with Scales of Allow- 
 ances and Court Fees, the Law Society's Scale of Commission in 
 Conveyancing ; Forms of Affidavits of Increase, and Objections to 
 Taxation. By Wm. FRANK SUMMERHAYS, Solicitor, and 
 THORNTON TOOGOOD. Third Edition, Enlarged. Royal Svo. 
 
 1879. !?• Is. 
 
 "In the volume before us we have a very complete manual of taxation. The work is 
 
 beautifully printed and arranged, and each item catches the eye instantly."— i««» 
 Journal. 
 
 Webster's Parliamentary Costs. — Private Bills, 
 
 Election Petitions, Appeals, House of Lords. By EDWARD 
 
 WEBSTER, Esq., of the Taxing and Examiners' Office. Third 
 
 Edition. Post Svo. 1867. 20s, 
 
 * * All standard Law Works are kept in Stock, in law calf and other bindivgs. 
 
 A3
 
 10 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 COUNTY COURTS.— Pitt-Lewis' County Court Prac- 
 tice. — A Complete Practice of the County Courts, including Admi- 
 ralty and Bankruptcy, embodying the Acts, Rules, Forms and Costs, 
 with Additional Forms and a FuU Index. By G. PITT-LEWIS, 
 of the Middle Temple and Western Circuit, Esq., Barrister-at-Law, 
 sometime Holder of the Studentship of the Four Inns of Court, 
 assisted by H. A. De Colyar, of the Middle Temple, Esq., 
 Barrister-at-Law. In 2 vols. (2028 pp.). Demy 8vo. 1880. 21. 2s. 
 SujiM.\RY OF Contents. 
 Vol. I. History, Constitution, and Jurisdiction (including Prohibition 
 and Mandamus), Practice in all ordinary Actions (including Actions under 
 the Bills of Exchange Acts, in Ejectment, in Remitted Actions, and in 
 Replevin), and on Appeals, with Appendices, &c. Sold separately, with 
 Index. 30 s. 
 
 "Vol. II. Practice in Admiralty, Probate, Bankruptcy, and under Special 
 Statutes, with Appendices, Index, &c. Sold separately. 25s. 
 
 "The late Lord Chief Justice of England in his written judgment in 
 Stooke V. Taylor, says, ' The law as to the difference between set-off 
 and counter-claim is correctly stated by Mr. Pitt-Lewis, in his very 
 useful work on County Court Practice.' " — See Law Times Reports, 
 October 16, 1880, p. 204. 
 
 " It is very clearly written, and is always practical. ... Is likely 
 to become the standard County Court practice." — Solicitors' Journal. 
 
 " One of the best books of practice which is to be found in our legal 
 literature." — Law Times 
 
 " We have rarely met with a work displaying more honest industry 
 on the part of the author than the one before us." — Laio Journal. 
 
 " Mr. Pitt-Lewis has, in fact, aimed — and we are glad to say success- 
 fully—at providing for the County Courts' practitioner what ' Chitty's 
 Archbold' and ' Daniell's Chancery Practice' have long been to practi- 
 tioners in the High Court." — Laiu Marjazinc. 
 
 CHIMINAL LAW,— Archbold's Pleading and Evidence 
 in Criminal Cases. — With the Statutes, Precedents of 
 Indictments, &c., and the Evidence necessary to support them. 
 Nineteenth Edition, including the Practice in Criminal Proceedings 
 by Indictment. By WILLIAM BRUCE, Esq., Barrister-at-Law, 
 and Stipendiary Magistrate for the Borough of Leeds. Royal 1 2mo. 
 1878. i;. lis. &d. 
 
 Roscoe's Digest of the Law of Evidence in 
 Criminal Cases.— Ninth Edition. By HORACE SMITH, 
 Esq., Barrister-at-Law. Royal 12mo. 1878. IZ. lis. 6rf. 
 
 Russell's Treatise on Crimes and Misdemea- 
 nors.— Fifth Edition. By SAMUEL PRENTICE, Esq., one of 
 Her Majesty's Counsel. 3 vols. Royal 8vo. 1877. 51. 15s. 6rf. 
 " VVhat better Digest of Crimiual Law could we possibly hope for thau 'Kussell ou 
 Crimes ? ' " — Sir James Fitzjames Stephen's Speech on Codification. 
 
 " No move trustworthy authority, or more exhaustive expositor than 'Russell' can be 
 consulted." — Law Magazine and Review. 
 
 " Alteratious have beau made in the arrangement of the work which without interfering 
 vith the general plan are sufficient to show that great care and thought have been 
 
 bestowed We are amazed at the patience, industry and skill which are exhibited 
 
 in the collection and arrangement of all this mass of learning." — The Times. 
 
 Shirley's Sketch of Ihe Criminal Law.— By W 
 
 SHIRLEY SHIRLEY, M.A., Esci-, Barrister-at-Law, Author of 
 
 " Leading Cases made Easy," assisted by C. M. ATKINSON, M.A., 
 
 Esq., Barrister-at-Law. Demy 8vo. 1880. 7s. 6rf. 
 
 " As a primary introduction to Criminal Law, it will be found very acceptable to 
 
 Students." — Law Students' Journal, November 1, I8S0. 
 
 *,* AH standard Law Works are kept in Stock, in law calf and other bindings.
 
 119, CHANCERY LANE, LONDON, W.C. 11 
 
 CROSSED CHEQUES ACT — Cavanagh.— FzWe "Money Securi- 
 ties." 
 W a 1 kei''. — Vide " Banking." 
 
 DECREES.— Seton.— FiV^e " Equity." 
 
 DIARY.— La\Aryer's Companion (The), Diary, and La^A^ 
 Directory for 1881. — For the use of the Legal Profession, 
 Public Companies, Justices, Merchants, Estate Agents, Auctioneers, 
 &c., &c. Edited by JOHN THOMPSON, of the Inner Temple, 
 Esq. , Barrister-at-Law ; and contains a Digest of llecent Cases on 
 Costs ; Monthly Diary of County, Local Government, and Parish 
 Business ; Oaths in Supreme Court ; Summary of Legislation of 
 1880; Alphabetical Index to the Practical Statutes; a Copious 
 Table of Stamp Duties; Legal Time, Interest, Discount, Income, 
 Wages and other Tables; Probate, Legacy and Succession Duties ; 
 and a variety of matters of practical utility. Pdblished Annually. 
 Thirty-fifth Issue. {Noiv ready.) 
 
 The work also contains the most complete List published of Town and 
 
 Country Solicitors, with date of admission and appomtments, and is issued 
 
 in the following forms, octavo size, strongly bound in cloth : — s. d. 
 
 1. Two days on a page, plain 5 
 
 2. The above, interleaved for Attendances . . .70 
 
 3. Two days on a page, ruled, with or without money columns 5 6 
 
 4. The above, interleaved for Attendances . . . .80 
 
 5. Whole page for each day, plain 7 6 
 
 6. The above, interleaved for Attendances . . .96 
 
 7. Whole page for each day, ruled, with or without money 
 
 columns .......... 8 6 
 
 8. The above, interleaved for Attendances . . . 10 6 
 
 9. Three days on a page, ruled blue lines, without money 
 
 columns . . ....... 5 
 
 The Diary contains memoranda of Legal Business throwjhout the Year. 
 
 " An excellent work." -77(« Times. 
 
 " A publication wnich has long ago secured to itself the favour of the profession, nud 
 which, as heretofore, justifies by its ronteiits tlie litle assumed by it." — Laio Joui-nal. 
 
 " rontains aJl the mformation which could be looked tor in such a worli, and gives it 
 in » most convenient form and very completely. We may uuhesitatingly recommeud tlie 
 work to our readers."— S(//ifi(o/'a'' Journal. 
 
 "The' Lawyer's Companion and Uiary' is a book that ought to be lu the possession of 
 every lawyer, and of every man of business." 
 
 "The ' Lawyer's Oumpauion' is, indeed, what it is called, for it combines everything 
 required for reference in the lawyer's office." — Cow Times. 
 
 " It is a book without which no lawyer's library or office can be complete." — Jrish 
 Law 7\m.es. 
 
 " This work has attained to a completeness which is beyond all praise." — Aloiiiing 
 Post. 
 
 DICTIONARY. — Wharton's Law Lexicon.— A Dictionary of 
 
 Jurisprudence, explaining the Technical Words and Phrases employed 
 
 in the several Departments of English Law ; including the various 
 
 Legal Terms used in Commercial Transactions. Together with au 
 
 Explanatory as well as Literal Translation of the l^atin Maxims 
 
 contained in the Writings of the Ancient and Modem Commentators. 
 
 Sixth Edition. Enlarged and revised in accordance with the 
 
 Judicature Acts, by J. SHIRESS WILL, of the Middle Temple, 
 
 Esq., Barrister-at-Law. Super royal 8vo. 1876. 2/. 2s. 
 
 '•As » work of reference tor ihe library, the handsome and elaborate edition cf 
 
 ' Wbarton's Law Lexicon ' which -M r. .Sliiiess Will haw piodiici d must supersede all former 
 
 issues of that well-known wtirk."—Liiw Matiazine and Heview. 
 
 " ^o law library is complete without a law dictionary or law lexicon. To the practi- 
 tioner it 18 always useful to have at hand a book where, in a small compass, he can find 
 an •explanation of terms of inlrcqueut occurrence, or obtain a reference to statutes on 
 most subjects, or to books ft herein particular subjects are treatettof at full length. To the 
 student it ia almost indispensable" — Laiv Tiinet. 
 
 *,* All Standard Law Works are kept in Stock, in law calf and other bindings. 
 
 A 4
 
 12 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 DIGESTS.— Bedford.— FM?e " Examination Guides." 
 Channbers' — Vide " Public Health." 
 
 Chitty's Equity Index. — Chitty's Index to all the Peported 
 Cases, and Statutes, in or relating to the Principles, Pleading, and 
 Practice of Equity and Bankruptcy, in the several Courts of Equity 
 in England and Ireland, the Privy Council, and the House of Lords 
 from the earliest period. Third Edition. By J. MACAULAY, 
 Esq., Barrister-at-Law. 4 vols. Royal 8vo. 1853. 71. 7s. 
 
 Fisher's Digest of the Reported Cases deter- 
 mined in the House of Lords and Privy Council, and in the 
 Courts of Common Law, Divorce, Probate, Admiralty and Bank- 
 ruptcy, from Michaelmas Term, 1756, to Hilary Term, 1870 ; 
 ■with References to the Statutes and Rules of Court. Founded on 
 the Analytical Digest by HariLson, and adapted to the present 
 practice of the Law. By R. A. FISHER, Esq., Judge of the 
 (]!ounty Courts of Bristol and of Wells. Five large volumes, royal 
 Svo. 1870. (Puhlished at 12L 12s.) Net 61. 6s. 
 
 Consolidated Supplement to above, during the 
 years 1870—1880. By T. W. CHITTY and J. MEWS, Esqrs., 
 Barristers-at-Law. 2 vols. Royal Svo. 1880. 31. 3s. 
 
 (Continued Annually.) 
 " Mr. Fisher's Digest is a wonderful work. It is a miracle of human industry." — Mr. 
 Jvslice Willes. 
 
 "I think it would be very difficult to improve upon Mr. Fisher's 'Cominon Law 
 Digest.'" — Sir .lames Fitzjames Stephen, on Codification. 
 
 Godefroi. — Vide '"Trusts and Trustees." 
 Leake. — Vide "Real Property" and "Contracts." 
 Notanda Digest in Law, Equity, Bankruptcy, 
 Admiralty, Divorce, and Probate Cases. — By 
 H. TUDOR BODDAM, of the Inner Temple, and HARRY 
 GREENWOOD, of Lincoln's Inn, Esqrs., Barristers-at-Law. 
 Third Series, 1873 to 1876 inclusive, half-bound. Net, II. lis. M. 
 Ditto, Fourth Series, for the years 1877, 1878, 1879, and 1880, with 
 Index. Each, net, \l. Is. 
 
 Ditto, ditto, for 1881, Plain Copy and Two Indexes, or Adhesive Copy 
 for insertion in Text-Books (without Index). Annual Subscription 
 payable in advance. Net, 21s. 
 
 *j,* The numbers are issued regularly every alternate month. 
 Each number contains a concise analysis of every case reported 
 in the Law Reports, Law Journal, WeiTcly Reportei; Law Times, and 
 the Irish Laio Reports, up to and including the cases contained in the 
 parts for the current month, with references to Text-books, Statutes, 
 and the Law Reports Consolidated Digest, and an alphabetical 
 INL1EX of the subjects contained in each numbee. 
 Odger. — Vide " Libel and Slander." 
 Pollock. — Vide "Partnership." 
 
 Roscoe. — Vide " Criminal Law " and " Nisi Prius." 
 DISCOVERY.— Hare's Treatise on the Discovery of 
 Evidence. — Second Edition. Adapted to the Procedure in the 
 High Court of Justice, with Addenda, containing all the Reported 
 Cases to the end of 1876. By SHERLOCK HARE, Barrister-at- 
 Law. Post 8vo. 1877. 12s. 
 "The booli is a useful contriliution to our text-books ou practice." — Solicitors' Journal. 
 " We hare re;id his work with cunsidtrable attention an t interest, and we can speak in 
 terms of cordiil praise of the manner in which the new procedure ha-« been worked into 
 the old material. . . . AU the sections and orders of tlie new legislation are referred 
 to in the text, a synopsis of recent cases is given, and a good index completes the 
 volume." — Law Times. 
 
 Seton.— Vide "Equity." 
 *^* All standard Law Woiks are kept in Stock, in law calf and other bindi'ins
 
 119, CHANCERY LANE, LONDON, W.C. 13 
 
 DISTRICT REGISTRIES.-Archibald.— Fide "Judges' Chambera 
 Practice." 
 
 DIVORCE.— Browne's Treatise on tlie Principles 
 and Practice of the Court for Divorce and 
 IVTatrimonial Causes:— With the Statutes, Rules, Fees 
 and Forma relating thereto. Fourth Edition. (Including the 
 Additional and Amended Rules, July, 1880.) By GEORGE 
 BROWNE, Esq., Barrister-at-Law. Demy 8vo. 1880. 1/. 4s. 
 
 " The book is a clear, practical, and, so far as we have been able to test it, accurate 
 
 exposition of divorce law and procedure." — Solicitors' Joxi,rnat. 
 Haynes. — Vide " Leading Cases." 
 
 DOMICIL.— Dicey on the Law of Doinicil as a branch 
 of the Law of England, stated In the form of 
 Rules. — By A. V. DICEY, B.C.L., Barrister at- Law. Author 
 of " Rules for the Selection of Parties to an Action." Demy Svo. 
 
 1879. 18s- 
 "The practitioner will find the book a tlioi-oughly exact and trustworthy summary 
 
 of the present state of the law." — The Spectator. 
 
 Philliniore's(SirR.) Law of Donnicil.— 8vo. 1847. 9s. 
 
 EASEMENTS.— Goddard's Treatise on the Law^ of 
 
 Easements.— By JOHN LEYBOURN GODDARD, Esq., 
 
 Barrister-at-Law. Second Edition. Demy Svo. 1877. 16s. 
 
 " The book is invaluable : where the cases are silent the author has taken paius to 
 
 ascertain what the law would be if brought into question."— Zaw Journal. 
 
 "Nowhere h.as the subject been treated so exhaustively, and, we may add, so scientifi- 
 cally, as by Mr. Goddard. We recommend it to the most careful study of the law student, 
 as well as to the library of the practitioner."— iau; Tvnes. 
 
 Innes' Digest of the English Lav/ of Easements. 
 —Second Edition. By Mr. Justice INNES, one of the Judges of 
 Her Majesty's High Court of Judicature, iladras. Crown 8vo. 
 
 1880. 4s. 
 ECCLESIASTICAL LAW.— Dodd's Burial and other 
 
 Church Fees and the Burial Act, 1880 :— With 
 
 Notes. By J. THEODORE DODD, M.A., Banister-at-Law, of 
 
 Lincoln's Inn. Royal 12mo. 1881. 4s. 
 
 Phillimore's (Sir R.) Ecclesiastical Law. — The 
 
 Ecclesiastical Law of the Chm-ch of England. With Supplement, 
 
 containing the Statutes and Decisions to end of 1875. By Sir 
 
 ROBERT PHILLIMORE, D.C.L., Official Principal of the Arches 
 
 Court of Canterbury ; Member of Her Majesty's Most Honourable 
 
 Privy Council. 2 vols. Svo. 1873-76. Zl. 7s. 6d. 
 
 *,* The Supplement may be had separately, price 4s. 6d., sewed. 
 
 ELECTIONS —Browne (G. Lathom.)—Firfe " Registration." 
 
 FitzGerald.— Ft(/e "Ballot." 
 
 Rogers on Elections, Registration, and Election 
 Agency.— Thirteenth Edition, including Petitions and Muni- 
 cipal Elections and Registration. With an Appendix of Statutes 
 and Forms. By JOHN CORRIE CARTER, of the Inner Temple, 
 Esq., and Midland Circuit, Ban-ister-at-Law. 12mo. 1880. 11. 12s. 
 "Petition has been added, setting forth the procedure and the decisions on that 
 subject ; and the statutes passed since tlie last edition are explamed down to the 
 Parliamentary Elections and Corrupt Practices Act {\8St})."— The Timet. 
 
 " We have no hesitation in commending the book to oiu readers as a useful and 
 adequate treatise upon election law."— Soiici/ors'yoMrnaf. - , ,. 
 
 " A book of long standing and for infoi-mation ou the common law of elections, o 
 which it contains a mine of extracts from and references to the older authorities 
 will always be resorted to."— in?'; Jourvcl. 
 ENGLAND, LAWS OF. — Bowvyer.— Vide " Constitutional Law." 
 
 Broom and Hadley. — FitZe " Commentaries." 
 * * All standard Law Works are kept in Slock, in law calf and other bindinys.
 
 14 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 EQUITY, and Vide CHANCERY- 
 
 Seton's Forms ot Decrees, Judgments, «nd 
 Orders in the High Court of Justice andCourts 
 of Appeal, having especial reference to the Chancery Division, 
 with Practical Notes. Fourth Edition. By R. H. LEACH, Esq. 
 Senior Registrar of the Chancery Division ; F. G. A. WILLIAMS 
 of the Inner Temple, Esq. ; and the late H. W. MAY, Esq. ; suc- 
 ceeded by JAMES EAST WICK, of Lincoln's Inn, Esq., Barristers- 
 at-Law. 2 vols, in 3 parts. Royal 8vo. 1877—79. U. 10s. 
 
 *^* Vol. II., Parts 1 and 2, separately, price each \l. 10s. 
 ' The Editors of this new edition of Seton deserve much praise for what is almost, if 
 not absoUitely, an innovation in law books. In treating of any division of their subject 
 they have put prominently forward the result of the latest decisions, setthng the law 
 so far as it is ascertained, thus avoiding much useless reference to older cases. . . . 
 There can be no doubt that in a book of practice like Seton, it is much more important 
 to be able to see at once what the law is than to know how it has become what it is ; 
 and the Editors have evidently taken gi-eat pains to carry out this princiiile in pre- 
 senting the law on each division of their laboars to their readers." — The Times. 
 
 " Of all the editions of ' Seton ' this is the best. ... We can hardly speak too 
 highly of the industry and intelligence which have been bestowed on the preparation 
 of the notes." — Solicitors' Journal. 
 
 " Now the book is befoi-e us complete ; and we advisedly say complete, heca.uss it 
 has scai-cely ever been our fortune to see i more complete law book than this. Exteii- 
 sive in sphere, and exhaustive in treatise, comprehensive in matter, yet apposite in 
 details, it presents all the features of an excellent work . . . Theiudex, exiend- 
 ing over 278 pages, is a model of comprehensiveness and accuracy." — Law Journal. 
 
 Smith's Manual of Equity Jurisprudence.— 
 A Manual of Equity Jurisprudence for Practitioners and Slndents, 
 founded on the Works of Story, Spence, and other writers, and on 
 more than a thousand subseqiient cases, comprising the Fundamental 
 Principles and the points of Equity usually occurring in General 
 Practice. By JOSIAH W. SMITH, B.C.L., Q.C. Thirteenth 
 Edition. 12mo. 1880. 12s. 6d. 
 
 "There is no disgxiisiug the truth ; the proper mode to use this book is to learn its pages 
 by heart." — Law Magazine and Review. 
 
 " It will be found aa useful to tlie practitioner as to the student."— SoHcilors' Journal. 
 
 EXAMINATION GUIDES.— Articled Clerks' Journal and 
 Examiner. Edited by EDWARD HENSLOWE BED- 
 FORD. Monthly, price 6d. Subscription payable in advance, Gs. 
 yicr annum, iiost free. 
 
 Bedford's Guide to the Preliminary Examina- 
 tion for Solicitors.— Fourth Edition. 12mo. 1874. _ Net, 3.s. 
 
 Bedford's Preliminary. — Containing the Questions and 
 Answers of the Preliminary Examinations. Edited by E. H. 
 BEDFORD, Solicitor (No. 15, May, 1871, to No. 48, July, 1879). 
 (Discontinued.) Sewed, net, each, la. 
 
 Bedford's Digest of the Preliminary Examina- 
 tion Questions, with the Answers. Second Edition. 
 
 [In the jtress.) 
 
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 mar.— 12mo. 1872. ^'ct, 3s 
 
 Bedford's Intermediate Examination Guide to 
 Bookkeepina.— Second Edition. 12mo. 1875. Net,2s.Qd. 
 
 Bedford's Student's Guide to the Seventh Edi- 
 tion of Stephen's New Commentaries on the 
 La^A^s of England. Demy 8vo. 1879. 12s. 
 
 " Here is a book which will be of the greatest service to students. It reduces the 
 ' Commentaries ' to the form of question and answer . . . We must .ilso give 
 the author credit, not only for his selection of questions, but for his answers thereto. 
 These are models of fulness and conciseness, and lucky will be the candidate who can 
 hand in a paper of answers bearing a close resemblance to those in the work before 
 us." — Law Journal. 
 
 Bedford's Student's Guide to Smith on Con- 
 tracts. Demy 8vo. 1879. 3». 6d. 
 *^* All standard Law Works are kept in Stoek, in law calf and other bindings.
 
 119, CHANCERY LANE, LONDON, W.C. 15 
 
 EXAMINATION GUIDES.-Co»«ra«f(J . 
 
 Bedford's Final Examination Digest : containing a 
 Digest of the Final Examination Questions in matters of Law and 
 Procedure determined by the Chancery, Queen's Bench, Common 
 Pleas,- and Exchequer Divisions of the High Court of Justice, and 
 on the Law of Real and Personal Property and the Practice of 
 Conveyancing. In 1 vol. 8vo. 1879. 16s. 
 
 " Will furnish students with a large armoury of weapons with which to meet the 
 attacks of the examiners of the Incorporated Law Society."— Zaw Times. 
 
 Bedford's Final Examination Guide to Bank- 
 ruptcy.— Third Edition. 12mo. 1877. 6s. 
 
 Bedford's Outline of an Action in the Chan- 
 cery Division. 12mo. 1878. Net, 2s. Qd. 
 
 Butlin. — Vide " ^Vrticled Clerks." 
 
 Dickson's Analysis of Blackstone's Commen- 
 taries.— In Charts for the use of Students. By FREDERICK 
 S. DICKSON. 4to. 10s. Crf. 
 
 Rubinstein and "Ward.— FlWe "Articled Clerks." 
 
 Shearwood's Student's Guide to the Bar, the 
 
 Solicitor's Intermediate and Final and the 
 
 Universities Law ExaiTiinations.— With Suggestions 
 
 as to the books usually read, and the passages therein to which 
 
 attention should be paid. By JOSEPH A. SHEARWOOD, B.A., 
 
 Esq., Barrister-at-law, Author of " A Concise Abridgment of the 
 
 Law of Real Property," &c. Demy 8vo. 1879. 5s. Qd. 
 
 " Any student of average inlelligence who conscientiously follows the path and obeys the 
 
 instructions given him by the author, need not fear to present himself as a -andidate 
 
 for any of the examinations to which this booli is intended as a guide."— Law Journal. 
 
 EXECUTORS.— Macaskie's Treatise on tlie Law of 
 Executors and Administrators, and of the Adminis- 
 tration of the Estates of Deceased Persons. With an Appendix 
 of Statutes and Forms. By STUART CUNNINGHAM MA- 
 CASKIE, of Gray's Inn, Esq., Barrister-at-Law. Demy 8vo. 1881. 
 ■^ 10s. Qd. 
 
 Williams' Law of Executors and Adminis- 
 trators.— By the Rt. Hon. Sir EDWARD VAUGHAN 
 WILLIAMS, late one of the Judges of Her Majesty's Coart of 
 Common Pleas. Eighth Edition. By WALTER VAUGHAN 
 WILLIAMS and ROLAND VAUGHAN WILLIAMS, Esqrs., 
 Barristers-at-Law. 2 vols. Royal 8vo. 1879. 3Z. 16s. 
 
 " A treatise which occupies a unique position and which is recognised by the 
 
 Bench and the profession as having paramount authority in the domain of law with 
 
 •which it desils."— Law Journal. . i ,> 
 
 EXECUTORY DEVISES.— Fearne.— Fide "Contingent Remainders. 
 
 FACTORY ACTS.— Notcutt's Law relating to Factories 
 and Workshops, with Introduction and Ex- 
 planatory Notes. Second Edition. Comprising the Factory 
 and Workshop Act, 1878, and the Orders of the Secretary of State 
 made thereunder. ByGEO.JARVIS NOTCUTT, Solicitor, formerly 
 of the Middle Temple, Esq., Barrinter-at-Law. 12mo. 1879. 9s. 
 "The task of elucidating the provisions of the statute is done in a manner that 
 
 'eaves nothing to be desired."— Birmi7igham Daily Gazette. 
 
 FARM, LAW OF.— Addison ; Cook.e.— Vide "Agricultural Law. 
 Dixon's Law of the Farm.— A Digest of Cases connected 
 ■with the Law of i he Farm, and including the Agricultural Customs of 
 England and Wales. Fourth Edition. (Including the "Ground Game 
 Act, 1880.'") By HENRY PERKINS, Esq., Banister-at-Law and 
 Midland Circuit. Demy 8vo. 1879. 1^. 6s. 
 
 " It is impossible not to bo struck with the extraordinary research that must have been 
 
 used in the compilation of such a book as this."— ^oio yournaJ. ,. j. 
 
 • * All Standard La^v Works are kept in Stock, in law calf and other bindings.
 
 16 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 FINAL EXAMINATION DIGEST.-Bedford.— FwZe " Examination 
 
 Guides." 
 Fixtures. -Amos and Ferard on Fixtures.- Second 
 
 Edition. Royal 8vo. 1847. 16«. 
 
 FOREIGN JUDGMENTS.— Piggott's Foreign Judginents, 
 
 their effect in the English Courts, the English 
 
 Doctrine, Defences, Judgnients in Rem, 
 
 Status.— 15y F. T. PIGGOTT, M.A., LL.M., of the Middle 
 
 Temple, Esq., Barrister-at-Law. Eoyal 8vo. 1879. 15s. 
 
 " A useful and well-timed volume." — Law Magazine, August, 1h79. 
 
 "Mr. Piggott writes under strong conviction, bnt he is always caieful to rest his 
 
 arguments on authority, and thereby adds considerably to the value of his handy volume." 
 
 Law Maf/azine and Review, November, 1879. 
 
 FORMS . — A re h i b a 1 d . — Vide ■" Judges' Chambers Practice." 
 
 Chitty's Forms of Practical Proceedings in 
 the Queen's Bench, Conimon Pleas and Ex- 
 chequer Divisions of the High Court of Jus- 
 tice: with Notes containing the Stututes, Rules and Practice 
 relatina; thereto. Eleventh Edition, By THOS. WILLES 
 CHITTY, Esq. Demy 8vo. 1879. \l. 18s. 
 
 Daniell's Forms and Precedents of Proceed- 
 ings in the Chancery Division o/ the High 
 Court of Justice and on Appeal 'therefrom ; 
 with Dissertations and Notes, forming a complete guide to the 
 Practice of the Chancery Division of the High Court and of the 
 Courts of Appeal. Being the Third Edition of " Daniell's Chancery 
 Forms." By WILLIAM HENRY UPJOHN, Esq., Student and 
 Holt Scholar of Gray's Inn, &c., &c. Demy 8vo. 1879. 11. Is. 
 
 " Mr. Upjohn has restored the volume of Cliancery Forms to the place it held before 
 the recent changes, as a trustworthy and complete collection of precedents." — Solicitors' 
 Journal. 
 
 " We have had this work in practical use for some weeks, and so careful is the noting 
 up of the authorities, so cloarly and concisely are tbe notes expres:ie(i, that we have found 
 it of as much value as the ordinary text books on tbe Judicature Acts. It will be as use- 
 ful a work to practitioners at Westminster as it will be to those in Lincoln s Inn." — Law 
 Times. 
 
 FRENCH COMMERCIAL LAW.-Goirand.-rtrfc"CommercialLaw." 
 
 HIGHWAYS.-Baker's Law of Highways in England 
 
 and Wales, including Bridges and Locomotives. Comprising 
 
 a succinct code of the several provisions imder each head, the 
 
 statutes at length in an Appendix ; with Notes of Cases, Forms, 
 
 and copious Index. By THOMAS BAKER, of the Inner Temple, 
 
 Esq., Barrister-at-Law. Royal 12mo. 1880. 15s. 
 
 "Tliis is distinctly a well -planned book, and cannot fail to be useful, not only to 
 
 awj'ers, but to tlio.se who may be locally engaged in the managenaent of highways." — 
 
 Law Journal. 
 
 " The general plan of Jlr. Baker's liook is good. He groups together condensed 
 statements of the effect of the iirovisions of the diffei-ent Highway .\cts relating to 
 the same matter, giving in all cases references to the sections, which are printed in 
 full in the appendix. To each condensed section, or group of sections, he appends a 
 note, stating concisely the effect of the decisions." — Solicitors' Journal, Xovember 13/A 
 18S0.' 
 
 " The work is clear, concise, and con-ect." — Laic Times, Od. 2, ISSO. 
 
 Chambers' Law relating to Highways and 
 Bridges, being the Statutes in full and brief Notes of 700 
 Leading Cases; together with the liighting Act, 1833. By GEO. 
 F. CHAMBERS, Esq., Barrister-at-Law. Imperial 8vo. 1878. 1 8s. 
 Shelford's Law of Highways, including the General 
 Highway Acts for England and Wales, and other Statutes, with 
 copious Notes and Forms. Third Edition. With Supplement by C. 
 MANLEY SMITH, Esq. 12mo. 1865. 15.<f. 
 
 * * All standard Law Works are kept in Stock, in law calf and other bindings.
 
 119, CHANCERY^ ANE,j:.ONDON, W.C. 17 
 
 INCLOSURES.— Ficie "Commons." 
 
 INDIAN LAW Norton's Leading Cases on the Hindu 
 
 Law of Inheritance.— 2 vols. Royal 8vo. 1870-71. 
 
 Net, 21. 10s. 
 
 INJUNCTIONS.— Seton.— ntZe " Equity." 
 
 INSURANCE.— Arnould on the Law of Marine Insu- 
 rance.— Fifth Edition. By DAVID MACLACHLAN, Esq., 
 Barrister-at-Law. 2 vols. Royal 8vo. 1877. 3^. 
 
 " As a text book, ' Aruould ' is now all the practitioner can want, and we congratulate 
 
 the editor upon the skill with which he has incorporated the new decisious."— Mifl Timet. 
 
 Hopkins' Manual of Marine Insurance.— 8vo. 
 
 1867. 18s. 
 
 Lowndes on the Law of Marine Insurance. — 
 A Practical Treatise. By RICHARD LOWNDKS. Author of 
 " The Law of General Average," &c. Demy 8vo. 1881. 10s. 6c/. 
 NTERNATIONAL LAW- — Amos' Lectures on Inter- 
 national La^A'■. — Delivered in the Middle Temple Hall to the 
 Students of the Inns of Court, by SHELDON AMOS, M.A., Pro- 
 fessor of Jurisprudence (including International Law) to the Inns 
 of Com-t, &c. Royal 8vo. 187ri. 10s. 6d. 
 
 Calvo's Le Droit International Theorique et 
 Pratique Precede d'un Expose Historique 
 des Progres de la Science du Droit des Gens. 
 Troisifeme Edition. Par M. CHARLES CALVO. In three volumes. 
 Royal 8vo. Vol. L 1S80. Net, 15s. 
 
 Dicey. — Vide "DomicU." 
 
 Kent's International La^A^. — Kent's Commentary on 
 
 International Law. Edited by J. T. ABDY, LL.D., Judge of 
 
 County Courts. Second Edition. Revised and brought down to 
 
 the present time. Crown 8vo. 1878. 10s. 6d. 
 
 " Altogether Dr. Abdy has performed his task in a manner worthy of his reputation. 
 
 His book will be useful not only to Lawyers and L.aw Students, for whom it was primarily 
 
 ntended, out also for laymen." — Solidiurs' Journal. 
 
 Levi's International Cominercial Law. — Being the 
 
 Principles of Mercantile Law of the following and other Countries 
 
 — viz. : England, Ireland, Scotland, British India, British Colonies, 
 
 Austria, Belgium, Brazil, Buenos Ayres, Denmark, France, Germany, 
 
 Greece, Hans Towms, Italy, Netherlands, Norway, Portugal, Prussia, 
 
 Russia, Spain, Sweden, Switzerland, United States, and Wiirtemberg. 
 
 By LEONE LEVI, Esq., F.S.A., F.S.S., Barrister-at-Law, &c. 
 
 Second Edition. 2 vols. Royal 8vo. 1863. 1?. 15». 
 
 Vattei's Law of Nations.— By JOSEPH CHITTY, Esq. 
 
 Royal 8vo. 1834. 1^. 1«. 
 
 Wheaton's Elements of International Law; 
 
 Second English Edition. Edited with Notes and Appendix of 
 
 Statutes and Treaties, bringing the work down to the present time. 
 
 By A. C. BOYD, Esq., LL.B., J. P., Barrister-at-Law. Author of 
 
 " The Merchant Shipping Laws." Demy 8vo. 1880. IZ. 10s. 
 
 " Mr. Boyd, the latest editor, has added many useful notes ; he has inserted in the 
 
 Appendix public documents of permanent value, and there is the prospect that, as edited 
 
 by Mr. Boyd, Mr. Wheaton's volume will enter on a new lease of life."— T/te Tims. 
 
 " Both the plan and execution of the work before us dese ves cotcmendation. . 
 
 Tbe test of Wheaton is presented without alteration, and Mr. Dana's numbering of the 
 
 sections is preserved. Mr. Boyd's noes, which are numerous, original, and copirtus, are 
 
 conveniently intwrspcrsed ihrousjbout the text ; but they are in a distinct tyue, and 
 
 therefore the reader always know* whether he is reading Wheaton or Boyd. The 
 
 Index, which could not have been compile! without much thought au'i labour makes the 
 
 book handy for reference."— iaui Journal. 
 
 " Students who require a knowledge of Wheaton's text will find Mr. Boyd's volume 
 very convenient." — Law Magazine. 
 
 JOINT OWNERSHIP.-Foster.— Fide "Real Estate." 
 
 *,* All standard Law Works are kept in Stock, in law calf and other I'lndvngs.
 
 18 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 JOINT STOCKS. — Palmer. — Vide " Conveyanciug " and "Company 
 Law." 
 Thring's (Sir H.) Joint Stock Companies' Law.— 
 The Law and Practice of Joint Stock and other Companies, including 
 the Companies Acts, 1862 to 1880, with Notes, Orders, and Rules in 
 Chancery, a Collection of Precedents of Memoranda and Articles of 
 Association, and all the other Forms required in INIaking, A dminister- 
 ing, and Winding-up a Company ; also the Partnership Law Amend- 
 ment Act, The Life Assurance Companies Acts, and other Acts 
 relating to Companies. By Sir HENKY THRING, K.C.B., The 
 Parliamentary Counsel. Fourth Edition. By G. A. R. FITZ- 
 GERALD, Esq., M.A., Barrister-at- Law, and late Fellow of St. 
 John's CoUege, Oxford. Demy Svo. 1880. II. 5s. 
 
 "This, as the work of the original diaughtsMian of the Corapanifs' Act of 1862, and 
 well-kuown Parliamentary counsfil, Sir Henry Thrin^ is naturally the highest authority 
 on the subject." — Tlie Times. 
 
 " One of its most valuable features is its collection of precedents of Memoranda and 
 Articles of Association, wliicli has, in this Edition, been largely increitssd and im- 
 proved." — Law Journal, October 30, 1880. 
 
 Jordan's Joint Stock. Companies. — A Handy Book of 
 
 Practical Instructions for the Formation and Management of Joint 
 
 Stock Companies. Sixth Edition. 12mo. 1878. Net, Is. 6rf. 
 
 JUDGES' CHAMBERS PRACTICE.— Archibald's Forms of 
 
 Summonses and Orders, with Notes for use at Judges' 
 Chambers and in the District Registries. By W. F, A. ARCHI- 
 BALD, M.A., of the Inner Temple, Barrister-at-Law. Royal 12mo. 
 
 1879. 12s. 6rf. 
 " The work is done most thoroughlj' and yet concisely. The practitioner will find 
 
 plain directions how to proceed in all the matters connected with a common law 
 action, interpleader, attachment of debts, mandamus, injunction — indeed, the whole 
 jurisdiction of the common law divisions, in the district registries, and at Judges' 
 chambers." — Law Times. 
 
 " A clear and well-digested tKide tr.ecum, which will no doubt be widely used by the 
 profession.'' — Law Magaziru. 
 JUDGMENTS. — Piggott. — Vide '"Foreign Judgments." 
 
 Walker's Practice on Signing Judgment in 
 
 the High Court of Justice. With Forms. By H. H. 
 
 WALKER, Esq., of the Judgment Department, Exchequer Division. 
 
 Crown 8vo. 1879. 4s. Qd. 
 
 "The book undoubtedly meets a want, and furnishes inforiuatiou available for almost 
 
 every branch of practice." 
 
 " We think that sulicitors and their clerks will find it extremely useful." — Lav Journal. 
 
 JUDICATURE ACTS.— Ilbert's Supreme Court of Judi- 
 cature (Officers) Act, 1879 ; with the Rules of Court and 
 Forms, December, 1879, and April, 1880. With Notes. By 
 COURTENAY P. ILBERT, Esq., Barrister-at-Law. Royal 12mo. 
 
 1880. (In limp leather, 9s. Qd.) 6s. 
 *^* A LARGE PAPER EDITION (for marginal notes). Royal Svo. 8s. 
 
 The above forms a Supplement to " II'(7so»i's Judicature Acts." 
 Morgan. — Vide "Chancery." 
 
 Stephen's Judicature Acts 1873, 1874, and 1873, 
 
 consolidated. With Notes and an Index. By Sir JAMES 
 
 FITZJAMES STEPHEN, one of Her Majesty's Judges. 12mo. 
 
 1875. 4s. 6d. 
 
 Swain's Complete Index to the Rules of the 
 
 Supreme Court, April, 1880, and to the Forms (uniform 
 
 with the Official Rules and Forms). By EDWARD SWAIN. 
 
 Imperial 8vo. 1880. Net, Is. 
 
 "An almost indispensable addition to the recently issued rules." — Solicitors' 
 
 Journal, May 1, 1880. 
 
 *^* All standard Law Works are kept in Stock, in law calf and other binding*.
 
 119, CHANCERY LANE, LONDON, W.C. 19 
 
 JUDICATURE ^C^S.-Continued. 
 
 Wilson's Supreme Court of Judicature Acts 
 Appellate Jurisdiction Act, 1876, Rules of 
 Court and Forms. With other Acts, Orders, Rules and 
 Regulations relating to the Supreme Court of Justice. With 
 Practical Notes and a Copious Index, forming a Complete Guide 
 TO THE New Practice. Second Edition. By ARTHUR WIL- 
 SON, of the Inner Temple, Barrister-at-Law. (Assisted by 
 HARRY GREENWOOD, of Lincoln's Inn, Barrister-at-Law, 
 and JOHN BIDDLE, of the Master of the Rolls Chambers.) 
 Royal r2mo. 1878. {pp. 726.) 18s. 
 
 {In limp leather for the pocket, 22s. Qd.) 
 *,* A LARGE PAPER EDITION OF THE ABOVE (for marginal notes). Royal 8vo, 
 1878. {In limp leather or calf, 30s.) U. 5s. 
 
 " As regards Mr. Wilson's notes, we can only say that they are indispensable to the 
 proper understanding of the new system of procedure. They treat the principles upon 
 which the alterations are based with a clearness and breadth of view which have never 
 been equalled or even approached by any other commentator."— SoZtaYor*' Journal. 
 " Mr. Wilson has bestowed upon this edition an amount of industry and care which 
 
 the Bench aud the Profession will, we are sure, gratefully acknowledge -A 
 
 conspicuous aud important feature in this secmd edition is a table of cases prepared by 
 Mr Biddle, in which not only are cases given with references to two or three reports, but 
 
 every place in which the cases are reported. Wilson's ' Judicature Acts 
 
 is now the latest, and wo think It is the most convenient of the works of the same class. 
 The practitioner will find that it supplies all his wants."— iaw Timei. 
 
 JURISPRUDENCE.— Phillimore's (J. G.) Jurisprudence.— 
 
 An Inaugural Lecture on Jurisprudence, and a Lecture on Canon 
 
 Law, delivered at the Hall of the Inner Temple, Hil.-iry Term, 1851. 
 
 By J. G. PHILLIMORE, Esq., Q.C. 8vo. 1851. Sewed. 3s. 6d. 
 
 Piggott. — Vide " Foreign Judgments." 
 
 JUSTINIAN, INSTITUTES OF.-Cumin.— FicZc "CivU Law." 
 
 Ruegg's Student's " Auxilium" to the Institutes 
 
 of Justinian. — Being a complete synopsis thereof in the form 
 
 of Question and Answer. By ALFRED HENRY RUEGG, of the 
 
 Middle Temple, Barrister-at-Law. Post Svo. 1879. 5s. 
 
 " The student will be greatly assisted in clearing and arranging his knowledge by a 
 
 vpork of this kind."— Laic Journal. 
 
 JUSTICE OF THE PEACE.— Burn's Justice of the Peace 
 and Parish Officer.— Edited under the Superintendence 
 of JOHN BLOSSETT MAULE, Esq., Q.C. The Thirtieth Edition. 
 Vol. I., containing "Abatement" to " Dwellings for Artisans." Vol. 
 II., "Easter Offering" to "Hundred." Vol. III., "Indictment" 
 to "Promissory Notes." Vol. IV., "Poor." Vol. V., "Quo 
 Warranto" to "Wreck." Five large vols. Svo. 1869. (Published 
 at 11. 7s.) ^«^ 2i. 2s. 
 
 Paley. — Vide "Convictions." 
 
 Stone's Practice for Justices of the Peace, Justices' 
 Clerks and Solicitors at Petty and Special Sessions. With Forms. 
 Ninth Edition. {In preparation.) 
 
 Wigram's The Justices' Note Book. With a copious 
 Index. ByW. KNOX WIGRAM, Esq., Barrister-at-Law, J.P. 
 Middlesex. Second Edition. {Corrected to D€cemher,\%?)0.) Royal 
 
 12mo. 1881. 12«- «''• 
 
 "We have nothing but praise for the book, which is a justices royal road to knowledge, 
 
 and ought to lead them to a more accurate acquaintance with their duties than many ot 
 
 them have hitherto possessed."— .S'o<iC!toi-i' youcnai. 
 
 " This is altogether a capital book. Mr. Wigram is a good lawyer and a good 
 
 justices' lawyer. "-i«!»/OMrnaf. . , x .. r m- 
 
 " We can thoroughly recoinniend the volume to magistrates. —Law Imitt. 
 
 * * All standa/rd Law Works are kcfjt in Hlock, in law calf and oilier hindinga.
 
 20 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 LAND TAX. — Bourdin's Land Tax. — An Exposition of the 
 Land Tax ; its Assessment and Collection, with a statement of the 
 rights conferred by the Redemption Acts. By MARK A. BOUR- 
 DIN, of the Inland Revenue Office, Somerset House (late Registrar 
 of Land Tax"). Second Edition. Crown 8vo. 1870. 4s. 
 
 LANDLORD AND TENANT.— Woodfall's Law of Landlord 
 and Tenant. — A Practical Treatise on the Law of Landlord 
 and Tenant. With a full Collection ot Precedents and Formg of 
 Procedure. Twelfth Edition. Containing an Abstract of Leading 
 Propositions, and Tables of certain Customs of the Country. By 
 J. M. LELY, Esq., Barrister-at-Law. Royal 8vo. 1881. IL 18s. 
 " The editor has expemled elaborate iudustry and systematic ability in making the 
 
 work as perfect as possible." — Solicitors' Journal. 
 
 LANDS CLAUSES ACTS— Jepson's Lands Clauses Con- 
 solidation Acts; with Decisions, Forms, & Table of Costs. By 
 ARTHUR JEPSON, Esq., Barrister-at-Law. Demy 8vo. 1880. 18s 
 " The work concludes with a number of forms and a remarkably good index." — 
 
 Law Times. 
 
 " As far as we have been able to discover, all the decisions have been stated, and 
 
 the effect of them correctly given." — Law Journal. 
 
 " We have not observed any omissions of cases of importance, and the purport 
 
 of the decisions we have examined is fairly well stated. The costs under the Acts 
 
 are given, and the book contains a large number of forms, which will be found 
 
 useful." — Solicitoi-s' Journal, October 1'ird, IKSO. 
 " (-'annot fail to prove of great utilitv to the practitioner." — Law Magazine, Nov. 1880. 
 
 LAW, GUIDE TO.— A Guide to the Law: for General Use. 
 By a Barrister. Twenty-third Edition. Crown 8vo. 1880. Net,Zs.M. 
 " Within a marvellously small compass the author has condensed the main provi- 
 sions of the law of England, ajiijlicable to almost every transaction, matter, or tiling 
 
 incidental to the relations between one individual and another." 
 
 LAW LIST. — Law List (The). — Comprising the Judges and Officers 
 the different Courts of Justice, Counsel, Special Pleaders, 
 Draftsmen, Conveyancers, Solicitors, Notaries, &c., in England 
 and Wales ; the Circuits, Judges, Treasurers, Registrars, and High 
 BaUiffs of the County Courts ; ^letropoUtan and Stipendiary 
 Magistrates, Law and Public Officers in England and the Colonies, 
 Foreign Lawyers with their English Agents, Sheriffs, Under-SherifFs, 
 and their Deputies, Clerks of the Peace, Town Clerks, Coroners, &c., 
 &c., and Commissioners for taking C>aths, Conveyancers Practising 
 in England under Certificates obtained in Scotland. So far as 
 relates to Special Pleaders, Draftsmen, Conveyancers, Solicitors, 
 Proctors and Notaries. Compiled by WILLIAM HENRY 
 COUSINS, of the Inland Revenue Office, Somerset House, 
 Registrar of Stamped Certificates, and of Joint Stock Companies, 
 and Published by the Authority of the Comnii-sioners of Inland 
 Revenue. 1880. {Net cash, Qs.) 10s. 6o. 
 
 LAW REPORTS. — A large Stock of second-hand Reports. Prices 
 on application. 
 
 LAWYER'S COMPANION.— Fi(/e "Diary." 
 
 LEADING CASES.— Haynes' Student's Leading Cases. 
 Being some of the Principal Decisions of the Courts in Constitutional 
 Law, Common Law, Conveyancing and E(|uity, Probate, Divorce, 
 Bankruptcy, and Criminal Law. With Notes for tlie tise of Students. 
 By JOHN F. HAYNES, LL.D., Author of "The Practice of the 
 Chancery Division of the High Court of Justice," "The Student's 
 Statutes," &c. Demy 8vo. 1878. 16s. 
 
 "We consider Mr. Haynes' book to be one of a very praiseworthy class ; and we may 
 
 gay also that its editor appears to be a competent man. He can express himself with 
 
 clearness, precision, and terseness." — Solicitois' Journal. 
 
 I " Will prove of great utility, not only to Students, but Practitioners. The Notes are 
 
 clei-r, pointed and concise."— Zaw limes. 
 " We think that this liook will supply a want .... the book is singularly we 
 
 arranged for reference." — Law Journal. 
 
 *,* All standard Law W(yrks are kept in Stock, in law calf and otlur bindinys
 
 119, CHANCERY LANE, LONDON, W.C. 21 
 
 LEADING C^SES-Coniinu€d, 
 
 Shirley's Leading Cases made Easy. A Selection 
 of Leading Cases in the Common Law. By W. SHIRLEY SHIR- 
 LEY, M.A., Esq., Barrister-at-Law, North-Eastern Circuit. Demy 
 8vo.. 1880. 14«. 
 
 " The selection is very large, tliougli all are distinctly 'leading cases,' and tbe notes 
 are liy no moans the least meritorious part of the work." — Law Journal. 
 
 '' Mr. Shirley writes well and clearly, and evidently understands what he is writing 
 about." — Law Timet. 
 
 LEGACY DUTIES.— Ficfe "Taxes on Succession." 
 LEXICON.— FicZe "Dictionary." 
 
 LIBEL AND SLANOER.-Odgers on Libel and Slander.— 
 
 A Digest of the liaw of Libel and Slander, with the Evidence, Pro- 
 cedure and Practice, both in Civil and Criminal Cases, with 
 Precedents of Pleadings. By W. BLAKE ODGERS, M. A., LL.D., 
 
 Barrister-at-Law, of the Western Circuit. Demy 8vo. [Nearly ready.) 
 
 LIBRARIES AND MUSEUMS.— Chambers' Public Libraries 
 and Museums and Literary and Scientific 
 Institutions generally, a Digest of the Law 
 relatmg to. Second Edition. By G. F. CHAMBERS, of the 
 Inner Temple, Barrister-at-Law. Imperial 8 vo. 1879. %s. Qd. 
 
 LICENSING.— Lely and Foulkes' Licensing Acts, 
 1828, 1869 1872, and 1874; Containing the Law of the 
 Sale of Liquors by Retail and the Management of Licensed Houses ; 
 with Notes to the Acts, a Summary of the Law, and an Appendix 
 of Forms. Second Edition. By J. M. LELY and W. D. I. 
 FOULKES, Esqrs., Barristers-at-Law. Royal 12mo. 1874. 8s. 
 " The notes are sensible and to the point, and give evidence both of care and know- 
 ledge of the subject." — Solicitors' Journal. 
 
 LIENS.— Cavanagh. — Vide "Money Securities." 
 
 LIFE ASSURANCE.— Scratchley"s Decisions in Life As- 
 surance Law, collated alphabetically according to the point 
 involved ; with the Statutes. Revised Edition. By ARTHUR 
 SCRATCHLEY, M.A., Barrister-at-Law. Demy Svo. 1878. 5s. 
 
 LOCKE KING'S ACTS.— Cavanagh.— Firfe "Money Securities." 
 
 LUNACY,— Elmer's Practice in Lunacy. — The Practice in 
 Lunacy under Commissions and Inquisitions, with Notes of Cases 
 and Recent Decisions, the Statutes and General Orders, Forms and 
 Costs of Proceedings in Lunacy, an Index and Schedule of Cases. 
 Sixth Edition. By JOSEPH ELMER, of the Office of the 
 Masters in Lunacy. Svo. 1877. 21a. 
 
 MAGISTERIAL LAW.— Burn.— Firfc " Justice of the Peace." 
 
 Leeming& Cross. — Pritchard. — Ficic "Quarter Sessions. 
 Wig rani. — Vide "Justice of the Peace." 
 MARINE INSURANCE.— Fide "Insurance.' 
 
 MARITI !VIE COLLISION.— Lowndes.— Marsden.— ]'(c/c "Col- 
 lision." 
 MAYOR'S COURT PRACTICE.— Candy's Mayor's Court 
 Practice.— The Jurisdiction, Process, Practice, and Mode of Plead- 
 ing in Ordinary Actions in the Mayor's Court, I^ondon (comnnmly called 
 the " Lord Mayor's Court " ). Founded on Brandon. By GEORGE 
 CANDY, Esq., Barrister-at-Law. Demy Svo. 1879. 14s. 
 
 "ThH 'oriiiuary' practice of tbe Court is dealt with in its natural order, and is 
 simiily and clearly stated." — Law Journal. 
 * * AU standard Law Works wrekept in Stock^in law calf and other Undings.
 
 22 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 MERCANTILE LAW— Boyd.— Fific "Shipping," 
 Russell. — Ftrfe "Agency." 
 
 Smith's Compendium of Mercantile Law. — Ninth 
 
 Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq., 
 
 one of Her Majesty's Counsel. Royal 8vo. 1877. IL 18s. 
 
 " We can safely say that, to the practising Solicitor, few bo^ks will be found more 
 
 useful than the ninth edition of ' Smith's Mercantile Lnw.'"— Law Magazine. 
 
 Tudor's Selection of Leading Cases on Mercan- 
 tile and Maritime Law.— With Notes. By O.D.TUDOR, 
 Esq.. Barrister-at-Ijaw. Second Edition. Royal Svo. 1868. li. 18s. 
 
 METROPOLIS BUILDING ACTS— Woolrych's Metropolis 
 Building Acts, with Notes, Explanatory of the Sections and 
 of the Architectural Terms contained therein. Second Edition. By 
 NOEL H. PATERSON, M.A., Esq., Barrister-at-Law. 12mo. 
 1877. 8s. ed. 
 
 IV.INES, —Rogers' Law relating to Mines, Minerals, 
 and Quarries in Great Britain and Ireland; 
 with a Summary of the Laws of Foreign States, &c. Second 
 Edition Enlarged. By ARUNDEL ROGERS, Esq., Judge of 
 County Courts. Svo. 1876. II. lis. 6d. 
 
 " The volume will prove invaluable as a vrork of legal reference." — The Miniii/t Journal. 
 
 MONEY SECURITIES Cavanagh's Law of Money Secu- 
 rities. — In Three Books. I. Personal Securities. II. Securities 
 on Property. III. Jliscellaneous; with an Appendix containing the 
 Crossed Cheques Act, 1876, The Factors Acts, 1823 to 1877. Locke 
 King's, and its Amending Acts, and the Bills of Sale Act, 1878. By 
 CHRISTOPHER CAVANAGH,B.A.,LL.B. (Lond.), of the Middle 
 Temple, Esq., Barrister-at-Law. In 1 vol. Demy Svo. 1879. 21s. 
 " An admirable syi].i).sis of the whole law and practice with regard to securities 
 
 of every sort We desire to accord it all praise for its completeness 
 
 and general accuracy ; we can honestly say there is not a slovenly sentence from 
 beginning to end of it, or a single case omitted which has any material bearing on 
 the subject." — Saturday Jieview. 
 
 " Wo know of uo work which embraces so much that is of cvery-day importance, nor 
 do we know of anv author who shows more fan iliavity with his subject. The book is 
 one which we shall certainly keep near at hai d, and we believe that it will prove a 
 decided acquisition to tne practitioner."— i'/w Times. 
 
 "The author has the gift of a pleasant style; there are .abundant and correct 
 references to decisions of a recent date. An appendix, in which is embodied the 
 full text of several important statutes, adds lo the utility of the work as a book of 
 reference ; and there is a good index." — Solicitors' Journal. 
 
 MORTGAGE Coote's Treatise on the Law of Mort- 
 gage. — Fourth Edition. Thoroughly revised. By WILLIAM 
 WYLLYS MACKESON, Esq., one of Her Majesty's Counsel. 
 In 1 Vol. (H36 pp.) Royal Svo. 1880. 2?. 2s. 
 
 " The book will be found a very valuable addition to the practitioner's library. . 
 . . . Jlr. Jlackeson may be congratulated on the success with which he h.os con- 
 verted an old and rather long-winded test-book into a complete, terse, and pi-actical 
 treatise for the modern lawyer." — Solicitors' Journal, January 1, 1881. 
 
 MORTMAIN.— Rawiinson's Notes on the Mortmain 
 Acts ; shewing their operation on Gifts, Devises and Bequests for 
 Charitable Uses. By JAMES RAWLINSON, Solicitor. Demy Svo. 
 1877. Interleaved Net, 2s. 6d. 
 
 NAVY. — Thring's Criminal Law of the Navy, with an 
 Introductory Chapter on the Early State and Discipline of the Navy, 
 the Rules of Evidence, and an Appendix comprising the Naval 
 Discipline Act and Practical Forms. Second Edition. By 
 THEODORE TURING, of the Middle Temple, Barrister-at-Law, 
 late Commissioner of Bankruptcy at Liverpool, and C. E. GIFFORD, 
 Assistant-Paymaster, Royal Nav-y. 12mo. 1877. 12s. 6d. 
 
 "In the new edition, the procedure, naval regulations, forinsi, and all matters con- 
 nected with the practical adrniuistration ot the law have be-'u classifie 1 and arranged by 
 Mr. GiSord, so ihat, me work is iu every way useful, complete, and up to date." — Naval 
 and Military Gazette. 
 *^* All standard Law Works are l-ept in Stock, in law calf and other bindings.
 
 119, CHANCERY LANE, LONDON, W.C. 23 
 
 NEGLIGENCE — Smith's Treatise on the Law of 
 Negligence, with a Supplement containing "The Employers' 
 Liability Act, 1880," with an Introduction and Notes. By HORACE 
 SMITH, B.A., of the Inner Temple, Esq., Barrister-at-Law, Editor 
 of "Roscoe'a Criminal Evidence," &c. Demy 8vo. 1880. 10s. 6d. 
 "The author occasionally attempts to criticize, as well as to catalogue, decisions, 
 thus really helping lawyers, who rarely consult law books, except when some ques- 
 tion demanding a consideration of conflicting authorities has to bo settled." — The 
 Times, September 8, 18S0. 
 
 "The author has perfoi-med his task with judgment and skill. . . . A good 
 index is very valuable, and the book appears to us to be excellent in that respect." — 
 Solicitors' Journal, Juno 12, IS-O. 
 
 NISI PRIUS.— Roscoe's Digest of the Law of Evidence 
 
 on the Trial of Actions at Nisi Prius.— Fourteenth 
 
 Edition. By JOHN DAY, one of Her INlajesty's Counsel, and 
 
 MAURICE POWELL, Barrister-at-Law. Royal 12mo. 1879. 2^. 
 
 (Bound in one thick volume calf or circuit, 5s., or in tico convenient vols. 
 
 calf or circuit, 9s. net, extra.) 
 
 " The task of adapting the old text to the new procedure was one requiring much 
 
 patient laboui, careful accuracy, and conciseness, ai well as discrttion in the omiasiou of 
 
 matter obsolete or unnecessary. An examini.tiou of the bulky volume before us affords 
 
 good evidence of the possession of these qualities by the present editors, and we feel sure 
 
 that the popularity of the work will continue unabatud under their conscientious care." — 
 
 Late Magazine. 
 
 Selwyn's Abridgment of the Law of Nisi 
 Prius.— Thirteenth Edition. By DAVID KEANE, Q.C., 
 Recorder of Bedford, and CHARLES T. SMITH, M.A., one of the 
 Judges of the Supreme Court of the Cape of Good Hope. 2 vols. 
 Royal 8vo. 1869. (Published at 21. 16s.) Net, II. 
 
 HOT kfiOK— Vide "Digests." 
 
 NOTARY.— Brooke's Treatise on the Office and Prac- 
 tice of a Notary of England. — With a full collection of 
 Precedents. Fourth Edition. By LEONE LEVI, Esq., F.S.A., 
 of Lincoln's Inn, Barrister-at-Law. 8vo. 1876. 1/. 4s. 
 
 OATHS.— Braithwaite's Oaths in the Supreme Court 
 of Judicature. — A Manual for the use of Commissioners to 
 Administer Oaths in the Supreme Court of Judicature in England. 
 Part I. containing practical information respecting their Appoint- 
 ment Designation, Jurisdiction, and Powers ; Part II. comprising a 
 collection of officially recognised Forms of jurats and Oaths, with 
 Explanatory Observations. By T. W. BRAITHWAITE, of the 
 Record and Writ Clerks' Office. Fcap. 8vo. 1876. 4s. 6d. 
 
 " Tbe work wiU, we doubt not, become the recognised guide of commissioners to 
 
 adininister o&ths."— Solicitors' Journal. 
 
 PARISH LAW.— Steer's Parish Law; being a Digest of the 
 Law relating to the Civil and Ecclesiastical Government of Parishes 
 and the Relief of the Poor. Fourth Edition. By WALTER 
 HENRY MACNAMARA, Esq., Barrister-at-Law. Demy 8vo. 
 1881. 16s. 
 
 PARTITION.-Foster.— Firfe "Real Estate." 
 
 PARTNERSHIP.— Pollock's Digest of the Lavy of Part- 
 nership- — Second Edition, with Appendix, containing an anno- 
 tated reprint of the Partnership Bill, 1880, as amended in Committee. 
 By FREDERICK POLLOCK, of Lincoln's Tnn, Esq., Barrister-at- 
 Law. Author of " Principles of Contract at Law and in Eciuity." 
 Demy 8vo. 1880. 8s. 6d. 
 
 " Of the execution of the work, we can speak in terms of the highest praise. The 
 languaRO is simple, concise, and clear; and the general propositions may hear com- 
 parison with those of Sir James Stephen."-Xaw Maoaz,ne. ^^ ^, , . 
 
 "Mr Pollock's work appears eminently satisfactory . . . the book is praise- 
 worthy in design, scholarly and complete in execution.''~Saturdoy Review. 
 *,* All standard Law Works are kept in Stock, in law calf and other bindings
 
 24 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 PATENTS. — Hiiidmarch's Treatise on the Law rela- 
 ting to Patents.— 8vo. 1846. 11. Is. 
 JolTnson's Patentees' Manual; being a Treatise 
 on the Law and Practice of Letters Patent, 
 especially intended for the use of Patentees 
 and Inventors.— By JAMES JOHNSON, Bamster-at-Law, 
 and J. H. JOHNSON, Solicitor and Patent Agent. Foiirth Edition, 
 Tbonnighly revised and much enlarged. Demy 8vo. 1879. 10s. Gd. 
 " A vtiy excellent manual."— iatc Times. 
 
 " 'J'he authors have not only a knowledge of the law, but of the working of the law. Be- 
 ides the table of cases there is a copious index to subjects." — Low Journal. 
 
 Thompson's Handbook of Patent Law of all 
 
 Countries.— Third Edition, revised. By \VM. P. THOMPSON, 
 
 C.E., Head of the International Patent Office, Liverpool. 12mo. 
 
 1878. Net, 2s. 6d. 
 
 PERSONAL PROPERTY.— Smith.— Firfc " Real Property." 
 
 PETITIONS.— Palmer. — Vide " Conveyancing." 
 
 Rogers. — Vide "Elections." 
 POOR LAW.— Davis' Treatise on the Poor La^A/^s.— Being 
 Vol. IV. of Burns' Justice of the Peace. 8vo. 1869. 11. lis. 6rf. 
 
 POWERS. — Farwell on Powers. — A Concise Treatise on 
 
 Powers. By GEOKGE FAEWELL, B.A., of Lincohi's Inn, Esq., 
 
 Barrister-at-Law. 8vo. 1874. 1/. Is. 
 
 " We recommend Mr. Farwell's book as containing within a small compass what would 
 
 otherwise have to be sought out in the pages of liundreds of confusing leports." — The Lav: 
 
 PRINCIPAL AND AGENT.— Petgrave's Principal and 
 Agent. — A Manual of the Law of Principal and Agent. By 
 E. C. PETGRAVE, Solicitor. 12mo. 1857. 7s. 6d. 
 
 Petgrave's Code of the Law of Principal and 
 Agent, with a Preface. By E. C. PETGRAVE, Solicitor. 
 Demy 12mo. 1876. Net, sewed, 2s. 
 
 PRIVY COUNCIL. — Finlason's History, Constitution, 
 and Character of the Judicial Committee of 
 the Privy Council, considered as a Judicial Tribunal, 
 especially in Ecclesiastical Cases, with special reference to the right 
 and duty of its members to declare their opinions. By W. F. 
 FINLASON, Barrister-at-Law. Eemy 8vo. 1878. 4s. 6d. 
 
 Lattey's Handy Book on the Practice and Pro- 
 cedure before the Privy Council.— By ROBERT 
 THOMAS LATTEY, Attorney of the Court of Queen's Bench, 
 and of the High Court of Bengal. 12mo. 1869. 6s. 
 
 PROBATE. — Browne's Probate Practice : a Treatise on the 
 Principles and Practice of the Court of Probate, in Contentious and 
 Non-Contentious Business, with the Statutes, Rules, Fees, and 
 Forms relating thereto. By GEORGE BROWNE, Esq., Barrister- 
 at-Law, late Recorder of Ludlow. 8vo. 1873. 11. !/>. 
 "A Cursory glance through Mr. Browne's work Bhows that it has been compiled with 
 
 more than ordinary care and intelligence. We should consult it with every confidence." 
 
 — Law Times. 
 
 PUBLIC HEALTH.— Chambers' Digest of the Law re- 
 lating to Public Health and Local Govern- 
 ment. — With Notes of 1073 leading Cases. Various official 
 documents ; precedents of By-laws and Regulations. The Statutes 
 in full. A Table of Offences and Punishments, and a Copious 
 Index. Seventh Edition, enlarged and revised, with Supplement 
 containing new Local Government Board By-Laws in full. Imperial 
 8vo. 1875-7. _ 1/. 8s. 
 
 *^* The Supplement may be had separately, price 9s. 
 
 *^* AU standard Law Works are kept in Stock, in law calf and other bindings.
 
 119, CHANCERY LANE, LONDON, W.C. 25 
 
 PUBLIC HE^L^H-Cor>tinued. 
 
 FitzGerald's Public Health and Rivers Pol- 
 lution Prevention Acts. — The Law relating to Public 
 Health and Local Government, as contained in the Public Health 
 Act, 1875, with Introduction and Notes, showing all the alterations in 
 the ExistingLaw,with reference to the Cases, &c.; together with a Sup- 
 plement containing "The Rivers Pollution Prevention Act, 1876." 
 With Explanatory Introduction, Notes, Cases, and Index. By 
 G. A. R. FITZGERALD, Esq., Barrister-at-Law. Royal 8vo. 
 1876. i;. Is. 
 
 " A copious and well-executed analytical index completes the work, which we can 
 confidently recommend to the officers and members of sanitary authorities, and all 
 interested in the subject matter of the new Act." —Law Magazine and Review. 
 
 ■' Mr. FitzGerald comes forward with a special qualification for the task, for he was 
 emploj'ed by the Government in the i^reparation of the Act of ISTo ; and, as he himself 
 says, has necessarily, for some time past, devoted attention to the law relating to 
 public health and local government." —Law Journal. 
 
 PUBLIC MEETINGS.— Chambers' Handbook for Public 
 Meetings, including Hints as to the Summoning and Manage- 
 ment of them ; and as to the Duties of Chairmen, Clerks, Secretaries, 
 and other Officials; Rules of Debate, &c., to which is added a Digest 
 of Reported Cases. By GEORGE F. CHAMBERS, Esq., Bar- 
 rister-at-Law. 12mo. 1878. Net, 2s. 6d. 
 
 QUARTER SESSIONS.— Lean-king & Cross's General and 
 Quarter Sessions of the Peace.- Their .Turisdiction 
 and Practice in otlier than Criminal matters. Second Edition. By 
 HORATIO LLOYD, Esq., Recorder of Chester, Judge of County 
 Courts, and Deputy-Chairman of Quarter Sessions, and H. F. 
 THURLOW, of the Inner Temple, Esq., Barrister-at-Law. 8vo. 
 1876. . 11. Is. 
 
 " The present editors appear to have taken the utmost pains to make the volume 
 
 complete, and, from our examination of it, we can thoroughly recommend it to all 
 
 interested in the practice of quarter sessions." — Law Times. 
 
 Pritchard's Quarter Sessions. — The Jurisdiction, Practice 
 and Procedure of the Qviarter Sessions in Criminal, Civil, and Appellate 
 Matters. By THOS. SIRRELL PRITCHARD, of the Inner Temple, 
 Esq., Barrister-at-Law, Recorder of Wenlock. 8vo. 1875. 11. 2s. 
 " We can confidently say that it is written throughout with clearness and intelli- 
 gence, and that both in legislation and in case law it is carefully brought down to the 
 most recent date." — Solicitors' Journal. 
 
 RAILWAYS.— Browne and Theobald's Law of Rail- 
 way Companies. — Being a Collection of the Acts and Oi'dera 
 relating to Railway Companies, with Notes of all the Cases decided 
 thereon, and Appendix <jf Bye-Laws and Standing Orders of the 
 House of Commons. By J. H. BALFOUR BROWNE, of the 
 Middle Temple, Esq., Barrister-at-Law, Registrar to the Railway 
 Commissioners, and H. S. THEOBALD, of the Inner Temple, Esq., 
 Barrister-at-Law, and Fellow of Wadham College, Oxford. Demy 
 8vo. 1881. 1/. 12s. 
 
 Lely's Railway and Canal Traffic Act, 1873.— 
 And other Railway and Canal Statutes ; with the General Orders, 
 Forms, and Table of Fees. By J. M. LELY, Esq. Post 8vo. 1873. 8». 
 
 RATES AND RATING.— Castle's Practical Treatise on 
 
 the Law of Rating. By EDWARD JAMES CASTLE, of 
 
 the Inner Temple, Esq., Barrister-at-Law. Demy 8vo. 1879. li. Is. 
 
 "Mr. Castle's book is a correct, exhaustive, clear and concise view of the law." — 
 
 Law Times. 
 
 The book is a useful assistant in a perplexed branch of Law."— ^aw Journal. 
 
 *,* All standard Law Wwlcs are kept in Stock, in law calf and other bindings
 
 26 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 RATES ANO RVTlNG.-Co"""'"erf. . , ^ , ^ ,-, *• 
 
 Chambers' Law relating to Rates and Rating ; 
 
 with especial reference to the Powers and Duties of Rate-levying 
 
 Local Authorities, and their Officers. Being the Statutes in full 
 
 and brief Notes of 550 Cases. By G. F. CHAMBERS, Esq., 
 
 Barrister-at-Law. Imp. 8vo. 1878. 12«. 
 
 REAL ESTATE.— Foster's Law of Joint Ownership 
 
 and Partition of Real Estate. By EDWARD JOHN 
 
 FOSTER, M.A., late of Lincoln's Inn, Barrister-at-Law. 8vo. 
 
 1878. "10s. 6d. 
 
 "Mr. Foster may be congratulated on having produced a very satisfactory rade 
 
 mecwm o\\ the Law of Joint Ownership and Partition, tie has taken considerable 
 
 paina to make his treatise practically useful, and has combined \vithin the fifteen 
 
 chapters into which the book is divided, brevity of statement with completeness of 
 
 treatment. " — Law Maiiazine. 
 
 REAL PROPERTY.— Green^A^ood's Recent Real Pro- 
 perty Statutes. Comprising those passed during the years 
 1874-1877 inckisive. ConsoHdated with the Earlier Statutes thereby 
 Amended. With Copious Notes, and a Supplement containing the 
 Orders under the Settled Instates Act. 1878. By HARRY 
 GREENWOOD, M.A., Esq., Barrister-at-Law. 8vo. 1878. 10s. 
 " To students particularly this collection, with the careful notes and references to 
 
 previous legislation, will be of considerable value."— Z'jic Tiims. 
 
 '•The author has added notes which, especially on the Vendor and Purchaser Act, 
 
 and the Settled Estates Act, are likely to be useful to the practitioner ... so far 
 
 as we have tested them, the st tements appear to be generally accurate and careful, 
 
 and the work will be found exceedingly handy for reference.' —S^/ieiiors' Journal. 
 " Mr. Greenwoods book gives such of the provisions of the amended statutes as are 
 
 still in force, as well as the provisions of the new statutes, in order to show more 
 
 clearly the effect of the recent legislation.' —i-aic Journal. 
 
 Leake's Elementary Digest of the Law of Pro- 
 perty in Land. — Containing : Introduction. Part I. The 
 Sources of the Law.— Part II. Estates in Land. By STEPHEN 
 MARTIN LEAKE, Barrister-at-Law. 8vo. 1874. II. 2s. 1 
 
 •^ * The above forms a complete Introduction to tho Study of the Law of Real Property, ' j: 
 
 Shearwood'b Real Property.— A Concise Abridgment 
 of the Law of Real Property and an Introduction t> Conveyancing. 
 Desio-ned to facilitate the subject for Students preparing for 
 Examination. By JOSEPH A. SHEARWOOD, of Lincohi's Inn, 
 Esq., Barrister- at-Law. Demy 8vo. 1878. 6s. 6 d. 
 
 " The present law is expounded paragraphically, so that it coiild be actually liarnfd 
 without understanding tho origiu from which it has sprung, or the principles on 
 wliich it is based."— iau; Journal. 
 
 Sheiford's Real Property Statutes. — Eighth Edition. 
 By T. H. CARSON, Esq., Barrister-at-Law. 8vo. 1874. 1^. 10s. 
 Smith's Real and Personal Property.— A Com- 
 pendium of the Law of Real and Personal Property, primarily 
 connected with Conveyancing. Designed as a second book for 
 Students, and as a digest of the most useful learning for Practi- 
 tioners. By JOSIAH W.SMITH, B.C.L., Q.C. Fifth Edition. 
 2 vols. Demy 8vo. 1877. 2?. 2s. 
 
 " He has given to the student a book wliich he may read over and over again with profit 
 and pleasure." -iaic 2't//'«i. 
 
 •'The work before us will, we think, be found of very great service to the practitioner. 
 —Rohcttors' Journal. . ^ .r . , % t-« , ■ 
 
 REGISTRATION.— Browne's(G.Lathom)Parliamentary 
 and Municipal Registration Act, 1878 (41 & 42 
 Vict cap. 26) ; with an Introduction, Notes, and Additional 
 Forms. By G. LATHOM BROWNE, of the Middle Temple, Esq., 
 Barrister-at-Law. 12mo. 1878. 5s. 6d. 
 
 Rogers — Vide " Elections." 
 
 *,* All standard Law Wwka are kept in Stock, in law calf and other binding
 
 119, CHANCERY LANE, LONDON, W.C. 27 
 
 REGISTRATION CASES.— Hopwood and Coltman's 
 
 Registration Cases.— Vol. L(18C8-1872). Net,2l.l8s. Calf. 
 Vol. II. ^873-1878). N,t, 21. 10s. Calf. 
 
 Coltman's Registration Cases.— Vol. L Part L (1879 
 
 — 80). ^et, 10s. 
 
 RIVERS POLLUTION PREVENTION.— FitzGerald's Rivers 
 
 Pollution Prevention Act, 187S.— With Explanatory 
 
 Introduction, Notes, Cases, and Index. Royal 8vo. 1876. Zs. Qd. 
 
 ROMAN LAW.— Cumin.— ^((^e "CivH." 
 
 Greene's Outlines of Roman Law.— Consisting chiefly 
 of an Analysis and Summary of the Institutes. For the use of 
 Students. By T. WHITCO.MBE GREENE, B.C.L., of Lincoln's 
 Inn, Barrister-at-Law. Third Edition. Foolscap 8vo. 187-5. 7s. 6c?. 
 
 Mears' Student's Ortolan. — An Analysis of M. Ortolan's 
 Institutes of Justinian, including the History and 
 GeneraUzation of Roman Law. By T. LAMBERT MEARS, 
 M.A., LL.D. Loud., of the Inner Temple, Barrister-at-Law. 
 Published by permission of the late M. Ortolan. FostSvo. 1876. 12s.Qd. 
 
 Ruegg. — Vide "Justinian." 
 
 SAUNDERS' REPORTS.— Williams' (Sir E. V.) Notes to 
 
 Saunders' Reports. — By the late Serjeant WILLIAMS. 
 
 Continued to the present time by the Right Hon. Sir EDWARD 
 
 VAUGHAN WILLIAMS. 2 vols. Royal 8vo. 1871. 21. 10s. 
 
 SETTLED ESTATES.— Middleton's Settled Estates Act, 
 
 1877, and the Settled Estates Act Orders, 1878, 
 
 with Introduction, Notes and Forms, and Summary of Practice. 
 
 Second Edition. By JAMES W. MIDDLETON, B.A., of Lincoln's 
 
 Inn, Barrister-at-Law. 12mo. 1879. 43. 6d. 
 
 "Will be luuri'i exceedingly useful to lejal practitioners.'' — Laio Journal. 
 
 SHERIFF LAW.— Churchill's Law of the Office and 
 Duties of the Sheriff, with the Writs and Forms relating 
 to the Office. By CAMERON CHURCHILL, B.A., of the Inner 
 Temple, Barrister-at-Law, assisted by A. CARMICHAEL BRUCE, 
 B.A., of Lincoln's Inn, Barristerat-Law. Demy Svo. 1879. 18s. 
 "This is a wi rk upnn a suVject of litroe practical importance, and seems to have been 
 conirilcd with exceptioual care." — iaic- Times. 
 
 " Ui.der-Sheritts, aotl lawyers generally, will find this a useful book to have by them, 
 both fjr perusdl and reterenoe " — Law Magazine. 
 SHIPPING, and vide " Admiralty." 
 
 Boyd's Merchant Shipping Laws ; being a Consolida- 
 tion of all the Merchant Shipping and Passenger Acts from 1854 to 
 1876, inclusive; with Notes of aU the leading English and American 
 Cases on the subjects affected by Legislation, and an Appendix 
 containing the New Rules issued in October, 1876 ; forming a com- 
 plete Treatise on Maritime Law. By A. C. BOYD, LLB., Esq., 
 Barrister-at-Law, and Midland Circuit. 8vo. 1876. 1/. 5s. 
 
 " We can recommend the work as a very useful compeudium ol shipping law." — Law 
 Times. 
 
 Foard's Treatise on the Law of Merchant 
 Shipping and Freight.— By JAMES T. FOARD, Bar- 
 rister-at-Law. Royal 8vo. 1880. Half calf, 11. Is. 
 SIGNING JUDGMENTS.— Walker.- F/cZe "Judgments." 
 SLANDER — Odgers. — Vide " Libtl and Slander." 
 SOLICITORS.— Cordery's Law relating to Solicitors 
 of the Supreme Court of Judicature. — With an 
 Appendix of Statutes and Rules. By A. CORDERY, of the Inner 
 Temple, Esq., BarriNterat-I>aw. Demy 8vo. 1878. 14«. 
 " Mr. Cordery writes tersley and clearly, and displays in general great industry and 
 care in the collection of cases." — Soltcitoi s journal. 
 
 " The chapters on liability of solicitors and on lien may be selected a.s two of the 
 beat in the book." — Law Journal. 
 *,* All standard Lorn Works are kept in Stock, in laio calf and other hindingg.
 
 28 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 SOLICITORS' CUIDESk— Fzrfe " Examination Guides." 
 
 STAMP LAWS Tilsley's Treatise on the Stamp 
 
 Laws. — Being an Analjiiical Digest of all the Statutes and 
 Cases relating to Stamp Duties, with practical remarks thereon. 
 Third Edition. With Tables of all the Stamp Duties payable in 
 the United Kingdom after the Ist January, 1871, and of Former 
 Duties, &c., &c. By E. H. TILSLEY, of the Inland Revenue 
 Office. 8vo. 1871. 18s 
 
 STATUTE LAW.— Wilberforce on Statute La.^v.— The 
 Principles which govern the Construction and Operation of Statutes. 
 By EDWARD WILBERFORCE, of the Inner Temple, Esq., 
 Barrister-at-Law. Demy 8vo. 1881. 18s. 
 
 STATUTES, und vide "Acts of Parliament." 
 
 Chitty's Collection of Statutes froni' Magna 
 ChaVta to 1 880. — A Collection of Statutes of Practical Utility; 
 
 arranged in Alphabetical and Chronological order, with Notes 
 thereon. The Fourth Edition, containing the Statutes and Cases 
 down to the end of the Second Session of the year 1880. By J. M. 
 LELY, Esq., Barrister-at-Law. In 6 very thick' vols. Royal 8vo. 
 (8,346 pp.) 1880, 12?. 12s. 
 
 *^* This Edition is printed in larger type than former Editions, and 
 with increased facilities for Reference. 
 
 " Tlie codification of the Statutes, unlike the codification of the Common Law, 
 presents indubitable advantages. The collection of the late Mr. Chitty and his sub- 
 sequent editors is practically no less authoritative, and rendered more useful by the 
 addition of commentary and decided cases, than an official code would be. The 
 interval of 20 yeaiss hitherto observed between the editions of this work since its first 
 appearance in 18'25 has been conveniently shortened to 15 between the last edition 
 and that now before us. It does not take long, in an era when legislation does every- 
 thing for us and we do nothing for ourselves, for a roll of statutes to accumidate 
 sufficient to make the addenda almost as voluminous as the body of the work. The 
 Acts relating to Bankruptcy, Man-ied Women's Property, Shipping, the Judicature, 
 Bills of Sale, Artisans' Dwellings, and Public Worship are only a small sample of the 
 important legislation wliich the new edition embodies. It was too late, however, to 
 include the enactments of this year otherwise than in an appendix. The four 
 volumes of the previous edition have been swollen to six ; but the increase in bulk is 
 amply compensated by a larger tj^e and generally-increased usefulness. It is need- 
 less to enlarge on the value of " Chitty's Statutes " to both the Bar and to solicitors, 
 for it is attested by the experience of many years. It only remains to point out that 
 Mr. Lely's work in bringing up the collection to the present time is distinguished by 
 care and judgment. The difficulties of the editor were chiefly those of selection and 
 arrangement. A very slight laxness of rule in including or excluding certain classes 
 of Acts would materially affect the size and compendiousness of the work. Still 
 more important, however, is the way in which the mechanical difficulties of an-ange- 
 ment are met. The Statutes are compiled imder sufficiently comprehensive titles, in 
 alphabetical order. Mr. Lely, moreover, supplies us with three indices — tlie first, at 
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