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PART IV.

matter charged to be a libel, in the first count of the declaration, was a faithful report of a debate in the House CHAPTER XII. of Lords, and that the matter complained of in the second count was a fair comment on such debate as a matter of public interest, was allowed under the plea of not guilty, which was the only plea on the record. (a)

There is an old case in Starkie's Reports (b) which is still sometimes cited as an authority for the proposition that an accord and satisfaction, or a release may be given in evidence under the plea of not guilty; but the fact has been overlooked that that case was decided under the old system of pleading, before the pleading rules of Hilary term, 4 Will. 4, when, according to Serjeant Stephens, the defendant was permitted, under the general issue, to give in evidence any matter of evidence whatever (subject to some few exceptions) which tended to deny his liability to the action. (c) But now, under the Pleading Rules of Trinity Term, 1853, all matters in confession and avoidance must be pleaded specially. (d)

reports, &c.

This seems the proper place to notice the defence which Publication of the Legislature has provided for persons who are sued parliamentary for the publication of the proceedings, reports, papers, and votes of either House of Parliament, or extracts or abstracts

therefrom.

By 3 & 4 Vict. c. 9, s. 1, (e) it is provided that proceed- 3 & 4 Vict. c. 9 ings criminal or civil, against persons for the publication of papers, &c., under the authority of either House of Parliament shall be stayed upon the production in court (after twenty-four hours' notice) of the certificate of the Lord Chancellor, Speaker, Clerk of the Parliament, Speaker of the House of Commons, or the clerk thereof, stating that the paper complained of was published by order or authority. of the House of Lords or House of Commons, together with an affidavit verifying such certificate.

The second section of the same statute enacts that proceedings for publishing a copy of any parliamentary paper, &c., shall be stayed at any stage thereof, upon the defendants laying before the court or judge such report and such copy, with an affidavit verifying such report and the correctness of such copy.

The third section enacts that in any civil or criminal

(a) See also 1 Wms. Saunders, 130 (1); Lillie v. Price (5 Ad. & Els. 645); Hunter v. Sharpe (4 F. & F. 983).

(b) Lane v. Applegate (1 Starkie's N. P. 97).
(c) Stephens on Pl. 155 (edition of 1866).
(d) See rules 16 & 17.

(e) Vide ante, pp. 496, 497.

PART IV.

CHAPTER XII.

Plea of justifica

proceedings for printing any extract from, or abstract of, such report, &c., it shall be lawful, under the general issue, to give in evidence that such extract or abstract was published bona 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.

If the defendant desires to justify the libel on the ground tion on ground that it is true, he must put a special plea on the record to

of truth.

Justification

where charge is general.

that effect. (a)

Caution should be exercised in setting up such a defence, as, unless it is made out to the satisfaction of the jury, they will probably consider the futile attempt as an aggravation of the original wrong; and there are dicta to show that they would be justified in so regarding it. (b)

Where the libel, as laid in the declaration, consists of general charges of criminal or improper conduct, the plea should justify by specifying the particular acts which support the imputations, so that the plaintiff may be aware of the defence which is to be set up.

Before the Common Law Procedure Act of 1852 a plea containing general charges of fraud or felony was bad on special demurrer; and now the court would either strike it out or order particulars of the charges intended to be justified, to be delivered to the plaintiff.

In the case of l'Anson v. Stuart (c) the declaration was for printing of the plaintiff that he was a swindler; and the defendant pleaded that the plaintiff had been illegally, fraudulently, and dishonestly concerned and connected with, and was one of, a gang of swindlers and common informers, and had also been guilty of deceiving and defrauding divers persons with whom he had dealings and transactions. Upon special demurrer, the Court of King's Bench, reversing the judgment of the Common Pleas, held that the plea was bad, for not stating the particular instances of fraud upon which the defendant relied in support of it.

Buller, J., (d) said: "If this plea were to be suffered, it would be to allow any person to libel another more on the records of the court than he could do in a public newspaper. If the plaintiff has been guilty of any acts of swindling, the defendant must be taken to know them. He could not prove the justification, as he has pleaded it, by general evidence; but he has no justification, unless he can prove the special

(a) Rules Trin. T. 1853; see rule 17.
(b) See Wilson v. Robinson (7 Q. B.
Simpson v. Robinson (12 Q. B. 514).
(d) 1 T. R. 758.

68; 14 L. J. Q. B. 196); (c) 1 T. R. 748.

instances; and, knowing them, he ought to put them on the record, that the plaintiff might be prepared to answer them. It has been said that this case is different from the case of Newman v. Bailey, (a) because that was a specific charge. But that is not so; for there the plaintiff was charged with pocketing all the fines, &c., which was as general as possible; and there the court said it was necessary to specify the particular acts."

So in Holmes v. Catesby, (b) where the libel charged an attorney with gross negligence, falsehood, and prevarication, and excessive bills of costs in the business he had conducted for the defendant, a plea simply repeating the charges in the libel, without specifying particular acts of misconduct, was held bad on demurrer.

To a declaration for words imputing to the plaintiff, a pawnbroker, that he had committed the unfair and dishonourable practice of" duffing," i.e., of replenishing or doing up goods, being in his hands in a damaged or worn-out condition, and pledging them with other pawnbrokers, the defendant pleaded that the plaintiff did replenish and do up divers goods, being in his hands in a damaged or worn-out condition, and pledged them with other pawnbrokers. This plea was specially demurred to, upon the ground that it did not state what goods or what kind of goods were so "duffed," nor with what pawnbroker they were pledged. And the court held the plea bad. (c)

Parke, B., said: "It is a perfectly well-established rule in cases of slander that where the charge is general in its nature, the defendant, in a plea of justification must state some specific instances of the misconduct imputed to the plaintiff. That is settled by the cases of l'Anson v. Stuart, Newman v. Bailey, and Holmes v. Catesby. In some of those cases, perhaps, the statement in the plea was not so specific as it is here, but still this is not specific enough: the plea should have stated the description of the goods, or at least the names of the pawnbrokers with whom they were pledged; as it is, the statement is so general that the plaintiff cannot know with what he is intended to be charged. The defendant is bound to give him information of some specific acts with which he intends to charge him. This plea does not do that, and is therefore bad."

And Alderson, B., in the same case, referring to the argument used by the counsel for the defendants, that it

(a) 2 Chitty R. 665; cited arguendo by Wood. See 1 T. R. 750. (b) 1 Taunt. 543.

(c) Hickinbotham v. Leach (10 M. & W. 361).

PART IV. CHAPTER XII.

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PART IV.

must be peculiarly within the plaintiff's own knowledge CHAPTER XII. what the goods were which he had replenished, and with what pawnbrokers he pledged them, said: "What the plaintiff has actually done in the course of his business is within his knowledge, but not what the defendant mistakenly or wickedly means to charge him with having done that is peculiarly within the defendants' knowledge, and it is because it is so that he is to plead it.(a)

General plea
of justification.

More laxity has been allowed in these pleas since the abolition of special demurrers; and even a general plea, that the matters in the declaration complained of are true in substance and fact, has been allowed, on condition that the defendant should furnish particulars of the charges intended to be justified.

The Court of Common Pleas allowed such a plea in the case of Behrens v. Allen, (b) where the libel consisted of charges against the plaintiff's honesty in having, at divers dates (which were specified), bought goods below cost price from a bankrupt firm. Willes, J., in the course of the argument, said: "I'Anson v. Stuart adverts to the distinction between the case where the plea states in justification an indictable matter, and where it states what is not of that character. In the latter case I have always, at chambers, allowed the plea, the defendant furnishing particulars." And Erle, C.J., said: "It is much the same question, to my mind, whether the plea or the particulars set out all the facts."

In giving judgment in the same case, Willes, J., said: "l'Anson v. Stuart makes it clear that before the Common Law Procedure Act, 1852, a general plea of justification in these circumstances was not allowed, with the exception, possibly, of a case of a specific charge in the declaration, and a plea alleging the charge to be true. In such a case as this, where the charges are mostly specific, the real question may be raised by allowing a general plea of the part specified -a general plea to that part, and a special plea to the other part. Nevertheless, I do not mean to say that on any future case I shall not reserve to myself to allow a plea of justification in libel, on such terms as will oblige the parties to try the real question between them, in the clearest possible form."

In an earlier case (c) the court had refused to allow the defendant to plead one general justification to a declaration (a) See also O'Brien v. Clement (16 L. J. Ex. 76; 16 M. & W. 159); Jones v. Stevens (11 Price, 235). (b) 8 Jurist, N. S. 118.

(c) Honess and another v. Stubbs (7 C. B. N. S. 555; 29 L. J. 220, C. P.; 6 Jur. N. S. 682).

PART IV

containing three counts for three separate libels, charging the plaintiff with swindling, although the defendant offered CHAPTER XII. to deliver full particulars of the intended defence. The grounds of the refusal were stated by Williams, J., as follows: "The difficulty is this. If you set out in your pleas the facts upon which you rely, the court has an opportunity of judging whether they do amount to a justification or not; whereas, by the course proposed, you prevent the matter from getting on the record at all."

An example of vagueness in pleading a justification carried to its furthest limits is furnished by the case of Jones v. Bewicke. (a) There the first count of the declaration stated that the defendant spoke and published of the plaintiff as an attorney and solicitor the words "he is a bankrupt swindler." The second count charged the following libel: "Old Perjury Jones, of Goring-place, Llanelly, South Wales." "Mr. Bewicke has only to repeat that the attorney Jones did perjure himself. An action for libel will only prove the truth of the above facts, and clearly demonstrate to the public the gross perjury of the above parties." To this the defendant pleaded, first, "not guilty," and secondly, "that the defamatory matter in the declaration mentioned and complained of was and is true in substance and fact." Cleasby, B., dismissed a summons calling upon the plaintiff to shew cause why he should not give particulars of the facts and matters relied on to justify the libels, and why, in default, the plea should not be struck out. But, on appeal to the Court of Common Pleas, the rule was made absolute in the terms of the summons; Keating, J., doubting "whether such a plea should be allowed at all," and Montague Smith, J., saying, "The plea is clearly an embarrassing one, and ought not to be allowed without particulars." Where the charge in the libel is specific, the plea need Where charge only allege that it is true.

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This was the case even under the old system of pleading; as, where the words were he stole two sheep of J. S.," a plea "that the plaintiff stole the said sheep" was held sufficient. (b) But a plea that the libel "is true in substance and effect," means that it is true in every material particular; so that where the libel charged the plaintiff with various acts of cruelty to a horse, and, amongst others, with knocking out an eye, and the defendant pleaded that the matters contained in the supposed libel were true in substance and effect, it was held that the justification was (a) L. Rep. 5 C. P. 32.

(b) Brooke's Abr. Action sur le case, Pl. 3 (27 H. 822).

in libel is specific.

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