PART IV.

not sustained by a verdict that the libel was true in all CHAPTER XIL respects, except that the eye was not knocked out. (a) Where the publication complained of does not make a direct charge against the plaintiff, but reports defamatory statements made by others, a plea that the several matters and things contained in the alleged libel are true, is bad; as such a plea might mean either that the report in the newspaper was a true report of what had been said by others, or that the facts mentioned were true.(b)

Plea of justification to part of declaration.

A libel imputing specific misdeeds to the plaintiff cannot be justified by a plea alleging that he was guilty of other misdeeds of the same nature. So that where, to an action for saying, "She is a thief to you and to me, and hath stolen twenty pounds from me, and forty pounds from you," the defendant pleaded that the plaintiff was a thief, and stole two hens from her on such a day feloniously, the plea was held bad. (c)

The defendant may limit his plea of justification to part of the declaration; (d) but he must take care that it justifies the whole of what it purports to answer, or else it will be demurrable.(e)

Where the libel stated that the plaintiff's ship was unseaworthy, and had been bought by Jews to take out convicts, a plea to the whole declaration, that the allegation of unseaworthiness was true, was held bad for not justifying the allegation that she had been sold to Jews to take out convicts. (f)

And where the declaration was for a libel which imputed to the plaintiff that he had been guilty of murder in killing his opponent in a duel, and stated in reference to his trial upon the charge, "It was understood that the counsel for the prosecution were in possession of a damning piece of evidence, viz., that the prisoner (meaning the plaintiff) had spent the whole of the night immediately preceding the duel in practising pistol firing," a plea alleging merely that the plaintiff killed his antagonist, and was tried for murder, was held bad. (g)

Jervis, C.J., said, (h) "The whole Court is of opinion

(a) Weaver v. Lloyd (2 B. & C. 678).

(b) Duncan v. Thwaites (3 B. & C. 556).

(c) Hilsden v. Mercer (Cro. Jac. 677). See also Johns v. Gittings (Cro. Eliz. 239).

(d) Clarke v. Taylor (3 Scott, 95; 2 Bing. N. C. 654).

(e) 1 Wms. Saunders, 28, a (note 3), and 244, b (note q).

(f) Ingram v. Lawson (5 Bing. N. C. 66).

(g) Helsham v. Blackwood and another (11 C. B. 111).
(h) Id. p. 128.

PART IV.

that the plea, which professes to justify the entire libel, but fails to justify what we hold to be a material part CHAPTER XII. of it, is a bad plea. The libel, in substance, charges that the plaintiff was guilty of murder under circumstances of grave and malignant aggravation; and the justification. states simply that the plaintiff committed murder by killing his antagonist in a duel. It does not lie in the mouth of the defendant to say that it matters not whether the murder was committed under one state of circumstances or another, because the very terms in which the libel is conceivedspeaking of the plaintiff's conduct anterior to the meeting, and calling it a damning piece of evidence '-show that the defendants intended to impute to the plaintiff something which, in their estimation, was very much more culpable than murder under the circumstances which usually attend a hostile meeting of the kind alluded to. I think we should be doing a serious injury to public morals if we permitted ourselves to be influenced by the argument of Mr. Peacock, that it makes no difference, as to the quality of the libel, whether the alleged duel was fought fairly, as it is called, or unfairly. It certainly could not be said, upon a trial for killing in a duel, in a criminal court, that the question of murder or no murder was to depend upon whether or not the affair had been conducted with a due regard to the laws of honour. But to say that the court is not at liberty to take the circumstances into consideration, when called upon to determine the question of libel or no libel, is quite a different matter. When the question is murder or no murder, in ascertaining the innocence or the guilt of the party charged, the Court cannot enter into an investigation of extenuating circumstances; but in a case like this, the circumstances must necessarily form a very large portion of the inquiry. If it were otherwise, the most opprobrious and defamatory language might be uttered of a man who had had the misfortune which is said to have befallen this gentleman, and the law would give him no redress." And Maule, J., in the same case, tersely laid down the rule of law in a passage cited ante, pp. 392, 393. (a)

justify substance

On the other hand, if the plea justifies the gist and sub- Sufficient to stance of the libel, it is sufficient, although it may not cover of libel. every epithet or term of general abuse which may be found in the libellous imputation.

(a) See also McGregor v. Gregory (11 M. & W. 287); Clarkson v. Lawson (6 Bing. 266); Goodburne v. Bowman (9 Bing. 532, 667); O'Brien v. Bryant (16 M. & W. 168); Smith v. Parker (13 M. & W. 459); Mountney v. Watton (2 B. & Ad. 673).

PART IV.

Thus, where the substantial charge in the libel was that CHAPTER XII. the plaintiffs compounded and sold poisonous and deleterious pills, and that the defendant had crushed the system of poisoning pursued by the scamps and rascals, a plea to the whole declaration was held good, although it contained no justification of the terms scamps and rascals; (a)

Plea or demurrer to part of libel.

Justification of words with or without meaning in innuendo.

A statement that the plaintiff was convicted of a special offence, and received a certain sentence, is not justified by a plea alleging that he was convicted of the offence, and received a less sentence; because the Court cannot, as a matter of law, say that the difference cannot be libellous. But in the case of Alexander v. the North-Eastern Railway Company, (b) the defendants were allowed to amend such a plea by setting out the same sentence as the libel stated, although such statement was in fact false. To this amended plea the plaintiff replied by setting out the conviction verbatim; and the defendants rejoined that the conviction was described with sufficient accuracy and truth, both in the libel and the plea, and that the words, so far as they were libellous, appeared, from the allegations in the plea, to be and were true in substance. On demurrer to this rejoinder, the Court held the rejoinder good, as the substitution, in the alleged libel, of three weeks' for a fortnight's imprisonment (the actual sentence) was not necessarily libellous. (c)

It is a good plea to an action for libelling the plaintiff's character that a certain transaction took place, and that the libel was published of the plaintiff solely in reference to that transaction and was justified by it.(d)

Although the defendant may demur or plead to part of a libel, he can only do so when it contains distinct imputations; "but no case has been, nor can any be, produced, in which, where many statements tend to one conclusion and imputation, a single sentence or portion of a sentence may be selected and separately dealt with; either by plea or demurrer." (e)

To a declaration setting out the libel with innuendos, the defendant may plead the general issue as to the words

(a) Morison v. Harmer (4 Scott. 524; see p. 534; 3 Bing. N. C. 759).
See the passage from the judgment of the court cited ante, pp. 396, 397.
See also Edwards v. Bell (1 Bing. 403); Biggs v. Great Eastern Railway
Company (18 L. T. N. S. 482).

(b) 34 L. J. 152, Q. B.; 11 Jur. N. S. 619; 13 W. R. 651.
(c) lb.

(d) Tighe v. Cooper (7 E. & B. 641; 26 L. J. 215, Q. B.); See Cromwell's case (4 Rep. 13).

(e) Per Lord Abinger, C.B., Eaton v. Jones (1 Dowl. N. S. 608).

CHAPTER XII

with the meaning in the innuendo, and justify as to them PART IV. without the meaning; or he may justify as to them with the meaning in the innuendo, and also as to them without the meaning; (a) but care must be taken to limit the plea to that construction which it is intended to answer.

tations in libel

Where a libel contains several distinct imputations on Where all imputhe plaintiff, and the declaration sets out only some of them, are not set out. the defendant will not be allowed to plead that the other charges were contained in the libel, and to justify the whole article; nor may he put any other sense on the words than that assigned to them in the declaration. (b)

lication by

It is no justification to an action for libel that the libel- Previous publous matter has previously been published by a third person another no -notwithstanding the fourth resolution in the Earl of justification. Northampton's case, (c) viz.: "In a private action for slander of a common person, if J. L. publish that he hath heard J. N. say that J. G. was a traitor, or thief, in an action on the case, if the truth be such, he may justify." Pollock, C. B., in the case of Tidman v. Ainslie, (d) said that this doctrine, "assuming it to be law, has never been applied to written slander, in which the repetition, by being more largely circulated, produces a greater injury to the individual slandered."

ally pleaded.

Although, as has already been seen, it is not necessary Privilege specior usual to plead specially the defence of privilege, yet it is sometimes done, in order to raise the question on the record by demurrer.

A plea that the alleged libel is a report of a trial, must aver that it is a true and accurate account; it is not sufficient to plead that it is in substance a true report; (e) although it will suffice to prove that it is a fair and impartial (though not verbatim) report. (ƒ)

If the publication contain comment on the trial, the plea must justify that as well as the report. (g)

In strictness, a plea of privilege ought to aver that the matter was published bona fide, and without malice; (h) but, it is apprehended, the abolition of special demurrers has

(a) See Watkin v. Hall (L. Rep. 3 Q. B. 396; 18 L. T. N. S. 561; 37 L. J. 125, Q. B.; 16 W. R. 857).

(b) Brembridge v. Latimer (12 W. R. 878). (c) 12 Rep. 133. (d) 10 Ex. 66. See also MPherson v. Daniels (10 B. & C. 270; 1 Wms. Saunders, 244).

(e) Flint v. Pike (4 B. & C. 473); Lewis v. Walter (4 B. & A. 605).

(f) Lewis v. Levy (E. B. & E. 537; see p. 553).

(9) Cooper v. Lawson (8 A. & E. 746).

(h) Smith v. Thomas (2 Bing. N. C. 372).

PART IV.

precluded the plaintiff from taking advantage of the CHAPTER XIL omission of such an averment. (a)

Plea of apology and payment

into court.

So, in the old days of pleading, a plea of justification which did not formally confess the publication of the libel was bad; (b) but this formality is no longer requisite, (c) and in practice is never observed.

The next defence which requires our notice is that provided by the Legislature, for the protection of the liberty of the Press.

The 6 & 7 Vict. c. 96, s. 2, enacts "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 opportunity afterwards, he inserted in such newspaper or other periodical publication a full apology for the said libel, or, if the newspaper or periodical publication in which the said libel appeared should be ordinarily published at intervals exceeding one week, had offered to publish the said apology in any newspaper or periodical publication, to be selected by the plaintiff in such action; and that every such defendant shall, upon filing such plea, be at liberty to pay into court a sum of money by way of amends for the injury sustained by the publication of such libel, and such payment into court shall be of the same effect, and be available in the 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 herein before 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, . . . and that to such plea to such action it shall be competent to the plaintiff to reply generally, (d) denying the whole of such plea."

Unless the defendant pay money into court at the time (a) See Young v. Austen (L. Rep. 4 C. P. 553; 21 L. T. N. S. 327 ; 38 L. J. 233, Q. B.; 18 W. R. 63).

(b) Johns v. Gittings (Cro. Eliz. 239; see 1 Wms. Saunders, 244, a). (e) Stephens on Pleading, 185.

(d) This means that the plaintiff shall be at liberty to deny the whole or any part of such a plea: the plaintiff is not bound to deny the whole of the plea (Chadwick v. Herepath, 3 C. B. 885.) A replication which admitted that the libel was inserted in a newspaper, and the payment of money into Court, and traversed the insertion of the libel without actual malice, and without gross negligence, and the sufliciency of the money paid into Court as amends, was held good: (Ib.)