1846. for libel in a newspaper, the defendant cannot plead not guilty to the whole declaration, together with a plea of apology and payment of money into Court, as to part, under c. 96. O'BRIEN v. CLEMENT. To an action THE declaration in this case contained a count for a libel published in a newspaper called "Bell's Life in London.” A summons was taken out at Chambers for leave to plead several matters, namely, first, to the whole declaration not guilty; secondly, to part of the libel a justification; and thirdly, to part of the libel, a special plea of apology and tender of amends, under the 6 & 7 Vict. c. 96, s. 2, which enacts, "that in an action for a libel contained in any public newspaper or other periodical publication, it shall the 6 & 7 Vict. 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 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 fourth year of his late Majesty, intituled, An Act for the further amendment of the law, 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 the plea." Platt, B., having made the order required, Lush obtained a rule nisi to amend the order of Platt, B., and the rule of Court drawn up thereon, on the ground that the third plea could not be pleaded together with a plea of not guilty. Jervis and C. Clark shewed cause. The defendant is entitled to plead these pleas. The 6 & 7 Vict. c. 96, is cumulative, and gives a new form of plea, which, except for the statute, would be bad, as it denies malice, and so in effect amounts to not guilty. [Parke, B.—A defendant cannot plead not guilty and pay money into Court in respect of the same trespasses.] In trespass the act alone is regarded, but in an action of libel the act and intention must be considered together. [Pollock, C. B.—Suppose the defendant should succeed on the plea of "not guilty," how is the judgment to be entered, for if he were not guilty, he ought not to have paid money into Court? Parke, B.— The payment into Court is certainly an admission of a cause of action. The statute extends the power of paying money into Court to actions of libel, but only to certain special cases; and in order to make the plea good, it must appear that the libel is one of those special cases. The substance of the plea is this, "I admit that I am wrong, but I pay money into Court, which I say is a satisfaction:" but in order to justify the defendant in doing so, he must shew that the libel was published without actual malice, and without gross negligence. In truth it is nothing more than a special plea of payment of money into Court.] Payment of money into Court under the statute differs from a payment into Court under the 3 & 4 Wm. 4, c. 42, s. 21, for in those cases the right of action is complete on proof of some act done, but in libel the jury must be satisfied that it was published with a malicious intention. [Pollock, 1846. O'BRIEN v. CLEMENT. 1846. O'BRIEN v. CLEMENT. C. B.-That is not so. Lush was not called upon to support the rule. PER CURIAM (a).—The pleas ought not to be allowed, and the rule must be absolute, to amend the order and rule to plead several matters, by restricting the general issue to that part of the declaration to which the plea of payment of money into Court does not apply. Rule absolute accordingly. (a) Pollock, C. B., Parke, B., Platt, B. In trespass for false imprisonment, the defendant justified under a ca. sa. issued on a judgment obtained against the BROWN V. JONES and Others. TRESPASS for assaulting and imprisoning the plaintiff. Plea that defendant Jones, in the Court of Queen's Bench, by the consideration and judgment of the Court, recovered against the plaintiff the sum of 1501. for damages and costs, whereof the plaintiff was convicted, prout patet plaintiff. Repli. per recordum: that the other defendants, as attorneys for cation, that the Jones, issued a non omittas ca. sa. against the plaintiff, judgment was signed on a warrant of attorney, and that the judgment and ca. sa. were set aside by a Judge's order, which was afterwards made a rule of Court; on the ground that the warrant of attorney was never delivered as a complete authority to do or suffer any of the acts therein specified, but as an escrow to be kept by the plaintiff in his own possession till a certain event should happen that the defendant, by improper contrivance, obtained and kept possession of it, without the plaintiff's consent: Held, first, that the replication was good, as it sufficiently appeared that the judgment was set aside, not on the ground of its being erroneous, but on the ground of irregularity, or want of good faith. Secondly, that it was not necessary to allege that the order was made a rule of Court before the commencement of the suit. Thirdly, that nul tiel record was not the proper replication to such plea. directed to the sheriff of Bristol, by virtue of which the sheriff arrested the plaintiff: quæ sunt eadem, &c. Replication that the judgment was not a judgment 1846. BROWN v. JONES signed in any action, but under colour of a document, pur- and Others. porting to be a warrant of attorney: that after the issuing of the non omittas ca. sa., and before the commencement of this suit, by a certain order of Platt, B., it was ordered that the judgment in the plea mentioned, and the said writ of ca. sa. should be set aside, and the same were set aside, which said order was afterwards, to wit, on the 9th day of October in the year aforesaid, ordered to be made, and the same was made, a rule of Court: that the judgment and ca. sa. were set aside on the ground that the document, although purporting to be a warrant of attorney, was never delivered to the attorneys as a complete authority to them to do or suffer any of the acts therein specified, but was merely delivered by the plaintiff as an escrow, to take effect in a certain event, which event had never happened, and was to be kept by the plaintiff in his own possession till such event should happen: that the defendant, by an improper contrivance, obtained and kept possession of it, without the consent and against the will of the plaintiff: and that the said judgment was signed under colour of the said document, and the writ of ca. sa. issued on such judgment, without the consent of the plaintiff. Special demurrer, assigning for causes (amongst others) that it appears in and by the said replication, that there was no valid or sufficient ground for setting aside the said judgment: also that it does not appear in or by the said replication that the said order for setting aside the said judgment was made a rule of Court before the commencement of the suit. Pearson, in support of the demurrer. First, it appears on the face of the replication that the learned Judge had no authority to set aside the judgment. It is alleged that the warrant of attorney was delivered as an escrow, whereas 1846. BROWN V. JONES it is clear that it could not have been, inasmuch as it was kept in the possession of the plaintiff himself; Com. Dig. tit. "Fait." (A 3.) The replication is inconsistent and and Others. repugnant, and discloses no valid ground for setting aside the judgment. If it had merely stated that the judgment was set aside for irregularity, that would have been sufficient; but as it proceeds to allege the reasons for setting it aside, and they prove to be insufficient, the order cannot be supported. Where an award is made in general terms, the Court will not inquire into the grounds of the arbitrator's finding; but if he state on the face of his award facts which shew that he has mistaken the law, the award will be bad. [Alderson, B.-In Prentice v. Harrison (a), the Court held a similar replication bad, for not alleging that it was set aside for irregularity; inasmuch as it might have been set aside as erroneous, in which case the defendant would not have been liable. But in this case such a state of things cannot be suggested, for the Court see that the ground of setting it aside must either have been irregularity or want of good faith. Pollock, C. B.-The learned Judge seems to have set aside the judgment because he thought it was signed against good faith, and contrary to the agreement of the parties.] Secondly, the replication is bad, in omitting to state that the order for setting aside the judgment was made a rule of Court before the commencement of the suit; Tucker v. Webster (b). That averment is material and traversable, and was introduced in Prentice v. Harrison, and Codrington v. Lloyd (c). [Alderson, B.There is no necessity for it: it is not like where you seek to bring a party into contempt. The order of the Judge operates on the officer of the Court, not on the party.] Thirdly, the plaintiff ought to have replied nul tiel record. The defendant justifies under matter of record, which, if denied, should be tried by the record. (a) 1 D. & M. 50; S. C. 4 Q. B. 852. (b) 1 Dowl. 960, N. S.; S. C. 10 M. & W. 371. (c) 8 A. & E. 449; S. C. 3 N. & P. 442. |