The previous libels and slanders may be made the matter of a counter-claim, even though not immediately connected with the words on which the 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. R. 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. (Harnett v. Vise and wife, 5 Ex. D. 307; 29 W. R. 7.)

Illustrations.

The defendant published an inaccurate report of proceedings in a court of justice, reflecting on the character of the plaintiff; any evidence to show that the defendant honestly intended to present a fair account of what took place, and had blundered through inadvertence solely, was held admissible by Coleridge, J., in

Smith v. Scott, 2 Car. & Kir. 580.

And, therefore, evidence of what 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.

Charlton v. Watton, 6 C. & P. 385.

Where a newspaper republished the report of a company containing reflections on the plaintiff, their manager, Wightman, J., directed the jury that if they were satisfied such publication was made innocently, and with no desire to injure the plaintiff, they might give nominal damages only.

Davis v. Cutbush and others, 1 F. & F. 487.

Where an editor refused to disclose the name of his correspondent who wrote the libel, but offered to open his columns to the plaintiff, and the plaintiff accepted this offer and wrote several letters which the defendants published, replying to the charges made against him and explaining them away, Martin, B., directed the jury to take these circumstances into their consideration in favour of the defendants.

Harle v. Catherall and others, 14 L. T. 801.

A libel by A. on B. is no justification for an assault by B. on A., though if A. sue for the assault, B. may give the libel in evidence to show provocation, and thus reduce the damages.

Fraser v. Berkeley, 7 C. & P. 621; 2 M. & R. 3.

Keiser v. Smith, 46 Amer. Rep. 342.

(v) Evidence of the Plaintiff's Bad Character.

One way, but a very dangerous one, of minimising the damages, is to show that the plaintiff's previous character was so notoriously bad that it could not be impaired by any

fresh accusation, even though undeserved. The gist of the action is the injury done to the plaintiff's reputation; and if the plaintiff had no reputation to be injured, he cannot be entitled to more than nominal damages. Hence the fact that the plaintiff had a general bad character before the date of the libel or slander may be given in evidence in mitigation of damages. But the defendant may not go into particular instances; still less may he prove the existence of a general report that the plaintiff had actually committed the particular offence of which the defendant accused him or any similar offence. (Scott v. Sampson, 8 Q. B. D. 491; 51 L. J. Q. B. 380; 30 W. R. 541; 46 L. T. 412; and see Wood v. Earl of Durham, 21 Q. B. D. 501; 57 L. J. Q. B. 547; 37 W. R. 222; 59 L. T. 142; and Wood v. Cox, (1888) 4 Times L. R., at p. 655.)

If, however, the plaintiff goes into the box, he can of course be cross-examined to credit" on all the details of his previous life which affect his credit; but, unless such details are material to the issue, the defendant must take the plaintiff's answer, and cannot call evidence to contradict it.

Evidence as to the plaintiff's general bad character will not, however, be admissible unless it be shown that his character was such previously to the alleged libel or slander; for otherwise his evil reputation may have been occasioned by the defendant's own publication, which would rather aggravate than diminish the damages. (Thompson v. Nye, 16 Q. B. 175; 20 L. J. Q. B. 85; 15 Jur. 285.) And now by Order XXXVI. r. 37, a defendant who has not justified will not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the character of the plaintiff, without the leave of the judge, unless he has seven days at least before the trial furnished particulars to the plaintiff of the matters as to which he intends to give evidence.

There had been a conflict of opinion as to the admissibility of evidence of the plaintiff's general bad character, and of rumours prejudicial to his reputation; but the law on the point was settled by the decision in Scott v. Sampson, suprà. It is, therefore, no longer

necessary to refer in detail to the numerous scantily reported and conflicting rulings on the point at Nisi Prius, which are dealt with in that exhaustive judgment. The following cases, which are not referred to, bear out the decision: Woolmer v. Latimer, 1 Jur. 119; Mills and wife v. Spencer and wife, Holt, N. P. 533; Rodriguez v. Tadmire, 2 Esp. 721. The Irish case Bell v. Parke, 11 Ir. C. L. R. 413, is consistent with Scott v. Sampson, except in one point: the Irish judges admitted evidence that the plaintiff had certain vicious habits which would lead him to commit such acts as that ascribed to him in the slander. This ruling will not be followed in England.

But the decision in Scott v. Sampson does not in any way restrict the defendant's liberty of cross-examination. Lord Coleridge did not exclude any question put by the defendant's counsel to any witness called by the plaintiff. Hence I apprehend that Wyatt v. Gore, Holt, N. P. 299; and Snowdon v. Smith, 1 M. & S. 286, n., which were not cited in Scott v. Sampson, as well as Newsam v. Carr, 2 Stark. 69, which is referred to, are still good law. I do not think they are to be considered as overruled by Bracegirdle v. Bailey, 1 F. & F. 536, as in that case the plaintiff had given no evidence in chief, so that questions merely to credit were inadmissible, and, moreover, the questions rejected tended to show that the libel was true, and no justification had been pleaded. (See ante, p. 368.)

And note that Order XXXVI. r. 37, in no way restricts the right of cross-examination; the following rule of the same order attempts to do that; rule 37 does not. It is confined to evidence tendered by the defendant in chief. And further it in no way alters the substantive rules of evidence, but only the procedure relative thereto. It makes no fact admissible in evidence which was not admissible before; it merely defines the proper method of getting admissible facts in evidence. The Divisional Court decided, in Scott v. Sampson, suprà, that evidence of rumours, and evidence of particular facts and circumstances, tending to show misconduct on the part of the plaintiff, could not be admitted in reduction of damages, but only evidence of his general bad character. This still remains good law. But the Court held further that, assuming such evidence to be in other respects admissible, the particular facts and circumstances must be stated or referred to in the Defence, deeming this to be necessary under Order XIX. r. 4. It is to this latter ruling that Order XXXVI. r. 37 is addressed. The pleading is not the proper place for such allegations, which are not material to any issue, but only affect the amount of damages. See Wood v. Earl of Durham,

suprà, and post, p. 597. Yet it is only fair to the plaintiff that he should have some notice before the trial that this peculiarly offensive line will be taken by the defendant. Hence the Rule Committee required particulars of such evidence as is otherwise admissible in mitigation of damages to be stated, no longer in the Defence, but in a special notice to be delivered seven days at least before the trial.

Illustrations.

In an action for words imputing adultery to a widow, Holroyd, J., held that it was competent to the defendant to go into general evidence to impeach the plaintiff's character for chastity.

Ellershaw v. Robinson et ux., (1824) 2 Starkie on Libel, 2nd ed. p. 90. And Lord Tenterden is said to have admitted similar evidence, although a justification was pleaded.

Mawby v. Barber, (1826) 2 Starkie on Evidence, p. 470.

And see Maynard v. Beardsley, 7 Wend. 560.

When such general evidence has been given, the plaintiff's counsel may go into particular instances to rebut it.

Rodriguez v. Tadmire, 2 Esp. 721.

(vi) Absence of Special Damage.

When any special damage is alleged, the onus of proving it lies of course on the plaintiff. The defendant may call evidence to rebut the plaintiff's proof, though he generally prefers to rely upon the cross-examination of the plaintiff's witnesses. He may either dispute that the special damage has occurred at all, or he may argue as a matter of law that it is too remote (see post, p. 381); or he may call evidence to show that it was not the consequence of the defendant's words, but of some other cause. A plaintiff may not recover the same damages for the same injury twice from two different defendants; but he may recover from two different defendants damages proportioned to the injury which each has occasioned. (Harrison v. Pearce, 1 F. & F. 567; 32 L. T. (Old S.) 298; Wyatt v. Gore, Holt, N. P. 299, ante, p. 371.)

(vii) Apology and Amends.

By Lord Campbell's Act (6 & 7 Vict. c. 96), s. 1, it is enacted, 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 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 afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there was an opportunity of making or offering such apology."

And by s. 2, 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 to such plea to such action it shall be competent to the plaintiff to reply generally, denying the whole of such plea." (See Chadwick v. Herapath, 3 C. B. 885; 16 L. J. C. P. 104; 4 D. & L. 653.) Money must be paid into court by way of amends at the time any plea under s. 2 is delivered, or it will be treated as a nullity (8 & 9 Vict. c. 75, s. 2). Hence no other defence denying liability can now be joined with such a plea. (Order XXII. r. 1; and see O'Brien v. Clement, 3 D. & L. 676; 15 M. & W. 435; 15 L. J. Ex. 285; 10 Jur. 395; and Barry v. M'Grath, Ir. R. 3 C. L. 576.) But the fact that such a payment has been made must not be mentioned to the jury. (Order XXII. r. 22.)

There is a difference between the language of the two sections as to the date at which the apology must appear; but they both mean the same thing. It will not be sufficient for the defendant under