against it by one of its own members (Howden v. Yorkshire Miners' Association, (1903) 1 K. B. 308; 72 L. J. K. B. 176; 88 L. T. 134). Hence, if a trade union publishes a libel its funds will be available to compensate the person defamed (Linaker v. Pilcher and others, (1901) 70 L. J. K. B. 396 ; 49 W. R. 413; 84 L. T. 421; 17 Times L. R. 256, ante, p. 543). If it publishes a black list it may be restrained by injunction. (Trollope & Sons v. London Building Trades Federation, (1895) 72 L. T. 342; 11 Times L. R. 228, 280; Same v. Same, (1896) 12 Times L. R. 373; Newton v. Amalgamated Musicians' Union, (1896) 12 Times L. R. 623.)

If the funds of a trade union be vested in trustees, and an action for libel or slander be brought against the trade union, the trustees should be joined as defendants, so that the funds may be made liable for damages. (Taff Vale Ry. Co. v. Amalgamated Society of Railway Servants, suprà; Glamorgan Coal Co. v. South Wales Miners' Federation, (1903) 2 K. B. 545; 72 L. J. K. B. 893; 89 L. T. 393.)

PART II.

PRACTICE, PROCEDURE, AND EVIDENCE IN CIVIL CASES.

CHAPTER XXII.

LAUNCHING THE ACTION.

AN action of libel or slander should not be lightly undertaken; it is a dangerous experiment; many a plaintiff, even though nominally successful, 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 is 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. Thus, if the libel be on "a certain vicar," no individual vicar should sue, unless by other passages in the libel he is unmistakably identified; otherwise 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 unless his acquaintances generally have reasonably arrived at the same conclusion.

Next, is the charge, or any part of it, true? If so, the plaintiff, by bringing an action, takes the surest method of advertising his 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 contempt."

And even if the charge itself be false, still, if the plaintiff has been at all to blame in the matter, he will be wise not to bring an action. He should consider whether he has not by his own conduct brought the libel or slander on himself. Sometimes it is a defence to an action that the plaintiff challenged or invited the defendant's attack (ante, p. 277); and in every case the defendant may show in mitigation of damages the provocation given by the plaintiff (ante p. 374). A man who has commenced a newspaper controversy comes with a very bad grace to the law courts for assistance against too powerful an adversary. If both parties are to blame, the result of the trial is generally :-Damages, one farthing; each party to pay his own costs. Whenever the plaintiff's conduct, though not morally reprehensible, has yet been indiscreet or unbecoming, or such as would naturally lead people to make unkind remarks, it will be better for him not to sue (see Davis v. Duncan, L. R. 9 C. P. 396; ante, p. 207; and Harnett v. Vise and wife, 5 Ex. D. 307; ante, p. 415). He will have to be cross-examined in open court, and every admission wrung from him will be published in all the county papers; 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 to their dying day will remember with pleasure what a sorry figure he cut in the box.

And wholly apart from the above considerations, Is it worth while to bring an action? Is the matter sufficiently serious? A man does not advance either his dignity or his reputation by showing himself too sensitive to calumny. People will think that he is eager for litigation, because he knows that his character cannot stand the least wear and tear. This remark applies especially 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 by few; it will soon be forgotten; whereas if you bring an action, it will be disseminated throughout the country, and recorded in a permanent shape.

Still, it may be a man's duty to take proceedings, if the charge made against him be really serious. But even in cases of libel, it is better to exhaust every other method first. If the libel has appeared in a newspaper, the person defamed should write to the editor a calm and dignified letter, avoiding all "smart writing," and indulging in no tu quoque. This will probably bring an apology

from the writer of the libel. And a prompt apology and retractation of the charge is always worth more to a plaintiff than any amount of damages. If, however, no apology comes, but another libel worse than the first, the plaintiff's position is improved thereby; for the defendant's persistence in the charge after the explanation afforded is evidence of malice, entitling the plaintiff to heavier damages.

Next, before issuing a writ, the plaintiff should make sure what were the defendant's exact words. He should obtain possession of the original libel, if he possibly can; if he cannot, he should get an accurate copy, and serve the person who holds the original with a notice to preserve it carefully till the trial. With slanders, there is often more difficulty. What has reached the plaintiff's ears may be a highly-exaggerated version of what the defendant actually said. The plaintiff is usually the last person who hears the charge against him; and it has probably grown on each repetition; words not actionable per se are frequently converted into actionable words in the intermediate process. 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 that he did say so, but has since discovered he was mistaken, get him to write you a letter acknowledging his error, to show 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 publication—an admission by the defendant. See the remarks of Lord Denman in Griffiths v. Lewis, 7 Q. B. 61; 14 L. J. Q. B. 199; 9 Jur. 370 (ante, p. 278).

As soon as it is clear what is the precise charge made by the defendant, the next question will be:-Are the words actionable? On this point the plaintiff should take legal advice; see Chapters II., III., and IV., ante, pp. 16-103. If the words are not actionable without special damage, the plaintiff must wait for some damage to accrue before commencing his action.

Parties.

Next the plaintiff must consider who are the proper parties to be named on the writ. There may be parties who must be joined; there may be others whom he may join or not at his pleasure. The plaintiff should, therefore, before issuing his writ, determine

who are the proper plaintiffs and who are the proper defendants in his action. He must also consider whether any of the proposed parties is incapable of suing or being sued in an action for defamation. This subject is dealt with under the "Law of Persons" (see Chapter XXI., ante, p. 529). A Master may at any stage of the proceedings order that the names of any parties improperly joined, whether as plaintiffs or defendants, be struck out, and that the names of any parties who ought to have been joined be added (Order XVI. r. 11). But any amendment of this kind always involves trouble, expense, and delay.

Several Plaintiffs.

As a rule there is only one plaintiff in an action for defamation. If two or more persons are libelled or slandered, even by the same publication, each of them must bring a separate action, unless their causes of action arise out of the same transaction or series of transactions, and involve some common question of law or fact.

Order XVI. r. 1, was amended in 1896, and now runs as follows: "All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where if such persons brought separate actions any common question of law or fact would arise; provided that, if upon the application of any defendant it shall appear that such joinder may embarrass or delay the trial of the action, the Court or a judge may order separate trials, or make such other order as may be expedient, 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, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief, unless the Court or a judge in disposing of the costs shall otherwise direct."

There is a little difficulty in applying the language of this rule, as it now stands, to actions of libel and slander. In such actions. the right to relief arises out of a publication by the defendant. Hence it is submitted that the words "the same transaction" mean "the same publication," and not that the words complained of refer to the same transaction or series of transactions.

Hence, if two or more persons who occupy some position of joint responsibility known to the law (e.g., partners in a firm, co-owners