refusal, then, it is said, the remedy of the party is against the witness only. (Sed quære.) If it be a rightful refusal, then secondary evidence is as a rule admitted: as the party has done all in his power to produce primary proof. Even here, however, the privilege arising from considerations of public policy may prevent any evidence being given of the contents of the document. But where the privilege is only of a private character, secondary evidence may be given of the contents of documents privileged from production, e.g., of a document entrusted to a solicitor by his client. (Mills v. Oddy, (1834) 6 C. & P. 728; Doe d. Gilbert v. Ross, (1840) 7 M. & W. 102; Doe d. Loscombe v. Clifford, (1847) 2 C. & K. 448; Newton v. Chaplin, (1850) 10 C. B. 356; Paris v. Levy, (1860) 2 F. & F. 73; Calcraft v. Guest, (1898) 1 Q. B. 759; 67 L. J. Q. B. 505; 46 W. R. 420; 78 L. T. 283.) All questions as to the admissibility of secondary evidence are for the judge, and should be decided by him then and there. (Boyle v. Wiseman, 11 Exch. 360; 24 L. J. Ex. 284; 25 L. T. (Old S.) 203.)

If the words proved differ materially from those set out in the Statement of Claim, this is "a variance" which would formerly have been fatal. (Bell v. Byrne, 13 East, 554; Tabart v. Tipper, 1 Camp. 350; Cartwright v. Wright, 1 D. & Ry. 230; Cook v. Stokes and wife, 1 Moo. & R. 237; Rainy v. Bravo, L. R. 4 P. C. 287; 20 W. R. 873.) But now the judge has ample power to amend the record, if in his discretion he considers such amendment can be made without prejudice to the defendant. (Order XXVIII. rr. 1, 6.) But no amendment will be made, the result of which will be to substitute a totally different cause of action for the former one (C v. Lindsell, 11 J. P. 352), or to render the Statement of Claim demurrable. (Martyn v. Williams, 1 H. & N. 817; 26 L. J. Ex. 117; Caulfield v. Whitworth, 16 W. R. 936; 18 L. T. 527.) The defendant is entitled to an adjournment if he really desires to justify any words newly inserted in the Statement of Claim by such. amendment. (Saunders v. Bate, 1 H. & N. 402. And see Foster v. Pointer, 9 C. & P. 718; May v. Brown, 3 B. & C. 113; Lord Churchill v. Hunt, 2 B. & Ald. 685.)

Proof of the Speaking of the Slander.

In cases of slander, practically the only way to prove publication is by calling those who heard the defendant speak the words. It is not, in strictness, sufficient to prove that the defendant spoke words equivalent to those set out in the Statement of Claim. (Armitage

v. Dunster, (1785) 4 Dougl. 291; Maitland and others v. Goldney and another, (1802) 2 East, 426.) Thus, where the plaintiff alleged that the defendant stated as a fact that "A. could not pay his labourers," and the evidence was that he had asked a question, "Have you heard A. cannot pay his labourers?" the plaintiff was nonsuited. (Barnes v. Holloway, (1799) 8 T. R. 150.) And so where the words alleged in the Declaration were: "This is my umbrella, and he stole it from my back-door," and the words proved by the witnesses were: "It is my umbrella, and he stole it from my back-door," Garrow, B., nonsuited the plaintiff, and the full Court of King's Bench upheld the nonsuit. (Walters v. Mace, (1819) 2 B. & Ald. 756.) But now, if the words proved convey practically the same meaning as the words laid, the variance will be held immaterial, or else the judge will amend. (Dancaster v. Hewson, (1828) 2 Man. & Ry. 176; Sydenham v. Man, (1617) Cro. Jac. 407; Orpwood v. Barkes, vel Parkes, (1827) 4 Bing. 261; 12 Moore, 492; Smith v. Knowelden, (1841) 2 M. & Gr. 561; Ecklin v. Little, (1890) 6 Times L. R. 366.)

It was never necessary, however, to prove all the words set out in the Statement of Claim, provided such of them as are proved are intelligible and actionable by themselves. (Per Lawrence, J., 2 East, 434.) So it is not necessary that all the words set out should be actionable; so long as any of the words proved will maintain the action "the damages may be given entirely; for it shall be intended that the damages were given for the words which are actionable, and that the others were inserted only for aggravation." (2 Wms. Saunders, 171, c.; Chadwick v. Trower, 6 Bing. N. C. at p. 7.)

If the witness committed the words to writing shortly after the defendant uttered them, he may refer to such writing to refresh his memory; but it must be the original memorandum that is referred to, not a fair copy. (Burton v. Plummer, 2 A. & E. 343.) And so where the action is for procuring a libel to be published by making a verbal statement to the reporter of a newspaper, who took it down. in writing; the original writing taken down by the reporter and handed by him to the editor should be produced in Court. (Adams v. Kelly, Ry. & Moo. 157.)

Where the governor of a British colony spoke to the AttorneyGeneral in his official capacity words defamatory of the plaintiff, and the Attorney-General was called as a witness in an action. against the governor, it was held that he was not bound to disclose what the governor had said to him. (Wyatt v. Gore, Holt, N. P. 299.)

If the words spoken be in a foreign language, someone must be called to prove their meaning; and it must be further shown that those who heard them understood that language; else there is no publication. But publication will be presumed where the words are spoken in the vernacular of the locality. (Ante, p. 120.)

Evidence as to the Innuendo.

A Statement of Claim which contains an innuendo is equivalent to a declaration under the old system with two counts, one with an innuendo, and one without. (Per Blackburn, J., in Watkin v. Hall, L. R. 3 Q. B. 402; 37 L. J. Q. B. 125.) Hence, if the plaintiff fails to prove his innuendo, he may fall back on the other count, and succeed on that, if the words in their natural signification are actionable. (Fisher v. Nation Newspaper Co., (1901) 2 Ir. R. 465.) But if the words in their natural meaning are not actionable, then the plaintiff is bound by his innuendo. He must prove that or fail. He cannot now discard the innuendo stated in his pleading and set up a new innuendo which does not appear on the record. (Hunter v. Sharpe, 4 F. & F. 983; 15 L. T. 421; Ruel v. Tatnell, 29 W. R. 172; 43 L. T. 507.) If the words are not actionable even with the meaning ascribed to them by the innuendo (as in Jacobs v. Schmaltz, 62 L. T. 121; 6 Times L. R. 155), or if the words are not reasonably capable of that meaning, the judge will stop the case.

If, however, the words are reasonably capable of the meaning ascribed to them by the innuendo, and in that sense are actionable, still it may be necessary for the plaintiff to call evidence to support his innuendo and to satisfy the jury that the words were in fact understood in that sense. For instance, there may have been facts, known both to the writer and the person to whom he wrote, which could reasonably induce the latter to understand the words in the sense ascribed to them by the innuendo. If so evidence of such facts is admissible. (Capital and Counties Bank v. Henty & Sons, (C. A.) 5 C. P. D. 514; 49 L. J. C. P. 830; (H. L.) 7 App. Cas. 741; 52 L. J. Q. B. 232.) But evidence is not admissible of any fact not known to the persons addressed and to which the defendant does not at the time expressly refer. (Martin v. Loeï, 2 F. & F. 654.)

The plaintiff need not prove the whole of his innuendo. (Prudhomme v. Fraser, 2 A. & E. 645.) It is sufficient if he satisfy the jury that the words bear any actionable meaning alleged in the

innuendo, and refer to himself. Whenever the words used are not well-known and perfectly intelligible English, but are foreign, local, technical, provincial, or obsolete expressions, parol evidence is admissible to explain their meaning, provided such meaning has been properly alleged in the Statement of Claim by an innuendo. The rule is the same where words which have a meaning in ordinary English are yet, in the particular instance before the Court, clearly used not in that ordinary meaning, but in some peculiar sense; as in the case of many slang expressions. But where the words are well-known and perfectly intelligible English, evidence cannot be given to explain that meaning away, unless it is first in some way shown that that meaning is for once inapplicable. This may appear from the words themselves; to give them their ordinary English meaning may make nonsense of them. But if with their ordinary meaning the words are perfectly good sense as they stand, facts must be given in evidence to show that they may have conveyed a special meaning on this particular occasion. After that has been done, a bystander may be asked, "What did you understand by the expression used?" But without such a foundation being laid, the question is not admissible. (Daines v. Hartley, 3 Exch. 200; 18 L. J. Ex. 81; 12 Jur. 1093; Barnett v. Allen, 3 H. & N. 376; 27 L. J. Ex. 415; Humphreys v. Miller, 4 C. & P. 7; Duke of Brunswick v. Harmer, 3 C. & K. 10; Gallagher v. Murton, (1888) 4 Times L. R. 304.) And if it be put and answered, the answer is not evidence; the jury must not act on it. (Simmons v. Mitchell, 6 App. Cas. 156; 50 L. J. P. C. 11; 29 W. R. 401; 43 L. T. 710.) And this is so, whether the word can be found in the last edition of the English dictionary or not. (Homer v. Taunton, 5 H. & N. 661.) Figurative or allegorical terms of a defamatory character, if of well-known import, need no evidence to explain their meaning; e.g., words imputing to a person the qualities of the "frozen snake" in the fable. (Hoare v. Silverlock, 12 Q. B. 624; 17 L. J. Q. B. 306.) Nor do historical allusions or comparisons to odious, notorious, or disreputable persons: where the conduct of the plaintiff, who was an attorney, was compared to that of "Messrs. Quirk, Gammon and Snap," the novel "Ten Thousand a Year" was put in and taken as read. (Woodgate v. Ridout, 4 F. & F. 202.)

Wherever the words sued on are capable of being reasonably understood both in a harmless and in an injurious sense, it will be a question for the jury to decide which meaning was in fact conveyed to the hearers or readers at the time of publication. (Ritchie

& Co. v. Sexton, 64 L. T. 210; 55 J. P. 389.) It will be of no avail for the defendant to urge (except, perhaps, in mitigation of damages) that he intended the words to convey the innocent meaning, if the jury are satisfied that ordinary bystanders or readers would certainly have understood them in the other sense. (Fisher v. Clement, 10 B. & C. 472.) Every man must be taken to have intended the natural and probable consequences of his act. The plaintiff may give evidence of surrounding circumstances from which a defamatory meaning can be inferred; he may call witnesses to state how they understood the libel; though the jury are not bound to adopt the opinions of such witnesses. (Broome v. Gosden, 1 C. B. 732.)

Evidence may also be given to explain and point the charge. Thus it may be shown that the defendant subsequently used the same words or others of the same import with reference to the plaintiff. (Pearce v. Ornsby, 1 M. & Rob. 455; Pearson v. Lemaitre, 5 M. & Gr. 700.)

Proof that the Words refer to the Plaintiff.

If the libel does not name the plaintiff, there may be need of some evidence to show who was meant. The plaintiff may give evidence of all "surrounding circumstances; " i.e., the cause and occasion of publication, later statements made by the defendant, and other extraneous facts which will explain and point the allusion. The plaintiff may also call at the trial his friends or others acquainted with the circumstances, to state that on reading the libel they at once concluded that it was aimed at the plaintiff. (Broome v. Gosden, 1 C. B. 728; R. v. Barnard, Ex parte Lord R. Gower, 43 J. P. 127; ante, p. 144.) It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant. (Bourke v. Warren, 2 C. & P. 310.) Evidence that the plaintiff was jeered at at a public meeting shortly after the publication is admissible to show that his neighbours understood the libel as referring to him. (Cook v. Ward, 4 M. & P. 99; 6 Bing. 412.) So, in Du Bost v. Beresford (2 Camp. 511), Lord Ellenborough held that the declarations made by spectators, while they were looking at a libellous caricature, were admissible in evidence to show whom the figures were intended to represent.

But if the libel does not on the face of it refer to the plaintiff, and there is nothing to connect the plaintiff with it, judgment will be entered for the defendant. (Fournet v. Pearson, Limited, (1897) 14 Times L. R. 82.)