CHAPTER XIV. with regard to the payment into court, he must distinctly specify as to which of the charges alleged in the statement of claim the payment into court is made; otherwise the whole defence will be struck out as embarrassing (1). Where money paid into Court, and jury find verdict for a farthing only. Damages on judgment by default. Where the action was for damages in respect of three libels published in a newspaper; as to two of which the defendants justified; but as to the third, they pleaded an apology under the Libel Act, 1843 (6 & 7 Vict. cap. 96, sec. 2), and payment into court, under 8 & 9 Vict. cap. 75, sec. 2, of £50 by way of amends at the trial the jury found a verdict for the plaintiff on all the libels, with one farthing damages in respect of each. Upon this verdict, both plaintiff and defendant having claimed the £50, Wills, J., reserved the case for further consideration, when he held, that notwithstanding the verdict for one farthing only, the plaintiff was entitled to an order for the payment out to him of the £50; and that Ord. XXII. r. 22, did not operate so as to deprive the plaintiff of his right to the money paid into court (s). But in a subsequent case (an action of slander) in which the defendant paid £5 into court under the R. S. C. (supra), the jury having found a verdict for the plaintiff, with a farthing damages; the judge ordered (t) the money paid into court, less one farthing, to be paid out to the defendant and the Court of Appeal upheld the order (u). Where the defendant has suffered judgment by default, it is not incumbent on the plaintiff to adduce any evidence, on the execution of the writ of inquiry, to assess the damages; and the jury, in the absence of evidence of damage, are not confined to nominal damages (x). (r) Fleming v. Dollar, 23 Q. B. D. 388; 58 L. J. 548; and vide Ord. XXII. r. 2; and Daris v. Billing, 8 T. L. R. 58. ($) Dunn v. The Devon and Exeter, Se. Newspaper Co., 63 L. J. Q. B. 342; (1895) 1 Q. B. 211 (n.). (u) Gray v. Bartholomew, (1895) 1 Q. B. 209; 64 L. J. 125. (x) Tripp v. Thomas, 3 B. & C. 427. Part I. THE pleadings and procedure in actions of slander and libel CHAPTER XV are, with few exceptions, to be noted hereafter, the same as in other actions of tort. They are regulated by the "Rules of Pleadings and procedure in the Supreme Court," made in pursuance of the authority actions of contained in the Judicature Acts. Although the rules of pleading have been altered in many respects by the Judicature Acts, the law which gave rise to the former mode of pleading remains the same notwithstanding (a). It has therefore been deemed advisable to retain in the text many of the decisions upon various points relating to the pleadings in actions of slander and libel, under the former system of procedure. slander and libel. In actions for libel the indorsement on the writ must state Indorsement on writ. sufficient particulars to identify the publications in respect of which the action is brought (b). It is provided by the R. S. C., 1883 (c), that there shall be Venue. no local venue for the trial of any action, except where otherwise provided by statute, but in every action in every Division the place of trial shall be fixed by the court or a judge (d). Under the former procedure the venue in actions for slander and libel was transitory, and might therefore be laid in any (a) Vide The Capital and Counties Bank v. Henty, 7 App. Cas. 772; 52 L. J. Q. B. D. 249. (b) Ord. III. r. 9. Part I. CHAPTER XV. County, at the option of the plaintiff; but usually in the county in which the cause of action arose. It might then, as now, however, be changed by the consent of the parties, or by order made on application by the defendant to the court or a Application to judge at chambers, supported by an affidavit. But no venue change renue. can be changed without an order of the court or a judge, unless by consent of the parties. Where the cause of action does not arise in the county in which the venue is laid, and the defendant seeks to change the venue to the county in which it arose, it may sometimes be changed on application to a judge at chambers, supported by what is called the "common affidavit " (e). But the application must usually be made before issue joined. If not made till after issue joined, some further or additional reason in support of the application will be required (f): so also if the defendant is under short notice of trial (g), or under terms to take notice of trial for a particular sitting (h). When the common affidavit is answered by the plaintiff on special grounds, it depends on the particular circumstances and balance of convenience, as to whether an order to change the venue will be made (i). Where the application is founded upon the common affidavit of the cause of action arising in a certain county and not elsewhere, it may be made before defence pleaded. But where the application is to change the venue on special grounds, it is usually made after defence pleaded; because, until then, it cannot be known what issue is to be tried (k). Grounds for changing renue. Although witnesses residing in the county in which the libel was received, are intended to be called in mitigation of damages, no justification being pleaded, the venue will not be changed on application by the defendant, notwithstanding that the plaintiff has no witnesses in the county in which he has laid the venue (1). In an action for slander imputing perjury to the plaintiff, before a committee of the House of Commons, the venue was laid in London; the defendant had it changed to the county of Kent on the usual affidavit; but the court, upon affidavits showing that a newspaper, which circulated generally in the county of Kent, had made comments Part I. upon the subject-matter of the action, accompanied by CHAPTER XV. ludicrous animadversions upon the plaintiff, ordered the venue to be brought back, upon terms as to costs (m). But it has been held to be no ground for changing the venue in an action for a libel contained in a local newspaper, that the defendant, the proprietor, possesses much influence in the county in which the venue is laid, and had since the commencement of the action evinced a disposition to exercise it to the prejudice of the plaintiff (n). But the court intimated, in that case, that they would interfere if the defendant should, before the trial, publish anything in relation to the matter of the action reflecting upon the plaintiff. All persons may be joined in one action as plaintiffs, in Parties. 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 (0). editor, of news sued for libel. In the case of a libel published in a newspaper, the pro- Proprietor, prietor, as well as the publisher, editor, and others concerned publisher, and in the printing and publishing of the libel, are each individu- paper, may be ally liable, and may be sued in separate actions. And, under the rules above mentioned, they may be sued either jointly or severally: if jointly, the damages should be separately assessed: and it matters not that other persons may be liable for the same libel. So also, the author of the libel may be sued, notwithstanding that the publisher and others have been sued in separate actions. But where several actions are brought in respect of the same libel, they may, on the application of the defendants to a judge at chambers, be consolidated, so that (m) Pybus v. Scudamore, Arnold's Rep. C. P. 464. (n) Walker v. Brogden, 17 C. B. (N. S.) 571. (0) Ord. XVI. r. 1, as amended by R. S. C., Oct. 26th, 1896. CHAPTER XV. they may be tried together, and the damages, after being Part I. Misjoinder, or parties. assessed in one sum, must then be apportioned by the jury (p). If co-proprietors of a newspaper or other property or business, are jointly libelled, and the injury is joint, then the action should be joint (q). Under the R. S. C., no action shall be defeated by reason nonjoinder, of of the misjoinder of parties. And the court or a judge may, at any stage of the proceedings, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out; and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary, in order to enable the court, effectually and completely, to adjudicate upon and settle all the questions involved in the action, be added (r). Misjoinder of plaintiffs. Partners in trade or business. Where two plaintiffs (a mother and daughter) were joined in an action of slander against the defendants (husband and wife); by the statement of claim it appeared that several distinct slanders were alleged, some of one plaintiff and some of the other; it was held, that these being separate actions the plaintiffs were improperly joined; that they must elect which plaintiff would proceed; and that so much of the statement of claim as related to the other plaintiff must be struck out (8). In an action of libel against the publisher of a newspaper, it appearing (after issue joined) in answer to interrogatories, that one M. G. was the sole proprietor of the newspaper; the court, on the application of the plaintiff, made an order that M. G. should be joined as defendant, subject to all rights to which he would have been entitled if joined in the first instance (t). Any two or more persons claiming or being liable as copartners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action; and any party to an action may in such case apply by summons to a judge for a statement of the names and addresses of the persons who were, at the time of (P) 51 & 52 Vict. c. 64, s. 5. (1) Russell and another v. Webster, (2) R. S. C. 1883, Ord. XVI. r. 11. and another, (1893) 1 Q. B. 771; 62 L. J. 404. (t) Edward v. Lowther, 45 L. J. C. P. D. 417. |