Part II. CHAPTER XV. the pardon be general or special, of which the defendant might have been ignorant, for that every person who publishes slanderous words does it at his peril. Justification In an action for a libel, published in a newspaper, imputing to the editor of another newspaper that he was "a convicted felon," and "a bankrupt and felon editor." The defendant “felon editor.” justified, that the plaintiff had been convicted of felony, and was sentenced to 12 months hard labour, for stealing feathers; and that the article complained of was a bonâ fide comment upon the conduct of the plaintiff in his character of editor of the said newspaper. The reply alleged that the plaintiff endured the punishment for which he was adjudged for the supposed felony, and thereby became and was in the same position as if a pardon under the Great Seal had been granted. On demurrer to the plea of justification, it was held to be no justification that the plaintiff had been convicted of felony, without showing that he had actually committed the felony. Held also, on demurrer, that the plaintiff was entitled to judgment on the reply. And per Brett and Cotton, L.JJ., a person convicted of felony, after enduring the punishment is in law no longer a felon; the justification was therefore bad for not alleging that, as to the imputation "felon editor," the plaintiff was then enduring his punishment (h). General pleas are bad. Though the charge imputed to the plaintiff be general, the of justification defendant must, in his defence by way of justification, charge specific instances of offences of the same nature with the general charge; for whenever one charges another with fraud, he must know the particular instances upon which his accusation is founded, and therefore ought to disclose them, either in his defence or by particulars delivered therewith (i). A plea which simply adopts the sense imputed to the words by the innuendo, but does not justify them in the same sense, has been held a bad plea (k). Rule of law as to. It has long been a well-established rule of law that in slander, as well as in libel, where the charge is general in its nature, if the defendant desires to justify the charge as true, he must state some specific instances of the misconduct imputed to the plaintiff (); either on the face of his defence or by particulars 16 G. 3; 2 Chit. Rep. 665. (h) Leyman v. Latimer, 3 Ex. D. 15, 352; 46 L. J. 765; 47 L. J. 470. (i) I'Anson v. Stuart, 1 T. R. 748; Behrens and others v. Allen, 8 Jur. (N. S.) 118; Morris v. Langdale, 2 B. & P. 284; Newman v. Bailey, Hil. (k) White v. Tyrrell, 5 Ir. C. L. R. (N. S.) 498. (1) Hickinbotham v. Leach, 10 M. & W. 361, per Parke, B.; and see Burgess v. Beaumont, 7 M. & Gr. 962. delivered therewith; otherwise the justification may be CHAPTER XV. struck out (m). Part II. support of The particulars relied on in support of a general plea of Particulars in justification should be as explicit as the former plea of justifi- general plea of cation was required to be under the old system of pleading. justification. And accordingly where the charge was in general terms, that the plaintiffs were "Charity Swindlers" and "Impostors," and that the Home they kept was "a monstrous swindle": the defendant pleaded generally by way of justification, that the statements complained of were true in substance and in fact; it was held, that he must state specificially, in his particulars, the facts and instances on which he intended to rely in support of such a general justification; and that he could not refuse to do so on the ground, merely, that he would thereby have to disclose the names of the witnesses he proposed to call at the trial (n). Where the defence is one of fair comment, only, and there is no plea of justification, the plaintiff is not entitled to particulars (o). In the review of a book of which the plaintiff was author, the defendants published a statement that the author was, by his own confession "a most barefaced liar." In an action of libel the defendants pleaded that so far as the alleged libel was a matter of fact it was true; and so far as it was a matter of criticism it was published bona fide: it was held, that the plaintiff was entitled to particulars specifying the pages in the book where the passages relied on occurred (p). Where to an action of libel, the defendant pleaded a denial Double or embarrassing of the meaning alleged in the statement of claim, or "of any defence. meaning defamatory of the plaintiff"; and then alleged that the libel was true in substance and in fact; this was held to be a double defence, founded on separate and distinct facts; and that on account of the generality and embarrassing nature of the pleading, the plaintiff was entitled to particulars of the facts relied upon in justification (q). It is necessary that the matter justified as true, should in The matter every respect correspond with the imputation complained of. (m) Jones v. Bewicke, L. R. 5 C. P. 32; Gourley v. Plimsoll, 42 L. J. C. P. 121. (n) Zierenberg and wife v. Labou chere (1893), 2 Q. B. 185; 63 L. J. 90 ; and see Hewson v. Cleere (1904), 2 K. B. D. (Ir.) 536, as to waiving right to particulars. (0) Digby v. The Financial News, (p) Devereux v. Clarke and another, justified must be identical with that charged. Part II. CHAPTER XV. Thus, where the defendant charges the plaintiff with having feloniously stolen one kind of chattel, he will not be permitted to justify by pleading that the plaintiff had been guilty of stealing a different one (r). And so with regard to every circumstance at all material, the facts set up by way of justification, must be strictly conformable to the imputation charged (s). And a defendant will not be allowed, in his pleading, to impute another meaning to his words, different to that alleged by the plaintiff in his innuendo, and then to justify the words. Nor will he be allowed to bring forward a charge connected with the alleged libel, but of which the plaintiff has not complained, and then to justify such charge (t). When defence sufficient if substance of charge justified. Not necessary If a libel charges the commission of several crimes, or the commission of a crime, in a particular manner, it is necessary to justify the charge as to the number of crimes (u), or the manner of committing the crime. If the crime is charged under circumstances of aggravation, the justification should cover the aggravating circumstances as well as the crime (x). Still, it is sufficient, where the charge is general in its terms, if the substance of the libel be justified (y). And where the defendants published a placard headed “Caution," containing the plaintiff's name and address, and stating that he had been convicted of travelling on their railway without having first paid his fare. In an action for the libel, the declaration contained an innuendo that the defendants meant thereby that the plaintiff had attempted to defraud the company; the defendants pleaded a justification to the effect that the plaintiff was so charged and convicted as in the declaration mentioned; and it was held, on demurrer, that the plea was good, as containing a justification of the libel in the terms alleged in the innuendo (z). It is not necessary that the justification should extend to to justify every every epithet of the defamatory matter, however offensive, unless each contains a different and distinct charge to that epithet. (r) Hilsden v. Mercer, Cro. J. 676. (u) Clarke v. Taylor, 2 Bing. N. C. 654. (x) Helsham v. Blackwood and another, 11 C. B. 129; 20 L. J. C. P. 187; Goodburne v. Bowman and others, 9 Bing. 532. (y) Edwards v. Bell, 1 Bing. 403; and see Tighe v. Cooper, 7 E. & B. 39; 26 L. J. Q. B. 215. (z) Biggs v. G. E. Ry. Co., 18 L. T. (N. S.) 482; 16 W. R 908; Alexander v. N. E. Ry. Co., 6 B. & S. 340. Part II. which the plea professes to justify (a). But in all cases, as CHAPTER XV. sting of the charge: parts of the Pleas professing to justify the entire libel, but in effect All material leaving uncovered a material part of it, have always been held libel must be bad (c). And where the libel complained of was contained in covered by the justification. a report of the trial of the plaintiff for murder; on which he was acquitted: the report in question appeared in a magazine twenty years after the trial took place, and alluded to a "damning piece of evidence" which was not elicited at the trial: it was held, that a plea which professed to justify the whole charge, but left uncovered the latter imputation, was bad (d). So also in an action for a libel contained in two letters published in a newspaper, the defendant pleaded, by way of justification, that the second letter (which in itself contained a distinct substantive libel) was a fair comment upon the facts stated in the first letter; it was held, on demurrer, to be a bad plea (e). divisible state If a libel contain statements that are divisible, one or more Justification of of such statements may be justified apart from the rest, if a ments in a proper justification can be made out (f). But a defendant has Libel. no right to select for justification a part of a libel, which, standing alone, would possibly not be actionable (g). For, although he may separate and distinctly justify different parts, where each part imports a distinct charge; if he omit a part it becomes a question whether the part so omitted would of itself afford ground of action. And if a libellous construction be put upon such part by innuendo, it must be answered (h). If the part not justified contain libellous matter, the defendant (a) Morrison and another v. Harmer and another, 3 Bing. N. C. 759; 4 Scott, 524. (b) Edwards v. Bell, 1 Bing. 409; Lay v. Lawson, 4 A. &. E. 795. (c) Clarkson v. Lawson, 6 Bing. 273; Eaton v. Johns, 1 Dowl. (N. S.) 602; Edsall v. Russell, 4 M. & Gr. 1090; 5 Scott, N. R. 801; Ingram v. Lawson, 5 Bing. N. C. 66; 6 Scott, 775; Cooper v. Lawson, 8 A. & E. 746; Smith v. Parker, 13 M. & W. 459; 2 Dowl. & L. 394. (d) Helsham V. Blackwood and another, 11 C. B. 111; 20 L. J. C. P. (e) Walker v. Brogden, 19 C. B. (N. S.) 65; and see Mountney v. Watton, 2 B. & Adol. 673. (f) Clarkson v. Lawson, 6 Bing. 587; and see M' Gregor v. Gregory, 11 M. & W. 294; 2 Dowl. P. C. N. S 769; Mountney v. Watton, 2 B. & Adol. 673; Biddulph v. Chamberlayne, 17 Q. B: 351; Fleming v. Dollar, infra. (g) Roberts v. Brown, 4 M. & Sc. 407; Edsall v. Russell, M. & Gr. 1090. (h) Clarke v. Taylor and another, 2 Bing. N. C. 654; 3 Scott, 95. CHAPTER XV. is liable in damages for that which is uncovered by the justifiPart II. cation; though if the matter unjustified do not contain any substantive imputation, and the jury find that the justification is proved, and give a verdict for the defendants, the court will not disturb the verdict (i). Pleading to Where a declaration contained separate counts for distinct several Counts. libels, the defendant was not allowed to plead simply one general plea of justification to them all (k). And the law remains the same under the R. S. C., whereby a defendant is required to deal specifically with each allegation of fact of which he does not admit the truth (1). That, a fair and accurate report of Under the "Law of Libel Amendment Act, 1888" (m), a statutory defence on the ground of privilege may now be proceedings in pleaded to an action for a libel contained in a newspaper report of proceedings publicly heard in a court of justice. Court. What is a fair and accurate report. Fair report of In a defence pleaded under this section it must be shown, not only that the report is fair and accurate, but that the proceedings were publicly heard before a court exercising judicial authority and further, that the report itself was published contemporaneously with such proceedings. : It has been held, in cases prior to this statute, that a plea professing to justify a report of proceedings before a magistrate on the ground that it was a fair and accurate report, should state the terms of the charge or accusation, not merely the result of it for if the terms in which it was preferred were stated, it might carry with it its own refutation or explanation (n). And therefore it is not sufficient to allege that it is in substance a fair, truthful, and accurate report for the substance is nothing more than the inference which the publisher of the libel has drawn from what passed at the trial (o). Nor is it sufficient to give a short summary of the trial of an action, and after that summary, an outline of the speech of counsel for the defendant (p). It has been held, that it is not sufficient to plead either by way the judgment of justification or as a defence on the ground of privilege, that the publication complained of is a fair and accurate report of the only. (i) Clarke v. Taylor and another, 2 Bing. N. C. 654; 3 Scott, 95; and see Cooper v. Lawson, 8 A. & E. 754. (k) Honess and another v. Stubbs, 7 C. B. (N. S.) 555; 29 L. J. C. P. 220; Fleming v. Dollar, 23 Q. B. D. 388; 58 L. J. 548. (1) Ord. XIX. r. 17. (m) 51 & 52 Vict. c. 64, s. 3. (n) Delegal v. Highley, 3 Bing. N. C. 962. (0) Flint v. Pike, 4 B. & C. 473. (p) Lewis v. Walter, 4 B. & A. 605 ; Lewis v. Levy, E. B. & E. 537; 27 L. J. Q. B. 282. |