But where, by the desire and consent of both parties, and with CHAP. XVII. a view of avoiding the delay and expense of further affidavits, the documents themselves are submitted to the judge at Chambers for his decision, an appeal from the decision of the judge so given will not be permitted (y). Where the plaintiff (a servant) having brought an action against his former master, for alleged libels contained in certain letters written by such master in reply to inquiries as to the character of the plaintiff the defendant having admitted, in answer to interrogatories, that he held copies of the letters he had written: on an application for an order for leave to inspect and take copies of such copy letters, it was held, that the plaintiff was entitled to the order. And upon the question as to whether the defendant could refuse to produce them on the ground that their production might tend to expose him to crimina proceedings for libel, the court were clearly of opinion that even if such ground were available to the defendant he could only avail himself of it on such terms as it could avail him in answering interrogatories, or giving other discovery; viz., upon his pledging his oath that to the best of his knowledge, information, and belief, the production of the copy letters would tend to criminate him. But upon the question as to whether they would then be protected from production, the court declined to express an opinion, preferring to keep their judgments open upon that point; their opinion upon the question not being necessary for the decision of the case then before them (z). It was also held, in the same case, to be no Inspection of sufficient objection to the production by the defendant of a document in his possession, alleged to be libellous, that it is a occasion. privileged communication: for although a defamatory communication may be privileged in the sense that it is not actionable, because it was made on a privileged occasion; still that affords no ground of privilege from production and inspection by the plaintiff in an action for an alleged libel contained in it (a). letters written on a privileged libel not in A party cannot be compelled to answer from memory, an Discovery as to interrogatory as to the contents of a written document not in contents of his possession, and as to which he makes oath that he has no party's recollection (b). C. A. (1897), 2 Q. B. 188; and see (y) Bustros and others v. White, 1 Q. B. D. 427; 45 L. J 645. (2) Webb v. East, 5 Q. B. D. 108; 49 L. J. 250. (a) Ibid. (b) Dalrymple v. Leslie, 51 L. J. Q. B. D. 61; 30 W. R. 106. possession. CHAP. XVII. Before filing declaration, plaintiff gave the defendant notice. Where the libel of his intention to move for a rule for the production of the is destroyed. letter containing the words of the libel as set out in the decla Privilege as to official com munications ration. An affidavit in answer, by the defendant, stated that he, the defendant, had destroyed the letter; but made no objection to the terms of the alleged libel set out in the plaintiff's affidavit it was held, that the plaintiff's affidavit, being merely for the purpose of the production of the letter, was not admissible in evidence to prove the words of the libel (c). Upon principles of public policy, official communications between public officers, as such, upon matters relating to the between Public public service, and the acts, conduct, and capacity, of persons employed in such service, are privileged from disclosure in courts of law (d). Officers. State Documents, privilege as to State papers, and other documents relating to the public service, are, on grounds of public policy, privileged from inproduction of. spection, and production in courts of law; when such inspection or production would be prejudicial to the State, the public service, or the public interests. And accordingly, it has been held, that if the production of a state paper would be injurious to the public service, the public interest must be considered paramount to the individual interest of a suitor in a court of justice; therefore, if the head officer of the department, having the custody of the document, refuse to produce it on that ground, a judge has no power to compel him (e). Letters by private persons to public officers. Communica And reports made in the discharge of the duties of their respective offices, by Government officials, to the Crown, or its representatives, are State documents; and their production in a court of justice, at the suit of a particular individual, cannot be enforced (f). But letters by private individuals complaining of the conduct of public servants, written to persons in a superior capacity as public officers, whether of the Government or otherwise, are not privileged from disclosure on the mere ground that they are official communications (g). As to the rule which protects from production or discovery tions between confidential communications between a client and his legal Client and legal adviser: privilege as to discovery. (c) Rainy (App.) and Bravo (Resp.), L. R. 4 P. C. 287; 20 W. R. 873. (d) Earl and others v. Vass, 1 Shaw, App. Cas. 229; Boyd Kinnear's Dig. H. L. Cas. 226. (e) Beatson v. Skene, 4 H. & N. 839; 29 L. J. Ex. 430. (f) M'Elveney v. Connellan, 17 Ir. C. L. R. 55; Fitzgibbon v. Greer, Ir. R. 9 C. L. S. 294; Stace v. Griffith, L. R. 2 P. C. 420; Hennessy v. Wright, 21 Q. B. D. 509; 57 L. J. 530. (g) Blake v. Pilfold, 1 Moo. & Rob. 198, per Taunton, J. adviser; the old rule was, that every document in the posses- CHAP. XVII. sion of a party to the suit must be produced if it was material or relevant to the issue, unless it was covered by some established privilege: and then it was established that communications that had passed between a client and his solicitor were privileged; and not only communications from the client to his solicitor, but from the solicitor to the client. The principle upon which this rule was based is, that you have no right to see your adversary's brief, nor the materials for the brief (h). The general principle that communications made to and by a solicitor, in the regular course of professional employment, are privileged from discovery, extends to the case of a solicitor, personally a defendant in an action, who is called upon to answer interrogatories, the answers to which would disclose facts and information obtained by him in his confidential capacity as solicitor for a client in another action (i). And it was held, that the privilege claimed in such case, is not that of the solicitor, but that of his client (k). And so also, the draft of an advertisement submitted to, and to be settled by counsel, with a view to publication in a newspaper, is privileged from production to a defendant in an action for an alleged libel contained in such advertisement: such a document being within the rule as to professional privilege laid down in the preceding cases (1). of Heralds' A pursuivant of the Heralds' College is not in the position Pursuivant of a legal adviser; and has no privilege as to communications College: no between himself and a person employing him, about a pedigree privilege as to. in the Heralds' College (m). (h) Vide Greenough v. Gaskell, 1 Myl. & K. 98; Reid v. Langlois, 1 Mac. & G. 627; 19 L. J. Ch. 337; Anderson v. Bank of British Columbia, 2 Ch. D. 644; 45 L. J. 450. (i) Procter v. Smiles and others, 55 L. J. Q. B. D. 467. (k) Ibid. (on App.), p. 527. (1) Lowden v. Blakey, 23 Q. B. D. 332; 58 L. J. 617. (m) Slade v. Tucker, 14 Ch. D. 824; 49 L. J. 645. 294 CHAP. XVIII. CHAPTER XVIII. DEFENDANT'S PROOFS. Evidence, how affected by the Rules of Evidence in Denial of the prefatory What are questions of law for Judge, Duty and interest, as grounds of privi- Truth as a Justification in Ciril Proceedings. Evidence in support of Justification. Skilled witnesses, opinions of. Apology, and Offer of Apology. THE mode of pleading the defence to actions of slander and Evidence, how libel being, as already shown, materially altered by the Orders affected by the and Rules of procedure under the Judicature Acts; and the Rules of Procedure. Evidence in denial of the prefatory allegations. plea of the general issue being thereby abolished (except as to the plea of "not guilty" by statute), the law having special reference to the evidence formerly available to the defendant under that comprehensive issue, will no longer have the prominent importance attached to it in some of the earlier editions of this work. Under the former procedure, in actions for defamation, whether in the form of slander or libel, the defendant might, under the general issue, give evidence in denial of the publication of the defamatory matter, of the publication of it maliciously and in the defamatory sense alleged in the declaration, or in any other defamatory actionable sense which the words themselves conveyed (a). But under the present rules of pleading, all material facts on which the defendant relies for his defence must be pleaded in a summary form; but not the evidence by which they are to be proved (b). And every allegation of fact in the statement of claim, if not denied specifically or by necessary implication, or stated to be not admitted, will be taken to be admitted (c). The defendant will not, therefore, be allowed to give any evidence to contradict the prefatory allegations in the statement of claim, unless they are denied in the manner stated in (a) C. L. P. Act, 1852, sec. 61. (b) Vide R. S. C., Ord. XIX., r. 4. (c) Ibid., r. 13. the rule last mentioned. And this was so even before the new CHAP. XVIII. rules of procedure (d). If the publication is denied, it will be incumbent on the Denial of the plaintiff to establish at the outset, a case of publication against Publication. the defendant. Until such proof is given, there can be no case for the defendant to answer. If the plaintiff give evidence showing a prima facie publication by the defendant, the latter may then give evidence to disprove such publication; or to show that he was the mere innocent agent of another, and that he was wholly ignorant that the paper contained a libel: as by showing that he was the mere bearer or carrier of a parcel, the contents of which he was wholly ignorant of (e): or, as appears by a recent decision, he may show that he was a newsvendor, and sold the paper containing the libel in entire ignorance that it contained such (ƒ). of Plaintiff in show that The plaintiff cannot recover if the vocation in which he is In Defamation libelled be an illegal one; as in a case where the plaintiff his vocation, complained of having been libelled in his vocation as an Defendant may exhibitor of sparring matches (g). Nor does an action lie for vocation illegal. a libel against a party touching his conduct in any illegal transaction (). But where the matter is independent of the illegal transaction, though arising out of it, the action will lie. As in a case where the libel charged, imputed to the plaintiff fraud in horse-racing, by betting largely against his own horse, and then withdrawing it from the race: it was held, that there was no illegality in horse-racing, in the absence of fraud; and even if it were altogether prohibited by law, still the party infringing its provisions would not thereby be deprived of all protection to his character in other matters arising out of the transaction (i). Where the plaintiff was described as a manufacturer of bitters, evidence was given to show that the plaintiff's trade was illegal; that a large quantity of the commodity had been seized and condemned by the excise; and that, under the pretence of manufacturing bitters, he manufactured an article of an entirely different description, which he sold to publicans for adulterating porter; such evidence being received as proof (d) Vide Greene v. Sharpe, 1 Car. & Mar. 533, per Patteson, J. And see Heming v. Power, 10 M. & W. 568; Fradley v. Fradley, 8 C. & P. 572, per Lord Abinger, C.B.; Dance v. Robson, Moo. & Mal. 296, per Lord Tenterden, C.J. (e) Vide Day v. Bream, supra, p. 270. (f) Emmens v. Pottle, supra, p. 270. (g) Hunt v. Bell, 1 Bing. 1; 7 Moore, 212. (h) Yrisarri v. Clement, 3 Bing. 432. (i) Greville v. Chapman and others, 5 Q. B. 731, 744. |