a deceased actress, he had extorted a sum of £500 from A. G. CHAP. XVIII. Defence (inter alia) that the defamatory matter was true in substance and in fact. It was held, that evidence that there were rumours, before the publication of the libel, to the same. effect as the allegations contained in the libel, were inadmissible in mitigation of damages: that both principle and authority were against the reception of such evidence; and that since the Judicature Act and Rules of procedure which require that the "material facts" on which the defendant relies should be stated on the pleadings, even if the evidence were admissible, the defendant could not be allowed to avail himself of it, as he had not stated his intention of so doing in his pleading (d). as to circum which libel or Upon compliance with the rule above stated, evidence may Evidence in be given in mitigation of damages, of the circumstances under mitigation, which the defendant published the libel or slander. This stances under includes all cases in which no justification stands upon the slander record; but in which the defendant relies on certain circum- published. stances in mitigation: as for instance the source from which the defamatory matter was derived; that it was published in vindication of character; so also circumstances showing provocation by reason of matter previously published by the plaintiff of the defendant. libels when admissible. There can be no set-off of one libel, or act of misconduct, Counteragainst another (e); but, in estimating the damages, the jury may fairly consider the conduct of the plaintiff, and the degree of respect which he himself has shown for the feelings of others (f). Nor can any previous bickering between the parties be brought forward as a set-off to a libel; but at the utmost as a circumstance in mitigation of damages (g). damages The defendant is at liberty to give in evidence in mitigation Evidence in of damages, that the plaintiff has already recovered (or has mitigation that brought actions for) damages, or has received, or agreed to recovered or receive, compensation in respect of a libel or libels to the sought in other same purport or effect as the libel for which such action has been brought (h). actions. General evidence that the plaintiff has been in the habit of Where Plaintiff CHAP. XVIII. libelling the defendant, is inadmissible (i). But it is evidence, it has been said, in mitigation of damages (k). The latter, however, of these positions is too large, and it seems that, at most, the defendant cannot be allowed to do more than prove the publication of libels by the plaintiff, which are connected with the libel which is the subject of the action (). Therefore, libels published by the plaintiff of the defendant, of an earlier date, and in direct relation to the libel declared on, may be given in evidence for the purpose of mitigating the damages; as where such previous libels constitute the provocation to the principal libel. It seems, however, to be clear in principle that the libels themselves ought to be strictly proved (m). CHAPTER XIX. CHAPTER XIX. TRIAL, PROCEEDINGS AT, IN ACTIONS OF SLANDER AND LIBEL. Mode of Trial: Special Jury. Direction of the Judge to the Jury. Libel or no libel as a question for the When verdict of Jury will be set aside. ACTIONS of slander and libel must (except by consent as Mode of trial. provided by the following rules) be tried by a judge with a jury. Under the R. S. C. (a), in actions of slander and libel, the plaintiff may in his notice of trial, and the defendant may upon giving notice within four days from the time of service of notice of trial, signify his desire to have the issues of fact tried by a judge with a jury, and thereupon the same shall be so tried. By rule 4, the court or a judge is empowered (as to causes formerly triable without a jury) to direct any question or issue of fact, or partly of fact and partly of law, to be tried without a jury. But as actions of slander and libel were not so triable (m) Tarpley v. Blahey, 2 Bing. N. C. (i) Wakley v. Johnson, 1 Ry. & Moo. (k) Finnerty v. Tipper, 2 Camp. 76. 437. (a) Ord. XXXVI., r. 2. prior to the Judicature Act, neither the court nor a judge has CHAPTER XIX, any power under this rule, without the consent of parties, to direct such actions to be tried without a jury. In the absence of any notice under rule 2 (supra), in the case of an action in the Chancery Division, to restrain the publication of a trade circular, imputing that the plaintiff's goods were spurious, it has been ruled, that the issues of fact may be tried by a judge without a jury: and that it will be too late when the action comes on for trial, after all the evidence has been given, to object that the issues of fact should have been submitted to a jury (b). The plaintiff may have the issues tried by a special jury Special Jury. upon giving notice in writing to that effect to the defendant at the time when he gives notice of trial. And the defendant is entitled to the like privilege, on giving notice in writing at any time after the close of the pleadings, and before notice of trial; or if notice of trial has been given, then not less than six clear days before the day for which notice of trial has been given. Provided that a judge may, at any time, make an order for a special jury, upon such terms, if any, as to costs and otherwise, as may be just (c). or postpone The judge may, if he thinks it expedient for the interests of Adjournment, justice, postpone or adjourn the trial for such time, and ment, of trial. to such place, and upon such terms, if any, as he shall think fit (d). The postponement of the trial of an action of libel or slander, upon affidavit, on the ground of the absence of a material witness, is entirely within the discretion of the judge at Nisi Prius (e). In an action of libel, where a justification was pleaded, the court, even after notice of trial, on the application of the defendant, put off the trial to enable him to procure the attendance of witnesses from abroad (the sources of the proposed evidence being particularly pointed out in the affidavit), but imposed the terms, of his undertaking to admit upon the trial the publication of the alleged libel (f). Under the former practice, when a justification was pleaded Affirmative Issue: Right without the general issue, the defendant was entitled to to begin. CHAPTER XIX. begin (g). Time of giving Evidence to rebut Justification. The libel itself must be produced at the trial. Defendant entitled to have the whole details. If libellous articles in a Newspaper are But, it was stated by Tindal, C.J. (when the question arose before him on the trial of an action of libel, in which the only plea on the record was one which professed to justify the libel on the ground of its truth), that the judges had come to a resolution that the plaintiff should in future begin on the trial of all actions for personal injuries, and also in slander and libel, notwithstanding that the general issue be not pleaded, and that the affirmative be on the defendant (h); and such appears to have been the general practice ever since. Where issues are joined on affirmative pleas of justification, the plaintiff's counsel may either in the first instance rebut the justification, or he may wait till the defendant has offered affirmative evidence in proof of his justification; but he cannot divide his proof by giving part in evidence in the first instance and part afterwards (i). The libel itself should be produced at the trial, and shown or read to the jury, who have a right in all cases to see it (k). If it has been lost or destroyed, secondary evidence of its contents may be given, under conditions already stated (l). The defendant, according to the ordinary rule, is entitled to have the whole of the publication read, from which the passages charged as libellous are extracts (m); or the whole of the conversation in which the slander complained of was spoken, detailed in evidence; for he is entitled to show by the whole context, that the defamatory matter was not in fact used in an actionable sense. And where a letter of the defendant's was read, which referred to an account of the transaction related in a newspaper, that newspaper, it was ruled, was evidence (n). In an action for a libel contained in a newspaper, the defendant has a right to have read, as part of the plaintiff's put in as part case, another part of the same newspaper referred to in the libel complained of (o). And where the plaintiff proposed dant may have to put in evidence the newspapers containing the alleged libels, other parts of of Plaintiff's case, Defen same paper read. (g) Cooper v. Wakley, 1 Moo. & (h) Carter v. Jones, 6 C. & P. 64. (k) Wright v. Woodgate, 2 C. M. & R. 573; Gilpin v. Fowler, 23 L. J. Ex. 156. (1) Supra, p. 274-5. (m) Cooke v. Hughes, 1 R. & M. 112, per Abbott, L.C.J. (n) Wearer v. Lloyd, 2 C. & P. 296 ; cor. Garrow, B. (0) Thornton v. Stephen, 2 M. & Rob. 45, per Lord Denman, C.J. for the purpose of having only the libellous articles read; this CHAPTER XIX. was objected to on the part of the defendant, who claimed to have the whole put in as part of the plaintiff's case, and to enable the defendant to call attention to certain evidence published in the same paper with the articles, and upon which they were based. Cockburn, L.C.J., after consulting Blackburn, J., ruled, that as the articles in question referred to the other proceedings, the whole must be put in as part of the plaintiff's evidence (p). But where a paragraph in a subsequent number of a newspaper, is given in evidence by the plaintiff for the purpose of proving malice, the defendant is not entitled to have read, out of the same newspaper, other paragraphs having no reference to the one read by the plaintiff (q). Where an author brought an action against the defendant for an alleged libel contained in a criticism on his book; it was ruled, that where there was no direct personal imputation, and the alleged libel was entirely by way of professed criticism, it was properly part of the plaintiff's case to put the book in, in order to show that the criticism was malicious (r). The Libel Act (1792) 32 Geo. III. c. 60,-by which the jury Libel or no Libel as a are to find as a fact whether or not the matter charged is a question of libel; and the judge, in his discretion, is to state to the jury fact for the Jury. his opinion and direction on the matter in issue,-does not apply to civil actions, but only to the trials of indictments and criminal informations. It has, however, been the constant practice since the cases of Parmiter v. Coupland (s), and Baylis v. Lawrence (t), in civil as well as criminal trials, for the judge to direct the jury what in law constitutes a libel, and then to leave it to them to say whether the publication in question falls within that direction. And the jury must accept the law as laid down by the judge, and find their verdict according to the evidence. The statute was never intended to take from the court the power of deciding whether certain words are per se libellous or not (u). And where a libellous construction has been put upon the publication by an innuendo, it is the duty of the judge to say whether the publication is capable of the construction so (p) Hedley v. Barlow and another, 4 F. & F. 227. (g) Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J. Ex. 229. (r) Strauss v. Francis, 4 F. & F. 1110, per Cockburn, L.C.J., and on the previous trial of this case, so ruled (8) 6 M. & W. 105. (t) 11 A. & E. 920. (u) See Reeves v. Templar, 2 Jur. 137, per Lord Abinger, C.B. |