Nonsuit.

Strictly there is no longer such a thing as a nonsuit. Ord. XLI. r. 6 of 1875 has not been re-enacted; and by Ord. XXXVI. r. 39, the judge must direct that judgment be entered, if at all, for one party or the other. Still the word is a convenient one to denote the act of the judge when he withdraws the case from the jury and directs judgment to be entered for the defendant without (or in spite of) their verdict.

It is usually at the close of plaintiff's case that the defendant's counsel submits to the judge that there is no case for him to answer. Some judges, however, decline to consider the question at this stage of the action, unless defendant's counsel at once announces that he intends to call no witnesses.

The judge should direct judgment to be entered for the defendant:

:

(1.) If there is no evidence that the defendant published the words at all or (if the Statute of Limitations be pleaded) that he did so within the period prescribed.

(2.) If there is no evidence that the words refer to the plaintiff.

(3.) If the words proved are not actionable per se, and there is no evidence of any special damage.

(4.) If the words are actionable by reason only of their being spoken of the plaintiff in the way of his office, profession, or trade, and there is no evidence that the words were so spoken, or that the plaintiff held such office or exercised such profession or trade at the time of publication.

(5.) If the words are not actionable in their natural and primary signification, and there is no innuendo; or if the only innuendo puts upon the words a meaning that they cannot possibly bear. If, however, it is reasonably conceivable that those addressed might by reason of any facts known to them have put upon the words the secondary meaning ascribed to them by the innuendo, then it will be a question for the jury in which meaning the words were in fact understood. Whenever the words, though primarily not actionable, are yet reasonably susceptible of a defamatory meaning, the judge should not stop the case; if he does so, the Divisional Court will order a new trial. (Hart and another v. Wall, 2 C. P. D. 146; 46 L. J. C. P. 227; 25 W. R. 373.) "It is only when the judge is satisfied that the publication cannot be a libel, and that, if it is found by the jury to be such, their verdict will be set aside, that he is justified in withdrawing the question from their cognizance." (Per Kelly, C. B., L. R. 4 Exch. at p. 288.) Where the words of the

libel are ambiguous, allegorical, or in any way equivocal, and the jury have found that they were meant and used in a defamatory sense, the court will not set aside their verdict, unless it can be clearly shown that, on reading the whole passage, there is no possible ground for the construction put upon it by the jury. (Hoare v. Silverlock, 12 Q. B. 624; 17 L. J. Q. B. 306; Fray v. Fray, 17 C. B. N. S. 603; 34 L. J. C. P. 45; 10 Jur. N. S. 1153.) But where the words are not reasonably capable of any defamatory meaning, there the judge will be right in directing a nonsuit. (Hunt v. Goodlake, 43 L. J. C. P. 54; 29 L. T. 472; Mulligan v. Cole and others, L. R. 10 Q. B. 549; 44 L. J. Q. B. 153; 33 L. T. 12; ante, p. 117.)

(6.) If the occasion of publication was one of absolute privilege. (7.) If the occasion is clearly or admittedly one of qualified privilege, and there is no evidence, or not more than a scintilla of evidence, of malice to go to the jury. If the evidence adduced to prove malice is equally consistent with either the existence or the nonexistence of malice, the judge should stop the case; for there is nothing to rebut the presumption which the privileged occasion has raised in the defendant's favour. (Somerville v. Hawkins, 10 C. B. 583; 20 L. J. C. P. 131; 15 Jur. 450; Harris v. Thompson, 13 C. B. 333; Taylor v. Hawkins, 16 Q. B. 308; 20 L. J. Q. B. 313; 15 Jur. 746.)

(8.) Where, however, the question of privilege involves matters of fact which are disputed, it will be for the jury to find the facts, and for the judge subsequently to decide whether on the facts so found the occasion is privileged. (Beatson v. Skene, 5 H. & N. 838; 29 L. J. Ex. 430; 6 Jur. N. S. 780; 2 L. T. 378.) And the judge is not bound to rule whether the occasion is privileged or not till after the defendant has called all his witnesses. (Per Cockburn, C.J., in Hancock v. Case, 2 F. & F. 711.)

The judge at the trial has full power to amend any defect or error in any pleading or proceeding on such terms as may seem just (Ord. XXVIII. rr. 1, 6, 12), and to add or strike out, or substitute, a plaintiff or defendant. (Ord. XVI. r. 12.)

Evidence for the Defendant.

The defendant, as we have seen, is entitled to have the whole libel read, or the whole of the conversation, in which the slander was uttered, detailed in evidence. If the alleged libel refers to any other document, the defendant is also entitled to have that document read, as part of the plaintiff's case. (Weaver v. Lloyd, 1 C. & P. 296;

Thornton v. Stephen, 2 M. & Rob. 45; Hedley v. Barlow and another, 4 F. & F. 227.) So where the action is brought for a criticism on the plaintiff's book, no imputation being cast on him personally, it was held that the plaintiff ought to put in the book criticised as part of his own case. (Strauss v. Francis, 4 F. & F. 939, 1107.) This may save the defendant from the necessity of giving any evidence. But where a paragraph in a subsequent number of a newspaper is given in evidence by the plaintiff to show malice, the rest of the newspaper is no part of plaintiff's case, unless it refers to the special paragraph put in. The defendant is, therefore, not entitled to have other passages in that newspaper read. (Darby v. Ouseley, 1 H. & N. 1; 25 L. J. Ex. 227.)

The defendant's counsel often prefers not to call any witnesses, so as to have the last word with the jury. He relies instead on the cross-examination of the plaintiff's witnesses. These may be crossexamined not only as to the facts of the case, but also "to credit;" that is, as to matters not material to the issue, with a view of shaking their whole testimony. But in order to prevent the case from thus branching out into all manner of irrelevant issues, it is wisely provided that on such matters the defendant must take the witness's answer: he cannot call any evidence to contradict it. There is one exception. By sect. 24 of the Common Law Procedure Act, 1854, if a witness in any cause be questioned as to whether he has been convicted of any felony or misdemeanour, and if he either denies the fact, or refuses to answer, the opposite party may prove such conviction, however irrelevant the fact of such conviction may be to the matter in issue in the cause. (Ward v. Sinfield, 49 L. J. C. P. 696; 43 L. T. 253.) The right method of proving a conviction at the Assizes or Quarter Sessions, either for this purpose, or as evidence under a plea of justification, is by a certificate under the Common Law Procedure Act, 1854, s. 25, containing the substance and effect of the indictment and conviction, but omitting the formal parts. Both this section, however, and sect. 6 of 28 & 29 Vict. c. 18, are confined to convictions for felony or misdemeanour on indictment. Hence, where the conviction was at petty sessions only, it was decided, in Hartley v. Hindmarsh (L. R. 1 C. P. 553; 35 L. J. M. C. 255; 12 Jur. N. S. 502; 14 W. R. 862; 13 L. T. 795), that either the record itself must be produced, or an examined copy of it. This involves the trouble and expense of having the record duly made up for the purpose. (Per Byles, J., L. R. 1 C. P. at p. 556.) But since that decision, the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), has become law; and though the rest of this act applies

entirely to criminal proceedings, yet sect. 18 contains the words "in any legal proceeding whatever." Hence certificates under that section are now received without objection in civil as well as criminal proceedings.

The defendant must be careful, however, not to increase, by such cross-examination, the amount of damages that may be given against him. Thus, where the libel consisted of comments in a newspaper on a criminal trial, in which the plaintiff was acquitted, and the defendant's counsel put to the plaintiff a series of questions tending to show that he really had been guilty of the crime with which he was charged, such a course of cross-examination was held a serious aggravation of the libel. (Risk Allah Bey v. Whitehurst, 18 L. T. 615.) Note, however, that Order XXXVI. r. 37, in no way restricts cross-examination; it is confined to evidence called by the defendant in chief.

Where the words are actionable only because they were spoken of the plaintiff in the way of his trade, the defendant may show that such trade is illegal (Hunt v. Bell, 1 Bing. 1), if he has pleaded such defence; and it is no objection to such evidence that it also indirectly proves the truth of the defendant's words. (Manning v. Clement, 7 Bing. 362, 368; 5 M. & P. 211.)

Where it is not alleged that the defendant is the author of the libel, he may give evidence to show that he published it innocently without any knowledge of its contents, as where a porter delivered a sealed packet. (Day v. Bream, 2 M. & Rob. 54.) But in most cases such evidence will only tend to mitigate the damages; it will not be a defence to the action. (See ante, pp. 161, 433.)

The defendant may also give evidence of antecedent conversations and transactions or other circumstances well known to the bystanders, which show that the words were not used in their ordinary signification. Thus, they may have been uttered in joke; or the preceding part of the conversation may limit or qualify the words sued on. But the defendant cannot give in evidence some particular transaction which he had in his mind at the time he spoke, but to which he did not expressly refer, and which was unknown to the person addressed. (Hankinson v. Bilby, 16 M. & W. 442; 2 C. & K. 440; Martin v. Loeï, 2 F. & F. 654; ante, pp. 106-108.) For the question which the jury have to determine is not "What did the defendant intend?" but "What would a reasonable person have understood from the language used?" So, too, where a libel is unambiguous in itself, and does not refer to any other document, the defendant cannot use any other

document for the purpose of explaining away the natural meaning of the libel.

The defendant's counsel may also urge that the occasion of publication was privileged. (See ante, c. VIII. pp. 181-268.) If the facts necessary to raise this defence are not already in evidence, he must call witnesses to prove them. Thus, it is often necessary to put the defendant himself in the box to state the facts as they were presented to him at the date of publication, the information which he received and on which he acted, and all surrounding circumstances. He will also state that he acted bonâ fide, and under a sense of duty. But there is danger in calling the defendant in such a case: he will be severely cross-examined, and may let slip some observation which will be seized upon as evidence of malice. It is better, if possible, by denying the fact of publication, to compel the plaintiff to call those to whom the defendant wrote or spoke, and to elicit from them, in cross-examination, circumstances which show that the occasion was privileged. Statements made to the defendant behind the plaintiff's back, and acts to which he was no party, are admissible in evidence on this issue to show the state of the defendant's mind at the moment when he spoke or wrote the words. (Cockayne v. Hodgkisson, 5 C. & P. 543.)

So where the defence is that the libel complained of is a bona fide comment on certain facts, the defendant is clearly entitled to prove those facts, unless the judge rules that they are not of public interest. The ruling of Patteson, J., in R. v. Brigstock (6 C. & P. 184), would not be followed in these days. Of well-known historical facts the court will of course take judicial notice; all other facts must be proved strictly, and not by hearsay, unless plaintiff will admit them.

But if a publication purports to be a report of a trial, it will, it seems, be assumed in favour of the defendant that such a trial really took place, unless the plaintiff adduces some evidence to the contrary. "We cannot suppose, without proof, that the occurrence of such a trial was mere invention, or that newspapers publish reports of merely imaginary trials." (Per Alderson, B., in Chalmers v. Payne, 5 Tyrw. 769; 2 C. M. & R. 159; 1 Gale, 69.)

The defendant may also prove a justification. The attempt, if unsuccessful, will aggravate the damages. Strict proof must be given that the whole charge made is true in every particular. Books are no evidence of the facts stated in them. (Darby v. Ouseley, 1 H. & N. 1; 25 L. J. Ex. 227; 2 Jur. N. S. 497; Collier v. Simpson, 5 C. & P. 73.) Sometimes a libel contains two or more distinct and severable charges against the plaintiff; if so, it will tend in mitiga