such other actions are pending is not admissible in evidence. (Creevy v. Carr, 7 C. & P. 64; ante, p. 316.) Thus, if an author be sued for a libel he has composed, it is no defence that the publisher has been already sued, and heavy damages recovered against him in another action. (Frescoe v. May, 2 F. & F. 123; Harrison v. Pearce, 1 F. & F. 567; 32 L. T. (Old S.) 298; the headnote to the latter case does not state the full force of the ruling of Martin, B.) So, too, that others have previously published the same charges against the plaintiff, and have not been sued, is no justification for the defendant's republication. Still less is it any evidence of the truth of such charges. (R. v. Newman, 1 E. & B. 268; 22 L. J. Q. B. 156; 3 C. & K. 252; Dears. C. C. 85; 17 Jur. 617.) It is wholly immaterial that plaintiff omitted to contradict or complain of such previous publications. (R. v. Holt, 5 T. R. 436; Pankhurst v. Hamilton, 2 Times L. R. 682; and per Maule, J., in Ingram v. Lawson, 9 C. & P. 333.) If, however, the libel purports on the face of it to be derived from a certain newspaper, the defendant may prove in mitigation of damages that a paragraph to the same effect had appeared in that newspaper. (Wyatt v. Gore, 1 Holt, N. P. 303; see also ante, p. 315.) The defendant may not give evidence that there was a rumour current to the same effect as the words he spoke. (Ante, p. 312.) If the defendant relies on sect. 2 of Lord Campbell's Act, he must, as a rule, give some evidence to show affirmatively that there was no gross negligence. (Per Wills, J., in Peters and another v. Edwards and another, 3 Times L. R. 423; and see ante, p. 322.) As to other evidence in mitigation of damages, see ante, pp. 312-324. And now by Order XXXVI. r. 37" In actions for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence." This rule in no way alters the law laid down in Scott v. Sampson (8 Q. B. D. 491; 51 L. J. Q. B. 380; 30 W. R. 541; 46 L. T. 412; 46 J. P. 408), save only that it relieves the defendant from the necessity of pleading such matters in his defence. For the form of the notice under the rule, see Precedent, No. 68, post, p. 656.

Withdrawing a Juror.

Actions of defamation are often compromised before the judge comes to sum up the evidence. A juror is often withdrawn, sometimes at the suggestion of the judge. This means that neither party cares for the case to proceed. If no special terms are agreed on, the effect of withdrawing a juror is that the action is at an end, that no fresh action can be brought on the same libel or slander, and that each party pays his own costs. (See Strauss v. Francis, 4 F. & F. 939, 1107; 15 L. T. 674; Moscati v. Lawson, 7 C. & P. 35, note; Norburn v. Hilliam, L. R. 5 C. P. 129; 39 L. J. C. P. 183; 18 W. R. 602; 22 L. T. 67.) If any other terms be agreed on, they should be indorsed on counsels' briefs, and each indorsement signed by the leading counsel on both sides. Counsel has full authority to make such a compromise, unless expressly forbidden to do so by the client at the time. (Strauss v. Francis, L. R. 1 Q. B. 379; 35 L. J. Q. B. 133; 12 Jur. N. S. 486; 14 W. R. 634; 14 L. T. 326; Davis v. Davis, 13 Ch. D. 861; 28 W. R. 345.) The terms of such a compromise will be strictly enforced, if necessary, by an order of the court. (Riley v. Byrne, 2 B. & Ad. 779; Tardrew v. Brook, 5 B. & Ad. 880.) If after such a compromise the defendant reiterates the libel, the judge may give leave for the action to proceed. (Thomas v. Exeter Flying Post Co., 18 Q. B. D. 822; 56 L. J. Q. B. 313; 56 L. T. 361.)

Summing-up.

The judge now sums up the facts of the case to the jury, and directs them as to the law. (See sect. 22 of Judicature Act, 1875.) He is not bound to state to the jury, as matter of law, whether the publication complained of be a libel or not. (Baylis v. Lawrence, 11 A. & E. 920; Hearne v. Stowell, 12 A. & E. 719; 11 L. J. Q. B. 25; 4 P. & D. 696.) The proper course is for him to define what is a libel in point of law, and to leave it to the jury to say, as men of ordinary intelligence, whether the publication in question falls within that definition. (Parmiter v. Coupland and another, 6 M. & W. 105; approved in Cox v. Lee, L. R. 4 Ex. 284; 38 L. J. Ex. 219; Grant v. Yates, 2 Times L. R. 368.) The jury are bound to take the judge's definition of a libel, and decide in accordance therewith (Levi v. Milne, 4 Bing. 195; 12 Moore, 418); though the question for them, "Libel or no libel," is not precisely the same as "What is the legal definition of an actionable libel ?" (Per Barry, J., in Stannus v. Finlay, Ir. R. 8 C. L. 264.) In a proper case the jury

should also be reminded that the question for them is not "Did the defendant intend to injure the plaintiff ?" but, "Has he in fact injured the plaintiff's reputation ?"

Where other libels, &c., have been given in evidence to prove malice, the judge should caution the jury not to give any damages in respect of them. (Pearson v. Lemaitre, 5 M. & Gr. 700.) But the omission of the judge to give such caution is not a misdirection. (Darby v. Ouseley, 1 H. & N. 1; 25 L. J. Ex. 229.)

Verdict.

The jury now consider their verdict. They should look at the whole of the publication to see whether it is calculated to injure the plaintiff's character, not study detached and isolated sentences. The conclusion may modify the commencement, and if so, "the bane and antidote must be taken together." (Per Alderson, B., in Chalmers v. Payne, 2 C. M. & R. 159; see also Hunt v. Algar and others, 6 C. & P. 245; R. v. Lambert and Perry, 2 Camp. 398.)

Where the words are actionable per se, the amount of damages is entirely a matter for the jury. They are not confined to the pecuniary loss actually sustained by the plaintiff. (Ante, p. 295.) They may consider the libel itself, the mode and extent of publication, and the malice evinced by the defendant. Also, in an action against a newspaper, they may have regard to the gross negligence shown by the editor in allowing the libel to appear in print. (Smith v. Harrison, 1 F. & F. 565.) The jury must assess the damages once for all, as no fresh action can be brought for any subsequent damage. (Fitter v. Veal, 12 Mod. 542; B. N. P. 7; Gregory and another v. Williams, 1 C. & K. 568; ante, pp. 295, 306.) And in assessing the damages, the jury should not regard at all the question of costs. (Poole v. Whitcomb, 12 C. B. N. S. 770; Levi v. Milne, 4 Bing. 915; 12 Moore, 418.) But they cannot find a verdict for the plaintiff without awarding him some damages. (Per Lord Coleridge, C.J., in Wisdom v. Brown, 1 Times L. R. 412.)

Costs.

There is no longer any need to ask for a certificate for the general costs of the suit. The successful party now gets his costs as of right, unless the judge deprives him of them for good cause. (Order LXV. r. 1, ante, p. 365.) Thus, if there be a verdict for the plaintiff for nominal damages only, his counsel should say nothing about costs; it is the duty of the defendant's counsel to ask the judge to interfere. But it is otherwise with special costs, such as costs of a special jury, of a commission to take evidence abroad, or of photographic copies of

the libel: the party who has required these will have to pay for them unless he obtain an order for their allowance on taxation before judgment is entered. (Ante, p. 368.) If a married woman having general separate estate fail in an action of libel or slander, she may be condemned in costs, although her husband was joined with her as a co-plaintiff or a co-defendant. (Newton and wife v. Boodle and others, 4 C. B. 359; 18 L. J. C. P. 73; Morris v. Freeman and wife, 3 P. D. 65; 47 L. J. P. D. & A. 79; 27 W. R. 62; 39 L. T. 125; and see the remarks of Jessel, M.R., in Besant v. Wood, 12 Ch. D. 630; 40 L. T. 453; and sects. 1 and 13 of the Married Women's Property Act, 1882, ante, pp. 396, 401.)

If there is any thought of further proceedings, the unsuccessful party should ask the judge to stay execution; which the judge will do if he thinks there is any ground for an application to the court. The usual order is that execution be stayed for eight days, and if within that time notice of motion be served and £- brought into court, that execution be further stayed till the motion be disposed of.

Proceedings after Judgment.

When judgment has been entered after a trial with a jury, the unsuccessful party must either move the Divisional Court for a new trial under Order XXXIX., notice of which must be served within the times stated in rule 4, and entered before the day named for making the motion; or he may move the Court of Appeal to set aside the judgment on the ground that on the verdict, as entered, the judgment directed was wrong (Order XL. r. 4), or upon exceptions annexed to the record, in accordance with sect. 22 of the Judicature Act, 1875. The Divisional Court has full power under Order XL. r. 10, upon an application for a new trial, to set aside the judgment entered and enter final judgment for the party unsuccessful at the trial, if they are of opinion that the findings and the judgment at the trial cannot stand, and if they have before them all the materials necessary for finally determining the questions in dispute. (Hamilton & Co. v. Johnson & Co., (C. A.) 5 Q. B. D. 263; 49 L. J. Q. B. 155; 28 W. R. 879; 41 L. T. 461.) So, too, if the unsuccessful party moves for judgment in the Court of Appeal, and that court is dissatisfied with the findings as to any matter of fact, it may set aside the verdict and judgment entered, and direct that a new trial shall be had (Order LVIII. r. 5), and vice versâ (Millar v. Toulmin, (C. A.) 17 Q. B. D. 603; 55 L. J. Q. B. 445; 34 W. R. 695).

It is only when the appellant contends that the findings of the jury have not been properly entered, or that, if properly entered, still the

judgment directed thereon is wrong, that he must move the Court of Appeal in the first instance. If he complains of the verdict as recorded, then, although the judge directed such verdict, he must apply to the Divisional Court within the time allowed for a new trial. (Yetts and another v. Foster, (C. A.) 3 C. P. D. 437; 26 W. R. 745; 38 L. T. 742.) Thus, if the judge is asked to direct a verdict for the defendant, on the ground that there is no evidence to go to the jury in support of the plaintiff's case, then, whether he grants or refuses this application, the only course by which his decision can be reviewed is by motion for a new trial in the Divisional Court; for the Court of Appeal, as a rule, will not in the first instance review the finding of a jury. (Davies and others v. Felix and others, (C. A.) 4 Ex. D. 32; 48 L. J. Ex. 3; 27 W. R. 108; 39 L. T. 322; Etty v. Wilson, (C. A.) 3 Ex. D. 359; 47 L. J. Ex. 664; 39 L. T. 83; Clarke v. Midland Railway Co., 44 L. T. 131.) Hence, if the unsuccessful party moves both for a new trial, and also for judgment on the findings as entered, the Divisional Court will hear both motions. (Order XL. r. 5.)

Whenever the action is tried with a jury, even though it was brought in the Chancery Division, any motion for a new trial must be made to a Divisional Court of the Queen's Bench Division. (Order XXXIX. r. 1.) But in all cases where the trial is by a judge without a jury, any application for a new trial must be made direct to the Court of Appeal (ib.), which may either grant a new trial or order judgment to be entered for the appellant, as justice may require, whatever the terms of the notice of motion may be. (Order LVIII. r. 4; Jones v. Hough, (C. A.) 5 Ex. D. 115, 125; 49 L. J. C. P. 211; 42 L. T. 108; Waddell v. Blockey, (C. A.) 10 Ch. D. 416; 27 W. R. 233; 40 L. T. 286.)

New Trial.

An application for a new trial may be made on the ground that the verdict is against the weight of evidence, that the damages are excessive or inadequate, or on the ground of misdirection or surprise. That no notice of trial was given, or that the jury misbehaved, may also be ground for a new trial.

But a new trial will not be granted on the ground of misdirection or improper admission or rejection of evidence, if the party showing cause against it can satisfy the court that no substantial wrong or miscarriage has been thereby occasioned. (Order XXXIX. r. 6; Anthony v. Halstead, 37 L. T. 433; Faund v. Wallace, 35 L. T. 361.) And then the court may grant a new trial as to so much of the matter only as the miscarriage affects, without interfering with the decision