person of the same libel (y). And where no justification has been pleaded, he may not give evidence which tends to prove that the libel is in fact true (2). Thus, where the plaintiff brought an action for slander, alleging that the defendant had accused him of having committed perjury, and the defendant paid 40s. into Court and apologised and then proposed to give evidence under Ord. XXXVI. r. 37 to show that the words were in fact true, Vaughan Williams, J., held that such evidence was inadmissible (a). The defendant may, however, always give evidence to prove that he was not acting maliciously but in good faith. Thus, in Harle v. Catherall and others (b), where the defendant, an editor, declined to discover the name of the writer of the libel, but threw open his columns to the plaintiff, who wrote a number of letters in explanation and contradiction of the charge which the defendant inserted, it was held that the defendant was entitled to prove these facts in mitigation of damages. So, too, in Smith v. Scott (c), where (y) Per Maule, J., in Ingram v. Lawson (1840), 9 C. & P. 333; and Pankhurst v. Hamilton (1886), 2 Times L. R. 682. (z) Smith v. Richardson (1737), Willes, 20; Underwood v. Parks (1744), 2 Strange, 1200; Speck v. Phillips (1839), 5 M. & W. 279; 8 L. J. Ex. 277. (a) Penny v. Stubbs, unreported, tried in the Q. B. D., Feb. 19th, 1892. (b) (1866), 14 L. T. 801. (c) (1847), 2 C. & K. 580. See also Charlton v. Watton (1834), 6 C. & P. 385; Pearson v. Lemaitre (1843), 12 L. J. Q. B. 253; 7 J. P. 336. the libel was contained in an inaccurate report of proceedings in a court of justice, evidence was admitted to show that the inaccuracy was caused by accident, and was not intentional on the part of the defendant. That some other newspaper or individual has previously published the same charges against the plaintiff and has not been sued is no defence, nor is it even admissible as evidence in mitigation of damages (d). If, however, the defamatory statement appears on the face of it to be copied from a certain newspaper or communicated by a particular individual, the defendant may prove in mitigation of damages that a paragraph to the same effect did appear in that newspaper, or that the statement complained of was in fact communicated to him by such person (e). And it would seem that general evidence of bad reputation is admissible in mitigation of damages (ƒ), although evidence of rumours to the same effect as the libel complained of is inadmissible (g). If however the defendant can prove that in copying the libel from another newspaper, or (semble) in repeating the (d) Saunders v. Mills (1829), 6 Bing. 213; 3 M. & P. 520 ; Talbutt v. Clark and another (1840), 2 M. & Rob. 312; Tucker v. Lawson (1886), 2 Times L. R. 593. (e) Duncombe v. Daniell (1837), 8 C. & P. 222; 2 Jur. 32; 1 W. W. & H. 101; per Wightman, J., in Davis v. Cutbush (1859), 1 F. & F. 487. (f) Scott v. Sampson (1882), 8 Q. B. D. 491; 51 L. J. Q. B. 380; 46 L. T. 412; Wood v. Durham (1888), 21 Q. B. D. 501; 57 L. J. Q. B. 547; 57 L. T. 770. (g) Scott v. Sampson, supra. slander, he omitted certain parts which referred in very adverse terms to the plaintiff, the fact that he did so is admissible as evidence to prove absence of malice, and this necessitates the admission in evidence of the original libel(g). And defendant can prove in mitigation of damages that plaintiff had, prior to the publication of the libel complained of, libelled or slandered the defendant, provided that he can also prove that this provoked him to retaliate by publishing the libel sued for (h), but not otherwise (i). NOTE 2.-The third of the above provisions, which was introduced by the Law of Libel Amendment Act, 1888, is very valuable to newspaper proprietors. For example, if prior to that Act a country newspaper had copied a libellous article from a London newspaper, evidence could not be given that the plaintiff had already recovered damages against the London paper for the same article (k). It will be observed that the provision is confined to libels appearing in a newspaper as defined by the Act, so that it has no application to any libel which appears elsewhere, e.g., in a monthly periodical or book (1). (g) Creevey v. Carr (1835), 7 C. & P. 64. (h) Wakley v. Johnson (1826), Ry. & M. 422; Tarpley v. Blabey (1835-36), 2 Bing. N. C. 437; 7 C. & P. 395; Watts v. Fruser and another (1837), 7 A. & E. 223; 7 C. & P. 369. (i) May v. Brown (1824), 3 B. & C. 113; 4 D. & R. 670. (k) Hunt v. Algar and others (1833), 6 C. & P. 245. (7) See p. 98, supra. ART. 45.-Consolidation of actions. It shall be competent for a judge or the Court, upon an application by or on behalf of two or more defendants in actions in respect to the same, or substantially the same, libel, brought by one and the same person, to make an order for the consolidation of such actions, so that they shall be tried together; and after such order has been made, and before the trial of the said actions, the defendants in any new actions instituted in respect to the same, or substantially the same, libel, shall also be entitled to be joined in a common action upon a joint application being made by such new defendants and the defendants in the actions already consolidated (m). NOTE. This is a most valuable provision to newspaper proprietors, and is aimed at preventing the repetition of such cases as Tucker v. Lawson (n) and Colledge v. Pike (o), where a series of actions were brought against different newspapers for the same libel which they had all copied, and heavy damages recovered against each. Prior to the Law of Libel Amendment Act, 1888, it was held (p) that in such a case, inasmuch as there were distinct and separate publications, and consequently the liabilities of the various defendants were different, there could be no consolidation of the actions, and the only relief which the defendants could obtain was in regard to costs, (m) 51 & 52 Vict. c. 64, s. 5. (p) In Colledge v. Pike (1886), 56 L. T. 124. and this was effected by obtaining a stay of all the actions except one. Each defendant was then liable for whatever damages the plaintiff recovered in that action, and by this means a plaintiff could recover enormous damages for what was really the same libel. By this Act, however, such a course is rendered impossible, as the actions may be consolidated; and, as will be seen by the next Article, the jury can now apportion the amount of damages between the defendants. The Court will make an order for consolidation where the application appears to be reasonable, even though the defences raised are different (q). ART. 46.-Assessment of damages in a consolidated action. In a consolidated action, the jury shall assess the whole amount of damages (if any) in one sum, but a separate verdict shall be taken for or against each defendant in the same way as if the actions consolidated had been tried separately; and if the jury shall have found a verdict against the defendant or defendants in more than one of the actions so consolidated, they shall proceed to apportion the amount of damages which they shall have so found between and against the said (q) Eddison v. Dalziel (1893), 9 Times L. R. 334. |