ART. 10.-Joinder of defendants.

"All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment" (g).

NOTE. The plaintiff is not, however, compelled to join as defendants in the same action every person who is concerned in, and liable for, the publication complained of. But if he brings separate actions against such persons, one or more of them may apply to have the actions consolidated, and at the trial of such consolidated action the damages and costs shall be separately apportioned as against the different defendants (h).

Where an action is brought for a libel contained in a newspaper the defendant is now entitled to give in evidence in mitigation of damages that the plaintiff has already recovered (or has brought actions for) damages, or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as the libel for which such action has been brought (i).

(g) Rules of the Supreme Court, 1883, Ord. XVI. r. 4. (h) Sect. 5 of the Law of Libel Amendment Act, 1888, and see Article 45, p. 159, infra.

(i) Sect. 6 of the Law of Libel Amendment Act, 1888, and see Article 46, p. 160, infra.

ART. 11.-Security for costs.

A plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs (k), unless he resides in Scotland or Ireland (l), or is abroad in an official capacity on the public service (m), or has property of a fixed and permanent nature which can certainly be available for costs within the jurisdiction (n), or unless there is a co-plaintiff resident in England (o).

NOTE. The fact that the plaintiff, though ordinarily resident abroad, is temporarily resident within the jurisdiction, will not of itself operate to prevent such an order being made (p).

ART. 12.-Liability in cases of joint publication; no right to contribution or indemnity from co-defendant.

Where there has been a joint publication of the libel by two or more persons each of them is liable for all the ensuing damage, and has no claim to contributionor indemnity against the other or others, even though before publication there has been an express promise to that effect.

(k) Republic of Costa Rica v. Erlanger (1876), 3 Ch. D. 62. (1) Re Howe Machine Co. (1889), 41 Ch. D. 118.

(m) Colebrook v. Jones (1752), 1 Dick. 154.

(n) Ebrard v. Gassier (1884), 28 Ch. D. 232; but see Re Apollinaris Co.'s Trade Marks (1891), 1 Ch. 1.

(0) D'Hormusjee v. Grey (1882), 10 Q. B. D. 13.

(p) Rules of the Supreme Court, 1883, Ord. LXV. r. 6 a.

Where, however, the same libel has been published upon different occasions, a defendant who was responsible for the first publication, but in no way concerned with the second, would not be liable for any damage which he could prove was solely caused by the second publication, and in no way the result of the first; and the fact that one of such persons has been sued, and heavy damages recovered against him, is no defence (q) to an action brought against any of the others in respect of the same libel (r).

NOTE 1.-The first clause of this Article is merely a particular application of the well-known rule that there is no contribution between tort feasors (s). The effect of it is, that the proprietor of a newspaper sued jointly with his negligent editor and the author of the libel cannot obtain compensation from either of them in respect of the damages which he has been obliged to pay to the plaintiff (t); nor will the fact, that there has been an express promise to indemnify him if he will publish the libel, in any way improve his position, for such a promise is void, the consideration for it being illegal. A printer cannot

(g) See, however, Articles 44-46, infra, as to evidence in mitigation of damages and consolidation of actions under the Law of Libel Amendment Act, 1888.

(r) Harrison v. Pearce (1858), 32 L. T. O. S. 298; 1 F. & F. 567; Frescoe v. May (1860), 2 F. & F. 123; Colledge v. Pike (1886), 56 L. T. 124; Tucker v. Lawson (1886), 2 Times L. R.

593.

(s) Merryweather v. Nixan (1799), 8 T. R. 186. See Article 46, p. 160, infra.

(t) Colburn v. Patmore (1834), 1 C. M. & R. 73.

maintain an action for his charges for printing a libel (u); and if he agrees to print a book for a certain price, and finds in the course of his work that the book contains libellous matter, he may refuse to proceed, and can sue for that part of the work which is not libellous in an action for work and labour performed, and materials provided, or, as it is called, on a quantum meruit (x).

NOTE 2.-Where a libel has been published in a newspaper, the proprietor, publisher, editor, printer, author, and anyone who utters, gives, sells, or lends a copy of the newspaper containing the libel may be proceeded against.

Proprietor.-In most cases of newspaper libel the proprietor is alone sued, for his name and address can usually be discovered without any difficulty at Somerset House, room No. 7(y). Moreover, he will not generally disclose the name of the author of the libel, nor can he be compelled to do so (2). If the publisher has, in the first instance, been sued, the proprietor can, upon the hearing of a summons before a Master in Chambers, be made a co-defendant (a). So far as

(u) Poplett v. Stockdale (1825), Ry. & M. 337; Bull v. Chapman (1853), 8 Ex. 104.

(x) Clay v. Yates (1856), 25 L. J. Ex. 237; 27 L. T. O. S. 126; 1 H. & N. 73.

(y) See, however, p. 193, infra.

(z) Gibson v. Evans (1889), 23 Q. B. D. 384; 58 L. J. Q. B.

612.

(a) Edward v. Lowther (1876), 45 L. J. C. P. 417; 34 L. T. 255; 24 W. R. 434.

liability to an action is concerned, the position of the defendant is in no way altered by the fact that the publication was without his knowledge or in his absence. That is no answer to a civil action though, as we shall see, it affords a defence to criminal proceedings (b). Thus the proprietor of a newspaper is civilly liable for an accidental slip caused by his printer's man in setting up the type(c), and for a libellous advertisement inserted by the editor without his knowledge (d).

Publisher. The publisher is also liable in a civil action for all libels appearing in the paper, although their insertion was unknown to him (e).

Editor.-An editor is responsible for all libels appearing in the newspaper which he edits, even though he is ignorant of the fact of their insertion. "If you look upon the editor as a person who has published a libellous advertisement incautiously, of course he is liable” (ƒ).

In Watts v. Fraser and Moyes (g), both editor and printer were held liable for a libellous illustration, although they had never seen it, on the ground that the illustration was referred to in the

(b) See p. 186, infra.

(c) Shepheard v. Whitaker (1875), L. R. 10 C. P. 502.

(d) Harrison v. Pearce (1858), 32 L. T. O. S. 298; 1 F. & F.

567.

(e) Blake v. Stevens and others (1864), 11 L. T. 543; 4 F. & F.232.

(f) Per Pollock, C. B., in Keyzor and another v. Newcombe (1859), 1 F. & F. 559.

(9) (1835), 6 L. J. K. B. 226; 7 Ad. & E. 223; 7 C. & P.