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a copy of the newspaper containing the libel seventeen years after its original publication, was held to constitute a fresh publication, from the date of which the Statute of Limitations would begin to run anew.
ARTICLE 26.—Evidence in aggravation of damages.
At the trial of an action for libel in any newspaper the plaintiff may prove in aggravation of damages the circumstances under which the libel was published (s).
Note.—Thus, the plaintiff may show that the libel was scattered broadcast when the defendant was under no duty and had no right to publish it except to a limited number of persons (t). He may show that the defendant was culpably negligent(u); that he could without any difficulty have discovered that his charges were unfounded, or that he persisted in maintaining their truth even at the trial itself (x). But he is not allowed, in order to aggravate the damages, to give evidence of his good character unless the defendant has previously suggested on the pleadings or in cross-examination that it is bad (y). Neither is he
(8) Vines v. Serell (1835), 7 C. & P. 163; Darby v. Ouseley (1856), 25 L. J. Ex. 233; Blake v. Stevens and others (1864), 11 L. T. 543 ; 4 F. & F. 235; Risk Allah Bey v. TVhitehurst (1868), 18 L. T. N. S. 615.
(t) Gathercole v. Miall (1846), 15 L. J. Ex. 179; 10 Jur. 337; 15 M. & W. 319; Stockdale v. Hansard (1839), 9 A. & E. 149; De Crespigny v. Wellesley (1829), 5 Bing. 402.
(u) Smith v. Harrison (1856), 1 F. & F. 565.
(a) Warwick v. Foulkes (1844), 12 M. & W. 508; Wilson v. Robinson (1845), 7 Q. B. 68; 14 L. J. Q. B. 196; 9 Jur. 726; Simpson v. Robinson (1848), 12 Q. B. 511; 18 L. J. Q. B. 73; 13 Jur. 187.
(y) Cornwall v. Richardson (1825), Ry. & M. 305; Guy v. Gregory (1840), 9 C. & P. 587; Brine v. Bazalgette (1849), 18 L. J. Ex. 348; 3 Ex. 692.
allowed, with the same object in view, to prove that the defendant has published other libels of him (x).
ARTICLE 27.-Evidence in mitigation of damages.
At the trial of an action for a libel in any newspaper, the defendant may prove in mitigation of damages (1) that the plaintiff has already recovered (or 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(a); (2) (after notice in writing of his intention so to do, duly given to the plaintiff at the time of filing'or delivering the plea in such action) that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there was an opportunity of making or offering such apology()); (3) the circumstances under which the libel was published or the character of the plaintiff, provided that he has furnished the particulars thereof to the plaintiff seven days at least before the trial, or has pleaded the truth of the words complained of, otherwise he cannot give such evidence except by leave of the judge (c).
NOTE 1.—The first of the above provisions, which was introduced by the Act of 1888, is a very valuable one to newspaper proprietors. Prior to that Act, e.g., if a country
(2) Pearson v. Lemaitre (1843), 12 L. J. Q. B. 253; 7 Jur. 748; 7 J. P. 336; 5 M. & Gr. 719; 6 Scott, N. R. 607.
(a) Law of Libel Amendment Act, 1888 (51 & 52 Vict. c. 64), s. 6. See Note 1, and p. 105, infra.
(6) Lord Campbell's Act (6 & 7 Vict. c. 96, s. 1). See Note 2.
(c) Rules of Supreme Court, 1883, Order XXXVI. r. 37. See Note 2.
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 (a). It will be observed that the
d 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 (e).
Note 2.—The second and third of the above provisions may be taken advantage of by any defendant to an action for libel ucherecer published. Wherever the defendant can make use of the latter provision he should be careful to give the seven days' notice required by it, as otherwise he will not be entitled, without the special leave of the judge who tries the case, to give evidence, which in many cases will prevent the plaintiff from obtaining other than nominal damages. The effect of Order XXXVI., rule 37, which provides for the above notice being given, is not to enable the defendant to give in evidence what, before that rule came into force, he could not give, but merely to prevent him from giving the evidence therein specified, unless he does give such notice. He may not, of course, go into irrelevant matters (S). Thus he cannot
f be permitted to show that the plaintiff has not contradicted or complained of previous publications by some other person of the same libel (9). He may, however, always give evidence to prove that he was not acting maliciously but in good faith. Thus, in Harle v. Catherall and others (h), where the defendant, an editor, declined to discover the
(d) Hunt v. Algar and others (1833), 6 C. & P. 245. (e) See supra, Article 16, Note 1, p. 28.
(f) Cooke v. Hughes (1824), R. & M. 112; Darby v. Ouseley (1856), 25 L. J. Ex. 227; 1 H. & N. 1; 2 Jur. N. S. 497.
(9) Rex v. Holt (1792), 5 T. R. 436; per Maule, J., in Ingram v. Lawson (1840), 9 C. & P. 333; and Pankhurst v. Hamilton (1886), 2 Times L. R. 682.
(h) (1866), 14 L. T. 801.
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 editor inserted, it was held that the defendant was entitled to prove these facts in mitigation of damages. So, too, in Smith v. Scott (i), where the libel was contained in an inaccurate report of proceedings in à 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 (k). If, however, the libel appears on the face of it to be copied from a certain newspaper or communicated by a particular correspondent, the defendant may prove in mitigation of damages that a paragraph to the same effect did appear in that newspaper, or that the libel was in fact communicated to him by such correspondent (). Evidence of rumours to the same effect as the libel complained of is inadmissible (m). But still, if defendant can prove that in copying the libel from
(i) (1847), 2 C. & K. 580. See also East v. Chapman (1827), 2 C. & P. 570; M. & M. 46; Vessey v. Pike (1829), 3 C. & P. 512; Charlton y. Watton (1834), 6 C. & P. 385; Pearson v. Lemaitre (1843), 12 L. J. Q. B, 253; 7 J. P. 336; 7 Jur. 748 ; 5 M. & Gr. 700; 6 Scott, N. R. 607.
(k) Saunders v. Mills (1829), 6 Bing. 213; 3 M. & P. 520; Talbutt v. Clark and another (1840), 2 M. & Rob. 312; Reg. v. Newman (1853), 22 L. J. Q. B. 156; 3 C. & K. 252; Dears. C. C. 85; 1 El. & Bl. 268, 558; 17 Jur. 617; l'ucker v. Lawson (1886), 2 Times L. R. 593.
(1) Mills and wife v. Spencer and wife (1817), Holt, N. P. 533; Bennett v. Bennett (1834), 6 C. & P. 588; 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.
(m) Scott v. Sampson (1882), 8 Q. B. D. 491; 51 L. J. Q. B. 380; 46 L. T. 412; 46 J. P. 488; 30 W. R. 541.
another newspaper or (semble) in inserting the libellous communication of a correspondent, he was careful to omit certain parts which referred in very strong terms to the plaintiff, his conduct in so doing is admissible as evidence to prove absence of malice, and this necessitates the admission in evidence of the original libel (n). 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 (o), but not otherwise (p).
ARTICLE 28.- 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
(n) Creevey v. Carr (1835), 7 C. & P. 64; De Bensaude v.
Conservative Newspaper Co. (1887), 3 Times L. R. 538.
(0) Finnerty v. Tipper (1809), 2 Camp. 76; Wakley v. Johnson (1826), Ry. & M. 422; Tarpley v. Blabey (1835-36), 2 Bing. N. C. 437; 7 C. & P. 395; 2 Scott, 642; Watts v. Fraser and another (1837), 7 A. & E. 223; 7 C. & P. 369; 1 M. & Rob. 449; 2 N. & P. 157.
(p) May v. Brown (1824), 3 B. & C. 113; 4 D. & R. 670.