statement in a certain newspaper, the defendant is entitled to show that he did in fact read such statement in that newspaper, and wrote the libel believing such statement to be true. (R. v. Burdett, 4 B. & Ald. 95; Mullett v. Hulton, 4 Esp. 248; Hunt v. Algar, 6 C. & P. 245.) So, if in the libel the defendant has named A. as his informant, he may prove in mitigation that he did in fact receive such information from A., though of course this is no defence to the action. (Tidman v. Ainslie, 10 Exch. 63; Bennett v. Bennett, 6 C. & P. 588; Mills and wife v. Spencer and wife, Holt, N. P. 533; East v. Chapman, M. & M. 46; 2 C. & P. 570; Duncombe v. Daniell, 2 Jur. 32; 8 C. & P. 222; cited 7 Dowl. 472; Davis v. Cutbush and others, 1 F. & F. 487.) But where the libel does not, on the face of it, purport to be derived from any one, but is stated as of the writer's own knowledge, there evidence is wholly inadmissible to show that it was copied from a newspaper or communicated by a correspondent. (Talbutt v. Clark and another, 2 Moo. & Rob. 312.) But still, if the defendant can show that in copying the libel from another newspaper he was careful to omit certain passages which reflected strongly on the plaintiff, his conduct in making such omissions is admissible as showing the absence of animus against the plaintiff, and this necessarily involves the admissibility of the original libel copied. (Creevy v. Carr, 7 C. & P. 64; Creighton v. Finlay, Arm. Mac. & Ogle (Ir.) 385; and see De Bensaude v. Conservative Newspaper Co., (1887) 3 Times L. R. 538.) Illustrations. Mrs. Evans told Mrs. Spencer that she was going to Mrs. Mills' house to learn dress making; Mrs. Spencer thereupon told Mrs. Evans a few things about Mrs. Mills, which she said Mrs. Lewis and Mrs. Sayer had told her. Gibbs, C.J., would have admitted evidence apparently that these ladies had, in fact, told Mrs. Spencer what she told Mrs. Evans: but it turned out it was somebody else who had said so, and not the two ladies whom she named as her authorities. Evidence of what was said by these third persons, who were not named by Mrs. Spencer when she uttered the words complained of, was excluded. Mills and wife v. Spencer and wife, (1817) Holt, N. P. 533. On the day of the nomination of candidates for the representation of the borough of Finsbury, the defendant published in the Morning Post certain facts discreditable to one of the candidates, the plaintiff, which he alleged he had heard from one Wilkinson at a meeting of the electors. Held, that Wilkinson was an admissible witness to prove, in mitigation of damages, that he did, in fact, make the statement which the defendant had published at the time and place alleged. Duncombe v. Daniell, 2 Jur. 32; 8 C. & P. 222; 1 W. W. & H. 101. The Observer published an inaccurate report of the trial of an action brought against the plaintiff. The defendant copied this report verbatim into his paper. Held, that evidence that many other papers besides the defendant's had also copied the statement from the Observer was inadmissible. Saunders v. Mills, 6 Bing. 213; 3 M. & P. 520. Tucker v. Lawson, (1886) 2 Times L. R. 593. Evidence that the defendant had copied it from the Observer into his own paper had been admitted apparently without question at the trial; but in allowing that evidence, Tindal, C.J., says (6 Bing. 220): It appeared to me I had gone the full length." In Talbutt v. Clark (2 Moo. & Rob. 312), Lord Denman says, referring, no doubt, to Saunders v. Mills, "I know that in a case in the Common Pleas it has been held that a previous statement in another newspaper is admissible; but even that decision had been very much questioned." One officer charged another with stealing a watch; a third officer in the same regiment was called to state that he had previously heard rumours that the plaintiff had stolen that watch, but his evidence was rejected; and the Court held that such rejection was right (Pigot, C.B., dissenting). Bell v. Parke, (1860) 11 Ir. C. L. R. 413. Kelly, C.B., is reported to have given a similar ruling in It is now clearly settled that evidence of such rumours is inadmissible. 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 Wilson v. Fitch, 41 Cal. 363. But where a libel on the plaintiff, who was Surveyor-General of Upper Canada, was contained in a pamphlet which was not generally circulated, copies being sent only to the principal civil officers of the province, one of whom was called as a witness by the plaintiff, Gibbs, C.J., allowed the defendant's counsel to ask the witness, whether he did not read the substance of the libel in a public newspaper before he received the pamphlet. And this, although the pamphlet did not profess to be founded on the newspaper. Such cross-examination is permissible in mitigation of damages, as showing that it was the former publication in the newspaper, and not the subsequent publication of the pamphlet which injured the plaintiff's reputation; see post, p. 372 Wyatt v. Gore, (1816) Holt, N. P. 299, 304. (iii) Liability of others. At common law, if the present defendant is liable, the fact that some one else is also liable is immaterial. It will not diminish the amount recoverable from the present defendant, to show that the plaintiff has recovered, or might recover, other damages from others; for each defendant in his turn pays damages for the injury which he himself has occasioned, not for the injury done by others. But now by s. 6 of the Law of Libel Amendment Act, 1888 (51 & 52 Vict. c. 64), " at the trial of an action for a libel contained in any newspaper, the defendant shall be at liberty 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." Thus, in cases of slander, the defendant is only liable for such damages as result directly from his own utterance. If he chooses to repeat what another has said, that is his own conscious and voluntary act, for the results of which he alone is responsible. If, on the other hand, others choose to repeat his words, the defendant is not liable for the consequences of such repetition. (See post, p. 386.) So in cases of libel, if two newspapers have made each a distinct charge against the plaintiff, and subsequently the plaintiff finds his business falling off, whichever paper he sues may endeavour to show that the loss of trade is due, or partly due, to the charge made against the plaintiff by the other paper. And if there are two distinct and separate publications of the same libel, a defendant who was concerned in the first publication, but wholly unconnected with the second, will not be liable for any damages which he can prove to have been the consequence of the second publication and in no way due to the first. Further than this the common law did not go. The defendant could not give any evidence to show that the plaintiff had already sued those who were liable for other publications of the same or a similar libel, and recovered damages, although he might be crossexamined on the matter, if he went into the box. (Creevy v. Carr, 7 C. & P. 64; Frescoe v. May, 2 F. & F. 123.) Evidence that other actions were pending against other persons for other publications of the same libel was also inadmissible. (Harrison v. Pearce, 1 F. & F. 567; 32 L. T. (Old S.) 298.) But in these days, when any sensational paragraph which appears in one newspaper is invariably copied into many others, it was deemed advisable to alter the law on this point, and the above section was accordingly passed: see post, p. 645. (iv) Absence of Malice. As a rule, unless the occasion be privileged, the motive or intention of the speaker or writer is immaterial to the right of action: the court looks only at the words employed and their effect on the plaintiff's reputation. But in all cases, the absence of malice, though it may not be a bar to the action, may yet have a material effect in reducing the damages. The plaintiff is still entitled to reasonable compensation for the injury which he has sustained; but if the injury was unintentional, or was committed under a sense of duty, or through some honest mistake, clearly no vindictive damages should be given. In every case, therefore, the defendant may, in mitigation of damages, give evidence to show that he acted in good faith and with honesty of purpose, and not maliciously. (Pearson v. Lemaitre, 5 M. & Gr. 700; 12 L. J. Q. B. 253; 6 Scott, N. R. 607; 7 Jur. 748; 7 J. P. 336.) He may show that the remainder of the libel not set out on the record modifies the words sued on; or that other passages in the same publication qualify them. But he may not put in passages contained in a subsequent and distinct publication, unless the words sued on are equivocal or ambiguous. (Cooke v. Hughes, R. & M. 112; Darby v. Ouseley, 1 H. & N. 1; 25 L. J. Ex. 227; 2 Jur. N. S. 497.) The fact that the defendant did not originate the calumny, but innocently repeated it, is admissible if he gave it as hearsay, and named his authority when he repeated it, but not otherwise, as we have seen, ante, p. 369. The defendant may also urge that the plaintiff's conduct was such as would naturally lead the defendant to put the worst construction on his acts; or that in some other way the plaintiff had, by his conduct, brought the libel on himself. So, the defendant's subsequent conduct may mitigate the damages, e.g., if he showed himself open to argument, listened to the explanations that were offered him, stopped the sale of the libel as soon as complaint reached him, &c. In some cases, as we have seen, the plaintiff's conduct towards the defendant may be a bar to the action; as where the plaintiff, by attacking the defendant, has provoked a reply which is made honestly in self-defence. (See ante, p. 275.) But where the facts do not amount to such a defence, they may still tend to mitigate the damages. "There can be no set-off of one libel or misconduct against another; but in estimating the compensation for the plaintiff's injured feelings, the jury might fairly consider the plaintiff's conduct, and the degree of respect he has shown for the feelings of others." (Per Blackburn, J., in Kelly v. Sherlock, L. R. 1 Q. B. 698; 35 L. J. Q. B. 213; 12 Jur. N. S. 937.) Thus, evidence is admissible in mitigation of damages to show that the plaintiff had previously himself libelled or slandered the defendant, provided it be also shown that this had come to the defendant's knowledge and occasioned his attack on the plaintiff. (Finnerty v. Tipper, 2 Camp. 76; Anthony Pasquin's Case, cited 1 Camp. 351; Tarpley v. Blabey, 2 Bing. N. C. 437; 2 Scott, 642; 7 C. & P. 395; Watts v. Fraser, 7 A. & E. 223; 7 C. & P. 369; 1 M. & Rob. 449; 2 N. & P. 157; Wakley v. Johnson, Ry. & M. 422.) But not, if such previous libels refer to other matters and did not provoke that sued on. (May v. Brown, 3 B. & C. 113; 4 D. & R. 670; Sheffill v. Van Deusen, 15 Gray, 485.) The defendant may not branch out into irrelevant matters in his evidence; he may crossexamine the plaintiff thereon; but if he does, he must take the plaintiff's answer; he cannot call evidence to contradict it. Where no justification is pleaded, the defendant will 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, without the leave of the judge, unless he has seven days at least before the trial furnished particulars to the plaintiff of the matters as to which he intends to give evidence. (Order XXXVI. r. 37.) See post, p. 377. |