of property, executors of the same will, trustees of the same settlement, members of the same corporation) be charged collectively with some joint misconduct or neglect of duty, this is a joint imputation on them all as a body, and all can join as co-plaintiffs in one action if they wish. And generally, if A. and B. be both defamed by the same libel or slander, and if some common question of law or fact would arise in each action, should they sue separately, A. and B. can join as co-plaintiffs on one writ. But if the same defendant defames A. on one occasion and B. on another, A. and B. cannot join as co-plaintiffs, although the charges made against them may be "historically connected"; for their respective rights to relief do not arise out of the same publication. Unless the case falls within the precise words of Order XVI. r. 1, the old rule of law applies that no action can be maintained jointly by two plaintiffs where the wrong done to one is no wrong to the other (Barratt and Hodsoll v. Collins, (1825) 10 Moore, 446), and each plaintiff must issue a separate writ.

Illustrations.

Where trustees were libelled as a body in respect of some act done by them collectively in the performance of their duties, it was held that they might all join in one action.

Booth and others v. Briscoe, (1877) 2 Q. B. D. 496; 25 W. R. 838. So two co-proprietors of a newspaper may sue jointly for a libel on their paper. Russell and another v. Webster, (1874) 23 W. R. 59.

But where the female defendant uttered several separate and distinct slanders, of which some imputed that Mrs. Sandes had been guilty of larceny, while the others imputed larceny to her daughter, it was held that the mother and daughter must bring separate actions.

Sandes and another v. Wildsmith and another, (1893) 1 Q. B. 771; 62 L. J. Q. B. 404; 69 L. T. 387.

Several Defendants.

As a rule there can be only one defendant in an action of slander, viz. the person whose lips uttered the words complained of. If, however, the plaintiff can show that A. instructed B. to utter the slander sued on, the slander becomes a joint tort, and A. and B. can be made defendants in the same action.

Where special damage is essential to the cause of action, the plaintiff should be careful to sue only that person whose utterance of the slander actually caused the special damage. He should not sue the originator of the falsehood, if his utterance of it has produced no direct injury to the plaintiff.

With a libel, however, the case is different. Whenever more persons than one are concerned in the same publication, the plaintiff may sue all or any of them in the same action. Thus, where the libel has appeared in a newspaper, he can always join as defendants in the same action the proprietor, the editor, the printer, and the publisher, or so many of them as he thinks fit. But where there are two distinct and separate publications, even of the same libel, one by A. and the other by B., separate actions must be brought. (See Sadler v. Gt. W. Ry. Co., (1896) A. C. 450; 65 L. J. Q. B. 462; 45 W. R. 51; 74 L. T. 561.) The plaintiff is not now, and never was, obliged to join as a defendant every person who was liable. He may, if he prefer, sue only one or two; and the liability of the others will be no defence for those sued, and will not mitigate the damages recoverable. (Ante, p. 371.) But the judgment against these is a bar to any subsequent action on the same publication against anyone else who was jointly liable with them; for all persons engaged in a common wrongful act are liable jointly and severally for the consequent damage. (Co. Lit. 232 a; 1 Wms. Saund. 291 f; Sutton v. Clarke, 6 Taunt. 29.) The nonjoinder of a defendant in an action of tort never was any ground of objection; the present defendant could not plead either in abatement or in bar that another joint wrong-doer had not been made a co-defendant. (Mitchell v. Tarbutt and others, 5 T. R. 649; Ansell v. Waterhouse, 6 M. & S. 385.) So, too, the misjoinder of one defendant will not avail the others; it will only entitle the defendant misjoined to a verdict in his favour. (Morrow v. Belcher and others, 4 B. & C. 704; Govett v. Radnidge and others, 3 East, 62; Bretherton and others v. Wood, 3 B. & B. 54.) But the plaintiff will have to pay the costs of the defendant who proves not liable, unless such defendant has colluded with the other defendant found to be liable, or has otherwise been guilty of misconduct. Hence the plaintiff should be careful not to join any defendant who is not liable for the publication sued on.

The plaintiff can only bring one action in respect of the same publication; he cannot recover twice over from different defendants the same damages for the same injury. He may sue one or more or all of the joint publishers in his one action, at his election; but as soon as he recovers judgment in the first action, everyone else who was jointly liable is released. No second action can be brought on that publication against anyone who might have been sued in the first action, but was not (Brown v. Wootton, Cro. Jac. 73; Yelv. 67; Moo. 762; Duke of Brunswick v. Pepper, 2 C. & K. 683;

Brinsmead v. Harrison, L. R. 7 C. P. 547; 41 L. J. C. P. 190; 20 W. R. 784; 27 L. T. 99); even though the plaintiff was not then aware that such other person was liable. (Munster v. Cox, 10 App. Cas. 680; 55 L. J. Q. B. 108; 34 W. R. 461; 53 L. T. 474.)

In cases where a libel has been written or printed by one man at the direction of another, it is often wise to sue the person who actually wrote or printed the libel, as well as his master or employer. For, if this be done, although the plaintiff may fail to prove agency at the trial, he will yet be entitled to judgment against the writer or printer.

Where a libel has appeared in a newspaper, the person defamed can, as we have seen, sue the proprietor, the editor, the printer, and the publisher, or any one or more of them. If the action be originally brought against the publisher only, a Master at chambers will subsequently, on proper terms, join the proprietor as a co-defendant. (Edward v. Lowther, 45 L. J. C. P. 417; 24 W. R. 434; 34 L. T. 255.) The plaintiff, however, generally and naturally prefers to sue the author. Hence his solicitor frequently writes to the editor of the paper before issuing the writ, demanding the writer's name and address. This information the editor will, as a rule, refuse to give. Editors generally regard it as a point of honour not to disclose the name of any contributor. In Hibbins v. Lee, 11 L. T. 541, Cockburn, C.J., expressed his opinion that an editor ought always to give up the name of the writer where the libel is not confined to public matters, but reflects on the private character of the plaintiff. "At all events, if he does not choose to do so, he must be content to stand in the shoes of the writer, and to take the consequences." On the other hand, in Harle v. Catherall and others, 14 L. T. 802, Martin, B., said, "When a man went to an editor to ask for the name of an anonymous correspondent, no blame attached to the editor for refusing to give the name. Indeed, an editor would almost be mad to do so. He should blame no editor for so refusing." If the plaintiff be met with such a refusal, he must be content to sue the proprietor of the paper, who generally obtains an indemnity from the writer. And the plaintiff cannot, in such action, compel the proprietor to produce the original manuscript so that he may recognise the handwriting. (British and Foreign Contract Co. v. Wright, 32 W. R. 413; Hope v. Brash, (1897) 2 Q. B. 188; 66 L. J. Q. B. 653; 45 W. R. 659; 76 L. T. 823, post, p. 607.) Nor can he, in the absence of special circumstances, interrogate the proprietor or editor as to the name of the author. (Hennessy v. Wright (No. 2), 24 Q. B. D. 445, n.; 36 W. R. 879;

Gibson v. Evans, 23 Q. B. D. 384; 58 L. J. Q. B. 612; 61 L. T. 388.) The printer of a libel, on the other hand, will generally disclose the name of his employer; there is no reason why he should not; and see the statute 39 Geo. III. c. 79, s. 29, which provides that the printer must for six calendar months carefully preserve at least one copy of each paper printed by him, and write thereon the name and address of the person who employed and paid him to print it. (See ante, p. 12.) As to election placards, see 46 & 47 Vict. c. 51, s. 18.

Joinder of Causes of Action.

The Judicature Act permits a plaintiff to join on one writ any number of causes of action, provided they be all between the same parties. But as a rule, in cases of libel and slander, the plaintiff should not avail himself of this power. Defamation is a matter sui generis, and it would be imprudent to complicate the issue by joining irrelevant claims. Any number of libels or slanders published by the same defendant of the same plaintiff may be and ought to be included in the same action. So may a claim for malicious prosecution, or wrongful dismissal, or even assault, between the same parties; but such joinder would only be advisable if all such causes of action arose out of the same circumstances, and would be substantiated by the same witnesses as the claim for libel or slander.

A claim by a plaintiff A. cannot be joined with a separate claim by a plaintiff B. even against the same defendant, unless the case falls within Order XVI. r. 1, as to which see ante, p. 559. A claim for libel or slander by a plaintiff against one defendant X. can never be joined with a separate claim by the same plaintiff against another defendant Y. (Thompson v. London County Council, (1899) 1 Q. B. 840; 68 L. J. Q. B. 625; 47 W. R. 433; 80 L. T. 512), as Order XVI. r. 1, applies only to plaintiffs, and the wide words of Order XVI. r. 4, have been narrowed down by the decision of the House of Lords in Sadler v. Gt. W. Ry. Co., (1896) A. C. 450; 65 L. J. Q. B. 462; 45 W. R. 51; 74 L. T. 561, A fortiori a cause of action by A. against X. cannot be joined with a separate cause of action by B. against Y.

Special provision has been made for cases of husband and wife, and for persons jointly interested. Before the Judicature Act if a wife was libelled or slandered and the husband sustained special damage in consequence, two actions had to be brought, one by the husband and wife jointly for the injury to her reputation, and a

second by the husband alone to recover the special damage which he had personally sustained. (See ante, p. 530.) But now by Order XVIII. r. 4, claims by or against husband and wife may be joined with claims by or against either of them separately. Again, before the Judicature Act if a firm was libelled and one partner suffered separate special damage he had to bring a separate action for this special damage; he could not recover it in an action brought by the firm, although in that action he was a necessary plaintiff. (See ante, p. 551.) But now by Order XVIII. r. 6, "claims by plaintiffs jointly may be joined with claims by them, or any of them, separately against the same defendant."

It should however be remembered that this rule applies only to plaintiffs. There is no rule enabling a claim against defendants jointly to be joined with a claim against them or any of them separately. Hence if two or more persons be sued for jointly publishing a libel, or for conspiracy to libel, claims cannot be joined against one or more of them separately for other libels or slanders. (Gower v. Couldridge, (1898) 1 Q. B. 348; 67 L. J. Q. B. 251; 46 W. R. 214; 77 L. T. 707; Pope v. Hawtrey and another, (1901) 85 L. T. 263; 17 Times L. R. 717.)

All the above cases, are subject to rr. 1, 8, 9, of Order XVIII., which provide that if a plaintiff unites in the same action several causes of action which cannot be conveniently tried or disposed of together, a master or district registrar, on the application of the defendant, may order any of such causes of action to be excluded, and consequential amendments to be made.

Illustration.

The plaintiff was engaged by H. to act at a theatre, of which D. was lessee and manager. In an action brought by him against H. and D. in respect of an alleged slander spoken by one defendant on one occasion and by the other defendant on another occasion, and also in respect of an alleged conspiracy between them wrongfully to dismiss him from his employment: Held, that these claims could not be joined in one action.

Pope v. Hawtrey and another, (1901) 85 L. T. 263; 17 Times L. R.

717.

Overruling Dessilla v. Schunck & Co. and Fels & Co., W. N. 1880, p. 96.

Jurisdiction.

The next question is, has the Court which the plaintiff wishes to select, jurisdiction over his cause of action. Want of jurisdiction may arise from two distinct causes. (i) The Court may have no power to try that class of action. (ii) The defendant