ought to have been sued jointly in the first action. Where two are severally liable, judgment against one is no bar to an action against the other. Thus, a previous judgment against the proprietor of a newspaper, even though satisfied, is no bar to an action for the same libel against the author. (Frescoe v. May, 2 F. & F. 123.) A fortiori, the fact that damages had been recovered against one newspaper is no bar to an action against another newspaper which has published the same libel; although the defendant may give evidence of such previous recovery in mitigation of damages, by virtue of sect. 6 of the Law of Libel Amendment Act, 1888, ante, p. 372. In America, it seems, no judgment against another will be a bar, unless it be satisfied. (Lovejoy v. Murray, 3 Wallace (Supr. Ct.) 1; Thomas v. Rumsey, 6 Johns. (N. Y.) 26; Brown v. Hirley, 5 Upper Canada Q. B. Rep. (Old S.) 734; Breslin v. Peck, 38 Hun (45 N. Y. Supr. Ct.), 623.)

That former criminal proceedings have been taken by way of indictment for the same libel is no bar to an action, whether the prisoner was acquitted or convicted (Peacock v. Reynal, 2 Brownlow & Goldesborough, 151; 16 M. & W. 825, n.); but it is inadvisable to bring such an action in either case, except under very special circumstances. If the former criminal proceedings were taken. by way of criminal information, then if the rule nisi has been made absolute, clearly no civil action can be brought (R. v. Sparrow, 2 T. R. 198); and probably not if the rule was discharged on showing cause, all the old Courts at Westminster being now merged in the High Court of Justice (Wakley v. Cooke and another, 16. M. & W. 822; 16 L. J. Ex. 225); unless the Court thought a civil action the more appropriate remedy, and discharged the rule in order that civil proceedings might be taken. (Ex parte Hoare, 23 L. T. 83.)

Letter before Action.

In the absence of any special Act of Parliament, it is not necessary for a plaintiff to serve any intended defendant with a formal notice of action. (See the Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61), s. 2, and Royal Aquarium v. Parkinson, (1892) 1 Q. B. 431; 61 L. J. Q. B. 409; 40 W. R. 450; 66 L. T. 513.) But in all cases, before actually issuing a writ, the plaintiff's solicitor should write to the defendant, demanding an apology and threatening proceedings if no apology be forthcoming. Say nothing in this letter about costs. If the charge was made publicly, a public apology should be demanded, to be advertised in a newspaper. If only a few heard it, the plaintiff should

be content with a letter of apology, fully retracting the charge, which can be shown to everyone who heard what the defendant said.

Indorsement on Writ.

In actions of defamation the writ is always generally indorsed. In actions of slander it is enough to say "The plaintiff's claim is for damages for slander." But by a rule made in 1903 more details must now be given on the writ in an action of libel. "In actions for libel the indorsement on the writ shall state sufficient particulars to identify the publications in respect of which the action is brought." (Order III. r. 9.) And a form of indorsement is given in Appendix A. Part III. sect. iv. of the R. S. C.: "The plaintiff's claim is for damages for libel contained in [state sufficient particulars to identify the publications]." If the plaintiff also desires to claim an injunction, the words "and for an injunction" should be added. As to an application for an interim injunction, see ante, p. 398.

Matters to be considered by the Defendant.

At the first hint of legal proceedings, the defendant should consider the advisability of apologising. If he is in the wrong, he ought to admit it at once. In the case of a newspaper, it is particularly desirable that this question should be dealt with at the earliest moment, in order that the apology, if any, may be published in the next issue of the paper.

A prompt apology will often put an end to the action. It is very difficult for the plaintiff to disregard it; if he does, the sympathies of judge and jury will probably be with the defendant, and it may assist to reduce materially the amount of damages. But such apology must be frank and full. A guarded, half-hearted apology will only injure the defendant's position. It is no use to publish a paragraph expressing astonishment at the receipt of a lawyer's letter and attempting to explain away or minimise an imputation clearly made. It is still worse to assert, as is sometimes done, that the defendant has done the plaintiff a kindness in making a false charge against him, as it "has afforded him an opportunity of publicly denying it." (See the remark of Mellor, J., L. R. 1 Q. B. 701.) A mere correction is not an apology. A so-called apology is not an apology at all, unless it unreservedly withdraws all imputations and expresses regret for having made any. If defendant apologises at all, he should do so freely and handsomely, as well as promptly.

Whether he has apologised or not, defendant should enter an appearance to the writ. He should not allow judgment to go by default, unless he is utterly and hopelessly in the wrong, and at the same time there is no hope of a compromise. If he has no defence, he should apologise and pay money into Court as amends. This he can do at any stage of the action; and the earlier it is done, the better for the defendant. He can give the plaintiff the notice in Form No. 3, Appendix B., referred to in Order XXII. r. 4. In most cases it is idle to pay into Court a contemptuous sum, such as a farthing or a shilling; it should be at least 40s.

If, however, the action is one that should be fought, the defendant should consider whether the plaintiff has properly shaped his claim. It may be that too many plaintiffs or defendants have been added (see ante, pp. 558, 560); or necessary parties may have been omitted. If in the same action claims by the plaintiffs jointly be combined with claims by them or any of them separately, the defendant may apply to have them severed, on the ground that they cannot be conveniently disposed of in the same action. (Order XVIII. rr. 1, 7, 8, 9.) That the plaintiff is an outlaw is ground for staying proceedings. (See R. v. Lowe and Clements, 8 Exch. 697; 22 L. J. Ex. 262; Somers v. Holt, 3 Dowl. 506; and 42 & 43 Vict. c. 59, s. 3.) Or if a defendant be harassed by two or more actions at once, he may apply to have them consolidated. (See post, p. 576.)

Writ of Inquiry.

If the defendant fails to appear to the writ, the plaintiff must file an affidavit of due service (Order XIII. r. 2), and he will then be entitled to sign interlocutory judgment, and a writ of inquiry will issue to the sheriff bidding him summon a jury to assess the damages, unless some other method of assessment be ordered by the Master. (Ib., r. 5.) As there is no Statement of Claim, the plaintiff should give the defendant formal notice a reasonable time before the hearing that he intends to offer before the under-sheriff evidence of such and such special damage. Or under the amended rule 5 of 1902 the Master may now order a Statement of Claim or particulars to be filed before any assessment of damages, although the defendant has not appeared. Similarly, a writ of inquiry will issue if defendant does not deliver any Defence. (Order XXVII. r. 4.) The inquiry is conducted in the same way as a trial at Nisi Prius: the only difference is that the plaintiff must recover some damages, though as a rule he does not recover such heavy damages from a

sheriff's jury as after a full trial at Nisi Prius.

Rules 14, 15, 19, 34, 35, 36 and 37 of Order XXXVI. apply to an inquiry. The plaintiff need not adduce any evidence at all, but merely put in the libel. And the jury will not in such a case be bound to give him nominal damages only. (Tripp v. Thomas, 3 B. & C. 427; 1 C. & P. 477.) As to costs, see ante, p. 423. If the defendant desires to have the damages reduced, he must move for a new trial within the prescribed time. (See Chattell v. Daily Mail Publishing Co., Limited, (1901) 18 Times L. R. 165.)

Summons for Directions.

The writ being generally indorsed and the defendant having appeared, it is now the duty of the plaintiff to take out a summons for directions under Order XXX. This he must do, as a rule, before taking any other step in the action; and he must do so within fourteen days after appearance; otherwise the defendant will be entitled to apply to have the action dismissed. If, as usually happens, the Master declines to dismiss the action, he may yet on this application by the defendant give directions for its further conduct, as if it were a summons for directions (r. 8).

On either of these summonses the Court or a judge (which phrase usually means a Master) may make such order as may be just with respect to all the proceedings in the action from appearance till trial. The following are the directions most usually given :

(i) Pleadings. In actions of libel and slander, the Master invariably orders Pleadings. The precise words are material. (Order XIX. r. 21.)

(ii) Particulars.—If any allegation in any pleading is couched in such general terms that it does not give the other party detailed information to which he is entitled, the Master will order particulars. (See post, p. 585.)

(iii) Security for Costs.—If the plaintiff ordinarily resides out of the jurisdiction, he may be ordered to give security for costs, though he may be temporarily within the jurisdiction. (Order LXV. r. 6, a.) But no such order will be made if the plaintiff resides in Scotland or Ireland, or is abroad in an official capacity in the public service, or has substantial property within the jurisdiction on which execution can be levied; nor if there is a co-plaintiff who resides in England. The mere fact that the plaintiff is insolvent (Le Mesurier v. Ferguson and another, (1903) 20 Times L. R. 32), or is a married woman, is not sufficient ground for ordering security.

(iv) Remitting the Action to the County Court.-See post, p. 575. (v) Consolidation of Actions.—See post, p. 576.

(vi) Stay of Proceedings.-The Master has power to stay all proceedings, if the action is frivolous and vexatious (see Order XXV. r. 4), or if the plaintiff's mode of conducting the action is oppressive and vexatious, or if he has not paid the costs of a previous action brought on the same cause of action. But the mere fact that a plaintiff has not paid costs which he was ordered to pay upon an interlocutory application in the present action, is not a ground for staying proceedings in the action, if the plaintiff really is unable to pay them. (Graham v. Sutton, Carden & Co. (No. 2), (1897) 2 Ch. 367; 66 L. J. Ch. 666; 77 L. T. 35.) If the alleged libel was published by order of either House of Parliament, all proceedings will be stayed at once on production of a certificate to that effect by the Clerk of the House, with an affidavit verifying such certificate. (3 & 4 Vict. c. 9.)

(vii) Evidence.-It is on this summons, too, that the Master allows interrogatories (see post, p. 607) or grants discovery of documents (post, p. 602). He may in a proper case order that the evidence of some person abroad be taken under letters of request or on commission (post, p. 621), or that a witness who is dangerously ill, or about to go abroad, be examined here before the trial under Order XXXVII. r. 5; or that a copy of an entry in a banker's book be supplied under the Bankers' Books Evidence Act, 1879 (post, p. 620).

(viii) Place of Trial.-The place of trial is now fixed by the Master on the summons for directions. (Order XXXVI. r. 1.) He will fix it in the place which he deems least expensive and most convenient for both parties, and the majority of the witnesses on both sides. The plaintiff has no longer a preponderating voice in the matter; he has no primâ facie right to have the trial fixed in the place that best suits himself and his witnesses. Where the cause of action arose has now but little to do with the question. Where the defendant resides is equally immaterial. But if either party can satisfy the Master that he will not have a fair trial in the place which seems naturally most convenient (e.g., because his opponent is especially popular or powerful in that neighbourhood), the Master will fix on some other place where he is sure the jury will be impartial.

(ix) Time of Trial.-The Master cannot compel a defendant, who is not in default and is not asking for any indulgence himself, to take short notice of trial. (Laskier v. Tekeian, (1892) 67 L. T.