121.) But if an action is to be tried at the Assizes he may direct that it shall not be tried before the third, fourth, or fifth day of the Assizes, and order the defendant to accept ten days' notice of trial for the day so fixed. (Baxter v. Holdsworth, (1899) 1 Q. B. 266; 68 L. J. Q. B. 154; 47 W. R. 179; 79 L. T. 434.)

(x) Mode of Trial.-In actions of libel or slander, the Master almost invariably orders trial by a judge with a jury. It is always best to have a jury in such actions, and, as a rule, both parties desire one. "Libel or no libel, since Fox's Act, is of all questions peculiarly one for a jury." (Per Lord Coleridge, C.J., in Saxby v. Easterbrook, 3 C. P. D. at p. 342.) It is true that Fox's Act applies in terms only to criminal proceedings. But it laid down no new principle; the procedure which it rendered imperative in criminal cases was already, before that enactment, the invariable rule in all civil cases, and has remained so ever since: it bad, in earlier days, been the rule in criminal cases also. As Littledale, J., says in Baylis v. Lawrence (11 A. & E. at p. 925), "Although that Act applied more particularly to criminal cases, yet I know no distinction between the law in criminal cases and that in civil, in this respect. Therefore that which has been declared to be law in criminal cases is the law in civil cases. "Fox's Act was only declaratory of the common law." (Per Brett, L.J., in Capital and Counties Bank v. Henty, 5 C. P. D. at p. 539.) And see Parmiter v. Coupland, 6 M. & W. at p. 108.

Either party may obtain a special jury. But the application must be made in good time. (See post, p. 621.)

Remitting the Action to the County Court.

By virtue of sect. 66 of the County Courts Act, 1888 (51 & 52 Vict. c. 43), any person against whom an action of tort is brought in the High Court may make an affidavit that the plaintiff has no visible means of paying the costs of the defendant should a verdict be not found for the plaintiff; and thereupon a Master of the Supreme Court, if he is satisfied that the plaintiff has no visible means, may make an order that, unless the plaintiff shall, within a time to be therein mentioned, give full security for the defendant's costs to the satisfaction of a Master, or satisfy a Master that he has a cause of action fit to be prosecuted in the High Court, all proceedings in the action shall be stayed, or that the action be remitted for trial to a County Court to be named in the order.

This section applies, although the action be one which could not be commenced in the County Court. (Stokes v. Stokes, 19 Q. B. D.

62, 419; 56 L. J. Q. B. 494; 36 W. R. 28.) The application can be made at any stage of the action, but only by the defendant; it is usually made before any Defence is delivered. He must make an affidavit, showing that the plaintiff has no visible means, and that there will be a saving of costs and greater convenience in trying in the County Court. The plaintiff must show that the action is more fit to be tried in the High Court than in the County Court. (Farrer v. Lowe, (1889) 53 J. P. 183; 5 Times L. R. 234 ; Banks v. Hollingsworth, (1893) 1 Q. B. 442; 62 L. J. Q. B. 239; 41 W. R. 225; 68 L. T. 477.) No order under the section will be made where grave imputations have been cast on the plaintiff's moral character (Critchley v. Brown, (1886) 2 Times L. R. 238; Williams v. Morris, (1894) 10 Times L. R. 603), especially if the defendant has justified his words (Farrer v. Lowe, suprà). Again, no order will be made if the plaintiff can prove that he has visible means of paying costs. By the term "visible means is intended such means as can be fairly ascertained by a reasonable person in the position of the defendant; not necessarily tangible property such as the defendant could reach in the event of his obtaining judgment for his costs. (Lea v. Parker, 13 Q. B. D. 835; 54 L. J. Q. B. 38; 33 W. R. 101.) An order will in a proper case be made under this section against a plaintiff who is a married woman, although she cannot be ordered to give security for costs. (Ante, p. 531; Critchley v. Brown, suprà.)

If an order be made remitting the action, its effect is practically to transform the action into a County Court cause. As to the further conduct of the action, see post, p. 659. It is practically useless for a defendant to appeal from the Master's order. (Palmer v. Roberts, 22 W. R. 577, n.; 29 L. T. 403.) The plaintiff may appeal, if the order is obviously wrong. (Jennings and wife v. London General Omnibus Co., 30 L. T. 266; Owens v. Woosman, L. R. 3 Q. B. 469; 9 B. & S. 243; 37 L. J. Q. B. 159; Holmes v. Mountstephen, L. R. 10 C. P. 474; 33 L. T. 351.)

There is a similar provision in the Liverpool Court of Passage Act, 1893, enabling a judge of the High Court in certain cases to remit for trial in the Court of Passage any action of tort which might have been brought in the Court of Passage, but has been brought in the High Court. (56 & 57 Vict. c. 37, s. 4.)

Consolidation of Actions.

At common law there was always power to consolidate two or more actions which had been unnecessarily brought by the same

plaintiff against the same defendant, either alone or with others for the same words, or for separate publications of similar words, or for two distinct libels or slanders, or for a libel and a slander all arising out of the same transaction and intimately connected with each other. (Whiteley v. Adams, 15 C. B. N. S. 392; Jones v. Pritchard, 18 L. J. Q. B. 104; 6 D. & L. 529.) And this practice continues since the Judicature Act and applies in all the Divisions of the High Court. (Order XLIX. r. 8.) An application for consolidation can be made at any time after service of the writs, and without any consent on the plaintiff's part. (Hollingsworth v. Brodrick, 4 A. & E. 646; 6 N. & M. 240; 1 H. & W. 691.) Formerly such an order could be obtained only by a defendant, but now a plaintiff may also apply for such an order: such an application is made under the Summons for Directions. (Martin v. Martin & Co., (1897) 1 Q. B. 429; 66 L. J. Q. B. 241; 45 W. R. 260; 76 L. T. 44.)

The Court in former days would not consolidate actions brought by several different plaintiffs against the same defendant for the same libel; as each plaintiff would be entitled to different damages. And till 1888 the Court had no power to intervene where the same plaintiff sued several different defendants for publishing the same libel. Thus, where an error was made by one newspaper was copied into many others, the plaintiff was entitled to sue each paper separately, and recover damages and costs in each action. (See Tucker v. Lawson, (1886) 2 Times L. R. 593.) So where a plaintiff, who had already recovered 3,100l. damages in actions against three newspapers, brought seventeen more actions against other newspapers who had copied the same libel, the Court refused to make any order for consolidation; the publications being distinct, and the circumstances attending each being different. The Court did, however, stay sixteen out of the seventeen actions, on certain terms, till after the trial of the seventeenth. (Colledge v. Pike, 56 L. T. 124.)

Hence it was thought desirable to enlarge the power of consolidating actions; and accordingly it was provided by sect. 5 of the Law of Libel Amendment Act, 1888, that when two or more actions in respect to the same, or substantially the same, libel are brought by one and the same person, the defendants may apply for and in a proper case obtain an order for the consolidation of such actions, so that they shall be tried together. (See the section, post, p. 791.) An order may be made under this section although no Defences have yet been delivered (Stone v. Press

O.L.S.

PP

Association, Limited, (1897) 2 Q. B. 159; 66 L. J. Q. B. 662; 45 W. R. 641; 77 L. T. 41), or although the Defences delivered in the various actions are different: e.g. where the defendant in the first action has justified, and the defendant in the second action has apologised and paid money into Court. (Eddison v. Dalziel, (1893) 9 Times L. R. 334.) So, too, it is sufficient if the libels be substantially the same: i.e., if they in fact contain the same imputation on the plaintiff, though the language used be different. Thus, where one libel was in verse and the other in prose, a Divisional Court, being satisfied that the charges made in each were identical, confirmed an order made by the judge at Chambers consolidating the two actions. (Mathew and Collins, JJ., in Todd v. Scott; and Todd v. Johnson & Co., Limited, February 6th, 1894.) The power given to the judge in this section to make an order apportioning the costs in no way interferes with or affects the general principle laid down in Order LXV. r. 1, that where case is tried by a jury, the costs shall follow the event, unless the judge for good cause otherwise order. (Per Charles, J., in Hopley v. Williams, 53 J. P. 822.)

After an order has been made for consolidation, only one set of pleadings is necessary, and the consolidated actions proceed as if they were one action. (See Precedent No. 10, post, p. 703.)

CHAPTER XXIII.

THE PLEADINGS.

THE pleadings in an action of libel or slander are more important, perhaps, than in any other class of actions usually brought in the King's Bench Division. In his Statement of Claim the plaintiff must set out the precise words of which he complains: if the words be not obviously defamatory he must state the meaning which he ascribes to them; and he must give details of any special damage which he has sustained. The defendant also must state clearly in his Defence the case which he will set up at the trial. He must make up his mind whether or no he is in a position to prove that the words are true and can therefore venture to plead a justification. At the same time he must consider what other defences he may be able to establish at the trial and be careful to raise them properly and sufficiently in his pleading.

A Reply is rarely needed in an action of libel or slander unless the defendant has pleaded a counterclaim.

Statement of Claim.

The very words complained of must be set out by the plaintiff in his Statement of Claim, "in order that the Court may judge whether they constitute a ground of action" (per Abbott, C.J., in Wright v. Clements, 3 B. & Ald. at p. 506), and also because "the defendant is entitled to know the precise charge against him, and cannot shape his case until he knows." (Per Lord Coleridge, in Harris v. Warre, 4 C. P. D. 128; 48 L. J. C. P. 310; 27 W. R. 461; 40 L. T. 429.) It is not sufficient to give the substance or purport of the libel or slander with innuendoes. (Newton v. Stubbs, 3 Mod. 71; Cook v. Cox, 3 M. & S. 110; Wood v. Brown, 6 Taunt. 169; Saunders v. Bate, 1 H. & N. 402; Solomon v. Lawson, 8 Q. B. 823; 15 L. J. Q. B. 253; 10 Jur. 796.) The precise words are material. (See Order XIX. r. 21.) So, too, in cases of slander of title the words must be set out verbatim. (Gutsole v. Mathers, 1 M. & W. 495; 5 Dowl. 69.) The defendant may be interrogated as to the exact words