Proof that the Words were spoken of the Plaintiff in the way of his Office, Profession, or Trade.

It is not enough for the plaintiff to prove his special character, and that the words refer to himself; he must further prove that the words refer to himself in that special character, if they be not otherwise actionable. It is a question for the jury whether the words were spoken of the plaintiff in the way of his office, profession, or trade. It is by no means necessary that the defendant should expressly name the plaintiff's office or trade at the time he spoke, if his words must necessarily affect the plaintiff's credit and reputation therein. (Jones v. Littler, 7 M. & W. 423; 10 L. J. Ex. 171. See ante, p. 51.) But often words may be spoken of a professional man which, though defamatory, in no way affect him in his profession, e.g., an imputation that an attorney had been horsewhipped (Doyley v. Roberts, 3 Bing. N. C. 835), or that a physician had committed adultery. (Ayre v. Craven, 2 A. & E. 2; ante, p. 61.) But any imputation on the solvency of a trader, any suggestion that he had been bankrupt years ago, is clearly a reflection on him in the way of his trade. (Ante, pp. 29, 62.)

Evidence of Malice.

The judge must decide whether the occasion is or is not privileged, and also whether such privilege is absolute or qualified. If he decide that the occasion was one of absolute privilege, the defendant is entitled to judgment, however maliciously and treacherously he may have acted. If, however, the privilege was only qualified, the onus lies on the plaintiff of proving actual malice. This he may do either by extrinsic evidence of personal ill-feeling (ante, pp. 326-329), or by intrinsic evidence, such as the exaggerated language of the libel, the mode and extent of publication, and other matters in excess of the privilege. (Ante, pp. 330-337.) Any other words written or spoken by the defendant of the plaintiff, and indeed all previous transactions or communications between the parties, are evidence on this issue. Even if both parties were to blame in such previous transactions, still if they left in the defendant's mind a feeling of resentment or injured innocence, this may be used by the plaintiff as some evidence of malice. The defendant should therefore be careful how far he cross-examines to such matters with a view to showing provocation.

Placing a plea of justification on the record is no evidence of malice. (Wilson v. Robinson, 7 Q. B. 68; 14 L. J. Q. B. 196; 9

Jur. 726; Caulfield v. Whitworth, 16 W. R. 936; 18 L. T. 527.) But groundlessly persisting in it may be. (Warwick v. Foulkes, 12 M. & W. 508.) Care must be taken in citing Simpson v. Robinson (12 Q. B. 511), to refer to the judgments of the Court; as the headnote is declared by Willes, J., in Caulfield v. Whitworth, to be misleading. That the words are, in fact, untrue is no evidence of malice (ante, p. 323); the falsity of the words is indeed always presumed in the plaintiff's favour. Proof that the defendant at the time of publication knew that what he was saying or writing was false, is proof positive of malice. Hence the plaintiff cannot, as a rule, give any evidence of his own good character. But where the parties have been living in the same house for a long time, as master and servant, and the master must have known the true character of his servant, and yet has given a false one, there the plaintiff is allowed to give general evidence of his good character, and to call other servants of the defendant to show that no complaints of misconduct were made against the plaintiff whilst he was in defendant's service; for such evidence tends to show that the defendant, at the time he gave plaintiff a bad character, knew that what he was writing was untrue. (Fountain v. Boodle, 3 Q. B. 5; 2 G. & D. 455; Rogers v. St. Gervas Clifton, 3 B. & P. 587, ante, p. 339.) But in any other case, if no justification be pleaded, and yet the plaintiff's counsel gives evidence of the falsity of the libel, this will, in strictness, let in evidence on the other side of the truth of the statement. (Per Lord Ellenborough in Brown v. Croome, 2 Stark. 298, 299.)

Rebutting Justification.

The plaintiff may object at the trial that a plea of justification is insufficient, or that the particulars delivered under it do not justify the charge made, whether such objection has been taken on the pleadings or no. The plaintiff's counsel may, if he chooses, in the first instance rebut the justification; or he may leave such proof till the reply, when he will know the strength of defendant's case. (See Maclaren & Sons v. Davis and another, (1890) 6 Times L. R. 373.) But he cannot, in the absence of special circumstances, call some evidence to rebut the justification in the first instance, and more afterwards, thus dividing his proof. (Browne v. Murray, R. & M. 254.)

Evidence of Damage.

The plaintiff need give no evidence of any actual damage where the words are actionable per se; he can nevertheless recover

substantial damages. (Tripp v. Thomas, 3 B. & C. 427; 1 C. & P. 477; Ingram v. Lawson, 6 Bing. N. C. 212.) But if the plaintiff has suffered any special damage, this should be pleaded and proved. It cannot be proved unless it has been pleaded. (Bluck v. Lovering, (1885) 1 Times L. R. 497.) As to what constitutes special damage, see ante, pp. 353–359. As to what damage is too remote, see ante, pp. 381-392.

Where the plaintiff relies on the loss of particular customers, or on loss of hospitality, as special damage, he must call the individual customers and friends to state why they have ceased to deal at his shop, or to entertain him. (Ante, p. 359.) It is true that in Skinner & Co. v. Shew & Co., (1894) 2 Ch. 581; 63 L. J. Ch. 826, North, J., accepted a letter from the solicitor of the intending customer as evidence of the reasons why the negotiations were broken off. there were special circumstances in that case. (See (1894) 2 Ch. pp. 595, 596.) In an ordinary action at Nisi Prius, no such letter would be received. (See Clarke v. Morgan, 38 L. T. at p. 355.) Such witnesses cannot, however, be called unless their names have been set out in the Statement of Claim or the particulars. It must also be proved that they heard of the charge against the plaintiff from the defendant's own lips. It will not be sufficient to prove that they heard a rumour, and that the defendant set such a rumour afloat. (See ante, p. 381; Dixon v. Smith, 5 H. & N. 450; 29 L. J. Ex. 125; Bateman v. Lyall, 7 C. B. N. S. 638.)

The plaintiff may also call evidence in aggravation of damages. The matter most commonly urged in aggravation of damages is that the defendant was actuated by malice. (See ante, pp. 365-368.) Where an action is brought against one defendant only, evidence of malice in some third person, who might have been joined as a defendant, is not admissible against the person sued. (Ante, p. 322.) It has been contended, therefore, that where two or more persons are joined as defendants in respect of a joint publication, the plaintiff may not give evidence of malice in one to aggravate the damages against all. There can only be one judgment in such an action, a judgment for the same amount against all the defendants. (Dawson v. M'Clelland, (1899) 2 Ir. R. 486.) Each defendant is, no doubt, liable for all the damage which the plaintiff has actually sustained in consequence of the joint publication. But should evidence of malicious acts committed by A., to which B. and C. were not parties, be given in an action brought against A., B. and C. as joint tort-feasors? Andrews, J., in Dawson v. M'Clelland (ib. at p. 490) seems to have been of opinion that such evidence was

inadmissible. (And see Mayne on Damages, 7th ed. 505.) But such is not at present the practice in England.

If the defendant has paid money into Court this fact should not be mentioned in the hearing of the Jury before verdict. (Order XXII. r. 22; and see ante, p. 594.)

Provinces of Judge and Jury.

In actions of libel and slander it is most important to distinguish the respective provinces of judge and jury. In some circumstances it is the right, and indeed the duty, of the judge (Turner v. Bowley & Son, (1896) 12 Times L. R. 402) to withdraw the case from the jury and to direct judgment to be entered for the defendant.* This should be done in the following cases:

(i) If there is no evidence that the defendant published the words.

(ii) If there is no evidence that the words refer to the plaintiff. (Fournet v. Pearson, Limited, (1897) 14 Times L. R. 82.) (iii) If the words proved are not actionable per se, and either there is no evidence of any special damage, or if the special damage is in law too remote. (Speake v. Hughes, (1904) 1 K. B. 138; 73 L. J. K. B. 172; 89 L. T. 576.)

(iv) If the plaintiff's claim is barred by a Statute of Limitation, which the defendant has pleaded. (See ante, p. 567.) (v) If the words are actionable by reason only of being spoken of the plaintiff in the way of his office, profession, or trade, and there is no evidence that the words were so spoken, or that the plaintiff held such office or carried on such profession or trade at the time of publication. (See ante, p. 623.)

(vi) If the words are not actionable in their natural and primary signification, and there is no innuendo; or if the innuendo puts upon the words a meaning that they cannot possibly bear or is not actionable. (Cooney v. Edereain, (1897) 14 Times L. R. 34; Dauncey v. Holloway, (1901) 2 K. B. 441; 70 L. J. K. B. 695; 49 W. R. 546; 84 L. T. 649.) (vii) If the occasion of publication was one of absolute privilege.

There is no longer such a thing as a common law nonsuit (Fox v. Star Newspaper Co., (1900) A. C. 19; 69 L. J. Q. B. 117; 48 W. R. 321; 81 L. T. 562); but the term "nonsuit" is still sometimes used by learned judges to denote the action of the judge, when he withdraws the case from the jury or directs judgment to be entered for the defendant in spite of their verdict.

(viii) If the occasion is clearly or admittedly one of qualified privilege, and there is no evidence, or not more than a scintilla of evidence, of malice to go to the jury. (Cooke v. Wildes, 5 E. & B. 328; 24 L. J. Q. B. 367, ante, p. 324; Turner v. Bowley & Son, (1896) 12 Times L. R. 402.)

(ix) Where the words are clearly or admittedly a comment on a matter of public interest and are not reasonably capable of being interpreted as an unfair comment. (McQuire v.

Western Morning News Co., (1903) 2 K. B. 100; 72 L. J.

K. B. 612; 51 W. R. 689; 88 L. T. 757.)

The judge cannot withdraw the case from the jury upon the opening statement of facts made by the plaintiff's counsel, without the consent of such counsel (Fletcher v. L. & N. W. Ry. Co., (1892) 1 Q. B. 122; 61 L. J. Q. B. 24; 40 W. R. 182; 65 L. T. 605); except, perhaps, where no evidence that the plaintiff intends to call would cure the defect in the plaintiff's case as so opened. (See Speake v. Hughes, (1904) 1 K. B. 138; 73 L. J. K. B. 172; 89 L. T. 576.)

The jury has no right to interpose and stop the case by finding in favour of one party until they have heard all the evidence tendered by the other party and the speech of his counsel.

The proper time for the defendant's counsel to submit that there is no case to go to the jury is at the close of the plaintiff's case. Some judges, however, decline to allow the question to be argued at this stage of the action, unless the defendant's counsel at once announces that he intends to call no witnesses. Where the facts, to which the law has to be applied, are in dispute, it is generally best to discuss the law of the case after all the evidence on both sides has been given. (Hope v. l'Anson and Weatherby, (1901) 18 Times L. R. 201.) Moreover, the judge has power to call and examine a witness who has not been called by either party. If he does so, neither party has a right to cross-examine that witness without the leave of the judge, but such leave will always be granted if the evidence of the witness called by the judge is adverse to either party. (Coulson v. Disborough, (1894) 2 Q. B. 316; 42 W. R. 449; 70 L. T. 617.)

The question whether the words complained of are capable of a defamatory meaning is for the judge. Whether the words in fact conveyed a defamatory meaning is a question for the jury. (See Chapter V., ante, p. 104.) "Libel or no libel is, of all questions, peculiarly one for a jury." (Per Coleridge, C.J., in Saxby v. Easterbrook, 3 C. P. D. at p. 342.) If the words are reasonably