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estopped, and ought not to be admitted to bring the present action against the defendant.

No. 53.

Defence of Accord and Satisfaction.

The plaintiff was the proprietor and publisher of a certain weekly journal called the Musical Review; and the defendant was the proprietor and publisher of another weekly journal called the Orchestra. And after the publication, if any, of the said words, the plaintiff and defendant by letters interchanged between the parties on the 29th March, 1864, agreed together to accept mutual apologies, to be published by the plaintiff and defendant respectively in their said weekly journals, in full satisfaction and discharge of the cause of action set out in the Statement of Claim, and of all damages and costs sustained by the plaintiff in respect thereof. And thereupon, in pursuance of the said agreement, the defendant on the 14th May, 1864, printed and published his part of the said mutual apologies in the form agreed on in his weekly journal the Orchestra, of which the plaintiff had notice. And the plaintiff on the same day printed and published his part of the said apologies in the form agreed on in his said weekly journal, the Musical Review. And such apologies so published as aforesaid the plaintiff accepted and received in full satisfaction and discharge of the causes of action set out in the Statement of Claim.

(See Boosey v. Wood, 3 H. & C. 484; 34 L. J. Ex. 65.)

No. 54.

Payment into Court-Pleading Matters in Mitigation of

Damages.

"1. The defendant brings into Court the sum of £5, and says that the same is sufficient to satisfy the plaintiffs' claim in this action.

"2. The defendant proposes to give evidence at the trial of the following matters, with a view to mitigation of damages:—

The defendant was a total stranger to both plaintiffs, and bore no malice to either. He was drunk when he uttered the said words, and the fact that he was drunk was obvious to all who heard them. He has no recollection of having ever uttered any such words, but does not dispute that he did so. Everyone who heard what the

defendant said was fully aware that he was not speaking deliberately, and that he did not seriously mean to make any charge against either plaintiff, but was talking wildly in consequence of drink. The said words are wholly untrue. There is and was no foundation whatever for any such statement. The defendant exceedingly regrets that he should ever have uttered any such words; he unreservedly withdraws all imputation on the plaintiffs' character, and apologizes for the abusive language which he uttered without any reason while under the influence of liquor."

No. 55.

Payment into Court with an Admission of the Innuendoes. 1. The defendants admit that they sold and circulated the book called " ," and that such book contained the words set out in paragraph 3 of the Statement of Claim. They admit that the said words are capable of the meanings alleged in the innuendoes contained in the said paragraph, and that they refer to the plaintiff. 2. The defendants bring into Court the sum of £ -, and say that the same is sufficient to satisfy the plaintiff's claim.

[N.B.-When the words are libellous in their natural and ordinary meaning, and the plaintiff has alleged an innuendo, the defendant may deny the innuendo and yet pay money into Court, provided it is made clear that the money is paid into Court in respect of the words without the innuendo, which is denied (Mackay v. Manchester Press Co., (1889) 54 J. P. 22; 6 Times L. R. 16). The proper course in such a case is to plead that the libel does not bear the meaning imputed to it by the plaintiff, and to plead that as it is nevertheless a libel, although not bearing that meaning, the defendant pays money into Court in respect of it. (Per Lord Esher, M.R., in Davis v. Billing, (1891) 8 Times L. R. 58.) See Precedent No. 57. But it is not wise to adopt this course, unless the innuendo is extravagant. For if the jury should find that the innuendo places on the words their true meaning, the payment into Court will strictly speaking be of no avail to the defendant. The money in such a case is paid into Court to the count for the words without the innuendo (see ante, p. 111), and the plaintiff has succeeded on the other count (viz., that comprising the innuendo), in respect of which no payment has been made; and it would probably be held that the plaintiff was entitled not merely to the costs of that issue but to the general costs of the action, even though he recovered less than the amount paid into Court. (See also ante, pp. 418, 592, 594.]

No. 56.

Apologizing in a Defence.

1. The defendants admit that they wrote the words set out in

paragraph 2 of the Statement of Claim, and published the same to Messrs. A. & B., the plaintiffs' solicitors.

2. They now apologize to the plaintiffs for the said words, and express their sincere regret that they ever wrote them. They unreservedly withdraw all imputations on the plaintiffs. They bring into Court the sum of forty shillings, and say that that sum, together with this apology and withdrawal, is sufficient to satisfy the plaintiffs' claim in this action.

[As to a pleading of this kind, see ante, p. 596.]

No. 57.

Consolidated Actions-Denial of the Innuendoes-Payment into Court with Apology.

DEFENCE TO CLAIM No. 10.

[Heading similar to that in Precedent No. 10.]

1. The defendants, the West of England Printing Company, Limited, admit that they printed and published the words set out in paragraph 3 of the Statement of Claim and that the same are libellous, but deny that the said words bore or are capable of the meaning alleged in the Statement of Claim.

2. The defendants, the

Gazette Company, Limited, admit. that they printed and published the words set out in paragraph 4 of the Statement of Claim and that the same are libellous, but deny that the said words bore or are capable of the meaning alleged in the Statement of Claim.

3. On the 17th September, 1903, the defendants, the West of England Printing Company, Limited, published in the issue of the County Herald of that date the following apology :-[Here insert the apology].

4. On the 21st September, 1903, the defendants, the Gazette Company, Limited, published in the issue of the Gazette of that date the following apology:- [Here insert the apology].

5. The defendants now repeat their respective apologies and bring the sum of £50 into Court, and say that such sum, together with the said apologies, is sufficient to satisfy the plaintiff's claim in this action in respect of the said words without the said alleged meanings, which are denied.

No. 58.

Pleading an Apology previously Published.*

"1. The defendant has paid into Court the sum of twenty guineas, and says that that sum is sufficient to satisfy the plaintiff's claim in this action.

"2. At the earliest opportunity after the commencement of this action the defendant made and offered an apology to the plaintiff for the said words by means of a letter written by the defendant's solicitors to the plaintiff's solicitor in the following words :

[Here set out letter, with date.]

"3. On the 31st day of October, 1882, the defendant caused to be printed in the Journal the following apology to the

plaintiff for the said words :

APOLOGY.

I,

of

desire to express my sincere regret that I incautiously repeated a statement made to me by one of my father's clerks concerning Mr. K., of — Such statement now proves to

have been wholly unfounded, and I beg to withdraw and contradict the same, and to apologize to Mr. K. for having made it.

An action having been commenced against me by Mr. K. for slander, I have this day paid into Court the sum of £15 15s., and I trust that Mr. K. will accept that sum, together with this apology, as the best amends it is in my power to make for the injury or annoyance which I have inadvertently caused him.

Dated this 25th day of October, 1882.

(Signed)

[Defendant.]

Witness,

A. B.,

Solicitor.

"This apology also appeared in the issue of the said journal for November 7th, and will appear in the next four consecutive issues thereof.

*I doubt whether such a Defence as this is strictly permissible; but it is not embarrassing; and I do not see that it is otherwise objectionable. It may be urged that the fact that the defendant has apologized since action is neither matter of defence nor a topic within the scope of Order XXXVI. r. 37; it is only ground for a notice under section 1 of Lord Campbell's Act. But the above pleading passed muster, and the jury, at the trial, found the apology sufficient.

"4. Take notice, that the defendant intends on the trial of this action to give in evidence in mitigation of damages the matters alleged in paragraphs 2 and 3 above."

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Take notice, that the defendant intends on the trial of this action. to give in evidence in mitigation of damages, if any shall be found to be due, that on the he made [or offered] an apology to the plaintiff for the defamation complained of in the Statement of Claim herein, before the commencement of this action [or as soon after the commencement of this action as there was an opportunity of making or offering such apology, the action having been commenced before there was an opportunity of making or offering such apology]. Such apology was published by the defendant in the News for October 3rd, 1904.

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Plea under Section 2 of Lord Campbell's Act.

The alleged libel was contained in a public daily newspaper called the Daily Press, and was inserted in such newspaper without actual malice and without gross negligence. Before [or at the earliest opportunity after] the commencement of this action the defendant inserted in the said newspaper a full apology for the said libel [or offered to publish a full apology for the said libel in any newspaper selected by the plaintiff] according to the statute in such case made and provided. The defendant has paid into Court the

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