in his declaration a claim for special damages, however unfounded or incapable of proof, would relieve himself from having to prove either actual malice or culpable negligence.

But I do not think that the plaintiff has here claimed special damages even by his declaration. Any pretence of such a claim can be only under the third and fourth counts. These begin by alleging that the plaintiff carried on the business of a hardware merchant and that the defendants falsely and maliciously printed and published of the plaintiff in relation to himself and to his said business and the carrying on and conducting thereof by him the words following, setting out the alleged libel. The counts then conclude, whereby the plaintiff has been and is greatly injured in his credit and reputation, and also has been greatly injured in his credit and reputation as a hardware merchant and in his said business and has experienced and sustained sensible and material diminution and loss in the custom and profits of his said trade and business by divers persons whose names are to the plaintiff unknown, having in consequence of the committing of the said grievances by the defendants, avoided the plaintiff's said shops, stores and warehouses, and abstained from being customers of the plaintiff, as such merchant as aforesaid, as they otherwise would have been but for the committing of the said grievances by the defendants. This, it seems to me, is only an allegation of general damages having been sustained.

The plaintiff relies on Evans v. Harries, 1 H. & N. 251, in support of his declaration as a claim of special damages. There the declaration as given in that report was the same as in the present case. The plaintiff when examined as a witness at the trial, was asked whether he had found any difference in the profits of his business since the uttering of the slander, to which, after an objection to the question had been overruled, he replied "that his business was less, and that many customers had ceased to come to his house." The jury rendered a verdict of £15 for the slander and £5 for the loss of business. This was moved against one ground being, that the evidence of the loss of business was improperly received. The judgment is reported, "The rule must be discharged," that is all. During the argument, it is true, Martin, B., said, how is a public house keeper whose only customers are persons passing by, to show a damage resulting from the slander unless he is allowed to give general evidence of a loss

of custom? And Pollock, C.B., said, "Here there was evidence of a loss of custom, and no other reason could be assigned for it but the slander." But in Bullen & Leake, 306, after saying, that if the plaintiff fails in proving the special damage alleged he may still resort to and recover his general damages, there is added, "Thus in an action for defamation, the plaintiff was held entitled to prove and recover for a general loss of trade, though the declaration also alleged a loss of particular customers which he failed to prove," Evans v. Harries, being cited as the case in which he did so. The declaration in that case as given in 26 L. J. Ex. 31, did set out the names of persons whose custom the plaintiff alleged he had lost.

No doubt in Riding v. Smith, 1 Ex. D. 91, Kelly, C.B., Pollock, B., and Huddleston, B., held, that special damage might be proved by general evidence of the falling off of the plaintiff's business, without showing who the persons were who had ceased to deal with him; or that they were the persons to whom the statements were made. In the declaration persons who had ceased to deal with the plaintiff were named. In the more recent case of Clarke v. Morgan, 38 L. T. N. S. 354, it was held by the Divisional Court that these cases of Evans v. Harries and Riding v. Smith, have not varied the old rules of pleading as to special damages. Now, as I understand, where special damages were claimed in consequence of the loss of custom or business, the names of the customers whose business had been lost, were required to be set out. The forms of counts given, 2 Chitty on Pleading, 543, 548, and Bullen & Leake, 308, give names. In Odger on Libel, it is said, p. 302, "to allege generally that in consequence of the defendant's words the plaintiff had lost a large sum of money, or that his practice or business has declined is not a sufficiently precise allegation of special damage. The names of the persons who have ceased to employ the plaintiff, or who would have commenced to deal with him, had not the defendant dissuaded them must be set out in the statement of claim, or on the particulars; and they must themselves be called as witnesses at the trial to state their reason for not dealing with the plaintiff." And again, "Loss of custom is special damage, and must be specifically alleged, and the customers names stated on the record."

The defendants are within the protection of the statute. Special damages are neither claimed nor proved. Then it was incumbent upon the plaintiff to prove actual malice or culpable negligence. The second question left to the jury was, "Was the defendant guilty of actual malice in the publication of the article complained of?" And the third, "Was the defendant guilty of culpable negligence in its publication?" To both these they answered, that they could not agree. To the fourth question, "Was the article complained of merely a fair and reasonable defence against attacks previously made upon the defendant company or its publications by the publishers of the Sun newspaper?" They answered "no." To the last question, "Did Mr. Luxton when the publications were made, bona fide, believe them to be true in fact? If it is not proved to your satisfaction that he did not so believe, answer the question in the affirmative," they answered, "Luxton did believe them true in fact."

It was claimed that if the answer to this last question is also an answer to the second, then the verdict should have been entered for the defendants. I do not see how, the jury having disagreed on the question whether there was actual malice, the answer given to the last question can be taken as equivalent to a finding that there was not actual malice. It is the more difficult to hold that when the jury have found on the whole case a unanimous verdict of $500 in favor of the plaintiff.

The proper conclusion, as it seems to me, to draw from the answers is, that the jury disagreed. They certainly have done so on the two main questions submitted to them.

There should, therefore, be a new trial.

New trial granted.

REGINA v. STARKEY.

Certiorari.-County Judge or Magistrates. - Amendment of Notice.

S. having been convicted before magistrates, took proceedings to appeal to the County Judge and procured the papers to be sent to his clerk. Afterwards and before any proceeding by the judge he had the papers returned to the convicting justices. Upon notice to the justices of an application for a certiorari to be directed to them he now moved for the writ.

Held, 1. That the return of the papers to the justices was irregular and that the certiorari should go to the county judge, he being the legal custodian of the papers sent to him for the purpose of the appeal.

2. That the notice for a certiorari to be directed to the convicting justices could not be amended.

It was then contended that the statute 13 Geo. 11, c. 18, s. 5, entitled the convicting justices only to the six days notice, and that the county court judge was not entitled to any notice of motion for the writ and that the notice to the justices might be treated as a nullity and the order now made for the writ to go directed to the County court judge. But:

Held, That although the justices only may be entitled to the statutory notice, yet, where the records of the conviction have passed into the custody of another officer not entitled to notice the justices ought to have notice of the motion for the writ proposed to be directed to such officer, and that a new motion must be made for certiorari to the county judge and notice thereof given to the justices. Present application dismissed without costs.

It is not necessary that the affidavits by which objections are raised should be sworn and filed before service of the notice on the magistrates. The notice must show who the party moving is.

The practice of arguing the validity of the conviction upon the application for the certiorari does not apply, except when the parties consent.

The pendency of an appeal to the county judge does not interfere with certiorari: unless at all events, the question of jurisdiction is not raised upon the appeal.

This was an application for a writ of certiorari. The applicant had been convicted before magistrates of an offence under "The Liquor License Act 1889," 52 Vic. (Man.) c. 15, subsequently he commenced an appeal to the judge of the county court and procured the papers to be sent to the clerk of that court for such

purpose. Before any action had been taken by the county judge, the applicant procured the papers to be returned to the magistrates. The applicant then served on the magistrates notice of an application for a certiorari directed to them.

KILLAM, J.-In Rex v. The Inhabitants of Warminster, 1 Str. 470, the chairman of the sessions had returned an order of two justices on certiorari, and objection was made that the certiorari should have been directed to the justices who had made the order and not to the sessions, as it did not appear that any act had been done at the sessions either to confirm or reverse the order. The Court held the order well returned by the sessions, Eyre, J., saying that it had been so determined already, for the justices were supposed to return all the orders they make to the sessions.

In The Queen v. Caswell, 33 U. C. Q. B. 303, a conviction had been made within twelve days of the next succeeding sessions, and a notice of appeal had been given for the next sessions, when, by the statute, it should have been for the second sessions following the conviction. The sessions had refused to entertain the appeal. A certiorari had issued to the convicting justice and to the chairman of sessions to return the conviction. It was returned by the chairman. On motion to quash the certiorari as issued without the statutory notice to the justices present at the sessions when the appeal was refused, it was held that such notice was unnecessary as the appeal was a void proceeding and the sessions in refusing to entertain it had made no order affirming the conviction; but that the conviction was properly returned by the chairman of the sessions, the convicting justice having properly returned it to the sessions.

Here, apparently the conviction and proceedings were properly transmitted by the convicting justices to the clerk of the county court under 52 Vic. c. 15 s. 126, subsec. b. Apparently, also, nothing has been done by the judge of the county court under the notice of appeal. I agree with the decision in Regina v. Smith, 35 U. C. Q. B. 518, as to the power of amendment being taken from the convicting justices after the return to the sessions. It is supported by the remarks in Gude's Crown Practice, Vol. 1 p. 221.

In my opinion, then, the conviction and other proceedings passed wholly out of the custody or power of the convicting