by which the defendants are limited, I hold that the evidence of K. B. Div. acts that took place in Cork was not admissible, and, therefore, that the verdict must be set aside. 1903. HEWSON v. We have considered the question of costs. We direct that the CLEEVE. defendants shall, under any circumstances, abide their own costs of Palles, C.B. the trial and the argument. It was their counsel that insisted upon the reception of this evidence, and to this extent they must bear the consequence of such insistence. As regards the plaintiffs' costs, we make them costs in the action. We do not give them to them in the first instance, because, if their action is an unmeritorious one, and they are ultimately defeated, there is no reason in anything that has occurred why the defendants should pay them. J. L. The defendants appealed to the Court of Appeal (1). Appeal. 1904. Serjeant Dodd and Redmond Barry, K.C. (with them Jefferson), Jan. 12–14. for the appellants :— The evidence of the Cork witnesses was admissible as tending to establish that the plaintiffs acted as they did in Limerick in pursuit of a system, and as negativing accident, or mistake, or any reasonable, honest motive: The King v. Wyatt (2); The Queen v. Francis (3); The Queen v. Rhodes (4). The right to demand particulars was waived. There was no objection taken to the admission of the Cork evidence based on the ground of surprise. The plaintiffs themselves admitted in crossexamination all that the Cork witnesses proved. [HOLMES, L.J.: That is so with the exception of the statement made by one Cork witness that the male plaintiff told him he was a retired naval officer.] (1) Before LORD ASHBOURNE, C., and FITZ GIBBON, WALKER, and HOLMES, L.JJ. (2) 20 Times L. R. 68. Appeal. 1904. HEWSON v. CLEEVE. Jan. 14. Moriarty and Phelps, for the respondents : The charge in the libel is for obtaining goods by false pretences in Limerick. The editor who wrote the article admitted this. There is no evidence that they obtained goods by false pretences in Limerick. There is no evidence that they obtained credit by false pretences in Limerick. To prove the criminal offence the intention not to pay must be proved. The Cork evidence was not admissible for want of particulars: J'Anson v. Stuart (1); without particulars the plea of justification is a nullity. Possibly the particulars given in the plea of fair comment may be treated as particulars for the plea of justification, but they relate only to matters in Limerick, and do not enable evidence of acts in Cork to be given. Cook v. Field (2) shows the importance of strict practice in reference to pleading justification, because if the libel charges an indictable offence on the finding of justification the plaintiff can be put on trial without being brought before the Grand Jury. Here also the affidavit made by the defendants on the venue motion stated that all their witnesses lived in Limerick. Gordon-Cumming v. Green (3) proves that where a charge is not specific the plea of justification should give particulars. Scott v. Sampson (4), decided on Order XIX., Rules 4 and 6, decides that without particulars this plea is a nullity. The Isis (5), Yorkshire Provident Life Assurance v. Gilbert (6), Mosse v. Malings (7), show how a pleader is bound by the particulars given. Further, even if the Cork evidence is admitted it will not justify the libel. There is no evidence that the plaintiffs obtained goods on credit by false pretences. The plea is one and entire, and unless the entire plea is proved the defendants must fail : The Queen v. Newman (8). LORD ASHBOURNE, C. : This case comes before the Court on appeal from the King's Bench Division, who made an order directing that a new trial should take place. It is an action of libel brought by two (1) 1 T. R. 748. (2) 3 Esp. 133. (3) 7 Times L. R. 408. (4) 8 Q. B. D. 491. (5) 8 P. D. 227. (6) [1895] 2 Q. B. 148. (7) 33 Ch. D. 603. (8) 1 Ellis & Blackburn, 558. Appeal. 1904. HEWSON v. Lord plaintiffs-husband and wife-against the owners of a newspaper in Limerick, and the libel complained of was a paragraph which appeared in the newspaper, headed "Swindlers in LimerickTraders Victimised," and containing an account of how a " pair of CLEEVE. swindlers," who had been staying in Limerick, had departed without paying their bills, and leaving local tradesmen lamenting. Ashbourne, C. The statement of claim set out the entire libel. The defence contained the usual traverses and a long plea, in paragraph 7, alleging that the words complained of were "fair comment," and mentioning as matters of fair comment practically a paraphrase of the libel set out in the statement of claim. Next came paragraph 8, raising the plea of justification, shortly alleging, in general terms, that the libel was true in substance and in fact. No particulars were referred to in reference to this plea. None were given by the defendants, and none were asked for by the plaintiffs. The case was tried before Kenny, J., and a special jury in Limerick, and resulted in a verdict for the defendants. The plaintiffs' case at the trial was at the opening. fully stated by their counsel: they were examined at length in support of it, and they gave their evidence in much detail: they were then cross-examined apparently very searchingly by the defendants' counsel. Amongst the topics as to which they were cross-examined were matters not only connected with their residence in Limerick, and the debts that they incurred there, and the accounts that they left unpaid there, but also matters in reference to their previous residence in Cork, and as to the debts incurred, and demands left unsatisfied by them in that city. Then in due course Mr. Bushe opened the defendants' case, and his statement of it appears to have impressed the jury very much, for the foreman intimated in the middle of his speech that they did not require to hear any of the Cork evidence. Later on, one of the jury said they would like to hear some of the Cork evidence, and when Mr. Bushe tendered it, Mr. Moriarty, for the plaintiffs, objected to it. This Cork evidence was received by the Judge, and is now before the Court. It is little more than a bald statement of the debts that had been left unpaid by the plaintiffs when they left Cork, very much the same in effect as they themselves had stated in their cross-examination. I believe there is only one point that is practically not covered by 1904. HEWSON v. Appeal. what was admitted by the plaintiffs in cross-examination-that is the statement made by one witness that the plaintiff mentioned something about his having been connected with the naval service, and that is a point to which the Judge at the trial did not attach much weight. At the trial the case was tried out on this plea of Ashbourne, C. justification, upon the broad defence that the whole charge was true in substance and in fact, and the result was a verdict for the defendants. CLEEVE. Lord A new trial motion was then instituted, and came before four Judges of the King's Bench Division, the Lord Chief Baron presiding. The contention addressed by the plaintiffs' counsel to the Divisional Court was that the Cork evidence had been wrongly received at the trial, that having been admitted by the Judge, coupled with his refusal to direct the jury in the manner required by Mr. Moriarty, there occurred what amounted to a misdirection, and that therefore there should be a new trial directed. The question discussed turned entirely upon the reception of the Cork evidence, which it was contended was illegal. To this contention the Chief Baron yielded, resting his judgment mainly on the provisions of Order XIX., Rules 4 and 6. With much that was said by the Lord Chief Baron in his judgment I entirely agree, but still I must remain impressed by the conduct of the plaintiffs themselves all through this litigation, and also by the course of the trial. The plea of justification, absolute and unqualified in its terms, is as general as can be conceived-that the libel was true in substance and in fact. There can be no special demurrer now. The plea is there. It is a plea that is sanctioned by law. I am disposed to think that in this case it would have been reasonable for the defendants themselves, having regard to the nature, character, and length of the libel, to have added some particulars referring to occasions and dates which they had in their minds at the time the plea was drawn. Rule 6 would appear to indicate that that would have been a reasonable course to have taken here; that Rule, however, is for the protection of suitors; its object is to prevent the opposite party being taken by surprise; but there is nothing to prevent a party waiving the benefit of its provisions, and I think that is precisely what the plaintiffs have done here. 1904. HEWSON v. CLEEVE. Lord Knowing that this was a general plea of justification without any Appeal. particulars given, they could have asked for particulars, and if they were not satisfied with such as were then given to them, they could have applied to the Court for further particulars, making the case that they did not wish to have to go through every item of their lives-to go to trial with no particulars present to their mind Ashbourne, C. -and if such an application had been made, I think it would have been reasonable to accede to it. But that course was not adopted by the plaintiffs. On the contrary, they elected to join issue, and were satisfied to await the trial, and fight out the truth of the charges so generally pleaded. Having then this general plea before him at the trial, without any narrowing particulars, the plaintiffs having been very fully cross-examined with reference to their dealings in Cork, when this Cork evidence was tendered, what was the learned Judge to do? It was argued that it was illegal for him to receive this Cork evidence. It might have been illegal if the plaintiffs had asked for particulars, and they had received in reply a statement that the particulars would be found in the plea of fair comment, or that the particulars would be found in their dealings with certain Limerick tradesmen. If particulars had been supplied by either reference or direct statement relating entirely to Limerick, then I could quite appreciate the force of the argument that it would have been improper to have received evidence as to Cork or any place outside the particulars. The Lord Chief Baron liberally construed the pleading as giving for the purposes of the plea of justification the particulars given for the plea of fair comment, which were particulars relating solely to dealings in Limerick, and therefore he held that evidence of acts which took place in Cork was not admissible. If I could construe the pleading in this manner, I should arrive at the same conclusion. But I read the plea of justification as standing by itself-a general allegation that the charges made in the libel were true in substance and in fact, with no particulars narrowing them. When the Cork evidence was tendered at the trial, I could well conceive the plaintiffs' counsel saying to the Judge:-" This comes on us, we do not say technically, but as a real surprise: we thought from the preceding defence of fair comment that we had |