critics, of the females, and of the corrupted newspapers, and the substance of the articles, and the time and place of their publication. But where the libel charged that certain exhibitions of opera by the plaintiff were an unfit resort for respectable people, and that they were attended by persons of certain specified immoral and illegal occupations or pursuits-held that an answer justifying such charge need do no more than reaffirm the statement contained therein, and need not specify the names of the persons who attended such exhibitions; and certainly this will be the case where the defendant alleges that the names of such persons are unknown to him. Where the charge was that the plaintiff made himself invisible on account of too much borrowing and not paying, innuendo that plaintiff ran away, held that an answer which stated "it is true the plaintiff made himself invisible on account of too much borrowing and not paying, that is, ran away," was insufficient. And in an action of slander in charging the plaintiff, a pawnbroker, with the practice of duffing, i. e., of doing up damaged goods and pledging them again, a plea alleging that the plaintiff did do up divers damaged goods and repledge to divers persons, &c., was, on special demurrer, held bad, for not stating specific instances and persons. And where the libel charged an attorney with general misconduct, viz., gross negligence, falsehood, prevarication, and excessive bills of costs in the business he had conducted for the defendant, a plea in justification repeating the same

1 Fry v. Bennett, 5 Sandf. 54.

? Maretzek v. Cauldwell, 2 Robertson, 715.

3 Wachter v. Quenzer, 29 N. Y. 552. A charge of moral obliquity must be proved by some act done mala fide. (Kerr v. Force, 3 Cranch C. C. 8.)

4 Hickinbotham v. Leach, 2 Dowl. Pr. Cas. N. S. 270; 10 M. & W. 361. To an action for slander in charging the plaintiff with stealing corn and fodder from various persons, a plea of justification leaving blanks for the dates and amounts would be bad on special exception, but cannot be attacked on a general exception. (George v. Lemon, 19 Texas, 150.)

general charges, without specifying the particular acts of misconduct, was, upon demurrer, held insufficient.1 A declaration alleged that plaintiff was cashier to Q., and that defendant, in a letter addressed to Q., wrote, "I conceive there is nothing too base for him (plaintiff) to be guilty of." Plea, in justification, alleged that plaintiff signed and delivered to defendant an I. Q. U., and afterwards, on having sight thereof, falsely and fraudulently asserted that the signature was not his; and the plea averred that the libel was written and published solely in reference to this transaction-held a sufficient justification, as the libel must be understood with reference to the subject-matter. Where the defendant, a railway corporation, published a placard headed "Caution,' and containing the plaintiff's name and address, and stated that he had been convicted of traveling on its railway without having first paid his fare, in an action for libel, the declaration contained an innuendo that the defendant meant thereby that the plaintiff had attempted to defraud the company; the plea was to the effect that the plaintiff was charged and convicted as alleged; on demurrer, this plea was held good, as containing a justification of the charge and of the innuendo.3

1 Holmes v. Catesby, 1 Taunt. 543.

2 Tighe v. Cooper, 7 El. & B. 639; 21 Jur. 716. A plea of justification need not meet the exact words of the libel, but may adopt the sense put by the innuendo, and justify that. (O'Connor v. Wallen, 6 Irish Law Rep. 378.) The declaration, after alleging that plaintiff had taken an oath under the election law, alleged that defendant charged plaintiff with having sworn false, meaning that plaintiff was guilty of perjury. Plea that plaintiff did swear false, in swearing he was a resident, plea held bad; it should have been the general issue, or have justified the perjury. (Strachan v. Barton, 35 Up. Can. Q. B. Rep. 374.)

Biggs v. Gt. East. R. R. 18 Law Times, N. S. 482. The declaration alleged that defendant had published of plaintiff, then late a conductor in the employ of defendant, that an envelope was mailed at Hamilton, containing four coupon tickets, &c., and that plaintiff had been dismissed, innuendo that plaintiff had conducted himself fraudulently in his said employment, and attempted to defraud the company, and had been dismissed therefor. Plea, that an envelope was mailed, &c. Held, for the plea was good. It undertook to justify the alleged libel with the innuendoes. (Tench v. Swinyard, 29 Up. Can. Q. B. Rep. 319)

§ 358. It is said that to justify a charge of crime, the plea or answer must specify the crime with certainty,' and show the commission of the crime with as much certainty as in an indictment for such crime.' In an action of slander for charging the plaintiff with having stolen the defendant's shingles, a justification stating that the plaintiff had sold the defendant's shingles without authority, and afterward denied that he knew anything respecting them, without alleging that the plaintiff took them privately or feloniously, was held not to amount to a charge of larceny, and was bad as a justification.3 To a charge of procuring an abortion, it was held not a sufficient plea that the plaintiff assisted in procuring an abortion, without allegations showing the assistance criminal.* Where the charge was that plaintiff "swore falsely," without reference to any judicial or other proceeding in which an oath could have been lawfully administered, a plea of justification pointing the plaintiff to the time, place, and occasion of his false swearing, and alleging the truth of the words' spoken, was held to be good. Where the charge is perjury, the plea must allege not only that the defendant testified to what was untrue, but that he did so knowingly, and that the matter testified to was material. If the charge be of having sworn falsely in a

1 Nall v. Hill, Peck (Tenn.) 325. When any circumstance is stated which describes or identifies the offense, it must be averred for the purpose of showing that it is the same offense. (Sharpe v. Stephenson, 12 Ired. 348.)

2 Snyder v. Andrews, 6 Barb. 43; Steele v. Phillips, 10 Humph. 461.

4 Bissell v. Cornell, 24 Wend. 354. Sanford v. Gaddis, 13 Ill. 329. To an action of slander for charging the plaintiff with having forged a certain instrument of writing, the truth was pleaded in justification. Held, that such a plea could not be objected to because it avers the forged instrument to be in the plaintiff's possession or destroyed. Held, also, that in a plea with such an averment, the instrument need not be so particularly described as would be otherwise required. (Kent v. David, 3 Blackf. 301.)

Chandler v. Robison, 7 Ired. 480. McGough v. Rhodes, 7 Eng. 625; Harris v. Woody, 9 Mo. 112. It is no justification to an insinuation of perjury against the plaintiff (who had sworn to an

judicial proceeding, without the necessary averments to make the slander amount to an imputation of perjury, then a plea of justification, that the plaintiff did swear falsely in the particular proceeding, would be sufficient.' Where the charge is that the plaintiff perjured himself on a particular occasion, the justification must be confined to that. Thus in slander for charging the plaintiff with committing perjury in making a certain statement, set out in the declaration, as a witness in a certain case, the defendant pleaded that the plaintiff did commit perjury by making that statement, and that on the same trial he committed perjury by another statement made by him on the same trial, and not set out in the declaration. On demurrer to both pleas, the first was held good and the second bad. In an action for slander in charging the plaintiff with perjury, a plea was that the words were spoken in reference to the testimony of the plaintiff on the trial of a cause, and after setting out the parties, the nature of the action, and the questions litigated, it stated the evidence given on such trial, and averred that the words were spoken in reference to certain parts of the testimony (specifying them) which were not material to the issue, and that the defendant was so understood by

3

assault by A. B. on him), that it did appear (which was the suggestion in the libel) from the testimony of every person in the room, &c., except the plaintiff, that no violence had been used by A. B., &c. ; for non constat thereby that what the plaintiff swore was false. Neither is it sufficient in a justification to such a libel, where the extraneous matter was so mingled with the judicial account as to make it uncertain whether it could be separated, to justify the publication by general reference to such parts of the supposed libel as purport to contain an account of the trial, &c., and that the said parts contain a just and faithful account of the trial, &c. (Stiles v. Nokes, 7 East, 493.)

1 Sanford v. Gaddis, 13 Ill. 329. "The answer should set forth the evidence, and what was actually sworn to by the plaintiff at the time alleged ” (3 Ch. Pl. 1039; Yates' Plead. 430; Woodbeck v. Keller, 6 Cow. 122), and the Code of New York has not altered the rule in this respect. (Tilson v. Clark, 45 Barb. 180; Wachter v. Quenzer, 29 N. Y. 553.)

2 Palmer v. Haight, 2 Barb. 210.

3 Starr v. Harrington, I Smith (Ind.) 350.

the hearers; it was held that the words in italic were irrelevant. A plea in an action of slander for charging the plaintiff with committing a felony, which admits the speaking of the words charged, but avers other facts in order to show that the words were not actionable, must show either that it appeared by the whole of defendant's statements, in the same conversation and company, that no felony had been committed, and therefore that there was no charge of felony, or that the charge was made known to the defendant by a third person, named in the plea, before he uttered the words."

$359. If a material part of a plea of justification fails, the plea fails altogether. Thus, in an action for libel, the declaration set out the whole of a long letter, in which the defendant imputed to the plaintiff improper conduct in various transactions which had taken place in reference to a ditch of the plaintiff's, alleged by the defendant to be a nuisance. The defendant pleaded “as to so much of the libel as related to, and charged the plaintiff with, the keeping of the nuisance," a plea which attempted to justify every sentence in the letter. The jury found that the plaintiff kept the ditch as a nuisance, but negatived the improper conduct imputed to the plaintiff in the letter. Held that, upon this finding, the plaintiff was entitled to a verdict. Where the charge

1 Allen v. Crofoot, 7 Cow. 46.

Parker v. McQueen, 8 B. Monr. 16. An averment that the plaintiff did falsely, fraudulently, and unlawfully alter a note, so as materially to change the terms and conditions thereof, is a good plea in justification of a charge of forgery. (Kerr v. Force, 3 Cranch C. C. 8.) It was held to be a justification of a charge of forgery, to show that the charge was intended to mean the altering of poll books, and that plaintiff had altered poll books. (Fellowes v. Hunter, 18 Up. Can. Q. B. Rep. 382.) 3 Cory v. Bond, 2 Fost. & F. 241.

Biddulph v. Chamberlayne, 17 Q. B. 351. reference to an advertisement by the plaintiff

Where, in an action for a libel in tending to injure the defendants, his

former partners, in their trade, the defendant justified, and relied on the construction of such advertisement, as set out in the introductory part of the declaration; held, that that not supporting the inferences in the libel, the plaintiff was entitled to recover. (Chubb v. Flannagan, 6 C. & P. 431.)