the case as repugnant to the Judicature Rule, Order XXII. providing that a defendant may with a statement of defence denying liability (except in actions of slander and libel) pay money into Court. The plea was also considered embarrassing in so far as it did not specify the charges which it was intended to justify, and those which it admitted were not justified or excused, and in respect to which the money had been paid into Court. Coleridge, C.J., thought the rule was expressly designed for this sort of defence in consequence of the decision of Hawkesley v. Bradshaw (5 Q. B. D. 22, 302), that it might be done. The Rule permitting payment into Court generally along with another defence expressly excepts actions of libel. The defendant, therefore, may justify some parts of a libel where it is expedient to do so, and confess a cause of action as to the remaining parts, but he cannot as to the same libel or part of a libel justify it and pay money into Court. Where there were separate and distinct libels or parts of a libel it is only fair that the defendant should be allowed to justify some and pay money into Court as to the others, though there are dicta of Campbell, C.J., in R. v. Newman (1 E. & B. 268), to the effect that where there was justification of a libel pleaded it must justify the whole and be proved in toto. In the case of Fleming v. Dollar (supra), it was left doubtful which parts were justified and which not, and the plea was therefore held to be embarrassing and to be within the exceptions of the rule. Hawkins, J., concurred in this ruling of the Lord Chief Justice.

In an Irish case of Harris v. Arnott the Exchequer Court held that the money paid in under Lord Campbell's Act could not be withdrawn unless in satisfaction. But in England the parts of the section as to money in Court is repealed so that the law may now be different in the two countries.

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Imprisonment for Libel-Recent Cases. Burgess v. Hill and another. This was an action for criminal libel against the publishers of a paper called the Modern Owl, and where the matter complained of was a paragraph running as follows:-" Doesn't Jones' man who comes from Dunstable like to play with the Avery waiter in Bute Street? Never mind, he will get caught before long." The jury found the defendants guilty, and the judge (Cave, J.), severely commenting upon the scurrilous character of the publication, sentenced the publisher to six months' imprisonment (Circuit case at Bedford Assizes, 1888). A further action was tried at Warwick against the printer and publisher of the same print for libel, and the jury having found for the plaintiff evidence was given of the cessation of the papers and of the previous sentence, so the judge ordered defendants to enter into recognisances to come up for sentence when called. And in the case tried at the London Central Criminal Court on May 30, 1889, of Walker & Harvey v. William Riley, the defendant pleaded guilty to libelling Mr. Arthur Gladstone Walker and Mr. Richard Harvey, who were concerned in the management of his mother's business. The business was not successful, and the defendant and his motherso it was alleged-had persistently pursued the prosecutors and libelled them. At the last monthly session Riley got the case postponed on the declaration that he would justify all his statements. Again, on the next day, he got the case adjourned on the same plea. Now no attempt was made at a justification.-Sentence of three months' imprisonment was passed.

These two recent cases sufficiently attest the power of the Court to visit libels with severe punishment. The duration of the sentences is, as already seen, regulated by the provisions of the 6 & 7 Vict. c. 96, sects. 2 & 3.

CHAPTER XI.

WHAT CONSTITUTES A PUBLICATION?

THE question of publication is an important determining fact in every case of libel, for without its proof no action is sustainable. There are various modes of publication (Burdett v. Abbott, 4 B. & A. 160); but subject to the exception of privilege a communication to a third party of any defamatory matter is actionable, and in case of libel "it is nothing more than doing the last act for the accomplishment of the mischief intended by it" (per Best, J., in R. v. Burdett, 4 B. & A. 126). The mode of proving a publication in a newspaper was provided by stat. 6 & 7 Wm. 4, c. 76, ss. 7 & 8. So far this is modified by the Act of 1881, which makes an entry in the register of newspaper proprietors evidence, but it can only be so of an individual or representative proprietorship, not of a company, and it can only be evidence of the fact that in July of that year such proprietorship existed (see remarks on Registration). Holroyd, J., held (4 B. & Ald. 143), that the moment a man parts with a libel he ceases to have control over it, unhappily not ceasing to incur liability for it (Griffith v. Lewis, 7 Q. B. 61; Fryer v. Gathercole, 4 Ex. 262; Cook v. Ward, 6 Bing. 409). The inference of malice is presumable where "the tendency and import of the language used in any publication is to defame and injure another" (per Littledale, J., in Haire v. Wilson, 9 B. & C. 645), but it may be rebutted by proof of privilege that circum

CASES OF PUBLICATION.

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stances do entitle it to be so considered, or that the occasion prevents the inference; but then it may be shewn that there was actual express malice (Toogood v. Spyring, 1 Cr. M. & R. 193; Darby v. Ouseley, 1 H. & N. 1; Cooke v. Wildes, 5 E. & B. 328; Tuson v. Evans, 12 Ad. & E. 733; Hemmings v. Gasson, 1 E. B. & E. 346.)

The truth is an answer to an action (per Littledale, J., McPherson v. Daniells, 10 B. & C. 272) not because it negatives the charge of malice, but because it shews plaintiff is not entitled to damages, for the law will not permit a man to recover damages in respect to a character he either does not or ought not to possess. One may publish a libel by reading it aloud (4 B. & A. 160), by selling it or distributing it gratuitously, or sending it by post whereby it gets into the hands of a third party, even to a man's wife (Wenman v. Ash, 13 C. B. 836).

Of course, and properly, more weight attaches to what is written, as the littera scripta have relatively about them every circumstance of deliberateness and consideration which do not usually characterise words which may be spoken in a hurry, or under circumstances of peculiar provocation from the conduct, demeanour and manner of the aggressor. The tendency of the decisions has been to assume that anything defamatory which is found out of the custody of the writer may be held, unless the contrary is proved, to have been published by him. In one case a libellous manuscript was so held, although the writer never directed or authorised its publication (Bond v. Douglas, 7 C. & P. 626; R. v. Lovett, 9 C. & P. 462; Burdett v. Abbott, 5 Dow. H. L. 201; 14 East, 1). Even where criminatory matter was struck out of the copy for the printer by the editor its communication to the editor was

K

held to have been a publication (Tarpley v. Blabey, 2 Bing. N. C. 437). Telling a reporter to publish libellous matter was held in an American case sufficient publication (Clay v. People, 86 Ill. 147), or telling defamatory stories to an editor with a view of their publication (R. v. Cooper, L. J. 15 Q. B.; Adams v. Kelly, Ry. & Moo. 157), or asking the press at meetings to take notice of remarks (Parkes v. Prescott and Ellis, L. R. 4 Ex. 105). Giving a libel to a third party is actionable (Maloney v. Bartley, 3 Camp. 213). All directly concerned in the publication are liable (Lamb's Case, 9 Rep. 60; Burdett v. Abbott, 5 Dow. H. L. 201; Baldwin v. Elphinstone, 2 W. Bl. 1037); the proprietor, editor, printer and publisher; and they can be sued separately or together (Colburn v. Patmore, 1 C. M. & R. 73; 4 Tyr. 677), and there is no contribution. Of course the defendant may conclusively show how a mistake for which he became liable was made. Where a libel had been published charging a man with taking part in a riot it was pleaded that the publication was inserted without malice or gross negligence, and that an apology had been inserted within a reasonable time (Peters and another v. Edwards and another, 3 T. L. R. 694). Willis, J., in summing up said that, to negative negligence, it was merely incumbent on the defendant to shew how the mistake alleged came to be made. No explanation was tendered as to the mistake, and the jury awarded plaintiffs 1007. each. In Day v. Bream (2 M. & Rob. 54) a person delivering a libellous handbill was held responsible (R. v. Dodd, 2 Sess. Cas. 83 and Nutt's Case, Fitz. 47; 1 Barnard). A master is responsible for acts of publication by servants done in the course of their business. In R. v. Alman (5 Burr. 268; R. v. Gutch; Fisher and Alexander, Moo. & Mal.) the sickness of the master was held an excuse, and in Emmens v. Pottle & Sons (16 Q. B.