the defendant is at liberty, under the general plea, to give every matter of justification or excuse in evidence, the action for slander furnishes an exception in the instance where the defendant relies on the truth of his assertion; and such a defence contains an intrinsic necessity for making it an exception; but here no such reasons oppose themselves to the general rule; there is no room for surprize, since the plaintiff is informed by the pub lication itself that it purports to be a report of a parliamentary or judicial proceeding. It seems difficult to assign a distinction in principle between this case and those where the words are spoken in the course of a judicial proceeding, by a judge, counsellor, or witness, in the latter, since the law excludes the idea of malice, the situation of the party is evidence under the general issue; and the reason applies with equal force to the defence in question, where the law protects the defendant on grounds of public expediency in the fair publication of judicial or parliamentary proceedings, and will not permit his conduct to be attributed to malice.

It does not appear that a defendant, who repeated the slander of another, and who has given up his author, is under the necessity of pleading the matter specially * The defence in such case does not depend upon naming the author and his scandal in the plea, but is grounded entirely on 'the

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circumstance of the defendant's having, at the time of publication, supplied the plaintiff with the means+ of obtaining a remedy against a former publisher.

The situation of a person thus lending his aid to an injured party, repels, at least, in the first instance, if it does not wholly obstruct the inference of legal malice.

In an action for words, alleging loss of marriage with J. S., the defendant, under the general issue, offered to prove that J. S. was the plaintiff's aunt; but it was held that the evidence was inad missible, that the right to marry could not then be tried, and that it was sufficient if they intended to marry; and that the woman, for that cause, refused.

It seems difficult to support this decision on legal principles, since the preventing that, which could not legally have taken place, can scarcely be considered as a damage for which the plaintiff is entitled to recover a compensation.

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But, 2dly, though the defendant may, with the exceptions mentioned, reserve his defence till the trial, he frequently has it in his election to answer the plaintiff specially upon the record. And the rule, as laid down down in the fourth report, is, that the defendant shall never be put to the general issue, when he confesses the words and justifies them, or

*The case of Sir C. Gerard's bailiff, B, N. P, 7, † 4 Co. 14, Pop. 66,

confesses the words, and by special matter shews that they are not actionable.

Since the plaintiff's ground of action consists of the defendant's having maliciously published concerning him that which has occasioned temporal prejudice, and according to the foregoing rule, the publication of the actionable words must be confessed, it follows that the defendant may plead any matter in bar which either rebuts the malice, or shews that no damage, either presumptive or actual, has been sustained.

Where the defendant has uttered the alleged slander in a judicial proceeding, or in correctly reporting parliamentary or judicial proceedings, he may justify by pleading the fact, since in these cases the presumption of law is conclusive in fa vour of the defendant; so where the defendant, at the time of publication †, gives up his author, unless it appear that he really knew the charge to be false, the presumption is equally strong in his fa vour, and he may plead the fact for the rebutting the averment of malice.

purpose

of

So, where a barrister +, in the course of a cause, asserts that which is relevant to the issue, and has been suggested by his client...

In other cases, though the inference of malice may be rebutted on the trial, as by shewing that the party had an interest, or was giving the cha

* Cro. Eliz. 230.

+ 7 T. R. 17. 5 East, 463.

Cro. Jac. 90.

racter of a servant, yet it does not appear that the matter can be exhibited upon the record, since the character in which the defendant alleges himself to have acted is not conclusive as to his intention, and amounts at most to a simple negation of malice, which is included in the general issue.

The damage sustained is either the legal damage, presumed by law in the case of words intrinsically actionable, or an actual damage to be prov-. ed in evidence; and in either case the defendant may shew, by his plea, that none has been sustained; and this may be done in the first instance, either by the introduction of new matter, or by a traverse of facts already stated, shewing that the terms complained of were not used in an actionable sense.

Thus it has been held, that in an action for calling the plaintiff a murderer, it may be pleaded that the word was used in the course of a conversation about unlawful hunting, and that the words merely imported that the plaintiff was a murderer of hares*. So, where the plaintiff declared upon an imputation of an unlawful maintenance, it was held that the defendant might justify, by shewing that the words were used in reference to a lawful maintenancet.

So, in the case of Kinnersley v. Cooper, the plaintiff declared that he had taken an oath, which + Cro. Jac. 90.

* 4 Rep. 14.

Cro. E. 168. b. Rep. 14.

was recorded in the court of the Guildhall, in a judicial proceeding; and that the defendant, speaking of that oath, had said, that he had sworn falsely. The defendant, in his plea, denied that any such oath had been taken; and the plaintiff demurred, on the ground that the taking the oath was but conveyance to the action, and not traversable; and secondly, that the plea was bad, since it amounted to the general issue. But the justices were of opinion that the matter was traversable, since the action was grounded upon it.

In the case of Lord Cromwell v. Denny, the plaintiff declared in scandalum magnatum against the defendant, for having charged him with liking those who maintained sedition,

The defendant pleaded that he was vicar of Northlinham, which was a benefice with the cure of souls; and that the plaintiff procured J, T. and J. G. to preach severally in the church of Northlinham; who, in their sermons, inveighed against the book of Common Prayer, which was established by the Queen and the whole parliament in the first year of her reign, and affirmed it to be super-1 stitious and impious; upon which the plaintiff and defendant, speaking in the said church of these sermons, because the vicar knew that they had licence, nor were authorized to preach, when they were ready to preach, before their sermons, forbade

4 Rep. 14.

no