(Order II. r. 4), and such leave will only be granted in the cases specified in Order XI. (In re Eager, Eager v. Johnstone, (C. A.) 22 Ch. D. 86; 52 L. J. Ch. 56; 31 W. R. 33; 47 L. T. 685), which greatly limits the powers formerly possessed by the court. The effect of this Order is practically to prevent any action being brought here for damages for any libel or slander published abroad, and also for any libel or slander published here by a person ordinarily resident abroad, unless he happens to come to England, so that personal service can be effected. The fact that a newspaper published abroad has a branch office in this country will not enable a plaintiff to serve a writ at the branch office without leave under this rule. (Jones v. Scottish Accident Insurance Co. Limited, 17 Q. B. D. 421; 55 L. J. Q. B. 415; 55 L. T. 218; Baillie v. Goodwin & Co., 33 Ch. D. 604; 55 L. J. Ch. 849; 34 W. R. 787; 55 L. T. 56.) There can be no substituted service of a writ in an action where there cannot in law be personal service of the writ. (Field v. Bennett, 56 L. J. Q. B. 89.) And if the words be spoken out of jurisdiction, the fact that they incidentally affect property within jurisdiction is not sufficient to bring the case within Order XI. (Casey v. Arnott, 2 C. P. D. 24; 46 L. J. C. P. 3; 25 W. R. 46; 35 L. T. 424.)

But the plaintiff will be entitled to leave under Order XI. r. 1 (ƒ) if he adds a claim for an injunction on his writ. (Tozier and Wife v. Hawkins, 15 Q. B. D. 650, 680; 55 L. J. Q. B. 152; 34 W. R. 223.) And it has been held that it is not necessary that he should ask for an injunction only; he may claim other relief as well. (Lisbon-Berlyn Gold Fields Limited v. Heddle, 52 L. T. 796.) But the judge at chambers, when granting leave to serve the writ out of jurisdiction, may, if he think fit, limit the plaintiff to that portion of his claim in respect of which it shall appear at the trial that the writ could have been properly served out of jurisdiction. (Thomas v. Duchess Dowager of Hamilton, (C. A.) 17 Q. B. D. 592; 55 L. J. Q. B. 555 ; 35 W. R. 22; 55 L. T. 219, 385.) The court will, in a proper case, give leave for the issue of a concurrent writ for service out of jurisdiction, although the original writ was issued for service within jurisdiction. (Smalpage v. Tonge, (C. A.) 17 Q. B. D. 644; 55 L. J. Q. B. 518; 34 W. R. 768; 55 L. T. 44.)

Choice of Court.

Next, in what court shall the action be brought? The County Court has no jurisdiction (9 & 10 Vict. c. 95, s. 58), unless by consent of both parties (19 & 20 Vict. c. 108, s. 23); although the action may

subsequently be remitted to the County Court (see post, pp. 526-8). Where the particulars before a County Court judge disclose a cause of action for libel or slander, he has no power to amend them so as to give himself jurisdiction, e. g., by turning the case into an action for false imprisonment. (Hopper v. Warburton, 7 L. T. 722.) The Courts of Equity before the Judicature Act had no cognizance over libels or slander, whether public or private, except as contempt of their own courts. (Roach v. Garvan, Re Read and another, 2 Atk. 469; 2 Dick. 794.) The Chancery Division now undoubtedly has jurisdiction to try a case of libel. (Thomas v. Williams, 14 Ch. D. 864; 49 L. J. Ch. 605; 28 W. R. 983; 43 L. T. 91.) But it is obviously inexpedient to commence such an action there; for libel or no libel is peculiarly a question for a jury. In Thomas v. Williams, the defendant never expressed a wish for a jury till the whole of the evidence on both sides had been put in; had he applied sooner, Fry, J., would have changed the mode of trial. (See 14 Ch. D. 871.) If an injunction be desired, it can be obtained as readily in one Division as in the other. For every reason, therefore, it is best to issue the writ in the Queen's Bench Division of the High Court of Justice.

If, however, the defendant be an undergraduate resident within the University of Oxford or Cambridge, he must be sued in the University Court, although the plaintiff be in no way connected with the University or resident within its limits, and although the libels complained of appeared in several London newspapers. (Ginnett v. Whittingham, 16 Q. B. D. 761; 55 L. J. Q. B. 409; 34 W. R. 565.)

Statute of Limitations.

It is seldom that a plaintiff in an action of defamation allows his remedy to be barred by lapse of time. He is generally too eager to commence proceedings, and will not wait till his special damage has fully accrued. (See Ingram v. Lawson, 6 Bing. N. C. 212; 8 Scott, 471; 9 C. & P. 326; 4 Jur. 151; Goslin v. Corry, 7 M. & Gr. 342; 8 Scott, N. R. 21.) Still, the Duke of Brunswick waited nearly eighteen years; it may be as well therefore to state that an action of slander for words actionable per se must be brought "within two years next after the words spoken, and not after" (21 Jac. I. c. 16, s. 3), and that an action for libel or of scandalum magnatum must be brought within six years from the date of publication. (Lord Say & Seal v. Stephens, cited Cro. Car. 535; Litt. 342.) Whenever the words are actionable only by reason of special damage, the time does not begin to run till the damage has actually been sustained. (Saun

ders v. Edwards, 1 Sid. 95; 1 Keble, 389; Sir T. Raym. 61; Littleboy v. Wright, 1 Lev. 69; 1 Sid. 95; Darley Main Colliery Co. v. Mitchell, (H. L.) 11 App. Cas. 127; 55 L. J. Q. B. 529; 54 L. T. 882.) And then I presume the plaintiff has six years within which to sue and not merely two, as the 21 Jac. I. c. 16, does not apply; but see Littleboy v. Wright, supra. Lord Campbell was evidently under a misapprehension as to the effect of stat. 21 Jac. I. c. 16, in his remarks in 9 H. L. C. p. 513. In all other cases the time runs from the date of publication, unless indeed the party then entitled to bring the action be under any disability, or be beyond the seas (21 Jac. I. c. 19, s. 7; 4 & 5 Anne, c. 3 (al. c. 16), s. 19; 3 & 4 Will. IV. c. 42, s. 7; 19 & 20 Vict. c. 97, s. 12). But if once such disability be removed and the time begin to run, nothing afterwards can stop it.

But the publication relied on to oust the statute need not be the original or substantial publication. Thus, if any agent of the plaintiff can induce the defendant to sell him an old copy of the libel, published many years ago, such second publication, although contrived by the plaintiff for the very purpose, will be sufficient to disprove the plea of the Statute of Limitations. And that plea being once ousted the jury will not be confined, it is said, to that single publication within the six years, but may take all the circumstances into their consideration. (Duke of Brunswick v. Harmer, 14 Q. B. 185; 19 L. J. Q. B. 20; 14 Jur. 110; 3 C. & K. 10.)

Former Proceedings.

That a previous action has already been brought and damages recovered against the same defendant for the same words is a bar to any subsequent action, even though fresh damage has since arisen. therefrom. (Ante, p. 295.) For the jury in the former action must be taken to have assessed the damages once for all; and the probability or possibility that this subsequent damage would follow should have been submitted to their consideration then. Whether this is so, when the words are not actionable in themselves, may be doubted. (See ante, p. 306.) So if the prior action was unsuccessful, this will also be a bar to the action; unless, indeed, the plaintiff was only nonsuited on some technical ground, and the judge, in giving judgment of nonsuit, expressly declared that it was a common law nonsuit, and that the plaintiff might bring a second action.

But it must be clear that the cause of action is the same in both cases. Thus, where the declaration in an action of slander alleged that the defendant spoke of the plaintiff, in the way of his trade, the words, "He cheated me;" "He is a thief, and robbed me of £100;" and

contained an averment of special damage, the defendant pleaded a former judgment recovered for the same grievances; but the record of the previous action showed the slanderous words to have been, "That thief is a villain, a scoundrel, and a rascal, and I can prove him a thief at any moment;" and it neither alleged that the words were spoken of the plaintiff in the way of his trade, nor contained an averment of special damage. This was held to be no bar to the action. "I cannot think," said Crompton, J., "that the cause of action in that record which contains words charging the plaintiff with felony is the same cause of action as that in the present declaration, which imputes a charge against the plaintiff as a trader." (Wadsworth v. Bentley, 23 L. J. Q. B. 3; 17 Jur. 1077; 2 C. L. R. 127; 1 B. C. Cases (L. & M.) 203.)

So, too, a previous recovery against another person may be a bar to the present action, if the former defendant was jointly concerned with the present defendant in the very publication now sued on. Thus, if A. & B. be in partnership, either as printers or publishers of a newspaper, a previous judgment recovered against A. would be a bar to any action against B. for the same libel, even though the judgment obtained in the prior action be not satisfied. (Brown v. Wootton, Cro. Jac. 73; Yelv. 67; Moo. 762; King v. Hoare, 13 M. & W. 494, 504; Duke of Brunswick v. Pepper, 2 C. & K. 683; Brinsmead v. Harrison, L. R. 7 C. P. 547; 41 L. J. C. P. 190; 20 W. R. 784; 27 L. T. 99 ; Munster v. Cox, 1 Times L. R. 542.) But this is only because they ought to have been sued jointly, and could even before the Judicature Act have been so sued. Where two are severally liable, judgment against one is no bar to an action against the other. Thus, a previous judgment against the proprietor of a newspaper, even though satisfied, is no bar to an action for the same libel against the author. (Frescoe v. May, 2 F. & F. 123.) A fortiori the fact that heavy damages had been recovered against one newspaper is no bar to an action against another newspaper which has published the same libel. The defendant cannot give evidence in chief of such previous recovery even in mitigation of damages (Creery v. Carr, 7 C. & P. 64); nor of the fact that other actions are pending. (Harrison v. Pearce, 1 F. & F. 567; 32 L. T. (Old S.) 298.) In America, it seems, no judgment against another will be a bar, unless it be satisfied. (Lovejoy v. Murray, 3 Wallace (Supr. Ct.) 1; Thomas v. Rumsay, 6 Johns. (N. Y.) 26; Brown v. Hirley, 5 Upper Canada, Q. B. Rep. (Old S.) 734; Breslin v. Peck, 38 Hun, (45 N. Y. Supr. Ct.) 623.)

That former criminal proceedings have been taken by way of indictment for the same libel is no bar to an action, whether the prisoner was acquitted or convicted (Peacock v. Reynal, 2 Brownlow

and Goldesborough, 151; 16 M. & W. 825, n.); though I should not advise such an action in either case, except under very special circumstances. But if the former criminal proceedings were taken by way of criminal information, then, if the rule nisi has been made absolute, clearly no civil action can be brought (R. v. Sparrow, 2 T. R. 198); and probably not if the rule was discharged on showing cause, all the courts at Westminster being now merged in one (Wakley v. Cooke and another, 16 M. & W. 822; 16 L. J. Ex. 225); unless the court thought a civil action the more appropriate remedy, and discharged the rule in order that civil proceedings might be taken. (Ex parte Hoare, 23 L. T. 83.)

Joinder of Causes of Action.

The Judicature Act gives a plaintiff very wide powers of joining several causes of action in one writ; but as a rule, in cases of libel and slander the plaintiff should not avail himself of these provisions. Defamation is a matter sui generis, and it would be imprudent to complicate the issue by joining irrelevant claims. Of course any number of libels or slanders published by the same defendant may well be sued for in the same action, unless they be wholly disconnected. So, too, a claim for malicious prosecution, or wrongful dismissal, or even assault, may be joined, if it arises out of the same circumstances, and will be substantiated by the same witnesses, as the claim for libel or slander. Thus, where the plaintiff alleged that a foreign merchant and his Manchester agent had conspired to libel the plaintiff in the way of his trade, the court allowed this joint cause of action to be joined with claims against each defendant severally for the same libels or other similar ones. (Desilla v. Schunck & Co. & Fels & Co., Weekly Notes, 1880, p. 96.)

Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant (Order XVIII. r. 6). Claims by or against husband and wife may be joined with claims by or against either of them separately (Order XVIII. r. 4). But these rules are expressly declared (r. 7) to be subject to rr. 1, 8, 9, of the same Order, which enact that if a plaintiff unites in the same action several causes of action which cannot be conveniently tried or disposed of together, a master or district registrar, on the application of the defendant, may strike out some of such causes of action, or order separate trials to be had.

Endorsement on Writ.

The writ must be endorsed with a plain statement of the nature of the action :-e.g., "The plaintiff's claim is for damages for libel" or