to that extent, aud no further. As to a husband married on or since January 1st, 1883, see ante, pp. 402, 403.

Where a man and woman sue as husband and wife for defamation of the woman, the defendant may plead that they are not husband and wife; for if so, the male plaintiff has no right of action. (Chantler and wife v. Lindsey, 16 M. & W. 82; 4 Dowl. & Lowndes, 339.) But now see 45 & 46 Vict. c. 75, s. 1, ante, p. 396.

6. Payment into Court.

Payment into court is not strictly a defence; it is rather an attempt at a compromise, practically admitting liability to a certain extent. In all other actions a defendant may pay money into court, while at the same time he denies all liability. But this is not allowed in actions or counter-claims for libel or slander. (Ord. XXII. r. 1.) Here the defendant if he pays money into court at all, must do so "by way of satisfaction which shall be taken to admit the claim or cause of action in respect of which the payment is made." Hence Jones v. Mackie, L. R. 3 Ex. 1; 37 L. J. Ex. 1; 16 W. R. 109; 17 L. T. 151, and Hawkesley v. Bradshaw, (C. A.) 5 Q. B. D. 302; 49 L. J. Q. B. 333; 28 W. R. 557; 42 L. T. 285 are no longer law since October 24th, 1883. I should not, therefore, advise a defendant who has any defence on the merits to pay money into court. If he decides to do so, he should pay in a good round sum; generally turice as much as the defendant himself thinks the plaintiff is entitled to, will be about the right amount for him to pay into court. Generally it is not worth while to pay a farthing or a shilling into court; for it is very improbable that plaintiff will accept that sum, and if the jury do not award more than such contemptuous damages, the judge would probably order the plaintiff to pay his own costs, whether that amount had been paid into court or not.

It is submitted that where the words are defamatory in their natural and obvious meaning and the plaintiff by his innuendo puts on them a more defamatory meaning, the defendant may traverse the innuendo and at the same time pay money into court; as such a traverse is not in that case "a defence denying liability." (See Precedents, Nos. 66, 68, 69.)

7. Apology.

By Lord Campbell's Libel Act (6 & 7 Vict. c. 96), s. 2, in an action for a libel contained in any public newspaper or periodical publication, the defendant may plead that the libel was inserted

without actual malice and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, an apology was published or offered, and may pay money into court by way of amends. (For the form of plea, see Precedent, No. 72.) The words in this section enabling the defendant to pay money into court were repealed in 1879 as being unnecessary, the Rules of 1875 permitting payment into court in every action. But section 2 of the 8 & 9 Vict. c. 75, which requires payment into court as the necessary concomitant of such a plea is not repealed. Money must therefore be paid into court when the pleading is delivered, if not before; otherwise the plea will be struck out. And such payment will operate as an admission of liability. (Order XXII. r. 1.)

If therefore the proprietor of a newspaper desires to rely on this section, he cannot set up any other defence to the action, though he may of course deliver a notice under Order XXXVI. r. 37.

The above section of Lord Campbell's Act applies only to public periodical publications; but s. 1 of the same act empowers any defendant to give in evidence in mitigation of damages in any action, whether of slander or libel, that he made or offered an apology to the plaintiff before action, or at the earliest opportunity afterwards, if he had no opportunity before action. This section distinctly does not empower a defendant to plead an apology; for it requires him with his plea to give notice in writing to the plaintiff of his intention to give such apology in evidence. But there can be no objection now to the defendant making such written notice part of his Defence; indeed that he made such an apology is a material fact on which he relies, within the meaning of Order XIX. r. 4. It is, I think, now open to a defendant, if he think fit, to state in his pleading facts which are no defence, but which tend to mitigate the damages. It can scarcely be said that such a method of pleading embarrasses the plaintiff, for it gives him notice what will be the defendant's case at the trial. Indeed the decisions in Scott v. Sampson, 8 Q. B. D. 491; 51 L. J. Q. B. 380; 30 W. R. 541; 46 L. T. 412; 46 J. P. 408; and Millington v. Loring, 6 Q. B. D. 190; 50 L. J. Q. B. 214; 29 W. R. 207; 43 L. T. 657; 45 J. P. 268, if taken literally, imply that a defendant must always plead such facts in his defence. But this is not the practice, and it may be inferred from Order XXXVI. r. 37, that a defendant is not bound to set out in his pleading the facts on which he proposes to rely in mitigation of damages.

But it is quite another matter for the defendant in his Defence to apologize for the first time, when he had previous opportunities, of which he did not avail himself. Still this is sometimes done when

money is paid into court: it shows that the defendant has taken his counsel's opinion, and acted on it. (See Precedents, Nos. 34, 67.) It certainly cannot embarrass a plaintiff to have placed upon the record a full retractation of the charge accompanied by an expression of regret ; and it should conduce to an amicable settlement. But it is certainly strange pleading; and if the plaintiff wishes to have it struck out, his application will probably be successful; though he can hardly afterwards demand an apology at the trial. In cases within Order XXXVI. r. 37, the defendant should deliver particulars as therein required. (See Precedents, Nos. 67, 68, 69.)

8. Counterclaim.

It is not often that there is a counterclaim in an action for libel or slander, and it would clearly be prejudicial to the fair trial of the action to permit a defendant to raise incongruous issues. Still there is no reason why other libels or slanders published by the plaintiff of the defendant should not be made matter of counterclaim, and the fact that they arise out of a different transaction will be no ground for excluding them (Quin v. Hession, 40 L. T. 70; 4 L. R. (Ir.) 35), if they can be "conveniently disposed of in the pending action." In Nicholson v. Jackson, W. N. 1876, p. 38, where an action had been brought by a director of a company for libel, a counterclaim set up by the defendant for damages for loss sustained in respect of shares bought on false representations, was struck out by Lindley, J. So, in Lee v. Colyer, W. N. 1876, p. 8; Bitt. 80; 1 Charley, 86; 20 Sol. J. 177; 60 L. T. Notes, 157, Quain, J., struck out a counterclaim for not repairing a house, the action being for assault and slander. And where the writ was specially indorsed for two quarters' rent, the defendant was not allowed to set up a counterclaim for libel and slander not connected with the claim for rent. (Rotheram v. Priest, 49 L. J. C. P. 105; 28 W. R. 277; 41 L. T. 558.) But in Dobede v. Fisher, at the Cambridge Summer Assizes, 1880, the late Lord Chief Baron had to try an action of slander, in which there was a counterclaim about a right of shooting over the land occupied by the defendant. (Times for July 29th, 1880.)

Reply.

The plaintiff on receiving the Defence should first consider whether any part of it is such as to entitle him to apply at chambers for an order to amend it. But it does not follow that he should so apply in every case in which he is entitled so to do. (See ante, p. 533.) It

is often better policy to leave a flagrantly bad specimen of pleading unamended, and not to kindly strengthen your adversary's position. No party may dictate to the other how he shall plead; he must satisfy the master at chambers or district registrar that the passage to which he objects is either scandalous (that is, both offensive and at the same time irrelevant), or that it tends to prejudice, embarrass, or delay the fair trial of the action. Then, it may be that his own statement of claim may require amendment; such amendment now takes the place of a "new assignment." (Order XXIII. r. 6.) Or the plaintiff may amend by adding a new defendant. (Edward v. Lowther, 45 L. J. C. P. 417; 24 W. R. 434; 34 L. T. 255.) Next, if the defendant's pleading requires no amendment, particulars may still be demanded. Thus, where the libel imputed that the plaintiffs had infringed defendant's patents, the defendant was ordered to deliver particulars to the plaintiffs, showing in what respects he alleged that the plaintiffs had infringed his patents, and giving references to line and page of his own specifications. (Wren and another v. Weild, 38 L. J. Q. B. 88.) If no facts be stated in a plea of justification the plaintiff should apply for particulars, unless the charge itself be specific and precise; see ante, p. 538. If the facts stated are insufficient in law to justify the imputation, the plaintiff may apply to have the plea struck out or amended. So, too, particulars may be obtained if a plea of privilege does not state the circumstances which render the occasion privileged, and on obtaining such particulars plaintiff may object, as a matter of law, that they disclose no privilege.

A reply as a rule is a mere joinder of issue in actions of defamation, unless there be a counter-claim. This operates as a denial of every material allegation of fact in the pleading of the other side, except admissions. (Ord. XIX. r. 18.) To a plea of absolute privilege no other reply is possible. (See Scott v. Stansfield, L. R. 3 Ex. 220; 37 L. J. Ex. 155; 16 W. R. 911; 18 L. T. 572; Dawkins v. Lord Paulet, L. R. 5 Q. B. 94; 39 L. J. Q. B. 53; 18 W. R. 336; 21 L. T. 581.) To a plea of qualified privilege a special reply is unnecessary, if malice be alleged in the statement of claim or negatived in the defence; see ante, p. 530. On a plea under s. 2 of Lord Campbell's Act, the plaintiff usually joins issue merely, but he may if he likes admit that the libel appeared in a newspaper, and that money had been paid into court; but deny that the libel was inserted without actual malice and without gross negligence, and that the sum of money paid into court is sufficient. (Chadwick v. Herapath, 3 C. B. 885; 16 L. J. C. P. 104; 4 D. & L. 653; Smith v. Harrison, 1 F. & F. 565.) To a general plea of payment into court some pleaders reply specially that the sum

paid in is insufficient; but a mere joinder of issue will raise that point with equal effect. To a justification setting out a conviction, or to a plea of a previous action, the plaintiff may reply specially Nul tiel record; or if the conviction be erroneously stated in the defence (as in Alexander v. N. E. Ry. Co., 34 L. J. Q. B. 152; 11 Jur. N. S. 619; 13 W. R. 651; 6 B. & S. 340), the plaintiff may set it out correctly in his reply. Or to such a conviction the plaintiff may reply a pardon (Cuddington v. Wilkins, Hob. 67, 81; 2 Hawk. P. C. c. 37, s. 48), or that he had undergone his sentence, which will have the same effect (Precedent No. 39; Leyman v. Latimer and others, 3 Ex. D. 15, 352; 46 L. J. Ex. 765; 47 L. J. Ex. 470; 25 W. R. 751; 26 W. R. 305; 37 L. T. 360, 819; 14 Cox, C. C. 51); though I apprehend neither reply would be an answer if the words complained of were that the plaintiff "was convicted of" a crime.

To a plea of the Statute of Limitations, plaintiff may specially reply absence beyond seas under the statute of Anne, ante, p. 521.

Interrogatories.

Great care is necessary in applying former decisions as to interrogatories to the present practice. Before the Judicature Act special leave was required to administer interrogatories, and the propriety of any interrogatory proposed to be administered was discussed on the application for leave, which is not the practice now. Then from November 1st, 1875, to October, 24th, 1883 either party delivered interrogatories as of right, subject only to this-that if he exhibited interrogatories unreasonably, vexatiously, or at improper length, he might have been ordered to pay the costs of them. Now, again, leave is necessary, which will not be granted except in very exceptional circumstances before the defence is delivered; and £5 at least must be paid into Court for the privilege (Ord. XXXI. rr. 1, 26). Then between November 1st, 1875, and November 18th, 1878, the party interrogated was always allowed to apply at chambers to have objectionable interrogatories struck out; this now, as a rule, he may not do; he merely refuses to answer them in his affidavit in answer. (See post, p. 550.)

In actions of slander, too, the courts formerly felt a great reluctance in allowing any interrogatories at all to be administered. (Stern v. Sevastopulo, 14 C. B. N. S. 737; 32 L. J. C. P. 268.) In fact, there is only one instance reported of such interrogatories being allowed before the Judicature Act, and in that case (Atkinson v. Fosbroke, L. R. 1 Q. B. 628; 35 L. J. Q. B. 182; 12 Jur. N. S. 810; 14 W. R.