before the court, clearly used not in that ordinary meaning, but in some peculiar sense; as in the case of many slang expressions. But where the words are well-known and perfectly intelligible English, evidence cannot be given to explain that meaning away, unless it is first in some way shown that that meaning is for once inapplicable. This may appear from the words themselves: to give them their ordinary English meaning may make nonsense of them. But if with their ordinary meaning the words are perfectly good sense as they stand, facts must be given in evidence to show that they may have conveyed a special meaning on this particular occasion. After that has been done, a bystander may be asked, "What did you understand by the expression used ?" But without such a foundation being laid, the question is not admissible. (Daines v. Hartley, 3 Exch. 200; 18 L. J. Ex. 81; 12 Jur. 1093; Barnett v. Allen, 3 H. & N. 376; 27 L. J. Ex. 415; Humphreys v. Miller, 4 C. & P. 7; Duke of Brunswick v. Harmer, 3 C. & K. 10.) And if it be put and answered, the answer is not evidence; the jury must not act on it. (Simmons v. Mitchell, 6 App. Cas. 156; 50 L. J. P. C. 11; 29 W. R. 401; 43 L. T. 710.) And this is so, whether the word can be found in the last edition of the English dictionary or not. (Homer v. Taunton, 5 H. & N. 661.) Figurative or allegorical terms of a defamatory character, if of wellknown import, need no evidence to explain their meaning; e.g. words imputing to a person the qualities of the "frozen snake" in the fable. (Hoare v. Silverlock, 12 Q. B. 624; 17 L. J. Q. B. 306.) Nor do historical allusions or comparisons to odious, notorious or disreputable persons: thus, where the conduct of the plaintiff, in a case which he conducted as attorney for one of the parties, was compared to that of "Messrs. Quirk, Gammon and Snap," the novel "Ten Thousand a Year" was put in and taken as read. (Woodgate v. Ridout, 4 F. & F.202.)

Wherever the words sued on are susceptible both of a harmless and an injurious meaning, it will be a question for the jury to decide which meaning was in fact conveyed to the hearers or readers at the time of publication. It will be of no avail for the defendant to urge (except, perhaps, in mitigation of damages) that he intended the words to convey the innocent meaning, if the jury are satisfied that ordinary bystanders or readers would certainly have understood them in the other sense. (Fisher v. Clement, 10 B. & C. 472.) Every man must be taken to have intended the natural and probable consequences of his act. The plaintiff may give evidence of surrounding circumstances from which a defamatory meaning can be inferred; he may call witnesses to state how they understood the libel; though the jury

are not bound to adopt the opinions of such witnesses. (Broome v. Gosden, 1 C. B. 732.) Also in this case evidence of subsequent words of the same import may be given, so as to explain and point the libel charged. (Pearce v. Ornsby, 1 M. & Rob. 455; ante, p. 98.)

The plaintiff may also show that the words, though apparently commendatory, were spoken ironically.

If, however, the words are in their primary sense not actionable, and there is no evidence of any facts known both to the writer and the person to whom he wrote, which could reasonably induce the latter to put upon them any actionable secondary meaning, the judge should stop the case. (Capital and Counties Bank v. Henty and Sons, (C. A.) 5 C. P. D. 514; 49 L. J. C. P. 830; 28 W. R. 851; 43 L. T. 651; (H. L.) 7 App. Cas. 741; 52 L. J. Q. B. 232; 31 W. R. 157; 47 L. T. 662; 47 J. P. 214; ante, p. 115; Ruel v. Tatnell, 29 W. R. 172; 43 L. T. 507.) So, too, if the words are not reasonably susceptible of the defamatory meaning put upon them by the innuendo, the judge should nonsuit the plaintiff. (Mulligan v. Cole and others, L. R. 10 Q. B. 549; 44 L. J. Q. B. 153; 33 L. T. 12; ante, p. 117.) If, however, in his opinion the words are capable of the meaning ascribed to them by the innuendo, and there is any evidence to go to the jury that they were used with that meaning, then it will be for the jury to decide whether in fact the words were understood in that sense by those who heard or read them.

Proof that the Words refer to the Plaintiff.

If the libel does not name the plaintiff, there may be need of some evidence to show who was meant. The plaintiff may give evidence of all "surrounding circumstances;" i.e., the cause and occasion of publication, later statements made by the defendant, and other extraneous facts which will explain and point the allusion. The plaintiff may also call at the trial his friends or others acquainted with the circumstances, to state that on reading the libel they at once concluded that it was aimed at the plaintiff. (Broome v. Gosden, 1 C. B. 728; R. v. Barnard, Ex parte Lord R. Gower, 43 J. P. 127; ante, p. 133.) It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant. (Bourke v. Warren, 2 C. & P. 310.) [In Eastwood v. Holmes (1 F. & F. 349), Willes, J., would not allow a witness to be asked, "To whom did you understand the words to apply?" on the ground that that was the question for the jury. But the circumstances

of that case were peculiar.] Evidence that the plaintiff was jeered at at a public meeting is admissible to show that his neighbours understood the libel as referring to him. (Cook v. Ward, 4 M. & P. 99; 6 Bing. 412.) So, in Du Bost v. Beresford (2 Camp. 511), Lord Ellenborough held that the declarations made by spectators, while they were looking at a libellous caricature, were admissible in evidence to show whom the figures were intended to represent.

Proof that the Words were spoken of the Plaintiff in the way of his Office, Profession, or Trade.

It is not enough for the plaintiff to prove his special character, and that the words refer to himself; he must further prove that the words refer to himself in that special character, if they be not otherwise actionable. It is a question for the jury whether the words were spoken of the plaintiff in the way of his office, profession, or trade. It is by no means necessary that the defendant should expressly name the plaintiff's office or trade at the time he spoke, if his words must necessarily affect the plaintiff's credit and reputation therein. (Jones v. Littler, 7 M. & W. 423; 10 L. J. Ex. 171. See ante, p. 125.) But often words may be spoken of a professional man which, though defamatory, in no way affect him in his profession, e. g., an imputation that an attorney had been horsewhipped off the course at Doncaster (Doyley v. Roberts, 3 Bing. N. C. 835; 5 Scott, 40; 3 Hodges, 154; ante, p. 77), or that a physician had committed adultery. (Ayre v. Craven, 2 A. & E. 2; 4 N. & M. 220; ante, p. 78. See further, ante, pp. 67—71.) But any imputation on the solvency of a trader, any suggestion that he had been bankrupt years ago, is clearly a reflection on him in the way of his trade. (Ante, p. 80.)

Evidence of Malice.

The judge must decide whether the occasion is or is not privileged, and also whether such privilege is absolute or qualified. If he decide that the occasion was one of absolute privilege, the defendant is entitled to judgment, however maliciously and treacherously he may have acted. If, however, the privilege was only qualified, the onus lies on the plaintiff of proving actual malice. (Clark v. Molyneux, (C. A.) 3 Q. B. D. 237; 47 L. J. Q. B. 230; 26 W. R. 104; 37 L. T. 694.) This he may do either by extrinsic evidence of personal ill-feeling (ante, pp. 275-281), or by intrinsic evidence, such as the exaggerated language of the libel, the mode and extent of

publication, and other matters in excess of the privilege. (Ante, pp. 281-290.) Any other words written or spoken by the defendant of the plaintiff, and indeed all previous transactions or communications between the parties, are evidence on this issue. The defendant often makes the mistake of cross-examining the plaintiff severely on such previous matters, with the view no doubt of showing that in all these transactions the plaintiff was solely to blame. The jury, as a rule, will hold both parties to a silly quarrel equally blameworthy. But even if they adopt the defendant's view that all the provocation was given by the plaintiff, this will only tell against the defendant. For such provocation must produce a feeling of resentment, or at least of injured innocence, in the defendant's mind; and if, under the influence of such feeling, he writes or speaks a falsehood of his late antagonist, such falsehood will probably be deemed spiteful and malicious.

Placing plea of justification on the record is no evidence of malice. (Wilson v. Robinson, 7 Q. B. 68; 14 L. J. Q. B. 196; 9 Jur. 726; Caulfield v. Whitworth, 16 W. R. 936; 18 L. T. 527.) But persisting in it may be, if there be any other circumstance in the case suggesting malice, but not otherwise. (Warwick v. Foulkes, 12 M. & W. 508.) Care must be taken in citing Simpson v. Robinson (12 Q. B. 511), to refer to the judgments of the court; as the headnote is declared by Willes, J., in Caulfield v. Whitworth, to be misleading. Proof that the defendant at the time of publication knew that what he was saying or writing was false, is proof positive of malice. Proof that in fact the words are untrue is no evidence of malice (ante, p. 272); the falsity of the words is indeed always presumed in the plaintiff's favour. (Brown v. Croome, 2 Stark. 297; Cornwall v. Richardson, R. & M. 305; Guy v. Gregory, 9 C. & P. 584; Brine v. Bazalgette, 3 Exch. 692; 18 L. J. Ex. 348. There must have been some other facts suggesting malice in Palmer v. Hummerston (1 Cababé & Ellis, 36); or else Day, J., thought it safer to leave the question to the jury and so put an end to the litigation. Hence the plaintiff cannot, as a rule, give any evidence of his own good character. (Ante, p. 310.) But where the parties have been living in the same house for a long time, as master and servant, and the master must have known the true character of his servant, and yet has given a false one, there the plaintiff is allowed to give general evidence of his good character, and to call other servants of the defendant to show that no complaints of misconduct were made against the plaintiff whilst he was in defendant's service; for such evidence tends to show that defendant, at the time he gave plaintiff a bad character, knew that what he was writing

was untrue, which would be proof positive of malice. (Fountain v. Boodle, 3 Q. B. 5; 2 G. & D. 455; Rogers v. Sir Gerras Clifton, 3 B. & P. 587, ante, p. 203.) But in any other case, if no justification be pleaded, and yet the plaintiff's counsel gives evidence of the falsity of the libel, this will let in evidence on the other side of the truth of the statement. (Per Lord Ellenborough in Brown v. Croome, 2 Stark. 298, 299.)

no.

Rebutting Justification.

The plaintiff may object at the trial that a plea of justification is insufficient, whether such objection has been taken on the pleadings or Edmonds v. Walter and another (3 Stark. 7) is now bad law. The plaintiff's counsel may, if he chooses, in the first instance rebut the justification; or he may leave such proof till the reply, when he will know the strength of defendant's case. But he cannot, in the absence of special circumstances, call some evidence to rebut the justification in the first instance, and more afterwards, thus dividing his proof. (Browne v. Murray, R. & M. 254.)

Evidence of Damage.

The plaintiff need give no evidence of any actual damage where the words are actionable per se; he can nevertheless recover substantial damages. (Tripp v. Thomas, 3 B. & C. 427; 1 C. & P. 477; Ingram v. Lawson, 6 Bing. N. C. 212.) But if the plaintiff has suffered any special damage, this should be pleaded and proved. It cannot be proved unless it has been pleaded. (Bluck v. Lovering, 1 Times L. R. 497.) As to what constitutes special damage, see ante, pp. 297-309. As to what damage is too remote, see ante, pp. 325–336.

Where the words are not actionable per se, the plaintiff cannot prove a general loss of custom; he must call individual customers and friends to state why they have ceased to deal at his shop, or to entertain him. (Ante, p. 303). Such witnesses cannot, however, be called unless their names have been set out in the statement of claim or the particulars. It must also be proved that they heard of the charge against the plaintiff from the defendant, and from no one else. It will not be sufficient to prove that they heard a rumour, and that the defendant set such a rumour afloat. (See ante, p. 330; Dixon v. Smith, 5 H. & N. 450; 29 L. J. Ex. 125; Bateman v. Lyall, 7 C. B. N. S. 638.)

The plaintiff may also call evidence in aggravation of damages, as to which see ante, pp. 309-311.