No. 21.

Particulars.

Delivered pursuant to the order of Master Walton, made herein and dated the 21st day of March 1887.

The following are the best particulars the plaintiff can give of the times, places and persons, when, where and to whom the alleged libels and slanders were published, and of the damages sustained by him : 1. The said libel was written by the defendant, and published by him to A. B. of -, on or about December 29th 1886,

and to C. D. of

at at

on or about January 2nd 1887.

The plaintiff is unable at present to name anyone else to whom the said libel was published, but believes that the defendant kept a copy of the said libel and showed it to several other persons, and will deliver further particulars of their names as soon as they are ascertained.

2. The said slanders were uttered in the month of December 1886, in the presence of G. R., of 20 High Street, in the said city, and his manager, W. K., at 20 High Street, aforesaid.

3. The following persons who used formerly to deal with the plaintiff ceased to do so in consequence of the defendant's conduct: M. N. of

The profits of the plaintiff's business have fallen from £730 to £420 per annum.

Dated this 29th day of March 1887.

R. & F., Solicitors for the plaintiff.

To the defendant, or Messrs. S. & P., his solicitors.

DEFENCES.
No. 22.
Traverses.

1. The defendant never spoke or published the words set out in paragraph 2 of the statement of claim or any of them.*

*The words "falsely and maliciously" must not be traversed, unless pleas of justification and privilege follow; and even then such a traverse is superfluous. (Belt v. Lawes, 51 L. J. Q. B. 359.)

No. 31.

No conscious Publication.

EMMENS v. POTTLE & SON, (C. A.) 16 Q. B. D. 354; 55 L. J. Q. B. 51; 34 W. R. 116; 53 L. T. 808; 50 J. P. 228; 1 C. & E. 553.

DEFENCE.

"1. The defendants deny that they published the alleged libels. "2. Further and alternatively the defendants say that they are newsvendors carrying on a large business at 14 and 15, Royal Exchange in the city of London, and as such newsvendors and not otherwise, sold copies of the said periodical called "Money" in the ordinary course of their business and without any knowledge of its contents; which are the alleged publications."

No. 32.

Reply to No. 31.

"1. The plaintiff joins issue on the 1st paragraph of the defence. "2. As to the 2nd paragraph of the defence the plaintiff says that the allegations therein contained are bad in substance and in law, on the ground that even if the defendants sold copies of the said periodical without any knowledge of their contents and in the ordinary course of their business as alleged in their defence, still, inasmuch as the defendants sold the said copies as newsvendors for reward in that behalf, the said allegations disclose no answer to the claim of the plaintiff."

No. 33.

Innocent publication of a Libellous Novel.

1. The defendants admit that they printed and published the book or novel in the statement of claim mentioned, but deny that they did so maliciously. The defendants printed and published the said book or novel for the writer thereof, reasonably and bonâ fide believing the same to be a work of pure fiction. The defendants were not then aware and do not now admit that the said book or novel alluded to the plaintiffs or to any other living person.

It may be doubted whether this is a defence to the action or only a plea in mitigation of damages; see ante, pp. 160, 435; R. v. Knell, 1 Barnard. 305; Smith v. Ashley, 52 Mass. (11 Met.) 367.

No. 34.

No conscious Publication.-Madness.

"1. The defendant does not admit that he ever spoke or published the words complained of in paragraphs 3 and 4 of the statement of claim.

"2. Throughout the month of April and the early part of May 1879 the defendant was suffering from acute mania, brought on by overwork; he has no recollection of having spoken any such words as alleged either then or at any other time. If, however, the defendant did in fact utter any such words (which he does not admit), they were not spoken intentionally or maliciously, but solely in consequence, and under the influence, of the said mania; as all who heard the said words then well knew. There is and was no foundation whatever for any such charge; and the defendant unreservedly withdraws all imputation on the plaintiff's character, and exceedingly regrets that he ever spoke the said words (if in fact he did speak them, which he does not admit)."

It may be doubted whether this is a good defence, or only a pleading in mitigation of damages. A somewhat similar plea of drunkenness will be found, post, No. 67. See ante, p. 406.

No. 35.

Words spoken in Jest.

Defence to Claim No. 9.

1. The defendant admits that he spoke and published the words set out in paragraph 2 of the statement of claim, but denies that he spoke them with the meaning in that paragraph alleged.

2. The defendant is, and at all times hereinafter mentioned was, clerk to Mr. N., a wholesale baker. The plaintiff is one of Mr. N.'s retail customers. It is and was one of the duties of the defendant as such clerk to call on Mr. N.'s retail customers every Saturday morning and receive the money due for the bread delivered to them in the course of the week.

3. On the morning of Saturday March the 27th 1886 the defendant called on the plaintiff and took the money for the bread delivered to him during the week. Amongst the change then given

by the plaintiff to the defendant was a counterfeit florin. Neither the plaintiff nor the defendant knew or observed at the time that the florin was counterfeit.

4. Later in the day when the defendant was paying the money over at the office, his employer, Mr. N., discovered that the said florin was counterfeit. The defendant thereupon took the said florin back to the plaintiff's shop, and the plaintiff gave him without demur two good shillings in exchange therefor.

5. On the morning of Saturday May the 8th 1886, when the defendant called on the plaintiff as usual, the plaintiff again gave the defendant a counterfeit florin amongst the money for the bread. And again neither the plaintiff nor the defendant knew or observed at the time that the florin was counterfeit.

6. Again, when the defendant was paying the money over to his employer at the office, Mr. N. discovered that the florin was counterfeit. Thereupon the defendant, recollecting the similar occurrence mentioned in paragraphs 3 and 4 above, exclaimed :-" Why, that's the second bad florin Mr. H. has passed to me within the last six weeks. He's a regular 'smasher'!"

7. The defendant spoke these words as a joke, and never intended seriously to impute to the plaintiff any criminal offence.

8. The only persons who were present at the time or who heard the said words were the defendant's employer, Mr. N., and a fellow-clerk of his, one David Griggs. Both Mr. N. and David Griggs were aware of the circumstances detailed above, and knew to what the defendant was referring, and understood that he spoke in joke, and did not intend to make any serious charge against the plaintiff.

[N.B.--This is a conciliatory line of defence. The plaintiff, if well advised, will at once settle the matter amicably. If he does not, the defendant is almost sure of a verdict. (See ante, pp. 106, 108; Thompson v. Bernard, 1 Camp. 48.) But sometimes a defendant, if foolish and angry, insists on setting up a more vindictive defence. He denies uttering the words, so as to compel the tell-tale Griggs to come into the box and be cross-examined; and he then proceeds to justify. These tactics will infallibly lead to a verdict for the plaintiff with heavy damages.]

JUSTIFICATION.

No. 36.

Another Defence to Claim No. 9.

1. The defendant does not admit that he spoke or published the words set out in the statement of claim.

2. The said words are true in substance and in fact. On March 27th 1880 the plaintiff uttered and passed to the defendant a counterfeit florin, well-knowing the same to be counterfeit. On May 8th 1880 the plaintiff uttered and passed to the defendant another counterfeit florin, well-knowing the same to be counterfeit. [State any other instances in which the plaintiff passed bad coin to the defendant or others.] Wherefore the defendant says that the plaintiff is a regular "smasher," and has uttered, and has been in the habit of uttering, counterfeit coin, well-knowing the same to be counterfeit ; and has been guilty of divers misdemeanors.

No. 37.

Justification of the Words without the alleged meaning.

"3. The defendant denies that he spoke or published the words set out in paragraph 5 of the statement of claim with the meaning therein alleged, or at all with reference to the plaintiff's trade of a builder or his mode of conducting the same, or in any defamatory sense. The said words, without the said meaning, and according to their natural and ordinary signification, are true in substance and in fact. Particulars are delivered herewith. They exceed three folios." (See ante, p. 177.)

No. 38.

Justification of a portion of a Libel.

LEYMAN V. LATIMER AND OTHERS, 3 Ex. D. 15, 352; 47 L. J. Ex. 470; 25 W. R. 751; 26 W. R. 305; 37 L. T. 360, 819.

DEFENCE.

1. The defendants do not admit that the plaintiff is the proprietor and editor of the Dartmouth Advertiser newspaper.