upon any other question. (Marsh v. Isaacs, 45 L. J. C. P. 505.) So, too, the court may grant a new trial as against one defendant without granting it as to all; though notice of motion must be served on all. (Price v. Harris, 10 Bing. 331; Purnell v. G. W. Ry. Co. and Harris, (C. A.) 1 Q. B. D. 636; 45 L. J. Q. B. 687; 24 W. R. 720, 909; 35 L. T. 605.)

The question of libel or no libel is pre-eminently one for a jury; the court will rarely interfere to set aside a verdict or grant a new trial on the ground that the verdict was against the weight of evidence; especially where the question left to the jury was whether the matter complained of was or was not fair comment on the acts of a public man. (Odger v. Mortimer, 28 L. T. 472.) And whenever the words are fairly susceptible both of an innocent and of an actionable meaning, the finding of the jury is final; whichever construction they may have placed upon the words will be upheld. (Burgess v. Bracher (1724), 8 Mod. 240; 2 Ld. Raym. 1366; 1 Stra. 594; Walter v. Beaver, and Naden v. Micocke (1684), 3 Lev. 166; Sir T. Jones, 235; 2 Ventr. 172; 3 Salk. 325; Grant v. Yates, 2 Times L. R. 368.) "The court never, or very rarely, grants new trials in actions for words." (Per Holt, C.J., Anon. (1696), 2 Salk. 644.)

A new trial will, however, be granted when the matter complained of is clearly libellous, and there is no question as to the fact of publication, or as to its application to the plaintiff, and yet the jury have perversely found a verdict for the defendant, in spite of the summing-up of the learned judge. (Levi v. Milne, 4 Bing. 195; ante, p. 131; Hakewell v. Ingram, 2 C. L. R. 1397.) But unless the jury are manifestly wrong, unless the court can say with certainty that there has been a miscarriage of justice, no new trial will be granted. (Per Tindal, C.J., in Broome v. Gosden, 1 C. B. 731.) If the judge directs the jury that the publication is in law a libel, and the court above hold that it is not, a new trial will be granted on the ground of misdirection. (Hearne v. Stowell, 12 A. & E. 719; 11 L. J. Q. B. 25; 4 P. & D. 696.)

The question whether an apology was or was not sufficient is peculiarly a question for the jury, and their decision cannot be reviewed or set aside by the court. (Risk Allah Bey v. Johnstone, 18 L. T. 620.)

So on any other issue, a new trial will not be granted on the ground that the verdict was against the weight of evidence if the verdict was one which reasonable men could have found. (Webster v. Friedeberg, (C. A.) 17 Q. B. D. 736; 55 L. J. Q. B. 493; 34 W. R. 728; 55 L. T. 49, 295.) A new trial will not be granted on the ground that the jury expressed an opinion during the judge's summing-up incon

sistent with their subsequent verdict (Napier v. Daniel and another, 3 Bing. N. C. 77; 3 Scott, 417); nor on the ground that either judge or jury prematurely expressed a strong opinion as to the case either way. (Lloyd v. Jones, 7 B. & S. 475.) It would be otherwise if a juror before being sworn had expressed a determination to give a verdict in favour of the plaintiff. (Ramadge v. Ryan, 9 Bing. 333; 2 Moo. & Sc. 421.)

In actions of defamation the court very rarely grants a new trial on the ground that the damages are either too small or too great. "The assessment of damages is peculiarly the province of the jury in an action for libel." (Davis & Sons v. Shepstone, 11 App. Cas. 187; 55 L. J. P. C. 51; 34 W. R. 722; 55 L. T. 1; 50 J. P. 709; Maskelyne v. Bishop, Times for December 3rd, 1885.) Still there is no inflexible rule on the subject. Scroggs, J., indeed, contended, in Lord Townshend v. Dr. Hughes (2 Mod. 150), that the court had no power to order a new trial on the ground that the damages (£4,000) were excessive; but Atkins, J., was of the contrary opinion, and gave an instance in which the Court of Queen's Bench had done so. The court, however, declined to exercise their power both in that case and in Highmore v. Earl and Countess of Harrington (3 C. B. N. S. 142), where £750 damages were awarded. A new trial will only be granted where the amount of damages is so large as to satisfy the court that the jury acted perversely and with partiality, or grossly misconceived the case on a matter of principle. Whenever there is any evidence of malice, the jury are entitled to give vindictive damages. In a case where the plaintiff is entitled to substantial damages, and a verdict is given for the plaintiff, which cannot be impeached except on the ground that the damages are excessive, the court has power to refuse a new trial, on the plaintiff alone, and without the defendant, consenting to the damages being reduced to such an amount as the court would consider not excessive had they been given by the jury. (Belt v. Lawes, (C. A.) 12 Q. B. D. 356; 53 L. J. Q. B. 249; 32 W. R. 607; 50 L. T. 441.)

So, too, there is no inexorable rule of practice which precludes the court from granting a new trial on account of the smallness of damages. In Kelly v. Sherlock (L. R. 1 Q. B. 686, 697; 35 L. J. Q. B. 209; 12 Jur. N. S. 937), a rule nisi was granted on that ground, though it was discharged on the argument. There seems to be no case reported in which a rule for a new trial has been made absolute on this ground in an action of libel; but in an action of slander a new trial was granted, where the smallness of the amount recovered (4d.) showed that the jury had made an improper compro

mise, instead of deciding the issues submitted to them. (Falvey v. Stanford, L. R. 10 Q. B. 54; 44 L. J. Q. B. 7; 23 W. R. 162; 31 L. T. 677.) See, however, Forsdike and wife v. Stone (L. R. 3 C. P. 607; 37 L. J. C. P. 301; 16 W. R. 976; 18 L. T. 722), and Rendall v. Hayward (5 Bing. N. C. 424), which cases lay down the rule that where there has been no misconduct on the part of the jury, no error in the calculation of figures, and no mistake in law on the part of the judge, a new trial will not be granted. That the jury intended their verdict to carry costs, but have returned an amount insufficient in law to do so, never was a ground for granting a new trial. (Mears v. Griffin, 1 M. & Gr. 796; 2 Scott, N. R. 15; Kilmore v. Abdoolah, 27 L. J. Ex. 307; Forsdike and wife v. Stone, supra.)

There is no necessary inconsistency in a jury finding that a libel was written maliciously, and yet awarding only a farthing damages; and such a verdict will not be set aside. (Cooke v. Brogden & Co., 1 Times L. R. 497.)

If a new trial be moved for on the ground of surprise, the absence of a material witness at the trial, &c., there must be an affidavit setting out the facts. "Surprise is a matter extrinsic to the record and the judge's notes, and consequently can only be made to appear by affidavit; and here we have no affidavit of surprise, in the sense required by the practice of the court." (Per Maule, J., in Hoare v. Silverlock (No. 2), (1850), 9 C. B. 22.)

The judge's note is decisive as to the evidence taken in the court below; but either party may read a shorthand-writer's note, to supplement, though not to overrule, the judge's note. (Laming v. Gee, (C. A.) 28 W. R. 217.)

If a new trial be ordered, the costs of the first trial are in the discretion of the judge who tries the case the second time; if he makes no order, they follow the event. (Creen v. Wright, 2 C. P. D. 354; 46 L. J. C. P. 427; 25 W. R. 502; 36 L. T. 355; Field v. G. N. Ry. Co., 3 Ex. D. 261; 26 W. R. 817; 39 L. T. 80; Harris v. Petherick, (C. A.) 4 Q. B. D. 611; 48 L. J. Q. B. 521; 28 W. R. 11; 41 L. T. 146.)

County Court Proceedings.

No action of libel or slander can be commenced in the County Court (9 & 10 Vict. c. 95, s. 58), except by consent (19 & 20 Vict. c. 108, s. 23). Whether the word "slander" includes "slander of title" may be doubted. In cases of a trifling nature, it may be desirable that both parties should consent to such a course, especially

if all the witnesses reside in a town where a County Court is held. The parties or their respective solicitors must in that case sign a memorandum of consent, which must be filed; and thereupon a plaint will be entered and a summons issued, and all further proceedings will be taken as in an ordinary County Court case. (County Court Ord. V. r. 2.)

But an action of libel or slander, whatever the amount of damages. claimed, may be transferred to the County Court, under sect. 10 of the 30 & 31 Vict. c. 142, ante, p. 526. The defendant may apply to a master at chambers for an order under this section at any stage of the proceedings.

If an order for transfer is made, the plaintiff must lodge the writ and other proceedings, and the order remitting the action, with the registrar of the County Court. Until this is done, the action. remains in the Superior Court, which consequently has jurisdiction to vary the order. (Welply v. Buhl, (C. A.) 3 Q. B. D. 80, 253; 47 L. J. Q. B. 151; 26 W. R. 300; 38 L. T. 115.) If the plaintiff omit to lodge the order of transfer within a reasonable time after it is made, the defendant can apply at chambers for an order dismissing the action for want of prosecution. As soon as the necessary documents are filed, the action becomes a County Court cause, as completely as if it had been duly commenced therein. (Moody v. Steward, L. R. 6 Ex. 35; 40 L. J. Ex. 25; 19 W. R. 161; 23 L. T. 465.) The County Court judge is bound to assume jurisdiction; he cannot inquire into the circumstances under which the order was made. (Blades v. Lawrence, L. R. 9 Q. B. 374; 43 L. J. Q. B. 133 ; 22 W. R. 643; 30 L. T. 378.)

The plaintiff is required by County Court Order XXXIII. r. 1, to lodge with the registrar not only the writ and the order remitting the action, or a duplicate thereof, and a copy or copies of any affidavit or affidavits on which the order was made, but also a statement of the names and addresses of the several parties to the action, and their solicitors, if any, and a concise statement of the particulars of claim, such as would be required upon entering a plaint, signed by the plaintiff or his solicitor; and the registrar shall thereupon enter the action for trial, and give notice to the parties of the day appointed for such trial, by post or otherwise, ten clear days before such day, and shall annex to the notice to the defendant a copy of the particulars. For a form of such statement of the plaintiff's particulars, see Precedent No. 88, post, p. 670. For a form of the Notice of Trial sent to the defendant by the registrar, see Precedent No. 89, post, p. 671. The registrar shall forthwith indorse on the order or duplicate thereof the

date on which the same was lodged, and file the same, and the action shall proceed in all things as if it were an ordinary action in the County Court. (County Court Ord. XXXIII. r. 2.)

The defendant upon being served with such a notice of trial shall proceed in all things in the same way as if the action had been brought in the County Court, and the notice so served upon him was an ordinary summons. (County Court Ord. XXXIII. r. 3.)

Thus he may, five clear days at least before the day named in such notice of trial, pay money into court, either generally or under Lord Campbell's Act, paying a court fee of 1s. in the £ on the amount paid in. (County Court Ord. IX. rr. 11, 12, 13.) Or he may set up a counterclaim (County Court Ord. X. rr. 2, 11), or plead the Statute of Limitations (ib. r. 14), or any other special defence, by sending in to the registrar a concise statement of the grounds of such special defence five clear days at least before the day named for trial. (See Precedent, No. 90, post, p. 671.) If the defendant omit to send such statement, he will not be allowed to avail himself of the defence, unless the plaintiff consents thereto; but the judge will in a proper case adjourn the trial of the action to enable the defendant to give such notice. (County Court Ord. X. r. 10.) So, too, if the defendant intends to avail himself of the provisions of sects. 1 and 2 of 6 & 7 Vict. c. 96, he must give notice in writing of such intention, signed by himself or his solicitor, to the registrar five clear days before the day appointed for the trial of the action. (County Court Ord. XXXIII. r. 4.) Such notice should be in form No. 91, post, p. 672, if under sect. 1 of Lord Campbell's Act; in form No. 92, post, p. 672, if under sect. 2. And see County Court Ord. IX. r. 13, as to the necessary payment into court.

Where in any action for libel or slander the defendant relies as a defence upon the fact that the libel or slander is true, he shall in his statement set forth that the libel or slander complained of is true in substance. (County Court Ord. X. r. 16.) Such statement should be in form No. 90, post, p. 671. Where in any action of libel or slander the defendant does not rely as a defence upon the fact that the libel or slander is true, but relies in mitigation of damages on the circumstances under which the libel or slander was published, or the character of the plaintiff, he must in his statement give particulars of the matters relating thereto as to which he intends to give evidence. (Ib. r. 17.)

Interrogatories may be administered in the County Court by leave of the registrar. (County Court Ord. XVI. r. 1.) Any objection to answer must be taken in the affidavit in answer. Discovery and