SECTION XI. THE PLEADINGS. THIS being an action on the case, the general issue is "not guilty," which by Reg. Gen. H. T. 4 W. IV. “ shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant;" and "in an action of slander of the plaintiff, in his office, profession, or trade, the plea of not guilty will operate to the same extent precisely as at present, in denial of speaking the words, of speaking them maliciously and in the sense imputed, and with reference to the plaintiff's office or trade." a under the general The only effect of the new rules, in respect of the pleading in Evidence this action, appears to be, that the matter stated in the inducement, unless specially denied, will be considered as admitted issue. under the general issue b; and that a release and accord and satisfaction, which formerly might have been given in evidence under this plea, must now be specially pleaded d. With these exceptions the plea of not guilty puts in issue the same facts, and the same evidence is admissible under it, as formerly. The plaintiff, therefore, must under this plea prove all the facts alleged in his declaration which are essential to his right to recover, and the defendant may give evidence to disprove any thing essential to the plaintiff's case; he may shew that the alleged slander or libel was not spoken or published in the malicious sense imputed by the declaration, but in an innocent sense, or that it was spoken or published on an occasion which rebutted the inference of malice; as that it was a privileged communication, &c. e; that the alleged libel was published by order of the House of Commons. It seems, indeed, that with Justification of truth. Justifica the exceptions above stated, the defendant may under the general issue, give any matter in evidence which is in law an answer to the action, except the truth of the imputation, which must be specially pleaded. The plea of justification, on the ground of the truth of the slander or libel, must in general confess the imputation as laid in the declaration, otherwise it will be bad on demurrera; and it should be framed with the same degree of certainty and precision as are requisite in an indictment or information". If the imputation against the plaintiff be general, the plea of justification must state specific facts, shewing particular instances of misconduct on the part of the plaintiff, of the same nature as the slander laid in the declaration; a plea in the words of the libel will be bad on demurrer; thus, a justification of a charge of a person being a swindler, must state the particular instances by which the defendant means to support it. Where a libel charged an attorney with general misconduct, viz., gross negligence, falsehood, prevarication, and excessive bills of costs, in the business he had conducted for the defendant; a plea in justification, repeating the same general charges, without specifying the particular acts of misconduct, was held insufficient upon demurrer d A plea of justification to an action for charging the plaintiff, as a justice of the peace," with pocketing fines of prisoners whom he had convicted," should state the names of the parties convicted, and of whom the plaintiff had received the fines . It is no objection to the plea that it does not justify the whole tion of part. charge; if the charge be divisible, a justification of part will be good pro tanto. As where the imputation was, that the plaintiff (a proctor) "had been suspended three times per quod his neighbours were led to think he had been guilty of extortion;" plea, that he had been suspended once for extor tion; held, that the libellous matter was divisible, and that the plea was an answer to a part a. A substantial justification is If the imputation be substantially justified, it is sufficient b. A plea, stating that the libellous matter complained of, "is true in substance and effect," means, that it is true in every material sufficient. particular, and if the defendant does not prove such statement to be true, the plea is not proved, although he prove facts of the same description . But if the declaration alleges a charge of felony, a plea confessing the charge and justifying only by stating circumstances of suspicion, is not sufficient d. Where in an action for libelling the plaintiffs in their business of selling medicines, by publishing that the defendants "had crushed the Hygeist system of wholesale poisoning pursued by the scamps and rascals, and that several of the rotgut rascals had been convicted of manslaughter; and fined and imprisoned for killing people with enormous doses of their universal boluses;" the defendants justified "that the pills were composed of aloes and gamboge of a dangerous poisonous nature, and that two of the Hygeists had been convicted of manslaughter for administering the pills;" held, after verdict, that the plea was sufficient, though it did not justify the words scamps and rascals, and though it appeared that one of the patients who had died had not taken the quantity of pills which the Hygeist had ordered, it appearing that a greater number would only have accelerated his death. The court considered that the substantial imputation contained in the libel was justified by the plea, and that it was not necessary to justify terms of general abuse ". If the defendant intends to avail himself of the statute of limitations, he must plead it specially f admissible There are many matters of defence which, though admissible Defences in evidence under the general issue, may also be specially pleaded. Whenever the occasion of the speaking or publishing under the general is sue may be spe a Clarkson v. Lawson, 6 Bing. 587. But such plea to the whole declaration would be ill on demurrer. Id. 266. See Mountney v. Watton, 2 B. & Ad. 678, infra. b Edwards v. Bell, 1 Bing. 403. 1 Stark. Sl. 403. 230. Weaver v. Lloyd, 4 D. & R. d Mountney v. Watton, 2 B. & e Morrison v. Harmer, 3 Bing. N. C. 759. 3 Hodges, 112. f See ante, 1244. cially plead ed. A plea of privileged communi cation must deny malice. furnishes a defence to the action, it seems it may be specially pleaded. As if the defence be that the alleged libel was a report of proceedings in a court of justice; the defendant may plead that fact specially. It has, indeed, been doubted whether such defence may be available under the general issue a. But, as a privileged communication may be given in evidence under a plea of not guilty b, there appears no solid reason why this defence should not also be admissible under that plea; it is usual, however, and the safer course to plead it specially. The plea, to be available, must state that the publication is a true, accurate, and full report of proceedings in a court of justice. A plea that it is in substance a true report, is bad d. A plea of justification on the ground that the imputation was a privileged communication, must expressly deny malice, or state that the communication was made honestly and bouá fide, which might imply the absence of malice; and if the publication be actionable of itself, a plea merely denying that the plaintiff has sustained any special damage is bad, though special damage be alleged in the declaration'. It is no answer to an action for oral slander, that the defendant heard the words from another, and that he named him at the time; he must also allege that he believed the words to be true, and that he spoke them on a justifiable occasion 8. The plaintiff cannot object at the trial, that the plea of justification is insufficient, as he should have demurred. The defendant is, therefore, entitled to verdict if the plea be proved h. Where there is a plea of not guilty and justifications, and the jury find for the defendant on the former, they should be discharged from finding on the special pleas . Curry v. Walter, 1 B. & P. b See ante, 1389. Per Tindal, C. J., in Delegal v. Highley, 3 Bing. N. C. 963. Saunders v. Mills, 6 Bing. 213. d Flint . Pike, 4 B. & C. 473. See ante, 1373, as to what reports of judicial proceedings are justifiable. Smith v. Thomas, 2 Bing. N. C. 372. 1 Hodges, 353. f Id. 8 M'Pherson v. Dániels, 10 B. & C. 263, ante, 1376. h Edmonds v. Walter, 3 Stark. 7. 2 Chitt. 291. i Robertson v. M'Dougall, 4 Bing. 670. 1.- Evidence for the plaintiff.] If the publication of the Islander be not admitted by the pleadings, the plaintiff must give evidence of it. If the action be for words, proof of their having been spoken in the presence of a third person is sufficient. The words, we have seen, must in general be proved as laid b. If the action be for written slander, proof of the libel produced being in the handwriting of the defendant is primá facie evidence of it being published by him c. If the words have been spoken or the libel addressed to the plaintiff only, without any further publication, the action cannot be sustained, though such publication might be the subject of an indictment, on the ground of its tendency to produce a breach of the peace 4. tion. In an action for a libel contained in a letter, written by the de- Proof of fendant to the plaintiff; proof, that the defendant knew that letters publicasent to the plaintiff were usually opened by his clerk, is evidence to go to a jury of the defendant's intention that the letter should be read by a third person, which would amount to a publication e. But sending a letter to a third person is proof of publication. Where a letter containing the libel, in the handwriting of the defendant, was addressed to a party in Scotland, and was proved to have been put into the post office, and to have been forwarded to Scotland, and to have the proper post marks on it, and was produced with the seal broken; it was held sufficient evidence of it having reached the party to whom it was addressed, and consequently of a publication f. A publication by an agent is a publication by the principal; thus, the sale of a libel in the defendant's shop, by his servant, is prima facie evidence of a |