declaration; and, in the present case, the plea denies the whole charge. This is distinguishable from the case cited; for there was a specific charge that the plaintiff had taken certain fines which belonged to the king, and the justification was general. But here the point in issue was the whole life and character of the plaintiff; therefore it would have been to na purpose for the defendant to have specified any one particular instance, because that would not have been sufficient to prove the charge in the declaration. And if the defendant had set forth many instances, he probably might have failed in the proof of one, and thenhis * justification could not be supported. And besides, [*751] if it were necessary to specify all the charges, it would

be making the record itself a libel. Pleas of justification need not be drawn with more precision and certainty than indictments: And there are several instances where a general charge of this kind is sufficient even in an indictment, such as charges of barratry; or keeping a common bawdy-house. 1 Hawk. P. C., 2 Hawk. P. C. c. 25, s. 59. In 2 Atk. 339, it is said, that in the case of an indictment for keeping a common bawdy-house, without charging any particular fact, though the charge be general, yet at the trial the prosecutor may give in evidence particular facts and the particular time of doing them; the same rule as to keeping a common gaming-house. So a general charge for keeping a disorderly house was held sufficient. 2 Burr. 1232. In the present case, the being a swindler consists in divers acts; and therefore it was sufficient for the defendant to plead the charge generally, and give the particular facts in evidence But if it be not now too late to take any exception to the declaration, that appears to be informal and insufficient. It charges the defendant with having called the plaintiff a common informer and swindler: Now the former is not actionable, and the latter is not a legal term of which the law can take notice. It is true, indeed, that they are explained by innuendoes to mean defrauding and plundering; but the terms themselves are. not capable of that explanation; therefore the defendant has a right to throw out the innuendoes, and consider the charge itself. And if the matter be not actionable, the manner is not material. Astley v. Young, 2 Burr. 811. Besides, the libel is not sufficiently descriptive of the person of the plaintiff.

Wood in reply. The true nature of a plea is to disclose to the plaintiff the particular facts, which are meant to be given in evi

No. 9. J'Anson v. Stuart, 1 T. R. 751, 752.

*

dence against him; but this plea is so general that the plaintiff cannot be prepared to answer it. As to the charge in the declaration being too general, it is to be observed that it is the charge of the defendant. And if it were not actionable on account of its generality, any person. might calumniate another with impunity by generally scandalising his character. This has been compared to an indictment for keeping a common bawdy-house, where it is said that a general allegation is sufficient: but even there the house itself must be specified; the time and the acts done are only the evidence of keeping an improper house. Suppose the plain752] tiff had been indicted for swindling, it would not have been sufficient to state, as this plea does, that he had been guilty of defrauding divers persons; but the indictment must have stated whom he had defrauded, and the time when. So an indictment generally for felony is not sufficient; it must allege the particular species of felony. Therefore on the defendant's argument this plea cannot be supported. Then as to the declaration not being sufficient: It is actionable to charge any person with that which may be the subject of an indictment. And there is no doubt, but that if the charge against the plaintiff were true, he might have been indicted for it. And even though certain words, which scandalise the character of another, be not actionable in themselves, yet if they be reduced to writing, they become the subject of a libel. Austin v. Culpepper, 2 Show. 313. And the innuendoes are explanations in fact, which are admitted on this record.

ASHHURST, J. This plea is bad on account of its generality. The substance of the libel is that the plaintiff was a common swindler, and that he, in concert with others, defrauded divers persons. One part of the defendant's argument has been that this plea is only as general as the charge in the declaration. But it is to be observed, that it was the charge of the defendant, and the plaintiff was bound to state it as it was made. And it does not follow, that the defendant ought to justify in so general a way. The defendant is prima facie to be considered as a wrongdoer. When he took upon himself to justify generally the charge of swindling, he must be prepared with the facts which constitute the charge in order to maintain his plea: Then he ought to state those facts specifically, to give the plaintiff an opportunity of denying them; for the plaintiff cannot come to the trial prepared to

No. 9. J'Anson v. Stuart, 1 T. R. 752, 753.

justify his whole life. If the plaintiff had been a common swindler, the defendant ought to have indicted him; but he has no right to libel him in this way. And if the defendant has acted wrong in libelling the plaintiff, he has brought this difficulty upon himself: But where a man stands forth as a public prosecutor, he is entitled to the protection of the public. In some few cases, a general charge in an indictment may be sufficient; but those of barratry and keeping a disorderly house are almost the only instances. The latter case may be supported without mentioning the name of any individual who frequents the house, because it may be notorious to the neighbours that disorderly persons do go there, without their being enabled to specify any particular person. But where a charge of this kind is preferred, [* 753] it must be more particular in order to apprise the other party of it. Now here if the defendant can support his charge that the plaintiff has defrauded divers persons, it must be known to him whom he has defrauded, and he must call them as witnesses to prove the particular acts of fraud: If he cannot substantiate his charge, he ought not to have made it.

BULLER, J. It seems to me that the argument of the defendant's counsel blows hot and cold at the same time. For, first, it is said that the term "Swindler" imports a variety of acts of fraud, and therefore, that they could not be stated in the plea, because it would be multifarious. But the objection afterwards taken to the declaration is that the term "Swindler" is too general, and cannot be legally understood. But Mr. Justice ASTON formerly held otherwise, for he said that the word "Swindler" was in general. use, and that the Court could not say, they were ignorant of it. But at all events, we cannot say on this record that we do not understand the import of it, for it is explained to be "defrauding divers persons." The first question then here is, Whether the defendant is at liberty to charge the plaintiff with swindling, without showing any instances of it? That is contrary to every rule of pleading; for wherever one person charges another with fraud, he must know the particular instances on which his charge is founded, and therefore ought to disclose them. The rule in pleading is this, that wherever a subject comprehends multiplicity of matters, to avoid prolixity, generality of pleading is allowed; as a bond to return all writs, &c. But if there be any thing specific in the subject, though consisting of a number of acts, they

must be all enumerated; as on a covenant "to infeoff of all his lands," the covenantor in showing performance must state them all; so if a person be bound "to pay all the legacies in the will," he must specify them all, and aver payment of each; and the reason is, because all these facts lie within the knowledge of the party, Cro. El. 749. Now in the present case, if this plea were to be suffered, it would be to allow any person to libel another more on the records of the Court than he could do in a public newspaper. If the plaintiff has been guilty of any acts of swindling, the defendant must be taken to know them. He could not prove the justification, as he has pleaded it, by general evidence; but he has no justification, unless he can prove the special instances; and, knowing them, he ought to put them on the record that

the plaintiff might be prepared to answer them. It has [* 754] * been said, that this case is different from that of Newman v. Bailey, because that was a specific charge. But that is not so; for there the plaintiff was charged with pocketing all the fines, &c., which was as general as possible. And there the Court said it was necessary to specify the particular acts. The cases of indictments, which were cited, do not apply here. As to that of barratry, it has always been stated as an exception to the general rule: I have not been able to discover how that exception was first established; but it is of ancient date. But in that case something more is required than is stated in the present case; for though the indictment is good in a general form, yet it has always been held that the prosecutor must give the defendant notice before the trial of the particular instances that are meant to be proved, so that even there the inconvenience of allowing a general charge is guarded against. With respect to the case of an indictment for keeping a common bawdy-house; there more certainty in the indictment is required than is stated here; for it must state the place where the house is situate and the time; the crime therefore is particularly stated in that case, for the offence is the keeping of the house: And it is not necessary to prove who frequents the house, for that may be impossible; but if any unknown persons are proved to be there behaving disorderly, it is sufficient to support the indictment. So in the case of a common scold, it is not necessary to prove the particular expressions used; it is sufficient to prove generally that she is always scolding. Therefore in all these instances, the party is sufficiently apprised

No. 10. Zierenberg v. Labouchere, 1893, 2 Q. B. 183.

of the nature of the charge which is intended to be proved against him. It is not true, as was contended, that the general character of the plaintiff is put in issue; for the evidence to support the defendant's plea must be special. Where it is permitted to the party to give general evidence of character, as in the case of a prisoner, he cannot enter into particular instances; but where, as in the present case, the whole defence arises from the proof of particular facts, the general character is not in issue. Then as to the declaration itself, it contains as libellous a charge as can well be imagined.

GROSE, J., declined giving any opinion, as he had argued this case at the bar in the Court of Common Pleas.

Judgment reversed.

Zierenberg v. Labouchere.

1893, 2 Q. B. 183-191 (s. c. 63 L. J. Q. B. 89; 69 L. T. 183; 41 W. R. 675).

Libel. Justification. — Particulars.

In an action of libel, where the charge made against the plaintiff in the [183] alleged libel is general in its nature, a defendant who pleads a justification must state in his particulars the facts on which he relies in support of his justification.

Appeal from a judgment of the Divisional Court, affirming an order of a Judge at chambers for further and better particulars.

The action was brought in respect of an alleged libel published in a newspaper of which the defendant was proprietor. The general effect of the alleged libel was to bring a charge against the plaintiffs, who were husband and wife, that, under pretence of carrying on a home for inebriates, they obtained money from charitable persons to be devoted to that purpose, and retained it for their own use. The article averred that the plaintiffs were charity swindlers" and "impostors," and that the home was " a monstrous swindle." There were other allegations reflecting on the conduct and character of the plaintiffs to which it is not necessary further to refer, as the sufficiency of the particulars as to these matters was not in question. The defendant pleaded a justification in general terms that the statements complained of were true. An order was thereupon obtained for the delivery of particulars covering all the statements of the alleged libel, and among other things requiring particulars" of how and in what way the