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the general issue, not guilty, which under the new rule H. T. 4 W. 4. operates as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement, and no other defence than such denial is admissible under that plea: all other pleas in denial must take issue on some particular matter of fact alleged in the declaration. If the supposed libel amounts only to what is termed a privileged communication, this is a defence which may be set up under the plea of not guilty, notwithstanding the foregoing rule. The proper meaning of a privileged communication is this, that the occasion on which the communication was made, rebuts the inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact; that the defendant was actuated by motives of personal spite or ill will independent of the occasion on which the communication was madeb.

If the matter of the libel be true, the defendant may plead it in justification; but in such justification, if there be any thing specific in the subject, issuable facts ought to be stated, and not general charges of misconduct; for where a libel charged an attorney with gross negligence, falsehood, prevarication, and excessive bills of costs in the business which he had conducted for the defendant; it was holden, that a plea in justification repeating the same general charges, without specifying the particular acts of misconduct, was bad, upon demurrer; and that it was incumbent on the defendant, who must be taken to know the particular acts of misconduct, to disclose them. And if the plea professes to justify the whole libel, but in effect justifies a part only, it will be bad: as where the libel charged the defendant with having stolen cloth and velvet, and the plea justified the accusation only as to taking the velvet, it was holdend ill; so where the libel charged that plaintiff, a proctor, had been suspended three times, twice by Sir John Nicholl and once by Lord Stowell, whereby his neighbours had been led to think he was guilty of extortion; and the plea, professing to answer the whole, justified only one of the suspensions, viz. one by Sir John Nicholl, and omitted the other two specific charges, it was holdene bad. It is sufficient, however, if the charge on the plaintiff's conduct in the libel is substantially met and

a Lillie v. Price, 1 Nev. & P. 16.
b Per Parke, B. Wright v. Woodgate,
2 Cr. M. & R. 577; 1 Tyr. and Gr.
12. S. C.

c Holmes, gent. one, &c., v. Catesby, 1 Taunt. 543.

d Johns v. Gittings, Cro. Eliz. 239. e Clarkson v. Lawson, 6 Bingh. 266.

answered in the justification. It is unnecessary to repeat every word, which might have been the subject of the original comment. So much must be justified as meets the sting of the charge; but if any thing be contained in a charge which does not add to the sting of its, that need not be justified. It is not any bar to the action, that the plaintiff has been in the habit of libelling the defendanth; although it may operate in mitigation of the damages. It is not sufficient to plead that the defendant received the libellous statement from another, and that, upon publication, he disclosed the author's name1. Where the libel tended to make a man ridiculous, it was holden to be no defencek, that he himself told the same story to a party of friends.

Where the defendant pleaded a justification only without the general issue, he was formerly entitled to begin. But, according to Tindal, C. J., in Carter v. Jones, sittings after Trin. T. 3 W. 4. 1 Moody and Rob. 281, "a resolution has recently been come to by all the judges, that in cases of slander, libel, and other actions, where the plaintiff seeks to recover actual damages, of an unascertained amount, he is entitled to begin, although the affirmative of the issue may, in point of form, be with the defendant."

It seems, that where the allegations in a libel are divisible, one part may be justified separately from the rest, if a proper justification can be made out m. But where the declaration stated, that the defendant published a libel with intent to cause it to be believed, that the plaintiff had been guilty of feloniously stealing a horse; and the justification only stated, that the plaintiff was on certain grounds suspected of stealing it; it was holden", on demurrer, to be insufficient.

To this action the defendant may plead the statute of limitations, that is, "that the cause of action did not accrue at any time within six years next before the commencement of the plaintiff's action."

f Edwards v. Bell, 1 Bingh. 403.
g Ib.

h Finnerty v. Tipper, 2 Campb. 76.
i De Crespigny v. Wellesley, 5 Bingh.
392.

k Cook v. Ward, 6 Bingh. 409.

1 Cooper v. Wakley, Moody & M. 248. Tenterden, C. J. Scarth v.

Gardiner, R. R. Middlesex Sittings after M. T. 2 W. 4. Tenterden, C. J. MSS. S. P.

m See opinion of Tenterden, C. J. in following case.

n Mountney v. Watton, 2 B. and Ad. 673.

o 21 Jac. c. 16.

III. Of the Evidence.

THE libel must be produced, and before it is read, it must be proved that is was published by the defendant. The mode of publication may be proved in order to enhance the damages. The mere parting with a libel, with such an intent, whereby a defendant loses all power of future control over it, is an uttering, which seems to be the meaning of the word publishing, without an actual communication of the contents of the paper. If it be proved, that the libel was bought in the shop of a bookseller, of a person acting in the shop as the servant of the bookseller, this will be prima facie evidence of a publication by the bookseller, inasmuch as he has the profits of the shop, and is therefore answerable for the consequences. Where a publication is defamatory, the law infers malice', unless any thing can be drawn from the circumstances attending the publication to rebut that inference. If the libel be in a foreign language, in which case, as it has already been observed, the libel must be set forth in the declaration, both in the original language and in the English translation, further proof will be necessary (7).

Where a libellous paragraph, as proved, contained two references, by which it appeared to be in fact the language of a third person speaking of the plaintiff's conduct, and the declaration in setting it out had omitted those references: it was holdens that these omissions altered the sense of the remainder, and the variance was fatal. In an action for a libelt, after

p R. v. Burdett, 4 B. & A. 135.

q R. v. Almon, 5 Burr. 2686.

r Per Le Blanc, J. in R. v. Creevey, 1 M. & S. 273.

s Cartwright v. Wright, 5 B. & A. 615. t Lee v. Huson, Peake's N. P. C. 166.

(7) In the case of the R. v. Peltier, which was an information against defendant for a libel on Napoleon Bonaparte, the evidence on the part of the prosecution was as follows: A witness proved, that he had purchased several copies of the book, containing the libel in question, of a certain bookseller, which copies he had marked at the time. 2. The bookseller proved that defendant was the publisher of the book, and employed him to dispose of the copies on his account, and that he had accounted for them. 3. An interpreter was then called, who swore that he understood the French language, and that the translation was correct. The interpreter then read the whole of that which was charged to be a libel in the original, and then the translation was read by the clerk at Nisi Prius.

the libel, on which the action was brought, had been read, the plaintiff's counsel offered in evidence other libels written by the defendant. This having been objected to, on the ground that the plaintiff could not give in evidence any thing which would of itself constitute a ground for a distinct action; Lord Kenyon, C. J. said, he thought that the evidence was admissible, and compared it to actions for slander, in which, evidence of other words, besides those stated in the declaration, was usually received [to shew the malice of the defendant (8).]

In an action on the case for publishing a libel against the defendant in a paper entitled the Weekly Political Register", a witness was called, who proved that he had purchased one of the papers containing the libel in question before the action was brought; he was then proceeding to prove that he had purchased another copy of the same paper after the action was brought. This was objected to, on the part of the defendant, on the ground that the publication of the last-mentioned copy might become the subject of a future action, and, therefore, that it ought not to be given in evidence to increase u Plunkett v. Cobbett, before Ld. Ellenborough, Middlesex Sittings, 26th MSS.

May, 1804.

(8) Charlter v. Barret, Peake's N. P. C. 22. So in Rustel v. Macquister, Middlesex Sittings after H. T. 1807. 1 Campb. 49. n. the plaintiff, having proved the words laid in the declaration, offered evidence of other actionable words spoken by the defendant afterwards; this being objected to on the ground that these latter words might become the subject of a future action, Ld. Ellenborough overruled the objection, observing that evidence might be given of any words as well as any act of the defendant to shew quo animo he spoke the words which were the subject of the action. Still, however, it would be the duty of the judge to tell the jury, that they must give damages for those words only, which were the subject of the action. So per Sir J. Mansfield, in Finnerty v. Tipper, 2 Campb. 76. "In actions for words, it has been allowed to give evidence of words subsequently spoken, for the purpose of shewing that the original words were spoken maliciously and to injure :" but see Mead v. Daubigny, Peake's N. P. C. 125., where in an action for slander, Lord Kenyon, C. J. confined this doctrine to words not actionable in themselves; admitting, however, that such words might be given in evidence, although it appeared they were not spoken to the same person, to whom the slander was alleged in the declaration to have been spoken. N. This distinction was exploded by Lord Ellenborough in the preceding case of Rustel v. Macquister, who observed that it was not founded upon any principle.

the damages in this action. But Lord Ellenborough, C. J. was of opinion, that although it was not admissible for the purpose of aggravating the damages, yet it was evidence to shew that the paper was circulated deliberately. But in Finnerty v. Tipper, Sir J. Mansfield ruled, that the plaintiff could not give in evidence other subsequent libels published concerning him by the defendant, unless they directly referred to the libel set forth in the declaration. And in Stuart v. Lovell, 2 Stark. 93. Lord Ellenborough, C. J. held that the plaintiff could not give in evidence subsequent publications by the defendant, where the intention of the publication in question was not equivocal.

Under the plea of not guilty, the plaintiff cannot adduce evidence to shew that the allegations in the libel are false. But in an action for a libel purporting to be a report of a coroner's inquest, evidence of the correctness of the report is admissible under the general issue in mitigation of damages2; but evidence of the truth or falsehood of the facts stated at the inquest is not admissible on either side.

Where a libel contains matters imputing to another a crime capable of being tried, evidence cannot be received at the trial of the truth of those imputations. Where, therefore,

the libel contained imputations that certain persons at M. had been guilty of murder, the court held, that the judge, at the trial, properly refused evidence of the truth of the transactions stated in the libel to have taken place at M.

General evidence, that the plaintiff has been in the habit of libelling the defendant is inadmissible. The defendant cannot be allowed to do more than prove the publication, by the plaintiff, of libels which are connected with the libel which is the subject of the action; and clearly applicable to the defendant's libel.

It is not competent to a defendant charged with having published a libel, to prove that a paper similar to that for the publication of which he is prosecuted, was published on a former occasion by other persons, who have never been prosecuted for ite. Proof that the libel was contained in a let

x 2 Campb. 72. confirmed in Wakley v. Johnson, Ry. and M. 422. See also May v. Brown, 3 B. and C. 113. and Tarpley v. Blabey, 2 Bingh. N. C. 437.

y Stuart v. Lovell, 2 Stark. 93.

z East v. Chapman, 1 M. & Malk. 46. Tenterden, C. J.

a R. v. Burdett, 4 B. & A. 145.

b Wakley v. Johnson, R. and M. 422. Best, C. J.

c 2 Stark. on Libel, p. 100, cites May v. Brown, 3 B. & C. 113.

d Tarpley v. Blabey, 2 Bingh. N. C.

437.

e R. v. Holt, 5 T. R. 436.

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