her, she would be allowed to refuse to answer if the answer might tend to criminate her. PART IV. CHAPTER XIII. Proof of publi several defen Where there are several defendants to the action, to secure a verdict against all it will not be sufficient to prove cation where that they have all published the libel, but it must be shown dants. that they have been guilty of a joint publication; and if one of them has let judgment go by default, it will still be necessary to show a publication by him with the others. (a) It is not often, however, that a difficulty can arise as to this, in the cases with which alone this work is concerned, viz., literary libels; because the author and the publisher are responsible for every publication which is made of the work issued by them. The point would arise if two retail booksellers were joined as defendants, as each is only guilty of publishing the copies sold by him. to State officer or department. Where the libel is contained in a communication to a Libel addressed State officer or department, the judge must decide first whether it is privileged from being produced on grounds of public policy; and if he decides that it is, then no evidence can be given of its contents. In the case of Anderson v. Hamilton (b) Lord Ellenborough observed: "It is said that the fact that there has been a complaint made against the defendant by the plaintiff to Lord Liverpool, is the only fact sought to be put in evidence on this occasion; but it is not competent for the defendant to get at that fact, if it be embodied in an official letter. Neither can an extract of such a letter be admitted, for the plaintiff must be entitled to the whole or none." libel. After sufficient evidence has been given to connect the Putting in the defendant with the publication, the libel must be put in and read by the officer of the court. any variance. Should there appear to be variance in the libel read Amendment of from the matter charged in the declaration, the court or the judge has ample power to amend the record, as in his discretion he may think most conducive to the ends of justice. (c) Where the declaration merely set out the effect of a libellous letter, Wightman, J., allowed it to be amended by setting out the letter verbatim, with the words "meaning thereby immediately before the libel charged in the declaration, and offered to postpone the trial to enable the defendant to justify the amended declaration; but the defendant declined. (a) Johnson v. Hudson (7 Ad. & E. 233). (b) 2 B. & B. 157, n.; cited by Lord Chelmsford in Stace v. Griffith (L. Rep. 2 P. C. 428; S. C., 6 Moore, P. C. C. N. S. 18; 20 L. T. N. S. 197). (c) 9 Geo. 4, c. 15; 3 & 4 Will. 4, c. 42; 15 & 16 Vict. c. 76, s. 222; 17 & 18 Vict. c. 125, s. 96; 23 & 24 Vict. c. 126, s. 36. P P PART IV. CHAPTER XIII. Introductory everments. Proof of innuendoes. to avail himself of the offer, and the jury found a verdict for the plaintiff. On a motion for a new trial, the Court of Exchequer held that the amendment was properly made. (a) Where the declaration stated that the defendant published a libel "contained in, and being an article, in a certain ( weekly publication or paper called the Paul Pry," and at the trial the publication proved was that the defendant had given a printed slip of paper, appearing to have been cut from the Paul Pry, to several persons to read, the declaration was amended by striking out the words quoted above.(b) As introductory a verments are nolonger necessary, it is apprehended that, if inserted, they may be treated as surplusage, and need not be proved. To prove that the words have the meaning which is attached to them by the innuendoes, and that they refer to the plaintiff, it often becomes necessary to call witnesses who are acquainted with the circumstances out of which the libel arose, and who are therefore capable of saying to whom it applies, and what meaning it bears when read by the light of surrounding circumstances. (c) For the purpose of identifying the plaintiff with the subject of the libel, evidence of his having been laughed at at a public meeting is admissible.(d) But where a meaning is sought to be put upon words which differs from their ordinary construction, a foundation must be laid for it by showing that something occurred which gave them a special meaning, and then the witnesses may be asked, with reference to those occurrences, what was the sense in which they understood the words. (e) It is not necessary to give evidence of the meaning of words which are in common use, although they may not have existed long enough to be found in the last edition of the English dictionary; (f) nor is it necessary to explain by evidence ordinary historical, figurative, or parabolical terms and allusions.(g) It is the duty of the judge to say whether the publication is capable of the meaning ascribed to it by the innuendo; (a) Saunders v. Bate (1 H. & N. 402). Cook v. Ward (4 M. & P. 99; 6 Bing. 412); and see Du Bost v. (e) See Daines v. Hartley (3 Ex. 200); Broome v. Gosden (1 C. B. 728): Barnett v. Allen (3 H. & N. 376; 27 L. J. 412, Ex.); Brunswick (Duke of) v. Harmer (3 C. & K. 10). (f) Homer v. Taunton (5 H. & N. 661). but when the judge is satisfied of that, it must be left to the PART IV. jury to say whether the publication has the meaning so CHAPTER XIII. ascribed to it. (a) malice to rebut privilege. When the inference of malice is rebutted by the occasion Evidence of of the publication, it will be necessary for the plaintiff, in order to avoid a nonsuit, either to show that the libel contains intrinsic evidence of malice, or to give extrinsic proof of it. It is a matter of law to be decided by the judge whether the legal presumption of malice is rebutted; but when there is any evidence of malice the matter must be left to the jury to determine. (b) The language of the libel is sometimes evidence of express malice; e.g., if, in a report of facts, the writer goes out of his way to impute motives which are not a necessary inference from the facts; (c) and therefore the libel itself should be submitted to the jury, so that they may judge from it, as well as from the extrinsic circumstances, whether it is malicious.(d) Proof that the libel is false in a part of the statement, is evidence for the jury to renew the presumption of malice which has been rebutted by the occasion of the publication. (e) Evidence that the plaintiff and defendant lived on bad terms is evidence from which the jury may infer malice, and this, whether the provocation was given by the defendant or the plaintiff.(f) Acts done by the defendant subsequently to the publication of the libel may indicate the existence of motives at a former period; and therefore where the plaintiff expressed in court his willingness to accept an apology and nominal damages, if the defendant would withdraw his plea of justification, and the defendant refused to do so, but offered no evidence in support of it, it was held that the judge was right in leaving this to the jury as evidence of express malice; (g) but such evidence would not be admissible upon the issue as to whether the communication was privileged. (h) Blagg v. Sturt (10 Q. B. 899. See p. 908). 8 Cooke v. Wildes ( R. & B. 328), Somerville v. Hawkins (10 C. B. 583); Taylor v. Hawkins (16 Q. B. 308); Stace v. Griffith (L. Rep. 2 P. C. 429; 20 L. T. N. S. 197; 6 Moore P. C. C. N. S. 18). (c) Cooke v. Wildes (5 E. & B. 332); Gilpin v. Fowler (9 Ex. 615; 23 L. J. 152, Ex.); Tuson v. Evans (12 A. & E. 733); Wright v. Woodgate (2 C. M. & R. 573). (d) Gilpin v. Fowler (ubi supra); Fryer v. Kinnersley (15 C. B. N. S. 422; 33 L. J. 96, C. P.; 9 L. T. N. S. 415; 12 W. R. 155). (e) Blagg v. Sturt (10 Q. B. 899). 431. Simpson v. Robinson (12 Q. B. 511). See also 15 C. B. N. S. (g) Ib. (h) Wilson v. Robinson (7 Q. B. 68). PART IV. But where the action is brought against the bookseller or CHAPTER XIII trade publisher, evidence of the personal malice of the writer of the libel is not admissible. (a) By letters from defendant to plaintiff. By evidence of other defama or statements of defendant. Letters of the defendant, addressed to the plaintiff about the same period as the publication of the libel, may be given in evidence to show quo animo the libel was published; (b) and anonymous letters have been admitted for this purpose. (c) At one time it was a moot question whether other libels tory publications or actionable slanders could be received in evidence to prove There were numerous nisi prius cases express malice. which supported the affirmative and negative of the proposition. These will be found reviewed by the Court of Common Pleas in the case of Pearson v. Le Maitre,(d where that court decided that, even in cases where there was no pretence for saying that the publication was privileged, the plaintiff might show the spirit and intention of the party publishing a libel, although the evidence tending to prove it disclosed another and different cause of action. And in the › case of Barrett v. Long (e) it was held by the House of Lords that where the defendant pleaded the general issue, and also a plea under the statute 6 & 7 Vict. c. 96, denying actual malice, and stating the publication of an apology set forth in the plea, the plaintiff might give in evidence other publications by the defendant-some of them more than six years before the publication complained of-of and concern ing the plaintiff, in order to prove malice on the part of the defendant. Parke, B., in delivering the opinion of the judges upon this question, in the case last referred to, said: "We are all of opinion that, under such a plea, the publication of pre vious libels on the plaintiff by the defendant, is admissible evidence to show that the defendant wrote the libel in question with actual malice against the plaintiff. A long practice of libelling the plaintiff may show in the most satisfactory manner, that the defendant was actuated by malice in the particular publication, and that it did not take place through carelessness or inadvertence; and the more the evidence approaches to the proof of a systematic practice, the more convincing it is. The circumstance that the other libels are more or less frequent, or more or less remote from the time of the publication of that in question, merely affects the weight, not the admissibility, of the evidence." " (f) (a) Robertson v. Wylde (2 M. & Rob. 101). (c) Hughes v. Lady Dinorben (32 L. T. 271). (e) 3 H. L. C. p. 395. See p. 413. (f) Id. p. 414. PART IV. Where evidence is given of statements made by the defendant a long time after the publication of the libel charged in CHAPTER XIIL the declaration, the judge should point out to the jury distinctly the interval between the libel and the subsequent statements, and suggest to them to take into their consideration the possibility that such statements might refer to something which happened after the libel, so as not to show malice at the time of the publication. (a) It has sometimes been sought to prove express malice by By reference to reference to the defendant's pleas. In the case of Wilson v. Robinson (b) the Court of Queen's Bench held that the fact that the defendant had pleaded a justification of the libel, which he abandoned at the trial, was no evidence of malice, for the purpose of depriving him of the protection which he derived from the libel being a privileged communication, and that, at the utmost, the plea could only have been urged in aggravation of damages, if the jury had found that the libel was not a private communication in the course of business. In the case of Simpson v. Robinson, (c) the plaintiff expressed in court his willingness to accept an apology and nominal damages, the defendant not persisting in a justification of the truth which he had pleaded. The defendant refused this offer; and, though he gave no evidence in support of the justification, he did not withdraw the charge. Erle, J., told the jury that they might consider the whole of the defendant's conduct, with reference to the question of malice, and that acts, although subsequent, might indicate the existence of motives at a former time; and, with reference to the question of damages, he remarked that the jury should consider the nature of the imputation, how it had been made, and how it had been persisted in down to the time of the verdict, and they should calmly consider what damages would reinstate the plaintiff's character; and the Court of Queen's Bench upheld this direction. Lord Denman, C.J., in delivering the judgment of the court, said: "The defendant's conduct in putting a justification on the record which he does not attempt to prove, and will not abandon, may be taken into consideration as proving malice and aggravating the injury. And, if the defendant's conduct in that respect may at all affect the verdict, every other part of his conduct shewing the same disposition may equally be laid before the jury refusing to make reparation for unjustifiable slander may have that effect; and the malice (a) Hemmings v. Gasson (El. Bl. & El. 346; 27 L. J. 252, Q. B.). (b) 7 Q. B. 68. (e) 12 Q. B. 511. defendant's pleas. |