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The plaintiff may also bring evidence in aggravation, the defendant in mitigation, of damages. (See ante, pp. 365, 368.) And defendant's counsel must consider the advisability of giving a notice under Order XXXVI. r. 37, post, p. 646. As to the effect and meaning of this rule, see ante, p. 376. For the form of such a notice, see Precedent No. 63, post, p. 735.

Having thus determined what facts his client has to prove at the trial, counsel should proceed to state how each is to be proved. In the first place, what witnesses must be called. It may be necessary to apply to postpone the trial in order to secure the attendance of witnesses who are ill or absent abroad (Turner v. Meryweather, 7 C. B. 251 ; 18 L. J. C. P. 155; Brown v. Murray, 4 D. & R. 830; M'Cauley v. Thorpe, 1 Chit. 685; 5 Madd. 19); or on other grounds. (See Parnell v. Walter and another, (1889) 5 Times L. R. 577.) In other cases it may be necessary to apply for letters of request or a commission. abroad, or for the examination before trial of a witness who is dangerously ill or about to leave the country. (Order XXXVII. r. 5; Procter v. Tyler, (1887) 3 Times L. R. 282; Ross v. Woodford, (1894) 1 Ch. 38; 63 L. J. Ch. 191; 42 W. R. 188; 70 L. T. 22; see post, p. 621.) In some cases the necessity of calling evidence to prove a particular fact may be obviated by giving a Notice to Admit Facts under Order XXXII. r. 4.

Counsel must next consider what documents will be required to prove his client's case, and also what documents will be needed for the cross-examination of the witnesses called by the other side. On this several questions arise: Are such documents still in existence ? In whose handwriting are they? Are they within jurisdiction? If the originals cannot be produced, can copies be procured or any other secondary evidence of their contents? If so, are the copies. admissible? How can they be proved to be correct copies? Need the person who made such copies be called as a witness? Counsel should go carefully through the notice to inspect and admit, and the notice to produce, and advise on their sufficiency. Several statutes have been passed which make copies of registers and other public and official documents admissible in evidence, if duly authenticated. Counsel must be careful to advise the solicitor to obtain the proper kind of copy which is made admissible by the particular Act. Where the defendant justified a libel which imputed insolvency to the plaintiff, he was not allowed to obtain a copy of the plaintiff's banking account under the Bankers' Books Evidence Act, 1879 (42 Vict. c. 11, s. 7). (Emmott v. Star Newspaper Co., (1892) 9 Times L. R. 111.)

Counsel is often at this stage of the proceedings consulted as to the advisability of securing a special jury, or of applying to change the venue.

Mode and place of trial are usually dealt with by the Master on the Summons for Directions. If no order has been made in respect of these matters, or if either party desires that the order made be varied, a special application should be made by notice under Order XXX. r. 5. Either party can obtain a special jury if he gives notice within the time mentioned in Order XXXVI. r. 7 (b) and (c); if he allows this period to elapse, he cannot demand a special jury as of right; but there is generally no difficulty in securing one, unless the application is made with the object of delaying the trial. There is practically only one ground now on which either party can at this stage of the proceedings ask the Master to change the venue, and that is "local prejudice." The Master will alter the place of trial if he is satisfied that there is no probability of a fair trial in the place originally fixed, e.g., if a local newspaper of extensive circulation has recently published unfair attacks on either party with reference to the subjectmatter of the action. (Pybus v. Scudamore, (1839) Arnold, 464; Walker v. Brogden, (1864) 17 C. B. N. S. 571.) Such extraneous facts must be proved by affidavit.

Letters of Request, or Commission Abroad.

Several foreign Governments object to commissions being issued, and to examiners administering oaths to witnesses within their dominions. Hence, now the Foreign Office, at the request of the Lord Chancellor or the Lord Chief Justice, frequently sends through diplomatic channels a letter of request addressed to the tribunal of such other country asking the judges of that tribunal to order the required evidence to be taken and remitted to the English Court. This plan is found to be cheaper than the writ of commission, which, however, is still employed for the examination of witnesses in the United States of America, and occasionally in our Colonies.

A defendant will obtain letters of request or a commission more readily than a plaintiff who has chosen his own forum. (Ross v. Woodford, (1894) 1 Ch. 38; 63 L. J. Ch. 191; 42 W. R. 188; 70 L. T. 22.) The affidavit filed in support of such an application must state the name of at least one witness whom it is desired to examine. (Howard v. Dulau & Co., (1895) 11 Times L. R. 451.)

And the general nature of the evidence which such witness is expected to give should also be stated. (Barry v. Barclay, 15 C. B. N. S. 849.) If such evidence is not directly material to some issue in the cause, but only incidentally useful in corroboration of other evidence, the application will not be granted. (Ehrmann v. Ehrmann, (1896) 2 Ch. 611; 65 L. J. Ch. 745; 45 W. R. 149; 75 L. T. 37.) The plaintiff himself will not, as a rule, be allowed to give his evidence abroad on commission; it should be given before the jury here. (Keeley v. Wakley, (1893) 9 Times L. R. 571.) But a defendant, if resident abroad, will be allowed this indulgence. (New v. Burns, 64 L. J. Q. B. 104; 43 W. R. 182; 71 L. T. 681.) The application is not usually made till after issue joined; but it may be made earlier, if there be special reasons for such urgency. The application will fail if it can be shown that the witnesses could be brought to England without much greater expense, or that witnesses now in England could give the same evidence. (The M. Moxham, 1 P. D. 107, 115; 24 W. R. 597; Spiller v. Paris Skating Rink Co., W. N. 1880, 228.) Sometimes the mere delay, which will thus necessarily be caused, is a sufficient reason for refusing the application. (Steuart v. Gladstone, 7 Ch. D. 394; 47 L. J. Ch. 154; 26 W. R. 277; 37 L. T. 575; but see Milissich v. Lloyd's, W. N. 1875, 200.) The costs of the commission must be borne by the party who applied for it, unless the judge at the trial makes any order in respect of them. (In re Imperial Land Co. of Marseilles, 37 L. T. 588; W. N. 1877, 244.)

CHAPTER XXV.

TRIAL.

As soon as Notice of Trial has been given the cause must be entered for trial in accordance with rules 11-20 of Order XXXVI.: the case will eventually make its appearance in the day's cause list. When once the case has been called on in Court, and the jury have been sworn, the trial must proceed. The plaintiff cannot discontinue. (Fox v. Star Newspaper Co., (1900) A. C. 19; 69 L. J. Q. B. 117; 48 W. R. 321; 81 L. T. 562.)

At the trial of any action of libel or slander the plaintiff is always entitled to begin, even where the burden of proof lies on the defendant for the damages are unliquidated. (Carter v. Jones, 6 C. & P. 64; 1 M. & R. 281; Mercer v. Whall, 5 Q. B. 447, 462, 463; 14 L. J. Q. B. 267, 272.) The plaintiff's counsel generally begins by proving the plaintiff's special character, if any, and the publication of the words complained of.

Proof of the Plaintiff's special Character.

Where the words are actionable only by reason of the plaintiff's holding an office or exercising a profession or trade, the plaintiff must prove that he held such office or exercised such profession or trade at the date of publication, and that the words complained of were spoken of him in that capacity. Sometimes the words themselves admit the plaintiff's special character, or it may be admitted on the pleadings; if so, it is, of course, unnecessary to give any evidence on the point. (Yrisarri v. Clement, 3 Bing. 432; 4 L. J. C. P. (Old S.) 128; 11 Moore, 308; 2 C. & P. 223.)

Strict proof of the plaintiff's special character is not, as a rule, required. Thus, to prove that a person holds a public office, it is not necessary to produce his written or sealed appointment thereto. (Berryman v. Wise, 4 T. R. 366; Cannell v. Curtis, 2 Bing. N. C. 228; 2 Scott, 379.) It is sufficient to show that he acted in that office, and it will be presumed that he acted legally. So, where the libel imputes to the plaintiff misconduct in his practice as a physician, surgeon, or solicitor, and does not call in question or deny his

qualification to practise, he need only prove that he was acting in the particular professional capacity imputed to him at the time of the publication of the libel. (Smith v. Taylor, 1 B. & P. N. R. 196, 204; Rutherford v. Evans, 6 Bing. 451; 8 L. J. C. P. (Old S.) 86.) It is, as a rule, sufficient to call the plaintiff to say, "I am an M.R.C.S.,” or "I am a barrister." But when the libel or slander imputes to a medical or legal practitioner that he is not properly qualified, and the professional qualification is again denied on the pleadings, the plaintiff should always be prepared to prove it strictly, by producing his diploma or certificate, duly sealed or signed, and stamped, where a stamp is requisite. At Common Law there was no other way. (Moises v. Thornton, 8 T. R. 303; Collins v. Carnegie, 1 A. & E. 695; 3 N. & M. 703; Sparling v. Haddon, 9 Bing. 11; 2 Moo. & Scott, 14.)

But now the "Law List" is by the 23 & 24 Vict. c. 127, s. 22, made primâ facie evidence that any one whose name appears therein as a solicitor is a solicitor duly certificated for the current year; and similarly, by the 21 & 22 Vict. c. 90, s. 27, the "Medical Register" is primâ facie evidence that the persons specified therein are duly registered medical practitioners. But if it is known the plaintiff's qualification will be seriously challenged at the trial, it is safer not to rely solely on such primâ facie proof, but to produce all diplomas and certificates. If the plaintiff sues as a solicitor, and his name. does not appear in the "Law List," that may be only because he has not taken out his certificate for the present year; in which case he may still sue for a libel on him as solicitor. (Jones v. Stevens, (1822) 11 Price, 235.) So, too, a medical man can sue for a libel on him professionally, although his name does not appear in the "Medical Register," if he can show by a certificate under the hand of the registrar, or in any other way, that he is duly qualified and entitled to be registered.

Proof of Publication.

The plaintiff must next prove that the defendant published the libel or spoke the slanderous words to some third person. As to what is a sufficient publication in law, see ante, Chapter VI., pp. 150-172. As to constructive publication by a servant or agent, see ante, pp. 545–552. As to publication by telegram, see Williamson v. Freer, L. R. 9 C. P. 393; 43 L. J. C. P. 161; 22 W. R. 878; 30 L. T. 332; Chattell v. Turner, (1896) 12 Times L. R. 360; by postcard, Robinson v. Jones, 4 L. R. Ir. 391; Sadgrove v. Hole, (1901) 2

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