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adduce such evidence in the first instance. And now, since CHAPTER XVI. the Judicature Acts, under which a new system of pleading has been prescribed, the "material facts" upon which the party pleading relies must be stated in his pleading (0). A defendant, therefore, intending to impeach the plaintiff's character at the trial, by evidence in mitigation of damages, must either notify the fact in his pleading, or give particulars thereof seven days before the trial (p). The object of this rule is to prevent the plaintiff from being taken by surprise as to the nature of the evidence to be adduced against him; and to afford him an opportunity of being prepared with evidence to rebut, or to explain, that intended to be brought forward in impeachment of his character.

It is, of course, essential to the production of any loss or Evidence of damage to the plaintiff, that the slanderous matter should have publication. been communicated or published to some third person: in this respect civil differs from criminal liability; the latter, as will be seen, may be consummated by a publication (of a libel) to the party defamed without more; but, with the exception of the case of libel, the means of publication are indifferent, and do not affect the right of action. In the case of libel, it is sufficient if the defendant be the partial instrument of communication, either by assisting in its original construction or subsequent promulgation; if one party were to dictate, a second to write, and a third to distribute written or printed slander, the plaintiff would be without remedy, unless each of these parties were to be considered as responsible for the whole effect produced.

The term "published" is therefore the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him (q). Where the action is for words spoken, evidence of the speaking before any third person will be sufficient. And where the words are in themselves actionable, it is sufficient to prove some of them which are actionable, provided they be proved as laid (r). Proof of But it is not sufficient to prove equivalent words of slander, words of equivalent though they be explained in the same sense by the defendant slander not

(0) See R. S. C. 1883, Ord. XIX. r. 4.

(p) Ibid. Ord. XXXVI. r. 37.

(q) Lamb's case, 9 Rep. 59.

(r) 2 East, 434; 8 T. R. 150.

sufficient.

CHAPTER XVI. himself (s). If the words be spoken, or libel published, in a foreign language, or in characters not understood by those who hear or see them, there is no publication; since there is no communication prejudicial to the plaintiff.

What a publication sufficient to support indictment

or criminal information.

What a

sufficient pub. lication to support a civil action.

Reading a libel aloud.

Publication in ignorance.

If the words be spoken, or libel addressed to the plaintiff only, without further publication, no action is maintainable (t), since no temporal damage can have accrued from the defendant's act (u): but a publication to the prosecutor only is sufficient to sustain an indictment for a libel, on the ground of its tendency to produce a breach of the peace (x). It is not necessary therefore, in a prosecution for a libel, whether by indictment or criminal information, to prove a publication to several persons; publication to one, or even to the prosecutor himself, is all that is required. But where the defendant has given a wide or mischievous circulation to the libel, or has used means otherwise more or less malicious in his mode of publication, the injury is thereby aggravated; and evidence thereof may be given, whether the proceeding is by action or prosecution, for the purpose of showing the nature and extent of the mischief, the animus of the defendant, or in aggravation of the punishment.

To support a civil action it is essential, as has already been observed, to prove a publication of the slander or libel, to some third person.

If a person having a libel in his possession, or a copy of such, read it to one or more persons, the person so reading it is a publisher of the libel, and liable for such publication (y). And where the defendant received an anonymous letter (containing defamatory matter of the plaintiff) whilst at a meeting of a Druids' lodge, of which both he and the plaintiff were members: the defendant having read the letter himself, then, by leave of the chairman, read it aloud to the members present; it was held that reading the letter aloud as above stated, constituted a publication (z).

Where a libel, contained in a letter, folded, but not sealed, was delivered to a third person, to be conveyed to the plaintiff, and was so conveyed without having been read by any one, it was held that no action could be supported (a). But where the

(s) Armitage v. Dunster, 4 Doug. 291.

(t) Edwards v. Wooton, 12 Rep. 35. (u) 1 Will. Saund. 132, n.2; Phillips v. Jansen, 2 Esp. C. 624; and see Hicks's case, Hob. 215; R. v. Wegener,

2 Stark. 245.

(x) R. v. Wegener, 2 Stark. 245. (y) Lamb's case, 9 Co. Rep. 59. () Forrester v. Tyrrell, 57 J. P. 532.

(a) Clutterbuck v. Chaffers, 1 Stark.

defendant, knowing that letters addressed to the plaintiff CHAPTER XVI. were usually opened and read by his clerk, wrote a libellous letter and directed it to the plaintiff; and his clerk received and read it it was held, that there was a sufficient publication to support the action (b).

Where a witness, in an action of libel, stated, that having heard that the defendant had a copy of the print of a caricature (alleged to be libellous), he went to the defendant's house, and requested to see the print; on which the defendant produced it, and pointed out the figure of the plaintiff and the other persons ridiculed: it was ruled, by Lord Ellenborough, C.J., that this was not sufficient evidence of publication to support the action (c).

letters dictated

The managing director of a limited company, in the ordinary Libellous course of business, dictated a libellous letter to their shorthand to and copied clerk, who then type-wrote it, and after signature by the by Clerks. managing director, handed it to another clerk to make a press copy it was then sent by post addressed to the firm of which the plaintiff was a member, and upon delivery was opened and read by the clerks to the firm: it was held, that there was publication-first, to the clerks of the defendant company, and secondly, to the clerks of the plaintiff's firm-and that neither occasion was privileged (d).

A distinction was, however, drawn between communications of the kind in mercantile transactions and those in professional matters by solicitors, it being no part of a merchant's business to write a defamatory letter, and then have it copied by his clerks; but in the case of a solicitor duly instructed by a client to write and press for payment of money, and to threaten legal proceedings in default, the case is different. And accordingly, where a firm of solicitors, acting in behalf of a client, wrote and sent to the plaintiff a letter containing defamatory statements of her; the letter had first been dictated to their shorthand clerk, then transcribed and handed to a copying clerk who copied it into the letter-book. In an action of libel against the solicitors, for the publication to their clerks, it was held, that the intermediate communication of the contents of the letter to the defendants' clerks was reasonably

471; Day v. Bream, 2 Moo. & Rob. 54; Chubb v. Flannagan and Emmens v. Pottle, infra, p. 270.

(b) Delacroix v. Therenot, 2 Stark. 63; and see Ahern v. Maguire, A. M.

& O. 39, per Brady, C.B.

(c) Smith v. Wood, 3 Camp. 323.
(d) Pullman and another v. Walter
Hill & Co., Ltd. (1891), 1 Q. B. 524;
60 L. J. 299.

CHAPTER XVI. necessary and usual in the discharge of their duty to and in the interest of their client, and the occasion was therefore privileged (e). And, accordingly, the use of the ordinary and reasonable means of giving effect to the privilege does not destroy it (f). If a business communication is privileged, as being made on a privileged occasion, the privilege covers all incidents of the transmission and treatment of that communication which are in accordance with the reasonable and usual Publication by course of business (g). But a communication which would be Telegraph. privileged if made by letter, becomes unprivileged if sent through the telegraph office; because it is necessarily communicated to all the clerks through whose hands it passes. And accordingly, where, a message was telegraphed from one railway station to another, to the effect that a certain bank had stopped payment, it was held libellous (h).

By Post-card.

And so also with regard to communications by uninclosed post-cards, which are open to reading by post-office clerks, postmen, servants at the house where delivered, and by all persons through whose hands they pass in the course of transmission from those of the writer until delivered to the person to whom addressed; and therefore, if there be anything defamatory upon them, the person so sending such will be held liable in libel for the publication (i). Where a tradesman transmitted through the Post Office a post-card, on the back of which he stated his account as for goods supplied, giving credit for a payment on account, and showing a small balance due; beneath which he wrote-" Your plea of illness for not paying this trifle is mere moonshine. We will place the matter in our solicitor's hands, if we have not stamps by return, if it cost us ten times the amount." It was held, that although this might have been privileged if sent to the plaintiff by letter enclosed in an envelope; yet, being sent openly on the back of a post-card, it was a libel. That post-cards were intended to be the vehicle of ordinary communications, not of defamatory matter (k). But if the matter written upon the post-card would not be understood by the persons through

(e) Borsius v. Goblet Frères and others (1894), 1 Q. B. 842; 63 L. J. 401.

(f) Edmondson v. Birch & Co., 1 K. B. (1907), 371, C. A.

(g) Per Fletcher Moulton, L.J., in the same. p. 382.

(h) Whitfield and others v. S. E. Ry.

Co., E. B. & E. 115.

(i) Williamson v. Freer, L. R. 9 C. P. 393; 43 L. J. C. P. 161.

(k) Robinson v. Jones, Ir. L. R. 4 Ex. Div. 391; McCann v. Edinburgh Roperie Co., L. R. (Ir.) 28 Q. B. D.

24.

whose hands it passed as referring to the plaintiff, there will CHAPTER XVI. be no evidence of the publication of a libel of him (1).

The publication of a libel may be directly proved, by evidence Direct proof of that the defendant, with his own hand, distributed it or exposed publication. its contents or painted an ignominious sign over the door of another, or took part in a procession carrying a representation of the plaintiff in effigy for the purpose of exposing him to contempt and ridicule; or by evidence of his maliciously reading or singing the contents of the libel in the presence of others; all of which facts are direct proof of the averment that the defendant published the alleged libel (m).

But it frequently happens that no direct proof can be given Indirect proof. of the defendant's agency in the publication, and resort must then be had to indirect evidence, in order to connect him with the libel and fix him with its publication. The most usual and important evidence for this purpose, consists in proving that the libel published is in the handwriting of the defendant: when the plaintiff has proved this, he has made out such a prima facie case as entitles him to have the contents read in evidence (n).

A defendant has been held liable for the publication of a Accidental libel which by mistake was directed and posted to the plaintiff's publication. employer, instead of to the plaintiff himself (o). But Lord Campbell, C.J., in a subsequent case, declined to express an opinion whether or not an action could be sustained if a gentleman, asked by letter for the character of a servant, should bona fide write an answer stating acts of dishonesty and immorality committed by the servant, and by mistake address it to another person different from the inquirer, though of the same name (p). It has, however, been held, that an accidental publication (under similar circumstances), would not, in the absence of express malice, be sufficient to render the defendant liable (g).

It was observed by a great authority, that when a libel is Libel in the handwriting of produced, written in a man's own hand, he is taken in the Defendant. mainer, and that throws the proof upon him; and if he cannot produce the composer, the verdict will be against him (»).

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