CHAPTER XVI. The grounds of this presumption are plain and reasonable. No man incurs any civil responsibility by what he thinks or even writes, unless he divulge his thoughts to the temporal prejudice of another; but it seems to be equally clear, in point both of law and expediency, that if he write what is false, and the calumny become public to the detriment of its object, he is just as responsible for the effects of his negligence as if he had been the voluntary publisher of the scandal. And if a man write libels for his own perusal, he must be content to enjoy the satisfaction, diminished by the risk and peril of an accidental publication and its consequences. As to how far a libel in the Defendant is evidence of publication. If the manuscript of a libel be proved to be in the handhandwriting of writing of the defendant, and it be also proved to have been printed and published; such is evidence to go to the jury that it was published by the defendant, although there be no evidence to show that the printing and publication were by the direction of the defendant (s). And where a libel had been inserted in a newspaper, a manuscript in the handwriting of the defendant, found at the house of the publisher, was allowed to be given in evidence; notwithstanding that parts of it had been erased and omitted in the newspaper; the erased passages not being such as qualified the libel (t). The writing a libel does not, in any case, amount to a publication, but is mere evidence from which it may be inferred (u). What amounts to a publication is usually a question of fact falling within the province of the jury to decide (x); that is, it is a question for the jury, in doubtful cases, whether there has in fact been any publication of the libel to a third person; but where the facts are clear, the question of publication is one of law for the decision of the court. If (in an action for damages) the facts were that the defendant had posted up a libel in a public place, but had taken it down again before any one had read it, there would in point of law be no publication; but if it were doubtful whether, before it was taken down, some one had not read it, that would be a question of fact for the jury (y). Though proof that the libel is in the handwriting of the party, goes far in fixing him with the publication, he is still at liberty to CHAPTER XVI. rebut the strong presumption thus raised against him, by reconciling the fact with his innocence. The best evidence to prove the handwriting in question, is Best evidence of handwriting. that of a witness who actually saw the party write it: such direct evidence can, however, seldom be procured; and, in general, to prove the handwriting of a person, any witness may be called who has by sufficient means acquired such a knowledge of the general character of the handwriting of the party, as will enable him to swear to his belief that the handwriting in question is the handwriting of that person (2). This knowledge of the general character of the party's handwriting, may have been acquired from having seen him write, although but once (a), or, if the witness has never seen him write, it is sufficient if he has obtained a knowledge of the character of the handwriting from a correspondence with the party upon matters of business, or from any other transactions between them, as from having paid bills of exchange according to his written directions, and for which he afterwards accounted. And when letters are sent to a particular person, on particular business, and an answer is received in due course, a fair inference arises that the answer was sent by the person whose handwriting it purports to be (b). If a witness be called and asked if he has ever seen the Witnesses who have seen the party write, and he answer in the affirmative, the subsequent party write. question as to whether he believes the paper produced and shown to him to be in the same handwriting, may then be put. Whether the witness has seen the party write more or less frequently, affects the weight but not the admissibility of the evidence. If the witness has ever seen the party write, it is enough to introduce the subsequent question, whether he believes the paper produced to be in the same handwriting; and if the witness answer "he believes it to be so," that is evidence to go to the jury. "You might call one who had not seen him write for twenty years; and if he said he believed it was the writing of the person, that evidence might go to the jury; but to be affected by all the rest of the evidence; as it is the nature of all evidence to be more or less convincing" (c). () B. N. P. 236; Lord Ferrers v. Shirley, Fitzg. 195. 37. (a) Garrells v. Alexander, 4 Esp. C. (b) Per Lord Kenyon in Carey v. Pitt, Peake's L. E. 105. (c) Per Lord Eldon in Eagleton v. Kingston, 8 Ves. 473. CHAPTER XVI. comparison. By the C. L. P. Act, 1854 (d), comparison of a disputed Evidence of writing with any writing proved to the satisfaction of the handwriting by judge to be genuine, shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in Statutes as to. dispute. This enactment is applicable only to courts of civil procedure. But by a subsequent statute "for Amending the Law of Evidence and Practice on Criminal Trials" (e), its provisions are re-enacted, and extended to courts of criminal judicature. Proof of libel Where the object is to prove a peculiar mode of spelling a by specimens of peculiarity name or other word, letters and other specimens, though not and similitude in evidence in the cause, if proved to be in the same handof orthography. writing, are admissible in order to prove the peculiarity of the orthography (ƒ), and as evidence of the authorship of the libel. Where a witness whose handwriting is in dispute, is present in court, such person may be required by the court to write in its presence, and such writing may be treated as evidence in the cause, and be compared with the document in question (g). As to the evidence of experts. The evidence of experts, derived from comparison of handwriting, is, at the best, but unsatisfactory testimony. It was observed by Patteson, J., in a well-considered case that "the comparison even of an admitted fair specimen, with a disputed writing, is far from satisfactory. Nothing can be more fanciful than the opinions persons are apt to form from such comparison; some dwelling on the general character, some on the peculiar turn of a particular letter, and other minute circumstances of similitude or discrepancy, which every man in his own experience must know may arise from the different pen or ink, or haste or deliberation, with which the same person writes at different times." And the same learned judge observed, that in his opinion the "knowledge of the general character of any person's writing which a witness has acquired incidentally and unintentionally, under no circumstances of bias or suspicion, is far more satisfactory than the most elaborate comparison of even an experienced person called by one side or the other with a particular object" (h). (d) 17 & 18 Vict. c. 125, s. 27. (e) 28 & 29 Vict. c. 18, s. 8. (f) Brookes v. Tichborne, 5 Ex. 929; 20 L. J. Ex. 69. (g) Doe d. Devine v. Wilson, 10 Moo. P. C. C. 502, 530. (h) Doe d. Mudd v. Suckermore, 5 A. & E. 735. With regard to scientific evidence generally, a witness cannot CHAPter XVI. in strictness, be asked his opinion as to the very point the As to scientific jury have to determine (i); nor any question as to which the evidence generally. witness would have to draw a conclusion of fact as well as give an opinion upon it (k). But he may be asked what judgment he can form on the subject, assuming the facts stated in evidence to be true (1). Letter. The mere delivery at the Post Office of a sealed letter Publication by enclosing a libel has been held to constitute a publication in law (m). If a letter be sent by the post, it is primâ facie proof, until the contrary be shown, that the person to whom it is addressed received it in due course (n). The transmission of a letter, by a defendant to his correspondent abroad, reflecting on the plaintiff's character as a merchant, has been held a sufficient publication (o). judge. All preliminary questions of fact upon which the admissi- Letter, bility of evidence depends, are for the judge at Nisi Prius, when a ques originality of, not the jury. And where, in order to prove the publication tion for the of a libel, the plaintiff tendered secondary evidence of the contents of a letter, alleging it to be the original, which the plaintiff denied; it was held, that the judge, at that stage of the cause, was bound to hear evidence, pro and con. the originality of the letter, and decide the question without reference to the jury (p). libel on Addressing a libellous letter to a man's wife reflecting upon To wife, of her husband's conduct, is a publication of a libel upon the husband. husband (q). But whether the sending a libellous letter to To husband, of the husband, reflecting upon the wife, would be a sufficient libel on wife. publication to sustain an action seems doubtful (r). At all events, it would be sufficient to sustain an indictment. If a husband write a libel and hand it to his wife, and she Husband and hand it to the person libelled, such is no publication to sustain wife, publication by. an action for libel against the husband and his wife; they being but one person in law (s). (i) M'Naghten's case, 10 Cl. & Fin. 200. (k) Sills v. Brown, 9 C. & P. 604, per Coleridge, J.; and see Jameson v. Drinkald, 12 Moore, 148. (1) Per Coltman, J., in Fenwick v. Bell, 1 C. & Kir. 312; and per Abbott C.J., in Malton v. Nesbit, 1 C. & P. 72, (m) R. v. Burdett, 4 B. & Ald. 95. (per three justices, the fourth dubitante). (n) Warren v. Warren, 1 C. M. & (0) Ward and another v. Smith, 6 (a) Wenman v. Ash, 13 C. B. 836; (r) See the judgment of Jervis, C.J., 22 L. J. C. P. 192. (8) Wennhak v. Morgan and wife, CHAPTER XVI. A man who authorises, requests, or employs another to Publication by Write and publish a libel is responsible criminally as well as authority of another. By an Agent, or Servant. civilly, for the libel published in pursuance of such authority, request, or employment. And if a man give authority to another to publish a libel of a certain person, on a certain subject, he cannot afterwards defend himself on the ground that the publisher has added comments of his own, if the libel published be substantially identical with that of which he authorised the publication (t): for a man who authorises or employs another, generally, to write and publish a libel, must take his chance of what is published. And though the publisher may have deviated from his authority, the employer will nevertheless be liable civilly, though, in that case, he may not be criminally responsible. A defendant may be guilty of publishing a libel not only Porter, Carrier, by distributing copies of it with his own hand, but also by employing an agent for the purpose (u). But a porter or carrier, who in the course of his business delivers a parcel containing libellous handbills, is not liable to an action for the publication of the libels, if it be shown that he was wholly ignorant of the contents of the parcel; but being primâ facie liable, it is for him to prove such ignorance (x). By Newsvendor in ignorance of contents. Innocent loan containing And where a news-vendor in the ordinary course of his business, sold copies of a newspaper containing a libel; but it was expressly found by the jury that he did so without knowing, and without negligence in not knowing, that it contained such; and that the newspaper was not one of such a character as to be likely to contain libellous matter; it was held, upon these findings, that the news-vendor was not liable to an action for such publication of the libel (y). And if a person innocently hands over, or lends, a newspaper of a newspaper to a friend, with no knowledge that it contains anything defamatory of another, such would not be a publication by such lender of the defamatory matter contained in the newspaper (2). defamatory matter. Book in a circulating Library containing a Libel. But where the proprietors of a circulating library, had copies of a book containing a libel, which they circulated, but 20 Q. B. D. 635; 57 L. J. 241; and (t) See The Queen v. Cooper, 8 Q. B. (u) 7 East, 65; Bac. Ab. tit. Libel, 458; Edwards v. Wooton, 12 Rep. 35. (x) Day v. Bream, 2 Moo. & Rob. 54; Chubb v. Flannagan, 6 C. & P. 431. (y) Emmens v. Pottle & Son, 16 Q. B. D. 354; 55 L. J. 51. (2) See McLeod (App.), St. Aubyn (Resp.) (1899), A. C. 549, 562. |