CHAPTER XXIV.

Of the Replication.

Ir seldom happens that any thing can be replied to the defendant's special plea, except the general replication of de injuria propria, &c. which puts the whole of the defendant's plea in issue.*

In some instances, however, a special replication becomes necessary. As, where the original slander imputes to the plaintiff the commission of a specific crime, and the defendant pleads in justification that the plaintiff was really guilty, the plaintiff may reply, that after his commission of the crime, and before the speaking of the words, he was pardoned.†

And it has been said, that in such case it makes no difference whether the pardon be a special one, of which the defendant was ignorant, or a general one, since a man who takes upon himself to spread slander, does it at his peril; but that if a man who had committed felony, secretly procure a pardon, and another, not knowing of the pardon, cause him to be apprehended for felony, he would be justified, because what he did was for the advancement of justice.

1 Saund. 244. n. 7.

+ Cuddington v. Wilkins, Hob. 81.

But where the pardon is general, containing clauses of exception, it seems the plaintiff should aver that his case does not fall within any of the exceptions.*

And even after a pardon, if the defendant merely say that the plaintiff was a thief, the pardont will not be available.

Where the plaintiff has stated the publication generally to have been made to divers persons, not naming them, and the defendant justifies the publication to particular persons as to the members of a committee of the House of Commons, if the plaintiff mean to insist upon a publication to any others, he should state such publication by way of new assignment.‡

CHAPTER XXV.

Of the Evidence.

THE Course and extent of the evidence to be adduced by the parties at the trial will be considered in the same order with the pleadings by which the evidence is regulated.

First, as to the fact of publication.-Where the action is for words spoken, evidence of the speaking before any third person will be sufficient, though the declaration allege them to have been spoken before A. B. and others.* And where the words are in themselves actionable, it is sufficient to prove some of them which are actionable, provided they be proved precisely as laid.†

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; and if the words be spoken, or libel addressed, to the plaintiff only, without further publication, no action is maintainable, since no temporal damage can have accrued from the defendant's act, but such a publication would be suffi

*B. N. P. 5.

† 2 East, 434. 8 T. R. 150. supra, 309. 1 Will. Saun. 132. n. 2, 2 Esp. R. 226.

cient to sustain an indictment on the ground of its tendency to produce a breach of the peace.

Where a witness, who heard scandalous words spoken, has committed them immediately to writing, he may afterward read the paper in evidence, if he swear that the words contained in it are the very words; and if the words have not been written immediately, the witness may refer to his minutes to refresh his memory.†

In case of libel, before any evidence can be given of its contents, prima facie evidence must be given of a publication by the defendant. Evidence of a publication is either of a publication generally, or of a publication in some particular county or place, and it is either direct or indirect.

The publication may be directly proved, not only by evidence that the defendant, with his own hand, distributed the libel, or exposed its contents, (1 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, but also by maliciously reading or singing the contents of the libel in the presence of others ;§ all of

*Per Holt, C. J. Sandwell v. Sandwell. Holt, R. 295. R. v. Almon, Burr. 2689. Seven Bishops' case. St. Tr. § 5 Rep. 125. Moor, 813.

† Ibid.

(1) A person who has a copy of a libellous caricature, is not liable to an action for maliciously publishing it, if he shows it to another who requests him so to do. Smith v. Wood, 3 Campb. 323. But the Governor of a distant province, who *delivers a pamphlet to his At. General, not for any public purpose, but in order that he might peruse it, will be responsible in an action, if the pamphlet be a libel, such delivery being a sufficient publication. Wyatt v. Gore, H olt's N. P. Rep. 299.

which facts are direct proof of the averment that the defendant published the alleged libel.* But it frequently happens that no direct proof can be given of the defendant's agency in the publication of the libel, and resort must be had to indirect evidence, in order to connect him with the libel, and fix him with its publication. The most usual and important piece of 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.t(1)

It was observed by a great authority, that "When a libel is produced written in a man's own hand, he is taken in the mainer, and that throws the proof upon him; and if he cannot produce the composer, the verdict will be against him.”

The grounds of this presumption are plain and reasonable. A man is at liberty to think or to write what suits him; at all events, he incurs no civil responsibility unless he divulge his thoughts to the

* 5 Rep. 125. 9 Rep. 59. b.

† Burr. 2689.

Per Holt, C. J. R. v. Beere, Ld. Ray .417. Mullett v. Hulton, 4 Esp. 248.

(1) Where the defendant sent a letter containing a libel, folded up and unsealed to the plaintiff, by the hands of a third person, who delivered it, without reading it, or allowing any other person to read it, it was held that this did not amount to suck a publication as would support an action. Clutterbuck v. Chaffers, 1 Starkie's Rep. 471. Lyle v. Clason, 1 Caines's Rep. 581. But where it was proved, that a Clerk of the plaintiff's was in the habit of opening, when plaintiff was absent, all letters not marked "private," and this habit was known to defendant, it was held, that such proof was evidence of the defendant's intention that a letter containing a libel, and sent by him to the plaintiff, should be read by a third person, which would be a publication. Delacroix v. Thevenot, 2 Starkie's Rep. 63.