BY THOMAS STARKIE, Esq. VOL. II. LONDON: J. AND W. T. CLARKE, LAW BOOKSELLERS AND PUBLISHERS, CHAPTER I. Of the Evidence. THE natural order of the evidence, in an action for slander, on the part of the plaintiff, where the general issue has been pleaded, is— 1st. Of special character and extrinsic facts, when they are essential to the action. 2dly. Of the act of speaking the words or publishing the libel. 3dly. Of the truth of the colloquium and innuendos. 4thly. Of the defendant's malice and intention, where malice in fact is material. 5thly. Of the damage. First, as to the proof of special character, and other extrinsic facts. Where the special character is essential to the action, it is alleged either generally or particularly. When it is generally alleged, it is usually sufficient to prove, by general evidence, that the plaintiff is in the actual possession of the office or situation in which he has been defamed, with out strict proof of any legal inception or investment. For in an action against a mere wrongful invader or disturber, a party is not to be put to the hazard or peril of giving detailed and conclusive proof of his title; and it is to be presumed, till the contrary be shown, that he acted legally. And, therefore, where a plaintiff avers generally that he filled any particular situation or office, in which he has been calumniated, or that he exercised any particular profession or business, it is sufficient to give general evidence of his having acted in that office or situation, or of his having exercised that particular profession, or carried on that trade or business. If the declaration allege that the plaintiff was, at the time of the alleged injury, a magistrate or peace officer (ƒ), it is sufficient to show that he previously acted as such. If it allege that the plaintiff was an attorney of such a court, it is sufficient to show that he was before and at the time practising as an attorney of that court (g). It has indeed been (f) Per Buller, J. Berryman v. Wise, 4 T. R. 366. Gordon's case. Leach. 581. R. v. Shelly, Leach. 581. n. (g) Berryman v. Wise, 4 T. R. 366. Starkie on Evidence, iv. 372. In the case of Berryman v. Wise, 4 T. R. 366. the plaintiff averred that he was an attorney of the Court of King's Bench, and having been employed in a particular cause, had received a certain sum of money, which the defendant doubted, whether, under an allegation that the plaintiff was at the time of the alleged slander a physician, it was necessary to produce a diploma; and the judges of the Court of Common Pleas were equally decided upon this question (h). charged him with swindling, adding a threat, that he would move the court to have him "struck off the roll of attornies." Upon the trial before Thomson, Baron, at the York assizes, the plaintiff proved the words, and his having been employed as an attorney in that and other suits. It was objected that the plaintiff had not proved the first allegation, in his declaration, viz. that he was an attorney of the Court of King's Bench, which could only be proved by his admission, or by a copy of the roll of attornies; but the objection was over-ruled, the learned judge reserving the point with liberty to move to enter a nonsuit. Upon motion made to that effect, the court were of opinion, that the evidence was sufficient, for the defendant's threat imputed that the plaintiff was an attorney. And Buller, J. said, in the case of all peace-officers, justices of the peace, constables, &c. it is sufficient to prove that they acted in those characters, without proving their appointments, and that even in case of murder. Excise and custom-house officers, indeed, fall under a different consideration, but even in their case, evidence was admitted, both in civil and criminal suits, to show that the party was a reputed officer prior to the 11th G. I. c. 10. s. 12. 1 (h) Smith v. Taylor, 1 N. R. 196. In the previous case of Pickford v. Gutch, Cor. Buller, J. Dorchester assizes, 1787, the action was brought for calling the plaintiff a quack. The declaration alleged that the plaintiff had used and exercised the profession, &c. of a physician, &c. To prove this, a person, who was a surgeon and apothecary, was called, who |