CHAPTER XVI. EVIDENCE FOR PLAINTIFF. Proof of publication; of oral publication; of publication in writing; of its application to plaintiff; of defendant's liability-Opinion of witnesses as to meaning-Proof of inducement; of plaintiff's good reputation; of malice; to aggravate damages-Falsehood not evidence of malice-Other publications by defendant; subsequent publications; publication after commencement of action-Defendant's wealth-Defendant's ill-will to plaintiff-Ill-will to plaintiff of persons other than the defendant-The publication itself evidence of malice-Attempted justification an aggravation-Evidence in reply. 373. If the publication is denied, a publication must be proved, and the publication proved must be one for which the defendant is responsible. On this subject much 1 As to proof of the time of publication see ante, § 327. 2 Where the general issue, as well as special pleas admitting the publication are pleaded, plaintiff is bound to prove the publication in the same manner as if there were no special plea. (Ricket v. Stanley, 6 Blackf. 169; Wheeler v. Robb, 1 Blackf. 330; Wright v. Linsay, 20 Ala. 428; Whitaker v. Freeman, 1 Dev. 271; Doss v. Jones, 5 How. [Miss.] 158; Cheadle v. Buel, 6 Ham. 67; Vassear v. Livingston, 13 N. Y. 256; Ayres v. Covill, 18 Barb. 264; Brooks V. Dutcher, 36 No. West. Rep. 128; contra, Jackson v. Stetson, 15 Mass. 48; Alderman v. French, 1 Pick. 1.) These last two decisions led to the passage of a statute in Massachusetts (act of 1826, ch. 107), by which it is enacted that in all actions for libel and slander wherein defendant may plead the general issue and a justification that the words written or spoken are true, the plea in justification shall not be taken as evidence that defendant wrote or spoke such words or made such charge, nor shall, in case defendant fail to establish it, be of itself proof of malice, but the jury shall decide upon the whole case, whether the plea was made with malicious intent. This statute, in Hix v. Drury (5 Pick. 303), was called " a great departure from the common law of England and of this (Massachusetts) Commonwealth." The fact is that the case of Jackson v. Stetson is opposed to all principle and precedent. (See a note to that case in the edition of Massachusetts Reports, with notes by Benjamin Rand, has already been said in a previous chapter (Ch. VI). Whether there has been any publication by the defendant is a question of fact for the jury, but what amounts to a publication for which the defendant is responsible as publisher is a question of law for the court.1 If 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.2 $ 374. The post-mark on a letter has been held prima facie evidence of the publication of the letter. The production by the plaintiff on the trial of a letter addressed to a third person, held evidence of the publication of the Boston, A. D. 1858; see note & 400, post.) If a newspaper publisher, on request, refuses to give up the name of the author of an alleged libel published in his paper, he takes the place of such author, and is not entitled to any privilege or excuse founded on sympathy for the publisher. (Hibbins v. Lee, I Law Times, N. S. 541; 4 Fost. & F. 243.) 1 A committee appointed by a society to investigate certain bills, presented by plaintiff, without special authority made a special report in print. Copies were freely taken from the secretary's desks, and the report subsequently adopted by the society. Held, that there was no evidence of publication by the society. (De Linancour v. Société Prévoyance, 16 No. East. Rep. 555 [Mass.].) As to proof of liability as publisher under 6 & 7 Vict. c. 96, see Reg. v. Holbrook, 39 Law Times Rep. 556. 2 Stark. Ev. tit. Law and Fact; see Prescott v. Tousey, 50 N. Y. Superior Co't, 12; and ante, & 108. Where an alleged libel is placed where it might be seen and read, it is unnecessary to prove it was seen and read. (Giles v. The State, 6 Ga. 276.) In those States in which a party may be witness in his own behalf, the plaintiff may prove the speaking by the defendant of the words complained against, although other persons than plaintiff and defendant were present at the time. (Hess v. Fockler, 25 Iowa, 9.) Defendant's admission that she supposed she had repeated the story, equivalent to an admission of publication. (Burt v. McBain, 29 Mich. 260; see Kine v. Sewell, 3 M. & W. 297) Plaintiff cannot prove the publication by showing that defendant as a witness in another case had admitted speaking the words complained of. (Osborne v. Forshee, Sup. to 2 Mich. N. P. Rep. 43; see The State v. Riggs, 39 Conn. 498; see post, note to § 381.) Where the only witness to prove an oral publication was a German, the court refused to disturb a verdict for the plaintiff on the ground that it was not shown but that the words were spoken in English, which language the witness did not ́understand. (Hurtert v. Weines, 27 Iowa, 134.) 3 Shipley v. Todhunter, 7 C. & P. 680; Hitchon v. Best, I B. & B. 299; Rex v. Watson, 1 Camp. 215; Rex v. letter, without the oath of the person to whom the letter is addressed. Where the letter produced was addressed to a person in Scotland, with the seal broken and a postmark of a place in England, where it was proved to have been received and forwarded, held prima facie evidence that the letter was received by the party to whom it was addressed, and of its publication.? Where the defamatory matter was contained in a letter addressed by the defendant to the plaintiff, and there was no evidence of its publication, other than the production of the letter by the plaintiff, it was held not sufficient ; but where, in addition, it was shown that the letter was in the handwriting of the defendant, and that he had read it aloud in the presence of several persons, it was held that the letter might be read to the jury. The defendant had been chairman of a public meeting, at which the libel in question had been signed by him, and ordered by the meeting to be published; on a demurrer to evidence, an affidavit of the defendant, and one of A., which the defendant in his own affidavit referred to as correct, stating that the address was ordered to be published, and admitting and justifying the publication, together with a copy of the address annexed to the affi davits, and referred to in them, were held sufficient evidence of publication.5 § 375. Where a witness who heard the words spoken immediately committed them to writing, he may, on Johnson, 7 East, 65; Fletcher v. 1 Callan v. Gaylord, 3 Watts, 321. A post-mark does not prove itself how proved see Abbey v. Lill, 5 Bing. 299; Woodcock v. Houldsworth, 16 M. & W. 124. 2 Warren v. Warren, I Cr. M. & R. 250; 4 Tyrw 850; Stocken v. Collin, 7 M. & W. 515; see Mills v. The State, 18 Neb. 575. swearing that he wrote down the exact words, read what he wrote in evidence. If the words were not written down until some time after the witness heard them, although he may not read his memorandum in evidence, he may, to refresh his memory, refer to his original memorandum,' but not to a copy of it. In actions of slander, witnesses cannot be allowed to state the impression the words used made upon their minds, but they must state positively, or as near as memory will allow, the exact words.3 375 a. We have already more than once called attention to the fact that the plaintiff must show the language published and of which he complains was "concerning him." (§ 131.) He has to show or allege this in his pleading (§ 316), and in all cases it is a question of fact for the jury (§ 286) upon the trial. Where the plaintiff is mentioned by name, that fact alone furnishes a presumption that he is the person intended.* But where the name of the plaintiff is not stated, or where a portion only of his name is stated, then if the application of the matter to the plaintiff is denied, the burden is upon him to show its application. To do this he must prove facts which show such application; he cannot prove the application directly, by asking a witness who has read the publication whom he understood to be intended." Thus, where the publication was on its face concerning one Leo, upon the trial witnesses, against the objection of the defendant, were allowed to testify that upon reading the article they recognized its 1 Sandwell v. Sandwell, Holt R. 295; Huff v. Bennett, 6 N. Y. 337. Burton v. Plummer, 2 Adol. & El. 343. 3 Teague v. Williams, 7 Ala. 844; Alley v. Neely, 5 Blackf. 200; Rainy v. Bravo, L. R. 4 P. C. 287; contra, Hawks v. Patton, 18 Ga. 52. Where, in an action for slander, it is important to show that the charge proved by a witness for the plaintiff had reference to a trial, it is not indispensable for the witness to give the exact words of defendant showing such reference; but if this is desired, they should be elicited on cross-examination. (Douge v. Pearce, 13 Ala. 127.) Where, in slander, there is a question as to the exact words used, and the case is left to the court, its decision will not be reviewed. (Hahn v. Hull, 3 Cent. Rep. 726 [Ct. of App. Md.].) Note to § 131, ante; The People v. Snyder, 41 N. Y. 403. 131, ante. 5 Note to application to the prosecutor; this was held error.1 It is not permissible to show defendant slandered others, as proof he slandered plaintiff.2 § 376. In an action of libel against the proprietor of a newspaper, a copy of the paper bought at the office of such proprietor, the paper alleging on its face that the defendant is the proprietor, sufficiently connects the defendant with the paper, and a paragraph in it may be read to the jury to show the circulation of the paper. On a declaration in slander, consisting of a single count, in which the slanderous words were alleged to have been uttered by the defendant "on the 1st day of November, 1856, and on divers other days and times before the purchase of the plaintiff's writ," it was held, that the plaintiff might, in support of his action, prove a single uttering of the slander by the defendant on any day prior to the date of the writ. A declaration alleged that the defendants published, or caused to be published, in a certain pamphlet, a libel concerning the plaintiff. From the evidence, it appeared that the defendants were instrumental in procuring the vote of a medical society expelling the plaintiff therefrom for gross immorality. The vote was published among the transac tions of the society, by the regular committee of publication, of which the defendants were not members. Held, that the allegation in the declaration was not supported. That one had heard of a slanderous report with regard to the plaintiff, is evidence to prove the circulation of the 1 The People v. Parr, 25 Week. Dig. 113. 2 Sullivan v. O'Leary, 146 Mass. 322. 3 Fry v. Bennett, 4 Duer, 247; see The State v. Jeandell, 5 Harring. 475, and Reg. v. Stranger, Law Rep. 6 Q. B. 352. Rice v. Cottrel, 5 R. I. 340; Norris v. Elliott, 39 Cal. 72; and as to proving time of publication, see Richardson v. Roberts, 23 Ga. 215; Wright v. Britton, I Morris, 286; Quigley v. McGee, 12 Oregon, 22; and 109, ante. In criminal prosecutions the time is material. (Stichtd v. The State, 8 So. West. Rep. 477.) 456. Barrows v. Carpenter, 11 Cush. |