cated upon. Our remarks, while they will more particularly refer to the State of New York, will occasionally extend to other States and to the practice in the courts of England. As the Code of Procedure of the State of New York has been the model for the Codes of Procedure of other States, references to the Code of New York will have a wide field of practical utility. The topics of Parties, Pleading, and Evidence will be considered in subsequent chapters.'

267. The action for slander or libel is commenced by summons, in the form known as a summons for relief. The summons may be served by publication. The action must, with certain exceptions, be commenced within two years of the time of the publication, and within the lifetime of the person affected by the defamatory matter;3 it cannot be brought in a court of a justice of the peace.' It may be brought in the Marine Court of the city of New York, if the damages claimed do not exceed $2,000. And in cases which might be brought in the Marine

1 Add to note at p. 95, ante, that Whitehead v. Kitson is reported 119 Mass. 484. An agreement not to permit the columns of a newspaper to be used for the publication of matter detrimental to the covenantee, held to be too vague to be enforced. (Fowler v. Hoffman, 31 Mich. 216.) In an unreported case against Walter Savage Landor (the author of " Imaginary Conversations," &c., &c.), one count in the declaration was on an agreement by defendant not to libel the plaintiff, and that he had broken said agreement.

Code of Pro. § 135; see Waterhouse v. Hatfield, 9 Ir. L. R. 38. 3 Code of Pro. § 93. This is rendered doubtful by the law of 1871, ch. 733, which amends § 94 of the Code of Procedure, by adding thereto actions for injuries to the person. If this is to include the actions for libel and slander, then the period of limitation is one year only.

See post, Parties, § 299. In some cases in England, the plaintiff must give notice of action. (See Norris v. Smith, 10 A. & E. 190; Beechey v. Sides, 9 B. & C. 806; Lidster v. Borrow, 9 A. & E. 654.) In an action for slander against one who held the office of clerk of a market, the defense that no notice of action had been given prevailed, on the ground that the words spoken was a thing done. (Murray v. McSwiney, 9 Ir. R. Com. Law, 545.)

4 Code of Pro. § 54. Actions for libel and slander are excepted from the jurisdiction of the County Courts in England, 9 and 10 Vict. ch. 95; 12 and 13 Vict. ch. 101; 13 and 14 Vict. ch. 61; 15 and 16 Vict. ch. 54.

Court, if the action is brought in any other court, the plaintiff can recover only Marine Court costs.' The plaintiff in an action for slander or libel cannot issue an attachment against the property of the defendant,' but the defendant, whether male or female, may be arrested and held to bail at the commencement of the action, or at any time before judgment therein;3 and after the return unsatisfied of an execution against the property of the defendant, an execution may issue against his person,* even in the case of an infant defendant. A married woman sued with her husband may be held to bail. If the plaintiff fails in the action, a judgment against him for the costs may, after an execution against his property has been returned unsatisfied, be enforced by an execution against his person.

The plaintiff may be required to

1 Laws of N. Y. 1853, p. 1165; Murray v. De Gross, 3 Duer, 668. Statutes provided: Any court of record in the city of New York, might send any action of libel or slander pending in said court and at issue, to the Marine Court for trial. (See Laws 1871, p. 1817; Laws 1870, p. 1346; Laws 1872, ch. 629; Laws 1874, ch. 545.) But these provisions were held to be unconstitutional. (De Hart v. Hatch, 6 Sup. Ct. Rep. [T. & C.] 186; 10 Sup. Ct. Rep. [3 Hun], 375.)

And so in South Carolina.

(Sargent v. Helmbold, Harper, 219.)

Code of Pro. §§ 179, 183. In England the holding to bail in an action for libel is of very rare occurrence. (Folkard, Stark. Slan. 548.) In New York city, the practice of holding to bail in actions for libel or slander is now discouraged by the courts. (See Knickerbocker Ins. Co. v. Ecclesine, 6 Abb. Pr. Rep. N. S. 9; Butts v. Burnett, Id. 302; but see Button v. Richards, 13 Id. 258; Blakelee v. Buchanan, 44 How. Pr. R. 97.)

Code of Pro. §§ 179, 288; see Baker v. Swackhamer, 5 How. Pr. Rep. 251; Straus v. Schwarzwaelden, 4 Bosw. 627; Brooks v. McLellan, 1 Barb. 627; Davis v. Scott, 15 Abb. Pr. Rep. 127; Peareson v. Picket, 1 McCord, 472; Newton v. Rowe, 8 Scott N. R. 26; Defries v. Davies, 3 Dowl. Pr. Cas. 629. A defendant in custody on an execution for damages in slander or libel, is not discharged therefrom by the English bankrupt law; see I Doria & McCrea's Law of Bankruptcy, 349. Query as to the United States bankrupt law.

'Defries v. Davies, 3 Dowl. 629. The defendant in an action for slander, aged 15 years, was taken in execution for the damages and costs, and the court refused to release him. (Id.)

'Schaus v. Putscher, 25 How. Pr. Rep. 436.

"Kloppenberg v. Neefus, 4 Sandf. 655. And on judgment for defendant in an action for libel by husband and wife, execution may go against the person of the wife. (Newton v. Boodle, 9 Q. B. 948; 11 Jur. 628; and see Newton v. Rowe, 8 Scott N. R. 26.)

give security for costs, as in other actions. slander or libel may be consolidated.❜

Actions for

§ 268. The actions of slander and libel are of the kind known as transitory.3 The place of trial (the venue) should be the county in which the parties, or some of them, reside; or if none of the parties reside in the State, then in any county the plaintiff may designate,+ subject in every case to the power of the court to change the place of trial.5

1 Court refused to increase amount of security to cover expenses of foreign witnesses. (Pizani v. Lawson, 5 Sc. 418.) By Statute 30 and 31 Vict. ch. 142, § 10, it is enacted that in actions of malicious prosecution, **** slander, seduction, or other action of tort brought in a superior court, the plaintiff may be required to give security for costs, or satisfy a judge that he has a cause of action, otherwise the action is to be remitted to the county court. In California, plaintiff in an action for libel or slander must in all cases give security for costs, and the same law prevails in some other States.

2 See an instance, Whitely v. Adams, 15 C. B. N. S. 392; 10 Jurist. N. S. 47; Percy v. Seward, 6 Abb. Pr. R. 326. The court refused to consolidate actions for the same libel, one against the publisher and the other against the editor of the newspaper in which the libel was published. (Cooper v. Weed, 2 How. Pr. Rep. 40.) Where A. and B. having recovered in separate actions against different parties engaged in the publication of the newspaper in which the libel was published, commenced other actions against the same parties, each suing the party against whom the other had recovered, the court, on motion, refused to stay the proceedings in the second actions. (Martin v. Kennedy; Bunning v. Perry, 2 Bos. & Pul. 69. See Jones v. Pritchard, 6 Dowl. & L. 529; 18 Law Jour. 104, Q. B.; ante, note 4, p. 220.)

Hull v. Vreeland, 42 Barb. 543; Owen v. McKean, 14 Ill. 459; Teagle v. Deboy, 8 Blackf. 134; and see Wickham v. Baker, 4 Blackf. 517, ante, § 110, and note, P. 154.

4 Code of Pro. $ 125. Formerly it was a ground for arresting or setting aside the judgment if the venue was laid in the wrong county. This was altered by the statutes 16 and 17 Car. II, ch. 8; 4 Anne, ch. 16; Clerk v. James, Cro. Eliz. 870; Craft v. Boite, I Saund. 241. The court may order the plaintiff's attorney to disclose the place of residence of his client. (Worton v. Smith, 6 Moore, 110.)

5 Code of Pro. § 126. As to changing venue, see Phillips v. Chapman, 5 Dowl. Pr. Cas. 250; Ryder v. Burke, 10 Ir. Law Rep. 476; Robson v. Blackman, 2 Dowl. 645; Clements v. Newcombe, 1 Cr. M. & R. 776; 3 Dowl. Pr. Cas. 425; Pybus v. Scudamore, 7 Sc. 124; Hobart v. Wilkins, I Dowl. 460; Wheatcroft v. Mousley, II C. B. 677; Pinckney v. Collins, 1 T. R. 571; Clissold v. Clissold, 1 T. R. 647 ; Metcalf v. Markham, 3 T. R. 652; Barnes v. Holloway, 8 T. R. 150; Hitchon v. Best, I B. & P. 299; Lucan v. Cavendish, 10 Ir. Law Rep. 536; Callagher v. Cavendish, 3 Ir. Law Rep. 375; Root v. King, 4 Cow. 403; Shaftsbury's Case, 1 Vent.

§ 269. In certain cases, either party is entitled to the production and inspection of documents in the possession or control of his adversary.' Where, in an action for a libel, the plaintiff moved for an order upon the defendant to deliver to him a copy of a printed book in his, defendant's possession, in order to enable him, plaintiff, to prepare his complaint in the action-per curiam: Without expressing any opinion as to the propriety of compelling a defendant, in an action for a libel, to deliver to the plaintiff a copy of the libel, I am clearly of the opinion that this motion should not be granted, because 1. The affidavits do not show what is stated in the book of which the plaintiff seeks a discovery, and therefore the court cannot decide whether it is material or not. 2. Because the affidavits do not specify any particular information desired, so that the court could order a sworn copy to be delivered. 3. Because plaintiff is not entitled to the whole book, but only to the particular article on which his action is founded. Upon an application in an action for libel, for leave to examine a defendant before service of any complaint, the court much doubted the propriety of exercising the power of the court to enable the plaintiff to obtain facts upon which

364; Greenslade v. Ross, 3 Dowl. Pr. Cas. 697; Tallent v. Morton, 1 M. & P. 188; Copham v. Leach, 32 Law Times, N. S. 665.

Where the application is on special grounds, it should not be made until after issue joined. (Hodge v. Churchyard, 5 C. B. 495; Griffin v. Walker, 7 Sc. 846.) The venue changed after a nonsuit. (Price's notes, Points of Pr. 177.) It was held no ground for changing the venue in an action for libel published in a local newspaper, that the defendant, the proprietor of the paper, possessed much influence in the county in which the venue was laid, and had, since the commencement of the action, evinced a disposition to use it to the prejudice of the plaintiff. But the court intimated that they would interfere if the defendant should before the trial publish anything in relation to the matter of the action reflecting upon the plaintiff. (Walker v. Brodgen, 17 C. B. N. S. 571.)

1 Code of Pro. § 388; 2 Rev. Stat. of N. Y. 199; Court Rule 18. And under the English common law procedure act. (Collins v. Yates, 27 Law Jour. 150, Ex.) 9 Lynch v. Henderson, 10 Abb. Pr. R. 345, note.

to frame his complaint. And in an action against certain individuals named, and certain others not named (except by fictitious names), for a libel in a newspaper of which the defendants named, with the others not named, were alleged to be the proprietors, the plaintiff alleged that the names of the proprietors were unknown to him, and that it was pretended that the newspaper was the property of a corporation, and asked for an inspection of the books of such corporation to enable him to ascertain the true names of the proprietors of the newspaper. The application was denied.2

$270. In England, a bill of discovery is allowed in certain cases in an action for libel,3 and interrogatories may be exhibited to ascertain the precise words used, but the court refused to permit a plaintiff to exhibit interrogatories to the defendant, the answers to which, if in the affirmative, would tend to show that he composed or published the libel, and would therefore criminate him. In an action for imputing to the plaintiff that he

Keeler v. Dusenbury, 1 Duer, 661.

2 Opdyke v. Marble, 44 Barb. 64; and see McCue v. Tribune Asso. 8 Sup. Ct. Rep. (1 Hun), 469; 4 Sup. Ct. Rep. (T. & C.) 467.

3 By statute, 6 & 7 W. IV, and 32 & 33 Vict., authority is given to file a bill of discovery of the name of any person concerned as printer, publisher, or proprietor of any newspaper, or of any matters relative to the printing or publishing of any newspaper, in order to bring or carry on any suit for libel. As to a bill of discovery in aid of an action for libel, see Macaulay v. Shackell, 1 Bli. N. S. 96; 2 Sim. & St. 79; Wilmot v. McCabe, 4 Sim. 263; March v. Davison, 9 Paige, 580; Stat. 32 Geo. III, ch. 60; Stewart v. Nugent, 12 Legal Observer (London), 210; Dixon v. Enoch, Law Rep. 13 Eq. Cas. 394.

4 Atkinson v. Fosbrook, Law Rep. 1 Q. B. 628; 14 Law Times, N. S. 553; 17 & 18 Vict. ch. 125; 32 & 33 Vict. ch. 24; see note to § 379, post.

5 Tupling v. Ward, 6 Hurl. & Nor. 749; Edmunds v. Greenwood, Law Rep. 4 C. P. 70; but see Baker v. Lane, 3 Hurl. & Colt. 544; 34 Law Jour. N. S. 57 Ex. ; 10 Jurist, N. S. 117; 11 Law Times, N. S. 38, as explained in Beckford v. D'Arcy, Law Rep. 1 Ex. 354; 14 Law Times, N. S. 629; see also Stern v. Sevastopulo, 14 C. B. N. S. 737; Moor v. Roberts, 2 C. B. N. S. 671; Bartlett v. Lewis, 12 C. B. N. S. 249. When court will not review order allowing an interrogatory. (Inman v. Jenkins, 39 Law Jour. 258, C. P.) And as to interrogatories, see Osborne v. London Dock Co. 10 Ex. 698; Chester v. Wortley, 17 C. B. 410; see § 379, post.