right to amend once of course, the court may order an amendment before or upon the trial, or at any time thereafter. Prior to the Code of Procedure, a plaintiff was allowed to amend inducement after issue, where otherwise the right of action would have been barred by the statute of limitations. Plaintiff allowed to insert additional words, but not a new cause of action.3 Plaintiff allowed to insert a newly discovered cause of action. Defendant permitted to add an additional justification. 5 Amendments, too, seem to be allowed with great liberality in the courts in England; thus another count was allowed to be added after a rule for a new trial. On the trial the words charged were allowed to be amended, the substance of the allegation remaining the same." Plaintiff allowed to amend by alleging that the words were spoken of him in his character of auctioneer. Leave to plead a justification, after verdict, denied. Where the declaration alleged the publication

1 Code of Procedure, §§ 169, 172, 173.

Tobias v. Harland, I Wend. 93. Leave to add a new count granted (Conroe v. Conroe, 47 Penn. St. R. 198), but denied after right of action had been barred by statute of limitations. (Smith v. Smith, 45 Penn. St. Rep. 403.) An amendment is as of the commencement of the action. (Horton v. Banner, 6 Ky. [Bush], 596.) 3 Weston v. Worden, 19 Wend. 647. Plaintiff permitted on the trial to add a new cause of action. (Miles v. Van Horn, 17 Ind. 245.) Plaintiff not permitted to amend on trial by changing the action from libel to malicious prosecution. (Larkin v. Noonan, 19 Wis. 82.)

4 Williams v. Cooper, 1 Hill, 637. Leave to add a justification refused. (Waters v. Guthrie, 2 Bailey, 106.)

5 Graham v. Woodhull, I Caines R. 497. Defendant on trial allowed to strike out general issue and plead a justification. (Anon. I Hill [So. Car.] 251.)

Wyatt v. Cocks, 10 Moore, 504; and see Clarke v. Albert, 1 Gale, 358. The statutes as to amendments to be liberally construed. (Smith v. Knowelden, 9 Dowl. 40.)

Pater v. Baker, 3 C. B. 831; Foster v. Pointer, 9 Car. & P. 718; Saunders v. Bates, 1 Hurl. & N. 402; and see Lister v. McNeal, 12 Ind. 302.

8 Ramsdale v. Greenacre, I Fost. & F. 61.

Kirby v. Simpson, 3 Dowl. Pr. Cas. 791. Leave to add a plea of the statute of limitations refused. (Allensworth v. Coleman, 5 Dana, 315.) But granted. (Brick

of a libel contained in and being an article in a certain weekly printed paper called The Paul Pry, it was proved on the trial that the defendant gave to several persons to read a printed slip of paper containing the alleged libel, but it did not satisfactorily appear that such slip had been cut from The Paul Pry, the plaintiff was allowed to amend the record, without terms, by striking out the words in italics, and this course was approved by the court in banc. Where the words charged were, "S. is to be tried at the Old Bailey for," &c., and the proof was, "I have heard that S. is to be tried at the Old Bailey for," &c., the plaintiff had leave to amend on payment of costs. Where the words alleged were, "there have been many inquests held upon persons who have died because he attended them," and the proof was "Several have died that he (plaintiff) has attended, and inquests have been held on them," an amendment was allowed and approved in banc. The court refused an amendment where it was of opinion that the words as proved did not impute an actionable charge, and the court refused, on the trial, at the instance of the plaintiff, to strike out superfluous averments and innuendoes, which appeared to have been introduced to create a prejudice against the defendant,"

ett v. Davis, 21 Pick. 404.) Where the defense was that the words complained against were parts of two articles, which articles were fair comments, on demurrer the court held the plea defective, but permitted the defendant to amend by substituting words for articles, so as to read, which words were fair comments. (Morrow v. McGaver, 1 Ir. C. L. R. N. S. 579.)

1 Foster v. Pointer, 9 C. & P. 718, 722.

Smith v. Knowelden, 2 M. & Gr. 561.

Southee v. Denny, 1 Ex. 196.

• Camfield v. Bird, 3 C. & K. 56. An amendment will not be allowed, if the effect of it be to afford reasonable ground for demurrer. (Martyn v. Williams, I Hurl. & N. 817; Caulfield v. Whitworth, 18 Law Times, N. S. 527.)

5 Prudhomme v. Fraser, 1 M. & Rob. 435. Amendment allowed (Pater v. Baker, 3 C. B. 831; and see Huckle v. Reynolds, 7 C. B. N. S. 114; Saunders v. Bate, I

and the application was not made until after the libel was read to the jury.

Hurl. & N. 402; Ramsdale v. Greenacre, I Fost. & F. 61). Where the words alleged were "he was not sober," and the words proved were, he was "as drunk as a sow," and the latter words were relied on as evidence of malice, and as taking away the privilege of the occasion on which the words were spoken, the amendment was denied. (Sutton v. Plumridge, 16 Law Times, N. S. 741.) And where the words as laid in the declaration imputed a direct charge of felony, and the proof was that the words were to the effect that a report was in circulation that plaintiff had committed a felony, it was held to be a material variance, and leave to amend was refused. (Pearse v. Rogers, 2 Fost. & F. 137.)

41

CHAPTER XVI.

EVIDENCE FOR PLAINTIFF.

Proof of publication; of oral publication; of publication in writing; 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 - Defend ant'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,

Where the general issue, as well as special pleas admitting the publication are pleaded, the 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, I Blackf. 330; Wright v. Lindsay, 20 Ala 428; Whitaker v. Freeman, 1 Dev. 271 ; Doss v. Jones, 5 How. [Miss.] 158; Cheadle v. Buel, 6 Ham. 67; Vasseur v. Livingston, 13 N. Y. 256; Ayres v. Covell, 18 Barb. 264; 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 the 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 the defendant wrote or spoke such words or made such charge, nor shall, in case the 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

much 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. 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.'

§ 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 letter, without the oath of the person to whom the letter is addressed.3 Where the letter produced was addressed

Reports, with notes by Benjamin Rand, Boston, A. D. 1858.) 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, 1I Law Times, N. S. 541; 4 Fost. & F. 243.)

1 Stark. Ev. tit. Law and Fact. 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 the 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. 397.) 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, 36 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 word; were spoken in English, which language the witness did not understand. (Hurtert v. Weines, 27 Mich. 134.)

2 Shipley v. Todhunter, 7 C. & P. 680; Hitchon v. Best, 1 B. & B. 299; Rex v. Watson, I Camp. 215; Rex v. Johnson, 7 East, 65; Fletcher v. Braddyll, 3 Stark. Cas. 64; Rex v. Williams, 2 Camp. 505; Rex v. Girdwood, East P. C. 1116.

3 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.