PART IV. The Newspapers, Printers, and Reading-rooms Act, 1869 CHAPTER XIL (32 & 33 Vict. c. 24), repealing many former enactments, has left certain statutory provisions for assisting the plaintiff in proving the publication by the defendant of the newspaper containing the libel. Interrogatories. 39 Geo. 3, c. 79, s. 29, (a) renders it obligatory (under a penalty) on every printer to keep, for six months' after the printing thereof, a copy of every paper printed by him, with the name of his employer written or printed thereon; which he is to show to any justice of the peace who, within the six months, may require to see it. 6 & 7 Will. 4, c. 76, s. 19, (b) provides for the discovery of the proprietors, printers, or publishers of newspapers, by filing a bill for discovery in equity. The former of these enactments (39 Geo. 3, c. 79, s. 29) is rendered nugatory, so far as private plaintiffs are concerned, by 9 & 10 Vict. c. 33, s. 1, which prohibits any proceedings for the penalty under that Act, except in the name of the law officers of the Crown. The power of compelling discovery of the publisher by filing a bill, is a costly and tedious process, and appears never to have been exercised;-at least we are unable to find any reported cases. The only other mode by which the plaintiff can obtain information from the defendant, as to the publication of the libel, is by administering interrogatories under the 51st section of the Common Law Procedure Act of 1854. But, before he can do this, he must obtain an order of the court or judge, which is by no means an easy task. In Tupling v. Ward (c) the Court of Exchequer held that it was unfair to submit questions which a party is clearly not bound to answer, the object being either to compel him to answer when not bound, or to refuse, and so create a prejudice against him. On this ground the court refused to allow interrogatories to be put to the defendant, as to whether he composed the article complained of? whether he knew who composed it? whether the name on the title-page was real or fictitious? whether he had been, or expected to be, indemnified? with other questions of a like kind. Two years later, the Court of Common Pleas rescinded an order made by Keating, J., allowing interrogatories to be put to the defendant, as to whether he spoke the slander (a) See the enactment set out, ante, p. 257. (b) See the section set out, ante, p. 259. (e) 6 H. & N. 749; 30 L. J. 222, Ex. See also Baker v. Lane (3 H. & C. 544; 34 L. J. 57, Ex.). PART IV. charged in the declaration, Erle, C.J., saying: "I do not mean to say that in no case will the court allow interroga- CHAPTER XIL tories in an action of slander; but, before I will consent to allow them, I must be satisfied that there are very peculiar circumstances of grievance and oppression to justify so novel a proceeding."(a) These cases were followed in the case of Edmunds v. Greenwood, (b) the court there holding that very special circumstances ought to appear before interrogatories, the express object of which was to make the defendant criminate himself, were allowed. There is, however, one instance of a plaintiff's obtaining a judge's order for such interrogatories, in an action of libel, and keeping it, notwithstanding an appeal to the court. The action was for sending to the Times newspaper a libellous extract from a letter. The defendant pleaded not guilty, and a justification. The affidavit in support of the summons was in the usual form, and did not state any special circumstances. Blackburn, J., allowed the following interrogatory, and others of a like nature: "Did you, on or about the 10th March, 1870, write, and send to the Times for publication, a letter signed 'Z.,' accompanied by what purported to be an extract from the letter from a Halifax merchant?" On the argument of a rule to set aside the order allowing these interrogatories, it appeared that the defendant had obtained a commission to Nova Scotia to examine witnesses, on an affidavit stating that, the extract was from a letter which he had received from a person in Nova Scotia, with whom he had since communicated, and on whose information, believing it to be true, he had pleaded a justification, in support of which it was necessary to examine witnesses in Nova Scotia. The court refused to interfere with the discretion of the judge, holding that the affidavit of the defendant, together with his plea of justification, were sufficiently special circumstances to take the case out of the ordinary rules.(c) nate defendant, But when the plaintiff has obtained the order, and where answers administered the interrogatories, he has a still more formid- tend to crimi able difficulty to encounter, viz., that of extorting answers from an unwilling defendant. If the defendant refuses to (a) Stern v. Sevastopulo (14 C. B. N. S. 737). (b) L. Rep. 4 C. P. 70; 19 L. T. N. S. 423; 38 L. J. 115, C. P.; 17 W. R. 142. (c) Inman v. Jenkins (L. Rep. 5 C. P. 738; 22 L. T. N. S. 659; 39 L. J. 258, C. P.; 18 W. R. 897. PART IV. answer, on the ground that the answers would tend to crimiCHAPTER XII. nate him, the court has no power to compel him. Inspection of documents by plaintiff. Commission to examine witnesses. Inspection by defendant. Thus, in Bowden v. Allen, (a) the defendant declined, or this ground, to say whether he was the publisher of the newspaper containing the libel; and Bramwell, B., dismissed a summons for further and better answers. On appeal, the Court of Common Pleas held that he was right in so doing. as sect. 19 of the 6 & 7 Will. 4, c. 76 (re-enacted by 32 & 33 Vict. c. 24) was confined to a bill of discovery in Chancery, and did not apply to interrogatories at common law, and the court had no power to supply the omission. An incorporated company, however, would probably be compelled to answer, as it could not be made criminally responsible for the publication. (b) If the defendant justifies the libel, and has in his possession documents which tend to disprove the truth of such justification, the plaintiff will be allowed inspection of them, under sect. 50 of the Common Law Procedure Act, 1854.(c) The defendant sometimes desires the assistance of the court to enable him to procure evidence material to the issues, which lie upon him to prove. If the libel relates to transactions which occurred abroad, the defendant is entitled to a commission for the examination of witnesses on the spot ;() but the court may make it a condition of the order, that the defendant state what he expects them to prove. (e) On an affidavit denying that he is the author, the court will allow him, his attorney, and witnesses (without naming them) to inspect and take fac-simile copies of the documents referred to in the declaration. (ƒ) The court will not, however, allow him to inspect books and papers in the custody of the plaintiff in order to establish the truth of the libel. Macaulay v. Shackell (g) is often quoted as an authority to the contrary; but Pollock, C.B., stated, in the case of the Metropolitan Saloon Omnibus Company v. Hawkins, (h) that that case merely decided that the defendant was entitled to a commission to examine witnesses at the (a) 39 L. J. 217, C. P. ; 22 L. T. N. S. 342; 18 W. R. 695. (d) Thorpe v. Macaulay (5 Madd. 230); Macaulay v. Shackell (2 Sim. & Str. 79); S. C., Dom. Proc. 1 Bl. N. S. 96; Metropolitan Saloon Omnibus Company v. Hawkins (4 H. & N. 146). (e) Barry v. Barclay (15 C. B. N. S. 849). (f) Davey v. Pemberton (11 C. B. N. S. 628). (g) Ubi supra. PART IV. place where the events happened. He added: "A person who ventures to publish a libel, or utter slander, should be in CHAPTER XII. a condition to justify his conduct, and not come to the court to ask for assistance to get up some proof." Martin, B., in the same case said: "Looking at the case of Macaulay v. Shackell, although it is difficult to collect from it any distinct proposition as to the right of a defendant in an action for libel, I am not prepared to say, that, in no case, would he be entitled to an inspection; but he would be bound to give the tribunal to which he applied, reason to believe that there was some particular document, which he could specify and put his hands upon, which would support his case; and neither a court of law or equity would give him an opportunity of searching the plaintiffs' books, in order to get up a defence." (a) CHAPTER XIII. PROCEEDINGS AT AND AFTER TRIAL OF ACTION. THE plaintiff, at the trial, is always entitled to begin, even Right to begin. where the onus of proving all the issues lies on the defendant. The practice upon this point remained for a long time unsettled; (b) but in the year 1833, a resolution was come to by the judges, that "In actions for libel, slander, and injuries to the person, the plaintiff shall begin, although the affirmative issue is on the defendant."(c) In Mercer v. Whall, Lord Denman said that this was not at all intended to introduce a new practice, but was limited to a declaration of that rule, which they never would have promulgated if they had not believed it to be law. (d) cation. The issue under the plea of not guilty is upon the plaintiff'; Proof of publiand the first step in proving it is to give prima facie evidence of the publication, by the defendant, of the libel. As to this, there is little to add to what has been said in chapter XI. upon the evidence sufficient to sustain an indictment. (e) Sect. 27 of the Common Law Procedure Act, 1854, Comparison of hand writing. provides that "comparison of a disputed writing with any (a) 4 H. & N. 150, 151. (b) Cooper v. Wakley (3 C. & P. 474; 1 M. & M. 248); Cotton v. James (3 C. & P. 505, and 1 M. & M. 278, where see a learned note by the reporter). (c) Carter v. Jones (6 C. & P. 64; 1 M. & R. 281). (d) 5 Q. B. 463. (e) Vile ante, pp. 505-507, 517-521. PART IV. writing proved to the satisfaction of the judge to be CHAPTER XIII. genuine, shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute." Admission of defendant. Where libel is lost. Publication may be proved by the admission of the defendant; but an admission of writing the libel is no evidence of publishing; and an admission that the defendant was the editor of a periodical at a certain date, is not evidence to connect him with a libel published in that periodical subsequently to that date. (a) If the libel is lost, secondary evidence may be given to connect the defendant with its publication. Thus, in the case of Johnson v. Hudson and Morgan, (b) where the libel complained of was a song, which had been published by singing it in the street. The copy which was sung had been destroyed, but it appeared that it had been sung from a printed paper taken from the defendant Hudson's shop, from a parcel containing about 300 copies. The person who sang it swore that it corresponded with a printed song which was.produced, and which had Morgan's name on it as printer; and one of Morgan's journeymen swore that the printed song produced, corresponded with that which Morgan had printed and delivered to Hudson. This was held sufficient secondary evidence to connect Morgan with the libel. So, in the case of Gathercole v. Miall, (d) after proof that a newspaper had been left at a literary institution, and had been removed without authority, and was believed to have been lost or destroyed, secondary evidence was admitted to identify it with the paper containing the libel. But in this case the evidence was offered, not to connect the defendant with the publication of that particular copy, but to show that the libel had obtained an extensive circulation. Evidence that the libel was in the handwriting of the daughter of the defendant, who usually wrote his letters of business, was held to be no evidence of publication by the defendant, in the absence of evidence to show that it was written by his procurement; and it was held that the daughter could not be called to say by whose authority she wrote it, as it might criminate her. (e) This latter proposition, however, is not law now. The daughter would be obliged to take the oath; but, when the question was put to (a) The Seven Bishops case (4 St. Tr. 300); Macleod v. Wakley (3 C. & P. 311). (b) 7 A. & E. 233, in notis. (c) 15 M. & W. 319. (e) Harding v. Greening ( 1 Moore, 479). |