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Nos. 5, 6.

Toogood v. Spyring; Hemmings v. Gasson. — Notes.

Mr. Newell is of opinion that repetitions may be proved for the mere purpose of showing malicc. (Defamation, p. 349.) He cites Hinkle v. Davenport, 38 Iowa, 355; Commonwealth v. Damon, 136 Massachusetts, 448; Behee v. Mo. Pac. R. Co. 71 Texas, 424, (even words subsequent to the bringing of the action), Bassell v. Elmore, 48 New York, 561; Gribble v. Pioneer Press Co., 34 Minnesota, 342.

Mr. Townshend is of the same opinion (Slander and Libel, sect. 394), citing also Mix v. Woodward, 12 Connecticut, 262; Smith v. Wyman, 4 Shepley (Maine), 13; Miller v. Kerr, 2 McCord (So. Car.), 285: Hansbrough v. Stinnett, 25 Grattan (Virginia), 495; Saunders v. Baxter, 6 Heiskell (Tennessee), 369; Rea v. Harrington, 58 Vermont, 181; but he admits that as to words subsequent to suit the authorities are in conflict. Citing Carter v. McDowell, Wright (Ohio), 100; M'Donald v. Murchison, 1 Devereux Law (No. Car.), 7; Howell v. Cheatham, Cooke (Tennessee), 247; Teagle v. Deboy, 8 Blackford (Indiana), 134; Elliott v. Boyles, 31 Pennsylvania State, 65; State v. Jeandell, 5 Harrington (Delaware), 475; Caranaugh v. Austin, 42 Vermont, 576; Taylor v. Moran, 4 Metcalfe (Kentucky), 127.

Where words actionable in themselves, and not alleged, are shown to prove malice, the jury must be cautioned not to increase damages on their account. Letton v. Young, 2 Metcalfe (Kentucky), 558; Scott v. McKinnish, 15 Alabama, 662; Burson v. Edwards, 1 Carter (Indiana), 164.

On the other hand it has been held that the damages may thus be enhanced, Bassell y. Elmore, 48 New York, 561; Gribble v. Pioneer Press Co., 34 Minnesota, 342; Jean v. Hennessey, 69 Iowa, 373.

Evidence of a charge of a different nature and at a different time from that alleged is inadmissible for any purpose, Howard v. Sexton, 4 New York, 157. In Upton v. Hume, 24 Oregon, 420; 41 Am. St. Rep. 863, it was said: “Upon this question the authorities are in conflict, but in our opinion, the better rule seems to be that where the subsequent words or publication im. pute the same crime, or may fairly be considered as a renewal of the original charge, they may be given in evidence, as tending to show express malice, and to enhance the damages : Leonard v. Pope, 27 Mich. 145; but that evidence cannot be given of actionable words spoken or published on another occasion, and charging a separate and distinct crime from that charged in the complaint, for the purpose of showing malice, or for any other purpose, for the reason, as stated by Parker, C. J., that this is a different calumny for which the plaintiff has a right to his action, and though it may tend to prove malice as to the first words, so also will it necessarily go to enhance the damages, for no jury can say how much or how little of the damages were given on account of this second charge. Bodwell v. Swan, 3 Pick. 376. To the same effect are Root v. Lowndes, 6 Hill, 518; 41 Am. Dec. 762; Howard v. Sexton, 4 N. Y. 157 ; Frazier v. McCloskey, 60 N. Y. 337; 19 Am. Rep. 193; Distin v. Rose, 69 N. Y. 122 ; Barr v. Hack, 46 Iowa, 308. This is recognized as the better rule by Mr. Townshend in his work on Libel and Slander, section 392; and in a note to Odgers on Libel and Slander, at page 271, Mr. Bigelow, a writer of recognized learning and ability, after a careful review of the authorities in this country, reaches the conclusion that: . By the better

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authorities evidence of the publication of defamation upon the plaintiff other in substance than that sued for is not admissible on grounds of policy.' The distinction between the admissibility as evidence of charges of a nature different from those in suit and the repetition of the charges made in the complaint seems to be put upon the ground that a repetition of the libel or slander and the original offence may be practically treated as one wrong, and as to the repetitions used in evidence, all barred by the one judgment: Leonard v. Pope, 27 Mich. 145; Root v. Lowndes, 6 Hill, 518; 41 Am. Dec. 762; and Frazier v. McCloskey, 60 N. Y. 337; 19 Am. Rep. 193, which obviously could not be true of the publication of a different charge. The repetitions made use of in evidence in a particular trial are treated as barred by the judgment, because the jury are presumed to have considered them in estimating the damages for the original publication. If however charges of a different nature are admitted in evidence for the purpose of showing animus — and they certainly could not be competent for any other purpose — the jury may indeed be instructed that they must not give damages therefor, yet as has been remarked, such instruction will be wasted upon the average, and perhaps upon a highly cultivated jury. Root v. Lowndes, 6 Hill, 518; 41 Am. Dec. 762. For this reason it is thought hest to hold that such evidence is not admissible for any purpose.'”

SECTION IV. Pleadings and Evidence in support of

Action.

No. 7. - ZENOBIO v.' AXTELL.

(K. B. 1795.)

No. 8. — COOK v. COX.

(K. B. 1814.)

RULE.

Both in libel and slander the actual words used must be set out in the pleadings or the particulars, and proved.

Zenobio V. Axtell.

6 T. R. 162-163 (s. C. 3 R. R. 142).

Defamation. Libel. Pleading. In an action for a libel written in a foreign language, the plaintiff [162] must set forth the libel in the original; and if he only set out a translation of it, the Court will arrest the judgment.

No. 7. — Zenobio v. Axtell, 6 T. R. 162, 163.

This was an action for a libel. The declaration contained three counts; the defendant suffered judgment to go by default; and after the plaintiff had instituted a writ of inquiry, upon which the jury gave £100 damages generally, the defendant moved in arrest of judgment, for the insufficiency of the third count, which was as follows; that the defendant, envying the happy state and condition of the plaintiff, and further contriving and maliciously intending wrongfully and unjustly to injure and prejudice the plaintiff in his said good name, fame, credit, and reputation, and to bring him into public scandal, disesteem, and disgrace, on, &c., at, &c., falsely and maliciously, wilfully, wrongfully, and designedly, published and caused to be published a certain other false, scandalous, malicious, defamatory, and opprobrious libel, of and concerning the said plaintiff, in the French language, in a certain newspaper, commonly called and known by the name of Courier de Londres, and which said false, scandalous, malicious, defamatory, and opprobrious libel is according to the purport and effect following in the English language ; that is to say, The late famous Bishop of Autun, to the great satisfaction of all honest men, has just received an order to quit England: the same compliment has been paid to an adventurer, a great gambler, who calls himself the Count Zenobio ;” by means of the publishing of which said false, &c., the plaintiff is greatly injured, &c.

Wathen moved to arrest the judgment, on account of the insufficiency of the third count, to which he made three objections: 1st. That the original paper, as written in the French language,

should have been set out in this count; 2dly, That [* 163] * the publication itself was not libellous; and 3dly, That

it was not charged with sufficient certainty to relate to the plaintiff.

Reader, in answer to the first objection, said that though in cases of this sort the libel was usually set out in the language in which it was written, it was not absolutely necessary, it being sufficient to set forth the translation ; and that if it were not properly translated, the defendant might take advantage of it on the trial, since in such a case he could not be said to have written the libel imputed to him.

Lord KENYON, C. J. It is unnecessary to argue the other points, if this objection be fatal; and that this objection must prevail is evident from the uniform current of precedents, in all of which

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No. 8. — Cook v. Cox, 3 M. & S. 110.

the original is set forth. The plaintiff should have set out the original words, and then have translated them, showing their application to him.

But the Court gave the plaintiff leave to amend his declaration, on payment of costs.

Cook v. Cox.

3 Maule & Selwyn, 110-117 (s. c. 15 R. R. 432).

Defamation. Slander. Pleading. In a declaration for slander of plaintiff in his trade, a count alleging that [110] the defendant, in a certain discourse in the presence and hearing of divers subjects, falsely and maliciously charged and asserted and accused plaintiff of being in insolvent circumstances, and stating special damage, but without setting out the words, is ill, and if it be joined with other counts, which set out the words, and a general verdict given, the Court will arrest the judgment.

Slander. The plaintiff declares that whereas before and at the time of speaking and publishing the defamatory words by the defendant as hereinafter mentioned, he (the plaintiff) carried on the business of a baker, and had not been suspected to be insolvent, or unable to pay his just debts, or likely to become a bankrupt, per quod he had obtained the good opinion of his neighbours, &c., and was daily and honestly acquiring in the way of his trade great gains, yet the defendant, well knowing, &c., in a certain discourse which the defendant had with the plaintiff, in the presence and hearing of divers subjects, falsely and maliciously spoke and published to, and of, and concerning the plaintiff, in the way of his trade and business, these false, &c., words, “ You owe several millers money, and they are at your house every day for money, and you are not worth a penny.” — Second count; for speaking these words: “You are not worth a penny.” — Third count; that the defendant, in a certain other discourse, &c., in the presence and hearing of the said last-mentioned subjects, falsely and maliciously charged, and asserted, and accused the plaintiff of being in bad and insolvent circumstances. By means of committing which said grievances by the defendant, the plaintiff hath been greatly injured in his trade and business, and divers subjects, to whom the solvency and good circumstances of the plaintiff were unknown, have suspected the plaintiff to be insolvent, and unable to pay his just debts, and likely to be a bankrupt, and have

No. 8. — Cook v. Cox, 3 M. & S. 111, 112.

(* 111] refused to have any * transaction in the way of business,

or otherwise, with the plaintiff, and in particular one of the said subjects, to wit, R. P., who used to sell and deliver to the plaintiff goods in the way of his trade, hath, ever since the committing of the said grievances by the defendant, wholly refused, and still doth refuse to deliver any goods to the plaintiff on credit, and for want of such goods the plaintiff hath been injured in the way of his trade, &c. Plea not guilty.

After a general verdict for the plaintiff upon all the counts, with 40s. damages, at the last assizes for Devon, it was moved in Easter term, by Gaselee, in arrest of judgment, that the words ought to have been set forth in the last count, and that for this defect the count was too general, and uncertain.

Gifford, on a former day in this term, showed cause, and cited 1 Ventr. 264. Anon., see also 1 Show. 282, Com. Dig., Action upon the Case for Defamation, (D). 4), and the language of Lord HARDWICKE in Nelson v. Dixie, Cas. temp. Hardw. 305, in support of this general mode of declaring. And he further contended, that supposing this would have been bad upon demurrer, yet here it was cured by the verdict; and he referred to Serjt. Williams's note, 1 Saund. 228, for the rule “ that where there is any omission in pleading which would have been fatal on demurrer, if the issue joined be such as necessarily required on the trial proof of the facts so omitted, and without which it is not to be presumed that either the Judge would direct the jury to give, or the jury would have given the verdict, such omission is cured by the verdict by the

common law.” Also Com. Dig., Action on the Case for [*112] * Defamation, (D. 30). “Any words by which the party has

a special damage are actionable.” And here the plaintiff has alleged a special damage; and after verdict it must be taken that such damage was proved, and that it was also proved that the defendant spoke words which amounted to a charge of insolvency, for so in substance the declaration alleges; and unless that had been proved it is not to be presumed that either the Judge would have directed, or the jury would have found the verdict. Thus in Ward v. Harris, 2 Bos. & P. 265, the generality of the declaration was held to be cured by the verdict; but otherwise in Andrews v. Whitehead, 13 East, 102, where objection was taken on special demurrer.

Pell, Serjt., and Gaselee, contra, argued that the declaration ought

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