or uttered the defamatory words, that they were understood in the sense alleged in the innuendo, that they referred to the plaintiff, and, if the occasion be one of qualified privilege, that they were published or uttered maliciously. In some cases also it is essential, in every case desirable, to prove special damage resulting from the words. It may further be necessary to prove that the plaintiff at the date of publication held some office or exercised some profession or trade, and that the words were spoken of him in the way of such office, profession, or trade. If money has been paid into court, the onus lies on the plaintiff of proving that the amount is insufficient. If the Statute of Limitations has been pleaded, the onus lies on the plaintiff (Wilby v. Henman, 2 Cr. & M. 658) of proving a publication of the libel within six years before action, or the utterance by the defendant of words actionable per se within two years, or that damage has within six years resulted from the utterance by the defendant of a slander not actionable per se. (See ante, p. 520.)

On the defendant, on the other hand, lies the onus of proving privilege, justification, or an accord and satisfaction. If he has pleaded a plea under Lord Campbell's Act, the onus lies on the defendant to prove that the libel was inserted without gross negligence, and that a full apology was inserted in proper type before action brought, or as soon as possible afterwards.

The plaintiff may also offer evidence in aggravation, the defendant in mitigation, of damages. (See ante, pp. 309, 312.) And defendant's counsel must consider the advisability of giving a notice under Order XXXVI. r. 37, post, p. 577. For the form of such a notice, see Precedent No. 68, post, p. 656.

Each party should be prepared with evidence not only to prove the issues which lie upon him, but also to rebut his adversary's case. It may be necessary to postpone the trial in order to secure the attendance of witnesses who are ill or absent abroad. (Turner v. Meryweather, 7 C. B. 251; 18 L. J. C. P. 155; Brown v. Murray, 4 D. & R. 830; M'Cauley v. Thorpe, 1 Chit. 685; 5 Madd. 19.) In other cases it may be necessary to apply for a commission abroad, or for the examination before trial of a witness who is dangerously ill or about to leave the country. (Order XXXVII. r. 5; Procter v. Tyler, 3 Times L. R. 282.) It is generally necessary to state on affidavit the general nature of the evidence which such witness is expected to give. (Barry v. Barclay, 15 C. B. N. S. 849.)

Counsel should next consider what documents will be required, and how, if the originals cannot be produced, they may be proved by secondary evidence. (See post, p. 563.) For this purpose he must carefully go through the notice to inspect and admit, and the notice

to produce, and advise on their sufficiency. He is sometimes also consulted as to the advisability of securing a special jury (Order XXXVI. r. 7; Roberts v. Brown, 6 C. & P. 757), or of applying to change the venue.

It is often convenient to copy the advice on evidence into the leader's brief, especially if any points of law are discussed in it, and cases cited.

Change of Venue.

The plaintiff has primâ facie the right to fix the place of trial; the defendant must therefore show a distinct preponderance of convenience to oust plaintiff of his right. Where the defendant resides is quite immaterial. (Per Quain, J., 1 Charley, 119; Bitt. 53; 60 L. T. Notes, 103.) Where the cause of action arose has now but little to do with the question. The defendant must prove that a trial in the place which he prefers will be less expensive and more convenient for the majority of witnesses on both sides. That it will be more convenient for defendant's witnesses is alone no ground for the application. (Wheatcroft v. Mousley, 11 C. B. 677.) But the defendant will be entitled to have the venue changed if he can show that there is no probability of a fair trial in the place the plaintiff has selected, e.g., if a local newspaper of extensive circulation has published unfair attacks on the defendant with reference to the subject-matter of the action. (Pybus v. Scudamore, Arn. 464; Walker v. Brogden, 17 C. B. N. S. 571.)

Trial.

In actions of slander or libel, the plaintiff usually states in his notice of trial that he desires to have the issues of fact tried by a judge with a jury. (Ord. XXXVI. r. 2.) If he does not, the defendant may signify his wish for a jury by giving notice within four days from the time of the service on him of the notice of trial, or within such extended time as a master may allow, or in his notice of trial, if he give one under rule 12 of the same Order. "And thereupon the same shall be so tried." It is always best to have a jury in these actions, and, as a rule, both parties wish for one. (See ante, p. 362.)

The plaintiff is always entitled to begin, even where the onus of proof lies on the defendant. (Carter v. Jones, 6 C. & P. 64; 1 M. & R. 281; Mercer v. Whall, 5 Q. B. 447, 462, 463; 14 L. J. Q. B. 267, 272.)

Proof of the Plaintiff's special Character.

Where the words are actionable only by reason of the plaintiff's holding an office or exercising a profession or trade, the plaintiff must prove that he held such office or exercised such profession or trade at the date of publication, and that the words complained of were spoken of him in that capacity. Sometimes the words themselves admit the plaintiff's special character, or it may be admitted on the pleadings; if so, it is, of course, unnecessary to give any evidence on the point. (Yrisarri v. Clement, 3 Bing. 432; 4 L. J. (Old S.) C. P. 128; 11 Moore, 308; 2 C. & P. 223.)

Strict proof of the plaintiff's special character is not, as a rule, required. Thus, to prove that a person holds a public office, it is not necessary to produce his written or sealed appointment thereto. (Berryman v. Wise, 4 T. R. 366; Cannell v. Curtis, 2 Bing. N. C. 228; 2 Scott, 379.) It is sufficient to show that he acted in that office, and it will be presumed that he acted legally. So, where the libel imputes to the plaintiff misconduct in his practice as a physician, surgeon, or solicitor, and does not call in question or deny his qualification to practise, he need only prove that he was acting in the particular professional capacity imputed to him at the time of the publication of the libel. (Smith v. Taylor, 1 B. & P. N. R. 196, 204; Rutherford v. Evans, 6 Bing. 451; 8 L. J. (Old S.) C. P. 86.) It is, as a rule, sufficient to call the plaintiff to say, "I am an M.R.C.S.," or "I am a barrister." But when the libel or slander imputes to a medical or legal practitioner that he is not properly qualified, and the professional qualification is again denied on the pleadings, the plaintiff should always be prepared to prove it, by producing his diploma or certificate, duly sealed or signed, and stamped, where a stamp is requisite. At Common Law there was no other way. (Moises v. Thornton, 8 T. R. 303; Collins v. Carnegie, 1 A. & E. 695; 3 N. & M. 703; Sparling v. Haddon, 9 Bing. 11; 2 Moo. & Scott, 14.)

But now the "Law List" is by the 23 & 24 Vict. c. 127, s. 22, made prima facie evidence that any one whose name appears therein as a solicitor is a solicitor duly certificated for the current year; and similarly, by the 21 & 22 Vict. c. 90, s. 27, the "Medical Register" is prima facie evidence that the persons specified therein are duly registered medical practitioners. But if it is known the plaintiff's qualification will be seriously challenged at the trial, it is safer not to rely solely on such primâ facie proof, but to produce all diplomas and certificates. If the plaintiff sues as a solicitor, and his name does not appear in the "Law List," that may be only because he has not

taken out his certificate for the present year; in which case he may still sue for a libel on him as solicitor. (Jones v. Stevens (1822), 11 Price, 235.) So, too, a medical man can sue for a libel on him professionally, although his name does not appear in the "Medical Register," if he can show by a certificate under the hand of the registrar, or in any other way, that he is duly qualified and entitled to be registered.

Proof of Publication.

The plaintiff must next prove that the defendant published the libel or spoke the slanderous words to some third person. As to what is a sufficient publication in law, see ante, c. VI. pp. 151-169. As to constructive publication by a servant or agent, see ante, pp. 411413. As to publication by telegram, see Williamson v. Freer, L. R. 9 C. P. 393; 43 L. J. C. P. 161; 22 W. R. 878; 30 L. T. 332; by postcard, Robinson v. Jones, 4 L. R. Ir. 391. The sale of each copy is a distinct publication. (R. v. Richard Carlile, 1 Chitty, 451; Duke of Brunswick v. Harmer, 14 Q. B. 185; R. v. Stanger, L. R. 6 Q. B. 352; 40 L. J. Q. B. 96; 19 W. R. 640.) Causing a libel to be printed be a primâ facie publication. (Baldwin v. Elphinston, 2 W. Bl. 1037.) But if the libel never reaches the hands of any one except the printers and compositors, this would perhaps in the present day be deemed insufficient. (Watts v. Fraser, 7 A. & E. 223; Lawless v. Anglo-Egyptian Cotton and Oil Co., L. R. 4 Q. B. 262; 10 B. & S. 226; 38 L. J. Q. B. 129; 17 W. R. 498.)

may

If the defendant write a libel, which is in some way subsequently published, this is, primâ facie at all events, a publication by the defendant. (Per Holt, C.J., in R. v. Beere, 12 Mod. 221; 1 Ld. Raym. 414.) A letter is published as soon as it is posted, provided it ever reaches the party to whom it is addressed, and this will be presumed if there be no evidence to the contrary. Thus, if a letter in the handwriting of the defendant be produced in court with the seal broken, and the proper postmarks outside, that is sufficient evidence of publication. (Warren v. Warren, 1 C. M. & R. 250; 4 Tyr. 850; Ward v. Smith, 6 Bing. 749; 4 M. & P. 595; 4 C. & P. 302; Shipley v. Todhunter, 7 C. & P. 680.) So, where a libel has appeared in print, and the manuscript from which it was printed is proved to be in the defendant's handwriting, this is primâ facie a publication by the defendant. It is not necessary to prove expressly that he directed or authorized the printing. (Per Lord Erskine in Burdett v. Abbot, 5 Dow, H. L. at p. 201; Bond v. Douglas, 7 C. & P. 626; Tarpley v.

Blabey, 2 Bing. N. C. 437; 7 C. & P. 395; R. v. Lorett, 9 C. & P. 462; Adams v. Kelly, Ry. & M. 157.)

ance.

Any one who has ever seen the defendant write (even though once only, Garrels v. Alexander, 4 Esp. 37), can be called to prove his handwriting. So can any one who has corresponded with the defendant, or seen letters which have arrived in answer to letters addressed to the defendant. Thus, a clerk in a merchant's office who has corresponded with the defendant on his master's behalf, may be called to prove the handwriting. (R. v. Slaney, 5 C. & P. 213.) The usual course is for the plaintiff's counsel merely to ask the witness, "Are you acquainted with the defendant's handwriting?" leaving it to defendant's counsel to cross-examine as to the extent of his acquaintSuch cross-examination will only weaken the force of his evidence, not destroy its admissibility. (Eagleton v. Kingston, 8 Ves. 473; Doe d. Mudd v. Suckermore, 5 A. & E. 730.) By sect. 27 of the C. L. P. Act, 1854, "comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by the 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." (See Jones v. Richards, 15 Q. B. D. 439.) But the evidence of experts must always be received with caution. In a recent case an expert in handwriting swore positively that the libel was in the handwriting of the Lord Mayor elect; but subsequently a young man came forward and acknowledged that he wrote it, and that Sir F. Truscott never had anything to do with the matter. (See also Seaman v. Netherclift, 1 C. P. D. 540; 45 L. J. C. P. 798; 24 W. R. 884; 34 L. T. 878; (C. A.) 2 C. P. D. 53; 46 L. J. C. P. 128; 25 W. R. 159; 35 L. T. 784.) If the defendant be present in court, he may, it seems, be then and there required to write something which the court and jury may compare with the document in dispute. (Doe d. Derine v. Wilson, 10 Moo. P. C. at p. 530.) So, too, letters not otherwise evidence in the cause, written by the defendant, and in which the plaintiff's name was spelt in a peculiar manner, were held admissible as evidence that the libel which contained the plaintiff's name spelt with the same peculiarity was written by the defendant. (Brookes v. Tichborne, 5 Ex. 929; 20 L. J. Ex. 69; 14 Jur. 1122.)

The Newspaper Libel and Registration Act, 1881, was passed to facilitate proof of publication of a libel contained in a newspaper. It established a "register of newspaper proprietors" to be kept at Somerset House, and to be open to the inspection of the public. (Ante, pp. 388-391.) Every printer and publisher of a newspaper is