was the author of a scandalous letter, which the defendant in his plea justified as true, the court allowed the plaintiff an inspection of the letter by certain witnesses, in order that he might be prepared to negative its being his handwriting.1

2

§ 271. In one case, in an action for libel, the court ordered the defendant to produce certain documents in his possession for the inspection of the plaintiff. This was disapproved of in a subsequent case,3 where an application for an order to inspect the manuscript of articles that had been published in a newspaper was denied. A motion to compel the defendants to declare to whom the defamatory matter was intended to apply was denied.+

§ 272. On the principle that before a party utters a slander he should be prepared to justify, it has been said that the courts will not give the defendant an inspection of documents in the possession of the plaintiff to enable the defendant to prepare a plea in justification; thus, where A. charged B. with forging an I O U, and B. sued A. in slander for uttering such charge, the court refused the application of the defendant for an inspection of the IO U, although he alleged that the IO U was in the possession of the plaintiff, that he (defendant) had reason to believe it was in reality a forgery, and that he could not safely plead without inspecting it. Where an order had been made in an action of libel, giving the defendant leave, under 14 & 15 Vict. ch. 99, § 6, to inspect the books of the plaintiff, a motion by the defendant to ex

1 Curtis v. Curtis, 3 M. & Sc. 819.

? Perrott v. Morris, 8 Irish Jurist, 334.

5

5

Giraud v. Beach, 3 E. D. Smith, 337.

Day v. Tuckett, 1 Bail Court Rep. 203; but see Browning v. Aylwin, 7 B. & C. 204, where an inspection was allowed.

tend the time to make the inspection was denied, on the ground that the order for inspection ought never to have been made and per curiam: A man who publishes a libel should be in a position to prove it, and it would be a monstrous thing if a man could publish a libel, imputing insolvency to a mercantile house, and then to come to this court and ask for an order to inspect the plaintiff's books, in the hope of being able to get up a case. If the defendant is a shareholder, he has other means of obtaining an inspection, and we can only regard him as a defendant in an action for libel.'

§ 273. In Massachusetts and in Maine, by statutes, a bill of particulars of the language which the plaintiff intends to prove may be ordered. These are cases where the precise words alleged to have been published were not set forth in the complaint (§ 329). In England, an order was made for a statement of the occasions upon which the words were published, and for a bill of particulars as to the defense. Where the declaration alleged as special damages, which was essential to the maintenance of the action, that certain persons had, in consequence of the alleged slander, refused her pecuniary assistance or their votes for her admission into a benevolent institution, an application by the defendant for particulars of the names of the persons to whom the publication was made, was denied, but interrogatories were allowed as to the names of the parties whose patronage plaintiff alleged she had lost."

1 Metro. Saloon Co. v. Hawkins, 4 Hurl. & Nor. 146; 1 Fost. & F. 413; see Steadman v. Arden, 15 M. & W. 587.

2 Clark v. Munsell, 6 Metc. 373; True v. Plumbey, 36 Maine (1 Heath), 466. Slator v. Slator, 8 Law Times, N. S. 856; and see Wicks v. MacNamara, 36 Law Jour, 419, Ex.; Early v. Smith, 12 Irish Com. Law Rep. p. xxxv of Appendix. 4 Wren v. Weild, Law Rep. 4 Q. B. 213; Jones v. Bewicke, Law Rep. 5 C. P. 32; Gourley v. Plimsoll, 8 Id. 362.

5 Wood v. Jones, I Fost. & F. 301.

§ 274. If the defendant does not answer, he admits the allegations of the complaint and the truth of the innuendoes. The plaintiff must issue a writ of inquiry, and have his damages assessed by a sheriff's jury, not by a referee. The court may order the writ of inquiry to be executed before a judge. On the execution of the writ, the plaintiff is not required to give any evidence of publication. The defendant, on the execution of the writ, will not be allowed to read parts of the publication not set forth in the complaint, in order to give a meaning to the words set forth in the complaint different from that alleged by the plaintiff; and semble, the defendant will not be allowed to give evidence of the truth of the language complained of.

274 a. In Macaulay v. Shackell,' Lord Eldon, on a

1 Code of Pro. §§ 168, 246; Tillotson v. Cheetham, 3 Johns. 56. After judgment by default, it is too late to object to the venue. (Wickham v. Baker, 4 Blackf. 517.)

? Voorhies' Code, p. 359, 10th ed.; and see Schewer v. Kleine, 15 La. Ann. 303. Casneau v. Bryant, 6 Duer, 668; and see Dillayev. Hart, 8 Abb. Pr. Rep. 394; Hays v. Berryman, 6 Bosw. 679.

4 Tripp v. Thomas, 3 B. & Cr. 427; 5 D. & R. 276; 1 Carr. 477. In this case it was also held, that although the plaintiff gives no evidence, the jury are not limited to giving nominal damage. It has been held that after assessment of damages on a writ of inquiry, the plaintiff cannot, without leave of the court, enter a nolle prosequi as to one count, and take judgment for the others. (Backus v. Richardson, 5 Johns. 476.)

* Lewis v. Few, Anthon, 75. Held not sufficient ground for staying a writ of inquiry that the House of Commons had voted the publication privileged. (Stockdale v. Hansard, 8 Dowl. 148.) In Beatson v. Skene (5 Hurl. & N. 839), an order was made permitting the defendant to inspect and take copies by photograph or otherwise, of the alleged libels. The cost of taking copies, in such a case, is to be borne by the party requiring them, but the costs of an order for inspection are in general costs in the cause. (Davey v. Pemberton, 11 C. B. N. S. 629.)

1 Bligh, N. S. 96. That case was affirmed on appeal in the House of Lords, when the chancellor said he had received an anonymous letter "assuring him that all the men of eminence at the bar thought this decision wrong, and that it is produced by the affection which the chancellor is supposed to have had for some Mr. Shackell." (See Campbell's Life of the Chancellors, X, ch. 213, p. 246.) In Brown v. Murray, 4 D. & R. 830, the court put off a trial to enable defendant to procure

bill in chancery, granted a commission for an examination of witnesses abroad for the purpose of proving a plea justifying the truth of an alleged libel, with an injunction till the return of the commission. It was considered an extraordinary stretch of his authority, but subsequently the common-law courts have adopted the practice, where the facts warrant it, of issuing a commission with a stay of proceedings. We remember one case, against the proprietor of the London Times newspaper, where the court stayed the proceedings for eighteen months, and gave the defendant an open commission. to take the depositions of all or any persons in any part of the world.

274 6. Where in an action for libel or slander a cause is compromised by the defendant agreeing to apologize and pay plaintiff's costs, as between attorney and client, the court will by rule enforce performance of the agreement,' unless defendant shows that he is unable to perform the stipulation on his part."

$275. The trial of the issues in an action for slander or libel must be by jury, unless a jury trial is waived, or the parties, by consent, try the issue before the court without a jury, or before a referee, or submit to an arbitration.3 In case of a trial by jury, the court may order

the attendance of witnesses from a foreign country to prove a justification, but imposed the terms that upon the trial the defendant should admit the publication of the alleged libel.

1 Riley v. Byrne, 2 B. & Ad. 779; Tardrew v. Brook, 5 B. & Ad. 880.

Clare v. Blakesley, 8 Dowl. 835.

Code of Pro. § 253. Instances of actions for slander and libel being referred. (Bonner v. McPhail, 31 Barb. 106; Rockwell v. Brown, 36 N. Y. 207; Perkins v. Mitchell, 31 Barb. 461; Sanford v. Bennett, 24 N. Y. 20.) Arbitration. (See Grosvenor v. Hunt, II How. Pr. Rep. 355; Grayson v. Meredith, 17 Ind. 357; Shephard v. Watrous, 3 Cai. 166.) An award about calling a butcher a bankrupt, was referred to a trial at law, because of the excessiveness of the damages given on the award. (Cooper v. The Butcher of Croyden, 3 Ch. R. 76.) In 2 Vern. R. 251, it is said there was another reason besides the excessive damages for setting aside

a struck jury, but will not do so in trials to be had in the city of New York. The court may refuse to try the cause if the trial will involve an attack upon the chastity of a third person not a party to the action. In case of a new trial, the retrial may be before the judge who presided on the first trial.3

276. It is supposed that in actions for slander or libel, the plaintiff has, in every case, the right to begin.* The right to begin is so far within the discretion of the court, that an erroneous ruling in respect to it will neither entitle to a new trial nor render the judgment voidable by appeal. But in England it has been held that an erroneous ruling as to the right to begin entitles the objecting party to a new trial. And so in Alabama."

the award. That reason was the relationship of the arbitrator to one of the parties. See an award that defendant should make submission and acknowledge himself sorry for all trespasses and words. (Cartwright v. Gilbert, 2 Brownl. 48.) As to amount of costs, where an action of slander was referred, and plaintiff recovered less than forty shillings damages. (Fream v. Sergeant, 8 Law Times, N. S.

467.)

1 Genet v. Mitchell, 4 Johns. 186;

Thomas v. Rumsey, 4 Johns. 482; Thomas v. Croswell, 4 Johns. 491; Nesmith v. Atlantic Mut. Ins. Co. 8 Abb. Pr. Rep. 423.

2

* Loughead v. Bartholomew, Wright, 90. As to right of judge to refuse to try a cause, see De Costa v. Jones, Cowp. 729; Squires v. Whisken, 3 Camp. 140; Ditchen v. Goldsmith, 4 Camp. 152; Brown v. Leeson, 2 H. Black. 43; Egerton v. Furzman, I C. & P. 613; Henken v. Guers, 2 Camp. 408.

Fry v. Bennett, 3 Bosw. 200; 28 N. Y. 329.

Littlejohn v. Greeley, 13 Abb. Pr. Rep. 41; see Wood v. Pringle, 1 Mo. & Rob. 277; Sawyer v. Hopkins, 9 Shep. 268; Huntington v. Conkey, 33 Barb. 218; Ayrault v. Chamberlain, 33 Barb. 233; Fountain v. West, 23 Iowa, 9; Carter v. Jones, 6 C. & P. 64; 1 M. & Rob. 281; Mercer v. Whall, 5 Q. B. 462; Hoare v. Dickson, 7 C. B. 164. Where there is a plea of justification only, defendant is to open and close. (Ransone v. Christian, 56 Ga. 351.)

5 Fry v. Bennett, 3 Bosw. 200; 28 N. Y. 329.

* Ashley v. Bates, 15 M. & W. 589; Booth v. Milnes, 15 M. & W. 669; 4 D. & L. 52; 15 Law Jour. Ex. 354; Doe v. Brayne, 17 Law Jour. C. P. 127; 5 C. B. 655; Hinkman v. Firnie, 3 M. & W. 505; but see Brandford v. Freeman, 5 Ex. 734; Burrell v. Nicholson, I M. & Rob. 304; Bird v. Higginson, 2 A. & E. 160.

Chamberlain v. Gaillard, 26 Ala. 504.