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Action on the Statute

Part II. for corn destroyed to prevent exportation: but as the evidence is not very complex in any of of Hue and these cases, it is unnecessary to say more reCry. specting them.

CHAP VI.

General Observations.

OF THE EVIDENCE IN ACTIONS UPON THE CASE.

NDER this head might have been included

UNDE

the action of assumpsit; but having before had occasion to mention, at considerable length, the evidence required in that form of action, I shall confine the present chapter to those actions which are founded on torts; and which are generally understood to be intended, when an action is said to be on the case.

Some of these are founded in malice, as actions for slander and malicious prosecutions; others in negligence, as where a man, having a right to use his own property, exercises his right so carelessly as to injure his neighbour; and, a third class, on the direct invasion of incorporeal property.

In all these cases, the plaintiff is obliged to state the whole substance of his case in the declaration; and as he can only recover on the justice

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General Observa

tions.

justice and conscience of it, whatever will in Ch. Vt. equity and conscience, according to the circumstances of the case, bar the plaintiff's recovery, may be given in evidence by the defendant, on the general issue,' which is merely Vide 3 that he is not guilty of the premises where- Burr.1353 with he is charged. But in cases where the party justifies an act which is prima facie illegal, as the slander of another; or where an injury has in fact been committed, and there is no defence, but that of the remedy being barred by the statute of limitations; the defence must be specially pleaded.

On the plea of the general issue, the plaintiff must be prepared with evidence of all the facts stated in his declaration, and if the defendant plead the statute of limitations, the plaintiff must prove that the original cause of action accrued within the time of limitation, for this action cannot be revived as in the case of an assumpsit or debt.

SECTION I.

Actions founded in Malice or Fraud.

IN Slander, the plaintiff must prove all material allegations, and that the words were spoken by the defendant, as laid in the declaration; for words spoken in the third person will not

support

Slander.

* Vide Rex

v. Berry,

4

T. Rep. 217.

1 Barnes v

Holloway,

T. Rep.

150.

Guest v. Lloyd,

Bul. N. P.

6

• Rex v. Almon, Burr. 5 2686.

Part II. support a declaration for words spoken in the Slander. second;' nor words spoken by way of interrogation a charge of words spoken affirmatively.* Where special damage is the gist of the action, that also must be proved. But the mere statement of special damages, in a case of words actionable in themselves, does not make it necessary for the plaintiff to prove that he has in fact sustained such damage.❜ If a libel be the injury complained of, the publication must be shewn, either by proof that the defendant wrote and published it; or that, being a bookseller, it was sold in his shop, by himself or his servant; or, in case of a newspaper, that the paper was published to the world in the ordinary way,' and that the defendant is the printer, editor, or proprietor of it; which may be shewn by evidence that he gave a bond to the stamp • Rex v. office, for payment of the duties, and had occaTopham, 4 T. Rep. sionally applied there on the subject. In cases 7 Zenobio where the libel is in a foreign language, both v. Axtel, the original and translation must be set out in the declaration, and in addition to the usual evidence of the libel, the translation must be K. B. Sit- proved to be correct. The defendant, on the tings after Hil. 1803. general issue, may prove that he was an innocent publisher; as that he delivered the paper without knowing the contents; or that the Walter, publication is a true report of a trial at law," (1)

5 Rex v. Pearce, Peake's Cas. 75.

126.

6 T. Rep.

162.

Rex v. Peltier.

9 Vide Rex

v. Almon,

supra.

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Curry v.

Bos. & P.

523.

9

or

(1) In the above case of Curry v. Walter, the Court entertained some doubt whether the defence set up should not have been pleaded specially; and no judgment having been given,

that

Slander.

T Rex v.

8 T. Rep.

293.

2 Edmon

son v. Ste

Bul.N.P.8.

ton v. Hawkins, 1 T. Rep.

or copy of a report of the House of Com- Ch.VI.f.1. mons; or that he was giving a character of a servant; or his opinion of the circumstances of a tradesman' to a person who enquired of Wright, him, or the like; for this shews that the communication was confidential, and that there was no malice in his mind. But if it appear that the phenson, defendant has conducted himself with malice weatherstowards the plaintiff, this will form no defence. And therefore, where a master having turned away a servant, went to another person with whom the servant formerly lived, told such Dowson, person of his misconduct, and desired him not to give the servant a character; and then, in answer to an enquiry made by another person to whom the servant offered himself, made a charge of misconduct which he could not prove; and the Jury from this circumstance implied malice, and found a verdict for the plaintiff; the Court refused to set it aside.*

110.

3 Herver v.

B. N. P. 8.

+ Rogers
v. Clifton,

3 Bos. & P. 587.

The defendant may also on the general issue prove, in mitigation of damages, such facts and circumstances as shew a ground of 5 Knobel suspicion, not amounting to actual proof of v. Fuller, the guilt of the plaintiff; but if he contend cor.

Eyre, C. J.

at N. P.

Trin.

1797. M.S.

that doubt must be considered as still remaining. The Chief Sit. after Justice Eyre, at N. P. thought the general issue sufficient; and the principle upon which the Court decided that the action would not lie, and upon which the other cases above cited were determined, strongly supports his lordship's opinion. Till the point shall be settled, however, it will always, in such cases, be adviseable for the defendant to add a special plea to the general issue.

that

Part II. that the words, or libel, are true, then he must Malicious plead a special justification, the proof of which will lie upon him.'

Prosecutions.

• Under-
wood v.
Parks,
2 Stra.

2

1200.

Clayton

13. See

also Kirk

v. French, I Esp.

N. P. Cas.

81.

Morrison v. Kelly, I Blac. 385.

In actions for Malicious Prosecutions, the plaintiff must shew the prosecution commenced and ended, by proof of an examined copy of the record; or in case the prosecution were by v. Nelson, indictment at the sessions for a misdemeanor, Bul. N. P. the clerk of the peace may attend with the original record.' He must then shew that the defendant was the prosecutor of the indictment, by proof that he applied to a magistrate, (to prove which, all the proceedings before him should be produced and proved ;) or that he was otherwise personally active in the business; for if he merely acted as a justice of peace, though his name be on the back or the indictment as Girling- prosecutor, he is not liable to an action. The plaintiff should also be prepared to prove the 1 Vent.47. falsehood of the charge; and if the bill were found by the grand jury, he must either prove express malice in the defendant, or that there was not the least cause for the prosecution; for Roberts, if it appear from his evidence, or from that pro1 Salk. 14 duced by the defendant, that there was but a probable cause for the prosecution, that is a sufficient defence to the action. To increase the damages, the length of imprisonment, the expences of the plaintiff, and the circumstances of the defendant, are also proper subjects of proof. To counteract this evidence the defendant should be prepared to prove a pro

ton v.

Pitfield,

• Vide

Saville v.

I Lord

Ray 374

bable

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