
    Samuel Woodburn v. Robert Miller.
    
      “A report has gone abroad, through the instrumentality of S. W., stating that R. M. had a load or parcel of falsely packed or plated cotton bales ; which report is a direct falsehood.” This, printed and published, with malice, was a libel.
    A copy of the newspaper in which a libel was published, with proof of defendant’s acknowledgment that lie had. handed it to the Editor for insertion, was proper evidence of publication.
    Defendant, in libel, had charged the plaintiff with having falsely accused him of crime. On trial, defendant gave proof, in mitigation, of the falsehood of the accusation; plaintiff was entitled to reply with evidence of its truth.
    Before Richardson, J., at Chester, Spring Term, 1840.
    Special action for malicious publication of a libel in the “ Times” newspaper of June 8, 1838. The publication was as follows;
    “ A little caution. A report has gone abroad, through the instrumentality of Samuel Woodburn, stating that Robert Miller, of Chester district, had in Columbia, on the 16 th of February last, a load or parcel of falsely packed or plated cotton bales ; which report is a direct falsehood. Said Miller had not a single hale of cotton in Columbia, at or near that date, of any description whatever. Meddlers will take care how they distribute falsehoods, lest they meet with difficulties in the way.”
    The evidence of publication was the printed paper, and proof of the defendant’s acknowledgment that he had handed it to the editor at Columbia, with directions to give it three insertions in the “ Times” and “ Telescope.” The defendant objected to this, as not the best evidence, and demanded the production of the original manuscript; but the exception was overruled.
    The defendant then moved for a nonsuit, because the publication was no libel. Motion refused.
    Evidence being adduced, in defence, that Woodburn had made the charge of false packing, and that it was false, the plaintiff, in reply, offered proof of circumstances -to substantiate the accusation; which was excepted to by the defendant, but admitted.
    The jury were charged that the publication was a libel in terms: that the question for them was, whether defendant had published it, and whether he had done so maliciously, and not in self-defence ?
    The defendant appealed by motion for nonsuit, and failing that, for a new trial.
   Gima, per Eyans, J.

I propose to consider and decide these questions:

1. Was this a libel?

2. Was the evidence sufficient to charge the defendant with the publication of it?

3. Was it admissible for the plaintiff, in reply, to show that what he had stated of the defendant was true ?

There are other grounds taken in the notice of appeal but it is not thought that they are of such doubtful character as to require any opinion of this Court upon them.

1. The plain and obvious meaning of this publication is, that the plaintiff had fabricated and circulated a falsehood about the defendant. Such words, if spoken, would not be actionable; but, according to all the authorities, if printed or written, they would be. (Starkie on Libel, 155; 2 Wilson, 403; Fonville v. McNease, Dudley R. 303; State v. Farley, 4 McCord, 117.)

2. The printing of the libel was a publication; and the only question on this part of the case was, did the defendant procure it to be published in the newspaper ? As a general rule, it may be laid down, that any fact may be proved by the admission of the party to be charged by it, except those few cases in which the law requires other evidence. If the defendant, after reading the publication in the newspaper, or hearing it read, had said, “ I wrote it and caused it to be published in the Telescope, or Times,” could any evidence be more satisfactory of the fact of publication % If so, then it follows that the production of the original manuscript was 'not, as is contended, indispensable in this case. The defendant’s admissions are not as explicit as in the case above stated, but they were evidence of the fact, and, as the result has proved, satisfactory evidence to the jury, that the libellous paragraph in the newspaper was published by the defendant. The general rule is, that a witness shall not be allowed to speak of the contents of a written instrument, because the writing itself is better evidence than the witness’ recollection. That was the objection in the cases quoted and relied on in the argument. (Adams v. Kelly, 21 Eng. C. L. Rep. 403.) But there is nothing in that case at variance with the principles laid down in this.

See 9 Rich. 314; 4 Rich. 258; 1 Rich. 187; Dud. 311; 4 McC. 354; 1 McC. 525 ; 1 N. & McC. 422 ; 2 Tread. 809, Appendix. An.

3. To decide the third ground, it is scarcely necessary to do more than state the facts. The defendant, in mitigation, went into evidence that the plaintiff had propagated the story of his having sold cotton, falsely packed, in Columbia. To this the plaintiff replied by proving the truth of the facts which he had stated, and the information he had received from Scott on the subject. This was, as the presiding judge reports, strictly in reply to the defendant’s evidence. The motions are dismissed.

Gantt, Richardson, Earle and Butler, JJ., concurred. 
      
       2 Sp. 79, 638; 5 Strob. 41. An.
      
     