
    Alexander McLaughlin vs. John Russell.
    Where a person has admitted that he was the author of a libel in a certain newspaper any other newspaper of the same impression may be read to the jury, and is not secondary evidence.
    in actions of libel, where the libel is ambiguous, witnesses who know the parties and circumstances, may be called to state their opinion and judgment as to the person intended.
    This is a Writ or Error to the Court of Common Pleas of Columbiana County.
    The original action was Case, for Libel.
    A verdict and judgment were rendered in the Common Pleas for Russell, to reverse which this suit is brought.
    The declaration contains three counts.
    The first count, after the usual formula, alleges, ££ that before the committing of the grievances hereinafter mentioned, the said plaintiff had written and caused to be published in a certain newspaper dated August 13, 1845, and called ££ American Patriot,” printed and published in Wellsville, in the county and State aforesaid, a certain article or communication signed £ J,’ of and concerning certain articles or communications before that time, to wit, before' said 13th of August, published in the newspaper aforesaid, signed £ Alexander McLaughlin,’ and reputed to have been written by the said defendant-: Said article or communication of the plaintiff, signed ‘ J,’ as aforesaid, being .of an innocent and inoffensive character, and written and published from good motives, and for justifiable ends; yet the defendant well knowing the premises, but contriving and wickedly and maliciously intending to injure the plaintiff, and to bring him into public scandal and disgrace, heretofore, to wit, the 20th day of August, 1845, at Columbiana county aforesaid, falsely, wickedly and maliciously, did write, compose, and publish in a certain newspaper called “ American Patriot,’ published at Wellsville, in Columbiana county, Ohio, on said 20th day of August, 1845, of, concerning, and against the plaintiff, a certain false, slanderous, malicious, and defamatory libel, containing among other things, the following false, scandalous, malicious, defamatory 'and libellous matters, of, and concerning, the plaintiff, that is to say — ” Then follows the article signed “ Alexander McLaughlin,” set forth with proper innuendoes.
    The second and third counts are as follows: “ And the defendant, further contriving, did cause and procure to be written, composed, and published in the newspaper £ American Patriot,’ in said first count as aforesaid, published in the place in said count, as aforesaid, and dated the 20th day of August, 1845, a ■certain other false, scandalous, malicious and defamatory libel, against and concerning the plaintiff, in one part of which said libel there was and is contained the following false, scandalous, malicious, defamatory, and libellous matters, of and concerning the plaintiff, that is to say — ” &c.
    . 1. On the trial of this cause the plaintiff, by his counsel, called witness, Alexander McBain, who testified that he was editor and publisher of the American Patriot, a newspaper published in the town of. Wellsville. That an article signed £ J,’ in manuscript, was brought to his office, to which was appended a note, requesting the publication in said paper of the article £ J,’ and that on no consideration should he disclose the author’s name: which note was signed J. Russell, and he believes it to have been written by the plaintiff. ' •
    That said article J, was published in said newspaper, and is marked A, of the date of the 13th of August, 1845.
    That afterwards the article £ B,’ signed A. McLaughlin, declared on, was published on the 20th of August, 1845, in said paper.
    
      That only one article signed J, and one reply to the same, was published in said paper. That from three to five hundred impressions of said article, being the circulation of said paper, were published.
    The plaintiff then called Henry Paul, a witness, and asked him the following question, which was excepted to by the defendant, and the objection overruled and the question put:
    What did you hear McLaughlin say, if any thing, as to who was the writer of the article J ?
    The said witness then stated that at an interview with the defendant, he, the defendant, stated that he had found out that the article J. was written by the plaintiff, and then read from a newspaper which he had in his possession, the defendant’s answer to the article'J. And from the conversation the witness understood the article of defendant to relate to the plaintiff.
    McLaughlin said that Mr. Russell was the man who wrote the article J, and that he wrote the reply to it, which was then read from a newspaper in McLaughlin’s possession. The plaintiff’s counsel then produced a newspaper and placed it in the hands of the witness and asked him to read the article signed ‘ Alexander MaLaughlin,’ and say whether it was the same that had been read to him by the defendant.
    To which the defendant’s counsel objected, unless it be proven that the newspaper exhibited to the witness was the same identical paper from which the defendant read to the witness, or that notice was given defendant to produce that paper —or proof of its loss —and insisted that secondary evidence could not be admitted.
    The Court overruled the objection, and the witness being asked to look at the article signed ‘ Alexander McLaughlin,’ said that “ I believe it is the very same article.”
    To which rulings the defendant excepted.
    
      2. Be it remembered that on the trial of this cause, after Henry Paul had testified, the plaintiff, to support the issue upon his part, gave evidence that defendant carried to the office of the American Patriot, a communication in manuscript, for publication; that the said manuscript is lost or destroyed. The ’ editor and publisher was then called up and gave evidence as ■ follows : “ I made an alteration in the article which I did not suppose materially altered the meaning of the article, and published it in the American Patriot of August 20, 1847; that an edition of between three and four hundred was printed and circulated.” The plaintiff then offered in evidence the American Patriot of August 20, 1847, containing the alleged libel, to which the defendant objected. Objection overruled and paper admitted; to which decision defendant excepts.
    The plaintiff, in further support of the issue upon his part, offered to prove, by witnesses on the stand, as follows; that they were acquainted with the parties, that they had read the said publication, and that from their knowledge aforesaid, and from reading the alleged libel, they understood and believed that the plaintiff was the person meant and intended in said libel as the “ Mr. J ” against and concerning whom it was published — to the admission of which defendant objected. Objection overruled — evidence admitted. Plaintiff excepts.
    To which said rulings the defendant excepts, and his bill of exceptions are here allowed him, and the same are ordered to be made part of the record.
    The errors assigned are,
    1. That the declaration is insufficient.
    2. That a number of the Patriot was improperly admitted.
    3. That the Court erred in admitting a witness to prove who was intended to be referred to in the libel.
    4. Other errors.
    
      William K. Upham, Umstaeter Stanton and C. M. Aten, for Plaintiff in Error,
    cited the following authorities :
    
      Tarpley v. Blabey, 2 Bing. N. C. 435; Cooke’s Law of Def. 92, 93 ; Stark on Ev. part 4,861; 2Greenl. Ev. 337 ; Fisher v. Clement, 10 Barn. & Cress. Rep. 472; Haire v. Wilson, 9 Barn. & Cress, Rep. 643; 13 Eng. Com. L. 393 ; Van Vich-
    
      
      ten v. Hopkins, 5 Johns, Rep. 211; Gibson v. Williams, 4 Wend. Rep. 320; Stockley v. Clement, 4 Bing. Rep. 162; 2 Hill’s Rep. 507 ; 1 Stark, on SI. 328, 350; 3 Wend. Rep. 394; Miller v. Maxwell, 16 Wend. Rep. 91; Goldstein v. Foss, 4 Bing. Rep. 489; 16 Wend. Rep. 1.
    
      C. L. Vallandigham, for Defendant in Error,
    cited the following authorities:
    
      Nichols v. Packard, 16 Verm. Rep. 83 ; Croswell v. Weed, 25 Wend. Rep. 621 ; Bourke v. Warren, 12 Eng. Com. L. Rep, .140; Tarpley v. Blabey, 29 Eng. Com. L. Rep. 387; 2 Stark, on SI. 50 ; 2 Stark, on Ev. 460 ; Cooke on Def. 146 ; 2 Greenl. Ev. 394; Bourke v. Warren, 12 Eng. Com. L. Rep. 138; Commonwealth v. Buckingham, Thatcher’s Crim. Cases, 29 ; Haywood v. Foster, 16 Ohio Rep. 88. ■
   Birchard, C. J.

The objection taken to the declaration is, that it does not show upon its face that the libel was upon Russell. This is a mistake. The declaration avers that the publication was of, concerning and against the plaintiff; that defendant published, &c., the false-, scandalous, malicious, defamatory and libellous matters of and concerning the plaintiff, that is to say, &c., setting forth the libel, with inuendoes, averring that certain words meant the plaintiff. The words of the libel were actionable and were alleged to have been published of the plaintiff. ' The particular words said to have been intended to indicate him are referred to, and averred to have meant him. This was sufficient. It would have been good on demurrer, and is clearly so after verdict.

In support of the second assignment, it is urged that there should have been proof that the paper offered in evidence was the same one used by McLaughlin to the witness, or that its loss should have been accounted for. It is to be observed in reference to this objection, that the proof was that several hundred sheets of the impression containing the libel, had been struck off, that this paper offered in evidence, was one' of the impressions, and identical with that read to the witness by McLaughlin. The objection that this paper was but secondary evidence, is not founded upon correct premises. It was no more secondary in its nature, than would be one duplicate of one original contract, secondary evidence to the other. Any one. number of the entire impression, was as much an original as any other number. There is no reason why any difference should be made between the numerous.sheets of the same impression. All must of necessity be alike.

Again, the objection that the published article had been changed in an immaterial matter from the manuscript, should not have excluded it from' the jury. The witness Paul stated that McLaughlin read it to him from the newspaper, stating that he was the writer. This was evidence from which the jury might have found him, the writer, against the evidence of the editor, and thus sustain the first count of the declaration. Or they might infer from this acknowledgment, that he authorized or procured the editor to make the immaterial alteration, and so sustain the allegation of the other counts, that he caused and procured the libel to be written, &c. ■ The evidence was competent, and properly admitted. It tended to support the declaration. Whether it was sufficient or not was for the jury to determine. It was for them to say whether the editor’s statement, or the statement of Paul, was to be received as truth. The only remaining inquiry is, whether witnesses may be Called to prove the party intended and meant, by an ambiguous libel." In this case the defamation was directed against Russell by the name'of J. The substance of the averment is, that the writer by J. meant the plaintiff Russell. The colloquium, specific averments and innuendos, are all of them sufficient, if true, to point to the meaning of the writer and leave no doubt upon the mind as to the party intended to be defamed. But how shall the Court and jury ascertain the truth or falsity of them? The defendant pleads not guilty. He would not admit them. Must a slanderer escape punishment because he has had the ingenuity to so compose a sladerous article that strangers would not know whom he intended to vilify, while at the same time his victim is so referred to, that none of his would mistake the application ? The rule contended for, would work this result. Fortunately that rule is as illy sustained by the authorities as by right reason.

Starkie says the colloquium and other averments which connect the libel with the plaintiff, must be proved, and that it is usually shown by the testimony of one or more witnesses who knew the parties and circumstances, and who state their opinion and judgment as to the intention of the defendant, to apply his words or libel to the parties or circumstances as alleged. It is sufficient if the witness in the first instance, state his general belief and opinion as to the defendant’s meaning, without disclosing his reasons, leaving it to the defendant if he thinks proper, to inquire as to the grounds and reasons which support that conclusion. Stark. Ev. part 4, p. 861.

Numerous authorities have been adduced to the same point; Thatcher’s Crim. Cases, 29; Commonwealth v. Buckingham, Starkie on Slander, vol. 2, p. 50; Cooke on Def. 146; 2 Greenleaf Evi. 394; Bourke v. Warren, 12 Eng. C. L. 138.

On the other hand two cases are relied upon from New York as supporting a contrary doctrine. Did they both come up to the point we should refuse to follow them. But the leading case of Van Vechton v. Hopkins, 5 Johns. 24, does not reach this point. The point decided in Van Vechton, which is supposed to bear on this question was, that a witness could not be permitted to testify to the construction of a libel, unaided by any circumstances within the knowledge of the witness, except what he derived from reading the libel. To have held otherwise, would have been against every principle of law says Judge Spencer, and we concur with him. This case does not purport to overrule the law as stated in Starkie.

The case of Gibson v. Williams, 4 Wend. 326, however, does. The Court, in that case, copy the very passage which I have quoted above, and remark that Mr. Starkie cites no case as authority in support of his position, and express the be- ^ ^at none *s to ^0UnrJ and that it is not sustained any other writer upon the law of libel or the rules of evidence.

With due defference we think the learned Judge who delivered that opinion, was altogether mistaken as to the state of the authorities and the opinions of law writers, and not less mistaken in supposing that the case of Van Vechton v. Hopkins, the only one to which he referred, overruled the text in Starkie. It is evident to my mind that Judge Spencer, Kent and Thompson, when assenting to that decision, thought of nothing of the kind. They never suspected that their decision would work such a result.

Judgment affirmed.  