SIMPSON VS. WILEY et al., 4 Port. 215

HITCHCOCK, C. J. — This was car action brought by Simpson, against Wiley, et ah, in the Circuit Court of Dallas county, for a libel. The matter charged as libellous, is alleged to have been written and published by the defendants, in a paper called the Alabama State Intelligencer, printed at Tuskaloosa, under date of the thirteenth of April, eighteen hundred and thirty-one. The questions presented by the record, arise upon a bill of exceptions, take:* by the plaintiff below.

They are all of asimilar character, and relate to the exclusion by the Court, of testimony offered by the plaintiff’, to ÍI:;. the publication upon tho defendants. They arc us follow— 1. A witness, Doctor Hogan, was produced, by whom ho proved, that previous to the thirteenth of April, eighteen hundred and thirty-one, fee took a paper called the ‘‘Alabama Citato Intelligencer,” from the cilice of that paper, printed in Tuokaloosa; but whether lie took it at that elate, he could not positively state.

Ho wan Ikon asked, if the paper presented to him, which was a paper styled the “Alabama State Intelligencer,” following which words, were the words, “ by Wiicy,-McGuire & Henry — Wednesday morning, April 13, 1831,” bore a resemblance to the paper taken by .him from the office. This question the Court decided to be illegal. 2. The witness was asked, whether “ it was the general reputation at Tuskaloosa, and other parts of the country, that the defendants were partners and joint editors of that paper.” This question was also decided to be illegal. 3: A Mr.

Tarver was produced as a witness, who swore that he had paid Wiley, one of the defendants, for the “ Alabama State Intelligencer.” He was asked, whether the paper fee paid for, did not contain an article, in all respects, similar to the one shewn to him. The paper received by the witness was not produced. This question was decided to be illegal. 4. A Mr. Borden was then produced, who swore, that he had corresponded with Wiley, as one of the editors of the “Alabama State Intelligencer,” and received replies from him.

Such correspondence was in writing, and the letters not being produced, this testimony was excluded. 5. The witness stated, that he was post-master, at Cahawba, on the thirteenth of April, eighteen hundred and thirty-one, and that the newspaper above alluded to, came to that office. He was then shewn a number of that paper, dated the thirteenth of April, eighteen hundred and thirty-one, and asked whether the paper which was shewn him, resembled those sent to his office. This question was pronounced illegal. 6.

He was then asked, if he did not write a letter to Wiley, a copy of which is purported to be given in the

article contained in the paper shewn to him. This question was also decided to be illegal. 7. The deposition of William T. Barry was produced, to prove a publication by Wiley, in which he states, that he received a letter, signed Thomas H. Wiley, in which was enclosed a printed paper, (the libel declared on,) .but the letter was not produced, for which cause the deposition was excluded. A verdict and judgment was rendered for the de^ fendant below ; the case has come here by writ of error, and the several exclusions of evidence, as above stated, assigned for error. They present three points— 1.

Can the publication of a libel be established by the resemblance of one paper, which is not proved to have been published, to another which lias been published, but which is not produced, nor its absence accounted for. 2. Can a publication be proved by any admissions in a letter, when the letter is not produced, or its absence accounted for'? 3. Can a publication be proved by evidence of the general impression, or reputation, through the country, that the defendants were joint partners and editors of the paper'?

The first, third' and fifth questions propounded to the witnesses, relate to the first; the fourth, sixth and seventh, relate to the second, and the second question relates to the third point. It is admitted, that before a libel can be read at the trial, it must be proved to have been published by the defendant, or by others, with his privity, and when this is attempted to be done by other, than direct and positive evidence, such as, that the witnesses saw the defendant circulate the paper produced ; .but when it is attempted by cireumstanciai proof, ■the party must proceed by the ordinary rules of evidence.

In relation to the three attempts, embraced by the first point, it is analagous to an offer to prove the paper by. a comparison of hand-writings, with this additional objection, that the paper with which the comparison is to be had, was not before the jury. Admitting the evidence to have been received, -it would not still have established the fact of publication by the defendants, as it would not have proved the publication of the paper produced by the defendants, which was the issue in controversy.

It is only necessary to say, on the second point, that the best evidence of the facts contained in the letters referred to, would be the production of the letters themselves. No notice was proven to have been given to the defendants to produce, on the trial, the letters between Borden and Wiley, and the fact, that the post master general thought proper, for reasons of public policy, to withhold the letter received by him, will not authorise the Court to euopend the rule of evidence, and allow that which is ceccndary.

As to the third point, the evidence offered could amount only to hearsay, which belongs to another class of cases, and if proven, would not establish the main fact, to wit, the publication, by the defendants, of the paper produced on the trial. It is true, that the connexion of the defendants with the “ Alabama.

State Intelligencer,” and that the paper produced was issued freír, that office, both of which facts, it was nccexruy to prove, might depend upon proof of many circorcteKccs, independent of each other, yet each fa;*,:;, or circumstance, must be established by evidence, legal in its character, and the difficulty of getting at the main fact, which, in England, has produced a statute upon the subject, does not authorise the Court to relax the established rales of evidence. There being, therefore, in our opinion, no evidence of a legal character excluded, the judgment must be affirmed.