#### SEELY *v.*COLE.

Novice to produce papers-~-admlssion by counsel — redacting admissions.

A notice to produce papera may be given by an attorney or agent of the party for that purpose, who is not the attorney of record.

Where counsel at the bar admit the execution of a paper offered in evidence, they will not be permitted to retract the admission without leave of court and on good cause.

An answer by the plaintiff to the libel can only be evidence if it admit the tiuth of the matter justified. One libel cannot be offset against another, no after publications could enter into the motive of publishing the former.

What the defendant said about the libel is evidence for the plaintiff, if it show the motive.

Evidence in chief casually omitted, may in the discretion of the eouit be admitted afterwards.

Libel. Plea, not guilty, with notice of justification.

The plaintiffs called R. Hitchcock, esq. who testified that he drew a notice for the plaintiff and served on the defendant to produce at the trial, the original manuscript of the libel declared upon, and that though not the plaintiff’s attorney of record, he was employed by him for that purpose.

Tod, for the defendant

objected to this proof, because the notice was neither given by the party or his attorney of record.

Wood, J.

The real question is, whether the notice was given by the authority of the plaintiff, it is as well given by any other author.ized person as by the attorney of record. The statute does not, require the notice to be given by the attorney of record.

*682
      *Webb,*for the plaintiff,

objected its incompetence.

*Paine,*for the defendant,

objected its incompetence.

*Paine.*

It is evidence in chief, and cannot therefore be introduced after the plaintiff has rested.

The plaintiff then called a witness to prove the paper containing the libel to have been published by the defendant, when *Paine,*one of his counsel admitted,it, and said it might be read, but when the reading commenced, Paine said he retracted the admission, and required proof.

Wood, J.

You will not be permitted to do so. The admission was openly made in the progress of the cause and will bind you. In such cases the admitting party has no right to retract without leave of the Court, and we do not give such leave, unless upon good cause shown.

The plaintiff having rested, the defendant offered a witness with a paper purporting to be the' plaintiff’s answer to the libel, and to prove its publication in the newspaper.

Wood, J.

If the paper be admitted or proven to be the plaintiff’s and it contains any admission of the matter justified, you may read the admission. It is not material whether he has published it. You cannot set off one libel against another, and the after publication by the plaintiff could not enter into the motive for the defendant’s publication.

A witness of the defendant’s was asked by the plaintiff’s counsel on cross-examination, what the defendant said about the subject of the libel?

Wood, J.

It is admissible, as showing the degree of malice, and bears on the amount of damages.

Wood, J.

If it bo evidence in chief, it is admissible in our discretion, and we are constantly in the habit of indulging counsel in that way: the question maybe answered.