be proved. Proof that the defendant accounted (e) for the stamp duties of the newspaper in which the libel was contained, has been holden to be proof of publication. But see new statute, infra. In an action for a libel, contained in a letter written by the defendant's daughter, who usually wrote his letters of business, but there not being any evidence given to show that she was authorized or instructed by him to write the letter in question, or that he had recognized it, it was holden (f), that there was not any evidence to go to a jury against the defendant, inasmuch as it was not an act within the scope of the daughter's authority. There having been in a libellous letter a reference to a newspaper (g), as the authority upon which the libel was founded; it was holden, that the newspaper referred to might be given in evidence on the general issue, in mitigation of damages. Defendant may have the whole of the publication read from which the passages charged are extracts (h); so the defendant has a right to have read, as part of the plaintiff's case (i), another part of the same newspaper referred to in the libel complained of. Plaintiff declared as proprietor and editor of a newspaper (k); it was proved, that plaintiff was proprietor, but that his servant was editor; this was holden to be a fatal variance.

The proceedings against the printers, publishers, and proprietors of newspapers, either civilly or criminally (10), for any libel contained in such paper, are much facilitated by stat. 6 & 7 Will. IV. c. 76, by which it is enacted (7), that no person shall print or publish any newspaper before there shall be delivered at the Stamp Office, or to proper officers a declaration in writing, containing, 1. The correct title of the newspaper. 2. A true description of the houses or buildings wherein such newspaper is intended to be printed and published. 3. The true name, addition, and place of abode of the printer and publisher, and of every person resident out of the United Kingdom who shall be proprietor thereof; and also, of every proprietor

(e) Cook v. Ward, 6 Bingh. 409.

(ƒ) Harding v. Greening, 1 Moore, (C. P.) 477; 8 Taunt. 42, S. C.

(g) Mullett v. Hulton, 4 Esp. N. P. C. 248, Ellenborough, C. J.

(h) Cooke v. Hughes, Ry. & Moo. 112.

(i) Thornton v. Stephen, 2 Moody & Rob. 45, Denman, C. J., on reference to R. v. Lambert and Perry, 2 Campb. 398. (k) Heriot v. Stuart, 1 Esp. N. P. C. 437. (1) Sect. 6.

brook, Devon Summer Assizes, 1812, who there said, "It is not necessary to constitute a publication in a criminal prosecution, to show that it has been published to the world. It is sufficient if it is sent to the party libelled, its criminality depending upon its tendency to provoke the party libelled to a breach of the peace.'

(10) The proprietor of a newspaper is answerable criminally, as well as civilly, for the acts of his servants, in the publication of a libel, although it can be shown, that such publication was without the privity of the proprietor. R. v. Walter, 3 Esp. N. P. C. 21.

resident in the United Kingdom, if not exceeding two, exclusive of printer and publisher; if they do, then of such two proprietors, the amount of whose respective proportional shares in the property shall not be less than the proportional share of any other proprietor resident in the United Kingdom, exclusive of printer and publisher, specifying the amount of their shares. This declaration is to be signed by printer, publisher, and the named proprietors resident in the United Kingdom. The act then directs when fresh declarations shall be made, and before whom the declarations are to be made, and imposes a penalty if the declaration be false or defective. By sect. 8, such declarations are to be filed, and certified copies thereof shall be admitted in all proceedings civil and criminal (m), and upon every occasion, touching any newspaper mentioned in such declaration, or touching any publication, matter, or thing contained in such newspaper, as conclusive evidence of the truth of all such matters set forth in such declaration, as are required by the act to be therein set forth, &c.; and after production of the declaration, and of a newspaper corresponding in every respect with the description of it in the declaration, it will not be necessary to prove the purchase of the newspaper.

It was observed in the preceding section, that where the defendant contends that the libel is true, he must justify on record; but in one case (n), where the facts to be proved on the part of the defendant did not constitute a complete justification; as where they showed a ground of suspicion not amounting to actual proof of the plaintiff's guilt; it was holden by Eyre, C. J., that such facts might be given in evidence, on the general issue, in mitigation of damages. This doctrine, however, to the extent here laid down, seems questionable (11). Where the justification avers the truth of the facts,

(m) See R. v. Woolmer, 4 P. & D. 137 ; 12 A. & E. 422.

(n) Knobel v. Fuller, Peake's Ev. 287, ed. 2; Peake's Add. Cases, 139, S. C.

(11) In Sir John Eamer v. Merle, before Lord Ellenborough, which was an action for words of insolvency, the defendant was permitted to prove that at the time there were rumours in circulation that the plaintiff's acceptances were dishonoured. And in a case before Le Blanc, J., at Worcester, that learned judge received evidence under the general issue, that the plaintiff had been guilty of attempts to commit the crime, which the defendant had imputed to him. 2 Campb. 253, 254. So in the case of the E. of Leicester v. Walter, 2 Campb. 251, the defendant was permitted to prove, under the general issue, in mitigation of damages, that before and at the time of the publication of the libel, the plaintiff was generally suspected to be guilty of the crime thereby imputed to him, and that on account of this suspicion, his relations and acquaintances had ceased to associate with him. And in Wyatt v. Gore, Holt's N. P. C. 299, Gibbs, C. J., permitted the defendant, under the general issue, to prove that the substance of the libel charged in the declaration had been pre2 B

VOL. II.

which form the ingredients of the libel, each and every of the facts so alleged to be true, must be distinctly proved (0), in order to entitle the defendant to a verdict on the justification.

An executor (p) may, under the stat. 17 Car. II. c. 8, s. 1, enter up judgment on a verdict obtained by his testator in an action for a

libel.

In an action for libel, the judge may certify, under the 3 & 4 Vict. c. 24, s. 2, that the grievance for which the action was brought was wilful and malicious (q).

Doubts having arisen, whether, on the trial of an indictment or information for a libel, upon the plea of Not Guilty, it was competent to the jury to give their verdict upon the whole matter in issue; it was by stat. 32 Geo. III. c. 60, enacted and declared, that the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue, and shall not be required or directed by the court to find the defendant guilty, merely on the proof of the publication, and of the sense ascribed to the same in the indictment or information provided (r), that the court shall give their opinion and direction to the jury on the matter in issue, as in other criminal cases; and provided also (s) that the jury may, in their discretion, find a special verdict, and also (t), that the defendants, if found guilty, may move in arrest of judgment as before the passing this act. The foregoing statute does not affect civil cases, but is confined to criminal (u).

(0) Weaver v. Lloyd, 2 B. & C. 678. (p) Palmer v. Cohen, 2 B. & Ad. 966. (q) Foster v. Pointer, 8 M. & W. 395 ; see ante, p. 38, 9.

Sect. 2. (s) Sect. 3.

(t) Sect. 4.

(u) Levi v. Milne, 4 Bingh. 195.

viously published in a newspaper; and held, that it was not necessary to lay a basis for this evidence by producing the newspaper. In -V. Moor, in an action of slander imputing a specific charge of unnatural practices to plaintiff, where the declaration contained the usual allegation of good fame; &c., it was holden, that the witness who proved the words might be asked, upon cross-examination, whether he had not heard reports in the neighbourhood, that the plaintiff had been guilty of similar practices, in order to diminish the damages. See 1 M. & S. 284. But although general reports have been admitted in mitigation of damages, under the general issue, specific facts are not so admissible. Mills v. Spencer, Holt's N. P. C. 535, Gibbs, C. J. See also Waithman v. Weaver, 1 D. & R. 10, and Starkie's Law of Slander and Libel, vol. ii. p. 80, n., 2nd edition, where this subject is fully discussed. In Saunders v. Mills, 6 Bingh. 213, the defendant (the editor of a newspaper,) was permitted, under the general issue, in mitigation of damages, to show that he copied the libellous paragraph from another newspaper, but was not allowed to show that it had appeared concurrently in several other newspapers. See East v. Chapman, ante, p. 1057; May v. Brown, 3 B. & C. 113; Watts v. Fraser, 7 C. & P. 369.

It has been the course for a long time for the judge, in cases of libel, as in other cases of a criminal nature, first to give a legal definition of the offence, and then to leave it to the jury to say, whether the facts necessary to constitute that offence are proved to their satisfaction; and that, whether the libel is the subject of a criminal prosecution, or civil action. The judge is not bound to state to the jury, as matter of law, whether the publication complained of, be a libel or not. Mr. Fox's Libel Bill was a declaratory act, and put prosecutions for libel on the same footing as other criminal cases (x). See further on the subject of indictments for the publication of defamatory libels, stat. 6 & 7 Vict. c. 96, ss. 4, 5, 6.

The reader who is desirous of investigating the law of libel and slander as applied in Scotland, is referred to a very learned and ingenious work published at Edinburgh, by John Borthwick, Esq., advocate. It is worthy of consideration, whether a portion of that law might not be introduced with effect into our system.

(x) Per Parke, B., Parmiter v. Coup- v. Lawrence, 3 P. & D. 526; 11 A. & E. land, 6 M. & W. 108, recognized in Baylis

920.

CHAPTER XXVII.

MALICIOUS PROSECUTION.

I. Of the Action on the Case for a Malicious Prosecution, and in what Cases such Action may be maintained, p. 1062.

II. Of the Declaration, p. 1069; Defence, p. 1071; Evidence, p. 1072.

I. Of the Action on the Case for a Malicious Prosecution, and in what Cases such Action may be maintained.

AN action on the case lies against any person who maliciously, and without probable cause, prosecutes another, whereby the party prosecuted sustains an injury, either in person, property, or reputation. The action on the case for a malicious prosecution bears a strong analogy to the old, and now obsolete, action for a conspiracy; hence, it is frequently termed an action on the case in the nature of a conspiracy (a). But the grounds of the old action for conspiracy are narrow and confined, when compared with those on which the action on the case for a malicious prosecution is founded. The action for a conspiracy, having been framed according to the precise terms of a writ in the register, whose limits it does not presume to transgress, lies only in cases where two or more persons maliciously conspire to indict any person falsely of treason or felony (b), who is afterwards lawfully acquitted. The action on the case for a malicious prosecution varies its form as the circumstances of each particular grievance may require. Whatever engines of the law malice may employ to compass its evil designs against innocent and unoffending persons, whether in the shape of indictment or information (c), which charge a party with crimes injurious to his fame and reputation, and tend to deprive him of his liberty; or whether such

(a) Marsh v. Vauhan and another, Cro. Eliz. 701; Mills v. Mills, Cro. Car. 239. (b) See the opinions of Holt, C. J., and Treby, C. J., that a conspiracy lies only

for procuring another to be indicted for treason or felony, where life was in danger. Ld. Raym. 379.

(c) Moore v. Shutter, 2 Show. 295.