to K B.

Profecuti

ons.

was no Li

not fuffici

them, was afterwards removed by Certiorari into the King's removed in Bench, and the Defendant having pleaded Not guilty, it was tried before Mr. Juftice Clive, at the Summer Afsizes held for the Town of Nottingham, July 30, 1762. The Evidence. Evidence on the l'art of the Profecution was, the Profecutrix and her Maid Servant who went for the Paper; and the Evidence of the Publication of it as a Libel was, the Direction of it to the Profecutrix, and the Defendant's Acknowledgment to the Maid that he read it at the Meeting. The Defendant's Counfel called no Witneffes, being of Opinion, that the Quakers, who were the only Perfonsakers no legal Witthat could give an Account of their Method of proceeding, nefses on were difabled by the Statute of 7 & 8 W. c. 34 from be- criminal ing Witneffes on a Criminal Profecution, and being reftrained from arguing that the Paper in Question was no Argument Libel, by the Judge, who faid that fuch a Question was that Paper more proper to be determined by the Court above, could bel not alonly infift, that the Evidence on the Part of the Profecu-lowed. tion was not fufficient to maintain the Indictment. The Evidence Judge left the Cafe, with its Circumstances to the Jury; ent. but rather recommended it to them to acquit the Defendant. Judge reThe Jury, after withdrawing about three Hours, found the commended Defendant guilty. In the Michaelmas Term following, Jury find Mr. Cuft moved the Court of King's Bench for a new Trial, Defendant and after ftating the above mentioned Facts, and obferving Motion in upon the Circumstances of Hardship which would attend K. B. for the Cafe on a Motion in Arrest of Judgment, where no new Trial. Facts could be relied on but what appeared in the Record, and after a Verdict it might be prefumed that a malicious Intention to defame the Profecutrix (which was charged in the Indictment) was proved, infifting that the leaving fuch a Cafe as this to a Jury, would be enabling a Jury to fet up a Judgment in Oppofition to the Legislature, and overturn the Toleration Act, and that therefore the Verdict ought to be fet afide as a Verdict against Law. The Court was clearly of Opinion, that the Jury fhould have been directed to acquit the Defendant; and, as Notice of the Motion was given, and Counsel appeared for the Frofecution, who did not contradict the above mentioned Facts, the Court faid they would not do fo much Credit to fuch a Prosecution as to grant a Rule to fhew Caufe; and they verdict fet ordered the Verdict to be fet afide, and a new Trial to be atide, and had, on the first Motion. Michaelmas Term 3 Geo. 1763. K. B. 2 Burn's Ecclef. Law 779. The King V. without rule

Hart.

to acquit.

new Trial 3. granted

to fiéw Caule.

CHAP.

94

Ven. Fac. returnable

tringas tefte

out Autho

rity. Miftake in

CHA P. XX.
С НА

A MENDMENT.

THE

HE Defendant was found guilty upon an Informati on, for a (a) Libel, and it was moved in Arrest of 23 08.Dif Judgment, that the Venire Facias was returnable 23d of 24 68. not October, but the Diftringas was Tefte 24th of October, amendable. whereas the Venire was returned the 23d. The Court held Trial with this not amendable by any Statute of Amendment, nor at Common Law, because it wou'd be to warrant a Trial that was tried without any Authority, and to make it conSkill. Gould J. trary to the Truth of the Fact, and it is a mistake of the Porvis J. Clerk in Skill. Gould Juftice held, that it was amendable Holt Ch. J. at Common Law. Powis Justice thought it rather amendPowell Jable than not. Holt Chief Justice, and Powell Justice, held it not amendable; and thereupon (as the Lord Chief Justice Raymond fays) Powis, who had delivered his Opinion with great Dubiousness, and concluded it as mentioned above, came over to Holt and Powell, and held it not amendable; becaufe, as he faid, it fhould not go upon a Court divided. And fee there the (b) Arguments of the Judges much at large. S. C. cited Gilb. Hift. C. P. 117. and Bac. Abr. in the fame Words. Michaelmas Term 3 An. 1702. 2 B. Salk. 51. pl. 14. 2 Ld. Raym. 1061. 2 Vin, Abr. 395. pl. 20. The Queen v. Tutchin.

(a) This being a Cause of great Expectation, for it was a Prosecution dis rected by the Queen at the Inftance of the House of Commons, it was very elaborately argued on Behalf of the Crown and after very folemn and long Arguments on both Sides, and allo feriatim by the Court, the Judgment was arrested. 2 Lord Raym. 1061.

(b) The Lord Chief Juftice Raymond says, that he was not prefent at the Arguments, expecting they would have been printed, all the Proceedings having been taken for that Purpofe in Short-Hand; and was not for the fame Reafon fo exact in taking the Arguments of the Judges, which therefore may not improbably have been miflaken. 2 Lord Raym 1069.

CHAP.

CHA P. XXI.

NOTICE of TRIAL.

ON

are neceffa

N an Information for a Libel, there must be 14 Days 14 DaysNo. Notice of Trial, and his Notice of Trial is fufficient tice of Trial for him to appear, and if he do not, the Recognizance ry on an Inmust be eftreated though on fuch Recognizance to appear formation de Die in Diem, the Party must have Notice to appear (un- for a Libel. Party upon lefs in the said Cafe) except the first and last Day of Term, Recogniwhen they must always appear, or the Recognizance is zances must forfeited. Eafter Term 6 Geo, 1720. K. B. Fortefe. Rep. pear firft and always ap 357. The King v. Pain.

laft Day of Term, or the Recognizance forfeited.

IN

CHAP. XXII.

EVIDENCE.

feffion.

IN an Information for publishing a Libel, the Defend- Defendant's ant's own Confeffion was given in Evidence againft him; own Conbut by Holt Chief Justice, If there was no other Evidence against him but his own Confeffion, the whole must be taken, and not fo much of it as would ferve to convict him. Hilary Term 7 Wil. 3. 1701. K. B. 5 Mod. 165. The King v. Pain.

Peace not

On a Trial on an Information for a Libel, Depofitions Depofitions taken before a Justice of Peace relating to the Fact, the taken before Deponent being fince dead, were not allowed in Evidence, Juftice of by K. B. upon Advice with the Judges of C. P. In Cafes allowed in of Felony fuch Depofitions before a Juftice, if the Depo- Evidence. nent die, may be ufed in Evidence by 12 Ph. & Mar. chap. 13. But this cannot be extended farther than the particular Cafe of Felony. Salk. 281. pl. 8. Comb. 358,| 359. 5 Mod. 165. 12 Vin. Abr. 228. pl. 2. S. C

And after long Debate and Conference with the Juftices of C. P. by Justice Eyre, the Court would not allow it to be given in Evidence, and the Information was refused to be accepted; and the Ch. J. declared, that it was the

Opinion

Reaton why Opinion of both Courts that thefe Depofitions should not they should be given in Evidence, the Defendant not being prefent not be given in Evidence. when they were taken before the Mayor, and had loft the Benefit of a Crofs-Examination. Ld. Raym. 729, 730. Variance be- 5 Mod. 163. S. C.

tween Libel

recited and

Where one is indicted for writing a Libel fecundum Tethat given norem fequentem, any the least (a) Variance between the in Evidence, Libel recited and that given in Evidence, is fatal; but fatal. where the Substance only of a Libel is fet forth in Latin, it is fufficient, if the Libel be proved to have the fame fet forth in Sense as fet forth. 2 Hawk. Pl. Cr. 436. pl. 36. See 12 Latin fuffici Mod. 218, 219. 11 Mod. 97.

Where Sub

ftance only

ent, if Libel

be proved to have fame

Sense. Difference between

There is a difference betwen Words spoken, and Words written; of the former there can be no Tenor, [viz. a Tranfcript] for there is no Original to compare them with, as there is of Words written, and though there have been Words Ipo- Attempts to plead a Tenor of Words fpoken, it has never ken, and been allowed; and therefore, if one declares for Words fpoken, a Variance in the Omiffion, or Addition of a Word is not material, and it is fufficient, if so many of the Words be proved, and found, as are in themselves a&ionable. 12 Vin. Abr. 68. pl. 46.

Words written.

ficient to read it.

What Confeffion of In an Information for a Libel against the Doctrine of being Authe Trinity, the Witness for the Crown, who produced thor of a Libe! is fuf- the Libel, fwore that it was fhewn to the Defendant, who owned himself the Authorof that Book, Errors of the Prefs and fome fmall Variations excepted. The Counsel for the Defendant objected, that this Evidence would not intitle Mr. Attorney to read the Book, because the Confeffion was not abfolute, and therefore amounted to a denial that he was the Author of that Identical Book. But Chief Justice Pratt allowed it to be read, faying he would put it upon the Defendant to fhew that there were material Variances. Hilary Term Geo. 1721. K. B. Stra. Information 416. The King v. Hall.

for 2 Libel of which the Defen

dant was

only con

cerned in Part.

An Information for a Libel, fetting forth, that the Defendant caused to be printed and published a fcandalous Libel, called "The Poft-boy of to," in which was contained the following fcandalous Paffage, and fo fet forth the Paragraph. Upon the Trial it appeared, that the Defendant brought the Paragraph to the Printer, and defired him to publish it in the Poft-boy.

(a) In an Information for a Libel, the Variance of the Word (nor) for (not) was held fatal upon Evidence. 12 Fin. Abr. 68. pl. 45.

And

did not fup

port Infor

And the Chief Juftice Raymond was of Opinion, that Evidence this Evidence did not fupport the information, which charges him as Publisher of the whole Paper, whereas it now mation. appears he was only concerned in Part of it; fo the Defendant was acquitted. Trinity Term 12 Geo. 1726. 2 Seff. Defendant Caf. 32. pl. 36. The King v. Newport. acquitted.

A Libel must be proved to be written in the County Libel muft laid in the Indictment, to convict the Defendant of making be proved to the Libel, all Matters of Crime being local. 4 Read, be wrote in County laid Stat. Law. 155. 8 Mod. 328. S. P.

С НА Р. XXIII.

Province of Court and Jury.

in Indict

ment.

that the li

I N an Information for a Libel, it was urged, that the The Court the Paper published contain any libellous Matter; for then bellous the Application must be left to the Jury. But per Cur. Matter is This Rule is not to be taken fo extenfively; for where the applicable Application is merely indifferent, we will not grant an In- complainformation, but there must be a feeming and apparent Ap- ing. plication to be made. Eafter Term 2 Geo. 2. 1729. K. B. Fitzgib. 57. pl. 7. The King v. Butcheler.

to the Party

TH

CHA P. XXIV.
Р.

COST S.

Court as to to Cofts.

HE Court made a general Rule, viz. that where any General Perfon moves for an Information, and has a Rule Rule of nifi, if, upon fhewing Cause, that Rule is discharged, the Party who made the Motion fhall pay Cofts. Note; This Rule was never strictly followed, but always held difcretionary. Eafter Term 5 Geo. 2. 1732. K. B. 2 Kel.61. pl. 8. Anon'.