Malicious intention. purpose of fair and candid discussion, travels into collateral matter, and introduces facts not stated in the work, accompanied with injurious comments upon them, such person is a libeller, and liable to an action (7). On the other hand, it seems that a mere wicked and mischievous intention, unless it be conjoined with some publication of noxious and illegal matter, cannot constitute an offence against the law, though, if an act be done in itself criminal, legal malice is a mere formal inference of law (m). With respect to evidence to prove general malice, the rule of law in criminal is analogous to that in civil proceedings for libel. If the publication, considered either abstractedly, or in connexion with the extrinsic facts alleged, be calumnious, injurious, and criminal, either because it conveys some offensive, noxious, or disgraceful imputation (n), or exposes an individual to the hatred and contempt, or even to the ridicule, of others, and no circumstances appear, which, in legal consideration, supply either an absolute or even qualified defence (o), malice, if material, is yet but a mere inference of law, which the jury are bound to find according to the direction of the Court. If, on the other hand, there be circumstances which supply a justification or excuse, provided the defendant acted honestly, with a view to the occasion, and was not actuated by express collateral malice, then it lies on the prosecutor to prove such express malice, or malice in fact (p). (1) Carr v. Hood, 1 Camp. 355, n., recognised Green v. Chapman, 4 B. N. C. 92; Thompson v. Shackell, Mo. & Malk. 187; Soane v. Knight, Mo. & Malk. 74. (m) 1 Stark. Sland. and Lib., 2nd ed., Prel. Dis., p. cxxxviii., cxxxix.; 2 Stark. Sland. and Lib., 2nd ed., 242, n. (b). (n) Digby v. Thompson, 4 B. & Ad. 821; Bloodworth v. Gray, 8 Scott, N. R., 9, which was an action for slander. (0) The recent stat. 6 & 7 Vict. c. 96, intituled, "An Act to amend the Law respecting defamatory Words and Libel," makes some important alterations in the law on this subject. See particularly ss. 2, 4, 6, 7. (p) 2 Stark. Sland. and Lib., 2nd ed., 322, 323. See Pearson v. Lemaitre, 6 Scott, N. R., 607. So, in ordinary actions for slander, malice in law may be inferred from the act of publishing the slanderous matter, such act itself being wrong and intentional, and without just cause or excuse, but in actions for slander primâ facie excusable, on account of the cause of publishing the slanderous matter, malice in fact must be proved (q). Hansard. In the recent case of Stockdale v. Hansard (r), it was Stockdale v. held to be no defence in law to an action for publishing a libel, that the defamatory matter was part of a document, which was, by order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the House, and which was afterwards, by order of the House, printed and published by the defendant. In consequence of this decision, the stat. 3 & 4 Vict. c. 9, was passed, which enacts, that all proceedings, whether by action or criminal prosecution similar to the above, shall be stayed by bringing before the Court or judge a certificate, under the hand of the Chancellor or of the Speaker of the House of Commons, to the effect, that the publication in question is by order of either House of Parliament, together with an affidavit verifying such certificate. jury. In accordance with the above principles, the rule is, Direction to that, in an action for libel, the judge ought not to leave it as a question for the consideration of the jury, whether the defendant intended to injure the plaintiff, for every man, as above stated, must be presumed to intend the natural and ordinary consequences of his own act; but he ought to define what is a libel in point of law, and direct them to consider, whether the tendency of the matter published be injurious to the plaintiff (s). (q) 2 Selw. N. P., 10th ed., 1244; Padmore v. Lawrence, 11 A. & E. 380; Toogood v. Spyring, 1 Cr., M. & R. 181; Kine v. Sewell, 3 M. & W. 297. (r) 9 A. & E. 1. (8) Fisher v. Clement, 10 B. & C. 472; Haire v. Wilson, 9 B. & C. 643; Parmiter v. Coupland, 6 M. & W. 105; recognised Baylis v. Law Concluding remarks. In favorem vitæ. We shall conclude this subject of criminal intention by referring briefly to two rules relative thereto, which are laid down by Lord Bacon in his collection of maxims. The first is-In criminalibus sufficit generalis malitia intentionis cum facto paris gradûs(t). "All crimes," he remarks, "have their conception in a corrupt intent, and have their consummation and issuing in some particular fact, which, though it be not the fact at the which the intention of the malefactor levelled, yet the law giveth him no advantage of the error, if another particular ensue of as high a nature." Thus, if a poisoned apple be laid in a certain place, with a view to poison A., and B. comes by chance and eats it, this amounts nevertheless to murder, although the malicious intention of the person who placed the apple was directed against A., and not against B. (t) The other rule above adverted to is as follows:-Excusat aut extenuat delictum in capitalibus quod non operatur idem in civilibus. "In capital cases, in favorem vitæ, the law will not punish in so high a degree, except the malice of the will and intention appear; but in civil trespasses, and injuries that are of an inferior nature, the law doth rather consider the damage of the party wronged than the malice of him that was the wrong-doer "(x). For instance, the law makes a difference between killing a man upon malice aforethought, and upon present heat and provocation; but, if I slander a man, and thereby damnify him in his name and credit, it is not material whether I do so upon sudden choler, or of set malice; but I shall be, in either case, answerable rence, 3 P. & D. 526; per Best, peared that he was not requested so to for damages in an action on the case (y). For there is a distinction in this respect, which will be further illustrated hereafter, between answering civiliter et criminaliter for acts injurious to others: in the latter case, the maxim applies, actus non facit reum nisi mens sit rea; but it is otherwise in civil actions, where the intent is immaterial, if the act done be injurious to another; of which rule a familiar instance occurs in the liability of a sheriff, who, by mistake, seizes the goods of the wrong party under a writ of fi. fa. (z). It was One instance, in which this principle in favorem vitæ was Gray v. Reg. recently considered, may, in conclusion, be added, because it involves a point of considerable importance, and has attracted a corresponding degree of attention. decided by the House of Lords, on writ of error from the Court of Queen's Bench in Ireland, that the privilege of peremptory challenge on the part of the prisoner extends to all felonies, whether capital or not; and it was observed by Mr. J. Wightman, delivering his opinion on a question proposed for the consideration of the judges, and commenting on the position, that the privilege referred to was allowed only in favorem vitæ, and did not extend to cases in which the punishment is not capital, that it would seem that the origin of the privilege in felony may have been the capital punishment usually incident to that quality of crime; but that the privilege was annexed to the quality of crime called felony, and continued so annexed in practice in England at least down to the time when the question was raised, in all cases of felony, whether the punishment was capital or not (a). (y) Bac. Max., reg. 7. (z) Per Ld. Kenyon, C. J., Haycraft v. Creasy, 2 East, 104. As to the liability of the sheriff, see Jarmain v. Hooper, 7 Scott, N. R., 663; Sanderson v. Baker, 2 W. (a) Gray v. Reg., 8 Jur. 879. New trial when the damages are small. DE MINIMIS NON CURAT LEX. (Cro. Eliz. 353).—Courts of justice do not take trifling and immaterial matters into account (b). A familiar instance of the application of this maxim occurs in the rule, that in general new trials shall not be granted, at the instance either of plaintiff or defendant, on the ground of the verdict being against evidence, (though it may be on that of misdirection), where the damages are less than 207. (c); and the Court will not, in general, grant a new trial, where the value of the matter in dispute, or the amount of damages to which the plaintiff would be fairly entitled, is too inconsiderable to merit a second examination (d); the exceptions to this rule being, in cases where the action was tried before the sheriff, in which the amount requisite in order to obtain a new trial must be 57., or where the verdict involves somes particular right, independent of the damages (d). In a recent case, on an application to stay judgment and execution in a cause tried before the under-sheriff, the Court observed, that the object of the statute (e) which gave the judges power to direct writs of trial to inferior courts, was to render the proceedings in actions of small amount less expensive and more speedy, which would be altogether defeated if they were to be carried to a court of error (g). (b) Bell, Dict. and Dig. of Scotch Law, 284. (c) Branson v. Didsbury, 12 A. & E. 631. See Vaughan v. Watt, 6 M. & W. 496, 497, where a new trial was granted on the ground of misdirection, the verdict having been for 107. only; per Parke, B., Twigg v. Potts, 1 Cr., M. & R. 93. In Haine v. Davey, 4 A. & E. 892, a new trial was granted for misdirection, though the amount in question was less than 17. (d) 2 Chit. Arch. Pr., 7th ed., 1096. (e) 3 & 4 Will. 4, c. 42, s. 17. See 4 & 5 Will. 4, c. 62, s. 20. (g) White v. Hislop, 4 M. & W. 73. |