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was not trusted with the receipt of money. Bagnall v. Underwood, 11 Price, 621.
In the same manner where the libel admits any other of the introductory averments, such averments need not be proved. Where the declaration averred that the plaintiff had been appointed envoy by certain persons exercising the powers of government in the republic or state of Chili, in South America, the libel stating that the plaintiff had colluded to obtain money in the matter of a loan, for the republic or state of Chili, was held to be sufficient proof of the existence of such a state. Yrisarri v. Clement, 3 Bingh. 432 (a). So where a libel alleged that certain acts of outrage had been committed, and there was a similar introductory averment, it was held that the latter required no proof. Sutton's case, 4 M. and S. 548, see ante, p. 103. If an introductory averinent be immaterial, it may be rejected as surplusage, and need not be proved; and, in general, where it is not matter of description, it is divisible, and part of it only may be proved. Vide ante, p. 91.
The averment that the libel was published “of and concerning" the prosecutor, or “of and concerning” the particular matters averred, must be proved as laid.
The declarations of spectators, while viewing a libellous picture publicly exhibited in an exhibition room, were admitted by Lord Ellenborough, as evidence to show that the figures portrayed were meant to represent the parties alleged to have been libelled. Dubois v. Beresford, 2 Campb. 512.
Proof of publication in general.] All who are concerned in publishing a libel are equally guilty of a misdemeanor ; Bac. Ab. Libel. (B.) 1 Russell, 234; but the writing or composing a libel, without a publication of it, is not an offence. The mere writing a defamatory libel, which the party confines to his own closet, and neither circulates nor reads to others, is not punishable. Paine's case, 5 Mod. 165, 167. So the taking a copy of a libel is not an offence, unless the person taking the copy publishes it. Com. Dig. Libel, (B. 2).
The question of publication is ordinarily one of mere fact, to be decided by the jury; but this, like all other legal and technical terms, involves law as well as fact, and it is a question for the court in doubtsul cases, whether the facts when proved constitute a publication in point of law (1). 2 Stark. on Slander, 311, 2d ed.
With regard to the acts which constitute a publication, it has been held that a man who acts as servant to the printer of the libel, and claps down the press, is punishable, though it do not appear that he clearly knew the import of the libel, or that he was conscious *he was doing any [ *600]. thing wrong. Clark's case, 1 Barnard. 304. To this decision, however, Mr. Serjeant Russell has, with much reason, added'a quære. 1 Russell, 234.
Production of a libel, and proof that it is in the handwriting of the defendant, afford a strong presumption that he published it.
Beare's case, i Lord Raym. 417. So printing a libel, unless qualified by circumstances, will, prima facie, be understood to be a publishing, for it must be
(1) Resp. o. Davies, 3 Yeates, 128, Southwick v. Stevens, 10 Johns. 442.
(a) Eng. Com. L. Rep. xiii. 36.
delivered to the compositor, and the other subordinate workmen. Per Cur. Baldwin v. Elphinstone, 2 W. Bl. 1033. A delivery of a newspaper (containing a libel,) according to the provisions of the 38 Gco. 3, c. 78, to the officer of the Stamp-office, has been held a publication, though such delivery was directed by the statute, for the officer had an opportunity of reading the libel. Amphlitt's case, 4 B. and C. 35 (a); see also Cook v. Ward, 6 Bingh. 408 (6). If a letter containing a libel, have the postmark upon it, that is prima facie evidence of its having been published. Warren v. Warren, i c. M. & R. 360; 4 Tyr. 850. Shipley v. Todhunter, 7 C. and P. 680 (c).
It is said, by Mr. Justice Fortescue, to have been ruled that the finding of a libel on a bookseller's shelf, is a publication of it by the bookseller. Dodd's case, 2 Sess. Ca. 33; Holt's L. of L. 284, 2d ed. The reading of a libel in the presence of another, without knowing it to be a libel, with or without malice, does not amount to a publication. 4 Bac. Ab. 458; Holt's L. of L. 282, 2d ed. But if a person, who has either read a libel bimself, or heard it read by another, afterwards maliciously reads or repeats any part of it to another, he is guilty of an unlawful publication of it. Hawk. P. C. b. 2, c. 73, s. 10.
Although, in civil cases, publication of a libel to the party libelled only is not sufficient to support an action, yet in criminal cases such publication will maintain an indictment or information (1). Hawk. P. C. b. 1, c. 73, s. 11; 1 Russ. 235. Wegener's case, 2 Stark. N. P. C. 245 (d). But such publication must be alleged to have been sent, with intent to provoke the prosecutor to a breach of the peace, and not with intent to injure him in his profession, &c. Wegener's case, supra.
Where the libel is in a foreign language, and it is set out in the indictment, both in the original and in a translation, the translation must be proved to be correct. In a case of this kind, an interpreter being called, read the whole of that which was charged to be a libel in the original, and then the translation was read by the clerk at nisi prius. Peltier's case, Selw. N. P. 987.
Where the libel has been printed by the directions of the defendant, and he has taken away some of the impressions, a copy of those left with the printer may be read in evidence. Watson's case, 2 Stark. N. P. C. 129 (C), ante, p. 4. In order to show that the defendant had caused a libel to be inserted in a newspaper, a reporter to the paper was called, who proved that he had given a written statement to the editor, the contents of which had been communicated by the defendant for the purpose [ *601 ) of publication ; and that *the newspaper produced was exactly the same, with the exception of one or two slight alterations not affecting the sense; it was held, that what the report published might be considered as published by the defendant, but that the newspaper could not be read in evidence, without producing the written statement delivered by the reporter to the editor. Adams v. Kelly, Ry. and Moo. N. P. C. 157 (f).
Where a libel is printed, the sale of each copy is a distinct publication, and a fresh offence; and a conviction or acquittal on an indictment for publishing one copy, will be no bar to an indictment for publishing ano
(1) Swindle v. The State, 2 Yerger, 581. State o. Avery, 7 Conn. 266. (a) Eng. Com. L. Rep. x. 275, (') Id. xix. 117. () Id. xxxii. 685. (d) Id. iii. 335.
(c) Id. iii. 280. (f) Id. xxi. 403.
ther copy. Carlisle's case, 1 Chitty, 451 (a), 2 Stark. on Slander, 320, 2d ed.
Proof of publication of libels contained in newspapers.] The proof of the publication of libels contained in newspapers was facilitated by the 38 Geo. 3, c. 78, but that act has been repealed by the 6 & 7 Wm. 4, c. 76, and provisions of a siinilar nature substituted.
By s. 6, of the recent statute, before any newspaper shall be printed, a declaration in writing shall be delivered at the Stamp-office, made and signed by the printer or publisher and proprietors of such newspaper, as therein directed, which declaration shall set forth the title of the newspaper, and of the house or building wherein it is intended to be published; and also the name, addition and place of abode of the printer and publisher thereof, and of the proprietors, if they, exclusive of the printer and publisher, do not exceed two, and if they do, then of two proprietors resident in the united kingdom, and their proportional shares. On a change of ownership, a fresh declaration is to be made, and every person knowingly or wilfully making a false or defective declaration shall, on conviction, be deemed guilty of a misdemeanor.
By s. 7, persons printing or publishing, or selling or delivering out any newspaper before such declaration is made, shall forfeit 50l. a day.
By s. 8, “all such declarations as aforesaid shall be filed and kept in such manner as the commissioners of stamp and taxes shall direct for the safe custody thereof; and copies thereof, certified to be true copies as by this act is directed, shall respectively be admitted in all proceedings, civil and criminal, and upon every occasion whatsoever, touching any newspaper, mentioned in any such declaration, or touching any publication, matter, or thing contained in any such newspaper, as conclusive evidence of the truth of all such matters set forth in such declaration as are hereby required to be therein set forth, and of their continuance respectively in the same condition down to the time in question, against every person who shall have signed such declaration, unless it shall be proved that previous to such tiine such person became lunatic, or that previous to the publication in question on such trial such person did duly sign and make a declaration that such person had ceased to be a printer, publisher, or proprietor of such newspaper, and did duly *deliver the [ *602 ] same to the said commissioners or to such officer as aforesaid, or unless it shall be proved that previous to such occasion as aforesaid a new declaration of the same or a similar nature respectively, or such as may be required by law, was duly signed and made and delivered as aforesaid respecting the same newspaper, in which the person sought to be affected on such trial did not join; and the said commissioners, or the proper authorized officer by whom any such declaration shall be kept according to the directions of this act, shall, upon application in writing made to them or bim respectively by any person requiring a copy, certified according to this act, of any
such declaration as aforesaid, in order that the same may be produced in any civil or criminal proceeding, deliver such certified copy, or cause the same to be delivered to the person applying for the same, upon payment of the sum of one shilling, and no more ; and in all proceedings and upon all occasions whatsoever a copy of any such decla
(a) Eng. Com. L. Rep. xviii. 135.
ration certified to be a true copy, under the hand of one of the said commissioners, or of any officer in whose possession the same shall be, upon proof made that such certificate hath been signed with the handwriting of a person described in or by such certificate as such commissioner or officer, and whom it shall not be necessary to prove to be a comunissioner or officer, shall be received in evidence against any and every person named in such declaration as a person making or signing the same as sufficient proof of such declaration, and that the same was duly signed and made according to this act, and of the contents thereof; and every such copy so produced and certified shall have the same effect for the purposes of evidence against any and every such person named therein as aforesaid, to all intents whatsoever, as if the original declaration of which the copy so produced and certified shall purport to be a copy had been produced in evidence, and been proved to have been duly signed and made by the person appearing by such copy to have signed and made the same as aforesaid ; and whenever a certified copy of any such declaration shall have been produced in evidence as aforesaid against any person having signed and inade such declaration, and a newspaper shall afterwards be produced in evidence intituled in the same manner as the newspaper mentioned in such declaration is intituled, and wherein the name of the printer and publisher, and the place of printing shall be the same as the name of the printer and publisher, and the place of printing mentioned in such declaration, or shall purport to be the same, whether such title, name and place printed upon such newspaper shall be set forth in the same form of words as is contained in the said declaration, or in any form of words varying therefrom, it shall not be necessary for the plaintiff
, informant, or prosecutor in any action, prosecution, or other proceeding, to prove that the newspaper to which such action, prosecution, or other proceeding may relate was purchased of the defendant, or at any house, shop, or office belonging to or occupied by the defendant, or by his servants or workmen, or where he may usually carry on the business of printing or [ *603 ). publishing such newspaper, or where the same may *be usually sold; and if any person, not being one of the said commissioners, or the proper authorized officer, shall give any certificate purporting to be such certificate as aforesaid, or shall presume to certify any of the matters or things by this act directed to be certified by such commissioner or officer, or which such commissioner or officer is hereby empowered or intrusted to, certify; or if any such commissioner or officer shall knowingly and wilfully falsely certify, under his hand, that any such declaration as is required to be made by this act was duly signed and made before him, the same not having been so signed and made, or shall knowingly and wilfully falsely certify that any copy of any declaration is a true copy of the declaration of which the same is certified to be such copy, the same not being such true copy, every person so offending shall forfeit the sum of one hundred pounds.":
By s. 9, service of legal process, either in civil or criminal suits, at the place of printing or publishing mentioned in the declaration shall be deemed sufficient service.
By s. 10, titles of newspapers and names of printers and publishers are to be entered in a book at the Stamp-office, and persons shall have liberty to inspect it.
Since the passing of the 38 Geo. 3, c. 78, the production of a certified
copy of the affidavit and of a newspaper corresponding in the title and in the names and descriptions of printer and publisher, with the newspaper mentioned in the affidavit, has been sufficient evidence of publication. Mayne v. Fletcher, 9 B. and C. 382 (a); R. v. Hunt, 31 State Trials, 375. But where the affidavit and the newspapers vary in the place of residence of the party ; Murray v. Souter, cited 6 Bingh. 414; or in the name of the printing place; Franceys' case, 2 A. and E. 49 (6); it is insufficient. The statute has been held to apply to motions for criminal informations. Donnison's case, 4 B. and Ad. 693 (c); Franceys' case, supra. A newspaper may be given in evidence, though it is not one of the copies published, and though it be unstamped. Pearce's case, Peake, 75.
Proof of publication-by admission of the defendant.) On an information for a libel, the witness, who produced it, stated that he showed it to the defendant, who admitted that he was the author of it, errors of the press and some small variances only excepted. It was objected that this evidence did not entitle the prosecutor to read the book, the admission not being absolute; but Pratt, C. J., allowed it to be read, and said that he would put it to the defendant to prove material variances. Hall's case, 1 Str. 416. An admission of the signature to a libel is no admission of its having been published in a particular county. Case of the seven Bishops, 12 How. St. Tr. 183. An admission of being the publisher of a periodical work cannot be extended beyond the date of such admission. M'Leod v. Wakley, 3 C. and P. 311 (d).
Publication-constructive publication. It is now well established, that, in order to render a party guilty of publishing a libel, *it is [ *604) not necessary that he should be the actual publisher of it, or that he should even have a knowledge of the publication ; not only is a person, who procures another to publish a libel, himself guilty of the offence, Hawk. P. C. b. 1, c. 73, s. 10, but a bookseller or publisher, whose servant publishes a libel, is criminally answerable for that act, though it was done without his knowledge. This rule, which is an exception to those which govern the other branches of criminal law, appears to be founded upon a principle of policy, and to have been arbitrarily adopted with the view of rendering publishers cautious with regard to the matters to which they give general circulation. The leading case on this subject is that of Almon's case, 5 Burr. 2689. The defendant, a bookseller, was convicted of publishing a libel in a magazine. The proof of the publication was, that the magazine was bought at his shop. A new trial was moved for, on the ground that the libel had been sent to the defendant's shop, and sold there by a boy, without his knowledge, privity, or approbation ; but the court were clear and unanimous in opinion that this libel, being bought in the shop of a common known bookseller and publisher, importing, by its title-page, to be printed by him, was a sufficient prima facie evidence of its being published by him,—not indeed conclusive, because he might have contradicted it, if the facts would have borne it, by contrary evidence. The court regarded the matters urged as grounds for a new trial, merely as an extenuation of the offence. So Lord Kenyon ruled, that the proprietor of
(@) Eng. Com. L. Rep. xvii. 401. (b) Id. xxix. 27. (©) Id. xxiv. 143. (d) Id. xiv. 322.