Sivut kuvina

ment, and that the intent ought to have been averred, to provoke the prosecutor to a breach of the peace. Wegener's case, 1 Stark. N. P. C. 245 (a). The allegation of intent is divisible, ante, p. 93.

Venue.] The libel must be proved to have been published in the county in which the venue is laid. Where the libel is once published, the party is guilty of a publication in every county in which such libel is afterwards published (1). Johnson's case, 7 East, 65, B. N. P. 6. So if he sent it to be printed in London, it is his act if the publication is there. Upon an information for a libel, in the county of Leicester, it appeared that it was written in that county, and delivered to a person who delivered it to B. (who was not called) in Middlesex. It was inclosed in an envelope, but there was no trace of a seal. The judge directed the jury, that as B. had it open, they might presume that he received it open, and that as the defendant wrote it in the county of Leicester, it might be presumed that he received it in *that county. The defendant hav- [ *608 ] ing been found guilty, it was urged, on a motion for a new trial, that there was no evidence of a publication in Leicestershire; but the Court of King's Bench (diss. Bayley, J.,) held that the direction of the judge was proper, and that if the delivery open could not be presumed, a delivery sealed, with a view to and for the purpose of publication, was a publication; and they held that there was sufficient to presume some delivery, either open or sealed, in the county of Leicester. Burdett's case, 4 B. and A. 95. In the above case the question was discussed, whether it was essential that the whole offence should be proved to have been committed in the county in which the venue was laid. Holroyd, J., expressed an opinion that the composing and writing a libel in the county of L., and afterwards publishing it, though that publication was not in L., was an offence which gave jurisdiction to a jury of the county of L., (Beer's case, 2 Salk. 417; Carth. 409; Knell's case, Barnard. K. B. 305,) and that the composing and writing with intent afterwards to publish, was a misdemeanor; but Bayley, J., held that the whole corpus delicti must be proved within one county, and that there was no distinction in this respect between felonies and misdemeanors. Abbott, J., said, that as the whole was a misdemeanor compounded of distinct parts, each of which was an act done in the prosecution of the same criminal intention, the whole might be tried in the county of L., where one of those acts had been done.

The post marks upon letters (proved to be such) are evidence that the letters which bear them were in the offices to which the post marks belong at the times denoted by the marks. Plumer's case, Russ. and Ry. 264 (b). But the mark of double postage having been paid, is not, of itself, proof that the letter contained an inclosure. Id.

Proof of a newspaper under the requisitions of the statute 38 Geo. 3, c. 78, ante, p. 601, was held to be proof that the paper was published in the county where the printing is described to be. Hart's case, 10 East, 94.

A letter containing a libel was proved to be in the handwriting of A., to have been addressed to a party in Scotland, to have been received at the post-office at C. from the post-office at H., and to have been then for

(1) So in the case of a newspaper printed in one state, and circulated in another. Comm. v. Blanding, 3 Pick. 304. See the cases cited ante, p. 590, n. 2.

(a) Eng. Com. L. Rep. iii. 280. (b) 1 Eng. C. C. 264.

warded to London to be forwarded to Scotland. It was produced at the trial with the proper post mark, and with the seal broken. This was held to be sufficient evidence of the letter having reached the person to whom it was addressed, and of its having been published to him. Warren v. Warren, C. M. and R. 250; 4 Tyr. 850.

Proof for the defendant.] As the offence of publishing a libel consists in the malicious publication of it, which, as already stated, is in general inferred from the words of the alleged libel itself, it is competent to the defendant in all cases, to show the absence of malice on his part. He cannot, it is true, give in evidence matter of justification, that is to [ *609] say, he cannot admit the publication to be *malicious, and then rely for his defence upon circumstances which show that he was justified, however malicious the libel may be, but he is not precluded from giving evidence of those circumstances which tend to prove that the original publication of the libel was without malice (1). It may, perhaps, be laid down as a rule, that the matters which might be given in evidence under the general issue in an action, in order to disprove malice, are also admissible for the same purpose upon the trial of an indictment or information.

The defendant may, therefore, show that the publication was merely accidental, and without his knowledge, as where he delivers one paper instead of another, or delivers a letter without knowing its contents. Topham's case, 4 T. R. 127, 128. Nutt's case, Fitzg. 47. Lord Abingdon's case, 1 Esp. 226. See also Day v. Bream, 2 Moo. and R. 54, where Patteson, J., held that a porter who in the course of his business delivered parcels containing libellous handbills, was not liable in an action for libel, if he were shown to be ignorant of the contents of the parcels. So the defendant, under the plea of not guilty to the indictment, may show that a libel was published under circumstances which the law recognizes as constituting either an absolute justification, or excuse, independently of the question of intention, or a qualified justification dependent on the actual intention and motive of the defendant. 2 Stark. on Sland. 308, 2d ed. Thus the defendant may show that the alleged libel was presented bona fide to the king as a petition for the redress of grievances; Case of the Seven Bishops, 12 St. Tr. 183; or to parliament; Hawk. P. C. b. 2, c. 73, s. 8; or that it was contained in articles of the peace exhibited to a magistrate, or in any other proceeding in a regular course of justice. Ibid. It seems, says Hawkins, to have been held by some, that no want of jurisdiction in the court to which such a complaint is exhibited will make it a libel, because the mistake of the proper court is not imputable to the party, but to his counsel; yet if it shall manifestly appear from the whole circumstances of the case, that a prosecution is entirely false, malicious, and groundless, commenced, not with a design to go through with it, but only to expose the defendant's character under the show of a legal proceeding, it would form a ground for an indictment at the suit of the

(1) Whether the truth can be given in evidence divided the court in The People v. Croswell, 3 Johns. Cas. 337. S. C. 2 Wheeler's C. C. 330. That it cannot, however, see The State v. Lehr, 2 Wheeler's C. C. 282. The Commonwealth v. Buckingham, Id. 181. The State v. Morris, 3 Id. 464. Commonwealth v. Blanding, 3 Pick. 304. Commonwealth v. Clap, 4 Mass. 163. But after showing the purpose of the publication to have been justifiable, the truth is admissible to negative the malice and intent to defame. Id.

king, as the malice of the proceeding would be a good foundation for an action on the case at the suit of the party (1). Ibid.

Though it is a defence to show that the alleged libel was published by a person in a privileged capacity, as by a member of parliament in his place, or by some person in the course of a judicial proceeding, yet if it appear that the publication took place by the party, when not invested with that privileged capacity, or by a third person, who has never been invested with it, it furnishes no defence. Thus a member of parliament, who after delivering his speech in parliament, publishes it, is criminally responsible for the libel; Creevy's case, 1 M. and S. 281; though by act of parliament, the members are protected from all charges against them for any thing said in either house. 1 W. and M. st. 2, c. 2.

*So it has been recently held by the Court of Queen's Bench, [ *610 ] that it is no defence in law to an action for publishing a libel, that the defamatory matter is 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 orders of the House, printed and published by the defendants; and that the House of Commons heretofore resolved, declared and adjudged, "that the power of publishing such of its reports, votes, and proceedings as it shall deem necessary or conducive to the public interests is an essential incident to the constitutional functions of parliament, more especially to the Commons' House of Parliament as the representative portion of it." On the demurrer to a plea suggesting such a defence, it was also held, that a court of law is competent to determine whether or not the House of Commons has such privilege as will support the plea. Stockdale v. Hansard, 9 A. and E. 1.

It will, upon the same principle, be a defence to show that the supposed libel was written bona fide, with the view of investigating a fact in which the party is interested, provided the limits necessary for effectuating such inquiry are not exceeded: Delany v. Jones, 4 Esp. 191; Finden v. Westlake, Moo. and Malk. 461 (a); Brown v. Croome, 2 Stark. N. P. C. 297 (b). So where the libel was an advertisement for the discovery of the plaintiff, an absconding debtor, published at the request of a party who had sued out a capias, for the purpose of enabling the sheriff to take him. Lay v. Lawson, 4 A. and E. 795 (c).

So the showing a libel to the person reflected on, with the bona fide intention of giving him an opportunity for making an explanation, or with a friendly intention to enable him to exculpate himself, or seek his legal remedy, is no offence. 2 Stark. on Slander, 249; 2d ed., B. N. P. C. 8; M'Dougall v. Claridge, 1 Campb. 267. And the same with regard to a letter of friendly advice. Id. Thus a letter from a son in law to his mother in law volunteering advice respecting her proposed marriage, and containing imputations upon the person whom she was about to marry, is a privileged communication, and not actionable unless malice be shown. Todd v. Hawkins, 2 Moo. and R. 20. But an unnecessary publicity would render such a communication libellous, as if the letter were published in a newspaper. Knight's case, Bac. Ab. Libel, (A. 2.)

(1) Bodwell v. Osgood, 3 Pick. 379. Gray . Pentland, 2 S. & R. 23. Lewis v. Few, 5 Johns. 1. Harris v. Huntingdon & al., 2 Tyler, 129; 1 Tyler, 164. Thorn v. Blanchard, 5

Johns. 508.

(a) Eng. Com. L. Rep. xxii. 356. (b) Id. iii. 353. (c) ld. xxxi. 182.

So a representation made bona fide, by the defendant to a public officer respecting the conduct of a plaintiff, a person acting under him, is not prima facie actionable. Blake v. Pilfold, 1 Moo. and R. 198. So a letter to the postmaster-general complaining of misconduct in a postmaster is not libellous, if it contains a bona fide complaint. Woodward v. Lander, 6 C. and P. 548 (a).

Upon the same principle the defendant may show that the supposed libel was written bona fide for the purpose of giving the character of a servant. Edmondson v. Stephenson, B. N. P. 8; Weatherstone v. Hawkins, 1 T. R. 110; Patteson v. Jones, 8 B. and C. 578 (b); Child v. Affleck, 9 B. and C. 403 (c).

{ *611 ] *How far the publication of the proceedings of a court of justice correctly given, containing a libel upon the character of an individual, and published by a third person not connected with the proceedings, and without any justification for the act, is criminally punishable, does not appear to be satisfactorily settled (1). See Curry v. Walter, 1

Esp. 456; 1 B. and P. 525; Wright's case, 8 T. R. 298; Stiles v. Nokes, 7 East, 504; Fisher's case, 2 Campb. 563; Lewis v. Clement, 3 B. and A. 702 (d); Lewis v. Walter, 4 B. and A. 613 (e); Duncan v. Thwaites, 3 B. and C. 583 (ƒ); Flint v. Pike, 4 B. and C. 476, 481 (g); Roberts v. Brown, 10 Bing. 528 (h).

It is however decided that the publication of preliminary or ex parte proceedings in a court of justice, cannot be justified, as the publication of depositions before a justice of the peace on a charge of murder; Lee's case, 5 Esp. 123; or the proceedings of a coroner's inquest, Fleet's case, 1 B. and A. 379, or proceedings before a corporation commissioner. Charlton v. Watton, 6 C. and P. 385 (i).

So where, on showing cause against a rule for a criminal information, for publishing a blasphemous and seditious libel, it was urged that it was merely the report of a judicial proceeding; yet the court held, that if the statement contained any thing blasphemous, seditious, indecent, or defamatory, the defendant had no right to publish it, though it had actually taken place in a court of justice. Carlisle's case, 3 B. and A. 167 (k).

Where a libel stated that there was a riot at C., and that a person fired a pistol at an assemblage of persons, and upon this imputed neglect of duty to the magistrates; Patteson, J., held, that on the trial of a criminal information for this libel on the magistrates, the defendant's counsel, with a view of showing that the libel did not exceed the bounds of free discussion, could not go into evidence to prove that there was in fact a riot, and that a pistol was fired at the people. Brigstock's case, 6 C. and P. 184 (l).

Statute 32 Geo. 3, c. 60.] By Mr. Fox's act, (the 32 Geo. 3, c. 60,) reciting, that doubts had arisen whether on the trial of an indictment or information for the making or publishing of a libel, where an issue or issues are joined between the king and the defendant or defendants on the plea of not guilty pleaded, it be competent to the jury impanneled to try the same, to give their verdict upon the whole matter in issue, it is (by

(1) Commonwealth v. Blanding, 3 Pick. 304. State v. Leer, 2 Const. Rep. 809. Thomas v. Croswell, 7 Johns. 264. Clark v. Binney, 2 Pick. 113.

(a) Eng. Com. L. Rep. xxv. 537. (b) Id. xv. 303. (c) Id. xviii. 405. (d) Id. v. 427. (e) Id. vi. 538. (ƒ) Id. x. 190. (g) Id. 382, 384. (h) Id. xxv. 224. (i) Id. 450. (k) Id. v. 252. (1) Id. xxv. 346.

sec. 1.) declared and enacted, that on every such trial the jury sworn to try the issue, may give a general verdict of not guilty upon the whole matter put in issue upon such indictment or information, and shall not be required or directed by the court or judge, before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication, by such defendant or defendants, of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information. By sec. 2, it is provided, that on every such trial the court or judge, before whom such indictment or information shall be tried, shall according to their or his discretion, give their or his opinion or *direction to the jury on the matter in issue be- [ *612] tween the king and the defendant or defendants, in like manner as in other criminal cases. By sec. 3, it is provided, that nothing in the act contained shall extend, or be construed to extend, to prevent the jury from finding a special verdict, in their discretion, as in other criminal cases. And by sec. 4, in case the jury shall find the defendant or defendants guilty, it shall and may be lawful for the defendant or defendants to move an arrest of judgment on such ground and in such manner as by law he or they might have done before the passing of the act (1).

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Maintenance-nature of the offence.] Maintenance signifies an unlawful taking in hand or upholding of quarrels or sides, to the disturbance or hindrance of common right. Hawk. P. C. b. 1, c. 83, s. 1. It may be either with regard to matters in suit, or to matters not in legal controversy. Id. s. 2. It is an offence punishable at common law with fine and imprisonment, and is forbidden by various statutes. 1 Ed. 3, st. 2, c. 14; 20 Ed. 3, c. 4; 1 R. 2, c. 4; 32 Hen. 8, c. 9, s. 3.

According to the old authorities, whoever assists another with money to carry on his cause, or retains one to be of counsel for him, or otherwise bears him out in the whole or any part of his suit, or by his friendship or interest saves him that expense which he might be otherwise put to, or gives evidence without being called upon to do so, or speaks in another's cause, or retains an attorney for him, or being of great power and interest says publicly that he will spend money to labor the jury, or stand by the (1) See People v. Croswell, 3 Johns. Cas. 337.

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