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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, ) 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 (6). 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 hin. 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 o. Osgood, 3 Pick. 379. Gray o. Pentland, 2 S. & R. 23. Lewis o. Few, 5 Johns. 1. Harris v. Huntingdon & al., 2 Tyler, 129; 1 Tyler, 164. Thorn o. Blanchard, 5 Johns. 508.
(a) Eng. Com. L. Rep. xxii. 356. (6) 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. aud 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 (6); Child v. A Meck, 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 . Thwaites, 3 B. and C. 583 (S); 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 ; Patieson, 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 o. Blanding, 3 Pick. 304. State o. Leer, 2 Const. Rep. 809. Thomas d. Croswell, 7 Johns. 264. Clark 0. Binney, 2 Pick. 113.
(a) Eng. Com. L. Rep. xxv. 537. (6) Id. xv. 303. (c) Id. xviii. 405. (d) Id. v. 427. (6) Id. vi. 538. (f) Id. X. 190. (g) Id. 382, 384. (h) Id. xxv. 224. (i) Id. 450. (k) Id. v. 252. (1) Id. xxy. 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
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).
Poverty Nature of the offence
Counsel and attornies
- 613 Embracery
613 . 613 - 614 . 614
MAINTENANCE, CHAMPERTY, AND EMBRACERY.
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.
party while his cause is tried, this is maintenance. Hawk. P. C. b. 1, c. 33, s. 5, 6, 7. It may be doubted, however, whether, at the present day, [ *613 ] some of *these acts would be held to amount to an indictable offence, unless they were plainly accompanied by a corrupt motive. A bare promise to maintain another is not in itself maintenance, unless it be so in respect of the public manner in which, or the power of the person by whom it is made. Hawk. P. C. b. 1, c. 83, s. 8. So the. mere giving of friendly advice, as what action it will be proper to bring to recover a certain debi, will not amount to maintenance. Ibid. s. 11.
Maintenance—justifiable—in respect of interest.] Those who have a certain interest, or even bare contingent interest, in the matter in variance, may maintain another in an action concerning such matter; as in the case of landlord and tenant, trustee and cestui que trust. Hawk. P. C. b. 1, c. 83, s. 19, 20, 21. So where A. at the request of B. defended an action brought for the recovery of a sum of money, in which B. claimed an interest, upon B. undertaking to indemnify him from the con.sequences of such action, this was held not to be maintenance. Williamson v. Henley, 6 Bingh. 299 (a). So wherever persons claim a common interest in the same thing, as in a way, common, &c., by the same title, they may maintain one another in a suit relating to the same. Hawk. P. C. b. 1, c. 83, s. 24.
Maintenance-justifiable—master and servant.] A master may go with his servant to retain counsel, or to the trial and stand by him, but ought not to speak for him ; or if arrested may assist him with money. Hawk. P. C. b. 1; c. 83, s. 31, 32. So a servant may go to counsel on behalf of his master, or show his evidences, but cannot lawfully lay out his own money to assist his master. Ibid. s. 34.
Maintenance-justifiable-affinity.) Whoever is in any way of kin or affinity to either of the parties, may stand by him at the bar, and counsel or assist him ; bụt unless he be either father or son, or heir apparent, or the husband of such an heiress, he cannot justify laying out money in his
Hawk. P. C. b. 1, c. 83, s. 26.
Maintenance—justifiable-poverty. Any one may lawfully give money to a poor man, to enable him to carry on his suit (1). Hawk. P. C. b. 1, c. 83, s. 36.
Maintenance-justifiable—counsel and attornies.] Another exception to the general rule with regard to maintenance is the case of counsel and attornies. But no counsel or attorney can justify the using of any deceitful practice in the maintenance of a client's cause, and they are liable to be severely punished for any misdemeanors of this kind. Hawk. P. C. b. 1, c. 83, s. 31. And by stat. West. 1, c. 29, if any serjeant, pleader, or other, do any manner of deceit or collusion in the King's court, or consent to it, in deceit of the court, or to beguile the court or the party, he shall be imprisoned for a year and a day. Procuring an attorney to ap
(1) Perine o. Dunn, 3 Johns. Ch. Rep. 508. State v. Chitty, 1 Bailey, 401.
(a) Eng: Com. L. Rep. xix. 87.
pear *for a man, and to confess judgment without a warrant, has been held within this statute. Hawk. P. C. b. 1, c. 83, s. 36. So bring ing a precipe against a poor man, knowing he has nothing in the land, on purpose to get the possession from the true tenant. Id. s. 35.
Champerty.] Champerty is a species of maintenance, accompanied by a bargain to divide the matter sued for between the parties, whereupon the champertor is to carry on the suit at his own expense. 4 BI. Com. 135; 1 Russell, 179. Champerty may be in personal as well as in real actions ; Hawk. P. C. b. 1, c. 84, s. 5; and to maintain a defendant may be champerty. Ibid. s. 8.
By 31 Eliz. c. 5, the offence of champerty may be laid in any county, at the pleasure of the informer.
Various cases have occurred in modern times, in which the doctrine of champerty has come in question. Where a bill was filed to set aside an agreement made by a seaman, for the sale of his chance of prize-money, Sir William Grant, M. R. expressed an opinion that the agreement was void from the beginning, as amounting to champerty, viz. the unlawful maintenance of a suit, in consideration of a bargain for a part of the thing, or some profit out of it. Stevens v. Bagwell, 15 Ves. 139. So in a late case it was held, that an agreement to communicate such information as should enable a party to recover a sum of money by action, and to exert influence for procuring evidence to substantiate the claim, upon condition of receiving a portion of the sum recovered, was illegal. Stanley v. Jones, 7 Bingh. 369(a); 5 Moore and P. 103 ; see Potts v. Sparrow, 6 C. and P. 749(6).
Embracery.) Embracery, likewise, is another species of maintenance. Any attempt to corrupt, or influence, or instruct a jury, or to incline thern to be more favorable to one side than the other, by money, promises, letters, threats, or persuasions, except only by the strength of the evidence, and the arguments of the counsel in open court, at the trial of the cause, is. an act of embracery; whether the jurors give any verdict or not, and whether the verdict given be true or false (1). Hawk. P. C. b. 1, c. 85, s. 1. The giving money to a juror after the verdict, without any preceding contract, is an offence savoring of embracery ; but it is otherwise of the payment of a juror's travelling expenses. Id. s. 3. Embracery is punishable by fine and imprisonment. Id. s. 7.
Analogous to the offence of embracery is that of persuading, or endeavoring to persuade, a witness from attending to give evidence, an offence punishable with fine and imprisonment. It is not material that the attempt has been unsuccessful. Hawk. P. C. b. 1, c. 21, s. 15; Lawley's case, 2 Str. 904 ; 1 Russell, 184.