made in the libel, but not that the libel is in fact true. (R. v. Burdett, 4 B. & Ald. 314; R. v. Halpin, 9 B. & C. 65; 4 M. & R. 8; R. v. Newman, 17 J. P. 84.) Or they may contain general evidence of good character, or disclaim any personal malice against the prosecutor (R. v. Tanfield, 42 J. P. 423), or show that the defendant voluntarily stopped the sale of the book complained of as soon as proceedings were commenced (R. v. Williams, Lofft, 759), or any other circumstance showing provocation by the prosecutor or an absence of malice in the defendant. But the defendant should be careful not to attack the character of the prosecutor or his witnesses, or impugn the justice of the verdict, lest he thereby aggravate his original offence. Blackburn, J., in R. v. Shimmens, 34 J. P. 308, refused to receive a memorial in favour of the defendant, which was not on affidavit.

If, in the interval since the verdict, the defendant has republished the libel, or continued its sale, or been guilty of other misconduct, the prosecutor may file affidavits in aggravation of punishment. (See R. v. Withers, 3 T. R. 428.) As to the procedure when the defendant is brought up for judgment, see R. v. Bunts, 2 T. R. 683. The defendant must be personally present, if his state of health will permit. (R. v. Ryder-Burton, 38 J. P. 758; R. v. Kinglake, W. N. 1870, p. 130.) If he has absconded, judgment apparently cannot be pronounced; all the Court can do is to estreat the recognisances. (R. v. Chichester, 17 Q. B. 504, n.; R.v. Elizabeth Williams, W. N. 1870, p. 120.) The judge in passing sentence will consider whether the guilt of the defendant is aggravated or mitigated by any plea of justification which he may have placed on the record, and by the evidence given to prove or to disprove the same. (6 & 7 Vict. c. 96, s. 6; R. v. Newman, 17 J. P. 84.)

Where judgment has been suffered by default, both parties should state their case on affidavit. If there is any matter in the prosecutor's affidavit which the defendant could not be expected to have come prepared to answer, he will be allowed an opportunity of answering it on a future day. (R. v. Archer, 2 T. R. 203, n.; R. v. Wilson, 4 T. R. 487.)

As to the sentence that may be passed in the case of a defamatory libel at common law, see ante, p. 430; under the various statutes, pp. 430—432; in the case of a blasphemous libel, p. 446; an obscene libel, p. 473; a seditious libel, p. 482. If the prisoner be found guilty of publishing a blasphemous or seditious libel, all copies found in his possession may be seized and destroyed by an order of the Court under 60 Geo. III. & 1 Geo. IV. c. 8, ss. 1, 2.

Costs.

In the case of an indictment or information by a private prosecutor for the publication of a defamatory libel, if judgment shall be given for the defendant, he shall be entitled to recover his costs from the prosecutor. (6 & 7 Vict. c. 96, s. 8.) Such costs must first be taxed by the proper officer of the Court before which the indictment or information is tried; and this should be done before the next commission of assize issues, if the case was tried at the Assizes, else the clerk of assize will be functus officio. His taxation cannot be reviewed by the King's Bench Division (R. v. Newhouse, 1 L. & M. 129; 22 L. J. Q. B. 127; 17 J. P. 57); such at least was the practice before the Judicature Act, 1873; and it does not appear to be affected by sect. 16 of that Act, which makes Courts of Oyer and Terminer and Gaol Delivery part of the High Court. (See R. v. Dudley and Stephens, 14 Q. B. D. at pp. 280, 560.) No special order to tax is necessary. (R. v. Sully, 12 J. P. 536.) In the case of an information, the record being in the King's Bench Division, execution may issue on taxation in the ordinary way. (R. v. Latimer, 15 Q. B. 1077; 20 L. J. Q. B. 129; 15 Jur. 314.) But in the case of an indictment not in the King's Bench Division, there is no way of issuing execution for such costs; they must be recovered therefore by an ordinary action at law. (Richardson v. Willis, L. R. 8 Ex. 69; 42 L. J. Ex. 15, 68; 27 L. T. 828; 12 Cox, C. C. 298, 351.) If the grand jury throw out the bill, the Court has, unfortunately, no power to give the defendant his costs; this is a casus omissus in drafting sect. 8. (R. v. Murry, 57 J. P. 136.)

So if a defendant pleads a justification and the issue be found for the prosecutor, the prosecutor may recover from the defendant the costs which he has sustained by reason of such plea, whatever be the result of any other issue. (6 & 7 Vict. c. 96, s. 8.)

But this section does not apply to Crown prosecutions, or to any proceedings for blasphemous, obscene, or seditious libels. And there is no provision enabling a prosecutor to recover the general costs of the prosecution. If, however, a fine be imposed on the defendant as part of his sentence, the prosecutor may sometimes, by memorialising the Treasury, obtain a portion of the fine towards the payment of his costs.

Where an indictment is removed by certiorari into the King's Bench Division, the party applying for the writ (not being the Attorney-General) must give security for all subsequent costs.

Where a municipal corporation has directed a prosecution for a

libel on one of its officers, the costs cannot be paid out of any borough fund. (R. v. Mayor, &c., of Liverpool, 41 L. J. Q. B. 175; 20 W. R. 389; 26 L. T. 101.) Where the directors of a company have instituted a prosecution for a libel on themselves, the costs should not be paid out of the assets of the company, though the directors will not, as a rule, be ordered to repay any costs already so paid. (Pickering v. Stephenson, L. R. 14 Eq. 322; 41 L. J. Ch. 493; 20 W. R. 654; 26 L. T. 608.) But where the libel is an attack upon the company itself, and calculated to injure its credit or diminish its business, the costs of a prosecution may rightly be paid out of the funds of the company. (Studdert v. Grosvenor, 33 Ch. D. 528; 55 L. J. Ch. 689; 34 W. R. 754; 55 L. T. 171; 50 J. P. 710; and see Breay v. Royal British Nurses' Association, (1897) 2 Ch. 272; 66 L. J. Ch. 587; 46 W. R. 86; 76 L. T. 735; ante, p. 425.)

CHAPTER XXIX.

PROCEEDINGS BY WAY OF CRIMINAL INFORMATION.

Motion for the Order Nisi.

AN ex officio information is filed by the Attorney-General of his own motion. All other criminal informations are filed by the King's coroner and attorney, formerly called the Clerk of the Crown; he may not file any information without an express order of the King's Bench Division granted in open Court. (4 Will. & Mary, c. 18, s. 1, Crown Office Rules, 1886, r. 46.) Counsel must move the Court upon proper affidavits for an order nisi calling upon the defendant to show cause why an information should not be granted. The motion must be made within a reasonable time after the offence complained of. (Ib. r. 48.) The former rule was that the application must be made within two terms after the publication, or at all events within two terms after the libel came to the knowledge of the prosecutor. The prosecutor, too, must come to the Court in the first instance, and must not have attempted to obtain redress in other ways. (R. v. Marshall, 4 E. & B. 475; Ex parte Pollard, (1901) 17 Times L. R. 773; ante, p. 438.) He must submit himself to the Court, and consent to waive his civil remedy by action, if need be, and must be prepared to go through with the criminal proceedings to conviction. It is not necessary to obtain the order of a judge at Chambers before moving the Court; sect. 3 of the Newspaper Libel and Registration Act, 1881 (now repealed), did not apply to any application for a criminal information whether ex officio or otherwise (Yates v. The Queen, 14 Q. B. D. 648 ; 54 L. J. Q. B. 258; 33 W. R. 482; 52 L. T. 305; 49 J. P. 436; 15 Cox, C. C. 686); and the same practice prevails under the provision which was substituted for it, sect. 8 of the Law of Libel Amendment Act, 1888.

The affidavits on which the application is based should be carefully drawn up; as no second application may be made on amended or additional affidavits. (R. v. Franceys, 2 A. & E. 49.) They should in the first place prove the publication by the defendant. Mere prima facie evidence of this will not be sufficient. (R. v. Baldwin,

8 A. & E. 168; R. v. Willett, 6 T. R. 294.) There must be before the Court legal evidence sufficient to justify a grand jury in returning a true bill for the same offence.

Thus, in R. v. Stanger, L. R. 6 Q. B. 352; 40 L. J. Q. B. 96; 19 W. R. 640; 24 L. T. 266, the affidavits merely showed that the annexed copy of the Newcastle Daily Chronicle, the newspaper containing the libel, had been purchased from a salesman in the office of that paper, and that in a footnote at the end of that copy the defendant was stated to be the printer and publisher of the newspaper, and that the relator believed him so to be; it was held that this was no legal evidence of publication, and the rule was discharged. Similarly it was held that the mere fact that the libel has printed on it the words: "Romney, printer" is ' in itself no proof that Romney was the printer. (R. v. Williams and Romney, 2 L. J. K. B. (Old S.) 30.) If the defendant keeps an office or shop at which copies of the paper can be purchased, then an affidavit by a person who purchased a copy of the libel at such office or shop will be the best evidence of a publication by the defendant, and also that most easily obtainable. That the purchase was made expressly for the purpose of enabling such affidavit to be sworn is no objection. (Duke of Brunswick v. Harmer, 14 Q. B. 189; 19 L. J. Q. B. 20; 14 Jur. 110; 3 C. & K. 10.)

It is a doubtful point whether the omission of such strict proof of publication can subsequently be supplied by the admissions, if any, in the defendant's affidavits filed to show cause against the order being made absolute. The Courts have generally refused to look at defendant's affidavits to supply a defect in those of the prosecutor. (R. v. Baldwin, 8 A. & E. 169.) For the rule is that the prosecutor cannot on the argument refer to any document which does not appear on the face of the order itself to have been read at the first application. (R. v. Woolmer and another, 12 A. & E. 422.) But Lord Kenyon, in R. v. Mein, 3 T. R. 597, and Blackburn, J., in R. v. Stanger, L. R. 6 Q. B. 355; 40 L. J. Q. B. 96; 19 W. R. 640; 24 L. T. 266, expressed an opinion that the Court might look at any evidence lawfully before them for any purpose they pleased.

The prosecutor must also swear to his innocence in all particulars of the charge contained in the libel. (R. v. Webster, 3 T. R. 388.) For although at the trial of the information when granted truth will be no defence, except under Lord Campbell's Act, still it is "sufficient cause to prevent the interposition of the Court in this extraordinary manner"; the Court will leave the prosecutor to proceed by way of indictment in the ordinary course. (R. v. Bickerton, 1 Stra. 498; R. v. Draper, 3 Smith, 390.)

O.L.S.

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