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been holden that the truth of a libel cannot be given in evidence by way [*10] of justification; because, * if the person charged with any crime be

guilty, he ought to be proceeded against in a legal way, and not re-
flected
upon

in this manner.
However, where the plaintiff having brought an action against the de-
fendant for saying, “ He was a buggerer, and that he caught him in the
fact,” after proving the words, gave in evidence the defendant's saying at
another time, that“ He was guilty of sodomitical practices.” Mr. Jus-
tice Burnet, upon considering the case of Smith and Richardson, per-
mitted the defendant to give in evidence the truth of those words, for
the action not being brought for speaking them, the defendant had no
opportunity of pleading that they were true; and therefore, as the plain-
tiff has proved the speaking of them in aggravation, the defendant ought
to be permitted to shew they were truc in mitigation.-Collinson v.
Loder, Oxon. 1750.

The defendant may by way of justification plead that the words were spoken by him as counsel in a cause, and that they were pertinent to the matter in question ; (a) or he may justify the speaking of them through concern, or the reading of them as a story out of a history; or he

may shew by the dialogue, that they were spoken in a sense not defamatory; or he may give these matters in evidence upon the general issue, for they prove him not guilty of the words maliciously. (Brooke v. Montague, M. 1605. Cro. Jac. 91. Cromwell's Ca. T. 1578. 4 Co. 13.) But in an action brought by the master of a ship against a merchant at Bristol, for saying his vessel was seized and he put into prison at for running corn, Lord C. J. Lee held, that proof of the defendant's having heard it read out of a letter, and that he only reported the story, was no justification; but that every person was answerable for the slander he reported of another, and the jury accordingly gave £ 150 damages. (b) Anon. 1751.

Note, If the justification be local, as that he stole plate at Oxon, the trial ought regularly to be in the same county in which the justification arises. (Jenning v. Hunkin, H. 26 & 27 Car. 2. 2 Lev. 121.) - But this would be aided after a verdict by 16 & 17 Car. 2. c. 8.-Cruft v. Boyle, E. 21 Car. 2. 1 Saund. 247. (c)

Note,

(a) Or that they were written or spoken in his defence, to a legal suit. Astley v. Younge, 2 Bur. 812.

(b) The words of a libel are not to be taken in a more lenient or a more severe sense, but in the sense

which fairly belongs to them, and which they were intended to convey. R. v.

Lambert & al. 2 Camp. .403.

(C) 32 Geo. 3. c. 60. On every trial of an indictment or informa

Note, By 21 Jac. 1. c. 16, if the damages be under 40s. the plaintiff shall have no more costs than damages ; but it has been said, that the jury are not bound by this statute, and therefore may give £10 costs where they gave but 10d. damage. However, it does not extend to such cases, where the * consequential damage is the gist of the action ; (a) as [ *11 ] for calling a woman whore per quod she lost her customers. (Browne v. Gibbons, H. 1702. 1 Salk. 206. 2 Ray. 831.) So for calling a man thief, and causing him to be arrested, if the defendant be found guilty of both.-- Topsall v. Edwards, M. 1629. Cro. Car. 163.

But it has been holden, that where the words are of themselves actionable, and special damages are laid by way of aggravation, though they be proved, yet if the damages recovered are under 40s. there shall

tion for the making and publishing a So may one newspaper charge an-
libel, the jury may give a general other with scurrility, but he must
verdict of guilty or not guilty upon not assert that the latter is low in
the whole matter put in issue, and circulation. Heriot v. Stuart, 1 Esp.
shall not be directed by the judge to 437.
find defendant guilty, merely on And it is not the subject of a cri.
proof of the publication of the paper minal or civil proceeding to publish
charged to be a libel, and of the a true account of what passes in a
sense ascribed to the same in such court of justice or in parliament,
indictment or information. But the though injurious to the character of
court shall, according to direction, an individual. Carey v. Walter, 1 Bos.
give opinion and directions to the and Pull.525; or Curry v. IValter, I
jury on the matter in issue, as in Esp. N. P. C. 457. Rer v. Wright,
other criminal cases. The jury may 8 T. Rep. 293. Jekyll v. Moore, 2
find a special verdict, and in case Bos. and Pull. N. R. 341. Carr v.
they shall find defendant guilty, de Jones, 3 Smith, 491.503 ; and 7 East,
fendant may move in arrest of judg. 493. S. C. nom. Stiles v. Nokes.
ment.

In Curry v. Walter, i Esp. N. P.
Furthermore, upon this subject it C. 457, it was ruled that the justi-
has been held, ihai an advertisement fication of the defendant might be
inserted in a newspaper, bond fide given in evidence under the general
with a view of investigating a fact, issue; but the court of C. P. inclined
in which a party making it is inte- to think that the facts should have
rested, is not libellous, though inju- appeared on the record. S.C. Bos.
rious to the character of another. and Pull, 525.
Delaney v. Jones, 4 Esp. N. P. C. (a) In Baker v. Ilearne, in B. R.
191.

in H. 1767, this point was argued by Also, that it is not actionable to Dunning for plaintiff, and Ashhurst make a fair critique upon a com

for defendant, but the distinction was position, though it bring the author not controverted by plaintiff's couninto ridicule. Tabart v. Tipper, 1 sel, the court being of opinion that Camp. 350.

the words were actionable, as reflectAlso, that a newspaper may fairly ing on plaintiff in his way of trade ; comment on any species or place of yet they allowed no more costs than public amusement, but it must be damages, the damages being under done without malice against the 40s. notwithstanding the special daproprietors. Dibdin v. Swan et al, mages laid in the declaration. (MS. 1 Esp. N. P.C. 28.

note of Sir Alan Chambre.) с

be

. [Book I. be no more costs than damages; for it is properly an action for words within the statute 21 Jac. 1. c. 16.--Baker v. Hearne, B. R. H. 76.3. Raym. 1588. (a)

By the same statute, the action must be commenced in two years after the words spoken ; but note, this does not extend to Scandalum Magnatum, (Sherwin v. Sherwin's Executors, T. 1630, Litt. Rep. 342.) nor to cases where the special damage is the gist of the action. But where the words are of themselves actionable, special damage will not take them out of the statute.--Saunders v. Edwards, M. 1662. 1 Sid. 95.(6)

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(a) A verdict with nominal da- prosecutor (the plaintiff) is highly mages, in an action on the case, car- injurious to the service. ries all the costs. Sevignac v. Roome, Neither is it actionable to ridicule 6 T. Rep. 125.

and caricature an author, with respect (b) In actions of slander, battery, to his literary character only. Carr trespass, &c. though the plaintiff v. Hood, 1 Camp. 355 (n). may reasonably expect large da- But it is actionable to impute to a mages, special bail cannot be had bookseller the publication of a silly unless by order of court, and the poem, fabricated by the defendant as process is marked for special bail; a specimen of the plaintiff's producnor is it required in actions of ac- tions. Tabart v. Tipper, i Camp. count and covenant, except it be to 352. In which case it is laid down, pay money; nor against heirs, exe- that where separate passages of a lie cutors, &c. for the debt of the tes- bel are set out in the declaration, tator, unless they have wasted the they should be described as torming testator's goods. i Danv. Abr. 681: distinct parts; but when the passages

Furthermore as to the cases in are not distinguished, if the interwhich this action has been held vening parts do not affect the sense, maintainable, it was ruled in Jekyll the omission is immaterial. v. Moore, 6 Esp. N. P.C. 63. 2 Bos. Note, The foregoing are some of and Pull. N. R. 241, that no action the principal cases of libel, upon lies against the president of a court which civil actions have been brought, martial for publishing a sentence in but there are others of a similar nathe usual form, in which, after ture, for which the injured party had stating the honourable acquittal of sought his remedy by indictment, and the prisoner, it is declared that the which do not fall within the compass charges are groundless and malici. of this chapter. ous, and that the conduct of the

CHAPTER II.

OF MALICIOUS PROSECUTIONS.

IN many cases an action will lie for a malicious prosecution : however, there is a great difference between a civil suit and an indictment. It is not actionable to bring an action though there be no good ground for it,

because

because it is a claim of right, and the plaintiff finds pledges to prosecute, and is amerciable pro falso clamore, and is liable to costs; but an action on the case will lie for suing the plaintiff in the spiritual court sine aliquâ causâ, and causing him to be excommunicated false, fraudulenter et malitiose, without giving him any notice, per quod he was put to great costs. (Sarille v. Roberts, i Salk. 14. 1 Raym. 374. Carth. 416.) (a) If a man sue in the spiritual court for a matter which appears by his libel not to be suable there, and over which that court has no jurisdiction, an action on the case will lie ;(b) for it is a suit for vexation : but not if the suit be for a thing demandable there by any thing which appears by the libel, and barred only by the defendant's plea or by collateral matter : as where instituted * for tithe of wood, which is timber. (Water- [ * 12 ] house v. Baud, T. 1635. Cro. Jac. 153.) So an action will lie if one who has a cause of action to a small sum, or has no cause of action at all, maliciously sue the plaintiff, with intent to imprison him for want of bail, (c) or do him some special prejudice ; but then it is not enough to declare generally, but he must shew the special grievance; he must set out, that being indebted to the defendant in so much, he sued out such a writ for so much more, on purpose to hold him to bail. (Skinner v. Gunton, E. 21 Car. 2. 1 Saund. 228. i Vent. 12. S. C. nom. Skinner v. Gunter.) And if the writ be not returned, he must have a rule on the sheriff to return it, that he may have it to give in evidence. (Robins v. Robins, Salk. 15.) But if a stranger procure another to sue me causelessly, I may have an action against him generally.—Saville v. Roberts, sup. (d)

(a) In this case Lord Holt said Hocking v. Matthews, 1 Vent. 86. there were three sorts of actions, any i Lev. 292. S. C. nom. Hoskins v. of which would be sufficient ground Matthews. to support this action. 1st, The da- (c) Vide Skinner v. Gunton, 1 mage to a man's fame, as if the mat- Saund. 228. Also Daw v. Swaine, ter whereof he is accused be scan- 1 Sid. 424, in which case plaintiff was dalous; 2d, where a man bas been held to bail for £5000, when the debt put in danger to lose his life, or limb, was hut £40. But this action lies not or liberty, 3d. damage to a man's for an arrest without cause, unless property, as where he is obliged to plaintiff be held 10 excessive bail. expend money in necessary charges Neal v. Spencer, 12 Mod. 257. Nor to acquit himself of the crime of for a detainer in prison after the debt which he is accused. Per Holt, C.J. is paid, where defendant neglected to in Saville v. Roberts, 1 Raym. 374. send a discharge, for that was a mere

(6) So if a man sue in any court nonfeasance. Schiebil v. Fairbain, 1 that has no cognizance of the mat- Bos, and Pull. 388; and malice must ter. Goslin v. Wilcock, 2 Wils. 302. appear to maintain this action. Gib. So for maliciously suing a man in son v. Chaters, 2 Bos. and Pull. 129. the Ecclesiastical court, and causing (d) Vide Thurston v. Ummons, him to be taken on an excom. cap. Mar. 27. S. P. without notice, this action lies.

ca

Waterer

Waterer brought an action on the case against Freeman for suing a second fieri facias, and having his goods taken in execution thereupon, after goods taken upon a former fieri facias. The defendant having been found guilty, moved in arrest of judgment, because it was a legal suit. Hobart, C.J. delivered the opinion of the court for the plaintiff, but said, if the defendant had not known of the cattle first taken, he had not been liable to the action ; but now to the main point (says Lord Hobart), We hold, that if a man bring an action upon a false surmise in a proper court, he cannot bring an action against him and charge bim with it as a fault directly, as if the suit itself was a wrongful act; and cited 43 E. 3. 33. The plaintiff brought an action of false imprisonment, the defendant pleaded that he caused him to be imprisoned upon a statute; the plaintiff replied, there was a day given upon defeasance to pay, and that he paid before the day; and yet it was ruled against the plaintiff, because he was imprisoned by due course of law. (Waterer v. Freeman, M, 15 Jac. 1. Hob. 206. 266.)—But on the contrary, if you charge me with a crime in a court no way capable of the cause, I shall have an action for it. (Buckley v. Wood, M. 33 & 34 Eliz. 4 Co. 14.) So if a man sue me in the spiritual court for a mere temporal cause. Now, to the principal case; if a man sue me in a proper court, yet if his suit be utterly without ground of truth, and that certainly known to himself, I may have case against him for the undue vexation and damage that he putteth me unto by bis ill practice. But two cautions are to be observed to maintain actions in these cases, 1. The new action must not be brought before the first be determined; because till then it cannot appear that the first was unjust. (Farrel v. Nun, B. R. T. 5 G. 3.

S. P. Lewis v. Farrell, i Str. 114. S. P.) (a) 2. That there must be [ * 13 ] not only a thing done amiss, but also a damage, either * already fallen

upon the party or else inevitable; and therefore if a man forge a bond in my name, I can have no action till I am sued upon it.

Case for that the defendant machinans to deprive him of his liberty, absque aliqua probabili causa prosecutus fuit quoddam breve de privi

(a) Vide Parker v. Langley, 10 the suit should be heard and deterMod. 209. Fisher v. Bristow, 1 Dougl. mined before this action can be 205. 215. Morgan v. Hughes, 2 T. brought, for sometimes it is brought R. 225. The want of this averment, for vexation only, and without any however, will be cured by a verdict. ground, and a nonsuit follows. NeverSkinner v. Gunton, I Saund. 228, be- theless the party injured shall have cause it will be presumed that it has this action. Esp. N. P. Dig. 527. been proved at the trial. Per Denison, Vide etiam Co. Lit. 161 (a), n. 4, J. in Panton v. Marshall, 28 Geo. 2. for the circumstances under which MS. Ca.

this action will lic, But it is not always necessary that

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