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 reflected upon in this manner. However, where the plaintiff having brought an action against the defendant 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. Justice Burnet, upon considering the case of Smith and Richardson, permitted 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 plaintiff has proved the speaking of them in aggravation, the defendant ought to be permitted to shew they were true 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 ruuning 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.-Craft v. Boyle, E. 21 Car. 2. 1 Saund. 247. (c) · (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 Note, 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 jay 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 libel, the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue, and shall not be directed by the judge to find defendant guilty, merely on proof of the publication of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information. But the court shall, according to direction, give opinion and directions to the jury on the matter in issue, as in other criminal cases. The jury may find a special verdict, and in case they shall find defendant guilty, defendant may move in arrest of judg ment. Furthermore, upon this subject it has been held, that an advertisement inserted in a newspaper, bond fide with a view of investigating a fact, in which a party making it is interested, is not libellous, though injurious to the character of another. Delaney v. Jones, 4 Esp. N. P. C. 191. Also, that it is not actionable to make a fair critique upon a composition, though it bring the author into ridicule. Tabart v. Tipper, 1 Camp. 350. Also, that a newspaper may fairly comment on any species or place of public amusement, but it must be done without malice against the proprietors. Dibdin v. Swan et al, 1 Esp. N. P. C. 28. C So may one newspaper charge another with scurrility, but he must not assert that the latter is low in circulation. Heriot v. Stuart, 1 Esp. 437. And it is not the subject of a criminal or civil proceeding to publish a true account of what passes in a court of justice or in parliament, though injurious to the character of an individual. Carey v. Walter, 1 Bos. and Pull. 525; or Curry v. Walter, 1 Esp. N. P. C. 457. Rex v. Wright, 8 T. Rep. 293. Jekyll v. Moore, 2 Bos. and Pull. N. R. 341. Carr v. Jones, 3 Smith, 491. 503; and 7 East, 493. S. C. nom. Stiles V. Nokes. In Curry v. Walter, 1 Esp. N. P. C. 457, it was ruled that the justification of the defendant might be given in evidence under the general issue; but the court of C. P. inclined to think that the facts should have appeared on the record. S. C. Bos. and Pull. 525. (a) In Baker v. Hearne, in B. R. in H. 1767, this point was argued by Dunning for plaintiff, and Ashhurst for defendant, but the distinction was not controverted by plaintiff's counsel, the court being of opinion that the words were actionable, as reflecting on plaintiff in his way of trade; yet they allowed no more costs than damages, the damages being under 40s. notwithstanding the special damages laid in the declaration. (MS. note of Sir Alan Chambre.) be 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. 7 G. S. 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. 1650, Litt. Rep. S42.) 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. (b) (a) A verdict with nominal da mages, in an action on the case, carries all the costs. Sevignac v. Roome, 6 T. Rep. 125. (b) In actions of slander, battery, trespass, &c. though the plaintiff may reasonably expect large damages, special bail cannot be had unless by order of court, and the process is marked for special bail; nor is it required in actions of account and covenant, except it be to pay money; nor against heirs, executors, &c. for the debt of the testator, unless they have wasted the testator's goods. 1 Danv. Abr. 681: Furthermore as to the cases in which this action has been held maintainable, it was ruled in Jekyll v. Moore, 6 Esp. N. P. C. 63. 2 Bos. and Pull. N. R. 241, that no action lies against the president of a court martial for publishing a sentence in the usual form, in which, after stating the honourable acquittal of the prisoner, it is declared that the charges are groundless and malicious, and that the conduct of the prosecutor (the plaintiff) is highly injurious to the service. Neither is it actionable to ridicule and caricature an author, with respect to his literary character only. Carr v. Hood, 1 Camp. 355 (n). But it is actionable to impute to a bookseller the publication of a silly poem, fabricated by the defendant as a specimen of the plaintiff's productions. Tabart v. Tipper, 1 Camp. 352. In which case it is laid down, that where separate passages of a libel are set out in the declaration, they should be described as torming distinct parts; but when the passages are not distinguished, if the intervening parts do not affect the sense, the omission is immaterial. Note, The foregoing are some of the principal cases of libel, upon which civil actions have been brought, but there are others of a similar nature, for which the injured party had sought his remedy by indictment, and which do not fall within the compass of this chapter. CHAPTER II. OF MALICIOUS PROSECUTIONS. IN many cases an action will lie for a malicious prosecution: how ever, 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. (Saville v. Roberts, 1 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. Bawd, T. 1635. Cro. Jac. 183.) 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. 1 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, may have an action against him generally.-Saville v. Roberts, sup. (d) I (a) In this case Lord Holt said there were three sorts of actions, any of which would be sufficient ground to support this action. 1st, The damage to a man's fame, as if the matter whereof he is accused be scandalous; 2d, where a man has been put in danger to lose his life, or limb, or liberty; 3d. damage to a man's property, as where he is obliged to expend money in necessary charges to acquit himself of the crime of which he is accused. Per Holt, C. J. in Saville v. Roberts, 1 Raym. 374. (b) So if a man sue in any court that has no cognizance of the matter. Goslin v. Wilcock, 2 Wils. 302. So for maliciously suing a man in the Ecclesiastical court, and causing him to be taken on an excom. cap. without notice, this action lies. Hocking v. Matthews, 1 Vent. 86. (c) Vide Skinner v. Gunton, 1 (d) Vide Thurston v. Ummons, Mar. 27. S. P. 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 him 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 his 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, 1 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 Mod. 209. Fisher v. Bristow, 1 Dougl. 205. 215. Morgan v. Hughes, 2 T. R. 225. The want of this averment, however, wih be cured by a verdict. Skinner v. Gunton, 1 Saund. 228, because it will be presumed that it has been proved at the trial. Per Denison, J. in Panton v. Marshall, 28 Geo. 2. MS. Ca. But it is not always necessary that the suit should be heard and determined before this action can be brought, for sometimes it is brought for vexation only, and without any ground, and a nonsuit follows. Nevertheless the party injured shall have this action. Esp. N. P. Dig. 527. Vide etiam Co. Lit. 161 (a), n. 4, for the circumstances under which this action will lie. |