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54 L. J. Q. B. 258; 33 W. R. 482; 52 L. T. 305; 15 Cox, C. C. 686; 49 J. P. 436.)

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 primâ 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 the relator believed him so to be; it was held that this was no legal evidence of publication, and the rule was discharged. 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 can at the argument refer to no 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 man

ner;" they 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.)

If there is no specific charge in the libel, no such affidavit is necessary (R. v. Williams, 5 B. & Ald. 595), and it has also been dispensed with in other special circumstances. But as a rule there must be a specific denial on oath of the particular charges, even where it is a duke that is aspersed. (R. v. Haswell and Bate, 1 Dougl. 387.) If a general charge be made and a specific instance alleged, the affidavit must expressly negative not only the general charge, but also the specific instance. (R. v. Aunger, 12 Cox, C. C. 407.)

The affidavits should be sworn with no heading or title. They should not contain irrelevant or improper matter; if the prosecutor abuses the alleged libeller or shows an animus against him, the court will very probably reject the application. (R. v. Burn, 7 A. & E. 190.)

The order nisi, if granted, should be drawn up "Upon reading" the alleged libel and the affidavits and all other documents to which it is desired to refer on the argument. It should be personally served on the defendant.

Argument.

The defendant now shows cause. He generally files affidavits in reply. It is open to him to maintain that the libel is true. (R. v. Eve and Parlby, 5 A. & E. 780; 1 N. & P. 229.) (See ante, p. 611.) He may also contend that the libel complained of did not apply to the relator. (R. v. Barnard, Ex parte Lord R. Gower, 43 J. P. 127, ante, p. 133.) This decision is perhaps to be regretted; as it opens a door by which a libeller may escape punishment, provided he is careful not to expressly name his victim in the first place, and not too scrupulous to swear a falsehood afterwards. The writer of a libel may richly deserve punishment although it may not be clear to whom he intended the libel to apply; and the court in granting a criminal information regards the interests of public morality and order rather than those of the individual prosecutor. (See 3 Times L. R. 255.)

If the order be discharged on the merits, the court generally gives the defendant his costs. And no second application may be made to the court, even upon additional affidavits (R. v. Smithson, 4 B. & Ad. 862), except in very peculiar circumstances, as where the only person who had made an affidavit on behalf of the defendant on the argument of the first order has since been convicted of perjury in respect of such affidavit. (R. v. Eve and Parlby, 5 A. & E. 780; 1 N. & P.

229.) But though the prosecutor cannot apply a second time for a criminal information, he can still prefer an indictment in the ordinary way (per Lord Denman, in R. v. Cockshaw, 2 N. & Man. 378); though he cannot as a rule bring an action (ante, p. 458).

Compromise.

Frequently, however, the defendant files exculpatory affidavits, apologizing to the prosecutor, withdrawing all imputations upon him, and entreating the mercy of the court. When this happens, the prosecutor is generally quite satisfied; he has obtained all he desired: and by no means courts the expense and notoriety of a prolonged criminal trial. But the court is not disposed on that account merely to allow the proceedings to drop, even at the request of the prosecutor; and in more than one recent case the Queen's Bench Division have compelled a reluctant prosecutor to take a rule in the interest of the public. Having invoked the aid of the criminal law, it is his duty not to abandon the proceedings merely because his own private purpose is attained. (See R. v." The World," 13 Cox, C. C. 305.)

Trial and Costs.

If the order be made absolute, the prosecutor must enter into a recognizance to effectually prosecute the information and to abide by and observe the order of the court. The amount of the recognizance is fixed by r. 46 of the Crown Office Rules, 1886, at £50. (But see 4 Wm. & M. c. 18, s. 1, and R. v. Brooke, 2 T. R. 190.)

The information must set out the libel, &c., with all the certainty and precision of an indictment. (See Precedents Nos. 93, 96, post, pp. 673, 676.) As soon as it is filed a copy must be served on the defendant. The defendant must appear thereto within the times specified in rr. 83-98 of the Crown Office Rules, 1886; and see r. 44. If he does not he may be attached under a judge's warrant (48 Geo. III. c. 58, s. 1). After appearance the defendant has ten days within which to plead or demur. (Crown Office Rules, 1886, r. 131.) His plea is duly entered on the record, which is then made up and sent down for trial to the county in which the libel was published, unless a trial at bar be demanded. The record may be amended by a judge at chambers after plea and before trial. (R. v. Wilkes (1764—1770) 4 Burr. 2568; 2 Wils. 151.) The trial of an information for libel in all respects resembles the trial of an indictment; save that in ex officio informations, the counsel for the Crown (whether the Attorney-General

himself or any one appearing for him), has the right to reply, although the defendant calls no witness. (R. v. Horne, 20 How. St. Tr. 660; 11 St. Tr. 264; Cowp. 672.) The trial must take place within one year after issue joined; and if not, or if the prosecutor enters a nolle prosequi, the court, on motion for the same, may award the defendant his costs to the amount of the recognizance entered into by the prosecutor on filing the information. (Crown Office Rules, 1886, r. 49.) If on any information by a private prosecutor for the publication of any defamatory libel, judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the said defendant by reason of such information. (Ib. r. 50.) And the judge at the trial cannot in this case deprive the successful defendant of his costs by certifying that there was reasonable cause for the information. (R. v. Latimer, 15 Q. B. 1077; 20 L. J. Q. B. 129; 15 Jur. 314.) The master of the Crown Office taxes the costs under a side-bar rule; and he may allow costs incurred by the defendant previously to the filing of the information. (R. v. Steel and others, 1 Q. B. D. 482; 45 L. J. Q. B. 391; 24 W. R. 638; 34 L. T. 283; 13 Cox, C. C. 159; (C. A.) 2 Q. B. D. 37; 46 L. J. M. C. 1; 25 W. R. 34; 35 L. T. 534.) On such taxation execution issues in the ordinary way. (R. v. Latimer, ubi suprà.) There is no power, however, to condemn the defendant to pay the costs of the prosecution, if he be convicted or plead guilty, unless indeed he files a special plea of justification under Lord Campbell's Act, in which case he will have to pay the costs incurred by reason of that plea. (See 6 & 7 Vict. c. 96, s. 8, post, p. 718; and r. 50 of Crown Office Rules, 1886.)

APPENDIX A.

PRECEDENTS OF PLEADINGS.

CONTENTS.

I. PLEADINGS IN ACTIONS OF LIBEL AND SLANDER.

STATEMENTS OF CLAIM.

1. Character of a Servant.

2. Words in a Foreign Language.

3. Libellous Placard.

4. Reading a Libel aloud.

5. Showing an Anonymous Letter. (Special Damage.)

6. Libel on a Town Clerk.

7. Libel on a Solicitor. (Injunction.)

8. Libel on a firm of Architects.

9. Words imputing a Crime.

10. Words imputing a Contagious Disorder. (Special Damage.)

11. Slander of a Clergyman.

12. Slander of a Medical Man.

13. Slander of a Solicitor. (Injunction.)

14. Slander of a Trader in the way of his Trade. (Special Damage.)

15.

Ditto.

Ditto.

16. Words imputing Insolvency. (Special Damage.)

Ditto.

17. Words not Actionable without proof of Special Damage.

18. Action by Husband and Wife for Slander of the Wife.

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