fendant, unless they directly referred to the libel set forth in the declaration.

It is not competent to a defendant charged with having published a libel, to prove that a paper similar to that for the publication of which he is persecuted, was published on a former occasion by other persons, who have never been prosecuted for it.

Proof that the libel was contained in a letter directed to the plaintiff, and delivered into the plaintiff's hands, is not sufficient proof of publication to maintain an action (9).

There having been in a libellous letter a reference to a newspaper, as the authority upon which the libel was founded, it was holden, that the newspaper referred to might be given in evidence on the general issue, in mitigation of damages.

Plaintiff declared as proprietor and editor of a newspaperf; it was proved, that plaintiff was proprietor, but that his servant was editor; this was holden to be a fatal variance.

The proceedings against the printers, publishers, and proprietors of newspapers, either civilly or criminally (10), for any libel contained in such paper are much facilitated by a late statute, viz. 38 G. 3. c. 78. by which it is enacted, "that no person shall print or publish any newspaper, until an affidavit (or affirmation, in case of a quaker) shall have been delivered at the stamp-office, setting forth the real and true names, additions, descriptions, and places of abode, of the printer, publisher, and of all the proprietors, if they do not exceed two, exclusively of printer and publisher; if they do, then of two such proprietors, exclusively of

c R. v. Holt, 5 T. R. 436.

d Phillips v. Jansen, 2 Esp. N. P. C. 625. per Kenyon C. J.

e Mullett v. Hulton, 4 Esp. N. P. C. 248. Ellenborough C. J.

f Heriot v. Stuart, 1 Esp. N. P. C. 437. g S. 1.

h S. 2.

(9) The same point was admitted in Hick's case, in the Star Chamber, Hob. 215. But an indictment or information may be sustained in this case, because such letter being a provocation to a challenge and breach of peace, is considered as a misdemeanor.

(10) The proprietor of a newspaper is answerable criminally as well as civilly for the acts of his servants, in the publication of a libel, although it can be shewn, that such publication was without the privity of the proprietor. R. v. Walter, 3 Esp. N. P. C. 21.

printer and publisher, specifying the amount of shares, the true description of the building wherein such paper is intended to be printed, and the title of such paper1. If the proprietors exceed two, then two whose proportional shares in the property shall not be less than the proportional share of any other proprietor, exclusively of printer and publisher, shall be named and described in the affidavit or affirmation. This affidavit or affirmation must be renewed as often as printer, &c. shall change their abode or printing office, or as often as commissioners for stamp duties shall require. It must be signed by the parties making it, and taken by a commissioner or person specially appointed by commissioners. It must be sworn by all the parties, if they do not exceed four; if they do, then by four, who shall give notice to the other parties not swearing, under a penalty of 501. Such affidavits or affirmations shall be filed, and the same, or certified copies thereof, shall, in all proceedings, civil and criminal, touching any newspaper therein mentioned, be received as conclusive evidence of the truth of the matters contained in such affidavit against the persons swearing, and against proprietors named but not sworn (11), unless such persons shall have delivered to the commissioners, previously to the date of the newspaper in question, an affidavit or affirmation of their having ceased to be printers, &c. of such paper; and by the 11th section it is enacted, that after such affidavit shall be produced in evidence against the persons signing the same, &c., and after a newspaper shall be produced in evidence, entituled in the same manner as the newspaper mentioned in such affidavit; and wherein the name of the printer and publisher, and place of printing, shall be the same, it shall not be necessary for the plaintiff, informant, or prosecutor, or person seeking to recover any

(11) Before this statute, it had been holden, in the case of R. v. Topham, H. 31 G. 3. B. R. 4 T. R. 126., where the defendant was indicted for having published in a newspaper a libel reflecting on the memory of a dead person, that evidence that the paper had been sold at the office of the defendant, that the defendant, as proprietor of the paper, had given a bond to the stamp-office, pursuant to stat. 29 G. 3. c. 50. s. 10. for securing the duties on the advertisements, and that he had from time to time applied to the stamp-office, respecting the duties on the paper, was evidence to be left to the jury, to shew that the defendant was the publisher.

of the penalties given by this act, to prove that the newspaper, to which such trial relates, was purchased at any house, &c. belonging to or occupied by the defendants or their servants, &c., or where they usually carry on the business of printing or publishing such paper, or where the same is usually sold.

The affidavit, together with the production of a newspaper, corresponding in every respect with the description of it in the affidavit', is not only evidence of the publication of such paper by the parties named, but is also evidence of its publication in the county where the printing of it is described to be.

By the 13th section, certified copies of such affidavits, &c. shall be delivered by commissioners, or proper officer, on payment of ls. A copy of such affidavit, &c. certified to be a true copy, under the hand of commissioners or proper officer, shall, on the proof of hand-writing only, without proving the person signing to be a commissioner or officer, be proof of the swearing, or affirmation and contents, and that it has been sworn or affirmed according to the statute". Every printer or publisher must, within six days after publication, deliver a copy of his paper, signed by himself, or his publisher, with his name and place of abode, to commissioner or other officer, and any person may apply for and shall obtain the same at any time within two years from the day of publication, (on giving surety to return it) for the purpose of producing it in evidence in any proceeding civil or criminal.

It was observed in the preceding section, that where the defendant contends that the libel is true, he must justify on record; but where the facts to be proved on the part of the defendant do not constitute a complete justification, as where they shew a ground of suspicion, not amounting to actual proof of the plaintiff's guilt, such facts may be given in evidence, on the general issue, in mitigation of damages" (12).

1 R. v. Hart, 10 East, 94. m S. 17.

n Knobel v. Faller, Peake's Ev. 237. Ed. 2.

(12) So in Sir John Eamer v. Merle, before Lord Ellenborough, which was an action for words of insolvency, the defendant was permitted to prove that at the time there were rumours in circulation that the plaintiff's acceptances were dishonoured. And in a case before Le Blanc J. at Worcester, that learned judge received

evidence under the general issue, that the plaintiff had been guilty of attempts to commit the crime which the defendant had imputed to him. 2 Camp. N. P. C. 253, 254. So in the case of the E. of Leicester v. Walter, 2 Camp. N. P. C. 251. the defendant was permitted to prove, under the general issue, in mitigation of damages, that before and at the time of the publication of the libel, the plaintiff was generally suspected to be guilty of the crime thereby imputed to him, and that on account of this suspicion, his relations and acquaintance had ceased to associate with him.

CHAP. XXVII.

MALICIOUS PROSECUTION.

I. Of the Action on the Case for a Malicious Prosecution, and in what Cases such Action may be maintained.

II. Of the Declaration-Defence-Evidence.

I. Of the Action on the Case for a Malicious Prosecution, and in what Cases such Action may be maintained.

AN action on the case lies against any person who maliciously, and without probable cause, prosecutes another, whereby the party prosecuted sustains an injury, either in person, property, or reputation.

The action on the case for a malicious prosecution, bears a strong analogy to the old, and now obsolete, action for a conspiracy; hence, it is frequently termed an action on the case in the nature of a conspiracy. But the grounds of the old action for conspiracy are narrow and confined, when compared with those on which the action on the case for malicious prosecution is founded.

The action for a conspiracy having been framed according to the precise terms of a writ in the register, whose limits it does not presume to transgress, lies only in cases where two or more persons maliciously conspire to indict any person falsely of treason or felony, who is afterwards lawfully

a Marsh v. Vaughan and another, Cro. Eliz. 701. Mills v. Mills, Cro. Car. 239.

b See the opinions of Holt C. J. and

Treby C. J. that a conspiracy lies only for procuring another to be indicted for treason or felony, where life was in danger. Ld. Raym. 379.