According to the usual form of the declaration in this action, after the prefatory averments which the circumstances of the case may render necessary as inducement to the action, the plaintiff states, "that the defendant falsely and maliciously wrote and published (4) of and concerning (5) the plaintiff a false, &c. libel, which libel is according to the tenor and effect following:" the libel is then set forth in hæc verba, accompanied, however, with the necessary innuendos, in order to illustrate and explain the tendency and bearing of the libel, and to give it its force and application; and in this part of the declaration care must be taken, that the libel be so set forth, as to agree with that produced in evidence. If the nature of the case requires it, several counts are added, stating the case with variations, according to the discretion of the pleader. The declaration then concludes with the damage, either general, which the law supposes to have been sustained, or special, which the party has actually sustained, in consequence of the publication of the libel.

The words of the libel ought to be stated on the record, in order that the defendant may, if he thinks fit, demur, and bring before the court the question whether they amount to a libel. Hence it is not sufficient to declare that the defendant published a libel concerning the plaintiff in his trade, purporting that his beer was of bad quality, and sold by deficient measure; the libel itself ought to be set out. And such declaration is bad on general demurrer.

If the libel be written in a foreign language, the original should first be set forth in the declaration, and then the translation'.

Of the Pleadings.

The general issue in this action is, not guilty.

If the matter of the libel be true, the defendant may

Wood v. Brown, 6 Taunt. 169.

t Zenobio v. Axtell, 6 T. R. 162.

(4) Although the publication of the libel must be stated in the declaration, yet it will be sufficient to state such matter as amounts to a publication, without using the formal word published. Baldwin v. Elphinston, 2 Bl. R. 1037.

(5) Judgment was arrested after verdict, because it was not laid that the libel was "of or concerning plaintiff," in Lowfield v. Bancroft and another, Str. 934, and in R. v. Marsden, 4 Maule and Selwyn, 164.

plead it in justification (6); but in such justification, if there be any thing specific in the subject, issuable facts ought to be stated, and not general charges of misconduct; for where a libel charged an attorney with gross negligence, falsehood, prevarication, and excessive bills of costs in the business which he had conducted for the defendant; it was holden", that a plea in justification repeating the same general charges, without specifying the particular acts of misconduct was bad, upon demurrer; and that it was incumbent on the defendant, who must be taken to know the particular acts of

u Holmes, Gent. one &c., v. Catesby, 1 Taunt. 543.

(6) The only authorities of which 1 am aware, for this position, are the dicta of Hobart, C. J. in Lake v. Hatton, Hob. Rep. 253., and of Holt, C. J. in an anonymous case, 11 Mod. 99.; but the position is warranted by the opinion of the profession, and the practice at the present day. See J'Anson v. Stuart, 1 T. R. 750. And in the case of Plunkett, solicitor-general of Ireland, v. Cobbett, tried before Lord Ellenborough, C. J. Middx. Sittings, 26th May, 1804, (which was an action on the case for a libel, to which the defendant had pleaded N. G.) it was observed, by Lord Ellen borough, C. J. in his direction to the jury, that "in case the libel had been true, it would have been open to the defendant to have justified it on the record." It is worthy of remark, however, that though this doctrine is now taken for certain, yet it was not consi. dered as settled even so late as the year 1735: for in the King v. Roberts, B. R. M. T. 8 G. 2. MSS. on a motion for an informa tion against the defendant for a libel, Lord Hardwicke, C. J. thus expressed himself: "It is said, that if an action were brought, the fact, if true, might be justified; but I think that is a mistake; such a thing was never thought of in the case of Harman v. Delaney. E. 4 Geo. 2. (Str. 898.) I never heard such a justification in an action for a libel even hinted at. The law is too careful in discountenancing such practices. All the favour that I know truth affords in such a case is, that it may be shewn in mitigation of damages in an action, and of the fine upon an indictment or an information."

Information against defendant for publishing a libel against Mr. Swinton, of Wadham College, Oxon, accusing him of sodo mitical practices. Lee, C. J. rejected evidence offered of de fendant's reasons for the accusation, viz. that the supposed pathic had informed him of them, saying, that the only question was, whether defendant was guilty of publishing the libel. It had been always holden, that the truth of a libel could not be given in evidence by way of justification; because, if the person charged with any crime is guilty, he ought to be proceeded against in a legal course, and not reflected upon in such a manner. Bull. N. P. 9.

misconduct, to disclose them. It is not any bar to the action, that the plaintiff has been in the habit of libelling the defendant; although it may operate in mitigation of the damages.

To this action the defendant may plead the statute of limitations, that is, "that the cause of action did not accrue at any time within six years next before the commencement of the plaintiff's action.'

III. Of the Evidence.

THE libel must be produced, and, before it is read, it must be proved that it was published by the defendant. The mode of publication may be proved in order to enhance the da

mages.

If it be proved, that the libel was bought in the shop of a bookseller, of a person acting in the shop as the servant of the bookseller, this will be prima facie evidence of a publication by the bookseller, inasmuch as he has the profits of the shop, and is therefore answerable for the consequences.

If the libel be in a foreign language, in which case, as it has already been observed, the libel must be set forth in the declaration, both in the original language, and in an English translation, further proof will be necessary (7).

In an action for a libel, after the libel, on which the action was brought, had been read, the plaintiff's counsel of

x Finnerty v. Tipper, 2 Camp. N. P. C. z R. v. Almon, 5 Burr. 2686. 76. a Lee v. Huson, Peake's N. P. C. 166.

y 21 Jac. 1. c. 16.

(7) In the case of the R. v. Peltier, which was an information against defendant for a libel on Napoleon Buonaparte, the evidence on the part of the prosecution was as follows: 1. A witness proved, that he had purchased several copies of the book, containing the libel in question, of a certain bookseller, which copies he had marked at the time. 2. The bookseller proved that defendant was the publisher of the book, and employed him to dispose of the copies on his account, and that he had accounted for them. 3. An interpreter was then called, who swore that he understood the French language, and that the translation was correct. The interpreter then read the whole of that which was charged to be a libel in the original, and then the translation was read by the clerk at Nisi Prius.

fered in evidence other libels written by the defendant. This having been objected to, on the ground that the plaintiff could not give in evidence any thing which would of itself constitute a ground for a distinct action; Lord Kenyon, C. J. said, he thought that the evidence was admissible, and compared it to actions for slander, in which evidence of other words, besides those stated in the declaration were usually received [to shew the malice of the defendant (8).]

In an action on the case for publishing a libel against the defendant in a paper entitled the Weekly Political Register", a witness was called, who proved that he had purchased one of the papers containing the libel in question before the action was brought; he was then proceeding to prove that he had purchased another copy of the same paper after the action was brought. This was objected to, on the part of the defendant, on the ground that the publication of the lastmentioned copy might become the subject of a future action, and, therefore, that it ought not to be given in evidence to increase the damages in this action. But Lord Ellenbob Plunkett v. Cobbett, before Ld. Ellenborough, Middx. Sittings, 26th May, 1804, MSS.

(8) Charlter v. Barret, Peake's N. P. C. 22. So in Rustel v. Macquister, Middx. Sittings after H. T. 1807, 1 Camp. N. P. C. 49. n. the plaintiff, having proved the words laid in the declaration, offered evidence of other actionable words spoken by the defendant afterwards; this being objected to on the ground that these latter words might become the subject of a future action, Ld. Ellenborough overruled the objection, observing, that evidence might be given of any words as well as any act of the defendant to shew quo animo he spoke the words which were the subject of the action. Still, however, it would be the duty of the judge to tell the jury, that they must give damages for those words only, which were the subject of the action. So per Sir J. Mansfield, in Finnerty v. Tipper, Sittings after H. T. 49 G. 3. " In actions for words, it has been allowed to give evidence of words subsequently spoken, for the purpose of shewing that the original words were spoken mali ciously and to injure:" but see Mead v. Daubigny, Peake's N. P. C. 125., where, in an action for slander, Lord Kenyon, C. J. confined this doctrine to words not actionable in themselves; admitting, however, that such words might be given in evidence, although it appeared they were not spoken to the same person, - to whom the slander was alleged in the declaration to have been spoken. N. This distinction was exploded by Lord Ellenborough in the preceding case of Rustel v. Macquister, who observed that it was not founded upon any principle.

rough, C. J. was of opinion, that although it was not admissible for the purpose of aggravating the damages, yet it was evidence to shew that the paper was circulated deliberately. But in Finnerty v. Tipper, Sir J. Mansfield ruled, that the plaintiff could not give in evidence other subsequent libels published concerning him by the defendant, 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 prosecuted, was published on a former occasion by other persons, who have never been prosecuted for itd.

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 newspaper; 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

c 2 Camp. N. P. C 72.

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

e Phillips v. Jansen, 2 Esp. N. P. C. 625. per Kenyon, C. J. S. P. admitted by Chambre, J. in R. v.

Hornbrook, Devon Summ. Assizes, 1812. M. S.

f Mullet v. Hulton, 4 Esp. N. P. C. 248. Ellenborough, C. J.

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

(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. Per Chambre, J. in R. v. Hornbrook, Devon Summer Assizes, 1812, who there said "It is not necessary to constitute a publication in a criminal prosecution to shew that it has been published to the world. It is sufficient if it is sent to the party libelled, its criminality depending upon its tendency to provoke the party libelled to a breach of the peace."

(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,