the United Kingdom. The act then directs when fresh declarations shall be made, and before whom the declarations are to be made, and imposes a penalty if the declaration be false or defective. By sect. 8, such declarations are to be filed, and certified copies thereof shall be admitted in all proceedings civil and criminal (g), and upon every occasion, touching any newspaper mentioned in such declaration, or touching any publication, matter, or thing contained in such newspaper, as conclusive evidence of the truth of all such matters set forth in such declaration, as are required by the act to be therein set forth, &c.; and after production of the declaration, and of a newspaper corresponding in every respect with the description of it in the declaration, it will not be necessary to prove the purchase of the

newspaper.

In an action against the publisher of a newspaper, one of the proprietors not sued is a competent witness for the defendant, as he is not liable to contribution (h): this being an action of tort.

It was observed in the preceding section, that where the defendant contends that the libel is true, he must justify on record; but in one case (i), where the facts to be proved on the part of the defendant did not constitute a complete justification; as where they showed a ground of suspicion not amounting to actual proof of the plaintiff's guilt; it was holden by Eyre, C. J., that such facts might be given in evidence, on the general issue, in mitigation of damages. This doctrine, however, to the extent here laid down, seems questionable (10). Where the justification avers the truth of the facts,

(g) See R. v. Woolmer, 4 P. & D. 137. (h) Moscati v. Lawson, 7 C. & P. 35, Alderson, B.

(i) Knobel v. Fuller, Peake's Ev. 287, ed. 2; Peake's Add. Cases, 139, S. C.

(10) 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 Campb. 253, 254. So in the case of the E. of Leicester v. Walter, 2 Campb. 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 acquaintances had ceased to associate with him. And in Wyatt v. Gore, Holt's N. P. C. 299, Gibbs, C. J., permitted the defendant, under the general issue, to prove that the substance of the libel charged in the declaration had been previously published in a newspaper; and held, that it was not necessary to lay a basis for this evidence by producing the newspaper. In v. Moor, in an action of slander imputing a specific charge of unna2 B

VOL. II.

which form the ingredients of the libel, each and every of the facts so alleged to be true, must be distinctly proved (k), in order to entitle the defendant to a verdict on the justification.

An executor (1) may, under the stat. 17 Car. II. c. 8. s. 1, enter up judgment on a verdict obtained by his testator in an action for a libel.

Doubts having arisen, whether, on the trial of an indictment or information for a libel, upon the plea of not guilty, it was competent to the jury to give their verdict upon the whole matter in issue, it was by stat. 32 Geo. III. c. 60, enacted and declared, that the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue, and shall not be required or directed by the court to find the defendant guilty, merely on the proof of the publication, and of the sense ascribed to the same in the indictment or information: provided (m), that the court shall give their opinion and direction to the jury on the matter in issue, as in other criminal cases; and provided also (n), that the jury may, in their discretion, find a special verdict, and also (0), that the defendants, if found guilty, may move in arrest of judgment as before the passing this act. The foregoing statute does not affect civil cases, but is confined to criminal (p).

It has been the course for a long time for a judge, in cases of libel, as in other cases of a criminal nature, first to give a legal definition of the offence, and then to leave it to the jury to say, whether the facts necessary to constitute that offence are proved to their satisfaction; and that, whether the libel is the subject of a criminal

(k) Weaver v. Lloyd, 2 B. & C. 678. (1) Palmer v. Cohen, 2 B. & Ad. 966. (m) Sect. 2.

(n) Sect. 3.

(0) Sect. 4.

(p) Levi v. Milne, 4 Bingh. 195.

tural practices to plaintiff, where the declaration contained the usual allegation of good fame, &c., it was holden, that the witness who proved the words might be asked, upon cross-examination, whether he had not heard reports in the neighbourhood, that the plaintiff had been guilty of similar practices, in order to diminish the damages. See 1 M. & S. 284. But although general reports have been admitted in mitigation of damages, under the general issue, specific facts are not so admissible. Mills v. Spencer, Holt's N. P. C. 535, Gibbs, C. J. See also Waithman v. Weaver, 1 D. & R. 10, and Starkie's Law of Slander and Libel, vol. ii. p. 80, n., 2nd edition, where this subject is fully discussed. In Saunders v. Mills, 6 Bingh. 213, the defendant, (the editor of a newspaper,) was permitted, under the general issue, in mitigation of damages, to show that he copied the libellous paragraph from another newspaper, but was not allowed to show that it had appeared concurrently in several other newspapers. See East v. Chapman, ante, p. 1049; May v. Brown, 3 B. & C. 113; Watts v. Fraser, 7 C. & P. 369.

prosecution, or civil action.

The judge is not bound to state to the jury, as matter of law, whether the publication complained of, be a libel or not. Mr. Fox's Libel Bill was a declaratory act, and put prosecutions for libel on the same footing as other criminal cases (q).

The reader who is desirous of investigating the law of libel and slander as applied in Scotland, is referred to a very learned and ingenious work published at Edinburgh, by John Borthwick, Esq., advocate. It is worthy of consideration, whether a portion of that law might not be introduced with effect into our system.

(g) Per Parke, B., Parmiter v. Coup- v. Lawrence, 3 P. & D. 526. land, 6 M. & W. 108, recognized in Baylis

CHAPTER XXVII.

MALICIOUS PROSECUTION.

I. Of the Action on the Case for a Malicious Prosecution, and in what Cases such Action may be maintained, p. 1054. II. Of the Declaration, p. 1062; Defence, p. 1063; Evidence, p. 1064.

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 (a). 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 a 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 (b), who is afterwards lawfully acquitted. The action on the case for a malicious prosecution varies its form as the circumstances of each particular grievance may require. Whatever engines of the law malice may employ to compass its evil designs against innocent and unoffending persons, whether in the shape of indictment or informa

(a) Marsh v. Vauhan 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 dan ger. Ld. Raym. 379.

tion (c), which charge a party with crimes injurious to his fame and reputation, and tend to deprive him of his liberty; or whether such malice is evinced by malicious arrests, or by exhibiting groundless accusations, merely with a view to occasion expense (d) to the party, who is under the necessity of defending himself against them, this action on the case affords an adequate remedy to the party injured. It may be brought against one only (e); and where it is brought against two or more defendants, although a conspiracy be alleged in the declaration, and a verdict be found for all the defendants except one, yet the plaintiff will be entitled to judgment (f). On the contrary, the action for a conspiracy must be brought against two persons at the least (g), because the gist of the action is the conspiracy; and if one only be found guilty (h), or if all except one are discharged by matter of law (i), the action fails. And to maintain an action for a conspiracy, the party indicted must have been acquitted upon a good indictment (k), by verdict, for such is the language of the writ, "legitimo modo acquietatus," or "lawfully acquitted;" which imports such an acquittal of the crime charged as will entitle the party to plead auter foits acquit, in case he be afterwards prosecuted for the same crime (1). But in an action on the case for a malicious prosecution, it is not necessary that the plaintiff should allege or prove such an acquittal; for it may be brought under circumstances which preclude the possibility of such an acquittal: as, 1st, where a bill of indictment has been preferred, and returned ignoramus (m). 2ndly, where the indictment has been preferred coram non judice (n). And lastly, where a party has been acquitted on a defect in the indictment (o). Formerly, indeed, it was supposed, that an acquittal on the ground of the insufficiency of the indictment was a material objection, where the subject matter of the indictment did not affect the reputation of the party accused, and he had not been imprisoned, because scandal and imprisonment were at that time considered as the only kinds of damage for which this action would lie. But it having been decided, in the case of Savile v. Roberts (p), that the expense incurred by a groundless prosecution, without scandal or imprisonment of the party accused, was sufficient to support this action where the indictment was good, quoad the damage; it was shortly afterwards holden, in a case (q) where the subject matter of

(c) Moore v. Shutter, 2 Show. 295. (d) Jones v. Gwynn, Gilb. R. 185; 10 Mod. 148, 214.

(e) Mills v. Mills, Cro. Car. 239. (f) Price v. Crofts, Sir T. Raym. 180; Pollard v. Evans and others, 2 Show. 50. See also Subley v. Mott, 1 Wils. 210. (g) F. N. B. 260, 4to ed. 1755. (h) 28 Ass. 12, cited in F. N. B. 260. (i) Ib. in nota.

(*) Bro. Conspiracie, pl. 23.