not fairly entitled. But if a person, under the pretence of criticising a literary work, defames the private character of the author, and instead of writing in the spirit, and for the purpose, of fair and candid discussion, travels into collateral matter, and introduces facts not stated in the work, accompanied with injurious comments upon them, such person is a libeller, and liable to an action".

A fair, plain, unvarnished account of the proceedings of a court of justice, is not a libel' (3), but a highly coloured account of such proceedings, mixed up with insinuations of perjury, cannot be justified.

A false or scandalous matter contained in a petition to a committee of Parliament', or in articles of the peace exhibited to justices of the peace, or in any other proceeding

g Carr v. Hood, 1 Camp. N. P. C. 355. n. Ellenborough, C. J.

h Nightingale v. Stockdale, London Sittings after H. T. 49 G. 3. Ellenborough, C. J.

i Curry v. Walter, 1 Bos. & Pul. 525.
but see 1 M. and S. 279, 281.

k Stiles v. Nokes, 7 East, 493.
11 Hawk. B. 1. c. 73. s. 8.

Moulton

v. Clapham, B. R. E. 15 Car. 1. Sir W. Jones, 431. March, 20, S. C.

(3) In the case of the King v. Wright, 8 T. R. 293. the court refused to grant a criminal information against a bookseller for printing a true copy of a Report of a Committee of the House of Commons, though it reflected on the character of an individual. "It must not be taken for granted, that the publication of every matter which passes in a court of justice, however truly represented, is, under all circumstances, and with whatever motive published, justifiable; but that doctrine must be taken with grains of allowance." Per Ld. Ellenborough, C. J. and Grose, J. in Stiles v. Nokes, 7 East, 503. "It often happens that circumstances necessary for the sake of public justice to be disclosed by a witness in a judicial inquiry, are very distressing to the feelings of individuals, on whom they reflect; and if such circumstances were afterwards wantonly published, I should hesitate to say, that such unnecessary publication was not libelous, merely because the matter had been given in evidence in a court of justice." Per Lord Ellenborough, C. J., S. C. If a member of Parliament publish in the newspapers his speech, as delivered in Parliament, and it contains charges of a slanderous nature against an individual, an information will lie for a libel; though had the words been merely delivered in Parliament, they would be dispunishable in the courts at Westminster." The King v. Ld. Abingdon, 1 Esp. N. P. C. 226. The King v. Creevey, 1 Maule and Selwyn, 273. S. P. and that the circumstance of the speech being published for the purpose of correcting a misrepresentation, will not render the author less amenable to the common law in respect of the publication.

66

in a regular course of justice, will not make the complaint amount to a libel.

Although that which is written may be injurious to the character of another, yet if done bona fide, or with a view of investigating a fact, in which the party making it is interested, it is not libellous. Hence, where an advertisement was published by the defendant, at the instigation of A. the plaintiff's wife, for the purpose of ascertaining whether the plaintiff had another wife living when he married A.; it was holden, that although the advertisement might impute bigamy to the plaintiff, yet having been published under such authority, and with such a view, it was not libellous.

A letter written confidentially to persons who employed A. as their solicitor", conveying charges injurious to his professional character in the management of certain concerns which they entrusted to him, and in which B. the writer of the letter was likewise interested, was holden not to be a libel.

A defamatory writing, expressing only one or two letters of a name, in such a manner, that, from what goes before and follows after, it must necessarily be understood to signify such a particular person, in the plain, obvious, and natural construction of the whole, and would be nonsense if strained to any other meaning, is as properly a libel, as if it had expressed the whole name at large; for it brings the utmost contempt upon the law, to suffer its justice to be eluded by such trifling evasions.

II. Of the Declaration and Pleadings.

Venue. THIS is a transitory action, and consequently the venue may be laid in any county.

It may be stated as a general rule, that the venue cannot be changed in this action; to this rule, however, there are the two following exceptions. 1st, Where the writing and publication are confined to the same county. In this case the venue may be changed into such county . 2d, If the libel be sent out of England in a letter, the venue may be changed into that county in which the letter was written'.

191.

m Delany v. Jones, 4 Esp. N. P. C. p Pinkney v. Collins, 1 T. R. 571. q Freeman v. Norris, 3 T. R. 306. E. of Kerry v. Thorley, B. R. M. 49 G. 3. MS. S. P.

n M'Dougall v. Claridge, 1 Camp. N. P. C. 267. Ld. Ellenborough C.J. o Hurt's Case, Trin. 12 Ann. Hawk. book 1. c. 73. 8. 5.

r Metcalf v. Markham, 3 T. R. 652.

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 Ellenborough, 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 considered 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 sodomitical practices. Lee, C. J. rejected evidence offered of defendant'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. Almou, 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.