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 de livered 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 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 paper. If the proprietors exceed twok, 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 50l. 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 (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. 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 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 bu siness of printing or publishing such paper, or where the same is usually sold. The affidavit, together with the production of a news. paper, 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 1s. 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 p R. v. Hart, 10 East, 94. See also q S. 17. but see R. v. White, ub. sup, R. v. White, 3 Camp, N. P. C. 100. 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 da mages (12). Doubts having arisen, whether, on the trial of an indict ment 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. 3. 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', 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, that the jury may, in their discretion, find a special verdict, and also" that the defendants, if found guilty, may move in arrest of judgment as before the passing this act. : r Knobel v. Fuller, Peake's Ev. 287. Ed. 2. s S. 2. t S. 3. u S. 4. (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 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 Marsh v. Vaughan and another, Cro. Eliz. 701. Mills v. Mills, Cro. Car. 239. b See the opinions of Holt, C. J. and VOL. II. 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. may employ to compass its evil designs against innocent and unoffending persons, whether in the shape of indictment or information, 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 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; 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 plaintiff will be entitled to judgment'. On the contrary, the action for a conspiracy must be brought against two persons at the least, because the gist of the action is the conspiracy; and if one only be found guilty, or if all except one are discharged by matter of law, the action fails. And to maintain an action for a conspiracy, the party indicted must have been acquitted upon a good indictment 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. 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". 2dly, Where the indictment has been preferred coram non judice". And lastly, where the party has been acquitted on a defect in the indictment. 86 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 c Moor v. Shutter, 2 Show. 295. e Mills v. Mills, Cro. Car. 239. i Ib. in notâ. k Bro. Conspiracie, pl. 23. m Payn v. Porter, Cro. Jac. 490. Agr. n 1 Rol. Abr. 112. pl. 9. o Jones v. Gwynn, Gilb. 185. Wicks r. Fentham, 4 T. R. 247. |