Where seven actions were brought against the same defendant for different publications of the same libel, proceedings in all but one were stayed until the one had been tried (a).

In an action for libel, the judge may certify, under the 3 & 4 Vict. c. 24, s. 2, that the grievance for which the action was brought was wilful and malicious (b).

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 "Mr. Fox's Libel Act," 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, that the court shall give their opinion and direction to the jury on the matter in issue, as in other criminal cases (c); and provided also, that the jury may, in their discretion, find a special verdict (d), and also that the defendants, if found guilty, may move in arrest of judgment as before the passing this act (e). The foregoing statute does not affect civil cases, but is confined to criminal (ƒ).

It has been the course for a long time for the 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 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 (g).

See further on the subject of indictments for the publication of defamatory libels, stat. 6 & 7 Vict. c. 96, ss. 4, 5, 6. By section 6 the defendant is empowered, in addition to the plea of not guilty, to plead the truth of the libel, together with an allegation that it was for the public benefit that the matters charged should be published and specific facts to show how it was so. And, on conviction, the court in pronouncing sentence may take the plea and evidence offered in support of it into consideration, in aggravation or mitigation as the case may be. Where the libel contains

(a) Jones v. Pritchard, 6 D. & L. 529. (b) Foster v. Pointer, 8 M. & W. 395; see Sherwin v. Swindall, 12 M. & W. 783. (c) Sect. 2. (d) Sect. 3.

(e) Sect. 4.

(f) Levi v. Milne, 4 Bingh. 195. (g) Per Parke, B., Parmiter v. Coupland, 6 M. & W. 108, recognized in Baylis v. Lawrence, 3 P. & D. 526; 11 A. & E. 920. See Blagg v. Sturt, 10 Q. B. 899; and ante, p. 1054.

several distinct imputations, and the plea alleges the truth of all and is traversed generally, if the evidence fail as to any one of them the verdict will be entered generally against the defendant (h). As to proceedings to enforce recognizances under 60 Geo. III. c. 9, and 1 Will. IV. c. 73, see Ex parte The Duke of Brunswick, 3 Exch. 829, and 6 Exch. 22; 21 L. J., Exch. 113.

In an action for a libel, charging the plaintiff with insolvency, the defendant is not entitled to an order, under 14 & 15 Vict. c. 99, s. 6, to inspect the books and accounts of the plaintiff for the purpose of establishing a justification (i).

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.

(h) R. v. Newman, 1 E. & B. 558; and see S. C. ibid. 268.

(i) The Metropolitan Saloon Omnibus Company v. Hawkins, 32 L. T. 281.

CHAPTER XXVI.

MALICIOUS PROSECUTION.

PAGE

I. Of the Action on the Case for a Malicious Prosecution, and in what Cases such Action may be maintained, .. 1071

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 information (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

(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 danger. Ld. Raym. 379.

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

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 held, in a case (q) where the subject-matter of the indictment did not affect the reputation of the plaintiff, and where the only damage which the plaintiff had sustained, was the expense attending the prosecution, that this action might be maintained, although the plaintiff had been prosecuted on an insufficient indictment. The decision of Savile v. Roberts has been confirmed by the case of Smith v. Hixon, Str. 977, more fully reported in Ca. Temp. Hardw. 54, where it was adjudged, that a husband alone might maintain an action for the malicious prosecution of his wife,

(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 edit. 1755.

(h) 28 Ass. 12, cited in F. N. B. 260.

(i) Ibid. in nota.

(k) Bro. Conspiracie, pl. 23. (7) Gilb. 199.

(m) Payn v. Porter, Cro. Jac. 490; Agr. 2 Roll. R. 188.

(n) 1 Roll. Abr. 112, pl. 9.

(0) Jones v. Gwynn, Gilb. 185; Wicks v. Fentham, 4 T. R. 247.

(p) Salk. 13; Carth. 416; Ld. Raym.` 374, S. C.

(q) Jones v. Gwynn, Gilb. 185; 10 Mod. 148, 214.

the expenses of which had been defrayed by the husband. The case of Jones v. Gwynn was recognized in Chambers v. Robinson, Str. 691, and in Wicks v. Fentham, 4 T. R. 247; where it was held, that this action would lie, although plaintiff had been acquitted on a defect in the indictment, the subject-matter of which did not. affect his reputation. See also Pippett v. Hearn, 5 B. & A. 634; where it was held, that an action would lie for the malicious prosecution of a bad indictment for perjury.

The grounds of the action for a malicious prosecution are, the malice of the defendant, either express or implied (r); want of probable cause (s); and an injury sustained by the plaintiff, by reason of the malicious prosecution, either in his person by imprisonment, his reputation by the scandal, or in his property by the expense. If the plaintiff cannot prove any such injury, he cannot maintain the action (t). It lies on the plaintiff to give prima facie evidence (u) of want of probable cause; but slight evidence (x) is sufficient to throw the onus on the defendant of showing that there was probable cause.

In Incledon v. Berry, Devonshire Summer Ass. 1805, 1 Campb. 203, n. (a), recognized by Dallas, C J., in Turner v. Turner, Gow's N. P. C. 20, in an action for maliciously indicting plaintiff for perjury, Lens, Serjt., for the plaintiff, having proved express malice, contended, that it was not necessary for him to proceed any further, and that it lay on the defendant to show probable cause for having instituted the prosecution; but Le Blanc, J., ruled, that some evidence (though slight evidence would be sufficient) must be given on the part of the plaintiff of want of probable cause, before the defendant could be called upon for his defence. In Wallis v. Alpine, 1 Campb. 204, n., Lord Ellenborough, C. J., held, that plaintiff was not excused from giving evidence of want of probable cause, from the circumstance of defendant, who had commenced a prosecution, having neglected to prefer a bill of indictment. See also on this point Turner v. Ambler, 10 Q. B. 252.

"The essential ground of this action is, that a legal prosecution was carried on without probable cause. We say this emphatically, because every other allegation may be implied from this; but this must be substantively proved, and cannot be implied. From the want of probable cause, malice may be, and most commonly is, implied. The knowledge of the defendant is also implied. A man, from a malicious motive, may take up a prosecution for real guilt, or he may, from circumstances which he really believes, proceed from apparent guilt; and in neither case is he liable to this kind of action" (y).-"The question of probable cause is a mixed proposi