of the affidavit and paper is not sufficient. (h) So where the affidavit described the proprietor's residence to be in "Red Lion Street, St. Ann's Square," and on the paper it was described as in "St. Ann's Square;" Lord Tenterden held that as the party was not excluded from other proof of publication, if he relied on the statutory proof, he must bring himself within the statute, and that the discrepancy was fatal.(i) In moving for a criminal information a prosecutor is not bound to adopt the statutory proof, *but if he adopt any other the publication must be *365] shown by some direct proof, as that a party bought the libel at the defend

ant's shop; and it is not sufficient to produce an affidavit stating merely that the defendant printed and published a libel in a certain newspaper called, &c., a copy of which libel is hereunto annexed, and to annex such copy.(k) And a newspaper may be given in evidence, though it is not one of the copies published, and though it be unstamped at the time of trial.(1)

Where in an action for libel to prove that the defendant, Harmer, was the proprietor of the "Sun" newspaper, a certified copy of the declaration made at the stamp office under the 6 & 7 Will. 4, c. 76, s. 6, was put in, and it was a joint declaration, and stated that, "We are the sole proprietor; that is to say, the said James Harmer, as legal owner as mortgagee, and Murdo Young, as owner of the equity of redemption;" it was objected that this declaration showed that the defendant was a mortgagee only, and not a proprietor against whom an action for libel could be maintained; but Lord Campbell, C. J., held that the defendant was liable.(m)

Upon the trial the libel must in general be produced on the part of the prosecution, and, after sufficient proof of a publication by the defendant, may be read; and if the libel has merely been exhibited by the defendant, and he refuses on the trial to produce it, after notice for that purpose, parol evidence may be given of its contents.(n) The libellous matter must be set out in the indictment;(0) and the libel proved must appear to correspond with the statement of it in the indictment, and any variation in the sense between the matter charged and that proved will be fatal.(p) But the mere alteration of a single letter, so long as it does not change one word into another, will not vitiate; though the smallest variance, if it renders the meaning different, will be fatal.(g)

The libel must also be proved to have been published, by the party accused, in the county laid in the indictment.(r) But if a man write a libel in one county and consent to its publication in another, the consent is sufficient to charge him in the latter county.(s) So if a man write a libel in London, and send it by post addressed to a person in Exeter, he is guilty of a publication in Exeter.(t) And (h) Rex v. Franceys, 2 Ad. & E. 49 (29 E. C. L. R.). (Murray v. Souter, cited, 6 Bing. 414 (19 E. C. L. R.), in Cook v. Ward. were before the new Act, which seems framed to avoid trifling variances. 361.

These cases
See ante, P.

(k) Reg. v. Baldwin, 8 A. &. E. 168 (35 E. C. L. R.), and see Watts v. Fraser, 7 A. & E. 223 (34 E. C. L. R.), and qu. whether the means of proof given by the 6 & 7 Will. 4, c. 76, be applicable to a libel published by a plaintiff.

(1) Rex v. Pearce, Peake's N. P. C. 75.

(m) Duke of Brunswick v. Harmer, 3 C. & K. 10.

(n) By Buller, J., in Rex v. Watson and others, 2 T. R. 201.

(0) Rex v. Sacheverell, 15 Sta. Tri. 466.

(p) Tabart v. Tipper, 1 Campb. 352. And if it appears upon the proof that parts of the libel which are separated by intervening matter are set forth as if they were continuous, it will be bad, if the sense is altered by the passage omitted: Id. Ibid. It is settled that the whole libel need not be set forth in the indictment; but if any part qualifies the rest, it may be given in evidence: 2 Salk. 417. See the 9 Geo. 4, c. 15, and 14 & 15 Vict. c. 100, s. 1, as to amendments of variances, post, Evidence.

(2) Rex v. Beech, 1 Leach 133; Rex v. Hart, 1 Leach 145.
(r) Case of the Seven Bishops, 12 St. Tri. 354.
(t) Id. Ibid. 332.

(s) 12 St. Tr. 331.

1 A libel was published in Rhode Island, in a newspaper that usually circulated in the county of Bristol (Mass.), and the number containing the libel was received and circulated in that county; it was held that this was competent and conclusive evidence of publication there: Comm. v. Blanding, 3 Pick. 304.

where the defendant wrote a libel in Leicestershire, with intent to publish it in Middlesex, and published it in Middlesex accordingly, and the information against *him was in Leicestershire; three of the judges held the information right: [*366 but Bayley, J., doubted.(u) From the same case it appears to have been considered that delivering a libel sealed, in order that it may be opened and published by a third person in a distant county, is a publication in the county in which it so delivered; and further, that if delivering it open were essential, proof that the defendant wrote it in county A., and that C. delivered it unsealed to D. in county B., would be primâ facie evidence that the defendant delivered it open to C. in the county A., though there be no evidence of C.'s having been in county A. about the time; or that application had been made to D. to know of whom he received it. The information was in the county of Leicester, for writing and publishing a libel; and it was proved by the date of the letter that the defendant wrote it in that county, and that Bickersteth delivered it to Brooks for publication in the county of Middlesex, it being then unsealed. Bickersteth was not called as a witness; and there was no evidence of his having been in the county of Leicester, or how the libel came to him. The jury were told that as Bickersteth had it open, they might presume that he received it open; and that, as the defendant wrote it in the county of Leicester, it might be presumed that Bickersteth received it in that county; and three judges held against the opinion of Bayley, J., that this direction was proper; and they also held that if the delivering open could not be presumed, a delivery sealed with a view to and for the purpose of publication was a publication; and they thought there was sufficient ground for presuming some delivery, either open or sealed, in the county of Leicester.(v) It appears from this case that the dating a libel at a particular place is evidence of its having been written at that place. (w) The post-mark upon a letter has been considered as no evidence for the purpose of proving that the letter was put into the post-office at the place mentioned by such post-mark.(x) But it appears to be the better opinion that such post-marks, whether in town or country, proved to be such, are evidence that the letters on which they exist were in the offices to which the postmarks belong at the dates thereby specified.(y) But a mark of double postage having been paid on such letter is not of itself sufficient evidence that the letter contained an enclosure.(z) If a libellous letter is sent by the post, addressed to a party at a place out of the county in which the venue is laid in an indictment for the libel, yet, if it were first received by him within that county, it is a sufficient publication to support the indictment. (a) Owning to the signature to a libel is not evidence in *what county it was signed. This was held in the celebrated case of [*367 the Seven Bishops; but additional evidence being afterwards given that the bishops applied to the Lord President of the Council about delivering a petition to the King, and that they were admitted to the King for that purpose in Middlesex, the case was left to the jury.(b) It has been held to be sufficient to prove a defendant

(u) Rex v. Burdett, 4 B. & A. 95 (6 E. C. L. R.).

(v) Ibid., and MS. Bayley, J.

(w) Rex v. Burdett, 4 B. & A. 95 (6 E. C. L. R.).

(x) Rex v. Watson, 1 Campb. 215; Lord Ellenborough, C. J., said the postmark might have been forged.

(y) Rex v. Plumer, Hil. T. 1824, M.S., Bayley, J., and R. & R. 264; Rex v. Johnson, 7 East 65; 2 Stark. Evid. 456, and Fletcher v Braddyll, note (g), ibid.

(2) Rex v. Plumer, ante, note (y). Some person who paid or received the postage should be called.

(a) Rex v. Watson, 1 Campb. 215; and see Rex v. Middleton, 1 Str. 79. In the case of Rex v. Johnson, 7 East 65, the publisher of a public register received an anonymous letter, tendering certain political information on Irish affairs, and requiring to know to whom letters should be directed, to which an answer was returned in the register, after which he received two letters in the same handwriting directed as mentioned, and having the Irish post-mark on the envelopes, which two letters were proved to be in the handwriting of the defendant, the previous letter having been destroyed, it was held that this was a sufficient ground for the Court to have the letters read; and the letters themselves containing expressions of the writer, indicative of his having sent them to the publisher of the register in Middlesex for the purpose of publication, the whole was evidence sufficient for the jury to find a publication by the procurement of the defendant in Middlesex. (b) Case of Seven Bishops, 12 St. Tri. 183.

to have published a libel whithout proving him to have composed it, upon a count in an information charging him with having "composed, printed, and published" it.(c) So if the defendant is charged by a count in an indictment with having composed, printed, and published" a libel, if the evidence be that he only composed and published it, he may be found guilty of the composing and publishing. and acquitted of the printing. (d) Or he may be found guilty of the printing only, upon an indictment for printing and publishing, if the evidence shows him to have assisted in the printing, and to have had nothing to do with the publishing.(e) If the libel be in a foreign language, as it is necessary that it should be set forth in the indictment in the original language, and also in an English translation, it will be necessary to prove the translation to be correct. Thus upon the trial of an information against the defendant for a libel in the French language on Napoleon Buonaparte, after the witness had proved the purchase of some copies of the book from a certain bookseller, and the bookseller had proved that the defendant was the publisher and had employed him to dispose of the copies on his account, and that he had accounted for them; an interpreter was 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.(ƒ)

Where an information for libel stated that the prosecutor had received certain anonymous letters, and that the defendant published a libellous placard of and concerning those letters, and the placard asked, "Were you not warned that your character was at stake?" and the prosecutor stated that he should not have understood the meaning of the placard if he had not also seen the letters, and that he understood the passage in the placard to allude to the letters, it was held that the letters were admissible without proving who wrote or sent them, as the placard referred to them, and would not be intelligible without them, and that a defendant, *who refers to other papers in his publication, must submit to have them

*368] read as explanatory of such publication. (g)

Depositions taken before a magistrate were not evidence upon a trial for a libel, under the 1 & 2 Ph. & M. c. 13, and 2 & 3 Ph, & M c. 10.(h) which extended only to cases of felony.(i) But as the 11 & 12 Vict. c. 42, extends to misdemeanors, it should seem that such depositions would now be evidence. A Gazette is evidence to prove an averment in an information for a libel, "that divers addresses, &c., had been presented to his Majesty by divers of his loving subjects.(k) The King's proclamation, reciting that it had been represented that certain outrages had been committed in different parts of certain counties, and offering a reward for the discovery and apprehension of offenders, has been held admissible evidence to prove an introductory averment, in an information for a libel, that divers acts of outrage had been committed in those parts.(7) And a preamble to an Act of Parliament, reciting the existence of such outrages, and making provision against them, was also held to be admissible for the same purpose.(m)

The criminal intention of the defendant will be a matter of indifference from the nature of the publication. In order to constitute a libel the mind must be in fault, and show a malicious intention to defame; for, if published inadvertently, it will not be a libel; but where a libellous publication appears unexplained by any evidence, the jury should judge from the overt act; and, where the publication contains a charge slanderous in its nature, should from thence infer that the intention

(c) Rex v. Hunt, 2 Campb. 583.

(d) Rex v. Williams, 2 Campb. 646, Lawrence, J., said, "There is certainly no proof that the defendant printed the libel in question; but he may be acquitted of the printing, and found guilty of the composing and publishing. His delivering the libel in his own handwriting to the printer is abundant evidence of the latter offence." A verdict was accordingly found and recorded of "Guilty, except as to printing the libel."

(e) Rex v. Knell, 1 Barnard 305.

(f) Rex v. Peltier, Selw. N. P. 1048.

(g) Rex v. Slaney, 5 C. & P. 213 (24 E. C. L. R.), Lord Tenterden, C. J.

(h) Repealed by 7 Geo. 4, c. 64, s. 33.

(i) Rex v. Paine, 5 Mod. 163.

(2) Rex v. Sutton, 4 M. & S. 532.

(k) Rex v. Holt, 5 T. R. 436.
(m) Id. Ibid.

was malicious.(n) It is a general rule that an act unlawful in itself, and injurious to another, is considered both in law and reason to be done malo animo towards the person injured; and this is all that is meant by a charge of malice in a declaration for libel, which is introduced rather to exclude the supposition that the publication may have been made on some innocent occasion than for any other purpose.(0)1 The intention may be collected from the libel, unless the mode of publication, or other circumstances, explain it and the publisher must be presumed to intend what the publication is likely to produce; so that if it is likely to excite sedition, he must be presumed to have intended that it should have that effect. (p) Publishing what is a libel without excuse is indictable, though the publisher be free from what in common parlance is called malice; for defaming wilfully without excuse is in law malicious. And even if it could be an excuse, that the publisher held what he published to be true, it is not so if he professes to publish it *from authority. A newspaper contained this paragraph: "the malady under which his Majesty labors is of an alarming nature (meaning insanity); [*369 it is from authority we speak." At the trial of the indictment for this publication, the jury asked if malicious intention were necessary to constitute a libel; to which Abbott, C. J., answered, that a man must have intended to do what his act was calculated to effect; and the jury found the defendant guilty. Upon a motion for a new trial it was admitted that the paragraph was libellous, but it was urged that malice was essential to make the defendant criminal; that he believed the King to have been so afflicted, and that the answer to the question by the jury was incorrect. But the Court thought otherwise, as the defendant must know if he spoke from authority, and could have proved it: and if malice were a question of fact, a man must be presumed to have intended to produce the effect which his act will naturally produce; and libelling without excuse is legal malice. (9) A person who publishes matter injurious to the character of another must be considered, in point of law, to have intended the consequences resulting from that act, (r) for every man must be presumed to intend the natural and ordinary consequences of his own act. (s) The judge, therefore, ought not to leave it as a question to the jury, whether the defendant intended to injure the person libelled, but whether the tendency of the publication was injurious to such person. (t) In some cases, however, the paper or other matter may be libellous only with reference to circumstances which should be laid before the jury by evidence.

In order to show the existence of actual malice in the mind of the writer of a libel, other libels, whether written previously or subsequently, are admissible in evidence.(u) But where a considerable interval has elapsed between the publication of the libel complained of and subsequent statements offered as evidence of malice, the judge ought to direct the jury to consider whether these statements

(n) By Lord Kenyon, C. J., in Rex v. Lord Abingdon, 1 Esp. 228. And see Rex v. Topham, 4 T. R. 127, and Rex v. Woodfall, 5 Burr. 2667. In a case of an action for a libel contained in the "Statesman" newspaper, subsequent publications by the defendant in the "Statesman" newspaper were tendered in evidence to show quo animo the defendant published the paragraph in question. Lord Ellenborough said, "No doubt they would be admissible in the case of an indictment; and so they would here show the intention of the party, if it were at all equivocal; but if they be not admitted for that purpose, they certainly are not admissible for the purpose of enhancing the damages:" Stuart v. Lovel, 2 Stark R. 93 (3 E. C. L. R.).

(0) Per Lord Tenterden, C. J., Duncan v. Thwaites, 3 B. & C. 584, 585 (10 E. C. L. R.).

(p) Rex v. Burdett, 4 B. & A. 95 (6 E. C. L. R); Reg. v. Lovett, 9 C. & P. 462 (38 E. C. L. R.), Littledale, J.

(2) Rex v. Harvey, 2 B. & C. 257 (9 E. C. L. R.).

(r) Per Lord Tenterden, C. J., Fisher v. Clement, 10 B. & C. 472 (21 E. C. L. R.).

(s) Per Lord Tenterden, C. J., Haire v. Wilson, 9 B. & C. 643 (17 E. C. L. R.); 4 M. & R. 605.

(t) Haire v. Wilson, supra.

(u) Pearson v. Lemaitre, 5 M. & G. 700; Darby v. Ouseley, 1 H. & N. 1.

1 Malice in the publisher of a libel does not imply personal ill-will towards the person libelled: Comm. v. Benner, 9 Metc. 410.

may not refer to something which happened subsequently to the libel, so as not to show malice at the time of the publication of the libel.(v) Where therefore the House of Lords asked the judges "in an action for libel, when the plea of the general issue is pleaded, and also a plea under the 6 & 7 Vict. c. 96, s. 1, denying actual malice, and stating the publication of an apology set forth in the plea, is it admissible upon a trial for the plaintiff to give evidence of other publications by the defendant (some of them more than six years before the publication complained of) of and concerning the plaintiff, in order to prove malice against the defendant?" the judges answered, "We are all of opinion that, under such a plea, the publication of the previous libels on the plaintiff by the defendant is admissible evidence to show that the defendant wrote the libel in question with actual malice against the plaintiff. A long practice of libelling the plaintiff may show in the most satisfactory manner that the defendant was actuated by malice in the particular publication, and that it did not take place *through carelessness or inadvertence; *370] and the more the evidence approaches to the proof of a systematic practice,

the more convincing it is. The circumstance that the other libels are more or less frequent, or more or less remote from the time of the publication of that in question, merely affects the weight, not the admissibility of the evidence." And the House of Lords held accordingly.(w)

Where an information for libel alleged that a person unknown murdered E. Grimwood, and that one Hubbard had been arrested on the charge of committing the murder and discharged, and the libel set out spoke of "the acquittal of Hubbard for the murder of E. Grimwood;" it was held that the inducement was proved by evidence that a person had been murdered, and that Hubbard had been charged with the murder and afterwards discharged, and that at the inquest held on the body witnesses called the deceased by the name of E. Grimwood, and that this last fact might be proved by the coroner, and that he might for this purpose use an inquisition drawn up on paper.(x) "We would suggest

Where a declaration for libel set out the following passage: to the ex-Duke of Brunswick the propriety of withdrawing into his own natural and sinister obscurity" (meaning thereby to insinuate that the plaintiff was guilty of unnatural practices), Lord Campbell, C. J., refused to permit a witness to be asked if he had read the libel, and what he understood by the word "natural" printed in italics, as it was for the jury to form their own opinion as to what was meant by the word so printed.(y)

In an action for a libel it appeared that the plaintiff, an attorney, was employed by one Nash to bring an action against an executor; and that the defendant, who was employed to adjust the executor's accounts, finding that an action was about to be commenced against the executor, wrote a letter to Nash blaming him for allowing the plaintiff to sue, and containing this passage, "If you will be misled by an attorney, who only considers his own interest, you will have to repent it; you may think when you have once ordered your attorney to write to Mr. G., he would not do any more without your further orders; but if you once set him about it, he will go any length without further orders." And it was held that the question whether this letter applied to the plaintiff individually, or to the profession at large, was properly left to the jury.(2)

The evidence for the defence will now depend upon the defendant's pleas; if he plead that the libellous matter is true, and that it was published for the public benefit, it will lie upon him to prove these facts; but if he plead not guilty only, then the evidence which can be adduced on his behalf at the trial will in general be confined to a very narrow compass. There may, however, be cases of a publication in point of law, where no criminal intention can be imputed to the party;

(v) Hemmings v. Gasson, E. B. & E. 346 (96 E. C. L. R.).

(w) Barrett v. Long, 3 H. L. C. 395.

(x) Reg. v. Gregory, 8 Q. B. 508 (55 E. C. L. R.).

(y) Duke of Brunswick v. Harmer, 3 C. & K. 10.

(z) Godson v. Home, 3 Moore 223. And it seems that in this case if the point had been made at the trial whether this was a confidential communication or not, such point would not necessarily have been left to the jury.