that a copy or copies of the libel are in the possession of such other person for the use of the defendant. (a) In case the judgment is reversed or arrested, the copies so seized are forthwith to be restored to the person from whom they have been taken, free of all charges and fees. (b) If final judgment be entered upon the verdict against the defendant, then all copies seized are to be disposed of as the court in which judgment is given shall order and direct. (c) PART IV. CHAPTER XI. If the court imposes a fine upon the defendant, the prose- Costs. cutor will be allowed his costs out of it to the extent of onethird of the fine. (d) defendant As a rule, the Crown neither gives nor receives costs in on acquittal criminal cases; but, in addition to the practice of allowing entitled to costs. a private prosecutor his costs out of the fine, the 8th section of Lord Campbell's Act provides "that in case of any indictment or information by a private prosecutor (e) for the publication of any defamatory libel, if judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the said defendant by reason of such indictment or information." found for pro secutor, he is The same section provides "that on a special plea of If issue on justification to such indictment or information, if the issue special plea be be found for the prosecutor, he shall be entitled to recover entitled to costs from the defendant the costs sustained by the prosecutor by of such plea. reason of such plea, such costs, so to be recovered by the defendant or prosecutor respectively, to be taxed by the proper officer of the court before which the said indictment or information is tried." Under 4 & 5 Will. & M. c. 18, s. 2, a defendant to a criminal information, who obtained a verdict, was entitled to costs, unless the judge at the trial, in open court, certified upon the record that there was reasonable cause for exhibiting the information; but by the later statute of 6 & 7 Vict. c. 96, a successful defendant is entitled to his costs, in spite of the judge's certificate.(ƒ) cannot recover It appears that the proprietor of a newspaper, who has Newspaper probeen convicted and fined for the publication of a libel in prietor fined paper, inserted without his knowledge and consent by against editor. the editor, cannot recover against the editor the damages the sustained by such conviction.(g) (a) 60 Geo. 3 & 1 Geo. 4, c. 8, s. 1. See Rex v. Cator (2 East, 361). (b) Id., s. 2. (c) Ib. (d) Cole on Crim. Inform. 109; 1 Ch. Crim. L. 871. (e) See Reg. v. Duffy (2 Cox C. C. 49). (f) Reg. v. Latimer (15 Q. B. 1077). (g) Colburn v. Patmore (1 Cr. M. & R. 73). PART IV. CHAPTER XII Who may sue. Libel on CHAPTER XII. CIVIL REMEDY OF THE LIBELLED. EVERY person of whom a libel is published has a right of action, although his only injury be that which the law presumes from the publication of the defamatory matter. (a) When the libel is of a married woman, the husband and married woman. wife must sue together; and if any special damage has accrued to the husband, he may, in the same action, add claims in his own right for such damage. (b) Should separate actions be brought in such a case, they may be consolidated if the court or a judge shall think fit.(c) Partners. Joint-stock companies Where a libel is published of persons in their trade, all the partners of the firm may join in the action; (d) but in such action they cannot recover damage for their private feelings, but only for the injury to their trade. (e) In general, however, a joint action cannot be maintained, although many persons may be defamed by one and the same libel, as the wrong done to any one of them is not the wrong done to the others; (f) for, what one man may suffer from such a cause may altogether be different from the injury which will accrue to another. The chairman of a joint-stock company, not incorporated, and corporations. but having powers under an Act of Parliament to use the name of their chairman in actions for recovery of debts or enforcing claims or demands then due, or which thereafter might become due or arise to the company, and indictments for offences, was held entitled to sue for a libel on the company.(g) "That a corporation at common law can sue in respect of a libel," says Pollock, C.B., "there is no doubt. It would be monstrous if a corporation could maintain no action for slander of title through which they lost a great deal of money. It could not sue in respect of an imputation of murder, or incest, or adultery, because it could not commit those crimes. Nor could it sue in respect of a charge of (a) Thorley v. Lord Kerry (4 Taunt. 355); Craft v. Boite (1 Wms Saunders, 246, b). (b) Common Law Procedure Act of 1852 (15 & 16 Vict. c. 76), s. 40. (c) Ib. (d) Forster and others v. Lawson (11 Moo. 361; 3 Bing. 452); Maitland v. Goldney (2 East, 425). (e) Haythorn and another v. Lawson (3 C. & P. 196). (f) Barratt v. Collins (10 Moo. 451). (g) Williams v. Beaumont (10 Bing. 260). PART IV, corruption; for a corporation cannot be guilty of corruption, although the individuals composing it may. But it would CHAPTER XII. be very odd if a corporation had no means of protecting itself against wrong, and if its property is injured by slander, it has no means of redress except by action. Therefore it appears to me clear that a corporation at common law may maintain an action for a libel by which its property is injured. Then has a corporation created under the 19 & 20 Vict. c. 47, the same power?. . . . In order to carry on business, it is necessary that the reputation of such a corporation should be protected, and therefore, in case of libel or slander, it must have a remedy by action." (a) This reasoning clearly applies to all joint-stock companies, under whatever statutes they may be constituted. An alien friend, though domiciled abroad, may maintain Alien. an action for a libel on him published in England. (b) plaintiffs. Sect. 19 of the Common Law Procedure Act, 1860, pro- Effect of joinder vides that "the joinder of too many plaintiffs shall not be of too many fatal, but every action may be brought in the name of all the persons in whom the legal right may be supposed to exist; and judgment may be given in favour of the plaintiffs by whom the action is brought, or of one or more of them, or, in case of any question of misjoinder being raised, then in favour of such one or more of them as shall be adjudged by the court to be entitled to recover." But, by the same section, "the defendant, though unsuccessful, shall be entitled to his costs occasioned by joining any person or persons in whose favour judgment is not given, unless otherwise ordered by the court or a judge." The non-joinder or misjoinder of plaintiffs may be amended either before or at the trial on such terms as the court or judge shall think proper. (c) Upon notice or plea in abatement of non-joinder of plaintiffs, the plaintiff may amend the writ and other proceedings before plea, and proceed in the action on payment of the costs occasioned by such amendment, and the defendant may then plead de novo. (d) The action must be brought within six years next after Time within the publication relied upon; (e) but such publication needst be brought. not be the first or substantial publication of the newspaper or book. Thus, where a libel appeared in a newspaper, published (a) Metropolitan Saloon Omnibus Company v. Hawkins (4 H. & N. 90; (c) Common Law Procedure Act, 1852, sects. 34, 35. PART IV. CHAPTER XII. Venue. Change of venue. Persons liable as defendants. Joint publication. in 1830, and at the trial, in 1849, two copies of the paper were produced, one of which copies came from the British Museum, and the other had been purchased before the commencement of the action, in 1848, at the newspaper office of the defendant, by a witness who had been sent by the plaintiff to make the purchase, and who had handed the paper so purchased to the plaintiff, the court held this latter publication, although to the plaintiff's agent, sufficient to disprove the plea of the Statute of Limitation. (a) The action is transitory, and therefore the venue may be laid in any county the plaintiff elects for the trial, subject to the defendant's obtaining an order to change it. (b) This the defendant cannot often do, as the general affidavit, upon which an order to change the venue in transitory actions is made, does not usually apply to actions of libel; at any rate, not when the libel is in a book or newspaper, as the publication, which is the cause of action, is made in divers counties. (c) In one case the court made the rule absolute to change the venue, in an action for a libel contained in a Newcastle paper, from London to Newcastle, upon an affidavit of the defendant that several pleas of justification were to be pleaded, and that all the witnesses resided at Newcastle; that the paper was published there; that the expense would be greatly increased if the action were tried in London; and that the cause of action, if any, arose in Newcastle, and not elsewhere. (d) Where the venue had been changed, upon the common affidavit, from Cumberland to Lancashire, the court made absolute a rule to move it back again, upon an affidavit that the newspaper was published as much in one county as the other. (e) Whoever makes a publication of the libel, is liable to be sued, and cannot escape by alleging that other publishers are or have been sued for the same libel.(ƒ) Where there has been a joint publication by several, the plaintiff may exercise a choice as to suing them all in one action or in several, as there is no contribution between wrongdoers; (g) but the court might order them to be con(a) Duke of Brunswick v. Harmer (14 Q. B. 186). (b) Smith v. O'Brien (26 L. J. 30, Ex.). See Begg v. Forbes (13 C. B. 614). (c) Clissold v. Clissold (1 T. R. 647); Pinkney v. Collins (1 T. R. 571; 1 Wils. 178). (d) Robson v. Blackwell (2 Dow. 645). (e) Hobart v. Wilkins (1 Dow. 460). (f) Harrison v. Pearce (1 F. & F. 567); Frescoe v. May (2 F. & F. (g) See Frescoe v. May, (ubi supra). 123). solidated, unless reasons could be given why they should not. (a) PART IV. CHAPTER XII. Infant. and joint-stock companies. An infant may be made defendant to an action for libel, as his nonage is no defence to those actions of tort which are not founded on contract.(b) Corporations aggregate and joint-stock companies may be Corporations sued for libels published by their servants or agents. (c) Great injustice would be suffered by individuals if their remedy for libels published by authority of the company or corporation were limited to the agents employed. It is no answer to say that a corporation has no soul, and therefore cannot be guilty of malice; because, in the first place, as we have already seen, express malice need not be alleged; and, secondly, even if it need, there would be great difficulty in saying that, under certain circumstances, express malice may not be imputed to, and proved against, a corporation. (d) Husband and wife must be joined as defendants in actions Husband and for libels by the wife, whether she published them before (e) or during her coverture, and although the husband and wife may be permanently living apart. (f) But, after a divorce a vinculo matrimonii, or a decree of judicial separation, the wife must be sued alone, though the libel were published before the divorce.(g) The judgment of Erle, C.J., in the case which establishes this proposition, explains the reasons for the present rules as to joinder of husband and wife, as defendants, in suits arising solely out of the wife's conduct. The learned Judge says:(h) "During coverture the wife has no such existence as to enable her to be a suitor, in her own right, in any court; neither can she be sued alone. For any wrong committed by her she is liable, and her husband cannot be sued without her; neither can she be sued without joining her husband. Seeing that all her personal property is vested in the husband, it would be idle to sue the wife alone: the action would be fruitless. Where the husband is joined for conformity, if he dies, the action goes on against the wife; but if the wife dies, the action abates. (a) See Jones v. Pritchard (6 D. & L. 529; 18 L. J. 104, Q. B.). (b) Defries v. Davies (3 Dow. K. B. 629); Dicey on Parties, 474. (c) Whitefield v. South-Eastern Railway Company (E. B. & E. 115; 27 L. J. 229, Q. B.); Alexander v. North-Eastern Railway Company (34 L J. 152, Q. B.; 11 Jur. N. S. 619). (d) See E. B. & E. 121. (e) Bac. Abr. "Baron & Feme” (L); Com. Dig. "Baron & Feme” (Y). (f) Headv. Briscoe et ux. (5 C. & P. 485, and 2 L. J. N. S. 101, C. P.). (4) Capel v. Powell (17 C. B. N. S. 743; 34 L. J. 168, C. P.; 11 L. T. N. S. 421). (h) 17 C. B. N. S. 748. wife. |