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the jury, from which the jury may infer the publication according to the circumstances before them, Rex v. Burdett, 4 B. & A. 95.

The sale of a libel in a shop is evidence of publication in a prosecution against the master, and is sufficient for conviction, unless contradicted by contrary evidence, showing that he was not privy, nor in any degree assenting to it.

By the 32 G. 3, c. 60, the functions of juries on trials for libel are more precisely ascertained and discriminated. Prior to this act, it had been frequently determined that the only questions for the consideration of the jury were the fact of the publication and the truth of the innuendoes, that is, the meaning of the passages of the libel, as stated in the record; and the court alone was competent to determine whether the matter of the publication was or was not libellous. But the 32 G. 3 provides, that on every trial of an indictment or information for libel, the jury may give a general verdict of guilty or not guilty, and shall not be required or directed by the judge to find the defendant guilty merely on proof of publication, and of the sense ascribed to the libel in the record.

The punishment for either making, repeating, printing, or publishing a criminal libel is fine, or fine and imprisonment, proportioned to the nature of the offence and rank of the offender.

When a person is brought up to receive judgment, his conduct subsequent to his conviction may be taken into consideration, either by way of aggravation or mitigation of the punishment.

CHAPTER II.

Slander.

SLANDER, or evil-speaking, consists in maliciously and falsely speaking of another, charging him with the commission of an offence punishable by law, as treason, murder, larceny; or which may exclude him from society, as with having an infectious disease; or which may hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave.

Words imputing an indictable offence are actionable or not, according to the sense in which they may be understood by bystanders not acquainted with the facts to which they may relate, and which may render them privileged, and the secret intent of the speaker is immaterial, Hankinson v. Bilby, 16 Mees & W. 442.

Words of heat, anger, or passion, spoken without deliberation, as to call a man a rogue, a scoundrel, a villain, a fool, a liar, if productive of no evil consequences, are not actionable; neither are words spoken by the defendant, or counsel, in judicial course,

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if pertinent to the matter in question. The imputation of a mere defect or disregard of moral or religious duties is insufficient to susTo call a man a heretic, or tain a prosecution, 4 Taunt. 355. adulterer, is cognizable only in a spiritual or divorce court, unless temporal damage ensue.

To constitute legal slander, some precise crime must be imputed, or real injury sustained. Hence, it is actionable to say a man is a highwayman; but it is not so to say he is worse than a highwayman. To render words actionable, they must be uttered without legal occasion. On some emergencies it is justifiable or excusable to utter slander of another, provided it be without malice. So, false and scandalous matter contained in articles of the peace, exhibited to justices; or the declaration of a court-martial, that the charge of the prosecutor was malicious and groundless, is not actionable. The accusation of a mere intent, propensity, or inclination to commit a crime is not actionable, because it only imputes an inchoate delinquency, and not the actual commission of a But an crime, for which the party accused could be punished. accusation of seducing another to commit a crime, as subornation of perjury, or of soliciting a servant to steal, is actionable. A verbal charge of incontinence against a modest woman is not slander cognizable in the temporal courts, except the city court; and even there the cause of action must arise within the jurisdiction of the city of London. But words not actionable in themselves may become so by reason of some special damage arising from them; as if you say to a woman, You are a whore, whereby she loses her marriage, or a substantial benefit arising from the hospitality of friends, 1 Taunt. 39. So, if a person slander the title of another, whereby he is prevented from selling his estate. But, in such cases, it is necessary not only to prove the uttering of the words, but the injury sustained. Words which impute the want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade, or occupation, in which the party is engaged, are actionable. Thus, an action for libel will lie for accusing a clergyman of incontinence, &c., for which he may be deprived; or a barrister, attorney, or artist, of inability, inattention, or want of integrity; or a person in trade of fraudulent or dishonourable conduct, or of being in insolvent circumstances, 5 B. & Cr. 180. To say to one who carries on the business of a corn vendor, "You are a rogue and a swindling rascal; you de livered me one hundred bushels of oats, worse by 6d. a bushel than I bargained for," is actionable, and entitles to a verdict without proof of special damage. But an action is not sustainable for saying a tradesman has charged an exorbitant price for his goods, unless fraud be imputed. In all these cases the words are actionable without proof of special damage, because they have a direct tendency to injure the party accused in his business or profession. It is actionable to republish any slander invented by another,

unless the republication be accompanied by a disclosure of the author's name, and precise statement of the author's words, so as to enable the party injured to maintain an action against the original author. Words spoken in derogation of a peer, a judge, or other great officer of the crown, which are called scandalum magnatum, are held to be still more heinous; and though they be such as would not be actionable in the case of a common person, yet, in this, they amount to a serious offence. Words, also, tending to scandalise a magistrate, or person in public trust, are deemed more criminal than in the case of a private man.

CHAPTER III.

Personal Injuries.

THE following injuries are such as chiefly affect the personal security of individuals.

1. THREATS and menaces of bodily hurt, through fear of which a man's business is interrupted: this is incipient, though not actual violence, for which compensation may be had by action.

2. ASSAULT, which is an attempt or offer to do corporal injury to another; as by holding up the fist in a menacing manner, striking with a cane or stick, though the party miss his aim; throwing a bottle or glass, with intent to wound or strike. But to constitute an assault, there must be an intention to use actual violence, coupled with the ability; the party aimed at must be within reach of the fist or the weapon lifted or levelled against him.

3. BATTERY, which also includes assault, is the unlawful beating of another the least touching of another person in a rude and angry manner is battery; every man's person being held inviolate, and no one having a right to meddle with it in the slightest degree. But battery is justifiable where the party has authority; as a parent or master may give moderate correction to his child, scholar, or apprentice.

4. MAYHEM, or, as it is more correctly written, mailem, is an injury more atrocious than the preceding, and consists in violently depriving another of the use of such members as may be useful to him, either to defend himself or to annoy his adversary. Among such defensive members are reckoned not only our arms and legs, but a finger, an eye, and a fore-tooth. But the loss of one of the jaw-teeth, the ear, or the nose, is no mayhem at common law, as they can be of no use in personal defence. The distinction between legal maiming and corporal maiming, as punished by 24 & 25 V. c. 100, is now obsolete, or nearly so.

For the three personal injuries of assault, battery and may

hem an indictment may be brought as well as an action; the one at the suit of the crown for the crime against the public, the other at the suit of the party injured, to obtain reparation in damages. But, in general, the adoption of both proceedings is considered vexatious, and will induce the jury to give smaller damages in the action. The legislature, too, has discouraged actions for trifling injuries of this nature, by enacting that in all such cases the plaintiff, if he does not recover more than £5 damages, shall have no costs unless the action be brought to try a right, or the grievance was wilful and malicious, 23 & 24 V. c. 126.

5. FALSE IMPRISONMENT may be included under the head of personal injuries, and consists in the unlawful detention of the person without legal authority. Every species of confinement is an imprisonment, whether it be in a common prison, in a private house, in the stocks, or even by forcibly detaining one in the public

streets.

The legal restraint of personal liberty must arise either by process from the courts of justice, or by warrant from a legal officer, having power to commit under his hand and seal, and expressing the cause of committal; or from some special power warranted either by the common law or act of parliament; such as the power of a private person, without warrant, to arrest felons or apprehend vagrants.

False imprisonment, however, may arise from executing a legal process at an improper time; as by arresting in a civil suit on Sunday. The circumstance of an imprisonment being committed under a mistake constitutes no excuse, 3 Wills. 309.

CHAPTER IV.

Adultery.

DURING the Commonwealth adultery was made a capital crime, and several unsuccessful attempts have been subsequently made to bring it within the pale of criminal jurisdiction. Adultery, therefore, continues to be considered only a civil injury; but by the Divorce Act (p. 62), in lieu of the former action for criminal conversation, by way of equivalent for the husband's wrong, the adulterer is made co-respondent in the suit, and liable for costs; and in certain cases for damages on behalf of the injured party.

The damages in cases of crim. con. depend on the rank and quality of the plaintiff; the condition of the defendant-his being a friend, relation, dependant of the plaintiff; the nature of the seduction as founded on the previous behaviour of his wife, and her character; and the husband's obligation, by settlement or

otherwise, to provide for the children, which he cannot but suspect to be spurious.

To enable the husband to maintain his action, there must be no imputation of his having courted his own dishonour, or of his having been instrumental to his own disgrace. So, if the wife be suffered to live as a prostitute with the privity of the husband, and the defendant has thereby been drawn in to commit the act of which the husband complains, the action cannot be maintained.

If the husband live separate from his wife, in consequence of mutual agreement, in which he gives up all claim to be derived from her society, he is not entitled to maintain an action for her seduction.

Lord Kenyon held, that where a husband kept a mistress, he was not entitled to maintain an action for adultery; but in a subsequent case, of Bromley v. Wallace, 4 Esp. 237, Lord Alvanley was of opinion, that, unless the husband lives so much with other women as amounts to total abandonment of his wife, it is only a circumstance which affects the damages.

The EVIDENCE of the fact of adultery, which, from its nature, is usually circumstantial, must be sufficient to satisfy the jury that an adulterous intercourse has actually taken place. Proof of familiarities, however indecent, is insufficient, if there be reason to apprehend, from the fact of the parties being interrupted, or any other circumstance, that a criminal connection has not been consummated. The Evidence Further Amendment Act, 1869, has now provided that the parties to any proceeding instituted in consequence of adultery, and the husbands and wives of such parties, shall be competent to give evidence, but no witness is liable to be asked whether he or she has committed adultery.

The defendant may show, in mitigation of damages, that the wife had before eloped, or had been connected with others that she had borne a bastard before marriage: that she had been a prostitute previous to her connection with the defendant: but he cannot give evidence of the general reputation of her being or having been a prostitute, for that may have been occasioned by her familiarity with him. For the same purpose he also may give in evidence that she was a woman of loose conduct, and notoriously bad character that she made the first overtures and advances to the defendant that his means and expectations are inconsiderable.

It may be further urged, that the husband carried on a criminal correspondence with other women in an open and undisguised manner, or that he treated his wife harshly or unkindly, or that they did not live happily together.

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