5 Barnewall & Adolphus 1081-1087 (s. c. 3 N. & M. 105).

Libel.-Justification.

[1081] Where an information for libel states that certain transactions took place, and that the libel was published of and concerning them, and then sets out the libel as referring to them, and the prosecutor, at the trial, gives general proof of such transactions, to support the introductory part of his pleading, the defendant is not thereby authorized to give evidence of the particular history of those transactions, so as to bring into issue the truth or falsehood of the libel.

But if such evidence be adduced bonâ fide, to show that the transactions referred to in the alleged libel are not the same with those which the information supposes it to have had in view, and the Judge is informed that the evidence is offered for that purpose, it is admissible.

Affidavits are not receivable to show that a Judge is mistaken in his report of a cause tried before himn.

Criminal information for a libel. The information stated that, before the committing of the offences, &c., a commission had issued against the defendant, Patrick Grant, and assignees had been appointed; that before the issuing of such commission, Grant had been a co-proprietor of a newspaper with one Young, and that "certain transactions had taken place since the said bankruptcy respecting the sale by the assignees of the said Patrick Grant of his interest in the said newspaper." The information then charged, that the defendants contriving, &c., to defame the solicitor to the commission, and one of the assignees, and to cause it to be believed that they had been guilty of fraud and breach of trust in the execution of their respective duties in relation to the said commission, &c., published of and concerning the said commission of bankrupt, and of and concerning the said assignee and solicitor under the said commission," and the said transactions as aforesaid," a certain false, &c. libel, containing the false, &c. matters of and concerning the said assignee and solicitor respectively following, that is to say. The libel was then set out. It contained several injurious statements of the conduct of the prosecutors in transactions relative to Grant's bankruptcy, and accused them of "fraud

and falsehood," and of "swindling," in the discharge of [* 1082] * their respective functions; stating, among other things, that, in order to defraud the creditors. they had made a

No. 16.-Rex v. Grant, 5 Barn. & Adol. 1082, 1083.

false assertion respecting a purchase of the newspaper by Young; that by such false assertion, Young had been enabled to maintain a Chancery suit against the creditors; and that, at a late meeting of the creditors, it had appeared that Young withdrew the allegation of his having made such purchase. At the trial before DENMAN, C. J., at the sittings in Middlesex after last Michaelmas term, the solicitor and assignee were called as witnesses for the prosecution, and, in their examination in chief, gave general evidence of the facts stated in the inducement; and in particular, that transactions had taken place after the bankruptcy, relating to the sale by Grant's assignees of his interest in the newspaper. Kelly, for the defendants, endeavoured, in cross-examination, to go into the particulars of the several transactions respecting the sale of Grant's interest in the paper. The LORD CHIEF JUSTICE, considering this an attempt to bring into question the truth or falsehood of the libel, refused to allow such questions to be put. The defendants were found guilty. In this term (January 15th),

*

Kelly moved for a rule to show cause why a new trial should not be had, on account of the above-stated rejection of evidence. The objection to these questions was, that by asking them, the truth of the libel might incidentally be brought in question. But if certain transactions are averred in the introductory part of the information, and the averment as to them is a material one, evidence must be gone into respecting them. The LORD CHIEF JUSTICE thought that evidence might be given [* 1083] to show generally that such transactions had happened, but not what the nature of them was; but it was necessary to go into the particulars, in order that the jury might judge whether a true character had been given of the supposed libel in the introductory averments. They are to decide on the whole matter, and an essential part of it is, not only whether the transactions referred to had happened, but whether they were of such a nature as the information suggests, and whether the publication complained of was a libel with relation to them. The jury could not judge of that without the evidence which it was proposed to go into. Lord MANSFIELD said in Rex v. Horne, Cowp. 679: "The gist of every charge of every libel consists in the person or matter of and concerning whom or which the words are averred to be said or written." Here the gist of the charge was the transactions relating to the sale of the newspaper. In Rex v. Horne, Cowp. 672, where the information

stated the libel to be " of and concerning his Majesty's government and the employment of his troops," but no particular statement was made as to the occasion on which the troops had been employed, and to which the libel referred, the defendant proposed to give in evidence an affidavit, published before the libel, relating to the employment and conduct of the king's troops in an encounter with the insurgents in America. Lord MANSFIELD said (in delivering the judgment of the Court), "I told the defendant, if he meant to prove the facts to be true as above, it could not be done by affidavit, the person himself being present, and even if he [* 1084] was absent, they could not be proved by affidavit; *but if he meant to show that at the time there existed a public account in the newspapers, which might be of use to restrain or qualify the meaning of the paper in question upon the information, he might do so." Upon the same principle the evidence was admissible here, to show what transactions the writing in question referred to, and whether, taken with reference to them, it was libellous. If an indictment charged that a bankrupt had passed his examination, and that a libel had been published concerning it, stating that the bankrupt had, on such examination, sworn contradictory matters, and thereby committed perjury; it cannot be said that the particulars of the examination itself might not be gone into, it being incorporated with the libel by the introductory averment. In the present case it is stated as part of the libel, that the solicitor and assignee are alleged to have made a false allegation respecting the sale of the newspaper, to defraud the creditors; this is one of the transactions of and concerning which the libel is said to have been published: how can the Jury say that the publication is a libel respecting, and applicable to, a transaction so described, unless they know particularly what the transaction was? [DENMAN, C. J. The falsehood imputed in that transaction was not in itself insisted upon; the ground of complaint was the foul and calumnious language that ran through the whole publication. In the part in question, it was not merely said that a false statement was made on a particular subject, but that it was made to defraud the creditors.] The prosecutors might have relied upon the general abuse merely; but they have, by their introductory averments, incorporated particular transactions

with the subject-matter of the charge; and if their case [* 1085] be such * as to require proof of matters which may bring

No. 16.-Rex. v. Grant, 5 Barn. & Adol. 1085, 1086.

the truth or falsehood of the libel into question, the defendant is not therefore to be precluded from examining into the matters so introduced.

it;

DENMAN, C. J. Undoubtedly the defendants in pleading to this information, put in issue all the material allegations contained in I admit without reserve, that it was in issue whether or not the alleged libellous matter related to the transactions mentioned in the introductory averments of the information. And if counsel for the defendant, in a case like this, were to say, bonâ fide, “I propose entering upon this evidence to show that what is stated in the information is not proved, for that the libel does not apply to the transaction referred to by the pleading; and in order to show that, the evidence must be gone into;" it would then be admissible. But in this case it was taken for granted that the transactions had happened, and that the libel related to them; the object in offering this evidence was to show that it related to them justly. It came then to the question, whether or not the truth of a libel can be put in issue on an information. I have always thought it could not. The reason now given for going into the evidence in question was not suggested, and the Judge who tries a cause ought to be informed of the purpose for which evidence is offered.

LITTLEDALE, J. I entirely concur.

If the evidence had been

offered to prove that the libel did not relate to those transactions which the information applied it to, the inquiry might have been pursued; but not with any other view.

*TAUNTON, J., concurred.

PATTESON, J. I am of the same opinion, for the reasons given by my lord, which I need not repeat.

[* 1086]

Rule refused.

On this day, the defendants were brought up for judgment, and Kelly renewed his former application, stating that on reference to another gentleman who was counsel in the cause, and to a shorthand writer's note, he found that the evidence had been offered at the trial, as bearing upon the question, whether or not the transactions referred to by the libel were the same as those mentioned in the introductory part of the information, and that, in particular, it had been asked, "how the jury could know that the transactions were the same, if such evidence were not gone into?" [DENMAN, C. J. My note and my recollection are distinct on the

subject. It might perhaps be said by way of argument, "how can the jury know that the transactions were the same, without this evidence?" but the object always was to introduce the truth of the statements in the libel. If the evidence had been, or could have been offered, bona fide, for the purpose now suggested, it would have been different. If counsel had told me that they really put the questions for the purpose of showing that the libel did not relate to the transactions referred to in the information, I should have allowed them to be put, though I should have been surprised at the mode of proceeding. But when it was suggested

that merely because certain transactions were spoken of [*1087] in the introductory part of the information, the de

fendant's counsel might go into the history of those transactions, I could not allow such a course to be taken.] Kelly offered to put in the short-hand writer's notes, and affidavits of the circumstances under which the evidence was offered. DENMAN, C. J. I will not hear affidavits as to what passed at the trial, unless the Court tell me that I ought.

LITTLEDALE, J. The affidavits cannot be received.

TAUNTON, J. The question is, whether the affidavits of by standers are to be admitted, to prove that the Judge who presided at a trial is guilty of mistake as to what passed. If such affidavits were now received, it would be the first instance of such a practice, and would produce the greatest injury to the adminis tration of justice.

(PATTESON, J., was in the Bail Court.)

The defendants then received judgment.

ENGLISH NOTES.

Lord Campbell's Act, 6 & 7 Vict. c. 96, s. 6, enacts that "on the trial of any indictment or information for a defamatory libel, the defendant having pleaded such plea as hereinafter mentioned, the truth of the matters charged may be inquired into, but shall not amount to a defence, unless it was for the public benefit that the said matters charged should be published; and that to entitle the defendant to give evidence of the truth of such matters charged as a defence to an indictment or information, it shall be necessary for the defendant, in pleading to the said indictment or information, to allege the truth of the said matters charged in the manner now required in pleading a justification to an action for defamation, and further to allege that it was for the public benefit that the said matters charged should be pub