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months' imprisonment, whereas the alternative had been only two weeks' imprisonment, and it was held, that the jury may treat this as an immaterial variance.1

Interrogatories and evidence in cases of libel.-No question can be asked of the defendant either at or before. the trial, nor any interrogatories allowed that tend to prove that he published the libel, for this is a criminal matter.2 But particulars will be ordered from the plaintiff of the persons whose patronage was alleged to be lost by way of special damages. And in like manner if the plea of justification of truth is vague, the defendant will be ordered to give particulars. There is no such defence as setting off one libel against another. Nevertheless when the facts appear of mutual libels, the jury can always practically deal with the matter in the amount of damages they award. One important part in the remedy against a libeller often is to prove the malice of the libeller, or that the defendant was not in the exercise of any lawful purpose of his own, and other writings and acts of the defendant are often sought to be brought in aid and tendered as evidence of this malicious feeling. It was once doubtful whether and how far it was competent on these occasions to give in evidence of malice that the defendant had at other times made defamatory statements and published libels. At length, in 1851, it was settled that previous libels might be used as evidence to prove the malice in a particular case. There is, however, a difference in this respect between libels published after and those before the particular libel sued for; in the case of libels published after, though these are admissible evidence to prove malice, yet the judge is bound to point out to the jury that there may have been subsequent transactions to account for the later libels. 7

Defence for libels in newspapers.-The mode of defence for libels appearing in periodical publications varies from that in other cases, and was made more suited to the

1 Alexander v N. E. R. Co., 6 B. & S. 240. 2 Atherley Harvey, 2 Q. B. D. 524. 3 Wood v Jones, 1 F. & F. 301. 4 Jones v Bewicke, L. R., 5 C. P. 32; Gourley v Plimsoll, L. R., 8 C. P. 369. 5 Kelly v Sherlock, L. R., 1 Q. B. 698. 6 Barrett v Long, 3 H. L. C. 395. 7 Hemmings Gasson, E. B. & E. 346; Goslin v Corry, 7 M. & Gr. 343; 8 Scott, N. R. 21; Harrison v Pearce, 1 F. & F. 567.

circumstances by the Act of 1842. When a libel in such publication is complained of, the publisher's first duty is at the earliest opportunity to insert a full apology, or if the interval of publication exceeds a week, then to insert an apology in some other periodical to be selected by the aggrieved party. Should an action be brought thereafter the defendant may plead, that he inserted the libel without actual malice or gross negligence, and that he made this apology; and he may pay into court a sum of money by way of amends for the injury. The payment of money into court is a vital part of this defence, though it does not necessarily admit the liability.3 It is for the jury to say whether the apology was sufficient, and if not, to give damages irrespective of the sum paid into court. And a plea that mutual apologies were accepted and published will be a good defence, if the plaintiff again sue in respect of it. This plea of an apology is in strictness no defence, but the statute has allowed it as part of one in conjunction with a payment into court, when the libel has appeared in a periodical. In other cases than libels in the press, though an apology offered or made is no defence, yet it is allowed to be proved by way of mitigation of the damages, if notice to that effect is given at the time when the defendant pleads his defence. Sometimes after an action is brought the plaintiff and defendant agree, the one to accept and the other to tender an apology, and this being an accord and satisfaction may be pleaded, should the plaintiff attempt to depart from his agreement.7

Functions of the judge in trials of actions for libel.The duties and position of the jury and the judge in criminal trials have been already set forth. In trials of civil actions, while a judge may give a jury his own impression as to the guilt or liability of the defendant, it is not usual to do so, for it is the peculiar province of the jury to decide that point. And the proper question to put to the jury is not whether the defendant intended to injure the plaintiff, but whether the tendency of the words

1 6 & 7 Vic. c. 96, § 2. Smith, 4 H. & N. 158.

28 & 9 Vic. c. 75, § 2.
4 Jones

5 Boosey v Wood, 3 H. & C. 484. 7 Boosey & Wood, 3 H. & C. 484.

3 Lafone v

Mackie, L. R., 3 Ex. 1.
6 6 & 7 Vic. c. 96, § 6.
Baylis & Lawrence, 11 A.

8

E. 920; Parmiter v Coupland, 6 M. & W. 105.

published was injurious. And the judge is bound to tell the jury whether the language of the libel is capable of the libellous meaning charged; and if he thinks it is, to leave it to them to say, if they are satisfied that such was the meaning; and he may direct a nonsuit or verdict for defendant." And it is, for example, for the jury to say if the defendant meant to impute felony, or only a suspicion of felony.3 Damages in actions for libel.-The amount of damages recoverable in actions for libel, though varying according to circumstances, is seldom founded on the mere mental suffering, the vexation, or disgrace, but usually on the pecuniary loss to business, if any, or if there is no business then to the social reputation, treated, as it always must be, as a valuable possession. In one case Lord Ellenborough held, that if a person who was libelled in a picture destroyed that picture, the owner of the picture could not recover damages beyond the value of the canvas and paint.1

In general the court will not disturb a verdict on the ground of damages being excessive. The courts used to say they have no means of estimating this value. And a new trial on the ground of excess will be refused. In one case a clergyman obtained £750 for a slanderous imputation of acts of immorality and misappropriation of the sacrament money." In like manner the court will be slow to grant a new trial for inadequacy of damages; and there must at least be a mistake of law by the judge or some miscalculation by the jury to justify it. When a clergyman recovered one shilling in a case where there had been cross libels, this was held to be no ground for a new trial.7 Yet where it was apparent the jury had made some compromise, and the inadequacy made it not a fair verdict, a new trial was allowed.8

Limitation of time for bringing action, and other incidents. In the Roman law the doctrine was, that if an injured person overlooked the injury at the time, he

1 Fisher v Clement, 10 B. & C. 472.

2 Hunt v Goodlake, 43 4 Du Bost v

L. J., C. P. 54. 3 Tozer Mashford, 6 Ex. 539. v Beresford, 2 Camp. 511. 5 Townsend Hughes, 2 Mod. 150. 6 Highmore Harrington, 3 C. B., N. S. 142. 7 Kelly Sherlock, L. R., 1 Q. B. 697; Forsdike v Stone, L. R., 3 C. P. 607.

8

Falvey Stanford, L. R., 10 Q. B. 54.

was held to condone it, and could not afterwards sue.1 Such doctrine is not followed in this country, for the time allowed for bringing an action of libel is six years from the date of publication, and for slander is two years. But the publication of a libel referred to is not necessarily the date of the first publication, as every sale is a fresh publication, and a fresh cause of action. And hence where the plaintiff had been libelled seventeen years before in a newspaper, and sent and purchased a copy of it, this sale of a copy was held a fresh cause of action. It is, however, the doctrine of the common law, that an action for slander or libel dies with the person slandered, and no statute has yet altered that state of things.4

Costs in actions for libel and slander.-When the jury give a verdict for any sum, even for a farthing, then the plaintiff is entitled to his costs, unless the judge or a court disallow them.5 And while in a county court an action of libel cannot be brought except by consent of both parties; yet if the action be brought in the high court by a plaintiff who has no means, the action may be remitted to be tried in a county court, unless the plaintiff will give security for costs, or a judge excuse this, owing to the nature of the action."

2 21 Jas. I. c. 16, § 3.
3 D. Brunswick
4 See 1 Pat. Com. (Pers.) 248.

1 Just. Inst. 4, 4, 12. v Harmer, 14 Q. B. 186. 5 Garnett v Bradley, L. R., 3 App. C. 944. § 23; 19 & 20 Vic. c. 108, § 23. 7 30 & 31

69 & 10 Vic. c. 108, Vic. c. 142, § 10.

CHAPTER XI.

COPYRIGHT.

First notions of copyright in English law.—The right now called copyright, though as familiarly known and understood as other rights, long struggled against the confusion of ideas which was apparent in all that the legislature, for two centuries after the discovery of printing, did relating to books, the chief product of that discovery. We have already seen, that it was a common notion long prevalent, that printing was a diabolic art-that types were worse than gunpowder or poison, the handling of which was thought essentially dangerous to government; and therefore that a licence from the Crown was required to enable any one to meddle with them, either as a printer or publisher. The judges at first seem to have imbibed the same notions, and when Scroggs and Jeffreys laid down the law, that no one could publish news of any kind, however innocent, without the king's licence, they were only faithfully interpreting the first loose thoughts that occurred to every one during the century preceding. It is true that it became gradually more and more apparent, that types had nothing about them essentially dangerous, and that after all printing was only an ordinary occupation, and that workmen became engaged in it from the same motives as they did in digging or ploughing, or weaving, or buying and selling cattle, and that the product of their labour differed in no respect from other products. But there was still another right involved beyond the mere printing, and that was the authorship of the thoughts, that gave value to the materials used in the whole process. This was indeed too abstract a notion at first for any legislature or any court to comprehend, and it

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