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of publication; it was clearly not evidence at common law; and it was not evidence under the above statute, which required a copy of the newspaper to be produced in evidence, that is to say, to be part of the evidence on which the rule nisi was drawn up and the court were of this opinion, and discharged the rule. R. v. Woolmer et al, 12 Ad. & El. 422.

And by sect. 9, "in any suit, prosecution or proceeding, civil or criminal, against any printer, publisher or proprietor of any newspaper, service at the house or place mentioned in any such declaration as aforesaid, as the house or place at which such newspaper is printed or published, or intended so to be, of any notice or other matter required or directed by this act to be given or left, or of any summons, subpena, rule, order, writ or process of what nature soever, either to enforce an appearance or for any other purpose whatsoever, shall be taken to be good and sufficient service thereof respectively, upon and against every person named in such declaration as the printer, publisher or proprietor of the newspaper mentioned in such declaration."

Also, it is a general rule, although not universal, that the court will not grant a criminal information for a libel on an individual, charging him with a particular offence, unless he deny the charge upon oath. R. v. Miles, 1 Doug. 284. And the rule may be deemed invariable, with these only exceptions, namely, where the prosecutor is abroad and at a great distance, or where the subject-matter of the libel is a general imputation and not an accusation of any particular offence, or where the accusation is of criminal language holden in parliament, R. v. Haswell, 1 Doug. 387, or where the accusation is against a public body of men. R. v. Williams, 5 B. & A. 595. It is usual to do this in the very words of the charge, R. v. Wright, 2 Chit. 162, where such denial does not include an implied admission of some part of it, or, in the language of pleading, where it does not amount to a negative pregnant. In like manner, where an application is made for a criminal information against a justice of peace for having improperly convicted the prosecutor, the court require from the latter an exculpatory affidavit, fully denying the charge. R. v. Webster, 5 T. R. 388.

The affidavit must be intituled "In the Queen's Bench," only; for until the information is filed there is no cause in court. R. v. Robinson, 6 T. R. 642, cit. R. v. Almon, Id. 642, n. It must be sworn in this country; for the court will not receive affidavits made abroad, either upon moving for the rule nisi, or in showing cause against it. R. v. Draper, 3 Smith, 391; but see R. v. Satirist, 3 Nev. & M. 532. But it may be sworn, either in court, or before a judge at chambers, or before a commissioner of the court for taking affidavits, not being the prosecutor's attorney. R. v. Gaoler of Ipswich, 2 Ld. Kenyon, 421. If sworn before a commissioner,

the county in which it is sworn must be stated in the jurat; R. v. Cockshaw, 2 Nev. & M. 378; and the court will not enlarge the rule, in order that the affidavit should be resworn, to remedy a defect in this respect.

Id.

It may be necessary to mention, that a defect in the affidavit on the part of the prosecution, cannot be remedied by any statement in the defendant's affidavits upon showing cause, where the defect is such that if the court were aware of it, they would not have granted the rule nisi. R. v. Baldwin. 8 Ad. & El. 168.

Affidavit to obtain a Criminal Information for a Libel in a

Newspaper.

In the Court of Queen's Bench.

day of

in

J. S. of gentleman, maketh oath and saith that [here state any matters of inducement, necessary to render the libel or its relevancy intelligible]. And this deponent saith that in the newspaper hereunto annexed, intituled bearing date the stant, is contained the following false scandalous and defamatory libel of and concerning this deponent, and of and concerning [any matter of inducement above set out,] that is to say: [here set out the libel]. And this deponent saith that [he verily believes that] the

above libel is published of and concerning him this deponent; and that by the words is meant

. [8c. shoning the relecancy of the libel, where it does not appear clearly upon the face of it]. And this deponent further saith that the said libel, so far as the same relates to him this deponent, is wholly false and unfounded in fact; and that this deponent did not, nor did he [negativing fully and expressly each part of the libel,] as in the said libel is falsely and scandalously alleged and stated. Sworn, &c.

Affidavit verifying the Stamp-office Certificate.

In the Queen's Bench.

A. B., of —, clerk to C. D. of -, gentleman, the attorney for J. S., maketh oath and saith, that he this deponent was present and did see E. F., esquire, one of Her Majesty's Commissioners of Stamps and Taxes, the person whose name is subscribed to the certified copy of the declaration hereto annexed, on

-instant, at the office of Stamps

and Taxes, at Somerset House, in the City of Westminster, as such Commissioner, sign his name to the certificate indorsed on the copy of the declaration of J. N., hereunto annexed, relating to the newspaper therein mentioned, and that the name, "E. F.," subscribed at the foot of the said certificate, is of the proper handwriting of the said E. F. Sworn, &c.

Motion and rule nisi.] We have already mentioned (ante, p. 22) within what time a motion for a criminal information against a justice of the peace must be made; and the rule there laid down is extended to motions for criminal informations against all other public officers, for anything done by them in the execution of their duties. R. v. Hartley et al.,

4 B. & Ad. 869 n. But in all other cases there is no precise time limited for making the motion; it should however be made promptly after the prosecutor became acquainted with the facts; or if delayed, the delay should be accounted for. R. v. Robinson, 1 IV. Bl. 542. Where a motion was made for a criminal information against the printer, publisher and proprietors, of a newspaper, for libels published in it in June, September and October 1832, and the motion was not made until the 21st January 1833, but the prosecutor in his affidavit swore that he had no knowledge of the libels until the month of January: the court held the application to be in sufficient time. R. v. Jollie et al., 4 B. & Ad. 867.

Upon the motion being made, whether granted or not, the affidavits must be handed in to the officer of the court to be filed. If the motion be granted, the rule nisi is drawn up at the crown-office, and you serve a copy of it, either personally or by leaving it with the wife or servant of the defendant at his dwelling-house, at the same time showing the original rule, or, in the case of a libel in a newspaper, at the house or building mentioned in the declaration of the printer or publisher as the place of printing and publication. 6 & 7 W. 4, c. 76, s. 9, ante, p. 34.

It may be necessary to mention, that the motion must be made by a barrister; the prosecutor, R. v. JJ. of Lancashire, Chit. 602, or his attorney, or any other private individual, will not be allowed to make it.

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Cause shown.] The defendant, upon being served with the rule, must bespeak office copies of the affidavits on which it

was obtained; for until he has done so, he cannot show cause against the rule. Having obtained these copies, let him prepare his affidavits in answer, intituling them "In the Queen's Bench" merely. It is said by Lord Kenyon, C.J., that it was decided in R. v. Robinson, that the affidavits in showing cause against rule for a criminal information, may be intituled in the prosecution or not. 6 T. R. 642, cit. But the authority of this case may be doubted; for there is no prosecution in court until the information is actually filed.

The affidavits on behalf of the defendant, should either contradict the material parts of the affidavits on the part of the prosecution, and show that the act done did not amount to any offence in law, or that the defendant did not commit it, see ante, p. 30,-or they should show that the defendant has been before indicted for the same offence, and acquitted,or that the intent of the prosecution is to try a civil right, such as a title to land, &c.,-or that the complaint is trifling, vexatious and oppressive, 2 Hawk. c. 26, s. 8,-or that the defendant is in humble circumstances, residing in a remote part of the country, and unable to bear the expense of such a mode of prosecution, R. v. Compton, Cald. 246,-or that the prosecutor has already adopted another remedy, see ante, p. 26,-or that the prosecutor is himself so far to blame, that the court will not grant him the information, see ante, p. 27,—or that this is the second application which has been made in the court on the same subject, see ante, p. 26; R. v. Smithson, 4 B. & Ad. 861: but see R. v. Eve et al., 5 Ad. & El. 780, ante, p. 28,-or the like.

If the defendant be not ready to show cause at the time appointed by the rule, the court, if satisfied with the reason, will enlarge the rule to some day in the same or in the next term; or, if from a pressure of business the rule cannot conveniently be disposed of within the term, the leading counsel on both sides may consent to its being enlarged. And a rule is drawn up accordingly.

When the case comes on for argument, it is argued by as many counsel as may be engaged on both sides, first on the part of the defendant, and then on behalf of the prosecutor. The court then decide, and make the rule absolute, or discharge it with or without costs.

This rule absolute is the " express order, to be given by the said court, in open court," mentioned in and required by the stat. 4 & 5 W. & M. c. 18, s. 1, before the Queen's coroner and attorney can file the information, as mentioned ante, p. 17.

Enlarged Rule.

Upon reading [the affidavit of rily given to the defendant to show

-], it is ordered that the

day of the next term be perempto

cause why an information should not be exhibited against him, for certain

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Costs.] In applications for criminal informations against justices of the peace, if the court think that the justice acted rightly and without any corrupt motive, they will discharge the rule with costs; but if they think that he acted irregularly, though without any corrupt motive, they will discharge it without costs. R. v. Cox, 2 Burr. 785. R. v. Palmer, Id. 1162. R. v. Wroughton, 3 Id. 1683. R. v. Fielding, 2 Id. 722. In one case, where it appeared that the attorney for the prosecutor was heard to say that "if it cost him 100l. he would lay Fielding (the justice) by the heels:" the court, in discharging the rule, ordered the defendant's costs to be paid by the prosecutor and his attorney. R. v. Fielding, 2 Burr. 654. But in a recent case, under similar circumstances, the court refused to order the attorney to pay costs, as he was no party to the rule. R. v. Thomas et al., 7 Ad. & El. 608. And in a still more recent case, where it was suggested that a party who had instigated the proceedings before the justices, out of which the application originated, and had taken an active part in them, should pay the costs, the court refused to make any order upon him, as he had not sworn any affidavit or otherwise taken a direct part in obtaining the rule. R. v. Dodson et al., 9 Ad. & El. 704.

And in all cases, if the court think the application frivolous or vexatious, or that the prosecutor has wilfully misrepresented or suppressed facts, they usually discharge the rule with costs.

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