the prosecutor, warned by the demurrer, should think the objection of any moment, he may amend almost as a matter of course. (a)

There is no special demurrer in crown cases, nor need the grounds of demurrer be stated in the margin of the demurrer; but the point to be argued must be stated in the margin of the copies of the demurrer books.

Under the plea of not guilty the defendant is entitled to take advantage of every defect in the evidence for the prosecution, or to rebut that evidence by counter proof, to the effect either that the publication was not committed, or not wilfully committed (b), by him, nor by any person under his authority, or that such publication was made without his authority, consent, or knowledge, and did not arise from want of due care or caution on his part (c), or that the matter charged is not libellous, which may appear from the context (d), or other circumstances, as that it was published upon an occasion absolutely privileged, or upon an occasion conditionally privileged, and without malice.

Before the recent statute (e) the truth of the libel formed no answer to the criminal charge, but by this statute it is enacted, that on the trial of an indictment or information for a defamatory libel, the defendant having pleaded such plea as is thereinafter mentioned, the truth of the matters charged

(a) R. v. Holland, 4 T. R. 457; R. v. Wilkes, 4 Burr. 2528, 2532, 2566, 2568, 2573; R. v. Nixon, 1 Str. 185; R. v. Gregory, 1 Stark. 373; R. v. Stratton, 1 Doug. 239; Com. Dig. tit. "Information " (D. 4.)

(b) R. v. L. Abingdon, 1 Esp. 226; R. v. Holt, 5 T. R. 444. (c) 6 & 7 Vict. c. 96. s. 7. (d) R. v. Lambert and another, 2 Camp, 398.

(e) Stat. 6 & 7 Vict. c. 96. s. 6.

or

may be inquired into, but shall not amount to a defence, unless it was for the public benefit that the matters so charged should be published; and that to entitle the defendant to give evidence of the truth of such matters charged, as a defence to such indictment or information, it shall be necessary for the defendant, in pleading to the indictment information, to allege the truth of the matters charged, in the same manner required in pleading a justification to an action for defamation, and further to allege that it was for the public benefit that such matters should be published, and the particular facts by reason whereof it was for the public benefit that such matters charged should be published; and the prosecutor is at liberty to reply generally, denying the whole of this plea. It is further enacted, that if after such plea the defendant shall be convicted on such indictment or information it shall be competent to the court, in pronouncing sentence, to consider whether the guilt of the defendant is aggravated or mitigated by the plea, and by the evidence given to prove or to disprove it. The act contains provisoes, that the truth of the matters charged in the alleged libel complained of by the indictment or information shall in no case be inquired into without the plea of justification; that in addition to such plea it shall be competent to the defendant to plead a plea of not guilty; and that nothing in the act shall take away or prejudice any defence under the plea of not guilty which it was previously competent to the defendant to make under that plea to any action or indictment or information for defamatory words or libel.

According to this enactment the plea which it gives

is assimilated in point of form to the plea of justification in civil actions. It is unnecessary to do more than to refer to the rules upon this subject, as already laid down and illustrated when treating of the remedy by action. The same particularity is required in setting out the particular facts which render the publication beneficial to the public.

It is to be noted that this act applies only to defamatory libels, leaving the state of the law, with respect to seditious, blasphemous, indecent, and other public libels, in its former state. A bill, however, is now in the House of Lords, to enable the truth of a public libel to be proved after notice given. (ƒ)

THE only evidence required for the prosecution in cases of libel is, proof of the publication and of the material averments.

The correctness necessary in proving the libel has been already sufficiently noticed when treating of the civil action.

It may, however, be remarked, that the statute 3 & 4 W.4. c. 42. s. 23. does not apply to criminal trials for libels. The power of amending variances in these cases depends upon the statute 9 Geo. 4. c. 15., which has been already set forth. (a)

As the general rules of pleading do not apply to criminal cases, matter of inducement in an indictment or information is not admitted by a plea of not guilty.

With respect to the character of the prosecutor, where the libel consists of a reflection upon him in his official or professional capacity it is seldom necessary to prove his appointment to the office, or his admission

(a) Ante, p. 172.

to the profession, because this is usually assumed in the libel, and we have already seen that after proof of publication the libel may be used as evidence against the publisher of all the facts which it admits. (b) Thus, where the plaintiff alleged that he held a certain office and place of trust and confidence, to wit, the office of overseer of a certain common field, &c., and the terms of the alleged libel treated the plaintiff as holding an office of public trust, and charged him with not having given a proper account of the public property, it was held to be evidence of the averment, although the plaintiff's own witnesses showed that the plaintiff's office was not one of trust and confidence, and that he was not trusted with the receipt of money. (c)

It is usual in such cases, however, to adduce some evidence that the prosecutor acted as such officer, or exercised the profession stated. Where, however, the tenor of the libel is, to call in question the title of the prosecutor to his office or profession, and to charge him with having exercised its functions without legal authority, it seems necessary to prove the appointment or admission. (d)

It should also appear in the indictment, and be proved in evidence, that the special character belonged to the prosecutor at the time of the publication. (e)

A gazette is evidence to prove an averment that certain addresses have been presented to the king. (f)

(b) Supra, p. 149; Berryman v. Win, 4 T. R. 366; Jones v. Stevens, 11 Price, 235; Pearce v. Whale, 5 B. & C. 38; Smith v. Taylor, 1 N. R. 196.

(c) Bagnall v. Underwood, 11 Price, 621.

(d) Smith v. Taylor, 1 N. R.

196; 3 Bing. 432; 11 Moo. 308; R. v. Sutton, 4 M. & S. 548; 1 A. & E. 695.

(e) Tuthill v. Milton, Yel. 159; 1 Vin. Ab. 538; Cro. Jac. 222; Collis v. Malin, Cro. Car. 282.

(f) R. v. Holt, 5 T. R. 536.