1816. WYATT v. Gore. prudence with which it quali fies all its enactments for the public good, has administered an indirect check over any possible mischief which a bad character might effect under this shelter. Upon an application for a criminal information, the party libelled must deny upon oath, if the charge be capable of a distinct negative, the truth of the matter alleged. The Court will not assist him without this self-purgation. Ile must come forward with clean hands. They will not indeed, as a matter of course, permit the defendant, in his answer to a conditional rule, to justify the truth; but they produce the same effect, by compelling the prosecutor, when it is pos sible, to swear to the falsehood. And in respect to indict ments for libel, from the very manner in which an indictment is preferred, ante corpus comi tatus, by which country, it must be presumed, the character of the party is sufficiently known, a similar check is administered: add to this, the uniform practice of the Grand Jury to examine the prose cutor, upon oath, to the matters of the libel, which answers the same purpose as an exculpatory affidavit upon a motion for a criminal information Thus, we see the law of England stands clear of any immoral countenance of vice, or mischievous diminution of that salutary check upon bad men, public opinion and report. IV. What shall amount to the publication of a Libel. In order to maintain a civil or criminal proceeding for a libel, it is necessary to shew that it was published. Until the publication the act is not complete in its mischief; before it is dispersed abroad it can produce no present or actual injury either to the public or the individual; and, until then, there is a locus penitentiæ on the part of those concerned in the composing or writing. Therefore, if a man deliver by mistake a paper out of his study, it is not a publication, though it be a libel. 5 Mod. 167. The reading of a libel in the presence of another without knowing it to be a libel, with or without malice, does not amount to a publication, 4 Bac. Abr. 458, Also it is holden, that he who repeats part of a libel in merriment, without any purpose of defa. mation, is not punishable. But Hawkins says, the reasonable. ness of this opinion may justly be questioned, for that jests of this kind are not to be endured, and the injury to the party grieved is no way lessened by the merriment of him who makes light of it. Hawkins, P. C. c. 73. § 14. But it seems to be settled, that if he who has either read a libel himself, or who has heard it read by another, should afterwards maliciously read or repeat any part of it in the presence of others, or lend or shew it to another, he is guilty of an unlawful publication, Hawk. P. C. c. 73. § 10. But having a copy of a libel is no publication, Vin. Abr, 12. 224. It is said by Lord Coke, in the case de libellis famosis, to have been resolved; that if one finds a libel, and would keep himself out of danger, if it be composed against a private man, the finder may either burn it, or deliver it to a magistrate; but if it concerns a magistrate, or other public person, the finder ought presently to deliver it to a magistrate, to the intent that by examination and industry the author may be found out and punished. But it has been justly observed, that the not delivering it to a magis. trate was only punishable in the Star Chamber at the height of its despotism, and that the barely having a libel in one's custody was no of fence. 1 Vent. 3. ; contra semble, 2 Salk. 418; Lord Raym. 417. 3 Campb. 323. Upon the trial the libel must be produced; and before it is read, it must be proved that it was published by the defendant, or by others, with his privity. It is not competent to a defendant charged with having published a libel, to prove that a paper similar to that for the publication of which he is prosecuted, was published on for, mer occasions, by other per sons, who have never been prosecuted for it. Rex v. Holt, 5 T. R. 436. Proof that the libel was contained in a letter directed to the plaintiff, and delivered into the plaintiff's hands, is not sufficient proof of a publication to maintain an action; but an in, dictment or information will lie. No matter which is stated in any memorial or petition against the conduct of magistrates or public officers, shall be deemed a libellous publica. tion, if it be done bona fide with a view of obtaining re. dress; and likewise if it be addressed in the proper channel by which such redress may be had; that is, to the persons who may be presumed to have power to give such redress. 1816. WYATT v. GORE. As where the defendant, being Deputy Governor of Greenwich Hospital, compiled and wrote a large volume, of which he printed several copies, containing an account of the abuses of the hospital, and treating the characters of many of the officers of the hospital, (who were public officers) and Lord Sandwich in particular, who was then First Lord of the Admiralty, with much asperity. He distributed the copies to the governors of the hospital only; but it did not appear that he had given a copy to any other person. On a rule for an in formation for this libel, Lord Mansfield observed,-that this distribution of the copies to the persons only who were from their situations called on to redress grievances, and had from their offices competent power to do it, was not a publication sufficient to warrant a criminal information; and he seemed to think, that whether the paper were in manuscript or printed, under these circumstances, made no difference. Rex v. Baillie, M. T. 30 Geo. III. B. R. Oliver v. L. W. C. Bentinck, 3 Taunt. 456. and Jekyll v. Sir John Moore, 2 New Rep. 341. Holt's Law of Libel, 172. SITTINGS AFTER TRINITY TERM, 56 GEO. III. BEECHING and Others v. Gower. 1816. HIS was an action for money had and re- A banker's THIS ceived. The plaintiffs are bankers at Tun- promissory 6th it whose note is made likewise at Tunbridge, and holder has a sentitat London. The right to pre either place, and if refused in payment be tend that the bridge. On the 5th of March, 1816, the defend- payable at ant brought some notes to their bank, which he desired to exchange for Tunbridge notes; they accordingly gave him their own notes, and, amongst other notes, they received from him a 101. note of the Kentish Bank, payable at the banking house at Maidstone, and at Ramsbottom's and Co. in London. The plaintiffs sent the 10. note to London on the evening of the 5th; on the was presented for payment at Ramsbottom's, house stopt on that day, and the note was dishonoured. It was returned to the plaintiffs on the 7th, and notice was then given to the defendant; but he refused to pay it. Ramsbottom's house paid the whole of the 5th of March, and shut up on 6th. The Maidstone Bank, which had issued this note, paid the whole of the 6th, but shut up on the 7th. Maidstone is only fourteen miles from Tunbridge; and the plaintiffs had an agent there. VOL. I. Y the laches, to prove, that if payment had been demandbridge, which waste more ed at Tun convenient, and nearer would have been paid. place, the bill 1816. BEECHING and Others v. GOWER. When a witness, after his examination, missed from Best, serjeant, for the defendant. The plaintiffs have chosen to send this note to London, which was more than double the distance of Maidstone from Tunbridge. Had they sent it to Maidstone on the day on which they received it, or upon any time the next day, it would have been paid. They have been guilty of laches. GIBBS, C. J.-I am of opinion, as the note was payable at both places, that the plaintiffs had an option to present it at either. When the plaintiffs' and defendant's counsel had closed their case, the Chief Justice called up a has been dis- witness, (who had been examined and cross-examined before,) for the purpose of asking him a competency is not to be ques- question. From the answer which he gave, a doubt arose upon his interest. the box, his tioned. Best, serjeant, contended, that if a witness appeared interested in any stage of the trial, an objection might be taken to his competency; and if the objection were good, his evidence ought to be struck out. He claimed to be permitted to crossexamine him again for the purpose of proving him interested, and relied upon Stone v. Blackburne, 1 Esp. N. P. 37. GIBBS, C. J.-Formerly objections to the competency of a witness were only permitted to be taken on the voir dire: the rule, for the interests of justice, has been extended, and it is permitted counsel to take an objection to a witness at any time during his examination; but, when the witness |