intention to provoke the prosecutor and to excite him to a breach of the peace must be alleged, and that an allegation that it was sent with intent to injure, prejudice, and aggrieve him in his profession and reputation could not, in such a case, be supported. But the Recorder of London held the contrary in R. v. Brooke (7 Cox, C. C. 251); and in R. v. Price, tried at the Swansea Assizes on August 9th, 1881, Baggallay, L.J., after consulting Pollock, B., decided that the averment of an intention to provoke the prosecutor to a breach of the peace was not essential, the indictment ending as usual with the words "against the peace of our lady the Queen." Still, it will always be safer to insert the words which Abbott, J., thought necessary. Where a letter containing a libel on a married man is sent to his wife, "it ought to be alleged as sent with intent to disturb the domestic harmony of the parties." (2 Stark. 245; see also R. v. Benfield, 2 Burr. 980.) So in the case of a libel on a person deceased, an intent should be alleged to bring contempt and scandal on his family and relations, and so provoke them to a breach of the peace. (R. v. Topham, 4 T. R. 126, ante, p. 428; but now see R. v. Ensor, (1887) 3 Times L. R. 366; and Precedent No. 78, post, p. 752.)

An information for seditious libel is not bad because the words "seditious" and "seditiously" are not used, if it clearly appear on the face of the information that the publication was made with seditious intent. (R. v. M'Hugh, (1901) 2 Ir. R. 569.) And the same rule would no doubt be held to apply to an indictment.

There is no objection to joining several counts, each for a separate libel, in the same indictment (per Lord Ellenborough, in R. v. Jones, 2 Camp. 132); and the grand jury may of course ignore one count, and find a true bill on any other. Or a count for libel may be joined in the same indictment with a count for any other misdemeanour, though this will not be found convenient in practice, as the judge may call on the prosecutor to elect on which he will proceed (R. v. Murphy, 8 C. & P. 297); although he will not do so where the counts are all for libel, and for libels appearing at different dates in the same periodical. (15 Cox, C. C. 220.) But counts may not be added for any libels in respect of which the prisoner was not committed for trial, unless the express leave of the judge be obtained under 30 & 31 Vict. c. 35, s. 1, before the bill is presented to the grand jury. The obtaining of such leave is not a mere formality, but must conform to the spirit and intention of that Act; and the additional counts will be quashed,

if leave was granted on insufficient materials. (R. pros. Tyler v. Bradlaugh and others, 31 W. R. 229; 47 L. T. 477; 47 J. P. 71; 15 Cox, C. C. 156.) And now since the Newspaper Libel and Registration Act, 1881, s. 6, it is no longer in the power of the prosecutor, when the magistrate has only committed the defendant under sect. 5 for the common law offence, to add a count under sect. 4 of Lord Campbell's Act (as it was formerly; see 5 Q. B. D. p. 12; Boaler v. Holder, 54 L. T. 298). The count for the graver offence will now be quashed or amended so as to make the indictment correspond with the committal. (R. v. Felbermann and Wilkinson, 51 J. P. 168; Boaler v. Holder, (1887) 3 Times L. R. 546; 51 J. P. 277.) But where the defendant has been committed for trial and indicted under sect. 4 for publishing a libel, "knowing the same to be false," he may, nevertheless, be convicted of merely publishing a defamatory libel under sect. 5. (Boaler v. The Queen, 21 Q. B. D. 284; 57 L. J. M. C. 85; 37 W. R. 29; 59 L. T. 554; 52 J. P. 791; 16 Cox, C. C. 488.)

All who are in any way concerned in the composition or publication of a libel may be joined in the same indictment. For by the 24 & 25 Vict. c. 94, s. 8, "whosoever shall aid, abet, counsel or procure the commission of any misdemeanour, whether indictable at common law or by virtue of any statute, may be tried, indicted, and punished as a principal offender." But if one defendant denies that he is in any way connected with the libel, and desires to call his co-defendants as witnesses in support of his case, the judge will order him to be tried separately from the others, unless such separate trial would embarrass the prosecution more than a joint trial would prejudice the defendant. It is a question of the balance of convenience. (Per Lord Coleridge, in R. v. Bradlaugh and others, 15 Cox, C. C. 217, 220.)

Pleading to the Indictment.

When a true bill has been found by the grand jury, the defendant is arraigned, the substance of the indictment is read over to him, and he is then called on to plead. At common law he might

(1) Demur to the indictment;

(2) Plead to the jurisdiction of the Court; (3) Plead specially in bar

(a) Autrefois acquit ;

(b) Autrefois convict (see post, p. 683);
(c) Pardon;

(4) Plead guilty; or

(5) Plead the general issue-Not Guilty.

If the prisoner stands mute of malice, or does not answer directly to the charge, a plea of Not Guilty shall be entered for him, and the trial shall proceed as though he had actually pleaded the same. (7 & 8 Geo. IV. c. 28, s. 2.)

By virtue of 6 & 7 Vict. c. 96, s. 6, he may now also

(6) Plead a justification that the words are true and that it was for the public benefit that they should be published. (See ante, p. 443.) This plea may be pleaded with Not Guilty; it must be in writing and must be entered and filed at the Crown Office or with the clerk of assize, and a copy delivered to the prosecutor.

There is now but little use in demurring to an indictment except where the words are clearly not libellous in themselves, and are not reasonably susceptible of the meaning ascribed to them by the innuendo. In such a case it might be well to put an end to the case as quickly as possible. But if the demurrer be for a mere formal defect, the Court has power to amend, after the demurrer, either an information (R. v. Wilkes, 4 Burr. 2568; R. v. Holland, 4 T. R. 457), or even an indictment. (14 & 15 Vict. c. 100, ss. 1, 2, 3, 25.) If, on the other hand, the defect is one of substance, it will not be waived by pleading over, nor will it be cured by verdict; but the defendant may still bring error, or move in arrest of judg ment after conviction. (See 14 & 15 Vict. c. 100, s. 25.) Moreover, there is this danger in demurring, that the defendant may not demur and plead Not Guilty at the same time (R. v. Odgers, 2 Moo. & Rob. 479); hence, in strict law, if he fail on his demurrer, final judgment may be entered for the Crown on the whole case. (R. v. Taylor, 3 B. & C. 509, 515; 5 D. & R. 422.) But the Court has power to permit the defendant afterwards to plead over, and in these more merciful days will generally exercise that power. (R. v. Mitchell, 3 Cox, C. C. 93; R. v. Birmingham and Gloucester Ry. Co., 3 Q. B. 223, 233; 10 L. J. M. C. 136.)

The plea of Not Guilty puts the prosecutor to proof of every material allegation in the indictment. The defendant may show under this plea that the occasion of publication was privileged, and may indeed raise every other defence permitted him by law, except that the words or any part of them are true. As to the defence of fair and bona fide comment on a matter of public interest, if the libel contains no allegation of fact, but is merely comment, this defence can be raised under the plea of Not Guilty. (See ante, p. 185.) But if the libel contains allegations of fact, as distinct from comment,

every such allegation must be justified by a plea under Lord Campbell's Act; otherwise the defence of fair comment under the plea of not guilty will fail. (See ante, p. 188; also Precedents Nos. 26 and 70; and Penrhyn v. The "Licensed Victuallers' Mirror," (1890) 7 Times L. R. 1.)

It is only in the case of a defamatory libel on a private individual that the defendant may justify under Lord Campbell's Act. (Ante, p. 443.) And he does so at his peril; for placing such a plea on the record will be deemed an aggravation of his offence, should he fail to prove it. By the express words of Lord Campbell's Act, a plea of justification under sect. 6 shall be pleaded "in the manner now required in pleading a justification to an action for defamation." But in spite of these words there is no power in any Court to order particulars of such a plea to an indictment or information, or to strike it out. (Re Rea, 9 Cox, C. C. 401.) If sufficient details be not given in the plea, the only course is for the prosecutor to demur. (R. v. Hoggan, Times, November 4th, 1880.) To such a plea the prosecutor may reply generally, denying the whole thereof. If he does not reply, judgment will be given for the defendant. (R. v. De la Porte, 59 J. P. 617.) See Precedents of such plea and reply, Nos. 70, 71, 83 and 84. The other pleas mentioned above are now of rare occurrence. (See post, p. 756.)

Certiorari.

An application is frequently made to the King's Bench Division for a writ of certiorari to bring up an indictment for libel from another Court that it may be tried in the High Court. The application is frequently made before the indictment is found by the grand jury, the Court being asked to remove "any indictment which may be found." Where the indictment is found at the Assizes, no certiorari is necessary to bring the case into the High Court of Justice. A simple order of the King's Bench Division, that the record be brought into Court by the officer of the Circuit and filed in the High Court of Justice, is sufficient. (R. v. Dudley and Stephens, 14 Q. B. D. 273, 560.) In no other ways can the Court change the venue in a criminal case. (R. v. Casey, 13 Cox, C. C. 614; R. v. Hon. F. Cavendish, 2 Cox, C. C. 175.) The advantages obtained by the removal are, amongst others, that in the King's Bench Division a special jury can be secured, and that the defendant can move the Court for a new trial, if convicted.

Where the application is made by the Attorney-General officially, the writ issues as a matter of course. (R. v. Thomas, 4 M. & S. 442.)

O.L.S.

X X

But where a private individual applies for the writ, whether prosecutor or defendant, he will have to file affidavits showing some special ground for the removal, arising out of the circumstances of the particular case (Crown Office Rules, 1886, r. 29); and he must also enter into recognisances to pay all costs incurred subsequent to the removal, if he be ultimately unsuccessful. (16 & 17 Vict. c. 30, ss. 4, 5.) The application may in vacation be made to a judge at Chambers. (5 & 6 Will. & Mary, c. 11, s. 3; Crown Office Rules, 1886, r. 42.)

One of several defendants may obtain the writ; if he does, this will remove the indictment as to all. (R. v. Boxall, 4 A. & E. 513.) But the judge who grants the certiorari will require the defendant who applies for it to give security for the costs of the prosecution occasioned by the removal, in the event of any one of the defendants being convicted. (R. v. Jewell, 7 E. & B. 140; 26 L. J. Q. B. 177; R. v. Foulkes, 1 L. M. & P. 720; 20 L. J. M. C. 196.)

The affidavits should be entitled "in the King's Bench Division ” simply. The mere fact that the defendant desires a special jury is not alone a sufficient ground for removal. (R. v. Morton, 1 Dowl. N. S. 543.) Nor is it enough to show on affidavit that difficult questions of law may arise (R. v. Joule, 5 A. & E. 539), especially if the indictment be in the Central Criminal Court. (R. v. Templar, 1 Nev. & P. 91.) But if it can be proved that a fair and impartial trial of the case cannot be had in the Court below, the application will be readily granted. (R. v. Hunt and others, 3 B. & Ald. 444; R. v. Palmer, 5 E. & B. 1024.) No appeal lies to the Court of Appeal from the refusal of the King's Bench Division to grant a certiorari. (R. v. Rudge, 16 Q. B. D. 459; 55 L. J. M. C. 112; 34 W. R. 207; 53 L. T. 851; 50 J. P. 755.)

Formerly in cases of misdemeanour the Court made the order absolute in the first instance. (R. v. Spencer, 8 Dowl. 127; R. v. Chipping Sodbury, 3 N. & M. 104.) But now in all cases an order nisi only is granted, unless there be great urgency. (See Crown Office Rules, 1886, r. 28.) If an order nisi for such a writ be obtained, the Court below will, as of course, order the trial to stand over till the argument. If the order be made absolute, either prosecutor or defendant can apply for a special jury. (6 Geo. IV. c. 50, s. 30.) After the removal the defendant must appear in the King's Bench Division, and plead or demur to the indictment within four days, if not immediately; but the Court will grant him further time on good cause shown. (60 Geo. III. & 1 Geo. IV. c. 4, ss. 1, 2.)

The trial may take place, either at bar in the King's Bench Division at the Royal Courts of Justice, or at the Assizes on the civil