K. B. HILARY TERM. 1791. Jan. 25. [123] MITCHELL v. OLDFIELD. If A. recover against C. and C. recover against A. and B. the Court will permit C. on motion to set off the damages which he has recovered against those obtained by A. on his undertaking that the bill of A.'s attorney in the first action shall be satisfied, he having a lien on the judgment for his costs.* In this action the plaintiff recovered a judgment against the defendant for 1821. 10s.: but the defendant, having also recovered in another action against this plaintiff and another, obtained a rule to shew cause why the debt and costs in the latter should not be set off against the judgment in the former action; suggesting (among other reasons) that Mitchell had absconded. Bearcroft now shewed on behalf of Mitchell's attorney in the first action; contending, That as he was not concerned as an attorney in the other action, he had a lien for his costs on the judgment obtained by his client. He also hinted, that perhaps the Court would not interfere at all in this case, inasmuch as one debt was due to the plaintiff alone; whereas the other was the joint debt of the plaintiff and another to the defendant and he observed, that this was not such a debt as could be set off under the statute. But * Owing to a conflict of decisions between this Court and the Court of Common Pleas as to the effect of a set-off in regard to the attorney's lien, rules of Court were made in 1832 (Hil. T. No. 93), and 1853 (Hil. T. No. 63), following the decisions of the King's Bench. The cases in Chancery adopt substantially the principle of the King's Bench. See Ex parte Rhodes, 15 Ves. 539; Wright v. Mudie, 1 S. and S. 266; Collett v. Preston, 15 Beav. 458. See now the statute 27 & 28 Vict. c. 127, s. 28. Cases under this statute are Bailey v. Birchell, 2 H. & M. 371; Throckmorton v. Crowley, L. R. 3 Eq. 196; Ex parte Cleland, L. R. 2 Ch. 308; In re Bank of Hindustan, L. R. 3 Ch. 125.-R. C. LORD KENYON, Ch. J. said: That this did not depend on the statutes of set-off; but on the general jurisdiction of the Court over the suitors in it: that it was an equitable part of their jurisdiction, and had been frequently exercised: but as to the other point, he observed, That the attornies and solicitors of the different Court have a lien on all papers in their hands, and judgments recovered, for their costs that in the Court of Chancery they were permitted to retain title deeds for that purpose; and he thought it right that the attorney in this case should be satisfied for his costs before the defendant was allowed to make the set-off. BULLER, J.: Though this Court have said, That they will not interfere on behalf of the attorney, and prevent the plaintiff settling his own cause without first paying the attorney's bill, yet when the adverse party, against whom a judgment has been obtained, applies to get rid of that judgment, the Court will take care that the attorney's bill is satisfied. The COURT made the rule absolute, on the defendant's undertaking to pay the attorney's bill, and on his entering a remittitur in the cause in which this defendant was plaintiff.‡ 1791. MITCHELL V. OLDFIELD. [ *124 } THE KING v. E. TOPHAM. (4 T. R. 126-130.) An indictment for publishing libellous matter, reflecting on the memory of a dead person, not alleging that it was done with a design to bring contempt on the family of the deceased, and to stir up the hatred of the King's subjects against them, and to excite his relations to a breach of the peace, cannot be supported. Proof that the defendant gave a bond to the stamp-office for the duties on the advertisements in a newspaper, and had occasionally applied at the stamp-office respecting the duties, is evidence that he is the publisher. (See Reg. v. Labouchere (1884) 12 Q. B. D. 320; 53 L. J. Q. B. 362.) THE defendant was indicted for a libel, reflecting on the memory of the late Earl Cowper; on the trial of which, before and Randle v. Fuller, 6 T. R. 456. + Vide Welch v. Hole, Dougl. 226. ‡ See Read v. Dupper, 6 T. R. 361, 1791. Jan. 29. [126] 1791. THE KING v. E. TOPHAM. [ *127 ] Mr. Justice Buller, the defendant was found guilty. A rule was obtained in last Michaelmas Term, to shew cause either why a new trial should not be granted, or why the judgment should not be arrested. Erskine, Chambre, Garrow, and Martin, shewed cause against the rule; and Mingay, Graham, and Conste, supported it. These questions were argued very much at length on general *principles; and the principal case cited in support of the indictment was that in 5 Co. 125, de libellis famosis. The COURT took time to consider of the questions; and now LORD KENYON, Ch. J. delivered the opinion of the Court: This was an indictment for a libel, tried before my brother BULLER, who left to the consideration of the jury the two questions which generally arise on these trials; namely, Whether the defendant were or were not the publisher? and Whether the innuendos were made out?-and the jury found the defendant guilty. An application was made in the last Term for a new trial, or to arrest the judgment. The grounds for the former were, that another question should have been left to the jury, namely, Whether this paper were published in the spirit of a biographer, or with a malicious intention to defame and vilify the character of Lord Cowper? Of the first question which the jury determined, Whether the defendant were or were not the publisher? there can be no doubt whatever; the evidence was perfectly satisfactory. It was proved that the paper was sold at the office; that the defendant, as proprietor of the paper, had given a bond to the stamp-office, pursuant to the 29 Geo. III. c. 50, s. 10, for securing the duties on the advertisements: and that he had from time to time applied to the stamp-office respecting the duties on the paper. It is impossible therefore to say that this was not strong evidence to be left to the jury to shew that he was the publisher. Then it was asked at the bar, Shall every person who is a proprietor of a paper, as a feme covert, an infant, or a trustee, be answerable criminally for the acts of the agent, in inserting libellous matter in the paper? To that question it is 1791. v. E. TOPHAM. sufficient to answer, That this is not one of those cases. This was the case of an adult; and this unquestionably was proper THE KING evidence to the jury, who have drawn the only conclusion which, in the discharge of their duty to themselves and the public, they could draw. Then it was argued that, even supposing there was sufficient evidence of publication, there was no evidence of a criminal intent in the defendant. To this I can answer in the words of Lord MANSFIELD, in R. v. Woodfall, That "where the act is in itself unlawful (as in this case) the proof of justification or excuse lies on the defendant; and, in failure thereof, the law implies a criminal intent." There may indeed be cases, and so it was admitted in R. v. Nutt,‡ of a publication in point of law, where no criminal intention can be imputed to the party; as *where a person delivers a letter, without knowing its contents, or delivers one paper instead of another. But here no evidence was offered to the jury to disprove the publication: the case was nakedly left to them to make that inference, necessarily arising from the publication of a paper, which at present I am supposing to reflect on the memory of the nobleman mentioned in the indictment. Therefore, we are of opinion that the questions put to the jury were the only questions which it was the duty of the judge to leave to them, and that they have drawn the only inference which could fairly be drawn from that evidence; and consequently that there is no ground for a new trial. The next question is, Whether or not the judgment ought to be arrested? and that question is supposed to have some novelty in it. The only judicial decision on this subject, which was cited at the bar, was that in 5 Co.; the case de libellis famosis; where it is said, that publications defamatory of dead persons are libellous; and the reason given is, because it tends to stir up others of the same family, blood, or society, to revenge, and to break the peace, by provoking them to vindicate the memory of the deceased, and to wipe off that stain which the reflections on the ancestor may cast upon them. But it is to be observed, that that was not the point in judgment; for it was a libel on the living archbishop as well as on his predecessor; and therefore [ *128 ] 1791. E. TOPHAM. [ *129 ] the judgment for the former might well have been sustained, THE KING without going into the other point incidentally mentioned by the Court. In 1 Hawk, P. C.† it is said, "The chief cause for which the law so severely punishes all offences of this nature (libels) is the direct tendency of them to a breach of the public peace, by provoking the parties injured, and their friends and families, to acts of revenge; which it would be impossible to restrain by the severest laws, were there no redress from public justice for injuries of this kind, which of all others are most sensibly felt." Now it is fit to compare the manner in which this indictment is drawn, with others of a similar nature. This professes to be a libel, merely reflecting on the memory of the late Earl Cowper; and it does not state that it tended to excite his relations to revenge, and a breach of the peace. In other cases, particularly in those reflecting on King William, the indictment charged, that they were published to slander the government, ‡ with a view to counteract the revolution. We have seen the indictment in R. v. *Critchley; § in which it was alleged that the defendant, "intending to vilify and scandalize the memory of Sir C. Gaunter Nicoll, &c. and to induce a belief that the said Sir C. Gaunter Nicoll had obtained the Order of Knighthood of the Bath by vile and scandalous means; thereby reflecting on the government which has the distribution of honours; "that he had acted as an enemy to his kingdom, and had voted as a member of parliament corruptly and perniciously, contrary to his duty, &c.; and maliciously to fix a mark of infamy, contempt, and dishonour, on the memory, name, and family, of the said Sir C. G. Nicoll, &c. and to stir up the hatred and evil will of the subjects of the King against the family and posterity of the said Sir C. G. Nicoll." Now to say, in general, that the conduct of a dead person can at no time be canvassed: to hold that, even after ages are passed, the conduct of bad men cannot be contrasted with the good, would be to exclude the most useful part of history. And therefore it must be allowed that such publications may be made fairly and honestly. But let this be done whenever it may, whether soon or late after the death of the party, if it be † 1 Hawk. P. C. c. 73, s. 3. Carth. 405. § Hil. 7 Geo. II; 4 T. R. 129, n. |