Libels against the memory of the dead, which have a tendency to create a breach of the peace, by inciting the friends and rela, tives of the deceased to avenge the insult of the family, render their authors liable to in dictment. The malicious intention of the defendant to injure the family and posterity of the deceased must be expressly averred and clearly proved. 5 Coke, 125 ; 4 Term, 126, 129, note ; Binn. Penn. 281 ; Heard, Libel & S. 72, 348.
If the matter is understood as scandalous, and is calculated to excite ridicule or abhor rence against the party intended, it is libel lous, however it may be expressed. 5 East, 463; 1 Price, Exch. 11, 17; Hob. 215; Chitty, Crim. Law, 868 ; 2 Campb. 512.
11. The malicious reading of a libel to one or more persons, it being on the shelves in a bookstore, as other books, for sale ; and where the defendant directed the libel to be printed, took away some and left others : these several acts have been held to be publi cations. The sale of each copy, where several copies have been sold, is a distinct publica tion and a fresh offence. The publication must be malicious: evidence of the malice inay be either express or implied. Express
proof is not necessary ; for where a man pub hshes a writing which on the face of it is libellous, the law presumes he does so from that malicious int,ention which constitutes I the offence, and it is unnecessary, on the pars of the prosecution, to prove any circumstance from which malice may be inferred. But no allegation, however false and malicious, con tained in answers to interrogatories in affi davits duly made, or any other proceedings in courts of justice or petitions to the legis lature, are indictable. 4 Coke, 14; 2 Burr. 807; Hawkins, Pl. Cr. b. 1, c. 73, 8.8; 1 Saund. 131, n. 1 ; 1 Lev. 240 ; 2 Chitty, Crim. Law, 869 ; 2 Serg. & R. Penn. 23. It is no defence that the matter published is part of a docu ment printed by order of the house of com mons. 9 Ad. & E. 1. See JUDICIAL PRO CEEDINGS.
The publisher of a libel is liable to be pun ished criminally by indictment, 2 Chitty, Crim. Law, 875 ; or is subject to an action on the case by the party grieved. Both rpmedies may he pursued at the same time. See, generally, 2 Bishop, C rim. Law ; Heard, Libel & S.