case the king against pain see r v Labouchere Q b d the deposition of witness  take ex part before a magistrate in a examination concern a misdemeanour can  be read in evidence on the trial of the party for such misdemeanour after the  death of the deponent for the defendant not be present before the magistrate  when they be take have no opportunity to crossexamine they S c salk S c comb S  c Carth S c ld ray S c holt information try at the bar by a Bristol jury  against one Samuel pain a minister there set forth that the defendant be the  composer author and publisher of a most malicious and wicked libel against the  late queen mary which be style her epitaph upon not guilty plead the case upon  the evidence appear to be thus pain write the libel it be dictate to he by  another he afterward put it into his study and by mistake deliver it to one  Brereton instead of another paper who transmit a copy thereof through several  hand to the mayor of Bristol which occasion the mayor to send for Brereton to  examine he which he do upon oath but not three the presence of pain the  defendant pain be afterward examine by the mayor and confess that he write the  libel but that he do neither modern compose or publish it but only deliver it  instead of another paper to Brereton but it be prove by his servant that he  send he to his study for a write and that he not bring the paper send for the  say pain fetch it himself and be in a room only with dr Hoyle the libel be  repeat but he can not tell by who but he remember the first verse Brereton be  now dead the question be whether his deposition take before the mayor shall be  give in evidence at this trial modern er p the counsel for the defendant  insist that it can not be do by law because Brereton be dead the defendant  have lose all opportunity of crossexamine he that this case be not like a  information before a coroner or a examination by justice of peace of person  accuse and afterward commit for felony because they have power by a particular  statute to take such examination both of the fact and circumstance and to put  it in write and certify it at the next general gaol delivery the statute Phil  mary c and the Phil mary c a but deposition of this nature be never allow to  be read as evidence in a civil cause and much less in a criminal case there be  no difference between civil action and criminal prosecution as to the evidence  of paper attorneygeneral v Le merchant term Rep notorious facts b before the  make those statute no single justice have power to take the information of  witness against criminal neither can the conservator at commonlaw take such  deposition they may remove or secure the disturber of the peace and the  justice of peace now may prepare business for the session but they have no  jurisdiction before the indictment find but if at any time before the statute  they have take such examination they be never give in evidence against the  party to which it be answer that the statute make no difference in this case  for the power of a justice of peace to take examination be not ground upon it  for he may examine a criminal by virtue of his office and the statute only  enforce the execution of his office by command he to take such examination so  that if he have commit it to write and transmit it to the gaol delivery it  will have be give in evidence to convict the party and the reason why such a  examination shall be read be not by virtue of any statutelaw but by the  authority of the person before who the oath be take and if such oath shall be  false the party may be indict for perjury modern the court thereupon send the  puisne judge to confer with the justice of the common plea who return the  chief justice declare that it be the opinion of both court that these  deposition shall not be give in evidence the defendant not be present when  they be take before the mayor and so have lose the benefit of a  crossexamination then the question arise upon the evidence to prove the  defendant guilty be these first whether he be the author and composer of the  libel second whether he be guilty of the publish it as to the first point  there be no proof that he be the composer of it or that he write it but by his  own confession before the mayor now if such confession shall be take as  evidence to convict he it be but justice and reason and so allow in the civil  law that his whole confession shall be evidence as well for as against he hawk  p c ch S a and then there will be no proof of a malicious and seditious  publication of this paper for he confess that it be deliver by mistake second  as to his publish it if the evidence have come up to prove that he read it  that will not be a publication and the write without the publish be no crime  it be true my Lord coke say   b that where it be malicious repeat or where a  copy of it be deliver to another this will be a publication but here be no  proof that the defendant repeat it in the presence of dr Hoyle for non constat  but that the doctor may read it to the parson the jury upon consideration of  the whole matter find a special verdict videlicet that a certain person to  they unknown do pronounce dictate and repeat the word contain in the libel  which the defendant do write and if that will make he guilty of compose and  make the libel then they find he guilty and as to the publication thereof they  find he not guilty this verdict be afterward argue that there be sufficient  matter find to make the defendant guilty for it be essential that a libel  shall be in write word may make a malicious speech but it be write which make  a libel and this agree modern er p with my Lord coke definition of a libel  that it be writing defamatoria   c modern this be the first time that it  become a write and therefore it differ from transcribe for that must be of  something in be before but in this case when the defendant hear the word  repeat he know they be defamatory and he can have no other purpose in write it  but to perpetute its memory and so he make it a libel which be not so before  it be argue for the defendant that there be three thing to be consider in this  verdict videlicet the write the make and the publication the defendant be  acquit of the last so that if the write do not amount to the make and compose  then he must be acquit of the whole now it can be say that write be either a  make or compose what be write for if that shall be true then a man can write  any thing but he must be the author of it the write may be some evidence to a  jury that he do it with a intention to publish it lamb case   a but he be  acquit of that so that to make the defendant guilty of this information he  must be find to be a contriver or a procurer of contrive it which can never be  by write a copy how far the bare act of transcribe a libel in criminal be a  matter of another consideration it be certain a offence and by consequence  punishable to transcribe it but it have be a question whether the write and  deliver it to the party himself be punishable by ail action on the case and it  be general hold that such a action do not lie at commonlaw because it be no  publication to deliver a libel to the party defame dr Wootons case   b which  be essential to make a man guilty of it but because it be a offence against  the king and tend to the breach of the peace it be punishable in the court of  king bench by information at the suit of the attorneygeneral now the reason  give in the book cro car vent c why a action will not lie in such a case be  because the party intend to be defame receive no injury for he can be defame  where there be no publication of the libel and the reason be the same in this  case because there be no publication and it be the same offence to write and  not to publish as to write and immediate to burn the libel last if write or  transcribe a libel be a crime yet as it be lie in this information and find by  the verdict the court can not give judgement on it for the jury have find it  general that if write be make and compose then they find he guilty but do not  say modus et form as lie in the information they shall have find quo mind he  do write it it have be frequent determine that the only question on the trial  of a indictment or information for a libel for the consideration of a jury be  the fact of publish and the truth of the innuendo and that whether the matter  be or be not a libel be a question of law for the consideration of the court  king v wither term Rep but doubt have arise whether it be not competent for  the jury on not guilty plead to give their verdict on the whole matter in  issue it be enact by the Geo c that on every trial of a indictment or  information for the make or publish any libel the jury may give a general  verdict of guilty or not guilty upon the whole matter put in issue and shall  not be require or direct by the judge to find the defendant guilty mere on the  proof of publication and of the sense ascribe to the word of the libel but it  be provide that the judge shall in his discretion give his opinion and  direction to the jury on the matter in issue in like manner as in other  criminal case d modern curian the make a libel be a offence though never  publish and if one dictate and another write both be guilty of make it to what  purpose shall any one write or copy after another but to show his approbation  of the content of the libel and the better to enable he to keep it in his  memory that he may repeat it to other now though the bare read a libel may not  be a crime because a man may be surprise and not understand what he be about  to read yet when one take it from another and hear it speak before he write it  this can be by surprise because he have time to exercise his think before he  write what he hear read so that it be not a libel by repeat but by write it it  do not appear upon the evidence that this libel be ever write before so that  the defendant must be guilty of the modern er p make it by first reduce it  into write though probable he may not compose it it be true the deliver it by  mistake be no publication and if there be no other evidence against he but his  own confession the whole must be take and not so much of it as will serve to  convict he but when he send his servant to his study for a paper when he do  not approve of the paper bring by the servant but fetch another it be not  material whether it be read by dr Hoyle or not for if that be the libel and  read by either it be a publication if one repeat and another write a libel and  a three approve what be write they be all maker of it for all person who  concur and show their assent or approbation to do a unlawful act be guilty so  that murder a man reputation by a scandalous libel may be compare to murder  his person for if several be assist and encourage a man in the act though the  stroke be give by one yet all be guilty of homicide say Adjournatur