英文法律词典 L-32

LIBEL, practice. A libel has been defined to be "the plaintiff's petition or allegation, made and exhibited in a judicial¹ process, with some solemnity of law;" it is also, said to be "a short and well ordered writing, setting forth² in a clear manner, as well to the judge as to the defendant³, the plaintiff's or accuser's intention in judgment⁴." It is a written statement by a plaintiff, of his cause of action, and of the relief he seeks to obtain in a suit. Law's Eccl. Law, 147; Ayl. Par⁵. 346; Shelf. on M. & D. 506; Dunf Adm. Pr. 111; Betts. Pr. 17; Proct. Pr. h. t.; 2 Chit. Pr. 487, 533.

2. The libel should be a narrative⁶, specious⁷, clear, direct, certain, not general, nor alternative. 3 Law's Eccl. Law. 147. It should contain, substantially, the following requisites⁸: 1. The name, description, and addition of the plaintiff, who makes his demand by bringing his action. 2 The name, description, and addition of the defendant. 3. The name of the judge with a respectful designation of his office and court. 4. The thing or relief, general or special, which is demanded in the suit. 5. The grounds upon which the suit is founded. All these things are summed up in Latin, as follows;

Quis, quid, coram quo, quo jure petitur, et a quo, Recte compositus quique libellus habet:

which has been translated,

Each plaintiff and defendant's name, and eke¹⁰ the judge who tries the same, The thing demanded and the right whereby You urge to have it granted instantly: He doth a libel write and well compose, Who forms the same, emitting none of those.

3. The form of a libel is either simple or articulate. The simple form is, when the cause of action is stated in a continuous narration¹¹, when the cause of action can be briefly¹² set forth. The articulate form, is when the cause of action is stated in distinct allegations, or articles. 2 Law's Ecel. Law, 148; Hall's Adm. Pr. 123; 7 Cranch, 349. The material facts should be stated in distinct articles in the libel, with as much exactness and attention to times and circumstances, as in a declaration at common law. 4 Mason, 541. Pompous¹³ diction and strong epithets¹⁴ are out of place in a legal paper designed to obtain the admission of the opposite party of the averments it contains, or to lay before the court the facts which the actor will prove.

4. Although there is no fixed¹⁵ formula for libels and the court will receive such an instrument from the party in such form as his own skill or that of his counsel may enable him to give it, yet long usage has sanctioned forms, which it may be most prudent¹⁶ to adopt. The parts and arrangement of libels commonly employed are,

5. - 1. The address to the court; as, To the Honorable John K. Kane, Judge of the district court of the United States, within and for the eastern district of Pennsylvania.

6. - 2. The names and descriptions of the parties. Persons competent to sue at common law may be parties libellants, and similar regulations obtain in the admiralty courts and the common law courts, respecting those disqualified from suing in their own right or name. Married women prosecute¹⁷ by their husbands, or by prochein ami, when the husband has an adverse¹⁸ interest to hers; minors¹⁹, by guardians²⁰, tutors, or prochein ami; lunatics and persons non compos mentis, by tutor, guardian²¹ ad litem, or committee; the rights of deceased persons are prosecuted²² by executors or administrators²³; and corporations are represented, and proceeded against as at common law.

7. - 3. The averments or allegations setting forth the cause of action should be conformable to the truth, and so framed as to correspond with the evidence. Every fact requisite⁹ to establish the libellant's right should be clearly stated, so that it may be directly met by the opposing party by admission, denial or avoidance; this is the more necessary because no proof can be given, or decree rendered, not covered by and conformable to the allegations. 1 Law's Eccl. Laws, 150; Hall's Pr. 126; Dunl. Adm. Pr. 113; 7 Cranch, 394.

8. - 4. The conclusion, or prayer for relief and process; the prayer should be for the specific relief desired; for general relief, as is usual in bills in chancery; the conclusion should also pray for general, or particular process. Law's Eccl. Law, 149; and see 3 Mason, R. 503. Interrogatories are sometimes annexed²⁴ to the libel; when this is the case, there is usually a special prayer, that the defendant may be required to answer the libel, and the interrogatories annexed and propounded²⁵. This, however, is a dangerous practice, because it renders the answers of the defendant evidence, which must be disproved by two witnesses, or by one witness, corroborated²⁶ by very strong circumstances.

9. The libel is the first proceeding²⁷ in a suit in admiralty in the courts of the United States. 3 Mason, R., 504. It is also used in some other courts. Vide, generally, Dunl. Adm. Pr. ch. 3; Bett's Adm. Pr. s. 3; Shelf. on. M. & D. 606; Hall's Adm. Pr. Index, h. t.; 3 Bl. Com. 100; Ayl. Par. Index, h. t.; Com. Dig. Admiralty, E; 2 Roll. &b. 298.