CHAPTER VI.

PUBLICATION-PUBLISHER.

A publication is necessary-Meaning of the term publication-The language published must be understoodThe publication may be orally or in writing-What amounts to an oral and what to a written publication -Publication of effigy-Requisites of an oral publication-Requisites of a written publication-Time of publication-Place of publication-Who is a publisher -Republication and repetition, distinction betweenJoint publication-Liability for publication-Voluntary and involuntary publications-Liability of principal and agent-Newspaper Publisher-Bookseller.

$93. As heretofore observed1 (§ 23), for language to

To publish means not only a "giving out," but a "taking in." In English we have only one word to express the idea, in the German they have two words. They say of a book herausgegeben that it is "given out," but not that it is published until sales of it have been effected. The word "published" was formerly used as equivalent to exhibit; thus in an advertisement which appeared in "The Tatler," No. 113, Dec. 29, 1709, it announced that a picture will be published, meaning exhibited, at a certain place on a certain day.

"Publication [of a writing] is nothing more than doing the last act for the accomplishment of the mischief intended by it." (Rex v. Burdett, 4 B. & Ald. 126.)

"The sense in which the word published is used in law, is in uttering of the libel. Though in common parlance that word may be confined in its

affect another than its author the language must be published; that is to say, it must be communicated to some other than its author. There must be a publication.'

§ 94. Publication is an ambiguous term, employed to signify sometimes the matter published, sometimes an act of publishing only, and sometimes such an act of publishing as may subject the publisher to legal liability. Ordinarily the context will disclose in which of these several senses the term is employed.

§ 95. Every communication of language by one to another is a publication. But to constitute an actionable publication, that is, such a publication as may confer a remedy by civil action, it is essential that there be a publi cation to a third person, that is, to some person other than the author or publisher and he whom or whose affairs the language concerns (§ 107). No possible form of words can confer a right of action for slander or libel, unless there has been a publication to some third person. The

1 A fault very common in the English language; the Greek distinguishes between κτίσι and κτισμα, an act and a thing.

* 2 Starkie on Libel, 13, 14, citing 1 W. Saund. 132, note 2; Phillips v. Jansen, 2 Esp. Čas. 226; Hick's Case, Hob. 215; Rex v. Wegener, 2 Stark. Cas. 245; Force v. Warren, 15 C B. N. S. 806: Edwards v. Wooton, 12 Coke R. 35: Ahern v. Maguire, Arm. Mac. & Og. 39. Where the defendant, knowing that letters addressed to the plaintiff were opened and read by his clerk, wrote and sent a letter directed to the plaintiff, which was opened and read by his, plaintiff's, clerk, this was held to be a publication. (Delacroix v. Thevenot, 2 Stark. Cas. 63.) Where a letter, folded but not sealed, was delivered to a third person to be conveyed to the plaintiff, and was so conveyed without being read by any one, held there was no publication. (Clutterbuck v. Chaffers, 1 Stark. Rep 471; Day v. Bream, 2 Moo. & Rob. 54.) A letter intended for W., and which to him would have been privileged, was by mistake addressed to and opened by another, held privileged. (Tompson v. Dashwood, 11 Q. B. D. 43.) Where a writing is sent to the plaintiff,

and he, in the presence of a third person, repeats the contents of such writing to the writer, who admits having sent such a writing, this is not a publication of the writing to the third party. (Fonville v. McNease, 1 Dudley [So. Car.], 303.) So where a letter containing libellous matter was sent to the prosecutor, and he not being able to read, got his wife to read it for him, he afterwards, in presence of defendant and others, mentioned receiving the letter and its contents, and defendant admitted writing the letter, held, there being no evidence that defendant knew the prosecutor could not read, there was no publication. (State v. Syphrett, 2 So. East. Rep. 624.)

The delivery of a writing by the governor of a colony to his attorneygeneral, not for an official purpose, is an actionable publication. (Wyatt v. Gore, Holt, 299.) So is the delivery of a writing to any third person. (Ward v. Smith, 6 Bing. 749.) Giving a writing to a witness to copy, the copy being immediately sent to a foreign country and the original retained in the defendant's possession, is a publication upon which the cause of action arises here. (Kiene v. Ruff, 1 Clarke [Iowa], 482.)

husband of the author or publisher, or the husband or wife of him whom or whose affairs the language concerns, is regarded as a third person.1

§ 96. There cannot properly be said to be a communication of language by one to another, unless that other understands the signification or meaning of the language sought to be communicated. When we say the language must be understood by the one to whom it is published, we mean only that the matter published must be in a language which the person to whom it is published can interpret to some meaning. To one who does not understand the language in which a publication is made, it is as to him nothing more than unmeaning sounds or signs, and not language (§ 1).3

1 A sealed letter, addressed and delivered to the wife, containing a libel on her husband, is a publication. (Schenck v. Schenck, 1 Spencer, 208; Wenman v. Ash, 13 Com. B. 836; and see Mills v. Monday, Lev. 112; Rolland v. Batchelder, 5 So. East. Rep. 695.)

Gibbons wrote defamatory matter of Trumbull, and had fifty copies printed in pamphlet form in Massachusetts. Forty-five copies he retained, and five copies he sent to his wife in New Jersey, indorsing four of them with the names of certain persons, acquaintances of the wife, but without any instructions to the wife as to how she should dispose of the copies so sent her. The wife delivered two of the copies in New Jersey to the persons whose names were indorsed thereon, and the others she delivered in New Jersey to Trumbull, who exhibited them to various persons. On Trumbull suing Gibbons in New York for libel, it was contended for defendant, (1) that there was no publication by defendant; (2) or no publication within the State. The second point was overruled, and as to the first it was held that the delivery of the manuscript to be printed was a publication, although a delivery to a wife in confi

dence would not be a publication, yet in the case then before the court the wife acted as the agent of her husband, and her delivery of the pamphlets amounted to a publication by the defendant. (Trumbull v. Gibbons, 3 City Hall Recorder, 97.)

"The uttering of a libel by a husband to his wife is no publication." (Wennhak v. Morgan, 20 Q. B. D. 635.) Such utterance was held to be a publication in a case where husband and wife were living apart. (Sesler v. Montgomery, 19 Pac. Rep. 686. See 38 Alb. L. J. 24.)

2 Kiene v. Ruff, 1 Clarke (Iowa), 482; Miellenz v. Quasdorf, 22 The Reporter, 268.

3 "Scandalous words, if they be spoken in an unknown tongue which none of the auditors understand, will not bear an action, because they do no injury." (D'Anvers' Abr. 146, pl. 1, 2.) "Where slander is published in a foreign language, it is necessary to show that the hearers understood the language." (2 Starkie on Slander, 52; Fleetwood v. Curley, Hob. 267; Viner's Abr. tit. Actions for Words, A, b; 2 Stark. Ev. 844; Holt on Libel, 245; for the slander and damage consist in the apprehension of the hearers. (Cro. Eliz. 496, pl. 16.)

§ 97. The publication of language may, in reference to the place at which the publication is made, be either in the vernacular or in a foreign language. Where the language published is the vernacular of the place of publication, it requires no proof that those who heard or read it understood it; but it may be shown that those who heard or read such language did not in fact understand its signification. Where the language published is one foreign to the place of publication, it will not be assumed that those who heard or read understood it, but it may be shown that such hearers or readers did in fact understand what they heard or read.1 Where the matter published is in a language which he who hears or reads it understands, it will be assumed he understood it in the sense which properly belongs to it. In all cases of doubt, the question whether or not the third person to whom the publication was made understood the language employed, is a question of fact. How such third person understood the language, that is to say, the sense in which he understood it, is ordinarily a question of interpretation. In our courts, ordinarily a witness cannot be asked how he understood the language, or what he understood by the language. (§ 384.)

2

$98. The publication of language may be orally or in writing. The distinction between these two modes of

1 Amann v. Damm, 8 Com. B. N. S. 597. But in Ohio, it is held that where words are spoken in German in a German county, it will be presumed that they were understood, and no averment that they were understood is necessary. (Bechtell v. Shatler, Wright [Ohio], 107. See Steketee v. Kimm, 48 Mich. 322. And as to Welsh words, see what is said in I W. Saund. 242, note 1. See § 530. post.

2 Smart v. Blanchard, 42 N. H. 137; Wright v. Paige, 36 Barb. 438; Gibson v. Williams, 4 Wend. 320; Van Vechten v. Hopkins, 5 Johns. 211; Cresinger v. Reed, 25 Mich. 250.

A witness who has heard a conversation cannot be asked: "What did you understand by that?" without previously laying a foundation for such a question by showing that something had previously occurred in consequence of which the words would convey a meaning different from their ordinary meaning; having done so, the witness may then be asked: "What did you understand," &c. (Daines v. Hartley, 3 Ex. 200; II Law Times, 271; see 2 Starkie on Libel, 52; Fleetwood v. Curley, Hob. 267. See post, Construction, § 140, and Evidence, § 384.)