than mere authorship is necessary in order to prove publication, and while the libel is still in the desk of the writer, it is not published, yet cases have occurred where something is deemed equivalent to delivery by the author to a third party. Thus proof that a libel has been published by B, and that in B's house a manuscript in L's handwriting is found nearly identical with the published copy, is admissible evidence that L published it.1 And the mode of proving handwriting in these cases does not differ from that in other cases.2 But it is no prima facie evidence of publication that B, having a printed copy, on request shows such copy of the libel to another.3 Nor is it any evidence of publication by B that the libel is in the handwriting of B's clerk or amanuensis.4

Liability of bookseller and shopkeeper for libels sold.-The bookseller is a publisher as well as the author and printer. With regard to selling a libellous book or paper, if in the ordinary course of business any servant sells it in a shop, this is deemed an act of publication by him who keeps the shop, whether he knew anything personally about the subject matter or not, unless he can prove that he expressly ordered the contrary, or that there was some trick or collusion against him.5 Erskine urged, in such a case, that if without the knowledge of the shopkeeper his servant sold a copy, the shopkeeper could at

1 Tarpley v Blabey, 2 Bing. N. C. 437; R. v Lovett, 9 C. & P. 463. 2 Where the only evidence that the defendant J. S. was the publisher of a newspaper was, that some one bought a copy in the office, and that his name was in the footnote at the end described as that of publisher, this was held no legal evidence of J. S. having published it.-R. v Stanger, L. R., 62 B., 352.

3 Smith v Wood, 3 Camp. 323.

4 Harding v Greening, 1 Moore, 479. Nothing could surpass the skill with which the Star Chamber obtained evidence of the authorship of a libel. HUDSON says that "In a case, 7 Hen. VIII., for the discovery of the handwriting of a libel, the books of all the tradesmen in London were to be viewed with two aldermen and a knight appointed by the Privy Council, to confer the hands and manner of writings at the Guildhall, whither they were to be brought, sealed for that purpose only. This was done for the discovery of the author."-Hudson's Star Ch., c. 11.

5 R. v Tutchin, 14 St. Tr. 1112; R. v Almon, 20 St. Tr. 838. And see 16 Parl. Hist. 1156.

most be guilty only of negligence, and ought not to be deemed guilty of maliciously publishing. And he referred to the analogous case of homicide, being murder or manslaughter according to the circumstances. But Lord Kenyon, C. J., said there was ample evidence of publication, and therefore of malice.1 Erskine urged in vain, that this was an exception to the general rule, that there is no criminal liability for the act of a servant without some participation of the master. At one time the mere fact of publishing a seditious libel, or even mechanically printing it, as a compositor does in the service of a master printer, without being cognisant of the libel, was indiscriminately held a criminal offence, irrespective altogether of the question of intention in the printer.2 And though counsel urged, that if this were so, then the postboy who carried the bag of letters would be equally liable, the judge said the case of the postboy must be considered when it arose, but the compositor was liable. At a later date it was conceded, that, though no trick had been shown, there may be such a thing as an unintentional or inadvertent publication in some cases, however much the law leans against any such lenient inference. And it was still later allowed, that a porter from a coach office, who merely carries a parcel of libels, of the contents of which he knew nothing, might escape the guilt, if a jury on the evidence thought he knew nothing about them.* And the judges, in 1820, were satisfied, that the boy who carries a letter to the post is not the person who publishes, but only the person who sent the boy and gave it to him.5

Liability of proprietor of newspaper for libel therein.-Again, Lord Kenyon, C. J., said the proprietor of a newspaper was answerable criminally as well as civilly for the acts or misconduct of his servants or agents in conducting such newspaper. That, he said, was the opinion of Lord Hale, Powell, J., and Foster, J., and all the high authorities had acted on it for a century. And when the

1 R. v Cuthell, 27 St. Tr. 662; 6 Camp. L. Ch. 518. Clerk, 1 Barn. 304; R. v Nutt, Ibid. 306; Fitz. 47. Topham, 4 T. R. 127. 4 Day v Bream, 2 M. & Rob. 55. J., R. v Burdett, 4 B. & Ald. 126.

6 R. v Walter, 3 Esp. 21. LORD TENTERDEN, C. J., defended this doctrine thus: "This was not a different principle from that which

libel is published in a newspaper, the sale of every copy of the paper is deemed a fresh publication and a fresh cause of action.1 And though the party libelled sent an agent to the newspaper office to buy a copy and it was bought, this was deemed a publication, for, as far as regarded the libeller, the injurious act was complete on delivery to such agent.2 Any person who sends the newspaper to a third party is also a person who publishes it. Indeed one judge said, that "not only the party who originally prints, but every party who utters, sells, gives, or lends a copy of an offensive publication is liable to be prosecuted as a publisher."4

Publishers and sellers of defamatory libels may, in some cases, escape liability.-The harshness of this rule of the law by which indiscriminate liability is imputed to the nominal publisher, or printer, or bookseller, whether he personally knew anything of the contents of the paper sold or printed, has been modified in criminal prosecutions by the Statute of 1843. Whenever on a trial of an indictment or information a presumptive case against the defendant is made out owing to a publication through another person by his authority, the defendant may prove, that such publication was made without his authority, consent, or knowledge, and not from any want of due care or caution on his part.5 And therefore where a proprietor of a newspaper took charge only of one department, but left the editing to a paid editor, who inserted a libel when such proprietor was absent and knew nothing of the matter, it was held, that the latter was

prevails in all other criminal cases. The rule is conformable to principle and to common sense. Surely a person who derives profit from and who furnishes means for carrying on the concern and entrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears; and he ought to be answerable, although it cannot be shown, that he was individually concerned in the particular publication. It would be exceedingly dangerous to hold otherwise, for then an irresponsible person might be put forward, and the person really producing the publication, and without whom it could not be published, might remain behind and escape altogether. R. v Gutch, 1 M. & M., 437.

1 D. Brunswick v Harmer, 14 Q. B. 189. Burdett, 4 B. & Ald. 126. 4 Bayley, J.,

Ald. 169. 56 & 7 Vic. c. 96, § 7.

3 R. v

2 Ibid. R. v Carlile, 3 B. &

M

at liberty, under the statute, to prove this fact, and so escape liability by showing, that the libel was not inserted with his authority or knowledge, and that he had not been guilty of any want of due care or caution. 1 But the rule, as thus modified, exists only in criminal cases, and the law, as before stated, is unmodified in civil actions.

Liability of third party for causing libel to be published in a newspaper.-Third parties may also incur liability as well as the publisher. Thus where the defendant told to a reporter of a newspaper a story, which he said would make a good case for his newspaper, and the reporter published it in the newspaper much as it was told him, the relator was deemed the person who published the story, and so was liable for it if it was libellous. It was said to be a good practical rule in such circumstances, that if one request another to write a libel for him, the former is answerable and must take his chance of the article being stronger than was contemplated. And in like manner if a person about to speak at a public or private meeting request the newspaper reporters to publish his speech, this will make the speaker liable for the published libel, though it be imperfectly condensed and made thereby worse against the party libelled.* In such cases it is for a jury to say, whether the speaker merely expressed a hope that the speech would be published, or was more definite, and said what amounted to a request, and so directly authorised it to be published.5

1 R. v Holbrook, 3 Q. B. D. 60. 157. 3 R. v Cooper, 8 Q. B. 533. 5 Ibid.

4 Exch. 169.

2 Adams v Kelly, 1 Ry. & M.

4 Parkes v Prescott, L. R.

CHAPTER IX.

THE CHARACTERISTICS OF LIBEL AND OF EXCUSABLE LIBELS.

Contents of a slander or libel.-We now come to that part of the definition of a defamatory libel or slander which consists in its being "an attack upon another's character." The mode in which the libel operates on the character of the person libelled is illustrated under several heads or situations, according to the contents of the libel and the kind of imputation involved. It may mean, that the libelled person had committed some criminal act, or something not quite amounting to that, yet very near it; or it may mean, that the libelled person has done something which shows, that he is unfit to carry on some business which he professes. These different classes of libel require some explanation.

Libel or slander imputing a crime.-One of the most serious of all libels or slanders consists in imputing to another the actual commission of some crime or indictable offence, for this so unmistakably detracts from any man's character and reputation, that to say, or write, or publish such imputation is a cause of action, whether or not the plaintiff has thereby suffered any loss or valuable consideration that can be estimated in money. And, as may be supposed, this imputation is seldom made in direct terms, but usually is to be implied out of some circuitous description more or less cogent. But whether it is express and direct, or circuitous and constructive, is merely a matter of evidence for courts and juries, and the result, however arrived at, is precisely the same. Such, for example, are the following imputations: Of robbing John White; 1 Rowcliffe v Edmonds, 7 M. & W. 12.

1