property or his reputation, or may arise from his being put in danger of life, limb, or liberty." Moreover, while in both libel and slander damages are, perhaps, in a great majority of cases, presumed,13 this cannot be said in case of malicious prosecution.1* And many authorities insist that before an action of malicious prosecution can be brought there must be interference with the plaintiff's person or a seizure of his property.15

SAME-WHAT CONSTITUTES.

167. Publication consists in

(a) The giving out of defamatory matter by the defendant;

(b) The taking in by a third person or third persons.

The Giving Out.

No amount of malice in thought can make silence or inactivity actionable as libel and slander. Unless the defamatory matter has been given out to some third person, there can be neither actual damages nor a basis on which the law can, with any show of reason, presume damage. There is no injury to the reputation.16 There is, however, no magic in the number of persons to whom the intelligence is communicated. A single person, though invisible,18 is But the communication must be to a third person." Where persons mutually engage in exchange of opprobrious epithets, neither can maintain an action for slander.20 A husband and wife

sufficient.

13 Shearw. Torts, 34.

14 Post, p. 627, "Malicious Prosecution."

17

19

15 Post, pp. 627, 628, "Malicious Prosecution"; 1 Starkie, Sland. & L. 300; Cooke, Defam. 87.

16 Generally, see Pittard v. Oliver [1891] 1 Q. B. Div. 474; Bacon v. Michigan Cent. R. Co., 55 Mich. 224, 21 N. W. 324; Young v. Clegg, 93 Ind. 371; Spaits v. Poundstone, 87 Ind. 522; Marble v. Chapin, 132 Mass. 225; Mielenz v. Quasdorf, 68 Iowa, 726, 28 N. W. 41.

17 Adams v. Lawson, 17 Grat. 250.

18 Desmond v. Brown, 33 Iowa, 13; Sheffill v. Van Deusen, 13 Gray, 304; Giles v. State, 6 Ga. 276.

19 Sheffill v. Van Deusen, 13 Gray, 304; Pavlovski v. Thornton, 89 Ga. 829, 15 S. E. 822; Shepheard v. Whitaker, L. R. 10 C. P. 502.

20 Goldberg v. Dobberton, 46 La. Ann. 1303, 16 South. 192. "The uttering of a libel to the party libeled is clearly no publication, for the purposes of a

may be so far one person that the statement by the one to the other is not publication, unless, for example, they are living apart,21 or a third person overhears the remarks.22 But communication to a wife by a third person of words defamatory to her husband is a legal publication.23 The testimony of ministers, who in their ministerial office have drawn from one statements of an ancient transac tion which is the ground of suit, is admissible to show publication of the slander.24

27

26

While an allegation that defamatory matter was "published" is a sufficient allegation that it was given out,25 a charge that it was "printed" has been held insufficient, 20 although printing implies passing through a compositor's room and should, therefore, perhaps be held to be prima facie publication. If the libel charged be con❤ tained in a sealed letter, read only by the plaintiff, there is no giv ing out to a third person.28 But it is otherwise if the letter refer in libelous words to the plaintiff, and a third person to whom it is sent reads it, even if such person be the plaintiff's wife 30 or clerk,31

29

civil action." Phillips v. Jansen, 2 Esp. 624; 726, 28 N. W. 41; 28 Am. Law Reg. 276, 413; Div. 635.

Mielenz v. Quasdorf, 68 Iowa,
Wennhak v. Morgan, 20 Q. B.

21 Wennhak v. Morgan, 38 Alb. Law J. 24; Sesler v. Montgomery (Cal.) 19 Pac. 686 (but see revisal in 78 Cal. 486, 21 Pac. 185); Trumbull v. Gibbons, 3 City H. Rec. 97. Such cases may also be regarded as involving privilege. 22 State v. Shoemaker, 101 N. C. 690, 8 S. E. 332.

23 Wenman v. Ash, 13 C. B. 836.

24 Vickers v. Stoneman, 73 Mich. 419, 41 N. W. 495.

25 Wilcox v. Moon, 64 Vt. 450, 24 Atl. 244; Id., 61 Vt. 484, 17 Atl. 742. 26 Sproul v. Pillsbury, 72 Me. 20; Prescott v. Tousey, 50 N. Y. Super. Ct. 428.

27 Baldwin v. Elphinston, 2 W. Bl. 1037.

28 Warnock v. Mitchell, 43 Fed. 428, and cases collected at page 430; Spaits v. Poundstone, 87 Ind. 522; Lyle v. Clason, 1 Caines, 581; Willard v. Mellor, 19 Colo. 534, 36 Pac. 148. And see Delaware Ins. Co. v. Croasdale, 6 Houst. 181; Rolland v. Batchelder, 81 Va. 664, 5 S. E. 695; Barrow v. Lewellin [1615] Hob. 62.

29 Young v. Clegg, 93 Ind. 371; Gough v. Goldsmith, 44 Wis. 262; Fowles v. Bowen, 30 N. Y. 20.

30 Wenman v. Ash, 13 C. B. 836, 22 Law J. C. P. 190-192, per Maule, J.; Schenck v. Schenck, 20 N. J. Law, 208.

31 Delacroix v. Thevenot [1817] 2 Starkie, 63.

34

36

or it is read aloud to a stranger by the writer.32 Indeed, a dictated typewritten letter,33 or a telegram sent, or a postal card mailed,35 or the signing and delivery of a petition, may necessarily involve the publication of libelous contents to third persons, The technical sense of publication is essentially different from the colloquial. Distribution of pamphlets,37 posting in a conspicuous place a notice calling attention to specimens of defective work and materials of an architect or contractor, is publication.38 And, generally, sale and delivery of a libelous publication 3 constitute legal publication. Every sale of a newspaper is a fresh publication, but a news vendor is not necessarily liable as a publisher of defamatory matter contained in what he sells. It is no publication to show a copy of a caricature to a person who asks to see it.*2

41

42

If the plaintiff do the act which constitutes publication, he cannot recover for the defamatory matter he has communicated. Therefore, if one sends another a sealed letter containing defamatory matter, and which the latter reads aloud, he cannot recover, because the publication is his own act.43 Again, the act of publishing is not the defend

32 Snyder v. Andrews, 6 Barb. 43. Cf. McCoombs v. Tuttle, 5 Blackf. 428432. And see Miller v. Butler, 6 Cush. 71.

Giving a letter containing matwhich he does, is a publication.

33 Pullman v. Hill [1891] 1 Q. B. Div. 524. ter defamatory of another to a clerk to copy, State v. McIntire, 115 N. C. 769, 20 S. E. 721. 34 Williamson v. Freer, L. R. 9 C. P. 393. 35 Robinson v. Jones [1879] L. R. 4 Ir. 391. So it is libel to send through the mail an envelope having indorsed thereon, in large letters, "Bad-Debt Collecting Agency." State v. Armstrong, 106 Mo. 395, 16 S. W. 601.

36 Cotulla v. Kerr, 74 Tex. 89, 11 S. W. 1058.

37 Woods v. Wiman, 122 N. Y. 445, 25 N. E. 919. And see Warnock v. Mitchell, 43 Fed. 428.

38 Dennis v. Johnson, 42 Minn. 301, 44 N. W. 68. And see Kay v. Jansen, 87 Wis. 118, 58 N. W. 245.

39 Duke of Brunswick v. Harmer, 14 Q. B. 185, 19 Law J. Q. B. 20; Thorne v. Moser, 1 Denio, 488; Staub v. Benthuysen, 36 La. Ann. 467; Belo & Co. v. Wren, 63 Tex. 686-723; Com. v. Blanding, 3 Pick. 304.

40 See post, notes 44, 45.

41 See post, notes 44, 45.

42 Smith V. Wood, 3 Camp. 323. And see Delacroix v. Thevenot, 2 Starkic, 63 (putting a libel in desk).

43 Wilcox v. Moon, 64 Vt. 450, 24 Atl. 244.

LAW OF TORTS-31

ant's, if he does not know of it. "A newspaper is not like a fire. A man may carry it about without being bound to suppose that it is likely to do any injury." 44 But it would seem that a man so far acts at his peril, with respect to defamatory matter which he has originated, that if, without intention, as by inadvertence on his part, it reaches and is known to third persons, he should be held to have published it.*5

45

The Taking in by Third Persons.

The essence of publication is not the employment of means to give out the defamatory matter, but the actual communication of intelligence to third persons. This is not accomplished until such matter is understood. Therefore, when the language is foreign, it must be shown to have been comprehended. If not understood,

46

47

44 Emmens v. Pottle, 16 Q. B. Div. 354, per Bowen, L. J., at page 358; Id., 55 Law J. Q. B. 51.

458 Harv. Law Rev. 206; Fraser, Torts, 85. But see Tompson v. Dashwood, 11 Q. B. Div. 43, 52 Law J. Q. B. 425. Cf. Pullman v. Hill, supra (with which it is inconsistent).

46 Sullivan v. Sullivan, 48 Ill. App. 435. See, also, French v. Detroit Free Press Co., 95 Mich. 168, 54 N. W. 711; McAllister v. Detroit Free Press, 95 Mich. 164, 54 N. W. 710. Where the alleged slanderous words are, "She is ornrier than two hells," it is competent to show by persons who heard the words what they understood them to mean. Wimer v. Allbaugh, 78 Iowa, 79, 42 N. W. 587. As to evidence of witnesses as to understanding of words, see Johnston v. Morrison (Ariz.) 21 Pac. 465; Republican Pub. Co. v. Miner, 12 Colo. 77, 20 Pac. 345.

47 Kiene v. Ruff, 1 Iowa, 482, Burdick, Lead. Cas. Torts, 215; Warmouth v. Cramer, 3 Wend. 395; Townsh. Sland. & L. (4th Ed.) 94; 1 Starkie, Sland. & L. 361. But, in an action for slander, a witness who heard the words spoken cannot testify as to what his understanding of them was. Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020. Cf. Dickson v. State (Tex. Cr. App.) 28 S. W. 815; Dressel v. Shippman (Minn.) 58 N. W. 684; Walker v. Hoeffner, 54 Mo. App. 554; Carpenter v. Willey, 65 Vt. 168, 26 Atl. 4SS; Howland v. George F. Blake Manuf'g Co., 156 Mass. 543, 31 N. E. 656; Halley v. Gregg, 82 Iowa, 622, 48 N. W. 974; Edwards v. Wooton, 12 Coke, 35; Hicks' Case, Hob. 375 (see these cases considered in Wernock v. Mitchell, 43 Fed. 428433). Defamatory words spoken by a lunatic, whose insanity was obvious, or known to all the hearers, are not actionable. Dickinson v. Barber, 9 Mass. 224-227; Bryant v. Jackson, 6 Humph. 199; ante, c. 2; Yeates v. Reed, 4 Blackf. 463. So, also, of words spoken or understood as a jest. Donoghue v. Hayes, 265. Drunkenness is no defense. Kendrick v. Hopkins, Cary, 133; Gates v. Meredith, 7 Ind. 440.

49

the publication is not actionable.+s When the language published may be understood in two senses, one very damaging to a certain person and the other harmless, the publisher cannot object that his readers gave it the sinister meaning. Accordingly, witnesses are generally allowed to state their own understanding of the words. spoken.50 In other words, the rule is that the plaintiff must prove a publication by the defendant in fact. That the third person had an opportunity of reading the libel or hearing the slander is not sufficient, if the jury are satisfied that he did not read the libel or hear the slander, even though it is clear that the defendant desired and intended publication.51

SAME-REPUBLICATION.

168. Not every repetition, but every republication, gives rise to a new cause of action.

53

"Every repetition," it was said in Earl of Northampton's Case, "is a new publication, and gives rise to a new cause of action." 52 So far as mere repetition is concerned, this rule has been abandoned. But there is an important, valid, and subsisting distinction between repetition and republication. "Republication is a second or subsequent publication in the same language. Repetition is a publication of language of the same import or meaning, as the language of a previous publication. Repetition is a subsequent publication, independent and distinct from the first publication. There may be a republication of a writing, i. e. a publication of the material written upon, with the writing thereon, and there may be a

48 Broderick v. James, 3 Daly, 481-484.

49 Jacksonville Journal Co. v. Beymer, 42 Ill. App. 443. See, also, Morey v. Morning Journal Ass'n, 49 Hun, 606, 1 N. Y. Supp. 475.

50 Freeman v. Sanderson, 123 Ind. 264, 24 N. E. 239. Cf. Wirner v. Allbaugh, 78 Iowa, 79, 42 N. W. 587.

51 As to libel, see Odger, Sland. & L. (2d Ed.) 154, citing Clutterbuck v. Chaffers, 1 Starkie, 471; Day v. Bream, 2 Moody & R. 55; Fonville v. MeNease, Dud. (S. C.) 303. As to slander, see Shetfill v. Van Deusen, 13 Gray, 304.

52 12 Coke, 132-134.

53 1 Hil. Torts, 410-415; Gilman v. Lowell, 1 Am. Lead. Cas. 242, note, and cases cited. Post, p. 546, "Mitigation."