endangered. (e) But where a count alleged that the defendant, intending to defame the Duke of Brunswick, published a libel containing divers false and malicious matters and things of and concerning the said duke, that is to say: We should think that no lady would admit to her society such a crack-brained scamp as the Duke of Brunswick (meaning the said duke), the Court of Exchequer Chamber held that these averments showed sufficiently, without more formal introduction, that the libel was of and concerning the duke.(ƒ) Where a libel is charged to be of and concerning the government of the kingdom, though it do not in express terms impute to the government any of the facts which it mentions, the Court is to judge from its whole tenor and import (understanding it as other men would understand it) whether it does not mean to cast that imputation. And as an imputation upon some part of a body of men may be a libel, though it does not define what part it means, an allegation that the defendant published of and concerning the said persons, and an innuendo that he meant the said persons, will be understood to apply to that undefined part. An information stated, that the defendant, intending to excite hatred against the government of the realm, and to cause it to be believed that divers subjects had been inhumanely killed by certain troops of the King, published a libel of and concerning the government of this realm, and of and concerning the said troops, which libel stated, that the defendant saw with abhorrence, in the newspapers, the accounts of a transaction at Manchester, and alleged, that unarmed and unresisting men had been inhumanly cut down by the dragoons (meaning the said troops), and then commented strongly upon this being the use of a standing army, and called upon the people to demand justice, &c.; but it did not, in terms, say, that the dragoons acted under the authority or orders of the government. After conviction, a motion was made in arrest of judgment, on the ground that it did not sufficiently appear that the libel was written of and concerning *the government, nor of or concerning what *353] troops it was written: but the Court held, that it was obvious, from its whole tenor and import, that it meant to cast imputations upon the government; that it was a libel to impute crime to any of the King's troops, though it did not define what troops in particular were referred to; and that the innuendo of "the said troops" meant the undefined part of those troops.(g) It is the duty of a judge to say whether a publication is capable of the meaning ascribed to it by an innuendo; but when the judge is satisfied of that, it must be left to the jury to say whether the publication has the meaning so ascribed to it. (h) Where written or printed matter in itself imports a libel on a person, no statement of extrinsic circumstances, by way of inducement, is necessary. It is no objection, therefore, in arrest of judgment that words are not explained by an innuendo where they are commonly enough understood in a libellous sense to warrant a jury in so applying them; and if, in such a case, there be innuendos improperly enlarging the sense, they may be rejected as surplusage after verdict; (k) for on motion in arrest of judgment, or on error, an innuendo, which is not warranted by the words themselves, or properly connected with them by prefatory matter, may be rejected.(7) Thus, where on error in the House of Lords the judges were asked, "If a declaration in an action of libel contains an innuendo, which extends the meaning of the words in the libel, can the innuendo be rejected as surplusage, without prejudice to the question whether the matter complained of gives a cause of action?" The judges answered that it might be rejected as repugnant and void. But the case would be different if the words were capable of two senses, and the innuendo ascribed one meaning to them, and was good on the (e) Gregory v. The Queen, 15 Q. B. 974 (69 E. C. L. R.). (h) Blagg v. Sturt, 10 Q. B. 899 (59 E. C. L. R.). Hoare v. Silverlock, 12 Q. B. 624 (64 E. C. L. R.). See Homer v. Taunton, 5 H. & N. 661, where there was no innuendo to explain "truckmaster," and it was held that it was properly left to the jury to say whether it was used in a defamatory sense, though no evidence was given to explain its meaning. (k) Harvey v. French, 2 Tyrw. 585; 1 C. & M. 11. (2) Williams v. Stott, 3 Tyrw. 688; 1 C. & M. 675, per Bayley, B. 353 face of it. And the House of Lords held accordingly.(m) If there be contained in the alleged libel matter which is capable of receiving the interpretation put upon it by an innuendo, there is no fault in the count for not having explanatory averments to fix and point the libel. But generally if the words written or spoken cannot apply to the individual, no previous averments or subsequent innuendos can help to give the words an application which they have not. "Suppose the words to be, a murder was committed in A's house last night,' no introduction can warrant the innuendo meaning that B. committed the said murder,' nor would it be helped by the finding of the jury for the plaintiff. For the Court must see that the words do not and cannot mean it, and would arrest the judgment accordingly."(n) But if an innuendo ascribes to certain words a particular meaning, which cannot be supported in evidence, the innuendo, if well pleaded in form, *cannot be repudiated on the trial, so as to let in proof that the words have another meaning.(0) If words be laid to be uttered with intent to convey [*354 a particular meaning to persons present, it must be proved that the party uttering them had that meaning, and that they were so understood by the hearers;(p) and the whole of an innuendo must be proved, unless it is bad on the face of it.(g) If one man repeats a libel, another writes it, and a third approves what is written, they will all be makers of the libel; and it may be laid down generally that all who are concerned in composing, writing, and publishing a libel, are guilty of the misdemeanor, unless the part they had in the transaction was a lawful or an innocent act;(r) and ignorance has been held not to excuse. Thus upon an information against the defendant, for printing and publishing a libel, the evidence was, that he acted as servant to the printer, and clapped down the press; and few or no circumstances were offered of his knowing the import of the paper, or being conscious that he was doing anything illegal; and Raymond, C. J., held that this made the defendant guilty, and so the jury found him.(s) But there must be a publication; and the mere writing or composing a defamatory paper by any one, which is confined to his closet, and neither circulated nor read to others, will not render him responsible; nor will he be held to have published the paper, if he deliver it, by mistake, out of his study.(t) But this position admits of great doubt, and two very great judges seem to have been of opinion, that one who composes or writes a libel with intent to defame another, is guilty of a misdemeanor, although the libel be not published.(u) A count charging a defendant with having an obscene libel in his possession, with intent to publish it, seems to be bad.(v) And (m) Barrett v. Long, 3 H. L. C. 395. (n) Solomon v. Lawson, 8 Q. B. 823 (55 E. C. L. R.), per curiam. (6) Williams v. Stott, supra. (p) Per Bayley, B., Ibid., citing Woolnoth v. Meadows, 5 East 470. See as to the office and nature of an innuendo: 1 Stark. on Libel 418, et seq.; Clegg v. Laffer, 10 Bing. 250 (25 E. C. L. R.) ; 3 M. & S. 727; Day v. Robinson, 1 Ad. & E. 554 (28 E. C. L. R.); 4 N. & M. 884; West v. Smith, 1 T. & G. 825; Kelly v. Partington, 5 B. & Ad. 645 (27 E. C. L. R.). (4) Per Bayley, B., Williams v. Stott, supra. (r) Bac. Abr. tit. Libel (B.) 1. (8) Rex v. Clerk, 1 Barnard 304. Sed qu. and vide Day v. Bream, post, p. 371. (1) Rex v. Paine, 5 Mod. 165, 167. (u) Lord Tenterden, C. J., and Holroyd, J., in Rex v. Burdett, 4 B. & A. 95 (24 E. C. L. R.). Lord Tenterden said, "The composition of a treasonable paper intended for publication, has, on more than one occasion, been held an overt act of high treason, although the actual publication had been intercepted or prevented, and I have heard nothing on the present occasion to convince my mind that one who composes or writes a libel with intent to defame, may not, under any circumstances, be punished, if the libel be not published." Holroyd, J., said, "Where a misdemeanor has been committed by writing and publishing a libel, the writing of such a libel so published is in my opinion criminal, and liable to be punished by the law of England as a misdemeanor, as well as the publishing of it." And again, "The composing and writing, with intent and for the purpose above stated, of a libel proved to have been published by the defendant, is in my opinion of itself a misdemeanor, in whatever county the publishing of it took place.' Upon the principle that an act done, and a criminal intention joined to that act, are sufficient to constitute a crime (ante, p. 85), it should seem that writing a libel with intent to defame is a crime. C. S. G. (r) Rex v. Rosenstein, 2 C. & P. 414 (12 E. C. L. R.), Park, J., J. A. This count seems it will not be a publication of a libel if a party takes a copy of it, provided he never publishes it;(w) but a person who appears once to have written a *355] libel, which is afterwards published, will be considered as the maker of it, unless he rebut the presumption of law by showing another to be the author, or prove the act to be innocent in himself.(x) For by Holt, C. J., if a libel appears under a man's handwriting, and no other author is known, he is taken in the mainour,(y) and it turns the proof upon him; and if he cannot produce the composer, it is hard to find that he is not the very man. (2) Where the manuscript of a libel was in the handwriting of the defendant, and a printer had printed five hundred copies from it, three hundred of which had been posted about Birmingham, but there was no evidence to connect the defendant with the printing or the posting, except the handwriting, it was held, that there was evidence to go the jury that it was published by the defendant. (a) So the sale of an obscene print to a person in a private room, he having requested that such print should be shown to him, his object being to prosecute the seller, is a sufficient publication.(b) Where, in an action for libel contained in a pamphlet, a witness proved that the defendant gave her a pamphlet, and that she read parts of it, and that she had lent it to several persons, and it was returned to her, but she could not swear the copy produced was the same pamphlet the defendant gave her, but it was an exact copy, if it was not the same, and she believed it to be the same, it was held that this was sufficient evidence to be left to the jury.(c) The reading of a libel in the presence of another, without previous knowledge of its being a libel, or the laughing at a libel read by another, or the saying that such a libel is made by J. S., whether spoken with or without malice, does not amount to a publication. And it has also been held, that he who repeats part of a libel in merriment, without any malice or purpose of defamation, is not punishable; though this has been doubted. (d) But it seems to have been agreed that if he who had read a libel himself, or has heard it read by another, do afterwards maliciously read or repeat any part of it in the presence of others, or lend or show it to another, he is guilty of an unlawful publication of it. (e) In an action for a libel contained in a caricature print, where the witness stated, that having heard that *356] the defendant had a copy of this print, he went to his house and *requested liberty to see it, and that the defendant thereupon produced it, and pointed out the figure of the plaintiff and the other persons it ridiculed, Lord Ellenborough, C. J., ruled that this was not sufficient evidence of publication to support the action.(f) clearly bad, on the ground that no act was charged; it is precisely similar.to Rex v. Stewart, ante, p. 85. C. S. G. (w) Com. Dig. tit. Libel (B.) 2; Lamb's case, 9 Co. 596. But see Rex v. Beare, 2 Salk. 417; 1 Lord Raym. 414. (2) Bac. Abr. tit. Libel (B.) 1; Lamb's case, 9 Co. 59. The writing a libel may be an innocent act in the clerk who draws the indictment, or in the student who takes notes of it. But in a late case (Maloney v. Bartley, 3 Campb. 210) Wood, B., held, on the trial of an action for a libel, in the shape of an extra-judicial affidavit sworn before a magistrate, that a person who acted as the magistrate's clerk was not bound to answer whether by the defendant's orders he wrote the affidavit, and delivered it to the magistrate, as he might thereby criminate himself. (y) A man was taken with the mainour, mainouvre, when he was taken with the thing stolen in his possession, or, as it was termed in the ancient indictments, captus eum manu opere, and when so taken he might be brought into Court, arraigned, and tried without a grand jury: 2 Hale 148. And some lords of manors had jurisdiction to try such cases, for I have the record for such an indictment for horse stealing, tried in the Court of Leek, Staffordshire, in the 35 Edw. 1. C. S. G. (z) Rex v. Beare, 1 Ld. Raym. 417; 2 Salk. 417. (a) Reg. v. Lovett, 9 C. & P. 462 (38 E. C. L. R.), Littledale, J. (b) Reg. v. Carlisle, 1 Cox C. C. 229. (c) Fryer v. Gathercole, 4 Ex. R. 262. (d) Bac. Abr. tit. Libel (B.) 2. This is doubted in 1 Hawkins P. C. c. 78, s. 14, on the grounds that jests of such a kind are not to be endured, and that the injury to the repu tation of the party grieved is no way lessened by the merriment of him who makes so light of it. (e) Bac. Abr. tit. Libel (B.) 2. (f) Smith v. Wood, 3 Campb. 323. And see Rex v. Paine, 5 Mod. 165, where a qu. is Proof that the libel was contained in a letter directed to the party, and delivered into the party's hands, is sufficient proof of a publication upon an indictment or information.(g) Addressing a letter to a wife, containing a matter reflecting on her husband, is a sufficient publication to support an action. (h) And delivering a libel sealed, in order that it may be opened and published by a third person in a distant county, is a publication.(i) The production of a letter containing a libel with the seal broken, and the postmark on it, is primâ facie evidence of publication.(k) In an information for a libel against the doctrine of the Trinity, the witness for the Crown who produced the libel, swore that it was shown to the defendant, who owned himself the author of that book, errors of the press and some small variations excepted. The counsel for the defendant (bjected that this evidence would not entitle the attorney-general to read the book, because the confession was not absolute, and therefore amounted to a denial that he was the author of that identical book. But Pratt, C. J., allowed it to be read, saying he would put it upon the defendant to show that there were material variances. (1) It seems to be agreed, that not only he who publishes a libel himself, but also he who procures another to do it, is guilty of the publication; and it is held not to be material whether he who disperses a libel knew anything of the contents or effects of it or not, for that nothing would be more easy than to publish the most virulent papers with the greatest security, if the concealing the purport of them from an illiterate publisher would make him safe in dispersing them.(m) Where a reporter to a newspaper proved that he had given a written statement to the editor of the paper, the contents of which had been communicated to him by the defendant for the purpose of such publication, and that the newspaper then produced was exactly the same, with the exception of some slight alterations, not affecting the sense; it was held, that what the reporter published, in consequence of what passed with the defendant, might be considered as published by the defendant; *but that the newspaper could not be read without producing the written account delivered by the reporter to the editor.(n) [*357 The defendant was indicted for causing to be published in a newspaper a libel which told a story of the prosecutor, and added comments on the story, giving it a ludicrous character. The editor of the newspaper stated that the defendant had expressed a wish to him that he would "show up" the prosecutor, and had told him the story. The witness communicated it to a reporter for the paper, and the libel was substantially what was so communicated. Before the publication the defendant made in the margin, whether a person who has a libellous writing in his possession, and reads it to a private friend in his own house, is thereby guilty of publishing it. (g) 1 Hawk. P. C. c. 73, s. 11; Bac. Abr. tit. Libel (B.) 2; Ante, p. 347, n. (a); Selw. N P. 1050, n. (9); Reg. v. Brooke, 7 Cox C. C. 251. And see ante, 347. A further publication is necessary to support an action. Thus it has been held that where the action was brought for a libel contained in a letter transmitted by the defendant to the plaintiff, by means of a third person, it is a question for the jury whether there has been any publication except to the plaintiff himself, and that if there has not, the defendant is entitled to their verdict: Clutterbuck v. Chaffers, 1 Stark. R. 471 (2 E. C. L. R.). But in an action for a libel contained in a letter written by the defendant to the plaintiff, it was holden that proof that the defendant knew that the letters sent to the plaintiff were usually opened by his clerk, was evidence to go to the jury of the defendant's intention that the letter should be read by a third person: Delacroix v. Thevenot, 2 Stark. R. 63 (3 E. C. L. R.). (h) Wenman v. Ash, 13 C. B. 836 (76 E. C. L. R.). (i) Rex v. Burdett, 4 B. & A. 95 (6 E. C. L. R.), post, 366. (k) Warren v. Warren, 4 Tyrw. 850; C. M. & R. 360; Shipley v. Todhunter, 7 C. & P. 680 (32 E. C. L. R.). (1) Rex v. Hall, 1 Str. 416. (m) Bac. Abr. tit. Libel (B.) 2; 1 Hawk. P. C. c. 73, s. 10. (n) Adams v. Kelly, R. & M. N. P. C. 157. 1 State v. Avery, 7 Conn. 266; Swindle v. State, 2 Yerg. 581. Depositing a libel (which was in the form of an anonymous letter) in the post office, where it was mailed and despatched, together with the fact of its production by the plaintiff, on the trial is sufficient evidence of its publication, without the oath of the person to whom it was addressed, who, living out of the State, was out of the jurisdiction of the court: Collan v. Gaylord, 3 Watts 321. See State v. Jeandill, 5 Harring. 475. After it had ap remarked to the witness that the article had not yet appeared. peared, the defendant told the witness that he had seen it, and that he liked it very much. The witness had heard the story before the defendant told it him. The Court of Queen's Bench held, that on this evidence the jury might find that the defendant authorized the publication of this particular libel, notwithstanding the comments added, as there was both a general authority to publish, and an approval of the particular publication.(0) Upon this foundation it was for a long time held, that the buying of a book or paper containing libellous matter, in a bookseller's shop, was sufficient evidence to charge the master with the publication, although it did not appear that he knew of any such book being there, or what the contents thereof were, and though he was not upon the premises, and had been kept away for a long time by illness; and it would not be presumed that it was bought and sold there by a stranger; but the master must, if he suggested anything of this kind in his excuse, prove it.(p) So the proprietor of a newspaper was answerable criminally as well as civilly for the acts of his servants in the publication of a libel, although it could be shown that such publication was without the privity of the proprietor;(q) for 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 ought to be answerable, although it cannot be shown that he was individually concerned *358] in the particular publication ;(r) *and these are acts done in the course of the trade or business carried on by the master. But there were cases in which the presumption arising from the proprietorship of a paper might be rebutted.(s) In an action for a libel, where it appeared upon the evidence that the defendant, a tradesman, was accustomed to employ his daughter to write his bills and letters; that a customer, to whom a bill written by the daughter had been sent by the daughter, sent it back on the ground of the charge being too high, and that the bill was afterwards returned to the customer inclosed in a letter also written by the defendant's daughter, and being a libel upon the plaintiff who had inspected and reduced the bill for the customer; it was holden that this was not sufficient evidence to go to a jury, either of command, authority, adoption, or recognition by the defendant.(t) But now, on the trial of an indictment or information, the defendant may prove that the publication was without his authority, consent, or knowledge.(u) The proceedings against the printers, publishers, and proprietors of newspapers (0) Reg. v. Cooper, 8 Q. B. 533 (55 E. C. L. R.), Lord Denman, C. J., said, "If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanor, and is therefore responsible as a principal." "I have no doubt that a man who employs another generally to write a libel must take his chance of what appears, though something may be added which he did not state." (p) Bac. Abr. tit. Libel (B.) 2; Rex v. Nutt, Fitzgib. 47; 1 Barnard, K. B. 306; 2 Sess. Cas. 33, pl. 38. And see also Rex v. Almon, 5 Burr. 2686. And by Lord Hardwicke, in 2 Atk. 472. "Though printing papers and pamphlets is a trade by which persons get their livelihood, yet they must take care to use it with prudence and caution; for if they print anything that is libellous, it is no excuse to say that the printer had no knowledge of the contents, and was entirely ignorant of its being libellous." (9) Rex v. Walter, 3 Esp. N. P. C. 21. And in Rex v. Dod, 2 Sess. Cas. 33, pl. 38, Lord Raymond, C. J., said it had been ruled that where a master lived out of town, and his trade was carried on by his servant, the master would be chargeable if his servant should publish a libel in his absence. In 1 Hawk. P. C. c. 73, s. 10 (7th edit.), is the following marginal note;—" But if a printer is confined in a prison to which his servants have no access, and they publish a libel without his privity, the publication of it shall not be imputed to him; Woodfall's case, Essay on Libels, p. 18. Sed vide Salmon's case, B. R. Hil. 1777, and Rex v. Almon, 5 Burr. 2687.” (r) Rex v. Gutch, Moo. & M. 433 (22 E. C. L. R.), Lord Tenterden, C. J. (8) Rex v. Gutch, Moo. & M. 433 (22 E. C. L. R.), Lord Tenterden, C. J., and see Rex v. Almon, 5 Burr. 2686. (1) Harding v. Greening, 8 Taunt. 42 (4 E. C. L. R.). And it was also held in this case that the daughter could not be compelled to prove by whose direction the letter was written. The answer would tend to fix herself with the crime of writing it. (u) 6 & 7 Vict. c. 96, s. 7, post, p. 375. |