Where the libel is contained in a newspaper, the sale of each copy of the newspaper containing the libel is a publication thereof (y), rendering the distributor as well as his principal responsible for the libel. So, too, is the delivery of a libellous manuscript to the printer (2), and it would seem even the delivery of the newspaper to a government official as required by law (a). But in all these cases it is open to the defendant to show that he did not in fact publish the libel, which he can do by proving that he "did not know that the paper contained or was likely to contain a libel," and that he "ought not to have known it, having used reasonable care" (b). Thus he is not liable where he cannot read (c), or where he has carried the libel in a sealed letter (d), or in a parcel containing handbills (e), or in a newspaper which he does not know contains libellous matter, and which he had no reason to suppose was likely

(y) Duke of Brunswick v. Harmer (1849), 19 L. J. Q. B. 20; 14 Q. B. 185.

(z) Baldwin v. Elphinston (1775), 2 W. Bl. 1037; Watts v. Fraser and another (1835), 6 L. J. K. B. 226; 7 Ad. & E. 223; 7 C. & P. 369; 1 Jur. 671.

(a) Rex v. Amphlit (1825), 4 B. & C. 35 ; 6 D. & R. 125.

(b) Per Lord Esher, M. R., in Emmens v. Pottle and Son (1885), 16 Q. B. D. p. 357. See also John Lamb's case (1610), 9 Rep. fol. 60.

(c) Per Lord Kenyon, C. J., in Rex v. Holt (1792), 5 T. R. at p. 444.

(d) Per Lord Kenyon, C. J., in Rex v. Topham (1791), 4 T. R. at pp. 127, 128.

(e) Day v. Bream (1837), 2 Moo. & R. 55.

to contain such matter (f). "A newspaper is not like a fire; a man may carry it about without being bound to suppose that it is likely to do an injury. It seems to me that the defendants are no more liable than any other innocent carrier of an article which he has no reason to suppose likely to be dangerous" (g).

There is also a prima facie case of publication against the defendant where the manuscript from which the libel was printed is shown to be in his handwriting, there being no necessity to prove expressly that he ordered or authorized the printing (h).

It has been held that if A., intending to send a letter to B., which if so sent would be privileged, by mistake sends it to C., A. is not liable (i). It is submitted that this is incorrect on principle, and that A. should be held liable as having published the matter to C., in respect of whom there is no privilege.

The same act may amount to a publication both of libel and slander, e.g., if anyone knowing

(f) Emmens v. Pottle (1885), 16 Q. B. D. 354.

(g) Per Bowen, L. J., in Emmens v. Pottle (1885), 16 Q. B. D. at p. 358.

(h) Per Lord Erskine in Burdett v. Abbot (1811), 5 Dow, H. L. at p. 201; Adams v. Kelly (1824), Ry. & M. 157; Tarpley v. Blabey (1836), 2 Bing. N. C. 437; 7 C. & P. 395; Bond v. Douglas (1836), 7 C. & P. 626.

(i) Tompson v. Dashwood (1883), 11 Q. B. D. 43. It seems at least doubtful whether this case is consistent with Pullman v. Hill, pp. 14, 15, supra.

F.

C

that a document contains a libel upon another reads it to a third person, he publishes a libel and also a slander (r) to such third person.

It is for the jury to find whether the facts on which it is endeavoured to prove publication are true, but for the judge to decide whether the facts as proved constitute a publication.

ART. 4.-Action for libel maintainable without proof of special damage.

For every libel an action (s) for damages will lie even though no special damage can be proved.

NOTE. In this respect there is a remarkable difference between libel and slander. In the case of libel, i.e., where the defamatory statement is in writing, printing, or other permanent form, the law assumes that of necessity the person defamed has suffered damage, and therefore he is entitled to maintain an action, even though he does not and cannot prove that he has suffered any definite temporal loss, or, as it is technically called, "special damage" (†).

(r) John Lamb's case (1610), 9 Rep. fol. 60; Forrester v. Tyrrell (1893), 9 Times L. R. 257 (C. A.).

(s) No action for libel can be brought in the County Court, except by consent (51 & 52 Vict. c. 43, ss. 56, 64).

(t) Per cur. in Ratcliffe v. Evans, (1892) 2 Q. B. at p. 529.

On the other hand; in the case of slander, i. e., where the defamatory statement is merely spoken, or by gesture, the plaintiff cannot succeed without proof of special damage, except in the four cases which are dealt with in the next Article.

ART. 5. No action for slander without proof of special damage, except in four cases.

No action for slander will lie without proof of special damage, except (1) where the words charge the plaintiff with having committed a criminal offence (u); or (2) where they impute that he has an infectious or contagious disease (x); or (3) where they are spoken of him in relation to his office, profession, or trade (y); or (4) where the plaintiff is a woman or girl and the words impute adultery or unchastity to her (2).

NOTE 1.-Except in the four cases mentioned above, no action for slander will lie, unless the plaintiff can prove that in consequence of the words complained of he has suffered some special

(u) Webb v. Beavan (1883), 11 Q. B. D. 609; 52 L. J. Q. B. 544; 49 L. T. 201; 47 J. P. 488.

(x) Villers v. Monsley (1769), 2 Wils. 403.

(y) Phillips v. Jansen (1798), 2 Esp. 624.

(≈) Slander of Women Act, 1891 (54 & 55 Vict. c. 51), s. 1.

damage. Thus, in the absence of such proof, it is not actionable to call anyone a cheat(a), a rogue(b), a swindler (c), or a villain (d), nor, unless it touches him in his office, profession, or trade (as to which see Note 4, p. 28, infra), is it actionable to verbally accuse a man of immoral or profligate conduct (e).

In order to maintain an action of slander where the words are not actionable per se, the plaintiff must therefore prove the loss of some definite temporal benefit; e.g., the loss of a client (f) or customer (g), or the loss (h) or refusal (i) of some appointment or employment (j), or, unless indeed it be merely a device to maintain the action (k), the loss of a gift whether pecuniary (7) or otherwise (m),

(a) Per Pollock, C. B., in Barnett v. Allen (1858), 27 L. J. Ex. at p. 414.

(b) Stanhope v. Blith (1585), 4 Rep 15; Hopwood v. Thorn (1850), 8 C. B. 293; 19 L. J. C. P. 94; 14 Jur. 87.

(c) Savile v. Jardine (1795), 2 H. Bl. 531; Ward v. Weeks (1830), 7 Bing. 211; 4 M. & P. 796.

(d) Stanhope v. Blith, supra.

(e) Lumby v. Allday (1831), 1 Cr. & J. 301; Ayre v. Craven (1834), 2 A. & E. 2.

(f) King v. Watts (1838), 8 C. & P. 614; Brown v. Smith (1853), 22 L. J. C. P. 151.

(g) Storey v. Challands (1837), 8 C. & P. 234.

(h) Payne v. Beuwmorris (1669), 1 Lev. 248.

(i) Sterry v. Foreman (1827), 2 C. & P. 592.

(j) Martin v. Strong (1836), 5 A. & E. 535; Rumsey v. Webb et ux. (1842), 11 L. J. C. P. 129.

(k) Coward v. Wellington (1836), 7 C. & P. 531.

(1) Corcoran v. Corcoran (1857), 7 Ir. L. R. N. S. 272. (m) Hartley v. Herring (1799), 8 T. R. 130.