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."

1 R. v Holbrook, 3 Q. B. D. 60. 157. 3 R. v Cooper, 8 Q. B. 533. 4 Exch. 169. 5 Ibid.

2 Adams v Kelly, 1 Ry. & M.

↑ 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

1 Rowcliffe v Edmonds, 7 M. & W. 12.

9

3

4

.8

of bigamy;1 of sending a threatening letter; 2 of receiving stolen goods knowingly; of swindling. To the same effect also are such imputations as that he murdered his first wife by giving her wrong drugs; he had done an act for which defendant could transport him; if he had his deserts he had been hanged before now; he was a returned convict (though the term of punishment was over);8 the Attorney-General had ordered him to be indicted for perjury. The words "I am convinced you are guilty of the death of Daniel Dolly, and rather than you should go without a hangman I will hang you," were held to mean the crime of murder. 10 And to the like effect are the words, that the defendant would not trust the plaintiff with 57. of his property; 11 that the plaintiff fraudulently took his horse out of the race list; 12 that one is sure to pay for it, if one dines and plays at cards with him; 13 that the plaintiff is a libellous journalist. 14

On the other hand the words sometimes do not amount to more than scurrility, and so are not actionable as inputing a definite crime; as that his house is as bad as a bawdy house; 15 that the defendant (a physician) "made up the medicines wrong for the child through jealousy," a child having died, and the words not being spoken of an apothecary in his trade; 16 that the plaintiff was foresworn, for this does not necessarily mean perjury; 17 that the plaintiff was a thief, and his father before him; 18 that "I have a suspicion that you and A robbed my house, and therefore I take you into custody." 19 The word "thief" is often used as the climax of other opprobrious terms without seriously implying a charge of felony, but a jury should be called on to say how this is.20 Twysden, J., said,

Harvey French, 1 4 Janson Stuart, 6 Curtis v 8 Fowler

1 Heming v Power, 10 M. & W. 570. Cr. & M. 11. 3 Alfred v Farlow, 8 Q. B. 854. 1 T. R. 748. 5 Ford Primrose, 5 D. & R. 287. Curtis, 10 Bing. 477. 7 Donne's case, Cro. Eliz. 62. v Dowdney, 2 M. & Rob. 119. 9 Roberts v Camden, 9 East, 93. 10 Peake v Oldham, Cowp. 275. 11 Cheese v Scales, 10 M. & W. 12 Greville Chapman, 5 Q. B. 731. 13 Digby v Thomson, 4 B. & Ad. 821. 14 Wakley v Cooke, 4 Ex. 518. 15 Brayne v Cooper, 5 M. & W. 249; see Huckle v Reynolds, 7 C. B., N. S 114. 16 Edsall v Russell, 5 Scott, N. R. 801. 17 Holt v Scholefield 6 T. R. 691. 18 Thompson v Bernard, 1 Camp. 47. 19 Tozer Mashford, 6 Exch. 539. 20 Penfold v Westcote, 2 N. R. 335.

488.

there was once an action for defendant saying, that he heard A was hanged for stealing a horse, whereas it appeared the words were only spoken in sorrow for the news.1

If the offence imputed is past and punished.—It has been usually said, that the reason why words imputing an indictable offence are actionable is, because, if true, they would render the person libelled liable to indictment, and that somebody hearing them might make a charge on them." But this is a narrow view, and the better reason is, that it is the scandal and turpitude of mind that it implies, and which has the effect of depreciating the present character of the party. And hence it is equally actionable if the words impute an offence that is past and has been punished. All who have been convicted of felony and have suffered the punishment are now put by statute in the same position as if they had received a pardon from the Crown. And, as was well said, to call one a thief after a pardon is "neither necessary nor advanceth nor tends to justice." Therefore in all such cases a slanderer must take care at all events to be within the truth. If he calls one. who has been convicted of felony, and has suffered the punishment, a "convicted felon," this may merely mean. that he was once convicted, and if so, the defendant may, on proving the conviction, justify and escape a verdict in an action for damages against him. But if he call one "a felon editor," this plainly implies, that the latter is a felon still, and at least is or was actually guilty of felony. And hence, in a plea to an action, justifying the truth of such an epithet, the defendant will be bound to prove not merely that the plaintiff was convicted and punished, but that he was actually guilty, and the record of conviction will be no evidence of the fact of guilt. And where a somewhat ambiguous name, such as "felon editor," is used, it is for a jury to say, whether it means merely to impute, that the plaintiff was once convicted, or that he is still

1 Crauford Middleton, 1 Lev. 82. 2 Parke, B., Heming v Power, 10 M. & W. 569. 3 Gainford v Tuke, Cro. Jas. 536; Carpenter Tarrant, Cas. Hardw. 339; Beaver v Hides, 2 Wils. 30; Showell v Haman, Cro. Jas. 153; Boston v Tatham, Cro. Jas. 49 Geo. IV. c. 32, § 3. 5 Cuddington Wilkins,

622.

Hob. 82.

(7 ed.) 1416.

6 Leyman v Latimer, 3 Ex. D. 356; 2 Taylor, Evid.

a felon, and if the latter, the justification must be proved accordingly.1

Imputation of what was once an offence, but not now one. As any criminal offence may be the subject matter of such libellous imputations, some regard is to be had in judging of the reported cases to those acts which were once crimes, but are no longer so, and vice versa. Thus it was once held, that to impute to a spinster that she had had a bastard, when there was a statute called the Act of Fornication, was actionable per se: but no such statute now makes it any offence.2 And the same may be said as to being a witch or sorcerer, for Gawdey, J., said "if he witcheth men so as they die, it is felony; and if he use witchcraft in any other manner, he shall stand upon the pillory; so in every respect it is a slander and a good cause of action." s All those fine distinctions are at an end. And so when one man said to another "The devil appears to thee every night in the likeness of a black horse, and thou conferrest with him," this was clearly actionable in the time of Coke. But now these imputations are no longer actionable, and to call one a witch is only a flourish of humour. The words about bastardy, it is true, may sometimes be actionable still, in connection with the special circumstances of one's profession or duty, as will be afterwards noticed.

Libel imputing impossible crime.-It was once treated as a nice question, whether an action lay for saying that A murdered B, when it was the fact that B was alive, and therefore the offence was impossible. But the court held, that no action lay for such an imputation, as where the defendant had said, "Thou hast murdered my wife," she being alive. And at one time it was held not enough to sue for a libel such as, "Thou hast poisoned Smith," unless it was also alleged, that Smith had died; yet, as Twisden, J.,

1 Ibid. It is not unusual for railway companies to publish handbills, setting forth that a person was convicted for violating some bye-law, and generally overstating the offence, and they usually set up the defence, that the handbill was true, that is, that the party had been convicted of such offence. This has been held a good defence in an action, where the libel was substantially though not literally true.-Alexander v N. E. R. Co., 6 B. & S., 340; Biggs v G. E. R. Co., 18 L. T., N. S., 482; Gwyn v S. E. R. Co., Ibid. 738. 2 Anon. 2 Sid. 21. 3 Rogers v Gravat, Cro. Eliz. 571. 4 Hob. 159, 172. 5 Snag v Gee, 4 Rep. 16.