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third resolution, where it is laid down, "that if one hear false and
horrible rumors, either of the king or of any of the grandees, it is
not lawful for him to relate to others that he heard J. S. say such
false and horrible words, for if it should be lawful, by this means
they may be published generally." It was resolved then, that in
the case of scandalum magnatum it was not lawful to repeat slan-
der, because, if it was, it might circulate generally. Now the same
inconvenience, viz. the general publication of slander, though differ-
ing in degree, would follow from the repetition of slander in either
case. The fourth resolution, however, in terms, perhaps does not
go the length of saying that a defendant may justify the repetition
of slander generally, but only that he may justify under certain
circumstances. Assuming that it imports that a defendant may
justify the repetition of slander generally, by shewing that he named
his original author, I think that it is not law.

The declaration, which contains a technical statement of the
facts necessary to support the action, alleges that the defendant
falsely and maliciously published the slander to the plaintift''s dam-
age. In order to maintain such an action, there must be malice
in the defendant and a damage to the plaintiff, and the words must
be untrue. Where words, falsely and maliciously spoken, as in
this case, are actionable in themselves, the law prima facie presumes
a consequent damage without proof. In other cases actual damage
must be proved. To constitute a good defence, therefore, to such
an action, where the publication of the slander is not intended to be
denied, the defendant must negative the charge of malice (which
in its legal sense denotes a wrongful act done intentionally with-
out just cause or excuse), or shew that the plaintiff is not entitled
to recover damages. For the law will not permit a man to recover
damages in respect of an injury to a character which he either does
not, or ought not, to possess. Now, a defendant, by shewing tiiat
he stated at the time when he published slanderous matter of a
plaintiff, that he heard it from a third person does ^ot negative
the charge of malice, for a man may wrongfully and maliciously
repeat that which another person may have uttered upon a jus-
tifiable occasion. Such a plea does not show that the slander was
published on an occasion, or under circumstances which the law,
on grounds of public policy, allows. Nor does it show that the

^ The opinion of Bavlev, J., is omitted, as is a large part of that of
Parke, J.


plaintiff has not sustained, or is not entitled in a court of law to
recover, damages. As great an injury may accrue from the wrong-
ful repetition, as from the first publication of slander, the first
uttejxr .may have^ been a person insane, or of bad character. The
person who repeats it gives greater weight to the slander. A party
is not tlfeless entitled to recover damages in a court of law for in-
— ttirroiTs ^natter published concerning him, because another person
'i)reTiDii]si5!Lpiiklishe(l it. That shews not that the plaintiff has been
gudty of any misconduct which renders it unfit that he .should re-
cover damages in a court of law, but that he has been 'wronged by
another person as well as the defendant ; and may, consequently, if
the slander was not published by the first utterer on a lawful oc-
casion, have an action for damages against that person as well as
the defendant. It seems to me, therefore, that such a plea is not
an answer to an action for slander, because it does not negative the
charge of malice, nor does it shew that the plaintiff' is not entitled
to recover damages.

Parke, J. i am of opinion that the latter part of the fourth
resolution in Lord Northampton's case cannot be law. In the first
place, the 12 Rep. is not a book of any great authority. It is said
by Mr. Hargraz'e, 11 St. Tr. 30, to be of small authority, being
not only posthumous, but apparently nothing more than a collection
from papers neither digested nor intended for the press by the
writer. And Mr. Serjeant Hill, in his copy refers to fo. 18, 19, as
showing that the 12 Rep. was not fit to be allowed. And Holroyd,
J., in Lcivis v. Walter, 4 B. & A. 614, gives an opinion unfavorable
to its accuracy. It is to be observed also, that the expressions used
in the fourth resolution are equivocal. It is not said in distinct
terms, that if the defendant gives a cause of action against another,
it will in all cases be an answer to an action for slander: and if it
be taken to import a general position, that the repetition of slander
is universally lawful, if the party at the time he repeats it mentions
the name of the author, I think, that upon no princi])le can such
a position be supported, nor can any satisfactory distinction be made
in this respect between oral and written slander. A man's reputation
is entitled to the protection of the law, against those slanders which
it considers to be injurious; and as every one who pul^lishes such a
slander injures that reputation, he is guilty of a wrongful act. and
ui)on ])rinciple is liable in a civil action for any damage arising to an-
other bv reason of that wrongful act. I agree with what is said bv
Lord Chief Justice Best in Dc Crespi(:;ny v. Wellcsley, 5 Bingh. 404;
"because one man does an unlawful act to any person another is not
to be permitted to do a similar act to the same person. Wrong is
not to l)e justified, or even excused, by wrong." A man does a
wrong bv. and is therefore liable to an action for, every repetition
of slander ; and if that be so, is the repeating of the slander less a
wrong because the person who repeats it is not the same who first
uttered it? There may be a great difference in the degree of injury
committed, arising from the character or condition of the party who
utters the slander, or the number of persons in whose presence it


13 Uttered. The person who first uttered the slander may be a
person of no character, or may have been in a state of intoxication
at the time when he uttered it. Slander uttered by such a person,
or under such circumstances, would not receive much attention ;
but if a person of good character, and in a sound state oLag ind, wer e
afterwards to repeaLJthat^slander.Jie would thereby not only cir-
culate it morcwidely, but he would give credit to it by the mere
r£p£Jitian-Qf it, although he stated at the time that he heard it from
another. Every wrong to property is the subject of a civil action.
Upon what principle can it then be said that a wrong done to the
good name and reputation of another is not equally so ? It is clear
that a wrong to property cannot be justified by alleging that another
person has before committed a similar wrong. In this case, too, the
plaintiff alleges, that in consequence of the words spoken by the
defendant, he sustained a special damage, by the loss of a customer,
and non constat, that any such special damage would have arisen
from the words originally spoken if they had not been repeated by
the defendant. It is therefore clear that the plea is bad, and the
judgment of the court must be for the plaintitY.

Judgment for plaintiff.^

^Accord: Kenney v. McLaughlen, 71 Mass. 3 (1855), the defendant did
not express disbelief in the story which he repeated; Burt v. McBain, 29 Mich.
260 (1874), the defendant held liable though he stated that he did not believe
the story he repeated (as to this see Bishop v. Journal Co., 168 Mass. 327
(1897), an action of libel) ; Haines v. Welling, 7 Ohio 253 (1835) ; Fozvler v.
Chichester, 26 Ohio St. 9 (1874) ; Skinner v. Grant, 12 Vt. 456 (1840) ; all
actions of slander.

Probably by analogy to the Statutes De Scandalo Magnatum, 3 Edw. I,
Stat. Weston, 1 cap. 34 to 12 Rich. II, cap. 11, which provided that one "tell-
ing false news" concerning any "magnate" should be imprisoned till he
disclosed "the first author of the tale", it was held in Lord Northamp-
ton's Case, 12 Coke Rep. 132, that the revelation of the original source
of the scandal was a good plea in justification in an action of either libel
or slander. As to the authority of the 12th part of Coke's Reports, see the
criticisms of all the justices, especially Parke and Littledale, in McPherson
v. Daniels. But departing from the analogy of the above statute, it was held
that the name of the author must be given at the time of repetition and not
afterwards, Davis v. Leans, 7 T. R. 17 (1796). Again, the words must have
been so accurately repeated that a good declaration against the author could
be framed upon them and must have been stated to have been spoken ma-
liciously and not under circumstances which would make them privileged,
Maitland v. Goldney. 2 East 426 (1802) ; see Johnson v. 5"/. Louis Despatch
Co., 65 IVIo. 539 (1877). The rule in Lord Northampton's Case was repudi-
ated as to libel in De Crespigny v. Wellesley, 5 Bing. 392 (Feb. 9, 1829), and
as to slander in the principal case decided in the Michaelmas Term of the
same year.

While American cases universally held that one publishing written defa-
mation could not escape liability by giving, even at the time of publication, the
name of the author of the scandal, IDole v. Lyon, 10 Johns. 447 (N. Y. 1813) ;
Johnston v. Lance, 7 Ire. 448 (N. Car. 1847) ; Havnes v. Leland, 29 Maine
233 (1848) ; Schenck v. Schenck. 20 N. J. L. 208 (1843) ; Fohvell v. Provi-
dence Journal, 19 R. I. 551 (1896) ; Sans v. Joerris, 14 Wis. 663 (1861) ; in
many American jurisdictions the rule was otherwise in actions of slander
for spoken repetitions of defamatory matter, apparently owing to the influ-
ence of Starkie on Slander, published in 1813, and so laying down the Eng-
lish law as it was before McPherson v. Daniels; see the cases cited supra,
Binns v. McCorkle, 2 Browne 79 (1811 Pa., Dist. Ct. of Phila.) ; Cummer-


U. (^ ^^


Court of Appeals. 1900. L. R. 1900 2 Q. B. 170.

Application for judgment or a new trial in an action tried be-
fore Grantham, J., with a jury.

A. L. Smith, L. J. The action was for a libel contained in a
book, copies of which had been circulated and sold by the defend-
ants, who were the proprietors of a circulating library with a very
extensive business. The defendants in their defence stated that, if
they sold or lent the book in question, they did so without negli,G:ence,
and in the ordinary course of their business as a large circulating
library ; that they did not know, nor ought they to have known, that
it contained the libel complained of ; that they did not know and had
no ground for supposing that it was likely to contain libellous mat-
ter ; and that under the circumstances so stated they contended that
they did not publish the libel.

What are the special circumstances of this case with regard to
the question whether the defendants took due and reasonable care
in the conduct of their business in this respect? It appears from
the evidence of ]\Ir. Mudie, one of the defendant's directors, that
there was no one in the establishment to exercise any supervision
over the books besides himself and his co-director, and the books
were too numerous for them to examine to see if they contained
libels. He admitted that they had had books on one or two occasions
which contained libels, but they had never before had an action
brought against them for libel, and that they did not employ readers
because it was cheaper for them to run the risk, i. e., of publishing

ford V. McAi-ov, 15 111. 311 (1853) ; Church v. Bridgman, 6 ^lo. 190 (1839) ;
Trabiie v. Ma\s, 3 Dana 138 (Kv. 1835) ; Miller v. Kerr, 2 AlcCord 285 (S.
Car. 1822) ; Kelley v. Dillon, 5 Ind. 426 (1854) ; Tatlow v. Jacquett, 1 Harr.
ZZZ (Del. 1834).

In Johnson v. Lance, 7 Ire. 448 (N. Car. 1847), the repetition is held only
justified if the defendant does not add his own credit or affirm his own be-
lief; in Haviics v. Leland, 29 Maine 233 (1848) ; Church v. Bridgcman, 6 Mo.
190 (1839) : Cummerford v. McAvoy, 15 111. 311 (1853), and Miller v. K.crr.
2McCord 285 (S. Car. 1822), the "quo animo" of the defendant determines
his liability. The "animus" in question is indicated in Haynes v. Leland to
be an intention to injure, the immunity being granted only to one who for
"purposes necessary to society without affirmation of the fact states what he
has heard from another" ; as so put this seems hardly more than a statement
that the repetition of a scandal may, if the occasion be proper, be a "privi-
leged communication"; see Jarnigan v. Fleming, 43 Miss. 710 (1871).

In manv of these jurisdictions the later cases have followed the rule in
the principal case; Hotchkiss v. Oliphant, 2 Hill 510 (N. Y. 1842) ; Smith v.
Stewart, 5 Pa. St. 372 (1847) ; Stepp v. Croft, 18 Pa. Super. Ct. 101 (1901) ;
Nicholson y. Rust, 21 Ky. L. 645 (1899) ; Cates v. Kellogg, 9 Ind. 506 (1857).

In all jurisdictions it is held that spoken or written repetitions of anony-
mous or general rumors are actionable, U'alkin v. Hall. L. R. 3 A. B. 396
(1868) ; Republican Pub. Co. v. Miner, 3 Colo. App. 568 (1893) ; Wheeler v.
Shields, 2 Scammon 348 (1840) ; Hampton v. Wilson. 15 N. Car. 468 (1834^.
even though the defendant says at the time that he does not believe the rumor
which he spreads. Finch v. Finch, 21 S. Car. 342 (1884).


libels and "being sued for those libels, of having actions brought
against them, than to do so. Is it surprising that, after admissions
of this kind, a jury should come to the conclusion that the defendants
did not exercise due care to see that the books circulated by them
did not contain libels, and that they did not get from the jury find-
ings such as those in Emmcns v. Pottle? It seems to me that out
of the mouth of ]Mr. ]\Iudie there was sufficient evidence to justify
the jury in coming to the conclusion that the defendants had failed
to prove their defence, and that it was through negligence on their
part that they did not find out that the book contained a libel on the

RoMER, L. J. The law of libel is in some respects a very hard
one. In the remarks which I am about to make I propose to deal
only with communications which are not privileged. For many
years it has been well settled law that a man who publishes a libel
is liable to an action, although he is really innocent in the matter,
and guilty of no negligence. That rule has been so long established
as to be incapable of being altered or modified, and the courts, in
endeavoring to mitigate the hardship resulting from it in many cases,
have only been able to do so by holding that, under the circumstances
of cases before them, there had been no publication of the libel by
the defendant. The result, in my opinion, has been that the deci-
sions on the subject have not been altogether logical or satisfactory
on principle. The decisions in some of the earlier cases with which
the courts had to deal are easy to understand. Those were cases in
which mere carriers of documents containing libels, who had nothing
to do with and were ignorant of the contents of what they carried,
have been held not to have published libels.^ Then we have the
case of Emmcns v. Pottle, in which vendors of newspapers in the
ordinary course of their business sold a newspaper which contained
a libel. It was clear that selling a document which contained a libel
was prima facie a publication of it, but the Court there held that
there was no publication of the libel under the circumstances which
appeared from the special findings of the jury, those findings being
(i) that the defendants did not know that the newspapers at the

'L. R. 16 p. B. D. 354 (1885). So the carriage and delivery of a sealed,
libelous letter in ignorance of its contents is not a publication, Layton v. H'ar-
ris, 3 Harrington 406 (Del. 1842), but even in such case, one so acting is
prima facte liable and is called upon to show his ignorance of the contents,
Day V. Bream, 2 Moody & Rob. 54 (1837) ; and see Chubb v. Flannagan, 6 C.
&P. 431 (1834).

A telegraph company which receives and transmits a libelous telegram
is not guilty of publishing the same if the message on its face does not indi-
cate to a person of ordinary intelligence that it is defamatory. Nye V. West-
ern Union Tel. Co., 104 Fed. 628 (1900) : Stockham v. Western Union Tel.
Co., 10 Kans. .App. 580 (1901) ; Grislwm v. Western Union Tel. Co., 238 Mo.
480 (1911), aliter when the message is manifestly libelous on its face; Peter-
son V. Western Union Tel. Co., 65 Minn. 18 (1896), 72 Minn. 41 (1898);
Gt. N. W. Tel. Co. v. Arclvimbault, 30 Lower Canada Jur. 221 (1886) ; Whit-
field V. 5". E. R. Co.. Ellis, B. & E. 115 (1858) ; Dominion Tel. Co. v. Silver,
10 Can. S. C. 238 (1882); but see Western Union Tel. Co. v. Cashman, 149
Fed. 367 (C. C. A. 1906).


time they sold tlicm contained libels on the plaintiff; (2) that it was
not by negligence on the defendants' part that they did not know that
there was any libel in the newspapers; and (3) that the defendants
did not know that the newspaper was of such a character that it
was likely to contain libellous matter, nor ought they to have known
so. Lord Eshcr, M. R., in this Court was of opinion that, though
the vendors of the newspapers, when they sold them, were prima
facie publishers of the libel, yet, when the special 'findings of the
jury were looked at, the result was that there was no publication of
the libel by the defendants. Bowen, L. J., put his judgment on the
ground that the vendors of the newspapers in that case were really
only in the same position as an ordinary carrier of a work contain-
ing a libel. That case was followed by other cases, more or less
similar to it, namely, Ridgway v. Smith & Son, Mallon v. W.
H. Smith & Son, and Martin v. Trustees of the British Mu-
seum. The result of the cases is I think that, as regards a per-
son who is not the printer or the first or main publisher of a work
which contains a libel, but has only taken, what I may call, a subor-
dinate part in disseminating it, in considering wdicther there has
been publication of it by him, the particular circumstances under
which he disseminated the work must be considered. If he did it
in the ordinary way of his business, the nature of the business and
the way in which it was conducted must be looked at ; and, if he
succeeds in shewing (i) that he was innocent of any knowledge
of the libel contained in the work disseminated by him, (2) that
there was nothing in the work or the circumstances under which it
came to him or was disseminated by him which ought to have led
him to suppose that it contained a libel, and (3) that, when the work
was disseminated by him, it was not by any negligence on his part
that he did not know that it contained the libel, then, although the
dissemination of the work by him was prima facie publication of
it, he may nevertheless, on proof of the before-mentioned facts, be
held not to have published it. But the onus of proving such facts
lies on him, and the question of publication or non-publication is
in such a case one for the jury. Applying this view of the law to
the present case, it appears to me that the jury looking at all the
circumstances of the case, have in effect found that the defendants
pul)Iished the libel complained of, and therefore the defendants arc
liable, unless that verdict is disturbed. Looking at the special cir-
cumstances of the case which v'ere brought to the attention of the
jury, I cannot say that they could not reasonably find as they did.
The only remaining question is whether the summing-up and direc-
tion of the learned judge were such as would justify us in sending
down the case for a new trial. I find no misdirection in point of
law, and though, with great respect to the learned judge, I do not
think that all he said was correct, or justified by the evidence, tie
jury had the facts fully put before them, and on the whole T do not
think that there was anything in the summing-up which caused th';
jury to come to an erroneous conclusion, or which would justify us


in granting a new trial. For these reasons I think the appUcation
must be dismissed.

AppHcation dismissed.^

(b) Publication of defamatory truths.


Supreme Court of Kansas, 1877. 19 Kansas Reports 417.

Action to recover damages for libel. The defendant set up
for a defense inter alia the truth of the facts stated in the alleged
libelous publication.

The trial court instructed the jury as follows:
''The fact of the language being true, is not alone an answer
to the charge, but can only be shown in mitigation of damages.

"It is not a defense simply to show the truth of the matter pub-
lished, but the party must go further, and show that it was not only
true, but that he acted with good motives and for a justifiable end,
and that he had some purpose in view that was justifiable. If
that be the case, if he acts honestly for good purposes and for jus-
tifiable ends, and what he says is true, then he is to be excused or ac-

The jury found a verdict for the plaintifif for $1,250. Upon
the defendant's motion a new trial was granted on the ground that
the court erred in giving the above instructions to the jury. The
plaintiff excepted, and brought this appeal.

HoRTON, C. J. It was at one time the rule of the common law,
that the truth of the charge, however honorable and praiseworthy the
motives of the publisher, could not be given in evidence in a crim-
inal prosecution. Hence originated the familiar maxim, "The
greater the truth the greater the libel." This doctrine was based
upon the theory, that' where it was honestly believed a particular
person had committed a crime, it was the duty of him who so be-
lieved or so knew, to cause the offender to be prosecuted and
brought to justice, as in a settled state of government a party
grieved ought to complain for an injury to the settled course of

^Accord: Clerk in book-stand selling copy of a newspaper containing a
libel, held bound to show ignorance of its contents, Staub v. J'an Benthiiysen,
36 La. Ann. 467 (1884). In Morrison v. Ritchie, 39 Scottish Law Reports
432 (1902). 4 Session Cases 5th Series, 645 semble. Lord Moncreiff adopting
the view of Romer, J., that this only applies to the vendor or disseminater
of libelous publications and not to the publisher and printer, holding that the
publishers and proprietors of a paper were liable for an advertisement which
by reason of facts unknown to them was defamatory, a note of the birth of
twin sons to a couple married onlv a month before. Every sale is a fresh
publication. Stauh v. Van Benthuvsen, 36 La. Ann. 467 (1884); Bigelow v.
S Prague, 140 Mass. 425 (1886) ; Duke of Brunswick v. Harmer. 14 Q. B. 185
(1849), and this though the sale is after the statute of limitations has run
against the original publication.


law ; and to neplect this duty, and publish the offense to the
world, thereby brinj^ing the party published into disg:race or ridi-
cule, without an opportunity to show by the judgment of a court
that he was innocent, was libelous ; and if the matter charged was
in fact true, (thereby insuring social ostracism,) the injury caused
by the publication was nnich greater than where the publication was
false. A false publication, it was contended, could be explained
and exposed ; a true one was difficult to explain away. As an addi-
tional reason for this rule, it was also held that such publications,
even if true, were provocative of breaches of the peace, and the
greater the truth contained therein the greater the liability of hos-
tile meetings therefrom.

While the rule of the common law, as generally applied, was
so exacting and rigorous to the defense of justification in criminal
prosecutions for libel, a different doctrine was applicable in civil
cases. In the case of King v. Root, 4 Wend. 114, 139, Chancellor
Walworth clearly states this difference as follows : "The difficulty
which existed in England, previous to ]\Ir. Fox's libel act, was, that
in criminal prosecutions the defendant was not permitted to give
the truth in evidence; and yet the jury was required to imply malice.
But in civil cases, the defendant was permitted to give the truth in
evidence as a full justification. Such was declared to be the law by
the judges at the time that bill was under discussion in parliament,

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 118 of 124)