stock issued, anything which merely affects the value of the stock is private.' But private persons cannot be the subject of ill-natured remarks in the public press, where they have done nothing to expose themselves to public censure.2 The trustee of a mining corporation is not such a public officer as to render the incumbent amenable to criticism through newspapers, as in case of persons filling public offices of trust and confidence, in the proper administration of which the community has an interest. Nor is a city physician, appointed by the city council, and not elected by the people.1 ILLUSTRATION. The plaintiff held himself out as teacher of stenography, etc., and sought to attract pupils to his place by signs and advertisements. Held, that he thus assumed a quasi public character, and that a newspaper report of an interview with him concerning his business must be shown to be malicious in fact before it would be libelous: Press Co. v. Stewart, 119 Pa. St. 584. § 1236. Publication. - Defamatory words are not actionable until they are published, and by publication is meant the putting of the slander before one or more persons other than the plaintiff. To slander a person to his face is not actionable, unless some one overhears it; nor is it to send an inclosed letter containing defamatory matter to the plaintiff;5 nor is it a publication to speak thority, complaining on reasonable grounds." 'Crane v. Waters, U. S. C. C. Mass., 1882; and see Hahnemannian L. Ins. Co. v. Beebe, 48 Ill. 87; 95 Am. Dec. 519. 2 See ante, § 1227; O'Connor v. Sill, 60 Mich. 175. 3 Wilson v. Fitch, 41 Cal. 363. Foster v. Scripps, 39 Mich. 376; 33 Am. Rep. 403, the court saying: "Where a person occupies an office like that of a city or district physician, not elected by the public, but appointed by the council, we have found no authority, and we think there is no reason, for holding any libel privileged except a bona fide representation made without malice to the proper au 5 Cooley on Torts, 193; Lyle v. Clason, 1 Caines, 581; Spaits v. Poundstone, 87 Ind. 522; 44 Am. Rep. 773; McIntosh v. Matherly, 9 B. Mon. 119; Broderick v. James, 3 Daly, 481; Desmond v. Brown, 33 Iowa, 13. Aliter where one is prosecuted criminally, and not sued. In State v. Avery, 7 Conn. 266, 18 Am. Dec. 104, a proprietor of a newspaper cannot be found to have "published" a libel, unless it is proved to have been read as well as printed and sold: Prescott v. Tousey, 50 N. Y. Sup. Ct. 12. them to the person defamed, even though the place is a public one, if no other person hears them. But to constitute publication, the libel need not be made known to the public generally. It is enough if it be made known to a single third person. It is no publication of a slander to speak it in a foreign language which no one present understands. But this rule does not apply to a libel printed in a foreign language. The moral or intellectual character of the person in whose hearing words are spoken is immaterial.5 3 And the publication must be made by the defendant. If the party to whom the slanderous words are spoken or the written libel is sent, being the one defamed, gives it to the world, the defendant is not responsible. But the words are actionable, although spoken, when no one else is present, to one who knows them to be false, and who does not repeat them until after action brought, and an injunction of secrecy by the defendant to the witness is no defense.8 To have a libelous writing in one's possession is no publication; neither is it to post up a libelous placard, if it is taken down before any one sees it.10 A defamatory writing is no libel so long as it remains in the possession of the composer, and is seen by no one else; but if he keeps such a paper in his possession, he must, at his peril, see that it does not fall into the hands of others; if it does, the publication is in law attributable to him as the party who originated the wrong, and was the means of its becoming injurious." It is a publication to deliver it to a person 1 Sheffill v. Van Deusen, 13 Gray, 304; 74 Am. Dec. 632. 2 Adams v. Lawson, 17 Gratt. 250; 94 Am. Dec. 455. Krene v. Ruff, 7 Iowa, 482. Palmer v. Harris, 60 Pa. St. 156; 100 Am. Dec. 557; Mielenz v. Quasdorf, 68 Iowa, 726; K. v. H., 20 Wis. 239; 91 Am. Dec. 397. Sheffill v. Van Deusen, 15 Gray, 485; 77 Am. Dec. 377. 6 Fonville v. McNease, Dud. (S. C.) 303; 31 Am. Dec. 556. Marble v. Chapin, 132 Mass. 225. 8 McGowan v. Manifee, 7 T. B. Mon. 314; 18 Am. Dec. 178. Odgers on Libel and Slander, 152. 10 Odgers on Libel and Slander, 152. 11 Cooley on Torts, 281. But Mr. Odgers says (Slander and Libel, 152): "If I compose or copy a libel, and keep the manuscript in my study, in who would necessarily read it, even though it is not proved that in the particular case he did read it, as delivering a newspaper to a revenue commissioner to stamp it,' or a manuscript to a printer, or to send a libel by telegraph,3 or by postal card. Where, however, though a third person may have had an opportunity of reading the libel, if he actually did not, it is no publication. It is no publication by one who picks up and delivers a sealed letter, the contents of which are unknown to him." So where a person wrote a letter and gave it to another to deliver, folded, but not sealed, and the messenger delivered it to the plaintiff without reading it, it was held no publication. A communication of a slander on a man to his wife, or to any member of his family," is a publication. But a communication by a husband to his wife is not.1 It is a publication to give it to the agent of the plaintiff." As soon as the manuscript of a libel has passed out of the defendant's possession and control, it is published as to him. Thus a letter is published as soon as posted, and in the place where it is posted, if it is ever opened tending to show it to no one, and it is stolen by a burglar, and published by him, it is submitted that there is no publication by me, either in civil or criminal proceedings. But it would be a publication by me if through any default of mine it got abroad, whether through my negligence or folly "; citing Weir v. Hoss, 6 Ala. 811, which seems to hold that a publication without the author's consent is no publication as to him. 1 R. v. Amphlit, 4 Barn. & C. 35. 2 Baldwin v. Elphinston, 2 W. Black. 1037; Trumbull v. Gibbons, 3 N. Y. City Hall Rec. 97. Whitfield v. R. R. Co., El. B. & E. 115; Williamson v. Freer, L. R. 9 Com. P. 393. Robinson v. Jones, 4 L. R. Ir. 391. Odgers on Libel and Slander, 153. Fonville v. McNease, Dud. (S. C.) 303; 31 Am. Dec. 556. 7 Clutterbuck v. Chaffers, 1 Stark. 471; Day v. Bream, 3 Moody & R. 54. never 8 Wenman v. Ash, 13 Com. B. 836. 9 Miller v. Johnson, 70 Ill. 59. 10 Sesler v. Montgomery, 78 Cal. 486. "The question seems to have arisen in England, probably because in every such case there has been an immediate and undoubted publication of the same slander, or an exaggerated version thereof, by the wife to some third person, for which the husband would be equally answerable in damages, and which would be easier to prove. In America there is a dictum that the delivery of a libel by the author to his wife in confidence is privileged: Trumbull v. Gibbons, 3 City Hall Rec. 97"; Odgers on Libel and Slander, 153; State v. Shoemaker, 101 N. C. 670; and see Wennhak v. Morgan L. R., 20 Q. B. Div. 635. 11 Brunswick v. Harmer, 14 Q. B. 185. anywhere by any third person.1 The publication of a libel is sufficiently proved where it appears that a letter in the handwriting of the defendant, containing the libel, was found in the house of a neighbor of the person libeled, and by such neighbor and a third person opened and read. A letter stating that the writer had heard of a slanderous report is admissible in evidence to prove the circulation of the report, and may be read for that purpose, the handwriting of the person being proved; but it is not admissible to prove that the defendant had propagated the report. Evidence that a newspaper came from the defendant's office, and was one copy of an edition of the same date, is proof of publication. So distributing newspapers containing libelous matter, and receiving money for them by an agent, is sufficient evidence of publication.5 Where the only publication is one brought about by the plaintiff's own act, it has been held that this is not sufficient to give the right of action, on the principle of the maxim, Volenti non fit injuria. Damages cannot be recovered for the repetition of slanderous words spoken by another, whether true or false, when such words were repeated by the defendant at the request of the plaintiff." dard, 38 Vt. 25; 88 Am. Dec. 633; Heller v. Howard, 11 Ill. App. 554. Contra, Duke of Brunswick v. Harmner, 14 Q. B. 185; which holds that where the words have been previously uttered, suit may be brought on a repetition sought by plaintiff. And in Griffiths v. Lewis, 14 Jur. Q. B. 197, Lord Denman, C. J., said: "Injurious words having been uttered by the defendant respecting the plaintiff, the plaintiff was bound to make inquiry on the subject. When she did so, instead of any satisfaction from the defendant, she gets only a repetition of the slander. The real question comes to this, Does the utterance of slander once give the privilege to the slanderer to utter it again whenever he is asked for an explanation? It is the constant The allegations of the answer that the matters contained in the publication are true are not admissible on plaintiff's behalf as a republication.' The testimony given by a witness on a trial, in which he acknowledged the uttering of certain words alleged to be slanderous, cannot be proved as an admission in a subsequent action for slander brought against him. Where a letter containing a libel is sent sealed, and the writer subsequently states in the presence of witnesses that he had got a certain person to write the letter for him; that he had signed his own name to it and kept a copy; and also states what the contents of the letter were, but without producing it or a copy of it, — this is a sufficient publication.3 Proof that the words were spoken to plaintiff or in his presence need not be made; it suffices to show that they were spoken to a different person.* ILLUSTRATIONS.-A, by mistake, directed and posted a libel on B to B's employer, instead of to B. Held, a publication: Fox v. Broderick, 14 Ir. C. L. Rep. 453. A wrote a libelous letter to B, but showed it to C before posting it. Held, a publication: Snyder v. Andrews, 6 Barb. 43; McCombs v. Tuttle, 5 Blackf. 431. The defendant knew that the plaintiff's letters were always opened by his clerk in the morning, and sent a libelous letter addressed to the plaintiff, which was opened and read by the plaintiff's clerk lawfully and in the usual course of business. Held, a publication by the defendant to the plaintiff's clerk: Delacroix v. Thevenot, 2 Stark. 63. An association ap course, when a person hears that he has been calumniated, to go with a witness to the party who he is informed has uttered the injurious words, and say, 'Do you mean, in the presence of witnesses, to persist in the charge you have made?' And it is never wise to bring an action for slander unless some such course has been taken. But it never has been supposed that the persisting in and repeating the calumny, in answer to such a question, which is an aggravation of the slander, can be a privileged communication; and in none of the cases cited has it ever been so decided.' The testimony of ministers who in their ministerial 4 Ware v. Cartledge, 24 Ala. 622; 60 Am. Dec. 489. |