Act, which, however, relates in terms only to criminal cases of libel. And its operation is sometimes prevented by a demurrer to the declaration. In Reeves v. Templar, 2 Jur. 137, decided in 1838, a few years before Parmiter v. Coupland, in which the same learned baron gave an opinion, the court held on demurrer that the language charged was not libellous, Parke, B., inclining to the contrary. See also Shattuck v. Allen, 4 Gray, 540. If, however, the decision were against the demurrer, the case would go to the jury. Fray v. Fray, supra; Shattuck v. Allen, supra. So, too, there are cases where verdicts for the defendant are set aside upon the ground that the matter was a libel, though the jury found it was not. Parmiter v. Coupland; Hearne v. Stowell, 4 Per. & D. 697.

The English practice, though approved in some American cases, as in Shattuck v. Allen, 4 Gray, 540, has been criticised in others. Snyder v. Andrews, 6 Barb. 43; Matthews v. Beach, 5 Sandf. 256; Green v. Telfair, 20 Barb. 11; Hunt v. Bennett, 19 N. Y. 173; Pittock v. O’Niell, 63 Penn. 253.

Referring to Parmiter v. Coupland, the court in Snyder v. Andrews, supra, say: "We cannot but remark . . . how readily one anomaly in practice leads to another. The judges refuse to instruct the jury whether a publication, clear and unambiguous in its terms, and confessedly a libel, falls within the definition of a libel, but leave it for the jury to decide, who find for the defendants; and then the court set aside the verdict as against law. If the question was properly for the jury, and fairly submitted, their decision should on principle be conclusive. If the court have the power to set aside the verdict when for the defendant, because

the jury have found against law, it seems to us the better remedy is to pursue the old practice of declaring the law before verdict, as in other civil cases, and thus preserve consistency in the system."

It is admitted, however, in Matthews v. Beach, supra, that there are cases in which the meaning and application of a libel ought to be determined by the jury; but this was said to be only where the meaning and application depended upon extrinsic facts, or where the terms of the publication were so ambiguous that they were as capable of being understood in an innocent sense as in one which would make them actionable. But where no extrinsic facts were necessary to be proved, and the words of the publication were not susceptible of being understood in any other than a libellous sense, the question was purely one of law. Dilloway v. Turrill, 26 Wend. 383, was explained on the ground that the words there in question were capable of being understood in an innocent sense. See also the language of Abinger, C. B., in Reeves v. Temple, 2 Jur. 137, 138. And this seems to be the principle upon which the American cases generally have proceeded.

At common law no immunity is conferred upon the proprietors, publishers, or editors, as such, of books, newspapers, or other public prints. They are responsible for libellous matter in their columns, though the publication may have been made without their knowledge or against their orders. Huff v. Bennett, 4 Sandf. 120; Dunn v. Hall, 1 Ind. 344; Andres v. Wells, 7 Johns. 260; Curtis v. Mussey, 6 Gray, 261; Sheckell v. Jackson, 10 Cush. 25; Davison v. Duncan, 7 El. & B. 229.

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In Dunn v. Hall, supra, the libel complained of was published in the absence of the defendant, the proprietor. It was in evidence that just before his departure for a distant place, he informed his foreman that the communication complained of would be presented for publication, and instructed him to have stricken out of it every thing of an objectionable, personal, or abusive character. The communication was, however, published as written, though the foreman objected to having it done; and the defendant was held liable. It is plain," said the court, "from the general context of the decisions in cases of this kind that booksellers and publishers of newspapers are considered as standing in situations of peculiar responsibility, and [so] far from relaxing in their favor the general rule that all persons are bound so to carry on their trade or business as not to injure others, the courts of law have felt the necessity of applying it in their cases with the utmost stringency. . . . The law, however, in holding publishers of books and newspapers responsible for slanderous attacks upon private character, only carries out, with respect to them, the same principles which are applicable to injuries resulting from the transaction of other kinds of business. It is a general rule that a principal is liable for injuries resulting to others from his neglect, or the neglect or incompetency of his agent in the course of his employment, as well as for those resulting from his own positive or intentional acts. So it has been repeatedly held in the case of booksellers that, when a book or pamphlet containing slanderous matter was sold from the shop in the usual course of trade, the proprietor was responsible, and that it was no excuse that he was ignorant of

the contents, or that it was sold by a servant when the master was absent at a distance, and had no knowledge that such a book had ever been in his shop or was sold on his account.”

The case of Rex v. Gutch, Moody & M. 433, was particularly referred to, where one of the defendants desired to show that he was innocent of any share in the criminal publication, as he was living more than a hundred miles away from the place of publication, and had no share in the management of the newspaper. And Lord Tenterden ruled that this was no excuse, and that one who derives a profit from, and who furnishes the means for carrying on, the concern, and entrusts the conduct of the publication to a person whom he selects, ought to be answerable even criminally, though it cannot be shown that he was individually concerned in the particular publication. The court also referred to Andres v. Wells, 7 Johns. 260, and Rex v. Walter, 3 Esp. 21, and then said:

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According to the principles established by these cases, and we have no doubt of their correctness, the circumstances detailed in the present case afford no excuse for the appellants. If Mr. Dunn himself had been at home, and suffered one of his journeymen to insert the libellous article in his paper, under his own eyes, he certainly could not have excused himself by proving that he had given the journeyman private directions not to do so; and if he chose to leave the management of his business in the hands of a foreman, he must be held equally responsible for the neglect or incompetency of the latter in not obeying his instructions, and in suffering such a thing to be done. If publishers could avoid responsibility by telling their foremen not to admit any thing personal, and then absenting

by his agent, if an authority can be proved; and although an authority to commit an unlawful act will not in general be presumed, yet it is otherwise in the case of booksellers and others, where the book or libel is purchased from an agent in the usual course of trade. p. 433. The author refers to Nutt's Case, Fitzg. 47, 2 Geo. 2, where the defendant was tried on an information for publishing a treasonable libel. In that case it appeared in evidence that the defendant kept a pamphlet shop, and that the libellous publication was sold in the shop by the defendant's servant, for the defendant's use and account, in her absence, and that she did not know the contents of it, or of its presence in the shop. And yet the court held the defendant guilty of publishing the libel. The case of Rex v. Almon, 5 Burr. 2689, was also referred to as containing an extensive discussion of the liability of booksellers. The court there expressed the opinion that the sale of a libel in a bookseller's shop was prima facie but not conclusive evidence of a publication. "It does not, indeed, appear," says Mr. Starkie, "what would have been deemed by the court to be sufficient to rebut such prima facie evidence, and to excuse the owner; but it seems to be clear, from the general context of the decisions on this subject, that a bookseller is considered as standing in a situation of peculiar responsibility, and that he is liable criminally as well as civilly for libels sold in his shop in the usual course of business, though without his particular knowledge."

Whether this broad doctrine, at least in its criminal aspect, would be accepted in America may be questioned. And it is worthy of remark that Mr. Townshend cites no American authorities

either as to the supposed criminal or civil liability of booksellers. Even in England it seems that the doctrine has not always been accepted in its full extent. See Chubb v. Flanaghan, 6 Car. & P. 431, where it was held that, if the publication consisted merely in selling a few copies of a periodical in which the libel was contained among the articles, it was a question for the jury whether the defendant knew what he was selling.

(h.) Truth of the Charge.-- The truth of the words complained of, whether they be spoken or written, is always a defence to a civil action. Baum v. Clause, 5 Hill, 199; Foss v. Hildreth, 10 Allen, 76; King v. Root, 4 Wend. 113; J'Anson v. Stuart, 1 T. R. 748; Alcorn v. Hooker, 7 Blackf. 58; Golderman v. Stearns, 7 Gray, 181. This proceeds upon the ground that such evidence shows that the charge is not defamatory. A person has no right to a false character; and his real character suffers no damage from the truth.

In the first case cited it was held, in an action for slander in accusing the plaintiff of having stolen an axe several years before, that the defendant could justify by proving the truth of the charge, though the plaintiff, after conviction of the offence, had been pardoned. It appeared, too, that the plaintiff had so far retrieved his character as to have become an inspector of elections; and the court, therefore, reached their conclusion with regret. "But our laws," it was said, "allow a man to speak the truth, although it be done maliciously." As to the effect of a pardon, Cuddington v. Wilkins, Hob. 67, 81, was distinguished and criticised. See Boston v. Tatham, ante, p. 102.

But under the common-law pleading the truth of the charge must be specially pleaded, and cannot be given in evi

dence under the general issue, either in bar or in mitigation of damages. J'Anson v. Stuart, 1 T. R. 748; Smith v. Smith, 8 Ired. 29; Van Ankin v. Westfall, 14 Johns. 233; Townshend, Slander, p. 327, note 4 (2d ed.).

It is equally well settled that, when the communication is not privileged, belief in the truth of the language used is not a defence to the action. Campbell v. Spottiswoode, 3 Best & S. 769; Darby v. Ouseley, 1 Hurl. & N. 1; King v. Root, 4 Wend. 113; Sans v. Joerris, 14 Wis. 663; Holt v. Parsons, 23 Texas, 9; Moore v. Stevenson, 27 Conn. 14; Smart v. Blanchard, 42 N. H. 137.

And there is no exception in favor of the editors or publishers of newspapers; belief in the truth of scandal published by them is as unavailing as if it had been uttered in any other way. Smart v. Blanchard, 42 N. H. 137; Campbell v. Spottiswoode, supra.

Non-actionable Words. Special Damage. The subject of defamatory words not actionable per se may be dis

missed with the statement that all such words become actionable upon proof of special damage. Townshend, Slander, § 197 (2d ed.), and cases cited. And by special damage is meant damage which is the natural and usual result of the injury; as the loss of consortium of the husband upon charging the wife with unchastity: Lynch v. Knight, 9 H. L. Cas. 577; or, in the case of an unmarried female, the loss of the hospitality of friends: Moore v. Meagher, 1 Taunt. 39; Williams v. Hill, 19 Wend. 305. See Beach v. Ranney, 2 Hill, 309; Roberts v. Roberts, 33 Law J. Q. B. 250. So of the loss of a marriage. Davis v. Gardner, 4 Coke, 16; Matthew v. Crass, Croke Jac. 323.

Mere mental or physical suffering, and expenses of recovery, are not special damage. Allsop v. Allsop, 5 Hurl. & N. 534; Lynch v. Knight, 9 H. L. Cas. 577; Wilson v. Goit, 17 N. Y. 442; Terwilliger v. Wands, ib. 54, overruling Bradt v. Towsley, 13 Wend. 253, and Fuller v. Fenner, 16 Barb. 333.