status of daughter to that of servant was easy enough. The next step was where the infant daughter was not in fact one of the parent's household, but was in the service of another, by her own contract, and not by the contract of the parent: then the action was allowed on these grounds: the daughter, being an infant, could not lawfully contract for her services, therefore the parent could at will rescind the contract, and take the daughter to the parental service; but if the parent did so, the servant would be less efficient, and so a pecuniary injury might or did result. The next and final step thus far is, that where the infant daughter was, by the contract of the parent, the servant of another, still the action can be maintained if the seducer by his fraud had procured the making of the contract, and this on the ground that the fraud vitiated the contract, and leaves the parent an option to reclaim the daughter's services.1 59. By similar processes to those detailed in the last preceding section it has come to pass that the remedy for injuries by language, in theory given only to redress a pecuniary loss, is now applied to and embraces cases in which no pecuniary loss is or can be shown to have occurred. The process by which this result has been arrived at is by adopting the rule of evidence above referred to (§ 56), that certain language is per se, and without other evidence, conclusive proof of pecuniary loss; this, however, is only a rule of evidence, and the rule of right remains intact-that a pecuniary loss must be shown to entitle to a remedy. That the rule is so is demonstrated by the case of words to which the rule of 1 See Lipe v. Eisenlerd, 32 N. Y. 229; White v. Nellis, 31 N. Y. 405 ; Dain v. Wyckoff, 18 N. Y. 45; s. c. 7 N. Y. 191; Mulvehall v. Milward, 11 N. Y. 343; Bartley v. Richtmeyer, 4 N. V. 38; Knight v. Wilcox, 14 N. Y. 413; Harper v. Luffkin, 7 B. & Cr. 387; 1 M. & R. 166. This last case is a noticeable instance of how far courts will in effect depart from the rule of law, while they uphold it in the letter. evidence just referred to does not apply, or to words which are said not to be actionable per se—that is, which are not per se evidence of pecuniary loss. As to these, it has never been doubted that a pecuniary loss must be shown to entitle the plaintiff to a remedy.' 1 Beach v. Ranney, 2 Hill, 309; Herrick v. Lapham, 10 Johns. 291; Hallock v. Miller, 2 Barb. 630; Hersh v. Ringwalt, 3 Yeates, 508. "The real foundation of the action [for libel] is the right to recover pecuniary satisfaction." (Viele v. Gray, 10 Abb. Pr. R. 7.) The special damage must be of a pecuniary nature. (Beach v. Ranney, 2 Hill, 309.) And see ante, note to § 57, and post, note to § 72; Heard on Libel, ch. v, § 54; Kelly v. Partington, 3 Nev. & M. 116; 5 B. & Ad. 645; Keenholts v. Becker, 3 Denio, 346; Foulger v. Newcomb, Law Rep. 2 Ex. 330; Terwilliger v. Wands, 17 N. Y. 62; Wilson v. Goit, 17 N. Y. 444; Roberts v. Roberts, 33 Law Jour. Q. B. 250. CHAPTER V. WRONGFUL ACTS.-ELEMENTS OF A WRONG. Wrongful acts-Liability-Presumptions of law Questions of law and fact-Essential acts in slander and libel-Defamatory-Falsity-Voluntary— Involuntary-Intention-Malice. § 60. Although we are unable to predicate of any act per se whether or not it is a wrong (§ 51), we may, at least as to some acts, determine of them per se whether or not they are wrongful. § 61. An act is wrongful which, as a necessary or as a natural and proximate consequence, occasions hurt of body or pecuniary loss to another than the actor.' When the necessary consequences of the act must be hurt of body or pecuniary loss, then the act is patently wrongful, or wrongful per se. When the act is one the consequences of which are not necessarily hurtful to the person or property of another, but is an act the natural and proximate consequences of which may occasion hurt to the person or property of another, then it is latently wrongful. It is wrongful, provided that as a natural and proximate consequence there ensues personal hurt or pecuniary loss to another. One and the same act may occasion harm to the person and loss of property of another, and either by its necessary or its natural and proximate consequences, or both. It is not always easy to determine what are necessary and natural and proxi 1 Bonomi v. Backhouse, 9 Ho. Lords Cas. 503; Smith v. Thackerah, Law Rep.. I C. P. 566. mate consequences, and to distinguish them from those which are not necessary, not natural, or not proximate (remote) consequences. The rules for making this determination and distinction will be hereafter considered. We have here but to remark that the necessary, natural, and proximate consequences of an act are those of which alone the law takes cognizance, and these it is which. constitute in legal phraseology damage or injury. Any consequence which is neither necessary nor natural and proximate is disregarded in law. § 62. No act but a wrongful act can become a wrong. In the absence of any excuse for it being shown, every wrongful act is prima facie a wrong. It is a wrong provisionally or conditionally; that is to say, it is regarded for all purposes as a wrong, unless and until a legal excuse for the doing it is shown. That which does not exist and that which is not shown to exist are the same. A legal excuse not shown to exist is the same as though no legal excuse existed. The burden of showing the existence of a legal excuse or a defense is always upon the doer of the wrongful act. § 63. The theory is that anything which must be shown to establish a legal excuse or a defense is no part of the essential element of a wrong. In practice, to entitle to a remedy, it is required only to show a wrongful act done, and nothing more appearing, the right to the remedy follows as of course. Reason and expediency alike demand that in this respect the theory should correspond to the practice. § 64. Legal excuses are of two kinds-such as constitute an absolute defense, and such as constitute a conditional defense. A legal excuse of the latter kind is a defense, until some additional fact is shown which takes from it the character of a legal excuse. The legal excuse that the language was spoken by a judge as such (§ 227), or by a witness as such (§ 223), is of the first or absolute kind. The legal excuse that the language was published to one who was interested to know it, and with a belief that it was true, is a legal excuse of the second or qualified kind (§ 241). The excuse exists only provided it does not appear that the language was published not believing it to be true, or published to one not interested to know it. § 65. There is this distinction between legal excuse and defense. Legal excuse is such a state of facts as prevents a wrongful act amounting to a wrong. Defense includes legal excuse and more, namely, those cases in which the wrong is admitted to have been done, but where, from some circumstance, such as the statute of limitations, or satisfaction, or in the action for libel the truth of the language published, the plaintiff has forfeited or waived his right of action. 66. The question what constitutes a wrong or when has a wrong been committed, and the question who is liable therefor, are essentially distinct questions, and to be determined by different rules. § 67. As regards liability, no one is responsible for involuntary acts,' nor for any other than wrongful A man must will an act before he can be responsible for it. (Wood's Civil Law, 18.) No action lies for an inevitable accident. (Harvey v. Dunlop, Hill & Denio Sup. 193; see Center v. Finney, 17 Barb. 94; affi'd 2 Selden's Notes, 44.) No man is liable civilly or criminally for a purely accidental mischief, that is to say, for the consequences of an act not his own which he was unable to foresee, or, foreseeing, was unable to prevent. (2 Austin's Lect. Juris. 165, 167.) If there had been any necessity for the defendant's conduct, it would have been matter of defense. (Ld. Ellenborough, Rex v. Vantandillo, 4 M. & S. 73; Reg. v. Hicklin, Law Rep. 3 Q. B. 376.) The act must be intentionally done, the meaning of which is, that the defendant should know what he published, for, as in the case put by Starkie, if a servant should deliver a sealed letter containing the defamatory matter, without knowing its contents, he would not, though the actual instrument of publication, be liable to an action. (Daly, F. J., Viele v. Gray, 10 Abb. Pr. R. 7; 18 How. Pr. R. 550.) If published inadvertently, it would not be a libel. (Rex v. Abingdon, I Esp. Cas. 228.) Being the sale of a few copies of a periodical paper containing |