present at the speaking did or did not hear the language spoken is, in every case, a question of fact. And this is not the less the rule because where the speaking is in the presence of a third person, under such circumstances that he might have heard what was spoken, he may, as a rule of evidence, be assumed to have heard it, until it be shown that he did not hear. The burden is on him who alleges a publication to establish that the third person heard the language spoken. (3) The third person must understand the language (§ 96). When hereafter we speak of an oral publication, or a publication orally, we shall intend a publication with the requisites above mentioned.

108. The requisites of a publication in writing are (1) that the writing, the material written upon, be so exposed as that the subject-matter of the writing is read by at least some one third person (§ 101). No possible form of language in writing can be the basis of an action for libel if read only by the writer and the person whom or whose affairs the language concerns. (2) The subject-matter of the writing must be understood by at least some one third person by whom it is read (§ 96). When hereafter we speak of a publication in writing, we shall intend a publication with the requisites above mentioned.

109. The publication must be prior to the com

1 The word "publish," as applied to speech, implies that the language was spoken in the presence and hearing of others. (Watts v. Greenlee, 2 Dev. 115; Viner's Abr. tit. Actions for Words, L, b, 4; contra, Desmond v. Brown, 33 Iowa, 13. See Goodrich v. Warner, 21 Conn. 432; 1 Hilliard on Torts, 319, note) In slander it is sufficient if the words are said to have been spoken "in the presence" of others (Brown v. Brashier, 2 Penn. [Penrose & Watts], 114), or in the presence and hearing of divers persons, or of certain persons named. (Burbank v. Horn, 39 Maine, 233; and see I1 W. Saund. 242, n. 1; see § 324, post.)

* But delivery to the party libeled is a sufficient publication to support an indictment. (Phillips v. Jansen, 2 Esp. 624.) The moment a man delivers a libel from his hand and ceases to have control over it, there is an end of his locus pœnitentiæ, the injuria is complete. (Holroyd, J., Rex v. Burdett, 4 B. & Ald. 143.)

mencement of the action, and a publication prior to the commencement of the action should be proved. Where a witness called to prove publication was unable to say whether the speaking the words referred to was before or after the date when the action was commenced, it was decided that his testimony was not admissible. But it was held not to be a ground for arresting the judgment that it appeared on the face of the record that the writ issued prior to the alleged publication.3

$110. The place of publication may be within or without the territorial limits of the State or country within which redress is sought. The decisions, so far as they go, all hold, that as a question of jurisdiction, it is immaterial whether the publication was within or without the territorial limits of the State or country within which redress is sought, and this on the ground that the wrong follows the person, and may be redressed by civil action in any court having jurisdiction of the person at the time redress is sought. It is conceded, however, that as regards crimes no redress can be had in one State for a crime enacted within the territorial limits of another State, because a crime is a violation of the law of the State within which it is enacted. This concession seems to imply that for a wrong committed in one State there can be no remedy in another; because the right to remedy is based on a violation of some general prohibition of the law, and not like a remedy on contract for a breach of a private convention between the parties, which of course follows the persons of the parties to the

1 Taylor v. Sturgingger, 2 Rep. Con. Ct. 367; Phila. &c. R. R. v. Quigley, 21 How. U. S. Rep. 202; see note to § 376, post. Where the complaint alleged that the words were spoken in the year 1871, it was held equivalent to an allegation of a publication prior to the commencement of the action. (Sonneborn v. Bernstein, 49 Ala. 168.)

Steward v. Layton, 3 Dowl. Pr. Cas. 430.

Scovel v. Kingsley, 7 Conn. 284.

convention. the construction of the language published, and as a

The effect of the place of publication upon

1 Mr. Stephens, in his "Treatise on Criminal Law," insists that a crime and a tort differ only as regards their consequences.

No court "administers justice in general" (De Bode v. Reg. 13 Ad. & El. N. S. 386), and "the laws of a State have no force proprio vigore beyond its territorial limits." (Hoyt v. Thompson, 5 N. Y. 340.) "If two persons fight in France, and both happening casually to be here [in England], one should bring an action of assault against the other, it might be doubtful whether such an action could be maintained here [in England]. * * * It might perhaps be triable only where both parties at the time were subjects." (Mostyn v. Fabrigas, 20 State Tr. 82; I Smith's Leading Cases.) In Molony v. Dows (8 Abb. Pr. R. 316), it was held at nisi prius, but after elaborate argument and deliberation, that an action for an assault in California could not be maintained in the courts of the State of New York. In McIvor v. McCabe (16 Abb. Pr. R. 319), it was held that the courts of New York had jurisdiction of an action for a personal injury committed in New Jersey by one citizen of that State upon another. As to action for tort committed in a foreign country, see Scott v. Seymour, 6 Law Times Rep. N. S. 607; 1 Hurl. & Colt. 219; 32 Law Jour. Ex. 61; DeWitt v. Buchanan, 54 Barb. 31. "As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must have been fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England. * Secondly, the act must not have been justifiable by the law of the place where it was done." (Phillips v. Eyre, Law Rep. 6 Q. B. 29; and see s. c. Law Rep. 4 Q. B. 225; The M. Moxam, Law Rep. 1 Prob. & Div. 107; Barry v. Fisher, 39 How. Pr. R. 521; Newman v. Goddard, 5 Sup. Ct. Rep. [T. & C.] 299; s. c. 10 Sup. Ct. Rep. [3 Hun], 70; 48 How. Pr. R. 363; Klumph v. Dunn, 66 Penn. St. 141; § 159, post.

*

*

"Of matters arising in a foreign country, pure and unmixed with matters arising in this country, we have no proper original jurisdiction, but of such matters as are merely transitory and follow the person, we acquire a jurisdiction by the help of that fiction to which I have already alluded [the fiction of laying the venue], and we cannot proceed without it." (Eyre, Ch. J., Ilderton v. Ilderton, 2 H. Bl. 145, 162.) (Percival v. Hickey, 18 Johns. 257; Novion v. Hallett,

As to torts committed at sea.

16 Id. 327; Wilson v. McKenzie, 7 Hill, 95.)

To maintain an indictment for libel, the publication must be proved to have been made in the county laid in the indictment, all matters of crime being local. (Holt on Libel, 299, citing Rex v. Johnson, 7 East, 65.) In Trumbull v. Gibbons, 3 City Hall Recorder, 97, the libel was printed in Boston and published in New Jersey, but it was held the courts of New York had jurisdiction; and see Glen v. Hodges, 9 Johns. 76; Smith v. Bull, 17 Wend. 323; Johnson v. Dalton, I Cowen, 548; Gardner v. Thomas, 14 Johns. 134.

If one of our citizens goes into Canada and slanders his neighbor, an action will lie in this State. (Lister v. Wright, 2 Hill, 320; Hall v. Vreeland, 42 Barb. 543; 18 Abb. Pr. R. 182.)

An action for slander will lie, in Indiana, for words spoken in another State actionable at common law. (Offutt v. Earlywine, 4 Blackf. 460; Linville v. Early

question of venue, and as affecting the liability, will hereafter be considered.

§ 111. The person who makes a publication is a publisher. In the text-books, and in reference to slander and libel, the term publisher is employed sometimes to signify the person who actually makes a publication, and sometimes the person who, not being the actual publisher, is liable for the publication-is liable as publisher. We shall always employ the term publisher in the sense of and to signify the person who actually makes the publication.

$112. Republication is a second or subsequent publication of the same language. Repetition is a publication of language of the same import or meaning, as the language of a previous publication. Repetition is a subsequent publication independent and distinct from the first publication. There may be a republication of a writing, the material written upon, there may be a repetition of

wine, 4 Blackf. 469; Stout v. Wood, 1 Id. 71.) And the same in Vermont. (Langdon v. Young, 33 Vt. [4 Shaw], 136.)

In an action of slander brought in Indiana, it will be presumed until the contrary be proved that the words were spoken in that State. (Worth v. Butler, 7 Blackf. 251.)

It is sometimes necessary to show a publication in a particular county. Where the defendant wrote letters in Ireland, and sent them to Middlesex county, England, to be printed and published, and the letters were there published, it was held to be a publication by the defendant in Middlesex county. (Rex v. Johnson, 7 East, 65; and to the like effect, Rex v. Middleton, Str. 77; Keene v. Ruff, 1 Clarke [Iowa], 482.) Where A. wrote a letter and sent it by mail to B., in the county of B., and it was again sent by mail to the county of M., at which county B. received and read it, held to be a publication in the county of M. (Rex v. Watson, I Camp. 215; and see Rex v. Girdwood, East's P. C. 1116, 1120; Case of the Seven Bishops, 4 State Trials, 304; Rex v. Burdett, 4 B. & Ald. 95; 2 Starkie on Slander, 39-43; Commonwealth v. Blanding, 3 Pick. 304.)

In an action for suspending a lamp before the plaintiff's house, intimating that it was a house of ill-fame, the parish in which the declaration states the house to have stood and the tort to have been committed, is to be considered as venue merely, and not as local description, and it is immaterial whether there be any such parish in existence. (Jeffries v. Duncombe, 2 Camp. 3; 11 East, 226. And see Mersey Navigation Company v. Douglas, 2 East, 497.)

the subject-matter of a writing, and there may be a repetition of oral language (speech), but there cannot be a republication of oral language.

§ 113. Speech is but sound, a mere vibration of the atmosphere, cognizable only by the auditory sense. From its nature it necessarily follows that the same sound cannot be repeated; a similar or a like sound may be produced, undistinguishable in every respect from the first, and of the like character and signification, but that will not be the same sound. One who repeats a word previously spoken does not utter the identical word, but a similar or like word: he repeats a like sound of the same signification as the first. The two sounds are separate and distinct, although each has the same meaning. Hence each publication of oral language is a new, distinct, and separate publication.

§ 114. As respects oral publications, the person who actually makes the publication, the publisher, and the person liable as the publisher, must be always one and the same person. Every speaker is the publisher of what he speaks, and is solely liable therefor. That the words spoken have been previously published by another, can neither relieve the subsequent speaker from his liability. for the publication made by him, nor impose any liability on the previous publisher. The act of publication is, as to each publisher, an entirely distinct act. Each person can be liable only for the publication made by him. If one makes an oral publication, and another repeats it, without authority from the first speaker, the first publisher is not liable for the repetition. Besides that, the

1 Where A. uttered a slander of B. the wife of C., and B. repeated the slander to C., in consequence of which C. refused to cohabit with B., held that no action could be maintained against A.; the publication was not A.'s, and A. was not responsible for the consequences of it. (Parkins v. Scott, 6 L. T. N. S. 394; s. c. Perkins v. Scott, 1 Hurl. & Colt. 153; and see Tunnicliffe v. Moss, 3 C. & K. 83; Dicken v.