wife are considered as separate individuals. If husband and wife utter the like words, either simultaneously or separately, there are two publications-a separate publication by each ($ 304). For the words uttered by the husband he must be sued alone; for the words uttered by the wife, the husband and wife must be sued together.' Two or more may agree together (conspire) in composing a set of words which one or both shall speak; that is to say, two or more may conspire to injure another by an oral publication of language; for this the remedy would be, not an action for slander, but an action for a conspiracy to defame."

$119. Where the publication is the joint act of two or more, they may be sued jointly or separately; if sued separately, the plaintiff can have but one satisfaction, but may elect de melioribus damnis. Thus, where A. brought an action of libel against B., who pleaded puis darrein continuance, that he was a partner with C. in the printing and publishing the newspaper which contained the libel, and that A. brought a previous action against C. for the same identical publication, and recovered a judgment which had been satisfied, &c. On demurrer this was held a good plea, and that the plaintiff could have but one satisfaction, but might elect de melioribus damnis.3

§ 120. A publication, the act of publishing, must be upon some occasion (§ 50), and must be voluntary or

Tait v. Culbertson, 57 Barb. 9. There must be separate actions for words spoken by a husband and a wife. (Penters v. England, 1 McCord, 14; Malone v. Stillwell, 15 Abb. Pr. R. 425; Swithen v. Vincent, 2 Wils. 227.) Husband and wife may be jointly sued for a libel published by them jointly. (Catterall v. Kenyon, 3 Q. B. 310; Keyworth v. Hill, 3 B. & Ald. 685.) See Parties, §§ 301, 304, post.

2 See 2 Hilliard on Torts, 444, 558, note; Hood v. Palm, 8 Barr (Pa. St.), 237; Haldeman v. Martin, 10 Id. 369; Stiles v. White, 52 Mass. (11 Met.) 356.

3 Thomas v. Rumsay, 6 Johns. 26; Brown v. Hirley, 5 Up. Can. Q. B. R. (O. S.) 734; Webb v. Cecil, 9 B. Mon. 198. See post, § 251.

involuntary (§ 67). Liability as publisher depends upon the occasion and upon whether, as to the person sought to be charged, the publication was voluntary or involuntary, and generally upon the principles to which reference has heretofore been made (S$ 50, 67, 68, 70). In the text-books and reports much is said on the subject of privileged publications, employing the term publication to mean as well the act of publishing as the matter published; and these privileged publications are divided into such as are absolutely privileged and such as are conditionally privileged. Reserving the subject of privileged publication to be hereafter considered at length, we limit ourselves here to stating that all involuntary and some voluntary publications are privileged.

$121. Where a closed paper is given to an employee to deliver to another, it becomes the duty of the employee to deliver such paper as directed, without inspecting its contents, and in making the delivery without ascertaining the contents of the paper, he performs a duty; and, as the performance of a duty is an involuntary act ($39), and cannot amount to a wrong (§ 42), if it happen that the paper contained defamatory matter, the employee incurs no liability. The act of publishing defamatory matter was as to him involuntary. He did not know, and was not under any obligation to know, the contents of the paper carried and delivered by him. He could have known the contents of the paper only by a violation of his duty; having simply performed his duty, no liability attached to him.' But if, in such a

In Nutt's Case, as reported Barnard. 306, it is said: If a servant carries a libel for his master, he certainly is liable for what he does, though he cannot so much as read or write. Mr. Starkie (2 Starkie on Slander, 29, note f), referring to this dictum, says: "It is impossible not to dissent from this doctrine, so expressed, without the qualification added that the servant had some reason to know that he was discharging an illegal mission." That the defendant could not read, and therefore was ignorant of the contents of the paper published may be urged in mitigation. (Rex

case, the employee does in fact know the contents of the paper, he cannot excuse himself by saying he carried and delivered it as agent or employee (§ 67). Ordinarily it would be said that the non-liability of the employee, in the instance above put, arose from the absence of malice on his part in making the publication; but this can only mean that he had a legal excuse for performing the act, namely, that the act, so far as it was wrongful, was as to him involuntary. This is the true ground for the decisions in which the non-liability is said to be the absence of malice. Decisions that cannot be explained on this ground were either erroneously decided or decided upon

v. Holt, 5 T. R. 444.) To constitute a publication, such as will render the publisher liable to an action, the publication must be knowingly. (Layton v. Harris, 3 Harring. 406.) Intentional. (Viele v. Gray, 10 Abb. Pr. R. 12; 18 How. Pr. R. 567.) One is not liable for a publication inadvertently. (Rex v. Abingdon, 1 Esp. Cas. 228.) As by delivering by mistake a paper out of his study. (5 Mod. 167; Holt on Libel, 290.) Or if it be stolen from him. (See Weir v. Hoss, 6 Ala. 881; Barrow v. Lewellin, Hob. 62; 1 Hill. Torts, 321, note 7; § 116, ante.) Reading a libel in the presence of another without knowing it before to be a libel, with or without malice, does not amount to a publication. (4 Bac. Abr. 458; Holt on Libel, 290.) But if he who has either read a libel himself, or has heard it read by another, do afterwards maliciously read or repeat any part of it in the presence of others, or lend or show it to another, he is guilty of an unlawful publication of it. (Hawk. P. C. ch. 73, § 10; Holt on Libel, 291.) Reading a libel by command of his father or master is not an actionable publication-so said in Comyn's Dig. tit. Libel, B, II, and cited George on Libel, 162.

If a man delivers by mistake a libelous paper out of his study, he would probably be held liable civilly, for the publication was by his carelessness. (Mayne v. Fletcher, 4 M. & Ry. 312; 2 Stark. Sland. 30, note z.)

"The mere act of communicating that which is slanderous will not subject a party even to civil liability without some degree of culpability on his part. If, for instance, a servant or agent were in the ordinary course of his duty to deliver a sealed libel, without any knowledge of its contents, though he were thus the actual instrument of publication, yet if he acted but as the agent of another, without any reason for suspecting that any wrong was intended, he would not subject himself to any civil, still less to any criminal responsibility." (1 Starkie on Libel, 226 [227].) In an action against the defendant for publishing libels, it appearing that five packets, addressed to individuals and inclosed in one addressed to him, had been received at the coach-office where he was porter, and he delivered them; held that if the jury found that he did so in the course of his business, and in ignorance of the contents, he was not liable; but being prima facie liable, it was for him to show such ignorance. (Day v. Bream, 2 M. & Rob. 54.)

erroneous grounds. The true ground for the decision in Smith v. Ashley' was, the absence of "conscious violation" of law, and "culpable knowledge." The work of fiction published had nothing on its face to indicate that it reflected upon any individual or his affairs; the publisher did not know, and had no means of knowing, that it reflected on any individual or his affairs; in so far, therefore, as it did reflect upon any individual, it was as to the publisher an involuntary act, equally as much as the unconscious delivery by an employee of defamatory matter by the direction of his employer. This subject will be further discussed hereafter, when we come to treat of defenses.

122. Upon the principles of law condensed in the expression respondeat superior, one is responsible not only for what he does or omits to do in his own proper person, but also for all that his agents may do or omit to do in and about his business. Every one is charged with the duty to exercise such a vigilance in the selection of agents, animate and inanimate, as are competent and adequate to the performance of the business they may be required to transact, and the ends they may be designed to accomplish; he must exercise such a control over them that in the transaction of his business they

1

An action for a libel cannot be maintained against the publisher of a newspaper, if he has no knowledge at the time of publication that the article complained of is libelous. Hence, if he publishes an article which he believes to be a fictitious narrative, or mere fancy sketch, and does not know that it is applicable to any one, he cannot be held responsible, although it was intended by the writer to be libelous, and to apply to the party who brings the action. In such case, the writer only is answerable to the party libeled. (Smith v. Ashley, 11 Met. 367.) In Wilson v. Stephenson (2 Price, 282), the jury found the words charging plaintiff with being a murderer were spoken by defendant, but not maliciously, on which a verdict was rendered for the defendant. The court refused a new trial.

9 See note to § 87, ante. "He who shall be convicted in the said case either ought to be a contriver of the libel, or a procurer of the contriving of it, or a malicious publisher of it, knowing it to be a libel." (9 Co. 59; Mo. 813; George on Libel, 107.)

neither do nor omit to do any act amounting to a wrong. He cannot escape this liability by omitting to exercise this vigilance; for such omission is itself negligence. It is upon this principle, and not upon any presumption of malice, that an employer or principal is held responsible for the act of his servant or agent.'

$123. The proprietor of a newspaper is responsible for all that appears in its columns, although the publication

1 Legal criminality is merely legal responsibility, and may exist where there is no moral criminality whatever. (Holt on Libel, 53.) Malice, in legal understanding, implies no more than willfulness (Id. 55; note I, p. 130, ante; Rounds v. Delaware R. R. Co. 10 Sup. Ct. Rep. [3 Hun], 329); and between negligence and willfulness there is no difference but of degree. (Bramwell, B., Mangan v. Atterton, Law Rep. 1 Ex. 240.) Negligence embraces acts of commission as well as of omission, and diligence implies action as well as forbearance to act. (Grant v. Mosely, 29 Ala. 302.) But the only principle on which a man can be rendered liable for the wrongful acts of another, is that such a relation exists between them that the former, whether he be called principal or master, is bound to control the conduct of the latter, whether he be agent or servant. The maxim of the law is respondeat superior. (Blackwell v. Wiswall, 14 How. Pr. R. 258.)

The rule of liability [of a principal for the acts of his agents], is not based upon any presumed authority in the agent to do the acts, but upon the ground of public policy. (Lee v. Village of Sandy Hill, 40 N. Y. 448; Farmers' Bk. v. Butchers' Bk. 16 N. Y. 133.) The wrongful act is the servant's in fact and the principal's by construction. (Bruff v. Mali, 34 How. Pr. R. 344.) "A servant in a glass-house nowise employed in filling the pots, and not having anything to do with the management of them, threw in some broken glass to secrete it from his master-held this rendered the master liable to the penalty for putting materials into a pot without notice to an excise officer. (Atty. Gen. v. Perrin, cited in appendix No. VI, to Evans' Pothier on Obligations.) It is said to be the law that a master is responsible for all wrongful acts of his servant, within the scope of his employment, and in executing the matter for which he was engaged at the time. See Allen v. London & S. W. R'way, Law Rep. 6 Q. B. 67; Rounds v. Delaware R. R. Co. 10 Sup. Ct. Rep. (3 Hun), 329.

In an an action for a libel contained in a letter, proof that it was written by defendant's daughter, who was authorized to make out his bills and write his general letters of business, is not sufficient, unless it can be shown that such libel was written with the knowledge of or by the procurement of the defendant. (Harding v. Greening, I Moore, 477; 1 Holt N. P. 531; 8 Taunt. 42.) Writing the letter was not within the scope of the daughter's authority to act for her father. (Id.) A parent is not liable as such for the wrongful acts of his child. (Tifft v. Tifft, 4 Denio, 175; and see Moon v. Towers, 8 Com. B. N. S. 611.)

If an attorney introduces slanderous matter into the pleadings, without the direction of his client, the client is not responsible. (Hardin v. Cumstock, 2 A. K. Marsh. 480.) And so by statute in Louisiana.