may have been made without his knowledge, in his absence, and contrary to his orders. His liability is not on the ground of his being the publisher, nor of being presumed to be the publisher, but because he is responsible for the acts of the actual publisher.'

umns.

1 The proprietor of a newspaper is responsible for whatever appears in its colIt is unnecessary to show that he knew of the publication, or authorized it (Huff v. Bennett, 4 Sandf. 120), for he is liable even though the publication was made in his absence and without his knowledge, by an agent to whom he had given express instructions to publish nothing exceptionable, personal, or abusive, which might be brought in by the author of the libel. (Dunn v. Hall, 1 Carter [Ind.], 345; and see Curtis v. Mussey, 6 Gray [Mass.] 261.)

An action for a libel lies against the proprietor of a gazette edited by another, though the publication was made without the knowledge of such proprietor. (Andres v. Wells, 7 Johns. 260; and see Buckley v. Knapp, 48 Mo. 152; McDonald v. Woodruff, 2 Dill. Cir. Ct. R. 244; Perrat v. Times Newspaper, 25 La. Ann. 170.)

But if a printing press and newspaper establishment be assigned to a person merely as security for a debt, and the press remains in the sole possession and management of the assignor, the ownership of the person holding the security or lien is not such as will render him liable to an action as proprietor. (Andres v. Wells, 7 Johns. 260.)

A receiver of a newspaper establishment, appointed to take charge thereof, and continue the publication of the newspaper, would be responsible for any defamatory matter published in the newspaper while the same was under his control. (Martin v. Van Schaick, 4 Paige, 479.) Although a receiver having charge of the publication of a newspaper is responsible for what is published, his responsibility is not to be tested by an action. A receiver is an arm of the court, he is not to be sued. (Camp v. Barney, 6 Sup. Ct. Rep. [T. & C.] 622.) The proper mode of procedure is by petition to the court appointing the receiver: This was the course pursued in Stubbs v. Marsh, 15 Law Times, N. S. 312. In that case damages were awarded the petitioner, and it being found that the libel was published through the carelessness of the receivers, they were ordered personally to pay the costs of the petition. A receiver of a railroad was held liable as a common carrier. (See Blumenthal v. Brainerd, 38 Vt. 408; Paige v. Smith, 99 Mass. 395; Kerr on Receivers, 193, note; Camp v. Barney, 6 Sup. Ct. Rep. [T. & C.] 622.) A receiver was appointed to carry on the publication of a newspaper in Dayton v. Wilkes, 17 How. Pr. R. 510; Kelly . Hutton, 17 Weekly Rep. 425.

ย.

The editor and publisher of a newspaper is answerable in law, if its contents are libelous, unless the libelous matter was inserted by some one without his order and against his will. (The Commonwealth v. Kneeland, Thacher's Crim. Cas. 346.)

The liability of the proprietor for all that appears in his paper, proceeds from this: He puts the instrument for wrong doing in the hands of the wrong-doer. He may be compared to one who keeps a dangerous animal, and who is bound so to keep it that it does no harm; if harm ensues he must answer for it. (See Domat, § 1568, and note-One maliciously setting a bear loose.)

Rex v. Gutch, 1 Moo. & Mal. 433 on the trial of defendant for publishing a libel in a newspaper of which he was the proprietor, it was contended on his behalf

§ 124. The liability of the proprietor of a newspaper is shared in common with the proprietor of a printing press, a printer, book publisher, and bookseller. The proprietor of a bookstore is responsible for the contents. of every book and paper sold in his store.'

that he was not liable, because he took no part in the publication of the newspaper; but he was held liable and the court said: "A person who derives profit from and who furnishes means for carrying on the concern, and intrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears ;" and see Rex v. Alexander, 1 Moo. & Mal. 437; 3 Albany Law Jour. 46; and see Atty. Gen. v. Siddon, 1 Cr. & Jer. 220.

"It is not material whether the person who disperses libels is acquainted with their contents or otherwise, for nothing would be more easy than to publish the most virulent papers with the greatest security, if the concealing the purport of them from an illiterate publisher would make him safe in dispersing them. (2 Starkie on Slander, 30, note z; Moore, 627; Wood's Inst. 431; Bac. Abr. tit. Libel, 458; see note, p. 163, ante.)

Nutt's Case, Fitzg. 47; Barnard. 306: The defendant was tried for publishing a libel. It appeared in evidence the defendant kept a pamphlet shop, and that the libel was sold in defendant's shop, by her servant, for her account, in her absence, and that she did not know the contents of it, nor of its coming in or going out. This was held to be a publication by the defendant, but a jury was withdrawn.

Rex v. Dodd, 2 Sess. Cas. 33: The defendant was tried for publishing a libel. It was insisted for the defendant that she was sick, and that the libel was taken into her house without her knowledge. This was held no excuse; the law presumed her acquainted with what her servant did.

In Rex v. Almon, 5 Burr. 2689, the liability of booksellers was much discussed, and the court expressed an opinion that the sale of a libel in a bookseller's shop was prima facie evidence of a publication, though not so conclusive but that it might be rebutted by circumstances. It is said (2 Starkie on Slander, 34), "But the defendant may rebut the presumption by evidence that the libel was sold contrary to his orders, or clandestinely; or that some deceit or surprise was practiced upon him; or that he was absent under circumstances which entirely negative any presumption of privity or connivance." And reference is made to Rex v. Almon, supra, and to Woodfalls' Case, where the publication was by a servant of the defendant, the defendant being at the time within prison walls. In Rex v. Fisher, 1 Moo. & Mal. 433, it is said the presumption arising from proprietorship of a newspaper may be rebutted, and an exemption established. If the publication is made without the consent of the writer, the offense is not complete as to him. (Weir v. Hoss, 6 Ala. 881. See Holt on Libel, 294.) As if the writing be stolen from him. (Mayne v. Fletcher, 9 B. & Cr. 382.)

In Chubb v. Flanaghan, 6 Car.

43, it was held that if a publication con

sists in merely 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.

CHAPTER VII.

CONSTRUCTION OF LANGUAGE.

Actionable quality of language dependent upon its construction All language ambiguous or unambiguous -Difficult to determine what is and what is not ambiguous-Points upon which ambiguity may ariseCauses of ambiguity-Ambiguity, how explained— Different effect of language concerning a person and of language concerning a thing-Materiality of questions, what person or thing affected, and whether the person is affected as an individual merely, or in some acquired capacity-Principles of construction; before verdict; after verdict-Examples of constructionDivisible matter.

125. Language as a means for effecting a wrong must be either such as is actionable or such as is not actionable. To which of these divisions any particular language is to be referred may depend upon the construction of the language in question. Anterior, therefore, to an inquiry into what language is and what language is not actionable, it is proper here to consider at least the principal rules by which alleged defamatory language is construed. The question as to when the construction is with the court, and when by the jury is discussed in a subsequent chapter (§§ 281-286).

§ 126. Language may be ambiguous or unambiguous.' It is not easy in every case to determine what is

1 "Words or signs may be divided into three classes: (1) those which bear an obvious and precise meaning on the face of them; as if A. say to B., you murdered C.; (2) those which on the face of them are of dubious import, and are capable either of a criminal or innocent meaning; as if A. says to B., you were the death of

ambiguous and what is unambiguous language. Language may be unambiguous on its face, which, by reason of some circumstances connected with it, is in fact ambiguous. This is always the case with language used ironically. When language is unambiguous on its face, it must be construed as unambiguous, unless its ambiguity be shown; and on the one who asserts the ambiguity of language unambiguous on its face, is the burden of establishing the ambiguity.'

§ 127. When language is ambiguous, the ambiguity may be either (1) whether the language concerns a person or a thing, or (2) what person or what thing it concerns, or (3) if it concerns a person does it concern him as an individual merely or in some acquired capacity, as in an office, trade or profession; (4) what is the import or signification of the language, and (5) is the charge or matter divisible or indivisible.

C.; (3) those which are prima facie and abstractedly innocent, and which derive their offensive quality from some collateral or extrinsic circumstances; as if A. says to B., you did not murder C., which words, from the ironical manner of speaking them, may convey to the hearers as unequivocal a charge of murder as the most direct imputation." (1 Starkie on Slander, 46.)

1 "Where the words of themselves impute a larceny, and are unaccompanied by an explanation showing the hearers that they were not so intended, the defendant must show that they referred to a transaction that was not larceny, and were so understood by all who heard them. And where the plaintiff had taken wood through mistake, and defendant, knowing the excuse for taking it, persists in charging him with stealing, in reference to such taking, he cannot fall back and rest upon the plaintiff's innocence." (Phillips v. Barber, 7 Wend. 439; and see Maybee v. Fisk, 42 Barb. 336.)

"As doubtful or apparently innocent words may by circumstances be shown to be actionable, so may words apparently actionable be explained by circumstances to have been intended and understood in an innocent sense. Thus, though the defendant should say, Thou art a murtherer, the words would not be actionable if the defendant could make it appear that he was conversing with the plaintiff concerning unlawful hunting, when the plaintiff confessed that he killed several hares with certain engines, upon which the defendant said, Thou art a murtherer, meaning a murtherer of hares so killed. 4 Co. 13." (1 Starkie on Slander, 98; § 134, n.) Where the words are defamatory on their face, the burden is on the defendant to show they have not the meaning they plainly import. (Myers v. Dresden, 40 Iowa,

§ 128. The ambiguity may be patent or latent, that is to say, the ambiguity may be inherent in the language and apparent upon its face, or the ambiguity may arise by reason of the language in question being connected. with some other language or event in such a manner as that its accustomed signification is affected and changed by such other language or event.

129. The ambiguity of language unambiguous upon its face is shown, and the ambiguity of language in every case is explained, by introducing the other language or event which exhibits or which explains the ambiguity, and by alleging the supposed true meaning of the language in question. The manner by which ambiguity is shown and explained is by allegations in pleading, termed averments, colloquia, and innuendoes, the nature and offices of which several allegations will be considered under the head of Pleading.'

$130. Whether the language concerns a person or a thing, i. e., the affairs of a person (§§ 25, 27, 28), is material in this respect: that language, when it concerns a person and is discommendatory, is always, in the ab

1 An averment is to ascertain that to the court which is generally or doubtfully expressed, so that the court may not be perplexed of whom, or of what, it [the language] ought to be understood, and to add matter to the plea to make doubtful things clear. A colloquium serves to show that the words were spoken in reference to the matter of the averment. An innuendo is explanatory of the subject-matter sufficiently explained before, and it is explanatory of such matter only; for it cannot extend the sense of the words beyond their own meaning unless something is put upon the record for it to explain. (Van Vechten v. Hopkins, 5 Johns. 220; see fost, $308, 323, 335.)

It seems that in some instances where the language is unambiguous on its face, the plaintiff will not be allowed to treat it as ambiguous, and give it a meaning different from that it ordinarily bears. Thus the words spoken of a dyer were: "Thou art not worth a groat." The plaintiff alleged that at E., where the words were spoken, they were all one as calling him bankrupt. The court held the averment idle, because the words in themselves imply a plain and intelligible sense. (Meade v. Axe, Mar. 15, pl. 37.) "It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning." (McCluskey v. Cromwell, 11 N. Y. 601; Bartlett v. Robinson, 6 Trans. App. 166.)