by means of an innuendo and evidence based on it, he was given a judgment.86 "Whether a man is called by one name, or whether he is called by another," said Lord Campbell, when this case was before the House of Lords,87 "or whether he is described by a pretended description of a class to which he is known to belong, if those who look on know well who is aimed at, the very same injury is inflicted, the very same thing is in fact done as would be done if his name and Christian name were ten times repeated." But it is essential that the innuendo, as in the example given, does not extend the sense of the defamatory matter; it should merely point out the particular individual to whom matter, in itself defamatory, does in fact apply.

88

Illustration. The application of the principles noticed above can be illustrated from the case of Collins v. Dispatch Publishing Company. The alleged defamatory statement in the defendant's newspaper was in these terms: "Complaints from outside parties were sent to the department, one asking for his dismissal on account of intimacy with a well-known young local elocutionist." In the plaintiff's cause of action, as pleaded, the statement appeared in this form: "Complaints from outside parties were sent to the department' (thereby meaning the Post-Office Department of the United

80 Same case. The innuendo following the words quoted in the text was framed thus" (meaning the factory of the plaintiffs, and meaning thereby that the plaintiffs had treated the persons in that employment in said factory with cruelty).”

87 Le Fanu v. Malcomson, 1 H. L. Cas. 637, 668 (Eng.). 88 152 Pa. 187.

States) 'one asking for his' (meaning, thereby, the said Stephen Collins) 'dismissal' (meaning, thereby, his, the said Stephen Collins', dismissal, and meaning, thereby, his, the said Stephen Collins', dismissal from his position, or the office, as Superintendent of Mails in the Pittsburgh Post-Office) 'on account of intimacy' (meaning, thereby, the intimacy of said Stephen Collins, and meaning, thereby, an improper and criminal relation of the said Stephen Collins) 'with a well-known young local elocutionist' (meaning, thereby, that the said Stephen Collins, said plaintiff, had committed the crime of adultery with a certain young woman whose occupation was that of elocutionist)." This statement of the plaintiff's claim was held to be sufficient both in form and in substance, although the court intimated that the innuendo in this case was not needed.

89

13. Publication.-The material part of a cause of action for defamation is not the speaking or the writing of the words, but the publication of them. If his words reach no one but the person defamed, the defendant may speak what slanders he pleases, without legal responsibility for the slander. A sealed letter containing libellous matter communicated only to the person libelled, may give ground for an indictment, but will not sustain a civil action for libel.90 "There must be communication by the speaker or writer to at least one third person."

This necessary element of the plaintiff's cause is

89 Hebditch v. MacIlwaine, 2 Q. B. 54, 58 (Eng.); Sheffill v. Van Deuser, 13 Gray 304 (Mass.), LEADING ILLUSTRATIVE CASES.

90 Edwards v. Wooten, 12 Rep. 35 (Eng.), 77 Eng. Reprint 1316.

technically called "publication." In common parlance the word suggests the act of making known to the public; but in law its meaning is not so limited.91 "It need not amount to anything like publication in the common usage of the word. That an open message passes through the hands of a telegraph clerk, or a manuscript through those of a compositor in a printing office, or a letter dictated by a principal is taken down in shorthand and typewritten by a clerk, is enough to constitute a publication to those persons if they are capable of understanding the matters so delivered to them. The opening of a letter addressed to a firm by a clerk of that firm authorized to open letters is a publication to him."92

14. Whether falsity of statement is necessary.— It is essential to the validity of an action for defamation that the defendant's statement be untrue. "For the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not to, possess. The plaintiff's first pleading commonly alleges in express terms that the defendant falsely and maliciously published the statement to the plaintiff's damage.31 But this is not necessary for the prima facie case.

91 Rex. v. Burdett, 4 B. & Ald. 143 (Eng.); Snyder v. Andrews, 6 Barb. 43 (N. Y.), LEADING ILLUSTRATIVE CASES.

92 Pollock, Law of Torts (7th edition), p. 245, referring to Williamson v. Freer, L. R. 9 C. P. 393 (Eng.) (telegram); Baldwin v. Elphinston, 2 W. Bl. 1037 (Eng.) (printing); Pullman v. Hill & Co., 1 Q. B. 524 (Eng.) (dictation to stenographer).

93 Per Littledale, J., in McPherson v. Daniels, 10 B. & C. 263, 270, 5 M. & R. 251, 34 R. R. 397 (Eng.).

94 Same case.

95

A denial does not bring it into issue." If P sues D for slander because D called him a thief, P need not allege that he is not a thief;96 the law gives him the benefit of the presumption of innocence, and throws on the defendant the burden of alleging and proving the truth of his charge."

99 98

97

15. Whether intent to defame is necessary. While it is necessary that there be a defamatory statement published of and concerning the plaintiff, it is not necessary to show that the defendant knew that the matter was defamatory of the plaintiff, or even defamatory of any living person. "The test is whether, under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand it in a libellous sense. A defamatory skit on "Artemus Jones" appeared in a London paper. There was no intention to describe or refer to any living person. "Artemus Jones," suggested by the name of "Artemus Ward," was intended by the publisher to be a mere imaginary person, to represent a type. But a man by the name of Artemus Jones was living in London. In his suit for libel against the publishers of the paper, the House of Lords held the defendant liable to judgment in the plaintiff's favor for £1,750.99

95 Same case. See Chap. V.

96 Chapman v. Pickersgill, 2 Wils. 145, 147 (Eng.).

97 See Chap. V.

98 Capital & Counties Bank v. Henty, 7 A. C. 741 (Eng.). And see Hulton v. Jones (1910), A. C. 20 (Eng.), LEADING ILLUSTRATIVE Cases.

99 Hulton v. Jones, (1910) A. C. 20 (Eng.), LEADING ILLUSTRATIVE CASES. And see Shepheard v. Whitaker, L. R. 10 C. P. 502 (Eng.), LEADING ILLUS. TRATIVE CASES.

"A man in good faith," said Lord Chancellor Loreburn, "may publish a libel believing it to be true, and it may be found by the jury that he acted in good faith, believing it to be true, and reasonably believing it to be true, but that in fact the statement was false. Under these circumstances he has no defense to the action."

16. Whether malice in the publication is necessary. It used to be said that malice was an essential element in the plaintiff's case in all actions for libel and slander. The declaration, complaint, or petition in an action for defamation still customarily alleges that the statement was "maliciously" published.1 But it is evident, in many cases of established defamation, that there was really no malice, no intent to injure, and, sometimes, not even carelessness on the part of the defendant."

Implied malice. The tradition that malice is essential to defamation is still strong; and the courts have met the situation by a resort to the fiction of "implied" malice. Thus it was recently remarked from the bench of the Maryland Court of Appeals: "Malice has always been divided into two kinds-implied malice, or malice in law; and express malice, or malice in fact. The first is shown by mere proof of the unauthorized use of the dedefamatory words charged. The second may be shown by the acts or conduct of the defendant imme

1 McPherson v. Daniels, 10 B. & C. 263 (Eng.). And see the form books in general use.

2 Peck v. Tribune Co., 214 U. S. 185, 29 Sup. Ct. Rep. 554, 53 L. ed. 960, LEADING ILLUSTRATIVE CASES; Todd v. Hawkins, 8 Car & P. 888 (Eng.), LEADING ILLUSTRATIVE CASES.