Andres v. Wells

Spencer, J. delivered the opinion of the court. Two questions arise in this case, for our consideration. - 1. Is a proprietor of a newspaper, in which a libel is published, answerable by action, though he has no concern in conducting it, and the publication was without his privity ? 2. Is the defendant to be considered, in point of fact, such proprietor? In the case of Rex v. Walter, (3 Esp. N. P. Cas. 21.) Lord Kenyon was clearly of opinion that the proprietor of a newspaper was answerable criminally, as well as civilly, for the - acts of his servants or agents, for misconduct in conducting a newspaper; and he said it was not his opinion only, but that ' of Lord Hale, Justice Powell, and Justice Foster; that it was the old received law for aboye a century, and was not to be broken in upon by any new doctrine upon libels; and, under this opinion, the defendant was found guilty, though it was shown he had nothing to do with conducting the paper, resided entirely in the country, and that it was con- , ducted by his son, without any interference on his part. The defendant’s counsel contend, that the law is otherwise, and they rely on Lambe’s case, (9 Co. 59.) and the King v. Almon, (5 Burr. 2686.) In Lambé’s case it was resolved, among other things, that to convict a person of a libel, he ought to be the contriver, procurer, 'or publisher of it, knowing it to be a libel. In the King v. Almon, the [263] selling a libel by a servant, in the defendant’s shop, was held prima facie evidence of a sale by the master’s orders; but jt was admitted by the court, that this presumption might be repelled. There is, in fact, no contradiction between these cases. The law, as laid down in Lambe’s case, is general. The court were not called on to say how far the master is responsible for the act ot his servant; and in Almorís case, the admission that the defendant might repel the presumption, went on the principle that the master might show that the act of his servant was not attributable to him, in so far as the servant exceeded his authority. But where a manís , the owner of a paper, and gives over the conducting of it • to another, he thereby constitutes him his general agent; and is answerable for all his acts done in the execution of that trust, whether within or beyond the intention of the principal. The case of the King v. Topham, (4 Term Rep. 126.) in which the court was unanimous, contains the same doctrine as the case of the King v. Walter; that the proprietor of a paper is answerable for the publication of a libel. It would be too much to say, that any man might with impunity own and sustain a public newspaper, xvithout any responsibility for the libels xvith xvhich it might abound. The principle laid down by Lord Kenyon is salutary and essential. On the second point there is some seeming contrariety; the defendant admitted that he was one of the owners and proprietors of the paper in xvhich the libel xvas published, and that he and another employed the workmen. But it appeared from the testimony of txvo xvitnesses called by the defendant, that the press and other things were assigned by the former proprietors to the defendant and Hillhouse, as security for a debt; that they never took possession of the press, nor furnished any materials, nor paid the workmen, nor received any of the profits; that it was not sold bv them, but by others, when the defendant was released from his responsibility, and ceased to have any interest in the press. The judge declared, that if the jury believed the [264] facts there proved, he should direct them to find for the defendant; and the plaintiff submitted to a nonsuit. If the facts proved by the defendants are conceded to be• true9 (and the submitdng to a nonsuit is such a concession7) the judge was correct in the opinion he gave. The defendants are not to be considered absolute proprietors, but rather as lnortgagees; the mortgagor being left in possession, such a 1~en is nbt that kind of ownership which is requisite to ren. a person liable in this action as a proprietor. Judgment of nonsuit.