Andres v. Wells — 7 Johns. 260

Majority

p. 260

Andres against Wells.

NEW-YORK,

Nov. 1810.

Headnote

An action for a the 'proprietor ‘ dfted Sby6ttanopublication^ was Sedeknowíedge of such proprie-

But where a printing press and newspaper establishment were assigned to asPs”curity for a press remained m the sole-possession and managemcnt of die •was held not tó he such an ownership in the theS security'1 or sender him°iiad hie to an action, j?ts proprietor.

THIS 'was an action on the case for a libel, The cause was tried before Mr. Justice Van Ness, at the Rensselaer circuit, in June, 1810.

The libel was proved to have been published in the Troy Gazette, the 3d October, 1809; the paper was printed by John C. Wright, who was the editor.

It was proved that the defendant, after the publication of . . ' 1 the libel m question, admitted that he was one of the pro- . Tir • . 1 , ■ „ . prietors. Wright and two others were owners or the press an¿ establishment, and assigned the same to the defendant and Thomas Hillhouse, as security for their endorsement on. ceriajn notes; but they did not receive- the profits of the J r paper, nor had they any agency in its publication; nor were-' they consulted about the articles inserted, the same being . left to the exclusive management of Wright. By the agree? naent between Wright and the defendant and Hillhouse, if die notes were not paid, the press and establishment were ¡-q be the absolute property of the defendant and Hillhouse. 1 J Wright, with their assent, afterwards sold the press, &c. to one Lewis, and discharged the defendant and Hillhouse from their responsibility on the notes,. During the time the

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defendant and Hillhouse held the assignment as security, they did not take possession of the press, nor advance any money to pay the workmen; but the same was conducted solely at the expense of Wright and the original owners.

The judge told the jury, that if they believed the witnesses, as to the assignment and the nature of the interest of the defendant, he would be entitled to a verdict; on which the plaintiff submitted to a nonsuit, with liberty to ínove the court to set it aside, and grant a new trial.

J. Russel, for the plaintiff.

1. In the case of Rex v. Walter,^[6] Lord Kenyon held it to be clear and settled law, that the proprietor of a newspaper was answerable criminally, as well as civilly, for the acts of his servants or agents, for any misconduct in the conducting of a nexus- paper; and he stated this to be the opinion of Lord Hale, Justice Powell and Justice Foster. In Rex v. Almon,^[2] Lord Mansfield stated the law tobe, that buying a pamphlet in the shop of a bookseller and publisher, of a person acting in the shop, was a prima facie evidence of a publication by the master himself.^[3] the law on this point. There can be no doubt as t o

2. The defendant admitted he was one of the proprietors, and though the press and establishment were assigned to him and Hillhouse as security, it makes no difference.

His own admission and acts are sufficient to make him answerable. He had, at least, a qualified property, which enabled him to control the printer, who is to be regarded ' as his agent or servant. Evidence of a person’s being a servant de facto, is enough.^[4]

Foot and Van Vechten, contra.

1. The defendant cannot be liable to this action, unless he had some knowledge of, or was privy to the publication. To render a person liable for a libel, he must be the contriver, procurer, or publisher of it, knowing it to be a libel.^[5] The case of the King v. Almon, confirms this doctrine. Ownership is mere prima

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facie evidence of liability, and which may be contradicted. If the publication was made without the knowledge of the defendant, he ought not to be responsible for the act of another, of which he was totally ignorant. No knowledge of the publication is brought home to the defendant; nor is there any evidence of any act or concurrence on his part, as to the publication. Malice cannot be presumed where there is no knowledge; and there ought to be some evidence of a criminal intent.^[6] The case of Rex v. Walters is not the law in regard to libels, as laid down in Lambe’s case, and the case of the King v. Almon.

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

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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

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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.