influenced the trial court in submitting this case to the jury. and in permitting a recovery to be had against the appellants. It is the law in this state that a corporation may be civilly responsible for libel: Missouri Pac. R'y Co. v. Richmond, 73 Tex. 572; 15 Am. St. Rep. 794. If a corporation publishes and circulates a libel by the aid and assistance of others, they are equally guilty, and will be held liable, either jointly or severally, as the pleader may elect. Their liability does not grow out of the fact that they are stockholders or members of the corporation, but springs from their active agency in producing and circulating the libel. It is the corporation that is the publisher, and not the persons constituting its membership. Simply to show that persons are stockholders and officers of the publishing corporation will not make them responsible for libelous publications appearing in the paper, unless it is shown that they in some way aided and assisted and advised its publication or circulation, or unless their duties as officers of the concern were of such character as charges them with the performance of functions concerning the publication and circulation of the paper, -such duties being of such a nature that the law would imply that such officer knew or should have known of the publication of such libelous matter. Applying these principles to the facts of this case, we find the evidence fails to connect either of the appel lants with the publication or circulation of the paper containing the libel, or that their duties as members or officers of the corporation were of such character that the law would impute to them an agency in its publication or circulation. For this reason, we reverse this case. In view of another trial, we will briefly notice some of the questions presented in the remaining assignments. This is the libel complained of: "Gregorio Narvalle and Joe Fuller, a hack-driver, were arrested and lodged in jail to-day, on charge of theft." It is insisted by appellant "that these words are not in themselves actionable; and the evidence showing no malice or special injury, that appellee was not entitled to recover, and that the only element of actual damages shown is mental suffering, and that recovery cannot be had alone for such damages." Words which impute that the plaintiff has been guilty of a crime punishable with imprisonment are actionable per se. It is not necessary that the words, to be actionable per se, should make the charge in express terms. They are actionable if they consist of a statement of facts which would naturally and presumably be understood by the hearers as a charge of crime: 13 Am. & Eng. Ency. of Law, 347-353. We are of opinion that the words charge an actionable crime. If the defamatory words charge an actionable crime, and it is shown that there is in fact an entire absence of malice, actual damages are nevertheless recoverable to the extent that will compensate the party for his injuries: Cooley on Torts, sec. 209; Republican Pub. Co. v. Mosman, 15 Col. 399; 3 Sutherland on Damages, 642. When the nature of the charge is actionable, as in this case, the law will assume, if the publication is unauthorized, that the plaintiff has been injured in his character and feelings; and evidence of damages in this respect is not required, as the law will presume that such loss resulted: 3 Sutherland on Damages, 642, 643, 645, 646, 668, 669; 13 Am. & Eng. Ency. of Law, 490; Boldt v. Budwig, 19 Neb. 744; Chesley v. Tompson, 137 Mass. 137; Marble v. Chapin, 132 Mass. 226; Mahoney v. Belford, 132 Mass. 393. We are not required, in this case, to decide whether plaintiff can recover damages on evidence alone showing mental suffering. The effect of the libel in charging an actionable crime upon the character and reputation of the plaintiff constitutes one of the principal elements of damages that the law recognizes are recoverable in all cases where the publication is unauthorized. This is upon the theory that the recovery is given in pecuniary satisfaction for the loss of character and reputation. Considering this one of the elements of compensatory damages that are recoverable, we think it is permissible to consider, in connection therewith, as a proper item of damages, the injured feelings of the party resulting from such publication. But, in this connection, the appellant contends that it is shown by the testimony of appellee that he suffered no loss to his character or reputation by reason of the libel. We do not so construe the evidence. But if susceptible of this construction, we do not believe the law will permit the evidence to have the effect contended for. The presumption of the law is, that the unauthorized publication of actionable words charging an infamous crime injures the character and reputation of the party against whom the libel is directed. This presumption that the law creates cannot be dispelled simply by the opinion of the party that it does not exist in his case. Injuries resulting to his character and feelings need not be proved, in order to permit a recovery. Such injuries are presumed. We think there was error in permitting the witness to testify as to what occurred between the appellee and the witness Garrett. It was no part of the res gestæ, and was an occurrence that had no connection with Garrett's duties as agent for appellants. The conduct of counsel, in his argument to the jury in referring to the case of Belo v. Wren, 63 Tex. 686, and his remarks in connection therewith, were not justified by the evidence, and were extremely reprehensible, and should not have been permitted by the court. The error in the verdict will not likely occur in another trial. We conclude the case should be reversed, and so report it. LIBEL. PARTIES DEFENDANT IN ACTIONS FOR: See extended note to Mo Allister v. Detroit Free Press Co., 15 Am. St. Rep. 333. An action for libel may be maintained against two, if the offense be a joint act of both: Harris ▼. Huntington, 2 Tyler, 129; 4 Am. Dec. 728; extended note to Aldrich v. Press Printing Co., 86 Am. Dec. 89. LIBEL LIABILITY OF CORPORATION FOR. A corporation may become civilly liable in damages for libel: Missouri Pac. R'y Co. v. Richmond, 73 Tex. 568; 15 Am. St. Rep. 794, and note; Evening Journal Ass'n v. McDer mott, 44 N. J. L. 430; 43 Am. Rep. 392; Johnson v. St. Louis Dispatch Co., 65 Mo. 539; 27 Am. Rep. 293; Aldrich v. Press Printing Co., 9 Minn. 133; 86 Am. Dec. 84, and extended note. Allen v. News Pub. Co., 81 Wis. 120, declares that the malice of the editor of a newspaper in composing a libelous article for publication is the malice of the corporation owning and publishing the paper, and holds the corporation liable therefor. LIBEL-PUBLICATION CHARGING CRIME. - A newspaper publication char. ging that a jury have perjured themselves in rendering a verdict is libelous: Welch v. Tribune Pub. Co., 83 Mich. 661; 21 Am. St. Rep. 629, and note. A party cannot be subjected to the wrong and outrage of a false publication of his arrest and imprisonment looking toward his guilt, without a remedy: McAllister v. Detroit Free Press Co., 76 Mich. 338; 15 Am. St. Rep. 318, and extended note. The words of a publication may be true, yet if the sense of the publication is to impute a crime, it is libelous: Democrat Pub. Co. v. Jones, 83 Tex. 302. When a man is charged, in a newspaper, with doing what, if done by him, can be nothing else but a crime, it cannot be said not to involve a criminal charge because other persons might not be so guilty: Park v. Detroit Free Press Co., 72 Mich. 500; 16 Am. St. Rep. 544. LIBEL-DAMAGES RECOVERABLE FOR. - For a full discussion of this subject, see extended notes to McAllister v. Detroit Free Press Co., 15 Am. St. Rep. 339, and Terwilliger v. Wands, 72 Am. Dec. 426. In the absence of an allegation of special damages in libel, the plaintiff can recover such damages as are the natural result of the libelous publication upon his character, repu tation, and feelings: McDuff v. Detroit etc. Journal Co., 84 Mich. 1; 22 Am. St. Rep. 673; Stewart v. Minnesota Tribune Co., 40 Minn. 101; 12 Am. St. Rep. 696. Where the libel is not actionable per se, mental anguish cannot be allowed as a part of the damage, without proof of some other injury: Hirshfield. Forth Wort Nat. Bank, 83 Tex. 452; 29 Am. St. Rep. 660, and note. See Burt v. Advertiser etc. Co., 154 Mass. 238. LIBEL - PRESUMPTION OF DAMAGE. — From a libelous publication the law implies malice and infers damages: Byam v. Collins, 111 N, Y. 143; 7 Am. St. Rep. 726, and note. HARDY V. BEATY. [84 TEXAS, 562.] JUDGMENTS-CONSTRUCTIVE SERVICE-COLLATERAL ATTACK. A judg. JUDGMENTS UPON CONSTRUCTIVE SERVICE PRESUMPTIONS IN FAVOR OF. -Judgments rendered upon constructive service by publication are given the same conclusive effect and are entitled to the same favorable presumptions as judgments upon personal service. TRESPASS TO TRY TITLE. The remedy of trespass to try title is broad enough to embrace every character of litigation affecting title to real estate. TRESPASS TO TRY TITLE-JUDGMENT IN REM-CONSTRUCTIVE SERVICE UPON NON-RESIDENT MINOR. An action of trespass to try title to an undivided interest in a tract of land is a proceeding in rem, and a judg ment therein rendered upon service by publication upon a non-resident minor heir is effective to fix the title to the land as between the parties to the action. JUDGMENTS IN REM AGAINST NON-RESIDENTS UPON CONSTRUCTIVE SERVICE - A judgment in an action to try title to an undivided interest in land, apon service by publication upon non-resident defendants, is valid, so far as it affects the title to such land. JUDGMENTS IN PERSONAM AGAINST NON-RESIDENTS BY CONSTRUCTIVE SER. VICE.A judgment against non-residents in personam for costs, upon service by publication, in an action to try title to an undivided interest in land, is without jurisdiction, and a sale under it is void. S. H. Lumpkin, for the appellants. Gillette and Murrell, and D. H. Hewlett, for the appellees. FISHER, J., Section B. This suit is for partition of the Joseph L. Wilson 640 acres survey of land, brought by appel 12 lants against the unknown heirs of F. H. Alley, and against appellees, J. R. Beaty and A. W. Barfort, February 9, 1889. Thomas Jones and Mary Taylor and her husband, C. W. Taylor, intervened, and disclaimed as to certain lands described in the petition, and set up title to the remainder. Beaty set up exclusive title to 120 acres by metes and bounds, and Barfort to 220 acres out of the south half of the survey, and both disclaimed title to remainder of the survey. Both pleaded the statutes of three, five, and ten years' limitation, and improvements in good faith. As to pleas of limitation, plaintiffs pleaded coverture, and not guilty to plea of intervention. The unknown heirs of Alley, by their guardian ad litem, answer, and adopt the allegations of plaintiffs' petition. Judgment below was rendered, against appellants and the unknown heirs of Alley, in favor of the defendants, and also in favor of interveners for 320 acres of the north half of the survey, and removing plaintiffs' claim as a cloud in the interveners' and defendants' title, and vesting the title to the land in defendants and the interveners. The plaintiffs and the unknown heirs of Alley assert title to the land as the heirs of Joseph Wilson. The defendants and the interveners assert and claim title to the land under a judgment rendered in favor of G. W. Outler, against the heirs of Joseph Wilson, in the district court of McLennan County, Texas, June 5, 1856, divesting the heirs of Wilson of an undivided half-interest in the lands, and vesting title thereto in Outler; and also under an execution sale of the interest of the heirs in the land that was sold under an execution for costs incurred in the case of Outler v. Heirs of Joseph Wilson. Outler was the purchaser of the undivided half-interest of the Wilson heirs in the land at this execution sale. The defendants and interveners claim under Outler. The court below instructed the jury as follows: "That if they believed that the plaintiffs are entitled to inherit the estate of Andrew J. Wilson or Joseph Wilson, then they are instructed that the patent deeds and judgment executions and return thereon read in evidence are sufficient to entitle the defendants and the interveners to recover against the plaintiffs and the unknown heirs of F. H. Alley," and instructed them to so find. On the trial below, appellants objected to the introduction in evidence by the interveners and defendants of the judg AM. ST. REP., VOL XXXI -6 |