the press implies exemption from censorship, and a right in all persons to publish what they may see fit, being responsible for the abuse of the right. But whether the conductor of a public journal has any privilege above others in publishing, is not fo clear. The freedom of the press was undoubtedly intended to be secured on public grounds, and the general purpose may be said to be, to preclude those in authority froin making use of the machinery of the law to prevent full discussion of political and

other matters in which the public are concerned. With [*218] this end in view not only must freedom of discussion

be permitted, but there must be exemption afterward from liability for any publication made in good faith, and in the belief in its truth, the making of which, if true, would be justified by the occasion. There should consequently be freedom in discussing, in good faith, the character, the habits, and mental and moral qualifications of any person presenting himself, or presented by his friends, as a candidate for a public office, either to the electors or to a board or officer having powers of appointment. The same freedom of discussion should be allowed when the character and official conduct of one holding a public office is in question, and in all cases where the matter discussed is one of general public interest.❜

'Story on Const. § 1889, 2 Kent, 17; Rawle on Const. Ch. 10; Cooley Const. Lim. 420; 4 Bl. Com. 151; Commonwealth v. Blanding, 3 Pick.

304.

2 Lewis v. Few, 5 Johns. 1; King v. Root, 4 Wend. 113; Hunt v. Bennett, 4 E. D. Smith, 647; S. C. 19 NY. 173; Curtis v. Mussey, 6 Gray, 261; Aldrich v. Printing Co., 9 Minn. 133; Mayrant v. Richardson, 1 N. & McC. 348. See Gathercole. Miall, 15 M. & W, 319; Purcell . Sowler, L. R. 1 C. P. Div. 781; S. C. in Error, 2 C. P. Div. 215; State v. Balch, 31 Kan. 465; Express Printing Co. v. Copeland, 64 Tex. 354. Otherwise if the article falsely accuses the candidate of a crime. Bronson v. Bruce, 59 Mich. 467. As to liability of individual citizens in like circumstances, see Marks v. Baker, 28 Minn. 162; Mott v. Daw

son, 46 Ia. 533; Bays v. Hunt, 60 Ia. 251; Wheaton v. Beecher, 33 N. W. Rep. 503 (Mich.)

Purcell. Sowler, 1 C. P. Div. 781; Wason v. Walter, L. R. 4 Q. B. 73; Kelley v. Sherloch, L. R. 1 Q. B. 686; Kelley v. Tinling, L. R. 1 Q. B. 699; Palmer v. Concord, 48 N. H. 211; Miner. Detroit, &c., Co., 49 Mich. 358. As to what is matter of public interest, see Purcell . Sowler, L. R. 2 C. P. Div. 215, qualifying the decision in the court below. Also, Davis . Duncan, L. R. 9 C. P. 396; S. C. 10 Moak, 228; Henwood v. Harrison, L. R. 7 C. P. 606; S. C. 3 Moak, 398. A newspaper article attacking a State Senator for his votes and attributing corrupt motives for ther is libellous per se. "If one goes out of his way to asperse the personal character of a public man

The public press is also allowed to give full reports of judicial trials and hearings, provided they are not ex parte merely, and are not indecent or blasphemous. But such reports must be confined to the actual proceedings, and must contain no defamatory observations, headings or comments. The [*219] reason why the publication of ex parte proceedings is

not privileged is, that it has a tendency "to prejudge those whom the law still presumes to be innocent, and to poison the source of justice."1

The privilege of the press is not confined to those who publish newspapers and other serials, but extends to all who make use of it to place information before the public.'

No privilege seems to be accorded to the publication of news;' but publishers will not be liable in exemplary damages for the appearance in their journals of false items of intelligence without their personal knowledge, where they have been guilty of no negligence in the selection of the agents through whom the publication has been made, and have not been accustomed habitually to make their journals the vehicle of detraction and malice;' and the press may lawfully warn the public against the con

before docketing or hearing. Cowley

. Pulsifer, 137 Mass. 392. Nor to printing slanderous remarks of counsel during a trial. Cone v. Godshalk, 13 Phila. 575. See, also, McDermott . Erg. Journal Co., 43 N. J. L. 488, on what is not a report of a judicial proceeding. The report of judicial proceeedings to be privileged must not only be fair, but made in good faith and without malice. Stevens v. Sampson, L. R. 5 Ex. D. 53.

'Per ELLENBOROUGH, Ch. J., in Rex v. Fisher, 2 Camp. 563. See Duncan v. Thwaites, 3 B. & C. 556; Flint v. Pike, 4 B. & C. 473; Charlton v. Watton, 6 C. & P. 385; Behrens v. Allen, 3 Fost. & Fin. 135; Huff v. Bennett, 4 Sandf. 120; Stanley . Webb, 4 Sandf. 21; Matthews v. Beach, 5 Sandf. 256; Usher v. Seve rance, 20 Me. 9. But if the result of an ex parte proceeding is that the accused party is discharged, the proceeding, it seems, may be published. Curry v. Walter, 1 B. & P. 525; Lewis . Levy, El. Bl. & El. 537; Usill v. Hales, L. R. 3 C. P. D. 319. A member of a legislative body, it is said in England, is not privileged in publishing the words of a speech

made by him to the House. Rex . Lord Abingdon, 1 Esp. 226; Rex & Creevy, 1 M. & S. 273. But in this country, where the publication of speeches and debates is made by au thority of law, it would seem that the privilege to publish must be as broad as the privilege to speak. In Louisi ana it is held that a newspaper is privileged in publishing the testimony taken before a Congressional committee. Terry v. Fellows, 21 La. Ann. 375. There is no privilege in publishing a slander uttered by a murderer at the gallows. Sanford v. Bennett, 24 N. Y. 20. Nor merely because the publication relates to a matter of public interest. Wilson v. Fitch, 41 Cal. 363.

2 See Barrows v. Bell, 7 Gray, 301.

Barnes v. Campbell, 59 N. H. 128; Pratt v. Pioneer Press Co., 30 Minn. 41; Mallory v. Same, 34 Minn. 521. See Bronson v. Bruce, 59 Mich. 467; Negley v. Farrow, 60 Md. 158.

▲ Daily Post Co. v. McArthur, 16 Mich. 447; Perrett . New Orleans Times, 25 La. Ann. 170; Scripps. Reilly, 35 Mich. 371; Gibson v. Cincinnati Enquirer, 5 Cent. L. Jour. 380.

duct and *motives of those who are believed to be dis- [*220] loyal, or to threaten the peace of the State; and the fair

and honest discussion of matters of public interest is always privileged.1

Repeating Slanders and Libels. There is no privilege in repeating defamatory publications. Therefore it is no defense that the defendant only repeated what had been told him by another whose name he gives, or copied into his newspaper a charge originating elsewhere, or published it as an advertisement or communication. Sometimes the fact may mitigate damages, but it cannot excuse the publication. Neither is it a defense that a report was current and generally believed that the plaintiff was guilty of what was imputed to him, or that the publication professed to give a rumor merely.'

'Kinyon. Palmer, 18 Iowa, 377. The result of a trial may be given as an item of news. Whitney v. Janesville Gazette, 5 Biss. 330. Matters beld not to come within rule as to public interest. Atkinson v. Detroit &c. Co., 46 Mich. 341; Tryon v. Erg. News Assn., 39 Mich. 636. An interview on a matter of public interest "must be made upon a proper occasion, from a proper motive and must be based on reasonable or probable cause." Press Co. v. Stewart, 14 Atl. Rep. 51 (Penn.)

Rex . Newman, 1 El. & Bl. 268; Parker. McQueen, 8 B. Mon. 16; Hampton. Wilson, 4 Dev. 468; Keney. McLaughlin, 5 Gray, 3; Evans. Smith, 5 T. B. Mon. 363; Hotchkiss . Oliphant, 2 Hill, 510; Sheahan . Collins, 20 Ill. 325; McDonald . Woodruff, 2 Dill. 244; Sans . Joerris, 14 Wis. 663; Funk v. Beverly, 13 N. E. Rep. 573 (Ind.) No excuse that at the time he expresses a doubt of its truth, nor that he repeats it to get advice whether person affected should be informed of it, when there is no confidential relation existing between them. Branstetter v. Dorrough, 81 Ind. 527. But,

see, Cook v. Howe, 77 Ind, 442. That he repeats the story will not shield one unless at the time of the repetition he gives the plaintiff an action against the original author. Johnson v. St. Louis &c. Co., 65 Mo. 539. It is not a repetition for one to say to another "A. said all she wanted to about P.” Pauley v. Drain, 6 S. W. Rep. 329 (Ky.)

Moberly. Preston, 8 Mo. 462; Knight v. Foster, 39 N. H. 576; Cade v. Redditt, 15 La. Ann. 492; Clarkson v. M'Carty, 5 Blackf. 574; Johnston . Lance, 7 Ired. 448; Perrett v. Times Newspaper, 25 La. Ann. 170.

4 Wheeler v. Shields, 3 Ill. 348; Mason v. Mason, 4 N. H. 110. See Thompson v. Bowers, 1 Doug. (Mich.) 321; Treat v. Browning, 4 Conn. 408; State v. Butnam, 15 La. Ann. 166. Giving with the publication the name of the author is no protection. Dole . Lyon, 10 Johns. 447; Cates v. Kellogg, 9 Ind. 306; Haines v. Welling, 7 Ohio, 253; Fowler v. Chichester, 26 Ohio, (N. s.) 9; Cummerford v. McAlvoy, 15 Ill. 311; Inman v. Foster, 8 Wend. 602. Nor is it a defense that a rumor existed previous to the publication to the same effect. Haskins v.

Slander of Property. A person may be as seriously injured by misrepresentation of his property as by the slander of himself in respect to his business; and, indeed, the two often go together. But there may be misrepresentation in respect to particular articles of property not connected with one's business, and where the injury will concern the property alone. Such misrepresentation is actionable, provided it is malicious [*221] and *damaging; but malice will not be presumed, and damage must be alleged and proved.'

Slander of Title. An action lies for maliciously slandering the title to the plaintiff's property; but here, as in slander of property, it is necessary to aver and prove both malice and damage. The action rests upon the general principle that when one injures another by any wrongful and malicious conduct, he is liable in an action on the special case. It is of course never wrongful for one to assert a title in himself to property, or to seek to establish it by judicial proceedings, provided this is done in good faith; and good faith must be presumed while the proceedings are pending; but we have seen that after they are disposed of, an action may lie, if malice and want of probable cause be

made out."

Lumsden, 10 Wis. 359; Knight v. Foster, 39 N. H. 576: Carpenter v. Bailey, 53 N. H. 590; Skinner v. Powers, 1 Wend. 451; Beardsley v. Bridgman, 17 Iowa, 290. But the fact may miti. gate damages. Farr v. Rasco, 9 Mich. 353.

'Gott v. Pulsifer, 122 Mass. 235; S. C. 23 Am. Rep. 322. If the falsity of the representations is proved, and injury resulting therefrom, it is said malice is to be presumed. Swan o. Tappan, 5 Cush. 104.

2 Malachy v. Soper, 3 Bing. (N. C.) 371. In this case and in Bigelow's notes thereto, Lead. Cas. 54-59, the authorities are fully collected.

See ante. p. *180. The action is founded on malice. Walkley v. Bostwick,49 Mich.374; Meyrose v. Adams, 12 Mo. App. 329; Dodge v. Colby, 37 Hun, 515. An action for slander of title to letters patent will lie. Andrew v. Deshler, 45 N. J. L. 167; Meyrose v. Adams, 12 Mo. App. 329. And to a trademark and it survives. Hotchard v. Mège, L. R., 18 Q. B. D. 771. If the words are spoken by a stranger the law implies malice; otherwise if by one interested in it and for his own protection. Andrew v. Deshler, 45 N. J. L. 167.