and he commits a fraud by forging my name, I am not liable for it. The agency must have some relation with the subject of the fraud. The utmost length to which any of the cases have carried the responsibility of a principal for his agent is to compel him to make satisfaction civilly for an injury done to an innocent person, by the fraud or misconduct of the agent acting by his authority or in his employment. It is very clear that this principle does not reach the case of a suit for a penalty under an act of Congress, or under the circumstances which have been given in evidence in the case in question. If the defendant kept a commission store, the person who purchased and removed the casks was his clerk; and not employed by him, as far as we know from the evidence, to purchase casks or anything else for him, much less to do so in violation of the act of Congress. There was no error in the court's instruction to the jury, that the penalty could not be visited upon the defendant, unless he had some agency in the illegal transaction, or some knowledge of it. The offender against the law, was the person who purchased and removed the casks, without having the marks and numbers first defaced and obliterated according to the provisions of the act of Congress; and he must answer for the offense who alone was guilty of it. New trial refused. Libel-Criminal Liability of Publisher for act of Servant. - Upon a criminal information for libel, it was proved that the three defendants, the proprietors of the newspaper in which the libel appeared, took an active part in the management of the paper, but had given a general authority to a competent editor to publish whatever he thought proper in the literary part of it. At the trial, evidence was tendered by the defendants to prove that the libel was published without their authority, consent or knowledge, and without want of due care or caution on their part, within the meaning of 6 and 7 Victoria.1 The judge refused to hear this evidence, and directed the jury that the section did not apply. Upon a rule for misdirection, held, that, notwithstanding the authority to the editor, it was a question for the jury whether the protection given by this section applied to the defendants, and that there must be a new trial. This was a criminal information for libel, tried at Winchester, before LINDLEY, J., and a special jury, a verdict of guilty having been found 1 ch. 96, sec. 7. against the defendants, who are the proprietors and publishers of the Portsmouth Times and Naval Gazette. The information had been granted at the instance of Mr. John Howard, the clerk of the peace for the borough of Portsmouth, who, in effect, had been charged, by an article in that newspaper, with having packed a grand jury at the borough quarter sessions, for the purpose of improperly dealing with an indictment for personation at a municipal election. The defendants, who pleaded not guilty only, were proved be the publishers of the paper, and to be actively engaged in the management. It appeared, however, that they employed a competent editor to superintend that part of the paper in which the libel appeared, and he had general authority to publish whatever he thought proper. The defendants then tendered evidence to show their exemption from liability under the seventh section of Lord Campbell's act.1 This evidence the learned judge refused to admit, and he directed the jury that the defendants were not in a position to avail themselves of that section. The words of the seventh section of 6 and 7 Victoria 2 are: "That whensoever, upon the trial of any indictment or information for the publication of a libel, under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication against the defendant, by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent or knowledge, and that the said publication did not arise from want of due care or caution on his part." On the 3d of November, Cole, Q. C., obtained a rule nisi for a new trial on behalf of the defendants, on the ground of misdirection in the judge's statements that the defendants were criminally responsible for the publication of the libel, although they had appointed a competent editor to conduct the newspaper, and that the publication was made without their actual authority, consent or knowledge, and did not arise from want of due care or caution on their part. Charles, Q. C., and A. L. Smith, now showed cause for the prosecution. Here the evidence established an actual publication under the general authority given to the editor by the defendants, and, therefore, this was not the mischief aimed at by the remedy given in this section. It was held by the Exchequer Chamber in Parkes v. Prescott,3 that the criminal liability for a libel published by authority, was more extensive even than the civil liability. No doubt, as far back as 1770, we find it 1 6 and 7 Vict., ch. 96. 2 ch. 96. 3 L. R., 4 Ex. 169. stated that prima facie evidence of publication, such as public exposure for sale and selling at the defendant's shop, might be rebutted by evidence in exculpation. But there is no subsequent case in which that dictum has been acted upon. From that time the law and practice concerning libel seems to have become more stringent against publishers, except so far as Fox's libel act 2 relieved them by empowering the jury to give a general verdict upon the whole matter in issue, and abolished the previous limitation of their right to consider the publication only, which was the law as laid down in Rex v. The Dean of St. Asaph, reported in a note to Rex v. Wilters.3 In 1819,4 Lord Kenyon said, at nisi prius: "He 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 the conducting of a newspaper. That was not his opinion only, but that of Lord Hull, Powell, J., and Foster, J., all high law authorities, and to which he subscribed. This was the old and received law for above a century, and was not to be broken in upon by any new doctrine upon libel." This ruling was followed by Lord TENTERDEN, at nisi prius, in Rex v. Gutch,5 who, in summing up the second trial of the same defendant, said: 6 "I tell you to-day, as I thought myself bound to tell the jury yesterday, that the proprietor of a newspaper is criminally answerable for what appears in it; I do not mean to say, nor ever did mean to say, that some possible case may not occur in which he would be exempt, but generally speaking, he is answerable." So in Hawkins' Pleas of the Crown,7 we find: "And it is said not to be material whether he who disperses a libel knew anything of the contents or effect of it, or not." There are also dicta of Lord Lyndhurst, C. B., and Alderson, B., in Colburn v. Patmore, which adopt this view of the law. The former said: 9 "There is this distinction between the case of libel and that of other acts committed by servants, that whether the libel be published negligently or willfully, the master is responsible, but in other cases, he is answerable only where the act is negligent." Alderson, B., added: "A master is presumed to authorize the insertion of a libel; in other cases, the master is not presumed to authorize the willful act of his servant in committing a tort. Does not the proprietor of a newspaper give authority to the editor to publish everything, libelous or not? Does not such a general authority cover the publication of a libel?" In the case above mentioned (Rex v. Gutch), the defendants were proved to be proprietors of the newspaper in what is said to have been then the usual manner, by their affidavit filed at the stamp office, and no evidence on the point was offered. Similar evidence, by declaration and certified copy, was made conclusive against the publisher by 6 and 7 William IV. ;1 and although that section was repealed by 32 and 33 Victoria, it was the law at the time Lord Campbell's act 3 was passed, and that evidence must have been intended by the description of "evidence which shall establish a presumptive case of publication against the defendant," contained in the seventh section. To meet this presumption created by the registration, that section. provides a protection for a publisher if he can prove that the libel was published without his authority, consent or knowledge, and without want of due care or caution, as by the insertion of a libel by an unauthorized person. It was not, however, intended in any way to apply to a case like the present, where the publisher's general authority to the editor is proved, nor where the publisher is the manager of his own paper, and no libel can appear in it if due care and caution be exercised. This is implied by the note to this section contained in Chitty's Statutes.4 That a general authority of this kind should render the defendants liable here is supported by the decision to that effect with respect to a fraudulent misrepresentation in Barwick v. English Joint Stock Banks.5 [LUSH, J. That is with respect to civil liability.] It was similarly held, upon an indictment for a nuisance, in Reg. v. Stephens.6 Cole, Q. C., and Folkard, supported the rule. The last case cited (Reg. v. Stephens), was expressly determined on the ground that there was no other remedy but an indictment, and that it was in the nature of a civil proceeding. In all cases of criminal liability, except libel, the rule is, and has always been admitted, that a person can not be responsible, without knowledge and consent, for the illegal act of his servant or agent. Even at the time of Rex v. Almon, in the year 1770, it was possible to rebut the exception to this rule with respect to libel. The presumption against the publisher, although strengthened by the course of practice before Lord Campbell's act, was always regarded as an anomaly; and it was to put an end to this anomaly, and not merely for the purpose of abolishing a particular mode of proof, that the seventh section was enacted. This is a case to which that section is exactly applicable, and the defendants ought to have been allowed to advance the evidence which they tendered at the trial. COCKBURN, C. J. I am of opinion that this rule must be made absolute. 1 ch. 76, sec. 7. 2 ch. 24, sec. 1. 3 6 and 7 Vict., ch. 96. 4 Vol. 2, (3d ed.), 1265, p. 1254, 6 L. R. 2 Ex. 359, L. 1 Q. B. 702. The facts, as I understand them, show that the defendants are the three joint proprietors of this newspaper; but it appears that, when not absent from Portsmouth, the duties of conducting the paper are divided between four persons, viz., the three defendants and an editor appointed by them to manage the literary department. The defendants undertake respectively the commercial, the advertising and the publishing duties. At the time of the publication of this libel, one of the defendants was absent in Somerset, on account of his health, and he, clearly, was not cognizant of the publication. The others were present and discharging their ordinary duties; but, as the editor had full discretion to publish whatever he thought proper in that department which issued the libelous publication, without consulting them, all the defendants must be taken, for the purpose of this rule, to have known nothing of the insertion of the article complained of. The question is, whether the defendants, or either of them, are criminally responsible. It is an undoubted principle of law, that a man is responsible, criminally, only for his own acts, or those authorized expressly by him through his appointed agent. It is not to be implied or inferred, from the fact that the defendants gave their editor a general authority to manage the paper as he thought proper, that they authorized him to do what was unlawful in the conduct of his ordinary business. Although this is the rule of law, there seems to have been introduced an exception with respect to libel. Lord Tenterden, at nisi prius, in 1829, following a previous direction of Lord Kenyon, and a statement of the law in Hawkin's Pleas of the Crown, laid down that a proprietor of a newspaper was criminally responsible for a libel, although he took no part in the publication of the newspaper, nor of the libel in question. He further proceeded to justify this ruling, and expatiated upon the danger to the public which its modification might cause. It is not necessary to say how far we dissent from that doctrine; it was considered an anomaly by high authority at the time, and I can not doubt that the seventh section of Lord Campbell's act was passed to put an end to it. It has been suggested that the object of this legislation was only to get rid of the presumption from particular evidence created by previous statute, or to apply to a case where the libel has been asserted by some one who had no authority to interfere at all with the publication. The answer to both these suggestions is, that the section was unnecessary for the accomplishment of either of these objects; and I can come to no other conclusion than that it was intended by these words to reverse this anomaly, and to render libel subject to the general law. If, then, as I think, this provision was designed to protect the proprietor of a newspaper from criminal responsibility for the act of another person, |