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committed through no fault of his, and without his authority, does not the case here come within its application?

As to the defendant who was absent, he clearly was protected, unless the prosecution can show that his general authority to the editor expressly included power to publish libels. As to As to the other two defendants the section provides protection from liability for a publication made without a publisher's authority, consent or knowledge, if he had exercised due care and caution; it would then be a question for the jury, looking at all the circumstances, whether those defendants can show themselves entitled to that protection.

If the jury should be in the defendants' favor on these points, they can neither of them be criminally liable. I say nothing about their position civilly, but it seems to me that the section can have no application at all if it does not apply to this case. It is not for us to say whether it is expedient or desirable that proprietors of newspapers should be freed from liability, under such circumstances, and I do not consider that question.

Simply, this section is, in my opinion, applicable to the facts upon which this rule has been granted. I think it must be made absolute, and the case must go back for a new trial.

MELLOR, J. I regret much that I am unable to concur with the Lord Chief Justice and my brother LUSH in their view of this matter. I dissent with the greatest diffidence, but I can not think that the Legislature intended to apply section seven of this act to persons situated as these defendants are. They do not, in the ordinary way, live at any distance from the publishing office, they do not keep away from the general management of the paper, and the whole business is conducted for their profit and by their authority. The editor might, by inadvertence, have published this libel, but the want of care would then deprive the publication of the protection given in the act. I think too, that the absent partner is in the same position as the other two; they all gave their editor a general authority to do what he liked; they vested their discretion in him, they put themselves in his hands, and they must be taken to have authorized whatever he has done. The seventh section requires not only the absence of authority, consent and knowledge, but also the presence of care and caution. I quite agree that, upon the evidence adduced at the trial, this libel must be taken to have been published without the knowledge of the defendants; but to be exempt from liability, they must further prove that it was beyond the authority they had given to their editor, and that they were duly careful and cautious in respect of its publication.

If my brother LINDLEY took the view that the statute did not apply

because the defendants could not show all or some of these conditions of exemption, he seems to me to have been right in his summing up and refusal to hear the evidence tendered.

Proprietors who take part in the management of their paper, but commit themselves to the discretion of an editor who is careless, can not escape responsibility; but if the failure in care is not due to the proprietors themselves, or to the person whom they trust, then it may be that this clause applies. The defendants here take various parts in managing their paper, and the learned judge was right, in my opinion, if he said, upon the evidence before him, that the libel was published with the defendants' authority and consent, if not with their actual knowledge, and that the protection given by this section did not cover them unless they showed no want of care on the part of the editor.

The case, however, must go for a new trial upon the judgment of the majority of the court.

LUSH, J. There are two questions for our consideration: one as to the construction of the seventh section of Lord Campbell's act; the other, whether the evidence adduced at the trial was sufficient to justify the direction that this section did not protect the defendants. And, first, what was the object of this section?

The act professes to amend the law of libel, and to understand this particular provision, we must consider what was the state of the previous law. We find that a proprietor was then liable, criminally, for the publication of a libel in his paper without his knowledge or authority. This was admitted to be an anomaly, and felt to be a hardship.

The nuisance case cited is quite a different matter; that was a public injury for which there was no private remedy, whilst a libel is a private injury for which a public remedy has been added to the existing private one. I do not feel at liberty to apply to this section the limited interpretation which has been suggested. What is the fair meaning of the words? They seem to me to exactly apply to a proprietor whose editor admits into the paper libels without his authority. The last part of the section must mean that a proprietor is bound to exercise proper care and caution in his appointment of an editor, and, if he does that, he is not responsible for the editor's acts done without his authority, consent or knowledge.

This is the remedy which the Legislature would naturally apply to such an admitted anomaly as this rule of law was. There is ample protection for the public without injury to the proprietor. The evidence tendered in this case ought to have been admitted, and it might have been sufficient, as it seems to me, to have justified the jury in finding for the defendants.

Rule absolute for a new trial.

MASTER AND SERVANT-ILLEGAL ACT OF MASTER-NEGLIGENCE

OF SERVANT.

R. v. BENNETT.

[8 Cox, 74.]

In the English Court of Criminal Appeal, November, 1858.

Illegal act of Master - Negligence of Servant Causing Death - Master not Criminally Liable. The prisoner, contrary to law, kept and manufactured fire-works in a house in London, and by the supposed negligence of one of his servants an ignition of red and blue fire was caused which communicated to the other fire-works, and a rocket shot across the street and set a house on the opposite side on fire by which the death of a person was caused. Held, that the prisoner was not guilty of manslaughter

The following case was reserved by WILLES, J.

William Bennett was convicted before me at the Old Bailey Sessions, on the 18th of August, 1858, of the manslaughter of Sarah Williams.

The substantial question is, whether a person who makes fire-works contrary to the 9 and 10 William III.,1is indictable for manslaughter if death be caused by a fire breaking out amongst combustibles in his possession collected by him, and in the course of use for the purpose of his business, but not completely made into fire-works at the time.

The prisoner had a house and fire-works shop in the Westminster road, where, for some time before the fire hereinafter mentioned, he openly carried on the business of selling fire-works. He had also a workshop at a neighbor's named Sunter, and a factory at Peckham. He had contracts to supply Cremorne and Vauxhall gardens, with fireworks, which he regularly did in considerable quantities.

He made and kept his stock of fire-works at the factory at Peckham. From thence he used to take the supply necessary for the gardens, daily, to the house in the Westminster road, where they used to be kept for two or three hours, until they were taken away for use at the gardens. In the room at Sunter's, the smaller sort of rockets were made, excepting the heads for holding stars. These heads were added at the house in the Westminster road. At the house in the Westminster road fireworks were offered for sale. No fire-works were made there, except as follows: First, the furnishing the smaller rockets, as already mentioned, and making stars for them of combustible matter. Secondly, making fireworks called serpents. Thirdly, making cases, and filling them with combustible matter, called "red, blue and green fire." It is to this last mentioned part of the business that I ought particularly to direct

1 ch. 7, sec. 1.

attention. The fire was employed for filling colored cases used to imitate revolving lights in fire-works called "wheels." These cases were not used by themselves, but in connection with these fireworks, to add to their effect. The contents of the cases of fire made at the Westminster road were combustible, and the red fire would explode if struck hard. Five or six pounds of fire were made every day in the house in the Westminster road, and filled there, in the back room, into cases with a rammer and mallet by a person employed for the purpose.

At the time of the fire there was a quantity of the red and blue fire in the house, in the room where it was to be put into the cases, in order to be used as already mentioned in the course of the business, and a quantity of fire-works for the evening.

On Monday, the 12th July, about six in the evening, the prisoner being out of the house, and not personally interfering, a fire broke out in the red and blue fire, which communicated to the fire-works, causing a rocket to fly across the street and set fire to a house at the opposite side, in which the deceased, Sarah Williams, was burnt to death. The fire was accidental in the sense of not being willful or designed. did not happen through any personal interference or negligence of the prisoner, and he is entitled to the benefit of any distinction between its happening through the negligence of his servants, or by pure accident without any such negligence.

It

It was contended that there was no case against the prisoner, inasmuch as the cases of the red, etc., fire were only parts of fire-works, and not within the statute, and that it did not appear that it was by reason of making fire-works the accident happened; and that at all events the death was not the direct and immediate result of any wrong or omission on the prisoner's part; and there was cited a case from the Sessions Reports at the Old Bailey, in which Alderson, B., is reported to have held, that an indictment for manslaughter was not maintainable under such circumstances. I, however, overruled these objections, holding that the prisoner was guilty of a misdemeanor in doing an act with intent to do what was forbidden by the statute; and that as the fire was occasioned by such misdemeanor, and without it would not have taken place, or could not have been of such a character as to cause the death of deceased, which otherwise would not have taken place, a case was made out.

The question of a nuisance, independent of the statute of William III., and the considerations arising upon it, need not be noticed, as it has been disposed of upon the facts in favor of the prisoner.

Entertaining doubts upon the above points, I request the opinion of the judges.

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Giffard appeared for the defendant, but was not called upon to argue. Martin, for the prosecution. The explosive nature of the substances is to be considered, and the prisoner is responsible for the illegal act in keeping them in such a public place.

COCKBURN, C. J. I am of the opinion that the conviction was wrong. The prisoner kept a quantity of fire-works in his house, but that alone was not the cause of the death, but by the negligence of some one of his servants, the fire-works ignited, and the house in which the deceased was, was set on fire and death ensued. So that the keeping of the fireworks in the house caused the death only by superaddition of the negligence of some one else. The keeping of the fire-works may be a nuisance, and if from that unlawful proceeding the death had ensued as a necessary and immediate consequence, the conviction might be upheld. But the keeping of the fire-works did not alone cause the death, but that act of the defendant, plus the act of somebody else, did. The defendant was not liable therefor.

WILLES, J. I am of the same opinion. Since the trial I have thought over the case very much, and as the fire which caused the death did not happen through any personal interference or negligence of the prisoner, the prisoner ought to have the benefit of that; and as the parish officers did not indict him for the nuisance of keeping a quantity of fire-works in his house, but allowed him to go on doing so for years, and as that act of the defendant, the keeping of the fire-works in the house, was disconnected with the negligence of his servant which caused the fire, my impression is very strong that the conviction can not be legally sustained. WIGHTMAN and WILLIAMS, JJ., and CHANNELL, B., concurred. Conviction quashed.

PRINCIPAL AND AGENT - CORPORATION — LIABILITY OF
STOCKHOLDERS.

PEOPLE v. ENGLAND.

[27 Hun, 139.]

In the Supreme Court of New York, Third Department, May

Term, 1882.

defendant was

Illegal Act by Corporation - Liability of Stockholder. - The indicted for publishing in a newspaper called the Sun, an advertisement of an illegal lottery. The Sun was published and printed by a duly organized corporation, the business of which was managed by a board of trustees. The defendant was a stockholder of the corporation, and was employed as its treasurer and purchasing agent, and as the superintendent of its business affairs. Upon the trial he requested the court to charge

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