and the proper postmarks outside, that is sufficient prima facie evidence of publication." The leading case cited is that of The King v. Sir Francis Burdette, Bart. (4 B. & Ald. 95). There the libel in question was written and posted in Leicestershire and delivered in the county of Middlesex, and while there was no proof nor trace of a seal or post mark on the open envelope, it was held by the justices, with one expressing doubt, that a delivery at the post-office at Leicestershire of a sealed letter inclosing a libel was a publication of a libel in Leicestershire, and it was further held that where the defendant wrote and composed a libel in Leicestershire with the intent to publish it in Middlesex, he might be indicted for a misdemeanor in either county. BEST, J., in answering the contention that there was no evidence that the libel was published in the county of Leicestershire, said: "It must be borne in mind, that the question is not whether the evidence was such as ought to have satisfied a jury of the fact of publication in Leicestershire, but whether any facts were proved, which raised a presumption of publication in that county. If there were any such fact, I could not deal with them otherwise than I did. I am of opinion that there was evidence in this case, on the part of the prosecution, which raised a strong presumption that the libel was published in Leicestershire; and no attempt having been made to rebut such presumption, it became in my mind, conclusive proof of that fact. (P. 121.)

"So in the case of a libel, publication is nothing more than doing the last act for the accomplishment of the mischief intended by it. The moment a man delivers a libel from his hands his control over it is gone; he has shot his arrow, and it does not depend upon him whether it hits the mark or not. There is an end of the locus pœnitentiæ, his offense is complete, all that depends upon him is consummated, and from that moment, upon every principle of common sense, he is liable to be called upon to answer for his act. Suppose a man

wraps up a newspaper and sends it into another county by a boy; who is the publisher? The boy, who perhaps cannot read, or is ignorant of its contents, or the man who has put it up in the envelope? The boy who carries it is merely an innocent instrument; there can be no other publisher but the person who sent it, and who publishes it when he delivers it to the boy. If the sending of a letter by the post be not a publication in the county from whence it is sent, how is a libeller to be punished who sends his libel by the post to some foreign country for circulation? The libeller will not go to the foreign country that he may be punished there. If the sending it from England is not a publication (as it is contended at the bar), can it be insisted, when the libel is completed by publication, that such a libeller can nowhere be punished?" (Pp. 126, 127.)

The learned justice discussed the subject at considerable length and pointed out that the theory of the common law, of which the civil law was strongly confirmatory, was that "publication" means "the act of delivery; which precedes the manifestation of the contents," and he refers to several cases which supported his conclusion that "the putting of a letter into the post is a sufficient publication.” (P. 128.)

HOLROYD, J., also held that as soon as a manuscript of a libel had passed out of the defendant's possession and control it was deemed to be published, so far as the defendant was concerned. He stated: "But whether it was sent away or parted with by the defendant in Leicestershire, open or sealed, makes, in my opinion, no difference with respect to the question whether it was, in point of law, published by him in that county, or not, so far as to give the jury of that county jurisdiction over that fact. In 5 Co. Rep. 126a it is laid down. that a scandalous libel may be published, traditione, when the libel, or any copy of it, is delivered over to scandalize the party. So that the mere delivering over or parting with the

libel, with that intent, is deemed a publishing. It is an uttering of the libel, and that I take to be the sense in which the word publishing is used in law. Though in common parlance that word may be confined in its meaning to making the contents known to the public, yet its meaning is not so limited in law." (P. 143.)

He also discusses the matter at considerable length and points out emphatically that the mere parting with the libel by which the defendant loses his power of control over it is an uttering and publication thereof; that the act of another person afterwards in reading the libel does not alter the defendant's criminality or the nature of his act in the county where he parted with it with criminal intent.

ABBOTT, Ch. J., was of the same opinion. He also held that the publication of a libel did not mean an actual communication of the contents of the paper, but that a libel might be published by delivery, and that the parting with the letter by the defendant in the county of Leicestershire constituted a publication.

This case was cited with approval by COLERIDGE, L. C. J., in Regina v. Holmes (15 Cox C. C. 343), where he said: *** it was held in Rex v. Burdett (4 B. & Ald. 95) and other cases that the delivery at the post-office of a sealed letter inclosing a libel is a publication of the libel at the place of posting." (P. 344.)

In United States v. Smith (173 Fed. Rep. 227) it was held where the defendants printed copies of a newspaper containing an alleged libelous article, in the city of Indianapolis, and deposited them in the United States post-office there, to be transmitted by mail to subscribers in Washington, the jurisdiction was in Indianapolis, Ind., for there the publication took place and was complete. That was a specific question presented in the case and the court held as indicated, further stating: "Where people print a newspaper here, and deposit it in

the post-office here, for circulation throughout other states, territories, counties and districts, there is one publication, and that is here." (P. 232.)

In Mills v. State (18 Neb. 575; 26 N. W. Rep. 354) it was held that a libelous charge made by the defendant against a person contained in a letter written and mailed in the State of Nebraska to a person in West Virginia was sufficient to render the defendant liable in the State of Nebraska for the offense. This is not an unconsidered holding, for the court stated that were it not for error in another respect an affirmance of the judgment would result.

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In Youmans v. Smith (153 N. Y. 214, 218) the court said: Printing a libel is regarded as a publication when possession of the printed matter is delivered with the expectation that it will be read by some third person, provided that result actually follows."

In American and English Encyclopædia of Law (Vol. 18 [2d ed.], p. 1013) it is stated in defining what constitutes a publication that "the general rule is that any communication by one person to another or others, of defamatory matter concerning a third person, or the doing of any act intended to result or which would naturally result in the exposure of the contents of the libel to any person other than the author, is a publication within the meaning of the term as used in the law of libel and slander."

"A person who sells or delivers libelous matter to another or others, or parts with the possession and custody of the same under circumstances which expose it to be read or seen by another or others, is chargeable with a publication thereof." (Id. p. 1014.)

"The sending to one person of a private letter containing matter defamatory of another, constitutes a publication, and it has been held that the mere depositing of a letter containing such matter in the post-office would be a publication of it,

though it never came to the hands of him for whom it was intended, if it came to those of any one else, because a wrongdoer is answerable for all the consequences of his acts." (Id. p. 1015.)

It will be found that Rex v. Burdett has received general acceptance as stating the common law on the question of what constitutes publication of a libel. Among other cases in which it was expressly followed is Giles v. State (6 Ga. 276).

In the draft of the Penal Code, prepared by Commissioners David Dudley Field, William Curtis Noyes and Alexander W. Bradford, dated March, 1864, and submitted for pubic examination and suggestion prior to revision by the commissioners, the following section was proposed:

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"§ 313. To sustain a charge of publishing a libel it is not needful that the words complained of should have been read by any person. It is enough that the accused knowingly parted with the immediate custody of the libel under circumstances which exposed it to be read by any other person than himself."

The note to this section gives as the authority for its provisions Giles v. State, in which the case of Rex v. Burdett was expressly approved and followed.

When, thereafter, under date of December, 1864, the commissioners submitted their proposed Penal Code to the consideration of the Legislature, section 313 remained unchanged save for the substitution of "another" for " any person in the 1st sentence. Section 245 of the Penal Code is in the precise language of the last proposed section 313. So that the real basis of the present Code provision as to the publication of a libel is Rex v. Burdett, and as we view it, that publication was complete when the libel was deposited in the post-office in New York city, directed to a third person and with the postage prepaid for its transmission to him.

Even if this were not so, we think the provision of section