
    Ebenezer Sproul vs. Eben F. Pillsbury.
    Penobscot.
    Opinion December 30, 1880.
    
      Libel. Pleadings.
    
    In a declaration for publishing a libelous article-in a newspaper it is not necessary to aver that the publication was made to divers persons or: to any third person; it is enough to aver that the libel was printed and published in a newspaper.
    
      On EXCEPTIONS.
    Case, to recover damages for an alleged libel. The defendant demurred to the declaration. The court overruled: the demurrer : and held the declaration good.
    The opinion states the case.
    
      Barker, Vbse and Barker, for the plaintiff,
    cited: Bailey• v. Myriclc, 50 Maine, 181.
    
      Mace and Robinson and J. II. Potter., for the defendant.
    i In civil suits for libel the gist of the action is publication. It ; is the material part and must be alleged. . Publication , is an ¡.ambiguous term, > employed sometimes to signify the matter ; published, sometimes the act of publishing only, and sometimes t an act of publishing such as may subject the publisher to legal :liability. Townshend on Slander and Libel, § 96, p. 137.
    The declaration in either count merely states that defendant ; printed and published the libel in a newspaper, called the Daily Standard. The word "published” as here used is synonomous with the word "printed” or inserted, and simply means the act ■ of "putting in print,” "inserting in the paper.”
    No possible form of words can confer a right of action, for . slander or libel unless there has been a publication to some third person. Townshend on Slander and Libel, § 75, p. 138; 2 Starkie on Libel, citing 1 W. Saund. 132, note 2; Phillips v. ■ Jansen, 2 Esp. 624; Rex. v. Wegener, 2 Starkie, case 245; Weir v. IIoss, 6 Alabama, 881; 3 Yeaton, Penn. 128.
    
      The precedents require it to be stated that the publication was to divers and sundry third persons. Oliver’s Free. New Edition, pages 606, 608.
    Writing and publishing (printing) a libel and publishing (reading) it only to the person libeled does not subject the writer and such publisher to a civil action for damage. Phillips v. Jansen, 2 Esp. 624; Delacroix v. Thevenot, 2 Starkie, case 63; Fon-ville v. JVease, Dudley (S. C.) 303; Fix v. Payne, 5 Mod. 165.
    The above rule is of substance and not merely of form.
   Peters, J.

Such an averment is unnecessary. None of the forms in either civil or criminal cases require it. To publish is to make public. A publisher is one who makes a thing publicly known. Had the allegation been merely that the defendant "printed” a libel, that would not have been enough. But to aver that a defendant " published” a libel, does declare that he circulated it or caused it to be circulated "among divers and sundry persons.” The degree of notoriety given to the publication is matter of proof and not of pleading. Com. v. Blanding, 3 Pick. 304; Com. v. Varney, 10 Cush. 402; State v. Barnes, 32 Maine, 530 ; Rex. v. Burdett, 4 Barn, and Ald. 95 ; Bailey v. Myrick, 50 Maine, 171.

Exceptions overruled.

AppletoN,. C. J., WaltoN, DaNeorth, YirgiN and Libbey,, JJ., concurred.  