
    Erwin v. Sumrow.
    From Lincoln.
    Though from the publication of a libel unexplained, malice will be prima facie implied, yet as the act may be innocent, and in some cases justifiable, the circumstances under which it was done, should be left to a Jury. ■
    Action for a libel. The libel was found by the Defendant at his shop-door early in the morning : he carried it into the shop of a neighbour, Reinhardt, read enough of the paper to discover what it was, and handed it to Reinhardt, who read it. Defendant then proposed to burn the libel; but this was objected to by Reinhardt, who said that the Plaintiff ought to have it, and observed that it should not remain in his shop, and asked the Defendant to take it away. The Defendant did carry it away, and placed it on the window of the shop of one Hoke, with intention, as he said, that it should be handed to Erwin, the Plaintiff. Hoke’s apprentice found the paper on the window shortly after it was placed there, read it, and kept it until evening, when he handed it to the Plaintiff. The window on which the libel was placed, was on the street, and the paper was exposed to the view of all persons passing. Defendant’s counsel contended, that if Sumrow placed the libel in the window with intention that it should be handed to Erwin, and not with a view of making it public, he was not guilty; but Nor-wood, Judge, before whom the cause was tried, charged the Jury, that a person being in possession of a libel, and knowing it to be such, was bound to take care that the contents of it did not become known and public by bis conduct ; that placing the libel in Hoke’s window was a publication; and that when a publication was proved, the law implied malice, and this implication would remain until removed by sufficient evidence. There was a verdict for the Plaintiff, and a motion for a new trial: new trial refused judgment, and appeal.
    
      Wilson for the appellant,
    cited 9 Co. 59 — 4 Burr. 458— 4 Mass. Rep. 169.
    
      Jl. Henderson, contra,
    
    relied on 5 Co. 126 — 2 Bl. Rep. 1038 — 1 Term. R. 111 — 4 Ibid. 127.
    
   Tayror, Chief-Justice,

delivered the opinion of the Court:

The essence of the charge in the declaration, consists in the malice of the publication, and the intent to defame the Plaintiff; and although from the publication of a libel unexplained, malice will be prima fade implied, yet, as the act may be innocent, and in some cases justifiable, the circumstances under which.it was done, were proper to have been left to the Jury. -It is the same, in principle, with an action of slander, where the Defendant may give in evidence, the manner and occasion of speaking the words, and repel, if he can, the implication of malice arising from utterance. If the Defendant could satisfy the Jury that the paper was left in Hoke’s window with an innocent intention, it would have explained what otherwise wears the appearance of a malicious publication. There ought to be a new trial.  