Page:Harvard Law Review Volume 12.djvu/77

57 NOTES. S7 that the defendant was not charged with the receipt or safe-keeping of the fees, but was rather expressly forbidden by the constitution to receive them, and therefore was not within the description of the statute. SulHvan, J., dissenting, contended that as in a civil action by the State the defend- ant would be estopped to deny that the money belonged to the State, he would be estopped in like manner in a criminal action. It is difficult to see how, in a civil action by the State to recover the money, there could be any application of the doctrine of estoppel. In collecting the fees the auditor was not the State's agent ; he only as- sumed to act as such. At the time of the conversion, then, the money was not the property of the State, and the latter could lay claim to it only by ratifying the collection by the defendant. The civil action itself could be said to be such ratification, and the defendant could not then deny, or, lo speak very loosely, would be estopped to deny, that- the money be^ longed to the State. But this is a principle of ratification ; there is no ground for estoppel in any true sense of the word. How can the defendant be said to have made a representation to the State which the State acted upon? And so in the present criminal action; there was no embezzle- ment of the State's funds, because at the time of the conversion the money was not the property of the State. It might become the property of the State by ratification, but the conversion could not be made a crime by the ratification. To resort to any doctrine of estoppel whose essential elements seem to be absent would overturn all sound principles of statu- tory construction, and introduce a fiction dangerous to the criminal law. Libel Per Se. — What manner of publication will constitute an injury without more damage is always a difficult question for the court. The general rules are clear and unquestioned, but their application to the par- ticular case must depend upon personal opinion and judicial policy. For this reason the decisions are often open to public criticism. A late instance is the case of Ga^es v. iV. V. Recorder Co. (New York Law Journal, March lo, 1898), in the present term of the New York Court of Appeals. The defendant company falsely published of the plaintiff, who had been lately married to a General Gates, "The General's bride is a dashing blonde, said to have been a concert-hall singer and dancer at Coney Island." In the argument great stress was laid upon the notori- ously disreputable character of the concert halls at Coney Island. The court held the publication libellous per se. Mr. Justice O'Brien and the Chief Justice dissented. The right to reputation is not simple, but highly complex and technical. The action based upon this right, developed in the ecclesiastical courts, took the form at common law of an action on the case, which requires an allegation of damage. Certain publications are, as the books say, a general damage by presumption of law ; in modern ideas, this means that the imputations are per se an injury without damage. In slander, words which impute to the plaintiff the commission of a crime, a loathsome disease, or which disparage him in his office, trade, or profession, are by early judicial legislation actionable per se. The liability in libel is broader ; vilification, or whatever reasonably brings a man into hatred, ridicule, or contempt, is libellous per se. For false publications not defamatory per se an action on the case always lies if damage is shown. 8