Opinion oe the Court, by
Austin, J.This is an action to recover damages for personal injury. The defendants demurred to the complaint; the Chief Justice overruled the demurrer, and the defendants appealed to this Court.
The allegations of the complaint, in substance, are that the plaintiff, in 1864, wrote to W. L. Green a letter, which is quoted, being an apology for misstatements acknowledged therein to have been made to injure the said W. L. Green, and the firm of which he was a partner, in their business and reputation, and in which the writer says that he encloses a check for $300 to pay expenses in a suit for slander then pending against the writer, also to pay for 100 printed copies of the apology, should Mr. Green desire to print the same, in order to give him opportunity for circulating them to repair any injury which he might have suffered by what the writer had said or done.
*247And, further, the complaint alleges “that on the 7th day of June, 1884, the defendants, intending to injure the character, feelings and reputation of the plaintiff, did, without the knowledge or consent of the said W. L. Green, or of the plaintiff, wrongfully and injuriously print, publish and circulate, or cause to be printed, published and circulated, a large number, that is to say, several hundred copies of the said letter, and did so wrongfully and injuriously cause the said copies of the said letter to be distributed and delivered to divers residents of Honolulu, and other persons residing in this Kingdom.” All of which actions and doings by the defendants, the plaintiff alleges, were done in contravention of his private rights under the laws, and to the damage of the plaintiff to the amount of $50,000.
The first question to be considered is the nature of the action. The Chief Justice held that it is not and cannot be treated as an action for civil damages for a libel. On further examination of the complaint and the law, we think that, under our statute) the holding of the Chief Justice was error.
Our statute declares (Section 1, Penal Code) that “ a libel is a publication in writing, print, or by a picture, statue, sign, or a representation other than by words merely spoken, which directly tend to injure the fame, reputation or good name of another person, and to bring him into disgrace, abhorrence, odium, hatred, contempt or ridicule, or to cause him to be excluded from society.” Sec. 5 declares, “In every prosecution for writing or publishing a libel, the defendant may give in evidence, in his defense upon the trial, the truth of the matter contained in the publication charged to be libelous ; provided, however, that such evidence shall not be deemed a justification, unless it shall be further made to appear on the trial that the matter was published with good motives, and for justifiable ends.”
The principle that in criminal prosecutions for a libel the truth is no defense, unless published with good motives and for justifiable ends, is now substantially matter of statute in England (6 and 7 Viet.: See Odgers on Libel and Slander, 390) and is almost universally the law in America by statute, or constitution, or decision.
Prior to the statute of Victoria in England, since the reign of *248James I, the truth was no justification in a criminal case., 2 Kent, 19.
But in civil cases for libel or slander, for over a hundred years, the law has been settled everywhere that the truth, when pleaded and proved, is a defense, whether the damages claimed are general or special, and however malicious the publication may have been.
See Kent, pp. 19 and 25; Odgers, pp. 169 and 289.
The reason of the distinction is apparent. Criminal punishment is attached to libel because it is believed to tend to a breach of the peace. Slander has never been so punished, because from its comparatively ephemeral nature it was held not to endanger such a breach. In civil actions for a libel, as the very action brought shows that no breach of the peace is likely or intended, the truth is a defense. 2 Kent, pp. 16 and 19.
In actions for civil damages for a libel, in Chitty and the well-settled English precedents, the allegations are that the libel is false.
In the pi’oofs at the trial, however, falsity need not be first shown, though averred, but truth comes in as a defense, and properly the averment of falsity should not be required, nor is it required here.
Odgers, p. 169.
Our statute defines a libel to be a publication in writing, etc., which directly tends to injure the fame, reputation or good name of another person, and to bring him into disgrace, etc.
It is libel if it tends to disgrace a person, and to injure him in either of the particulars named. Proof of injury in all these respects is not necessary, nor need it be alleged.
The allegation in the case at bar is of injury to the character, the feelings and the reputation of the plaintiff. The publication, as quoted in the complaint, is manifestly libelous in its nature, and the time and manner of its publication, as averred, after twenty years of silence, against a merchant, a private citizen, made it libel, punishable under our statute, whether true or false.
The complaint positively affirms that the article published is true, but the other statements alleged, if taken as true, show libel of which defendants might be convicted on indictment. The de*249fendants have the benefit of the allegations in the complaint as though written in the answer; and upon these and upon ail the facts set forth, there can be no recovery in this action unless we overturn the well-settled authorities of a hundred years. Whether published matter which is counted on is a libel depends upon its nature, and not upon the kind of action in which it is set forth or upon its truth or falsehood.
It is also held that an injunction to restrain the publication of a libel will not lie except after verdict of a jury declaring the publication to be libelous.
Odgers, pages 13 and 16, and cases there cited.
If this action, therefore, were brought against the defendants to . restrain the further publication of what manifestly appears in itself to be a libel, it could not on that ground prevail; but it may be, under the authorities quoted by the Chief Justice, and by reason of the plaintiff’s property in the substance of the writing, as its author, that the defendants having it in hand, however obtained, might because of such property be restrained from its further publication.
The publication, however, being made, that act done, as we have shown, constitutes it a libel, and the damages thereby occurring are damages in consequence of a libel, and cannot be otherwise recovered for. Those damages cannot be severed, and classed partly as injuries by libel and partly by unauthorized publication of a private letter, which might have been enjoined.
For these reasons the decision below must be reversed and the demurrer sustained.