UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A TREATISE ON THE WRONGS CALLED SLANDER AND LIBEL AND ON THE REMEDY BY CIVIL ACTION F(3R THOSE WRONGS, TO WHICH LS ADDED IN THIS EDITION A CHAPTER ON MALICIOUS PROSECUTION. By JOHN TOWNSHEND, THIRD EDITION NEW YORK : BAKER, VOORHIS & CO., LAW PUBLISHERS, 66 NASSAU STREET. 1877. Entered, according to Act of Congress, in the year eighteen hundred and seventy-seven, by JOHN TOWNSHEND, In the office of the Librarian of Congress, at Washington. '(,(.t,7 s Daerb k G0DW15, Printers, No. 25 Park Row, N. Y. PREFACE TO THE THIRD EDITION. In introducing a third edition of the following essay, I desire to return my unfeigned thanks for the many flattering notices of pre- vious editions. One kind friend expressed regret that so much labor had been bestowed in the endeavor to treat scientifically a subject which does not admit of scientific treatment, and another described my text as not so much an exposition of the law as it is as of the law as it probably will be. In reference to these remarks, I hope and believe my labor has not been altogether fruitless, and the care taken in every instance to distinguish my suggestion from the received rule of law, will prevent the reader confounding the one with the other. It is gratifying to me to find that many of my sug- gestions have been legitimized by judicial sanction. I disclaim innovation ; my aim has been to elicit the true rule of decision on some leading points in the law of libel, and present them with more distinctness than had been theretofore attempted. Thus among other things, I have endeavored to demonstrate : I. The gist of an action for slander or libel is the pecuniary injury. II. The malice necessary to maintain an action for slander or libel is only the absence of a legal excuse for makino- the publication. III. The phrases malice in fact and malice in law do not mean different kinds of malice, but describe only different kinds of proof. U7/fl PREFACE. IV. The existence of a distinction between language concerning a person and language concerning a thing, and in what the distinction consists. V. "Slander of title," so called, is within the class of language concerning a thing. VI. The right to give what is termed "a character to a servant," does not arise out of any relation of master and servant, but out of the general right to communicate one's belief, in a bona fide desire to protect one's own or another's rights. VII. The right of "criticism" is within the class of language concerning a thing. VIII. Malicious prosecution is the publication of defamatory lan- guage in a court of justice. The present edition differs from the preceding in containing sev- eral hundred additional references to decisions in the American,, English, Irish, Scotch, Canadian and Australian reports, and also in the addition of a chapter upon "Malicious Prosecution." The numbering of the sections corresponds with previous editions. A strenuous effort has been made to secure accuracy in the citation of authorities, and while it is known that many errors have occurred, it is believed that more than ordinary correctness has been attained. The references to Holt on Libel, are to the American edition, and as the third edition of Starkie on Slander, by Folkard, has not been reproduced in this country, the references to Starkie on Slander are to the second American edition by Wendell. JOHN TOWNSHEND. Bennett Building, / New York, July, 1S77. |i' CONTENTS. Preface 3 List of works on the subject of libel in addition to those referred to in the NOTES . II Table of references to reports without the name of the case prefixed . . . i 7 Table of works referred to, exclusive of the REPORTS 19 Table of cases cited 27 PART I. THE LAW OF SLANDER AND LIBEL. CHAPTER I. INTRODUCTORY. Language as a means of effecting injury- — Slander — Libel — Defama- tion—Redress—The law of libel— Object in view— Division of subject — Attempts to define libel ..... 6i CHAPTER n. how one may AFFECT ANOTHER BY LANGUAGE. Language can have no effect unless published— It must be true or false, commendatory or discommendatory— Must concern a person or thing— Its effect, direct or indirect, or both— Reputation . 82 CONTENTS. CHAPTER III. RIGHTS ; DUTIES ; WRONGS ; REMEDIES. Description of rights and duties — Wrongs, rights and duties, unde- finable — What determines of any act if it be a wrong — Remedies — Injunction — Original writs ..... 87 CHAPTER IV. WHAT IS THE GIST OF THE ACTION FOR SLANDER OR LIBEL. History is silent as to the introduction of the action for slander — Hy- pothesis necessary- — How the law protects reputation — Fiction — Pecuniary loss the gist of the actions for slander and libel . 100 CHAPTER V. WRONGFUL ACTS. ELEMENTS OF A WRONG. Wrongful acts — Liability — Presumptions of law — Questions of law and fact — Essential acts in slander and libel — Defamatory — Falsity — Voluntary— Involuntary — Intention — Malice . .114 CHAPTER VI. PUBLICATION. PUBLISHER. A publication is necessary — Meaning of the term publication— The language published must be understood — The publication may be orally or in writing — What amounts to an oral and what to a written publication — Publication of effig}'— Requisites of an oral publication — Requisites of a written publication — Time of publication — Place of publication— Who is a publisher — Republi- cation and repetition, distinction between — Joint publication — Liability for publications — Voluntary and involuntary publica- tions — Liability of principal and agent— Newspaper publisher- Bookseller ........ 144 CONTENTS. CHAPTER VII. CONSTRUCTION OF LANGUAGE. Actionable quality of language dependent upon its construction — All language ambiguous or unambiguous — Difficult to determine what is and what is not ambiguous — Points upon which ambigu- ity may arise — Causes of ambiguity — Ambiguity, how explained — Different effects of language concerning a person and of language concerning a thing — Materiality of questions, what person or thing affected, and whether the person is affected as an individual merely, or in some acquired capacity — Principles of construction ; before verdict ; after verdict — Examples of construction — Divisi- ble matter ........ 169 CHAPTER VIII. WHAT LANGUAGE IS ACTIONABLE. Language must be such as does or does not occasion damage — What is meant by actionable per se, and actionable by reason of special damage — What language concerning a person as such, published orally, is actionable per se — What language concerning a person as such, published in writing, is actionable per se — What language concerning one in an acquired capacity, is actionable /t'r j'(? — What language concerning a person is actionable by reason of special damage — What language concerning the affairs of a person, his property or his title thereto, is actionable .... 216 CHAPTER IX. DEFENSES. Privileged publications generally — Repetition — Truth— Legislative pro- ceedings and reports thereof — Judicial proceedings — Parties to pro- ceedings — Counsel — Witnesses — Judges — Grand jurors — Reports of judicial proceedings — Quasi judicial proceedings — Church disci- pline — Seeking advice or redress other than judicially — Giving in- formation or advice generally — Attorney and client — Master and servant — Candidates for office or employment — Insanity — Drunk- enness — Infancy — Accord and satisfaction — Previous recovery — Apolog)^ — Freedom of the Press — Criticism. . . . 347 CONTENTS. CHAPTER X. CORPORATIONS. Corporations are legal persons — Their rights and duties assimilated to those of natural persons — Can act only through agents — j\Iay carry on business, sue and be sued, and are liable for injuries com- mitted by agents — Corporations may have a reputation — Language concerning corporations — Actions by corporations for libel — Cor- porations cannot be guilty of slander — May be guilty of libel . 501 PART II. REMEDY BY ACTION FOR THE WRONGS CALLED SLANDER AND LIBEL. CHAPTER XI. PROCEEDINGS IN AN ACTION. Action, how commenced — Within what time — In what court — Attach- ment — Holding defendant to bail — Execution against the per- son — Security for costs — ConsoHdating actions — Place of trial — Inspection and discovery — Assessment of damages where no an- swer interposed — Mode of trial— Struck jury — Refusing to try — Compromise — Right to begin — Address of counsel — Reading libel to jur}' — Evidence for plaintiff— Abandonment of one of several causes of action or defense — Province of the court and jury — Damages — Verdict — New trial — Costs — Staying proceedings until costs of former action paid ...... 509 CHAPTER XII. PARTIES. Question as to parties anticipated— Action by alien— Outlaw— Rebel — Executors or administrators — Married woman — Husband and wife— Partners— General rule as to joinder— Action against hus- band and wife — Contribution ..... 54^ CONTEr.TS. CHAPTER XIII. PLEADING. THE COMPLAINT. General requisites of a complaint — Complaint for language concerning a person only — Inducement — Colloquium — Publication — Matter published — Innuendo — Special damage — Several counts — Supple- mental complaint . . . , . . -553 CHAPTER XIV. PLEADING. ANSWER. DEMURRER. The answer corresponds to plea — What it must contain — Plea to part of a count — Answer of justification must give color, show a lawful occasion, and deny malice — Several answers — Defense of truth must be pleaded — How pleaded — Where the charge is general — Where the charge is specific — Certainty in statement of facts — Answer of justification bad in part, bad altogether — Mitigating circumstances — Demurrer — Counter-claim .... 599 CHAPTER XV. VARIANCE. AMENDMENT. Allegation of pleadings and proof should correspond — Variance in New |York — General rule as to variance — Immaterial variance — Material variance — Amendment ..... 620 CHAPTER XVI. EVIDENCE FOR PLAINTIFF. Proof of publication; of oral publication; of publication in writing; of defendant's liability — Opinion of witnesses as to meaning — Proof of inducement ; of plaintiff's good reputation ; of malice ; to aggravate damages — Falsehood not evidence of malice — Other publications by defendant ; subsequent publications ; publication after commencement of action — Defendant's ill-will to plaintiff — Ill-will to plaintiff of persons other than the defendant — The pub- lication itself evidence of malice — Attempted justification an ag- gravation — Evidence in reply ..... 638 lO CONTENTS. CHAPTER XVII. EVIDENCE FOR DEFENDANT. What evidence is admissible depends upon what plea or answer is interposed — What may be proved under the general issue — Evi- dence to support a justification — Plaintiffs reputation in issue — Inquir}^ limited to plaintiff's general reputation, and to his reputa- tion prior to the publication complained of — Truth in mitigation —Conduct of plaintiff leading to belief in truth— Report or sus- picion of plaintiff's guilt in mitigation — Plaintiff's standing and condition in society — Prior or subsequent declarations of defend- ant — Heat and passion — Previous pubhcations by the plaintiff — Controversies between plaintiff and defendant prior to the publica- tion — Circumstances not admissible in mitigation . . . 670 PART III. MALICIOUS PROSECUTION. CHAPTER XVIII. Right of appeal to criminal tribunal — What is malicious prosecution — Distinction between malicious prosecution and false imprisonment — Essentials to a cause of action — Prosecution commenced — Ter- minated in favor of plaintiff — Conviction— Reasonable and proba- ble cause — Advice of counsel — Not guilt or innocence, but knowl- edge and belief of prosecutor, the question — Probable cause a question of law — Malice — Parties — Pleadings . . . 697 Appendix Swadling 7'. Tarpley King V. Townsend Foote V. Rowley . Martinere v. Mackay 733 733 739 741 742 Index . . • . . . . . . . 747 WORKS OF REFERENCE. [For the convenience of those who may desire further information on the sub- ject of Slander and Libel, we subjoin the following list of publications, to which reference may be made. ] Treatise on Libel. By Sir Thomas Mallett, Judge of the Queen's Bench, England. (Referred to by Finnerty when brought up for judgment.) An Essay on the Liberty of the Press, chiefly as it respects personal slander. By Bishop Hayter. [In Marvin's Legal Bibliography, a treatise with a precisely similar title is attributed to John Asgill. I know not if it is the same work ] "Another Letter to Mr. Almon on Matters of Libel." — "The position that it is not material whether the libel be true or false, or whether the person that made it be of good or ill fame, is a proposition of truth and the provision of a sanctuary for weak and wicked men, who may be employed as ministers or judges." The People. Dedicated to Sir Francis Burdett, Bart. By an unlettered man. Printed for the Author, and sold by M. Jones, 5 Newgate Street, London. 1811. [This work professes to contain an analysis of Pitt's system, and to show the great danger of the theory with regard to libels. To trace that theory to its origin, and that it is directly contrary to the re- formed religion and the New Testament.] Law of Libel (On the), with strictures on the self-styled Constitutional Society. By John Hunt. 8vo. London. 1823. Erskine's Speech in the case of the King v. Williams, for publishing Paine's Age of Reason; with Mr. Kyd's reply and Lord Kenyon's charge to the Jury. — Trials, vol. xviii, N. V. State Library. The Englishman's Right; or, a Dialogue between a Barrister at Law and a Juryman, concerning the antiquity, use, power, and duty of Jurors, by the Law of England. Extract in appendix to trial of John Lambert for libel. — Trials, vol. xv, N. V. State Library. Juryman's Touchstone (The); or, A full refutation of Lord ^L1nsfield's opinion in Crown Libels. 8vo. London, 1784. A Letter on Libels and Warrants. (Referred to, i Biographical Anecdotes, by Almon, p. 226.) 12 WORKS OF REFERENCE. Massey's History of England. Vol. 2. As to Dowdeswell'S Bill to make juries judges of the law in libel cases. Speech of Sir Robert Peel, in vindication of the House of Commons claim to publish its proceedings. London, 1837. A Letter to Lord Langdale on the recent proceedings of the House of Commons on the subject of privilege. By Thomas Pemberton, M. P. 2d ed. London, 1837. Observations on the Rights and Duties of Juries in trials for Libels, with remarks on the origin and nature of the Law of Libels. By J. Towers. 8vo, Dublin, 1785. Free Speech, An oration by Daniel Webster, A. D. 1814. Lecture on the Law of Libel. By James T. Brady, Esq. An Apology for the Freedom of the Press. By the Rev. Mr. Robert Hall. London, 1821. BOLLAN on the RIGHT OF EVERY MAN TO THINK AND SPEAK FREELY. (Referred to Quincy's Massachusetts Reports, p. 270.) Of Slander and Flattery. A sermon by Jeremy Taylor. Erskine's Speeches on subjects connected with the Liberty of the Press. •"Discussion of the Law of Libel as at present received, in which its authenticity is examined ; with incidental observations on the legal effect of Precedent and Authority." Pamphlet. London, 1785. Ascribed to J. W. Adair. Skene on Crimes. 25th chapter of title 2— Of Famous Libels and Sedi- tious Speeches. Tract on Libel. By Lord Bacon. Mentioned in the memoirs of T. Hol- lis, p. 169. [It is referred to in a note to T. Holt White's edition of Milton's Areb- pagitica, and the annotator adds : " My inquiries after this posthu- mous publication have been fruitless." Query. If the same tract as one entitled " Certain observations upon a Libel. By Lord Bacon, A. D. 1592," to be found in several editions of Bacon's works.] Lord Sidmouth's Circular respecting libels. Earl Gray's Speech on the above circular. House of Lords, 1817. Tindal's Continuation of Rapin's Historj^ of England as to Pulteney's Bill to prohibit the circulation of unlicensed newspapers. Domestic Annals of Scotland. By Chambers. Vol. i, p. 126. DoDSLEY's Annual Register. A. D. 1792. Mr. Stammer's Pamphlet on the case of Rex v. D'Israeli. [I have been unable to find a copy. It is referred to i Townsend's Modern State Trials, 260.] Bacon's Abridgment, tit. Slander, Courts Ecclesiastical. WORKS OF REFERENXE. I5 Sheppard's Abridgment, tit. Libel. Blue Laws of Connecticut. Otto Thesaurus. Vols. 3, 4. Coote's Ecclesiastical Courts, tit. Defamation. Burn's Ecclesiastical Law, tit. Defamation. Quincy's Massachusetts Reports, A. D. 1761 to A. D. 1777. See pages 260, 267, 270, 278, 309 — Charge as to law of libel. Page 245 — As to right of the court to commit for libel. Page 561— Discussion on the right of juries to judge of law and fact. ESSAI HiSTORlQUE SUR LA LiBERTE d'ecrere chez les ancienes et au moyen age, sur la liberte de la press, &c., &c. Par G. Peignot. Encyclopedia Britannica, supplement; art. Liberty of the Press. Jacob's Law Dictionary, titles Justification, Court of Piepowders, Copia Libelli Deliberanda, Scandal. Viner's Abridgment, tit. Good Behaviour. McDouGALL's Case, 3 Documentary History of New York, 534; cited 10 Abbott's Practice Reports, 170; and see Id. p. 169. Freedom of Wit and Humor. By Lord Shaftesbury, A. D. 1709. Considerations on the Law of Libel as relating to publications on the subject of religion. By John Search. Ridgway, 1833. [This pamphlet is referred to 1 1 London Law Magazine, 444. John Search is a fictitious name.] The Craftsman, No. 281, vol. viii, p. 213. [Contains the reasons why the Commons would not agree to the clause which revived the old printing act, delivered at a conference with the Lords, 1695.] A Digest of the Law concerning Libels, containing all the resolutions in the books on the subject, and many MS. cases, &c., by a gentleman of the Inner Temple. 4to. London, 1765. To which is added a supple- ment containing considerable additions, by John Rayner, 1770. Reasons Against the Intended Bill for laying restraint on the Liberty of the Press. London, 1792. Essay on the Liberty of the Press. Richmond, 1803. London Quarterly Review. April, 1865. Libel and freedom of the Press. EdinburG Review. Review of George on Libel. Abuses of the Press, vol. 22. Review of Holt on Libel, 2d edition, vol. 27. French Law of libel, vol. 32. Libels on Christianity, vol. 58. Westminster Review. Review of Mence on Libel, vol. 3. 14 WORKS OF REFERENCE. London Law Magazine. Application of Libel, vol. 2. The Law of Libel, vol. II. Communicating slanderous words in answer to inquiries, vol. 34. Presumptions of law and presumptive evidence, vol. 6. The province of the judge distinguished from the province of the jury, vol. 12. Solicitor's Journal. The Law of Libel, vol. 8. Libels on Professional Men, vol. 9. Law of Libel, vol. 10. City Hall Reporter. Slander, p. 160. Cornhill Magazine, January, 1867. Eclectic Review, March, 1867, Knickerbocker Magazine. Scandal and Envy, vol. 33. Christian Examiner, vols. 16, 17. Christian Discipline, vol. 3. Western Law Journal, vol. 2, N. S. American Encyclopedia, art. Libel. American Law Journal (Hall, Baltimore), vol. i. Commonwealth v. Duane, Commonwealth v. Cobbett, State of Marj^land v. Irvine, Carr v. Hood, Van Vechten v. Hopkins. Vol. 3. The People v. Frothingham, Libel on General Hamilton. Vol. 4. Rex v. Creavy. American Quarterly Review, vol. 5 (A. D. 1829), contains a Review of Holt's Law of Libel. American Lancet. Report of Libel Trial in New York, A. D. 1831. Trial of John Stockdale for a libel on the House of Commons, in the Court of King's Bench, in 1789 — with an argument in support of the Rights of Juries — London, 1790. The Trial of Theophilus Swift for a libel on the Fellows of the Dublin University, and the Trial of the Rev. Dr. BURROWS for a libel on Theo- philus Swift, published together with notes by Theophilus Swift. [The result of these trials was that both Swift and Burrows found themselves inmates of the same jail, each for libeling the other. See Barrington's Memoirs.] Report of the Maharaj Libel Case, Bombay, 1862, as to which see West- minster Review, January, 1864, p. 65 Amer. Reprint. Pamphlet Trials : of Joseph T. Buckingham for libel on John N. Maffit ; of David Lee Childs for libel on John Keys ; of Daniel Isaac Eaton for libel entitled " Politics for the People, or Hogs-wash; " of Dr. Newman; of Aston Williams ; of Francis S. Beattie. Among the Papyri unearthed from the ruins of Herculaneum is an essay on Freedom of Speech, by Philodemus. It forms part of a work entitled "PhILODEMI rifpt 'VnTogLKi/q, ex Herculanensi Papyro restitutuit, Latine vertit, et Dissertationibus auxit." [E. Gros, Parisiis : 1840. Publisher.] WORKS OF REFERENCE. 15 Observations upon the Mode of prosecuting for libel according to the laws of England. By Borthwick. London, 1830. [This is not the work referred to in the following pages as Borthwick on Libel] Memorials of London, and London Life in the 13th, 14th and 15th Cen- turies, refers to conviction for making a false accusation, and a protection from the king alleged (12 Richard II, A. D. 1388). Punishment of the Pillory and Whetstone for circulating lies (48 Edward III, A. D. 1371). Punishment of the Thewe inflicted upon a common scold (49 Edward III, A. D. 1373). Punishment for practicing the art of magic, and for defama- tion (3 Richard III, A. D. 1348). Punishment of imprisonment for re- viling the Mayor (6 Richard II, A. D. 1352.) Considerations on the respective rights of judge and jury, particularly upon trials for libels occasioned by an expected motion of the Hon. C. J. Fox. London, 2d ed. 1791. John Bowles. Two Letters to the Hon, C. J. Fox, occasioned by his late motion in the House of Commons, respecting libels, and suggesting the alarming con- sequences likely to ensue, if the bill now before the legislature should pass into a law. By John Bowles. London, 1792. Dialogue between a country farmer and a juryman, on the subject of libels. London, 1770. Parliamentary Debates on the statute (32 Geo. III. ch. 60) for removing doubts respecting the functions of juries in cases of libel. London. 1792. THE Whole Proceedings on the trial, &c., of Thomas Paine for a libel entitled "The Rights of Man." London, 1792. Sandford's Penal Codes of Europe, pp. 70, 100, 105, 106, 116. Prus- sian Code, ch. 13, part II. Verietzungen der Ehre, translated ot Slander and Libel. A Case of Libel. By Thomas Moore. COLLARD Royer. Discussion upon the Law of the Press. Haydn's Dictionary of Dates, tit. Trials. Report of the Trial of Dr. Samuel Thompson, founder of the Thomp- sonian practice, for libel in warning the public against the imposition of Paine D. Badger as a Thompsonian physician. Boston. Cooley on Constitutional Construction. Chapter xii. "Liberty of Speech and of the Press." THE LAW relating to Literature and Art, the law relating to Newspapers, and the law of Libel. By John Shortt, LL.B. London, 1871. THE Medical Practitioner's Legal Guide, London. 1870. [Chapter v, p. 43. Character; Defamation.] THE Law of Literature. By James Appleton Morgan. New York, 1875. 1 6 WORKS OF REFERENCE. 12 Southern Quarterly Review, 236, A. D. 1847. Review of Cooper's Book on libel, and of the case of The People v. Croswell. The Trial of Berkley v. Fraser, 15 Eraser's Magazine, 100. The Three Trials of \Vm. Hone. 6 American Law Review, 594; review of Townshend on Slander and Libel, by N. St. John Green. 7 American Law Review, 652, art. The Theory of Torts. Oliver Wen- dell Holmes, Jr. Calhoun's Reports on the attempt to circulate through the mails inflamma- tor>' appeals, &c., made to the United States Senate, February 4, 1836. Libels on the Dead. 9 Irish Law Times, 411, from the London Law Times. Defamation. 9 Albany Law Journal, 118, 135. Chapters in the History of Popular Progress, chiefly in relation to the Free- dom of the Press and Trial by Jury. By James Routledge. London, 1876. Liberty of Opinion, in relation to Blasphemous Libels. By W. D. Lewis, Esq., Q. C. ; Juridical Society Papers, vol. 2, p. 250. TABLE OF REFERENCES TO REPORTS, WITHOUT THE NAME OF THE CASE PREFIXED. [The references are to the page.] Abbott's Practice R„ 117. Aleyn, 198. American Leading Cases, 226, 237, 263, 524, 697, 706, 715, 716. American Rep., 208. Atkyn, 359. Barnewall & Adolphus, 135. Barnewall & Cresswell, 129, 130. Bingham, 331. Bligh, 517. Bosanquet & Puller, 479. Bridgman, 374. Brownlow, 198, 243, 374, 443. Bulstrode, 210. Burrow, 135. Caine's Reports, 151. Carthew, 183, 212. Clark & Finnelly, 129. Clayton, 120. Coke's Reports, 67, 165, 170, 177, 181, 187,235,353. Comberbach, 106. Cox's Criminal Cases, 481. Croke, Carolus, 145, 246, 560, 568, 570. Croke, Elizabeth, 147, 198, 231, 570, 621. Croke, Jacobus, 181, 198, 243, 246, 479, 570, 596. English Common Law Reports, 130. Freeman, 107, 301. Godbold, 198, 231. Goldsborough, 570. Hardress, 198. Hetley, 307. Hobart, 181, 198, 245. Holt's Reports, 249, 377. Howard's U. S., 105. Hurlstone & Coltman, 329. Hutton, 374. Jenkin's Century, 343. Johnson, 221. Keble, 249, 293. Levins, 65, 196. Lofft, 180. Lord Raymond, yy, 596. March, 177. Meeson & Welsby, 583. Modern, 159, 164, 226, 249, 29S, 30S, 359, 596. Monthly Law Reporter, 252, 476, 477. Moor, 165, 168, 187, 572. Moore, F., 353, 396. Neville & Manning, 673. Noy, 107, 570. Phillip's Ecclesiastical Cases, 106. Queen's Bench, 380. Rolle, 104, 129, 560, 562, 591, 607. Russell's Chancery Rep., 129. Salkeld, 196, 230, 377, 708. Saunders, Wm., 148, 149, 152, 428, 547. 573. 595- Sergeant & Rawle, 130. Siderfin, 62, 249, 262, 596. Strange, 73, 236. Style, 198, 256, 570, 573. Term Reports, 134, 595, 621. Ventris, 196, 280, 290, 596. Vernon, 518. Wendell, 292. Wilson, 359. Yelverton, 187, 226, 479. TABLE OF WORKS REFERRED TO, EXCLUSIVE OF THE REPORTS. [The references are to the page.] Abbe Galiani, The, 484. Andrews, Joseph, 65. American Encyclopedia, T]. Addison on Wrongs, 78. Adams' Equity, 96. Albany Law Journal, 105, 127, 141, 208, 408, 454. Addison on Contracts, 477. Austin's Lectures on Jurisprudence, 87, 92, 99, no, 124, 125, 127, 128, 129, 130, 133, 216. Anthon's Law Student, no. American Law Journal, 85. American Quarterly Review, 133. Areopagitica — a Plea for Unlicensed Printing, 481. Burke — Letter to his Son, 62. Blackstone's Commentaries, 63, 65, 73, 92, 107, 129, 1S7, 359, 360, 699. Bishop's Criminal Procedure, 161. Bishop on Criminal Law, 63, 104, 157. Bishop on Marriage and Divorce, 67. Bouvier's Law Dictionary, 63, 66, 'j'j, 129, 130, 136. Bacon's Abridgment, 64, 72, 106, 164, 168, 182, 246, 396, 443. Bacon's Introduction to his Reading on the Statute of Uses, 70. Bacon's Use of the Laws, 92. Bacon's Charge against Lumsden, no. Bacon's Maxims, 134, 135. Baron's War (The), 65. Bigelow's Leading Cases on the Law of Torts, 697. Bracton, 134. Broom's Commentaries, 72, 699. ' Broom's Maxims, 134. Bolingbroke, Lord, Letter of, 73. Burns' Ecclesiastical Law, 413, 443. 20 TABLE OF WORKS REFERRED TO. Burnt Njal, The Story of. 72. Blackwell's Tax Titles, 118. British Criminal Law, 396. British Quarterly Review, 412. Bancroft's History of the United States, 105. Borthwick on Libel, 73- 74. 103, 109, 127, 136, 161, 182, 183, 187, 219, 359, 360, 382, 405. Burrill's Law Dictionan,', "]•], 80, 129, 134. Burrill on Presumptive Evidence, 85, 118. Burton, 70. Blackwood's Magazine, 219. Book of Entries. 75. Barrington on Penal Statutes, 187. Bacon (Roger), Works of, 103. Bosworth's Anglo-Saxon Dictionary, 103. Bentham's Writings, 78. Bentham's Principles of Morals and Legislation, 124. Buller, N. P., 198, 326, 478. Cent. Law Journal, 97. Code of Procedure, New York, 510. 512, 513, 5 '7, 518. 544- 55o. 557, 599. 600, 601,615, 619, 620, 635. Code of Ohio, 542. Code of Remedial Justice, 557, 684. Contempts, Inquiry into Doctrine concerning, 408. Campbell's (Lord) Lives of the Chancellors, 72, 80, 95, 97, 119, I45' 376, 477. 517.550. Campbell's (Lord) Lives of the Chief Justices, 378,414, 530- Campbell's (Lord) Libel Act, 186. Code. Criminal, 80, 187. Capgrave's Chronicle of England, 64. Coke's Institutes, 65. Calender of State Papers, 65, 128. Chitty's General Practice, 72, 129. Chitty's Criminal Law, 698. Cushing's Manual, 375. Cousin, TJ. Court Rules, N. Y. 598. Constitution of United States, 377, 481. Comyn's Digest, 61, -]■], 137, 164, 181, 182, 219, 225, 232, 293, 316, 321. Cowen & Hill's Notes, 85. Chitty on Pleading, 92, 613. Cooke on Defamation, 132. 175, 264, 280, 318, 326, 369, 396, 580, 653. Doria & McCrea's Law of Bankruptcy, 511. Domat's Civil Law, 86, 167, 234, 380, 552. Dome Book of Alfred, The. 105, 265. Drewry on Injunctions, 95. Dugdale's Origines Juridicales, 100, TABLE OF WORKS REFERRED TO. 21 Disney's Ancient Laws against Immoralities, loo, 220. Doddridge's English Lawyer, 134. Doctor and Student, 134. Danver's Abridgment, 147. Danske Erobring, of England, &c., 66, 103. Dunlap's Admiralty Practice, 380. English Parliament, Ordinances of, 74. English Pleader, 75. English Record Commissioners' Publications, 100. Encyclopedia Britannica, 69, 73, 77- Ecclesiastical Commissioners' Report, 106. Ethica Christina, 103. Edinburgh Review, 80, 92, 97, 123, 234. Edwards on the Will, 124. Essai sur I'Histoire de la Civilization en Russie, 72. Finch's Law, 74. Forsyth's History of Trial by Jury. 103, 119, 120, 530. Fortescue, De Laudibus Legum Anglias, 103, 134. Foss' Judges of England, 145. Finlayson's Common Law Procedure Act, 556. Fourth Estate (The), 481. Federalist (The), 481. Eraser's Magazine, 405. George on Libel, 75, 11, 136. I37, 164. 165, 188, 263. Gurdon's History of Court Baron and Court Leet, 100. Greenleaf on Evidence, 180, 478, 538. Heineccius, 151. Howell's State Trials, 95, 128, 135. Hudson on the Star Chamber, 95. Hawkin's Pleas of the Crown, H, 98, 164, 173. 227. 396,408. Hilliardon Torts, 64, 78, 129, 152, 162, 164. Highmore on Bail, 98. Halliwell's Dictionary, 252, 579. Hallam's History of the Middle Ages, 103. Historical Law Tracts, 109. Hazard on the Will, 124, 125. Hale's History of the Common Law, 261. Hale's Pleas of the Crown, 129. Hare on Discovery, 646. Hazlett's Essay on Wills, I45- ,. Holt on Libel, 69, 73- 92, 100. 130, 141, U7. uS. ISL '54, I57. 159- i64. 166. 168, 173, 17s, 178, 179, 182, 187, 266, 277, 289, 405. 412. 481. Heard on Libel, 73> 105, 113, 161, 172. 189- 196. 207, 208, 215, 225, 229, 242, 250, 310, 476, 481, 539. Hume's History of England, 375. House of Lords, Journals of, 135. Institute, 67, 106, 127, 187, 244. 2 2 TABLE OF WORKS REFERRED TO. Jacob's Law Dict^onar^^ 62, 66, 67, 68, 104, 109. Jones on Libel, 137. Johnson's Institutes of the Civil Law of Spain, 100. Justinian Institutes, 64. Kent's Commentaries, 92, 136, 359, 482. Kerr on Receivers, 167. Locke on the Conduct of the Understanding, 134, 188. Liberty of the Press, Essay on, 480. Leigh's Nisi Prius, 263. Lewis on Authority in Matters of Opinion, 105, 234. London Gazette, 481. Libels, Digest of the Law concerning, 73. Life of Lord Eldon, 97. Life and Letters of Joseph Stor}-, 105. Life of Lord Hardwicke, 119. London Law Magazine, 108, 118. London Quarterly Review, 144, 145, 493, 521. Loft, Capel, Essay on Libels, 77. Lieber on Civil Liberty, 80, 93, 399. Lombard Saxon Laws, 100. Lappenburg's Historj^ of England, 103. Leges Gul. Conq., no. Lindley's Studies of Jurisprudence, 129, 135. Laws, see Statutes. London Times, 379. ' London Athenjeum, 128. Law Times, 384. London Law Reporter, 265. Mayne on Damages, 537, 539, 541, 595. Mirrour of Justices, 64. Milton, John, Areopagitica, 481. Mackenzie's Narrative, 74. May's Law and Practice in Parliament, 378. Maunder, 77. Monthly Law Reporter, New Series, 477. Mechanical Euclid, 80. Mence on Libel, 66, 79, 92, 100, 102, 105, 141, 480. Montford, Simon De, Miracles of, 65, 103. Minshai, or Guide into the Tongues, 77. Maine, Inquiry into the Origin of Legal Ideas, 87. Maine's Ancient Law, no. Michaelis' Commentary on the Law of Moses, 100. March on the Action of Slander, loi, 408. McNally, Criminal Evidence, no. Mill's Logic, 131, 183. Massachusetts, Sketches of Judicial History of, loi. Norske Folkes Historie, 66. TABLE OF WORKS REFERRED TO. 23 North British Review, 66. Nicholson, Prefat. ad. Leg. Anglo-Sax. 100. New York, Constitution of, 376, 482. Parry— Lord Campbeirs Libel Act, 186. Phillips on Copyright, 97. Pitcairn's Criminal Trials in Scotland, loi. Petit, Leges Attica, 100. Pascal's Letters, 103. Pomeroy, Introduction to Municipal Law, loi. Palgrave's Rise, &c., of the English Commonwealth, 103. Palgrave's History of Normandy and of England, 104. Popular Progress in England, 78, 8^, 119. Political Songs of England, 144, 145. Political Ballads, 119. Phillips on Evidence, 675. Pope's Satires, 65. Pall Mall Gazette, 380. Pamphlet Laws of New Jersey, 220. Parsons on Contract, 282. Parliamentary History, 359. Percy Anecdotes, 477. Price's Points of Practice, 513. Prussian Code, 265. Quarterly Law Magazine and Review, 414. Redfield on Wills, 265. Rae's Medical Jurisprudence, 476. Rastell's Entries, 151. Russell on Crimes, 77. Reeves' History of the Common Law, 98, 99, 103, 187. Rolles' Abridgment, 104, 181, 184, 229, 244, 246. Report of Criminal Law Commissioners, 530. Report of House of Lords on Libel, "](>, 108, 130, 359, 379. Report to House of Commons on Publication of Printed Papers, 378. Report on Leprosy, 261. Report of House of Lords on Contagious Diseases, 262. Robinson's Practice, 381, 699. Reading on the Statute Law, 411. Reg. Aberd., 64. Reg. Gen., 673- Ridley's Civil Law, 64, 65. Sedgwick on Damages, 538. Somers, Lord, on Grand Juries, 65. . Saunders on Pleading and Evidence, 225. Selwyn's Nisi Prius, 187, 360. Stephens' Ecclesiastical Statutes, 66, 106. State Trials, 119. State Papers, Calendar of, 65. 24 TABLE OF WORKS REFERRED TO. Stephens on Pleading, 98, 99, 103. Stephens' Commentaries on English Law, 481. Stephens' Criminal Law, 117, 118, 124, 128, 137, 139, 154. Sullivan's Lectures, 99. Stiernhook de Jure Vetusto Suconum, &c., 100. Saltern, De Antiq. Leg. Brit., 100. Sharswood's Blackstone's Commentaries, 104. Shaw's Digest, 454. Sheppard's Action on the case for Slander, 62, 562. Smith's Leading Cases, 316. Spence on Origin of Laws, 477. Spencer, 64. Shakespeare, 64, 265, 359, 477. Smith, Sidney, Elementary Sketches of Moral Philosophy, 126. Story on the Constitution, 481, 485. Story on Contracts, 282. Story on Agency, 501. Story on Equity Jurisprudence, 98. Swinburn on Wills, 265. Starkie on Evidence, 133, 147, 176, 325, 639. Starkie on Slander, 98, 100, 109, 122, 123, 129, 131, 145, 146, 147, 148, 150, 155. 157. 159' 163, 164, 168, 170, 176, 178, 182, 186, 187, 191, 195, 196, 198, 212, 219, 226, 229, 230, 232, 235, 236, 245, 246, 248, 249, 255, 263, 264, 280, 281, 283, 288, 312, 318, 327, 339, 357, 358, 359, 360, 368, 370, 373, 380, 400, 401, 408, 475, 511, 524, 539, 544, 549. 561, 563. 564. 568, 570. 571, 579. 589. 590. 607, 649. Shelley, Memoir of, 405. Solicitor's Journal, 408. Statutes of Arkansas, 80. California, 80. Illinois, 80. Iowa, 80. Georgia, 80. Maine, 80. Massachusetts, 603, 638. New York, 98, 220, 375, 377, 379, 390, 398, 399, 406, 482, 483, 502, 511, 513, 547, 548, 600, and see Code of Procedure. North Carolina, 371. England, 64, 67, 73, 98, 100, 106, 151, 192, 335, 357, 375. 378, 383. 478, 483, 510. 512, 514, 529, 544, 550. 551, 556, 570, 596, 619, 646, 647, 687. Hotchkiss' Digest, 80. Prince's Digest, 80. Cobb's Digest, 80. Thibaut, System of Pandekten Rechts, 88. Taylor on Evidence, 685. Trench, Dean, 80. TABLE OF WORKS REFERRED TO. 25 Trench's English Past and Present, 182. Tremayne's Pleas of the Crown, 104. Tacitus De Mor. Germ. 100. Thomas, History of Printing in America, loi, 358. Tomlin's Law Dictionary, 74. Tindal's History of England, 481. Trials per Pais, 634. at Nisi Prius, Introduction to the Law relative to, 63. Finnerty's, 78. David Lee Childs, 78, Gibbs V. Arthur, 408. Upper Canada Law Journal, N. S., 686. United States, Constitution of, 377, 481. Voorhies' Code, 603. Vidian's Entries, 62. Valentine's Corporation Manual, lor. Viner's Abridgment, 63, 98, 103, 106, 147, 151, 152, 174, 175, 180, 183, 190, 198, 205, 206, 207, 215, 235, 236, 238, 249, 252, 253, 254. 255, 256, 259, 291, 297, 298, 300, 301, 302, 303, 306, 308, 313, 343. 382, 391, 549. Weekly Packet of Advice from Rome, The, 95. Walford on Parties, 547. Wood's Civil Law, 62, 109, 116, 477. Wood's Institutes, 62, 109, 168, 179. Westminster Review, 72, 74, 80, 262. Whewell, The Mechanical Euclid, 80. Woodeson's Lectures, 80. Whittier, 481. Wilkin's Leges Anglo-Sa.x., 100. Wilkins' Political Ballads, 119. Willard's Equity Jurisprudence, 399. Wentworth's Pleadings, 266. Whateley's Logic, 234. Yates' Pleadings and Forms, 334, 613. ri^ rABLP: OF CASES. Abbey v. Lill, 639. Abendroth v. Boardley, ST)?. Abrahams v. Cooper, 69i». Abrams v. Fosbee, 230. Abrams v. Smith, 181, 355, 532, 618, 062, 672. Abshirei^. Cline, 254, 357, 3G3. Accident Transit Co. v. McCerren, 722. Acker v. McCulIough, 2f 0. Ackerman v. Jones, 3G8,404, 405,409, 667. Adams v. Kelly, 168. Adams v. Lawson, 263. 266, 270, 650, 656. Adams v. Meredew, 312. Adams v. Rankin, 251. Adams v. Rivers, 62. Adams v. Ward, 077. Adcoekw. Marsh, 250, 450, 661. Addington r. Allen, 539. Adkins v. Williams, 477, 664. Aefele v. Wright, 243. Ahern v. Maguire, 146, 465. Aier v. Frost, 237. Alcorn v. Hooker, 369. Alderman v. French, 353, 357, 603, 638, 668, 678, 679, 685, 687. Aldrich v. Brown, 181, 676. Aldrich v. Press Printing Co. 475, 502, 506. Alexander v. Alexander, 202, 221, 237, 238, 241. Alexander v. Angle, 280, 295, 563, 589. Alexander v. Harris, 687. Alexander v. N. East R. R. Co. 372, 506. Alexandria, The, 95. Alfred v. Farlow, 252, 539. Allardice v. Robertson, 397. Allcott ('. Barber, 281. Allen V. Crofoot, 159, 388, 389,418, 614. Allen V. Hillman, 207, 241, 257, 290. Allen V. London & S. W. R'way, 166. Allen V. Patterson, 192. Allen V. Perkins, 575, 654. Allensworth v. Coleman, 176, 189, 635, 660. Alleston v. Moor, 312. Alley V. Neely, 21 ;, 239, 641. Alpin V. Morton, 429, 547, 662. Alsop i>. Alsop, 191, 249, 325, 326. Alwin V. Hooker, SOS. Amann v. Damm, 148, 451. Ames V. Hazard, 602. Ames V. Stearns, 705. Amick V. O'Hara, 135. Anderson v. Hamilton, 397. Anderson v. Hill, 597. Anderson v. Stewart, 175, 591. Andres v. Koppeuheafer, 221, 225, 256, 265. Andres v. Wells, 167. Andrew v. N. Y. Bible, ttc. Soc. 104. Andrews v. Bird, 237. Andrews v. (Ihapman, 402. Andrews v. Jlmrav, 652. Andrews v. 'riHimi)Son, .5(1. Andrews v. Tliornlon, 301. Andrews v. Van Denser, 357, 365, 677, Andrews v. Wilson, 426. Andrews V. Woodmansee, 179, 181, 237, 523, 579. Angle V. Alexander, 294, 539. Ankin v. Westiall, 004. Anibal v. Hunter, 605. Annison w. Blofield, 315. Anonymous, 190, 199, 233, 237, 239, 249, 250, 253, 254, 256, 259, 292, 297, 298, 303, 304, 308, 321, 323, 343, 550, 588, 589, 605, 635, 679, Anonymous v. Farm, 262. Anonymous v. Moore, 678, 685. Anthony v. Stephens, 678, 685, 692. Aon V. McNiel, 395. Apton 7K Penfold, 255. Archbold v. Sweet, 308, 528. Armentrout t>. Moranda, 78. Armitage v. Dunster, 621. Armstrong v, Jordan, 305. Armstrong v. Piersoii, 5b4. Arne v. Johnson, 186. Arnold v. Clifford, 552. Arnold v. Cost, 237. Arrington v. Jones, 357, 675. Artieta v. Artieta, 255, 688. Ashford v. Choate, 320, 341. Asliley »i. Bates, 519. Aslilev )'. Billington. 180. Ashley »'. Harrison, 63. 122, 328. Aspinwall v. Whitmore, 642. Astley V. Younge, 373, 384, 387, 389. Aston V. Blagrave, 312. Atkins V. Johnson, 552. Atkins V. Perrin, 341 Atkins V. Thornton, 542. Atkinson v. Congreve, 425, 450. Atkinson v. Down, 388. Atkinson v. Fosbrook, 514. Atkinson v. Hartley, 183, 258. Atkinson v. Raleigh, 729. Atkinson r. Reding, 238. Ati6. Bailey v. Dean, 66, 172, 337, 384, 541. Bailey, ex pur e, 524, 543, 650. Bailey v. Maynard, 214. Bailey v. Motrg, 281. Baker ". Bailey, 135. Baker v. Briggs, 541. Baker v. Hart, 406. Baker v. Lane, 514. Baker v. Morfue, 307. Baker /•. Pierce, 103, 183, 191, 196,198, 208, 219. Baker v. Pritchard, 646. Baker v. Sanderson, 539. Baker v. Swackhainer, 511. Baker v. Wilkinson. 647. Baker v. Young, 551, 626. Baldwin v. Elphinst >ne, 151, 569, 571. Baldwin r. Flower, 549. Baldwin >'. Hildretli, 568. Baldwin r. Soulc, 622, 664. Baldwin r. Weed. 709, 716. Ball r. 1 {ridges, lnu. liallard v. l.ockw..od. 127. Banbury .-. Duckwortli. 389. Banfield r. Lincoln, 23H. Bank of British N. .America v. Strong 384. Bank of L'. S. v. Owen.s, 90. Barbaud v. Ilookham, 422. Barber v. Bennett, 405. Barber c Dixon, 672. Barber v. Lassiter, 728. Barclay v. Thompson, 228. Baretto v. Pirie, 607. Barfield v. Britt. 674, 687. Barger v. Barger, 244, 526. Barhamv. Nethersall, 199, 237, 519, 582. Barbam's Case, 237. Barmund's Case, 324. Barnabas v. Traunter, 254. Barnard v. Whiting, 539. Barnes v. Bruddell, 324. Barnes v. Holloway, 512, 621. Barnes v. Hurd, 5.39. Barnes v. McCrate, 387. Barnes v. Prudlin, 320. Barnes v. Trundy, 316, 569, 593. Barnes v. Webb, 682. Barnett v. Allen, 194, 200, 255, 322, 329, 523, 596, 652. Baron v. Beach, 264. Barr v. Gaines, 622, 626. Barren t'. Mason, 127. Barrett v. Collins, 727. Barrett v. Jarvis, 183, 258. Barrett v. Long, 296, 584, 588, 590, 593, 660, 664, 666. Barron v. Mason, 715. Barrens v. Ball, 191, 239. Barrow v. Bell, 418, 529. Barrow v. Lewellin, 164. Barrows v. Carpenter, 370, 602, 604, 605, 642, 682. Barry v. Fisher, 154. Barry v. McGrath, 483, 604. Bartiielemv v. The People, 365, 676, 677. Bartholomew v. Bentlev, 192, 193. Bartlett v. Brown, 702." Bartlett v. Lewis, 514. Bartlett t>. Robinson, 171. Bartley v. Richtmeyer, 112. Barton v. Barton, 570. Barton v. Holmes, 651. Barton v. Port Jackson Plank Road, 282. Bartow v. Brands, 663. Barwell v. Adkins, 660. Bash V. Sommer, 182, 191, 208, 229, 479, 549, 550. Baskets. University of Cambridge, 481. Bassell v. Elmore, 157, 158,211, 249, 319, 594, Bassett v. Spofford. 575, 622. Bateraan v. Lyall, 596. Baum V. Clause, 122, 227, 358. Baxter's Case, 588. Bayard v. Passmore, 408. Baylis v. Lawrence, 530, 538. Beach »i. Beach, 549. Beach )'. Ranney, 113, 316, 319, 326, 549, 600, 619. Beal V. Robeson, 712. Buamoud v. Hastings, 312, 562. TABLE OF CASES. 29 Benney v. FitzEccM-ak^, 364. Beardsley v. Bridgman, i:49, 251, 682, 685. Beardsley v. Dibblcc, 182, 225, 256. Beardsley v. Tappan, 182, 285, 299, 456, 579, 580. Beasley v. Meigs, 668. Beatson v. Skene, 423, 455, 517, 643.] Beaumont v. Reeves. 62. Beavor v. Hides. 227. Bechtell >: Slialer. 148. Beck I'. Stitzcl, 222, 226, 313. Beckett v. Sterrett, 206, 240. Beckford v. D'Arcy, 514. Bedell v. Powell, l(t2, 325. Bedford Charity, 104. Beebe v. Bank of New York, 72. Beechey v. Sides, 510. Beers v. Root, 543. Beers v. Strong, 190. 197, 243. Behrens v. Allen, 409, 605, 606. Bell V. Hugg, 574, Bell V. Byrne, 630. Bell V. Farnswoith. 243, 247. Bell v. Howard, 541- Bell V. Parke, 425, 601, 678. Bell V. Parker, 424. Bell V. Pearcy, 709. Bell V. Quinn, 282. Bell V. Stone, 263, 264. Bell V. Thatcher, 254, 293, 303, 560. Bellamy v. Barker, 255. Bellamy v. Burch, 280, 290, 291. Bellingham v. Minors, 252. Benaway v. Congre, .540, 550, 579, 593. Bendish v. Lindsay, 253, 559. Benkelt v. McCarty, 248. Bennett v. Barr, 414. Bennett v. Bennett, 357, 691. Bennett w. Deacon, 349. Bennett v. Hyde, 657, 661. Bennett v. Matthews, 362, 599, 615, 668, 678, 684, 686. Bennett v. Wells, 296, 539. Bennett v. Williamson, 191, 264, 275, 524. Benson v. Flowers, 548. Benson v. Morley, 241. Bentley v. Reynolds, 316, 326. Benton v. Pratt, 334. Bergold v. Puchta. 307. Berisford v. Pi'ess, 252. Berry v. Adamson, 215, 702. Berry v. Carter, 248, 249, 251. Berry v. Dryden, 622, 633. Berryman v. Wise, 291, 654. Besebee v. Matthews, 706. Besson v. Smithard, 719, 726. Best i\ Bander, 282. Beswick v. Chiippel, 244, 581. Biddnlph v. Chaniberlayne, 214, 867, 644, 614. Biggs V. Great Eastern Railway Com- pany, 374, 590, 611. Bigneil v. Buzzard, 322. Bihin v. Bihin, 62. Billing V. Knight, 555. Billingliam v. Mynors, 366. Billings V. Russell, 161, 457. Billings I'. Waller, 605. Billings V. Wing, 222. 224, 226, 258. Biiins V. McCorcle, 355. Binns v. Stokes, 353. Bircii V. Benton, 224, 258, 593, 620. Birch r. Simnis, 621. Birch V. Walsh, 408. Bird V. Higginson, 519. Bisbev v. Shaw, 357, 615, 616, 673, 681, 684. Bishop V. Latimer, 404. Bishop )'. Martin, 728. Bissell V. Cornell, 182, 230, 362, 373, 612, 615. Black V. Holmes, 180, 297, 348. 644. Blackburn v. Blackburn, 532, 543. Blackham v. Pugh, 349, 432. Blackman v. Bryant, 256. Black well v. Wiswall, 166. Blagg V. Stnrt, 426, 590, 625, 658. Blair v. Sharp, 244. Blaisdell v. Raymond, 524, 557, 590, 600. Blake v. Pilford, 421, 644. Blake v. Stevens, 366, 403. Blakelee v. Buchanan, 511. Blanchard v. Fisk, 241. Blessing v. Davis, 575. Bleverhassett v. Baspoole, 312. Blickenstaff w. Perrin, 192, 211, 249, 616. Bliss V. VVyman, 712. Blizzard v. Hays, 712. Blizzard v. Kelly, 675, 727. Bloodworth v. Gray, 259, 260. Bloome v. Bloome, 196. 225, 539. Bloss V. Tobey, 182, 193, 222, 237. Blumenthal v. Brainerd, 167. Blunden i>. Eustace, 302. Blunt u. Little, 709, 712, 719, 722, 723. Blunt V. Zuntz, 618. Bodell V. Osgood, 267, 296, 421, 532, 541, 657, 668. Bodwell V. Swan, 357. 659, 686. Boldroe v. Porter, 109, 185. Bond V. Douglass, 151, 159, 649, 660, 687. Bond V. Kendall, 692. Bonner v. Boyd, 240, 241. Bonner's Case, 262. Bonner v. McPhail, 518, 566. Bonorai v. Backhouse, 114, 134. Bonyoii V. Trotter, 177. Boosey v. Wood, 478. Booth V. Leach, 235, 236. Booth V. M lines. 519. Booth V. Sweczy, 127. Borbidge r. Herst, 256. Born man v. Boyer, 210, 242. Boston v. Tatham, 227. Boston Diiitite Co. v. Florence Manufac- turing Co., 96. \o TABLE OF CASES, Bostwick V. Hawley, 594. Bostwick V. Jervis, 388. Bostwick V. Nicholson. 594. Botelar v. Bell, 660, 688, 693. Boulton V. Miiekls, 343. 346. Bourke v. Warren, 179, 623. Bourland v. Eidson, 691. Bowdf-n V. Allen, 645. Bowdish V. I'eckham, 567, 678, Bowen v. Hall, 678, 685. Bowers v. Hutchinson, 656. Bowman v. Early, 538. Box V. Barnaby, 252. Box's Case, 262. Boyd V. Brent, 249, 618. Boyd V. Cross, 706. Boydeil v. Jones, 179, 300, 305, 523, 554. Boyle V. Wiseman, 645. Boynton v. Boynlon, 671. Boynton v. Kellogg, 85. Bovnton v. Remington, 491.' Boys V. Boys, 249. Brace v. Brink, 245. Bracebridge v. Watson, 324. Bracegirdle v. Bailey, 677. Bracegirdle v. Orl'ord, 62. Braden v. Walker, 669. Bradford v. Edwards, 687, 688. Bradlaugh v. Brooks, 535. Bradley v. Gardner, 690. Bradley v. Gib?on, 685. Bradley v. Heath, 413, 416, 437, 685. Bradley v. Kennedy, 540, 673, 675. Bradley v. Methuen, 71. Bradshaw v. Perdue, 570. Brady v. Goulden, 321. Brady v. VVilson, 222, J 3 7. Brandford v. Freeman, 519. Brandreth v. Lance, 95, 98, Brandrick v. Johnson, 259, 308. Brandt v. Towsley, 325, 637. Brashen v. Shepherd, 568. Braveboy v. Cockfield, 703, 710. Bray v. Andrews, 231. Brayne v. Cooper, 223, 253, 295. 523. Brecheley v. Atkins, 236. Breckenridge v. Auld, 722. Breen v. file Donald, 573. Breeze v. iSails, 309. Brembridge v. Latimer, 556. Brent t'. Ingram, 175. Brett V. Watson, 4:i9. Bretton v. Anthony, 237, 573. Brewer v. Day, 62. Brewer i. Temple, 597, 728. Brewer v. Weakly. 287, 475. Bricker v. Potts, 247, 555. Brickett v. Da\is, 6n6. 615, 636, 660. Bri Iges ?'. Horner, 639. Brid.;man v. II"pkin8, 678, 685. Brig'.i's Case, 2.'i2. Briugs?;. Bvrd, 175, 176, 382, 383. Biill V. Flagler. 61. Brine v. Bazalgetle, 659. Brinsmead v. Harrison, 479. Bristow V. HeyAvood, 702. Brite v. Gill, 185, 210, 229. Hrittain v. Allen, 557, 663. Brittridge's Case, 181. Broad v. Ham, 715. Brockleman v. Brandt, 723. Brodrick v. James, 151. Bromase v. Prosser, 129, 130, 132, 135, 445, 532, 658. Bronson, Be, 408. Brook V. Evans, 4C6. Brook V. Montague, 136, 382. Brook V. Kawl, 341, 343. Brook V. Wise, 262. Brooker v. Coffin, 219, 249, 250. Brookes v. Titchbcurne, 357. Brook's Case, 289. Brooks V. Bemiss, 204, 264, 367, 608. Brooks V. Blanchard, 426, 443, 634. Brooks V. Bryan, 355. Brooks V. McLellan, 511. Broome v. Gosden, 543, 590. Broomfield v. Snoke, 257. Brow V. Hathaway, 460, 462. Brown v. Beatty, 370, 372. Brown v. Brasher, 152. Brown v. Brooks, 688. Brown v. Brown, 204, 580, 581, 687. Brown v. Chadsey, 699. Brown v. Champlin, 672. Brown v. Charlton, 185, 235. Brown ?;. Croome, 457. Brown v. Dankes, 252. Brown v. Foster, 728. Brown v. Gibbons, 321. Brown v. Griffin, 712. Brown V. Hail, 679 Brown v. Hathaway, 419. Brown v. Hirley, 162. Brown v. Hook, 303. Brown v. Kennedy, 319. Brown v. Lamberton, 196, 561, 568. Brown v. Leeson, 519. Brown v. Lisle, 190. Brown v. Michel, 382. Brown v. Mims, 300, 303. Brown v. Murray, 517, 522. Brown v. Nicker^ion, 259. Brown v. Orvis, 303. Brown v. Finer, 243, 582. Brown v. Randall, 704, 710. Brown v. Remington, 265. Brown v. Smith, 279, 297, 396, 536. Brown v. Thurlow. 569. Browning v. Aylwin, 515. Browning v. Newmm, 595. Brownlow's Case, 565. Uruffv. Mali, 166. Brunson v. Lj'ndo, 678. Brunswick?!, iiarmer. 159,531. Brunswick, Duke of, v. Pepper, 600, 673. Bruton v. Downe^ 385, 541, 605. Bryan v. Gurr, 607, 678 TABLE OF CASES. Bryan >'. Wikes, 208. Bryiint v. Foot, 110. Eryaiil v. Jackson, 476. Bryant v. Loxton, 281, 300. Buck V. Hersey. 222, 259, 293, 309. Buckiimham v. Murray. 577. ]kickley V. Knapp, 167, 541, 661, 687. Buckley v. 0'!s\e\, 253. Buckley v. Wood 382. Buckliii V. Ohio, 85. Buckraaster v. Reynolds, 133. Buddington v. Davis, 495, 602, 605. Buford I'. McLuniff, 678. Buliler V. Wentworth, 603. Bulkeley v. Keteltas, 718, 722. Bulkeley v. Smith, 719, 724. Bull r. Chapman, 550. Bullard v. Lambert, 676. Bullock V. Babcock, 135, 476. Bullock V. Cloyes, 660. Bullock V. Koon, 247, 557. Bulnois V. Mann, 118. Bundy v. Hart, 228, 237, 620. Banning v. Perry, 512. Bunten v. Worley, 383. Burbank v. Horn, 152, 208, 241, 570, 572. Burcher v. Orchard, 551. Burdelt v. Abbott, 649. Burdett v. Cobbett, 151, 159. Burford v. Wible, 362, 369. Burgess v. Boucher, 195. Burgett V. Burgett, 712. Burgis's Case, 626. Burbans v. Sanford, 705, 709, 723. Burk V. McBain, t^62. Burke v. Miller, 678, 679, 682. Burkett v. Lanata, 705. ^ Burliugame i;. Burlingame, 383, 706, tlQ. Burnett v. Chetwood, 95. Burnett v. Wells, 539. Burnham v. Seaverns, 726. Burns v. Erben, 719. Burns v. Webb, 357, Burnside v. Matthews, 546. Burratt v. Collins, 161. Burrell v. Nicholson, 519. Burson v. Edwards, 660, 662. Burt V. McBain, 459, 551, 639, 684, 691, Burt V. Place, 706. Burtch V. Nickerson, 221, 289, 290, 580. Burton v. Burton, 221, 253. Burton v. March, 657, 659. Burton v. Plummer, 641. Burton v. Tokin, 312. Bury V. Wright, 241. Bush V. Prosser, 136, 137, 138, 615, 616 673, 676, 684. Bush V. Smith, 233. Busst V. Gibbons, 717, 718, 729. Butler V. Howes, 303, 594. Butler V. Maples, 647. Butler )'. Wood, 587, 619. Butlerfield v. Buffum, 178, 196. Button V. Heyward, 169, 178, 189, 190, 203. 238, 560. Button V. Richards, 511. Butts V. Burnett, 511. Buys V. Gillespie, 250. Byne v. Moore, 701, 722. Byrket v. Monolion, 656, 657, 668, 675, 684. Byrn v. Judd, 617. Byron v. Elmes, 248. Caddy v. Barlow, 658, 723. Caesar v. Curseny, 312. ^ ,^« Caldwell v. Abbey, 213, 256, 257, 579. Caldwell?^. Raymond, 267. 557, 558. Calhoun v. McMeans, 692. Calkins v. Sumner, 388. Calkins v. Wheaton, 523. Call V. Foresman, 205, 566. Callao-her v. Cavendish, 512. Callau V. Gaylord, 639. Calloway Vi Middleton, 353. Camfield v. Bird, 636. Camp V. Barney, 167. Camp V. Martin, 305, 307, 308. Campagnon v. Martin, 621. Campbell v. Butts, 478. 480, 662, 665. Campbell v. Lewis, 539. Campbell w. Linton, 536. Campbell v. Spotliswoode, 359, 374, 4S^, 485. 493. Campbell v. White, 256, 325. Canada Life Assur. Co. v. O'Loane, 364. Candler v. Petit, 711. Cane v. Gouldinsj, 343. Cann v. Cann, 406. Cannon v. Phillips, 554, 566, 567. Canterbury v. Hill, 244, 566. Capel V. Jones, 263, 274. Cardival v. Smith, 697, 703, 705. Carey v. Allen, 569, 571. Carl I'. Ayres, 705, 707. 713. 716, 717. Carlock v. Spencer, 244, 540, 602. Carman v. Truman, 728. Carmichael v. Schiel, 185. Cam V. Osgood, 312. Carpenter i;. Barley, 64 4. Carpenter v. Dennis, 281, 297, 299, 568. Carpenter v. Shelden, 717. Carpentir v. The People, 85. Carpenter v. Tarrant, 227. Carr v. Duckett, 345. Carr v. Hood, 336, 345, 486, 487. Carr v. Jones, 404. Carrier v. Garrant, 161. Carrol v. Bird, 465. Carrol v. Falkiner, 328. Carroll v. White, 178, 203, 238. 239, 306, 557, 593. Carry v. ColVms, 180. Carsiake v. Mapiddora, 260. Carson v McFadden, 548. Carte? v. Andrews, 185, 186, 206, 257. 311, 558, 561, 593. 32 TABLE OF CASES. Carter v. Jones, 519. Carter v. McDowell, C65. Carter v. Smith, 325. Cartwriijht t'. Gilbert, 519. Cartwright v. Wright, 630. Case of the Deao of St. Asaph, 119. | Case of the Seven Bishops, 155, 649, 650. Case V. Belknap, 545. Case V. Buckley, 237, '241, 539, 555. Case V. Marks, 543, 661, 685. Casey v. Arnott, 333. Casneau v. Bryant, 517. Cass V. Anderson, 178, 197, 247, 558. Cassm V. Delany, 103, 542, 726. Castlebury v. Kelly, 230. Castleman v. Ilobbs, 579, 589. Cates V. Kellogg, 157. Catterall v. Catterall, 67. Catterall v. Kenyon, 162, 552. Caulfield v. Whitworth,447, 532, 603, 636, 659,662, 668. Cavanagh v. Austin, 662, 668. Cave V. Shelor, 568. Cavel V. Birket, 250. Caverly v. Caverly, 579. Caw drey v. Tetlev, 306. Ceely v. IIoskins,'l82, 195. Cefret v. Burcli, 228. Center v. Finney, 116. Center v. Spring, 127. 705, 712. Chace v. Sherman, 237. Chaddock v. Briggs, 193, 196, 222, 259, 264, 309, 311. Chadwick v. Herepath, 478, 483, 619. Chalmers *-. Payne, 402, 404, 524. Chalmers v. Shackell, 215, 558, 563. Chamberlain v. Gaillard, 519. Chamberlain v. White, 161. Chamberlain v. Willmore, 161. Chambers i: Caulfield, 541. Chambers v. Robinson. 703, 705, 723. Chamljers v. White, 561. Chandler v. Ilolloway, 176, 203, 238, 56 L 622. Chandler v. Robison, 612. Chantler ;•. Lindsey, 55U. Chapin v. White, 625. Chaplin, Jie, 483. Chaplin v. Cruiksliank, 253. Chapmnn v. Calder, 357. Chapman v. GiJletl, 243, 246. Chapman v. llislop, 722. Chapman v. Lampiiire, 297, 298. Chapman v. Ordway, 677. Chapman v. Pickersgill, 61, 698. Chapman v. Smith, 196, 244, 566. Chapman f. Wright, 446. Charlicr v. Barret, 623. Charlton's Case, 406. Charlton v. Walton, 405, 410. Charlton v. Watson, 673. Charnell's Case, 229. Charter v. Hunter, 240. Chase v. Whitlock, 255, 256. Chatfield v. Comerford, 436, 716. Cheadle v. Buell, 223, 229, 254, 622, 638. Cheatwood v. Mayo, 252. Cheese v. Scales, 314. Cheetham v. Tillotson, 539, 597. Chelf V. Penn, 705. Cheltenham Ry. Car Co. 40. Cheney v. Goodrich, 282. Chester v. Wortley, 514. Chetwind r. Meeston, 311. Chevalier v. Brush, 356. Child V. Affleck, 470, 658. Child V. Homer, 690. Childs V. State Bank of Mo. 502. Chilvers «;. Gi-eaves, 534. Chipman v. Cook, 253, 300, 303, 311. Chisholm v. State of Georgia, 91. Christie v. Cowell, 181, 182, 210. Chubb V. Flannagan, 117, 168, 614. Chubb V. Gsell, 656. Chubb V. We^iley, 660, 664. Church V. Bridgman, 190, 257, 354, 355, 568, 580. Churchill v. Hunt,' 213, 214, 269, 368, 607. Churchill v. Kimball, 575, 597. Churchill v. Siggers, 381, 699. Cilley V. Jenness, 603, 679. Cincinnati, (fee. Co. v. Timberlake, 402, 409. I City of London r. Vanacker, 477. ' Clapp V. Devlin, 434, 532, 662. Clapp V. Hudson River R. R. Co. 541. I Clare v. Blakeslev, 518. Clark V. Binney,"'263, 264, 265, 269. I Clark V. Brown, 374, 678, 685. 1 Clark V. Cleaveland, 704. 705. Clark V. Creitzburgh, 174. Clark V. Dibble, 373. Clark V. Everett, 705, 709. Clark V. Gilbi-rt, 208, 239. Clark V. Lamb, 539. Clarke v. Albert, 635. Clarke V. Fitch, 194. Clarke v. Freeman, 95. Clarke v. Mount. 249. Clarke v. Muneell, 352, 371, 516. Clarke v. Periam, 596. Clarke v. Postan, 701. Clarke v. Kankin, 120. Clarke v. Roe, 35 1, 437- Clarke v. Tavlor, 370, 373, 602, 615. Clarkson f. 'Lawson, 195, 213, 367,602, 618. Clarkson r. McCarty, 356. Classon v. Bailey, 63. Clay V. Barklev, 257. Clay V. Roberts, 272, 601. Clay V. Yates, 550. Cleaver v. Senaude, 451. Cli gg V. Latter, 266, 586, 588. Clement v. Chivis, 263, 267. I Clement v. Fisher, 539, 569. TABLE OF CASES. 33 Clement v. Lewis, 404, 540. Clements, Re, 483. Clements v. Newcombe, 512. Clements r. Ohrly, 717, 726. Clerk V. Dj-er, 179. Clerk V. James, 512. Cleveland v. Detweiler, 18-1, 249, 251. Clift V. White, 126. Clifton V. Wells, 262. Clinton v. Henderson, 603, 604. Clinton v. Mitchell, 522. Clissold V. Clissold, 512. Closson V. Staples, 381. Clover V. Royden, 97. Clutterbuck v. Chaffers, 140, 149. Coburn v. Harwood, 221, 230. Cochran >'. Butterfield, 157, 693. Cock V. Weatherby, 208, 540, 621. Cockaine v. Hopkins, 280. Cockaine v. AVitnam, 234. Cockayne v. Hodgkisson, 263, 350, 439. Coe V. Chambers, 175. Coffin V. Coffin, 375, 541, 569. Coghill V. Chandler, 620, 622. Cohen v. Morgan, 380, 702. Colabyn v. Viner, 249. Colbert v. Caldwell, 561. Colburn v. Patmnre, 552. Colburn v. Whiting, 490. Coiby V. Reynolds, 263, 2C5. Cole V. Curtis, 712. Cole V. Fisher, 61. Cole V. Grant, 247. Cole V. Perry, 541, 680. Cole v. Wilson, 440. Coleman's Case, 690. Coleman v. Harcourt, 321, 549. Coleman v. Playstead, 208, 210, 241, 658. Coleman i\ Southwick, 541, 560, 692. Coleman v. West Hartlepool Railway Co., 406. ^ Coles V. Haviland, 183. Coles V. Kettle, 293. Collier v. Bourn, 236. Collins V. Carnegie, 306, 623. Collins r. Cave, 327, 381. Collins V. Love, 703. Collins V. Matthews, 321. Collins V. Middle Level Com'rs, 159, Collins V. Yates, 513, 646. Collis V. Malin, 291, 662. Colman v. Goodwin, 178. Colonies' Case, 244. Commons v. Walters, 243, 627, 674, 685, Commonwealth v. Abbott, 530. Commonwealth v. Anthes, 530. Commonwealth v. Blanding, 155, 375, 645. Commonwealth i\ Buckingham, 176, 687. Commonwealth v. Child, 179. Commonwealth v. Clapp, 78, 136, 475. Commonwealth v. FeatherstDue, 452. Coninionwealth v. Guild, 650. Commonwealth v. Holmes, 576. Commonwealth v. Kneelnnd, 167, 179,188. Commonwealth r. Odell, 474. Commonwealth v. Porter, 530. Commonwealth v. Runnels, 178, 180. Commonwealth v. Snelling, 130, 186, 590, 593, Comm(mwealth v. Stacey, 466, Commonwealth v. Tarbox, 576. Commonwealth v. Varney, 624. Commonwealth v. Wright, 263, 313, 573, 574, 575. Connelly v. McDermott, 705. Connick v. Wilson, 204, 243. Connors v. Justice, 305. Conro V. Port Henry Iron Co. 501. Conroe v. Conroe, 635, 678, 682. Cooban v. Holt, 372. Cook V. Barkley, 137, 355, 685, 689. Cook V. Batchellor, 284, 551. Cook V. Bostwick, 243, 244. Cook V. Cook, 321, 388, 542, 596. Cook V. Cox, 539, 574. Cook V. Ellis, 538. Cook V. Field, 358, 594, 604, 660. Cook V. Gilbert, 208. Cook V. Hill, 348, 421, 429,456, 541, Cook V. Stokes, 628. Cook V. Tribune Association, 174,186, 370, 521, 605. Cook V. Ward, 357, 647. Cook V. Wingfield, 249, 632. Cooke V. Hughes, 186, 521, 642. Cooke V. O'Brien, 684. Cooke V. Smith, 630. Cooke V. Wildes, 451, 532, 667. Coombs V. Rose, 206, 413. Coons V. Robinson, 245. Cooper V. Barber, 362, 683. I Cooper V. Bissell, 539. Cooper V. Greeley, 78, 84. 187, 204, 264, 37 L 526, 593, 602, 607. Cooper V. Hakewell, 242. Cooper V. Lawson, 213, 370, 371, 493, 496, 527, 602. Cooper V. Marlow, 622. Cooper V. Perry, 182. Cooper V. Smith, 203, 238, 239. Cooper V. Stone, 263, 264, 266, 268, 485, 487, 488, 490. Cooper V. The Butcher of Croydon, 518. Cooper V. Weed, 512. Cooper V. Witham, 62. Coote V. Gilbert, 190. Cope V. Rowland, 282. Copham v. Leach, 513. Corbett v. Jackson, 421. Corbin v. Knapp, 598. Corcoran v. Corcoran, 256, 325. Core V. Morton, 246. Cornelius v. Van Slyck, 180, 196, 204,209. Corner v. Shew, 540. Corning v. Corning, 638. Cornwall v. Gould, 539. 34 TABLE OF CASES. Cornwall v. Richardson, 656. Cortland Co. i\ Herkimer Co. 671. Cory V. Bond, 614, 615. Cosgrove v. The Trade Auxiliary Co. S99, 532. Cotton V. Beaty, 483. Cotton V. Brown, 729. Cottrell V. Jones, 536. Cousins V. Merrill, 345, 597. Coventry v. Barton, 552. Cowan ('. Milbourn, 282. Coward v. Wellington, 431, 549. Cowdry v. Coit, 671. Cowles v. Potts, 473, 476. Cox V. Bunker, 249. Cox V. Coleridge, 405. Cox V. Cooper, 194, 272, 556. Coxr. Feeney, 410, 484. Cox V. Humphreys, 252. Cox V. Lee, 264, 276, 530, 538. Cox V. Smith, 382. Cox V. Thomasun, 559, 625. Coxhead?'. Richards, 137, 349, 447, 448, 463. Cracraft v. Cochran, 597. Craft V. Boite, 512. Craig V. Brown, 232, 314. Craig V. Catlet, 693. Grain v. Petrie, 328. Cramer v. Noonau, 202, 265, 268, 538, 579. Cramer v. Riggs, 292. Cranage v. Price, 598. Cranden v. Walden, 308. Crane v. Douglass, 355. Crawfoot v. Dale, 289, 290. Crawford v. Mellton, 244. Crawford v. Middleton, 353. Crawford v. Milton, 602. Crawford v. Wilson, 221, 223, 243,' Crawford, Ee, 408. Crean v. Gamble, 346. Creebnan v. Morley, 371. Creelman v. Marks, 238, 254, 622. Creamer v. Benton, 141. Creevyii. Carr, 375, 692. Cregier v. Bunton, 524. Creightou v. Findlay, 375, 692. Cresinger v. Reed, 148, 189. Crisp V. Gill, 455. Croft V. Brown, 191, 231. Croft V. Stevens, 394. Croke v. O'Grady, 644. Croue V. Angell, 245. Crook V. Averin, 190. Crookshank v. Gray, 245, 248, 558. Cropp V. Tihiey, 264. Croskeys v. O'Driscoll, 258. Crosswell v. Weed, 593. Crotty V. McMahon, 490. Crotty V. Morrissey, 623. Crow, Ex parte, 4(J6. Crozier v. The People, 85. Cruger v. Hudsou River R. R. Co. 192. Crump V. Adney, 362. Cuddington v. Williams, 227. Cude V. Redditt, 353. Culberton v. Stanley, 621. Cullan V. Gaylord, 649. Culver V. Van Am 'en, 577. Cummerford v. McAvory, 355. Cummin v. Smith, 243. Cummings v. Bird, 547. Cimimins v. Butler, 572. Cundell v. Dawson, 282. Cunningham v. Brown, 388. Curl's Case, 73. Curry v. Collins, 255. Curry v. Walter, 400, 409. 644. Curtis V. Curtis, 145, 210, 212, 233, 254, 515. Curtis V. Lawrence, 538. Curtis V. Mussey, 167, 352, 475, 657. Custis V. Sandfoi'd, 673. Cutler V. Friend, 183. Da Costa v. Paz, 104. Dailey v. Reynolds, 249, 250. Daily v. Gaines, 621. Dain v. Wyckoff, 112. Daines v. Hartley, 148, 189, 194, 196,299, 652. Dale V. Lyon, 157. Dalrymple v. Lofton, 226, 244, 246, 566, 567. Dalton V. Higgins, 246, 248. Daly V. Byrne, 600, 605. Damport v. Sympson, 387, 388. Duncaster v. Hewson, 383, 418, 627. Dane v. Kenney, 353, 656. Darby v. Ouseley, 347, 374, 520, 522, 530, 531, 532. Darcy v. Markham, 144. Darling v. Banks, 248. Darry v. The People, 129, 131. Davey v. Pemberton, 517. Davidson v. Duncan, 417. Davidson v. Isham, 61. Davies v. Duncan, 498. Davies v. Snead, 419, 432, 450, 462. Davies v. Solomon, 250, 319. Davies v. Taylor, 262. Davis' Case, 243. Davis V. Cutbush, 534, 683, 692. Davis V. Davis, 281, 300, 541. Davis V. Gardiner, 287, 320. Davis V. Gray, 645. Davis V. Griffith, 691. Davis V. Hardy, 719. Davis V. Johnston, 240, 524. Davis V. Lewis, 297, 298, 354. Davis V. Matthews, 602. Davis V. Miller, 258, 300. Davis V. Noak, 233, 575, 628, 726, 727. Davis V. Ockham, 239, 478. Davis V. Reeves, 435, 447. TABLE OF CASES. 35 Davis V. Ruff, 285, 293. Davis /'. Scott, 511. Davis V. Sherron, ()26, 628. Davis V. Stewart, 373. Davison v. Duncan, 378, 414, 482. Daw V. Ely, 406, 408. Dawes v. Bolton, 252. Dawkins v. Lord Paulet, 397. Dawkins v. Rokeby, 387, 643. Dawliiig V. VeniLan, 382, 386. Dawling v. Wenman, 382. Dawson v. Van Sandau, 711. Day v. Bream, 146, 164. Day V. Bnller, 305, 307. Day V. Robinson, 180, 207, 539, 587, 589 593. Day V. Tuckett, 515. Dayton v. Rockwell, 247, 248. Dayton v. Wilkes, 167. DeArmond /■. Armstrong, 189, 651. DeBode v. Regina, 154. Deboux V. Lehind, 576. De Costa v. Jones, 519. Decow V. Tait, 257. De Crespigny v. Welleslv, 357. Dedw.-iy ;-. Powell, 650. " Deff'ries (i. Davies, 663. Deford v. Miller, 223. Def'ries v. Davis, 477, 511. DeHart w. Hitch, 511. Delacroix v. Thevenot, 146. Delamater v. Russell, 92. Delaney v. Jones, 269, 432. Delaware v. Pawlet, 312. Delegal v. Highley, 344, 403, 597, 662, 713, 729. De Lettre v. Kilner, 648. Dellevene v. Percer, 179. Demarest v. Haring, 178, 188 190 221 223, 309, 650. De Medina v. Grove, 138, 699. De Moss y. Haycock, 188. Dengate v. Gardiner, 326, 549. Dennis v. Ryan, 705, 715. Derry v. Handley, 157, 330. Desmond t'. Brown, 151, 162, 620. Detroit Daily Press Co. v. McArthur, 534. De Witt V. Buchanan, 154. De Witt V. Greenfield, 678, 679. Dexter v. Spear, 78, 130, 142, 157, 657. Dex-ter v. Taber 208, 524. Deyo V. Brundage, 578. Dial V. Holter, 223, 413. Dias V. Short, 178, 252,557. Dibdin v. Swan, 322, 488. Dicken v. Shephard, 157, 290, 329. Dickerson v. Fletcher, 395. Dickerson v. Hilliard, 427. Dickey v. Andrews, 234, 628. Dickinson *'. Barber, 476. Dickson v. Earl Wilton, 4 24, 533. Didway v. Powell, 391. Digby V. Thompson, 196, 263, 269, 581. JHllard V. Collins, 365, 672. Dillaye v. Hart, 507, Dillon V. Anderson, 671, 721. Dimmock v. Fawset, 183. Dioyt V. Tanner, 597. Distin V. Rose, 664, 668. Ditchen ;■. Goldsmith, 519, Dixon V. Enoch, 514. Dixon ;'. Holden, 95, 96, 109. Dixon V, Parsons, 467. Dixon V. Smith, 157, 322, 329. Dobson 7\ Thornistone, 281, 297, 298. Dod p. Robinson, 291, 308, 309, 562." Dodd V. Crease, 544. Dodds V. Henry, 254, 313, 416. Dodge V. Lacey, 200, 202, 579, 589. Doe V. Brayne, 519. Doe V. Earnhart. 118. Doherty v. Brown, 632. Dole V. Lyon, 356, 661. Dole V. Van Rensselaer, 312. Dolevin ?'. Wilder, 615, 617,673, 684, 688 689. Dolloway i<. Turrill, 67, 132, 191, 193 311 358, 529. Donage v. Rankin, 569. Donoghue v. Hayes, 477, 523. Donnelly v. Swain, 683. Dorland v. Patterson, 178, 181, 188. Dorrell v. Grove, 236. Dorrel v. Jay, 555. Dorset v. Adams, 565. Dorsey v. Whlpps, 229, 252, 554,555 579 618. Doss V. Jones, 603, 638, 668. Dottarer v. Bushey, 174 210 "2'' 240 527, 581. Dotter V. Ford, 290. Dot}' V. Wilson, 552. Douge ti. Pearce, 357, 641. Douglas V. Corbett, 715. Douglass V. Tousev, 85, 541, 678, 681 682. Dowd V. Winters, 625. Dowling V. Brown, 548. Down's Case, 233. Downs V. Hawley, 365. Downing v. Marshall, 384. Downing v. Wilson, 251. Doyle V. O'Doherty, 386. Doyley v. Roberts, 264, 293, 294, 653. Drake v. Beekman, 548. Drake v. Drake, 308. Driggs V. Burton, 705. Drummond v. Leslie, 178. Drummond v. Pigou, 729. Dryden v. Dryden, 539. Dubois V. Keats, 726. Du Bost V. Beresford, 95, 96, 176, 179. Duckett V. Satchwell, 547. Dudley v. Horn, 224, 258. Dudley v. Robinson, 210, 238, 239. Duel )'. Agan, 576. Dn^Y r. The People, 530. Duke V. Jostling, 558. 36 TABLE OF CASES. Dukes V. Clark, 229, 254. Dumont v. Smith, 127. Duncan ;■. Brown, 178, 190, 232, 374, 531. 534, 688. Duncan r. Little, 118. Duncan r. Thwaites, 138, 409. Duuckle V. Wiles, 215. Duncombe v. Daniel], 475, 520. Dunham i\ Pnwers, 396. Dunlap »'. Glidden, 388. Dunman v. Bisfg, 443. Dunn V. Hall, l67. Dunn V. Winters, 394, 672. Dunn V. Withers, 263. Dunne r. Anderson, 490. Dunnell v. Fiske, 2(t7, 208, 224, 527. Durant v. Durant, 62. Durham v. Musselman, 122. Dutton V. Eaton, 260. Duvall V. Griffith. 663. Dwiuell V. Aiken, 674, 675. Dyer v. Morris, 181, 251. Eagan v. Gantt, 357. Eagar v. Dj^ott, 727. Eagleton v. Dutchess of Kingston, 383. Eakins v. Evans, 543. Earl V. Vass, 643. Early v. Smith, 516. Easley v. Moss, 452. 622. East V. Chapman, 410, 673. Eastern Counties Railwaj' v. Brown, 502. Easterwood v. Quinn, 355, 691. Eastland v. Caldwell, 226, 365, 678. Eastmead v. Witt, 469. Eastwood V. Holmes, 176, 494, 652, 654. Eaton V. Allen, 231, 234, 258, Eaton V. Johns, 214, 588, 618. Ebersol v. Krug, 549, 550. Eccles V. Shannon, 243. Echlin V. Singleton, 603. Eckart v. Wilson, 185, 203, 561. Edde V. Waters, 619. Eddowes ?'. Hopkins, 539. Ede V. Scott, 363, 608. Eden v. Legare, 183, 258. Edgar v. McCutchen, 180. Edgar v. Newell, 541, 678. Edgerley v. Swain, 193, 224, 229, 554, 578, 629. Edmonds v. Walter, 606. Edmonson v. Stephenson, 466. Edmunds v. Greenwood, 514. Edsall V. Brooks, 177, 313. 404, 523, 667. Edsall V. Russell, 192, 193, 203, 225, 239, 295, 306, 373, 602. Edwards v. Bell, 215, 310, 370, 371, 602. Edwitrds' Case, 109. Edwards v. Chandler, 650, 658. Edwards v. Howell, 291. Edwards v. Reynolds, 539. Edwards v. W^joton, 146. Egerton v. Furzman, 519. Eiffe V. Jacob, 478. Elam V. Badger, ISO, 574. Eldridge v. Bell, 550. Elliott V. Ailsberry, 222, 248. Elliott V. Boyles, 662, 683. Elliott V. Brown, 535. Ellis V. Abrahams. 711. Ellis V. Buzzell, 674. Ellis V. Kimball, 175, 577. Ellis V. Lindley, 664. Ellis V. The People, 127. Else V. Evans, 357. Else V. Ferris. 297, 298. 683, 688. Elsee V. Smith, 701, 703. Emery v. Miller, 181, 632. Emery v. Prescott, 580, 589. Emington v. Gardiner, 550. Emperor of Austria v. Day, 95. Empson v. Fairfax, 544. Empson v. Fairford, 526, 531. Empson v. Griffin, 539. England v. Burke, 604. Engurst v. Browne, 802. Entick V. Carrington, 394. Erwin v. Sumrow, 657, 658. Estes V. Antrobus, 657. Estes V. Carter, 230. Eure V. Odom, 230. Evans v. Franklin, 606. Evans v. Gwyn, 250. Evans v. Harlow, 172, 335, Evans v. Harries, 321, 536, 595. Evans v. Smith, 693. Evans v. Tibbins, 203. Eviirts V. Smith, 247, 352, 621. Ewing V. Cullen, 548. Fagnan v. Knox, 709, 715, 717, 722. Fairchild v. Adams, 412. Fairman v. Ives, 359, 421, 425, 428, 658. Faith V. Carpenter, 547. Falkner v. Cooper, 175, 249. Fallenstein v. Boothe, 178, 190. Falvey v. Stanford, 542. Faris v. Starke, 449. Farley v. Ranck, 657, 659. Farmer v. Darling, 722. Farmers' Bank v. Butchers' Bank, 166. Farnham v. Feeley, 699, 705, 715, 716. Farnsworth v. Storrs, 198, 255, 412, 414. Farr v. Roscoe, 315, 374. Faulkner v. Wilcox, 541. Fawcett v. Booth, 668. Fawcett v. Charles, 398, 416, 426. Fay V. O'Neill, 705. Feise v. Binder, 595. Felkin v. Ld. Herbert, 406. Fellows V. Hunter, 211, 294, 605, 614. Feray v. Foote, 216. Fcrdon v. Cunningham, 282. Fero V. Ruscoe, 361, 362, 373, 462, 668, 683. Fidler v. Delavan, 187, 285, 362, 363, 372, 373, 551, 602, 605. Fidman v. Ainslie, 357. TABLE OF CASES. Zl Fiedler v. Darrin, 671. Figo'ins V. Coiiswell, 5fi3. Filben v. Deutcinarin, 210, 251. Finch I'. Gridley, 2RI. Fiuden v. Westlake, 432, 452. Findlay v. Rear, 208. Findlay v. Lindsay, 515. Fink V. Justh, 600. Finnerty i'. Parker, 573. Finnerty v. Tijiper, 649. First Baptist Church c. Brooklyn Fire Ins. Co. 501. First Baptist Church in Schen. v. Schen. \ Blatchford, 582. Gale V. Hays, 5G5. Gale V. Leckie, 550. Gallager v. Brunei, 334. Gallaway v. Burr, 108, 714, 716, 724. Galloway v. Courtney, 188, 241, 554, 692. Galloway v. Stewart, 712, 716. Gallwey v. Marshall, 230, 283, 289, 295, 308, 309, 562. Gandy v. Humphries, 659. Gants V. Yinard, 674. Gardiner v. Dyer, 575. Gardiner v. Hopwood, 291. Gardiner i'. Spurdance, 239. Gardiner v. Thomas, 154. Gardiner v. Williams. 582, 593. Gardner v. Helvis, 265. Gardner v. Slade, 466, 471, 532. . Garford v. Clerk, 262. Garland, Fx parte, 227. Garnett v. Derry, 205. Garnett v. Ferrand, 395, 405. Garr v. Selden, 305, 308, 386, 573. Garret v. Taylor, 63. Garrett v. Dickerson, 462, 662. Garrison v. Pearce, 705, 723. Garyey v. Wayson, 661. Gascoigne v. Ambler, 249. Gassett v. Gilbert, 430, 458. Gates V. Bowker, 197, 281, 624, 644. Gates V. Meredith, 477, 691. Gathercole v. Mial, 263, 485, 500, 648. Gaud}' V. Smith, 256. Gaul V. Fleming, 241. Gay V. Homer, 202, 300, 302, 575. Gazynski v. Colburn, 549, 550. Geare v. Britton, 594. Geary v. Connop, 622. Geary v. Physic, 63. Gee V. Pritciiard, 96. Geeve v. Copshil, 312, Gelen v. Hall, 375. Genet v. Mitchell, 133, 367, 519, 522, 523, ■ 528. George v. Goddard, 415, 476, 533. George v. Jones, 358. George v. Lemon, 610. Gerard r. Dickinson, 343. Gerard Will Case, 105. Getting v. Foss, 456. Gfroerer v. Hoffman, 520, 541. Gibbs V. Ames, 703. Gibbs V. Artluu- & Burdell, 408. Gibbs /'. Dewey, 201, 221, 223. Gibbs V. Pike. 342. Gibbs V. Tiicker, 245. Gibson v. Nivcn, 547. Gibson?-. Williams, 148, 176, 189, 191, 524, 050. Giddiiis r. Mirk, 196, 199, 221. Gidney v. Blake, 175, 188, 568. Gilbert v. Burten,~haw, 541. Gilbert v. Emmons, 704. Gilbert v. Rodd, 205. Gilbert v. Sheldon, 85. Gilbert r. The People, 383. Gilbreath v. Allen, 538. Gilden v. O'Brien, 386. Giles V. The State, 159, 265, 571, 593, 639. Gill V. Briijht, 240, 241. Gillespie ?C Hudson, 703. Gillet V. Mason, 208. Gillette. BuUivant, 323, 330. Gillett V. Mo. A^alley R. R. Co. 502. Gillis V. McDonald, 441. Gihnan v. Lowell, 245, 355, 673, 678,-683, 684. Gilmer v. Ewbank, 374, 657. Gilmore v. Borders, 669. Gilpin V. Fowler, 349, 454, 533, 667. Giraud v. Beach, 175, 503, 515. Given v. W'ebb, 728. Glass V. Stewart, 551. Glen V. Hodges, 154. Glines v. Sm'ith, 252. Goddard v. Smith, 704. Godfrey r. More, 239. Godfrey v. Owen, 304. Godson r. Home, 529. Golderraan v. Stearns, 259, 358. Goldstein v. Foss. 195, 284, 590. Gompertz v. Lew, 579, 584, 587. Good r. French, 708,718. Gooilale v. Castle, 237. Goodall V. Ensall, 544. Goodbread v. Leadbitter, 693. Goodburne v. Bowman, 368. Goodenow v. Tappan, 395. Goodman v. tttroheim, 705, 721. Goodrich v. Davis, 176, 196, 530, 531, 555, 642. Goodrich v. Hooper, 315. Goodrich v. Stone, 176, 667. Goodrich v. Warner, 152, 624, 705. Goodrich v. Woolcot, 197, 230, 523, 581, 650. Goodspeed v. East Haddam Bank, 502. Goodwin v. Daniels, 673. Gordon's Case, 291. Gordon v. Spencer, 159. Gordon i\ Upliarn. 709, 716, 718. Gore V. Gibson, 477. Gorham v. Ives, 202, 234, 235, 524. Gorman v. Sutton, 668, 674. Gorton v. De Angelis, 704, 710, 723. Gorton v. Keeler, 243, 373, 617, 675, 684. Goslin V. Corry, 537, 665. Goslia V. Wilcock, 697, 727. Gosling V. Morgan, 193, 222, 539, 554, 579. Gosslin V. Cannon, 382, 388. Gostling V. Brooks, 103, 299, 524, 526, 542. Gcttbchuot >: Hubachek, 259. Gould /'. (ilass, 192. Gould v. llulme, 383. TABLE OF CASES. 39 Gould V. Oliver, 539. Gould ('. Slu'i-man, "/OS. Gould V. Weed, 522, 090, 693, Goulding c. Herring, 341. Gourley v. Pennsoll, 516, 607, 646. Gove V. Blethan, 293. Gower v. Heath, 542. Graham v. Jones, 616. Graham v. Woodhull, 635. Grant v. Astle, 539. Grant v. Hover, 675, 683. Grant v. Mosely, 166. Grater v. Collard, 535. Grave's Case, 242. Graves v. Blanchard, 249. Graves v. Waller, 525, 539. Gray v. Metcalfe, 291. Gray v. Nellis, 572. Gray v. Pentland, 397, 421, 643. Gray v. Wayle, 242. Gray v. West, 544. Grayson v. Meredith, 518. Green v. Button, 327, 328, 338, 344, 345. Green v. Chapmnn, 490. Green v. How, 249. Green v. Hudson River R. R. Co. 102. Green v. Lincoln, 236. Green v. London Omnibus Co. 502. Green v. Long, 566. Green v. Telfair, 528, 529. Green v. Warner, 239. Greenfield's Case, 300. Greenshields v. Crawford, 174. Greenslade v. Ross, 513. Gregory, A'e, 483. Gregory v. Atkins, 362, 526, 527, 676. Gregory v. Derby, 701. Gregory v. Duke of Brunswick, 61, 322, 361, 539. Gregory v. Regina, 263. Gregory v. Williams, 537. Grenfel v. Pierson, 544. Greville v. Chapman, 282. Griffin v. Chubb, 709. Griffin v. Marquardt, 127. Griffin v. Moore, 250. Griffin v. Walker, 513. Griffith V. Wells, 282. Griffiths V. Hardenburgh, 552. Griffiths *'. Lewis, 159, 193, 297, 301, 459, 539, 586, 589, 597, 598. Griggs V. Vickroy, 190. Grills i,'. Marwells, 603. Grimes v. Coyle, 374, 419. Grimes v. Gates, 264. Grosvenor v. Hunt, 518. Grove v. Brandenburg, 388. Grove v. Hurt, 549. Grubs V. Keyser, 575. Guard v. Risk, 250, 570. Guest V. Warren, 699. Gugy V. Kerr, 395. Guilderslee v. Ward, 208. Guilford's Case, 235. Guille V. Swan, 135. Gurneth v. Derry, 246. Gutsole V. Mathers, 345, 568, 573, 576. Guy V. Gregory, 326, 537. Gwynn v. Southeastern Itailway Co. 372. Gwynne v. Sharpe, 600, 653, 674. Gyles V. Bishop, S07. Hackett v. Brown, 676, 689. Haddon v. Lott, 317. HaJdrick v. Heslop, 714, 729. llagan v. Hendry, 130, 600, 604,687. Haggart's Trustee v. Hope, 395. Hahnemannian Life Ins. Co. »'. Beebe, 502 504. Haight V. Cornell. 418, 422, 528, 532. Haight V. Hoyt, 234. Haile v. Fuller, 151. Hniles V. Marks, 718. Haine v. Welling, 355. Hains v. Elwell, 704. Haire v. Wilson, 118, 533. Ilakewell v. Ingram, 530, 531. llaldeman v. Martin, 162. Hale V. Blandy, 561, 581. Halford v. Smith, 544. Hall V. Adkins, 209, 211, 242. Hall V. Fisher, 704. Hall V. Montgomery, 243, 244, 247. Hail V. Nees, 597. Hall V. Suydam, 709, 713, 716, 722, 723. Hall V. Vreeland, 154. Hall V. Warner, 217. Hall V. Weedon, 244. Halley v. Stanton, 238. Halliday v. Ontario Farmers' Ins. Co. 274. Halliwood's Case, It 5. Hallock V. Miller, 113, 267, 317, 557, 595. Halloran v. Thompson, 440. Hamber v. Roberts, 173. Hamer v. McFarlin, 678. 679. Hauiilton v. Dent, 247. Hamilton v. Glenn, 523. Hamilton v. Langley, 625, 627. Hamilton v. Smith, 196. Hamilton v. Walters, 172, 334, 595. Hatnmond v. Hussey, 350. Hampton v. Wilson, 352. Hancock v. Case, 434. Hancock v. Stepiiens, 178, 196, 622, 685. Hancock v. Winter, 233, 633. Hand v. Winton, 253, 267, 556. Hankinson v. Bilby, 134, 181, 184, 185, 188, 189. Hanks v. Palton, 574. Hanna v. Blaquiere, 266, 438. Hanson v. Hill, 551. Hansborough v. Stinnett, 582. Hansler v. Harding, 688. Harbison v. Shook, 567, 656, 662,668. Harcourt v. Harrison, 594, 656. Hardin v. Cumstock, 166, 382. Harding v. Brooks, 203, 252, 540. Harding v. Bulman, 387, 388. 40 TABLE OF CASES. Harding v. Greening, 166. Hardwick v. Chandler, 304. Hare v. Mellor, 420. Hargrave v. Le Breton, 132, 135, 172, 337, 340. Harker v. Orr, 539. Harkrader v. Moore, 722, 723. Harle v. Catherall, 485, 662. Harman v. Brotherson, 396. Harman v. Delany, 180, 264, 279, 359. Harman v. Carrington, 202, 659. Harmon v. Harmon, 666. Harnett v. Wilson, 321, 345. Harper v. Delph, 174, 211, 561, 568. Harper v. Harper, 438, 603. Harper v. Luffkin, 112. Harpham v. Whitney, 708, 722, 723. Harrington v. Miles, 208. Harris v. Amery, 279. Harris v. Bailey, 290. Harris v. Burley, 581. Harris v. Dixon, 231. Harris v. Harrington, 421. Harris w. Huntington, 551. Harris v. Lawrence, 620. Harris v. Porter, 324. Harris v. Pritchard, 300. Harris v. Purdy, 245, 565, 567. Harris v. Smith, 255. Harris v. Thompson, 442, 532, 533, 659. Harris v. Wilson, 656. Harris v. Woody, 244, 612. Harrison v. Bevington, 175, 285, 551,651. Harrison v. Bush, 87, 351, 398, 421, 425, 438, 544. Harrison v. Findlay, 182. Harrison v. King, 195, 232, 234, 294. Harrison v. Pearce, 158, 479, 537, 665, 693. Harrison v. Stratton, 192, 230, 232. Harrison v. Thornborough, 182, 188, 191, 234, 297, 298. Hart V. Coy, 209. Hart V. Crow, 550. Hart V. Reed, 266, 357. Hart V. Strong, 545. Hart V. Von Gimbach, 421. Harlin v. Hopkins, 541, 543. Hartley v. Herring, 319, 321, 322, 595. Hartrauft v. Hesser, 659. Hartsock v. Reddick, 383. Hartwell v. Vesev, 440, 450, 658, 659. Harvey v. Boies,'226, 244, 246. Harvey v. Brand, 18n. Harvey v. Coffin, 173. Harvey v. Dunlap, 116. Harvey v. French, 177, 211. 580, 593. Harwood v. Asiley, 137, 277, 282, 475, 562. Harwood v. Green, 429. Harwood v. Keech, 421, 437, 438, 440, 450, 659, 672. Haskins v. Lutnsden, 352, 685. Hastings v. Lusk, 137, 390, 391, 398. Hastings v. Palmer, 317. Hatch V. Lane, 274, 230, 458. Hatch V. Potter, 476. Hatcher v. Rocheleau, 174. Hatfield v. Gano, 251. Haupt V. Pohlinann, 704, 706, 720. Hawk V. Harman, 551. Hawkes v. Coster, 354. Hawkes v. Hawkev, 580, 584, 593. Hawks V. Patton, 188, 641. Hawley v. Sidenham, 242. Hawn V. Smith, 181, 213, 240. Haws V. Stanford, 243, 357, 521. Haynes v. Leland, 159, 355. Haynes v. Ritchey, 184, 2&6. Hays w. Allen, 314. Hays V. Berry man, 517. Hays V. Blizzard, 704. Hays V. Brierly, 623, 591. Hays V. Hays, 203, 238, 524. Hays V. Mitchell, 181, 182, 680. Hayter v. Moat, 539. Haythorne v. Lawson, 285, 537, 551. Hay ward v. Cuthbert, 702. Hayward v. Naylor, 240. Hayward v. Newton, 542. Haywood v. Foster, 685. Head v. Briscoe, 551. iJeoke V. Moulton, 226, 233, 252. Hearne v. Stowell, 310, 399, 400, 402, 416, 417. Heath v. Heape, 725. Heaton v. Wright, 615. Hecker v. DeGroot, 117, 505. Hedley v. Barlow, 494, 521. 1 Helly V. Hendur, 242. Helsham v. Blackwood, 214, 368, 619. Heming v. Power, 181, 186, 225, 226,524, 56U, 584, 600, 653. • Hemmenway v. Woods, 190. Hemmings v. Gasson, 526, 556, 590, 664. Henacre v. , 175. Henderson v. Broomhead, 384, 386, 394. Henderson v. Hale, 266. Henderson v. Jackson, 699, 728. Henken v. Guers, 519. Hennessey v. Morgan, 606. Henry v. Hamilton, 247. Henry v. Norwood, 678, 682. Henshaw v. Foster, 63. Henson v. Veatch, 479, 683, 685, Ilenwoodt). Harrison, 494, 633. Her r. Cromer, 656. Ileriot V. Stewart, 335, 487, 489, 563. Herle v. Osgood, 292. Herman v. Brookerlioff, 706. llerr v. Bamberg, 30n, 6it5. Herrickj;. Lapham, 113, 594. Ilersli V. Ringvvidt, 113, 355,622. Ilerst V. Borbidge, 252, 266. Herver v. Dawson, 442. lleslerv. Degant, 522, 654, 660. Heslop V. Chapman, 714. Hess V. Fockler, 639. TABLE OF CASES. 41 Hess V. Jockley, 204. Ilewitf. Mason, 259,596. Hewlett V. Crutchlev, 541, 713. Heyne v. BLiir, 7O7,"709, 717, 719, 720. Hibbinsi'. Lee,495,6::i9. Hibbs V. Wilkinson, 486, 488, 688. Hiblert'. Servoss, 624. Hickenbotham v. Leach, 610. Hickley v. Grosjeau, 675, 576. Hicks'Case, 146. Hicksr. Foster, 535. Hicks V. Hollingshead, 250. Hicks V.Joyce, 249. Ilieks V. Rising, 675 Hicks V. Walker. 594. Higginson v. Flaherty, 392. Highmore v. Harrington, 541. HilU'. Hogg, 676. Hill V. Miles, 382, 383, 575, 628. Hill V. Patterson. 544. Hill V. Sellick, 396. HilU'. Wallace, 220. Hill V. Ward, 337, 344, 345. Hillhou?e v. Dunning, 245, 263. Hillhouse V. Peck, 212, 222, 223, 229, 254 Hilliard v. Constable, 312. Hills' Case, 297 Hills V. University of Oxford, 481. Hilsden v. Mercer, 365. Hilton V. Playters, 305. Hinkle v. Davenport, 161, 692. Hinkman v. Firnie, 519. Hirst V. Goodwin, 322. Hitchin v. Campbell, 478. Hitchonw. Best, 512, 639. Hix V. Drury, 603, 608, 638. Hoag V. Hatch. 221, 223, 253, 539. Hoarf. Ward, 174, 257. Hoar V. Wood, 382, 390, 392, 598. Hoare v. Dickson, 519, 545 Hoare v. Silverlock, 180, 183, 197, 268,400, 401,409. Hobartv. Willdns, 512. Hobson V. Hudson, 260. Hodge V. Churchyard, 51 3. Hodgson V. Scarlett. 232, 390, 392. Hogan V. Hendy, 188. Hogan V. Sutton, 500. Hogan V. Wilmoth, 565, 566. Hogg V. Dorrah, 178, 314. Hogg V. Vaughan, 309. Hogg V. Wilson, 178, 239, 539. Hogle V. Hogle, 247, 543. Holcombe w" Roberts, 574. Holland v. Stoner, 191. HoUenbeck v. Clow, 603. Holley V. Burgess, 204, 227, 656. HoUiday v. Ontario Farmers' Mut. Ins. Co 430,458. Hollingsworth v. Duane, 408. Hollingsworth v. Shaw, 252, 255. HoUisji. Briscow, 312. Holmes v. Catesby, 605, 611. Holmes v. Johnson, 422. Holtt'. Astricrg, 102. Holti).l'arsons, 374,413, 662. Holt i'. ScholeticUl, 109, 192, 224, 225, 229, 264, 539, 582. Holt V. Taylor, 555. lloltou V. Muzzy, 364, 581, 598. Holwood V. Hopkins, 329. Home V. Bentinck, 397, 643. Homer i\ Battyn, 62. Homer v. Euglehardt, 273. Homer v. Taunton, I80, 523, 524, 650. Honess v. Stubbs, 603. Honeywell v. Burns, 545. Houywood, Re, 145. Hood I'. Palm, 162. Hooker v. Tucker, 559. Hooper v. Martin, 253. Hooper v. Truscott, 4 1 9. Hopkins v. Beedle, 229, 243, 244, 339. Hopkins v. Smith, 675. Hopton V. Baker, 313. Hopwood V. Thorn, 229, 309, 439. Horn V. Foster, 244, 248. Home's Ciise, 95. Home I'. Powell, 231. Horner v. Marshall, 477. Horstock V. Boniface, 267. Hort V. Reade, 373. Horton v. Banner, 603, 635. Horton v. Byles, 549. Horton i^. Payne, 551. Horton v. Reavis, 620. Hoskins v. Tarrance, 242. Hosley v. Brooks, 538, 572, 659, 662, 693. Hosmer v. Loveland, 94, 384, 398,426. Hotchkiss V. Lothrop, 661, 689. Hotchkissv. Oliphant, 234, 3/.6, 687. Hotchkiss «;. Porter, 374,462, 657. Houghtaling v. Kilderhouse, 656. Houghton V. Davenport, 569. Hounstield v. Drury, 729. House V. House, 237. Hovey V. Rubber Tip Pencil Co. 96, 336. Howv.Prinn, 288. Howard v. Crowther, 548. Howard v. Sexton, 132, 136, 248, 462, 663, 664. Howards. Stephenson, 223,252. Howard v. Thompson, 398, 419.421,428, 643,683. Howe V. Buffalo & Erie R. 11. 552. Howe V. Perry, 659, 686, 691. Howell V. Cheatem, 665. Howell V. Edwards, 705. Howell V. Howell, 477, 657, 691. Howell V. Pioneer Press Co. 692. lloyle i'. Cornwallis, 180. Iloyle V. Young, 197. Hoyt V. McKenzie, 93. Hoyt V. Smith, 686, 697, 598. Hoyt V. Thompson, 154. Huckle /•. Dale, 374. lliickle V. Reynolds, 199, 253, 027, 636. Hudson V. Garner, 593, 657. 42 TABLE OF CASES. Hudson V. Plets, 548. Huff V. Bennett, 1 07, 469, 528, 641 , 645. HufFer v. Allen, 716. Huffman v. Shumate, 621. Hughes V. Rees, 196, 213, 539, 597. Huohlev V. Hughlev, 178. Hull V. iBlandy, 554". Hull?;. Smith, 297. 298. Hull V. Vreeland, 512, 597, 699. Humber v. Ainge. 443. Hume V. Arrasmith, 184. Humphrey ;■. Doui;las8, 135. Humphreys r. ;Miller, 653. Humphreys v. .^tanfield, 257. Humphreys v. Stillwell, 424, 437. Humphries v. Parker, 662. Hungerford v. Watts, 238. Hunsborough v. Stinnett, 664. Hunt V. Algar, 4i)4, 525. Hunt V. Bell, 282. Hunt V. Bennett, 287,474, 529, 530, 538. 543,569,571,573. Hunt V. Goodlake, 273, 526, 583. Huntti. Jones, 262. Hunt V. Lane, 552. Hunt V. Merrychurch, 236. Hunt v.Thimblethorp. 235. Hunter v. French, 728. Hunter v. Hudson River R. R. Co. 502. Hunter v. Hunter, 205. Hunter v. Sharp. 380, 587. Hunter v. The Publishers of the Pall Mall Gazette, 3«0. Huntington v. Conkey, 519. Huntlej' V. Simson, 710. Huntley v. Ward, 440. Hurd V. Moore, 570. Hurd V. Shaw, 697. Hurrellv. Ellis, 358. Hurtert v. Weines, 543, 639, Huson V. Dale, 684. Hutch V. Potter, 660. Hutchins v. Blood, 566. Hutchinson f. Wheeler, 684. Button V. Beech, 313. Hutts V. Hutts, 2u7, 570. I'Anson v. Stewart, IbO, 256, 264, 357, 359, 591, 60.5. Idolv. Jones, 208, 255. llderton v. Uderton, 154. Ingalls V. Allen, 174. Ingobath v. Jones, 236. Ingram v. Ferguson, 478. Ingram v. Lawson, 172, 174, 296, 334, 363, 537,594. Ings V. London 7. Kelly V. Tiiding, 488, 500. Kemp V. Housgoe, 312. Kendall v. Stone, 172, 173, 328, 337, 664. Kendillon v. IMaltby, 330, 394, 397. Kenedy v. The People, 124. Kennedy v. Dear, 357. Kennedy v. GifFord, 184, 185, 188, 35:;, 664. Kennedy v. Gregory, 855, 692. 580, 494. 331, 194, 343, 197, Kennedy v. Hilliard, 386. Kennedy v. llolborn, 682. Kennedy v. Lowry, 539, 575. Kenney v. McLoughlin, 352, 542. Kent V. Bonzey, 687. Kent V. David, 612. Kent V. Pocock, 312. Kerle v. Osgood, 312. Kern v. Towsley, 2it5, 243, 560. Kerr v. Force, 188, 234, 265, 266, 268, 362, 374, 528, 529, 605, 608, 610, 61 1. Kerr v. Shedden, 336. Kerrains v. The People, 672. Kerschbaugher v. Slusser, 575, 576. Kershaw v. Bailey, 384. Ke^'ter v. Leroux, 436. Key worth i'. Hill, 162, 552. Keyzor v. Newcomb, 308 Kidder v. Parkhurst, 384, 429. Kiene v. Ruff, 570. Killick V. Barns, 235. Kilmore v. Abdooluh, 535. Kimmel v. Kinmiel, 85. Kimniis v. Stiles, 244. Kincade v. Bradshaw, 674, 675. Kine v. Sewell, 349, 418, 445, 459, 639, 658. King V. Bag'jc, 191. King's Case, 255, 264. King V. Fislier, 405. King V. Lake, 73, 180, 186, 224, 377. King V. Parsons, 359. King V. Root, 85, 398. King V. Sea Ins. Co., 384. King V. Shore, 303, 304. King V. Townsend, 384, 596. King V. Waring, 159, 466, 478, 597, 657. King V. Watts, 328, 446, 596. King V. Whitley, 621. King V. Wood, 183, 258. ' Kingsley v. Bill, 539. Kinuersly v. Cooper, 181. Kinney v. Hosea, 221, 224, 538, 657. Kinney v. Nash, 288, 289, 293, 311, 623, 653. Kinyon v. Palmer, 264, 265. Kirby v. Simpson, 635. Ku-k V. Nowell, 603. Kirkaldy v. Paige, 522, 666. Kirksey v. Fike, 204. Kirwan v. Dennan, 362. Kirwan v. Tally, 267. Kitclienman v. Skeel, 540, Klein v. Hentz, 549. Kleizer v. Symmes, 413. Klinch V. Colby, 384, 429, 461, 668. Kline v. Shuler, 703. Kloppenberg v. Neefus, 5 1 1 Khimph V. iJunn, 154, 659. Kneeland v. Rogers, 552. Knickerbacker v. Colver, 478. Knickerbocker Ins. Co. v. Ecclesine, 511. Knight V. Foster, 353, 538, 674, 685, Knight V. Gibbs, 318, 323, 452. 44 TABLE OF CASES. Knight V. Jermin, ^HS. Knight V. Knight, 406. Knight t). Wilcox, 111, 112. Knightley v. Birch, 5-40. Knightly v. Marrow, 586. Knobel v FuUei", 685. Koenig v. Ritchie, 433, 457. Kramer v. Waymark, 547. Krc'ba v. Oliver, 450. Krom V. Schoonmaker, 133, 476. Kunkell v. Markell, 662. Labrow v. Woratn, 545. Lacy V. Mitchell, 708. Lafone v. Smith, 478. 544. Laine v. Wells, 672. Laird v. Taylor, 709, 713, 724. Lake v. Hiiiton, 357, 359. Lake v. King. 382, 384, 420. Lambert v. Pharis, 679. Lamb's Case, 571. Lamb v. Galland, 716. Lamos v. Snell, 678, 679, 680. Lancaster v. French, 302. Lancey v. Bryant, 532. Landis v. Slianklin, 674, 684. Lane v. Applegate, 478. Lane v. Howman, 608. Lang V. Gilbert, 243, 272. Langdon v. Youug, 155, 228. Lange v. Benedict, 395. Langley v. Colson, 236. Lansing v. Carpenter, 263, 311, 314. Lansing v. Smith, 61. Lanter v. McEwen, 660. Larkin v. Koonan, 421, 635. Larkins v. Tai-ter, 356. Earned v. Buffiiigton, 659, 686, 687, 688. Lassels v. Lassels, 312. Lathrop v. Hyde, 383, 418. Latimer v. Tv'est. Morning News Co., 235, 346, 389, 5n2. Laughlin v. Clawson, 712. Laughton v. Bishop of Sodor and Man, 423, 429, 459. Laurie v. Wells, 241. Law V. Cross, 523. Law V. Scott, 474, 644. Lawler v. Earle, 440, 684. Lawless v. Anglo-Egyptian Cotton Com- pany, 430, 451, 502. Lawrence v. Smith, 96, 97. Lawson's t^ase, 161. Lawson v. Hicks, 385. Lawton v. Hunt, 605. Lawyer v. Loomis, 671, 702, 705, 723, 724. Lawyer v. Smith, 541. Lay V. Liiwson, 432. Layer's Case, 643. Layton v. llairis, 72. 164, Lea V. Robertson, 522. Lea V. "White, 382, 388. Leach v. Thouias, 539. Leddy v. Tousey, 85. Lee V. Bennett, 649. Lee V. Huson, 660. Lee V. Kane, 573. Lee V. Robertson, 243, 668. Lee V. Swan, 292. Lee V. Village of Sandy Hill, 166. Leet V. Hart, 232. Le Fanu v. Malcolmson, 175, 285, 551, 591. Lehman v. City of Brooklyn, 102. Leicester v. Walton, 685. Leigh V. Webb, 702. Leister v. Smith, 355, 692. Le Merchant's Case, 643. Lent V. Butler, 522. Lentall's Case, 254. Leonard v. AUeu, 176, 651, 657, 662, 680, 681. Leonard v. Pope, 548, 660. Lester v. Ferryman, 716. Lester v. Thurmond, 392. Lester v. W'right, 690. Lettman v. Ritz, 575. Letton v. Young, 660, 666. Lever v. Torrey, 537. Levermore v. Martin, 245. Levi V. Milne, 529, 531, 542. Lewin v. Edwards. 539. Lewis V. Acton, 198. Lewis V. AUcock, 123. Lewis V. Babcock, 550. Lewis V. Black, 245, 363, 566. Lewis V. Chapman, 131, 136, 297, 447, 453, 52.5, 662. Lewis V. Clement, 404. Lewis V. Few, 387, 414, 417, 475, 517, 643. Lewis V. Hawley, 297, 298. Lewis V. Higgins, 393. Lewis V. Levy, 197, 397, 402, 403, 405, 409, 411. Lewis V. Niles, 353. Lewis V. Soule, 174, 244. Lewis V. Walter, 215, 277, 2S2, 354, 356, 402, 608, 624. Lick V. Owen, 687. Liddle v. Hodges, 132, 441, 462, 658. Lidster v. Borrow, 510. Life Asso. of America v. Boogher, 97, 180. Like 7K McKinstry, 337, 344, 345. Lillard v. Carter, 722. Liilie V. Price, 137, 672. Linck V. Kelly, 249. Lincoln v. Chrisman, 663, 680. Linden v. Graham, 172, 337, 344. LindenmuUer v. The People, 104. Lindley v. Horton, 266, 296. Lindsey v. Smith, 2o3, 311, 568, 580. Linney v. Malton, 249, 688. Linviile v. Early wine, 154, 228. Lipe V. Eiseiderd, 112. Lister v. McNeal, 635. Lister v. Ferryman, 380, 436, 721. TABLE OF CASES. 45 Lister v. "Wright, 154. Litman v. West, 304. Little V. Barlow, 230. Little V. Cieraents, 533. Little V. Ponieroy, 396. Littlejobn v. Greeley, 132, 138, 208, 287, 292, 519, 602. Littler v. Thompson, 400. Litton V. Young, 541. Livingston v. Cheatham, 206. Livingston v. Rogers, 539. Lloyd V. Morris, 539. Lockwood V. Lockwood, 62. Logan V. Steele, 199, 212. London v. Eastgate, 302, SOI. Long V. Brougher, 363, 374, Long V. Cliubb, 655, 663. Long V. Eakle, 476, 531. Long V. Fleming, 632. Long V. Hitchcock, 548. Long V. Long, 549. Long V. Rogers, 704, 709. Longman v. Pole, 551. Loomis V. Swiek, 657, 622. Loubz V. Hafner, 01. Longhead v. Bartholomew, 519. Lounds V. Delaware, &c. R. R. Co. 138. Lovett V. Weller, 343. Lowe V. Ilarwood, 109, 172, 343. Lowenstein v. The People, 117. Lowsw. Telford, 718, 727. Loyd V. Pearse, 230. Lucan v. Cavendish, 512, Lucan v. Smith, 003, 004, 673. Lucas V. Flyno, 253, 256. Lucas V. Nichols, 250, 524, 665. Ludwell V. Hole, 300. Lukehart v. Byerley, 192,210,224,573,581 Lumby v. Allday, 2S8, 295, 618. Lumley v. Gye, 828. Lurapkins v. Justice, 190, 554. Lutham v. Berry, 687. Luther V. Skeen, 679, 682. Lyle V. Classon, 110, 145, 149, 539, 571. Lym V. Hockley, 202. Lynch v. Henderson, 513. Lynch v. Knight, 318, 327._ Mc Alexander v. Harris, 252, 693. McAlister v. Sibley, 683. McAnnally v. Williams, 205, McBean v. "Williams, 633. McBrayer v. Hill, 249, 250. McBride v. Ellis, 267. McCabe v. Cauldwell, 399, 410. McCabe v. Platter, 656, 678. McCaleb v. Smith, 209, McCampbell v. Thornburgh, 682. McCann v. Benjamin, 419. McCarty v. Barrett, 207. McCarty v. De Best, 551. McClaughry v. Wetmore, 245, 247, 579. McClintock v. Crick, 622, 688. McClurg V. Ross, 213, 229. McCluskey v. Cromwell, 171,586. JJcConnel'l v. McCoy, 021. McConnell v. McVenna, 621. McCoombs v. Tuttle, 150,622, 640, 649. McCorkle v. Binns, 137, 204,.260,645. McCormick v. Sisson, 704, 7o9, 722. McCue V. Ferguson, 176. McCue V. Tribune Association, 514. McCuen v. Ludlum. 212, 221. 223, 229, 254. 314,316,579. McCuUough ;•. Mclntee, 430. McDanieri'. Baca, 172, 337, 342, 344. McDonald v. Brooke, 722. McDonald v. Dun, 573. McDonald v. Murcliisou, 005. McDonald v. Rooke, 722. McDonald v. Woodruff, 167, 352. McDougall V. Claridge, 438. McDougall V. Sharp, 541. McDougall V. Tyrrell, 293. McDowell V. Bowles, 250, 310. McFadzen v. Mayor of Liverpool, 502. McGee v. Sodusky, 650. McGee v. Wilson, 222,248. McGlenery v. Keller, 660, 675. McGongh V. Rhodes, 244, 248,555, 012. McGovern v. McNamara, 388. McGovern v. Manifee, 178, 650. McGowan v. Manifee, 687. McGrath v. Cox, 642. McGregor v. Gregory, 181, 195, 215, 601, 618. McGregor v. Thwaites, 263, 357, 398. McGuire v. Blair, 311. Mcintosh V. Matherly, 640. Mclntyre v. McBean, 428, 438. Mclvor V. Mc<."abe, 154. McKee v. Ingalls, 130, 230, 477, 022, 657, 058. McKennon v. Greer, 240. McKinley v. Rub, 187, 248, 302, 524, 528, 075. McKown V. Hunter, 070, 704, 721. McLaughlin v. Bascoin, 170,523. McLaughlin v. Russell, 170, 648, 653, McLeod V. Murphy, 291. McLoughlin v. Dwyer, 646. McManus v. Jackson, 244, 258, McMillan v. Boucher, 478. McMillen v. Birch, 259, 279, 309, 392. McNab V. McGrath, 199, 237. McNally v. Oldham, 78, 309, 399, 597. McNamara v. Shannon, 210, McNaught V. Allen, 032. McNeely v. Driskill, 702. McNuttii. Young, 078. McPherson v. Dauiels, 137, 138, 354. McQueen v. Fulghan, 250,325, 551. Mc Williams v. lloban, 722. Macauley v. Shackel, 514, 646, Macdougall v. Maguire, 019. MacGill^ Lx parte. 383. Mackay v. Foid, 257, 391. Macleod v. Wakely, 488, 46 TABLE OF CASES. Maconnehey v. Tlie State, 4*76. Maddox v. McGinnis, 728. Madison Ave. Btiptist Church, Re, 337. Magee v. >tnvk, 24(i. Maguire v. Knox, 58*7. Mair )•. Culj, 346. Maitland /•.■Bramwell, 421,423,436,451. Maitland v. Goldney, 109,122,136,285,354. Malachy v. S.iper,'l72, 336, 337, 343, 344, 345. Mallison v. Sutton, 174. Malone v. Stewart, 248, 258, 296. Malone v. Stillwell, 162. Maloney v. Bartley, 117, 398, 645. ilalony v. Dows, 154,594. Malny V. Dao-nal, 220. Manby v. Witt, 351, 460,469. Mangan v. Atterton, 166. Manlv V. Cory, 631. Manning v. Clement, 282. 357, 604. Manning v. Fitzherbcrt, 597. Mapes V. Weeks, 353, 355,356, 687. IMarbourg v. Smith, 728. March v. Davison, 190, 282, 306, 514. Maretzek v. Cauldwell, 610,616. Markett v. Comm'rs of Hearne Bay, 97. Markliam v. Russell, 534, 603, 691. Marriner v. Cotton, 311. Marsden v. Henderson, 591. Marsh v. Elsworth, 385, 386, 387. Miirsh V. Marsh, 145. Marshall r. Addison, 253. Marshall v. Dean, 246. Marshall ('. Gunter, 383, 388,528,539. Marshall v. ilartin, 544. Margton v. Dennis, 254. Martin v. Desnoyer, 208. Martin v. Hooker, 656. Martin v. Kennedy, 512. Martin v. Loei, 652. 687. Mai tin v. Mattison, 597, 699,728. Martin v. Melton, 244. Martin v. Nutkin, 62. Martin v. Stillwell, 221, 223,253. Martin v. Strong, 451. Martin v. Van Schaick, 167. Martindale v. Murphy, 249. ■ Martinere v. Macka}', 194. Martyn v. Burlings, 304. Martyn v. Williams, 636. Marzetti v. Williams, 62, 297. Masham v. Bridges. 312. Mason v. Keeling, 476. Mason v. Mason, 657. Mason v. Thompson, 196. Mast en v. Deyo, 719, 722. Matson v. Buck, 685. Matthew v. Crass, 256, 320. Matthews v. Beach, 409, 528, 530, 534, C17 619. Matthews v. Davis, 676, 679, Matthews v. Huntley, 656. Mawe V. Pigott, 2G5, 271, 273, 276, 529. Maxwell V. Allison, 174. Maxwell v. Hogo:, 95. May V. Brown, 625, 649, 689, 693. JIavbee v. Avery 675. Maybee v. Fisk, 170, 175, 188. Mayer, He 4(t8. Mayer v. Schleichter, 249. Mayer v. Walter, 702, 705, 706, 709. Maynard v. Beardsley, 650, 690, 693. Maynard v. Fireman's Ins. Co. 273, 502, 570. Mayne v. Digle, 224. Mayne v. Fletcher, 164, 168, 646. Maj^o V. Sample, 252. Mayott V. Gibbons, 235. ]\Iayrant v. Richardson, 266, 475. May son v. Sheppard, 240, 541. Mead v. Daubigny, 663. Mead v. Perkins, 304. Meade v. Axe, 171. Mears v. Griffin, 535, 542. Mebane v. Sellars, 244. Medaugh v. Wright, 660. Mellor V. Baddeley, 706, 728. Melton i: The State, 263. M'Elveney v. Couellan, 643. Mercer v. Sparks, 137. M(rcer v. Whall, 519. Merchants' Bank v. Curtis, 478. Merk v. Gelshaeuser, 674. Merriam v. Mitchell, 716. Merriil v. Peaselee, 622. Merryweather v. Nixon. 552. Mersey Nav. Co. ?i. Douglass, 155. Meserole v Goldsmith, 96. Metcalf V. Brooklyn Life Ins. Co. 722. Metcalf w. Markham, 512. Metcalf V. Williams, 642. Metropolitan Saloon Unmibus Co. v. Haw- kins, 505, 516. Meyer v. Bohlfing, 662. Meyer v. Schultz, 617. Mezzara's Case, 179. Middleton v. Earned, 643. Middleton v. Walker, 524. Milam v. Burnsides, 398. Miles V. Harrington, 688. Miles V. Oldiield, 25?, 256. Miles V. Spencer, 352, 356. Miles V. Van Horn, 183, 250, 251, 575, 635, 656. Miles V. Weber, 462. Miles V. Weston, 699. Miller v. Brown, 701. Miller v. Buckdon, 2i>5. Miller v. Butler, 158, 159, 176, 263, 561, 653, 658. Miller's Case, 260. Miller V. David, 272,317. Miller v. Deere, 706. Miller v. Fenton, 552. Miller v. Graham, 603. Miller v. Gunn, 548. Miller )■. Hope, 395. Miller v. Houghton, 251. TABLE OF CASES. 47 Miller v. Johnston, 459. Miller v. Kerr, 355, (■>tj4. Miller v. Maxwell, 174, 181.- Miller v. Miller, 190, 199, 223, 252, 621, 622. Miller v. MiUigan, 704, 707, 716, 718, 724, 726. Miller v. Pnrisli, 222, 250, 561, 591. Millett V. Hulton, 264, 690. MiUigan v. Thorn. 568, 580, 597. Millison v. Sutton, 668. Mills V. Monday, 146. Mills V. Taylor, 202, 238. Mills «;. Wirap, 222. 253. Milton V. Elmore, 728. Minesinger v. Kerr, 532, 678, 683, 685. Minnas v. Johnson, 552. Minter v. Stewart, 217. Mitchell V. Borden, 373, 615. Mitchell V. Jenkins, 129,709,723. Mitchell V. Kerr, 384. Mitchell V. Uilliams, 711. Mix V. Woodward, 174, 176, 205, 528, 586, 664. Moberly v. Preston, 248, 254, 352, 354, 356. Moffat (-. Sackett, 542. Moffatt V. Caldwell, 275. Moises V. Thornton, 307, 565. Moloney v. Bartley, 505. Molony v. Dows, 154. Monkman v. Shepherdson, 214. Montgomery v. Deeley, 228. Montgomery v. Richardson, 603. Muntifiori v. Montitiori, 692. Moody V. Baker, 327, 329, 541. Moody V. Libbey, 546. Moon V. Towers, 166,726. Moor V. Foster, 292. Moor V. Roberts, 514. Moore v. Ames, 394. Moore v. Bloxam, 313. Moore v. Bond, 621. Moore v. Bntler, 523. Moore v. Clay, 691. Moore v. Edmiston, 600. Moore v. Horner, 247. Moore v. Meagher, 316, 318, 596. Moore v. Oastler, 648, 691. Moore v. Stevenson, 374, 657,661. Moore i. Synne, 291. Moore v. Terrill, 370. Moorhead v. Brown, 299. More V. Bennett, 193,264, 547. Morehead v. Jones, 187, 684. Morey v. Newfane Township, 478. Morgan v. Hughes, 728. Morgan v. Lingen, 260, 267, 296. Morgan v. Livingston, 176, 178,240,24 567, 622,653,666. Morris v. Barker, 661, 685. Morris v. Barkley, 254. Morris v. Corson, 704. Morris v. Duane, 355. Morris v. Langdale, 280, 281, 291, 327, 678. Mori'is V. Scott. 703, 727. Morrison v. Belcher, 49-1. Morrison r. Tlarmer, 370, 543,676. Morrison v. Moat, 407. Morrow v. McGnver, 362, 623, 636. Mortliland v. Cadell, 175. Moscati V. Lawson, 552. Moscley v. Moss, 357, 574, 581, 593. Moshier v. Utica & Sch. R. R. Co., 61. Mostyn v. Fabrigas, 154. Motley V. Slany, 237. Molt V. Comstock, 297, 298. Moulton V. Bfccher, 704. Moulton V. Clapham, 408. Mountney v. Walton, 215,361,404. Mousler v. Harding, 688. Mower v. Watson, 247. Moyer v. Mover, 686. Mover v. Fine, 374, 685. Muchlcr V. Mulhollcn, 247. Muc'k's Case, 588. Mulkcrn v. Ward, 95. Mulligan v. Cole, 274,430,529,532. Mulvehall v. Mil ward, 112. Muma V. Llarmer, 352, 608. Mumfries' Case, 210. Munn V. Morewood, 192. Munns v. Dupont, 7o7, 716, 719. 722, 724. Murphy v. Antley, 209. Muriihy v. Halpin, 433. Murphy v. Larson, 712. Murphy v. Killett, 452. Murphy v. Stout, 668. Murray v. Benbow, 97. Murray v. DeGross, 511. Murray v. McLane, 381, 709, 712, 722, 723. Mui'ra'y v. McSwiaey, 510. Murray v. Murray, 250. Musgrove v. Bovey, 309. Myers v. Curry, 541, 678. Myers v. Dresden, 170. Myers v. Malcolm, 661, 691. Naber v. Miecock, 190. Nail V. Hill, 612. Napier v. Daniell, 540, 674. Nash V. Benedict, 265. 621, 661, 690. Neal V. Lewis, 539, 541. Neal i>. Mallard, 261. I Nearing v. Bell, 520. Needham v. Lowling, 391. Nelson v. Borchenius, 256, 803, 533, 651. Nelson v. Evans, 363. Nelson v. Musgrave, 21 2, 266, 365.. Nelson v. Patrick, 215. Nelson v. Robe, 388. 5 Nelson v. Staff, 257, 321. Nesmith v. Atlantic Mutual Ins. Co. 519. Nestle V. Van Slyke, 567, 622. Netle V. Harrison, 542. Nettleton v. Dinehart, 547. Newbit V. Statuck, 243, 674, 675. 48 TABLE OF CASES. Tfewbrnugh v. Curry, 78, 568. Newfit-ld v. Copperman, 421, 702, 703. New Haven R. R. Co. v. Schuj^ler, 502. Newlyn v. Fasset, 226, 252. Newman v. Bailey, 609. Newman v. Goddard, 154. Newman r. Harrison, 616. Newman v. Otto, 616, 617. Newsam v. Carr, 712. Newton v. Boodle, 511. Newton v. Masters, 253. Newton v. Rowe, 511, 549. Newton v. S'.ubbs, 312, 574. Nicholas v. Badi;er, 252, 253. Nicholls V. Reeve, 539. Nichols V. Badger, 259. Nichols V. Guy, 259. Nichols V. Packard, 544, 579, 580, 581. Nichols V. The People, 184. Nicholson v. Coghill, 710. Nicholson v. Lynes, 295, 309. Nicols V. Hayes, 237, 622, 626. Niven v. Munn, 248, 567, 577. Nixon's Case, 407. Noah's Case, 275. Nolton V. Moses, 535. Noonau v. Orton, 441, 551, 597. Norden v. Oppenheim, 388. Norman v. Simons, 325. Norris v. Elliott, 572, 641. Norris v. Smith, 510. Northern Railroad v. Miller, 130. Norton v. Gordon, 621. Norton v. Ladd, 182. 208. Norwich, Bishop of. Case, 308. Novion V. Hallett, 154. Nutt's Case, 163, 168. Nutting V. Goodridge, 248. Nye t)."Otis, 209, 212, 575. Oakes v. Barrett, 541. Oakley v. Farrington, 256, 293. Obaugh V. Finn, 263, 300. O'Brien v. Barry, 703. O'Brien v. Bryant, 363. O'Brien v. Clement, 174, 263, 478, 483, 568, 604, 672. O'Brien v. The People, 476. O'Connell v. Mansfield, 201, 215, 361, 602. O'Conner v. O'Conner, 617. O'Connor v. Lloyd, 196. O'Connor v. WaJlen, 611. Oddy V. Paiilet, 455. Odgen V. Riley, 178, 190, 208, 210. Odger V. Mortimer, 498, 543. Odiorne v. Bacon, 230, 256, 283, 300, 362. O'Donaghue v. Hussey, 689. O'Donaghue v. McGovern, 298, 413, 420, 422, 433, 672. O'Driscoll V. M'Burney, 702. Oflfutt V. Early wine, 154, 228, 674. O'Gara v. Eisenlohr, 118. O'llanlon v. Myers, 230, 259, 309. Ohio R. R. V. Kasson, 438. O'Keefe v. Cullen, 603, 601. O'Keefe v. Earl of Kingston, 355 O'Kesson v. Barclay, 478. Oldham v. Peake, 588. Oliver v. Bentinck, 397, 643. Oliver v. Pate, 712. Olmstead v. Brown, 318, 325, 329. Olmstead v. MiUer, 320, 621, 650. Ombouy v. Jones, 298. Onslow V. Home, 67, 109, 225, 264, 288, 314. Opdyke v. Marble, 514. Opdyke v. Weed, 138, 573. Oram v. Franklin, 290, 311. Ormsby v. Brown, 603. Ormsby v. Douglass, 362, 456, 668. Orpwobd v. Parkes, 214, 627. Orr t'. Skofield, 301. Orton V. Fuller, 236, 243. Orvis V. Dana, 607. Osborn v. Forshee, 568, 639. Osborne v. London Dock Co. 514. Osterman v. Bateman, 713. Ostrom V. Calkins, 281, 297, 298, 541, 693. Oswald's Case, 65. Owen V. McKean, 248, 512, 683, 684. Owens V. Roberts, 435, 436. Owseley v. Moutgomerj^, : Shepherd, 313. Williston V. Smith, 687. Willymote v. Welton, 242. Wilmarth v. Mountford, 708, 723, 724. Wihnot V. McCabe, 514. Wilner v. Hold, 238, 239. Wilson V. Barnett, 250, 439. 6o TABLE OF CASES. Wilson V. Beighler, 362, 555, 602. Wilson V. Cloud, 248. Wilson V. Collins, 395. Wilson V. Crow, 236. Wilson 0. Fitch, 374, 608, 653, 677. Wilson . " A person may exercise a right in such a way that it becomes a wrong." (Lord Sidmouth, Popular Progress in England, 332.) 90 RIGHTS AND DUTIES. [CH. III. wrong or not a wrong. The rule that for every wrong the la\v provides a remedy holds true only by postulating that only that act is a wrong for which the law provides a punishment or a remedy. The rule that for every wrong the law provides a remedy is not universally true, because sometimes although a wrong has been committed, the subject of the wrong is by some means estopped from claiming any redress. The formula by which this rule is expressed is, that one cannot take advantage of his own wrong. An act may be such as not to be obnoxious to every remedy, but if it is obnoxious to any remedy it is a wrong. § 44. Different laws prescribe different rules of right and duty, and where there are courts of different jurisdic- tions, that may be a wrong in one jurisdiction which is not a wrong in another; as where there are civil and criminal courts, and as in England where there are com- mon-law courts and ecclesiastical courts. We may some- times determine of any act whether or not it is a wrong, by inquiring whether or not the law provides for it any remedy or punishment. There can be no civil right where there is no remedy.' " It is a mockery to talk of existing rights without applying corresponding remedies."^ If there is no remedy we conclude there is no wrong — meaning, of course, legal wrong. This, it must be con- ceded, is an illogical and inverse method of arriving at the desired conclusion, but we find it oftentimes resorted to, as the best attainable standard by which to determine of any act if it be a wrong.^ § 45. Wrongs which only affect society in general, and so far as they affect society in general, are distin- ' Bank of U. S. v. Owens, 2 Peters, 539. * Fowler v. Lindsay, 3 Dallas, 413. ^ "The remedy may always be referred to as illustrating the right, and e con- verso." (Van Rensselaer v. Jones, 2 Barb. 656.) §§ 4^, 47-] WRONGS AND REMEDIES. gi guished from wrongs affecting only individuals by de- nominating them crimes. Hereafter we shall invariably use the term wrong to signify an act injuriously affecting only individuals. Wrongs are direct or indirect. Direct wrongs are those where the act done may h^ per se a vio- lation of a right — a blow is of this character. Indirect wrongs are those where the act done cannot be per se a violation of a right, and only becomes a violation of a right by reason of some consequence resulting from that act. The act of publishing language is of this character. § 46. We are accustomed to describe law as the su- preme power in the State, commanding what is right and prohibiting what is wrong; but this, besides being un- true,' does not aid in determining what is a legal right or a legal wrong. So, too, a wrong is correctly enough de- scribed, not defined, as an invasion of a right, but unless or until we know what is a right, we cannot know w^hen a rip:ht has been invaded. § 47. If we could catalogue rights, and distinguish each by an intelligible and unvarying definition, we should then have no difficulty in ascertaining when a wrong has been done. But the nature of a right forbids any such proceeding. We do, indeed, find text writers and judges speaking of the right of speech, the right of the press, and the right of property. Blackstone, and others fol- lowing him, state that the absolute natural rights are the rights of life, liberty and reputation. Text writers also speak of relative rights and tangible rights, but all these are mere words, entirely illusory, capable of no practical application. The utmost that can be derived from all that has ever been written on this subject is, that a man has some rights pertaining to his person, his property and his reputation ; the nature of a right is nowhere at- ' See Chisholm v. State of Georgia, 3 Peters' Cond. R. 74. g2 RIGHTS AND DUTIES. [CH. III. tempted to be defined or explained, except in the illogical way of stating a rule with a multitude of exceptions, leaving us in doubt as to each particular case which arises, whether it comes within the rule, or is one of the excep- tions. § 48. While defining a wrong as an invasion, meaning every invasion of a right, text writers have contented themselves with speaking of the absolute right of prop- erty, the absolute right of reputation, &c.^ Now, if the words " absolute right of property " have any meaning, they must mean that one has such a right to his property that no one may, under any circumstances, take it from him ; and if this be so, and every invasion of a right be a wrong, it must follow that every deprivation of property • " Rights of persons are divided into absolute and relative, i Chit. PI. 137. This classification is recognized by all elementary writers. 2 Kent's Com. 129 ; 3 Bl. Com. 138." (Delamater v. Russell, 4 How. Pr. R. 235.) "The character of indi- viduals is unquestionably one of their absolute and personal rights. It is, therefore, unnecessary to make any distinct affirmation that the protection of it most imme- diately falls within the common law. Reputation, indeed, is not only one of our perfect rights, but that which alone gives a value to all our other rights." (Holt on Libel, p. 15.) " The security of his reputation or good name, from the arts of de- traction and slander are rights to which every man is entitled by reason and natural justice." (i Bl. Com. book I, ch. i.) "The use of the law consisteth principally in these three things : * * * * m. For preservation of men's good name from shame and infamy." (Bacon's The Use of the Law.) His Lordship says nothing further on the subject in that essay. Slander or libel is an infringement of the absolute rights of persons. (Parker, J., Delamater v. Russell, 4 How. Pr. R. 235.) "Whether reputation be by the law of nature one of the absolute rights of persons or not, the common law of England does not so consider it. The law of unwritten slander is incompatible with it, and in part establishes a different principle. For it would follow from that principle, and he evidently means by it, that no man can lawfully say or publish anything to the disadvantage of another, even though it be true, and he is prepared to prove its truth." (i Mence on Libel, 132.) Blackstone and others, translating /f;w«^, per- son, instead of status or condition, place among the rights of persons the right of personal security, the reputation, &c., whereas the right to reputation is among the rights in rem. (Edinburgh Review, Oct., 1863, p. 239, Amer. Reprint.) The right which Blackstone styles the right of reputation is original or innate as opposed to acquired. This right has no connection with a natural right in the other sense of the term. Blackstone has confounded them, and, supposing the right of reputation to belong to the law of persons, has called it an absolute right of persons. (2 Aus- tin's Lect. on Juris. 268, 476 ; 3 Id. 179.) § 49-] WRONGS AND REMEDIES. 93 is a wrong;. We know this is not true ; one may be de- prived of liis property in many ways without a wrong being done. A man's property may be taken from him directly for public use, on making due compensation, or it may be taken from him to satisfy his. obligations, and it may be indirectly taken from him in many ways by acts subjecting him to loss, for which the law affords him no remedy. So, too, if the supposed right to reputation be an absolute right, then every invasion of it must be a wrong ; but reputation is often invaded without such in- vasion amounting to "a wrong," hence the inutility, for any practical purpose, of the definition of a wrong as an invasion of a right. The truth is, that a man has the right to the uninterrupted enjoyment of his property to such an extent only, and subject to such conditions, as the general welfare of the community demands, and so of reputation. It must be, therefore, that instead of saying of one he has an absohtte right to property or reputation, we should say he has a right thus and so, describing it with such limitation and qualification as will make it true that every interference by another with such an enjoy- ment of it will amount to a wrong. This may be diffi- cult, or it may be impossible ; if the latter, as we conceive it to be,' let the attempt be abandoned, but it furnishes no reason for describing that as an absolute right which is something else. " It is difficult to say when night ends or day begins, or to draw the line between them, yet day and night are not the same thing." ^ § 49. It is not so proper to say that the law prescribes ' "The time is passed when * * * * it was believed that everything was strictly definable, and must be compressed within the narrow limits of an absolute definition before it could be entitled to the dignity of a thorough discussion. The hope of being able absolutely to define things * * * * betrays a misconception of human language, which, itself, is never absolute except in mathertiatics. It mis- leads." (Lieber's Civil Liberty, 23.) ^ Att'y Gen'l v. Daken, Law Rep. 2 Ex. 295. 7 94 RIGHTS AND DUTIES. [CH. III. what is right, and prohibits what is wrong, as to say that law determines rights by prescribing duties, and inde- pendently of any positive enactment, all legal duties are comprised in this one prohibition. No one shall, ivithout a leo-al excuse, do or forbear any act, by which doing or forbearing there results a breach of the peace, i7ijury to the community, or damage to the person or property of another. § 50. What determines of any given act whether or not it is permitted, i. e., lawful ; or unpermitted, i. e., un- lawful ; whether there is or is not a legal excuse for the doing such act, is the occasion upon which it is enacted ; ' the occasion being the entire group of circumstances surrounding the act, including the actor, the patient or person acted upon, the kind of act, the manner of effect- ing the act, the motive of the actor, and the consequences of the act. It is the occasion to which we must, in every instance, refer to ascertain whether there was or was not a legal excuse for the act. Everything considered, was the act lawful or unlawful ? Was it in exercise of a right or performance of a duty } As it is manifestly impossible to preconceive or anticipate every possible group of cir- cumstances, so necessarily it is impossible to catalogue rights and duties — that is, to catalogue the acts which may or may not be done or forborne. § 51. The impossibility of framing such a definition of a right or of a duty as shall enable us to say of any par- ticular act by itself, that it is lawful or unlawful, is evi- dent. The utmost we can do is to say that an act done under a certain given state of circumstances is a permitted act, one the actor had the right to do, or that it is an un- permitted act, one the actor had not the right to do — that is, the doing of which it was his duty to forbear. ' Hosmer v. Loveland, 19 Barb. 115. § 52.] WRONGS AND REMEDIES. 95 § 52. The law, besides prescribing duties, provides the means called remedies for protecting rights and redress- ing wrongs. It will, in some cases, interpose by injunc- tion to prevent the perpetration of a wrong, but, as a gen- eral rule, the publication of an alleged libel will not be stayed by injunction.' • The Court of Star Chamber, which Lord Campbell described as a court of criminal equity (Emperor of Austria v. Day, 7 Jur. N. S. 483), and which descrip- tion was quoted with approval by Chief Baron Pollock (The Alexandria, MS.), was in the habit of restraining the publication of certain libels (Hudson's Star Chamber). After the abolition of that court, Chief Justice Scroggs, and the other judges of the King's Bench, prohibited the publication of a periodical called " The Weekly Packet of Advice from Rome ; or, the History of Popery." For this Scroggs was impeached (8 Howell's State Trials, 198). In Du Bost v. Beresford, 2 Camp. Rep. 511, Lord EUenborough said the exhibition of a libelous painting might be restrained by in- junction. That was an obiter dictum, and is said to have excited great astonishment in the minds of all the practitioners in the courts of equity in England. (Home's Case, 20 Howell's State Trials, 799, note ; 10 Campbell's Lives of the Chancellors, ch. ccxiii.) In Burnett v. Chetwood, 2 Merivale's Rep. 441, note, Lord Chancellor Parker granted an injunction to restrain the publication of a translation of a book from Latin into English, on the ground that the book in English might have a hurtful public tendency not likely to occur while the matter remained in Latin. In Bran- dreth v. Lance, 8 Paige, 24, the Chancellor, on demurrer to a bill praying an injunc- tion to restrain the publication of a libelous pamphlet, dismissed the bill on the ground that the court had no jurisdiction to interfere, no right to "literary or medi- cal property" being invaded; and see Hoyt v. McKenzie, 3 Barb. Ch. R. 320. In Clark v. Freeman, ii Beavan, 112 ; I2 Jurist, 149 ; 17 Law Jour. Rep. Ch. 142, the plaintiff, a physician, applied for an injunction to restrain the defendant from, among other things, publishing an advertisement so expressed as to raise the infer- ence that certain pills sold by defendant were sold by him on behalf of the plaintiff. The court held the advertisement in question amounted to a libel on the plaintiff, and dismissed the bill; because, to grant the injunction, "would imply that the court has jurisdiction to stay the publication of a libel, and I cannot think it has." This case is questioned in supplement to Drewry on Injunctions, 34, but not on the ground that the court had jurisdiction to restrain the publication of a libel ; and Clark V. Freeman is also questioned in Springhead Spinning Co. v. Riley ; and Dixon V. Holden, infra ; and in Maxwell v. Hogg, Law Rep. 2 Eq. 310. An in- junction to restrain the publication of an alleged libel was refused. (Mulkern v. Ward, Law Rep. 13 Eq. 619.) A person, whose name was on the register of persons whose notes had been pro- tested, applied to the Court of Session, in^ Scotland, for an interim interdict to pre- vent, so far as his own name was concerned, the publication of a copy of the register. The court decreed for the application. Held, by the Lords, reversing that decree, that the interdict ought not to have been granted. (Fleming v. Newton, i Ho. of Lords Cas. 363.) "The king has no authority to restrain the press." (Mansfield, Ch. J., Stationers' Co. v. Partridge.) An injunction was granted against the publi- cation of a notice stating that the plaintiff, a merchant, was a partner in a bankrupt 96 RIGHTS AND DUTIES. [CH. III. § 53. The ordinary mode of remedying a wrong is by an action. Actions were anciently commenced by orig- firm. (Dixon v. Holden, Law Rep. 7 Eq. 4S8 ; see also Springhead Spinning Co. V. Riley, Law Rep. 6 Eq. 551.) In an unreported case (Meserole v. Goldsmith) decided January, 1870, in New York, Justice Ingraham interdicted the publication of a circular purporting to be the report Of a trial relative to a patent right for paper collars. As to courts restraining reports of their proceedings, ?,te post, note to § 231. In Dixon v. Holden (Law Rep. 7 Eq. 488), Malins, V. C., says: "I go further, and say if it [the publication sought to be restrained] had only injured his [plaintiff's] reputation, it is within the jurisdiction of this court to stop the publica- tion of a libel of this description, which goes to destroy his [plaintiff's] property, or his reputation, which is his property, and, if possible, more valuable than any other property. In this case, I go on general principle, and I am fortified by authority. General principle is in its favor, but authority is not wanting. * * * * in the decision I arrived at, I beg to be understood as laying down that this court has juris- diction to prevent the publication of any letter, advertisement, or other document, which, if permitted to go on, would have the effect of destroying the property of an- other person, whether that consists of tangible or intangible property, whether it consists of money or reputation. Professional reputation is the means of acquiring- wealth, and is the same as wealth itself." For a time there was a decided leaning in the courts of equity towards extending their jurisdiction so as to enjoin the publi- cation of alleged libels, but it would seem to be now settled that the courts of equity have not any such jurisdiction. No injunction lies to prevent one alleging that a patent is an infringement of a previous patent. (See Whitehead v. Kitson, Supreme Court of Massachusetts, January, 1876, i Law & Eq. Rep. Cases in Brief, 487, cit- ing Boston Diatite Co. v. Florence Manuf. Co. 114 Mass. 69 ; Prudential Asso. Co. V. Knott, Law Rep. 10 Chan. 142.) " There is, therefore, no jurisdiction to enjoin against a wicked or libelous work merely on the ground of its mischievous charac- ter, and, on the other hand, if a work alleged to be copyright be tainted by immoral- ity, libel or fraud, it is not acknowledged as property at law, and in that case, or even if it be of a doubtful tendency, the Court of Chancery will not interfere. (Adams' Equity, 5th Am. ed. A. D. 1868, page 426 [216], citing Gee v. Pritchard, 2 Sw. 402 ; Du Bost v. Beresford, 2 Camp. 511 ; Wright v. Tallis, i M. G. & S. [Com. B. O. S.] 893 ; Southey v. Sherwood, 2 Meriv. 438 ; Lawrence v. Smith, Jac. 471.) Hovey v. Rubber Tip Pencil Co. 57 N. Y. 119, was an action to enjoin the de- fendants from publishing a circular claiming they were the owners of letters patent of an article of which the plaintiff was the patentee, and threatening prosecution for infringement on his [defendant's] patents. The action failed, chiefly on the ground that it involved the validity of a patent, and, therefore, the State Court had no juris- diction. In England an injunction was allowed restraining the defendant from pub- lishing that plaintiff was infringing his [defendant's] patent. (Rollins v. Hinks, Law Rep. 13 Eq. 355; Axmann v. Lund, Law Rep. 18 Eq. 330.) In Singer Sewing Machine Co. v. Domestic Sewing Machine Co. 49 Ga. 70, an injunction to restrain a publication alleged to be injurious to plaintiff's business was refused. An injunction was refused to restrain the defendants, the committee of an asso- ciation called "The Underwriters' Registry," from publishing to their subscribers against a report of a survey of plaintiff's ship, " class suspended ; " it was not libel- § 53-] WRONGS AND REMEDIES. 97 inal writ. These writs differed from each other according to the nature of the wronsf to be redressed. These writs ous, and defendants had the right to publish it. (Clover v. Royden, Law Rep. 17 Eq. 190.) The fact that plaintiff's reputation might suffer by his dismissal from the defend- ant's service is not a ground for equitable interference to prevent his dismissal. (Johnson v. Shrewsbury R. R. Co. 3 De G. M. & G. 926). The ApoUinaris Co. had prosecuted Fisher & Co. for an infringement of their trade-mark ; the prosecution was stayed on Fisher & Co. giving a written apology. The ApoUinaris Co. advertised this apology, whereupon Fisher & Co. applied for an injunction restraining the publication. The application was denied. (Fisher & Co. V. ApoUinaris Co. Law Rep. 10 Eq. 297.) In Life Asso. of Amer. v. Boogher (St. Louis Court of Appeals, Dec. 1876 ; 4 Cent. Law Jour. 40), it was held that a court of equity has no power to enjoin the threatened publication of a libel, though its publisher is insolvent and the damage will be irreparable. In Markett v. Comm'rs of Hearne Bay (24 Weekly Rep. 845), one of the defendants, a minister of the gospel, was restrained by injunction from publishing notice of an intended sermon on the subject of the suit then pending, and from preaching such sermon ; but the ground of the decision was that such sermon was a contempt of court. In 4 Cent. Law Jour. 170, is an article entitled, " Enjoining the publication of libels." By statute in Texas, a magistrate may put one under bonds not to publish a libel. "Injunctions had been granted against the piracy of the ' Dunciad,' not- withstanding its libelous passages ; and even against the piracy of Mrs. Bellamy's Memoirs, a work of notorious indecency. The law upon the subject had never been mooted, untU, in an action brought by Dr. Priestley, the great apostle of Unitarian- ism, against the hundred, for the destruction of his manuscripts in the Birmingham riot's. Lord Justice Eyre told the jury that if the evidence had shown the contents of the destroyed works to be in the nature of libels upon the government, he should have considered such proof as receivable against Dr. Priestley's claim. In this state of the law, an application was made by Dr. Walcot, the noted ' Peter Pindar,' for an injunction against the piracy of some of his works. Lord Eldon, grounding him- self upon the common law as stated by Chief Justice Eyre, refused the injunction, and laid down the principle, by which, from that time, this subject has been regu- lated. (Walcot V. Walker, 7 Ves. i.) In the later case of Mr. Southey's applica- tion for an injunction to restrain the sale of 'Wat Tyler,' a seditious work produced by him in early youth, which a bookseller, having casually obtained a copy of it, was .now unfairly publishing, Lord Eldon said, in giving judgment, ' It is very true that, in some cases, it may operate so as to multiply copies of mischievous publications by the refusal of the court to interfere by restraining them ; but to this my answer is, that sitting here as a judge, upon a mere question of property, I have nothing to do except with the civil interests of the parties ; and if the publication be mischievous, it is not my business to interfere with it.' " (Southey v. Sherwood, 2 Meriv. 435 ; and see Lawrence v. Smith, i Jacob, 471 ; and Edinburgh Review, May, 1823 ; 2 Life of Lord Eldon by Twiss, ch. Ixiii.) Lord Eldon refused an injunction to restrain the sale of a pirated edition of Lord Byron's "Cain," on the ground that it was a profane libel. (Murray f. Benbow, Jac. 474, note, noticed with other cases in Phillips on Copyright, 23.) Lord Camp- 98 RIGHTS AND DUTIES. [CH. III. were preserved in the chancery in The Register of Writs^ which register was printed and published in the reign of Henry VIII of England.' The most ancient writs pro- vided for the most obvious kinds of wrongs, as nuisance, waste, trespass, &c. ; but in the progress of society it seems that cases of injury arose new in their circum- stances, and not within any of the writs then known, and that the power to issue writs of a new kind was con- ceived not to exist without the authority of the ParHa- ment ; accordingly, by the statute of 13 Edward I, ch. xxiv, called the statute of Westminster the lid (say A. D. 1285), it was provided "That as often as it shall happen in the chancery, that in one case a writ is found, and hi a like case (in consimihi casii) falling under the same right, bell, in X Lives of the Lord Chancellors, page 255, reviews and criticises the deci- sions of Lord Eldon refusing to protect the copyright in libelous publications. In deciding Brandreth v. Lance {supra), the Chancellor referred to 2 R. S. 737, s. I, pt. IV, ch. xi, tit. 6, art. i. This section confers on courts the power to bind persons to give security to keep the peace in certain cases, and its last clause reads thus: "This section shall not extend to convictions for writing or publishing any libel, nor shall any such security be hereafter required by any court upon any com- plaint, prosecution, or conviction, for any such writing or publishing." The revisers, in their note to that section, say, in reference to the above-recited clause, that it is new, and "it is conceived that this provision virtually takes away from the courts the common-law power of binding over a party guilty of publishing a libel." As to the common-law power of binding to good behavior, see Hawkins' Pleas Cr. ch. Ixi, and Viner's Abridgment, tit. Good Behavior ; Highmore on Bail, 248. By Laws of i860, ch. cviii, § 20, p. 1007, every person in the city of New York, shall be deemed guilty of disorderly conduct "who shall use any threatening, abusive, or insulting behavior with intent to provoke a breach of the peace." The courts interfere by injunction to restrain the publication of letters written by a party or his testator to the defendant or others. (2 Stoi7's Eq. Juris. §§ 943 to 949 ; Woolsey v. Judd, il How. Pr. Rep. 49 ; 4 Duer, 379 ; Resp. v. Duane, i Binney, 98 ; 2 Stark. Slan. 268, note I.) ' One of the earliest refinements in forensic science was that of classifying the various subjects of litigation, and allotting to each class an appropriate formula of complaint or claim. Such was the practice in ancient Rome almost as early as the law of the twelve tables, and continued until the time of Constantine, who abolished the judicial fornniliE. T\\q%q formttlfs in the English law were called writs. How, or when, or whence introduced into England, is undetermined. (Stephens' PI. ch. i, and Id. appendix, note 2.) 4 Reeve's Hist. 426, 432. Original writs were abolished in England by statute 2 Will. IV, ch. xxxix. § 54-] WRONGS AND REMEDIES. 99 and requiring like remedy, no writ is to be found, the clerks in the chancery shall agree in making a writ," &c. Under the sancdon of this act, large accessions were made to the existing stock of original writs. These new writs were said to be issued upon the case, and the actions com- menced by them were designated actions upon the case, or actions of trespass on the case. Among this class was the action of trespass on the case for nwrds — the ancient form of the action— now known as the action of slander or libel, and which is the only civil remedy for slander or libel.' § 54. The consideradon of the course of procedure in an a'cdon pertains more properly to a subsequent stage of our inquiry. We will here merely remark that the rules by which we determine when a wrong has been commit- ted, and the rules of pleading, of evidence and of practice, although they have a certain interdependence, are in fact, and, if we would avoid confusion, must ever be re- garded as separate and distinct rules. Preliminary to at- tempdng an analysis of the wrongs, slander and libel, we shall in our next chapter consider what is the gist of the action for slander or libel. 1 Although the new writs were to be framed only in consimilu casu, " many writs were framed for various kinds of trespasses unknown in former ages." (Sullivan's Lec- tures Lect. 33 ; Stephens' PI. ?•) The first reported action of trespass on the case is said to be found 22 Edw. Ill, Ass. 41. (Reeve's Hist.) That would be A. D. 1349. We have not verified this statement, and doubt its correctness. The action on the case has its counterpart in the actio utilis of the Roman Law. (See 2 Austm's Lect. Jur. 303.) CHAPTER IV. WHAT IS THE GIST OF THE ACTION FOR SLANDER OR LIBEL. History silent as to the introduction of the action for slander — Hypothesis necessary — How the law pro- tects rep7itation — Fiction — Pecuniary loss the gist of the actions for slander and libel. § 55. It is not known with certainty, or, rather, all are not agreed, either as to the origin of the remedy by action for slander or libel, or as to the gist of such an action, and and neither history nor judicial decision furnishes any satisfactory solution of these doubts. We know, indeed, that all nations have recognized the capacity for injury in- herent in language, and have provided some means for punishing offenses arising from an abuse of the gift of speech ; but we seek in vain among these laws for a clew to the principles by which at this day we may determine when a wrong by slander or libel has been occasioned, and when we may properly invoke the remedy, by action for slander or libel.' As the action of trespass on the ' After a reference to all available authorities on the subject of the ancient laws against offenses by language, and preparing a lengthy note on the subject, we con- clude that however interesting as history, its publication here would not advance the object of this essay. The curious student may refer to Holt on Libel, ch. i, vol. II ; I Mence on Libel, ch. viii, ix ; Starkie on Slander; 3 Johns. Cas. 382 ; Wilkins' Leg. Anglo-Sax. ; Lombard's Saxon Laws ; Nicholson's Prefat. ad Leg. Anglo-Sax. ; Stiernhook De Jure Vetusto Suconum et Gothorum ; Tacitus' De Mor. Germ. ; Sal- tern De Antiq. Leg. Brit. ; Dugdale's Origines Juridicales ; Disney's Ancient Laws against Immoralities ; Gurdon's History of Court Baron and Court Leet ; Petit's Leges Atticae ; Johnson's Institutes of the Civil Law of Spain ; Michaelis' Com. on the Law of Moses, Smith's Translation ; The English Statutes, 3 Edw. I ; 2 Rich. II ; I Phil, and Mary; i Eliz.; the publications of the English Record Commissioners ; g 55.] GIST OF ACTION. lOI case owed its origin to the provisidns of the statute 1 3 Edward I, A. D. 1285, it seems necessarily to follow that the action of trespass on the case for words must date its origin at some period subsequent to that statute ; ' but it does not thence follow that anterior to the introduction of the action of trespass on the case for words, there ex- isted in England no remedy for wrongs by language. We know that for centuries prior to the statute of 1 3 Edward I, offenses which we at this day designate slander and libel were recognized and punished ; but of the time and manner of introducing the remedy by action of trespass on the case for words we know absolutely nothing. The reported decisions in the courts of law in England, printed and in manuscript, reach back at least as far as A. D. 1 2 16, but we find in those reports no reference to an action for words earlier than A. D. 1321.= That de- cision merely serves to inform us that at that time existed the struggle for jurisdiction which probably commenced on the division of the courts into courts temporal and Pitcairn's Criminal Trials in Scotland. For seventeenth centuiy ideas of the law of libel in Massachusetts, see Sketches of the Judicial History of Massachusetts ; and among the Dutch in New York, see Valentine's Manual of Common Council for 1849 "pp 402 421; and under English rule, Valentine's Manual for 1847. P- 3591 and Thomas' Hist, of Printing in America. And see List of Authors following Table of Cases, ante. 1 Section 53, ante, and note 3, P- QS, ante. Mr. Pomeroy, in his introduction to Municipal Law, says, § 199 •. That before the statute "there was absolutely no provision for a vast majority of the legal rights * * which are now the most common and important." And § 201 : The effect of the statute "was to extend this action to cases where the injury was consequential or indirect.' ■-> That case is in the year book of Edward II (Hil. 14 Edw. II. p. 416) \ it ^^as an attachment upon a prohibition against proceeding in a court Christian for defamatory words. There is nothing in the report to indicate that it was a novel proceeding. March in his Treatise on Slander, says he could find no action for scandalous words before Edward the Third's time, and only one such action during fifty years of that king's reign ; three such actions during the reign of Edward the Fourth ; not one in the reign of Henry the Seventh ; and only five in thirty-eight years of the reign of Henry the Eighth. At page 5 he says : Actions for scandal are amongst the most ancient in the law. I02 GIST OF ACTION. [CH. IV. courts ecclesiastical, and which continued certainly until after the reign of the first James of England. § 56. Since, then, we can obtain no positive informa- tion on the subject of our inquiry, we are driven to hypo- thesis. Our unzvritten law is based on the so-called com- mon law of England, and whatever the number of sources which contributed to make up that complex, vaguely un- derstood and imperfectly ascertained set of legal ideas denominated the common law of England, it is certain that so much of it as pertains to the rights of persons is mainly derived from the Anglo-Saxon and Roman civil laws. Of both of those systems of laws history furnishes us ample details. We know that Rome held possession of Britain from about the end of the first half century of the Christian era to about the middle of the fifth century (say from A. D. 45 to A. D. 448), and during this period Roman civil law was administered in England. When the Romans abandoned Britain, the Saxons became its masters, and, alternately with the Danes, so continued until the Norman conquest (A. D. 1066). The Saxons introduced their own system of laws. The controlling idea of those laws was the maintenance of the peace and protecting the person and property. They did not, nor does the law at this day, give directly any remedy for out- raged feelings or sentiments.' With few exceptions, these ' See Tilley v. Hudson R. R. Co. 23 How. Pr. R. 370 ; Green v. Hudson R. R. Co. 32 Barb. 25 ; Lehman v. City of Brooklyn, 29 Barb. 234 ; Flemington v. Smithers, 2 C. & R (N. P.) 292 ; Terwilliger v. Wands, 17 N. Y. 54 ; Wilson v. Goit, 17 N. Y. 442 ; Bedell v. Powell, 13 Barb. 183 ; Samuels v. Evening Mail Asso. 13 Sup. Ct. Rep. (6 Hun), 5 ; the cases to the contrary were overruled. Mence, commenting on the statement of Holt, that the few actions for slander to be found in the earlier law reports was creditable to the people of those times, remarks that the credit was not due to the good manners but to the fact that "the common law took cognizance only of injuries to the person and property." (i Mence on Libel, 333.) Perhaps among the reasons why there were so few actions for slander, one may be that the parties themselves undertook to redress the injury without resorting to the law. When King Harold required of Reidar, the Icelander, a blood fine for killing one of his (Harold's) followers, Reidar refused to pay it, because the man brought his g 56.] GIST OF ACTION. IO3 laws designed to remedy every wrong by a pecuniary mulct or fine {werey proportioned and adjusted to the kind and degree of the wrong committed. In that form of trial which corresponded to our present jury trial, the question in Saxon times was only the guilt or innocence of the accused.^ The penalty (the damages) was fixed by the codes. At a later period, after the Norman invasion, and when the Anglo-Saxon codes had been lost by de- suetude, the courts fixed the amount of damages ; this power, when jury trials assumed their present phase, ap- pears to have been transferred by the court to the jury— the court, however, retaining its power to regulate the damages.3 For ages the courts always revised the allow- death upon himself, by behaving rudely to him. See Den Danske Erobring of ^n- .land og Normandict ; Copenhagen. 1863. In Baker v. Pierce (2 Ld. Raym. 960). Holt Ch J said he remembered a story told by Mr. Justice Twisden, of a man who had brought an action for slander, who, on judgment being given agamst him said if he had thought he should not have recovered he would have cut the defendant s throat The Jesuits sanctioned killing for slander, particularly for slander of one in religious orders, but they held that the killing should be secret, and not open to create scandal. (Pascal Letters, xiii.) In the " Ethica Christiana" by Father Benedict Stattler, published in 1789. it is stated, paragraphs 1889, 1891 and^ibg^. that a Christian may, to prevent a " contumelia gravis certo provisa „ autcalumnia" * * * murder the " injusti aggresoris aut calummatons. father Stattler's book was published "cum permissu superiorum," and is said to be still in use as a manual for ecclesiastics. The necessity of protecting character by law could not obtrude itself till society had begun to assume a complicated form. (Borthwick on Libel, i.) The coarse- ness of language indulged in formerly must strike every student of history. Henry III (A D 1248) spoke of the Aldermen of London as " London boors, applied a like epithet to the Bishop of Ely, and dismissed Bishop Aymer by telling h.m to go to the devil. See Miracles of Simon de Montfort and works of Roger Bacon. ' Damages correspond to the Anglo-Saxon were: 1 Palgrave's Rise, &c., Eng. Commonwealth, 205 ; Bosworth's Anglo-Saxon Diet. tit. IVere and IVite ; 2 Lappen- burg's History of England (Thorp's Translation), 336. 2 As to the origin of trial by jury, &c., see Forsyth's Hist, of Trial by Jury, and Stephen's PI. Appendix, note 40; 2 Reeves' Hist. 270; Fortescue de Laud.bus Le- gum Angli^e, ch. xxv, xxvi, xxvii, and notes to the edition by Amos; 2 Hallam s Middle Ages, 3S8-406, note, nth edit.; Palgrave's English Commonwealth, 272. 3 See Viner's Abr. tit. Damages, J, K, L, M, as to powers of courts to increase or mitigate damages. The right was denied in an action for slander, because there is in such an action nothing apparent for the judgment of the court to act upon. (/d K ) See Cassin v. Delaney, 38 N. V. 178 ; but in Gostling v. Brooks, 2 i . ^ t . I04 GIST OF ACTION. [CH. IV. ance by the jury of damages, and the power is still held and exercised by the courts, although at the present time it is customary to make the revision by granting a new trial. Even now the courts not unfrequently order a re- duction of damages, or a new trial, at the election of the party to whom damages have been awarded. The An- glo-Saxon ' codes provide for offenses occasioned by lan- o-uage, but they are all offenses which amount to public wrongs or crimes, sedition, or treason, rather than private wrongs or torts. These codes are in fact barren of any provision of a pecuniary fine or penalty for a private in- jury by language. While the Saxons were yet dominant in Britain, Christianity, which had been early introduced into England and become extinct, was reintroduced through the Church of Rome— say A. D. 596. The in- troduction of Christianity did not abrogate the Saxon laws, but it at least supplemented upon them many pre- cepts of Christianity, and, beyond a doubt, laid the foun- dation for the dictum that Christianity is part of the com- mon law of England." The clergy rose to great power 76, the court in bank upheld the verdict for the plaintiff, but reduced the amount of damages. The damages increased forgiving plaintiff bad food to eat. (i Rolle, 89.) And in cases of mayhem. (See Jacobs' Law Diet. tit. Mayhem ; Rolle Abr. tit. Dam- ages ; 2 Sharswood's Blackstone's Com. 121, note?) ' Sir Francis Palgrave, in his " History of Normandy and of England," which un- happily he was not spared to complete, objects to the term Anglo-Saxon as a desig- nation of the English of the ante-Norman period. He denies there was any Anglo- Saxon people or language, properly so called, and says : " If you had asked Alfred what he had in his hand, he would have answered it was an j5';z^//jc-^c«:. * * * The name of our nation then, as now, was English." (Vol. Ill, p. 631, edit. 1864.) Mr. Palgrave himself employs the term Anglo-Saxon in his earlier works. - We do not intend to assert that Christianity is parcel of the English common law. Sir Matthew Hale, in Rex v. Taylor (Ventris, 293 ; 3 Keble, 621 ; Tremayne's Pleas of the Crown, 226), following Lord Coke, uttered a dictum that " Christianity is part of the laws of England." That dictum has been repeated in subsequent cases. See, among others. Rex v. Webster, Fitzg. 64 ; 2 Str. 834 ; Reg. v. Gathercole, 2 Lewin C. C. 237 ; Reg. v. Hetherington, 5 Jur. 529, Q. B. ; Rex v. Paine, i East P. C. 5 ; LindenmuUer v. The People, 33 Barb. 548 ; Bedford Charity, 2 Swans. 527 ; Da Costa v. Paz, 2 Swans. 420, note ; Atty. Gen. v. Pearson, 3 Mer. 399 ; An- drew V. N. Y. Bible & Prayer Book Soc. 4 Sandf. 157 ; i Bish. Cr. Law, §§ 945, 947 ; ft 56,] GIST OF ACTION. IO5 in the State, they sat in the courts of justice, and took part in the decision of all judicial controversies, and they claimed and exercised a sole jurisdiction over all questions involvincr considerations of moral right and wrong (sms), rather than considerations of legal rights or rights of prop- erty ; those rights in fact which were provided for by the letter of the laws. The jurisdiction thus claimed and ex- ercised included heresy, adultery, perjury, and defamation. This jurisdiction was assumed and exercised with the avowed design not of compensating the injured party, but for the reformation of the offender. Reparation in damages was made only in the cases and for the offenses provided for in the codes. In the exercise of their powers the clergy adopted— at least to some extent— the forms of procedure in use in the Roman law. On the Norman accession, William introduced the feudal system, but professed to respect and continue in force the Saxon laws. He separated the courts mto courts of different jurisdictions, the clergy no longer sat in the temporal courts, but apart in courts Christian or 2 Id § 87 Jefferson, in a letter to Major Cartwright, controverts the dictum that ChrisUanity is a part of the common law. This letter is commented upon in the In- augural Discourse delivered by Joseph Story on taking the chair of Dane Professor at Harvard University, and in an article in 9 American Jurist ; and see Life and Let- ters of Joseph story, vol. I, pp. 430-434 ; vol. II, pp. 8, 462, 463 ; and on this sub- iect see the arguments of Webster and Sergeant in the Girard will case ; and Lewis on Authority in Matters of Opinion. Holt says Alfred made Christianity part and parcel of the common law. (Holt on Libel, 32.) See strictures on this dictum, I Mence on Libel, 303 ; I3 Albany Law Journal, 366 ; 2 How. U. S. 127 ; 8 Johns. 200 ; I Bancroft's Hist, of U. S. 243. The Dome-Book of Alfred, said by Blackstone to have been extant so late asjhe reign of King Edward the Fourth, and to have been lost,- was supposed by both Hal- lam and Turner never to have existed. It has since been published by the Record Commissioners, vol. I, pp. 55-loi. It commences with the ten commandments, fol- lowed by many Mosaic precepts. After quoting the canons of the Apostolical coun- cil at Jerusalem, Alfred refers to the command, " As ye would that men should do unto you, do ye also to them ;" adding, " from this one doom, a man may remem- ber that he judge every one righteously, he need heed no other doom book The Puritan Colony of New England resolved at a " General Court, October 25th, 1639, * * * The worde of God shall be the oncly rule to be attended vnto in ordering the affayres of government in this plantatio." I06 GIST OF ACTION. [CH. IV. ecclesiastical. It would seem they were debarred the exercise of any jurisdiction in controversies in which money damages were claimed. The line of demarcation between the jurisdiction of the temporal and ecclesiastical courts appears to have been that, where compensation was sought, resort was to be had to the temporal courts ; and where the reformation of the offender only was de- sired, then resort was to be had to the ecclesiastical courts. And where the ecclesiastical courts entertained jurisdiction of suits in which money might be demanded, the temporal courts restrained them from proceeding therein by the writ of prohibition. As there is now, so there must ever have been, a distinction between language occasioning pecuniary or temporal injury, and language insulting and provoking and harrowing to the feelings, without occasioning pecuniary or temporal injury. This distinction seems to have been clearly recognized by the statute circtunspecte agatis' and leads almost irresistibly to the conclusion that the gist of the action of trespass on the case for words, was the pecuniary loss, and not for the in- ' The statute thus styled was passed 13 Edward I, stat. 4, ch. i, A. D. 1285. The King to his justices sendeth greeting : " Use yourselves circumspectly (circumspecte agatis) in all matters concerning the Bishop of Norwich and his clergy, not punish- ing them if they hold pleas in courts Christian of such things as be ttieer spiritual * * * and for laying violent hands on a clerk, and in canons of defamation it hath been granted already that it shall be tried in a spiritual court when money is not demanded but a thing done for punishment of sin." By this it appears, said Lord Coke, that the cognizance of defamation was granted by act of Parliament. (2 Inst. 492.) See Appendix D, No. 11, to Ecclesiastical Com'rs Report, Feb. 27, 1832 ; and Stephens' Ecclesiastical Statutes, pp. 26-34. The statute g Edward II, stat. i, ch. iv, A. D. 131 5, enacted : "In defamation, prelates shall correct also in manner above said, the King's prohibition notwithstanding." It seems of those defa/nations by which the party is damnified the spiritual court cannot hold plea. (Vin. Abr. tit. Prohibition, D, 5.) In Bacon's Abr. tit. Courts Ecclesiastical, D, it is said : " No suit can be instituted in an ecclesiastical court for defamatory words in writing, because they may be the subject of an action at law." (Comb. 71.) This, however, appears not to be correct. In Ware v. Johnson, 2 Sir Geo. Lee's Cas. in Eccl. Cts. 103 (A. D. 1755), the words, " He keeps a whore in his house," were held to be defamation, and that whether the language was in writing or by parol. And see 2 Phil. Eccl. Cas. 106. § 56.] GIST OF ACTION. IO7 jury to the reputation — the defamation. In the early stages of society, only that language which put one in peril of punishment, loss of inheritance, or of social com- panionship, could occasion pecuniary loss ;' but as society progresses, as more faith and reliance have to be placed by men each in the integrity of the other, so increases the power to inflict pecuniary injury by means of language. The theory of the law being to redress all wrongs by a pecuniary fine, whenever it appeared that a pecuniary wrong was occasioned by language, there the temporal courts undertook to afford redress. It may be that at first, in all cases, in order to maintain an action for words in the temporal courts, it was necessary to prove a pe- cuniary loss ; but those courts, by laying it down as a rule of evidence, that certain words per se, and without any further evidence, were proof of pecuniary loss, facili- tated a resort to the temporal courts, and, by gradually extending the list of words which were regarded per se as evidence of pecuniary loss, so did those courts extend their jurisdiction. Thus, probably, originated the dis- tinction between words actionable per se and words actionable only on proof by other evidence than the words themselves of pecuniary loss. It is supposed that formerly the English law recognized no distinction be- tween the effect of written and spoken words. When or why that distinction was introduced is unknown. It may well be that the desire of the temporal courts to enlarge their jurisdiction led them to adopt the distinction, a dis- 1 " It is said that formerly no actions were brought for words unless the slander was such as, if true, would endanger the life of the object of it. (Noy, 64 ; I Freem. 277 ) But too great an encouragement being given by this lenity to false and ma- licious slanders, it is now held that for scandalous words of the species before men- tioned (that may endanger a man by subjecting him to the penalties of the law, may exclude him from society, may impair his trade, or may affect a peer of the realm, a magistrate, or one in public trust), an action on the case maybe had without proving any particular damage to have happened, but merely upon the probability that it might happen. (3 Bl. Com. ch. viii.) I08 GIST OF ACTION. [CH. IV. tinction for which they found some warrant in the Roman law. ' § 57. We attempted to explain in Chapter II, the difference between an injury to reputation and an injury to property ; and to show that an injury to the reputa- tion did not necessarily imply an injury to the person or property. In Chapter III, w^e undertook to show that reputation was not an absolute right, and in the preced- ing portion of this chapter we have attempted to show that the temporal courts of common law recognized only injuries involving pecuniary or temporal loss. It nowhere appears that the temporal courts recognized any right to reputation, and it is entirely consistent with all our knowledge of the law to assert that, in theory at least, the temporal courts of England never did, and, as the law in this respect has not been changed, they do not now, recognize reputation as a right which the law protects. And if this be so in England, then is it so in the United States. When we consider that " falsely and maliciously to impute, in the coarsest terms and on the most public occasion, want of chastity to a woman of high station and unspotted character, or want of veracity or courage to a gentleman of undoubted honesty and honor, cannot be made the foundation of any proceed- ing civil or criminal ; whereas an action may be main- tained for saying that a cobbler is unskillful in mending shoes, or that any one has held up his hand in a threaten- ing posture to another,"^ it would seem to need nothing more to satisfy the most skeptical that the protection is to the property, and not to the reputation. We conclude, therefore, to state as law, that pecuniary loss to the ' See note, p. 71, ante. Daniel O'Connell, in 1834, proposed a bill in the En- glish Parliament, intended, amongst other things, to assimilate libel to slander as to what language should give a right of action. See this bill commented upon, 11 London Law Mag. 432. * Report of Committee of House of Lords on Defamation and Libel, July, 1843. §57.] GIST OF ACTION. IO9 plaintiff is the gist of the action for slander or libel. If the language published has not occasioned the plaintiff pecuniary loss (actual or implied), then no action can be maintained.' Let us not be misunderstood. We concede ' A note to the " Preliminary Discourse " to the American edition of Starkie on Slander, after referring to the Roman law as making personal contumely and insult the essence of the offense of slander, adds : " This, it will be seen, is a circumstance which constitutes a very essential and characteristic distinction between the law of England and that of Rome, and of those countries which have adopted the civil law ;• * * * for the law of England has from very distant times considered the temporal injury to a man's estate, and not the contumely or insult of the agent as the ground of compelling reparation in damages." (Prelim. Disc, vii.) " There must be some certain or probable temporal loss or damage to make words actionable." This was said of oral words by De Gray, Ch. J., in Onslow v. Home, 3 Wils. 177, and this was approved by Lawrence, J., in Holt v. Scholefield, 6 T. R. 691. And per Bayley, J., in Whittaker v. Bradley, 7 D. & R. 649 : " The principle on which this species of action [action for saying orally plaintiff, an innkeeper, was a bank- rupt] is, that the slander has the effect of producing temporal damage to the party complaining." To maintain the action there must be injury to the plaintiff. (Ellen- borough, Ch. J., Maitland v. Goldney, 2 East, 426.) An action on the case is not maintainable in any case without showing especial prejudice. (Lowe v. Harwood, Cro. Car. 140 ; s. c. Palmer, 529; Ley, 82.) Reputation or fame is under the protection of the law, because all persons have an interest in their good name, and scandal and defamation are injurious to it, though defamatory words are not actionable otherwise than as they are a damage to the estate of the person injured. (Wood's Ins. 17 ; Jacob's Law Diet, voce Reputa- tion or Fame.) An action on the case lies for words and for deeds. For words spoken to or concerning another, whereby one is defamed and damnified. (Wood's Ins. 535.) " One essential ingredient of a good cause of action for defamation is damage." (Channel!, B., Foulger v. Newcomb, Law Rep. 2 Ex, 330.) Reputation is property. (Dixon v. Holden, Law Rep. 7 Eq. 492.) " In England, by the common law, defamatory words are not actionable other- wise than as they are a damage to the estate of the person injured." (Wood's Civil Law, 244, W£7/f.) "I am not certain," says Lord Karnes, "that in England any verbal injury is actionable, except such has may be attended with pecuniary loss or damage. If not, we in Scotland are more delicate. Scandal, or any imputation upon a man's good name, may be sued before the commissaries, even when the scandal is of such a nature that it cannot be the occasion of any pecuniary loss. It is sufficient to say, I am hurt in my character." (Historical Law Tracts, p. 225.) " The party injured [by libel] may no doubt bring an action on the case. This process, however, is not competent unless it is grounded on an actual loss, which must be shown to have been sustained." (Borthwick on Libel, 4.) In Boldroe v. Porter, Yelv. 20, the declaration alleged per quod the plaintiff was in danger to lose her goods and life. In Edward's Case, Cro. Eliz. 6, held the charge actionable, and assigned as the reason, that " by such speech the plaintiff's good name is impaired." In Button v. Hey wood, 8 Mod. 24, Fortescue, J., obseiTed : " It was the rule of Holt, Ch. J., to make words actionable whenever they sound to the disreputation of no GIST OF ACTION. • [CH. IV. all that can be urged as to the value of a " good reputation.' We believe, with Lord Bacon, that " men's reputations are tender things, and ought to be like Christ's coat, without seam."' And " who can see worse days than he that, yet livins;, doth follow in the funeral of his own reputation?" We do not intend to deny that the law does in fact, and to a great extent, protect reputation ; but we intend to be understood as insisting that, where the law does protect reputation, it does so indirectly, by means of a fiction — an assumption of pecuniary loss. In theory, the action for slander or libel is always for the pecuniary injury, and not for the injury to the reputation. There are many such fictions introduced into the administration of the law, by means of which, without changing the rule of law, the law is, in effect, changed." When this is the case, this difficulty arises : Shall the rule be stated as it is in theory or as it is in effect ? and then this further difficulty that these two phases of the same rule are sometimes stated as the person of whom they were spoken ; and this was also Hale's and Twisden's rule, and I think it a very good rule." " I will cite rights to forbearances merely. A man's right or interest in his good name is a right which avails against persons as considered generally and indetermin- ately. They are bound to forbear from such imputations against him as would amount to injuries towards his right in his reputation. But though the right is a nr. Newcomb, Law Rep. 2 Ex. 330 ; Ter- williger v. Wands, 17 N. Y. 62 ; Wilson v. Goit, 17 X. Y. 444 ; Roberts v. Roberts, .33 Law Jour. Q. B. 250. CHAPTER V. WRONGFUL ACTS. ELEMENTS OF A WRONG. Wrongful acts — Liability — Presumptions of law — Questions of law and fact — Essential acts i^i slan- der and libel — Defamatory — Falsity — Vohtntary — Involuntary — Intention — Malice. § 60. Although we are unable to predicate of any act per se whether or not it is a wrong (§ 51), we may, at least as to some acts, determine of them per se whether or not they are wrongful. § 61. An act is wrongful which, as a necessary or as a natural and proximate consequence, occasions hurt of body or pecuniary loss to another than the actor.' When the necessary consequences of the act must be hurt of body or pecuniary loss, then the act is patently wrongful, or wrongful per se. When the act is one the conse- quences of which are not necessarily hurtful to the person or property of another, but is an act the natural and proximate consequences of which may occasion hurt to the person or property of another, then it is latently wrongful. It is wTongful, provided that as a natural and proximate consequence there ensues personal hurt or pecuniary loss to another. One and the same act may occasion harm to the person and loss of property of another, and either by its necessary or its natural and proximate consequences, or both. It is not always easy to determine what are necessary and natural and proxi- ' Bonomi v. Backhouse, 9 Ho. Lords Gas. 503 ; Smith v. Thackerah, Law Rep, I C. P. 566. §§62-64.] ELEMENTS OF A WRONG. II5 mate consequences, and to distinguish them from those which are not necessary, not natural, or not proximate {remoti) consequences. The rules for making this deter- mination and distinction will be hereafter considered. We have here but to remark that the necessary, natural, and proximate consequences of an act are those of which alone the law takes cognizance, and these it is which constitute in legal phraseology damage or injury. Any consequence which is neither necessary nor natural and proximate is disregarded in law. § 62. No act but a wrongful act can become a wrong. In the absence of any excuse for it being shown, every wrongful act is prima facie a wrong. It is a wrong provisionally or conditionally ; that is to say, it is regarded for all purposes as a wrong, unless and until a legal excuse for the doing it is shown. That which does not exist and that which is not shown to exist are the same. A legal excuse not shown to exist is the same as though no legal excuse existed. The burden of showing the existence of a legal excuse or a defense is always upon the doer of the wrongful act. § 63. The theory is that anything which must be shown to establish a legal excuse or a defense is no part of the essential element of a wrong. In practice, to en- title to a remedy, it is required only to show a wrongful act done, and nothing more appearing, the right to the remedy follows as of course. Reason and expediency alike demand that in this respect the theory should cor- respond to the practice. § 64. Legal excuses are of two kinds— such as con- stitute an absolute defense, and such as constitute a con- ditional defense. A legal excuse of the latter kind is a defense, until some additional fact is shown which takes from it the character of a legal excuse. The legal excuse that the language was spoken by a judge as such (§ 227), Il6 WRONGFUL ACTS. [CH. V. or by a witness as such (§ 223), is of the first or absolute kind. The legal excuse that the language was published to one w^ho was interested to know it, and with a belief that it was true, is a legal excuse of the second or quali- fied kind (§ 241). The excuse exists only provided it does not appear that the language was published not believing it to be true, or published to one not interested to know it. § 65. There is this distinction between legal excuse ' and defense. Legal excuse is such a state of facts as prevents a wrongful act amounting to a wrong. Defense includes legal excuse and more, namely, those cases in w^hich the wrong is admitted to have been done, but where, from some circumstance, such as the statute of limitations, or satisfaction, or in the action for libel the truth of the language published, the plaintiff has forfeited or waived his right of action. § 66. The question what constitutes a wrong or when has a wrong been committed, and the question who is liable therefor, are essentially distinct questions, and to be determined by different rules. § 67. As regards liability, no one is responsible for involuntary acts,' nor for any other than wrongful ' A man must will an act before he can be responsible for it. (Wood's Civil Law, 18.) No action lies for an inevitable accident. (Harvey v. Dunlop, Hill & Denio Sup. 193 ; see Center v. Finney, 17 Barb. 94 ; afifi'd 2 Selden's Notes, 44.) No man is liable civilly or criminally for a purely accidental mischief, that is to say, for the consequences of an act not his own which he was unable to foresee, or, fore- seeing, was unable to prevent. (2 Austin's Lect. Juris. 165, 167.) If there had been any necessity iox the defendant's conduct, it would have been matter of defense. (Ld. Ellenborough, Rex v. Vantandillo, 4 M. & S. 73 ; Reg. v. Hicklin, Law Rep. 3 Q. B. 376.) The act must be intentionally done, the meaning of which is, that the defendant should know what he published, for, as in the case put by Starkie, if a servant should deliver a sealed letter containing the defamatory matter, without knowing its contents, he would not, though the actual instrument of publication, be liable to an action. (Daly, F. J., Viele v. Gray, 10 Abb. Pr. R. 7 ; 18 How. Pr. R. 550.) If published inadvertently, it would not be a libel. (Rex v. Abingdon, i Esp. Cas. 228.) Being the sale of a few copies of a periodical paper containing § 68.] ELEMENTS OF A WROXG. 11/ acts (§ 62). All who, without legal excuse, concur in a wrongful act are alike liable, either jointly or separately. No one can excuse his concurrence in a wrongful act merely on the ground that in what he did he acted as agent for another.' It sometimes happens that those who are in nowise concerned in the actual doing of a wrongful act, or a wrong, are nevertheless liable therefor ; this, be it observed, is not on accoiuit of any p7'csu7ned co7mection with the act, but because under the circum- stances they are legally responsible for the acts of the actual wrong-doers.^ It may also occur that the one who actually does the act may not be liable, while for that same act another may be liable.^ § 68. The proposition that one is liable for his wrong- ful act implies, in terms, liability for the necessary, nat- ural, and proximate consequences of the act. This leaves no room for any question as to the intent with which the act is done. There may or may not be any intent, good or bad ; but intent or no intent, the liability is for the act and its consequences, not for the intent. By the law of England, intent alone, without any overt act, may con- stitute treason ; with this exception, there is no case in which intent alone, without an act, can constitute a the libel, it was for the juiy to say if the defendants were cognizant of what they sold. (Chubb v. Flannagan, 6 C. & P. 431.) Since intention and will are essential to every act, and intention, will and malice to every crime, the absence of any in- tention or will will prevent any occurrence from being an action, and the absence of malice * * * will prevent any action from being a crime. (Stephen's Grim. Law, 85.) ' " There are no agencies in crime." (E. Darwin Smith, J., Lowenstein v. The People, 54 Barb. 305; and see cases cited 11 Abb. Pr. R. 100.) If a person does an act with a guilty intent, he is not the agent of any one. If he does it innocently, he is the agent of some person or persons ; and if two have agreed to employ him, he is the agent of both. (Alderson, B., Reg. v. Bull, 7 Law Times, 8 ; and see Moloney v. Bartley, 3 Gamp. 210 ; Hecker v. De Groot, 15 How. Pr. R. 314, and post, §§ 265-7.) - See post. Publisher. •"■ See ante, note to § 67, and post, Publisher, § 121. Il8 WRONGFUL ACTS. [CH. V, wrong. The prima facie liability for the commission of a wrongful act can be avoided only by showing some defense or lawful excuse. Showing the act to have been done with a good intent would not of itself, in any case, constitute a defense or lawful excuse. The consequences of an act are incidents to the act, and inseparable from the act. Liability for the one is inseparable from Hability for the other. The usual ground upon which this liabil- ity for the consequences of an act is placed is, that the. law presumes every one to intend the necessary and natural consequences of his acts.' The phrase, the law presiimes, is objectionable. The law does not presume.^ It is customary to say that the law presumes every one innocent ; every one of good repute ; every wrongful act to be malicious ; every one to intend the consequences of his acts, &c. But it is not so. If one is accused of wrong, the law requires proof of his guilt, not because ' The law presumes a person to intend the injury his acts are calculated to pro- duce. (Haire v. Wilson, 9 B. & Cr. 643 ; Viele v. Gray, 10 Abb. Pr. R. 7, and a series of dicta.) A man is as much answerable for the probable consequences of his act as for the actual object. (Rex v. Moore, 3 B. & A. 184.) " It is a universal prin- ciple that, when a man is charged with doing an act (that is a wrongful act without any legal justification) of which the probable consequences may be highly injurious, the intention is an inference of law resulting from the doing the act." (Rex v. Dixon, 3 M. & S. 15 ; cited Reg. v. Hicklin, Law Rep. 3 Q. B. 375.) * We are not unmindful of the fact that the books are full of such expressions, as the law presumes, presumption of law, &c. But the phrase is objectionable and should be reformed. Burrill says, the presumption is rather an assumption. (Pre- sump. Ev. 10, 43 ; and see 6 Lond. Law Mag. 354.) The inference, for it is absurd to call it a presumption. (Stephen's Grim. Law, 182.) " Presumptions of fact are but inferences drawn from other facts." (Mason, J., O'Gara v. Eisenlohr, 7 Trans. App. 317.) Distinction between presumption of evidence and presumption of law, see The People v. McCann, 16 N. Y. 66 ; Powell v. Cleaver, 2 Brown Ch. R. 499.) Presumptions are not based on the supposition that the fact presumed exists, but because the policy of the law requires such a presumption. (Doe v. Earnhart, 10 Ired. Law Rep. 516.) Presumption "is the inference of one fact from another." (Duncan v. Little, 2 Bibb, 426.) Counsel : It must be assumed that the trustee will do his duty. Pollock, Gh. B. : We must assume nothing either way, but he may not. (Bulnois v. Mann, Law Rep. I Ex. 30.) The presumption that every one is bound to know the law has no foundation in fact. (Judge Taney, Blackwell's Tax Titles, 575, note.) §69.] ELEMENTS OF A WRONG. 119 it presumes him innocent, but because it does not pre- sume him guilty, and requires the fact to be proved. One complainincr of injury to his reputation is not ex- cused from proving his reputation to be good because the law presumes his reputation to be good, but because the law does not presume it bad. On proof of a wrong- ful act the law will punish it as a wrong, not because it presumes the act to be malicious, but because it does not presume there was any legal excuse for doing the act. An act being wrongful is prhna facie a wrong, and if it is not, the burden of showing the legal excuse to exist is on the actor, or whoever is liable for the act. One is liable for the consequences of his acts because the law will not presume the actor intended any other than the consequences of his act, not because the law presumes any intention. It would be as illogical and unfair to presume that one did not intend to do exactly what he has done, as it would be unwise to allow one to say he did not intend to effect the necessary and natural con- sequences of his acts. § 69. In every transaction brought before a court of law for adjudication two questions always arise: (i) what are the facts, and (2) what is the law applicable to those facts ^ The court always decides the questions of law. Some questions of fact are decided by the court, and some by the jury.^ Courts control the decisions of juries 1 For twelve honest men have decided the cause, Who are judges alike of the facts and the laws. On the motion for a new trial in the case of the Dean of St. Asaph (3 T. R. 428,. note), Lord Mansfield misquoted the above lines as thus : For twelve honest men have decided the cause, Who are judges of facts, though not judges of laws. The author was Mr. Pulteny, and they were written on the occasion of ^he fail- ure of the prosecution against " The Craftsman." (See 21 State Tnals 847, 046 . InTd. 625 ; Forsyth's Hist, of Trial by Jur,^ 272 ; Popular Progress m tnglancl^9 2 Political Ballads of 17th and i8th Centuries, by Wilkins ; Lord Campbell, Lives of the Chancellors Vol. VI, p. 176, Life of Lord Hardwicke.) I20 WRONGFUL ACTS. [CH. V. on questions of fact/ (i) By determining whether or not the evidence adduced tends any way to prove the fact in issue ; whether there is some evidence or no evi- dence. (2) By deciding in some cases that certain estab- Hshed facts warrant or do not warrant certain inferences, and requiring the jury to accept such inferences as proved. (3) By deciding what evidence is to be re- garded, and what disregarded, whether as going to prove or disprove a fact, or to affect damages. (4) By grant- ing new trials when they deem the verdict as contrary to or as against evidence, or the damages excessive or inade- quate. The connection between one fact and another, as cause and effect, is always a question of fact. It is the degree of probability of such connection which leads courts to determine whether they decide the question, or whether they leave it to the jury to decide, (i) If one event is very generally the cause of a certain other event, the courts lay down the general rule that the proof of the one event is the proof of the other, and do not allow juries to decide contrariwise. (2) If one event is often but not so generally the cause of a certain other event, then the courts leave it to the jury in each case to decide whether or not in that particular case that certain other event has followed. The necessary consequences of an act always follow the act, and therefore the courts pronounce it a rule of evidence that the proof of the act is proof of its neces- sary consequences, and the jury may not find otherwise. The natural and proximate consequences of an act do ' The judge put back the jury twice because they offered their verdict contrary to the evidence. (Clayton, 50.) Instances of judges taking questions of fact out of hands of jury. (Wright v. Orient Mut. Ins. Co. 6 Bosw. 269 ; Wells v. Com. Mut. Ins. Co. 46 Barb. 413 ; Clarke v. Rankin, 46 Barb. 571, and numerous cases.) Juries are assistants to the courts in determining so??ie issues of fact. (Forsyth's Hist. Trial by Jury.) In Vermont by statute the courts are forbidden to grant new trials because they differ from the jury as to the weight of testimony. (Stearns v. Howe, 12 Vt. 579.) 121 g« 70-72.] ELEMENTS OF A WRONG. often, but not always, follow the act ; therefore the jury decide in each case whether or not those consequences have followed in that particular case. S 70 In every slander there are two acts: (1) the composing, and (2) the publishing. In every libel there are three acts: (i) the composing, (2) the writmg and (.) the publishing. The act which is the essential ele- ment in the wrongs slander and libel, is a wrongful pub- lication of language (§ 23), and the general prohibition (^ 49) as applicable to those wrongs would be : No one shall, without legal excuse, publish language concerning another or his affairs which shall occasion him damage. In other words : Every publication of language concern- ing a man or his affairs, which, as a necessary or natu- ral and proximate consequence occasions pecuniary loss to him, is prima facie a slander or a libel-^ slander, if the publication be oral ; a libel, if the publication be by writ- ino- This it must be remembered, is not a description, much less a definition of a slander or a libel, but merely a description of what \s. prima facie a slander or a libel. § 71. In describing or defining a slander or a libel, it is customary to enumerate among its requisites (i) that the lano-uage must be defamatory, (2) false, and (3) that the publication must be with malice, or made maliciously. We shall endeavor to give sufficient reasons for omitting these three supposed requisites from our description. § 72. To constitute a slander or libel, must the lan- cruao-e be defamatory? This question suggests others: Whtt is meant by defamatory ? Does defamatory mean more than discommendatory ? It appears to us that to say the language must be defamatory, is only stating a portion of what is implied in saying that it must be such lano-uage as by a necessary or natural and proximate con- sequence occasions pecuniary loss to him whom, or whose affairs, it concerns. It is scarcely conceivable that any 122 WRONGFUL ACTS. [CH. V. Other than discommendatory language can by a necessary or natural and proximate consequence occasion damage ; it may therefore not be improper to say that the lan- guage must be defamatory, but that alone does not ex- press so much as is implied in the requisite of occasion- ing damage. We shall hereafter have occasion to advert to this subject more in detail/ § "j-^. To constitute a slander or libel, must the lan- guage be false ? If the language is true, it is a defense ; '^ but it does not thence follow that falsity is an essential element of the wrong. We know that the fact of the language being true is not alone an answer to a prosecu- tion for a libel as a public offense ; the fact, then, of the language being true does not prevent its amounting to a wrong (§ 43). To say that showing the truth of the lan- guage published is a defense, and to say the language must be false, are not identical propositions. It may be correct to say one has the right to speak the truth, ^ but it is not correct to say one has the right to publish the truth by writing (§ 43). In certain cases, as will here- after be explained, a cause of action for slander or libel cannot be shown without alleging the language to be false ; but in the ordinary case of language concerning ' " But if the matter was not in its nature defamatory, the rejection of the plaintiff cannot be considered the natural result of the speaking of the words. To make the speaking of the words wrongful, they must in their nature be defamatory." (Patteson, J., Kelly v. Partington, 5 B. & Ad. 645 ; 3 Nev. & M. 116 ; and to the same effect see Vicars v. Wilcocks, 8 East, i ; Ashley v. Harrison, i Esp. 48 ; Peake, 194.) "We cannot have a definite idea of a design to injure unconnected with some degree of probability that the means made use of would effect the design." (Durham v. Musselman, 2 Blackf. 99. See § xi% post.) ^ " The truth of the supposed slander is in effect a ground of justification, which must be substantiated by the defendant." (i Starkie on Libel, g.) To maintain the action, the words should be untrue. (Ellenborough, Ch. J., Maitland v. Gold- ney, 2 East, 426.) 2 "Our laws allow a man to speak the truth, although it be done maliciously." (Bronson, J., Baum v. Clause, 5 Hill, 199; and to the like effect, Foss v. Hildrelh, 10 Allen, 76.) §§ 74.75-1 ELEMENTS OF A WRONG. 1 23 the person, no allegation of falsity is required to show a cause of action. In the latter instance the allegation of falsity is not necessary in a civil action, nor even in a criminal prosecution.' But where, as often happens, the lano-uage is alleged to be concerning the person and also concerning the affairs, then the allegation of falsity be- comes material. The approved precedents of pleadings all contain the allegation of falsity, and thus, probably, falsity has come to be regarded as essential to the wrongs and to the descriptions of the wrongs slander and libel In those cases in which falsity must be alleged to show a cause of action, then the language cannot, as a necessary or natural and proximate consequence, occasion a pecuni- ary loss unless it is false ; in such cases, therefore, if 7iot in every case, the requirement that the publication must, as a necessary or natural and proximate consequence, occasion pecuniary loss, includes the requirement that the lan- guage be false. As will appear hereafter, where the lan- guao-e is concerning the person, the plaintiff is not allowed in the first instance, nor, except to disprove a defense of truth, to give any evidence of the falsity of the language published.^ § 74. To constitute a slander or libel, must the publi- cation of the language be with malice or maliciously ? To answer this question it is material to inquire what zs malice, and what is meant by the tervi malice as used in the text-books and the reports.^ ^ 75. We have seen that every act must be lawful or unlawful (§ 42). Lawful, such as has a legal excuse ; un- I Rex V. Burke, 7 T. R. 4 ; and if falsity is alleged, it cannot be traversed. (Lewis V. AUcock, 3 M. & W. 188 ; 6 DowL Pr. C. 389 ; and post, § 328.) ' 5 2 Starkie on Libel, 59; Stuart v. Lovell, 2 Starkie's Gas. 93 ; § 388, A'^A 3 How much bad law and bad philosophy of law have arisen from imperfect com- prehension of the terms will, motive, intention and negligence, may be seen in the nonsense of English law writers concerning malice. (Edinburgh Review, Oct., 1863, p. 230, Amer. reprint.) 124 WRONGFUL ACTS. [CH. V. lawful, such as has not a legal excuse. Acts done with- out lawful excuse are said to be done with malice or to be malicious acts. All acts, whether lawful or unlawful, must be voluntary or involuntary.' § 76. A voluntary act is an act done under no legal or other obligation to perform it, and which the actor may do or forbear at his option ; as an act done in the exercise of a right. An act done with a consciousness or knowl- edge of the character of the act, or under such circum- stances as that the actor ought to know, and by the exer- cise of a degree of care proportionate to the exigencies of the occasion the actor might know, the character of the act. A voluntar)^ act does not mean a mere act of voli- tion, but an act of volition coupled with a means of know- ing the character of the act about to be performed, and an intention to do that very act.^ It is the act sometimes called an intentional act. Every act is prima facie, and without more, a voluntary act ; it is regarded for all pur- poses as a voluntary act unless and until it is shown to be involuntary.3 %"]"]. An involuntary act is an act done under circum- stances which permit to the actor no option as to whether he will do or forbear the act ; an act done under some legal obligation to perform it as an act done in discharge of a duty ; an act done under duress ; an act done uncon- sciously and without knowledge as to the character of the ' " I purposely abstain from the use of the words voluntary and invobintmy, on account of the extreme ambiguity of their signification. By a voluntary act is meant sometimes an act in the performance of which the will has had any concern at all — in this sense, it is synonymous to '■intentional' — sometimes it means uncoerced, and sometimes spontaneous." (Bentham's Principles of INIorals and Legislation, 22, 79, 81, and see 2 Austin's Lect. Juris. 88.) ^ " An act of the will is the same as an act of choosing or choice." (Edwards on the Will, pt. I, § I ; commented on. Hazard on the Will, 177.) As to will and in- tention, see Stephen's Grim. Law, 76. " "Men do not act wholly without motive." (Woodruff, J., Kenedy v. The People, 39 N. v., 254.) ^^ 78-80.] ELEMENTS OF A WRONG. 125 act, the unconsciousness not being self-imposed ; and the act' done without the opportunity, by the exercise of a degree of care proportioned to the exigency of the occa- sion, of knowing the character of the act. § 78. Besides, and in addition to the intention of pcr- forrning any act, there may be an intention in tiie mmd of the\ctor to accompHsh, by means of the act done, certain ends, or to produce certain consequences. Pass- ing over the metaphysical distinctions between will and intent, we may draw a distinct line of demarcation be- tween the intent to do an act and the intent to produce the consequences of the act. This line we draw. § 79. Intent may or may not, in fact, be synonymous with motive, but we desire it understood that we use in- tent and motive as synonymous. By intent we mean motive, and if the term motive be employed instead of in- tent, it must be divided as we have divided intent, and a distinction observed between the motive for doing the act and the motive to produce the consequences of the act. The intent or motive which goes towards the doing the act we include in the term voluntary. The intent or mo- tive which refers to the consequences of the act we de- nominate intent or intention. § 80. A voluntary act may be done without any m- tent to produce its consequences, and an involuntary act may be done with an intent to produce its consequences.' • "Nor does the nature of the resulting effect make any difference to the moral quality or character of the effort. A man's intentions may be most virtuous, and yet the actual consequences of his efforts be most pernicious. ' * * The moral nature of the volition is not, then, in any way affected by what actually follows that volition." (Hazard on the Will, 154.) " F'-"'^!''"^' ^'^'-^t ''^''^ '"'P^''' intention, numer- ous writers on jurisprudence employ will and intention as synonymous. They for- get that intention docs not imply unll. * * * The agent may not intend a consequence of his act. In other words, wlicn the agent wills the act. he may not contemplate the given event as a consequence of the act which he wills. {2 Aus- tin's Lect. Juris. 94.) " It is perfectly manifest that badness or goodness cannot be 126 WRONGFUL ACTS. [CH. V. In the cases in which there exists any intent to do more than commit the act itself, the intent may be either to produce all or some of the consequences of the act, or to produce an effect not a consequence of the act done. As one is responsible only for the necessary and natural and proximate consequences of his acts, at least any intent to produce any other consequence or effect must be imma- terial. If the intent is at all material, it must be the in- tent to produce the necessary and natural and proximate consequences of the act. § 8 1. The various kinds of intents with which an act may be done are all resolvable into two classes: (i) an in- tent to injure some one ; (2) an intent to benefit some one. The one to be injured or benefited may be the actor or some other. One and the same act may be done with an intent to injure one and benefit another. § 82. Intent may be divided into general and par- ticular. Particular intent, or the intent with which any certain act may be done, is to be distinguished from the general intent. One may have a general intent to injure or benefit another, and synchronously with that intent may do some act concerning that other without any refer- ence to the general intent, or without any particular in- tent, or with a particular intent different from or contra- dictory to the general intent. As a .question of probabil- ity, the particular intent will follow the general, but not necessarily so ; whether it does or does not is in every case a question of evidence. § 83. Intent or intention is a mental conception — an existence. It is a fact,' impalpable, intangible, invisible, affirmed of the will, and that a criminal intention may accord with a good disposi- tion." {Id. 133.) ' The existence of mind is as much a matter of fact as the existence of matter. (Elementary Sketches of Moral Piiilosophy, by Sidney Smith, Introductory Lecture.) Intention is a fact. (Clift v. White, 12 N. Y. 538.) A witness may be asked with §84.] ELEMENTS OF A WRONG. 12/ but nevertheless a fact. The existence or non-existence of an intent or an intention, and the kind or character of the intent or intention are always questions of fact. Save the declarations of the individual in whose mind the intent is supposed to exist, we can have no di7'cct testimony as to the existence or non-existence of any intent, or of the kind or character of the intent. Save such declarations, we can have none but indirect testi- mony. That indirect testimony is, the inference we may draw from one's acts.' § 84. Not technically, but in reality, when the intent what intent he did an act. (Seymour v. Wilson, 14 N. Y. 567; Griffin v. Marquardt, 21 N. Y. I2r ; Forbes v. Waller, 25 N. Y. 439.) Bat his evidence is not conclusive. (Griffin v. Marquardt, 21 N. Y. 121 ; Thurston v. Cornell, 38 N. Y. 287 ; Foster v Cronkhite, 35 N. Y. 147.) And it seems this question is not permissible in certain cases, as where the intent may be or must be inferred from the act. (Tlie People v. Saxton, 22 N. Y. 309; Shaw v. Stine, 8 Bosw. 161 ; Ballard v. Lockwood, i Daly, 164.) We are not aware of the right to put the question as to intent having been mooted in an action for slander or libel. We suppose it could not properly be put in any action for slander or libel, because we are of opinion the question of mere intent can never be material in those actions. But assuming that intent is or may 1)6 material, then the question might be put in connection with a state of facts which discloses a qualified legal excuse. In our opinion, the decisions show the rule to be : you may inquire into the intent directly, as by inquiring of the party, in cases where the intent is material, and the act complained of is as consistent with a good intent as with a bad intent, but in no other cases. (See supra, and Booth V. Sweezy, 8 N. Y. 281 ; Ellis v. The People, 21 How. Pr. R. 356; Powis v. Smith, 5 B. & A. 850 ; see note to § 402, post ; an article, 14 Albany Law Jour. 3S5, entitled " The admission of direct testimony to the witnesses' intent.") " Be- cause," says Mr. Erskine (Inst, iv, 4, 80), " the intention of the defender cannot always be known with certainty, in the trial of this crime [verbal injury], doctors are generally of opinion that his oath in supplement may, in doubtful cases, be ad- mitted towards his exculpation." (Borthwick on Libel, 172, note.^ ' The state of a man's mind can only be known by others through his acts, through his own declarations, or through other conduct of his own. (2 Austin's Lect. Juris. 106; Fisk v. Chester, 8 Graj', 50S.) Previous intentions are judged by subsequent acts. (Dumont v. Smith, 4 Denio, 319, 320.) The intention of an act done must be judged by its necessary consequences. Where these are directly per- nicious, the intent to work mischief becomes a conclusion of law. (Safibrd v. Wyckoff, I Hill, 11, referring to Reg. v. Boardman, 2 Moo. & Rob. 147, 148.) Where the guilt or innocence of the act depends upon the motive of the actor, his conduct and declarations as to other similar transactions about the same time are always admissible to show it. (Barren v. Mason, 31 Vt. [2 Shaw], 189; Scanlan V. Cowley, 2 Hilton, 489 ; Center v. Spring, 2 Clarke [lowaj, 393.) 128 WRONGFUL ACTS. [CH. V. is to injure, it is a bad infeni, and bad intent is malice.^ The act by means of which a bad intent is sought to be reahzed, is a lualicio^is act, and the act is done mali- ciously. § 85. Upon reference to the text-books and reports to discover the meaning in nse of the terms intent ' and mahce, we find : § 86. As respects the term intent, it is sometimes employed to signify done intentionally, and in that sense is equivalent to will, or to what we have designated voluntary ; sometimes employed to signify an intent to produce the consequences, or some certain consequences, by means of the act done, and sometimes employed to ^ " Hardly any word in the whole range of the criminal law has been used in such various and conflicting senses, nor is there any which it is more important to understand correctly." (Stephen's Grim. Law, 81.) The etymological meanings of the words malice and malicious are simply wickedness and wicked {Id. 82), and it will be found in practice impossible to attach to these terms any other meaning. [Id^ '■ I apprehend that there is no ground for distinguishing between the legal and the popular sense of the word, and that it means in its legal sense exactly what it means in its popular sense, namely, a mischievous design or intent to do an injury to an individual or to the public." (Daly, F. J., Viele v. Gray, 10 Abb. Pr. R. 5 ; 18 How. Pr. R. 550.) The law presumes from the act an intent to bring about its consequences ; " to denominate this intent malice or malice in law, when it may have arisen from a good motive, the defendant believing what he alleges to be true, is to employ the word malice in a sense neither justified by its etymology, its ordinaiy meaning, nor its previous legal signification." (/, 3 "If none heard the words it is no slander." (Viner's Abr. tit. Actions for Words, L, /', 4 ; and see cases cited, i Caines R. 582.) 152 PUBLICATION. [CH. VI. present at the speaking did or did not hear the language spoken is, in every case, a question of fact. And this is not the less the rule because where the speaking is in the presence of a third person, under such circumstances that he might have heard what was spoken, he may, as a rule of evidence, be assumed to have heard it, until it be shown that he did not hear.' The burden is on him who alleges a publication to establish that the third person heard the language spoken. (3) The third person must understand the language (§ 96). When hereafter we speak of an oral publication, or a publication orally, we shall intend a publication with the requisites above men- tioned. § 108. The requisites of a piiblication in lui'iting are (i) that the writing, the material written upon, be so ex- posed as that the subject-matter of the writing is read by at least some one third person (§ loi). No possible form of language in writing can be the basis of an action for hbel if read only by the writer and the person whom or whose affairs the language concerns.^ (2) The sub- ject-matter of the writing must be tmderstood by at least some one third person by whom it is read (§ 96). When hereafter we speak of a publication in writing, we shall intend a publication with the requisites above mentioned. § 109. The pubhcation must be pi^ior to the com- ^ The word "publish," as applied to speech, implies that the language was spoken in the presence and hearing of others. (Watts v. Greenlee, 2 Dev. 115 ; Viner's Abr. tit. Actions for Words, L, (5, 4 ; contra, Desmond v. Brown, 33 Iowa, 13, See Goodrich v. Warner, 21 Conn. 432 ; i Milliard on Torts, 319, w^fe) In slander it is sufficient if the words are said to have been spoken " in the presence" of others (Brown v. Brashier, 2 Penn. [Penrose & Watts], 114), or in the presence and hear- ing of divers persons, or of certain persons named. (Burbank v. Horn, 39 Maine, 233 ; and see i W. Saund. 242, n. i ; see § 324, post>^ '' But delivery to the party libeled is a sufficient publication to support an indict- ment. (Phillips V. Jansen, 2 Esp. 624.) The moment a man delivers a libel from his hand and ceases to have control over it, there is an end of his locus pcenitentia, the injuria is complete. (Holroyd, J., Rex v. Burdett, 4 B. & Aid. 143.) § no.] PUBLICATION. I53 mencement of the action, and a publication prior to the commencement of the action should be proved.' Where a witness called to prove publication was unable to say whether the speaking the words referred to was before or after the date when the action was commenced, it was decided that his testimony was not admissible.^ But it was held not to be a ground for arresting the judgment that it appeared on the face of the record that the writ issued prior to the alleged publication. ^ § no. The place of publication may be within or without the territorial limits of the State or country within which redress is sought. The decisions, so far as they go, all hold, that as a question of jurisdiction, it is immaterial whether the publication was within or with- out the territorial limits of the State or country within which redress is sought, and this on the ground that the wrong follows the person, and may be redressed by civil action in any court having jurisdiction of the person at the time redress is sought. It is conceded, however, that as regards crimes no redress can be had in one State for a crime enacted within the territorial limits of another State, because a crime is a violation of the law of the State within which it is enacted. This concession seems to imply that for a wrong committed in one State there can be no remedy in another; because the right to remedy is based on a violation of some general prohibi- tion of the law, and not like a remedy on contract for a breach of a private convention between the parties, which of course follows the persons of the parties to the ' Taylor v. Sturgingger, 2 Rep. Con. Ct. 367 ; Phila. &c. R. R. v. Quigley, 21 How. U. S. Rep. 202 ; see note to § y^b, post. Where the complaint alleged that the words were spoken in the year 1871, it was held equivalent to an allegation of a publication prior to the commencement of the action. (Sonneborn v. Bernstein, 49 Ala. 16S.) '^ Steward v. Layton, 3 Dowl. Pr. Cas. 430. ^ Scovel V. Kingsley, 7 Conn. 284. 154 PUBLICATION. [CH. VI. convention.' The effect of the place of publication upon the construction of the language published, and as a ' Mr. Stephens, in his " Treatise on Criminal Law," insists that a crime and a tort differ only as regards their consequences. No court "administers justice in general " (De Bode v. Reg. 13 Ad. & El. N. S. 3S6), and "the laws of a State have no force prop7-io vigore beyond its territorial limits." (Hoyt v. Thompson, 5 N. Y. 340.) "If two persons fight in France, and both happening casually to be here [in England], one should bring an action of assault against the other, it might be doubtful whether such an action could be maintained here [in England]. * * * jj iiiight perhaps be triable only where both parties at the time were subjects." (Mostyn v. Fabrigas, 20 State Tr. 82 ; I Smith's Leading Cases.) In Molony v. Dows (8 Abb. Pr. R. 316), it was held at nisi prius, but after elaborate argument and deliberation, that an action for an assault in California could not be maintained in the courts of the State of New York. In Mclvor v. McCabe (16 Abb. Pr. R. 319), it was held that the courts of New York had jurisdiction of an action for a personal injury committed in New Jersey by one citizen of that State upon another. As to action for tort committed in a foreign country, see Scott v. Seymour, 6 Law Times Rep. N. S. 607 ; i Hurl. & Colt. 219; 32 Law Jour. Ex. 61; De\Yitt v. Buchanan, 54 Barb. 31. "As a gen- eral rule, in order to found a suit in England for a wrong alleged to have been com- mitted abroad, two conditions must have been fulfilled. First, the MTong must be of such a character that it would have been actionable if committed in England. * * * Secondly, the act must not have been justifiable by the law of the place where it was done." (Phillips v. Eyre, Law Rep. 6 Q. B. 29 ; and see s. c. Law Rep. 4 Q. B. 225 ; The M. Moxam, Law Rep. i Prob. & Div. 107 ; Bariy v. Fisher, 39 How. Pr. R. 521 ; Newman v. Goddard, 5 Sup. Ct. Rep. [T. & C] 299 ; s. c. 10 Sup. Ct. Rep. [3 Hun], 70 ; 48 How. Pr. R. 363 ; Klumph v. Dunn, 66 Penn. St. 141 ; § IS9, post " Of matters arising in a foreign country, pure and unmixed with mattei-s arising in this country, we have no proper original jurisdiction, but of such matters as are merely transitory and follow the person, we acquire a jurisdiction by the help of that fiction to which I have already alluded [the fiction of laying the venue], and we cannot proceed without it." (Eyre, Ch. J., Ilderton v. Ilderton, 2 H. Bl. 145, 162.) As to torts committed at sea. (Percival v. Hickey, 18 Johns. 257 ; Novion v. Hallett, 16 Id. 327 ; Wilson v. McKenzie, 7 Hill, 95.) To maintain an indictment for libel, the publication must be proved to have been made in the county laid in the indictment, all matters of crime being local. (Holt on Libel, 299, citing Rex v. Johnson, 7 East, 65.) In Trumbull v. Gibbons, 3 City Hall Recorder, 97, the libel was printed in Boston and published in New Jersey, but it was held the courts of New York had jurisdiction ; and see Glen v. Hodges, 9 Johns. 76; Smith v. Bull, 17 Wend. 323 ; Johnson v. Dalton, i Cowen, 548 ; Gardner V. Thomas, 14 Johns. 134. If one of our citizens goes into Canada and slanders his neighbor, an action will lie in this State. (Lister 7'. Wright, 2 Hill, 320 ; Hall v. Vreeland, 42 Barb. 543 ; 18 Abb. Pr. R. 182.) An action for slander will lie, in Indiana, for words spoken in another State actionable at common law. (Offutt z: Earlywine, 4 Blackf. 460 ; Linville r. Early- §§ III, 112.] PUBLISHER. I55 question of vemte, and as affecting the liability, will here- after be considered. § 1 1 1. T\i^ perso7i who makes a piiblicatio7i is a pub- lisher. In the text-books, and in reference to slander and libel, the term publisher is employed sometimes tj sig- nify the person who actually makes a publication, and sometimes the person who, not being the actual pub- lisher, is liable for the publication — is liable as publisher. We shall always employ the term publisher in the sense of and to signify the person who actually makes the pub- lication. § 112. Republication is a second or subsequent publi- cation of the same language. Repetition is a publication of language of the same import or meaning, as the lan- guage of a previous publication. . Repetition is a j-^^^i-^r- que7it ptiblication independent and distinct from the first publication. There may be a republication of a writing, the material written upon, there may be a repetition of wine, 4 Blackf. 469; Stout 7'. Wood, i Id. 71.) And the same in Vermont. (Lang- don V. Young, 33 Vt. [4 Shaw], 136.) In an action of slander brought in Indiana, it will be presumed until the con- trary be proved that the words were spoken in that State. (Worth v. Butler. 7 Blackf. 251.) It is sometimes necessary to show a publication in a particular county. Where the defendant wrote letters in Ireland, and sent them to Middlesex county, England, to be printed and published, and the letters were there published, it was held to be a publication by the defendant in Middlesex county. (Rex v. Johnson, 7 East, 65 ; and to the like effect, Rex v. Middleton, Str. 77 ; Keene v. Ruff, i Clarke [Iowa], 482.) Where A. wrote a letter and sent it by mail to B., in the county of B., and it was again sent by mail to the county of M., at which county B. received and read it, held to be a publication in the county of M. (Rex v. Watson, i Camp. 215 ; and see Rex v. Girdwood, East's R C. 1116, 1120; Case of the Seven Bishops, 4 State Trials, 304 ; Rex v. Burdett, 4 B. & Aid. 95 ; 2 Starkie on Slander, 39-43 ; Com- monwealth V. Blanding, 3 Pick. 304.) In an action for suspending a lamp before the plaintiff's house, intimating that it was a house of ill-fame, the parish in which the declaration states the house to have stood and the tort to have been committed, is to be considered as venue merely, and not as local description, and it is immaterial whether there be any such parish in existence. (Jeffries v. Buncombe, 2 Camp, 3 ; 11 East, 226, And see Mersey Navigation Company v. Douglas, 2 East, 497.) 156 PUBLISHER. [CH. VI. the subject-matter of a writing, and there may be a repe- tition of oral language (speech), but there cannot be a republication of oral language. § 113. Speech is but sound, a mere vibration of the atmosphere, cognizable only by the auditory sense. From its nature it necessarily follows that the sa^ne sound cannot be repeated ; a similar or a like sound may be produced, undistinguishable in every respect from the first, and of the like character and signification, but that will not be the same sound. One who repeats a word previously spoken does not utter the identical word, but a similar or like word : he repeats a like sound of the same signification as the first. The two sounds are separate and distinct, although each has the same meaning. Hence each publication of oral language is a new, distinct, and separate publication. § 114. As respects oral publications, the person who actually makes the publication, the publisher, and the person liable as the publisher, must be always one and the same person. Every speaker is the publisher of what he speaks, and is solely liable therefor. That the words spoken have been previously published by another, can neither relieve the subsequent speaker from his liability for the publication made by him, nor impose any liability on the previous publisher. The act of publication is, as to each publisher, an entirely distinct act. Each person can be liable only for the publication made by him. If one makes an oral publication, and another repeats it, without authority from the first speaker, the first pub- lisher is not liable for the repetition.' Besides that, the ^ Where A. uttered a slander of B. the wife of C, and B. repeated the slander to C, in consequence of which C. refused to cohabit with B., held that no action could be maintained against A. ; the publication was not A.'s, and A. was not responsible for the consequences of it. (Parkins v. Scott, 6 L. T. N. S. 394; s. c. Perkins v. Scott, I Hurl. & Colt. 153 ; and see Tunnicliffe v. Moss, 3 C. & K. 83; Dicken v. § II 5-] PUBLISHER. 157 repetition is not a repetition of the same language (§ 113), the repetition is neither a necessary nor a nat- ural and proximate consequence of the first publication. It is not an exception, but a corrollary of this rule, that where the repetition is privileged, the author of the defamation is liable for the consequences of such privi- leged repetition. The repetition is a natural conse- quence of the first publication. Thus, where the de- fendant made a defamatory communication to A. re- specting the plaintiff, in the employ of his A.'s wife, which A. repeated to his wife, who in consequence dis- missed the plaintiff from her service, held that the de- fendant was liable for the damages occasioned by the dismissal' . § 115. As respects a publication by writing, a libel, not only the publisher but all who in anywise aid or are concerned in the production of the writing are liable as publishers ; the publication of the writing is the act of all concerned in the production of the writing (§ 113). Thus, if one composes and dictates, a second writes, and a third publishes, all are liable as publishers, and each is liable as a publisher.^ Shephard, 22 Md. 399.) But the person who originates the slander can only be liable for the special damage occasioned by his own communication of it. (Gates z/. Kellogg, 9 Ind. 506 ; Dixon v. Smith, 5 Hurl. & Nor. 450 ; Fowles v. Bowen, 30 N. Y. 20; Ward v. Weeks, 7 Bing. 211; Cochran v. Butterfield, 18 N. Hamp. 115.) But see Bassell v. Elmore, 48 N. Y. 561. ' Derry v. Handley, 16 Law Times, N. S. 263 ; and ?,&e.post, § 202. - All concerned in making a libel are alike liable. " The law denominates them all makers." (Holt on Libel, 288, 289 ; 2 Starkie on Slander, 225 ; Bishop's Grim. Law, § 931 [814], citing Rex v. Drake, Holt, 425 ; Rex v. Paine, 5 Mod. 163 ; Rex V. Bear, Garth. 407 ; Rex v. Williams, 2 Gamp. 646.) " All persons who concur and show their assent or approbation to do an unlawful act, are guilty ; so that murder- ing a man's reputation by a scandalous libel maybe compared to murdering his per- son ; and if several are assenting and encouraging a man in that act, though the stroke was given by one, yet all are guilty of homicide." (Quoted by Kent, Gh. J., in Dale v. Lyon, 10 Johns. 461 ; Gochran v. Butterfield, 18 N. Hamp. 115.) The publisher is equally responsible with the author of a libel. (Dexter v. Spear, 4 Mason, 115.) Printer and editor are both liable. (Watts v. Eraser, 7 Gar. & P. 11 158 PUBLISHER. [CH. VI. § 116. The mere composing or writing any certain form of words, and keeping the writing and its contents confined to the custody and to the knowledge of the composer or writer, so that it is not communicated to any other person, does not render the composer or writer liable either to indictment or to civil action, for there is no publication. So, having or retaining possession of a writing, no matter by whom written, cannot amount to a wrong by the person so having or retaining possession of such writing ; for as to him, at least, there is no pub- lication.' The composer and the writer of matter which 369; Rex V. Dover, 16 Charles II, 2 St. Tr. 547, Hargreaves' ed.) The proprietor of a newspaper is liable for defamatory matter, published in the form of an adver- tisement in his paper, although others are also liable for the same publication. (Har- rison V. Pierce, I Fos. & Fin. 567), and the author of a libel may be sued for its publication, notwithstanding that the publisher of the libel has been sued in respect of it. (Frescoe v. May, 2 Fos. & Fin. 123.) The responsibility of the writer of a private letter for the publication of its contents, is not limited to the consequences of a communication of them to the person to whom the letter is addressed, but extends to the probable consequences of thus putting the letter in circulation. (Miller v. Butler, 6 Gush. 71 ; see Bassell v. Elmore, 4S X. Y. 561.) Where, in case for oral and written slander, to support the count on the latter, a reporter to a newspaper was called, who proved that he had written down from the defendant's mouth (who said at the time it would make a good case for the news- papers) the statement M-hich he afterwards sent to the editor, and that a paragraph, which aftenvards appeared, was in substance the same, held, that what was so pub- lished in consequence of what passed with the defendant, might be considered as published by the defendant ; but to prove that what was published was the same as that given to the editor by the reporter, could only be done by producing the written paper itself. (Adams v. Kelly, i Ry. & M. 158.) Two persons having participated in the composition of a libelous letter written by one of them, which was afterwards put into the post office, and sent by mail to the person to whom it was addressed ; such participation was held to be competent and sufficient evidence to prove a publication by both. (Miller v. Butler, 6 Gush. 71; and see Reg. v. Gooper, 15 Law Jour. Rep. Q. B. 206; 8 Q. B. 533 ; Parkes z-. Prescott, Law Rep. 4 Ex. 168.) One who writes an article in English, and employs another person as his agent to translate it into German and publish it, will be liable if the German article so published is libelous, although the translation is inaccurate. (Wilson V. Noonan, 27 Wis. 598.) ^ Until publication, possession of a libel is no more than the possession of a man's thoughts. (Rex v. Almon, 5 Burr. 2689.) So long as the writer retains possession of the writing, he has a locus paiiitcnticB j but " The moment a man delivers a libel from his hands, and ceases to have control over it, there is an end to his locus pmti- tentics ; the injuiia is complete, and the libeler [the writer] may be called upon to § 11/.] PUBLISHER. 159 is afterwards published is liable as publisher for such publication.' And this liability, as wc suppose, is not to be qualified by the circumstances under which the pub- lication occurred. It would be no excuse to say that the writing was kept guarded and concealed, and was taken from him by force, or obtained from him by fraud or by the procurement of the party whom or whose affairs it concerns.^ If the matter written is of an injurious tend- ency, and any injury ensues from its publication, the composer and the writer are liable, not because of any imputed or presumed malice in making the publication, but because, unless such a writing had been created, the injury occasioned by it could not have happened; creating the WTiting and preserving it were wrongful acts, for the necessary or natural and proximate consequences of which the authors are liable, on the general principle that a wrong-doer cannot excuse his act, by reason of the act w^hether rightful or wrongful of others.^ § 1 1 7. The material written upon, and the subject- matter inscribed upon such material, are substantial entities. The very identical writing may be passed from hand to hand, and each such passage is as well a separate and distinct publication as a republication of such writing. Every person concerned in making such a publication is answer for his act." (Rex v. Burdett, 4 B. & Aid. 143, Holroyd, J. ; and see 5 Mod. 167 ; Holt on Libel, 294 ; 2 Starkie on Slander, 228 ; Rex v. Rosenstein, 2 Car. & P. 414.) 1 Holt on Libel, 289 ; Bond v. Douglass, 7 C. & P. 626 ; Miller v. Butler, 6 Cush. 71 ; Burdett v. Cobbett, 5 Dowl. 301 ; Giles v. The State, 6 Ga. 276. '^ Where the plaintiff sent his agent to the office of the defendant, the publisher of a newspaper, to purchase a copy of the paper, held that a sale to such agent was a publication to a third person. (Brunswick v. Harmer, 14 Q. B. 185 ; see King v. Waring, 5 Esp. Cas. 13; Smith v. Wood, 3 Camp. 323; Thorn v. Moser, i Denio, 488 ; Griffiths v. Lewis, 7 Ad. & Ell. N. S. 61 ; contra, see Sutton v. Smith, 13 Miss. 120; Allen V. Crofoot, 2 Wend. 515 ; Gordon v. Spencer, 2 Blackf. 2S6 ; Plays v. Leland, 29 Maine (16 Shep.) 233 ; and see in notes to §§ 121, 123, post.) 3 Collins V. Middle Level Comm'rs, Law Rep. 4 C. P. 279 ; affirming the princi- ple in Scott V. Shepherd, 2 W. Bl. 892. l6o PUBLISHER. [CH. VI. liable not alone for the consequences of that publication, but for the consequences of any subsequent publication of the same writing. One and the same writing may be many times published at the same or at several and dis- tinct places, and may have many publishers ; and many persons may be liable as publishers at one and the same time or at several times. The subject-matter of a writing cannot be republished apart and separate from a republi- cation of the writing, the material written upon. Apart from the material on which the matter is inscribed, it is as impossible to republish the same subject-matter of a writing as it is to republish the same sound or oral lan- guage or speech. If one copies the subject-matter o: a writing upon another piece of material, the copy is no more the same subject-matter as the subject-matter copied from, than is the repetition of a sound an uttering of the same sound. The copy is not the same writing but another — a second and independent writing, having the like but VLOt\the same subject-matter. A publication of this copy would have no other connection with the original than that it contained the like subject-matter. The persons liable for the publication of the first writing would not be liable for the publication of the second or the copy, and the persons responsible for the publication of the second writing would not be responsible for the publication of the original writing. The publication of the second writing is neither a necessary nor a natural and proximate consequence of the publication of the first writing, nor is a publication of the first writing a necessary or a natural and proximate consequence of the publication of the second writing. It may be urged that but for the publication of the first writing the second might not, or perhaps could not, have come into exist- ence. The author of the second writing could not have possessed the material or knowledge requisite for its ^ I i8.] PUBLISHER. l6l production. The same objection would apply, and with equal force, to an oral publication. If the first speaker had not uttered the words, the second speaker could not have repeated them. We know such an objection would be unavailing. Again, it may be urged that the one who dictates the language forming the subject-matter of a writing, which is afterwards published by another, is responsible for such publication, either solely or jointly with the publisher, or that the writing first published is equivalent to a dictation of the language of the second writing ; but this is not so ; the dictation, to incur any responsibility for a subsequent publication of the language dictated, must be made with an intent or a 7'equcst that the language so dictated shall be subsequently published (§§ 114,115. ii8)- § 118. There may be a joint pubhcation by writing, but, for the reasons heretofore stated (§ 113), there can- not be a joint oral publication. If two or more utter the like words, either simultaneously or separately, it is not a joint publication, but a several publication by each, for which each must be sued separately, and for which they cannot be sued jointly.^ Within this rule husband and 1 A joint action cannot be maintained against two or more persons for slander. (Webb V. Cecil, 9 B. Mon. ig3 ; Forsyth v. Edminston, 2 Abb. Pr. R. 431 ; 5 D>-ier, 653 ; Chamberlaine v. Willmore, Palm. 313; I Bulst. 15 ; 2 W. Saund. II7 '' ; The State V. Roulstone, 3 Sneed, 107 ; 2 Bish. Grim. Pro. § 766 ; Patten v. Gurney, 17 INIass. 1S2; Heard on Libel, 222, note i ; Chamberlain v. White, Gro. Jac. 647; Burratt v. Gollins, 10 Moore, 451 ; Carrier v. Garrant, 23 Up. Gan. G. P. R. 276.) " It is an established rule, both here and in England, that two persons cannot join as pursuers in an action of calumny ; but if defamatory language is published of partners in trade, whereby they are injured in their trade, a joint action will lie at the suit of the partners ; and, upon an extension of the same principle, it has been determined that a body corporate or an association of individuals may be injured by scandal, and may, accordingly, prosecute for redress of it. Society of Solicitors v. Robertson, November 16, 1781, Mor. 13, 935 ; Shearlock v. Beardsworth, Decem- ber 20, 1816, 2 Mur. Rep. 19." (Borthwick on Libel, I74-) It is impossible for three rnen to make arbitrament by word of mouth, because it cannot be jointly pro- nounced. (Lawson's Case, Glayt. 17, A. D. 1663 ; and see Billings v. Russell, 3 Boston Law Rep. N. S. 699; Hinkle v. Davenport, 38 Iowa, 35.) 1 62 PUBLISHER. [CH. VI. wife are considered as separate individuals. If husband and wife utter the like words, either simultaneously or separately, there are two publications — a separate pub- lication by each (§ 304). For the words uttered by the husband he must be sued alone ; for the words uttered by the wife, the husband and wife must be sued together.' Two or more may agree together (conspire) in composing a set of words v/hich one or both shall speak; that, is to say, two or more may conspire to injure another by an oral publication of language ; for this the remedy would be, not an action for slander, but an action for a con- spiracy to defame.^ § 119. Where the pubhcation is the joint act of two or more, they may be sued jointly or separately ; if sued separately, the plaintiff can have but one satisfaction, but may elect de inelioribus damnis. Thus, where A. brought an action of libel against B., who pleaded piiis dain-ein conthuLancc, that he was a partner with C. in the printing and publishing the newspaper which contained the libel, and that A. brought a previous action against C. for the same identical publication, and recovered a judgment which had been satisfied, &c. On demurrer this was held a good plea, and that the plaintiff could have but one satisfaction, but might elect de mclioribus damnis? § 120. A publication, the act of pubhshing, must be upon some occasion (§ 50), and must be voluntary or ' Tait V. Culbertson, 57 Barb. g. There must be separate actions for words spoken by a husband and a wife. (Penters v. England, i McCord, 14 ; Malone v. Stillwell, 15 Abb. Pr. R. 425 ; Swithen v. Vincent, 2 Wils. 227.) Husband and wife may be jointly sued for a libel published by them jointly. (Catterall v. Kenyon, 3 Q. B. 310; Keyworth v. Hill, 3 B. & Aid. 685.) See Parties, §§ 301, 304, post. " See 2 Hilliard on Torts, 444, 558, 7i(}te ; Hood 7'. Palm, 8 Barr (Pa. St.), 237 ; Haldeman v. Martin, 10 Id. 369; Stiles v. White, 52 Mass. (11 Met.) 356. ^ Thomas v. Rumsay, 6 Johns. 26 ; Brown f. Hirley, 5 Up. Can. Q. B. R. (O. S.) 734 ; Webb v. Cecil, 9 B. Mon. 198. See post, § 251. § 12 1.] PUBLISHER. 163 involuntary (§ 67). Liability as publisher depends upon the occasion and upon whether, as to the person sought to be charged, the publication was voluntary or involun- tary, and generally upon the principles to which refer- ence has heretofore been made (§§ 50, 67, 68, 70). In the text-books and reports mtich is said on the subject of privileged publications, employing the term publication to mean as well the act of publishing as the matter pub- lished ; and these privileged publications are divided into such as are absolutely privileged and such as are conditionally privileged. Reserving the subject of priv- ileged publication to be hereafter considered at length, we limit ourselves here to stating that all involnntary cind some voluntary publications are privileged. § 121. Where a closed paper is given to an employee to deliver to another, it becomes the duty of the em- ployee to deliver such paper as directed, without inspect- ing its contents, and in making the delivery without ascertaining the contents of the paper, he performs a duty ; and, as the performance of a duty is an involun- tary act (§ 39), and cannot amount to a wrong (§ 42), if it happen that the paper contained defamatory matter, the employee incurs no liability. The act of publishing defa7?iatory matter was as to him involuntary. He did not know, and was not under any obligation to know, the contents of the paper carried and delivered by him. He could have known the contents of the paper only by a violation of his duty ; having simply performed his duty, no liability attached to him.' But if, in such a ' In Nutt's Case, as reported Barnard. 306, it is said : If a servant carries a libel for his master, he certainly is liable for what he does, though he cannot so much as read or write. Mr. Starkie (2 Starkie on vSlander, 29, note f), referring to this dic- tum, says: " It is impossible not to dissent from this doctrine, so expressed, without the qualification added that the servant had some reason to know that he was dis- charging an illegal mission." That the defendant could not read, and therefore was ignorant of the contents of the paper published may be urged in mitigation. (Rex 164 PUBLISHER. [CH. VI. case, the employee does in fact know the contents of the paper, he cannot excuse himself by saying he carried and delivered it as agent or employee (§ 67). Ordinarily it would be said that the non-liability of the employee, in the instance above put, arose from the absence of malice on his part in making the publication ; but this can only mean that he had a legal excuse for performing the act, namely, that the act, so far as it was wrongful, was as to him involuntary. This is the true ground for the decis- ions in which the non-liability is said to be the absence of malice. Decisions that cannot be explained on this ground were either erroneously decided or decided upon V. Holt, 5 T. R. 444.) To constitute a publication, such as will render the publisher liable to an action, the publication must be knowingly. (Layton v. Harris, 3 Harring. 406.) Intentional. (Viele v. Gray, 10 Abb. Pr. R. 12 ; iS How. Pr. R. 567.) One is not liable for a publication inadvertently. (Rex v. Abingdon, i Esp. Gas. 228.) As by delivering by mistake a paper out of his study. (5 Mod. 167; Holt on Libel, 290.) Or if it be stolen from him. (See Weir v. Hoss, 6 Ala. 881 ; Barrow v. Lew- ellin, Hob. 62; i Hill. Torts, 321, note"]; § 116, ante.) Reading a libel in the presence of another without knowing it before to be a libel, with or without malice, does not amount to a publication. (4 Bac. Abr. 458; Holt on Libel, 290.) But if he who has either read a libel himself, or has heard it read by another, do afterwards maliciously read or repeat any part of it in the presence of others, or lend or show it to another, he is guilty of an unlawful publication of it. (Hawk. P. G. eh. 73, § 10; Holt on Libel, 291.) Reading a libel by command of his father or master is not an actionable publication — so said in Gomyn's Dig. tit. Libel, B, II, and cited George on Libel, 162. If a man delivers by mistake a libelous paper out of his study, he would probably be held liable civilly, for the publication was by his carelessness. (Mayne v. Fletcher, 4 M. & Ry. 312; 2 Stark. Sland. 30, note z.) "The mere act of communicating that which is slanderous will not subject a party even to civil liability without some degree of culpability on his part. If, for instance, a servant or agent were in the ordinary course of his duty to deliver a sealed libel, without any knowledge of its contents, though he were thus the actual instrument of publication, yet if he acted but as the ageat of another, without any reason for suspecting that any wrong was intended, he would not subject himself to any civil, still less to any criminal responsibility." (i Starkie on Libel, 226 [227].) In an action against the defendant for publishing libels, it appearing that five packets, addressed to individuals and inclosed in one addressed to him, had been received at the coach-office where he was porter, and he delivered them ; held that if the jury found that he did so in the course of his business, and in ignorance of the contents, he was not liable; but being prima fade liable, it was for him to show such ignorance. (Day v. Bream, 2 M. & Rob. 54.) § I^-^-] PUBLISHER. 165 erroneous grounds. The true ground for the decision in Smith V. Ashley^ was, the absence of ''conscious viola- tion' of hiw, and "culpable knowledger^ The work of fiction pubUshed had nothing on its face to indicate that it reiiected upon any individual or his affairs ; the pub- lisher did not know, and had no means of knowing, that it reflected on any individual or his affairs; in so far, therefore, as it did reflect upon any individual, it was as to the publisher an involuntary act, equally as much as the unconscious delivery by an employee of defamatory matter by the direction of his employer. This subject will be further discussed hereafter, when we come to treat of defenses. § 122. Upon the principles of law condensed in the expression respondeat superior, one is responsible not only for what he does or omits to do in his own proper person, but also for all that his agents may do or omit to do in and about his business. Every one is charged with the duty to exercise such a vigilance in the selec- tion of agents, animate and inanimate, as are competent and adequate to the performance of the business they may be required to transact, and the ends they may be designed to accomplish ; he must exercise such^ a control ove? them that in the transaction of his business they 1 An action for a libel cannot be maintained against the publisher of a news- paper, if he has no knowledge at the time of publication that the article complamed of is libelous. Hence, if he publishes an article which he believes to be a fictitious narrative, or mere fancy sketch, and does not know that it is applicable to any one, he cannot be held responsible, although it was intended by the writer to be libe ous, and to apply to the party who brings the action. In such case, the writer only is answerable to the party libeled. (Smith z/. Ashley, 11 Met. 367.) In Wilson v. Stephenson (2 Price, 282), the jury found the words charging plaintiff with being a murderer were spoken by defendant, but not maliciously, on which a verdict was rendered for the defendant. The court refused a new trial. 2 See note to § 87, ante. " He who shall be convicted in the said case either ought to be a contriver of the libel, or a procurer of the contriving of it, or a mah- cious publisher of it, knowing it to be a libel." (9 Co. 59 ; Mo. 813; George on Libel, 107.) 1 66 PUBLISHER. [CH. VI. neither do nor omit to do any act amounting to a wrong. He cannot escape this liabihty by omitting to exercise this vigilance; for such omission is itself negligence. It is upon this principle, and not upon any presumption of malice, that an employer or principal is held responsible for the act of his servant or ao-ent.^ § 1 23. The proprietor of a newspaper is responsible for all that appears in its columns, although the publication ' Legal criminality is merely legal responsibility, and may exist where there is no moral criminality whatever. (Holt on Libel, 53.) Malice, in legal understanding, implies no more than willfulness {Id. 55; note i, p. 130, a?ite ; Rounds v. Delaware R. R. Co. 10 Sup. Ct. Rep. [3 Hun], 329) ; and between 7iegligence and willfulness there is no difference but of degree. (Bramwell, B., Mangan v. Atterton, Law Rep. I Ex. 240.) Negligence embraces acts of commission as well as of omission, and diligence implies action as well as forbearance to act. (Grant v. Mosely, 29 Ala. 302.) But the only principle on which a man can be rendered liable for the Avrong- ful acts of another, is that such a relation exists between them that the former, whether he be called principal or master, is bound to control the conduct of the latter, whether he be agent or servant. The maxim of the law is respondeat su- perior. (Blackwell v. Wiswall, 14 How. Pr. R. 258.) The rule of liability [of a principal for the acts of his agents], is not based upon any presumed authority in the agent to do the acts, but upon the ground of public policy. (Lee v. Village of Sandy Hill, 40 N. Y. 448 ; Farmers' Bk. v. Butchers' Bk. 16 N. Y. 133.) The wrongful act is the servant's in fact and the principal's by construction. (Bruff v. Mali, 34 How. Pr. R. 344.) "A ser\'ant in a glass-house nowise employed in filling the pots, and not having anything to do with the manage- ment of them, threw in some broken glass to secrete it from his master — held this rendered the master liable to the penalty for putting materials into a pot without no- tice to an excise officer. (Atty. Gen. v. Perrin, cited in appendix No. VI, to Evans' Pothier on Obligations.) It is said to be the law that a master is responsible for all wrongful acts of his servant, within the scope of his employment, and in executing the matter for which he was engaged at the time. See Allen v. London & S. W. R'way, Law Rep. 6 Q. B. 67 ; Rounds v. Delaware R. R. Co. 10 Sup. Ct. Rep. (3 Hun), 329. In an an action for a libel contained in a letter, proof that it was written by de- fendant's daughter, who was authorized to make out his bills and write his general letters of business, is not sufficient, unless it can be shown that such libel was writ- ten with the knowledge of or by the procurement of the defendant. (Harding v. Greening, i Moore, 477; i Holt N. P. 531 ; 8 Taunt. 42.) Writing the letter was not within the scope of the daughter's authority to act for her father. {Id.) A parent is not liable as such for the wrongful acts of his child. (Tifft v. Tifft, 4 Denio, 175 ; and see Moon v. Towers, 8 Com. B. N. S. 611.) If an attorney introduces slanderous matter into the pleadings, without the direc- tion of his client, the client is not responsible. (Hardin v. Cumstock, 2 A. K. Marsh. 4S0.) And so by statute in Louisiana. § j2^] PUBLISHER. 1^7 may have been made without his knowledge, in his ab- sence, and contrary to his orders. His liability is not on the -round of his being the publisher, nor of bemg pre- sumed to be the publisher, but because he is responsible for the acts of the actual publisher.^ , •The proprietor of a newspaper is responsible for whatever appears in its col- umns It is unnecessary to show that he knew of the publication, or authorized it n ff . B nn t 4Sandf. i.o), for he is liable even though the publication was ^Zl Z U. absence and without his knowledge, by an agent to f^^J^^^^ express instructions to publish nothing exceptionable. P^^" ' ^^^^ ' ™ might be brought in by the author of the libel. (Dunn v. Hall, i Cartel [Ind.], ^4^ • and see. Curtis v. Mussey, 6 Gray [Mass.] 261.) An action for a libel lies against the proprietor of a gazette edited by ano her. though the publication was made without the knowledge f -^^P-l^';^^;;^^ jfj dres z. Wells, 7 Johns. 260; and see Buckley v. Knapp, 4S Mo. 152 McDonald z-. Woodruff. 2 D 11 Cir. Ct. R. 244 i Pe-t .. Times Newspaper, 25 La. Ann. 17a) But i a printing press and newspaper establishment be assigned to a person merely as security for a debt, and the press remains in the sole possession and man- Tglln of the assignor, the ownership of the person holding the security oHien is not such as will render him liable to an action as proprietor. (Andres v. Wells, 7 •^°T;-etiver of a newspaper establishment, appointed to take charge thei-eof, and conUil the publication^f'the newspaper, would be respoiisib e ^^r^J^^^^^^ matter published in the newspaper while the same was under his contrd (Mam A^ ,\rh.\cV ziPaiee 47Q ) Although a receiver having charge of the publica- :;2Z^^^!^^^^^or^^is published, his responsibility is not to be'es ed by a^ action. A receiver is an arm of the court, he is not to be sued. (Campl. Barney, 6 Sup. Ct. Rep. [T. & C] 622.) The proper mode of procedui. s by petition to Uie court appointing the receiver. This was the course pursued in Stubbs . Marsh. 15 Law Times. N. S. 312. In that case damages were awarded the petitioner, a;d it being found that the libel was published through he careless- n s of the re elvers, they were ordered personally to pay the costs of the petition. Ireceiver of a railroad was held liable as a common carrier, (bee Blumenthal .. Brainerd, 3S Vt. 40S; Paige .. Smith, 99 Mass. 395; Kerr on Receivers, 193, -^^/ Camp .. Barney. 6 Sup. Ct. Rep. [T. & C] 622.) A receiver was appointed to carry on the publication of a newspaper in Dayton.. Wilkes. 17 How. Pr. R. 510. Kelly V. Hutton, 17 Weekly Rep. 425- The editor and publisher of a newspaper is answerable in law, if its contents are libelous unless the libelous matter was inserted by some one without h.s order and a-ainst his will. (The Commonwealth v. Kneeland, Thacher's Crirn. Cas. 34('-) " The liability of the proprietor for all that appears in his paper, proceeds froin this • He puts the instrument for wrong doing in the hands of the wrong-doer He may' be compared to one who keeps a dangerous animal, and who is bound so to keep it that it does no harm ; if harm ensues he must answer for it. (bee Domat, 8 i=;6S and note— One maliciously setting a bear loose.) Rex r Gulch i Moo. & Mai. 433 : on the trial of defendant for publi..h.ng a libel in a newspaper of which he was the proprietor, it was contended on his behalf 1 68 PUBLISHER. [CH. VI. § 1 24. The liability of the proprietor of a newspaper is shared in common with the proprietor of a printing press, a printer, book publisher, and bookseller. The proprietor of a bookstore is responsible for the contents of every book and paper sold in his store.' that he was not liable, because he took no part in the publication of the newspaper ; but he was held liable and the court said : "A person who derives profit from and who furnishes means for carrying on the concern, and intrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears ; " and see Rex v. Alexander, i Moo. & Mai. ' 437; 3 Albany Law Jour. 46; and see Atty. Gen. v. Siddon, i Cr. & Jer. 220. ^ " It is not«material whether the person who disperses libels is acquainted with their contents or otherwise, for nothing would be more easy than to publish the most virulent papers with the greatest security, if the concealing the purport of them from an illiterate publisher would make him safe in dispersing them. (2 Starkie on Slander, 30, note z ; Moore, 627 ; Wood's Inst. 431 ; Bac. Abr. tit. Libel, 458 ; see note, p. 163, ante^ Nutt's Case, Fitzg. 47 ; Barnard. 306 : The defendant was tried for publishing a libel. It appeared in evidence the defendant kept a pamphlet shop, and that the libel was sold in defendant's shop, by her servant, for her account, in her absence, and that she did not know the contents of it, nor of its coming in or going out. This was held to be a publication by the defendant, but a jury was withdrawn. Rex V. Dodd, 2 Sess. Gas. 33 : The defendant was tried for publishing a libel. It was insisted for the defendant that she was sick, and that the libel was taken into her house without her knowledge. This was held no excuse ; the law presumed her acquainted with what her servant did. In Rex V. Almon, 5 Burr. 2689, the liability of booksellers was much discussed, and the court expressed an opinion that the sale of a libel in a bookseller's shop was prima fade evidence of a publication, though not so conclusive but that it might be rebutted by circumstances. It is said (2 Starkie on Slander, 34), " But the defend- ant may rebut the presumption by evidence that the libel was sold contrary to his orders, or clandestinely ; or that some deceit or surprise was practiced upon him; or that he was absent under circumstances which entirely negative any presumption of privity or connivance." And reference is made to Rex v. Almon, supra, and to Woodfalls' Case, where the publication was by a servant of the defendant, the de- fendant being at the time within prison walls. In Rex v. Fisher, i Moo. & Mai. 433, it is said the presumption arising from proprietorship of a newspaper may be rebutted, and an exemption established. If the publication is made without the consent of the writer, the offense is not complete as to him. (Weir v. Hoss, 6 Ala. 881. See Holt on Libel, 294.) As if the writing be stolen from him. (Mayne v. Fletcher, 9 B. & Cr. 382.) In Chubb v. Flanaghan, 6 Car. & P. 431, it was held that if a publication con- sists in merely selling a few copies of a periodical in which the libel was contained among the articles, it was a question for the jury whether the defendant kiieiv what he was selling. CHAPTER VII. CONSTRUCTION OF LANGUAGE. Actionable quality of language dependent upon its con- struction—All language ambiguoiis or nnambig7W2cs —Difficult to determine what is and what is not am- biguous—Points upon which ambiguity may arise— Causes of ambiguity— Ambiguity, how explained— Different effect of language concerning a person and of language concerning a thing— Materiality of ques- tions, ''what person or thing affected, and whether the person is affected as an individttal merely, or in some acquired capacity— Principles of construction ; before verdict; after verdict— Examples of cojistruction— Divisible matter. § 125. Language as a means for effecting a wrong must be either such as is actionable or such as is not ac- tionable. To which of these divisions any particular lan- guage is to be referred may depend upon the construc- tion* of the language in question. Anterior, therefore, to an inquiry into what language is and what language is not actionable, it is proper here to consider at least the principal rules by which alleged defamatoiy language is construed. The question as to when the construction is with the court, and when by the jury is discussed in a subsequent chapter (§§ 281-286). § 126. Language may be ambiguous or unambig- uous.' It is not easy in every case to determine what is 1 "Words or signs maybe divided into three classes: (i) those which bear an obvious and precise meaning on the face of them ; as if A. say to B., you viurdered C. ; (2) those which on the face of them are of dubious import, and are capable either of a criminal or innocent meaning ; as if A. says to B., you were the death of 170 CONSTRUCTION OF LANGUAGE. [cil. VII. ambiguous and what is unambiguous language. Lan- guage may be unambiguous on its face, which, by reason of some circumstances connected with it, is in fact am- biguous. This is always the case with language used ironically. When language is unambiguous on its face, it must be construed as unambiguous, unless its ambiguity be shown ; and on the one who asserts the ambiguity of language unambiguous on its face, is the burden of estab- lishing the ambiguity.' § 127. When language is ambiguous, the ambiguity may be either (i) whether the language concerns a per- son or a thing, or (2) what person or what thing it con- cerns, or (3) if it concerns a person does it concern him as an individual merely or in some acquired capacity, as in an office, trade or profession ; (4) what is the import or signification of the language, and (5) is the charge or matter divisible or indivisible. C. ; (3) those which are prima facie and abstractedly innocent, and which derive their offensive quality from some collateral or extrinsic circumstances ; as if A. says to B., you did not murder Q,., which words, from the ironical manner of speaking them, may convey to the hearers as unequivocal a charge of murder as the most direct imputation." (i Starkie on Slander, 46.) ' "Where the words of themselves impute a larceny, and are unaccompanied by an explanation showing the hearers that they were not so intended, the defendant must show that they referred to a transaction that was not larceny, and were so un- derstood by all who heard them. And where the plaintiff had taken wood through mistake, and defendant, knowing the excuse for taking it, persists in charging him with stealing, in reference to such taking, he cannot fall back and rest upon the plaintiff's innocence." (Phillips v. Barber, 7 Wend. 439 ; and see Maybee v. Fisk, 42 Barb. 336.) "As doubtful or apparently innocent words may by circumstances be shown to be actionable, so may words apparently actionable be explained by circumstances to have been intended and understood in an innocent sense. Thus, though the de- fendant should say, Thou art a murtherer, the words would not be actionable if the defendant could make it appear that he was conversing with the plaintiff concerning unlawful hunting, when the plaintiff confessed that he killed several hares with cer- tain engines, upon which the defendant said, Thou art a murtherer, meaning a murtherer of hares so killed. 4 Co. 13." (i Starkie on Slander, 98; § 134, n.) Where the words are defamatory on their face, the burden is on the defendant to show they have not the meaning they plainly import. (Myers v. Dresden, 40 Iowa, 660.) §§ 128-130.] CONSTRUCTION OF LANGUAGE. 17I § 128. The ambiguity may be patent or latent, that is to sav, the ambiguity may be inherent in the language and apparent upon its faee, or the ambiguity may arise by reason of the language in question being connected with some other language or event in such a manner as that its accustomed signification is affected and changed by such other language or event. § 1 29. The ambiguity of language unambiguous upon its face is shown, and the ambiguity of language in every case is explained, by introducing the other language or event which exhibits or which explains the ambiguity, and by alleging the supposed true meaning of the lan- guage in question. The manner by which ambiguity is shown and explained is by allegations in pleading, termed averments, colloquia, and innuendoes, the nature and offices of which several allegations will be considered under the head of Pleading.' § 130. Whether the language concerns a person or a thing, /. e., the affairs of a person (§§ 25, 27, 28), is material in this respect : that language, when it concerns a person and is discommendatory, is always, in the ab- 1 An averment is to ascertain that to the court which is generally or doubtfully expressed, so that the court may not be perplexed of whom, or of ivhat, it [the lan- guage] ought to be understood, and to add matter to the plea to make doubtful thin^'gs clear. A colloquium serves to show that the words were spoken in reference to the matter of the averment. An innuendo is explanatory of the subject-matter sufficiently explained before, and it is explanatory of such matter only ; for it can- not extend the sense of the words beyond their own meaning unless something is put upon the record for it to explain. (Van Vechten v. Hopkins, 5 Johns. 220 ; see post, §§ 308, 323. 335-) , . . , It seems that in some instances where the language is unambiguous on its lace, the plaintiff will not be allowed to treat it as ambiguous, and give it a meaning different from that it ordinarily bears. Thus the words spoken of a dyer were : " Thou art not worth a groat." The plaintiff alleged that at E., where the words were spoken, they were all one as calling him bankrupt. The court held the aver- ment idle, because the words in themselves imply a plain and intelligible sense. (Meade v. Axe, Mar. 15, pi. 37.) " It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning." (McCluskey r. Cromwell, 11 N. Y. 601 ; Bartlett v. Robinson, 6 Trans. App. 166.) 172 CONSTRUCTION OF LANGUAGE. [CH. VII. sence of any evidence to the contrary, regarded as iin- called for, as published without any lawful excuse, and as not to be believed or considered as true unless its truth be established ; or, as the phrase is, such language is presumed to be malicious and false. But as to lan- guage concerning a thing, no such presumption is in- dulged ; and upon those who allege language concerning a thing to be false and malicious is the burden of estab- lishing those conclusions by other evidence than that afforded by a mere publication of the language. And besides, to give a cause of action for language concern- ing a thing, damage, general or special, must in all cases be alleged and proved.' While a distinction has been actually maintained between language concerning a person and language concerning a thing, the essential grounds of the distinc- tion seem not to have been clearly, nor indeed rightly, apprehended. That branch of the law of libel known as " slander of title," has been regarded as something dis- tinct from slander and libel, properly so called, whereas in reality slander of title is but a portion of that divis- ion of the law relating to wrongs by language which includes language concerning things.^ The rules relat- ' See Swan v. Tappan, 5 Gush. 104 ; Ingram v. Lawson, 6 Bing. N. C. 212 ; 8 Scott, 571 ; Evans v. Harlow, 5 Q. B. 624 ; Kendall v. Stone, 5 N. Y. 14 ; rev'g s. c. 2 Sand. 269 ; Hargrave v. Le Breton, 4 Burr. 2422 ; Smith v. Spooner, 3 Taunt. 246 ; Bailey v. Dean, 5 Barb. 297 ; Linden v. Graham, i Duer, 670 ; Tobias v. Har- land, 4 Wend. 537 ; McDaniel v. Baca, 2 Cal. 326 ; Hamilton v. Walters, 4 Up. Can. Q. B. Rep. O. S. 24. 2 Debated if slander of title within the statute (21 Jac. I, ch. xvi), actions on the cz.%t. for slander, held by three judges against one, that it was not ; that "action on the case for slander " referred to the person of a man and not to the title of lands. For this is not properly a slander, but a cause of damage. (Lowe v. Harw^ood, Cro. Car. 140.) "An action for slander of title is not properly an action for words spoken or libel written and published, but an action on the case for special damage sus- tained by reason of the speaking or publication of the slander of the plaintiff's title. This action is ranged under that division of actions in the digests and other writers on the text law, and is so held by the courts at the present day. Malachy v. Soper, 3 Bing. N. C. 371 ; 3 Scott, 723." (Heard on Libel, § 59.) "An action of slander § 13 1-] CONSTRUCTION OF LANGUAGE. 1/3 ing to slander of title apply to all language concerning things, but where the language concerns both a person and a thing, it is governed by the rules which relate to language concerning the person. The question whether the language concerns a person or a thing arises in cases of alleged privileged publications in the form of criti- cisms on books, works of art, or places of public enter- tainment. It must be determined in those cases whether in point of fact the language of the criticism was con- cerning the thing : the book, the work of art, the enter- tainment, or concerning the person : the author, the artist, or the proprietor of the place ; and according to the decision of that question may the language be, or not be, actionable. We shall advert to this hereafter, in treating of the actionable quality of language concern- ing things, and of defenses (§§ 203, 254). § 131. What person or what thing the language con- cerns is material ; as upon the answer to that question depends whether the party complaining has, or has not, any right to redress. Of course unless the language con- cerns either the person or the affairs of the person com- plaining, no wrong can have been done him of which he can rightfully complain ' (§ 343). of title is a sort of metaphorical expression." (Maule, J., Pater v. Baker, 3 C. B. 831.) "The cause of action is denominated slander of title by a figure of speech, in which the title to land is personified and made subject to many of the rules ap- plicable to personal slander, when the words in themselves are not actionable." Gardiner, J., Kendall v. Stone, 5 N. Y. 14; see post, note to § 150.) ' In an action for scandalous words, it is requisite that "the person scandalized be certain." (James v. Rutlech, 4 Coke, 17.) "No writing whatever is to be esteemed a libel unless it reflects upon some particular person." (Hawk. P. C. ch. 79. § 9-) After quoting the foregoing sentence, Holt (Holt on Libel, 246) adds : " This is unquestionably true, as it relates to the action on the case for slander, in whicli the party complaining must show himself to be meant by the libel." (Holt on Libel, 247 ; Harvey v. Coffin, 5 Blackf. 566.) It is not material whether the person is described nominally or indirectly, provided his identity be ascertained. (Sumner v. Buel, 12 Johns. 475.) Identity is presumed from identity of name. (Jackson v. Goes, 13 Johns. 518 ; Jackson v. King, 5 Cow. 237; Jackson v. Cody, 9 Cow. 140; Hamber v. Roberts, 18 Law Jour. Rep. N. S. 250 C. P. ; 7 C. B. 860; 13 174 CONSTRUCTION OF LANGUAGE, [CH. VII. § 132. When the language concerns a person, it is material further to inquire whether it concerns him as an Sewall V. Evans, 4 Q. B. 626 ; Simpson v. Dismore, 9 M. & W. 47 ; i Dowl. P. C. N. S. 357; Hatcher v. Rocheleau, 18 N. Y. 86; but see Jackson v. Christman, 4 Wend. 277; Whitlocke v. Musgrove, i C. & M. 511; Jones v. Jones, 9 M. & W. 75; Greenshields v. Crawford, Id. 314; I Dowl. P. C. N. S. 439.) Wliere the language is not applicable to the plaintiff (does not concern the person) no averment or innuendo can make it so. (Solomon v. Lawson, 8 Q. B. 823 ; Ingram v. Lawson, 6 Bing. N. C. 212 ; 8 Scott, 571 ; Dottarer v. Bushey, 16 Penn. 208 ; Swan v. Tappan, 5 Cush. 104 ; Vin. Abr. Act. for Words, H, b, 12, 13 ; Sanderson v. Caldwell, 45 N. Y. 398.) Where the lan- guage is applicable to the plaintiff, although not so upon its face, to maintain an action therefor, he must, by averment, introduce such facts as make it apparent that persons who knew him would, on hearing or reading such language, perceive its application to him. (Miller v. Maxwell, 16 Wend. 9.) He cannot show the appli- cation of the language to himself by an innuendo alone. (Wilson v. Hamilton, 9 Rich. Law (So. Car.), 382 ; Maxwell v. Allison, 11 S. & R. 343 ) Turner v. Merry- weather, 7 C. B. 251 ; Tyler z/. TiUotson, 2 Hill, 507: see § 343, /^-f^-) Thus,itisnot sufficient to allege that the defendant said, " R. saw a young man (meaning the plaintiff) ravishing a cow." (Harper v. Delph, 3 Ind. 225.) Or, W. or somebody altered the indorsement on a note. (Ingalls v. Allen, Breeze, 233.) I know of but one man who owes me enmity enough to do such a thing, and you know whom I mean. (Robinson v. Drummond, 24 Ala. I74-) A. was supervisor of an election, at which there was false swearing. (Lewis v. Soule, 3 Mich. 514.) And held that the postmaster of J. could not maintain an action for words spoken of a missing letter containing the resignation of one \l. : " I do not think M.'s resignation has gone to Washington. I have no doubt it was embezzled at J." (Taylor v. Knee- land, I Doug. 67.) For the words, "All the bravery you (A.) ever showed was sleeping with your sisters," held that the sisters of A. could not sue. (Mallison v. Sutton, I Smith (Ind.) 364.) For calling W. a bastard, the mother of W. could not sue for the imputation upon her without proper averments connecting the allegation with her. (Maxwell v. Allison, 11 S. & R. 343; Hoar v. Ward, 47 Vt. 657.) An action may be supported for language in which the plaintiff is described directly or in- directly, though his name is not given, in which case the whole of the publication must be considered, in determining whether the aveiTnents be sufficient to make it applicable to the plaintiff. (Cook v. Tribune Association, 5 Blatch. C. C. 352.) With proper averments showing the plaintiff to be intended, one may bring an action for words concerning on their face "his/rzVW" (Clark v. Creitzburgh, 4 McCord, 491); or the "surgeon of whiskey memory" (Miller v. Maxwell. 16 Wend. 9); or the "man at the sign of the Bible" (Steele v. Southwick, 9 Johns. 214); or O. B. (O'Brien v. Clement, 16 M. & W. 159); or "desperate adventurers" (Wakley v. Healey, 18 Law Jour. 241 C. P.); "the writer in the Register vi\\o was deprived of a twopenny justiceship for malpractice in packing a jury " (j\Iix v. Woodward, 12 Conn. 262) ; and see " One who edits the Times" (Tyler v. Tillotson, 2 Hill, 507); " Filly Horse," (Weir v. Hoss, 6 Ala. 881). Goody Two Shoes, meaning Nancy Irwin (The People v. Chace, i Miss. St. Cas. 30). Where B. had been accused of stealing a tray of biscuits, and A. said in the hearing of B. and of other persons, that if they did not look out he would make the tray of biscuits roar, held, that with proper averments connecting B. with this language of A., B. might maintain an action § 132.] CONSTRUCTION OF LANGUAGE. /:> individual merely, or in some acquired capacity, as in an office, trade or profession, because language which would against A. (Briggs v. Byrd, 11 Ired. 353.) The words " I am a true .subject, and thou servest no true subject," spoken to the servant of I. S., held sufficient to give a right of action to I. S. (Vin. Abr. Act. for Words, C, b, t.) And so of the words, " Thy master, Mr. Browne, hath robbed me." (/. Blanchard, 42 N. Hamp. 137 ; Ellis v. Kimball, 16 Pick. 132.) Where the language affects a partic- ular class of men, as, for instance, men of the^gown, it gives no right of action to an individual of that class. (Ryckman v. Delavan, 25 Wend. 186 ; rev'g White f'. Dela- van. 17 Wend. 49 ; and see Ellis v. Kimball, 16 Pick. 132 ; Le Faun v. Malcolmson, i Ho. of Lords Cas. 637.) Thus, where Ensign Sumner brought an action against Buel for defamatory matter published by Buel, reflecting on the character of the officers generally of the regiment to which the plaintiff belonged, it was held by a majority of the court that the action coultl not be maintained, and that the appropriate remedy in such a case was indictment. (Sumner v. Buel, 12 Johns. 475.) An information may issue in such a case. (See Rex v. Baxter, 12 Mod. 139 ; 2 Ld. Raym. 879 ; Rex V. Osborne, 2 Barnard. 138 ; Kel. 230, pi. 183 ; Rex v. Griffin, Rep. temp. Hard- wicke, 39 ; Rex v. Home, Cowper, 672 ; Holt on Libel, 249 ; Cooke on Defamation, 215.) In Scotland the rule is different. There a civil suit was sustained by a lieuten- ant colonel, in behalf of his regiment, for calling the regiment a regiment of cowards and blackguards. (Shearlock z: Beardsworth, i Murray's Rep. of Jury Cas. 196 ; and see Palmer v. City of Concord, 48 N. H. 211.) Where the defamatory matter is concerning a class, as an unincorporated fire company, the members of the class cannot maintain a joint action. (Giraud v. Beach, 3 E. D. Smith, 337.) A man may be libeled, not by name, or any specific description of himself, but under some such description of persons as includes him with others— as all the brewers in a designated portion of a city. (Ryckman v. Delavan, 25 Wend. 186 ; rev'g White v. Delavan, 17 Wend. 49; and see Le Faun v. Malcolm.son, i Ho. of Lords^'cas. 637.) And " a scandal published of three or four, or any one or two of them, is punishable at the complaint of one or more or all of them." (Holt on Libel, 247 ; Harrison v. Bevington, 8 C. & P. 807.) Thus, where there was an indictment against si.xteen persons for conspiracy, and I. S. said the defendants were those who helped to murder W. N., held, either of the sixteen defendants might have his action. (Vin. Abr. Act. for Words, C, b, 5 ; and see Forbes v. Johnson, 11 B. Mon. 4S; Strauss 176 CONSTRUCTION OF LANGUAGE. [CH. VII. not be actionable if it concerned one as an individual merely, may be actionable if it concerns him in his office, trade, or profession (§ 1 79). § 133. The different effect which in certain cases is attributed to written as distinguished from 07'al language, does not extend to the construction of language with a V. Meyer, 48 111. 385 ; Chandler v. Holloway, 4 Port. 17; and see Parties, post.) And where the charge was against the deputy lieutenants engaged in suppressing a riot, held one of such lieutenants might sue. (Morthland v. Cadell, 4 Paton, 3S5 ; Boyd Kinnear's Dig. of H. C Gas. 227.) But where the allegation was that a num- ber of articles had been put into the market, and fraudulently sold as antiquities, held that a dealer in antiquities could not maintain an action. (Eastwood v. Holmes, I Fos. & F. 347.) Where the intention to apply defamatory remarks to the prose- cutor is rendered doubtful and ambiguous by the defendant having left blanks for names, or from his having given merely the initials or introduced fictitious names, it is always a question for the opinion and judgment of the juiy whether the prose- cutor was the party really aimed at. (2 Starkie on Slander, 32 ; The State v. Jean- dell, 32 Penn. State Rep. 475 ; Mix v. Woodward, 12 Conn. 262 ; Ryckman v. Delavan, 25 Wend. 186.) For this purpose the judgment and opinion of witnesses who, from their knowledge of the parties and the circumstances, are able to form a conclusion as to the defendant's intention and application of the libel, is evidence for the information of the jury. (2 Starkie on Slander, 321). And he adds in a note : Lord EUenborough held that the declarations of spectators while they looked at a libelous picture, publicly exhibited in an exhibition room, was evidence to show that the figures portrayed were meant to represent the parties alleged to have been libeled. (Du Bost v. Beresford, 2 Camp. 512 ; and see Starkie on Evidence, part iv, p. 861.) Where the plaintiff proved that the defendant spoke certain words of her, by the name of Mrs. Edwards, the defendant was not allowed to show that, in other conversations, he had used similar words respecting another Mrs. Edwards. (Patterson v. Edwards, 2 Oilman, 720.) In New York, a witness is not allowed to state his conclusion from the facts as to the intention of the defendant to apply the words or libel to the party or circumstances as alleged. (Van Vechten v. Hopkins, 5 Johns. 211; Gibson £/. Williams, 4 Wend. 320.) In some other States witnesses have been allowed to testify as to the sense in which they understood the words, and the application of the words to the plaintiff. (Morgan v. Livingston, 2 Rich. 573 ; Miller v. Butler, 6 Cush. 71 ; Leonard v. Allen, 11 Gush. 241 ; McLaughlin V. Russell, 17 Ohio, 475 ; Goodrich v. Davis, 11 Mete. 473 ; Goodrich v. Stone, 11 Mete. 486; AUensworth v. Coleman. 5 Dana, 315; White v. Sayward, 33 Maine, 322 ; Mix V. Woodward, 12 Gonn. 262 ; Smart v. Blanchard, 42 N. H. 137; Smaley V. Stark, g Ind. 386 ; Tompkins v. Wisner, i Sneed, 458 ; Commonwealth v. Buck- ingham, Thatcher's Grim. Gas. 29.) But the rule adopted in New York appears to have been followed in Snell v. Snow, 13 Mete. 278 ; Rangier v. Hummell, 37 Penn. St. Rep. 130; McGue v. Ferguson, 73 Id. 333; Briggs v. Byrd, 11 Ired. 353.) How the hearers understood the words is for the jury. (McLaughlin v. Bascom, 38 Iowa, 660.) § 1 33-] CONSTRUCTION OF LANGUAGE. 1 77 view to determine its proper meaning/ For the purpose of its construction, language is to be regarded not m'erely in reference to the words employed, but according to the sense or meaning which, all the circumstances of its pub- lication considered, the language may be fairly presumed to have conveyed to those to whom it was published. The language is always to be regarded with reference to wiiat has been its effect, actual or presumed, and the sense is to be arrived at with the help of the cause and occasion of its publication.^ The court or the jury is to place itself in the situation of the hearer or reader, and deter- mine the sense or meaning of the language in question according to its natural and popular construction. ^ ' In Edsall v. Brooks, 3 Robertson. 295, it is said: " Although greater liberality seems to be exercised in the case of words when they are spoken, than when they are contained in written or printed articles, yet in both cases it must be one of in- tent ; of course a person must be presumed to have used words in their ordinary im- port among those who speak the language to which such words belong, in the com- munity in which they are uttered or published, but if they have acquired by local usage a different meaning, it must be presumed that they were used to convey the ideas attached to them by such usage, and such meaning may be alleged as a fact in the pleadings, and the evidence upon it may be passed upon by the jury. The mean- ing of all words in the English language is not everywhere the same, and the only criterion of the meaning of them, as used on any occasion, is the understood mean- ing in the community, society, or individuals to whom they were addressed ; it is only when understood in that sense they do the party at whom they are aimed any injury." "^ In actions for words we are to consider the words themselves and the causa dicendi, for sometimes in the first case they will bear an action, and yet when the causa dicendi is considered they will not. (Barclay, J., Mar. 20, p. 45.) " In case of slander by words, the sense of the words ouglit to be taken, and the sense of them appears by the cause and occasion of speaking them ; for setisus verborum ex causa dicendi accipiendus est." (4 Co. 18.) The construction which it behooves a court of justice to put on a publication which is alleged to be libelous, is to be de- rived as well from the expressions used, as from the whole scope and apparent object of the writer. (Van Buren, Senator, Spencer z'. Southwick, n Johns. 592.) ^ "Words are now construed by courts as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them." (Roberts v. Camden, 9 East, 93.) " It is quite clear, from all the modern authori- ties, that a court must read these words in the sense in which ordinary persons, or in which we ourselves, out of court, reading this paragraph, would understand them." (Tenterden, C. J., Harvey v. French, i Or. & M. 11.) We cannot pervert the words and alter the ordinary construction of them. (Bonyon v. Trotter, Sty. 178 CONSTRUCTION OF LANGUAGE. [CH. VII. It is said that words to confer a cause of action for slander or libel ought to be in the affirmative,' and that actions for slander do not lie upon inferences,^ but nega- tive or ironical language may be shown to be in fact affirmative, and if so found, has the like effect as affirma- tive words.3 " The law cannot be evaded by any of the 231.) The M'ords must be understood by the court in the same sense in which the rest of mankind would ordinarily understand ihem. (Woolnoth v. Meadows, 5 East, 463 ; Spencer v. Southwick, 11 Johns. 579.) We " ought to expound words accord- ing to their general signification" (Pratt, C. J., Button v. Heyward, 8 Mod. 24); or acceptation (Fallenstein v. Boothe, 13 Miss. 427 ; Ogden v. Riley, 2 Green, 1S6) ; their popular sense (Duncan v. Brown, 15 B. Men. 1S6 ; Hancock v. Stephens, 11 Humph. 507) ; their most obvious meaning (Hogg v. Wilson,.! N. & M. 216) ; or com- mon import (Thirman v. Matthews, i Stew. [2 Ala.] 384 ; Hogg v. Dorrah, 2 Port. 212) ; as understood by the hearer (Borland v. Patterson, 23 Wend. 422 ; Butterfield V. Buffum, 9 N. Hanip. 156 ; McGowan v. Manifee, 7 Mon. 314) ; and according to the ideas they are calculated to convey (Demarest v. Haring, 6 Cow. 76 ; Truman v. Taylor, 4 Iowa, 424) ; according to their natural meaning and common acceptation (Wright V. Paige, 36 Barb. 438 ; S. C. on appeal, 3 Trans. App. 134.) The jury are to be guided in forming their opinion [on the meaning of the alleged defamatory matter] by the impression which the words or signs used were calculated to make on the minds of those who heard or saw them, as collected from the whole of the cir- cumstances, (i Starkie on Slander, 60.) Words are to be taken in that sense in which they are generally understood, and when that puts upon them a guilty sense they are actionable. (Pike v. Van Wormer, 6 How. Pr. R. 99 ; Dias v. Short, 16 Id. 322 ; Walrath v. Nellis, 17 Id. 72 ; Hughley v. Hughley, 2 Bayley, 592 ; Tuttle V. Bishop, 30 Conn. 80.) The words are to be taken in their natural meaning and according to common acceptation (Carroll v. White, 33 Barb. 618), and the vulgar intendment of the bystanders. (Somers v. liouse. Holt, 39.) ' Weblin v. Meyer, Yelv. 153. - Jenk. 302, pi. 72. To sustain an action, plaintiff must show (i) that the words used, either "of themselves or by reference to circumstances, are capable of the offensive meaning attributed to them ; (2) that the defendant did, in fact, use them in that sense." (l Starkie on Slander, 44.) "Words imputing crime must be pre- cise." {Id.) See note to § 1^2, post. ^ Words calculated to induce the hearers to suspect that the plaintiff was guilty of the crime alleged, are actionable. (Drummond v. Leslie, 5 Blackf. 453.) It is not necessary that the words in terms should charge a crime. If such is the neces- sary inference, taking the words altogether and in their popular meaning, they are actionable. (Morgan v. Livingston, 2 Rich. 573; Cass v. Anderson, 33 Vt. 182; Colman v. Godwin, 3 Doug. 90 ; 2 B. & Cr. 285 ; Commonwealth v. Runnels, 10 Mass. 51S.) "A libel in hieroglyphics is as much a libel as an open invective. Not only an allegory but a rebus or an anagram may be a libel." (Holt on Libel, 245 ; Sunderlin v. Bradstreet, 46 N. Y. 188.) The man that is painted with a fool's cap or coat, or with horns, or whose picture is drawn with asses' ears, is certainly § 133-] CONSTRUCTION OF LANGUAGE. 1 79 artful and disguised modes in which men attempt to con- ceal libelous or slanderous meanings ; " ' and the fact of language being ungrammatical, or such as is not usually abused. (I Wood's Inst. 445 ; Holt on Libel, 244; Du Bost v. Beresfoid, 2 Camp. 512 ; Mezzara's Case, 2 City Hall Recorder, 113.) "I know what I am, and I know what Snell is; I never buggered a mare. These words held to import a charge of buggery against Snell. (Snell v. Webbling, 2 Lev 150.) But the words, " I never came home and poxed my wife," held not capable of being construed as a charge that the party to whom the words were addressed had gone home and poxed his wife. (Clerk v. Dyer, 8 Mod. 290.) And so the words, "A man that would do that would steal," held not to amount to a charge of stealing. (Stees v. Kemble, 27 Penn. St. Rep. 112.) The defendant wrote a pamphlet called "Advice to the Lord Keeper, by a Country Parson," wherein he would have him love the church as well as the Bishop of Salisbury, manage as well as Lord Plavesham, be brave as another Lord, &c. The defendant was found guilty, and upon motion in arrest of judgment, it was urged that no ill thing was said of any person, and all he said was good of them ; but by the court the words were laid to be iionical, and the jury found them to be so and the motion was refused. (Reg. v. Browne, Holt, 435 I " Mod. 86 ; recog- nized, Andrews v. Woodmansee, 15 Wend. 232 ; Boydell v. Jones, 4 M. & W., 446 ; 7 Dowl Pr. Cas. 210.) So where the words were, " You will not play the Jew nor the hypocrite" (Rex v. Brown, Popham, 139; Hob. 215); "An honest lawyer" (Boydell "c/. Jones, 4 M. & W. 446; 7 Dowl. P. C. 210), they being alleged to have been spoken ironically, and so found by the jury, held to be actionable. "Sober moments" may impute drunkenness. (Sanderson v. Caldwell, 45 N. Y. 39S.) 1 Shaw, Ch. J., Commonwealth v. Child, 13 Pick. 19S. The court will regard the use of' fictitious names and disguises in a libel in the sense that they are com- monly understood. (The State v. Chace, Walk. 384.) "If. therefore, obscure and ambiguous language is used, or language which is figurative or ironical, courts and juries will understand it according to its true meaning and import ; and the sense in which it was intended is to be gathered from the context and from all the facts and circumstances under which it was used." (Shaw, Ch. J., Commonwealth v. Knee- land, 20 Pick. 206 ; and see Vanderlip v. Rose, 23 Penn. State Rep. [11 Harris], 82.) "One half of the English language is interpreted by the context." (Alderson, B., Dellevene v. Percer, 9 Dowl. P. C. 245.) A defamatory writing expressing only one or two letters of a name, in such a manner that from what goes before and follows after it must necessarily be under- stood to signify a certain person, in the plain, obvious, and natural construction of the whole, is to be understood as if the same were written in full. (Reg. v. Hurt, Hawk. PL Cr. 194; Rex v. Woodfall, Lofft, 776; Roach v. Read, 2 Atk. 469; Holt on Libel, 243.) If in a libel asterisks be put instead of the name of the party libeled, it is sufficient that the plaintiff should be so designated that those who know him may understand that he is the party meant. It is not necessary that all the world should understand that the plaintiff is the party intended. (Bourke v. War- ren, 2 C. & P. 307 ; and see in note 2, p. 180, and note i, p. I73» ««'"''■) l8o CONSTRUCTION OF LANGUAGE. [CH. VII. found in any dictionaiy,' will not suffice to prevent the law taking cognizance of such language, or of the mean- ing it properly conveys.^ 1 One " cannot protect himself from an action by the mere grammatical structure of the phrase." (Cowen, J., Cornelius v. Van Slyck, 21 Wend. 70.) " The etymol- ogy of words, or the grammatical construction of sentences, will be fallacious if fol- lowed as the only guides in the interpretation of language." (Borthwick on Libel, 142.) " Here is three cockch in this place we 7J0W them well, he is a 7tave, he cheats and rongs the country, and is the cur of a son of a whore." The indictment for these words was demurred to, because the words were not intelligible, but the court overniled the demurrer, and said " it would be hard that a court of justice must not understand what is spelt badly, when all the world besides makes no scruple to find the signification of the words." (Rex v. Edgar, 2 Sess. Cas. 29, pi. 33.) "Common sense is not to be deemed a stranger to legal process, but as ver)' influential in as- certaining the force and effect of words and sentences which, although technical, are to receive a sensible construction." (Parker, Ch. J., Commonwealth v. Runnels, 10 Mass. 518.) ^ Courts take judicial notice of the meaning of words and idioms in the ver- nacular language, (i Greenl. Ev. §5, citing 6 Vin. Abr. 491, pi. 6, 7, 8, tit. Court, C; Hoyle J/. Comwallis, i Stra. 387; Page v. Faucet, Cro. Eliz. 227; Harvey v. Brand, 2 Salk. 626 ; and see 7iote l, p, l?)2, post.) And no colloquium or innuendo is necessary to point their meaning. (Elam v. Badger, 23 111. 498 ; Forbes v. King, I Dowl. P. C. 672 ; Hoare v. Silverlock, 12 Adol. & Ell. N. S. 624 ; Homer v. Taunton, 5 Hurl. & Nor. 661.) Fuck is an English word, and no innuendo is nec- essary to point its meaning. (Edgar v. McCutchen, g Mo. 768.) In Hoare v. Silverlock (12 Adol. & Ell. N. S. 624), the court took judicial notice, without an innuendo, of the reproachful meaning of the term "frozen snake," and so in Ashley V. Billington (Carth. 231), of the term "Jezebel," and so of the terms "empirick" and "mountebank." (Vin. Abr. Act for Words, S, a, 12.) "He is off." (Black V. Flolmes, i Fox & Sm. 28.) In King v. Lake (2 Ventr. 18), the court said they could not take notice of "milk your purse," because it had not become an idiom ; and so of "bunter." (Rawlings v. Norburj', i Fost. & F. 341.) See as to " Man Friday," "gambling fracas," (Forbes v. King, i Dowl. 672); shooting out of a leather gun (Harman v. Delany, 2 Stra. 898). "Bogus pedlar" was said not to have acquired a meaning sufficiently definite to allow the court to take judicial notice of its import. (Pike v. Van Wormer, 6 How. Pr. R. loi ; 5 Id. 175.) And so of " blackmail." (Life Asso. of Am. v. Boogher, 4 Cent. Law Jour. 40 ; but see Stanley z/. Webb, 4 Sandf. 21.) "Bushwhacker." (Carry z/. Collins, 37 Mo. 324.) The law does not take notice of what a " cozener" is. (Walcott v. Hind, Hutt. 14); or the meaning of " tan money." (Day v. Robinson, i Ad. & El. 554.) " Woolcomber " held not to need an innuendo to show it means one who buys wool to work with. (Anon. Lofft, 322.) " Truckmaster," a word said not to be found in any dictionary, was used without an innuendo ; it was left to jury to decide if used in libelous sense. (Homer. z/. Taunton, 5 Hurl. & Nor. 661.) Doubted if the term "swindler" was one of which the court would take judicial notice. (I'Anson v. Stuart, i T. R. 748 ; but see Forrest v. Hanson, i Cr. C. C. 63; and post, note to § 174.) The £ourt refused to take notice that " hooked" is sometimes used to mean ^^ stole." (Hays § 1 34-] CONSTRUCTION OF LANGUAGE. l8l § 134. Whenever language charged to be defamatory has any reference to, or is connected with, any other language or event, which affects its meaning or effect, it must be construed in relation to such other language or event ; and this, although on the face of the alleged defamatory matter there is no reference to any other language or event/ In the absence, however, of any allegation or proof to the contrary, matter which has on its face no reference to any other language or event, will not be presumed to have any such reference, and must be construed as standing alonc.^ V. Mitchell, 7 Blackf. 117); or ^^goose-house" to mean " brothel." (Uyer v. Morris, 4 Miss. 214.) The court is to inform itself of the meaning of English words, although unusual and peculiar to a particular place (Parke, B., McGregor v. Gregory, 2 Dowl. N. S. 769; II M. & W. 2S7 ; Com. Dig. Act. for Defam. C), as healer of felons (Rolle Abr. 86) ; or Welsh words (Hobart, 126), Daffa-down-dilly , by averment meaning ambo dexter (Pearce's Case, Cro. Car. 382) ; and where particular English words have acquired some sense different from their natural one, an averment by way of inducement of that acquired sense is necessary ; an innuendo without sucli an aver- ment would be insufficient (McGregor v. Gregory, 2 Dowl. N. S. 769) ; so held of the terms black sheep and black legs. (/'i, nofe ; see Borthwick on Libel, 176; Mills' Logic, bk. iv, ch. v — The history of variations in the meaning of terms.) The word "screwed" or " simined," does not of itself import sexual intercourse, but in certain localities it may have that import. (Goles v. Haviland, Cro. Eliz. 250; Miles V. Van Horn, 17 Ind. 245; Rodeburgh v. Hollingsworth, 6 Ind. 339; Vin. Abr. Act. for Words, L, b, 7.) In London, England,///;;/ signifies common, bawd. (Dimmock v. Fawset, Gro. Gar. 393, pi. 5.) Healer of felons means, in some local- ities, aider of felons j limir means thief, and oiitpidter means receiver of felons (Vin. Abr. Act. for Words, L, (5, i, 6), and see Id. 4, 7, as to the word champertor and the phrase cut him out of doors ; and see note 2, page 180, ante. 184 CONSTRUCTION OF LANGUAGE. [cil. VII. cumstances. The circumstance that the act charged is physically or legally impossible, does not always prevent the language being actionable. The alleged test in such a case is the knowledge possessed by those to whom the language is published. Thus where the defendant attri- buted to the plaintiff sexual intercourse with a dog, and of having given birth to a litter of pups in consequence of such intercourse, it was held not to be a defense that such a result was impossible. But semble that it might have been a defense if it had been shown that the defendant and those who heard the words knew that such a result was impossible.' ' Kennedy v. Gifford, 19 Wend. 296. Courts cannot say judicially whether it be possible for a woman to have connection with a dog, or to have pups by him, but as it is not popularly believed to be impossible, the people not being presumed to know scientific facts, the injury to the plaintiff will be the same in either case, and the action will lie. (Ausman v. Veal, 10 Ind. 355 ; Cleaveland v. Detweiler, 18 Iowa, 299 ; Haynes v, Ritchey, 30 Iowa, 76.) " Thou art a bastard-bearing whore, and hadst two bastards." It was objected that these words spoken of a married woman were not actionable, because a married woman cannot have a bastard, but held actionable because they purported that she was not married when she had the bastards. (Stevens v. Ask, Sty. 424.) These words concerning a churchwarden, " Who stole the bell ropes, you scamp- ing rascal ? " Not actionable, because the property of the bell ropes was in the plaintiff as churchwarden, and as he could not steal his own property, the words im- puted no felony. (Jackson v. Adams, 2 Bing. N. C. 402 ; 2 Scott, 599.) " If a man says to a miller who keeps a corn mill, thou hast stolen three pecks of meal, an action lies ; for, although the corn was delivered to him to grind, nevertheless, if he steal it, it is felony, being taken from the rest." (i RoUe's Abr. 73, § 16, cited Nichols V. The People, 17 N. Y. 117; and see Hume v, Arrasmith, i Bibb, 165 ; and § 169, post!) In an action for slander the words were : " You are a thief ; you robbed Mr. L. of ;^30." The words were spoken in the hearing of B. and of several strangers. B. knew that the words did not mean to impute felony, but meant to impute that the plaintiff had improperly obtained ;^30 from Mr. L. to compromise an action for a distress : Held, that under these circumstances the question to be left to the jury was }iot what the defendant meant by the words he spoke, but what reasonable men, hearing the words, would understand by them. Semble, also, that if all the persons present when the words were spoken had known that the words did not impute felony, that would have been an answer to the action. (Hankinson v. Bilby, 2 Car. & Kir. 440 ; 1,6 M. & W. 442.) The mere fact that the defendant charged the plaintiff with theft, in regard lo an article of property which had been either loaned or sold to the plaintiff, but which sale or loan was not known to those in whose presence he made the charge, will not be a ground of showing either that the act § 136.] CONSTRUCTION OF LANGUAGE. 1 85 To charge A. with the murder of B., although B. was alive at the time, would be actionable ; but semble not so if those to whom the publication was made knew that B. was alive/ So, semble, one tenant in common of chattels cannot be guilty of larceny of the chattels held in common ; and therefore to charge one of several tenants in common with larceny of a chattel held in common, would be actionable, unless those to whom the publication was made knew of the tenancy in common.^ For " if, at the time the words are uttered, there are cir- cumstances (known to the hearers) which clearly show the words are not used in the sense of imputing a felony, then the charge falls to the ground and no action will lie." ' " Words uttered must be construed in the sense which hearers of common and reasonable understanding would ascribe to them, even though particular individuals better informed on the matter alluded to might form a different judgment on the subject." "♦ § 136. In the case of all oral, and of some written charged was impossible, or that the charge was not seriously made. (Smith v. Miles, 15 Vt. 245.) ' So held, Sergart v. Carter, i Dev. & Bat. 8; Snag v. Gee, 4 Coke, 16. " You have killed A.; you have poisoned him," are slanderous words, though, at the time they were spoken, A. was living in a distant part of the country. (Eckhart v. Wil- son, 10 S. & R. 44; and see Tenney v. Clement, 10 N. H. 52 ; Carter v. Andrews, 16 Pick. I ; Stone v. Clark, 21 Pick. [38 Mass.] 51 ; Stallings v. Newman, 26 Ala. 300.) " Wilt thou murder my sister as thou didst thy wife?" actionable, although the 'wife was alive. (Brown v. Charlton, Keb. 359, pi. 52.) " Thy father says thou hast murdered thy husband." Judgment was arrested after verdict for plaintiff for these words, because it was not alleged that the husband was dead at the time the words were spoken. (Boldroe v. Porter, Yelv. 20.) Words actionable per se are not so when spoken of a transaction not amounting to the crime charged, if known to the hearers to be so spoken. (Parmer v. Anderson, 33 Ala. 78 ; Hankinson v. Bilby, 2 Car. & K. 440 ; Carmichael v. Schiel, 21 Ind. 66 ; Perry v. Man, i R. I. 263 ; Ken- nedy V. Gifford, 19 Wend. 296 ; Williams v. Stott, i Cr. & M. 675 ; 3 Tyrw. 688 ; Brite v. Gill, 2 Monr. 65 ; and see post, note to § 160.) ** Carter v. Andrews, 16 Pick, i ; Stone v. Clark, 21 Pick. (38 Mass.) 51 ; and see note i, p. 184, ante. ^ Parke, B., Ileming v. Power, 10 M. & W. 569. * Hankinson v. Bilby, 16 M. & W. 445 ; and see note to ^ 140, post. l86 CONSTRUCTION OF LANGUAGE. [cH. VII. publications, it may be possible to prove whether or not the hearer or reader was acquainted with such extraneous circumstances, but in the majority of cases it would be impossible to make such proof. Some circumstances are of such general notoriety that every person is presumed to be acquainted with them, and then all language must be construed in reference to them,' With circumstances of less general notoriety, the knowledge of the hearer or reader is in every case a question of proof, and the bur- den of making such proof rests upon him who claims that the hearer or reader possessed such knowledge. § 137. The construction to be put upon any lan- guage spoken or written must be that which is consistent with the whole of the speech or writing. Thus the lan- guage of any part of a writing is to be construed with reference to the entire writing, and the language of any part of an oral discourse is to be construed with reference to the entire discourse. Hence words which, standing alone, would be actionable, may not be actionable when taken in connection with their context.^ ' "It is the duty of the jury to construe plain words and clear allusions to mat- ters of universal notoriety, according to their obvious meaning and as everybody else who reads must understand them. But the defendant may give evidence to show they were used on the occasion in question in a different or qualified sense. If no such evidence is given, the natural interpretation of the words and the obvious meaning to eveiy man's understanding must prevail. (Lord Mansfield, Rex v. Home, 2 Cowper, 672.) * "You are a soldier ; I saw you in your red coat doing your duty ; your word is not to be taken." These words, spoken of an upholsterer, held actionable, it being known to be a common practice for tradesmen to protect themselves from arrest by their creditors by a counterfeit listing. (Arne v. Johnson, 10 Mod. iii.) In an action for libel for writing to a client of the plaintiff, a barrister, "He would give her ill counsel and stir up a suit ; he would milk her ptDse and fill his own large pockets," per Vaughan, C. J., " Saying he will milk your purse, taken annun- ciatively, signifies no more than milking a bull ; the phrase is not come ta an idiom." (King V. Lake, 2 Ventr. 18.) Mr. Parry, in his edition of Lord Campbell's Libel Act, says (p. 13) it is doubtful if this decision could now be supported, and we agree with him. (See note 2, page 180, ante.) ' The sense is to be gathered from the whole of the words or writing. (2 .Starkie on Slander, 85 ; Cooke v. Hughes, i R. & M. 112 ; Carter v. Andrews, 16 Pick, i ; Cook V. Tribune Association, 5 Blatch. C. C. 352.) The construction which it behoves ggl38, I39-] CONSTRUCTION OF LANGUAGE. 187 § 138. Formerly the condition in life of the person spoken of materially affected the construction, and words concernino- -great men of the -realm" were held actiona- ble, which^'would not have been so held when published coiicernincr private persons. Language defaming these "great men" was called scandalum magnahtm. In the United States no such distinction of persons is known.' How far the condition in life of the parties will affect the damages will hereafter be considered (§§ 391, 417)- §139. The sense in which the publisher meant the language cannot be material. The dicta which appar- entty sanction such a rule will, on a comparison with their context, be found in reality to be, not what did the defendant mean, but what properly may he be taken to have meant. How might the language be understood by those to whom it was published. It cannot, therefore, be correct to say that the language is to be construed in the sense in which the publisher intended it to be under- stood. ''When a party has made a charge that clearly imputes a crime, he cannot afterwards be permitted to say, I did not intend what my words legally imply."' a court of justice to put on a publication is to be derived as well from the expressions used as from the whole scope and apparent object of the writer. (Cooper v. Greely, I Denio, 358 ; citing Spencer v. Southwick, ii Johns. 592 ; Fidler v. Delavan, 20 Wend 57 ) "God forbid that a mans words should, by strict and grammatical construction, be taken by parcels, against the manifest intent of the party upon con- sideration of all the words which import the true cause and occasion which manifest the true sense of them." (4 Co. 18.) A defendant should be tried by all that he has published in the same pamphlet or paper (Morehead v. Jones, 2 B. Mon. 210.) Brittridge brought an action for the words " Mr. Brittridge is a perjured old knave, and that is to be proved by a stake pariin- the lands of Martin and Wright." The judgment was arrested, on the ground that the latter words explained the former as not meaning judicial perjury. -Co. 18 ; Yelv. 10, 34 ; Mo. 666.) • For information as to scandalum magnatum, the reader is referred to Starkie on Slander ; Holt on Libel. Secundum gradum dignitatis, &c., was the rule of the Ro- man law', and is the rule in Scotland and France. (Borthwick on Libel, 176, I77, «•. Inst. Lib. IV, tit. 4; Code Criminel, tit. iii, art. i ; Black. Com. bk. Ill, c. vn, s. 5 ; Selwyn's N. P. 1155 ; Barrington on Penal Statutes ; 3 Reeve's Hist, of the Common Law. See note to § 1S2.) = Woodworth, J., McKinly v. Rob, 20 Johns. 351- Words having naturally none 1 88 CONSTRUCTION OF LANGUAGE. [CH. VII. § 140. Where the language is ambiguous, in that case the manner in which it was or might be understood by those to whom it was published is material, and will con- trol in determining the meaning ; but where the language is unambiguotis, it is to be construed in its ordinary sense, and without reference to how those to whom it was published understood it, or what was intended by the publisher.' of their own, carry that signification to the hearer that he is used to put upon them, whatever be the sense of him that uses them. (Locke, Conduct of the Understand- ing, § 35-) The question in an action for words is not what the party using them considered their meaning by any secret reservation in his own mind, but what he meant to have understood as their meaning by the party to whom he uttered them. (Read v. Am- bridge, 6 C. & P. 308.) In words, as in all other symbols of the mind, it is the mind itself which is to be sought for. (St. Augustine.) " The effect of the words used, and not the meaning of the party in uttering them, is the test of their being actionable or not." That is, first ascertain tlie meaning of the words themselves, and then give them the effect any reasonable bystander would affix to them. (Hankinson v. Bilby, 16 M. & W. 442.) " The secret intent of the pub- lisher is immaterial." (/i/.) The injuiy caused by slander depends on the effect of the words on the hearers. (Hawks v. Patton, 18 Ga. 52.) The speaker "is accountable for the import of the words as they will naturally be understood by the hearer." (Borland v. Patterson, 23 Wend. 424 ; citing Harri- son V. Thornborough, 10 Mod. ig6; Gidney v. Blake, 11 Johns. 54.) "It was not enough that the defendant could point the slander in his own mind, so long as it ap- pears to have been pointless in the minds of the hearers." (Id) It is the sense in which the hearers understood the words on which the jury are to pronounce. (Dem- arest v. Haring, 6 Cow. 76 ; Kennedy v. Gifford, ig Wend. 296 ; Hogan v. Hendy, 18 Md. 177.) A defendant in an action for slander is accountable for the import of his words, as they will naturally be understood by the hearer, and explanatory cir- cumstances known to both speaker and hearer are to be taken into account as a part of the words. (De Moss v. Haycock, 15 Iowa [7 With.] 149.) " Language shall be construed and understood in the sense in which the writer or speaker intended it." (Commonwealth 7/. Kneeland, 20 Pick. 206; Kerr v. Force, 3Cranch Cir. Ct. 8.) If the words impute a crime, it is not necessary to allege an intentioji to charge such crime. (Galloway v. Courtney, 10 Rich. Law, 414.) " Nor by the term mea7iingzx& we to understand what the defendant intended to express ; for he may have designedly written that which, in its literal sense, should be imperfect. But we are to understand the meaning which he intended others should believe him to have — the sense in which he designed his production should be received by others." (George on Libel, 36 ; see post, § 281.) ' A man is to some extent responsible for the hearing of the bystanders, if he uses language which imputes crime, with an explanation ; if the bystanders did not hear the explanation, he is liable to an action. (Maybee v. Fisk, 42 Barb. 336 ; see, how- ever, apparently cotitm, Shecut v. M'Dowell, 3 Brevard, 38.) But the understanding § 141.] CONSTRUCTION OF LANGUAGE. 189 § 141. The construction of language as actionable or not actionable, is sometimes determined by the knowl- edge or imputed knowledge of the person spoken of. Thus, the words, "that thief. A., hath stolen my goods and delivered them to Bacon," held not to give any right of action to Bacon, it not being alleged he knew the ffoods were stolen/ So of the words, he received of the bystanders cannot be shown to make words actionable /^rj-^, which, as alleged in the declaration, are not actionable per se. (Smith v. Gafford, 33 Ala. 168.) Where ^ the charge was actionable /^r j^, and unambiguous, and there were no circumstances to qualify it, it was held error to charge the jury that unless the words were under- stood by the hearers in a slanderous sense, they must find for the defendant. (Jarni- gan V. Fleming, 43 Miss. 711.) " Taken by itself, and without more, the understanding of a person who hears an expression is not the legal mode by which it is to be explained. If words are uttered or printed, the ordinary sense of those words is to be taken to be the meaning of the speaker." (Daines v. Hartley, 3 Ex. 200.) " There can be no doubt that words may be explained by bystanders to import something very different from their obvious meaning. The bystanders may perceive that what is uttered is uttered in an ironical sense, and therefore that it may mean directly the reverse of what it professes to mean'. Something may have previously passed which gives a peculiar character and meaning to some expression ; and some word which ordinarily is used in one sense may, from something that has gone before, be restricted and confined to a particular sense, or may mean something different from that which it ordinarily and usually does mean." {Id^ ^^ " We are to understand words in the same sense as the hearers understood them. (Button V. Hey ward, 8 Mod. 24.) " In a common sense, according to the vulgar in- tendment of the bystanders." (Somers v. House, Holt, 39; ante, § 135 ; Hankinson V. Bilby, 16 M. & W. 442.) Language imputing an indictable offense is actionable or not, According to the sense in which it may fairly be understood by those who hear or read it, and who are not acquainted with the matter to which it relates, or which may render it a privileged communication. (M) To accept the understanding of the words by the hearer or reader as their true meaning " would be to make the defendant's liability depend, not on his own malicious intent and purpose, in using the language, which might be quite innocent and free from blame, but upon the mis- conception^'or morbid imagination of the person in whose hearing they were spoken." (Heard on Libel, § 268, citing Snell v. Snow, 13 Mete. 278; Van Vechten v. Hop- kins, 5 Johns. 211 ; Gibson v. Williams, 4 Wend. 320; Allensworth v. Coleman, 5 Dana, 315.) The judgment of the witness is not to be substituted for the judgment of the jury. (Heard on Libel, § 269 ; Cresinger v. Reed, 25 Mich. 450.) " Words are to be taken in that sense that is most natural and obvious, and in which those to whom they are spoken will be sure to understand them. (Heard on Libel, § 163.) Where a certain meaning is alleged, plaintiff may call a witness to show that he (witness) so understood the words. (De Armond v. Armstrong, 37 Ind. 35.) 1 Bacon's Case, Dal. 41, pi. 21. 13 igO CONSTRUCTION OF LANGUAGE. [CH. VII. goods that were stolen, and will be hanged for them/ You have passed counterfeit money." So, to allege that one got his sister with child, or had carnal intercourse with his daughter, does not impute incest without an allegation that the plaintiff was guilty of the act charged with a knowledge of the relationship.^ Without an alle- gation of knowledge, it was held not actionable to charge, " He hath gotten much wealth by trading with pirates," + or, " He was confederate with Campion the Jesuit," ^ or, "He poisoned Smith," ^ or, "He is a maintainer of thieves,"^ or, " He offered, or was about to offer for sale unwholesome meal."^ § 142. It is customary to concede (i) that formerly courts construed language in mitiori sensu, and (2) that the practice of so construing language has been aban- doned.^ These propositions require some qualification. ' Ratliff z^. Long, Palm. 67. In Miller v. Miller, 8 Johns. 74: Held, that where the offense charged was concealing stolen goods, it was not necessary to allege that the plaintiff knew the goods were stolen. (See notes to § 173, post.) ^ Pike V. Van Wormer, 6 How. Pr. R. 171; Church v. Bridgman, 6 Miss. igo. 3 Lumpkins v. Justice, i Smith (Ind.) 322 ; Griggs v. Vickroy, 12 Ind. 549. * Crook V. Averin, Godb. 252 ; 2 Bulst. 216. ' Brown v. Lisle, Cro. Eliz. 251. * Jacob V. Miles, Vin. Abr. Act. for Words, E, b ; and see March v. Davidson^ 9 Paige, 580, 3.nApost, § 144, subd. .r. ' Ball V. Bridges, Cro. Eliz. 746 ; and see Tabbe v. Matthew, i Bulst. 109. * Hemmenway v. Woods, i Pick. (iS Mass.) 524. See note i, page 1S5, ante. * Where words are ambiguous, so as they may be expounded in good or ill part,, no action lies, for they shall be expounded in the best sense. (Anon. Cro. Eliz. 672.) "The law strains not to hurt but to heal." (Coote v. Gilbert, Hob. 77, pi. 100) ; and "where words are indifferent, and are equally liable to two distinct interpreta- tions, we ought to consti-ue them in mitiori sensu, but we will never make any expo- sition against the plain, natural import of the words." (Pratt, Ch. J., Button v. Heyward, 8 Mod. 24 ; and see Naber v. Miecock, Skin. 183.) Words are not to. be taken in a milder sense than they have in common acceptation. (Beers v. Strongs Kirby, 12.) The maxim for expounding words in mitiori sensu has for a great while been exploded. (Fortescue, J., Button v. Heywood, 8 Mod. 24 ; Roberts v. Cam- den, 9 East, 93; and see Wakley v. Healey, 7 Com. B. 591 ; Ogden v. Riley, 2 Green, 186 ; Duncan v. Brown, 15 B. Monr. 186 ; Fallenstein v. Boothe, 13 Mo. R. 427 ; Demarest v. Haring, 6 Cow. 76 ; Pike v. Van Wormer, 6 How. Pr. R. 99 ; 142.] CONSTRUCTION. OF LANGUAGE. 191 Alleged defamatory matter comes before the court for construction in the form of a pleading, and then of course is governed by the rules for construing pleadings, and among these rules that by which the pleader is supposed to have stated his case in the manner most favorable to Backus V. Richardson, 5 Johns. 476.) " The earlier English judges discouraged the action of slander by all sorts of evasions." (Gibson, J., Bash v. Sommer, 20 Penn. St. R. 159 ; and see Harrison v. Thornborough, 10 Mod. ig6.) "We will not give more favor unto actions on the case for words than of necessity we ought to do, where the words are not apparently scandalous, these actions being now too frequent." (Coke, Ch. J., Crofts v. Brown, 3 Bulst. 167.) In Alsop v. Alsop (5 Hurl. & N. 534), the court says actions for slander are not to be encouraged ; and see Bennett V. Williamson, 4 Sandf. 67, where it is said : " The law of libel ought to be consid- ered and is in its spirit a benevolent and salutary provision for the peace and security of the community, but it cannot redress every injury sustained by a breach of morals or of good manners. We may not approve of the taste of publications such as is set forth in the declaration in this case. We may lament the existence of a disposition to make private character too much the subject of comment and abuse, without having it in our power through the instrumentality of the law to arrest the evil ; " and in Dollaway v. Turrill, 26 Wend. 397, the action for libel is designated as a sordid action. "Although slanders are to be suppressed, yet the judges had resolved that actions for scandals should not be maintained by any strained construc- tion." (Wray, Ch. J., Stanhope v. Blith, 4 Co. 15.) Ch. J. Holt said that, when- ever words tended to take away a man's reputation, he would encourage actions for them, because so doing would contribute to the preservation of the peace ; and he repeated a story attributed to Justice Twisden, of a man who, failing in his action for words, said, if he thought he should not have recovered damages he would have cut the defendant's throat. (Baker v. Pierce, 2 Ld. Raym. 959 ; 6 Mod. 24 ; Cas, temp. Holt, 654 ; and see ante, note, p. 102.) One who couches his slander in am- biguous terms, in the hope of blasting the reputation of his neighbor without incur- ring any legal responsibility, cannot claim an indulgent construction of his words. (Gibson v. Williams, 4 Wend. 320.) Starkie (i Starkie on Libel, 47) refers to the following cases as specimens of the doctrine of benignior sensiif : "Thou art as arrant a thief as any in England, for thou hast broke up J. S.'s chest, and taken away £^0." After verdict for plaintiff, held not actionable. (Foster v. Browning, Cro. Jac. 6SS.) "Thou art a lewd fellow; thou didst set upon me by the highway, and take my purse from me, and I will be sworn to it." After judgment for the plaintiff, held on error not actionable. (Hol- land V. Stoner, Cro. Jac. 315.) " Thou art a thievish rogue, and hast stolen bars of iron out of other men's windows ;" not actionable. (Powell v. Hutchins, Cro. Jac. 204.)' "J. D. was robbed of ;,^40, and Alice Bagg [plaintiff] and T. S. had it, and for that they will be hanged ; " after judgment for plaintiff, held not actionable. (King V. Bagg, Cro. Jac. 331.) And so of " Thou dost lead a life in manner of a rogue ; I doubt not but to see thee hanged for striking Mr. Sydman's man, who was mur- dered." (Barrens v. Ball, Cro. Jac. 331.) 192 CONSTRUCTION OF LANGUAGE. [CH. VII. himself.' We are of the opinion that an examination of the decisions will disclose the fact that what are regarded as constructions in mitiori scnsu are usually a more or less rigorous application of this rule of pleading. The words admitting of two constructions, the one actionable and the other not actionable, wiiere the pleader failed to point the language to the actionable meaning, courts have refused to put the actionable meaning on the lan- guage, supposing that, if the language had such a mean- ing, the pleader would have pointed it out. The rule requiring certainty in the allegations of a pleading was, no doubt, carried to excess," but we take it to have always been and to be still the rule, that where a party makes a charge of having been injured by language, it is for him to show that the words have a defamatory sense,^ ' The law will not assume in favor of a party anything he has not averred (Cruger V. Hudson River R. R. Co. 12 N. Y. 201), or that the pleading is* less strong than the facts warrant. {Id.) A pleading is to be construed in its popular sense (Wood- bury V. Sackrider, 2 Abb. Pr. R. 405 ; Munn v. Morewood, 5 Sandf. 557); accord- ing to what it says, and not what the pleader intended. (Gould v. Glass, 19 Barb. 185; and see Allen v. Patterson, 7 N. Y. 480; Sheddon v. Patrick, i Macq. H. L. Gas. 535.) The court will not, in support of a pleading, infer a criminal intention where the pleader has not ventured directly to aver its existence. (Bartholomew v. Bentley, 15 Ohio, 670.) " It is a clear principle that the language of an indictment [a pleading] must be construed by the rules of pleading, and not by the common in- terpretation on ordinary language, for nothing indeed differs more widely in con- struction than the same matter when viewed by the rules of pleading and when con- strued by the language of ordinary life." (Per Erie, J., in Reg. v. Thompson, 16 Q. B. 832, 846; 4 Eng. Law & Eq. R. 287, 292 ; and see Blickenstaff v. Perrin, 27 Ind. 527 ; Lukehart v. Byerley, 53 Penn. St. Rep. 418.) '^ Action for the words, Home dit : Sir Th. Holt hath taken a cleaver and stricken his cook upon the head, so that one side of the head fell upon one shoulder and the other upon the other shoulder, et [the declaration] ne averr que-le cook fuit mort, et pur ceo fuit adjudge nemy bort. For it not being averred that the cook was killed, the striking was a trespass only. (Holt v. Astrigg, Cro. Jac. 184; Rolle R. 286.) In England, such a striking is by statute (7 Wm. IV & i Vict. ch. 85, § 4) a felony. 3 Tindal, Ch. J., Edsall v. Russell, 5 Scott's N. R. 801 ; 2 Dowl. N. S. 614; 4 M. & G. 1090 ; 12 Law Jour. Rep. N. S. C. P. 4 ; note 2, p. 178, ante. " Either the words themselves must be such as can only be understood in a criminal sense, or it must be shown by a colloquium in the introductory part that they have that mean- ing, otherwise they are not actionable." (Holt v. Scholefield, 6 T. R. 691.) Words to be actionable should be unequivocally so. (Harrison v. Stratton, 4Esp. Cas. 218.) Where there is no colloquium, the plaintiff must be held to allege that the words § 142.] CONSTRUCTION OF LANGUAGE. 193 and that, where the language is equally as susceptible of a harmless as of an injurious meaning, it is the duty of the pleader, and not of the court, to point out the in- jurious meaning ; and if he fails to do this, the court will not put upon the language the injurious meaning. Although there may be no rule by which courts are required to put on ambiguous language its non-action- able sense, certainly there is no rule by which courts are required to put on ambiguous language the actionable sense. The rule is that the natural meaning is to be taken,^ and if in that view the language will bear a non- actionable meaning equally as well as an actionable one, courts will adopt the non-actionable construction. Where the meaning is doubtful, the pleader may, by an innuendo, point the" language to the sense in which he wishes it to be understood. Where the alleged defama- tory matter was that A., a prostitute, was under the patronage or protection of the plaintiff, there was no innuendo pointing an injurious meaning, yet the lan- guage was held actionable.^ "Where words in their were used in their natural and ordinary signification (Edgerly z^. Swairi, 32 N. Hamp. 478) • and they will be so construed, and not in mitiori sensu. (Chaddock v. Briggs, 13 Mass 24S ; Bloss v. Tobey, 2 Pick. 320.) Where the words have two meanings, one of them harmless and the other injurious, the innuendo may properly pomt out the injurious meaning. (Joralemon v. Pomeroy, 2 N. J. 271; Griffith v. Lewis, 8 Q. B. 841 ; 7 Law Times, 177; Gosling v. Morgan, 32 Penn. St. Rep. 273.) 1 Words " are not to be taken in the more lenient or the more severe sense, but in the sense which fairly belongs to them, and which they were intended to convey." (Ld EUenborough, Rex v. Lambert, 2 Camp. N. P. Gas. 398.) See note 3, P- I77, ante The court will not, m support of a pleading, infer a criminal mtention, when the pleader has not ventured directly to aver its existence. (Bartholomew v. Bent- ley, 15 Ohio, 670.) ■2 More V. Bennett, 48 N. Y. 472 ; rev'g s. c. 33 "How. Pr. R. 180 ; 48 Barb. 229 ; and see Dolloway v. Turrill, 26 Wend. 383, where the court, in the absence of an innuendo, construed in a harmless sense a charge of using money for shavmg pur- poses (Stone V. Cooper, 2 Denio, 292.) In Edsall v. Russell (5 Scott N. R. 801 ; 2 Dowl. N. S. 614 ; 4 Man. & G. 1090), the words were : " He made up the medi- cines wrong through jealousy, because I would not allow him to use his own judg- ment " There being no innuendo that the defendant meant to impute that the medicines occasioned any injury, the court refused to put that meaning upon them, 194 CONSTRUCTION OF LANGUAGE. [CH. VII. ordinary sense do not bear a defamatory construction, there must be a distinct averment that the words bear a meaning that is actionable." ' Courts will not strain to find an innocent meaning, nor will the court put a forced construction on words having an innocent meaning. The words, " He was guilty of most abominable conversa- tion and exposure of his person," held not actionable /^r sc.^ Where the allegation was that defendant, speaking of certain spoons belonging to her, said : " I dare say she [the plaintiff] has some of them in her pocket." There being no innuendo, held not actionable, as plaintiff might have the spoons in her pocket innocently. ^ Pub- lishing of plaintiff that he figured prominently in the squatter riots, not explained by innuendo, held not ac- tionable, as it did not follow plaintiff was wrongly or unlawfully engaged in said riots.'* Where the w^ords were of persons in trade, " Look out sharp to get your bills met by them," the court held that p7'ima facie the words were harmless.^ And the word " blackleg " un- explained was held not actionable.^ So, there being no proper colloquium to point the meaning of the words, " he was taken to court on a charg-e for foro-erv," were held not actionable, as they might mean plaintiff was and held the words not actionable. And see Forbes v. King, i Dowl. 672 ; Kelly V. Partington, 5 B. & Adol. 645. The head note to Wesley v. Bennett (5 Abb. Pr. R. 498), that, " where the words alleged in a complaint for libel are fairly susceptible of a construction which would render them actionable, the complaint will be sus- tained upon demurrer, although the words may also be interpreted in a way which would render them innocent," although it may be a correct statement of the law, seems not to be justified by the opinion of the court. The decision was that the alleged libel might " fairly be held to mean " that plaintiff was engaged in the con- spiracy mentioned in the charge. ' Blackburn, J., Cox v. Cooper, 9 Law Times, N. S. 329. - Torbitt V. Clare, 9 Irish Law Rep. 89 ; Ward v. Reynolds, i Dav. & Mer. 507. ^ Martinere v. Mackay, 2 Law Reporter, 120 (London, 1822). •* Clarke v. Fitch, 41 Cal. 473. ^ Daines v. Hartley, 3 Ex. 200. • Barnett v. Allen, i Fos. & F. 125 : 3 Hurl. & N. 376. § 1 43-] CONSTRUCTION OF LANGUAGE. 1 95 taken to court as a witness/ Among other reasons which might be urged for requiring the plaintiff to allege in what sense he considers and desires the court and jury to consider the language was used is this, that, unless he does so, he deprives the defendant of the right to traverse the sense which the plaintiff imputes to the language of wiiich he complains. An instance of the advantage to a defendant of this right is the case where the plaintiff alleged that defendant had applied to him the term •" black sheep," and that the defendant was accustomed to use that term to mean a person of bad reputation, and that the term was so used on the occasion of which the plaintiff complained. The defendant pleaded that he had not so used the term on the occasion in question, •and upon demurrer the plea was sustained/ § 143. Where language may be taken in a double sense, the court, after a verdict, will usually construe it in that sense which will support the verdict.^ If the lan- ' Harrison v. King, 7 Taunt. 431 ; affi'g 4 Price, 46. ' McGregor v. Gregory, 11 M. & W. 287 ; affi'g Clarkson v. Lawson, 6 Bing. 587. 3 In Burgess v. Boucher (8 Mod. 240), it is said that, after verdict, the court will ost. ' Harding v. Brooks, 5 Pick. 244. See § i-J3, posf. 204 CONSTRUCTION OF LANGUAGE. [CH. VII. to a charge that the plaintiff is in bad repute in that county.' p. La7^ce7iy. — The words, A man that would do that would steal, do not impute a larceny ; ^ but to say one was whipped for stealing hogs, does.^ You will steal, imputes a charge of larceny."* The words "he is mighty smart after night," and "put him in the dark, and he would get it all," spoken with reference to a dispute which existed between plaintiff and de- fendant, relative to the division of a certain tan- yard ; held not to impute the crime of larceny, and not actionable.5 I have reason to suppose that many of the flowers of which I have been robbed are grow- ing on your premises, held to amount to a charge of larceny.^ The words, "my table-cloths are gone, and you know where they are gone. If you will bring them back, I will say nothing about it. My husband has gone down town to get a warrant to search your house and imprison you," impute a crime.^ q. Liar. — The words, " this is not the first time the idea of falsehood and B. [plaintiff] have been associated in the minds of many honest men," import that B. is a liar.^ r. Made away zvith. — A charge of making away with does not amount to a charge of larceny.^ ' Cooper V. Greely, i Denio, 347. ' Stees V. Kemble, 27 Penn. 112 ; and see Stolen, p. 10'], post. ^ Holly V, Burgess, g Ala. 728. ■* Cornelius v. Van Slyck, 21 Wend. 70. ° Kirksey v. Fike, 29 Ala. 206. * Williams v. Gardiner, i M. & W. 245 ; and see note 2, p. 185, ante. ' Hess V. Jockley, 25 Iowa, g. " Brooks V. Bemiss, 8 Johns. 455. ' The words, " Uncle Daniel must settle for some of my logs he has made away with," do not of themselves amount to a charge of larceny. (Brown v. Brown, 2 Shep. 317; Connick v. Wilson, 2 Kerr (New Brun.) 496. A charge of carrying § 1 44-] CONSTRUCTION OF LANGUAGE. 205 s. Murder. — To say one is guilty of the death of another imports a charge of murder. The word gtiilty im- plies a malicious intent, and can be applied only to something which is universally allowed to be a crime. But to say one was the cause of another's death does not import a crime, for a physician may be the cause of a man's death, and very innocently.' t. Packing.— The charge of "packing a jury" imports the corrupt selection of a jury.^ u. Perjury. — To publish a direct and positive contradic- tion of what a witness, at a certain trial, had sworn that A. had said ; held, not to amount to a charge of perjury.3 Nor do the words, Thou wert detected of perjury, imply being guilty of perjury. '^ Words charging a grand juror with having " forsworn him- self by neglecting or refusing to present an offense within his knowledge," do not amount to a charge of perjury, or any indictable offense.^ To say one is forsworn, was indicted for it, and compounded for it. imputes perjury; for the alleged compounding is equivalent to a confession of the indictment being true.^ And to say. Thou art forsworn, and I will away corn does not impute felony, but trespass. (Stitzell v. Reynolds, 59 Penn. 4S8.) Go home and steal more potatoes from Peggy's field, held actionable, as the potatoes might have been severed from the soil, and the words implied a prior stealing. (Hunter v. Hunter, 25 Up. Can. Q. B. 145.) 1 Peake v. Oldham, Cowp. 275 ; Miller v. Buckdon, 2 Bulst. 10. See g 168, post. ■ Mix V. Woodward, 12 Conn. 262. ' Steele v. Southwick, 9 Johns. 214 ; see post, note to § 171 ; Perselly v. Bacon, 20 Miss. 330; Kern v. Towsley, 51 Barb. 385 ; Spooner v. Keeler, 51 N. Y. 527. * Vin. Abr. Actions for Words, P, a, 21. The words, " Thou didst take a false oath before Justice Scawen," may mean not a justice of the peace named Scawen, but one named Justice Scawen. (Garnett v. Derry, 3 Lev. 166 ; note to § i-jy,post; and Call v. Foresman, 5 Watts, 331, in § 321, post.) ^ McAnnally v. Williams, 3 Sneed, 26. ' Gilberd v. Rodd, 3 Bulst. 304. 14 206 CONSTRUCTION OF LANGUAGE. [CH. VII. set thee on the pillory, or I will have his ears cropt, imply perjury.', Loss of life was occasioned by the collision of two steamboats. An inquest was after- wards held, and a person named Granger, who was on board of one of the steamboats at the time of the accident, gave his evidence. The defendant, in giving an account of the accident and inquest, stated : " Had requisite means been employed, the lives of the two children might have been saved, in spite of the story of Mr. Granger, who swore through thick and thin, and who, although asleep at the moment of the' accident, had yet sufficient time to dress himself and assist his wife : " held, that the language did not charge Granger with perjury.^ The following was published by A. : " Charge 4. Refusing to correct G. C. in his state- ment as a witness before Esq. B., when I believe he, J. C., knew his, G. C.'s, statement was not true." Held, that this writing, when shown by proper averments to have been applied by A. to the testi- mony of G. C., on the trial of a cause, imputed perjury to G. C, and was actionable.^ V. Pilfering. — The term pilfering imports a crime.^ w. Plundered. — The term plundered does not import a felonious taking.^ X. Poisoji. — Saying of a surgeon that he did poison the wound of his patient, may mean that he poisoned * Williams v. Bickerton, Het. 63 ; Vin. Abr. Actions for Words, F, a, 11. "I could prove J. S. perjured, if I would," implies that J. S. committed perjury. (Id.) '^ Reg. V. Marshall, 2 Jur. 254 ; and see note to § 137, a/t/e. 3 Coombs V. Rose, 8 Blackf. 155. * Beckett v. Sterrett, 4 Blackf. 499 ; contra, see Carter v. Andrews, 16 Pick. i. * Carter v. Andrews, 16 Pick. i. § I44-] CONSTRUCTION OF LANGUAGE. 20/ the wound to cure it. But if it be charged that he poisoned the wound to get money, that is different' y. Prostitute. — She is a bad girl, and unworthy to be em- ployed, will not support an innuendo, a prostitute.* " If I am not misinformed, she is a prostitute," is the same as saying she is a prostitute. ^ 2. Robbed — Robbing. — The prima facie meaning of rob- bed is to impute a crime, an unlawful taking ; * but the words. You have robbed me of one shilling tan money, amount only to a charge of embezzlement^ Robbing is a word of an uncertain signification.^ The words, " He robbed the treasury and bought a farm with it," were held not to impute felony.^ a. a. Skavifig Ptcrposcs. — Shaving, as applied to promis- sory notes, means buying notes at a discount, be- yond the debt and interest, which is neither dishon- orable nor discreditable.^ b. b. Steal — Stolen. — The natural and obvious meaning of steal is a felonious taking or larceny.' The term ' Vin. Abr. Actions for Words, R, a, lo, 40. ' Snell V. Snow, 13 Mete. 278. * Treat v. Browning, 4 Conn. 408. * Tomlinson v. Brittlebank, i Nev. & M. 455 ; 4 B. & Adol. 630 ; Slowman v. Dutton, 10 Bing. 402 ; Jones v. Chapman, 5 Blackf. 88 ; Heard on Libel, § 38. Robbed held actionable /^r j-^. (Hutts v. Hutts, 51 Ind. 581.) * Day V. Robinson, I Ad. & El. 554. The words alleged in the declaration were, " You have robbed me of u. tan money ;" innuendo, that he had wrongfully taken to his own use part of money received as the plaintiff's servant, for and on account of the plaintiff, on the sale of tan, and for which he was accountable ; held, that the facts being stated in the innuendo without any previous introductory allega- tion, and showing embezzlement rather than robbery, the count was bad. ' Palmer v. Edwards, Rep. of Cas. of Prac. in C. P. 160. '' Allen V. Hillman, 12 Pick. loi. The words, " You did rob the town of St. Cloud ; you are a public robber," are not actionable, for the crime of robbery can- not be committed against a town. (McCarty v. Barrett, 12 Minn. 494.) See § 170, post. * Stone V. Cooper, 2 Denio, 293. * Bunnell v. Fiske, 11 Mete. 551. See § \-]0, post. 208 CONSTRUCTION OF LANGUAGE. [CH. VII. Stolen imputes a larceny.' Stealing unexplained, ex vi termini, imports felony.' Stealing and feloniously stealing are not the same ; in common parlance, stealing does not always import felony.^ If the ar- ticle alleged to have been stolen is of the kind of which felony can be committed, the term steal or stolen imputes a larceny, otherwise if the article alleged to have been stolen could not be the subject of a felony/ Thus it has been held not actionable to say. You stole my wood,^ or my apples ;' or a load of hop-poles ; ^ or a tree ; ' or a dog ; ' or a bee-tree ; '" or wild bees ;" or a sable caught in a trap ; " or marl, earth, or furze ; '^ because felony cannot be commit- ted of such things. A charge of liaving stolen boards,'* or " my boxwood," '^ held to impute a lar- ceny ; and a charge of stealing the property of A., deceased, imports a larceny from the personal repre- sentatives of A.'^ He will steal, and I can prove it. ' Burbank v. Horn, 39 Maine (4 Heath), 233 ; Coleman v. Playsted, 36 Barb. 26; Taylor v. Short, 40 Ind. 506; contra, Bunnell v. Fiske, li Mete. 551; St. Martin v. Desnoyer, i Min. 156. ' Powell, J., Baker !<. Pierce, 6 Mod. 23. » Holt, Ch. J., Baker v. Pierce, 6 Mod. 23. *■ Cock V. Weatherby, 5 Sme. & M. 333. See note, p. 184, ante. ' Meaning standing timber. (Robbins v. Hildredon, Cro. Jac. 65 ; Idol v. Jones, 2 Dev. 162 ; Heard on Libel, 37, note 3 ; contra, Phillips v. Barber, 7 Wend. 489.) • Clark V. Gilbert, Hob. 331. ' Guilderslew v. Ward, Cro. Eliz. 225 ; Dexter v. Taber, 12 Johns. 239. • Cook V. Gilbert, Hob. 77. See Bryan v. Wikes, Cro. Car. 572. • Findlay v. Bear, 8 Serg. & R. 571. Charging larceny of a dog is actionable in Kansas. (Harrington v. Miles, 11 Kan. 4S0; and see 2 Alb. Law Jour. loi, and note, 15 Amer. Rep. 356.) '" Cock V. Weatherby, 5 Sme. & M. 333. " Wallis V. Mease, 3 Binn. 546; Gillet v. Mason, 7 Johns. 16. " Norton v. Ladd, 5 N. Hamp. 203. 13 Ogden V. Riley, 2 Green, 186 ; Clark v. Gilbert, Hob. 331. 1* Burbank v. Horn, 39 Maine (4 Heath), 233. " After verdict for plaintiff. (Baker v. Pierce, 6 Mod. 23.) " Bash V. Sommer, 20 Penn. St. R. 159. :§ I44-] CONSTRUCTION OF LANGUAGE. 209 is equiv'alent to saying he had stolen ;' and to allege, I will venture anything he has stolen the book, is equivalent to a charge of stealing the book.'' To say, You are as great a rogue as your master, who stole rugs, is not a charge of stealing, without an averment that the master had committed felony.^ It is not actionable to charge acts which amount only to a trespass, and although the defendant may use the word steal or stole, yet, if the context shows the word was intended to refer to such acts, and was so understood, no action lies." If you do not give me up the bills I shall give you in charge for steal- ing them, innuendo, meaning that plaintiff had stolen the bills, held to amount to a charge of stealing and to disclose a cause of action. ^ " I have seen women steal yarn before." These words not action- able with an innuendo, but without a colloquium.^ r. c. Suffer. — To stffer, held to import suffer death, as where the defendant said, " I will make you suffer for a witch," it was held to mean suffer death for a witch.' ' Cornelius v. Van Slyck, 21 Wend. 70. ' Nye V. Otis, 8 Mass. 122. * Upton V. Pinfold, Comyn's R. 268. You a^e as bad as thy wife when she stole my cushion, not actionable. (Ratcliff v. Michael, Cro. Jac. 331.) The words, " I ^expect Murphy will have plenty of bacon to sell, as he has killed some of my hogs," • after verdict for plaintiff, were held to amount to a charge of hog-stealing. (Murphy V. Antley, 2 Boston Monthly Law Rep. N. S. 520.) R. S. was attainted of felony, and defendant said. You [plaintiff] have done as ill and worse; it will not cost you as much to be quit as it cost him. Court doubted if actionable. (Smith's Case, Cro. Eliz. 31.) ^ McCaleb v. Smith, 22 Iowa, 242; Win§ v. Wing, Supm. Ct. Maine, April, 1876. There the charge was plaintiff stole windows from C. D.'s house, and held not action- able as imputing only a trespass. (And see Hall v. Adkins, 59 Mo. 144 ; Pasley v. Kemp, 22 Mo. 409.) A charge of malicious trespass would be actionable. Wilcox ■.V. Edwards, 5 Blackf. 183. " Poulton V. Rintel, i Vict. Law Times, 44. • Hart V. Coy, 40 Ind. 553. ' Stephens v. Corben, 3 Lev. 394. 2IO CONSTRUCTION OF LANGUAGE. [cil. VII. d. d. Taken.— y^ords which charge the taking of the per- sonal property of another, may be slanderous or not, according to circumstances/ Ordinarily, taken is not equivalent to stolen ; ^ but where the words were, I have lost a calf-skin, * "^ Bornman must have taken it, they were held to impute a larceny.^ e, e. Thief.— To call one thief is not actionable, unless it is intended to impute to him a felony/ Unexplained it will be construed in a felonious sense,^ but subject to explanation by the context/ To say of one, he 1 Watson V. Nicholas, 6 Humph. 174. " Robertson v. Lea, i Stew. 141 ; Coleman v. Playsted, 36 Barb. 26. The words, Thou hast picked my pocket, and taken away ten shillings, held not action- able, although the charge of picking the pocket without more would be. (Mumfries Case, cited Godb. 287.) Taking away implies a lawful taking. (Foster v. Brown- ing, Cro. Jac. 688, pi. 2 ; Wilks' Case, Vin. Abr. Act. for W^ords, R, a, 3 ; see Dot- tarer v. Bushey, 16 Penn. St. R. 204.) - Bornman v. Boyer, 3 Binn. 515. He is a thief, for he hath stolen corn from Mr.. Kay, held actionable (Smith v. Ward, Cro. Jac. 673), for corn threshed, and not in the sheaf, shall be intended ; but if the words had been hath taken away, instead of hath stolen, no action would lie— a lawful taking would be intended. (Foster v. Browning, Cro. Jac. 688, pi. 2.) Thou art as arrant a thief as any in England, for thou hast broken up J.'s chest, and taken away £40; not actionable. {Id.; see Luke- hart V. Byerly, 53 Penn. 418.) Thou art a thief, for thou takest my beasts by reason of an execution, and I will hang thee. (Wilks* Case, Vin. Abr. Act. for Words, R, a, 3.) * Brite v. Gill, 2 T. B. Monroe (Ky.) 66; Quinn v. O'Gara, 2 E. D. Smith, 388. * Tenfold v. W^estcote, 2 New Rep. 335 ; Curtis v. Curtis, 10 Bing. 477 ; Fisher V. Rotereau, 2 McCord, 189; Dudley v. Robinson, 2 Ired. 141 ; McNamara v. Shan- non, 8 Bush (Ky.) 557. The words. He is a thief and a liar, and I can prove it, im- port a charge of larceny, and are actionable. (Robinson v. Keyser, 2 Foster [N. Hamp.] 323.) •Thompson v. Bernard, i Camp. 48 ; Cristie v. Cowell, Peake's Cas. 4 ; Mc- Kee V. Ingalls, 4 Scam. 30; Ogden v. Riley, 2 Green, 186; Vin. Abr. Act. for Words, G, a, i, 2. To say, " Thou art as very a thief as any in Warwick gaol," no thief being then in the gaol, would not be actionable, but if a thief is in the gaol at the time, the words would be actionable. (Fenner, J., i Bulst. 40.) "He is a swindler and thief, and stole $8,000 from me," these words, explained to mean only that by false entries plaintiff had defrauded defendant, were held not actionable. (Stone V. Katz, 38 Wis. 136.) And so of the words, " You have cheated and robbed orphan children out of fourteen hundred dollars." (Filber v. Dantermann, 28 Wis. 134.) The charge, " A. B. is stealing my com," is, of itself, actionable, but when at the same time defendant communicated the facts of the taking, which he bona fide § I44-] CONSTRUCTION OF LANGUAGE. 211 is a thieving person,' or "he gets his living by thieving,"" is the same as saying he is a thief. /. /. Threatening Letters.— K charge of sending threat- ening letters, and that the plaintiff had been indicted therefor, must mean that they were unlawful threat- ening letters.3 g. g. Unnatural Offense.— To allege that one has been with a beast,'^ was seen ravishing a cow, amounts to a charge of buggery ;5 but an allegation that one was seen ''afouloi a cow," or " with a heifer,"^ does not amount to a charge of buggery. To say of one, his character is infamous, he would be a disgrace to any society ; I will publish his infamy ; delicacy for- bids me bringing a direct charge, but it was a male child who complained to me ; held to impute unnat- ural practices without an innuendo.^ h. h. Whore.— To assert that " A. is a whore, or else she would never ride with B.," is to assert that A. is a whore.^ believed to be larcenous, held not actionable ; as defendant explained the circum- stance there was no malice. (Hall v. Adkins, 59 Mo. 144 ; and see Pasley v. Kemp, 22 Mo. 407.) Accompanied by a statement of qualifying circumstances, the words, " The fact is, he is a villain and a thundering thief," were held not actionable. (Fellowes v. Hunter, 18 Up. Can. Q. B. Rep. 382.) ' Alley V. Neely, 5 Blackf. 200. ^ Rutherford v. Moore, i Cranch. C. C. 388. 3 Harvey v. French, i Cr. & M. i ; affi'd 2 Moo. & Sc. 591. " Threatening letters. The grand jury have returned a true bill against a gentleman named French," con- strued to mean that the grand jury had found a true bill against French for sending threatening letters, but that the words would not bear the meaning that French had sent threatening letters to extort money. {Id.) * Woolcott V. Goodrich, 5 Cow. 714. 5 Harper v. Delph, 3 Ind. 225. « Id.; Johnson v. Hedge, 6 Up. Can. Q. B. Rep. N, S. 337- ' Woolnoth V. Meadows, 5 East, 463. See note 3, on p. 178, ante. 8 True V. Plumley, 36 Me. 466 ; Bassell v. Elmore, 65 Barb. 627. " E. P. was one week in L. in a whore-house," implies a charge of whoredom. (Blickenstaff v. Perrin, 27 Ind. 527.) Bitch does not import whoredom, and no innuendo can give it that meaning. (Schurick v. KoUman, 50 Ind. 336.) 212 CONSTRUCTION OF LANGUAGE. [CH. VII. i. 2. — To say, there is strong reason to believe,' or there is a rumor/ or if report be true,^ a certain fact occurred, is equivalent to an allegation that such fact occurred ; and so to say, I would venture anything,-* or pul)lic opinion says so, and what public opinion says I be- lieve to be true,5 or I have every reason to believe,'^ is equivalent to a positive allegation. But the words " Sparkham did steal or else Godwin is foresworn," was held too indirect a charge to give a right of ac- tion, ^ so of the allegation, she had a child, and either she or some one else made away with it.^ j.j. — To say of one, he is thought no more of than a horse-thief and a counterfeiter, is to call him a horse-thief and a counterfeiter ; '' and when it is said of one, he has committed an act for which he could be transported, it must be understood he has been guilty of a crime punishable by transportation. '° k. k. — To charge, he has broken open my letters in the post-ofhce, do not import an unlawful breaking open." /. /. — Thou canst not read a declaration, construed to mean from ignorance, not blindness." ' Turner v. Merr}'weather, 12 Law Times, 474; 7 C. B. 251. ' Kelly V. Dillon, 5 Porter (Ind.) 426. ^ Smith V. Stewart, 5 Barr, 372; Johnson v. Brown, 57 Barb. 1 18. * Nye V. Otis, 8 Mass. 122. '" Gage V. Shelton, 3 Rich. 242 ; and see note 6, p. 199, ante. * Logan V. Steele, i Bibb, 593 ; and see note 7, p. igg, ante. "" I Starkie on Slander, 70. ■^ Carth. 55. The words thy brother was whipped for stealing sheep, or burned in the hand or shoulder, held too uncertain to warrant an action, as one could not be burned in the shoulder for stealing sheep. (Stirley v. Hill, Cro. Car. 283.) ' Nelson v. Musgrave, 10 Mo. 648. "• Curtis V. Curtis, 4 Moo. & Sc. 337 ; 10 Bing. 477. " McCuen v. Ludlum, 2 Harrison (17 N. J. Law), 12 ; Hillhouse v. Peck, 2 Stew. & Por. (6 Ala. O. S.) 395. '* Powell V. Jones, i Lev. 297. § 145-] CONSTRUCTION OF LANGUAGE. 213 ;;^, ;^;._The words " we again assert the cases formerly put by us on record ; we assert them against [the plaintiff] ; we again assert they are such as no gentleman or honest man would resort to." Con- strued not to be a mere denial of some assertion made by plaintiff, but as an accusation against the plaintiff.' ;2, ;;._" He was an United Irishman, and got the money of the United Irishmen into his own hands and ran away with it," imputes a breach of trust, not a felony, and not actionable.^ § 145. What allegations are divisible. One rule whereby to test whether a charge is divisible or not, is to inquire if the measure of damages would be different for the whole or for a part ; and if it would, then the charge is divisible, and part may be justified.^ Another rule would be to inquire if a part of the charge would sustain an action. Where the charge was that the plaintiff, a proctor, had been suspended three times for extortion, held divisible, and that the defendant might justify as to one suspension.^ Where the alleged de- famatory matter professed to give a report on an election petition, and commented on a person, bail for one of the petitioners, and stated " he is hired for the occasion," held divisible.^ The charge was acts of barbarity to a horse, and "beating out one of his eyes, and that plaintiff had ordered the person having charge of the horse not to let any one see it," held divisible.' So of 1 Hughes V. Rees, 4 M. & W. 204. 2 McClurg V. Ross, 5 Binn. 218. Charge of embezzling goods not actionable. (Caldwell v. Abbey, Hardin [Ky.] 529 ; and see Hawn v. Smith, 4 B. Monr. 385- 3 Clarkson v. Lawson, 6 Bing. 587; Cooper 2;. Lawson, i Perr. & D. 15 ; Churchill V. Hunt, 2 B. & Aid. 685. 4 Clarkson v. Lawson, 6 Bing. 587. 5 Cooper V. Lawson, i Perr. & D. 15. • Weaver v. Lloyd, 2 B. & Cr. 678 ; 4 D. & R. 230. 214 CONSTRUCTION OF LANGUAGE. [cH. VII. the words : Ware, hawk, you must take care of your- selves there, mind what you are about ; ' and where the charge was that plaintiff had killed his adversary in a duel, and that a portion of the night preceding the duel was spent in practicing with a pistol, held to be divisible allegations ; ' and where the charge was that the plaintiff had, by furious driving, caused the death of a person, and then commented, in terms held to be actionable, on the fact of the plaintiff, on the same evening, attending a public ball, held that the charges were divisible ; ^ so of the words, she is a forsworn whore and a perjured whore,'' and thou are a roguish knave and a thief.^ Where the charge was that plaintiff was in prison and unable to pay his rent, and a mere man of straw, held not divisible, but one charge of insolv- ency.^ Allegations of time, and space, and number, are divisible.^ ' Orpwood V. Barkes, 4 Bing. 261 ; s. C. sub nam. Orpwood v. Parkes, I2 Moore, 492. '^ Helsham v. Blackwood, 11 C. B. m ; 5 Eng. Law & Eq. R. 409. 3 Churchill v. Hunt, 2 B. & Aid. 685; I Chit. 4S0. ^ Wales V. Norton, Hard. 7. ' Bailey v. Maynard, 2 Bulst. 134. • Eaton V. Johns, i Dowl. Pr. C. N. S. 602. Where the charge was that defend- ant had been obliged to get rid of plaintiff, " in consequence of frauds and de- linquency," and that "these Sutherlands have been trading on my capital for the last twelve years to their own benefit, and they will do the same with your property, or that of any other they can get hold of," held these charges were to be taken in conjunction, and could not be justified by showing the plaintiff guilty of revenue frauds. (Sutherland v. McDonald, 3 Menzies Rep. N. S. 6.) The libel was : "Defendant complained to plaintiff that a ditch on plaintiff's premises was injurious to public health and a nuisance ; that plaintiff, after fencing with defendant, refused to do anything; that proceedings taken to remove the nui- sance were defeated by technical objections on plaintiff's part; that the ditch was a nuisance which had occasioned fever in the neighborhood, of which plaintiff had notice ; and that the nuisance continued unabated." Plea justifying as true parts of the libel. Jury found some allegations of plea true and some not true — held the issue was indivisible. (Biddulph v. Chamberlayne, 17 Q. B. 351.) ' Monkman v. Shepherdson, 3 Perr. & D. 182; 11 Ad. & El. 411 ; so said in argument. Page v. Hatchett, 6 Law Times, 218 ; and as to divisible allegations, see S 145.] CONSTRUCTION OF LANGUAGE. 215 r. 1 Pr r N S 76q; II M. & W. 289; Nelson v. McGregor v. Gregory, 2 Dowl. Fr. «. in . ^5. / y , ^ ^_^.^_ Patrick, 3 C. B. m ; Mountney -^^^"^^^.^f ,\trb. 523', VeLey .. Pike, 3 .right, 5 B. & Ad. 395 ; --^^^^^7^^^; ^^ ^3 !^'o Connell l. Mansfield, 9 I-h C. & P. 512 ; Berry v. Adamson, 2 C. & ^- S^S ' ^^^^^j ^ j^ g^^ . Law Rep. I79 ; Edwards .. Bell, ^^^^^^ ' ^™„^Tb, Addons for Words. F, i:^ S;^:S:^S::r;:^M M.1^. S4S ; capers . Slacken, a C. &P. 474; see §212,/^.?/. CHAPTER VIII. WHAT LANGUAGE IS ACTIONABLE. Language must be stick as does or does 7iot occasion dam- age — What is meant by actionable pe7' se, and action- able by reason of special damage — What la7igiiage concerni7ig a person as stick, pnblisked orally, is actionable per se — Wkat language concerning a per- S071 as stick, ptiblisked i7i writi7ig, is actio7iable per se — Wkat la7igiiage C07icer7ii7ig 07ie i7i ati acqtiired capacity, is actio7iable per se — Wkat la7igiiage co7i- cerni7ig a perso7i is actio7iable by reaso7i of special damage — Wkat la7igtiage C07icer7ting tke affairs of a perso7i, his property, or kis title tkereto, is actio7i- able. § 146. All language concerning a person or his af- fairs, which, as a necessary or natural and proximate consequence, occasions him pecuniary loss, \'i pri77ia facie actionable (§§ 57, 59, 70). Language must be either (i) such as necessarily, in fact, or by a presumption of evidence, occasions damage to him whom or whose affairs it is concerning ; or, (2), such as does not neces- sarily, or as a necessary consequence, but does by a natural and proximate consequence, occasion damage to him whom or whose affairs it is concerning ; or, (3), such as neither as a necessary nor as a natural and proximate consequence occasions damage to him whom or whose affairs it is concerning.' The loss which ensues ^ In the jurisprudence of Louisiana, a distinction is not made between words actionable and words not actionable, as the basis of damages in a suit for slander, where no special damages are proved. (Feray v. Foote, I2 La. Ann. 894.) §§ 147-150.] ACTIONABLE LANGUAGE. 21 7 as a ''necessary consequence" is termed damage; the loss which ensues as a ''natural a7id proximate con- sequence]' is termed "special damaged One and the same set of words may both necessarily occasion damage, and also occasion damage as a natural consequence. § 147. Language of the first of these classes is com- monly termed libelous per se, or actionable per se, be- cause its publication confers 3. prima facie right of action, and is prima facie a wrong without any evidence of damage other than that which is implied or presumed from the fact of publication. Probably language of this class might more correctly be termed injurious per se, or language which imports damage. § 148. The publication of language of the second of these classes does not, per se, confer a prima facie right of action, and is not, per se, a prima facie wrong. It confers a right of action only in those cases in which, as a natural and proximate consequence of the publication, loss (special damage) has in fact ensued to him whom or whose affairs the language was concerning. § 149. The publication of language of the third of these classes cannot in any event amount to a wrong, and cannot in any event confer a right of action. § 150. We attempted to explain, in Chapter IV, that pecuniary loss, actual or presumed, is the gist of the action for slander or libel, and we stated (pp. 106, 107) the basis, as we suppose, of the distinction between words actionable per se and words only actionable by reason of special damage, to consist solely of a rule of evidence ; the rule by which courts decide what words ' ' Words mean written or spoken words. (Minter v. Stewart, 2 How. [Miss.] 183.) And an action for written slander may be an action for " slanderous words," within the Vermont judiciary act. (Parsons v. Young, 2 Vt. 434; but see § 53, ante.) And in Hall v. Warner (T. 24 Geo. IH), Tidd, 861, held that an action for libel was not within the statute 21 Jac. I, ch. 16, relating to actions for " slanderous words." 2l8 WHAT ORAL LANGUAGE [CH. VIH. shall be considered by their pubHcation necessarily to occasion pecuniary loss or damage. The courts, while exercising this power, have failed to promulgate a formula which can be applied with any degree of cer- tainty, to distinguish the cases in which damage is necessarily implied, from the cases in which no such implication occurs, and in which, to give a right of action, special damage must be proved. § 151. As the injurious, or presumed injurious effect of language depends upon whether (i) the language concerns a person or a thing, (2) or the person as such or in some acquired capacity, or (3), in certain cases, whether the language be published orally or by writing, it will be necessary to consider the topic of actionable language under the following heads : I. — What language concerning a person, as such, pub- lished orally, is actionable per se. II. — What language concerning a person, as such, published in writing, is actionable /^r se. III. — What language concerning one in an acquired capacity or special character, as in a business, profession, or office, or as partner, or as heir-at-law, is actionable per se. IV. — What language is actionable by reason of spe- cial damage. V. — What language concerning things, as the affairs of a person, his property, or his title thereto, is action- able. § 152. What language concerning a person, as such, published orally, is actionable per se. Altho.ugh it has been said that " The law of England defines with much greater distinctness than is usually found in other codes, the limits of the civil action for oral slander in the ab- § 1 53-] ^-'^ ACTIONABLE. 2I9 sence of special damage," ' it is nevertheless true that " There is not perhaps so much uncertainty in the law upon any subject as when words shall be in themselves actionable."^ " The line of demarcation seems never to have been satisfactorily defined," ^ and is "more satisfac- torily determined by an accurate application of the prin- ciples upon which actions on the case for words depend, than by a reference to adjudged cases, especially those in the more ancient authors." ■* The diversity of opinion as to what words should be treated as imputing damage, or actionable />er se, arose from a wavering in the minds of the judges between two opposite inconveniences. The fear of encouraging a spirit of vexatious litigation, by affording too great a facility for this species of action, was contrasted with the mischief resulting to the public peace from refusing legal redress ; and according as the former "or latter of these considerations preponderated, so was the rule of decision rigid or relaxed.^ § 153. Several of the States provide by statute what words shall be actionable; thus, in Mississippi, Virginia, and Georgia, it is enacted that all words which, from their usual construction and common acceptation, are consid- ered as insults, and lead to violence and breach of the peace, shall be actionable.^ In Tennessee, imputing ' Prelim. Discourse to Starkie on Slander, XXX (30), noie v; see note to § 57, ante. In Scotland, any words that produce " uneasiness of mind " are said to be ac- tionable. (Borthwick on Libel, 1S4, no(e.) But words merely " uncivil " are not actionable. In Iceland, to say of a gentleman, he did menial labor, is punishable. (Blackwood's Magazine, Feb'y, 1869.) Mere words of obloquy, not written, are not actionable. (Johnson v. Brown, 4 Cranch. C. C. 235.) "^ Spencer, J., Brooker v. Coffin, 5 Johns. 192. ' Borthwick on Libel, 5. Lord Holt said it was not worth while to be learned on the subject. (Baker v. Pierce, 6 Mod. 24.) ^ I Comyn's Dig. 273, tio/e, 4th edit. ^ I Starkie on Slander, 12. * It is not necessary, to support an action under these statutes, that the words should have been spoken in the presence of the plaintiff. (Scott v. Peebles, 2 Smedes & Marsh. 546.) 220 WHAT ORAL LANGUAGE [CH. Vlll. orally or in writing, adultery or fornication, or calling one coward or poltroon for not fighting a duel, or other- wise insinuating such a charge, is actionable." In Arkansas and Illinois, to impute adultery, fornication, or false swearing, or having sworn [or affirmed in Illinois] falsely in common acceptation, whether in a judicial pro- ceeding or not, is actionable. In Missouri, to impute adultery or fornication is actionable.^ In Indiana, to impute to a female incest, fornication, adultery, or whore- dom, or to impute to any one incest, or an infamous crime against nature with man or beast, is actionable. In Florida, a cJiargc by any citizen of that State against another, imputing incest, fornication, or adultery, is ac- tionable. In North Carolina, any words written or spoken of a female which amount to a charge of incon- tinency, are actionable ; and, in Maryland, all words tending to the injury of the reputation for chastity of a feme sole, are actionable.^ In Michigan, willfully to insult or indecently to annoy any female, with any ob- scene or indecent word or act, is a misdemeanor ; and, in New York,"* "An action may be maintained by a female, whether married or single, to recover damages for words hereafter spoken, imputing unchastity to her, and it shall ' Coward held actionable at common law. (Hill v. Wallace, I Menzies Rep. N. S. 347). But held not actionable to say of plaintiff, the head of a commando (or burgher force), that he was by no means exculpated from the suspicion, at least, of having forced to a disgraceful retreat. (Ryneveld v. Bain, 3 Menzies Rep. N. S. II.) "^ Steiber v. Wensel, 19 Mo. 513. ^ See in note, p. 80, ante, and note to § i']2, post. * Laws N. Y. 1871, ch. 219, took effect March 29th, 1871 ; and see a similar law in New Jersey, Pamphlet Laws, 1S67, p. 959. The Roman civil law gave a woman her action for uttering obscene words in her presence. (See supposed reason of this law, Disney's Ancient Laws against Immorality, &c., tit. i, ch. i.) Where a mar- ried woman fails in an action for slander or libel, she is not liable to imprisonment on an execution against her person for the costs. The costs can be collected only out of her separate estate. (Maloy v. Dagnal, i Sup. Ct. Rep. [T. & C], Adden- da, 10 ; § 267, post.) §§ 153^' ^54-] i^ ACTIONABLE. 22 1 not be necessary to allege or prove special damages in order to maintain such action. In such actions, a married woman may sue alone, and any recovery therein shall be her sole and separate property." § i53<^. In the absence of any statutory provision on the subject, all language concerning a person in his indi- vidual capacity merely, when published orally, is action- able per se, which, I. Charges an indictable offense involving moral tur- pitude ; or, II. Charges the being afflicted with certain diseases. § 154. In New York, oral language is actionable per se, when it imputes a charge which, if true, will sub- ject the party charged to an indictment for a crime in- volving moral turpitude, or subject him to an infamous punishment. This was the rule laid down by Justice Spencer, in Brooker v. Coffin, ' and as to which Justice Bronson said, that, although it was not entirely satis- factory to his mind, he felt bound to follow if It was proposed by counsel to modify the rule as stated above, by altering or into and, hut the court refused assent to the suggestion,^ and the rule, as laid down in Brooker v. Coffin, has been followed in numerous cases in New York and other States.-* In reference to the above rule ' 5 Johns. 188. "^ Young V. Miller, 3 Hill, 22. ^ Widrig V. Oyer, 14 Johns. 124. * Wright V. Paige, 36 Barb. 438; affi'd 3 Trans. App. 134 ; Quinn v. O'Gara, 2 E. D. Smith, 388; Martin v. Stillwell, 13 Johns. 275; Burtch v. Nickerson, 17 Johns. 219; Van Ness v. Hamilton, 19 Johns. 367 ; Gibbs v. Dewey, 5 Cow. 503 ; Demarest V. Haring, 6 Cow. 88 ; Crawford v. Wilson, 4 Barb. 504 ; Alexander v. Alexander, 9 Wend. 141 ; Hoag v. Hatch, 23 Conn. 590; Redway v. Gray, 31 Vt. 292; Andres V. Koppenheafer, 3 Serg. & R. 255 ; Todd v. Rough, 10 Serg. & R. 18; McCuen v. Ludlum, 2 Harrison (N. J.) 12; Johnson v. Shields, i Dutcher, 118; Giddins v. Mirk, 4 Geo. 360 ; Burton v. Burton, 3 Iowa, 316 ; Gage v. Shelton, 3 Rich. 242 ; Kinney v. Hosea, 3 Harr. 77 ; Coburn v. Harwood, Minor, 93 ; Perdue v. Burnett, 15 222 WHAT ORAL LANGUAGE [CH. VIIL it has been remarked that, "when the courts say the words are actionable if they subject the party to indict- ment and infamous punishment, provided they are true, we clearly understand. what is the extent of the rule ;" but when they add " or subject the party to an indict- ment for an offense involving moral turpitude, we are are left in doubt what charges are embraced within the sentence; it lacks precision." ' And again, ''this element of moral turpitude is necessarily adaptive ; for it is itself defined by the state of public morals, and thus far fits the action to be at all times accommodated to the com- mon sense of the community."' Chief Justice Parker refused to adopt the rule as laid down in Brooker v. Coffin, supj^a, and laid down the rule as thus : An ac- cusation is actionable whenever an offense is charged which, if proved, may subject the party to a punishment, though not ignominious, and which brings disgrace upon him. 3 The same judge has also laid down the rule as thus : " Words imputing crime in the party against whom they are spoken, which, if true, would subject him to disgraceful punishment, are actionable without special damages." '^ To render the imputation of a crime action- Minor, 138 ; Hillhouse v. Peck, 2 Stew. & Por. (6 Ala. O. S.) 395 ; Johnston v. Morrow, 9 Porter, 525; Taylor v. Kneeland, I Doug. (Mich.) 67; Beck v. Stitzel, 21 Penn. St. R. 522; Billings v. Wing, 7 Vt. 439 ; The State v. Burroughs, 2 Halst. 426; I Amer. Lead. Cas. 113, 3d ed. ' Daniel, J., Skinner v. White, I Dev. & Bat. 471 ; and see Brady v. Wilson, 4 Hawks, 93 ; Wall v. Hoskins, 5 Ired. 177; Shipp v. McCraw, 3 Murph. 463. ^ Lowrie, J., Beck v. Stitzel, 21 Penn. St. Rep. 522. 3 Miller v. Parish, 8 Pick. 385. 4 Chaddock v. Briggs, 13 Mass. 248 ; and to the like effect, Bloss v. Tobey, 2 Pick. 320. " Words to be actionable must charge an offense subject to corporal or infamous punishment." (Elliott v. Ailsberry, 2 Bibb, 473 ; McGee v. Wilson, Lit. Sel. Cas. 187.) Words are not actionable per se when "they impute no crime ■which could be visited. by infamous punishment." (Buck v. Hersey, 31 Maine, 558 ; Gosling V. Morgan, 32 Penn. St. Rep. [8 Casey], 273.) The charge of a misdemeanor, to be actionable per se, must be one which " implies some heinous offense involving moral turpitude." (Mills v. Wimp, 10 B. Monr. 417; Dottarer v. Bushey, 4 Harris [16 Penn. St.] 204; Stitzel v. Reynolds, 9 P. F. Smith, 488.) An indictment lies '§§ 1 55' 15^-] IS ACTIONABLE. 223 able, there needs not the same certainty in stating the crime as in an indictment for such a crime.' § 155. The following offenses, among others, have been held to involve 7noral turpitude : Keeping a bawdy- house," removing landmarks,^ selling spirituous liquor to a slave,"* paying money to secure election as a justice of the peace,5 opening a letter addressed to another,^ altering the owner's marks on animals,^ soliciting one to commit murder,^ indecent exposure of the person,^ embracery ,'° making a false declaration of a right to vote," and counterfeiting." § 156. In some of the States, it seems that all oral for many acts not involving moral turpitude. (Quinn v. O'Gara, 2 E. D. Smith, 388.) "Words charging an offense involving moral turpitude and indictable, although not subjecting the offender to infamous punishment, are actionable in themselves. (Perdue v. Burnett, Minor, 138.) Any words which, according to their natural import, impute a crime or mis- demeanor, which is punishable in the temporal courts by corporal punishment, are actionable in themselves. (Demarest v. Haring, 6 Cow. 76.) " An action will lie for all words spoken of another, which impute to him the commission of a crime involving moral turpitude, and which is punishable by law." (Heard on Libel, 25.) ' Miller v. Miller, 8 Johns. 74 ; Rundell v. Butler, 7 Barb. 260. * Martin v. Stillwell, 15 Johns, 275; Brayne v. Cooper, 5 M. & W. 249; Wright V. Paige, 36 Barb. 438 ; 3 Trans. App. 134. 3 Young V. Miller, 3 Hill, 24; Todd v. Rough, 10 S. & R. 18 ; Dial v. Holter, 6 Ohio, N. S. 228. * Smith V. Smith, 2 Sneed, 473. ' Hoag V. Hatch, 23 Conn. 585. ' Cheadle v. Buell, 6 Ham. 67 ; contra, McCuen v. Ludlum, 2 Harr. (N. J. Law), 12 ; and see Hillhouse v. Peck, 2 Stew. & Port. (6 Ala. O. S.) 395. ' Perdue v. Burnett, Minor, 138. * Demarest v. Haring, 6 Cow. 76. ' Torbitt V. Clare, 9 Irish Law Rep. 86. ** Gibbs V. Dewey, 5 Cow. 503; see ante, § 144, subd./ " Crawford v. Wilson, 4 Barb. 505. ^^ Howard v. Stephenson, 2 Const. Rep. 2d series, 408 ; Thirman v. Matthews, i Stew. (2 Ala. O. S.) 384. All words imputing a crime are actionable. (Deford v. Miller, 3 Penn. 103.) See Arson, Forgery, Larceny, Perjury, Homicide. 224 WHAT ORAL LANGUAGE [CH. VIII. language which imputes an indictable offense or an offense punishable at law, is actionable per se ; thus it is said : "All that is essential to the maintenance of the action for slander is that the words shall impute the com- mission of a punishable offense." ' To be actionable, the effect of the language must be, "to charge some crime or offense punishable by law;"^ "a charge of crime or some punishable offense ;"3 or "words imputing to another a crime punishable by law ;'" ' or an indictable offense.5 While in other States it is held that words, to be actionable, must impute not only an indictable of- fense, but an indictable offense for which corporal punish- ment may be inflicted as the immediate penalty.^ § 157. Judging from the language of many English dicta, the rule in England would seem to be that all oral language is actionable per se, w^hich imputes a crime or indictable offense. " An action lies for any words which import the charge of a crime for which the party may be indicted." ' " The test is, whether the crime is indict- 1 McKinney, J., Poe v. Grever, 3 Sneed, 666. " Words which impute trespass, assault, batter}', and the like, are not actionable per se, and yet these offenses are punishable by indictment." (Smith v. Smith, 2 Sneed, 478 ; Dudley v. Horn, 21 Ala. 379 ; Billings v. Wing, 7 Vt. 444.) Oral language to be actionable must im- pute something criminal or that would exclude from society. (Colby v. Reynolds, 6- Vt. 489.) ■^ Bunnell v. Fiske, 11 Mete. 552. ^ Edgerley v. Swaine, 32 N. Hamp. 481. < Tenney v. Clement, 10 N. Hamp. 57; Lukehart -■. Byerly, 53 Penn. 418. ^ Kinney v. Hosea, 3 Harring. 77. " Birch V. Benton, 26 Miss. (5 Jones), 153; Billings v. Wing, 7 Vt. 439. ' Mayne v. Digle, Freeman, 46. Words, to be actionable in themselves, must charge some scandalous crime ; they must be such as to impute to the party an offense for which he may be indicted. (Walmsley v. Russell, 6 Mod. 200.) In Smale v. Hammon (i Bulst. 40), it was said where the words spoken do tend to the infamy, discredit or disgrace of the party, they shall be actionable ; but this dictum was said to go too far. (Holt v. Scholefield, 6 T. R. 691.) In Scoble v. Lee (2 Show. 33), it was held not actionable to call one regrator, because regrating, although criminal, was not punishable by loss of life or limb. In ancient books we do not read of an action for words unless the slander concerned life. (Vaughan, Ch. J.» King V. Lake, 2 Vent. 28.) § 157-] IS ACTIONABLE. 225 able or not." ' "Where an offense of a criminal nature is imputed by the slander, for which the party is liable to indictment or punishment by the common or statute law, those words are actionable per seP ^ " It is well known that words are not actionable unless they impute some crime or indictable offense." ^ "The words, to be actionable, must impute a criminal offense ; that is, the words, if true, must be such that the plaintiff would be guilty of a criminal offense."* While other decisions seem to require that an offense must be imputed which would not only subject the party charged to imprison- ment, but to an infamous punishment. To make the words actionable per se, " there must not only be im- prisonment, but an infamous punishment ; " ^ and, there- fore, in that case, it was held that the words, "Thou art one of those that stole my Lord Shaftesbury's deer," were not actionable per se, because, although the offense of deer stealing was punishable by imprisonment, it was not an infamous punishment. " The words [to be ac- tionable] must contain an express imputation of some crime liable to punishment, some capital offense, or other infamous crime or misdemeanor."^ Mr. Starkie says: " Perhaps it may be inferred generally, that to impute any crime or misdemeanor for which corporal punish- ment may be inflicted in a temporal court is actionable, ' Comyn's Dig. Actions for Defamation, F, 20. - 2 Saund. PL & Ev. 898, 2d Eng. ed. 3 Tyndall, Ch. J., Edsall v. Russell, 5 Sc. N. R. 815 ; 2 Dowl. N. S. 648; 4 M. & G. 1099 ; 12 Law Jour. N. S. C. B. 7. * Alderson, B., Heming v. Power, 10 M. & W. 570. ° Holt, Ch. J., Turner v. Ogden, 2 Salk. 696. * De Grey, Ch. J., Onslow v. Home, 3 Wilson, 186. This rule, says Mr. Heard '(Heard on Libel, 16), is universally referred to as the correct rule, and was repeated in Holtz/. Scholefield, 6 T. R. 694, and in Beardsley v. Dibblee, i Kerr, (N. Bruns.) 258, and adopted in Shaffer v. Knitzer, i Binn. 542 ; Andres v. Koppenheafer, 3 Serg. & R. 257 ; Bloom v. Bloom, 5 Id. 392 ; Pelton v. Ward, 3 Gaines, 79 ; Smith V. Smith. 2 Sneed, 478; Johnson v. Shields, i Dutch. 119. 226 WHAT ORAL LANGUAGE [CH. VIII. without proof of special damage. Wiiere the penalty for an offense is merely pecuniary, an action will not lie for charging such offense ; even though in default of pay- ment imprisonment should be prescribed, imprisonment not being the primary and immediate punishment for the offense."' § 158. It has been supposed that the gist of the ac- tion for slander was the peril of prosecution to which a person was exposed by the charge, and therefore that for charging an offense which has been pardoned or atoned for, or which is barred by the statute of limitations, no action can be maintained. Thus it is said, "The ground of the matter being actionable is, that a charge is made which, if it were true, would endanger the plaintiff in point of law."' The better opinion is, that the action of slander " is always for the loss of character, and not the danger of punishment," ^ or the hazard of a criminal prosecution.* " It is a great slander to be once a crim- ' I Starkie on Slander, 43 ; 6 Mod. 104. This view of the law is adopted in Billings V. Wing, 7 Vt. 439; Wagaman v. Byers, 17 Md. 183; and in a note at page go of Metcalf's edition of Yelverton's Reports ; but is questioned i Amer. Lead. Cas. 112, 2d ed., and in Smith v. Smith, 2 Sneed, 478. Saying that plaintiff went to mass was held actionable, because it was by statute an offense punishable by fine and imprisonment. (Sir Lionel Walden v. Mitchell, 2 Vent. 265.) And concealing a felony was held actionable at a time when such an offense was punishable by fine only. (Newlyn v. Fasset, Yelv. 154). But the words thou art a common barrator, it was said would not support an action because the punishment was merely fine and binding to good behavior. (Heake v. Moulton, Yelv. 90.) "^ Parke B., Heming v. Power, 10 M. & W. 569. See Harvey v. Boies, i Penn. (Penrose & Watts) 12 ; Andres v. Koppenheafer, 3 Serg. & R. 258 ; Dalrymple v. Lofton, I McMuIlan, 118. "The grounds of action are to be found in the degra- dation of the party in society, or his liability to criminal animadversion. * * * The party's jeopardy, in a legal point of view, is regarded by the law as the princi- pal ground of action." (i Starkie on Slander, 18.) But criminal liability is not always the peculiar and exclusive ground of action ; instances are to be found of remedy for imputations which could not subject the party to any future penalty. {Id. 19.) ^ Van Ankin v. Westfall, 14 Johns. 233 ; Shipp v. McCraw, 3 Murph. 466. ■• Eastland v. Caldwell, 2 Bibb, 24 ; Smith v. Stewart, 5 Barr, 372 ; Beck v.. Stitzel, 21 Penn. St. R. 524; Poe v^ Grever, 3 Sneed, 664. g 158.] IS ACTIONABLE. 227 inal ; and although a pardon may discharge the punish- ment/ yet the scandal of the offense remains."^ It is in this view that it has been held actionable, subject to jus- tification on the ground of truth, ^ to say of one, " He was a thief and stole my gold;"^ or, " He is a returned convict ;"5 or, " He is a convict and has been in the Ohio penitentiary ;"^ or, " You have been cropped for felony;"^ or, " Thou wast in Launceston gaol for coining, and burnt in the hand for it ; " ^ or, " Robert Carpenter [the plaint- iff] was in Winchester gaol and tried for his life, and would have been hanged had it not been for Leggat, for breaking open the granary of farmer A. and stealing his bacon j""^ or, " He was whipped for stealing hogs;"'° or, " He was put in the roundhouse for stealing ducks at Crowland;"" or, "Thou hast been in gaol for stealing a pan."'^ For the words, "Thouwertin gaol for robbing on the highway," the court was divided if actionable or not ; '^ a charge of committing a statutable offense was held actionable, although intermediate the speaking of ' " In the eye of the law the [pardoned] offender is as innocent as if he had never committed the offense." {£x parte Garland, 4 Wall. 380 ; U. S. v. Paddleford, 9 Wall. 542.) "The pardon makes him a new man, and gives him a new capacity and credit." (2 Hawk. P. C. ch. 57, § 48.) * Boston V. Tatham, Cro. Jac. 622, and see Cuddington v. Williams, Hobart, 81. ^ Baum V. Clause, 5 Hill, 196 ; Van Ankin v. Westfall, 14 Johns. 233 ; and see post. Defenses. ■• Boston V. Tatham, Cro. Jac. 622. ^ Fowler v. Dowdney, 2 Moo. & Rob. 119; and see the reporter's note to this case. " Smith V. Stewart, 5 Barr, 372. ' Wiley V. Campbell, 5 Monr. 396. * Gainford v. Tuke, Cro. Jac. 536. ° Carpenter v. Tarrant, Rep. temp. Hard. 339, cited by Ld. EUenborough, Roberts v. Camden, 9 East, 97. ^^ Holley V. Burgess, 9 Ala. 728. " Beavor v. Hides, 2 Wils. 300. '■^ Showell V. Haman, Cro. Jac. 153. '^ Smale v. Hammon, i Bulst. 40. 228 WHAT ORAL LANGUAGE [CH, VIII. the words and the commencement of the action the stat- ute was repealed.' § 159. Where the offense is charged to have been com'^mitted in a foreign State, it will be actionable if it appear that the offense charged is one by the law of that State punishable by indictment, and involving moral tur- pitude (§ no). Where the offense charged is one pun- ishable by indictment at common law, it will be pre- sumed to be indictable ever)'where ; but if the offense charged be one created by statute or punishable by in- dictment by statute, then, as courts cannot take judicial notice of the statutes of foreign States, to make the charge actionable, the statute relating to the offense charged must be pleaded and proved like any other fact.' Thus it is actionable per se, to charge one with stealing in a foreign State or country ,3 or with murder,^ and an action may be maintained for charging a crime com- mitted in another State, which it would not be actionable ' French v. Creath, Breese (111.) 12. ' Offutt V. Earlywine, 4 Blackf. (Ind.)46o; Linville v. Earlywine, Id. 469; Langdon v. Young, 33 Vt. 136 ; Stout v. Wood, i Id. 71; Barclay v. Thompson, 2 Penn. 148 ; Poe v. Grever, 3 Sneed, 644 ; Sparrow v. Maynard, 8 Jones L. (N. Car.) 195. Burning a barn is an offense by the statutes of Indiana, but not at common law, therefore a charge, " He had to leave Indiana for burning a barn," is not ac- tionable without a colloquium of the law of Indiana. (Bundy v. Hart, 46 Mo. 460.) Thus the stealing of bank notes not being indictable at common law, to charge a theft of bank notes in South Carolina, was held not to be actionable in North Caro- lina, unless it was shown that, by the laws of South Carolina, such stealing was sub- ject to an infamous punishment. (Wall v. Hoskins, 5 Ired. 177.) A. and B. being in North Carolina, A. charged B. with stealing a note from him in Virginia, and it appearing that stealing notes was a larceny in Virginia, the charge was held to be actionable. (Shipp v. McCraw, 3 Murph. 463.) 2 As to say in Canada, Old Smith [plaintiff] is a damned thief, he stole a cow in the States (United States). (Smith v. Collins, 3 Up. Can. Q. B. R. i ; and see Johnson v. Dicken, 25 Mo. (4 Jones), 580 ; Cefret v. Burch, i Blackf. 400.) •* Words charging the commission of murder in Ireland are actionable without proving murder to be an indictable offense in that counlrj-. (Montgomery v. Deeley, 3 Wis. 709.) To charge one with administering poison in a foreign country, with intent to kill, is actionable, semble the court will presume such an offense to be in- dictable. (See Langdon v. Young, 33 Vt. 136.) § l6o.] IS ACTIONABLE. 229 to charge the commission of in the State in which the ac- tion is commenced.' § 160. " No charge upon a plaintiff, however foul, will be actionable without special damage, unless it be of an offense punishable in a temporal court of criminal juris- diction,"^ and therefore held not actionable per se to charge a breach of trust,^ or a malicious trespass,'* or of ' Van Ankin v. Westfall, 14 Johns. 233 ; and see Stout v. Wood, i Blackf. 91. '^ I Starkie on Slander, 21, and he proceeds to establish this proposition by refer- ring to the cases in which it has been decided that to say a man is "forsworn," or has " taken a false oath," is not actionable unless the charge connects it with some judicial proceeding. Without this connection, he says, the charge only imputes a breach of morality, for which no action lies. (See Perjury, post.) Besides the older authorities, there is cited Hopkins v. Beedle, I Cai. 347 ; Stafford v. Green, i Johns. 505 ; Ward v. Clark, 2 Id. 10 ; Watson v. Hampton, 2 Bibb (Ky.) 319; Jacobs v. Fylee, 3 Hill, 572. To these we add Hopwoodz;. Thorn, 8C. B. 293 ; Brite v.'GWl, 2 T. B. Monr. 65 ; Dorsey v. Whipps, 8 Gill, 457 ; Holt v. Scholefield, 6 T. R. 694; Wyant v. Smith, 5 Blackf. 293; Tebbetts v. Coding, 9 Gray (75 Mass.) 254; Ed- gerly v. Swain, 32 N. H. 478 ; Wright v. Lindsay, 20 Ala. 428 ; Barham v. Nether- sall, Yelv. 21 ; and see Heard on Libel, § 28. A charge of having " broken open and read a letter " sent by mail, held not actionable, because the offense, although indictable, is not, morally speaking, a crime. (Hillhouse v. Peck, 2 Stew. & Port. 395 ; and see McCuen v. Ludlum, 2 Harr. [N. J. Law] 12 ; Cheadle v. Buell, 6 Ham. 67 ; post, note to § 178, and ante, p. 222, note 4.) Where the words on their face charge a criminal offense, but are shown by their context or otherwise, not to have that meaning, they are not actionable ; thus the words, they are highwaymen, robbers, and murderers, being shown to relate to a transaction not amounting to a criminal offense, were held not to be actionable. (Van Rensselaer v. Dole, i Johns. Cas. 279; and see § 134 and note to § \-i'],ante. It has been held that a charge by a married woman of having stolen her goods, is not actionable (she having no separate estate), as a married woman could not have goods of her own. (i Rolle Abr. 74 ; 6 Bac. Abr. 238 ; i Starkie on Slander, 77.) But where a married woman said, my turkeys are stolen, Charnell hath stolen them, it was held Charnell might have his action. (Charnell's Case, Cro. Eliz. 279.) And so where a married woman said, thou hast stolen my faggots. (Stamp v. White, Palmer, 358; and see Fowell v. Plunkett, Cro. Car. 52.) By the statutes of Illinois, no child under the age of ten years can be punished for larceny ; but an action may be sustained by such child for slanderous words ac- cusing her of theft. (Stewart v. Howe, 17 111. 71 ; and see Redway v. Gray, 31 Vt. [2 Shaw], 292; Dukes v. Clark, 2 Blackf. [Ind.] 20; Bash v. Somers, 20 Penn. [8 Harris], 159; see notes, pp. 183, 184, and note 10 p. 208, and § 144, subd. bb,ante.) ^ McClurg V. Ross, 5 Binn. 218. * Wilcox V. Edwards. 5 Blackf. 183. 230 WHAT ORAL LANGUAGE [ciL VIII. burning, destroying, and suppressing a will,' or attempt- ing to procure, or causing or procuring a miscarriage,Mjr wudi incest,^ or adultery,^ or crime against nature,' or with cheating,' or "mismarking" cattle,^ or living by impos- ture.^ 8 i6i. A purpose or intent to do an unlawful act, without any act being done, is not punishable criminally, and therefore, within the rule stated in the last preceding section (§ i6o), it is not actionable orally to charge one with a mere intent to commit an offense,' " and this rule seems in all times to have been adhered to with more consistency than is generally observable in decisions re- lating to slander." '° Thus, it has been held not action- able to say of one. Thou hast procured J. S. to come thirty miles to commit perjury against his father, and hast given him ^^lo for his pains; or, tiarris hath procured and suborned one Smith to come thirty miles ' O'Hanlon v. Myers, lo Rich. Law (S. Car.) 128; and see 3 Salk. 327. 2 Not within the exceptions of the statute. (Bissell v. Cornell, 24 Wend. 354 ; Abrams v. Foshee, 3 Clarke, 274; Smith v. Gafford, 31 Ala. 45-) And held not ac- tionable to charge an attempt to commit a robbery. (Russell v. Wilson, 7 B. Mon. 261.) 3 Eure V. Odom, 2 Hawks (N. Car.) 52 ; and as to charge of incest, see Starr v. Gardner, 6 Up. Can. Q. B. Rep. O. S. 512 ; Watts v. Greenlee, 2 Dev. 115 ; Gallwey V. Marshall, 9 Exch. 294; ante, § 141. « Wagaman v. Byers, 17 Md. 1S3 ; Castlebury v. Kelly, 26 Ga. 606 ; see ante, § 144, subd. a, a.ndJ>osL ^ Coburn v. Harwood, Minor, 93 ; Estes v. Carter, 10 Iowa, 400 ; see ante, §§ 144. 153, and post. Where the crime against nature is indictable, to charge the commis- sion of it is actionable. (Goodrich v. Woolcot, 3 Cow. 231 ; 5 Cow. 714.) « Odiorne v. Bacon, 6 Cush. 185 ; Richardson v. Allen, 2 Chit. 657 ; Wierback v. Trone, 2 Watts & Serg. 408. Thou hast cheated me of several pounds, held action- able. (Surman v. Shelletto, 3 Burr. 16S8.) ' Williams v. Karnes, 4 Humph. 9 ; Johnston v. Morrow, 9 Port. (18 Ala. O. S.) 525- « Wilby V. Elston, iS Law Jour. 320, C. P. ; 13 Jur. 706 ; 7 Dowl. & L. 143 ; 8 C. B. 142. ' McKee v. Ingalls, 4 Scam. 30 ; Beaton v. Cordray, Wright, loi ; Harrison v. Stratton, 4 Esp. 218; Wilson v. Tatum, 8 Jones L. (N. Car.) 300. '" I Starkie on Slander, 23. § l62.] IS ACTIONABLE. 23I to commit perjury against his father, "^ '^' "^ and given Smith ^10 for that purpose;' or, Thou wouldst have killed me ;^ or. She would have cut her husband's throat ; ^ or, Thou wouldst have taken my purse from me on the highway ;* or, Thou wouldst have murdered me ;5 or. Sir Harbert Crofts keepeth men to rob me;^ but for the words, He sent his man A. to kill me, the court was divided if actionable or not ; ' and the words, He will lie in wait to rob J. S. within two days, were held ac- tionable.^ So were the words, "You may well spend money at law, for you can coin money out of half-pence and farthings," because the words implied an act, for by a mere power the plaintiff could never be able to spend money at law.^ From the fact that, in England, a mere intent may constitute the crime of treason, a charge of treasonable intention has there been held to be action- able ; thus, for saying, " He is a Jacobite, and for bring- ing in the Prince of Wales and popery to the destroying of our nation," held an action could be maintained.'" § 162. It has been said the cases are uniform on the point that for an imputation of evil inclinatio7is or prin- ciples no action lies, unless it affects the plaintiff in some ' Harris v. Dixon, Cro. Jac. 158 ; Yelv. 72. " Potts' Case, Vin. Abr. Act. for Words, Q, a, 8 ; cited as Dr. Poe's Case, 2 Bulst. 206. 3 Scot V. Hilliar, Lane, 98 ; but it being added, and did attempt it, the latter words were held actionable. * Godb. 202. " Tettal V. Osborne, cited in Storrer v. Audley, Cro. Eliz. 250. He sought to murder me, held actionable, because sought implies more than a mere intent. (Cro. Eliz. 308.) ° Crofts V. Brown, 3 Bulst. 167. ' Bray v. Andrews, Moore, 63 ; Dal. 66. " Sidman v. Mayo, 3 Bulst. 261. ' Home V. Powell, Salk. 697. " Prinn v. Howe, I Bro. Pari. Cas. 64 ; and see Eaton v. Allen, 4 Co. 16. 232 WHAT ORAL LANGUAGE [CH. VIII. particular character, or produces special damage.' But unless by inclinations and principles are meant i^itc^i- tions (§ i6i), or the assertion be limited to oral lan- guage, the dictum seems to be unwarranted. It was held actionable to publish in writing that plaintiff had openly avowed the opinion that government had no more right to provide by law for the support of the worship of the Supreme Being than for the support of the worship of the Devil ;^ or that plaintiff would put his name to any- thing that T. would request him to sign, that would prejudice D.'s character i^ and the words, " He would rob the mail for one hundred dollars," spoken of a postmaster, were held actionable.'* § 163. It is held, in some cases, that words which denote the opinion or the suspicion entertained by the publisher, are not equivalent to a direct charge, and therefore are not actionable ; ^ thus, where the words were, " I have a suspicion that you, B., have robbed my house, and therefore I take you into custody," it was held the judge rightly directed the jury that if they believed the defendant meant to impute only a suspicion of felony, and not an absolute charge of felony, their verdict must be for the defendant.^ The words, " she ought to have been transported," were held not actionable, because they ^ I Starkie on Slander, 24; Harrison v. Stratton, 4 Esp. 2i3. ' Stow V. Converse, 3 Conn. 325. 3 Duncan v. Brown, 15 B. Mon. lS6. * Craig V. Brown, 5 Blackf. 44. * Words which denote opinion or suspicion are not actionable. (Comyn's Dig. Act. for Defam. F, 13 ; cited in Hodgson v. Scarlett, I B. & Aid. 233.) "What is the difference between suspicion and belief ? Suspicion may rest on no grounds, be- lief rests upon some grounds." (Byles, J., Leet v. Hart, Law Rep. 3 C. P. 824.) » Tozer v. Mashford, 4 Eng. L. & Eq. R. 451; 6 Exch. 539 ; 20 Law Jour. Rep. (N. S.) Ex. 224. The words, ' ' I will take him to Bow street [a police court so called] on a charge of forgeiy," held not actionable, as not amounting to a charge of felony. (Harrison v. King, 4 Price, 46; 7 Taunt. 431.) § 163.] IS ACTIONABLE. 233 expressed only the opinion of the speaker.' But the words, He ought to be hanged as much as A., who was in fact hanged, were construed to charge an offense which de- served hanging, and actionable ; = and it was held action- able to say of one, If you had your deserts, you had been hanged before now ; ^ and so of the words, He hath deserved his ears to be nailed to the pillory,* but not actionable to say : Thou deservest to be hanged ; ^ or, Thou shouldst have sat on the pillory if thou hadst thy deserts ; ^ or, Thou has done that for which thou deservest to be hanged.^ But the words, You have done things with the company for which you ought to be hanged, and I will have you hanged before the first of August, were held actionable ; ^ and so of the words, " I know enough he has done to send him to the penitentiary."* It was held not to be actionable to say of one, " He is a great rogue, and deserves to be hanged as well as Gale," who was condemed to be hanged. Because the words show opinion merely, and perhaps the speaker might not think Gale deserved hanging.'" It was held not actionable to say, I will take him to Bow street (a ^ Hancock v. Winter, 7 Taunt. 205. The words, I will transport him for felony, were held actionable. (Tempest v. Chambers, i Stark. Cas. 67.) "^ Read v. Ambridge, 6 Car. & P. 308; and see Davis v. Noak, l Stark. Rep. 377 ; Johnson v. Brown, 57 Barb. 118. ^ Down's Case, Cro. Eliz. 62. * Jenkinson v. Mayne, Cro. Eliz. 384. ° Heake v. Moulton, Yelv. go. * Anon. Moore, 243. ' Fisher v. Atkinson, Vin. Abr. Act. for Words, G, a, 5. ' On the ground that they imputed the commission of a crime punishable by hanging. (Francis v. Roose, 3 M. & W. 191.) " I will have him transported for perjury and forgery," with special damage, held actionable. (Floyd v. Jones, 2 Bar- nard. lOI.) * Johnson v. Shields, i Dutcher, 116. A general charge of having been guilty of crime, without naming the particular crime, seems sufficient. (Curtis v. Curtis, 4 Moo. & S. 337). But held not sufficient to say he had been guilty of conduct unfit for publication. (James v. Brook, 10 Jur. 541.) ^^ Bush V. Smith, 2 Jones, 157. 234 WHAT ORAL LANGUAGE [CH. VIIL police office so called) on a charge of forgery.' It was held actionable for one to say he supposed the plaintiff was guilty of a crime ; ^ or, I tJmik he is a horse stealer.' It seems no more than the expression of an opinion to say, " Two dyers have gone off, and for aught I know, Harrison will be so too within this time twelve month." Yet these words were held to be actionable ;'■ so of the words, " All is not well with Daniel Vivian ; there are many merchants who have lately failed, and I expect no otherwise of Daniel Vivian ;"5 and so of the words, " I am thoroughly convinced you are guilty of the death of D. D."^ But held not actionable to express a sup- position or belief that one went to a certain place for the purpose of persuading another to commit adultery with him.^ § 164. One may charge another with the commission of an offense as well by way of a question as by a direct assertion,^ as " Is H. the man who broke jail ?" ^ " What art thou? a bankrupt;" '° "When will you bring home ' Harrison v. King, 4 Price, 46; 7 Taunt. 431. ' Dickey v. Andros, 32 Vt. 55. ^ Stich V. Wisedom, Cro. Eliz. 348. If a man says he believes another commit- ted a certain offense, his belief, although sincere, is no justification. (Kerr v. Force, 3 Cranch C. C. 8.) * Harrison v. Thornborough, 10 Mod. II. * Vivian's Case, 3 Salk. 326. ® Peake v. Oldham, Cowper, 275 ; 2 W. Black. 960. ' Dickey v. Andrews, 32 Vt. 55 ; and as to a charge of inciting one to commit a crime, see Passie v. Mondford, Cro. Eliz. 747 ; Cockaine v. Witnam, Cro. Eliz. 49 ; Eaton V. Allen, 4 Cow. 16. The dicta and decisions that words denoting opinion are not actionable, must have their origin in the j«//^j^^ distinction between matters of fact and matters of opinion. See this distinction discussed in a case of misrepre- sentation (Haight V. Hoyt, 19 N. Y. 46S), in an essay on the influence of authority in matters of opinion, by George Cornewall Lewis, and in the review of that work (Edinburgh Review, April, 1850); and in Whateley's Logic; Domat's Civil Law, note to § 1962; and see the distinction noticed (Root v. King, 7 Cow. 629; Reg. v. Ardley, Law Rep. i Cro. Cas. Res. 304). ^ Gorham v. Ives, 2 Wend. 534 ; Sawyer v. Eifert, 2 Nev. & M. 511. ' Hotchkiss V. Oliphant, 2 Hill, 510. '" See Jordan v. Lyster, Cro. Eliz. 273. § 165.] IS ACTIONABLE. 235 the nine stolen sheep you stole from I. S. ?"' "Have you brought the /^^o you stole ?"^ "Wilt thou murder my sister as thou didst thy wife ?" ^ "Who stole the bell- ropes ? " '^ Asking as to a forgery, whether the witness did not think it was in G/s handwriting, and asserting that he had shown it to some persons who said it was in G.'s handwriting, would seem to show an intent to im- press a belief of G.'s guilt of the forgery. ^ § 165. In some of the older cases it was held that "adjective words," or "words spoken adjectively," do not confer a right of action. But, as was well said by Lord Coke, " sometimes adjectives will maintain an action, and sometimes not." ^ Thus it was held not actionable to call one " conjuring knave," ^ or " murderous villain," ^ or " pocky whore," ^ or "rebellious knave ;" '° but held ac- tionable to call one a "traitorous knave," " or a "traitor knave." " We conceive the true rule to be, that when the word imputes an act it is actionable, and when it imputes an intention or inclination only, it is not action- able.'3 Thus it has been held not actionable to call one a " thievish knave," or to say to one, " thou has thievishly ' Hunt V. Thimblethorp, Moore, 418. ■^ Mayott V. Gibbons, 2 RoUe R. 166. ^ Brown v. Charlton, Keb. 359, pi. 52. * Jackson v. Adams, 2 Scott, 599 ; 2 Bing. N. C. 402. The words in this case were held not actionable. See in note p. 184, ante. * Gorham v. Ives, 2 Wend. 534. * 4 Coke, 19. ' Killick V. Barns, 2 Biilst. 138. " 2 Ld. Raym. 236. So "murderous quean" held not actionable. (Vin. Abr. Act. for Words, I, a, 4.) * Gulford's Case, 2 Rolle R. 71; and "pocky rascal," see Vin. Abr. Act. for Words, G, ^, 5. " Ward V. Thorne, Cro. Eliz. 171 ; Booth v. Leach, Lev. 90. " Id. '* Selby V. Carryer, 2 Bulst. 210. '^ I Starkie on Slander, 71, and § 162, anie. 236 WHAT ORAL LANGUAGE [cil. \in. taken my money," because the word thievish or thievishly implies an inclination only ; ' but to call one a thieving- rogue was held actionable, because thieving implies an act.^ "Thieving puppy" was held actionable,^ and so were "thievish pirate," -♦ "bankrupt knave," "pocky knave," 5 and "bankrupt skrub." ^ "Bankrupt rof^ue " was held not actionable when spoken of an individual as such ; ^ but those words, when spoken of one in trade (a shoemaker), were held actionable.^ " Bankrupt knave " was said not to be actionable, because the phrase implies only bankrupt-like knave.' And so " Cuckoldy rogue " w^as held actionable.'" A participle, it is said, implies an act done, and therefore held actionable to call one a "murdering rogue,"" or a "buggering rogue,"" or to say he is robbing or ravishing. '^ ' Vin. Abr. Act. for Words, \, a, 4, 11 ; Robins z'. Hildredon, Cro. Jac. 65. '^ Hunt V. Merrychurch, 2 Keb. 440 ; Dorrell v. Grove, Freeni. 279. * Little V. Barlow, 26 Geo. 423; Pierson v. Sliortz, l Morris (Miss.) 136; and see post, § 169. * Vin. Abr. Act. for Words, I, a, 12. ' Inglebath v. Jones, Cro. Eliz. 99 ; but it was doubted in Robinson v. MoIIor (Cro. Eliz. 843), if " bankrupt knave" was actionable, and the phrase was held not actionable when spoken of a tanner. (York z'. Cecil, Browl. 16.) The words " base, beggarly, bankrupt knave," were held actionable in Still v. Finch (Cro. Car. 381) ; and so of the words " bribing knave," spoken of an attorney. (Vardley ?'. Ellis, Hob. 8.) ^ Wilson V. Crow, Sty. 75. ' Loyd V. Pearse, Cro. Jac. 424. * Langley v. Colson, Godb. 151. * Selby V. Carrier, Cro. Jac. 345 ; but said otherwise. Booth v. Leach, Lev. 90. See Vin. Abr. Act. for Words, I, a, 3. '* The words were spoken in London, and held actionable as implying his wife was a whore. (l Str, 471.) " Green v. Lincoln, Cro. Car. 31S. '■^ Collier v. Bourn, 2 Keb. 377; or "perjured knave" (Staverton v. Relfe, Yelv. 160); or "perjured rogue" (Orton v. Fuller, Lev. 65) ; but where the words were : " Thou art a perjured knave, that is to be proved by a stake that parts the lands of J. S. and J. D.," it was doubted if they were actionable. (Brecheley v. Atkins, Yelv. 10.) '3 Sybthorp's Case, i Rolle Abr. 176 ; i Starkie on Slander, 72. §§ l66, 167.] IS ACTIONABLE. 237 § 166. Words charging a burning amounting to arson, whether at common law or by statute, are action- able ; ' but charging one with burning his own store," or the barn of another, is not actionable.^ But to charge one with burning his own store to defraud the insurers would be actionable/ § 167. A general charge of forgery made orally is actionable ; ^ and so to charge, " You are a rogue, for you forged my name," ^ or "you signed my name without my 1 Brady v. Wilson, 4 Hawks (N. Car.) 93 ; Case v. Buckley, 15 Wend. 327;. Jones V. Hungerford, 4 Gill & Johns. 402; House v. House, 5 Har. & Johns. 124 ; Wallace v. Young, 5 B. Monr. 155. Saying, " He [plaintiff J has been at different times close about where C.'s gin-house was burned, in disguise," held not to amount to a charge of arson, and not actionable. (Waters v. Jones, 3 Port. 442.) The willful burning of an insured building, with intent to injure the insurer, is, by stat- utes of Wisconsin and Vermont, a felony. Where the complaint alleged that de- fendant knew plaintiff's hop-house was insured, and nevertheless charged him with setting fire to it, there being no evidence of defendant's knowledge, plaintiff was nonsuited. (Frank v. Dunning, 3S Wis. 270.) In absence of any statute, such a charge would not be actionable. (Redway v. Gray, 31 Vt. 292; and see Chace v.. Sherman, 119 Mass. 387.) Plaintiff owned a building in A. It was insured, and accidentally burned. Defendant said of plaintiff: "He is capable of anything.. When the lightning struck K.'s house, how slow it went to the premises of A..; but: he had them insured in three companies. He is the meanest man that ever lived. If he had lived in some counties, he would have been hung long aga" Held ac- tionable. (Weil V. Schmidt, 28 Wis. 13S.) See ante, % 144, subd. c. 2 Bloss V. Tobey, 2 Pick. 310; McNab v. McGrath, 5 Up. Can. Q. B. Rep. O.S. 516; or a building belonging to the wife of plaintiff, but occupied by plaintiff. (Redway v. Gray, 31 Vt. 292.) " He has burnt my barn," not actionable; it cannot,, by innuendo merely, be extended to a barn with corn. (Barbara's Case, 4 Coke, 20.), 3 Barham v. Nethersall, Yelv. 21; Bundy v. Hart, 46 Mo. 460. Charging one with burning a school-house was held actionable (Wallace v. Young, 5 B. Monr. 155) ; and so of a gin-house. (Waters v. Jones, 3 Port. 442.) ^ I Am. Lead. Cas. 3d ed. 117 ; and see Tebbetts v. Goding, 9 Gray (75 Mass.), 254 ; Bretton v. Anthony, 103 Mass. 37; contra, Redway v. Gray, 31 Vt. 292. 5 Alexander v. Ale.vander, 9 Wend. 141 ; Andrews v. Woodmansee, 15 Wend.. 232 ; Nicols V. Hayes, 13 Conn. 155 ; Arnold v. Cost, 3 Gill & Johns. 219. "Thou hast forged a deed or bond," actionable ; but " thou hast forged a writing," not ac- tionable'' (Motley V. Slany, Keb. 273; Austie v. Mason, Cro. Eliz. 554: Reynell v.. Sackfield, 2 Bulst. 132; Aier v. Frost, Rolle R. 431 ; s. c. Frost v. Ayer, 3 Bulst. 265; Andrews v. Bird, Het. 31), unless with an innuendo, a deed. (Anon. Sid. 16; and'see Goodale v. Castle, Cro. Eliz. 554) " You have falsely forged your father's hand, and thereby falsely have procured your father's tenants to pay rents to you which were due to your sister," held not actionable. (Venard v. Woton, Cro. Eliz. 166.) See ante, % 144, subd. k. ^ Jones V. Hearne, 2 Wils. 87. 16 238 WHAT ORAL LANGUAGE [CH. VIII. permission." ' But held not actionable to say, " Thou hast forged my hand," or "thou art a forger."^ The writing charged to have been forged must, it seems, be one w^hich, if genuine, would operate as the foundation of another's liability.^ It has been held actionable to charge the forgery of a deposition,-* a warrant,^ a petition to the Legislature for a grant of land ; ^ and so of a letter containing these words : " I have to inform you I have received your money, and want you to come and receive it." ^ § 168. A general charge of being a murderer,^ or of having killed another, is actionable.' Thus held action- able to say, "Thou hast killed a man ; "'° " Vou killed my brother;"" " You killed one negro and nearly killed an- other ; " " " George Button is the man who killed my hus- band ;"'3 " I will call him in question for poisoning his ' Creelman v. Marks, 7 Blackf. 281. 2 Vin. Abr. Act. for W'ords, G, a, 20. ^ Jackson v. Weisiger, 2 B. Monr. 214. " You say you were authorized by P. to draw bills on him. You never were authorized; if you have any letters from him, they are forged." These words held not actionable. (Mills v. Taylor, 3 Bibb, 469.) * Atkinson v. Reding, 5 Blackf. 39; or forging writs. (Hungerford v. Watts, 4 Lev. i8i; Sale v. Marsh, Cro. Eliz. 178 ; contra, Halley v. Stanton, Cro. Car. 268.) * Stone V. Smalcombe, Cro. Jac. 648; Thomas v. Axworth, Hob. 2. ' Alexander v. Alexander, g Wend. 14. ' Ricks V. Cooper, 3 Hawks (N. Car.) 587. See § 144, subd. k, ante. * Dudley v. Robinson, 2 Ired. 141 ; Vin. Abr. Act. for Words, G, a, 11; atite, § 144, subd. m, s; but the words, " Thou art a murderer and a bloody fellow, and I am afraid of you," were held ndt actionable. {Id. 25.) To call one murderer be- cause he killed a dog, not actionable ; {dictum, Waggoner v. Richmond, Wright, [Ohio], 173 ; see note p. 170, and 7iotc 3, p. 195, ante) ; and the words, " They are highwaymen, robbers, and murderers," appearing to be spoken in reference to a transaction not involving robbery or murder, were held not actionable. (Van Rens- selaer V. Dole, I Johns. Cas. 279.) ^Johnson v. Robertson, 4 Port. 4S6 ; Chandler v. Holloway, Id. i3. It need not be alleged the party charged to have been killed is in fact dead. (Carroll v. White, 33 Barb. 6i3; see ante, notes i, p. 185, and 4, p. 228, and § 144, subd. m. s.) '** Cooper V. Smith, Cro. Jac. 423; Banfield v. Lincoln, Freem. 27S. " Taylor v. Casey, Minor, 258. "Thou art a rogue and rascal, and hast killed thy wife," held actionable. (Wilner v. Hold, Cro. Car. 489.) '^ Hays V. Hays, i Humph. 402. ^^ Button V. Heyward, 8 Mod. 24. Held actionable to say, " Thou didst poison § 169.] IS ACTIONABLE. 239 own aunt, and make no doubt but to prove he hath poi- soned his aunt ; " ' and the words, " He killed my child ; it was the saline injection that did it," with an innuendo that it was meant to charge the plaintiff with feloniously killing a child by improperly and with gross negligence and culpable want of caution administering the injec- tion."^ § 169. A general charge of being a thief ^ is actiona- ble, as to call one " A hog thief," ■• " A bloody thief." ^ It is actionable to say of one, " He is a thieving person, he stole and ran away ;"^ or, " He is a thief, he stole my wheat and ground it and sold the flour to the Indians ; " ' or, " He is a thief; you have robbed me of my bricks." ^ The charge is not the less actionable because made indi- thy husband " (Gardiner z'. Spurdance, Cro. Jac. 43S); or, " T. [plaintifT] killed thy husband" (Toose Case, Cro. Jac. 306) ; or, " Thou hast killed a man" (Godfrey v. More, Cro. Eliz. 317); or, "Thou hast killed my wife" (Talbot's Case, Cro. Eliz. 823); or, " Thou hast killed thy wife" (Wilner v. Hold, Cro. Car. 489). ' Webb V. Poore, Cro. Eliz. 569. See ante, % 144, subd. x. Not actionable to say, " It could be proved by many violent presumptions that he [plaintiff J was the death of P." (Weblin v. Meyer, Yelv. 153) ; or, " I doubt not but to see thee hanged for killing Mr. Sydman's man who was murdered." (Anon. Jenk. 302.) It was held actionable to say, "Thou hast murdered A., thy late servant." If A. is not dead, or if there were no such person, the scandal is the greater (Green v. Warner, 3 Keb. .624); or, "Thou didst kill thy master's cook." (Cooper z/. Smith, Cro. Jac. 423; and see Barrens v. Ball, Id. 331.) ^ Edsall V. Russell, 5 Scott N. R. 801; 2 Dowl. N. S. 614; 4 Man. & G. 1090; and see Carroll v. White, 33 Barb. 615, and anU, % 144. The words, " That knave Davis, the apothecary, hath poisoned my uncle; I will have him digged up again, and hang him," held actionable. (Davis v. Ockham, Sty. 245.) ' Dudley v. Robinson, 2 Ired. 141 ; and see an(e, note 3, p. 236 ; or of hav- ing been a thief, ante, note 10, p. 223 ; and see § 144, subd. p, r, z, bb, dd, ec. * Hogg V. Wilson, i N. & M. (So. Car.) 216. * Fisher v. Rotereau, 2 McCord (So. Car.) 189. * Alley V. Neely, 5 Blackf. 200 ; Reynolds v. Ross, 42 Ind. 3S7 ; and see ante, note 3, p. 236. ' Parker v. Lewis, 2 Greene (Iowa), 311. « Slowman v. Dutton, 10 Bing. 402 ; 4 M. & Sc. 174. " Thou art a thief, and hast stolen twenty load of my furze," held not actionable. (Clarke v. Gilbert, Hob. 331.) As to furze, the presumption is it is attached to the soil ; as to bricks, the presumption is they are chattels. " Ayres is a thief and hath stolen my apple trees," ' actionable. (Ayres' Case, 2 Brownl. 280.) 240 WHAT ORAL LANGUAGE [cH. VIII. rectly.' Thus it was held actionable to say, " Tell him [plaintiff] he is riding a stolen horse, and has a stolen watch in his pocket ;"' or, " I saw him take corn from A.'s crib twice, and look round to see if any person saw him measuring ; "3 or, " You get your living by sneaking about when other people are asleep. What did you do with the sheep you killed ? Did you eat it ? It was like the beef you got the negroes to bring you at night. Where did you get the little wild shoats you always have in your pen ? You are an infernal roguish rascal ; " * or, " There is the man who stole my horse and fetched him home this morning." ^ A charge by one partner against his copartner of " pilfering" out of the store, held action- able ;^ and held actionable to say of one, " He ^00/: my wood, and is guilty of any and everything that is dishon- est ; " ^ or, " He robbed the United States mail ; " ^ and it is actionable to charge one having the custody of goods with stealing them ; ^ but held not actionable to charge a weaver with stealing filling sent to his house to be woven into cloth.'° ' M'Kennon v. Greer, 2 Watts (Pa.) 352 ; Mayson v. Sheppard, 12 Rich. Law (So. Car.) 254. " I believe he will steal, and I believe he did steal," amount to a charge of larceny. (Dottarer v. Bushey, 16 Penn. St. R. 204 ; and anie, § 144, subd. dd.) The wife of B. was asked by C., "Wherefore will your husband hang S.?" She answered, "For breaking our house in the night and stealing our goods." Held actionable, although spoken in answer to a question. (Hayward v. Naylor, I Rolle Abr. 50.) So publishing in writing, that certain property had been stolen and the thief was believed to be plaintiff, held actionable. (Simmons v. Holster, 13 Min.. 249.) ' Davis V. Johnston, 2 Bailey, 579. ^ Jones V. McDowell, 4 Bibb, 188. * Morgan v. Livingston, 2 Rich. 573. ^ Bonner z: Boyd, 3 Har. & J. 27S. * Beckett v. Sterrett, 4 Blackf. 499. Pilfering held not actionable. (Charter v. Hunter, Cro. Eliz. 424.) Actionable to say, " She is as very a thief or a worse thief than any that robbeth by the highway." (Ratcliffe v. Shubley, Cro. Eliz. 224.) ' Dottarer v. Bushey, 16 Penn. St. Rep. 204. * Jones V. Chapman, 5 Blackf. 88. ' Gill V. Bright, 6 B. Mon. 130. " Hawn V. Smith, 4 B. Mon. 385 ; but see ante, in note, p. 184, and § 144. To^ charge one with stealing cotton held actionable, although the charge was made in § 170.] IS ACTIONABLE. 24I § 170. A charge of larceny, that is, the taking ammo furandi the personal property of another, the subject of larceny, is actionable ; ' thus the words, " You have stolen my belt," ^ or " my boards," ^ or " my tea,"'^ were held ac- tionable. And so of the words, " You robbed me, for I found the thing you done it with ; " ^ or, " You robbed W. ;"^ but the words, "He robbed the treasury and bought a farm with it,"^ or " Bear witness he hath stolen my cloth," held not actionable.^ Charging plaintiff with having stolen a barrel of pork, may or may not be action- able, according to the circumstances of the publication ;'' but semble to render them non-actionable it must appear that the facts could not in any view amount to a felony." allusion to cotton which the plaintiff had to gin for the defendant's brother (Stokes V. Stuckey, i McCord, 562) ; and as an overseer of an estate may be guilty of stealing the goods of his employer intrusted to him, it was held actionable to charge an over- seer with stealing corn of his employer. (Wheatley v. Wallis, 3 Har. & J. i.) ' Galloway v. Courtney, 10 Rich. 414; Blanchard v. Fisk, 2 N. H. 398 ; Bon- ner V. Boyd, 3 Har. & Johns. 278 ; Wheatley v. Wallis, -^ Id. \\ Stokes v. Stuckey, I McCord, 562 ; Gill v. Bright, 6 B. Mon. 130; Gaul v. Fleming, 10 Ind. 253 ; and see ante, § 144, subd. /, z, bb, dd, ee, and note 2, p. 229. A charge of taking clothes i/c\ J^ 144, subd. M. * Iloskins V. Tarrence, 5 Blackf. 417. This decision was on the hypothesis that stealing a key out of the lock of a door is larceny. It was so held in Rex v. Hedges, I Leach C. C. 201, 4th ed., but is said to be " clearly wrong." Heard on Libel, p. 37, note 4. Actionable to say: " You never thought well of me since G. [plaintiff] did steal my lamb" (Grave's Case, Cro. Eliz. 289) ; or, " I dealt not so unkindly by you [plaintiff] wlien you stole a sack of corn." (Cooper v. Hakewell, 2 Mod. 58.) "J. W. [plaintiff] was in question for stealing a mare, and hue and cry went out after him, and he durst not show his face hereabouts," doubtful if actionable. (Gray v. Wayle, Sty. 159.) A. said to B. [the defendant], " My sheep were feloniously stolen away." B. replied, "I know who took them ; it was J. S." Held actionable. (Hel- ly V. Hender, 3 Bulst. 83.) "Go follow suit against W. [the plaintiff] for stealing thy two kine, and hang him," held actionable. (Willymote v. Welton, Cro. Eliz. 904.) So were the words, " He is infected of the robbery and murder lately com- mitted, and doth smell of the murder." (Hawley v. Sidenham, Vin. Abr. Act. for Words, P, a, 14.) " You might have known your own sheep and not have stolen mine," court divided if actionable or not. (Thompson v. Knott, Yelv. 144.) " Thou [plaintiff] hast stole my mare or was consenting to it," held not actionable ; the plaintiff might consent and yet be faultless, and the latter part of the sentence con- trolled the first. (Anon. Noy, 172.) " S. [plaintiff] did steal a mare, or else G. is. forsworn," not actionable, not being a direct charge of stealing. (Sparkham v. Pye, Cro. Jac. 532.) So the words, " You as good as stole the canoe of J. H.," were held not actionable perse. (Stokes v. Arey, 8 Jones L. [N. Car.] 66.) 3 Stitzell v. Reynolds, 9 P. F. Smith, 488 ; and see Hall v. Adkins, 59 Mo. 144. § I 7 I.] IS ACTIONABLE. 243 that larceny was intended/ " He sheared two of Zack. Austin's sheep," " He sheared two of Zack. Austin's sheep and kept the wool," with an innuendo that a larceny was intended, but without any colloqtimm, held not actiona- ble.^ An action will not lie, without allegation of special damage, for the words, " You had a share in breaking into the store," alleged to refer to a robbery of a store belonging to the plaintiff and defendant as copartners.^ § 171. A direct charge of perjury is actionable per 5^4 and it is actionable to say of one, "The Reverend Thomas Smith is a perjured man," ^ or - He peijured himself,"' or '' He committed perjury by swearing in his vote at' the school district meeting ;^ and where the de- fendant, speaking of an allegation in an affidavit made • Connick v. Wilson, 2 Kerr(N. Bruns.) 496. - Brown v. Finer, 6 Bush (Ky.) 596. ' Aefele v. Wright, 17 Ohio, 238. ^ Newbit V. Statuck, 35 Maine (5 Red.) 315 ; Bell v. Farnsworth, 11 Humph. 608; Eccles V. Shannon, 4 Harring. 193 ; Cook v. Bostwick, 12 Wend. 48 ; Hopkins V Beadle i Cai. 347 ; Kern v. Tovvsley, 51 Barb. 385 ; Gorton v. Keeler, Id. 475 ; Commons v. Wallers. I Port. 377 ; Hall v. Montgomery, 8 Ala. 510 ; Haws v. Stan- ford 4 Sneed 520 ; Lee v. Robertson, I Stew. 138 ; Chapman v. GiUett, 2 Conn. 40; as to perjured knave, see note. 12, p. 236, ante. A., speaking with reference to a complaint preferred by him before the grand jury against B., said that "he went before the grand jury, and asked them if they wanted any more witnesses and they said they had witnesses enough to satisfy them ; " held, actionable, if he there- by meant to impute perjury to B. (Rundell v. Butler, 7 Barb. 253.) Saying of plaintiff, he was under a charge of prosecution for perjury, and that G. W. (an at- torney of that name) had the attorney general's directions to prosecute the plaintiff for perjury, held actionable after verdict for plaintiff. (Roberts v. Camden, 9 East. 93 ) And sayin Cook V. Bostwick, I2 Wend. 48. The words, "he has delivered false evidence and untraths in his answer to a bill in chancer)'," held not actionable. (l Rolle Abr. 70; 3 Inst. 167.) Where the allegation was " we have no reply to make to a lad [plaintiff] convicted of perjury, by the solemn oath of a gentleman whose veracity is unimpeached," and the context showed that, by convicted it was really meant that the plaintiff was contradicted by the gentleman referred to, held error to instruct the jury that the charge, " convicted of perjury," was actionable, per se, as such instruc- tion implied that the charge was of technical perjury. (Pugh --. McCarty, 40 Ga. 444-) "■ Packer v. Spangler, 2 Binn. (Pa.) 60; Sheely v. Biggs, 2 Har. & J. 363 ; Power V. Miller, 2 McCord, 220 ; Martin v. Melton, 4 Bibb (Ky.) 99; Sluder v. Wilson, 10 Ired. 92; Beswick v. Chappel, 8 B. Mon. 486; Roella v. Follow, 7 Blackf. 377; Vaughan v. Havens, 8 Johns. 109 ; Chapman v. Smith, 13 Johns. 78 ; Hopkins v. Beadle, I Cai. 347 ; Phincle v. Vaughan, 12 Barb. 215 ; Barger v. Barger, 18 Penn. State Rep. 489; Blair v. Sharp, Breese, II ; McManus v. Jackson, 28 Miss. (7 Jones), 56 ; Watson v. Hampton, 2 Bibb, 319 ; Shinloub v. Ammerman, 7 Ind. 347 ; Mebane f. Sellars, 3 Jones' Law (N. Car.) 199; Harris t'. W^oody, 9 Miss. 113; Horn v. Foster, 19 Ark. 346; Harvey v. Boies, I Penn. 12; Dalrymple v. Lofton, 2 Speer, 588; Shaffer v. Kintzer, l Binn. (Pa.) 537 ; Hall v. Montgomery, 8 Ala. 510; Wal- rath V. Nellis, 17 How. Pr. R. 72 ; W^ard v. Clark, 2 Johns. 10 ; Stafford v. Grier, I Johns. 505 ; Robertson v. Lea, i Stew. 141 ; but see Rue' v. Mitchell, 2 Ball. 58 ; Canterbury v. Hill, 4 Stew. & Porter, 224; Smale v. Hammon, I Bulst. 40: Lewis V. Soule, 3 Mich. 514 ; Hall v. Weedon, 8 Dowl. & R. 140 ; Colomes" Case. Cro. Jac. 204. " Mr. H.'s oath is not to be taken, for he has been a forsworn man. I can bring people to prove it, and they that know him will not sit in the jury-box with him." W^ithout any colloquium, referring the words to the conduct of the plaintiff as a juryman, and no special damage, held not in themselves actionable, and judg- ment arrested. (Hall v. Weedon, 8 D. & R. 140.) You swore to a lie in that suit we had at Liberty, held actionable /cr se ; ^ 1 Horn V. Foster, 19 Ark. 346 ; Darling v. Banks, 14 111. 47 ; Wilson v. Oliphant, Wright, 153 ; Crookshank v. Gray, 20 Johns. 344 ; Ross v. Rouse, I Wend. 475 ; Dayton v. Rockwell, 11 Wend. 140; Power v. Price, 12 Wend. 500; s. C. 16 Wend. 450 ; Roberts v. Champlin, 14 Wend. 120 ; Wilson v. Cloud, 2 Speer, i ; Owen v. McKean, 14 111. 459 ; M'Gough v. Rhodes, 7 Eng. 625. - Stone V. Clark, 21 Pick. 51 ; and see McKinley v. Rob, 20 Johns. 351 ; Smith V. Smith, 8 Ired. 29; Wilson v. Cloud, 2 Speer, I. 3 Ross V. Rouse, l Wend. 475. Perjury may be alleged in swearing to a promise within the statute of frauds, and therefore a charge of false swearing as to such a promise may be actionable. (Howard v. Sexton, 8 N. Y. 157.) * Jones V. Marrs, 11 Humph. 214; Dalton v. Higgins, 34 Ga. 433 ; Benkelt v. McCarty, ioBush(Ky.)758 ; and see VanSteenbergh v. Kortz, 10 Johns. 167; Niven V. Munn, 13 Johns. 48 ; Cro. Car. 378 ; i RoUe Abr. 39. ' I Starkie on Slander, 28 ; Byron v. Elmes, 2 Salk. 693 ; W. v. L. 2 Nev. & M. 204 ; Berry v. Carter, 4 Stew. & Port. 387 ; Eliot v. Ailsberry, 2 Bibb, 473; Keiler V. Lessford, 2 Cr. C. C. igo ; Ranger v. Goodrich, 17 Wis. 78 ; Rogers v. Lacey, 23 Ind. 507 ; Pettibone v. Simpson, 66 Barb. 493 ; contra, in Connecticut (Frisbie V. Fowler, 2 Conn. 707), in Kentucky, since the statute of iSii (McGee v. Wilson, Litt. Sel. Cas. 187 ; Smalley v. Anderson, 2 T. B. Mon. 56), in Illinois (Spencer v. M'Masters, 16 111. 405), in Missouri (Moberly v. Preston, 8 Mo. 462 ; Stieber v. Wensel, 19 Mo. 513), in Ohio (Malone v. Stewart, 15 Ohio, 319 ; Wilson v. Rob- bins, Wright, 40; Wilson v. Runyon, Id. 651 ; Sexton v. Todd, Id. 317), in Mary- ^ 172.] IS ACTIONABLE. 249 as, thus, except in the city of London and borough of Southvvark it is not actionable to call a woman a whore/ or prostitute, or common prostitute,^ or to charge an un- married woman with having had a b astard,^ or to call a land (Terry v. Bright, 4 Md. 430), in Alabama (Sidgreaves v. Myatt, 22 Ala 617; but see Berry v. Carter, 4 Stew. & Port. 387). in Indiana (Shields v. Cunningham, i Blackf 86- Worth v. Butler, 7 Id. 251; Rodeburg v. HoUingsworth, 6 Ind. 639 ; Rodgers ...'Lacey, 23 Ind. 507 ; Linck v. Kelley, 25 Ind. 278 ; Blickenstaff r^ Per- rin 27 Ind 527), in North Carolina (McBrayer v. Hill, 4 Ired. 136 ; Snow v. Witch- er'o /^ 346), in South Carolina (Watts v. Greenlee, 2 Dev. 115 ; Freeman v. Price, 2 Bailey 115), in Iowa (Beardsley v. Bridgman, 17 Iowa, 290 ; Cleveland v. Det- weiler 18 Id. 299 ; Cox v. Bunker, Morris, 369; Dailey v. Reynolds, 4 G. Greene, 354; Freeman z;. Taylor, 4 Iowa, 424; Smith v. Silence, Id. 321; Snediker v. Poorbaugh, 29 Id. 488). 1 12 Mod. 106 ; Holt R. 40; Keb. 418; Sid. 97 ; Robertson v. Powell, 2 Selw. N P 1224 ; Alsop V. Alsop, 5 Hurl. & Nor. 534 ; Williams v. Holdridge, 22 Barb 397; Linney z.. Malton, 13 Texas, 449 ; Underbill v. Welton, 32 Vt. 40; Boyd z; Brent 3 Brev. 241 ; contra. Pledger v. Hatchcock, I Kelly, 55o; Cox v. Bunker, I Morris,' 269 ; Mayer v. Schleichter, 29 Wis. 646. " Drunken whore," held action- able (Williams V. Greenwade, 3 Dana [Ky.] 432) ; and so was " whore. (Smith V Silence, 4 Iowa, 321 ; Kelly v. Dillon, 5 Ind. 426: Clarke v. Mount, Opm.onsm the Mayor's Ct. 18 ; Martindale v. Murphy, Barton [N. Brunswick], 85. The fol- lowing words have been held actionable : " You are a whore. I can have a better whore for a groat. You get your living by your tail ; " or, " You are a whore and have played the whore with so many men you cannot number them ; or. 1 hou art a whore and hast been carted; " or, " Thou art a whore and hast been in Bride- well •" or " Thou art a whore, and hast emptied thy cask m the country ; or, "Thou art a whore, and thy plying place is in Cheapside, where thou gettest 40s. a day " (Vin Abr. Act. for Words, D, a, 39, 42, 45-) The words import more than the bare calling a woman whore. (Hicks v. Joyce, Sty. 394 ; Bassil v. Elmore, 65 Barb 627 ) " Common whore," held actionable. (Green v. How, Sty. 323.) And held actionable to call one " A whore who held a copyhold dum casta vtxent." (Boys V Boys Sid. 214.) But held not actionable to say to or of a woman, " You are a whore, and keep a man to lie with you" (Gascoigne v. Ambler, 2 Ld. Raym. 1004) • or " She is a, whore, and had a bastard by her father's apprentice." (Graves V Blanchard, 2 Salk. 696 ; and see Anon. Id. 694.) Calling a woman "whonsh bitch" actionable in Alabama. (Scott v. McKinnish, 15 Ala. 662.) To call a woman a strumpet is not equivalent to calling her a whore. (Williams v. Bryant, 4 Ala 44 • cont,a. Cook v. Wingfield, i Stra. 555-) By custom in the city of Bristol, it is actionable to call a woman strumpet. (Power v. Shaw, I Wils. 62.) See m § 213, post. ■^ Brooker v. Coffin, 5 Johns. 188; Wilby v. Elston, 8 C. B. 142 ; 7 Dowl. & L. 143 ; I Starkie on Slander, 28. See ante, § 144, subd. ;'. ^'vin Abr. Act. for Words, D, a, 19, 23 ; Graves v. Blanchard, 2 Salk. 696, in note I, szfpra; and saying to a married woman, "Thou bold Colabynes, bastard- bearing whore, thou didst throw thy bastard into the dock," at Whitechapel, held not actionable. (Colabyn v. Viner, W. Jones, 356-) So saying of a woman, " She had a child and either she or somebody else made away with it," was held not actionable. (Falknerz.. Cooper, Carth. 55-) "She had a child while at Mrs. Kirkwood's," 250 WHAT ORAL LANGUAGE [ciL VII L woman a bawd,' or to charge an unmarried woman with fornication,^ or a married woman with adultery,^ or a woman with being of a wanton and hiscivious disposition,^ or of being addicted to self-pollution, ^ or to say of a woman, " She was hired to swear the child on me ; she has had a child before this, when she went to Canada ; she would come damned near going to the State prison."^ But it has been held actionable to say of a woman, she is a "loose woman," 7 or to charge conduct amounting to open and gross lewdness,^ or to say of a married woman, " She slept with one not her husband,"^ or to charge an unmarried w^oman with being in the family-way ; '° and. spoken of an unmarried woman, not actionable. (McQueen v. Fulghan, 27 Texas, 463.) In Ohio, held actionable to charge a woman with having had a bastard by the man she afterwards married. (Murray v. Murray, i Cine. [Ohio], 290.) ' Gavel V. Birket, Sid. 438 ; contra, Hicks v. Hollingshead, Cro. Car. 261. * Buys V. Gillespie, 2 Johns. 115; such a charge is actionable in Kentucky (Smalley v. Anderson, 2 T. B. Mon. 56), in Ohio (Wilson z/. Robbins, Wright, 40), in North Carolina (McBrayer z/. Hill, 4 Ired. 136), in Indiana (Rickett v. Stanley, 6 Blackf. 169^ and in New Jersey (Joralemon ?'. Pomeroy, 2 N. Jersey, 271). Charg- ing an unmarried woman with being " a bad character," and guilty of fornication, held actionable in Iowa. (Dailey v. Reynolds, 4 Greene, 354. And sttante, § 144, subd. /, and post, note g, p. 254.) * Woodbuiy v. Thompson, 3 N. Hamp. 194 ; Stanfield v. Boyer, 6 liar. & J. 24S ; Grififin v. Moore, 43 Md. 426 ; contra. Miller v. Parish, 8 Pick. 3S4 ; and see Walton V. Singleton, 7 S. & R. 449. To charge a woman with fornication or adultery, or incontinence in any form, is not actionable at common law. (Heard on Libel, p. 46, citing in addition to the cases already noted, Ayrc v. Craven, 2 Adol. & El. 2 ; 4 Nev. & M. 220; Evans v. Gwyn, 5 Q. B. 844. And sec Davies v. Solomon, Law Rep. 8 Q. B. 112.) * Lucas V. Nichols, 7 Jones' Law (N. Car.) 32. * Anon. 60 N. Y. 262. ° Brooker v. Coffm, 5 Johns. 188. ' Adcock V. Marsh, 8 Ired. Law (N. Car.) 360. * Underbill v. Welton, 32 Vt. 40. * Guard v. Risk, 11 Ind. 156 ; contra. Pollard v. Lyon, i Otto (91 U. S. Rep.) 225. Charging a married woman with taking men into her bedroom, with aver- ments showing it was for adulterous purposes, held actionable. (Waugh v, Waugh, 47 Ind. 580.) '" Smith V. Minor, Coxe, 16; Miles v. Van Horn, 17 Ind. 245 ; contra, see Shep- herd V. Wakeman, Sid. 79 ; Lev. 37. To say of a married woman she " is in a Jix," meaning, by local usage, she is pregnant, is not actionable, but actionable if said of an unmarried woman. (Acker v. McCullough, 50 Ind. 447 ; and see Wilson v. Barnett, 45 Ind. 163.) § I 73-] IS ACTIONABLE. 25 I adding, " I can prove it by A. that she has been taking camphor and opium pills to produce an abortion ; " ' or, " She had two or three little ones to A. ;"^ or, " Her child is A.'s, and A. was keeping her unmarried for his own purposes : " ^ or, charging sexual intercourse with a dog;'^ and where the defendant said of the plaintiff, that B. told him that on Sunday, at the camp-meeting, he scared the plaintiff and a man up from behind a log ; that they broke and run, and that he (B.) got her (plaint- iff's) parasol and handkerchief, held that these words were actionable ; ^ but saying of a woman, " She went down the river to the goose-hoitse,'' without averring any special meaning to goose-house, was held not ac- tionable.^ § 173. The following words and phrases published orally of an individual as such, have been held actionable per se : Bogus peddler,^ dealer in counterfeit money, ^ ' Miles V. Van Horn, 17 Ind. 245. " It's my soul's opinion that nothing else kept that girl in the house last winter but taking medicine to banish the young baker," innuendo that plaintiff had taken medicine to procure an abortion, held ac- tionable. (Miller v. Houghton, 10 Up. Can. Q. B. R. 348.) And held actionable to say of a woman : " She procured or took medicines to kill the bastard child she was like to have, and she did kill or poison the bastard child she was like to have." (Widrig V. Oyer, 13 Johns. 124.) In slander, held that to charge a woman with causing or procuring an abortion upon herself, was not charging her with an indict- able offense, under the statute of Iowa, unless it appeared that the child was quick, and that an action could not be maintained upon such a charge. (Hatfield v. Gano, 15 Iowa [7 With.] 177.) Charge of administering pills to drive off a child, equivalent to a charge of abortion, and actionable. (Filben v. Deutermann, 26 Wis. 518.) ' Symonds v. Carter, 32 N. Hamp. 458, and ante, note 3, p. 249 ; Beardsley v. Bridgman, 17 Iowa, 290. ' Richardson v. Roberts, 23 Ga. 215 ; Downing v. Wilson, 36 Ala. 717. She [plaintiff] is not chaste. I have kept her, and had criminal intercourse with her ; or, " I have had sexual intercourse with her," held not actionable. (Berry v. Carter, 4 Stew. & Port. 3S7; contra, Adams v. Rankin, I Duval [Ky.] 58.) The words : " I have lain with her and pockified her," held actionable. (Neal v. Mallard, 2 Show. 312.) •* Cleveland v. Detweiler, 18 Iowa, 299; and see ante, note, p. 184. ' Proctor V. Owens, i3 Ind. 21. " Dyer v. Morris, 4 Mis. 214. As to words of a woman with allegation of special damage, see § ig8, post. ' Pike V. Van Wormer, 6 How. Pr. R. loi ; 5 Id. 175. ■^ Pike V. Van Wormer, 6 Plow. Pr. R. 99. 252 WHAT ORAL LANGUAGE [CH. VIH. deserter,' knave,' pickpocket,^ sheepstealer," traitor,^ com- mon barrator or champertor,^ receiver of stolen goods,^ counterfeiter.^ I charge you with felony i'^ you are a rogue, and I will prove you a rogue, for you forged my name ; '° concealing stolen goods," purchasing stolen goods, knowing them to have been stolen." Hog thief '^ He is a rogue, and has stolen my sheep.'* Vou have altered the marks of four of my hogs ; '^ he killed a horse.'^ You have removed my landmarks ; cursed is he ' Hollingsworth v. Shaw, 19 Ohio St. 430. " Knave imports dishonesty, and is actionable. (Harding -'. Brooks, 5 Pick. 244 ; contra, see Week's Case, i Sid. 149; Latch, 159; and Monthly Law Rep. Oct. 1862, p. 716.) Pillory knave held actionable (Brown v. Dankes, Cro. Eliz. 11); denied (Smith's Case. Cro. Eliz. 31). In the lime of Henry VI, knave was a good addition to a man's name, and the term had not a defamatory meaning. There is said to be an edition of the New Testament, which reads : Paul, a knave of Jesus Christ, in- stead of Paul, an apostle. (See Halliwell's Diet, of Archaic Terms.) ^ Stebbing v. Warner, 11 Mod. 255 ; and see note 2, p. 210, ante. * Parret v. Parret, 3 Bulst. 303 ; Vin. Abr. Act. for Words, I, a, 5. ^ Dal. 17; Bellingham v. Minors, Cro. Eliz. 133. " Thou hast spoken treason, and that I will prove; " " I will hang him, for he hath spoken treason," actionable. (Berisford v. Press, Cro. Jac. 275.) See Rebel. ''Vin. Abr. Act. for Words, H, a, 7 ; Heake v. Moulton, Yelv. go; Box v. Barn- aby. Hob. 117; but maintainer of suits is not actionable. (/. Jones, 2 Dev. 162 ; Quinnz/. O'Gara. 2 E. D. Smith, 388. " Your father was a horse-stealing rogue, and you [plaintiff] are a great rogue," not actionable. (Bellamy v. Barker, i Strange, 304.) Rogue, rascal, scoundrel, and the like, are not actionable, (i Starkie on Slander, 24.) After 256 WHAT ORAL LANGUAGE [ciL VIII, arrant ro^^uc,' damned ro^ruc.^ you are a rogue, and cheated J. S. out of ^100,^ sacrilege,* scoundrel,' sor- cerer/ sodomite,^ swindler," libeler,^ vagrant or vaga- bond,'" rebel," welcher/^ free negro,'^ varlct.'* villain, '^ witch,'^ whoremaster,'' bastard.'^ He is father of a bas- verdict for plaintiff in an action for calling him "a rogue," the court refused to arrest the judgment. (Borbidge 7: Herst, 6 Phila. Rep. [Legal Intel. Cond.] 391 ; s. C. Herst v. Borbidge, 57 Penn. St. Rep. 62.) ' Vin. Abr. Act. for Words, G, n. ' Oakley v. Farrington, I Johns. Cas. 129; Caldwell v. Abbey, Hardin (Ky.) 529. God damned rogue, not actionable. (Ford v. Johnson, 21 Ga. 399.) 3 Winter z>. Sumvalt, 3 Har. & J. 3S. Saying one was a rogue of record was held actionable. (Sty. 220.) " Gaudie v. Smith, i Sid. 376. 5 Quinn v. O'Gara, 2 E. D. Smith, 3SS. • Vin. Abr. Act. for Words, H, a. "" Anon. 29 Up. Can. Q. B. R. 456. Charging a woman with sodomy, actionable. (Haynes v. Ritchley, 30 Iowa, 76.) * Chase v. Whitlock, 3 Hill, 139; Saville f. Jardine, 2 H. Black. 531 ; Odiorne V. Bacon, 6 Cush. 185 ; Stevenson v. Hayden, 2 Mass. 406; Weil v. Altenhofen, 26 Wis. 708 ; Lucas v. Flynn, 35 Iowa, q. To say of a bank director he is a swindler, held actionable. (Forrest v. Hanson, I Cranch C. C. Rep. 63.) To write of one he is a swindler, is actionable. (I'Anson v. Stuart, i T. R. 748 ; see notes 8, 9, p. 264, />ost. " Andres v. Koppenheafer, 3 Serg. & R. 255 ; see § 177, /oj/. '» Corcoran v. Corcoran, 7 Ir. Com. L. R. N. S. 272 ; Campbell v. White, 5 / Johnson V. Stebbins, 5 Ind. 364 ; Lansing v. Carpenter, 9 Wis. 540. « O'Brien v. Clement, 15 M. & W. 435 ; Johnson v. Stebbins, 5 Ind. 364; Adams I/. Lawson, 17 Gratt.250. - Digby V. Thompson, 4 B- & Adol. 821 ; i Nev. & M. 485. Plaintiff published a medical work not proper for general circulation; he sent a copy to dejendanj/i surgeon Defendant published that plaintiff had improperly left the work in a pub- lic place • that this was a revolting violation of decency, and a demoralizing system of puffing, &c.; /^^/^ actionable. (Wells v. Webber, 2 Fos. & F. 715-) 8 Bell V. Stone, i Bos. & P. 33i ; Obaugh v. Finn, 4 Pike, no. » Riggs V. Denniston, 3 Johns. Cas. 198. "» Shipley v. Todhunter, 7 C. & P. 680. " 2 Leigh N. R 1360; Dunn v. Withers, 2 Humph. 512 ; Melton v. The State,. 3 /d. 380. '■^ Cockayne v. Hodgkisson, 5 C. & P. 543- '3 I Am. Lead. Cas. 138, 3d ed. '■• The State v. Farley, 4 McCord, 317. 15 Hillhouse v. Dunning, 6 Conn. 391. >e Young V. Miller, 3 Hill, 21 ; Quinn v. O'Gara, 2 E. D. Smith, 383. n I Starkie on Slander, 169 ; and see Turner v. Merryweather, 7 C. B. 251 ; Wakley v. Healey, Id. 594 i Gregory v. Reg. 15 Q- B. 957 ; Capel v. Jones, 4 C. B- 259; Prior V. Wilson, i C. B. N. S. 95. 264 WHAT WRITTEN LANGUAGE [c!l, VI II. putes to him a bad reputation " ' or '* degradation of char- acter," " or " ingratitude,"^ and " all defamatory words injuri- ous in their nature."'* But to sustain an action for libel the plaintiff must either show special damage or " the nature of the charge must be such that the court can legally presume he has been degraded in the estimation of his acquaintances, or of the public, or has suffered some other loss either in his property, character or busi- ness, or in his domestic or social relations, in consequence of the publication."^ § 177. It is actionable to charge one m writing with being a villain,^ liar,^ rogue, rascal,^ swindler,' drunk- ' Cooper V. Greeley, i Denio, 347. ■ McCorkle v. Binns, 5 Binney, 340. •' Cox V. Lee, Law Rep. 4 Ex. 284. ^ Chaddock v. Briggs, 13 Mass. 248. For some definitions of libel see ante, note to §21 ; The State v. Avery, 7 Conn. 267 ; Williams v. Karnes, 4 Humph. 9; Clark V. Binney, 2 Pick. 113 ; Baron v. Beach, 5 N. Y. Legal Observer, 448. * Cooper V. Stone, 2 Denio, 299 ; repeated Bennett v. Williamson, 4 Sandf. 65. " There must be some certain or probable temporal loss or damage to make words actionable ; but to impute to a man the mere defect or want of moral virtue, moral duties or obligations, which renders a man obnoxious to mankind, is not actionable. (De Grey, Ch. J., Onslow v. Home, 3 Wils. 177, approved by Lawrence, J., Holt v. Scholefield, 6 T. R. 691.) Held not actionable to publish of plaintiff, " He foameth." (Kinyon v. Palmer, 18 Iowa, 377.) But it is said (i Starkie on Slander, 2), " an action lies in respect of any willful communication, oral or ivriitcn, to the damage of another in law or in fact, made without lawful justification or excuse." " Scandalous matter is not necessary to make a libel. It is enough if the defendant induce an ill opinion to be had of the plaintiff, or make him contemptible and ridic- ulous." (Holt, Ch. J., Cropp V. Tilney, 3 Salk. 226.) " A person cannot say any- thing disparaging of another that has not a tendency to injure him morally or profes- sionally." (Tindal, Ch. J., Doyley v. Roberts, 3 Bing. N, C. 835 ; 5 Scott, 40. See in notes to § 197, post.) In Vermont, an action was sustained for writing the plaintiff a threatening letter. (Grimes v. Gates, 47 Vt. 594.) « Bell V. Stone, i Bos. & P. 331. ' Brooks V. Bemiss, 8 Johns. 455 ; approved Moore v. Bennett, 33 How. Pr. R. iSo ; and see atite, § 144, subd. q. Liar and knave, see King's Case, 4 Inst. 181. A charging that one shot out of a leather gun, meaning that he was guilty of false- hood, held actionable. (Harman v. Delany, 2 Str. 898 ; and post, note 6, p. 266.) * Rogue, rascal, swindler, villain, are libelous. (Cooke on Defam. 2.) " I look upon him as a rascal," actionable. (Williams v. Karnes, 4 Humph. 9.) Felon, de- bauchee, and seducer, are actionable. (Millett v. Hulton, 4 Esp. Cas. 248.) " I'Anson v. Stuart, i T. R. 748 ; see 7iote S, p. 256, ante, and note to § \()2, post. g 177.] IS ACTIONABLE. 265 ard,' cuckold and tory,^ informer,^ the author or publisher of a libel or slander,'^ libelous journalist, ^ a hypocrite, and using the cloak of religion for unworthy purposes ; ^ imp of the devil, ^ a miserable fellow, it is impossible for a newspaper article to injure to the extent of six cents, and that the community can hardly despise him worse than they now^ do;^ or with having kidnapped a free colored man and hurried him into slavery ; "^ or, paid money to procure an appointment to an office, or re- ceived money for offices ; '° or, of having been deprived ' Sanderson v. Caldwell, 45 N. Y. 402. "^ Giles V. The State, 6 Ga. 276. In Smith v. Wood (2 Salk. 692), it is said to call a man cuckold is not an ecclesiastical slander, but to call him witlol is, for wittol imports his knowledge and consent. Shakespeare says : Wittol-cuckold, the devil himself hath not such a name. (Merry Wives of Windsor, act II, scene 2.) A charge in writing of want of loyalty is actionable. (Kinyon v. Palmer, iS Iowa,. 377-) ^ 2 Law Reporter, 126 (London, 1821). Informer, not actionable. (Mawe v. Pigott, 4 Irish C. L. Rep. N. S. 54.) * Andres v. Koppenheafer, 3 Ser. & R. 255; Colby v. Reynolds, 6 Vt. 489; Viele V. Gray, 10 Abb. Pr. R. i ; Kerr v. Force, 3 Cranch. C. C. 8 ; Russell v. Ligon, Vin. Abr. Act. for Words, H, a, 27 ; Clark v. Binney, 2 Pick. 113. Held actionable to publish " a report circulated by B. [the plaintiff) against C, stating he, C, made him, B., pay a note twice, and proved by B. to be false." (Shelton v. Nance, 7 B. Monr. 128.) " A report has gone abroad through the instrumentality of S. W. [the plaintiff], stating that R. W. had a load of falsely packed cotton bales, which report is a direct falsehood," was held actionable. (W^oodbuni v. Miller, Cheves, 194.) " His slanderous reports nearly ruined some of our best merchants," held action- able. (Cramer v. Noonan, 4 Wis. 231.) "He is. a lying and slanderous rascal." (Snowdon v. Linds, i Cr. C. C. 569.) Proof in the case of an imputation of being the author of a libel. (Tracy v. Luke, I Vict. Law Rep. 222.) Formerly a libeler was disqualified from making a will. (See Swinburne on Wills, pt. i, § 8, et seq.; Redfield on Wills, ch. iii, ^ 14 «, p. 118); and the author or publisher of a libel could receive no benefit under the will of the person libeled. (See Domat's Civil Law, bk. I, pt. ii, tit. i, § ill, subd. vii ; Gardner v. Helvis, 3 Lev, 248.) The Prussian Code gives the right to a parent to disinherit a child who uses defamatory words concerning him. ^ Wakley v. Cooke, 4 Ex. 511. •^ Thorley v. Kerry, 4 Taunt. 355. ■' Price V. Whiteley, 50 Mo. 439. ^ Brown v. Remington, 7 Wis. 462. * Nash V. Benedict, 25 Wend. 645. '" Weed V. Foster, 11 Barb. 203 ; and see Purdy v. Stacey, 5 Burr. 2698. 266 WHAT WRITTEN LANGUACE [< H. VIII. of the ordinances of the church ; ' or with l)cing thoup^ht no more of than a horse-thief and a counterfeiter;^ or. with stinking of brimstone and having the itch ; ' or, with votinf^ twice on the same ballot for the election of State offi- cers;* with infracting a patent,^ with falsehood,^ dishonesty,^ moral obliquity,' smuggling,^ blasphemy,'" false swearing," > McCorkle v. Binns, 5 Binn. 340. 2 Nelson v. Musgrave, 10 Mo. 64S. 3 Villers v. Monsley, 2 Wils. 403. In this case the words complained of were : Old Villars, so strong of brimstone you smell, As if not long since you had got out of hell. But this damnable smell 1 no longer can bear, Therefore I desire you would come no more here. You old stinking, old nasty, old itchy, old toad, If you come any more you shall pay for your board. You'll therefore take this as a warning from me, And never enter the doors while they belong to I. P. For a precedent of a declaration on a rhyming libel. The Miller and the Laundress, see 4 Wentworth's Pleadings, 204. * Walker v. Winn, 8 Mass. 248. 5 Watson V. Trask, 6 Ham. 531. * Cooper V. Stone, 24 Wend. 434 ; Lindley v. Horton, 27 Conn. 58 ; Woodbum V. Miller, Cheeves, 194; Shelton v. Nance, 7 B. Monr. 128; and ante, note^, p. 264. ' Hart V. Reed, i B. Monr. 166; Taylor v. Church, i E. D. Smith, 279; S. C. on appeal, 8 N. Y. 452 ; Fowles v. Bowen, 30 N. Y. 20 ; and see Henderson v. Hale. 19 Ala'. 154; Hanna v. Blaquiere, II Up. Can. Q. B. R. 310. Actionable to publish of one that he had been detected in cheating at cards. (Livingston v. Cheatham. Pamphlet Report ; Holt on Libel, 239, note.) Detected implies guilt {ante, § 144, subd. w). Where the defendant wrote concerning the plaintiff, his late servant. " He has now become so inflated with self-importance by the few hundreds made in my service, God only knows whether honestly or other^vise." There was an innu- endo that defendant meant that plaintiff was dishonest in the service of defendant. The jury having found a verdict for the plaintiff, the court refused to distuib the verdict. (Clegg v. Laffer, 3 Mo. & Sc. 727.) * Kerr v. Force, 3 Cranch. C. C. 8 ; s&q post, note to g 206 c. 5 Stilwell V. Barter, 19 W^end. 4S7 ; and see Worthington v. Houghton, 109 Mass. 481. 1" Stow V. Converse, 3 Conn. 325 ; note to § 190, post. 1' Steele v. Southwick, 9 Johns. 214. The words were: "Our army swore ter- ribly in Flanders, said Uncle Toby ; and iT Toby were here now, he might say the same of some modern swearers; the man [meaning A., the plaintiff] is no slouch at swearing to an old. story; " held ihvLt these words, if they do not import a charge of perjury, were libelous, as they held up the plaintiff to contempt and ridicule, as beino- so thoughtless or so criminal as to be regardless of the obligation of an oath. " I hope you will stop swearing lies about the trees. * * I advise you either to quit lying or preaching — one," actionable. (Adams v. Lawson, 17 Gratt. 250.) § 177-] I^ ACTIONABLE. 267 insanity/ or being fit for a lunatic asylum, and unsafe to o-o at large ; " being guilty of gross misconduct in insult- ing females, &c. ; ' with want of chastity ; ' as engaged in serving writs on the anti-renters and catching In- dians ; 5 or for charging that the plaintiff, a married man, went through the ceremony of marriage with an actress ; ^ and to publish an obituary notice of a living person, was held actionable.^ So it was held actionable to publish " his [plaintiff's] sons are vicious and brought up and sup- ported in vice by their father [plaintiff] with his un- lawful earnings."^ It is actionable to charge that plaintiff, being a member of a political party, at a nominating con- vention of such party, offered, from the influence of a bribe, a resolution that no nomination of a candidate for a particular office should be made.^ And publishing a notice that a charitable society acknowledged to have received from defendant a sum of money, being his moiety of a fine levied from the plaintiff for not discharging his excise duties.'" ' Southwick V. Stevens, 10 Johns. 443 ; Morgan v. Lingen, 8 Law Times Rep. N. S. 800; Rex V. Harvey, 2 B. & C. 258 ; Rex v. Creevey, i M. & Sel. 273 ; see, however, Mayrant v. Richardson, i Nott & McCord, 348. - Perkins v. Mitchell, 31 Barb. 461. 3 Clement v. Chivis, 9 B. & Cr. 172 ; 4 M. & R. 127. Allegation in writing that plaintiff [a newsboy] " takes every occasion to insult Republican passengers," "he appears to have been in collusion with ruftians," actionable /^r j^. (Snyder v. Ful- ton, 34 Md. 128.) ^ Bodwell V. Osgood, 3 Pick. 379. A charge in writing that a certain man had planned an elopement with a married woman, naming her, was held to give a cause of action to the woman. (Woodard v. Eastman, 108 Mass. 404.) " Hallock V. Miller, 2 Barb. 632. * Rex V. Kinnersley, l W. Black. 294; and see Caldwell v. Raymond, 2 Abb. Prac. Rep. 193. ' McBride v. Ellis, 9 Rich. Law (So. Car.) 313 ; and see Horstok v. Boniface, i Menzie's Rep. N. S. 467. 8 Kirwan v. Tal'y, Cr. & Dix. Ab. Not. Cas. 388. « Hand v. Winton, 38 N. J. 122. ^' Stapleton v. Macartney, Ir. Term Rep. 90. 268 WHAT WRITTEN LANGUAGE [cil. Mil. § 177 ^. Plaintiff having defendant's bond, the vaHd- ity of which was disputed, advertised it for sale ; defend- ant, in a statement of the circumstances under which the bond was given, wrote : " His [plaintiff's] object is either to abstract money from the pocket of an unwary purchaser, or what is more likely, by this threat of publication to extort money from me;" held to be actionable." And held actionable to charge one with the unauthorized pub- lication of private letters ; ' or with entering into a cor- rupt agreement to benefit himself at the expense of the public, and, if elected to the Senate, would use his in- fluence to defeat the public interest and benefit himself;^ or imputing to one who is an author a disregard of justice and propriety as a man, and as being infatuated with vanity, mad with passion, and the apologist from force of sympathy of another stigmatized with ingrati- tude and perfidy, and as having published as true state- ments falsified and encomiums retracted.-* So it was held actionable to publish of one that he was "as versatile as Monroe Edwards [a noted forger] in circumventing the law of right ; " ^ or that he fraudulently deceived another as to a fact, so as to induce him to indorse a note for a larger sum than he intended ; ^ or that he was prominent in the corrupt legislation of last winter ; ^ or of one solic- iting charity that she prefers unworthy claims;^ or of one that, although aware of the death of a person occa- sioned by his improperly driving a carriage, he attended ' Robertson v. McDougall, 4 Bing. 670. ^ Bacon v. Beach, 5 N. V. Legal Observer, 448. ^ Powers V. Dubois, 17 Wend. 63. * Cooper V. Stone, 24 Wend. 434. * Cramer v. Noonan, 4 Wis. 231. ' Kerr v. Force, 3 Cranch. C. C. 8. ' Littlejohn v. Greeley, 13 Abb. Prac. Rep. 41. ** Hoare v. Silverlock, 12 Q. B. 624. § I?/'^-] I^ ACTIONABLE. 269 a public ball on the evening of the same day ; ' or of a man, that he attended a political meeting while his wife lay dead and unburied ; ' or of one who had contracted to relay a road with new material, that he had used old material; 3 and held actionable where a public officer published, in a report of an official investigation into his conduct, the following comments upon the testimony of a witness before the commissioners of inquiry : " I am extremely loath to impute to the witness, or his partner, improper motives in regard to the false accusations against me ; yet I cannot refrain from the remark that, if their motives have not been unworthy of honest men, their conduct in furnishing materials to feed the flame of calumny has been such as to merit the reprobation of every man having a particle of virtue or honor. They have both much to repent of for the groundless and base insinuations they have propagated against me."-* The defendant wrote a letter, in which, referring to plaintiff, he said : " D. keeps a well-spread table, but I always consider myself in a family hotel when my legs are under his table, for the bill is sure to come in sooner or later, though I rarely dabble in the mysteries of kai^te or any other game. Tiie fellow is as deep as Crockford and as knowing as the Marquis." This language was held libelous.5 So this language was held actionable : "As you will make considerable by being summoned to court, I will advise you to go and pay George Bowman the bal- ^ Churchill v. Hunt, i Chit. R. 480. " The People v. Atkins, 42 Vt. 252. •' Baboneau v. Farrell, 27 Eng. Law & Eq. R. 339; 15 Com. B. 360- 24 Law Jour. R. N. S. C. P. q; i Jur. N. S. 114. * Clark V. Binney, 2 Pick. 113. It was held actionable to publish : If any person can ascertain that I. D. [the plaintiff] was married previous to loth August, 1799, with an innuendo meaning that he was married prior to the date mentioned, and had another wife living, he being then married to E., his present wife. (Delaney v, Jones, 4 Esp. 191.) * Digby V. Thompson, 4 B. & Adol. 821. 18 270 WHAT WRITTEN LANGUAGE [CH. VIII. ance you owe him for his wild hogs you killed." ' In a newspaper article describing the means by which the stock of a worthless silver mine was, by a fraudulent scheme, sold for a large sum, the plaintiff was stated to have been employed to prepare the mine by plastering and engrafting silver ore on the limestone rock, while armed men guarded the entrance to the mine ; and it was also stated that the plaintiff was an expert in ])reparing a mine in this way, and that his services in this regard were as valuable as those of the person through whose influence and standing the stock of the company was sold, — held, on demurrer, that the article was actionable per se.- The declaration averred that plaintiffs were watchmakers, and that they sold watches made for them in Switzerland, and other and superior watches made in England ; that they marked the former with their firm name only, and the latter they marked with the firm name and the words, '* Chronometer makers to the Queen ; " and then alleged that defendant published of plaintiffs that the watches advertised by them were merely Swiss watches, and that plaintiffs imposed them upon the public as English, and at twice their true value. In a second count it was alleged that defendant charged plaintiffs with selling watches made in Switzerland as English watches, and thereby defrauded the public, — held that each count disclosed a cause of action.^ Where the declaration set out a letter addressed by defendant to the clerk of the board of guardians of a poor-law union, in respect of an allowance ordered by said board toward the maintenance of the mother of plaintiff and defendant, ' Adams v. Lawson, 17 Grat. 250. ^ Williams v. Godkin, 5 Daly, 499. 2 Russell V. Wilkes, 27 Up. Can. Q. B. 280. To this declaration there was a plea that plaintiffs marked their Swiss watches, " Thomas Russell & Sons, London & Liverpool," and not " Thomas Russell " only. The plea was held bad, as raising an immaterial issue. § 177^-] IS ACTIONABLE. 271 the letter stated that the plaintiff " has for years, without the slightest cause, systematically done everything she can to annoy me [defendant], and I am sorry to say my mother is only too glad to assist her. Some years ago they dragged me into chancery, and almost every term I am obliged to appear by counsel before the vice chan- cellor. They had no business to include me in the bill, as I make no claim to my late father's property. But of course it is a pleasure to my mother and Miss Fray [plaintiff] to put me to all the expense they can. Doubting as I do my mother's extreme poverty, I think the proper test of it is an order for the workhouse, the expense of which should be borne proportionately by all her children ; and as Miss Fray [plaintiff] is a lady of independence, and a single woman, and can find the money for carrying on all sorts of law proceedings, she should not be exempted," — held, on demurrer, that the declaration disclosed a cause of action.' And so where the defendant wrote and published of the plaintiff, a hotel and job coach proprietor by trade, and a Presby- terian by religion, that from mere motives of intolerance, he had refused the use of his hearse for the funeral of his deceased servant, because the body was about to be in- terred in a Roman Catholic cemetery, — held, overruling a demurrer to the declaration, that the court could not so clearly see that the language might not be actionable as to justify the withdrawal of the case from a jury.^ And as a rule the court, on demurrer, will not construe the words 7Jiitiori sensu, but will see if there is anything in the language which by a reasonable intendment is actionable.3 ' Fray v. Fray, 34 Law Jour. C. P. 45. It may interest some of our readers to know that the plaintiff, a lady, argued the demurrer in person. * Teacy v. McKenna, 4 Ir. R. Com. Law, 374. ' Mawe V. Pigott, 4 Ir. R. Com. Law, 54 ; ante, note 2, p. 193, and §§ 286, 309, 362, post. 272 WHAT WRITTEN LANGUAGE [cil. VIII. § 178. It is not actionable to charge one in writing with a breach of conventional etiquette,' or with an in- tention to put money into \Vall street for shaving pur- poses," or of having brought suit against one's mother-in- lavv,3 or that plaintiff's outward appearance is more like an assassin than an honest man." So the words, " the Rev. John Robinson and Mr. James Robinson, inhab- itants of this town, not being persons that the proprietors and annual subscribers think it proper to associate with, are excluded this room," published by posting a paper on which they were written, purporting to be a regulation of a particular society, held not to be actionable.^ It was held that to publish B. 0.,"game and rabbit destroyer, and his wife the seller of the same," was not libelous without innuendoes and colloquium showing the words charged an indictable offense, or affected plaintiff in his trade.^ So to publish of plaintiff. He is the ringleader of the nine hours' system, he ruined the place by bring- ing about that system ; not actionable, even with special damage alleged. ^ Where the language complained of ' Clay V. Roberts, 8 Law Times, N. S. 397 ; 9 Jur. N. S. 580. The charge was that plaintiff, an allopathic physician, met homoeopathists in consultation, and that, in the opinion of the profession, it was improper so to do, and against etiquette ; and further, that in the opinion of the profession, it was disgraceful for an allopath to meet a homoeopath in consultation. * Stone V. Cooper, 2 Denio, 293. ^ Cox V. Cooper, 9 Law Times, N. S. 329. Defendant published in a newspaper as a report of a proceeding in court : " C. z/. G. When this cause was called, the plaintiff was not in court, upon which A., who appeared for the defendant (the plaintiff's mother-in-law), applied for costs, which were allowed, and the case struck out." The declaration alleged that it did not appear by the proceedings in court that the defendant was plaintiff's mother-in-law, and that that fact was maliciously stated to create an unfavorable impression against plaintiff, and a suspicion of him, and that he ought to be regarded with suspicion of being guilty of something wrong in suing his mother-in-law, but held no cause of action disclosed. * Lang V. Gilbert, 4 Allen (N. Brunswick), 445. ^ Robinson v. Jermyn, i Price, 11. ' Reg. V. Yates, 12 Cox Cr. Cas. 233. ' Miller v. David, 22 Weekly Rep. 332. § 178.] IS ACTIONABLE. 273 was, ''We are requested to state that the honorary secre- tary of the Titchbourne defense fund is not, and never was, a captain in the Royal Artillery ; innuendo that plaintiff was an impostor, and fraudulently represented himself as a captain — held that the innuendoes were not warranted, and the language was not actionable/ So this language published of the plaintiff was, on demurrer, held not actionable : '' Otherwise he would never have had a Mawe [plaintiff] as his chairman, and heard him declare that men who gave up all — Hfe, liberty, and home — for what they deemed the sacred cause of old Ireland, were guilty of infamous conduct ; otherwise he never would have sat in silent approval while his chair- man declared, ' I will watch them, and will denounce them to the tender mercies of the Corydons, the Talbots, and the Barrys.'"^ "This company, for good and sufficient reasons, has resolved to dismiss M." [plaintiff], entered on the books of a corporation — held not actionable, in absence of any colloquium to give the language an in- jurious meaning.^ The declaration alleged that the defendant published in a newspaper a notice, as follows : " Walsall Science Institute. — The public are informed that Mr. M.'s [the plaintiff's] connection with the institute has closed, and that he is not authorized to receive subscriptions on its behalf." Innuendo, that plaintiff falsely pretended to be authorized to receive subscriptions on behalf of the in- stitute. At the trial it appeared that plaintiff was a cer- tificated art master, and had been master at the institute. His engagement with defendants ceased in June, 1874, and he got up and became master of another school, which was called " The Walsall Government School of ' Hunt V. Goodlake, 29 Law Times, N. S. 472. ^ Mawe V. Pigott, 4 Ir. Rep. Com. Law, 54. ^ Maynard v. Farmers' Fund Ins. Co. 47 Cal. 207. 274 WHAT WRITTEN LANGUAGE [cil. VIII. Art," and was opened in August, 1874; in September following, the notice complained of appeared — held that plaintiff was properly nonsuited, that the notice was not capable of the defamatory meaning attributed to it by the innuendo.' Where the declaration, after stating that plaintiffs, as share brokers, had bought on account of the defendant certain shares in a certain railway company,, set out the alleged libel, and which, after commencing w^ith the word " warning," proceeded to inform the plaintiffs that the shares so bought, "under false repre- sentations of the market value," and "sanctioned" by defendant, were being sent to the committee of the rail- way company, with instructions to return deposit balance to defendant ; and that, unless plaintiffs arranged to re turn such deposit money to defendant, with certain ex- penses, the defendant would adopt legal measures. " The amount will be taken by installments, on security being deposited with any bankers but those who recommended plaintiffs : " Held, that in the absence of any colloquium or innuendo explaining the meaning to be attached to the words, the publication was not libelous.^ It was held not libelous to publish of one who was a druggist, "The above druggist refusing to contribute his mite wnth his fellow merchants for watering Jefferson avenue, I have concluded to water the avenue in front of his store for one week gratis." ^ And held not actionable to publish of one that he was engaged in a " gambling fracas " arising out of a dispute at play, there being no averment that illegal play was intended.'* Where a paragraph in a newspaper merely stated that a bill had been drawn, and ' Mulligan v. Cole, Law Rep. lo Q. B. 550. Perhaps the publication was a privileged one. (See Hatch v. Lane, 105 Mass. 394 ; Halliday v. Ontario Farmers* Mut. Ins. Co. 33 Up. Can. Q. B. Rep. 558.) * Capel V. Jones, 11 Jur. 396; 4 C. B. 259. ^ The People v. Jerome, i Manning's Mich. R. 142. ^ Forbes v. King, i Dowl. 672. g 178.] IS ACTIONABLE. 275 that the acceptance had been forged or obtained by fraud, but threw no imputation on the drawer [the plaintiff], nor insinuated that the plaintiff had practiced the fraud or committed the forgery, it was held not to amount to a libel on the plaintiff/ And where it was stated that the plaintiff purchased a newspaper and gave his note for it ; that he was unable to pay the note, and begged for delay ; and that subsequently, when sued upon it, he pleaded the statute of limitations successfully ; held that, there being no charge of dishonesty, the publication was not libel- ous.^ So where the defendant published of the plaintiff that he was a " purse-proud aristocrat;" that he desired to put down the United States Bank to make stock held by him in other banks more valuable ; that he was an ofhce-holder, and that he wanted to increase his means by oppressing the farmer and mechanic ; that he attacked Mr. Webster to gratify his propensity for misrepresenta- tion, with other charges — on demurrer to the declaration, the court held that there was nothing in this language 1 Stockley v. Clement, 4 Bing. 162. - Bennett v. Williamson, 4 Sandf. 60. The author was of counsel with the plaintiff in this case, and believes the decision has never been regarded as authori- tative. The case was reversed in the Court of Appeals on another point. In Homer V. Englehardt (117 Mass. 539), it was held not actionable to publish that plaintiff, to get rid of a just claim, set up the prohibitory liquor law. In Cox v. Lee (Law Rep. 4, Ex. 284), the charge was somewhat similar to that in Bennett v. Williamson, and a verdict for the plaintiff was upheld. In that case it was held that a statement that a person was at a past time in pecuniary difficulties may be actionable, although it is also stated that these difficulties have been surmounted. In this case it was also held that to charge a man with ingratitude is actionable, and such a charge may be actionable notwithstanding the facts upon which the charge is founded are stated and they do not support the charge. So a newspaper article, the tenor of which was to make plaintiffs objects of pity, and which represented plaintiffs as the relatives of rich persons, but living in abject poverty, was held actionable. (Moffatt v. Caldwell, 6 Sup. Ct. Rep. [T. & C] 256 ; 10 Sup. Ct. Rep. [3 Hun], 26.) Where the charge was, " This Major Noah, the knight of the broken seal, who converted to his own use property known to be stolen," meaning he obtained possession of a political letter addressed to another person, which he had published, the jury failed to agree. (Noah's Case, 3 City Hall Recorder, 18.) Opening a letter and detaining it merely from curiosity or political motives, held to be a trespass only, and not a felony. (Rex V. Godfrey, 8 C. & P. 563.) 276 LANGUAGE CONXERNING [CH. VIII. "calculated seriously to degrade " plaintiff, and allowed the demurrer/ Defendant wrote of plaintiff, an attorney : " I will give you an anecdote of R. | plaintiff ], as told to me. W., who was considered an opulent farmer, and thouo-ht himself such, sent for R. to make his will, which he did, and bequeathed to his wife and family ;{," 7,500. R. attended the opening of the will. The family were pleased, when lo, and behold ! and now comes the tale. R. produces a bill for ^7,500 for business done for the last fifteen years, pounces on the property, and pos- sesses every shilling to this day. So the story has been told to me." On demurrer to the declaration, held by the majority of the court that the language was not libelous.^ § 179. There is a distinction as to its actionable quality betw^een language concerning an individual as such, and language concerning one in certain capacities or special characters. Heretofore in this chapter the attention has been solely directed to language concern- ing an individual as such ; we have now to consider what language concerning one in certain acquired capacities or special characters is actionable pa- sc. Language which is actionable, if published of an individual as such, does not cease to be actionable because published of one in a special character; and all language which is action- able as concerning an individual as such, must also be actionable when it concerns him in any special character of the kind presently to be mentioned. Our present inquiry is limited to that language which, not being ac- tionable when published of an individual as such, becomes actionable when published, and because it is published, of him in some special character or relation. The effect of the special character of the publisher, and of the ^ Tapham v. Wilson, 7 Ham. (Ohio), 190. This case cannot be regarded as an authority. '^ Reeves v. Templar, 2 Jur. 137. This case commented on in Mawe v. Pigott, 4 Ir. Rep. Com. Law, 54. g§ 1 80, 181.] SPECIAL CHARACTERS. 277 person to whom the publication is made, will be con- sidered under the head of defenses. Where the language is actionable as concerning an individual as such, it is unimportant and unnecessary, except in some cases as ■affecting the amount of damages, to inquire further w^hether such language is also actionable as concerning him in some special character ; as thus, where an action was for language alleged to be concerning the plaintiff generally and concerning him as an attorney, the language being actionable as concerning the plaintiff generally, it w^as held that he might sustain the action without proof of his being an attorney.' § 180. The distinction maintained between oral and written language, as regards its actionable quality when published concerning an individual as such, is not recog- nized in regard to language concerning one in a special character. As respects language concerning one in a special character, it makes no difference, as we suppose, in regard to its actionable quality, whether it be pub- lished orally or in writing.^ Because the language in writing which concerns one in a special character, is usually actionable when published concerning the indi- vidual as such, and without reference to his special char- acter, it is almost exclusively in respect to oral language that questions arise as to whether it is or is not actionable as affecting one in a special character. § 181. In connection with our present inquiry, it must be remembered that no special character which one may occupy can enhance his rights to protection, for that would be in derogation of the rule to which reference has ' Lewis V. Walter, 4 D. & Ry. 810 ; Harwood v. Astley, 4 B. & P. 87. - Holt on Libel, 218. But he adds, " though defamation when written may be actionable under certain circumstances when the same words if spoken would not." See in note to § 18, ante, and note i, p. 279, post, and see Weiss v. Whittemore, 28 Mich. 377. 278 WHAT LANGUAGE IS ACTIONABLE [cH. VIIL heretofore been made (§ 138). Whatever may be the special character, the right must be the same as the right of every other individual, the right that no one shall, without legal excuse, publish language concerning an- other or the affairs of another which shall occasion him damage (§§ 49, 70), that is, pecuniary loss. But although one by virtue of his special character has no right supe- rior to that of an individual as such, and w^ho does not possess any special character, yet it must be obvious that one may occupy a position in society which will render it easier to occasion him damage than to occasion dam- age to one not so situated. The position of a person may render him peculiarly obnoxious to injury. It is this special susceptibility to injury alone, that creates the distinction between the actionable quality of language when it concerns one in a special character and w^hen it concerns him only as an individual as such. It is not every special character the possession of which renders its possessor more than ordinarily susceptible to injury by language, and this being so we have to ascertain which are the special characters that have such an effect. It is not possible to particularize the special characters which entail this greater degree of liability to injury, but it may be stated generally that every legal occupation or position from which pecuniary benefit may or possibly can be de- rived, will create in the follower of such occupation, or the holder of such position, that peculiar or special sus- ceptibility to injury by language to which reference has already been made ; and hence results this rule, that lan- guage concerning one in any such lawful occupation or position may, as a necessary consequence, occasion him damage, wiiich would not have that consequence if it con- cerned him as an individual merely ; and therefore, as heretofore (§ 132) observed, language which would not be actionable if it concerned only an individual as such, § 1 82.] CONCERNING SPECIAL CHARACTERS. 279 may be actionable if it concerns him in his special char- acter.' The rule which makes language concerning one in a special character sometimes actionable, when the same language concerning one as an individual merely would not be actionable, is in reality nothing more than a phase of the rule (§ 134) that language connected with any fact affecting its meaning or effect, must be construed in connection with such fact. The language being con- nected with the fact of the special character of the person whom it concerns, must be construed in reference to such special character. § 182. Limiting ourselves for the present to occupa- tions, we conclude that subject only to the conditions (i ) that the occupation is one in which a person may lawfully be engaged, and (2) that it is an occupation which does or reasonably may yield, or may be expected to yield, pecuniary reward, there is no employment — call it busi- ness, trade, profession or office, or what you will^ — so humble or so exalted but that language which concerns the person in such his employment will be actionable, if it affects him therein in a manner that may, as a necessary consequence, or does as a natural or proximate conse- quence, prevent him deriving therefrom that pecuniary ' Brown v. Smith, 13 C. B. 596. " For the reason that from the nature of the case it is evident damage must ensue." (McMillen v. Birch, i Binn. 178.) " The law has always been very tender of the reputation of tradesmen, and therefore words spoken of them in the way of their trade will bear an action, that will not be actionable in the case of another person ; and if bare words are so, it will be stronger in the case of a public newspaper which is so diffusive." (Harman v. De- lany, 2 Str. 898.) " In case of slander of a person in the way of his trade, the fact of his being in trade stands in the place of special damage." (Williams, J., Rolin v. Steward, 14 C. B. 603.) Can a married woman in England, carrying on a trade on her separate account, sustain an action for injury to her trade by reason of language ? See dictum, Summers v. City Bank, Law Rep. 9 C. P. 583. '^ Business includes trade and more. "Trade has a more restricted meaning than business." (Harris v. Amery, Law Rep. 2 C. P. 154.) The word Business embraces everything about which a person can be employed. (Parker Mills v^ Com'rs of Taxes, 23 N. Y. 244.) 28o WHAT LANGUAGE IS ACTIONABLE [CIL MIL reward which probably he might otherwise have ob- tained.' We state the rule much broader than usual. Ordinarily it is said that the language must concern one in his business, profession, or office, and then is discussed what occupations are comprised within the terms business or profession, and what kind of office is intended. In one case ^ it was said obiter that to call a woman who taught children to read and write fa school teacher or school mistress) a whore was not actionable, because she was not in a business ox profession. For the same reason, Lord Hale, in another case, was for denying the right to recover to a letter carrier charged with breaking open letters. The tenor of his Lordship's remarks was that if such an action could be maintained, a man should not speak disparagingly of his cook or his groom but an ac- tion would be brought. 3 It was said of a renter of tolls that he was not in a business or profession in which he could be slandered or libeled,* and the like was held of a ' Foulger v. Newcomb, Law Rep. 2 Ex. 327. See 7iote 3, infra. ■^ WTiarton v. Brook, i Vent. 21. Where I. S. said to A., who kept a stable and received horses at livery (a livery-stable keeper), " Thou buyest nothing but rotten hay to poison men's horses," it was held that A. could not maintain an action there- for because he was not of any trade allowed in law. (Jones v. Joice, Vin. Abr. Act. for Words, U, a, 7.) Livery-stable keeping is recognized as a business in which one may be libeled. See Southam v. Allen,- T. Raym. 231 ; Alexander v. Angle, i Cr. & J. 143. ^ I Vent. 275. " The humility of the employment or occupation seems no objec- tion to the action, either in law or in reason." (i Starkie on Slander, 128 ; and see Cooke on Defam. 21; Terry 7". Hooper, I Lev. 115.) The courts have not one rule for one individual, and a different rule for another, or one for the rich and another for the poor. (Rex v. Ld. Cochrane, 3 Maule & S. 10; Sinclair v. Charles Phillipe, 2 B. & P. 363.) In Cockaine v. Hopkins, 2 Lev. 214, the plaintiff alleged that he used the art of buying and selling and gained great profit thereby, and that defend- ant said of him, He is a runagate, whereby he [plaintiff] lost his customers, but did not allege special damage ; after verdict for plaintiff, judgment was arrested be- cause, as the court said, runagate was not equivalent to bankrupt, and as plaintiff did not allege what trade he followed, it might be a tinker or peddler, who is a rogue by statute. This presuming that plaintiff's trade is unlawful was done in Morris v. Langdale, 2 Bos. & Pul. 284 ; but at this day the presumption would be the other way. See post, note i, p. 2S3. * Bellamy v. Burch, 16 M. & W. 590 ; and see Sellars v. Killew, 7 Dowl. & R. 121 ; 4 B. & C. 55. § 183.] CONCERNING SPECIAL CHARACTERS. 281 Stock broker.^ On the other hand, it has been held that the business need not be one which renders him who fol- lows it liable as a trader to the bankrupt law," and that the same rule applies to a mere trader or retail dealer as to a merchant.3 It was supposed formerly that the rule was limited to occupations by which the person whom the language concerned obtained his livelihood or "daily bread ; " but such a limitation, if it ever existed, no longer prevails. It is now held to be sufficient if the person whom the language concerns habitually (as distinguished from occasionally) acts in or pursues the occupation to derive an emolument from it.^ Where it was objected against the plaintiff's right to recover that it was not alleged he got his living by his occupation, the objection was overruled. 5 § 183. We mentioned in the last preceding section (§ 182) as one of the conditions to the right of action for language concerning one in his occupation, that the occu- pation must be a lawful one (§ 302). It is a universal rule, of which very numerous examples are to be found in the reports, that one engaged in an unlawful pursuit can- not recover for work done or goods sold by him, nor for any injury he may sustain in such occupation ; ^ hence ' Morris v. Langdale, 2 Bos. & Pul. 284. - Whitaker v. Bradley, 7 D. & R. 649; s. c. Whittington v. Gladwin, 5 B. & C. 180; 2 Car. & P. 146. 3 Gates V. Bowker, 8 Vt. (3 Wash.) 23 ; Ostrom -'. Calkins, 5 Wend. 264 ; Carpenter v. Dennis, 3 Sandf. 305. * Baboneau v. Farrell, 15 C. B. 360 ; Bryant v. Loxton, 11 Moore, 344 ; Davis v. Davis, I Nott & M'C. 290. " The action seems to extend to words spoken of a person in any lawful employment in which he may gain his livelihood." (i Starkie on Slander, 127). " It does not appear to be necessary that the party should gain his living in the character to which the slander is applied, but it is sufficient if he habitually act in that character and derive emolument from it. {/d. 129.) ' Dobson V. Thornistone, 3 Mod. 112. '' Timmerman v. Morrison, 14 Johns. 369 ; Allcott v. Barber, i Wend. 526 ; Smith V. Tracy, 2 Hall, 465 ; Bailey v. Mogg, 4 Denio, 60 ; Finch v. Gridley, 25 Wend. 469 ; Smith v. Wilcox, 24 N. Y. 353 ; s. c. 19 Barb. 581, and 25 Barb. 341 ; 282 WHAT LANGUAGE IS ACTIONABLE [ciL VIIL for language concerning a person in an unlawful occu])a- tion, an action is not maintainable. Thus it was held that pugilistic exhibitions being illegal, one could not maintain an action for language affecting him as proprie- tor of a tennis court where such exhibitions were made ; ' and semble one who practices as a physician without being duly licensed cannot maintain an action for language con- cerning him as a physician.^ The fact, however, that a person is engaged in an unlawful occupation is no reason for his not being allowed his action for any language con- cerning him as an individual, or concerning him in any other and lawful occupation in which he may be en- p'ao-ed.^ If the lancruafje be actionable as concerning the person as an individual merely, it is unimportant and un- necessary to inquire further whether he is in any or in what occupation, legal or otherwise." If the illegality of the occupation proceeds from the fact that the person fol- Cundell v. Dawson, 4 C. B. 476 ; Best v. Bander, 29 How. Pr. R. 489 ; Ferdon v. Cunningham, 20 Id. 154 ; Cope v. Rowland, 2 M. & W. 149 ; Smith v. Mawhood, 14 M. & W. 452 ; Johnson v. Simonton, Sup. Ct. Cal. N. Y. Transcript, 27 May, 1872 ; Seneca County B'k v. Lamb, 26 Barb. 595 ; Barton v. Port Jackson Plank Road, 17 Barb. 397; Griffith v. Wells, 3 Denio, 227 ; Bell v. Quinn, 2 Sandf. 146; Taylor v. Crowland Gas Co. 10 Ex. 293; 18 Jur. 913 ; 26 Eng. Law & Eq. R. 460; Cowan v. Milbourn, Law Rep. 2 Ex. 230; 2 Pars, on Contr. 259; Story on Contr. 620, note to § 302, post. ' Hunt V. Bell, i Bing. i. "^ March v. Davison, 9 Paige, 580, referring to a statute since repealed. ^ Yrisarri v. Clement, 2 C. & P. 223 ; 3 Bing. 432; 11 Moore, 308; Greville v. Chapman, i D. & M. 553 ; Cheney y. Goodrich, 98 Mass. 224. In Manning v. Clements, 7 Bing. 362 ; 5 M. & P. 211, the plaintiff alleged he was a manufacturer of bitters, and defendant was allowed to introduce evidence of the illegality of such manufacture (namely, that the alleged bitters were another and a prohibited article), not as a justification, but in contradiction of plaintiff's allegation. See note to§ 302, post. * Harwood v. Astley, 4 Bos. & P. 47; Lewis v. Walter, 4 D. & Ry. 810. Sander- son V. Caldwell, 45 N. Y. 398, charges the plaintiff with being a public robber — in- nuendo, he, plaintiff had defrauded the public in his dealings with them. It is not necessary for plaintiff to aver that he is any office, trade, or employment in which he could have defrauded the public. (Taylor v. Carr, 3 Up. Can. Q. B. Rep. 306.) See note to § 190. § 184.] CONCERNING SPECIAL CHARACTERS. 283 lowing it is not duly licensed, the burden is on the pub- lisher to show that the person whom the language con- cerns was unlicensed.' § 184. As to the kind of office which one must hold to render actionable language which concerns him in such office, it is laid down by Starkie, but as we conceive erroneously, that " words are equally actionable, whether the office be lucrative or merely confidential."- Pecu- niary loss is the gist of the action for slander or libel (§ 57) i ^^^ ^s no pecuniary loss can result from language concerning one in an office which yields no pecuniary emolument, words not otherwise actionable cannot be- come so, because they concern one in such an office. ^ Whatever may have been the doctrine and practice of the Court of the Star-Chamber, or of the common-law courts under the statutes scandalu^it 7nagnatum, we be- lieve that no court proceeding according to the common law, and independently of any statute, has sanctioned the doctrine as laid down by Starkie. Wherever lan- guage concerning one in an office merely honorary has in a common-law court, and independently of any stat- ' Fry V. Bennett, 28 N. Y. 324 ; Smith v. Joyce, 12 Barb. 25. See note 2, p. 291. "^ I Starkie on Slander, iig. He states that the whole class of cases in which re- covery has been had for words affecting one in office not lucrative, "seems to rest on more dubious principles than any other." At page 122 he says — erroneously as we conceive — " the danger of exclusion from office gives rise to the action." And at page 118 he says the ground of action is "somewhat different" according as the office is confidential or lucrative. And at page 124 he says, " the action appears to extend to all offices of trust or profit without limitation, provided they be of a tem- poral nz.'mxQ." This word temporal \% used as the converse of spiritual, to exclude the ecclesiastical jurisdiction. ^ Gallwey v. Marshall, 9 Ex. 294. In that action, the language (oral) imputed incontinence to a clergyman. The court, in deciding against the plaintiff, said : " We should have no doubt of the plaintiff's right to recover if the declaration had averred that he was beneficed, or was in the actual receipt of professional temporal emolument, * * as the charge would have caused the loss of the benefice or the emoluments. In the absence of any averment of plaintiff having any office of temporal (pecuniaiy) profit, we are not satisfied this action will lie. There is no authority that it will where there is no actual damage." 284 WHAT LANGUAGE IS ACTIONABLE [cil. VIIL ute, been held actionable, it will be seen that the lan- guage would have been actionable had it been published of an individual as such. § 185. Another relation or special character in which one may be injuriously affected by language, is that of partner. Language may concern partners, or one or some of several partners, in their or his individual capacity merely, or it may touch them or him in their or his partnership business. As respects language concern- ing one who is a partner, and which concerns him as an individual merely, the fact of his being a partner, unless, perhaps, as affecting the damages, has no significance. Language concerning partners in their partnership busi- ness may be actionable pej^ se, or actionable only by reason of the special damage. The language touching the business w^hich would be actionable per se if pub- lished concerning one who is not a partner, would be actionable per se as concerning partners or one who is a partner. Actionable language concerning partners, and which touches them in their partnership business, is an injury to their joint business, and is a joint and several injury, for which both may sue jointly or either ma}* sue separately (§ 303). Thus where the language imputed to two persons, who were partners as wool-staplers, that they had been guilty of fraud in a sale of wool, and they sued jointly, alleging special damage to their trade, the action was sustained.' For words charging partners with making an assignment to defraud their creditors, an action by one partner was allowed ; ^ and where the ^rm was charged with insolvency, the language used being "J. T. & Co. are down," held a joint action might be ^ Cook V. Batchelor, 3 Bos. & Pul. 150 ; see note to Goldstein v. Foss, 2 Car. & P. 252. ^ Odiorne z'. Bacon, 6 Cush. 185. § 185.] CONCERNING SPECIAL CHARACTERS. 285 maintained/ In such a joint action no damages are recoverable for the injury to the feelings of the partners." Where language concerns one only of several partners, but touches him in his partnership business, there is an injury to the partnership business, for which the partner whom the language concerns may sue alone, or all the partners may unite with him. Thus where the language was of one of several partners as bankers, and imputed to him insolvency, and for this he alone brought suit alleging damage to the partnership business, it was pleaded in abatement that the plaintiff carried on his business jointly with A. B., and that the alleged damage accrued to A. B. jointly with the plaintiff. On general demurrer the plea was overruled, but a question was raised whether a special demurrer might not have been interposed to the declaration for uniting damages which accrued to the plaintiff with damages which accrued to his partner. In other words, as the damage to the busi- ness was jointly to the plaintiff and his partner, was it proper for plaintiff to allege them in his declaration ? It was assumed that on the trial the jury would separate the damages ; ^ and in other cases, one of several partners sustained an action for libel on him in his business."* Where the language published purported to give infor- mation as to the credit and standing of a mercantile firm, and charged one member with dishonesty, a joint action by all the partners was sustain ed.^ Where the partners ^ Titus V. Follett, 2 Hill, 318 ; and see Forster v. Lawson, 3 Bing. 452 ; Le Fanu V. Malcomson, i Ho. of Lords Gas. 637; Maitland v. Goldney, 2 East, 426 ; Beards- ley V. Tappan, i Blatch. G. G. Rep. 588. See Corporations. '■^ Haythorn v. Lawson, 3 Gar. & P. 196. 3 Robinson v. Marchant, 7 Q. B. (Adol. & Ell. N. S.) 918. * Fidler v. Delavan, 20 Wend. 57 ; and see Solomon v. Medex, i Stark. Gas. 191 ; Harrison v. Bevington, 8 Gar. & P. 708 ; and Davis v. Ruff, i Gheves, 17. This last- named case is commented on in Taylor v. Church, i E. D. Smith, 2S7. " Taylor v. Church, i E. D. Smith, 279; s. c. 8 N. Y. 452. 19 286 WHAT LANGUAGE IS ACTIONABLE [CH. VIII. unite in the action, or where the partner whom the hin- guage concerns sues alone, in either case the language being of the kind called actionable per se (§^ 146, 147), the action may be maintained without any allegation or proof of special damage ; ' but where a partner whom the lano-uage does not personally concern sues alone for language personally concerning his partner, in that case the action cannot be maintained unless there be an allegation and proof of special damage. A recovery by the partner whom the language personally concerns would not bar an action by his partner, and probably would not bar a separate action by all the partners ; nor would a recovery by all the partners be a bar to a separate action by the partner whom the language per- sonally concerns." § 186. The circumstance of one being heir presump- tive has been held to give an actionable quality to lan- o-ua^e concernino: him in that character. Starkie devotes a chapter to a partial review of the cases in which, on the ground that it may cause his disinherison, it has been held actionable to call a presumptive heir bastard, and he concludes that, although such decisions carry the doctrine of presumptive loss to a great extent, they seem to be warranted by the application of sound and general principles. He does not state what those prin- ciples are, and for ourselves we can discover no principle which will support such decisions. It certainly is not a necessary consequence that one should disinherit his presumptive heir because it has been said of him that he is a bastard. § 187. One being a candidate for an office or for employment does not have the effect to make language 1 Id.; 2 Saund. PI. & Ev. 117 a, 117 b, 6th ed. ; and see Forster v. Lawson, 3 Bing. 452 ; 11 Moore, 360. •^ Taylor v.- Church, i E. D. Smith, 2S7. § 1 88.] CONCERNING SPECIAL CHARACTERS. 287 concerning him in that character actionable per se, other- wise than as it would be actionable per se if it concerned him as an individual merely.' If the language concern- ing a candidate for office or employment occasions him special damage, as the failure to obtain such office or employment, it will be actionable ; thus if a clergyman is to be presented to a benefice, and one to defeat him says to the patron : " He is a heretic, or a bastard, or excom- municated," and he thereby loses his presentment, he may have his action ; ^ and where a lawyer was a candidate for the office of steward of a corporation, and the electors being assembled to make an election, one of them said to the others : " He [said candidate] is an ignorant man and not fit for the place," by means of which he was re- fused, the court inclined to the opinion that the words were actionable, but no judgment was given.^ The fact of one being a candidate for an office or for employment, in many instances affords a license or legal excuse for publishing language concerning him as such candidate, for which publication there would be no legal excuse did he not occupy the position of such a candidate. The consideration of language concerning one as a candidate for office or for employment falls more appropriately under the head of legal excuses or defenses, and it will be there discussed. § 188. As regards the kind of language concerning one in an occupation or office which will confer a right of action, it has been said : " Words are actionable when spoken of one in an office of profit, which may probably ' Powers V. Dubois, 17 Wend. 63 ; Prinn v. Howe, i Brown's Cas. Pari. 64 • Littlejohn V. Greeley, 13 Abb. Prac. Rep. 41 ; Hunt v. Bennett, 4 E. D. Smith 647 •' 19 N. Y. 173. ' '^'' ' Davis V. Gardiner, 4 Coke, 17 a. » Sanderson v. Ruddes, Mar. 146. Words which will cause others not to vote for him of whom they were spoken, at an election at which he is a candidate, are actionable. (Brewer v. Weakley, 2 Overt. 99.) 288 WHAT LANGUAGE IS ACTIONABLE [CH. VII L occasion the loss of his office, or where spoken of persons touching their respective professions, trades, and business, and do or may probably tend to their damage." ' " If the words be of probable ill consequence to a person in a trade or profession or an office."^ Bayley, B., objected to this rule, that the words probably and probable were too indefinite, unless considered equivalent to " having a nalural tendency to," and as confined within the limits of showing the want of some necessary qualification or some misconduct in the office, it went beyond what the authorities warranted.^ But, " How is a nattiral stronger (more definite) than a probable tendency P''^^ To main- tain an action for words spoken, they must impute some matter in relation to the party's particular trade or voca- tion, and which, if true, would render him unworthy of employment.5 >* Every authority which I have been able to find either shows the want of some general requisite, as honesty, capacity, fidelity, &c., or connects the impu- tation with the plaintiff's office, trade, or business ; " ^ or his office of trust and place of honor, provided they be of a temporal nature;^ and "We ought not to extend ' De Grey, Ch. J., Onslow v. Home, 2 Wils. i86. "^ Same case, as reported 2 W. Bl. R. 753. 3 Lumby v. Allday, I Cr. & J. 301 ; i Tyrw. 217. * Williams, J., James v. Brook, 9 Q. B. 7 ; and see Sibley v. Tomlins, 4 Tyrw. 90, 5 Kinney v. Nash, 3 N. V. 1/7 ; Fowles v. Bowen, 30 N. V. 24. « Bayley, B., Lumby v. Allday, I Cr. & J. 301 ; I Tywr. 217 ; approved Ayre v. Craven, 2 Adol. & El. 2 ; 2 Nev. & M. 220 ; and see Jones v. Littler, 7 M. & W. 433 ; Southee v. Denny, i Ex. 196 ; James v. Brooke, 9 Q. B. 7. ■> How V. Prinn, Holt, 652 ; s. c. Prinn v. Howe, I Brown's Gas. Pari. 64; I Starkie on Slander, 124. " A distinction is usually taken between an office of profit and an office of honor, but the distinction is not a sound one, and though it may apply to an action for words, it does not extend to an action for libel." If a person be in ark office of profit, it is libelous to impute to him either inability, want of integrity, or anything which amounts to it. But if the office be an office of honor, it is said no action lies except the import of the words be a charge of dishonesty. In either case, charging a man with inclinations and principles which show him unfit for an office of trust or honor is libelous, without charging him with any act. Any imputations against a person who is in the enjoyment of an office, either public or private, of § 1 88.] CONCERNING SPECIAL CHARACTERS. 289 the limits of actions of this nature beyond those laid down by our predecessors." ' Although every lawful lucrative occupation is, as regards the actionable quality of language, governed by the same general principles, yet the kind of occupation affects the application of the prin- ciples, and the identical language which may be not action- able as concerning one in some certain occupation, may be actionable as concerning one in some other occupation. The test in every case by which to decide if the language be actionable, meaning actionable /rr se, is, does it neces- sarily occasion damage ? and because the language which may necessarily occasion damage in one occupation will not have that effect in some other, it happens that in every case regard must be had to the character of the occupation. Numerous illustrations of this are to be found in the subsequent part of this chapter. We select one instance : In the case of a merchant, the keep- ing of account books is or is considered to be a requisite to the successful prosecution of his business, and there- fore to charge one who is a merchant with keeping false books has been held to be actionable," but the like charge concerning a farmer was held not actionable, because the keeping of books was not considered requisite to the con- duct of his business, although in addition to his business of farmer he sawed logs for reward and dealt in lumber.^ honor, profit, or trust, which import a charge of unfitness to administer the duty of the ofhce, are libelous. (Holt on Libel, 208.) Words which charge a breach of a public trust are actionable. (See Kinney v. Nash, 3 N. Y. 178 ; Taylor v. Carr, 3 Up. Can. Q. B. Rep. 306.) ' Pollock, Ch. B., Gallwey v. Marshall, 9 Ex. 294. ^ Backus V. Richardson, 5 Johns. 476. And the like charge against a blacksmith held actionable. (Burtch v. Nickerson, 17 Johns. 217; and see Crawfoot v. Dale, Vent. 263 ; and Viner's Abr. Act. for Words, U, a, 22,) ' Rathbun v. Emigh, 6 Wend. 407. Where the defendant said of the plaintiff, a mercer, " He hath deceived in a reckoning, and his debt-book which he keepeth is a false debt-book," judgment went against the plaintiff, because the book might be kept by the plaintiff's ser\'ant, and he, plaintiff, not have knowledge of it. (Brook's Case, Godb. 231.) In Backus v. Richardson (5 Johns. 476); the court said the words 200 WHAT LANGUAGE IS ACTIONABLE [CH. VIII. § 189. One of the essential elements of the actionable quality of languap^e concerning one in his occupation or office, is the fact that the person whom the language con- cerns is in such occupation or office (§ 181); it neces- sarily follows that to render language concerning one in his occupation or office actionable per se, the person whom the language concerns must follow such occupa- tion or hold such office at the time the language is pub- lished. No language concerning one in any special character, published after he has ceased to occupy that character, can be actionable as concerning him in such special character. The general rule is that in an action for language concerning one in a special character, it must be shown that he maintained that special character at the time the language was published (§ 386).' Where the plaintiff had been commissioner to make a treaty with the Indians, and after his commission had termi- nated, the defendant charged him orally with hiring and bribing the Indians to sign such treaty, held that no action could be maintained." Where plaintiff was twice constable, once in 1843 and again in 1846, and during " You keep false books," implied knowledge in plaintiff; and in Todd v. Hastings (Vent. 117), it was held that to charge a trader with keeping ''false books" would be construed to mean "false ^^/^^books." Keeping books of account is necessary in this country, where credit is generally given, as well by the mechanic as by the mer- chant and professional man. (Burtch v. Nickerson, 17 Johns. 217.) Mechanics " generally sell on credit, and their success and reputation depend upon their char- acter for fair dealing." (Rathbun v. Emigh, 6 Wend. 407.) Another reason why a charge of keeping false books of account was held actionable was, that such books, if generally reputed correct, were receivable as evidence of their contents. (Crawfoot r. Dale, Vent. 263.) ' Smayles v. Smith, Brownl. i ; Reignald's Case, Cro. Car. 563 ; Jordan v. Lyster, Cro. Eliz. 273 ; Dotter v. Ford, Id. 794 ; Bellamy v. Burch, 16 M. & W. 590; Allen V. Hillman, 12 Pick. loi ; Forward v. Adams, 7 Wend. 204; Windsor v. Oliver, 41 Ga. 538; Dicken v. Shepard, 22 Md. 399; Oram v. Franklin, 5 Blackf. 42; Harris V. Bailey, 8 N. Hamp. 216. See 2 Vent. 366, where it is said, " Where a man had been in an office of trust, to say he behaved himself corruptly in it, as it imported great scandal, so it might prevent his coming into that or the like office again." (See § 2(p, post.) * Forward v. Adams, 7 Wend. 204. § iSq.] concerning special characters. 291 the latter period one said of him orally that, while consta- ble in 1843, he had made a false return, held that the words would not support an action/ If a man has been a mer- chant and leaves off merchandising for a time, and another calls him bankrupt, an action lies ; for though he does not use the trade of a merchant at the time of the speaking the words, yet he remains a vicrchant, and may resume the trade at his pleasure;^ but where the plaintiff alleged he had for many years used the trade of a drover, but without alleging he was a drover at the time of the publication, it was held he did not show a cause of action. ^ Whether or not the plaintiff occupied the special character alleged, and whether or not he con- tinued in such special character until the time of the publication complained against, are questions of fact. A person shown once to have been in any certain office, pro- fession, or trade, is presumed to continue therein.-^ The decisions which are sometimes referred to as exceptions to the rule that the person whom the language concerns must maintain his special character at the time the language is published, are really not exceptions to that ' Edwards v. Howell, 10 Ired. 211. But it was said plaintiff might have recov- ered on proof of special damage. '■^ Gardyner v. Hopwood, cited Yelv. 159; and see Vin. Abr. Act. for Words, U, a, 19. An attorney who has not taken out his annual certificate, although he is by statute disabled from recovering his fees, nevertheless continues an attorney, and may main- tain an action for language concerning him as an attorney. (Jones v. Stevens, 11 Price, 235 ; Pearce v. Whale, 5 B. & C. 38 ; Morris v. Langdale, 2 Bos. & P. 284 ; see § 183, ante^ * Collis V. Malin, Cro. Car. 282 ; Gray v. Metcalfe, Yelv. 21. ^ Tuthil V. Milton, Yelv. 158 ; Collis v. Malin, Cro. Car. 2S2 ; Jordan v. Lyster, Cro. Eliz. 273 ; Moore v. Synne, 2 Rolle R. 84 ; Dod v. Robinson, All. 63 ; Forward V. Adams, 7 Wend. 204; Bellamy v. Burch, 16 M. & W. 590 ; Fry v. Bennett, 28 N. Y. 324; but see McLeod v. Murphy, 3 Car. & P. 31T. Where a plaintiff avers generally that he filled any office, or exercised any trade, his filling such office or being of such trade is sufficiently proved by evidence of his having acted in such office or carried on such trade. And in the case of all peace officers, justices of the peace, constables, &c., it is sufficient to prove that they acted in those characters, without proving their appointments. (Berryman v. Wise, 4 T. R. 366 ; Gordon's Case, Leach, 581; Rex v. Shelly, Leach, 5S1, ;;.) 292 WHAT LANGUAGE IS ACTIONABLE [ciL VII I. rule ; they are cases which follow another and different rule because comprehended in a different class. On ex- amination they w^ill be found to ranc^e thcmselv^es under the division relating to language concerning an individual as such ; and the true ground on which in such cases the actions were sustained, was of the language being action- able as affecting the individual as such, without regard to his having occupied the special character to which the language refers. Thus where one had been senator, and after his term of office had ceased it was published of him in writing that he had been guilty of corrupt con- duct in his office of senator, the action was sustained;^ and so where one had been a constable, and after he quitted that office it was said of him that, while in office, he was a healer of felons, or of one that, when in office as a justice, he was a bribing justice.^ § 190. To render language concerning one in a special character or relation actionable, " it must touch him" in that special character or relation ; for, unless it does, it must be judged in regard to its actionable quality by the rules which apply to language concerning an individual as such. That the language " must touch " the person whom it concerns in his special character, means only that it must concern him in such special character, and affect him therein. It is not sufficient that the language disparages him generally, or that his general reputation is thereby affected ; ^ it must be such ' Cramer v. Riggs, 17 Wend. 209 ; and see 7 Wend. 204; Wilson v. Noonan, 23 Wis. 105; Littlejohn v. Greeley, 13 Abb. Prac. Rep. 41; Walden v. Mitchell, 2 Vent. 266. - Pridham v. Tucker, Yelv. 153 ; and see Herle v. Osgood, i Vent. 50. To say of a commissioner appointed to take testimony, he hath taken bribes (Moor v. Foster, Cro. Jac. 65), and charging an officer of a court of record with taking bribes, held actionable. (Anon. Dal. 43 ; Lee v. Swan, Yelv. 142.) ^ Sanderson v. Caldwell, 45 N. Y. 39S. This implies, of course, that the lan- guage is not such as would be actionable if published of one individually. Lan- guage actionable of an individual is not now the subject of consideration. (See § 179, ante.) § 190.] CONCERNING SPFXIAL CHARACTERS. 293 as, if true, would disqualify him or render him less fit properly to fulfill the duties incident to the special char- acter he has assumed. It is not enough that the lan- guage "tends to injure the person in his office, profession or trade, it must be spoken [published] of him in his official or business character." ' It must " touch him in his office, profession, or trade." ^ Thus, saying of a justice of the peace, "There is a combined company here to cheat strangers, and Squire Van Tassel has a hand in it. I don't seeWhy he did not tell me the execution had not been returned in time, so that I could sue the con- stable ; "3 or, " Squire Oakley is a damned rogue," ' was ' Van Tassel v. Capron, i Denio, 250 ; Sibley v. Tompkins, 4 Tyrw. 90 ; Doyley V. Roberts, 3 Bing. N. C. 835 ; Redway v. Gray, 31 Vt. (2 Shaw), 292 ; Buck v. Hersey, 31 Maine (i Red.) 558 ; Sayres tj. Bachelor, 7 Ir. Jur. O. S. 257 ; McDougall v. Tyr- rell, I Ir. Jur. N. S. 465. It seems, however, that where one is in business, words spoken of him in his private character will bear an action, if they are such as must necessarily affect him in his business ; thus to say of a brewer, he had been locked up in a sponging-house (a private jail kept by deputy sheriffs, where persons arrested for debt, on paying for the indulgence, have the option of remaining instead of going to the debtor's prison), was held actionable, because the words were held nec- essarily to affect his credit as a trader. (Jones v. Littler, 7 M. & W. 423 ; and see Bell V. Thatcher, Freem. 277 ; Fowles v. Bowen, 30 N. Y. 23 ; Starr v. Gardner, 6 Up. Can. Q. B. R. O. S. 512 ; Taylor v. Carr, 3 Up. Can. Q. B. R. 306.) So in Davis V. Ruff (i Cheves, 17), it is said that words affecting the pecuniary credit of a merchant need not be averred nor proved to have been used in relation to his occu- pation as a merchant, for, in their nature, they strike at the root of mercantile char- acter. - Kinney v. Nash, 3 N. Y. 177 ; Van Tassel v. Capron, i Denio, 250; Comyn's Dig. Act. for Defam. D, 27 ; Van Epps v. Jones, 50 Ga. 238. Whether words were spoken of a man in certain capacity, is a question of fact for the juiy. (Skmner v. Grant, 12 Vt. 456 ; Sibley v. Tomlins, 4 Tyrw. 90 ; Doyley v. Roberts, 3 Bing. N. C. 835; Tomlinson v. Brittlebank, i Har. & W. 573.) 3 Van Tassel v. Capron, i Denio, 250. * Oakley v. Farrington, i Johns. Cas. 129 ; and held not actionable to say of a justice: " He is a logger-headed, a slouch-headed, and a bursen-bellied hound" (i Keb. 629) ; or : " If he is a justice he is a rogue" (Rex v. Pocock, 2 Stra. 1158); but these words of a justice of the peace : " G. perjured himself in deciding the case against me contrary to all law and evidence, &c. It is the damnedest erroneous decision I ever saw any justice give ; it was a damned outrage, and was done in spite," held to impute a violation of plaintiff's judicial oath, and to be actionable J>erse. (Gove v. Blethan, 21 Minn. 80.) Calling one who is a cooper " varlet and knave " is not actionable — the words do not touch him in his trade. (Coles v. Kettle, 294 WHAT LANGUAGE IS ACTION A liLL [cil. VI II. held to impute misconduct as a man and not as a magis- trate, and not to be actionable. For a like reason it was held not actionable to say of one who kept a public garden, "He is a desperate man, a dangerous man. 1 am afraid to go to his house alone ; I am afraid of my life ; " ' and these words of a pork butcher, " Who stole F.'s pigs? You did, you thief; you poisoned them with mustard and brimstone," were, after verdict, held not to have any necessary connection with his trade, and were not calculated to injure him in it, and therefore not ac- tionable.^ So these words, " He is a regular prover under bankruptcies," published of a livery-stable keeper, held not to affect him in his business.^ The words, " He has defrauded his creditors, and been horse-whipped off the course at D.," spoken of an attorney, but not in his char- acter of an attorney, held not actionable.'* And the same decision was made in reference to these words spoken of an attorney : "I have taken out a judge's order to tax A.'s bill ; I \y\\\ bring him to book, and have him struck off the roll." ^ " I will take him to Bow street on a charge of forgeiy." ^ And saying of a livery-stable Cro. Jac. 204.) So saying of a land speculator, " lie cheated me out of lOO acres of land," held not to touch him in his trade, and not actionable. (Fellowes v. Hunter, 20 Up. Can. Q. B. R. 382.) But the words : " Vou are a deceitful rascal, villain, and liar ; I would not trust you with an auctioneer's license. Vou robbed a man you called your friend, and not satisfied with ;^lo, you robbed him of ;^20 a fortnight ago," spoken of an auctioneer, held actionable. (Ramsdale z: Greenacre, I Fos. & F. 61.) ' Ireland v. McGar\ish, i Sandf. 155. * Sibley f. Tomlins, 4 Tyrw. 90. The jury found that the words were not in- tended to impute felony. ^ Angle V. Alexander, 7 Bing. 123. •* Doyley v. Roberts, 3 Bing. N. C. 835. * Phillips V. Jansen, 2 Esp. Cas. 624. A charge against an attorney of having altered a promissory note, with an innuendo that plaintiff was guilty of disreputable practice, was, on demurrer, held actionable. (Warton v. Searing, i Vict. Law Rep. 122.) The court added, it was very difficult since statute 28 Vict, to sustain a de- murrer to a declaration. ' Harrison v. King, 4 Price, 46 ; 7 Taunt. 431. § I90.] CONCERNING SPECIAL CHARACTERS. 295 keeper, " You are a regular prover under bankruptcy ; you are a regular bankrupt maker ; if it was not for some of your neighbors, your shop would look queer," was held not to be a charge in the way of his trade, nor ac- tionable/ Where words imputing incontinency, and not in themselves actionable, were spoken of one in respect of his situation as clerk in a gas company, held that not imputing any misconduct in his capacity of clerk, they were not actionable.^ A charge against the plaintiff, laid to be spoken of him in his trade of a staymaker, of criminal intercourse with a female employed by him in his trade, held not to affect him in his trade, and not ac- tionable.3 And so it was held that a charge of adulteiy against a physician did not necessarily touch him in his profession, and was not actionable without its being shown that the charge was connected with the plaintiff's profession ; " and the same was held of these words of a physician ; " He is so steady drunk he cannot get busi- ness any more ; " ^ or, " he is a two-penny bleeder ; " ^ or, "he gave my child too much mercury;" or, "he made up the medicines wrong through jealousy, because I would not allow him to use his own judgment." ' Say- ing of a woman who gained her livelihood by teaching girls to dance, " She is as much a man as I a m; she got ' Alexander v. Angle, i Cr. & J. I43 ; i Tyrw. 9. ' Lumby V. Allday, i Cr. & J. 301 ; i Tyrw. 217. The words were : " You are a fellow, a disgrace to the town, unfit to hold your situation for your conduct with whores." 3 Brayne v. Cooper, 5 M. cSi W. 249. 4 Ayre v. Craven, 2 Adol. & El. 2 ; 4 Nev. & M. 229. In Parrett v. Carpenter (Noy 64), it was held not actionable /^ri.- to charge a clergyman with adultery; but that case it was said in Gallwey v. Marshall (9 Ex. 294), has been overruled; and saying of a clergyman that he had two wives was held actionable. (Nicholson v. Lyne, Cro.Eliz.94; see § 195, A'-^M Charge of drunkenness against a minister (ante, p. 259, note 3). ^ Anon. I Ham. 83, note. « Foster v. Small, 3 Whart. 138. ' Edsall V. Russell, 4 M. & G. 1090. 296 WHAT LANGUAGE IS ArTloN'Arur |( II. VIII. I. S. with child ; she is an hermaphrodite^ was held not actionable, no special damage being ])roperly alleged, and because girls are taught to dance as frequently by men as by w^omen.' It was held actionable to call a school- mistress a dirty slut;' or with being insane,^ or to charge bv writing a school-teacher with making a false report to the school visitors, and with general untruthfulness,^ or with w^ant of chastity.^ It was held actionable to say of a shop-keeper, he had nothing but rotten goods in his shop ; ^ or to charge in writing that the place of business of a trader (a coach-builder) was not respectable ; ' or, that a ship of which the plaintiff was owner and master, and which he had advertised for a voyage to the East Indies, was not seaworthy, and that Jews had bought her to take out convicts.^ Saying of an innkeeper, " You have stolen goods in your house, and you know it," held not actionable.^ ' Weatherhead v. Armitage, 2 Lev. 233. In Malone v. Stewart (15 Ohio, 319), it was held actionable to call a married woman an hermaphrodite. - Wilson V. Runyon, W^right, 651. ' Morgan v. Lingen, 8 Law Times, N. S. 800. See ante, fiote 10, p. 266 ; tioL- 2, p. 267. ^ Lindley v. Horton, 27 Conn. 58. '" Bodwell V. Osgood, 3 Pick. 379. ' Bennett v. Wells, 12 Mod. 420 ; see §§ 204, 205, post. ' Barrett v. Long, 3 Ho. Lords Cas. 395. ' Ingram v. Lawson, 6 Bing. N. C. 2I2 ; 8 So. 775. The words were held to be more than a libel on the ship, and to constitute a libel on the plaintiff in his trade, for which he might recover without proof of malice or special damage. Defendant having published concerning an article manufactured by plaintiffs (" The bag of bags,") that its name was " very silly, very slangy, and very vulgar," and that " it has been forced upon the notice of the public ad nausea?n ; " this was charged as a libel on plaintiff's in their business, and as the manufacturers and sellers of said arti- cle. On demurrer to the declaration, held by Mellor and Hannen, JJ., that whether or not there was an imputation upon the plaintiffs was for the jury, and overruled the demurrer ; held by Lush, J., that the demurrer was well taken, and that there was no cause of action disclosed by the declaration. (Jenner v. A'Beckett, 25 Law Times, N. S. 464.) ' Patterson v. Collins, 11 Up. Can. Q. B. 63 ; and see a?itd, note 7, p. 252. 5J 191.] CONCERNING SPECIAL CHARACTERS. 29/ § 191. In those trades or professions in which, ordi- narily, credit is essential to their successful prosecution, there language is actionable per se which imputes to one in any such trade or profession, a want of credit or re- sponsibility or insolvency, past, present, or future ; ' as, to say of a tradesman, He is not able to pay his debts ; or. He owes more than he is worth ; ^ he will break shortly/ He is a pitiful fellow and a rogue ; he compounded his debts at <^s. in the pound/ He is indebted to me, and if he does not come and make terms with me, I will make a bankrupt of him and ruin him.^ He is a bankrupt ' Seycroft v. Dunker, Cro. Car. 31?; Harrison v. Thornborough, 10 Mod. 11 ; Southam V. Allen, T. Raym. 231; Sewall v. Catlin, 3 Wend. 291 ; Read v. Hudson, I Ld. Raym. 610 ; Ostrom v. Calkins, 5 Wend. 263 ; Davis v. Lewis, 7 T. R. 17 ; Dobson V. Thornistone, 3 Mod. 112; Chapman v. Lamphire, 3 Mod. 155 ; Mott v. Comstock, 7 Cow. 654; Whitaker v. Bradley, 7 D. & R. 649 ; s. c. Whittington v, Gladwin, 5 B. & C. 180; 2 C. & P. 146 ; Lewis v. Hawley, 2 Day, 495 ; Anon. Lofft, 322 ; Hull V. Smith, i M. & S. 287 ; Else v. Ferris, Anthon, 23 ; Brown v. Smith, 20 Eng. L. & Eq. R. 243 ; I3 C. B. 596 ; 22 Law Jour. R. N. S. C. P. 151 ; i? Jur. 807 ; I Com. Law Rep. 49; Jones v. Littler, 7 M. ^ W. 423 ; Carpenter v. Dennis, 3 Sandf. 305 ; Phillips v. Hoeffer, I Penn. St. Rep. 62 ; Prettyman v. Shockley, 4 Harring. 112; Griffiths v. Lewis, 15 Law Jour. Q. B. 249. Defendant published a periodical which, among other things, contained a heading, " Dissolutions of partner- ship," also aheading, " Meetings of creditors under bankrupt act." Under each head- ing was a list intended to be the one of the names of firms dissolved, and the other of the names of bankrupts as to whose estates meetings were to be held. The plaintiff's firm had been dissolved, and the name of the firm, by mistake, was put in the list under the head of " Meetings of creditors, "-held actionable. (Shepherd v. Whit- aker, Law Rep. 10 C. P. 502.) 2 Vin. Abr. Act. for Words, U, a, 11, 12, 13, 20, 21, and to publish in writing concerning one engaged in business in which credit was essential, " Had to hold over a few days for the accommodation of L." [plaintiff]. (Lewis v. Chapman, 19 Barb. 252; s. c. 16 N. Y. 369 ; and see Robinson v. Marchant, 7 Q- B. 918 ; Marzetti v. Williams, i B. & A. 41 5-) » Hill's Case, Lat. 114; Dobson v. Thornistone, 3 Mod. 112. He is off, of a merchant, actionable without an innuendo. (Black v. Holmes, i Fox & Sm. 28.) 4 Spoken of a pawnbroker, and special damage alleged. (Stanton v. Smith, 2 Ld. Raym. 1480.) This case was questioned (3 Bing. N. C. 840), but sustained. (Jones V. Littler, 7 M. & W. 423.) ^ Brown v. Smith, 13 C. B. 596 ; i Com. Law Rep. 49 i 22 Law Jour. Rep. N. S. C. P. 151 ; 20 Eng. Law & Eq. R. 243. « Spoken of a grazier. (Anon, i Bulst. 40.) Of a dyer. (Squire v. Johns, Cro. Jac. 558.) Of a shoemaker, who bought and sold leather. (Stanley v. Osbaston, Cro. Eliz. 268 ; and see Vin. Abr. Act. for Words, U, a, 18, 19, 35, 36. 38> I' «) 298 WHAT LANGUAGE IS ACTfONABLK | ( II. Vlll. He was a bankrupt/ He is a bankrupt, and unable to pay his just debts.^ The sheriff will sell him out one of these days, and claims against him not sued will be lost.' He must fail ; his time is come.'^ He is not worth a penny and will run away.^ He will be a bankrupt.' He is next door to breaking.^ He is broken and run away, and will never return.' I heard he was run away.^ I have heard of no failures, but understand there is trouble with S.'° Two dyers are gone off, and for aught I know, H. will be so too, within this time twelve months." H. will lose his debt ; M. [plaintiff] is unable to pay if^ 1 Hull V. Smith, i M. & S. 287. ' Spoken of a drover, whose business was to purchase droves of cattle and drive them to market and sell them. (Lewis v. Hawley, 2 Day, 495-) An innkeeper is a trader. (Ombony v. Jones, 19 N. Y. 241.) The words, "You have been a pauper ever since you have lived in the parish ; you are now a pauper. I have paid ;{;20 a year towards your maintenance ; you will be in the bankrupt list in less than twelve months," spoken of an innkeeper, held actionable. (Whittington v. Gladwin. 5 B. & C. 180; 2 Car. & P. 146; s. c. Whitaker v. Bradley, 7 D. & R. 649.) So it is ac- tionable to say of an innkeeper, He is broke, and there is neither entertainment for man nor horse. (Southam v. Allen, T. Raym. 231.) 3 Spoken of a farmer. (Phillips v. Hoeffer, I Penn. St. Rep. 62.) ■» Spoken of a distiller, the course of whose business was to purchase grain on credit. (Ostrom v. Calkins, 5 Wend. 263.) 5 Anon. Lofft, 322. He is about to run away and defraud his creditors. (Pret- tyman f, Shockley, 4 Harring. 112.) 6 In three days. (Thompson v. Twenge, 2 Rolle R. 423.) Or in six months. (Else V. Ferris, Anlhon N. P. 23.) He will be bankrupt, without saying when, said not to be actionable. (Vin. Abr. Act. for Words, O, a.) •" Spoken of a laceman (a dealer in lace). (Read v. Hudson, i Ld. Raym. 610.) 8 Spoken of a carpenter. (Chapman v. Lamphire, 3 Mod. 155.) And spoken of a farmer. (Dobson v. Thornistone, 3 Mod. 112.) To say of a merchant, he is broke, is actionable. (Seycroft v. Dunker, Cro. Car. 317.) 9 Spoken of a tailor. (Davis v. Lewis, 7 Term R. 17.) Spoken of a carpenter. (3 Mod. 312.) i» Spoken of a merchant. (Sewall v. Catlin, 3 Wend. 291.) To say of a banker, he suspended payment, is actionable. {^Dictum in Forster v. Lawson, 3 Bing. 452.) " Harrison v. Thornborough, 10 Mod. 11. 1-2 Spoken of a merchant. (Mott v. Comstock, 7 Cow. 654.) It was held not actionable to say to a creditor of a merchant [the plaintiff], You were best to call for it [your money] in, and take heed how you trust him. (Vin. Abr. Act. for Words, U, a, 17.) § IQ--] CONCERNING SPECIAL CHARACTERS. 299 He came a broken merchant from Hamburgh.' All is not well with V. ; there are many merchants who have lately failed, and I expect no otherwise of V.- There is no bottom to you. I would put you through, but you won't stand ; you will burst or fail before I have a chance.3 Thou art a beggarly fellow, and not worth a groat.* They have been sued ; report says J. B.'s wife [J. B. being one of the plaintiffs] is about to apply for a divorce, and that J. B. has put his property out of his hands ; if so, their store will be closed soon.^ Where the defendant said of plaintiff, a tradesman, in his shop and in the presence of his customers, that certain whole- sale dealers had closed their accounts with him, and were going to shut him up (innuendo that plaintiff was in- solvent or likely to be so) ; held, it was for the jury to say whether the words had the meaning ascribed to them in the declaration, and if so, they were actionable.^ So, actionable to say of a trader that his checks were dis- honored.7 But held not actionable to say of traders, " look out sharp to get your bills met by them." ^ § 192. Language of one in his trade or profession is actionable per se when it imputes to him fraud, want of ' Seycroft v. Dunker, Cro. Car. 317. ^ Vivian's Case, 3 Salk. 326. ^ Spoken of one engaged in buying and selling woodenware. (Carpenter v, Dennis, 3 Sandf. 305.) ^ Simpson v. Barlow, 12 Mod. 591. * Beardsley v. Tappan, I Blatchf. Cir. Ct. R. 588. * Gostling V. Brooks, 2 Fos. & F. 76. ' Rolin V. Steward, 14 C. B. 595 ; and see ante in note, p. 62. Words in relation to the credit of a shareholder in the joint stock of a boat, held actionable, special damage being shown, and there being a colloquium respecting plaintiff as such stockholder, and that it was a business requiring credit. (Turner v. Foxall, 2 Cr. C. C. 324.) ^ Daines v. Hartley, 3 Ex. 200. Do you see that man ? beware of him, he has given me a good deal of trouble. These words, spoken of a stock broker, and laid with an innuendo meaning that plaintiff was unworthy of trust, were held not actionable. (Moorhead v. Brown, 4 Wyatt, Webb & A'Beckett, 142.) U)0 WHAT LANGUAfil-: IS ACTION A I'.l.i: [(II. VIII. integrity, or misconduct in the line of his business or profession " whereby he gains his bread." ' Thus it was held actionable to say of a weaver, He is a rogue and villain, and taketh the goods of his customers and pawn- eth them, and he is not a man to be trusted ; -' of an auc- tioneer and appraiser. He is a damned rascal, and has cheated me out of ^^loo on the valuation ; ^ of a trader. He was guilty of dishonestly using old materials insteiul of new in doing a certain piece of work ;•• of a corn-factor, Vou arc a rogue and a swindling rascal ; you delivered me one hundred bushels of oats worse by six pence a bushel than I bargained for;^ of a lime-burner. He is a cheating knave ; ^ of a bailiff, Vou did cozen your master of a bushel of barley, or, he hath deceived his master by ' Baboneau v. Farrell, 15 C. B. 360 ; Bryant 7-. Loxton, 11 Moore, 344 ; Davis V. Davis, I Nott & McCord, 290 ; Chipman v. Cook, 2 Tyler. 456 ; Rush v. Caven- augh, 2 Barr, 187 ; Brown v. Minis, 2 Rep. Con. Ct. 235 ; Foot v. Brown, 8 Johns. 64 ; Riggs V. Denniston, 3 Johns. Cas. 198 ; Thomas z'. Jackson, 3 Bing. 104 ; 10 Moore, 425 ; Odiorne v. Bacon, 6 Cush. 1S5 ; Gay v. Homer, 13 Pick. 535 ; Ludwell r. Hole, 2 Ld. Raym. 1417 ; Davis v. Miller, 2 Strange, I1C9 ; Obaugh v. Finn, 4 Pike, no ;' Boydell v. Jones, 4 M. & W^ 446 ; 7 Dowl. P. C. 210: Sempsey v. Levy. 2 Tur.'776; Vin. Abr. Act. for Words, U, a, 25, 26. "Any charge of dishonesty "against an individual in connection with his business, whereby his character in such business may be injuriously affected, is actionable." (Fowles v. Bowen, 30 N. V. 24.) " Thou hast received money of the king to buy new saddles, and hast cozened the king and bought old saddles," actionable. (Greenfield's Case, Mar. 82 ; I Vin. Abr. 465, pi. 19.) Defendant published in a newspaper concerning plaintiff, a boarding-house keeper: " 6 East 34th street.— Boarding. Applicants before locating here, inform yourselves as to table, attention, and characteristics of proprietors. " There wa^ no inducement nor allegation of special damage, and held not actionable. (Wallace v. Bennett, Superior Ct. N. V. Feb. 1877.) •^ Vin. Abr. Act. for Words, U, a, 4. To say of a house painter, He is the greatest blackguard in Melbourne, and is not fit to be intrusted in any house, held actionable. (Harris v. Pritchard, Melbourne Argus Rep. 29th June, 1857.) ' Bryant v. Loxton, 11 Moore, 344. 4 Baboneau v. Farrell, i Jur. N. S. 114; I5 C. B. 360; 24 Law Jour. R. N. S. 9 C. P. ; 28 Eng. Law & Eq. R. 339. 5 Thomas v. Jackson, 3 Bing. 104; 10 Moore, 425. And to charge a merchant with being a swindler is actionable. (Herr v. Bamberg, 10 How. Pr. R. 12S.) So of a bank director. (Forrest v. Hanson, i Cranch Cir. C. Rep. 63 ; note 9, p. 264, and note 2, p. 265, anfe.) ^ Terry z: Hooper, I Ld. Raym. 87 ; i Lev. 115. § 192.] CONCERNING SPECIAL CHARACTERS. 3OI buying and selling ;' of a butcher, that he used false weights ; ' of a shipmaster, that he sold the consignment and pocketed the proceeds ; ^ of a jeweler, He is a cozen- ing knave in selling me a sapphire for a diamond ; "* of a goldsmith, He sold me a chain of copper for gold ; of one who sold chamois skins, He will cozen you and sell you lamb skins instead of chamois skins ; of a brewer, that he makes or sells unwholesome beer ; of a trades- man, that he adulterates the article in which he deals ; of one who took children to board, that he starved a child intrusted to his care ;5 of a shipmaster, " he sold the con- signment of the ship Rising Sun, and pocketed the money." ^ Both the plaintiff and defendant carried on. the business of tailors. Plaintiff, in company with A., went to defendant's store to purchase material with which to make trowsers for A. Defendant said to A., Don't have anything to do with that man [plaintiff], he will rob you, he is a rogue. Defendant also asked A. to allow him [defendant] to make the trowsers. On the trial, the judge directed the jury that the words were ac- tionable if spoken of the plaintiff in the way of his trade, and the jury having found for the plaintiff, the verdict ' Vin. Abr. Act. for Words, U, fl, 5 ; and note 10, p. 240, anfe. ^ Griffiths V. Lewis, 15 Law Jour. 249, Q. B. ; and see Prior v. Wilson, i C. B. N. S. 95. The way in which Messrs. P. (the plaintiffs) do things at Guildford — in- serting the wedge — innuendo inserting a wedge to falsify the weight. 3 Orr V. Skofield, 56 Me. 4S3. * Vin. Abr. Act. for Words, I, a, 9, and several cases there referred to. ^ Vin. Abr. Act. for Words, U, a, 27, 28, 29, 30, 31; Freem. 25. Charging a brewer with filthy and disgusting practices in preparing his malt, is actionable. (White V. Delavan, 17 Wend. 49; Ryckman v. Delavan, 25 Wend. 186. See Wood zf. Brown, i C. Marsh. 522 ; 6 Taunt. 169.) In that case, a declaration which alleged that defendant published of plaintiff, a brewer, that his beer was of a bad quality and sold by deficient measure, was held bad on general demurrer, because the words were not set out in hac verba, but it was merely alleged that the defendant published \soxA% purporting that plaintiff, &c. « Orr V. Skofield, 56 Me. 483. 20 302 WHAT LANGUAGE IS ACTIONABLE [CU. VIIT. was sustained in dajic' And actionable to charge the agent of a stage company, that he [plaintiff] and B., his sub-agent, had altered way-bills and books to screen the plaintiff [innuendo charging forgery], and that plaintiff and B. were together to cheat the company, and they would cheat them out of more than the company can make." Actionable to charge, by writing, a steamboat ao-ent with being an impertinent person and withholding newspapers intrusted to him for the defendants.^ And it was held actionable to publish orally of a land surveyor, who surveyed by mathematics, as distinguished from one who measured with a pole, He is a cozening and shift- ins- and a cheatinor knave ; and it was said that the same words of a shoemaker, a butcher, or a baker, would not be actionable, because the goodness or deceit of their wares may be discerned by the eye, but deceit in land measuring could be discovered only by persons skilled in the art ; * but not actionable to say of a w^orkman. He has received forty days' wages for work that might have been done in ten days, and is a rogue for his pains ; ^ nor to say of a smith, Thou art a cozening rogue, and in one tire of wheels wiiich thou didst send to J. S., thou didst cozen him of a noble ; for the words import he cozened in the price only, and not in the ill-making of the wheels. And for saying of men in trade who sell things, that they cozen in the price, is no disgrace, for every trader cozens in the price when he sells for more than the thing is worth.^ Actionable to publish orally of a merchant's 1 Sloman v. Chisholm, 22 Up. Can. Q. B. 20. - Gay TJ, Homer, 13 Pick. 535. 5 Keemle v. Sass, 12 Miss. 499. The language, being published in writing, was actionable as concerning the plaintiff as an individual merely. * Blunden v. Eustace, Cro. Jac. 504 ; London v. Eastgate, 2 Rolle R. 72. 5 Lancaster v. French, 2 Stra. 797. ^ Vin. Abr. Act. for W^ords, S, a, 24. Thou didst cozen a woman of her goods, held not actionable. (Engurst v. Browne, Cro. Eliz. 99.) And held not actionable § 192.] CONCERNING SPECIAL CHARACTERS. 303 clerk, that he [plaintiff] had become such a notorious liar that he [defendant] could place no confidence in him ; that he had strong reason to doubt his honesty, and had written S. to employ an officer to watch him.' Actiona- ble to publish orally of a merchant that he is a villain, a rascal, and a cheater.^ And the following words spoken of the plaintiff as clerk of the firm of defendant and his partner, " Your man [plaintiff] is plotting to blow me [defendant] and the concern [said firm] up," were held actionable.^ So it has been held actionable to publish orally of an attorney, He is a forging rogue,* a cheat,^ a damned rascal ; ^ he will play on both sides, or he deals on both sides,' a bribing knave, and has taken twenty pounds of you to cozen me ; ^ he is not a man of integ- rity, and is not to be trusted ; he will take a fee on both sides ; 9 he is a cheater, I will have him barred of his prac- tice ; '° he deserv^es to be struck off the roll ; " he is a false knave, a cozening knave, and has gotten all that he has by cozenage ; he has cozened all those that have dealt with him ; he arresteth without taking out writs ; he is a knave in his practice ; '^ he offered himself as a witness to to say of an innkeeper, He is a caterpillar, and lives by robbing his guests. Robbing not construed feloniously. (Vin. Abr. Act. for Words, U, a, 34; ante, § 144, subd. z.) ' Fowles V. Bowen, 30 N. Y. 20 ; and see Brown v. Orvis, 6 How. Pr. R. 378 Where the words affect one as merchant's clerk, special damage need not be alleged. {Butler V. Howes, 7 Cal. 87.) '^ Nelson v. Borchenius, 52 111. 236. ^ Ware v. Clownoy, 24 Ala. 707. * Anon. I Comyn R. 262. * Rush V. Cavenaugh, 2 Barr, 187. * Brown v. Mims, 2 Rep. Conn. Ct. 235. '' Brown v. Hook, Brownl. 5 ; Vin. Abr. Act. for Words, S, c, 2, 4 ; Shire v. King, Yelv. 32 ; s. c. King v. Shore, Cro. Eliz. 914. 8 Yardley v. Ellis, Hobart, 8, 9; i Rolle R. 53. ' Chipman v. Cook, 2 Tyler, 456. '" Taylor v. Starkey, Cro. Car. 192. " Dictum, Phillips v. Jansen, 2 Esp. 624. ^2 Jenkins v. Smith, Cro. Jac. 586 ; Bell v. Thatcher, Freeman, 277. 304 WHAT LANGUAGE IS ACTIONABLE [cil. VIII. divulge the secrets of his clients ; ' he is a rogue for tak- ing your money, and has done nothing for it ; he has not entered an appearance for you ; he is no attorney at law, he don't care to appear before a judge ; what signifies going to him, he is only an attorney's clerk and a rogue, he is no attorney." Is M. your attorney? "' * He will overthrow your cause.^ I marvel you will employ such a knave as Nicholls, you will have but disgrace by it ; he is a proclaimed knave ;* he is the falsest knave in England ; ^ he is a base rogue, and maintains his family by his knavery ;^ he is an extortioner, and cozened A. in a bill of costs ; ^ he keepeth many markets and stirreth up men to suits, and promises if he do not recover in their cause he will take no charges, and he once promised me that if he did not recover in a cause he would take no charges of me, yet he afterwards took charges of me ;^ he deserves to have his ears nailed to the pillory.^ Thou art a paltry fellow ; thy credit is fallen, for thou dealest on both sides, and dost deceive many that trust thee."^ He suppressed a will ; " he is a -cozener, and hath cozened me of tw^enty shillings." He is a cozener, and cozened his clients, and for that cause was discharged the court.'^ He is a base, cheating, cozening knave, and hath cheated ' Riggs V. Denniston, 3 Johns. Gas. 198. 2 Hardwick v. Chandler, 2 Str. 1138. ^ Martyn v. Burlings, Cro. Eliz. 589; Golds. 12S. * Webb V. Nicholls, Cro. Car. 459. ' Anon. F. Moore, 61 ; Dal. 63. ^ Shaw V. W' akeman, Vin. Abr. Act. for Words, S, a, 2. ' Stanley v. Boswel, Cro. Eliz. 603. ^ Smith V. Andrews, Sty. 183. ' Jenkinson v. Wray, F. Moore, 401. '" Shire v. King, Yelv. 32; s. c. King z: Shore, Cro. Eliz. 914. ^^ Godfrey v. Owen, Palm. 21. '^ Litman v. West, Het. 123. '^ Mead v. Perkins, Cro. Car. 261. § 1 93-] CONCERNING SPECIAL CHARACTERS. 305 me as never any man was cheated.' He took, corruptly, five marks of B. T., being against his own client, for put- ting- off an assize ap:ainst him.^ Thou art a common bar- rator, a Judas, a promoter.^ He sets people together by the ears, and we shall have him indicted for a common barrator.'* You are a knave ; you were attorney for my mother against my husband, and set her on to sue him, and made him spend ;^i,ooo, and such knaves as you are have made my husband spend almost all his estate. ^ And actionable to say of a counsellor, " He will deceive you ; he revealed the secrets of my cause." ^ It is action- able to publish in writing of an attorney employed to defend a prisoner, that on the trial he sent important witnesses away without the knowledge of his client or of counsel;^ or that he has been reprimanded for sharp practice.^ " I was so incensed with that girl [plaintiff] for coming to hire with me, after having had a miscar- riage at Mrs. B.'s house, and she afterwards to give the girl a good discharge." These words spoken of a domestic servant, held actionable per se."^ § 193. Language of one in a business or profession, which imputes to him ignorance generally in his business or profession, or such ignorance or other incapacity as unfits him for its proper exercise, is actionable ; '° as to ' Jeffryes v. Payhem, Cro. Car. 510. ^ Smayles v. Smith, Brownl. i. ■^ Taylor v. Starkey, Cro. Car. 192. < Annison v. Blofield, Carth. 848. ^ Hilton V. Playters, All. 13. * Snag V. Gray, March's Sland. 63. ' ' Sanford v. Bennett, 24 N. Y. 20. * Boydell v. Jones, 4 M. & W, 446. Held not actionable to say orally of an at- torney, " He is a paltry lawyer" (Rich v. Holt, Cro. Jac. 267) ; but actionable to say orally, " He is a pettifogging, blood-sucking attorney." (Armstrong v. Jordan, Carlisle Assizes, 1826.) ' Connors v. Justice, 13 Ir. C. L. R. 451 ; 7 Ir. Jur. N. S. 319. '" Jones V. Powell, i Mod. 272 ; Peard v. Jones, Cro. Car. 382; Camo w. Martin, 23 Conn. 86 ; Day v. Buller, 3 Wils. 59 ; Garr v. Selden, 6 Barb. 416. 306 WHAT LANGUAGE IS ACTIONABLE [cH. VIII. say of a physician or an apothecary, " It is a world of blood he has to answer for in this town through his ignorance ; he did kill a woman and two children. He was the death of J. P. ; he killed his patient with physic ;"' or, "Dr. A. killed my children ; he gave them teaspoon doses of calomel, and it killed them. " •^* * They died right off the same day;"^ or, "He has killed the child by giving it too much calomel ; " ^ or, " He has killed six children in one year ; " "^ or, " He is a drunken fool and an ass, he never was a scholar ; " ^ or, " I wonder you had him to attend you ; do you know him ? He is not an apothecary ; he has not passed any examination ; he is a bad character, none of the medical men here will meet him ; several have died that he has" attended, and there have been inquests held upon them ;"^ or, "He killed my. child, it was the saline injection that did it ;" ^ or, "He is an cmpirick and a mountebank;"^ or, "a quack;" 5 or, " He is a quack, and if he shows you a ' Tutty V. Alewin, il Mod. 221 ; and see note 2, p. 239, ante. ^ Secor V. Harris, 18 Barb, 425. 3 Johnson v. Robertson, 8 Porter, 486 ; see dictum March v. Davison, 8 Paige, 5 So. To charge a physician with having killed a patient with physic, held not ac- tionable. (Poe V. Mondford, Cro. Eliz. 620.) " In my opinion, the bitters that A. [plaintiff, a physician] fixed for B. [his patient] were the cause of his death," held not actionable ; but the words, " The bitters that Dr. J. [plaintiff] gave John Smith caused his death; there was poison enough in them to kill ten men," held actionable. (Jones V. Diver, 22 Ind. 184.) * Carroll v. "White, 33 Barb. 615. '' Cawdrey v. Tetley, Godb. 441. * Southee v. Denny, i Ex. 196; 17 Law Jour. R. 151, Ex. Alleging that a physi- cian is not entitled to practice, as not being duly licensed, may be actionable. See Collins V. Carnegie, 3 Nev. & M. 703 ; i Ad. & El. 695. And charging a physician with being guilty of conduct derogatory to the character of a gentleman and of a medical man, held actionable. (Bailey v. Abercrombie, 3 Menzies' R. N. S. 33.) ' The words impute manslaughter. (Edsall v. Russell, 4 M. & G. 1090.) * Vin. Abr. Act. for Words, S, a, 12. Publishing in writing of a barrister that he was a quack lawyer and a mountebank and an impostor, is actionable. (Wakley V. Healey, 7 C. B. 591.) ' Pickford v. Gutch, Dorchester Assizes, 1787 ; White v. Carroll, 42 N. Y. 161. § 1 93-] CONCERNING SPECIAL CHARACTERS. 307 diploma it is a forgery ; " ' or, " His treatment of a patient was rascally ; " ^ and so it has been held actionable to say of a midwife : " Many have perished for want of her skill " (?; c, for her want of skill).^ " She is an ignorant woman, and of small practice, and very unfortunate in her way ; there are few she goes to but lie desperately ill, or die under her hands." ^ " She is no midwife but a nurse, and if I had not pulled her from Mrs. J. S., she had killed her and her child." ^ " She lays no woman, but Dr. Chamberlayn or his lady does her work." ^ And it has been held actionable to say of a school-master : " Put not your son to him, for he will come away as very a dunce as he went." ^ "He has no knowledge in grammar or in the Latin tongue, nor knows how to educate his scholars in the Latin tongue," with an allegation of loss of scholars. ^ So it has been held actionable to say of an attorney : " He hath no more law than Mr. C.'s bull or than agoose;"^ "He cannot read a declaration ;" '° " What, does he pretend to be a lawyer ? He is no more a lawyer than the devil ; " " or of a barrister, " He is a dunce, and will get little by law, he was never but ac- counted a dunce ;"'^ or of a shoemaker, that he is "a ' Moises v. Thornton, 8 Term R. 303. " He is no doctor, he bought his diploma for fifty dollars." These words of a doctor held actionable J>er se. (Bergold v. Puchta, 2 Sup. Ct. R. [T. & C] 532.) ' Camp V. Martin, 23 Conn. 86. ^ Flower's Case, Cro. Car. 211. * Wharton v. Brook, Vent. 21 ; Wharton v. Clover, 2 Keb. 489. ' Whitehead v. Fownes, Freem. 277. ' Gyles V. Bishop, Freem. 27S. ' Het. 71. * London v. Eastgate, 2 RoUe's R. 72. ' Baker v. Morfue, i Sid. 327. '" Powell V. Jones, 2 Keb. 710; i Mod. 272, It implies ignorance, not a defect of sight. '' Day V. Buller, 3 Wils. 59. ''^ Peard v. Jones, Cro. Car. 382. J 08 WHAT LANGUAGE IS ACTIONABLE [CIL VIII. cobbler ; " ' or of a watchmaker, that " he knows not how to make a good watch." ^ Actionable to say of a mason, " He is no mechanic, he cannot make a good wall, or do a good job of plastering, he is no workman, he is a botch ; " 3 and actionable to wTite of an optician, he is " a licensed hawker and a quack in spectacle secrets." ^ § 194. It is not actionable to charge one in a busi- ness or profession with want of skill or ignorance in a particular transaction. ^ Thus it was held not to be ac- tionable to say of an attorney in a particular suit, "He knows nothing about the suit ; he will lead you on until he has undone you." ^ It is said, how^ever, that it is actionable to charge ignorance or unskillfulness, if it amounts to gross ignorance or unskillfulness.^ This seems only another mode of imputing such ignorance as unfits the person for the proper exercise of his art, or with misconduct therein. § 195. It was held actionable to publish ora/fy of a minister of the gospel, that he preaches lies in the pulpit ; ^ he made a seditious sermon,^ he hath two ^ I Mod. 19; Vin. Abr. Act. for Words, U, a, 16. '^ Redman v. Pyne, i Mod. ig; but to say of a watchmaker, he is a bungler, and knows not how to make a good piece of work, would be actionable, {/d.) Where A., the author of a work, sold the copyright to the defendant, who afterwards pub- lished a new edition as edited by A., containing mistakes and errors, held, if this was calculated to injure A.'s reputation as an author, he might maintain an action. (Archbold v. Sweet, 5 C. & P. 219; i M. & Rob. 162.) 3 Fitzgerald v. Redfield, 51 Barb. 484; 36 How. Pr. R. 97. * Keyzor v. Newcomb, i Fost. & F. 559. ^ Garr v. Selden, 6 Barb. 416 ; Camp z'. Martin, 23 Conn. 86 ; Southee v. Denny, I Ex. 196. " Foot 7'. Brown, 8 Johns. 64. ' Secor V. Harris, 18 Barb. 425 ; and Sumner v. Utley, 7 Conn. 257 ; Johnson 7>. Robertson, 8 Port. 486 ; Camp v. Martin, 23 Conn. 86. Saying of a school-master, he is a habitual drunkard, would be actionable. (Brandrick 7>. Johnson, i Vict. Law Rep. 306.) * Drake 7: Drake, Sty. 363 ; and see Cranden 7-'. Walden, 3 Lev. 17 ; Bishop of Norwich v. Pricket, Cro. Eliz. i ; Dod z'. Robinson, Aleyn, 63 ; and Gallwey z'. Mar- shall, 9 Ex. 294. ^ Phillips 7'. Badly, 4 Coke, 19 a. § I95-] CONCERNING SPECIAL CHARACTERS. 3O9 wives/ he is a drunkard,^ or incontinent/ or guilty of incest/ or he has a bastard,^ or he is a perjured priest.^ The fol- lowing words were held not actionable, spoken of one who was a minister at the time of the publication, and who had been a draper in partnership with H. P., and who had a controversy with H. P. as to the partnership accounts : " I do not go by reports, I go by a knowledge of facts. Mr. H. [the plaintiff] is a rogue, and I can prove him to be so by the books at S. He pretends to say he has been as good as a father to H. P., when m fact he has been robbing him. He has cheated P. of /2,ooo. I will so expose him that he will not be able to hold up his head in T. pulpit. * ^ * I wonder how any respectable person can countenance such a man by their presence. I have been advising some persons to go to the Wesleyan chapel as they would hear plain honest men."^ So the following words spoken of a clergyman were held not actionable : " Dr. P. [plaintiff] placed before me a bill, I signed it ; I do not know for ' Nicholson v. Lynes, Cro. Eliz. 94. 2 McMillan v. Birch, i Binn. 178 ; Chaddock v. Briggs, 13 Mass. 248 ; contra, see Buck z>. Hersey, 31 Maine (i Red.) 558 ; O'Hanlon v. Myers, 10 Rich. Law (So. Car.) 128. In Dod v. Robinson (Aleyn, 63), the words were : " You are a drunkard, a whoremaster, a common swearer and a common liar, and you have preached false doctrine, and deserve to be degraded." These words were held actionable. 3 Demarest v. Haring, 6 Cow. 76. It seems that in England to render such a charge actionable, the person affected must be beneficed, or in the actual receipt of professional emolument as a preacher, lecturer, or the like. (Gallwey v. Marshall, 9 Ex. 294; and see tiote 5, p. 255, anfe.) Saying of a Methodist minister that he kept company with whores, held not actionable without special damage. (Breeze v. Sails, 23 Up. Can. Q. B. R. 94.) * Spoken of a paid preacher or lay exhorter of the Methodist church. (Starr v. Gardner, 6 Up. Can. Q. B. R. 0. S. 512.) 6 Special damage being alleged. (Payne v. Beuwmorris,i Lev. 248.) He is a lewd adulterer, and hath two children by the wife of O. S., spoken of a clergyman, held not actionable. (Barrett v. Carpenter, Noy, 64; and ante, note 4, p. 295.) And so of the words. You are an old rogue, rascal, and contemptible fellow. (Musgrove v. Bovey, Stra. 946.) ^ Hogg V. Vaughan, Sty. 6. " Hopwood V. Thorn, 8 C. B. 293. 3IO WHAT LANGUAGE IS ACTIONABLE [ciL VIIL what amount it was, for I was completely pigeoned by Dr. P." [plaintiff.]' In the same case the following words spoken of a clergyman, held to touch him in his professional character, and to be actionable : " The very day I came into residence. Dr. P. [plaintiff] sent for me ; I went and dined with him, and the wine must have been drugged, for I took but two glasses and was quite stupefied. While in this condition Dr. P. put a bill into my hands, and requested me to sign it, saying, C, just put your name to this ; I wish to have it as security for the payment of ;^ 130 per annum for reading for you. I an- swered, Give me a pen and I will sign it. Immediately I had signed it, Dr. P. snatched it up and said. This will be quite safe. The bill, I think, was drawn for ^^2,500, but having been stupefied with the wnne, I do not rightly remember. You cannot suppose I can meet a man who so cheated me at my first coming ? " It is actionable to charge a Protestant archbishop with having sought, by means of a bribe, to induce a Romish priest to abandon his religious creed.^ It was held not actionable to charge a Roman Catholic priest with having imposed certain penance, there being nothing to show that enjoining such penance affected his character as such priest.^ To pub- lish in writing of a clergyman that he came to the per- formance of divine service in a towering passion, ■* or that he desecrated a portion of the church by turning it into a cooking apartment,^ held actionable. ' Pemberton v. Colls, lo Q. B. 461 ; 16 Law Jour. Q. B. 403. To charge a bishop with being a wicked man (Thomas v. Hughes, 2 Mod. 159), or a bankrupt, said to be actionable (Holt on Libel, 233, note); and held actionable to publish in writing that the plaintiff, a clergyman, had caused a misunderstanding in his congregation by personal invectives from the pulpit against a young lady of spotless reputation. (Edwards v. Bell, 8 Moore, 467.) ' Tuam V. Robeson, 5 Bing. 17 ; 2 M. & P. 32. " Heame v. Stowell, 12 Adol. & El. 7ig. ' Walker v. Brogden, 19 C. B. N. S. 65. ^ Kelly V. Sherlock, Law Rep. i Q. B. 686. Held not actionable to say of a minister of thegospel, He is a free negro. (McDowell v. Bowles, 8 Jones' Law [N. Car.] 184.) § 196.] CONCERNING SPECIAL CHARACTERS. 3II § 196. As regards language concerning one in an office, the same general principles apply as to language concerning one in trade. Language concerning one in office which imputes to him a want of integrity or mis- feasance in his office, or a want of capacity generally to fulfill the duties of his office, or which is calculated to diminish public confidence in him,' or charges him with a breach of some public trust, is actionable.^ But as in the case of one in trade, the language to be actionable must touch him in his office.^ To charge a judge with erring in judgment or disregarding public sentiment, or with any impropriety which would not furnish a cause of impeachment, is not actionable perse; but to charge that he had " abandoned the common principles of truth," or " lacked capacity as a judge," or made the office of clerk of his court a subject of private negotiation, is actionable per se^ So it is actionable per se to charge that a judge improperly put his official signature to the jurat of a paper in the form of an affidavit,^ or procured one to take a false oath,^ or took a bribe,^ or acted un- justly in his office,^ or to charge that he is lewd or false,^ ' Lansing v. CaqDcnter, 9 Wis. 540. ' Kinney v. Nash, 3 N. Y. 177, and authorities there referred to. ^ McGuire v. Blair, 2 Law Reporter, 443, and ante, § 190. So that charging a justice with misfeasance in trying a cause not within his jurisdiction, was held not actionable as not affecting him as a justice. (Oram v. Franklin, 5 Blackf. 42; see, however, Carter v. Andrews, 16 Pick, i ; Stone v. Clark, 21 Id. 51.) * Robbins v. Treadway, 2 J. J. Marsh. 540. ' Dollaway v. Turrell, 26 Wend. 383 ; 17 Id. 426. * Chetwind v. Meeston, Cro. Jac. 308. ' Marriner v. Cotton, F. Moore, 695. In Lindsay v. Smith, 7 Johns. 360, an ac- tion was sustained for the words, "Lindsey had been feed by Abner Wood, and I could do nothing when the magistrate was in that way against me." ^ I have often been with him for justice, but could never get any at his hands but injustice. (Isham v. York, Cro. Car. 14.) Actionable to say of a judge, his sentence was corruptly given. (See Chaddock zk Briggs, 13 Mass. 253; Chipman v. Cook, 2 Tyler, 456.) ' Wright V. Moorhouse, Cro. Eliz. 358. 312 WHAT LANGUAGE IS ACTIONABLE [ciI. VIII. or corrupt,' or partial,' or half cared, and will hear but one side, or that he cannot hear of one ear,^ or that he perverted justice,'^ or made use of his office to worry one out of his estate,^ or, He is forsworn and not fit to sit upon a bench,^ or, He did seek my life and offered ten shillings to the under-sheriff to impanel a jury that might find me guilty. ^ But held not actionable to publish orally of a justice. He is a blood-sucker and seeketh after blood ; if a man will give him a couple of capons he will take them ;^ or, You robbed the poor and are worse than a highwayman.^ It is not actionable to say of a mayor, He is a rogue and rascal ; '° or of an alderman. When he puts on his gown Satan enters it ; " or of an under-sheriff. Thou didst serve an execution and keep in thy hands the money collected." But it is actionable to charge a sheriff with malpractice in his office ; '^ or to say of a constable, ^ Csesar v. Curseny, Cro. Eliz. 305. You are a rascal, a villain, and a liar, spoken of a magistrate in the execution of his office, the words import a charge of corrup- tion. (Aston V. Blagrave, i Strange, 617 ; 2 Ld. Raym. 1369.) And so of the term rogue. (Kent v. Pocock, 2 Str. 1168.) '^ Kemp V. Housgoe, Cro. Jac. go. ^ Masham v. Bridges. Cro. Car. 223, and Alleston v. Moor, Het. 167. •* De la Ware v. Pavvlet, F. Moore, 409. ' Newton v. Stubbs, 3 Mod. 71. •^ Cam V. Osgood, i Lev. 280; s. c. as Kerle v. Osgood, i Vent. 50; and see Pepper v. Gay, 2 Lutw. 1288 ; Stutley v. Bulhead, 4 Coke, 16 a, ig a y Lassels v. Lassels, F.Moore, 401 ; Hollis v. Briscow, Cro. Jac. 58 ; Burton v. Tokin, Cro. Jac. 143 ; Beamond v. Hastings, Cro. Jac. 240. " Bleverhassett v. Baspoole, Cro. Eliz. 313. ® Hilliard v. Constable, F. Moore, 418. Held actionable to publish in writing of a justice, that he had been chairman of a finance committee, and had audited accounts containing items nominally to furnish lodgings for the judges, but in reality for the accommodation of the magistrates ; innuendo that plaintiff had conducted himself corruptly in his office of justice. (Adams v. Meredew, 3 Y. & J. 219, overruling s. C. 2 Y. & J. 417. This case was, it is said, carried to the House of Lords.) ^ Palmer v. Edwards, Rep. of Cas. of Prac. in C. B. 160. '" Reg. V. Langley, 6 Mod. 125 ; 2 Salk. 697. " 2 Starkie on Slander, 314. '■^ Geeve v. Copshil, Cro. Eliz, S54. '•' Dole f. Van Rensselaer, i Johns. Cas. 330. § 196.] CONCERNING SPECIAL CHARACTERS. 313 He is not worthy of his office, for he and his company the last time he was constable stole five of my swine and eat them ; ' or to publish in writing of a police officer that he had been guilty of blackmailing, and had been dismissed for that cause.^ But held not actionable to publish orally of a police ofihcer, " I saw a letter respect- ing an officer of the L. police, w^ho had been guilty of conduct unfit for publication," there being no allegation of special damage and the charge not being connected with his official character.^ It is actionable to publish orally of the director of a public company, that he had sold the property of the company and pocketed the money j-^ or of a town clerk acting as moderator of a town meeting, that he had fraudulently destroyed a vote ; 5 or of an administrator, that he had been guilty of fraud in the appraisement of the estate of the dece- dent ;^ or of a juror, that he agreed with another juror to determine the amount of damages to be given in a certain cause in which he acted as juror, by the result of a game of draughts/ A churchwarden holds a temporal office, and to charge him with cheating the parish, is actionable.^ ' Taylor v. How, Cro. Eliz. 861. Doubtful if actionable to say of a constable, Thou art a cozening knave, and hast cozened the parish in rates to ^30. (Thomas' Case, Het. 36.) ■^ Edsall V. Brooks, 17 Abb. Pr. R. 221; 2 Robertson, 29. ^ James v. Brook, 9 Q. B. 7; 16 Law Jour. Q. B. 17; 10 Jur. 541. * Johnson v. Shields, i Dutcher, 116. * Dodds V. Henry, 9 Mason, 262. * Beck V. Stitzel, 21 Penn. St. R. (9 Harris), 522. ' Commonwealth v. Wright, i Cush. 46. The charge was in writing. Held ac- tionable to publish orally of a juryman, Thou art a common juryman, and hast been the overthrow of one hundred men by thy false means. (Vin. Abr. Act. for Words, F, a, 23.) ^ Townsend v. Barker, Sty. 394 ; Woodruff v. Wooley, Curt, i ; Strode v. Holmes, Sty. 33S ; and see Hutton v. Beech, Cro. Jac. 339 ; Hopton v. Baker, 2 Bulst. 218; Willis V. Shepherd, Cro. Jac. 619. To say of a churchwarden he di- verted himself on Sunday, when he ought to have been in the house of God, held actionable as charging a breach of his duty as churchwarden. (Moore v. Bloxam, Ir. Term Rep. 91.) 314 WHAT LANGUAGE IS ACTIONABLE [cil. VIH. It is actionable to publish in writing of a court commis- sioner, that he will act in his judicial office according to the views of the persons " whose tool and toady he is, and that the past would warrant the depriving him of his office ; " ' of an overseer, that when out of office he advo- cated low rates, and that he [defendant] would not trust him [plaintiff] with £c^ of his private property ; ^ or of an overseer, that he had been guilty of illiberal and illegal practices towards paupers, in compelling them to procure goods from a particular person, and threatening him with the penalties of the act against such practices ; ^ or of a postmaster, who resided in the house used as the post office, that the house in which the post office is kept is of such a low character that a decent lady dare not enter.'* And actionable to publish orally of a postmaster that he opened a letter, took money out of it, and appropriated it to his own use, and kept and embezzled letters ; ^ or that he would rob the mail for five hundred dollars — yes, he would rob the mail for five dollars.^ It is not actionable to charge a member of Parliament with want of sincerity ; ^ or a member of the Legislature, in reference to the future discharge of his functions, with being a corrupt old tory.* ' Lansing v. Carpenter, 9 Wis. 540. "^ The jur)' found that the words imputed dishonesty. (Cheese v. Scales, 10 M. & W. 44S.) ^ Woodard v. Dowsing, 2 M. & Ry. 74. •* Johnson v. Stebbins, 5 Ind. (Porter), 364. 5 Hays V. Allen, 3 Blackf. 408. See contra, McCuen v. Ludlam, 2 Harrison, 12, and notes i, p. 254, and 2, p. 275, ante, and Taylor v. Kneeland, i Doug. 67. * Craig V. Brown, 5 Blackf. 44. ' Onslow V. Home, 2 W. Black. R. 750 ; 3 Wils. 177. The words complained of were : " As to instructing our members to obtain redress, I am totally against that plan ; for as to instructing Mr. Onslow [the plaintiff], we might as well instruct the winds, and should he [the plaintiff] ever promise his assistance, I should not expect him to give it us." One of the reasons for holding the words not actionable was, they did not charge the plaintiff with any breach of his duty, his oath, or any crime or misdemeanor whereby he had suffered any temporal loss, in future office, or in any way whatever. ^ Hogg V. Dorrah, 2 Port. 212. § I97-] CONCERNING SPECIAL CHARACTERS. 315 It is actionable to publish in writing of a member of Con- gress, " He is a fawning sycophant, a misrepresentative in Congress, and a groveling office-seeker ; he has abandoned his post in Congress in pursuit of an office ; " ' or of a lieutenant-governor, that he was in a beastly state of in- toxication while in the discharge of his duty in the Senate, and was an object of loathing and disgust ; ^ or a com- missioner of bankrupts, with being a misanthropist, and violent partisan, stripping unfortunate debtors of every cent, and then depriving them of the benefit of the act.^ In an action by G., a United States collector, for slan- der, the declaration charged these words : " G. has not ac- counted to the department for the sum paid by W. by some $32,000." " In the settlement of the funds of W., amounting to many hundreds of thousands of dollars, the amount paid by them was $157,224; only $125,224 was accounted for, of which $62,612 was credited to the gov- ernment, leaving the same amount ($62,612) divided be- tween the collector, the naval officer, and the surveyor ; it is not known what has been done with the balance, amounting to the large sum of $32,000, and it is under- stood that this settlement was made through the inter- ventions of S. and his partner, the late deputy collector ; it is discreditable to the government to have it generally known that the sum of $157,224 was paid by W. in a set- tlement with the government, and that $32,000 of that sum was not accounted for." No words alleging a failure to pay on demand were charged. The innuendoes averred the imputation of embezzlement and of receiving a bribe. Held, that the words were not actionable.* § 197. We have already directed attention to the dis- ' Thomas v. Croswell, 7 Johns. 264 ; and see Wilson v. Noonan, 23 Wis. 105. * Root V. King, 7 Cow. 613 ; 4 Wend. 113. ^ Riggs V. Denniston, 3 Johns. Cas. 198. '^ Goodrich v. Hooper, 97 Mass. i. l6 WHAT LANGUAGE IS ACTIONABLE [ciL VIII. tinction between patently and latently wrongful acts, and to the rule of law that the necessary and natural and proximate consequences of an act are those alone for which the actor is responsible (§ 6i) ; and we have pointed out the difference between language being ac- tionable per se and actionable only by reason of special damage (§ 146). So far, this chapter has been solely devoted to language actionable per sc ; we have now to consider what language co7icerning a person is actionable, because, and only because, its publication has occasioned special damage. " Undoubtedly all words are actionable if a special damage follows." ' "Any words are action- able by which the party has a special damage."' "To make words actionable, they must be such that special damao-e may be the fair and natural result of them." ^ "There must be some limit to liability for words not actionable per se, both as to the words and the kind of damages, and the clear and wise one has been fixed by law." 4 The limitation is, that special damage must ensue. But what is meant by special damage ? Special damage is a term ambiguously employed ; properly, it connotes the natural and proximate but not necessary consequences of a wrongful act ; ^ but it is frequently used to indicate ' Heath, J., Moore v. Meagher, i Taunt. 39 ; and see, among other cases, Wilby V. Elston, 13 Jur. 706; 8 C. B. 142 ; 7 Dowl. & L. 143 ; Barnes v. Trundy, 31 Maine (i Red.) 321 ; McCuen v. Ludlam, 2 Harrison, 12 ; Bentley v. Reynolds, i McMuUan, 16. Acts (words) may be harmless in themselves, so long as they injure no one, but the consequences of acts (words) often give character to the acts (words) themselves. (Van Pelt v. McGraw, 4 N. Y. 113.) - Comyn's Dig. Act. for Defam. D, 30. 2 Taunton, J., Kelly r. Partington, 3 Nev. & M. 116 ; 5 B. & Adol. 645. 4 Strong, J., Terwilliger v. Wands, 17 N. Y. 61. ' Such damages as are the natural, although not the necessary result of the in- jury, are termed special damages. (Vanderslice v. Newton, 4 N. Y. 132.) The special damage must be the immediate, not the remote consequence of the publica- tion. (Beach v. Ranney, 2 Hill, 309 ; Sewall v. Catlin, 3 Wend. 291.) " The dam- age must be the natural and proximate consequence of the wrongful act complained of." (2 Smith's Lead. Gas. 534, 6th ed.) "I have always understood that the § 197.] WITH SPECIAL DAMAGE. 317 any or all loss which, not being a necessary consequence, is the subject of other proof than the mere commission of the act complained of, and without regard to whether such loss is or is not a natural or natural and proximate consequence of such act. The term is employed in the latter sense when it is said that language which occasions special damage is not actionable unless it be defamatory,' which is equivalent to saying, that language which, as a natural and proximate consequence, occasions loss, is not actionable unless it is injurious (defamatory). If the language is not injurious (defamatory) in its nature, it cannot, as a natural consequence, occasion loss, and it may well be that none other than language defamatory in its nature (disparaging) can as a natural and proximate consequence occasion loss. It may be correct to say that "to make the words wrongful they must in their nature be defamatory,"^ provided the rule thus expressed be understood as being subordinate to and implied in the more comprehensive rule, that to render actionable that language which is not actionable per se, the language must occasion special damage, in the proper sense of that term.3 The real question must always be, was the damage special damage must be the natural result of the thing done." (Patteson, J., Kelly V. Partington, 5 B. & Adol. 546; and see Haddon v. Lott, 15 C. B. 411 ; 24 Law [our. Rep. N. S. C. P. 49.) The special damage must be in consequence of the de- fendant's act. (Hastings v. Palmer, 20 Wend. 225.) 1 "The special damage will not help you if the words are not defamatory." (Blacliburn, J., Young v. McCrae, 3 Best & S. 264 ; 7 Law Times, N. S. 354- To the like effect, Sheahan v. Aheanie, 9 Ir. R. C. L. 412 ; Miller v. David, 22 Weekly Rep. 332.) That words, to be actionable, need not be defatnatory of the individual, is shown from the fact that words concerning things may be actionable. "^ Patteson, J., Kelly v. Partington, 5 B. & Adol. 645. 3 " I cannot agree that words laudatory of a person's conduct would be the sub- ject of an action if they were followed by special damage. They must be defamatory or injurious in their nature." (Littledale, J., Kelly v. Partington, 3 Nev. & M. 117 ; 5 B. & Adol. 645.) " The words must be defamatory in their nature ; and must in fact disparage the character, and this disparagement must be evidenced by some positive loss arising therefrom directly and legitimately as a fair and natural result." (Strong, J., Terwilliger z/.Wands, 17 N. Y. 61 ; and see Hallock v. Miller, 2 Barb. 633, and §§ 72, 176, attte.) 21 v) l8 WHAT LANGUAGE IS ACTIONABLE [CH. VIIL complained of a natural and proximate consequence of the publication ? ' For " it is a rule equally consistent with good sense, good logic, and good law, that a person who would recover damages for an injury occasioned by the conduct of another, must show as an essential part of his case, the relation of cause and effect between the con- duct complained of and the injury sustained." = ^ 198. What is special damage? Special damage consists 3 in, among other things, the loss of marriage, loss of consortium of husband and wife,'^ loss of emolu- ments, profits, customers, employment, or gratuitous hos- pitality,^ or by being subjected to any other inconven- ience or annoyance occasioning or involving an actual or constructive pecuniary loss.^ The special damage must ' Denman, Ch. J., Knight v. Gibbs, 3 Nev. & M. 467 ; i Adol. & El. 48. 5 Olmstead v. Brown, 12 Barb. 662. 2 "As to what constitutes special damage, Starkie mentions the loss of marriage, loss of hospitable gratuitous entertainment, preventing a servant or bailiff from get- ting a place, the loss of customers by a tradesman, and says that, in general, when- ever a person is prevented by the slander from receiving that which would otherwise be conferred upon him, though gratuitously, it is sufficient." (Terwilliger v. Wands, 17 N. Y. 60; citing Starkie on Slander, 195, 202; Cooke on Defam. 22, 24.) Plaintiff being refused employment (Sterry v. Forman, 2 Car. & P. 592), or in- surance upon a ship of which he was master (Shipman v. Burrows, I Hall, 399), is special damage. * Lynch v. Knight, 5 Law Times, N. S. 291 ; 9 House L. 577 ; Parkins v. Scott, 6 Law Times, N. S. 394 ; i House L. 153 ; Roberts v. Roberts, 33 Law Jour. Q. B. 249 ; and see Passman v. Fletcher, Clayton, 73. * Moore v. Meagher, I Taunt. 39; Williams v. Hill, 19 Wend. 305. Where a father, in consequence of defamatory words spoken of his minor daughter, although he entirely disbelieves them, refuses to furnish her with proper articles of clothing, or means of education, this is not such special damage as will sustain the action, as such treatment by a parent of his child is tiot the natural result of a falsehood re- ported of her. (Anon. 60 N. Y. 262.) *"A11 the cases proceed upon the assumption that the plaintiff has sustained some pecuniary loss in consequence of the slander. It is not sufficient that she has fallen into disgrace, contempt and infamy, and lost her credit, reputation and peace of mind, or the society or good opinion of her neighbors, unless she has been in- jured in her estate or property." (Woodbury v. Thompson, 3 N. Hamp. 194 ; and see ante, notes i, p. 109, and i, p. 113; Kelly v. Partington, 3 Nev. & M. 116 ; Keenholts z/. Becker, 3 Denio, 346; Foulger v. Newcomb, Law Rep. 2 Ex. 330.) And because, in, England, the fees of barristers and physicians are honorary, it has § iqS-] with special damage. 319 be the loss of some material temporal advantage. Loss of consortium vicinorimi is not sufficient/ Where the declaration alleged that defendant had spoken of the female plaintiff that she had connection with a man two years ago, whereby she was injm-ed in her reputation, became alienated from and deprived of the cohabitation of her husband, lost and was deprived of the companion- ship, and ceased to receive the hospitality of divers friends, of whom her husband and three other persons were named, held, upon demurrer, that the declaration was good, the special damage being sufficient to sustain the action/ But where a declaration, after stating the words, which were not actionable per se, alleged " where- by plaintiff has been damaged and injured in her name and fame," on dem,urrer held not to disclose any special damage, and demurrer allowed.^ Where words were been doubted if barristers or physicians can sustain special damage in their profes- sions. (Brown v. Kennedy, 32 Law Jour. Chan. 342.) The doubt, however, is ill- founded, as the loss of a gratuity is special damage. (Hartley v. Herring, 8 T. R. 130; and note 3, p. 318, and note i, p. 325, /ost.) There must, too, be a want of probable cause ; and if what the defendant said* or did was in pursuance of a claim of title, for which he has some ground, he is not responsible. (Bailey v. Dean, 5 Barb. 297 ; Stark v. Chetwood, 5 Kansas, 141.) The existence of probable cause is no answer to the action, nor does the want of it necessarily prove malice. (Kendall V. Stone, 2 Sandf. 269.) Mere assertions, threats, and designs, made against a grantee of real estate, and against the party in possession, cannot be deemed a cloud upon the title. If the owner is injured by any such false claims or representations, he can probably maintain an action for damages. {J?e Madison Ave. Bapt. Church, 26 How. Prac. R. 72.) ' Kendall v. Stone, 5 N. Y. 14. Plaintiff alleged he was prevented from selling 338 \VnAT LANGUAGE IS ACTIONABLE. [ciI. VI 11. sale of the property in question. This damage can occur only in the cases where no contract to sell exists, i. c, to cases where one is, by the languap^e published, deterred from making a purchase, or entering into a contract to purchase. Where a contract for sale and purchase has already been entered into, the purchaser's refusal, on ac- count of any statement of a third party, to complete his contract, would not in an action against such third party, for making such statement, constitute special damage ! A man may refuse to bid for property upon which, or upon the title to which, an imputation rests ; such refusal is a nahtral consequence of the imputation ; but one who is already under a contract to purchase may not (has not the right to), by reason of any imputation on the subject of such contract, refuse to complete ; besides that his re- fusal would be illegal, it would not be a natu7'al conse- qnence of the imputation. Perhaps this rule is applicable only to the slander of title to real estate, and in the cases where the title is capable of such clear proof as to out- w^eigh any imputation against it, but in the case of title to personal property, the title to which is not capable of such satisfactory proof as is the title to real property, a different rule may prevail, for in such a case it would seem to be but a statural consequence that one under con- tract to purchase should be deterred from completing by reason of imputations upon the seller's title, just as in the case of the contract to deliver battens the seller was de- terred from delivering them by reason of the defendant's claim of lien.' (§ 2o6<5.) § 206 a. Where the assignee of a lease which con- tained a proviso for re-entry in case the rent reserved by his mine by the misrepresentations of the defendant to the proposed buyer, that an expert was of opinion that said mine was but a pocket that would soon run out ; held plaintiff might recover. (Paull v. Halferty, 63 Penn. 46.) ' Green v. Button, 2 Or. M. & R. 707. See § 201, ante. § 2o6a.] slander of title. 339 it was in arrear, exposed the lease for sale, there being at the time rent in arrear, the lessor appeared at the time and place appointed for the sale, and announced that such assignee had no title and could not make a title, in conse- quence of which announcement, persons who came to bid for the lease refused to bid ; the lessor afterwards offered ^loo for the lease, which was refused ; he brought eject- ment and recovered the possession of the premises. In- termediate the attempted sale and the recovery in the ejectment, the assignee sued the lessor for slander of title ; the court on the trial was of opinion that, under the circumstances, the plaintiff could not maintain the action, but left the question of malice in making the publication to the jury, and they found that it was malicious. The court, however, directed a nonsuit.' It is supposed that the nonsuit was set aside, and that the plaintiff had judg- ment on the ground that the question of malice having been left to the jury as a question of fact, and found against the defendant, the court could not disregard the finding and say there was no malice.^ The defendant, a surveyor appointed under Stat. 7 and 8 Vict, ch. 84, attended a sale of some unfinished houses, of which the plaintiff was the lessee for a term of years. The roadway to these houses, although of sufficient width according to the above statute, was at that time in an unpaved state and unfit for traffic. At such sale the defendant made the following announcement : "I shall not allow the houses to be finished until the roads are made good. I have no power to compel any one to make the roads, but I have power to stop the buildings until the roads are made." Some time after such sale, the defendant, on * Smith V. Spooner, 3 Taunt. 246. The attorney of a party who would be justi- fied in making objections to a title, is not liable to an action, if he bona fide, though without authority, state only what his principal might have stated. (Watson v. Rey- nolds, I M. & Malk. I.) ''■ I Starkie on Slander, 318. 340 WHAT LANGUAGE IS ACTIONABLE. [CH. VII I_ being asked why he pursued Mr. Pater, replied, " I pursue Mr. Pater because I am not able to pursue Mr. Agar, the ground landlord." Upon this state of facts, held, that there was no evidence to support the allegation of malice.' Where one mortgaged his estate, and afterwards commit- ted an act of bankruptcy, subsequently the property was offered for sale by the assignee of the mortgagor, the defendant, the attorney of the mortgagee, stopped the sale by stating that the mortgagor had committed an act of bankruptcy, and which was untrue, that a docket had been out for a commission ; in an action for losing the sale, held that although the defendant went beyond the truth, there was no material variance and no difference made with respect to plaintiff's title, and there being no proof of malice, the action could not be maintained.^ The plaintiff being about to sell an estate, the defendant wrote a letter to the intending purchaser, imputing insanity to Y., the person from w^hom the plaintiff derived his title, and stating that the title would be disputed ; in conse- quence of which letter the proposed purchaser refused to purchase. It appeared on the trial that Y. had married a sister of the defendant, and that a term of years in the estate in question w^as vested in the defendant as trustee, to secure a jointure to Y.'s wafe. The judge on the trial ruled that if defendant believed, upon such grounds as would persuade a man of sound sense and knowledge of busmess, that Y. was insane, the defendant would be entitled to a verdict. A verdict was taken for the plaint- iff ; the court above, on granting a new trial, condemned this ruling as unsound, and stated, "If what the defendant wrote w^as most untrue, but nevertheless he believed it, if he was acting under the most vicious of judgments, yet if he exercised that judgment bona fide, it was a sufficient ' Pater v. Baker, ii Jurist, 370 ; 16 Law Jour. R. 124 C. P. ; 3 C. B. 831. ' Hargrave v. Le Breton, 4 Burr. 2422. § 2o6a.] slander of title. 341 justification. "^ * The jury must arrive at their con- clusion through the medium of malice or no malice in the defendant. The bona fides of the publication, and not what a man of rational understanding would have done, is the question to be canvassed."^ The defendant, who was the ground landlord and remainderman of leasehold premises, of which the plaintiff was assignee of the lessee, stated at an auction at which the lease and assignment were put up for sale, that all the covenants in the lease had been broken, that he had commenced ejectment to recover the possession of the premises, and that it would cost /70 to repair the premises, in consequence of which the lease brought less than it otherwise would. On the trial it appeared that some only of the covenants in the lease had been broken, and the judge directed the jury, that the only question was, whether what the defendant stated was untrue, and if it was, the plaintiff was entitled to recover. The jury found for plaintiff, and gave £^o damages. On motion for a new trial, the ruling at the trial was held erroneous, and that the proper question was, whether so much of the defendant's statement as was false was also malicious.^ Where the plaintiff, as administratrix, was about to sell leasehold property, de- fendant, after being informed by the attorney of the plaintiff that there was no will of the decedent, issued an advertisement, offering a reward for the will of such decedent, held the question was whether he had "a sincere and genuine belief that there was a will." ^ A. died possessed of furniture in a beer-shop. His widow, without taking out administration, continued in posses- sion of the beer-shop for three or four years, and then died, having, whilst so in possession, assigned all the ' Pitt V. Donovan, i M. & Sel. 639. ^ Brook V. Rawl, 4 Exch. 521 ; and see Goulding v. Herring, i Rolle R. 141- 2 Atkins V. Perrin, 3 Fost. & F. 180. 342 WHAT LANGUAGE IS ACTIONABLE. [CH. VIIL furniture by bill of sale to her landlords, by way of secu- rity for a debt she had contracted with them. After the widow's death, the plaintiff took out letters of adminis- tration to the estate of A., and informed the defendant, the landlords' agent, that the bill of sale was invalid, as the w^idow had no title to the furniture. Subsequently the plaintiff was about to sell the furniture by auction, when the defendant interposed to forbid the sale, and said that he claimed the goods for his principals under a bill of sale. On proof of these facts, in an action for slander of title, the plaintiff was nonsuited : held, that the mere fact of the defendant's having been told before the sale that the bill of sale was invalid, was no evi- dence of malice to be left to the jury, and that the plaintiff was, therefore, properly nonsuited/ An order having been made by the Court of Chancery, requiring G., the plaintiff, to pay a sum of money, the defendant registered the order pursuant to statutes i and 2 Vict., ch. no, whereby it became a lien on the real estate of the plaintiff, and prevented him raising, by a sale or mortgage of his estate, the money ordered to be paid, held the action could not be maintained, there being no proof of malice." And where the defendant published a notice cautioning all persons not to purchase of the plaintiff a certain tract of land, alleging that the plaintiff obtained the title to said land from the defendant by means of false pretenses, and that the defendant intended to institute a suit to annul plaintiff's pretended title, it was held not on its face to show malice.^ § 20^ b. Some of the old cases hold that one by claiming title in himself cannot give a right of action for ' Steward v. Young, Law Rep. 5 C. P. 122. - Gibbs V. Pike, i Dowl. N. S. 409; 6 Jur. 465. 2 McDaniel v. Baca, 2 Gal. 326. § 2o6b.] slander of title. 343 slander of title ; that to render the claim actionable, it must assert a title in a stranger/ This distinction no longer prevails. So formerly it seems to have been sup- posed that the only ground of damage was a loss of the sale or leasing of the property, the title to which was assailed ; it is, however, well settled at this day that any loss which is a natural and proximate consequence of the language is damage." The action cannot be maintained unless there is special damage. ^^ Where, prior to the publication of the language complained against, the plaintiff and one W. had contracted for the sale of a lot of land — in consequence of the publication W. wished to be released from his contract, and plaintiff released him—plaintiff sued, charging the loss of a sale to W. as the special damage, held that the rescinding of the con- tract with W. was not special damage, and that no action could be maintained. '^ But where plaintiff had borrowed a sum of money of defendant, and afterwards plaintiff bought spruce battens of A., and before delivery of the battens, defendant gave notice to A. not to deliver them, and that he, plaintiff, had a lien upon them, in an action by plaintiff, alleging that the defendant falsely claimed such lien, and that, by reason of such notice and pretense of lien, and non-delivery of said battens, he had lost the use of them, and been hindered in building cer- tain houses, it was objected that there being a valid con- 1 Jenkins Cent. 247 ; Pennyman v. Rabanks, Cro. Eliz. 427 ; Lovett v. Waller, i Rolle R. 409; Gerard v. Dickinson, 4 Coke, 18 ; Sneade v. Badley, 3 Bulst. 75 ; s. c. I Rolle R. 244; and see Vin. Abr. Act. for Words, L, B, 2, 8 ; Anon. Sty. 414 ; Boulton V. Shields, 3 Up. Can. Q. B. 21. 2 Malachy v. Soper, 3 Bing. N. C. 371 ; 3 So. 723 ; Tasburgh v. Day, Cro. Jac. 4S5. 3 Watson V. Reynolds, i Mo. & Malk. i ; Lowe v. Hanvood, Sir W. Jones, 196 ; s. c. Cro. Jac. 140; Pal. 529; Cane v. Goulding, Sty. 169; Sneade v. Badley, 3 Bulst. 75 ; s. c. I Rolle R. 244; Brook v. Ravvl, 4 Exch. 521 ; Pater v. Baker, 3 C. B. 831 ; and ante in note 3, p. 337. 4 Kendall v. Stone, 5 N. Y. 14 ; rev'g s. c. 2 Sandf. 269. 344 WHAT LANGUAGE IS ACTIONABLE. [( I L \l[\. tract with A., if plaintiff had suffered any damage bv reason of the non-dehvery of the battens, he must look to A.; that the non-delivery was an illegal act for which the defendant w^as not liable ; but the court held other- wise, and sustained the action.' Perhaps plaintiff being prevented from raising money by mortgage on his lands, is such damage as may entitle him to maintain an action.^ Where the alleged slander consists in the defendant claiming title in himself, the fact of his not having a title is not per se evidence of malice.^ But the defendant having no title is a circumstance from which malice mav be inferred.* Where the defendant in fact made the pub- lication under the advice of counsel, but did not, at the time of making the publication, state that he was acting under such advice, held that the fact of his acting under such advice did not per se shield him from an action ; ^ but it was a circumstance to be considered in determin- ing whether or not the publication was made mali- ciously.^ ^ Green v. Button, 2 Cr. M. & R. 707. ' Linden v. Graham, i Duer, 670. In that case the plaintiff was defeated er- roneously, as we suppose, because the damage was not stated with sufficient certainty in the complaint. This want of certainty was a ground for making the complaint more definite, but not, as we think, for holding the complaint insufficient. As to how the damage must be alleged, see Malachy v. Soper, 3 Bing. N. C. 371 ; Tilk v. Parsons, 2 Car. & P. 201 ; Delegal v. Highley, 8 Car. & P. 444. A general allega- tion that the plaintiff's property has been lessened in value, or that people believe he has no title, or that he has been prevented from selling, is not sufficient. (See §§ 329, 369, post?) Where the declaration alleged : whereby M. was prevented from completing his contract for the purchase of said land from plaintiff, and plaintiff lost the sale of said land and the use of the purchase money thereof, and has been unable to sell said land, and has been put to great expense in quieting the title to said land, it was held to be a sufficient averment of special damage. (Ashford v. Choate, 20 Up. Can. C. P. Rep. 471.) ' Hill V. Ward, 13 Ala. 310. * McDaniel v. Baca, 2 Cal. 326. ' Like V. McKinstrj', 41 Barb. 1S6 ; affi'd 4 Keyes, 397 ; and see Hill v. Ward, 13 Ala. 310. ' Hill V. Ward, 13 Ala. 310. §§ 206C, 207.] CONCERNING THINGS. 345 § 206 c. The action for slander of title is not restricted to language affecting real property, it lies for slander of title to personal property ; thus, where at a public sale of rye the defendant attended, and in the presence and hearing of the persons there assembled, said : *' I forbid selling the rye ; it is mine," in consequence of which persons were deterred from bidding, and the rye sold for less than it would otherwise have done, it was held an action could be maintained/ § 207. As one cannot cloak his wrong-doing by the use of ironical language (§ 133)^ so neither can one with im- punity attack a person by pretending to attack a thmg ; for although the words may be professedly concerning a thing, yet if in reality they concern a person, they will be judged by the rules governing language concerning the person.^ Whether certain language concerns a person or 1 Like V. McKinstry, 41 Barb. 186; affi'd 4 Keyes, 397; and see Gustole v. Mathers, i M. & W. 495 ; l Tyrw. & Gr. 694; Green v. Button, i Gale, 349 ; 2 C. M & R 707; I Tyrw. & Gr. 118 ; Malachy v. Soper, 3 Bing. N. C. 371 ; 3 Scott, 723 • Rowe V. Roach, i M. & S. 304; Carr v. Duckett, 5 Hurl. & N. 783 ; Hill v Ward 13 Ala. 310; and slander of title to a slave. (Ross v. Pines, Wythe, 71-) An action was maintained for alleging that plaintiffs machines were an infringement on defendant's patents. (Wren z-. Weild, Law Rep. 4 Q- B. 213.) "Caution. To all who may be arranging with J. M. Cousins for his self-acting pump, who claims to have patented same in April last. I wish to caution the public against having anything to do with Cousins or his pumps, it being an infringement on my patent obtained in 1858. I intend to prosecute him immediately. Beware of the fraud and save costs," held, besides being a slander of plaintiff's title, to amount to a libel of him individually. (Cousins v. Merrill, 16 Up. Can. C. R 114.) An action was maintained for saying of the plaintiff's stallion that it had the venereal disease. (Weir V. Allen, 51 N. H. 177; see ante, note 2, p. 337-) ■^ Carr v Hood, i Camp. 355, «• An employer may have an action for language injurious to him in his business, although the language directly points to a person in his employ and not to himself; and the owner of a chattel may sue for injury to his business by language respecting such chattel, but necessarily referring to the owner. {Harnett v. Wilson, i Victoria Law Times, 45 ; and see Riding v. Smith, Law Rep. I Ex Div 91 ) In Tobias v. Harland, 4 Wend. 537, the court said that words dis- paraging an article made or dealt in by the plaintiff, were not actionable unless they imputed deceit or malpractice in the making or vending, or a want of skill in the manufacturing. In reference to this dictum it must be observed that words imputing to plaintiff deceit or want of skill do not concern the thing, but the person, and are 346 WHAT LANGUAGE IS ACTIONABLE. [CH. VIII. a thing is sometimes a question difficult to determine ; but it is always a question of fact, and like every other question of fact, is to be determined sometimes by the court and sometimes by the jury (§ 69). The language which on its face concerns a person, may indirectly affect a person other than the person whom on its face the lan- guage concerns. It may affect one as concerning him personally, and affect another as concerning a thing. The language heretofore referred to (§ 201) concerning an actress, whereby she refused to perform her engagement, was as to her concerning the person, but as to her em- ployer it was concerning a thing, namely, his right of property in or to her services. therefore within the rules relating to personal defamation. (See Latimer v. West. Morning News Co. 25 Law Times, N. S. 44.) As to pleas in actions for slander of title, see Mair v. Culy, 12 Up. Can. Q. B. 71 ; Boulton z*.^ Shields, 3 Id. 21 ; Crean v. Gamble, 7 Ir. Jur. N. S. 531. CHAPTER IX. DEFENSES. Privileged publications generally — Repetition — Trtith — Legislative proceedings and reports thereof— J itdicial proceedings — Parties to proceedings — Counsel^Wit- 7tesses— Judges — Grand jurors— Reports of judicial proceedings — Quasi judicial proceedings — Church dis- cipline — Seeking advice or redress other than judi- cially — Giving inforjnation or advice geiierally — Attoriiey and client — Master and serva7tt — Candi- dates for office or employment — Lisanity — Drtmken- ^css — Infancy — Accord and satisfaction — Previous recovery — Apology — Freedom of the press — Criti- cism. § 208. The actionable language referred to in the preceding chapter is to be understood as prima facie actionable only, that is to say, it is actionable when published without any legal excuse for making the pub- lication.' We have, in previous chapters (§§ 64, 65), referred to the kinds of legal excuses, and the distinction between legal excuses and defenses, and (§ 50) stated ' To every libel there may be an implied justification from the occasion. (Weather- stone V. Hawkins, I T. R. no.) But " there are some libels it is impossible to jus- tify." (Pollock, Ch. B., Darby v. Ouseley, 25 Law Jour. 227, Ex.) " Whether the circumstances under which a communication is made constitute it a privileged com- munication or not, is a question which the court has assumed the jurisdiction to decide. But it is more a question of fact in each particular case than a question of law. The court is to consider whether the occasion is such as to make the commu- nication one of a privileged character. That being so, it by no means follows that we can derive much aid in one case from another the circumstances of which are not exactly the same." (Maule, J., Wenman v. Ash, 13 C. B. 836 ; and see Darby v. Ouseley, i Hurl. & N. i.) 348 DEFENSES. L But, as was said by Creswell, J. i^ "It is not easy very pre- cisely to define what is, and what is not, a privileged communication." We venture, with much hesitation, to suggest the rule as to privilege to be : one may publish, by speech or writing, whatever he honestly believes is essential to the protection of his own rights, or to the rights of another, provided the publication be not im- necessarily made to others than to those persons whom 1 Manby v. Witt, iS C. B. 544. 2 Somerville v. Hawkins, 10 C. B. 583 ; 15 Jur. 450. 3 Pattison v. Jones, 8 B. & C. 578. Where there are several distinct [divisible, § 145] charges, some privileged and some not privileged, those not privileged are not justified by the charges that are privileged. (Clarke v. Roe, Ir. Rep. 4 Com. Lavir, i). One charge may be justified. (§ 212, post.) 4 Harrison v. Bush, 5 El. & Bl. 349. 5 Wenman v. Ash, 13 Com. B. 844. 352 DEFENSES. [CH. IX. the publisher honestly believes can assist iiim in the pro- tection of his own rights, or to those whom he honestly believes will, by reason of a knowledge of the matter published, be better enabled to assert, or to protect from invasion, either their own rights, or the rights of others intrusted to their guardianship (§ 241). § 210. It will be convenient, prior to considering the several occasions which give rise to privileged publica- tions, to discuss the supposed privilege under certain con- ditions of repeating defamatory matter. It already ap- pears that the publication of defamatory matter cannot be justified on the ground that it is but a repetition (§ 114).' For a long period, however, it was tacitly con- ' One who repeats a slander is responsible. (Evans v. Smith, 5 T. B. Monr. 363; Kennedy v. McLoughlin, 5 Gray, 3 ; Clarke v. Munsell, 6 Mete. 373 ; Hampton v. Wilson, 4 Dev. 468 ; Muma v. Harmer, 17 Up. Can. Q. B. Rep. 293.) It is no de- fense to an action for defamatory matter published in a newspaper, that it was the communication of a correspondent, or copied from another newspaper (Talbutt V. Clark, 3 Moo. & R. 312; Sanford v. Bennett, 24 N. Y. 20; Miles v. Spencer, i Holt R. 533 ; Parker v. McQueen, 8 B. Monr. 16 ; McDonald v. Woodruff, 2 Dill. Cir. Ct. R. 244), or that it had been previously published, and the plaintiff had failed to prosecute the previous publisher (Rex v. Holt, 5 T. R. 436; Curtis v. Mussey, 6 Gray [Mass.] 261 ; see Poppenheim v. Wilkes, I Strobhart, 275); or that when the charge was made, the plaintiff did not deny it. (Fuller v. Dean, 31 Ala. 654.) In Reg. V. Newman (i El. & Bl. 268), the defendant on the trial offered to put in evi- dence the Dublin Review, of a date prior to the alleged libel, in order to show that the charge contained in the libel had been published a considerable time before the alleged libel, and that the publisher had not been prosecuted; this evidence was re- jected, and the rejection was made one of the grounds for a motion for a new trial, and per Coleridge, J., " It has been said that probably the libel was true becau.se another libel was published by another person. Upon that principle, it might have been argued that the statements in the Dublin Review were true because they had previously appeared in some other publication. Such evidence is far too vague to be received. The fallacy of the learned counsel's 'argument consists in the prose- cutor's alleged submission to the previous libel. The utmost that can be said is that he did not prosecute the parties. That might have arisen from various considera- tions. He might not be able to fix on a particular person, or upon any one of char- acter, or he might be prevented from proceeding by his poverty, or by a variety of other circumstances. Besides, it is not always considered expedient to institute pro- ceedings in respect to the first charge." Nor is it any justification that prior to the publication complained against, there was a rumor or report current and generally believed that the plaintiff was guilty of the offense imputed. (Hampton v. Wilson, 4 Dev. 468 ; Haskins v. Lumsden, 10 Wis. 359 ; Moberly v. Preston, 8 Mo. R. 2 10.] REPETITION. 353 ceded that such a repetition could be justified by declar- ing the name of the previous publisher. The origin of the error is generally attributed to a dictum in the Earl of Northampton's case, A. D. 1613.' That case was an information under the statutes of scandaluni magnatum in the Star Chamber, against Goodrich, Cox, Varner, Minor, Lake, and Ingram, for publishing defamatory lan- guage concerning the Earl of Northampton. The de- fendants all appeared in court ; Goodrich confessed to the publication, but alleged in justification that he was not the first author, and vouched said Cox, who in like manner confessed and vouched said Varner, who in like manner confessed and vouched said Minor, who in like manner confessed and vouched said Lake, who in like manner confessed and said he heard the words from one Spoket, who said he heard them from said Ingram, who in like manner confessed and said he heard the words from two English fugitives at Leghorn. The court inti- mated that the defense of the language being a repetition, zvould be available in the case of a common person, but not in the case of a peer, and all the defendants were punished by fine and imprisonment. The error so far gained ground that subsequently ^ we find it held that a 462; Cude V. Redditt, 15 La. An. 492 ; Dane v. Kenney, 5 Foster [N. H.] 318 ; Lewis V. Niles, i Root, 346 ; Knight v. Foster, 39 N. H. 576; Woolcott 7'. Hall, 6 Mass. 514 ; Alderman v. French, I Pick, i ; Watkin v. Hall, Law Rep. 3 Q. B. 396) ; or that the defendant spoke the words as merely giving the report. (Wheeler V. Shields, 2 Scam. 348 ; Smalley v. Anderson, 4 T. B. Monr. 367.) Perhaps a de- fendant may give in evidence under the general issue the existence of rumors against the plaintiff's character, to show that he has sustained no injury or in mitigation. (Waithman v. Weaver, I D. & R. 10 ; Treat v. Browning, 4 Conn. 408 ; Nelson v. Evans, I Dev. 9; Calloway v. Middleton, 2 A. K. Marsh. 372 ; Binns v. Stokes, 27 Miss. [5 Gush.] 239.) Neither particular reports, nor public reputation of the slan- der, nor of kindred charges against the plaintiff, are admissible. (Inman v. Foster, 8 Wend. 602 ; Kennedy v. Gifford, 19 Wend. 296; Mapes v. Weeks, 4 Wend. 659 ; Watson V. Buck, 5 Gow. 499; see §§ 216, 411.) ' 12 Goke, 132; F. Moore, 821. ^ Crawford v. Middleton, i Lev. 82. 354 DEFENSES. [CH. IX. plaintiff in an action for slander, where the slander ap- peared to be a repetition, was required in his declaration to negative that the defendant had in fact heard spoken the language he was charged with publishing. Passing over a long interval we find, A. D. 1 796, Lord Kenyon, then Chief Justice of the King's Bench, referring approv- ingly to the Earl of Northampton's case, but he intro- duced this qualification that to render the repetition jus- tifiable, the defendant must at the time of the repetition, mention the name of the previous publisher, and that to name the previous publisher for the first time in the defendant's plea' was not a justification. This quali- fication was repeated in a subsequent case, A. D. 1805.' This other qualification was also introduced, that if the first publisher retracted w^hat he had published, one who subsequently and w^ith a knowledge of such re- traction repeated the matter, was not legally excused by naming the prior publisher.^ It long continued to be conceded as law that no action could be maintained for the repetition orally of defamatory matter, if at the time of the repetition the name of the previous publisher was mentioned ; thus, in A. D. 1829, in an action for slander, the plea that the language was a repetition of words pre- viously spoken by A., and that A. was named as the author at the time of the publication, w^as overruled, not because naming the author was no defense, but because the plea did not allege that A. spoke the w^ords mali- ciously, nor that the defendant believed them to be true, nor that they were spoken on a justifiable occasion." In ' Davis V. Lewis, 7 T. R. 17 ; and see Church v. Bridgman, 6 Mo. 190. "^ Woolnoth V. Meadows, 5 East, 463. ^ Maitland v. Goldney, 2 East, 426. "* McPhearson v. Daniels, 10 B. & C. 263 ; and see Moberly v. Preston, 8 Mo. 462. In Lewis v. Walter (4 B. & Aid. 605), it was said there must be a just reason for the repetition. In Hawkes v. Coster, i Law Reporter, 192 (London, 1821), Abbott, Ch. J., nonsuited the plaintiff in an action for slander, "for the defendant I 2IO.] REPETITION. 355 Connecticut, it seems, that giving the name of the author was never allowed as a defense, but the fact was received in mitigation - subsequently it was held not receivable m that State, even in mitigation.^ In Pennsylvania, giving the name of the previous publisher was held to rebut the inference of malice,^ and to amount to a mitigating cir- cumstance.* In Maine and some other States, it has been held that in an action for slander, giving the name of the previous publisher of the words is a justification of the repetition.5 Thus far we have had reference only only repeated the words of another, and gave his name at the time." (And see O'Keefe v. Earl of Kingston, i Leg. Rep. 165 [Irish]). ' Leister v. Smith, 2 Root, 24. ^ Austin V. Hanchett, 2 Root, 148 ; Treat v. Browning, 4 Conn. 408 ; and, in Wisconsin, see Saus v. Joerris, 14 Wis. 663. 3 Binns V. McCorcle, 2 P. A. Brown's R. 79 i Hersh v. Ringwalt, 3 Yeates, 508. * Kennedy v. Gregory, i Binney, 85 ; Morris v. Duane, I Binney, 90, n. In New Jersey naming the previous publisher was received in mitigation. (Cook z/.Barkley. I Pennington's N. J. Rep. 169, A. D. 1S07.) In Jarnigan v. Fleming(43 Miss. 7"). it is said that naming the previous publisher is not a defense, unless it ts made with a good motive. This is equivalent to saying-that naming the previous publisher is not a defense. 5 Unless it be proven that the repetition was malicious. (Haynes v. Leland, 29 Maine, 233; Abrams v. Smith, 8 Blackf. 95 ; Jones ^.Chapman, 5 Blackf. 88 ; Crane V Douglass, 2 Blackf. 85 ; Cummerford v. McAvoy, 15 lU-S"; Johnston v. Lance, 7 Iredell 448) Disclosing name of author at time of repetition held a defense. (Kelly V Dillon 5 Ind. [Porter], 426; Trabue v. Mayo, 3 Dana, 138 ; Robinson v. Harvey, 5 T. B. Monr. 519 ; Parker v. McQueen, 8 B. Monr. 16 ; O'Keefe v. Earl of Kmgston, I Leg Rep. 165.) Giving name of author is evidence of want of malice. (Miller V Kerr 2 McCord, 285 ; Church v. Bridgman. 6 Mo. 190 ; and see Easterwood v. Quinn 2 Brevard, 64 ; Smith v. Stewart, 5 Barr, 372 ; 'Sexton v. Todd, Wright [Ohio], 317 • Haine v. Welling, 7 Ham. 253 ; Farr v. Rasco, 9 Mich. 353 ; Fowler v. Chi- chester 4 Amer. Law Record [Ohio], 318.) The defense of giving name of author must be specially pleaded. (Brooks v. Bryan, Wright, 760.) In slander, evidence that the defendant had been told by a third person that the plaintiff was guilty of the crime imputed to him is inadmissible. (Mapes v. Weeks, 4 Wend. 659 ; Austin V. Hanchett, 2 Root, 148.) In slander, it is no justification that defendant after speaking the words and before the commencement of the action, disclosed to plaint- iff the author of the words. (Skinner v. Grant, 12 Vt. 456.) In Scott v. Peebles (2 Sme. & M. 546), it was held to be no defense to an action for slander that the de- fendant heard the matter from a person out of the jurisdiction of the court. (See Evidence in Mitigation, and Oilman v. Lowell, i Amer. Lead. Gas. 202, n. ; 2 Greenl. Ev. § 424, w.) 356 DEFENSES. [cn. IX. to actions for slander ; the first case in which the ques- tion appears to have been raised in an action for libel was in the Supreme Court of Pennsylvania, A. D. 1803.' It was there held that giving the name of the author was no excuse for the publication of a libel. The like ruling was made A. D. 18 13, in the Supreme Court of New York."" The first mention of the point arising in an ac- tion for libel in the English courts was in A. D. 181 7, when it was held not to be a defense that the defamatory matter was communicated to the defendant by a third person. 3 In a subsequent case, for publishing an alleged libel purporting to be an account of a trial, the plea was that the alleged libel had been previously published in the H. Journal, and that G. II. M. then and still was the publisher thereof; on demurrer the plea was held bad, as the defendant in his repetition had only named the journal from which the alleged libel was copied, and had not given the name of the publisher, and it was intimated by the court that the defense of the publication being a repetition, and that the previous publisher was named at the time of the repetition, did not apply to libel.'' The first case in which the dictum in the Earl of Northamp- ton's case appears to have been altogether repudiated, was one before Judge Betts, in New York, A. D. 1825.5 It may now be considered as settled in New York and in England, that neither in the action for slander nor ' Runkle v. Meyers, 3 Yeates, 51S. '^ Dole V. Lyon, 10 Johns. 447. In Tennessee, the plea of repeating the words of another is no defense to a libel under any circumstances. (Larkins v. Tarter, 3 Sneed, 681.) Other\vise in slander, (/a'.) ^ Miles V. Spencer, i Holt N. P. 533. ^ Lewis V. Walter, 4 B. & Aid. 605, A. D. 1821. ^ Chevalier v. Brush, Anthon's Law Student, 186; this was followed by Mapes V. Weeks, 4 \Vend. 659 ; Inman v. Foster, 8 Wend. 602 ; Hotchkiss v. Oliphant, 2 Hill, 510; and see Johnston v. Laud, 7 Iredell, 44S ; Dole v. Lyon, 10 Johns. 447; Clarkson v. McCarty, 5 Blackf. 574 ; Moberly v. Preston, 8 Mo. 462; Romayne v. Duane, 3 Wash. C. C. 246; The State v. Butman, 15 La. An. 166. g 21 I.] TRUTH. 357 for libel is it any legal excuse that the alleged defama- tory matter had been previously published by another, whose name was mentioned at the time of the repe- tition.' § 211. It is now universally conceded that to show the truth of the matter published is a complete defense to an action either of slander or libel. A publication of the truth is, as to a civil action, absolutely privileged.^ > McGregor v. Thwaites, 3 B. & C. 24 ; 4 D. & R. 695 ; De Crespigny v. Wellesly, 5 Bing. 392; Bennett v. Bennett, 6 C. & P. 588 ; Fidman v, Ainshe, 10 Exch. 63. Nor does it make a defense that the defendant believed the matter pubhshed to be true {Id. ; Saus v. Joerris, 14 Wis. 663) ; or that plaintiff himself had previously published the same matter. (Cook v. Ward, 6 Bing. 409; Abshire v. Chne, 3 Ind^ 115.) As to giving evidence to show that the libel was in fact written by plamtitt himself, see Brookes v. Titchbourne, 5 Exch. 929. 2 Truth is a good defense in an action for libel or slander. {Ante, notes 2, 3, p. 122.) Truth is by statute a defense in Kansas, Louisiana, Maryland, and Virginia, also in England. (See Stat. 6 & 7 Vict. ch. 96.) Truth a defense. (Rayne v. Taylor, 14 La. Ann. 406 ; Perry v. Mann, i Rhode Island, 263 ; Joannes v. Jennings, eSup.Ct. R. [T. &€.] 138; II Sup. Ct. Rep. [4 Hun], 66; Root v. King, 7 Cow. 613, and 4 Wend. 113; i Stark, on Sland. 229 ; Lake v. Hutton, Hob. 253 ; r Anson v. Stuart, i T. R. 748.) But the defense of truth must be pleaded and can- not be given in evidence under the general issue, either in bar or in mitigation. (Underwood v. Parks, 2 Str. I200 ; Manning v. Clement, 7 Bing. 367 ; 2 Greenl. Ev. §424; Andrews z^. Van Duzer, 11 Johns. 38; Van Ankin v. Westfall, 14 Johns. 233 ; Shepard v. Merrill, 13 Johns. 475 ; Snyder v. Andrews, 6 Barb. 43; Wagner v. Holbrunner, 7 Gill, 296 ;- Smith v. Smith, 8 Ired. 29 ; Kelly v. Dillon, 5 Porter [Ind.] 426 ; Arrington v. Jones, 9 Port. 139 i Douge v. Pearce, 13 Ala. N. S..127 ; Kay V Fredrigal, 3 Barr, 221 ; Thompson v. Bowers, I Doug. 321 ; Taylor v. Robinson, 29 Maine [16 Shep.] 323 ; Teagle v. Deboy, 8 Blackf. 134 ; Wagstaff v. Ashton, i Harring. 503; Bodwell v. Swan, 3 Pick. 376 ; Alderman v. French, i Pick, i ; Up- degrove v. Zimmerman, 13 Penn. 619; Scott v. McKinnish, 15 Ala. 662 ; Eagan v. Gantt, I McMullan, 468 ; Rumsey v. Webb, i Car. & M. 104 ; Else v. Evans, Anthon N. P. '23; Burns v. Webb, I Tyler, 17; Samuel v. Bond, Litt. Sel. Cas. 158; Treat 7'. Browning, 4 Conn. 408 ; Bisbey v. Shaw, 12 N. Y. 67; Sheahan v. Collins, 20 111. 325 ; Haws v. Stanford, 4 Sneed, 520 ; and see Sidgreaves v. Myatt, 22 Ala. 617.) The' defendant may prove in mitigation such facts as show a ground of suspicion not amounting to actual proof of the charge (Wagner v. Holbrunner, 7 Gill, 296), or which tends to a proof of the truth, yet falls short of it (Snyder v. Andrews, 6 Barb. 43 ; Bisbey v. Shaw, 12 N. Y. 67 ; Scott v. McKinnish, 15 Ala. 662), or which rebut the presumption of malice. (Kennedy v. Dear, 6 Porter, 90 ; Arrington v. Jones, 9 Porter, 139 ; Hart v. Reed, l B. Mon. 166 ; Chapman v. Calder, 14 Penn. [2 Harris], 365 ; Abshire v. Cline, 3 Ind. 115 ; and see Moseley v. Moss, 6 Gratt. 534.) Evi- dence of general bad character may be admitted under the general issue. (Smith v. Smith, 8 Ired. 29; Taylor v. Richardson, 29 Maine, 323.) An action of slander for 358 DEFENSES. [cH. IX. The cases of rare occurrence, of actions for writing de- famatory words upon documents of the plaintiff, whereby the document is rendered less valuable, or entirely value- less, to the owner, are not exceptions to this rule. Such actions are, in fact, not actions for libel, but actions for malicious injury to property ; in such actions the truth of the defamatory matter does not amount to a defense ; thus where a coach proprietor wrote upon the license of his driver, " Discharged for being one shilling short," or where a police commissioner wrote on " a certificate " of a police officer, " Dismissed the police force," pleas of the truth of these statements were overruled.' We do not pretend to vindicate, either as just in its practical opera- tion or sound in principle, the rule which makes truth a complete defense to an action for slander or libel. charging a man with having the venereal disease, and with that disease upon him contracting marriage, and communicating that disease to his wife, cannot be main- tained, if the plaintiff immediately after his marriage had the disease in fact, even by proof that his wife, whom he married without knowing that she had the disease, com- municated it to him. (Golderman v. Stearns, 73 Mass. 181.) Where the charge is of a crime of which the plaintiff was convicted, it is no answer* to a plea of the truth of the charge that the plaintiff was pardoned. (Baum v. Clause, 5 Hill, 196; see ante, % 153.) The provision of the Constitution of the State of New \ ork, prior to its amend- ment in 1846, as to the defense of truth in prosecutions for libel, does not apply to civil actions. (DoUoway v. Turrell, 26 Wend. 383.) The amendment of 1846 limits the provision to criminal proceedings. (And see George v. Jones, 6 Sup. Ct. Rep. [T. & C] 138; see further under heads Pleading, Evidence.) It is said that where a crime is charged, and the defense of truth is sustained, the plaintiff may be put upon his trial for the offense without the intervention of a _grand jury. (Cook v. Field, 3 Esp. R. I33-) ^lany instances have occurred where the plaintiff's action for slander imputing the commission of a crime, have occasioned the prosecution and conviction of the plaintiff for the imputed offense. (See Pigot's Case, Cro. Car. 383 ; and note t, I Stark. Sland. 237 ; Symons v. Blake, 2 C. M. & R. 416; 4 Dowl. P. C. 263 ; I Gale, 182.) Wm. Parks, the first printer in Williamsburg, Virginia, published (A. D. 1736) of a member of the House of Assembly, that he had been convicted of sheep stealing ; Parks being arraigned before the House, stated the charge to be true, and that being found the fact, he was discharged. (See Thomas' History of Printing in America.) 1 Rogers v. McNamara, 14 Com. B. 27 ; Hurrell v. Ellis, 2 Com. B. 295 ; Taylor V. Rowan, 7 Car. & P. 70. 21 I.] TRUTH. 359 Neither the justice nor expedience of this rule is uni- versally, nor even very generally, conceded." The maxim that a man shall not profit by his own wrong," ordinarily adduced as an apology for the rule under consideration, if it applies in any case, certainly has no application where the truth consists in the misfortune and not in the wrong-doing of the person whom the publication con- ' " I am quite clear that the truth ought not to be made decisive (as a defense), either in civil or criminal proceedings ; for cases may be put where the truth, in- stead of being a justification, would not even be any mitigation ; nay, where it would be an aggravation." (Lord Brougham, Evidence, Rep. of House of Lords on Libel, &c., July, 1843); and see in the same report the opinions of other lawyers and judges to the like effect ; and see 2 Kent's Com. 25 ; Borthwick on Libel, 252 ; 29 Pari. Hist. 575 ; Preliminary Discourse to Starkie on Slander, xliv. - Blackstone gives as a reason the merit of the defendant in having exposed the truth. (3 Black. Com. ch. viii.) This is combated by Starkie, who contends for the ground that the plaintiff cannot take advantage of his own wrong, (i Starkie on Slander, 230, 232 ; and see Preliminary Discourse to Starkie on Slander.) If the words be true, they are no slander, and may be justified. (2 Wils. 301 ; II Mod. 99.) If the defendant * * prove the words to be true, no action will lie, * * for then it is no slander or false tale. (3 Black. Com. ch. viii.) The defendant is justified in law and exempt from all civil responsibility if that which he publishes be true, (i Starkie on Slander, 229.) "The truth is no slander." (Shakespeare, Romeo and Juliet.) In Rex V. Roberts (Ms. 8 Geo. II, A. D. 1735), Lord Hardwicke, Ch. J., re- marks : " It is said that, if an action was brought, the fact, if true, might be justi- fied ; but I think that is a mistake. Such a thing was never thought of in the case of Harman v. Delany (i Stra. 898). I never heard such a justification in an action for libel, even hinted at; the law is too careful in discountenancing such practices ; all the favor that I know truth affords in such a case is, that it may be shown in mit- igation of damages." It is added in a note by the editor of the American edition of Starkie on Slander (vol. I, p. 233): " In the time of Lord Hardwicke, it was denied, not only by him but by others, that the truth could be given in evidence in bar of a recovery ; " and in a subsequent note (vol. I, p. 235), until 1792, when the judges of England gave their opinion in Parliament upon questions put to them on the libel bill, the only authorities for the position that a defendant might plead the truth of a libel in justification, were the dicta of Hobart, Ch. J., in Lake v. Hutton (Hob. R. 253), and of Holt, Ch. J., in an anonymous case (11 Mod. 99), and the ac- quiescence of the bar and the court in I'Anson v. Stuart (i T. R. 748). Since then are the cases of King v. Parsons (A. D. 1799), in which Lord Kenyon observed that it was competent for a defendant in an action for libel to plead the truth in justifi- cation; and Plunket v. Cobbett (A. D. 1804), in which Lord Ellenborough remarked, "in case the libel had been true, the defendant could have justified it on the rec- ord." Another reason assigned for making truth a defense is, that truth disentitles to damages. (Blackburn, J., Campbell v. Spottiswoode, 8 Law Times Rep. N. S. 201 ; 3 Best & S. 769 ; Fairman v. Ives, 5 B. & Aid. 646.) 360 DEFENSES. [cil. IX. cerns. The rule allowing truth as a defense in a civil action for slander or libel appears to be an innovation, and of comparatively modern introduction.' Probablv its origin was in this wise : Until the statute of the fourth year of Queen Anne, A. D. i 706, only a single plea was permitted in a civil action, and there is no record prior to that statute of a plea of truth in an action for slander or libel. At least until A. D. 1702, truth was admitted in mitigation under the general issue of not guilty,' but between that date and A. D. 1716, probably after the statute of Anne allowing several pleas, at a meeting of the judges of England, the rule was settled not to allow the truth to be given in evidence in mitigation, but re- quiring " that it should be pleaded." ^ From this we infer that no such plea existed prior to that time, and the re- quiring the truth to be specially pleaded was evidently to prevent a surprise upon the plaintiff, and to enable him to be prepared with his reply. Notwithstanding this rule requiring truth to be specially pleaded, we find that at least until A. D. 1735, truth was regarded only as a mat- ter of mitigation. The system of pleading then in vogue knew no such thing as a plea in mitigation ; in that system every plea was either in abatement or in bar, and when truth was required to be pleaded it was almost of course to regard it as a plea in bar, and thus, as we suppose, the truth, when specially pleaded, became a defense. The truth, however, which is admitted as a de- ' Selwyn's N. P. 986 ; Borthwick on Libel, 246. Truth, it is said, was at all times a defense in an action for slander, (i Stark, on Slander, 234 ; 3 Black. Com. ch. viii.) This, however, seems doubtful. See Smith v. Richardson (Willes, 20 ; Bull. N. P. 7), where it is said : " When evidence of the truth of the words was oflered in mitigation of damages, Lord Macclesfield, with a great deal of indignation, re- fused to admit it." " In an action for libel it was no defense that the matter com- plained of was true, unless the defendant could show that the public was interested in the exposure." (Dig. xlviii, 19, 24 ; Spence, Origin of Laws, &c. 151.) '^ Underwood v. Parks, 2 Strange, 1200. ^ Smithies v. Harrison, i Ld. Raym. 727. § 2 12.] TRUTH. 361 fense is the truth of the defamatory matter in substance and in fact, and in the sense in which it was used and was intended to be understood. If A. says of X. that he is a thief, and C. publishes that A. said X. was a thief, in a certain sense C. would publish the truth, but not in the sense which would constitute a defense ; C.'s publication would in fact be but a repetition of A.'s words, which, as we have seen, would not be a defense (§ 210). The truth, which in such a case would amount to a defense, would be that X. was a thief' Again, if A., speaking ironically, says of X. that he is an honest man, meaning and conveying the idea that X. is a dishonest man, it would not be a justification of these words to allege that it was true X. was an honest man, but to constitute a defense the allegation required would be that it was true X. was a dishonest man. We shall give, in the following sections, some illustrations of the requirements of a justi- fication on the ground of truth, and the subject will be further illustrated under the head of Pleading (§ 355). § 212. Where defamatory allegations, whether pub- lished orally or in writing, are divisible (§ 145), but not otherwise, the defendant is permitted to justify on the ground of truth, one or some of them, less than the whole." But whether he justify the whole or a part only, the justification, as to so much as is intended to be justi- 1 Watkin v. Hall, Law Rep. 3 Q. B. 396. ^ See ante, notes to § 145, and noL- 3, p. 351, ante; and Stiles v. Nokes, 7 East, 493; Andrews v. Thornton, 8 Bing. 431 ; r M. & Sc. 670; Gregory v. Duke of Brunswick, 6 Sc. N. R. 809; Vessey v. Pike, 3 C. & P. 512 ; Van Derveer v. Sut- phin, 5 Ohio, N. S. 293 ; O'Connell v. Mansfield, 9 Ir. Law Rep. 179 ; Smith v. Parker, 13 M. & W. 459; Fero v. Ruscoe, 4 N. Y. 162. A declaration for a libel commencing " horse-stealer," and followed by a statement of facts, and concluding that the defendant published it with intent to cause it to be believed that the plaintiff had been guilty of feloniously stealing a horse ; plea, except as to the word horse- stealer, a justification, stating circumstances inducing suspicion that the plaintiff had been guilty of the fact; held, on demurrer, that the plea was insufficient. (Mountney v. Watton, 2 B. & Ad. 673.) 362 DEFENSES. [ciI. 1\. fied, must go the whole length of the charge in all its material allegations. The justification must always be as broad as the charge, and of the very charge attempted to be justified.' A charge that the plaintiff, a brewer, caused his establishment to be supplied with unwhole- some water, is not proved to be true by showing that the establishment zuas supplied with unwholesome water. To establish the truth of the charge, it must be shown the plaintiff caused the supply.^ To a charge against the plaintiff, a schoolmaster, that the decay of the school under his management was attributable to his violent conduct, it was held, on special demurrer to the plea, not a sufficient justification to allege that the plaintiff had been guilty of violent conduct toward some of his scholars ; to have amounted to a justification, it should have been shown that the decay of the school was occa- sioned by the violent conduct of the plaintiff.^ The al- ' Weaver v. Lloyd, 2 B. & C. 678; 4 D. & R. 230; Bissell v. Cornell, 24 Wend. 354; Stilwell f. Barter, 19 Wend. 487 ; Fidler z'. Delavan, 20 Wend. 57 ; Torrey V. Field, 10 Vt. 353 ; Crump v. Adney, i Cr. & M. 362 ; Burford v. Wible, 32 Penn. St. Rep. 95 ; Wilson v. Beighler, 4 Iowa, 427 ; Van Derveer v. Sutphin, 5 Ohio, N. S. 293 ; Morrow -'. McGaver, i Ir. C. L. 569; Powers v. Skinner, i Wend. 451 ; Cooper V. Barber, 24 Wend. 105 ; McKinly v. Rob, 20 Johns. 351 ; Kerr v. Force, 3 Cranch C. C. 8 ; Bennett v. Matthews, 64 Barb. 410. The plea must justify the same words as those contained in the declaration, (Skinner v. Grant, 12 Vt, 466 ; Gregory v. Atkins, 42 Vt. 237 ; Ormsby v. Douglass, 2 Abb. Prac. Rep. 407 ; 37 N. Y. 377.) "There is no such thing as a half-way justification. When several distinct things are charged (§ 145, ante), the defendant may justify as to one, though he may not be able to do so as to all ; but, as to any one charge, the justification will either be everything or nothing. If the charge be of stealing a horse, it is not half a defense, nor any part of one, to show the plaintiff took the horse by a mere trespass." (Fero v. Ruscoe, 4 N. Y. 165.) ' Fidler v. Delavan, 20 Wend. 57. A charge that plaintiff was a "cheat" and " swindler," was held justified by the fact that he sold goods for the purpose of pre- venting their seizure under an attachment for the benefit of his creditors. (Odiorne V. Bacon, 6 Gush. 185.) Saying of a merchant that his credit is bad is not justified by a plea that plaintiff would not pay his debts. (Kirwan v. Dennan, 2 Hud. & Br. 628.) ' Smith V. Parker, 13 M. & W. 459. To a declaration for a libel, charging that, by hypocritical cant, &c., plaintiff and his associates effected the incorporation of the Manhattan Bank, in which plaintiff's share of the profits was several thousand § 212.] TRUTH. 363 leged libel was in substance, that plaintiffs, an insurance company, had lost heavily on debentures ; that their history was one of outrageous extravagance and danger- ous debility ; that for years they had trembled on the verge of disaster, and that they were in an unsound and precarious condition. Plea, that plaintiffs had for several dollars ; and that plaintiff, as a member of the Senate, advocated the bill entitled "An Act for supplying the city of New York with pure and wholesome water," knowing that it contained a clause authorizing the company to carry on banking business, and when he knew that other members of the legislature were ignorant of that fact, &c., the defendant pleaded in justification, that the plaintiff was a senator on second of April, 1798 ; that such a law was passed, and that, at the time of passing said law (first of April, 1798), plaintiff, as senator, advocated the bill, knowing at the time that it contained such clause, &c. ; and that a large majority of the members of the legislature were ignorant of that fact, &c. ; and that, at the time and place first above mentioned, plaintiff held, and was owner of a large portion of the stock created by the said law, to wit, five thousand dollars ; all which acts of the plaintiff were hypocritical and deceptive, and contrary to his duty as a senator, &c. The plaintiff replied, that at the time he advocated the said law as a senator, he did not hold, and was not owner of any stock created by it ; nor had he any interest what- ever in the stock, &c. On a general demurrer to the reply the plea, was held to be bad as not being an answer to the declaration, and that the defendant having com- mitted the first fault in pleading, the plaintiff was entitled to judgment. (Spencer I'. Southwick, II Johns. 573; rev'g 10 Johns. 259, where the replication was held to be bad.) Held that a charge of incest could not be justified by alleging that plaintiff told the defendant her brother had had sexual intercourse with her. (Abshire -v. Cline, 3 Ind. 115 ; and see Long v. Brougher, 5 Watts, 437, and in note i, p. 357, ante?) It is not every act of illicit intercourse on the part of a female that will jus- tify calling her a whore. (Smith v. Wyman, 4 Shep. 13; see Sheeley v. Cockly, Sup. Ct. Iowa, April, 1876 ; contra, Alwin v. Hooker, 7 Blackf. 58.) The defend- ant, in a case of slander, admitted in his answer that, while he was conducting his own cause before a justice, and examining the plaintiff as a witness, he interrogated him : " Do you say I put you on Williams' land ? " that the witness answered, "I do," and that the defendant replied, " That's a lie." The answer further alleged that plaintiff's answer to defendant's question, and his statement that the defendant put witness on Williams' land, were untrue. Held, that the answer was not good as a justification of a charge of perjury. (Lewis v. Black, 27 Miss. 425.) A charge that plaintiff's ship was unseaworthy and had been bought by Jews to take out con- victs, is not justified by showing the ship was unseaworthy. (Ingram v. Lawson, 5 Bing. N. C. 66.) The justification should be of the meaning, not of the words merely. (Snow v. Witcher, g Ired. 346 ; Fidler v. Delavan, 20 Wend. 57.) The charge must be directly met, and not argumentatively or by inference. (/ Littledale, J., Flint v. Pike, 4 B. & C. 473 ; i Starkie on Slander, 263. ^ Maule, J., Hoare "'. Silverlock, 9 C. B. 20. § 229-] REPORTS OF JUDICIAL PROCEEDINGS. 401 matter is blasphemotis or defainatory of an individual''' ' Thus where on the trial of Carlile for publishing Paine's Age of Reason, the defendant read the whole of the book to the jury, and afterwards his wife published a full report of the trial, containing an entire copy of the Age of Reason as read to the jury ; for this publication a criminal information was granted against Mrs. Carlile, the court observing that, although as a general proposi- tion it was certainly lawful to publish the proceedings of courts of justice, yet it must be taken with this qualification, that what is contained in the publication must neither be defamatory of aji individual, tending to excite disaffection, nor calculated to offend the morals of the people.^ Although in the course of a trial it may become necessary for the purposes of justice to hear or read matter of defamatory or of immoral tendency, yet it is not competent to any persons, under the pretense of publishing that trial, to re-utter or circulate such matter. It is observed in the Sixth Report of the English Criminal Law Commissioners, that these qualifications destroy all the supposed priv- ilege. Our explanation is this : Truth is not a defense to a criminal prosecution for libel, and therefore where a report of a trial contains blasphemous, indecent, or defamatory matter, it is not the less the subject of a criminal prosecution because it is a fair or true report of a judicial proceeding. In a subsequent case,^ Maule, J., said : " I think it is impossible at this day to say that a fair account of proceedings in a court of justice, not being ex parte, but on the hearing of both sides, is not, gejier- ally speaking, a justifiable publication. / do not lay it ' I Staikie on Slander, 263. '^ Rex V. Carlile, 3 B. & Aid. 167. The publication of a fair report of obscene matter is not privileged. (Steele v. Brannon, Law Rep. 7 C. P. 268.) ^ Hoare v. Silverlock, 9 C. B. 20. 402 DEFENSES. [CH. IX. dozv7i as a imiveisal proposition ; but, as a general rule, it may be assumed that the publication of a fair account of what passes in a court of justice, not ex parte, is jus- tifiable, unless there is something to take it out of that rule." " No case has decided that a report of proceedings in a court of justice implicating the reputation of a third person is under any (all) circumstances privileged."' " There is no dictum to be met with in the books, that a man, under the pretense of publishing the proceedings of a court of justice, may discolor and garble the proceed- ings by his own comments and constructions, so as to effect the purpose of aspersing the character of those concerned."^ But we ought to protect a fair and bona fide statement of the proceedings in a court of justice,^ and perhaps the result of the authorities is, that a fair report of a trial or a proceeding in a court of justice, conducted publicly in the presence of the parties con- cerned, is conditionally privileged.'* § 230. When it is said that a fair report of a trial in a court of justice is privileged, what is meant by a fair report ? In one case it is said : "7/" a party is to be allowed to pubUsh what passes in a court of justice, he must publish the ivhole case, and not merely state the conclusion which he himself draws from the evidence," ^ and where in a report of proceedings under a commission 1 Ryalls V. Leader, Law Rep. i Ex. 298 ; and see Pittock v. O'Neill, 63 Penn. St. Rep. 253. " Spencer, J., Thomas v. Crosswell, 7 Johns. 264; and see Rish Allah Bey v. Whitehurst, 18 Law Times, N. S. 615. 3 Ryalls V. Leader, Law Rep. i Ex. 298. •i A fair account of what takes place in a court of justice is privileged. (Hearne V. Stowell, 12 AdoL & El. 718 ; 4 Per. & D. 696 ; Turner v. Pullman, 6 Law Times Rep. N. S. 130 ; Rex v. Wright, 8 T. R. 298 : Chalmers v. Payne, 2 C. M. & R. 156; Cincinnati, &c. Co. v. Timberlake, 10 Ohio, N. S. 548 ; Flint v. Pike, 4 B. & C. 84 ; Saunders v. Mills, 6 Bing. 213 ; 3 M. & P. 520 ; Lewis v. Levy, i El. B. & E. 537; Andrews v. Chapman, 3 C. & K. 286; Smith v. Scott, 2 C. & K. 580.) 5 Abbott, Ch. J., Lewis v. Walter, 4 B. & Aid. 612. § 230.] REPORTS OF JUDICIAL PROCEEDINGS. 403 of lunacy, it was stated, "The plaintiff's testimony, being unsupported, failed to have any effect upon the jury. ' ^ Mr. Jervis commented with cutting severity on the testi- mony of Mr. O.," the statement was held not privileged, and it was said that the proceedings themselves ought to have been set out, not merely the result of them.^ Yet again it has been said, that an abridged report may be a "fair report,"^ and where in an action against the pub- lisher of a newspaper for a libel, on the plea of not guilty, it appeared that the libel purported to be the account of a trial of a former action, brought by the present plaintiff against other parties for a libel, and after stating the libel in the original action, and the facts proved by the then defendants, and the summing up of the judge, it stated that the jury found a verdict for the plaintiff, with ^30 damages. No evidence was given as to any such trial having taken place in fact, or whether the report was > Roberts v. Brown, 10 Bing. 519 ; 4 M. & Sc. 407; and see Delegal v. Highley ^ Bing N C 050. Where the matter complained against professed to be a report of proceedings in a court of justice, did not profess to state facts as deposed to by the witness, but only as stated by the counsel for the prosecution-held not to be a fair report, and not privileged. (Saunders v. Mills, 6 Bing. 213 ; 3 M. & P. 520.) And where the report stated that the evidence before the magistrate entirely negatived the story of the plaintiff, which story was the statement of the plaintiff in which the imputed perjury was contained-held not to be privileged ; and a plea justifying this report on the ground that it was a fair and correct report of ^he proceedings .vhich had taken place, was held bad after verdict. (Lewis v. Levy, i EUis, B. ^ t.. .37 ) The editor of a newspaper has the right to publish the fact that an individual has been arrested, and upon what charge, but he has no right while the charge is in the course of investigation before the magistrate, to assume that the person accused is guilty, or to hold him out to the world as such. (Usher v. Severance, 20 Maine. ^ ; see Woodgate v. Ridout, 4 Fost. & F. 202 ; Kane v. Mulvany, 2 Ir. Com. Law R. 402. 2 Turner v. Sullivan, 6 Law Times. N. S. 130. A report in substance true, it ^eems, is not privileged. (Flint v. Pike, 4 B. & C. 473-) A report "outrageously wrong," is not privileged. (Blake v. Stevens, 4 Fost. & F. 232 ; il Law Times. N. S 543 ) Where the defendant, the publisher of a treatise on the " law of attorneys purporting to give the substance of the report of proceedings against the plaintiff an attorney, stated that the plaintiff had been "struck off the rolls," instead of stating as the fact was that plaintiff had been suspended for two years, held it was a question for the jury, whether this was a fair representation of the report. The jury found it was not, and the plaintiff had a verdict. {Id. ; see ante, § 213.) 404 DEFENSES. [cH. IX. fair or not. It was left to the jury to say whether the re- port, although it contained some allegations injurious to the plaintiff, was, if taken altogether, with the statement of the verdict being in his favor, injurious to the plaintiff on the face of it ; and the jury having found for the de- fendant, the court refused a rule for a new trial/ The re- port is not privileged if it in anywise discolors or garbles the proceedings, or adds (unwarranted) comments or insinuations.^ As where the report was headed " Shame- ful conduct of an attorney," ^ or "How lawyer Bishop treats his clients,"'* or "Extorting money to hush up a complaint," 5 or "Blackmailing by a policeman,"^ or "Horse stealing," ^ it was held not to be privileged. Where a statement defamatory of the plaintiff was copied from a previous publication, and published by the de- fendant, prefaced by the word " Fudge," the court left it to the jury to say whether that word was added to vindi- cate the character of the plaintiff, or merely to create an argument in favor of the defendant, in case proceedings should be taken against him for the publication.^ In an- other case the report was headed " Willful and corrupt ' Chalmers v. Payne, 2 C. M. & R. 156. - Thomas v. Crosswell, 7 Johns. 264 ; Stiles v. Nokes, 7 East, 493 ; s. c. subtionu Carr v. Jones, 3 J. P. Smith, 491 ; Flint v. Pike, 4 B. & C. 473 ; Rex v. O'Brien, Cooke & Ale. 128, 136, 143. 2 Clement v. Lewis, 3 Brod. & B. 297; affirming Lewis v. Clement, 3 B. & Aid. 702. * Bishop V. Latimer, 4 Law Times, N. S. 775. * Stanley v. Webb, 4 Sandf. 21. * Edsall V. Brooks, 17 Abb. Pr. R. 221 ; 2 Robertson, 29. ' Mountney v. Watton, 2 B. & Ad. 673. >* Hunt V. Algar, 6 C. & P. 245. Where the complaint was that the complainant had probable cause to suspect, and did suspect, that letters written to him, and his property, and also a check payable to his order, had been feloniously taken from his safe by A., at the instigation of B., a report which stated that the complainant alleged that important letters and a check had been taken from his safe by A. (plaintiff) at the instance of B., that B. was arrested and the letters found in his possession — the part in italic was untrue, but the report was held to be a fair one. (Ackerman v. Jones, 37 Sup. Ct. [5 Jones & Sp.] 42.) § 231.] REPORTS OF JUDICIAL PROCEEDINGS. 405 perjury," and it was said by the court, '^ That (the head- ing) is merely stating the charge. It may be a heading entirely innocent, simply indicating what is to follow, and it would be a question for the jury whether it is a fair and bona fide report' of the proceedings." ' A report of a judicial proceeding is not privileged if it contain in- trinsic evidence of being published with malice.^ The fact that the report affects persons not parties to the pro- ceedings, does not render it actionable as to them.^ § 231. While it is considered a principle of public convenience to allow or even to encourage reports of the proceedings on a trial, reports of preliminary proceed- ings have been discouraged and regarded as having " a tendency to pervert the public mind, and to disturb the the course of justice." "^ In England, the magistrate has ' Lewis V. Levy, i Ell. B. & E. 537. In Barber v. Bennett, MS., the report of a proceeding before a magistrate was headed "Suspicion of stealing money." The defense was a fair report, and on demurrer the Superior Court of New York held that the heading did not prevent the report being a privileged publication. '■^ Saunders v. Baxter, 6 Heisk. (Tenn.) 369. 3 Ruohs V. Backus' Next Friend, 6 Heisk. (Tenn.) 395 ; Ackerman v. Jones, 37 Sup. Ct. Rep. (5 Jones & S.) 42. * Ld. EUenborough, King v. Fisher, 2 Camp. 563 ; and see Charlton v. Walton, 6 Car. & P. 385 ; also Rex v. Fleet, i B. & Aid. 379, where a criminal information was granted against the defendant for publishing the minutes of a coroner's inquest. It was said to be highly criminal to publish ex parte accounts. Courts and judicial officers have always claimed and exercised the right to dictate whether or not the proceedings before them should be published. In the time of Edward the Third,. Lucius de Thacstead, a notary public, was committed to the Tower for merely attending in court to take a note of the proceedings between Johannes de Bourne and Ricardus de Potesgrave, and in Flint v. Pike, 4 Barn. & C. 473, Littledale, J., said it was for the court to consider whether it was lawful to publish a report of the proceedings. Lord Eldon interdicted the publication of the proceedings on the application of the poet Shelley for the custody of his children. (See Memoir of Shelley, by T. L. Peacock, and Eraser's Magazine, No. 342, 361.) So recently as 1867, a justice of the Superior Court of the city of New York, prohibited the pub- lication of proceedings had before him, and his course was approved by the other justices of that court. A coroner may prohibit the publication of proceedings had before him (Garrett v. Ferrand, 6 B. & C. 611), and so may a committing magistrate. (Cox V. Coleridge, i B. & C. 37 ; see Borthwick on Libel, 119, 121, note ; Holt on Libel, ch. 9.) The cases are more numerous where the publication of the proceed- 406 DEFENSES. • [ciI. IX. the power of conducting preliminary examinations pri- vately, and a report of such a proceeding would not be ings has been prohibited pending the proceedings. A disregard of such a prohibi- tion is a contempt. In one case. Lord Eldon remarked that when he first came into Westminster Hall, the law was well understood that it would be a contempt to publish the#proceedings of the court before they were finished. (Knight v. Knight, 1 Jac. & Walk. 167.) In Rex v. Clement, 4 Barn. & Aid. 2i3, Lord Tenterden ordered that there should be no publication of the proceedings until the several in- dictments against the defendant had been tried ; and he fined a newspaper proprie- tor £soo for disobedience to this order, in publishing an account of the first trial before the second had begun. The c»urts upheld the action of Lord Tenterden. Lord Campbell, in his Lives of the Chief Justices, vol. 3, p. 20S, gives it as his opinion, that this transaction tarnished the fame of Lord Tenterden, and that the order forbidding the publication was " impinidently " made. (See Rex Z'. Gilham, M. & M. 165 ; Brook v. Evans, 6 Jur. N. S. 1025 ; Felkin v. Ld. Herbert, 10 Jurist, N. S. 62. In New York, by statute (2 Rev. Stat. 278, § 10), " Publishing a false or grossly inaccurate report of the proceedings of a court of record is a criminal con- tempt." Any publication prejudicing the merits of a cause before it is heard is a contempt. (2 Atk. 479.) The validity of plaintiffs marriage coming in question in a suit, her father, pending the suit, advertised in a newspaper, offering a reward to any one who would produce legal proof of the marriage — held a contempt. (Pool V. Sacheverel, I P. Wms. 676.) The printers of a newspaper were committed for publishing that certain parties to a suit had turned "affidavit men." (Roach v. Gar^'an, 2 Atk. 469 ; 2 Dick. 794.) In that case reference was made to the case of a printer of a newspaper punished for publishing of a certain cause, that it was " a hue and cry after charitable uses," and to the case of Capt. Perry, punished for printing and publishing his brief before the cause came on. A party was committed to prison for publishing an advertisement reflecting on an answer in the cause. (See Cann v. Cann, 2 Dick. 795 ; 2 Ves. 520; Ex parte Crow, 2 Turn. & Ven. Pra. 231, 232. ) Where an injunction order appointing a receiver had been granted, the party obtaining the order caused printed copies of it to be dispersed among the tenants, to prevent them paying rents except to the receiver ; Lord Hardwicke refused to ad- judge it a contempt, but expressed his disapproval of the proceeding (Baker v. Hart, 2 Alk. 48S), as thus : " Nothing is more incumbent upon courts of justice than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes before the cause is finally heard. It has always been my opinion, as well as the opinion of those who have sat here before me, that such a proceeding ought to be discountenanced." Repeated by Sir W. Page Wood, V. C, Tichbome v. Mostyn, Law Rep. 7 Eq. 55, «. ; and see Daw v. Ely, Law Rep. 7 Eq. 49, in which case the solicitor in the cause had published a letter in a newspaper relating to the pending suit ; on a motion to punish said solicitor and editor for con- tempt, the motion was granted as to the solicitor and denied as to the editor. (See Coleman v. West Hartlepool R'wy Co. 8 Weekly Rep. 734 ; Ex parte ]ont%, 13 Ves. 237 ; Littler v. Thompson, 2 Beav. 129; Felkin v. Ld. Herbert, 10 Jurist, N. S. 62 ; Lechmere Charlton's Case, 2 My. & Cr. 316; Ex parte Smith, 21 Law Times, N. S. 294.) It is lawful, with decency and candor, to discuss the propriety of a ver- dict. (Rex V. White, I Camp. 359.) Publishing disparaging comments upon the § 231.] REPORTS OF JUDICIAL PROCEEDINGS. 407 privileged. But if a preliminary proceeding is carried on foribiis apertis, it would be privileged. We are not court, or its officers, or its proceedings, is a contempt. Thus, the New York Com- mon Council, being enjoined by a preliminary injunction from certain official action, passed resolutions declaring the injunction illegal, proclaiming a resolution to disre- gard it, and imputing dishonesty to the judge who granted it ; held, the resolution was a contempt. (The People v. Compton, I Duer, 512; affi'd. The People v. Sturtevant, 9 N. Y. 263 ; and see Morrison v. Moat, 4 Edw. 25.) And where an officer of a corporation had a verdict against him in an action for malicious prosecu- tion, which verdict was sustained by the court, the corporation voted him a sum of money, and passed a resolution to the effect that in instituting the prosecution in question he had been actuated by motives of public justice, this was held a reflec- tion upon the court, and a contempt. (Rex v. Watson, 2 Term R. 199.) Pending the trial of one Nixon, in the Oyer and Terminer, New York city, April, 1864, an article appeared in the New York Tribune, headed, " A judicial outrage," and which was supposed to reflect upon the conduct of the judge (G. G. Barnard) presiding on the trial of Nixon. The article was supposed to have been written by Horace Greeley, and an order issued for him to show cause before Judge Barnard why he should not be attached for contempt. Instead of showing cause, he moved for a writ of prohibition, which being denied, the following order was made : " In the Matter of Horace Greeley upon an Order to show Cause why he should not Answer for a Contempt of Court.— li. is ordered by the court, that the said Horace Greeley, now here appearing, by I. T. Williams, Esq., his counsel, answer (and the answer under oath is waived) the following interrogations, and have until Monday next, being the 25th day of April inst., at II o'clock A. M., to file answers thereto, and be then heard in this court in defen.se of the accu- sation that he published a grossly inaccurate report of the proceedings of this court in the Daily Tribune of April 14, 1864, in the language contained in and recited in interrogatory the first. '■' Interrogatory the First.— T)\& you write in manuscript the following matter, which ap- peared in page 4, in column 2, thereof, in the New York Daily Tribune of Thursday, April 14, 1864, to wit ? (" A judicial outrage." Here follows the article, portions of which contain the alleged con- tempt.) " Interrogatory Second.— H not, did you write in manuscript B.ny part thereof? " Interrogatory Third.— li not, did you see the same in manuscript or in proof before it was published ? ^•Interrogatory Fourth.— \i not, were you or not the responsible editor of the Tribune on the 14th day of April, 1864? " Interrogatory Fifth.— If you did not write or see before publication the said matter, do you know who is the author, or writer, or composer thereof, or did you not know that it was to be published ? "•Interrogatory Sixth.— li you know the said author or writer, please name him ? "Then follows a statement or report of the transactions in court, which were reported and commented on in the Tribune, and a disclaimer from the court of any complaint as to the edi- torial comments, but only as to what purports to be a report of the proceedings in court." To these interrogatories Mr. Greeley made and filed the following statement : " Horace Greeley, in the above-entitled proceedings referred to, protesting against the juris- diction of this court over his person, and over the proceedings now being taken, and insisting that they are irregular and without warrant of law, and further insisting that he ought not to be asked, and cannot legally be compelled, to answer questions upon a charge which is in its nature criminal, and for which he may be exposed to indictment, both as a misdemeanor for a contempt as well as for a libel, and further insisting that the said article, in the order to show cause in these 408 DEFENSES. [cil. I\. prepared to lay down the law that the j)iiblieati6n of preliminarv inquiries before magistrates is invariably law- ful, but we are not prepared to lay down the law that the publication of such inquiries is invariably unlawful. There is no distinction between one court and another proceedings referred to, is not a report of the proceedings of a court, but, on the other hand, is simply an editorial criticism, based upon a report of such proceedings contained in a newspaper called the Evening Express, published two days before said editorial article was published, to wit, on the izth day of April instant. " For answer to the interrogatories filed and served on him, says that he is now, and ever since its foundation has been, the principal editor of the newspaper called the Tribune, and is one of its proprietors, by being a stockholder of the corporation that publishes the same. That as such editor and proprietor he is subject to all the responsibilities that justly pertain to that relation. Believing that this avowal is a substantial answer to all the interrogatoiies propounded to him, he most respectfully declines to answer any questions that mny expose any of his associates ia the editorship and publication of said newspaper, to the discipline of this tribunal, preferring to abide the consequences, be they what they may." The court being satisfied that no disrespect was intended, discharged Mr. Greeley. As to contempts by publications reflecting on courts, &;c., see 6 Albany Law Jour. 352; He Van Hook, 3 City Hall Recorder, 64 ; J^e Spooner, 5 Id. log; Jie Strong, Jd. 9 ; lie Yates, 4 Johns. 317 ; 6 Johns. 337 ; lie Eliz. Mayer, 2 Barnard. 43 ; £x parte Jones, 13 Yes. Jr. 237 ; He Crawford, 18 Law Jour. Q. B. 225; 13 Jur. 955 ; Ex parte Turner, 3 Mont. D. & G. 523 ; Daw --. Ely, Law Rep. 7 Eq. 49; Chelten- ham R'y Car Co. 8 Id. 580 ; Tichborne v. Mostyn, 7 Id. 55 ; Re Van Sandau, I De Gex, 55; Birch v. Walsh, 10 Ir. Law R. 93; Rex v. Lee, 5 Esp. 123; Rex v. Hart, I Camp. 359; I Hawk. PI. Cr. ch. 73 ; Re Crawford, 13 Q. B. 613; Starkie on Slander, by Folkard, ch. xxxvi ; Moulton -■. Clapham, Sir W. Jones, 431 ; March on Slander, 20 ; HoUingsworth v. Duane, J. B. Wallace, 77 ; Bayard v. Passmore, 3 Yeates, 438; Respublica v. Oswald, i Dallas, 319; Richmond v. Dayton, lo Johns. 393 ; Folger v. Hoogland, 5 Johns. 235 ; In re Bronson, 12 Id. 460; The People v. Freer, i Cai. 485 ; The People v. Few, 2 Johns. 290 ; 2 Stark. Slander, ch. xiii ; Solicitor's Journal, 1864, p. 142 ; An Inquiry into the Doctrine lately Propagated concerning Attachments for Contempts, &c., by an English Constitution Crown Lawyer, London, 1769. (Historical Soc. Lib. N. V.) See a pamphlet entitled Rights of Corporations and Reporters, published at Columbia, South Carolina, A. D. 1857, containing the report of the case of Robert W. Gibbs v. Edward L Arthur and John Burdell. The city council held, in 1855, a public meeting. The plaint- iff, the editor of one of the city papers, being present, was asked by the mayor whether he had come to take notes of the proceedings. The plaintiff answering in the affirmative, the mayor ordered him to leave, which on the plaintiff's refusing to do, he was, on the mayor's orders, ejected by a police officer. The plaintiff sued the mayor and the officer, and the defense interposed was, in the first instance, that the mayor acted on a resolution of the city council forbidding the presence of re- porters at their meetings, and subsequently the defense was set up that the city council had authorized the publication of their proceedings in a paper other than that with which the plaintiff was connected. Both these defenses failed, and the plaintiff recovered damages for being ejected. § 231.] REPORTS OF JUDICIAL PROCEEDINGS. 409 as respects the right of publishing reports of their pro- ceedings, provided the proceedings be had pubhcly. and not ex parte} And where a preliminary examination is publicly conducted, in the presence of the accused, there seems to be no reason why the same rule should not apply to such a proceeding, as to a trial. No privdege can be claimed for a report of an ex parte proceeding,^ but probably it is now settled that a fair report of a pro- ceedino- before a magistrate, not being ex parte, x'^ privileged. It being shown that the proceeding is ju- dicial in a public court, and not ex parte, a fair report of it is privileged. Thus, in an action for libel, it ap- peared that the defamatory matter was published in a fair report of proceedings before two judges at cham- bers on applications under the bankrupt act, 5 & 6 Victoria, chapter 122, and it was held that the proceed- ing was judicial, and the report privileged.^ And in respect to proceedings in jail under the same statute, and before a registrar in bankruptcy, it was held that the jail was a public court, and the proceedings judicial, and the report being a fair one, was privileged, al- though it affected a person not a party to the pro- ceedings.* A committee of the House of Lords is a 1 Lewis V. Levy, 36 Law Jour. R. Q. B. 282 ; i El. B. & E. 537- > Publishing the contents of an ex parte affidavit, made to obtain t^e plaintiffs arrest is not privileged as a report of judicial proceedings. (Cmcmnati. &c. Co^^ T lb rlake. 10 Ohio. N. S. 548.) Report of ex parte preliminary P-ceedings no privileged (Duncan v. Thwaites. 3 B. & C. 556; 5 D. & R. 447 ; Rex v. Lee 5 Esp 123 Currie .. Walter, i B. & P. 5^3 ; Huff .. Bennett, 4 Sandf. 127 Stanley ! Webb,' 4. Sandf. 2X ; 8 N. Y. 209 ; Matthews .. Beach. 5 Sandf. 256 ; Hoare J^ Silverlock. 9 C. B. 20 ; Ackerman .. Jones. 37 Superior Ct. Rep. C^Jones & S ] 42.) It was held by Martin, J., in Pinero v. Goodlake (15 Law Times, N. S. 676), that a fair report of proceedings before a magistrate was privileged. 3 Simpson V. Robinson. 12 Adol. & El. N. S. 511 ; Smith v. Scott. 2 Car. & K. ^ ""'^ Ryalls V. Leader. Law Rep. i Ex. 296. Reports of proceedings in the bank- ruptcy court said to be privileged. (Behrens .. Allen. 3 Fost. & F. I35; and by Cockbu n Ch. J., in Wason .. Walter. Law Rep. 4 Q- B. 93-) " Our law of hbel 4IO DEFENSES. [cif. IX. public court ; a report of their proceedings is privileged,' and so is a report of testimony taken before an investi- gating committee of Congress.^ A report of the pro- ceedings before a grand jury was held not to be privi- leged.3 The register of protests of bills and notes in Scotland, established by statute, was held a public docu- ment, to which every one had a right of access, and the publication of which was privileged/ Where one who has, in many respects, only gradually developed itself into anything like a satisfac- tory and settled fonn. The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized. Comments on government, on ministers and officers of state, on members of both Houses of Parliament, on judges and other public functionaries, are now made every day, which half a century ago would have been the subject of actions or ex officio informations, and would have brought down fine and imprisonment on publishers and authors. Vet who can doubt that the public are gainers by the change, and that, though injustice may often be done, and though public men may often have to smart under the keen sense of wrong inflicted by hostile criticism, the nation profits by public opinion being thus freely brought to bear on the discharge of public duties? Again, the recognition of the right to publish the proceedings of courts of justice has been of modern growth. Till a comparatively recent time the sanction of the judges was thought necessary even for the publication of the decisions of the courts upon points of law. Even in quite recent days, judges, in holding publication of the proceed- ings of courts of justice lawful, have thought it necessary to distinguish what are called ^jf /rtr/^ proceedings z.% 3i probable exception from the operation of the rule. Vet ex parte proceedings before a magistrate, and even before this court, as, for in- stance, on applications for criminal informations are published every day, but such a thing as an action or indictment founded on a report of such an ex parte pro- ceeding is unheard of, and, if any such action or indictment should be brought, it would probably be held that the tine criterion of the privilege is, not whether the report was or was not ex parte, but whether it was a fair and honest report of what had taken place, published simply with a view to the information of the public, and innocent of all intention to do injury to the reputation of the parly affected." ' Kane v. Mulvany, 2 Ir. Com. Law, 402. * Terry v. Fellows, 21 La. An. 375. 3 McCabe v. Cauldwell 18 Abb. Pr. R. 377. As to report of a coroner's inquest, see East v. Chapman, M. & M. 46. The publication of a report of commissioners appointed to inquire into corporations, held not to be privileged. (Charlton v. Wal- ton, 6 C. & P. 385.) A statement in a printed sheet issued by the police commis- sioners, to members of the force, to the effect that plaintiff had been dismissed from his situation under said commissioners, as inspector of hackney carriages, for fraud in his accounts, held not privileged. (Jackson v. Mayne, 19 Law Times, N. S. 399.) A publication of a report of an inspector of charities, under the charitable trust act, held not to be privileged. (Cox v. Feeney, 4 Fost. & F. 13.) * ^ Fleming v. Newton, i CI. & Fin. N. S. 363. §§ 232,233.] CHURCH DISCIPLINE. 4I I had been convicted of murder and sentenced to death, while on the scaffold, and just before his execution, made a speech, in which he reflected upon one of the counsel who defended him on his trial, it was held that a report of this speech, published in New York by the defendant, in a newspaper of which he was editor, was not privileged either at common law or by the statute.' § 232. Where the judicial proceeding is public, and not ex parte, the report of what takes place is not the less privileged because published pending the proceeding, and before it has terminated ; thus where a declaration for libel set out, in three separate counts, reports of three separate days' proceedings, respectively (on two adjourn- ments), before a magistrate ; the report of the first day stating that the plaintiff was charged with perjury, and an adjournment, but reserving the report ; the report of the second day also stating an adjournment in language intimating that there would be a report of the proceed- ings of the day to which the adjournment was ; and the third stating the discharge of the party charged ; and the jury found generally that the reports were fair and cor- rect — held, that the reports of the first two meetings did not lose the privilege by reason of the proceedings there reported not being final." And in the same case, if we correctly interpret the report, it was held that the privi- lege of publishing a report of preliminary proceedings is not lost by the fact that the proceeding terminates in the discharge by the magistrate of the party accused. § 233. By becoming a member of a church the in- dividual tacitly consents to submit to the church dis- ' Sanford v. Bennett, 24 N. Y. 20. See statute referred to in note to § 229, ante. If a highwayman shall at the gallows arraign the justice of the law, and of those who condemned him, he who publishes (the highwayman's language) shall not go unpunished. (4 Read. Stat. Law, 154; Dig. LL, 32.) * Lewis V. Levy, i El. B. & E. 537. 412 DEFENSES. [CH. IX. cipline.' The proceedings of the church to enforce its discipline are quasi judicial, and therefore those who com- plain, or give testimony, or act, or vote, or pronounce the result, orally or in writing, acting in good faith and within the scope of the authority conferred by this jurisdiction, and not falsely or colorably making such proceedings a pretense for covering an intended scandal, are protected by law.^ One Miss Mary Jerom was the daughter of Quaker parents, and she was educated in that persuasion. She having acted in disobedience to the rules of the con- gregation, by frequenting places of public diversion and otherwise, she was warned to discontinue such practices, whereupon she absented herself from the meetijigs, and declared that she no longer regarded herself as one of their body. After various fruitless attempts to reclaim her, the society proceeded in the usual way to a sentence of expulsion, which was reduced to writing, approved at a monthly meeting, and read by the defendant Hart, as clerk of the meeting, at a subsequent meeting for wor- ship. This sentence of expulsion recited that the prose- cutrix was born of Quaker parents, and educated in that society, but that, not regarding the truth they professed, she had imbibed erroneous notions ; divers parts of her conduct were inconsistent with a life of self-denial ; and the futile attempts made to reclaim her ; then declared her not a member of the society, until by repentance she acknowledged scripture doctrine. Miss Jerom, hearing of this sentence, sent her servant to the defendant for a ^ Remington v. Congdon, 2 Pick. 310 ; Jarvis v. Hathaway, 3 Johns. 180 ; Holt on Libel, 236; Shelton v. Nance, 7 B. Monr. 128; Whittaker v. Carter, 4 Ired. 461; see Brit. Quar. Rev. October, 1876, art. Amer. Eccl. Law. ^ Farnsworth v. Storrs, 5 Cush. 412; Fairchild v. Adams, 11 Cush. 549 ; Smith V. Youmans, 3 Hill (So. Car.) 85. If words, actionable in themselves, be spoken between members of the same church, in the course of their religious discipline, and without malice, no action will lie ; and the jury are to decide whether there be malice or not. (Jarvis z'. Hathaway, 3 Johns. iSo ; and see Whitaker v. Carter, 4 Ired. 461.) § 234-] CHURCH DISCIPLINE. 413 copy, which he sent her under cover. After faihng in an appHcation for a criminal information, Miss Jerom pro- cured the defendant to be indicted, tried, and convicted for Hbel. On motion for a new trial, the court held that, no express malice being shown, the jury ought to have been directed to acquit the defendant, and ordered a new trial.' A vote passed by a board of trustees of a church, censuring C, a former treasurer of such church, for ob- stinately retaining the church funds received by him as such treasurer in his hands, and refusing to pay them over, is privileged ; but if published maliciously, will sup- port an action.^ A communication of a church member, complaining of the conduct of his clergy, addressed to their common superior, is privileged.^ And if a select- man, acting in his official capacity, accuse a member of the church of voting twice on the same ballot, it is priv- ileged. "> § 234. The privilege extended to proceedings to en- force church discipline applies only to cases where both parties are members of the church. A complaint, to a church, against one of its members by one who is not a member, is not privileged ; neither would such a com- plaint by a member against one who is not a member, be privileged; 5 but if the party accused voluntarily submits ^ Rex V. Hart, i W. Blacks. 386; 2 Burns' Eccles. Law, 779. ■^ Holt V. Parson, 23 Texas, g. In an action for libel, the defendant pleaded that the words were used without malice, in a complaint to a church, of which both parties were members, for the purpose of bringing the plaintiff to trial before a com- mittee thereof. The plaintiff replied that the charge was made willfully and mali- ciously, to which replication the defendant demurred. Held, that the replication was sufficient, although it contained no averment of want of probable cause. (Dial v. Holter, 6 Ohio, N. S. 228.) ^ O'Donaghue v. McGovern, 23 Wend. 26. •* Bradley v. Heath, 12 Pick. 163. Words spoken by a pastor at a church meet- ing, concerning one of his congregation, held to be privileged. (Kleizer v. Symmes, 40 Ind. 562.) ^ Coombs V. Rose, 8 Blackf. 155. 27 414 DEFENSES. [CH. IX. himself to the discipHne of the church, all the proceed- ings are privileged.' Where a vote of excommunication from a church has been passed, and the offender thereby declared to be no longer a member, a subsequent reading of the sentence by the pastor, in the presence of the con- gregation, is privileged." § 235. The publication of defamatory matter is not privileged because made at a public meeting.^ But at meetings of public bodies having certain duties to per- form, what is said in the exercise of such duties, perti- nent to the matter in hand, and within the jurisdiction of the meeting, is privileged. Where, at a meeting of a board of public officers, the commissioners of the New York Central Park, and in the course of a debate as to employing the plaintiff to do certain work for said com- missioners, the defendant, a member of the board, ob- jected to the employment of plaintiff on the ground that he had published an obscene libel ; held, that the charge, being pertinent to the subject under discussion, was priv- ileged, and to entitle the plaintiff to maintain an action in respect of it, he must establish that the charge was made without reasonable or probable cause.'* The de- ' Remington v. Congdon, 2 Pick. 310. ' Farnsworth v. Storrs, 5 Cush. 412. ^ Lewis V. Few, 5 Johns, i ; Anthon, 75 ; Davison v. Duncan, 7 El. & Bl. 229 ; 3 Campbell's Ch. Justices, 64, note; see "Libel as applied to public discussion," 15 Quar. Law Mag. & Rev. 193. Davison v. Duncan, was questioned in Davies v. Duncan, 43 Law Jour. C. P. 187. * Viele V. Gray, 10 Abb. Pr. R. i ; 18 How. Pr. R. 550. At a meeting of the proprietors of a fishery, a charge made by one proprietor against another, of having violated the law regulating the fishery, was held to be privileged. (Bennett v. Barr, 8 Law Times Rep. N. S. 857.) The assessors of a town having been sued, applied to the town for reimbursement of their expenses incurred in defending, on the ground that they were sued in their official capacity. This was opposed because the suit was brought against them for making false answers, under oath, to interroga- tories proposed to them in another suit. The statement of a voter and tax-payer that they had perjured themselves therein, made at a town meeting held to consider their application, is privileged if made in good faith and without actual malice. (Smith V. Higgins, 82 Mass. 251.) Where a rate-payer was unable to attend a par- g 235.] PUBLIC MEETING. 4^5 fendant at a parish meeting for the nomination of over- seers, imputed to the plaintiff, who was put up for re- election, that whilst holding ofhce previously, he had misappropriated the parish moneys ; it was held to be privileged if made bona fide.' A shareholder of a rail- way company, having summoned a meeting of the share- holders, to which meeting he invited the reporters to the press to attend, and at which meeting he made defama- tory comments on the plaintiff, one of the directors, in his connection with the company, held that although they might have been privileged, if made at a meeting composed only of shareholders, they were not privileged at a meeting at which other than shareholders were present." The plaintiff being one of the overseers, and the defendant assistant overseer of a township, a rate was made on a railway company, against which it appealed. Shortly before the hearing of the appeal, a meeting of the overseers was called to consider the matter, when it was resolved to abandon the rate, and a vestry meeting was called to choose fresh overseers and consider the pro- priety of removing the defendant from his office. At that meeting the plaintiff imputed to the defendant neg- lect of duty in collecting the rates, and having made a rate which the overseers were obliged to give up, to which the defendant retorted by saying that the plaintiff had sold the rate-payers to the railway company, and had received a bribe from them for that purpose. After the meeting a person remarked to the defendant that he ought not to have said what he did without some founda- tion for it ; to which the defendant repHed that he be- ish meeting, assembled to investigate the accounts of a parish constable, and he wrote a letter to the meeting, coiitaining defamatory matter respecting such constable, such letter was held prima facie privileged. (Spencer v. Amerton, I Moo. & Rob. 470 ; and see § 239, post.) George v. Goddard, 2 Fost. & F. 689. 2 Parsons v. Surgey, 4 Fost. & F. 247. 41 6 DEFENSES. [CH. IX. lieved there was reason for thinking that the plaintiff had had communications with the officers of the railway com- pany. An action having been brought for the words used by the defendant at the meeting, query, whether the words were spoken under circumstances which rendered them a privileged communication ? but held, assuming they were, there was evidence of malice proper to be left to the jury.' But it was held not to be a justification of a charge of official misconduct against a town officer that the charge was made in open town meeting, by the de- fendant, an inhabitant of the town, while animadverting on the conduct of the plaintiff as such officer, relative to a subject then before the meeting, in which the defendant was interested as a qualified voter. ^ And where a reso- lution was introduced into a county medical society, for the expulsion of a member, upon the ground that he had procured his admission by false pretenses, and without the legal qualifications, it was held not to be privileged, because the society had no power to expel a member for such a cause.3 Where the defendant, one of the select- men of the town, while he was acting as a public officer, and at an election in an open town meeting, charged the plaintiff with having put two votes into the ballot-box, it was held that the charge was privileged, principally on the ground that the defendant had a duty to perform, and that the charge was made in the performance of his duty.'* It was held^ that defamatory matter concerning a Roman Catholic priest was not privileged by the fact of its having been spoken at a meeting held to petition Parhament against making a grant towards the support of a Roman Catholic college. ^ Senior v. Medland, 4 Hurl. & N. 843 ; 4 Jur. N. S. 1039. ^ Dodds V. Henry, 9 Mass. 262. ' Favvcett v. Charles, 13 Wend. 473. ■• Bradley v. Heath, 12 Pick. 163. '" Hearne v. Stowell, 12 Adol. & El. 719. § 236.] PUBLIC MEETING. 4^7 § 236. Nor is the publication of defamatory matter privileged because made in a true report of the proceed- ings of a public meeting, for, "there is no analogy be- tween the proceedings at a public political meeting, and the proceedings in a court of justice;"' and therefore it has been held that a publication of defamatory matter made in a report of proceedings at a public meeting called to petition Parliament against making a grant in support of a Roman Catholic college, was not privi- leged." And where the defamatory matter was contained in a report of the proceedings of a vestry meeting, it was held not to be privileged; thus, an EngUsh statute i8 and 19 Vict. ch. 120, provided for the appointment of a medical officer in each parish, who was to report from time to time to the vestry, and such reports were to be published annually, in the month of June. A report was made to the vestry in February, and in the same month published by the defendant in a newspaper of which he was the editor and proprietor, in and as part of the pro- ceedings of the vestry. This report contained a charge of misconduct on the part of the plaintiff; he sued the defendant for libel, and it was held that the publication, being a true report of what took place at the vestry, did not render it privileged. ^ But in another case, a report 1 Lewis V. Few, 5 Johns, i. 2 Hearne v. Stowell, 12 Adol. & El. 719 ; 4 Per. & D. 696 ; Wilson v. Reed, 2 Fost. & F. 149 ; Pierce v. Ellis, Ir. Rep. 6 Com. Law, 55 ; Davidson v. Duncan, 7 El. & B. 231. 3 Popham V. Pickburn, 7 Hurl. & N. 891. Query, would the publication have been privileged had it been made by the defendant after the report had been pub- lished by the vestry, as required by the statute ? {Id.) At a meeting of a board of poor law guardians, a member of the board reported a complaint against the plaintiff, the medical officer of said union, that he did not promptly respond to calls made upon him to attend the sick poor requiring his attention. The defendants, the proprietors of a newspaper, published a true account of the proceedings at said meeting, including the said complaint ; held it was not privileged : that it was not concerning a person whose position and character were of general interest to the whole country, nor was the subject-matter one of general interest to the whole coun- 41 8 DEFENSES. [CH. IX. of the condition of town schools, made and published as required by law, by the superintending school commit- tee, and charging the prudential committee of the district with unlawfully employing a teacher, and putting her in charge of a school, taking possession of the school house, and forcibly excluding the general committee and the teachers employed by them, but not imputing corrupt motives, held privileged.' And so it was held that the publication, by a member of the Massachusetts Medical Society, of a true account of the proceedings of that society in the expulsion of another member for a cause within its jurisdiction, and of the result of certain suits subsequently brought by him against the society and its members, on account of such expulsion, is privileged ; although it speaks of the expelled member as "the offender," and remarks that "the society has vindicated its action in this case, and its right to act in all parallel cases. "^ § 237. The right to seek redress is not limited to seeking it in a court of justice.^ Every one who is ag- try ; that it was not enough that plaintiff filled a public character of a limited kind, in a limited district, or that the subject-matter was a matter of interest to a small portion of the public, or to the public in a limited district. (Purcell v. Sowler, Law Rep. I C. P. Div. 781.) ^ Shattuck V. Allen, 4 Gray, 540 ; and see Haight v. Cornell, 15 Conn. 74. Where the defendant made a speech at a public meeting, and afterwards handed a copy of it to the reporters, who published it in a newspaper, held that such publication was not privileged. (Pierce v. Ellis, Ir. Rep. 6 Com. Law, 55.) ^ Barrow v. Bell, 7 Gray, 301. 2 Padmore v. Lawrence, 11 Adol. & El. 380; 3 Per. & D. 209; Kine v. Sewell, 3 M. & W. 297 ; Robinson v. May, 2 J. P. Smith, 3. Semble, that words spoken to a police officer engaged in an endeavor to detect a crime, are privileged. (Smith v. Kerr, i Barb. 155. See, however, Dancaster v. Hewson, 2 M. & R. 176.) Plaintiff assaulted the defendant on the highway ; defendant, meeting a constable, requested him -to take charge of the plaintiff, and the constable refusing to arrest the plaintiff" unless the defendant would charge him with felony, the defendant did so ; held, on demurrer to the defendant's plea setting up these circumstances, that they did not render the charge of felony a privileged publication. (Smith v. Hodgekins, Cro. Car. 276; and see Allen v. Crofoot, 2 Wend. 515; Lathrop v. Hyde, 25 § 237-] REDRESS OTHER THAN JUDICIAL. 4^9 grieved, or who has reasonable and probable cause to be- lieve himself aggrieved, may, in good faith, seek redress from any body, officer or individual, having jurisdiction, power or authority to redress the wrong or supposed wrong (§ 238 a). Whatever is spoken or written in such a pursuit for redress is privileged. For defamatory mat- ter published in seeking relief other than from a court of justice, the action is said to be analogous to an action for malicious prosecution,' with a distinction or supposed distinction which may be illustrated as thus : that redress for mahcious prosecution cannot be had in an action in form for slander or libel (§ 220), while for defamatory matter published in seeking redress from any source other than a court of justice, redress may be had in the form of an action for slander or libel. To an action in form of slander or libel, it is a defense merely to show the publication was made to a court of justice ; but it is Wend 448.) In Johnson v. Evans, 3 Esp. 32, plaintiff, a female, had been in the employ of defendant, and on discharging her, some difference arose, the defend- ant charging the plaintiff with endeavoring to cheat him respectnig her wages, and said, " She is a thief, and tried to rob me of part of her wages." Defendant sent for a constable to give plaintiff in charge, and repeated these words to the con- stable, but did not give plaintiff in charge ; the only publication proved was to the constable, and plaintiff was nonsuited. In an action of slander agamst the defend- ant for charging the plaintiff with theft, where it appeared that the words spoken were only expressions of suspicion, founded upon facts detailed by him at the time, made prudently and in confidence to discreet persons, in good faith, with a view to their aiding him to detect the offender and recover the property stolen, it was held that they were not slanderous, but justifiable and proper. (Grimes v. Coyle, 6 B. Mon. 301 ) The defendant having some cause to suspect the plaintiff of dishonesty, went to plaintiff's relations and made to them a charge of theft against the plaintiff; and it appearing that the object in making the communication was rather to compromise the felony than to promote inquiry, or to enable the relations to redeem the plaint- iff's character, the publication was held not privileged. (Hooper v. Truscott, 2 Bing. N. C. 457.) The defendant, having lost goods by theft, went to the plaintiff s house with a police officer, and, in answer to questions as to the object of his visit accused plaintiff of the theft, and stated the grounds of his belief. In an action of slander held, that this was a privileged communication, if made bona fide, unless express malice were found by the jury. Nor is the privilege defeated by the fact that the charges were made in the presence of third parties and m an intemperate manner. (Brown v. Hathaway, 13 Allen [Mass.] 239 I see Davies v. Snead, Law Rep. 5 Q. B. 608 ; McCann v. Benjamin, S. C. L. R. [Sup. Ct. Low. Can.] 13. 1 Howard v. Thompson, 21 Wend. 319; Cook v. Hill, 3 Sandf. 349-) 420 DEFENSES. [cH. IX. not a defense merely to show that the publication was made upon an application for redress other than to a court of justice, unless it be also shown that the forum addressed had jurisdiction and the application was hon- estly made, i. e., in good faith and with reasonable and probable cause. To support malicious prosecution, be- sides showing that the prosecution has terminated, it must be shown that the publication was without prob- able cause a7id\\\t\\ malice, /. c, bad motive ; bad motive alone will not support the action, if there was probable cause ; while to support an action for a publication in seeking redress extrajudicially, it is sufficient to show either want of jurisdiction in the forum addressed, or want of probable cause or bad motive ; for the right to appeal to a court of justice is general and ivithout refer- ence to the motive wherever probable cause exists ; but the right to seek redress, extrajtidicially, is limited to seeking it with probable cause and with a good motive from a body, officer or individual having jurisdiction or power to afford relief. In a case where the defendant had written defamatory matter to the superior of the plaintiff, an ecclesiastic, it was alleged in the complaint that the publication was made maliciously ; the plea was in effect merely that the publication was made in seeking redress from an officer having jurisdiction to grant relief. On demurrer, the plea was overruled, and it was held that to constitute a defense, the plea should have gone on and alleged reasonable and probable cause for making the complaint, and that it was made with good motives.' It has been held that within the foregoing privilege, are : petitions to the sovereign,^ or to Parliament,^ or to the ' In O'Donaghue v. McGovern, 23 Wend. 26, and in Perkins v. Mitchell, 31 Barb. 461, a distinction is made between a complaint made to a court of justice and a complaint made elsewhere. - Hare v. Meller, cited i Starkie on Slander, 254. ^ Lake v. King, l Lev. 240, and ante, note 2, p. 379. § 237-] REDRESS OTHER THAN JUDICIAL. 42 I Legislature,' or to the lieutenant governor of a province (Canada),^ or to the governor of a State,^ a memorial presented to a board of excise,'^ or a fire marshal,^ a pe- tition to a council of appointment praying the removal of the plaintiff from office ;' a memorial to the post office department charging fraud on the plaintiff", a successful bidder for post office patronage ; ^ a letter to the secre- tary of war, with the intent to prevail on him to exert his authority to compel the plaintiff" (an officer in the army) to pay a debt due from him to defendant ; ^ a letter to the superior officer of the plaintiff", having power to remove him, and charging him with fraud in his office ; ' a letter written to a bishop informing him that a report was current in a parish in his diocese, that the plaintiff", ' Reid V. Delorme, 2 Brevard, 76. "^ Stanton v. Andrews, 5 Up. Can. Q. B. Rep. O. S. 211. 3 Gray v. Pentland, 2 S. & R. 23 ; 4 Id. 420 ; and see Rogers v. Spaulding, i Up. Can. Q. B. 258 ; Corbett v. Jackson, Id. 128 ; Larkin v. Noonan, 19 Wis. 82. 4 Vanderzee v. McGregor, 12 Wend. 545. 5 Newfield v. Copperman, 15 Abb. Pr. R. N. S. 360. « Thorn v. Blanchard, 5 Johns. 508. Where the complaint is to a person com- petent to redress the grievance, no action lies against the publisher, whether his statement be true or false, or his motives innocent or malicious. {Id. ; see Harri- son V. Bush, 5 El. & Bl. 344.) Representations made to the Tsung-li-Yamen, the chief officer of the foreign board at Pekin, held privileged. (Hart v. Von Gum- bach, Law Rep. 4 Pri. C. Cas. 439). and so of a petition for removal of a sheriff. (Larkin v. Noonan, 19 Wis. 82.) ■» Cook V. Hill, 3 Sandf. 341. A letter of complaint written to the postmaster general, bona fide, of even imaginary grievances, would be privileged ; and the de- fendant, under the general issue, may show that it was written under such circum- stances as would make it a protected communication. (Woodward v. Lander, 6 C. & P. 548.) ^ Fairman v. Ives, 5 B. & Aid. 643 ; i D. & R. 252. » Howard v. Thompson, 21 Wend. 319 ; Blake v. Pilfold, i M. & Rob. 198. A petition of parties interested, to the proper authorities, against the appointment of one on the ground of his bad character, as disqualifying him for the appointment, is not actionable as a libel. (Harris v. Harrington, 2 Tyler, 129.) A letter from an inhabitant of a school district, to the school committee, complaining of a school teacher, is conditionally privileged. (Bodwell v. Osgood, 3 Pick. 379 ; and see Maitland v. Bramwell, 2 Fost. & F. 623 ; Harwood v. Keech, 6 Sup. Ct. Rep. [T. & C] 665 ; II Id [4 Hun], 389.) 42 2 DEFENSES. [CH. IX. the incumbent of a district in that parish, had assaulted a schoolmaster ; ' charges preferred to a lodge of Odd Fel- lows by one member of that lodge against another, and for an offense which the lodge under its rules had the right to investigate.'' The trustees of the College of Pharmacy in New York, appointed a committee to in- quire and report upon the capacity of the plaintiff as diTig inspector of the port of New York, with a view upon the facts reported to petition for the removal of the plaintiff from his office. The committee made a written report to the board of trustees, who forwarded it to the secretary of the treasury — held that the report was privileged.3 The defendant, the deputy governor of Greenwich Hospital, wrote and printed a large vol- ume, containing an account of the abuses of the hos- pital, and reflecting with much asperity upon many of its officers ; he distributed copies of this book to governors of the hospital only; an application for a criminal infor- mation against the defendant was denied, with the obser- vation that the distribution had been only to persons competent to redress the grievances complained of.* ' James v. Boston, 2 C. & K. 4. If written merely with the honest intention of calling the attention of the bishop to a rumor in the parish, which was bringing scandal on the church, and not from any malicious motive ; and it is not material that the writer of the letter did not live in the district to the incumbent of which the letter refers. (/ Lawless v. Anglo-Egyptian Cotton Co., Law Rep. 4 Q. B. 262. ' The defendant was a baker who employed several men to deliver bread to his customers. The plaintiff was one of the men so employed. After plaintiff had left defendant's employ, defendant published a notice to the effect : The plaintiff hav- ing left my employ, and taken upon himself the privilege of collecting my bills, this is to give notice, he has nothing further to do with my business. This was held to be privileged. (Hatch v. Lane, 105 Mass. 394.) The plaintiff had been agent of defendant. After he left defendant's employ, defendant published in a newspaper an advertisement, headed " Caution," and containing the words, " N. B.— Notwith- standing the false statements of [plaintiff] to the contrary, he is no longer an agent of this company," with an innuendo, meaning that plaintiff had falsely and for im- proper purposes pretended to be an agent of the defendant ; and in another count the meaning alleged was that plaintiff had been dismissed for improper conduct— held that the publication was privileged. (HoUiday v. Ontario Farmers' Mut. Ins. Co. 33 Up. Can. Q. B. Rep. 558 ; and see Gassett v. Gilbert, 6 Gray [Mass.] 94 ; Mulligan v. Cole, Law Rep. 10 Q. B. 55q.) To create a privileged occasion, there must be not only an interest in making the communication, but also a legitimate interest in the matter communicated. (Simmonds v. Duane, Ir. Rep. 5 Com. Law, 358.) * Rex V. Enes, Andr. 229, and see ante, § 226. § 240.] SELF-JUSTIFICATION. 431 ceased to deal with him, alleging as a reason that defend- ant had made charges against him, A., for meat which had not been delivered at A.'s house, the defendant wrote a letter to A., protesting his innocence of the al- leged overcharge, and stating, in effect, that the meat had been improperly disposed of by the defendant's servants. For writing this letter, the plaintiff— whose wife was a servant in the family of A. — brought an action for libel ; it was held that if by the letter the de- fendant meant bona fide to defend himself, it was a con- ditionally privileged publication.' The plaintiff, an at- torney's clerk, made an affidavit in a suit in which the defendant appeared for an opposite party. The affidavit reflected upon the defendant, whereupon defendant wrote to plaintiff's employers complaining that the affi- davit of plaintiff suppressed the truth. The defendant's letter held a conditionally privileged publication." And where O., having had no previous knowledge of B., a trader, sold him goods to the amount of ^62 lOi-., at two months' credit — upon going to B.'s shop at the expiration of the credit, A. found that the whole stock in trade, in- cluding a portion of the goods sold by him, had been sold by auction the previous day, by B.'s desire, and at a reduction of 30 per cent., and that the proceeds were in the hands of S., the auctioneer. Upon inquiry, A. could not learn where B. was to be found. He thereupon went to his attorneys, and they, on his behalf, served on S. a ^ Coward V. Wellington, 9 C. & P. 531. The prosecutor published in a news- paper matter reflecting upon the character of A. The defendant, an attorney, and the attorney for A., published a counter statement,— held that if such statement was honestly intended to vindicate A., it was privileged. (Reg. v. Veley, 4 Fost. & F. 1117.) Defendant, a member of a church, was appointed, with plaintiff and other members of the same church, on a committee to prepare a Christmas festival. De- fendant declined to serve, and being asked why, said that C. W., another member of the committee, a married man, had the venereal disease ; he had been with plaintiff— held not a privileged communication. (York v. Johnson 116 Mass 482.) - Ruckley v. Kiernan, 7 Ir. Law Rep. X. S. 75. 432 DEFENSES. [CH. IX. notice not to part with the proceeds of the sale, the said B. having committed an act of bankruptcy. B. had, in fact committed no act of bankruptcy, the goods having been sold for the purpose of his retiring from business. Held, by Tindal, C. J., Coltman, J., and Erie, J., (Cress- well, J., dissentiente), that A. had such an interest in serving the notice as to render it a privileged communi- cation, if it was served with good faith and under the bona fide belief that B. had committed an act of bank- ruptcy.' Where the defendant published an advertise- ment as follows : "Ten guineas reward. Whereas, by a letter received from the West Indies, an event is stated to be announced by a newspaper that can only be inves- tigated by these means — this is to request that if any person can ascertain that J. D. [the plaintiff, describing him] was married previous to 9 a. m. on, &c., and will give notice to J. [the defendant], he shall receive the reward " — held, that if the publication was with the bona fide view of finding out the fact referred to, it was privi- leged, and the jury found a verdict for the defendant.^ And where the libel was contained in an advertisement stating the issue of process against the plaintiff, and that he could not be found, and offering a reward for such information as should enable him to be taken ; plea, that a capias had been issued and delivered to the sheriff, and that the plaintiff kept out of the way, and that the ad- vertisement had been inserted at the request of the party suinor out the writ, to enable the sheriff to arrest ; held a sufficient defense. ^ The plaintiff had a litigation with ' Blackham v. Pugh, 15 Law Jour. Rep. 290, C. P. ; 2 C. B. 611 ; approved, Davies v. Snead, Law Rep. 5 Q. B. 511. * Delany v. Jones, 4 Esp. 191. In Lay v. Lawson, 4 Adol. & El. 798, Ld. Denman, referring to Delany v. Jones, said : "I have great doubt whether, there, the interest which the wife had in the inquiry could justify the offering a reward in a news- paper." (See Finden v. Westlake, Mo. & Malk.'46i.) s Lay V. Lawson, 4 Ad. & El. 795. § 240.] SELF-JUSTIFICATION. 433 an insurance company of which the defendant was the agent. The plaintiff pubhshed a pamphlet accusmg the directors of the company of fraud, &c. This was met by a pamphlet published by the directors. Afterwards, a person desirous of effecting an insurance, inquired of defendant as to the truth of the charges contained in the plaintiff's pamphlet, and thereupon the defendant handed to such person a copy of the pamphlet published by the directors ; for this the plaintiff sued the defendant, and it was held that the defendant's act was prima facie privi- leged, and that if he acted without malice, no action could be maintained.' In an action for libel, in publish- ing of plaintiff, in a newspaper, imputations of untruth- fulness, insolvency, and conduct discreditable to his posi- tion as a poor law guardian ; plea, that defendant was medical officer of the union in which plaintiff was guard- ian, and he, defendant, having as part of his official duties, caused the seizure of certain diseased meat, &c., for which seizure he had been sued, and he had incurred certain costs in his defense ; and that, at a meeting of the board of guardians held subsequently, plaintiff knowing that the proceedings at such meeting would be reported in the newspapers, and for the purpose of having such statement published, plaintiff stated, as part of the pro- ceedings of said meeting, that defendant had acted wrongly in causing such seizure, and that his costs ought not to be paid ; that these statements were afterwards published in a newspaper ; and that, to prevent credit being given to said statements by the public, and in self- defense, defendant had published the alleged libel, be- lieving the same to be true and without malice — on demur- rer, the plea was held bad." An underwriter, in discussing ^ Koenig v. Ritchie, 3 Fost. & F. 413. 2 Murphy v. Halpin, Ir. Rep. 8 Com. Law, 127. And the case was distinguished from O'Donoghue v. Hussey (Ir. Rep. 5 Com. Law, 133), in which it was held : " If 434 DEFENSES. [CH. IN. with the agent of the assured a claim for a total loss, made a statement purporting to be founded upon a letter implying a design on the part of plaintiff to make a dis- honest claim ; this was held to be privileged, unless made with an intent improperly to reduce plaintiff's claim.' Plaintiff, a member of a church of which C. was curate, was introduced by H., also a member of said church, to the defendant, the incumbent of a parish in which plaint- iff was visiting, and where he became acquainted with F., one of defendant's parishioners. F. afterwards sued plaintiff for the price of a horse and other matters, and defendant was applied to by C. at plaintiff's instance, to arbitrate between plaintiff and F. ; defendant at first de- clined, and on being further pressed to act, wrote C, as one reason for not acting, that plaintiff's conduct was so bad that he should not like to have his name associated with his affairs ; and he enumerated certain charges which he had heard made against the plaintiff, adding that it grieved him much to make these statements respecting a man who evidently wished to be considered a religious man and a good church man, but that he thought it was his duty to unmask him to C, and that he would be thankful to be enabled to tell some of his neighbors that plaintiff's position at C.'s church was not quite what he [plaintiff] had led them to suppose it to be. C. handed this letter to plaintiff, who brought an a party choose to have recourse to a public newspaper, and publish statements re- flecting upon another, the aggrieved party may have recourse to the public press for his defense and vindication, and if, in so doing, he reflects upon the character or conduct of his assailant, it will be for the jury to say whether he did so honestly in self-defense, or was actuated by malice towards the party who originally assailed him." ' Hancock v. Case, 2 Fost. & F. 711. Where one to whom a cargo was consigned claimed that a part of it had not been delivered, and at interviews with those repre- senting the vessel, respecting payment of freight, declined to. pay the full amount, stating that the captain [plaintiff] had robbed the cargo, held privileged. (Clapp v. Devlin, 35 Superior Ct. [3 Jones & S.] 170.) § 241.] INFORMATION OR ADVICE GENERALLY. 435 action for libel against defendant. In an interview which defendant afterwards had with said H., defendant com- plained of the action which had been brought against him, and spoke of what he had heard against plaintiff's character. H. assured him he was mistaken, and that she would question plaintiff about the truth of these charges. She did so, and wrote defendant that she was confident he had been misinformed about plaintiff, as he had as- sured her there was not the slightest foundation for what was reported of him, and stated the reasons plaintiff gave in support of his character. Defendant wrote in reply, " Time will show whether I have been misinformed or not respecting Mr. W. [plaintiff]. A writ has been served upon me, and a public investigation must there- fore take place. If he states on oath, in the witness box, what he has stated to you, especially as to the charge of assault, he will be most certainly prosecuted for perjury, for there is not a shadow of a doubt but that the com- plaint of the servant girl is correct." Plaintiff brought another action for libel in respect of this last letter. The actions were consolidated. The jury found there was no mahce, and it was held that both letters were privileged, and verdict entered for defendant.' § 241. Every one who believes himself to be pos- sessed of knowledge which, if true, does or may affect the rights and interests of another, has the right, in good faith, to communicate such his belief to that other (§§ 243, 244).^ He may make the communication with ^ Whitely v. Adams, 33 Law Jour. 89 C. P. 2 Davis V. Reeves, 5 Ir. Com. L. Rep. 79; Owens v. Roberts, 6 Id. 79. Defend- ant, a government detective, knowing that M. was partner of plaintiff, in answer to an inquiry by M., informed M. that plaintiff was connected with a gang of burglars which the defendant had been the means of breaking up — held privileged. (Smith ■V. Armstrong, 26 Up. Can. Q. B. 57.) " A communication is privileged when made in good faith, in answer to one having an interest in the information sought, and it will be privileged if volunteered when the party to whom the communication is made 436 DEFENSES. [CH. IX. or without any previous request, and whether he lias or has not personally any interest in the subject-matter of the communication, and although no reasonable or prob- able cause for the belief may exist. The right is founded on the belief.'- "All we have to examine is whether the defendant stated no more than what he believed, and what he might reasonably believe ; if he stated no more than this he is not liable."' If A. believes that B. is in- tending to rob C, he has the right to communicate his belief to C, without waiting for C. to inquire on the sub- ject ; and if in so doing he injures B., B. is without re- dress. The exigencies of society require that such a right should exist. A.'s duty to B. is simply not U7ineces- sarily to injure him (§ 48). This right must be exer- cised as every other right is required to be exercised, in good faith (§ 40) ; and all communications made in the exercise of this right are conditionally privileged (§ 209).^ has an interest in it, and the party by whom it is made stands in such a relation to him as to make it a reasonable duty, or at least proper that he should gi\-e the infor- mation." (Allen, J., Sunderlin v. Bradstreet, 46 N. Y. 191.) ' Defendant and others were talking of a prayer meeting to be held at defend- ant's house, and it being suggested that plaintiff would attend, defendant said he would not allow him to come, and being asked the reason, said plaintiff had been guilty of beastiality (naming the offense). On a subsequent occasion, being asked to withdraw the charge, he refused, and said he was not mistaken, and would take oath of it. On the trial it was left to the jury to decide on the bona fides of defendant's charge, and that if defendant believed what he said to be true, the occasion would justify him. The jury found for the plaintiff. A motion for new trial was denied. (McCullough V. Mclntee, 13 Up. Can. C. P. Rep. 43S.) * Cockbum, Ch.' J., Spill v. Maule, Law Rep. 4 Ex. 237. If a man act bona fide on honest belief of the truth of statements made to him by others whom he be- lieves to be credible persons, he is justified in so acting upon such statements, if he believes there is reasonable and probable cause for his so doing. The question is not whether they were right or wrong ; it is what they told the defendant. (Cock- burn, Ch. J., Chatfield v. Comerford, 4 Fost. & F. 1008.) Hearsay is probable ground for belief. (Maitland v. Bramwell, 2 Fost. & F. 623 ; Lister v. Ferryman, Law Rep. 5 Ho. of Lords Add. Cas. 365 ; rev'g Ferryman v. Lister, Law Rep. 3 Ex. 197 ; and see Keyter v. Leroux, 3 Menzies' Rep. N. S. 23 ; Owens v. Roberts, 6 Ir. Com. Law Rep. 386.) ^ For words " spoken in good faith, to those who have an interest in the com- munication, and a right to know and act upon the facts stated," no action can be § 241.] INFORMATION OR ADVICE GENERALLY. 43/ The existence of this right, as will presently be shown, in cases where the communication is made by one having no personal interest in the subject-matter of the com- munication, and zvithout any previous request, has been questioned, nevertheless we feel justified in laying it down for law that the right exists as well where there is not as where there is a previous request, and whether the publisher has or has not any such personal interest. The right, as we conceive, in no wise depends either upon the fact of a previous request ^ or upon the interest of the publisher, although the fact that the communication is made officiously, as it is termed, i. e., unsolicited, or by one having no interests involved, may in so77te cases have a tendency to disclose the motive of the publisher in making the publication.^ The right, where the publisher maintained without proof of express malice. (Shaw, Ch. J., Bradley v. Heath, 12 Pick. 163.) If the words are spoken in good faith, no malice can be proved. To prove malice would be to prove that the words were not spoken in good faith. The law respects communications made in confidence, notwithstanding they may be false and erroneous, and prove injurious to the party. This rule applies equally to words written and spoken. (Note to Wyatt v. Gore, Holt's N. P. 299; and see ante, note 3, p. 428.) And one part of a publication may be privileged, because made to a person interested, and another part not privileged ; thus, where the plaintiff and de- fendant were jointly interested in property in Scotland, of which C. was manager, defendant wrote to C. a letter, principally about the property and the conduct of the plaintiff with reference thereto, and containing a charge against the plamtiff with reference to his conduct to his mother and his aunt ; held, that so much of the letter as related to the property was privileged, but the remainder was not. (Warren v. Warren, i Cr. M. & R. 250; and see Humphreys v. Stilwell, 2 Fost. & F. 590-) Where there are several distinct [divisible] statements (§ 145), some privileged and some not privileged, those not privileged are not protected by those that are privi- leged. Where a statement is privileged, the privilege is not lost by the mere fact that the publication was made rashly and without sufficient inquiry. (Clarke v. Roe, 4 Ir. Com. Law Rep. i.) 1 It was wholly immaterial whether the defendant was asked to make the state- ment or whether he volunteered it. In either case it was privileged, unless mali- cious! (Harwood v. Keech, 6 Sup. Ct. Rep. [T. & C] 665 ; n Id. [4 Hun], 389-) ^ " If I know that a villain intends to defraud or in any way to injure my neigh- bor it is doubtless my duty as a good citizen, and as a Christian man, to put him on his guard. But there is no rule of law which renders me liable for his loss in case of my neglect of this duty. It is a moral duty simply, not recognized by law. Cer- tainly, there is no law which requires, upon mere suspicion or belief, that I should 438 DEFENSES. [CH. IX. is interested, or where the communication is made upon the request of the party in interest, seems never to liave been doubted ; thus where the languao^e published im- puted habits of intemperance to the plaintiff, a dissent- ing minister, it was held privileged because spoken in an- swer to inquiries.' So a letter written to persons who employed A. as their solicitor, conveying charges injuri- ous to his professional character in the management of certain concerns which they had intrusted to him, and in which B., the writer of the letter, was likewise interested, was held to be a privileged publication.^ And where A., being tenant of B., was desired by B. to inform him if he saw or heard anything respecting the game, A. wrote a letter to B., informing B. that his game-keeper (the plaintiff) sold game, — held, that if A. had been so in- formed, and believed the fact so to be, this was a privi- thrust myself into the business affairs of my neighbors, and endeavor to transact for them their concerns." (Hunt, J., Ohio R. R. v. Kasson, 37 N. Y. 224.) ' Warr v. Jolly, 6 C. & P. 497. A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding in- terest or duty, although it contains criminatory matter which witjiout this privilege would be slanderous and actionable. (Harrison v. Bush, 5 El. & Bl. 344.) Where a party has a mutual interest with another, he is justified in prevailing on him to become party to a suit, and expressions of angry and strong animadversion on the conduct of the party impeached, unless malicious, are privileged ; and, in the case of words, the jury merely take into consideration the whole conversation to see whether particular words, which may be actionable in themselves, are qualified so as not to convey the primary meaning. (Shipley v. Todhunter, 7 C. & P. 680.) ^ On the trial a juror was withdrawn. (McDougall v. Claridge, i Camp. 267.) Representations as to stockholders. (Hanna v. De Blaquiere, li Up. Can. Q. B. 310), as to school teacher. (Mclntyre v. McBean, 13 Id. 534.) " Defendant being a resident of the school district in which it was intended to employ plaintiff as a teacher, and having a daughter he desired to send to said school, it was not only his right but his duty, if she was a woman of bad character, to communicate to the trus- tees such information as he possessed in reference to her character, and the com- munication thus made was privileged, and the plaintiff could not recover without proof of express malice." (Mullen, P. J., Harwood v. Keech, 6 Sup. Ct. Rep. [T. & C] 665 ; II Sup. Ct. Rep. [4 Hun], 389.) The words " I told H. I believed he (plaintiff) murdered J., and all the neighbors believed it," held privileged. (Harper v. Harper, 10 Bush [Ky.] 447). This decision seems to have proceeded on the ground that defendant spoke for the public benefit. § 241.] INFORMATION OR ADVICE GENERALLY. 439 leo-ed communication, and that the game-keeper could not maintain any action for libel.' So where the plamtiff had requested his friend, R. A., to open a correspondence with the defendant in reference to certain charges made by the defendant concerning the plaintiff, held that let- ters written by the defendant to R. A. were privileged communications.^ Where, in an action for libel, it ap- peared that the plaintiff was churchwarden and defendant clergyman of the same parish, and that differences having arisen between them in that relation, the plaintiff re- quested that the defendant's future communications should be by letter to the plaintiff's clerk. The defend- ant afterwards applied by letter to the clerk for rent which he conceived to be due him from the plaintiff The clerk answered that defendant denied his hability, and in reply the defendant wrote the clerk, " This at- tempt to defraud me of the produce of the land is as mean as it is dishonest,"— held that the communication was not privileged in itself; that it was a question for the jury whether the language was justified by the occasion, but that the judge was right in directing the jury that the communication was actionable.3 An attorney hav- 1 Cockayne v. Hodgkisson, 5 C. & P. 543- Defendant was steward of an estate ; he was directed by his employer to inquire as to the existence on the estate of a house of bad repute ; defendant made inquiries and was informed that a house of a cer- tain number, in a certain street, was a house of bad repute , the number and nan.e of street indicated plaintiffs house ; defendant, doubting the accuracy of he m or- mation he had received, made further inquiries, and in so domg repeated the mfor- n^ationhe had received ; he then ascertained that the wrong street number had been given him. and that plaintiffs house was not the house mtended to be pomted out to him; held, if defendant's statements concerning plaintiffs house, were rnade Tpursuanie of his duty to his employer, they were privileged. (Brett .. Watson .0 Weekly Rep. 723.) It is no justification for publishing defamatory language tha a cause was about to be tried, in which defendant was interested and plaintiff wa to be a witness, and defendant spoke the words in confidence, and to ascertam ^vhat plaintiff would testify to on such trial. (Wilson v. Barnett, 45 Ind. 164.) 2 Hopwood V. Thorn, 8 C. B. 293 ; Bayer v. Begg. 15 Ir. L. Rep. N. S. 458. 3 Tuson V. Evans, 3 Per. & D. 396. Where, in an action for defamation, it ap- pears that a defendant, authorized by his relation to the party addressed to make a 440 DEFENSES. [cH. IX. ing, at plaintiff's desire, written the defendant demanding payment of an alleged debt, the defendant sent a letter to the attorney containing gross imputations on the plaintiff''s character, wholly unconnected with the de- mand made upon him ; held not a privileged communi- cation, although the jury found that the letter was writ- ten bona fide, and negatived malice in fact.' A., the plaintiff", was party to a suit in chancery by B.. his next friend, who was answerable for the costs of the suit. A. expressed a desire to change his solicitor in that suit, which coming to the knowledge of the defendant, he wrote a letter to B., in which, amongst other things, he stated that A. had been apprenticed to a civil engineer, and had had a present made him of his indentures, be- cause he was worse than useless in the office ; in an action of libel by A., held that the letter was a privileged publi- cation.'' The owner of a building which has been set on fire may caution the persons employed by him therein against a particular person, suspected of being the incen- diary ; and his statements to them, if made in good faith for this purpose, are privileged communications, al- though they contain an unfounded criminal charge against the suspected person.^ An insurance company, of " privileged communication," in professing to do so makes a false charge, the infer- ence of malice is against him, and the burden is put on him to show that he acted bona fide. (Wakefield v. Smithwick, 4 Jones' Law [N. Car.] 327 ; Harwood v. Keech, 6 Sup. Ct. Rep. [T. & C] 665 ; 11 Id. [4 Hun], 389 ; and see Hartwell v. Vesey, 3 Law Times, N. S. 275 ; Cole v. Wilson, 18 B. Monr. 212, and g ■})'^%post.) ' Huntley v. Ward, 6 C. B. N. S. 514; and see ante, note 2, p. 426. A claim having been made against defendant's principal, he, defendant, wrote in reply, and explaining that plaintiff had no cause of action, held privileged. (Halloran v. Thompson, 14 Ir. L. R. N. S. 334. A correspondence was had between plaintiff's attorney and defendant, respecting a claim for damages made by plaintiff against de- fendant ; defendant in justifying himself, used defamatory language concerning the plaintiff — held privileged. (Sayer v. Begg, 15 Ir. L. R. N. S. 458.) 2 Wright V. Woodgate, Tyr. & Gr. 12. ^ Lawler v. Earle, 5 Allen. 22. Action by husband and wife against husband and wife for slander. Plaintiff and the male defendant were tenants under T., of adjoining parcels of land. Plaintiff was under prosecution for maliciously burning § 241.] INFORMATION OR ADVICE GENERALLY. 44I which the defendant was president, made an insurance against fire on the property of one Graves in the occupa- tion of the plaintiff; an appHcation was made to the company to alter the policy ; the application was refused, and notice given that the policy would be canceled. Graves inquired the reason for this, and was told by the defendant that the company would not insure any build- ing occupied by plaintiff, as a building insured by the company and occupied by the plaintiff had been burned under very suspicious circumstances, adding : " What would you think of a man being seen round the store at two or three o'clock in the morning before the fire ? " this was held to be a privileged communication.' The defendant had the right to give to Graves a reason for the company refusing to insure the building owned by him, and Graves was interested to know the opinion the defendant entertained concerning the plaintiff. So where the plaintiff was secretary of the Brewers' Insurance Company, and he being charged with misconduct was called upon to attend a board of directors, for the pur- pose of explanation, but declined to do so ; whereupon the directors, after hearing the charges, passed a resolu- tion that he had been guilty of gross misconduct, and dismissed him. The defendant, a director of that com- pany, and also of the London Necropolis Company, of which the plaintiff was auditor, communicated the fact of the plaintiff's dismissal " for gross misconduct " at a board meeting of the latter company, and proposed a res- olution to dismiss him, and, in answer to an inquiry from the chairman, said that the misconduct consisted in his buildings. The female defendant said to T., it would be worth your while to go and see the house that she [the female plaintiff] burned herself, held not privileged. (Gillis V. McDonald, 4 Ir. Rep. C. P. 342.) ' Liddle v. Hodges, 2 Bosw. 537; affi'd 18 N. Y. 48. Information to the presi- dent of an insurance company in which plaintiff was insured, held privileged. (Noonan v. Orton, 32 Wis. 106.) 442 DEFENSES. [CH. IX. " obtaining money from the solicitors of the company under false pretenses, and paying a debt of his own with it ; " in an action for slander it was held that the publica- tion was conditionally privileged.' The defendant being a competitor with the plaintiffs for a contract with the navy board for African timber, the plaintiffs obtained the contract. Defendant then agreed to supply plaintiffs with a portion of the timber, and made no objection to taking their bills in payment. Afterwards this agreement was rescinded, and defendant wrote to a merchant who was to supply the timber to carry out the agreement, and of w^hom the defendant w^as a creditor, and the sole cor- respondent in London, reflecting on the plaintiffs' mer- cantile character, and putting said merchant on his guard against them. In an action for libel in making this com- munication, a verdict having been found for the defend- ant on the ground of privilege, the court granted a new trial.^ The plaintiff was a dealer in beer, buying it of a brewer and selling it to publicans. Plaintiff wishing to open an account with the defendant, a brewer, one L. became his [plaintiff's] surety for the price of such beer as defendant should from time to time supply the plaintiff, he [defendant] promising to inform L. of any default made by plaintiff in his payments. After plaintiff and defendant had dealt together for some time, defendant went to L. and spoke in very abusive terms of plaintiff, saying he wished to cheat him, and that he had returned as unmerchantable beer he [plaintiff] had adulterated, and that he w\as a rogue, &c. At this time there was a ' Harris v. Thompson, 13 C. B. 329 ; see Parsons v. Surgey, 4 Fost. & F. 247. ' Ward V. Smith, 6 Bing. 749. In Van Spike v. Cleyson (Cro. Eliz. 541), it is said not to be actionable for one man to tell another confidentially not to trust an- other, if done only by way of counsel. Words of a tradesman that he would soon be a bankrupt, when spoken in confidence and friendship as a caution, held not to be actionable unless the jury found there was malice. (Hen'er v. Dowson, Bull. N. P. 8.) § 24IA.] INFORMATION OR ADVICE GENERALLY. 445 balance due defendant from plaintiff for beer, in respect of which L. was liable on his guaranty. Lord Ellen- borough inclined to think the communication condition- ally privileged; he refused, however, to nonsuit the plaintiff, and a juror was withdrawn.' Plaintiff was en- gaged to superintend the works of a railway company, and subsequently, at a general meeting of the proprietors, the engagement was not continued, but a former in- spector was reinstated. Afterwards a vacancy occurred in the situation of engineer to the commissioners for improving the river Wear, and the plaintiff became a candidate. The defendant wrote to C. introducing D. as a candidate, and C. having written defendant informing him that another person [the plaintiff] had succeeded in obtaining the appointment, the defendant wrote an an- swer to C. reflecting on the conduct of the plaintiff whilst superintendent of the railway works. It appeared that defendant and C. were both shareholders in the railway company, and that defendant managed C.'s affairs in the railway. Held not a privileged publication.^ § 241 ^. A party is justified in giving his opinion bona fide of the respectability of a tradesman in anszvei- to an inquiry concerning him ; ^ thus it is said that the owner of a public house cannot maintain an action against a neighboring publican for giving a bad character of such house to a person who, being in treaty for purchasing it, applied to the defendant for information, provided (as is stated) there is some evidence of the truth of the asser- tion.'^ In an action for slander by the plaintiffs, bankers 1 Dunman v. Bigg, i Camp. 269 ; and see Rex v. Jenneaur, 3 Bac. Abr. tit. Libel, 452; 2 Brownl. 151; 2 Burns' Eccles. Law, 179; Wilson v. Stephenson, 2 Price, 282. - Brooks V. Blanchard, i Cr. & M. 779. » Storey v. Challands, 8 C. & P. 234; otherwise when there is no inquiry. {Id.) •* Humber v. Ainge, Manning's Index, tit. Libel, pi. 13. Where a person author- ized to make a privileged communication stated false matter, and the court left it to 444 DEFENSES, [CU. IX. at M., the charge was that in answer to a question from one Watkins, whether he [defendant] had said that plaintiffs' bank had stopped, defendant's answer was, "It was true ; he had been told so." The proof was that Watkins met defendant and said, " I hear that you say the bank of B. & S. [plaintiffs] has stopped. Is it true ? '' Defendant answered, *' Yes, it is ; I was told so," and added, " It was so reported at C, and nobody will take their bills, and I have come to town in consequence." Watkins said, " You had better take care what you say ; you first brought" the news to town, and told Mr. John Thomas of it." Defendant repeated, " I was told so." It further appeared that defendant had in fact been told there was a run on plaintiffs' bank, but not that it had stopped, or that nobody would take the plaintiffs' bills. It was held on the trial that the publication of the words alleged was proved, and the jury were instructed that if they thought the words were not spoken maliciously, the defendant ought to have a verdict. The jury found for the defendant. On plaintiffs' motion a new trial was ordered. On granting the new trial, the court discussed at length the question of malice, and the supposed dis- tinction between malice in fact and malice in law,' and stating that there was no instance of a verdict for the defendant on the ground of want of malice,'' held that, instead of instructing the jury that if the words were not spoken maliciously, they should find for the defend- ■ ant, it should have been left to the jury as a previous question whether the defendant understood W^atkins as asking for information for his own guidance, and that the jury to say whether, " in communicating what he had heard and believed to be true," he acted in good faith, and there was no evidence that he had heard anything, nor none as to how he believed, it was held to be error. (Wakefield v. Smithwick, 4 Jones' Law [N. Car.] 327.) ' See ante, note 3, p. 130. ' See contra Wilson v. Stephenson, in note i, p. 132, ante. § 24IA.] INFORMATION OR ADVICE GENERALLY. 445 defendant spoke what he did merely out of honest ad- vice to regulate the conduct of Watkins, then the ques- tion of malice in fact would have been proper as a second question to the jury, if their minds were in favor of the defendant upon the first. '^ * In grantmg a new trial the court does not mean to say that it may not be proper to put the question of malice as a question of fact for the consideration of the jury ; for if the jury should think that, when Watkins asked his question, the defendant understood it as asked to obtain informa- tion to regulate his (Watkins) conduct, it will range under the cases of privileged communications, and the question of malice in fact will then be a necessary part of the jury's inquiry ; but it was not left to the jury to con- sider whether the question was understood by the de- fendant as an application for advice, and if not so under- stood the question of malice was improperly left to the jury.' Where a party interested in a building contract, on which the plaintiff had been engaged, applied to the defendant to recommend a surveyor to measure the work, when the defendant stated that he had seen the plaintiff take away some of the materials, upon which the plaint- iff's employer inquired of the defendant if he had seen plaintiff taking them away, when he alleged that he had seen the plaintiff taking them, and that he hallooed to him ; held, that the judge properly directed the jury to say, first, whether the words imputed felony ; and sec- ondly, that even if they did, the plaintiff was not entitled to recover, unless malice was expressly shown, or the jury believed, from the circumstances, that the defendant was actuated by malicious motives.^ Where A. had sold goods to B., and afterwards, and before the delivery of the goods, C, without being asked or solicited in any 1 Bromage v. Prosser, 4 B, & C. 247 ; 6 Dowl. & R. 296. « Kine v. Sewell, 3 M. & W. 297. 29 446 DEFENSES. [cH. IX. way to do so, made representations to A. injurious to the credit of B., the representations were held not to be privileged, because made without any previous request.' And where A., seeing that apartments were to let at a house occupied by B., inquired who was the landlord, of C. (a neighbor of B.'s) ; C. told him, and added that B. had not paid his rent, and that if A. moved in his goods they would be seized. B. having sued C. for slander, the judge, at the trial, told the jury "he thought it was a privileged communication by C, unless they were of opinion it was made maliciously ; that the question for them was, did the defendant honestly believe, at the time he spoke the words, that the statement contained in them was true, or was he actuated by malice in making such statement.^ — held that there was no misdirection. But the court granted a new trial, not being satisfied of the fact whether C.'s statements were made officiously or in answer to A.'s inquiries." The plaintiff was foreman to one Bryer, a bone merchant. In October, 1865, defend- ant gave Bryer an order for 100 quarters of sheep's hoofs. Plaintiff by mistake delivered 1 20 quarters. On the day following the delivery, plaintiff informed a clerk of the defendant of the mistake, and made an additional charge in defendant's account. In September, 1866, defendant called on Bryer, and said, " I lay 20 quarters of sheep's hoofs to your foreman and my clerk. There was an over- ture made by your foreman to divide the price of the 20 quarters, and pocket the money between them. It has been on my mind some time, and it is best to let you know it. Your foreman made improper overtures to my clerk to get the money for those 20 quarters and divide whatever the amount was." This was held to be privi- 1 King V. Watts, 8 C. & P. 614 ; and see Pattison v. Jones, 3 M. & R. loi. ' Chapman v. Wright, i Arn. 241. § 24 1 A.] INFORMATION OR ADVICE GENERALLY. 447 leged.' Whether a caution not to trust another, bona fide given to a tradesman, zvithoiit any inquiry on his part, is a privileged communication, was discussed in Bennett v. Deacon,^ and it was held by Tindal, Ch. J., and Erie, J., that it was, and by Coltman and Cresswell, JJ., that it was not. The effect of a previous inquiry was very elaborately discussed in a case where C, the mate of a ship, wrote to the defendant, falsely charging his cap- tain (the plaintiff) with having endangered the vessel and lives of the crew by continued drunkenness. The vessel was at this time in port, and likely to continue there a few days. The defendant, who was slightly ac- quainted with the owner of the vessel, but was not inter- ested in the vessel, and had no inquiry made of him, believing in the truth of the letter, showed it to the owner, who, in consequence, dismissed the captain. In an action for libel by the captain, upon these facts appear- ing on the trial, the chief justice directed the jury that if the defendant acted honestly and bona fide, the publica- tion was justifiable, and their verdict must be for the defendant ; if otherwise, for the plaintiff. The jury found a verdict for the defendant. On a motion for a new trial, after the case had been, at the request of the court, twice argued, held, by Tindal, C. J., and Erie, J., that the pub- lication was justifiable, and that the direction to the jury was right ; per Coltman, J., and Cresswell, J., that the direction was wrong; the court being equally divided, the motion for a new trial was denied, and the defendant had judgment. 3 Where W. went to inquire of defendant ' Caulfield v. Whitworth, 18 Law Times, N. S. 527. ' 2 Com. B. 628 ; and see Lewis v. Chapman, 16 N. Y. 369. ^ Coxhead v. Richards, 15 Law Jour. R. 278, C. P. ; 10 Jur. 984; 2 C. B. 569. In our opinion, the Chief Justice and Justice Erie were right, and Justices Cresswell and Coltman wrong, and of the like opinion were the court in Davis v. Reeves (Ir. Rep. 5 Com. Law, 79). The importance of the principles involved justifies the reit- eration of our conclusion that the material question in such a case is, Was the com- 448 DEFENSES. | ( H. IX. the address of plaintiff, who had previously been a tenant of the defendant, in the course of a conversation which ensued, defendant spoke dispara<^inorly of the plaintiff, and although W. told defendant he did not come to in- quire into plaintiffs character, but only to obtain his address, defendant continued to speak concerning the plaintiff, and used words imputing that he was a swindler, but added that he spoke in confidcjice, in an action for these words alleging special damage, it was held proper to leave it to the jury to say whether defendant acted with malice or bona fide for the purpose of putting W. on his guard.' The defendant being tenant to A. of a house, B., the agent of A., directed the plaintiff to do some repairs at the house. The plaintiff did the repairs, but in a negligent manner, and during the progress of the work got drunk ; circumstances occurred which induced the defendant to believe that the plaintiff had entered his (defendant's) cellar, and taken his cider deposited there. munication made bona fide to protect the interests of the person spoken to, without regard to its effect upon the party spoken of, and without any ill-will towards or desire to injure the person spoken of? If yea, it is privileged, and the absence or presence of a previous request is only material as evidence of the intent. This is conceded to be the law in the case of an employer giving what is termed a character to an ex-employee, and we shall show (g 245) this latter act comes within the general rule of a communication made to protect the interests of the person to whom the communication is made. On the argument of Coxhead v. Richards (2 C. B. 591), Sir T. Wilde, for the plaintiff", says : " The cases as to characters of servants are not in point. Judges may have been wrong in supposing that a former master stands in a peculiar position. It may be said that the servant authorizes the master to libel him " (note to § 245, post). But, right or wrong, the cases proceed upon that distinction. (Erie, J. : In those cases it is perfectly immaterial whether the party was a volun- teer"; the sole question is, whether the information was given honestly and bona fide. Cresswell, J. : Mr. Justice Bayley deals much more clearly with the principle upon whichthis class of cases proceeds than Lord Tenterden does, in Pattison v. Jones.) And at page 6og, Erie, J., denies that the relation of master and servant is the ma- terial one in cases of privileged communication. The action of the defendant in the case now before us seems to be as consistent ^vilh a natural and praiseworthy im- pulse to protect the interest of the ship owner, and to protect the lives of the persons committed to the plaintiff's care, as with a desire to injure the plaintiff, and should not be considered as by itself evidence of malice. {Ante, note 4, p. 443.) > Picton V. Jackman, 4 C. & P. 257. § 241 A.] INFORMATION OR ADVICE GENERALLY. 449 Two days afterwards, defendant met the plaintiff in the presence of D., and charged him with having got drunk and spoiled the work, and broken into his (defendant's) cellar. The defendant afterwards told D., in the absence of plaintiff, he was certain plaintiff had broken open the door. On the same day, the defendant complained to B. that plaintiff had been negligent with the work, had got drunk, and, as he thought, had broken open his cellar door. In an action of slander for these three several publications, held, that the first and third pub- lications were conditionally privileged, and the second was not privileged.^ Where the defendant, a son-in-law, addressed a letter to his mother-in-law, about to marry the plaintiff, containing slanderous imputations against him ; held, that the occasion justified the writing, and that the jury were to say whether the defendant acted bona fide, 2XiA under a belief of the truth, although the imputations were false, and that such communications were to be regarded liberally, unless a clearly malicious intention was manifest in the act.^ That the defendant knew of the falsity of the charge published, is a fact 1 Toogood V. Spyring, i Cr. M. & R. i8i ; 4 Tyrvv. 582. ' Todd V. Hawkins, 8 C. & P. 88 ; 2 M. & Rob. 20. The court having instructed the jury "that confidential communication, made in the usual course of business, or of domestic or friendly intercourse, should be liberally viewed by juries," held that the charge was right. (Stallings v. Newman, 26 Ala. 300.) A grand jury had an indictment for theft of money before them, and a brother of the man who had lost the money, returning from the court, stated that fact in answer to inquiries made of him and said that the general opinion was, that, if a certain person swore what he had stated the accused would be convicted. This brother was afterwards sued for slandering the accused, by saying that " he believed he stole the money." and it ap- peared that the words laid in the declaration, if spoken at all of the plaintiff, were spoken in a private conversation with a brother of the defendant, both being brothers of the man whose money had been stolen, and were overheard by one who had been employed to listen. Held, that the occasion, and the relationship between the par- ties, afforded a/rma/««V justification, sufficient to defeat the action, in the absence of any other proof of malice than what arose from the mere speaking of the words. (Faris v. Starke, 9 Dana, 128.) 450 DEFENSES. [cH. IX. from which malice may be inferred.' A letter to a woman containing defamatory matter concerninp^ her suitor, cannot be justified on the ground that the writer was her friend and former pastor, and that the letter was written at the request of her parents, who assented to all its contents.^ So if one not having been inquired of, write to the family of a woman that the man she is about to marry has been imprisoned for larceny, the communi- cation is not privileged.3 But where the wife of A., prior to her decease, made a request to B., after her (A.'s) de- cease, to look to and advise her daughters. The wife of A. died, and he remarried. B. told the daughters of A.'s deceased wife that their step-mother was a loose woman, and that they ought to leave their home ; this was held to be a privileged publication.* The plaintiffs, printers at M., had been employed by the defendant, the deputy clerk of the peace for the county of K., to print the reg- ister of electors for the county, the expense of which was defrayed from the county rate, and allowed by the justices at quarter sessions ; afterwards the defendant em- ployed another printer, who agreed to do the work at a lower rate than that which the plaintiffs required, and he wrote a letter to the " finance committee " appointed to superintend such expenses, in the conclusion of which he imputed improper motives to the plaintiffs in the demand which they made, and characterized their demand as "an attempt to obtain a considerable sum of money from the ' Hartwell v. Vesey, 3 Law Times, N. S. 275 ; Harwood v. Keech, 6 Sup. Ct. Rep. (T. & C.) 665 ; 4 Hun, 389; see post, § 389 ; ante, note 3, p. 439. - Joannes v. Bennett, 5 Allen (Mass.) 169; and see Rosbotham v. Campbell, 5 Ir. Jur. N. S. 243. ^ Krebs v. Oliver, 12 Gray, 239. When A., a relative of defendant, was about to marry one C, the defendant wrote a letter to B., a sister-in-law of A., containing defamatory matter concerning C, and requesting B. to repeat such matter to A., held privileged. (Atkinson v. Congreve, 7 Ir. Law Rep. N. S. 109 ; ante, p. 425, note.) * Adcock V. Marsh, 3 Ired. 360. § 241 A.] INFORMATION OR ADVICE GENERALLY. 45 I county by misrepresentation." In an action for libel, it was held that the occasion of writing the letter prhna facie rebutted the presumption of malice, but that it was a question for the jury whether the sentence complained of as exceeding the privilege was evidence of malice.' The defendant, bona fide believing that the plaintiff, who was a clerk to one M., a customer of the defendant, and who had been sent to the defendant's shop by M., had, while there, stolen a box from an inner room, went to M., and, after telling him of his loss, intimated his suspi- cion of the plaintiff, saying, "There was no one else in the room, and he must have taken it." Held, that the communication was privileged by the occasion." A letter written to B., concerning the plaintiff, who was steward of B.'s estate, was held to be privileged.^ A communica- tion made by one subscriber to a charity to another sub- scriber to the same charity, respecting the conduct of the plaintiff, the medical attendant in the employ of such charity, held not to be privileged.-^ Where the alleged libel was contained in a handbill offering a reward for the recovery of bills, and stating that the plaintiff was believed to have embezzled them ; held that, if done with the view solely to protect persons liable on the bills, or for the conviction of the offender, it was a good defense ; and that, in order to show the bona fides of the defend- 1 Cooke V. Wildes, 5 El. & Bl. 32S ; 24 Law Jour. Rep. N. S. 36? Q- B. ; i Jur. N. S. 610. 2 Amann v. Damm, 8 C. B. N. S. 597- 2 Cleaver v. Senaude, i Camp. 268, note. * Martin v. Strong, 5 Adol. & El. 535 ; I Nev. & P. 29. A letter written by the defendant, a subscriber to a charity, to the managing committee, impugning the moral character of the plaintiff, the secretary of said charity, in reference to a per- son whom defendant has recommended as matron ; and a second letter by the de- fendant to said committee, in answer to inquiries made by them, and also oral state- ments made by the defendant to said committee, were held to be privileged if made with an honest and reasonable belief of their truth. (Maitland v. Bramwell, 2 Fost. .& F. 623 ; and see Lawless v. Anglo-Egyptian Cotton Co., Law Rep. 4 Q- B. 262.) 452 DEFENSES. [cil. IX, ant, evidence of his having preferred a charge of the same nature against the plaintiff was admissible.' A communi- cation by a landlord to his tenant, respecting the conduct of sub-tenants, or persons in the employ of the tenant, is conditionally privileged ; as where the defendant com- plained to E., his tenant, that her lodgers, of whom the plaintiff was one, behaved improperly at the windows, and he added that no moral person would like to have such people in his house.^ So communications made by an employer to his employee, or by an employee to his employer, are conditionally privileged in certain cases. Thus, defamatory words spoken by an employer to his overseer, intended to protect the employer's private inter- ests and property, spoken without malice, were held priv- ileged.3 So where the plaintiff was a wine merchant, and the defendant the surgeon to a poor law union. The plaintiff made a proposal to supply wine for the use of the sick paupers, defendant advised the board of guardians not to accept plaintiff's proposal, alleging that the wine which plaintiff would supply would not be of the kind represented. Defendant's language was held privileged.'* The communication of an agent to his principal, touching the business of his agency, and not going beyond it, is privileged, and is not actionable without proof that the defendant did not act honestly and in good faith, but intended to do a wanton injury to the plaintiffs The defendants, bankers at L., received ' Finden v. Westlake, Moo. & Malk. 461. An advertisement in a newspaper, warning the public against negotiating certain notes which had been obtained from their alleged owner by fraud or theft, is privileged. (Commonwealth v. Feather- stone, 9 Phil. [Pa.] 594.) ^ Knight V. Gibbs, 3 Nev. & M. 467 ; i Adol. & El. 43. Besides that the tenant was interested to know the character of her lodgers, the defendant was interested to maintain the reputation of his house. ^ Easley v. Moss, 9 Ala. 266. * Murphy v. Kellett, Ir. Rep. 13 Com. Law, 488. ' Washburn v. Cooke, 3 Denio, no. § 24IB.] INFORMATION OR ADVICE GENERALLY. 453 from C. & Co., of Y., for collection, a note drawn by plaintiffs, merchants at L. ; the plaintiffs took up the note at maturity, the 19th of April, by giving a draft on defendant's bank, in which they kept their account. The draft overdrew the plaintiffs' account, but was accepted by a clerk of the defendant, who, in reply to an offer of one of the plaintiffs to transfer an amount standing to his individual credit sufficient to meet the check, declared that to be unnecessary. The plaintiff's' account was made good on the 25th of April, and on the 28th of April de- fendants remitted to C. & Co. the amount of the note, and added a postscript : " Confidential. Had to hold over a few days for the accommodation of L. & H." — the plaintiffs. On the trial, there was no evidence as to malice ; the plaintiffs had a verdict on which judgment was entered, and the case went to the Court of Appeals, where the judgment was reversed, and a new trial or- dered ; and the court said, " Assuming that the defendant made the communication in perfect good faith, as we must on this question of privilege, his act was not to be deemed officious, as it related to the very business with which he was intrusted." ' The sheriff levied upon certain cattle of W., and they were wrongfully driven away, whereby he was likely to be damnified ; he employed C, a law student, to ascertain the facts, and to advise what course it was best to pursue ; held, that C.'s letter to the sheriff, stating facts implicating W., and advising his arrest for larceny of the cattle, was privileged.' § 241 <^. The communication of a pastor to his parish- ioners, relating to matters not spiritual, is not necessarily privileged ; as where the plaintiff, who had been for twenty years schoolmaster at the national school of the 1 Lewis V. Chapman, i6 N. Y. 369 ; rev'g 19 Barb. 253. 3 Washburn v. Cooke, 3 Denio, 1 10. 454 DEFENSES. [CH. IX. adjoininc: parishes of C. and I., of which the defendant, the rector of C, and another person, the vicar of I., were trustees, was requested by the defendant to undertake the Sunday school of his parish ; he decHning to do so, was removed from the mastership of the national school ; he afterwards, intending to gain a livelihood by it, set up a school in the defendant's parish, in a school room used as a dissenting chapel. In a letter addressed to his parish- ioners, the defendant told them that the plaintifif's at- tempt betrayed a spirit of opposition to authority, and justified the managers of the national school in removing him; that " no rightly-disposed Christian, who received in simple faith the teaching of inspiration, ' Obey them who have the rule over you, and submit yourselves,' could expect God's blessing to rest upon such an undertaking," and warned them against (sountenancing it, either by sub- scriptions or sending their children to it for instruction ; that it w^ould be a schismatical school, and those who aided the plaintiff in any w^ay would be partakers with him in his evil deeds ; they were to mark them which cause divisions and offenses, and avoid them, &c. On the trial, the presiding judge held the communication a privileged one, and in the absence of any evidence of malice, ordered a verdict for the defendant ; on motion for a new trial, this direction was held erroneous, and that the jury should have determined whether the publication was not malicious on its face.' § 241 ^. A customer may in good faith complain to a tradesman with whom he deals of anything he may deem irregular or dishonest in the conduct of such tradesman towards him (the customer) ; as where the plaintiff, a ' Gilpin V. Fowler, 9 Ex. 615 ; 23 Law Jour. Rep. N. S. 152, Ex.; 18 Jur. 292 ; see § 399, /^ji". There are in Scotland many reported cases of the recovery of damages against ministers of the Gospel, for words spoken in the pulpit. (See 2 Shaw's Digest, 1613, tit. Reparation ; and 10 Alb. Law Jour. 240, art. " Privilege of the Pulpit.") § 242.] INFORMATION OR ADVICE GENERALLY. 455 butcher, sold meat to the defendant, and defendant after- wards called at plaintiff's shop, and, in the presence of several of his customers, said : " I intended to have dealt with you, but shall not do so, for you changed the lamb that I bought of you for a coarse piece of mutton." Held that if the statement was made in good faith, it was priv- ileged.' And where the defendant, a customer of the plaintiff, a corn-dealer, went to the place of business of the plaintiff, and using abusive language to plaintiff in a loud and angry tone of voice, said, among other things • I know all about you and your family, and you have robbed me ever since I have dealt with you. Held that the jury were to determine from the language used, and from the tone and manner in which it was used, whether the defendant was merely in good faith making a com- plaint concerning a supposed wrong done him, and if so, it was privileged ; that making the complaint in a loud voice, and in abusive terms, outside of the plaintiff's shop or in the presence of third parties, were circumstances from which the jury might infer malice ; and if the state- ment was made maliciously, it was not privileged.' § 242. When once a confidential relation is estab- lished between two persons with regard to an inquiry of a private nature, whatever takes place between them relative to the same subject, though at a time and place different from those at which the confidential relation began, may be entitled to protection as well as what passed at the original interview ; and it is a question for the jury whether any future communication on the same subject, though apparently casual and voluntary, did not take place under the influence of the confidential relation already established between the parties, and therefore entitled to the same protection.^ 1 Crisp V. Gill, 29 Law Times, 82. ' Oddy V. Paulet, 4 Fost. & F. 1009. » Beatson v. Skene, 5 Hurl. & N. 838 ; see ante, note 4. P- 422. 456 DEFENSES. [cil. IX. § 243. Where a publication would be privileged if made, and because made to some certain person, the privilege may be forfeited by the publication being made to some other person ; ' as where C. was employed, for compensation, by certain merchants in New York, in ob- taining information concerning the business character and standing of their customers, and others in other States, doing business in New York. He wrote for their use, from the residence of T. & Co., a letter unfavorably representing them, and on his return, had it and similar letters printed in a pamphlet, which he gave privately to his employers and others, some of whom had dealt with T. & Co. Held, that although the publication might have been privileged if made only to such of his em- ployers as were interested in the pecuniary standing of T. & Co., the privilege was lost by the publication being made to other persons.^ And so held of a circular letter sent by the secretary of a society for the protection of trade to the members of such society.^ With regard to ' A publication, otherwise privileged, loses its privilege by being sent by tele- graph; it occasions a publication to the telegraph operators. (Williams z". Frere, Law Rep. 9 C. P. 393 ; and see Jeffras v. McKillop & Sprague Co. 9 Sup. Ct. Rep. [2 Hun], 351.) « Taylor v. Church, i E. D. Smith, 279; 8 N. Y. 452 ; Cook v. Hill, 3 Sandf. 341. ^ Getting v. Foss, 3 Car. & P. 160. Where the defendant kept a mercantile agency, whose business it was to obtain information respecting the credit and re- sponsibility of persons in business, and to furnish the same to subscribers to his agency, it was held that a communication made in good faith to a subscriber to such agency was privileged. " The business in which the defendant was engaged is sanctioned by the usages of commercial communities." (Ormsby v. Douglass, 37 N. Y. 477.) In Sherwood v. Gilbert (2 Albany Law Jour. 323), it was ruled at the circuit that the privilege accorded to a mercantile agency, as laid down in Ormsby V. Douglass, does not extend to the country correspondents of the agency. The cir- cular of a mercantile agency, issued to their subscribers generally, is not privileged ; although a publication by such an agency to persons having dealings with plaintiff would be privileged. (Commonwealth v. Stacey, i Leg. Gaz. Rep. [Pa.] 114 ; Sun- derlin v. Bradstreet, 46 N. Y. 188.) In Beardsley v. Tappan (5 Blatch. C. C. 497), it was held that a communication by the proprietor of a mercantile agency, through his clerks, to his customers and their clerks, was not privileged. In that case the § 243-] INFORMATION OR ADVICE GENERALLY. 457 the report by the officers of a corporation to th^ stock- holders, of the result of their investigation into the con- duct of their officers and agents, with their conclusions upon the evidence collected by them, it was held to be a privileged communication, but that the privilege extended only to making the report, and not to the preservation of it in the form of a book for distribution among the stock- holders and in the community/ And where the defend- ant published an advertisement calling a meeting of the creditors of the plaintiff, and in addition defamatory re- marks concerning the plaintiff, the publication was held not to be privileged, because the meeting of creditors might have been called in a less public manner." Where the plaintiffs were contractors for the erection of a borough jail, and the defendants were members of the town council ; the defendants, from their business, were competent judges of the work, and they published, in a local newspaper, a letter charging the plaintiff with omis- sions and deviations from their contract — in an action for libel, it was held that although the charges contained in the letter would have been privileged if made by the defendants to the town council, they were not privileged when published in a newspaper.^ And although a bank director may be privileged at a meeting of the board to plaintiff had a verdict for $10,000. A motion for a new trial was made before Justice Nelson, and denied. The defendant appealed to the United States Supreme Court, where the judgment was, December, 1870, reversed on a collateral point. In the defendant's brief in Tappan v. Beardsley, it was said that only thirteen suits and one prosecution against mercantile agencies for libel had been instituted up to that time, A. D. 1870, and of these, the prosecution and two suits were then pending, and the residue of the suits were either abandoned or had resulted in favor of the defendants. Billings v. Russell (8 Boston Law Rep. N. S. 699 [A. D. 185 1]), was the first reported case for libel against a mercantile agency. 1 Phil. R. R. Co. V. Quigley, 21 How. U. S. Rep. 202; see Koenig v. Ritchie, 3 Fost. & F. 413. 2 Brown v. Croome, 2 Stark. Cas. 297. = Simpson v. Downs, 16 Law Times, N. S. 391. 458 DEFENSES. [CH. IX. speak of the credit of a merchant or customer of his bank, he is not privileged so to speak, even to a co- director, in any other place or at any other time than at such meeting during its session.' The publication, by the directors of an incorporated society for promoting female medical education, in their annual report, of a "caution to the public " against trusting a person who had formerly been employed to obtain and collect sub- scriptions in their behalf, but had since been dismissed, was held to be justified so far only as it was made in good faith, and was required to protect the corporation and the public against false representations of that per- son ; and that the questions, whether the directors had acted in good faith, and had not exceeded their privilege, were for the jury.^ The plaintiff, having the defendant's bond, advertised it for sale ; the defendant published a statement of the circumstances under which the bond had been given, with this conclusion : " His (plaintiff's) object is either to extract money from the pockets of an unwary purchaser, or, w^hat is more likely, to extort money from me ; " held not privileged.^ A. understand- • Sewell V. Catlin, 3 Wend. 291. Plaintiff and one Taylor were codirectors of a joint stock company. Defendant stated to Taylor that plaintiff had been privy to the preparation and circulation of a false balance sheet of the affairs of the com- pany. Defendant learned that he was the manager of, and a shareholder in said company, and having found the affairs of the company different from that repre- sented in a balance sheet of the affairs of said company, published prior to his be- coming manager, and that he refused to act further as manager unless furnished with means to carry on the business of the company ; that the words were spoken believ- ing them to be true, without malice, and in reference to the refusal of defendant to continue acting as manager, on demurrer the plea was held bad, as not showing a privileged occasion. Taylor was not shown to have any interest in the subject-mat- ter, or duty in respect to it. (Waring v. M'Caldin, Ir. Rep. 7 Com. Law, 282.) The case was tried on the question of fact before the demurrer was argued, and on the trial it was shown the publication was to others besides Taylor, and that such others were in no wise interested ; held, this did not divest the occasion of privilege. Plaintiff had a verdict for sixpence damages. Court refused to disturb it. * Gassett v. Gilbert, 6 Gray (Mass.) 94 ; see Hatch v. Lane, 105 Mass. 394 ; Holliday v. Ontario Farmers' Mut. Ins. Co. 33 Up. Can. Q. B. Rep. 558. ^ Robertson v. McDougall, 4 Bing. 670 ; i Mo. & P. 692 ; 3 Car. & P. 259. § 244-] INFORMATION OR ADVICE GENERALLY. 459 ing that B. imputed to C, a relative of A.'s the passing to him of a piece of forged paper, told B., untruly, that he was authorized by C. to call upon him and investigate the matter, and B. thereupon repeatedly asserted C.'s guilt of the crime ; held that these assertions were unnecessary and useless, and were not privileged, and it seems they would not have been privileged if A. had been C.'s agent to call upon B. for information.' § 244. There are, however, some cases where the pub- lication to others than those immediately interested or concerned does not forfeit the privilege ; ^ as where the plaintiff, a female, went to the store of the defendant to ' Thorn v. Moser, i Denio, 488. The defendant had suspected, and declared his suspicion, that a person's wife had committed larceny ; but, upon being inquired of by that person, whether his suspicions continued, replied that he was now satis- fied that A. B. (a hired maid) stole it. Held that if the communication was privi- leged at all, the defamatory matter, going further than to satisfy the inquirer that there was reason for the suspicion to cease, went beyond the exigency of the occa- sion. (Robinett v. Ruby, 13 Md. 95.) A., on an occasion when no third person was present, accused B. of stealing ; afterwards a friend of B.'s called on A. and asked him if he had made such an accusation ? A. answered, " Yes, and I believe it to be true." Held not privileged. (Force v. Warren, 15 Com. B. N. S. 806; and see Smith v. Matthews, i Moo. & Rob. 151 ; Griffith v. Lewis, 7 Q. B. 61 ; 14 Law Jour. Q. B. 197.) Plaintiff's daughter had been in defendant's service as a domestic servant. After the girl left, defendant's wife went to where the girl was staying and claimed some articles as her property, and as having been carried away by the girl. The girl told this to her father (the plaintiff), and he, with other relatives, went to defendant saying he had come to inquire about the charge against his daughter. Defendant said she had been stealing all the time she had been at his house. Plaintiff then inquired, why did you keep her in your service ? Defendant answered that plaintiff was a thief, and that his family were all thieves, and were all tarred with the same stick ; held this was not privileged. (Miller v. Johnston, 23 Up. Can. C. P. Rep. 580.) Where the plaintiff, a carpenter, was employed by a builder, and defendant imputed that plaintiff had, while so employed at one Burton's house, car- ried away some quarterings, the builder afterwards went to defendant and asked him did he say so ? to which defendant replied, " Yes, I saw the man employed by you, take from Burton's house two long pieces of quartering." Held proper to instruct the jury that the words were privileged unless spoken maliciously. (Kine v. Sewell, 3 M. & W. 297.) If one merely acknowledges to having made a statement concern- ing the plaintiff, such acknowledgment alone will not sustain an action, but it may be used as evidence of such former statement. {Id ; and see Burt v. McBain, 29 Mich. 260.) ' See Laughton v. The Bishop of Sodor & Man, Law Rep. 4 Pri. C. Cas. 495. 460 DEFENSES. [CH. IX. make a purchase, and after she left, the shopman, missing a roll of ribbon, supposed she had taken it, and so in- formed his employer, the defendant ; the following day the plaintiff was passing the defendant's store ; the de- fendant seeing her, called her in, and taxed her with the theft, which the plaintiff denying, the defendant detained her and sent for her father, and in his presence charged the plaintiff with stealing the ribbon ; after some alterca- tion the plaintiff was permitted to depart, and afterwards brought an action for slander, in which action it w^as held at nisi prints that the repetition of the charge to the plaintiff's father was, under the circumstances, a privi- leged publication.' And where, in an action for slander, it appeared that the defendant, in the presence of a third person, not an officer of justice, charged the plaintiff with having stolen his property, and afterward repeated the charge to another person, also not an officer, who was with the consent of the plaintiff, called in to search him, held the charge was privileged if the defendant believed in its truth, acted bona fide, and did not make the charge before more persons or in* stronger language than was necessary.^ ' Fowler v. Homer, 3 Camp. 294, and ante, note i, p. 429 ; also Toogood v. Spyring, i Cr. M. & R. 181 ; 4 Tyrw. 5S2; Manby v. Witt, 18 C. B. 544 ; Taylor V. Hawkins, 16 Q. B. 308. Words spoken by the defendant, which relate to a subject-matter in which he is immediately interested, and are said for the purpose of protecting his own interest, and in the full belief that they are true, are privi- leged communications, though made in the presence of others than the parties im- mediately interested; and it is incumbent on the plaintiff to show malice, in fact, in order to recover. (Brow v. Hathaway, 13 Allen [Mass.] 239; see Davies z/. Snead, Law Rep. 5 Q. B. 608.) * Padmore v. Lawrence, 11 Ad. & El. 380 ; 3 Per. & D. 209. The plaintiff was the matron of a charitable institution ; a charge being made against her, the defend- ant, the secretary of the institution, was appointed to investigate the truth of such charge. In the course of such investigation, the defendant, in the presence of third parties, inmates of the institution, made defamatory statements concerning the plaintiff. Held to be conditionally privileged. (Wallace v. Carroll, 11 Ir. Com. L. R. 485.) We, the undersigned, who have been robbed and swindled by [naming the plaintiff and others], realizing that justice demands said parties should be pun- § 244A.] INFORMATION OR ADVICE GENERALLY. 46 1 § 244^. When words imputing misconduct, of which two persons are alleged to have been jointly guilty, are spoken to one of them under circumstances which made the communication privileged as to him, the statement is privileged as to the other also, and the latter cannot maintain an action in respect of such statement ; thus where it appeared that one Snead, the plaintiff, was an attorney and the legal adviser of the Rev. H. H., who was trustee for one widow D. and her children, and also rector of the parish in which defendant resided. During a visit H. H. paid to defendant, in the course of conver- sation and in the presence of other persons than H. H. and defendant, the defendant stated to H. H., "Your name is pretty well up in the town of Brecon. You and your scoundrel solicitor's names are ringing through the shops and streets of Brecon, You are spoken of as rob- bing the widow and orphans— you to build your church and^he to marry his daughter." In an action by Snead, the court charged the jury that if there was express malice the action would lie, otherwise they might consider the communication privileged, provided that they were of opinion that the defendant was bona fide telling H. H. facts important for him to know, in order to clear his character. The jury negatived malice. A verdict was entered for plaintiff, with liberty to move to enter it for defendant. The court in banc held that, as the statement referred to both plaintiff and H. H. in such a manner as to be indivisible, and the part relating to H. H. could not be repeated to him without including the part aflfect- ished for the offenses they have committed, hereby agree that we will bear equally all expenses, incurred in prosecuting said [naming plaintiff and others]. Defendants signed a writing on the above terms ; held it was privileged, and held further, that the exhibition of said writing to the agents of the parties alleged to have been de- frauded by plaintiff, for the purpose of procuring the signatures of the prmcipals of such agents to said writing, was also privileged. (Klinck v. Colby, 46 N. Y. 428 ; see Vanderzee v. McGregor. 12 Wend. 455, page 429, ante.) 30 462 DEFENSES. [CH. IX. ing the plaintiff, the jury having negatived malice, the statement was privileged, and the verdict was ordered for the defendant.' § 244 b. Expressions in excess of what the occasion warrants, do not,/^r sc, take away the privilege, but such excess may be evidence of malice.' § 245. There is a well recognized right to what is termed "giving a character to a servant." This right may be thus described : An ex-employer may, without render- ing himself liable in an action for slander or libel, in good faith, state orally or in writing, and as w.ell without as with a previous request, all that he may believe to be true concerning his ex-employee. It appearing that the publication was made in what is termed "giving a character," the presumption is that it is made bona fide, and the burden is upon the plaintiff to show malice in the publisher, i. e., either that he had an intent to injure the person spoken of, or that he did not believe in the truth of the statement published. Where no in- tent to injure exists, a belief in the truth of the lan- guage published is a legal excuse for making the pub- lication ; but where an intent to injure exists, a belief in the truth of the language published is not a legal excuse for making the publication. Malice, or a want of good faith, is established when it is shown that the matter published was false within the knowledge of the publisher ; or malice may be established by showing a bad motive in making the publication ; as that it was ' Davies v. Snead, Law Rep. 5 Q. B. 60S ; and see Brow v. Hathaway, 13 Allen (Mass.) 239. ^ Ruckley v. Kiernan, Ir. Rep. 7 Com. Law, 75 ; Sutton v. Plumridge, 16 Law Times, N. S. 741 ; Liddle v. Hodges, 3 Bosw. 537 ; 18 N. Y. 48 ; Howard v. Sex- ton, 4 N. Y. 161; Fero v. Ruscoe, Id. 162; Garrett v. Dickerson, 19 Md. 418; Hotchkiss V. Porter, 30 Conn. 414 ; White v. Nicholls, 3 How. U. S. Rep. 266 ; Miles V. Weber, 6 Wyatt, Webb & A'Beckett, Law, 129. The case of Tuson v. Evans, 12 Adol. cS: El. 733, said to be overraled. § 245-] MASTER AND SERVANT. 463 made more publicly than was necessary to protect the interests of the parties concerned, or that it contained matter not relevant to the occasion, or that the publisher entertained ill-will toward the person whom the publica- tion concerned. Although the right now under consid- eration is one exercised in connection with the relation of master and servant, it does not, at least in the manner generally supposed, arise out of that relation, nor is the right restricted within the limits ordinarily assigned to it. The relation of master and servant, or of employer and employee, is one created by contract ; with the determi- nation of the contract the relation expires ; and at the expiration of the relation cease all the rights and duties which, during its continuance, existed between the par- ties. Thenceforth the parties occupy the same relative positions as if no contract of hiring and serving had ever been made. It cannot be that because A. has been in B.'s employ, B. thereby acquires a right to publish con- cerning A. anything he would not have been permitted with impunity to publish had such relation never existed. Hence the right now in review must rest on some other foundation, or arise in some other way, than out of the mere fact that the person spoken or written of has been in the employ of the publisher.' On examination, it will be perceived that this right of an ex-employer to give, as it is termed, a character to his ex-employee, is nothing more than a consequence of the right to communicate one's belief, which is referred to and illustrated in a pre- ceding section (§ 241). An employer is charged with the duty of exercising due care in the selection and re- ' That seems a monstrous proposition of Sir T. Wilde's in the argument of Cox- head V. Richards (see ante, note 3, p. 447), that " the servant authorizes the master to libel him," and yet perhaps it is warranted by the reasoning in many decisions, and it is the only assumption for basing a distinction between the case of an ex-employer speaking of his ex-employee and the case of any other person (one not an employer) making a communication to a party interested. 464 DEFENSES. [CH. IX. tention of properly qualified employees or agents, and is liable for all the acts of his employees done in his service.' In addition, the employer has more or less to trust the safety of his person and his property to the employee ; the employer, therefore, is peculiarly interested to know the character and capacity of every person who either is already in his employ, or is desirous of entering his em- ploy. The employer can obtain this knowledge only from the employee himself, or from information furnished by those to whom the employee may be known. To limit the source of this knowledge to the employee him- self, would manifestly, in the majority of cases, operate to prevent the obtaining any information worth the having ; but because the employer is interested in knowing the character and capacity of those in his employ, or who are candidates for employment by him, not a former employer only, but every one who honestly believes him- self possessed of knowledge on the subject which the employer is interested to know, may, with or without a previous request, in good faith, communicate such his belief to the employer. In such cases, the communica- tion is made not to promote the interest of the person making it, but either to serve the interests of the em- ployer, or to injure the employee. No one is under any obligation to make such a communication ; he does not owe it as a duty, either to the employer or the employee, to make any communication on the subject. Making the communication is the exercise of a right, and is optional (§ 39). This right is exercised under the double peril that, by speaking disparagingly of the employee, the speaker may be sued by the employee for slander, and by speaking approvingly of the employee he may be 1 This does not mean while in the employer's service, but done in the execution of his proper duties as such employee. (See attte, note, p. i66.) g 245.] MASTER AND SERVANT. 4^5 sued by the employer for misrepresentation/ Hence usually this right is exercised with reluctance ; and as, where the communication is made without request, less evidence of ill-will may be required than in the case of a communication made upon a request,^ it seldom happens that such communications are made without request ; and because the character and capacity of an employee will be by no one so well known as by the one in whose service he has been, it happens the ex-employer is the person to whom, in the majority of instances, application will be made for information respecting the character and ca- pacity of a candidate for employment, not because the ex- employer is the only person having the right to give information, but because he is supposed to be better qualified than any other to give information on the sub- ject. The exercise of this right should be encouraged, not only for the benefit of the employer, but of the em- ployee ; if the ex-employer refuses, as he lawfully may,^ to answer any inquiries respecting his ex-employee, the probable inference is that he can say nothing favor- able, and will not incur the risk of saying anything un- favorable—an inference which may be unjust to the ex- employee. These views have been expressed judicially as thus : " But the rule is general, and it seems to me to be quite a mistake to suppose that it is the privilege only of persons giving characters. There are two other classes of persons materially interested in the maintenance of 1 Defendant's letter of recommendation of the plaintiff, if untrue, would have rendered him liable to any one injured thereby. (Fowles v. Bowen, 30 N. Y. 20 ; and see Pasley v. Freeman, 3 Term R. 51.) 2 "At all events, when he volunteers to give the character, stronger evidence will be required that he acted bona fide., than in the case where he has given the charac- ter after being required so to do." (Littledale, J., Pattison v. Jones, 8 Barn. & C. 578.) A privileged communication need not necessarily be in reply to another ; it may be original. (Ahearn v. Maguire, Arm. Mac. & Og. 29.) ' No action lies for refusing to give information as to the character or capacity of a former employee. (Carrol v. Bird, 3 Esp. 204.) 466 DEFENSES. [CH. IX. the privilege — the persons accepting characters, and those of whom characters are given. It is a most important privilege for the encouragement of all honest servants. They are sufficiently protected against the abuse of it by that limitation of it to which all agree — that if a master, going beyond it, wantonly and maliciously makes a false statement as to the character of his servant, the express malice takes away all the privilege." ' § 246. The subject of the preceding section (§ 245) is illustrated by the decisions to which we proceed to refer. Thus, it is said,^ a bona fide character given of a servant that she was saucy, &c., if there be no malice (which must be directly proved), will not ground an action of slander, though the servant was prevented from getting a place thereby ; and, though a letter giving a false charac- ter of a servant may be the ground of an action, yet, if written as an answer to a letter sent, not with a view to obtaining a character, but with an intention of obtaining such an answer as should be the ground of an action, no action can be sustained.^ A servant cannot maintain an action against his former master for words spoken or a letter written by him in giving a character of the servant, unless the latter prove the malice as w^ell as falsehood of the charge, even though the master make specific charges of fraud. As where the plaintiff, who had been in the employ of the defendant, afterwards applied to one R. for employment. R. inquired of the defendant concerning plaintiff, and in consequence of what was told him by defendant, refused to employ plaintiff. Upon this, C, plaintiff's brother-in-law, called upon the defendant for an explanation, and then the defendant wrote C, " Two days 1 Wightman, J., Gardner v. Slade, 13 Jurist, 828; 13 Adol. & El. N. S. 796; and see in note 2, p. 469, post, and Swadling v. Tarpley, in Appendix, post. ^ Edmonson v. Stephenson, Bull. N. P. 8. ^ King V. Waring, 5 Esp. 14. § 246.J MASTER AND SERVANT. 467 I gave him (plaintiff) money to go into the city and buy books. When he came home I desired him to reckon up his accounts ; he did so. But being one day more curious than I sometimes was, I looked over his account, article by article, and in one book I well knew the price of, I found he had charged me one shilling more than it cost, and that shilling he kept in his pocket," with state- ments of other frauds ; on the trial the plaintiff had a verdict, subject to the opinion of the court on a special case ; upon the argument of the case judgment was or- dered for the defendant' Where, in an action of slander, it appeared that the plaintiff had applied to the under- sheriff to be appointed an officer, the latter applied to the defendant as to the fitness of plaintiff, held that the answer of the defendant was conditionally privileged." Where A. introduced the plaintiff to defendant, a ship's captain, who employed plaintiff as his mate, defendant afterwards dismissed plaintiff from his service, and wrote A. that he had done so on account of the intemperate habits of the plaintiff, this was held a privileged commu- nication. ^ The defendant being about to dismiss the plaintiff from his employ, called in a friend to hear what passed, and having dismissed the plaintiff, refused to give him a character, alleging to those who applied for infor- mation respecting the plaintiff, that he, defendant, had discharged the plaintiff for dishonesty. The plaintiff's brother afterwards inquired of the defendant why he had treated the plaintiff in such a manner, and that he (de- fendant) was keeping plaintiff out of employ. The de- ' Weatherstone v. Hawkins, i Term R. no. '^ Sims V. Kinder, i Carr. 279. ^ Tremaine v. Parker, 12 Law Times, 312. A letter addressed to a person on whose recommendation the writer had taken the plaintiff into his service, to the effect that his (plaintiff's) conduct had not justified the character given of him, and that he had left a balance unaccounted for, and that he ought not to be recom- mended for morality or honesty ; this was held to be privileged. (Dixon v. Parsons, I Fost. & Fin. 24.) 468 DEFENSES. [CH. IX. fendant answered, "He has robbed me ; and I believe for years past," adding that he concluded so from the cir- cumstances under which he had discharged the plaintiff. Erie, J., said, "The calling in a witness was consistent with a wish to spread defamation ; it was consistent also with the wish to do what a prudent man would desire to do. But if the effect of the evidence is equal both ways, the onus of proving malice lies upon the plaintiff. As to the words spoken to the plaintiffs brother, no malicious motive appears. The evidence, indeed, related to only one robbery, whereas the defendant spoke of having been robbed for years. But the communication was made in answer to an inquiry by the plaintiff's brother, and there are no circumstances to show that the extent of the state- ment actually made proceeded from malice, or went be- yond what might be said by a person honestly wishing to tell the whole truth."' The plaintiff had been in the em- ploy of the defendant and dismissed on a charge of theft. Plaintiff afterwards went to defendant's house to be paid his \vages, and was in conversation with the defendant's servants, when the defendant, addressing his servants, said, " I discharged that man (the plaintiff) for robbing me ; do not speak any more to him, in public or private, or I shall think you as bad as him." Maule, J., said. The evidence does not raise any probability of malice, and is quite as consistent with its absence as with its pres- ence ; and considering that the mere possibility of malice which is found in this case, and in all cases where it is not disproved, would not be sufficient to justify a finding for the plaintiff, it was right not to leave the question of malice to the jury. ' A defendant who had dismissed two servants, told one in the absence of the other. You 1 Taylor v. Hawkins, 16 Q. B. 30S ; 20 Law Jour. Rep. N. S. 313, Q. B. ; 15 Jurist, 706 ; and ante, § 244. - Somerville v. Hawkins, 10 C. B. 583 ; 15 Jurist, 450. § 246.] MASTER AND SERVANT. 4^9 have both been robbing me ; it was held conditionally privileged.^ The plaintiff being in the service of the de- fendant was discharged without any previous notice, and the plaintiff considering himself entitled to a months wages, in lieu of notice, refused to quit the defendant's house 'until those wages were paid him, whereupon the defendant had the plaintiff removed by a police officer. The defendant called on one Holland, in whose employ the plaintiff had previously been, and complained of plaintiff, requesting Mr. Holland not to give plaintiff another character. Subsequently, the plaintiff applied to Mr. Hand for employment, who inquired of defendant and received from him a letter, the material portion of which was as thus: "Rogers (the plaintiff) did not live with me six months, as he has told you, and I wish I had never taken him into my house, as he is a bad-tempered, lazy, impertinent fellow, and has given me a great deal of trouble. I was obliged to send for a police officer to put him and his things out of my house ; as I look upon it, he will take any advantage he can." On the trial the court left it to the jury to say if the defendant had acted maliciously; the verdict was for the plaintiff; leave was reserved to the defendant to move to enter a nonsuit. He moved, but his motion was refused.^ Where defend- 1 Manby v. Witt, and Eastmead v. Witt, i8 C. B. 544 ; 25 Law Jour. 294, C. P. 2 Rogers v. Clifton, 3 B. & P. 587. on the motion for a nonsuit, Lord Alvanley, Ch T said " If it were to be understood that whenever a master gives a bad char- acter to a servant who has quitted his service, he may be forced by the servant, in justification, to prove the truth of what he has stated, it would be impossible for any master (so understanding the law, at least with any regard to his own safety) to give any character but the most favorable to a servant, and consequently impossible for a servant not entitled to the most favorable character, to obtain any new place. Unques- tionably the master is not bound to substantiate the truth of what he says in giving a character to his late servant, but it is equally clear that the servant may, if he can prove the character to be false, and the question between the master and servant will always in such a case, be, whether what the former has spoken concernmg the lat- ter be malicious and defamatory ;" and per Rooke, J., " a master may, at any time, whether asked or not, speak of the character of his servant, provided that he speak in the honesty of his heart, and an action cannot be maintained against him for so 470 DEFENSES. [CH. IX. ant, plaintiff's former mistress, in a letter answering in- quiries as to plaintiff's character, stated acts of miscon- duct during the time of plaintiff's being in her service, and also subsequently to her having left it, and defendant had also stated the same to the persons who originally recommended plaintiff to her ; held, that the latter part of the letter was a privileged communication, and which the defendant was bound to make, and that the oral state- ment having been made only to the persons who recom- mended plaintiff, was not officious nor evidence of mal- ice, which in such an action is the gist, and must be ex- pressly proved.' In an action for slander of the plaintiff, in her character of a domestic servant, the plaintiff proved that, having lived some time with the defendant, she changed service upon a character given to her by the de- fendant ; that, some time afterwards, the defendant's wife, in a letter to her new mistress, alluded to the plaintiff, and to the character first given of her as being unmer- ited ; that thereupon the new mistress requested further information, and was told by the defendant's wife that she had discovered, since the time of the giving of the first character, that the plaintiff was dishonest. Held, that there was no evidence to be submitted to the jury of malice in the defendant's wife, and that the communica- tion was privileged. If a servant obtain a place upon the strength of a character given by his master, and the mas- ter afterwards discovers circumstances which induce him to believe that the character was undeserved, he is morally bound to inform the new master of those circum- doing ; at the same time, masters are not warranted in speaking ill of their sen-ants from heat and passion." Where the plaintiff charged his servant with robbing him, and the robbery charged consisted in giving away pieces of bread, the court charged the JU17 that if the pieces of bread given away were such pieces as the servant might reasonably suppose the master would not object to his giving away, the master was not justified in the charge of robber)', and the servant might recover. (Roberts -v. Richards, 3 Fost. & Fin. 507.) 1 Child V. Affleck, 9 B. & C. 403. § 246.] MASTER AND SERVANT. 47 ^ Stances, and the communication made concerning them is a privileged communication/ The plaintiff had been in the employ of defendant and his partners ; on plaintiff leaving their employ, defendant and his partners gave him a written recommendation, and plaintiff afterwards went into the employ of C. Subsequently, defendant saw C, and said he desired to set him right in regard to a young man (the plaintiff) in his em.ploy, that he was a liar, and he had doubts of his honesty ; held a condition- ally privileged communication.^ The letter of recom- mendation, if untrue, would have rendered him liable to any one injured thereby, and he was privileged to say what he did for his own protection. Plaintiff was in the service of the defendants (husband and wife) as governess for fourteen months. After she left she sought an en- gagement elsewhere, and on an inquiry being made to the defendant (the wife) concerning the plaintiff, the de- fendant answered in writing, " I parted with her (the plaintiff) on account of her incompetency and not being lady-like nor good tempered," adding, " May I trouble you to tell her (the plaintiff) that this being the third time I have been referred to, I beg to decline any further applications." Evidence was given of plaintiff's compe- tency, and of her being lady-like and good tempered. It was left to the jury to say whether the letter was written maliciously, and that stating what was untrue was evi- dence of malice. The plaintiff had a verdict, and the court above refused to disturb it.^ Where the plaintiff's master (the defendant) had, on his quitting his service, and being about to enter on another, written of his own accord a letter informing the party that he had dis- charged the plaintiff for misconduct, and on receiving a ' Gardner v. Slade, 13 Jurist, 826; 11 Law Jour. Rep. 334, Q- B. ; 13 Law Times, 282. ^ Fowles V. Bowen, 30 N. Y. 20. 3 Fountain v. Boodle, 3 Ad. & El. N. S. 5 ; 2 Gale & Dav. 455. 472 DEFENSES. [CH. IX. letter inquiring the particulars, had written the libelous letters for which the action was brought ; held, that al- though a party might set hhnself in motion to induce inqttiries by a third party, and the answers, although slanderous, might come within the scope of a privileged communication, yet in such a case it would be a question for the jury to say if the defendant acted bona fide, or maliciously intending to do the servant an injury.' A. (plaintiff) having left B.'s (defendant's) service at her own desire, in consequence of B.'s accusing her of dishonesty, returned to B.'s house for her boxes, and B. then charged her with theft and told her that if she had not come back he would have said nothing about it ; upon A.'s inform- ing B. that C. intended coming to him for her (A.'s) character, defendant said he should give A. no character, unless she confessed to the alleged theft. C. went to defendant for A.'s character ; defendant told C. that A. was dishonest. In an action for slander, held, that the occasion was privileged, but that the statement of defend- ant to plaintiff was evidence from which malice might be inferred, and that the judge upon the trial did right to leave the question of malice to the jury, and in asking them the question whether defendant believed his impu- tation to be true.^ The plaintiff was defendant's gar- dener. The defendant having dismissed plaintiff from his service, wrote E., on whose recommendation defend- ant had originally engaged plaintiff, stating inter alia, '' On Saturday I had another scene with F. (plaintiff) in my garden. He was extremely violent, came towards me several times with an open clasp knife in his hand and his eyes starting from their sockets with rage, a per- fect raving madman. I was fortunately accompanied by my upper servant. He accused me of having opened a I Pattison v. Jones, 8 B. & C. 587 ; 3 C. & P. 383 ; 3 M. & R. lOi. - Jackson v. Hopperton, 10 Law Times, N. S. 529. § 247-] CANDIDATE FOR OFFICE. 473 letter of his * * * I think it right you should be informed of F.'s (plaintiff's) violent conduct, as you might unwittingly recommend him without bemg aware of his temper and faults." R, who was the superintend- ent of the Royal Horticultural Society, of which defend- ant was a member, was in the habit of recommending gardeners to the members of the society, and plamtifif had as defendant knew at the time he wrote the letter, applied to E to procure him another situation ; held, that the letter could not be considered as privileged, as there were expressions in it, such as plaintiff's being a ''j^ving mad- man " which went beyond what was justifiable, although the jury found the communication was made bona fide and without malice.' 8 247 As respects publications concerning candidates for office, we take upon ourselves, with due deference to the decisions, to say, that the same rule applies to them as to communications made concerning candidates for employment generally (§ 245). The rule, as we suppose must be the same for every kind of employment, and office is only another name for employment. The right which one has to speak concerning a candidate for em- ployment as a mechanic or domestic, is neither more extensive nor more limited than the right one has to speak of a candidate for the office of a legislator or a jud-e As respects a candidate for employment gene- rally so with respect to a candidate for office ; the pub- hcation, to be privileged, must, with certain exceptions (8 244) be limited to the persons interested. A general publication, as well to those interested as to those not interested, would not be privileged. Again, the matter 1 Fryer v. Kinnersley. 15 C. B. N. S. 429 I 33 Law Jour. 96, C. P. In Cowles v Potts 34 Law Jour. 248, Q. B. by counsel: It is difficult to understand the case of F^l;' Kinnersley; ar.d by Blackburn, J.: I do not quite understand the .... decidendi of that case. 474 DEFENSES. [CH. IX. published must be such as is relevant to the subject- matter, and necessary to be known by the persons in interest for their own protection. Thus, the publication in a newspaper of defamatory matter concerning a candi- date for appointment, was held not to be privileged, and that to have been privileged the publication should have been limited to the appointing power (§ 243) ; ' so limited it would have been privileged ; as where defend- ant, at the request of a senator of the United States, in order to give him information as to the fitness of the plaintiff for the office to which he was nominated, spoke the words charged in the declaration, and referred to the records of a court for their confirmation, it was held that there was nothing from which to imply malice, and that the plaintiff" could not sustain his action." Where a can- didate for the representation of a borough circulated an address to the electors, asking for their suff"rages, and claiming to be a fit and proper person to represent them in Parliament, and an elector in that borough published in a newspaper two letters addressed to the candidate, the first in answer to the circular, and the second in con- sequence of the treatment he had received from the can- didate on the day of nomination at the hustings, and both letters contained imputations on the private char- acter of the candidate ; on the trial of an action for libel, the judge charged the jury that the occasion did not justify the publication, and the plaintiff" had a verdict. On a motion for a new trial, it was claimed that it was » Hunt V. Bennett, 19 N. Y. 173, affi'g 4 E. D. Smith, 647. 2 Law V. Scott, 5 Har. & J. 438. A statute in Pennsylvania provides : No person shall be subject to prosecution by indictment for investigating official conduct of public officers, &c. Where a person consents to become a candidate for public office, conferred by a popular election, he must be considered as putting his character in issue so far as it may respect his qualification for the office. (ComVealth v. Odell, 3 Pittsb. [Pa.] 449.) The qualification of a candidate is a fit subject of comment, but private character is not to be attacked. (Rearick v. Wilcox, 10 West. Jur. 681.) 8 247-] CANDIDATE FOR OFFICE. 475 justifiable for an elector bona fide to communicate to the constituency any matter respecting a candidate which the elector believed to be true and material to the election The principle was conceded by the court to be correct, but was held inapplicable, because the com- munication had not been confined to the constituency of the plaintiff, but had been picblished 2n a news- MPer^ Where the plaintiff was a candidate at a Ineral election for re-election as a State Governor, the defendant published defamatory matter of the plaint- iff in "An address to the electors of the State of New York" In an action of libel for this publication it was contended on the part of the defendant that the plaintiff could not recover unless upon proof of " express malice: The court denied this position, and held hat malice was to be implied from the falsity of the publica- tion.^ In an action of slander, laying special damage, it > Duncombe v. Daniell, 8 C. cS. P. 213 ; I W. W. & H. loi, Denman, C J. How- ever TaLe the privilege of electors n.ay be, it is extravagant to suppose that U can justify the publication to .// tke ..orM of facts injurious to a person who happens to stand in the situation of a candidate. ^ Lewis V Few, 5 Johns, i. In Harwood v. Astley (4 Bos. & Pul. 47 ; ^ N. R_ 47), an action for' slaider of a candidate for election to ^-l^^VprltpX Succeeded and had judgment, which the court, on wr.t of ^^Y::!^ZlxlZ^^ol. if not solely on the ground that the jury must have found the publication be I/SI, aid therefore not privileged. Oncers and candidates for offices m^^^^^ canvassed, but not calumniated. C^eely -Blau,^^rlgh^ 358, 68 se Brewer .^ Weakley, 2 Overt. 99; Root .. King, 7 Cow. 6x3 ; f^^^'^^^ "'^ an 'ac- Starkie on Slander, 301.) In Mayrant .. R-^-^^^"^, ^A Nott T tha when a tion of slander against a candidate for office, it was held by Nott J., that when a Tn becomes a candidate for public honors, he makes profert of himself for public rnves^catron. No one has the right to impute to him infamous cnmes or mis ,„aHfic,.io„s tor office." B„. see Curtis . Mussey 6 Gray .6. A^-^;J'- Print Co Q Minn. 133 ; see ante, p. 440, note 3- it ib not even a ^ , , • , fv^n. of publishing drfama-ory ,r,a...r of a candidate for office that tl>e so e object 7the publication ^vas to defeat the plaintiff. (Rearick v. W.lcox, .0 Western J«.. 4/6 DEFENSES. [CH. IX. appeared that plaintiff, a trustee of a charity, asked C, by whom he was employed as bailiff, to obtain signatures to a protest against his (plaintiff's) removal from his office of trustee. C. asked defendant for his signature, defendant refused, and on being pressed for his reasons for refusing, said that he would not keep a big rogue like plaintiff in the trust, and he explained the reasons for this opinion, which were that plaintiff had left the parish under discreditable circumstances and without settling with his creditors, including the defendant. He also added he was surprised C. employed such a man. In consequence of this statement, C. dismissed plaintiff from his employ. The jury found that defendant had not acted with malice, held that the words were privileged, and verdict entered for defendant' And where the plaintiff was a candidate for re-election as overseer ; at a meeting to elect overseers, the defendant charged the plaintiff with having, while in office as overseer, mis- appropriated the parish funds — held that, unless this state- ment was a malicious abuse of the occasion, it was privi- leged.^ § 248. Insanity is a complete defense to an action for slander or libel. ^ Fools and madmen are tacitly excepted ' Cowles V. Potts, 34 Law Jour. Q. B. 247. ^ George v. Goddard, 2 Fost. & F. 689. ' Bryant v. Jackson, 6 Humph, igg ; Yeates v. Reed, 4 Blackf. 463 ; Dickinson V. Barber, g Mass. 225. Perhaps delirium tremens is a defense ; for it is a species of insanity, and, like insanity from other causes, affects the responsibility for crime. (Maconnehey v. The State, 5 Ohio, N. S. 77 ; O'Brien v. The People, 48 Barb. 275.) A lunatic is liable for a trespass. (Weaver v. Ward, Hob. 134 ; Krom v. Schoon- maker, 3 Barb. 647 ; Bullock v. Babcock, 3 Wend. 3gi ; Rae's Medical Juris, no ; Mason v. Keeling, 12 Mod. 332; 2 Monthly Law Reporter, N. S. 487.) In the chapter in the Roman Law, entitled " Si quis Iniperatori malcdixerit," is a passage which, being interpreted, reads : "If the evil speaking proceed from levity, it is to be despised ; if from madness, it is to be pitied ; if from a sense of wrong, it is to be forgiven." It is not a defense to an action of slander or libel, that the words were not spoken in earnest, but as a jest, and that the defendant did not expect to be believed. (Hatch V. Potter, 2 Gilman, 725 ; Holt on Libel, 2go, 291 ; Long v. Eakle, 4 Md. §§ 249> 250.] DRUNKENNESS, APOLOGY. 477 out of all laws/ And Coke said : A madman is only punished by his madness. A judgment in action for slander was perpetually enjoined, upon the ground that at the time of the speaking the words, and of the rendi- tion of the judgment, the defendant was insane in refer- ence to the subject of the slander.^ § 249. Drunkenness is not a defense to an action for slander or Hbel,^ nor is infancy .'^ but drunkenness may, perhaps, be a matter of mitigation.^ § 250. It is a good defense to an action for Hbel, that after the publication the plaintiff agreed with the defend- ant to accept the publication of an apology in full for his cause of action, and that such apology had been pub- 454 ; McKee v. Ingalls, 4 Scam. 30; Wood's Civil Law, 247; and see Pieter Ton- neman v. Jan de Witt, Valentine's Corporation Manual for 1849, p. 402 ; Addison on Contracts, 261.) An action for a tort would not lie if the act -was done in jest. (Digest, xlvii, 10, 8; Spence's Origin of Laws, &c. 151.) Among the Percy Anec- dotes, Division " The Bar," is an anecdote of a suit for slander brought by Serjeant Maynard, entitled " Golden Pippins and Pig," and in which it is stated the serjeant had a verdict in his favor, but judgment was arrested in consequence of the words complained against, " being the burden of an old story which had been applied to the Serjeant in jest, and without any intention to slander." In Campbell's Lives of the Lord Chancellors (V, ch. civ, p. 31), this anecdote is related more circumstan- tially. That words spoken in jest held to be a defense. (Adkins v. Williams, 23 Ga. 222 ; see Donoghue v. Hayes, Hayes' Ir. Ex. R. 265 ; note to § 281, post.) 1 Holt, Ch. J., City of London v. Vanacker, Carthew, 483. " There is no slander in an allowed fool." (Twelfth Night, act i, sc. v.) 2 Horner v. Marshall, 5 Munf. 466. 3 McKee v. Ingalls, 4 Scam. 30 ; Reid v. Harper, 25 Iowa, 87. As to defense of intoxication in an action on an express contract, see Gore v. Gibson, 13 M. & W. 623. •* Defries v. Davis, i Bing. N. C. 692 ; i Scott, 594. An infant two years old is not liable criminaliter for a nuisance erected on his lands. (The People v. Towns- end, 3 Hill, 479.) And one aged only eleven years, seized of lands in the usual oc- cupation of his guardian in socage, is not indictable for the non-repair of a bridge ratlone tenure. (Rex v. Sutton, 5 Nev. & Man. 353 ; see cases collected in a note in 5 Monthly Law Reporter, N. S. 364, Boston, Nov. 1852.) ^ Howell V. Howell, 10 Ired. 84; and see Isley v. Lovejoy, 8 Blackf. 462; Gates V. Meredith, 7 Ind. 440. 31 478 DEFENSES. [CH. IX. lished.' And it seems that an agreement that the slan- derer should write a letter to a third party, exculpating the person slandered from the charge, is satisfaction of the injury, and his so doing is evidence of an accord and satisfaction.^ Formerly a defense of accord and satisfac- tion did not require to be specially pleaded.^ Now it must be pleaded specially. '^ § 251. A former recovery for the same cause is a bar to an action for slander or libel.^ A judgment in an ' Boosey v. Wood, 3 Hurl. & Colt. 484. An agreement not to bring any action in consideration of the defendant's destroying certain documents relating to the charge imputed to the plaintiff, which the defendant accordingly destroyed, held to be accord and satisfaction. (Lane v. Applegate, I Starkie, 97.) Where, in an action of slander, an agreement had been made, in consequence of which the defendant signed a paper stating that " at his request the plaintiff had consented on his paying the costs of the action as between attorney and client, and making an apology for his conduct to stay the proceedings therein," the court held that it was an absolute and not a conditional agreement, and in default of defendant paying the costs, made a rule absolute for signing the judgment as for want of a plea. (Yardrew v. Brook, 2 Nev. & M. 835.) As to the settlement of an action for slander as the considera- tion for a promise, see O'Kesson v. Barclay, 2 Penn. St. R. 531 ; approved Morey v. Newfane Township, 8 Barb. 653; and see Shephard v. Watrous, 3 Gaines R. 166. By statute 6 & 7 Vict. ch. 96, it is provided that in any action for defamation the defendant, after notice, may give in evidence, in mitigation, the making or offer to make an apology. (See note to § 2^2, post.) ^ Smith V. Kerr, i Barb. 155 ; see Eiffe v. Jacob, i Jebb & Symes, 257. An ac- cord and satisfaction by one or some of several wrong-doers, is a satisfaction as to all. (Strang v. Holmes, 7 Cow. 224 ; Knickerbacker v. Colver, 8 Id. ill.) It fol- lows that a partial satisfaction by one of several wrong-doers is a satisfaction pro taiito as to all. (Merchants' Bank v. Curtis, 37 Barb. 320.) As to a plea of apology and payment into court in England, see Stat. 6 & 7 Vict. ch. 96 ; 15 & 16. Vict. ch. 76 ; Chadwick v. Herepath, 3 C. B. 885 ; O'Brien v. Clements, 3 Dowl. & L. 676 ; Lafone v. Smith. 3 Hurl. & N. 735 ; 4 Id. 158; Ingram v. Ferguson, i New Pr. Cas. 4S6. ^ 2 Greenl. Ev. 321; Lane v. Applegate, i Starkie, 97; King v. Waring, 5 Esp. 13; Eiffe V. Jacob, i Jebb. & S. 257 ; Wadsworth v. Bentley, 23 Law Jour. 3 Q. B. Reparation by one publisher of a libel, and the discontinuance of the action against him, is no bar to an action against another publisher of the same libel. (McMillan V, Boucher, 12 Low. Can. Jour. 319.) * A plea of accord held bad. (Davis v. Ockham, Styles, 245.) * Campbell v. Butts, 3 N. Y. 173. The plaintiff having once recovered, cannot afterwards recover for any subsequent loss by the same words. (Bull. N. P. 7.) Where the cause of action is the same, a judgment between the same parties is binding on each, and it is immaterial that the fonn of action is different, if the cause of action be the same. (Hitchin v. Campbell, 2 W. Bl. R. 827; ante, § 119.) g 251.] FORMER RECOVERY. 479 action of slander, for a particular charge, bars any other action against the defendant in that action for the same charge, though made on a different occasion, if made before suit brought ; and, therefore, though there be but one count for particular words, proof that they were spoken by defendant on distinct occasions before suit commenced is competent/ It is no bar to an action for slander or libel that in a former action for the publication of the same words, on an occasion different from that alleo-ed in the declaration, the defendant obtained a ver- diet and judgment in his favor. It was not for the same cause of action.' A recovery by the husband for slander- ous words spoken of himself and wife, is not a bar to an- other action by the wife for the same slanderous words, in which the husband is joined as a nominal party plaintiff.3 A recovery in an action for calling plaintiff a thief, not in the way of his trade, held not to be a bar to a subsequent action for words imputing to plaintiff in the way of his trade that he was dishonest and a cheat.^ A recovery in an action for malicious prosecution is a bar to a subsequent action for slander, for the accusation uttered for the purpose of having the arrest made, and 1 Root V. Lowndes, 6 Hill, 518. - Henson v. Veatch, i Blackf. 369. 8 Bash V. Sommer, 20 Penn. (8 Harris), 159 ; and see ante, note 3, p. 162. A re- covery against one of several parties to a joint tort precludes the plaintiff from pro- ceedings against any other party not included in such action. (Cro. Jac. 74 ; Yelv, 68.) And this, although the judgment in the first action is unsatisfied. (Brinsmead V. Harrison, Law Rep. 6 C. P. 584.) But where the evidence and the damage in the two actions might be different, as where two persons on different occasions have pub- lished the same libel, separate actions may be supported against each. (2 B. & P. 69.) Where a verdict with nominal damages (40s.) had been obtained against the publisher of a libel, that was held not to be any justification in an action against the author of the libel, nor to furnish any reason for not giving substantial dam- ages, and the plaintiff had a verdict for ;^450. (Frescoe v. May, 2 Post. & F. 123.) The pendency of other actions against other publishers of the same defama- tory matter, not a mitigating circumstance. (Harrison v. Pearce, i Fost. & F. 567.) * Wandsworth v. Bentley, 23 Law Jour. Q. B, 3 ; 17 Jur. 1077. 480 DEFENSES. [ciI. IX. on the occasion when it was made.' But where the de- fendant published the accusation before or after making his complaint to have the plaintiff arrested, an action for that publication is not barred by the recovery in the action for the malicious prosecution.^ An applica- tion for a criminal information against a party for the publication of a libel, which application has been refused, is no bar to an action on the case for the same ground of complaint.3 At one time the defense of a former recovery might be given in evidence under the general issue ;* now, the defense of a former recovery- must be pleaded. § 252. Whatever else may be intended by the phrase "freedom of the press," or "liberty of the press," it means the freedom or liberty of those who conduct the press. This freedom or liberty, properly understood, means only that for which Milton put forth his eloquent plea : " unlicensed printing." " The liberty of the press consists in printing without any previous license, subject to the consequences of law. The licentiousness of the press is Pandora's box — the source of every evil." = " The liberty of the press is connected with natural liberty. The use and liberty of speech were antecedent to Magna Charta, and printing is only a more extensive and im- proved kind of speech." ^ " The liberty of the press, ' Sheldon v. Carpenter, 4 N. Y. 579. And semble, a recovery in an action for slander will not bar an action for malicious prosecution. (Jarnigan v. Fleming, 43 Miss. 911.) " Rockwell V. Brown, 36 N. Y. 207 ; and see Schoonover v. Rowe, 7 Blackf. 202. ^ Wakley v. Cooke, 16 Law Jour. Rep. Ex. 225; 9 Law Times, 513 ; 16 M. & W. 822. ■* Campbell v. Butts, 3 N. Y. 173. '" Attributed to Lord Mansfield, cited Root v. King, 7 Cow. 628, and commented on I Mence on Libel, 158. ^ Essay on the Liberty of the Press, chiefly as it respects personal slander, by Bishop Hayter, p. 6. § 252.] FREEDOM OF THE PRESS. 48 1 therefore, properly understood, is the personal liberty of the writer to express his thoughts in the more improved way invented by human ingenuity in the form of the press."' "The liberty of the press consists in the right to publish with impunity, truth with good motives and for justifiable ends, whether it respects governments, magistracy, or individuals."^ In the sense of unlicensed, the press has been free since A. D. 1694,3 and, except ^ Holt on Libel, bk. i, ch. 4. ^ Hamilton, arg., The People v. Croswell, 3 Johns. Cas. 360 ; and see The Fed- eralist, No. Si — The Fourth Estate ; Areopagitica, a speech for the liberty of un- licensed printing (Holt White's edition is the best); Story on the Constitution, §§ 1S80 to i88g ; i Tindal's continuation of Rapin's History of England, 350 ; Re- marks on Pultney's bill to prohibit the circulation of unlicensed newspapers. " The liberty of the press, when rightly understood, consists in laying no previous re- straints upon publications, not in freedom fi-om censure for criminal matter when published." (4 Stephens' Com, 346.) " The law of England is a law of liberty, and consistently with this liberty, we liave not what is called an iinpriinatur ; there is no such preliminary license necessary ; but if a man publish a paper he is exposed to the penal consequences, as he is in every other act if it be illegal." (Rex v. Cob- bett, 29 How. St. Tr. 49.) By liberty of the press, I mean complete freedom to write and publish without censorship and without restriction, save such as was ab- solutely necessary for the preservation of society. (Fitzgerald, J., 11 Cox Cr. Cas. 49.) ^ On the introduction of the printing press into England, at the expense of the government, the press was regarded as a State right, and subject to the coercion of the crown. (See Hills v. University of Oxford, I Vernon, 275; Basket v. Univer- sity of Cambridge, 2 Burr. 661.) It was regulated, therefore, by the king's procla- mations, prohibitions, charters of privileges, and licenses, and then by the decrees of the Court of the Star Chamber, until the abolition of that court in 1641. The Long Parliament, in 1643, assumed the power of licensing, and this was continued by various statutes till 1694. The printing press was regarded as too dangerous a contrivance to be suffered to be free. Governor Dongan was instructed (A. D. 1688) not to allow any printing press in New York, although Massachusetts had at that time enjoyed a printing press for nearly thirty years. The judges were unanimously of opinion that by the common law of England, no man not authorized by the crown, had the right to publish political news. (London Gazette, May 5 and 17, A. D. 1680.) " It was from the press that originated what is in fact the main dis- tinction of the ancient and modern world — public opinion." (Holt on Libel, 61.) Whittier calls a newspaper an "opinion mill," and speaks of an editor who Had left the Muses' haunts to turn The crank of an opinion mill. The Constitution of the United States provides : Congress shall make no law abridging the freedom of speech or of the press. (Amend't of 1789, art. i.) The 482 DEFENSES. [CH. IX. in respect to newspapers, no greater degree of liberty for the press has ever been claimed.' But as respects news- papers, it is argued that the exigencies of the business of a newspaper editor demand a larger amount of freedom ; that circumstances do not permit editors the oppor- tunity to verify the truth prior to publication, of all they feel called upon to publish, and that they should not be responsible for the truth of what they publish. Some concessions have already been made to these arguments. At present the law takes no judicial cognizance of news- papers, and independently of certain statutory provisions, the law recognizes no distinction in principle between a publication by the proprietor of a newspaper and a publi- cation by any other individual.^ A newspaper proprie- tor is not privileged as such in the dissemination of news, but is liable for what he publishes in the same manner as any other individual.^ This being the case, after refer- Constitution of New York provides : Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or of the press. (Constitution of 1846, art. 7, § 8.) This is repeated in the Bill of Rights of that Slate, and similar provisions are, we believe, to be found in the Constitution of every State of the Union. ' " The courts have found it embarrassing to preserve in just harmony and pro- portion, the protection due to character and- the protection which ought to be afforded to the liberty of the press." (i Kent Com. 636.) " Davidson v. Duncan, 7 El. & B. 231 ; Campbell v. Spottiswoode, S Law Times Rep. N. S. 201 ; 3 Fost. & F. 421. * The right to criticise is general; it is not the peculiar privilege of the press. (Kane v. Mulvany, 2 Ir. C. L. 402.) A writer in a newspaper has no other or greater privilege than any other individual. (Campbell z). Spottiswoode, 8 Law Times, N. S. 201.) As to privilege, there is no difference between a publication by a newspaper or a private individual. (Davison v. Duncan, 7 El. & Bl. 231.) "Con- ductors of the public press have no rights but such as are common to all. (Sheckell z: Jackson, 10 Gush. 26.) But in this country, every citizen has the right to call the attention of his fellow citizens to the maladministration of public affairs or the misconduct of public servants, if his real motive in so doing is to bring about a re- form of abuses, or to defeat the re-election or reappointment of an incompetent officer." (Smith, J., Palmer v. City of Concord, 48 N. H. 216.) On March 14, 1859, in the New York Senate, Mr. Ely introduced a bill to amend chapter 130 of the Laws of 1S54, by providing that no publication in any newspaper, respecting any 252-] FREEDOM OF THE PRESS. 483 ring to the statutory provisions affecting publications in newspapers, it will be unnecessary separately to consider what a newspaper proprietor may or may not publish with impunity ; we can review his rights and duties un- der the (general head of criticism/ person holding office shall be deemed a libel, and providing that any assault upon the person of an editor who has made any suqh publication shall not be illegal or punishable, unless resulting in the death or maiming of the person as- saulted. 1 Among the statutory provisions relating to libels in newspapers are : 38 Geo. Ill, ch. ySrentitled, An act to prevent the publication of newspapers by persons not known, &c'., among other provisions, requires that before any newspaper is started, the proprietor must file an affidavit by the printer, publisher, and proprietor, stating the place where the paper is to be printed, and its title. This act was amended 5 Wm. IV, ch. 2. 32 Geo. Ill, ch. 60, entitled, An act to remove doubts respecting functions' of juries in cases of libel. This is the statute enabling juries to give a general verdict in actions of libel. The iSth section provides for a discovery in ac- tions of libel. 60 Geo. Ill, ch. 8, am'd, i Geo. IV, ch. 73, to prevent and punish blasphemous libels. 60 Geo. Ill, ch. 9, to restrain abuses arising from -the publica- tion of blasphemous libels. This act requires newspaper proprietors to give security to pay the damages and costs in actions for libels published in the papers owned by them. 6 & 7 Vict. ch. 96, an act to amend the law respecting defamatory words and libel. (Am'd 8 & 9 Vict. ch. 75.) It provides, among other things, that in actions for libels in newspapers or periodicals, the defendant rfiay plead that the libel was inserted without actual malice, and without gross negligence, and before the action, or at the earliest opportunity afterwards, he published an apology; and gives liberty, with the plea of apology, to pay money into court. This act, it has been held, does not apply to criminal prosecutions. (Reg. v. Duffy, 2 Cox Cr. Gas. 45 ; 9 Ir. L. R. 329.) As to this statute, see Chadwick v. Herepath, 3 C. B. 885 ; O'Brien v. Clem- ents, 3 Dowl. & L. 676. The Times newspaper having published in the letter of a correspondent, that plaintiff, a tailor, had been flogged for an assault on a provost marshal, was furnished with a contradiction which it delayed publishing until after an action for libel had been commenced, held that this delay justified large damages, and that no plea under 6 cS: 7 Vict, could be allowed. (Smith v. Harrison, i Fost. & F. 365.) Where a defendant pleads an apology and payment into court, if the jury find the apology not sufficient, the jury are to assess the damages irrespective of the amount paid into court, and may give a verdict for less than that amount. (Jones V. Mackie, Law Rep. 3 Ex. I.) As to the statutes of 60 Geo. Ill, see Re Chaplin, 2 Hurl. & Colt. 270 ; Re Clements, 12 Law Times, 380 ; 18 Law Jour. Ex. 304 ; Re Gregory, 13 Law Times, 142 ; and see 32 & 33 Vict. ch. 24, which repeals 6 & 7 Wm. IV, ch. 76. A plea of payment into court and apology not allowed with a tra- verse of the defamatory sense imputed. (Barry v. McGrath, 3 Irish C. L. 576.) As to plea of apology, see Rish Allah Bey v. Johnstone, 18 Law Times, N. S. 620 ; Cotton V. Beaty, 13 Up. Can. C. R Rep. 213 ; see notes 2, p. 398. and 2, p. 478, ante, and Laws of N. Y. 1852, ch. 165 ; Id. 1868, ch. 430 ; Sanford v. Bennett, 24 N. Y. 20. 484 DEFENSES. [CH. IX. § 253. To criticise, in its widest signification, means passing an opinion, commenting. In this sense every one is continually criticising,' and every one is continually furnishing occasion for criticism. Criticism may mean praise or censure. The latter is the sense in which it is more frequently employed, and is the only sense in which it enters into our present inquiry. We use criticism as a synonym for " fault-finding." Sometimes the term criticism is limited so as to indicate only " fault-finding" in matters of literature and art, or in respect to persons engaged in offices of public trust. We do not attempt to define, with any degree of precision, what is the ordi- nary sense of the term criticism, because we believe it has no definite connotation, and because we do not recog- nize any distinct or independent right, such as seems generally supposed to be implied in or to exist under the designation oi criticism. In our opinion, one cannot, by styling defamatory mattei* criticism and the defamer a critic, escape from those rules which apply to defamatory matter generally. § 254. Criticism may be divided into criticism of per- sons and criticism of things. What one does, one's actions are things, and as such have a separate existence distinct from the person. Every action, every tiling one does, is naturally and necessarily the subject of comment. Every action, eve^y thing one does confers a privilege upon every person to speak or write concerning snck actio7i or thing. As to such action or thing every one may, in good faith, speak or write whatever seems to him fit to be spoken or written (§ 204). Save good faith, there is no limit to criticism concerning a man's actions or his creations. " God forbid (exclaimed Baron Alder- ^ What distinguishes man from the other animals is, that he alone has the faculty of meddling with what does not concern him. (The Abbe Galiani.) e ^c^ 1 CRITICISM. 4^5 son) ' that you should not be allowed to comment on the condua of all mankind, provided you do it justly and honorably." " Public men, and above all public writers, must not complain if they are sometimes rather rough y treated. Public writers, who expose themselves to criti- cism, must not complain that such criticism is sometimes hostile " ^ " No criticism of a person holding a public ofhce is libelous unless malicious."3 «,No one can doubt the importance in a free government of the right to can- vass the aas of public men and the tendency of public measures-to censure boldly the conduct of rulers, and to scrutinize the policy and plans of government. ihis is the great security of a free government. * An editor may comment freely on the ac^s of government officers or individuals, and indulge in occasional mirth and wit, and it is only when the character of the publica- tion is malicious, and its tendency to degrade and excite to reveno-e, that it is condemned by the law, and subjects the pubhsher to prosecution." ^ " Liberty of criticism must be allowed, or we should have neither purity of taste or of morals. Fair discussion is essentially neces- sary to the truth of history and the advancement of science. That publication, therefore, I shall never con- sider as a libel which has for its object not to injure the reputation of any individual, but to correct misrepresen- tations of fact, to refute sophistical reasoning, to expose a vicious taste in literature, or to censure what is hostile to morality."^ " Every man who publishes a book com- 1 Gathercole v. Miall, 15 M. & W. 31 9- 2 Campbell v. Spottiswoode, 3 Fost. & F. 421. 3 Harle z^. Catherall, 14 Law Times, N. S. 801. So said of language concerning one who held the office of " way-warden." •* Stoiy on the Constitution, § 1SS8. 5 Tappan v. Wilson, 7 Ohio, 193. 6 Ld EUenborough, Tabart v. Tipper, i Camp. 35° ; and see Cooper v Stone, 24 Wend 442. An application for an information was refused against one for pub- 1 'hin. tlr'at Ward's piil and drop had done great mischief in twelve different cases. 4S6 DEFENSES. [ciI. IX. mits himself to the judgment of the the pubhc."' " It is of the last importance to literature, and through litera- ture to good taste and good feeling, to morality, and to religion, that works published for general perusal should be such as are calculated to improve, and not to de- moralize, the public mind ; and therefore it is of vast importance that criticism, so long as it is fair, reasonable, and just, should be allowed the utmost latitude, and that the most unsparing censure of works which are fairly subject to it should not be held libelous. A man who publishes a book challenges criticism ; he rejoices in it if it tends to his praise, and if it be likely to lead to an increase in the circulation of his work, and therefore he must submit to it if it be adverse, so long as it is not prom])ted by malice, or characterized by such reckless disregard of fairness as indicates malice towards the author." " § 255. But, as respects' the poison, except in the in- stances and to the extent heretofore pointed out, there is no privilege 0/ criticis7it. Defamatory language concern- ing a person can never be justified merely on the ground that it w^as published as a criticism. Whenever defama- tory matter concerning a person is justifiable — i. e., not and that they were a compound of poison and antimony, &c. (Rex v. Roberts, 3 Bac. Abr. tit. Libel, 492.) In Hibbs v. Wilivinson (i Fost. & F. 60S), the action was for libel, first of the plaintiff generally, secondly as a clergyman. It appeared that defendant had published a pamphlet entitled "Truth Vindicated," and the alleged lil^els were contained in a review of that pamphlet published in a news- paper. Verdict for defendant; and by Erie, C.J : Where the plaintiff and defend- ant have both had recourse to the press, and the libel has been published in the course of a discussion in which both parties have been before the public, and in which the plaintiff Jirst had recourse to the press, and made the matter public, it is important to see if malice has been made out against the party sued, or if he has published only what he believed was required for the interests of truth. ' Carr v. Hood, I Camp. 35S; see Reade v. Sweetzer, 6 Abb. Pr. R. N. S. g, in a note, a lengthy report of the trial of an action for libel on plaintiff as the author of Griffith Gaunt. - Cockburn, C. J., Strauss v. Francis, 4 Fost. & F. 1114, g 255.] CRITICISM. 4S7 actionable — it is on some other frround than that the language was published as a criticism. "No man has a right to render the person or abilities [inseparable inci- dents to the person] of another ridiculous."' "I think no /'^r^^;2^/ ridicule of the author is justifiable."^ If an author " has made himself ridiculous by his writings, he may be ridiculed ; if his works show him to be vicious, his reviewer may say so. But the latter has no right to violate the tritth in either respect." ^ " If the jury can discover anything personally slanderous against the plaintiff [an author] unconnected with the works he has given to the public, in that case the plaintiff has a good cause of action." '^ Without pretending to elicit the true source of the confusion of thought so obvious in all the dicta and decisions upon the subject of criticism, we ven- ture to assert that the difficulty is occasioned by, (i) ' Holt, Ch. J., Rex v. Tutchin, 2 Ld. Raym. 1061. 2 Best, Ch. J., Thompson v. Shackell, Mo. & Malk. 187. ' Cooper V. Stone, 24 Wciul. 442. Does not this mean the reviewer can only justify ridiculing an author, or accusing him of being vicious, by a defense of truth. ■* Ld. Ellenborough, Carr v. Hood, i Camp. 358. But in the same case his lord- ship is reported to have said : "If the defendant only ridiculed the plaintifi" aj- a« author, the action could not be maintained." In the case of Stuart v. Lovell, 2 Stark. Gas. 73, the plaintiff being one of the proprietors of the Courier newspaper, brought his action for libel against the de- fendant, the editor of the Statesman newspaper. Lord Ellenborough, in charging the jury, observed: " In the first place, the plaintiff was described as the prosti- tuted Courier, and his full-blown baseness and infamy were represented as holding him fast to his present connections, and preventing him from forming new ones. It was certainly competent in one public writer to criticise another, exerting his talents in all the latitude of free communication belonging to z.ptMic writer ; and so it ap- peared to Lord Kenyon, in Heriot v. Stuart (i Esp. Gas. 337), that the opinions and principles of a public writer were open to ridicule, in the same way as those of any other author, but that the privilege did not extend to calumnious remarks on the private character of the individual. In that respect, the editor of a newspaper en- joyed the rights of protection in common with every other subject. Since, then, the defendant in this case had stigmatized the defendant as the venerable apostle of tyranny and oppression, and as a man whose full-blown baseness and infamy held him fast to his present connection, because they left him without the power of fonn- ing new ones; in all this he had undoubtedly overstepped the limits which had been drawn, and by which his conduct ought to have been regulated." 488 DEFENSES. [cil. IX. overlookino; the distinction between lanc^uao^e concerning the person and language concerning a thing ; and (2) in treating certain persons— authors, artists, . Telfair, 20 Barb. 11 ; Fry v. Bennett, 5 Sandf. 54; Haight v. Cornell, 15 Conn. 74 ; Mix V. Woodward, 12 Conn. 262 ; Thompson v. Grimes, 5 Ind. 385 ; M'Kinly v. Rob, 20 Johns. 351 ; Archbold v. Sweet, 5 C. & P. 219 ; l Mo. & Rob. 162 ; Kerr V. Force, 3 C ranch C. C. 8 ; see ante, § 281. '' Tomlinson v. Brittlebank, i Har. & W. 573. § 286.] TROVINCE OF COURT AND JURY. 529 plainly see upon the face of the record that the matter charged cannot in any way be libelous.' On not guilty pleaded, whether the defamatory matter was published concerning the plaintiff, or whether by the person men- tioned the plaintiff was intended, is a question of fact for the jury.^ Where the declaration alleged the pub- lication of a certain "libel concerning the plaintiff," but contained no innuendo, colloquium, or inducement to connect the publication with the plaintiff, and no evi- dence but the publication itself was offered to connect him therewith, it was held to be a question for the court, as a question of construction, to determine whether or not the publication referred to the plaintiff.^ Where no extrinsic facts are offered in evidence, or if the language is ambiguous, the question of libel or no libel is, in a civil action, a question of law;^ and as neither the statute of 32 George the Third, enabling the jury to give a general verdict in an action for libel, nor the similar provision in the Revised Statutes of New York, apply to civil actions,^ the judge may charge the jury whether or not, 1 Fray v. Fray, 17 C. B. N. S. 603 ; Mawe v. Pigott, 4 Ir. Com. Law Rep. 54; and by the court in Teacy v. M'Kenna (4 Td. 374), in overruling a demurrer to the declaration, " It is enough that the court are not prepared to decide that this docu- ment is not capable of a construction in any reasonable sense that would make it a libel." In England, since the common-law procedure act of 1852 (15 & 16 Vict, eh. 76), if the words are capable of any defamatory meaning, the case must be left to the jury. (Watkins v. Hall, Law Rep. 3 Q- B. 396 ; Mulligan v. Cole, Law Rep. 10 Q. B. 550.) By statute in Mississippi and Virginia, no demurrer to prevent jury from passing on the intent of the publication. (See ante, p. 294, note 5.) It is proper for the court to refuse to instruct the jury that the article is not libel- ous. That instruction would be proper only in case the language was incapable of a construction injurious to plaintiff. (Sanderson v. Caldwell, 45 N. Y. 401.) •^ Van Vechten v. Hopkins, 5 Johns. 211 ; Green v. Telfair, 20 Barb. Ii ; Godson V. Home, i Brod. & Bing. 7 ; Kerr v. Force, 3 Cranch C. C. 8. 3 Barrows v. Bell, 7 Gray (Mass.) 301. * Snyder v. Andrews, 6 Barb. 43. 6 Hunt V. Bennett, 19 N. Y. 173: Levi v. Milne, 4 Bing. 195 : Snyder v. An- drews, 6 Barb. 55 ; Dolloway v. Turrell, 26 Wend. 399; Reeves v. Templar, 2 Jur. 137. 530 PROCEEDINGS IN AN ACTION. [cH. XI, as a question of law, a puhlication is libelous on its face,' and it is the duty of the jury to follow the instructions of the judge.'' It is the practice for the judge first to give a legal definition of libel, and then to leave it to the jury to say whether the facts necessary to constitute that offense have been proved to their satisfaction.' The judge may state under what circumstances language in itself actionable may be spoken with impunity, and by way of illustration put a case differing in some respects from that before the court."* He is bound, upon a proper motion, to rule whether or not the declaration sets forth a cause of action.^ But in charging the jury, the judge is not bound to give his opinion as to the nature of the publication as a matter of law.^ And where the judge charged, " I find a difficulty in saying whether it (the publication) is a libel or not. Gentlemen, can you assist me?" a motion for a new trial on the ground of mis- direction was denied.^ But it is no misdirection that the ' Darby v. Ouseley, i Hurl. & N. I ; Wagaman v. Byers, 17 ]\Id. 183; Hunt v. Bennett, 19 N. Y. 173. - Hakewell v. Ingram, 2 Com. Law Rep. 1397 ; The State v. Jeandell, 5 Har- ring. [Del.] 475 ; and see Duffy v. The People, 26 N. Y. 588 ; Rex v. Burdett, 4 B. & Aid. 131 ; 2 Bennett & Hurd Lead. Cr. Gas. 388; The State v. Groteau, 23 Vt. 14 ; U. S. V. Morris, I Gurtis, 53; Baylis v. Lawrence, II Adol. & El. 925 ; Rex v. Dean of St. Asaph, 21 How. St. Tr. 847; 3 T. R. 428, note ; Sixth Rep. of Grim. Law Gomm'rs, A. D. 1841 ; Forsyth's Hist, of Trial by Jury, 268; 2 Gamp. Gh. Justices, 478 ; 3 Id. 56 ; Rex v. Miller, 20 How. St. Tr. 892 ; Rex v. Woodfall, 5 Burr. 2661 ; Shattuck V. Allen, 4 Gray, 541 ; Commonwealth v. Anthes, 5 Gray, 1S5 ; Gommon- wealth V. Porter, 10 Melc. 263; Goodrich v. Davis, 11 Melc. 473; Commonwealth V. Abbott, 13 Mete. 120 ; Pearce v. The State, 13 N. Hamp. 536 ; The People v. Crosswell, 3 Johns. Gas. 337. ' Parmiter v. Goupland, 6 M. & W. 105 ; Gox v. Lee, Law Rep. 4 Ex. 2S8 ; and see Stannus v. Finley, 8 Ir. Rep. Com. Law, 264 ; Shepheard v. Whitaker, Law Rep. 10 G. P. 502. ■* Taylor 7'. Robinson, 29 Maine, 323. = Shattuck V. Allen, 4 Gray (Mass.) 540 ; Matthews v. Beach, 5 Sandf. 256. " Parmiter v. Goupland, 6 M. & W. 105 ; Snyder v. Andrews, 6 Barb. 43. But in Pennsylvania the rule is otherwise ; there the court is bound to instruct the jury whether the publication is or is not libelous. (Pittockz/. O'Neill, 63 Penn. 253.) ' Baylis v. Lawrence, 3 Perr. & D. 526. § 287.] rROVINCE OF COURT AND JURY. 53 ^ iud-e, in addition to leaving the proper questions to the ury, stated his own opinion as to the libelous nature of the publication/ Although the judge is to leave it to the jury whether, under the circumstances, the publica- tion is a libel, on the general issue guilty or not guilty, yet if they find a verdict for the defendant on that issue, in a case in which no question is made as to the fact of publication, nor as to its application to the plaintiff, the court will set aside the verdict.^ And where the action was for calling the plaintiff a thief, and the defense was that the defendant so explained the words that the charge did not amount to an imputation of felony, the court beino- of opinion that the defense failed, charged the jury that the plaintiff was entitled to a verdict, and that the only question for them to determine was the amount of damages. The defendant excepted to this charge, and on appeal the charge was held to be proper.3 S 287. Where the circumstances of the publication are controverted or uncertain, a case is presented in which the court is to instruct the jury what condition of circumstances would render the publication privileged, and then leave it to the jury to determine the character of the publication, and give a verdict accordingly. For the jury cannot decide whether a libel was published on a justifiable occasion, without being told by the court what facts would constitute such an occasion.^ The un- certainty as to the facts may consist either in the hap- pening or not happening of certain events, or in the 1 Darby v. Ouseley, i Hurl. & N. I ; Snyder v. Andrews, 6 Barb. 55 ; and see Empson v. Fairford, W. W. & D. 10 ; i Jurist, 20. 2 Hakewell v. Ingram, 2 Com. Law Rep. 1397 ; and see Levi v. Milne, 4 Bing- 195; Longz..Eakle,4Md.454; Usher z;. Severance, 20 Maine, 9 ; Goodrich z/. Davis, II Mete. 474. 3 Van Akin v. Caler, 48 Barb. 58. * Duncan v. Brown, 15 B. Mon. 1S6. 532 PROCEEDINGS IN AN ACTION. [cH. XI. question whether or not the language exceeded the priv- ileged limits. § 288. The facts being uncontroverted, the court is to determine whether or not the publication is privi- leged.' If the court decides that the publication is absolutely privileged, that of course determines the ac- tion ; if the court decides the publication is conditionally privileged, then it is a matter of law for the court to determine w'hether there is any intrinsic or extriitsic evi- dence of malice. If the court decides this question in the negative, it directs a nonsuit or a verdict for the defendant, without reference to the jury.^ But if the court decides there is any evidence, either in the lan- guage of the publication itself (intrinsic evidence), or in the circumstances of its publication, from which a want of good faith or a bad intent (malice) on the part of the publisher may be inferred, it then becomes the duty of the court to submit to the jur}% with appropriate instruc- tions, and as a question of fact for their determination, whether in making the publication the publisher acted in good faith or otherwise ; ^ for the question of malice in such a case is always a question of fact to be determined by the jury.* Thus, where defendant had charged plaint- ' Darby v. Ouseley, I Hurl. & N. i ; Wenman v. Ash, 13 C. B. 836. ' Cooke V. Wildes, 5 El. & Bl. 328 ; Somerville v. Hawkins, 10 C. B. 583 ; Taylor V. Hawkins, 16 Q. B. 308 ; Harris v. Thompson, 13 C. B. 333 ; Wenman v. Ash, Id. 836; Mulligan v. Cole, Law Rep. 10 Q. B. 550; Caulfield v. Whitworth, 18 Law- Times, N. S. 527 ; Fry v. Bennett, 5 Sandf. 54 ; Jarvis v. Hathaway, 3 Johns. 180. ^ Lancey v. Brjant, 30 Maine (17 Shep.) 466 ; Fowls v. Smith, 5 B. & Aid. 850 ; Abrams v. Smith, 8 Blackf. 95 ; Mitchell v. Kerr, Rowe's Rep. 537 ; Cosgrove v. The Trade Auxilliary Soc. 8 Jr. Rep. Com. Law, 349. ^ White V. Nicholls, 3 How. U. S. Rep. 266 ; Blackburn v. Blackburn, 4 Bing. 395 ; Robinson v. May, 2 J. P. Smith, 3 ; Bodwell v. Osgood, 3 Pick. 379; Toogood V. Spyring, i Cr. M. & R. 181 ; Bromage v. Prosser, 6 D. & R. 296; Haight v. Cor- nell, 15 Conn. 74; Clapp v. Devlin, 35 Superior Ct. (3 Jones & S.) 170 ; Zuckerman V. Sonnenschein, 62 111. 115; Gardner v. Slade, 13 Ad. & Ell. N. S. 796; Pattison V. Jones, 8 B. & C. 57S ; see §§ 388, 399, post. § 288.] PROVINCE OF COURT AND JURY. 533 iff with stealing, and had her searched for a brooch miss- ing, but afterwards found in defendant's possession, held to be a question for the jury whether the charge was made bona fide, and that the circumstances and occasion of making it should be left to their consideration ; ' and to entitle a plaintiff ''to have the question of malice sub- mitted to the jury, it is not necessary that the evidence should be such as necessarily leads to the conclusion that malice existed, or that it should be inconsistent with the non-existence of malice ; but it is necessary that the evi- dence should raise a probability of malice, and be more consistent with its existence than with its non-existence ; " ^ and where the only evidence of malice was claimed to be on the face of the publication, held that it ought to have been left to the jury to determine whether there was any malice.3 But where the libel purported to be the report of a proceeding in the insolvent court, and imputed to the insolvent's landlord (the plaintiff) that he colluded with the insolvent in putting in a fictitious distress ; held that the judge ought not to have left it as a question to the jury whether the defendant intended to injure the plaintiff, but that if he thought the tendency of the publica- tion injurious to the plaintiff, he ought to have told them it was actionable, and the plaintiff entitled to a verdict.'^ ' Padmore v. Lawrence, 3 Perr. & D. 209. Court to leave bona fides to jury, and then to determine whether or not the publication is privileged. (Stace e/. Griffith, Law Rep. 2 Pri. C. C. 420; 20 Law Times, N. S. 197; Little v. Clements, i Ir. C. L. 194.) Whether or not the occasion gives the privilege is a question of law. Whether or not the defendant has fairly conducted himself in the execution of the privilege, is a question of fact for the jury. (Dickson v. Earl Wilton, i Fost. & F. 419 ; and see George v. Goddard, 2 Fost. & F. 689.) '^ Somerville v. Hawkins, 10 C. B. 583 ; and see Taylor v. Hawkins, 16 Q. B. 308 ; Harris v. Thompson, 13 C. B. 333 ; Wenman v. Ash, 13 C. B. 836 ; Henwood v. Harrison, Law Rep. 7 C. P. 606. ' Gilpin V. Fowler, 9 Ex. 615; 18 Jur. 292. Held erroneous to charge jury that plaintiff had no cause of action unless words were understood by the hearers in a malicious sense. (Jarningham v. Fleming, 43 Miss. 710 ; but see Nelson v. Bor- chenius, 52 III. 236.) ^ Haire v. Wilson, 9 B. & C. 643. Plaintiff was arrested on a charge of robbery, 534 PROCEEDINGS IN AN ACTION. [cil. XI. § 289. The amount of damages is to be determined by the jury, but the court should instruct them as to the rules by which they should be governed in fixing the amount.' A general instruction to find such damages as under all the circumstances they thought right, was held to be improper.^ It w^as held no ground for exception that the judge advised the jury to give only nominal damages.3 A charge that compensatory damages are to be given w^here the publication is without malice, and that compensatory damages are such as will repay the costs and trouble of the suit and of disproving the defendant's allegations, was held right/ although it has been held erroneous to charge the jury to take into con- and twice arraigned before a magistrate. Defendant published in a newspaper reports of the proceedings ■; one report was headed " Daring robbery," and the other "Charge against a barmaid." It appeared in evidence that the report in manuscript was headed " 6^«y<77/«a't'^ charge against a barmaid," but the word unfounded was omitted in the report as published. On the trial a nonsuit was ordered, but a new trial was granted. (Street v. Licensed Victuallers' Soc. 22 Weekly Rep. 553.) ' True V. Plumley, 36 Maine, 466. Held that in directing the jury as to dam- ages, it was not necessary for the judge to caution the jury as to the amount of injury sustained, by telling them to take into consideration the fact that one publication only had been proved, and that a mere sale to the plaintiff's agent of a copy of the paper containing the libel. (Brunswick v. Harmer, 14 Q. B. l8g.) If there was only one witness to the speaking of words charging theft, and he testifies that his opinion of the person slandered was not thereby affected, and that he still believed him to be honest, yet, if the words were spoken maliciously, it is erroneous to limit the jury to nominal damages. (Markham v. Russell, 12 Allen [Mass.] 573.) - Duncan v. Brown, 15 B. Mon. 186. ^ Matthews v. Beach, 5 Sandf. 256. Where the judge recommended the jury to give nominal damages, but the jury gave ;^5 damages, the court refused to set the verdict aside. (Cliilvers v. Greaves, 5 M. & G. 578.) The right of the court to direct a verdict for nominal damages doubted. (Strong v. Kean, 13 Irish Law Rep. 93 ; and see Sanderson v. Caldwell, 45 N. Y. 398.) Where the publication com- plained against was the publication, in the defendant's newspaper, of a printed re- port of a committee of investigation distributed to the shareholders in a company, the judge charged the jury that although the publication by the defendant was un- authorized, yet, as the publication to the shareholders was authorized, they might give nominal damages. (Davis v. Cutbush, i Fost. & F. 487.) In an action against a newspaper for publishing a libelous item of news, the proprietors not having acted with express malice, and not having shown negligence in their choice of reporters, held that exemplar}' damages should not have been allowed. (Detroit Daily Post Co. V. McArthur, 16 Mich. 447.) * Armstrong v. Pierson, 8 Clarke [Iowa], 29. § 289.] DAMAGES. 535 sideration the expense to which the plaintiff has been put by being compelled to come into comt to vmdicate his character.^ It has been usual in the English courts, to tell the jury that they are not to consider the effect of the verdict upon the costs.^ In New York, it seems always to have been the rule to inform the jury of the effect of the verdict upon the costs.3 And at least some of the judges in the courts of England are disposed to follow the rule prevailing in the New York courts. Where, on a motion for a new trial, on the ground that the jury had given a verdict for a small amount of damages, under the erroneous impression that it was an amount sufiicient to carry costs, the rule was refused ; but by Pollock, Ch. B., " There is no reason why the jury should not be m- formed, if thev ask it (what amount of verdict will carry costs), as it is^a part of the law, but if they do not ask it, and they have given their verdict, it cannot be disturbed merely because they did not know it."^ In a case tried 1 Hicks V. Foster, 13 Barb. 663. In Wakelin v. Morris, 2 Fost. & F. 27 ; the defendant's counsel proposed to put a question to plaintiffs attorney, as to what would be the probable cost to the defendant if the verdict was for nominal damages only, and the question was admitted. '^ The effect of the verdict upon the costs is to be laid entirely out of considera- tion, and with which the jury have nothing to do. (Mears v. Gnfhn 2 Sc N. R 15.) And so recently as 1868, sittmgs, after Mich. Term, in an action of hbel (Bradlaugh V. Brooks), the jury, after retiring to consider their verdict, returned into court and inquired of the judge (Blackburn, J.), what amount of damages would carry costs ; he declined to inform them, saying that, according to law, the costs follow the ver- dict, and a verdict ought not to be given which depended upon the lavy as to costs And in Wilson v. Reed (2 Fost. & F. I49.S the court refused to inform the jury what amount of damages would carry costs. In California, the same rule seems to prevad. (See Shay v. Tuolumne Water Co. 6 Gal. 286.) 3 EUiott V. Brown, 2 Wend. 500 ; Nolton v. Moses, 3 Barb. 31 ; Waffle v. DiUen- back, 38 N. Y. 53. 4 Kilmore v. Abdoolah, 27 Law Jour. Ex. 307. But on the same occasion Bram- well B said • "The jury have no right to give a verdict with reference to anything else than the injury sustained by the plaintiff." Where, on the execution of a writ of inquiry in an action for slander, the jury were incorrectly informed by the under- sheriff as to the amount of damages which would carry costs, and they found a ver- dict for less than forty shillings, it was held no ground for a new writ of inqimy, or for increasing the amount of damages. (Grater v. Collard, 6 Dowl. 503.) ^ he jury 536 PROCEEDINGS IN AN ACTION. [cH. XI, before Erie, Ch. J., he charged the jury : " If you be- lieve that the plaintiff really was required to brin. Peckham, i Chip. 146 ; but see posl, note to § 343.) ' Witcher v. Richmond, 8 Humph. 473 ; Attebury v. Powell, 29 Miss. (S Jones) 429 ; Sanderson v. Hubbard, 14 Vt. 462. ' Palmer v. Hunter, 8 Mo. 512 ; Morgan v. Livingston, 2 Rich. 573; Niven v. Munn, 13 Johns. 48 ; but see Wood v. Scott, 13 Vt. 42. 568 PLEADING. [CH. XIII. averment may, however, be supplied by any equivalent allegation, and may be altogether dispensed with where it appears otherwise with sufficient certainty on the face of the complaint that the publication was in fact con- cerning the plaintiff/ And although, in actions for slander and libel, inducement may be necessary to ex- plain the matter alleged to be libelous, it is enough to state in the declaration that the publication was " of and concerning " the plaintiff, without also stating that it was " of and concerning" such matter,^ or of and concerning ' It is sufficient to aver substantially that the words were spoken of plaintiff ; an express averment of the fact is not necessary. (Brown v. Lamberton, 2 Binn. 34; Brashen v. Shepherd, Ky. Dec. 294 ; Nestle v. Van Slyke, 2 Hill, 282 ; but see Titus v. Follett, 2 Hill, 318 ; Tyler v. Tillotson, 2 Hill, 508; Cave v. Shelor, 2 Munf. 193 ; Harper v. Delp, 3 Ind. 225; Rex v. Marsden, 4 M. & S. 164; Baldwin v. Hildreth, 14 Gray [Mass.] 221.) On demurrer, where the words did not name the plaintiff, the omission of a colloquium of and concerning the plaintiff was held fatal, and not aided by the innuendoes. (Milligan v. Thorn, 6 Wend. 412 ; and see Church v. Bridgman, ^ Miss. 190.) Nor by the verdict, the language being in the third person. (Sayre V. Jewett, 12 Wend. 135.) If there be a colloquium sufficient to point the applica- tion of the words to the plaintiff, if spoken maliciously, he must have judgment. (Lindsey v. Smith, 7 Johns. 359.) Where actionable words are spoken to a plaintiff, it is sufficient to allege a discourse with him, without an averment that the words were concerning the plaintiff. (Osborn v. Jorshee, 22 Mich. 209.) But where the words are in the third person, as, " He is a thief," there, although a discourse of the plaintiff is alleged, it must also be alleged that the words were concerning the plaint- iff. And it is not sufficient in such a case to connect the words with the plaintiff by an innuendo. (l Stark. Sland. 384.) But where a discourse of the plaintiff is laid, and there is an innuendo of the plaintiff, it seems that the want of a direct averment that the words were concerning the plaintiff must be pointed out by special demur- rer [motion to make certain] ; but if no discourse concerning the plaintiff is alleged, then the want of an allegation that the words concerned him would be a defect in substance. {Id. ; Skutt v. Hawkins, i Rolle R. 244.) If a plaintiff has omitted, in his declaration, to state that the libel was spoken of himself, he may supply the same by parol evidence. (Newbraugh v. Curry, Wright, 511.) Where A. says of B. & C., "you have committed such an offense," though B. & C. may have separate actions, the words must be alleged to have been spoken of both. (Cro. Car. 512.) Where the declaration states a colloquium with G., of and concerning the children of G., and of and concerning C, one of the children of G., and the plaintiff in the suit in particular, and that the defendant said, "Your children are thieves, and I can prove it," the colloquium conclusively points the words, and designates the plaintiff as one of the children intended. And a colloquium is sufficient to give application to words still more indefinite. (Gidney v. Blake, 11 Johns. 54 ; but see what is said I Stark. Sland. 385 ; see also ante, § 129.) - O'Brien v. Clement, 4 D. & L. 563 ; Gutsole v. Mathers, i M. & W. 495 ; Shimer -v. Bronnenburg, 18 Ind. 363. § 324-] '^^^^ COMPLAINT. 569 the plaintiff in the occupation alleged in the induce- ment.' Where the declaration alleged that the defend- ant published a libel of and concerning the plaintiff, containing, &c., the false libelous matters following (with- out saying of and concerning the plaintiff) ; held, in error, that for want of an averment that the particular matter was of and concerning the plaintiff, and there being no innuendo that such matter related to him, the declaration was bad, and a venire de novo was awarded.^ A declaration which alleged that the plaintiffs were traders under the firm of T. & Co., and averring that, in a discourse of and concerning them, their circumstances and business, the defendant said, " T. & Co. are down," &c., without repeating that this was said of and concern- ing the plaintiffs, was held bad on special demurrer, al- thouofh pfood in substance.^ § 324. A publication by the defendant must be alleged. The publication need not be set forth in any technical form of words. '^ But it must be alleged posi- tively, and not by way of recital ; ^ and, therefore, a declaration which commenced, ''For that zuhereas'' \}cvq defendant intending, &c., spoke, &c., was held bad on special demurrer.^ In slander for English words, it ' Wakley v. Healey, 18 Law Jour. Rep. 241, C. P. ; contra, see Barnes v. Trundy, 31 Maine (i Red.) 321. 2 Clement v. Fisher, 7 B. & Cr. 459 ; i M. & Ry. 281. * Titus V. Follett, 2 Hill, 318 ; and see Taylor v. State, 4 Ga. 14. Where the meaning of the language is uncertain, or where it is uncertain to whom the language refers, the complaint should contain averments showing the meaning of the language and to whom it refers. (Carey v. Allen, 39 Wis. 481.) * Baldwin v. Elphinstone, 2 W. Black. 1037 ; Wallis v. Morgan, 50 Ind. 318 ; Roberts v. Lovell, 38 Wis. 211 ; ante, note 2, p. 151. It was held sufficient to allege that the defendant was the proprietor of the newspaper in which the alleged libel was published. (Hunt v. Bennett, 19 N. Y. 173.) ' Donage v. Rankin, 4 Munf. 261. Brown v. Thurlow, 4 D. & L. 301 ; 16 M. & W. 36 ; Coffin v. Coffin, 2 Mass. 358 ; Houghton v. Davenport, 23 Pick. 235. 570 PLEADING. [CH. XIII. should be alleged that the defendant spoke the words in the presence and hearing of divers persons,' or of certain persons, naming them,' or of certain persons named and divers others, not naming the others.^ Published, ex vi termini, imports a speaking in the presence and hearing of a third party;* and, therefore, to allege that the de- fendant published the words is sufficient, without aver- ring specially the presence of others.^ And an allegation that the words were spoken would be sufficient, without stating the presence of any third person, if accompanied by any averment which necessarily implies a publication to a third person — as that the defendants /^//w et publice promulgant de qtierente.^ In the case of English words, it is not necessary to allege that the persons present either heard or understood w^hat was said ; for until the contrary is made to appear, it will be intended that those present both heard and understood the words ; but in the case of a publication of foreign words, it must be alleged that the persons present understood them.^ ' To allege a speaking merely is not sufficient. (Style, 70 ; I Stark. Sland. 360.) In Indiana, by statute, it is sufficient merely to allege the speaking. (Guard v. Risk, II Ind. 156; Hutts V. Hutts, 51 Ind. 583.) And so in Missouri (Atwinger v. Fell- ner, 46 Mo. 276 ; Steiber v. Wensel, 19 Mo. 513); and held that an averment that the defendant "did, in certain conversations, utter, publish, and declare," sufficiently implies that the words were spoken in the presence of other persons. (Hurd v. Moore, 2 Oregon, 85.) - Burbank v. Horn, 39 Maine (4 Heath), 233; ante, note i, p. 152. •■' Bradshaw v. Perdue, 12 Ga. 510 ; Ware v. Cartledge, 24 Ala. 622. ^ Duel V. Agan, i Code Rep. 134 ; ante, note i, p. 152. * Barton v. Barton, 3 Iowa, 316. * Taylor v. How, Cro. Eliz. 861. Prior to the statute 2 Geo. II, ch. 14, plead- ings in the courts of England were in Latin, which will explain why the quotations from the pleadings in the early decisions are in Latin. ■" Wormouth v. Cramer, 3 Wend. 394; i Stark. Slan. 360; Cro. Eliz. 396, 480, 865 ; Cro. Jac. 39 ; Cro. Car. igg ; Noy, 57 ; Golds. 1 19 ; Zeig v. Ort, 3 Chandler (Wis.) 26 ; and see ante, notes, p. 146. After verdict, a declaration which alleges words spoken in a foreign language, without alleging that the words were understood by the hearers, was sustained (Kiene v. Ruff, i Clarke [Iowa], 4S2) ; and in Pennsyl- vania, held not necessary to allege that foreign words were understood. (Palmer v. Harris, 60 Penn. 156.) And in Maynard v. Firemen's Ins. Co. 34 Cal. 48, the words § 325-] THE COMPLAINT. 571 § 325. Where the publication was made in writing, published is the proper and technical term by which to allege the publication, and this without reference to the precise degree in which the defendant was instrumental to the publication.' But any equivalent allegation will suffice. Where it was alleged that the defendant printed and caused to be printed in the St. James' Chronicle, that was held sufficient ;^ and so was the allegation that the defendant ''did publish and cause and procure to be published," a certain libel addressed to the plaintiff,^ but where the allegation was that the defendant scripsitjecit, et publicavit, sen scribi fecit et piiblicari causavit, it was held to be insufficient, and judgment was arrested on account of the uncertainty of the disjunctive charge. -» To allege that the defendant is proprietor of a certain newspaper named, and that the libel was published in such paper, was held a sufficient averment of a publica- tion by the defendant.^ But to allege that defendant sent a letter to plaintiff which was received and read by him, does not show a sufficient publication.^ If a defamatory writing is shown to have been put in a situation in which It might have been read, it is unnecessary to allege that it was in fact seen or read.^ complained of were not libelous /^r j^, and the complaint only averred a libelous in- tent and meaning on the part of defendant, without averring that such words were so understood by those to whom they were published. A demurrer on the ground that the words did not constitute a libel, was sustained. (See Gary v Allen lo Wise. 481.) ' ^^ ' Lamb's Case, 9 Coke, 59 ; i Stark. Sland. 359. = Baldwin v. Elphinstone, 2 W. Black. 1037. ' Waisted V. Holman, 2 Hall, 172. But to allege that defendant composed, wrote and delivered a certain libel addressed to the plaintiff, was held insufficient. ^ Rex V. Brereton, 8 Mod. 328. ' Hunt V. Bennett, 4 E. D. Smith, 647 ; affirmed 19 N. Y. 193. ° Lyle V. Clason, r Caines, 581. ' Giles V. The State, 6 Ga. 276; ante, note 3, p. 150. 572 PLEADING. [ciI. XIII. § 326. The place of publication may be alleged with a videlicet.' It is not material, and need not be proved as laid.'' § 327. The time of speaking the words is not ma- terial.3 in one case, it was held that the words might be laid with a continuando,'' but this w^as denied, on the ground that words spoken at one time constitute one cause of action, and words spoken at another time con- stitute another cause of action. ^ The continuando, how- ever, was held to be surplusage, and not ground for special demurrer.^ An allegation, " and further, that de- fendant, on divers days and times, between that day and the commencement of this action, spoke the same words," was struck out as redundant.^ § 328. It should appear on the face of the complaint, by some appropriate averment, that the publication was made without legal excuse. Ex malitia, in its legal sense, imports a publication that is false, and made with- out legal excuse ; ^ an averment that the publication was made with malice or maliciously has ever been and still is the customary averment ; but any form of words from which malice (absence of excuse) can be inferred, as that the publication was made falsely or wrongfully, will suffice.* ' Burbank v. Horn, 39 Maine (4 Heath), 233. '^ Jeffries v. Duncombe, 11 East, 226; ante, § no. •* Potter V. Thompson, 22 Barb. 87; Hosley v. Brooks, 20 111. 115 ; but see ante, § log. It is not necessary to prove the publication on the clay alleged. (Norris v. Elliott, 39 Cal. 72.) ^ Burbank v. Horn, 39 Maine (4 Heath), 233. '' Swinney v. Nave, 22 Ind. 178 ; ante, § 113. * Cummins v. Butler, 3 Blackf. 190. ■> Gray v. Nellis, 6 How. Pr. R. 290. ''Johnson v. Sutton, i T. R. 439; Cro. Car. 271; Rowe v. Roach, I M. & S. 304 ; ante, §§ 71, 73. ' Moor, 459 ; Owen, 451 ; Noy, 35 ; Dillard v. Collins, 25 Gratt. (Va.) 343 ; ante, note I, p. 138. § 329.] THE COMPLAINT. 573 Neither the term maUce/ nor falsely, nor wrongfully, is essential,' at least after verdict. ^ A declaration which charged the publication to be "malicious, inju- rious, and unlawful," was held sufficient/ Where it ap- peared on the face of the declaration that the defamatory matter was published in an affidavit in a proceeding in an action, and was pertinent to the matter in hand, held that the declaration was demurrable, because, notwith- standing the allegation that the publication was false and malicious, it appeared on the face of the declaration that the publication was a privileged one.^ § 329. The complaint should set out, and purport to set out, the very words published.^ The proper term by 1 Opdyke v. Weed, iS Abb. Pr. R. 223 ; Viele v. Gray, 10 L/. 6; a/ite, note i, p. 13S. * Style, 392. An allegation that the publication was a libel, held equivalent to an allegation that it was false and malicious. Hunt v. Bennett, 19 N. Y. 176 ; §§ 73. 74. ««^^- 3 2 Saund. 242 ; White v. Nichols, 3 How. U. S. Rep. 266, 284 ; Taylor v. Knee- land, I Doug. 67. * Rowe V. Roach, i Mau. & Sel. 304. 5 Garr v. Selden, 4 N. Y. 91. « Finnerty v. Barker, 7 N. Y. Legal Observer, 317; Sullivan v. White, 6 Irish Law Rep. 40; Whitaker v. Freeman, i Dev. 271 ; Lee v. Kane, 6 Gray (Mass.) 495; Taylor v. Moran, 4 Mete. (Ky.) 127 ; Commonwealth v. Wright, i Cush. 46. In Gutsole v. Mathers, i M. & W. 495, the precise words were not set out, but merely the effect of them, the declaration alleging that the defendant wrongfully, &c., represented in the presence and hearing of divers persons (naming them) that said tulips were stolen property. On motion in arrest of judgment, the declaration was held bad for not setting out the words verbatim.. In McDonald v. Dun, 12 Low. Can. Rep. 345, the declaration alleged that defendants, a mercantile agency, had falsely and maliciously written in a book kept in their office, the words ''to the effect" that plaintiff "was not reliable, or that plaintiff was insolvent, or words to that effect, but as defendants have refused to let plaintiff see the book, he is unable to state the exact words therein written." On exceptions, equivalent to a demurrer, the action was dismissed. And where the declaration alleged slander of plaintiff's wife by imputing adultery and prostitution, without setting out the words and con- cluding with special damage, held bad. (Breen v. McDonald, 22 Up. Can. C. P. 298 ; see note 5, p. 301, ante.) In Pennsylvania, it has been held not necessary to set out the identical words complained against, and that to set forth their purport is sufficient. (Lukehart z/. Byerly, 53 Penn. 41S.) And so in Massachusetts. (Rob- bins V. Fletcher, loi Mass. 115 ; Brettun v. Anthony, 103 Mass. 37 ; see ante, note 37 574 PLEADING. [CH. XIII. which to indicate that the very words are set forth is tenor.^ "Tenor and effect" is now held to be sufficient, but there is a decision to the contrary.^ It is not suffi- cient to allege that words were published to the effect following,^ or in substance as follows/ or purporting,^ or that the words were in substance as follows, or according 5, p. 301.) A new trial was granted because the words published were not set forth in the complaint literally. (Walsh v. The State, 2 McCord, 248.) Where the sub- stance only of the defamatory matter was charged in the declaration for libel, the court, on the trial, allowed the plaintiff to amend by setting out verbatim the letter containing the matter complained against. (Saunders v. Bates, i Hurl. & N. 402.) Certain States provide by statute what words shall be actionable. (>; 153.) It is held that acts declaring what words are actionable are public laws, of which courts are bound to take notice, and the complaint or declaration need not recite or refer to the statute (Sanford v. Gaddis, 13 111. 329 ; Elam v. Badger, 23 111. 49S), except by allegmg that the words were published against the form of the statute in such case provided (Terry v. Bright, 4 Md. 430); but the absence of this allegation will be cured by verdict. (Wilcox v. Webb, i Blackf. 258.) As to declaring upon the statutes of Virginia and Georgia, see Moseley v. Moss, 6 Gratt. 534 ; Holcombe v. Roberts, 19 Ga. 58S; Hanks v. Palton, 18 Ga. 52. ^ Commonwealth v. Wright, i Gush. 46; Wright v. Clements, 3 B. & Aid. 503. To allege "a certain receipt for money, as follows, that is to say," was held equiva- lent to an allegation "according to the tenor following, or in the words and figures following, that is to say." (Rex v. Powell, i Leach C. C. 77, 4th ed. ; 2 East P. C. 976; 2 Wm. Black. R. 787) In a declaration for slander of plaintiff in his trade, a count alleging that the defendant, in a certain discourse in the presence and hearing of divers subjects, falsely and maliciously charged the plaintiff of being in insolvent circumstances, and stating special damage, but without setting out the words, was held ill. (Cook v. Cox, 3 M. & S. no.) ^ Newton v. Stubbs, 3 Mod. 71 ; 2 Show. 435. ^ Ford V. Bennett, i Ld. Raym. 415 ; Rex v. Bear, 2 Salk. 417. •* Wright V. Clements, 3 B. & Aid. 503. Where a declaration for a libel sets out a publication which refers to a previous publication, but, unless by reference to the language of the previous publication, contains no libel, such previous publication must be considered as incorporated in the publication complained of, and must ap- pear in the declaration to be set out verbatim, and not merely in substance. There- fore judgment was arrested as to the second count of a declaration, which, after reciting that defendant published a statement " in substance as follows," setting out the publication charged in the first count, charged that defendant after\vards pub- lished of and concerning plaintiff, and of and concerning the first publication, a statement that the copper tank was fitted up in a schooner belonging to the plaintiff. (Solomon v. Lawson, 8 Q. B. 823.) * Wood V. Brown, 6 Taunt. 169; and see Cook v. Cox, i M. & S. no. Alleging the speaking of certain words, or words of the same import, was held good after verdict. (Bell :■. Bugg, 4 Munf. 260.) § T,2,0.] THE COMPLAINT. 575 to the purport and effect following, or in manner and form following,' or that the words were of a certain tenor, import and effect,^ Nor are quotation marks sufficient to indicate that the exact words are set forth. ^ Where the defamation consists in the adoption of words spoken by another, the declaration must set forth the words with the same particularity as though the action were against that other."* § 330. Where the words were published in a foreign language, the foreign words must be set forth, ^ together with a translation into English. To set forth the foreign words alone, or the translation alone, would not be suffi- cient.^ The omission to set forth a translation may be ' Bagley v. Johnson, 4 Rich. 22 ; Watson v. Music, 2 Miss. 29 ; Zeig v. Ort, 3 Chand. (Wis.) 26 ; Bassett v. Spofford, 11 N. Hamp. 127; Churchill v. Kimball, 3 Ham. 409 ; Rex t>. May, i Doug. 193. A count in slander stating that defendant charged plaintiff with the crime of forgery, held bad (Yundt v. Yundt, 12 S. & R. 427); and so of perjury (Ward v. Clark, 2 Johns. 10); and where a count alleged that defendant charged plaintiff with the crime of theft, without setting out the exact words, it was held bad after verdict. (Parsons v. Bellows, 6 N. Hamp. 289.) In Massachusetts, even before the statute of 1852, it was held sufficient to allege that defendant accused plaintiff of a certain crime, as stealing, without setting out the words spoken. (Pond v. Hartwell, 17 Pick. 269; Allen v. Perkins, /cf. 369 ; Gardner 7'. Dyer, 5 Gray, 22 ; Nye v. Otis, 8 Mass. 122 ; Whiting v. Smith, 13 Pick. 364 ; Gay V. Horner, 13 Pick. 535 ; and see Kennedy v. Lowry, i Binn. 393; Grubs v. Keyser, 2 McCord, 305.) But, in that State, the defendant is entitled to a bill of particulars setting forth the exact words. (See Payson v. Macomber, 3 Allen, 71.) A count in slander alleging that defendant wrongfully and without reasonable cause " imposed the crime of felony " upon the plaintiff was, after verdict, held good. (Davis V. Noakes, i Stark. 377 ; Hill v. Miles, 9 N. Hamp. 9.) In actions for mali- cious prosecution, it is sufficient to declare ^zeod crimen felonice imposidt, without stat- ing the words. (Pippet v. Heam, 5 B. & Aid. 634; Blizard v. Kelly, 2 B. & C. 283; Davis V. Noake, 6 M. & S. 33.) ^ Forsyth v. Edmiston, 5 Duer, 653. ^ Commonwealth v. Wright, i Cush. 46. •* Blessing v. Davis, 24 Wend. 100. * Zenobia v. Axtell, 6 T. R. 162. When the language is not actionable per se, but merely because of some local meaning which is attached to it, the declaration must affirmatively allege the import of the language at the time and place of use. (Miles V. Van Horn, 17 Ind. 245.) ^ Wormouth v. Cramer, 3 Wend. 394 ; Lettman v. Ritz, 3 Sandf. 734; Zeig v. Ort, 3 Chand. 26 ; Kerschbaugher v. Slusser, 12 Ind. 453; Hickley v. Grosjean, 6 Blackf. 351; Rehauser v. Schwerger, 3 Watts, 28. 576 PLEADING. [CU. Xlll. rectified by an amendment' On a general denial, the plaintiff must prove the correctness of the translation, but its correctness is admitted by a demurrer.^ To allege a publication of English words, and prove a publication of words in another tongue, is a variance,^ and cause for a nonsuit/ § 331. The object, or one of the objects, of obliging a plaintiff to set forth in his complaint the very words complained against, is, that the defendant may, if he de- sires it, by demurring, have the opinion of the court upon the actionable quality of the words.^ i^ 332. One exception to the rule now under con- sideration is said to be, when the words i)ublished are so obscene as to render it improper that they should appear upon the record, and in such case the statement of the words may be omitted altogether, and a description sub- stituted ; but the reason for not setting forth the exact words must appear by proper averments on the face of the complaint,^ § ^T,^. The omission to set forth in the declaration the very words published is a variance, and in the prac- tice at common law the omission was not cured by verdict, and might be taken advantage of by motion in arrest of judgment/ The degree of certainty with which ' Zenobia v. Axtell, 6 T. R. 162 ; Rehauser v. Schwerger, 3 Watts. 28; Jenkins V. Phillips, 9 C. & P. 766. An amendment was allowed by inserting the foreign words. (Debouxj/. Lehind, i Code Rep. N. S. 235 ; see Variance.) ' Hickley z: Grosjcan, 6 Blackf. 351. " Keenholts v. Becker, 3 Denio, 346 ; Kerschbaugher v. Slusser, 12 Ind. 453. * Zenobia r. Axtell, 6 T. R. 162; Zeig v. Ort, 3 Chand. 26. * Wood z'. Brown, 6 Taunt. 169. "Commonwealth zj. Tarbox, i Gush. 46; Commonwealth 7/. Holmes, 17 Mass. 336. Indecent words tending only to aggravate the damages need not be repeated in the declaration. (Stevens v. Handley, Wright [Ohio], 121.) ■' Gutsole v. Mathers, i M. & W. 495 ; Wright v. Clements, 3 B. & Aid. 503; and see Variance. § 334-] THE COMTLAINT. 577 the defamation must be set forth depends upon the sub- ject-matter. Where the defamation consists mainly in postures and movements, the use of language somewhat general is unavoidable ; and where a declaration alleged, that the defendant published of and concerning a certain court-martial, and of and concerning the plaintiff as a member thereof, a defamatory libel and carricature, con- sisting of a picture representing and pointing out the court-martial, and the plaintiff as a member thereof, by their position and certain grotesque resemblances, &c., it was held, after verdict, to be averred with sufficient cer- tainty that the plaintiff was specifically and individually libeled/ § 334. The rule now under consideration does not render it necessary to set forth the whole of the matter published ; it is sufficient to set forth the particular pas- sages complained of, provided they are divisible from, and their meaning is not affected by, the other and omitted passages.^ It is sufficient to set out the w^ords which are material, and additional words which do not diminish nor alter the sense of the words truly alleged may be omitted.^ But enough must be set forth to show the sense and connection in which the w^ords set forth were used ; otherwise there will be a variance, even if the ' Ellis V. Kimball, 16 Pick. 132. Judgment was arrested in an action for slander respecting a bribe, because the charge did not specify to whom the money was given. (Purdy v. Stacey, 5 Burr. 2698.) A declaration in slander for charging the plaintiff with larceny, held good after verdict, although it did not set forth the name of the owner of the property alleged to have been stolen by plaintiff. (Thompson V. Barkley, 27 Penn. St. R. 263.) It is not necessary to set forth the imputation of an offense with the same particularity as in an indictment. {Id. ; Niven v. Munn, 13 Johns. 48.) ^ Culver V. Van Anden, 4 Abb. Pr. Rep. 374; Rex v. Brereton, 8 Mod. 329; Sidman v. Mayo, I Rolle R. 429. A document referred to in an alleged libel need not be set out if it does not affect the meaning of the language complained against. (Walsh V. Henderson, 4 Ir. L. R. 34.) ^ Spencer v. Mc-Masters, 16 111. 405 ; Weir v. Hoss, 6 Ala. 881 ; Buckingham v. Murray, 2 Car. & P. 46. 578 PLKADING. [CH. Mil. precise words laid arc j)rovcd to iiave been spoken.' Where several passages are extracted from the same pub- lication, care should be taken to show that such is the case, as by prefacing the first extract, with the allegation, in a certain part of which said libel there was and is con- tained, &c., and by prefacing the subsequent extracts with the allegation, and in a certain other part of which said libel there was and is contained, time of the death of one W. T., in his name, alleged that the defendant published concerning the plaintiff, and concerning such money, the following libel: "There is strong reason for believing that a considerable sum of money was transferred from Mr. T.'s (meaning the said W. T.'s) name in the books of the Bank of England, by power of attorney obtained from him by undue influence, after he became mentally incompetent to perform any act requiring reason and understanding" (thereby meaning that the plaintiff had transferred, or caused to be trans- ferred, the said money from the said W. T.'s name in the said books of the said bank, by means of a power of at- torney obtained by him from the said W. T., by undue influence exercised by him over the said W. T., at a time when the said W. T. had become mentally incom- petent to give a power of attorney, and to perform any act requiring reason and understanding). Held, after verdict for plaintiff, on motion in arrest of judgment, that the libel was sufficiently shown to point to the plaintiff' Averments were introduced into the declaration of words spoken by the defendant imputing dishonesty to L., the name of L. being followed by the innuendo, " meaning the plaintiffs' agent and clerk," but there was nothing else in the declaration showing any connection between L. and the plaintiffs. Held, that in the absence of a direct averment connecting L. with the plaintiffs or their busi- ness, the words alleged to have been spoken concerning them were not actionable in favor of the plaintiffs.^ Where the alleged libel consisted of a passage in a newspaper warning certain persons to avoid the traps laid for them by desperate adventurers, innuendo the plaintiff amongst others, was, after verdict, held suffi- ' Turner v. Merrywether, 13 Jur. 683 ; 18 Law Tour. C. P. 155 ; 12 Law Times, 474- "^ Smith V. Hollister, 32 Vt. (3 Shaw), 695. §§ 344. 345-] TfiE COMPLAINT. 593 ciently to point out the plaintiff/ Where there was no colloquium that the defamatory matter was concerning the justices of Suffolk, and it did not appear on the face of the alleged libel that it applied to such justices, it was held that the defamatory matter could not be con- nected with or applied to such justices by means of an innuendo.^ § 344. If a complaint is sufficient without the innu- endo, the innuendo may be rejected as surplusage ; ^ the innuendo may always be rejected when it merely intro- duces matter not necessary to support the action,* or when it is incongruous,^ or too broad ; ^ an innuendo that the attorney general spoken of meant the attorney general for the county palatine of Chester was so re- jected.7 § 345- Special damages, or those damages which are not the necessary consequence of the language com- plained of (§§ 197-202), must be specially alleged in the complaint, or the plaintiff will not be allowed on the trial to go into evidence to prove such damages.^ Where ' Wakley v. Healey, 18 Law Jour. 241, C. P. ■^ Rex V. Alderton, Sayre, 2S0; and, to the like effect, Hawkes v. Hawkey, 3 East, 427 ; Savage v. Robery, Cowper, 680. 3 Commonwealth v. Snelling, 15 Pick. 335 ; Moseley v. Moss, 6 Gratton, 534; Cooper V. Greeley, i Denio, 360 ; Harvey v. French, i Cr. & M. I ; affirmed 2 Mo. & Sc. 591 ; Gage v. Shelton, 2 Rich. 242 ; Giles v. The State, 6 Ga. 276 ; see § 338, ante. * Thomas v. Crosswell, 7 Johns. 264 ; Crosswell v. Weed, 25 Wend. 621 ; Carter V. Andrews, 16 Pick, i ; Carroll v. White, 33 Barb. 621 ; Hudson v. Garner, 22 Miss. {l Jones), 423 ; Rodebaugh v. HoUingsworth, 6 Ind. 339. ^ Gardiner v. Williams, 2 Cr. M. & R. 78 ; 3 Oowl. Pr. Cas. 796. * Benaway v. Conyne, 3 Chand. (Wis.) 214 ; Barrett v. Long, 3 Ho. of Lords Cas. 395- ^ Roberts v. Camden, 9 East, 93 ; and see Day v. Robinson, 4 Nev. & M. 841 ; West V. Smith, 4 Dowl. 703. 8 Squier v. Gould, 14 Wend. 159 ; Strang v. Whitehead, 12 Id. 64 ; Roberts v. Roberts, 5 B. & S. 385 ; Kelly v. Huffington, 3 Cr. C. C. 81; Birch v. Benton, 26 Mo. (5 Jones), 155; Johnson v. Robertson, 8 Porter, 486 ; Barnes z*. Trundy, 31 594 PLEADING. [CH. XIII. the language is actionable per se, special damage need not be alleged ; ' but if the language is not actionable per se, special damage must be alleged. Allegations of special damage are not traversable. They are inserted in the complaint to apprise the defendant of what he must be prepared to rebut on the trial. ^ Where the declara- tion set forth that the plaintiff was a ship-master, the words defaming him as such, and that, by reason of the same, " certain insurance companies in the city of New York refused to insure any vessel commanded by him, or any goods laden on board any vessel by him com- manded ; " Held, that the allegation was too general, and that proof could not be given under it of the refusal of a particular company to insure the plaintiff's vessel.^ Where the allegation was that certain persons, naming them, who would otherwise have employed plaintiff, refused so to do ; Held, that the allegation was not supported by evi- dence that certain other persons would have recom- mended plaintiff to the persons named in the declara- tion, and that if the plaintiff had been so recommended, the persons named in the declaration would have em- ployed him ; the not employing being not on account Maine (i Red.) 321 ; Bostwick v. Nicholson, Kirby, 65 ; Bostwick v. Hawley, lb. 290; Shipman v. Burrows, i Hall, 399; Harcourt v. Harrison, lb. 474; Geare v. Britton, Bull. N. P. 7 ; Wilson v. Runyon, Wright, 651 ; Bassil v. Elmore, 65 Barb. 627. Nor to give evidence of a general loss of reputation. (Herrick v. Lapham, 10 Johns. 281.) A complaint for words in vi'riting charging insanity need not allege special damage. (Perkins v. Mitchell, 31 Barb. 461.) So in an action by one of several partners. (Robinson v. Marchant, 7 Q. B. 918.) In an action for defaming one in his trade no allegation of special damage is necessary. (Ingram v. Lawson, 6 Bing. N. C. 212; Foulger t^. Newcomb, 36 Law Jour. Ex. 169; Butler z/. Howes> 7 Cal. 87.) In such cases the occupation supplies the place of special damage. {Ante, note i, p. 279.) ' Hicks V. Walker, 2 Greene (Iowa), 440. Where the language is actionable /^r se, special damage, although alleged, need not be proved. (Cook v. Field, 3 Esp.. Gas. 133; Kelly v. Huffiington, 3 Cranch C. C. 81.) "^ Malony v. Dows, 15 How. Pr. R. 265 ; Robinson v. Marchant, 7 Q. B. 918. ^ Shipman v. Burrows, i Hall, 399. g 345.] THE COMPLAINT. 595 of the slander, but of the non-recommendation/ In an action of slander imputing incontinence to the plaint- iff, it was held enough to state that the plaintiff was occasionally employed to preach to a dissenting congre- gation at a certain licensed chapel, from which he derived considerable profit, and that, by reason of the scandal, " persons frequenting the chapel had refused to permit him to preach there, and had discontinued the emolu- ments which they would otherwise have given him," with- out saying who those persons were, or by w^hat authority they had excluded him, or that he was a preacher duly qualified according to statute (lo Anne, c. 2) ; ^ and in an action for slander for words spoken of the plaintiff in his trade or business, with a general allegation of loss of business, it is competent to the plaintiff to prove, and the jury to assess damages for a general loss or decrease of trade, although the declaration alleges the loss of particular customers as special damage, which is not proved.^ As a general rule the customers should be named,^ but this is not always necessary .^ The omission ' Sterry v. Foreman, 2 C. & P. 592. 2 Hartley v. Herring, 8 T. R. 130. 3 Evans v. Harries, i Hurl. & Nor. 251 ; and per Martin, B. : " How is a public- house keeper, whose only customers are passers-by, to show a damage resulting from the slander, unless he is allowed to give general evidence of a loss of custom ? " {Id. ; and see Rose v. Groves, 5 M. & G. 613 ; Riding v. Smith, Law Rep. i Ex. Div. 91.) The plaintiff may aver a general diminution of business, or particular instances of damage ; in the latter case, the names of the customers lost should be given. (Hamil- ton V. Walters, 4 Up. Can. Rep. 24, O. S.) " Mayne on Damages, 278, 317 ; Feise v. Linder, 3 B. & P. 372 ; Browning v. Newman, i Str. 666; Westwood v. Cowne, i Stark. 172; and see 8 T. R. 130; i Wms. Saund. 243. In New York, it was held that a general averment of loss of customers is not a sufficient allegation of special damages, and that no proof of loss of customers can be given under such an allegation. (Tobias v. Harland, 4 Wend. 537 ; and see Hallock v. Miller, 2 Barb. 630.) The loss of a customer is special damage, although if the dealing had taken place the plaintiff would have lost by it. (Storey v. Challands, 8 C. & P. 234.) ^ Trenton Ins. Co. v. Perrine, 3 Zabr. 402 ; Riding :'. Smith, Law Rep. i Ex. Div. 91. 596 PLEADING. [CH. XIII. of the names of the customers lost, amounts only to a want of definiteness, and in New York is to be taken advantage of by a motion to make definite and certain, not by demurrer.' Where the supposed special damage consists in loss of marriage, the name of the individual with whom the marriage was contemplated should be stated.^ § 346. Where loss of certain customers, naming them, is alleged, the best evidence in support of such alleo-ation is the testimony of the persons named ; ^ and so where it is alleged that certain persons, naming them, refused to employ the plaintiff, the best evidence of such refusal is the testimony of the persons named.* In an action for words not actionable per se, the dec- laration alleged for special damage, that, in consequence of the speaking of the words, four of plaintiff's cus- tomers ceased to deal with him. Three of those persons proved only that they ceased to deal with plaintiff in consequence of reports they had heard in the neighbor- hood ; but the fourth proved the speaking by the defend- ant of words substantially as charged, and stated that he did not deal with plaintiff afterwards. Held, some evi- dence of special damage. = ' Hewit V. Mason, 24 How. Pr. R. 366; and by 15 & 16 Vict. ch. 76, abolishing special demurrers, the right to demur for want of certainty is abolished and a motion to make definite substituted. It has been said that greater certainty is required where the special damage is the gist of the action, than when it is merely laid by way of aggravation. (Wetherell v. Clerkson, 12 Mod. 597 ; Clarke v. Periam, 2 Atk. 33.) An allegation of special damage must be specific. (Cook v. Cook, 100 Mass. 194.) * I Sid. 396 ; I Vent. 4; Cro. Jac. 499 ; 12 Mod. 597 ; and loss of marriage with any other than the one mentioned cannot be proved. (2 Ld. Raym. 1007.) As to alleging special damage in action for slander of title, see ante, note 2, p. 344, and Moore v. Meagher, i Taunt. 39. 2 Tilk V. Parsons, 2 Car. & P. 201; Barnett v. Allen, i Fost. & F. 126; King v- Watts, 8 C. & P. 614. * Johnson v. Robertson, 8 Porter, 486. '" Bateman v. Lyall, 7 C. B. (N. S.) 63S. In King v. Townsend, 2 Law Rep. 126 (Appendix, post), the special damage laid was that A. B. had, by reason of the § 347-] THE COMPLAINT. 597 § 347. A plaintiff may unite in one complaint, a cause of action for slander with a cause of action for libel, or for malicious prosecution,' or slander of title/ Assault and battery cannot be united with slander or libel.3 A cause of action in a plaintiff singly for slander of him in his partnership business, cannot be joined with a cause of action in him and his partners jointly .'^ Sev- eral sets of words, imputing the same charge, and laid as of the same time, may be included in one count^ You may put into one count all the words published at one time, but not words published at different times.^ A complaint which sets out an entire conversation in which the slander was spoken, contains only one cause of action although the conversation consists of several parts, each of which is actionable/ The second count of a declaration in slander charged that in another discourse of and con- cerning plaintiff, &c., the defendant spoke these words : '' You, Mrs. G. (the plaintiff), have used them for years" (innuendo that plaintiff had used fraudulent weights, and libel, wholly ceased to deal with the plaintiff, the proof was that A. B. had not, by reason of the libel dealt with the plaintiff to so great an extent as theretofore, held that this was sufficient evidence of special damage to sustain the declaration. * Martin z/.Mattison, 8 Abb. Pr. R. 3; Shore z/. Smith, 15 Ohio, N. S. 173 ; Kingz^. Waring, 5 Esp. 13 ; Manning v. Fitzherbert, Cro. Car. 271 ; Hull v. Vreeland, 42 Barb. 543 ; Watts v. Hilton, 10 Sup. Ct. Rep. (3 Hun), 606 ; Noonan v. Orton, 32 Wis. 106 ; Delegal v. Highley, 3 Bing. N. C. 950. ' Cousins V. Merrill, 16 Up. Can. C. P. Rep. 114. By statute in Ireland, in an action for slander or libel, counts may be added for false representation of plaintiff's goods. (McNally v. Oldham, 8 Law Times, N. S. 604.) 3 Anderson v. Hill, 53 Barb. 238, overruling Brewer v. Temple, 15 How. Pr. R. 2S6. * Robinson v. Marchant, 7 Q. B. 918. * Rathbun v. Emigh, 6 Wend. 407 ; Milligan v. Thorn, 6 Wend. 412 ; Dioyt v. Tanner, 20 Wend. 190 ; Churchill v. Kimball, 3 Ohio (Ham.) 409; Hoyt v. Smith, 32 Vt. (3 Shaw), 304. « Hughes V. Rees, 4 M. & W. 204. It is allowable to include in the same dec- laration divers distinct words of slander of different import. (Hall v. Nees, 27 111. 411.) It is sometimes a question whether a declaration consisted of one or more counts. (See Cheetham v. Tillotson, 5 Johns. 430; Griffith v. Lewis, 8 Q. B. 841.) ■" Cracraft v. Cochran, 16 Iowa, 301. 598 PLEADING. [CH. XIII. cheated in her trade) ; and also in the last-mentioned dis- course, in answer to a question put by the plaintiff, as to whether the defendant had said to one J. G. that the plaintiff's son had used two balls to the plaintiff's steel- yard, these other words : " To be sure I did," &c. ; and also these other words, &c. : Held, that as there was but one continued discourse at the same time, this was but one count, although the words set out were divided into several sentences.' In New York, where the complaint contains several causes of action, each cause of action must be separately stated and numbered,'' and be perfect in itself.3 § 348. In New York, a supplemental complaint is permitted. A plaintiff in an action for libel may be allowed to serve a supplemental complaint setting out matter material to the action, occurring after the com- mencement of the action. And in that case a supple- mental complaint was allowed, setting up alleged special damage occasioned by the publication of the libel, and occurring after the service of the original complaint.'' ' Griffiths V. Lewis, 8 Q. B. 841 ; 7 Law Times, N. S. 177. ^ Court Rules, 25 ; Pike v. Van Wormer, 5 How. Pr. R. 171. Declaration re- ferred to master to strike out superfluous counts. (Cranage v. Price, i Price Pr. Gas. 45.) ^ Holt V. Muzzy, 30 Vt. (i Shaw), 365 ; Sinclair v. Fitch, 3 E. D. Smith, 689. In Vermont, the pleader may include in a single count words spoken at different times and to different persons, if they relate to the same subject. (Hoyt v. Smith, 42 Vt. 304 ; Hoar v. Ward, 47 Vt. 661.) ^ Scott V. Hallock, MS. Gen. Term Sup. Gt. N. Y. 19 Dec. 1857 ; and plaintiff was allowed to sei-ve a supplemental complaint showing publications prior to the commencement of the action, but of which plaintiff was ignorant when the original complaint was made. (Corbin v. Knapp, 12 Sup. Ct. Rep. [5 Hun], 197.) CHAPTER XIV. PLEADING. ANSWER. DEMURRER. The answer corresponds to pica — What it must con- tain — Plea to part of a count — Answer of justi- fication must give color, show a lawful occasion, and deny malice — Several answers — Defense of truth must be pleaded — How pleaded — Where the charge is general — Where the charge is specific — Certainty in statement of facts — Answer of jus- tification bad in part, bad altogether — Mitigating circu msta nces — Dem urrer — Co u 71 ter-cla i m . § 349. The answer corresponds to the plea in the common-law system of pleading. In New York, it is provided as to an answer, that it "must contain (i) a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief; (2) a statement of any new matter constituting a defense or counter-claim, in ordinary and concise lan- guage, without repetition." And with regard to an answer in the action for slander or libel, it is also pro- vided " the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any miti- gating circumstances to reduce the amount of damages ; and whether he prove the justification or not, he may give in evidence the mitigating circumstances." ' Mate- ' Code of Pro. §§ 149, 165; Bennett v. Matthews, 64 Barb. 410. An answer which merely states that the defendant did not utter the words alleged at the place and time alleged, may be good as a general denial. (Salenger v. Lusk, 7 How. Pr. 600 PLEADING. [cil. XIV. rial allegations in the complaint not controverted by the answer are "taken as true,"' and this applies to allega- tions of inducement' Objections to the complaint not taken by answer or demurrer, are deemed waived except only the objection to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action.^ The defendant is not compelled to verify his answer.* § 350. The general issue in an action for slander or R. 430.) Where, in an action for an alleged libel published in a newspaper, the answer admitted that the defendant was the proprietor of the paper, but denied that the publication complained against was made with his knowledge, consent, assent or permission, and also denied that any person employed by defendant had any right or authority from it to make the publication, the court below held the answer frivolous, but the Court of Appeals reversed that order, on the ground that the an- swer amounted to a denial of the publication by defendant. (Samuels v. Evening Mail Asso. 52 N. Y. 625.) A denial of malice is frivolous unless connected with •allegations of mitigating circumstances. (Daly v. Byrne, i Abb. N. C. 150.) As to a general denial in Maryland. (Hagan v. Hendr)-, iS Md. 177.) An answer alleg- ing that defendant did not speak the words as charged, with malice, &c., that he be- lieved them to be true, stating reasons for such belief, and that he did not believe the words were spoken within six months, held answers of justification and statute of limitations. (Moore v. Edmiston, 70 N. Car. 510.) It is allowable to plead the same matter in justification and in mitigation, but it should be separately stated. After a statement of fact in justification, the pleader may, as a separate statement, add a notice that he will use the same facts in mitigation. (Fink v. Justh, 14 Abb. Pr. Rep. N. S. 108.) A plea that the letter containing the defamatory matter was intended for the plaintiff himself, but by mistake was handed to his employer, was held bad. (Fox v. Broderick, 14 Irish Law Rep. 453.) In an action for libel de- fendant at first pleaded not guilty, but afterwards pleaded, to the further mainten- ance of the action, that plaintiff had recovered damages against another person for the same grievances. New assignment, that the present action was brought fdr different grievances. Plea to new assignment, not guilty. Held, that this did not admit the innuendoes, and that, by pleading not guilty to the new assignment, de- fendant had raised precisely the same issue as if the libel had been set out in the declaration, and defendant had pleaded not guilty to it. (Brunswick, Duke of, v. Pepper, 2 Car. & K. 683.) ' Code of Pro. § 168, and so in England, Hemming v. Power, 10 M. & W. 567 ; Gwynne v. Sharpe, i Car. & Mar. 532. * Fradley v. Fradley, 8 C. & P. 572. ^ Code of Pro. § 148 ; Beach v. Ranney, 2 Hill, 309. Admissions in the answer cannot be retracted on the trial. (Whittemore v. Ware, loi Mass. 353.) * Laws of New York, 1854, P- ^53 ; Scoville v. New, 12 How. Pr. Rep. 319 ; Blaisdell v. Raymond, 5 Abb. Pr. Rep. 144 ; 6 Id. 148. §§350A, 351.] ANSWER. 6oi libel was " not guilty ;" and this had probably a larger effect than has a " general denial " under the New York Code, by which we intend that under the " general issue " matters of defense were admitted which would not be admitted under the " general denial." Under the New York system of pleading, every defense not consisting of a mere denial must be specially pleaded. A defense of privilege must be specially pleaded.' So must the statute of limitations.^ Much relating to the subject of the plea or answer has been anticipated (§§ 21 1-2 1 6), and much more on the subject will be found under the head of Evidence (§§ 403-406). ^ § 350 «. As the inducement must be stated in a trav- ersable form (§ 312), so a denial of a material matter of inducement constitutes a good defense, as where the dec- laration alleged, by way of inducement, that it was dis- graceful for a duly qualified physician of the allopathic school to meet one of the homoeopathic school in con- sultation, and then alleged that defendant had published of plaintiff that he had met in consultation with a homoeopathist, the plea denied that it was disgraceful for a duly qualified physician of the allopathic school to meet one of the homoeopathic school in consultation, and it was held a good plca;^ and so where the declaration alleged that the term black sheep was used in a defama- tory sense, and that the defendant had applied that term to the plaintiff, a plea denying that black sheep was used in a defamatory sense was held good.^ § 351. It was held in New York that a plea in bar must answer the whole count, but that one plea might 1 Bell V. Parke, ii Ir. C. L. Rep. 413. ^ Code of Pro. § 74; Pegram v. Stoltz, 67 N. Car. 144. 3 The general issue admitted the character in which plaintiff sued. (Yeates v. Reed, 4 Blackf. [Ind.] 463.) * Clay v. Roberts, 8 Law Times, N. S. 397. * McGregor v. Gregory, 11 M. & W. 287. 602 PLEADING. [CH. XIV. State several defenses, i. e., different defenses to different parts of one count or statement of a cause of action.' Perhaps the rule is, that, if the matter is divisible (§ 145), although contained in one count, a defendant may plead to part of the matter of one count.^ If the part of the charge not expressly covered by the plea does not amount to an actionable charge, then the plea is in effect to the whole count.^ A plea to a part of a count, and that part not amounting to an actionable charge, is bad ; as where the charge was, " Mr. P. (plaint- iff) told me he had given my child too much mercury, and poisoned ?V," and the justification was only of so much as charged giving too much mercury." § 352. An answer of justification must give color to the extent of admitting, for the purposes of the answer only, the publication complained of.^ But this admission cannot be used to defeat a denial by a separate answer, ^ Cooper V. Greeley, i Denio, 365 ; and see Ames v. Hazard, 6 R. I. 335 ; 8 Id. 143. That a plea may apply to part of a libel, see Spencer v. Soutlivvick, II Johns. 573. " See Edwards v. Bell, i Bing. 403 ; Cooper v. Lawson, i Perr. & D. 15 ; O'Connell v. Mansfield, 9 Ir. Law Rep. 179 ; and see ante, note 7, p. 214, and Torrey v. Fields, 10 Vt. 353. Where the first count in a declaration for a libel, alleged that plaintiff, a proctor, had been three times suspended, and the second count alleged the having been suspended three times for extortion ; the plea as to so much of the charge as imputed one suspension, justified it as being true, held on demurrer that the plea was good, and that it was sufficiently applicable to the charge in the first count, if not to that in the second. (Clarkson v. Lawson, 6 Bing. 587.) ^ Barrows v. Carpenter, i Cliff. 204; Clarke v. Taylor, 3 Scott, 95. If the part not justified contains ambiguous statements, the court will not draw any libelous inference from them, if plaintiff has not done so in his declaration. {Id.) 4 Edsall V. Russell, 4 M. & Gr. 1090 ; 5 Sc. N. R. 801. 5 Fidler v. Delavan, 20 Wend. 57 ; Wilson v. Beighler, 4 Iowa, 427 ; Van Derveer V. Sutphin, 5 Ohio, N. S. 293 ; Edsall v. Russell, 2 Dowl. N. S. 641 ; .5 Sc. N. S. 801 ; Davis v. Matthews, 2 Ham. 257 ; Folsom v. Brown, 5 Foster (N. Hamp.) 114; Samuel v. Bond, Litt. Sel. Gas. 158; Buddington v. Davis, 6 How. Pr. R. 402; Porter v. McCreedy, i Code Rep. N. S. 88. A plea of justification held bad unless accompanied with a traverse of the publication in a manner to defame. (Crawford V. Milton, 12 S. & M. 328 ; see Carlock v. Spencer, 2 Eng. 12.) § 353-] ANSWER. 603 because "one plea cannot be taken to help or destroy another, but every plea must stand or fall by itself."' A plea of privileged publication must show a lawful occa- sion, and a denial of malice ; a plea which only alleged that the defendant spoke the words on such occasion, firmly believing them to be true, was held bad for want of an express or implied denial of malice.^ § 353- The defendant may, in one answer, set up a general denial, or not guilty, and a justification on the ground of truth.^ But he cannot, with not guilty as to 1 Grills V. Marwells, Willis, 380; Kirk v. Nowell, I T. R. 125 ; Montgomery v. Richardson, 5 C. & P. 247 ; and see cases collected, Voorhies' Code, 296 c, 8th edit. ; contra, see Jackson v. Stetson, 15 Mass. 48; Alderman v. French, i Pick, i ; Cilley V. Jenness, 2 N. Hamp. 8g; Whitaker v. Freeman, i Dev. 280; Wheeler v. Robb, I Blackf: 330 ; Wright v. Lindsay, 20 Ala. 428 ; Doss v. Jones, 5 Howard (Miss.) 158 ; Rev. Stat, of Mass. ch. 100, § 18 ; Hix v. Drury, 5 Pick. 260. '^ Smith V. Thomas, 2 Bing. N.C. 372; 2 Sc. 543 ; 4 Dowl. Pr. Gas. 333. Except in defenses of privileged publication, the denial of malice forms an immaterial issue. (Fry v. Bennett, 5 Sandf. 54.) When privilege is established malice must be shown. (Gaulfield v. Whitworth, 16 Weekly Rep. 936.) A plea of privileged com- munication must show it was defendant's duty or interest to make the publication. (Praeger v. Shaw, 4 Ir. Rep. Gom. Law, 660 ; and see Echlin v. Singleton. 14 Ir. Jur. [7 N. S.] 225 ; Simmonds v. Duane, 5 Ir. Rep. Gom. Law, 358.) A defense of fair comment must allege the publication to have been a fair comment upon the plaintiff's conduct on the occasion therein referred to. (Clinton v. Henderson, 13 Ir. Rep. Gom. Law, Appendix, xliii. The plea in Earl of Lucan v. Smith, 26 Law Jour. Ex. 94, note 2, disapproved of.) Action of libel for publishing a sentence of suspension pronounced by defendant against plaintiff. Pleas, (i) that plaintiff was suspended for breach of the laws of the Ghurch of Rome ; (2) privilege ; replication to first plea, that a law of the Ghurch prohibited one ecclesiastic from impleading another in a temporal court, and that the sole ground of plaintiff's suspension was that he being an ecclesiastic, had im- pleaded another ecclesiastic in a temporal court. Rejoinder, that such impleading was for slanderous words spoken by him in his character of priest concerning plaint- iff", and that such impleading violated a law of the Ghurch. On demurrer, held both pleas were bad. (O'Keefe v. Gullen, 7 Ir. Rep. Gom. Law, 319.) ^ Buhler v. Wentworth, 17 Barb. 649 ; Hollenbeck v. Glow, 9 How. Pr. Rep. 289 ; Ormsby v. Brown, 5 Duer, 665 ; Payson v. Macomber, 3 Allen (Mass.) 69 ; Miller V. Graham, i Brevard, 283 ; Smith v. Smith, 39 Penn. St. Rep. 441 ; Harper v. Harper, 10 Bush (Ky.) 447; Horton v. Banner, 6 Id. 896 ; and see Kelly v. Graig, 9 Humph. 215 ; contra, Attebury v. Powell, 29 Mo. (8 Jones), 429. To a declara- tion containing three counts for three distinct libels, the court refused to allow the defendant to plead one general plea of justification. (Honess v. Stubbs, 7 G, B. N. S. 555-) Inconsistent defenses allowed. (Horton v. Banner, 6 Ky. (Bush), 596 ; Weston V. Lumley, 33 Ind. 486.) 604 PLEADING. [CII. XIV. the whole declaration, plead as to part of the declaration, a special plea of apology and payment into court under the statute 6 & 7 Vict. ch. 96.' Although a defendant may be allowed with not guilty to plead the mere fact that the words were a fair comment without malice, he cannot with not guilty interpose a plea alleging the exist- ence of certain facts, and that the alleged libel was a fair comment on transactions of public notoriety. The fact of fair comment is involved in not guilty .'' § 354. A defendant, to avail himself of the defense of truth, must set it up as a defense by plea or answer.^ The defense of truth may be interposed, although the power to punish for the offense has been tolled by lapse of time,* or although the plaintiff has been tried upon the charge and acquitted ^ or pardoned.^ § 355. That the justification on the ground of truth must be as broad as the charge, and must justify the pre- ' O'Brien v. Clement, 15 M. & W. 435 ; 3 D. & L. 676 ; 15 Law Jour. Rep. 285, Ex. Apology is by statute, in Virginia, a mitigation. '^ Lucan v. Smith, i Hurl. & N. 481 ; 20 Jur. U07. The fact that the same matter which is specially pleaded might be given in evidence under the general issue is not always a sufficient ground for rejecting the special plea. (Parker v. McQueen, 8 B. Monroe, 16.) Plea of apology and traverse of alleged defamatory sense not allowed. (Bariy :'. McGrath, 3 Ir. Rep. Com. Law, 576.) In an action for a libel contained in two letters published in a newspaper, the defendant pleaded that the second letter (itself actionable) was a fair comment upon the facts in the first letter; held bad. (Walker v. Brogden, 19 J. Scott, N. S. 64.) Form of plea of fair com- ment. (Clinton v. Henderson, 13 Ir. Rep. Com. Law, Appendix 43 ; O'Keefe v. Cullen, 7 Ir. Rep. Com. Law, 551 ; see § /[O(),post.) ^ Ante, §§ 211 to 216, note 2, p. 357, § ^cx), post ; Manning v. Clement, 7 Bing. 367 ; 2 Greenl. Ev. 424 ; Hagan v. Hendy, 6 R. I. 335 ; Frederitz v. Odenwalder, 2 Yeates, 243 ; Barrows v. Carpenter, i Cliff. 204. The plea of truth is an issuable plea. (Woodward v. Andrews, i Brev. 310.) * Ankin v. Westfall, 14 Johns. 234. Where the words were actionable per se, a plea of not guilty within two years held good. (Quinn v. Wilson, 13 Irish Law Rep. 381.) ^ Cook V. Field, 3 Esp. 133 ; England v. Bourke, IJ. 80. * Ante, note 2, p. 357, and § 158. § 355-] ANSWER. 605 cise charge, has already been considered^ (§ 212). We have now but to point out some other requisites of a plea or answer on the ground of truth. These depend upon whether the charge is general or specific. Where the charge is in general terms, the answer must state the facts which show the charge to be true. It is not suffi- cient merely to allege that the charge is true.^ As if the charge be that the plaintiff is a swindler,^ or a thief, or a perjurer, or a murderer,'* or that he stole a watch,^ or certi- fied a lie,<^ or was of intemperate habits,^ or received a bribe,^ • Where the charge was, "I caution you against M. W. (plaintiff); she came here an excommunicated prostitute, the outcast of a barrack held that a plea that plamtiff was a prostitute was not a justification. (Wright v. Sullivan, Hayes Ir. Ex Rep. 104.) ' Fry V. Bennett, 5 Sandf. 69 ; Lawton v. Hunt, 4 Rich. 458 ; Atteberry v. Powell 29 Mo. (8 Jones), 429 ; Billings v. Waller, 28 How. Pr. Rep. 97 ; Barrows v Car- penter, I Cliff. 204; Cook V. Tribune Asso. 5 Blatchf. C. C. 352 ; Bruton v. Downes I Fost. & F. 668 ; Holmes v. Catesby, i Taunt. 543. Where a particular meaning IS alleged, it is not sufficient to say the charge is true, with the addition of time, place, and circumstance. (Fidler z/. Delavan, 20 Wend. 57.) A man cannot de- fame in one sense and justify in another. {Id. ; Kerr v. Force, 3 Cranch C. C 8 ) But since the common-law procedure act in England, a general plea of justification IS allowed there, but in such case the plaintiff is entitled to particulars of the charges intended to be justified. (Behrens v. Allen, 8 Jur. N. S. 118 ; Tones v. Bewicke Law Rep. 5 C. P. 32.) » J'Anson v. Stuart, i T. R. 748. It is not a justification of a charge of plaintiff bemg a swindler to allege that defendant delivered to plaintiff goods to sell on com- mission, that he failed to return them or to account for them, and that he made an assignment for the benefit of his creditors. (Herr v. Bamberg, 10 How. Pr. Rep. 128.) It is not a justification of a charge that plaintiff had appropriated a play called " Flirtation " to allege that plaintiff appropriated a play called " Mock Marriaae ■' (Daly V. Byrne, i Abb. N. C. 150.) " ' ' Anon. 3 How. Pr. Rep. 406 ; 4 Id. 98, 347 ; Sayles v. Wooden, 6 /d 84- John- son V. Stebbins, 5 Ind. 364. Where the words complained of were, " She is a thief and has stolen my gold pen and pencil," held that the answer might properly allege a variety of thefts by the plaintiff of different articles, as going to justify the words " She IS a thief." (Jaycocks v. Ayres, 7 How. Pr. Rep. 215.) A charge of forgery against a whole community was held to be justified by alleging a falsification of poll books. (Fellows v. Hunter, 20 Up. Can. Q. B. Rep. 382.) * Anibal v. Hunter, 6 How. Pr. Rep. 255. ' Jones V. Cecil, 5 Eng. 593. ' Buddington v. Davis, 6 How. Pr. Rep. 401. * Van Ness v. Hamilton, 19 Johns. 349. :39 6o6 FLEADING. [CH. XIV, or perverted the law.' The distinction seems to be that where the charge is a conclusion or inference from certain facts, there the plea must set up the facts which warrant such an inference ; but where the charge is of some specific act or acts, there it is sufficient if the plea allege that the charge is true. Thus, if it be said of a man, that he is a swindler, this is an inference from his actions, and which can be proved only by showing acts of fraud on the part of the plaintiff amounting to swin- dling ; and, therefore, as we have seen, to justify a charge of being a swindler, the plea must allege the facts upon which the defendant relies to make out the charge. Where the defendant attempted to justify a charge of fraud by setting up in his plea that he and plaintiff had had dealings together, and defendant believing that plaintiff had cheated him, and in consequence of such belief, and believing said charge to be true, he published the same, the plea was set aside as embarrassing and un- certain.^ When the charge is general, and the answer merely an averment that the charge is true, the plaintiff may, it seems, under the New York practice, apply to have the answer made "definite and certain ;" but he is not obliged to do this, he may lie by, and on the trial object to the reception of any evidence in support of such a plea, either in bar or in mitigation.^ In England, ^ Riggs V. Denniston, 3 Johns. Cas. 19S. In an action of slander, when the charge is made directly, the plea of justification should aver the truth of the charge, as laid in the declaration ; but when the charge is made by insinuation and circum- locution, so as to render it necessary to use introductory matter to show the meaning of the words, the plea should aver the truth of the charge which the declaration alleges was meant to be made. (Snow v. Witcher, 9 Ired. 346 ; and see Behrens v, Allen, 3 Fost. & F. 135.) "^ Hennessey v. Morgan, 8 Ir. L. R. N. S. Ixix, Appendix. ^ Wachter v. Quenzer, 29 N. Y. 553; Tilson v. Clark, 45 Barb. 181 ; and see Brickett v. Davis, 21 Pick. 404. Generally upon the trial the plaintiff cannot object to the insufficiency of a plea of justification (Evans 7'. Franklin, 26 Mo. [5 Jones], 252), as he might have demurred; but if the justification be proved, the defendant is entitled to a verdict on that plea. (Edmonds v. Walter, 3 Stark. R. 7 ; and see § 356.] ANSWER. 607 the practice seems to be to allow, in all cases subject to a bill of particulars, a general plea of justification/ § 356. As to specific charges. Where the charge is specific, there the answer need only to allege that the charge is true. Thus in an action for calling the plaintiff thief, and saying he stole two sheep of J. S., the defend- ant pleaded that the plaintiff stole the same sheep, by reason of which he (defendant) called plaintiff thief, as well he might, and the plea was held good." And so where the charges were of theft of certain articles speci- fied, and of practicing prostitution, specifying instances ; ^ and where the charge was that the plaintiff, as inspector of drugs, had improperly passed an adulterated article, an answer merely alleging the charge to be true was held to be sufficient-^ A plea that the defamatory matter "is true in substance and effect," means that it is true in every material particular. ^ To a charge of being a liar, a Churchill V. Hunt, 2 B. & Aid. 685 ; i Ch. 480; contra, as to a notice of justification, Thompson v. Bowers, i Doug. 321.) Held to be error for the court to charge of its' own motion that the plea is so defective as not to be available to the defendant. (Bryan v. Gurr, 27 Ga. 378.) A. sued B. for charging him with perjury. B. justified as follows : " Defendant avers that plaintiff, in swearing to a complaint against Samuel Steele, executor, &c., swore falsely by stating in said complaint that said estate owed nothing, when plaintiff then knew the estate was indebted, "&c. Held insuffi- cient, as it gave plaintiff no information of the indebtedness to be proved. The fact that plaintiff took issue on this plea did not entitle defendant to give any evidence in support of it. (Steele v. Phillips, 10 Humph. 461.) ' Gourley v. Plimsoll, Law Rep. 8 C. P. 362. In New York a bill of particulars, will not be ordered. (Orvis v. Dana, i Abb. N. C. 268.) 2 I Rolle Abr. 87 ; Fitch v. Lemmon, 28 Up. Can. Q. B. Rep. 273. Where the original charge is in itself specific, the defendant need not further particularize it in his plea. (I Stark. Sland. 478.) A plea that the charges are true, held bad. (Baretto V. Pirie, 26 Up. Can. Q. B. Rep. 46S.} ^ Steinman v, Clark, 10 Abb. Pr. R. 132. * Van Wyck v. Guthrie, 4 Duer, 268. A general plea averring the plaintiff's residence m O. county, his being known to divers citizens there, and having a bad reputation among them, is good. (Cooper v. Greeley, i Denio, 347.) ' Weaver v. Lloyd, 4 D. & R. 230. An answer which alleged that the matter complamed of was true, according to the true intent and meaning thereof, was, on de- murrer, held good ; the words in italic were surplusage. (Kelly v. Taintor, 48 How. Pr. R. 270.) A plea to an action for libel purporting to be the report of a trial " that 6o8 PLEADING. [CH. XIV. plea that " sundry honest men, to wit, A. B.,"&c., naming them, " and others, beHeved and considered the plaintiff' not to be a man of truth, but addicted to falsehood," would not be sufficient justification." § 357. The facts which show the charge to be true must be stated with certainty,^ so that the court may see whether the defendant was justified in w^hat lie pub- lished ; 3 and (when a reply was necessary) so that the plaintiff might have an opportunity of denying and tak- ing issue upon the facts alleged ; and it was no excuse for general pleading that the subject comprehended a multiplicity of facts tending to prolixity, nor that the plea was not more general than the charge.* Where a alleged libel was in substance a true report of the trial." held bad on demurrer. (Flint V. Pike, 6 D. & R. 528 ; 4 B. & C. 473 ) To a declaration for an alleged libel published in a newspaper, purporting to be an account of the trial of an action, the plea stated that at the trial the counsel made the speech set out in the alleged libel, and that certain witnesses proved all that had been so stated ; held bad on demurrer, for that the plea ought to have detailed such evidence, and shown the truth of the facts so stated, and not merely have stated the conclusion which the party himself drew from the evidence. (Lewis v. Walter, 4 B. & Aid. 605.) ' Brooks V. Bemiss, 8 Johns. 455 ; see Wilson v. Fitch, 41 Gal. 363. Under a plea of justification on the ground of truth, the defendant cannot show that he be- lieved the charge true. (Hix v. Druiy, 5 Pick. 296.) Justification of a libel, that from what had been said there was a reason for thinking the imputation was true ; held bad on demurrer, unless it is stated what had been said, and by whom. (Lane V. Howman, i Price, 76.) To constitute a justification, the answer should aver the truth of the defamatory matter charged. It is not sufficient to set up the facts which only tend to establish the truth of such matter. (Thrall v. Smiley, 9 Gal. 529.) Where it was alleged that the defendant spoke of the plaintiff, " I am told M. (plaintiff) was the man who killed the peddler, and I believe it," a plea which averred that defendant was told plaintiff was the man who murdered the peddler, and that the defendant did believe it, was held bad. (Muma v. Harmer, 17 Up. Gan. Q. B. Rep. 293.) Where the charge was: "There is no doubt but that he (plaintiff) abstracted the cable," innuendo stole it. A plea that it had been rumored that a party of persons, including the plaintiff, had taken said cable, held no justification. (Ede V. Scott, 7 Ir. L. R. N. S. 607.) ' Van Ness v. Hamilton, 19 Johns. 349 ; Riggs v. Denniston, 3 Johns. Gas. 198. A plea of justification is taken most strongly against the pleader; everything must be precisely alleged; it must be "certain to a certain intent in general." (Kerr v. Force, 3 Gr. G. G. 8.) ' Torrey v. Field, 10 V^t. 353 ; Johnson v. Stebbins, 5 Ind. 364. ^ Van Ness v. Hamilton, 19 Jchns. 349. § 357-] ANSWER. 609 declaration stated that plaintiff was lawfully possessed of mines and of ore gotten from them, and was in treaty for the sale of the ore, and that the defendant published a malicious, injurious, and unlawful advertisement, caution- ing persons against purchasing the ore, &c., per quod he was prevented from selling ; to which the defendant pleaded in justification, that the shareholders in the mines thought it their duty to caution persons against purchasing the ore, &c. (pursuing the words of the ad- vertisement) ; this plea was held ill on special demurrer : first, because it did not disclose the names of the adven- turers, or who they were ; and secondly, because it did not show that the defendant made the publication under the direction of the shareholders.' And where the plaintiff, a justice of the peace, brought an action against the defendant for charging him with pocketing all the fines and penalties forfeited by delinquents whom he had convicted, without distributing them to the poor, or in any manner accounting for a sum of ^50 then on hand^ the defendant pleaded that the plaintiff was a justice of the peace, and that, during the time he acted as such, he convicted sundry persons in sundry sums of money, for divers offenses against divers statutes, which sums, amounting together to ^50, he received of the persons so convicted, and had not paid over the same as required by law. On special demurrer, the plea was held bad (not sufficiently certain) for not stating the names of the persons who paid said sums of money, and the amount which each person paid." Where the libel stated that the plaintiff, as manager of the opera, employed his critics in attacking, in corrupt and purchased new^spapers, the females of his company, it was held that the justifi- cation of such a charge must state the names of the ' Rowe V. Roach, i M. & S. 304. '^ Newman v. Bailey, 2 Chit. R. 665. 6lO PLEADING. [CH. XIV. critics, of the females, and of the corrupted newspapers, and the substance of the articles, and the time and place of their publication.' But where the libel charged that certain exhibitions of opera by the plaintiff were an unfit resort for respectable people, and that they were attended by persons of certain specified immoral and illegal occu- pations or pursuits — held that an answer justifying such charge need do no more than reaffirm the statement con- tained therein, and need not specify the names of the persons who attended such exhibitions ; and certainly this will be the case where the defendant alleges that the names of such persons are unknown to him.' Where the charge was that the plaintiff made himself invisible on account of too much borrowing and not paying, innuendo that plaintiff ran away, held that an answer which stated "it is true the plaintiff made himself invis- ible on account of too much borrowing and not paying, that is, ran away," was insufficient.^ And in an action of slander in charging the plaintiff, a pawnbroker, with the practice of duffing, i. e., of doing up damaged goods and pledging them again, a plea alleging that the plaintiff did do up divers damaged goods and repledge to divers persons, &c., was, on special demurrer, held bad, for not stating specific instances and persons.* And where the libel charged an attorney with general misconduct, viz., gross negligence, falsehood, prevarication, and excessive bills of costs in the business he had conducted for the defendant, a plea in justification repeating the same ' Fry V. Bennett, 5 Sandf. 54. * Maretzek v. Cauldwell, 2 Robertson, 715. 3 Wachter v. Quenzer, 29 N. Y. 552. A charge of moral obliquity must be proved by some act done mala fide. (Kerr v. Force, 3 Cranch C. C. 8.) ■* Hickinbotham v. Leach, 2 Dowl. Pr. Gas. N. S. 270; 10 M. & W. 361. To an action for slander in charging the plaintiff with stealing corn and fodder from various persons, a plea of justification leaving blanks for the dates and amounts would be bad on special exception, but cannot be attacked on a general exception. (George ■V. Lemon, 19 Texas, 150.) § 357-1 ANSWER. 6ii general charges, without specifying the particular acts of misconduct, was, upon demurrer, held insufficient/ A declaration alleged that plaintiff was cashier to Q., and that defendant, in a letter addressed to Q., wrote, " I conceive there is nothing too base for him (plaintiff) to be guilty of" Plea, in justification, alleged that plaintiff signed and delivered to defendant an I. O. U., and afterwards, on having sight thereof, falsely and fraudu- lently asserted that the signature was not his ; and the plea averred that the libel was written and published solely in reference to this transaction — held a sufficient justification, as the libel must be understood with refer- ence to the subject-matter/ Where the defendant, a rail- way corporation, published a placard headed " Caution," and containing the plaintiff's name and address, and stated that he had been convicted of traveling on its railway without having first paid his fare, in an action for libel, the declaration contained an innuendo that the defendant meant thereby that the plaintiff had attempted to defraud the company ; the plea was to the effect that the plaintiff was charged and convicted as alleged ; on demurrer, this plea w^as held good, as containing a justi- fication of the charge and of the innuendo/ • Holmes v. Catesby, i Taunt. 543. - Tighe V. Cooper, 7 El. & B. 639 ; 21 Jur. 716. A plea of justification need not meet the exact words of the libel, but may adopt the sense put by the innuendo, and justify that. (O'Connor v. Wallen, 6 Irish Law Rep. 378.) The declaration, after alleging that plaintiff had taken an oath under the election law, alleged that defendant charged plaintiff with having sworn false, meaning that plaintiff was guilty of perjury. Plea that plaintiff did swear false, in swearing he was a resident, plea held bad ; it should have been the general issue, or have justified the perjury. (Strachan v. Barton, 35 Up. Can. Q. B. Rep. 374.) 2 Biggs V. Gt. East. R. R. 18 Law Times, N. S. 482. The declaration alleged that defendant had published of plaintiff, then late a conductor in the employ of de- fendant, that an envelope was mailed at Hamilton, containing four coupon tickets, &c., and that plaintiff had been dismissed, innuendo that plaintiff had conducted himself fraudulently in his said employment, and attempted to defraud the company, and had been dismissed therefor. Plea, that an envelope was mailed, &c. Held, for the plea was good. It undertook to justify the alleged libel with the innuendoes, c(Tench v. Svvinyard, 29 Up. Can. Q. B. Rep. 319) 6l2 PLEADING. [CH. XIV. § 358. It is said that to justify a charge of crime, the plea or answer must specify the crime with certainty/ and show the commission of the crime with as much cer- tainty as in an indictment for such crime/ In an action of slander for charging the plaintiff with having stolen the defendant's shingles, a justification stating that the plaintiff had sold the defendant's shingles without author- ity, and afterward denied that he knew anything respect- ing them, without alleging that the plaintiff took them privately or feloniously, was held not to amount to a charge of larceny, and was bad as a justification/ To a charge of procuring an abortion, it was held not a suffi- cient plea that the plaintiff assisted in procuring an abor- tion, without allegations showing the assistance criminal." Where the charge was that plaintiff "swore falsely," without reference to any judicial or other proceeding in which an oath could have been lawfully administered, a plea of justification pointing the plaintiff to the time, place, and occasion of his false swearing, and alleging the truth of the words spoken, was held to be good.^ Where the charge is perjury, the plea must allege not only that the defendant testified to what was untrue, but that he did so knowingly,^ and that the matter testified to was material.^ If the chars^e be of havinof sworn falselv in a ' Nail V. Hill, Peck (Tenn.) 325. When any circumstance is stated which de- scribes or identifies the offense, it must be averred for the purpose of showing that it is the same offense. (Sharpe v. Stephenson, 12 Ired. 348.) "^ Snyder v. Andrews, 6 Barb. 43 ; Steele v. Phillips, 10 Humph. 461. ^ Shepard v. Merrill, 13 Johns. 475. * Bissell V. Cornell, 24 Wend. 354. 5 Sanford v. Gaddis, 13 III. 329. To an action of slander for charging the plaintiff with having forged a certain instrument of writing, the truth was pleaded in justification. Held, that such a plea could not be objected to because it avers the forged instrument to be in the plaintiff's possession or destroyed. Held, also, that in a plea with such an averment, the instrument need not be so particularly de- scribed as would be otherwise required. (Kent v. David, 3 Blackf. 301.) '' Chandler z'. Robison, 7 Ired. 4S0. '' McGough V. Rhodes, 7 Eng. 625 ; Harris v. Woody, g Mo. 112. It is no justification to an insinuation of perjury against the plaintiff (who had sworn to an § 358.] ■ ANSWER. 613 judicial proceeding, without the necessary averments to make the slander amount to an imputation of perjury* then a plea of justification, that the plaintiff did swear falsely in the particular proceeding, would be sufficient/ Where the charge is that the plaintiff perjured himself on a particular occasion, the justification must be confined to that.^ Thus in slander for charging the plaintiff with committing perjury in making a certain statement, set out in the declaration, as a witness in a certain case, the defendant pleaded that the plaintiff did commit perjury by making that statement, and that on the same trial he committed perjury by another statement made by him on the same trial, and not set out in the declaration. On demurrer to both pleas, the first was held good and the second bad.^ In an action for slander in charging the plaintiff with perjury, a plea was that the words were spoken in reference to the testimony of the plaintiff on the trial of a cause, and after setting out the parties, the nature of the action, and the questions litigated, it stated the evidence given on such trial, and averred that the words were spoken in refereftce to certain parts of the testimony {specifying the^n^ which were not material to the issue, and that the defendant was so understood by assault by A B. on him), that it did appear (which was the suggestion in the libel) from the testimony of every person in the room, &c., except the plaintiff, that no- violence had been used by A. B., &c. ; for noti constat thereby that what the plaintiff swore was false. Neither is it sufficient in a justification to such a libel, where the extraneous matter was so mingled with the judicial account as to make it uncertain whether it could be separated, to justify the publication by general reference to such parts of the supposed libel as purport to contain an account of the trial, &c., and that the said parts contain a just and faithful account of the trial, &c. (Stiles v. Nokes, 7 East, 493.) ' Sanford z/. Gaddis, 13 III 329. "The answer should set forth the evidence, and what was actually sworn to by the plaintiff at the time alleged " (3 Ch. PL 1039 ; Yates' Plead. 430 ; Woodbeck v. Keller, 6 Cow. 122), and the Code of New York has not altered the rule in this respect. (Tilson v. Clark, 45 Barb. 180; Wachter v, Quenzer, 29 N. Y. 553.) '^ Palmer v. Haight, 2 Barb. 210. ^ Starr v. Harrington, i Smith (Ind.) 350. 6l4 PLEADING. [CH. XIV. the hearers; it was held that the words in italic \wGre irrelevant.' A plea in an action of slander for charging the plaintiff with committing a felony, which admits the speaking of the words charged, but avers other facts in order to show that the words were not actionable, must show either that it appeared by the whole of defendant's statements, in the same conversation and company, that no felony had been committed, and therefore that there was no charge of felony, or that the charge was made known to the defendant by a third person, named in the plea, before he uttered the words.^ § 359. If a material part of a plea of justification fails, the plea fails altogether.^ Thus, in an action for libel, the declaration set out the whole of a long letter, in which the defendant imputed to the plaintiff improper conduct in various transactions which had taken place in reference to a ditch of the plaintiff's, alleged by the de- fendant to be a nuisance. The defendant pleaded " as to so much of the libel as related to, and charged the plaintiff with, the keeping of the nuisance," a plea which attempted to justify every sentence in the letter. The jury found that the plaintiff kept the ditch as a nuisance, but negatived the improper conduct imputed to the plaintiff in the letter. Held that, upon this finding, the plaintiff was entitled to a verdict* Where the charge ' Allen V. Crofoot, 7 Cow. 46. - Parker v. McQueen, 8 B. Monr. 16. An averment that the plaintiff did falsely, fraudulently, and unlawfully alter a note, so as materially to change the terms and conditions thereof, is a good plea in justification of a charge of forgery. (Kerr v. Force, 3 Cranch C. C. 8.) It was held to be a justification of a charge of forgery, to show that the charge was intended to mean the altering of poll books, and that plaintiff had altered poll books. (Fellowes v. Hunter, 18 Up. Can. Q. B. Rep. 382.) * Cory V. Bond, 2 Fost. & F. 241. * Biddulph V. Chamberlayne, 17 Q. B. 351. Where, in an action for a libel in reference to an advertisement by the plaintiff tending to injure the defendants, his former partners, in their trade, the defendant justified, and relied on the construc- tion of such advertisement, as set out in the introductory part of the declaration ; held, that that not supporting the inferences in the libel, the plaintiff was entitled to recover. (Chubb v. Flannagan, 6 C. & P. 431 ) §§ 3^0' S^I-] ANSWER. 615 was that plaintiff had acted for spite and lucre, the de- fendant justified, but his justification failed as to lucre, held that the charge being entire, the plaintiff w^as en- titled to a verdict/ and w^here a part only of a divisible charge is justified, the defendant is liable for the part not justified." So where the charge was, He (plaintiff) has robbed me to a serious amount, the defendant, in ad- dition to the general issue, as to the words he has robbed me, pleaded that plaintiff had robbed him (defendant) of a loaf of the value of three pence, the jury found the words as laid, and that the plea was true, but were directed to assess the plaintiff's damages for the words not justified, namely, "to a serious amount," and the court in banc held the direction proper.^ • § 360. In some States, by statute, a notice or specifi- cation of the defense is substituted for a plea or answer. Such a notice must, it seems, contain all the material allegations of a plea or answer.'^ § 361. In New York, and in some other States, by statute the defendant may, in co7inection with a general denial, and with or without a defense of justification, set up in his answer mitigating circumstances to reduce the amount of damages.^ But it would seem that a defend- ant cannot set up mitigating circumstances alone, with- out any other answer constituting a defense, because an answer merely setting up mitigating circumstances would ' Cory V. Bond, 2 Fost. & F. 241. 2 Clarke v. Taylor, 3 Scott, 95. ^ Bayley & Holroyd, JJ., in the Lancaster C. P. " Van Derveer v. Sutphin, 5 Ohio, N. S. 293; Brickett v. Davis, 21 Pick. 404 ; Shepard v. Merrill, 13 Johns. 475 ; Mitchell v. Borden, 8 Wend. 570; Bissell v. Cornell, 24 Wend. 354. 5 Code of Pro. § 165; Bush v. Prosser, 11 N. Y. 347 ; Bisbey v. Shaw, 12 N. Y. 67; Dolevin v. Wilder, 34 How. Pr. R. 488 ; 7 Robertson, 319 ; Van Benschoten v. Yaple, 13 How. Pr. R. 97 ; Heaton v. Wright, 10 Id. 79 ; Ayres v. Covill. 18 Barb. 260 ; Bennett v. Matthews, 64 Barb. 410. 6l6 PLEADING. [CH. XIV. not raise an issue.' Mitigating circumstances are such circumstances as the well-established rules of law allow to be given in evidence in mitigation of damages," and what those circumstances are will be considered under the head of Evidence. The question whether the facts set up are or are not such as should be permitted to be given in evidence in mitigation, is properly to be decided by the judge on the trial of the issue of fact.^ And, therefore, although a plaintiff may move, prior to the trial, to strike out as irrelevant and redundant allegations of facts which the defendant avers he will prove on the trial in mitigation,* yet where there is any doubt as to whether or not the facts alleged in the answer would be received in evidence on the trial, the motion, prior to the trial, should be denied. Where a defendant seeks to mitigate damages by pleading facts and circumstances which induced him, at the time of making the charge, to believe it true, (i) the facts and circumstances must be such as would reasonably induce, in the mind of a person possessed of ordinary intelligence and knowledge, a belief of the truth of such charge ; (2) it must also appear that the defendant, before and at the time of making the charge, knew such facts and circumstances ; and (3) that he was, by reason of the facts and circumstances so set forth, induced to believe in the truth of the charge. Unless it contain all these allegations, it may be stricken out on motion. Upon a motion to strike out, as redun- dant or irrelevant, matter set up in mitigation, the court ' Newman v. Otto, 4 Sandf. 669 ; Maretzek v. Cauldwell, 19 Abb. Pr. R. 40 ; but see Van Benschoten v. Yaple, 13 How. Pr. Rep. 97. - Graham v. Jones, i Code Rep. N. S. 181; 6 How. Pr. R. 15 ; Blickenstaff v. Ferrin, 27 Ind. 527. Anything tending to disprove actual malice, although it may tend to establish the truth, is admissible in mitigation. (Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 Id. 67.) ^ Newman v. Harrison, i Code Rep. N. S. 184; Fry v. Bennett, 5 Sandf. 54. * Van Benschoten v. Yaple, 13 How. Pr. R. 97. § 36l-J MITIGATING CIRCUMSTANCES. 617 is to see whether such matter can, by any possibility, be received in evidence ; if it can, it should not be stricken out. It should not be stricken out if the court has the slightest doubt as to its inadmissibility.' It is supposed that, in New York, the defendant on the trial can give in evidence only such matter of mitigation as he has set up in his answer, and that, if the answer does not contain any matter of mitigation, no evidence in mitigation can be admitted on the trial.^ On an assessment of damages, where there is no answer, matter in mitigation may be received. Although matter in mitigation of damages is not a subject of demurrer, yet if set up in the answer, without any allegation that it is set up in mitigation merely, the plaintiff may infer it is set up in bar, and may demur to it.^ 1 Dolevin v. Wilder, 34 How. Pr. R. 488 ; Gorton v. Keeler, 51 Barb. 475. De- fendant published in his newspaper: " Dr. B. [plaintiff] makes a very bad book, and vends medicines to match." In an action for this publication, defendant an- swered in effect : (i) That plaintiff was engaged in vending worthless books and injurious and deceptive compounds as medicines; (2) That defendant, as a journal- ist, deemed it his duty to expose such deception ; (3) That the books published by plaintiff, specifying them, were of an immoral and deceptive character; (4) That plaintiff prepared so-called medicines, specifying them, which were frauds and swindles, and that these allegations would be proved in justification and mitigation. The court refused to strike out these allegations as irrelevant. (Byrn v. Judd, il Abb. Pr. Rep. N. S. 390.) And in an action against a commercial agency for libel, the answer set up that defendants and a firm in the same business were under a mutual contract to furnish each other with information concerning the commercial standing of business men ; that the alleged libelous words were telegraphed to said firm in confidence as a warning for the purposes of their business only, and for the purpose of eliciting from said firm correct information concerning plaintiffs for de- fendants' own use. Held such defense was neither irrelevant nor redundant, at least it was mitigating matter. (Jeffras v. McKillop & Sprague Co. 4 Sup. Ct. Rep. [T. & C] 578 ; 9 Sup. Ct. Rep. [2 Hun], 351.) Where defendant in his plea set forth in hcec verba two declarations in two other actions by the then plaintiff, the court ordered them to be struck out as an "oppressive incumbrance" on the record. (Spencer v. Tabele, 9 Cow. 130.) '^ In Indiana, it is optional with the defendant whether he will set up mitigating circumstances in his answer or not. (See O'Conner v. O'Conner, 27 Ind. 69.) * Newman v. Otto, 4 Sandf. 668 ; Fry v. Bennett, 5 Id. 54 ; Matthews v. Beach, Id. 256; Meyer v. Schultz, 4 Id. 664 ; Stanley v. Webb, Id. 21. 6l8 PLEADING. [cm. XIV. § 362. As in other actions, the defendant may demur to the complaint ; but Lord Coke said, it was "an excel- lent point of learning in actions for slander " not to demur, but to take advantage of the declaration not disclosing a cause of action, either on the trial, or by motion in arrest of judgment/ It has been held that, though a count in slander contain some words which are actionable, and others which are not, the defendant can- not plead as to the former, and demur as to the residue, but must either plead or demur to the whole count. "" But, again, it has been held, that where a libel contains several distinct charges, the defendant may plead or de- mur to particular parts of it ; yet where several state- ments tend to one conclusion or imputation, it is not permissible to select and deal separately with one, either by plea or demurrer.^ A defendant cannot single out some of the words in a declaration and demur to them.'' If a count by husband and wife contains words action- able per se, as well as others spoken of the w^ife, the de- ' The great changes which, since Lord Coke's day, have taken place in the forms and mode of procedure, have deprived this rule of much of its value. If the words laid in the declaration are not actionable, the defendant must demur, or move in arrest of judgment. (Dorsey v. Whipps, 8 Gill, 457.) He cannot avail himself of the defect at the trial (Blunt v. Zuntz. Anthon, 180 ; Boyd v. Brent, 3 Brevard, 241) to nonsuit the plaintiff. (Lumby v. Allday, i Cr. & J. 301 ; i Tyrw. 217.) It seems to be othenvise in New York, where, on the trial, the defendant may insist that the complaint does not disclose a cause of action. It must be remembered that in New York the demurrer is general only, and that the special demurrer has been superseded by a motion to make definite and certain. In Mississippi and Virginia, no demurrer is allowed. ' Bronson, J., Root v. Woodruff, 6 Hill, 420, citing as to libel, Sterling v. Sher- wood, 20 Johns. 204 ; Riggs v. Denniston, 3 Johns. Gas. 198; and saying the same rule had been applied in actions for slander, though not reported; and see Taylor t/. Carr, 3 Up. Gan. Q. B. Rep. 306. It is conceded that the rule is otherwise in England, and Glarkson v. Lawson, 6 Bing. 587, is cited. Held that a defendant may demur to a part of the words laid in a count for slander. (Abrams z: Smith, 8 Blackf. 95 ; Wyant v. Smith, 5 Id. 294.) 2 Eaton V. Johns, i Dowl. Pr. Gas. N. S. 602 ; and see McGregor v. Gregor}-, 2 7 J. 769; II M. & W. 289. ^ Taylor v. Carr, 3 Up. Can. Q. B. Rep. 306. § 3^2 A.] COUNTER-CXAIM. 619 fendant cannot demur, but may, on the trial, object that the action for the latter words cannot be maintained by both/ In an action for libel, the answer contained (i) a denial of the publication, (2) a justification. The plaintiff demurred to the answer, specifying only objections to the matter of justification, and judgment was given for the plaintiff on the demurrer ; held that the denial remained on the record, and raised an issue of fact." Upon de- murrer to the complaint, if any of the words be action- able, there must be judgment for the plaintiff.^ A demurrer to the complaint does not admit the intent attributed by the innuendo.-^ § 362 a. There can be no counter-claim in an action of slander or libel.^ One libel cannot be set off against another,^ nor can damages occasioned by a libel form a counter-claim in an action for an assault.^ In New York, no replication is necessary unless to a counter-claim.^ In England, a general reply only is required. ^ Beach v. Ranney, 2 Hill, 309. '^ Matthews v. Beach, 8 N. Y. 173 ; but see Parrett Nav. Co. v. Stower, 8 DowL Pr. Gas. 405. ' Edde V. Waters, 4 Cr. C. C. 170 ; Butler v. Wood, 10 How. Pr. Rep. 222. * Wheeler v. Haynes, i Perr. & D. 55 ; contra. Smith v. Tribune Co. 4 Bissell, 477- •' Jellerman v. Dolna, 7 Abb. Pr. R. 395,;?^/^/ Richardson v. Northrup, 56 Barb. 105. '^ Seely v. Cole, Wright (Ohio), 681. In the Scotch Reports are to be found numerous instances of one set of words being set off against another. ' Macdougall v. Maguire, 35 Gal. 274. ^ Code of Pro. § 153 ; Stat. 6 & 7 Vict. ch. 96 ; Chadwick v. Herapath, 4 DowL & L. 653; 16 Law Jour. G. P. 104 ; Helsham v. Blackwood, 11 G. B. iii. CHAPTER XV. VARIANCE. AMENDMENT. Allegation of pleadings and proof should correspond — Variance in New York — General rules as to variance — hmnaterial variance — Material variance — Amend- ment. § 363. The general rule as to variance is, that the al- legations of the pleading and the proof must correspond, otherwise there as a variance, and the plaintiff fails ; ' but now, in New York, it is enacted by statute that " no variance between the allegation in a pleading and the proof shall be deemed material unless it have actually misled the adverse party to his prejudice," and when the variance is shown to be material, the court may order an amendment.' The following decisions upon variance are in cases not within the Code of New York. § 364. Ordinarily it is sufficient if the words proved correspond substantially with those alleged.^ But al- though any mere variation of the form of expression is not material, the words alleged cannot be proved by ' In actions of slander and libel the language charged must be proved as laid. (Birch V. Benton, 26 Mo. [5 Jones], 153; Horton v. Reavis, 2 Murph. 380.) A variance is fatal. (Stanfield v. Boyer, 6 Har. & J. 248 ; Winter v. Donovan, 8 Gill, 370; Harris v. Lawrence, i Tyler, 156.) It is not sufficient to prove the substance of the charge merely. (Rex v. Berry, 4 T. R. 217.) - Code of Pro. § 169. As to amendment of variance in Indiana (Proctor v. Owfens, iB Ind. 21.) ' Coghill 7'. Chandler, 33 Mo. 115 ; Smith v. Hollister, 3 Shaw (Vt.) 695 ; Taylor V. Moran, 4 Mete. (Ky.) 127 ; Williams v. Minor, 18 Conn. 464 ; Desmond v. Brown, 29 Iowa, 53 ; Bundy v. Hart, 46 Mo. 460. S 365.] VARIANCE. 621 showing that the defendant published the same meaning in different words/ even if equivalent and of similar im- port." A count for slanderous words spoken affirmatively is not supported by proof that they were spoken by way of interrogation.^ Proof of words spoken in the second person will not support counts for words spoken in the third person, and vice versa.' Proof of a positive asser- tion is not admitted under an allegation of a hypothetical assertion ; an allegation that the words were " he swore to a lie " is not supported by proof that the words were ''he swore to a lie if he swore as Jones said he did."^ § 365. The plaintiff need not prove all the words laid, 1 Smith V. Hollister, 3 Shaw (Vt.) 695. Within six months before suit brought, the defendant said concerning the words alleged to be actionable, but which were barred by the statute, " I never denied what I have said, and I will stand up to it." Held, that this was not a repetition of what he had previously said, and that an action could not be sustained thereon. (Fox v. Wilson, 3 Jones Law [N. Car.] 485.) 2 Wilborn v. Odell, 29 111. 456 ; Taylor v. Moran, 4 Mete. (Ky.) 127 ; Norton v. Gordon, 16 111. 38. It is not sufficient to prove words equivalent to those alleged. CMoore v. Bond, 4 Blackf. 458 ; Slocum v. Kuykendall, i Scam. 187; Olmsted v. Miller, I Wend. 506 ; Watson v. Musick, 2 Mo. 29 ; Armitage v. Dunster, 4 Doug. 291; McConnell v. McVenna, 10 Ir. L. R. 511 ; Campagnon v. Martin, 2 W. Black. 790.) Words to the same effect are not the same words. (Fox v. Vanderbeck, 5 Cow. 51.3.) 2 Barnes v. Holloway, 8 T. R. 150 ; Sanford v. Gaddis, 15 111. 228 ; King v. Whit- ley, 7 Jones Law (N. Car.) 529. If in an action of slander the words be proved to be spoken affirmatively as they are laid, the charge is supported, though it appear that they were spoken in answer to a question put by a third person. (Jones v. Chap- man, 5 Blackf. 88.) * Cock V. Weatherby, 5 Smedes & Marsh. 333; Miller v. Miller, 8 Johns. 74; Stannard v. Harper, 5 M. & Ry. 295; M'Connell v. McCoy. 7 S. & R. 223; Culbert- son V. Stanley, 6 Blackf. 67 ; Williams v. Harrison, 3 Mo. 411; Wolf v. Rodifer, I Har. & J. 409 ; Avarillo v. Rogers, Bull. N. P. 5 ; Rex v. Berry, 4 T. R. 217 ; Phillips V. Odell, 5 Up. Can. Q. B. Rep. O. S. 483 ; Sanford v. Gaddis, 15 111. 228 ; Ruther- ford V. Moore, I Cr. C. C. 388; Birch v. Simms, Id. 550. Evidence of the words, " You are a broken-down justice," does not support an indictment for speaking of the magistrate the words, " He is a broken-down justice." (4 T. R. 217; but see Cro. Eliz. 503.) Words proved to have been spoken in the second person sustain a count for slander in which the words are in the third person. (Daily v. Gaines, i Dana, 529; Huffman v. Shumate, 4 Bibb, 515.) » Evarts v. Smith, 19 Mich. 55 ; § 369, post. 40 622 PLEADING. • [CH. XV. but he must prove enough of them to sustain the action.' It is sufficient if the gravamen of the charge as laid is proved," and unless the additional words qualify the meaning of those proved so as to render the words proved not actionable, the proof is sufficient.^ It is necessary for the plaintiff to prove some of the words precisely as charged, but not all of them, if those proved are in themselves slanderous ; but he will not be per- mitted to prove the substance of them in lieu of the precise words. -* Where the whole of the words laid in any one count constitute the slanderous charge, the whole must be proved. But where there are distinct slanderous allegations in any count, proof of any of them is sufficient.5 Xhe plaintiff may prove more w^ords than are set forth in the complaint, provided the additional ' Fox V. Vanderbeck, 5 Cow. 513; Purple v. Horton, 13 Wend. 9 ; Nestle t/.Van Slyck, 2 Hill, 282 ; Skinner v. Grant, 12 Vt. 456; Scott v. McKinnish, 15 Ala. 662 p Hancock v. Stephens, 11 Humph. 507; Isley v. Lovejoy, 8 Blackf. 462; Sanford v. Gaddis, 15 111. 228 ; Whiting v. Smith, 13 Pick. 364; Loomis v. Swick, 3 Wend. 205 ; Wheeler v. Robb, i Blackf. 330 ; Chandler v. Holloway, 4 Port. 17 ; Berry v. Dry- den, 7 Mo. 324; Coghill V. Chandler, 33 Mo. 115; Geary v. Connop, Skin. 333 ^ Remington v. Meeks, 46 Mo. 217. '■' Hersh v. Ringwalt, 3 Yeates, 508; Wilson v. Natrons, 5 Yerg. 2II ; Cheadle v, Buell, 6 Ham. 67 ; Pursell v. Archer, Peck (Tenn.) 317 ; Miller v. Miller, 8 Johns. 74 ; Cooper V. Marlow, 3 Mo. 188 ; Barr v. Gaines, 3 Dana, 258 ; McClintock v. Crick, 4 Iowa, 453 ; Baldwin v. Soule, 6 Gray, 321 ; Scott v. McKinnish, 15 Ala. 662 ; Bas- sett V. Spofford, 11 N. Hamp. 127; Merrill v. Peaslee, 17 N. Hamp. 540. 3 Sanford v. Gaddis. 15 111. 228 ; Merrill v. Peaslee, 17 N. Hamp. 540 ; Smart v. Blanchard, 42 N. Hamp. 137. The plaintiff need not prove all the words set forth in the declaration, provided he proves enough to sustain his cause of action, and the words proved do not differ in sense from those alleged. (Nichols v. Hayes, 13 Conn. 155 ; Nestle v. Van Slyck, 2 Hill, 282 ; McKee v. Ingalls, 4 Scam. 30 ; Scott v. Ren- forth, Wright, 55.) •* Easley v. Moss, 9 Ala. 266; Morgan v. Livingston, 2 Rich. 573; Creelman v^ Marks, 7 Blackf. 281; Patterson v. Edwards, 2 Gilman, 720. Although the libel read in evidence contained matter in addition to that set out in the declaration, there is no variance if the additional part do not alter the sense of that which is set out. (M'Coombs v. Tuttle, 5 Blackf. 431 ; Cooper v. Marlow, 3 Mo. 188 ; Ruther- ford V. Evans, 6 Bing. 451 ; 4 Car. & P. 74.) Thus, in Tabart v. Tipper, i Camp. 350, the rhymes (see ante, note 3, p. 490) were set out in the declaration without the line in Latin which followed them; it was held the omission was immaterial. 5 Flower v. Pedley, 2 Esp. 491. § 3^6.] VARIANCE. 62 J words do not change the meaning of those set forth/ and words spoken at different times may be given in evidence on one count/ § 366. An action for slanderous words imputing to the plaintiff misconduct as a constable is not sustained by proving words imputing misconduct to him, as an agent of the executive of one State, for the arrest, in another State, of a fugitive from justice/ Where the words were alleged to have been spoken of and concerning the plaintiff as treasurer and collector of certain tolls, and the innuendo corresponding thereto, and the proof was only of his being treasurer, and he failed in making out his: appointment to be collector ; held, that for want of such proof he was properly nonsuited/ For words spoken of a physician, alleging that he was not entitled to practice as such ; held, first that the plaintiff was bound to prove not only that he practiced as a physician, but that he prac- ticed laivfully.^ In an action for these words spoken by defendant of the plaintiff in his profession as a phy- sician : " Dr. S. has upset all we have done, and die he (the patient) must," it was proved that the plaintiff had practiced several years as a physician, and having been called in during the absence of a physician who with the defendant attended the patient, the defend- 1 Wilborn v. Odell, 29 III. 456. In Bourke v. Warren (2 C. & P. 307), a letter was set out as inducement alleged to contain "the words and matters follow- ing;" when the letter was read it was found to contain all that was stated in the declaration and something more ; held not a material variance — of course the some, thing more did not qualify what went before. (And see Morrow v. McGaver, i Ir. L. R. N. S. 579.) In Grotty v. Morrissey (40 111. 477), held no variance between " he stole $200 from me," and "he stole $200 from me when I was drunk," but that there was a variance between " he stole part of the money he collected in the Cath- olic church," and "he stole part of the money he collected in the Catholic church in Seneca." ' Charlter v. Barret, Peake Cas. 32. '' Kinney v. Nash, 3 N. Y. 177. ^ Sellers v. Till, 4 B. & Cr. 655 ; Sellers v. Killew, 7 D. & Ry. 121. ^ Collins V. Carnegie, 3 Nev. & M. 703; i Ad. & El. 695. 624 PLEADING. [CH. XV. ant, as apothecary, made up the medicines prescribed by the plaintiff for the patient in question. Qucsre^ whether, on this declaration, it was necessary for the plaintiff to produce a diploma, or other direct evidence that he had taken a degree in physic, in order to main- tain the action.' Where the declaration alleged the plaintiff to be an attorney, and that the words were spoken of him in his professional character, the words being actionable without any reference to such charac- ter ; held, that mere proof of his having been admitted, without showing that he had practiced or had taken out his certificate, was not a fatal variance.- § 367. The following have been held to be immate- rial variances: the date of publication;^ a difference in the tense of the words, as liad for has ;* the transposi- tion of the names of the parties to the suit, as a witness in which the plaintiff was charged with having sworn falsely ; ^ alleging that the offense was committed on Sat- urday instead of Sunday ; ^ a discrepancy in the title of a paper ; ^ where it was alleged that the publication was in the presence of B., held not necessary to prove such allegation.^ On an allegation that the defendant charged ' Smith V. Taylor, i N. R. 196. In an action by an apothecary, what is suffi- cient proof of his qualifications as such. (Wogan v. Somerville, i Moore, 102 ; 7 Taunt. 401.) "^ Lewis V. Walter, 3 B. & Cr. 138 ; 4 D. & R. 810. =* Thrall v. Smiley, 9 Cal. 529 ; Gates v. Bowker, 18 Vt. (3 Washb.) 23 ; Com- monwealth 7'. Varney, 10 Cush. 402 ; Potter v. Thompson, 22 Barb. 89. * Wilborn v. Odell, 29 111. 456. ^ Teague v. Williams, 7 Ala. S44. In an action of slander, the plaintitT alleged that the slanderous words were spoken relative to testimony of the plaintiff in a suit in which S. was plaintiff and H. defendant. Held, that evidence aliunde was admis- sible to show that the record of an action by S. and W. against H. was the action referred to in the declaration, and that there was no variance. (Hibler v. Servoss, 6 Mo. 24.) ^ Sharpe v. Stephenson, 12 Ired. 348. ' The State v. Jeandell, 5 Harring. 475. " Goodrich v. Warner, 21 Conn. 432. But where the allegation was a speaking in the hearing of "divers citizens," and the proof was of a speaking in the hearing 367.] VARIANCE. 625 the plaintiff with perjury in a suit of A. and B. v. C. and D., the variance is not fatal if it be shown that the charge was made in reference to the case of a cross-bill, by one of the defendants in such case, against the complainant and co-defendants.' And where the declaration on a libel stated that certain prosecutions had been preferred against M., and that, ''in furtherance of such proceed- ings," certain sums of the parish funds had been appro- priated to discharge the expenses ; but the libel charged the money to have been so applied after the proceedings had terminated : held, that it being immaterial to the defamatory character of the libel when the money was so applied, the variance was immaterial.^ So a slight vari- ance in the names of the defendants in the indictment, as set forth in the declaration and contained in the record, may be cured by parol proof of the identity of the per- sons.3 Where the words charged in one count were - He is a thief," and in another, " He is a thief, and stole the hay and hay-seed from D.'s barn," and the proof was that the defendant said, at one time, that he was ''a thief, and stole the hay-seed out of the barn," and at another that he had "stolen hay and hay-seed that had belonged to D.," it was held that the words charged were suffi- ciently proved.^ of one person, and he not a citizen, it was held a fatal variance. (Chapin v. White, 102 Mass. 139.) 1 Wiley V. Campbell, 5 T. B. Monr. 560. A charge of false swearing, in a pro- ceeding between A. & B., held sustained by proof of a proceeding between A. & B. and wife. (Dowd v. Winters, 20 Mo. [5 Bennett], 361.) 5 May V. Brown, 3 B. & Cr. 113 ; 4 K. & R. 670. It is a general rule that the variance between the allegation and the proof will defeat a party, unless it be in respect of matter which, if pleaded, would be material. {Id.) Where the words are actionable without the inducement, the insertion of what is not material and not proved does not occasion a variance of which advantage can be taken. (Cox v. Thomason, 2 Cr. & J. 361 ; 2 Tyrw. 411.) 8 Hamilton v. Langley, i McMullan, 498. •* Williams v. Miner, 18 Conn. 464. 626 PLEADING. [CH. XV. § 368. The following are additional instances of im- material variance : ALLEGATION. He stole hogs. The girl that hired with us. A. committed forgery. We supposed that they had become aware of the fact. He stole my staves and nails. She has had a bastard child. A. has had a baby. He is a strong thief. PROOF. He stole a hog.' The girl that lived with us.' A. and B. committed forge r)^^ We supposed that they had by this time become aware of the fact.'' He is a damned rogue, for he stole my staves and nails, and I can prove it.^ If I have not been mis- informed, she had a bas- tard child.^ We hear bad reports about some of your girls ; A. has had a baby.^ He is a thief ^ ' Barr v. Gains, 3 Dana, 258. '^ Robinett v. Ruby, 13 Md. 94. •^ Nichols V. Hayes, 13 Conn. 155. But words spoken of a husband or of a wife will not support an allegation of words spoken of both of them. (Davis v. Sherron, I Cr. C. C. 287.) * Smiley v. McDougal, 10 Up. Can. Q. B. Rep. 113. * Pasley v. Kemp, 22 Mo. (i Jones), 409. * Treat z/. Browning, 4 Conn. 408. The words alleged were " Plaintiff was in the family way, and R. took her to Chicago to have the child worked off." The proof that defendant said " Plaintiff was in the family way by Tom. Bell," not a ma- terial variance. (Baker v. Young, 44 111. 42.) ' Robbins v. Fletcher, loi Mass. 115. * Burgis's Case, Dyer, 75. 368.] IMMATERIAL VARIANCE. 627 ALLEGATION. He has been working for me some time, and has been robbing me all the while. You are perjured. Mr. K.'s wife is a whore. You stole o?ie of my sheep. Riot. Poppenheim is a very bad man ; he is a calf-thief, and the records of the court will prove it. Your (plaintiff's) house is a bawdy-house, and no respectable person will live in it. Ware Hawk, you must take care of yourself there, mind what you are about. PROOF. He has worked for me some time, and has been continually robbing me.' Are you not afraid, as you have perjured your- self?^ She (Mr. K.'s wife) is a whorish bitch.^ You stole my sheep and killed it.^ Riot and assault. ^ Poppenheim is a very bad man ; he is a calf-thief; he has been indicted for calf-stealing, and the rec- ords of the court will prove it.^ You (plaintiff's wife) are a nuisance to live beside of. You are a bawd, and your house no better than a bawdy-house.^ Ware Hawk, you must take care of yourself there.^ 1 Dancaster v. Hewson, 2 Man. & Ry. 176- 5 Commons v. Walters, i Port. 377. ^ Scott V. McKinnish, 15 Ala. 662. * Robinson z/. Wallis, 2 Stark. Rep. 194; the word it showing that only one ■sheep was meant. < 5 Hamilton v. Langley, i McMullan, 498. ' Poppenheim v. Wilkes, I Strobh. 275. ' Huckle V. Reynolds, 7 C. B. N. S. 114. « Orpwood V. Barkes, 4 Bing. 261 ; s. c. Orpwood v. Parkes, 12 Moore, 492. 628 PLEADING. [CH, XV. § 369. It was held a material variance where the dec- laration alleged that the defendant charged the plaintiff with a crime, and the proof disclosed merely that defend- ant said he supposed the plaintiff to be guilty of such crime/ Where the declaration charged the defendant with speaking slanderous words, and the proof was that he procured another to speak them ; " where the declara- tion charged the defendant with speaking defamatory words, and the proof was that defendant signed a written complaint charging the plaintiff with larceny ; 3 where the declaration charged the defendant with saying that plaint- iff, a single woman, had had a child, and the proof was that defendant said, in his opinion plaintiff was pregnant with child/ An allegation of slander as to the cleanli- ness of the person of plaintiff (a cook), as of the de- fendant's actual knowledge, held, not supported by proof of words as to the defendant's belief or understanding only.5 An allegation that words were spoken concern- ing three plaintiffs (partners) in their joint trade, is not supported by proof that the words were addressed to one of the plaintiffs personally.*^ Where the words set forth, in their ordinary sense, import a charge of crime, if they are proved to have been so spoken in connection with ' Dickey v. Andros, 32 Vt. (3 Shaw), 55. Where, in case for a malicious prose- cution, the declaration alleged that an express charge of felony was made against plaintiff, but it appeared that the defendant had only deposed to a suspicion that he had committed it, held no variance, it being the only meaning which could be im- puted to the accusation. (Davis v. Noake, 6 Maule & S. 29.) - Watts V. Greenlee, i Dev. 210. 2 Hill V. Miles, 9 N. Hamp. 9. * Payson v. Macomber, 3 Allen (Mass.) 69. A count in slander, alleging that the defendant charged upon the plaintiff an act of fornication, witnessed by a par- ticular person, is not sustained by proof of words charging an act of fornication wit- nessed by another person, or by proof of words implying a charge of habitual forni- cation and lewdness with the person named in ihe declaration. [Id.) ' Cook V. Stokes, i M. & Rob. 237. « Solomons v. Medex, i Stark. Rep. 191 ; and see Davis v. Sherron, i Cr. C. C. 287. § 369.] MATERIAL VARIANCE. 629 Other words as to rebut the idea of criminality, there is a a fatal variance ;'. and where an innuendo gives a specific meaning to the language published, that meaning must be proved, or there will be a variance.^ Where the declara- tion in an action of slander alleges that the words spoken were in reference to an oath taken by plaintiff before the register and receiver of a land office, touching the entry of land, proof of an oath taken before a notary pub- lic concerning the same subject-matter, does not support the allegation ; ^ and where the declaration for maliciously charging the plaintiff with felony stated that the defend- ant went before R. C. Baron Waterpark, of Water/or k, in the county of, &c., and the proof was that his title was Baron Waterpark, of Waterpark, &c. ; held a fatal vari- ance/ Where the libel given in evidence contained two references (showing it to be the language of a third per- son respecting the plaintiff), and which were omitted m the libel set forth in the declaration ; held, that the meaning of the paragraphs being different, the variance was fatal.5 An action upon a libel charging in one count that the defendant published it as purporting to be a letter from A. to B., and in another charging generally that the defendant published the libelous matter ; held not to be sustained by proof of a publication wherein the defend- ant stated that in a debate in the Irish House of Com- mons several years before, the attorney general of Ireland ' Edgerly v. Swain, 32 N. Hamp. 478. '•' Williams v. Stott, i Cr. & M. 675; 3 Tyrw. 668; ante, % 338. In a declaration for slander the words charged to have been published were, " You have murdered your little girl ;" innuendo the infant daughter of plaintiff. On the trial it appeared that the child was illegitimate, but that the plaintiff was in fact the father. It was objected that the innuendo implied a child born in wedlock, and that there was a variance. The objection was sustained, and the plaintiff was nonsuited. (Foote v. Rowley, 2 Law Rep. 138, in Appendix, post.) 3 Phillips V. Beene, 16 Ala. 720. * Walters v. Mace, 2 B. & Aid. 756; i Chit. 507. ' Tabart v. Tipper, i Camp. 353. 630 PLEADING. [CH. XV. had read such a letter, and then stating the libelous mat- ter as said by him in commenting uponthat letter; for it was said the characters of the several libels were essen- tially different, though the slander imputed might be the same.' Where the libel given in evidence was contained in a book published by the defendant respecting William Cobbett, entitled "The Book of Wonders," and was as follows : " Many well intentioned persons have expressed their surprise that the enlightener should have been will- ing to accept of a seat in corruption's den purchased with the bank notes of a man whose incapability and baseness he had so powerfully exposed. To convince such persons that such line of conduct was strictly pat- riotic, we have only to assure them that in so doing, he was walking in the footsteps of that venerable veteran whose creed is the criterion of excellence (see No. 195), and who, in an article of that creed, has laid it down as a maxim that we must, in fighting the enemy, not reject the use of even despicable and detestible men. Cobbett, V. 32, p. 82." The libel, as set forth in the declaration, omitted the words and figures, " see No. 195," and " Cob- bett, V. 32, p. 82." It was held a fatal variance ; for, upon reading the declaration, the libel would be under- stood to mean that the defendant had himself made the assertions respecting the plaintiff, but from the libel itself it appears that the paragraph was written with intent to expose the conduct, not of the plaintiff, but of another person.^ 1 Bell V. Byrne, 13 East, 554. ' Cartwright v. Wright, 5 B. & Aid. 615. Where the words alleged were, " My sarcastic friend by leaving out," &c., and the proof was, " My sarcastic friend Moras, by leaving out," &c., held a material variance (Tabart v. Tipper, i Camp. 350) ; leaving out the words " of" and "which," although they did not materially alter the sense, held a variance. (Cooke v. Smith, McClel. 250.) The words com- plained of were, Tell Gilpin I have prohibited Mr. Rainey (plaintiff) from practicing in my court, and the proof was that to these words were added, " until he apologizes for his conduct towards me on the bench," held a material variance. And it made § 37^-^ MATERIAL VARIANCE. 63 1 § 370. An indictment for a libel charged that the de- fendant set up, in public, a board on which a painting or picture of a human head, with a nail driven through the ear, and a pair of shears hung on a nail, and the proof was that a human head, showing a side face, with an ear, a nail driven through the ear, and a pair of shears hung on the nail, was inscribed or cut in the board by means of some instrument, but was not painted. Held, that there was a fatal variance between the allegation and the proof, and that the defendant must be acquitted.' In an action of slander, one of the counts charged the defend- ant with having made a voluntary affidavit, and caused certain false statements to be written therein, to wit : '' that there was a certain quantity of American soap, which, to his certain knowledge was sold at Curacoa (by the plaintiff), at six dollars, current money." The affi- davit, as offered in evidence by the plaintiff, stated the same words, except that the words "per box" were added after the words " six dollars." Held, that the va- riance was fatal. ' The averment was that A., before a magistrate, maliciously charged B. with felony ; the in- formation contained a mere charge of tortious conver- sion, upon which a warrant for felony was improperly founded. The variance was held fatal.^ If a declaration count upon a charge of perjury upon a particular occa- no difference that the words as qualified were still actionable. (Rainey v. Bravo, 20 Weekly Rep. [London], 873.) ' The State v. Powers, 12 Ired. 5. 2 Wilson V. Mitchell, 3 Har. & J. 91. 3 Tempest v. Chambers, i Stark. Rep. 67. In slander the allegation was, He burnt Knox's barn. The proof was that defendant added, Because one of the girls would not marry him. It was doubted if a variance. Where the inducement was of a conversation of Mr. Knox's barn which had been burnt, and that defendant said of plaintiff and of said barn. He burnt Knox's barn ; proof that defendant spoke the words. He burnt Knox's barn, without proof of the colloquium respecting the burn- ing of Mr. Knox's bam, was held insufficient. (Manly v. Cory, 3 Up. Can. Q. B. R. 380.) 632 PLEADING. [cii. X^ sion, proof of a general charge of perjury is inadmissible to sustain iV § 371. The following are additional instances of ma- terial variance : ALLEGATION. Whore. That the plaintiff, who was postmaster at F., em- bezzled certain papers. L. is pregnant and gone with child seven months. Dr. F. is not a physician, but a twopenny bleeder. He burnt my barn, innu- endo feloniously burnt. He stole wheat last win- ter. rROOF. Strumpet.^ Defendant had no doubt the papers were embezzled at F., or he thought the pa- pers were embezzled at F.^ Have you heard anything about L.'s being pregnant by Dr. P.- If Dr. F. is a twopenny physician, I am none. I am a regular graduate, and no quack. 5 There is the man that burnt my bam ; if he was not guilty of it, he would not carry pistols.^ He, defendant, said he, plaintiff, stole away the wheat in the night, and I was well aware of it, and would have put him in jail for doing it.^ ' Emery v. Miller, i Denio, 208. ^ Williams v. Brj'ant, 4 Ala. 44; contra, see Cook v. Wingfield, i Stra. 555 ; ante, note I, p. 249. A charge of being " a whore and a common prostitute," is not sup- ported by proof of words amounting to a general charge of unchastity. (Doherty v. Brown, 10 Gray [Mass.] 250.) ^ Taylor v. Kneeland, i Doug. 67. * Long V. Fleming, 2 Miles, 104. ' Foster v. Small, 3 Whart. 138. * Van Keurin v. Griffis, 2 Up. Can. Q. B. Rep. 423. " McNaught V. Allen, 8 Up. Can. Q. B. Rep. 304. §371.] MATERIAL VARIANCE. ^33 ALLEGATION. That persons who would otherwise have retained and employed the plaintiff, wholly declined and re- fused so to do. You swore false. She is a great thief That plaintiff then had three or four vessels in the river. . This is my umbrella. He stole it from my back- door. Stolen. You robbed the mail. Plaintiff had sworn a lie, and it is in him, for he had sworn what he, defendant, could prove to be a point- blank lie. PROOF. That other persons would have recommended the plaintiff, and that the per- sons named in the declara- tion would have employed plaintiff on such recom- mendation.' You have sworn false.^ She is a bad one.^ That plaintiff had given out that there were three or four vessels in the river.* It is my umbrella. He stole it from my back- door. ^ TaJ^en out of my yard.^ I am not like you, run- ning about the country with forged deeds and robbing the mail, as you did.^ Plaintiff had sworn off a just account, and that he, defendant, could or would prove it.* 1 Sterry v. Foreman, 2 Car. & P. 592- « Sanford v. Gaddis, 15 HI- 228. 3 Hancock v. Winter, 2 C. Marshall, 502. * Wood V. Adams, 6 Bing. 481 ; 4 C- & P. 268. 5 Walters v. Mace, 2 B. & Aid. 756; i Chit. 507. The allegation concerned a thing present, and the proof a thing not present. « Shepherd v. Bliss, 2 Stark. Rep. 510. ' McBean v. Williams, 5 Up. Can. Q. B. Rep. O. S. 689. 8 Berry v. Dryden, 7 Mo. 324. 634 AMENDMENT. [CH. XV. ALLEGATION. You would steal, and vou will steal. I, defendant, was sum- moned as a grand juror at last court, but I got the court to excuse me from serving, for if I had served I would have been bound to have indicted W. for theft. Mismanagement or ig- norance. There was a collusion between A., B., and C. You stole a dollar from A. Venereal disease. PROOF. A man that would do that would steal.' If I, defendant, had served on the grand jury, I would have been bound to have indicted Mr. Street, the plaintiff.^ Ignorance or inatten- tion.3 There was a collusion between A. and B." You stole a dollar from B.5 Disgraceful disease.^ § 372. In New York, under the Code of Procedure, great latitude of amendment is allowed ; besides the ' Sties V. Kemble, 27 Penn. St. Rep. 112. ^ Street v. Bushnell, 24 Mo. (3 Jones), 328. * Brooks V. Blanchard, I Cr. & M. 779 ; 3 Tyrw. 844. * Johnson v. Tait, 6 Binn. 121. * Self V. Gardner, 15 Mo. 480. * Wagaman v. Byers, 17 Md. 183. These following are adjudged material vari- ances : If the declaration be for these words, " Thou procuredst eight or ten of thy neighbors to perjure themselves," and the jury find that he said. Thou hast caused eight or ten, &c., for it might be a remote cause, scilicit, without procurement. Nar. (the declaration). He is a bankrupt. Verdict, He will be a bankrupt within two days. Nar. He is a thief. Verdict, He stole a horse. Nar. Thou art a murderer. Verdict, He is, &c. Nar. / know him to be a thief. Verdict, / think him to be a thief. And at p. 330 : Nar. Strong thief. Verdict, Thief. Nar. I say, &c. Ver- dict, I affirm or I doubt not. Nar. The plaintiff will do such a thing. Verdict, I think in my conscience he will do such a thing, (i Trials per Pais, 329.) § 372.] AMENDMENT. 635 rio-ht to amend once of course, the court may order an amendment before or upon the trial, or at any time thereafter/ Prior to the Code of Procedure, a plaintiff was allowed to amend inducement after issue, where otherwise the right of action would have been barred by the statute of limitations.' Plaintiff allowed to insert additional words, but not a new cause of action.^ Plaintiff allowed to insert a newly discovered cause of action. -> Defendant permitted to add an additional justi- fication.5 Amendments, too, seem to be allowed with great liberality in the courts in England ; thus another count was allowed to be added after a rule for a new trial.^ On the trial the words charged were allowed to be amended, the substance of the allegation remaining the same.7 Plaintiff allowed to amend by alleging that the words were spoken of him in his character of auc- tioneer.^ Leave to plead a justification, after verdict, denied.^ Where the declaration alleged the publication ' Code of Procedure, §§ 169, 172, 173. 2 Tobias v. Harland, i Wend. 93. Leave to add a new count granted (Conroe V. Conroe, 47 Penn. St. R. 198), but denied after right of action had been barred by statute of limitations. (Smith v. Smith, 45 Penn. St. Rep. 403.) An amendment is as of the commencement of the action. (Horton v. Banner, 6 Ky. [Bush], 596.) 3 Weston V. Worden, 19 Wend. 647. Plaintiff permitted on the trial to add a new cause of action. (Miles v. Van Horn, 17 Ind. 245.) Plaintiff not permitted to amend on trial by changing the action from libel to malicious prosecution. (Larkin V. Noonan, 19 Wis. 82.) ^ Williams v. Cooper, i Hill, 637. Leave to add a justification refused. (Waters V. Guthrie, 2 Bailey, 106.) ^ Graham v. Woodhull, I Gaines R. 497. Defendant on trial allowed to strike out general issue and plead a justification. (Anon, i Hill [So. Car.] 251.) * Wyatt V. Cocks, 10 Moore, 504 ; and see Clarke v. Albert, i Gale, 358. The statutes as to amendments to be liberally construed. (Smith v. Knowelden, 9 Dowl. 40.) ^ Pater v. Baker, 3 C. B. 831 ; Foster v. Pointer, 9 Car. & P. 718 ; Saunders v. Bates, I Hurl. & N. 402 ; and see Lister v. McNeal, 12 Ind. 302. ^ Ramsdale v. Greenacre, i Fost. & F. 61. « Kirby v. Simpson, 3 Dowl. Pr. Cas. 791. Leave to add a plea of the statute of limitations refused. (Allensworlh v. Coleman, 5 Dana, 315.) But granted. (Brick- 636 AMENDMKNT. [CH. XV. of a libel co7itained in a7id being an article in a cer- tain weekly printed paper called The Paul Pry, it was proved on the trial that the defendant gave to several persons to read a printed slip of paper containing the alleged libel, but it did not satisfactorily appear that such slip had been cut from The Paul Pry, the plaintiff was allowed to amend the record, without terms, by striking out the words in italics, and this course was approved by the court in banc/ Where the words charged were, " S. is to be tried at the Old Bailey for," &c., and the proof was, " I have heard that S. is to be tried at the Old Bailey for," &c., the plaintifT had leave to amend on payment of costs.^ Where the words alleged were, "there have been many inquests held upon persons who have died because he attended them," and the proof was " Several have died that he (plaintiff) has attended, and inquests have been held on them," an amendment was allowed and approved in banc.^ The court refused an amendment where it was of opinion that the words as proved did not impute an actionable charge,'* and the court refused, on the trial, at the instance of the plaintiff, to strike out superfluous averments and innuendoes, which appeared to have been introduced to create a prejudice against the defendant,' ett V. Davis, 21 Pick. 404.) Where the defense was that the words com- plained against were parts of two articles, which articles were fair comments, on de- murrer the court held the plea defective, but permitted the defendant to amend by substituting words for articles, so as to read, which words were fair comments. (Morrow v. McGaver, i Ir. C. L. R. N. S. 579.) ' Foster v. Pointer, 9 C. & P. 718, 722. - Smith V. Knowelden, 2 M. & Gr. 561. * Southee v. Denny, i Ex. 196. * Camfield v. Bird, 3 C. & K. 56. An amendment will not be allowed, if the effect of it be to afford reasonable ground for demurrer. (Martyn v. Williams, i Hurl. & N. 817 ; Caulfield v. Whitworth, 18 Law Times, N. S. 527.) 5 Prudhomme v. Eraser, i M. & Rob. 435. Amendment allowed (Pater v. Baker, 3 C. B. 831 ; and see Huckle v. Reynolds, 7 C. B. N. S. 114; Saunders v. Bate, i § 37^- i AMENDMENT. 637 and the application was not made until after the libel was read to the jury. Hurl. & N. 402 ; Ramsdale v. Greenacre, i Post. & F. 61). Where the words alleged were " he was not sober," and the words proved were, he was " as'drunk as a sow," and the latter words were relied on as evidence of malice, and as taking away the privilege of the occasion on which the words were spoken, the amendment was denied. (Sutton v. Plumridge, 16 Law Times, N. S. 741.) And where the words as laid in the declaration imputed a direct charge of felony, and the proof was that the words were to the effect tha.t a re/> or f wzs in circulation that plaintiff had committed a felony, it was held to be a material variance, and leave to amend was refused. (Pearse v. Rogers, 2 Fost. & F. 137.) 41 CHAPTER XVI. EVIDENCE FOR PLAINTIFF. Proof of publication ; of oral publication ; of publica- tion in wi'iting ; of defendant's liability — Opinion of zuitnesses as to 7ncaning — Proof of inducement ; of plaintiff's good reputation ; of malice ; to aggravate damages — Falsehood not evidence of malice — Other publications by defendant ; subsequent publicatioJis ; publication after commencement of action — Defend- anfs ill-zvill to plaintiff— Ill-will to plaintiff of per- sons other than the defendant — The publication it- self evide7ice of malice — Attempted justification an aggravation — Evidence in reply. % ^-iZ- If the publication is denied, a publication must be proved, and the publication proved must be one for which the defendant is responsible.' On this subject, 1 Where the general issue, as well as special pleas admitting the publication are pleaded, the plaintiff is bound to prove the publication in the same manner as if there were no special plea. (Ricket v. Stanley, 6 Blackf. 169; Wheeler v. Robb, i Blackf. 330; Wright v. Lindsay, 20 Ala 428; Whitaker v. Freeman, i Dev. 271 ; Doss V. Jones, 5 How. [Miss.] 158; Cheadle v. Buel, 6 Ham. 67 ; Vasseur v. Liv- ingston, 13 N. Y. 256 ; Ayres v. Covell, 18 Barb. 264 ; contra, Jackson v. Stetson, 15 Mass. 48 ; Alderman v. French, I Pick, i.) These last two decisions led to the passage of a statute in Massachusetts (act of 1S26, ch. 107), by which it is enacted that in all actions for libel and slander wherein the defendant may plead the general issue and a justification that the words written or spoken are true, the plea in justi- fication shall not be taken as evidence that the defendant wrote or spoke such words or made such charge, nor shall, in case the defendant fail to establish it, be of itself proof of malice, but the jur>' shall decide upon the whole case, whether the plea was made with malicious intent. This statute, in Hix v. Drury (5 Pick. 303), was called " a great departure from the common law of England and of this (Massachusetts) Commonwealth." The fact is that the case of Jackson v. Stetson is opposed to all principle and precedent. (See a note to that case in the edition of Massachusetts § 374-] PROOF OF PUBLICATION. 639 much has ah-eady been said in a previous chapter (Ch. VI). Whether there has been any pubHcation by the de- fendant is a question of fact for the jury, but what amounts to a pubHcation for which the defendant is re- sponsible as publisher is a question of law for the court. If the facts were, that the defendant had posted up a libel in a public place, but had taken it down again before any one had read it, there would in point of law be no publi- cation, but if it were doubtful whether before it was taken down some one had not read it, that would be a question of fact for the jury.' § 374. The post-mark on a letter has been held prima facie evidence of the publication of the letter.'' The pro- duction by the plaintiff on the trial of a letter addressed to a third person, held evidence of the publication of the letter, without the oath of the person to whom the letter is addressed.^ Where the letter produced was addressed Reports, with notes by Benjamin Rand, Boston, A. D. 1S58.) If a newspaper pub- lisher, on request, refuses to give up the name of the author of an alleged libel pub- lished in his paper, he takes the place of such author, and is not entitled to any privilege or excuse founded on sympathy for the publisher. (Hibbins v. Lee, 11 Law Times, N. S. 541 ; 4 Fost. & F. 243.) ' Stark. Ev. tit. Law and Fact. Where an alleged libel is placed where it might be seen and read, it is unnecessary to prove it was seen and read. (Giles v. The State, 6 Ga. 276.) In those States in which a party may be witness in his own be- half, the plaintiff may prove the speaking by the defendant of the words complained against, although other persons than the plaintiff and defendant were present at the time. (Hess v. Fockler, 25 Iowa, 9.) Defendant's admission that she supposed she had repeated the story, equivalent to an admission of publication. (Burt v. Mc- Bain, 29 Mich. 260 ; see Kine v. Sewell, 3 M. & W. 397.) Plaintiff cannot prove the publication by showing that defendant as a witness in another case had admitted speaking the words complained of. (Osborne v. Forshee, Sup. to 2 Mich. N. P. Rep. 43; see The State -j. Riggs, 36 Conn. 498; see post, note to § 381.) Where the only witness to prove an oral publication was a German, the court refused to dis- turb a verdict for the plaintiff on the ground that it was not shown but that the words were spoken in English, which language the witness did not understand. (Hurtert V. Weines, 27 Mich. 134.) « Shipley v. Todhunter, 7 C. & P. 6S0 ; Hitchon v. Best, i B. & B. 299; Rex v. Watson, I Camp. 215 ; Rex v. Johnson, 7 East, 65 ; Fletcher v. Braddyll, 3 Stark. Cas. 64 ; Rex v. Williams, 2 Camp. 505 ; Rex v. Girdwood, East P. C. 11 16. ^ Callan v. Gaylord, 3 Watts, 321. A post-mark does not prove itself; how proved see Abbey z/. Lill, 5 Bing. 299 ; Woodcock v. Houldsworth, 16 M. & W. 124. 640 EVIDENCE FOR PLAINTIFF. [CH. XVI. to a person in Scotland, with the seal broken and a post- mark of a place in England, where it was proved to have been received and forwarded, held prima facie evidence that the letter was received by the party to whom it was addressed, and of its publication.' Where the defama- tory matter was contained in a letter addressed by the defendant to the plaintiff, and there was no evidence of its publication, other than the production of the letter by the plaintiff, it was held not sufficient ;' but where, in addition, it was shown that the letter was in the hand- writing of the defendant, and that he had read it aloud in the presence of several persons, it was held that the letter might be read to the jury.^ The defendant had been chairman of a public meeting, at which the libel in ques- tion had been signed by him, and ordered by the meeting to be published ; on a demurrer to evidence, an affidavit of the defendant, and one of A., which the defendant in his own affidavit referred to as correct, stating that the address was ordered to be published, and admitting and justifying the publication, together with a copy of the address annexed to the affidavits, and referred to in them, were held sufficient evidence of publication.'^ ^ 375. Where a witness who heard the words spoken immediately committed them to writing, he may, on swearing that he wrote down the exact words, read what he wrote in evidence. If the words were not written down until some time after the witness heard them, although he may not read his memorandum in evidence, 1 Warren r. Warren, i Cr. M. & R. 250 ; 4 Tyrw. 850 ; Stocken v. Collen, 7 M. &w. 515- ''■ Mcintosh V. Matherly, 9 B. Monr. iig. » McCoombs %>. Tuttle, 5 Blackf. 431 ; see note 2, p. 150, ante. Evidence of the reading the libel in a public place, and of comments upon it in defendant's hearing, and that it was put up on handbills by persons unknown, was permitted to be proved. (Rice V. Withers, 9 Wend. 138.) * Lewis V. Few, 5 Johns, i. § 37^-} PROOF OF PUBLICATION. 64I he may, to refresh his memory, refer to his original mem- orandum,^ but not to a copy of it.^ In actions of slan- der, witnesses cannot be allowed to state the impression the words used made upon their minds, but they must state positively, or as near as memory will allow, the exact words. 3 § 376. In an action of libel against the proprietor of a newspaper, a copy of the paper bought at the office, if alleging on its face that it was the property of the de- fendant, is sufficiently connected with defendant by proof, and a paragraph in it is relevant to read to the jury to show the circulation of the paper.^ On a declaration in slander, consisting of a single count, in which the slanderous words were alleged to have been uttered by the defendant "on the ist day of November, 1856, and on divers other days and times before the purchase of the plaintiff's writ," it was held, that the plaintiff might, in support of his action, prove a single uttering of the slander by the defendant on any day prior to the date of the writ.5 A declaration alleged that the defendants published, or caused to be published, in a certain pamphlet, a libel concerning the plaintiff. From the evidence, it appeared that the defendants were instru- mental in procuring the vote of a medical society ex- ' Sandvvell v. Sandwell, Holt R. 295 ; Huff v. Bennett, 6 N. Y. 337. - Burton v. Plummer, 2 Adol. & El. 343. 3 Teague z'. Williams, 7 Ala. 844 ; Alley z: Neely, 5 Blackf. 200; contra, Hawks ». Patten, 18 Ga. 52. Where, in an action for slander, it is important to show that the charge proved by a witness for the plaintiff had reference to a trial, it is not in- dispensable for the witness to give the exact words of the defendant showing such reference ; but if this is desired, they should be elicited on cross-examination (Douge V. Pearce, 13 Ala. 127.) " Fry V. Bennett, 4 Duer, 247 ; see The State v. Jeandell, 5 Harring. 475, and Reg. V. Stanger, Law Rep. 6 Q. B. 352.) ' Rice z/. Cottrell, 5 R. I. 340; Norris z^. Elliott, 39 Cal. 72 ; and as to proving time of publication, see Richardson v. Roberts, 23 Ga. 215 ; Wright z/. Britton, i Morris, 2S6 ; and § 109, anie. 642 EVIDENCE FOR PLAINTIFF. [CH. XVI. pelling the plaintiff therefrom for gross immorality. The vote was published among the transactions of the society, by the regular committee of pubhcation, of which the defendants were not members. Held, that the allegation in the declaration was not supported.' That one had heard of a slanderous report with regar-d to the plaintiff, is evidence to prove the circulation of the report, but not to prove that the defendant circulated the report.' Where a declaration for publishing a libel does not purport to set it forth in hcsc verba, and a libel cor- responding with the declaration is produced on the trial, if the jury believed that the defendant published any part of the libelous matter, they must find for the plaintiff.' It is calculated to mislead the jury to refer it to them to determine whether the defendant " in substance " spoke or published the words charged, without explaining the meaning that the law would attach to that expression in connection with the proof of the slander charged.^ § 377. The words of a defamatory writing cannot be proved by parol, unless it has been shown that the writ- ing itself cannot be produced.^ But if after the publica- tion the defendant obtains possession of the writing and refuses to produce it, in that case secondary evidence of ' Barrows v. Carpenter, li Cush. 456. ^ Schwartz v. Thomas, 2 Wash. 167. 3 Metcalf V. Williams, 3 Litt. 387. * Attebury v. Powell, 29 Mo. (8 Jones), 429. * Simpson v. Wiley, 4 Porter, 215 ; Aspinwall v. Whitmore, i Root, 40S ; and see McGrath v. Cox, 3 Up. Can. Q. B. Rep. 332. The alleged libel must be read to the jury, and where the whole of the alleged libel is not set forth in the com- plaint, defendant has the right to have the whole read. (Cooke v. Hughes, i Ry. & M. 112.) And where the publication was in a newspaper, held that defendant might insist on having other parts of the same newspaper read as part of plaintiff's case. (Thornton v. Stephen, 2 M. & Rob. 45 ; Rex v. Lambert, 2 Camp. 398.) And jury may consider the whole publication for the purpose of fonning an opinion as to the meaning of the alleged libel. (Goodrich v. Davis, il Mete. 473 ; and see Rex V. Bear, Salk. 417 ; Rex v. Dean of St. Asaph, 3 T. R. 428, note; Perry v. Breed, 117 Mass. 155.) § 377A-] PROOF OF PUBLICATION. 643 its contents may be given.' Where, to prove the defend- ant the author of a libel which the defendant had notice to produce, A. was called, who swore he received the manuscript of the libel from the defendant and returned it to him, but on cross-examination the witness stated that he had not delivered the manuscript to the defend- ant himself, but had delivered it to his (the witness') own servant to deliver to the defendant, A.'s servant was called, who testified that he delivered the manuscript to the defendant's servant ; held, not sufficient to enable the prosecutor to give parol evidence of the existence of the paper, nor for considering the defendant as the author of the libel.^ § 377 «. There are instances of the courts having re- fused to compel the production of the writing, and at the same time have excluded secondary evidence of its con- tents ; as, where the communication was addressed to the governor of a State respecting a State officer, the court held that the governor to whom it was addressed might exercise his own discretion as to its production, and ex- cluded parol evidence of its contents.^ 1 Winter z/. Donovan, 8 Gill, 370; Le Merchant's Case, 2 T. R. 201 ; Layer's Case, 6 State Tr. 229. 2 Rex V. Pearce, Peake's Cases, 75. There is a presumption that one to whom a message has been intrusted for delivery has delivered it. (Middleton v. Earned, 4 Ex. 241 ; Wells v. Webber, 2 Fost. & F. 715.) 3 Gray v. Pentland, 2 S. & R. 23 ; 4 S. & R. 420 ; and see Wyatt v. Gore, Holt's Cases, 299; Oliver v. Bentinck, 3 Taunt. 456 ; Howard v. Thompson, 21 Wend, 319 ; Beatson v. Skene, 5 Hurl. & N. 838; M'Elveney v. Conellan, 17 Ir. Com. L. R. 55 ; Earl V. Vass, Boyd Kinnear's Dig. H. L. Cas. 226 ; i Shaw's App. Cas. 229 ; Home V. Bentinck, 2 Brod. & B. 130; Dawkins v. Rokeby, Law Rep. 8 Q. B. 255. In an action for libel, pending in the Circuit Court of the District of Columbia, the Hon. Edwin M. Stanton, Secretary of War, was summoned as a witness to produce an original letter addressed to the former assistant secretary of war, Dana, which letter contained the matter alleged to be libelous. Mr. Stanton put in an affidavit respectfully submitting his objections to the production of the paper in question, and asking to be discharged from further attendance. The affidavit bore the follow- ing indorsement : " Sir, Letters on file with the heads of departments are privileged communications. Unless their publication has been authorized, no copies should be 644 EVIDENCE FOR PLAINTIFF. [CH. XVI. § 37^' Where the defamatory writing has been lost, secondary evidence of its contents may be given.' Where the libel (a song) from which the publication took place was lost, a printer was allowed to produce a similar one printed at the same time, and which he proved cor- responded with the one lost.' Where, to sustain an action of libel, the proof sought to be made was, that the publi- cation was by an affidavit, made by the defendant before a magistrate, imputing to the plaintiff the offense of hog stealing, and the only evidence of the existence of the affidavit was an imperfect memorandum of it, in the handwriting of the magistrate, who was alive and out of the State, and there was no sufficient proof of its being, in whole or in part, a copy ; it was held that the evidence was not sufficient to sustain the action.^ § 379. In an action against the proprietor of a news- paper for a libel contained in it, proof that the paper taken at private request, and the production of the original cannot be compelled in a suit between individuals. It has been ruled that such communications cannot be made the foundation of an action for libel Then I think the head of a department is bound not to produce a paper on file in his office. Such a letter as you describe is a privileged communication. (Signed.) J. Speed, Attorney General." And in an action for libel, it was held that a member of Parliament could not be examined as to what was said by the plaintiff in the course of a debate in Parliament. (Plunkett z: Cobbett, 5 Esp. 136.) The plaintiff having failed in his application to the Senate for the removal of the injunction of secrecy, the testimony of a Senator was admitted to prove that plaintiff's nomination had been rejected by the Senate. (Law v. Scott, 5 Har. & J. 438.) It has been held to be optional on the part of counsel whether he will disclose what passed in court on his making a motion. (Curry v. Walter, i Esp. 456.) And held that a letter to the chief secretary of the postmaster general is not privileged from disclosure in court on the ground that it is an official communication to a public officer. (Blake v. Pilfold, i Moo. & Rob. 198 ; see Black v. Holmes, i Fox & Sm. 28 ; Perkins v. Crummer, i Law Rec. O. S. 36 ; Croke v. O'Grady, 4 Id. 42, 49 ; see anU, p. 363, and note.) ' Gates V. Bowker, iS Vt. (3 Washb.) 23 ; Strader v. Snyder, 67 111. 404 ; Weir V. Hoss, 6 Ala. 881 ; Rainy v. Bravo, 20 Weekly Rep. 873. Where it appeared that the alleged libel was filed of record in the navy department at Washington, held that secondary evidence of its contents might be given. (Carpenter z'. Barley, Superior Ct. N. Hamp. 20th March, 1876.) - Johnson v. Hudson, 7 Ad. & Ell. 233, note. ' Sanders z: Rollinson, 2 Strobh. 447. § 379-] PROOF OF PUBLICATION. 645 came from the defendant's office, and was one copy of an edition of the same date, and alleging on its face that he is the proprietor, is proof of a publication by him ; ' and so in such an action, testimony by a subscriber for the paper, upon being shown the number of the paper con- taining the article in question, that it was in all respects similar to the paper left at his office, and that he had read the article contained in the paper produced in the one left at his office, is sufficient proof of publication, without producing the paper left at his office.^ And where a witness swore that he was a printer, and had been in the office of the defendant when a certain paper was printed, and he saw it printed there, and the paper produced by the plaintiff" was, he believed, printed with the types used in the defendant's office ; held that this was prima facie evidence of the publication by the de- fendant.3 The witness in this case might have refused to testify on the ground that he inculpated himself, ■♦ but as ' The state v. Jeandell, 5 Harring. 475 ; Fry v. Bennett, 4 Duer, 247. An affi- davit which stated that a copy of a newspaper had been purchased from a salesman in the office of said newspaper, and that on the face of said paper it was stated that J. S. was the printer and publisher thereof, and that deponent believed J. S. to be the printer and publisher, held not to contain legal evidence of J. S. being the pub- lisher. (Reg. V. Stanger, Law Rep. 6 Q. B. 352.) ' Huff V. Bennett, 4 Sandf. 120; and see Commonwealth v. Blanding, 3 Pick. 304- ' Southwick V. Stevens, 10 Johns. 442 ; McCorkle v. Binns, 5 Binney (Pa.) 340 ; post, § 381. * Moloney v. Hartley, 3 Camp. 210 ; ante, § 270. Where a defendant is sub- poenaed as witness for the plaintiff, he cannot object to being sworn, on the ground that any relevant questions put to him would tend to criminate himself, the plaintiff has a right to have him sworn, and defendant must answer the questions put to him, or object, as any other witness, to any question that would criminate him. (Boyle V. Wiseman, 10 Ex. 647.) As to interrogatory to defendant inquiring if he wrote the alleged libel, see Inman v. Jenkins (Law Rep. 5 C. P. 738). Interrogatories to defendant not allowed merely to rebut privilege by showing malice (Davis v. Gray, 30 Law Times, N. S. 418) ; nor to enable plaintiff to institute criminal proceedings (Id. ; and see Stein v. Tabor, 31 Id. 444); nor to prove truth of criminal matter charged (Thorpe v. Macauley, 5 Mod. 218, 229); nor to compel an answer which defendant swears would criminate him (Bowden v. Allen, 22 Law Times, N. S. 342) ; nor to prove contents of a communication to Lords Commissioners of the Great Seal 646 EVIDENCE FOR PLAINTIFF. [CH. XVI. he did not claim his privilege, his testimony was properly received ; and so it was held in the case of a witness who had written the defamatory matter at the request of the defendant.' § 380. Proof that the defendant gave a bond to the stamp office for the duties on the advertisements in a newspaper, under the statute 29 George III, ch. 50, and that he had occasionally applied at the stamp office re- specting the duties, was held to be sufficient evidence of his being the publisher of such newspaper." And the production of a certified copy of the affidavit required by the statute 38 George III, ch. 78, with a newspaper con- taining the libel, corresponding with the paper described in the affidavit ; held to be sufficient evidence of publica- tion by the defendant.^ Where, in an action for libel in (Fitzgibbon v. Greer, 9 Ir. Rep. Com. Law, 294); nor, before the statute 6 & 7 Vict. ch. 76, to show defendant the publisher (Baker v. Pritchard, 2 Atk. 387 ; Selby V. Crew, 2 Anst. 504) ; but allowed where the alleged libel would not authorize a criminal proceeding. (M'Loughlin v. Dwyer, 9 Ir. Rep. Com. Law, 170.) Inter- rogatories allowed to prove plea of justification. (Macauley v. Shackel, I Bligh, N. S. 96, 133 ; Collins v. Yates, 27 Law Jour. Ex. 150.) In Ramsden v. Brierley (33 Law Times, N. S. 322), an interrogatory was allowed, "Were you the printer and publisher of the newspaper ? " This was under the statute 6 & 7 Vict. ch. 76, providing that discovery is not to be used in any other proceeding. In Wilton v. Brignell (Addenda to Hare on Discovery, 2d edit.), from the following interroga- tories the words in italics were struck out : Was the passage set out in paragraph 3 intended by defendant to apply to plaintiff ; if not, say to whom ? Were you your- self the writer of the passages {citing them) j if not, who was ? (See ante, notes to § 270. Interrogatories to defendant of a fishing character not allowed. (Stiern v. Sevastopulo, 8 Law Times, N. S. 538.) Where a bill of particulars of a general plea of justification on the ground of truth had been ordered, the court refused to allow interrogatories to plaintiff to enable defendant to comply with the order, with- out an affidavit disclosing circumstances to warrant a departure from the general rule. (Gourley v. Plimsoll, Law Rep. 8 C. P. 362.) ^ Schenck v. Schenck, i Spencer, 208. * Rex V. Topham, 4 T. R. 126. Distributing newspapers containing defamatory matter and receiving pay for them through an agent is sufficient evidence of publica- tion by defendant. (The State v. Davis, 3 Yeates, 128.) Defendant proved to be owner in 1848 and 1849, it was presumed he continued the owner in 1851. (Fry v. Bennett, 28 N. Y. 330.) 3 Mayne v. Fletcher, 9 B. & Cr. 382 ; Rex v. Hunt, 9 B. & Cr. 382, n. ; Rex v. Hart, 10 East, 94. ft 381.] defendant's liability. 647 a newspaper, the one put in had the place of publication " at the corner of Charles street and Hadfield street, in the parish of M.," the certificate of the stamp office declaration was at " No. 23 Charles street," in the parish, &c. ; held sufficiently to identify the newspaper as pub- lished by the declarant, within the 6th & 7th WilHam IV, ch. 76.' § 381. The publication of a libel in a newspaper may be proved by producing the copy of the newspaper filed in the office of the commissioner of stamps,^ or by pro- ducins: a copy filed in the office of publication of such Addenda to Page 646. It may may now be considered as settled that, in an action for slander or libel, the defendant cannot, either at the trial or before the trial, be asked any question, the answer to which will prove, or tend to prove, him the publisher of the alleged defamatory matter. Phoenix v. Dupuy, 2 Abb. New Cas. 146; Atherley v. Harvey, 25 Weekly Reporter, 727. question, and he believed it was a copy of that paper. He was not cross-examined. Held, first, that secondary evidence of the contents of the copy was properly ad- • Baker v. Wilkinson, i Carr. & M. 399 ; Rex v. Donnison, 4 B. & Ad. 698. The statute 6 & 7 William IV, ch. 76, has since been repealed, 32 & 33 Vict. ch. 24, and now there is no statutory proof of publication. (Reg. v. Stanger, Law Rep. 6 Q. B. 352.) 2 Cook V. Ward, 6 Bing. 409. » Rex V. Pearce, Peake's Cas. 75- A witness may testify to the contents of a paper not produced, it being a printed one, always issued in the same form. (Butler v. Maples, 9 Wall. 766.) To prove the publication in a newspaper, it is not necessary to produce a copy actually published ; it is sufficient to produce a copy, and prove that papers of the same kind were published. (Simmons v. Holster, 13 Min. 249.) Against a person not connected with the paper, mere proof of the periodical pubUca- tion of the paper not sufficient. {Id. ; ante, § 379.) 646 EVIDENCE FOR PLAINTIFF. [CH. XVI. he did not claim his privilege, his testimony was properly received ; and so it was held in the case of a witness who had written the defamatory matter at the request of the defendant' § 380. Proof that the defendant gave a bond to the stamp office for the duties on the advertisements in a newspaper, under the statute 29 George III, ch. 50, and that he had occasionally applied at the stamp office re- specting the duties, was held to be sufficient evidence of his being the publisher of such newspaper." And the 1 -.•_.. „f — ^^4-;f;«ri nnr^^T nf the affidavit required by providing that discovery is noi w uc U3«.rima facie privi- leged, the onus of proving malice in fact, /. e., that the defendant was actuated by motives of personal spite or ' Williams V. Greenwade, 3 Dana, 432; King v. Waring, 5 Esp. Gas. 14; Ben- nett V. Hyde, 6 Gonn. 24; Romayne v. Duane, 3 Wash. G. G. 246; Sample v Wynn, Busbee Law (N. Car.) 319; Howell v. Howell, 10 Ired. 82; Burton v March, 6 Jones Law (N. Gar.) 409: Williams v. Haig, 3 Rich. (So. Gar.) 362 • Shroyer v. Miller, 3 W. Va. 158. ' Steinman v. Mc Williams, 6 Barr, 170. ^ Leonard v. Allen, 11 Gush. 241. ■* Fry V. Bennett, 5 Sandf. 54; Sanderson v. Caldwell, 45 N. Y. 398; Wilson v Noonan, 35 Wis. 321; Estes z/. Antrobus, i Mo. 197 ; McKee v. Ingalls, 4 Scam 30 ; Parke v. Blackiston, 3 Harring. 373 ; Kinney v. Hosea, Id. 397 ; Farley v Ranck, 3 Watts & Serg. 554; Erwin v. Sumrow. i Hawks, 472; Dexter v. Spear 4 Mason, 115; Bodwell v. Osgood, 3 Pick. 379; Weaver v. Hendrick, 30 Mo '(9 Jones), 502 ; Roberts v. Camden, 9 East, 93 ; Usher v. Severance, 20 Me. 9 • Yates V. Reed, 4 Blackf. 463 ; Gilmer v. Ewbank, 13 111. 271 ; Root v. King, 7 Cow. 613 • affi'd 4 Wend. 113 ; Trabue v. Mayo, 3 Dana, 138 ; Byrket v. Monohon, 7 Blackf' 83; Hudson V. Garner, 22 Mo. (i Jones), 423; Curtis v. Mussey, 6 Gray. 261 The jury cannot infer the want of malice from the fact that the words were spoken only once, and stated as a common report. (Mason v. Mason, 4 N. Hamp. no; § 73, ante) In Massachusetts and Maine, by statute, in an action for libel, defend- ant may give evidence of intention, and unless plaintiff prove malice in fact, he can recover nothing but his actual damage proved and specially alleged in his declara- tion. (See Moore v. Stevenson, 27 Conn. 14 ; Hotchkiss v. Porter, 30 Gonn. 414.) 658 EVIDENCE FOR PLAINTIFF. [cH. XVI. ill-will, is upon the plaintiff. The existence or non-exist- ence of this intent is a question for the jury.' "The want of proof on the part of the defendant that the slan- der was true, is not enough (to prove malice), and the plaintiff, to maintain his action, must show that the charge was false, before he can ask the jury to find the slander to be malicious."^ § 389. It is said that falsehood 7nay be evidence of malice.^ But the mere falsity of a publication, without its being shown that the publisher knew it to be false, is not per se evidence of malice. Thus, where the alleged libel was a complaint made by the defendant of the incompetency of the plaintiff, a surveyor, who had been sent to him for employment, and the mmtendo charged ' Pattison v. Jones, 8 B. & C. 578 ; 3 M. & R. loi ; Bromage v. Prosser, 4 B. & C. 247 ; 6 Dow. & R. 296 ; Child v. Affleck, 9 B. & C. 403 ; Kelly v. Partington, 4. B. & Ad. 700; 3 N. & M. 116; Toogood v. Spyring, 4 Tyrw. 582; i C. M. & R. 573; Kine v. Sewell, 3 M. & W. 297; Wright v. Woodgate, 2 C. M. & R. 573; Tyrw. & G. 12 ; Liddle v. Hodges, 2 Bosw. 537 ; Somerville v. Hawkins, 10 C. B. 583; 15 Jurist, 450. The question of malice is for the jury to determine, upon all the facts and conversations in connection with which the words were spoken. (Mc- Kee V. Ingalls, 4 Scam. 30 ; Erwin v. Sumrow, i Hawks, 472 ; Smith v. Youmans, Riley, 88 ; Robinson v. May, 2 J. P. Smith, 3 ; Roberts v. Camden, 9 East, 93 ; Cole- man V. Playstead, 36 Barb. 26.) Where the charge was that the conduct of plaintiff was "most disgraceful and dishonest." The conduct of plaintiff was of an equiv- ocal nature, and might bona Jide be supposed by defendant to be such as he described it, held, not of itself, evidence of malice, and the court did right to order a verdict for the defendant. (Spill v. Maule, Law Rep. 4 Ex. 232.) Where there is evi- dence from which the jury may find that the defendant knew the charge to be un- true, the defendant must disprove malice. The knowledge of its untruth is some evidence of malice. (Hartwell v. Vesey, 3 Law Times, N. S. 275.) In judging of the malicious character of an alleged libel, the jury may take into consideration the whole publication ; and if it contains statements concerning other persons, which are malicious, the jury may infer therefrom that what is said of the plaintiff is also, malicious. (Miller v. Butler, 6 Gush. 71, and see Caddy v. Barlow, i M. & R. 275 ; § 399. post.) ^ Fowles V. Bowen, 30 N. Y. 26 ; and see Edwards v. Chandler, 14 Mich. 471 ; Rogers v. Clifton, 3 B. & P. 587. " Man," says Channing, " is not accountable for the rightttess, but he is accountable for the uprightness of his views. 2 Fairman v. Ives, 5 B. & Aid. 645. Where part of a defamatory publication is shown to be true, the falsehood of the other part may be left to the jury as evidence of malice. (Blagg v. Sturt, 10 Q. B. 897; 8 Law Times, 135 ; ante,no\.e. 3, p. 439.) § 390-] ^^ AGGRAVATE DAMAGES. 659 that the defendant meant that the plaintiff was not a competent and skillful surveyor, held, that evidence of the general competency and abilities of the plaintiff was in- admissible to show malice/ Making a statement which is untrue to the knowledge of the party making it, is evidence of malice.^ On . the trial of an action for slan- der, the plaintiff's witnesses proved that the slanderous statements were untrue in fact, but also that they were the natural and reasonable inferences from what took place, and which they professed to describe, and that the defendant was present at the occurrence to which the slanderous statements referred. The judge ruled that the occasion was privileged, but that the plaintiff must have a verdict unless the defendant proved that the statements were made without mahce. Held, a right direction ; the presence of the defendant being some evidence that the: statements were made with a knowledge that they were: untrue. 3 To show that the defendant knew of the falsity of a charge of theft published by him, the plaintiff was permitted to prove that after the time when the theft was alleged to have been committed by plaintiff, the defend- ant continued upon friendly terms with plaintiff.^ § 390. The plaintiff may prove, in aggravation of the damages, his rank and condition in society,^ malice 1 Brine v. Bazalgette, 18 Law Jour. Rep. 348, Ex. ; Caulfield v. Whitworth, iS Law Times, N. S. 527. * Fountain v. Boodle, 2 Gale & D. 455 ; 5 Q- B. 5 : Harris v. Thompson, 13 C. P 333 ; Sexton v. Brock, 15 Ark. 345; Farley v. Ranck, 3 Watts & Serg. 554 ; Harwood v. Keech, 6 Sup. Ct. Rep. (T. & C.) 665 ; n Sup. Ct. Rep. (4 Hun), 389- 3 Hartwell v. Vesey, 9 C. B. N. S. 882 ; 3 Law Times, N. S. 275. In slander, with general issue only pleaded, the plaintiff cannot, in the first instance, give evi- dence tending to prove the defendant's knowledge of the falsity of the words spoken. (Hartranft v. Hesser, 34 Penn. St. R. 117.) * Burton v. March, 6 Jones Law (N. Car.) 409. 6 Tillotson V. Cheetham, 3 Johns. 56 ; Hosley v. Brooks, 20 111. 115 ; Lamed v. Buffington, 3 Mass. 546 ; Bodwell v. Swan, 3 Pick. 376; Howe v. Perry, 15 Pick. 506; Smith V. Lovelace, i Duvall (Ky.) 215 ; Justice v. Kerlin, 17 Ind. 588 ; Pel- tier w. Mict, 50 111. 511 ; Klumph v. Dunn, 06 Penn. St. R. 141 ; contra, see Gandy V. Humphries, 35 Ala. 617. 66o EVIDENCE FOR PLAINTIFF. [cH. XVI. (ill-will) in defendant (§ 392, post), that defendant knew the charge to be false,' other publications of words 7iot actionable^ or which are actionable,^ if, as is said, the right of action on such words is barred by the statute of limitations/ and subsequent defamator}- remark-s upon the plaintiff.-' and after the commencement of the action.^ In slander of a physician in his profession, the currencv of » Bullock z: Cloyes, 4 Vt. 504 ; Stow v. Converse, 3 Conn. 325 ; ante, % 389. - Allensworth v. Coleman. 5 Dana, 315 ; The State v. Riggs, 39 Conn. 498 ; Simonds --. Carter, 32 N. H. 458. Slanderous words, not laid in the declaration, cannot be proved in aggravation of damages. (Vincent v. Dixon, 5 Ind. [Porter], 270: Schenck v. Schenck, i Spencer, 20S ; Botelar v. Bell, i Md. 173 ; Medaugh r. Wright, 27 Ind. 137.) ^ Lee V. Huson, Peake, 166 ; Bond v. Douglas, 7 C. & P. 626 ; but see Cook v. Field, 3 Esp. 133. ^ Titus V. Sumner, 44 N. Y. 266 ; Brickett --. Davis, 21 Pick. 404 ; Throgmorton v. Da%-is, 4 Blackf. 174. But words not laid in the declaration cannot be proved to make the words laid actionable. (Jones v. Jones, i Jones Law [N. Car.] 495.) And where words actionable in themselves, and not set out in the declaration, are ad- mitted in evidence to prove malice, the court must caution the jurj- that they are not to increase the damages on account of such words. (Letton v. Young, 2 Mete [Ky.] 55S; Barrett v. Long, 8 Ir. Law Rep. 331 ; Scott v. McKinnish, 15 Ala. 662 ; Burson z: Edwards, i Carter [Ind.] 164; see § 2()2, post.) A publication by defendant after the commencement of the action cannot be proved to aggravate damat^es. (Frazier r. McCloskey, 60 N. Y. 337.) ' Chubb -'. Westley, 6 C. & P. 436; post, % 394. Where the words complained of are unambiguous— held that proof of the publication subsequently of other words of the same import is inadmissible. (Pearce v. Ormsby, i M. & Rob. 455; S>-m- mons V. Blake, Id. 447.) * P<'st, %% 394, 395 : Barwell z: Adkins, 2 Sc. X. S. 11 ; Hesler v. Degant, 3 Ind. 501 : Williams V. Harrison, 3 Mo. 411 ; Hutch z: Potter, 2 Oilman, 75 ; Scrimper z: Heilman, 24 Iowa, 505 ; Kean z: McLaughlin, 2 S. A: R. 469 ; contra, McGlenery z: Keller, 3 Blackf. 488. In an action for a libel in a weekly periodical publication, a witness was allowed to prove a purchase of a copy after the action brought. (Plunkett z: Cobbett, 2 Selw. N. P. 1042 ; 5 Esp. 136.) If a defendant, after action brought, issues a new publica- tion, mingling the matter for which he has been sued %vith new libelous matter, he cannot call upon the court to analyze the publication, and separate what refers to the former libel from the new slanderous matters it may contain, but the whole may be read in e%-idence. (Schenck z: Schenck, i Spencer, 2o3.) As to admissibility of proof of repetition to aggravate the damages, see Burson v. Edwards, I Carter (Ind.) 164 ; Shoulty v. Miller, i Ind. 544; Lanter v. McEwen, 8 Blackf. 495 ; Forbes v. Myers, Id. 74; Leonard z: Pope, 27 Mich. 145. Proof of a repetition of the words a/ifr action commenced not permissible. (Frazier v. McCloskey, 60 N. Y. 337 ■ 2 Sup. Ct. Rep. [T. & C] 266.) § 39I-] "^^ AGGRAVATE DAMAGES. 66 1 the slanderous report in the place of his practice, follow- ing the utterance of the same by the defendant, may be given in evidence, as well as the effect of such report upon the professional gains of the plaintiff, in aggrava- tion of damages, without strict proof connecting the current report with the slander of the defendant ; the fact of such connection being for the jury, and not for the court to pass upon/ A libel charged M. with kid- napping a free colored man, and referred to two numbers of a newspaper which showed the transaction i7i full ; Held, an aggravation of the libel.' If the publication was in a newspaper, the plaintiff may, to aggravate the damages, prove the extent of the circulation of that paper at the time of the pubhcation of the alleged libelous matter, and to prove this, may give a copy of the defend- ant's paper in evidence containing a statement of the amount of circulation. ^ § 391. The plaintiff, to aggravate damages, cannot prove the defendant's wealth,* nor that it was currently ' Rice V. Cottrell, 5 R- I- 340. In Hotchkiss :-. Lothrop, I Johns. 236; Dole v. Lyon 10 Johns. 447, doubted if defendant being indemnified was not admissible in aggravation. Sembk not, as indemnity void. {Ante, % 305.) ^^T^ere the plaintiff m an action for a libel charging her with theft, published in a newspaper, had alleged as special damage that in consequence of said libel she had been discharged from the emplo^-ment of one W., on the trial plaintiff offered evidence that a few day, after the publication of the libel, W^ had said to her that there were flying reports in the newspapers about her and her sister, and that it would injure his shop to have such girls there, and had thereupon discharged them— held that such evidence was admissible in support of the allegation of special damage, although there was no evi- dence either that W. had seen the publication in question, or as to what reports and what newspapers he referred to. (Moore v. Stevenson, 27 Conn. 14.) Plamtiff cannot give in evidence to enhance damages that detectives put his name in their books, without showing that defendant was connected with such act of the detec- tives. (Garvey v. Wayson, 42 Md. 173.) 2 Nash v. Benedict, 25 Wend. 645. 3 Fr)- V. Bennett, 2S N. Y. 330. ^ Myers v. Malcolm, 6 Hill, 292 ; Ware z: Canledge, 24 ^^a. 622 ; Palmer v. Ras- kins, 23 Barb. 90; Morris v. Barker, 4 Marring. 520; but see Fry v. Bennett, 4 Duer, -'47 • Buckley v. Knapp, 48 Mo. 152 ; Bennett v. Hyde, 6 Conn. 24; Case v. Marks, 20 Conn. 248 ; Adcock v. Marsh, S Ired. 360; Kamey -.'. Paisley, 13 Iowa (5 With.) 662 EVIDENCE FOR PLAINTIFF. [cH. XVI. reported that defendant had charged the plaintiff with the crime mentioned in the declaration,' nor that the plaintiff had suffered distress of mind," nor that the de- fendant, when requested, refused to give the name of the author of the alleged defamatory language.^ § 392. The plaintiff may prove express malice — i. e., ill-will or hostility on the part of the defendant towards the plaintiff— either to aggravate the damages ^ or to de- feat a defense of privileged publication.^ To establish such malice, the plaintiff may, it is held, in some cases, give in evidence other publications by the defendant of defamatory language concerning the plaintiff, whether it be the same as or other than the language declared upon if of the like import.^ But the better opinion appears to 89 ; Humphries v. Parker, 52 Maine, 502 ; Stanwood v. Whitmore, 63 Id. 209 ; Hos- ley V. Brooks. 20 111. 115 ; Harbison v. Shook, 41 111. 142 ; Lewis v. Chapman, 19 Barb. 252; Kunkel v. Markell, 26 Md. 391. ' Leonard v. Allen, 11 Cush. (Mass.) 241. ' Terwilliger v. Wands, 17 N. V. 54; Wilson v. Goit, Jd. 442; contra, Burk v. McBain, 29 Mich. 260; Swift v. Dickerman, 31 Conn. 2S5 ; ante, note, p. 102. 3 Harle v. Cotterall, 14 Law Times, N. S. 801. * Fry V. Bennett, 28 N. Y. 330 ; True v. Plumley, 36 Maine (i Heath), 466 ; Sawyer v. Hopkins, 9 Shep. 268 ; Jellison v. Goodwin, 43 Maine, 287 ; 2 Greenl. Ev. §418 ; Spilling v. Carson, 27 Md. 175. Until some of the actionable words laid have been proved, evidence of the quo animo of the defendant is inadmissible. (Abrams V. Smith, 8 Blackf. 95.) ' Baboneau v. Farrell, 15 C. B. 360 ; 24 Law Jour. Rep. N. S. 9 C. P. ; I Jur. N. S. 14 ; Littlejohn v. Greeley, 13 Abb. Pr. Rep. 41 ; Suydam v. Moffat, i Sandf. 459; Root z'. King, 4 Wend. 113; Garrett z/. Dickerson, 19 Md. 418 ; see Holt f. Parsons, 23 Texas, 9. It is no objection to a recovery for the slanderous words charged, that the publication of the same words has been proved against the defend- ant m a former action between the same parties, for the purpose of proving malice. (Swift V. Dickerman, 31 Conn. 285 ; Campbell v. Butts, 3 N. Y. 173.) Where priv- ilege is shown, express malice must be proved, or plaintiff will be nonsuited. (Caul- field V. Whitworth, 16 Weekly Rep. 936.) " Burson v. Edwards, i Carter (Ind.) 164 ; Pearson v. Le Maitre, 6 Sc. N. S. 607 ; 5 Man. & G. 700 ; Delegal v. Highley, 8 C. & P. 444 ; Elliott v. Boyles, 31 Penn. St. R. 65 ; The State v. Jeandell, 5 Harring. 475 ; Price v. Wall, 2 Quart. Law Jour. 63 ; Cavanaght/. Austin, 42 Vt. 576; Johnson v. Brown, 57 Barb. 1 18; Meyers. Bohlf- ing, 44 Ind. 238 ; Clapp v. Devlin, 35 Superior Ct. Rep. (3 J. & S.) 170 ; Alpin v. Morton, 21 Ohio St. 536. Proof may be given of the publication of other words of like im- g 3C,2.] . PROOF OF MALICE. 663 be, that evidence of a charge of a different nature, and at a different time from that alleged in the declaration, is inadmissible to prove malice or for any purpose/ This is in effect only another form of the rule that actionable words not counted upon cannot be given in evidence,^ unless a suit upon them is barred by the statute of lim- itations,3 and their admission, where the statute has run, is opposed to principle, as it in effect restores a cause of action which has been taken away by the law/ It seems clear that a repetition by the defendant of the defamatory matter complained of is admissible to prove malice in fact ; and it is said that within this rule any act or lan- guage of the defendant tending to show malice beyond port. (Thompson v. Bowers, I Doug. 321 ; Stearns v. Cox, 17 Ohio, 59° i Taylor v. Moran, 4 Mete. [Ky.] 127.) Extracts from a newspaper, being separate and inde- pendent libels not declared on, may be offered in evidence to prove express malice, or as showing the qiw animo ; such words cannot be made the foundation of a re- covery of damages for an injury the plaintiff may have suffered from them, but can only affect the damages by showing the degree of malice. (Van Derveer v. Sutphm, 5 Ohio, N. S. 293 ; Markham v. Russell, 12 Allen [Mass.] 573.) 1 Howard v. Sexton, 4 N. Y. 157. Although in slander, the plaintiff, to prove the animus, may show a repetition of the words, or of such as show the same train of thought, yet he cannot give in evidence other words which maybe the subject of an- other action ; held, also, that it appearing that the plaintiff had recovered in another action against the defendant's son, what passed after the verdict, by way of proposal to compromise the second action was admissible to show that it was not vexatiously prosecuted. (Deffries v. Davies, 7 C. & P. 112.) "" Rundell v. Butler, 7 Barb. 260; Mead z/. Daubigny, Peake, 125 ; and see Camp- bell V. Butts, 3 N. Y. 173 ; Keenholts v. Becker, 3 Denio, 346 ; Thomas v. Croswell, 7 Johns. 264; contra, Duvall v. Griffith, 2 Har. & Gill, 30; Scott v. McKinnish, 15 Ala. 662; Long v. Chubb, 5 C. & P. 55 ; Bartow v. Brands, 3 Green (N. J.) 248 ; Brittain v. Allen, 2 Dev. 120; 3 Dev. 167. 3 Inman v. Foster, 8 Wend. 602 ; Throgmorton v. Davis, 4 Blackf. 174; Flam- ingham v. Boucher, Wright, 746 ; see also, Lincoln v. Chrisman, 10 Leigh, 338. In an action of slander for words imputing perjury, an affidavit of the defendant, on which an indictment had been preferred, and which had been made so long before as to be barred by the statute of limitations, charging the plaintiff with the same perjury set out in the declaration, is admissible in evidence as proof of the repetition of the same words in a different form, and with more deliberation, and to show the quo animo. (Randall v. Holsenbake, 3 Hill [S. Car.] 175.) * Root V. Lowndes, 6 Hill, 518. 664 EVIDENCE FOR PLAINTIFF. [CH. XVI. that implied by the original publication, the subject of the action, may be proved.' § 393. In an action for libel, the defendant pleaded the general issue, and also a plea under the 6th & 7th Vict. c. 96, denying actual malice, and stating an apology. On the trial, the plaintiff, in order to prove malice, ten- dered in evidence other publications of the defendant, going back above six years before the publication com- plained of — held that these publications were admissible in evidence ; ' but the court should in such a case call attention to the distance of time elapsed before the sub- sequent statements, and that those statements might have referred to some other and subsequent matter, so as not to show malice at the time of the publication com- plained of3 § 394. A plaintiff may, to prove malice, give evidence of a publication by the defendant made subsequently to the publication declared upon, when the subsequent pub- lication is of a like import with that declared upon, or relating thereto, or is not actionable of itself, or explains any ambiguity in the matter declared upon.* And in an ' Fry V. Bennett, 28 N. Y. 328 ; Johnson v. Brewn, 57 Barb. 118. Damages re- covered for previous slander may be given in evidence to show malice. (Symmons V. Blake, i M. & Rob. 477.) Where, in slander, plaintiff introduces evidence tend- ing to show that defendant repeated the same words in another conversation, de- fendant is entitled to the whole of that conversation. (Perry v. Breed, 117 Mass. 155 ; see Distin v. Rose, 15 Alb. Law Jour. 432.) ^ Barrett v. Long, 3 Ho. of Lords Gas. 395 ; 8 Ir. Law Rep. 331 ; Adkins v. Williams, 23 Ga. 222. ' Hemmings v. Gasson, 36 Law Jour. Rep. 252, Q. B. ; i El. B. & E. 346. * Pearce v. 0rmsby,'i M. & Rob. 455; Mix v. Woodward, 12 Conn. 262; Wil- liams V. Miner, 18 Id. 464; Symmons v. Blake, i M. & Rob. 477 ; Baldwin v. Soule, 6 Gray, 321 ; Shock v. McChe'sney, 2 Yeates, 473 ; Smith v. Wyman, 4 Shep. 13 ; Howard v. Sexton, 4 N. Y. 157 ; Kendall v. Stone, 2 Sandf. 269 ; Kennedy v. Gif- ford, 19 Wend. 296; Frazier v. McCloskey, 60 N. Y. 337 ; Miller "'. Kerr, 2 Mc- Cord, 285 ; Pearson v. LeMaitre, 6 Sc. N. S. 607 ; 5 Man. & G. 700; Chubb v. Westley, 6 Car. & P. 436 ; Shrimper v. Heilman, 24 Iowa, 505 ; Robbins v. Fletcher, loi Mass. 115; Ellis v. Lindley, 38 Iowa, 461 ; Hunsborough v. Stinnett, 25 Gratt. (Va.) 495 ; see Saunders v. Baxter, 6 Heisk. (Tenn.) 369. §§ 395' 39^-] PROOF OF MALICE. 665 action for words imputing perjury, the plaintiff was al- lowed, for the purpose of showing the quo animo, to give in evidence an indictment subsequently preferred by the defendant against him, and which was ignored/ But in an action of slander, for charging the plaintiff with steal- ing two beds, it was held not competent for the plaintiff, for the purpose of showing malice, to prove that the de- fendant subsequently entered a complaint against him, before a magistrate, for stealing a lot of wood and old iron ; first, because the words used in the complaint did not relate to the charge which was the subject of the action ; and secondly, because such using of the words was a proceeding in a court of justice, before a magis- trate having jurisdiction of the supposed offense.^ § 395. The plaintiff may, it seems, to prove malice, give evidence of defamatory publications by the defend- ant concerning him after the commencement of the ac- tion ; but the authorities are conflicting.^ In general, what occurs after the commencement of the action is in- admissible ; but where the words published led to the arrest of the plaintiff after the commencement of his ac- tion, it was held that the defendant might have excluded all evidence of what took place after the commencement of the action, but having consented to its admission, the jury were at liberty to take it into consideration.'* § 396. Where evidence of another or other publica- ' Tate V. Humphrey, 2 Camp. 73, note. ■ Watson V. Moore, 2 Cush. 133. ^ Ante, note 6, p. 660 ; Howell v. Cheatem, Cooke, 247 ; Scott v. Montsinger, 2 Blackf. 454 ; Teagle v. Deboy, 8 Blackf. 134; Warne v. Chadwell, 2 Stark. 457. Slanderous words (not actionable) spoken since the suit was commenced, are admis- sible in evidence to show the sense in which the words laid were spoken. (Carter v. M'Dowell, Wright, 100 ; and M'Donald v. Murchison, i Dev. 7 ; contra, Lucas v. Nichols, 7 Jones Law [N. Car.] 32.) Or to show malice. (Sonnebom v. Bernstein, 49 Ala. 168.) ^ Goslin V. Corry, 8 Sc. N. S. 21 ; 7 Man. & G. 343 ; and see Harrison v. Pearce, I Fos. & Fin, 567. 666 EVIDENCE FOR PLAINTIFF. [cH. XVI. tions than that declared upon is admitted for the pur- pose of showing malice only, the jury should be in- structed that it is admitted for that purpose alone, and that they are not to give damages for other than the words charged in the declaration.' An instruction was given to the jury to the effect that a letter written by defendant and given in evidence by the plaintiff, was admissible only to show malice, and for no other pur- pose, and that they had a right to award such damages to plaintiffs as they thought them entitled to under all the circumstances proved in the case ; held, that the cau- tion to the jury in respect to the effect of the letter was not sufficient.^ § 397. Evidence tending to make out an admission by the defendant, subsequently to the speaking of the words, of a dispute existing between him and the plaintiff before the speaking of the words, about a sum of money claimed to be due from the defendant to the plaintiff, is admissible to show express malice.^ So to prove malice plaintiff may give evidence tending to show that defend- ant coveted the possession of plaintiff's land, and hoped by defaming him to compel him to remove '/ but he can- not show that defendant had, by promises of reward and threats of vengeance, endeavored to prevent the attend- ance of witnesses for plaintiff. ^ § 398. In an action of slander for charging an infant with larceny, evidence of a previous quarrel between the defendant and the plaintiff's father and next friend, is inadmissible to prove malice in the defendant towards ^ Scott V. McKinnish, 15 Ala. 662 ; Barrett z>. Long, 8 Ir. Law Rep. 331. ^ Letton V. Young, 2 Mete. (Ky.) 558. ' Simpson v. Robinson, 18 Law Jour. Rep. 73, Q. B. ; 13 Jur. 187. ■* Morgan v. Livingston, 2 Rich. 573. ^ Kirkaldie v. Paige, 17 Vt. 256. Matter occurring two years before to show malice. (Harmon v. Harmon, 61 Maine, 233.) ^ 399.] PROOF OF MALICE. 667 the plaintiff.' In an action against the publisher of the magazine in which the libel was published, evidence of personal malice of the editor against the plaintiff was held inadmissible.' So the refusal of the editor of a newspaper to publish a retraction of the libel was held not to be evidence of malice against the publisher of such newspaper.3 On the trial of an action for a libel in a newspaper, it appeared that the defendant employed F. to print the newspaper in question, and that S., one of F.'s workmen, had set tcp the article in the absence of the defendant and of the editor of the paper ; held that the plaintiff could not ask a witness if he heard S. express any ill-will towards the plaintiff.* In the same case, it was held that the plaintiff might give in evidence an article published in a subsequent number of the same newspaper, with the defendant's knowledge and consent, justifying the publication of the article complained of as libelous, though such article was not published until after the action was commenced. § 399. The language itself whether oral or written, may be evidence of malice, and where the occasion ren- ders the publication prima facie privileged, the jury may take the language into consideration to determine the intent with which the publication was made.^ And ex- pressions in excess of what the occasion warrants may be evidence of malice.^ ^ York V. Pease, 2 Gray, 282. - Robertson v. Wylde, 2 M. & Rob. loi. 3 Edsall V. Brooks, 2 Robertson, 414; 33 How. Pr. R. 191 ; Ackerman v. Jones, 37 Superior Ct. Rep. (5 Jones & S.) 42. 4 Goodrich v. Stone, 11 Mete. 486. 5 Wright V. Woodgate, 2 C. M. & R. 573 ; Tyrw. & G. 12; Gilpin v. Fowler, 9 Ex. 615 ; Cooke v. Wildes, 6 El. & Bl. 328; Jackson v. Hopperton, 16 Com. B. N. S. 829 ; Spill V. Maule, Law Rep. 4, Ex. 232; ante, § 288, and last 'clause of § 241 ; also Swadling v. Tarpley, in Appendix, post. * Ante, § 244 b, and § 389. 668 EVIDENCE FOR PLAINTIFF [CH. XVI. § 400. Interposing a justification which the defendant either abandons or fails to prove, may be regarded as an aggravation of the original wrong, and may be taken into consideration by the jury in estimating damages.' It is evidence of malice,^ and of continued malice.^ In New York, since the Code of Procedure, the rule allowing mitigating circumstances has been changed, and a plea of justification on the ground of truth is not to be consid- ered as an aggravation/ A justification on the ground of truth w^as held not to be an aggravation of the charge, w^here the defendant had reason to believe the charge to be true, 5 or where the plea of truth was so defective that ' Fero V. Ruscoe, 4 N. Y. 162 ; Wilson v. Robinson, 14 Law Jour. Rep. 196, Q. B. ; 9 Jurist, 726 ; Lee v. Robertson, I Stew. 138 ; Richardson v. Roberts, 23 Ga. 215; Pool V. Devers, 30 Ala. 672; Updegrove v. Zimmerman, 13 Penn. St. R. (r Harris), 619 ; Gorman v. Sutton, 32 Id. 247; Doss v. Jones, 5 How. (6 Miss.) 158 ; Freeman v. Tinsley, 50 111. 497 ; Robinson v. Drummond, 24 Ala. 74 ; Beasley v. Meigs, 16 111. 139 ; Spencer v. McMasters, Id. 405 ; Smith v. Wyman, 4 Shep. 13 ; Fawcett v. Booth, 31 Up. Can. Q. B. 263 ; contra. Murphy v. Stout, i Ind. 372 ; Shoulty V. Miller, Id. 544 ; Shank v. Case, i Carter (Ind.), 170; Millison v. Sutton, Id. 508; Starr v. Harrington, Id. 515 ; and see Swails v. Butcher, 2 Carter, 84 ; Sloan V. Petrie, 15 111. 425 ; Thomas v. Dunaway, 30 111. 373 ; Rayner v. Kinney, 14 Ohio, N. S. 283; Pallet v. Sargent, 36 N. Hamp. 496; Cavanagh v. Austin, 42 Vt. 576; Ransome v. Christian, 49 Ga. 491. And by statute in Massachusetts, a plea of truth is not an aggravation of damages. The judge, in addressing the jury, commented upon the fact that the defendant had refused, at the trial, to make an apology and withdraw his justification, though he gave no evidence in support of it, as evidence of malice. Held no misdirection, (Simpson v. Robinson, 11 Law Times, 266 ; 18 Law Jour. Rep. 73, Q. B. ; 13 Jur. 187.) That the defendant procured evidence to prove the truth of his charges, and then declined to plead in justification, may be properly referred to the jury on the question of malice, though not on that of damages. (Bodwell v. Osgood, 3 Pick. 379.) The defendant endeavoring to obtain testimony of the truth of the alleged defamatory matter, is not of itself evidence of malice. (Ormsby v. Douglass, 37 N. Y. 482.) Nor is the fact of pleading a justification, of itself, evidence of malice. (Caulfield v. Whitworth, 18 Law Times, N. S. 527.) Efforts of defendant to have plaintiff indicted, may be shown to aggravate damages. (Harbison v. Shook, 41 111. 142.) '^ Jackson v. Stetson, 15 Mass. 48 ; Alderman v. French, i Pick. i. ^ Wilson V. Nations, 5 Yerg. 211. ■* Klinch V. Colby, 46 N. Y. 427 ; but see Bennett v. Matthews, 64 Barb. 410 ; Distin V. Rose, Alb. Law Jour. 432. * Byrket v. Monohon, 7 Blackf. 83 ; and see Shoulty v. Miller, i Ind. 544. § 401.] IN REPLY. 669 no judgment could have been entered upon it/ or where the plea was withdrawn before the trial. ^ Where in an action for libel defendant pleaded not guilty and a justifi- cation, he offered no proof of the justification, but gave evidence to show that the publication was made under circumstances rendering it a privileged communication ; held, that the jury, in forming their opinion (upon the first issue, whether or not the communication was privi- leged), ought not to take into consideration the fact that the justification had been pleaded and abandoned.^ § 401. In an action for a libel, the defendant, to jus- tify a charge made by him against the plaintiff of unfair- ness and partiality as collector of the United States taxes, proved that the plaintiff had refused to receive bills of a certain bank in payment of a tax. To rebut this evi- dence, the plaintiff offered a letter of instructions to him from the commissioner of the revenue, designating the description of the bills which the plaintiff should receive. It was held that such evidence was admissible as neg- ativing the charge of unfairness and partiality in the plaintiff's conduct.'^ It was in the same case held that the plaintiff could not repel a charge of partial and un- just conduct, in the exaction of commissions not author- ized by law, by showing that such commissions were taken honestly, through a mistaken construction of the law. ' Braden v. Walker, 8 Humph. 34. '■^ Gilmore v. Borders, 2 How. (3 Miss.) 824. 3 Wilson V. Robinson, 7 Q. B. 68; g Jurist, 726 ; 14 Law Jour. N. S. 196, Q. B. ■• Stow V. Converse, 3 Conn. 325. 43 CHAPTER XVII. EVIDENCE FOR DEFENDANT. What evidence is admissible depends upon what plea or answer is interposed — What may be proved under the general issue — Evidence to support a justijication — Plaintiff's reputation in isstte — Liguiry limited to plaintiff' s general reputation — And to his reputa- tion prior to the publicatioii complained of — Truth in mitigation — Conduct of plaintiff leading to belief in truth — Report or suspicion of plaintiff's guilt in mitigation — Plaintiff's staitding and co7tdition i7t society — Prior or subsequeiit declarations of defend- ant — Heat and passion — Previous publications by the plaintiff— Controversies between plaintiff and defeiid- ant prior to the ptiblication — Circiimstances not ad- missible in mitigation. § 402. What evidence the defendant may give de- pends upon what plea or answer he has interposed.' 1 We have already (note p. 126, ante) referred to some decisions on the proof of intent ; we here add some others which have come to our knowledge since the pre- Tious note was written. In Smith v. Higgins, 82 Mass. (16 Gray), 251, it is said : In slander the good faith of the defendant and the feelings which prompted him to speak the words alleged in the declaration, being properly in issue, he is competent to testify concerning them. The testimony of the defendant concerning his motive in speaking the words, his belief in their truth, and the absence of ill-will or malice toward the plaintiff is admissible. And to the like effect, see Wilson v. Noonan, 35 Wis. 321 ; McKown v. Hunter, 30 N. Y. 628 ; Turner v. O'Brien, Supreme Ct. Nebraska, March, 1877; 3 Law & Eq. Reporter, 628. In White v. Tyrrell, 5 Ir. L. R. N. S. 477, the defendant having written a letter, was permitted to be asked the question whether in writing the letter he had the intention of 402.] UNDER GENERAL ISSUE. 67I His proof must correspond with his plea. Under the common-law system of pleading and procedure, many- provoking a challenge. In Dillon v. Anderson, 43 N. Y. 236, the action was -on contract, defense, that contract was made jointly with H., who was not made a party. The contract was in writing and signed by defendant. H. was named in the body of the paper as a contracting party, but it was not signed by him; on the trial, the defendant was called as a witness on his own behalf, and asked by his counsel, "Did you intend to make an individual contract?" The question was disallowed, and held in the Court of Appeals : " The testimony called for was not proper. There are authorities that a witness may be asked his motive or intent in doing an act. * * We think that they hold no more than this ; that where the doing the act is not disputed, but is affirmed, and whether the act shall be valid or invalid hangs upon the intent with which it was done, which intent from its nature would be formed and held without avowal, then he upon whom the intent is charged may testify whether he secretly held such intent when he did the act. Thus an insolvent assignor in trust, charged with the fraudulent intent to hinder and delay creditors, may be called in support of the deed of trust, and may say, whether, when he made it, he had no fraudulent purpose ; and one sued for a mali- cious prosecution may testify that in setting on foot the legal proceedings he be- lieved that there was cause for them. And as an extreme case which we are not willing to extend, one against whom the defense of usury has been set up, has been permitted to testify what was the intention in stipulating for a sum reserved out of the face of a note. But that an act should be held to have or not to have effect, and one party to it to be bound or not, as the other party to it should, by his undis- closed purpose, have determined, is warranted by no sound principle." In Robbins V. Fletcher (loi Mass. 115.), an action of slander for accusing plaintiff of fornica- tion, defendant having denied, in his testimony in chief, that he spoke the words alleged, or that he had any ill-will toward the plaintiff, may be asked on cross-exam- ination whether he did not, before the time when it was contended that he uttered the words sued on, have a hostile feeling toward a person whom there is evidence that he spoke of as the other party to the offense. And where the defendant testi- fied to having no ill-will towards plaintiff, it was held he might be asked on cross- examination whether he had not brought suits against the plaintiff, but he cannot be asked what were the subject-matters of those suits. (Boynton v. Boynton, 43 How. Pr. R. 380.) In an action for malicious prosecution, defendant's counsel pro- posed to ask defendant whether, in procuring the warrant, he acted without malice. The question was disallowed, and, by the court, " It was for the jury to say whether the defendant acted maliciously, and to allow the question would be substituting the witness in place of the jury to determine one of the most important questions in the cause." (Lawyer v. Loomis, 3 Sup. Ct. Rep. [T. & C] 396.) In an action against defendant as superintendent of the poor, to recover for maintenance of a pauper alleged to have been improperly removed by him, with intent that the pauper should become chargeable to another county, held defendant might be asked. Did you send the pauper from the county of H. in good faith? (Cortland Co. v. Herkimer Co. 44 N. Y. 22.) It was held not proper to ask a witness. What would you have done with th-e proceeds if you had effected a sale? (Cowdrey v. Coit, 44 N. Y. 391.) Held not proper to ask a witness what was his intent in taking more than seven per cent, interest. (Fiedler v. Darrin, 50 N. Y. 443, 444.) And in a prosecution for seduc- 672 EVIDENCE FOR DEFENDANT. [CH. XVIT, matters of defense might be given in evidence under the general issue which now require to be specially pleaded. So, too, under the common-law system, mitigating cir- cumstances could not be pleaded, but were admitted in evidence under the general issue ; and this is still the rule where there is not any statutory provision on the subject. In New York and some other States, provision is made by statute allowing the defendant, in actions for slander and libel, to set forth in his answer the mitigating cir- cumstances he will prove upon the trial. Some of the effects of these statutory provisions have already been re- ferred to under the head of Pleading ; other effects will be noticed hereafter. § 403. Under the general issue the defendant was at liberty to prove anything which destroyed the plaintiff's cause of action.' He might disprove the fact of publica- tion, or show that the matter published was not of an in- jurious character, or that the publication was privileged,^ tion, held not proper to ask the woman, "Would you have consented to it (the in- tercourse) without a promise?" (The People v. Cook, 2 Sup. Ct. Rep. [T. & C] 404.) A question to witness, " In signing indorsement, did you intend to adopt the seals of the obligors ? " not allowed. (Brown v. Champlin, 3 N. Y. Weekly Dig. 189.) In an action for slander, defendant was not allowed to be asked whether, in making the publication, he had any thought of injuring plaintiff. (Harwood v. Keech. 6 Sup. Ct. Rep. [T. & C] 665 ; 11 Sup. Ct. Rep. [4 Hun], 391.) On a trial for an assault with an axe, it was held proper to ask the prisoner what was his " in- tention in taking the axe from the shed to the house." (Kerrains v. The People, 6a N. Y. 221.) ' Barber v. Dixon, i Wils. 45 ; and see O'Donoghue v. McGovem, 23 Wend. 26.. Where the words clearly impute a felony, if the defendant do not justify, he cannot show that the words related to an act which might have been innocent. (Laine v. Wells, 7 Wend. 175.) In New York, the defendant may examine the plaintiff as a witness before the trial, and if, on such examination, the plaintiff refuses to answer a proper question, his complaint may be struck out. (Richards v. Judd, 15 Abb. Pr. Rep. N. S. 184 ; 2 Sup. Ct. Rep. [T. & C] 479.) 2 O'Brien v. Clement, 15 Law Jour. Rep. 285, Ex. ; 3 D. & L. 676. Where the defense is privileged communication, it need not be specially pleaded. (Lillie v. Price, I Nev. & P. 16 ; 5 Dowl. 432 ; Richards v. Boulton, 4 Up. Can. Q. B. Rep. O. S. 95 ; Abrams v. Smith, 8 Blackf. 95 ; Stannus v. Finlay, 8 Ir. Rep. Com. Law,, 264.) But it may be specially pleaded (Dunn v. Winters, 2 Humph. 512), and it § 403-J UNDE^L GENERAL ISSUE. 673 as being a fair comment on a matter of public concern ; ' any circumstances which tended to disprove malice ; ' or that plaintiff procured the publication with a view to an action ; ^ and where the libel consisted of a report of proceedings the publication of which was not privileged, it was held that it might be shown under the general issue and in mitigation that the report, although not cor- rect, was an honest one, and intended to be a fair account of the transaction referred to.^ The general issue put in issue the malice in making the publication,^ and amounted to a denial of the special damage,^ and the seems it must be pleaded in Massachusetts. (Goodwin v. Daniels, 7 Allen [Mass.] 61.) In New York, it must be pleaded. In England, in actions of slander of the plaintiff in his office, profession, or trade, the plea of not guilty will operate to the same extent precisely as at present in denial of speaking the words, of speaking them maliciously and in the sense imputed, and with reference to the plaintiff's office, profession, or trade ; but it will not operate as a denial of the fact of the plaintiff holding the office, or being in the profession or trade alleged. (Reg. Gen. H. T., 4 Will. 4 ; 2 C. & M. 23 ; 10 Bing. 477 ; 3 Nev. & M. 9 ; 5 B. & Adol. 9.) All matters in confession and avoidance shall be specially pleaded. {/i>.) ^ Lucan v. Smith, 20 Jur. 1170 ; 38 Eng. Law & Eq. Rep. 395. - Weaver v. Hendrick, 30 Mo. (9 Jones), 502 ; Smith v. Smith, 39 Penn. St. R. 441 ; Sims v. Kinder, i Cam 279 ; Van Deusen v. Sutphin, 5 Ohio, N. S. 293 ; Swift V. Dickerman, 31 Conn. 285; Williams v. Miner, 18 Conn. 464; Thomas v. Dunaway, 30 111. 373 ; Brunswick v. Pepper, 2 C. & K. 683 ; Remington v. Cong- don, 2 Pick. 310; Gilman v. Lowell, 8 Wend. 573. And in New York under a gen- eral denial and a proper statement in the answer, any circumstance to disprove jnalice may be shown, although it tended to prove the truth of the charge. (Bush v. Prosser, ii N. Y. 347 ; Bisbey v. Shaw, 12 N. Y. 67 ; Dolevin v. Wilder, 34 How. Pr. Rep. 488.) Where there is any, the slightest doubt in the mind of the judge as to whether the facts set up in mitigation tend to disprove malice, he should permit them to be proved, and submit the question of malice to the jury. (/<-/.) 3 See anie, note 2, p. 159. In an action for slander, plea the general issue. JleM, proper to refuse to charge " that if the defendant did no more than repeat a report which originated from the plaintiff's levity and carelessness, the plaintiff could not recover," (Fitzgerald v. Stewart, 53 Penn. 343 ; see apparently contra, Shirley v. Keatly, 4 Cold. [Tenn.] 29.) Plaintiff's motive in bringing the action is immate- rial to the issue on a plea of justification. (Bradley v. Kennedy, 2 Greene [Iowa], 231.) ■* Smith V. Scott, 2 Car. & K. 580; and see East v. Chapman, Mo. & Malk. 46; Charlton v. Watson, 6 C. & P. 385- '= Keegan v. Robson, 6 Up. Can. Q. B. 375. ^ Wilby V. Elston, 8 C. B. 142. A traverse of special damage held unnecessary and improper. (Smith v. Thomas, 2 Bing. N. C. 372 ; see Perring v. Harris, 2 Moo. & Rob. 5 ; Custis v. Sandford, 4 Ir. C. L. 197.) 674 EVIDENCE FOR DEFENDANT. [CH. XVII. general good reputation of the plaintiff (§ 406), but it admitted the inducement ' and the falsity of the charge.^ The defenses of accord and satisfaction, former recovery, truth, and illegality of plaintiff's occupation, must be specially pleaded (§§ 183, 250, 251, 354, 409), to enable the defendant to give evidence of them on the trial. § 404. As to the proof of a justification, it is held that, in an action for slander or libel, the charge com- plained of being the commission of a criminal offense, the same degree of evidence is necessary to sustain a plea of justification as would be necessary to convict the plaintiff in a criminal prosecution for the same offense.^ At least the defendant must prove the crime charged to the satisfaction of the jury,'^ and beyond a reasonable doubt.5 The plea must be substantially proved,^ or the plaintiff is entitled to recover.^ Where the charge is crime, a conviction of the plaintiff of the crime is, in gen- eral, admissible to sustain a justification, but it is only prima facie evidence, and must be excluded if the de- 1 Fradley v. Fradley, 8 C. & P. 572; Power v. Heming, 10 M. & W. 564; Gwynne v. Sharpe, i C. & Mar. 533. "^ Sheahan v. Collins, 20 111. 325. 3 Landis v. Shanklin, I Carter (Ind.) 92 ; Shoulty v. Miller, lb. 554 ; Gants v. Vinard, lb. 476; Newbit v. Statuck, 35 Maine (5 Red.) 315 ; Dwinells v. Aikin, 2 Tyler, 75 ; Seely v. Blair, Wright, 683 ; Steinman v. McWilliams, 6 Barr, 170 ; Willett V. Harmer, 8 C. & P. 695 ; Swails v. Butcher, 2 Carter (Ind.) 84 ; Woodbeck V. Keller, 6 Cow. 118; Forshee v. Abrams, 2 Clarke (Iowa), 571 ; Merk v. Gel- shaeuser, 50 Cal. 631 ; contra, Barfield v. Britt, 2 Jones L. (N. Car.) 41 ; Gorman t. Sutton, 32 Penn. 247 ; Sauter v. McEwen, 8 Blackf. 495 ; Wonderly v. Nokes, 8 Blackf. 589; Folsom v. Brawn, 5 Foster (25 N. Hamp.) 114; Kincade v. Bradshaw, 3 Hawks, 63. ^ Offutt V. Earlywine, 4 Blackf. 460. Evidence of plaintiff's being suspected is not sufficient. (Commons v. Walters, i Porter, 323 ; Knight v, Foster, 39 N. H. 576.) ^ Shoulty V. Miller, i Ind 554; Tucker v. Call, 45 Ind. 31. « Napier v. Daniell, 3 Sc. 417 ; 2 Hodges, 187; 3 Bing. N. C. 77 ; Forrett v, Hanson, i Cr. C. C. 63. Proof of adultery. (Ellis v. Buzzell, 60 Me. 209.) ■* Kincade v. Bradshaw, 3 Hawks, 63. § 404.] PROOF OF JUSTIFICATION. 675 fendant was a witness in the criminal prosecution.^ A plea of justification of libel, that the plaintiff had been guilty of bigamy, requires as strong proof as on an indict- ment for that offense ; but a plea justifying a charge of polygamy, held sustained by proof of actual marriage m two Instances, and of cohabitation and reputation as to a third.^ To sustain a plea of justification of a charge of perjury, the testimony of two witnesses at least, or of one witness and strong corroborating circumstances, are necessary.3 And the defendant must prove not only that the plaintiff's testimony was false, but that it was willfully and corruptly false.^ The corrupt intent, however, is in- ferable from the falsity of the testimony.^ To establish the justification, the testimony which the plaintiff gave on the trial when the alleged perjury was committed, may be received as evidence to be considered by the jury.^ Under an allegation in the libel that the de- fendant had crushed the Hygeist system of whole- sale poisoning, and that several vendors had been con- victed of manslaughter— held that it was not neces- > Mavbee v. Avery, 18 Johns. 352. This was at the time when parties could not be witnesses in their own behalf in civil actions. Where they can be such witnesses probably the exception stated in the text does not apply. •^ Willett V. Harmer, 8 C. & P. 695. 3 Bradley v. Kennedy. 2 Greene (Iowa), 231 ; Steinman v. McWiUiams, 6 Barr, 170 • Byrket v. Monohon, 7 Blackf. 83 ; Woodbeck v. Keller, 6 Cow. 118 ; Newbit. . Statuck, 35 Maine (5 Redf.) 31; Dwinells .. Aikin, 2 Tyler, 75; ^--^/J' Christian, 56 Ga. 351. This rule was somewhat qualified m Kincade .. Bradshaw 3 Hawks, 63 ; Spruil v. Cooper, 16 Ala. 791 ; see 3 Phdhps' Ev. Cowen & Hdl s and Edwards' notes, tit. in index. Slander. 4 M'Kinly v. Rob, 20 Johns. 351- That is to say, he must prove technical per- jury. (Hicks .. Rising, 24 111. 566 ; McGlenary .. Keller, 3 Blackf 488 ; Gorton . . iSler, 51 Barb. 475; Sloan v. Gilbert, Ct. of App. [Ky.] March, 1876; contra. Wood V. Southwick, 97 Mass. 354-) * Hopkins v. Smith, 3 Barb. 599. 6 Newbit V. statuck, 35 Me. (5 Redf.) 315 ; Arrington v. Jones, 9 Port. I39- I" an action of slander, for charging the plaintiff with perjury in a judicial P-^eeding the defendant, on the plea of "not guilty," may prove what the words sworn by the plaintiff were, in mitigation of damages. (Grant v. Hover, 6 Munf. 13.) 6/6 EVIDENCE FOR DEFENDANT. [CH. XVII. sary for the defendant to prove that the system had been entirely crushed, and that proof of the convic- tion of two vendors for manslaughter sufficiently proved the plea, although the evidence as to the death being occasioned by not complying with the printed reg- ulations in some respects varied from the allegation, there being evidence for the jury as to the cause of death.' The admissions of the plaintiff are evidence in support of a defense of justification on the ground of truth. ^ § 405. Where the words laid charge the plaintiff with having committed a certain offense, evidence will not be received that he committed a different offense, either with the same or with other persons.^ As where the plaintiff was charged with adultery with J. S., it was held that proof of adultery with others than J. S. could not be received.'* Where the plaintiff was charged with keeping a house of ill-fame, it was held that evidence of unchaste and lascivious conduct of the plaintiff's family, not estab- lishing the offense, was inadmissible for any purpose.^ And where the charge was of perjury On a certain occa- sion, held that defendant could not justify by proof of ' Morrison v. Harmer, 3 Bing. N. C. 755 ; 4 Scott, 524. - Hill V. Hogg, 4 Allen (N. Brunswick), 108 ; BuUard v. Lambert, 40 Ala. 204. 3 Pallet V. Sargent, 36 N. H. 496 ; Sharpe v. Stephenson, 12 Ired. 348 ; Barthel- emy v. The People, 2 Hill, 257 ; Gregory v. Atkins, 42 Vt. 237. Under a plea of justification for charging plaintiff with fornication with a certain man, evidence that her child is a bastard is not sufficient. (Richardson v. Roberts, 23 Ga. 215.) Where the words charged the stealing of D.'s hay, and the defendant offered evidence to prove that the hay, the subject of the theft so charged, was the joint property of the plaintiff and D., so that in legal effect no such crime was or could have been com- mitted, it was held that as the charge was unequivocally a charge of theft, so intended and so received, the evidence offered by the defendant was inadmissible. (Williams V. Miner, 18 Conn. 464.) * Matthews v. Davis, 4 Bibb, 173 ; and see Walters v. Smoot, 11 Ired. 315. * Bush V. Prosser, 13 Barb. 221. On trial for words imputing unchastity to plaint- iff, it is not permissible, under a plea of not guilty, to prove that the house in which the plaintiff resided was a house of ill-fame. (Hackett v. Brown, 2 Heiskell [Tenn.j 264.) § 4o6.] plaintiff's reputation. 677 perjury on any other occasion than that alleged.' To a charge that plaintiff had had connection with a mare, innuendo been guilty of the crime against nature with a beast, defendant gave notice that he would prove on the trial that plaintiff had had connection with a cow, and on the trial offered to prove the allegation in his notice, the court refused to receive it, either in bar or in mitigation, on the ground that it was not a justification of the spe- cific charge laid, but of another charge distinct as to the subject-matter.^ A libel charging hardness towards the poor, dissoluteness of morals, and habits of vice and calumny, as conclusions deducible from particular in- stances enumerated and arranged in it, cannot be sup- ported by proof' of other instances of conduct, not detailed or allu,ded to in it.^ § 406. The plea of not guilty puts in issue the general character (reputation) ^ of the plaintiff, and therefore upon a plea of not guilty only, the defendant might give in evidence in mitigation the general bad character (repu- tation) of the plaintiff before and at the time of the publication complained of. " Certainly a person of dis- paraged fame is not entitled to the same measure of damages with one whose character is unblemished, and it ' Aldrich v. Brown, 11 Wend. 596; Whittaker v. Carter, 4 Ired. 461. But where the charge was larceny, held that defendant might offer evidence to prove a particu- lar larceny of the same description as that charged. (Adams v. Ward, i Stew. 42.) ^ Andrews v. Vanduzer, 11 Johns. 38. ^ Barthelemy v. The People, 2 Hill, 248. In an action for accusing plaintiff of buying and selling by unsealed weights and measures, and also of the crime of gross fraud and cheating at common law, a justification on the ground that the charge was true cannot be supported by evidence that plaintiff " applied to a person to take some damaged meat and sell it, without letting it be known that plaintiff was con- cerned in the transaction." (Chapman v. Ordway, 37 Mass. [5 Allen], 593.) Where the charge was : " The investigations are not yet ended, but the chief owners believe they have been outrageously swindled." Proof that the chief owners believed they had been outrageously swindled was rejected. It was neither justification nor mitiga- tion. To justify, the defendant should prove the truth of the allegation, not the belief of the publisher or his informant. (Wilson v. Fitch, 41 Gal. 363.) ■* As to the difference between reputation and character, see ante, note, p. 84. 678 EVIDENCE FOR DEFENDANT. [CH. XVII. is competent to show that by evidence." ' This prin- ciple so much discussed at an early day, and for a time left unsettled, has since been so well established by au- thority as not now to be open for discussion ; ^ and such evidence was also admissible where the defendant, in addition to not guilty, put in a plea of justification, and ^ Ld. Ellenborough, in v. Moore, i M. & S. 284. In Bracegirdle v. Bailey, (i Fost. & F. 536), there was no plea of justification; plaintiff was put on the wit- ness stand, but not examined in chief — held that defendant could not to mitigate damages, put questions to plaintiff tending to discredit him, nor which went to show his bad character. Evidence of plaintiff's reputation may be received without any other plea than a general deniah (Bennett v. Matthews, 64 Barb. 410.) * Jewett, J., Hamer v. McFarlin, 4 Denio, 509 ; citing Foot v. Tracy, i Johns. 46; Springstein v. Field, Anthon's N. P. 185 ; Paddock v. Salisbury, 2 Cow. 811 ; Douglass V. Toucey, 2 Wend. 352 ; Root v. King, 7 Cow. 613 ; s. c. in error, 4 Wend. 113 ; Richardson v. Northrup, 56 Barb. 105 ; and see Oilman v. Lowell, 8 Wend. 573; Scott v. McKinnish, 15 Ala. 662 ; Pope v. Welsh,- 18 Ala. 631 ; Fuller V. Dean, 31 Ala. 654; Anthony v. Stephens, i Mo. 254 ; Biyan v. Gurr, 27 Ga. 378; Eastland z/. Caldwell, 2 Bibb, 21 ; Bowdish v. Peckham, i D. Chip. 144 ; Bridg- man v. Hopkins, 34 Vt. 532 ; Lamoss v. Snell, 6 N. Hamp. 413; Sawyer v. Eifert, 2 N. & M. 511 ; Seymour v. Morrill, i Root, 459 ; Vick v. Whitfield, 2 Ham. 222; De Witt V. Greenfield, 5 Ham. 225 ; Brunson v. Lynde, I Root, 354 ; Wolcott -'. Hull, 6 Mass. 514 ; Clark v. Brown, 116 Mass. 504 ; Whitney z-. Janesville Gazette, 5 Bissell, 330; Alderman v. French, i Pick, i ; Parkhurst v. Ketchum, 6 Allen, 406; Buford V. McLuniff, i N. & M. 268 ; Henry v. Norwood, 4 Watts, 347 ; Young v. Bennett, 4 Scam. 43; Sanders v. Johnson, 6 Blackf. 50; McCabe v. Platter, 6 Blackf 405 ; Burke v. Miller, 6 Blackf. 155 ; Steinman v. McWilliams, 6 Barr, 170; McNutt V. Young, 8 Leigh, 542 ; Stone v. Varney, 7 Mete. 86 ; Bowen v. Hall, 12 Mete. 232 ; Sheahan v. Collins, 20 111. 325 ; Bell v. Parke, 10 Ir. Law Rep. N. S. 279. As to the rule in England, see Jones v. Stevens (11 Price, 235), where it is said it is not competent to a defendant to plead a justification, as of plaintiff's general bad char- acter, in general and indefinite terms, but he is bound to state facts specially to give the plaintiff an opportunity of denying them ; such pleas are demurrable, and it is an abuse of the court to put them on record ; neither can he any more be permitted to give particular or general evidence of that nature in mitigation of damages, than to plead it in bar of the action. (See Morris v. Langdale, 2 B. & P. 284.) Evidence of general bad reputation of plaintiff was rejected, there being no plea of justifica- tion. (Edgar v. Newell, 24 Up. Can. Q. B. Rep. 215 ; Myers v. Curry, 22 Id. 470.) In an action for slander for charging the plaintiff, a female, with want of chastity, the judge directed the jury " that if they should find that plaintiff had so destroyed her character by her own lewd and dissolute conduct as to have sustained no injury from the words spoken, they might give only nominal damages." (Flint v. Clark, 13 Conn. 361 ; and see Conroe v. Conroe, 47 Penn. St. R. iq8.) If the plaintiff gives evidence of his reputation, the defendant may give counter evidence. (Mitchell v. Kerr, Rowe's Rep. 537.) § 407-] plaintiff's reputation. 679 gave evidence to support it, but failed to establish it/ Whether in New York such evidence would be admis- sible under a general denial, and without any circum- stances in mitigation set up in the answer, does not appear to have been decided in any reported case. In our opinion, to entitle a defendant in the courts of New York to question the general character of the plaintiff, he should state in his answer his intention to give such evidence on the trial.^ § 407. When an inquiry into the reputation of the plaintiff is permissible, it is his general reputation taken as a whole, and not his reputation as to any particular act or in any particular transaction, that is to be inquired of ; 3 and, therefore, evidence cannot be given of his guilt of any specific act of misconduct ;^ as that he had been guilty of false swearing.^ Where the charge was that the plaintiff, a physician, had no professional knowledge or skill, and lost almost all his patients, it was held that proof of particular instances in which the plaintiff had shown want of knowledge and skill, for the purpose of mitigating damages, was inadmissible.^ And although it 1 Hamer v. McFarlin, 4 Denio, 509. It was held otherwise in Jackson v. Stet- son (15 Mass. 48), and that case was followed in Alderman v. French (i Pick. l). But Jackson v. Stetson was questioned in CiUey v. Jenness (2 N. Hamp. 89) ; Whit- aker v. Freeman (i Ftev. 280). (And see Stone v. Varney, 7 Mete. 86 ; 2 Stark. Ev. 878; and the cases cited in the last preceding note.) 2 Anon., 8 How. Pr. Rep. 434 ; and see Stiles v. Comstock, 9 Id. 48. = Steinman v. McWilliams, 6 Barr, 170 ; Shilling v. Carson, 27 Md. 175 ; Wright V. Shroeder, 2 Curt. 548 ; Fitzgerald v. Stewart, 53 Penn. 343 ; Lambert v. Pharis, 3 Head (Tenn.) 622 ; Fountain v. West, 23 Iowa, 9. " Andrews v. Van Denser, il Johns. 38 ; Vick v. Whitfield, 2 Ham. 222; Dewit v.. Greenfield, 5 Ham. (Ohio), 225 ; Lamos v. Snell, 6 N. Hamp. 413 ; Sawyer z/. Eifert, 2 N. & M. 511 ; Burke v. Miller, 6 Blackf. 155 ; Freeman v. Price, 2 Bailey, 115; Ridley v. Perry, 4 Shep. 21 ; Matthews v. Davis, 4 Bibb, 173 ; Brown v. Hall, 12 Mete. 232 ; Parkhurst v. Ketchum, 6 Allen, 406. " Luther v. Skeen, 8 Jones Law (N. Car.) 356. 6 Swift V. Dickerman, 31 Conn. 285. And such evidence would not be admissible for the purpose of showing the professional reputation of the plaintiff, as reputation can only be proved by the direct testimony of those who are acquainted with it, and not by particular facts. {Id.) -680 EVIDENCE FOR DEFENDANT. [CH. XVII. has been said that when a defendant may give evidence of the general bad reputation of the plaintiff, he is not confined to the subject-matter of the defamation com- plained of/ yet in an action for charging the plaintiff with perjury, it was held erroneous to admit evidence of his general bad character for truth." And where the charge as proven was of burning a jail and murdering a man in, it, but there was some evidence that it was only of aiding an escape from the jail, held, that the evidence that the defendant was reputed guilty of the latter offense, was inadmissible for any purpose.^ The defendant imputed to the plaintiff, who was a clergyman, these words : "Mr. S. said the blood of Christ had nothing to do with our salvation, more than the blood of a hog." Held, that testimony tending to prove that the plaintiff denied the divinity of Christ and the doctrine of his atonement, and said he was a created being, a good man and perfect, his death that of a martyr, but that there was no more virtue in his blood than that of any creature, was not admis- sible, either in justification -or mitigation.'* In an action of slander for having called the plaintiff a thief, and say- ing that " he had stolen his (defendant's) spar," the de- fendant, in mitigation of damages, offered in evidence the ' Sayre v. Sayre, i Dutcher, 235 ; Lamos v. Snell, 6 N, Hamp. 413; Sawyer v. Eifert, 2 N. & M. 511 ; see, however, Wright v. Shioeder, 2 Curtis C. C. 548. The inquiry should be confined to the plaintiff's general character for integrity and moral worth, or to conduct similar in character to that with which he was charged by the ■defendant. (Leonard v. Allen, 11 Cush. 241.) ^ Steinman v. McWilliams, 6 Barr, 170. In an action for charging the plaintiff with perjury, the plaintiff proved the speaking of the words charged, and then asked the witness what was the plaintiff's general character, when on oath and when not on oath, as a man of truth. The witness answered the question favorably to the plaintiff. The defendant's counsel then, in cross-examining the witness, asked him what was the plaintiff's general moral character, and the plaintiff objected to the question. Held, that the question ought to be answered, because it was on cross-examination, and because the answer might furnish evidence in mitigation of damages. (Lincoln v. Chrisman, 10 Leigh, 338.) 2 Cole V. Perry, 8 Cow. 214. ^ Skinner v. Grant, 12 Vt. 456. § 4o8.] plaintiff's reputation. 68 1 record of a verdict and judgment in his favor against A., for having taken maliciously, and converted to his own use, the spar in question, it was held that such evidence was inadmissible.' And where the charge was that the plaintiff was a thief, and had stolen the defendant's corn, and the defendant justified, held that evidence that the parties were tenants in common of some corn, and that the defendant had taken secretly, unfairly, and dishonest- ly, more than his share, was not admissible either in justification or mitigation. Mistake, to mitigate, must be mistake of fact and not of law.' § 408. The rule in relation to proof of the character of the plaintiff is, that the inquiry must be made as to his general reputation where he is best known, and the witness ought ordinarily to come from his neighborhood. But what the extent of such neighborhood is, and what credit is to be given to witnesses near and remote, are questions for the jury in determining the general charac- ter of the person in question. ^ One who went to the place of the plaintiff's former residence to learn her character while there, is not competent to prove it ; nor if plaintiff kept boarders at the time of the slander, is evidence of their opinion admissible ; nor can one testify who knows nothing about the plaintiff's reputation but what he heard from witnesses at a prior circuit.^ A jury, in estimating character, are to take the testimony of wit- ' Watson V. Churchill, 5 Day, 256. 2 Bisbey v. Shaw, 15 Barb. 578. " Powers V. Presgroves, 38 Miss. 227. The reputation of the plaintiff, among the minority of his neighbors, is inadmissible. {Id. ; and see Swift v. Dickerman, 31 Conn. 285.) In an action for accusing the plaintiff of unchasteness, where a witness deposes that the plaintiff's character for chastity is bad, it is not necessary that the witness should first have been asked whether he knows the plaintiff's gen- eral character for chastity. (Senter v. Carr, 15 N. Hamp. 35i-) A witness who has stated that the plaintiff's character for moral worth is bad, may be asked, on cross- examination, what immorality is imputed to him. (Leonard v. Allen, li Gush. 241.) * Douglass V. Tousey, 2 Wend. 352. 682 EVIDENCE FOR DEFENDANT. [CH. XVII. nesses who are supposed to be able or capable of reflect- ing, in general terms, the judgment of the public' Proof of the bad reputation of the plaintiff, although of a kind that could not have been caused by the slander, must be of his reputation prior to or at the time of the publica- tion complained of.^ His bad reputation subsequent to the publication complained of may have been the effect of such publication. § 409. The defense of truth must be specially pleaded. The defendant cannot, under the general issue, prove the truth of the publication complained of^ But if the plaintiff" give in evidence parts of the publication not set forth in the declaration, the defendant may, under the general issue, justify such parts.'* The proof of the repe- tition by the defendant of the words complained of, after the commencement of the action, will not confer upon the defendant the right under the general issue to give evidence of the truth of the matter published.^ And under the general issue the defendant cannot, even in mitigation, give evidence of any facts which conduce to prove the truth, or which form a link of evidence to that end.^ The rule was that evidence in mitigation must be 1 Luther v. Skeen, 8 Jones Law (N. Car.) 356. - Douglass V. Tousey, 2 Wend. 352. Where the charge was of general unchast- ity, it was held that under the general issue the general bad reputation of the plaintiff might be shown in mitigation. (Conroe v. Conroe, 47 Penn. 198 ; Kennedy v. Hol- born, 16 Wis. 457.) ^ Beardsley v. Bridgeman, 17 Iowa, 290; Porter v. Botkins, 59 Penn. 484 ; Mc- Campbell v. Thornburgh, 3 Head (Tenn.) 109; Shirley v. Keathy, 4 Cold. (Tenn.) 29; Barrows v. Carpenter, i Cliff. 204; Barnes v. Webb, i Tyler, 17; Small v. Mc- Kenzie, Draper's Up. Can. Rep. 174. Semble, that in slander of title the rule is otherwise. (Watson v. Reynolds, M. & M. I ; see § 354, ante.) ■* Henry v. Norwood, 4 Watts, 347 ; and see Woodburn v. Miller, Cheves, 194; Burke v. Miller, 6 Blackf. 155 ; Stow v. Converse, 4 Conn. 18; Wagner v. Holbrun- ner, 7 Gill, 296. ° Teagle v. Deboy, 8 Blackf. 134. ^ Purple 5V. Horton, 13 Wend. 9; Scott v. McKinnish, 15 Ala. 662 ; Teagle v. Deboy, 8 Blackf. 134; Thompson v. Bowers, i Doug. 321; Swift v. Dickerman. 31 § 409-] PROOF OF TRUTH. 683 such as admitted the charge to be false/ And if a de- fendant failed to establish a plea of justification, he was not entitled to any benefit from the evidence given in support of such plea, and which te^ided to prove the truth of the charge.^ Nor was a defendant allowed to prove in mitigation any circumstance which tended to prove the truth of the charge, although he expressly disavowed a justification, and admitted the falsity of the charge.3 g^t he might prove in mitigation circumstances which induced him erroneously to make the charge com- plained of, and thereby rebut malice, provided the evi- dence did not necessarily imply the truth of the charge, or tend to prove it true,* A defendant justifying, and failing in his proof, may offer evidence in mitigation of Conn. 285 ; Wagstaff v. Ashton, I Harring. 503 ; Grant v. Hover, 6 Munf. 13 ; Henson v. Veatch, I Blackf. 369 ; Else v. Ferris, Anthon, 23; Gilman v. Lowell, 8 Wend. 573 ; and see Owen v. McKean, 14 111. 459 ; Williams v. Miner, 18 Conn. 464; McAlister f. Sibley, 25 Maine (12 Shep.) 474. Particular facts, which might form links in the chain of circumstantial evidence against the plaintiff, cannot be received under the general issue in mitigation of damages. (Wormouth v. Cramer, 3 Wend. 395.) ' Cooper V. Barber, 24 Wend. 105. ' Fero V. Ruscoe, 4 N. Y. 162. 3 Petrie v. Rose, 5 Watts & Serg. 364 ; Watson v. Moore, 2 Cush. 133 ; Regnier V. Cabot, 2 Gilman, 34; Veesey v. Pike, 3 C. & P. 512. ■• Minesinger v. Kerr, 9 Barr, 312 ; Shilling v. Carson, 27 Md. 175 ; Howard v. Thompson, 21 Wend. 319. Plaintiff was arrested for beating his wife, and taken before an alderman; defendant published an account of the arrest, held he might show the circumstances which induced the publication. (Donnelly v. Swain, 2 Phila. Rep. 93.) Defendant may show in mitigation that he copied the matter com- plained against from the journals of Congress. (Romayne v. Duane, 3 Wash. C. C. 246 ; ante, note 2, p. 374.) Held, in action against the publishers of a newspaper, that the defendants could not show that an article similar to that complained of had shortly before been pub- lished in another newspaper. (Sheahan v. Collins, 20 111. 325.) In slander for saying, "Negro Jude said, &c., and it is reported everywhere," evidence that the negro did use the actionable words, held admissible in mitigation as showing de- fendant's motive. (Williams v. Greenwade, 3 Dana, 432.) Where a defendant utters defamatory matter as on his own knowledge, evidence will not be received on the trial that the matter was communicated to him by another. (Elliott v. Boyles, 31 Penn. 65.) The fact of the article being copied from another paper, held a ground for giving only nominal damages. (Davis v. Cutbush, I Fost. & F. 487.) 584 EVIDENCE FOR DEFENDANT. [CH. XVII, damages/ if it is set up in his answer.^ The Code of New York has so far modified these rules as to admit, in mitigation, circumstances which tend to prove the truth of the charge, and to give a defendant (who has claimed the right by his answer), the benefit of evidence in support of a plea or answer of justification, when such evidence falls short of proof, but nevertheless tends to prove the truth of the charge ; ^ and to admit in miti- gation anything which occasioned the defendant, at the time of making the publication, to believe it to be true.'^ It is no excuse that at the time of the publication de- fendant expressed his disbelief in the truth of the charge. 5 § 410. Whether or not the defendant may, in mitiga- tion of damages, give evidence of improper conduct of the plaintiff calculated to invite the language complained ' Morehead v. Jones, 2 B. Monroe, 210 ; Landlis v. Shanklin, i Smith (Ind.) 78; West V. Walker, 2 Swan (Tenn.) 32 ; Thomas v. Dunaway, 30 111. 373 ; Pallett v, Sargent, 36 N. Hamp. 496; contra, Shelton v, Simmons, 12 Ala. 466; Code of Rem. Just. § 535. 2 Russ V. Brooks, 4 E. D. Smith, 644. 3 Bush V. Prosser, 11 N. Y. 347 ; Bisbey v. Shaw, 12 N. Y. 67. And so held in Michigan. (Huson v. Dale, 19 Mich. 17.) 4 Dolevin e/. Wilder, 34 How. Pr. Rep. 488 ; Stanley z'. Webb, 21 Barb. 148; Bennett v. Matthews, 64 Barb. 410. As to the rule that the defendant might show in mitigation belief in the truth not amounting to the actual truth, see Williams tv Miner, 18 Conn. 464; Steesj/. Kemble, 27 Penn. St. R. 112: Hutchinson v. Wheeler, 35 Vt. (6 Shaw), 330; Oilman v. Lowell, 8 Wend. 573 ; Gorton v. Keeler, 51 Barb. 475 ; Byrket v. Monohon, 7 Blackf. 83 ; Cooke v. O'Brien, 2 Cranch C. C. R. 17 ; Turner v. Foxall, Id. 324 ; Fountain v. West, 23 Iowa, 9 ; Huson v. Dale, 19 Mich. 17. Testimony offered by the defendant to show that the words charged were spoken with reference to a bill in chancery which he supposed was sworn to by the plaintiff, and did contain false allegations, but which he afterwards ascertained was sworn to by another, is inadmissible in mitigation of damages. (Owen v. McKean, 14 111. 459 ; but see Purple v. Horton, 13 Wend. 9 ; Van Derveer v. Sutphin, 5 Ohio, N. S. 293.) For the purpose of proving that the owner of a building which has been set on fire had reason to believe that a particular person was the incendiary, and used good faith in making statements charging him with the crime, evidence that he was informed of declarations and acts of the suspected person, tending to show his guilt, is competent. (Lawler v. Earle, 5 Allen [Mass.] 22.) = Burt V. McBain, 29 Mich. 260. §411.] IN MITIGATION. 685 against, and affording just ground to believe it true, seems doubtful. In one case, for words impugning the chastity of the plaintiff's wife, the defendant was per- mitted to prove, in mitigation of damages, that the plaintiff's wife and an unmarried man had lived together alone in one house.' § 411. It has been held in some cases that the de- fendant may, in mitigation of damages, prove that prior to the publication complained of, a general report or suspicion existed that the plaintiff had committed the act charged." The decisions to the contrary are quite numerous.3 What two or three persons had said in ' Reynolds v. Tucker, 6 Ohio, N. S. 516 ; and see Bradley v. Heath, 12 Pick. 163; Haywood v. Foster, 16 Ohio, 88 ; Minesinger v. Kerr, 9 Barr, 312 ; Shoulty v. Miller, i Carter (Ind.) 544; Leicester v. Walton, 2 Camp. 251; but such evidence •vvas rejected, although the defendant also proposed to show that at the time the words were uttered a public investigation was going on, involving an inquiry into the plaintiff's conduct, and was a subject of public remark. (Knight v. Foster, 3g N. H. 576 ; and see Regnier v. Cabot, 2 Oilman, 34.) Evidence of the defendant's suspicions on the subject is inadmissible. (Henson v. Veatch, i Blackf. 369.) '^ Wetherbee v. Marsh, 20 N. Hamp. 561 ; Case v. Marks, 20 Conn. 248 ; Bridg- man v. Hopkins, 34 Vt. (5 Shaw), 532 ; Van Derveer v. Sutphin, 5 Ohio, N. S. 393 ; Young t/. Slemons, Wright, 124; Knobel v. Fuller, Peake Ad. Gas. 139; Gook v. Barkley, i Penn. N. J. Rep. 169; Smith v. Richardson, Bull. N. P. 9 ; Fuller v. Dean, 31 Ala. 654; Morris v. Barker, 4 Harring. 520 ; Springstein v. Field, Anthon, 185 ; Foot V. Tracy, l Johns. 45 ; Henson v. Veatch, i Blackf. 369 ; Commons v. Walters, i Port. 323 ; Fletcher v. Burroughs, 10 Iowa (2 With.) 557 ; and see Moyer V. Pine, 4 Mich. 409 ; Bradley v. Gibson, 9 Ala. 406 ; Sheehan v. Collins, 20 111. 325 ; Strader v. Snyder, 67 111. 404; Peterson v. Morgan, 116 Mass. 350 ; Clarke v. Brown, Id. 504; Wilson v. Noonan, 35 Wis. 321. 3 Young V. Bennett, 4 Scam. 43; Sanders v. Johnson, 6 Blackf. 50; Fisher v. Pattison, 14 Ohio, 418 ; Scott v. M'Kinnish, 15 Ala. 662 ; Anthony v. Stephens, 10 Mo. 254 ; Haskins v. Lumsden, 10 Wise. 359 ; Beardsley v. Bridgman, 17 Iowa, 290 ; Pease v. Shippen, 15 Abb. Law Jour. 115 ; Alderman v. French, i Pick, i ; Bowen -v. Hall, 12 Met. 232; Hancock v. Stephens, 11 Humph. 507 ; Skinner ads. Powers, I Wend. 451 ; Matson v. Buck, 5 Cow. 499 ; Watkin v. Hall, 9 Best & S, 279. Where the charge was of corrupt practices, and only general issue pleaded, defend- ant's counsel was not permitted to ask a witness if he had heard that plaintiff was addicted to such practices. (Thompson v. Nye, 20 Law Jour. Q. B. 85; 16 Q. B. j^e ) In V. Moor (i M. & S. 284), the defendant was permitted, on cross- examination of a witness for the plaintiff, to ask whether he had not heard reports of plaintiff being guilty of offenses similar to the offense charged. See Taylor on Evidence, 315, 2d ed., where the English authorities are collected, and are by the 44 686 EVIDE^XE FOR DEFENDANT. [CH. XVIL relation to plaintiff's character, was held inadmissible.' In case for slander, imputing gross ill-treatment by the plaintiff of a female, under the plea not guilty, the evi- dence of the plaintiff showing that the words were spoken in answer to an inquiry whether he had not im- puted, &c., and inquiry by the plaintiff who was the author of the slander, the defendant replying that he had heard of the imputation, and that the report was current, and that he had reason to believe it true, but refused to give up the reporter, held that the defendant might show, by cross-examination, that such report had in fact pre- vailed, and was a topic of conversation before the utter- ing of the words by the defendant. ' In an action for a libel, the defendant, to support a charge against the plaintiff of having set up and supported an infidel club, offered evidence that a club to which the plaintiff be- longed had the general character of an infidel club. It was held that such evidence was not admissible either to justify or mitigate the charge.^ § 412. The defendant may, in mitigation of damages, show the plaintiff's standing and condition in society.* ^ 413. The declaration of a defendant, made /rz'^r to the publication complained of, may be given in evidence to mitigate the damages ; as where the defendant had employed a printer to print the libel complained of, it was held that he might, to show the absence of ill-will, author said to preponderate in favor of the reception of the evidence of general suspicion in mitigation. (And see Wohiier v. Latimer, i Jurist, 19.) ' Regnier v. Cabot, 2 Oilman, 34. - Richards v. Richards, 2 Mo. & Rob. 567. s Stow V. Converse, 4 Conn. 17. 4 Lamed v. Buffington, 3 Mass. 546 ; Whitney v. Janesville Gazette, 5 Bissell, 330; Bodwell V. Swan, 3 Pick. 376; Howe v. Periy, 15 Pick. 506; Bennett v. Mat- thews, 64 Barb. 410. The Supreme Court of Pennsylvania (Moyer v. Moyer, 49 Penn. St. 210) held, in an action of slander for charging perjury, evidence of plaint- iff's general character for truth was admissible in mitigation. (And see i Up. Can. Law Jour. N. S. 248.) § 41 3-] IN MITIGATION. 6Sy and to mitigate damages, prove that at the time of the employment he instructed the printer to keep the matter as private as possible/ But declarations or acts of a de- fendant, made sitbsequently to the publication complained of, cannot be received in mitigation.^ A full and un- qualified retraction of the libel complained of is admis- sible in mitigation.3 ' Taylor v. Church, 8 N. Y. 452 ; and see Stallings v. Newman, 26 Ala. 300 ;: Lick V. Owen, 47 Gal. 252; Hagan v. Hendry, 18 Md. 177 ; Bond v. Douglass, 7 G. & P. 629 ; Vinners v. Serell, Id. 163 ; Inman v. Foster, 8 Wend. 602. An in- junction of secrecy upon the person to whom the publication was made held not to- be a defense. (McGowan v. Manifee, 7 T. B. Monr. 314.) It was held proper, on the trial of an indictment against the editor of a newspaper for libel, to ask a witness if at the time of the publication the defendant was not absent and knew nothing of the transaction. (Commonwealth z-. Buckingham, Thacher's Grim. Gas. 29.) Under a defense of truth it cannot be shown that the publication was without defendant's; knowledge. (Buckley v. Knapp, 48 Mo. 152.) Defendant may in mitigation set up that the publication was confidential. (Jeflras v. McKillop & Sprague Go. 4 Sup. Gt. Rep. [T. & G] 578; 9 Sup. Gt. Rep. [2 Hun], 351.) '^ Scott V. McKinnish, 15 Ala. 662 ; Bradford v. Edwards, 32 Ala. 628. In Yeates V. Reed (4 Blackf. 463), an action against husband and wife for slander by the wife, it was held that the husband's efforts to prevent the circulation of the libel com- plained of was not receivable in mitigation ; it was no mitigation of the guilt of the wife. The defendant cannot, to support his plea of justification, give evidence of transactions or conversations between himself and others, to which the plaintiff was not privy. (Jenkins v. Gockerham, i Ired. 309 ; and see Barfield v-. Britt, 2 Jones Law [N. Gar.] 41.) And where defendant charged plaintiff with being a thief, a rogue and a swindler, and justified on the ground that plaintiff had bought goods of him, defendant, and resold them, but had not paid defendant for them, held that defendant could not prove these facts, they not being known to the persons present when the charge was made. (Martin v. Loei, 2 Fost. & F. 654 ; and see Wakelin v^ Morris. Id. 27.) Where the action is for accusing plaintiff of stealing, the general bad character of plaintiff is not admissible in mitigation. (Williston v. Smith, 3, Kerr [N. Brunswick], 443 ; see § 415, post.) ^ Hotchkiss V. Oliphant, 2 Hill, 510. But hesitation, lurking insinuation, an at- tempted perversion of the import of the language of the first libel, or a substitution of one calumny for another, only aggravate the offense ; and if the publisher, when advised of his error, hesitate to correct it, the case rises into a case of permeditated wrong, and he becomes a fit subject for exemplary punishment. {Id.) A subsequent explanation and qualification of the slander is not competent evidence under a plea of justification. (Luthan v. Berry, i Port, no; and see Alexander v. Harris, 6 Munf. 465.) Defendant's subsequent assertions of the truth of the slander are not evidence of its truth. (Rice v. Withers, 9 Wend. 138.) As to the effect of a with- drawal, or recantation, see Larned v. Buffington, 3 Mass. 546 ; Brown v. Brown, 3. Ind. 51S; Alderman v. French, i Pick. 19; Kent v. Bonzey, 38 Maine" (3 Heath), 435 ; Mapes v. Weeks, 4 Wend. 663 ; 6 & 7 Vict. ch. 96 ; 8 & 9 Vict. ch. 95. In 688 EVIDENCE FOR DEFENDANT. [CH. XVII. § 414. The defendant may set up, in mitigation of damages, that he made the publication in a moment of heat and passion, induced by the immediately preceding acts of the plaintiff.' The defendant may, therefore, in mitigation, prove prior publications by the plaintiff of a provoking character.'' Acts or publications of persons Linney v. Matton (13 Texas, 449), it was held that an immediate retraction of a charge made orally, and in the presence of all who heard the charge, was a defense to an action founded on such charge ; and see Winchell v. Strong, 17 111. 597. "Where one called another a rogue, in the hearing of bystanders, in a moment of ir- ritation, and in reference to his unwillingness to settle a debt due him, and no injury resulted from the words, it was held not actionable. (Artieta v. Artieta, 15 La. An. 48.) In Alabama, retraction before suit is, by statute, made mitigation. (See Brad- ford V. Edwards, 32 Ala. 628.) Insanity, total or partial, in mitigation. (Yeates v- Reed, 4 Blackf. [Ind.] 463.) ' Dolevin v. Wilder, 34 How. Pr. Rep. 448 ; Miles v. Harrington, 8 Kansas, 425 ; Mousler v. Harding, 33 Ind. 176. Defendant cannot set up any act or decla- ration of plaintiff's in mitigation unless such act or declaration formed part of the res gestcE. (Richardson v. Northrup, 56 Barb. 105.) Defendant who would rely upon heat of passion in mitigation of damages, must set forth the acts and language of the plaintiff which he claims caused his passion. It is not sufficient to allege simply that he uttered the words in heat of passion caused by plaintiff. In slander, if the words were spoken through the heat of passion, or under excitement pro- duced by the immediate provocation of the plaintiff, such excitement or passion may be shown in mitigation of damages ; and in Iowa, without alleging them specifically in the answer. (McClintock v. Crick, 4 Iowa, 453 ; and see Steever v. Beehler, i Miles, 146; Brown v. Brooks, 3 Ind. 518; Lamed v. Bufifington, 3 Mass. 546; Mousler v. Harding, 33 Ind. 176.) The fact that the slanderous wards were spoken in a sudden heat of passion, or under great provocation, should be considered by the jury in mitigation of damages. (Powers V. Presgroves, 38 Miss. 227; Ranger v. Goodrich, 17 Wise. 78 ; Duncan v. Brown, 5 B. Monr. 186 ; Traphagen v. Carpenter, i City Hall Reporter, 55 ; Else v. Ferris, Anthon, 23 ; Jauch v. Jauch, 50 Ind. 135 ; Miles v. Harrington, 8 Kansas, 425 ; Fisher v. Rottereau, 2 McCord [So. Car.] 289; Flagg v. Roberts, 67 111. 485 ; Hansler v. Harding, 33 Ind. 176.) 2 Thomas v. Dunaway, 30 111. 373; Wakley v. Johnson, i Ry. & Mo. 422 ; Whittemore v. Weiss, 33 Mich. 348 ; Tarpley v. Blabey, 2 Bing. N. C. 437. The defendant may, in mitigation, give evidence that the plaintiff has been in the prac- tice of vilifying him, and that he was influenced to use the language with which he is charged by the abuse of the plaintiff, and that may be shown by the defendant's declaration. The jury is to determine whether the language which the defendant used was used because of such provocation received from the plaintiff. (Botelar v. Bell, I Md. 173.) The effect of parties publishing defamatory matter one against the other should be to give nominal damages only. (Pugh v. McCarty, 40 Ga. 444 ; Hibbs V. Wilkinson, i Fost. & Fin. 608 ; ante, p. 485, note 6.) Where plaintiff pub- lished in a newspaper reflections on defendant, and defendant replied, held that if in § 4 I 5-] ^^ MITIGATION. 689 Other than the plaintiff are not receivable in mitigation ; as where the plaintiff's father, shortly before the uttering of the slander, used irritating language to the defendant, held that that fact was inadmissible in mitigation/ Where, in an action for libel, the defendant sought to give in evidence libelous publications by the plaintiff of the defendant in newspapers and periodical works ; held, that to make such admissible, it must be shown that they came to the knowledge of the party supposed to be pro- voked thereby, and that the court could not infer from the mere depositing newspapers in the defendant's name, as editor, at the stamp office, under 38 Geo. Ill, c. 78, § 1 7, that they were published by, or came to the knowl- edore of, the defendant." § 415. All the circumstances connected with the pub- lication complained of should go to the jury ;' and there- fore, in an action for a libel, the defendant may give in evidence a former publication by the plaintiff, to which the libel was an answer, to explain the subject-matter, occasion and intent of the defendant's publication, and in mitigation of damages.^ And a previous publication by so doing he said more than was necessary for his defense was a question for the jury. (O'Donaghue v. Hussey, 5 Ir. Rep. Com. Law, 124.) As to provocation in mitigation, see Hackett v. Brown, 2 Heiskell (Tenn.) 264 ; but see cases in note 4. in/ra. 1 Underhill v. Taylor, 2 Barb. 348. ' Watts V. Fraser, 2 Nev. & P. 157. Always, where mitigating circumstances are offered in evidence for the purpose of repelling the presumption of malice, it should be shown that the defendant knew of them at the time he made the charge. (Swift V. Dickerman, 31 Conn. 285 ; Dolevin v. Wilder, 34 How. Pr. Rep. 488 ; Reynolds V. Tucker, 6 Ohio, N. S. 516 ; Whitney v. Janesville Gazette, 5 Bissell, 330.) 3 Cook V. Barkley, i Penn. N. J. Rep. 169. •* Hotchkiss V. Lathrop, i Johns. 286. A prior publication by plaintiff not admis- sible in justification, {/d. ; Southwick v. Stevens, 10 Johns. 443.) Other libels alleged to have been published by the plaintiff of the defendant, not relating to the same subject, are not admissible in evidence, either in bar of the action or in miti- gation of damages, both on the ground that the plaintiff had no notice of such de- fense, as well as of the inconvenience, by leading to a multiplicity of inquiries. (May V. Brown, 3 B. & Cr. 113; 4 D. & R. 670; Tarpley v. Blabey, 2 Bing. N. C. 437 ; see Watts v. Fraser, 7 C. & P. 369; i Mo. & Rob. 449: note 2, p. 688. 690 EVIDExNXE FOR DEFENDANT. [CH. XVII. the plaintifif, to which the alleged libel is an answer, is admissible. The judge, before admitting or excluding it, may peruse it, in order to decide upon its character,' And all papers referred to in a libel, may be admitted for the purpose of explanation and interpretation.- A postscript is admissible.^ Prefixing a previous publica- tion as a text to the libel complained of, does not per se, make such previous publication admissible in evidence.'* § 416. Controversies between the plaintiff and de- fendant prior to the publication complained of, and hav- ing no connection with the subject-matter of the publica- tion, cannot be shown to mitigate the damages.* Nor are previous publications by the plaintiff concerning the defendant admissible in mitigation, unless so immedi- ately preceding the publication by the defendant as fairly to raise the presumption that the defendant made the publication under the impulse of the provocation.^ The defendant may show, in mitigation, that he was provoked to the publication complained of by some contempora- ' Maynard v. Beardsley, 7 Wend. 560 ; 4 Wend. 336. ^ Nash V. Benedict, 25 Wend. 645 ; Mullett v. Hulton, 4 Esp. 248 ; ante, p. 642, note 5. ^ Coleman's Case, 2 City Ilall Recorder, 49. ■* Gould V. Weed, 12 Wend. 12. A subsequent publication cannot be given in evidence to determine the character of a publication, whether it is libelous or not. Tvi'o articles, to be so used, must appear simultaneously in the same paper or book. (Usher v. Severance, 2 App. (20 Maine), 9.) " Lester v. Wright, 2 Hill, 320. In an action of slander for words actionable in themselves, claiming general damages only ; held, that., under the plea of the gen- eral issue, evidence that, during the six years prior to the trial, inveterate feelings of hostility had existed between the plaintiff and defendant, and that the plaintiff had taken every opportunity to irritate the defendant, was inadmissible. (Porter v. Henderson, 11 Mich. 20.) " Maynard v. Beardsley, 7 Wend. 560 ; 4 Id. 336; Gould v. Weed, 12 Id. 12 ; Child V. Homer, 13 Pick. 503; Walker v. Winn, 8 Mass. 248; Ransom v. Christian, 56 Ga. 351. A question to a witness, as to the state of feeling between the parties, must refer to the time of the slanderous speaking. (Justice v. Kirlin, 17 Ind. 588.) If the words complained of were spoken in presence of plaintiff, and he replied to them,' the defendant may give such reply in evidence. (Bradley v. Gardner, 10 Cal. 371.) g^I/.] IN MITIGATION. 69I neous or nearly contemporaneous act or declaration of the plaintiff. Simply to show provoking acts or declara- tions by the plaintiff prior to the publication by the de- fendant, is not sufficient.' In an action for a libel, in which the plaintiff was charged with being "a degraded scoundrel, liar and blackguard," it w^as held that the de- fendant might be allowed to prove, under the general issue, in mitigation of damages, that the plaintiff, shortly prior to the publication of said libel, charged the defend- ant with false swearing in a cause in which he was a wit- ness.^ In an action of slander against husband and wife, for words spoken by the wife, it is not competent for the defendants to prove that circumstances relating to the plaintiff's conduct were communicated to the husband before the slanderous words were uttered. ^ .§ 417. The defendant cannot, to mitigate damages, give evidence of his poverty ; ^ of his apparent good humor at the time of speaking the words ; ^ that no one believed anything he said;^ that the defendant was not the author of the slander, and that he named the author at the time of the publication ; ' that the publication did 1 Moore v. Clay, 24 Ala. 235 ; Watts v. Fraser, 2 Nev. & P. 157; 7 Ad. & El. 223; I Jurist, 671; I M. & Rob. 449; Moore v. Oastler, I M. & Rob. 451, note; Bourland v. Eidson, 8 Gratt. 27. - Davis V. Griffith, 4 Gill & Johns. 342. '^ Petrie v. Rose, 5 Watts & Serg. 364. * Myers v. Malcolm, 6 Hill, 292; Palmer v. Haskins, 28 Barb. 90; and see cases cited, note, p. 661, n. 4, ante. 5 Weaver" v. Hindreck, 30 Mo. (9 Jones), 502 ; see ante, p. 476, n. 3. Defend- ant being intoxicated at the time of publication, said to be a matter of mitigation. (Howell V. Howell, 10 Ired. 84.) * Howe V. Perr)% 15 Pick. 506 ; contra. Gates v. Meredith, 7 Ind. 440. An impu- tation of theft, made in the presence of one witness only, who stated that he did not believe the charge, held no reason for restricting the damages to a nominal amount. (Markham v. Russell, 12 Allen, 573 ; and see Burt v. McBain, 29 Mich. 260.) The fact that the w^ords were spoken in the presence of one witness only, was held to be receivable in mitigation in Traphagen v. Carpenter, I City Hall Reporter, 55. ' Treat v. Browning, 4 Conn. 408 ; contra, Bennett v. Bennett, 6 C. & P. 5S8 ; Easterwood v. Quinn, 2 Brev. 64 ; but see ante, § 210. Under some circumstances, the defendant may prove, in mitigation, that he derived his information from others (Ken- 692 EVIDENCE FOR DEFENDANT. [CH. XVII. not injure,' or that it benefited the plaintiff;' or that others had previously published the same words ;3 a dec- laration of the plaintiff that the publication did him no injury;'* or that he believed the defendant was not the nedy v. Gregory, I Binn. 85 ; Galloway v. Courtney, 10 Rich. Law [S. Car.] 414 ; but see Thompson v. Bowers, i Doug. 321 ; Anthony v. Stephens, i Mo. 254), and from whom or how he derived his information (Leister v. Smith, 2 Root, 24) \ as that the charge was taken from the journals of Congress (Romayne v. Duane, 3 Wash. C. C. 246) ; or copied from another paper. (Davis v. Cutbush, I Fost. & Fin. 487 ; Howell v. Pioneer Press Co. Min. Sup. Ct. Oct. 1876.) That the defendant published the libel on the communication of a correspondent, held not admissible in mitigation. (Talbutt v. Clarke, 2 M. & Rob. 312.) Where A. published a libel taken from a paper published by B., as an extract from a paper published by C, it was held, in an action brought by C. against A., that the testimony of D. that he had heard A., before he published the libel, ask E. whether he had not seen it in the paper of C, and that E. answered "that he had." was inadmissible in mitigation of damages ; but that E. himself should be produced, if his declaration were proper evidence. (Coleman v. Southwick, 9 Johns. 45.) In an action for the publication of a libel, the defendant asked a news collector, who wrote a part of the article com- plained of, " What inquiries and examinations he made, and what sources of infor- mation he applied to, before making the communication " which tended to charge the plaintiff with dishonesty and bad faith ? Held, that the question was incompe- tent, and that the defendant, as a foundation for such question, could not prove that there was a general anxiety in the community in regard to the facts stated in the publication. (Sheckell v. Jackson, 10 Cush. [Mass.] 25.) And see Bond v. Ken- dall, 36 Vt. 741, where it was held that the defendant could not show the libel was a letter to B. containing the result of inquiries made concerning the plaintiff at request of B. Where the action was for publishing the proceedings of a meeting, held that defendant might prove in mitigation that many severe expressions were used towards plaintiff which he did not include in his report. (Creighton v. Finlay, Arm, Mac. & Og. 385 ; and see Crevy v. Carr, 7 Car. & P. 64.) ' Titus V. Sumner, 44 N. Y. 266. On the trial of an action for slander it is not error to exclude a general offer by defendant to prove that plaintiff's reputation was- not affected by the publication. The evidence would be a mere opinion of the wit- ness, and is not directed to the plaintiff's want of previous good character as affect- ing the amount of the recovery. {Id.) 2 Calhoun v. M'Means, i N. & M. 422 ; Rex v. Woodfall, Lofft, 776. No man shall set up his own iniquity as a defense any more than as a cause of action. (Mansfield, Ch. J., Montefiori v. Montefiori, i W. Black. R. 363; see Stewart v. Wilkinson, 7 Law Times, Si ; Fry v. Bennett, 28 N. Y. 328; supra, note 4. 3 Saunders ^'. Mills, 6 Bing. 213; Hinkle v. Davenport, 38 Iowa, 365. * Porter v. Henderson, 11 Mich. 20. In Quigley v. Phila. &c. R. R. Co. (21 How. U. S. Rep. 209), the defendants gave evidence of declarations by the plaintiff that the matters out of which the libel arose had improved his business. In an ac- tion for libel, the answer denied malice and injury to plaintiff, and set up a justifica- tion. On the trial defendant offered to prove a conversation with plaintiff in which he stated he had sustained no damage, was ready to withdraw the suit, as he had not been injured at all, and that he would have withdrawn it, were it not for his. I 417.] IN MITIGATION. 693 author but only the repeater of the slander ; ' that plaintiff was an enemy of his (defendant's) ^ that plaintiff is a quarrelsome person ; ^ or a malicious person ; ' that plaint- iff had boasted of committing offenses of a like character with that charged; 5 that plaintiff was in the habit of abusing the defendant ; ^ that plaintiff was a common libeler ; ' that plaintiff has sometimes published slander of other persons not the defendant ;^ or has threatened so to do ;9 a former recovery ;^° that defendant declared he could prove the truth of the words ; " or in an action for slander of husband and wife, that they lived unhappily together;" or kept a disorderly house.'^ lawyers, who had taken the case for what they could get out of it, which was ex- cluded, held that it ought to have been received. (Samuels v. Even'g Mail Asso. 13 Sup. Ct. Rep. [6 Hun], 5.) A witness was allowed to testify that when subpoe- naed by plaintiff, he, witness, asked plaintiff, if he thought what defendant had said had been of any injury to him, to which plaintiff answered that he did not know that it had, but it had occasioned some of his creditors to crowd him. (Ostrom v. Calkins, 5 Wend. 264 ; see ante, note i, p. 538; and note 2, p. 692.) 1 Evans v. Smith, 5 Monr. 363. "^ Craig V. Catlet, 5 Dana, 325. 3 Hosley v. Brooks, 20 111. 115 ; M' Alexander v. Harris, 6 Munf. 465. ■* Forshee v. Abrams, 2 Clarke (Iowa), 572. ' Pallet V. Sargent, 36 N. Hamp. 496. « Goodbread v. Leadbitter, i Dev. & Bat. .12 ; Wakley v. Johnson, i Ry. & M. 422 ; May v. Brown, 3 B. & Cr. 113 ; M'Alexander v. Harris, 6 Munf. 465 ; contra, see Botelar v. Bell, i Md. 173. In a suit for slander, for charging the plaintiff with perjury, the defendant cannot show that,, upon a wholly different occasion, the plaintiff called him a liar and a perjured wretch. (Porter v. Henderson, 1 1 Mich. 20. ) ' Maynard v. Beardsley, 7 Wend. 560 ; 4 Id. 336 ; Gould v. Weed, 12 M 12. ^ Forshee v. Abrams, 2 Clarke (Iowa), 571. 9 Cochran v. Butterfield, 18 N. Hamp. 115. 1" The defendant is not allowed to give in evidence, in mitigation of damages, a former recovery of damages against him, in favor of the same plaintiff, in another action for a libel, which formed one of a series of numbers published in the same gazette, and containing the libelous words charged in the declaration in the second suit. (Tillotson v. Cheetham, 3 Johns. 56.) The damages are not to be lessened by the fact that the plaintiff has an action against other persons for publishing the same language. (Harrison v. Pearce, i Fost. & Fin. 567; Frescoe v. May, 2 / points : 1. That to sustain this action, there must be evidence ot express malice, for that such a letter is privileged when written, honestly, though with heat and intemperance ; and 2d. That the verdict was against the weight of evidence. He insisted that there was nothing in proof to show that the defendant was influenced by malicious motives; on the contrary, all the evidence went to show that he was justified in what he had written. Undoubtedly the letter was a very strong one ; but in such cases as this the court would not too nicelvscan the lantjuacje of a master in erivintr tlie character of a servant who certainly had been guilty of such conduct as that proved in evidence. The interests of society re- quired that an unrestrained communication should be allowed in such cases ; and a little unguarded warmth, proceeding from an improper motive, should not itself be a suflicient foundation for an action, supposing defendant had gone a little too far, and had given the plaintiff a character which, strictly speaking, was un- merited, still, considering the privilege which the law gave a master, ought not to be broken in upon, when, by so doing, the most mischievous consequences to society must ensue. Tiie jury M-ere not at liberty from the mere libel itself to infer that the defendant was influenced by malice, because upon that subject some express and positive evidence should have been given. It must be admitted that the case had fairly gone to the jury, includ- ing the proposition tliat they were to consider whether the de- fendant, at the time he wrote the letter, had reason to believe that the facts which he stated were true. He referred to Edmonson v. 736 APPENDIX. Stephenson, Bull. N. P. 8. It was there said, that where words are spoken in confidence and without malice, no action lies; therefore, where A., a servant, brought an action against her former mistress, for saying to a lady, who came to inquire for the plaintiff's character, that she was saucy and impertinent, and often lay out of her own bed, but was a clean girl, and could do her work well; though the plaintiff proved that she was by this means prevented from getting a place, yet Lord Mansfield held that this was not to be considered as an action in the common way, for defamation by words, but that the gist of it must be malice, which is not implied from the occasion of speaking, but should be directly proved ; that it was a confidential declaration, and ought not to have been disclosed. But if, without ground, and purely to defame, a false character should be given, it would be a proper ground for an action. In Weatherstone v. Hawkins, 1 T. R. 110, it was also held that a servant cannot maintain an action against his former master for words spoken, or a letter written by him, in giving a character of the servant, unless the latter prove the malice as well as the falsehood of the charge, even though the master make specific charges of fraud. lie also referred to Kogers v. Clinton, 3 Bos. & Pul. 587; and on the authority of these cases, coupled with a review of all the circum- stances, he contended that the defendant was entitled to a new trial. Abbott, C. J. — I am of opinion that in this case there ought to be no rule granted. I should be sorry that any decision in which I took part should have the effect of breaking down or lessening that which I consider to be a very wholesome rule of law, namely, that a character written by a former master to a person instituting an inquiry, with a view to take a dismissed servant into his serv- ice, is to be considered as a privileged communication, unless it can be shown in some way that the statement of such character proceeds from a vindictive motive. The master in such cases is privileged in what he does ; and, in my mind, it is of the utmost importance to society that he should be so privileged. The error is too often committed on the other side; persons are more apt to conceal the faults of servants, in order that they may not be deprived of another service, than to enlarge and expatiate upon their misconduct in a manner that might be justifiable. If, upon APPENDIX. Ill reading this letter, a judge could take upon himself to say that it bore nothing upon the face of it manifesting a vindictive motive, I should think he would have been bound to tell the jury that it was a privileged communication, and upon the general issue they ought to have found a verdict for the defendant. But I cannot say, upon reading this letter, that I do not see upon the face of it something leading me to suppose there was an improper motive in the mind of the defendant; and if the contents of the letter were such as to make it a point in any reasonable degree doubt- ful, then that doubt must be submitted as a question of fact to the jury ; it must be for them to say, upon the view of the whole case, whether this letter did proceed from vindictive motives, or was founded in that correct and proper motive which the law permits. I think this letter does contain such expressions as were fit for the consideration of the jury upon the question of malice, and the question was so presented to the jury. It was left to them to say, upon the whole of the case, whether or no they thought tlie defendant was actuated by malicious motives at the timer They have, upon the view of the whole of the evidence, found that he was influenced by such motives ; and the credit due to the witnesses was a matter peculiarly for their consid- eration, and I cannot say that they have come to a wrong con- clusion. "We are not to take it for granted that the question was not fitly left to them as a question for their consideration. I am of opinion, therefore, that we ought not to disturb this verdict. Bayley, J.— It appears to me that this question was most properly left to the jury. The point upon the general issue was, whether, at the time the letter was written, there was malice in the mind of the defendant in writing it. He is fully warranted in o-ivino- an answer to the questions which are put to him ; and, in a temperate manner, stating everything which may have a fair tendency to enable the person to whom the letter is written to exercise a discreet judgment upon the subject. But looking at this letter, it appears to me there is a degree of heat and warmth and particularity in it, which was not called for by the applica- tion made for the character of the plaintiff; and that being left for the consideration of the jury, it appears to me to have been the proper point for their determination on the general issue. 738 APPENDIX. Upon the other question, whether the facts were true or not, that would depend upon the credit given by the jury to the witnesses. There was conflicting evidence on the one side and the other ; there was the evidence of the man-servant on the one hand ; and they had the opportunity of hearing his testimony, and seeing the manner in which it was delivered. There were several witnesses certainly on the part of the defendant, and after hearing their testimony, the jury had an opportunity of seeing on which side the balance of truth lay. If it had been suggested to us that the learned judge had been dissatisfied with the conclusion to which the jury came, it would have been right for us to have made some application to him upon the subject ; but I do not find that anything of that kind is suggested. Not knowing that there is any dissatisfaction in the mind of the learned judge, we cannot act upon the notion that there is any such dissatisfaction existing. HoLROYD, J. — In cases of this kind, the proof certainly lies upon the party bringing the action, where the alleged slander, whether by words or in a letter, proceeds in consequence of an application to a master for the character of a dismissed servant to show that that there was malice in the mind of the defendant, either by direct evidence, or by some other circumstances from which malice •can be collected. In the absence of such proof, the defendant would be either entitled to a verdict or the plaintiff must be non- suited. If that were the case in the present action, the defendant would be entitled to succeed, and the court would grant a new trial. But the letter in this case contained such matter as was sufticient to be left to the jury to say whether the defendant was influenced by malicious motives ; and they having drawn a con- •clusion which appears to me to have been perfectly right, I think we ought not to disturb their verdict. Best, J. — I am of the same opinion. This motion is made on two grounds : first, that this letter is privileged ; and, second, that the verdict is against the weight of the evidence in the cause. There is no doubt that if a man gives a character of a servant, it is prima facie privileged, and the party injured must go on to show that the character was given from motives of malice. The learned judge at the trial very fairly left it to the jury to consider APPENDIX. 739 whether this letter was written with a malicious intention. He also left the whole of the evidence for their considerat.on Ihe letter itself imported sufficient matter to ra.se the queshon o malice or no malice ; in this respect the case of Rogers »^ Clifton is in point. No doubt the defendant, as a clergyman and mag s- tratemic-ht be very justly incensed at the proceedings of he pT^ntT/in the bosom of his own family ; but if he exceeded the bounds of discretion in the expression of his opinion, he must be answerable for the consequences. ^^^^ ^^^^^^^ King's Bench, A. D., 1822. KING V. TOWNSEND. A voluntary affidavit made before a justice of the peace, is not a judicial pro - cei^ng and therefore if such an affidavit contains libelous matter, .t . actionable. . . . ,., i To describe a man as an informer in sucli a publication is Ubelous. Where speci 1 damage was laid, in that A. B. had .lolly ceasei U, 5 n., 555 n. CATCHING INDIANS, charge of being engaged in, 267. CATERPILLAR, charging an innkeeper with being a, 303 n. CATTLE, marks on, altering, involves moral turpitude, 223. charge of altering is actionable, 252. charge of mismarking, not actionable, 230. CAUSE, import of the term, 205. charge of being the cause of suicide, 259. justifying a charge of causing an act to be done, 362. See Reasonable and Probable Cause. CAUSES of action, joinder of, 597, 728. to be numbered, 598. CAUTION not to trust another, when privileged, 447. not to marry, 450. not to purchase a bond, 268, 458. CERTAINTY, how it may be insured, 80 n., 578. what required, 192. excessive, 192 n. in statement of words published, 576. innuendo, to insure, 578. in justification on ground of truth, 609. CHAMPERTOR, actionable, 252. meaning of the term, 183 n. CHANGING place of trial, 512. CHARACTER, meaning of the term, 84 n., 85 n., 86 n. necessity of protecting, 103 n., 109 n. evidence of, 679. to servant, right to give, 462, 733. no action for refusing to give, 465 71. See Master and Servant. CHARGE, by w^ay of question, 234. CHARITIES, report of inspector of, 410 n., 494 n. CHASTE CHARACTER, meaning of the term, 85 n. INDEX. 757 CHASTITY, charge of, want of, not actionable, 248. actionable, if in writing, 267, 290. CHEAT, charge of being, not actionable, 255. what is not a justification of a charge of being, 362 n. CHEATER, charge of being, actionable if applied to one in trade, oO.J. charging an attorney with being, is actionable, 303. CHEATING, charge of, not actionable, 230, 230 «., 258. when actionable, 300, 313. at cards, charge of, is actionable, 266 n., 269. CHECK, action for dishonoring, 62 n. CHILD, parent not answerable for wrongs by, 166 n. charge of begetting, 254. charge of starving, 301. punishing, for libeling parent, 265 n. See Infant. CHRISTIANITY, introduction of, into England, 104. part of the common law, 104. CHURCH, charge of robbing, 241 n. charge of having been deprived of the ordinances of, 2bb. charge of desecrating, 310. discipline, proceedings in course of, are privileged, 411, 413. privilege of, only applies where both parties members of the church, 413. See Desecrating Cburch.' CHURCH MEETING, proceeding at, how far privileged, 393, 413 n. CHURCH WARDEN, language concerning, 184 n., 313 n. CIPHER, libel in, 179 u. CLAPPING hands, 61 n. CLASS of jjersons, language concerning, when actionable, 175 n. CLERGYMAN. See Minister of the Gospel. CLERK in a gas company, words concerning, 295. See Merchant's Clerk. CLIENT, when not responsible for acts of attorney, 166 w. charge of divulging secrets of, justifying, 367. attorney may vindicate reputation of, 431 n. CLIPPER and coiner, meaning of the terms, 196 n., 200. CLOTHES, charge of stealing, 241 n. COACH BUILDER, words of, 296. COBBLER, charge of being, actionable, 308. COCKBURN, Lord Chief Justice, his views of the law of libel, 491 n COLLECTOR, U. S., language concerning, 315. COLLOQUIUM, what it is, 171, n. when necessary, 192 n. must be proved, 653 n. 758 INDEX. COLLOQUIUM— continued. sometimes used as synonymous with inducement, 567. innuendo, cannot perform office of, 580. See Inducement. COLOR, justification must give, 602. COMMENT, right of, 322 n., 410 ». See Criticism. COMMERCIAL AGENCY, publications hy, how far privileged, 456. justification of libel by, 617. COMMISSION to examine witnesses, 518, COMMISSIONER, words concerning, 314, 315. of police, report of, not privileged, 410 ». (0 inquire into corporations, report of, not privileged, 410 n. in bankruptcy/, reports of proceedings before, privileged, 409. COMMITTEE of House of Lords, is a public court, 409. COMMON BARRATOR, not actionable, 224 n. actionable, 252, 305. COMMOxN riLCIIER, charge of being, not actionable, 255. COMMON LAW, ecclesiastical law part of, 67 n. Christianity part of, 104. COMMON SENSE in construing language, ISO n. COMMON WHORE, charge of being, actionable, 249 n. COMPANION of cut-throats, not actionable, 255. COMPANY, unincorporated, when members of, cannot maintain action for libel, 175 n. See Corporation. COMPLAINT, corresponds to declaration, 553. general requisites of, 550 n., 553, 598. need not aver facts charged or implied by the language pub- lished, 555 n., 560. the usual preliminary panegyric on plaintiff is superfluous, 559 n. inducement, 554. in England, 555. in New York, 556. where there are several counts, 557. to be stated in a traversable form, 558. may be put in issue, 558. superfluous, 559. of plaintiff^s occupation, 562, 564. in action fur charge of false swearing, 565. should show that the language is concerning the plaintiff, 561, 567. INDEX. 759 COWPhAWT— continued. colloquium, sometimes used as synonymous with inducement, 567. must allege a publication, 569. publication, how alleged, 569, 571. alleging place of publication, 572. alleging time of publication, 572. to allege absence of legal excuse, 572. to set out the language published, 573. where words published in a foreign language, 575. need not set out obscene words, 576. degree of certainty required in setting forth the language pub- lished, 576. need not set forth the whole of the matter published, 577. allegations of, must be certain, 578. innuendo, 171 n., 578. cannot perform office of colloquium, 580. cannot introduce new matter or change meaning, 578 n. cannot extend the meaning, 579, 582. to point meaning of ambiguous language, 586. rejecting, 588, 593. warranted, 588. unwarranted, 589. evidence to explain, 590. cannot make language apply to plaintiff, 590. may show language applies to a class, 591. when to allege special damage, 319, 593. what causes of action may be united in, 550, 556 n., 597. for slander of title, 344 n. to court of justice and complaint made elsewhere, distinction between, 420 n. striking out, for plaintirs refusal to answer proper question, 672 n. supplemental, when allowed, 598. demurrer to, 618. difficult to sustain, 294 n. for malicious prosecution, 727. COMPROMISE, court will enforce, 478, 518. CONCEALER of felony, charge of being, 253 7i. CONDITION in life of parties, effect of, 187, 278, 659, 661, 686, 691. evidence of, on face of libel, 654. CONDUCT unfit for publication, charge of being guilty of, not action- able, 233 n. See Violent Conduct. 760 INDEX. CONFIDENCE, letters merely written in, not privileged, 420 n. law respects communications made in, 436 n., 44*2 n., 449 n. CONGRESS, report of testimony before committee of, 410. See Legislative Proceedings. CONJURING KNAVE, not actionable, 235. CONNECTICUT, false swearing in ecclesiastical court of, 246 n. calling a woman a whore is actionable in, 248 n. proof of malice in, 657. repetition of slander in, 355. CONSENTING fo a crime, charge of, not actionable, 242 w. CONSOLIDATING actions for slander or libel, 435, 512, 546 n., 550 n. CONSORTIUM, of husband and wife, loss of is special damage, 318. vicinorum, is not special damage, 319. CONSPIRACY, what does not amount to a charge of, 201. members of the House of Lords, as such, cannot be guilty of, 375 n. CONSTABLE, words concerning, 292, 312, 313, 415 n. words spoken on giving in charge of, are privileged, 418 n. See Police Officer. CONSTl^UCTION of language, 109. written and oral, 176. when not allowed, 171 n. in popular sense, 177 n. when ironical, 169 w., 179 n. how affected by bad grammar, 180 n. by judicial notice, 180 n. explanatory circumstances, effect on, 181 n. to be consistent with the whole of the matter published, 187 n. how affected by the condition in life of the person spoken of, 187, 278. on demurrer, 194 «., 271. of plea of justification, 608 n. when for the judge and when for the jury, 523. what to guide the jury in, 177 n., 182 ;^., 186 n. effect of time, place, and usage upon, 182 n. meaning of the publisher, how far material to, 187. when ambiguous and when unambiguous, 188. for court and jury, not witnesses, 650. in mitiori sensu, 190. according to the natural meaning, 193. courts do not strain to find an innocent meaning, 194. after verdict, 195. See Language ; Jury ; Meaning. INDEX. 761 CONSTRUCTIVE publication, 150 n. CONTAGIOUS DISEASE, charge of having, 259. CONTEMPT in publishing reports of proceedings of a court of justice, 405 n. in writing private letter to a judge respecting a cause pending before him, 383 n. of court, 394 n., 406 n. in publishing disparaging comments on courts or judges, 406 n. CONTEXT, to be considered in construing language, 181 n., 186 n. CONTRACT, words published with intent to cause breach of, 328. CONTRADICTION, delay in publishing. 483 n. CONTRIBUTION, none between wrong-doers, 552. CONVENTIONAL ETIQUETTE, charge of breach of, 272. CONVICT, actionable, 227. See Returned Convict. CONVICTED FELON, meaning of the term, 201. report of speech of, not privileged, 411. CONVICTED SCOUNDREL, charge of being, actionable, 201 «. CONVOCATION, charge of bishop in, 423 n. COOPER, words concerning, 293 n. CORN, charge of carrying away, 205 n. charge of stealing, 210 n., 240, 242. CORN-FACTOR, words concerning, 300, 455. CORN-STEALER, charge of being, is actionable, 253. CORONER, not liable for slander or libel, 395. criminal information granted for publishing minutes of inquest before, 405 n. report of inquest by, 410 n. CORPORATIONS are legal persons, 501. their rights and duties assimilated to natural persons, 501. can act only through agents, 501. may be sued for acts of agents, 502. libel, malicious prosecution and trespass, 502. may have a reputation, 503. language concerning, 503. action by, for libel, 503. cannot be guilty of slander, 505. may be guilty of libel, 506. suits by married women against, 502 n. criticism of to be encouraged, 504 n. may act maliciously, 506. See FiKE Company ; Foreign Corporation. 762 INDEX. CORRUPT, charging a judge with being, is actionable, 312. agreement, charge of mal/i/s, charge of, against a counsellor, justify- ing, 367. See Counsellor. DOCTOR. See Physician. DOCUMENTS, inspection and production of, when ordered, 513. DOG, charge of stealing, 208. charge of killing, 238 n. charge of having intercourse with a, 184 n., 251. barking of, Gl n. DOME BOOK of King Alfred, 105 n. INDEX. 769 DOMESTIC SERVANT, words concerning, ^05. See Servant. DROVER, words concerning, 298 n. DRUGGIST, words of, 274. DRUMS, beating, 61 n. DRUNKARD, charge of being, is actionable, 264, 309. DRUNKENNESS, charge of, when actionable, 259, 295. not a defense to an action for slander or libel, 477. is mitigation, 477, 691 n. See Master Mariner. DRUNKEN WHORE, held actionable, 249 n. DUEL, calling one coward for refusing to fight, is actionable in Ten- nessee, 220. DUFFING, charge of, 610. DUNCE, actionable, spoken of a lawyer, 307, DUTY, the opposite of a right, 87. not a person or a thing, 87. object of, 88. and right reciprocal, 88. pertains solely to persons, 88. performance of, compulsory, 88. how to be performed, 88. in some sense the result of law, 89. every act in performance of, &c., 89. different under different laws, 90. law prescribes, 94. impossibility of defining, 94. charge of not paying, 267. publication in discharge of, 439 n. DYER, words concerning, 297, 298. EARTH, charge of stealing, 208. ECCLESIASTICAL courts, powers of, 67, 106 n. establishment of, 105. jurisdiction of, in cases of defamation, abolished, 67. law, part of English common law, 67 n. no status in New York, 67 n. EDITOR of newspaper, liability of, 157 n., 167 n.. See Newspaper. EFFIGY, is language expressed in signs, 62. meaning of, 63. publication of, 15 L ELECTION, charge of bribery to secure, 253. 770 INDEX. ELECTOR, privilege of, 475. ELOPEMENT, charge of, 2G7 n. EMBEZZLEMENT, what amounts to a charge of, 213, 207, 650 n. charge of, not actionable, 213 n,, 257, 315. EMBRACERY, what amounts to a charge of, 201. charge of, involves moral turpitude, 223. EMOLUMENT, loss of, is special damage, 318. EMPIRIC, judicial notice of meaning of, 180 n. charge of being, is actionable, 30G. EMPLOYER and employee. See Master and Servant. EMPLOYMENT, loss of, is special damage, 318. See Condition ; Trade. ENCHANTER, charge of being, not actionable, 255. ENGINEER, charge of drunkenness against, 259 n. ENGLISH WORDS, court will inform itself of meaning of, 181 n. ETIQUETTE, charge of a breach of, not actionable, 272. EVIDENCE of intention, 127, 127 n., 670. and pleading should correspond, 620. of the language published, 621. for plaintiff, 638. of appointment to ofTice, 291 n. of being duly licensed, 291 n. of publication of defamatory matter, 639. as to innuendo, 590. of witnesses as to meaning, 650. of handwriting, 649. of defendant's liability, 644, 645 n. of inducement, 653. of colloquium, 653 n. of inducement on the face of the libel, 654. of plaintiff's occupation, 654. in aggravation of damages, 656. of plaintiff's good reputation, 656. of malice, 126 n., 657, 660, 662, 670 n. f;ilsehood may be, 658. of plaintiff's rank and condition in society to aggravate dam- ages, 659, of defendant's wealth, 661. of current report that defendant had made charge against plaintiff, 662. of plaintift's distress of mind, 662. of malice to aggravate damages or to defeat defense of privi- lege, 662. INDEX. 11^ EVIDENCE— co«