(SflrtiFU ICaui ^ti^onl ICihtarg Cornell University Library KF 1266.N54 The law of defamation, '*ela"d slander 3 1924 019 248 974 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019248974 THE LAW OF DEFAMATION, LIBEL AND SLANDER m CIVIL AND OEIMIIJ^AL OASES AS ADMINISTERED IN THE COURTS OF THE UNITED STATES OF AMERICA. BT MARTIN L.JifEWELL, COUHSSLOB AT IiAW. CHICAGO: CALLAGHAN AND COMPANY. 1890. Entered according to A.ct of Congress, in tlie year eighteen hundred and ninety, By martin L. NEWELL, In the office of the Librarian of Congress, at Washington, D. C. DAVID ATWOOD, PaiNTEB AHD StEREOTYPEB, UADISON, WIS. PREFACE. In the preparation of this work it has been the design of the writer to glean from the reports of the courts of all English-speaking countries the principal adjudications upon the law of defamation, and to arrange and classify them into one book, containing the entire law of libel and slander as administered in the courts of the United States of America. In the work, it is hoped, will be found everything needed by the attor- neys for the plaintiff as well as for the defendant in the prosecution and defense of all actions for defamation, both civil and criminal. With this object in view, the writer has placed in one chapter a brief historical review of the law, for Jhe use of those members of the profession who take pride in knowing soiuSthingVof its history as well as of the law itself. Following this will be, fouiKt chapters upon the American law of defamation, oral and written ; imputation of crime; want of chastity; im- putations affecting persons in offices, professions and trades; words imput- ing the existence of contagious diseases ; scandalura magnatum, and the slander of property, or, as it is commonly called, slander of title. As there can be no defamation without publication, a chapter is devoted to the discussion of the law upon this subject. Following this will be found chapters upon certainty of iuiputation, construction of language, and inter- pretation of defamatory words, in which the writer has endeavored to pre- sent the law upon these subjects in a clear and intelligent manner. Further on, malice — both malice in law and malice in fact as applied in actions for defamation — is discussed and the law presented, with an additional chap- ter on the repetition of defamatory words. As the law governing parties to civil actions for defamation depends somewhat upon the local jurisdiction, but little more than a sketch of the doctrine at common law is presented. The subject of privileged occasion and communications, it is hoped, will be found fully and satisfactorily presented, as well as the law of criticism and comment and freedom of speech and liberty of the press. Although in many states the common-law system of pleading does not prevail, it must be conceded that it is the foundation of all codes. No mem- ber of the profession can be a successful pleader without some knowledge of the old system. The writer has therefore presented an analysis of the declaration at common law in the action for defamation with appropriate comments upon its component parts, illustrating the subject by a collec- tion of precedents both under the common law and the modern English systems. In the chaptpr upon evidence tlie law has been given both as to the plaintiff's proofs under pleas of the general issue and justification in actions iii IV PREFACE. for words actionable with and without proof of special damage, as well as the defendant's proof in all cases. Upon the subject of damages will be found a full and exhaustive treatise, including general, nominal and exemplary damages, together with matters both competent in mitigation and aggravation of damages, and excessive damages. In the criminal department of the law of defamation the writer has aimed to pi'esent a complete and exhaustive discussion of the subject in all its bearings, together with precedents of indictments and informations. In the plan of the work he has endeavored to present in all cases the gen- eral rules and propositions of the law, and to illustrate the same by digests of American and English cases where the subject of the text has been ap- plied or adjudicated upon. MARTIN L. NEWELL. Chicago, 1890. TABLE OF CONTENTS. CHAPTER r. A BRIEF HISTORICAL REVIEW OF THE LAW OF DEFAMATION. Ancient Laws. § 1. The Mosaic Laws 3 3. The Laws of Ancient Egypt 4 3. The Laws of the Athenians 5 4. The Roman Law — The Twelve Tables 6 5. The Progress of the Roman Law 6 6. The Laws of Sylla 7 7. The Cornelian Law 7 8. The Theodosian Code 8 9. Laws Inflicting Punishment upon Libelers 13 10. The Institutes of Justinian 13 11. The Edict of Valentinian and Valens 14 12. The Difficulties of the Civil Law W 13. The Roman Law of Libel 16 The Law op England. 14. The Ruins of the Roman Law 18 15. Under Alfred and Edgar 18 16. Under the Norman Kings — Bracton 19 17. In the Year Books 20 18. The Statute of Westminster 20 19. The Statutes of Richard 21 20. Libels of the Star Chamber 23 81. Justices of the Peace 25 32. The Rights of Personal Property Include those of Reputation 25 23. Concluding Remarks 25 American Law of Defamation. 84. History of the American Law Identical with the English Law 26 35. An Early Colonial Statute 28 CHAPTER II. EARLY ENGLISH AUTHORITIES. § 1, Early English Authorities 30 2. The Subject Illustrated 80 Vi TABLE OF 0 The Criminal Intent 114 37. The Wrongful Taking 114 88, The Carrying Away 114 89. The Criminal Intent 115 40. Larceny Restricted to Personal Property — Rule of the Com- mon Law , Ijo 41. Statutory Modifications of the Rule ,.,... 117 TABLE OF CONTENTS. IX M"' A. General Rule of the Common Law 117 43. Wild Animals — The Common Law 117 44. Modification by Statutory Enactments 117 45. Import of the Word Steal. 118 46; Other Words of Like Import 118 47. The Moral Effect of the Charge 118 48. Words Imputing the Commission of the Offense — Illustra- tions — American Cases — English Cases 118 49. Words Held Not to Impute the Commission of the Offense — American Cases 130 50. Perjury — The Offense Defined 121 51. The General Rule — Examples 121 53. False Swearing — The Law Illustrated 123 53. The Colloquium — A Substantial Part of the Cause of Action. 133 54. Materiality of the Testimony Charged to be False 133 55. Conclusions 133 56. Words Charging the Commission of the Offense : (1) Without a Colloquium — American Cases — Englisli Cases. (3) With a Colloquium — American Cases 134 57. General Illustrations — Digest of American Cases — What is a Court of Competent Jurisdiction — Materiality of the Testi- mony 136 58. The Offense under Statutes 128 59. Statutory Slander — Imputations under Statutes 133 60. Homicide — The Offense Defined — It is Felonious, when 138 61. The Moral EflFect of the Charge 129 63. Words Imputing the Commission of the Offense — American Cases — English Cases 139 63. Manslaughter — Defined 131 64. Words Charging the Commission of the Offense 131 65. Abortion — Defined 131 66. The Moral Effect of the Charge 131 67. Words Imputing the Commission of the Offense — American Cases 132 68. Accessory — Words Imputing the Offense 132 69. Arson — The Offense Defined 133 70. Words Imputing the Commission of the Offense — American Cases — English Cases 133 71. Attempts to Commit Offenses — Illustrations — American Cases — English Cases 134 72. Keeping a Bawdy-house — Illustrations — American Cases — English Cases 135 73. Bigamy — The Offense Defined 1315 74. Words Imputing the Commission of the Offense— American Cases — English Cases 136 75. Blackmailing — Statutory Offense...., 137 76. Bribery — The Offense Defined 187 77. Bribery of Voters 187 78. Burglary — The Offense Defined 1H8 79. The Moral Effect of the Charge 188 TABLE OF CONTENTS. § 80. Words Imputing the Commission of the Offense — American Cases — English Cases 139 81. Embracery Defined — Falsely Charging the Commission of the Offense is Actionable 139 83. Cheating — The Offense Defined — Words Imputing the Com- mission of this and Kindred Offenses 139 8.S. Counterfeiting — The Offense Defined ... 140 84. Words Imputing the Commission of the Offense 140 85. Embezzlement — The Offense Defined 140 80. Words Imputing the Commission of the Offense — American Cases — English Cases 140 87. Forgery — The Offense Defined — Common Law 141 88. Under Statutes, etc. — General Illustrations — American Cases — English Cases 141 89. Gaming — Keeping a Gambling-house, etc. — The Offense De- fined 142 90. Incest — The Offense Defined. 143 91. The Moral Effect of the Charge 143 92. Words Imputing the Commission of the Offense — American Cases — English Cases 144 93. Kidnaping — The Offense Defined at Common Law 144 94. Libel — The Offense Defined — Examples 145 .95. Rape— The Offense Defined 145 96. The Moral Effect of the Charge 145 97. Words . Imputing the Commission of the Offense — English Cases 148 98. Eobbery — The Offense Defined 147 99. T^ Moral Effect of the Charge 147 too. Words Imputing the Commission, of the Offense — American Cases — English Cases , 147 101. Sodomy — Bestiality — Buggery — The Crime against Nat- ure — The Offense Defined 148 103. The Moral Effect of the Charge 148 103. Words Imputing the Commission of the Offense — American Cases — English Cases I49 104. Soliciting Another to Commit an Offense — Definition 150 105. Words Imputing the Commission of the Offense — American Cases — English Cases 150 Subornation of Perjury 151 Words Imputing the Commission of the Offense — American Cases — English Cases igi Watering Milk — The Charge, when Defamatory ............. 151 106. 107, 103. CHAPTER VII. IMPUTATION OF A WANT OF CHASTITY, OR THE COMMISSION OF ADULTERY OR FORNICATION. § 1. A Result of Statutory Enactments J50 2. Adultery — The Offense Defined '."..'.".". 153 TABLE OF CONTENTS. Xl § 3. Fornication — The Offense Defined 158 4. A Prostitute — The Term Defined 154 5. Certainty of the Imputation 155 6. Illustrations — Digest of American Cases 155 7. SufQciency of the Imputation 155 8. Illustrations — General Digest of American Cases 156 9. The English Law 163 10. Exceptions to the Rule 164 11. Illustrations — Digest of English Cases 165 13. Special Damages under the English Law 166 13. Illustrations — Digest of English Cases 166 CHAPTEE VIII. DEFAMATION AFFECTING PERSONS IN OFFICES, PROFESSIONS AND TRADES. § 1. Where the Imputation Affects Persons in Offices, Professions and Trades 168 2. The Words Must he Spoken of the Person in His Office, Pro- fession or Trade 168 3. The Rule Stated by Andrews, J 169 4. Prejudice and Malice Implied 169 5. Illustrations — Digest of American Cases ; . . . 170 6. Digest of English Cases 173 7. The Words Must Touch the Party in His Office, Profession or Trade 174 8. The Subject Illustrated 175 9. The Words Must be Published while the Party Holds the Office, Pi-actices His Profession or Carries on His Trade 175 10. Requisites of the Imputation 176 11. Imputation upon the Integrity of Persons Holding Offices of Trust 17G 13. Illustrations — Digest of American Cases 177 13. Digest of English Cases 179 14. Meaning of the Terms " Actionable per se" in Themselves, etc. — Illustrations 181 15. Imputation of a Want of Special Knowledge .' 182 16. Dlustrations — Digest of American Cases 182 17. Digest of English Cases 183 18. Attorneys and Solicitors 184 19. Illustrations — Digest of American Cases 184 20. Digest of English Cases 185 21. Barristers 186 23. Digest of English Cases 186 33. Clergymen and Ministers of the Gospel 186 24. Illustrations — Digest of American Cases ■ 187 35. Digest of Egglish Cases 188 26. Medical Men — Physicians — Surgeons — Pharmacists ' 189 27. The Law Stated. 189 Xii TABLE OF CONTENTS. g 28. Illustrations — Digest of American Cases ' *** 29. Digest of English Cases '"0 30. Other Professions and Trades — Architects, Dentists, Teachers, Surveyors, Mechanics, and the Like 191 31. Illustrations — Digest of American Cases • • • - 192 33. Digest of English Cases , 192 33. Imputations upon the Credit of Merchants and Traders 192 34. The Extent of the Rule 192 35. Persons Engaged in Occupations where Credit is Essential. ... 193 36. Illustrations — Digest of American Cases 194 37. Digest of English Cases • ■ • 194 38. Imputations upon the Integrity and Honesty of Merchants and Traders 195 39. Illustrations — Digest of American Cases 196 40. Digest of English Cases 197 CHAPTER IX. DEFAMATORY WORDS IMPUTING DISEASE, ETC. g 1. The Law Stated 198 3. The Law Stated by Metcalf , J 199 3. American Illustrations 199 4. English Illustrations 300 5. The Rule of Construction 200 CHAPTER X. SCANDALUM MAGNATUM. § 1. The English Law 201 2. Illustrations — Digest of English Cases and Ancient Statutes. . 301 CHAPTER XL SLANDER OF PROPERTY. § 1. Slander of Property 303 9. Nature of the Action 304 3. Requisites of the Action 204 (1) The Words Must be False 205 (8) The Words Must be Maliciously Published 205 (3) A Pecuniary Loss Must Occur 205 4. The PlaintifiE's Interest or Title 306 5. The Assertion of a Claim of Title 306 6. Statements of Attorneys and Agents 208 7. The Subject Divided. , . . 208 8. Slander of the Title of Property — Illustrations — Digest of American Cases — Digest of English Cases. 208 9. glander pf the Quality of properly — Illustrations — Digest of American Cases — Digest of English Cases 217 TABLE OF CONTENTS. XUl § 10. Slander of Title of Letters Patent — Copyrights and Trade- marks — Illustrations — Digest of American Cases — Digest of English Cases 224 CHAPTEE XII. PUBLICATION OF DEFAMATORY MATTER. § 1. Publication Defined 327 3. What Amounts to a Publication 238 3. Illustratipns — Digest of American Cases 228 4. Digest of English Cases 232 5. Publication by Telegraph 283 6. Publication to Third Persons Necessary 236 7. Illustrations — Digest of American Cases 236 8. Digest of English Cases 237 9. Husband and Wife as Third Persons 237 10. ALibel — Deemed Published, when 338 11. Illustrations — Digest of American Cases 338 12. Digest of English Cases 238 13. Joint and Several Liability 239 14. The Composer Not Liable without Publication 340 15. The Law Stated by Best, C. J 340 16. Illustrations — Digest of English Cases 341 17. Sale and Delivery of Libelous Compositions. 342 18. Every Sale or Delivery a Separate Publication 243 19. The Author of a Slander Not Responsible for Voluntary and Unjustifiable Repetitions 243 20. Publication, when by Agent, etc 243 21. Illustrations — Digest of American Cases 244 22. Digest of English Cases 244 23. Manner of Publication 245 24. Manner of Sale and Delivery 245 25. Publication by Postal Cards 346 CHAPTER XIII. CERTAINTY OF IMPUTATION. % 1. The Subject Classified *. 248 3. Illustrations — Digest of American Cases 248 3. The Defamation Must be Apparent 249 4. Arson — Illustrations — Digest of American Cases 249 5. Digest of English Cases 250 6. Adulteration of Food 250 7. Attempt to Commit a Felony — Digest of English Cases 250 8. Bigamy — Digest of American Cases — Digest of English Cases 250 9. Embezzlement — Digest of American Cases — Digest of Eng- lish Cases \ ....... 250 Xiv TABLE OF CONTENTS. § 10. False Pretenses — Digest of American Gases — Digest of Eng- • lisli Cases 251 11. Forgery — Digest of American Cases — Digest of English Cases 252 12. Larceny — Digest of American Cases — Digest of English Cases 253 13. Murder — Digest of American Cases — Digest of English Cases 253 14. Perjury — At Common Law — Digest of American Cases — Under Statutes — Digest of English Cases 254 15. Eeceiving Stolen Goods — Digest of English Cases 25G 16. Treason r- Digest of English Cases 256 17. The Person Defamed Must be Certain 256 18. Illustrations — Digest of American Cases 257 19. - Digest of English Cases 257 20. Words Applying to a Class 257 21. The Rule Stated by Chief Justice Shaw 258 22. Illustrations — Digest of American Cases 258 23. Digest of English Cases 259 24. Defamatory Words Applicable to Different Persons 259 25. EfiSgies, Pictures and Caricatures 259 26. Illustrations — Digest of American Cases 260 27. Digest of English Cases '. 261 28. Indirect Defamation 263 29. Illustrations — Digest of English Cases 264 30. The Imputation Need Not be in Positive Language 264 , 31. The Law Stated by Chief Justice Shaw 264 32. Illustrations — Digest of American Cases 265 33. Digest of English Cases 265 34. The Defamatory Charge — How Conveyed 266 35. First, by Adjective Words — Illustrations — Digest of Amer- ican Cases 266 36. Digest of English Cases , ■. 266 37. Second, by a Sentence in the Form of a Question — Illustra- tions — Digest of American Cases 267 38. Digest of English Cases :... 267 39. Third, in a Question and Answer — Illustrations — Digest of American Cases 267 40. Fourth, by Eepeating Gossip — Illustrations — Digest of Amer- ican Cases 268 41. Digest of English Cases 268 42. Fifth, by Signs and Gestufes 268 43. Intention Indicated by Signs, etc 269 CHAPTEE XIV. CONSTRUCTION OF LANGUAGE. § 1. The Construction of Language as Applied to Pleading and Evidence 270 2. First, Words Obviously Defamatory 271 TABLE OF CONTENTS. XV §3. The Defense 271 4. lUustiatioHS — Digest of American Cases 271 5. Digest of English Cases 273 6. Second, Words Ambiguous but Susceptible of an Innocent Meaning ^^i 7. Illustrations — Digest of American Cases 275 8. Digest of English Cases 27") 9. Third, Meaningless Words — Slang Expressions — Words in a Foreign Language or Used in Some Local, Technical or Customary Sense 276 10. Wotds in Foreign Languages 277 11. Slang Expressions — Provincial or Obsolete Expressions 377 13. Illustrations — Digest of American Cases 278 13. Digest of English Cases 278 14. Fourth, Words Apparently Innocent but Capable of a Defam- atory Meaning — Words Spoken Ironically 280 15. The Law Stated by Chief Justice Shaw 380 16. R-ovince of the Court and Jury 281 17. Duty of the Jury in Determining the Meaning 281 18. Illustrations — Digest of American Cases 381 19. Digest of English Cases 283 20. Words Spoken Ironically , 2S6 31. Illustrations — Digest of American Cases 386 23. Digest of English Cases 386 23. Fifth, Words Obviously Innocent 286 34. • Illustrations — Digest of American Cases 287 25. Digest of English Cases 287 CHAPTEE XV. INTERPRETATION OF DEFAMATORY LANGUAGE. § 1. The General Rule , 390 2. A General Rule of Construction — Chief Justice Shaw 39Q 3. The Province of the Court 390 4 The Duty of the Court and Province of the Jury 390 5. The Rule Stated by McAllister, P. J 391 6. Illustrations — Digest of American Cases 291 7. Digest of English Cases 292 8. Defamation Connected with Extrinsic Matters — Proof 393 9. Defamatory Words Explained with Reference to Particular Transactions 293 10. Illustrations — American Cases : A New York Case, Van Rens- selaer V. Dole, 1 Johns. Cas., 379. An Illinois Case, Avers v. Greider, 15 111., 37. A New York Case, Phillips v. Bar- ber, 7 Wend., 489 392 11. Digest of American Cases 394 13. Digest of English Cases 395 13. Words in Common Parlance 396 b XVI TABLK OF CONTENTS. § 14. Illustrations — American Cases: A Minnesota Case, Biakenian V. Blakeman, 31 Minn., 390 29^ 15. Digest of American Cases 297 16. Technical Terms and Cant Phrases — The Rule by Shaw, C. J. 297 17. Illustrations — Digest of American Cases 298 18. Digest of English Cases 298 19. Particular Expressions, Spoken Ironically or Otherwise SOO 20. Illustrations — Digest of American Cases 300 21. Digest of English Cases 300 22. The Intent Immaterial ' 301 33. Illustrations — Digest of American Cases 301 24. The Former Rule in England 301 25. The Rule Abolished 302 26. Progress of the Law 303 27. Defamatory Words to be Taken in the Sense which Fairly Be- longs to Them 304 28. The Rule of Construction '. 304 29. Defamatory Matter to be Taken as a Whole 305 30. Illustrations — American Cases: A New York Case, Dexter v, . . Tabor, 12 Johns., 239 306 31. Digest of American Cases 307 82. Digest of English Cases 307 33. Witnesses Not to Give Their Understanding of the Meaning of Defamatory Words 308 34. Illustrations— American Gases: A Minnesota Case, Gribble v. Pioneer Press Co., 37 Minn., 277. A Massachusetts Case, Snell V. Snow, 54 Mass., 378. A New York Case, Van Vet- chin V. Hopkins, 5 Johns., 211. An Iowa Case, Anderson V. Hart, 68 Iowa, 400 308 85. Unsettled State of the Law , 311 CHAPTER XYI. MALICE. I. Malice in Actions fob Defamation. §1. Malice as a Term of Law 315 2. Malice — A General Discussion 316 3. Express Malice Defined 317 4. Malice Refers to the Motive, Not to the Intention 317 5. Necessary Ingredients of Malice 317 6. The Law Implies Malice, when _ . _ _ _ 313 7. Malice in Fact Immaterial, when 3I8 8. Malice in Law — A Wider Meaning 3I8 9. Distinction between Malice in Law and Malice in Fact '. 3l8 Consequences of the Distinction 3;^9 11. Malice in Connection with the Law of Defamation ....... 319 12. Every Defamation Presumed to be Malicious 319 18. Malice Defined by Starkie 300 10. TABLE OF CONTENTS. XVll I 14. Explained by Blackstone 320 15. The Law of Malice Stated by Starkie 320 16. By Chatoplin, J 331 17. By Erie, C. J 331 18. By Lord Justice Brett 322 19. Malice the Gist of the Action 322 20. Illustrations — Digest of American Cases 323 21. A Question for the Jury 823 n. Evidence op Malice. 23. The Burden of Proof 333 23. Privileged Communications 824 24. The Evidence May be Extrinsic or Intrinsic 324 25. Strong Words No Evidence of Malice 324 26. Illustrations — Digest of American Cases 325 37. Digest of English Cases 337 28. Malice Inferred 329 29. Illustrations — Digest of American Cases 329 30. Digest of English Cases 330 81. Repetition of Defamatory Matter Competent to Show Malice. 881 83, Illustrations — Digest of American Cases 331 33. Digest of English Cases 332 34. Reiteration of Libels or Slanders after Suit Brought 332 35. Repetition after Suit Brought Generally ,. 333 36. Illustrations — Digest of American Cases 338 37. Digest of English Cases 334 38. Former and Subsequent Defamations — When Evidence of Malice 334 39. Illustrations — Digest of American Cases 335 40. Digest of English Cases '. 336 41. Extrinsic Evidence of Malice 336 43. Illustrations — American Cases : A Wisconsin Case, Temple- ton V. Graves, 59 Wis., 95 337 43. Digest of American Cases 338 44. Digest of English Cases 338 45. Mode and Extent of Publication 339 46. Illustrations — Digest of English Cases 340 47. Intemperate Expressions — Exaggerated and Unwarranted. . . 340 48. Illustrations — Digest of American Cases 341 49. Digest of English Cases 341 50. The Method of Communication Employed 342 51. Illustrations — Digest of American Cases 34') 52. Digest of English Cases 343 53. Privileged Communications — Undue Publicity 344 54. Illustrations — Digest of American Cases 345 55. Digest of English Cases 345 56. Plea of Justification — When Evidence of Malice 347 Unsettled State of the Law 347 57. 58. The Better Rule. 348 XVm TABLE OF CONTENTS. CHAPTER XVII. EEPETITION OF DEFAMATORY MATTER. g 1. Repetition by the Originator — Competent to Show Malice. . . . 349 3. Illustrations — Digest of American Cases 349 3. Repetition of Slander — Statute of Limitations- 850 4. Repetition of Slanders Originated by Others 350 5. Illustrations — American Cases: A Massachusetts Case, Kin- ney V. McLaughlin, 71 Mass., 3. An Indiana Case, Funk v. Beardsley, 113 Ind., 190 351 6. Digest of American Cases 353 7. Digest of English Cases 353 8. State of the Law in England 354 9. Lord Northampton's Case 355 10. The Law in Starkie's Time 356 11. Distinction between Libel and Slander 356 13. The Person Who Repeats the Slander is Liable 356 13. Exceptions to the Rule 357 14. Digest of English Cases 358 CHAPTER XVIII. PARTIES. § 1. Parties to t;he Action 360 3. Illustrations — Digest of American Cases 360 3. Corporations. 360 (1) As Plaintiffs 360 (3) As Defendants , 361 4. Illustrations — Digest of American Cases 361 5. The Doctrine Discussed 363 6. Liability to Indictment ". 363 7. Illustrations — Digest of American Cases 363 8. Digest of English Cases 364 9. Husband and Wife , 364 10. Slander of the Wife before Marriage 365 11. Extent of the Husband's Liability j 365 13. After Marriage 365 (1) Words Actionable in Themselves 365 (2) Words Not Actionable in Themselves 366 13. The Rule Stated by Taunton 366 14. Defamation by Husband and Wife 366 15. The Rule under Statutes g66 16. The Husband's Liability at Common Law 867 17. Abatement of the Action 367 18. Illustrations — Digest of American Cases 368 19. Digest of English Cases ' 363 20. Infants _. „„„ (1) As Plaintiffs ggg (2) As Defendants 870 TABLE OF CONTENTS. xix g 21. Illustrations — Digest of American Cases 370 32. Lunatics 37q (1) As Plaintiffs 37O (2) As Defendants 37I 23. Bankrupts 37^ 24. Partners ', 371 25. Illustrations — Digest of American Cases 372 26. Digest of English Cases 373 27. Liability for an Act of a Partner or Agent 373 28. Illustrations — Digest of American Cases 373 29. The English Law 374 30. Personal Representatives — Executors and Administrators... 375 31. Principal and Agent — Master and Servant 375 32. Agent's and Servant's Liability 375 33. Master's and Principal's Liability 376 34. Acts of Agents and Servants under Instructions, etc 377 35. Ratification of Unauthorized Acts 377 36. Illustrations — Digest of American Cases 378 37. Digest of English Cases 378 88. Criminal Liability 380 39. Illustrations — Digest of American Cases 380 40. Digest of English Cases : 380 41. Receivers 382 42. Joint Defendants 883 CHAPTEE XIX. PRIVILEGED COMMUNICATIONS. § 1. Privileged Communications Defined 388 2. Proper Meaning of the Term 389 3. The Doctrine Discussed '389 4. Illustrations 390 5. Every Defamatory Publication Implies Malice — Privileged Communications 390 6. Burden of Proving Malice 391 7. Requisites of the Occasion 391 8. A Legal Defense to the Action 391 9. The Question of Privilege for the Court 391 10. Duty of the Court when the Communication is Privileged . . , 392 11. Circumstances Determine the Question of Priyilege 393 12. The Law Stated by Chief Justice Bronson 393 13. Illustrations — Digest of American Cases 393 (1) The General Doctrine 393 (2) Agencies, Mercantile, etc 401 (3) Associations, Churohea„,etc 403 (4) Attorneys and Counselors at Law, etc 404 (5) Candidates and Applicants for Public Positions 405 (6) Employer and Employee 407 (7) Judicial Proceedings, etc 408 XX TABIE OF CONTENTS. (8) Master and Servant, etc 409 (9) Public Meetings, etc 409 (10) Public Officers, etc 410 14. General Digest of English Cases 410 15, 16, 17, 18, 19, 30, 31, 33 23, 24. 35. 26. PiaviLEaBD Occasions. The Subject Classified 418 First, the Absolute Privilege, 418 The Rule Pounded on Public Policy 419 The General Rule '. ,419 A Further Classification 419 First Class — Communications in the Course of Legislative Proceedings 430 The Legislative Body Must be in Session 430 The Law of England 431 Illustrations — American Cases : A Massachusetts Case, Coffin V. Cbffin, 4Mass., 1 431 Digest of American Cases 433 Digest of English Cases 433 Second Class — Communications in the Course of Judicial Px*o- ceedings — Conduct and Management — The Administration of Public Justice 423 37. The Rule Stated by Justice Lord 424 38. Words Uttered in the Course of a Trial 434 39. Extent of the Privilege 425 30. The Privilege Limited 435 31. No Action Lies for Defamatory Statements Made in the Course of Judicial Proceedings 435 32. Judges of Courts 425 33. Illustrations — Digest of American Cases 436 34. Digest of English Cases 427 35. Attorneys and Counselors at haw 427 36. Privilege of Counsel — Discussion of the Subject — Maryland Court of Appeals — For Limiting the Privilege to Words Having Reference to the Subject-matter of the Litigation — The Opinion of the Court by Justice Robinson — For the Ab- solute Privilege — Dissenting Opinion by Justice McSherry. 439 37. Illustrations — Digest of American Cases 444 38. Digest of English Cases 44.') 39. Parties Litigant Entitled to the Same Privilege 445 40. Illustrations — Digest of American Cases , 446 41. Prosecuting Witnesses before Justices Entitled to the Same Privilege 446 43. Illustrations — American Cases: A Massachusetts Case, Hoar V. Wood, 44 Mass., 193. A New York Case, Allen v, Cro- foot, 2 Wend., 515 447 43. Witnesses 449 44. The Rule in Starkie 45O 45. The American Rule 45O TABLE OF CONTENTS. XXI § 46, Illustrations - American Cases : A Maryland Case, Henkell v. VoneifE (1888), 6 Atl. Eep., 500. A Tennessee Case, Shodden V. McElwee (1887). 5 S. W. Rep., 603 450 47. Digest of American Cases 458 48. Digest of English Cases 459 49. Jurors Entitled to Privilege, when ..,, 459 50. Affidavits, Pleadings, etc.— The English Rule 460 51. The American Rule 4g0 53. lUustrations — American Cases: An Indiana Case (the Privi- lege Allowed), Hartsock v. Reddick, 6 Blackf., 255. A Ne- braska Case, Pierce v. Card, 23 Neb., 828. An Iowa Case, Rainbow v. Benson, 71 Iowa, 301. A Maryland Case, Bart- lett v. Christhelf, 6 Atl. Rep., 518. A Massachusetts Case (the Privilege Not Allowed), McLoughlin v. Cowley, 127 Mass., 816 4gQ 53. Digest of American Cases 468 54. Digest of English Cases 470 55. Publication of the Pleadings before Trial Not Privileged 471 56. Illustrations — American Cases : A Michigan Case, Park v. Detroit Tribune Co. (1888), 40 N. W. Rep., 731 473 57. Third Class — Communications Relative to Naval and Military Affairs 472 58. Extent of the Rule in America 473 59. Heads of Departments Keepers of the Archives 473 60. Illustrations — Digest of American Cases 473 61. Digest of English Cases 473 63. Second, the Qualified Privilege — The Subject Classified 4'i'5 First Class — Qualified Privilege. 63. Where the Circumstances Cast upon the Party the Duty of Making the Communication 475 64. Character of the Duty Cast upon the Party Communicating. . 476 65. The Party Must Guard against Exaggerated Expressions 477 66. Manner of Communication — The Subject-matter 477 67. When the Communication Exceeds the Privilege 477 68. Province of the Court and the Jury 478 Communications Volunteered in the Discharge op a Duty. 69. A Confidential Relation Existing between the Parties 479 70. The Rule Stated by Chief Justice Shaw 479 71. Manner of Conveying the Communication 480 73. The Law Illustrated — Examples and Applications 480 73. Illustrations — Digest of American Cases 480 74. Digest of English Cases 481 75. No Confidential Relation Existing between the Parties 483 76. The Doctrine of Voluntary Communications Discussed 483 77. Danger of Voluntary Statements 484 78. Parties Making Statements Must Believe Them 485 79. Illustrations — Digest of American Cases 485 XXII TABLE OF CONTENTS. g 80. Digest of English Cases .• 486 81. Communications Relating to the Character of Servants 490 89. Character of Servants 490 83. A Favorable Character May be Retracted 491 84. Eagerness to Prevent Former Servant from Obtaining Employ- ment— Evidence of Malice 492 85. Illustrations — Digest of American Cases 492 86. Digest of English Cases 493 87. Confidential Communications in Answer to Inquiries 493 88. The General Rule 494 89. Pertinency of the Answers 495 90. Illustrations — Digest of American Cases 495 91. Digest of English Cases 496 93. Confidential Communications Not in Answer to Inquiries .... 498 93. The Cases Distinguished , 498 94. Illustrations — Digest of American Cases 498 95. Digest of English Cases 499 96. Communications Relatirig to the Misconduct of Others and Crimes — A Duty Owed to the Public 500 97. The Rule Stated by Inglisy L. P : 500 98. Communications in the Prosecution of Inquiries Regarding Crimes 500 99. Illustrations — Digest of American Cases 501 100. Digest of English Cases 503 101. Communications Containing Charges against Public Officers. 504 103. Caution to be Observed in Making Statements 505 103. Illustrations — American Cases: A Wisconsin Case, Ellsworth V. Hayes, 71 Wis., 437 505 104. Digest of American Cases 506 105. Digest of English Cases , 507 106. The Rule Stated by Baron Fitzgerald 507 , 107. Illustrations — Digest of English Cases 508 108. Communications to Protect Private Interests 509 109. Extent of the Publication — Must Not be Excessive 509 110. The Privilege, when Not Defeated — Intemperate Statements 510 111. Illustrations— American Cases: A Miciii<;an Case, Smith v. Srnith (1889), 41 N. W. Rep., 499. A New York Case, Kiinck V. Colby, 46 N. Y., 437 510 113. Digest of American Cases... 512 113. Digest of English Cases 513 114. Communications Provoked by the Plaintiff's Request or Con- trivance 515 115. The Rule Stated by Lord Denman 515 116. The Second Occasion, etc., Discussed 516 117. Illustrations — American Cases: A Massachusetts Case, Brad- ley V. Heath, 89 Mass., 163 516 118. Digest of American Cases 517 119. Digest of English Cases 517 120. Communications Provoked by a Party's Miscondmrt — Tne Right to Defend One's Character 519 TABLE OF CONTKNTS. XXiil § 121. Limitation of the Rule 520 132. Illustrations — American Cases : A Minnesota Case, Quiniby v. Tribune Co., 38 Minn,, 528. A Massachusetts Case, Sheffill V. Van Dusen, 81 Mass., 485. A New York Case, Beardsley • V. Maynard, 7 Wend. , 560 520 123. Digest of English Cases 532 Second Clrxss — Qualified Privilege. 124. Parties Having a Common Interest 523 125. Illustrations — American Cases: A Michigan Case, Bacon v. Michigan R. E. Co., 33 N. W. Rep.. 181. A Vermont Case, Shurtleff v. Stevens, 51 Vt., 503. A Kansas Case, Kirkpat- rick V. Eagle Lodge, 26 Kan., 384 5S;4 126. Digest of American Cases 526 127. Digest of English Cases 526 128. Where there is a Community of loterest 529 129. Illustrations — Digest of American Cases 529 130. Digest of English Cases 531 131. Unnecessary Publicity to be Avoided 531 132. Exaggerated Expressions Not Privileged 532 133. Illustrations — Digest of American Cases 533 134. Communications Relating to Candidates for Office 533 135. Freedom of the Discussion 533 136. Qualification and Fitness May be Discussed, Not Private Char- acter 534 137. The Rule in Pennsylvania 534 138. Defamation Concerning Candidates — A General Rule 535 139. Illustrations — American Cases: A Michigan Case, Wheatou V. Beecher, 33 N. W. Rep., 503 535 140. Digest of American Cases 537 141. Digest of English Cases 541 143. Petition for the Removal of Officers — How Far Privileged. . . 543 Third Class — Qualified Privilege. 143. Publication of the Proceedings of Legislative Bodies — Courts of Justice — Public Meetings, etc 543 144. First, Legislative Bodies ., 542 145. Ulustitations — Digest of American Cases 043 146. Digest of English Cases 543 147. Second, Judicial Proceedings — Requisites of the Report 544 148. Illustrations — Digest of American Cases 544 149. Digest of English Cases 54(1 150. Exceptions to the Rule 54H 151. Illustrations — Digest of English Cases o48 152. Reports of Ex Parte Proceedings and Preliminary Examina- tions ■ ''*"'■' 153. Illustrations— Digest of American Cases 549 154. Digest of English Cases 5r,X 155. Essentials of the Report 551 XXiv TABLE OF CONTENTS. § 156. Not Essential that the Report Should be Verbatim 553 157. Extent of the Privilege 553 158. The Press Has No Exclusive Privilege 553 159. Illustrations — Digest of American Cases 553 160. Digest of English Cases. 553 161. Partial Reports 554 ' 163. Illustrations — Digest of English Cases 555 163. Reports to be Confined to the Proceedings 556 164. Illustrations — Digest of American Cases 557 165. .Digest of English Cases 557 166. Questions of Practice for Consideration 558 167. Duty of the Jury 559 168. Publication of the Proceedings of Public Meetings 559 169. Consequences of the Publication 560 170. Illustrations — Digest of American Cases 560 171. Digest of English Cases 561 CHAPTER XX. CRITICISM AND COMMENT. § 1. Criticism — Fair Comment Made in Good Faith 564 3. Of the English Lavr: Cockburn, C. J., Lord Ellenborough and Lord Kenyon 564 3. Of the American Law : Chief Justice Gray 566 4. The Privilege 566 5. Criticism Distinguished from Defamation 567 6. The Right to Publish Fair and Candid Criticism 56S 7. Comment upon Admitted Facts 568 8. Illustrations — Digest of American Cases 569 9. Digest of English Cases 570 10. Comments Must be Fair and Honest 571 11. Illustrations — Digest of American Cases 573 13. Digest of English Cases 574 13. Matters of Public Interest 575 14. The Subject Classified 576 15. Matters Concerning the Administration of the Government. . . 576 16. Illustrations — Digest of American Cases 577 17. Digest of English Cases , 578 18. Matters Pertaining to the Administration of Public Justice. . . 579 19. Manner of Publication 580 30. Illustrations — Digest of American Cases 580 31. Digest of English Cases 581 33. Matters Relating to the Management of Public Institutions and Local Authorities 533 33. Illustrations — Digest of American Cases 533 34. Digest of English Cases 5g;j 35. Matters Relating to Appeals for Public Patronage 583 36. lUuBtrationB — Digest of American Cases 58.i TABLE OF CONTENTS. XXV % 37. Digest of English Cases 585 28. Matters Pertaining to Literary Publications, Boolcs, Pictures, etc. 586 39. Illustrations — Digest of American Cases 587 30. Digest of English Cases 587 31. Matters Concerning the Character and Quality of Public En- tertainments 588 S3. Criticism on Subjects of Public Exhibition 589 33. Illustrations — Digest of American Cases 589 34. Digest of English Cases 590 35. Matters Relating to Religious Bodies, Churches and Associa- tions 590 36. Illustrations — Digest of English Cases 590 37. Extent of the Right to Publish the News 591 38. Publications Made for Sensation and to Increase Circulation. . 591 39. Who is the Proprietor of a Newspaper 593 CHAPTER XXI. PLEADINGS IN CIVIL ACTIONS. § 1. The Pleadings in Actions of Defamation 595 3. Pleading under Codes 595 3. Illustrations — Digest of New York Cases 596 4. Modification of the Common-law System 598 5. Forms Prescribed in Massachusetts 598 6. In Alabama 598 7. In Florida 599 8. In Kansas .' 599 9. In Arizona Territory 599 10. The Principles of the Common Law 600 11. The Statement of the Claim Defined 600 13. The Declaration at Common Law — Its Form and Particular Parts 600 The Subject Illustrated. 13. First, the Title 601 14. Second, Designation of the Parties Litigant 601 15. Third, Inducement of Good Character 601 16. Fourth, Inducement of Innocence of the Offense Imputed 601 17. Fifth, Inducement of the Resulting Effect of Good Character 602 18. Sixth, Statement of Extrinsic Matters — Commission of an Offense 602 19. The Inducement Explained 603 20. Illustrations — American Cases: A Massachusetts Case, Bloss V. Toby, 19 Mass., 330 — Digest of American Cases 603 21. The Inducement, when Necessary 607 23. Illustrations — Digest of American Cases 607 23. The Inducement, when Not Necessary 609 24. Illustrations — Digest of American Cases . . . , 610 XXVI TABLE OF CONTENTS. g 35. Special Inducements as to ProfeEsions, Trades, etc.— Illustra- tions: An Old English Form. An Illinois Form. A Mod- ern English Precedent .■ 610 26. Declaring upon Defamatory Matter at Common Law — Trav- erse of fextrinsio Matter 611 27. Seventh, Statement of Malicious Intent 613 38. The Statement Essential 618 39. Eighth, the Colloquium 613 30. The Term Defined 613 31. The Application to the Plaintiff of the Defamatory Matter Must be Averred , 613 32. Illustrations — American Cases: McCallum v. Lambie, 145 Mass., 234 — Digest of American Cases 614 33. Ninth, the Imputation with the Innuendoes 618 34. The Innuendo Defined 618 35. The Office of the Innuendo 619 36. The Law Stated by Chief Justice Shaw 620 37. Illustrations — American Cases: A Wisconsin Case, Singer v. Bender, 64 Wis., 169. A New York Case, Butler v. Wood, 10 How. (N. Y.), 333 — Digest of American Cases — Digest of English Cases : (1) Libel ; (3) Slander 630 38. Truth of the Innuendo a Question for the Jury 628 39. The Plaintiff Must Abide by His Itinuendo 629 40. When it Will Vitiate the Pleading 639 41. When the Innuendo May be Treated as Surplusage 639 43. It Cannot Restrict the Defendant's Rights — The Defense Must be as Broad as the Attack 630 43. Illustrations — American Cases : A Michigan Case, Bothwick V. Detroit P. & T. Co., 50 Mich., 629 630 44. Form of the Second Count 632 45. Illustrations — Digest of American Cases 633 46. Tenth, General Statement of Damages 633 47. Eleventh, the .dd-Damnum 634 48. Twelfth, the Conclusion .... 634 49. Statement of Special Damages 634 50. Illustrations: Loss of Acquaintances. An Old English Prece- dent. An American Form. English Modern Forms. Words Actionable in Themselves. Imputation of Insolvency. Words Not Actionable in Themselves 635 51. Defamatory Words Spoken in a Foreign Language 637 53. Illustrations — American Cases: Pelzer v. Benish, 57 Wis., 391. An American Common-law Form. A Modern Eng- lish Precedent . g37 Statement of the Claim in Actions for Slander of Title. 53. Requisites of the Declaration 688 54. Illustrations — Digest of English Cases 638 55. Statement of Special Damages 689 56. Statement of the Negotiation fbr Sale of the Property 639 TABLE OF CONTENTS. XXVii § 57. Statement of the Cause of Action — General Digest of Ameri- can Cases 640 Statement of the Defense. 58. The General Issue 648 59. Illustration — Its Form 648 60. The General Effect of the Plea 648 61. Slander of a Person in His OfBce, Profession or Trade 649 62. Words Not Actionable in Themselves 649 63. Privileged Communications 649 64. Burden of Proof Cast upon the Plaintiff 649 65. Modifications of the Common Law 650 66. Notice of Special Matter 650 67. Illustrations 650 68. Justification — The Plea — Truth of Defamatory Words 651 69. The Plea at Common Law 651 70. Requisites of the Plea 651 71. It Must be Specially Pleaded 653 72. The General Rule — Illustrations 653 73. Defamatory Matter Must be Explained by the Innuendoes. ... 653 74. Rule under the English Practice 653 75. Libels Containing a Specific Charge 654 76. Illustrations : Form of the Plea. Imputation of Perjury. Im- putation of Passing Counterfeit Money 655 77. Illustrations — Digest of American Cases 65(> (1) The Plea Generally 656 (2) What is a Justification C58 (3) What is Not a Justification 660 78. General Digest of English Cases 663 79. Effect of a Failure to Establish the Plea 664 80. Plea of Justification in Actions for Slander of Title 665 81. Bill of Particulars under the General Issue 665 83. The Replication De Injuria 665 83. Illustrations — Its Form at Common Law 666 84. Conclusion 666 CHAPTER XXIL PRECEDENTS OF PLEADINGS IN CIVIL CASES. I. Slandee. § 1.. Declaration in Slander at Common Law — Skeleton Form 670 3. A General Form at Common Law 671 3. A Declaration for Words Charging Larceny 672 4. A Short Form — Imputation of Robbery and Larceny 673 5. For Indirect Imputation of Perjury 673 6. For Charging the Plaintiff with Swearing Falsely 674 7. For Words Imputing a Propensity to Commit Sodomy, etc. , . 675 8. For Words Imputing a Want of Chastity 677 XXVIU TABLE OF CONTENTS. § 9. For Words Spoken in a Foreign Language 678 10. For Words Spoken in French, Imputing a Want of Chastity. . 678 11. For Slander by Question and Answer 679 13. For Words Spoken: Ironically 680 13. Declaration by Husband and Wife against Husband and Wife for Slander by the Wife — Imputation of Perjury.'. 680 14. For Words Spoken of a Magistrate in His Office 681 15. For an Imputation of Insolvency to a Tradesman 682 16. For an Imputation of a Want of Integrity to a Trader 683 17. For Words Slandering Plaintiff in His Trade — Imputation of Keeping False Books 684 II. Libel. 18. Declaration for a Libel at Common Law — Indirect Imputa- tion of Pex-jury 686 19. A Modern English Precedent — Libel Posted in Public Place. 689 20. For an Imputation of Perjury — A New York Precedent 689 21. Character of Servant — Imputation of Bad Temper and Lazi- ness — Another Form 691 22. For a Libel by Letter, Intimating Insolvency 694 23. For a Libel on a Party in His Trade, Imputing Insolvency 695 24. For, a Libel on an Attorney 697 25. For a Libel by Caricature 698 26. For a Libel in a Newspaper 699 III. Libel and Slander. 27. Statement of the Claim under the English Rules — The Eng- lish Procedure Act 700 28. Character of Servants 701 29. Imputation in a Foreign Language 701 80. On a Libel Contained in a Placard 701 81. For Reading a Libel Aloud 702 82. For Showing an Anonymous Letter 703 83. For a Libel on a Town Clerk 703 84. For a Libel on a Solicitor 703 85. For a Libel on an Architect in the Way of His Profession 704 86. For Words Imputing a Crime 705 87. For Words Imputing a Contagious Disorder — Special Dam- ages 705 88. For Slander of a Clergyman 705 89. For Slander of a Medical Man 7O6 40, For Slander of a Solicitor 708 41, For Slander of a Trader in the Way of His Trade — Special Damages - Another Form — Particulars of Special Dam- ^Ses 707 42, For Words Imputing Insolvency— Special Damages 708 48. For Words Not Actionable without Proof of Special Damages. 708 44. Statement of Claim by Husband and Wife for Slander of Wife ,09 TABLE OF CONTENTS. Xxix IV. Slander of Property. § 45. Declaration for Words Spoken to a Person about to Hire Plaint- iff's Ship, that She was Broken and Unfit to Proceed 709 46. For a Libel on Goods Manufactured by Another — Pleas — Replication — Joinder in Demurrer — Interrogatories 710 V. Slander of Title. 47. Declaration at Common Law — For Procuring a Third Person to Attend a Public Auction Room and Slander Plaintiff's Title 713 48. Slander of Title to Goods — Statement of Claim — Defense... 714 49. For a Libel in the Nature of Slander of Title 716 VI. Statement of Defenses — Pleas at Common Law. 50. The General Issue — Non Cul — Not Guilty 717 51. Pleas of Justification — Imputation of Larceny — Another Form 717 58. Justification of Charge of Perjury 718 53. Charge of Insolvency 719 54. Justification Charging Third Person with the Authorship of the Slander 719 55. Of the Truth of a Libel on an Attorney 719 56. For Sending a Letter to Commander-in-Chief in Order that the Plaintiff Might be Brought to a Court-martial 721 57. For an Imputation that the Plaintiff had been Guilty of Open- ing Letters Til 58. For an Imputation that the Plaintiff had been Guilty of Per- jury in an Answer in Chancery 723 59. Justification of a Slander of Property 724 ' 60. General Replication 724 VII. Statement of Defenses under the English Rules. 61. A Traverse and an Objection in Point of Law > . . 725 62. Defense — No Libel — Bona Fide Comment on Matters of Pub- lic Interest 721 63. No Libel — Action against a Newspaper Publisher 725 64. Bill of Particulars '. 726 65. Comment on Matters of Public Interest — The Same Defense and Replication 727 66. NoSlander — Insufficient Publication — No Conscious Publica- tion and Reply ; 727 67. Innocent Publication of a Libelous Novel 728 68. No Conscious Publication — Madness 728 69. Words Spoken in Jest 729 70. A Justification 730 71. Justification of the Words without the Alleged Meaning 730 72. Justification of a Portion of a Libel and Reply 730 73. Justification and Privilege 731 74. Absolute Privilege — Litigant in Person — Witness — Military Duty 731 XXX TABLE OF CONTENTS. §75. Qualified Privilege 733 (1) Character of Servants....... 732 (2) Answer to Confidential Inquiries 732 (3) Master and Servant 732 (4) Advice to One about to Marry 733 (5) Communication Volunteere'd 733 (6) Offer of Reward for Discovery of Ofl'ender 733 (7) Complaint of Plaintiff's Misconduct 733 (8) Claim of Right and Reply 734 (9) Self-defense 734 (10) Common Interest — Church Members 734 (11) Members of the Same Committee 735 (12) Competitors at a Poultry Show 735 (13) Vendor and Purchaser 736 (14) Report of Judicial Proceedings 736 (15) Report of a Judgment Published as a Pamphlet 737 (16) Report of a Public Meeting and Reply 737 76. Statute of Limitations — Replication — Rejoinder 738 77. Previous Action 739 78. ' Accord and Satisfaction 739 79. Payment into Court 740 80. Words Spoken by the Defendant when Drunk — Payment into Court and Apology : 740 81. Payment into Court and Particulars 741 82. Pleading an Apology and Reply 741 83. Notice 742 84. Absence of Malice and Negligence. 748 85. Interrogatories and Answer 743 CHAPTEE XXIII. BILLS OF PARTICULARS. § 1. -A Bill of Particulars Defined 745 2. Power of the Court to Order the Bill 745 8. When Ordered on Defendant's Motion 745 4. When Ordered on Plaintiffs Motion 746 5. When it Will Not be Ordered 746 6. Its Form and Contents 746 7. A Precedent in Actions for Special Dalnages — Loss of Profits 746 8. Illustrations — Digest of American Cases 747 CHAPTER XXIV. EVIDENCE. Plaintiff's Proofs — Plka of the General Issue Filed. § 1. The Natural Order of the Proofs 751 3. Proof of the Plaintiff's Special Character and Extrinsic Matter 751 (1) Where it is Generally Alleged 751 (2) Where it is Specially Alleged 753 TABLE OF CONTENTS.' XXXi §3. When the Proof is Unnecessaxy 752 4. Strict Proof of Special Character Not Required 758 5. Proof of Extrinsic Matters 753 6. "Words Spoken of a Person in the Way of His OflSce, Profes- sion or Trade 754 7. Illustrations — Digest of American Cases 754 8. Digest of English Cases ■ 754 9. Proof of Publication 756 10. Evidence of Defendant's Handwriting 758 11. Slander — Proof of Publication 759 13. Libel— Proof of Publication 760 13. Secondary Evidence 761 14. Illustrations — Digest of American Cases 761 15. Digest of English Cases 763 16. Proof that the Def amatoiy Matter Refers to the Plaintifle 767 17. Proof of the Meaning of Defamatory Matter 768 18. Words Susceptible of Two Meanings 769 19. Proof of Malicious Intent 770 20. Proof of Plaintiffs Good Character 771 21. Under the Gteneral Issue 771 23. Illustrations — Digest of American Cases — Evidence of Mal- ice 772 23. Digest of English Cases 775 24 Evidence of Damages 779 (1) General Damages , 779 (2) Special Damages 779 25. Proof that the Special Damage was the Result of the Defend- ant's Act 780 26. Loss of Customers 780 27. Loss of Marriage 780 38. Desertion of Places of Amusement 780 29. Illustrations — Digest of American Cases — Evidence of Spe- cial Damages 781 30. Digest of English Cases 783 31. What is Admissible in Aggravation of Damages 785 32. Digest of American Cases '. 785 33. Digest of English Cases 787 Defendant's Pkooi'S — Plea of the Genekal Issue Filed. 34. The General Issue Filed 787 35. Defendant's Evidence under this Plea 788 36. Falsity Relied on as Proof of Malice 788 37. Privileged Communications 788 38. Generally what the Defendant May Show under this Plea 790 39. Truth under the Plea of the General Issue 790 40. Illustrations — Digest of American Cases — What is Admissi- ble under the General Issue 791 Plea of Justification Filed. 41. The Plea with the General Issue 794 43. Justification — The Truth a Defense in Civil Actions 795 c XXXii TABLE OF CONTENTS. §43. Degree of Proof Required 795 44. Imputation of Perjury '''96 45. The Justification Must be as Broad as the Charge 796 46. The Rule in Criminal Prosecutions — Truth in Justification . . 797 47. Illustrations — Digest of American Cases — Evidence Admis- sible under the Plea of Justification — The Measure of Proof 797 (1) By a Preponderance of the Evidence 800 (3) Beyond a Reasonable Doubt 800 Evidence Not Admissible under the Plea of Justification. 48. Variances — A Variance Defined 804 49. What Constitutes a Variance 804 50. TheLawStated 804 51. TheGeneral Rule 805 /53. Illustrations — Digest of American Cases — Variance Fatal . . 805 53. Variance Immaterial — Digest of English Cases 808 54. Bight to Open and Close 810 55. The jGeneral Rule 811 56. Illustrations — Digest of American Cases 811 57. Defendant's Tongue No Slander 812 58. Proof of Surrounding Circumstances for the Purpose of Ren- dering Words Not Actionable. 813 69. Evidence of Slanders Uttered by Defendant against Third Persons 813 60. Dlustrations — Digest of American Cases 813 61. General Digest of American Cases. (1) What Evidence is Admissible Generally in Actions for Defamation 814 (3) What Evidence is Not Admissible 830 (3) Evidence of Character 833 (4) The Burden of Proof 836 63. Defendant's Proofs — General Digest of American Cases 838 CHAPTER XXV. NONSUIT. § 1. The Term Defined ; 830 3. AVoluntary Nonsuit 830 3. An Involuntary Nonsuit 830 4. Power of the Court to Direct a Nonsuit 830 5. When it Will be Directed 831 6. Taking the Case from the Jury 833 7. Illustrations — Digest of American Cases 833 8. Digest of English Cases 834 CHAPTER XXVI. DAMAGES. I. General Damages. § 1. General Damages ; 838 2. The Subject Classified 839 TABLE OF CONTENTS. XXXUi § 3. Nominal Damages 839 4. Illustrations — Digest of American Cases 839 5. Digest of English Cases ,840 6. Substantial Damages 841 7. Illustrations — Digest of American Cases 841 8. Exemplai-y Damages 843 9. The Law Stated by McAllister, J '. 843 10. Illustrations — American Cases : An Indiana Case, Casey v. Hulgan, 31 N. E. Eep., 332 844 11. Digest of American Cases 844 13, Assessment of Damages 847 13. The Province of the Jury 847 14. Damages in the Discretion of the Jury ' 848 15. Costs Not to be Considered 848 II. Speciai, Damages. 16. Special Damages Defined 849 17. Words Actionable if Special Damage Follows 849 18. The Rule for "Words Not in Themselves Actionable without Proof of Special Damage 850 19. Damages Arising from Words Not Actionable in Themselves . 851 20. First, the Damages Must be Actual and Substantial 851 21. Second, the Damages Must Have Actually Accrued 853 23. Third, the Damages Must be the Immediate Consequence of the Defamatory Words 853 23. Illustrations — Digest of Amei'ican Cases 858 24. Digest of English Cases 854 35. Classes of Words, when Actionable 854 36. Illustrations — Digest of American Cases 855 37. Digest of English Cases 855 38. Special Damages — Words Not Actionable in Themselves 855 29. Proof of Special Damages — In What Cases Essential 856 30. Loss of Some Material Temporal Advantage 856 31. Continuing Damages 857 32. Illustrations — Digest of American Cases 858 33. Digest of English Cases 861 34. Special Damages — Words Actionable in Themselves 863 35. Mental Distress, etc. — When and when Not Special Damage. 863 36. Special Damage — Traders and Professional Men 864 37. Illustrations — Digest of American Cases 865 38. Digest of English Cases 865 39. Special Damage Must be Specified in the Statement of the Claim 866 40. Statement of the Claim for Special Damages .' 866 41. Statement of the Claim — Its Requisites 867 43. The Rule in Actions for Libel 867 43. Application of the Rule 868 44. Difficulty of Application 869 45. Illustrations — American Cases : A Massachusetts Case, Cook V. Cook, 100 Mass., 194 869 XXxiv TABLE OF CONTENTS. § 46. Digest of American Cases 870 47. Digest of English Cases 871 48. Words Imputing a Want of Cliastity 873 49. An Exception 873 60. Illustrations — Digest of English Cases 873 III. Aggbavation of Damages. 51. What May be Shown in Aggravation of Damages 874 53. Extrinsic Matters in Aggravation of Damages 875 53. The Plaintiff's Character in Issue 875 54. The Plaintiff's Character Presumed to be Good 876 55. Negligence in the Publishers of Newspapers 876 56. Extent of Circulation May be Shown 877 57. The Defendant's Wealth an Element of Damages 877 58. The General Rule 878 59. Illustrations — American Cases : A Michigan Case, Hitchcock V. Moore, 87 N. W. Rep., 914 878 60. Digest of American Cases. 879 61. Digest of English Cases 883 IV. Mitigation of Damages. 63. The Rule where the Defendant Does Not Justify 883 63. What May be Shown in Mitigation of Damages — Illustra- tions — Digest of American Cases 883 64. What is Not Admissible in Mitigation of Damages — Digest of Anierican Cases 887 65. Division of the Subject 889 66. First, General Bad Character of the Party Defamed 890 67. Bad Character Must Have Existed Previous to the Alleged Defamation 890 68. Illustrations — Digest of American Cases 891 69. Digest of English Cases 893 70. Previous Publication by Others 893 71. An Exception to the Rule 894 73. Illustrations — Digest of American Cases 895 73. Digest of English Cases 896 74. Matters Not Amounting to a Justification 897 75. Illustrations — Digest of American Cases 898 76. Liability of Third Persons 899 77. Absence of Special Damage 900 78. Absence of Malice 901 79. Illustrations — Digest of English Cases 903 80. Previous Provocation 903 81. When Proper in Mitigation of Damages 903 83. Illustrations — American Cases : A Massachusetts Case, Shef- fill V. Vandusen, 81 Mass., 485. A New York Case, May- nard v. Beardsley, 7 Wend., 560. A Minnesota Case, War- ner V. Locksley, 31 Minn., 431. A Massachusetts Case, Child V. Homer, 13 Pick. (Mass.), 503 903 83. Digest of American Cases 906 TABLE OF CONTENTS. XXXV i 84. Retraction — Amends and Apologies 907 85. Illustrations — Digest of American Cases 909 V. Excessive Damages. 86. Excessive Damages — New Trial 910 87. Must Grossly Exceed what would be Adequate 911 88. Illustrations — Digest of American Cases — Amounts Held Not Excessive 913 89. Digest of English Cases ' 920 90. Amounts Held to be Excessive 924 VI. Remoteness or Damages. 91. Damages Too Remote 926 92. Illustrations — American Cases : A Massachusetts Case, Dud- ley V. Briggs, 141 Mass., 582 926 93. Digest of English Casei 928 94. The Defamatory Words Must be the Predominating Cause of the Damage Claimed 929 95. Illustrations — Digest of English Cases 929 96. Acts of Third Persons 930 97. Digest of English Cases 931 98. Belief of Third Persons in the Defamatory Words 931 99. Illustrations — Digest of American Cases 931 100. Digest of English Cases — A Contrary Doctrine 933 101. Repetition by Third Persons 932 102. Exception to the Rule 933 103. Digest of English Cases 933 CHAPTER XXVII. THE CRIMINAL LAW OF -DEFAMATION. § 1. The Criminal Libel Defined 937 3. Illustrations — General Digest of American Cases 937 3. The Offense, when Committed 989 4. TheTestof Criminality • 939 5. The Subject Classified 940 Class I. 6. Libels Tending to Injure the Administration of the Govern- ment and of Public Justice 940 7. Libels on the Government 940 8. Words Defamatory of the Constitution and Laws 940 9. Libels Tending to Injure the Administration of Public Justice 941 Class II. 10. Libels Tending to Injure Society Generally, and to Corrupt Public Morals 941 11. Obscene Libels 941 13. Illustrations — Digest of American Cases 943 XXXVl TABLE OF CONTENTS. § IS. Digest of English Cases 943 14. Blasphemy 944 15. Heresy 946 16. Distinction between Heresy and Blasphemy 947 17. The English Law of Blasphemy 948 18. Illustrations — Digest of English Oases 956 19. The American Law of Blasphemy 960 (1) The Common Law 960 (3) Under Statutes 960 20. Illustrations — Digest of American Cases 961 31. Liberty of the Press Not to be Abridged 963 23. Profanity 963 33. Illustrations — Digest of American Cases 963 Class III. 34. Libels Tending to Blacken the Memory of the Dead 965 25. Illustrations — Digest of English Cases 966 Class IV. 26. Libels Tending to Blacken the Eeputation of One Who is Liv- ing and Expose Him to Public Hatred, Contempt or Ridicule 966 27. The Grounds upon which They are Indictable — (1) Breach of the Peace 967 28. Illustrations — Digest of American Cases — Digest of English Cases 967 29. (3) Other Illegal Acts 968 30. Oral Defamation 970 81. Publication of Libels under the Criminal Law 971 CHAPTEE XXYIII. PLEADINGS IN CRIMINAL PROCEEDINGS. §1. Rules of Pleading 972 2. The Indictment — Its Formal Parts 974 (1) The Caption and Commencement 974 (2) The Statement and Conclusion 976 8. Illustration's — Digest of American Cases 977 Peecedents. 4. Libels on Individuals 98i (1) Indictment for Writing a Ridiculous Poem and Sending it to the Person Libeled ggi (2) For Publishing a Libel Imputing the Crime of Theft 983 (8) The Same Modified for Use in American Courts 983 (4) For Writing and Sending a Libelous Letter to a Third Person 983 (5) For Sending a Libelous Letter '. 934 (6) For Hanging a Man in Effigy \[ 934 (7) For Posting up a Handbill .....I.... 985 (8> For Attempting to Publish a Libel ""' "' ogs TABLE OF CONTENTS. XXXVU §5. Libels on the Dead 985 (1) Indictment for Writing a Libelous Epitaph 985 (3) Information for a libel Reflecting on the Chastity of a Deceased Woman 986 6. Blasphemous Libels 988 (1) Indictment for a Blasphemous Libel 988 7. Obscene Libels 988 (1) An English Precedent 988 (3) Another Form 989 8. Libels Tending to Injure the Administration of the Govern- ment 989 (1) Indictment for Seditious Words 989 9. Libels Tending to Injure the Administration of Public Justice . 990 (1) English Form for Words Spoken to a Magistrate 990 (3) Indictment for Verbal Slander 991 TABLE OF AMERICAN AND ENGLISH CASES GIVINa THE REPORT AND PAGE. WHERE THE CASE MAY BE FOUND, FOL- LOWED BY THE PAGES WHERE CITED IN THIS WORK. I. AMEEIOAE" CASES. Abrams v. Smith, 8 Blackf., 95 101, 773 Abrams v. Foshee, 3 Iowa, 274 132 Abshire v. Kline, 3 Ind., 115 160 Acker v. McCullough. 50 Ind., 447 162 Ackerman v. Jones, 37 N. Y. Sup. Ct., 42 544, 546 Achorn v. Piper, 66 Iowa, 694 849, 861 Adams v. Stoner, 131 Mass., 433 - 158 Adams v. Rankin, 1 Duv., 58 - - ..... 159 Adams v. Ward, 1 Stew. (Ala.), 43 - - ... 798 Adams v. Harmon, 3 Nev., 222 824 Adams v. Smith, 58 HI., 421 841, 890, 891 Adkins v. Williams, 23 Ga., 223 - - - - - - - 773 Adcock V. Marsh, 8Ired. (N. C.) L., 360 775, 878 ^tna Life Ins. Co. v. Paul, 23 111. App., 611 ... 820 Aird V. Fireman's Jour. Co., 10 Daly, 354 -347 Alley V. Neeley, 5 Blackf., 200 118, 119, 266 Allen V. Cape Fear, etc., R'y Co., 6 S. E. Rep., 105 - - - 61, 62 Allen V. Crofoot, 2 Wend.. 515 448, 505, 506 Alexander v. Alexander, 9 Wend., 141 - - - - 98, 111, 143, 253 Aldrich v. Brown, 11 Wend., 596 123, 837 Aldrich v. Pi-ess Print. Co., 9 Minn., 133 - - 861, 363, 534, 535, 561 Alderman v. French, 1 Pick., 1 .... 774, 836, 883, 889, 894 Allinsworth v. Coleman, 5 Dana (Ky.), 315 786 Albin V.' Parks, 2 Brad. (111.), 576 805 Amesv. Hazzard, 6R. L,839 oc n"o -no I^« Andres V. Koppenbeafer, 3 S. & R., 355 - ■ - - 38,98,103,372 Andres v. Wells, 7 Johns., 360 372, 377 593 Andrews V. Bartholomew, 43 Mass., 509 - - - ,-^,^-^07 Andrews v. Woodmansee, 15 Wend., 333 - - - 143, 145, 353, 621 Andrew v. Deshler, 45 N.. J. L., 167 313, 646 Anderson v. Long, 10 S. & R., 55 - b7b Anderson V. Hart, 68 Iowa, 400 - al^ tin' ^11 Andrews v. Van Dusen, 11 Johns., 38 657, b60, 794 Anabal V. Hunter, 6 How. Pr., 355 660 Anthony v. Stevens, 1 Mo., 354 89^ Anon., 1 Ohio, 88, n. - " 1»" Anon., 60 N. Y., 363 386, 859, 933 Anon., 3 How., 406 »"« Anon., 1 Hill (S. C), 351 803 Anon., 6 How. Pr., 160 «*^ Armentrout v. Moranda, 8 Blackf., 426 - - ^4 Arnott V. Standard Ass'n, o7 Conn., 86 .... 63, 817, 8ia xxxix Xl TABLE OF CASES CITED. Arrington v. Jones. 9 Port. (Ala.), 139 '791. 883 Artieta v. Artieta, 15 La. Ann., 48 - - ^^''' °''^ Aslibell V. Witt, 3 N. & M., 364 " °^" Ashire v. Cline, 3 Ind., 115 '""' 'ji Atkinson v. Reading, 5 Blackf., 39 J*» Atkinson v. Hartly, 1 McCord, 208 - - ^ " ^ " - " ' , " '^.% Atkinson v. Detroit Free Press Co., 46 Mich., 341 - - - - 40d, b5d Atkinson v. Scannon, 23 N. H., 40 - 0*° AtwiU V. Mackintosh, 130 Mass., 177 40^> 4»o Ausman v. Veal, 10 InS., 355 f^ Austin V. Remington, 46 Conn., 16 - - °°^ Austinetux.y. Nelson etux., 58 Mass., 373 ooo Austin V. Hanohett, 3 Root (Conn.), 48 oO^ Austin V. Bacon, 3 N. Y. S., 587 833 Avery v. State, 7 Conn., 360 »7d Avers v Grider 15 111 37 - - - - - - " " " ^^^ Avers y. Toulmln, 41 N. W. Rep., 855 - • - - 351, 605, 623, 633 Avers v. Covill, 18 Barb., 360 - , " off Aylesworth v. St. Johns, 35 Hun, 156 419, 545 Bain v. Myrjok, 88 Ind., 137 - - 120 Bailey v.Kal. Pub. Co., 40 Mich., 257 - 81,272,538,587,541,578,653 Baileyv. Dean, 5Barb.,297 205,209,311,212,426 Backus V. Richardson, 5 Johns., 476 - 194 Bacon v. Mich. Cent. R. R. Co., 55 Mich., 224 - 229, 321, 389, 524, 763 Baldwin v. Hildreth, 14 Gray, 331 - 617 Baldwin V. Soule,^ 6 Gray, 331 773,804,809 Ball V. Evening Post Pub. Co., 38 Hun, 11 736 Barfieldv. Britt, 2 Jones(N. C), L., 241 803 Barclay V. Thompson, 2 Penn., 148 - 89,111 Barr V. Moore, 87 Penn. St., 385 - - - 53,81,533,535,846 Barr v. Hack, 46 Iowa, 308 880 Bays V. Hunt, 60 Iowa, 251 ... 105, 107, 119, 120, 406, 538 Barger V. Barger, 18Penn. St., 489 - - 126 Barton v. Holmes, 16 Iowa, 352 - - -269 Bar V. Gaines, 1 Dana, 358 303, 804 Barnes v. Campbell, 60 N. H., 37 335, 881 Barnes V. McCrate, 32 Me., 443 449,456,458 Barnes v. Trundy, 31 Me.. 326 860 Bassell v. Elmore, 48 N. Y., 551 350 Bash V. Sommer, 20 Penn. St., 159 360, 879 Bartlettv. Christhilf, 14 Atl. Rep., 518 398,463 Badgley v. Hedges, 3 N. J. L., 233 446 Bathrick v. Detroit Trib. Co., 50 Mich., 659 - - 544, 545, 630, 633, 893 Barber v. St. Louis Dispatch Co., 3 Mo. App., 377 ... - 545 Barber v. Barber, 33 Conn., 335 - 786 Banner Pub. Co. v. State, 16 Lea, 176 577 Baum V. Clause, 5 Hill, 196 657, 660, 798 Bangs V. cean Bank, 53 How. (N. Y.), 51 748 Barto V. Brands, 15 N. J. L., 248 772 Bassett v. Spofford, 11 N. H., 137 804 Barnettv. Ward, 36 0hioSt., 107 . . •. ... 806 Barrow V. Carpenter, 11 Cush., 456 - -. . - - . - 806 Barkly V. Copeland, 15 Pac. Rep., 307 - - .814,817,818,819,877,888 Battel V. Wallace. 30 Fed. Rep., 229 884,885 Baker v. Young, 44 111., 43 805, 810 Baker V. Wilkins, 3 Barb., 320 884 Barker v. Commonwealth, 7 Harris, 413 - . 943, 962, 964, 970, 974 Beach v. Ranney, 3 Hill, 309 - - . . 365, 645, 779, 781, 783, 858 Beardsley v. Maynard, 7 Wend., 560 ...... 521, 775 Beardsley v. Bridgeman, 17 Iowa, 290 -.--.. - 772 Beardsley v. Tappan, 1 Blatch. C. C, 588 . . 193, 394, 401, 624 Beck V. Stitzel, 21 Penn. St., 522 -.-... 97 98 103 Beckett v. Sterrett, 4 Blackf., 499 113 ng AMERICAN CASES. xll Bergold v. Putcha, 3 Thomp. & C, 533 183, 190 Beggerly v. Craft. 31 Ga., 309 80t Bergmann v. Jones, 94 N. Y., 51 204, 846, 919 Bell V. Sun P. Co.. 3 Abb. N. Gas., 157 83, 287 Bell V. Fernald, 38 N. W. Rep., 910 87, 119 Bell V. McGinness, 40 Ohio St., 204 796 Bell V. The State, 1 Swan (Tenn.), 42 943, 964, 970 Benson V. Edwards. 1 Carter (Ind.), 164 - ...--- 333 B.-swick V. Chappel, 8 B. Mon., 486 127, 282, 616 Bordeaux v. Davis, 58 Ala., 611 134, 249 Belck V. Belck, 97 Ind., 73 156 Berry V. Carter, 4 Stew. & P., 387 - 159 Berry V. Massey, lOi Ind., 486 - 301,305 Bebeev. MissouriP. E'y Co., 9S. W. Rep., 449 - - - 339,330,399 Beasley v. Meigs. 16 111'., 139 - ' 347 Belo V. Wren, 63 Tex., 686 - - ... - - 543 Beirer v. Bushfield, 1 Watts, 23 - - - - ^ - - 626 Benaway v. Conyne, 3 Ghand. (Wis.), 214 643 Bennett v. Hyde, 6 Conn., 24 786, 836, 878 Biler V. Gockley, ISBrad., 496 139 BUlingsv. Wing, 7 Vt., 444 89,97,98,108 Billings V. Fairbanks, 139 Mass., 36 494, 501 Billings V. Waller, 38 How. Pr., 97 660 Binns v. Stokes, 27 Mich., 289 - - - ... 326 Bieler v. Jackson, 64 Md., 589 399 Bigney v. Van Benthuysen, 36 La. Ann., 38 - 512 Bigelow V. Sprague, 140 Mass., 435 - - - - 763, 877, 881 Birchfleld v. Russell, 3 Coldw. (Tenn.), 228 835 Binford V. Young, 16 N. E. Rep., 143 - - - - - - 891 Bissel V.Cornell, 24 Wend.. 354 653,657 Bisby V. Shaw, 15 Barb., 578 801 Blacknell v. Smith, 8 Mo. App., 43 180, 265 Blackenstaff v. Perrin, 27 Ind., 537 160, 899 Blakeman v. Blakeman, 31 Minn., 396 - - - - 269, 397, 913 Blackwell v. Wiswall, 14 How. Pr., 358 - 376 Blaisdell v. Raymond, 14 How. (N. Y.), 365 597 Blair v. Sharp, Breese (111.), 11 616 Blessing v. Davis, 34 Wend., 100 - 641 Black v. City of Lewiston, 13 Pac. Rep., 80 834 Bloss V. Toby, 19 Mass., 320 ; „ " )Z„ Blumhardt v. Rohr, 17 Atl. Rep., 266 87, 332, 327 Bodweli V. Osgood, 3 Pick., 379 57, 506, 543, 917 Bodwellv. Sw-an, 3Pick.,376 773,785,790,791 Boogher v. Knapp, 8 Mo. App., 591 -------- i4b Boureseau v. Detroit Eve, News, 30 N. W. Rep., 376 178, 390, 307, 409, 630 Boteler v. Bell, 1 Md., 173 Hi Bostwick V. Nicholson, Kirby (Conn.), 65 '7tf Bonner v. McPhail, 31 Barb., 106 i3b Bonner v. Boyd, 3 H. & J., 378 - „ " Hi Boynton v. Shaw Stocking o., 15 N. E. Rep., 507 - - 68, 319, 608 Boynton v. Remmington, 3 Allen, 397 o5. f*' Bowdonv. BaUes, 8S. E. Rep., 342 157,845 Bowe V. Rogers, 50 Wis., 598 189, 91b Bourlandv. Edison, 8Gratt.,37 5^" Bourland v. Wallace, 8 Gratt., 37 - - - 9"^ Bowdish V. Peckham, 1 D. Chip. (Vt.), 146 - - - - 646,898 Bowen v. Hall, 13 Met. (Mass.), 233 '»f Boldtv. Budwig,38N W.Rep.,280 .'o 1«q lis S^l SrilK'll^ 6i: 395,- 409; 448: 480; 48i; 516%|%I| Bradley V. Fuller, 118 Mass., 239 926! 928 Bradley v. Gardner, 10 Gal., 371 qoo «Qq nu Bradley v. Gibson, 9 Ala., 406 888,893,894 Xlii TABLE OF CASES CITED. Brewer v. Weakley, 3 Overt., 99 - - " " ■ " ^1' ?^^ Broad V. Duester, 8 Biss. C. Ct., 365 .a'^lXo Bransteller V. Darrow, 81 Iiid., 537 ^^^' ?S2 Bruce V. Soule, 69Me., 563 !«» Bieaton v. Note, 3 N. Y. S., 420 - 233 Bronson v. Bruce, 59 Mich., 467 405, 538 Brow V. Hathaway, 13 Allen, 32 - 445, 446, 500, 503, 505, 510, 513, 539 Bradstreet Co. v. Gill, 9 S. W. Eep., 753 - - 605, 633,' 814, 817 Biadshaw v. Perdue, 12 Ga., 510 - 643 Bradenv. Walker, 8 Humph., 34 661 Bradt V. Towsley, 18 Wend., 358 783,858 Bradford v. Edwards, 33 Ala., 628 - - - - - - 888, 909 Brown v. Lambersou, 3 Binn., 34 -------- 38 Brown v. Remington, 7 Wis., 463 -.----r-78 Brown v. Nickerson, 5 Gray, 1 87, 153, 373, 873 Brown V. Mims, 2 Tread w., C, 285 184 Brown V. Hanson, 50 Ga., 633 809 Brown v. Meyers, 40 Ohio St., 99 395 Brown v. Brown, 14 Me., 317 616, 617 Brown v. Brashier, 3 Penn.. 114 643 Brown v. Calvert, 4 Dana (Ky.), 319 745, 747 Brown V. Barns, 39 Mich., 311 878 Brown v. Allen, 91 Penn. St., 398 879 Brown v. Brooks, 3 Ind., 518 910 Brownv. Autrey, 3S. E. Rep., 669 912 Brooker v. Coffin, 5 Johns., 190 67, 84, 97, 103, 155 Brooks V. Harrison, 91 N. Y., 83 - - - - - - - 57 Brooks V. Hauford, 15 Abb., 342 371 Brooks V. Dutcher, 36 N. W. Rep., 128 - - - - 823, 839, 891, 914 Brite v. Gil), 3 T. B. Mon., 65 100, 101, 839 Bricker v. Potts, 13 Penn. St., 300 - - 134, 137 Brittain v. Allen, 3 Dev. L., 167 281, 634, 625, 773 Brockerman v. Kvser, 1 Phil., 343 405 Briggs V. Byrd, 13 Ired. (N. C.) L., 877 775, 818 Briggs V. Garrett, 111 Penn. St.; 414 - - - 891, 476 585, 539, 540 Brickett v. Davis, 31 Pick., 404 - - - - - - 792, 797 Brunson v. Lynde, 1 Root (Conn.), 854 ----- - 825 Bridgman v. Hopkins, 34 Vt., 533 890, 892 Brennen V. Tracy, 3 Mo. App.j 540 - - 938 Bryan v. Gun, 37 Ga., 378 - . - 661 Buckley V. O'Niel, 113 Mass., 198 143 Buckley v. Knapp, 48 Mo., 153 ...... - 878 Buck V. Hersey, 31 Me., 558 187 Burkett v. McCartv, 10 Bush, 758 355 Burns v. Webb, 1 Tyler (Vt.), 17 790, 791 Busher v. Sculley, 107 Ind., 346 - - - - - - - -']56 Bush v. Prosser, 13 Barb., 231 - ...... 104,801 Burlingame v. Burlingame, 8 Cow., 141 100, 434 Burtch V. Nickerson, 17 Johns., 319 - - 98, 170, 196, 605, 616, 617 Bunton v. Worley, 4 Bibb, 38 - - . . - . ... 789 Butterfield V. Buflfum, 9 N. H., 156 ... - 123, 124, 255, 8X7 Bullock V. Koon 9 Cow., 30 .-826 Bullock V. Com., 4 Wend., 531 - -.....-.127 Butler V. Wood, 10 How. (N. Y.), 222 133 631 625 Butler V. Howes, 7 Cal., 87 - 865 Buttler V. Man, 9 Abb. N. C. (N. Y.), 49 741, 746 Burt y. McBaine, 29 Mich., 360 161 {q2 Burke V. Ryan, 36 La. Ann., 951 ------. '469 Burke v. Miller, 6 BlackC, 155 7q"i ooq Burgwin v. Babcock, 16 111., 28 . ' 550 Buddington v. Davis, 6 How. Pr., 401 . - . . ckq Buhler v. Wentworth, 17 Barb., 649 ... . . Ita Buhler v. Steever, 2 Whart. (Penn.), 813 §98 Burson v. Edwards, 1 Ind., 164 j^ijrg AMEEICAN OASES. Xllii Burford v. Wible, 33 Penn. St., 95 - - - .... 803 Burnett v. Smith, 23 Hun (N. Y.), 50 - - . . - 886 Burnett v.Simpkins, 34 111., 364 .... §75 Burkhalterv. Coward, 16 S. C, 435 - . ... §80 Burton V. Marsh, 6 Jones (N. C), L., 409 .... 819 834 Burton v. Burton, 3 Iowa, 316 ..... 97 JOO 105 64'' Burton v. Holmes, 16 Iowa, 353 ' ' '816 Burton v. Worley, 4 Bibb, 38 - ' . . . . .789 BuUard v. Lambert, 40 Ala., 304 ... . . . . ' 793 Byam v. Collins, 19 N. E. Rep., 75 - - . . 329, 330, 481, 485 Byers v. Martin, 2 Col. T., 605 51 581 Byer v. Fireman's Jour. Co., 11 Daly, 357 - . . . 258' 259 Byrket v. Monohan, 7 Blackf., 83 - 824 Bynum v. County of Burke, 3 S. E, Eep., 170 833 Call V. Larabee, 60 Iowa, 313 ---..-.-. 52 Carroll v. White, 38 Barb., 616 - - - . . 183, 190, 818 Camp V. Martin, 33 Conn., 86 - - - . . . 189,190 Carpenter v. Dennis, 3 Sandf., 305 - - . 193, 617,' 641 Campbell v. Bannister. 79 Ky., 305 ' 397 Campbell v. Butts, 3 N. Y., 173 350, 794 Campbell v. Campbell, 54 Wis., 90 - - - - 353, 879 Carter V. Carter, 63 111., 489 - 274 Carter v. Andrews, 16 Pick., 1 . . 113, 113, 118, 300, 607, 630 Carter v. McDowell, Wright (Ohio), 100 - - - - - - 773 Cavanaugh V. Austin, 43 Vt., 576 - .333 Calkins v. Summer, 13 Wis., 193 - . . . 419, 449, 456, 458 Care v. Shelor, 3 Munf., 193 - - 616 Case V. Buckley, 15 Wend., 837 103, 111, 249, 603 Case V. Marks, 20 Conn., 248 889 Cass V. N. O. Times, 27 La. Ann., 314 - - . >• - - - 886 Cass V. Anderson, 33 Vt., 183 837 Carlock v. Spencer, 7 Ark., 13 -------- 136 Canterbury V. Hill, 4 Stew. & P., 234 135,645 Casselman v. Windship. 3 Dak., 292 61, 255 Caruth V. Richeson, 9N. W. Rep.,633 657 Carmichael v. Shell, 21 Ind., 66 306 Cannon v. Phillips, 3 Sneed, 185 644 Castle V. Houston, 19 Kan., 417 658 Gates V. Bowker, 18 Vt., 23 753, 805 Casey v. Hulgan, 21 N. E. Rep., 322 844 Callowav v. Middleton, 2 A. K. Marsh. (Ky.), 373 - - - - 884, 896 Chamberlain v. Vance, 51 Cal., 75 383, 384, 880 Chaddock v. Briggs, 13 Mass., 238 87, 101, 187 Chapin v. Lee, 18 Neb., 440 - - - - 41, 140, 168, 198, 849 Chapin v. White, 103 Mass., 189 807 Child V. Homer, 30 Mass., 510 50, 520, 904 Chenery v. Goodrich, 98 Mass., 234 55 Christol V. Craig, 80 Mo., 867 88, 64q Chaplin v. Cruikshauks, 3 Har. & J., 347 100 Chapman v. Gillet, 3 Conn., 40 127 Chapman V. Od way, 87 M^s., 593 - - - - - - - 662,803 Chapman v. Smith, 18 Johns., 78 605, 644 Chipman v. Cook, 3 Tyler, 456 184, 186, 786 Chaffin V. Lynch, 6 S. E. Rep., 474 394, 513 Chandler v. HoUoway, 4 Port. (Ala.), 17 644. 826 Chambers v. White, 3 Jones (N. C), L., 383 646 Chubb V. Gsell. 84 Penn. St., 114 773, 833 Cherry v. Slade, 3 Hawks (N. C), 400 799 Chace v. Sherman, 119 Mass., 387 809 Chandler v. Robinson, 7 Ired. (N. C.) L,, 480 828 Chadsey v. Thompson, 137 Mass., 136 881 Chase v. Marks, 20 Conn., 248 - - - - - - - 890 Cincinnati, etc., Co, v. Timberlake, 10 Ohio St., 548 - - - - 55 Xliv TABLE OF CASES CITED. QQA City of Plymouth v. Miller, 20 N. E. Rep., 335 - - "„ gl. gfg 380 Clay V. People, 86 111 147 --■::: f ' ^. ' gl; 918 Clark V. Binney, 2 Pick., 113 - - ' 259 Clark V. Crietzburg, 4 McCord, 491 - - ^g g^,^ Clark V. Munsell, 6 Met., 378 - - - - 352, d&5, lil, no, oi( Clarkv. Dibble, 16 Wend., 601 _ ^JJ Clark V. Brown, 116 Mass., 509 ■ .,13 Clarksonv. Vincent, 32 La. Ann., 613 „_ Clarkson v. McCarty, 5 Blackf., 574 ?l^ Cleveland V. Detweiler. 18 Iowa, 299 i7n iQo qvB Clifford V. Cochrane, 10 Brad., 570 "0, 19.., a to Claflinv. Smith, 66 How., 168 - - '*" Clews V. Bank of N. Y., 11 N. E. Rep., 814 , «^* Clemant v. Creditors, 37 La. Ann., 693 °*;!: Clements v. Maloney, 55 Mo., 353 - °«" Coburn V. Harwood, Minor, 93 *"' ^X, Colby V. Reynolds, 6 Vt., 489 - - - ' ' qJ .q %n Kn sq« Cooper y. Greeley, 1 Den., 347 - - - - 35, 49, 50, 55, 899 Cooper V. Marlow, 3 JMiss., 188 oan ohr Cooper V. Perry, Dudley, 247 - - - - - ; " 3»0' «»» Cooper V. Stone, 24 Wend., 434 - - - 560, 568, 570, 572, 586, 587 Colbert v. Caldwell, 3 Grant's Cas., 181 - - - ' " " a« CoUyer V. CoUyer, 3 N. Y. S., 310 - , " „°S Cornelius v. Van Slyck. 21 Wend., 70 104, 119, 353 Comfort V. Fulton, 39 Barb., 56 - - - ' ' .'n ioa Lo7 Coonsv.Roblnson, 3 Barb., 635 - - - - 121,123,124,827 Cole V. Grant, 18 N. J. L., 327 - - - - " 124, 136 Cole V. Perry, 8 Cow., 314 ...---- 899, 9^t» Cole V. Wilson, 18 B. Mon., 313 8; Cook V. Barkley, 3 N. J. L. (1 Pen.), 169- - - - - - - 817 Cook V. Cook, 100 Mass., 194 317, 869, 870, 871 Cook V. Hill, 3 Sandf., 341 84^ Cook V. O'Brien, 2 Cranch, C. Ct., 17 ««° Cook V. Rief, 53 N. Y. S. C, 302 Iw Cox V. Bunker, Mon-is, 269 97 Collins V. Whitehead, 34 Fed. Rep., 131 21^ Collins V. Stephenson, 8 Gray, 438 - - - - - -,",„' °^° Coffin V. Coffin, 4 Mass., 1 - - - 397, 430, 431, 434, 864, 910, 911 Cochran v. Melendy, 59 Wis., 307 407 Coombs V. Rose, 8 Blackf., 155 - - 53b Cowley V. Pulsifer, 137 Mass., 392 545 Coleman v. Southwick, 9 Johns., 48 601, 911, 930 Coleman V. Playsted, 36 Barb., 36 818 Coldwell V. Abbey, Hard. (Ky.). 529 624 Continental Life Ins. Co. v. Rogers, 10 N. E. Rep., 243 ... 834 Cottrill V. Cramer, 59 Wis., 331 845 Conroe v, Conroe, 47 Penn. St., 198 898 Conleev. State, 14 Tex. App., 223 - - - - - 977,980 Coulson V. State, 16 Tex. App.. 189 - 977 Com. V. Andrews, 2 Mass., 308 139 Com. V. Clapp, 4 Mass., 163 - - 86, 50, 81, 533, 535, 637, 539, 937, 966 Com. V. Kneeland, Thatch., ■346 - - 55, 386, 390, 944, 945, 960, 962 Com. V. Batchelder, Thatch., 191 61 Cora. V. Wright, 2 Cush., 46 71, 581 Com. V. Stevenson, 8 Pick., 354 138 Com. V. Ayer, 3 Cush., 350 141, 961 Com. V. Blanding, 30 Mass., 304 - - - 171,230,423,424,557,581 Com. V. Wardwell, 136 Mass., 164 - - - - - 179, 406, 977 Com. V. Morgan, 107 Mass., 199 230 Com. V. Snelling, 33 Mass., 337 - 305, 807, 316, 747, 795, 797, 938, 977 Com. V. Bonner, 9 Met., 410 818 Com. V. Damon, 136 Mass.. 448 349, 939 Com. V. Featherston, 9 Phil., 594 396 Com. V. Godshalk, 13 Phil,, 575 445, 553 AMERICAN CASES. xlv Com. V. Child, 30 Mass., 198 609 Com. V. Giles, 1 Gray, 466 ... .... 745 Com. V. Morris, 1 Va. Cas. , 176 - ..... 799 Com. V. Harmon, 3 Gray, 289 809 Com. V. Holmes, 17 Mass., 336 - - . - . 937, 943, 974 Com, V. Chapman, 13 Met., 68 937 Com. V. Whitmarsh, T. Cr. Cas., 447 937 Com. V. Sharpless, 2 S. & R., 91 - - - . . . 943, 974 Com. V. Hardy, 1 Ashm., 410 - 961 Com. V. Spratt, 14 Phil. (Penn.), 865 963 Com. V. Talbox, 1 Cush., 66 - - - - . - 974 Com. V. Sweeney, 10 S. & R., 173 - . - 977 Com. V. Chambers, 15 Phil. (Penn.), 415 - 977 Com. V. Varney, 10 Cush. (Mass.), 402 - .... 977, 980 Com. V. Dorrance, 14 Phil. (Penn.), 671 - - - 978 Com. V. Buckingham, Thaoh. (Mass.) Cr. Cas., 39 - . 980 Com. V. Harrison, 3 Gray, 389 . 980 Com. V. Muser, 1 Brews. (Penn.), 493 - - - - - 980 Commons v. Walters. 1 Port. (Ala.), 333 - 800 Cramer v. Noonan, 4 Wis., 231 37, 64, 624 Cramer V. Riggs, 17 Wend., 309 69,70,83,169,560 Cramer v. GuUinane, 3 McArthur. 197 304, 860 Craig V. Catlet, 5 Dana (Ky.), 328 .... 889 Craig V. Brown, 3 Blaokf., 44 - - 177 Crane V. Waters, 10 Fed. Rep., 619 538,583,585 Crane v. Crane, 83 Ind., 459 - 748 Cracraft v. Cochran, 16 Iowa, 301 645 Croskeys v. Uriscol, 1 Bay (S. C), 481 - 853 Crawford V. Wilson, 4 Barb., 504 ...... 98,102 Crone v. Angell. 14 Mich., 840 124, 136 Crookshank v. Gray, 20 Johns., 344 - - ... 131, 633 Cruikshank v. Gordon, IN. Y. S., 448 - - - - 86, 190, 814, 916 Crosswell v. Weed, 25 Wend., 631 - 609, 616 Crotty V. Morrissey, 40U1., 477 806.809,810 Crocker v. Hadley, 1 N. E. Rep., 734 911 Crow T. People, 93 111., 231 979 Cunningham V. SQiith, 3 S. &R., 440 366 Curtis V. Mussey, 6 Gray, 261 ■ .... 378, 530, 535, 537 Culver V. Van Anden, 4 Abb., 375 597 Cummins V. Butler, 3 Blackf., 190 - - - - - - - 643,644 Cummen v. Smith, 2 S. & R., 440 753, 754 Dakota Territory v. Taylor, 1 Dak. Ty., 471 380 Dada v. Piper, 41 Hun, 254 469 Daltonv. Gill, 35Hun(N. Y.), 130 815 Dalton V. Higgins, 34 Ga., 433 - - 137 Dale V. Harris. 109 Mass., 193 500, 503 Dalrymple v. Lafton, 3 McMull. (S. C), 113 644 Day V. Backus, 31 Mich., 241 396 Day V. Woodworth. 13 How., 71 844 Daly V. Byrne, 1 Abb. N. Cas., 150 663 Dane v. Kenney, 25 N. H., 318 802 Darling v. Banks, 14 111., 46 1^° Davis V. Brown, 37 O. St., 326 - 9( -Davisv. Sladden, 31Pac. Rep.. 140 ,3111 Davis V. Johnson, 3 Bailey, 579 120, 283 Davis V. Ruflf, Cheves. 17 - 193. '81 Davis V. Davis, 1 N. & M., 290 196, 818 Davis V. Matthews, 3 Ohio, 257 660 Davis V. Lyon, 91 N. C , 444 - 799 Davisv. Farrington, 1 Miss., 304 i„% o^o Dayton v. Rockwell, 11 Wend., 140 137, 253 Deckey V.Andrews, 33 Vt., 55 10« Xlyi TABLE OF OASES CITED. Dexter v. Spear, 4 Mason, 115- - - - - - - - -37 Dexter v. Taber, 12 Johns., 239 104, 305, 306 Decker v. Gaylord, 85 Hun, 584 526 De Pew V. Leal, 5 Duer (N. Y.), 663 746 De Pew V. Robinson, 95 Ind., 109 ... - . 183 Deford v. Miller, 3 Penn., 103 - - - 84 De Senancour v. SocieteL. P., 16 N. E. Rep., 553 - ... 231 Dempey v. Paige, 4 E. D. Smith, 318 805, 831 Detroit Daily Post v. MoArthur, 16 Mich., 447 - - - 895, 541, 878 Devo V. Brundage, 18 How. Pr., 331 - ... 641 Deiinpewolf v. Hills, 53 N. Y. Sup. Ct., 105 - - - - - 736 Demarest V. Harring, 6Cow., 88 - ... 98,103,187 De Moss V. Haycock, 15 Iowa, 149 - - - - 371, 375 T>3 Forrest v. Scote, 16 Johns., 133 635 Dewit V. Greenfield, 5 Ohio, 225 .... . . 834 Denver, etc., R. R. Co. v. Henderson, 13 Pac. Rep., 910 ... 834 Dial V. Holton, 6 Ohio St., 338 - - ^ . . 97, 534, 526 Dias V. Short, 16 How. Pr., 333 105, 597 Dickey V. Andrews, 33 Vt., 55- .-.:.... 107 Diston V. Rose, 60 N. Y., 133 110 Dillard v. Collins, 25 Gratt. (Va.), 343 380, 879 Dickinson v. Barber, 9 Tyng, 318 371, 790 Dicken v. Shepherd, 38 Md., 399 616, 779 Diotv. Tanner, 20 W,end., 190 634,645 Diossy V. Rust, 46 N. Y. Sup. Ct., 374 746 Dixon V. Allen, 69 Cal., 527 778 Dodds V. Henry, 9 Mass., 263 101, 178 Doe V. Roe, 32 Hun, 638 163 Donaghue v. Coffey, 53 Conn., 48 -, 61, 63, 64, 558 Dole V. Van Rensselaer, 1 Johns. Cas., 330 175, 177 Dole V. Lyon, 10 Johns., 447 353,356,656 Dolloway v. Turrell, 26 Wend., 383 ..'.-... 177 1 Doss V. Jones, 5 How. (Miss.), 158. - . . . . - 348, 774 Dodge V. Bradstreet, 59 How. Pr., 104 - - - - . . - 864 Dodge V. Colby, 108 N. Y., 445 311 Dorsey v. Whipps, 4 Gill (Md.), 457 634 Dottarer v. Bashey, 16 Penn. St., 304 636 Doullut V. McManus, 37 La. Ann., 800 -.-..-. 640 Downey v. Dillon, 53 Ind. 443 657, 658, 797, 823 Downs V. Hawley, 113 Mass., 237 ----..-- 663 Dowdney v. Volkening, 37 N. Y. Sup. Ct., 313 748 Do wall V. Griffith, 3 Har. & J., 30 773 Doherty v. Brown, 10 Gray, 350 806 Dooling V. Budget Co., 10 N. E. Rep., 809 63 331 Dougev. Pierce, 13 Ala., 137 790 791*814 Downing V. Brown, 3 Colo., 571 -......' -'796 Douglass V. Tousey, 2 Wend. (N. Y.), 353 - - - - 825 880 930 Douglass y. Craig, 8 La. Ann., 639 . . ' sra Drakely v. Gregg, 75 U. S., 409 831 Drummond v. Leslie, 5 Blackf., 458 ....... m Duncan v. Brown, 15 B. Mon., 186 • 50 907 Dunn v. Winters, 8 Humph., 513 --.-... R7fl2 Dun V. Hall, 1 Carter (Ind.), 345 fiO q?8 Dufresne v. Weise, 46 Wis., 390 in^' snd Dunnell V. Fisk, 53 Mass., 554 117 lis ftVo Dukes V. Clark, 3 Blackf., 20 ifin Dugaldv. Coward, 96 ISr. C, 368 ifiq hsq Dunsee v. Norden, 36 La. Ann., 78 - 10s, esd Dunham \. Powers, 42 Vt., 1 ^i"q 7^ Dunlap V. Glidden, 31 Me., 435 ... . ' ' ^^^' T^q Duel V. Agan, 1 Code Rep., 134 - - . . " «n« Dudley v. Briggs, 141 Mass., 582 I " qor Dudley v. Horn, 31 Ala., 379 '98 108 AMERICAN CASES. xlvii Dwinnells V. Aiken, 2 Tyler (Vt.), 75 - 800 Dwyer V. Fireman's J. Co., 11 Dalv (N. Y.), 348 49 Dyer v. Morris, 4 Mo., 214 " ■ 159 618 Eames V. Whittaker, 123 Mass., 343 139,501 Easley v. Moss. 9 Ala. , 2(.iG - - ■ 389, 407] 509 Eastland v. Caldwell, 2 Bibb, 2:^ - .... J02' 660 884 Eagan v. Gantt. 1 McM. (S. C). 46S - - ' 790' 791 Easterwood v. Quinn, 2 Brev. (S. C), 64 . . - ' 793 Eastburn v. Stevens, Litt. (Ky.) Sel. Gas., 83 - . - - 803 Eaton V. Lancaster, 10 Atl. Rep.. 440 - ..... g;s4 Eckart V. Wilson, 10 S. & R., 4t .... 130.610 Eccles V. Shannon, 4 Har., 193 * 126 Edsall V. Brooks. 3 Rob., 28i . . 64, 83, 137, 272, 545, 5.57 Eden v. Le^are, 1 Bay, 171 - - - . ' ' 272 Edgerly v. Swain, 33 N. H., 478 - 616 Edgar V. McCutchen, 9 Mo., 71)8 - 624 Edwards v. Chandler, 14 Mich.. 471 - .... 53 339 Edwards v. Howell. 10 Ired. (N. C.) L., 311 ' 853 Edwards v. Kansas City Times, 23 Fed. Rep., 813 - 885, 888, 894, 895 Edwards v. Burris, 60 Cal., 157 - ' . . . . 213 Eislie V. Walther, 4 N. Y. S.. 385 88 Elam V. Badger, 23 111., 498 - . 159,283,408,641,677 Else V. Ferris, Anth. N. P. , 23 - - - - 194,791 Ellis V. Kimball, 33 Mass., 133 - - . 258, 640, 698 Ellis V. Buzzell, 60 Me.. 210 - - - - - - - 796 Ellsworth V. Hayes, 71 Wis., 427 - ... 86, 201, 505 Elsasv. Brown, 68 Ga., 117 - - - - 88 EUiot V. Bovles, 31 Penn. St., 65 - - - 772 Emery V. M'iller, 1 Den., 208 - ... 123,827 Emerson v. Morrell, 55 Ind.. 265 156, 163 Erber v. Dun, 4 McCrary C. Ct. ,160 ... . 402 Estes V. Estes, 75 Me., 478 - - 249 Evening News v. Trvon. 42 Jlich., 549 - - - 537. 841, 886, 895, 910 Evans V. Tiffins, 2 Grant (Penn.), Cas.. 451 - - - - 624 Evans v. Smith, 5 T. B. Men. (Kv.), 363 885, 894, 895 Eviston V. Cramer, 47 Wis., 659 - - - 70, 83. 177, 178, 335, 846 Everette v. Stowell, 14 Allen, ;J2 - - - - - - 830 Express Printing Co. v. Copeland, 64 Tex., 354 ... 577 Fawcettv. Clark, 48 Md., 494 - - - - - 395 Fawcett v. Charles, 13 Wend., 47-3 - - - 49, 57, 403 Farnsworth V. Storrs, 5 Cush., 412 - - - 65, 5a0 Fahrv. Haves(N. J.). 13 Atl. Rep.. 261 - . .« - 345,399 Fagg V. Boston & L. R. Co., 20 N. E. Rep., 109 - 344, 361, 364, 378 Fagg V. Roberts, 67 111., 485 - - - - 662, 886, 907, 918 Fairchilds V. Adams, 11 Cush., 549 530 Fallenstein V. Boothe, 13Mo., 427 - - - - - 818 Fahey V. Crotty, 39N. W. Rep., 876 876 Ferov. Ruscoe, 4N. Y.. 163 . - ... 347,785 Ferry V. Foot, 13 La. Ann., 894 853 Fitch V. De Young, 5 Pac. Rep., 364 - 49 Finch V. Vifquain, 11 Neb., 280 .... . 50, 85 Finch V. Finch, 31 S. C. 343 . 87 Finch V. Gridley, 35 Wend,, 469 753,764 Filber V. Dauterman, 36 Wi.s., 520 - - - - 97.133 Fisher v. Rottereau, 2 JlcCord, 189 - - - - . - 105 Fitzgerald v. Robinson, 113 Mass., 371 - - - 135, 170, 530 Fitzgerald v. Stewart, 53 Penn. St.. 343. - . - - - 824 Fitzgerald v. Redfield, 51 Barb., 484 - - 170, 183, 192 Fish V. Soniat, 33 La. Ann., 1400 ... 397 Fitzsimmons v. Cutter, 1 AiU., 33 626 Fiddler V. Delevan, 20 Wend., 27 661 Flitcraft v. Jenks, 3 Whart., 158 - - ... 321 Flammingham v. Boucher, Wright (Ohio), 748 - - - 773 d Xlviii TABLK OF CASKS CITED. Fonville v. Nease, Dudley. 303 -,-■---- 229, 236, 7G3 Foot V. Brown, 8 Johns., 64 .„ ' ' ' ' . 65 360 Forbes V. Johnson, 11 B. Miin., 48 . - - - ^ 333' 786 Forbes v. Meyers, 8 Blackf., 74 '„{ loc Fowle V. Eobbins, 12 Mass., 498 „. „„ • ,„, Foster V. Scripps. 39 Mich., 276 189, 395, .^91 Foster v. Small, 3 Whart., 138 ' ^™ Fox V. Vanderbeck, 5 Cow., 613 *' " • Fowlel- V. Chicester, 36 O. St., 9 - -">«' °™ Forrest v. Hanson, 1 Cranch, C. C, 163 - - - - " - ^'J Fowles V. Bowen, 30 N. Y., 29 834, 33o, 385, 400, 4C8, 493, (75, 782 Forsvth V. Edmiston, 5 Duer, 653 "T^ Fornan v. Childs, 66 111.. 544 °^° Fossv. HUdreth, 93 Mass.,76 - n^Q roR Folsom V. Brown, 35 N. H., 114 - 6o9, <96 Franklin V. Brown, 67 Ga.. 272 - °' French v. Creath, Breese (III.), 81 - - - - " " " ^"» Fry V. Bennett, 38 N. Y.. 324 - - - 190, 567, 577, 589, 630, 8d9, 877 Frankv. Dunning, 38 Wis., 270 j^ Frank V. Kaninsky, 109 111., 36 '°- Freethy v. Freethy, 43 Barb., 641 °oo Francis v. Wood, 75 Ga., 648 ^o« Freeman V. Price, 3 Bailey (S. C), 115 «"» Frisby v. Stake, 9 S. W. Rep., 463 »/« Fuller V. Dean, 81 Ala., 654 ,00 a^a Fuller V. Fenner, 16 Barb., 333 - ... - iv,i, S5» Fuller V. Delevin, 20 Wend., 57 iJ^ ,,='„ okJ Funk V. Beverly, 13 N. E. Rep., 573 .--,-- 156, 157, 353 Gage V. Robinson, 12 Ohio, 350 - " - 653 Gage V. Shelton, 3 Rich., 243 98, 103, 105, 626 Garr v. Seldon, 6 Barb., 614 - - 182, 183, 184, 189, 419, 469, 470, 561 Gi.nvreauv. Sup. Pub. Oo..'63 Wis., 403 - - - - - 189 Garrett v. Dickerson, 19 Md., 418 271, 27ij Gateb v. Meredith, 7 Ind., 440 - - - - - - ; 325, 371 Gazyski v. Colburn. 11 Gush;, 10 360, 364, 066 Gassett v. Gilbert, 6 Gray, 94 - - - 895, 404, 485, 509, 526, 533 Gardner v. Dyer, 5 Gray, 3J - 626 Gardinier V. Knox, 27Hun(N. Y.), 500 648 Gault V. Babbitt, 1 Brad. (111.), 130 656, 832, 833 Gates V. Bowker, 18 Vt., 23 - - - 820 Galloway v. Courtney, 10 Rich. (S. C), 414 - - - - 883, 894, 895 Gaines v. State, 7 Lea (Tenn.), 410 962, 963 Gabe v. McGinnis, 68 Ind., 533 51, 124. 290 Geary v. Burnett, 53 Wis., 444 108, 151 Georgia v. Kepford, 45 Iowa, 48 ...... 851, 859 Geisler v. Brown, 6 Neb., 254 870 Giles V. Stole. 6 Ga., 376 - 50 Gibbs V. Dewey, 5 Cow., 503 98, 111, 139 Giddens V. Mirk, 4Ga.,i360 98,103,183 Gibson V. Williams. 4 Wend., 330 100,808,767,775 Gibson v. Cincinnati Enq., 3 Flip. C. Ct., 121 815 Gillett V. Maison, 7 Johns., 16 117 Gilman v. Lowell, 8 Wend., ^Ti 131 Gidney v. Blakes, 11 Johns., 54 258, 615, 617 Girard v. Beach, 3 E. D. Smith, 337 261 Gilmer v. Eubanks, 13 111., 271 816, 321, 323 Gilbert v. The People, 1 Denio, 44 419, 424, 445 Gilbert V. Field, 3 Cai., 329 616 Gillis V. Peck, 20 Conn., 228 802 Gilmor v. Borders, 3 Miss., 824 - - 823 Godshalk v. Metzgar, 17 Atl. Rep.. 315 53, 54 Gott V. Pulsifer, 133 Mass., 335 55, 317, 333, 400, 566, 567, 568, 569, 570, 573, 589, 871 Gore V. Bletben, 31 Minn., 80 - - 85, 169, 179 AMERICAN CA8E8. Xlix Gorham V. Ives, S Wend., 534 - - - 100 Gottbehuet v. Hubacheok, 36 Wis., 515 - 177 Golderman v. Stearns, 73 Mass., 181 • 199 Goodrich v. Hooper, 97 Mass., 1 - . 251 Goodrich V. Walcott, 3 Cow., 281 - 647 Gorman v. Sutton, 82 Penn. St., 247 347 785 800 Goughv. Goldsmith, 44 Wis., 262 - - - . . . . ' ^57 Goodspead v. East Haddam Bank, 22 Conn., 531 363 Goodbeard V. Ledbetter, 1 Dev. &Bat., 12 - - - - 520 903 907 Gosling V. Morgan, 32 Penn. St., 273 '618 624 Gordon V. Spencer, 2 Blackf., 286 - 814 Gomez v. Joyce, 1 N. Y. S., 337 845 Gough V. St. John, 16 Wend., 646 - .... - 876 Gould V. Weed, 12 Wend., 12 - 903 Grorse v. State, 71 Ala., 7 - - - ... 964 Greeley v. Cooper, 1 Den.. 347 -..-....37 Gribble v. Pioneer Press Co.. 34 Minn., 348 50, 308, 333, 350, 767, 831 Griffin v. Moore, 43 Md., 846 - - 135 163 Gray v. Ellis, 32 La. Ann., 249 - ' 313 Gray v. Shelton, 3 Rich., 243 133 Gray v. Pentland, 4 S. & R., 420 821, 542 Gray v. Nellis, 6 How. Pr., 290 646 Griffon v. Blane, 12. La. Ann.. 5--.---- 213 Green V. Long, 3 Cai. Rep., 91 - 254 Grove V. Brandenburg. 7 Blackf., 2-34 ..... . 449 Growan v. Kukkuck, 59 Iowa, 18 520, 903 Griggs V. Vickroy, 12 Ind., 549 643 Grant V. Hover, 6 Munf. (Va.), 13 793 Gunning V. Appleton, 58 How. Pr., 471 - ...... 283 Gnth V. Lubach, 40 N. W. Rep., 681 86, 144 Hamilton V. Gleen, 1 Penn. St., 340 828 Hamilton v. Eno, 81 N. Y.. 116 - - . 81, 339, 396, 533, 537, 578 Handv. Winton, 38N. J. L., 133 - .... 50,177 Hartsock v. Reddick, 6 Blackf., 255 . ... 64, 460 Harding v. Brooks, 5 Pick., 244 - - - 105, 118, 265, 273, 834 Hall V. Adkins, 59 Mo., 144 114,395 Hall V. Montgomery, 8 Ala., 510 127, 616 Ham V. Wickline, 36 Ohio St., 81 126 Halstead v. Nelson, 36 Hun, 149 133, 397, 399, 403 Harper V. Delph, 3 Ind., 335 - .... 149,383,625 Hallock V. Miller, 3 Barb., 630 204 Hastings V. Stetson, 13 Lathrop, 339 .... 243,353,841,889 Hastings v. Lusk, 32 Wend., 410 331, 405, 419, 424, 444, 448. 789 Hatch V.Potter, 2 Gilm. (111.), 735 339,333,785 Hatch V. Lane, 105 Mass., 394 ...... . . 407 Hart V. Coy, 40 Ind., 553 - - ..'.... 26L Hai-t V. Reed, 1 B. Mon., 166 - 321 Hart V. Crow, 7 Blackf., 351 366 Hart V. Baxter, 47 Mich., 198 .... 434,435,460,468,470 Hartford v. State, 96 Ind., 461 577, 939, 977 Hahneman Life Ins. Co. t. Bebee, 48 111., 87 609 Harveyv. Coffin, 5 Blackf., 566 616 Hansbrough v. Stinett, 35 Gratt., 495 ....... 633 Hawks V. Patton, 18Ga.,53 - 643 Hallyv. Nees, 27I11.,411 643 Harmon V. Carrington, 8 Wend., 488 ... - . 647 Harmon v. Cundiff, 33 Va.. 239 253 Hawkins V. Globe Pub. Co., 10 Mo. App., 174 663 Hawkins V. N. O. Printing Co., 29 La. Ann., 134 .... 355 Hawyer v. Hawyer, 78 III., 413 - 664 Harry v. Constantin, 14 La. Ann., 783 772 Harttranft V. Hesser, 34 Penn. St., 117 793 Haywood v. Foster, 16 Ohio, 88 794 r TABLE 01' CASES CITED. Hampton v. Wilson, 4 Dev. (N. C.) L., 468 - - - - ; " 802 Harbison v. Shook, 41 111., 141 810, 847, 876, 881 Hancock v. Stephens, 11 Humph. (Tenn.), 507 - - - 819 Haight V. Haight, 19 N. Y., 468 - - - - ■ " iXo Haight T. Cornell, 15 Conn., 74 290 Haight V. Hoyt, 50 Conn., 583 - 925 Hanev v. Frost, 34 La, Ann., 1146 88 Harrison v. Findlay, 33 Ind., 265 130 Hatfield v. Gano, 15 Iowa, 177 132 Hatfield v. Lasher, 81 N. Y., 246 162 Hawley v. Burgess, 9 Ala., 728 103. Havs V. Mitchell. 7 Blaokf.,' 473 104, 105, 624 Hays V. Hays, 1 Humph., 403 130,610 Hays y. Mather, 15 Brad., 30 - 194,291 Hays V. Ball, 72 N. Y., 418 392,301 Haynes v. Eichey, 30 Ind., 76 - 149, 171 Haynes v. Cowden, 37 Ohio St., 292 878 Haynes V. Leland, 39 Me., 233 355 Harcourt v. Harrison, 1 Hall (N. Y.), 474 179 Havemeyer v. Fuller, 10 Abb. N. C, 9 .... 250, 295, 623 Hanning v. Bassett, 12 Bush, 361 323 Haeley v. Gregg (Iowa), 38 N. W. Rep., 416 ■ - - - 87, 331, 349 Harwood v. Keech, 6 Thomp. & C. (N. Y.), 665; 4 Hun, 389 - 396 Harris v. Huntington, Tyler, 147 - - - - - - 383 Harris V. Burley, 8 N. H, 256 - - 603,616 Harris v. Purdy, 1 Stew., 231 616, 828 Harris V. Woody, 9 Mo., 113 -' - -' 616 Harris v. Terry, 98 N. C, 136 105 Hanners v. McClellan, 37 N. W. Rep., 389 815, 891 Hann v. Wilson, 38 Ind., 296 835 Haley V. State, 63 Ala., 83 - 938 Hethi-ington v. Sterry, 38 Kan., 486 70, 83 ^erman v. Bradstreet, 19 Mo. App., 237 ... - - 74 Hess V. Fackler, 25 Iowa, 10 - .119 Henry V. Hamilton, 7 Blackf., 506 - 137 Heilman v. Shanklin, 60 Ind., 424 - - - - 138, 349, 886, 894, 895 Heller v. Howard, 11 Brad., 554 - - - - 233, 292, 333, 516, 517 Herst V. Borbridge, 57 Penn. St., 63 . - - - 624 Heft V. Jones, 9 Weekly Notes (Pa.), 541 746 Herriok v. Lapham, 10 Johns., 381 779, 781 Hersh v. Ringwalt, 3 Yeates, 508 804 Herr v. Cromer, Wright (Ohio), 441 - ... §23 Heslerr v. De Gant, 3 Ind.. 501 826 Hensonv. Veatch, 1 Blackf, 369 -----..-898 Hillhouse v. Dunning, 6 Conn. , 407 ------ 33, 37 Hillhouse V. Peck, 2 Stew. & Port. , 395 ... 97 io3 Hill V. Ward, 13 Ala., 310 - - - ... 205 213 Hill V. Canfield, 56 Penn. St., 454 831 Hinkle v. Davenport, 38 Iowa, 355 - - - - 333, 349, 360, 886, 895 Hickley v. Grosjean, 6 Blackf., 351 - - - . 634 Hicks V. Rising, 34 111., 516 --....... 798 Hicks V. Walker, 3 Greene (Iowa), 440 ... -^ . . 865 Hitchcock V. Moore, 37 N. W. Rep., 914 - . - 833 876 878 Hickman V. Jones, 76 U. S., 551 - ' . ' 831 Hoagv. Hatch, 23 Conn., 590, 98,99,100,103 Hoagv. Cooley, 33Kan.,387 . ' 87 Hotchkiss V. Oliphant, 2 Hill, 510 - - . . . . - 55 560 Hotchkiss V. Olmstead, 37 lad., 34 ' g06 Hollings worth v. Shaw, 19 O. St., 430 - - . . . . 99 Hogg V. Willson, 1 N. & M., 216 - . - . . . .105 Hogg V, Dorrah, 3 Port, 312 ... - - 178 179 Hooleyv. Burgess, 9 Ala., 728 119 Hopkins V. Beedle, 1 Cai., 347 - - - . 131, 133 133 134. igg 355 Hopkins V. Smith, 3 Barb., 599 ---....' goi 837 AMERICAN CASES. 11 Holt V. Turpin, 78 Ky., 433 - 136 Homey v. Bois, 1 Penn.. 13 133 Hooper V. Martin, 54 Ga., 648 133 Howard v. Thompson, 21 Wend., 319 - - - - 83, 407, 543, 788 Howard v. Stevenson, 3 Treadw., 408 --.... 140 Howard v. Patrick, 43 Mich., 131 876 Howard v. Sexton, 4 N. Y., 157 850, 775 Hood V. State, 56 Ind., 363 - - I53 Hook V. Hackney, 16 S. & R.. 385 177 Hook V. Hancock. 5 Munf. (Va.). 546 - - .... 799 Hovey v. Rubber T. P. Co., 57 N. Y., 119 . - . . 287, 333 Hooker v. New Haven, etc., R'y Co., 14 Conn., 146 - - . - 863 Horner v. Englehardt, 117 Mass., 539 ... . 287 Horner V. Marshall's Adm'x, 5 Mun*., 466 ... . . 371 Hosmer V. Loveland, 19 Barb., Ill . 395 Holt V. Parsons, 38 Tex., 9 400 Hoar V. Wood, 44 Mass., 193 - . . 419, 434, 425, 435, 444, 447, 460 Hollis V. Meaux, 69 Cal., 635 ... . . . 445 How V. Bodman, 1 H., 528 - .- 536 Hoyt V. Smith, 83 Vt., 304 - 640 Howell V. Cheatem, Cooke (Tenn.), 347 --.---. 774 Howe V. Perry, 15 Mass., 506 785,813,889 Holmes v. Johnson, 11 Ired. (N. C.) L., 55 803 Holmes v. Brown, Kirby (Conn.), 151 ...... 821 Holmes V. Holmes, 44 111., 148 844,881 Holmes v. Jones, 3 N. Y. S., 156 - 935 Hornsbyv. South Carolina R. R. Co., 1 S. E. Rep., 594 - - 834 Housely v. Brooks, 30 111.. 115 - - - - 843, 847, 878 Horn V. Foster, 19 Ark., 346 853 Holton V. Mussey, 30 Vt., 865 - - .... 860, 861 Hoard v. Ward, 47 Vt., 657 - - - 867 Houghtailing v. Kelderhouse, 3 Barb., 530 - - - - - 876 Howells V. Howells, lOIred. (N. C.)L., 84 883,884 Holcomb V. Cornish, 8 Conn., 375 - ..... 961, 963, 964 Hodges V. The State, 5 Humph. (Tenn.), 113 ... 971, 973 Hubbard V. Rutledge, 57 Miss., 7 - - ... 335,881 Hudson V. Garner, 23 Mo., 423 617 Hume V. Arrasmith, 1 Bibb, 165 ........ 119 Hunckel v. Voneiff, 14 Atl. Rep., 500 - ... 398, 450, 458 Hunt V. Bennett, 19 N. Y., 173 - - 290, 405, 535, 538, 561, 573 Hurd V. Moore, 3 Oreg.,85 - 642 Hurtett V. Weines, 27 Iowa. 134 331 Huston V. McPherson, 8 Blackf., 662 - - - - - - 826 Huse V. Inter Ocean, 12 Brad. (111.), 637 - 54 Hutchinson V. Wheeler, 35 Vt., 330 791 Hutchinson v. Lewis, 75 Ind., 55 ....... 459 Hutts V. Hutts, 51 Ind., 581 148. 255, 815 Hutchins v. Blood, 25 Wend., 413 837 Humphreys v. Parker, 52 Me., 503 - 847, 878, 890 Hyde v. Bailey, 3 Conn., 463 - 791 Ingalls V. Allen, Breese, 283 112, 261 Inmanv. Foster, 8 Wend.,- 603 355,356,887 Irons V. Fuld, 9 R. I., 216 - - - .... 199 Jacobs V. Fyler, 3 Hill (N. Y.), 573 121, 133 Jackson v. State, 11 Ohio St., 104 116 Jackson V. Weisiger, 3 B. Mon., 314 .143 Jackson v. Stetson, 15 Mass., 48 - 774 James v. Hungerford, 4 Gill & J., 402 - - - - - - 134 James v. McDowell, 4 Bibb, 188 119, 303 Jarvisv. Hathaway, 3 John., 180 353,404,536 Jarnigan v. Fleming. 43 Miss., 711 - 856 Jacooks V. Ayers, 7 How. Pr., 315 652, 657 lii TABLE OF CASES CITED. Jauch V. Jauch, 50 Ind., 135 - - - - ' ' " ' !=? "Jean V. Hennesey, 69 Iowa, 273 .,„ .oi Jennings V. Paine, 4 Wis.. 358 ^^^' t^ Jenkins v. Cockesham, 1 Ired. (N. C.) L., 809 661 Jelliaonv. Goodwin, 48 Me., 287 - 786 Jenkinson v. Cockerliam, 4 Ired. (N. C.) L., 509 - - 802 Joannes V. Bent, 88 Mass., 236 -88,853 Joannes v. Bennett, 87 TAass., 169 397, 485, 486 Joannes v. Jennings, 6 Tliora. & C. (N. Y.), 138; 4 Hun, 66 - - - 658 Johnson V. Shields,! Dutch., 118 - - - - 98,103,140,193 Johnson v. Stebbins, 5 Ind., 3154 - - - - - - 37, 652 Johnson V. St. Louis Despatch Co., 2 Mo. App., 565 - - 49,268,361 Johnson v. Commonwealth, 14 Atl. Rep., 425 ..... 58 Johnson v. Robertson, 8 Port., 486 182, 190 Johnson v. Hitchcock, 15 Johns., 185 218, 223 Johnson V. Biadstreet Co., 77 Ga., 177 402 Johnson v. Brown, 11 W. Va., 73 - 485 Johnson V. Land, 7 Ired. (N. C.)L., 448 - ..... 800 Johnson v. Commonwealth, 14 Atl. Rep., 425 ..... 979 Johnson v. Morrow, 9 Port., 525 97, 103 Jones V. Diver, 22 Ind., 184 - - - 183,191 Jones V. Clapham, 5 Blackf., 88- ...... 355 Jones V. Cicel, 5 Eng. (Ark.), 593 - - ... 652, 797 Jones V. Piatt, 60 H^w. Pr., 277 - - - - - - 747 Jones V. Townsend, 21 Fla., 431 104, 796, 883 Jones V. Edwards, 57 Miss., 28 - - - - - 806 Jones V. Bland, 9 Atl. Rep., 275 ..... - 833 Joralemon v. Pomeroy, 22 N. J. L., 271 626 Justice V. Kirlin, 17 Ind., 538 786, 815, 816 K V. H , 20 Wis., 239 - - - - 161, 643 Kancher V. Blinn, 29 OhioSt., 52 - - - ... 198 Karney v. Parsley, 13 Iowa. 89 - - - - - 786, 878 Kay V. Fredrigal, 3 Penn., 221 790 Keanv. McLaughlin, 2 S. &R., 469 126,419,785 Kedroii ansky v. Niebaum, 70 Cal. , 216 -.----- 156 Kern v. Bridewell, 21 N. E. Rep., 664 159, 924 Kendall v. Stone, 5 N. Y., 15 - - - 204, 205, 206, 208, 211, 212, 213 Keene v. Ruflf, 1 Clarke (Iowa), 482 - - - 229, 763 Kelley v. Dillon, 5 Ind., 436 - - - - ... 272 Kelley V. Flatherly, 14 Atl. Rep., 876 - 87 Kenney v. Nash, 3 Corast., 177 - - ... 179, 616 Kelly V. Lafitte, 28 La. Ann., 435 - - 470 Kelly V. Waterbury, 87 N. Y., 179 - - - ... 644 Keiser v. Smith, 71 Ala., 481 520. 903 Kent V. Bongratz, 15 R. I., 72 - - - .540 Kent V. Bonze}', 38 Me., 435 909 Kent V. David, 3 Blackf., 301 659 Kersclaugher V. Slusser, 12Ind., 453 - - - - - - ' - 637 Kelsey v. Oil Co., 45 N. Y., 505 831 Kennedy v. Derr, 6 Port. (Ala.), 90 791 Kennedy v. GiflEord, 19 Wend., 296 333, 647, 803 Kennedy v. (Gregory, 1 Binn. (Penn.), 85 885, 895 Kennedy v. Holborn, 16 Wis., 457 - - ' - - - . - 898 Kennedy V. Press Pub. Co., 41 Hun, 422 223 Kemler v. Sass, 12 Mo., 499 ----..... 930 Kibbs V. People, 81 111., 589 114 Kingsbury v. Bradstreet, 35 Hun, 213 .62 Kinyon v. Palmer, 18 Iowa, 377 64 656 Kinney v. Hosea, 3 Harr., 77 ...... 97 103' 882 Kinney V. Nash, 3 N.Y., 117 Ho' 177' 855 Kinney V. McLaughlin, 71 Mass., 3 ... . . ' 351' 353 Kinney v. Wallace, 36 Cal., 462 * 91I Kimm et al. v. Steketee, 48 Mich., 323 231, 759, 763 AMEKiCAN CASES. 1111 King V. Wood, 1 N. &M., 184 - 273 King V. Root, 4 Wend., 113 - - - . 327,343,406,893 King V. Patterson (N. J.), 9 Atl. Rep., 705 - - 836 403 Kidder v. Parkhurst, 3 Allen, 393 - - - - - - 449 Kirkpatrick v. Eagle Lodge, 36 Kan., 384 - - 534, 535. 526, 533 Kimball v. Fernandez. 41 Wis., 309 - 535 885 Kidd V. Fleck, 47 Wis. , 443 - - . 658' 796 Kincaid v. Bradshaw, 3 Hawks' Law R. (N. C), 63 - 796^ 800 Kirtley v. Deck, 3 Hen. & M. (Va.), 388 - - - - 803 Kimniiov. Stiles, 44 Vt., 351 - .... goS Klinck V. Colby, 46 N. Y., 437 - - ... 494,501,511,539 Klewin v. Bauman, 53 Wis., 344 - .... i5(j^ 329, 846 Klumph V. Dunn, 66 Penn. St., 141 - - - - ' 99 Klein V. Lau man, 29 Mo., 259 - - ... , g20 Knapp V. Fuller, 55 Vt., 311 - . - . 259, 300 Knowles v. Peck, 43 Conn., 386 - - . 389 Knigbt V. Sharp, 24 Ark., 603 - . - - . - 616 Knight V. Foster, 39 N. H., 576 ... 790, 791 Knight V. Lee, 80 Ind., 301 . .... 918 Knott V. Burwell, 2 S. E. Rep. , 588 - - - - - 819 Knowles v. State, 3 Day Cas. (Conn.), 103 - 943 Koch V. Heideman, 16 III. App., 478 - - 156, 158 Kowalsky, Inre, 73 Cal., 120 - - .... 977.978 Krebs v. Oliver, 13 Gray, 339 103, 110, 119, 252, 481, 485^ 486 Krausv. Sentinel Co., 60 Wis., 425- - - - 622,630 Kunholts V. Becker, 3 Denio (N. Y.), 346 - - - 860 LafoUettev. McCarthy, 18 Brad., 87 - - - - 139,251 Lay ton v. Harris, 3 Harr.. 406 34 Lansing v. Carpenter, 9 Wis., 540 ... . . 37 Larrabee v. Minn. Trib. Co., 36 Minn., 141 - - - - 178, 332 Landis v. Campbell, 79 Mo., 433 - - 331, 403 Lasser V. Rouse, 13 L-ed. Eq., 143 .... - - 383 Lathrop v. Hyde, 25 Wend., 448 .... 324, 775 Lathrop v. Adams, 133 Mass., 471 - .... 373 Larkins v. Tartar, 3 Sneed, 681 - - - - - r 355 Langhead v. Bartholomew, Wright (Ohio), 90 . . . . 36O Lake V. Bradstreet Co., 23Fed. Rep., 771 - - - 403 Lamsonv. Hicks, 38 Ala., 279 - - ... . 419,641 Lanning v. Christy, 30 Ohio St., 115 - - - 470 Lawler v. Earle, 5 Allen. 22 .... 501 Law V. Scott, 5Har. & J., 438 535,816 Lam€dv. Buffington, 3 Mass., 376 - 785, 828. 875, 889 Lanterv. McEwen, 8 Blackf., 495 ... 800 Lane v. Wells, 7 Wend., 175 - - - ... -801 Lambert v.Tharis, 3 Head (Tenn.), 622 - 824 Lanius v. Druggist Pub. Co., 23 Mo. App., 13 - - - 881 Lamos v. Snell, 6 N. H., 413 - 884 Leaning v. Hewett, 45 111., 33 - 801 Lemons v. Wells, 18 Ky., 117 108 Leonard v. Allen, 65 Mass., 341 - - 268, 369, 787, 817. 879. 893 Lea V. White, 4 Sneed. Ill 435,456.561 Lee V. Robertson. 1 Stew., 138 ... . 347, 785 Lee V. Woolsey, 19 Johns., 319 .... 5:.'0, 903 Legg V. Dunleavey, 80 Mo., 558 - - - - 88 Leister v. Smith, 3 Root (Conn.). 34 - . .... 885, 89,^ Lewis V. Chapman, 16 N. Y., 369 - 64, 335, 389. 539. 770, 847, 878 l^ewis V. Few, 5 Johns., 1 - 81, 2.30, 533, 535, 537, .578, 800 Lewis V. Fenn, Anth., 75 - - - - 82 Lewis V. Hudson, 44 Ga., 568 155 Lewis V. Soule, 3 Mich., 514 - ...... 607 Lewis V. Block, 37 Miss., 425 - - ... H17 Lewis V. Niles, 1 Root (Conn.), 346 - 803 Lewisv, McDaniel, 83Md., 577 .... -, t 805 liv TABLE OF OASES CITED. Lexington Ins. Co. V. Paver, 16 Ohio, 334 - - - .7^ „:. fj. Little V. Barlow, 26 Ga., 433 - - - " lOo, 119, 265, b47 Little V. Hodges, 2 Bosw. (N. Y.), 537 - ' " °-' Little T. Young, 2 Met. (Ky.), 558 - - " f ^^°' ^i* Liffrant V. Liffrant, 53Ind.,273 on-t on\ 9j5' oTq Linden V. Graham, 1 Duer, 670 - - ^^^' ^^^' Vc,n' Im Littlejohn V. Greely. 13 Abb. Pr., 41 - - , - - 400, 561 Liles V. Gastor, 42 Ohio St.. U31 - - . - - - 4^9 Lindsey v. State, )8 Tex. A pp., 280 - - - - - - 4b9 Lindsey V. Smith, 7 Johns., 359 - - - - 021, 62b, 646 Linviliev. Early wine, 4 Blackf, 470 - - - ^°*'' „!? Littman v. Ritz, 3 Sandf.. 734 - b*l Lincoln v. Christman, 10 Leigh (Va.), 338 - - - - »-o Lingenf alter v. Louisville, etc., R. R. Co., 48. W. Rep., 185 - - 8-34 Logan V. Steele, 1 Bibb, 593 - - 107. 133, 303 Logan V. Logan, 77 Ind., 558 - - - 161, 27o, 844 Long V. Musgrove, 75 Ala., 158 - . - - 89 Long V. Peters, 47 Iowa, 239 - - 39° Long V. Brougher. 5 Watts (Penn.), 439 - - - - a03 Loomis V. Swick, 3 Wend., 205 - - - - 633, 646, 826 Lovell V. Haughton, 54 N.' Y. Sup. Ct., 60 - 824, 825 Lukehart v. Byerly, 53 Penn. St., 418 ... 101, G>5 Ludwig V. Cramer, 53 Wis., 19 J 40o, 546 Lumpkins v. Justice, 1 Ind., 557 .... 624 Luthan v. Berry, 1 Port. (Ala.), 110 - - - 800 Lucas V. Flinn, 35 Iowa, 9 - ■ - - o'w Lucas V. Nichols, 7 Jones (N. C), L., 33 - - 833 Luther V. Skeen, 8 Jones (N. C), L., 356 825 Lyde V. Clason, ICai., 581 - - - - - - 229 Lynch V. Febiger, 39La. Ann., 336- .... 99,223 Marshall v. Addison, 4 H. & M., 537 - - - - HI Massuerev. Dickens, 70 Wis., 83 - - ... 50,831 Mavnardv. Fireman's F. Ins. Co.. 47 Cal., 207 - - 57,283 Maynard V. Beardsley, 7 Wend., 560 - - 520,890,903 Mayson v. Sheppard, 13 Rich., 354 ... 120 Mallory v. Pioneer Press Co., 34 Minn., 531 140, 2.")0, 39."), 591, 8U4, 865 Musou V. Stratton, 1 N. Y. S., 511 - - - 156 Madison v. Baptist Church, 26 How. (N. Y.), 72 - - 205 Marble v. Chapin, 132 Mass., 255 . . - 231, 841 Maclean v. Scripps, 53 Mich.. 314 - - 325, 3:29, 583, 592 Mayo V. Sample, 18 Iowa, 306 - - - - 336, 401 Mapes V. Weeks, 4 Wend., 659 - - 355, 803, 883 Martin V. Van Schaick, 4 Paige, 479 - - 383 Maulsbyv. Reif snider, 14 Atl. Rep., 505- - - - 398,444 Marsh V. Ellsworth, 36 How. Pr., 332 419, 436, 444, 561, 838 Maurice v. Worden, 54 Md., 233 - 433, 473 Marks v. Baker, 38 Minn., 163 - - - - - 535, 538, 884 Malone V. Stillwell, 15 Abb. Pr., 481 - - - 641 Mayor v. Marcenor, 49 How, (N. Y.), 36 - - - - - 745 Matthews v. Huntley, 9 N. H., 147 - - 796, 833, 876 Matthews v. Davis, 4 Bibb (Ky.;, 173 ... 889 May bee v. Ftsk, 43 Barb., 336 - - .... 803 Markham v. Russell, 94 Mass.. 573 - - - 839, 844 Mahoney v. Bedford, 132 Mass., 393 8:i4, 881, 893 Marker v. Dunn, 68 Iowa, 720 - - - - - 883, 896 Maxwell v. Kennedy, 60 Wis, , 645 - - - - - 890, 892 Malloy v. Bennett, 15 Fed. Rep., 371 - - 913 Massie v. Ont. Printing Co., 11 Ont, 303 - - - - - 924 McAlexander v. Harris,, 6 Munf. (Va.), 465 - 835, 899 McAlmont v. McClellan, 14 S. & R., 359 - - . . 39, 77-2 McAnally V. Williams, 3 Sneed, 117 101- McBee v. Fulton, 47 Md., 403 - r>i7,, r>l'.), 058, 660, 796 McBride v, Ellis, 9 Mich. ,313 - - 49 AMERICAN CASES. 1^ McBrayer v. Hill, 4 Ired. (N. C.) L., 13G - - - - - - 161 McCaleb v. Smith, 23 Iowh, '34a - - - . iQO MoCarta V. Barrett, 13 Minn., 494 - . . - - 148 McCabe V. Caukivvell, IS Abb. Pr, 377 - - - 561 McCabev. Platter, 6 Blackf.. 405 - - 834 876 McCallum V, Lambie, 145 Mass. . 334 - - . '614 McCarney V. McCanD, 3 Bro. iPeiin.), 40 - •- - . 745 McCampbell v. Thornburg, 3 Head (Tenn.), 109 - - - 791 McClurg V. Ross, 5 Binii., 318 - - - - - 38 101 McClelland v. Cumberland Bank, 24 Me., 566 - - - - ' 363 McClintock v. Crick, 4 Iowa, 453 - . 804, 907 McCoombs v. Tuttle, 5 Blackf., 431 - - - - 239' 809 McCoy V. McCoj', 106 Ind., 493 - . . . . 811 McConnell V. McCoy, 7 S. &R., 228 - - - - 831 McCraokeo v. Roberts, 19 Pa. St., 390 ... 831 McCuen v. Ludlam, 3 Harr., 13 08, 99, 100, 103, 624 McCurry v. McCurry, 83 N. C, 296 - 120 McCue V. FerKUSon, 73 Pa. St.. 333 - - - 767 McDaniel v. Baca, 3 Col., 336 - ■ - 205, 213 McDermott v. Evening Jour. Co., 43 N. J. L., 488 - 335, 545 McDonald v. Lord, 37 111. App., Ill - 71 McDonald v. Barnhill, 58 Iowa, 609 745 McDowell V. Bowles. 8 Jones (N. C), L., 184 - - . - 853 McEllwee v. Blackwell. 94 N. C, 261 - ■ - 224, 225 McFaddin V. David, 78 Ind., 445 - - - 249 McGee V. Wilson, Litt. Sel. Cas., 187 - - - - - 160 McGough V. Rhodes, 13 Ark. , 635 - - - 658 McGlenery v. Keller, 3 Blackf., 488 - - - 785 McGowen v. Manifee, 17 T. B. Mon. (Ky.), 314 - 816 Mclntii-e v. Young, 6 Blackf., 496 - 773 McKee v. Willson, 87 N. C, 300 89 McKee v. Ingalls, 4 Scam., 30 - - 105, 112, 130, 325, 329, 836 McKinney v. Roberts, 68 Cal.. 193 - - - 15B' McKinley v. Rob, 30 Johns., 351 - - - 663, 798 McLaing V. Wetmore, 6 Johns.. 82 - - . - . . 186 McLaughlin v. Cowley, 127 Mass.. 316 - 434, 435, 45(5, 460, 466, 469 McLeod v. McLeod, 4 Montreal L. Rep., 343 - - - 87 McLean v. Scripps, 59 Mich., 214 - - - - 913 McMahon v. Hallock, 1 N. Y. S., 313 157 McMahonv. State, 13 Tex. App., 230 - - - - - 939 McMiUan v. Birch, 1 Binn., 178 - - - 38, 187, 196, 424 McNamara v. Shannon, 8 Bush, 557 . - - . 119 McNuttv. Young, 8 Leigh (Va.), 542 - - - - 893 McPherson v. Cheadeall, 24 Wend., 24 - - - - - - 753 McQueen v. Fulgham; 27 Tex., 463 - - - - - - 865 Martin v. StillweU, 13 Johns., 375 - - - 98, 104, 135 March v. Davison, 9 Paige, 580 190 Mebane v. Sellers, 3 Jones (N. C), L., 199 - - ... 136 Meyrose v. Adams, 13 Mo. App., 339 .... 304^ 335 MeiTitt V. Dearth, 48 Vt., 65 - - - - 348, 606 Melvin v. Wiant. 36 Ohio St.. 184 - - 249 MeiTill V. Peasley, 17N. H., 540 333,804 Metcalf V. State, 3 Humph. (Tenn.), 389 977 Metcalfe v. Williams, 3 Litt. (Ky.), 387 - - - 6-10 Medaugh V. Wright, 27 Ind.. 137 - - .... 773 Memphis R. R. Co. V. Bibb, 37 Ala.. 099 831 Meyer v. Press Pub. Co., 46 N. Y. Sup. Ct. 137 ■ - - - - 918 Miller v. Maxwell. 16 Wend., 9 . . ... 007 Miller v. Butler, 6 Cush., 71 230 . Miller V. Parish, 25 Mass., 384 155,159,617 Miller V. Johnson, 79 III., 58 .... 119,331,906.918 Miller v. Miller, 8 Johns., 74 - - . - 100, 107, 119, 253, 647, 804 Miller v. Kerr, 2 McCord (S. C), 283 773, 799 Miles V. Oldfleld, 4 Yeates, 423 ■ - 105, ii72 Ivi TABLE OF CASES CITED. Miles V. Van Horn. 17 Ind.. 245 - - - - 283,634,625,825,876 Milton V. State, 3 Humph., 389 n'ooonfioR Mix V. Woodward, 13 Conn., 262 - - - - H^. 290, 636 Mix V. McCoy, 23 Mo. App., 488 - - - - - o»* Mills V. State, 18 Neb., 575 f^° Millison v. Sutton, 1 Carter, 508 - f*j Miner v. Detroit Posli & Trib. Co., 49 Mich., 358 - - 409, .^H Millan v. Burnside, 1 Brev., 395 561 Milligan V. Thorn, 6 Wend., 412 - - - - „- " "17 Mielenz v. Quasdorf, 68 Iowa, 726 - - - 657. (60, 761 Mitchell V. Borden, 8 Wend., 570 - - - - - 798 Minesinger V. Kerr, 9Penn. St., 318 - 898 Moberlyv. Preston, 8 Mo., 463- ... - 159,355,803 Moffatt V. CaldweU, 8 Hun, 36 7 - - - 51 Moore v. Horner, 4 Sneed, 491 . - - - - - 137 Moore v. Francjs, 3 N. Y. S., 163 72, 815 Moore v. Blaine, 12 La. Ann., 7 ... 213 Moore v. Clay, 24 Ala., 335 - - - - .... 907 Moore v. Manuf. Nat. Bank, 4 N. Y. S., 378 - - 819, 8^8 Moore v. Bennett, 48 N. Y., 473 - - - - - 49, 371 Morey v. Morning Jour. Co., 1 N. Y. S., 475 - - 55, 888 Mosier v. StoU, 20 N. E. Rep., 752 - - - - 61, 290, 623, 819 Morgan V. Livingston, 2 Rich., 573 - - 87, 104, 109, 120, 136, 366, 267, 774 Montgomery v. Dooley, 3 Wis., 709 - - - 97 Mower v. Watson. 11 Vt., 536 - - - ' - 126, 424, 435, 448 Morehead v. Jones, 2 B. Mon., 210 - - - 348, 8*5 Mottv. Comstock, 7Cow., 654 .... 193,194 Mott V. Dawson, 46 Iowa, 533 - - - - - 537, 578 Monks V. Monks, 30 N. E. Rep., 744 - - 633 Moseley v. Moss, 6 Gratt., 534 - - - - - - 625 Montgomery v. Knox, 3 S. Rep., 311 - - - - 773, 845 Moyerv. Hine, 4Mich.,409 - - ... - - 793 Moyer v. Moyer, 49 Penn. St., 310 - - ... 834 Moody V. Baker, 5 Cow. (N. Y.), 351 831, 917, 920 Morris V. Baker, 4 Harr. (Del.), 520 - - - - - - 791 Morris v. Lachman, 67 Cal., 109 - - - - 883 Mulcher v. MulhoUen, Lalor, 363 - .... 125 Mulligan v. Thorn, 6 Wend., 413 - - - - - 358 Murphy v. Stout, 1 Smith, 256 347 Munster v. Lamb, 23 Amer. Law Reg., 23 - - - - 539 MuUaly v. Austin, 97 Mass., 30 - ... - - 831 Myers v. Dresden, 40 Iowa, 660 248 Nail V. Hill, Peck (Tenn.), 225 - 660 Nash V. Benedict, 25 Wend., 645 - - , - - 144 Nelson v. Bobe, 6 Blackf., 204 - - - - - - - 829 Nelson V. Musgrave, 10 Mo., 648 50 Nelson V. Borcheuius, 52 111., 236 170 Negley v. Farrow, 60 Md., 158 - - ... 71, 773 Newbit V. Statuck, 35 Mo., 315 ..... - - 126 Neebe v. Hope, 2 Atl. Rep., 568 ... . 178, 577 Newell V. Howe, 31 Minn., 235 - - - - - 194, 603 Newell V. Buttler, 38 Hun, 104 - - - - - 726 New bold v. Bradstreet, 57 Md., 38 - .... 297, 859 New York & W. Tel. Co. v. Dryburg, 35 Penn., 303 - - -363 Nestle.v. Van Slyck, 2 Hill (N. Y.). 283 - ... ei8, 826 New York Inf. Asylum v. Roosevelt, 35 Hun, 501 - - 748 Nevitt V. Ral.e, 6 Miss., 653 .... . . . 748 Niderer v. Hall, 67 Cal., 79 . -87 Nichols V. Hayes, 18 Conn.. 155 .... 142 826 Nichols V. Packard, 16 Vt., 83 - - .... - 624 Nix V. Caldwell, 81 Ky., 393 469 Niven v. Munn, 13 Johns., 48---.. ... 044 Norton v. Gordon, 16 111., 38 - - - 809i AMEEICAN CASES. Ivii Norton V. Ladd, 5 N. H., 803 - - - - 117 900 «■>« Nolan V. Ti-ober, 49 Md., 460 ■ ^^^' ^^^ 616 820 Noonan v. Orton, 33 Wis., 106 - • - . . . North V. Butler, 7 Blackf., 351 Nottv. Stoddard, 38 Vt., 25 - . . . „a„ Nye V. Otis, 8 Mass., 133 - - . . . 107 119 Oakley V. Farriagton, IJohn. Gas., 130 172 178 855 Oakes v. Barrett, 25 Mass., 81 - - - - - ' 919 Odellv. Garnett, 4 Blackf., 549 - - - 961 964 Odiorne v. Bacon, 6 Gush., 185 - - . (-5' 660 O'Gonner V. O'Gonner, 84 Ind.. 318 - - - - ' 130 O'Gonner v. Sill, 60 Mich.. 175 - 406 O'Donnell v. Hastings, 68 Iowa, 371 - . 119 O'Donaghue V. McGovern, 33 Wend., 36- 403 403 404 788 Oflfut V. Earlywine, 1 Blackf., 460 - • ' ' m Olfele V. Wright, 17 O. St.. 338 - - - . - . . - 97 Olmsted v. Miller, 1 Wend., 506 - 781 807 857 858 O'Hanlon v. Meyers, 10 Rich., 128 - ' - ' 187 Ormsby v. Douglass, 37 N. Y.. 477 - - 401, 656, 660 Ostram v. Galkins, 5 Wend., 863 - - 170, 170, 193, 194) 196] 930 Over V. Hildebrand, 93 Ind., 19 - - 49 Over V. Schiffling, 102 Ind.. 191 - - . 290 Owen V. McKean, 14 111., 459 - ... . ^(37^ 909 Paddock v. Salisbury, 2 Cow. (N. Y.), 811 - - - . 884 Page V. Merwin, 8 Atl. Rep., 675 - - 87, 156, 818 Palmer v. Goncord, 48 N. H., 211 - 537, 578 Palmer v. Anderson, 33 Ala., 78 - - - - lOl, 333, 773 Parker v. Lewis, 2 Greene. 311 119 Parker v. Meade, 33 Vt., 300 - 135, 250 Parker V. Leman, 10 Tex., 116 - 830 Parkhurst v. Ketchum, 88 Mass., 406 - - - 1,57 Patterson v. Wilkinson. 55 Me., 43 - - 159, 63-1 Patterson v. Edwards, 7 111. (3 Gilm.), 730 - 159, 624, 839 Patterson v. Morgan, 116 Mass., 850 - - - - - 893 Park V. Detroit Free Press Co., 1 L. R. A., 599 329, 230, 4li9, 471, 472, 841 Paul V. Halferty, 63 Penn. St., 46 - 217 Pallet V. Sargent, 36 N. H., 496 - 348, 8Q3 Patch V. Tribune Asso., 38 Hun, 368 - - - 619 Palmer V. Hunter, 8 Mo., 513 - - - - 642 Palmer v. Smith, 21 Minn., 419 - - 657, 797 Palmer V. Haigbt, 2 Barb., 210 - - - . - - 801 Palmer v. Chicago, etc., R. R. Co., 14 N. E. Rep., 70 834 Palmer v. Lang, 7 Daly (N. Y.), 33 - - - - 887 Payne v. W. & A. R. E. Co., 13 Lea, 507 - 63 Payson v. McCumber, 3 Allen, 69 - - - 656, 806, 808 People v. Burr, 41 How. (N. Y.), 294 - - - 140 People v. Clay, 86 lU., 147 - - - 376 People V. Gross well, 3 Johns. Gas., 3.54 - - 35,937 People V. Henderson, 1 Park. Or., 560 - - - - 133 People V. Jones, 35 N. W. Rep., 419 - - 978 People v. McKinney, 10 Mich., 54 - - - - 748 People V. Porter, 2 Parker, 14 - - - - - 944 People V. Euggles, 8 Johns., 290 - - 944. 945, 960, 961 People V. Sherman, 103 N. Y., 513 - - - - 938 People V. Thornton, 16 Pac. Rep., 344 - - 823 Pegram v. Stoltz, 79 N. G. 349 - - - - - - - 136 Petsch v. St. Paul Dis. P. Co., 41 N. W. Rep., 1034 - 63, 606, 615, 622 Perdue v. Burnett, Minor, 138 - - . 97, 99, i03, 108 Perselley v. Bacon, 20 Mo., 330 - 131, 124, 136 Pelton V. Ward, 3 Gai., 73 - - - - 124, 135, 126 Perrett v. N. O. Times, 35 La. Ann., 170 ... 395 Peoples v. Detroit Post & Trib. Co., 54 Mich., 457 - - - 397, 399 Iviii TABLE OF CASES CITED. Peoples V. Evening News, 51 Mich., 11 ------- 798 Perzel v. Taiisey, 53 N. Y. Sup. Ct., 79 61, 469, 748 Peterson v. Sentman, 37 Md., 153 - - - - - 618 Peckham V. Holman, 11 Picls., 484 035 Pelzer v. Beniah, 67 Wis., 291 - 037 Perry V. Porter, 124 Mass., 338 - - - - 806.807 Peltier v. Mict, 50 111.. 511 ... 809 Perrine v. Winter, 73 Iowa, 645 815, 820, 821 Pease v. Shippen. 80 Penn. St., 518 - . - . . - 823 Pettibonev. Simpson, 66 Barb., 492 . - . . 851, 859. 8(i0 Petrie v. Rose, 5 Watts & S. (Penn.), 534 - - - - 899, 907 Phillips V. Barber. 7 Wend., 489 - - . - - lOO. 2i)3 Phincle V. Vaughan, ISBarb., 315 - ... - - 104, 6l8 Phillipp V. Hoefer, 1 Pa. St., 62 193 Philadelphia, etc., R. R. Co. v. Quiglev, 24 How. (U. S.), 203 - 363. 404 Pike V. Van Wormer, o How. Pr., 99 - - 89, 105, 199, 597, 60S, 645 Pierson v. Steortz, 1 Morris, 136 105, 119, ao") Pittsburgh, etc., R'y Co. v. McCurdy, 8 Atl. EeD., 330 - - - 251, 621 Pierce v. Oard, 37 N. W. Rep., 677 - ",.... 399, 401 Pitts V. Pace, 7 Jones (N. C), L., 558 820 Pink V. Pink, 51 Cal., 420 - 880 Platto V. Geilfuss, 47 Wis,. 491 - - . - . 64,397 Plummer v. Johnson. 70 Wis., 131 - - - 815, 816, 839 Plummer V. Wilson, 35 N. W. Rep.,- 334 ... - 919 Poe V. Creerer, 3 Sneed, 664 . 110 Pollard V.Lyon, 91 U. S., 2>5 - - - 41, 168, 198, 204, 849, 857, 860 Porter V. Choen, eO Ind., 338 - ... - . 05". Porter v. Henderson, 11 Mich., 20 - - . . - 793 Porter v. Hughey, 2 Bibb (Ky.). 232 - ... - 853 Potter V. Thomjison, 22 Barb., 87 ... - - - 911 Pontalla v. Blane, 12 La, Ann.. 8 - - ..... 213 Pond V. Hartwell, 84 Mass., 269 - ... 280,816 Pond V. Gibson, 5 Allen (Mass.), 19. . . - . - 826 Poppenheim v. Wilkes, 1 Strobh. (S. C), 275 - - . - 802 Pope V. Welsh, 18 Ala., 631 825 Power V. Miller, 3 McCord, 230 - 124, 616 Pool V. Devers, 80 Ala., 673 347,833 Powers V, Dubois. 17 Wend., 63 ------ 83, 539, 560 Powers V. Hughs, 39 N. Y. Sup. Ct., 483 - - . - . 746 Powers V. Presgroves, 38 Miss., 237 793,824,907 Powers V. Price, 13 Wend., 500 - - 827 Prichard v. Lloyd, 3 Ind., 154 - - - - - - - lOB Prince v. Esterwood, 45 Iowa, 640 - - ... - 1 10 Prosser V. Challis, 19 N. E. Rep., 735 55 615 Proctor V. Owens, 18 Ind. , 21 .... ... 156' IbO Proctor V. Houghtailing, 37 Mich , 41 - ■---"' 161 Pratt V. Pioneer Press Co., 32 Minn., 217 - 169, 183, 911, 913, 935 Pratt V. Hull, 13 Johns., 334 . . - .... 830 Prescott V. Tousey, 50 N. Y. Sup. Ct., 13 - - - 331 880 Prime v. Eastwood, 45 Iowa, 640 - - . . . . ' 335 Press Co. V. Stewart, 119 Pa. St., 584 583 584 Prettymay v. Shockiey, 4 Harr. (Del.), 113 - . - . ' 853 Purcell V.Archer, Peck, 317' ---..... qqa Purpla V. Horton, 13 Wend., 9 . ... " eon sQ« Pugh V. Neal, 4 Jones(N. C), L.,367 '. - 838 Quigley v. McKee, 12 Or.. 22 - - . . . ijo Quin V. Ogara, 2 E. D. Smith, 388 . . . ns ino iOt 9Q« Quinn v. Scott, 23 Minn., 456 - - . ' ' io?' ««n Quimby V. Minn. Trib. Co., 38 Minn., 528 - . - '. " 52^] 993 R V. M , 31 Wis., 50 - - . . o„_ Ramey v. Thornbury, 7 B. Mon., 475 - - . " " ^i„ Rathburn V. Eiuigh, 6 Wend., 407 . . . 173 855 AMERICAN CASES. lix Railroad Co. V. Quigley, 31 How., 803 844 Eamscar v. Gerrv, 1 N. Y. S., 63.') 6S Eansone v. Christian, 49 Ga., 491 239, 660, 796 Rangier v. Hummell, S7 Penn. St , 130 308, 767, 831 Rainbow v. Benson, 71 Iowa, 301 - - - - 463, 468 Eandall ^•. Brisham, 74 U. S,.533 419 Randall t. Holsenbake, 3 Hill (S. C). 175 775. 794 Randall V. Bait. &0. R. R. Co., 109 U. S., 478 - - 830 Randellv. Butler, 7 Barb., 860 - - - - - 643 Ranimel v. Otis, 60 Mo., 365 - - - - - - 8r)9 Ranger v. Goodrich, 17 Wis.. 78 - - - - - 907 Reed V. Delorme, 3 Brev., 76 - 63 Remmington v. Congdou. 3 Pick,, 315 - - - - 61, 517, 530, 549 Redway v. Grav, 31 Vt , 093 .... - 99 Reynolds v. Tucker. 6 Ohio St. , 516 794 Reynolds V. Ross, 43 Ind., 387 119,26(3 Reitan V. Goebel, 23N. W. Rep., 391 333 Rector V. Smith, 11 Iowa, a03 - - - - - 419,459,561 Rearickv. Wilcox, 81 111., 77 .... 534,538,877,888 Reid V. McLendon, 44Ga.. 136 ... - 561 Reade V. Sweetzer et al.. 6 Abb. Pr., 9 - - ... 587,569 Republican Pub. Co. v. Miner, 20 Pac. Rep., 345 - - - 833, 845 Reeves V. Wiun, 1 S. E. Rep., 448 - - 823 Regnier v. Cabot, 7 III. (3 Giliu.), 34 - - 836, 883, 899 Eegensperger V. Kiefer, 7 Atl. Rep., 734 - - - - 845 Rea V. Harrington. 58 Vc. 181 - 883 Reifey V. Tiram, 53 Wis., 63 .... - 884 Regdenv. Wolcott, 6Gill& J. (Md.), 413 898 Rhodes v. Anderson, 18 Atl. Rep., 833 157, 920 Rhodes V. James, 7 Ala., 728 S33 Rhodes V. Nagles, 66 Cal.. 667 - - - 881 Rhinehart v. Potts, 7 Ired. L , 403 12<1 Riddellv. Thayer, 127 Mass., 487 lo7 Riggsv. Dennison, 3 Johns. Gas., 198 . - - - 71,178,183,184 Rini V. Wheeler, 7 Cow., 725 - - - 135, 408, 419, 434, 448, 449 Rlckettv. Stanley, 6 Blackf., 169 160 Ritchie v. Stenius, 41 N. W. Rep., 687 ^ih 816 Richardson V. Roberts. 33 Ga., 215 - - - ... 347,801 Rice V. Coolidge, 131 Mass., 393 ' ' a! Rice V. Simmons, 3 Harr., 417 ... - - -J* Rice V. Cottrell. 5R. I.,340 ^^®' „n„ Riley v. Norton, 65 Iowa, 808 79b Ridley V. Perry, 16 Me., 31 - - - 803 Rixey V. Bayse, 4 Leigh, 330 lf> Rigby V. Norwood, 34 Ala.. 129 - - °»} Richardson v. Barker, 7 Ind., 567 o8J Richardson V. State, 66 Md., 205 9a0 Richardson V. State, 7 Atl. Rep., 48 oqq an« Robbins v. Fletcher, 101 Mass.. US - - ^^333, 808 Robbins v. Treadway, 2 J. J. Marsh., 540 - - - - 50, 64, 581 Root V. King. 7 Cow., 613 36, 73. 81, 178, 316, 339, 533, 535, 537, 880, 889 Rosewater v. Hoffman, 38 N. W. Rep., 857 53, 84.5 Rolland v. Batohelder, 5 S. E. Rep., 695 58 Rock V. McClarnon, 95 Ind., 415 - &» Eodgers v. Kline, 56 Miss., 808 - 88, 398 Robertson V. Lea, 1 Stew., 141 - i;l Robertson V. Bennett, 1 Abb. N. C, 476 i;;' Roe V. Chitwood, 36 Ark., 210 JO'^ Ross V. Fitch, 58 Tex.. 148 - lb; Ross V. Pines, Wythe, 71 SS^' 07^ Eoby V. Murphy, 37 111. App.. 394 274, 37o Robinson V. Keyser, 23 N. H., 323 273 Robinson v. Hatch, 55 How. Pr., 55 tioo Ix TABLB OF CASES CITED. Robinson v. Drummond, 24 Ala., 174 383, 347 Eobinette v. Ruby. 13 Md., 95 - "H 395 Rosenwald v. Hammastein, 13 Daly, 877 o7a Rowand v. De Camp, 96 Penn. St., 493 - - 406 Eodebaugh v. Hollingsworth, 6 Ind., 339 - - - - 616, 617, 814 Root V. Loundes, 1 Hill (N. Y.), 518 785 Roberts v. Miller, 2 G. Greene. 133 - - - - - - 797 Roberts v. Ward, 8 Blackf.. 333 773 Roberts v. Cham'plain, 14 Wend., 120 837 Royce v. Maloney, 57 Vt., 335 - - - - - - - 799 Romaynev. Duanes, 3 Wash., 246 -------- 834 Rutherford v. Moore, 1 Cranoh, C. C, 388 - - - - • 119 RusseJl V. Anthony. 21 Kan., 450-52 - . - - - 69, 83 Russell V. Elmore, 48 N. Y., 563 - - - - • 304 Rundell v. Butler, 7 Barb., 260 - 135 Rush V. Cavanaugh, 2Penn. St., 187 - - - - - 184 Runkle v. Meyers, Yeates, 518 - - - . - - 356 Euohs V. Backer, 6 Hoisk., 395 - - . - - 419, 545 Runge V. Franklin, 10 S. W. Rep., 731 468 Ryer v. Fireman's J. Co., 11 Daly, 351 - 49 Eyokman v. Delevan, 35 Wend., 186 - - - 70, 358, 359 Salisbury v. Union & Ad. Co., 45 Hun. 120 - - 544, 545, 552, 554 Safiford v. Grau, 1 Johns., 505 - - - - - - - 126 Sanders V. RoUinson, 2 Strobh., 447 89,832 Sanderson V. Caldwell, 45 N. Y., 405 - - . . - 169,177 Sanderson v. Hubbard, 14 Vt., 462 - - . - . 616 Saunders V. Baxter, 6 Heisk., 869 321,545 Samuel V. Mail Co., 75 N. Y, 604 - ...... 3Q1 Samuel v. Bond, Litt. (Ky.) Sel. Cas., 15» 660, 793 Sandford v. Bennett, 34 N. Y., 20 - - - - - 375 Sangton v. Hagerty, 25 Wis., 151 618 Salvatelli V. Ghio, 9Mo. App., 1.55 - - 644 Sands V. Robinson, 20 Miss., 704 ----- - 773 Sands v. Joerris, 14 Wis., 663 - - - - - - - 800 Sanford v. Gaddis, 15 111., 328 - - 808, 809 Sample V. Wyann, Busb. (N. C.) L., 319 824 Samuels V. Evening Mail Ass'n, IB N. Y. Sup. Ct., 288- - - - 846 Sayre V. Jewett. 13 Wend., 135 - - 618 Sayre v. Sayre, 25 N. J. L. (I Dutch.), 235 - ^ - . - 826 Sawyer V. Hopkins, 32 Me., 268 786 Sawyer v. Eifert, 2 Nott & McC. (S. C), 511 884 Schmidt v. Withwick, 29 Minn., 156 ^ 254 Schmisseur v. Krielich, 92 111., 348 - - - - 158, 678, 80S, 914 Sohwick V. Kadman, 50 Ind., 336 162 Schenck V. Schenck, 30N. J. L., 308 268,786 Scripps V. Foster, 39 Mich., 376 537, 578 Scripps V. Reilly, 38 Mich., 10 877, 878 Schrimper v. Heilman, 24 Iowa, 505 - 772 Scott V. Martsinger, 2 Blackf., 454 772 Scott V. Peebles, 10 Miss., 546 - 786 Scott V. Harber, 18 Cal., 704 798 Scott V, McKinnish, 15 Ala., 663 - - 804 Scott V. Eentorth, Wright (Ohio), 55 836 Scovell V. Kingsley, 7 Conn., 284 - 823 Schilling v. Carson, 27 Md., 175 884 Seatonv. Cordray, Wright (O.), 101 Ij3 Secor V. Harris, i8 Barb., 425 - - - - . 170 1S9 133 189 Seeley V. Blair, Wnght(0.) 353 - - - - 81, 177! 53.5,' 061 ! 798 Seller v. Jenkins, 97 Ind., 430 - 105 Sesler v. Montgomery, 19 Pac. Rep., 686 037 341 Servatius v. Pichel, 35 Wis., 393 " - ' 404 Severance v. Hilton, 33 N. H. , 289 774 woq Selfv. Gardner, 15 Mo., 480 - 801 AMERICAN OASES. Ixi Senter v. Carr, 15 N. H., 351 - - - - - 824 Seymour v. Merrils, 1 Root (Conn.), 459 - - . ... 824 Sewell V. Catlin, 3 Wend.. 291 - 100, 191, 193, 193, 231, 268, 403, .533 Shattuck V. Allen, 4 Grav, 540 - - - - - 582 Shattuck V. McArthur, 25 Fed. Rep., 183 - - 49, 883 Shelby v. Sun P. Co., 38 Hun, 474 49 Shelton v. Nance, 7 B. Mon., 128 56 Ship V. McGraw, SMurph., 463 . - - . - 102,103,110 Sherwood v. Chase, 11 Wend., 38 - - - - - - 122 Shinlaub v. Ammerman^ 7 Ind., 347 - - - - - 126 Sheeiy v. Biggs, 2 H. & J., 363 - - ... 136 Shields V. Cunningham, 1 Blackf., 86 - - - - 159 Sheehen v. Cockley, 43 Iowa, 183 162 Sheffil V. Van Dusen, 13 Gray, 304 - 227, 231, 2S6, 530, 531. 889, 903, 903 Shurtleff V. Parker, 130 Mass.. 393 - - - - 343,357,403,533 Shurtleff v. Stevens, 51 Vt., 501 - - - - 634, 525, 536, 533, 583 Shortly v. Miller, 1 Smith, 395 - - - . . 347 Shank v. Case, 1 Carter, 170 - - - - - - 347 Shoulty V. Miller, 1 Carter, 544 - 348, 898 Shoe & Leather Bank V. Thompson, 18 Abb. Pr., 413 - - - - 361 Sheckell v. Jackson, 10 Gush., 25 - - - 395, 480, 561, 591 Shelter V. Gooding, 2 Jones, 175 ... - 419,485 Shodden v. McElwee, 86 Tenn., 146 - - 455, 458 Shultz V. Chambers, 8 Watts, 300 - - - 625 Sheridan v. Sheridan, 58 Vt., 504 - - - ... 633 Shipman v. Burrows, 1 Hall, 399 - - - - 634, 779, 823 Sharp V. Wilhite, 2 Humph., 434 - - - - . - 641 Sharpev. Stephenson, 13 Ired. (N. C.)L., 248 - - - - 803 Shroyerv. Miller, 3 W. Va., 158 - 643 Shellenbargerv. Norris, 2 Ind., 285- - - - - - 644 Shepherd V. Merrill, 13 Johns., 475 - - - 550,651,6.57 Shelton v. Simmons. 12 Ala., 466 - - - - - 773, 898 Shirley v. Keatley, 4 Coldw. (Tenn.), 29 - - - 787, 790, 791 Shook V. McChesney, 4 Yeates, 507 - - - - - - 789, 819 Sheahan v. Collins, 30 111., 335 834, 890 Shroyerv. Miller, 3 West Va., 158 834 Sheik V. Hobson, 64 Iowa, 146 - - - - - 856 Shippv. Story, 68Ga., 47- - 887 Shutev. Barrett, 35 Mass., 81 - - - - ... 918 Simmons V. Holster, 13 Minn., 349 - 51 Singer v. Bender, 64 Wis., 169 - 171, 631 Sike V. McKinfetry, 3 Abb. App., 397 - - - 304, 305, 206, 208, 312 Sibley v. Marsh, 24 Mass., 38 2S5, 792 Simonson v. Herald Co., 61 Wis., 626 - - - - 637, 640 Simpson v. Vaughan, 2 Strobh., 32 643 Singleton v. B. R. Co., 41 Mo., 465 - - - - - 831 Skinner V. Grant, 12 Vt., 456 - - - .... 355,803 Skinner v. Powers, 1 Wend.. 421 - - - - - 797, 800 Slocumb V. Kuykendall, 1 Scam. (III.), 87 - - - - - 807 Sloan V. Petrie," 15 UI., 425 348, 061 Smaley V. Stark, 9Ind.,-386 , - - - - 820 Smart V. Blanchard. 43 N. H.. 137 259,395,591 Smalley v. Anderson, 3 T. B. Mon., 56 159 Smith V. Smith, 41 N. W. Rep., 409 - - - 49,58,87,348,509,510 Smith V. Stewart, 5 Penn. St., 373 88, 102, 103 Smith V. Smith, 2 Sneed, 473 98, 104, 108 Smith V. Minor, 1 N. J. L., 16 160 Smith V, Wright, 55 Ga., 318 --..---- - 255 Smith V. Miles, 15 Vt., 245 269, 312 Smith V. GaflEord, 33 Ala., 168 ... - 280, 281, 624, 646, 821 Smith V. Youmans, 3 Hill, 85 - 321, 772 Smith V. Why man, 16 Me., 13 833,847,773 Smith V. Lovelace, 1 Duv. (Ky.). 215 - - - - - - 33d, 8^4 Smith V. Higgins, 83 Mass., 251 .... 409, 506, 526, 535 Ixii ' TABLE OF CASES CITED. Smith V. Howard, 28 Iowa, 51 - - 419, 456 Smith V. Kerr, 1 Edm. (N. Y.) Sel. Cas., 190 - - - - - ROB, 5011 Smith V. Tribune Co., 4 Biss., 477 • - - 583. 58.), 657, 6o8, .9| Smithy. Hamilton, 10 Rich. (S. C), 44 - - - - ofl Smith V. HuUister, 33 Vt.. 695- - - - - 64a Smith V. Smith. 8 Ired. (N. C.) L., 29 - - - 647 Smith V. Ashler, 53 Mass., 367 '28 Smith V. Smith", 39 Penn., 441 - ■ , - - " " l«i Smith V. BucUecker, 4 Rawle (Penn.), 285 - - - - ■ 80.^ Smith V. Shum-way, 2 Tyler (Vt.), 74 - - 89N SnowT. Witcher, 9Ired. (N. 0.)L.,346- - - 659 Snow V. Tappan, 59 Mass., 104 - - - 334 Snyder V. Andrews, 6 Barb., 43 - - - 229,790,794 Snell V. Snow, 54 Mass., '278 - - - - 308, 309, 616, 767 Snider v. Fulton, 34 Md., 128 - ... - 560 Solveson v. Peterson, 64 Wis., 198 - - - - - 50, 53, 78 Southwick V. Stevens, 10 Johns., 443 - - - 230, 930 Southern Express Co. v. Pitzner, 59 Miss., 581 .... 364 S. P. B. V. I., 23 Wis., 373 - - - - .... 824 Speiringv. Andrae, 45 Wis., 330 - .... 169,177,178 Spraits v. Poundstone, 87 Ind., 522 236 Spencer V. McMasters. 16 111., 405 347 Spaidsv. Barrett, 57 111., 289 - - 424,470 Sparrow V. Maynard. 8 Jones (N. C), L., 195 - .. ... 646 Springstein v. Field, Anth. (N. Y.), 185 - - - - 823, 89:i Spotorno v. Fourichon, 4 S. Rep., 71 - - - - - 86 Spooney v. Keeler, 51 N. Y., 527 419 Sproul V. Pillsbury, 72 Me., 20 643 Sperry v. Wilcox, 1 Met. (Mass.), 367 - - - - - - 793 Spruillv. Cooper, 16 Ala., 791 - 796,797,800 State V. Atchison et al., 3 Lea. 729 303 State V. Avery, 7 Conn., 366 937,943,971 State V. Balch, 31 Kan., 465 - - ... 406, 539 State V. Barnes, 33 Me., 530 980 State V. Bienvenu, 36 La. Ann., 378 - 403 State V. Boogher, 3 Mo. App., 443 - - - - - 938 State V. Brownlaw, 7 Humph. (Tenn.), 63 977 State V. Brown, 1 Wil. (Vt.), 619 943 State V. Brunham, 9 N. H., 34 - 937 State V. Burroughs, 3 Halst., 436 97 State V. Chandler, 3 Harr., 553 - - - 944,960,962 State V. Corbett, 12 R, I., 388 - ■ .... 981 State V. De Long, 88 Ind., 313 - - 71 State V. Dowd, 39 Kan., 413 - - .... 977,979 Statev. Dorris, 92N. C 764 - 980 State V. Edens, 95 N. C, 693 - - - - - - 937 State V. EUar, 1 Dev., 367 - - - - .... 961 State V. Fitzgerald, 30 Mo. App., 408 938 State V. Fraley, 4McCord, 317 - - 937 State V. Graham, 3 Sneed (Tenn.), 134 964 State V. Great W., etc., Co., 20 Me., 41 363 State V. Hall, -5 Harr, 493 . -110 State V. Henderson. 1 Rich. (S. C), 179 - - - - 979 State V. HoUon, 13 Lea, 483 57 State V. Jeandell, 5 Harr., 475 34 State V. Jones, 9 Ire,d., 38 - •-....... 961 State V. Kirby, 1 Murph. (Tenn.), 354 961 State V. Kountz, 13 Mo. App., 511 . . 372 Statev. Lonsdale, 48 Wis., 348 - ..... 401 40^ State V. Lyon, 88 N. C, 568 - - ' 71 State V. Mayberry, 33 Kan., 441 - - ..... 577 State V. McDahiel, 84 N. C, 803 938 State V. Mott, 45 N. J. L.. 494 - . . ... 980 State V. Pepper, 68 N. C, 359 . . . ggg AilEEICAN CASES. Isiii State V. Rice, 8 N. W. Rep., 343 155, 168 Stater. Riggs, 22 Vt.. 332 981 StatR V. Shoemaker, 8 S. E. Rep., 833 236 State V. Schmidt, 9 Atl. Rep., 774 ..... 537, 978, 980 State V. Smile V, 37 Ohio St., 30 271 State V. Spear, 13 R. I., 334 - - - 978 State V. Steele. 3 Ileisk. (Tenn.), 135 - - - . - 962, 964 State V. Syphrett, 2S. E. Rep., 624 329 State V. Taylor, S Sneed, 662 970 State V. Toivnsend, 86 N. C, 676 - - ... 979 State V. Verry, 13 Pac. Rep., 838 - - - ... 817 State V. White, 9 Ired. (N. C.)L., 418 - 979 State V. Witters, 27 La. Ann., 246 - - 979 St. Martin v. Desnoyer, 1 Minn., 156 - - - - - - 113 Stafford v. Green, SO Johns.. 505 133, 125 Stanaeld v. Boyer, 6 Harr. & J,, 248 159 Strader v. Snyder, 67 Ul., 404 - . . 161, 393, 805, 893 Stiebeling v. Lockhaus, 21 Hun, 457 ... 204 Sternan v. Marks, 58 Ala., 608 - - 301 Stanley V. Brit, M. &Y., 373 .... ... 616 Stanley v. Webb, 4 Sandf., 31 - - ... 307, 544, 545, 550 Starr v. Harrington, 1 Carter, 515 347, 659 Stackpole V. Hennan, 6 Mart. (N. C), 481 ... - 435 Stancel V. Prvor, 25 Ga., 40 - - 616 Stallings v. Newman. 36 Ala., 300 - - - - - - 644 Stern v. Lowenthal, 19 Pac. Rep., 579 .... 807, 808 Stichtd V. State, 8 S. W. Rep., 477 808, 977 Stearns v. Cox. 17 Ohio, 590 773 Steele v. Phillips, 10 Humph., 461 661 Steele v. Kemble, 2 Penn. St., 112 120 Steele V. Southwick, 9 Johns., 314 85, 51, 55, 354, 260 Steever v. Beehler, 1 Miles (Penn.), 146 907 Steinmanv. Mc Williams, 6 Penn. St., 170 799 Steinman v. Clark, 10 Abb. Pr., 132 - - - - 659 Stevens v. Handly, Wright (Ohio), 121 644 Stevens v. Hartwell, 11 Met., 543 - - 343, 355, 783, 851, 857, 859, 861 Stees V. Kemble, 37 Penn., 112 105, 353, 791 Sterne V. Katz, 38 Wis., 136 - 88 Stewart v. Swift. 76 Ga., 280 50, 53, 640 Stewart v. Minn. Trib. Co., 41 N. W. Rep., 457 - - - - 63 Stewart v. Howe, 17111., 71 - - - - 103, 113, 369, 370 Stewart v. Hall, 83 Ky., 375 - 458 Stewart v. Wilson, 23 Minn., 449 604 Stillwell V. Barter, 19 Weud., 487 - 50, 797 Sterling v. Ingenheimer, 69 Iowa, 310 .......89 Sterling v. Adams, 3 Day (Conn.), 411 - ..... 661 Stieber V. Wensill, 99Mo., 513- - - . . . . 16O Steinmetz v. Wingate, 43 Ind., 574 .... - - - 830 Stephens v. Brook, 3 Bush (Ky.), 137 - - - - 831 Sturgenegger v. Taylor, 3 Brev. (S, C), 481 853 Stanwood v. Whitmore, 63 Me., 209 881 Stone V. Barney, 7 Met., 86 785, 890 Stone V. Clark, 31 Pick., 51 123, 805, 813, 828, 829 Stone V. Cooper, 2 Den., 293 64, 177, 278, 298. 645 Stow V. Converse, 3 Conn., 325 ... 82, 797, 876 Stout V. Wood, 1 Blackf., 71 - 111 Stokes V. Arev, 8 Johns., 46 120,253 Stowell V. Beagle, 57 111., 97 - 158, 799, HIH Stockv. Chetwood, 5Kan., 141 205 Stoddard V. Trucks, 31 Ark., 726 287 StoU V. Hande, 34 Minn., 193 - 616 Story V.Early, 86 111., 461 881,883,885,894,895 Story V. Wallace. 60 111., 51 .... 426, 544, 910. 914 Stroebel v. Whitney, 31 Minn., 384 85, 155 e Ixiv TABLE OF CASES CITED. Struthers v. Peacock, 11 Phil., 287 . - - - - - 375 Strauss V. Meyer, 4811]., 385 - - - ... 468,871 Sturaes V. Pitchman, 15 N. E. Rep., 757 - - - 86, 119, 916 Stacker V. Davis, 8 Blackf., 414 - - - - - 686 SuUiugs V. Shakespeare, 9 N. W. Rep., 451 - - 65, 283, 343 Sugart V. Carter, 1 Dev. & B. L., 8 130 Sumner v. tltley, 7 Conn., 258 ...... 170, 183, 190 Suydam v. Moffat, 1 Sand., 459 - - - - 469 Sutton V. Smith, 13 Mo., 120 - - - - 794 Sullivan V. O'Learey, 146 Mass., 322 813,814 Sumnan V. Brewin, 52Ind., 140 - 658 Swan V. Tappan, 59 Mass., 104 - - - 205, 217, 395, 400, 500, 861, 871 Swan V. Rarey, 3 Blackf., 298 660 Sweeney v. Baker, 13 W. Va., 158 - 81, 406, 583, 535, 537, 539, 540, 573 Swailes v. Butcher, 3 Carter, 84 348, 78B Swartzell v. Day, 3 Kan., 244 660 Sword V. Martin, 33 III. App., 304 806 Swartz V. Thomas, 2 Wash. (Va.), 167 830 Swift V. Dickerman, 41 Cow., 294 841, 864 Symonds v. Carter, 33 N. H., 458 160, 774 Tavlor v. Church, 1 E. D. Smith, 279 - - - - 71, 75, 402, 561 Tavlor v. Kneelaud, 1 Doug., 67 97, 103, 775 Taylor V. Casey. Minor (Ala.), 258 129,610 Taylor v. Carr, 8 Up. Can., Q. B. Rep., - - - - - - - 178 Taylor v. Robinson, 39 Me., 323 790, 791 True V. Plumby, 36 Minn., 466 - .... 33a Tarr v. Rasee, 9 Mich., 353 336 Tait V. Culbertson, .57Barb., 9 38',> Taft V. Howard, 1 D. Chip. (Vt.), 375 624 Talmadge v. Baker, 33 Wis., 635 798 Teagle v. Deboy. 8 Blackf., 134 793 Templeton v. Graves, 59 Wis.. 95 - - 837, 843, 845, 846, 916 Tenneyv. Clement, ION. H., 53 - 133,644 Territory v. Whitcomb, 1 Mont. T., 859 153 Terwiliger v. Wands, 17 N. Y., 54 - - 343, 779, 783, 837, 841, 858, 664 Terry v. Fellows, 31 La. Ann., 375 - 543 Tesoav. Maddox, 11 La. Ann., 306 - 549,550 Tebbeth v. Goding, 9 Gray, 254 616 Terry v. Bright, 4 Md. , 430 - - - - - 648 Teague v. Williams, 7 Ala., 844 883 Thorn v. Moser, 1 Denio, 487 400. 495, 496 Thorn V. Blanchard, 5 Johns., 508 - 401,407,788 Thomas t. Dole, 18 N. E. Rep., 214 610 Thomas V. Ramsev, 6 Johns., 26 ..... ggs Thomas v. Dunaway, 30 111.. 373 348 Thomas v. Blasdale, 18 N. E. Rep., 214 - - - - 86, 129, 254, 608 Thomas v. Croswell, 7 Johns., 364 - - 83, 557, 581, 618, 633, 629, 630 Thomas v. Fischer, 71 111., 576 809, 906 Thompson v. White, 70 Cal., 135 313 Thompson v. Grimes, 5 Ind., 385 - ...".. 390,391 Thompson v. Powning, 15 Nev., 195 - .... 335^ 335 Thompson v. Berkly, 37 Penn. St., 363 --...-. 641 Thompson v. Bowers, 1 Dougl. (Mich,), 321 - - . . 793 Thrall v. Smiley. 9 Cal., 529 . 659 Thogmorton v. Davis, 4 Blackf., 174 ....... 773 Thompkins v. Wisener, 1 Sneed (Tenn.), 458 ..... 820 Tillmorev. Willis, 61 Ga., 433 . - 51 Tillson V. Robbins, 68 Me., 395 - - .... §3, 273 Tibbs V. Brovifn, 3 Grant's Cas., 39 ---... . 366* 833 Timberlakev. Cin. Gazette Co., 10 Ohio St., 548 .... 549*550 Titus V. Follet, 2 Hill (N. Y.), 318 642 Tillotson V. Chatham, 3 Johns., 56----... 653 920 Tilson V. Clarke, 45 Barb., 178 - - - - '656 AMERICAN OASES. IXV Tilton V. Beecher, 59 N. Y., 176 - - - - . - - 745, 747 Tierney v. Duflfy, 59 Miss., 364 748 Tiddyv. Harris, 8 S. E. Rep., 237 833 Todd V. Raugh, 10 S. & R., 18 - .... . 98, 103 Tobias v. Harland, 4 Wend., 537 304, 330, 853 Tori-ey v. Field, 10 Vt., 353 424 Tolleson v. Posey, 33 Ga., 373 773 Tollett V. Jewett, 1 Am. Law Reg., 600 791 Toye V. McMahone, 31 La. Ann., 308 86 Trimble v. Foster, 87 Mo., 49 - - 883 Trimble v. Anderson, 79 Ala., 514 .......62 Trimmer v. Hiscook, 37 Hun, 864 - . 170 Trumbull v. Gibbons, 3 City Hall Recorder, 97 337 Treat v. Browning, 4 Conn., 408 - - - - 356, 791, 838, 887, 893 Ti-entonlns: Co. V. Perrine, 3Zab., 403 ... ... 361 Tracey v. Commonwealth, 10 Ky. L. Rep., 611 - - - . 978, 979 Trussell v. Scarlett, 18 Fed. Rep., 314 40;i Tryon v. Evening News, 89 Mich., 636 - 71 TurriJl V. Delawav, 17 Wend., 436 560,581 Tuttlev. Bishop, 30 Conn., 80 625 TuU V. David, 37 Ind., 377 836 Turner v. Foxail, 3 Cranch, C. Ct., 334 891 Twombly V. Monroe, 136 Mass., 464 608 United States v. TUden, 10 Ben. (U. S. D. C), 549 746 TJpham v. Dickinson, 50 111., 97 141, 917 Updegrove v. Zimmerman, 13 Penn. St., 619 - - . . 347, 791 Updegraph v. Commonwealth, 11 S. & R., 394 - - - 944, 945, 963 Usher v. Severence, 20 Me., 9 - - - - 895, 545, 549, 550, 560, 591 Van Aiken v. Caler, 48 Barb., 58 119, 305 Van Aukenv. Westf all. 14 Johns., 333 .... 100,103,109 Van Ness v. Hamilton, 19 Johns., 367 - - - 98, 102, 552, 656, 659 Vanderlip v. Roe, 23 Penn. St., 83 - .... 163, 278, 286 Van Epps v. Jones, 50 Ga., 238 169, 647, 859 VanTassellv. Capron. lDeu.,250 - - 171,173,178,179,397,855 VanTuyl V. Riner, 3Brad., 556 - .... 211,213,936 Van Vetchinv. Hopkins, 5 Johns., 211 - - 239,308,310,619,633,767 Van Rensselaer v. Dole, 1 Johns. Cas., 279 - - ... 292 Vanderzee v. McGregor, 12 Wend., 546 - - - - 325, 405, 542, 788 Van Aernam v. McCune, 32 Hun, 816 - 364 Van Aernam v. Blusteen, 103 N. Y., 355 915 Van Wyck v. Aspen wall, 12 N. Y., 190 .... 389,403,409 Van Wycke v. Guthrie, 4 Duer, 368 403, 409 Van Slyke v. Carpenter, 7 Wis., 183 635 Van Benscotten v. Yaple, 13 How. Pr. , 97 660 Van Alen v. Bliven, 4 Denio (N. Y.), 455 818 Vaughan v. Havens, 8 Johns., 109 - ... 133, 126, 631, 661 Verner v. Verner, 64 Miss., 321 458, 459 Vickers V. Stoneman, 41 N. W. Rep., 495 - - - 85,330,350,633 Vinas V. Mutuallns. Co., 33La. Ann., 1365 470 Viele V. Gray, 10 Abb. Pr., 1 - - 535,647 Vila V. Weston, 33 Conn., 42 - 748 Vifquain v. Finch, 15Neb., 305 811,813 Vick V. Whitfield, 2 Ohio, 322 834 Wadsworth v. Treat, 43 Mo., 163 864 Wagaman v. Byers, 17 Md., 183 64, 290 Waener v. Holboumner, 7 Gill (Md.), 396 335, 898 WagstafE v. Ashton, 1 Harr. (Del.), 503 - - - - - 790, 791 Wakefield v. Smith wick, 4 Jones (N. C), L,, 337 828 WakelY v. Bostwick. 49 Mich., 374 - ... 204, 305, 310, 313 Walker V. Meitze, 2 Rich. (S. C), 570 781 Walker v. Flynn, 130 Mass., 151 907 Ixvi TABLE OF CASES CITED. Walker v. Winn, 8 Mass., 348 - - 38, 50 Walkerv. Hawley, 56Conn., 599 - .°''°^ Walker v. Tribune Co., 29 Fed. Rep., 837 - - - - 61. 64, 633 Wall V. Haskins, 5 Iredell, 177 - - - 11" Wallace v. Bennett, 1 Abb. K Cas., 478 - 64 Wallace V. Bazet, 34 La. Ann., 131 ^***' '^2n Wallis V. N. O. Times, 29 La. Ann., 66 - 470 Wallisv. Walker, lis. W. Rep., 123 54,606,607 Wallis V. Mease, 3 Binney, 546 - - 117 Walrath v. Nellis, 17 How. Pr., 72 - 124, 616 Walton V. Singleton, 7 S. & R., 449 38,155,161 Watcher V. Quenzer, 29 N.Y., 547 296,797 Watson V. Hampton, 2 Bibb, 219 126 Watson V. Churchill, 5 Day (Conn.), 356 898 Watson V. Trask, 6 Ohio. 581 272 Watson V. Nicholas, 6 Humph., 174 271,273 Watson V. Morse, 56 Mass., 133 395, 773, 774, 888 Waters v. Smoot, 11 Ired. (N. C.) L., 315 804 Waters V. Jones, 3 Port., 443 - - - - - - - - 133,824 Watts V. Greenlee, 3 Dev. L., 115 273, 616 Watters v. Gilbert. 2 Gush., 27 - 798 Ward T. Clark, 3 Johns., 10 - - - 123 Warnoc V. Circle, 39 Grat., 197 41,168,198,849 Warner v. Lockerby. 31 Minn., 431 875, 886, 904, 907 Warner v. Paine, 2 Sandf., 195 437, 444, 470 Washburn v. Cook, 3 Denio, 110 389, 393, 401, 405 Waugh V. Waugh, 47 Ind., 580 156 Wartensleben v. Haithcock, 1 So. Rep., 38 ----- - 833 Warmouth v. Cramer, 3 Wend., 894 ....... 637 Wanderly v. Noakes, 3 Blackf., 589 800 Way V. E. R. Co., 35 Iowa, 585 - - - - - - - - 831 Warev. Clowney, 24 Ala.,707 865 Ware v. Cartledge. 24 Ala., 623 647 Wa'zelka v. Hittrick, 93 N. C, 10 884 Weld V. Foster, 11 Barb., 303 82 West V. Hanrahan, 38 Minn., 385 88 Weirbach v. Trone, 3 Watts & S., 408 89 Weirv. Hoss, 6Ala., 681 337,634.640 Welch V. Eakle, 7 J. J. Marsh., 434 374 Weaver V.Hendricks, 30 Mo., 573 326 Weed V. Bibbins, 32 Barb., 315 326, 625 Weiman V. Mabie, 45 Mich., 484 -• 406,481,502 Wetherbeev. Marsh, 20 N. H., 561 884,896 West V. Walker, 3 Swan (Tenn.), 33 - 898 White V. Carroll, 43 N. Y., 161 419, 449, 456 White V. Nichols, 3 How. (U. 8.), 366 - - 35, 37, 391, 394, 419, 495, 539 White V. Delevan, 17 Wend., 49 70,359 White V. Sayward, 33 Me., 336 308, 767 Whitney v. Janes ville, 5 Bias., 330 -------- 43 Wheaton v. Beecher, 33 N. W. Rep., 503 . - . . 81, 533, 535 Whittemore v. Weiss, 33 Mich., 348 - ... - 335, 657, 797, 887 Whitaker v. Carter, 4 Ired. L., 461 - - - - - - - 343, 802 Wheeler v. Shields, 3 Scam. (III.), 348 351, 353 Wheeler v. Robb, 1 Blackf., 330 886 Whitney v. Hitchcock, 4 Denio, 461 ....... 365 Whitney V. Allen, 62 111,473 39-1 Whittam v. Yoang, 1 Blackf., 399 - 644 Whitsel V. Lennen, 13 Ind., 535 .-..._.. 644 Whiting V. Smith, 13 Pick., 364 - .... . 804, 836, 918 Widrig V. Oyer, 13 Johns., 134 38, 102 104 Williams v. Godkin, 5 Daly, 499 ...... -51 Williams V. Cairns, 4 Humph., 9 ..-..-..78 Williams V. Holdridge, 33 Barb., 396 - - . . . . -199 Williams v. Cawley, 18 Ala., 308 392, 883 AMERICAN CASES. ixVU Williams V. Miner, 18 Conn., 464 - - - - - 306,772 Williams v. Gordon, 11 Bush (Ky.), 693 - 823 Williams v. Spears. 11 Ala., 138 647 Williams v. Com., 91 Penn., 493 745, 748 Williams v. Hill, 19 Wend., 305 781, 857, 858 Williams v. Harrison, 3 Mo., 411 - - - . - - - - 785 Williams v. Greenwade, 3 Dana (Ky.), 433 - - - 786, 885, 894, 895 Williams v. Haig, 3 Rich. (S. C), 363 884 Wing V. Wing, 66 Me., 63 89 Winter v. Sumvault. 3 Hav. & J., 38 - - - - - - 100 Wilson V. Tatum, 8 Jones, 300 113 Wilson V. Robbing, Wright (O.), 40 - - - - .> - 159 Wilson V. Cattman, 66 Md., 190 - - - - - - - 196 Wilson V. Dubois, 35 Minn., 471 . . - . . . 319, 233 Wilson V. McCrory, 86 Ind., 170 353 Wilson V. Goit, 17 N. Y., 445 368,783,841,858,933 Wilson V. Sullivan, 7 S. E. Rep., 374 - - - - 469 Wilson V. Noonan, 35 Wis., 331 535, 846 Wilson V. Chicago Tribune, Merrill's Newspaper Libel, 190 - - 550, 551 Wilson V. Fitch, 41 Cal., 363 - - - 561 Wilson V. Beigler, 4 Iowa, 437 643 Wilson V. Watrous, 5 Yerg. (Tenn.), 311 .... 798, 804 Wilson V. Cloud, 3 Spears (S. C), 1 832 Wilson V. Apple, 3 Ohio, 270 - 898 Wilcox V. Webb. 1 Blackf., 368 - 648 Wilkin V. Thorp, 55 Iowa, 609 351 Wiley V. Campbell, 5 Mon. (Ky.), 396 253 Wilber v. Ostrom, 1 Abb. Pr. (N. Y.), N. S., 375 827 Witcher v. Richmond, 8 Humph. (Tenn.), 473 .... 661, 819 Winter v. Donovan, 8 Gill (Md.), 370 786 Wilbornv. Odell, 29 111., 456 805,809 Winchelv. Strong, 17 111., 597 885 Willover V. Hill, 72N. Y, 36 887 Wiseman V. State, 14 Tex. App., 74 - 980 Woodling V. Knickerbocker, 31 Minn., 268 - - 56, 373, 373 Worthington v. Haughton, 100 Mass., 481 - - - . - 56 Woods V. Wiman, 47 Hun, 363 68 Wood V. Clark, 2 Johns., 10 123 Wood V. Southwick, 97 Mass., 354 134, 125, 127, 255 Wood V. Gilchrist, 1 Code Rep., 117 - - - - - - 608 Wood V. Helbish, 23 Mo. App., 389 846 Woolcot V. Goodrich, 5 Cow., 714 149 Woniao V. Circle, 29 Grat, 192 150 Woodbury V. Thompson, 3 N. H., 194 190,861 Wonson v. Say wood, 31 Mass., 403 ...--.-- 265 Wolbrecht v. Baumgartner, 26 111., 291 644, 674 Wolf V. Scofleld, 38 Ind., 175 745 Woldrop V. Thatcher, 17 Penn. St., 340 '794 Woodbeck v. Keller, 6 Cow., 118 796, 800 Woodruff V. Richardson, 30 Conn., 338 801 Wolcott V. Hall, 6 Mass., 514 - - , 836 Worcester v. Proprietors Canal Bridge Co., 16 Pick., 541 . . - 911 Wrigley v. Snvder, 45 Ind., 541 - - - 643 Wright V. Paige, 36 Barb., 438 97,308,823 Wright V. Lindsay, 20 Ala., 488 661 Wright V. Schroeder, 3 Curt.. 548 ..-..-- 823 Wyant v. Smith, 5 Blackf., 393 101 Wyatt V. Buell, 47 Cal., 634 419, 446 Yeates et ux. v. Reed et ux., 4 Blackf., 468 - - - - 371, 791, 889 Young V. Kuhn, 9 S. W. Rep., 860 63, 86, 831, 833 Young V. Miller, 2 Hill, 31 85, 108 Young V. Clegg, 93 Ind., 371 237 Young V. GUbert, 93 ni., 595 293 Ixviii TABLE OF CASES CITED. Young V. Cook, 10 N. E. Rep., 719 606, 608 Young V. De Mott, 1 Barb. (N. Y.), 30 - - - - - - 746 Young V. Bennett, 5 111. (4 Scam.), 43 835, 893 Y6ung V. Sliraons, Wright (Ohio), 124 885, 894, 895 York V. Pease, 68 Mass., 282 - 333, 338, 409, 445, 446, 526, 529, 530, 773 York V. Johnson, 116 Mass., 482 496 Zelif V. Jennings, 64 Tex., 458 85, 163, 265 Zierv. Hoflin, 33Minn., 60 65,230 Zimmerman v. McMakin, 23 S. C, 372 809 II. ENGLISH CASES. Adams v. Coleridge, 1 Times L. R., 84 - - - 412, 482, 528, 776, 843 Adams V. Kelly, Ry. & Moo., 157 - - - - - 244,760,935 Aish V. Gerish, 1 Roll. Abr., 81 363 Alexander v. North Eastern R'y Co., 6 B. & S., 340; 34 L. J., Q. B., 152; 11 Jur. (N. S.), 619; 13 W. R., 651 ... 654,664 Alfred v. Farlow, 8 Q. B., 854; 15 L. J., Q. B., 358; 10 Jur., 714 106, 148, 256 Allen V. Eaton, 1 Roll. Abr., 54 191 AUeston v. Moor, Hetl. 167, ... - - - - 180, 185 Allhousen v. Labouchere (C. A.), 3 Q. B. D., 654; 47 L. J., Ch., 819; 48L. J., Q. B.,34; 27 W. R., 13 744 Allsop and wife v. AUsop, 5 H. & N., 534; 29 L. J., Ex., 315; 6 Jur. (N. 8.), 433; 8 W. R., 499; 36 L. T. (O. S.), 290 135, 165, 784, 863, 874 Amann v. Damm, 8 C. B. (N. S.), 597; 29 L. J., C. P., 313; 7 Jur. (N. 8.), 47; 8 W. R., 470 - - - 334, 346, 418, 503, 518 Anderson v. Hamilton, 2 Brod. & B., 156, n. - 761 Andrews V. Chapman, 3 C. &K., 286 553 Angle V. Alexander, 7 Bing., 119; 1 Tyrw., 9; 1 C. & J., 143; 4 M. & P., 870 173, 174 Annison v. Blofield, Carter, 314 - - - - 185, 379, 285, 399 Anon. (Exch.), 1 Roll. Abr.,. 55 379,299 Anon., Pasch., 11 Jac. I; 1 Roll. Abr., 746 303 Anon., 1 Roll. Abr., 83 - - - 638 Anon., 3 Leon., 313; 1 Roll. Abr., 65 143,252 Anon., Holt, 652 ..... 367 Anon., Cro. Eliz., 563 ... ... 253^ 365 Anon., 11 Mod., 99-- - 637 Archbold v. Sweet, 1 Moo. & Rob., 162; 5 C. & P., 319 - - - - 73 Armitage v. Dunster, 4 Dougl., 391 759 Arne v. Johnson, 10 Mod., Ill - .... 173^ 195^ 334 Arvarillo v. Rogers, Bull. N. P.,5- 810 Ashley v. Harrison, Peake, 194, 356; 1 Esp., 48 - 781, 853, 869, 929, 931 Ashmore v. Borthwick, 49 J. P., 792; 3 Tin[ies L. R., 113, 209 5S4, 559 Astley (Sir John) v. Younge, 3 Burr., 807; 3 Ld. Ken., 536 - - 465, 470 Aston V. Blagrave, 1 Str., 617; 8 Mod., 270; Fort., 206; 2 Lord Raym., . , ?^^^ - . - - - ... 38 180, 184 Atkms V. Pernn, 3 F. & F., 179 - . . . - 216 924 Austin(Sir J.) V. Culpepper, 3 Show., 313; Skin., 123 - - - 58,78 Axmann V. Lund L. R., 18 Eq., 330 ; 43 L, J., Ch., 655 ; 22 W. R., 789 326 Ayre v. Craven, 4 Nev. & M., 320; 2 A. & E., 2 ' - - 174, 191, 754, 855 Baal V. Baggerly, Cro. Car., 326 143 353 Baboneau V. Farrell, 15 C. B., 360; 34 L. J., C. P., 9; 3 C. L. R., 43; 1 ' Jur. (N 8.), 114 - - - 197,285,841 Bagnall v. Underwood, 11 Price, 631 - .... 75:^ Baker v. Morlue vel Morphew, Sid., 337; 3 Keble, 202 - - 183, 184, 185 Baker V. Pierce, 2 Ld. Raym., 959; Holt, 654; 6 Mod., 23; 2 Salk., ^^^ - - - 95, 120, 253 ENGLISH CASES. lx\x B:iker v. Piper, 2 Times L. R., 733 216 Baldwin V. Elphinston, 2 W. Bl., 1037 ... - 332 239 763 Baldwin V. Flower, 3 Mod., 130 ... . ' ' 368 Banister v. Banister. 4 Rep., 17 .... 214 Bank v. Henty, 7 App. Cas., 741 - - 390 Bank of British N. A. v. Strong, 1 App. Cas., 307; 34 L. T., 627 - 460, 514 Baptist Hicks' Case, Hob., 215 . . 59 Barham'sCase, 4Rep., 20; Yelv., 31 - . . - . 134,350,628 Barley v. Walford, 9 Q. B., 197; 15 L. J., Q. B., 369; 10 Jur., 917 - 217 Barmund's Case, Cro. Jac, 473 - - 166, 784, 863, 874 Barnabas \-. Traunter, 1 Vin. Abr., 396 - . ,. gg'? Barnard v. Salter, W. N. 1882. p. 140 - . . - 75 Barnes v. Holloway, 8 T. R., 150 - - - - - - 195, 759, 810 Barnes v. Prudlin, or Bruddel, 1 Sid. , 396 ; 1 Ventr. , 4 ; 1 Lev. , 361 : 2 Keb., 451 - - • . 863, 871 Barnet v. Wells, 12 Mod.. 420 - 203 Baruett v. Allen, 3 H. & N., 376; 27 L. J., Ex., 413; 1 F. & F., 125 -• 106, 243. 279, 769, 854 Barney v. United Telephone Co., 28 Ch. D., 394; 33 W. R., 576; 52 L. T.; 573- - - - - 326 Barrett v. Long, 3 H. L. C, 395; 7 Ir. L. R., 430; 8 Ir. L. R., 331 331. 334. 336 777 Barry V. M'Gratb, It. R., 3C. L., 576 - - . . . . ' 908 Barwell v. Adkins. 1 M. & Gr., 807; 2 Scott, N. R., 11 - 259, 334, 336 Barwis v. Keppel (1766), 2 Wils., 314 . ... 474 Beamond v. Hastings. Cro. Jac, 340 180 Beatson v. Skene, 5 H. & N., 838; 39 L. J., Ex., 430; 6 Jur. (N. S.), 780; 2 L. T., 378- - - - - 411,494,497,833 Beauchamps (Lord) v. Sir R. Croft, Dyer, 385 - - . - 460 Beavor v. Hides, 2 Wilson, 300 130, 253 Behrens v. Allen, 3 F. & F., 135; 8 Jur. (N. S.), 118 - - - - 655 Bell V. Byrne, 13 East, 554 - - - - . - - - - HQ Bell V. Midland Railway Co.. 10 C. B. (N. S.), 287; 30 L. J., P. C, 273: 9 W. R., 613; 4 L. T., 393 - - - - - 787, 843, 882 Bell V. Parke, 10 Ii-. C. L. R., 279; 11 Ir. C. L. R., 413 - 411, 480, 527 Bell V. Stone, IB. & P., 331 58,80 Bell V. Stocker, 10 Q. B. D., 139: 52 L. J., Q. B., 49; 47 L. T., 624 367 Bellamy v. Burch. 16 M. & W., .590 - ■ - - - 176 Belt v.'Lawes (C. A.), 12 Q. B. D., 356; 53 L. J., Q. B., 249; 32 W. R. 607 - - - - - 735. 848 Bennett v. Bennett, 6 C. & P., 588 - - - - 356, 894 Bennett v. Deacon (1846), 3 C. B., 638 ; 15 L. J., O. P., 389 - 413, 483, 487 Benson v. Flower, Sir W. Jones, 315 - - - - 371 Berryman v. Wise, 4 T. R., 366 - - - - 751, 753, 755 Biggs V. Great Eastern Railway Co., 16 W. R., 908; 17 L. T., 483 - 664 Bignell v. Buzzard, 3 H. & N.," 317; 37 L. J., Ex., 355 - - 75, 220 Bill V. Neal. 1 Lev., 53 - - 180. 184. Bishop V. Latimer, 4 L. T., 775 ... 73, 185, 189, 558, 662 Bittridge'sCase, 4Rep.,19 - .... 367,376,395.306 Black V. Hunt, 3 L. R., Ir.. 10 - - - - - 106, 854 Blackburn v. Blackburn, 4 Bing., 395; 1 M. & P., 33, 63; 8 C. & P., 146 ........ . ■ , 334 Blackham v. Pugh, 2 C. B., 611 ; 15 L. J., C. P., 390 - 217, 514, 528 Blackman v. Bryant, 27 L. T., 491 - - - 106, 279 Blagg v. Sturt, 10 Q. B., 899, 906; 16 L. J., Q. B., 39; 11 Jur., 101; 8 L. T. (O. S.), 135 - - 72, 837. 416, 508, 543, 777, 883, 933 Blake v. Albion Assurance Society, 4 C. P. D., 94; 48 L. J., C. P., 169; 37 W. R., 321; 40L. T., 311 ... - - 337 Blake V. Pilfold, 1 M.& Rob., 198 541,789 Blake v. Stevens, 4 F. & F., 333; 11 L. T., 543 73, 337, 654, 663, 883, 923 Bliss V. Stafford, Owen, 37; Moore, 188; Jenk., 147 - - - 306,214 Blumley v. Rose, 1 Roll. Abr., 73 273 Bold V. Bacon, Cro. Eliz., 346 209 Bolton v. O'Brien, 16 L. R., Ir„ 97, 483 306, 381 IXX TABLE OF CASES CITED. Bolton (Sir William) v. Dean, cited in Austin v. Culpepper, 2 Show., 313; Skinner, 133 „- „" _" „80 Bond V. Douglass, 7 C. & P., 626 - - - - 245, 331, 757, 935 Boosey v. Wood, 3 H. & C, 484; 34- L. J., Ex., 65; 11 Jur. (N. S.), 181; 13 W. R., 317; 11 L. T., 639 740 Booth V. Briscoe (C. A.), 2 Q. B. D., 496; 25 W. E., 838 - 73, 374, 591 Boston V. Tatam, Cro. Jac, 633 110 Botterill v. Whytehead, 41 L. T., 588 - 183, 192, 487, 524, 664 Boulton V. Chapman, Sir W. Jones, 431 ; March 20, pi. 45 - - 434, 445 Bourke v. Warren, 3 C. & P., 307 - - - - 359, 363, 758 Bourn's (Sir John) Case, cited Cro. Eliz., 497 - - - - 263 Boxev. Barnaby, 1 Roll. Abr., 55; Hob., 117 185 Bovdell V. Jones, 4 M. & W., 446 ; 7 Dowl., 310 ; 1 Horn & H., 408 - 59, 69, 386, 300, 558 Boyle V. Wiseman, 10 Ex., 647: 34 L. J., Ex., 160 ; 34 L. T. (O. S.), 374 761 Bracebridge v. Watson, Lilly Bntr., 61 186, 783, 863 Brady v. Youlden, Kerferd & Box's Dig. Vict. Cas., 709 - 174, 197, 872 Brand and wife v. Roberts and wife, 4 Burr., 3418 - - 81, 165, 873 Brandrickv. Johnson, 1 Vict. L. R., C. L., 306 - - - - 173,192 Bray V. Ham, 1 Brownl. & Golds., 4 197 Bray (Sir Edward) v. Andrews, Moore, 63 - - - - 31, 96 Braynev. Cooper, 5 M. &W., 249 135,174,855 Bree v. Marescaux (C. A.), 7 Q. B. D., 434; L. J., Q. B., 676; 29 W. R., 858 - 934 Brembridge v. Latimer, 13 W. R., 878; 10 L. T., 816 - - - 629, 654 Brenon v. Ridgway, 3 Times L. R., 593 - 570 Brent v. Spratt, Times, Feb. 3, 1882 ... . tQl, 288 Brett V. Watson, 30 W. R., 723 - - - - - 237, 325 Brine v. Bazelgette, 3 Ex., 693; 18 L. J., Ex., 348 ... 77I, 878 Brinsmead v. Harrison, L. R., 7 C. P., 547; 41 L. J., C. P., 190; 30 W. R.. 784- - - - 900 Broke's Case, Moore, 406 186 Bromage v. Prosser, 6 D. & E., 296; 4 B. & C, 247; 1 C. & P., 475 • 39, 333, 327, 410, 497, 532, 772 Bromfield v. Snoke, 13 Mod., 307 197 Brook V. Evans, 29 L. J., Ch., 616; 6 Jur. (N. S.), 1035; 8 W. R., 688 - 548 Brook V. Montague (Sir Henry), Cro. Jac, 90 - - 428, 431, 434, 435 Brook V. Eawl, 4 Ex., 521; 19 L. J., Ex., 114 .... 2O6, 215 Brook V. Wise, Cro. Eliz., 878 300 Brooke V. Avrillon, 42L. J., C. P., 126 347 Brooke V. Clark, Cro. Eliz., 328; 1 Vin. Abr., 464 184 Brookes v. Tichborne, 5 Ex., 939; 20 L., J., Ex., 69; 14 Jur., 1133 58, 759 Brooks V. Blanshard, 1 Cr. &M., 779; 3 Tyr., 844 - - - 487,531 Broome v. Gosden, 1 C. B., 738 259, 619, 627 Brown v. Brine, 1 Ex. D., 5; 45 L. J., Ex., 139; 24 W. E., 177; 33 L. T., 703 '....''.: 60 Brown V. Croome, 3 Stark., 397 343,509,771 Brown v. Dyer, 11 Mod., 99 ..79 Brown v. Lane or Low, Cro. Jac, 433; 1 Roll. Abr., 79 - - - 263 Brown V. Smith, 13 C. B., 596; ja3 L. J., C. P., 151; 1 C. L. R., 4; 17 Jur 807 - - - 194^ 733, 839, 861 Brown v. Wootton, Cro. Jac, 73; Yelv., 67; Moo., 762 . . 900 Browne v. Murray, Ey. & Moo., 254 - 794 Bruce v. Nicolopulo, 11 Ex., 133; 34 L. J., Ex., 334 - - - - 761 Brunkard v. Segar, Cro. Jac, 437; Hutt., 13; 1 Vin. Abr., 427 . 106 854 Brunswick (Duke of) v. Harmer, 14 Q. B., 185; 19 L. J.. O. B 20- 14 ' Jur., 110; 3 C. &K 10 ----'- -' 289, 'sie,' 519, 769 Brunswick (Duke of) v. Pepper, 3 C. & K., 683 - . . - 900 Bruton v. Downes, 1 F. & F., 668 471 Bryce v. Eusden, 2 Times L. R., 435 57Q 931 Buckley v. Wood, 4 Rep., 14a; Cro. Eliz., 230 . . 431 460 46l' 470 Burcher v. Orchard et ux.. Style, 349; 1 EoU. Abr., 781 - - ' 369* 383 Burdett v. Abbot, 5 Dow. H. L., 165; 14 East, 1 - - 3'9 345' 757 Surges V. Braoher, 8 Mod., 238; 3 Ld. Eaym., 1366; 1 Stra., 594 ' - ' 303 ENGLISH CASES. IxXl Burnet V. Wells, 13 Mod., 430 145 Burnett V. Tak, 45 L. T., 743; W. N. 1883, 8 308,336 Burton V. Plummer, 3 A. & E., 343 - - ... 7(jo Burton v; Tobins, Cro. Jac, 143 - - 88, 180 Button V. Hey ward et ux., 8 Mod., 34 - ... 96, 303 Byrchley's Case, 4 Rep., 16 ..... .185 Caesar v. Curseny, Cro. Eliz., 305 - . . - 173, 180 Calder v. Halket, 3 Moo. P. C. C, 38 436 Campbell v. Spottiswoode, 3 B. & S., 769; 33 L. J., Q. B., 185; 37 J. P., 501 ; 9 Jur. (N. S.), 1069; 11 \V. R., 569 - 58, 74, 566, 573, 575, 588 Cane v. Golding, Style, 169, 176 - - . - . 806, 214, 639 Cannell V. Curtis, 3 Bing. N. C, 238; 3 Scott, 379 - - - 753 Capel V. Powell, 17 C. B. (N. S.), 743; 34 L. J., C. P., 168 - - 367 Capel V. Jones, 4C. B., 359; llJur., 396 - - - - 284 Capital .& C. Bank v. Henty, 28 W. R., 490 - - 65, 281, 383, 528, 769 Carmichael v. Waterford & Limerick R'y Co., 13 Ir. L. R., 313 - 333, 878 Carn v. Osgood, 1 Lev., 380 .... . . jgO Carpenter v. Tarrant, Cas. Temp. Hardwicke, 339 - . - 110 Oarr v. Duckett, 5 H. & N.. 783: 39 L. J., Ex., 468 - • 209, 665 Carr v. Jones, 3 Smith, 491 ; S. C. sub nom. Stiles v. Nokes, 7 East, 493 . ' - ... - 59 557 Carr (Sir John) v. Hood, 1 Gamp., 355, n . . 566, SOSJ 588 Carroll v. Bird, 3 Esp., 301 - - . . 491 Carroll v. Falkiner. Kerferd & Box, Dig. of Vict. Cases, 316 - 931 Carslake v. Mapledoram, 3 T. R., 473 -• 198 Casey v. Arnott, C. P. D., 24; 46 L. J., C. P., 3; 25 W. R., 46; 35 L. T., 424 - - - ... 223 Castleman v. Hobbs, Cro. Eliz., 428 - - .619 Caulfield v. Whitworth, 16 AV. R., 936; 18 L. T., 537 - 325, 347, 771 Cans V. Roberts, 1 Keb.,418; S. C. sub nom. Roberts v. Herbert, Sid., 97 ... 165, 873 Cawdrv V. Highley, al. Tythay, al. Tetley, Cro. Car., 370; Godb., 441 184, 186 Ceelv V. Hoskins, Cro. Car., 509 - .... 103, 106, 135, 356 Chadwick v. Herapath, 3 C. B., 885; 16 L. J., C. P., 104; 4 D. & L., 653 ..... 908 Chalmers v. Payne, 2 C, M. & R., 156; 1 Gale, 69; 5 Tyr., 766 293, 551, 553 Chalmers V. Shackell, 6 C. & P., 475 348,663,797 Chamberlain v. Boyd (C. A.), 11 Q. B. D., 407; 53 L. J., Q. B., 377; 31 W. R., 573; 48 L. T., 338; 47 J. P., 373 - 784,854,863,930 Chambers v. White, 2 Jones, 383 - 370 Chapman, Ex parte, 4 A. &E., 773 - - 970 Chapman V. Lamphire, 3 Mod., 155- ..... 193, 195 Charlter v. Barrett, Peake, 33 335 Charlton v. Watton, 6 C. & P., S85 547 Charnel's Case, Cro. Eliz., 379 113 Charter v. Peter, Cro. Eliz., 603 - 356 Cheese v. Scales, 10 M. & W.. 488; 13 L. J., Ex., 13; 6 Jur., 958 58, 73, 343 Child V. Affleck and wife, 4 M. & R., 338 ; 9 B. & C, 403 - - 497 Christie v. Christie, L. R., 8 Ch., 499; 42 L. J., Ch., 544; 21 W. R., 493; 28 L. T., 607 ■ 460 Chubb V. Flannigan, 6 0. & P., 431 243 Chubb V. Westley, 6 O. & P., 436 333, 334, 336, 778 Churchill (Lord) v. Hunt, 3 B. & Aid., 685; 1 Chit., 480 - - 59, 897 Clarges (Sir Thomas) v. Rowe, 3 Lev., 30 - . - - . 541 Clark V. Freeman, 11 Beav., 113; 17 L. J., Ch., 142; 13 Jur., 149 73, 76, 195 Clark V. Molyneux, 3 Q. B. D., 337; 47 L. J., Q. B.. 330; 26 W. R., 104: 36 L. T., 466; 37 L. T., 694; 14 Cox, 0. G, 10; 41 J. P., 293; 43 J. P., 377 ... 207, 316, 333, 334, 392, 484, 489, 527, 770 Clark V. Newsam, 1 Ex., 131 333 Clarke v. Morgan, 38 L. T., 354 - - - - ■ 934 I. & W., 168: 16 L. J.. Ex., 77; 4 D. & L., 341 664 O'Brien v. Clement, 15 M. & W., 435; 15 L. J.. Ex., 285; 3 D. & L, 676 - • 37, 59, 60, 263, 279, 649, 908 Oddv V. Lord George Paulet, 4 F. & F., 1009 - 195, 339, 344, 513, 777 Odgerv. Mortimer, 28 L. T., 473 ■ - ... 584,585 O'Donoghuev. Hussey, Ir. R., 5C. L., 124 519,533 Ogdenv. Turner, Holt, 40; 6 Mod., 104; 3 Salk., 696 - 95,96,165,873 Oliver V. Lord Wm. Bentinck, 3 Taunt., 456 475, 5oo Onslow V. Home, 3 W. Bl., 750; 3 Wils., 177 38, 177, 180, 182, 847, 855 Orpwood V. Barkes, or Parkes, 4 Bing., 361 ; 12 Moore, 493 - - - 195 Orford et ux. v. Cross. 4 Rep.. 18 ... - 31, I60, 873 Ixxxii TABLE OF CASES CITED. Padmore v. Lawrence, 11 A. & E., 380; 3 P. & D., 299: IJo^i'^^l^oi f^^g Palmer V. Boyer, Owen, 17: Cro. Eliz., 343 1^6 Palmer v. Hummerston, 1 C. & E., 36 - ... - - oia Pankhurst v. Hamilton, 2 Times L. P., 683 .... 541, i6l Pankhurstv. Hamilton, 3 Times L. R., 500 -^ - " " „ ," °^'' Paris V. Levy, 9 C. B. (N. S ). 342; 30 L. J., O. P, 11; 7 Jur. (N. S ) 289- 9W. R.,71; 3L. T., 334 - - - - (6,426,586 Parkes V Prescoit, L. B., 4 Ex., 169; 38 L. J., Ex., 105; 17 W. R., 773; 20 L T. 537 - - ------ 'Mo, ooU Parkins and wife v. Soott and wife, 1 H. & C, 153; 31 L. J-. Ex., 331; 8 Jur. (N. S.), 593; 10 W. R., 562; 6 L. T., 394 - 243, 358, 928, 931 Parmiter v. Coupland, 6 M. & W., 105; 9 L. J., Ex., 202; 4^Jur^, 70^ 69^ Parretv. Carpenter, Noy, 64; Cro. Eliz., 503 - - „' 1?? Parsons V. Surgey, 4 F. &F., 347 °^°' nn Pasquin's (Anthony) Case, cited 1 Camp., 351 903 , Pater v. Baker, 3 C. B., 831 ; 16 L. J., O. P., 134; 11 Jur., 370 - 305, 208. 216, 325 Paterson's Case, 1 Brown (Scotch), 629 945 Pattison V. Jones, 3 M. & R., 101; 8 B. & C, 578; 3 0. & P., 383 328, 411, 492, 500, 776 Pawley V. Scratton, STimesL. R., 146 216 Payne v. Beuwmorris, 1 Lev., 248 ------- 783, 861 Peacock v. Reynal, 2 Brow. & Gold., 151 ; 16 M. & W., 825, n. - 336, 340. 488 776 932 Peake v. Oldham, Cowp., 275; 2 W. Bl., 959 101, 108, 113, 130,'254,'265, 303, 938 Peake v. Pollard, Cro. Eliz., 214 - - - - - - - 303 Pearce v. Ornsby, 1 M. & Rob., 455 306, 769, 875 Pearce v. Whale, 5 B. & C, 88 752, 755 Peard v. Jones, Cro. Car., 383 182. 183, 186, 921 Pearson v. Lemaitre, 5 M. & G., 700; 6 Scott, N. R., 607; 13 L. J., Q. B., 353; 7 Jur., 748 - - - - 306,381,332,334,836,875,901 Pemberton v. Colls, 10 Q. B., 461; 16 L. J., Q. B., 403; 11 Jur., 1011 186, 188 Penfold V. Westcote, 3 Bos. & P., N. R., 335 - ... 276, 296 Penhymanv. Rabanks, Cro. Eliz., 437; IVin. Abr., 551 - - 208 Perkins V. Scott, IH. &0., 153 135 Pharmaceutical Society v. London and Provincial Supply Association, 4 Q. B. D., 313; 48 U. J., Q. B., 387; 27" W. R., 709 . . - 363 Phillips (B. D.)v. Badby, cited 4 Rep., 19 ... - 188,256 Phillips V. Jansen, 3 Esp., 634 - - - - 38, 172, 185, 757, 971 Phillips V. Kingston, 1 Vent., 117 130 Pioton V. Jackman, 4C. &P..257 . - - . . 410,480,497 Pierce v. Ellis, 6 Ir. C,. L. R., 55 - - - - - - 245, 541 Pinero v. Goodlake, 15 L. T., 676 - - - - - - 554 Pitt V. Donovan, 1 M. & S., 689 ■ - - - - - - 208 Plunkett V. Cobbett, 2 Selw. N. P., 1043; 5 Esp., 136 - - 333, 764 Pocock V. Nash, Comb., 253 - - - - ... 188 Poe V. Mondford, Cro. Eliz., 630 - - - - - - 189, 191 Poe's (Dr.) Case, 1 Vin. Abr., 440; cited in 3 Buls., 306 - - 134, 250, 254 Polurite v. Barrel, Sid., 220 - - - 150 Popham V. Pick burn, 7 H. & N., 891; 31 L. J.. Ex., 133; 8 Jur. (N. S.), 179; 10 W. R., 324; 5 L. T., 846; 26 J. P., 646 - - - 354, 561 Powell V. Jones, 1 Lev., 297 - - - - - . 183, 184, 185 Powell V. Plunket, Cro. Car., 52 419 Power V. Shaw, 1 Wils., 63 164, 165, 874 Preston v. De Windt, Times, July 7, 1884 109 Preston v. Pinder, Cro. Eliz., 308 - - ... . .134 Pridharav. Tucker, Yel v., 158; Hob, 126; Cart., 214 - . - - 285 Prinnev. Howe, 1 Brown, Pari. C, 64 ----.- 180,535 Prior V. Wilson, 1 C. B. (N. S.), 95 - - - . ' - - . .197 ENGLISH CASES. IxXxiii Proctor V. Webster, 16 Q. B. D., 113; 55 L. J., Q. B., 150; 53 L. T., 765; 3 Times L. R., 103 - - - - 415,433,507 Proud V. Hawes, Cro. Eliz., 171; Hob., 140 - - - - 185 Pudsey Coal Gas Co. v. Corporation of Bradford, L. R., 15 Eq., 167; 43L. J., Oh., 293; 31W. R.. 286 318 Purcell V. Sowler, 1 C. P. D., 781; (C. A.) 2 C. P. D., 215; 46 L. J., C. P., 308; 25 W. R., 362; 36 L. T., 416; 41 J. P., 789 354. 539. 563, 572, 575, 576, 583, 583, 840 Purdy V. Stacey, 5 Burr., 2698 - - 180 Quartz Hill, etc., Co. t. Beall (C. A.), 20 Ch. D., 501 ; 51 L. J., Ch., 874; 30 W. R., 583: 46L. T., 746 - - - ... ,528 Quin V. Hession, 4 L. R., Ir., 35; 40 L. T., 70 - - - - 519 Rainy v. Bravo, L. R., 4 P. C, 287; 20 W. R., 873; 36 J. P., 788 - 761 Ram V. Lauiley, Hutt., 113 - - . 471, 789 Ramsdale v. Greenaere, 1 F. & R, 61 - - - 173, 197 Raren v. Stephens & Sons, 3 Times L. R., 67 - - - - 73, 288 Ravenhill v. Upcott, 33 J. P., 399 215 Rawlings et ux. v. Norbury, 1 P. & F., 341 - - - - 379, 399 Read v. Ambridge, 6 G. & P., 308 - - - 108, 276 Read's Case, Cro. Eliz., 645 - 268,354 Redfernv. Todel, Cro. Eliz., 589 - 146 Redman v. Pyne, 1 Mod.. 19 173, 182 Redston v. Eliot, Cro. Eliz., 638; 1 Roll. Abr., 49 - - - 256 Reeve t. Holgate, 2 Lev., 63 - - - - - 101, 197 Reginald's Case, Cro. Car., 563 - 173, 197 Revisv. Smith, 18 C. B., 126; 25 L. J., C. P., 195; 2 Jur. (N. S.), 614 433, 435, 451, 460, 465, 470 R. V. Abingdon (Lord), 1 Esp., 326 - - 237, 347, 423, 537, 543 R. V. Aickles, 1 Beach, 330 - - - - - 761 R. V. Almon, 5 Burr., 2686 . . • - - 238, 381, 764 R. V. Amphlit, 4 B. &C., 35; 6D. &R., 125 - - - - 332 R. V. Annet, 3 Burn. Ec. L., 386 (9tb ed.); 1 Wm. Bl., 395 - 956 R. V. Atwood, Cro. Jac, 421 : 2 Roll. Abr., 78 - 945, 948 R. V. Barnard, Ex parte. Lord R. Gower, 43 J. P., 127 - - 262 R. V. Barry, 4T. R, 217 .... 810 R. V. Baxter, 3 Mod., 69 - - - - - - 637 R. V. Beere, 13 Mod., 319; Holt, 433; Carth..409; 3 Salk., 417; 1 Ld. Ray m., 414 - . - - - - 332,757 R. V. Boucher, 1 F. & F., 486 - - ■ - - - - 761 R. V. Bradlaugh and Besant, 2 Q. B. D., 569; 46 L. J., M. C, 286 383 R. V. Brooke, 7 Cox, C. C. 351 - - ... - 971 R V. Brown (Dr.), 11 Mod., 86; Holt. 425 286,300 R. V. Burdett. 4 B. & Aid., 95, 314 .... 767, 894, 948 R. V. Burks, 7 T. R., 4 - - - 974 R. V. Garden, Sir Robert, 5 Q. B. D., 1; 49 L. J., M. C, 1; 28 W. R, 133; 41 L. T., 504; 14 Cox, C. C, 359; 44 J. P., 119 - . - 577 R V. Carlile, Mary, 3 B. & Aid., 167 - - - 548, 549, 957 R. V. Carlile, Richard, 3 B. & Aid., 161 ; 1 Chit., 451 - - - 961 R. V. Cailile, Richard, 4 C. & P., 415 - - 368, 943 R. V. Cherry, 1 Leach, 236 - - l]<^ R. V. Clement, 4 B. & Aid., 218; 11 Price, 69 ... 549 R. V. Clendon (1713), cited 3 Str., 789 94t R. V. Clerk, 1 Barnard., 304 ^b3 R. V. Coghlan, 4 F. & F., 316 - - - - - - - 284 H V. Cooper, 8 Q. B., 533; 15 L. J., Q. B., 206; 1 Cox, C. C, 266; 10 J. p 631 ... . - - 60, 244, 381, 935 R. V. Creevey, 1 M. & S., 273 - - - - - 347, 433, 537, 549 R. V. Cruseetux.,2Moo. C. C, 53; 8C. &P., 541 ' 368 R. V. Crury, 1 M. & S., 280 - - ... - - 39 R.V. Curl, 2 Str., 788; 1 Barnard., 29 . - - - -"21? R. V. Cuthell, 27 Howell's St. Tr., 643 764 R. V. Darby, 3 Mod., 139; Comb., 65; Garth., 14 177 IxXXiv TABLE OF OASES CITED. E. V. Dodd, 2 Sess. Cas., 33 338,281 R. V. Dover, 2 Harg. St. Tr., 457; 6 Howell's St. Tr., 547 - - - 241 E. V. Dugdale, 1 E. & B., 425; 22 L. J., M. C, 50; 17 Jur., 546; Dears. C. C, 64 ... 942 E. V. Edgar, 3Sess. Cas., 29; 5 Bac. Abr., 199 304 R. V. Elwall, Gloucester Summer Assizes, 1726 ..... 958 E. V. Farre, 1 Keb., 629 - - 180 E. V, Fisher and others, 2 Camp., 563 ...-..- 557 E. V. Fleet, 1 B. & Aid., 379 - - - - - - 557 E. V. Flowers, 44 J. P., 377 - - 569 E. V. Foote, Eamsay and Kemp, Times, March 2 and 6, 1883 - - 959 E. V. Francis, L. R, 2 C. C. E, 128; 43 L. J,, M. C, 97; 32 W. E., 668- 337 E. V. Garret, Sir Baptist Hicks' Case, Hob., 315; Popham, 139 - - 386 E. V. Gathercole, 3 Lewin, C. C, 337 - ... 266, 267 E. V. Gray, 10 Cox, C. C, 184 546 R. V. Andrew, 26 J. P., 663 554, 571 R. V. Gutch, Fisher and Alexander, Moo. & Malk., 443 - 238, 381, 765 R. V. Hetherington, 5 Jur.. 529; 5 J. P., 496 944 R. V. Hiokliu, L. R, 3 Q. B., 360; 37 L. J., M. C, 89; 16 W. R., 801; 18 L. T., 395; 11 Cox, 0. C, 19 - . . - - 548, 943, 944 E. V. Higgins, 3 East, 5 31, 969 E. V. Holbrook, 3 Q. B. D., 60; 47 L. J., Q. B., 35; 36 W. E., 144; 37 L. T., 580; 13 Cox, C. C, 650; 41 J. P., 772 - - - 380, 381, 383 E. V. Holyoake, Gloucester Assizes, 1S42 .... 957 E. V. Hone, Wm., 1817 959 E. V. Holt, 5 T. E., 436 - - - - .... 379^ 399 E. V. Hornbrook, Selwyn's N. P., 13th ed., p. 1065; 13th ed., p. 1000 971 E. V. Home, 11 St. Tr., 264; Cowp., 672; Howell's St. Tr., 651 303, 619, 627 E. v; Hive, Dig. L. L., 82- ... 958 E. V. Ingram, 1 Salk., 384 368 E. V. Jellyman, 8Car. &P., 604 - - 148 E. V. Johnson, Hon. Eobt., 6 East, 583; 2 Smith, 591 ; 39 How. St. Tr., 108 - - - - 766 E. V. Kiernan, 7 Cox, C. C, 6; 5 Ir. C. L. E., 171 428 E. V. Kinnersley, 1 Wm. Bl., 394 - .... 968 E. V. Knell, 1 Barnard., 305 ....... 379^ 733 E. V. Labouchere (Lambri's Case), 14 Cox, C. C, 419 - - 379, 30o! 663 E. V. Lambert and Perry, 2 Camp., 398; 31 How. St. Tr., 340 - - 306 E. V. Langley, 2 Lord Eaymond, ,1029; 2 Salk., 697; 6 Mod,, 135; Holt, 654 .... -----24 E. V. Ledger, Times, Jan. 14, 1880 59O E. V. Leng, 34 J. P., 809 60 E. V. Llanfaethly, 2 E. & B., 940; 23 L. J., M. C, 33; 17 Jur., 1123 - 761 R. V. Lovett, 9 C. & P., 463 - 245 757 R. V. McKenney, Jebbs' Case, 99 ' 138 R. V. Matthews, 15 How. St. Tr., 1333 - - - . J . . 627 E. V. Moore, 3B. &Ad.. 188 93O E. V. Newman, 1 El. & Bl., 263. 558; 32 L. J., Q. B., 156; Dears. C. C, 80; 17 Jur., 617 -■--..... guQ E. V. Nutt(Eliz.), 1 Barnard., 306; Fitzg., 47 . - I I I 764 E. V. Osborn, 2 Barnard., 138, 166; Kel., 230 Qfi'i E. V. Paine, Carth., 405 - - .... oS? E. V. Perry, 15 Cox, C. C, 169 .... 413 ^g'i 493 R. V. Petcherini, 7 Cox, C. C, 79 ' q?o' 0^7 R. V. Philipps, 6 East, 464 - - . . , . "^''' .A R. V. Pooley (Bodmin, 1857), Digest of Crim. Law, 97 - - - "959 R. V. Ramsey and Foote, 48 L. T., 733; 15 Cox, O. C, 231; 1 C. & E., " ~ • ~ ~ — _ Q>ifl QIC! R. V. Reeves, Peake'sAdd. Cas.,84; 26 How. St. Tr 530 '- '- 9Qi R. V. Ripeal, 1 Black. Rep., 368 - . . ' ^^^ ^l\ E. V. Eosenberg, Times, Oct. 27 and 38, 1879 ..." tl R. V. Eosenstein, 2 C. & P., 414 . - . . „«n ^aa R. V. Salisbury, 1 Ld. Raym., 841 -...'' ' '""' ^^ E. V. Saunders, Sir T. Raym., 201 ' " 59 ENGLISH CASES. \XXXV E. V. Scofield, Caldeoott, 397 - 109 R. V. Sharman. 6 Cox. C. C, 312 - - - - . . - 141 E. V. Skinner. Lofft 55 - 419 434 439 446 R. V. Slaney, otJ. & P., 213 758 E. V. Soutlierton, 6 East, 136 9G<) R. V. Stuart, 3 Chit, Criiu. L., 887 - - - .... 943 E. V. SiiUiran. 11 Cox. C. C, 44 - .... 391 580 E. V. Tantield, 4J J. P.,433 - - ' 5S0 E. V. Ta.vior. 1 Ventr., 293: 3 Keb., 607; Treraayne's Entries, 326 949 K. T. Tluiiborn, 1 JJ.^n., oST - " . . . _ 114 E. V. Toijhain,4T. R.. 1.26 - . - . . 965,966,973 E. V. Tntchin (1704). 5 8t. Tr., 527: 14 Howell's St. Tr., 1095; 2 Ld. ll.iyiu., lOBL ; 1 Salk., 50; 6 Mod., 268: Holt, 434 - 637 R. V. Velev, 4F. &F.. 1117 - - . . 523 584 R ^. Waddinston(1822). 1 B. & C, 36 - - - 944, 958! 961 R. V. Walsh. 1 Moo.. 14 - - . - - 115 E. v. Walter, 3 Esp., 21 - . 241 764 R. V. Watson (1808), 1 Camp., 315 - - . . ' ms R V. Watson. James (1S17), 2 Stark., 116 - 760 R. V. Wegener, 2 Stark.. 345 - - - - 757, 971, 973 R V. Wiatt. 8 Mod., 123 .... - - - - 339 R. V. Wilkes. 4 Burr., 2527. 2568; 2 Wils., 151; Dig. L. L., 69; 19 How. St. Ti-., 1075 - 67, 943, 957 R. V. Williams (Sir William), 2 Shower, 471; Comb., 18; 13 How. St. Tr., 1370 .421 R. V. Wilson, 2 Moo. C. C, 52 106,256 R. V. Woolston, 2 Str., 834; Fitzgib., 64; 1 Barnard., 163 958 R. V. Wright, 8 T. R., 293 543 R. V. Yates, 11 Q. B. D.. 750; 53 L. J., Q. B., 778; 48 J. P., 103; 15 Cox. C. C, 273 - - - - - - £84 Ric^ V. PidgeOD, Comb., 161 - - - ' - - - 197 Richards t. Richards, 3 M. & Rob., 557 .... 353, 516, 518 Richardson v. Allen, 2 Ghitt., 657 .... 103, 106. 252, 854 Riddle v. Clvdesdale Horse Society, 13 Court of Sessions Cases (4th Series), '976 - - - 552 Ridges V. Mills, Cro. Jac, 666 146 Riding v. Smith, 1 Ex. D., 91; 45 L. J., Ex., 281; 24 W. E., 487; 34 . L. T., 500 - - - - - 165, 173, 174, 365, 375, 379, 874 Eily V. I^wis, 1 Vin. Abr., 396 - - .... 165, 874 Eisk Allah Bey v. Johnstone, 18 L. T., 630 - - 559, 581, 873, 8!^2, 909 Eoach V. Garvan, Ee Eead &Huggonson, 3 Atk., 469; 3 Dick., 794 256, 263 Eobbins v. Crafts, Cro. Eliz., 857 - - .... 39 Eoberts v. Brown, 10 Bmg., 519; 4 M. & Scott, 407; 6 C. & P., 757 557, 581 Roberts v. Camden, 9 East, 93 101, 135, 265, 304 Eoberts v. Herbert, Sid., 97; S. C. sub nom. Caus v. Eoberts, 1 Keb., 418 - - - - - - - - 31, 165, 873 Eoberts v. Eichards, 8 F. & F. , 507 501 Eoberts and wife v. Eoberts, 5 B. & S., 384 ; 33 L. J., Q. B., 349 ; 10 Jnr. (N. S.), 1037; 13 W. E., 909; 10 L. T., 603 - 164, 165, 784, 863, 874 Eoberlson v. M'Dougall, 4 Bing., 670; 1 M. & P., 693; 8 C. & P., 359 - 880, 343, 416 Robertson V. Wylde, 3 M. & Bob., 101 87s Eobinson v. Jones, 4 L. E., Ir., 391 60, 843, 343 Eobinson v. Marchant, 7 Q. B., 918; 15 L. J., Q. B., 134; 10 Jur., 156 - 194. 372, 374 Robinson v. May, 3 Smith, 3 - 505 Eobinson's Case, 1 Brown, 643 - - 945 Eobshaw v. Smith, 38 L. T., 423 410, 494, 495 Rogers v. Clifton (Sir Gervas), 3 B. & P., 587 - - 328, 339, 393, 771, 931 Rogers v. Gravat, Cro. Eliz.. 571 30 Eollins V. Hinks, L. R., 13 Eq., 355; 43 L. J., Ch., 358; 20 W. R., 387; 26 L. T., 56 ... - - 236 Rose V. Groves, 5 M. & Gr., 618 864 Eowcliffe V. Edmondset ux., 7M. & W., 12; 4 Jur., 684 - - - 148 IxXXVi TABLE OF CASES CITED. Ruel V. Tatnell, 29 W. E., 173; 43 L. T., 507; 45 J. P., 175 - 197, 28t 3^^ Eumsey v. Webb et ux., Car. & M., 104; 11 L. J., C. P., 129 173, 484, '524, ■' 783, 861, 897 Eussell V. Webster, 23 W. R., 59 74, 76, 273 Eutherfotd v. Evans, 6 Bing., 451; 8 L. J. (O. S.), C. P., 86; 4 M. & P.,163; 4C. &P., 74 58.753,866,933 Rj-alls V. Leader, L. R., 1 Ex., 396; 4 H. & C, 555; 35 L. J., Ex., 185; 13 Jur. (N. S.), 503; 14W. E., 838 - - - - 547,551 Salmon v. Isaac, 20 L. T., 885 - - - - 323, 553, 556, 922 Salter V. Browne, Cro. Car., 436; lEolI. Abr., 37- - - - 166,874 Sands v. Child, 3 Lev., 352 - - - - - . - - 376 Sandwell v. Sand well. Holt's R., 295 - .... 757 Saram (Bishop of) v. Nash, B. N. P., 9; Willes, 23 - - - - 188 Saunders v. Edwards, 1 Sid., 95: 1 Keble, 389; Sir T. Eaym., 61 - 373 Saunders v. Mills, 3 M. & P., 520; 6 Bing., 213 241 Savagev. Robery, 5Mod., 398; 2Salk., 694 - - - - 106,197,854 Savilev. Jardine,'2H. Bl.,531 106,197,834 Savile et ux. v. Sweenev, 1 N. & M., 254; 4 B. & Ad., 514 - - 166, 365 Saxby v. Easterbrook, HC. P. D., 339; 27 W. R., 188 ■ - - 556 Sayer v. Begg, 15 Ir. C. L. R., 458 518 Soarll V. Dixon, 4 F. & F., 250 - - 325, 412, 415, 483, 505, 508, 531 Scot et ux. V. Hilliar,Lane,'98; IVin. Abr., 440 - - -. - 134,350 Scott V. Sampson, 8 Q. B. D., 491; 51 L. J., Q. B., 380; 30 W. E., 541; 46 L. T., 413; 46 J. P., 408 - - - .... 897 Scott V. StansBeld, L. E„ 8 Ex., 220; 87 L. J., Ex., 155; 16 W. E., 911; 18 L. T., 572 - - - -' - - - 419 Seaman v. Bigg, Cro. Car., 480 ..... ... 173 Seaman v. Netherclift, 1 O. P. D., 540; 45 L. J., C. P., 798; 24 W. E., 884; 34 L. T., 878; 41 J. P.. 389 101, 419, 433, 433, 435, 437, 443, 449, 459, 465, 731 Seaman v. Allen, 2 Wils., 160 - 910 Senior V. Medland, 4 Jur. (N. S.), 1039 533,533 Sellers V. Till, 4 B. & C, 655 - 753 Seymour v. Butter worth, 3 F. & F., 373 - - - 573, 574, 577, 578, 840 Shepheard v. Whitaker, L. R., 10 C. P., 502; 33 L. T., 403 75, 233, 379 Shepherd v. Wakeman, 1 Sid., 79 • 39 Sheppard v. Lloyd, Daily Chronicle, March 11, 1883 - - - - 583 Shipley v. Todhunter, 7 C. & P., 680 - 333, 275, 305, 340, 390, 538, 757 Shu-e V. King, Yelv., 33 - .... - 185 Shore v. Wilson, 9 Clark & Fin., 355 946, 958 Sibley V. Tomlins, 4Tyrw., 90- .... 174,197,376,896 Sibthorpe's Case (Dr.), W. Jones, 366; Roll. Abr., 76 - - - - 188 Sidnam v. Mayo, 1 Roll. Rep., 437; 1 EolL Abr., 49; Cro. Jac, 407 - 101, 113, 365 Simmonds v. Dunne, Ir. E., 5 C. L., 358 477 Simmons v. jM^tchell, 6 App. Cas., 156; 50 L. J., P. C, 11 ; 29 W. R., ' 401 ; 43 L. T., 710; 45 J. P., 237 .... 107, 628, 629, 769 Simpson v. Downs, 16 L. T., 391 .-...-.. 541 Simpson v. Robinson, 12 Q. B., 511; 18 L. J., Q. B., 73; 18 Jur., 187 - 347, 777, 787, 882, 922 Slater v. Franks, Hob., 126 ........ 279, 800 Slowman v. Dutton, 10 Bing., 402 - - - - ... . -' 273 Smale v. Hammon, 1 Buls., 45 --.-....94 Smith V. Andrews, 1 Roll. Abr., 54; Hob., 117 ..... 185 Smith V. Cooker, Cro. Car., 513 - - . . . . . 350 Smith V. Flynt, Cro. Jac, 300 - - . 30 Smith V. Harrison, 1 F. & F., 565 ...... 737 883 908 Smith V. Hodgeskins, Cro. Car., 276 ... 340 415' 504' 777 Smith V. Matthews, 1 M. & Rob., 151 ' . ' 515' 51 1) Smith V. Parker, 18 M. & W. , 459 ; 14 L. J., Ex., 52 ; 2 D. & L., 394 663! 797 Smith V. Richardson, Willes, 30 - - ... §97 Smith V. Scott, 3 C. & K., 580 - - - - g^g. ENGLISH CASES. IxXXVii Smith V. Spooner, 3 Taunt, 346 - - - -. - - 204,307,815 Smith T. Taylor, 1 B. & P. N. E., 196 753, 755, 756 Smith V. Tliomas, 3 Scott, 546; 4 Dowl., 333; 3 Bing. N. C, 373; 1 Hodges, 353 - - - - - - 839 Smith V. Ward, Cro. Jac, 674 - - - - - 253, 'JTG, 296 Smith V. Wood, 3 Camp., 333 516,518 Snag V. Gee, 4 Rep., 16 . . . . 113,376,296 Snag T. Grav. 1 Roll. Abr., o7; Co. Entr., 33 - - - 186 Snead v. Bodlev, Cro. Jac, 397 - - - - 780 Sneh V. Weblirig, 2 Lev., 150; 1 Ventr., 276 - - - 263 Sloane V. Knight, Moo. & Mai., 74 - 588 Solomon \. Lawson, 8 Q. B., 833; 15 L. J., Q. B., 253; 10 Jur.. 796 75, 357, 264 Solomons V. Medex, 1 Stark.. 191 - - 373 Somers V. House, Holt, 39; Skin., 364 - - - - 303 Somerville t. Hawkins, 10 C. B., 583; 20 L. J., C. P., 131 ; 15 Jur., 450; 16 L. T. (O. S.i. 283 - - 324, 390, 491, 493, 513, 788, 833 Southam v. AUen, Sir T. Raym., 331 - - 195, 410, 495, 497 Sonthee v. Denny, 1 Ex., 196; 17 L. J., E.x:., 151 189, 191 ' Spackman t. Gibnev, Bristol Spring Assizes, 1878 415, 507 Sparling t. Haddon", 9 Bins;., 11: 3 Moo. & Sc, 14 - - - 753 Speck V. Phillips, 5 M. & W., 279 ; 8 L. J., Ex., 377 ; 7 Dowl., 470 - 897 Spencer v. Amerton, 1 M. & Rob., 470 - - . . . 507^ 535 Spill V. Maule, L. R, 4 Ex., 233; 38 L. J., Ex., 138; 17 W. R., 805; 20 L. T., 675 . - - . 324, 340, 344, 393, 537 Springhead Spinning Co. v. Riley, L. R., 6 Eq., 551 ; 37 L. J., Cii., 889; 16W. R.1138 - - - - - 375,379 Squire v. Johns, Cro. Jaa , 585 - .... - 267 Stace V. Griffith, L. R., 3 P. C, 420; 6 Moore, P. C. C. (N. S.), 18; 20 L. T., 197 - ■ ... 392, 413, 478, 482, 761 Stainton et ux. v. Jones, 1 Selw. N. P., 1205, 13th ed. ; 1 Dougl., 380, n. 31. 165, 873 Stamp and wife v. White and wife, Cro. Jac, 600 - 113. 303 Stanhope V. Blith, 4 Rep., 15 - - 106,135,854 Stanley V. Boswell, 1 Roll. Abr., 55 - - - 179 Stanton V. Smith, 2 Ld. Raym., 1480; 2 Str., 763 - - - 194 Stapleton v. Frier, Cro. Eliz., 251 - - 256 StebbiBg V. Warner, 11 Mod., 355 - - - - - 253. Steele v. Brannan, L. R., 7 C. P., 361; 41 L. J., 31. C, 85; 20 W. R., 607; 3o L. T., 509 . - - . - 548,944,957 Sterry V. Foreman, 3C. &P., 593 - 861,930 Stevens v. Sampson, 5 Ex. D., 53; 49 L. J., Q. B., 120; 28 W. R., 87; 41 L. T., 783; 44 J. P., 317 - 316, 318, 411, 419, 491, 499, 556, 771 Steward v. Young, L. R., 5 C. P., 122; 39 L. J., C. P., 85; ,18 W. R., 493; 23 L. T., 168 - - 305, 207, 308, 317, 514, 835 Stich v. Wisedome, Cro. Eliz., 348 ... 108, 113 Stiles V. Nokes, 7 East, 493 ; S. C. sub nom. Carr v. Jones, 3 Smith, 491 - 59, 557, 581, 897 StockJale v. Hansard, 7 C. & P., 731 ; 2 M. & Rob. (1839); 9 A. & E., 1 ; 3 P. & D., 1; 3 Jur., 905 (1840); 11 A. & E., 353; 8 Dowl., 148, 533 421 Stockdale v. Tarte and others, 4 A. & E., 1016 - - - 559, 654 Stockley v. Clement, 4 Bing., 162; 13 Moore, 376 - - - 257, 509 Stone V. Smalcombe, Cro. Jac, 648 - 143. 353 Stonerv. Audeley, Cro. Eliz., 250 134 Storvv. Challands, 8C. &P..234 - 410,411,499,500,783,864 Strauss v. Francis (No. 1), 4 F. & F., 939, 1107; 15 L. T., 674 - 569 Strauss V. Francis, L. R., 1 Q. B., 379; 35 L. J., Q. B., 133; 12 Jur. (N. S.), 486; 14 W. R.. 634 566,588 Street v. Licensed Victualers' Society, 22 W. R., 553 - 307, 559 Strode v. Holmes. Style, 338: 1 Roll. Abr., 58 - - - - 179 Stuai-t V. Lovell, 3 Staik., 93 - - - 306, 331, 335, 588, 875 Stuckleyv. Bullhead, 4 Rep., 16 180 Sturton(Lord)v. Chaffin, Moore, 142 - - ... 102,265 :Suego's Case, Hetl., 175 ........ 191 IxXXViii TABLE OF CASES CITED. Summers v. City Bank, L. B., 9 C. P., 580; 43 L. J., C. P., 261 - - 367 Surman v. Shelleto, 3 Burr., 1688 1»7 Sutton V. Johnstone, 1 T. R., 493 - ... - 474 Sutton V. Plumridge, 16 L. T., 741 - 482 Sweetapple V. Jesse, 2N. &M., 36; 5B. & Ad., 27 - - - 250,285 Swithinetux. V. Vincent etux., 3 Wils., 337 - - - - 369,382 Symmons V. Blake, 2 C, M. & E., 416; 1 M. & Rob., 477; 4 Dowl., 263; IGale, 182 - - - - 306,875 Tabart v. Tipper, 1 Camp., 350 ... 76, 220, 565, 568, 586 Talbot V. Case, Cro. Eliz., 833 - - 113 Talbuttv. Clark. 2M.&Rob., 312 241,894 Tarlton v. McGawley, Peake, 204, 217 318 Tarpley v. Blabey, 2 Bing. N. C, 437; 2 Scott, 642; 1 Hodges, 414; 7 C&P., 395 - - - -• - - 245,341,380,757,902 Tasburgh v. Day, Cro. Jac, 484 - ... 304, 205, 209 Tate V. Humphrey, 2 Camp., 73, n. - . - - - - 336, 339, 342 Taylor v. Hawkins, 16 Q. B., 308; 20 L. J., Q. B., 313; 15 Jur., 746 - 334, 346, 389, 390, 393, 518, 832 Taylor V. How, Cro. Eliz., 861; IVin. Abr., 464 179 Taylor v. Perkins, Cro. Jac, 144; 1 Roll. Abr., 44 - - - 200, 366 Taylor V. Perr, 1 Roll. Abr., 44 172,185 Taylorv. Starkey, Cro. Car., 192 - - 185 Taylor v. Swinton, 2 Shaw's So. App. Cas., 345 . - - - 438 Teacy v. McKenna, Ir. Rep., 4 C. L., 374 59 Tempest v. Chambers, 1 Stark., 67 101, 113, 265 Terry v. Hooper, 1 Lev., 115 - - - - .... 197 Theyer v. East wick, 4 Burr., 3032 31, 165, 878 Thomas V. Jackson, 3 Bing., 104; 10 Moore, 425 - - - - 197 Thompson v. Bernard, 1 Camp., 48 - - - - 276, 292. 295, 306 Thompson V. Dashwood, 11 Q. B. D., 45 390,415 Thompson t. Nye, 16 Q. B., 175: 20 L. J., Q. B., 85; 15 Jur., 285 - 891 Thompson V. Shackell, Moo. & Mai., 187 586,588 Thompson V. Twenge, 2 Roll. Rep., 433 - - - 194 Thorleyv. Lord Kerry, 4 Taunt., 355; 3 Camp., 214, n. - - - 365 Thorley's Cattle Food Co. v. Massam, 6 Ch. D., 582; 46 L. J., Ch., 713 223 Thornev. Alice Durham, Noy, 117 ■ ..... 30 Tibbott V. Haynes (1590), Cro. Eliz., 191 - - ..... 96 Tibbs V, Smith, 3Salk., 335; SirT. Raym., 33 .... 353 Tidman v. Ainslie (1854), 10 Ex., 63 - . - - 353 Tighe V. Cooper, 7 El. & Bl., 639; 36 L. J., Q. B., 315; 3 Jur. (N. S.), 716 - - - - - ... .664 Tighe V. Wicks, 33 Up. Can., Q. B. Rep., 470- - - - 173 Tilk V. Parsons, 3C. &P., 301 - - . - - 867 Todd V. Hastings, 3 Sand., 307 - - 197 Todd V. Hawkins, 2 M. & Rob., 30; 8 C. & P., 88 - 340, 483, -538, 733, 776 Tomlinson v. Brittlebank, 4 B. & Ad., 630; 1 N. & M., 455 - 103, 148, 273 Toogood V. Spyring, 1 C, M. & R., 181; 4 Tyr., 582 - 332, 390, 391, 489, 510, 513, 778 Townshend (Lord) v. Hughes (Dr.), 2 Mod., 150 - 188, 266, 303, 842, 857 Toze V. Mashford, 6 Ex., 539; 20 L. J., Ex., 225 - - . - 107 Tozier and wife v. Hawkins (C. A), 15 Q. B. D., 650, 680; 55 L. J., Q. B.,152; 34W. R., 333 - - . - - - 266 Trail v. Denham, Times, May 4, 1880 306 Traske's Case, Hobart, 236 . . 945 948 Tripp V. Thomas, 3 B. & C, 427 ; 1 C. & P., 477 - - - - - ' 848 Trotman V. Dunn, 4 Camp., 311 434,445 449 453 Tuam (Archbishop of) v. Robeson, 5 Bing., 17; 3 M. & P., 33 ' ' - ' 73 Tucker V. Lawson, 2Time,s L. R., 593 - . . . 34H Tunnicliffe v. Moss, 3 C. & K., 83 - . 343, 863, 866, 933 Turnbull v. Bird, 3 F. & F., 508 578 Turner v. Meryweather, 7 C. B., 251 ; 18 L. J., C. P., 155; 13 Jur., 683; (Exch. Ch.), 19L. J., C. P., 10 - ... . - 363 Turner v. Stirling, 3 Ventr., 36 - 314 ENGLISH CASES. IXXXiX Tuson V. Evans, 12 A. & E., 733; 5 J. P., 209 - - . . 417, 514 Tutty V. Alewin, 11 Mod., 221 183, 183, 191 Twycross v. Grant (C. A.), 4 C. P. D., 40; 47 L. J., Q. B., 676: 27 W. R., 87; 39L. T., 618 - - ' - - 375 Underwood v. Parks, 2 Str., 1200 790, 897 Usilw: fr^'Sey. I ' S;,^?^ I^'kf .Vft^'.^V ''^' '^ "^- % ..a UsiU V. Clarke, [ ^"^' ^^ ^- ^■' ^^' ^^ J" ^■' ^^3 - - 547, 549 Vanspike v. Cleyson, Cro. Eliz.. 541; 1 Roll. Abr., 67 - - - 483, 486 Vaughan v. Ellis, Cro. Jac, 213 - - - 207, 214 Vessey v. Pike, 3 C. & P., 512 - - - - - - . - 897 Vicars t. Wilcox, 8 East, 1 ; 2 Sm. L. C, 553 (8th ed.) - - - 853, 939 Vicars V. Worth, 1 Str., 471 - - - 31, 164, 165, 264, 873, 931 Villers v. Monsley, 3 Wils., 403 - ■ - - 36, 58, 79, 198 Vine, Ex parte. In re Wilson, 8 Ch. D., 364; 26 W. R., 582; 38 L. T., 730 ... .... - - 371 Vines V. Serell, 7 C. &P., 168 .... . 785,875 Vivian v. Willet, Sir T. Raym., 207: 3 Salk., 326 - - - 193, 365 Wakeley v. Cooke & Healey, 4 Ex., 511 ; 19 L. J., Ex., 91 - 74, 663 Wakeley v. Healey, 7 C. B., 591 ; 18 L. J., C. P., 241 - 58, 73, 263 Wakeley v. Healey & Cooke, 4 Ex., 53; 18 L. J., Ex., 436 - - 367 Wakeley v. Johnson, Ry. & M., 422 - - 520, 903 Waldgrave (Sir William) v. Ralph Agas, Cro. Eliz., 191 : 1 Roll. Abr., 75 - - - - 256, 263 Walden r. Mitchell, 3 Ventr., 265 - - - - 30, 38 Walker v. Brogden. 19 O. B. (N. S.), 65; 11 Jur. (N. S.), 671; 13 W. R., 809; 12 L,. T., 495 73,571,591 Walker v. Clarke. 56 L. T., Ill; 3 Times L. R., 397 - 236 Wallace V. Carroll, 11 It. C. L. R., 485 494 Waller v. Loch (C. A.), 7 Q. B. D., 619; 51 L. J.. Q. B., 274; 30 W. R., 18; 45 L. T., 242; 46 J. P., 484 - 390,413,482,483,488,494,498 Walmesly v. Russell, 6 Mod., 200 - - - 95 Walters v. Mace, 3 B. & A., 756 - - - - - 810 Ward V. Smith, 6 Bing., 749; 4 M. & P., 595: 4 C. & P., 303 333, 374, 757 Ward V. Weeks, 7 Bing., 211; 4 M. & P., 796 106, 343, 355, 358, 854, 857, 9.34 Warden v. Bailey, 4 Taunt., 67 • - - 474 Warifig V. M'Caldin, 7 Ir. R., C. L., 383 - - - - - 507 Warman v. Hine, 1 Jur., 820; 1 J. P., 346 - - 58, 69, 72, 327, 654 Warns V. Chadwell, 2 Stark.. 457 - - - - 331 Warr v. Jolly, 6 O. & P., 497 - - - - - - - 516, 518 Warren v. Warren, 1 C, M. & R., 250; 4 Tyr., 850 - 232, 344, 477, 757 Warton v. Gearing, 1 Victoria L. R. Cases at Law, 122 - - - 185 Warwick v. Foulkes, 13 M. & W., 508 - - - 347, 771, 787, 882 Wason V. Walter, L. R, 4 Q. B., 73; 8 B. & S., 671; 88 L. J., Q. B., 34; 17 W. R., 169 - - - 543, 544, 564, 574, 578, 726 Waterfield v. Chichester (Bishop of), 2 Mod., 118 - 556 Watkin v. Hall, L. R., 3 Q. B., 396; 37 L. J., Q. B., 125; 16 W. B., 857; 18 L. T., 561 ; 82 J. P., 485 .... 350, 353, 355, 654 Watson V. Gierke, Comb., 138 - 165,873 Watson V. Reynolds. Moo. & Mai., 1 - - - 315. 216, 514 Watson V. Vanderlash, Hetl., 71 - - - 189. 191, 192 Watts V. Fraser, 7 C. & P., 369; 7 Ad. & E., 223; 6 L. J., K. B., 226; 1 M. & Rob., 449: 2 N. & P., 157; W., W. & D., 451 233, 241, 379. 903 Watts V. Rymes, 2 Lev., 51; 1 Veutr.„ 213; 3Salk., 325 - - - 253 Weatherstonv. Hawkins, 1 T. R., 110 - - - . 39,389,518,773 Weaver v. Lloyd, 2 B. & C, 678; 1 C. & P., 295; 4 D. & R,, 330 654, 797 Web V. Poor, Cro. Eliz., 569 113 XC TABLE OF CASES CITED. Webb V. Beavan, 11 Q. B. D., 609; 52 L. J., Q. B., 544; 49 L. T., 201; 47J. P., 488 . - - - .... 96,111,273 Weldon v. De Bathe (C. A.), 14 Q. B. D., 339; 54 L. J., Q. B., 113; 83 W. E., 338; 53 L. T., 520 784, 854, 862 Weldon v. Johnson, Times, May 27, 1884 - - - - - 582 Weldon v. Winslow. Times, March 14-19, 1884 58, 412, 499, 523 Wells V. Webber, 3 F. &F., 715 - 74 Wenman v. Ash, 13 C. B., 836; 33 L. J., C. P., 190; 17 Jur., 579; 1 C. L. E., 593 - - 324 Western Co. Manure Co. v. Lawes Cham. Manure Co., L. E., 9 Ex., 218; 43 L. J., Ex., 171 ; 23 W. E., 5 - - 76, 217, 231, 223, 710 Weston V. Beenian, 27 L. J., Ex., 57 - - 377 Weston V. Dobniet, Cro. Jac, 433 - - 471 Wttherell V. Clerkson, 13 Mod., 597; 11 Mod., 297 ■ - - - 217 Wetherhead v. Armitage, 2 Lev., 233; 3 Salk., 328; Freem., 277; 2 Show., 18 - - ... . . 174, 855 Wharton v. Brook, Ventr., 31 - - 855 Whistler t. Euskin. Times, Nov. 16 and 37, 1878 - - - 568, 588 White et ux. v. Harwood et ux.. Style, 138; Vin. Abr., Baron & Feme, Aa. - 369 Whiteley v. Adams, 15 C. B. (N. S.), 393; 33 L. J., C. P., 89; 10 Jur. (N. S.), 470; 12 W. E., 153 - - - - 338, 390, 417, 476, 517, 529 Whitfield v. S. E. E'y Co., El., Bl. & El., 115; 37 L. J., Q. B., 339; 4 Jur. (N. S.), 6S8 - - 333,343,361,364 Whittington v. Gladwin, 5 B. & C, ^80; 3 C. & P., 146 - - 194, 195 Wilby v. Elston, 8 C. B., 142; 18 L. J.„C. P., 320; 7 D. & L,, 143 166, 649, 874 Wild V. Tomkinson, 5 L. J., K. B., 365 369 Wilford V. Berkeley, 1 Burr., 609 - - - 910 Wilk's Case, 1 Eoll. Abr., 51 276, 296 Williams v. Beaumont, 10 Bing., 360; 3 M. & Scott, 705 - - - 364 Williams v. Gardiner, 1 M. & W., 345 ; 1 Tyrw. & Gr., 578 ; 3 C, M. & E., 78 ,- - - - . ... 261 Williams v. Linfords, 3 Leon., Ill ----..-.39 Williams v. Magyer, Times, March 1, 1883 - . . X06 Williams v. Spowers, Australian Law Times, May 13, 1883, 113 - - 567 Williams v. Stott, 1 C. & M., 675; 3 Tyr., 688 - 113, 141 Williamson v. Freer, L. E., 9 C. P., 393; 43 L. J., C. P., 161 ; 32 W. R., 878; 30 L. T., 332 - - - 245, 343, 343, 411 , Willmett V. Harmer, 8 C. & P., 695 - ... 663 Wilson V. Collins, "5 C. & P., 373 - . . . . : 343 434 531 Wilson V. Fitch, 41 Cald ,363 '533 Wilson V. Reed, 3 F. & F., 149 578 Wilson V. Robinson, 7 Q. B., 68; 14 L. J., Q. B., 196; 9 Jur., 736 347, 390, w ^ r. ..r ^. 413, 481, 771, 787, 883 Wmgard V. Coxe, W. N. 1876, p. 106; Bitt, 144; 20 Sol. J., 341; 60 L. T. Notes, 304 : . . '. . . 579 Winterbotham v. Wright, 10 M. & W., 115 .... 440 Wisdom V. Brown, 1 Times L. R., 412 .... 529 Wiseman v. Wiseman, Cro. Jac, 107 - ----- 263 Wood V. Gunston, Style, 463 - . - - - - 438 439 Woodard v. Dowsing, 3 Man. & Ry., 74 - - - - 73' 343 Woodgate V. Ridout, 4 F & F., 303 - 73, 285, 580, 581, 769! 924 Woodruff V. Wooley, 1 Vm. Abr., 463 - - - . 179 Woodward v. Lander, 6 C. & P.. 548 - - - 415, 489, 50T, 543, 789 Woolnoth V. Meadows, 5 East, 463 ; 2 Smith, 38 - - 150 l.'iR .SoV qi2 '"ml K-fchfi; *>.%^:r,' " "■ * ^ "J =» ^ "* f i ■ Z Wright V. Moorhouse, Cro. Eliz., 358 . . . 'i-io, idb, m5 Wright V. Woodgate, 3 C, M. & R., 573; 1 Tyr. & G., 18- 1 Gal 399 331 Wrimanv.Ash,13C.B.,836- - . . 339.389,481,760 Wyatt V. Gore, Holt, N. P., 299 I [ ', " ggj • ENGLISH CASES. XCl Tarborough v. Bank of England, 16 East, 6 361 Yardley V. Ellis, Hob., 8 - - - 185 Young V. Hickens, 6 Q. B., 606 318 Young V. Macrae, 3 B. & S., 264; 33 L. J., Q. B., 6; 11 W. R., 63; 9 Jur. (N. S.), 539; 7 L. T., 354; 27 J. P., 133 - - - 76, 230, 324 Yrisarri v. Clement, 4 L. J. (O. S.), C. P., 138; 3 Bing., 433; 11 Moore, 308; 3 C. & P., 238 60,751,753,756 Zenobio v. Axtell, 6 T. B., 163; 8 M. & S., 116 - . - . 277 XCll ENGLISH EEPOETS CITED. TABLE OF ENGLISH REPOETS CITED IN THIS WORK. Abbebviated POEM OF EEFEEBNCE. A. &E B. & Ad B. & Aid B. & C B. &S B. & P Bing Bing. N. C. . . . Burr C. B C. B. (N. S.)| C. & J C. & K., or I Car. & K. ; C, M. & R, or Cr., M. &R C. & P Camp., or Camp. N. P. Eep. .. I j Co. Rep Comb Cowp Cox C. Cor Cox Crim. Cas Cro. Jac -j D. & M Dears., or Dearsly's C. C Dow, (N. S.)| E. & B B., B. &E..| E. & E East Esp Ex. Rep I F. & F. N. P. I Eep f H. &C Titles. Adolphus and Ellis Atkyns' Reports, by ) Sanders ". J Barnewall and Adolphus. Barnewall and Alderson.. Barnewall and Cresswell. Best and Smith Bosanquet and Puller Bingham's Reports Bingham's New Cases Burrow's Reports Common Bench Reports. . Common Bench (New ) Series) j Crompton and Jervis .... Carringtoii and Kirwan -j Crompton, Meeson and ) Roscoe ) Carrington and Payne . . . Campbell's Nisi Prius ) Reports j Central Criminal Court ) Session Papers ) Charley's Cases at ( Chambers j Coke's Reports Comberback's Reports . . . Cowper's Reports Cox's Criminal Cases. . < Croke's Reports (temp. ) Eliz., Jam., Cha.). ...\ Davison and Merivale... Dearsly Dowling's Practice Re- ) ports (New Series) f Ellis & Blackburn Ellis, Blackburn and ) Ellis f Ellis and Ellis East's Reports Espinasse's Reports '. Welsby, Hurlstone and ) Gordon f Foster and Finlason Hurlstone and Coltman . . Vols. 13 5 5 10 10 5 10 6 5 18 30 Code't. 2 3, and vol. iii pts. 1,2 6 1 3 13 and vl. xiv, pt. 1. 4 1 3 16 6 11 4 4 K. & Q. B. Chancery. . K. B K. B K. B Q. B. C. P C. P C. P K. B C. P C. P Exch Nisi Prius, Exch....... Nisi Prius . . Nisi Prius . . Peeiod OP TIME COMPEE- HENDED. K B K. K B... R I \ K. Q.. &Q. B.... B... Crown Cases. Q. B Q. B Q.B. K. B Nisi Prius. Exch Nisi Prius. Exch 1834-1840 1736-1755 1830-1834 1817-1833 1822-1830 1861-1869 1796-1807 1822-1834 1834-1840 1757-1771 1845-1856 1856-1865 1830-1833 1843-1850 1834-1836 1823-1841 1808-1816 1573-1 filO 1685-1699 1774-1778 1843 1583-1641 1843-1844 1853-1856 1853-1858 1858 1858-1861 1801-1813 1793-1807 1847-1856 1858-18C7 1862-1805 ENGLISH EEPOETS CITED. XCIU Table op English Reports Cited in this 'Wobk— Continued. Abbreviated FORM OF REFERENCE. Titles. H. L. Cas. .... H. &N Hob How. St. Tr. . . J. & H Keb L. & C L. R L. J L. T Lev Lofft M. &G M. & M M. & R., or I M. & Rob. f M. & S M..& W Mod. Rep Moo. & Rob. ) N. P. Rep. i P. & D Price Q. B., or Q. B. Rep Roll. Abr! Ry. & M Scott N. R . . . Starkie N, P. Cas. . Strange T. & G T. R [ Taunt Vent W. N j- W.R.,orW. ) Rep ) Wms.Saund < Clark and Finelly Hurlstone and Norman . . Hobart's Reports Holt's Reports Howell's State Trials Johnson and Hemming. . Keble's Reports Leigh and Cave Law Reports ) Law Journal >■ Law Times ) Levinz's Reports Loff t's Reports Manning and Granger. . . Moody and Malkin Moody and Robinson. . . !■ Maule and Selwyn Meeson and Welsby Modern Reports Moody and Robinson. . . !• Perry and Davison Popham's Reports Price's Reports Adolphus and ElUs ) (New Series) j Raymond (Lord) Rolle's Abridgment Ryan and Moody Scott's New Reports Starkie's Repoi'ts < Strange's Reports Tyrwhitt and Granger. . . Term Reports (Durn- ) ford and East) j Taunton's Reports Veiitris' Reports Weekly Notes ■] Weekly Reporter ■! Sir E. V. Williams' Notes to Saunders' Reports (164a-l 673)... Vols. 12 7 1 1 34 3 3 1 Cottrt. House of Lds. Exch K. B K. B Chancery . K. B Crown Cases. Period OF TIME compre- hended. 1831-1846 1856-1861 1603-1635 1688-1711 Earlv date 1830. 1860-1863 1661-1679 1861-1865 See Note to Comparative Table of Law Reports. 16 12 4 1 18 18 3 3 1 8 2, and vol. iii, pt. 1. 3 1 K. B K. B C. P Nisi Prius . . Nisi Prius . . K. B Exch K. B Nisi Prius . . . 1660-1697 1773-1774 1840-1844 1837-1830 1831-1844 1813-1817 1836-1847 1669-1783 1831-1814 1838-1841 1592-1637 1814-1824 1841-1853 1694-1784 1614-1625 1833-1826 1840-1845 1815-1832 1726-1742 1836 1785-1800 C. P 1808-1819 K. B 1668-1691 Published weekly with the Law Reports. See the Comparative Table of Law Reports. Q. B K. B Exch Q. B K. B K. B Nisi Prius . . C. P Nisi Prius . K. B Exch. K. B. K. B. 1871 XCIV TABLE OF CUERENT ENGLISH EEPOETS. ■&f P^ O Cm P5 W CQ I— I is H f^ & o o p^ 1-q m I— I EH o K <0 ^ p g o t< (D O III Sit -2 g fe S: •* •s I a « e S « £ o I S^ &:§ £ III ° a 1 1^1 S 4 •S S S " 1 S.g I « I! *■ g is eg d) S S 'Si 11 Q. 5 » i S3 i i3 -a §5 eg »■: S J3 ■S i it I ^ 5 ^ o I o 5 o °° i? s ■3 1^5 111 » S g u p. '^ a '*-* ■a M o -11 So? -»i «»H a US |.g| r 111 ISSfe 5SS5 00 45 CO lA CD teste rf* JO teste CO rJH teSte teSte tesi OS O CD Ot^ 00 4^00 t- 00 GO -2 00 SO t- ao-i->ao o5® m « -S K "^ M ■§4 eg «d r i° d Oi s pa ■f^ O" -- ^ > fe 00 go o § S3" a «( '^te'lja SHf^H g;a ISO'S -g 1§§ ^^ .a w- .■ •aS 5ll3 °g a s of-n* si S 3 © THE LAW OF DEFAMATION. CHAPTEE I. A BEIEF HISTORICAL REVIEW OF THE LAW OF DEFAMATION. ANCIENT lAWS. § 1. The Mosaic Laws. 2. The Laws of Ancient Egypt. 3. The Laws of the Athenians. 4. The Eoman Law — The Twelve Tables. 5. The Progress of the Roman Law. 6. The Laws of Sylla. 7. The Cornelian Law. 8. The Theodosian Code. 9. Laws Inflicting Punishment upon Libelers. 10. The Institutes of Justinian. 11. The Edict of Valentinian and Valens. 13. The Difficulties of the Civil Law. 13. The Roman Law of Libel THE LAW OF ENGLAND. 14. The Ruins of the Roman Law. 15. Under Alfred and Edgar. 16. Under the Norman Kings — Bracton. 17. In the Tear Books. 18. The Statute of Westminster. 19. The Statutes of Richard. 20. Libels of the Star Chamber. 21. Justices of the Peace. 23. The Rights of Personal Property Include those of Repu- tation. 23. Concluding Remarks. AMERICAN LAW OF DEFAMATION. 24. History of the American Law Identical with the Eng- lish Law. 25. An Early Colonial Statute. ANCIENT LAWS. A preliminary review of the codes of those law-makers who in the beginnings of society united the law with their religion 1 2 A BRIEF HISTOEICAL EEVIEW and morals will undoubtedly be of some assistance in an ex- amination of the present state of tiie law of defamation. As to the importance of laws by which every man's conduct is to be regulated, not only whenever he writes, but even when- ever he speaks, or as to the necessity for legislative caution where the mischief and inconvenience which would result from even a slight defect are liable to indefinite multiplica- tion by the constant application of the law, little remains to be said. § 1. Mosaic Law. — Among the Jews, to whom a distinct revelation was made, one of the main purposes of which was to revive the characters of the law of nature and to retrace ' those lines which were defaced and almost obliterated by cor- rupt traditions, to slander any one, particularly those in au- thority, was expressly forbidden by the law of Moses. The early denunciations of the Mosaic law against defamation are few and simple; no specific punishment, except in one in- stance^ was appointed against calumniators. There is, however, scarcely any offense which is more frequently alluded to in the psalms of David, or more strongly described in the ener- getic and figurative language of the East, than that of defama- tion — whether it be for the purpose of characterizing the con- duct of depraved and malicious men, of denouncing Divine vengeance against them, or depicting the wretched and for- lorn state of their unhappy victims. Mention is seldom made of this species of injury without some expression which shows that defamation was meant in its strict sense as implying a false and deceitful representation. For example, we are told in the psalms: Thou shalt destroy them that seek leasing; the Lord will abhor both the bloodthirsty and deceitful man.' His mouth is full of cursing, deceit and fraud;. under his tongue, ungodliness and vanity .^ There is none that doeth good, their throat is an open sepulchre, the poison of asps is under their lips, their mouth is full of cursing and bitterness, their feet are swift to shed blood." Let the lying lips be put to silence which cruelly, disdainfully and despitefully speak against the righteous.* What man is he that lusteth to lire and would fain see good days; keep thy tongue from evil and 1 Psalm 5. 3 Psalm 14. 2 Psalm 10. 4 Psalm 31. OF THE LAW OF DEFAJIATION. 3 thy lips that they speak no guile.' False witnesses did rise up against me; they laid to my charge things that I knew not; the very abjects came against me unawares, making mouths at me, and ceased not. Thej'' imagine deceitful words against those that are quiet in the land; they gaped on me with their mouths and said, fie ou thee! fie on thee! we saw it with our eyes.' My lovers and my neighbors did stand looking upon my trouble and my kinsmen stood afar off; they also that sought after ni}' life laid snares for me, and the}' that went about to do me evil, talked of wickedness and imagined mischief all the day long.^ Thj tongue imagineth wickedness and with lies thou cuttest like a sharp razor. Thou hast loved to speak all words which may do hurt; O thou false tongue,' therefore shall God destroy thee forever.* The ungodly are froward even from their mother's womb; as soon as they are born they go astray and speak lies, they are venomous as the poison of a serpent.^ Deliver me from mine enemies, O God! behold they speak with their mouth, and swords are in their lips.* They that sit in the gate speak against me, and the drunkards make songs upon me.^ The publication of false reports affecting the character of others is prohibited by the Mosaic law, although no punish- ment is annexed to a violation.^ "Whether that vras left to the discretion of the judge, or no punishment whatever was in- flicted, seems to be doubtful. This last supposition prevailed with respect to the greater number of extrajudicial offenses during the infancy of nations, which approaches nearly to a state of barbarism and lawlessness, wherein merfe verbal at- tacks on reputation are not so highly estimated, nor yet even violent outrages so strictly interdicted as afterwards. But, on the contrary, a person thus injured was permitted to avenge him- self on his traducer, provided he did not beat him to death or render him a cripple. If a wicked action which a man related concerning his neighbor was true be received no punishment whatever; for the exceptio veritatis then operated in full force.^ 1 Psalm 34. 'Psalm 59. 2 Psalm 35. * Exodus, 23 : 1. 'Psalm 38. 'Michaelis' Comm. on the Laws of 4 Psalm 53. Moses, art. 281, sec. 3 (Smith's trans- 5 Psalm 58. lation). <• Psalm 59. 4 A BRIEF HISTOEICAL EEVIEW There was one instance, and but one, where the law of Moses imposed a specific punishment upon the publication of calum- nious falsehood, and that was where a man falsely accused his wife of not having proved a virgin on the wedding night.' The penalty in respect to such a charge, whibh, where well founded, was expiated by the death of the criminal, was three- fold: 1st, corporal, by stripes; 2d, by the payment of a pecun- iary fine, viz., one hundred shekels, to the woman's father, which was the highest fine imposed by the Mosaic law, and was no doubt given to the father in respect of the reproach which had been cast, not merely on the woman herself, but on her parents, brothers and sisters, and the whole family; 3d, by his forfeiture of the right of divorce. § 2. The Laws of Ancient Egypt. — Little is known of the taws of ancient Egypt, — the venerable territory at once of science and of superstition, — j'et is it matter of moral cer- tainty that they were not destitute of such restraints. The well-known fact that this singular people erected a tribunal ^ for trying the conduct even of their kings after death, and of decreeing or denying the honors of sepulture, according to the verdict, is in itself sufficient to demonstrate not only that they fully understood and appreciated the value of reputation and character, but also that they duly estimated and encouraged the love of reputation as a great moving principle of human conduct; and that they possessed sagacity sufficient to turn that knowledge practically to the public account by using this moral power in the most forcible and advantageous manner. There is perhaps no other memorial extant of this extraor- dinary nation which so strongly characterizes their political genius as does this remarkable institution. The effect of this custom among the Egyptians must have been greatly height- ened by its connection with their superstition in respect of the rights of sepulture, and the religious necessity of preserving the bodies of their dead in order to their subsequent re-anima- tion.^ It is impossible to suppose that, whilst even after death conduct and reputation were the subject of anxious inquiry, di- rect and immediate provision was not also made by the laws of Egypt for securing and preserving the characters of the living.* 1 Deut., 23: 13, 19. 3 Roliin's HUtoire des Egyptiens, 73. 2 Diod. Sic, B. 1. 41 Starkie on Slander, VII. OF THE LAW OF DEFAMATION. 5 § 3. The Laws of the Athenians. — The laws of Solon, which embraced morals as well as civil duties, extended in a most direct aim to calumny. Whoever, says that legislator, shall calumniate any man while alive, in the temples, courts of law, treasuries, or where games are celebrated, shall pay three drachms to the injured man and two to the public treasury. la the life of Solon, Plutarch adverts to the same law : " He shall be fined who slanders any man." This law is alluded to by Lycias in his oration in Theomnestem. Ispcrates, in Lochitem, quotes another law of Solon. He shall incur a fine of five hundred drachms who reproaches any one with a heinous offense against the laws of his countrj'. The laws of Solon had a sweetness and benevolence which passed into the manners of the Athe- nians, and, in the form of politeness, constituted their distin- guishing feature. The Athenians were only the most polite people of Greece, inasmuch as they were the most social and benevolent.^ Solon justly concluded that the liberty of the citizen would be imperfect unless his character were protected. Hence the penalties denounced against libelers, and the per- mission to prosecute them by public accusation; the prohibi- tion of libeling the dead, as offending the piety of the living, and perpetuating the hatred of families. Plutarch commends this law. He has, however, quoted it partially. Solon punished the calumniator, not on account of injury to the dead, but in respect to the quiet of families and the public peace. Ulpian adverts to this law, and according to Suidas it was the subject of public accusation. " Itaque veteres," says Pliny, " ad men- tionem defunctorum testabantur, memoriam eorum a se non solicitari." ^ There are other laws of Solon directed against defamation, but as no penalties are annexed to them they are merely prohibitory. The orators of Athens were restrained in their public harangues, and subject to a fine for contumelious lano-uage. The Athenians had one law which was purely po- litical. At Athens an action of slander was given against any one who disparaged another for belonging to a trade.'' The laws against libels which involved the peace and honor of Athens were executed with great severity. Phidias, the cele- brated sculptor, was prosecuted for a libel and thrown into 1 Epitaphius of Pericles, 2d lib. ^ i pet. Leg. Atticse, 535. rpjiQC 3 Holt on Libel, 15. 6 A BEIEF HISTOEICAL EEVIEW prison because he had represented on the shield of Minerva some circumstances which impeached the credit of the ancient history of Athens.' § 4. The Ancient Roman Law of the Twelve Tables — compiled about three hundred years after the founding of the imperial city — of Koman codes comes first in the order of time. Its compilation, so far as it relates to private law, was only the reducing to writing of what had been before matters of usage. The object in riew seems to have been political rather than legislative — the settlement of disputes between the patricians and plebeians as to the rights of the latter, and the regulation of judicial proceedings so as to check the arbitrary power of the consuls. All we know of them now is from the commentaries upon them by Gains, Ulpian and others con- tained in the Pandets, and some passages in the writings of Cicero and in Livj^'s history. By the law of the Tables on this subject it appears that " whosoever slanders another by words or defamatory verses, and injures his reputation, shall be beaten with a club." ^ A corrupt and malicious witness expiated his of- fense by being thrown headlong from the Tarpeian rock. It is presumable that the laws against defamation would, in all earl}-- stages of civilization, be few and simple. Their main object Avould be the preservation of the public peace by the infliction of penalties in respect of oral defamation. Libels would be out of the question when few could read, and fewer still could write. Many of the earliest laws which history has transmitted to us are of a penal rather than remedial nature; they prescribe specific penalties or fines rather than damages, proportioned to the real circumstances, and, as is usual with early legislators, their enactments are not general, but fre- quently limited and confined to particular imputations which were considered as likely to produce violence and outrage. § 5. Progress of the Roman Law.— With respect to the laws of Eome, in cases of defamation, there is some perplex- ity. In the dark age of the Decemviri, the author of libels and satires was punished with death.' But as the manners of the Eoraans were insensibly polished after the expulsion of the Decemviri, their laws fell into disuse — not formally re- 1 Plutarch, in Periclem. 'Hook's Rom. Hist., 314. * Cooper's Justinian, 667. OF THE LAW OF DEB'AMATION. 7 pealed, but the humanity of the age stopped the mouth of the accusers. The Yalei-ian law took from the magistrates the power of inflicting death or any corporal punishment upon a free citizen ; the laws of the Decemviri were thus indirectly repealed. It wag to this early time of the republic that we may refer what Livy says of the Eomans, that no people were disposed to more moderation in their punishments. § 6. The Laws of Sylla partook of the darkness of the age of the first kings of Eome, and followed the examples of early ^ times in his laws against libelers. But they fell into disuse ' after his death; and though in the days of Horace a libeler might be deterred yormidine yustis, it was deemed no great hazard in cases of private libel if the libeler could support the truth of his charge. § 7. The Cornelian Law decreed that the convicted author Famosi Carminis should be deprived of the right of making a testament, or, as some understand it, should not be suffered to give evidence in a court of justice. Tiberius, through the wholfe of his reign, subjected satirical writers, in cases of pri- vate calumny, to the same punishments as for offenses against the laws Icesce inajeatatis. The Csesars were not, however, the first who extended these laws to libelers. Sylla decreed that it should thenceforward form a part of the laws Icssm majesta- tis to declaim against any public officers.^ In the early ages of the republic the laws Iwscb majestatis implied crimes against the state ; the title of the law was indeed known in ancient times, but the spirit of it differed from the modern application. In the days of the republic the treachery of a commander, the seditious spirit which threw the state into disorder, the cor- rupt administration which impaired the majesty of the Eoman people, were the objects of this law. These were acts, and acts Avere punished ; but words, says Tacitus, were free. Au- gustus was the first who brought private libelers under the penalties of this law, incensed by the licentious spirit of Cas- sius Severus, who had wantonly defamed the most illustrious characters of Rome. This law would probably have perished with the occasion but for the succession of Tiberius, who, on being asked by the praetor if process should be granted upon this law of Augustus, replied that the law against libelers must be executed. 1 Cic. Fam. Epist., 3, 11. 8 A BEIEF HISTOEICAL EEVIEW It is proper to observe, in this place, that a distinction was very early taken in the Eoman law between slander spoken and written ; and the injuria verhalis was deemed to consti- tute a much lower degree of injury than the malum carmen and famosus Ubellus. The jurists are unanimous in their in- terpretation of the laws against slander that the truth of contumelious charges excused the speaker; in other words, according to the technical language of our law, that he might justify his charges, provided they were imputations of crimes falling under the cognizance of the ordinary tribunals. It is to this distinction, and a consideration of the security which the law necessarily extended to such as made charges with a view of bringing them into legal inquiry, that we must refer the famous response of Paulus, " Eum qui nocentem infamavit, non esse bonum sequum ob eam rem condemnari, peccata enim nocentium nota et opertere et expedire." He adds, "Nulla scilicet est contumelia quae fit dignis." But if the charge at the tijne of making it were not cognizable by law, the crime being either satisfied by punishment or excused by pardon, or in case the reproach were of a corporal defect or natural infirmity, under such circumstances the truth was deemed rather to enhance than to palliate the injury, and the malignity of the speaker's mind was principally regarded.' § 8. Codex Theodosianus, the Theodosian Code. — Theodo- sius II., emperor of Rome, caused to be made a collection of the constitutions of the former emperors, which has been called the Theodosian Code. It is in this code that we find for the first time a distinct series of laws on defamation, entitled the four constitutions of Constantine, de Famosis Libellis. As these constitutions are said by Barrington to have been intro- duced by Sir Edward Cokeinto the Star Chamber, and declared by him to be the resolutions of the judges of that court, and to have descended to us from that period as the language and rule of the common law, it would seem necessary to consider them with more than a passing reference. I have therefore given the constitutions in the Latin, with a translation of my own, for the benefit of those members of the profession who are not familiar with the original tongue. In the Theodosian Code the constitutions are called Quatuor Constitutiones Constantini de Famosis Libellis, though they 1 Holt on Libel, 31. OF THE LAW OF DEFAMATION. ■ 9 include the rescripts of Yalens, Yalentius and Valentian. The first is as follows : First Constitution: "Si quando famosi libelli reperiantur, nuUas exinde calumnias, patiantur ii, quorum de factis ¥el nominibus aliquid continebunt, sed scriptoris auctor potius re- periatur, et, repertus, cum omni rigore cogatur, his de rebus, quas proponendas credidit, comprobare, nectamen supplicio, etiamsi aliquid ostenderit, subtrahatur." Translation: If at any time libels are found, let those con- cerning whose acts or names they make mention suffer no false accusations therefrom, but rather let the one who instigated the writer be found, and, when found, let him be compelled with all rigor to give proof concerning those things which he has thought fit to set forth; nor yet let him be released from punishment even if he shall show anything. This constitution points at libels containing charges against oflScers of the state, the authors of which could not be found. The design of the emperor seems to have been to bring the accusers forward, and not to sufifer them to disperse anony- mous defamation. Second Constitution: CoxsTAiTTmi Secunda Constitutio. — " Licet serventur in officio tuo, et vicarii, exemplaria libel- lorum, qui in Africa delati sunt, tamen eos, quorum nomina continent, metu absolutus securitate perfrui sinas, solumque moneas, ut ab omni non solum crimine, sed etiam verisimili alieni esse festinent. — ]^am qui accusandi fiduciam gerit, opor- tet comprobare, nee occultare quag sciverit, quoniara predica- bilis erit ad dictationem publicam merito perventurus." Translation: Second Deoeee of Constantine. — Although copies of libels which have circulated in Africa are preserved in 3'our office and in that of your deputy, nevertheless you will permit those whose names they contain, to enjoy peace and freedom from fear, and you will only admonish them that they hasten to be free not only from crime but also from the ap- pearance of it. — For he who has the confidence to make an accusation ought to establish it and not conceal what he knows, since with merit about to fall into the act of public prescrip- tion, he will be praiseworthy. It will be seen hy the translation that this constitution re- fers to libels already in the possession of his proconsul or his 10 A BEIEF HISTOEICAL EEVIEW deputy, or to such as were transmitted anonymously to the mag- istrate. It relates to the various laws in the Digest de criminis nunciatione magistratrui, facta, of which mention is frequently made by Seneca, Pliny and Tacitus. Third Constitution: Constitdtio Teetia ad Janueium. — " Ut accusatoribus patientia praebenda est si quern in Judioio persequi volunt, ita famqsis libellis fides habenda non est, neo super his ad nostram scientiam referendam cum eosdem libel- los flammis protinus conducat aboleri, quorum auctor nullus existit." Translation : Thied Deceee in Januaet. — As patience is to be shown to accusers if they desire to prosecute any one in court, so no credit must be given to libels; nor should they be brought to our knowledge, since he may cause such libels, of which no other appears, 'to be immediately destroyed by fire. Fourth Constitution,: Constitutio Quaeta. — " Famosa scrip- tio libellorum qu« nomine accusatoris caret, mininle exami- nanda est, sed penitus abolenda; nam qui accusationis promo- tione confidat, libera potius intentione, quam captiosa atque occulta conscriptione, alterius debet vitam in judicium de- vocare." Translation: Foueth Deceee. — A defamatory writing which does not have the name of the accuser must not be examined at all, but must be wholly destroyed; for he who trusts in the motive of his accusation ought to call another's life into judg- ment rather by an outspoken chafge than by an insidious and secret writing. Fifth Constitution, to the Africans: Constitutio Quinta, ad Afeos. — -"Libellos, quos famosos vocant, si fierit possit, abo- lendos, inclytus pater noster providit, et hujusmodi libellos, ne in cognitionem quidem suam, vel publicam jussit admitti; non igitur vita cujusquam, non dignitas, concussa his raachinis va- cillabit; nam omnes hujusmodi libellos concremari decernimus." Translation: Fifth Deceee, to the Afeioans. — Our illus- trious father took care that writings which are called defama- tory should, if possible, be destroyed, and he ordered that such writings should not even be admitted to his knowledge nor that of the public; therefore neither the life nor the reputation of any one shall be disturbed and endangered by these con- trivances ; for we decree that all such libels be burned. OF THE 1,AW OF DEFAMATION. 11 Sixth Constitution, to the People: Constitdtio Sexta, ad Pop- ULUM. — " Nemo prorsus de faraosis libellis, qui neque apud me, neque in judicio, uUum obtinent locum, calumniam pati- atur. jSTam et inaocens creditur cui defuit accusator, cum non defuerit inimicus." Translation: Sixth Decree, to the People. — No one, in fine, shall suffer false accusation on account of libels which have no place either before me or in court. For he is even held innocent who has no accuser, though a personal enemy has not been wanting. It would be difficult to pass any judgment on these laws of Constantine which, would not redound to the credit of his hu- manity and experience in the art of government. The purpose of the sixth constitution was to extinguish secret and anonymous libels, but at the same time not to impair those sources of information and charge w^hich were necessary to bring crimes to the notice of the public tribunals, seems to have been the aim of these laws. The laws cannot be duly executed unless a wide door be open to public accusa- tion; and it is the policy of every wise code not to press upon public accusers the heavy responsibility of establishing, under all circumstances, the truth of their charges. The effect of this law of Constantine was to call the libelers into court, to arm them with public accusations, and, by means of a legal inquiry, to administer an immediate remedy to their calumnies. Ninth Constitution: In the Theodosian Code follow two constitutions of Valens, de Fam. libellis: Constitutio Nona. — Imp. Valentinianus, Theodosius, et Arcadius, Cynegio, P. P. " Si quis famosum libellum, sive domi, sive in publico, vel in quocunque loco, ignarus offenderit, aut discerpat priusquam alter inveniat, aut nulli confitetur inventum; nemini denique, si tam curiosus sit, referat, quid legendo cognoverit. Nam quicunque obtulerit inventum, certum est ipsum reum ex lege retinendum, nisi prodiderit auctorem; nee evasurum pcenas hujusmodi criminibus constitutas, si proditus fuerit cuiquam retulisse quod legerit." Translation: Ninth Decree. — If any one shall come un- awares upon a libel, whether at home or in public, or in any place whatever, he shall either tear it to pieces before another 12 A BEIEF HISTOKICAL EEVIEW finds it or confide to no one the fact that he has found it; to no one, finally, if he be so curious, shall he relate what he has learned by reading. For whoever exhibits the thing found, it is certain that he ought to be held as the very culprit accord- ing to law, unless he shall produce the author; nor shall he escape the penalty appointed for such offenses if it shall appear that he related to any one what he has read. Such are the laws against libelers which are contained in the Tbeodosian Code. " It is to be lamented," says Holt, " that many excellent writers have misunderstood these laws, and considered them rather as effects and instruments of despotism than benevolent and salutary provisions for the peace and security of the com- munity. It may be seen almost in every page of the latter Eoman writers, such as Pliny, Tacitus and Seneca, that the courts of the emperors were pestered with a set of men who solicited the imperial favor hy an ostentatious zeal in accus- ing the most eminent characters in Rome. The punishment of the delatores of ITero, in the succeeding reign, is well known. The design, therefore, of most of the laws de libelUs famosis was to prevent secret and ambiguous accusation ; the severity , was pointed against those who found, read or circulated anony- mous charges of crimes; it compelled every man to invest himself with his own accusation, and, to adopt a colloquial expression, to stand forth and prove his words." ' Constitution Concerning Slanders: It would be uncandid to the memory of Theodosius to omit one of his constitutions with respect to a crime of frequent occurrence in the present day. Theodosii Constitutio de Malediotis in Peinoipem, Ejusque Tbmpoea Jactatis. — "Si quis modestise nescius, et pudoris ignarus, improdo, petulantique maledicto, nomina nostra credi- derit lacessenda, ac temulentia turbulentus obtrectator tem- porum fuerit, eum poenae nolumus subjugari, neque durum aliquid, neque asperum sustinere: quoniam, si id ex levitate processerit, contemnendum est; si ex insania miseratione dig- nissimum, si ab injuria remittendum." Tra/ndation: Deceke op Theodosius Conoeefing Slanders Utteeed against a Eulee and His Times.— If anybody, un- acquainted with modesty and ignorant of shame, by false and 1 Holt on Libel, 35. OF THE LAW OF DEFAMATION. 13 wilful slander shall think our name is to be injured, and shall become a rash and troublesome traducer of the times, we do not wish him to be subjected to punishment, nor to suffer any severe or harsh treatment : since if it has proceeded from lev- ity it is to be despised ; if from unsoundness of mind it is most deserving of pity; if from intent to do wrong it is to be for- given. §9. Laws Inflicting Pimisliment upon Libelers. — In the digest many laws are to be found, besides the Cornelian law, or senatus consultum, cited by Ulpian, inflicting punishment upon libelers. The general tenor of these laws seem to be that the truth or falsehood of the charge was everywhere taken. into account. If the subject of the defamation were of a nat- ure which concerned the commonwealth, the libeler was ab- solved if he could prove his accusation before a competent tribunal; a kind of option was allowed him to vindicate his charge by becoming an open accuser. The truth was not in the nature of a defense, or what is called with us justification in law, but it afforded him a refuge behind which to shelter himself, and, as it were, to compromise a breach of the public peace by standing forward to aid the execution of the more important laws of criminal justice. If the defamatory matter respected some vice or infirmit}", moral or natural, or even a crime, pardoned or satisfied by punishment, the defamation, though true, was punished.' § 10. The Institutes of Justinian. — "Injuria autem commit- titur, non solum cum quis pugno pulsatus, aut fustibus csesus, vel etiam verberatus erit; sed et si cui convitium factum fuerit; sive cujus bona, quasi debitorus, qui nihil deberet, possessa fuerint ab eo, qui intelligebat, nihil eum sibi debere; vel si quis ad infamiam alicujus libellum aut carmen — aut histo- riara — scripserit, composuerit, ediderit, dolove malo fecerit, quo quid eorum fierit; sive quis matrem familias aut pretex- tatum pretextatamve, absectatus fuerit; sive cujus pudicitia at, tentata essedicetur: et denique, aliis plurimis modis admitti injuriam, manifestum est." Translation: An injury may be done not only by beating and wounding, but also by slanderous language, by seizing the o-oods of a man, as if he were a debtor, when the person who 1 Holt on Libel, 33. 14 A BKIEF HISTOEIOAL EEVIBW seized them well knew that nothing was due him ; by writing a defamatory libel, poem or history ; or by maliciously causing another so to do; also by continually soliciting* the chastity of a boy, girl or woman of reputation, and by various other means too numerous to be specified.^ Justinian has classed libels and defamations among private injuries of the highest degree. § 11. Edict of Yaleiitinian and Yalens. — In his collection of the Koman laws, the most perfect form which the civil law assumed, the constitutions of Constantino de famosis Uhellis Avere severed from the corpus juris oivilis. But in the 9th book of the code, title 36, the following edict of the emperors Valentinian and Yalens is incorporated with the laws of Jus- tinian: " Si quis famosum libellum, sive domo, sive in publico : vel in quocunqueloco, ignarus repererit, aut corrumpat prius quam al- ter inveniat, aut nuUi confiteatur inventum. Si vero non statim easdem chartulas corruperit, vel igne consumpserit, sed earum vim raanifestaverit, Sciat se, quod auctorem hujusmodi delicti capital! sententise subjugandum. Sane, si quis devotionis suae, ac salutis publicse custodian gerat, nomen suum profiteatur, et quEe per famosum libellum persequenda putaverit, ore proprio edicat, ita ut absque uUa trepidatione accedat, sciens quidera quod si adsertionibus suis veri fides fuerit opitulata, laudem maximam et prsemium a nostra dementia consequetur; sin vero ninime vera obstenderit, capital! poena plectetur." Translation: If any one shall unwittingly discover a libel, whether at home or in public, or in any place whatever, either let him destroy it before any one else finds it, or let him con- fide to no one the fact that he found it. But if he does not immediately destroy said writings or consume them by fire, but shall make known their purport, let him know that he himself will be subject to capital sentence as the author of such offense. Certainly, if any one has regard for his own welfare and the public safety, let him declare his name and say from his own mouth what he thinks was sought after by the libel, so that he may come without any fear, knowing in- deed that if by his declarations faith in the truth shall be pro- moted, he shall obtain the greatest praise and reward from 'Justinian Inst., lib. IV, tit. 4; Cooper's Justinian, 319. OF THE LAW OF DEFAMATION. 15 our clemency; but if he shall concecal the truth in the least re- spect, he shall be punished by death. The term famosis lihellis was almost exclusively given to that species of libel which affected the credit or tranquillity of the commonwealth. The design of this constitution, there- fore, was to bring forward public accusers, and to destroy those ambulatory libels, or rather menaces, Avhich injured the peace of families, and were probably the means of extortion amongst the delatores. This species of libel rather corre- sponded with the offense known in our laws by the title of threatening letters or threats to extort money. The severity against this species of libel must not be confounded with the civil law of libel understood according to the term of libel amongst us. This was not the famosum carmen or soripta injufia. It was that kind of crime which every community has justly considered as constituting a capital offense.^ With respect to ordinary libels and contumelious words, the proceeding in the age of Justinian was either matter of public prosecution or private action. The laws of the Twelve Tables, and most of the senatus consulta de injuriis, were now become obsolete. The plaintiffs recovered in proportion to the meas- ure of their injuries; and, according to Justinian, "secundum gradum dignitatis, vitseque honestatem, crescit aut minuitur aestimatio injurise." ^ § 12. The Difflcnlties of the Civil Law.— There is great difficulty in examining any branch of the civil law. ISTotwith- standing the care of Justinian, there is scarcely a title in the Pandects in which one positive and unalterable rule of judg- ment is laid down. The subject, and every possible circum- stance of it, are foreseen and provided for with a wonderful sagacity; but the rule has so many qualifications and so many exceptions that the title becomes rather a dissertation upon laws than a rule of practical justice. It is obviously impos- sible for any human foresight to follow the infinitely possible combinations of human actions. This possible variety is in fact a genus, of M'hich all the species must be individuals. Hence, the voluminous code of our own Jaws and of every free state. The Koman lawyers, endeavoring at the same perfec- tion, and having greater obstacles to encounter in the uncir- 1 Holt on Libel, 27. 2 Just. Inst., lib. IV, tit. 4. 16 A BEIEF HISTOKICAL REVIEW oumscribed power of the prince, have expanded their collection to the same magnitude. They honestly endeavored to foresee and provide for everything, in order that in everything they might have a rule to oppose to the will or interpretation of the prince.^ §13. The Roman Law of Libel. — In Eoman law there are many instances given in which a man's reputation was as- sailed, not by words, but by acts. For example: (i) By refusing to accept a solvent person as surety for a debt, intending thereby to impute that he is insolvent. (D., 2, 8, 5, 1.) (ii) By claiming a debt that is not due, or seizing a man's goods for a fictitious debt, with intent to injure his credit. (Gai., Ill, 220; Just. Inst., IV, iv, 1; D., 47, 10, 15, 33.) (iii) By claiming a person as your slave, knowing him to be free. (D., 47, 10, 12, 22.) (iv) By forcing your way into the house of another. (D., 47, 10, 23, 44.) (v) By persistently following about a matron or young girl respectably dressed, such constant pursuit being an imputation on their chastity. (Gai., Ill, 220; Just. Inst., IV, iv, 1; D.,47, 10, 15, 15-22.) (vi) By needlessly fleeing for refuge to the statue of the emperor, thereby making it appear that some one was unlaw- fully oppressing you. (D., 48, 16, 28, 7.) Though it is difficult to see in this case how it was determined who was the right plaintiff.^ The law of libel varied in Eome with the government. This law, under the Decemviri and Sylla, we have already ex- plained. After the death of Sylla, Julius Csesar seems to have engrafted upon the laws Iwsoe majestatis some of the laws of Sylla relating to the defamation of public authorities. Satire, however, was not much checked till the conclusion of the reign of Augustus, who restrained it for the sake of some favorites. When libels became once more a part of the crime Imsm majestatis they ceased to have the accuracy of any distinct offense. Thus, Cremutius Cordus, in the reign of Tiberius, was condemned for having called Cassius the last of the Ko- mans. During the reign of the latter emperors libelers were 1 Holt on Libel, 36. i^Odgers on L. & S., 14. OF THE I- AW OF DEFAMATION. l7 occasionally restrained by severe punishment or tolerated by the indolent clemency of the prince. Under Titus almost all libelers were exempt from punishments; that is to say, they were no longer exposed to the penalties ImscB majestatis. Under Domitian they were hunted down; but they revived under JS'erva and the Antonines. Constantine pursued them with vigor, and under the masir of a war against libelers waged a persecution against a religious sect — the Donatists. Yalens and Valentinian considered libelers to be more odious than hordes of barbarians. Theodosius, with a magnanimity more to be praised than imitated, held them in contempt. Under the latter emperors the injuries of reputation, like all other injuries, had a more precise rule of estimation. In cases of scandal, or libels not imputing capital crimes, the praetor gave damages according to the quality of the injury and the dignity of the person injured; and, unless the charge were of that kind which the state had an interest in punish- ing, the truth was no vindication. At the same time it was competent to the offender to negative the imputation of malice.* The Eoman law had at least the merit of simplicity. By it an intention to injure the plaintiff was essential to the action for the injury.' It never presumed malice; the plaintiff had to prove that the defendant expressly intended to impair his good name. For example, if an astrologer or soothsayer, in the hona fide practice of his art, denounced A. as a thief when he was an honest man, A. had no action ; for the astrolo- ger had only committed an honest mistake. But it would be otherwise if the soothsayer had not really believed in his art, but had pretended, after some jugglery, to arrive at A.'s name from motives of private enmity.' That being so, unless there was some evidence of malice the plaintiff was in every case nonsuited. On express malice proved the plaintiff recovered. Even the fact that the libel was contained in a petition sent to the emperor was no protection.'' If a prefect or other offi- cial in the course of his duty charged a man with crime, he was not liable to an action if he did so in the belief that the charge was true, and without any malicious intention of pub- 1 Gomes. 3, resol. 6, n. 3; Myua 4, ^D., 47, 10, 3, 3 and 4 ODS. 4; Gail. 8, obs. 99; Covarr. 1, sd., 47, 10, 15, 13. resol. 11, n. 6 and 7. * D., 47, 10, 15, 29. S 18 A BRIEF HISTOBIOAL REVIEW licly defaming the man; but if, in a sudden quarrel, he made the charge in the heat of the moment, and without any ground for the accusation, then he would be liable to an action when his term of oiHce had expired.' The adversaries in litigation were of cours& allowed great latitude — a certain amount of mutual defamation being essential to the conduct of the case, and so not malicious; but even here moderation had to be ob- served.^ THE LAW OP ENGLAND. § 14. Ruins of the Roman Law. — It would be impossible to trace any particular usage or part of the common law of Eng- land to. its original source, and, even if it were possible to do so, it would serve but little purpose. . It is sufficient to say that the ruins of the civil law and the Eoraan system have furnished the bulk of the materials out of which nearly all the codes of modern Europe have been formed. The customs of the ancient Britons were engrafted en the Koman law, and perhaps the original energy of that code was in some degree restored by the vigor of the new stock. The Koman law, as is well known, was at onetime administered in England under the most celebrated of Eoman lawyers. It was one of the maxims of Roman policy to admit the laws of all conquered nations, and to change only so much of tl;e an- cient usages as might be inconsistent with their own national code. §15. Under Alfred and Edgar. — Before the Conquest the common law had settled into a compendious system. It is reasonable to believe that Alfred had accomplished such a mixture of the rules and principles of the civil law as was adapted to the manners of his age with such of the Saxon usages which, though issuing from the woods of the north, had the stamp of a noble freedom. Researches, likewise, give every reason to suppose that the piety of Alfred induced him to in- corporate in his code much of the divine law, and to correct the moral law as given to the Jews by the more perfect char- ity of the Christian system.' A persuasion of this kind, per- . I Rescript to Victorinus, A. D. 290 ; 3 Min-or. , 301 ; Selden on Law and Krueger's Codex, ed. 1877, p. 855. Gov., 5th ed., 60. 2 Pauli Sent. V, iv, 15. OF THE LAW OF DEFAMATION. 19 haps, induced Coke to declare, and Sir Matthew Hale to repeat, that Christianity was part of the common law of England.^ The laws took very early notice of slander as an injury to the individual and an offense against the public peace. Libel, the more enlarged form of the abuse of speech, was scarcely noticed, because in a rude and unlettered age it was scarcely known ; as, indeed, it could not be the crime of an illiterate people. King Alfred commanded that the forger of slander should have his tongue cut out, unless he redeemed it by the price of his head. " Si quis publicum mendacium confingat, et ille in eo firmetur, nulla levi re hoc emendet, sed lingua ei excidatur, nee minori pretio redimi liceat, quam juxta capitis aestima- tione." ^ There is a law of Edgar to the same purpose,' and Canutus, the Dane, re-established the laws of Alfred and Edgar with the same severity. " Et si quis alterum injuria dififamare velit, ut alterutum vel pecunia vel vita ei diminuatur, si tunc alter earn refellere possit, perdat linguam suam, nisi illam capitis sestimatione redimere velit." * In cases of this kind it was perhaps expected that the subject of the slander should be false ; and as few could Write and not many read, the offense which is formally called libel must have been rare. § 16. ijnder the Norman Kings — Bracton. — In the ad- ministration of criminal justice, a mildness borrowed from the civil law superseded the former Gothic barbarity with respect to punishments. Bracton, who wrote in the reign of Henry III., repeats the rule and language of the common law as marking off the offense of libel, assigning it, however, that rank in the class of injuries which it maintains to this day. The words of Bracton are nearly the same as those of Justinian in his Insti- tutes: " Fit autem injuria, non solum cum quis pugno percussus 'Slnst., 220; Ventris, 393; Holton 'Lamb, Sax. Laws, 64, pi. 4, Libel, 32. Wilkins Ac. 2Wilk. Leg. Ang. Sax., 41, pi. 28; < Wilk. Leg. Ang.-Sax., 136, pi. 15; Lamb. Sax. Laws, 29, pi. 28; Mir- Lamb. Sax. Laws, 110, pi, 15. ro?., 801; Selden, Discourse on Law and Gtov., 5tb ed., 60. 20 A BRIEF HISTOEICAL JEEVIBW fuerit, verberatus, vulneratus, vel fustibus csesus, verum cum ^i convitium dictum, fuerit, vel de eo factum carmen famosum, et hujusraodi."' Though this be the language of the civil law, and is recorded by Bracton as the received common law of England at his time, Sir Matthew Hale says of him as an authority: "The book itself in the beginning seems to borrow its method from the civil law. But the greatest part of the substance is either of the course of proceedings in the law known to the author, or of resolutions and decisions in the courts of king's bench and common bench, and before justices itinerant." ^ § 17. In the Tear Books. — There is not much to be found in the j'^ear books and the ancient reporters with regard to libels, as it was not till the invention of printing that the offense could become common. The action of slander, which is the same in principle, makes an earlier appearance; but no action for scandalous Words appears to have been brought be- fore the reign of Edward III. ; and so rare was this action even then, that we find but one in the whole reign of that prince. There were but three actions for words in the twenty-two years of Edward lY. ; one only in the reign of Henry VII. In the long reign of Henry VIII. there were but five. But in the time of Elizabeth, as learning increased, they began to multiply. We find in Coke's Keports, volume i, seventeen ad- judged cases on this subject.' The people of England in that age were a military people. The ofiices of the law were in a great measure superseded by the imagined obligations of chivalry. It was a point of honor with every one to be sufficient for his own defense, and to as- sert and avenge his honor and personal rights by his sword. § 18. The Statute of Westminster.— The first notice which the statute law takes of the offense of slander after, the time of Bracton is by the statute of Westminster 1st. The reason of this act is stated in the preamble: "Forasmuch as there have been oftentimes found in the country devisers of tales, whereby discord, or occasion of discord, hath many times arisen between the king and his people or great men of the realm, as had lately been experienced in the reign of Henry » Bracton, fol. 155. s March. Act for Sland., 4. i Hist, of Com. Law, vol. 1, p. 270. OF THE LAW OF DEFAMATION. 21 III., therefore it was commanded that from henceforth no one be-so hardy as to tell or publish any false news or tales whereby discord, or occasion of discord or slander, may grow between the king and his people or the great men of the realm; and whoever does so shall be taken up and kept in prison until he has brought into court the first author of the tale." This, from the nature of the thing, became the severest punishment that could well be devised, as it might amount to perpetual im- prisonment. § 19. The Statutes of Richard II.— The next statute is that of the 7th Eichard II., de scandalis magnatum. The two statutes against the spreaders of false rumors are said to have been procured by the Duke of Lancaster, who was in little favor with the people, and, at the time of the insur- rections among the Villains, had been distinguished as a prin- cipal object of their fury. The first of these is Stat. 2 Eichard II., Stat. 1, ch. 5. The design of this act will be best under- stood from the preamble : " Of the devisers of false news, and of horrible and false lies of prelates, dukes, earls and barons, and other nobles and great men of the realm, and also of the chancellor, treasurer, clerk of the privy seal, steward of the king's house, justices of the one bench or of the other, and of other great oflicers of the realm, or of the things which by the said persons were never spoken or done or thought, in great slander of them, and whereby debates or discord might arise betwixt them, or between them and the commons, and great mischief to the realm." These were the objects meant to be aimed at by this statute, and it was enacted that none under grievous pain be so hardy as to devise, speak or tell any false news, lies or other false things of the above- mentioned persons, whereof discord or slander might arise within the realm. ^ Those who offended therein were to be liable to the statute of Westm., 1st, above mentioned, which directs such offender to be taken and imprisoned till he has found the person by whom the speech was moved; but this not being likely to pro- duce the effect intended, it was enacted by statute 12 Eich. II., ch. 11, that, should he not be able to find such person, he should 1 Vide Black., vol. IV, 148, in notes; Holt on Libel, 35. 22 A BEIEF HISTOEICAL EEVIEW be punished by advice of the council, notwithstanding the statutes. The occasion of the act de Scan. Mag. is mentioned in Cot- ton's Abridgment of the Eecords of the Tower.» The design of the act was to prevent those imminent dangers which might be occasioned by false slanders of the peers and great officers of the kingdom. The parts of the act are three: first, reciting the offense and mischief, designating the evil effects, and ap- pointing a penalty. In substance this statute creates no new offense, and prohibits nothing but what was prohibited by the common law before ; but, in respect to the dignity of the per- sons for whose protection it was made, it comprehends within its penalties the less offensive modes and terms of slander, of which the common law took no specific cognizance, and marks out a new proceeding to redress them. The offenses to be punished by this act are mala in se, and against the moral law. The scope of the act, therefore, was not only to punish such things as import a great scandal in themselves, or such for which an action lay at the common law, but also such reports as were anywise contemptuous towards the persons of peers and the great men of the realm, and brought them into dis- grace with the commons. Secondly, the statute inflicts no new punishment on the offender; for, at the common law, any per- son for such offenses as are therein described might have been fined and imprisoned, either upon indictment or information brought against him, and no other punishment is given by the statute but imprisonment. Even at the common law, scandal of a peer might be punished by pillory and imprisonment.^ Thirdly, it appears that scandalum magnatum, as all other slander, was an offense at common law, but aggravated, in the estimation of the peerage, by an act of parliament, which obliges the plaintiff now, upon the statute, to prosecute tain pro domuio rege quam pro seipso, which he could not do at the common law.' In the early cases it has been held that if an action of scandalum magnatum be brought upon this statute, the defend- ant cannot justify; because it is brought qui tarn, etc., and the iCott., fol. 173, num. 9, 10, and 3 Coke, 125; 13 Coke, 37; 7 Coke, 59; Mod., 181. Lamb's Case. SAtkyn's Just., 3 Mod., 162; 5 3 Holt on Libel, 37. OF THE LAW OF DEFAMATION. 23 king is concerned. But the defendant might explain the words, and insist upon some circumstance from the occasion of speak- ing them. But the rule was inflexible that if true they could not be published, because the statute was to prevent discords.' § 20. Litoels of the Star Chamber. — The court of star chamber was a kind of court of equity administering criminal justice, abhorrent from the principles of the constitution in its form, but, when honestly administered, a most useful subsid- iary irregularity'-. So much of chivalry still remained in its time that the authority and connections of the nobles were too powerful for the ordinary course of the law. But in the high dignity of this court the most elevated offender found his peer. In its records the earliest cases of libel are to be found.- Holt denominates the star chamber a court of criminal equity, and, acting in this character, he says " it gave a body and distinct shape to what previously existed in fainter lines perhaps, and more in principle than in received practice in the common law." The popular writers have taken their character of this court rather from its abuses in violent times than from the course of its ordinary practice in the tranquil periods of English history. It has been condemned from its contradiction to abstract prin- ciples, and from a defective knowledge of its effects and mis- chiefs. In wanting juries it appeared to want everything. "We are apt to forget that, in the infinite variety of human means and actions, a movement is sometimes best procured by oblique forces; and that an instrument of despotism may be made auxiliary even to the best purposes of liberty of this court.' Perhaps it is unfair to form our judgment upon the acts of former times on the principles and practices of the present age. Xothing would be so odious as a star chamber under our pres- ent system of judges and juries. But might there not have been some period of the history of the human race in which the superior learning of the high oflBcers of church and state, and the collected authority and splendor of the nobles immedi- ately attached to the court of a king, were a better safeguard for the public peace than the juries of a barbarous age, or their independence at a time when every peer was the sovereign of iFreem., 231; Poph., 67; Lord 2 Holt on Libel, 38. Eaym., 879; 4 Bao. Abridg., 408; 3 Coke's 4th Inst, 65, ch. 5. BuU, N, P., 2. 24 A BEIEF HISTORICAL EEVIEW his vicinage? Be that as it may, this court has still, after the lapse of centuries, a most unsavory reputation. In that part of the Institutes in which Coke treats of the star chamber, he says that the main cognizance of the offense of libel was taken almost into the particular keeping of that court as the heinous- ness of the crime, and the peculiar contumacy of the offenders seemed to require a tribunal of more than common dignity. The punishments of this court, he says, were likewise adapted to the mischief of the offense, being imprisonment, pillory, fine, whipping, loss of ears and brands in the face.^ But we must avoid falling into an erroneous opinion, too prevalent with some writers, that the star chamber was the inventor of this legal notion of libel, and that, by a kind of forced construction in the nature of an equitable fiction, it appended it to the reason of the common law. The star chamber grounded, in pretext at least, all its right and authority in the common law. It ex- ercised its jurisdiction in libels as a part of that common law. It assisted and concurred with the other courts of the king in administering the law upon this offense.^ It is scarcely neces- sary to produce instances of the concurrent cognizance of the common law over the offense of libel. The commissions of oyer and terminer, almost as old as our statute law, give au- thority to inquire de illicitis verborum propalationihus? It is therefore an error to give the star chamber the merit or demerit of the present notion of libel. The star chamber adopted only the language and notions of the common law. The usurpation of that court was, in fact, a usurpation of juris- diction, not of law. While this court was in the fullness of its authority the courts of common law never failed to take cognizance of any cases of libel and scandal that came before them. Lord Coke enu- merates offenders sentenced by the common-law courts to fine and imprisonment for libel and slander. It is the purpose of another part of this work to inquire what is and what is not a libel. Like every other general of- fense the nature of which lies in description and not in defini- tion, it has been variously construed in various times; being a mere legal reason, and therefore variable not only according 1 Holt on Libel, 40. 3 Queen v. Langley, 3 Ld. Raymond, 2 Coke's 3d Inst., 230. 1060; 13 Coke Reps., 13; 3d Inst., 338. OF THE LAW OF DEFAMATION. 25 to all the circumstances of the times, but according to the abil- ities and information of the judges. In ignorant and despotic times it had not the same limits and precision as in the days of liberty and science. It is unreasonable to object to our pres- ent tempered and corrected notion of libel that, in another form, it was at one time an instrument of tyranny and extor- tion in the star chamber. §21. Justices of the Peace. — In the constitution of the more subordinate office of justice of the peace the law did not omit to give them charge over scandal and libel; and,^ b}' the express words of their commission, gives them power to hear and determine the offense of libel.^ Lord Mansfield says that libels are contained within the commissions of the justices of the peace. § 22. The Rights of Personal Security Include those of Reputation. — It is a maxim of the common law that there is no right without a legal remedy. The comprehensive remedy of the action on the case in civil injuries, and indictment in wrongs of a public nature, founded on principles of common law and justice, is every day applied in cases of private fraud and misdemeanors. It is no objection that the act never oc- curred before. The law is presumed to have willed it in prin- ciple if not in the individual case; to have willed it in the end if not in the means. The wise provision of the Stat. West. 2, cap. 2i, for the writ of casu consimili is founded upon this principle with respect to civil injuries prima im-pressionis. Whatever be the mode of wrong, a remedy shall go forth to correct it. This is one of the glories of the English law. So with offenses which concern the public. Whatever is indecent, whatever has a tendency to disturb the peace and tranquiUity of the community, whatever is of evil example or contagious disorder, whatever is contra honos mores, civis, si non hominis, is comprehended within the large reason and remedy of the common law, the objects of which are the well-being and due peace and order of the family of the state. § 23. Concluding Remarks.— We have shown the law against defamation to have extended centuries back ; and, as • 34 Edw. m., ch. 1. Lev., 139 ; 1 Sid., 271 ; 2 Wills., 160 ; 2 2 Hawk. P. C, vol. 2, ch. S, 60; 1 King v. Ripsal, 1 Black. Rep., 868. 26 A BEIEF HISTOEICAL REVIEW there is nothing to contradict, but everything to confirm it, the law will suppose it time immemorial. The main effective mode of libeling (writing) is certainly immemorial, and writ- ing no sooner commenced than the abuse grew up with it; and therefore in legal intendment, as explained by constant practice, the law to restrain it. "We have the same authority for the law of libel that we have for the most important maxims of the common law, whether relating to our liberties or property. A succession of precedents, beginning in distant a^es, forms the common law. They prove the law not only by the practice, but by the acknowledgment and submission implied in the uniformity of such practice. Doubtless it is the reason of a precedent, and not the precedent itself, which obliges; but when precedents for the punishments of a partic- ular offense are found in numbers, and in all seasons of the constitutions, their reasonableness and conformity with the rule of the common law are to be deemed, as it were, written in their constancy, and ought not to be captiously questioned or put to their vindication. The law of defamation, as we have shown, is likewise to be collected from ancient text-writ- ers, whose works are to be regarded as authority, not only as containing the rule of the common law derived from records and adjudged cases, but as embodying those traditions and usages of which no records now exist.' AMERICAN LAW OF DEFAMATION. § 24. The History of the American Law of Defamation must always be identical with the English law. But few cases of special interest to the reader are found in the earlier books. The first case of newspaper libel adjudicated in the colonial courts .was that of The King v. Zenger, tried at New York in August, 1735. Zenger, who was a German, had established a newspaper called the "Weekly Journal" in opposition to the " Gazette," the government organ, and the only other paper in the colony. His paper, the " Journal," contained frequent and somewhat severe attacks upon the administration of the colo- nial government and the governor, William Crosby. The grand jury refused to return indictments against the offending 1 Holt on Libel, 44. OF THE LAW OF DEFAMATION. 27 editor. But the attorney-general exhibited an information charging him with criminal libel. One of the articles upon which the information was predicated was the following: " The people of this city and province think, as matters now stand, that their liberties and properties are precarious, and that slavery is likely to be entailed on them and their posterity if some past things be not amended." Another one of the offensive articles, quoting frbm a man who had removed from New York to Philadelphia, was as follows : " We see men's deeds destroyed, judges arbitrarily displaced, new courts erected without the consent of the legislature — by which, it seems to me, trials by juries are taken away when a governor pleases; men of known estates denied their votes contrary to the received practice, the best expositor of anj' law. Who is there in that province that can call anything his own, or enjoy anj' liberty longer than those in the administra- tion will condescend to let them doit? — for which reason I left it, as I believe more will." In default of bail Zenger was committed to the common jail, where he remained eight months awaiting his trial. The colonial council ordered the papers containing the offensive articles to be burned by the common hangman. At the trial Zenger, having employed as his counsel James Alexander and William Smith, entered upon a vigorous defense. An excep- tion was taken by them to the legality of the commissions under which the judges held their office; but the court refused to entertain the exception or to listen to any argument upon it, and ordered the names of the excepting counsel to be stricken from the rolls of attorneys. Andrew Hamilton, a famous lawyer of Philadelphia, was then engaged for the de- fense, and the trial proceeded. By the rule of the common law evidence of the truth of the alleged libels could not be admitted ; and, as the defendant could not deny the publica- tion, no witnesses were produced in his behalf. The object of the court appears to have been to induce the jury to return a special verdict finding the defendant guilty of publishing the articles; leaving the question as to whether or not they were libelous to the court; but the jury, after listening to the able and fearless arguments of Mr. Hamilton, in which he ap- 28 A BEIEF HISTOEICAL EEVIEW pealed to them to be the .witnesses of the truth of the charges which the defendant had been denied the privilege of prov- ing, disregarded the direction of the court and returned a gen- eral verdict of not guilty, leaving nothing for the court to do but to discharge the prisoner.^ In speaking of the effect of this verdict, Merrill, in his hand-booii for the press on news- paper libel, says: "The verdict was received by the specta- tors in the court room with cheers. The chief justice warned them to be silent, but the cheers were vigorously renewed. The able attorney who had served without fee was given an entertainment, and the common council presented him with the freedom of the city for ' the remarkable service done by him to the city and colony by his learning and generous de- fense of the rights of mankind and the liberty of the press.' When he started on his return to Philadelphia, a salute was fired in his honor on the banks of the Hudson."^ The result of the case, according to Gouverneur Morris, was the dawn of that liberty which afterwards revolutionized America.^ § 25. An Early Colonial Statute enacted May 14, 1645, ap- pears upon the records of the colony of Massachusetts Bay, in the following terms : " It is therefore ordered, y* every p.son of y° age of discretion w'^'' is accounted 14 yeares, who shall wittingly & willingly, make or publish any lye w"" may be p.nicious to y* publicke "weale, or tending to y^ damage or injury of any p.ticul"" p.son or w"" intent to deceive & abuse y® people by false newes or reports & y® same, duely p.ved in any co't or before any one jj^^trate (vyho hath hereby pow' granted to heare & determine all offenses against y^ lawe) such p.son shalbe punished after y° manner : For y" first offence 10', or, if y« p.ty be unable to pay y® same, then to sit so long in y^ stocks as y^ said co't or magistrate shall appoint not exceeding two houres; for y'= second offence, whereof any shalbe legally convicted y" sume of 20^ or, if y p.ty be unable to pay, y" to be whiped upon y'= naked body not exceed^ ten stripes." * In Wew Hampshire a provincial statute, enacted in 1701, provided that if any person of the age of fourteen years or upwards should wittingly or willingly make or publish any 1 Chandler's Am. Crim. Trials, 305. ^ Hudson's Journalism in U. S., 81. « Merrill's Newspaper Libel, 17. * MerriU's Newspaper Libel, 11.' OF THE LAW OF DEFAMATION. 29 lie or libel tending to the defamation or damage of any par- ticular person, or make or spread any false news or reports, with intent to abuse and deceive others, such person should, on conviction before one or more justices of the peace, be fined, according to the degree of the offense, not exceeding twenty shillings for the first offense, and find sureties for his good behavior.^ 1 Prov. Laws N. H., 17; State v. Burnham, 9 N, H., 40. CHAPTEE 11. EARLY ENGLISH AUTHORITIES. § 1. Early English Authorities, 3. The Subject Illustrated. § 1. The Earlier English Authorities upon the Law of Def- amation. — In the examination of the cases upon the law of defamation to be found in the older English reports, some care must be taken to ascertain the state of the criminal law under which the decisions were rendered. § 2. The Subject Illustrated.— For example: We find it was held in 1602 that no action lay for saying " Master Barnham did burn my barn with his own hands ; " for at that date it was not felony to burn a barn unless it were either full of com or par- cel of a mansion-house ; and defendant had not stated that his barn was either. Barnham's Case, 4 Rep., 20; Yelv., 21. And in 1602 it was held, not actionable to say: "Thou hast received stolen swine, and thou kno west they were stolen ; " for receiving is not a common- law oSehse, unless it amounts to comforting and assisting the felon as an accessory after the fact. But since 3 Wm. & Mary, ch, 9, sec, 4, and 4 Geo. I., oh. 11, such words are clearly actionable. Dawes v. Bolton or Bough- ton, Cro. Eliz., 888; 1 Roll. Abr., 68; Cox v. Humphrey, Cro. Eliz., 889; OdgersonL. &S., 60. In Queen Elizabeth's time it was held that no action lay for saying " He keeps a bawdy-house ; " " for by the common law he is not punishable, but by the custom of London ; and therefore this action ought to have been sued in the spiritual court." (Glanvile dissenting.) Anon, (1598), Cro. Eliz,, 643; Noy, 73. But by 1606 the opinion of Glanvile prevailed, and such words were held actionable; "the keeping of a brothel-house is inquirable in the leet, and so a temporal offense." Thorne v. Alice Durham (1606), Noy, 117; Grove and wife v. Hart (1752), Sayer, 33; B. N. P., 7. In many earlier oases such words as " She is, a witch" were held action- able, the statutes 1 Jao. I., ch. 11, being then in force. But that statute is now repealed by the 9 Geo. XL, ch. 5, sec. 8; which also expressly provides that no action shall He for charging another with witchcraft, sorcery or any such offense. Rogers v. Gravat, Cro. Eliz., 571 ; Daoy v. Clinch, Sid., 58. So long as the penal statutes against Roman Catholics were In force it was actionable to say "He goes to mass," or " He harbored his son know- ing him to be a Romish priest." Walden v, Mitchell, S Ventr., 265; Smith v. Flynt, Cro. Jao., 800. EAIJLY ENGLISH AUTHOEITIES. 31 And so long as the 18 Eliz., ch. 3, was in force, it was actionable to cliarge a woman with being the mother, a man with being the putative father, of a bastard child, chargeable to the parish, Anne Davis' Case, 4 Rep. , 17 ; 3 Salk., 694; 1 RoU. Abr., 88; Salter v. Browne, Cro. Car., 436; 1 Roll. Abr., 37. It was not apparently clear law till the present century (E. v, Higgins (1801), 2 East, 5 ; E. V. Phillips (1805), 6 East, 464) that it was a misdemeanor to solicit another to commit a crime, although the person solicited did noth- ing in consequence. Hence, in the following cases, words were held not to be actionable, because no overt act was alleged to have followed the solic- itation. They would be held actionable now. Sir Edward Bray v. Andrews (1564), Moore, 63; Eaton v. Allen (1599), 4 Rep., 16; Cro. Eliz., 684; Sir Har- bert Crofts v. Brown (1617), 3 Buls., 167. It was formerly the custom of the city of London, of the borough of Southwark, and also, it is said, of the city of Bristol, to cart whores. Hence, to call a woman a " whore" or " strumpet" in one of those cities is actionable, if the action be brought in the city courts, which take notice of their own customs without proof. But no action will lie in the superior courts at Westminster for such words, because such custom has never been certified by the recorder, and would now be difiScult to prove. Oxford et ux. V. Cross (1599), 4 Rep., 18; Hassell v. Capcot (1639), 1 Vin. Abr., 395 ; 1 RoU. Abr., 36; Cook v. Wingfield, 1 Str., 555; Roberts v. Herbert, Sid.', 97; 1 Keble, 418; Stainton et ux. v. Jones, 2 Selw. N. P., 1205 (13th ed.); 1 Dougl., 380, n. ; Theyer v. Eastwiok, 4 Burr., 2032; Brand and wife v. Roberts and wife, 4 Burr., 2418; Vicars v. Worth, 1 Str., 471; Odgers on L. & S., 61. CHAPTEE III. THE AMERICAN LAW OF DEFAMATION. § 1. Defamation Defined and Classified — Written Defamation, Libel — Oral Defamation, Slander — But Different Methods of Accomplish- ing the Same Wrong. 3. Libel — Definitions — Discussion of the Subject. 3. Other Definitions — Addison, Bentham, Chief Justice Booth, Brit- ish Encyclopedia, Blatchford, J., Bouvier, Cape! Loft, Sir Edward Coke, Justice Daniel, Alexander Hamilton, Sargeant Hawkins, Hillard, Holt on Libel, Lord C. J. Holt, Minshsei, Chief Justice Parsons, Russell on Crimes, Sell's Dictionary of the World's Press, Judge Story — Conclusion. 4. Slander Defined — The Lexicographers : Bouvier's Law Dictionary — Nature of the Accusation — The Falsity of the Charge — The Mode of Publication — The Occasion — The Malice or Motive. Definitions : Bacon's Abridgment, Jacob's Law Dictionary, Abbott's Law Dic- tionary, Rapalje and Lawrence's Law Dictionary, Brown, !Burrill, Wharton, Tomlin. Slander Defined — The Commentators: Blackstone, Hillard, Kent — Conclusion. 5. Slanderous Words Classified. 1. Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and pun- ished. 2. Words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society. 8. Defamatory words falsely spoken of a person which impute to the party unfitness to perform the duties of an office or an em- ployment of profit, or the want of integrity in the discharge of the duties of such an oflice or employment. 4. Defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade. 6. Defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party special damage. § 1. Defamation Defined and Classified.— By defamation is understood a false publication calculated to bring a person into disrepute. By the common law it has been divided into two classes: (1) Written Defamation — Libel. (2) Oral Def- amation — Slander. THE AMEEICAN LAW OF DEFAMATION. 33 (1) Lilel is defamation published by means of writing, print- ing pictures, images or anything that is the object of sight. (2) Slander is defamation without legal excuse, published orally, by words spoken, being the object of the sense of hear- ing. Both libel and slander are but- different methods of ac- complishing the same wrong, differing mainly in the manner of publication.' § 2. (1) Libel— Definition— Discussion of the Subject.— A malicious defamation of any person by printing, writing, signs or pictures tending to blacken the memory of the dead, with intent to provoke the living, or injure the reputation of the living, provoke him to wrath or expose him to hatred, con- tempt or ridicule, is the definition given by Judge Peters in the case of The State v. Avery ,^ in a prosecution for the criminal offense by indictment. In a civil action for damages the same judge laid down in substantially the same language the following definition : " A libel is a malicious defamation, ex- pressed in print or writing, or by signs or pictures tending to blacken the memory of the dead, with an intent to provoke the living, or to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule.' In Vermont it has been defined as a publication which renders a person ridiculous merely, and exposes him to contempt, which tends to render his situation in society uncomfortable and irksome, which reflects a moral turpitude on the party and holds him up as a dishonest and mischievous member of society, and describes him in a scurrilous and ignominious point of view, which tends to impair his standing in society as a man of rectitude and principle, or unfit for the society and intercourse of honest and honorable men.* In Delaware, after an elaborate discussion, it was decided that written slan- der to be actionable must impute something which tends to disgrace a man, lower him in or exclude him from society or bring him into contempt or ridicule; and that the court must be able to say from the publication itself, or such explanations as it may admit of, that 4t does contain such an imputation and has legally such a tendency ; but mere general abuse and 1 Cooley on Torts, 1st ed., 193. ' Hillhouse v. Dunning, 6 Conn., 2 7 Conn., 367. 407. * Colby V. Reynolds, 6 Vermont, 489. 3 34 THE AMERICAN LAW OF DEFAMATION. scurrility, however ill-natured and vexatious, is no more action- able when written than spoken, if it does not convey a degrad- ing charge or imputation. ' In referring to this case Chief justice Booth held a libel to be a malicious publication in printing, writing, signs and pictures imputing to another some- thing which has a tendency to injure his reputation, to disgrace or degrade him in society, lower him in the esteem and opinion of the world, or bring him into public hatred, contempt or ridi- cule.^ By the criminal code of Illinois a libel is defined to be a malicious defamation, expressed either by printing or by signs or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule or financial injury.' § 3. Other Definitions. — Addison: "AH publications injurious to private character or credit of another are libelous." * American Encyclopedia: "A libel is any published defama- tion." Bentliam (?): "A libel is anything of which any one thinks proper to complain." ^ " A libel is anything published upon any matter of anybody which any one was pleased to dislike." Blatchford, J.: A publication, to be a libel, must tend to in- jure the plaintiff's reputatipn and expose him to public hatred; contempt and ridicule.** Chief Justice Booth: A libel is a malicious publication in printing, writing, signs or pictures, imputing to another some- thing which has a tendency to injure his reputation, to dis- grace or degrade him in society, and lower him in the esteem and the opinion of the world, or to bring him into public hatred, contempt or ridicule.' British Encyclopedia; Libel, a word which has many differ- iRice V. Simmons, 3 Harrington, Oldham, 8 Law Times Rep., N. S., 417. 604. 2Layton v. Harris, 3 Harrington, 5 Prefix to Report of Finuerty's 406. Trial. 8 Revised Statutes of Illinois , of 6 Armentrout v. Moranda, 8 1887, 411. • Blackf., 426. 4 Addison on Wrongs ; McNally V. ^ state v. Jeandell, 5 Harring. (Del,), 475. THE AMEKICAN LAW OF DEFAMATION. 35 ent meanings, but is chiefly known in this country as the name of a department of the law which, from incidental circum- stances, has come to include the naturally distinct heads of written slander, sedition and outrage against religion. Bouvier's Law Dictionary: (1) A malicious defamation, ex- pressed either in printing or writing, or by signs or pictures, tending to blacken the memory of one who is dead, with in- tent to provoke the living or the reputation of one who is alive, and to expose him to public hatred, contempt or ridi- cule. (2) A censorious or ridiculous writing, picture or sign made with a malicious or mischievous intent towards govern- ment, magistrates or individuals. — Hamilton. Oapel Loft: A libel is a malicious publication tending to the disrepute of an individual, the breach of the peace, the sedi- tious violation of the good order of government.^ .Sir Edward Cohe: Evepy infamous libel is either in writing or without writing. A scandalous libel in writing is when an epigram, rhyme or other writing is composed or published to the scandal or contumely of another, by which his fame or dignity may be prejudiced.^ Justice Daniel: Every publication by writing, printing or painting which charges or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous, odious or ridiculous, is, prima facie, a libel, and implies malice in the publisher.' Alexander Hamilton: A libel is a censorious or ridiculing writing, picture or sign made with a mischievous and mali- cious intent towards government, magistrates or individuals.* HawTcin's Pleas of the Crown: In a strict sense it [libel] is taken for a malicious defamation, expressed either in printing or writing; in a larger sense, the notion of libel may be ap- plied to any defamation whatsoever, expressed either by signs or pictures, as by affixing up a gallows at a man's door, or by painting him in a shameful and ignominious manner.* 1 Capel Loft's Essay on Libels, 1785, * Hamilton, arg., People v. Cross- p. 6. ■"'ell, 3. Johns. C, 354; Steele v. 25 Coke Reports, 135; 3 Barnewall South wick, 9 Johns. 214; Cooper v. & Ores., 33, 34. . Greeley, 1 Den., 347. 3 White V. NichoUs, 3 How, (U. S.), SHawkin's PI. Cr., 8th ed,, 543. 266. 36 THE AMERICAN LAW OF DEFAMATION." Eilliard: A publication is a libel which tends to injure one's reputation in the common estimation of mankind, to throw- contumely or reflect shame or disgrace upon him, or hold him up as . an object of hatred, scorn, ridicule and contempt, al- though it imputes no crime liable to be punished with infamy, or to prejudice him in his employment. So every publication by writing, printing or painting, which charges or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous or odious or ridicu- lous, is, prima facie, a libel.' Holt on Libel: " Everything, therefore, written of another which holds him up to scorn and ridicule, that might reason- ably (that is, according to our natural passions) be considered as provoking him to a breach of the peace, is a libel." ^ Lord C. J. Holt said that scandalous matter was not neces- sar}' to make a libel. It was enough if the defendant induced an ill opinion to be had of the plaintiff, or made him con- temptible and ridiculous. So, according to the doctrine laid down,' the publishing anything concerning another which renders him ridiculous, or tends to hinder mankind from asso- ciating or having intercourse with him, is actionable.'' Minshcei: Libel, a criminous report of any man cast abroad or otherwise unlawfully published in writing, but then, for difference sake, it is called an infamous libel — famosus lihel- lus} Chief Justice Parsons: A libel is a malicious publication, expressed either in printing or writing,' or by signs and pict- ures, tending either to blacken the memory, of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt or ridicule.^ Russell on Crimes: A libel has been usually treated of as scandal, written or expressed by symbols. Libel may be said to be a technical word, deriving its meaning rather from its use than its etymology.'' 1 1 Hilliard on Torts, ch. vii, § 13. 6 Commonwealth v. Clapp, 4 Mass., 2 Holt on Libel, 213. 162, 168; Root v. King, 7 Cow., 613. sCropp V. Tilney, 8 Salk., 236. 'RusseU's Treatise of Crimes and 1 Villars v. Mousley, 2 Wils., 403. Misdemeanor^ ed. 1819, p. 308. 5 Minshsei, Guide into the Tongues, LcAdon, 1637. THE AMERICAN LAW OF DEFAMATION. oT SelVs Dictionary of the World'' s Press, London, 1887: Words or pictures which expose a person to hatred or contempt ; which tend to injure him in his profession or trade or cause him to be shunned by his neighbors; which impute to him any crime, dishonesty or immorality, or unfitness for any ofHce or posi- tion which he fills or aspires to fill; want of skill or knowledge requisite for his profession; or which impute to a merchant insolvency or embarrassment, past, present or probable.' Story, J.: Any publication the tendency of which is to de- grade and injure another person, or to bring him into con- tempt, hatred or ridicule, or which accuses him of a crime punishable by law, or of an act odious and disgraceful in so- ciety, is a libel.^ In conclusion, it may be said that any publication, expressed either by printing or writing or by signs, pictures or effigies or the like, which tends to injure one's reputation in the com- mon estimation of mankind, to throw contumely, shame or disgrace upon him, or which tends to hold him up to scorn, ridicule or contempt, or which is calculated to render him in- famous, odious or ridiculous, is prima facie a libel, and im- plies malice in its publication.' So, also, is any publication injurious to private character,'' or that reflects upon his char- acter,^ or that injures social character,* or that induces an ill ' opinion,' or that imports a bad reputation;* and so with all defamatory words injurious in their nature.' § 4. (2) Slander Defined.— The following definitions are taken from the leading lexicographers and commentators of the common law: First — The Lexicographers. 2 Bouvier's Law Dictionary, 528: The defaming a man in his reputation by speaking or writing words which affect his life, office or trade, which tend to his loss of preferment in 1 Sell's Diet. World's Press, 1887, ters, 3 Humph., 512; Milton v. State, p, 72; Merrill's Newspaper Libel, 40. 3 Humph., 389. 2 Dexter v. Spear, 4JIason, 115. 'Johnson v. Stebbins, 5 Ind., 364; 'Hill on Torts, 326; Add. on Torts, O'Brien v. Clement, 15 M. &W.,435, 777 ; White v. Nichols, 3 How. (U. « \ Am. Leading Cases, 138. S.), 266; Cramer v. Noonan, 4 Wis., 'Hillhouse v. Dunning, 6 Conn., 231; Lansing v. Carpenter, 9 Wis., 391. 540_ 8 Greely v. Cooper, 1 Denio, 347. * Add. on Torts, 776 ; Dunn v. Win- _ » Chaddock v. Briggs, 13 Mass., 288. 38 THE AMEEIOAN LAW OF DEFAMATION. marriage or service, or in his inheritance, or which occasion any particular damage. Verbal slander may be considered with reference to (1) The nature of the accusation; (2) The falsity of the charge; (3) The mode of publication ; (4) The occasion; (5) The malice or mo- tive. Nature of the ac&usation. (1) Actionable words are of two descriptions: first, those actionable in themselves, without proof of special damages; and, secondly, those actionable only in respect of some actual consequential damages. "Words of the first description must impute (1) the guilt of some offense for which the party, if guilty, might be indicted and punished by the criminal courts; as to call a person a " traitor," " thief," " highwayman," or to say that he is guilty of " perjury," " for- gerj'," "murder," or the like; and although the imputation of guilt be general without stating the particulars of the pre- tended crime, it is actionable ;i (2) that the party has a disease or distemper which renders him unfit for society; (3) unfit- ness in an officer who holds an office to which profit or emolu- ment is attached either in respect of morals or inability to discharge the duties of the office;^ (4) the want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade or business in which the party is engaged, as to accuse an attorney or an artist of inability, inattention or want of integrity, or a clergyman of being a drunkard.' Of the second class are words which are actionable only in respect of special damages sustained by the party slandered, though the law will not permit in these cases the inference of damage. Yet when the damage has actually been sustained 1 Walker v. Winn, 8 Mass., 348; 2Graves v. Blanchett, 1 Salk., 695; Widrig V. Ayer, 13 Johns., 134; Action sur Case, Roll. Abr., 65; Minors v. Seeford, Cro. Jac, 114; Phillips v. Jansen, 3 Esp. E., 634; Burton v. Tobin, Cro. Jac, 143; Holt The Case de Libellis Famosis, 3 Co., V. Scholefield, D. &E., 6T. R., 694; 135; Aston v. Balgrave, 1' Strange, Walden v. Mitchell, 3 Vent. R., 366; 617; Aston v. Balgrave, 3 Ld. Eay- Morris v. Langdale, 3 New Reps., mond, 1869. 384 ; Andres v. Koppenheafer, 3 Serg. 3 1 Mallory's Modern Entries, 344 ; & Raw. (Penn.), 355; Walton v. Onslow v. Home, 3 Wils., 18'7; Ons- Singleton, 7 Serg. & Raw. (Penn.), low v. Home, 3 Bl. Rep., 750; Mc- 449; McMillan v. Birch, 1 Binn., 178; Millan v. Birch, 1 Binn. (Penn.), 178. McClurg V. Ross, 6 Binri., 318; Brown T. Lamberton, 3 Binn., 34. THE AMEEICAN LAW OF DEFAMATION. 39 the party aggrieved may support an action for the publication of an untruth,^ unless the averment be made for the assertion of a supposed claim ; but the action lies if maliciously spoken.'' (2) The charge must he false. The falsity of the accusation, is to be implied till the contrary is shown. Exception: The instance of a master making an unfavorable representation of his servant upon application for his character seems to be an exception, in that case there being a presumption from the occasion of the speaking that the words are true.' (3) The slander must he published — that is, communicated to a third person, and if verbal, then in a language which he un- derstands; otherwise the plaintiff's reputation is not impaired.* (4) To render words actionahle they must he utterred without legal occasion. On some occasions it is justifiable to utter slander of another; in others it is excusable provided it be ut- tered without express malice. It is justifiable for an attorney to use scandalous expressions in support of his client's cause and which are pertinent thereto. Members of congress and of other legislative assemblies cannot be called to account for anything said in debate.* (5) Malice is essential to the support of an action for slander- ous words. But malice in general is to be presumed until the contrary is proved,* except in those cases where the occasion prima facie excuses the publication.' BacorHs Abridgment. Slander is the publishing of words in writing or by speaking, by reason of which the person to 1 Sbeperd v. Wakeman, 1 Sid., 79; 380; Harding v. Greening, 1 Holt E., Williams v. Llnfords, 3 Leon., 111. 531; Hodgen v. Scarlett, 1 B. & A., 2 C!om. Dig., Action on the Case for 233; Kean v. McLaughlin, 3 Serg. & Defamation, D., 30; BaC. Abr., Slan- Raw. (Penn.),469;Bac.Abr., Slander, der; 1 Eolle, Abr., 86; Craft v. Boite, D., 4; EoUe, Abr., 87; 1 Vin. Abr., 1 Saund., 343; Hartley v. Herring, 540. D. & E., 8 T. E., 130. 6Bromage v. Prosser, 4 B. & C, 3 The Case de Libellis Faniosis, 3 247; Craft v. Boite, 1 Saund., 242, n. Coke E., 125; Thornton v. Jebson, 3; Weatherstone v. Hawkins, D. & Hob., 140; Maitland v. Goldney, 3 E., 1 T. E., Ill; Harman v. Taflfen- East, 436; Craft v. Boite, 1 Saund., den, 1 East, 563; Maitland v. Gold- 343; Weatherstone v. Hawkins, D. ney, 3 East, 436; 3 New E., 335. & B., 1 T. E., 111. ■i'McAlmont v. McClellan, 14 Serg. < Bobbins v. Franks, Cro. Eliz., &Eaw.(Penn.), 359;Bromagev. Pros- 857; Craft v. Boite, 1 Saund., 343. ser, 4 B. & C, 347; Starkie on Slan- SThe King v. Crury, 1 M. & S., der, 301. 40 THE AMERICAN LAW OF DEFAMATION. whom they relate becomes liable to suflfer some corporal pan- ishment or to sustain some damage.' 6 Jacob's Law Dictionary. 99: The maliciously defaming of a man in his reputation, profession or livelihood by words. ^ Ahlotfs Law Dictionary, JtS'Z: Aspersion by word of mouth; oral defamation; words uttered falsely and maliciously by which the reputation of another is injured. 2 RapaJ,je and Lawrences Laxo Dictionary, 119S: A false and malicious statement concerning a person made by word of mouth, giving rise to a right of action for damages. Brown's Law Dictionary, 388: The malicious defamation of a man with respect to his character or his trade, profession or occupation by words of mouth. 2 BurriWs Law Dictionary, Ji.71: Defamation by words spoken; the utterance of false, malicious and defamatory words, tending to damage and derogation of another. Wharton's Law^ Dictionary, 699: The maliciously defaming of a person in his reputation, profession or livelihood by words. 3 TomlirHs Law Dictionary, IfiS: The maliciously defaming of a man in his reputation, profession or livelihood by words. Second — The Commentatoes. 3 Blackston^s Commentaries, 183: An injury affecting a man's reputation or. good name by malicious, scandalous and slanderous words, as if a man utter any slander or false tale of another, which may endanger him in law by impeaching him of some heinous crime, as to say that a man hath poisoned an- other or is perjured; or which may exclude him from society, as to charge him with having an infectious disease; or which may impair or hurt his trade or livelihood, as to call a trades- man a bankrupt, a physician a quack, or a lawyer a knave. 1 Hilliard on Torts, 8^3: Slander is defined as the imputa- tion: 1. Of some temporal offense for which the party might be indicted and punished in the temporal courts. 2. Of an ex- isting contagious disorder tending to exclude the party from society. 3. An unfitness or inability to perform the duties of an oflace of honor. 4. Words prejudicing a person in his lucrative profession or trade. 5. Any untrue words occasion- ing actual damage. 1 9 Bacon's Abridgment, title Slander. THE AMEEICAJSr LAW OF DEFAMATIOK. 41 3 Eenfs Commentaries^ 16: The act of falsely and mali- ciously charging another with the commission of some public offense, criminal in itself and indictable, and subjecting the party to an infamous punishment or involving moral turpitude, or the breach of some public trust, or with any matter in re- lation to his particular trade or vocation, and which, if true, would render him unworthy of employment; or lastly, with any other matter or thing by which special injury is sustained. In conclusion, it may be said definitions of libel and slander afford but little aid in disposing of the questions ordinarily in- volved in these controversies, unless it becomes necessary to define the difference between oral and written defamation, or to prescribe a criterion to determine, in cases where special damage is claimed, whether the injury alleged naturally flows from the speaking of the words set forth in the declaration. The different definitions of slander have been given from dif- ferent lexicographers and commentators on the subject; but it will be sufficient to say that oral slander as a cause of action may be divided into five classes, as follows: § 5. Slanderous Words Classified.'— Class 1. Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished. Class 2. "Words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society. Class 3. Defamatory words falsely spoken of a person, which impute to the party unfitness to perform the duties of an oflSce or an employment of profit, or the want of integrity in the discharge of the duties of such an oflBce or employment. Class 4. Defaraatorj'- words falsely Spoken of a party which prejudice such party in his or her profession or trade. Class 5. Defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party special damage. 1 Pollard V. Lyon, 91 U. S,, 325; Warnoe v. Circle, 29 Grat. (Va.), 197; Chapin v. Lee, 18 Neb., 440. CHAPTEK IV. LIBELS— DEFAMATION BY WRITING, PRINTING, PICTURES, EF- FIGIES AND OTHER REPRESENTATIONS. § 1. Libels. 3. Illustrations — American Cases: A Wisconsin case, Massuere v. Dick- ens, 70 Wis., 83; 35 N. W. Rep., 349. An Indiana case, Prosser v. Challis, 19 N. E. Rep., 735. A New York case, Purdy v. The Roch- ester Printing Co., 26 Hun, 306. A Massachusetts case, Clark v. Binney, 3 Pick., 112. 3. What is Libelous — Illustrations — Digest of American Cases : L Gen- erally. II. Publications in Newspapers — Publications in Books and Pamphlets, etc. — Posting Placards, Hand-bills, etc. — Entries in Books of Corporations, Associations, etc. — Letters, etc. — Effigies, etc. — General Digest of English Cases. 4. What is Not Libelous — Illustrations — Digest of American Cases — Digest of English Cases. LIBELS CLASSIFIED. 5. Libels on Private Persons. I. Libels which Impute to a Person the Commission of a Crime, 6. The Subject Defined. 7. Illustrations — Digest of English Cases. II. Libels which Have a Tendency to Injure a Person in His Office, Profes- sion, Calling or Trade, 8. The General Doctrine. 9. Libels on Persons in Office. 10. Illustration — An Old English Case. 11. Distinction between Libel and Slander in England. 18. Digest of American Cases. 13. Digest of English Cases — Barristers; Medical Men; Newspaper Men. 14. Libels on Merchants and Traders. 15. Illustrations — Digest of American Cases — Digest of English Cases. III. Libels which Hold a Person up to Scorn and Ridicule, 16. The Law Stated. 17. Illustrations — Digest of American Cases — Digest of English Cases. 18. Libels on Official Persons and Candidates for Office. 19. Illustrations — Digest of American Cases. LIBELS ILLUSTRATIONS. 43 § 1. Libels. — Everj'thing printed or written which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been.^ The words need not necessarily impute disgrace- ful conduct to the plaintiff; it is sufiBcient if they render him contemptible or ridiculous.- Any written words are defamatory which impute to the plaintiff that he has been guilty of any crime, fraud, dishonesty, immorality, vice or dishonorable conduct, or has been accused or suspected of any such misconduct; or which suggest that the plaintiff is suffering from any infectious disorder; or which have a tendency to injure him in his office, profession, calling or trade. And so, too, are all words which hold the plaintiff up to contempt, hatred, scorn or ridicule, and which, by thus engendering an evil opinion of him in the minds of right- thinking men, tend to deprive him of friendly intercourse and society. It need not necessarily be in writing or printing. Any car- icature or scandalous painting or effig}^ will constitute a libel;' but it must be something permanent in its nature — not fleeting, as are spoken words.* § 2. Iliiistrations — American Cases. — 1. A Wisconsin Case: Massuere v. Dickens, 70 Wis., 83; 35 N. W. Rep., 349. Massuere brought an action for a libel against Dickens for the following publication : ' ' Massuere' s ' Card ' Analyzed. — I notice in the ' Eepublican and Leader ' of November 26th a ' card' (?) from W. P. Massuere, referring to the recog- nition for the heroic services of John EUine in the late fire, in which he un- gentlemanly and maliciously, reflects upon the honor and manhood of myself. In self -protection I desire to state that the proximity of my build- ings and lumber to the fire and other business houses necessitated the saving of my property to protect the town. Had my buildings burned, no power 1 O'Brien v. Clement, 15 M. &W., v. Lee, L. E., 4 Exch., 384; Odgers 435 ; Miller v. Butler et al. , 6 Cush. ; on L. & S. , 20 ; Whitney v. Janesville 60 Mass., 71. Gazette, 5 Biss., 330. 2Cropp V, Tilney, 3 Salk., 236; 3 5 Rep., 1356; Anon., 11 Mod., 99; Villers v. Monsley, 2 Wils., 403; Austin v. Culpepper, 3 Show., 313; Watson V. Trask, 6 Ohio, 531; Brad- Skin., 133; Jeffries v. Buncombe, 11 leyv. Cramer, 59 Wis., 309; 18N.W. East, 326; Du Bost v. Beresford, 2 Eep., 368; Folkard's Starkie, fi 154; Camp., 511. State V, Spear, 13 R. I., 334; Cooper « Odgers on L. & S., 20. V. Greely, IDenio (N. Y.), 359; Cox 44 WRITTEN DEFAJIATIO>f. at our command could have saved the entire village from destruction. One of the very first to have gone is the concern in which Mr. Maasuere is in- terested. Hence the fight was made for very many others, and not for me alone, as Mr. M. seems unprincipled enough to reflect. In regard to raising money to replace the coat said to have been lost by Mr. Kline, it appears that Mr. Kline went to Mr. Massuere to purchase a coat immediately after the fire ; no coat could be found suitable in his stock, and they together went over to Bohrie Bros. & Maurer's, where one was obtained. The presenta- tion of the coat to Mr. Kline, gratis, was only a just recognition of his serv- ices and creditable to the gentlemen who contributed. But the solicitation was done by some one, probably by Massuere, very silently. He never so- licited from me, nor even mentioned the subject to me in any way ; hence I had no chance to contribute to that particular fund. But I feel confident that upon a comparison of time it will be found that I had handed to Mr. Kline a money consideration before a cent was subscribed by any man for a coat, and I think a sum very nearly the value of the coat ; hence not wholly devoid of appreciation for valiant services. This much to the public in de- fense of my honor, and I know 'tis sufficient to the fair-minded — certainly to those who may know the situation. Now to Mr. Massuere I desire to frankly say your stab is unprovoked and unmerited. I resent it as an act on your part devoid of principle, honor and manhood. In no respect do I stand in your shadow, or that of any other man in this community, in re- sponse to merited charity or public enterprise. Considering your low, mean, dirty, uncalled-for thrust, you must lose all self-respect, and I denounce you as only fit to be classed with that repulsive order of creation, the Mephitis Americana. If your ignorance is as limited as your sense of manhood, honor and decency appears to be, you will be unable to comprehend the appellation applied to you, and to save you the further humiliation of seek- ing light from your neighboirs I will translate for your benefit: Sktjnk — a thing as repulsive to the finer sensibilities of man as your low insinuations and business practices are to your fellow-townsmen. " [Signed] R. L. Dickens." The card therein referred to is as follows : "A Card. — Mr. J. Kline, of Waumandee, happened to be in town at the time of the fire and took hold like a good fellow, and during the time lost his coat. He stood in the intense heat, and through his help with others saved the hardware store of R. L. Dickens. Through the contributions of Proctor Bros., John Maurer, Emil Maurer, Dr. G. N. Hidershide, John Dressendorfer, Peterson, Massuere & Co.. Tim Selk and J. M. Fertlg a coat was bought and thanks returned to John for his help. " [Signed] W. P. Massuere." The defendant's answer consists, in effect, of denials, admissions and. matters in mitigation of damages. On the trial the jury returned a verdict in favor of the plaintiff for $1,000. Thereupon the defendant moved upon the minutes of the court to set aside the verdict and for a new trial. On the plaintiff's filing a remission of |500 from the verdict the court overruled the motion, and judgment was entered in favor of the plaintiff for dam- ages, costs and disbursements. On appeal it was held that the article was libelous in itself. LIBELS — ILLUSTEATIONS. 45 2. An Indiana Case: Prosser v. OhalUs, 19 N. E. Rep., 735. On the 23d day of August, 1885, E. W. Challis, editor and manager of ttle " Weekly Gazette," published. the following article: "At last, after raany days of weary waiting and particular prodding, the county dads came out with a statement pretending to show the financial condition of Morgan county. Such a statement ! It cannot be understood even-by a Philadelphia lawyer. One big item of expenditure — the cost of building the bridge at Mooresville — amounting to, $15, 000, is entirely left out of the calculation. We expect there may be other omissions of the same character, but have no time to search them out for this issue,. Now if such an important item as this is omitted, while the statement is sworn to as correct, there is every reason to believe that the whole statement is a piece of financial botchwork, patched up to ease popular clamor. If an officer will swear to one lie he will swear to another." George W. Prosser, county auditor, the officer referred to, brought his action for libel. A de- murrer being sustained to the declaration an appeal was taken to the supreme court, where the decision was reversed and the article held to be a libel. 8. A New York Case: Purdy v. Rochester Printing Co., 26 Hun, 206. The Rochester Printing Company published the following article : "A narrow escape from being buried alive. A well-to-do farmer found stiff and sold by the road-side; he is supposed to have been frozen to death ; a coroner takes charge of the case and impanels a jury; the inquest inter- rupted by a physician, who declares the man to be alive ; animation re- stored. " About 9 o'clock last Friday a stiffened body was found in the highway opposite the residence of John Morehouse, about two miles north of Seneca Falls. To all appearances the man was frozen ; the limbs were rigid ; the face was pale ; the eyes had a glassy look, and there were no signs of life. Mr. Morehouse placed the supposed corpse in a wagon and conveyed it to Seneca Falls, where he delivered it to the police. It was placed in Mr. Met- calf s store, and Coroner Purdy was notified. A case of this kind always attracts a crowd. The people gathered and scanned the face of the sup- posed dead man. Every one pronounced him dead — frozen to death. He was recognized as John Hammell, a farmer living two and a half miles south of the village. Coroner Purdy arrived, summoned a jury, and began to inquire according to law how and by what means the man then and there lying dead came to his death. Dr. Lester looked at the supposed re- mains, and, after a careful examination, said the man was alive. They laughed at him, but he insisted so strongly that life was still within the stiffened body that Nicholas Durnir, a brother-in-law of the deceased, caused the body to be removed to his store. The coroner's inquest was thus interrupted, and the inquest and perhaps a funeral was averted. It was about 11 A. M. that Dr. Lester commenced his work of restoring life. . . . By 9 o'clock Saturday morning consciousness was fully restored, and al- though his fingers, toes, n'osb and ears are badly frozen, he will recover. Mr. Hammell can thank Dr. Lester for the fact that the coroner's jury did not return a verdict that he came to his death from exposure, and that he was not placed in a coffin and buried alive, and that his family and friends 4:6 WEITTEN DEFAMATION. were not called upon to mourn his unfortunate death." Purdy, the cor- oner, a physician and surgeon, practicing his profession, brought an action for libel against the printing company. The judge, at the circuit court, after hearing all the evidence, directed a verdict for the defendant on the ground that the publication was not libelous in itself and there was no proof of express malice. On appeal in the supreme court the finding was re- versed and the article held to be libelous in itself. 4. A Massachusetts Case: Clark v. Binney, 2 Pick., 113. Amos Binney,, the defendant, published a pamphlet entitled "Documents relative to the investigation, by order of the secretary of the navy, of the ofBcial conduct of Amos Binney, etc. Published by the accused'." The plaintiff was a witness before the commissioners appointed to make the investigation, and Binney published his testimony with the following re- marks: "I am extremely loath to impute to Mr. Clark or Mr. Scott, his partner, improper motives in regard to the false accusation against me ; yet I cannot refrain from the remark that if their motives have not been un- worthy of honest men, their conduct in furnishing materials to feed the flame of calumny, which has raged to the most unheard-of degi'ee, has been such as to merit the reprobation of every man having a particle of virtue or honor in his whole composition. They have both much to repent of for the groundless and loose insinuations they have propagated against - me.'' Held to be a libel, and a verdict for $liOOO was sustained. § 3. What is Libelous — Illustrations — Digest of Amer- ican Cases. — I. Generally. 1. A libel is a censorious or ridiculing writing, picture or sign made with a mischievous and malicious intent towards government, magistrates or in- dividuals. Per Hamilton. People v. Croswell, 3 Johns. C, 337, 854; Steele v. South wick, 9 Johns., 314; Cooper v. Greeley, 1 Den., 347. A libel is a malicious defamation, made public either by printing, writ- ing, signs or pictures, tending to, blacken the memory of one who is dead, or the reputation of one who is living, and expose him to public hatred, contempt or ridicule. Root v. King, 7 Cow., 618. Every publication by writing, printing or painting, which charges or im- putes to any person that which renders him liable to punishment, or which is calculated to make him infamous, odious or ridiculous, is prima facie a libel, and implies malice in the publisher. White v. Nichols, 3 How. (U. S.), 266. A libel is a miscellaneous publication in printing, signs or pictures, im- puting to another something that has a tendency to injure his reputation ; to disgrace or to degrade him in society, and lower him in the esteem and opinion of the world, or to bring him into public hatred, contempt or ridi- cule. Torrance v. Hurst, 1 Miss. (Walk.), 403 ; Obaugh v. Finn, 4 Ark., 110 ; Com. V. Clapp, 4 Mass., 163; State v. Jeandell, 5 Harr. (Del.), 475; Armen- trout V. Moranda, 8 Blackf. (Ind.), 426; Newbrough v. Curry, Wright (Ohio), 47; Lansing v. Carpenter, 9 Wis., 540. A censorious or ridiculing writing, picture or sign, made with a mis- "WHAT IS LIBELOUS — ILLUSTEATIONS. 47 chievous and malicious intent towai'ds government, magistrates or individ- uals. Steele v. South wick, 9 Johns. (N. Y.), 214; State v. Farley, 4 McCord (S. C), 317. 2. A publication charging the plaintiff, as agent of certain fruit-growers, with corruptly failing properly to exhibit their fruit at a fair and entering it as his own, is a libel, if false, as calculated to expose him. to obloquy. Betner v. Holt, 70 Cal., 270. Words fairly imputing to a physician a failure to discover the presence of diphtheria until long after it should have been discovered ai-e libelous in themselves. Gauvreau v. Superior Publishing Co., 62 Wis., 403. 3. To say of a woman that "she is like an old sheep and has twins at every litter," that " she stinks like old cheese," that " her teeth are like an old goat's," that " she is like an old ewe," etc., is libelous in itself. McMurry V. Martin, 26 Mo. App., 437. i. A letter from A. to B. about C, "I was unfortunate enough to have him in my employ at one time as a book-keeper. He is a liar. I would not believe him under oath," — was TieM libelous in each of its three sen- tences. Hake V. Brames, 95 Ind., 161. 5. Want of an intention to vilify does not render an objectionable pub- lication any the less a libel. And a publication is not excused by the pub- lisher's ignorance that it contains libelous matter. Curtis v. Mussoy, 6 Gray (Mass.), 261. But see Smith v. Ashley, 11 Met. (Mass,), 367. 6. To charge a commissioner in bankruptcy with being a misanthropist, a partisan, stripping the unfortunate debtors of every cent, and then de- priving them of the benefit of the act, etc., is libelous; and, to make out a justification of the charge, the defendant must show that the plaintiff, as commissioner, wilfully perverted the law to such oppressive purposes. Riggs V. Denniston, 3 Johnson's Cases, 198. 7. A communication concerning a discharged superintendent of the de- • fendant's fact»ry, in effect charging embezzlement, unfitness for the posi- tion, extravagance and impracticability, was held to be a libel in itself. Manner v. Simpson, 13 Daly (N. Y.), 156. 8. Calling one a "hoary-headed filcher" is libelous. Crocker v. Hadley, 103 Ind., 416. To charge a woman with illegitimacy is libelous in itself. Shelby v. Sun Printing Asso., etc., 38 Hun (N. Y.), 474. It is a libel for a hotel- keeper to write the word " frod" after a guest's name in his register. State v. Fitzgerald, 20 Mo. App., 408. 9. Defendant sent to a newspaper, as an advertisement, a false statement that he wanted the plaintiff to pay a bill. The publisher put it among other " wants," one of which called for a " deadhead." • A third person cut the advertisement out, pasted it on a postal card, and sent it to a young woman engaged to be married to the plaintiff. In an action it was held to be a libel, and that it was a question of fact whether the sending of the postal card was a natural consequence of the publication. Zier v. Hofflin, 33 Minn., 66 ; 53 Am. Rep. ,.9. 10. Any publication the tendency of which is to degrade and injure an- other person, or to bring him into contempt, hatred or ridicule, or which accuses him of crime punishable by law, or of an act odious and disgrace- 48 WRITTEN DEFAMATION. ful in society, is a libel. Dexter v. Spear, 4 Mass., 115; Adams v. Lawson, 17 Gratf. (Va.), 250; Towville v. Neace,' Dudley (S. C), 304. 11. It is a libel to publish an article stating that a person has been de- prived of the chief ordinance of the church to which he belongs. McConkle V. Binns, 5 Binn. (Pa.), 340. 12. The wilful publication of injurious statements involves the design to produce whatever injury must necessarily follow ; and when done purposely, knowingly, and for no good purpose or justifiable end, it is malicious in the sight of the law, even if done without any actual personal ill-will. Maclean V. Scieffs, 54 Wis., 317; 17 N. W. Rep., 815. 13. A publication which in effect implies that a judge on the bench is in partnership with his son, a lawyer, and in that capacity receives com- pensation from parties to suits in which the judge sits, is a libel. Royce v. Maloney, 58 Vt., 487. 14. In order to constitute a libel for which an action may be sustained, the publication need not import a criminal charge; it is sufficient if it tends to subject the party to whom it refers to ridicule or contempt. Miller v. Butler, 6 Cush. (Mass.), 71. 15. Printed slander is a higher offense than merely speaking the defam- atory words. Whitney v. Janes ville Gazette, 5 Biss., 380. 10. A publication containing statements- holding a person up to scorn or ridicule, and which degrade and disgrace him in the eyes of men, is libelous in itself. Bgrgman v. Jones, 94 N. Y., 51. Thus, one who falsely writes and publishes a statement that a certain newspaper "is alleged to have been started for the purpose of plunder " is guilty of a libel. Hort v. Townsend, 67 How. (N. y.) Pr., 88. 17. Words which have a direct tendency to injure a person in reputation, to degrade and disgrace him in society, and to bring him into public con- tempt and ridicule, are libelous. Carey v. Allen, 39 Wis., 483. 18. A publication referring to the plaintiff and charging that he "seems to have coveted his late partner's cattle," and that he started for the city with the cattle, " and an oflScer was put upon his trail," was held libelous, though not directly charging larceny. Bain v. Myrick, 88 Ind., 137, 19. A publication ironically charging the plaintiff with insanity is a libel. Southwick V. Stevens, 10 Johns. (N. Y.), 443. 20. The false and malicious publication of an obituary notice of a person living. McBride v. Ellis, 9 Rich. (S. C), 313. 21. To write concerning a man, " look upon him as a rascal, and have watched him for many years," is a libel. Williams v. Carnes, 4 Humph. (Tenn.), 9. So to write of a man " he has put in circulation a false, scandal- ous and scurrilous i-eport." Colby v. Reynolds, 6 Vt., 489. And so to pub- lish of a man that he is a miserable fellow; that it is impossible for a newspaper article to injure to the extent of six cents; that the community could hardly despise him worse than they do now. Brown v. Remington, 7 Wis.,, 462. 22. A false and malicious writing containing an insinuation that a per- son has been guilty of perjury is a libel. Dillhouse v. Dunning, 6 Conn., 391; Mallerich v. Mertz, 19 La. Ann., 194; Howse v. Stanford, 4 Sneed (Tenn.), 620, ■WHAT IS LIBELOUS — ILLUSTRATIONS. 49 28. To publish in writing an expression of a belief that one has com- tnitted a felony is actionable in itself ; and the fact that the reasons for the belief are also given will not affect the question, unless the reasons explain away the charge. Johnson v. St. L. Dispatch Co., 2 Mo. App., 565. 24. The publication of a statement that one has been dismissed for alleged thefts, followed by a comment that the rascal ought to feel thankful to get off so cheaply, is libelous. Dwyer y. Fireman's Journal Co., 11 Daly (N.. Y.), 248; Ryer v. Fireman's Journal Co., id., 251. 25. In an advertisement notifying the public not to harbor or trust the advertiser's wife on his account, defamatory words in regard to the wife are not privileged ; and where the jury has found that defendant did not have reasonable and probable cause to believe the matter published to be substantially true, and that in publishing it he was actuated by malice towards plaintiff, under instructions that the burden was on plaintiff to prove defendant's knowledge of the falsity, the defense of privilege fails. Smith V. Smith (Mich.), 41 N. W. Eep., 499. 26. A statement that a person is fit for a lunatic asylum is, nevertheless, libelous, because it is made by a physician as his professional opinion, it not being made to a person to whom it was his duty to make it. Perkins v. Mitchell, 31 Barb. (N. Y.), 461. 27. Where a resolution was adopted by a county medical society in New York, and entered among their proceedings, expelling a member on the ground that he did not possess the requisite qualifications, and obtained his admission by false pretenses, it was held that the resolution was a libel ; the proceedings of the society in the case being without justification, and that the member introducing the resolution was liable for publishing it. Fawcett y. Charles, 13 Wend. (N. Y.), 473. 28. The publication of false and malicious statements about a church member, accusing him of disturbing the peace of the church by circulat- ing false statements about the pastor and censuring him therefor is a libel. Over V. Hildebrand, 92 Ind., 19. 29. Charging a newspaper publisher with being a party to a secret con- clave, in which he sold the support and advocacy of his paper to a certain corporation for a large sum of money, is actionable in itself. Fitch v. De Young, 5 Pac. Rep., 364. 30. It is libelous to write and publish that a child is illegitimate. Shelby V. Sun Printing Association. 88 Hun (45 N. Y. Supr. Ct.), 474. So to write and publish of a man that a certain notorious prostitute is "under his patronage or protection." More v. Bennett, 48 N. Y. (3 Sickel), 472. So an obituary notice of a living person may be a libel. McBride v. Ellis, « Mich., 313. And words charging that the plaintiff "will not sue in a particular county, because he is known there," are libelous. Cooper v. Greeley, 1 Denio (N. Y.), 347. 31. A statement that a general passenger agent of a railroad company " has been growing rich by making his local ticket agents, or some of them, divide their commission with him " is libelous. Shattuok v. McArthur, 25 Fed, Eep., 133. 32. A publication stating that the plaintiff is about to commence a suit for a libel, but that he will not like to bring it to trial in a particular county 4 30 WEITTEN DEFAMATION. because he is known there, is libelous. Such a publication amounts to the charge that the plaintiff is of bad repute in the county referred to, and for that reason would not like to bring the issue to trial in that county. Cooper V. Greeley & McEIrath, 1 Denio, 347. 33. It is libelous to charge that a citizen who was a member of a polit- ical party at a nominating convention of such party offered, from the in- iluence of a bribe, a resolution that no nomination of a candidate for a particular office should be made. Hand v. Winton, 38 N. J. L., 123. 34. It has been held libelous to publish of a man in writing or print " he is a hog." Solonson v. Peterson, 64 Wis., 198; 25 N. W. Rep., 14. Ortocall an •ittorney a " shyster." Gribble v. Pioneer Press Co., 34 Minn., 342 ; 25 N. W. Rep., 710. To call a man a " skunk.." Massuere v. Dickens, 70 Wis., 83 ; 35 N. W. Rep., 349. To publish of a woman, " She acted like a cat, purring and mewing and crawling about like a cat, and trying to catch rats." Stewart v. Swift, 76 Ga., 280. To publish of the grand worthy chief tem- plar in a temperance organization that he was "an arch hypocrite and scoundrel." Finch v. Vidquain, 11 Neb., 280 ; 9 N. W. Rep., 43. To charge a person with smuggling goods into the country". Stillwell v. Barter, 19 Wend. (N. T.), 487. To charge a person with being " a drunkard," " a cuck- old," " a tory.'' Giles v. Stole, 6 Ga., 276. To assail the integrity or capac- ity of a judge. Robbins v. Treadway, 3 J. J. Marsh. (Ky.), 540. To charge that " B. would put his name to anything that T. would request him to sign that would prejudice D.'s character." Duncan v. Brown, 15 B. Monroe (Ky.), 186. To write of a person that "he is thought no more of than a horse-thief and a counterfeiter." Nelson v. Musgrave, 10 Mo., 648. To call a man a liar, a scoundrel, a cheat and a swindler. Com. v. Clapp, 4 Mass., 163. To write of a person that he voted twice at an emotion for lieutenant-governor. Walker v. Winn, 8 Mass., 248. To designate an ed- itor of a neighboring newspaper " an ill-natured manikin," "a mouse most magnanimous," " a vermin small." Child v. Homer, 30 Mass., 510. 35. A publication speaking of a man's " clutch on his friends, which caused them to trust him and get left," and which states in substance that he had left the city under a cloud, had collected a bill due to his employers, which he secreted until another attempted to collect it, that he borrowed what money he could from his friends, and left with an unpaid board bill, is libelous in itself, because it not only imputes fraud and dishonesty in other respects, but plainly imports embezzlement in the collection of the bill. Iron Age Pub. Co. v. Crudup (Ala.), 5 So. Rep., 833. H. Publication m Newspapers. 1. The proprietor of a newspaper is liable for a libel published or circu- lated in his paper, though published in his absence and without his knowl- edge, by an agent to whom he had given express instructions to publish nothing exceptionable, personal or abusive which might be brought in by the authors. Dun v. Hall, 1 Ind., 344. 2. A party who communicates a statement of facts to the reporter of a newspaper, directing its publication, thereby causing a libel to be published, cannot escape conviction because he did not write and publish the same himself. Clav v. The People. 86 111., 147. PUBLICATION IN NEWSPAPERS. 51 3. A newspaper advertisement describing a horse as stolen, and stating "the thief is believed to be one "William H. Simmons, of Belle Plaioe," is libelous. Simmons v. Holster, 13 Minn., 249. 4. A. was a witness in a suit between B. and C, and C. afterwards printed and published of A. : " 'Our army swore terribly in Flanders,' said Uncle Toby ; and if Toby was here now he might say the same of some modern swearers; the man [meaning A.] is no slouch at swearing to an old story." It was held that these words, if they did not import a charge of perjury in the legal sense, yet they were libelous, as they held the plaintiff up to contempt, etc. Steele v. Southwick, 9 Johns. (N. Y.), 214. 5. The following paragraph published in a newspaper was held to be a libel: "To W. L. T. : You are hereby notified that I have made application for a homestead, and the same will come on for hearing at the ordinary's ofiice Dec. 15, 1876. L. K. W. "N. B. — Take notice, merchants and community generally, the thieves [innuendo meaning plaintiff] are refusing to pay for rations. W. L. T." Tillmore v. Willis, 61 Ga., 433. 6. And so, too, the following: " Never go into a lawsuit with A. M. [the plaintiff] so long as he may be the owner of those books that beat S. E. C, and whoever they might be brought up against, for M. is a chiefest among ten thousand and the one altogether lovely on the swear. We begin to believe that old K. is no bug- eater if he is a man-eater ; for we met Mr. M. under the fish last week in a suit on a plain promissory note for $585, and he came very near swearing us into his debt. If Beecher is really desirous of laying out T. Tilton in his suit now in progress in New York city, let him send for our friend M." Gabe v. McGinnis, 68 Ind., 538. 7. A sensational newspaper article which set forth that the plaintiff was living in extreme poverty and destitution, which was false, and was mali- ciously published with the intention of injuring the plaintiff's good name, was held to be a libel. Moffatt v. Caldwell, 5 Thomp. & C. (N. Y.), 256; 3 Hun, 28. 8. Words published in a newspaper which tend to impeach the hoijesty and integrity of jurors in their office are libelous'; and a publication which denounces a verdict as infamous, and declares: "We cannot express the contempt which should be felt for these twelve men who have thus not only offended public opinion, but have done injustice to their own oaths," is directed against the jurors individually. Byers v. Martin, 2 Col. T., 605. 9. 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 sura, it was stated that the plaintiff had been employed to pi-epare the mine by plastering and engrafting silver ore on the limestone rock while armed men guarded the entrance to the mine. It was also stated that the plaintiff was an expert in preparing a mine in this way, and that his services in this re- gard were as valuable as those of the person through whose infiuence and standing the stock of the company was sold. On demurrer it was held that without the aid of any extraneous matter the article was libelous, as cliarg- ing the plaintiff with having knowingly aided in a swindling enterprise. Wiiliams v. Godkin, 5 Daly (N. Y.), 499, 53 WRITTEN DEFAMATION. 10. In an action by R. against A. for libel, there was evidence tbat A, was the publisher of the Leavenworth "Times," containing an article : " Who is EJ. Russell, in whose eyes swindling is no crime? He is secretary of the bankrupt Kansas Insurance Company, and less than two years ago he was state commissioner of insurance, and certified under his oath of office that this bankrupt concern was a sound and solvent insurance company, while he knew it was at that very time hopelessly bankrupt. He was forced to leave the oflBce of commissioner of insurance because the Leavenworth ' Times " exposed his oflScial crookedness, and compelled him to disgorge $8,000 of the state's money." Held, that it was immaterial that R. was not in any such office when the article was published, and that the article would be presumed to be false and without sufficient excuse until the con- trary be shown. Russell v. Anthony, 31 Kan., 450. 11. The publication of false and malicious statements about a church member, accusing him of disturbing the peace of the church by circulating false statements about the pastor, and censuring him therefor, is actionable in itself. Over v. Hildebrand, 93 Ind., 19. And so is the publication of the suicide of a man, falsely charging in effect that it was induced by the exactions of his wife, and by her fraudulent conduct in taking wages for her son which he had not earned. Bradley v. Cramer, 59 Wis., 309; 48 Am. Rep., 511. 12. A newspaper article stating that a chairman of a county committee of a political party "has descended from the high calling of a clergyman to the recognized champion and professional defender of prostitutes and the lowest grade of criminals who throng the audience halls of our police courts. . . . The money of the ring, of the prostitute, of the libertine and burglar, is all alike to him if he is duly intent on making money," was held libelous in itself and not privileged. The publishers, failing to estab- lish its truth, must respond in damages. Barr v. Moore, S7 Penn. St., 385. 13. To publish in a weekly newspaper an article in the following words: " To whom it may concern: This is to certify that the members of the Seventh-day Adventist church living in the vicinity of Logan, Iowa, did withdraw the hand of fellowship from Daniel Call at a church meeting held in Logan, Iowa, on the 5th day of January, 1879, believing him to be utterly unworthy of their confidence as a christian. We desire our fellow- men to understand that we consider him a mass of immoral character, and not worthy of a place in any church of Jesus Christ. His presence at our meetings is not desired by us until we have clear evidence of a decided change in his character, " T. D. Laeabee, Elder, "W. S. Beck, Deacon, "N. A. Beck, Clerk," was held by the supreme court of Iowa to be a libel in itself, for which the law presumes damages. Call v. Larabee et al., 60 Iowa, 313; 14 N. W. Rep., 237. 14. Communications or publications which upon proper occasions are qualifledly privileged are not privileged when made by persons actuated by malice. Defamatory words in a notice forbidding all persons froni trust- ing or harboring a wife on the husband's account are evidence of malice, and not privileged. It is no excuse or defense for publishing a libelous no- PUBLICATION IN NEWSPAPERS. 63 tice forbidding credit to a woman on her husband's account that defendant caused it to be published and paid for by direction of the husband, who was his son. Published words charging a wife with deserting her husband in his sickness are libelous in themselves. Smith v. Smith (Mich.), 3 L. R. A,, 53; 41 N. W. Rep., 499. 13. An action was brought for an alleged libel published in the Oconomo- woc " Local," in the main charge of which the plaintiff was spoken of as the " King of the Norwegians — a character so mystical and eccentric that any one would be interested to hear from him. He takes us back to the time when the star of human progress was just risen above the dark horizon of human ignorance; when the king of Babylon was changed into an ox and lived on grass. But let us doubt such things no longer when I tell you that at the present time this great king, in whose veins courses the blood of the ancient viking, has turned into an enormous swine, which lives on lame horses, etc. He still retains the faculty of speech. Great sympathy is felt for him by all the Norwegians all over the world, who keep sending him lame horses. Doctors say there is no hope for his recovery, and he will probably remain a swine the rest of his days." Of it Judge Orton said : " The precise precedent of this libel may not be found in the books, but it clearly falls within the rule of all cases in which the libel contains a gross imputation upon the character and conduct of the plaintiff, tending to bring him into ridicule and contempt." The article was held libelous in itself. Solverson v. Peterson, 64 Wis., 198; 25 N. W. Rep., 14. 1 7. An article in a newspaper, purporting to be a voluntary interview with a reporter of a newspaper, representing plaintiff as having stated to the reporter that her mother, having been bitten by a cat, was afflicted with a disease akin to hydrophobia ; that she dreaded the approach of water, suf- fered extreme pain, and was much swollen ; that she acted like a cat, purr- ing and mewing and crawling about like a cat, and trying to catch rats, and did other similar acts : and that she was almost miraculously cured of this disease by taking a certain medicine sold by defendants, who procured the publication of the article, is libelous, and the plaintiff may maintain an action thereon. Publication of anything which tends to hold a person up to contempt and ridicule is libelous and actionable. Stewart v. Swift Speciflc Co., 76 Ga., 380. 18. A publication accusing a man of slaughtering and selling for food animals which he knows to be diseased, without making their condition known to his customers, is libelous per se. Young v. Euhu (Tex.), 9 S. W. Rep., 880. 19. It is libelous to falsely publish that a certain witness in a case, ' ' whose idea of an oath appeared in yesterday's ' Times,' was arrested after his evi- dence was taken, . . . on account of his criminal evidence," and that, in default of bail, he was committed to jail, though no particular crime is charged. Godshalk v. Metzgar (Pa.), 17 Atl. Rep., 215. 20. An article in a newspaper stating that defendant had been informed that plaintiff had stolen a horse, and that he was capable of being accessory in a burglary that had been committed, is libelous per se. Rosewater ^ Hoffman (Neb.), 38 N. W. Rep., 857. 21. A publication cliarging persons with confederating to mismanage the 54 WKITl'EN DEFAMATION. affairs of a company, so as to destroy the value of its stock and injure the other shareholders, is actionable per se. Wallis v. Walker (Tex.). H S. W. Eep., 123. 22. A publication stating that a man has been arrested "on account of his criminal evidence" in a certain case is libelous. Godshalk v. Metzgar (Pa.), 33 W. N. C, 541. 23. The following article which appeared in the " Daily Inter Ocean," Chi- cago, was held to be a libel: " Recognizing the fact that many of the best students are not the richest, several years ago an association was formed to aid deserving young ladies in pursuit of knowledge. They bought and fitted up a house located convenient to the University and Woman's College, known as the College Cottage.' At one time this institution was known among the students' community by the appropriate though not elegant name of ' Obadiah's Hash' House.' For several years one O. H. acted as treasurer for the society, asking no fee for the time he spent in looking after the financial affairs of the association. So long as he held the oflSce he re- fused to give an itemized account of moneys received and expended, but at the close of each year reported the society his debtor by one hundred or two hundred dollars. Last year this respected treasurer was invited to re- sign, and his place was filled by another. Since that time the cottage has been repainted, connected with a sewer and partly refurnished ; the price of board was reduced ; and food of a better quality supplied. Their receipts were' no larger during the year than usual. They have also been involved in a lawsuit on account of the deeds of their former treasurer. But at the close of the last school year they had about one hundred dollars left in the treasury. The ladies of the association are now repairing the cottage for next term ; the house can accommodate about twenty- five. They have al- ready had a large number of applicants." Huse v. Inter Ocean Pub. Co., 12 Brad. (111.), 627. 24. The following article published in the Boston " Sunday Herald " was held to be a libel (special damage ensuing) on the Cardiff giant: "The sale of the Cardiff giant, so called, at New Orleans, for the small price of $8, recalls the palmy days of that ingenious humbug. We well remember the learned remarks made by connoisseurs in this city when it was exhibited in a vacant store quite near our oflEice. While the vulgar herd only looked on in silence, seeing a colossal figure which excited their curiosity, but which they did not attempt to explain, the Harvard professors and other learned men traced its pedigree by their knowledge of artistic history, and constructed theories as to its origin, which at once displayed their eruditiou and helped to advertise the show. But our professors and learned men were not the only victims of the sell. A distinguished professor of Yale discussed learnedly upon it in the Galaxy magazine. He demonstrated beyond a doubt that the statue was authentic, that it was antique, and that it was a colossal monolith. He ciphered it down that it was a Phoenician image of the god of Baal, and found no difiBculty in proving to his own satisfac- tion that it was brought to America by a Phoenician party of adventurers who sailed in one of the ships of Tarshish, and that it was buried by the idolaters to save it from desecration by the hordes of savages who over- powered and destroyed the Phoenicians. He accounted for several marks PUBLICATION IN NEWSPAPEKS. 55 and symbols upon the image which were unmistakably Phoenician. Not long afterwards the man who brought the colossal monolith to light con- fessed that it was a fraud, and the learned gentlemen who had indorsed its authenticity were left as naked as the statue itself." Gott v. Pulsifer, 132 Mass., 235. 25. A publication charging that a county auditor had made a statement of the financial condition of the county which was false in omitting an item of $15,000, and that it was suspected to be false in other particulars, and there was every reason to believe it a piece of financial botchwork patched up to ease popular clamor; that it was sworn to, and that an officer who would swear to one lie would swear to another, is libelous if the charges are false. Prosser v. Callis (Ind.), 19 N. E. Rep., 735. 26. A newspaper publication charging that a breach of promise suit was about to be brought against plaintiff is libelous per se, plaintiff being at the time and for a number of years before having been a married man with a f amUy ; and it is immaterial that the publication does not show him to be a married man, and that it does not appear to have been within de- fendant's knowledge. Morey v. Morning Journal Ass'n, 1 N. Y. S., 475. 27. A newspaper has no right to publish the contents of an ex parte affidavit made to obtain the plaintiff's arrest on a criminal process unless the charge contained in the affidavit is true. Cincinnati, etc., Co. v. Timber- lake, 10 Ohio St., 548. 28. The following words were printed and published of a witness in a certain cause : " ' Our army swore terribly in Flanders,' said Uncle Toby ; and if Toby were here now he might say the same of some modern swear- ers ; the man [meaning the witness] is no slouch at swearing to an old story." And it was held if they did not import a charge of perjury in the legal sense they were still libelous, as they held the witness up to contempt and ridicule as being so thoughtless or so criminal as to be regardless of the obligation of an oath, and therefore utterly unworthy of credit. Steele v. Southwick, 9 Johns. (N. Y.), 314. 29. A publication stating that the plaintiff is about to commence a suit for a libel, but that he will not like to bring it in a certain county because he is known there, is libelous. Cooper v. Greely, 1 Den. (N. Y.), 347. 30. A publication is libelous which holds the plaintiff up to the public as wanting in the characteristics and qualities of a merchant of integrity and honor, although it appears that the publication related to the plaintiff's conduct in a transaction which was unlawful, if he acted in conformity to what he supposed to be the law and usage in similar cases. Chenery v. Goodrich, 98 Mass., 334. 31. In Massachusetts the editor and publisher of a newspaper is answer- able in law, if its contents are libelous, unless the libelous matter was in- serted by some one without his order and against his will. Commonwealth V. Kneeland, Thatch. Cr. Cas., 346. 32. An editor copying a libelous article from another paper and giving his authority, expressing his disbelief of some of the charges, but neither affirming nor denying the libelous charges, may be guilty of libel, and that whether malice be shown or not. Hotchkiss v. Oliphant, 3 Hill (N. Y.), 510. 56 WEITTEN DEFAMATION. III. Publications in Books and Pamphlets, etc. 1. A declaration for libel alleged that the defendant, with intent to cause it to be believed that the plaintiff, R. W., a bookseller in Montreal, had at- tempted to defraud the revenue laws of the United States, and to bring the plaintiff into hatred, contempt and ridicule, published a pamphlet, a copy whereof was annexed to the dedlaration. The pamphlet, which advocated the substitution of a specific duty for an ad valorem duty on imported books, stated that no appraiser could be familiar with the value of different books; that accordingly English books were entered at the New York custom-house at a nominal valuation; that " some bolder spirits, impatient of the chances of detection in our principal ports, devised a simple plan " of shipping books into Canada and thence introducing them through some obscure port of entry on the -border where the ignorance of the officials presumably offered an opportunity of fraud ; that one Or two cases would serve to show the modus operandi of these transactions : That a Montreal auctioneer, by a pre- arranged plan, entered a large lot of books at a port of entry on the Canada border under a sworn invoice, on which they were greatly undervalued ; and that they wei-e seized by the revenue officers. It continued thus : "A somewhat similar but smaller transaction recently came to light. A Mr. W., who does a small book business in Montreal, has been in the habit of "shipping English books into the United States. According to his own state- ment he received intimations that trouble was in store lor him, and accord- ingly he took the precaution to assemble his principal clerks, in the presence of a witness, and give them the very suggestive instructions that invoices were thereafter to be made out honestly, both as to prices and contents. Notwithstanding this praiseworthy effort to repress the smuggling instincts of his employees, his very next shipment, consisting of nineteen cases of ■samples,' were seized on the ground of undervaluation and because a considerable number of books were not even borne upon the invoices. Mi-. W. thereupon, as an injured innocent, complains that he is the victim of a conspiracy set on foot by envious booksellers." Held, on demurrer, that the pamphlet was a libel. Worthington v. Houghton, 109 Mass., 481. IV. PosTma Placards, Handbills, Notices, etc. 1. Two placards were placed near together on a piece of furniture stand- ing in front of a store, one with the words " this was taken back from Dr. Woodling, as he would not pay for it; for sale at a bargain," and the other with the words, " Moral : beware of dead beats." Held, that the two read together, as they were undoubtedly intended to, constitute a gross libel, and are clearly defamatory on their face. Woodling v. Knickerbocker et al 31 Minn., 268; 17 N. W. Rep., 386. V. Entries Made in Books of Corporations, Associations, etc. 1. The following words written in a church book, "a report raised and circulated by A. B. against brother C, stating that he made him pay a note twice, and proved by A. B. to be false," were held to be libelous. Shelton V. Nance, 7 B. Mon. (Ky.), 128. 2. A county medical society has not the power to expel or remove a LBTTEESj ETC. 57 member for tho reason that he did not possess the requisite qualifications, and obtained his admission by false pretenses. In such a case the society- is without jurisdiction, and a resolution adopted and entered among its proceedings expelling a member for such cause is a libel, and the member introducing it is liable to an action. Fawcett v. Chaiies, 13 Wend. (N. Y.), 473. 3. The words "this company, for good and sufficient reasons, has resolved to dismiss D. D. Maynard from its service," when entered on its books by an insurance company, and published concerning one of its agents, are not libelous per se, but may sustain an action for libel upon a complaint which properly avers that the words were intended by the defendant to be under- stood as imputing wrong-doing to the plaintiffs, and that they were in fact so understood by those who read them. A complaint upon such words suf- ficiently avers that the words were intended by the defendant to be under- stood, and were understood by those who read them, to impute dishonor to the plaintiff, if it avers that the defendant, intending to injure the plaint- iff, falsely and maliciously published the libelous words, thereby meaning and wishing to have it understood that the plaintiff was dishonest ; and that the libel was read by the acquaintances of the plaintiff and business men, who, by reason thereof, are unwilling to employ the plaintiff, and believe that he is dishonest and unfit to be trusted. Maynard v. Fireman's Fund Ins. Co., 47 Cal., 207. VI. Letters, etc. 1. Although a letter be written in good faith as a confidential communi- cation for the purpose of obtaining information to which the writer is properly entitled, yet if it contain comments of a slanderous nature, refer- ring to an individual concerning whom no information was expected or desired, and foreign to the avowed object for which it was written, it will be libelous. Cole v. Wilson, 18 B. Mon. (Ky.), 212. 2. Where a member of a school district wrote a letter to the school com- mittee accusing a teacher of a want of chastity and remonstrating against her appointment, it was held that the communication was libelous if shown to have been mad^ with express malice or without probable cause. Bod- well V. Osgood, 3 Pick. (Mass.), 379. 3. Defendant wrote a letter charging plaintiff, substantially, with selling poisonous and impure milk. It was held that, this being a misdemeanor, the words were actionable per se; but that, even if the facts stated did not necessarily show the milk to be impure, if they cast such a suspicion on it that cheese factories refused to buy it, special damage was shown. Brooks V. Harrison, 91 N. Y., 83. 4. If A. writes a libelous letter in B.'s name to C, it is a libel upon B. as well as upop C. if it contains any language which would subject B., had he written it, to public hatred and contempt. State v. Hollon, 13 Lea (Temi.), 483. 5. Where a letter contained the following words: "It is wondered at how he can live in more than ordinary style, as he does, while having merely the honorable receipts of his agency to live upon," and other por- tions of the letter accused him of charging unusual rates, it was properly 58 -WEITTEN DEFAMATION. left to the jury to say whether it contained a charge of embezzlement or larceny. Edwards v. Chandler, 14 Mich., 471. C. Under code of Virginia, 1873, chapter 145, section 2, providing that " all words which from their usual construction and common acceptation are construed as insults, and tend to violence and breach of the peace, shall be actionable," a letter sent tb a neighbor's wife, falsely intimating that she has invited the writer to meet her, and proposing a private interview on a street corner,at night, or in his office on the Sabbath day, constitutes a good cause of action. EoUand v. Batchelder (Va.), 5 S. E. Eep., 695. VII. Effigies, etc. 1, An efflgy bearing the words, " By George, the old liar," hung upon a tree in front of the prosecutor's place of business, and intended, and under- stood by his neighbors to be intended, to represent him, is a libel. Johnson V. Commonwealth (Pa.), 14 Atl. Eep., 425. VIII. Genebal Digest of Engijsh Cases. ■ 1. It is libelous to write and publish of a man that he is " the most artful scoundrel that ever existed," "is in evei*y person's debt," that " his ruin cannot be long delayed," that "he is not deserving of the slightest commis- eration" (Eutherford v. Evans, 6 Bing., 451 ; 8 L. J. (O. S.), C. P., 86); "a dishonest man" (Per cur. in Austin v. Culpepper, Skin., 124; 3 Show., 314); " a mere man of straw " (Eaton v. Johns, 1 Dowl., N. S., 602); " an itchy old toad " (Villers v. Monsley, 3 Wils., 403); " a desperate adventurer," as- sociation with whom "would inevitably cover" a gentleman " with ridi- cule and disrepute" (Wakley v. Healey, 7 C. B., 591; 18 L. J., C. P., 241); that " he grossly insulted two ladies " (Clement v. Chivis, 9 B. & C, 173 ; 4 M. & E., 127); that "he is unfit to be trusted with money" (Cheese v. Scales, 10 M. & W., 488; 13 L. J.. Ex., 13; 6 Jur., 958); that " he is insolv- ent and cannot pay his debts " (Metropolitan Omnibus Co. v. Hawkins, 4 H. & N., 87; 38 L. J., Ex., 201; 5 Jur. (N. S.), 226; 7 W. E., 265; 33 L. T. (O. S.), 381); that " he was once in difficulties," though it is stated that such dif- ficulties are now at an end (Cox v. Lee, L. E., 4 Ex., 284; 38 L. J., Ex., 219); "an infernal villain " (BeU v. Stone, 1 B. & P., 831); "an impostor" (Cooke V. Hughes, E. & M., 113; Campbell v. Spottiswoode, 3 B. & S.,' 769; 32 L. J., Q. B., 185; 9 Jur. (N. S.), 1069; 11 W. E., 569; 8 L. T., 301); "a great defaulter " (Warman v. Hine, 1 Jur., 830) ; " a hypocrite" (Thorley v. Lord Kerry, 4 Taunt., 355; 3 Camp., 314, n.); "a frozen snake" (Hoare v, Silverlock (No. 1, 1848). 13 Q. B., 634; 17 L. J., Q. B., 306; 13 Jur., 695); " a rogue and a rascal " (Per Gould, J., in Villers v. Monsley, 3 Wils., 403). 2. It is libelous to write of a lady applying for relief to a charitable soci- ety that her claims are unworthy, and that she spends all the money given her by the benevolent in printing circulars filled with abuse of the society's secretary (Hoare v. Silverlock (No. 1, 1848), 13 Q. B., 634; 17 L. J., Q. B., 306; 12 Jur., 695); to charge the plaintiff with having published a libel (Brookes v. Tichborne, 5 Exch., 929; 20 L. J., Ex., 69: 14 Jur., 1123); so to state in writing that the plaintiff is insane, or that her mind is affected, ia libelous, if false (Morgan v. Lingen, 8 L. T., 800); for the manager of a GENERAL DIGEST OF ENGLISH CASES. 59 private lunatic asylum to write of a lady, " I have been to her house this morning and seen her. I think it my duty to infoi-m you it is imperative that immediate steps to secure her should be taken" (Weldon v. Winslow, Times for March U-19, 1884). 3. Ironical praise may be a libel; e. g., calling an attorney "an honest lawyer" (Boydell v. Jones, 4 M. & W., 446; 7 Dowl., 310; 1 H. & H., 408; Sir Baptist Hicks' Case, Hob., 215; Poph., 139); that he is "at the head of a gang of swindlers," that he is " a common informer, and has been guilty of deceiving and defrauding divers persons with whom he had dealings " (I' Anson v. Stuart, 1 T. E., 748; 2 Smith's L.-C. (6th ed.), 57; R. v. Saund- ers, Sir Thos. Raym., 201); that the plaintiff sought admission to a club and was black-balled, and bolted the next morning without paying his debts (O'Brien v. Clement, 16 M. & W., 159; 16 L. J., Ex., 76; 4 D. & L., 343); to write and publish of a landlord that he put in a distress in order to help his insolvent tenant to defraud his creditors (Haire v. Wilson, 9 B. & C, 648; 4 M. & R., 605); for a defendant to write a letter charging his sister with having unnecessarily made him a party to a chancery suit, and adding, " It is a pleasure to her to put me to all the expense she can " (Fray v. Fray, 17 C. B., N. S., 603; 34 L. J., C. P., 45 ; 10 Jur. (N. S.), 1153); to impute to a Presbyterian "gross intolerance" in not allowing his hearse to be used at the funeral of his Roman Catholic servant (Teacy v. McKenna, Ir. R., 4 C. L., 374). It is prima facie libelous to charge the plainjiff with ingrat- itude, even though the facts on which the charge is based be stated, and they do not bear it out (Cox v. Lee, L. R., 4 Ex., 284; 38 L. J., Ex., 219); to state in a newspaper of a young nobleman that he drove over a lady and killed her and yet attended a public ball that very evening (although this only amounts to a charge of unfeeling conduct) (Churchill v. Hunt, 1 Chit., 480 ; 2 B. & A. , 685) ; to write and publish of a lady of high rank that she has her photograph taken incessantly, morning, noon and night, and receives a commission on the sale of such photographs (R. v. Rosenberg, Times for Oct. 27, 28, 1879) ; to impute or imply that a grand jury have found a true bill against the plaintiff for any crime (Harvey v. French, 1 Cr. & M., 11); to publish a highly-colored account of judicial proceedings, mixed with the reporter's own observations and conclusions upon what passed in court, containing an insinuation that the plaintiff had committed perjury (Stiles V. Nokes, 7 East, 493 ; same case sub nomine Carr v. Jones, 3 Smith, 491) ; to write and publish of the editor of a paper that he is "a convicted felon '' and "a felon editor," even although the fact is that he was convicted of felony, and underwent a term of imprisonment with hard labor (Leyman v. Latimer and others, 3 Ex. D., 15, 352; 46 L. J., Ex., 765; 47 L. J., Ex., 470; 35 W. R., 751 ; 26 W. R., 305 ; 37 L. T., 360, 819) ; to write about the plaint- iff's "defalcations'' (Bruton v. Downes, 1 F. & F., 668); to call a manufact- urer a "truckmaster," for this implies that he has been guilty of practices in contravention of the Truck Act (Homer v. Taunton, 5 H. & N., 661 ; 29 L. J., Ex., 318; 8 W. R., 499; 3 L. T., 512.) 4, It is libelous to write and publish of the plaintiff the following words: ' ' Digby has had a tolerable run of luck. He keeps a well-spread side-board, but I always consider myself in a family hotel when my legs are under his 60 WEITTEN DEFAMATION. table, for the bill is sure to come in sooner or later, though I rarely dabble in the mysteries of ecarti or any other game. The fellow is as deep as Crockford, and as knowing as the Marquis. I do dislike this leg-al profes- sion" (Digby V. Thompson and another, 4 B. & Ad., 831; 1 N. & M., 485); to write and publish of a clergyman that he poisoned foxes on the estate of Sir M. S., in a fox-hunting county, and had been hung up in effigy in con- sequence of such "dastardly behavior " (R. v. Cooper, 8 Q. B., 533; 15 L. J., Q. B., 206: Foulger v. Newcomb, L. E., 3 Ex., 337; 36 L. J., Ex., 169; 15 W. R., 1181 ; 16 L. T., 595); to publish in a newspaper a story of the plaintiff calculated to make him ludicrous, though he had previously told the same story of himself. Cook v. Ward, 6 Bing., 409; 4 M. & P., 99. 5. But it is not defamatory to write of another that he js "Man Friday " (Forbes v. King, 1 Dowl., 673; 3 L. J., Ex., 109); for, as Lord Denman, C. J., observes in Hoare v. Silverlock (No. 1, 1848), 13 Q. B., 636; 17 L. J., Q. B., 308 : " That imputed no crime at all. The ' Man Friday,' we all know, was a very respectable man, although a black man, and black men have not been denounced as criminals yet." The law is otherwise in the United States. King v. Wood, 1 N. & M. (S. C), 184. C. It is a libel to write and publish of a married man that his conduct to- wards his wife is so cruel that she was compelled to summon him before the magistrates (Hakewell v. Ingram, 3 C. L. Rep. (1854), p. 1397); "to paint a man playing at cudgels with his wife." Per Lord Holt, C. J., in Anon., 11 Mod.. 99. See Du Bost v. Beresford, 3 Camp., 511. 7. It is a libel on a married lady to assert that her husband is petitioning for a divorce from her. R. v. Leng, 34 J. P., 309. 8. It is a libel for a husband to publish in writing that A. has committed adultery with his wife. Per Kelly, C. B., in Brown v. Brine, 1 Ex. D., 5; 45 L. J., Ex., 139; 24 W. R., 177; 33 L. T., 703. 9. It is libelous to charge in writing a man with having cheated at dice or on the turf, although all gambling and horse-racing transactions are ille- gal or at least void. Greville v. Chapman, 5 Q. B., 731 ; 13 L. J., Q. B., 173; 8 Jur., 189; D. & M., 553; Yrisarri v. Clement, 3 Bing., 433; 11 Moore, 308; 3 C. & P., 223. 10. It is libelous to call a man a "black-leg" or a "black sheep." But there should be an averment that these words mean a person guilty of habitually cheating and defrauding others. M'Gregor v. Gregory, 11 M. & W., 387: 13 L. J., Ex., 204; 3 Dowl. (N. S.), 769; O'Brien v. Clement, 16 M. & W., 166; 16 L. J., Ex., 77. And see Bamett v. Allen,l F. & F., 135; 37 L. J., Ex., 413; 4 Jur. (N. S.), 488; 3 H. & N., 376. 11. The court of exchequer chamber thought the words "If Mrs. W. chooses to entertain the duke of Brunswick she does what very few will do," a libel on the duke. Gregory v. The Queen (No. 1), 15 Q. B., 957- 15 Jur., 748; 5 Cox, C. C, 247. 12. Where the defendant posted up in a public club-room the following notice: "The Rev. J. Robinson and Mr. J. K., inhabitants of this town, not being persons that the proprietors and annual subscribers think it proper to associate with, ai-e excluded this room," this was held no libel (sed qucere). Robinson v. Jermyn, 1 Price, 11 ; Odgers on L. & S., 23. WHAT IS NOT LIBELOUS ILLUSTEATIONS. 61 § 4. What is Not Libelous — Illustrations.— Digest of American Cases. 1. A publication speaking of "the remarkable letter of W., giving his so-called reasons for falsely asserting that L.'s nomination was secured by- corrupt means," is not libelous. The words "falsely asserting," when taken in connection with the subject-matter, mean no more than that the proposition which W. attempted to prove was false; that is, that the con- clusion or inference which he drew was not justified by the facts, and do not constitute an attack on his veracity. Walker v. IJawley, 56 Conn., 559. 2. The word " crank" has no necessary defamatory meaning; and for a newspaper to publish an item that a certain pamphlet written by a lawyer who was also the author of a text-book on the law of patents was '-' tlie efiEusion of a crank " is not actionable without a charge in the declaration of the alleged defamatory meaning of the word by an appropriate innu- endo, and an averment and proof of special damage. Walker v. Tribune Co., 29 Fed. Rep., 837. 3. An order by a railroad company to its agents as follows : " You are instructed to ship no lumber or merchandise of any description to Mr. J. L." Allen . . . except when all freight and charges are paid," and a request to a connecting road to make a like order, does not constitute libel ; there being no malice imputed. Allen v. Cape Fear & Y. V. R'y Co, (N. C), 6 S. E. Eep., 105. 4. If a publication does not contain a libelous charge, no action will lie therefor, no matter what its author intended. Hosier v. StoU (Ind.), 20 N. E. Eep., 753. 5. Where a member of a church has consented that the church should investigate any complaint which might be preferred against him in writ- ing by a person not a member, it was held that the complaint would not be libelous unless shown to have been made without probable cause or as a pretense or cover for the design of slandering. Eemmington v. Congdon, 2 Pick. (Mass.), 315; Bradly v. Heath, 12 Pick. (Mass.), 168. 6. Where the editor of a sectarian newspaper publishes an obituary no- tice, in which it is stated that the deceased never used pr6fane language, the intention of the notice being to promote certain religious views, it is the right of the editor of another sectarian newspaper, if he believes such notice to be injurious, to state in his newspaper that the deceased was a profane swearer, if such was the case, and if such statement was made simply to counteract what is believed to be the mischief of the notice. Cora. v. Batch- elder, Thach. Mass. Or. Cas., 191. 7. A publication which states that a certain firm unfairly procured a lease of certain premises, and then characterizes the transaction with epithets, is not a libel in itself. Donaghue v. Goffy, 53 Conn., 43. 8* Where a plaintiflf demands a bill of particulars he cannot base an ac- tion for a libel upon anything contained in it. Puzel v. Tausey, 52 N. Y. Super. Ct., 79. 9. In Dakota it seems that v/ords charging one with making false aflSda- vits do not necessarily charge perjury, and will not in themselves support an action for libel. Casselman v. Windslip, 3 Dak., 293. 62 WEITTEN DEFAMATION. 10. A publication signed bj the defendant, which in effect charges that, because he had quit buying of plaintiff, plaintiff had procured a lease of the premises, whereof defendant was a tenant at will, and had turned defend- ant out, and that because of such contract no one would do business with plaintiff, is not a libel in itself, and plaintiff can recover nothing without proof of special damages. Donaghue v. Goffy, 54 Conn., 257. 11. In a suit against a railroad company the complaint stated that the company had sent notices to its agents instructing them to receive no freight from the plaintiff unless the charges were prepaid, and that this order was enforced against the plaintiff alone and not against other ship- pers of freight. Held, that no cause of action -was stated. Allen v. Cape Fear & Yadkin Valley E. E. Co., 100 N. C, 397. 12. It is not libelous in itself to charge that a person without considera- tion has obtained notes from one whose mental condition incapacitated him from' business. Trimble v. Anderson, 79 Ala., 514. 13. It is not libelous in itself to charge a grain dealer with reducing the price of grain by entering into a combination. Adsom v. Piper, 66 Iowa, 694. 14. If the employer of a large number of men posts a notice declaring that any employee who trades with a certain merchant will be discharged, there being nothing libelous in the notice, no action lies by the merchant, however injurious and malicious the notice may be. [Freeman and Tur- ner, JJ., dissenting.] Payne v. Western & Atlantic R. R. Co., 13 Lea (Tehn.), 507; S. C, 49 Am. Rep., 666. 15. Libel cannot be predicated of a circular of a commercial agency which in itself contains nothing libelous, but which requests a call at the office of the agency for an explanation. Kingsbury v. Bradstreet Co., 35 Hun (N. Y.), 312. 16. In a suit for libel it appeared that defendant, at a hearing before the governor, presented to him and to three other persons copies of a pamphlet prepared by a third person and bearing upon the matter in hand. This pamphlet contained a reflection upon plaintiff's character — plaintiff's name, however, not being given. There was no express malice, and defendant was ignorant of the precise contents of the pamphlet. Held, that the ac- tion was not maintainable. Woods v. Wiman, 47 Hun (N. Y.), 362. 1 7. A. expressed an opinion, founded on the statement of others, that B. had maliciously killed his horse, and was arraigned therefor by B. be- fore the church. In self-defense A. produced the certificates of the indi- viduals upon whose authority he made the statement. In a suit for libel it was held that in the absence of proof of notice the action would not lie. Dum v. Winters, 2 Humph. (Tenn.), 512. 18. The publication in a newspaper of an article charging that a public dinner provided by the plaintiff, a caterer, was bad, and "the cigara vile, and the wines not much better," even if untrue, does not attack the indi- vidual, and is not actionable, where the plaintiff does not prove special damage. Dooling v. Budget Pub. Co. (Mass.), 10 N. E. Rep., 809. 19. It is not libelous to publish of a professional man 'Hhat he has re- moved his office to his house to save expense." In order to maintain an action for libel it must appear that the plaintiff has sustained ioma soeoial WHAT IS NOT LIBELOUS — ILLUSTEATIONS. 63 loss or damage resulting from the publication complained of, or the charge itself must be such that the court can legally presume that the party has been injured in his reputation or business, or subjected to public scandal, in consequence thereof. Stewart v. Minnesota Tribune Co. (Minn.), 41 N. W. Eep., 457. 20. A complaint setting out as libelous a statement that the legislature had passed a law prohibiting baby-farming, and that a copy of it had been served on plainti£f, with a notification by a certain society that he must comply with its terms ; that he at once made an application for a license to baby-farm to the board of health, and the society as promptly interposed a protest, does not state a cause of action, as the alleged libel does not charge that plaintiff was ever engaged in baby-farming. Ramscar v. Gerry, 1 N. Y. S., 635. 21. Where the language in an alleged libelous chai-ge is in itself so vague and uncertain that it could not have been intended to be used in reference to any particular person or persons, it is not actionable. Petsch v. St. Paul Dispatch Printing Co. (Minn.), 41 N. W. Rep., 1034. 22. When an alleged libelous publication consists of several epithets, de- fendant may be permitted to disclaim any intention to apply certain of the epithets to plaintiff, and to justify the others. Arnott v. Standard Ass'n (Conn.), 3 L. R A., 69; 57 Conn., 86. 23. Plaintiff purchased goods of defendant's agent and advertised them for sale. Defendant inserted in another paper, published in the same town, an advertisement as follows: " Caution. An opinion of Shaw knit hose should not be formed from the navy-blue stockings advertised as first quality by Messrs. B. & Co. [plaintiff] at twelve and one-half cents, since we sold that firm some lots which were damaged in the dye-house." Held, that the language of defendant's advertisement, giving to it its natural signification, was not libelous. Bcjnton v. Shaw Stocking Co. (Mass.), 15 N. E. Rep., 507. 24. Where an action was brought for maliciously defaming the plaintiff in a petition to the legislature for redress complaining of the attorney-gen- eral, it appeared that the defendant had reasonable and probable cause of complaint, though the charge was not well-founded in fact. It was held an action for libel would not lie. Reed v. Delorme, 2 Brev. (S. C), 76. 25. It is not libelous to publish of a professional man "that he has re- moved his oflSce to his house to save expense." Stewart v. Minnesota Trib- une Co. (Minn.), 41 N. W. Rep., 457. 26. Plaintiff, during a political campaign, published a letter with the pur- pose of proving that a candidate for governor had procured his nomination by improper practices. Defendants published an article in their newspaper, alluding to the letter as " that remarkable letter of [plaintiff], giving his so- called reasons for falsely asserting that Mr. [L.'s] nomination was secured by corrupt means." Held, that the defendants' article did not impute wil- ful misstatement of a fact to plaintiff, but that it amounted to no more than the assertion that plaintiff's conclusions in said letter were erroneous, and hence was not libelous. Walker v. Hawley (Conn.), 16 Atl. Rep., 674. 27. A banker when remitting the proceeds of a note sent to him for col- lection appended to his letter the words "confidential. Had to hold over for a few days for the accommodation of L. & H.," who were the makers. 64 WEITTEN DEFAMATION. In a suit it was held that the words have not necessarily an injurious mean- ing. Lewis V. Chapman, 16 N. Y., 369. 28. A notice in a newspaper advising applicants for board at a specifleJ street and number to " inform themselves before locating there as to table, attention and characteristics of the proprietors " is not libelous on its face. Wallace v. Bennett, 1 Abb. (N. Y.)N. Cas., 478. 29. The defendant, who was the editor of a newspaper, was owing the plaintiff some money upon the award of arbitrators, in spealdng of which and of the plaintiff in his paper he said : "The money will be forthcoming on the last day allowed by the award ; but we are not disposed to allow him to put it into Wall street for shaving purposes before that period." The article was adjudged not to be a libel. Stone v. Cooper, 3 Den. (N. Y.), 293. 30. An affidavit made before a magistrate to enforce the law against a person accused therein of a crime does not subject the accuser to an action for libel, though the affidavit be false and insuflacient to effect its object. Hartsock v. Eeddick, 6 Blackf. (Ind.), 355. 31. For the words the " Mississippi bard foameth," published in a news- paper, the person alluded to could not maintain an action for libel without an allegation and proof that the words were used in a defamatory sense. Kinyon v. Palmer, 18 Iowa, 377. 32. The term "blackmailing" is not necessarily libelous, and its con- struction is a question for the jury. Edsall v. Brooks, 3 Rob. (JT. Y.), 384. 33. It has been held not to be libelous to charge a judge with improprie- ties which would be no cause of impeachment or address to remove him. Bobbins v. Treadway, 3 J. J. Marsh. (Ky.), 540. In Maryland, to impute a crime punishable only by fine, though the statute authorizes commitment for non-payment of the fine. . Wagaman v. Byers, 17 Md., 183. To publish of a druggist: "the above druggist, in the city of Detroit, refusing to con- tribute bis mite with his fellow-merchants for watering Jefferson avenue, I have concluded to water said avenue in front of Pierre Feller's store for the week ending June 37, 1846." People v. Jerome, 1 Mich., 142. To charge a person with having "forged words and sentiments for Silas Wright wliich he never uttered." Cramer v. Noonan, 4 Wis., 231. It has been held not to be libelous to call a man a "crank." Walker v. Tribune Co., 29 Fed. Rep., 827. Or to charge a man with bribing voters in Indiana. Heil- man v. Shanklin, 60 Ind., 434. 34. It has been held not to be libelous to publish of a professional man, "He has removed his office to his house to save expense." Stewart v. Minn. Trib. Co. (Minn.), 41 N. W. Rep., 457. Or where the defendant, a cashier of a bank, in returning a draft wrote, " We return unpaid draft of J. V. V. P. for $11. He pays no attention to notices." Platto v. Geilfuss, 47 Wis., 491; 3 N. W. Rep., 1135. 85. Where the defendant, a retail seller of liquor, issues a circular to other retail sellers of his town, charging that plaintiffs, wholesale sellers of liq- uors, being vexed by his having ceased to buy from them, overbid him in the matter of a lease and turned him out of his place of business, plaintiffs, in the absence of special damages, have no cause of action. Donaghue v. Gaffy (Conn.), 7 Atl. Rep., 653. 86. The words " wanted E B. Z., M. D., to pay a drug bill" are not libel- WHAT IS NOT LIBELOUS ILLTJSTEATIONS. 65 ous on their face, but may become so from circumstances under which they are published. Zier v. Hoflin, 33 Minn., 60; 21 N. W. Eep., 863. 37. It is no Ubel upon a dealer in coal in L. who had advertised genuine Franklin coal for sale to publish the following advertisement: " Caution. The subscribers, the only shippers of the true and original Fi-anklin coal, notice that other coal dealers in L. than our agent J. S. advertise Franklin coal. We take this method in cautiouing the public of buying of other parties than J. S. if they hope to get the genuine article, as we have neither sold nor shipped any Franklin coal to any party in L. except our agent J. S." Boynton v. Remington, 3 Allen (Mass.), 397. 38. Where, in a sentence of excommunication from a church read by the pastor on Sunday, in the presence and hearing of the congregation, it was recited that the offender had " clearly violated the seventh command- ment," and in a subsequent part of the sentence it was declared " that this church does now as always bear its solemn testimony against the sin of fornication and uncleanness," it was held that the charge of violating the seventh commandment did not import the crime of adultery in its legal and technical sense as an indictable offense, and was not libelous. Farnsworth V. Storrs, 5 Cush. (Mass.), 413. 39. Where two persons were charged in a bill in equity with having fraudulently altered certain instruments without specifying the person who ■did it, it was held in an action of slander by one of the parties against the complainaints in the bill in equity that either of the parties charged might sue, but that the charge in the bill was not a libel. Forbes v. Johnson, 11 B. Mon. (Ky.), 48. 40. The plaintiff, a physician, prepared for publication an account of a surgical operation performed by him, and, by an error on the part of the printer, he was described as having performed the operation of removing a " pottytuber " from the " hypogostroom " of a Mr. Smith. There was no evidence to show that the alteration was the result of inattention or malice. It was held that it could not be made the basis of damages for an action for malicious libel brought by the writer of the article. SuUings v. Shakes- peare (Mich.), 9 N. W. Eep., 451. Digest of English Cases. 1. It has been held not to be libelous to write' and publish of the plaintiff words implying that he endeavored to suppress dissension and discourage sedition in Ii-eland ; for, though such words might injure him in the minds of criminals and rebels, they would not tend to lower him in the estimation of right-thinking men. Mawe v. Pigott, Ir. R., 4 O. L., 54. And see Clay v. Roberts, 9 Jur. (N. S.), 580 ; 11 W. R., 649 ; 8 L. T., 897. So a notice sent by a landlord to his tenants: "Messrs. Henty & Sons hereby give notice that they will not receive in payment any checks drawn on any of the branches of the Capital and Counties Bank," is not defamatory. Capital and Counties Bank v. Henty & Sons (H. L.), 7 App. Cas., 741 ; 53 L. J., Q. B., 283; 31 W. R., 157; 47 L. T., 663; 47 J. P., 314. 2. The plaintiff was a certificated art master, and had been master at the Walsall Science and Art Institute. His engagement there ceased in June, 1874, and he then started and became master of another school which was 5 66 WRITTEN DEFAMATION. called "The Walsall Government School of Art," and was opened in Au- gust./ In September the following advertisement appeared in the Walsall " Observer," signed by the defendants as chairman, treasurer and secretary of the institute respectively : " Walsall Science and Art Institute. The public are informed that Mr. Mulligan's connection with the institute has ceased, and that he is not authorized to receive subscriptions on its behalf." Held, that this was no libel ; and that no innuendo could make it so ; for the words were not capable of a defamatory meaning. Mulligan v. Cole, L. R., 10 Q. B., 549; 44 L. J., Q. B., 153; 33 L. T., 13, 3. It is not libelous to publish in a newspaper that the plaintiff has sued his mother-in-law in the county court (Cox v. Cooper, 13 W. E., 75; 9 L. T., 329) ; or to send a circular to the members of a certain society stating that the plaintiffs are not proper persons "to be proposed to be balloted for as members thereof." Goldstein v. Foss, 6 B. & O., 154 (Ex. Ch.); 4 Bing., 489; 3 C. & P., 253; 3 Y. & J., 146; 1 M. & P., 403. 4. It is not libelous to print and circulate a handbill : " B. Oakley, of ChilUngton, Game and Rabbit Destroyer, and his wife, the seller of the same in country and town," unless it be averred and proved that the words im- puted some illegal or improper slaughter or sale of game or rabbits (R. v. James Yates, 13 Cox, C. C, 233); or to write and publish in the "Times:" " We are requested to state that the honorary secretary of the Tichborne Defense Fund is not and never was a captain in the royal artillery, as he has been erroneously described," for these words do not impute that the plaintiff had so represented himself. Hunt v. Goodlake, 43 L. J., C. P., '54; 29L. T.,473. 5. Defendant posted up several placards which ran thus : " W. Gee, Solic- itor, Bishop's Stortford. To be sold by auction, if not previously disposed of by private contract, a debt of the above, amounting to £3,197, due upon partnership and mortgage transactions." Bramwell, B., told the jury that in his opinion this was no libel, " because it was not libelous to publish of another that he owed money," and the jury returned a -verdict of not guilty. R. V. Coghlan, 4 F. & F., 816. LIBELS CLASSIFIED. § 5. (1) libels on Private Persons. — ISTo man can reason- ably set his own character at a higher estimation than the law puts upon it. Acting in the same spirit in which in all criminal cases it presupposes a party innocent till proved to be guilty, it takes the honesty and morality of every member of the com- munity as a reasonable presumption ; and therefore, deeming his good character as a part of his personal rights, will not suffer him to be molested or assailed therein, except in the same manner by which his property may be divested — that is, by due judgment and conviction of law. No man has a right of being at once the accuser and judge of another; or of measuring out the degree of punishment in LIBELS CLASSIFIED. 67 reproachful accusation which, his passions may deem an im- puted crime to merit. Written defamation has already been explained to be the injurious detraction of any one by writing or equivalent sym- bols; in the language of Lord Coke, scriptis aut sine scriptis. The word libel is a technical word — a word which derives its meaning rather from its use than its etymology. It was ob- served by Lord Camden : i " There is no other name but that of libel applicable to the offense of libeling, and we know the offense specifically by that name as we know the offenses of horse-stealing, forgery, etc., by the names which the law has annexed to them." ^ Libels affecting the character of private persons may be classified according to their objects : L Libels which impute to a person the commission of a crime, IL Libels which have a tendency to injure him in his ofSce, profession, calling or trade. ni. Libels which hold him up to scorn and ridicule, and to feelings of contempt or execration, impair him in the enjoy- ment of general society, and injure those imperfect rights of friendly intercourse and mutual benevolence which man has with respect to man. J. Libels which impute to a person the commission of a crime. § 6. The Sulbject Defined. — Any publication which imputes to a person the commission of a criminal offense, which will, in case the imputation or charge is true, subject the party charged to punishment for a crime involving moral turpitude, or subject such party to an infamous punishment, is actionable in itself when published orally, and hence when expressed otherwise than by oral language is a libel.' , §7. Illustrations. — Digest op English Cases. 1. Writings, in order to be libelous under this head, must distinctly im- pute crimes and misdemeanors which are recognized as such and are pun- ishable by law; as to charge a man with felony, BuUer, N. P., p. 9. iTheKingv. Wilkes, 3 Wilson, 151. 'Brooker v. Coffin, 5 Johns. (N. 2 Holt on Libel, 188. Y.), 190; Cooley on Torts, 146. bo WEITTEN DEFAMATION. 2. Thus, for example, no action will lie for publishing of any man that he is forsworn, unless it be added that he was so forsworn in a judicial proceeding ; though the allegation of perjury is the same in both cases, but in the one it is recognized as a crime by the law, and in the other is mere moral depravity. But the allegation in writings of the words "he is per- jured " is libelous ; for these words, being the legal. term for the crime, shall be intended to mean that he is forsworn in a judicial proceeding. 4 Rep., 15; 3 Bulst., 150; 3 Inst., 156; Holt v. Schoiaeld, 6 T. R., 691; Holt on Libel, 189. 3. It was holden that an action for a libel could not be maintained for exhibiting a bill to the queen (petitions to the sovereign being at that time in the ordinary course of legal proceeding) charging the plaintiflE to have recovered 400Z. of the defendant by perjury, forgery an^d cozemng. "Be- cause," said the court, "the queen is the fountain of justice, and all her subjects may lawfully resort to her to complain ; but if they will divulge the contents to the disgrace of the person, it ii3 actionable." Hare v. Mellor, 3 Lev., 138, pi. 187. 4. It may be laid down, therefore, as the law in all cases that the allega- tion of any act which the law recognizes and punishes as a crime is libel- ous. But, on the other hand, the allegation of acts which, though crimes, are not so recognized by the law, or the allegation of them in such a man- ner that the terms employed do not meet the legal designation of the crime, are not libels, at least under this head. Thus, an action does not lie for publishing these words of J. S. : " He has delivered false evidence and un- truths in his answer to a bill in chancery; " for as some things in a bill in chancery are not material to the matter in dispute between pie parties, it is no perjury, although such things be not truly answered. 1 Roll. Abr., 70; 3 Inst., 167; Holt on Libel, 189. II. Libels which have a tendency to injure a person in his office, professioV', calling or trade. § 8. The General Doctrine.— Every man has a right to the fruits of his industry, and by a fair reputation and character in his particular business to the means of maliing his industry fruitful. At common law, therefore, an action lies for words which slander a man in his trade, or defame him in an honest calling; as, to say of a merchant or tradesman he is a bank- rupt.i So to charge a man with deceit in his trade, or other malpractice.^ But words not actionable in themselves did not become actionable when spoken of a man in his trade, un- less it were shown, by a colloquium or special averment, that they touched him therein.' In regard to defamation which affects a man in his trade, 1 1 Rol., 61, pi. 35, 40. 3 Ray., 75. 2 1 Rol., 59, 63. LIBELS CLASSIFIED. 69 the same rule applies to written as to parol slander; though defamation, when written, may be actionable under certain circumstances, when the same words, if spoken, would not.' § 9. Libels on Persons in Office.— It is libelous to impute to any one holding an office that he has been guilty of improper conduct in that office, or has been actuated by wicked, corrupt or selfish motives, or is incompetent for the post. So it is libel- ous to impute to a member of any of the learned professions that he does not possess the technical knowledge necessary for the proper practice of such profession, or that he has been guilty of professional misconduct. And it is not necessary, as it is in cases of slander, that the person libeled should at the time still hold that office or exercise that profession; it is ac- tionable to impute past misconduct when in office.^ § 10. Illustration. — An Old English Case (1731). In an action upon the case for a libel, the plaintiff declared that he had obtained a patent to be gunsmith to his royal highness, the Prince of Wales, and that it having been advertised in one of the public newspapers, called the " Craftsman," that he had the honor of making for and presenting to his royal higliness a gun of two feet six inches long in the barrel, which would carry as far as guns of a foot longer in the barrel, made by any other per- son of that trade ; that it was so much approved that the plaintiff had the honor of kissing his royal highness' hand ; and that the defendant falsely and maliciously, and with an intent to scandalize the plaintiff in his art and profession, did, 4th January, 1741, in the said public paper, publish and ad- vertise of the plaintiflf, concerning his art and profession, inter alia, to this purpose : " Whereas there was an account lately in the ' Craftsman,' of Mr. John Harman. gunsmith, his making guns of two feet six inches in barrel, to exceed any made by others of a foot longer (with wliom it is supposed he is in fee), this is to advise all gentlemen to be cautious, the said gun- smith not daring to engage with any other artist in town, nor even did he make any experiments but out of a leather gun, as any gentleman may be informed at the Cross Guns in Long-Acre," being the defendant's shop, by which the plaintiff lost several customers, to his damage. After not guilty pleaded, there was a verdict for plaintiff, and 501. damages. It was moved, in arrest of judgment, that the advertisement in the newspaper was no libel, and that, if one tradesman will pretend to be a, greater artist than others, it is lawful for them to support their credit in the same way ; and the court held that, though the defendant or any other of tlie trade might iHolt on Libel, 217. W., 108; Boydell v. Jones, 4 M. & 2Cramerv. Eiggs, 17Wend. (N. Y.), W., 446; Warman v. Hine, 1 Jur., 309; EusseU v. Anthony, 31 Kan., 820; Qoodburne v. Bowman, 9 Bing., 450; Parmiter v. Coupland, 6 M. & 533. 70 WEITTEN DEFAMATION. counter-advertise what was published of the plaintiflF, viz., that he could do more than any other man of the trade, yet that should have been done without any general reflections on him in the way of his business ; that the defendant had not contained himself within these bounds, for that the ad- vice to all gentlemen to be cautious was a reflection on his honesty, as if he would deceive the world by a fictitious advertisement, and had a plain tendency to discourage people from dealing with him ; and the allegation that he would not engage with any other artist in town was setting him below the rest of his trade, and calling him a bungler in general terms, and not relative to the precedent matter; it was charging the plaintiflE with being the last of his trade, for the words not daring to engage, etc., stand independent of the words next following, viz. . nor did he ever make the said experiment, etc., so that he was charged generally with the want of skill ; that the words, except out of a leather gun, was charging him with a lie, the word gun being vulgarly used for a lie, and gunner for a liar; and that therefore the words were libelous; the plaintiff had judgment, the court being of opinion that it tended to discredit him in his business. Easter Term, 4 Geo. II., 1731; 3 Stra., 888, 899; Barnard, K. B., 289, 439; Fitzgib., 131, pi. 6; 353, pi. 3; 3 Bac. Abr., 491, 493; 4 Bac. Abr., 494; Har- man v. Del any. § 11. Distinction between libel and Slander. — In cases of slander in England there is a curious distinction drawn be- tween oflBces of profit merely and offices of honor, such as that of justice of the peace; and it has been held that merely to impute incompetency or want of ability, as distinct from a want of integrity or impartiality, to a justice of the peace is not actionable. There is no authority, however, for suppos- ing that an action for libel would not lie if such words were printed and published.^ § 12. Illustrations.— Digest of American Cases. 1. It is libelous to publish of an attorney for a city that he abandoned his client's cause by resigning his office, in the midst of litigation brought on by his advice, to the damage of his client. Hetherington v. Sterry, 38 Kan., 426; 49 Am. Eep., 169. 2. A publication imputing to one corrupt conduct in his office of senator is libelous, though made after his term of office had expired, Cramer v. Eiggs, 17 Wend., 309. 3. A publication charging a brewer with filthy and disgusting practices in preparing his malt is libelous. White v. Delavan, 17 Wend., 49; Eyok- man v. Delavan, 25 Wend., 186. 4. To charge a counselor at law with offering himself as a witness, in or- der to divulge the secrets of his client, is libelous; and it is not a sufficient justification that he disclosed matters communicated to him by his client 1 Odgers on L. & S., 26, 71. LIBELS CLASSIFIED. 71 which had no relation or pertinency to the cause in which he was engaged. The secrets of his client which he counsels he is bound to keep, and the com- munications and instructions of the client relating to the management or defense of his case. Riggs v. Denniston, 3 Johnson's Cases, 198. 5. To publish of one, in his capacity as a juror, that he agreed with an- other juror to stake the decision of the amount of damages to be given in a cause then under consideration upon a game of draughts, is libelous. Com. V. Wright, 3 Cush. (56 Mass.), 46. 6. A newspaper publication, " the rascally conduct of P. B., mayor of the city of H., and his pimps, in arresting and fining men on the most frivolous pretexts, would not be tolerated in any other town in northern Indiana ; ; there will be some Lynch law put in force one of these days," is libelous. ' State V. De Long, 88 Ind., 313. 7. Representing the lieutenant-governor as being in a state of beastly intoxication while in the discharge of his duty in the senate, an object of loathing and disgust, etc., is libelous. Root v. King, 7 Cow., 613; aS'd, p. r., 4 "Wend., 113. 8. A letter stating that the writer had been applied to by an advertising agent to insert in a certain paper the advertisement of the person, addressed, and have had to decline it, but will be glad to receive it " direct, or through any responsible agency," conveys the idea that the agency in question is not responsible, and is actionable. McDonald v. Lord et al., 37 111. App., 111. 9. A publication in a newspaper that, upon a certain person being arrested for rape, and being brought before A., " Squire A., after his style of dis- pensing justice, converts the case into assault and battery and discharges the offender. . . We presume that Mr. A. had an eye to the costs, . . . and accordingly rendered his decision to suit his own convenience,'' was held to be libelous. State v. Lyon, 89 N. C, 568. 10. And it is libelous to publish to the injury of a newspaper reporter an untrue statement showing that he has violated confidence by tale-bearing, Tryon v. Evening News, 89 Mich., 636. 11. And a publication which charges that a person while formerly hold- ing the office of sealer of weights and measures and inspector of scales for a certain city "tampered with" or " doctored" such weights and measures and scales, for the purpose of increasing the fees of his office, is prima facie libelous as tending to bring him into public hatred or contempt. Eviston v. Cramer, 47 Wis., 659. 12. A newspaper publication which stated that a state senator voted against his party and received from the other party, in consideration of his vote, a profitable contract is libelous in itself. (Stone, J., dissenting.) Negly V. Farrow, 60 Md., 158. 13. A publication purporting to. give information as to the credit of a mercantile firm, and charging one member thereof with dishonesty, is libel- ous, and an action will lie by the partners for the injury to the business and credit of the firm. Taylor v. Church, 1 E. D. Smith (N. Y.), 379. 14. It is proper to refuse to charge that the words that plaintiff is suffer- ing from overwork, and his mental condition is not good, and that there has been trouble in the affairs of the bank (of which plaintiff is teller) oo- 72 WBITTEN DEFAMATipN. casioned by plaintiff's mental derangement, and that his statements when he was probably not responsible for them have caused bad rumors, are libelous per se; the court having charged that if their tendency was to in- jure plaintiff in his profession they are libelous. Moore v. Francis, 3 N. Y. S., 162. § 13. Illustrations. — Digest of English Cases. 1. The trustees of a charity can sue jointly for a libelous letter published in a newspaper imputing to them improper management of the charity funds. Booth v. Briscoe (C. A.), 2 Q. B. D., 496 ; 25 W. R., 838. 2. It is libelous to charge an overseer of a parish with ' ' oppressive con- duct" towards the paupers." Woodard v. Dowsing, 3 M. & Ry., 74. 3. A placard stating of a certain overseer that when out of oflSce he ad- vocated low i-ates, when in office he advocated high rates, and that the defendant would not trust himwith £5 of his property, is a libel. Cheese V. Scales, 10 M. & W., 488. 4. It is libelous to accuse a vestry clerk of having in any way misapplied the money of the parish (May v. Brown, 8 B. & C, 113); or to charge a guardian of the poor with having been during the preceding year "a great defaulter " in his account (Warman v. Hine, 1 Jur., 820); or to charge the clerk to the justices of a borough with corruption (Blagg v. Start, 10 Q. B., 899; 16 L. J., Q. B.-, 39; 11 Jur., 101); or to impute habitual drunkenness and neglect of his duties to a certificated master mariner (Coxhead v. Eichdrds, 2 C. B., 569; 15 L. J., C. P., 278; 10 Jur., 984; Harwood v. Green, 3 0. & P., 141 ; Irwin v. Brand wood, 2 H. & C, 960; 33 L. J., Ex., 357; 10 Jur. (N. S.), 370; 12 W. E., 438; 9 L. T., 773; Hamon v. Falle, 4 App. Cas., 247 ; 48 L. J., P. C, 45); or to write and publish of a Protestant archbishop that he attempted to convert a Catholic priest by offers of money and of preferment in the Church of England and Ireland (Archbishop of Tuan v. Robeson, 5 Bing., 17; 2 M. & P., 32); or to write and publish of an tex- mayor and a justice of the peace that during his mayoralty he was guilty of partiality and corruption, and displayed Ignorance of his duties ; and this notwithstanding the public nature of the offices he held (Parraiter v. Coupland, 6 M. & W., 105; 9 L. J., Ex., 202; 4 Jur., 701; Goodburne v. Bowman, 9 Bing., 533) ; or to write and publish of a clergyman that he came to the t>erforniance of divine service in a towering passion, and that his conduct is calculated to make infidels of his congregation (Walker v. Brog- den, 19 C. B. (N. S.), 65; 11 Jur. (N. S.), 671; 13 W. R., 809; 12 L. T., 495; Gathercole v. Miall, 15 M. & W., 319; 15 L. J., Ex., 179; 10 Jur., 337. But see Kelly v. Tinling, L. R., 1 Q. B., 699; 35 L. J., Q. B., 231 ; 12 Jur. (N. S.), 940; 14 W. R., 51; 13 L. T., 255); or to write and publisb of a dissenting minister : "A serious misunderstanding has recently taken place amongst the Independent Dissenters of Great Marlow and their pastor, in conse- quence of some personal invectives publicly thrown from the pulpit by the latter against a young lady of distinguished merit and spotless reputation. We understand, however, that the matter is to be taken up seriously.— Buck's Chronicle." Edwards v. Bell, 1 Bing., 408. LIBELS CLASSIFIED. 73 Of Bareisteks. 1. To write and publish falsely of a barrister that he edited the third edi- tion of a law book is actionable, if the book is proved to be full of inaccura- cies which would seriously prejudice the plaintifi's reputation. Archbold V. Sweet, 1 Moo. & Rob., 163; 5 C. & P., 319. Or of a bai-rister that he is " a quack lawyer and a mountebank " and " an impostor," is actionable. Wakley v. Healey, 7 C. B., 391; 18 L. J., C. P., 841; Sir W. Garrow's Case, 3 Chit. Crim. L., 884. It is libelous to compare the conduct of an attorney in a particular case to that of the celebrated firm of Quii-k, Gammon & Snap in "Ten Thousand a Year." Woodgate v. Ridout, 4 F. &. F., 203. 2. A correct report in tlie "Observer" of certain legal proceedings was headed " Shameful conduct of an attorney." Held, that the heading was a libel, even though all that followed was protected. Clement v. Lewis, 3 Br. & Bing., 297; 3 B. & Aid., 703; 7 Moore, 200. 3. An information was granted for these words written to the mayor of Richmond : " I am sui-e you will not be persuaded from doing justice by any little arts of your own clerk, whose consummate malice and wicked- ness against me and my family will make him do anything, be it ever so vile." R. V. Waite, 1 Wils., 33; Cory v. Bond, 3 F. & F., 341. 4. Words complained of: "If, you will be misled by an attorney who only considers his own interest, you will have to repent it : you may think, when you have once ordered your attorney to write to Mr. Giles, he would not do any more without your further orders, but if you nnce set him about it, he will go to any length without further orders." Held, a libel on the attorney who had been employed to write to Mr. Giles. Godson v. Home, I Br. & Bing., 7; 3 Moore, 333. 5. The libel complained of was headed, "How Lawyer B. treats his clients," followed by a report of a particular case in which one client of Lawyer B.'s had been badly treated. That particular case was proved to be correctly reported, but this was held insuflBcient to justify the heading, which implied that Lawyer B. generally treated his clients badly. Bishop V. Latimer, 4 L. T., 775. 6. Libel complained of, that the plaintiff, a proctor, had three times been suspende'd from practice for extortion. Proof that he had once been so sus- pended was held insufficient. Clarkson v. Lawson, 6 Bing. , 266, 587 ; 3 M. & P., 605; 4 M. & P., 356; Blake v. Stevens and others, 4 F. & F., 333; 11 L. T., 543. 7. It is libelous to impute to a solicitor "disgraceful conduct " in having at an election disclosed confidential communications made to him profes- sionally. Moore v. Terrell, 4 B. & Ad., 870 ; 1 N. & M., 559. But it is not a libel to say of a solicitor that he was admitted in 1879, when he was ad- mitted in 1869. Raven v. Stevens, 3 Times L. R., 67. Of Medical Men. 1. To advertise falsely that certain quack medicines were prepared by a physician of eminence is a libel upon such physician. Clark v. Freeman, II Beav., 113; 17 L. J., Ch., 143; 12 Jur., 149. 2. It is libelous to describe a medical practitioner in print as " the Harley 74 WRITTEN DEFAMATION. Street Quack, Physician Extraordinary to several ladles of distinction." Long V. Chubb, 5 C. & P., 55; "Wells v. Webber, 2 F. & F., 715; Hunter v. Sharpe, 4 F. & F., 983; 15 L. T., 421; 30 J. P., 149. But it is no libel to write and publish of a physician that he has met homoeopathists in consul- tation ; although it be averred in the declaration that to do so would be a breach of professional etiquette. Clay v. Roberts, 9 Jur. (N. S.), 580; 11 W. R., 6i9; 8L. T., 397. Op Newspaper Men. 1. It is libelous to impute to the editor and proprietor of a newspaper that, in advocating the sacred cause of the dissemination of Christianity among the Chinese, he was an impostor, anxious only to put money into his own pocket by extending the circulation of his paper ; and that he had pub- lished a fictitious subscription list with a view to induce people to contrib- ute (Campbell v. Spottiswoode, 3 B. & S., 7S9; 33 L, J., Q. B., 185; 9 Jur. (N. S.), 1069; IIW. R.,569; 8 L. T., 201); and so to call the editor of a news- paper "a libelous journalist" (Wakley v. Cooke & Healey, 4 Exch., 511; 19 L. J.', Ex., 91); or to write and publish that a newspaper has a separate page devoted to the advertisements of usurers and quack doctors, and that the editor takes respectable advertisements at a cheaper rate if the adver- tisers will consent to their appearing in that page. Russell v. Webster, 33 W. R:, 69. But it is not libelous for one newspaper to call another " the most vulgar, ignorant and scurrilous journal ever published in Great Brit- ain;" but it is libelous to add, "it is the lowest now in circulation; and we submit the fact to the consideration of advertisers ; " for that affects the sale of the paper and the profits to be made by advertising. Heriot v. Stu- art, 1 Esp., .437. § 14. Libels on Merchants and Traders. — Any written words are libelous which impeach the credit of any merchant or trader by imputing to him bankruptcy, insolvency, or even embarrassment, either past, present or future, or which impute to him fraud, or dishonesty or any mean and dishonorable trickery in the conduct of his business, or which in any other manner are prejudicial to him in the way of his employment or trade. " The law has always been very tender of the repu- tation of tradesmen, and therefore words spoken of them in the way of their trade will bear an action that will not be ac- tionable in the case of another person; and, if bare words are so, it will be stronger in the case of a libel in the public news- paper, which is so diffusive." ' § 15. Illustrations. — BiGEST OF American Cases. 1. To publish of a tradesman that he is in the hands of the sheriff is a libel. Herman v. Bradstreet Co., 19 Mo. App., 337. iPer curiam in Harman v. Delany, 2 Str., 898; 1 Barnard, 289; Fitz., 121. LIBELS CLASSIFIED. 75 2. A publication purporting to give information as to the credit and stand- ing of a mercantile firm, and charging one member thereof with dishonesty, is a libel, and an action will lie by the partners- for an injury to the business and credit of the firm. Taylor v. Church, 1 E. D. Smith (N. Y.), 379. Digest of English Cases. 1. It is libelous to advertise that a certain optician is " a licensed hawker " and " aquack in spectacle secrets." Keyzor and another v. Newcomb, 1 F. & F., 559. 2. It is a libel to write and publish of a licensed victualer that his license has been refused, as it suggests that he had committed some breach of the licensing laws. Bignell v. Buzzard, 3 H. & N., 317; 37 L. J., Ex., 355. 3. It is libelous to write and publish of the plaintiff that he regularly or purposely supplied bad and unwholesome water to ships, whereby the pas- sengers were made ill. Solomon v. Lawson, 8 Q. B., 833; 15 L. J., Q. B., 253; 10 Jur., 796; Barnard v. Salter, W. N., 1873, p. 140. But for one tradesman merely to puff up his own goods and decry those of his rival ia no libel, unless fraud or dishonesty be imputed. Evans v. Harlow, 5 Q. B., 634; 13 L. J., Q. B., 130; 8 Jur., 571 ;D. &M., 507. 4. The printers of a newspaper, by a mistake in setting up in type the announcements from the " London Gazette," placed the name of the plaint- iff's firm under the heading "First Meeting under the Bankruptcy Act " instead of under " Dissolutions of Partnership.'' An ample apology was in- serted in the next issue ; no damage was proved to have followed to the plaintiff, and there was no suggestion of any malice. In an action for libel against the proprietors of the paper, the jury awarded the plaintiff £50 dam- ages. Held, that the publication was libelous, and that the damages awarded were not excessive. Shepheard v. Whitaker, L. E., 10 C. P., 503; 33 L. T., 403. 5. The defendant published an advertisement in these words: " Whereas, there was an account in the 'Craftsman' of John Harman, gunsmith, making guns of two feet six inches to exceed any made by others, of a foot longer (with whom it is supposed he is in fee), this is to advise all gentle- men to be cautious, the said gunsmith not daring to engage with any artist in town, nor ever did make such an experiment (except out of a leather gun), as any gentlemen may be satisfied of at the Cross Guns in Long- Acre. " Held a libel on the plaintiff in the way of his trade. Verdict for the plaintiff. Damages £50. Harman v. Delaney, 3 Stra., 898; 1 Barnard, 389, 483; Fitz,, 131. 6. Plaintiffs alleged that they were manufacturers of bags, and had man- ufactured a bag which they called the " Bag of Bags," and that the defend- ant printed and published, concerning the plaintiffs in the way of their business, the words following: "As we have not seen the Bag. of Bags, we cannot say that it is useful, or that it is portable, or that it is elegant. All these it may be, but the only point we can deal with is the title, which we think very silly, very slangy, and very vulgar ; and which has been forced upon the notice of the public ad nauseam." On demurrer. Lush, J., held that the words could not be deemed libelous, either upon the plaintiffs or 76 - WEITTEN DEFAMATION. upon their mode of conducting their business. But Mellor and Hannem, JJ., thought that it was a question for the jury whether the words went beyond the limits of fair criticism, and whether or not they were intended to disparage the plaintiffs in the conduct of their business. Jenner v. A'Beckett, L. R., 7 Q. B., 11; 41 L. J., Q. B., 14; 30 W. E., 181; 35 L. T., 464. 7. The plaintiff alleged that he carried on the trade of an engineer, and sold in the way of his trade goods called " self-acting tallow syphons or lubricators," and that the defendant published of him in his said trade and as such inventor,, as follows : " This is to caution parties employing steam power from a person offering what he calls self-acting tallow syphons or lubricators, stating that he is the sole inventor, manufacturer and patentee^ thereby monopolizing high prices at the expense of the public. R. Harlow [the defendant] takes this opportunity of saying that such a patent does not exist, and that he has to offer an improved lubricator, which dispenses with the necessity of using more than one to a steam-engine, thereby constituting a saving of fifty per cent, over every other kind yet offered to the publiQ. Those who have already adopted the lubricators against which R. H. would caution will find that the tallow is wasted instead of being effectually employed as professed." It was held no libel on the plaintiff, either gen- erally or in the way of his trade, but only a libel on the lubricators, and therefore not actionable without proof of special damage. Evans v. Har- low, 5 Q. B., 634; 13 L. J., Q. B,, 120; 8 Jur., 571; D. & M., 507. So where one tradesman merely asserts that his own goods are superior to those of some other tradesman, no action lies unless the words be published falsely and maliciously and special damage has ensued. Young v. Macrae, 3 B. & S., 264; 32 L. J., Q. B., 6; 11 W. E., 63; 9 Jur. (N. S.), 539; 7 L. T., 354; Western Counties Manure Co. v. Lawes Chemical Manure Co., L. E., 9 Ex., 318; 43 L. J., Ex., 171; 23 W. R., 5. 8. A libel on the management of a newspaper is a libel on its proprietors, jointly, in the way of their trade, and therefore actionable without special damage. Russell v. Webster, 23 W. E., 59. To write and publish that a ship is unseaworthy may be a libel on its owner. " It is like saying of an inn- keeper that his wine or his tea is poisoned." Ingram v. Lawson, 6 Bing. N. C, 313 ; 8 Se., 471, 478 ; 4 Jur., 151 ; 9 C. & P., 826. To advertise falsely that certain quack medicines were prepared by an eminent physician is a libel upon such physician (Clark v. Freeman, 11 Beav., 112; 17 L. J., Ch., 142; 12 Jur., 149); or to falsely impute to a bookseller that he publishes immoral or absurd poems (Tabart v. Tipper, 1 Camp., 350). 9. It is libelous falsely to write and publish of professional vocalists that they had advertised themselves to sing at certain music halls songs which they have no right to sing in public. Hart v. Wall, 3 C. P. D., 146 ; 46 L. J., C. P., 227; 35 W. R., 373. But comments, however severe, on the adver- tisements or handbills of a tradesman will not be libelous if the jury find that they are fair and temperate comments, not wholly undeserved, on a matter to which the public attention was expressly invited by the plaintiff. Paris V. Levy, 9 C. B. (N. S.), 343; 80 L. J., C. P.," 11; 9 W. R., 71; 3 L. T., 834; 3F. & F., 71; Morrison v. Harmer, 3 Bing. N. C, 759; 4 Scott, 534; 3 Hodges, 108; Odgers on L. & S., 82. LIBELS CLASSIFIED. 77 111- Libels which hold a man up to scorn and ridicule, and to feelings of contempt or execration, impair him in the enjoyment of general society, and injure those imperfect rights of friendly intercourse and mutual benevolence which man has with respect to man. % 16. The Law Stated. — It is chiefly in this branch of libels that the action for words spoken and for words written sub- stantially differ. The common law in respect to our natural passions gives no action for mere defamatory words, which it considers as transitory abuse, and not having substance and body enough to constitute an injury by affecting the reputa- tion. It confines, therefore, the action for slander to such of the grosser kind of words as impute positive crimes, or, by charging a man with contagious disorders, tend to expel him from society ; and to words which injure him in his profession and calling. It does not consider words amounting to a breach of the peace, and therefore gives neither indictment nor infor- mation for unwritten slander except in the case of seditious language, or words reflecting on a magistrate in the immediate execution of his oflBce. The reason of the law in this distinction is simple enough. It was necessary to punish the grosser and more palpable inju- ries, and it was equally convenient to pass over the less. The law, therefore, by classifying the greater injuries establishes this distinction and adheres to it closely in practice. This reason, however, ceases when the words by being written can no longer be considered as the results of transitory passion or venial levity, but therein gain the shape and efficacy of a mischievous malignity.^ The act of writing is in itself an act of deliberation, and the instrument of a permanent mischief. What before was mere convitium of the civil law, and contumely, grew into a deliber- ate charge and accusation. The law, therefore, both with re- spect to the public peace aftd the prevention of private injury, allowed an indictment and information as well as an action on the case for words written, which it denied to words spoken.^ iHolt on Libel, 323. "3 Salk., 697; 3 Salk., 190; Holt Eep., 654; Holt on Libel, 333. 78 WEITTEN DEFAMATION. As every person desires to appear agreeable in life, and must; be highly provoked by such ridiculous representations as tend to lessen him in the esteem of the vcorld, and, by the sure ef- fect of ridicule, to cast a shade upon his talents and virtues, it has been holden that not only charges of a flagrant nature . and which reflect a moral turpitude on the party are libelous, but also such as set him in a scurrilous and ignominious light; for these reflections equally create ill blood, and provoke the parties to acts of revenge and breaches of the peace. Everything, therefore, written of another which holds him up to scorn and ridicule that might reasonably (that is, accord- ing to our natural passions) be considered as provoking him to a breach of the peace is a libel. And, in the same manner, all such written abuse as may be fairly intended to impair him in the enjoyment of society, or to throw a contempt on him which might affect his general fortune and comfort, is a positive injur}'^, and therefore the subject of an action on the case. § 17. Illustrations.— Digest of American Cases. 1. To state in writing that a man " has turned into an enoi-mous swine and lives on lame horses," and " will probably remain a swine the rest of his days," is a libel. Solverson v. Peterson, 64 Wis., 198; 54 Am. Eep., 607. 2. To publish of a man that he is a miserable fellow ; that it is impossible for a newspaper article to injure him to the extent of six cents; the com- munity would honestly despise him worse than they do now, is a libel. Brown v. Remmington, 7 Wis., 463. 3. To write concerning a man, "I look upon him as a rascal, and have watched him for many years," is a libel. Williams v. Cairns, 4 Humph. (Tenn.), 9. Digest of English Cases. 1. " Scandalous matter is not necessary to make a libel. It is enough if the defendant induce an ill opinion to be had of the plaintifiE,- or to make him contemptible or ridiculous." Per Lord Holt. Cross v. Tilney 3 Salk 236. ■" ■• 2. To say of any man he is a dishonest man is not actionable, but to pub- lish so or put it upon posts is actionable. Skinner, 124. 3. C. forges an order of chancery, in which were several defamatory ex- pressions against the plaintiff, and at the Bnd Sraws a pillory and subscribes it for Sir J. H. and his forsworn witnesses by him suborned. This i§ but one complicated act, and an action will lie. Sir John Austip v. Col. Culpep- per, 3 Shower, 313. LIBELS CLASSIFIED. 79 4. An action was brought for dispersing a paper accusing a gentleman that he should say, "he could see no probability of the war ending with France till the little gentleman on the other side of the water was restored to his rights " — innuendo, the Prince of Wale's. Per Holt, 0. J. A man may justify in an action on the case for words or for a libel, secus in an in- dictment. In case upon a libel it is sufiScient if the matter is reflecting; as, to paint a man playing at cudgels with his wife. Brown v. Dyer, 11 Mod., 99. 5. Where a ticket was delivered by a person to a minister after sermon, wherein he desired him to take notice that offenses passed now without control from the civil magistrate, and to quicken the civil magistrate to do his duty, etc., this was holden to be a libel, because it tended to spread a general contempt upon the magistrates, though no magistrates in particular were mentioned. Sid., 319; Keb., 773; Holt on Libel, 234. 6. An action upon the case lies against the defendant for maliciously writing and publishing a libel upon the plaintiff in the words following, viz. : " Old Villars, so strong of brimstone you smell. As if not long since you had got out of hell ; But this damnable smell I 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 waruing from me, And never enter the doors while they belong to J. P." It was holden that an action would lie for publishing it or for publishing anything in writing which tends to render another ridiculous. Villars v. Monsley, 2Wils., 403. 7. As the case of Villars v. Monsley has become a somewhat noted case on this question, a more extended account of it may not be inappropriate : The defendant pleaded not guilty ; and a verdict being found for the plaint- iff, and sixpence damages, it was moved in arrest of judgment that this was not such a libel for which an action would lie. Sed per curiam: This is such a libel for which an action well lies. We must take it to have been proved at the trial that it was published by the defendant maliciously; and if any man deliberately and maliciously publishes anything in writing con- cerning another which renders him ridiculous or tends to hinder mankind from associating or having intercourse with him, an action well lies against such publisher. There is no difference between this and the cases of the leprosy and plague ; and it is admitted that an action lies in those oases. The writ de leproso amovendo is not taken away, although the distemper is almost driven away by cleanliness, or new-invented remedies : the party must have the distemper to such a degree before the writ shall be granted, which commands the sheriff to remove him without delay, ad locum soli- tarium habitandem ibidem prout maris est ne per eommunem conversa- tionem suam hominibus damnum vel periculem eveniat quovismodo. Reg- istrum Brevium, 267, 6. The degree of leprosy is not material : if you say he has the leprosy it is sufficient, and the action lies. The reason of that case applies to this ; the itch may be communicated by the air without con- 80 WEITTEN DEFAMATION. tact: it is said to be occasioned by animalculse in the skin, and must.be Cured by outward application ; nobody will eat, drink or have any inter- course with a person who has the itch, and stinks of brimstone, therefore this libel is actionable, and judgment must be for the plaintiff. Though for saying a man has the itch, without more, perhaps an action would not lie without other malevolent circumstances ; for there is a distinction between libels and words. A libel is punishable, both criminally and by action, when speaking the words would not be punishable either way. For speak- ing the words rogue and rascal of any one an action will not lie ; but if those words were written and published of any one an action will lie. If one man should say of another that he has the itch, without more, an ac- tion would not lie ; but if he should write those words of another, and pub- lish them maliciously as in the present case, no doubt but the action well lies. Judgment for the plaintiff per tot. our. without granting any rule to show cause. Villars v. Monsley, Easter Term, 9 Geo. III., C. B., 3 Wils., 403. 8. On the trial of an action on the case for defamation, it appeared that the defendant had written the following letter of and concerning the plaint- iff: " After the communication I had with your son in your absence, I but little thought you would have been made the dupe of one of the most in- fernal villains that ever disgraced humaii natui-e ; but I suppose you were deceived by those whom you thought well of, and whom he will deceive if they will give him an opportunity. I am told they are respectable, and how they can be connected with him is the most astonishing thing to me. Mr. H. writes me you called upon him [meaning the plaintiff] on the sub- ject of your account, for which the villain gave you his note at flvemonths." The declaration stated that the plaintiff had sustained special damages, and the plaintiff having failed in proving the special damage laid, Macdon- ald, C. B., was of opinion that the letter, unsupported by proof of special damage, was not actionable, and directed a verdict for the defendant. The counsel for the plaintiff, however, contending that the letter itself was ac- tionable, the chief baron asked the jury what damage they would give, supposing the plaintiff entitled to a verdict in point of law? The jury an- swered, one shilling. Afterwards, on a motion to set aside the verdict for the defendant, and to enter a verdict for the plaintiff for one shilling, the court were clearly of opinion that any words, written and published, throw- ing contumely on the pariy. (5 Co., 135, 6), were actionable, and made the rule absolute. Bell v. Stone, Mich. Term, 39 Geo. III., C. B. ; 1 Pul, & Bos., 331. {). In a special action on the case the plaintiff declares that he is an hack- ney coachman, and the defendant, with intent to disgrace him, did ride Skimmington, and describes how, thereby surmising that his wife had beaten him, and, by reason thereof, persons who formerly used him refused to come into his coach, ad damnum. Upon not guilty it was found for the , plaintiff, and, upon motion in arrest of judgment, judgment was quod querens nil capiat per billam. Bam., 401 ; Trin., 33 Car. 8, B. R., Mason V. Jennings. 10. Carrying a fellow about with horns, and bowing at B.'s door, is ac- tionable. 3 Show., 314, citing Sir William Bolton v. Dean. LIBELS CLASSIFIED. 81 11. A letter written to a third person, calling the plaintiff " a villain, '' was held actionable without proof of special damage. Bell v. Stone, 1 Pul. &Bos., 331. § 18. (2) Libels on Official Persons and Candidates for Office. "While it cannot be said that the law upon this sub- ject is very well settled in the United States, it seems clear that when a man consents to be a candidate for a public office conferred by the election of the i)eople, he must be considered as putting his character in issue so far as it may relate to his fitness and qualifications for the office, and publications of the truth on this subject, with the honest intention of informing the people, are not libels. It would be unreasonable to con- clude that the publication of truths which it is the interest of the people to know should be an offense against the law. For the same reason the publication of falsehood and calumny against public officers or candidates for public offices is an of- fense most dangerous to the people and deserves punishment, because the people may be deceived and reject the best citi- zens, to their great injury.' One may in good faith publish the truth concerning a public officer; but if he states that which is false and aspersive, he is liable therefor, however good his motives may be; ^ and the same is true whether the party defamed be an officer or a candidate for an office elect- ive or appointive.' The law of defamation of officers and candidates for office will be more freely discussed under the title of Privileged Communications. § 19. Illustrations. — Digest of American Cases. 1. It was held to be a libel where a public oflacer published in a report of an ofScial investigation into his conduct the following comments upon the testimony of a witness before the commissioners of inquiry: " I am ex- tremely 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 1 Parsons, C. J., Com. v. Clapp, 4 v. Moore, 83 Pa. St., 385; Sweeney Mass., 163; Wheaton v. Beecher, 33 v. Baker, 13 W. Va., 158. N. W. Eep., 503; Lewis v. Few, 5 2 Hamilton v. End, 81 N. Y., Il6; Johns. (N. Y.), 1; Boot v. King, 7 Baily v. Kal. Pub. Co., 40 Mich., 357. Cow. (N. Y.), 618; Seely v. Blair, 3 wheaton v. Beecher, 83 N. W. Wright (Penn.), 358, 683; Brewer v. Eep,, 504. Weakly, 3 Overt. (Tenn.), 99; Bare 6 82 WEITTEN DEFAMATION. 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." Clark v. Binney, 2 Pick. (Mass.), 113. 2. It is libelous to print and publish of a man who had been a member of the convention vphich formed the constitution of the state that while in the convention he ' ' 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." Stow v. Converse, 3 Conn., 325. 3. An action for libel lies on a communisation to the head of a depart- ment of the government charging a subordinate officer with peculation and fraud, where he is subject to removal by the officer to whom the communi- cation is addressed. Howard v. Thompson, 31 "Wend. (N. Y.), 319. 4. An action lies for the publishing of an article imputing to a party cor- rupt conduct in his character as a member of the legislature, although it be published after he has gone out of office. Cramer v. Eiggs, 17 Wend. (N. Y.), 209. ■ o. An address to the people, published by order of a meeting of citizens, and signed by the chairman, containing false and slanderous charges against a candidate at an election, is a libel. Lewis v. Fenn, Anth. (N. Y.), 75. 6. A publication concerning a candidate for an elective office which charges that he bartered a public imprpvement in which his constituency were interested for a charter of a bank to himself and his associates, and that if elected he would be an unfaithful representative; that he would by criminal indifference or treachery i-etard or prevent the construction of such improvement in order to accomplish selfish, sinister and dishonest pur- poses, is libelous. Powers v. Dubois, 17 Wend. (N. Y.), 63. 7. A publication alleging that a person, being an influential politician of the city of Albany, had been paid $5,000 in cash for procuring the appoint- ment by the governor of an inspector of food in the city of New York, and that large sums had been paid to him for other lucrative offices, is libelous. Weed V. Foster, 11 Barb. (N. Y.), 203. 8. To publish of a member of congi-ess that " he is a fawning sycophant, a misrepresentative in congress and a groveling office-seeker," and that " he has abandoned his post in congress in pursuit of an office," is libelous. Thomas v. Croswell, 7 Johns. (N. Y.), 264. 9. A newspaper report was headed by the words "Blackmailing by a policeman," and stated that the plaintiff, who was a policeman, had been dismissed from his office on charges of " blackmail." It appeared that the plaintiff had been dismissed for accepting voluntary gifts of money from persons to whom he had rendered official services without giving notice thereof to the police commissioners, as required by the regulations of the police department ; but the report was held to be a libel. Edsall v. Brooks, 2 Rob. (N. Y.), 29. 10. The publication in a newspaper: "The Hurricane Vote.— Again we have to chronicle the most atrocious corruption, intimidation and fraud in the Hurricane Island vote, for which David TiUson is without doubt responsible, as he was last year," was held libelous without extrinsic averments to com- LIBELS CLASSIFIED. 83 municate its precise import or allegation of special damage. Tillson v. Bobbins, 68 Me., 295. 11. A publication charging that a person, while formerly holding the office of sealer of weights and measures and inspector of scales for a city, tampered with or doctored such weights, measures and scales for the pui- pose of increasing the fees of his office, is prima facie libelous as tending to bring the accused into public hatred and contempt. Eviston v. Cramer, 47 Wis., 659. 12. It is libelous to publish of an attorney for a city that he abandoned his client's cause by resigning his office in the midst of litigation brought on by his advice, to the damage of his client. Hetherington v. Sterry, 28 Kan., 426; 42 Am. Rep., 169. 13. In an action by B. against A. for libel there was evidence that A. was the publisher of the Leavenworth "Times," containing an article: "-Who is Ed. Kussell, in whose eyes swindling is no crime? He is secre- tary of the bankrupt Kansas Insurance Company, and less than two years ago he was state commissioner of insurance, and certified under his oath of office that this bankrupt concern was a sound and solvent insurance com- pany, w^hile he knew at that very time it was hopelessly insolvent. He was forced to leave the office of commissioner of insurance because the Leavenworth ' Times ' exposed his official crookedness and compelled him to disgorge $8,000 of the state's money.'' It was held that it was immaterial that K. was not in any such office when the article was published, and that the article would be presumed to be false and without sufficient excuse until the contrary was shown. Russell v. Anthony, 21 Kan., 450. 14. P. was a coroner, and also known to the public as a physician. A newspaper article stating in effect that he had held an inquest on a, man supposing him to be dead, when he was in fact alive, and would have been pronounced dead and buried aUve but for the arrival of another physician who discovered the man to be alive and resuscitated him, was held to be libelous, though it did not state that P. was a physician. Purdy v. The Rochester Printing Co., 26 Hun (N. Y.), 206. But it is not libelous to allege of a man in charge of a public office that his virife was given work in the office and paid for it in her maiden name, unless some extrinsic matter makes it become so. Bell v." Sun Printing Co., 42 N. Y. Sup. Ct., 567; 3 Abb. (N. Y.) N. Cas., 157. CHAPTEE Y. SLANDER — ORAL DEFAMATION. § 1. Slander Defined. 2. Illustrations — Digest of American Cases : (1) Words Actionable in Themselves. (2) "Words Not Actionable in Themselves. § 1. Slander Defined. — The defaming of a person in his or her reputation by speaking words which aflPeot his or her life, olBce, profession or trade, or which tend to his or her special damage. Oral defamation consists of two classes: I. Words actionable in themselves. In this class are included : (1) Words imputing the guilt or commission of some crimi- nal offense involving moral turpitude and infamous punish- ment.' (2) "Words imputing the existence of some contagious dis- ease. (3) "Words imputing unfitness in an oflBcer who holds an office of profit or emolument, either in respect of morals or in- ability to discharge the duties thereof. (4) "Words imputing a want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade or business. (5) Words imputing a want of chastity or the commission of adultery or fornication. II. Words not actionable in themselves, but which become so when followed by some special damage. In this class are in- cluded all defamatory words which occasion a party loss or damage.^ § 2. Illustrations. — Digest of American Cases. (1) Words held actionable in themselves. 1. Words imputing a (Srime are actionable whether they expose the party to be prosecuted or convicted. Deford v. Miller, 3 Pa., 103. • Brooker v. Coffin, 5 Johns. (N. Y.), 2 Bouvier's Dictionary, title Slan- 190. der. SLANDEB ORAL DEFAMATION. 85 2. To chai-ge a person with the commission of an infamous offense, the corpus of which never existed, is actionable, Colbert v. Caldwell, 3 Grant (Pa.) Gas., 181. 3. Any accusation is actionable that would bring disgrace on the person accused, and that charges an offense which, if proved, would subject the accused to a punishment, though not such as is known in the books tech- nically as ignominious. Zelif v. Jennings, 61 Tex., 458. 4. If words in their ordinary acceptation would naturally and presumably be understood as imputing a charge of crime they are actionable in them- selves. Stroebelv. Whitney, 31 Minn., 384. 5. Words spoken of a person, charging him with having committed an mdictable offense, involving moral turpitude, are actionable per se; and this though the offense be a mere misdemeanor, unknown to the common law. Accordingly, where the words laid in the declaration were: "You have removed my landmark, and cursed is he that removeth his neighbor's landmark," they were held actionable without any allegation of special damages. Young v. Miller, 3 Hill, 31. 6. To say of a person holding the office of justice of the peace, " Gore per- jured himself \a deciding the suit of Whitcomb against me, and I will be damned if I will believe him under oath ; for he has decided against me contrary to all law and evidence, and it is the G — d d — est erroneous de- cision I ever saw any justice give, and it was a damned outrage, and it was done for spite." is actionable. The words 'charge the plaintiff with ■ having violated his official oath, and with having made a corrupt and mali- cious decision against the defendant. Gore v. Blethen, 21 Minn., 80. 7. Plaintiff was occupying the position of grand worthy chief templar in a temperance organization, and also that of secretary of the State Temper- ance Alliance, and constantly engaged in the duties connected therewith. Defendants, as the petition alleged, falsely and maliciously published of him that he was "a seducer of innocent girls," and instanced an attempt on his part to debauch and ruin a young school-girl, who was at the time a member of his own household. Also, that he was " an arch hypocrite and scoundrel, who was simply using his talents for money-making purposes, and not through any sincerity in the cause in which he is laboring." Held, that each of these charges was actionable per se. Finch v. Vifquain, 11 Neb., 280. ; 8. Words are actionable per se only where the offense imputed by them is one for which the party is liable to indictment and punishment, either at common law or by the statute. Davis v. Sladden (Ore.), 21 Pac. Rep., 140. 9. The terms "cheat " and " swindler " are not actionable unless spoken of the plaintiff in relation to his business. Odiorne v. Bacon, 6 Cush. (60 Mass.), 185. 10. Words spoken by defendant saying that plaintiff poisoned his cattle with Paris green — that they were poisoned from a pail that had bran and poison in it which plaintiff put there — will sustain an action for slander when aided by an innuendo charging that the poisoning was intentional. Vickers V. Stoneman (Mich.), 41 N. W. Rep., 495. 11. To charge that plaintiff "stole and destroyed my sister's will and 86 SLANDER — OEAL DEFAMATION. Other papers" is slanderous. Penal Code, N. Y., sec. 110, declaring that one who, knowing that a paper may be required in evidence, wilfully destroys it to prevent its production, is guilty of a misdemeanor ; and sections 538, 718, making any article of value, contract, thing In action or written in- strument,' by which any pecuniary obligation or interest in property is created; transferred, increased, diminished, etc., the subject of larceny. The charge imputing theft will be presumed to have been made in reference to papers that may be the. subject of larceny. CoUyer v. Colly er, 3 N. Y. S. , 310. 12. Words spoken, that one "used" his daughter, are capable of the meaning ascribed to them by the innuendoes in a complaint for slander, that he committed adultery and incest with her ; and words, in connection with them, when spoken by the daughter's husband, that " the children are not mine; they are from him,'' may mean that the husband disclaimed the pateruity of his wife's children, and asserted that they were from plaintiff. Guth V. Lnbach (Wis.), 40 N. W. Rep., 681. 13. A charge that a butcher slaughters and sells diseased and unwhole- some meats is per se actionable. Young v. Kuhn (Tex.), 9 S. W. Rep., 860. 14. Under the existing social habits and prejudices, charging a white man with being a negro is calculated to inflict injury and damage, and such - charge was recognized as actionable slander by the court, under tlie consti- tution of Louisiana of 1868. Toye v. McMahon, 21 La. Ann., 308; Spotorno V. Fourichon (La.), 4 S. Eep., 71. 15. Utterances to different persons to the effect that plaintiff, a physician, was no doctor, that his treatment would kill a patient, and that persons employing him would murder their own families thereby, are actionable per se. Cruikshank v. Gorden, 1 N. Y. S., 443. 16. Where plaintiff was an election inspector, and defendant, speaking of him, said : " He counted for B. four votes that were cast for E. It is true ; there is no doubt about it.'' The language might be fairly construed to im- port a crime, and is actionable as such. Ellsworth v. Hayes, 71 Wis., 427. 1 7. Words spoken of a person, " He knows how she came to her death. He killed her.' He is to blame for her death. There was foul play there," may fairly be considered to impute a crime, and are actionable per se. Words spoken of another, " He killed her by his bad conduct, and I think he knows more about her being drowned than anybody else. He is to blame for it," do not import a killing in a criminal seiise, and are not actionable per se. Thomas v. Blasdale (Mass.), 7 N. E. Rep., 133 : 18 N. E. Rep., 214. 18. Charging that a person is a thief is equivalent to charging that she has been guilty of the crime of larceny, and is actionable jjer se. In an ac- tion for slander for imputing to plaintiff that she was a "thief," where there is clear evidence that such words had been spoken by defendant, it is not error to charge that, if any one or more of the sets of words charged in the declaration, imputing to plaintiff that she was a "thief," were spoken by defendant of plaintiff, the jury shall find for plaintiff, even though the declaration contains other sets of words which did not so im- pute, and which are not actionable per se. Stumer v. Pitchman (111.), 15 N. E. Rep., 757. 19. Words charging one with letting a house for purposes of prostitution SLANDER — ORAL DEFAMATION. 87 are actionable per se, as imputing a crime, under code of Iowa, section 4015, providing that one who lets a house for purposes of prostitution, or permits It to be used for that purpose, is punishable by fine. Haeley v. Gregg (Iowa), 38 N. W. Rep., 416. 20. In an action for slander, the defense being justification, where the words spoken were: "For some months back I have missed things from my laundry — gentlemen's wear. Jennie [the plaintiff] has stolen them, and I have come to search your house,"— an instruction that the words were such that the law presumed malice from their use, and that they were actionable per se, was correct. Bell v. Fernald (Mich.), 38 N. W. Rep., 91Q. 21. The words, "You ai-e a bitch and a whore; you visit the Halfway House, and got your dress there," impute the offense of fornication to an unmarried woman, and in Rhode Island are actionable per se, since the of- fense, if proved, may subject the party to ignominious punishment. Kelly V. Flaherty (R. I.), 14 Atl. Rep., 876. 22. To charge orally against, a minister that he had retained for his own use the whole or part of collections made by him for foreign missions is ac- tionable. McLeod V. McLeod (Super. Ct.), 4 Montreal L. Rep., 343. 23. Words charging a wife with deserting her husband in his sickness are actionable per se, in connection with words forbidding all persons to give her harbor or trust on her husband's account. Smith v. Smith (Mich.), 41 N. W. Rep., 499. 24. Words imputing the commission of the crime of fornication are ac- tionable per se, on the gi-ound that the crime involves moral turpitude. Page V. Merwin (Conn.), 8 Atl. Rep., 675. 25. The word " malicious," in defining the intent with which a slander is spoken, is not to be considered in the sense of spite or hatred against a person, but as meaning that the party is actuated by improper and indirect motives other than the interest of the public. Words spoken of a butcher, charging him with slaughtering diseased cattle for sale for human food, are actionable per se. Blumhardt v. Rohr (Md.), 17 Ath Rep., 266. 26. In Massachusetts an action lies for calling a woman a drunkard. Brown and wife v. Nickerson, 5 Gray (71 Mass.), 1. 27. It is not necessary that the words in terms should chai'ge a crime. If such is the necessary inference, taking the words altogether and in their popular meaning, they are actionable. Morgan v. Livingston, 2 Rich. (S. C), 573. 28. To call a business man a defrauder, and to tell him that all he has he accumulated by defrauding, is actionable. Noeninger v. Vogt, 88 Mo., 589. 29. The words " he stole my corn " are actionable in themselves. Hoag V. Cooley, 38 Kan., 387. 30. One may be liable for publishing a slander although he says he does not believe it. Nor is he to be excused by the fact that when he repeated it he was in a passion. Finch v. Finch, 21 S. C, 342. 31. When spoken words charged to be slanderous are not actionable in themselves it must appear that they were used and understood in an action- able sense. Niderer v. Hall, 67 Cal., 79. 32. The words "He sent two loads of his store goods to the Black Hills with his mule teams, and started a store and then set fire to and burned his 88 SLANDEE — OEAL DEFAMATION. store building to get the insurance," are actionable in themselves. West v. Hanrahan, 28 Minn., 383. 33. In an action brought by one partner against another the words " These books (the firm books of the parties) must be in court, for he is a swindler and thief and stole $8,000 from me," were held to charge the commission of a, crime and therefore actionable in themselves. Stern v. Katz, 38 Wis., 136. 34. To say that a minister of the gospel collected money for a particular purpose, and embezzled it for his own wrongful uses, and that he is unfit to be a minister, is actionable without proof of special damages. Franklin T. Browne, 67 Ga., 273; Elsas v. Browne, 68 Ga., 117. 35. Words charging that a person has been in the penitentiary of an- other state are actionable. Words actionable as slanderous are not the less so for being preceded by the words '' if reports be true," the proof of which, in addition to the words alleged, is not a variance. A repetition of slanHer- ous words is actionable, unless the party give the name of his informer at the time, and repeat them at a justifiable occasion. Smith v. Stewart, 5 Pa. St., 372. (2) Words held not actionable in themselves. 1. No action lies for orally imputing insanity to a person (in this case an attorney) without an averment and proof of special damages. Joannes v. Bent, 88 Mass., 236. 2. For one competitor for a prize in a shooting contest to say of another who claimed to have scored a certain number of points that he did not score so many, that he was " bluffing," that he "had tried a bluS game be- fore " and was a swindler, and that he had swindled, is not actionable with- out sjoecial damages, as no crime or attempt to commit crime is charged thereby. Eislie v. Walther, 4 N. Y. S., 385. 2a. The words "you have took my money and have it" are not action- able in themselves, as they do not necessarily impute larceny. Christol v. Craig, 80 Mo,, 367. 3. And so is a charge that a supervising architect gave a person work for a commission. Legg v. Dunleavey, 80 Mo., 558; 53 Am. Rep., 513. 4. The words "A. got drunk and came home with some powders and tried to get his wife to take them, but she refused and sent for Doctot B., and he said they were arsenic and poison, and if she had taken any of them they would have killed her; A. tried to poison his wife," were held not to be actionable in themselves. Rock v. McGlarnon, 95 Ind., 415. 5. Tl]e defendant's wife, a stockholder in a street railway company, in- formed her husband that she had heard persons boast that a car of the com- pany driven by the plaintitf was "a good dead-head car for them," and the defendant informed the foreman of the company, who thereupon, without investigation or notice, dismissed the plaintiflE. Held, that an action of slander would not lie, there being no proof of actual malice. Haney v. Frost, 34 Ii,a. Ann., 1146; S. 0., 44 Am. Rep., 461. 6. To charge a physician with malpractice has been held not actionable if it be shown that the word was not used in its technical sense. Rodgers V. Kline, 50 Miss., 808. SLANDEK — ORAL DEHAMATION". 89 8. Spoken words must impute an offense for which corporal punishment may be inflicted in the first instance ; a mere assault is not such an offense in Vermont. Billings-r. Wing, 7 Vt., 444. 9. A cheating which does not affect the public, and may be guarded against by common prudence, is not indictable; the words importing a charge of such cheating are not actionable. Weierbach v. Trone, 3 Watts &S. (Pa.), 408. 10. To constitute oral slander the words must impute to the plaintiff the commission of an infamous offense — an offense where the conviction and punishment for its commission involve moral turpitude and social degrada- tion. A misdemeanor punishable only by fine or imprisonment is not in- famous. McKee v. Wilson, 87 N, C, 300. H. To say, " W. stole windows froih J.'s house," was held not to be ac- tionable in itself cis imputing a charge of larceny or an act of malicious mischief upon real estate, though it seems to be otherwise where the charge was simply " W. stole J.'s windows." Wing v. Wing, 66 Me., 62. 12. To call one "a bogus peddler "is not actionable without averring that those words have acquired a sense which implies a crime; for ex- ample, passing counterfeit money with an intent to defraud, and where used in that sense. Pike v. Van Wormer, 5 How. (N. Y.) Pr., 171 ; 6 id., 99. 13. An action will not lie, in Pennsylvania, for words spoken in another state when the offense charged would not be indictable in the other state. Barclay v. Thompson, 3 Penn., 148. 14. An action for slander does not lie for a criminal charge made by an affidavit before a magistrate; the plaintiff's remedy being by an action for malicious prosecution or arrest, or for maliciously suing out a search-war- rant. Sanders v. RoUinson, 3 Strobh. (S. C), 447. 15. To charge a man with purchasing liquor, not being a crime in Iowa, is not actionable in itself. Sterling v. Ingenhsimer, 69 Iowa, 310. IG, A complaint for slander charging that, "on the night the ballot- boxes were stolen from the sheriff's oflace, defendant was up town, and saw plaintiff sitting on the court-house steps at 9 o'clock at night," intending to create an impression that plaintiff stole the boxes, held demurrable as not imputing any offense. Long v. Musgrove, 75 Ala., 158. CHAPTEE VI. IMPUTATION OF CRIME. 5 1. Historical Review of the Law. 2. The English Cases — The General Rules. 3. Stanhope's Case. 4. Smale's Case. 5. Sir Harbert Crofts' Case. 6. Chief Justice Holt's Rule — Another Rule. 7. Ogden's Case. 8. Button's Case. 9. The English Rule. 10. The American Rule. 11. Extent of the Rule. 12. Moral Turpitude Defined. 13. General Illustrations — Digest of American Cases. 14. Digest of English Cases. 15. The Substantial Cause of the Action. 16. The Doctrine Stated by Judge Cooley. I. Analysis of the Subject. 17. Nature and Character of the Cuime Imputed. 18. Illustrations — Digest of American Cases. 19. Digest of English Cases. 20. Imputations Containing No Definite Charge — Suspicions. 21. Illustrations — Digest of A merican Cases. 22. Digest of English Cases. 28. Degree of the Offense — Offenses Punishable by Fines, etc., Only. 24. Illustrations — Digest- of American Cases. 25. Digest of English Cases. 26. Imputations Relating to the Tinie of the Commission of the Crime Charged. 27. Illustrations — Digest of American Cases. 28. Digest of English Cases. 39. Imputations as to the Place of Commission — Charge of a Crime Committed Out of the State. 80. The Imputation May be General. 31. Illustrations — Digest of American Cases. 83. Digest of English Cases. 33. Imputation of Impossible Offenses. 34. Illustrations — Digest of American Cases. 35. Digest of English Cases. in general. 91 11. Paktioulak Offenses. § 36. Larceny — The Offense Defined — Characteristics of the Offense: (1) Wrongful Taking. (2) The Removal. (3) The Criminal Intent. 37. The Wrongful Taking. 38. The Carrying Away. 39. The Criminal Intent. ,40. Larceny Restricted to Personal Property — Rule of the Common Law. 41. Statutory Modifications of the Rule. 43. A General Rule of the Common Law. 48. Wild Animals — The Common Law. 44. Modification by Statutory Enactments. 45. Import of the Word Steal. 46. Other Words' of Like Import. 47. The Moral Effect of the Charge. 48. Words Imputing the Commission of the Offense — Illustrations — American Cases — English Cases. 49. Words Held Not to Impute the Commission of the Offense — Amer- ican Cases. 50. Perjury — The Offense Defined. 51. The General Rule — Examples. 53. False Swearing — The Law Illustrated. 53. The Colloquium — A Substantial Part of the Cause of Action. 54. Materiality of the Testimony Chai-ged to be False. 55. Conclusions. 56. Words Charging the Commission of the Offense: (1) Without a Colloquium — American Cases — English Cases. (2) With a Col- loquium — American Cases. 57. General Illustrations — Digest of American Cases — What is a Court of Competent Jurisdiction — Materiality of the Testimony. 58. The Offense under Statutes. 59. Statutory Slander Imputations under Statutes. 60. Homicide — The Offense Defined — It is Felonious, when. 61. The Moral Effect of the Charge. 63. Words Imputing the Commission of the Offense — American Cases — English Oases. 63. Manslaughter— Defined. 64. Words Charging the Commission of the Offense. 65. Abortion — Defined. 66. The Moral Effect of the Charge. 67. Words Imputing the Commission of the Offense — American Cases. 68. Accessory — Words Imputing the Offense. 69. Arson — The Offense Defined. 70. Words Imputing the Commission of the Offense — American Cases — English Cases. 71. Attempts to Commit Offenses — Illustrations — American Cases — English Cases. 73. Keeping a Bawdy-house — Illustrations — American Cases — Eng- lish Cases. 92 IMPUTATION OF OEIME. §73. Bigamy — The Offense Defined. 74. Words Imputing the Commission of the Offense — American Cases — English Cases. 75. Blackmailing — Statutory Offense. 76. Bribery — The Offense Defined. 77. Bribery of Voters. 78. Burglary — The Offense Defined. 79. The Moral Effect of the Charge. ' 80. Words Imputing the Commission of the Offense — American Cases — Etiglish Cases. 81. Embracery Defined — Falsely Charging the Commission of the Of- fense is Actionable. 82. Cheating — The Offense Defined — Words Imputing the Commis- sion of this and Kindred Offenses. 83. Counterfeiting — The Offense Defined. 84. Words Imputing the Commission of the Offense. 85. Embezzlement — The Offense Defined. 86. Woi'ds Imputing the Commission of the Offense — American Cases — English Cases. 87. Forgery — The Offense Defined — Common Law. 88. Under Statutes, etc. — General Illustrations — American Cases — English Cases. 89. Gaming — Keeping a Gambling-house, etc. — The Offense Defined. 90. Incest — The Offense Defined. 91. The Moral Effect of the Charge. 92. Words Imputing the Commission of the Offense — American (!!ases — English Cases. 93. Kidnaping — The Offense Defined at Commoil Law. 94. Libel — The Offense Defined — Examples. 95. Rape — The Offense Defined. 96. The Moral Effect of the Charge. 97. Words Imputing ithe Commission of the Offense — English Cases. 98.' Bobbery — The Offense Defined. 99. The Moral Effect of the Charge. 100. Words Imputing the Commission of the Offense — American Cases — English Cases. . 101. Sodomy — Bestiality — Buggery — The Crime against Nature — The Offense Defined. 102. The Moral Effect of the Charge. 103. Words Imputing the Commission of the Offense — American Cages — English Cases. 1 04. Soliciting Another to Commit an Offense — Definition. 105. Words Imputing the Commission of the Offense — American Cases — English Cases. 106. Subornation of Perjury. 107. Words Imputing the Commission of the Offense — American Cases — English Cases. 108. Watering Milk — The Charge, when Defamatory. IN GENEEAL. 93 Defamatory words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished, are actionable in themselves. § 1. Historical Reyiew of the Law. — "The action for scan- dalous words," says Starkie, " though of high antiquity, was formerly so little resorted to, that between the first and fifth years of the reign of Edward the Third not more than three instances occurred.^ From the commencement of the reign of Elizabeth, such actions, especially for words containing an imputation of crime, began to multiply with great rapidit}'- — a circumstance chiefly attributable to the increasing encourage- ment which they met with in the English courts. No settled rule ascertaining their limits seems, however, to have been established at any early period, and the mass of conflicting decisions to be met with in the English reports exhibits con- vincing marks of the precarious and fluctuating priticiples on which they were grounded. A struggle between two opposite inconveniences seems to have created this wavering in the minds of the judges. The fear of encouraging a spirit of idle and vexatious ^ litigation, bj'^ affording too great a facility to this species of action, was contrasted with the mischief result- ing to the public peace from refusing legal redress to the party whose reputation had been slandered — every day's experience teaching that the remedy denied by our courts would most surely be pursued by acts of personal violence. Accordingly it appears that as the former or latter of these considerations preponderated a more rigid or relaxed rule of decision was adopted by the judges. Out of two hundred successive cases taken at random in Croke's reports of cases in the reign of Elizabeth, fifteen con- sist of actions for words — a proportion somewhat greater than that of one in fourteen. If, upon the average, it be sup- posed that each individual case of the two classes occupied the same time, it will follow that one day out of every fourteen must have been devoted by the court to this fruitful subject of litigation.' 1 Coke, C. J., 8 Bulstrode, 167. » Starkie on Slander, IS, note. 2 6 Modern R, 24. 94 IMPUTATION OF OEIME, § 2. The Earlier English Cases — The General Rules — Edward's Case.-^ The defendant had charged the plaintiff with having attempted to burn the defendant's house, and the court were of opinion that the charge was actionable, assigning generally as the reason that " by such speech the plaintiff's good name is impaired." ^ § 3. Stanhope's Case. — The words were, " M. Stanhope hath but one manor, and that he hath gotten by swearing and forswearing;" and Wray, C. J., said "that though slanders and false imputations are to be suppressed, because many times ' a verbis . ad verbera perventum est,^ yet," he said, " that the judges had resolved that actions for scandals should not be maintained by any strained construction or argument, nor any favor given to support them ; forasmuch as in these days they more abound than in times past, and the intemperance and malice of men increase, et malitiis hominum est obviomdum: and in our books aotiones pro socmdalis aunt rarissimm; and such as are brought are for words of eminent slanders and of great import."^ § 4. Smale's Case — The Rale laid Down. — The words were, " thou wert forsworn, and I can prove it." Upon motion in arrest of judgmentj-Williams, J., said "this rule is to be ob- served as touching words which are actionable; that is to say, where the words spoken do tend to the infamy, discredit or disgrace of the party, there the words shall be actionable." And the rule was aflBrmed by the court.' Yet so little was this rule regarded that, in the very next case which occurred, where the words were "thou werst in gaol for robbing such an one on the highway," the court dif- fered in opinion; and Fenner, J., held that if one saith of an- other "thou art as big a thief as any in Warwick gaol," none being there m prison, the words would not be actionable, but otherwise had a felon been there at the timet. §5. Sir Harbert Crofts' Case.— The words were" SiDs«H.d keepeth men to rob me." Upon giving judgment for the de- fendant, Coke, C. J., said : " We will not give more favor unto actions on the case for words than of necessity we ought to do iCroke's R. Eliz., 6. ssmale v. Hatomon, 1 Bulstrode, ' Stanhope v. Blith, 4 Coke R., 15. 45. IN GENERAL. 93 where the words are not apparently scandalous, these actions being now too frequent." ^ § 6. Chief Justice Holt's Eule. — In the early part of the reign of Queen Anne, Chief Justice Holt observed that " it was not worth while to be learned on the subject; but when- ever any words tended to take away a man's reputation, he would encourage actions for them, because so doing would much contribute to the preservation of the peace." ^ And in another report of the same case he is stated to have said : " I remember a story told by Mr. Justice Twisden, of a man that had brought an action for scandalous words spoken of him ; and, upon a motion made in arrest of judgment, the judgment was arrested, and the plaintifif being in the court at the time said that, if he had thought he should not have recovered, he would have cut the defendant's throat." ' Another Rule.— The same learned judge, in a case some- what subsequent to the former, is reported to have said that, " to make words actionable in themselves, it is necessary to charge some scandalous crime by them."* §7. Ogdeu's Case. — The defendant said to the plaintiff, " Thou art one of those that stole my Lord Shaftsbury's deer." The court held " that words to be of themselves actionable, without regard to the person or foreign help, must either endan- ger the party's life, or subject him to infamous punishment, and that it is not sufficient that the party may be fined and im- prisoned, for that if any one be found guilty of any common trespass he shall be fined and imprisoned; and yet that no one will assert that to say one has committed a trespass will bear an action, or that at least the thing charged upon the plaint- iff must be scandalous." And in the same case it was held that, where the penalty for an offense by a statute was of a pecuniary nature, an imputation of such an offense would not be actionable; even though in default of payment the statute should direct the offender to be set in the pillory, this was only for want of money, and not the direct penalty given by the statute.* 1 Crofts V. Brown, 3 Bulstrode, 167. ^Walmesly v. Russell, 6 Mod., 2 Lord Raymond, 959. 200. 3 Baker v. Pierce, Holt, 654; 6 6 Ogden v. Turner, 6 Mod,, 104. Mod., 24. 9G IMPUTATION OF CRIME. § 8. Button's Case— Hale's and Twisden's Rule.— Fortescue, Justice, observed: "It was the rule of Holt, C. J., to make words actionable whenever they sound to the disreputation of the person of whom they were spoken ; and this rule was also Hale's and Twisden's rule, and I think it a very good rule."^ The ground of an action for words in the absence of spe- cific damage seems to have been the immediate tendency in the words themselv^es to produce damage to the person of whom they are spoken, in which case presumption supplies the place of actual proof. The immediate and obvious incon- veniences resulting from a charge of crime are the party's (ieg- radation in society and his exposure to criminal liability. In the former case, the presumption is that he has lost the benefit of intercourse with society; in the latter, that he is placed in jeopardy, and that the suspicion excited by the report may produce a temporary deprivation of his liberty until his inno- cence can be made manifest.^. § 9. The English Rule — Words Imputing a Crime.— Spoken words which impute that the plaintiff has been guilty of a crime punishable with imprisonment are actionable with- out proof of special damages. But if the offense imputed be only punishable by penalty or fine the words will not be ac- tionable without proof of special damages.' There has been considerable fluctuation of opinion in the English as well as in the American courts as to the exact limits of this rule. In Queen Elizabeth's days some judges considered that words were actionable which imputed to the plaintiff con- duct which would be sufficient ground for binding him over to good behavior.* In Queen Anne's reign, on the other hand. Holt, C. J.,' lays it down that every charge of treason or felony is actionable, but not every charge of misdemeanor — only of such as entail a " scandalous " and " infamous " punishment. It may be presumed, however, that this would include all in- dictable misdemeanors except such semi-civil proceedings as 1 Button V. Hey ward, 8 Mod., 24. * Bray v. Andrews (1504). Moore, 63; 2 Starkie on Slander, 16, 17. Lady Cockaine's Case (1586), Cro. 3 0dgers on Libel and Slander, 54; Eliz., 49; Tibbott v. Haynes (1590), Webb V. Beavan, 11 Q. B. D., 609; Cro. Eliz., 191. 53 L. J., Q. B,, 644; 49 L. T., 201; 47 »Ogden v. Turner, 6 Mod., 104; J- P-> 488. Holt, 40; 2 Salk., 696. IN QENEEAL. 9Y an indictment for the obstruction or non-repair of a highway.^ Starkie says : " It appears to be clearly established that ' no charge upon the plaintiff, however foul, will be actionable without special damage, unless it be of an offense punishable in a temporal court of criminal jurisdiction.' "^ It has been the usual practice to state that words which im- pute an indictable offense are actionable without proof of special damage, as all indictable offenses are or may be pun- ishable with imprisonment. But there are at the present day in England and in the United States many offenses which are not indictable, and yet are punishable summarily with impris- onment in the first instance; so the above appears a more ac- curate statement of the law. Words which merely impute an offense for which a magistrate can only inflict imprisonment in default of payment of a fine imposed are not, it is to be ap- prehended, in themselves actionable. § 10. The American Rule.^ Judge Cooley, in his treatise on the law of torts, says: "It is agreed upon all hands that it is not aXv^^ajs prima facie actionable to impute to one an act which is subject to indictment and punishment." Importance in the law of defamation is attached to the inherent nature of the indictable act, and also to the punishment which the law assigns to it. In the leading case of Brooker v. OoflBu, 5 John- son's Reports (IS". Y.), 190, decided by Judge Spencer in 1809, the following was given as the test: "In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infa- mous punishment, then the words will be in themselves action- able." ' And this test has been accepted and applied so often and so generally that it may now be accepted as settled law.* 1 Odgers, Libel and Slander, 54. 3 Rich., 243; Kinney v. Hosea, 3 2'Starkie on Slander, 32. Harr., 77; Coburn v. Harwood, 'Cooley on Torts (ed. 1880), 190; Minor, 93; Perdue v. Bennett, Minor, Cox V. Bunlier, Morris, 269 ; McCuen 138 ; Hilhouse v. Peck, 3 Stew. & Por., T. Ludlam, 17 N. J., 13. 395 ; Johnston v. Morrow, 9 Porter, 4 Davis V. Brown, 27 Ohio St., 336 ; 525; Taylor v. Kneeland, 1 Doug. Montgomery v. Dooley, 3 Wis., 709; (Mich.), 67; Beck v. Stitzel, 31 Penn. Filber v. Dauterman, 36 Wis., 530; St. R., 523; Billings v. Wing, 7 Vt, Dial V. Holter, 6 Ohia«t., 338 ; Olfele 439 ; The State v. Burroughs, 3 Halst., V. Wright, 17 Ohio St., 338 ; Burton v. 426 ; 1 Ampr. Lead. Cas. , 113, 3d ed. ; Burton, 3 Iowa, 316; Gage v.Shelton, Wright v. Paige, 36 Barbour, 438; 7 98 IMPDl'ATION OF CKIME. §11. Extent of the Rule. — This rule includes all felonies and such misdemeanors as involve moral turpitude and which are indictable or otherwise punishable. As has already, been said, there may be some impropriety in supposing that a viola- tion of any existing law is not in some degree immoral and discreditable; and although the long catalogue of crimes de- fined in the criminal code exhibits guilt in an almost infinite variety of shades, yet it is clear that this immorality and guilt exist in different and well-defined degrees. Moral turpitude implies vileness of principle and extreme depravity. It is evi- dent that a charge of having committed an assault and- battery is not within the rule,' while other misdemeanors of such nat- ure and character as imply a high degree of moral turpitude are included.^ "This element of moral turpitude," said Low- rie, J., in a Pennsylvania case,' "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 common sense of the community." § 12. Moral Turpitude Defined.^ — The adjective word " moral," in the ordinary sense as applied to the law of libel and slander, signifies any manner or custom relating to or ac- cording to the I'eceived and customary rule of right and duty between man and man; relating to or in accordance with morality or morals; or relating to the private and social du- ties of men as distinct from civil responsibilities; relating to a law as right or wrong, conceived of as obligatory in its own nature; and not depending on human laws.* The term turpi- tude is derived from the Latin word tur^itudo, foul, vile, base. In its ordinary acceptation it signifies moral baseness or vile- ness, depravity or enormity.' Moral turpitude may therefore Quin V. O'Gara, 2 E. D. Smith, 388; R., 18; McCuen v. Ludlam, 3 Harri- Martin v. S,tillwell, 13 Johnson, 375> son (N. J.), 13; Johnson v. Shields, 1 Burtch V. Nickerson, 17 Johnson, Dutcher, 118; Giddens v. Mirk, 4 819; "Van Ness v. Hamilton, 19 Johns., Ga., 360. 367-; Gibbs v. Dewey, 5 Cow., 503; i Dudley v. Horn, 81 Ala., 379 ; Bil- Demarest v. Haring, 6 Cow., 88; lings v. Wing, 7 Vt., 439. Crawford v. Wilson, 4 Barb., 504; 2 See Smith v. Smith, 8 Sneed, 473.' Alexander v. Alexander, 9 Wend., 3 Beck v. Stitzel, 31 Penn. St., 533. 141; Hoag v. Hatch, 23 Conn., 590; < Worcester's Dictionary, 936. Andres v. Hoppenheafer, 3 Serg. & 5 Worcester's Dictionary, 1557. E., 355; Todd v. Rough, 10 Serg. & IN GENEEAL. 99 be defined as an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow-men or to society in general, contrary to the accepted and custom- ary rule of right and duty between man and man. § 13. General Illustrations — Digest of American Cases. — 1. "Words spoken of a private person are only actionable when they con- tain a plain imputation not merely of some indictable offense, but one of an infamous character, or subject to an infamous and disgraceful punish- ment." Klumph V. Dunn, G6 Penn. St., 141. 2. It is not sufiScient that they impute to a person merely the violation of a penal or criminal law, but that they charge him with a crime which involves moral turpitude, or would subject him to an infamous punishment. Hoag V. Hatch, 23 Conn., 585, 590. 3. " The general current of decisions warrants us in saying that, to render words actionable ver se on the ground that they impute criminality to the plaintiff, they must, 1st, be such as charge him with an indictable offense; and 2d, the offense charged must involve a high degree of moral turpi- tude, or subject the offender to infamous punishment." Holliligsworthv. Shaw, 19 Ohio St., 430, 433. 4. "You have altered the marks of four of my hogs" were held in them- selves actionable, as they charge an act involving moral turpitude, and an in- dictable offense, although the punishment must be infamous. Perdue v. Burnett, Minor (Ala.), 138. 5. They must convey a charge of some act criminal in itself and indict- able as such, and subject the party to an infamous punishment or some offense involving moral turpitude. McCuen v. Ludlam, 17 N. J., 12. 6. In a slander suit it appeared that defendant sold paints to plaintiff under a condition that plaintiff should not add an,ything to them, and that plaiptiff had violated his agreement. Held, that an action of slander founded on defendant's statement that plaintiff had adulterated the paints could not be maintained. Lynch v. Febigfir, 39 La. Ann., 336. 7. Some cases go further, and seem to require that, in order to render the charge actionable per se, the act imputed shall not only be subject to an infamous punishment, but also involve moral turpitude. Thus, in Red- way V. Gray, 31 Vt., 292, 298, the court, through Poland, J., say: "We think that in addition to the offense charged being punished corporallj', it must impute moral turpitude ; and the true reason why assaults and breaches of the peace and violations of the liquor law are not such offenses as make words charging them actionable is because they do not necessa- rily and in the legal sense imply moral turpitude. The offense of larceny does necessarily impute it ; and there is no distinction between grand and petty larceny in this respect." Cooley on Torts, 198. 8. The defendant prosecuted the plaintiff for a felony. Before commenc- ing the prosecution he stated the crime to a constable, informing him that he wished him to serve the process; but the process was not brought to this constable. The plaintiff was discharged on the examination. Held, that this was slander by the defendant. After the examination and ac- quittal of the plaintiff the defendant repeated the charge, and urged ita 100 IMPUTATION OF CKIMfe. truth to several persons who were present at the examination. This was also held to be slander, and was not to be excused because spoken to per- sons who were so present. Burlingame v. Burlingame, 8 Cow. (N. Y.)„141. 9. An action lies for charging the plaintiff with a crime the prosecution of which has been barred by the statute of limitations, and in such action the defendant may justify and prove the truth of his allegations. 10. An action lies for charging the plaintiff with a crime committed in another state, although the plaintiff would not be amenable to justice in the state in which the action was brought. Van Aukin v. Westfall, 14 Johns. (N. Y.), 233. 11. An action may be brought for the charge of a crime, though not couched in direct and positive terms. Gorham v. Ives, 3 Wend. (N. Y.), 584; Sewell v. Catlin, 3 id., 291; Gibson v. Williams, 4 id., 830. 11a. In an action for a charge of felony made in reference to a transac- tion in itself innocent, and so understood by several persons, held that, as it was fairly to be understood that others were present who did not un- derstand it, and as the words were spoken without explanation, the action was maintainable. Phillips v. Barker (^ 7 Wend. (N. Y.), 439. 12. Words, to be actionable, must either have produced a temporal loss to the plaintiff in special damage sustained, or they must convey a charge of some act criminal in itself and indictable as such, and subjecting the party to infamous punishment, or some offense involving moral turpitude. McCuen v. Ludlam, 17 N. Jj L. (3 Har.), 13; Hoag v. Hatch, 23 Conn., 585. 13. The allegation that a crime has been committed, with an assertion of belief that a particular person committed it, is equivalent to a positive charge against that person. Miller v. Miller, 8 Johns. (N. Y.), 74, 77. 14. A charge that the plaintiff had poisoned the defendant's horse is not actionable. In an action for such words the court refused to direct the jury that if the horse was alive the words were not actionable, the same being irrelevant to the issue. Chaplin *v. Cruikshanks, 3 Har. & J. (Md.), 347. 15. In an action for slander the words charged to have been spoken were, " You are a rogue, and I can prove you cheated M. S. out of $100." It was held that the words were not in themselves actionable. Winter v. Sum- valt, 3 Har. & J. (Md.), 38. 16. Where words accusing the plaintiff of a felony were spoken.to a jus- tice, on an application for a warrant for felony, the question whether they were actionable or not depends upon the question whether they were made in good faith or not, and that question should be left to the jury. Bunton V. Worley, 4 Bibb (Ky.), .38. 17. Words which, unconnected with the subject on which they were spokeu, import felony, but with the colloquium do not import it, are not ac- tionable. Brite v. Gill, 3 T. B. Mou. (Ky.), 65. 18. A charge of poisoning the defendant's cow is actionable in Iowa. Burton v. Bui'ton, 3 Iowa, 316. 19. In an action for slander it was held that if the facts stated by the de- fendant at the time of the publication of the alleged slander, and the acts of which the defendant accused the plaintiff, constituted a trespass only, the defendant would not be liable, although characterizing the facts by the use of the word "stole." MoCaleb v. Smith, 22 Iowa, 243. m GENEBAL. 101 20. Words amounting to a charge that the plaintiff had committed ae penitentiary offense, but that he was insane when he committed it, are not actionable. Abrams v. Smith, 8 Blackf. (Ind.), 95. 21. A voter is liable to an action for slander who falsely accuses a town- clerk moderator of a town meeting, though in open town meeting, of fraud- ulently destroying a vote. Dodds v. Henry, 9 Mass., 262. 22. Spoken words, in order to be actionable, should import in themselves a charge of some punishable offense, or an imputation of some disgraceful disease, or be spoken in relation to some trade or occupation in which the party slandered is injured. But they will be taken in their natural mean- ing and acceptation, and not in mitiori sensu. Chaddock v. Briggs, 13 Mass., 248, 253. 23. Words spoken by one person of another which do not charge a crime upon him are not actionable. Wyant v. Smith, 5 Blackf. (Ind.), 293 ; Brite V. Gill, 2 T. B. Mon. (Ky.), 65; McClurg v. Ross,, 5 Binn. (Pa.), 318; Luke- hart V. Byerly, 53 Pa. St., 418. 24. Words actionable in themselves are not so when spoken of a transac- tion not amounting to the crime charged, if known to the hearers to be so spoken. Palmer v. Anderson, 33 Ala., 78. § 14. Digest of English Cases. — 1. The defendant said to the plaintiff in the presence of others : " Thou art a sheep-stealing rogue, and farmer Parker told me so." Held, that an action lay. It was urged that the plaintiff ought not to have judgment, because it was not averred that farmer Parker did not tell the defendant so : but the court was of opinion that such an averment was unnecessary, it being quite immaterial whether fanner Parker did or did not tell the defendant so. Gardiner v. Atwater, Say., 365; Lewes v. Walter, 3 Bulstr., 325; Cro. Jac, 406, 413; Rolle's Rep., 444; Meggs v. Griffith, Cro. Eliz., 400; Moore, 408; Read's Case, Cro. Eliz., 645. 2. To say " I believe that will to be a rank forgery " may be a slander on the solicitor who prepared it and attested the signature. Seaman v. Neth- erclift, 1 C. P. D., 540; 45 L. J., C. P., 798; 34 W. R., 884; 34 L. T., 878. 3. To state that criminal proceedings are about to be taken against the plaintiff (e. g., that the attorney-general had directed a certain attorney to prosecute him for perjury) is actionable, although the speaker does not ex- pressly assert that the plaintiff is guilty of the charge. Roberts v. Camden, 9 East, 93; Tempest v. Chambers, 1 Stark., 67. 4. To say of a clerk, "He cozened his master," is actionable, though the defendant did not expressly state that the cozening was done in the execu- tion of the clerk's official duties ; that will be intended. Reignald's Case, Cro. Car., 563; Reeve v. Holgate, 3 Lev., 63. 5. " I think in my conscience, if Sir John might have his will, he would kill the king ; " for this is a charge of compassing the king's death. Sid- nam v. Mayo, 1 Roll. Rep., 427; "Cro. Jac, 407; Peake v. Oldham, Cowp., 275; 3 Wm. Bl., 959. 6. "Thou art » corn-stealer ; " in spite of the olpjection "that it might be that the corn was growing, and so no felony.'' Anon., Cro. Eliz., 563. So where the defendant, on hearing that his barns were burnt down, said: 102 IMPUTATION OF OEIME. "I cannot imagine who it should be but the Lord Sturton." Lord Sturton ' vi Chaffin (1563), Moore, 143. 7. " He has become so inflated with self-importance by the few. hundreds made in my service — God only knows whether honestly or otherwise ; " for this is an insinuation of embezzlement. Clegg v. Lafifer, 3 Moore & So., 737 ; lOBing., 350. 8. " Thou art forsworn in a court of record, and that I will prove!" was held sufficient ; though it was argued after verdict that he might only have been talking in the court-house and so forsworn himself; but the court held that the words would naturally mean forsworn while giving evidence in some judicial proceeding in a court of record. Ceely v. Hoskins, Cro. Car., 509. • ; 9. To say "He robbed John White " is prima facie clearly actionable. But the defendant may show, if he can, that that is not the sense in which the words were fairly understood by by-standers who listened to the whole conversation, though previously unacquainted with the matter to which the words sued on relate. Tomlinson v. Brittlebank, 4 B. & Adol., 630; 1 Nev. & Man., 455; Hankinson v. Bilby, 16 M. & W., 443; 3 C. & K., 440; Martin v. Loei, 2 F. & F., 654. But the words " He has defrauded a me^l- man of a roan horse " held not to imply a criminal act of fraud ; as it is not stated thkt the mealman was induced to part with his property by means of any false pretense. Richardson v. Allen, 3 Chit., 657; Needham v. Dow- ling, 15 L. J., C. P., 9. § 15. The Substantial Cause of the Action. — In tbe light of ' modern decisions the gravamen of the action for slander seems to be the risk of social degradation rather than the risk of pun- ishment. Tbe rule to test the question whether the. charge complained of imputes an infamous crime is always resorted to to ascertain whether it be a social degradation, and not whether the risk of punishment is incurred. The numerous cases in our reports where the words impute a crime and at the same time state a pardon or acquittal, and the established precedents always complaining of the loss of character and never of the risk of punishment, seem to settle this question beyond dispute.' It is clearly established, however, that no charge will be' actionable without special damage, unless it imputes a crime or misdemeanor involving moral turpitude, and for whibh a presentment will lie.^ iShippv. McGraw, 3 Murphy, 463; Van Kess v. Hamilton, 19 id., 349; Eastland v. Caldwell, 3 Bibb, 33; Demarest v. Haring, 6Cowen, 76, 88; Smith V. Stewart, 5 Barr, 373; Beck Case v. Buckley. 15 Wendell, 337; V. Stitzel, 31 Pa. St., 533; Heard on Crawford v. Wilson, 4 Barbour, 504; ^- * ^•' ^^' Qi^inn v. O'Gara, 3 Smith (N. Y.), «Widrigv. Oyer, 13 Johnson, 134; 388; Hoag v. Hatch, 23 Connecticut, ANALYSIS OF THE SUBJECT. 103 § 16. The Doctrine Stated Iby Judge Cooley.— It has been sometimes supposed that the reason for holding an imputation of an indictable ofifense slanderous was that it imperiled the party and exposed him to the risk of prosecution and punish- ment; but the authorities are not consistent with this view. The charge of criminal conduct for which punishment has been inflicted, or which has been pardoned, or a prosecution for which is barred by the statute of limitations, will never- theless support the action under corresponding circumstances to those which would support one where the charge, if true, would still subject the party to punishment.^ It was held in Illinois that a child too 3'oung to be punished for a crime might nevertheless maintain an action for slander against a person charging her with it.^ I. ANALYSIS or THE SUBJECT. § 17. Character of the Crime Imputed — Nature of the Offense. — The charge must clearly impute an offense which would "subject the party charged to an indictment for a crime involving moral turpitude, or subject himi to an infamous pun- ishment, although it need not state the charge with all the precision of an indictment. If merely fraud, dishonesty, im- morality or vice be imputed, no action lies, without proof of special damage. And even where words of specific import are employed, such as " thief " or " traitor," still no action lies if the defendant can satisfy the jury that they were not in- tended to impute crime, but merely as general terms of abuse, and meant no more than " rogue " or " scoundrel," and were so understood by all who heard tiiem. But if the by-stahders reasonably understand the words as definitely charging the plaintiff with the commission of a crime, an action lies.* 585 ; Andres v. Koppenheafer, 3 Ser- Porter, 535 ; Taylor v. Kneeland, 1 geant & Eawle, 355 ; Todd v. Rough, Doug. (Mich.), 67 ; 3 Kent's Comni., 16. 10 id.,18;McCaen V. Ludlam, 3Har- i Cooley on Torts, 300; Smith v. rison, 13; Johnson v. Shields, 1 Stewart, 5 Penn. St., 373; HoUey v. Butcher, 116; Giddens v. Mirk, 4 Burgess, 9 Ala., 728; Van Aukin Georgia, 364; Gage v. Shelton, 3 v. Westfall, 14 Johns., 333; Krebs Richardson; 349 ; Kinney v. Hosea, 3 v. Oliver, 13 Gray, 339 ; Shipp v, Harrington, 77; Coburn v. Harwood, McGraw, 3 Murph., 463. Minor, 93; Perdue v. Burnett, id., 2 Stewart v. Howe, 17 111., 71. 138; Hillhousev. Peck, 3 Stewart & 3 Cooley on Torts, 1st ed., 196; Porter, 395 ; Johnston v. Morrow, 9, Brooker v. Coffin, 5 Johns. (N. Y.), 104 IMPUTATION OF CEIME. Words which are not actionable in themselves may never- theless express a criminal charge by reason of their allusion to some extrinsic matter or circumstance, or of their being used and understood in a different sense from their natural meaning, and so become actionable in fact.' §18. Illustrations — Digest of American Cases. — 1. As it is a felony under the statutes of the United States to fai' '/ ef- face internal revenue stamps on barrels of distilled spirits after taef are enjptied, it is therefore a libel to publish in a newspaper that it is informed that a person is under indictment for so failing to efface the stamps. Jones V. Townsend, 31 Fla., 431; 58 Am. Rep., 676. la. In an action for slander, the words charged were "you are a thief;" you are a damned thief." The words proved were "you are a thief; you -stole hoop-poles and saw-logs from Delancey's and Judge Meyer's land." The judge before whom the cause was tried left it to the jury to decide ■whether by the words proved the defendant meant to charge the plaintiff ■with taking timber or hoop-poles already cut down, in which case it would be a charge of felony, or whether they were meant only to charge the plaintiff with cutting down and carrying away timber to make hoop-poles, in which case it would amount tp a trespass only, and the -words -wfauld not then be actionable; and the jury having found a verdict for the defendant the court refused to set it aside. Dexter v. Taber, 12 Johns., 239. lb. " You will steal, and I can prove it,'' will be taken to import a charge that the party had stolen, and may be so laid with an innuendo. Cornelius V. Van Slyck, 21 Wend., 70. le. Charging the plaintiff with having kept a bawdy-house is actionable of itself, that being an indictable offense and involving moral turpitude. Martin v. Stilwell, 13 Johns., 275; Bush v. Prosser, 13 Barb., 231. 1(1. To say of a woman, " she procured or took medicines to kiU the bas- tard child she was like to have, and she did kill or poisoit the bastard child she was like to have,'' etc., is actionable. Widrig v. Oyer, 13 Johns., 124, 2. The complaint charged the speaking of these words: "You have sworn false under oath. You have lied under oath," without any collo- quium connecting them with a judicial trial or proceeding. Held bad, as not imputing perjury. But, " You have sworn false when under oath, and if you had your deserts you would have been dealt with in the time of it," do, it seems, import a charge of the commission of that crime. Phincle V. Vaughan, 12 Barb., 215. 3. The words, " You get your living by sneaking about when other peo- ple are asleep ; " " What did you do with the sheep you killed? " " Did you eat it?" " It was like the beef you got negroes to "bring to you at night;'' " Where did you get the little wild shoats you always have in your pen?" "You are an infernal roguish rascal," — were held actionable as contain- ing a charge of larceny in more instances than one. Morgan v. Livingston 3 Rich. (S. C), 573. 190 ; Smith v. Smith, 2 Sneed (Tenn.), i Hays v. Mitchell, 7 Blaokf . (Ind.), 473; MoAnally v. Williams, 3 Sneed 117. (Tenn.), 26. AITALTSIS OF THE SUBJECT. 105 4. It is slander falsely to say of a postmaster that he broke open or de- stroyed mail matter; and a complaint need not allege that the act is made a crime by the federal law. Harris v. Terry, 98 N. C, 131. 5. Words charging what would constitute the statutory crime of public indecency are actionable in themselves. Seller v. Jenkins, 97 Ind., 430. 6. Whether words charging an offense are slanderous in themselves does not depend on the law of the state where they are spoken, b^t on that of the state where the act is alleged to have taken place. Dufresne v. Weise 46 Wis., 390. 7. It has been held actionable without proof of special damages to call a man " a hog thief" in South Carolina {Hogg v. Wilson, 1 N. & M. (S. C), 316); "a bloody thief" (Fisher v. Rottereau, 3 McCord (S. C), 189); "a thieving puppy" (Little v. Barlow, 36 Ga., 433; Piersou v. Steortz, 1 Morr. (Iowa), 186). But to call a person a thief is not actionable, unless the term is used with the intent to impute a crime which the law will presume, however, if the contrary intent is not shown. MoKee v. Ingalls, 4 Scam. (111.), 80. 8. Where the word " thief," though capable of a felonious signification, was neither used by the defendant nor understood by the by-standers as charging the plaintiff with larceny, it is not actionable. Quinn v. O'Gara, 3 E. D. Smith (N. T.), 888. 9. And so, too, it has been held actionable to say of a person " he is a bogus peddler" (Pike v. Van Wormer, 6 How. Pr., 101); "he is a knave" (Harding v. Brooks, 5 Pick., 244); "he is a dealer in counterfeit money " (Pike V. Van Wormer, 6 How. Pr., 99); "he is a receiver of stolen goods" (Dias V. Short, 16 How. Pr., 833); "he killed a horse " (Gage v. Shelton, 3 Rich., 343); "he poisoned my cow" (Burton v. Burton, 3Iowa, 316); "you are a vagrant " (Miles v. Oldfield, 4 Yeates (Penn.), 433). 10. But it has been held not to be actionable to say of another, " a man that would do that would steal." Stees-v. Kemble, 37 Penn., 113. 11. The words "you hooked my geese" are not actionable in themselves; but they as well as other words may become so by expressing a criminal charge by reason of their allusion to some extrinsic fact, or of their being used and understood in a different sense from their natural meaning. Hays V. Mitchell, 7 Blackf. (Ind.), 117. 12. The words "I believe you will steal" do not of themselves imply a charge of larceny committed in the past, and are not actionable in them- selves ; but it is competent to show that the words spoken, under the pecul- iar circumstances attending their utterance, express a charge of crime committed, in which case they become actionable. Bays v. Hunt, 60 Iowa, 251; 14 N. W. Rep., 785. 13. B. spoke of A. : "A. and B. and one C. sat down to gamble in a house in D., and while there C. took out of his pocket-book a $5 bill and proposed to bet |1 at that time ; after the bill was put down on a chance, it was miss- ing, and search was made for it, but it could not be found, whereupon the parties agreed to submit to a search, which was accordingly made, but the bill was not found. After the search one of the parties proposed to look out of doors for the money, and accordingly all of the parties went out of the house to search for it, and near the window they found a pocket-book with the clasp unfastened and in it the bill belonging to C. C. took out the bill 106 IMPUTATION OF CEIMB. and handed the pocket-book to A., who took it and said, 'Boys, don't tell this on me, for if you do it will ruin me.' " It was held that the words did not charge a larceny. Prichard v. Lloyd, 2 Ind., 154. § 19. Digest of English Cases. — 1. To say "I have been robbed of three dozen winches; you bought two, one at 3s., one at 2s. ; you knew well when you bought them that they cost me three times as much making as you gave for them, and that they could not have been honestly come by," is a sufficient charge of receiving stolen goods, knowing them to have been stolen. An indictment which merely alleged that the prisoner knew the goods were not honestly come by would be bad. R. v. Wilson, 2 Mood. C. C, 52 ; Alfred v. Farlow, 8 Q. B., 854; 15 L.. J., Q. B., 258; 10 Jur., 714. And to say "you forged my name" is ac- tionable, although it is not stated to what deed or instrument. Jones v. Heme, 2 Wils., 87. 2. To say that a man is " forsworn " or " has taken a false oath " is not a sufficiently definite charge of perjury; for there is no reference to any ju- dicial proceeding. But to say " thou art forsworn in a court of record " is , a sufficient charge of perjury ; for this will be taken to mean that he was forsworn while giving evidence in a court of record before the lawfully appointed judge thereof on some point material to the issue before him. Stanhope v. Blith, 4 Rep., 15; Holt v. Soholefleld, 6 T. R., 691;'Ceely v. Hoskins, Cro. Car., 509. To say of another " he has defrauded a mealman of a roan horse " was held not to imply a criminal act of fraud ; as it was not stated that the niealman was induced to part with hi^ property by means of any false pretense. Richardson v. Allen, 2 Chit., 657; Needham V. Dowling, 15 L. J., C. P., 9. 3. And it is not sufficient to call a person " a cheat" (Savage v. Robery, 2 Salk., 693; Mod., 398; Davis v. Miller et ux., 3 Str., 1169), "a swindler" (Savile v. Jardine, 2 H. Bl., 531; Black v. Hunt, 2 L. R., Ir., 10; Ward v. Weeks, 7 Bing., 211 ; 4 M. & P., 796), " a rogue," " rascal," " villain," etc. (Stanhope v. Blith, 4 Rep., 15), " a runagate " (Cockaine v. Hopkins, 2 Lev., 214), "a cozener" (Brunkard v. Segar, Cro. Jac, 437; Hutt, 13; 1 Vin. Abr., 437), "a common filcher" (Goodale v. Castle, Cro. Eliz., 554), or "a welcher" (Blackman v. Bryant, 27 L. T.j 491; Barnett v. Allen, 3 H. & N., 376; 27 L, J., Ex., 412; 1 F. & F., 125; 4 Jur. (N. S.), 488). As the words do not necessarily contain an imputation of the commission of a criminal of- fense, they are not actionable without proof of special damage. But the term "welcher" is actionable if the jury are satisfied the word means " one who takes money from those who make bets with him, intending to keep such money for himself and never to jjart with it again." Williams V. Magyer, " Times " for March 1, 1883. § 20. Imputations Containing No Definite Charge, Merely a Suspicion.— Where the imputation contains no definite charge of crime, but merely discloses a suspicion existing in the mind of the defendant, no action lies without proof of special damage ;i and yet it seems the words must be spoken iCom. Dig., Act. for Def.. F., 13; Haightv. Hoyt,19N. Y.,468; Hodg- Dickey v. Andrews, 33 Vt., 55; son v. Scarlett, 1 B. «S; Aid., 388. . ANALYSIS OF THE SUBJECT. 107 upon some privileged occasion, for it is immaterial what was in the speaker's mind. The question to be determined is, How did the hearers or by-standers understand the words? § 21. Illustrations — Digest of American Cases.— 1. It has been held not to be actionable to express a supposition or belief that a person went to a certain place for the purpose of persuading another to commit adultery with him. Dickey v. Andrews, 33 Vt., 55. 2. " I believe you will steal." These words were held not to imply of them- selves a charge of larceny committed in the past, and therefore not action- able in themselves ; but it is competent to show that under the peculiar circumstances attending this utterance they did, in fact, express a charge of crime committed. Bays v. Hunt, GO Iowa, 251 ; 14 N. W. Rep., 785. 3. But it has been held actionable for one to say he supposed another guilty of a crime. Dickey v. Andrews, 33 Vt., 55. And' so to say, "My watch has been stolen in M.'s bar-room, and I have reason to believe T. took it, and that her mother concealed it;," has been held to amount to charges of larceny and concealment and to be actionable. Miller v. Miller, 8 Johns. (N. Y.), 74, 77. And so to say, "I will venture anything he has stolen my book." Nye v. Otis, 8 Mass., 133. 4. To say of another, " I believe A. burnt the camp ground," is actionable. Gideau v. Mirk, 4 Ga., 64. So to say, " I have every reason to believe he burnt the barn," and "I believe he burnt the barn." Logan v. Steele, 1 Bibb (Ky.), 593. § 22. Digest of English Cases.— 1. "I have a suspicion that you and Bone have robbed my house, and therefore I take you into custody." At tlje trial, Pollock, C. B., told the' jury that if they found that the defendant meant to impute to the plaintiff an absolute charge of felony, in such case the plaintiff was entitled to the verdict; but, on the other hand, if they should think that he iniputed a mere suspicion of felony, the defendant would be entitled to the verdict. Verdict for defendant. Held, that the direction and the verdict were right. Tozer v. Mashford, 6 Ex., 539; 20 L. J., Ex., 235. 2. The clerk of the crown for the Island of Grenada said of the plaintiff : "He lies here under suspicion of having murdered a man named Emanuel Vancrossen, at the Spout, some years ago," and also, "Haven't you heard that Charles Simmons is suspected of having murdei-ed one Vancross'en, his brother-in-law? A proclamation offering a reward for the apprehension of the murderer is now in my office, and there is only one link wanting to complete the case." Held, that this amounted at the most to words of mere suspicion, and that no action lay. Simmons v. Mitchell, 6 App. Cas., 156; 50 L. J., P. C, 11 ; 39 W. R., 401 ; 4-3 L. T., 710; 45 J. P., 337. 3. The words, " She ought to have been transported," were held not ac- tionable on the ground that they expressed only the opinion of the speaker. Hancopk v. Winter, 7 Taunt., 305. 4. It was held not to be actionable to say of another, "He is a great rogue, and deserves to be hung as well as Gale," who was condemned to be hanged, for the reasoil that the words show opinion merely, and perhaps the speaker might not think that Gale deserved hanging. Bush v. Smith, 108 IMPUTATION OF CEIME. 2 Jones, 157. And so of one, " I will take him to Bow street [a police sta- tion] on a charge of forgery." Harrison v. King, 4 Price, 46; 7 Taunt., 431. 5. But it was held actionable to say " two dyers have gone off, and for aught I know Harrison will be so too, within this time twelve month," and yet they seem to be no more than the expression of an opinion. Harrison v. Thornborough, 10 Mod., 11. And so, too, to say, "All is not well with D. V. ; they are many merchants who have lately failed, and expect no otherwise of D. "V." 3 Salk., 826. And so it is actionable to say "I am thoroughly con- vinced you are guilty of the death of D. D." Peake v. Oldham, Cooper, 275; 2 W. Black., 960. 6. It is actionable to say " I think he is a borse-stealer." Stitch v. Wise- dome, Cro. Eliz., 848. And so it is to say, " He ought to be hanged as much as A." A. having been hangedi this was held to amount to a charge of an offense which deserved hanging, and actionable. Reed v. Ambridge, 6 Car. & P., 308. See Davis v. Nook, 1 Stark. Cas., 373. And so it has been held to say of another, " If you had your deserts you had been hanged before now." Dawn's Case, Cro. Eliz., 62. To say " He hath deserved his ears to be nailed to the pillory." Jenkinson v. Mayne, Cro. Eliz., 384. § 23. Degrees of the OflFense — Words Imputing Ofifeuses Punishable by Fines and Penalties Only. — If the offense im- puted be punishable by a fine or penalty, words charging its commission are, as a general rule, actionable in themselves. The rule is not uniform, however. In some states it is held that words to be actionable must impute not only an indictable offense, but one for which corporal punishment may be in- flicted as the immediate penalty.^ § 24. Illustrations — Digest of American Cases. — 1. Charging one with a crime punishable by indictment and involving moral turpitude, though it be but a misdemeanor, as removing landmarks (3 E. S. N. Y., 695, sec. 33), is actionable per se. Young v. Miller, 3 Hill, 31. 2. The words, "You have altered the marks of four of my hogs," are in themselves actionable, as they charge an act involving moral turpitude, and an indictable offense, although the punishment may not be infamous. Per- due V. Burnett, Minor (Ala.), 138. 3. Words charging a person with knowingly watering milk taken to a butter or cheese factory are actionable in themselves under the statutes of Wisconsin making such an act punishable by fine and imprisonment. Geary v. Bennett, 53 Wis., 444; 10 N. W. Rep., 602. But words which im- pute trespass, assault, battei-y and the like are not actionable in themselves although punishable by indictment. Smith v. Smith, 2 Sneed, 478 ; Dudley V. Horn, 31 Ala., 379; Billings v. Wing, 7 Vt., 444. § 25. Digest of English Cases.— 1. Words which merely impute a criminal intention not yet put into ac- tion are not actionable. Guilty thoughts are not a crime. But as soon as iLemous v. Wells, 78 Ky., 117. ANALYSIS OF THE SUBJECT. 109 any step is taken to carry out such intention, as soon as any overt act ia done, an attempt to commit a crime has been made ; and every attempt to commit an indictable offense is at common law a misdemeanor and in itself indictable. E. v. Scofield (1784), Caldecott, 397. To impute such an at- tempt is therefore clearly actionable. Harrison v. Stratton, 4 Esp., 317. 2. Where the words impute merely a trespass in pursuit of game, punish- able primarily by fine alone, no action lies without proof of special damage, although imprisonment in the pillory may be inflicted in default of pay- ment of the fine. 3 Wm. & M., ch. 10; Ogden v. Turner (1705), 6 Mod., 104; Salk., 696; Holt, 40. 3. Defendant charged plaintiff with a breach of the ninth by-law of the Great Western Railway Company, which is punishable with a penalty of 40s. only. Field, J., held that no action lay. Preston v. De Windt, Times for July 7, 1884. 4. Where the words imputed an offense against the fishery acts, punish- able only by fine and forfeiture of the nets and instruments used, held, that no action lay without proof of special damage. McCabe v. Foot, 18 Ir. Jur. (vol. XI, N. S.), 287; 15 L. T., 115. But words imputing to a licensed victualer that he had been guilty of an offense against the licensing acts would be actionable, as spoken of him in the way of his trade ; and so would words spoken of a dairyman or grocer falsely alleging that he had been con- victed under the sale of food and drugs act of 1875. Odgers on Libel and Slander, 54. § 26. The Imputation as Relates to the Time of the Com- mission of the Offense Charged. — It is not necessary that the words should accuse the plaintifif of some fresh, undiscovered crime, so as to put him in jeopardy or cause his arrest. If such consequences have followed, they may be alleged as special damage; but where such consequences are impossible, the words are still actionable. Thus, to call a man a returned con- vict, or otherwise to falsely impute that he has been tried and convicted of a criminal oflfense, is actionable without special damage. For it is at least quite as injurious to the plaintiff's reputation to say that he has been in fact convicted as to say that he will be or ought to be convicted. Many think that such statements should be actionable, even when true, if they are maliciously or unnecessarily volunteered.' § 27. Illustrations — Digest of American Cas.Bs. — 1. The action of slander for charging one with the commission of an of- fense is not barred because the statute which created the offense has been repealed. French v. Creath, Breese (111.), 81. 2. To show malice, publications made more than the statutory period be- fore the action was commenced and made after it was commenced may be proved. Morgan v. Livingston, 3 Rich. (S. C), 573. 3. An action of slander lies for charging a person with a crime the prose- I Odgers on Slander and Libel, 58. 110 IMPUTATION OF CEIME. cution of which has been barred by the statute of limitations, and in such an action the defendant may justify and' prove the truth of his allegation, notwithstanding the criminal prosecution may be barred. Van Aukin v. Westfall, 14 Johns. (N. Y.), 233. 4. To show damage it is competent to prove the speaking of the same words charged in the complaint at a period so long prior that the statutes of limitation would be a bar to an action. A repetition of words, imput- ing the same charge alleged in the complaint to have been made, may be proved to have been spoken at any time before the commencement of the action, but words imputing a different charge may not be ; nor can the same words be proved to" have been uttered after the commencement of the action. Diston v. Rose, 69 N. Y., 133. But see Prince v. Ester wood, 45 Iowa, 640. § 28. Digest of English Cases.— 1. It is actionable as imputing crime to say of a person that " He was a thief and Stole my gold." It was argued here that " was " denotes time past ; so that it may have been when he was a child, and therefore no lar- ceny ; or in the time of Queen Elizabeth, since when there had been divers general pardons. Sed'per cur. : " It is a great scandal to be once a thief; tor poena potest redimi, culpa perennis erit." Boston v. Tatani, Cro. Jac, 623. , 2. It is actionable to call a man a "thief" or "felon," even though he once committed larceny, if after conviction he was pardoned either under the great seal or by some general statute of pardon. Cuddington v. Wil- kins, Hobart, 67, 81; 3 Hawk. P. C, ch. 37, §48; Leyman v. Latimer and ^ others, 3 Ex. D., 15, 853; 46 L. J., Ex., 765; 47 L. J., Ex., 470; 25 W. E., 751 ; 36 W. R., 305; 37 L. T., 860, 819. 3. He "was in Winchester gaol and tried for his life, and would have been hanged had it not been for Lgggat, for breaking open the granary of farmer A. and stealing his bacon." Carpenter v. Tarrant, Gas. temp- Hardwicke, 339. 4. "He had been in Launceston gaol and was burnt in the hand for coin- ing." Gainford v. Tuke, Cro. Jac, 586. ' 5. And to say of a man falsely, " He is a returned convict.'' Fowler v. Dowdney, 3 M. & Rob., 119; Bell v. Byrne, 13 East, 554. . § 29. Imputation as to Place of Commission — Charge of a Crime Committed Out of the State. — Upon the principle that the actual cause in an action for -defamation is social degradation, and as it can be of no consequence, as respects the injury to the reputation of the party accused, where the offense is alleged to have been committed, as a legal sequence it fol- lows that a charge of having committed an indictable crime involving moral turpitude, out of the state where the words are spoken or Where the action is brought, is actionable.' But 1 Van Aukin v. Westfall,- 14 Johns. 463; Wall v. Haskips, 5 Iredell, 177; (N. Y.), 333;Poe V. Greerer, SSneed, Heard on L. & S., 45; Kribs v. 664; Shipp v. McGraw, 3 Murphey, Oliver, 78 Mass., 339 ANALYSIS OF THE SUBJECT. Ill it mnst be borne in mind that, unless the offense charged is a crime at common law, the burden of proof is upon the plaint- iff to show that it is an offense indictable by the Taw of the state in which it is charged to have been committed. If the oifense charged is not punishable in the state where it is alleged to have been committed, it has been held that the ac- tion cannot be maintained, and this even though the offense is indictable where the words complained of are. spoken or the action is brought.^ The right to bring the action being tran- sitory, the liability follows the defendant wherever he goes, And so it has been held that words spoken in another state, imputing a crime indictable at common law, or by a statute shown by the plaintiff to exist in the state where the offense is said to have been committed, are actionable, and an action for the same may be brought wherever the parties may be fouhd.^ §30. The Charge May he General. — A general charge of felony is actionable though it does not specify any particular crime.' § 31. Illustrations — Digest of Aftierican Cases. — 1. A general charge of forgery, though it appear it was intended, not as a charge of felony, but of forgery of a name to a petition to the legislature for a grant of land, is actionable; for, as eccplained, it" imputes a punishable misdemeanor. Alexander v. Alexander, 9 Wend., 141. 2. Saying that A., on a certain trial, handed papers to one of the jury, and that he ran away or the judge jpould have put him in prison for it, or that he handed papers to the jury to influence or bribe them, imputes em- bracery, and is slander per se. Gibbs v. Dewey, 5 Cow., '503. 3. If the words import a chai'ge that the plaintiff burnt his barn, with intent to defraud the insurers, it is not necessary to.aver that the barn was insured, nor to prove that it was insured. Case v. Buckley, 15 Wend. (N. Y.), 337. 4. Words calculated to induce the hearers to suspect that the plaintiff was guilty of the crime alleged are actionable. Drummond v. Leslie, 5 Blackf. (Ind.), 453. 5. Saying of a man that " he is a rogue and villain; that he has ruined many families, and that the curses of widows and children are on him ; that he had wronged the defendant's father's estate, and cheated the de- fendant's brother T.," was held actionable, though the plaintiff stated in his declaration that he was a merchant at the time, and it was proved that he was not a merchant. Marshall v. Addison, 4 Har. & M. ^Md.), 537. 'Barclay v. Thompson, 2 Penn., 'Drummond v. Leslie,' 5 Blackf. 148. (Ind.). 453. 2 Stout V. Wood, 1 Blackf., 71; Offut V. Earlywine, 4 id., 460. 112 IMPUTATION OF CEIME. 6. But to say of the plaintifie " that he or somebody has altered the credit or indorsem,ent on a note from a lai-ger to a less sum, and that the note would speak for itself," is not actionable, as the charge is not positive, but in the disjunctive. Ingalls v. Allen, 1 111. (Breese), 333. 7. To charge a person with intent to commit a crime is not actionable. M'Kee v. Ingalls, 5 111. (4 Scam.), 30; Wilson v. Tatum, 8 Jones (N. C), L., 300; Seaton v. Cordray, Wright (Ohio), 101. 8. The charge of "packing a jury" imports the improper and cornipt selection of a jury sworn and impaneled for the trial of a cause. Mix v. Woodward, 12 Conn., 363. 9. To utter words imputing a crime is actionable, although the crime could not be committed by the party charged with it, unless the fact is known or disclosed to the hearer. Carter v. Andrews, 16 Pick. (Mass.), 1. 10. Where words apparently charging a crime are used, it is proper to instruct the jury that the words are actionable in themselves if uttered with intent to charge a crime. St. Martin v. Desnoyer, 1 Minn., 156. § 32. Digest of English Cases.— 1. " I will lock you up in Gloucester gaol next week. I know enough to put you there." Webb v. Beavan, 11 Q. B. D., 609; 52 L. J., Q. B., 544; 49 L. T., 301; 47 J. P., 488. 2. "If you had had your deserts, you would have been hanged before now." Donne's Case, Cro. Eliz., 62. 3. " He deserves to have his ears nailed to the pillory." Jenkinson v. Mayne, Cro. Bliz., 384; 1 Vin. Abr., 415. 4. " You have committed an act for which I can transport you." Curtis V. Curtis, 10 Bing., 477; 3 M. & Scott, 819; 4 M. & Scott, 837. 5. "You have done many things for which you ought to be hanged, and I will have you hanged." Francis v. Roose, 3 M. & W., 191 ; 1 H. & H., 36. G. " I have got a warrant for Tempest. I will advertise a reward for twenty guineas to apprehend him. I shall transport him for felony, " were properly found by the jury to amount to a substantial charge of felony. Tempest v. Chambers, 1 Stark., 67. 7. An action lies for these words: "Many an honester man has been hanged and a robbery hath been committed, and I think he was at it; and I think he is a horse-stealer. " Stich v. Wisedome, Cro. Eliz., 348. 8. And for these : "I think in my conscience, if Sir John might have his will, he would kill the king." Sidnam v. Mayo, 1 Roll. Rep., 427; Cro. Jac, 407; Peake v. Oldham, Cowp., 275; 2 Wm. Bl., 959. § 33. Tlie Imputation of Impossible Offenses. — If a crime imputed be one of which a person could not by any possibility be guilty, and all who heard the imputation knew that he could not by any possibilit}^ be guilty thereof, no action lies, for the plaintiff is never in jeopardy, nor is his reputation in any way impaired; for the words must be construed as the by- standers understand them.' The words will be considered ac- 1 Carter v. Andrews, 33 Mass., 1 ; BuUer's N. P., 5. ANALYSIS OF THE SUBJECT. 113 tionable, however, in all cases where they are calculated to induce the hearers to believe or understand that the person referred to has been guilty of the commission of a criminal offense.* § 34. Illustrations — Digest of American Cases.— 1. In a Massachusetts case the words complained of were, " We offer you these books at a disadvantage, for the library has been plundered by Deacon James G. Carter of this town." The occasion was the public sale at auction of the books of the Reading Room Library, a voluntary association of per- sons, of whom the plaintiff Carter was one. It was contended on the part of the defendant that the words were not actionable, because the proprietors of the reading room were tenants in common of the books, and that the taking of the books by one member, though it might be contrary to the rules, was no larceny. It was held that had the words charged as defamatory al- luded to this circumstance, so that any hearer would have had the explana- tion along with the charge, there would have been much force in the argu- ment. Carter v. Andrews, 33 Mass., 1. 2. In Illinois, where by a statutory enactment no infant under the age of ten years can be found guilty of any crime or misdemeanor, the charge was concerning a girl of nine years : " She stole my money ; '' "She is a smart little thief." It was held that, notwithstanding the impossibility of a con- viction for larceny, she could by her next friend maintain an action for slander. R. S. 111. 1887, 483, § 283; Stewart v. Howe, 17 111., 71. § 35. Digest of English Cases.— 1. It is no slander to say of a church-warden that he stole the bell-ropes of his parish church, for they are officially his property, and a man cannot steal his own goods. Jackson v. Adams, 2 Bing. N. C, 402; 2 Scott, 599; 1 Hodges, 839. So it is not actionable for A. to charge a man who is not A.'s clerk or servant with embezzling A.'s money, for no indictment for embezzlement would lie. Williams v. Stott, 1 C. & M., 675; 3 Tyrw., 688. 2. Where the words complained of were, " Thou hast killed my wife," and everyone who heard them knew at the time that defendant's wife was still alive, they could not therefore understand the word "kill" to mean "mur- der." Snag V. Gee, 4 Rep,, 16, as explained by Parke, B., in Heming v. Power, 10 M. & W., 569. And see Web v. Poor, Cro. Eliz., 569; Talbot v. Case, Cro. Eliz., 823; Dacy v. Clinch, Sid., 53; Jacob v. Mills, 1 Ventr., 117 ; Cro. Jac, 348. But where a married woman said, " You stole my faggots," and it was argued for the defendant that a married woman could not own faggots, and therefore no one could steal faggots of her, the court construed the words according to common sense and ordinary usage to mean, " You stole my husband's faggots." Stamp and wife v. White and wife, Cro. Jac, 600; Charnel's Case, Cro. Eliz., 279. 1 Carter r. Andrews, 83 Mass., 1 ; Stewart v. Howe, 17 111., 71 ; Beckett v. Sterrett, 4 Blackf. (Ind.), 499. 8 114 IMPUTATION OF OEIMB. II4 PAETICULAE OFFENSES, § 36. Larceny — The Offense Defined.— Larceny is the wrongful or fraudulent taking and carrying away without color of right the personal property of another from any place with a felonious intent to convert it to the taker's use and make it his own property without the consent of the owner.' The charaoteristioB of the offense are: (1) The wrongful taking. By which it is distinguished from all offenses in the nature of embezzlements or breaches of trusts consequent upon a lawful possession of the property. (2) The removal or carrying away. The act by which, the offense is consummated and by which it is distinguished from that class of offenses commonly known as obtaining goods under false pretenses, cheats and extortions. (3) The criminal injent to deprive the owner of his property. By which the offense is distinguished from a mere trespass to personal property.^ § 37. (1) The Wrongful Taking. — To charge a person with taking with felonious intent any property which can be the subject of larceny is actionable. So words imputing the steal- ing of bell-ropes generally are actionable without proof of special damages; but to charge a person with stealing the bell^ ropes of the church of which he is the church-warden was held not to be actionable in itself, because as such warden he was in the lawful possession of the property of the church.' In the progress of society, however, such distinctions become ridicu- lous, and in many of the states are abolished by statutory enactments. In Illinois it is provided by statute that who- ever embezzles or fraudulently converts to his own use, or se- cretes with intent to embezzle or fraudulently convert to his own use, money, goods or property delivered to him, which may be the subject of larceny, or any part thereof, shall be deemed guilty of larceny.^ § 38. (2) The Carrying Away.— According to the defini- tions of this offense the property stolen must be carried away; 1 Russell on Crimes, 133; Eapalje "Hall v. Adkiiis, 59 Mo., 144; Jaok- & L., Law Die, 728. son v. Adams, 3 Bing. N. C, 403. 2Reglna v. Thurborn, 1 Denison, ■'R. S. 111. 1887, 446; Kibbs v. The 387. People, 81 111., 589. PAETICULAE OFFENSES. 115 but it is not necessary that it be retained in the possession of the thief or that it be removed from the owner's premises. The rule is that any removal, however slight, of the entire ar- ticle, which is not attached either to the soil or to any other thing not removed, is sufficient, while nothing short of this will do.' For example: Where the defendant lifted a bag he meant to steal from the bottom of the boot of a coach, bat, before he got it completely above the space it had occupied, was de- tected; yet, every part of it having been raised from where the particular part had lain, the carrying away was held to be complete.^ And where a thief at an inn ordered another's horse to be led out, and it was done, the leading out was held to be a sufficient carrying away' in law.' And so also where the prisoner, receiving gas of a gas companjr, diverted some of it to his burners without its passing through the meter to be measured, the means employed being to use a pipe running directly from the entrance to the exit pipe. On the other hand, it was decided not to be a sufficient carry- ing away where a person who was in a wagon set a long bale upon its end, and cut the wrapper all the way down, yet was apprehended before he had taken anything out of the bale.*' And where goods in a shop were tied to a string, fastened at one end to the counter, a thief who carried them as far away as the string would permit was held not to have committed lar- ceny, because of their being thus attached. Where a purse, fastened in this way to a bunch of keys, was taken from the pocket, while the keys remained in the pocket, it was held there was no carrying away, since there was no complete sev- erance from the person. The reason given in these cases is that the prisoner's control over the thing was not for an in- stant perfect ; if it had been it would have been sufficient, even though the control had the next instant been lost.' § 39. (3) The Criminal Intent.— The commission of this offense requires a concurrence with the act of two intents: (1) a general intent to do the trespass; and (2) a particular in- 1 3 Bishop, Criminal Law, § 804. < Rex v. Cherry, 1 Leach, 236 ; 3 2 Rex V, Walsh, 1 Moody, 14. East's Pleas of the Crown, 556. 3 3 East's Pleas of the Crown, 556. * gee 3 Bishop's Crim. Law, §g 804- 807. lit) IMPUTATION OF CRIME. tent. Commonl J, however, when speaking of the intent in this oifense the particular intent is meant. This intent is called felonious. For example: Where the taking is by a mere careless tres- pass; as, if the sheep of A. stray from the flock of A. into the flock of B., and B. drives it along with his flock, or by pure mistake shears it, this is not a felony; but if he knows it to be another's, and marks it with his mark, this is an evidence of the felonious intent. Says Bishop,in his Criminal Law, concerning this particular intent: "Almost the only point beyond controversy is that its aim must be to deprive the general or special owner of his en- tire ownership, in distinction from any partial or temporary interest in the property." For example: If one takes a horse, however wrongfully, merely to use and return it; as, if an indentured servant, to escape from service, rides away his master's horse, not intend- ing to deprive the master of his ownership in the horse; or if the wrong-doer leads the animal from a stable which he enters at night, and rides it many miles to a tavern and leaves it, his purpose being simply to do this, without any intent to return it, such person does not commit larceny. And it has been held where one employed in a tannery clandestinely removed some skins of leather from the warehouse to another part of the premises, for the purpose of delivering them to the foreman and getting paid for them as his own work, the transaction was held not to constitute this offense. It would have been otherwise if the intent had been to sell the skins to the owner; for then there would have been an intended appropriation of the entire property, instead of the interest in it, w;hich consists in having done labor thereon.' §40. Larceny Restricted to Personal Property.— Under the rules of the common law prevailing in many of the states larceny is restricted to personal property. Eeal estate, in con- sequence of its stable nature, cannot be the subject of this offense under the rules of the common law; and the same rules extend to everything adhering to the realty or to the soil.''' So that if a person, even with felonious intent, severs and carries 1 3 Bishop's Crim. Law, g§ 863, 868. 2 Jackson v. The State, 11 Ohio St., 104; State v. Hall, 5 Harr. (Del.), 493. PAETICULAE OFFENSES. 117 away a tree or apples from a tree, or grass or grain standing in a field,! Qp copper or lead or anything attached to any build- ing or to the soil, he does not, at least by the rules of the com- mon law, commit this offense, but is guilty only of a trespass.^ Shaw, O. J.: The natural and most obvious import of the word "steal" is that of felonious taldng of property, or lar- ceny ; but it may be qualified by the context. As if one says of another "he stole apples from my trees," it imputes a trespass, and not a felony, and the words are not actionable. Eut if he says "he stole apples from my cellar," it imputes a felonious taking, and the words are actionable.' §41. Statutory Modifications of the Rule.— It must be borne in mind, however, that the rules of the common law have been in many of our states materially changed by stat- utory enactments. In Illinois it is provided by statute that whoever by trespass, with intent to steal, takes and carries away anything which is parcel of the realty, or annexed thereto, the property of another, of some value, against his will, shall be guilty of such larceny as he would be guilty of if such property were personal property.* § 42. A General Rule of the Common Law. — It may be laid down as a general rule of the common law that whatever is not attached to the soil or to the realty is personal property in the sense which makes it the subject of larceny. § 43. Wild Animals, etc. — By the common law unreclaimed and unconfined animals could not be the subject of larceny. Thus, a charge of stealing a sable caught in a trap in the woods while it remained in the trap,^ or a charge of stealing wild bees remaining in a tree where they had hived, although confined in such tree by the owner of the land on which the tree stands.* § 44. Modification hy Statutory Enactments. — Here again it must be borne in mind that these seemingly technical rules of the common law are in many states modified by the stat- utes. In Illinois, as an instance, we find it declared by the statute that " whoever, without the consent of the owner and iComfort V. Fulton, 39 Barb. (N. Y.), * R. S. lil. 1887, 463. 56. 5 Norton v. Ladd, 5 N. H., 203. 2 2 Bishop, Criminal Law, § 768. sWallis v. Mease, 3 Binney, 546; 3 Dunnel v. Fiske, 11 Met. (52 Gillett v. Mason, 7 John. (N. Y.), 16. Mass.), 554. 118 IMPUTATION OF OEIMB. with a felonious intent, takes any beast or bird ordinarily kept in a state of confinement, and not the subject of larceny at common law, shall be deemed guilty of larceny." ' § 45. The Import of the TVord " Steal."— The material and most obvious import of the word is that of the felonious taking of property, or larceny.^ Worcester gives to it the fol- lowing definition: "To take and carry away feloniously or unlawfully, as the property of another; to take without right; to take by tJieft; to jaurloin; to pilfer; to filch; to practice theft; to take anything feloniously." ' § 46. Other Words.— " Pilfering," * " thief," ^ " thieving per- son," ^ " knave," ' and other like ambiguous terms, when used in a general way, and unexplained, have been considered as imputing the crime of larceny. § 47. The Moral Effect of the Charge.— The right to ac- quire and hold property is one of the fundamental principles of civilized society. This right has been guarded by law in dif- ferent degrees in all ages of the world. In the days when the children of Israel toiled in the Wilderness, the Almighty trod upon the quaking hills and wrote, with fingers of fire, " Thou shalt not steal." Larceny of goods is an offense against the right to acquire and hold. It strikes at the foundation of so- ciety. And so odious has it been deemed in all ages of the world that it has been, until modern times, almost universally punished with death. The word "thief" has become an op- probrious epithet, which needs no innuendo to explain its meaning — a term of reproach. The person who has so little regard for the rights of others as to be guilty of this offense must be regarded as an outlaw. The effect of the charge of guilt is to degrade; and hence, if false, the imputation becomes in the law a very serious wrong. § 48. Words Imputing the Commission of this Offense.— The following words, phrases and sentences charging the com- mission of the crime of larceny have been held actionable in themselves without proof of special damage: (1) American cases: " You G — d d — d lying, thieving son of 1 R. S. 111. 1887, 463. * Beckett v. Sterrett, 4 Blaokf., 499. 2Dunnel v. Fiske, 11 Met. (Mass.), ^ Carter v. Andrews, 16 Pick., 1. 5S1. ' 6 Alley v. Neeley, 5 Blackf., 200. aWorce ter'sDict, 1409, 'Harding v. Brooks, 5 Pick., 244. pakticdlatk offenses. 119 a bitch."' "He is a thief." ^ "You are a thieving fellow; you stole and run away."^ " You will steal, and I can prove it."* "My table-cloths are gone; 'if you will bring them" back I will say nothing about it.' You have got them. My husband has gone down town to get' a warrant against you to search your house for the table-cloths and imprison you."^ " J. O'D , the old scoundrel, came down and stole my bull, and I can prove it; and if he don't come down and settle up, -I will put him through, and will make him pay dear for tak- ing him away."« "For some months back I have missed things from my laundry ^gentlemen's wear. Jennie has stolen them, and I have come to search your house." '' " He gets his living by thieving." ' "He was whipped for stealing hogs." ' " He is a thieving puppy." ^^ " He is a thief. He stole my wheat and ground it, and sold the flour to the In- dians." " " He stole corn, and I can prove it ; I sent my corn to his mill and weighed it on its return, and it was lacking." '^ "I saw him take corn from A.'s crib twice, and look around to see if any person saw him measuring.'"' "There is the man who stole my horse and fetched him home this morning." " " I will venture anything he has stolen my book." '' " Dr. K. was imprisoned many years in the penitentiary in Germany for larceny." '^ " My watch has been stolen in M.'s bar-room, and I have reason to believe that T. took it, and that her mother concealed it."" "You are a thief; you are a d — d thief.'"' 1 Reynolds v. Ross, 43 Ind., 387. 'i Parker v. Lewis, 3 Greene (Iowa), ^McNamara v. Shannon, 8 Bush 311. (Ky.), 557. 12 Hume v. Arrasmith, 1 Bibb 3 Alley V. Neeley, 5 Blaokf . (Ind.), (Ky.), 165. 300. '^ James v. McDowell, 4 Bibb (Ky.), 4 Cornelius v. Van Slyck, 31 Wend. 188. (N. T.), 70. But see Bays v. Hunt, i* Bonner v. Boyd, 3 Har. & J. 60 Iowa, 251; 14 N. W. Rep., 785. (Md.), 378. 5 Hess V. Fackler, 25 Iowa, 10. i^ Nye v. Ottis, 8 Mass., 133. SQ'Donnell v. Hastings, 68 Iowa, i^Krebs v. Oliver, 13 Gray (Mass.), 371 ; 36 N. W. Rep., '433. 339. JBeU V. Fernald, 38 N. W. Rep., "Miller v. Miller, 8 Johns. (N. Y.), , 110. 74, 77. 8 Rutherford v. Moore, 1 Cranoh, '8 Stumes v. Pitchman, 33111. App., C. Ct., 388. 399; 15 N. E. Rep., 757; Miller v. 9Hooley V. Burgess, 9 Ala., 738, Johnson, 79 111., 58; Van Aiken v. 10 Pierson v. Steortz, 1 Mor. (Iowa), Caler, 48 Barb. (N, Y.), 58 ; Quigley v. 136; Little V. Barlow, 36 Ga., 433. McKee, 13 Dr., 33; 53 Am. Rep., 320. 120 IMPaTATION OF OEIME, ' The word "thief" is not actionable unless it is intended by its use to impute the commission of larceny, but the law will presume such an intent unless the contrary is shown.^ " Tell him he is riding a stolen horse, and has a stolen watch in his pocket." "' " Tou get ■ your living by sneaking wheat 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 negroes to bring you at night." " "Where did you get the little wild shoatsyou always have in yoiir pen?" " Tou are an in- fernal roguish rascal." ' " A. stole a watch; he went to Gray's shop for a watch; demanded a gold watch; Gray told him to take it ; he did so ; the owner came for the watch ; Gray sent word to him to send it back, which he did. If that be not stealing, what do you call it? " * (2) English cases: "I charge J. S. with felony in taking my money out of my pocket."* "He is a thief. of every- thing." " " He was put in the round-house for stealing ducks at Crowland." ' " For thou hast stolen my corn." ' " Tou stole my box-wood, and I will prove it." ^ § 4:9. Words Held Not to Impute the Commission of Lar- ceny.— The following words, phrases and sentences have been held not to impute the commission of the offense : American cases: "Tou as good as stole the canoe."'" "A man that would do that would steal." " " I believe you will steal," or, " Tou will steal." '^ " Tou are a rogue, and your master has upheld you in stealing from your cradle up." " " Tou are either a thief or you got the book from a thief." " "He seems to have coveted his late partner's cattle. He started for the city with the cattle and an officer was put upon his trail." »' iMcKeev. Ingalls,4Scam.(Ill.), 30. s Foster v. Browning, Cro. Eliz., 2 Davis V. Johnson, 2 Bailey (S. C), 688 ; 4 B. & Ad., 630. 579. 9 Baker v. Pierce, 6 Mod., 38.- 3 Morgan v. Livingston, 8 Rich. i* Stokes v. Arey, 8 Johns., 46. (S. C), 573. n steel v. Kemble, 3 Penn. St., 113. ^Mayson v. Sheppard, 13 Rich. 12 Bays v. Hunt, 60 Iowa, 251; 14 (S. C), 254.. N. W. Rep., 785. But see Cornelius 5 Baker v. Pierce, Lord Raymond, v. Van Sly ok, 21 Wend. (N. Y.), 70. 959. WMcCurry v. McCurry, 83 N. C, * Morgan v. "Williams, Strange 142. 296. 'Beaver v. Hides, 3 Wils., 800. "Blackwell v. Smith, 8 Mo. App., 43. 15 Bain v. Myrick, 88 Ind., 137. PAETICULAK OFFENSES. 121 § 50. Perjury — The Offense Defined.— The wilful giving, under oath, in a judicial- proceeding or course of justice, of false testimony material to the issue or point of inquiry. The defi- nition in its popular acceptation by no means denotes its legal signification. The characteristic of the offense is not the vio- lation of the religious obligation of another, but the injury done to the administration of public justice. There is a broad line of distinction between the compound offense of false, swearing to a material point in a judicial proceeding, which is legal perjury, and that of simple false swearing for fiscal or other general purposes, which is often inaccurately termed perjury. The question whether words are actionable in them- selves, as necessarily imputing a charge of perjury, depends upon whether it appears from the words themselves, or from circumstances connected with them and properly averred in the declaration, that the charge related to an oath in some judicial proceeding, or necessarily conveyed to the mind of the hearer an imputation of perjury as above defined.^ In the absence of statutory enactments it is impossible that any per- son by falsely taking an oath can be guilty of legal perjur}' unless the oath is taken in a judicial proceeding.^ § 51. The General Rule. — Words making a general charge • of perjury have always been held to be actionable in them- selves ; ' and so with all charges of false swearing when it necessarily conveys to the mind of the hearers the imputation of perjury. For example: The following Avords have been held action- able in themselves: "He has sworn false to my injury six or seven hundred dollars." * " He has sworn to a lie and done it meaningly, to cut my throat." * " Tou swore false at the trial of your brother John." « " He has sworn falsely, and I will attend to the grand jury respecting it." ' "Tou swore to a lie before the grand jury."' "I cannot enjoy myself in a meeting with Sherwood, for he has sworn false and I can prove it; and if you do not believe it you can go to 'Squire Bossett's 1 2 Bish. Grim. Law, § 1015. » Coons v. Robinson, 3- Barb., 685. 2 Heard on L. & S., § 34. « Fowle v. Eobbins, 12 Mass., 498. SYelverton (Am. ed.), 38, note; ' Oilman v. Lowell, 8 Wend., 573. Hopkins v. Beedle, 1 Caines, 847. « Perselly v. Bacon, 20 Mo., 380. < Jacobs V. Fyler, 3 Hill (N. Y.), 573. 122 IMPUTATION OF CEIME. and see it in a suit betweett James L. Sherwood, plaintiff, and Kichard P. Brown, defendant." ^ § 52. False Swearing.— But to charge a person with false swearing or with having sworu falsely is not actionable un- less the charge is made of and concerning a proceeding in a court of competent jurisdiction ; and the declaration or state- ment of the claim upon such words must contain a proper colloquium concerning the proceeding, and must aver that the words were spoken in relation to it.^ The law illustrated: The law is well illustrated in a New York case (Wood v. Clark, 2 Johns., 10). The words in ques- tion were: "He has sworn falselj'; he has taken a false oath against me in 'Squire Jamison's court." Tompkins, J., in de- livering the opinion of the court, said : " These words are not actionable unless they must necessarily be understood as con- veying a charge of perjury. This is not to be collected from them, because it does not appear [in the declaration] that Jami- son had any authority to hold a court known in law, or to act judicially, or to administer an oath, and therefore a charge of having taken a false oath before him does not necessarily im- pute any crime for which a person may be indicted and pun- ished. Even if the court referred to by the words were known and recognized by this court, there is no colloquium of any cause there depending, without which the declaration is insufficient, for the words may have been spoken in common discourse. The rule in relation to these and similar words is that, where one person calls another a perjured man, it shall be intended that the same was in a court of justice, and to have a necessary reference to it; but for a charge of false swearing, no action lies unless the declaration shows that the speaking of the words had a reference to a judicial court or proceeding.' § 53. The Colloquium a Sulbstantive Part of the Cause of Action.— The averment of the statement of the claim, the col- loquium of the declaration in reference to the judicial proceed- i-Sherwood v. ChasS, 11 Wend., 38. Calne.'i,- 347; Crookshank v. Gray, 20 2 Holt V. Scholefield, 6 Term, 691; Johns., 344; Stafford v. Green, 1 id.. Hall V. Weedon, 8 Bowling & Ry- 505. land, 140; Vaughan v. Havens, 8 J Wood v. Clark, 3 Johns. (N. Y.), Johns., 109; Hopkins v. Beedle, 1 10. PAETICULAR OFFENSES. 123 ings, or extrinsic circumstances in reference to which the words are alleged to have been spoken, is a substantive part of the cause of action, and must be proved as laid.' § 54. The Materiality of the Testimony. — It is, as a gen- eral rule, a presumption of law that whatever a witness has sworn to in a judicial proceeding is material to the question or questions involved; and when he is charged with having sworn falsely in such proceeding the charge imports perjury. The injury done consists in the fact that the defendant has ostensibly charged the plaintiff with the crime of perjury. The hearers so understand it, and they cannot be presumed to know an\^thing of what actually transpired in the proceeding to affect, the materiality of the plaintiff's. testimony or to qual- ify the real nature of the falsehood imputed. No hearer can presume that he had been telling an idle story, having no con- nection with the cause, for no court would listen to such a story ; and therefore the charge must be interpreted as one of perjury.^ §55. Conclusion — Words Imputing Perjury. — The rule in relation to such words is, when one person calls another a perjured man, it shall be intended that the same was in a court of justice and to have a necessary reference to it; but for a charge of false swearing no action lies at common law, unless the declaration alleges a proper colloquium, and the proof shows that the speaking of the words had reference to a judicial court or proceeding.' The reason for the rule is that not all false swearing is perjury at common law. Swearing to a lie does not necessarily imply that the party has, in the judgment of the law, perjured himself. It may mean that he has sworn to a false- hood without being conscious at the time that it was falsehood. Actionable words are those which convey the charge of per- jury in a clear and unequivocal manner.* Thus, to say a per- son has sworn falsely is not actionable without setting out the lAldrich V. Brown, 11 Wend., Pick. (Mass.), 51; Tenney v. Clement, 596; Emery v. Miller, 1 Denio, 208; 10 N. H., 53, 58. Coons V. Eobinson, 3 Barb., 635. 3 Ward v. Clark, 3 John. (N. Y.), 2 Jacobs V. Fyler, 3 Hill (N. Y.), 10; Croford v. Bliss, 3 Bulstrode, 573, 574; Butterfleld v. Buffum, 9 150; Core v. Norton, Yelverton, 38. N. H., 156, 168; Stone v. Clark, 31 < Hopkins v. Beedle, 1 Caines (N. Y.), 347. 124 IMPUTATION OF CRIME. colloquium, as it may be a mere voluntary oath, which would not constitute perjury;' but it is otherwise to say of a person, "He committed perjury." § 56. Words Charging the Commission of the Offense.— The following words, phrases and sentences have been held to amoufit to an imputation of the commission of this ofifense, and to be actionable : (1) Without a colloquutin — American cases: "You swore to a lie before the grand jury."^ "I believe you swear false; it is false what you say," spoken to a witness while giving tes- timony in a justice's court; or "that is false; I believe it is false," spoken at the trial.' "He is perjured."* "You swore to a lie, for which you would stand indicted." ' "I would not swear to what C. has for the town or the county. P. is hon- estly mistaken, but C. is wilful." * " He has sworn to a lie and done it meaningly, to cut my throat."^ " He has sworn to a damned lie, and I will put him through for it if it costs me all I am worth." ^ " You swore to a lie last spring in that case about the poor-house farm, and I can prove it." Foster, J.: "This language would seem to be in itself actionable, as amounting to an accusation of the crime of perjury, without the aid of any coUoquia or averments of extrinsic facts in explanation of the circumstances under which it was uttered. In such a case the materiality of the false testimony with which the party is charged may well be presumed in the absence of anything to show that it was known or understood to relate to an imma- terial matter at the time by those in whose presence the ac- cusation was made." ' Words charging a party with having "committed perjury" are actionable in themselves.'" 230 1 Power V. Miller, 2 McCord (S. C), 7Coons v. Eobinson, 3 Barb. (N. Y.), 635. 2 Perselly v. Bacon, 30 Mo., 330. s Crone v. Angell, 14 Mich., 340. 3 0olev.Grant,18N. J.L.(3Harr.), 9 Wood v. South wick, 97 Mass., ^^'^- 354; Butterfield v. BufiEam, 9 N. H., 4 Hopkins v. Beedle, 1 Gaines (N. 156. ^•)' ^*''- i«Crone v. Angell, 14 Mich., 840; 5 Pelton V. Ward, 3 Gaines (N. Y.), 73. Gube v. McGinnis, 68 Ind. , 538 ; Gole ,6Walrathv.Nellis,17How.Pr.(N. v. Grant. 3 Harr., 327; Bricker v. '^•^' '^^' Potts, 13 Penn. St., 200; Wood v. PAETICULAE OFFENSES. 125 English cases: " He is under a charge of a prosecution for perjury ; G. "W. [an attorney] had the attorney-general's direc- tions to prosecute him for perjiiry." ' To say that a man is " forsworn " or " has taken a false oath " is not a sufficiently definite charge of perjury; for there is no reference to any judicial proceeding. But to saj' " Thou art forsworn in a court of record " is a sufficient charge of per- jury; for this will be taken to mean that he was forsworn while giving evidence in a court of record before the lawfully appointed judge thereof on some point material to the issue before him.^ (2) With a colloquium — American cases: " He swore false before 'Squire Andrews, and I can prove it," without a collo- quium of its being in a cause pending, is not actionable.' A charge of false swearing is not made actionable per se by the slanderer's intentionally refraining from stating before what court or magistrate, and in what suit, the imputed false swearing occurred. "He swore to a lie, and I can prove it; but I am not liable, because I have not stated in what suit he testified;" "M. swore false, and I can prove it; but I will not tell before what justice he testified." These words are not ac- tionable of themselves.* 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 wit- nesses, and they said they had witnesses enough to satisfy them." Held actionable if he thereby meant to impute the crime in question to B." * And so words charging one with having " sworn a lie on a trial before 'Squire T." are action- able with a colloquium that T. was a justice of the peace." It is not actionable in itself to say of a person " He swore to a lie ; " but the charge in fact may be actionable, for it may have reference to a judicial proceeding in which the party is Southwick, 97 Mass., 354; Pelton v. 15; Holt v. Scholefleld, 6 T. R., 691 ; Ward, 3 Caines (N. Y.), 347; Ring Ceely v. Hoskins, Cro. Car., 509. V. Wheeler, 7 Cow. (N. Y.), 725. 'Stafford v. Green, 1 Johns., 605, » Roberts v. Camden, 9 East, 93 ; * Muchler v. Mulhollen, Lalor, 263, Holt V. Scholefleld, 6 T. R., 691; sRundell v. Butler, 7 Barb., 260. Ceely v. Hoskins, Cro. Car., 509. « Canterbury v. Hill, 4 Stew. & P. 2 Stanhope v. Blith (1585), 4 Rep., (Ala.), 324. 126 IMPUTATION OF CRIME. charged with having sworn falsely. To make the charge slan- derous the declaration must contain a colloquium, with proper references to the proceeding in which the alleged false swear- ing is charged to have occurred.' "Words charging a party with having " sworn to a lie," no reference being made to a judicial proceeding, are not action- able in themselves.'' § 57. General Illustrations — Digest of American Cases. — 1. Words charging perjury are actionable in themselves. Lee v. Robert- son, 1 Stew. (Ala.), 138 ; Carlock v. Spencer, 7 Ark., 12 ; Eccles v. Shannon, 4 Harr. (Del.), 193; Rhinehart v. Potts, 7 Ired. (N. C.) L., 408; Newbitv. Statuck, 35 Me., 315. 2. It has been held a sufflcient charge of perjury without proof of special damage to say of a person, " You swore false at the trial of your brother." Fowle V. Eobbins, 13 Mass., 498. To say " A. swore to a lie on the trial of" a certain action, naming it. Barney v. Thornbury, 7 B. Monroe (Ky.), 475. So to say, " He swore to a damned lie, and I will put him through for it if It costs me all I am worth." Crone v. Angell, 14 Mich., 340. So, "You swore to a lie before the grand jury." Perselly v. Bacon, 20 Mo., 330. 3. "You swore to a lie, for which you now stand indicted." Pelton v. Ward, 3 Cai. (N. Y.), 73. "He swore falsely before 'Squire A., and I can prove it." SafEord v. Grau, 1 Johns. (N. Y.), 505. 4. Words charging a person with having sworn falsely before the grand jury in an alleged proceeding are actionable though such proceeding was never had ; or, if had, such person was never examined as a Witness therein. Holt V. Turpin, 78 Ky., 433. 5. To say of a witness, while giving his testimony in a judicial proceed- ing, " That is a lie ; " "Ibelieve you swore false ; " " It is false what you say," if done maliciously and with a view to defame the witness, is actionable. Mower v. Watson, 11 Vt., 536; Kean v. McLaughlin, 3 Serg. & R.,. 469; Cole V. Grant, 18 N. J. L. (3 Harr.), 827 ; McLaing v. Wetmore, 6 Johns. (N. Y.), 82. 6. But it has been held insufficient to say, " He said I swore false and swore to a lie," with an innuendo, meaning that the said J. committed per- jury, that he had taken a false oath before a magistrate, because the words were not actionable of themselves, and were not made so by the innuendo. Sheely v. Biggs, 2 Harr. & J. (Md.), 363. iBarger v. Barger, 18 Penn. St., 347; Bonner v. McPhail, 31 Barb. (N. 489; Bonner v. McPhail, 31 Barb. (N. Y.), 106; Pegram v. Stoltz, 76 N. C, Y.), 106; Shinlaub v. Ammerman, 7 349; Barger v. Barger, 18 Penn. St., Ind., 347; Mebane v. Sellers, 3 Jones 489; Shinlaub v. Ammerman, 7 Ind., (N. C), 199; Watson v. Hampton, 2 347; Ham v. Wickline, 26 Ohio St., Bibb (Ky.), 319; Vaugh v. Havens, 8 81 ; Mebane v. Sellers, 3 Jones (N. C), Johns. (N. Y.), 109; Morgan v. Liv- L,, 199; Watson v. Hampton, 3 Bibb ingston, 2 Rich. (S. C), 573. (Ky.), 819. i! Hopkins v. Beedle, 1 Cai. (N, Y.), PAKTICULAE OFFENSES. 127 7. Words charging a person with swearing to falsities before a justice are not actionable. Eobertson v. Lea, 1 Stew. (Ala.), 141. So the words, "If I had sworn to what you did I would have sworn to a lie," do not of them- selves import a charge of perjury. Beswick v. Chappel, 8 B. Monroe (Ky.), 486. 8. The words " he has sworn false" are not actionable where the collo- quium is concerning an extrajudicial affidavit. Straffer v. Kintzee, 1 Binn. (Pa.), 537. Or to say of one " he swore to a lie before the church sessions, and I can prove it," is no slander. Horney v. Boies, 1 Pa., 13. 9. What is a court of competent jurisdiction. — The registers and receiv- ers of the different land offices are constituted by the acts of congress a tri- bunal to settle controversies relating to claims to pre-emption rights, and therefore an oath administered in such a controversy before the register alone is extrajudicial ; and, as perjury cannot be predicated upon such evi- dence, an action for slander cannot be maintained for a charge of false swearing in such a proceeding. Hall v. Montgomery, 8 Ala., 510. 10. Words charging a person with, perjury before an ecclesiastical tri- bunal ai'e actionable in themselves. Chapman v. Gillett, 2 Conn., 40. But where a person who had testified under oath before the processioners was accused of swearing falsely, it was held that the action of slander could not be maintained, because the processioners had no legal authority to adminis- ter the oath. Dalton v. Higgins, 34 Ga., 433. 11. Slander will lie on an accusation of perjury in a criminal cause, al- though the complaint therein was too defective for an irrevocable judg- ment. Wood v. South wick, 97 Mass., 354. 12. An arbitration is so far a judicial proceeding under the laws of Ten- nessee that false swearing in such a proceeding is perjury, and an action of slander may be maintained on a charge of swearing falsely in such a pro- ceeding. Moore v. Horner, 4 Sneed (Tenn.), 491. 13. Slander will not lie for charging a witness with perjury while testi- fying before arbitrators if after the oath is administered and new matters in controversy are submitted, and the charge is made in reference to what is said by the witness after such addition of parties and matters. Bullock V. Com., 4 Wend. (N. Y.), 531. 14. To charge a party with swearing false in an affidavit made to obtain a warrant from a justice of the peace is actionable if the affidavit contains any material fact proper to be submitted to the justice on such application, although the affidavit might not be sufficient to justify the issuing of the warrant. Dayton v, Rockwell, 11 Wend. (N. Y.), 140. 15. Words are actionable which imply in the ordinary import that a false oath was taken in a judicial proceeding, though no such proceeding existed. Bricker v. Potts, 13 Penn. St., 300. 16. If a justice of the peace issues a state warrant on an insufficient affi- davit, and the party accused on being arrested proceeds to trial before the justice without objection, the insufficiency of the affidavit will not render the proceedings coram nan judiee; and to charge a witness with swearing falsely on such a trial is actionable. Henry v. Hamilton, 7 Blackf. (Ind,), 506. 17. Materiality of the testimony. — If one person charges another with 128 IMPUTATION OF CEIME. swearing falsely in a trial in court in relation to a particular matter, and that matter was not material, an action cannot be maintained. Darling v. Banks, 14 111., 46. § 58. The Offense under Statutes. — Besides the offense of perjury at common law, false swearing under a variety of cir- cumstances, differing widely from each other in degrees of crim- inality, has been declared by numerous statutes to be perjury and punishable as such. These statutes do not seem to be founded upon any general principle, and consequently they describe in nearly every particular case a distinct offense, to which the appellation of perjury is given. "With few exceptions they are all drawn with a total disregard of the peculiar characteristics of the offense at common law, and its obvious distinction from mere false swearing. Words imputing the commission of the statutory offense are actionable in themselves. § 59. The Imputation under Statutes — Statutory Slan- der. — It seems to be a very harsh rule of law which permits a person to charge another with the commission of the crime of perjury with impunity because the words were not spoken of some judicial proceeding, and it has evidently been the de- sign of the legislatures of several states to suppress this spe- cies of defamation by competent statutory enactments. By a statute of Illinois it is deemed to be slander and action- able to charge any person with swearing falsely, or with hav- ing sworn falsely, or for using, uttering or publishing words of, to or concerning any person which, in their common accepta- tion, amount to such charge, whether the words be spoken in conservation of and concerning a judicial proceeding or not.' In the absence of similar enactments, the settled rule of law is that to charge a person with having sworn falsely is not actionable unless it refers to some swearing in a judicial proceeding. § 60. Homicide — The Offense Defined.— The unlawful kill- ing of a human being in the peace of the people with malice aforethought, either express or implied. (1) It is felonious where death is caused by an act done with the intention to cause death or bodily harm, or which is com- monly known to be likely to cause death or bodily harm, and when such act has no legal justification or excuse. » R. S. 111. 1887, 1316. PAKTICCLAE OFFENSES. 129 (2) When death is caused by an omission, amounting to culpable negligence, to discharge a dutj' tending to the preser- vation of life, whether such omission is or is not accompanied by an intention to cause death or bodily harm. (3) When death is caused b\'^ an unlawful act.' § 61. The Moral Effect of the Charge.— Felonious homi cide was said by Sir William Blackstone to be the highest crime against the law of nature that man is capable of com- mitting. Of crimes injurious to both private persons and the public, the principal and most important is the offense of tak- ing away life, the immediate gift of the Creator, and of which, therefore, no man can be entitled to deprive another but in some manner expressly commanded in or evidently deducible from those laws which He has given us — the divine laws, either of nature or revelation. Although the offense has something of the heroic in its nature vrhen compared to insignificant or minor offenses, the murderer has in all ages of the world been looked upon by civilized society as the enemy of his race — a being to be shunned in mortal terror and to be abhorred above all things. Hence, it may well be said the moral effect of the charge is to place the person to whom it is imputed under the suspicion of his fellow-men and companions in society. As a murderer, the word expresses the idea as well as words can — a man upon ^vhom the revengeful though invisible hand of God is lifted ; the mark of Cain upon his brow. § 62. Words Imputing the Commission of the Offense.— The following words, sentences and phrases have been held to sufficiently charge the commission of the offense: (1) American cases: The words, "He knows how she came to her death. He killed her. He is to blame for her death. There was foul play there," impute a crime. But the words, " He killed her by his bad conduct, and I think he knows more about her being drowned than anybody else," import no charge of criminal homicide by themselves, and are not actionable without explanatory averments.^' Words charging homicide generally, without a charge that it was felonious, are actionable in themselves.' So are the iSteph. Crim. Dig., 143; Rapalje 2 Thomas v. Blasdale (Mass.), 18 & Lawrence Law, Diet., 614. N. E. Rep., 214, » Taylor v. Casey, Minor (A.la.), 258. 9 130 IMPUTATION OP CEIME. words, " They have killed my son and are trying to cheat me out of my land." " In room of her trying to help him she seemed to do all she could to hurry him out of the world." ' Any words spoken with intent to convey, and which reason- ably convey, the impression that a person has robbed par- ties and then murdered them are actionable.* An action lies for charging one with murder, and the plaint- iff may recover though it is shoWn that the person alleged to have been murdered is still alive, provided the by-standers un- derstood from the slander that he had been murdered.' So the words, "Tou have killed A. — you have poisoned him," are actionable, though at the time they were spoken A. was really living in a distant part of the country.* And where A. said to B., " You have killed one negro and nearly killed another," it was held that these words being capable of two construc- tions, it should be left to the jury to decide whether they were used in a defamatory sense or otherwise." " (2) English cases: " He broke his father's ribs, of which he died ; he may be hanged for the murder." * " Thou hast killed A."' "He dispatched his wife and will dispatch me too."' "He killed my wife." « "Thou didst do murder."" "Thou hast killed thy master's cook." " " I am thoroughly convinced that you are guilty of the death of Daniel Dolly; and rather than you should want a hangman, I will be your execu- tioner, — " ^^ have all been held to be sufBoient imputations of the commission of the offense. £ut it is not sufficient to say: "Hext seeks my life," be- cause he may seek his life lawfully upon just cause." "He was the cause of the death of Dowland's child," because a man might innocently cause the death of another by accident or 1 O'Connor v. O'Connor, 24 Ind., 7 2 Mod. Ca., 24. 318. 8 1 And., 120. 2 Harrison v. Findlay, 23 Ind., 265. 8 Cro. Eliz., 823. 3 Sugart V. Carter, 1 Dev, & B. (N. lo i Roll., 72, 1, 15. ^■) '^■' ^- " Cooper V. Smith, ero. Jac, 428; EFAMATION AFFIX TINO PERSONS IN OFFICES, ETC. 8. To charge a town clerk acting as moderator of a town meeting with fraudulently destroying a vote. Dodds v. Henry, 9 Mass., 263. 9. An article in a newspaper headed " An unwarranted outrage,'! charg- ing' a deputy-sherife with arresting peaceable and innocent men as tramps merely to get the fees allowed by law for such services, is actionable in it- self. Baureseau v. Detroit Ev. Jour. (Mich.), 30 N. W. Rep., 376. 10. To charge a county attorney with culpable neglect of his official duty in failing to prosecute, "purely out of political fear," a certain person sus- pected of having committed a criminal offense, was held actionable, for the reason that neglect from such a motive must be a gross offense, for which he might be removed from office. Larrabee v. Minn. Trib. Co., 86 Minn., 141; 30N.W. Bep.,462. 11. To charge any public officer falsely with gross ignorance of his duties is actionable. Spiering v. Andrae, 45 Wis., 830. 12. In Canada, where the" plaintiff was charged with being a public rob- ber — innuendo, that he, plaintiff, had defrauded the public in his dealings with them — it was held not necessary for plaintiff to aver that he is in any office, trade or employment in which he could have defrauded the public. Taylor V. Carr, 3 Up. Can., Q. B. Rep., 306. 13. The conduct of public officers is open to public criticism, but the groundless imputation of bad motives or of criminal offenses is not such criticism. Neebe v. Hope (Penn), 2 Atl. Eep., 568. 14. To impute to a public officer any official misconduct for the purpose of increasing his fees is actionable per se. Eviston v. Cramer, 47 Wis., 659 ; 3 N. W. Rep., 302. 15. Charging a commissioner in bankruptcy with being a misanthropist and violent partisan, stripping unfortunate debtors of every cent and then depriving them of the benefit of the act, is libelous. Biggs v. Denniston, 3 Johns. Cas. (N. Y.), 198. And so is an article representing the lieutenant- governpr as being in a beastly state of intoxication while in the discharge of his duty in- tlie senate— " an object of loathing and disgust." Root v. King, 7 Cow., 613; 4 Wend., 113. 16. But it is not actionable toithout proof of special damages to call a candidate for office "a corrupt old tcry " (Hogg v. Dorrah, 2 Port. (Ala.), 212); or to say of a justice of the peace 'Squire "Oakley is a damned old rogue," unless it appears that the words were spoken of him in his official capacity (Oakley v. Farrington, 1 Johns. Cas. (N. Y.), 129); or to impute weakness of understanding to a candidate for congress (Mayrant v. Rich- ardson, 1 N. & M. (S. C), 347); or to say of a magistrate, " There is a com- bined company here to cheat strangers, and 'Squire V. T. has a hand in it. He is a damned blackleg," for the reason that words spoken against a mag- istrate are not actionable because tending to injure Jiim in his office unless spoken of him in his official capacity — the words in question not imputing to him any misconduct as a magistrate. Van Tassel v. Capron, 1 Denio (N. Y.), 250. 17. Words charging the plaintiff, a justice of the peace, with omitting to inform a party who had recovered a judgment before him of the fact that the constable who had the execution had rendered himself liable for not ILLUSTEATIONS — DIGEST OF ENGLISH CASES. 1 79 returning the same in time, do not impute o£Scial misconduct. Van Tassel V. Capron, 1 Denio, 250. 18. To say of a member of the legislature in reference to the future dis- charge of his functions that " he is a corrupt old tory " is not actionable in itself. To be actionable such words must have been spoken in reference to his past conduct. Hogg v. Dorrah, 3 Port. (Ala.), 212. 19. 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 this state, for the arrest in another state of a fugitive from justice. Kenney v. Nash, 3 Corns., 177. 20. Where words are actionable only on account of the official or pro- fessional character of the plaintiff, it is not enough that they tend to in- jure him in his office or calling, but they must relate to his official or busi- ness character, and impute misconduct to him in that character. Van Tassel v. Capron, 1 Denio, 250. 21. A charge against a health officer of selling a coat belonging to one who had died in a hospital, and with concealing property belonging to the hospital, are not actionable without proof of special damages. Harcourt v. Harrison, 1 Hall (N. Y.), 474. 22. In order to render words actionable in themselves when spoken in reference to the official character or action of a person holding an office of profit, it is not necessary that they should import a crime, but it is suffi- cient if they charge incapacity or want of integi-ity, or corruption, in the officer. When an office is lucrative, words which reflect upon the in- tegrity or the capacity of the officer render his tenure precarious, and are therefore a detriment in a pecuniary point of view. Gove v. Blethen, 21 Minn., 80. 23. Charges made against the sheriff of a county that he was " a profane man," " a libertine," "untruthful," "ruining a young and innocent lady," " boasting of the influence of his office ... to crush any one who would oppose him," and that " he drew a pistol on a young lady for no other cause than exposing him in a crime which would send him to the state's prison," were held to relate to his private rather than to his official capacity. Com. v. Wardwell, 136 Mass., 164. § 13. Digest of English Cases.— 1. It is actionable without proof of special damage to say to a church- warden, "Thou art a cheating knave and hast cheated the parish of £40." Strode v. Holmes (1651), Styles, 338; 1 Roll. Abr., 58; Woodruff v. Wooley, 1 Vin. Abr., 463; Jackson v. Adams, 3 Bing. N. C, 403: 2 Scott, 599; 1 Hodges, 339. 2. To call an esoheator, attorney or other officer of a court of record an 'extortioner." Stanley v. Boswell, 1 Roll. Abr., 55. 3. To say of a town clerk that he hath not performed his office according to law (Fowell v. Cowe, Rolle's Abr., 56; Wright v. Moorhouse, Cro. Eliz., 358); or that he destroyed votes at an election. Dodds v. Henry, 9 Mass., 363. 4. To say of a constable, "He is not worthy the office of constable." Taylor v. How, Cro. Eliz., 861 ; 1 Vin. Abr., 464. iSO DEFAMATION AFFECTING PERSONS IN OFFICES, ETC. 5. To accuse a royal commissioner of taking bribes. Moor v. Foster, Cro. Jac, 6.5; Purdy v. Sfcacey, 5 Burr., 2698. (5. To say of a justice of the peace, "Mr. Stuckley covereth and hideth felonies, and is not worthy to be a justice of the peace;" for it is against his oath and the office of a justice of peace, and a good cause to put him out of the commission." Stuckley v. Bulhead, 4 Eep., 16; Sir John Harper V. Beamond, Cro. Jac, 56; Sir Miles Fleetwood v. Curl, Cro. Jac, 557; Hob., 368. 7. That "he is a Jacobite and for bringing in the Prince of Wales and popery ; " for this implies that he is disaffected to the established govern- ment and should be removed from office immediately (How v. Prin (1703), Holt, 653; 7 Mod., 107; 2 Ld. Raym., 813; 3 Salk., 694, affirmed in House of Lords sub nom. Prinne v. Howe, 1 Brown's Pari. Cases, 64); to insinu- ate that he takes bribes or "perverts justice to serve his own turn." Caesar v, Curseny, Cro. Eliz., 305; Cam v. Osgood, 1 Lev., 380; AUeston v. Moor, Hetl., 167; Masham v. Bridges, Cro. Car., 333; Isham v. York, Cro. Car., 15; Beamond v. Hastings, Cro. Jac, 240; Aston v. Blagrave, 1 Str., 617; 8 Mod., 370; 2 Ld. Eaym., 1369; Fort., 206; Lindsey v. Smith,' 7 Johns., 359. ; 8. Thus, "Tou are a sweet justice; you sent your warrant for J. S. to be brought before you on suspicion of felony and afterwards sent J. D. to give him warning thereof that he might absent himself." Burton v. Tokin, Cro. Jac, 148. 9. But it is not actionable without proof of special damage to impute in- sincerity to a member of parliament (Onslow v. Home, 3 Wils., 177; 3 W. Bl., 750); to say of a justice of the peace, "He is a logger-headed, a slouch-headed, bursen-bellied hound " (R. v. Farre, 1 Keb., 639) ; or " He is a blood-sucker and sucketh blood;" "for it cannot be intended what blood he sucketh" (Sir Christopher Hillard.v. Constable, Cro. Eliz., 806; Moore, 418) ; or " He is a fool, an ass, and a beetle-headed justice ; " for these are but general terms of abuse, and disclose no ground for removing the plaintiff from office. Bill v. Neal, 1 Lev., 53; Sir John Hollis v. Briscow et ux., Cro. Jac, 58. 10. Lord Holt: It has been adjudged that to call a justice of the peace blockhead, ass, etc., is not a slander for which an action lies, because he was not accused of any corruption in his employment, or any ill design or principle; and it was not his fault that he was a blockhead, for he cannot be otherwise than his Maker made him; but if he had been a wise man, and wicked principles were charged upon him when he had not them, an action would have lain ; though a man cannot be wiser, he may be honester than he is. Howe v. Prinn, Holt, 653; Salk., 694. Since no special learn- ing or ability is expected of a justice of the peace, it is not actionable to call him a " fool," " ass," "blockhead," or any other words merely imput- ing want of natural cleverness or ignorance of law. But words which im- pute to him corruption, dishonesty, extortion or sedition are actionable in themselves. Bill v. Neal, 1 Lev., 53; How v. Prin, Holt, 652; 3 Salk., 694; 2Ld. Raym., 812; 7 Mod., 107; 1 Bro. Pari. C, 64; Aston v. Blagrave, 1 Str., 617; 8 Mod., 370; Port., 306; 3 Ld. Raym., 1369. DEFINITION OF TEEMS. 181 § 14. Meaning of the Terms Actionable per se, In Tliem- selves and Actionable without Proof of Special Damages — Illustrations. — -"When language is used concerning a person or his affairs wiiich from its nature necessarily must, or pre- sumably will as its natural and proximate consequence, occa- sion him pecuniary loss, its pahlication prima facie constitutes a cause of action and prima facie constitutes a wrong without any allegation or evidence of damage other' than that which is implied or presumed from the fact of publication; and this is all that is meant by the terms "actionable per se," etc. Therefore the real practical test by which to determine whether special damage must be alleged and proven in order to make out a cause of action for defamation is whether the language is such as necessarily must or naturally and presumably will occasion pecuniary damage to the person of whom it is spoken. Of course it can be readily seen that a false statement might be made regarding, for example, a ph3'sician's conduct in a particular case, ascribing to hjm only such want of information , or good management as is compatible with general skill and care in his profession, and no damage to his professional char- acter would be presumed. The false statement might ascribe to him an error or mistake of a kind that would not necessa- rily do him prejudice, because rather indicative of human im- perfection than of general professional incompetency or gross disregard of professional duty. But on the other hand, it is evident that a false report con- cerning a physician, although confined to his conduct in a par- ticular case, and although it neither imputes to him a crime nor general professional incompetency, may nevertheless imply such gross ignorance, or such gross and reckless or inhuman disregard for the health or life of his patient in that pai'tioular instance as necessarily to injure his professional reputation, and hence cause him pecuniary damage. Such a charge is actionable without alleging special damage, because damage must be presumed as its necessary or natural effect. Such charges are more than ordinary criticism. They are not merely charges of simple neglect or oversight. For example, to charge a physician with allowing "the decomposing body of a dead infant to remain for several days in the room with the sick mother " is in effect a charge of gross, culpable and almost 1S2 DEFAMATION AFFECTING PEESONS IN OFFICES, ETC. inhuman neglect or oversight, evincing a reckless disregard of the life and health of his patient. The natural and necessary- effect of such a charge against a physician, if believed, would be to injure his professional reputation, and if so, the charge is actionable without proof of special damage.' § 15. Imputation of a Want of Special Knowledge, etc. — In all cases where a special kind of learning is essential to the proper conduct of a particular trade or profession, words as- serting that a party v^'ho belongs to such a trade or profession does not possess such special learning is actionable without proof of special damages. Hence' to impute duncehood or want of scholarship generally to a member of either of the learned professions touches his profession.^ This principle will be found also to govern the numerous cases respecting attor- neys and apothecaries. The duties of an attorney requiring integrity and knowledge of the law, any general imputation of dishonesty, or a,ny imputation of ignorance of the law, would of course, be slanderous.'. The practice of an apothe- cary requires skill in medicine, and any imputation of a want of such skill would be slanderous.^ Want of skill, knowledge or diligence to a person exercising an art must be imputed with reference to the particular situation of the plaintiff or it will not be actionable.' § 16. Illustrations — Digest of American Cases.— 1. It is actionable without proof of special damages to charge a couiiselor at law with offering hia services to his client in order to divulge his secrets. Eiggs V. Deunison, 3 Johns. Gas. (N. Y.), 198. 2. Words spoken falsely and maliciously of a physician, imputing to him a want of skill and good management in his treatment of a particular case, are actionable without proof of special damage, if the jury can infer dam- ages in his profession as the natural and probablp consequence of such words. Sumner v. Utley, 7 Conn., 258; Garr v. Selden, 6 Barb. (N. Y.), 416. 3. And it has been held that the words, " Dr. A. killed my children. He gave them teaspoonful doses of calomel, and it killed them. They did not 1 Secor V. Harris, 18 Barb. (N. Y.), apeard v. Jones, Cro. Car., 382; 425; Carroll v. White, 33 Barb. (N. 6 Bac. Abr., 315. Y.),616;Bergoldv.Putcha,2Thomp. 3 4 Rep., 16; Cro. Car., 192; Cro. & C, 532; Johnson v. Cobertson, 8 Jac, 586; 3 Wils., 59; 2 Esp., 624. Port., 486; Tutty v. Alewin, 11 Mod., <1 N. R, 196. 231; Onslow v. Home, 8 Wils., 177; 5 Tutty v. Alewin, 11 Mod., 321; Pratt V. Pioneer Press Co., 35 Minn., Flower's Case, Cro. Car., 311; Eed- 251 ; 38 N. W. Eep., 708 ; Summer v. man v. Pyne, 1 Mod., 19, Utley, 7 Conn., 357. ILLUSTRATIONS — DIGEST OF ENGLISH CASKS. 183 live long after they took it. They died right off, the same day," are action- able In themselves. Secor v. Harris, 18 Barb. (N. Y.), 425. 4. Words imputing to a mechanic the want of skill or knowledge in his craft are actionable, without proof of special damage, if they are clearly shown to have been spoken with reference to the plaintiflE's occupation, and the employment is one requiring peculiar knowledge and skill. Fitzgerald V. Redfield, 51 Barb. (N. Y.), 484. 0. But it is not actionable without proof of special damage 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 " (Foot v. Brown, a Johns. (N. Y.), 64); or to say of a physician, " In my opinion'the bitters that A. fixed for B. were the cause of his death," for such words do not in their usual sense import a charge of murder. Jones v. Diver, 32 In'd., 184. 6. Imputing to a professional man ignorance or want of skill in a particu- lar transaction is not actionable ; but words imputing to him a want of in- tegrity in his profession, or in a particular professional transaction, are actionable. Garr v. Selden, 6 Barb., 416. §17. Digest of English Cases.— 1. It is actionable without proof of special damages to say of a barrister, " He is a dunce, and will get little by the law " [though here it was argued for the defendant that Duns Scotus was "a great learned man;" that though to call a man " a dunce " might in ordinary parlance imply that he was dull and heavy of wit, yet it did not deny him a solid judgment ; and that to say " he will get little by the law " might only mean that he did not wish to practice]. Peard v. Jones, Cro. Car., 382. 2. To say of a midwife, "Many have perished for her want of skill." Flowers' Case, Cro. Car., 211. 3. To charge an apothecary with having caused the death of a child by administering to it improper medicines. Edsall v. Russell, 4 M. & Gr., 1090 ; 5 Scott, N. R., 801 ; 2 Dowl. (N. S.), 641 ; 13 L. J., C. P., 4; 6 Jur., 996;Tutty V. Ale win, 11 Mod., 231. 4. Where an architect is engaged to execute certain work, it is a libel upon him in the way of his profession to write to his employers asserting that he has no experience in that particular kind of work, and is therefore unfit to be intrusted with it. Botterill and another v. Whytehead, 41 L. T,, 588. 5. To say of an attorney, " He can't read a declaration " (Powell v. Jones, 1 Lev., 297); or "He has no more law than Master Cheyny's bull," or "He has no more law than a goose." Baker v. Morfue, vel Morphew, Sid., 327; 2 Keble, 202. 6. According to the report in Keble, an objection was taken in this case on behalf of the defendant that it was not averred in the declaration "that Cheyny had a bull, ned non allocatur, for the scandal is the greater if he had none." And the court adds a solemn qucere as to saying " He has no more law than the man in the moon," feeling no doubt a difficulty as to ascertaining the precise extent of that individual's legal acquirements, But in Day v. BuUer, 3 Wils., 59, the court strangely decides that it is defama- tory to say of an attorney that " he is no more a lawyer than the devil ! " Odgers on L. & S., 71. ISi DKFAIIATIOX AFFECTIXG PEKSONS IN OFFICES, ETC. 7. To say of a physician that " he is no scholar," "because no man can be a good physician unless he be a scholar." Cawdrey v. Highley, al. Tythay, Cro. Car., 370; Godb., 441. 8. To say of the deputy of Clarencieux, king-at-arms, " He is a scrivener and no herald." Brooke v. Clarke, Cro. Eliz., 328; 1 Vin. Abr., 464. But since no special learning or ability is expected of a justice of the peace it is not actionable to call him "fool," "ass," "blockhead," or any other words merely imputing want of natural cleverness or ignorance of law. But words which impute to him corruption, dishonesty, extortion or sedi- tion are actionable of coursev Bill v. Neal, 1 Lev., 52; How v. Prin, Holt, 652? 2 Salk., 694; 3 Ld. Raym., 812; 7 Mod., 107; 1 Bro. Pari. C, 64; Aston V. Blagi-ave, 1 Str., 617; 8 Mod., 370; Fort, 206; 3 Ld. Raym., 136 1. § 18. Attorneys and Solicitors. — The duties of attorneys re- quiring integrity and knowledge of the law, any general im- putation of dishonesty, or any imputation of ignorance of the law, will of course be defamatory.' For exaw.fle: It is actionable, without proof of special dam- age, to charge an attorney with offering his services to his client in order to divulge his secrets,^ or with revealing or dis- closing confidential communications made to him by a client for the purpose of aiding and abetting another person with whom he had combined and colluded, and of injuring his client.' § 19. Illustrations — Digest of American Cases. — 1. It is actionable without proof of special damage to say of an attorney or counselor at law, " He is not a man of integrity and is not to be trusted ; he will take fees on both sides of a cause." Chipman v. Cobke, 2 Tyler (Vt.), 456. 2. To charge a counselor at law with offering his services to his client in order to divulge his secrets is libelous. Riggs v. Dennison, 3 Johns. Gas. (N. Y.), 198. 3. To charge an attorney with revealing and disclosing confidential com- munications made to him by his client for the purpose of aiding and abet- ting another person with whom he has combined and colluded, and of injuring his client. Gau v. Selden, 6 Barb. (N. Y.), 416. 4. To call an attorney a "cheat" is actionable, even though an indictable offense is not imputed. Rush v. Cavanaugh, 3 Penn. St., 187. 5. Where, in a conversation concerning an attorney's professional skill, the defendant called him "a damned rascal," under the circumstances it was held that these words were actionable without proof of special dam- ages. Brown v. Mims, 2 Treadw. (S. C.) Const., 335. So to charge an at- 1 Cooke on Defamation, 14; Barker 2 Riggs v. Dennison, 3 Johns. Gas. V. Morfue, Sid., 327; 2 Keb., 202; (N. Y.), 198. Powell V. Jones, 1 Lev., 397. 3 Gau v. Selden, 6 Barb. (N. Y.), 416; 4Gomst., 91. ILLUSTRATIONS — DIGEST OF ENGLISH CASES. 185 torney with professional misconduct. Atkinson v. Detroit Free Press, 48 Mich., 341: 9 N. W. Rep., 501. C. But it is not actionable without proof of special damage to say of an attorney or counselor at law in a particular suit, " He knows nothing about the suit. He will lead you on until he has undone you." Foot v. Brown, 8 Johns. (N. Y.), 64. § 20. Digest of English Cases.— i. Itis actionable without proof of special damages to say of an attorney, "He is an ambidexter," i. e., one who being retained by one party in a cause, and having leai-nt all his secrets, goes over to the other side and acts for the advei-sary. Such conduct was subject for a qui tarn action under an old penal statute. Rastell's Entries, p. 3, Action sur le case vers Attor- ney, 3; Annison v. Blofield, Carter, 314; 1 Roll. Abr., 55; Shire v. King, Yelv., 33. 2. To impute that he wjll betray his clients' secrets and overthrow their cause. Marty n v. Biu-lings, Cro. Eliz., 589. 3. To say of an attorney, "He is a very base rogue and a cheating knave, and doth maintain himself, his wife and children by his cheating." Anon. (1638), Cro. Car., 516. See Jenkins v. Smith, Cro. Jac, 586. 4. To say of an attorney that " he hath the falling sickness ;" for that disables him in his profession. Taylor v. Perr (1607), 1 RoUe's Abr., 44. 5. To say of an attorney, " What, does he pretend to be a lawyer? He is no more a lawyer than the devil ; " or any other words imputing gross igno- rance of law. Day v. Buller, 8 Wils., 59; Baker v. Morfue, Sid., 337; 3 Keb., 303; Powell v. Jones, 1 Lev., 397. ' 6. To say of an attorney, "He is only an attorney's clerk, and a rogue; he is no attorney," or any words imputing that he is not a fully qualified practitioner. Hardwick v. Chandler, 3 Stra., 1138. 7. Tochargeanattorney with barratry, champerty or mainter(ance. Boxe V. Barnaby, 1 Roll. Abr., 55; Hob., 117; Proud v. Hawes, Cro. Eliz., 171; Hob., 140; Taylor v. Starkey, Cro. Car., 193; 9 Bac. Abr., 51. 8. To say to a client, "Your attorney is a bribing knave, and hath taken twenty pounds of you to cozen me." Yardley v. Ellis, Hob., 8. !). To say of an attorney, "He stirred up suits, and once promised me that if he did not recover in a cause for me he would take no charges of me : " " because stirring up suits is ban-atry, and undertaking a suit, no pur- chase no pay, is maintenance." Smith v. Andrews, 1 Roll. Abr., 54; Hob., 117; 9 Bac. Abr., 51. 10. To assert that an attorney has been guilty of professional misconduct and ought to be struck off the rolls. Byrchley's Case, 4 Rep., 16; Phillips V. Jansen, 2 Esp., 634; Wartin v. Gearing, 1 Vict. L. R,, C. L., 133; 9 Bac. Abr., 51. 11. But it is not actionable without proof of special dcCmages to say of an attorney, ' ' He has defrauded his creditors and has been horse-whipped off the course at Doncaster ; " for it is no part of his professional duties to attend horse-races, and his creditors are not his clients. Doyley v. Roberts, 3 Bing. N. C, 835; 5 Scott, 40; 3 Hodges, 154; 9 Bac. Abr., 51. 12. Nor to abuse him in general terms, such as "cheat," "rogue" or "knave;" though to say, "You cheat your clients," would be actionable. Alleston v. Moor, Het., 167 ; Bishop v. Latimer, 4 L. T., 775 ; 9 Bac. Abr., 51. 186 DEFAMATION AFFECTING PEESONS IN OFFICES, ETC. § 21. Barristers at law. — Barristers may sue for words touching tliem in their profession, although their fees are hon- orary. The loss of a gratuity is special damage.' § 22. Illustrations — Digest of English Cases.— 1. It is actionable without proof of special damages to say of a barris- ter: "Thou art no lawyer; thou canst not make a lease; thou hast that de- gree without desert; they are fools who come to thee for law." Bankes v. Allen, 1 Roll. Abr., 54. Oi-, "He hath as much law as a jackanapes.'' Palmer v. Boyer, Owen, 17; Cro. Eliz., 343; Broke's Case, Moore, 409; Caw- drey V. Tetley, Godb., 441. It is said that had the words been " He has no more wit than a jackanapes," no action would have lain, wit not being es- sential to success at the bar, according to F. Pollock, 3 Ad. & E., 4. Or, " He has deceived his client and revealed the secrets of his cause." Snag V. Gray, 1 Roll. Abr., 57; Co. Entr., 23. Or, " He will give vexatious and ill counsel, and stir up a suit and milk her puFse, and fill his own large pockets." King v. Lake, 3 Ventr., 38; Hardres, 470. 2. When a plaintiff who was a barrister gave counsel to divers of the king's subjects : The defendant said to J. S. [the plaintiff's father-in-law], concerning the plaintiff, "He is a dunce and will get little by the law." J. S. replied, "Others have a better opinion of liim." The defendant an- swered, " He was never but accounted a dunce in the middle temple.'' ' Held, that the words were actionable though no special damage was alleged. Peard v. Jones, Cro. Car., 383. § 23. Clergymen and Ministers of the Gospel. — Words are often actionable when spoken of clergymen which would not be so if spoken of others.^ Bat it does not follow that all words which tend to bring a clergyman into disrepute or which merely impute that he has done something wrong are actionable without proof of special damage. The reason al- Avays assigned for this distinction between clergymen and others is that the charge, if true, would be ground of degrada- tion or deprivation.' The imputation, therefore, must be such as, if true, would tend to prove him unfit to continue his call- ing, and therefore tend more or less directly to proceedings by the proper authorities to silence him. So to say of a clergy- man he is a rogue or a drunkard, because these words, if believed, must deprive him of that respect, veneration and confidence without which he can expect no hearers as a min- ister of the Gospel. The reason why these expressions are iBracebridge v. Watson, Lilly. ^ Drake v. Drake, 1 Roll. Abr., 58; Extr., 61; Hartley v. Henning, 8 T. Dodd v. Robinson (1648), Aleyn, 68; ^< ^30. Peraberton v. Colls, 10 Q. B., 461; 16 2Galway v. Marshall, 9 Ex., 394; L. J., Q. B., 403; 11 Jur 1011 23 L. J., Ex., 78; 2 C. L. R., 399. ILLUSTRATIONS — DIGEST UF AMEKICAN OASES. 187 actionable when applied to persons of certain professions is because from the nature of the case it is evident that damage must ensue.' For example: It is actionable, without proof of a special dam- age, to falsely and maliciously charge a settled minister of the Gospel with being drunk, and with having had a drunken frolic, so that he was unable to go home, but staggered to- wards another house, where he remained all night; "- or to say he is a drunkard, a common swearer, a common liar, and hath preached false doctrine and deserves to be degraded, for such matters are good cause to have him degraded; ' or, '' he is a rogue and a dog, and will never be good till he is three feet underground. I had rather my son should make hay on a Sunday than to go hear him preach ;" * or, " he is an old rogue and a contemptible fellow, and hated and despised by every- bod}' ; " ■' or, " he preacheth nothing but lies and malice in the pulpit." * § 24. Illustrations — Digest of American Gases. — 1. It is actionable without proof of special damages to say of a minister of the Gospel, " Old Cliaddocli staid at our house last night and was pretty devilish drunk. He was so drunk he could not find his key. He made out to stagger up to the house. He was drunk." " Mr. Chaddock has had a drunken frolic this week. He and a party went out getting hay, got back to our house, and he got so drunk he could not get home." Chaddock v. Brigga, 13 Tyng (Mass.), 252. To say of a preacher, "He is a drunkard." McMillan v. Birch, 1 Binn. (Penn.), ITS. But, contra, see O'Hanlon v. Myers, 10 Rich. (S. C), 128. 2. To impute incontinence — the indulgence in unlawful carnal connec- tions — to a clergyman is actionable. Demarest v. Haring, 6 Cow. (N. Y.), 76. 3. Words charging a clergyman with drunkenness, alleged to have been spoken of him in his profession, are actionable in themselves. Hayner v. Ctowden, 27 Ohio St., 292. 4. There are some authorities which hold that to charge a minister of the Gospel with being a drunkard are not actionable without proof of special damages. Cucks v. Stone, Cro. Car., 285;. Tighe v. Wicks, 33 Upper Can- ada, Q. B. Rep., 470; Buck v. Hersey, 31 Maine (1 Red.), 558; O'Hanlon v. Meyers, 10 Rich. Law (S. C), 128. But the weight of modern authorities seems to be the other way. 1 McMillan v. Birch, 1 Binn, 184 ; * Pocock v. Nash, Comb, 258. Demarest v. Haring, 6 Cow. (N. Y.), SMusgrave v. Bovey, Stra., 946. 76_ 6 Cranden v. Nolden, 3 Lev. 17 ; 9 2 Chaddock v. Briggs, 13 Mass., 248. Bac. Abr., 48. »Dodd V. Robinson (1648), AJeyn, 63. 188 DEFAMATION AFFKOTING PERSONS IN OFFICES, ETC. § 25. Digest of English Cases. — 1. It is actionable without proof of special damage to say to a parson, "Thou hast made a seditious sermon, and moved the people to sedition to- day." Phillips, B. 'd. v. Badby, cited in Bittridge's Case. 4 Rep., 19. 2. To say of a parson, " He preaches nothing but lies and malice in the pulpit ; '• for the words are clearly spoken of hiui in the way of his profes- sion. Crauden v. Walden, 3 Lev., 17; Bishop of Sarum v. Nash, B. N. P., 9; Willes, 23. And see Pocock v. Na-sh, Comb., 253; Musgrave v. Bovey, 2 Str., 946. 3. To charge a clergyman with immorality and misappropriation of the sacrament money is clearly actionable. Damages, £750. Highmore v. Karl and Countess of Harrington, 3 C. B. (N. S.), 142. And, of course, to charge a clergyman with having indecently assaulted a woman on the highway is actionable. Evans v. Gwyn, 5 Q. B., 844. 4. To say of a beneficed clergyman that he drugged the wine he gave the speaker, and so fraudulently induced him to sign a bill of exchange for a large amount, is actionable without proof of special damage ; but it is not actionable merely to say of a beneficed clergyman, " He pigeoned me." Pemberton v. Colls, 10 Q. B., 461; 16 L. J., Q. B., 403; 11 Jur., 1011. 5. To say of a bishop that "he is a wicked man " is actionable without special damage. Per Soroggs, J., in Tounshend v. Dr. Hughes, 2 Mod., 160. But this is only because the statute of Scandalum Magnatum, 2 Rich. II., Stat. 1, ch. 5, expressly mentions "prelates." See note to 10 Q. B., p. 469. 6. To say of a parson that " he had two wives; " for though bigamy was not made felony till 1603, still in 1588 it was "cause of deprivation.'' Nich- olson V. Dyne, Cro. Eliz., 94. 7. To say that "he is a drunkard, a whoremaster, a common swearer, a common liar, and hath practiced false doctrine, and deserves to be de- graded;" for "the matters charged are good cause to have him degraded, whereby he should lose his freehold." Dod v. Robinson, Aleyn, 63; Dr. Sibthorpe's Case, W. Jones, 356; 1 Roll. Abr., 76. 8. To say "he preacheth lies in the pulpit;'' " car ceo est bon cause de deprivation." Drake v. Drake, IRoll, Abr., 58; 1 Vin. Abr., 473. [These esses clearly overrule Parret v. Carpenter, Noy, 64; Cro. Eliz., 502, wherein it was held that an action could lie only in the spiritual court for saying of a parson : "Parret is an adulterer, and hath two children by the wife of J. S., and I will cause him to be deprived for it.'' See the re- marks of Pollock, C. B., 23 L. J., Ex., 80.] Odgers on L. & S., 75. 9. But it is not actionable without proof of special damages to charge a clergyman with incontinence, unless he hold some benefice or preferment, or some post of emolument, such as preacher, curate, chaplain or lecturer. Gallwey v. Marshall, 9 Exch., 294; 23 L. J., Ex., 78; 2 C. L. R., 399. 10. To say of one who had been a linen-draper, but at time of publication was a dissenting minister that he was guilty of fraud and cheating when a linen-draper, is no slander of the plaintiff in his ofiice of dissenting minis- ter. Hopwood v. Thorn, 8 C. B., 293; 19 L. J., C. P., 94; 14 Jur., 87. 11. To say to a clergyman, " Thou art a drunkard," is not of itself action- able ; but it is submitted that to impute to a clergyman habitual drunken- ness, or drunkenness whilst engaged in the discharge of his official duties. MEDICAL MEN, ETC. — THE LAW STATED. 1S9 would be actionable. Cucks v. Starre, Cro. Car., 885; Tighe v. Wicks, 83 Upper Canada, Q. B. Rep., 470. § 26. Medical Men — Physicians — Surgeons — Apotheca- ries — Pharmacists. — Any words imputing to any person en- gaged in the practice of the medical profession, including apothecaries, pharmacists, accoucheurs and midwives, miscon- duct or incapacity in the discharge of professional duties are actionable without proof of special damages.* § 27. The Law Stated. — A physician is only required to possess the ordinary knowledge and skill of his profession. He may possess them and much more, and yet be unable to ac- curately diagnose every disease presented, or always foretell the exact power and effect of medicine or treatment prescribed ; but such deficiencies are incidents to human imperfections. So long, therefore, as the words employed in stating the conduct of the physician in a particular case only impute to him such ignorance or want of skill as is compatible with the ordinary and general knowledge and skill in the same profession, they are not actionable in themselves. But where the words so employed in detailing the action of the physician in a particu- lar case taken together are such as fairly impute to him gross ignorance or unskilfulness in such matters as men of ordinary knowledge and skill in the profession should know and do, then they necessarily tend to bring such physician into pub- lic hatred, contempt, ridicule or professional disrepute, and hence are actionable in themselves.' § 28. Illustrations — Digest of American Cases. — 1. It is actionable without proof of special damages to say of a physi- cian : " Dr. S. killed my children. He gave them spoonful doses of calomel, and it killed them. They did not live long after they took it. They died right off — the same day." Secor v. Harris, 18 Barb. (N. Y.), 425. iCamp V. Martin, 23 Conn., 86;Gau 'Ganvreau v. Superior Publishing V. Selden, 6 Barb. (N. Y.), 416; Day Co., 63 Wis., 403; 22 N. W, Rep., V. Buller, 3 Wils., 59; Poe v. Mond- 726; Bradley v. Cramer, 50 Wis., 312, ford, Cro. Eliz., 620; Watson v. Van- 313; 18 N. W. Rep., 268; Southee v. derlash, Hetl., 71; Southee v. Denny, Denny, 1 Exch., 203; Edsall v. Rus; 1 Exch.. 196; 17 L. X. Ex., 151; Ed- sell, 43 E. C. L., 660; Bishop v. Lati- sall V. EusseU, 4 M. & Gr., 1090; 12 mer, 4 Law T., 775; Camp v. Martin, L. J., C. P., 4; 5 Scott, N. R., 801; 3 23 Conn., 86; Bowe v. Rogers, 50 DowL (N. S.), 641 ; 6 Jur., 996; Foster Wis., 598; 7 N. W. Rep., 547. V. Scripps, 39 Mich., 876 j 38 Amer. R., 403. 190 DEFAMATION AFFECTING PERSONS IN OFFICES, ETC. 2. " He killed the child by grving it too much calomel." Johnson v. Rob- ertson, 8 Porter (Ala.), 486. 3. " He is no doctor. He bought his diploma for |50." Bergold v. Puchta, 2 Sup. Ct. N. Y. (T. & C), 532. 4. " He killed six children in one year." Carool v. White, 33 Barb. (N. Y.). 615. 5. " The bitters Dr. Diver gave John Smith caused his death. There was poison enough in them to kill ten men." Jones v. Diver, 22 Ind., 184. 6. Where the words spoken of a professional man only impute want of skill in a particular case they are not actionable in themselves. Woodbury V. Thompson, 3 N. H., 194; Fry v. Bennett, 28 N. Y., 324. 7. But to charge a physician with want of skill and good management in his treatment of a patient, if the jury can infer from the evidence special damage to him in his profession as the natural or probable consequence of such words, are,actionable. Camp v. Martin, 28 Conn,, 86; Sumner v. TJtr ley, 7 Conn., 258. 8. To charge, maliciously, a physician with ignorance and unskilfulness in his profession is actionable perse. Cruikshank v. Gordon, 48Hun(N.Y.), 308. 9. But it is not actionable without proof of special damage to say of a physician, "In my opinion the bitters that he fixed for Smith were the cause of his death," for such words do not in their usual sense import a charge of murder. Jones v. Diver, 22 Ind., 184. 10. To charge a person, not legally authorized to practice medicine as a profession, with having destroyed the life of a patient by mistaken but legal and well-meant effort to save his life. March v. Davison, 9 Paige, 580. And it has been held in Ohio not actionable to say of a physician, " He is so steady drunk he cannot get business any more." Anon., 1 Ohio, 83, n. 11. Or to say "he is a two-penny bleeder." Foster v. Small, 2 Whart. (Penn.), 188. 12. It is not actionable in itself to say of ,a physician that he acted hast- ily in amputating an arm and did not make the amputation on his own judgment, or that he had better have cut off the left arm than the right. Lynch v. Johnson, 89 Hun (N. Y.), 12. 13. It seems the pprson must be lawfully authorized to practice the pro- fession. One who is not a regular physician or surgeon, nor authorized to practice as such, being unable by statute to recover for his services as a physician, cannot maintain an action of slander against one who charges him with malpractice, unless the charge is of an oflEense which involves moral turpitude, or would subject him to an infamous punishment. The Statute, however, does not extend to such as deal only in roots, barks or herbs, the growth or produce of the United States ; and charging such a , practitioner with having killed a patient through mere ignorance of the dangerous nature of the roots, etc., administered is not actionable. But otherwise if the charge be that he destroyed the life of another by the use of poisonous roots, etc., with a full knowledge of their deleterious effects. March v. Davison, 9 Paige, 580. § 29. Digest of English Cases.— 1. It is actionable without proof of special damages to charge any medical man or apothecary with either ignorantly or unskilfully adminis- LEARNED PEOFESSIONS AND TRADES. 191 tering the wrong medicines or in excessive doses. Collier, M. D., v. Simp- son, 5 C. & P., 73; Tutty v. Alewin, H Mod., 221. 2. To call a practicing medical man "a quack-salver," or "an empiric," or a " mountebank." Allen v. Eaton, 1 Roll. Abr., 64; Goddart v. Hasel- foot, 1 Viner's Abr. (S. a.), pi. 13; 1 Roll. Abr., 54. 3. To say of a surgeon to his patient, " 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 persons have died that he had attended, and there have been inquests held on them,'' was held actionable in Southee v. Denny, 1 Exch., 196; 17 L. J., Ex., 151. 4. To accuse any physician, surgeon, accoucheur, midwife or apothecary with having caused the death of any patient through his ignorance or cul- pable negligence. Poe v. Mondford, Cro. Eliz., 630; Watson v. Vanderlash, Hetl., 71 ; Southee v. Denny, 1 Exch., 196; 17 L. J., Ex., 151 ; Edsall v. Rus- sell, 4 M. & Gr., 1090; 13 L. X, C. P., 4; 5 Scott, N. R., 801 ; 3 Dowl. (N. S.), 641 ; 6 Jur., 996. 5. But it is not actionable without proof of special damages to say of a surgeon, " He did poison the wound of his patient," without some aver- ment that this was improper treatment of the wound, for else " it might be for the cure of it.'' Suegoe's Case, Hetl., 175. 6. To call a person who practices medicine without full legal qualification "a quack" or "an impostor," for the law only protects lauful employ- ments. Collins V. Carnegie, 1 A. & E., 695; S N. & M., 703. 7. To charge a physician with adultery unconnected with his professional conduct. It would be otherwise if he had been accused of seducing or com- mitting adultery with one of his patients. Ay re v. Craven, 2 A. & E., 3; 4 N. & M., 220. 2. To say of an accoucheuse, "A lady who has established a medical college at has issued a prospectus, in which my name appears as presi- dent. I have sanctioned the issue of no prospectus with my name in it. I wish to know what remedy I have," was held no slander on her in the way of her trade. Brent v. Spratt, Times, Feb. 3, 18S2. 9, Dawes intended to employ the plaintiff, a surgeon and accoucheur, at his wife's approaching confinement, but the defendant told Dawes that the plaintiffs female servant had had a child by the plaintiff. Dawes conse- quently decided not to employ the plaintiff. Dawes told his mother and his wite's sister what defendant had said, and consequently the plaintiff's practice fell off considerably among Dawes' friends and acquaintances and others. The fee for one confinement was a guinea. Held, that the action lay, special damage being proved ; that the plaintiff was entitled to more than the one guinea damages; that the jury should give him such sum as they considered Dawes' custom was worth to him ; but that the jury clearly could not in this action give him anything for the general decline of his business. Dixon v. Smith, 5 H. & N., 450; 29 L. J., Ex., 125;'odgers on L. &8., 78. § 30. Other Learned Professions and Trades — Architects, Dentists, Teachers, Surveyors, Mechanics, and the Like.— To impute incompetency to any person practicing tbe art of 192 DEFAMATION AFFECTING PERSONS IN OFFICES, ETC. architecture, dentistry, school-teaching or land-snrveying, me- chanical trades, and the like, is actionable without proof of special damages. "Words imp(uting to a mechanic a want of skill or knowledge in his craft are actionable in themselves if thej' are clearly shown to have been spoken in reference to the party's occupation, and the occupation is one requiring peculiar knowledge and skill. There is no distinction recog- nized by the authorities in this regard between a learned pro- fession and a mechanical trade.' § 31. Illustrations — Digest of American Cases. — 1. It is actionable without proof of special damages to say of an ar- chitect: "The poor fellow is crazy." " His appointment as architect of a public building can be regarded in no other light than as a public calamity." Clifford V. Cochrane, 10 Brad. (111.), 570. 2. To say of a brick 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," Fitzgerald v. Redfield, 51 Barb. (N. Y.), 484. § 32. Digest of English Cases.— 1. It is actiotiable without proof of special damages to say of an archi- tect engaged to restore a church that he has no experience in church work (Botterill and another v. Whytehead, 41 L^ T., 588); or to say of a land-sur- veyor, in the way of his trade, " Thou art a cozener and a cheating knave, and that I can prove." London v. Eastgate, 3 Eolle's Rep., 72. 2. To say of a schoolmaster: "Put not your son to him, for he will come away as very a dunce as he went " (Watson v. Vanderlash, Hetl., 71); or to accuse a schoolmaster of habitual drunkenness. Hume v. Marshall, 43 J. P., 136; Brandrick v. Johnson, 1 Vict. L. R., C. L., 308. § 33. Imputations upon the Credit of Merchants and Traders.— The law guards most carefully the credit of all merchants and traders. Any imputation on their solvency, any suggestion that they are in pecuniary difficulties, is therefore actionable without proof of special damages. In actions of slander for words affecting the pecuniary credit of a mer- chant it need not be averred nor proved that they were spoken in relation to his occupation as a merchant; for in their nature they strike at the root of the mercantile character.'' § 34. The Extent of the Kule.— The rule is well settled in the United States that words spoken of a person in his office, business or employment, imputing a want of integrity, of credit, of common honesty, are actionable without proof of » Fitzgerald v. Redfield, 51 Barb. 'Davis v. Ruff, Cheves (S. C), 17; (N. T.), 484. Sewall v. Catlin, 8 Wend. (N. Y.),'291.' OCCUPATIONS WHERE CKEDIT IS ESSENTIAL. 193 special damages; and any lawful employment or situation of trust, lucrative or confidential, is within the rule.' § 35. Persons Engaged in Occupations where Credit is Es- sential. — Of merchants, tradesmen and othei's in occupations where credit is essential to the successful prosecution, any lan- guage is actionable without proof of special damages which imputes a want of credit or responsibility or insolvency; and generally it may be said of all person^ who carry on any trade recognized by law, or are engaged in any lawful employment, however humble, an action lies for any words falsely and ma- liciously spoken which prejudice them in the way of such trade or employment, provided the words are spoken of and concern- ing such trade or employment, and " touch" them therein. For example; It is actionable without proof of special dam- ages to say of a clerk or servant, " He cozened his master." "- Of a tradesman, " He is not able to pay his debts." ' Of a farmer, "The sheriff will sell him out one of these days, and claims against him not sued will be lost." * Of a distiller whose custom was to buy grain on credit, " He must fail — his time is come." ^ Of a carpenter, " He is broken up and run away, and will never return." « Of a tailor, " I heard he was run away." ^ Of a merchant, " I have heard of no failures, but understand there is trouble with S." ' "He will lose his debt; M. is unable to pay it." " Of one engaged in buying and sell- ing wooden ware, " 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." '» Of a merchant, " 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 the store will be closed soon." " 1 Johnson V. Shields, 1 Dutcher (N. ' Davis v. Lewis, 7 Term R., 17. J )_ llg_ 8 Sewall V. Catlin, 7 Wend. (N. Y.), 2 Seamen v. Bigg, Cro. Car., 480. 291. »Dob8on V. Thornstone, 3 Mod., » Mott v. Cometock, 7 Cow. (N. Y.), 112. 654. 1 Phillips V. Hoeffer, 1 Penn, St. i" Carpenter v. Dennis, 8 Sandf., Rep 62. 3<^^- sOstrom v. Calkins, 5 Wend. (N. " Beard sly v, Tappan, 1 Blatch. C. Y.), 563. C- ^■' ^^' 8 Chapman v. Lamphire, 3 Mod., 155. 13 194 DEFAMATION AFFECTING PERSONS IN OFFICES, ETC. § 36. Illustrations — Digest of American Cases. — 1. It is actionable ivithout proof of special damages to say of a merchant, " There is a time when men will fail who must fail, and O.'s time has come." Ostrom v. Calkins, 5 Wend. (N. Y.), 362. And where, in answer to the inquiry, "Were there any failures yesterday?" it was said, "Not that I know of, but I understand there is trouble with the MessM. 8." Sewall V. Catlin, 3 Wend. (N. Y.), 291. 2. To charge that a merchant is unable to pay a debt. Mott v. Comstock, 7 Cow. (N. Y.), 654. Or to say, "He will be a bankrupt in six months." Else V. Ferris, Anth. N. P., 33. 3. To say of a farmer, falsely and maliciously, " The sheriff will sell him out one of these days, and claims against him not sued will be lost." Phillips V. Hoefifer, 3 Penn. St., 62. To write of a merchant, "Gents: M. has de- layed answering your letter for the purpose of collecting the amount of T. B, N.'s [the plaintiff] indebtedness and to ascertain the amount of his assets. We are now able to report, not fully, but nearly so, regarding his financial ability. His assets, consistiiig of merchandise, show-oases, tools, book ac- counts, as per his own guess, is about $1,800. His indebtedness is, as far as I know, about the same amount. He may owe more ; I speak of what I know — $1,800 to merchants like you and a $500 demand note. If any one of his creditors should crowd him the demand would be pushed. M. woiild advise a caution on your part in selling, and a prompt payment of matured indebtedness," was held libelous per se. Newell v. How, 31 Minn., 235. 4. A. and B. had been carrying on the commission business under the firm name of B. & C. A., a minor, bought out B.'s interest in the property and good-will of the concern. B. prepared and sent to the customers of A. a postal card reading as follows: "Dear Sir: I drop you a line to let you know A., my successor in business, is not legally responsible for his con- tracts, as he is yet a minor, under twenty-one years of age. A word to the wise is sufficient. Store No. 118, South Water street, I shall occupy and do business. Would be pleased to hear from you. B." Held, that the words of this publication are capable and reasonably susceptible of a defamatory meaning as respects A. in connection with his business. Hays v. Mather, 15 Brad. (III.), 30. 5. Any words spoken in relation to his trade or profession which tend to impair his credit or charge him with fraud or indirect dealing in his line of business are actionable. Davis v. Davis, 1 N. & M. (S. C.), 390; Ostrom v. Calkins, 5 Wend. (N. Y), 263. § 37. Digest of English Cases.— 1. It is actionable without proof of special damage to impeach the credit of any merchant or tradesman by imputing to him bankruptcy or insolvency, either past, present or future. Johnson v. Lemmon, 3 EoUe's Rep., 144: Thompson v. Twenge, 2 RoUe's Rep., 433; Vivian v. Willet, Sir Thomas Raymond, 207; 3 Salk., 326; Stanton v. Smith, 3 Ld. Raymond, 1480; 3 Str., 763 ; Whittington v. Gladwin, 5 B. & C, 180; 3 C. & F., 146; Robinson v. Marchant, 7 Q. B., 918; 15 L. J., Q. B., 134; 10 Jur., 156; Har- rison V. Bevington, 8 C. & P., 708; Gostling v. Brooks, 3 F. & F., 76; Brown V. Smith, 13 C. B., 596; 23 L. J., C. P., 151 ; 17 Jur., 807; 1 C. L. R., 4. 2. To say of a brewer that he has been arrested for debt. And this al- IMPUTING DISHONESTY TO MBBCIIANTS, ETC. 195 though no express reference to his trade was made at time of publication, for such words must necessarily affect his credit therein. Jones v. Littler, 7M. & W., 423; 10 L. J., Ex., 171. 3. To assert that the plaintiff had once been bankrupt in another place when carrying on another trade ; for that may still affect him here in his present trade. Leycroft v. Dunker, Cro. Car., 817; Hall v. Smith, 1 M. & S., 288; Figgins v. Cogswell, 3 M. & S., 369. 4. To say of any trader, "He is not able to pay his debts." Drake v. Hill, Sir T. Raym., 184; 2 Keble, 549; 1 Lev., 376; Sid., 434; Hooker v. Tucker, Holt, 39; Carth., 830; Morris v. Langdale, 3 Bos. & Pul., 384; Orp- wood V. Barkes (vel Parkes), 4 Bing., 261 ; 12 Moore, 492. 5. To say of a farmer, " He cannot pay his laborers." Barnes v. Hollo- way, 8 T. E., 150. 6. To impute insolvency to an innkeeper, even though at that date inn- keepers were not subject to the bankruptcy laws. "Whittington v. Glad- win, 5 B. & C, 180: 3 C. & P., 146; Southam v. Allen, Sir T. Raym., 331. 7. To say to a tailor, " I heard you were run away," sc. from your cred- itors. Davis V. Lewis, 7 T. R., 17. And see Dobson v. Thornistone, 3 Mod., 112; Chapman V. Lamphire, 3 Mod., 155; Arne v. Johnson, 10 Mod., Ill; Harrison v. Thornborough, 10 Mod., 196; Gilb. Cas., 114. 8. But it is not actionable without proof of special damages to say, merely, "A. owes me money," if no words be added imputing that A. is unable to pay the debt. Per Bramwell, B., 4 F. & R, 331, 333. § 38. Imputations upon the Honesty and Integrity of Merchants, Traders, etc. — Defamatory words which impute to a person dishonesty and fraud in the conduct of his trade, such as knowingly selling inferior articles as superior, or wil- fully adulterating his wares, will be actionable without proof of special damages; though all complaints- made in good faith by a customer of the goods supplied to him are of course privileged.' If the words merely impugn the goods the plaint- iff sells, they are not actionable unless they fall within the rules relating to slander of title ; for they are but an attack on a thing, not a person.^ B.ut often an attack on a com- modity may be also an indirect attack upon its vendor; as if fraud or dishonesty be imputed to him in offering it for sale.' I 1 Crisp V. Gill, 39 L. T. (O. S.), 83; sjenner v. A'Becket, L. R., 7 Oddy V. Lord Geo. Paulet, 4 F. & F., Q. B., 11; 41 L. J., Q. B., 14; 30 1009. W. R, 181; 35 L. T,, 464; Burnet v. 2Fenn v. Dixe (1638), 1 Roll. Abr., Wells (1700), 13 Mod., 420; Clark v. 68; Evans v. Harlow, 5 Q. B., 634; Freeman, 11 Beav., 113; 17 L. J,, Ch., 18 L. J., Q. B., 120; Harman v. 143; 13 Jur., 149. Delaney, 3 Str., 898; Fitz., 131; 1 Barnard, 389, 438. 196 DEFAMATION AFFECTING PEES0N8 IN OFFICES, ETC. § 39. Illustrations — Digest of American Cases.— 1. It IB actionable without proof of special damage to say of a merchant, " You keep false books, and I can prove it." Backus v. Eichardson, .■> Johns. (N. Y.), 476. 2. To say of a blacksmith, in relation to his business and trade, ' ' He keeps false boobs, and I can prove it," is actionable. Burtch v. Nickerson, 17 Johns.; 217. 3. Wilson was a clerk and assistant weighmaster in the employ of one Arthur Rhett. Cottman, the defendant, who was a customer of Rhett, falsely and maliciously said of Wilson: " He has caused the downfall and ruin of my clerk." "I do not want him to have anything to do with my business " — meaning he should not weigh any goods consigned to him — in consequence of which Wilson was discharged from his employment. In an action brought by Wilson, it was held that the words imputed miscon- duct which would unfit him to discharge faithfully and correctly all the duties pertaining to his position and were actionable. Wilson v. Cottman, 65 Md., 190. 4. In a New York case (1809) the declaration, after the usual averments that the plaintiff was a merchant of good credit, etc. , charged the defend- ant with speaking the words of the plaintiff as a merchant, "You keep false books, and I can prove it." The chancellor, in delivering the opinion of the court, said: "The words are alleged to hav« been spoken of the plaintiff in the court below, as a merchant. The occasion of speaking them is not otherwise adverted to than that the defendant, speaking of the plaint- iff, uttered them. They are not introduced as relating to mutual claims or to repel a demand made by the defendant in the court below. It is a sim- ple declaration that the plaintiff kept false books, and that he could prove it — not as relating to a single point. The allegation applied to the books of the plaintiff generally, and alleged the falsity of those books. These words spoken of a merchant are undoubtedly calculated to impair a confidence in his integrity and injure his credit, which chiefly arises from his being reputed a fair dealer. Wliatever may be the ancient doctrine with respect to the construction of words wliich may sustain an action of slaader, it is now well established that they are to be taken in the common and ordinary sense; and if the words are so construed here I think they conveyed the imputation of a deliberate falsity, and not an accidental one arising from mistake." Backus v. Richardson, 5 Johns. (N. Y.), 477. 5. Any woi'ds spoken of a pei-son in relation to his trade or profession which charge him with fraud or indecent dealing in his line of business are actionable. Ostrom v. Calkins, 5 Wend. (N. Y.\ 263 ; Bavis v. Davis, 1 N. & M. (S. C), 2a0; Chipman v. Cook, 3 Tyler (Vt.), 45; McMillan v. Birch, 1 Binn. (Penn.), 178. G. But it is not actionable without proof of special damage to charge a person with keeping false books, unless the keeping of such books is inci- dent to the party's business which necessarily leads to credit. Eathbun v. Emigh, 6 Wend. (N. Y.), 407. So to say of a sawyer, " He keeps false books," is not actionable, because the business of a sawyer did not require the giv- ing of a credit and keeping of books; for it was admitted that in such cases the words would be actionable. Rathbun v. Emigh, Wend., 407. ILL3STEATI0NS DIGEST OF EKGLISH CASES. 197 § 40. Digest of English Cases.— 1. It is actionable without proof of special damage to say of a trader, " He is a cheating knave, and keeps a false debt^book." Crawfoot v. Dale, 1 Teat., 203; 3 Salk., 327, oFerruling Todd v. Hastings, 2 Saund., 307. Or that he uses false weights or measures. GriiBths v. Lewis, 7 Q. B., 61; 14 L. J., Q. B., 197: 9 Jur., 370; 8 Q. B., 841; 15 L. J., Q. B., 219; 10 Jur.,711; Bray v. Ham, 1 Brownlow & Golds., 4; Stober v. Green, id., 5; Prior v. Wilson, 1 C. B. (N. S.), 95. 2. To say of an auctioneer or appraiser who had valued goods for the de- fendant, ""He is a damned rascal; he has cheated me out of £100 on the valuation." Bryant v. Loxton, 11 Moore, 344; Ramsdale v. Greenacre, 1 F. & F., 61. 3. To say of a butcher that he changed the lamb bought for him for a coarse piece of mutton. Crisp v. Gill, 29 L. T. (O. S.), 82; Eice v. Pidgeon, Comb., 161. 4. To say to a corn factor, "You are a rogue and a swindling rascal: you delivered me one hundred bushels of oats worse by 6s. a bushel than I bar- gained for." Thomas v. Jackson, 3 Bing., 104; 10 Moore, 425. 5. To say of a tradesman that he adulterates the goods he sells. Jesson V. Hays (1636), RolL Abr., 63. 6. To say of a contractor, " He used the old materials," when his contract was for new, is actionable with proper innuendoes. Baboneau v. Farrell, 15 C. B., 360; 24 L. J., C. P., 9; 1 Jur. (N. S.), 114; 3 C. L. E., 142; Sir E. Greenfield's Case, Mar., 82; 1 Viner's Abr., 465. See Smith v. Matthews, 1 Moo. & Rob., 151. 7. To say of a clerk, "He cozened his master," is actionable, though the defendant did not expressly state that the cozening was done in the execu- tion of the clerk's official duties ; that will be intended. Eeignald's Case (1640), Cro. Car., 563; Eeeve v. Holgate (1672), 2 Lev., 63. 8. But it is not actionable without proof of special damages to say to a pork butcher, "Who stole Prazer's pigs? You did, you bloody thief, and I can prove it ; you poisoned them with mustard and brimstone " (the jury having found that the words were not intended to impute felony) ; for there ■was nothing to show that they were spoken of the plaintiff in relation to his trade. Sibley v. Tomlins, 4 Tyrwhitt, 90. So to say of a grocer, " His shop is in the market," is not actionable in the primary sense of the words, at all events. Euel v. Tatnell, 29 W. E., 172; 43 L. T., 507. 9. To call a tradesman "a rogue," or "a cheat," or "a cozener" is not actionable, unless it cau be shown that the words refer to his trade. To impute distinctly that he cheats or cozens in his trade is actionable. Johns v. Gittings, Cro. Eliz., 339; Cotes v. Ketle, Cro. Jac, 204; Terry v. Hooper, 1 Lev., 115; Savage v. Eobery, 5 Mod., 398; 2 Salk., 694: Surman v. Shel- leto, 8 Burr., 1688; Bromefleld v. Snoke^ 13 Mod., 307; Savile v. Jardine, 2 H. Bl., 531 ; Lancaster v. French, 3 Stra., 797 ; Davis v. Miller et ux., 2 Stra., 1169; Fellows'v. Hunter, 20 Up. Can., Q. B., 382; Brady v. Youlden, Mel- bourne Argus R. CHAPTEE IX. DEFAMATORY WORDS IMPUTING DISEASE, ETC. § 1. The Law Stated. 3. The Law Stated by Metcalf , J. 3. American Illustrations. 4. English Illustrations. 5. The Rule of Construction. Defamatory words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society, are actionable in themselves without proof of special dam- ages.' § 1. The Law Stated. — Bacon, in his abridgment of the English law, says upon this subject: "Since man is a being formed for society, and standing in almost constant need of the advice, comfort and assistance of his fellow-creatures, it is highly reasonable that any words which import the charge of a contagious distemper should be in themselves actionable, be- cause all prudent persons will avoid the company of one hav- ing such a distemper."^ This is doubtless the rule which reason would prescribe fop such cases ; but it does not appear to be warranted by the decisions. The books point out only two diseases, namely, leprosy and l%oes venerea,^ the imputation of which is absolutely slanderous. Just what diseases would be included in the rule at the present day is not quite certain, but it is probable it would include only those which are con- tagious or infectious, and which are also usually brought upon one by disreputable practices, limiting the list to venereal com- plaints. Actions for words of this description seem, in the absence of special damage, to have been confined >to charges of leprosy and lues venerea. To say * a man has the leprosy, or to call I Kanoher v. Blinn, 29 Ohio St., 53 ; 29 Bacon's Abridgment, 45. Pollard V. Lyon, 91 U. S., 225; Wa- 3 5 Rep., 135; 2 Wils., 404. moc V. Circle, 39 Grat. (Va.), 197; ^Carslake v. Mapledoram, 3 T. R., Chaplin v. Lee, 18 Neb., 440. 473; Cr. J., 144. THE LAW STATED. 199 him a leprous knave, is actionable — the term leper being in it- self a clear and unequivocal designation of the speaker's mean- ing. So great, formerly, was the dread of leprous contagion that an especial writ was provided for the removal of the in- fected object to some secluded place where he might no longer be a terror to societj'. From an English case it appears that to say another has the itch is not actionable, though such an accusation would be actionable if written.' Charging a person with having had such a contagious dis- order, however, is not actionable in itself, because it is no rea- son why the company of a person so charged should be avoided. The ground of the action b6ing the presumption of the ex- clusion of the party from society, no action will lie for such an imputation in the past tense ; for such an assertion does not represent the party at the time of speaking as unfit for society, and therefore the reason for the action is wanting.'^ § 2. The law Stated by Metcalf, J.^ The charge against a person of having the venereal disease is held to be actionable not because the charge imputes any legal or moral offense, but solely because it tends to exclude him from society as a person having a disgusting and contagious disease, and with whom it is unsafe to associate.'' § 3. Illustrations — Digest of American Cases.— It is actionable without proof of special damages to say of a married woman, " She has the venereal disease." " She has the clap." "She has the pox." Williams v. Holdridge, 23 Barb. (N. Y.). 396. Or to say of a woman, " I will tell you what the matter with her is — she has had the pox.'' Irons V. Fuld, 9E. I., 316. " Golderman has the venereal disease. It is an old affair, and being married has brought it on again. He is the guilty one 5 he has given it to his wife." Golderman v. Stearns et ux., 7 Gray (73 Mass.\ 181. But where the words spoken were, "He was about 4ead with the bad disorder," they were held not actionable, as they did not charge the plaintiff with having the "bad disorder " at the time of speaking, but that " he was," in the past tense, about dead with it. Bruce v. Soule, 69 Me.. 563. A complaint for slander charged the defendant with stating that the plaintiff "has" a loathsome disease, and "that is what is the matter with him, and now he is trying to get a pension for some other disease ; '' again, that he has got it, " and has had it ever since he came out of the army." 1 Villars v. Monsley, 3 Wils. , 403. ' Golderman v. Stearns, 7 Gray (73* 2Carslake v. Mapledorara, 3 T. R., Mass.), 181; 'March on Slander, Ed. 473; Pike v. Van Warner, 5 How. Pr. 1674, 77. (N. Y.), 171; Bruce v. Soule, 69 Me., 563. 200 IMPUTATION OF DISEASE. The complaint added "that the words charged, and were meant to charge, the plaintiff with having contracted and being afflicted with a certain loath- some and filthy disease," etc. Held, that the complaint sufficiently charged that the defendant published that the plaintiff had contracted a disorder, from the effects of which he was still suffering. Monks v. Monks (Ind., 1889), 20 N. E. Kep., 744. § 4. Digest of English Cases.— It is actionable without proof of special damages to say of a man : " Thou are a pocky knave. Get thee home to thy pocky wife ; her nose is eaten with the pock." Brook v. Wise (1601), Cro. Eliz., 878. Or to say of a woman : " You are a damned bitch, whore, and a pocky whore, and if you Jiave not the itch'you have the pox." Grimes v. Lovel, 13 Mod., 343. And an action lies for calling a woman " a pocky whore." Whitfield v. Powel, 13 Mod., 248. To say of a woman: "Thou are a pocky whore, and carriest the pox along with you.'' Clifton v. Wells, 13 Mod., 634. To say of a man, "Thou art a leprous knave " (Taylor v. Perkins, Cro. Jac, 144), or, " He is a leper." 9 Bacon's Abridgment, 45. § 5. The Rule of Construction. — Without citing any more of these disgusting illustrations it will undoubtedly be safe and proper to adopt as a guide in all cases the following rule : "With respect to the terms in which the imputation is conveyed, viz., they may either expressly and by their own power impute the disease, or by the aid of collateral circumstances may ren- der the implication unavoidable. The same rule of construction will apply to this as to other slanders. Whenever it can be collected from the circumstances that the speaker intended the hearers to understand that the person spoken of was, at the time of speaking, afflicted with either of the disorders above mentioned, an action may be maintained. And the meaning may be evidenced either by reference to the mode in which the disease was communicated, the symptoms with which it is attended, its effects upon the person or constitution, the means ^ of cure, the necessity of avoiding ^ the person infected, or, in short, by any other allusion capable of conveying the offensive imputation.' 1 Miller's Case, Cro. Jac, 430; SFolkard's Starkie, 109; 9 Bac. Daviesv. Taylor, Cro. Eliz., 648. Abr., 45. 2 Miller's Case, Cro. Jac, 430, CHAPTEE X. SCANDALUM MAGNATUM. § 1. The Engfish Law. 3. Illustrations — Digest of English Cases and Ancient Statutes. § 1. The English Law. — Words spoken iii derogation of a peer, a judge or other great officer of the reahn are usually called scandalum magiiatum; and though they be such as would not be actionable when spoken of a common person^ yet when applied to persons of high rank and dignity they constitute a more heinous injury, which is redressed by an ac- tion on the case founded on many ancient statutes; as well on behalf .of the crown to inflict the punishment of imprisonment on the slanderer as on behalf of the party to recover damages sustained.^ In this country no distinction as to persons is recognized, and in practice a person holding a high office is regarded as a target at whom any person may let fly his poisonous words. High official position, instead of affording immunity from slan- derous and libelous charges, seems rather to be regarded as making his character free plunder for any one who desires to create a sensation by attacking it.^ § 2. Illustrations — Digest of English Cases and Ancient Statutes. — 1. Words complained of: " I value my Lord Marquess of Dorchester no more than I value the dog at my foot." Held, that the action was well laid in scandalum magnatwm, the plaintiff being a marquess. But a private person would have had no action for such words without proof of special damage, as they merely show the esteem in which the defendant held him. Proby V. Marquess of Dorchester, 1 Levinz, 148 ; Lord Falkland v. Phipps, 3 Comyns, 439; 1 Vin. Abr., 549. 2. An ancient statute: " Forasmuch as there have been oftentimes found iWestm. 1 (3d ed.), 1, ch. 34; 3 vol. 3, part 3; 3 Black. Com., 133; Rich. II., ch. 5; 12 Rich. II., ch. 11; Folkard's Starkie, 143. 3 Mod., 153; Harrington on the Penal ^Wood's edition of Folkard's Statutes, 301, 314; 3 Reeve's Hist.,. Starkie, 318, n. 311; and 1 Pari. Hist, 360; Rymer, 202 SCANDALUM MAGNATUM. in the country devisors of tales, ■whereby discord or occasion of discord hath many times arisen between the king and his people or great men of his realm, for the damage that hath and may thereof ensue, it is commanded that from henceforth none be so hardy as to tell or publish any false news or tales whereby discord or occasion of discord or slander may grow be- tween the king and his people or the great men of the realm ; and he that doth so shall be taken and kept in prison until he hath brought him into the court which was the first author of the tale." 3 Ed. I., Stat. Westminster 1, ch. 34. 3. Another: " Item of devisors of false news, and of horrible and false lyes of prelates, dukes, earls, barons and other nobles and great men of the realm, and also of the chancellor, treasurer, clerk of the privy seal, steward of the king's house, justices of the one bench or the other, and of other great officers of the realm, of things which by the said prelates, lords, nobles and officers aforesaid were never spoken, done or thought in great slander of the said prelates, lords, nobles and officers, whereby debates and discords might ^ise betwixt the said lords, or between the lords and the commons, which God forbid, and whereof great peril and mischief might come to all the realm, and quick subversion and destruction of the said realm if due remedy be not provided : It is striaitly defended upon grievous pain for to eschew the said damages and perils, that from henceforth none be so hardy to devise, speak, or to tell any false news, lyes or such other false things, of prelates, lords, and of other aforesaid, whereof discord or any slander might rise within the same realm ; and he that doth the same shall incur and have the pain another time ordained thereof by the statute of Westminster the First, which will that he be taken and imprisoned till he have found him of whom the word was moved." 2 Rich. II., st. I, ch. 5 ; Odgers on L. & S. , 134. CHAPTER XI. SLANDER OF PROPERTY. § 1. Slander of Property. 2. Nature of the Action. 3. Requisites of the Action. (1) The "Words Must be False. (3) The Words Must be Maliciously Published. (3) A Pecuniary Loss Must Occur. 4. The Plaintiff's Interest or Title. 5. The Assertion of a Claim of Title. 6. Statements of Attorneys and Agents. 7. The Subject Divided. 8. Slander of the Title of Property — Illustrations — Digest of American Cases — Digest of English Cases. 9. Slander of the Quality of Property — Illustrations — Digest of Amer- ican Cases — Digest of English Cases. 10. Slander of Title of Letters Patent — Copyrights and Trade-marks — Illustrations — Digest of American Cases — Digest of English Cases. § 1. Slander of Property. — Words are not usually termed defamatory unless thej'^ affect some person either in his indi- vidual capacit}' or in his ofBce, profession or trade. But a defamatory attack may be made upon things as well as upon persons ; and a defamatory attack upon a thing may be an in- direct attack upon an individual, and therefore be defamatory of him without proof of special damage. So where one per- son said of another, " He is a cheat; he has nothing but rotten goods in his store," it was held slander on the party in his trade or calling;^ for the words clearly imputed that he was aware of the bad condition of his goods and yet continued to offer them for sale to the public. To charge a tradesman with wilfully adulterating the goods he sells is an attack upon him as well as upon his goods, and actionable without proof of special damage.^ But aside from these cases there is a branch of the law of defamation generally known by the somewhat indefinite term " slander of title." It permits an action to be brought against any one who falsely and maliciously defames iBamettv. Wells, 13 Mod., 420. Ingram v, Lawson, 6 Bing. N. C, 2 Jesson v. Hayes, Roll. Abr., 63; 218. 204 SLANDER OF PKOPEKTY. the title of property, either real or personal, of another, and thereby causes him some special pecuniary damage or loss. As in all other actions dependent upon special damage there must be injury and damage; the injurious words falsely and maliciously spoken, and the damage, the consequent pecuniary loss to the part}'^ whose property is defamed. There can be no action except for the injury, the slanderous words, and no recovery except for special damages.' § 2. Nature of the Action. — It makes no difference whether the matter complained of has been published orally or by writing, printing or otherwise.^ The gist of the action is the special damage sustained. There are some cases holding that it is not an action for slander, but in reality an action on the ease for maliciously acting in such a way as to cause the plaintiff some pecuniary loss.' But it seems to be an attempt to set up a far-fetched distinction without any material difference. It is better reason to call it an action for slander and for special damage resulting therefrom. We have seen that there can be no action except for the slander, and no recovery except for the damage. The idea that it is not an action of slander seems clearly wrong; for the very foundation of the action is words falsely and maliciously published, and the only ground of re- covery is that the publication results in pecuniary loss or dam- age to the owner of the property. The words then belong to that class of defamatory words actionable with proof of special damage* § 3. Eequisites of the Action. — Three things are necessary to maintain an action for slander of property or of title : (1) The words must be false. 11 Roll. Abr., 58; Tasburg v. Day, lars v. Lyon, 91 U. S., 335; Odgers Cro. Jac, 484; Evans v. Harlow, 5 on L. & S., Ib8. Q. B., 634; Tobias v. Harland, 4 2 Malady v. Soper, 3 Bing. N. C, Wend. (N. Y.), 537 ; Linden v. Graham, 371 ; 3 Seott, 371. 1 Duer (N. Y.), 670; Kendal v. Stone, 3 Odgers on L. & S., 138. 5 N. Y., 15; Hartley v. Herring, 8 < Wood's Folkard on Slander, Term R., 130; Hallock v. Miller, 3 208, n. ; Hargreave v. Le Breton, 4 Barb. (N.Y.), 630 ;Ashfordv.Choate, Burr., 3433 ; Kendall v. Stone, 5 N. 20 U. C, C. P., 471; Stiebeling v. Y., 14; Smith v. Spooner, 3 Taunton, Lookhaus, 31 Hun (N. Y.), 457; 246; Sike v. McKinstry, 3 Abb. (N. Cramer v. CuUinane, 3 MoArthur, Y.)App., 63;4 Keyes, 397; Wakeley 197; Bergman v. Jones, 94 N. Y., 51; v. Bostwiok, 49 Mich., 374; 13 N. W. Russell V. Elmore, 48 N.Y., 563; Pol- Rep., 780. SLAXUEE OV PEOPEETY. 205 (2) The\' must be maliciously published. (3) They must result in a pecuniary loss or injury to the plaintiff. The words must be spoken pending some treaty or publ ic auction for the sale or purchase of the property, or the action will not lie, and it must be such a slander as goes to defeat the plaintiff's title. And unless the plaintiff shows falsehood and malice in the defendant, and an injury to himself, he estab- lishes no case to go to the jury.^ (1) TAe words must he false, not because it is an additional requisite of malice and damage, but because it is comprised as one of the elements of the damages sustained; ^ and the bur- den of proving the falsity is on the plaintiff.^ If the state- ments complained of are true, and if there really is the infirm- ity in the title as alleged, no action will lie, however malicious the intention to defame may have been.* (2) The words^must he malieiously published. It is essential to the action that the words complained of should have been maliciously uttered — not malicious in the worst sense, but at ' least uttered with the intent of injuring the plaintiff. The burden of proving malice, either expressed or implied, is upon the plaintiff, in order to sustain his case. It is sufficient if he establishes the publication of the defamatory words and their falsity, and that there was no ground for the defendant's claim; or any facts that warrant an inference that the words were not uttered in good faith, to assert or uphold a real claim of title in himself, so that malice can fairly be implied.' (3) A pecuniary loss must result. Where the slander tends to lEoss V. Pines, Wythe (Va.), 71 ; Slander, 131 ; Pater v. Baker, 3 C. B., Linden v. Graham, 1 Duer (N. Y.), 868 ; Steward v. Young, 39 L. J., L'. 670; Madison v. Baptist Church, 26 P., 85; L. E., 5 C. P., 132. How. (N. Y.), 72; Tasburgh v. Day, SKendallv. Stone, 5N. Y., 14;Sike Cro. Jac.,484; Hargreavev. Le Bre- v. McKinstry, 3 Abb. (N. Y.) App., ton, 4 Burr., 3423; Pater v. Baker, 3 62; 4 Keyes, 397; Bailey v. Dean, 5 C. B.,869; Stewarrl v. Young, L. E., Barb, (N. Y.), 297; Hill v. Ward, 13 5 C. P., 133; McDaniel v. Baca, 3 Ala., 310; Stock v. Chetwood, 5 Kan- Col., 836; Hill v. Ward, 13 Ala., 310. sas, 141 ; Smith v. Spooner, 3 Taunt., 2 Folkard on Slander, 131. 246 ; Hargreave t. Le Breton, 4 Burr,, a Burnett v. Tak, 45 L. T., 743. 2433 ; Folkard on Slander, 331 ; Walk- 694. McKinstry, 3 Abb. (N. Y.) App., 68. 8 Pennyman v. Rabanks, Cro. Eliz., 6 Burnett v. Tak, 45 L, T., 748. SLANDER OF PEOPEETT. 209 officious interference will be deemed malicious, and he will be liable if damage follow. It is enough for the plaintiff to es- tablish the speaking or writing of the words, their falsity, and that there was no ground for the defendant's claim.' And special damage must be proved and shown to have arisen from the defendant's words. And for this it is generally nec- essary for the plaintiff to prove that he was in the act of sell- ing his property either by public auction or private treaty, and that the defendant by his words prevented an intending purchaser from binding or completing.^ So proof that plaint- iff wished to let his lands and that the defendant prevented an intending tenant from taking a lease will be sufficient. But a mere apprehension that plaintiff's title might be drawn in question, or that the neighbors placed a lower value on plaintiff's lands in their own minds in consequence, the same not being offered for sale, will not be sufficient evidence of damage. " This action lieth not but by reason of the preju- dice in the sale." ' The special damage must always be such as naturally or reasonably arises from the use of the words.* Illustrations — Digest of American Cases. 1. An action for slander of title was brought against the sheriff of Gene- see county, Michigan, and one Byron Bostwick. Bostwick was the plaint- iff in an execution against one John Walkley, and the action was brought for wrongfully levying the execution upon lands owned by the plaintiff (who, it seems, was the wife of John Walkley), whereby a trade which she had negotiated was broken up to her loss. The plaintiff did not aver that the levy on her property was malicious, or that it was made with any pur- pose to wrong her, but she relied for recovery upon the bare facts that the levy was made upon her lands, and that a purchaser to whom she had bar- gained it refused in consequence to complete the bargain. In delivering the opinion of the supreme court of Michigan on an appeal, Cooley, J., said : " As the levy could create no lien on her land or in any manner charge, endanger or affect her title, it will be questioned whether the al- leged damage is the natural and proximate I'esult of the act complained of. At most the act of the defendants amounted to no more than a formal assertion that the ownership of the plaintiff's land was in John Walkley, and that they proposed to maintain that assertion in legal proceedings. But ' Bailey v. Dean, 5 Barb. (N. Y.), ' Fenner, J., in Bold v. Bacon, Cro. 297. Eliz., 346. -Tasburgh v. Day, Cro. Jac, 484: ^Haddon v. Lott, 15 C. B., 411; 34 Lowe v. Harewood, Sir W. Jones, L. J., C. P., 49. 196; Cro. Car., 140; Odgers on L. & S., 139. 14 210 SLANDER OF PEOPERTY. this assertion would not have justified a purchaser in throwing up his bar- gain. If he had previously entered into a valid contract, the levy could not have excused his failure to perform it ; and if he had only agreed by parol to take the land, the breaking oflE of the negotiation for a reason that would not have excused the performance of a, valid contract can only be attributed to excess of caution, and cannot certainly be referred to an act which in law was wholly inadequate to have caused it. A purchaser who is not yet bound-may naake such an attack upon the title an excuse for breaking off negotiations, and so a master may make the slander of his servant an excuse for discharging him from employment ; but if he should do so the discharge could not be deemed a natural consequence of the slander. (Citing Wiars v. Wilcocks, 8 Ease, 1; Ward v. Weeks, 7 Bing., 211; Netern v. Hurley, 98 Mass., 311.) The cases are analogous. Nor is this action grounded on the principle that supports an action for slander of title, for that is grounded on malice. (Citing Malachy v. Soper, 3 Bing. N. C, 371; Waldeu v. Peters, 3 Rob. (La.), 331.) Here, as has been said, no malice is averred, and it is presumable that the defendants in good faith supposed they might contest and disprove the plaintiffs title. The case, therefore, is without precedent so far as we know, and no authority is cited for it. . . . The plaintiff finds her injury in the bare fact of the levy ; in other words, in the bare fact that these two defendants without malice have asserted that another party owns the land. But in law this is not an actionable wrong." (Citing Howeth v. Mills, 19 Tex., 265.) The judgment is reversed. Walkley v. Bostwick, 49 Mich., 374; 13 N. W. Rep., 780. 2. Mrs. Lewis Riner and Mrs. Isaac Van Tuyle were sisters; their father, Asher Davis, who was eighty-one years old in August, 1878, had in Feb- ruary, 1873, conveyed the land, the title of which is claimed to have been slandered, to Mrs. Riner and her husband, and in consideration for the same they had entered into a contract to support Mr. Davis and his wife, who were both old and feeble, during their lives, and to bury them when dead. Riner and wife desired to sell the land and go to Kansas. Mr. Davis, his wife being then dead, consented. He said he was satisfied he " was just as near heaven in Kansas as he was in Illinois. It made no difference where his old body lay after he was dead." They entered into a negotiation for the sale of the land with one Peter Stoley. He made them a verbal offer to pay them $3,000 cash on September 1, 1877. On September 1st a deed was tendered to Stoley, but he declined to take it and pay the money, be- cause, as he said, Van Tuyle had told him in August that his wife was a legal heir to that piece of land, and that one Mrs. BeU, of Ohio, was also an heir, and if he bought it he would buy a lawsuit;. that Davis had not been capable of doing business for a good many years; he supposed Riner had a deed, but if he had he had got it in some way ; that he was fearful if Riner sold the land the old man would be thrown on public charity, and might come back on him for support. Riner and his wife brought suit against Van Tuyle for slander of his title. On the part of the defense there was some evidence tending to show that the motives for speaking the words were not malicious, but honest without malice, and that the damage, if any, by reason of not completing the sale to Stoley was trifling. SLANDER OF PEOPEKTT. 211 The jury, however, returned the following verdict: "We, the jury, find the issue for the plaintififs, and assess the damages on the land at §1,000 and exemplary damages at |500 ; total, $1,600. The court considering the verdict informal caused it to be put in the following form: " We, the jury, find the issue in favor of plaintiffs, and assess the damages at |1,500." Upon an appeal Leland, J. , said : " As to whether the defendant honestly found that if the land was once converted into money the latter ' might take unto itself wings and fly away,' and the old father be made to suffer because of the inability of Riner and wife to take care of him, or whether this interference with the sale was from selfish, dishonest and malicious motives, was a question for the jury to determine. ... If this verdict had been for reasonable compensatory damages only, we might say that verdicts should not be interfered with except in clear cases of an indication that there was passion, prejudice or other improper influence operating on the jury. While we are disposed to concede that in a case of slander of the title to real estate there may be evidence of that wanton, wilful and ma- licious attempt to injure the owner of the land which would justify puni- tive or exemplary damages, we do not think this case one for anything more than just and reasonable compensation. Reversed." Van Tuyle v. Einer, 3 Brad. (111.), 556. 3. False, defamatory and malicious statements made with intent to injure the owner of land and his title thereto constitute slander of title. Bodge V. Colby, 108 N. Y., 445: 37 Hun (N. Y.), 515. 4. To support an action for slander of title special damages must be al- leged circumstantially. 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 had some ground, he is not responsible. Bailey v. Dean, 5 Barb., 297. 5. Three things are necessary to maintain an action for slander of title : the words must be false ; work an injury to the plaintiff in respect to his title ; and be malicious, not in the worst sense, but with intent to injure the plaintiff. The truth of the words may be proven under the general issue. The existence of probable cause is no answer to the action ; nor does the want of it necessarily prove malice. Proof of other conversations of the defendant, respecting the same title and subject, is admissible to prove malice, though they were after suit brought. The jury may give exemplary damages. Kendall v. Stone, 2 Sandf. (N. Y.), 269. 6. To maintain the action the words must be maliciously uttered as well as false, and be followed, as a natural and legal consequence, by a pecuniary damage to the plaintiff, which must be specially alleged in the declaration and substantially proven on the trial. Kendall v. Stone, 1 Seld., 14; 5 N. Y., 14. Where the land had been sold, and, in consequence of the slan- der, the vendee applied to the vendor to be released from the contract, and the vendor thereupon refunded the paid purchase money and rescinded the contract, held, that here was no damage within the rule. Id. ; rev'g 2 Sand., 269. 7. The complaint in an action for slander of title must show special dam-' age, and to show it the person who refused to purchase or to loan in con- 212 SLANDER OF PEOPEETV. sequence of the slander must be named or the complaint is bad on demurrer. Linden v. Graham, 1 Duer, 6,70. 8. An action for slander to title of lands lies only when the words are false and uttered maliciously, and are also followed by direct pecuniary damage. Sike v. McKinstry, 41 Barb. (N. Y.), 186. There must be a want of probable cause. The defendant is not responsible for words or acts done in pursuance of a claim of title. Bailey v. Dean, 5 Barb. (N. Y.), 397. 9. To maintain an action for slander of title, it is necessary for the plaint- iff to have either a title or an interest in the property. Edwards v. Burris, 60 Cal., 157, 10. Where D. published, in the notice of defect of A.'s title to an oleo- margarine patent, that " a final injunction and decree was obtained against A. in the United States circuit court," whereas, in fact, there had been only an ex parte order for a 'preliminary injunction, and the suit was discon- tinued by consent of the parties, it was held in an action for slander of title that such allegations are in excess of the occasion, and not merely an assertion of supposed right, and must be presumed to be malicious. The gist of the action is the malice or bona fides of the statement. Andrew v. Deshler, 45 N. J. L., 167. 1 i. Where the slander charged is the record of a claim, evidence that the plaintiff was thereby precluded from selling the land, and from using the proceeds of the sale iii his business, is sufficient to support a verdict for sub- stantial damages witliout further proof of special damages. Collins v. Whitehead, 34 Fed. Eep., 121. 12. The defendant is entitled to a nonsuit if the evidence shows that the existence of the title alleged to have been slandered is in dispute in a prior action between the parties. Thompson v. White, 70 Cal., 135. 13. A levy of execution against one person upon lands belonging to an- other, and without going upon the land, does not excuse a contract pur- chaser of the land from fulfilling his contract, creates no lien upon it, and is not an actionable wrong where there is no malice ; and, if not alleged to be malicious, it will not sustain an action for a slander of title. Walkley V. Bostwick, 13 N. W. Rep., 780 (49 Mich., 374). , 14. In an action brought by the defendant in equity against the plaintiff for slandering the title of the former to certain slaves by him exposed to public sale, a verdict was found for him, and the defendant at law brought his bill praying for relief and an injunction against the verdict. It was held that, as the loss in the sale of the slaves was caused by the plaintiff, even though he was beUeved to have designed no injury, he was bound to make reparation, and his bill was dismissed. Ross v. Pines, Wythe (Va.), 71. 15. In an action for slander of title the judge charged the jury that the question for them to determine was whether the defendant made the al- leged statements in good faith and under an honest impression of their being true, or whether he made them maliciously and for the purpose of slandering the title of the plaintiff; that the question whether the words were maliciously or bona fide spoken depended very much upon their truth or falsity — the circumstances under which they were spoken, whether honestly to caution purchasers, or to alarm them with bugbears of their own creation. It was held that the charge was proper. Kendall v. Stone 3 Sandf. (N. Y), 369; 5 N. Y. (1 Seld.), 14. SLANDER OF PEOPEETY. 213 16. A card published by the defendant, in an action for slander of title, cautioning all persons not to purchase a certain tract of land of the plaintiff, alleging that he obtained the title from him (the defendant) under false pretenses, and declaring that he should institute a suit to annul the title, was held, under the circumstances, not to show malice. McDaniel v. Baca. 3Cal., 326. 17. In an action for slander of the title to personal property where the alleged slander consisted in claiming the title to such property where offered for sale as the property of another, to recover malice must be shown ; and to rebut malice the defendant may prove that he was advised by a lawyer to forbid the sale to render his title under a mortgage effectual. Hill v. Ward, 13 Ala., 310. IS. Proof of other conversations of the defendant respecting the same title is admissible on the question of malice; and the quo animo with which the words charged were spoken may be shown by evidence of con- versations of the defendant subsequent to the commencement of the suit. Kendall v. Stone, 2 Sandf. (N. Y.), 269. See 5 N. Y. (1 Seld.), 14. 19. In an action for slander of title to land exemplary damages are not to be awarded unless there be proof of a wanton and malicious attempt to injure the owner. So held in an action brought by a person whose father- in-law, in consideration of a life support, had conveyed the land to him, against a brother-in-law, for saying to a person who was negotiating a pur- chase, "If he bought the land he would buy a lawsuit." Van Tuyle v. Einer, 3 111. App., 556. 20. In an action for slander of title, whereby the plaintiff was prevented from procuring money on mortgage, if the complaint does not set forth the name of the person who would otherwise havelent money on the mortgage, but was prevented by the slander, it is bad on demurrer. Linden v. Gra- ham, 1 Duer (N. Y.), 670. 21. The defendant in an action for slander of title by setting up title in himself changes tlie suit into a petitory action, in which he becomes plaint- iff ; and he must succeed or fail on the strength of his own title and not on the weakness of his adversary's title. Gray v. Ellis, 33 La. Ann., 249 ; Clark- son v. Vincent, 33 La. Ann., 613. 22. The rule of practice which, in an action of slander of title, imposes on the defendant who reconvenes and sets up title to the property the bur- den of proof which rests on the plaintiff in a petitory action, applies only to the case where the defendant is out of possession. Where the defendant is himself in actual possession, the plaintiff cannot so change his position by the form of action to which he resorts as to escape the burden imposed on him by law of establishing his title. In such an action, if the title relied on by defendant is not a valid one, he cannot be permitted to controvert a confirmation of the plaintiff's title by the government, nor to require that the plaintiff's title should be traced from the original claimant to the con- firmee. Griffon v. Blane, 13 La. Ann., 5; Moore v. Blane, id., 7; Pontalla V. Blane, id., 8. Digest of English Cases. 1. Plaintiff succeeded to certain lands as heir-at-law ; the defendant as- serted that plaintiff was a bastard ; plaintiff was in consequence put to great expense to defend his title, Elborow v. Allen, Cro. Jac, 643. 214 SDANDEK OF PEOPEETT. 2. To call a man a bastard while his father or other ancestor is alive may be actionable on general principles, if special damage ensue, such as the loss of a marriage, or if he be disinherited in consequence of defendant's words (a very improbable result, as his father must know better than the defendant whether the plaintiff is a bastard or not) ; but it is not the sub- ject of an action for slander of title ; for, even though heir-apparent, plaint- iff has no title, but only a mere expectancy. Nelson v. Staff, Cro. Jao., 433; Humphrys v. Stanfeild, vel Stridfield, Cro. Car., 469; Gtodb., 451; Sir Wm. Jones, 388; 1 Boll. Abr., 38; Turner v. Sterling, 3 Vent., 26; Anon., 1 Roll. Abr., 37; Banister v. Banister, 4 Rep., 17. 3. The defendant falsely represented to the bailiff of a manor that a sheep of the plaintiff was an estray, in consequence of which it was wrongfully seized. Held, that an action on the case lay against him. Newman v. Zaohary, Aleyn, 3. 4. The plaintiff was desirous to sell his lands to any one who would buy them, when the defendant said that the plaintiff had mortgaged all his lands for lOOi. , and that he had no power to sell or let the same. No special damage being shown, judgment was stayed. It was not proved that any one intending to buy plaintiff's lands heard defendant speak the words. Manning v. Avery, 8 Keb., 153; 1 Vin. Abr., 553. 6. The plaintiff was possessed of tithes, which he desired to sell ; the de- fendant falsely and maliciously said, "His right and title thereunto is nought, and I have a better title than he." As special damage it was al- leged that the plaintiff " was likely to sell, and was injured by the words; and that by reason of the defendant's speaking the words, the plaintiff could not recover his tithes." Held insufficient. Cane v. Gelding, Styles, 169,176; Law v. Harwood, SirWm. Jones, 196; Palm., 529; Cro. Car., 140. 6. Lands were settled on D. in tail, remainder to the plaintiff in fee. D. being an old man and childless, plaintiff was about to sell his remainder to A., when the defendant interfered and asserted that D. had issue. A. con- sequently refused to buy. Held, that the action lay. Bliss v. Stafford, Owen, 37; Moore, 188; Jenk., 247. 7. The plaintiff's father being tenant in tail of certain lands which he was about to sell, the purchaser offered the plaintiff a sum of money to join in the assurance, so as to estop hira from attempting to set aside the deed should he ever succeed to the estate-tail; but the defendant told the pur- chaser that the plaintiff was a bastard, wherefore he refused to give the plaintiff anything for his signature. Held, that the plaintiff had a cause of action, though he was the youngest son of his father, and his chance of succeeding was therefore remote. Vaughan v. Ellis, Cro. Jac, 313. 8. The plaintiff was the assignee of a beneficial lease, which he expected would realize lOOZ. But the defendant, the superior landlord, came to the sale and stated publicly : "The whole of the covenants of this lease are "broken, and I have served notice of ejectment ; the premises will cost £70 to put them in repair." In consequence of this statement the property fetched only thirty-five guineas. Rolfe, B., left to the jury only one ques- ' tion : Was the defendant's statement true or false? and they found a ver- dict for the plaintiff — damages £40. But the court of exchequer granted a new trial on the ground that two other questions ought to have been left to the jury as well : Was the statement or any part of it made maliciously? SLANDER OF PROPEETY. 215 and. Did the special damage arise from such malicious statement or from such part of it as was malicious? Brook v. Rawl, 4 Exch., 521 ; 19 L. J., Ex., 114; Smith v. Spooner, 3 Taunt., 246; Milman v. Pratt, 3 B. & O., 486; 3 D. & R., 728; Watson v. Reynolds, Moo. & Mai., 1. 9. An advertisement was sent to the Wolverhampton " Chronicle" in the ordinary course of business, and published once on January 6, 1868. It was asfoUows: " Important notice. Horsehill estate. The public are respect- fully requested not to buy any property formerly belonging to A., B. and C. without ascertaining that the title deeds of the same are correct, as the heirs are not dead nor abroad, but are still alive." This estate was at that moment advertised for sale in building lots ; but this advertisement revived all previous doubts about plaintiff's title, and rendered the estate practically unsalable. On January 13th plaintiff wrote and complained of this adver- tisement, and asked for the name and address of the person who sent it to the paper. This the proprietor of the paper at once furnished, but on Jan- uary 30th he was served with a writ. On February 10th he inserted an apology. But the jury, under the direction of Keating, J., found for the plaintiff. Ravenhill v. Upcott, 33 J. P., 399. 10. The plaintiff held one hundred and sixty shares in a silver mine in Cornwall, which he said were worth £100,000. ToJlervey and Hayward eacli filed a bill in chancery against the plaintiff and others claiming cer- tain shares in the mine, and praying for an account and an injunction, and for the appointment of a receiver. To these bills plaintiff demurred. Be- fore the demurrers came on for hearing a paragraph appeared in the de- fendants' newspaper to the effect that the demurrers had been overruled ; that an injunction had been granted; that a receiver had been duly ap- pointed, and had actually an-ived at the mine, — all of which was quite untrue. A verdict having been obtained for the plaintiff, damages £5, the court of common pleas arrested judgment on the ground that there was no sufficient allegation of special damage, and this although the declaration contained averments to tlie effect that ' ' the plaintiff is injured in his rights ; and the shares so possessed by him, and in which he is interested, have been and are much depreciated and lessened in value; and divers persons have believed and do believe that he has little or no right to the shares, and that the mine cannot be lawfully worked or used for his benefit ; and that he hath been hindered and prevented from selling or disposing of his said shares in the said mine, and from working and using the same in so ample and beneficial a manner as he otherwise would have done." Odgers on L. 6 S., 141 ; Malachy v. Soper and another, 3 Bing. N. C, 371 ; 3 Scott, 733; 3 Hodges, 317; Hart and another v. Wall, 3 C. P. D., 146; 46 L. J., C. P., 327; 25 W. R., 373. 1 1. The plaintiff put up for sale by public auction eight unfinished houses in Agar Town. The defendant, a surveyor of roads appointed under the 7 and 8 Vict., ch. 84, had previously insisted that these houses were not being built by the plaintiff in conformity with the act. He now attended the sale and stated publicly, " My object in attending the sale is to inform purchas- ers, if there are any present, that I shall not allow the houses to be finished until the roads are made good. I have no power to compel the purchasers to complete the roads; but I have power to prevent them from completing 216 SLANDER OF PROPEETY. the houses until the roads are made good." In consequence only two of the carcasses were sold, and they realized only £35 each instead of £65. The jury found a verdict for the plaintiff for £18 13s. But the court of common pleas held that there was no evidence of malice to go to the jury; for malice Is not to be inferred from the circumEtance of the defendant having acted upon an incorrect view of his duty, founded upon an erroneous con- struction of the statute. Pater v. Baker, 3 C. B., 831 ; 16 L. J., C. P., 134; 11 Jur., 370: Hargreave v. Le Breton, 4 Burr., 3433. 12. Plaintiff had purchased the manor and castle of H. in fee from Lord Audley, and was about to demise them to Ealph Egerton for a term of twenty- two years, when the defendant, a widow, said, " I have a lease of the castle and manor of H. for .ninety years; " and she showed him what purported to be a lease from a former Lord Audley to her husband for a term of ninety years. This lease was a forgery, and the defendant knew it. Held, that an action lay for slander of title; though the defendant had claimed a right to the property herself. It would have been otherwise had she not known that the lease was a forgery. Sir G. Gerard v. Dickenson, 4 Rep., 18; Cro. E!iz., 197. And see Fitzh. Nat. Brev., 116 (B. & D.); Lovett V. Weller, 1 Roll. R., 409. 13. The plaintiff was the widow and administratrix of her deceased hus- band, and advertised a sale of some of his property. Defendant, an old friend of the husband, thereupon put an advertisement in the papers offer- ing a reward for the production of the will of the deceased. The defendant subsequently called on the solicitor of the deceased and was assured by him there was no will ; but in spite of this the defendant attended at the sale and made statements which effectually prevented any person present from bidding. After waiting twelve months the plaintiff again put the property up for sale and defendant again stopped the auction. Cockburn, C. J., left it to the jury to, say whether, after the interview with the plaintiff's solic- itor, defendant could still possess an honest and reasonable belief that the deceased had left a will. The jury found that he had not that belief. Ver- dict for the plaintiff. Damages, £54 7s. Atkins v. Perrin, 3 F. & F., 179. 14. Plaintiff held lands on lease from Home, which he put up for sale. Defendant, who was Home's attorney, attended and said publicly before the first lot was put up, " There is a suit depending in the court of chancery in respect to this property ; encroachments have been made ; proceedings will be taken against the purchaser ; there is no power to sell the premises ; a good title cannot be made," etc. Littledale, J., directed the jury that defendant was not liable if he hona fide, though without authority, raised such objections only as Home, if present, might lawfully have raised. Verdict for the plaintiff. Damages, one farthing. Watson v. Reynolds, Moo. & Mai., 1; Pawley v. Scratton, 3 Times L. R., 146. 16. The lessee of a hotel agreed to sell her lease and certain valuable tenant's fixtures to Turner. Defendant, the assignee of the lessor, there- upon gave notice to Turner that he claimed most of the fixtures as land- lord's fixtures, and that if Turner bought them he would have to give them up at the end of the term or pay defendant for them. Held, that no action lay, for there was no evidence of malice, although defendant had no pres- ent property in the goods. Baker and others v. Piper, 3 Times L. R., 733. SLAKDEE OF PROPEETY. 217 16. The defendant wrongfully and maliciously caused certain persons who had agieed to sell goods to the plaintiff to refuse to deliver them by asserting that he had a lien upon them, and ordering those persons to re- tain the goods until further orders from him, he well knowing at the time that be had no lien. Held, that the action was maintainable, though the persons who had the goods were under no legal obligation to obey the or- ders of the defendant, and their refusal was their own spontaneous act. Green v. Button, 3 C, M. & E., 707; Barley v. Walford, 9 Q. B.. 197; 15 L. J., Q. B., 369; 10 Jur., 917. 1 7. A. died possessed of furniture in a beer-shop. His widow, without taking out administration, continued in possession of the beer-shop for three or four years and then died, having whilst so in possession conveyed all the furniture by bill of sale to her landlords by way of security for a debt she bad contracted with them. After the widow's deatli the plaintiff took out letters of administration to the estate of A., and informed the defendant, the landlords' agent, that the bill of sale was invalid, as the widow had no title to the furniture. Subsequently the plaintiff was about to sell the fur- niture 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 non- suited. Held, that the mere fact of the defendants' having been told before the sale that the bill of sale was invalid was no evidence of malice to be left to the jury, and that the plaintiff was therefore properly nonsuited. Steward v. Young, L. E., 5 C. P., 132; 39 L. J., C. P., 83; 18 W. E., 493; 23 L. T., 168. And see Blackham v. Pugh, 3 C. B., 611 ; 15 L. J., C. P., 290. § 9. Slander of the Quality of Property.— False and mali- cious statements disparaging an article of property, when fol- lowed as a natural, reasonable and proximate result by special damase to the owner, are actionable.' An untrue statement disparaging a man's goods, published without lawful occasion and causing him special damage, is actionable. This is laid down as a general principle by Baron BramvTell;^ audit applies although no imputation is cast on the plaintiflf's private or professional character. Nor, in the opinion of the same learned judge, is it necessary to prove actual malice; it is sufficient if it be made "without reason- able cause." At the same time it is not actionable for a man to commend 1 Paul V. Halferty, 63 Penn. St., 46 ; Eawl, 4 Welsby, H. & G., 531 ; Weth- Gott V. Pulsifer, 133 Mass., 235; erell v. Clerkson, 13 Mod., 597; Cook Manning v. Avery, 3 Keble, Eng. v. Cook, 100 Mass., 194. K. B., 153 ; Swan v. Tappan, 5 Cush., ^ Western Counties Manure Co. v. Mass. 104;WesternCo. V. LawesCo., Lawes Chemical Manure Co., L. R., L. E.', 9 Exch., 218; Malachy v. 9 Ex., 218, 222; 43 L. J., Ex., 171; 28 Soper, 3 Bing. N. C, 371; Brook v. W. E., 5. 218 SLAKDER OF PEOPEETT. his own goods, or to advertise that he can make as good arti- cles as any other person in the trade.' Competition between rival traders is allowed to any extent, so long as only lawful means are resorted to.^ But force and violence must not be used;' nor threats,* nor imputations of fraiud or dishonesty.' Illustrations — American Cases. 1. Ill a Minnesota case the complaint alleges that the plaintiff, a horse- dealer, owned January 30, 1886, and still owns a race horse, which then was and still is for sale; that on that day the defendant maliciously pub- lished in a newspaper of large circulation, of which he was proprietor, a statement that the horse was twenty-one years old, when he was not more than twelve years old, as defendant well knew, thereby intending' to injure the sale of the horse by plaintiff, to "his pecuniary loss and damage ; that at said time plaintiff had " a chance to sell and was negotiating a sale" of said horse for $1,000, and but for said false publication would have sold him for that sum; and that solely because of said false publication " plaintiff lost the chance to sell said horse : the negotiations were broken up by said par- ties who contemplated purchasing; no one will pay more than $500." And that plaintiff has accordingly suffered damages in the sum of $500. To this declaration the court sustained a demurrer and an appeal was taken. The supreme court sustained the ruling of the court below. In the opinion Berry, J., says: "False and malicious statements disparaging an article of property, when followed as a natural, reasonable and proximate result by special damage to the owner, are actionable. Does the complaint state a cause of action under the rule? That the statement complained of was false and malicious is distinctly averred. It was also prima facie dispar- aging ; for prima facie, as a matter of common knowledge, a horse at twenty-one years of age is less valuable than he is at twelve. The com- plaint also alleged, in effect, that the plaintiff's loss of sale of his horse was the result of the publication ; and there is no difficulty in conceiving of a state of facts showing that the intending purchaser was influenced and led to decline or refuse to purchase by the publication complained of, and hence no difficulty in conceiving that the failure to sell to him may have been a natural, reasonable and proximate consequence of said publi- cation. But the allegation of special damage is insufficient. The action is in the nature of one for slander of title, and hence is not an ordinary action for slander, properly so called, but an action on the case for special dam- ages sustained by reason of the speaking complained of. Special damages are therefore of the gist of the action. Without them the action cannot be iHarman V. Delaney, 3 Str., 898; 1 476; 54 I,. J., Q. B., 540; 53 L. T., Barnard., 289; Fitz., 131. 368; 49 J. P., 646; Johnson v. Hitch- 2Pudsey Coal Gas Co. v. Corpora- cock, 15 Johns., 185. tion of Bradford, L. R., 15 Eq., 167; 3 Young v. Hickens, 6 Q. B., 606. 43 L. J. , Ch. , 393 ; 31 W. E. , 386 ; 38 * Tarleton and others v. McGawley, L. T., 11 ; Mogul Steamship Co. v. Peake, 204, 370. M'Gregor, Gow & Co., 15 Q. B. D., sQdgers on L. &S., 148. SLANDER OF PEOPEETY. 219 maintained; and therefore a complaint failing to allege them failed to al- lege the cause of action. Where loss of sale of a thing disparaged is claimed and relied on as special damages occasioned by the disparagement, it is in- dispensable to allege and show a loss of sale to some particular person ; for the loss of a sale to some particular person is a special damage and of the gist and substance of the action." "Wilson v. Dubois, 35 Minn., 471 ; 39 N. W. Rep., 68. 2. A Massachusetts Case: Seth W. Boynton brought an action against the Shaw Stocking Company to recover damages for an alleged libel. At the trial it appeared from the evidence offered by the plaintiff, who was a tradesman doing business in Waltham, that on May 3, 1886, one Guild, who sold defendant's goods on commission, called at plaintiff's place of business and represented that he had a large stock of navy blue, first quality Shaw- knit stockings to sell ; that they were in such sizes that defendant would sell them cheap, as it desired to reduce its very large stock ; that plaintiff examined the samples of the goods offered, which were first quality navy blue, Shaw-knit stockings, and after being assured by said Guild that the stock was like the samples, of the very first quality, the plaintiff purchased one hundred dozen pairs of the stockings for |118.75: that he received the stockings on May 6, 1886, and upon examination they appeared to be of first quality navy blue ; that after the receipt of the stockings the plaintiff caused to be iuserted in a certain paper published at Waltham the following ad- vertisement: "Shaw-knit hose, navy blue, size eight to eleven, first quality goods, at twelve -and one-half cents per paii'." That thereafter the defend- ant caused to be inserted in six issues of the Waltham "Daily Tribune," a newspaper published in Waltham, the following (which was the libel com- plained of): "Caution. — An opinion of Shaw-knit hosiery should not be formed from the navy blue stockings advertised as of first quality by Messrs. S. W. Boynton & Co. at twelve and one-half cents, since we sold that firm, at less than ten cents a pair, some lots which were damaged in the dye- house. (Signed) Shaw Stocking Co., Lowell, May 29, 1886." The plaintiff submitted evidence tending to show that the stockings had not been dam- aged in the dye-house, and they were not damaged in any other respect, but were first quality stockings, which the defendant well knew. On this evidence the court ruled that the action could not be maintained, and in- structed the jury to return a verdict for the defendant. On an appeal being taken to the supreme court it was held that the ruling of the trial court was proper ; that an action does not lie for the mere disparagement of another's goods without an averment and proof of special damage. Boynton v. Shaw Stocking. Co., 146 Mass., 219: 15 N. E. Rep., 507. 3. A New York Case: Tobias sued Harland for a libel. The declaration, after stating by way of inducement that the plaintiff used and exercised the trade and business of a manufacturer of patent lever watches, called S. J. Tobias & Co.'s patent lever watches, and that the defendant was a dealer in patent lever watches mauufactured by M. J. Tobias and Robert Rockell and by otlier persons, averred that the defendant, intending to de- fame and slander the plaintiff and to injure and prejudice him in the use and exercise of his trade and business of a manufacturer of patent lever watches, falsely and maliciously spoke and published of and concerning the 220 SLA.NDEE OF PEOPEETY. plaintiff in his said business the following words : " 1. Tobias' watches [meaning the watches manufactured by the plaintiflE] are bad. 2. S. J.- Tobias & Co.'s watches are bad. 3. S. J. Tobias & Co.'s watches are inferior watclies. 4. Tobias' watches are inferior watches. 5. This watch [meaning a patent lever watch which he held in his hand, and which had been man- ufactured by the plaintiff] is not a good watch. 6. The watch [meaning, etc.] is an inferior watch. 7. This watch [meaning, etc.] is a bad watch. 8. S. J. Tobias' watches [meaning the watches manufactured by the plaint- iff] are inferior to M. J. Tobias' and to Eockell's. 9. This watch [meaning a watch ho held in his hand, manufactured by the plaintiff] is inferior to M. J. Tobias' and to Eockell's ; " and concluded by averring that by means of the speaking and publishing of the said words the plaintiff was greatly in- jured and prejudiced in his trade and business, and divers citizens, since the speaking and publishing of the said words, had refused to purchase the watches manufactured by the plaintiff, and so the plaintiff was deprived of great gain and profit. To this declaration a demurrer was sustained and the plaintiff appealed. In the supreme court Marcy, J., said: "If the, plaintiff can recover at all it must be because the words are actionable in themselves. Whether they are so or not is the only question presented by the demurrer. The words charged do not directly impeach the integrity, knowledge, skill, diligence or credit of the plaintiff. They only relate to the quality of the article which he manufactures or in which he deals. The words which relate to a particular watch, and those which are obviously mere comparisons, are clearly not actionable. No instance can be found, I believe, where an action has been sustained on words for misrepresenting the quality of any single article which a person has for sale, unless special damages are alleged and proved. To impute ignorance to an attorney or counselor in a particular cause, or want of skill to a physician in relation to the disease of a particular patient, is not actionable. On the same prin- ciple, an allegation that a manufacturer has made a particular article bad cannot be a slander. A contrary doctrine would, in my apprehension, be exceedingly pernicious. It would render a man liable to be called into court to justify an unfavorable opinion he might express of any manu- factured article which another had for sale. It would involve a strange contradiction to hold a man answerable for words imputing defects in an article of merchandise, and to exonerate him from responsibility when he charged his neighbor with a defect or want of moral virtue, or the neglect of moral duty or obligation." Tobias v. Harland, 4 Wend. (N. Y.), 537. Citing BuUer's N. P., 71; Saund., 343, n. 5; 1 Strange, 666; Cro. Eliz., 680; Foot v. Brown, 8 Johns. (N. Y.), 64; Dixie v. Fenn, Jones,»444; Freem., 25; 1 Vin. Abr., 477; Tobart v. Tippe, 1 Camp., 330. 4. A Massachusetts Case: In an action to recover damages for a libel, the publication of which was admitted by the defendant, the following words were complained of : " Probably never in the history of the ancient and hon- orable artillery company was a more unsatisfactory dinner served than that of Monday last. One would suppose from the elaborate bill of fare that a sumptuous dinner would be furnished by the caterer, Dooling, but instead a wretched dinner was served, and in such a way that even hungry barbarians might justly object. The cigars were simply vile, and the wines not much bet- SLANDER OF PEOPERTT. 221 ter." At the trial counsel in opening the case to the jury stated that the plaint- iff was a caterer in the city with a very large business, and acted as caterer upon the occasion referred to ; and also stated that he should offer no evidence of special damage. The court ruled, without any reference to any question of privilege that might be involved in the case, that the words set forth were not actionable in themselves, and that the plaintiff could not maintain his action without proof of special damage. And the counsel still stating that he should offer no evidence of special damage, the court ruled, as a matter of law, that the jury should render a verdict for the defendant, which was done, and the case was reported to the supreme judicial court for considera- tion. It was claimed by the plaintiff that the words were actionable in themselves as affecting him in his office, profession or business. For the defendant it was claimed that the words were not actionable in themselves, because they did not charge the plaintiff with the commission of a crime or with having some loathsome disease. Nor did they contain any defamatory reference to him personally or in his business, trade or office, etc. What . was published related solely to the quality and satisfactoriness of a public dinner which he provided on a single occasion. The court held that the language, though somewhat strong, amounted only to a condemnation of the dinner and its accompaniments. "Words relating merely to the quality of articles made, produced, furnished or sold by a person, though false and malicious, are not actionable without special damage." The charge was in effect that the plaintiff, being a caterer, on a single occasion furnished a very poor dinner, vile cigars and bad wine, and is not actionable without proof of special damage. Cooling v. Budget Co., 144 Mass., 358; 10 N. E. Rep., 809. Citing West. Co. Manure Co. v. Lawes Chem. Manure Co., L. R. , 9 Exch., 319; Young v. Macrae, 3 Best & S., 364; Ingram v. Lawson, 6 Bing. N. C, 313; Rignell v. Buzzard, 3 Hurl. & N., 317; Fen v. Dixee, W. Jones, 444; Evans v. Harlow, 5 Q. B,, 631 ; Tobias v. Harland, 4 Wend., 537. Digest of American Cases. 1. The defendants published of the plaintiff, a druggist, that he sold what he claimed to be genuine Netherlands Haarlem oil, and that they (the de- fendants), doubting it, had sent one of his labels to Haarlem and received from the rector of the gymnasium a letter which was given at length stat- ing that a consignment of genuine oil was on its way to them, and that the label which they sent to him was not genuine and was probably printed in America. They (the defendants) then went on to make some comments as to the genuineness of the oil sold by the plaintiff, warning buyers from dealing with any one but themselves,, and added a letter from one of the two manufacturing houses in Haarlem, stating that the label did not come from that establishment, and charging that Steketee (the plaintiff) had at one time sold genuine oil, and had caused the oil and wrappers to be coun- terfeited, and then sold the spurious article as genuine. It was held by the supreme court of Michigan as libelous in not only depreciating a trades- man's wares, but also in charging him with counterfeiting genuine articles and their labels. Kim et al. v. Steketee, 48 Mich., 333 ; 13 N. W. Rep., 177. 2. A narr. for slander averred that on a certain day, plaintiff then being, as he still is, engaged in the " business of butchering cattle for sale," de- 222 SLANDER OF PEOPERTY. fendant uttered concerning hiia and his business the words: "It is better to buy western beef than to buy beef from a slaughter-house where con- demned and diseased cattle are slaughtered ;" and the words: "Did you hear of those diseased stillery bulls [plaintiff] was getting, and selling the meat at four and four and one-half cents, and bulls are selling for that; it is cheaper to buy the meat than bulls." It was held that the words as thus set out were actionable in themselves, and a colloquium was unnecessary. It sufficiently appeared that plaintiff was engaged in killing and selling cattle for human food, especially where the innuendo averred the mean- ing to be that plaintiff was slaughtering and selling the carcasses of diseased cattle for meat and human food. Blumhardt v. Rohr (Md.), 17 Atl. Eep., 266. 3. Where one under contract for the purchase of property is induced to refuse to complete the purchase by reason of slanderous words uttered con- cerning the property by a third person, the vendor cannot sue such person for slander. His remedy is on the contract of sale. Brentman v. Note, 3 N. Y. S., i20. 4. A dealer in paints of a particular quality, who sells the same with the condition that they shall be used as they came from the manufacturers, and be properly put on, and who subsequently discovers that one to whom he has sold such paints has put in the same foreign ingredients, is not, as a rule, liable in damages for refusing to sell further to such purchaser, and for stating that he had not kept his agreement, especially when the state- ments are made without malice, under the firm belief that they are true and for self -protection to the party himself, or to parties interested entitled to information. Lynch v. Febiger (La.), 1 So. Rep., 690. 5. Where injury is implied from the use of certain words, there is no error in the admission of testimony that witness cannot tell how much re- ports of this sort injured plaintiff's business, and that he should think it would necessarily injure it. Blumhardt v. Rohr (Md.), 17 Atl. Rep., 266. 6. Plaintiff's testimony as to the number of cattle killed by him per week before a slander as to the quality of cattle he butchered and the number killed afterwards went to the question of general and not special damages, and exception to it as evidence of special damage not authorized by the declaration is not well taken. Blumhardt v. Rohr (Md.), 17 Atl. Rep., 266. 7. Issue having been joined in the plea of the truth of the alleged de- famatory words, evidence that plaintiff was not selling meat diseased or unfit for human food, and therefore evidence as to the stage of pleuro-pneumonia at which theme at becomes diseased is proper. Blumhardt v. Rohr (Md.), 17 Atl. Rep., 266. 8. The admission of evidence that proper precautions for destroying dis- eased animals were taken at plaintiff's place of slaughtering, and testimony as to the construction of the buildings given by an expert, and as to the condition of the premises, is not reversible error. Blumhardt v. Rohr (Md.), 17 Atl. Rep., 266. 9. In an action for publishing a false and malicious statement concerning the property of the plaintiff, the special damage alleged being the loss of sale of the property, evidence of its value as a scientific curiosity or for ex- hibition is immaterial. Fair and reasonable comments, however severe in SLANDEE OF PUOPEETY. 223 terms, may be published in a newspaper concerning anything which is made by its owner a subject of public exhibition, and are privileged communica- tions, for which no action will lie without proof of actual malice. Gott v. Pulsifer, 8 Lathrop (123 Mass.), 235. 10. In an action for publishing in a newspaper a false and malicious statement concerning the property of another, actual malice may be in- ferred from false statements exceeding the limits of fair and reasonable criticism, and recklessly uttered in disregard of the right of those who might be aflfected by them ; and it is erroneous to instruct the jury that the plaintiff must prove a disposition wilfully and purposely to injure the value of the property, with wanton disregard of the interest of the owner. Gott V. Pulsifer, 8 Lathrop (122 Mass.), 235. 11. Plaintiff sued for a libel consisting of an article and a picture which showed his saloon to be the resort of degraded characters, etc. It was held that the libel was on the place rather than on the plaintiff, and that an allegation of special damages was necessary to show a cause of action. Ken- nedy V. Press Pub. Co., 41 Hun (N. Y.), 423. 12. It is actionable to falsely and maliciously disparage the value of a race-horse if special damage results. But special damage is the gist of the action ; and where the loss of the sale of the horse to some particular person is the special damage relied upon, it must be specially averred and proved. Wilson v. Dubois, 35 Minn., 471. 13. No action lies for representing that the plaintiff's ferry was not to be as good as another rival ferry, and inducing and persuading travelers to cross at the other and not at the plaintiff's ferry. Johnson v. Hitchcock, 15 Johns. (N. Y.), 185. Digest op English Cases. 1. The defendants falsely and without lawful occasion published a de- tailed analysis of the plaintiffs' artificial manure and of their own, in which the plaintiffs' manure was much disparaged and their own extolled. Special damage having resulted, held that the action lay. Western Counties Ma- nure Co. v. Lawes Chemical Manure Co., L. R., 9 Ex., 218; 43 L. J., Ex., 171 ; 23 W. R., 5; Thorley's Cattle Food Co. v. Massam, 6 Ch. D., 583; 46 L. J., Cb., 718; 14 Ch. D., 763; 38 W. R., 395 966; 41 L. T., 542; 43 L. T., 851; Salmon v. Isaac, 20 L. T., 885. 2. The defendant stated in Ireland that the plaintiff's ship was unsea- worthy ; consequently her crew refused to proceed to sea In her, and a ne- gotiation for the sale of her fell through. The ship was in England. But it was held that this fact would not give an English court jurisdiction. Casey v. Arnott, 2 C. P. D., 34; 46 L. J., C. P., 3; 25 W. R. 46; 35 L. T., 424. 3. The defendant published an advertisement denying that the plaintiff held any patent for the manufacture of "self-acting tallow syphons or lu- bricators," and cautioning the public against such lubricators as wasting the tallow. No special damage was alleged. Held, that the words were not a libel on the plaintiff, either generally or in the way of his trade, but were only a reflection upon the goods sold by him, which was not actionable without special damage. Evans v. Harlow, 5 Q. B., 624,- 13 L. J. , Q. B., 130 ; Dav. &M., 507; 8 Jur., 571. 224 SLANDEB OF PROPERTY. 4. " If a man makes a false statement with respect to the goods of A. in comparing his own goods with those of A., and A. suffers special damage, will not an action lie?" ffoung v. Macrae, 32 L. J., Q. B;, 8); and counsel answers, ' ' Certainly it would." " If a man were to write falsely that what another man sold as Turkish rhubarb was three parts brick-dust, and special damage could be proved, it might be actionable." Young v. Macrae, 33 L. J., Q. B., 7. 5. The defendant published a certificate by a Dr. Muspratt, who had com- pared the plaintiffs' oil with the defendant's, and deemed it inferior to the defendant's. It was alleged that the certificate was false, and that divers customers of the plaintiffs after reading it, had ceased to deal with the plaintiffs and gone over to the defendant. Held, that the plaintiffs' oil, even if inferior to the defendant's, might still be very good ; and that the falsity was alleged too generally, and that therefore no action lay. It was consist- ent with the declaration that every word said about the plaintiffs' oil should be true, and the only falsehood the assertion that defendant's was superior to it, which would not be actionable. " It is not averred that the defend- ant falsely represented that the oil of the plaintiffs had a reddish-browri tinge, was much thicker, and that it had a more disagreeable odor. If that had been falsely represented and special damage had ensued, an action might have been maintained." Young v. Macrae, 3 B. & S., 364; 33 L. J., Q. B., 6; 11 W. R., 63; 9 Jur. (N. S.), 539; 7 L. T., 354. 6. The defendant falsely represented to the bailiff of a manor that a sheep of the plaintiff was an estray, in consequence of which it was wrongfully seized. Held, that an action on the case lay against him. Newman v. Zachary, Aleyn, 8. § 10. Slander of Title to letters Patent, etc.— It has been held that this action will also lie for words uttered reflecting injuriously on a party's title to letters patent, copyrights, trade- marks, etc' In a recent English case, in which the plaintiff and the de- fendant were each of them possessed of a separate patent for the construction of spooling machines, the plaintiff was nego- tiating for the sale of his machines to different manufacturers, some of whom were already using the defendant's machines under licenses from him. The defendant wrote to these manu- facturers letters stating' that the plaintiff's machines were in- fringements of a patent of the defendant's, and that if they were used he (the defendant) would claim royalties for their use, which, if. not paid, he would take legal proceedings. In consequence of these threats, the plaintiff lost the sale of his machines. The plaintiff then brought his action, the declara- 1 McElwee v. Blackwell, 94 N. C, Mo. App., 339; Lovell Co. v. Hough- 361 ; Snow v. Tappan, 59 Mass. (5 ton, 54 N. Y. Sup. Ct., 60. Cush.), 104; Meyrose v. Adams, 13 SLAKDER OF PROPEETT. 225 tiou stating the facts above mentioned, and averring that the letters were falsely and maliciously written. The defendant pleaded not guilty. At the trial the plaintiff tendered evi- dence to show that the defendant's patent (which had not been disputed by scire facias or otherwise) was void for want of novelt}-, so that the plaintiff's machines were no infringement of the defendant's patent; but this evidence was rejected as immaterial, and a nonsuit was directed. It was afterwards held that the evidence was properly rejected, as, if admitted and accepted as true, it could only show that the patent was void, and not that the defendant made the communication to the intended purchasers mala fide, and without any intention of instituting proceedings against them. And it was also held that the nonsuit was right, as the action would not lie without proof that the claim of the defendant was a mala fide and ma- licious attempt to injure the plaintiff hy asserting a claim of right against -his own knowledge that it was without founda- tion.' Illustrations — Digest of American Cases. 1. Slander of title may be predicated upon letters patent, and an action for such slander or libel lies although the defendant has merely repeated what he has heard. Meyrose v. Adams, 12 Mo. App., 329. 2. Where the defendant, a book publisher, issued a circular charging that plaintiff, by certain publications, infringed defendant's copyright, plaintiff sued to recover damages sustained by the publication of the circu- lar. It was held that the suit was in the nature of aa action for slander of title, and that actual malice must be shown to justify a recovery. John W. Lovell Co. V. Houghton, 54 N. Y. Super. Ct., 60. 3. In an action for slander of title to a trade-mark, where the injury has been done more by acts and threats than by words, the complaint may be good although it does not set out the words. McElwee v. Blackwell, 94 N. C, 261. Digest of Engush Cases. 1. The plaintiffs were the makers of " Rainbow Water Raisers or Ele- vators," and they commenced an action for an injunction to restrain the defendants from issuing a circular cautioning the public against the use of such elevators as being direct infringements of certain patents of the de- fendants. The plaintiffs subsequently gave notice of a motion to restrain the issue of this circular until the trial of the action. The defendants then commenced a cross-action claiming an injunction to restrain the plaintiffs from infringing their patents. Held, by Kay, J., that as there was no evi- dence of mala fides on the part of the defendants, they ought not to be re- 1 Wren v. Weild, L. R., 4 Q. B., 730; 88 L. J., Q. B., 837. 15 226 SLANDER OF PROPERTY. strained from issuing the circular until their action had been disposed of, but that they must undertake to prosecute their action without delay. Household and another v. Fairburn and another, 51 L. T., 498. And now see 46 and 47 Vict., ch. 57, sec. S3; Barney v. United Telephone Co., 28 Ch. D., 394; 33 W. R., 576; 53 L. T., 573; Driffield Cake Co. v. Waterloo Cake Co., 31 Ch. D., 638; 55 L., J. Ch.. 391; 34 W. E., 360; 54 L. T., 210; Walker v. Clarke, 56 L. T., Ill ; 3 Times L. R., 297. 2. The defendant had a subsisting patent for the manufacture of spooling machines; so had the plaintiflf. The defendant wrote to certain manufact- urers, customers of the plaintiff, warning them against using the plaintiff's machine, on the ground that it was an infringement of the defendant's patent. Held, that " the action could not lie unless the plaintiff affirma- tively proved that the defendant's claim was not a bona fide claim in sup- port of a right which, with or without cause, he fancied he had, but a vialafide and malicious attempt to injure the plaintiff by asserting a claim of right against his own knowledge that it was without any foundation." Evidence to show that the defendant's patent, though subsisting, was void for want of novelty, was not admitted, as being irrelevant in this action. Wren v. Weild, L. E., 4 Q. B., 730, 737; 10 B. & S., 51 ; 38 L. J., Q. B., 88, 327; 20 L. T., 277. And see Dicks v. Brooks, 15 Ch. D., 22; 49 L. J., Ch., 812; 29 W. R., 87; 40 L. T., 710; 43 L. T., 71; Hammersmith Skating Rink Co. v. Dublin Skating Rink Co., ]0 Ir. R. Bq., 235. 3. But a patentee is not entitled to publish statements that he intends to institute legal proceedings in order to deter persons from purchasing alleged infringements of his patent, unless he does honestly intend to follow up such threats by really taking such proceedings. Rollins v. Hinks, li. R,, 13 Eq., 355; 41 L. J., Ch., 358; 20 W. R., 287; 26 L. T.. 56; Axmann v. Lund, L. R., 18 Eq., 330; 43 L, J., Ch., 655; 23 W. R., 789. 4. The holder of a patent, the validity of which is not impeached, who issues notices to the trade alleging that certain articles are infringemehts of his patent, and threatening legal proceedings against those who purchase them, is not liable to an action for damages by the vendor of those articles for the injury done to the vendor's trade thereby, provided such notices are issued bona ^da in the belief that the articles complained of are infringe- ments of the patent. Nor is he liable to be restrained by injunction from continuing to issue them until it is proved that they are untrue, so that his further issuing them would not he bona fide. Halseyv. Brotherhood (C. A.), 19 Ch. D., 886; 51 L. J., Ch., 233; 30 W. R., 279; 45 L. T., 640; affirming the decision of Jessel, M. R., 15 Ch. D., 514; 49 L. J., Ch., 786; 39 W. R., 9; 43 L. T., 368. 6. Where defendant has issued notices to plaintiff's customers asserting that plaintiff in selling certain goods is infringing defendant's patent rights, it is for the plaintiff to prove that the defendant's statements are false, and if no mala fides is proved, so that no damages could be recovered, the court will not grant an injunction. If in a judicial proceeding the statements are proved to be false in fact, an injunction will be granted against continu- ing them, as that would be acting mala fide. Burnett v. Tak, 45 L. T., 743. CHAPTEK XII. PUBLICATION OF DEFAMATORY MATTER. § 1. Publication Defined. 8. What Amounts to a Publication. 3. Illustrations — Digest of American Cases. 4. Digest of English Cases, 5. Publication by Telegraph. 6. Publication to Third Persons Necessary. 7. Ulustrationa — Digest of American Cases, 8. Digest of English Cases. 9. Husband and Wife as Third Persons. 10. A Libel — Deemed Published, when. 1 1. Illustrations — Digest of American Cases. 13. Digest of English Cases. 13. Joint and Several Liability. 14. The Composer Not Liable without Publication, 15. The Law Stated by Best, C. .L 16. Illustrations — Digest of English Cases. 17. Sale and Delivery of Libelous Compositions. 18. Every Sale or Delivery a Separate Publication. 19. The Author of a Slander Not Responsible for Voluntary and Unjustifi- able Repetitions. 20. Publication, when by Agent, etc. 21. Illustrations — Digest of American Cases, 23. Digest of English Cases. 23. Manner of Publication. 24. Manner of Sale and Delivery, 25. Publication by Postal Cards. § 1. FnMication Defined. — Publication is the communica- tion of the defamatory matter to some third person or per- sons. It is essential to the case that the words should be expressed; the law permits us to think as badly as we please of our neighbors so long as we keep our uncharitable thoughts to ourselves. So merely composing a libel is not actionable unless it be published. And it is no publication when the words are only communicated to the person defamed;' for that cannot injure his reputation. A man's reputation is the 1 Sheffll V. Van Dusen, 13 Gray (Mass.), 304. 228 PUBLICATION OF DEFAMATOBT MATTER. estimate in which others hold him; not the good opinion which he has of himself. The communication, whether it be in words or by signs, gestures or caricature, must be intelligible to such third person. If the words used be in the vernacular of the place of publication, it will be presumed that such third person understood them until the contrarj^ be proved. And it will be presumed that he understood them in the sense which such words properly bear in their ordinary signification, unless some reason appear for assigning them a different mean- ing. The burden is on the plaintiflf to prove publication.' § 2. What Amounts to a Publication. — It is not necessary that the publication of a libel should be effected solely or di- rectly by the author of it personally. For if a person having printed or written a defamatory statement parts with it in order that its contents may become known, or if a person communicates to a third person a libel hitherto unknown, either proceeding will amount to a publication by the former.^ The legal maxim applicable to such cases is the well-known one, qui facit per alium facit per se: he who does a thing by the instrumentality of another does it by himself — a rule ex- pressive of the force of agency, and adopted alike by the crim- inal and the civil branches of our law.' § 3. Illustrations — Digest of American Cases. — (1) Libel. 1. A defamatory charge made by one person against another person and contained in a letter written and mailed in the state of Nebraska (where both persons were residing) to a third person living in the state of West Virginia was held to be a sufficient publication to render the writer liable in the state of Nebraska to a criminal prosecution. Mills v. The State, 18 Neb., 575; 26 N. W. Rep., 354. 2. In an action for libel a publication charged the plaintiff with perjury in swearing that the contents of a certain bond represented the truth of a certain contract between himself and another. Held, that the defendant in support of his plea of justification might properly prove acts and sayings of the plaintiff inconsistent with the face of the bond. The act and the mode of publishing a libel are difficult to separate. Hence, although Georgia Code, section 2996, declares that by a plea of justification defend- ant " admits the act to be done," the jury is not bound in' all cases to con- 1 Odgers on L. & S., 151. » Flood on L. & a, 48. 2 Smith, Manual Ck>m. Law, 21. ILLUSTEATIONS — LIBEL. 229 aider the filing of such plea and the failure to establish it as aggravating tort. Ransone v. Christian, 49 Ga. , 491. 3. A count stating that the defendant sent a letter to the plaintiff, and that the same was, by means of such sending thereof, received and read by the plaintiff, is bad, as showing no publication, and is cause for arresting the judgment. Sending a letter sealed up is no publication ; and a letter is always to be understood as being sealed up, unless otherwise expressed. Lyle V. Clason, 1 Cai., 581. 4. The plaintiff, after so receiving a libelous letter from the defendant, sent for a friend of his and also for the defendant ; he then repeated the contents of the letter in their presence, and asked the defendant if he wrote that letter; the defendant, in the presence of the plaintiff's friend, admitted that he had written it. Held, no publication by the defendant to the plaint- iff's friend. Fonville v. Nease, Dudley (S. C), 303. 5. Where the defendant, before posting the letter to the plaintiff, had it copied, held, a publication by the defendant to his own clerk, who copied it. Keene v. Ruff, 1 Clarke (Iowa), 482. So where the defendant wrote a letter to the plaintiff himself, but read it to a friend before posting it. Sny- der V. Andrews, 6 Barb. (N. Y.), 43; McCombs v. Tuttle, 5 Blackf. (Ind.), 431. 6. The writer's reading to a stranger his libelous letter to the plaintiff, before dispatching it is a publication. Snyder v. Andrews, 6 Barb., 43. 7. Where a corporation, by its superintendent, prepares a"discharg«^ list," assigning a criminal act as a reason for the discharge of an employee, and sends it to its agents, and it reaches its destination and is read by its agents, this is a sufficient publication to support an action for libel against the corporation. Bacon v. Mich. Cent. R. R. Co., 55 Mich., 234; 21 N. W. Rep., 334. 8. The libelous matter was contained in a letter which came to the pros- ecuting witness sealed. He opened it, and, not being able to read, got his wife to read it to him. He afterwards, in tlie presence of the accused and others, mentioned the fact of having received the letter and stated its con- tents. The accused then admitted that he had written the letter. There was no evidence that the accused knew that the prosecuting witness could not read. Held, that there had been no publication of the libel. State v. Syphrett (S. C), 3 S. E. Rep., 624. 9. Whether the libel was published of and concerning the plaintiff, or whether by the person mentioned in the libel the plaintiff was intended, is a question of fact for the jury. Van Veohten v. Hopkins, 6 Johns., 311. 10. In an action for libel, based upon a newspaper publication, the plaint- iff may show that the article had been read by other persons, and that they had called his attention to it. Park v. Detroit Free Press Co. (Mich.), 1 L. R A., 599; 21 Ohio L. J., 19; 40 N. W. Rep, 731. 11. Where one authorizes an item to be inserted in a newspaper without directing in what part of it, he is responsible for its insertion in any part in which the publisher of the paper may place it. And where one publishes a libel in a newspaper, and, without his knowledge, a third person cuts the libel from the paper and sends it to another person, the first is responsible for its being so sent, if the sending it was a natural consequence of its pub- 230 PUBLICATION OF DEFAMATOET MATTER. lication in the paper — of which the jury are to judge. . Zin v. Hoflin, 33 Minn., 60; 31 N. W. Rep., 863. 12. 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 fade evidence of the publication by the defendant. Southwick v. Stevens, 10 Johns., 443. 13. Two persons having participated in the composition of a libelous let- ter written by one of them, which was afterwards put into the postoffice and sent by mail to the person to whom it was addressed, such participa- tion was held to be competent and sufficient evidence to prove a publication by both. Miller v. Butler, 6 Cush., 71. 14. A libelous article was published in the Providence " Gazette,'' a news- paper published in Rhode Island. Copies of the paper containing the arti- cle circulated at Rehoboth, Bristol county, Massachusetts. Held, that this was competent and conclusive evidence of a publication within Bristol county. Com. v. Blanding, 20 Mass., 304. 16. The defendant had been chairman of a public meeting, at which the libel in question 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 the publication. Lewis v. Few, 5 Johns., 1. 16. At the trial of an indictment for publishing a libel in a newspaper at a certain time and place the production of a copy of the newspaper contain- ing the libel, bearing date of a day within the statute of limitations, to- gether with evidence that it was purchased at a newspaper stand m said place, is sufficient evidence of the time and place of publication. Com. v. Morgan, 107 Mass., 199. 17. Laws of Michigan of 1885, page 354, section 3, providing that in suits for publication of libels in newspapers only actual damages proved can be recovered if it appear that the publication was in good faith, did not involve a criminal charge, was due to mistake, and that a retraction was published, is unconstitutional as depriving persons of all adequate remedy for injuries to reputation caused by the publication of charges involving moral turpi- tude, but not technically criminal, and for which injuries no retraction can effect a remedy. Park v. Detroit Free Press Co. (Mich.), 40 N. W. Rep., 731. 1 7a. The testimony of ministers who in their ministerial office have drawn from defendant statements of an ancient transaction which is the ground of suit is not admissible to show publication of the slander. Vickers v. Stoneman (Mich.), 41 N. W. Rep., 495. 18. In an action for libel brought against the Societe La Prevoyance, a corporation, it appeared that the corporation appointed a committee to in- vestigate certain bills for a weekly allowance presented by the plaintiff, without specially giving them, by vote or regulation of the corporation, any ILLUSTRATIONS — SLANDER. 231 directions or authority to make them report in print. The committee did, however, make a report in print at a regular meeting by placing in the secretary's desk printed documents or reports which were libelous. They were freely taken from the desk by members present at the meeting. All the corporation did at that meeting in respect to the report was to vote to hold a special meeting to pass upon its adoption. At the next meeting it voted to adopt the report. The court on hearing the case without a jury ruled there was no publication of the libel by the society, found for the de- fendant and reported the case to the supreme judicial court. It was held that under those circumstances there was no evidence of a publication of the libel by the defendant. De Senancour v. Societe La Prevoyance (Mass.), 16 N. E. Rep., 553. 1 9. The entry of the resolution of excommunication from membership in a church on the minute-book of the session and the exhibition of it to the members for their signatures does not constitute a publication. Landis v. Campbell, 79 Mo., 433. 20. A proprietor of a newspaper cannot be found to have " published " a libel, unless it is proved to have been read as well as printed and sold. Sedgwick, C. J., dissenting. Prescott v. Tansey, 50 N. Y. Sup. Court, 13. (2) Slander. 1. To shout defamatory words on a desert moor, where no one can hear you, is not a publication ; but if any one chances to hear you it is a publica- tion, although you thought no one was by. To utter defamatory words in a foreign language is not a publication if no one present understands their meaning ; but if defamatory words be written in a foreign language there will be a publication as soon as ever the writing comes into the bands of any one who does understand that language or who gets them explained or translated to him. If defamatory words be spoken in English when the only person present besides the plaintiff is a German who does not under- stand English, this is no publication. Hurtert v. Weines, 27 Iowa, 134. tJ. Where the defendant had a single conversation only with Mrs. C, a man it'll woman, in which he said: "What do you think of your minister? He has had intercourse with you, and I can prove it." In an action brought by the minister it was held that the words were actionable, although Mrs. C. knew them to be false, and that the publication was sufficient to enable him to sustain the action. Marble v. Chapin, 133 Mass., 225. 3. Uttering slanderous words in the presence of the persqn slandered only is not actionable. Sheffll v. Van Dusen, 13 Gray (Mass.), 304. 4. The defendant accused the plaintiff of the larceny of a parasol, there being no third parties present. The plaintiff took with her a third party for a witness, and called upon the defendant and requested him to repeat what he had before said to her. It was conceded that he complied with the request, and repeated the ivhole or a portion of it. Held, that this would have no tendency to show that any third person heard such first convei-sa- tion at the time it was had, and it would not do to say that the repetition of it in the presence and hearing of the witness who came with the plaintiff constituted of itself such a legal injury as to give rise to an action. The 232 PUBLICATION OF DEFAMATORY MATTEE. repetition was at her special request, and the maxim volenti nonfit injuria will apply.' Heller v. Howard', 11 Brad. (111.), 554. 5. Evidence that slanderous words were uttered In presence of the plaint- iff's family is proof of the publication of the slander. As much protection is due a man's reputation in the presence of his family as in the presence of strangers ; and where slanderous words are uttered of a person in the pres- ence of others, whether members of his family or strangers, they may be said to be spolten concerning him in the technical sense, and that consti- tutes a publication of the slander. Miller v. Johnson, 79 111., 58. 6. A bank director is not privileged in speaking, in the street or market- place, of the credit or standing of a merchant to a co-director; though his so doing in a meeting of the board, if the merchant were a customer of the bank, and probably if he were not, would be justifiable. Sewell v. Catlin, 3 Wend., 291. § 4. Digest of English Cases — Libel and Slaniler. — 1. Sending a letter through the post to the plaintiff, properly addressed to him, and fastened in the usual way, is no publication ; and the defend- ant is not answerable for anything the plaintiff may choose to do with the letter after it has once saf ely^ reached his hands. Barrow v. Le wellin, Hob. , 63. But where the defendant knew that the plaintiff's letters were always opened by his clerk in the morning, and yet sent a libelous letter addressed to the plaintiff, which was opened and read by the plaintiff's clerk lawfully and in the usual course of business, held a publication by the defendant to the plaintiff's clerk. Delacroix v. Thevenot, 3 Stark., 63. 2. The delivery of a newspoper containing a libel to the proper officer of the commissioners of stamps and taxes for revenue purposes was a sufficient publication of the libel, although the proprietor of the paper was required by law so to deliver it. R. v. Amphlit, 4 B. & C, 35; 6 D. & E., 125. So the delivery of a manuscript to be printed is a. sufficient publication, even though the author repent and suppress all the printed copies. For the com- positor must hear it read. Baldwin v. Elphinston, 3 W. Bl., 1087. See Watts V. Fraser and another, 7 Ad. & E., 323; 6 L. J., K. B., 336; 7 C. & P., 369; 1 M. & Rob., 449; 3 N. & P., 157; 1 Jur., 671; W., W. & D., 451. 3. Where it is proper that the words should be pripted, the publication, if it be one, to the printer and his men will not destroy any privilege which might otherwise exist. Lawless v. The Anglo-Egyptian Cotton and Oil Co., L. R., 4 Q. B., 263; 10 B. & S., 326; 38 L. J., Q. B., 129; 17 W. R., 498; Lake V. King, I'Lev., 341; 1 Saund., 131; Sid., 414; 1 Mod., 58. But merely to be in possession of a cop3' of a libel is no crime, unless some publication thereof ensue. R. v. Beere, Carth., 409; 13 Mod., 319; Holt, 433; 3 Salk., 417, 646; 1 Ld. Raym., 414. See 11 Hargrave's St. Tr., 333, sub Entick v. Carrington. i. A letter is published as soon as posted, and in the place where it is posted, if it is ever opened anywhere by any third person. Ward v. Smith, 6 Bing., 749; 4 M. & P., 595; 4 C. & P., 303; Clegg v. Laffer, 3 Moore & Scott, 737; 10 Bing., 350; Warren v. Warren, 4 Tyr., 850; 1 C, M. & R., 350; Shipley v. Todhunter, 7 0. & P., 680. 5. The defendant wrote a letter and gave it to B. to deliver to the plaint- BY TELEGRAPH. 233 iff. It was folded, but not sealed. B. did not read it, but conveyed it di- rect to the plaintiff. Held, no publication. Clutterbuck v. Chaffers, 1 Stark., 471 ; Day v. Bream, 3 Moo. & Rob., 54. So it is no defense that a tliird person was not intended to overhear the slander or to read the libel, if in fact he has done so. An accidental or inadvertent communication is quite sufficient. Shepheard v. Whitaker, L. E., 10 C. P., 003; 33 L. T., 402. § 5. Publication by Telegraph. — If a message be sent to the plaintiflf by telegraph the contents of the telegram are nec- essarily communicated to all the clerks through whose hands it passes. So with a post-card.' An English case, 1870 (Williams v. Freer, L. E., 9 0. P., 893 ; 43 L. J., C. P., 161; 22 W. E., 878; 30 L. T., 332): This was an action for libel tried before Brett, J., at the Leicester spring assizes, when the jury returned a verdict for the plaintiff — damages lOOZ. The plaintiff was a young woman employed as an account- ant in the shop of the defendant, and it was part of her duty to receive money. The defendant suspected, upon information which at the time seemed sufficient, that she had embezzled money, and he communicated with her father on the subject. A letter writ- ten to him, and a conversation had with him, were ruled by the learned judge to be privileged, and this disposed of one count for a libel and one count for slander. The defendant, however, also sent two telegrams to the plaintiff's father, and they contained the libels which formed the real subject of the action. They were as follows: (1) " Come at once to Leicester if you wish to save your child from appearing before the magistrates." (2) " Your child will be given in charge of the police unless you reply, and come to-day. She has taken money out of the till." The learned judge at the trial held that, if these had been written in a letter to the plaintiff's father, they would have been privileged communications; and told the jury that, as a matter of law, there was nothing to negative legal publication in the fact that matter which was undoubtedly libelous was comraunioated by means of a telegram. He reserved leave to 1 Whitfield and others v. S. E. R'y 239; 4 Jur, (N. S.). 688; Robinson v, Co., E., B. & E., 115; 37 L. J., Q. B., Jones, 4 L. E., Ir., 391. 23.4 PUBLICATION OF DEFAMATOET MATTEE. the defendant to move to enteir the verdict for him, if the court should be of opinion that he ought to have directed the jury that the transmission of libelous matter by a telegram was not evidence of publication. It was proved that the plaintiff was wholly innocent of the charge made against her, and it was also admitted that the defendant had acted lona fide in what he had done, and that he was not actuated by an}' malice in fact. O'Malley, Q. C. (Merewether with him), now moved pur- suant to the leave reserved, and also for a new trial, on the ground that the damages were excessive. The question is whether, when it is clear that the communication would have been privileged if sent by letter, it loses its privilege by being telegraphed. It is true that in Whitfield v. The Southeastern Kailway Compa'ny, 31 L. T. Eep., 113; 27 L. J., Q. B., 229, it was assumed that the railway company were publishers of a libel, as transmitting it by telegram; but telegrams are now on a different footing, and are not dealt with or forwarded by private companies, so that they are disclosed really to the re- ceiver only. The act transferring the telegraphs to the post- office (31 and 32 Vict., ch. 110, § 20) says " that any person having official duties connected with the postoffice who shall disclose or in any way make known the contents of any tele- graphic message shall be guilty of a misdemeanor." [Lord Coleridge, 0. J. : The words are, " who shall, contrary to his duty, disclose," etc., which makes'a great deal of difference, as it contemplates the disclosure in the course of duty to several persons.] The fact remains that it is a misdemeanor to dis- close it so that it can become the subject of common conver- sation and knowledge; and, therefore, I submit it is not pub- lished so as to strip a communication made in this way of the privilege with which it is clothed. Lord Coleridge, C. J.: I am of opinion that there should be no rule ifi this case. Mr. O'Malley cannot answer this ques- tion: Why, although the telegraph clerks are prohibited from telling the contents of a message to others, it is not told to them? As a fact it is told to them, and there may have been, as I understood'here is admitted, a publication to half a dozen persons, postoffice officials. This being so, and the judge hav- Br TELEGRAPH. 235 ing ruled that the occasion was privileged, surely it was a question for the jury. The doctrine of privilege is one that must be watched with great care, and we should be extending it to a very dangerous length indeed if we admitted this case to come within it. There was, therefore, abundant evidence of publication, and the question was properly left to the jurv. As to the question of excessive damages, the judge who tried the case is not dissatisfied, and we shall not disturb the verdict. Brett, J.: I reserved the point at the trial because I consider the question of law to be of immense importance, so far as the safety of people and their character is concerned. Where a communication is to be made to a relative or to some one where there might be an occasion of privilege, it seems to me of most serious importance that it could be said that, by rea- son of an act of parliament prohibiting the disclosure by tele- graph clerks of messages passing through the postofflce, the communication was not made to others, when in fact it was; that there was no publication to any one but the person affected by the privilege, whereas in fact there was. The safety of every one would be endangered, because the privilege might not arise; and it is really a question whether persons can have their character destroyed by unjust accusations among the postoffice people because of an act of parliament that has ref- erence to the duties of those officials. I think that sending a libelous statement by telegram might be evidence of malice if there were no necessity shown for telegraphing; but I was anxious that the question of malice should not enter into this consideration. I wished to put it higher, so that if the action of the defendant was lona fide, it might still be publication, because of the telegram. The same ruling has already been made in the case of post-cards, and I do not think that the leg- islature intended to increase the danger to persons of being libeled by affording increased facilities of intercommunication by post-cards and telegrams. Denman, J.: I am of the same opinion. I think we may as- sume, for the purposes of this case, that the communication was bona fide on the part of the defendant, and that it would have been privileged if sent by post. But the message was in itself undoubtedly injurious to the character of the plaintiff, 236 PUBLICATION OF DEFAMATOET MATTEE. and there was no duty cast on the defendant as to the tele- graph clerks, who must see what was in the message. Rule refused.' § 6. Publication to Third Persons Necessary. — Proof of the publication of defa:matory words is essential to the main- tenance of the action. Defamation consists in publishing words to the injury of a person's reputation ; and, as no such injury can be done when the defamatory words are uttered only to the person concerning whom they are spoken, no one else being present or within hearing, there can be-no publica- tion in the legal sense sufficient to maintain the action. It is damage done to character in the opinion of others, and not in the party's self-estimation. And in a civil action for libel, evi- dence that the defendant wrote and sent a sealed letter to the plaintiff containing defamatory matter was held insufficient proof of publication, although it would be otherwise in an in- dictment for a libel tending directly to provoke a breach of the peace. But the rule is held different where the letter is sent for the purpose of having it opened and read by a clerk; 2 and it has been held a sufficient publication to sustain the ac- tion if sent to the wife of the person libeled.' So it must be shown that the words were spoken in the presence of some one who understood them. If spoken in a foreign language which no one present understood, no action will lie.* § 7. Illustrations — Digest of American Cases. — 1. The words not being of a confidential character, it cannot be objected that speaking theoi by the husband in the presence of his wife did not amount to a publication, especially where it appears that other persons were near by who might have heard them. State v. Shoemaker (N. C), 8 S. E. Eep., 332. 2. Proof that a man conversed with his wife in a room in such a lone of voice that he could be heard outside the room is sufficient to raise a pre- 1 7 Chicago Legal News, 30; L. E., 79 Mass., 304; Edwards v. Wooton, 9C.P.,893;43L.J.,C.P.,161;22,W. 12 Co., 35; Hicks' Case, Pop., 139; R., 878; 30 L. T., 332. Phillips v. Jansen, 2 Esp. R., 624; 2 Delacroix v. Thevenot, 3 Stark., Syle v. Clason, 1 Caines, 581; Ham- 63- mond, N. P., 287; Waitsell v. Hol- sWriman v. Ash, 13 C. B., 836. man, 2 Had., 172; Fonville V. Nease, And see Christen v. Roggu, 67 Barb. ; Dudley (S. C), 303 ; Peacock v. Eey- Reine v. Ruff, 1 Iowa, 482. nail, 3 Browne, 151 ; Spaits v. Pound- * Sheffil et ux. v. Van Dusen et ux., stone, 87 lud., 522 ; 44 Am. Rep., 773. HUSBAND AND WIFE. 237 sumption that she heard and understood him, and overcomes the burden of proving that fact, which rests on the plaintiff in an action for slander. Ses- ler V. Montgomery (Cal.), ]9 Pac. Eep., 686. 3. Where it is shown that defendant accused plaintiff of perjury and want of chastity, in a room where his wife was, in a voice loud enough to be heard outside, there is sufficient evidence that she heard and understood the words. Communication by a husband to his wife of slanderous words in regard to a woman is a publication. Sesler v. Montgomery (Cal.), I'J Pac. Rep., 686. 4. Pending the prosecution of a criminal charge against A., the defend- ant wrote to A.'s father stating that he was reliably informed that the pros- ecuting attorney had been bribed to release A. on consideration of the father employing him on a contingent fee in a suit against the defendant. The letter was held to be a libel, and the publication sufficient in law. Young v. Clegg, 93 Ind., 371. 5. If I compose or copy a libel, and keep the manuscript in my study, in- tending to show it to no one, and it is stolen by a burglar and published by him, it is submitted that there is no publication by me, either in civil or criminal proceedings. Weir v, Hoss, 6 Ala., 881. . § 8. Digest of English Cases.— 1. Eev. Samuel Paine sent his servant to his study for a certain paper, which he wished to show to Brereton ; the servant by mistake brought a libelous epitaph on Queen Mary, which Paine inadvertently handed to Bre- reton, supposing it to be the paper for which he sent, and Brereton read it aloud to Dr. Hoyle. This would probably be deemed a publication by Paine to Brereton in a civil case (note to Mayne v. Fletcher, 4 Man. & Ry., 313), but would not be sufficient in a criminal case. R. v. Paine, 5 Mod., 167. 2. For in a criminal case it is essential that there should be a guilty in- tention. R. V. Lord Abingdon, 1 Esp., 328; Brett v. Watson, 30 W. R., 738; Blake v. Stevens, 4 F. & F., 232; 11 L. T., 543. 3. The defendant by mistake directed and posted a libelous letter to the plaintiff's employer instead of to the plaintiff himself. Held, a publication. Fox V. Broderick, 14 Ir. C. L. Rep., 453. And see Tompson v. Dashwood, 11 Q. B. D., 43; 53 L. J., Q. B., 435; 48 L. T., 943; 48 J. P., 55. § 9. Husband and Wife Sufficient Third Persons for Pub- lication. — Husband and wife are generally to be considered one person in actions of tort as well as of contract ;^ still the wife is sufBciently a third person to make a communication to her of words defamatory of her husband a publication in law.^ And it is submitted that a similar communication to the hus- band of a charge against his wife is a sufficient publication. The delivery of a libel by the author to his wife "in confi- dence" is privileged.' The fact that defendant's wife was 1 Phillips V, Barnet, 1 Q. B. D., 438. 17 Jurist, 579; Jones v. Williams, 1 aWenman v. Ash, 18 C. B., 836; Times L. R., 573. 22 L, J., C. P., 190; 1 C. L. R., 593; ' Trumbull v. Gibbons, 8 City Hall 238 PUBLICATION OF DBFAMATOET MATTEE. present on a privileged occasion, and heard what her husband said, would not take away the privilege so long as her presence, though unnecessary, was not improper.' § 10. A Libel — Deemed Published, when.— A libel is deemed to be published as soon as the manuscript has passed out of defendant's possession,^ unless it comes directly and un- read into the possession and control of the plaintiff. That some third person had the opportunity of reading it in the in- terval is not sufficient if the jury are satisfied that he did not in fact avail himself thereof, even though it is clear that the defendant desired and intended publication to such third per- son. § 11. Illustrations— Digest of American Cases. — Though the proprietor and printer of a paper are always held liable, the editor is, it would seem, allowed to plead as a defense that the libel was in- serted without his orders and against his will (The Commonwealth v. Knee- land, Thatcher's C. Q. , 346) ; or without any knowledge on his part that the article was a libel on any particular individual. Smith v. Ashley, 53 Mass. (11 Met.), 367. § 12. Digest of English Cases. — 1. A servant carries a libelous letter for his master, addressed to C. It is his duty not to read it. If he does read it that is a publication by his mas- ter to him, although he was never intended to read it. If after reading it he delivers it to C, then this is a publication by the servant to C, for which the person libeled, not being C, can sue either the master or the servant or both. If the servant never reads it, but simply delivers it as he was bidden, then he is not liable to any action, unless he either knew or ought to have known that he was being employed illegally. If he either knew or ought to have known, then it is no defense of him to plead ' I was only obeying orders," The defendant kept a pamphlet shop; she was sick and upstairs in bed ; a libel was brought into the shop without her knowledge, and sub- sequently sold by her servant on her account. She was held criminally liable for the act of her servant, on the ground that "the law presumes that the master is acquainted with what his servant does in the course of his business (R. v. Dodd, 2 Sess. Cas., 33; Nutt's Case, Fitzg., 47; 1 Bar- nard, 306) ; but later judges would not be so strict ; the sickness upstairs, if properly proved by the defendant, would now be held an excuse, Odgers on L, & S., 161 ; R. v. Almon, 5 Burr., 2686 ; E. v. Gutch, Fisher and Alex- ander, Moo, & Mai,, 433. 2, A rule was granted calling on Wiatt to show cause why he should not be attached for selling a book containing a libel on the court of king's bench. The book was in Latin. On filing an affidavit that he did not Recorder, 97; Jones v. Thomas, 84 1 Odgers on L. & S., 154. W. R„ 104; 53 L. T., 678; 50 J. P., 2R. v. Burdett, 4 B. & Aid., 143. 149. JOINT AND SEVERAL LIABILITY. 239 understand Latin, and on giving up the name of the printer from whom he obtained it, and the name of the author, the rule was discharged. E. v. Wiatt (1722), 8 Mod., 123. 3. The defendants were news venders on a large scale at the Eoyal Ex- change. In the ordinary course of their business they sold several copies of a newspaper called " Money," which contained a libel on the plaintiff. The jury found that the defendants did not, nor either of them, know that the newspapers at the time they sold them contained libels on the plaintiff ; that it was not by negligence on the defendants' part that they did not know there was any libel in the newspapers ; and that the defendants did not know that the newspaper was of such a character that it was likely to contain libelous matter, nor ought they to have known so. Seld, that de- fendants had not published the libel, but had only innocently disseminated it. Emmens v. Pottle & Spn (C. A.), 16 Q. B. D., 854; 55 L, J., Q. B., 51 ; 34 W. R., 116; 53 L. T., 808; 50 J. P., 228. 4. The plaintiff's agent, with a view to the action, called at the ofSce of the defendant's newspaper, and made them find for him a copy of the paper that had appeared seventeen years previously, and bought It. Held, that this was a fresh publication by the defendant, and that the action lay in spite of the statute of limitations. Duke of Brunswick v. Harmer, 14 Q. B., 185; 19 L. J., Q. B., 20; 14 Jur., 110; 3 C. & K., 10. 5. A porter who, in the course of business, delivers parcels containing libelous handbills is not liable in an action for libel, if shown to be igno- rant of the contents of the parcel, for he is but doing his duty in the ordi. nary way. Day v. Bream, 3 M. & Rob. , 54. § 13. Joint and Several Lialbility. — Every one who prints or publishes a libel may bo sued by the person defamed, and to such an action it is no defense that another wrote it; it is no defense that it was printed or published by the desire or procurement of another, whether that other be made a defend- ant to the action or not. All concerned in publishing the libel or in procuring it to be published are equally responsible with- the author. And printing the libel, or causing it to be printed, is prima facie evidence of publication.' If the libel appear in a newspaper, the proprietor, the editor, the printer and the publisher are liable, either separately or together. In all cases of joint publication each defendant is liable for all the ensuing damage. The proprietor of a paper sued jointly with his careless editor or with the actual composer of the libel can- not compel either of his co-defendants to repay him the dam- ages which he has been compelled to pay.^ iBurdett v. Abbot, 5 Dow. H. L,, ^Odgers on L. & S., 158; Colburn at p. 201; Baldwin v. Elphinston, 3 v. Patmore, 10., M. &E., 73; 4 Tyr., W, Bl., 1087. 677. ., -? 240 PUBLICATION OF DEFAMATOEY MATTER. § 14. The Composer Not Liable without Publication. — Composing a libel without publishing it is not actionable. But publishing it, not having composed it, is actionable. The mere delivery of a libel to a third person by one conscious of its con- tents amounts to a publication and is an indictable ofifense.' Lord Coke: " If one reads a libel, that is no publication of it; or if he hears it read it is no publication of it, for before he reads or hears it be cannot know it to be a libel; or if he hears or reads it, and laughs at it, it is no publication of it; or if he writes a copy of it, and does not publish it to others, it is no publication of the libel; but if after he has read or heard it, he repeats it, or any part of it, in the hearing of others, or after that he knpws it to be a libel he reads it to others, that is an unlawful publication of it." ^ § 15. The Law Stated by Best, C. J. — "If a man receives a letter with authority from the author to publish it, the person receiving it will not be justified, if it contains libelous matter, in inserting it in the newspapers. No authority from a third ])fcrson will defend a man against an action brought by a per- son who has suffered from an unlawful act. If the receivei; of a letter publish it without authority, he is, from his own motion, the wilful circulator of slander. If the person receiv- ing a libel may publish it at all, he may publish it in whatever manner he pleases; he may insert it in all the journals, and thus circulate the calumny through every region, of the globe. The effect of this is very different from that of the repetition of oral slander. In the latter case what has been said is known only to a few persons, and if the statement be untrue the im- putation cast upon any one may be got rid of; the report is not heard of beyond the circle in which all the parties are known, and the veracity of the accuser and the previous char- acter of the accused will be properly estimated. But if the report is to be spread over the world by means of the press the malignant falsehoods of the vilest of mankind, which would not receive the least credit where the author is known, would make an impression which it would require much time and I rouble to erase, and which it might be diflBcult if not im- possible ever completely to remove. Before he gave it gen- 1 Maloney v. Hartley, 8 Camp., 218. 2 John Lamb's Case, 9 Rep., 60. ILLUSTRATIONS DIGEST OF ENGLISH CASES. 2il eral notoriety by circulating it in print he should have been prepared to prove its truth to the letter; for he had no more right to take away the character of the plaintiff, without being able to prove the truth of the charge that he made against him, than to take his property without being able to justify the act by which he possessed himself of it. Indeed, if we re- flect on the degree of suffering occasioned by loss of character, and compare it with that occasioned by loss of property, the amount of the former injury far exceeds that of the latter." ' § 16. Illustrations — Digest of English Cases.— 1. A man may thus be guilty both of libel and of slander at the same moment and by the same act; as, by reading to a public meeting a defama- tory paper written by another. Hearne v. Stowell, 13 A. & E., 719 ; 6 Jur., 458; 4P. &D., 696. 2. Hudson brought the manuscript of a libelous song to Morgan to have one thousand copies printed ; Morgan printed one thousand and sent three hundred to Hudson's shop. Hudson gave several copies to a witness, who sung it about the streets. It did not appear in whose writing the manu- script was; but probably not in Hudson's. Held, that both Hudson and Morgan had publishe(^ the libel. Johnson v. Hudson and Morgan, 7 A. & E., 233, n. ; 1 H. & W., 680. 3. The proprietor of a newspaper is always liable for whatever appears in its columns, although the publication may have been made without his knowledge and in his absence. E. v. Walter, 3 Esp., 31; Storey v. Wal- lace, 11 111., 51; Scripps v. Reilly, 38 Mich., 10. So is the printer, though he had no knowledge of the contents. E. v. Bover, 6 How. St. Tr., 546; and see 3 Atkyns, at p. 473. So, in England, the acting editor is always held liable. Watts v. Fraser and another, 7 C. & P., 369; 7 Ad. & E., 238; 1 M. & Rob., 449; 3 N. & P., 157; 1 Jur., 671; W., W. & D., 451. 4. The proprietor of a newspaper is liable even for an advertisement in- serted and paid for by Bingham, although the plaintiff is bringing another action against Bingham at the same time. Hai-rison v. Pearce, 1 F. & F., 567; 33 L. T. (O. S.)., 398. a. "If you look upon the editor as a person who has published a libelous advertisement incautiously, of course he is liable." Per Pollock, C. B., in Keyzor and another v. Newcomb, IF. & F., 559. 6. If a country newspaper copy and publish a libelous article from a London newspaper, the country paper makes the article its own, and is lia- ble for all damages resulting from its publication in the country. The fact that it had previously appeared in the London paper is no defense ; it will not even tend to mitigate the damages. Talbutt v. Clark, 2 M. & Eob., 313; Saunders v. Mills, 3 M. & P., 530; 6 Bing., 313. 7. Evidence that the plaintiff had in a previous action recovered damages against the London paper for the same article is altogether inadmissible, as in that action damages were given only for the publication of the libel in I De Crespigney v. Wellesley, 5 Bing., 403; Odgers on L. & S,, 159. 16 242 PUBLICATION OF DEFAMATORY MATTEB. London. Creevy v. Carr, 7 C. & P., 64; Hunt v. Algar and others, 6 C. & P., 245. 8. " If I compose a libel and leave it in my desk among my papers and my clerk surreptitiously takes a copy and sends it to the newspapers, it is submitted that he alone is liable for the damage caused thereby. I am lia- ble only to such damages as the jury may award for the negligent though unintentional publication to my clerk. For although he could not have taken a copy had I not first written the libel, still the subsequent republi- cation of it is my clerk's own independent act, for the consequences of which he alone is liable. Secus, if I in any way encouraged or contrived his taking a copy, knowing that he would be sure to publish it in the news- papers." Odgers on L. & S., 160. § 17. Sale or Delivery of Libelous Compositions. — To sell or deliver to any one a libelous composition is to publish it; hence a news vender, whether he actually sells the libel himself personally or by his agent, and whether he is aware of the character of what he sells or not, may be proceeded against either civilly or criminally as the publisher of the libel which he vends.^ But this rule presumably refers mainly to the sell- ing or distribution of a libel whereon appears neither the name of the printer thereof nor that of a regular publisher, and the vender is either ignorant of who such persons are, or refuses to disclose their names, etc. At the same time it is of great importance in cases of newspapers and other journals, which, though circulated and sold, bear no evidence as to by whom they are printed and regularly published.^ § 18. Every Sale or Delivery a Separate Publication. — Every sale or delivery of a written or printed copy of a libel is a fresh publication; and every person who sells or gives away a written or printed copy of a libel may be made a defendant, unless, indeed, he can satisfy the jury that he was ignorant of the contents. The onus of proving this lies on the defendant; and where he has made a large profit by selling a great many copies of a libel, it will be very difficult' to persuade the jury that he was not aware of its libelous nature.' But if the paper was sold in the ordinary way of business by a news vender who neither wrote nor printed the libel, and who neither knew nor ought to have known that the paper he was so selling did contain or was likely to contai i any libelous matter, he will not be deemed to have published the libel which he thus inno- cently disseminated.* 1 Folkard on Libel, 425. s chub v. Flannagan , 6 C. & P. , 431. 2 Flood on L. & S., 46. 4 odgers on L. & S., 161. EESl'ONSIBIUTY OF AUTHOE. 243 § 19. The Author of a Slander is Not Responsible for Vol- untary and Unjustifiable Repetitions.— It is tpo well settled to be now questioned that one who utters a slander is not re- sponsible, either as on a distinct cause of action or by way of aggravation of damages of the original slander, for its volun- tary and unjustifiable repetition, without his authority or re- quest, by others over whom he has no control, and who thereby make themselves liable to the person slandered; and that such repetition cannot be considered in law a necessary, natural and probable consequence of the original slander. If there be two distinct and separate publications of the same libel, a de- fendant who was concerned in the first publication, but wholly unconnected with the second, would not be liable for any dam- ages which he could prove to have been the consequence of the second publication and in no way due to the first. Nor, on the other hand, should the fact that other actions have been brought for other publications of the same libel be taken into consideration by the jury in assessing the damage arising from the publication by the present defendant.' § 20. Publication — When by Agents^ etc. — Every one who requests, procures or commands another to publish a libel is answerable as though he published it himself. And such re- quest need not be expressed, but may be inferred from the defendant's conduct in sending his manuscript to the editor of a magazine, or making a statement to the reporter of a news- paper, with the knowledge that they will be sure to publish it, and without any effort to restrain their so doing. And it is not necessary that the defendant's communication be inserted verlaiim, so long as the sense and substance of it appear in print. This rule is of great value in cases where the words em- ployed are not actionable when spoken, but are so if written. Here, though the proprietor of the newspaper is of course lia- 'Harrisonv. Pearce, IF. &F.,567; Allen, 1 F. & F., 125; Dixon v. 32 L. T. (O. S.), 298; Tucker v. Law- Smith, 5 H. & N., 450; Parkins v. son, 2 Times L. E., 593; Hastings v. Scott, 1 H. & C, 153; Derry v. Hand- Stetson, 12 Lathrop (Mass.), 329; ley, 16 L. T. (N. 8.), 263; Stevens v. Ward V. Weeks, 4 Moore & Payne, Hartwell, 11 Met., 542, 550; Terwilli- 796; S. C, 7 Bing., 211; TunniclifiEe ger v. Wands, 17 N. Y., 54; Shurtleff V. Moss, 3 Car. & K., 88; Barnett v. v. Parker, 130 Mass., 293. 244 PUBLICATION OF DEFAMATOKY MATTBE. ble for printing them, still it is more satisfactor^v, if possible, to make the author of the scandal defendant. An action of slander will not lie ; but if he spoke the words under such cir- cumstances as would ensure their being printed, or if in any other way he requested or contrived their publication in the paper, he is liable in an action of libel as the actual pub- lisher. Qui facit per alium fdoit per se} § 21. Illustrations — Digest of American Cases.— 1. A newspaper reporter told defendant he should read defendant's state- ments to the paper for publication. Defendant replied: "Let them go.'' Held, that defendant had pubUshed them in the paper. Clay v. People, 86 111., 147. 2. The ticket agent having charge of the office, subject to the supervision of the general passenger agent, and one of the uses of the office being to advertise tickets and presumptively to furnish information in relation to purchasing tickets, and the libel being calculated to diminish the income of the broker and increase that of defendant, there is evidence that the publication v^as made by the agent in the course of the business of the com- pany, in vehich case the company would be liable though the act was in excess of his authority. Where a libelous article, indicating that a neigh- boring ticket broker is not reliable, is conspicuously posted forty days in the ticket office of a raihoad company, whose principal terminus and office are in the same city, and there is evidence that such office is used to publish general information of interest to purchasers of tickets, the jury may find that the company had knowledge of the character of the notices posted, and that the libel would not have remained posted so long had not the company authorized or ratified it; The refusal of the general passenger agent of the company to interfere with the publication a month before its discontinu- ance is evidence, in connection with the other evidence, of a ratification and of a publication by the company from thM time. Fogg v. Boston & L. R. Co. (Mass.), 20 N. E. Rep., 109. § 22. Digest of English Cases.— 1. Cooper told the editor several good stories against the Rev. J. K., and asked him, to " show Mr. K. up ; " and subsequently the editor published the substance of them in the newspaper, and Cooper read it and expressed' h/is approval. This was held a pubUcation by Cooper, although the editor knew of the facts from other quarters as well. R. v. Cooper, 15 L. J., Q. B. , 306;' 8 Q. B., 583; Adams v. Kelly, Ry. & Moo., 157. 2. At the meeting of the board of guardians, at which reporters were present, it was stated that the plaintiff had turned his daughter out of doors, and that she consequently had been admitted into the workhouse and had become chargeable to the parish. Ellis, one of the guardians, said : " I hope the local press will take notice of this very scandalous case," and requested the chairman, Prescott, to give an outline of it. This Prescott did, remarking: "I am glad gentlemen of the press are in the room, and I 1 Odgers on L. & S., 156. MANNER OF PUBLICATION AND DELIVEEY. 245 hope they will give publicity to the matter." Ellis added, "And so do I." From the notes taken in the room the reporters prepared a condensed ac- count, which appeared in the local newspapers, and which, though partly in the reporters' own language, was substantially a correct report of what took place at the meeting. Held, by the majority of the court of exchequer chamber (Montague Smith, Keating and Hannen, JJ., Byles and Mellor, JJ., dissenting), that Martin, B. , was wrong in directing the jury that there was no evidence to go to the jury that Presoott and Ellis had directed the publi- cation of the account which appeared in the papers. Parkes v. Prescott and Ellis, L. K., 4 Ex., 169; 38 L. J., Ex., 105; 17 W. R., 773; 30 L. T., 537. 3. If a manuscript in the handwriting of the defendant be sent to the printer or publisher of a magazine, who prints and publishes it, the defend- ant will be liable for the full damages caused by such publication, although there is no proof offered that he expressly dii-ected the printing and publish- ing of such manuscript. Bond v. Douglas, 7C. & P., 626; R. v. Lovett, 9 C. & P., 463; Burdett v. Abbot, 5 Dow, H. L., 301; 14 East, 1. And this is so although the editor has cut the article up, omitting the most libelous passages, and only publishing the remainder. Tarpley v. Blabey, 3 Bing. N. C, 437; 3 Scott, 643; 1 Hodges, 414; 7 C. & P., 395; Pierce v. Ellis, 6 Ir. C. L. R., 55. § 24. Manner of Publication. — A libel may also obviously be very effectually published by writing or fixing it up in a public place, as on a wall; and this would be a most offensive method of making it known, especially if the wall happened to be in a much frequented thoroughfare. Likewise the act of sending defamatory matter by a postoffice telegram is an un- authorized publication so far as to prevent a communication from being privileged, though made bona fide and under cir- cumstances which otherwise would have made it privileged.' The modes of publication — and the same may be said of the actual writing of libels — are infinite.^ § 25. Manner of Sale or Delivery Immaterial.— It makes no difference in law whether the libel is sold to the public or whether a copy is merely shown confidentially to a friend. Each is equally a publication. But the jury will, in estimating the damages, attach great importance to the mode of publica- tion; as an indiscriminate public sale must inflict much more serious injury on the plaintiff's reputation. The defendant could not afterwards recall or contradict his statements did he desire to do so.' 1 WiUiamson v. Freer, L. E., 9 C. 'Lord Denman, C. J., 9 A. & E., P., 393; 43 L. J., 161. 149. 2FlooHavemeyer v. Fuller, 10 Abb. (N. Y.) N. Cas., 9. KALSE PRETENSES. 251 pajing for it, the property of another is properly enough connected witli an innuendo that it meant defrauding or swindling such person out of his property, and is slanderous. Ayres v. Toulmin (Mich.), 41 N. W. Rep., 3. In an action for slander it was alleged that in conversations concern- ing the plaintiff and his acts as collector of customs in reference to the set- tlement of a claim in behalf of the United States against W., the defendant used these words: " G. [the plaintiff] had not accounted to the department for the sum paid by W. by some $33,000 ; " and also words substantially as follows: " That in the settlement of the alleged frauds by W., amounting to many hundreds of thousands of dollars, the amount paid by them was 1157,224; that only $135,224 was accounted for; . . . that it was not known what had been done with the balance. . . . And it was under- stood that this settlement was made through the intercession of S. and his partner, the late deputy collector ; that it was discreditable to the govern- ment to have it generally known that the sum of $157,234 was paid by W. in a settlement and that $32,000 of that sum was not accounted for." Held, on demurrer, that these words do not by their natural sense and meaning impute to the plaintiff any criminal offense, and are not action- able, although the plaintiff by innuendoes avers that they impute to himself the crimes of embezzlement and of receiving a bribe, and were so under- stood in the conversation alleged. Goodrich v. Hooper, 97 Mass., 1. 5. And so where an employee of a passenger railway company brought an action of libel against the company for posting up a notice that he " had been discharged for failing to ring up all fares collected," alleging in his petition that the meaning of the notice was that he was guilty of embezzle- ment, held, that as a failure to ring up fares might result from mere neg- lect, inefficiency, mistake or accident as well as dishonesty, the notice did not necessarily imply the fraud or dishonesty of plaintiff, nor did it import the commission of any crime, and that the opinions of witnesses as to their understanding of the meaning of the notice were not competent to aid the innuendo. Pittsburgh, A. & M. R'y Cto. v. McCurdy (Pa.), 8 Atl. Rep., 230. Digest of English Cases. — "He made a few hundreds in my service — God only knows whether honestly or otherwise," is a sufficient imputation of embezzlement. Clegg V. Laffer, 3 Moore & Sc, 727; 10 Bing., 350. § 10. False Pretenses — Digest of American Cases. — 1. Where the defendant charged the plaintiff with " bearing down " the scales when defendant's stock was weighed and " lifting up " when plaint- iff's stock was weighed, it was held not to charge the crime of obtaining goods under false pretenses, though it might be otherwise if it were charged that the plaintiff was the weightuaster having charge of the scales. Wilkin V. Thorp, 55 Iowa, 609; 8 N. W. Rep., 467. 2. But the words, "You had better go to Tom McW. and pay him back the twenty dollars you got from him by false pretenses,'' unexplained, im- pute a crime by general description identifying it to the common under- standing, as by a name which is sufficient and therefore implies malice. Lafollett V. McCarthy, 18 Brad. (III.), 87. 252 cp:rtainty of imputation. Digest of English Cases.— ' The words " He has defrauded a mealman of a roan horse," held not to imply a criminal act of fraud ; as it is not stated that the mealman was in- duced to part with his property by means of any false pretense. Richardson V. Allen, 2 Chit., 657; Needham v. Dowling, 15 L. J., C. P., 9. § 11. Forgery — Digest of American Cases. — 1. The following words have been held a sufficient charge of forgery: " You are guilty of forgery. You are guilty of absolute forgery." Jarvis V. Hatheway, 3 Johns. (N. Y.), 180. 2. In an action for slander the charge of forgery does not necessarily and exclusively mean a felonious forgery, punishable as such. If the plaintifiE is charged with having been guilty of any forgery which if committed would subject him to criminal punishment of any description, the action lies. Thus, where the words complained of were, " My brother John has forged my name, and I can put him in state prison," and from the explanation of the witnesses it appeared that the defendant charged the plaintiff with forging his name to a petition to the legislature in relation to a lot of land to which the defendant claimed a prescriptive right, by means of which the plaintiff, instead of the defendant, obtained the lot, it was held that an action of slander might be maintained for the speaking of the words ; for if the charge were true the plaintiff would be punishable as for a misdemeanor. Alexander v. Alexander, 9 Wend. (N. Y.). 141. 3. Words cliarging a party with false swearing in an affidavit made to obtain a warrant from a justice are actionable if the aflSdavit contain any material fact proper to be submitted to the justice on such application, al- though on certiorari the affidavit would not be held sufficient to justify the issuing of the warrant. Dayton v. Rockwell, 11 Wend. (N. Y.), 140. i. But it has been held not actionable where a person called on for the payment of a note, alleged to have been signed by him as a surety, said : " I never signed the note that was given to Fancher, or saw the note, in God's world. I never signed a note with Thomas Andrews that was given to Fancher in .God's world." Andrews v. Woodmansee, 15 Wend. (N. Y.), 232. . Digest of English Cases. — " This is a counterfeit warrant made by Mr. Stone." Stone v. Smal- combe, Cro. Jac, 648. " Thou hast forged a privy seal, and a commission." Per cur. : " ' A commission ' shall be intended the king's commission, under the privy seal." Baal v. Baggerley, Cro. Car., 326. "You forged my name," although it is not stated to what deed or instrument. Jones v. Heme, 2 Wils., 87; overruling Anon., 3 Leon., 831 ; 1 Roll. Abr., 65. § 12. Larceny —Digest of American Cases.— 1. The following words are a sufficient imputation of the charge of lar- ceny : " You have been cropped for felony." Wiley v. Campbell, 5 Monroe (19 Ky.), 396. 2. " Dr. K. was imprisoned many years in a penitentiary in Germany for larceny." Krebs v. Oliver, 78 Mass., 239. 8. "My watch has been stolen and I have reason to bolieve T. took it." Miller v. Miller, 8 John. (N. Y.), 77. MUEDEE. 253 4. "You will steal and I can prove it." Cornelius v. Van Slyck, 31 Wend. (N. Y.), 70. 5. The words charged were, " Old C. is a hog-thlef ; I have been keeping him in hog meat for twenty yeai-s; he has always kept a set of thieves and liars about him to steal for him, and swear for him ; they will swear a naan to hell." Held, that the allegations as to keeping C. in meat, and as to swearing a man to hell, and as to C.'s keeping liars to swear for him, were not actionable ; otherwise those as to C.'s being a thief and keeping thieves to steal for him. Porter v. Choen, 60 Ind., 338. 6. Where it is apparent that the defendant intended to charge the plaint- iff with stealing, and that the charge was so understood by those who heard it, an action of slander is maintainable, without regard to whether, technically, the plaintiff's act was a theft or trespass. Wjlson v. McCr6ry, 86 Ind., 170. 7; Where plaintiff was spoken of in company, defendant broke out thus: " He is the best hand to steal sheep I ever saw ; he stole A.'s sheep." Seld to support an action of slander. Harman v. Cundiff, 83 Va., 339. 8. But it is not actionable to say: "You as good as stole the canoe" (Stokes v. Arey, 8 Jones, 46); or, " A man that would do that would steal," Stees v. Kemble, 37 Penn. St., 113.- Digest of English Cases. — 1. " Thou hast stolen our bees, and thou art a thief." After verdict it was contended that larceny cannot be committed of bees, unless they be hived; but the court held that the subsequent words, "thou art a thief," showed that the larceny imputed was of such bees as could be stolen. Tibbs v. Smith, 3 Salk., 335; Sir Thos. Raym., 83; Minors v. Leeford, Cro. Jac, 114. 2. "Thou art a corn-stealer " held sufficient. Anon. (1597), Cro. Eliz., 563; Smith v. Ward, (1634), Cro. Jac, 674. So a charge of being "privy and consenting to " a larceny is actionable. Mot et ux. v. Butler, Cro. Car., 336. 3. " He is a pickpocket; he picked my pocket of my money," was once held an insufficient charge of larceny. Watts v. Rymes, 3 Lev., 51; 1 Ventr., 313; 3 Salk., 335. But now this would clearly be held sufficient. Baker v. Pierce, supra; 2 Ld. Eaym., 959 ; Stebbing v. Warner, 11 Mod., 355. i. " He was put into the round-house for stealing ducks at Crowland." Beavor v. Hides, 3 Wilson, 300. 5. " Baker stole my box-wood, and I *ill prove it." It was argued that it did not appear from the words that the box- wood was not growing; and that to cut down and remove growing timber is a trespass only, not a lar- ceny. But the court gave judgment for the plaintiff, holding that ex vi termini steaUng "did import felony." Baker v. Pierce, 6 Mod., 33; 3 Salk., 695; Holt, 645; overruUrig Mason v. Thompson, Hutt., 38. 6. Gybbons asked May: " Have you brought home the forty pounds you stole?" Held, that an action lay. May v. Gybbons, Cro. Jac, 568. § 13. Mnrder — Digest of American Cases.— 1. The words, " She is slow poisoning her husband," are capable of being understood as charging the giving of poison with intent to kill. Campbell v. Campbell, 54 Wis., 90; 11 N. W. Rep., 456. 254 CERTAINTY OF IMPUTATION. 2. A declaration in slander setting forth no extrinsic explanatory cir- cumstances, but charging defendant with the use, in reference to plaintiff, of the words, "He killed her by his bad conduct, and I think he knows more about her being drowned than anybody else," is bad on demurrer; the words themselves, taken in their natural sense, importing no charge of criminal homicide. Thomas v. Blasdale (Mass.), 18 N. E. Rep., 314. 3. A demurrer to a declaration for slander, setting forth the use of the following words by defendant in reference to plaintiff: " He knows how she came to her death. He killed her. He is to blame for her death. There was foul play there," without averments of any explanatory circumstances, should be overruled, since the words used impute a crime to plaintiff. Thomas v. Blasdale (I^ass.), 18 N. E. Rep., 214. Digest of English Cases. — 1. "Thou hast killed thy master's cook." Cooper v. Smith, Cro. Jac, 423; IRoU. Abr., 77, 2. "I am thoroughly convinced that you are guilty of the death of Daniel Dolly, and rather than you should want a hangman, I will be your execu- tioner." Peake v. Oldham, Cowp., 375; 2 Wm. Bl., 959. 3. But it is not sufficient to say, "_Hext seeks my life." "Because he may seek his life lawfully upon just cause." Hext v. Yeomans, 4 Rep., 15. 4. " He was the cause of the death of Dowland's child," because a man might innocently cause the death of another by accident or misfortune. Miller v. Buckdon, 2 Buls., 10. 5. " Thou wouldst have killed me," for here a murderous intention only is imputed. Dr. Poe's Case, 1 Vin. Abr., 440, cited in S Buls., 206. § 14. Perjury at Common law — Digest of American Cases. — 1. In an action for saying " You have perjured yourself," it is enough to prove the words were spoken, and that they referred to the plaintiff. Green V. Long, 3 Caines' Rep. (N. Y.), 91. 2. Plaintiff had recently given evidence in an action against defendant, who thereupon wrote and published dt him : " The man at the sign of the Bible is no slouch at swearing to an old story." Held, that if these words did not amount to a charge of actual perjury, they at least imputed that he swore with levity without due regard to the solemnity of an oath; and therefore, being written, were actionable. Steele v. Southwicke, 9 Johns. (N. Y.), 214. 3. The words, " He has sworn falsely in a lawsuit between me and my brother," are not actionable in themselves, as they do not necessarily imply that the false testimony was given wilfully, and therefore do not neces- sarily amount to an imputation of the crime of perjury. Schmidt v. With- wick, 39 Minn., 156; 13 N. W. Rep., 448. 4. The general doctrine seems to be that to say that a man swore falsely IS not actionable in itself, unless coupled with some other words which imply that he did so wilfully and that he did so under an oath legaUy im- posed. Id. *" ■' 5. A direct charge of perjury is actionable per sc; but the words "he made false affidavits in order to commence his case," or "the affidavit made by Mr. C. waa false," are not necessarily actionable in themselves; PERJURY. 255 nor can an action be maintained upon these merely by an innuendo that they were intended to import perjury. Cassellman v. Windahip (Dak.), 19 N. W. Rep., 413. 6. So, too, " He is a damned liar; he took a false oath, and I can prove it." Sibley v. Marsh, 34 Mass., 38. 7. " You swore to a lie last spring in that case about the poor- house farm, and I can prove it." Foster, J. ; " This language would seem to be in itself actionable as amounting to an accusation of the crime of per- jury, without the aid of any colloquia or averments of extrinsic facts in explanation of the circumstances under which it was uttered. In such a case the materiality of the false testimony with which the party is charged may well be presumed in the absence of anything to show that it was known or understood to relate to an immaterial matter at the time by those in whose presence the accusation was made. Wood v. Southwick, 97 Mass., 354; Butterfield v. Bufifam, 9 N. H., 156. 8. To say, "You have sworn to a lie, and I will prove it," is not action- able. Hopkins v. Budle, 1 Caines' Eep., 349. But to say, "He has sworn false and perjured himself, and I will put him into the state prison," is ac- tionable. Fox V. Vanderbeck, 5 Cow. (N. Y.), 518. 9. Where one interrupted another who was giving his testimony as a witness before the justice, required the justice to be particular in keeping minutes of the testimony, and afterwards demanded the minutes of the jus- tice, and said he wanted them to prosecute the witness for perjury ; and on another occasion said the witness swore falsely or to what was not true, and that he thought he should prosecute him for perjury, held, that these words were actionable as imputing the crime of perjury. Fox v. Vander- beck, 5 Cow. (N. Y.), 513. 10. Perjury imputed to a person testifying as a witness in a proceeding to test the sanity of a person alleged to be insane is actionable. Hutts v. Hutts, 63 Ind., 314. 11. It is not slander in Kentucky to charge that one has falsely taken an oath prescribed by an unconstitutional and void act of the legislature. Burket v. McCarty, 10 Bush (Ky.), 758. 12. The words, "He has perjured himself; he swore lies before the court at Madison, according to the church book," ai-e actionable in themselves. Brown v. Hanson, 53 Ga., 633. 13. And so are the words "Peter Smith has told lies and sworn to them." Smith V. Wright, 55 Ga., 318. 14. Where perjury is charged in an alleged libel it is for the jury to de- termine, by a scrutiny of the whole publication, whether the word was used by the defendant in a popular sense or as charging the technical crime of perjury. Hawkins v. N. O. Printing Co., 29 La. Ann., 134. Under Statutes. 1. Under the Massachusetts practice act a declaration in slander is suffi- cient which alleges that the defendant published falsely and maliciously charged the plaintiflE of the crime of perjury, by words spoken of the plaint- iff, substantially as follows: " He has been to New Bedford and sworn to a pack of darned lies ; " and that the plaintiff, at a certain term of court held 256 CEETAINTY OF IMP DTATION. at New Bedford, was summoned and attended as a witness in the case of a certain libel for divorce, and did before a certain judge of said court testify as a witness under oath, and that it is to that subject that the defendant's malicious declarations refer. Gardner v. Dyer, 5 Gray (71 Mass.), 33. Digest of English Cases. — 1. To say they "did not scruple to turn afiSdavit-men '' is sufficient. Roach V. Garvan, Be Read & H^ggon8oh (1743), 3 Atk., 469; 3 Dick., 794. "Thou art forsworn in a court of record, and that I will prove," was lield sufficient, though it was argued after verdict that he might only have been talking in the court-house and so forsworn himself; but the court held that the words would naturally mean forsworn while giving evidence in some judicial proceeding in a court of record. Ceely v. Hoskins, Cro. Car., 509. 2. But to say "You are forsworn," without more, is insufficient. Stan- hope v. Blith (1585), 4 Rep., 15; Holt v. Scholefield, 6 T. R., 691; Hall v. Weedon, 8 D. & R., 140. § 15. Receiving Stolen Goods — Digest of English Cases.— 1. To say, " I have been robbed of three dozen winches; you bought two, one at 3s., one at 3s. ; you knew well when you bought them that they cost me three times as much making as you gave for them, and that they could not have been honestly come by," is a sufficient charge of receiving stolen goods, knowing them to have been stolen. An indictment which merely alleges that the prisoner knew the goods were not honestly come by would be bad. R. v. Wilson, 2 Mood. C. C, 53; Alfred v. Farlow, 8 Q. B., 854; 15 L. J., Q. B., 258; 10 Jur., 714; Clarke's Case de Dorchester, 3 Rolle's Rep., 136; King v. Bagg, Cro. Jac, 331. § 16. Treason — Digest of English Cases.— 1. The following words have been held in England sufficiently definite to impute a charge of treason', or at least of sedition, and therefore action- able: "Thou art an enemy to the state." Charter v. Peter, Cro. Eliz., 602. 2. " He has the pretender's picture in his room, and I saw him drink his health. And he said he had a right to the crown." Fry v. Carne (1734), 8 Mod., 383; How v. Priu (1702), Holt, 653; 7 Mod., 107; 3 Ld. Raym., 813; 3 Salk., 694; 1 Brown, P. C, 64. 3. "Thou hast made a seditious sermon and moved the people to sedition this day." Phillips (D. B.) v. Badby, 1583, cited 4 Rep., 19. 4. "Thy master is no true subject." Waldegrave v. Agas, Cro. Eliz., 191; 1 Roll. Abr., 75; sed gucere, Fowler v. Ashton, Cro. Eliz., 368: 1 Roll. Abr., 43. 5. "Thou hast committed treason beyond the seas;" for there is a vio- lent mtendment that he committed treason to the state here, and not to a foreign state. Lewis v. Coke, Cro. Jac, 434. 6. "He consented to the late rebels in the north." Stapletonv. Frier. Cro. Eliz., 251. 7. "Thou art a rebel, and all that keep thee company are rebels, and Ate ^49 '^"^^'''' ^"^'"'■" ^^^'*°° ^- ^"°'' ^'°- ^"==- ^^'' 1 ^°"- § 17. Second, the Person Who is Defamed Must he Cer- tain.- The defamatory words must refer to some ascertained WORDS -APPLYING TO A CLASS, ElO. 257 or ascertainable person, and that person must be the plaintiff. If the words used really contain no reflection on any particu- lar individual, no averment or innuendo can make them de- famatory. "An innuendo cannot make the person certain which was uncertain before." § 18. Illustrations — Digest of American Cases.— In an action for libel for a grand jury's report , where the only evidence to show that plaintiff was one of the majority of the board therein referred to is an indictment brought in by the grand jury at the same time against the plaintiff and other members of the board, charging them and other per- sons with having combined to obstruct the laws and to remove a chief of police, it is not sufficient evidence to show that he was the person intended by the grand jury's report, which alleged corruption on the part of the ma- jority of such board, but in which the removal of the chief of police is but incidentally mentioned. Caruth v. Richeson (Mo.), 9 S. W. Bep., 633. §19. Digest Of English Cases.— 1. The defendant in a speech commented severely on the discipline of the Roman Catholic church and the degrading punishments imposed on peni- tents. He read from a paper an account given by three policemen of the severe penance imposed on a poor Irishman. It appeared incidentally from this report that the Irishman had told the policemen that his priest would not administer the sacrament to him till the penance was performed. The plaintiff averred that he was the Irishman's priest, but it did not appear how enjoining such a penance on an Irishman would affect the character of a Roman Catholic ]-riest. The alleged libel was in no other way con- nected with the plaintiff. Held, no libel and no slander of the plaintiff. Hearne v; Stowell, 13 A. & E., 719; 6 Jur., 458; 4 P. & D., 696. 2. "If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individ- ual." Per Wiles, J., in Eastwood v. Holmes, 1 F. & F., 349. 3. To assert that an acceptance is a forgery is no libel on the drawer un- less it someliow appear that it was he who was charged with forging it. Stoctley V. Clement, 4 Bing., 163; 13 Moore, 876. 4. " Suppose the words to be ' a murder was committed in A.'s house last night ; ' no introduction can warrant the innuendo ' meaning that B. com- mitted the said murder ; ' nor would it be helped by the finding of the jury for the plaintiff. For the court must see that the words do not and cannot mean it, and would arrest the judgment accordingly. Id oe.rtum est, quod certum reddi potest." Soloman v. Lawson, 8 Q. B., 837; 15 L. J., Q. B., 257; 10 Jur., 796. § 20. Words Applying to a Class, etc.— Though the words used may at first sight appear only to apply to a class of in- dividuals, and not to be specially defamatory of any particular member of that class, still an action may be maintained by any one individual of that class who can satisfy the court that the words referred especially to himself, but the words must 17 258 CEETAINTT OF IMPDTATION. be capable of bearing such special application. There must be an averment in the statement of claim that the words were spoken of the plaintiff, and the plaintiff may also aver extra- neous facts, if any, showing that he was the person expressly referred to.* § 21. The Rule Stated by Chief Justice Shaw.— It is un- cloabtedly a correct principle of law that, where defamatory matter is published against a class or aggregate body of per- sons, an individual member not specially included or desig- nated cannot maintain an action, for this, among other reasons that the body may act very corruptly or disgracefully, and yet the individual may have been in the minority and may have opposed measures alluded to; but where many individuals are severally included in the same attack, whether by the language of the satirist or the pencil of the caricaturist, the plaintiff is none the less entitled to redress because others are injured by the same act.^ § 2-2. Illustrations — Digest of American Cases.— 1. When the declaration in slander stated that B., in a certain discourse 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, B. said: "Your children are thieves, and I can prove it, " it was held that the charge was sufficiently definite to designate the plaintiff as one of the children of G., intended by B. Gidney v. Blakes, 11 Johns. (N. Y,), 54. 2. An action for a libel may be sustained by an individual for an injury to his business resulting from a libelous publication, although it affects the business of others engaged in the same calling as well as his own, unless it be manifest upon the face of the publication that the charges made were intended against a class of society, a particular profession, an order or body of men, and cannot possibly import a personal application tending to pri- vate injury. Ryckman v. Delavau, 25 Wend., 186. 3. A declaration is bad charging the defendant with saying to the father of the plaintiff : " You have brought up your sons to break open let- ters and steal money out of them ; they have broken open letters, and stolen money out of them,'' if there be no colloquium averred of and concerning the plaintiff, or the sons of the persons addressed, although it be stated in the antecedent part of the declaration that the plaintiff is a son of the per- son addressed. Mulligan v. Thorn, 6 Wend., 413. 4. An action may be supported for a libel in which the plaintiff was de- scribed directly or indirectly, though his name was not given. Thus, one may bring an action for a libel on " A, and his friend," and show that the iByerv. Fireman's Journal Co., 11 Gidney v. Blake, 11 Johns. (N. Y.), Daly (N. Y.), 357. 54; Foxcroft v. Lacey, Hob., 89; 2 Ellis V. Kimball, 33 Mass., 133; Ryckman v. Delevan, 25 Wend., 186. APPLICABLE TO DIFFERENT PERSONS. 259 words "his friend" meant the plaintiff. Clark v. Creitzburg, 4 McCord (S. C), 491. 5. 'A publication which, without naming any one, so refers to certain persons that it is clear that they are referred to, may be libelous as to them, Byer v. Fireman's Journal Co., 11 Daly (N. Y.), 857. 6. Where a publication affects a class of persons, no individuals of that class can sustain an action for the publication. White v. Delavan, 17 Wend. (N. Y.), 49. But see Ryckman v. Delavan, 25 id., 186. 7. Where several are included in the same libel they may each maintain a separate action for the injury. Smart v. Blanchard, 43 N. H,, 137. § 23. Digest of English Cases.— 1. A suit was pending against the plaintiff and sixteen other persons. In a discourse concerning the suit the defendant said • " These defendants helped to mux-der H. F." It was adjudged that each of the seventeen de- fendants was entitled to have his separate action of slander. Foxcroft v. Lacy, Hob., 89. 2. A colloquium is sufiBcient to give application to the words, " One of the servants of I. S. is a thief." 4 Coke's Reports, 17, b. § 24. Defamatory Words Applicable to Different Persons. — If the words spoken or written, though plain in themselvesi apply equally well to more persons than one, evidence may be given both of the cause and occasion of publication, and of all the surrounding circumstances affecting the relation between the parties, and also of any subsequent article referring to the former one or of any statement or declaration made by the defendant as to the person referred to.' The plaintiff may also call at the trial persons acquainted with the circumstances to state that on reading the libel the}'' at once concluded that it was aimed at the plaintiff.^ If the application to a particu- lar individual can be generally perceived the publication is a libel on him, however general its language may be. The rule stated hy Lord Oamphell: " Whether a man is called by one name or whether he is called by another, or whether he is described by a pretended description of a class to which he is known to belong, if those who look on know well who is aimed at, the very same injury is inflicted, the very same thing is in fact done, as would be done if his name and Christian name were ten times repeated." ' §26. Effigies, Pictures and Caricatures.— Where a libel consists of an effigy, picture or caricature, care should be taken iBarwell v. Adkins, 1 M. & Gr., SBourke v. Warren, 3 C. & P,, 307: 807; 3 Scott, N. R., 11; Knapp v. Broome v. Gosden, 1 C. B., 738. Fuller, 55 Vermont, 311; 45 Amer. SQdgers on L. & S., 130; Le Fanu E.J 618. . V. Malcolmson, 1 H. L. C, 668. 200 CERTAINTY OF IMPUTATION. to show by proper innuendoes and averments the libelous nat- ure of the representation and its especial reference to the plaintifif. The plaintiff must prove that he is the person cari- catured. A man may be as successfully exposed to ridicule by a cari- cature painting as by any written misrepresentation ; and the object of the defendant may be as clearly manifested in the latter case as the former. The difficulty, indeed, of proving the plaintiff to be the person aimed at may, in some instances, be greater in the latter case; but when the doubt as to the de- fendant's application of the calumny has been overcome, there seems to be no room for further distinction. The pencil of the caricaturist is frequently an instrument of ridicule more powerful than the press ; and it is not easy to conceive an imputation which an ingenious artist would not be able successfully to communicate to minds of even the mean- est capacity. A man may be as effectually held up as the object of ridicule, contempt or hatred by means of a picture as by the most labored form of words. In legal consideration, the only question is whether the mode of defamation which has been adopted be capable of conveying that meaning which is detrimental to the plaintiff. If, in fact, such modes be equally distributable and equally durable — in short, equally mischiev- ous in every respect — they cannot be considered as distinguish- able, for legal purposes upon any principle of reason and good sense; and no such distinction is to be found in the reports.' It was expressly held by Holt, C. J., that " In case upon libel it is sufficient if the matter be reflecting ; as to paint a man in any disgraceful situation." ^ § 26. Illustrations — Digest of American Gases. — (1) Libel. 1. Defendant wrote and published of plaintiff, a bookseller: " The man at the sign of the Bible is no slouch at swearing to an old story.'' The sign over plaintiff's shop was a book, lettered ." Bible," and he had recently given evidence against defendant in another action. Held, that he could recover. Steele v. Southwick, 9 Johns. (N. Y.), 214. 2. The defendant wrote and published that his hat had been stolen by, some of the members of No. 13 Hose Company. This hose company was a volunteer Are brigade, unincorporated, and the members brought a joint 1 1 Starkie on Slander, 171. P. C. ch. 73, § 2; 5 Co., 125; Skin- »11 Mod., 99. See, also, 2 Hawk., ner, 123; 8Keb., 878. ILLTJSTEATIONS SLANDEE — LIBEL. 261 action. Held, that the action could not be maintained, and that the de- fendant could not be compelled to declare to which individual member he referred. Girand v. Beach, 3 E. D. Smith (N. Y.), 337. (2) Slander. 1. To say, " I have seen women steal yarn before," may amount to a charge of larceny against some particular woman now ; provided there be proper averments in the pleadings and sufficient evidence of the surround- ing circumstances at the trial. Hart v. Coy, 40 Ind., 553. 2. But to say of the plaintiff in an action for slander, " He or some one else altered the credit on a note from a lai-ger to a less sum ; the note will show for itself," is not actionable, as the charge is not positive, but in tlie disjunctive ; and for aught that appears he may have altered the credit on his own note, and violated no law in doing it. Ingalls v. Allen, Breese Rep. (Dl.), 233. 3. At an election held in Wisconsin, Hayes charged one Ellsworth, who was chairman of the board of election inspectors, with miscounting votes. The language used was as follows: " He counted four of the votes which were cast for Estes [the republican candidate for sheriff] for Barry [the democratic candidate] for sheriff." Several persons, hearing the statement, remarked that they did not believe that Ellsworth was that kind of a man. Hayes further stated, " It is true. There is no doubt of it. There was a man standing, looking right over Mr. Ellsworth's shoulder, and saw him do it. It is a swindle." In an action brought by Ellsworth for slander it was held the language might be construed as charging the plaintiff with fraud- ulently counting votes, and it was proper to admit evidence to prove the meaning intended. Ellsworth v. Hayes, 71 Wis., 427; 37 N. W. Rep., 249. § 27. Digest of English Cases.—- (1) Libel. 1. A newspaper article imputed that "in some of the Irish factories cru- elties were practiced upon the work-people. Innuendo, "in the factory of the plaintiffs," who were manufacturers. The jury were satisfied that the newspaper was referring especially to the plaintiffs' factory, and found a verdict for the plaintiffs, and the house of lords held the declaration good. Le Fanu v. Malcolmson, 1 H. L. C, 637; 13 L. T. (O. S.), 61; 8 Ir. L. R., 418. 2. Plaintiff had been in defendant's employment as agardener, and was dismissed by him and entered Mr. Pierce's service. Defendant wrote to Mr. Pierce that he had dismissed plaintiff for dishonesty, adding, "I have rea- son to suppose that many of the flowers of which I have been robbed are growing upon your premises." An innuendo, "thereby meaning that the plaintiff was guilty of larceny, and had stolen defendant's flowers and had disposed of them unlawfully to Mr. Pierce," etc., was held good. Williams V. Gardiner, 1 M, & W., 245; 1 Tyr. & Gr., 578; 2 C, M. & R., 78. 3. If asterisks be put instead of the name of the party libeled, it is suffi- cient that those who know the plaintiff should be able to gather from the libel that he is the person meant. It is not necessary that all the world 2G2 CEKTAINTY OF IMPUTATION. should understand it, so long as the meaning of the paragraph is clear to the plaintiflE's acquaintances. Bourke v. Warren, 2 C. & P., 307. . 4. Some libelous verses were written about " L y, tl>e Bum." The court was satisfied, in spite of the finding of the jury, that the words re- lated to the plaintiff, a sheriff's officer. Levi v. Milne, 4 Bing., 195 ; 13 Moore, 418. 6. " All the libelers of the kingdom know now that printing',initial letters will not serve the turn, for that objectipn has been long got over." Per Lord Hardwicke in Roach v. Garvan, 2 Atk., 470; 2 Dick., 794. 6. A libel was published on a "diabolical character," who, "like Poly- phemus, the man-eater, has but one eye, and is well known to all persons acquainted with the name of a certain noble circumnavigator." The plaint- iff had but one eye, and his name was I'Anson ; so it was clear that he was the person referred to. I'Anson v. Stuart, 1 T. E., 748 ; 2 Smith's L. Cas. (6th ed.), 57 (omitted in the 7th and 8th eds.); Fleetwood v. Curl, Oro. Jac, 557; Hob., 268. 7. In a recent case the libel did not name the person alluded to, but de- scribed him " as a man of high descent, ■who has been regarded as a man not only of refined tastes and studious habits, but as an artist of somewhat more than ordinary ability." The relator swore that he believed that the libel was intended to refer to himself. The Duke of Sutherland and others of his friends considered that it would be generally understood as applying to him, and a rule was granted. But upon the argument of the rule the publisher and the author of the libel both swore positively that the relator was not the person referred to, and that they were not in fact aware that he was either a man of refined tastes and studious habits or an artist of somewhat more than ordinary ability. And the rule was therefore dis- charged. E. V. Barnard, 43 J. P., 127. 8. There appeared in " Mist's Weekly Journal" an account prof essedly of certain intrigues, etc., at the Persian court, really at the English. The late King George I. was described under the name of " Merewits," George II. appeared as " Esreff," the queen as " Sultana," while a most engaging por- trait was drawn of the pretender under the name of "Sophi." It was ob- jected on behalf of the prisoner that there was no evidence that the author intended his seemingly harmless tale to be thus interpreted and applied; but the court held that they must give it the same meaning as the general- ity of readers would undoubtedly put upon it. E. v. Clerk, 1 Barnard, 804. (2) Slander. 1. Words complained of : " We would exhort the medical officers to avoid the traps set for them by desperate adventurers [innuendo, thereby meaning the plaintiff among others], who, participating in their efforts, would inevi- tably cover them with ridicule and disrepute." The jury found that the words were intended to apply to the plaintiff. Judgment accordingly for the plaintiff. Wakley v. Healey, 7 C. B., 591 ; 18 L. J., C. P., 241. 2. " There is strong reason for believing that a considerable sum of money was transferred by power of attorney obtained by undue influence;" an mnuendo " meaning as a fact that the plaintiff had by undue influence procured the money to be transferred" was held not too wide, for such INDIEEOr DEFAMATION. 263 would be the meaning conveyed to readers by the defendant's insinuationa. Turner v. Mery weather, 7 C. B., 251; 18 L. J., C. P., 155; 13 Jur., 683; 19 L. J., C. P.. 10. 3. Where plaintifif s house had been insured and burnt down, and the in- surance company at first demurred to pay, but ultimately did pay, the in- surance money, and defendant subsequently, in the course of a quarrel with the plaintiff, said, in the presence of others. " I never set my prem- ises on fire," and "I was never accused of setting my premises on fire," this was held to be a slander on the plaintiff. Cutler v. Cutler, 10 J. P., 169: Snell v. Webling, 2 Lev., 150; Clerk v. Dyer, 8 Mod., 290. i. " His name was O'B." (meaning thereby the plaintiff). This was held sufficient in O'Brien v. Clement, 16 M. & W., 1.59; 16 L. J., Ex., 77. 5. If a man says " my brother " or " my enemy " is perjured, and hath only one brother or one enemy, such brother or enemy can sue; but if he says, " One of my brothers is perjured," and he hath several brothers, no one of them can sue (without special circumstances to show to which one he referred). Jones v. Davers, Cro. Eliz., 497; 1 Roll. Abr., 74; Wiseman V. Wiseman, Cro. Jac, 107. 6. But where seventeen men were indicted for conspiracy, and A. said, " These defendants are those that helped to murder Henry Farrer," each one of the defendants can bring a separate action, as much as if they each had been specially named. Foxcroft v. Lacy, Hobart, 89; 1 Roll. Abr., 75. So if a man says to a plaintiff's servant, " Thy master Brown hath robbed me," Brown can sue; for it shall not be intended that the person addressed had more than one master of the name of Brown. So if the defendant had said, "Thy master,'' simplidter; or to a son, "Thy father;" to a wife, "Thy husband." Per Haughton, J., in Lewes v. Walter, 3 Bulstr., 226 ;\ Brown v. Low or Lane, Cro. Jac, 443; 1 Roll. Abr., 79; Waldegrave v. Agas, Cro. Eliz., 191. 7. But if the defendant said to a master, "One of thy servants hath robbed me," in the absence of special circumstances no one could sue ; for it is not apparent who is the person slandered. James v. Rutlech, 4 Rep., 17. So where a party in a cause said to three men who had just given evidence against him, " One of you three is perjured," no action lies. Sir John Bourn's Case, cited Cro. Eliz., 497. 8. Where the defendant said to his companion B., " He that goeth before thee is perjured," the plaintiff can sue if he aver and prove that he was the person who was at that moment walking before B. Aish v, Gerish, 1 Roll. Abr., 81. 9. A. said to B., " One of us two is perjured," B. answered, "It is not I," and a; replied, "I am sure it is not I." B. can sue A. for charging him with perjury. Coe v. Chambers, 1 Roll. Abr., 75; Vin. Abr., c. b., 4. § 28. Indirect Defamation. — Slanderous words or libelous matter, defamatory of a certain person, may in some cases be indirectly defamatory of other persons; and when words ap- parently apply only to a thing, and not to a person, still if the owner of the thing can show that the words substantially re- flect upon him, he may sue without giving proof of special 264 OEETAINTY OF IJfPUTATION. damage and without proving malice. Thus, to write and puh- lish that plaintiff's ship is unseaworthy and has been sold to the Jews to carry convicts,, is a libel upon the plaintiff in the way of his business, as well as upon his ship.' § 29. Digest of English Cases.— 1. Slander addressed to plaintiff's wife: " You are a nuisance to live be- side of. Yon are a bawd, and your house is no better than a bawdy- house." . Heidi that the plaintiff could maintain the action without joining his wife, and without proving special damage; because if in fact his wife did keep a bawdy-house, the plaintiff could be indicted for it. Huckle v. Reynolds, 7 C. B.'(N. S.), 114. 2. Where a married man was called " cuckold" in the city of London, his wife could sue; for it was tantamount to calling her "whore." Vicars V. Worth, 1 Stra., 471 ; Hodgkins et ux. v. Corbet et ux., 1 Stra., 545. § 30. The Imputation Need Not he in Positive and Direct Language.— It is not necessary that the defendant should in so many words expressly state the plaintiff has committed a particular crime. So, where a charge is made against a trader, it need not be conveyed in positive and direct language. Any words which distinctly assume or impl}'^ the plaintiff's guilt are sufficient. But words merely imputing to the plaintiff a criminal intention or design are not actionable so long as no criminal act is directly or indirectly assigned. So, too, words of mere suspicion, not amounting to a charge of felony, are not actionable; and no innuendo can make them so.^ § 31. The Law Stated hy Chief Justice Shaw.— The law cannot be eluded by any of the artful and disguised modes in which men attempt to conceal treasonable or libelous and slanderous meanings and designs; that, in truth,, language is published and circulated with intent to slander and defame others, though such intent is artfully concealed by use of am- biguous, technical or conventional terms, or court phrases, or in any of the other thousand forms in which malice attempts to disguise itself; still, if it really does mean and intend, the criminal charge attributed to it, it shall not escape legal ani- madversion and publication, if rightfully and sufficiently charged, so as to enable the jury to receive proof of all those extraneous facts and circumstances which conspire to affix upon it such criminal character; and that when so charged, > Ingram v. Lawson, 6 Bing. N. C, B., 823; 15 L. J., Q. B., 253; 10 Jur., 212; 4 Jur., 151; 9 C. & P., 326; 8 796. Scott, 471 ; -Solomon v. Lawson, 8 Q. 2 Odgers on L. & S., 133. ILLtrSTEATIONS — DIGEST OF CASES. 265 and when the facts are proved which give it this' character, the jury are not to shut their eyes to that which air the rest of mankind can see and know and understand.' § 32. Illustrations — Digest of American Cases.— 1. The following words have been held to convey an imputation with sufficient certainty and precision : " Knave," to call a clergyman a knave, a liar and a rascal. Harding v. Brooks, 23 Mass. , 243. 2. "I never took a pair of boots from a dead man." The taking of arti- cles of dress animo furandi from the body of a dead man, drowned and driven ashore from a wreck, is a felony in Massachusetts ; hence, the above words imputing such act and intent are actionable. Wonson v. Saywood, 31 Mass., 403. 3. The statements "You are either a thief or you got the book from a thief " is equivalent to a direct charge of theft. Blackwell v. Smith, 8 Mo. App., 48. 4. But the words "You will steal" or "I believe you will steal" are ac- tionable in themselves. It is competent, however, to show that the words, spoken under the peculiar circumstances attending their utterance, ex- pressed a charge of crime committed, in which case they are actionable. Zeliff V. Jennings, 61 Tex., 4.^8. § 33. Digest of English Cases.— 1. " Thou art a corn-stealer ; " in spite of the objection ' ' that it might be that the corn was growing, and so no felony." Anon. (1597), Cro. Eliz., 568. 2. So where the defendant, on hearing that his barns were burnt down, said: " I cannot imagine who it should be but the Lord Sturton." Lord Sturton V. Chaffin (1568), Moore, 143. 3. To state that criminal proceedings are about to be taken against the plaintiff (as that the attorney-general had directed a certain attorney to prosecute him for perjury) is actionable, although the speaker does not ex- pressly assert that the plaintiff is guilty of the charge. Roberts v. Camden, 9 East, 93; Tempest v. Chambers, 1 Stark., 67. 4. "I believe all is not well with Daniel Vivian ; there be many mer- chants who have lately failed, and I expect no otherwise of Daniel Vivian," is a charge of present pecuniary embarrassment. Vivian v. Willet, 3 Salk., 336; Sir Thos. Eaym., 207. 5. So, also, " two dyers are gone off, and for aught I know Harrison will be so too within this twelvemonth." Harrison v. Thornborough, 10 Mod., 196; Glib. Cas., 114. 6. "He has become so inflated with self-importance by the few hundreds made in my service — God only knows whether honestly or otherwise," is an insinuation of embezzlement. Clegg v. Laffer, 3 Moore & Sc, 737; 10 Bing., 350. 7. " I think in my conscience if Sir John might have his will he would kill the king " is a charge of compassing the king's death. Sidnam v. Mayo, 1 Roll. Eep., 437; Cro. Jac, 407; Peake v. Oldham, Cowp., 875; 3 Wm. Bl., 959. 1 Com. V. Child, 30 Mass., 305. 266 CERTAINTY OF IMPUTATION. 8. It is actionable to say, " I am of opinion that sudh a privy councilor is a traitor," or "I think such a judge is corrupt." Per Wyndham and Soi-oggs, JJ., and North, C. J., la Lord Townshend v. Dr. Hughes, 2 Mod., 166. 9. So, too, if the charge incidentally slips into a conversation on another matter an action lies; as where the defendant said: "Mr. Wingfleld, you never thought well of me since Graves did steal my lamb;" and it was held that Graves could sue. Graves' Case, Cro. Eliz., S89. 10. Or, "I dealt not so unkindly with you when you stole a sack of my corn." Cooper v. Hawkeswell, 3 Mod., 58. 11. A libelous charge may be insinuated in a question : e. g., " We should be glad to know how many popish priests enter the nunneries at Scorton and Darlington each week? and also how many infants are born in them every year, and what becomes of them? whether the holy fathers brinK them tip or not. Or whether the innocents are murdered out of hand or not.'' Alderson, B., directed the jury that if they thought the defendant by ask- ing the question meant to assert the facts insinuated the passage was a libel. E. V. Gathercole, 2 Lew. C. C, 237, 255. 12. But where the defendant said: " I have a suspicion that you and B. have robbed my house, and therefore I take you into custody," the jury found that the words did not amount to a direct charge of felony, but only indicated what was passing in defendant's mind. Tozer v. Mashford, 6 Ex., 539; 20 L. J., Ex., 225; Harrison v. King, 4 Price, 46; 7 Taunt., 4.31; 1 B. & Aid., 161. 13. No action lies for such -vvords as " Thou deservest to be hanged; " for here no fact is asserted against the plaintiff. Hake v. Molton, Roll, Abr. , 43; Cockaine v. Hopkins, 2 Lev., 214. §34. The Defamatory Charge — How Conveyed. — A de- famatory charge may be sufficiently conveyed: (1) By the use of adjective words; (2) by a sentence in the form of a ques- tion ; (3) by questions and answers, as in a series of questions and answers; (4) by repeating gossip; (5) by certain expres- sions, gestures and intonation of voice. §36. First, by Adjective Words — Illustrations— Ameri- can Cases. — 1. It is actionable to call a person a thieving puppy. Little v. Barlow, 26 Ga., 423; Pierson v. Stortz, 1 Morr. (Iowa), 136. 2. To chaVge one with being a thieving person or to say of him that he stole and ran away is actionable. Alley v. Neely, 5 Blackf. (Ind.), 300. 3. Also to say " you G— d d— d lying, thieving son of a bitch." Rey- nolds V. Ross, 42 Ind., 387. 4. " You are an infernal roguish rascal." Morgan v. Livingston, 3 Rich. (S. C), 573. 5. " The Rev. Thomas Smith is a perjured man." Cunningham v. Smith, 2 S. & R, 440. §36. Digest of English Cases.— 1. "Thou ait a leprous knave." Taylor v. Perkins, Cro. Jac., 144; 1 Roll. Abr„ 44. QUESTIONS AND ANSWERS. 267 2. "He is a bankrupt kuave," spoken of a trader. Squire v. Johns, Cro. Ja&, 585; Loyd v. Pearce, Cro. Jac, 434. 3. " Thou art a broken fellow." Anon., Holt, 653. 4. "Mr. Bittridge is a perjured old knave." Bittridge's Case, 14 Rep., 19; Croford v. Blisse, 3 Buls., 156. 5. "A libelous journalist," a phi-ase which will be taken to mean that the plaintiff habituallj- publishes libels in his paper, not that he once pub- lished one libel merely. Wakley v. Cook and Healey, 4 Exch., 511 ; 19 L. J., Ex., 91. § 37. Second^ by a Sentence in the Form of a Question — Illustrations — Digest of American Cases. — 1. "What did you do with the sheep you killed?" "Did you eat it?" " It was like the beef you got 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." Morgan v. Livingston, 3 Rich. (S. C), 573. § 38. Digest of English Cases.— 1. An action lies where the defendant said "When wilt thou bring home the nine sheep thou stolest from J. N.?" Hunt v. Thimblethorpe, Moo, 41 S; 1 Vin. Abr., 439. 2. A libelous charge maybe insinuated in a question; as, "We should be glad to know how many popish priests enter the nunneries at Scorton and Darlington each week? and also how many infants are born in them every year, and what becomes of them? whether the holy fathers bring them up or not, or whether tlie innocents are murdered out of hand or not." Alder- son, B., directed the jury that if they thought the defendant by asking the question meant to assert the facts insinuated the passage was a libel. R. v. Gathercole, 2 Lew. C. C, 237, 255. 3. So an action lies for saying, " Did you hear that J. S. is guilty of trea- son? " Earl of Northampton's Case, 12. 4. A., the wife of B., was asked by C, "Wherefore will your husband bang J. S.?" She answered, " For breaking our house in the night and stealing our goods.'' The words were held to be actionable, for though they were spoken in answer to a question they amount to a charge of stealing goods. Hayward v. Naylor, 1 Roll. Abr., 50. o. The defendant published the following advertisement: "This is to re- quest that if any printer or other person can ascertain that James Delany, Esquire [the plaintiff], some years since residing at Cork, late lieutenant in the North Lincoln militia, was married previous to 9 o'clock in the morning of the 10th of August, 1799, they will give notice, etc., and received the re- ward." And it was left by Lord EUenborough, C. J., to the jury to say whether the advertisement imputed a charge of bigamy to the plaintiff. Delany v. Jones, 4 Esp. C, 191. § 39. Third, in a Question and Answer or in a Series ot Questions and Answers — Illustrations — Digest of Ameri- can Cases. — Where, in answer to an inquiry, " Were there any failures yesterday?" it was said, " Not that I know of, but I understand there is trouble with the Messrs. S.," it was held that the words being spoken of the plaintiffs as 208 CEETAINTY OF IMPUTATION. merchants they were actionable in themselves. Sewall v. Coltin, 3 Wend. (N. y.). 291. § 40. Fourth, by Repeating Gossip — Illustrations — Di- gest of American Cases. — 1. A man may slander or libel another as effectually by circulating ru- mors or reports, or by putting his communication, spoken or written, in the shape of hearsay, as by making distinct assertions of the slanderous matters, and asserting them as truths of his own knowledge. Schenck v. Schenck, 30 N. J. L., 308. 2. The fact that, when making a slanderous statement, the defendant gave it as a report, and mentioned his authority, does not exonerate him from liability. Fowler v. Chicester, 36 Ohio St., 9. 3. One who repeats slanderous words of another is liable, although a dis- belief in the truth of the slander is expressed at the time, and although the charge was repeated for the purpose of asking advice. Branstetter v. Dar- rough, 81 Ind., 527. i. Where one person hears another make a charge which he repeats, he will not be exempt from liability unless at the time of repeating the words he affords the "person against whom the charge is made a cause of action against the original author. Johnson v. St. L. Dispatch Co., 65 Mo., 539. § 41. Digest of English Cases. — 1. " One told me that he heard say that Mistress Meggs had poisoned her first husband." Meggs v. Griffith (vel (iriffin), Cro. Eliz., 400; Moore, 408; Read's Case, Cro. Eliz., 645. 2. " Did you not hear that C. was guilty of treason? " Per cur. in Earl of Northampton's Case, 13 Rep., 134. 3. "Thou art a sheep-stealing rogue, and farmer Parker told me so.'' Gardiner v. Atwater, Sayer, 365. 4. "I heard you -had run away"(sc. from your creditors). Davis v. Lewis, 7 T. R., 17. § 42. Fifth, Slanderous Imputation Conveyed hy Signs and Gestures. — A defamatory charge may also be conveyed by certain expressions accompanied by gestures and intonations of voice. In such cases the rule relating to evidence of in- tention is somewhat dififerent from cases where the charge is conveyed by language capable of being stated fully to the jury, and capable of being fully understood by them. When the charge is made by gestures and signs or intonations of the voice and not solely in words, courts have found it necessary to allow a departure from the strict rule that has to some ex- tent prevailed, and to permit witnesses to state what meaning they understood the defendant to convey and to whom he in- tended to apply it.' 1 Leonard v. Allen, 11 Gush. (65 Mass.), 241. SIGXS, GESTURES, ETC. 269 § 43. Intention Indicated by Signs, Gestures and the Like. The general rule is that the jury and not the witnesses are to determine the meaning and application of defamatory words. But where, as is often the case, the slanderous charge is not made in direct terms, but by equivocal expressions, insinuations, gestures, or even tones of the voice, which often have a potent meaning incapable of description, it is competent for witnesses who heard and saw them to state what they understood by them and to whom they understood them to apply.* •Blakemanv. Blakeman, 31 Minn., 15 Vt, 345; Barton v. Holmes, 16 oB6; 18 N. W. Rep., 103; Leonard V. Iowa, 253. Allen, 11 Gush., 341 ; Smith v. Miles, CHAPTEK XIV. CONSTEUCTION OF LANGUAGE. § 1. The Construction of Language as AppUed to Pleading and Evidence. 2. First, Words Obviously Defamatory. 3. The Defense. 4. Illustrations — Digest of American Cases. 5. Digest of English Cases. ' 6. Second, Words Ambiguous but Susceptible of an Innocent Meaning. 7. Illustrations — Digest of American Cases. 8. Digest of English Cases. 9. Third, Meaningless Words — Slang Expressions — Words in a For- eign Language or Used in Some Local, Technical or Customary Sense. 10. Words in Foreign Languages. 11. Slang Expressions — Provincial or Obsolete Expressions. 13. Illustrations — Digest of American Cases. 13. Digest of English Cases. 14. Fourth, Words Apparently Innocent but Capable of a Defamatory Meaning — Words Spoken Ironically. 15. The Law Stated by Chief Justice Shaw. 16. Province of the Court and Jury. 17. Duty of the Jury in Determining the Meaning. 18. Illustrations — Digest of American Cases, 19. Digest of English Cases. 20. Words Spoken Ironically. 21. Illustrations — Digest of American Casea 23. Digest of English Cases. 23. Fifth, Words Obviously Innocent. 24. Illustrations — Digest of American Cases. 25. Digest of English Cases. § 1. The Construction of Language. — la applying the rules of pleading and evidence in the construction of defamatory words, it will be convenient to divide them into five classes: ^ (1) Words obviously defamatory. (2) Words arnbiguous^ which, though apparently defamatory, are still on their face susceptible of an innocent meaning. (3) Words meaningless until some explanation is given; slang 'OdgersonL. & S., 104. WORDS OBVIOUSLY DEFAMATOET. 271 expressions; foreign languages; words used in some special, local, technical or customary sense. (4) Words ajpparently innocent but capable of a defamatory meaning ironically spoken. (5) Words ohoiously innocent and incapable of a defamatory meaning. § 2. First, Words Obviously Defamatory.— In pleading this class of words no innuendo is necessary. Nor is parol evi- dence admissible to explain the meaning of the words. The defendant cannot be heard to say that he did not intend to in- jure the plaintiff's reputation, if he has in fact done so. The question is still, however, for the jury ; but the court will prac- tically instruct them that the words are actionable and that they should find for the plaintiff.' § 3. The Defense. — But the defendant may plead circum- stances which make it clear that at the time he spoke or wrote the words they were not used in their ordinary signification, and thus render the words prima facie defamatory only. It will then be a question for the jury how the by-standers un- derstood the words. This question can only arise where the words are susceptible of the innocent meaning which the de- fendant seeks to place upon them, and where also the circum- stances which are alleged to qualify the injurious words were known to the by-standers at the time.^ But words which are clearly slanderous in the understanding of the by-standers, and from their proper import, cannot be explained by reference to other facts which were not mentioned by the party at the time he uttered the words complained of.' § 4, Illnstrations — Digest of American Cases. — (1) Libel. 1. To write and publish that a certain woman is a prostitute, and that " she is, I understand, under the patronage or protection of " the plaintiff, was held actionable in the court of appeals in New York, although there was no innuendo averring that she was under the plaintlfPs protection for immoral purposes. More v. Bennett (1872), 48 N. Y. (3 Siokels), 473 ; reversing the judgment of the court below, 33 How. 180 ; 48 Barb. (N. Y.), 239. iLevi V. Milne, 4 Bing., 195; 13 'Watson v. Nicholas, 6 Humph. Moore, 418. (Tenn.), 174. ^Garrett v. Dickerson, 19 Md., 418; De Moss V. Haycock, 15 Iowa, 149. 272 CONSTEUCTION OF LANGUAGE. . 2. Charging a person with infringing upon a patent regularly granted is libelous. Watson v. Trask, 6 Ohio, 531. 3. To falsely and maliciously publish that the plaintiff's house was searched under legal process to discover stolen goods is libelous in itself. State V. Smiley, 37 Ohio St., 30; 41 Am. Rep., 487. 4. " The Hurricane Vote. — Again we have to chronicle most atrocious corruption, intimidation and fraud in the Hurricane Island vote, for which David Tillson is without doubt responsible, as he was last year." Held to be actionable without extrinsic averments to communicate its precise im- port, and without any allegation of special damage. Tillson v. Bobbins, 68 Me., 295. (3) Slandee. 1. " Blackmailing" is clear, and requires no innuendo to support it. Ed- sall V. Brooks, 2 Robt. (N. Y.), 29; 8 Robt. (N. Y.), 284. 2. So is " pettifogging shyster '' when applied to a lawyer, ' ' Courts have no right to be ignorant of the meaning of current phrases which everybody else understands." Bailey v. Kalamazoo Pub. Co., 4 Chaney (40 Mich.), 251. 3. So to say of a bank director, " He is a swindler." Forrest v. Hanson, 1 Cranoh, C. Ct., 68. 4. It is equally slanderous in legal contemplation to say that a woman is a whore, or that there is a rumor she is such. Kelly v. Dillon, 5 Ind., 426. 5. Calling a person a knave was held actionable in Massachusetts. Hard- ing v. Brooks, 5 Pick., 244. 6. Charging a woman with drunkenness was held sufficient to sustain an action for slander. Brown v. Niokei-son, 5 Gray (Mass.), 1. 7. The words, "You are a vagrant," are slanderous in Pennsylvania. Miles V. Oldfield, 4 Yeates (Penn,), 433. And so to charge another with making a libel. Andreas v. Kopphefer, 3 Serg. & R. (Penn.), 255. 8. To call a man or his wife a mulatto is actionable in South Carolina. Eden v. Legare, 1 Bay (S. C), 171; Atkinson v. Hartly, 1 McCord (S. C); •203; King v. Wood, 1 N. & M. (S. C), 184. 9.' No innuendo is necessary to explain the meaning of the word " de- faulter " used in a publication to express a disqualification for an office of trust. State v. Kountz, 12 Mo. App., 511. 10. In North Carolina a count charging the defendant with saying the plaintiff is " incontinent," without prefatory matter and without innuendo, is good. Watts v. Greenlee, 2 Dev. L., 115. H. The declaration alleged that the defendant said of the plaintiff, "He is a thief and a liar, and I can prove it." It was held that the words of themselves in their common acceptation imported a charge of larceny, and that the declaration was sufficient without a colloquium or innuendo; that if the words were spoken in a different sense, not amounting to a charge which they usually import, and were understood in that sense by those in whose presence they were spoken, the defendant might show this on trial as a defense to the action, Robinson v. Keyser, 22 N. H., 328. 12. Words which charge the taking of the personal property of another may be defamatory or not, according to the circumstances; but words which are obviously defamatory in the understanding of the by-standers, WORDS OBVIOUSLY DEFAMATOET. 2Y3 and from their proper import, cannot be explained by reference to other facts which were not mentioned by the party at the time he uttered the words. Watson v. Nicholas, 6 Humph. (Tenn.), 174. § 5. Digest of English Cases.— (1) LOBEL. 1. It is libelous to write and publish these words: "Threatening Letters. The Middlesex grand jury have returned a true bill against a gentleman of some property named French." And no innuendo is necessary to explain the meaning of the words; for they can only import that the grand jury had found a true bill against French for the misdemeanor of sending threat- ening letters. Harvey v. French, 1 Cr. & M., 11 ; 2 M. & Scott, 591 ; 2 Tyrw., 585. 2. Allegorical terms of well-known import are libelous per se, without innuendoes to explain their meaning; e. g., imputing to a person the quali- ties of the "frozen snake," or calling him "Judas." Hoare v. Silverlock, (No. 1, 1848), 12 Q. B., 624; 17 L. J., Q. B., 306; 12 Jur., 695. 3. It is libelous without any innuendo to write and publish that a newspaper has a separate page devoted to the advertisements of usurers and quack doctors, and that the editor takes respectable advertisements at a cheaper rate if the advertisers will consent to their appearing on that page. The court, however, expressed surprise at the absence of some such innuendo as " meaning thereby that the plaintiff's paper was an ill-conducted and low class journaL" Russell v. Webster, 23 W. E., 59. 4. Where a libel called the plaintiff a " truckmaster," and the defendant justified, but no evidence was given at the trial as to the meaning of the word, the court held after some hesitation that, though the word was not to be found in any English dictionary, its meaning was sufficiently clear to sustain the action, there being a statute called " The Truck Act." Homer v. Taimton, 5 H. & N., 661; 29 L. J., Ex., 318; 8 W. R., 499; 2 L. T., 513. (2) Slander. 1. Words complained of, " Thou art a thief." No innuendo at all is neces- sary, as larceny is clearly imputed. Blumley v. Rose, 1 Roll. Abr. , 73 ; Slow- man V. Dutton, 10 Bing., 402. 2. If the words can be understood as imputing a crime no innuendo is necessary. And, if it were, an innuendo, "meaning thereby that the plaint- iff had been guilty of a criminal pffense," is sufficient without specifying what particular crime is meant. Webb v. Beavan, 11 Q. B. D., 609: 52 L. J., Q. B., 544; 49 L. T., 201; 47 J. P., 488; Kinnahan v. McCullagh, Ir. R., 11 C. L.. 1; Saunders v. Edwards, 1 Sid., 95; Francis v. Roose, 3 M. & W., 191; IH. & H., 36. 3. To say, "He robbed John White," is prima facie clearly actionable. But the defendant may show. If he can, that that is not the selnse in which the words were fairly understood by by-standers who listened to the whole conversation, though previously unacquainted with the matter to which the words sued on relate. Tomlinson v. Brittlebank, 4 B. & Adol., 630; 1 Nev. & Man., 455; Hankinson v. Bilby, 16 M. & W,, 443; 2 C. & K., 440; Martin v. Loei, 3 F. & F., 654. 18 274 OONSTEtlCTION OF LANGUAGE. § 6. Second.— Words ambiguous, which, though apparently- defamatory, are still on their face susceptible of an innocent meaning. In this class of defamatory words no innuendo is necessary, and no parol evidence is admissible to explain the meaning of the words. The court will direct the jury that the words are actionable in themselves. THE DEFENSE. The defendant may plead circumstances showing that the words were not used by him in their ordinary signification. He may show that the words were uttered merely in a joke, and were so understood by all who heard them ; or that the words were part of a longer conversation, the rest of which limits and explains the words sued on; or any other facts which tend to show that they were uttered with an innocent meaning, and were so understood by the by-standers. And if such a defense be pleaded, parol evidence may be given of the facts alleged. It then becomes a question for the jury whether the facts as pleaded are substantially proved, and whether they put on the words a color different from what they would prima facie bear. It may be difficult, however, to induce the jury to adopt the defendant's harmless view of his own language.' But the defendant cannot plead or give in evidence any facts which were not known to the by-standers at the time the words were uttered. His secret intent in uttering the words is im- material.^ He is allowed thus to give evidence of all the surrounding circumstances, in order to place the jury so far as possible in the position of by-standers, so that they may judge how the words would be understood on the particular occasion. But though evidence of such extrinsic facts is admitted, parol evi- dence merely to explain away the words used, to show that they did not for once bear their ordinary signification, is in- admissible. A witness cannot be called to say, " I should not iRoby V. Murphy, 27 111. App., 394; SHankinson v. Bilby, 16 M. & W., Odgers on L. & S., 106; Carter v. 445; 2 C. & K.. 440. Carter, 63 111., 439; Welch v. Eakle, 7 J. J. Marsh. (Ky.), 424. AMBIGUOUS WORDS. 275 have understood defendant to make any imputation whatever on the plaintifiF." The jury know what ordinary English means, and need no witness to inform them. They are the sole judges of the intent to be given to the defamatory words. § 7. Illustrations — Digest of American Cases.— § 1. Where the declaration charged the defendant with calling the plaint- iff "a dirty bitch," "a dirty slut," "a dirty lying slut," "a filthy lying slut," the words being laid without a colloquium going to show that they were used in a slanderous sense, it was held that the words must be taken in their common acceptation. The word " bitch" when applied to awoman does not in its common acceptation import fornication or adultery. The word " slut " according to Webster means an untidy woman, a slattern, and also a female dog, the same as " bitch." While such terms are coarse, vul- gar and brutal when applied to a woman, they do not amount to a charge of crime or want of chastity, and are not, therefore, in their common meaning slanderous words. Roby v. Murphy, 27 111. App., 394; K. v. H., 20 Wis., 252 ; Logan v. Logan, 77 Lid., 558. § 2. In cases of slander, words take their actionable character from the sense in which they are used and that in which they are most likely to be understood by those who hear them. Gai-rett v. Dickerson, 19 Md., 418; De Moss V. Haycock, 15 Iowa, 149. § 8. Digest of English Cases.— 1. The leading English case on this subject is one cited in Lord Crom- well's Case (1578), 4 Rep., 13, 14: "If a man brings an action on the case for calling the plaintiff murderer, the defendant will say that he was talk- ing with the plaintiff concerning unlawful hunting, and the plaintiff con- fessed that he killed several hares with certain engines; to which the defendant answered and said, ' Thou art a murderer ' (innuendo the killing of the said hares). . . . Resolved by the whole court that the justifica- tion was good. For in case of slander by words the sense of the words ought to be taken, and the sense of them appears by the cause and occa- sion of speaking of them, for sensus verborum ex causa dicendi acdpiendus est et sermones semper acdpiendi sunt, secundum subjectum. . . . And it was said, God forbid that a man's words should be by such strict and grammatical construction taken by parcels against the manifest intent of the party upon consideration of all the words which import the true cause and occasion which manifest the true sense of them ; quia quce ad unum finem loquuta sunt, non debent ad alium detorqueri: and, therefore, in the said case of murder the court held the justification good ; and that the de- fendant should never be put to the general issue when he confesses the words and justifies them, or confesses the words and by special matter shows that they are not actionable." Shipley v. Todhunter, 7 C. & P., 680 ; Odgers on L. & 8., 109. 2. Defendant stated publicly that plaintiff had been detected taking dead bodies out of the churchyard, and fined, etc. He meant it as a joke, but there was no evidence that the by-standers so understood it. The court set aside a verdict for the defendant. Joy, C. B.: "The principle is clear that a person shall not be allowed to murder another's reputation in jest. But 276 CONSTBUCTION OF LANGUAGE. if the words be so spoken that it is obvious to every by-stander that only a jest is meant, no injury is done, and consequently no action would He." Donoghes v. Hayes, Hayes (Irish ExCh.), 365. 3. But where the defendant said, " Thompson is a damned thief, and so was his father before him, and I can prove it; " but added, " Thompson re- ceived the earnings of the ship, and ought to pay the wages," Lord Ellen- borough held that the latter words qualified the former and showed no felony was imputed ; the person to whom the words were spoken being the master of the ship and acquainted with all the circumstances referred to. Thompson v. Bernard, 1 Camp., 48; Bittridge's Case, 4 Rep., 19; Cristie v. Cowell, Peake, 4; Day v. Robinson, 1 A. & E., 554; 4 N. & M., 884. 5. Where words are used which clearly import a criminal charge (as " You thief," or " You traitor") it is still open to the defendant to show if he can that he used them merely as vague terms of general abuse, and that the by-stand - ers must have understood them as meaning nothing more than "You rascal," or " You scoundrel." When such words occur in a string of non-actionable epithets, or in a torrent of general vulgar abuse, the jury may reasonably infer that no felony was seriously imputed. If, however, the jury put the harsher constructions on defendant's language no new trial will be granted, for it is a question entirely for them. Minors v. Leeford, Cro. Jac, 114; Penfold V. Westcote, 3 Bos. & P. N. R., 335. 6. Where the defendant said to the plaintiff in the presence of others, " You are a thief, a rogue and a swindler," it was held that the defendant could not call a witness to explain the particular transaction which he had in his mind at the time, since he did not in any way expressly refer to it in the presence of his hearers. Martin v. Loei, 3 F. & F., 654; Read v. Aui- bridge, 6 C. & P., 308; Hankinson v. Bilby, 16 M. & W„ 442; 2 C. & K., 440. 7. Words complained of : " Thou hast killed my wife." Defendant's wife was still alive, and the by-standers knew it. Held, that plaintiff was not put "in any jeopardy, and so the words vain and no scandal or damage to the plaintiff." Snag v. Gee, 4 Rep., 16, as explained by Parke, B., in Hem- ing V. Power, 10 M. & W., 569. 8. Words complained of : " You stole my apples." The defendant cannot be allowed to state that he only meant to say, "You have tortiously re- moved my apples under an unfounded claim of right." The by-standers could not possibly have understood from the words used that a civil trespass only was imputed. Deviill v. Hulbert (Jan. 35, 1878), unreported; Odgers onL. &S., 103. 9. But where the words complained of are, " Thou art a thief, for thou tookest my beasts by reason of an execution, and I will hang thee," no ac- tion lies, for it is clear that the whole sentence taken together imports only ^^. charge of trespass. Wilk's Case, 1 Roll. Abr., 51 ; Smith v. Ward, Cro. Jac, 674; Sibley v. Tomlins, 4 Tyrw., 90. § 9. Third.— Words which are meaningless until some ex- planation of them is given; such as slang expressions, words in a foreign language, or used in some special, local, technical or customary sense. FOEEIGN WORDS, SLANG PHEASKS, ETC. 27*? Where the words complained of are only ordinary English words, the court can decide at once whether they are prima facie actionable or not. But where the words are in a foreign language, or are technical or provincial terms, an innuendo is absolutely necessary to disclose an actionable meaning. So, too, an innuendo is essential where ordinary English words are not in the particular instance used in their ordinary English signification, but in some peculiar sense. § 10. Words Spoken in a Foreign Language. — Where the words are spoken in a foreign language the original words should be set out in the declaration and an exact translation should be added.^ In the case of slander an averment was formerly required to the effect that those who were present understood that language.^ And though such an averment is no longer necessary, the fact must still be proved at the trial. For if words be spoken in a tongue altogether unknown to the hearers, no action lies;' for no injury is done to the plaintiff's reputation. But if a single by-stander understood them, that is enough. Where, however, the words are spoken in the ver- nacular of the place of publication, as English words spoken in England, it will be presumed that the by-standers understood them. At the trial the correctness of the translation must be proved by a sworn interpreter. § 11. Provincial or Obsolete Expressions — Slang Phrases, etc. — Whenever the words used are not ordinary English, but some local, technical, provincial or obsolete expressions, or slang or cant terms, evidence is admissible to explain their meaning, provided such meaning has been properly alleged in the pleadings. But when the words are well known and per- fectly intelligible English the court will give them their ordi- nary English meaning, unless it is in some way shown that that meaning is inapplicable. This may appear from the words themselves ; for in some cases to give them their ordi- nary English meaning would make nonsense of them. But if in their ordinary English meaning the words would be intel- ligible, facts must be given in evidence to show that they may 1 Zenobio v. Axtell, 6 T. R., 162 ; 3 ^ Jones v. Davers, vel Dawkes, Cro. M. & S., 116. Eliz., 496; 1 Roll. Abr., 74. 2 Fleetwood v. Curl, Cro. Jac, 557 ; Hob., 268. 27S CONSTRUCTION OF LANGUAGE. have been used in another special meaning on this particular occasion. After that has been done a by-stander may be asked, "What did you understand by the expression used?" But without such a foundation being first laid the question is not allowable.' § 12. Illustrations — Digest of American Cases. — 1. The defendant, the editor of a newspaper, owed plaintiff money under an award, and wrote and published in his newspaper these words: "The money will be forthcoming on the last day allowed by the award, but we are not disposed to allow him to put it into Wall street for shaving pur- poses before that period." " Shaving " in New York means (1) discounting bills or notes ; (2) fleecing men of their goods or money by overreaching, extortion and oppression. The declaration contained no innuendo alleging that the words were used in the second defamatory sense. Held no libel, on demurrer. Stone v. Cooper, 3 Den. (N. Y.), 293. 2. The meaning of slang phrases and metaphors may be suflSciently averred in the innuendo without a colloquium, and the truth of the aver- ment is for the jury to decide. Vanderlip v. Roe, 23 Penn. St., 82. § 13. Digest of English Cases.— (1) Libel. 1. Libel complained of: "There are very few persons in society who do not look upon the whole affair to be got up for a specific occasion, and con- sider that it has been neither more nor less than a 'plant.' We have heard it roundly asserted that a clerk of Mr. Hamer, the notorious lawyer, was placed under a sofa at his lordship's residence when the Earl of Cardigan called there." The indictment stated " that the said Thomas Holt used the words ' a plant ' for the purpose of expressing and meaning, and the said words used by him were by divers, to wit, all the persons to whom the said Ubel was published, understood as expressing and meaning, an artful and wicked plan and contrivance made and entered into by the said William Paget, Esq., and other persons by false and unfounded testimony and a wrongful and wicked perversion of facts to make out, support and estab- lish the said charge, and by concert and arrangement falsely to fix upon the said earl the commission of the said trespass and assault for the purpose of obtaining divers of the moneys of the said earl to the use of the said Will- iam Paget, Esq.," and concluded with the following innuendo: "Thereby then and there meaning that the said William Paget, Esq., had with other persons artfully and wickedly planned and contrived to make a false and unfounded charge against the said earl of his having been guilty of the said trespass and assault upon the said wife of the said William Paget, Esq., and to make out, support and establish such charge by false and unfounded tes- timony and a wicked and wrongful perversion of facts for the purpose of extorting and obtaining from the said earl divers of his moneys to the use of the said William Paget, Esq." A reporter for one of the London news- lOdgers on L. & S., 110; Daines v. Hartley, 3 Exch., 200; 18 L. J., Ex., 81; 12 Jur., 1093. PROVINCIAL on OBSOLETE EXPRESSIONS, ETC. 279 papers was called to define ' a plant,' and his evidence justified the innu- endo. The recorder left it to the jury whether they were satisfied that the word "plant" bore the meaning attributed to it by the prosecution; if so, the passage was libelous. Verdict, guilty. R. v. Holt, 8 J. P., 318. 3. It is libel on L. to write and publish of him that he is one of " a gang who live by card-sharping," there being an innuendo, "meaning thereby that L. is a swindler and a cheat, and lives by cheating or playing at cards, and that he and B. and G. had, previous to the libel, conspired together in cheating divers persons in playing at cards." Reg. pros. Lambri v. Labou- chere, 14 Cox, C. C, 419. (2) Slander. 1. Words complained of : "You are a hunter.'' No innuendo. "Willes, J., nonsuited the plaintiff on the ground that the word had no meaning at all, and could not therefore be defamatory in ordinary acceptation ; and he refused to allow the plaintiff to be asked what the word "bunter" meant. Aliter, had there been an innuendo averring a defamatory sense to the word " bunter." Rawlings et ux. v. Norbury, 1 F. & F., 341. 2. Words spoken to an attorney: "Thou art a daffadowndilly." In- nuendo, meaning thereby that he is an "ambidexter," i. e., one who takes a fee from both sides, and betrays the secrets of his client. Held, that an action lay. Anon. (Exch.), 1 Roll. Abr., 55; AnnisOn v. Blofield, Carter, 214. 3. It is actionable to say, " Thou art a clipper, and thy neck shall pay for it." "For though 'clipper' is general, and may be intended a clipper of wool, cloth, etc. , yet the following words show it to be intended of clipping for which he shall be hanged." Naben v. Miecock, Skin., 183. 4. It is actionable to say of a stock-jobber that "He is a lame duck;" innuendo, " meaning thereby that the plaintiff had not fulfilled his con- tracts in respect of the said stocks and funds " (stock-jobbing being now legalized by the 33d and 34th Vict., ch. 28). Morris v. Laogdale, 3 Bos. & Pul., 384. 5. The word " welcher " requires an innuendo to explain its meaning. Blackman v. Bryant, 37 L. T., 491. 6. Pollock, C. B., thought the word " truckmaster " required no innuendo to explain its meaning, as it " is composed of two English words intelligible to everybody." Homer v. Taunton, 5 H. & N., 661; 29 L. J., Ex., 318; 8 W. R., 499; 3 L. T., 512. But so are " blackleg" and " blacksheep," and these words do require an innuendo. M'Gregor v. Gregory, 11 M. & W., 287; 12 L. J., Ex., 204; 2 Dowl. (N. S.), 769; O'Biien v. Clement, 16 M. & W., 166;, 16 L. J., Ex., 77; Barnett v. Allen, 1 F. & F., 125; 27 L. J., Ex., 412; 4 Jur. (N. S.), 488; 3 H. & N., 376. 7. The defendant charged the plaintiff, a pawnbroker and silversmith, with "dufflng;" an innuendo, "meaning thereby the dishonorable prac- tice of furbishing up damaged goods and pledging them with other pawn- brokers as new," was held good. Hickinbotham v. Leach, 10 N. & W., 361 ; 2 Dowl. (N. S.), 270. 8. The words, " He is mainsworn," were spoken in one of the northern counties where "mainsworn" is equivalent to "perjured," forsworn with his hand on the book. Held actionable. Slater v. FrankK, Hob., 136: Coles V. Haviland, Ore. Eliz., 250; Hob., 12. 280 OONSTEUCTION OF LANGUAoa 9. A. and B. were partners, and were conversing with the defendant. A. said they held some bills on the plaintiff's firm ; the defendant said : " You must look out sharp that they are met by them." At the trial, B- was called as a witness and stated these facts. The counsel for the plaint- iff then proposed to ask B., " What did you understand by that? " But the question was objected to, and disallowed by the judge (Bollock, C. B.) in that form, and the counsel would put it in no other shape. The jury found a verdict for the defendant, and the court of exchequer refused to grant a new trial. Daines v. Hartley, 3 Exch., 200; 18 L. J., Ex.; 81 ; 13 Jur., 1093. § 14. Fonrth, Words Apparently Innocent but Capable of a Defamatory Meaning, and Words Spoken Ironically. — Wherever the words complained of are capable both of a de- famatory and an innocent meaning, it will be a question for the jury to decide which meaning the hearers or readers would on the occasion in question have reasonably given to the words.' An innuendo is essential to show the latent injurious meaning. Without it there would be no cause of action shown by the pleading. And such innuendo should be carefully drafted; for on it the plaintiff must take his stand at the trial. He cannot during the course of the case adopt a fresh construc- tion. He may, it is true, fall back on the natural and obvious meaning of the words; but that we assume here not to be ac- tionable. The innuendo must be specific; it must distinctly aver a definite actionable meaning. A general averment, such as, " using the words in a defamatory sense," or "for the pur- pose of creating an impression unfavorable to the plaintiff," would be insufficient.^ § 15. Tlie Law Stated by Chief Justice Sliaw.— "Any words, though in their natural and ordinary sense doubtful or uncer- tain, or even innocent, but which in the ordinary mode of de- claring by the aid of averments, colloquia and innuendoes, could be shown under the particular circumstances to be equiv- ocal or ironical, and to be intended by the speaker and un- derstood by the hearers, under whatever artful guise it may be concealed, to impute to the person the charge of crime, must be deemed slanderous, and competent, with the aid of the ex- traneous facts which go to show that they were used in sucli sense." ^ 1 Brittain v. Allen, 3 Dev. (N. C.) L., 3 Pond v. Hartwell, 34 Mass.. 269; 168; Smith ,. Gafford, 33 Ala., 168. Cooper v. Perry, Dudley (Ga.), 247 2 Cox V. Cooper, 13 W. E., 75 ; 9 L. r., 339. WORDS OF DOUBLE MEANING. 281 § 16. Province of the Court and the Jurj'.— The words must be fairly susceptible of the defamatory meaning put upon them by the innuendo, or the court at the trial may take the case from the jury. The court must decide if the words are reasonably capable of two meanings; if it so decide, then the jury must determine which of the two meanings was in- tended.* § 17. Duty of the Jury in Determining the Meaning.— In determining this question the jury will consider the whole of the circumstances of the case, the occasion of publication, the relationship between the parties, etc. A further question of fact may arise : Were there any facts known both to speaker and hearer which would reasonably lead the latter to under- stand the words in a secondary and a defamatory sense? And this is a question for the jury, if there be any evidence to go to them of such facts.^ Abo whenever the words of a libel are ambiguous, or the intention of the writer equivocal, sub- sequent libels are admissible in evidence to explain the mean- ing of the first, or to prove the innuendoes, even although such subsequent libels be written after action brought. "If the defendant can get either the court or the jury to be in his favor, he succeeds. The prosecutor or plaintiff cannot succeed unless he gets hoth the court and the jury to decide for him." ' § 18. Illustrations — Digest of American Cases. — 1. The words " she is sick " cannot be shown to have been understood by the hearers as meaning " she has had a child " without proper averments that they were so understood. Smith v. Gafford, 33 Ala., 168. 2. Words which in themselves do not import a slanderous meaning must be rendered so by an innuendo and an averment that they are spokeri of the plaintiff. But it the words are slanderous in themselves it is only necessary to aver that they were spoken of the plaintiff. Brittain v. Allen, 3Dev. (N. C.)L., 167. 3. Where the words were "he was seen afoul of a cow," it was held that they did not Warrant an innuendo that he was guilty of bestiality; but if 1 Sir Montague Smith, 6 App. Cas., P., 830; 28 W. R., 851; (H. L.) 7 p. 158; Jenner v. A'Beckett, L. R., 7 App. Cas., 741; 52 L. J., Q. B., 232: Q. B., 11 ; 41 L. J., Q. B., 14; 20 W. 81 W. R., 157; 47 L. T., 662; 47 J. P.. R., 181; 25 L. T.,464; Grantv. Yates, 214; Ruel v. Tatnell, 2tf W. R., 172; 2 Times L. R., 368. 43 L. T. , 507. 2 Capital and Co. Bank v. Henty SLord Blackburn, 7 App, Cas., * (C. A,), 5 C. P. D., 514; 49 L. J., C. p. 776. 282 CONSTE0OTION Or LANGUAGE. the defendant had been in the practice by the words laid of imputing the offense, or if he had used them on the occasion in question in that sense and they were so understood by the hearers, there should have been a spe- cial averment to tliat effect. Harper v. Debb, 3 Ind., 235. 4. The words "this company for good and sufacient reasons has resolved to dismiss D. D. Maynard from its service," when entered on its books by an insurance company and published concerning one of its agents, are not libelous in themselves, but may sustain an action for libel upon a complaint which properly avers that the words were intended by the defendant to be understood as imputing wrong-doing, and that they were in fact so under- stood by those who read them. Maynard v. Fireman's F. Co., 47 Cal, 207. 5. The word " screwed " does not of itself import sexual intercourse; but in certain localities it may have this import. When this occurs, the pleading founded upon it, as slanderous, must affirmatively allege its im- port at the time and place of use. Miles v. Van Horn, 17 Ind., 245; Elam V. Badger, 23 111., 498. 6. In a suit for the words charging the plaintiff with having "had two pups," meaning thereby that she had been guilty of bestiality or the crime against nature, it was held that the latter crime embraces the former; that if the latter crime is not the correct inference from the words averred, still the sufficiency of those averments is not affected ; that the court can- not say judicially whether it is 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. The action will lie. Ausman v. Veal, 10 Ind., 355. 7. In a count for words spoken charging the plaintiff with arson the language used was: " I next morning saw a track going to and returning from the house; the toes turned in, and I know but one man who owes me enmity enough to do such a thing, and you know whom I mean, B. D." (plaintiff). It was held that the words were not in themselves actionable : and as there was no averment of any matter of fact tending to identify the plaintiff as the person who made the tracks, the count was demurrable. Robinson v. Drummond, 24 Ala., 174. 8. A count alleging that the defendant used the words, " You moved the tree,'' adding : " The defendant thereby referring to and speaking of a cor- rer tree between said plaintiff and the survey of said Chappel," was held insufficient without a distinct averment showing that the words were used in reference to some corner tree of a particular survey. Beswick v. Chap- pel, 8 B. Mon. (Ky.), 486. 9. The rule in verbal slander is that if the words spoken ai-e susceptible of two meanings, one imputing a crime and the other innocence, the latter is not to be adopted and the other rejected as a matter of course. The sense in which the defendant used them must be left to the jury. Davis v. Johnston, 2 Bailey (S. C), 592. 10. A ludicrous but innocent misprint in a communication ostentatiously puffing the writer, and describing a surgical operation by him, is not libel- ous. SuUings V. Shakespeare, 46 Mich., 408; 41 Am. Rep., 166- 9 N W. Rep., 451. ' WOEDS OF DOUBLE MEANING^. 283 1 1. And where a complaint for a libel in the ' ' Medical Journal " charged the matter to be: "The late William H. Seward, when traveling around the world, and when at Yokahama, Japan, required the services of a dentist. Upon examination it was found that the inferior maxilla was comparatively useless for masticating purposes, there being a false joint at the seat of the original fracture; no union having taken place. This case will be remembered from the world-wide notoriety of the circumstances attending the injury, as well as the reports, which have been universally believed, that the patient was benefited by the treatment for the cure of his fracture." The plaintiff, by way of innuendo, further substantially al- leged that he treated said Seward for fracture of the lower jaw, and that he pubhcly and privately reported that said Seward was benefited by said treatment, of which reporting the defendants knew at the time of the pub- lication ; that they charged and intended to charge him with falsely and fraudulently so reporting, and that said publication was false and defama- tory and seriously injured the plaintiff in his reputation and practice as a dental surgeon. Held, that the language was hot defamatory on its face ; that no malice was presumable from the publication, and no right of action accrued to the plaintiff. Gunning v. Appleton, 58 How. (N. Y.) Pr., 471. 12. Plaintiff has no right to ask a witness what he considered the mean- ing of the words spoken except in the cases : 1st, where the words in the ordinary meaning do not import a slanderous charge, in which case, if they are susceptible of such a meaning and the plaintiff avers a fact from which it may be inferred that they were used for the purpose of making the charge, he may prove such an averment, and then the jury must decide whether the defendant used the words in the sense implied or not ; and 2d, where a charge is made by using a cant phrase, or words having a local meaning, or a nickname, when advantage is taken of the fact, known to the persons spoken to, to convey a meaning which they understood by con- necting the words (of themselves unmeaning) with such facts, in which case the plaintiff must make an averment to that effect, and may prove not only the truth of the averment, but also that the words were so under- stood by the person to whom they were addressed. Lasser v. Rouse, 13 Ired. (N. C.) Eq., 143. § 19. Digest of English Cases.— :(1) Libel. 1. A landlord sent to his tenants a notice : ' ' Messrs. Henty & Sons hereby give notice that they will not receive in payment any checks drawn on any of the branches of the Capital and Counties Bank." Innuendo, "meaning thereby that the plaintiffs were not to be relied upon to meet the checks drawn upon them, and that their position was such that they were not to be trusted to cash the checks of their customers." Held, that the words iu their natural and primary sense were not libelous ; that the onus lay on the bank to show that they conveyed some secondary libelous meaning; and that as no evidence was offered of facts known to the tenants which could reasonably Induce them to understand the words in the defamatory sense ascribed to them by the innuendo, there was no case to go to the jury, and the defendants were entitled to judgment. Capital, etc.. Bank v. Henty 284 CONSTEUCTION OF LANGUAGE. (C. A.), 5 C. P. D., 514; 49 L. J., C. P., 830; 28 W. R., 851 ; 43 L. T., 651 ; (H. L.) 7 App. Cas., 741; 53 L. J., Q. B., 332; 31 W. R., 157; 47 L. T., C63; 47 J. P., 214. 2. Defendant posted up several placards which ran thus: " W. Gee, Solicitor, Bishop's Stortford. To be sold by auction, if not previously dis- posed of by private contract, a debt of the above, amounting; to £3,197, due uponi partnership and mortgage transactions." There was no innuendo. Bramwell, B., instructed the jury that in his opinion this was no libel, '• because it was not libelous to publish of another that he owed money." R. V. Coghlan, 4 F. & F., 316. 3. In an indictment for publishing a handbill, '' B. Oakley, of Chilling- ton, Game and Rabbit Destroyer, and his wife, the seller of the same ia country and town," was quashed, there being no innuendo explaining the words or showing that they implied any offense or referred to the trade or calling of the prosecutor. Reg. v. Yates, 13 Cox, C. C, 233. i. An action was brought for the following libel on the plaintiff in the way of his trade : ' ' Society of Guardians for the Protection of Trade against Swindlers and Sharpers. I am directed to inform you that the persons using the firm of Goldstein & Co. are reported to this society as improper to be proposed to be balloted for as members thereof." After verdict for the plaintiff the court arrested judgment because there was no averment that it v.'a8 the custom of the society to designate swindlers and sharpers by the term " improper persons to be members of this society." [There was an innuendo, " meaning thereby that the plaintiff was a swindler and a sharper," etc., which would be sufficient now; but before C. L. P. Act, 1853, section 61, an innuendo required a prefatory averment to support it.] The words in their natural and obvious meaning were held to be no libel. Goldstein v. Foss, 6 B. & C, 154; 1 M. & P., 402; 2 Y. & J., 146; 9 D. & R., 197; (in Ex. Oh.) 4 Bing., 489; 3 C. &P., 253; Capel and others v. Jones, 4 0. B., 359; llJur., 396. (3) Slander. 1. The plaintiff was a gi-ocer, and had started what is known as a Christ- mas club, to which he endeavored to obtain one thousand subscribers. The defendant, a fellow-tradesman, said "His shop is in the market." Innuendo, " meaning thereby that the plaintiff was going away and was guilty of fraudulent conduct in his business, inasmuch as he had received subscrip- tions from members of the club, well knowing that they would be unable to obtain any benefit therefrom." Held, that the words not being in them- selves defamatory, and there being no evidence to support the innuendo, the defendant was entitled to judgment. Ruel v. Tatnell, 43 L. T., 507; 39 W. R., 173. 2. The defendant said to an upholsterer : " You are a soldier ; I saw you in your red coat doing duty; your word is not to be taken." These words are prima facie not actionable; but it was explained that there was then a common practice for tradesmen to sham enlisting so as to avoid being ar- rested for debt. The words were therefore held actionable as damaging the credit of a trader. Arne v. Johnson, 10 Mod., Ill ; Goatling v Brooks 8 F. & F., 76. WOKDS OF DOUBLE MEANING. 285 3. The defendant said of the plaintiff: " Foulger trapped three foxes in Ridler's wood." These words are pHma facie not actionable; but the dec- laration averred that the plaintifiE was a gamekeeper, that it is the duty of a gamekeeper not to kill foxes, that the plaintiff was employed expressly on the terms that he would not kill foxes, and that no one who killed foxes would be employed as a gamekeeper. Seld, on demurrer, a good declara- tion ; for the words so explained clearly imputed to the plaintiff miscon- duct in his office or occupation, and were therefore actionable without proof of special damage. Foulger v. Newcomb, L. R., 3 Ex., 327; 36 L. J Ex., 169; 15 W. R., 1181 ; 16 L. T., 595. 4. Words complained of: " The old materials have been relaid by you in the asphalt work executed in the front of the Ordnance office, and I have seen the work done." Innuendo, " that the plaintiff had been guilty of dis- honesty in his trade by laying down again the old asphalt which had be- fore been used at the entrance of the Ordnance office, instead of new asphalt according to his contract;" and this innuendo was held not too large._ Verdict for the plaintiff. Damages 40s. Baboneau v. Farrell, 15 C. B., 360; 24 L. J., C. P., 9; 3 C. L. R, 43; 1 Jur. (N. S.), 114. 3. To say that the plaintiff is " Man Friday" to another is not actionable, without an innuendo averring that the term imputed undue subserviency and self-humiliation. Forbes v. King, 2 L. J., Ex., 109; 1 Dowl., 672; Woodgate v. Ridout, 4 F. & F., 203. 4. " He is a healer of felons ; " innuendo, a concealer of felons. Held ac- tionable. Pridham v. Tucker, Yelv., 153; Hob., 136; Cart., 214. 5. " He has set his own premises on fire." These words are prima facie innocent, but may become actionable if it be averred that the house was insured, and that the words were intended to convey to the hearers that the plaintiff had purposely set fire to his own premises with intent to de- fraud the insurance office. There being no such averment, the court ar- rested judgment. Sweetapple v. Jesse, 5 B. & Ad., 27; 3 N. & M., 36. 6. " She secreted one and sixpence under the till, stating 'These are not times to be robbed.' " No innuendo. There being nothing to show that the l8. 6d. was not her own money, the court arrested judgment; for, though special damage was alleged, it was not the necessary and natural conse- quence of the words as set out in the declaration. Kelly v. Partington, 5 B. & Ad., 645; 3 N. &M., 116. 7. The plaintiff, Mary Griffiths, was a butcher, and had a son, Matthew. Words spoken by defendant: "Matthew uses two balls to his mother's steelyard;" innuendo, "meaning that plaintiff by Matthew, her agent and servant, used improper and fraudulent weights in her said trade, and de- frauded and cheated in her said trade." After verdict for the plaintiff, held that tlie words as stated and explained were actionable. Griffiths v, Lewis, 7 Q. B., 61; 8 Q. B., 841 ; 14 L. J., Q. B., 197; 15 L. J., Q. B., 349; 9 Jur., 370; 10 Jur., 711. 8. To say of a merchant, " He hath eaten a spider," Mr. Justice Wild said was " actionable with a proper averment what the meaning is." But the report does not vouchsafe any explanation of the meaning. Pranklyn V. Butler, Pasch., 11 Car. I., cited in Annison v. Blofield, Carter, 214. 9. The words, "'Ware hawk there; mind what yon are about," will, 286 OONSTEUCTION OF LANGUAGE. with proper averments, amount to a charge of inaolvenoy against the plaintiff, a trader ; and so are actionable. Ornwood v. Barkes (vel Parkes), 4 Bing., 261 ; 13 Moore, 492. § 20. Words Spoken Ironically.— The plaintiff may also aver in his declaration that the words were spoiien ironically; and it will then be a question for the jury quo animo the words were used.' § 21. Illustrations — Digest of American Cases.- 1. Words which are doubtful or even innocent in themselves, if proved to have a criminal signification according to the common understanding of them when used, will support an action of slander. Cooper v. Perry, Dudley (Ga.), 247. 2. "If, therefore, obscure and ambiguous language is used, or language which is figurative or ironical, courts and juries will understand it accord- ing 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, C. J., Commonwealth v. Kneeland, 20 Pick., 206; Vanderlip v. Eoe, 23 Pa. St. (11 Harris), 82. § 22. Digest of English Cases.— 1. Ironical praise may be a libel; e. g., calling an attorney "an honest lawyer." Boydell v. Jones, 4 M. & W., 446 ; 1 H. & H., 408; 7 Dowl., 310. 2. It is actionable to say ironically: " You will' not play the Jew or the hypocrite."' R. v. Garret (Sir Baptist Hicks' Case), Hob., 215; Popham, 139. 3. Ironical advice to the lord keeper by a country parson, " to be as wise as Lord Somerset, to manage as well as Lord Haversham, to love the church as well as the Bishop of Salisbury," etc., is actionable. E. v. Dr. Brown, 11 Mod., 86; Holt, 435. § 23. Fifth, Words Obviously Innocent and Incapable of a Defamatory Meaning. — Where the words can bear but one meaning, and that is obviously not defamatory, no innuendo or other allegation in the pleadings can make them so, and no action lies. No parol evidence is admissible to explain tte meaning of ordinary English words, in the absence of special circumstances showing that the words do not bear their usual signification. " It is not right to say that a judge is to affect not to know what everybody else knows — the ordinary use of the English language." ' The fact that actual damage has in fact followed from the publication is immaterial in considering what is the true construction of the libel.' 1 Com. V. Kneeland, 30 Pick. (Mass.), 2 Brett, J., 1 C. P. D., 573. a08; Vanderlip v. Boe, 23 Pa. St., sloj-^ Coleridge, C. J., 8 0. P. D., 83. 150. WORDS OBVIOUSLY INNOCENT. 287 § 24. Illustrations — Digest of American Cases.— (1) Libel. 1. It is no libel upon a dealer in coal in L., who had advertised genuine Franklin coal for sale, to publish the following advertisement: "Caution. The subscribers, the only shippei-s of the true and original Franklin coal, notice that other coal dealers in L. than our agent, J. S., advertise Franklin coal. We take this method of cautioning the public against buying of other parties than J. S. if they hope to get the genuine article, as we have neither sold nor shipped any Fi-anklin coal to any party in L. except our agent, J. S." Boynton v. Eemington et al., 85 Mass., 397. 2. The plaintiffs claimed to be the owners of a valuable patent-right and were engaged in the manufacture of the patented articles; and that the de- fendants had printed, published and circulated a circular or notice claiming to be the owners of various letters-patent securing such right and exclu- sively authorized to make and sell such patented articles, and threatening prosecutions for infringements of such rights, in consequence whereof the plaintiffs were injured in their trade, etc. In answer the defendants set up their letters-patent and alleged that plaintiffs' trade was an infringement upon the rights conferred. Tlie court found the issuing of the circular and that it was injurious to the plaintiffs' business, but that it was issued in good faith, with the sole purpose of advising the public of what they con- sidered their rights. Hovey v. Eubber T. P. Co., 57 N. Y., 119. 3. To publish of a saloon-keeper: "To get rid of a just claim in court he set up as a defense the existing prohibitory law. We feel it our duty to make such conduct publicly known in order to caution beer brewers and liquor dealers," was held not to be libelous. Horner v. Englehardt, 117 Mass., 539. 4. It is not libelous to allege of a husband in charge of a public office that his wife was given work in the office and paid for it in her maiden name, unless it is rendered so by some extrinsic matter properly alleged. It is not unlawful for a woman to use her maiden name after marriage, or, indeed, for persons to do business by any names they may choose to assume. Bell V. Sun Printing Co., 42 N. Y. Superior Ct., 567; 3 Abb. (N. Y.) N. Cas., 157. 5. To publish of one that he has acted in business matters under a con- tract or obligation entered into by an assumed name is not libelous. Bell V. Sun Printing Co., 43 N. Y. Superior Ct., 567; 3 Abb. (N. Y.) N. Cas.,157. (3) Slander. 1. To charge a female with self-pollution is not actionable in itself, as the charge does not amount to the imputation of an indictable offense. Anony- mous, 60 N. Y., 263. 3. To say of one he is a man of bad character in the neighborhood in which he lives, as regards truth and veracity, and that the speaker would not believe him under oath, is not actionable in itself. Studdord v. Trucks, 81 Ai-k., 726. § 25. Digest of English Cases.— (1) Libel. The plaintiff was a certificated art master, and had been master at the W.-jlsall Science and Art Institute. His engagement there ceased in June, 288 CONSTEDCTION OF LANGUAGE. 1874, and he then started and became master of another school, which was called " The Walsall Government School of Art," and was opened In August. In September the following advertisement appeared in the Walsall " Ob- server," signed by the defendants as chairman, treasurer and secretary of the institute respectively : " Walsall Science and Art Institute. The public are informed that Mr. Mulligan's connection, with the institute has ceased, , and that he is not authorized to receive subscriptions on its behalf." The declaration set out this advertisement with an innuendo — " meaning thereby that the plaintiff falsely assumed and pretended to be authorized to receive subscriptions on behalf of said institute." At the trial Quain, J., directed a nonsuit on the ground that the advertisement was not capable of the defamatory meaning attributed by the innuendo. Held, that the non- suit was right ; that the advertisement was not capable of any defamatory meaning. Mulligan v. Cole and others, L. R., 10 Q. B., 549: 44 L. J., Q. B., 153; 33 L. T., 13; Brent v. Spratt, "Times" foi; February 3, 1883; Raven V. Stevens & Sons, 3 Times L. R., 67. (3) Slander. 1. Words complained of: '' We are requested to state that the honorary secretary of the Tichborne Defense Fund is not and never was a captain in the royal artillery, as he has been erroneously described." Innuendo, that the plaintiff was an impostor, and had falsely and fraudulently represented himself to be a captain in the royal artillery. Bovill, C. J., held that the words were not reasonably capable of the defamatory meaning ascribed to them by the innuendo, and nonsuited the plaintiff. Held, that the nonsuit was right. Hunt v. Goodlake, 43 L. J., C. P., 54; 39 L. T., 473. 2. " lie was the ringleader of the nine-hours' system.'' " He has ruined the town by bringing about the nine-hours' system," etc. The declaration contained no innuendo, and no sufficient averment that the words were spoken of the plaintiff in the way of his trade, and on demurrer was held bad. Miller v. David, L. R., 9 C. P., 118; 43 L. J,, C. P., 84; 33 W. R., 333; 80 L. T., 58. CHAPTEE XY. INTERPRETATION OF DEFAMATORY LANGUAGE. § 1. The General Rule. 3. A General Rule of Constructipn — Chief Justice Shaw. 3. The Province of the Court. 4. The Duty of the Court and Province of the Jury. 5. The Rule Stated by McAllister, P. J. 6. Illustrations — Digest of American Cases. 7. Digest of English Cases. 8. Defamation Connected with Extrinsic Matters — Proof. 9. Defamatory Words Explained with Reference to Particular Transac- tions. 10. Illustrations — American Cases: A New York Case, Van Rensselaer V. Dole, 1 Johns. Cas., 379. An Illinois Case, Oyer v. Greider, 15 111., 37. A New York Case, Phillipps v. Barber, 7 Wend., 439. 11. Digest of American Cases. 13. Digest of English Cases. 13. Words in Common Parlance. 14. Illustrations — American Cases : A Minnesota Case, Blakeman v. Blakeman, 31 Minn., 396. 15. Digest of American Cases. 16. Technical Terms and Cant Phrases — The Rule by Shaw, 0. J. 17. Illustrations — Digest of American Cases. 18. Digest of English Cases. * 19. Particular Expressions, Spoken Ironically or Otherwisei 20. Illustrations — Digest of American Cases. 31. Digest of English Cases. 33. The Intent Immaterial. 33. Illustrations — Digest of American Cases. 24. The Former Rule in England. 35. The Rule Abolished. 26. Progress of the Law. 27. Defamatory Words to be Taken in the Sense which Fairly Belongs to Them. 38. The Rule of Construction. 29. Defamatory Matter to be Taken as a Whole. 30. Illustrations — American Cases : A New York Case, Dexter v. Tabor, 12 Johns., 239. 31. Digest of American Cases. 33. Digest of English Cases. 33. Witnesses Not to Gi,ve Their Understanding of the Meaning of De- famatory Words . 19 290 INTEEPEETATION OF DEFAMATORY LANGUAGE. ^' 34. Illustrations — American Cases : A Minnesota Case, Gribble v. Pio- neer Press Co., 37 Minn., 277. A Massachusetts Case, Snell v. Snow, 54 Mass., 278. A New York Case, Van Vetchin v. Hopkins, 5 Johns., 211. An Iowa Case, Anderson v. Hart, 68 Iowa, 400. 35. Unsettled State of the Law. §1. The General Rule. — Where the defamatory matter is plainly unambiguous the question of its meaning and charac- ter is for the court; but where its meaning is ambiguous then the question is for the jury.* § 2. A General Rule of Construction. — Shaw, G. J.: It is a general rule of construction in actions of slander, indictments for libel and other analogous cases, where an offense can be committed b}^ the utterance of language, orally or in writing, that the language shall be construed and understood in the sense in which the w^riter or speaker intended it. If,, there- fore, obscure and ambiguous language is used, or language which is figurative or ironical, courts and juries will under- stand it according to its true meaning and import, and the sense in which it was intended to be gathered from the con- text, and from all the facts and circumstances under which it was used.^ § 3. The Province of the Court. — If there is any doubt of the meaning of a publication claimed to be libelous, so that extrinsic evidence is needed to determine its character as to its being actionable or not actionable, it is then a question for the jury, under proper instruction from the court, to find its true character and significance. If the article standing alone is plainly libelous, or manifestlj'^ wanting in any defamatory meaning, it is the duty of the court to declare either way and instruct the jury accordingly.' § 4. A Rule of Construction — Duty of the Court — Prov- ince of the Jury. — If the words are not reasonably suscepti- ble of any defamatory meaning, the judge at the tria,l will •Gabe v. McGinnis, 68 Ind., 538; v. Milne, 4 Bing., 195; Wagaman v. Over V. Sohiffling, 103 Ind., 191; Meyers. 17 Md., 183; Pittock v. Donaghue v. Goffy, 1 Atl. Rep., 553; O'Niel, 63 Penn., 353; Thompson v. Hosier v. StoU, 20 N. E. Rep., 754. Grimes, 5 Ind., 385; Mix v. Wood- 2 Com. V. Kneeland, 30 Pick. (37 ward, 13 Conn., 262; Haire v. Wil- Mass.), 216. son, 9 B. & C, 643; Boureseau v. 'Hunt V. Bennett, 19 N. Y., 173; Detroit Eve. News (Mieh.), 30 N. W. Haight V. Cornell, 15 Conn., 74; Levi Rep., 376. RULE OF CONSTRICTION. 291 direct a nonsuit. But if the words are reasonably susceptible of two constructions, the one an innocent, the other a libel- ous construction, then it is a question for the jury which con- struction is the proper one; ^ and if the judge at the trial non- suits tlje plaintiff it will be error.^ The whole libel should be submitted to the jury. A word at the end may alter the whole meaning.' So if in one part appears something to the plaint- iff's discredit, in another something to his credit, the " bane " and the " antidote " should be taken together. The law does not dwell on isolated passages, but judges of the publication as a whole.* § 5. The Rule Stated by McAllister, P. J.— " Where the words of an alleged libelous publication are not reasonably susceptible of any defamatory meaning the court is justified in sustaining a demurrer to the declaration. But if they are rea- sonably susceptible of two constructions, the one innocent and the other libelous, then it is a question for the jury which con- struction is the proper one. In such a case if the defendant demurs to the declaration his demurrer will be overruled." Or, in other words, the rule may be stated thus: It is for the court to decide whether a publication is capable of the mean- ing ascribed to it by an innuendo, and for the jury to determine whether such meaning is truly ascribed.' § 6. Illustrations — Digest of American Cases. — 1. In slander words are to be understood by courts and juries according to their plain and natural import — according to the ideas they are calcu- lated to convey to those to whom they are addressed ; and where doubts arise the jury are to decide whether the words are used maliciously and with a view to defame — this being a question of fact to be determined from all the concomitant circumstances. The court is to determine whether such words taken in the malicious sense imputed to them can alone, or by the aid of the circumstances stated upon the record, form the legal basis of an action. Demarest v. Haring, 6 Cow. (N. Y.), 76. ' Jenner and another v. A'Beckett, C. J., in R. v. Reeves, Peake, Add. L. R., 7 Q. B., 11; 41 L. J., Q. B., 14; Cas., 84: Fitzgerald, J., in R. v. SuUi- 20 W. R., 181 ; 25 L. T., 464. van, 11 Cox, C. C, 58. 2 Hart and another v. Wall, 3 C. P. » Hays v. Mather, 15 Brad. (El.), 30 ; D.. 146; 46 L. J., C. P., 227; 25 W. Odgers on L. & S., 26; Blagg v. R., 373. Sturt, 59 E. C. L., 899; Jenner v. 'Hunt V. Algar, 6 C. & P., 245. A'Beckett, L. R., 7 Q. B., 11 ; Mulligan e proved as being essential to the nature and identity of the charge. And where the extrinsic matter is required to be proved with its connection with the words spoken as a whole, in order to sup- port the cause of action it is indispensable that such matter should be submitted to and found by the jury to exist as al leged, in order to find a verdict for the plaintiff.' § 9. Defamatory Words Explained by Reference to Par- ticular Transactions. — Defamatory words which are appar-" ently actionable, but which are susceptible of an explanation by reference to some particular transaction to which they were known by those in whose presence they were spoken to refer, are to be construed accordingly and with reference to such transaction. But the burden of proof is always on the defend- ant to show that they were so known to refer by the listeners.- § 10. Illustrations — American Cases. — 1. A New York Case: ' yaw iJenssetaeru Dole, 1 Johns. Cas., 279 (1800). The declaration charged the defendant with speaking the following words ; "John Keating is as damned a rascal as ever lived, and all who joined his party and procession on the fourth of July [meaning the said plaintiff, John Van Eensselaer, and the party and procession in which the said John I Heller v. Howard, 11 Brad. (111.), 72 N. Y., 418; Thompson v. Bernard, 559; 2Starkie on Ev., part 1, 629; 3 1 Camp., 48; Christie v. Howell, Selw. N. P.; 2 Greenleaf , Ev., §413; Peake, 4; Hankinson v. Bilby, 2 C. Strader v. Snyder, 67111., 404; Young & K., 440; Quin v. O'Gara, 2 E. D. V. Gilbert, 93 III., 095. S. (N Y.), 338; Norton v. Ladd, 5 N. 2Van Rensselaer v. Dole, 1 John- H., 209; Williams v. Cawley, 18 Ala., son's Cases (N. Y.), 279; Hays v. Ball, 206; Young v. Gilbert, 93 111., 595. ILLUSTEATIONS — AMERICAN CASKS. 293 Keating acted as captain on the said fourth day of July], are a set of black- hearted highwaymen, robbers and murderei-s." At the trial the words were proved to have* been spoken as alleged. On the part of the defendant it appeared that on the day previous to the speaking of the words there had been a public procession to a church in Lansingsburgb, where the parties resided, and that Keating commanded an artillery company which formed a part of the procession, attended with music. That a Mr. Bird claimed one of the instruments used, and went to the church to demand it. It was not given up and an affray ensued, in which Mr. Bird was dangerously wounded. It also appeared that the conversation in which the words were spoken was understood by those who heard it to relate to the transactions of the preced- ing day, and that the terms "highwaymen, robbers and murderers" were used in reference to the treatment of Mr. Bird in withholding the instru- ment and in wounding him. The jury having found a verdict for the plaintiff, on appeal in the supreme court it was held that as the words spoken by the defendant were clearly understood to applj' to the transac- tions of the preceding day, and as these were known not to amount to the charge which the words would otherwise import, the verdict was set aside. 2. An Illinois Case: Ayersv. Grider, 15 111., 87 (1853). Grider was a town constable in il. , and as such had a few days before arrested one Ayers in the public square for a breach of the town ordinances and took away his knife and money, which he afterwards gave to one Pul- ley. Grider was in Pulley's store when Ayers came in and said to him : " Go and take up those men in the public square 1 " Grider replied he would not. Ayers rejoined, " You shall, for you took me up and stole my knife and money."' Grider said, "I handed Pulley your knife,'' etc. The charge of steal- ing was understood to relate to the arrest. Grider brought a suit for speak- ing the words. On the trial the court refused to instruct the jury "that if the words proved to have been spoken .by the defendant of the plaintiff were spoken about and in relation to a known act, and that act in law is not a felony, which is known to the by-standers, they will find the defend- ant not guilty." On appeal. Judge Scales held that the instruction was clearly sustained by decisions laying down the rule contained in it, and should have been given by the court, as the proofs clearly presented a case for its application. Citing Thompson v. Bernard, 1 Camp. R, 48; Brite v. Gill, 1 & 2 Monroe R., 65; Gill v. Bright, 6 Monroe, 130; Van Rensselaer V. Dole. 1 Johnson's Cases (N. Y.), 279; EJie v. Brooks, 3 Whart. Dig., 598, § 36; Christie v. Cowell. Peake's N. P. C, 4; Swag v. Gee, 3 Coke's R., 300; Jackson v. Adams, 29 Eng. C. L. R., 871. 3. A Xew York Case: Phillips v. Barber, 7 Wend., 439 (1830). This was an action for slander tried at the Herkimer circuit. The words spoken in a public meeting were, "You have stolen my wood." All the witnesses examined on the trial testified that they understood the charge to relate to a transaction not felonious. It appeared that the plaintiff had purchased of one Rathbone a quantity of wood, cut on the land of the de- fendant, who bad a pile of wood near the wood belonging to Rathbone; the plaintiff, supposing the wood belonging to defendant was included in the quantity purchased by him of Rathbone, took a pait of it, but discov- erino- his error he admitted he had taken it under a mistake, and made no 294: INTEEPEETATION OF DEFAMATOEY LANGUAGE. further claim to the wood belonging to the plaintiff. After which admis- sion, known by the defendant to have been made, the defendant made the charge complained of in the declaration. The witnesses testified that they understood the charge to relate to the above transaction; the counsel for the defendant insisted that the plaintiff was not entitled to sustain his ac- tion, the words being spoken in reference to a transaction which did not amount to larceny. But the judge ruled that the words being actionable in themselves, the defendant was bound to show that they were spoken in reference to property which could not be the subject-matter of larceny, or that the transaction alluded to was so explained at the time of the speak- ing of the woi-ds ; tbat the hearers must have known that the charge did not amount to larceny ; and that unless the defendant had brought himself within those exceptions the plaintiff was entitled to a verdict. The de- fendant excepted. The jury found for the plaintiff, and the defendant moved to set aside the verdict. By the Court, Nelson, J. : We perceive no objection to the charge of the judge or any essential difference in principle between the law as laid down by him and that which was insisted on by the counsel for the defendant. The words were actionable in themselves, and -would only be deprived of that character by an explanation by the defendant at the time showing to the hearers that he did not intend a charge of larceny. It of course is not necessary that the explanation should be made by the defendant at the time of speaking the words, if all the hearers are in possession of the facts alluded to when the words were spoken, because this would be sacrificing to the terms of the rule its substance and meaning. It is enough that the bearers understood at the time to what the defendant referred, and that such reference gave to the words an innocent meaning. The case states that the witnesses who proved the charge all stated that it referred to the taking of the wood of the defendant by the plaintiff (which, as detailed in the case, was an innocent transaction), and that they so understood the charge at the time it was made. Whether the explanation as to the taking of the wood was made at the time of the charge of the defendant, or whether the witnesses understood the transaction from some other source and at some other time, does not appear. If they did not obtain the explanation at the time, but understood it in some other way, though they were in pos- session of facts which gave the words an innocent meaning, others present might not be ; and it is fairly to be inferred from this case that others were present. It appears that after the defendant knew that the plaintiff had taken the wood through mistake, believing he had bought it, he persisted in making the charge of stealing and did make the one complained of, clearly intending to deny the explanation given, and to characterize it as a felony and in relation to a transaction which was a subject of felony. The case, we think, was fairly submitted to the jury, and there is no cause for disturbing the verdict. § 11. Digest of American Oases. — 1. In an action of slander the words, " You are a thief ; " " You are no bet- ter than a thief ; " " You are a confidence man,'' were proved to have been spoken with reference to the plaintiff's conduct in writing a letter to a third person to know if the latter had been paid a sum of money which the de- ILLUSTEATIONS — DIGEST OF ENGLISH CASES... 295 feudaut claimed to have been paid on behalf of the plaintiff, from whom he had demanded its repayment. Held, that the words; though actionable per se, yet if spoken in relation to a subject as to which no larceny or fel- ony was capable of being committed, or was committed, were actionable. Accordingly, evidence was admissible to show that they were not intended to impute to the plaintiff a felony or other infamous crime. Fawsett v. Clark, 48 Md., 494. 2. The rule that one will not be held liable for a slander, if the poisonous words are accompanied with an antidote, was applied where a lessor ac- cused his lessee of stealing corn, at the same time explaining to his heai-ers that the crop was security for the payment of the rent, and showing that the speaker honestly believed that a clandestine appropi-iation thereof by the lessee before a certain date was larceny and not merely a breach of trust. Hall v. Adkins, 59 Mo., 144. 3. The complaint charged the defendant with stating that the plaintiff adulterated sugar, that he cheated the government and swore he did not do so. It was held that these three charges, neither singly nor collectively, are actionable in themselves, but may become so by reason of the surround- ing circumstances, to be properly pleaded and proved ; and that these sur- rounding circumstances not being set forth, the meaning of the words can- not be enlarged by an innuendo. Havemeyer v. Fuller, 60 How. (N. T.)Pr., 316. 4. The charging a person with being a thief, where from the circumstances the words must have been understood to refer to the person's having ob- tained money by fraud simply, is not actionable as imputing larceny. Brown V. Meyers, 40 Ohio St., 99. 5. In an action for slanderous words spoken of plaintiff, it appearing that during a heated altercation defendant called plaintiff a "thieving puppy and villain," held, that it was properly shown that plaintiff immediately committed a severe assault upon defendant, this being part of the res gestcB, and that defendant being sixty years old and the father-in-law of plaintiff, who was thirty-five, a verdict for defendant not only would not be dis- turbed, but was eminently just. Young v. Bridges, 34 La. Ann., 333. § 12. Digest of English Cases.— 1. Where the defendant said, "'Thompson is a damned thief, and so was his father before him, and I can prove it ; " but added, " Thompson re- ceived the earnings of the ship and ought to pay the wages," Lord Ellen- borough held that the latter words qualified the former, and showed no felony was imputed, the person to whom the words were spoken being the master of the ship and acquainted with all the circumstances referred to. Thompson V. Bernard, 1 Camp., 48; Bittridge's Case, 4 Rep., 19; Cristie v. Cowell, Peake, 4; Day v. Robinson, 1 A. & E., 554; 4 N. & M., 884. 2. Defendant stated publicly that plaintiff had been detected taking dead bodies out of the church-yard and fined, etc. He meant it as a joke; but there was no evidence that the-by-standers so understood it. The court set aside a verdict for the defendant. Per Joy, C. B. : " The principle is clear that a person shall not be allowed to murder another's reputation in jest. But if the words be so spoken that it is obvious to every by-Btand«r 296 JNTBEPEETATlbN OF DEFAMATOEY LANGUAGE. that only a jest is meant no injury is done, and consequently no action would lie." Donaghes v. Hayes, Hayes (Irish Exch.), 265. 3. Where words are used which clearly import a criminal charge (as " You thief," or " You traitor "), it is still open to the defendant to show if he can that he used them merely as vague terms of general abuse, and that the by-standers must have understood him as meaning nothing more than "You rascal" or "You scoundrel." When such words occur in a string of non-actionable epithets or in a torrent of vulgar abuse the jury may reasonably infer that no felony was seriously imputed. If however, the jury put the harsher constructions on defendant's language no new trial will be granted ; for it is a question entirely for them. Minors v. Leeford, Cro. Jac, 114; Penfold v. Westcote, 3 Bos. & P. N. R., 335. 4. Where the defendant said to the plaintiff in the presence of others, " You are a thief, a rogue, and a swindler," it was held that the defendant could not call a witness to explain the particular transaction which he had in his mind at the time, since he did not in any way expressly refer to it in the presence of his hearers. Martin v. Loei, 3 F. & F., 654; Read v. Am- bridge, 6 C. & P., 308; Hankinson v. Bilby, 16 M. & W., 443; 2 C. & K., 440. 5. Words complained of : " You stole my apples." The defendant cannot be allowed to state that he only meant to say, " You have tortiously removed my apples under an unfounded claim of right." The by-standers could not possibly have understood from the word used that a civil trespass only was imputed. Devrill v. Hulbert (Jan. 35, 1878); Odgera on L. & S., 108. 6. Words complained of: " Thou hast killed my wife." Defendant's wife was still alive, and the by-standers knew it. Held, that plaintiff was not put " in any jeopardy, and so the words vain, and no scandal or damage to the plaintiff." Snag v. Gee, 4 Rep., 16, as explained by Parke, B., in Heming V. Power, 10 M. & W., 569. 7. But where the words complained of are: " Thou art a thief; for thou tookest my beasts by reason of an execution, and I will hang thee," no ac- tion lies, for it is clear that the whole sentence taken together imports only a charge of trespass. Wilk's Case, 1 Roll. Abr., 51; Smith v. Ward, Cro. Jac.) 674; Sibley v. Tomlins, 4 Tyrw., 90. § 13. Words Used in Common Parlance.— Where the slan- derous words contain a word or phrase in a foreign language which has in common parlance, among the people who speak that language, a meanjng somewhat different from that given by lexicographers, and is commonly understood by them in common speech, it is competent to prove that fact. It is but an application of the general rule that words are to be con- strued in the sense in which the hearers would naturally un- derstand them.^ 1 Watcher v. Quenzer, 29 N. Y., 547; Blakeman v. Blakeman, 81 Minn 896; 18 N.W. Rep., 103. TECHNICAL TEEMS AND CANT PHKASES. 297 § 14. Illustrations — Ainerican Cases.— 1. A Minnesota Case: Blakeman v. Blakeman, 31 Minn,, 896. The words constituting the cause of action were spoken in the German language to a pei-son named Kock, and as charged in the complaint were : " Mein sohn hat se nicht verf uehrt ; das ist den da Weber," which being translated into the English' language is alleged to signify, " My son did not get her pregnant; it is from that one [meaning G. E.] there." Kock did not speak English. As a witness she was examined through an inter- preter. As translated her evidence was that she had a conversation with the defendant soon after his son and his wife, the plaintiff, had parted (it appeared from the evidence they had separated through some family diffi- culty), in which the defendant said he was having trouble with his childi-en, and that his son had not seduced (verf uehrt) her ; that it was opposite, pointing to the side of the street where G. R. lived. Evidence was also of- fered against the defendant's objection and exception showing that the word "verf uehrt," used by the witness, and translated by the interpreter "seduced," while primarily and etymologically meaning to mislead or lead estraji. is used in common parlance among Germans, and is so understood by them, in the sense of "getting in the family-way by another man." The witness Kock, to whom the words were addressed, also testified, under objection and exception, that she thought the defendant meant G. R, ; that that was what she understood at the time, and that she so understood be- cause he lived across the street where defendant pointed. On appeal it was held that as the word " verfuehrt" is a word in a foreign language it was competent to show that it had among the people who spoke that lan- guage a meaning somewhat different from that given to it by the lexicog- raphers, and to show what that meaning was. . And as the slanderous charge was not made in direct terms, but by equivocal expressions,, insinu- ations and gestures, it was competent for witnesses who heard and saw them to state what they understood by them and to whom they under- stood them to be applied. § 15. Digest of American Cases. — 1. When it is desired to get at the peculiar or extraordinary meaning of language alleged to be libelous, the witness called to show a usage that gives a peculiar significance to the language used should first be asked whether there be such meaning expressed by the words. If yes, he may then state the means and extent of his knowledge thereupon, and if his knowledge appears adequate, he may be asked, "What did you understand by the words employed?" Newbold v. J. M. Bradstreet & Son, 57 Md., 38. § 16. Technical Terms and Cant Phrases — Shaw, C. J.— The rule is a sound one that the law cannot shut its eyes to what all the rest of the world can see ; and let the slanderer disguise his language and wrap up his meaning in ambiguous givings out as he will, it shall not avail him, because courts will understand language, in whatever form it is used, as all mankind understands it. This is a correct rule and must be regarded as a most sound and salutary one, to be acted upon 298 INTEEPEETATION OF DEFAMATOEY LANGUAGE. by the court, and to be fylly explained and enforced upon the trial of the facts before the jury. So language may be used ambiguously, or ironically, or technically, or conventionally. What are called cant terms and flash language are of the latter sort, where, among a particular class of persons, by usage or convention, words are used in a particular sense. But when- ever this is the fact, it is in consequence of the existence of some usage or agreement, of some report in circulation of the time, place or manner in which the conversation was held ; in short, of some fact capable of being averred in a traversable form, so that it may be put in issue and proved or disproved.' § 17. Illustrations — Digest of American Cases. — 1. In an action for libel the court may explain to the jury such expres- sions, occurring in the libelous publication, as "crim. con." and "in fla- grante delicto," and no colloquium or innuendo is necessary to point out their meaning. Gibson v. Cincinnati Enquirer, 2 FliiJ. C. Ct., 131. 2. The defendant, the editor of a newspaper, owed plaintiff money under an award; and wrote and published in his newspaper these words: "The money will be forthcoming on the last day allowed by the award, but we are not disposed to allow him to put it into Wall street for shaving pur- poses before that period." " Shaving" in New York means (1) discounting bills or notes ; (2) fleecing men of their goods or money by overreaching, extortion and oppression. The declaration contained no innuendo alleging that the words were used in the second defamatory sense. Held no libel, on demurrer. Stone v. Cooper, 2 Denio (N. Y.), 293. 3. Where an action for libel is based on the use of a certain word in a publication, and it is clear from a consideration of the whole publication that such word was used in its popular and ordinary meaning and not in a technical sense, the court should so decide, and no evidence should be per- mitted to go to the Jury. Thus, in an action against the author of a publi- cation characterizing a physician's treatment of a certain case as " mal- practice," an instruction that the publication was actionable, if it be clear that the word " malpractice" was not used in a technical sense, was held to be erroneous. Rodgers v. Kline, 56 Miss., 808. § 18. Digest of English Cases.— ]. Libel complained of: "There are very few persons in society who do not look upon the whole affair to be got up for a specific occasion, and con- sider .that it has been neither more nor less than a ' plant.' We have heard it roundly asserted that a clerk of Mr. Hamer, the notorious lawyer, was placed under a sofa at his lordship's residence when the Earl of Cardigan called there." The indictment stated " that the said Thomas Holt used the words 'a plant' for the purpose of expressing and meaning, and the said words used by him were by divers, to wit, all the persons to whom the said libel was published, understood as expressing and meaning, an artful and 1 Carter v. Andrews, 33 Mass. , 1. TECHNICAL TEEMS AND CANT PHEASES. 299 wicked plan and contrivance made and entered into by the said William Paget, Esq., and other persons, by false and unfounded testimony and a wrongful and wicked perversion of facts to make out, support and establish the said charge, and by concert and arrangement falsely to fix upon the said earl the commission of the said trespass and assault for the purpose of obtaining divers of the moneys of the said earl to the use of the said "Will- iam Paget, Esq.," and concluded with the following innuendo: "Thereby then and there meaning that the said William Paget, Esq., had with other persons artfully and wickedly planned and contrived to make a false and unfounded charge against the said earl of his having been guilty of the said trespass and assault upon the said wife of the said William Paget, Esq., and to make out, support and establish such charge by false and unfounded tes- timony and a wicked and wi-ongful perversion of facts for the purpose of extorting and obtaining from the said earl divers of his moneys to the use of the said William Paget, Esq." A reporter for one of the London news- papers was called to define " a plant," and his evidence justified the innu- endo. The recorder left it with the jury whether they were satisfied that the word " plant " bore the meaning attributed to it by the prosecution ; if so, the passage was libelous. Verdict, guilty. R. v. Holt, 8 J. P., 213. 3. Words complained of : " You are a hunter." No innuendo. Willes, J., nonsuited the plaintifE 6n the ground that the word had no meaning at all, and could not therefore be defamatory in ordinary acceptation ; and he re- fused to allow the plaintiff to be asked what the word " hunter " meant. Aliter, had there been an innuendo averring a defamatory sense to the word " hunter." Rawlings et ux. v. Norbury, 1 F. & F., 341. 3. Words spoken to an attorney : "Thou art a daffadowndilly." Innu- endo, meaning thereby that he is an " ambidexter," i. e., one who takes a fee from both sides, and betrays the secrets of his client. Held, that an action lay. Anon. (Exch.), 1 Roll. Abr., 55; Annison v. Blofield, Carter, 314 4. Pollock, C. B., thought the word " truckmaster " required no innuendo to explain its meaning, as it " is composed of two English words intelli- gible to everybody." Homer v. Taunton, 5 H. & N.,.661; 29 L. J., Ex., 318; 8 W. R., 499; 2 L. T., 512. But so are "blackleg" and " blacksheep," and these words do require an innuendo. M'Gregor v. Gregory, 11 M. & W., 287: 13 L. J., Ex., 204: 2 Dowl. (N. S.). 769; O'Brien v. Clement, 16 M. & W., 166; 16 L. J., Ex., 77; Barnett v. Allen, 1 F. & F., 125; 27 L. J., Ex., 413; 4 Jur. (N. S.), 488; 3 H. & N., 876; Odgers on L. & S., 111. 5. It is actionable to say, " Thou art a clipper, and thy neck shall pay for it." " For though 'clipper' is general, and may be intended a clipper of wool, cloth, etc., yet the following words show it to be intended of clipping for which he shall be hanged." Naben v. Miecock, Skin., 183. 0. It is actionable to say of a stock-jobber that "He is a lame duck;" innuendo, " meaning thereby that the plaintiff had not fulfilled his con- tracts in respect of the said stocks and funds " (stock- jobbing being now legalized by 23 and 24 Vict., ch. 28). Morris and Langlade, 2 Bos. & Pul., 2S4. 7. It is libel on L. to write and publish of him that he is one of " a gang who live by card-sharping," there being an innuendo, " meaning thereby 300 INTEEPBETATION OF DEFA.%rATOKY LANGUAGE. that L. is a swindler and a cheat, and lives by cheating or playing at cards, and that he and B. and G. had, previous to the libel, conspired to- gether in cheating divers persons in playing at cards." Reg. pros. Lambri V. Labouchere, 14 Cox, C. C, 419. 8. The defendant charged the plaintiff, a pawnbroker and Bilversniith, with " duffing ; " an innuendo, " meaning thereby the dishonorable practice of furbishing up damaged goods and pledging them with other pawn- brokers as new," was held good. Hickinbotham v. Leach, 10 N. & W,, 361 ; 2 Dowl. (N. S.), 270. 9. The words, "He is mainsworn," were spoken in one of the northern counties, where "mainsworn" is equivalent to " perjured" (forsworn witli his hand on the book). Held actionable. Slater v. Franks, Hob., 126. And see Coles v. Haviland, Cro. Eliz., 250; Hob., 12. § 19. Particular Expressions Spoken Ironically or Other- wise — Shaw, C. J. — In illustrating the rule that courts will understand language as the rest of the world understands it, it may be proper to add that when particular expressions do assume a defamatory and slanderous character — that is, when spoken ironically or otherwise — they do impute a crime, in con- sequence of their connection with other words used at the same time; and if all the words thus taken together do impute such crime the court will so understand it, and will, as a conclu- sion of law, hold them to be actionable in themselves without averments or innuendoes, although none of the words sepa- rately used are descriptive of such crime, either in a legal or popular definition. But to enable the court to come to this conclusion, all the language which was used at the time and from which such conclusion results must be set out, and if traversed must be proved.' § 20. Illustrations — Digest of American Cases.— 1. In an action of libel for ambiguous or ironical words, evidence is com- petent to show the application and interpretation put on the words by the plaintiff's acquaintances ; and evidence of subsequent hostile publications and oral declarations is admissible to show the animus. Knapp v. Fuller, 55 Vt., 311; 45 Am. Rep., 618. § 21. Digest of English Cases.— 1. Ironical advice to the lord keeper by a country parson, " to be as wise as Lord Somerset, to manage as well as Lord Haversham, to love the church as well as the Bishop of Salisbury," etc., is actionable. R. v. Dr. Brown, 11 Mod., 86; Holt, 425. 2. Ironical praise may be a libel ; thus, calling an attorney " an honest lawyer." BoydeU v. Jones, 4 M. & W., 446; 1 H. & H., 408; 7 Dowl., 210. 'Carter v. Andrews, 33 Mass., 1; Woolnoth v. Meadows, 5 East, 463; Roberts v. Camden, 9 East, 93. INTENT IMMATERIAL. 301 3. It is actionable to say ironically, "You will not play the Jew or the hypocrite." R. v. Garret (Sir Baptist Hicks' Case), Hob., 215 ; Popham, 139. § 22. Intent Immaterial.— In actions for defamation it is immaterial what meaning the speaker intended to convey. He may have spoken without any intention of injuring another's reputation, but if he has in fact done so he must compensate the party. He may have meant one thing and said another; if so he is answerable for so inadequately expressing his mean- ing. If a man in jest conveys a serious imputation he jests at his peril.* Or he may have used ambiguous language which to his mind was harmless, but to which the by-standers attrib- uted a most injurious meaning; if so he is liable for the inju- dicious phrase he selected. What was passing in his own mind is immaterial save in so far as his hearers could perceive it at the time. Words cannot be construed according to the secret intent of the speaker.^ " The slander and the damage consist in the apprehension of the hearers." '' § 23. Illustrations — Digest of American Cases. — 1. In an action by M., a clerk in the store of S., against S. and wife, for her alleged words to O., that if she " had not seen the shoes on O.'s feet S. would have never received a cent for them," meaning that M. had embez- zled the shoes, it was held that she could not be permitted to testify that she only meant that M. had forgotten to charge the shoes. Sternan v. Marx, 58 Ala., 608. 2. In an action for slander the words proved were, "when he was high- way commissioner he stole one thousand dollars from the town." The de- fendant attempted to show that he referred only to the fact of the plaintiff's failure to produce vouchers for that sum in accounting. None of the plaints iflfs witnesses testified that the plaintiff explained the words, and only one that he understood them to relate to money which came to the plaintiff's hands as commissioner. It was held that the ordinary import of the words imputed larceny, and that a nonsuit was properly refused. It was for the jury to determine in what sense the words were uttered. Hayes v. Ball, 72 N. Y., 418. § 24. The Former Rule in England. — Formerly, however, the rule was very different. In England, after a verdict for the plaintiff, the defendant constantly moved in arrest of judgment, on the ground that a defamatory meaning was not shown on the record with sulBcient precision, or, as it soon came to be, on the ground that it was just possible, in spite of 1 Berry v. Massey, 104 Ind., 486; 3 2 Hankinson v. Bilby, 16 M. & W., N. E. Rep., 942 ; Donoghue v. Hayes, 445 ; 3 C. & K, 440. Hayes (Irish Exch.), 266. ' Fleetwood v. Curley, Hobart, 268. 302 INTBEFEETATION OF DEFAMATOET LANGUAGE. the record, to give the words an innocent constraction. For it was said to be a maxim that words were to be taken in miti- ori sensu (in the more lenient sense) whenever there were two senses in which they could be taken. And in these early times the English courts thought it their duty to discourage actions of slander. They would, therefore, give an innocent meaning to the words complained of, if by any amount of legal ingenu- ity such a meaning could be put upon them ; and would alto- gether disregard the plain and obvious signification which must have been conveyed to by-standers ignorant of legal tech- nicalities. For example: Where a married woman falseh' said, " You have stolen my goods," and the jury found a verdict for the plaintiff, the court entered judgment for the defendant on the ground that a married woman could have no goods of her own, and that therefore the words conveyed no charge of felony .^ Again, where the words complained of were: "He hath deliv- ered false evidence and untruths in his answer to a bill in chan- cery," it was held that no action lay ; for though every answer to a bill in chancery was an oath, and was a judicial proceed- ing, still in most chancery pleadings ''some things are not ma- terial to what is in dispute between the parties," and "it is no perjury, although such things are not truly answered ! " ^ § 25. The Rule Abolished.— The old rule that words should be construed in mitiori sensu (in the more lenient sense) has long since been exploded, and it is now well settled that they are to be taken in that sense in which they would be under- stood by those who hear or read them. The court will neither torture them into guilt nor explain them into innocence, but take them in their usual acceptation and understand them ac- cording to their obvious import and meaning. Therefore, whatever mode of expression is used, if an assertion of guilt is implied or intended, the words will be actionable; as — For example: " I have every reason to believe he burnt my barn." " From the evidence I have concerning the burning of 1 Anon., Pasch., 11 Jac. I. ; 1 EoU. Roll. Abr., 70. For further Instances Abr., 746; now overruled by Stamp of sUch refinements, see Peake v. Pol- and wife V. White and wife, Cro. lard, Cro. Eliz., 314; Oox v. Hum- Jac, 600. phrey, id., 889; Holland v. Stoner, ZMitchell v. Brown, 3 Inst., 167; 1 Cro. Jac., 815; Odgers on S. &L., 93. PKOGEESS OF THE LAW. 303 my barn, I believe he burnt it." ^ So, also, it seems that the expressions, " I am persuaded in my conscience," ^ " I am thor- oughly convinced,"' "I think or I dreamt it," or "for aught I know," have been ruled to be a suflHcient affirmation.* § 26. Progress of the Law. — In 1676, in the days of Charles II., the court of conimon pleas decided in a case of scandalum magnatxim^ that "words should not be construed either in a rigid or mild sense, but according to the general and nat- ural meaning, and agreeable to the common understanding of all men." This decision soon became the law. In 1683^ Levinz, J., said he was " for taking words in their natural, gen- uine and usual sense and common understanding, and not according to the witty construction of lawj'ers, but according to the apprehension of the by-standers." ' ' In 1722 Fortescue, J.,declared:* " The maxim for expounding words in mitiori sensu has for a great while been exploded, near fifty or sixty years." ' Lord Mansfield commented severely on the constant practice of moving in arrest of judgment after verdict found: "What? After verdict shall the court be guessing and invent- ing a mode in which it might be barely possible for these words to have been spoken by the defendant, without meaning to charge the plaintiff with being guilty of murder? Certainly not. "Where it is clear that words are defectively laid, a ver- dict will not cure them. But where, from their general import, they appear to have been spoken with a view to defame a party, the court ought not to be industrious in putting a con- :Uruction upon them dififerent from what they bear in the com- mon acceptation and meaning of them."" "The rule that has now prevailed is that 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." '» 1 Logan V. Steele, 1 Bibb (Ky.), 'Somers v. House, Holt, 39; Skin., 593 ; Jones v. McDowell, 4 Bibb (Ky.), 364 ; Burgess v. Bracher, 8 Mod., 238. 189; Bar v. Gaines, 1 Dana(Ky.), 258. SButton v.Haywardetux., 8Mod., 2Ci-o. Jac.,407. 24. 3 2 Black. Rep. , 959. *" Peake v. Oldham, Cowp. , 277, 278. ^Logan V. Steele, 1 Bibb (Ky.), i«Harrison v. Thornborough, 10 593, Mod., 197; Odgers on L. & S., 97; R. «Lord Townshend v. Dr. Hughes, v. Home, 2 Cowp., 682-689; of Bul- 2 Mod. 159. ' ^®'"> '^■' ^* ^" Watson and others, 2 6 Naben v. Miecock, Skin., 183. T. R, 206; and the judgments Wool- 3(>4 INTBEPBETATION OF DEFAMATOKY LANGUAGE. § 27. Defamatory Words to be Taken in the Sense which Fairly Belongs to Them. — The courts no longer strain to find an innocent meaning for \yovAs prima facie defamatory ; neither will they put a forced construction on words which maiy fairly be deemed harmless. Formerly it was the practice to say that words were to, be taken in the more lenient sense, but that doctrine is now exploded ; they are not to be taken in the more lenient or more severe sense, but in the sense which fairly belongs to them. The rule which once prevailed, that words are to be under- stood hi mitiori sensu, has been long ago superseded; and words are now to be 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.^ Now the only ques- tion for the judge or the court is whether the words are ca'pa- ble of the defamatory meaning attributed to them; if they are, then it is for the jury to decide what is in fact the true construction. So long as the words complained of are not absolutely un- intelligible, a jury will judge of the meaning as well as other readers or hearers. All perplexity and obscurity will disap- pear under the narro^v examination which the words will receive in a court of law. It matters not whether the defam- atory words be in English or in any other language, wliether they be spelt correctly or incorrectly, whether the phrase be grammatical or not, whether cant or slang terms be employed, or the most refined and elegant diction.^ The insinuation may be indirect, and the allusion obscure; it may be put as a ques- tion or as an " on dit ; " the language may be ironical, fig- urative or allegorical; still, if there be a meaning in the words at all, the court will find it out, even though it be disguised in a riddle or in hieroglyphics. In all cases of ambiguity it is purely a question for the jury to decide what meaning the words would convey to persons of ordinary intelligence.' § 28. The Rule of Construction.— The question always is: How did the persons to whom the words were originally noth V. Meadows, 5 East, 463; 3 2R. v. Edgar, 3 Sess. Cas., 29; 5 Smith, 28. Bac. Abr., 199. 1 Roberts v. Camden, 9 East, 95. a Grant v. Yates (C, A.), 3 Times L. R,, 368; Odgers on L. & S., 98. DEFAMATOEY MArfEE TO BE TAKEN AS A WHOLE. 305 spoken or published understand them? — the legal presumption being that they were persons of ordinary intelligence. "We must assume, too, that they gave to ordinary words their or- dinary meaning, to local or technical phrases their local and technical meaning. That being done, what meaning did the whole passage convey to the unbiased mind? Where the per- sons who hear a charge made against another know that a particular transaction is referred to, and know also that the transaction was not such as constituted a crime, no action of slander can be maintained.' It is essential that the defendant shall afiBrmatively show that the pei-sons who heard the words spoken by him knew of the transaction to which the words referred.^ But, while this is an essential element of the de- fense, still the court cannot exclude the evidence if there is direct testimony or circumstantial evidence tending to show that the persons who heard the alleged slanderous words had knowledge of the matter to which the words had reference.' § '29. The Defamatory Matter to Ibe Taken as a Whole.— In answering the question it is the duty of the jury to weigh all the circumstances of the case — the occasion of speaking and the relationship between the parties. They should consider the words as a whole, not dwelling on isolated passages, but giv- ing its proper weight to every part.'' The sting of a libel may sometimes be contained in a word or sentence placed as a heading to it. The defendant will often be held liable merely in consequence of such prefix, where, without it, he would have had a perfect answer to the action. So, a word added at the end may altogether vary the sense of the preceding pas- sao-e. The defendant is therefore entitled to have the whole of the alleged libel read as part of the plaintiff's case." And for the purpose of showing that what he wrote was no libel, and will not bear the construction which plaintiff seeks to put upon it, he may give in evidence any other passages in the »Hotchkis3 V. Olmstead, 37 Ind., 'Berry v. Massey, 104 Ind., 486; 3 74; Carmichael v. Sheil, 21 Ind., 66; N. B. Rep., 942. Odgers on L. & S., 109. * Dexter v. Taber, 12 Johns. (N. Y.), 2 Williams v. Minor, 18 Conn., 464; 239: Shipley v. Todhunter, 8 C. & P., Dempsey v. Paige, 4 E. D. Smith, 680. 218; Van Aiken v. Caler, 48 Barb. sCom. v. Snelling, 32 Mass., 337; (N. Y.), 58; Stone v. ClarK, 21 Pick. Cooke v. Hughes, R. & M., 112. (Mass.), 61. 306 INTEEPEETATION OF DEFAMATOEY LANGTTAGE. same publication which plainly refer to the same matter, or which qualify or explain the passage sued on.' So, too, Avith a slander; very often the words immediately preceding or following may much modify those relied on by the plaintiff.^ "When the language sued on is ambiguous, and some extrinsic evidence is necessary to construe it, evidence may even be given of other libels or slanders published by the defendant of the plaintiff which explain or qualify that sued on. But such evidence is not admissible where the meaning of the words is clear and undisputed.' And when such evi- dence is admitted the jury should be charged not to give any damages in respect of it.* § 30. Illustrations — American Cases. — 1. A New York Case: Dexter v. Taber, 13 Johns., 239(1814). In this suit the words charged were: "You are a thief; you are a damned thief." The words proved at the trial to have been spoken by the defendant were: " You are a thief ; you stole hoop-poles and saw-logs from ofE Delancey's and Judge Myers' land."' The witnesses said that they sup- posed the words spoken alluded to the cutting of standing timber, but they did not know the defendant's meaning. The judge told the jury that it was for them to decide whether the words, as proved, amounted to a charge of theft ; but if they meant only that the plaintiflE had secretly cut and car- ried timber from oflE the land in order to make hoop-poles, etc., it amounted to a charge of trespass only, and In that case the words were not actionable, and that this was his impression as to the meaning of the words. The jury found a verdict for the defendant, and a motion was made to set aside the verdict and for a new trial. Per Curiam: The motion for a new trial must be denied. The slander- ous words charged in the declaration were that the defendant said to the plaintiff: "You are a thief." The witness who proved the speaking of these words went on to explain in what connection and in reference to what subject the words were spoken. " You are a thief; you have stolen hoop-poles and saw-logs from off Delancey's and Judge Myers' land," al- luded to certain wood lands belonging to those persons. The charge thus made may be equivocal and somewhat doubtful ; and had the whole charge, as made and proved, been set out in the declaration, and if this was a mo- tion in arrest of judgment, it might well be contended that the words im- 1 R. V. Lambert and Perry, 2 Camp. Pearce v. Ormsby, 1 M. & Rob., 455 ; 400; 31 Howell St. Tr., 340; Darby v. Symmons v. Blake, id., 477; 3 C, M. Ouselej-, 25 L. J., Ex., 329; 1 H. & &R.,416; 4DowI., 263; 1 Gale, 182; N., 1; 3 Jur. (N. S.), 497; Bolton v. Traill v. Denham, Times for May O'Brien, 16 L. R., Ir., 97. 4, 1880. 2Bittridge's Case, 4 Rep., 19; ^Tindal, C. J., in Pearson v. Le- Thompson v. Bernard, 1 Camp., 48. maitre, 5 M. & Gr., 720; 12 L. J., Q. aStuart v. Lovell, 3 Stark., 93; B., 253; 7 Jur., 748; 6 Scott, N.B., 607. ILLUSTRATIONS — DIGEST OF CASES. 307 port a cnarge of felony. But it was con-eotly stated to the jury that if the defendant intended to charge the plaintiff with taking hoop-poles and saw- logs already cut, it was a cliarge of felony ; but if he only meant to charge him with cutting and carrying them away, it was only charging him with having committed a trespass. And in what sense the words were intended to be used was for the jury to determine. This point is well settled, both in our own and in the English courts. 1 Johns. Ca-s., 379; Wm. Bl., 959; Cowp., 378; 9 East, 96. The terms " hoop-poles " and " saw-logs," in com- mon parlance, are used indiscriminately as applicable both to standing and felled timber in these descriptions. And the jury have found that the words were used in the former sense, and, of course, not amounting to a charge of felony. And the facts in the case fully warrant the finding of the jury. Spencer, J., dissented. § 31. Digest of American Cases. — 1. A newspaper article headed, "An unwarranted outrage," etc., charg- ing a deputy-sheriff with arresting peaceable and innocent men as tramps, merely to get the fees allowed by law for such services, is libelous and ac- tionable in itself. Bourreseau v. Detroit Eve. Jour., 30 N. W. Eep., 376. 2. An article was headed, "Look out for thieves," and charged one Har- rison and one Allen with having boasted that they had won certain sums of money by gaming on particular occasions. It also charged them with having drugged a horse previously to a race in which he was to run, by means of which they won a large sum of money. Held libelous. Com. v. Snelling, 83 Mass., 337 ; Stanley v. Webb, 4 Sandf. (N. Y.), 31. § 32. Digest of English Cases.— 1. The " Observer " gave a correct account of some proceedings in the in- solvent debtor's court, but it was headed, " Shameful conduct of an attor- ney." The rest of the report was held privileged ; but the plaintiff recov- ered damages for the heading. Clement v. Lewis, 3 B. & B., 397; 7 Moore, 300; 3 B. & Aid., 703. And see Mountney v. Watton, 3 B. & Ad., 673; Bishop V. Latimer, 4 L. T., 775; Boydell v. Jones, 4 M. & W., 446; 7 DowL, 310 ; 1 H. & H., 408 ; Harvey v. French, 1 Cr. & M. , 11 ; 3 M. & Scott, 591 ; 2 Tyr., 585; Lewis v. Levy, E., B. & E., 537; 37 L. J., Q. B., 383; 4 Jur. (N. S.), 970; Street v. Licensed Victualers' Society, 33 W. R., 553. 2. An action was brought for an alleged libel, published in the " True Sun " newspaper: "Riot at Preston. From the ' Liverpool Courier.' It ap- pears that Hunt pointed out Counselor Seager to the mob, and said, ' There is one of the black sheep.' The mob fell upon him and murdered him. In the affray Hunt had his nose cut off. The coroner's inquest have brought in a verdict of wilful murder against Hunt, who is committed to gaol. Fudge." The plaintiff contended that the word "Fudge" was merely in- troduced with reference to the future, in order that the defendants might afterwards, if the paragraph were complained of, be able to refer to it, as showing that they intended to discredit the statement. Lord Lyndhurst, C. B., told the jury that the question was with what motive the publica- tion was made. Jt was not disputed that if the paragraph, which was copied from another paper, stood without the word "Fudge," it would bo a libel. If they were of opinion that the object of the paragraph was to vindicate the plaintiff's character from an unfounded charge, the action 308 INTERPEETATION OF DEFAMATOET LANGUAGE. could not be maintained; but if the word "Fudge" was only added for the jjurpose of making an argument at a future day, then it would not take away the effect of the libel. "Verdict for the plaintiff. Damages, one far- thing. Hunt V. Algar and others, 6 C. & P. , 245. § 33. Witnesses Not to Giye Their Understanding of De- famatory Matter — A Question for the Jury. — In actions for defamation witnesses cannot be allowed to testify as to the meaning which they understood the alleged defamatpry mat- ter to convey or the particular person to whom they under- stood it to apply. A witness may testify to the publishing of the defamatory matter, the speaking of slanderous words or publication of a libel, together with all the attendant circum- stances and connections, the existing facts; and after having done so it is for the jury to determine from the evidence who was meant and what was meant.' § 34. Illustrations — American Cases. — 1. A Minnesota Case: Oribhlev. Pioneer Press Co., 37 Minn., 377. The plaintiff brought an action to recover for an alleged libel contained in an article published in the issue of the defendant's newspaper of October 25, 1884, which, in commenting upon certain libel suits against the de- fendant then pending, stated: "In the great majority of cases, libel suits for pecuniary damages are only brought against reputable newspapers by the meanest sort of scalawags, shysters and adventurers. For the most part they are simply mercenary speculations upon the chance of obtaining a verdict from an ignorant and prejudiced jury by the aid of some crafty lawyer, who is usually a partner in the speculation ; that is to say, the law- yer takes the case as a purely business venture on condition of his being paid half or some other proportion of the amount of damages awarded if he should succeed in bamboozling the jury. The ' Pioneer Press' has been pestered with a multitude of such libel suits, of which it has now on hand six or seven exclusive of Donnelly's mock contribution, almost without ex- ception brought or instigated by notorious sharpers, shysters, confidence men, adventurers and other disreputable people as a means of raising the wind, or occasionally as a sham plea in arrest of judgment preparatory to their fleeing from the country. Mr. Donnelly is more than welcome to all the political advantage he can reap by enrolling himself in this congenial com- pany. His able counsel, Mr. Brisbin, is to be congratulated in having been chosen to represent the common griefs of Mr. Gribble and Mr. Donnelly in the suits of these delectable worthies against the ' Pioneer Press.' " 1 Gribble v. Pioneer Press Co., 37 Mass., 278; White v. Sayward, 33 Minn., 277; 34 N. W. Rep., 30; Van Me., 326; Rangier v. Hummell, 37 Vetchin v. Hopkins, 5 Johns. (N. Y.), Penn. St., 130; McCue v. Ferguson, 211; Gibson v. Williams, 4 Wend. 73 Penn. St., 333; Daines v. Hartley, (N. Y.), 330; Wright v. Paige, 43 3 Exch., 200; Anderson v. Hart, 68 N. Y., 581, 584; Snell v. Snow, 54 Iowa, 400; 27 N. W. Rep., 289. ILLHSTE AXIOMS AMEEICAK OASES. • 309 Upon the trial the court permitted several witnesses to testify that they at the time of the publication understood the article as using the term "shy- ster " as applicable to the plaintiff. The jury found a verdict for the plaintiff, but the court upon consideration of the matter having come to the conclusion that the evidence was inadmissible granted a new trial. From this order the case was taken to the supreme court for review. It was held that the court below was right in its conclusion that the evidence was not admissible. Dickinson, J. : The question to be determined by the jury was not what interpretation these witnesses had put upon the article when they read it, but what was its meaning. This the jury could determine directly from a reading of the article itself, and by the aid of such other facts and circum- stances as might affect the question. Whatever relevant facts outside the publication could have enabled these witnesses to form an intelligent opin- ion or understanding that the offensive term was intended to be applied to the plaintiff could have been placed before the jury, and the question in issue should have been determined by the jury from the established facts relevant to the issue, and not from the opinion or understanding of wit- nesses, which may have been based upon some insufficient reasons. It would be a dangerous practice, not in general to be resorted to, to apply in a court of justice for the interpretation of the conduct or of the language of men, the understanding, conclusions or opinions of others, wliich are too often formed under circumstances not conducive to an impartial, mature and correct judgment. That would be, in some degree and in some sense, to substitute the irresponsible, hasty opinions of perhaps prejudiced minds for the calm, deliberate judgment of juries acting under the sanctions and with the aids which attend their deliberations. 2. A Massachusetts Case: Snell v. Snow, 54 Mass., 278. On the trial of an action for slander a witness testified as foUows: " I went into the counting-room of the company to see if there was not some way in which matters could be fixed, so that the plaintiff could be em- ployed. The defendant said he did not know or did not see any way it could be fixed. She was a bad girl, a very bad girl. I told him she had worked for me, and her reputation stood high then. He said she must have altered very much since, for she was now a very bad girl. I inquired of him what she had done to render her unfit. He replied that she was a bad girl, and ought not to be allowed around among other girls." The plaintiff then inquired of the witness what meaning he understood the defendant to convey by these words. To this inquiry the defendant objected, and the court ruled that the witness might testify as to any exist- ing facts or circumstances to which the defendant referred, if any, but that as the witness had proposed to give the whole conversation, it was for the jury to determine what was meant by the language ; and that it was not competent for the witness to testify as to his understanding of the meaning of the defendant in the words made use of. The jury found for the de- fendant. Exceptions being taken to the ruling of the court as to the com- petency of the inquiry put to the witness, it was held that the court properly decided that it was not competent for the witness to testify to his understanding of the defendant's meaning in the language used. Shaw, C. J.: " If the words i« their ordinary sense, according to the rules 310 INTEEPEETATION OF DEFAMATOET LANGUAGE. of language, imputed a charge of uncbasteness and crime, or if taken in connection with other facts or words they would bear that meaning, we are to presume that the jury would so find. If in their natural import, or with accompanying words and facts, they would not bear that meaning, the witness' understanding of them could not legitimately govern or aid the jury, and would therefore be incompetent. It would make the defend- ant'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 misconception or morbid imagination of the person in whose hear- ing they were spoken." 3. A New York Case: Van Vetchin v. Hopldns, 5 Johns., 211. Van Vetchin sued Hopkins for a libel. At the trial the plaintiff proved that the defendant was the author and publisher of the libel ; that he (the plaintiff), at the time when a certain corrupt agreement set out in the dec- laration is charged in the libel to have been made by certain members of the legislature,' and at the publication thereof, was recorder of the city of Albany, and at the former period was a. member of the assembly; that he was the only person of the name of Van Vetchin in the city of Albany, and kept an office there. He then offered to prove by a witness that from read- ing the libel he applied it to the plaintiff, and understood him to be the per- son intended as one of the members of the legislature who had subscribed to the corrupt agreement charged in the libel. The offer was refused by the court on the ground that it was the province of the court to determine whether it was the intention of the defendant to charge the plaintiff as being one of the members of the legislature who subscribed the corrupt agreement; it being admitted by the plaintiff's counsel that there were no circumstances within the knowledge of the witness except what he ob- tained from reading the paper itself to influence his belief as to the person intended. Upon this and other questions the case was takon to the supreme court. In the opinion of the court upon the question in point. Van Ness, J., says: "There is another point in the case upon which, in the view I have taken of the subject, it would not be necessary for me to express an opinion. As it may, however, embarrass the parties on a future trial, it may as well be disposed of. I allude to the exclusion by the judge of the testimony of the witness who was called to say that, from reading the libel, he applied it to the plaintiff. This evidence was properly overruled. The intention of the defendant is not the subject of proof by witnesses in the way here at- tempted. It is the mere opinion of the witness, which cannot and ought not to have any influence on the verdict. I consider the evidence as inad- missible because it goes to prove the correctness of an innuendo." 4. An Iowa Case: Anderson v. Hart, 68 Iowa, 400. In an Iowa case the petition stated that the defendant published of and concerning the plaintiff the foUowing false, malicious and defamatory libel : " John Hart, being dilly sworn, deposeth and saiththat a note presented to him by Hiram Larabee, in favor of J. D. Larabee, with Alfred Anderson's name and mark, C. J. Gustafson and John Hart's names, is a note he knows nothing about; and the name of John Hart was not written by him or his orders, and therefore is a forgery." The defendant pleaded the general issue, justification and privUeged communication. Larabee was a witness UNSETTLED STATE OF THE LAW. 311 at the trial. On the stand ho was asked by the plaintiff's counsel, " To ■whom did you understand this affidavit to refer? To what person?" The ■witness replied, " He did not refer to no particular person as doing it." " I am not asking you about him, but about the affidavit. To whom did you understand it to refer?" The witness replied, "Well, I understood it to refer to Anderson, or procured by him — that is, the forgery ; that is the way I understood it at the time." The objection was that the evidence sought to be elicited was tlie conclusion or opinion of the witness. The overruling of the objection was assigned for error in the supreme court. On the considera- tion of the error, Seevers, J., said: " It will be observed that the witness was asked to construe the libel. In effect, he was asked to look at the affi- davit and state who the defendant meant to charge with the crime of for- gery. There was no ambiguity as to the crime charged, and no person was indicated as having committed it. There were no circumstances surround- , ing the transaction which had any tendency to show who the defendant meant, unless such meaning could be legitimately inferred from the fact that the names of the plaintiff, the defendant and another person were signed to the note. When a libelous communication on its face, directly or indirectly, or by way of innuendo or otherwise, refex's to any person, it is possibly true that a witness may be asked who or what person was meant. Subject to this rule the decided weight of authority, we think, is that the alleged libel must be construed by the court and jury. When the note was presented to him, the defendant simply said in writing, 'it is a forgery;' and therefore the witness was allowed to draw the inference and express the opinion that he charged the plaintiff with the crime of forgery. In so ruling we think the court erred." The judgment was reversed. Citing Van Vetchin v. Hopkins, 5 Johns. (N. Y.), 211 ; Gibson v. Williams, 4 Wend. (N. T.), 320; Snell v. Snow, 13 Met. (Mass.), 278; Rangier v. Hummell, 37 Penn. St., 130; White v. Sayward, 33 Me., 332. § 35. Unsettled State of the Law — General Discussion of the Subject. — There is some conflict of opinion in regard to the doctrine laid down in the text, and it would seem that the law is not to be regarded as completely settled upon this ques- tion. The rule laid down by Pollock, C. B., in Hawkinson v. Bilby, 16 M. & W., 442, is, " the words must be construed in the sense which hearers of common and reasonable understanding would ascribe to them." "It may well be asked," says Law- rence, J., in Nelson v. Borchenius, 52 111., 236, " what better guide there is in that inquiry than to ascertain how they were really understood -by the by-standers. The essence of the in- quiry is the effect created by the slanders upon the minds of the hearers; and it seems to us extraordinary that a person having used language concerning another which all his hear- ers understood in a slanderous sense should be permitted to escape the legal consequences by saying he did not use the 312 INTERPKETATION OP DEFAMATOET LANGUAGE. words in that sense. We do not deem that their construction would be conclusive upon the jury, but it is admissible as tend- ing to show what meaning hearers of common understanding would and did ascribe to them. Hobart says, page 268, the slander and damage consist in the apprehension of the hear- ers; and in Gilbert's Cases on Law and Equity, page 117, the rule is laid down that the words shall be taken in the sense in which the hearers understood them. This rule is so far modi- fied that the understanding of the~ hearers is not conclusive upon the jury ; but that they should be permitted to state what it was we entertain no doubt. In cases of this kind the impres- sion made upon the minds of the hearers goes to the gist of the action, and hence a slander in a language unknown to the by- standers is not actionable." And Baron Parke in Hawkinson V. Bilby, 16 M. & W., 442, in reply to counsel, who had quoted Starkie on Slander, said the drift of Mr. Starkie's remarks is to show that the effect of the words used, and not the mean- ing of the party in uttering them, is the test of their being actionable; that is, first ascertain the meaning of the words themselves, and then give them the effect any reasonable by- stander would aflBx to them. A man must be taken to mean what he utters." Lord EUenborough, in Woolnoth v. Meadows, 5 East, 463, in passing upon the sufficiency of the declaration, said the plaintiff on the trial would be obliged to show, not only that the defendant intended to impute a crime to him, but that the words were so understood by the hearers. The ISew York and Massachusetts cases, although not in perfect harmony, support the rule as announced in the text. On the other hand, in Smart v. Blanchard, 42 N. H., 146, the authorities are aU reviewed and the contrary doctrine is held. Such evidence is also held admissible in Yerraont,' Indiana,'' Illinois, and per- haps some other states. In Illinois, quoting from 2 Green leaf on Evidence, 417, the rule is stated thus : " From the nature of the case, witnesses must be permitted in these cases to state to some extent their opinion, conclusion and belief, leaving the grounds of it to be inquired into on cross-examination."' 1 Smith V. Miles, 15 Vt., 245. ' Nelson v, Borchenius, 52 El., 241. 2Smawley V. Stark, 9 lad., 386. UNSETTLED STATE OF THE LAW. 313 Upon the theory that circumstances never conspire to com- mit perjury, and that witnesses may and sometimes do, it is probably in this class of cases — dangerous at best, and where the witnesses are frequently partisans of the plaintiff or de- fendant, the temptation to commit perjury great and ihe dan- ger of detection extremely remote — for who can tell the impressions on the minds of others or their secret thoughts — the safer rule to allow the witnesses to testify to the publishing of the defamatory matter, together with all the surrounding circumstances and existing facts, and after having done so let the jury determine from the evidence who was meant and what was meant. CHAPTER XVL MALICE. I. Malice in Actions fob Defamation. § 1. Malice as a Term of Law. 2. Malice — A General Discussion. 3. Express Malice Defined. 4. Malice Refers to the Motive, Not to the Intention. 5. Necessary Ingredients of Malice. 6. The Law Implies Malice, when. 7. Malice in Fact Immaterial, when, 8. Malice in Law — A Wider Meaning. 9. Distinction between Malice in Law and Malice in Fact. 10. Consequences of the Distinction. 11. Malice in Connection with the Law of Defamation. 13. Every Defamation Presumed to be Malicious. 13. Malice Defined by Starkie. 14. Explained by Blackstone. 15. The Law of Malice Stated by Starkie. 16. By Champlin, J. 17. By Erie, C. J. 18. By Lord Justice Brett. 19. Malice the Gist of the Action. 20. Illustrations — Digest of American Cases. 21. A Question for the Jury. II. Evidence of Mauce. 22. The Burden of Proof. 23. Privileged Communications. 24. The Evidence May be Extrinsic or Intrinsic. 25. Strong Words No Evidence of Malice. 26. Illustrations — Digest of American Cases. 27. Digest of English Cases. 28. Malice Inferred. 39. Illustrations — Digest of American Cases. 30. Digest of English Cases. 3J. Repetition of Defamatory Matter Competent to Show Malice. 33. Illustrations — Digest of American Cases. 33. Digest of English Cases. 34. Reiteration of Libels or Slanders after Suit Brought. 35. Repetition after Suit Brought Generally. 36. Illustrations — Digest of American Cases. 37. Digest of English Cases. MALICE AS A TEKM OF LAW. 315 § 38. Former and Subsequent Defamations — When Evidence of Malice. 39. Illustrations — Digest of American Cases. 40. Digest of English C^ses. 41. Extrinsic Evidence of Malice. 42. Illustrations — American Cases — A Wisconsin Case : Templeton v. Graves, 59 Wis., 95. 43. Digest of American Cases. 44. Digest of English Cases. 45. Mode and Extent of Publication. 46. Ilhistrations — Digest of English Cases. 47. Intemperate Expressions — Exaggerated and Unwarranted. 43. Illustrations — Digest of American Cases. 49. Digest of English Cases. 50. The Method of Communication Employed. 51. Illustrations — Digest of American Cases. 52. Digest of English Cases. 53. Privileged Communications — Undue Publicity. 54. Illustrations — Digest of American Cases. 55. Digest of English Cases. 56. Plea of Justification — When Evidence of Malice. 57. Unsettled State of the Law. 58. The Better Rule. I. Malice dt Actions foe Defamation. § 1. Malice as a Term of Law. — The word malice as a term of law has a meaning somewhat different from that which it possesses in ordinary parlance. In its ordinary sense " malice " denotes ill-will, a sentiment of hate or spite, especially when harbored by one person towards another. The word is so em- ployed in the well-known sentence in the litany of the Church of England, " From envy, hatred and malice," etc. This is what the law terms "malice in fact," "actual" or "personal" malice, to distinguish it from the legal sense attributed to the term, and which, from being used in such sense, is accordingly designated " malice in law." " Malice in fact " is, to use the language of a late eminent judge, "of two kinds — either per- sonal malice against an individual, or that sort of general vio- lation of the right consideration due to ail mankind which may not be personally directed against any one." ' And Lord Jus- tice Brett, in a comparatively recent case where a question of privilege arose, said: "By malice here I mean, not a pleading iSherwin v. Swindall, 12 M. & W., 783; L. J. (Ex.), C. B., 387; Flood on L. & a, 31. 316 MALICE. expression, but actual malice, or what is termed 'malice ia fact;' i. e., a wrong feeling in the defendant's mind." ' §2. Malice — General Discussion — Treat, C. J.— There is a class of cases where the occasion of the speaking of the words may, without regard to their truth or falsity, afford an excuse or justification to the party ; such, for instance, as the statements of a master respecting the character of a servant; communications addressed to the appointing power, relative to the conduct of a public ofiicer, or concerning the qualifi- cations of an applicant for oflSce; expressions used in the course of a judicial proceeding by a judge, attorney, witness, juror or party ; and communications made to others in confi- dence or in the way of admonition or advice. In such cages an action cannot be sustained without proof of actual malice. If the party acted from honest motives and for justifiable pur- poses, the Jaw, from reasons of public policy, excuses him. But he is not permitted, under the pretense of discharging a duty to himself or society, to inflict an injury to the reputa- tion of another. If he makes use of the occasion for the purpose of traducing another, the occasion will not protect him, and he will be an- swerable for the consequences. But the reverse is the rule in the case of actionable words, where no excuse or justification can arise from the particular circumstances under which thev were uttered. The plaintiff is not bound to prove that the charge was maliciously made; nor can the defendant relieve himself from liability by showing the absence of express malice. He makes the publication at his peril, and, if untrue, he is re- sponsible for all the consequences naturally flowing from the act. The real motive by which he was actuated is unimpor- tant,^ except upon the question of damages. The injury to the plaintiff may be as serious, where the charge is made without an actual intention to defame, as if it proceeds from the most malignant motives. It would be a great reproach to the law if a party who had causelessly ruined the reputation of an- other' should be exempted from civil responsibility merely be- cause he did not design to produce such a result.^ iClarkv. Molyneux,L.R., 3Q. B., 2 Gilmer v. Eubanks, 13 111., 271. 337 CC. A.); 47 L. J. (C. L.), 330; Sfce- See Root v. KiDg et aL. 7 Cow. (N. vens V. Sampson, 49 L. J. (C. L.), 130; Y.), 613. ■pionil cm T.- *! S S9 DEFINITION — NECESSARY INGREDIENTS. 31Y § 3. Express Malice Defined.^ Express malice is when one witii a sedate, deliberate mind and formed design doth kill [or injure] another, which formed design is evidenced by exter- nal circumstances discovering that inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him bodily [or other] harm.^ § 4. Malice Refers to Motive, Not to Intention.— Mr. Jus- tice Stephen sa3's of the word "malice:" "It seldom has any meaning except a misleading one. It refers not to intention but to motive, and, in almost all legal inquiries, intention, as distinguished from motive, is the important matter." ^ § 5. Necessary Ingredients of Malice — Chief Justice Shaw. — It is not necessary, to render an act malicious, that the party be actuated by a feeling of hatred or ill-will toward the individual, or that he entertain and pursue any general bad purpose or design. On the contrary, he may be actuated by a general good purpose, and have a real and sincere design to bring about a reformation of matters; but if in pursuing that design he wilfully inflicts a wrong on others which is not warranted by law, such act is malicious. A man may, by his example and by his conduct, be doing great injury to society ; he may in fact be guilty of the most ruinous crimes, and that well known to an individual; that in- dividual may be actuated by the most pure and single-hearted desire to rid society of a mischievous character, and entertain the firmest conviction that he would be doing great good by it; and yet it is very certain that in contemplation of law any attempt upon his life, his liberty, his person or property, made in the accomplishment of such a purpose, would be un- lawful, and therefore malicious. This is founded upon a prin- ciple essential to the very existence of a government of laws and of civil liberty, that no man can be punished except by the operation of law, and after a trial according with the forms of law, with such aids and shields as the law affords him ; that individuals cannot take the execution of the law into their own hands; and that it is the duty of every good citizen, if he knows of any offense against society, not to as- 1 4 Black. Com,, 199; Flood on L. ^ Flood on L. & S., 88. & S., 34. 318 MAilOE. sail the offender, but to bring the matter before proper tri- bunals for inquiry, trial and punishment.* § 6. The Law Implies Malice, when. — " In many cases where no malice is expressed the law will imply it, as when a man wilfully poisons another; and in such a deliberate act the law presumes malice, though no particular enmity can be proved." To present this subject in a few words, malice in law is such as the law infers to exist without just or lawful excuse ; also in malice of either kind " you cannot have shades and degrees." ^ § 7. Malice in Fact Immaterial, when. — Malice in fact is not material so far as regards the accomplishment or comple- tion of an offense, and it matters not in this respect whether the malice was entertained by the wrong-doer five minutes or five years before the commission of the offense.' In libel and slander suits, where no question of privilege arises, it is quite sufficient if malice in law is shown, although if both these ele- ments appear the existence of the former would probably be taken into account in awarding punishment or damages where they would be the proper compensation for the injury done. § 8. Malice in Law — A Wider Meaning. — " Malice in law," however, is an expression of much wider meaning than " mal- ice in fact." By this term we are to understand much more than spite or ill-will; we are to understand what the Latin word from which " malice " itself is derived conveys to us. That word is rnalitia. Hence " malice in law " simply means a general wickedness of intent on the part of a person ; a de- praved inclination to do harm, or to disregard the rights or. safety of mankind generally — the existence of Avhich senti- ments is made manifest by mischievous or injurious acts on the part of him who entertains them.* § 9. The Distinction between Malice in Law and Malice in Fact. — The distinction between " malice in law " and " malice in fact" is certainly not one that would be evolved naturally and as a matter of course out of a person's " inner conscious- ness." It exists, however, and must be understood by those iCom. V. Snelling, 33 Mass., 337; 5 Stephen's Dig. Crim. Law, 144, Com. V. Bonner, 9 Met. (Mass.), 410. n. 3. 2 Stevens v. Sampson, 49 L. J., C. < Flood on L. & S.. 83. L., 120; Flood on L. & S., 85. CONSEQUENCES OF THE DISTINCTION PEESUMPTION. 319 who would rightly comprehend the English law on the subject of wrongs.^ § 10. The Consequences of the Distinction.— It is in conse- quence of the distinction between " malice " in its ordinary sense and in its legal acceptation that judges, when engaged in the trials of persons indicted for murder, almost invariably tell the jury that malice prepense or aforethought merely sig- nifies a preconceived wicked intent to kill, and that the period of time elapsing between such conception of a design and the carrying it into execution is of no consequence in law. The fact of a person having been known to previously harbor and express ill-will against the individual whose life he subsequently takes may of course be a matter of evidence as to the intent with which he committed the crime, but it would in no way intensifj' the gravity of the charge against him, so far as the legal offense itself is concerned.'' § 11. Malice in Connection with the Law of Defamation. — These statements quite serve our purpose in dealing with mal- ice in connection with the law of defamation, and we may sum the matter up in the terms of that maxim of our law which declares every man who commits an act to intend the consequences which flow therefrom. As to this feature of the offense now under notice, it has been correctly said that " mal- ice is the gist — that is, the main point whereon rests an action for libel or slander;" also that "unless the injurious commu- nication is privileged the law implies malice in the legal sense," although it might be added, circumstances may appear which will rebut such implication. If they do not, then the very terms themselves of the libel are sufficient evidence of malice.' § 12. Every Defamation Presumed to he Malicioxis.— Gen- erally speaking, therefore, every defamation is presumed by the law to be malicious. This presumption, however, may be rebutted by facts adduced in evidence; and the nature of such facts as will serve to repel the presumption of malice in him who publishes a libel will appear as we proceed. But we may here state, in concluding our remarks on that feature in the law of defamation now under consideration, that whenever, 1 Flood on L. & S., 87. ' Flood on L. & S„ 35. 2 Flood on L. &S., 33. 320 MALICE. during the trial of a case of libel, whether before a civil or criminal tribunal, the question arises as to whether malice ex- ists or not, such question is to be decided solely by the jury under the guidance and instruction of the court.' § 13. Malice Defined by Starkie. — A wanton disregard of the feelings of others is, in point of law as well as morals, in- excusable, so that it is no defense for the publisher of a libel to say that he was but in jest; for, as has been observed by a learned writer, the mischief to the party grieved is no way lessened by the merriment of him who makes so light of it. The mere absence of malice in particular against the party whose reputation is destroyed, and the excuse that the real motive was not malice, but a desire of gain, is no better plea than that which might be used by a hired assassin." § 14. Malice Explained by Blackstone. — Blackstone ex- plains the subject of malice in dealing with the crime of mur- der. We quote some of his statements thereon, placing in brackets certain words which will adapt his remarks to our present subject. He says that "malice prepense or malida prcBcogitata is not so properly spite or malevolence to the de- ceased [or injured person] in particular as any evil design in general — the dictate of a wicked, depraved and malignant heart; une disposition a /aire une male chose [a disposition to commit a wicked act], and it may be either express or implied in law.' § 15, The law of Malice Stated by Starkie. — It seems to be clear, as well upon legal principles as on those of morality and policy, that where the wilful act of publishing defamatory matter derives no excuse or qualification from collateral cir- cumstances, none can arise from a consideration that the author of the mischief was not actuated by any deliberate and ma- licious intention to injure beyond that which is necessarily to be inferred from the very act itself. For if a man wilfully does an act likely to occasion mischief to another and to sub- ject him to disgrace, obloquy and temporal damage, he must, in point of law as well as morals, be presumed to have con- 1 Flood on L. & S., 87. 8 4 Black. Com., p. 199 ; Flood on L, 2 1 Starkie on Slander, 315; 9 Co., & S., 34. 59 ; Moore, 627 ; Hawkins' Pleas of the Crown, ch. 78, see. 14. THE LAW STATED. 321 templated and intended the evil consequences which were likely to ensue.' § 16. By Chaiupliitj J. — " Malice is understood as having two significations: 1st. Its ordinary meaning of ill-will against a person, and the other its legal signification, which is a wrong- ful act done intentionally without just cause or excuse. These distinctions have been denominated malice in fact and malice in law. The first implies a desire and an intention to injure; the latter is not necessarily inconsistent with an honest pur- pose. But if false and defamatory statements are made concern- ing another without suflBcient cause or excuse, they are legally malicious; and in all ordinary cases malice is implied from the defamatory nature of the statements and their falsity. The effect, therefore, of showing that the communication was made upon a privileged occasion is prima facie to rebut the quality or element of malice, and casts upon the plaintiff the necessity of showing malice in fact; that is, that the defendant was actuated by ill-will in what he did and said, with a design to causelessly or wantonly injure the plaintiff; and this malice in fact, resting as it must upon the libelous matter itself and the surrounding circumstances tending to prove fact and mo- tive, is a question to be determined by the jury. The question whether the occasion is such as to rebut the inference of malice, if the communication be iona fide, is one of law for the court; but whether lona fides exist is one of fact for the jury.^ And the jury may find the existence of actual malice from the language of the communication itself, as well as from extrinsic evidence." ^ § 17. By Erie, C. J.—" The plaintiff does not sustain the burden of proof which is cast upon him by merely giving evi- dence which is equally consistent with either view of the mat- ter in issue. When the presumption of malice is neutralized by 1 Gilmer v. Eubank, 13 Dl., 374; 1 (Penn.), 420; Flitoraffc v. Jenks, 3 Starkie on Slander, 210. Whart., 158. 2 Bacon v. Mich. Cent. R. Co., 55 3 Hastings v. Lusk, 22 Wend. (N. Mich., 224; 33 N. W. Rep., 183; 1 Y.), 410; Howard v. Wellington, 7 Am. Leading Cases (5th ed.), 193 Smith V. Youmans, 3 Hill (S. C). 85 Hart V. Reed, 1 B. Mon. (Ky.), 106 Gray v. Pentland, 4 Serg. & R. 31 Car. & P., 531 ; Wright v. Woodgate, 2 Cromp., M. & R., 573; Jackson v, Hopperton, 16 C. B. (N, S.), 829, 322 MAmcE. circumstances attending the utterance of the slander or publi- cation of the libel the plaintiff must give further evidence of actual or express malice in order to maintain his action." ^ § 18. By Lord Justice Brett. — " When there has been a writing or a speaking of defamatory matter, and the judge has held — and it'is for him to decide the question — that although the matter is defamatory the occasion on which it is either written or spoken is privileged, it is necessary to consider how, although the occasion is privileged, yet the defendant is not permitted to take advantage of the privilege. If the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occa- sion for that reason. He is not entitled to the protection if he uses the occasion for some indirect and wrong motive. If he uses the occasion to gratify his anger or his malice, he uses the occasion not for the reason which makes the occasion priv- ileged, but for an indirect and wrong motive. If the direct and wrong motive suggested to take the defamatory matter out of the privilege is malice, then there are certain tests of malice. Malice does not mean malice in law, a term in plead- ing, but actual malice, that which is popularly called malice. If a man is proved to have stated that which he knew to be false, no one need inquire further. Everybody assumes thence- forth that he was malicious, that he did do a wrong thing for some wrong motive. So if it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and be has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other indirect hiotive." " § 19. Malice, the Gist of the Action.— The term "malice" has a twofold signification. There is malice in law as well as malice in fact. In the former and legal sense it signifies a Avrongful act, intentionally done without any justification or excuse. In the latter and popular sense it means ill-will to- ' Jackson v. Hopperton, 18 C. B. 246, 247; 47 L. J., Q. B., 230; 26 W. (N. S.), 829. R., 104; 37 L. T., 696, 697. 2 Clark V. Molyneux, 8 Q. B. D., ' EVIDENCE OF MALICE. 323 wards a particular person ; in other words, an actual intention to injure or defame him.' § 20. Illustrations — Digest of American Cases. — 1. Malice is an essential ingredient in actions for slander, and the petition must allege that the defamjitory matter was spoken maliciously. This alle- gation cannot be supplied by implication or be presumed from the false publication of words which ai'e in themaelves slanderous. Williams v. Gordon, 11 Bush (Ky.), 693. 2. To maintain an action for a publication as a libel merely because it is injurious to the plaintiff's business, it must be shown not only that the de- famatory publication was not justified in fact, but that it was published ■with malice or a wilful purpose of inflicting injury. Hovey v. Rubber T. P. Co., 57 N. Y., 119. 3. In order to make out a case of verbal slander two things are indispen- sable : (1) Malice in the utterance of actionable words, and (2) malice in their publication. It should be averred that the defendant maliciously published the matter, but any equivalent expression, as wrongfully and falsely, will be sufficient. Hanuiug v. Bassett, 13 Bush, 361. § 21. A Question for the Jury. — The question of malice or no malice is for the jury. The presumption in favor of the defendant arising from the privileged occasion remains till it is rebutted by evidence of malice; and evidence merely equiv- ocal, that is, equally consistent with malice or bona fides, will do nothing towards rebutting the presumption. The facts tendered as evidence of malice must always go to prove that the defendant himself was actuated by personal malice against the plaintiff. In an action against the publisher of a magazine, evidence that the editor or author of any article, not being the publisher, had a spite against the plaintiff is in- admissible.^ II. Evidence of Malice. § 22. The Burden of Proof.— "In an ordinary action for defamation, though evidence of malice may be given to increase the damages, it never is considered as essential; nor is there any instance of a verdict for the defendant on the ground of a want of malice." ' An accidental or inadvertent publication » Gilmer v. Eubank, 13 111., 274; 131, 189; Carmichael v. Waterford & "Williams v. Gordon, 11 Bush (Ky.), Limerick R'y Co., 13 Ir. L. R.. 818. ggg_ 8 Bromage v. Prosser, 4 B. & C, 'York V. Pease, 2 Gray (68 Mass.), p. 357; 6 Bowl. & R., 395; and per 282; Robertson v. Wylde, 2 Moo. & Mansfield, C. J., in Hargrave v, Le Bob., 101; Clark v. Newsam, 1 Ex., Breton, 4 Burr., 3435, 324 MALICE. of defamatory words is ground for an action. Even a lunatic is, it is said, liable for a libel.i The courts for this purpose look at the tendency of the publication, not at the intention of the publisher.^ Where a party has in fact spoken words which have injured the plaintiff's reputation he must be taken to have intended the consequences naturally resulting therefrom.^ § 23. Privileged Comiminications. — When the matter com- plained of is privileged the burden of proving malice lies on the plaintiff; the defendant cannot be called on to prove he did not act maliciously till some evidence of malice, more than a mere scintilla, has been adduced by the plaintiff.* § 24. Evidence of Malice. — Such evidence may either be ex- trinsic — as of previous ill-feeling or person&,l hostility between the parties, threats, rivalry, squabbles, other actions, former libels or slanders, and the like; or intrinsic — the violence of defendant's language, the mode and extent of its publication, etc. But in either case, if the evidence adduced is equally consistent with either the existence or non-existence of malice, there can be no recovery, for there is nothing to rebut the pre- sumption which has arisen in favor of the defendant from the privileged communication.* § 25. Strong Words No Evidence of Malice. — The fact that the words in question are strong is no evidence of malice, if on defendant's view of the facts strong words were justiiied;' or that the statement was volunteered is no evidence of malice, iPer Kelly, C. B., in Mordaunt v. B., 340; 24 L. J., Q. B,, 367; 1 Jur. Moidaunt, 39 L. J. Prob. & Matr., 59. (N. S.), 610 ; 3 C. L. E., 1090 ; Laughton 2Haire v. Wilson, 9 B. & C, 643; 4 v. Bishop of Sodor & Man, L. E., 4 Man. & Ey., 605; Fisher v. Clement, P. C, 495; 42 L.' J., P. C, 11; 21 W. 10 B. & C, 472: 5 Man. & Ey., 730. E., 204; 28 L. T., 377; 9 Moore, P. C. sWenman V. Ash, 13C. B., 845; 22 C. (N. S.), 318; Clark v. Molyneux L. J., C. P., 190; 17 Jur., 579; 1 (C. A.), 3 Q. B. D., 237; 47 L. J., Q. C. L. E.. 592; Huntley v. Ward, 6 B., 230; 26 W. E., 104; 37 L. T., 694; C. B. (N. S.), 514; 6 Jur. (N. S.), 18; 1 14 Cox, C. C, 10. F. & F., 553; Blackburn v. Black- = Somerville v. Hawkins, 10 C. B., burn, 4 Bir.g. , 395 ; 1 M. & P. , 33, 63 ; 590 ; 20 L. J. , C. P., ] 31 ; 15 Jur. , 450 ; 3C. &P., 146. Harris v. Thompson, 13 C. B., 333; iFowles V. Bowen, 30 N. Y., 20; Taylor v. Hawkins, 16 Q. B.,308; 20 Lathrop v. Hyde, 25 Wend. (N. Y.), L. J., Q. B., 313; 15 Jur., 746. 448; Taylor v. Hawkins, 16 Q. B., 6 Spill v. Maule, L. E., 4 Ex. 232- 331; 15 Jur., 746; 20 L. J., Q. B., 313; 38 L. J., Ex., 138; 17 W. E., 805; 20 Cooke and another v. Wildes, 5 E. & L. T., 675. EVIDE^-CE ILLUSTEATIONS. 325 if it Avas defendant's duty to volunteer it.^ The fact that the statement is admitted or proved to be untrue is no evidence that it was made maliciousW;^ though proof that defendant knew it was untrue when he made it would be conclusive evi- dence of malice. If the defendant is in a position to prove the truth of his statement, "he has no need of privilege: the only use of privilege is in cases where the truth of the state- ment cannot be proved." ' A mere mistake innocently made through excusable inadvertence cannot in any case be evi- dence of malice.* § 26. Illustrations — Digest of American Cases. — 1. A subsequent refusal to retract the defamatory words or to apologize is admissible to show actual malice. Klewin v. Bauman, 53 Wis., 244; 10 N. W. Eep., 398. 2. On demurrer to a complaint alleging that defendant published a state- ment falsely and maliciously charging that an inspector of weights and measures "doctored" and "tampered" with them, the question of privi- lege does not extend to false charges maliciously made. Eviston v. Cramer, 47 Wis., 659; 3 N. W. Rep., 392. 3. The defendant in his answer in a libel suit admitted the fact of publi- cation but denied malice. It was held that any evidence was admissible which would throw light upon his motive, not in mitigation of actual but of exemplary damages. Thompson v. Powning, 15 Nev., 195. 4. A false and injurious publication made in a newspaper ' ' for sensation and increase of circulation" is malicious. Maclean v. Scripps, 5» Mich., 214. 5. In a suit by A. against B. for writing a letter to an insurance com- pany to the effect that A. had burned his store in order to get the insurance money, B. denied that he had written the letter with any malice. It was held he might be cross-examined as to the effect of A.'s business on his, in- asmuch as they were rivals in business. Hubbard v. Rutledge, 57 Miss., 7. 6. Evidence that defendants refused to pubUsh a card expressing a belief in plaintiff's innocence save as an advertisement, held admissible on the question of intent. Barnes v. Campbell, 60 N. H., 27. 7. Evidence tending to show that defendant did not act wantonly or rashly, and that he had probable cause for what he said, is admissible under 1 Gardner v. Slade et ux., 13 Q. B., 1 Jur. (N. S.), 846 ; 25 L. J., Q. B., 25 ; 798; 18 L. J., Q. B., 336. Brett v. Watson, 20 W. E., 723; Ker- ^Caulfield v. Whitworth, 16 W. E., shaw v. Bailey, 1 Ex., 743; 17 L. J., 936; 18 L. T., 527. Ex., 129; Scarll v. Dixon, 4 F. & F., 'Howe V. Jones, 1 Times L. E., 250; Pater v. Baker, 3 C. B., 831; 16 462; Lewis andHerrick v. Chapman, L. J., C. P., 124; 11 Jur., 370; Tomp- 2 Smith (16 N. Y.), 369; Vanderzee son v. Dashwood, 11 Q. B. D., 43; 52 V. McGregor, 12 Wend., 546; Fowlea L. J., Q. B., 425; 48 L. T., 943; 48 V. Bowen, 3 Tiffany (30 N. Y.), 20. J. P., 55. * Harrison v. Bush, 5 E. & B., 350 ; 32.6. MALICE. a defense of privileged oomtnunioation, it tending tb rebut the presump- tion of malice -which might be inferred from the language. Mayo v. Sam- ple, 18 Iowa, 306. 8. The defendant in an action of slander, for the purpose of disproving malicious intent, should be allowed to show that what he said was public rumor, and was so spoken of by him, or had been told to' him by another, •whose name he mentioned at the time. Tarr v. Rasee, 9 Mich., 353. See Binns v. Stokes, 37 Mich., 339. 9. Circumstances tending to disprove malice are admissible, in a slander suit in mitigation of damages. But evidence of the apparent good humor of the defendant, when uttering language clearly slanderous, does not so tend to dispi'ove malice. Weaver v. Hendricks, 30 Mo., 573. 10. In a legal sense malice, as an ingredient of an action of libel or slan- der, signifies nothing more than a wrongful act done intentionally without just cause or excuse. Where the publication imputes a crime so as to be actionable per se, or is actionable only on averment and proof of special damages, if the publication is not justified by proof of its truth, or by the privileged occasion of publication, the law conclusively presumes malice such as is essential to the action. King v. Patterson (N. J,), 9 Atl. Rep., 705. 11. In slander the question of malice is for the jury to determine upon all the facts and conversations in connection with which the words were spoken. McKee v. Ingalls, 5 111. (4 Scam.), 30. 12. The defendant may show, to disprove malice and mitigate damages, that when the words were spoken his mind was so besotted by a long course of dissipation, and his character so depraved, that no one who knew him would pay any attention to what he might utter, or give any credence to a slanderous charge he might make. Gates v. Meredith, 7 Ind., 440. 13. The belief of the defendants in the truth of the charges contained in the publication does not destroy the presumption of malice. Malice need not be proved, but will be implied if the charge be false; and in determin- ing the question of justification, the motives of the defendant will not be taken into consideration. Malice, said to be the gist of the action in suits for libel op verbal slander, does not mean malice or ill-will toward the indi- viduals affected, in the ordinary sense of the term. In ordinary cases of slander the term " maliciously,!' without any legal ground of excuse. Malice is an implication of law from the false and injurious nature of the charge, and differs from actual malice or ill-will toward the individual fre- quently given in evidence to enhance the damages. King v. Root, 4 Wend., 113. 14. The words spoken charged the plaintiff with attempting to produce a '■ bogus baby ; " the defendant admitted their falsity and set up in miti- gation of damages that, in common with others, he believed the charge; he offered to show that the physical condition of the father was such as to in- duce a sincere belief that at the time he was incapable of procreation. Held, that the evidence was proper on the question of damages, as going to show absence of malice and a well-founded belief. Weed v. Bibbins, 33 Barb. (N. Y.), 315. 15. Certain butchers, including defendant, had formed a union to exclude western meat. Defendant was accused of having bought western meat EVIDENCE — ILLUSTRATIONS. 327 and withdrew from the union. He was twitted with doing so, ancj replied charging plaintiff, who was the only butcher then engaged in killing, with killing diseased cattle. Held, that a refusal to charge that there was no evidence of expi-ess malice was proper, especially as defendant pleaded the truth of the defamatory utterances. Blumhar'dt v. Rohr (Md.), 17 Atl. Bep., 2G6. IG. It was proper to instruct that the word "malicious" is not to be considered in the sense of spite or hatred, but as meaning that the person is actuated by improper and indirect motives other than the mere purpose of protecting the public health, or vindicating public justice'. Id. 17. In ordinary cases of slander, or libel it is not necessary to allege in the declaration that the words were spoken or the publication made ma- liciously; it is suiScient to aver that it was done falsely and injuriously. King V. Root, 4 Wend., 113. § 27. Digest of English Cases.— 1. Plaintiff was town clerk and clerk to the borough justices. Defend- ant said that he should feel great pleasure in ridding the borough of men. like the plaintiff. So he sent a petition, charging plaintiff with corruption, in his olHce and praying for an inquiry, to an official who had no jurisdic- tion over the matter. "Verdict ijor the plaintiff. Damages £100. Blagg v. Sturt, 10 Q. B., 899; 16 L. J., Q. B., 39; 11 Jur., 101; 8 L. T. (O. S.), 135. -. It is some evidence of malice that plaintiff and defendant are rivals in, trade, or that they competed together for some post and plaintiff succeeded, and that then defendant being disappointed wrote the libel. Warman v. ffine, 1 Jur., 820; Smith v. Ulathews, IMoo. & Rob., 151. 3. The defendant tendered to Brown at Crickhowell, two £1 notes on the plaintiffs' bank, which Brown returned to him, saying there was a run upon, that bank, and he would rather have gold. The defendant the very next day went into Brecon and told two or three people confidentially that the plaintiffs' bank had stopped, and that nobody would take their bills. Held, that this exaggeration was some evidence of malice to go to the jury. Verr diet for the defendant. Bromage v. Prosser, 4 B. & Cr., 347; 6 D. & R., 396; 1 C. & P., 475. And see Senior v. Medland, 4 Jur. (N. S.), 1039. 4. A gentleman told the second master of a school that he had seen one of the under-masters of the school on one occasion coming home at night " under the influence of drink," and desired him to acquaint the authorities with the fact. The second master subsequently stated to the governors that it was notorious that the under-master came home " almost habitually in a state of intoxication." There was no other evidence of malice. Held, that Cockburn, C. J., was right in not withdrawing the case from the jury. Hume v. Marshall, Times for November 23, 1877. 5. The justices were about to swear in the plaintiff as a, paid constable, when defendant, a parishioner, came forward and stated that the plaintiff was an improper person to be a constable. Held, that the fact that several other persons besides the justices were present as usual did not destroy the privilege attaching to such bona fide remark. Kershaw v. Bailey, 1 Ex., 748; 17 L. J., Ex., 139. 6. Where a master has given a servant a bad character, the circumstancea under which they parted, any expressions of ill-will uttered by the master 328 MALICE. then or subsequently, the fact that the master never complained of the plaintiff's misconduct whilst she was in his service, or when dismissing her would not specify the reason for her disnoiissal and give her an opportunity of defending herself, together with the circumstances under which the character was given, and its exaggerated language, are each and all evi- dence of malice. Kelly v. Partington, 4 B. & Adol., 700; 3 N. AM., 460; Jackson v. Hopperton, 16 C. B. (N. S.), 829; 12 W. R., 913; 10 L. T., 529. 7. And in such a cas6 plaintiff is permitted to give general evidence of his or her good character in order to show that the defendant must have known she did not deserve the bad character he was writing. Fountain v. Boodle, 3 Q. B., 5; 3 G. & D., 455; Rogers v. Sir Gervas Clifton, 8 B. & P., 587. 8. A colonel was dismissed from his command in consequence of charges made by the defendant. A member of parliament gave notice that he TTOuld ask a question in the house of commons relative to this dismissal. Defendant thereupon called on the member, whom he knesw, to explain matters. The conversation that ensued was held to be prima fade privi- leged ; but on proof that the charges were made not from a sense of duty, but from personal resentment on account of other matters, and that the ob- ject of the conversation was to prejudice the plaintiff by reason of such personal resentment, held, that there was actual malice, taking away the privilege. Dickson v. The Earl of Wilton, 1 F. & F., 419. 9. It is usual for a former master to give the character of a servant on application, and not before. ' Hence, if a master hears a discharged servant is applying for a place at M.'s house and writes at once to M. to give tlie servant a bad character, the fact that the communication was uncalled for will be apt to tell against the master. M. would almost certainly have ap- plied to the defendant for the information sooner or later; and the eager- ness displayed in thus imparting it unasked will be commented on as proof of malice, and if there be any other evidence of malice, however slight, may materially influence the verdict. But if there be no other evidence of malice, the communication is still privileged. Pattison.v. Jones, 8 B. & C, 578;3M. & R, 101. 10. The defendant on being applied to for the character of the plaintiff, who had been his saleswoman, charged her with theft. He had never made such a charge against her till then r he told her that he would «ay nothing about it if she resumed her employment at his house ; subsequently he said that if she would acknowledge the theft he would give her a character. Held, that there was abundant evidence that the charge of theft was made mala fide, with the intention of compelling plaintiff to return to defend- ant's service. Damages, £60. Jackson v. Hopperton, 16 C. B. (N. S.), 829; 13 W. R., 913; 10 L. T., 529; Rogers v. Clifton, 3 B. & P., 587. 11. The defendant made a charge of felony against his former shopman to his relatives during his absence in London, with a view of inducing them to compound the alleged felony, and not for the purpose of prosecution or investigation. He actually received £50 from plaintiff's brother as hush- money. Held, that the charge of felony was altogether unprivileged. Hooper v. Truscott, 3 Bing. N. C, 457; 3 Scott, 672. 12. Even though a report of judicial proceedings be correct and accurate. MALICE INFEKEED ILLTJSTEATIONS. 329 still if it be published from a malicious motive, whether by a newspaper reporter or any one else, the privilege is lost. Stevens Sampson, 5 Ex. D., 53; 49 L. J., Q. B.. 130; 28 W. R., 87; 41 L. T., 783. § 28. Malice Inferred.— When the speaking or publishing of slanderous words is once proved malice is inferred. If the words are used in an unqualified manner, whether the speaker was in jest or in earnest, whether he expected to be believed or disbelieved, the mischief is the same, and no legal distinc- tion can be drawn in favor of the guilty party.* § 29. Illustrations — Digest of American Cases. — 1. The wilful publication of injurious statements for no good purpose or justifiable end is malicious, even if done without actual personal ill-will. Maclean v. Scripps, 17 N. W. Eep., 815, and 18 N. W. Rep., 309; 52 Mich., 314. , 2. In the case of oral defamation, as in the case of written, if the words uttered are not privileged the law implies malice. Byam v. Collins, 19 N. r. S. R., 581 ; 19 N. E. Rep., .75. 3. Malice is the gist of an action of slander, and the speaking of action- able words is evidence of malice: but this may be rebutted by proof of other parts of the same conversation explanatory of the alleged slanderous words. JVTKee v. Ingalls, 5 111. (4 Scam.), 30. 4. In an action against a railroad company for libel in publishing plaint- ifPs name on the " black-list" as an employee discharged for incompetency, it is error to instruct that the malice essential to such a libel is express mal- ice, which means wicked intent, and that such intent must be proved like any other fact, and is never to be presumed, since the jury may infer the intent from the fact that the publication was false and injurious. Bebee V. Missouri Pac. R'y Co. (Tex.), 9 S. W. Rep., 449. 5. But though malice is generally to be inferred from the libelous nature of a publication, or its falsity — and it is to be taken as false till proved true by the defendant — yet the inference of malice in either case may be repelled by the circumstances of the publication, as the manner and the occasion. For example, a master, on inquiry, giving a character to a serv- ant; publication in the course of legal or judicial proceedings; in the exercise of church discipline; an application to the proper authority for redress of grievances, or for the removal of an officer to the person possess- ing the power to remove. In such case express malice must be proved in order to maintain an action. But the publication in a newspaper of a false libel in relation to a candidate for office (for example, a candidate for the office of lieutenant-governor), though such publication be by a voter, the editor of the paper, in the course of a contested election, is not an exception to the general rule. Malice will, therefore, in such case, be implied from the publication of the falsity ; and in an action for such a libel the defend- ant is bound to show its truth in order to justify. Root v. King, 7 Cow. (N. Y.). 613. 6. If the plaintiff has been injured in his character or feelings by an un- 1 Hatch v. Potter, 2 Gilm. (111.), 725; Hamilton v. Eno, 81 N. Y., 116. 330. MAI-ICE. authorized, publication, it is the, duty of a jury to award him full com- pensation in damages without ref erenceto any. payticular ill-will entertained against him by the defendant. Ill-will or malice will enhance the damages, but need not be shown to entitle a p^aintiS to a recovery. King v. Boot, 4 Wend., 113. 7. In all cases of defamation, whether' oral or written, malice is an essen- tial ingredient and must^be averred. But when it is averred and the lan- guage is proved; the law will infer malice. until the proof, in the event of denial, be overthrown, or the language itself satisfactorily explained. Dil- lard V. Collins, 35 Gratt. (Va.), 343. , 8. The fact that a statement in a newspaper concerning a person tending to vex or injure him is false is conclusive of malice. Dakota Territory v. Taylor, 1 Dak. Ty., 471. 9. An instruction in an action for libel that malice cannot be presumed, but must-be proved like any other fact, is erroneous where it is not ex- plained to the jury that it may be inferred from acts or words, and need not be established by direct evidence. Bebee v. Missouri Eac. R. Co. (Tex.), ' 9 S. W. Eep., 499. 10. Malice is implied as well from oral as from written defamation, where the communication is not privileged. Danforth, J., dissenting, Byam v. Collins (N. Y.), 19 N. E. Rep,, 75. 11. While the law implies malice from the use of words actionable in themselves, the implication may be explained and rebutted by circum- stances. The words may be shown to have been used with reference to a known act, and to have been so understood by those present, "and that such act was not in point of law a felony. It is proper to submit the intent of the publication to the jury. Welker v. Butler^ 15 Brad. (111.), 309. § 30. Digest of English Cases.— 1. A gentleman told the second master of a school that he had seen one of the under-masters of the school on one occasion coming home at night " under the influence of drink," and desired him to acquaint the authorities with the fact. The second master subsequently stated to the governors that it was notorious that the under-master came home " almost habitually in a state of intoxication." There was no other evidence of malice. Held, that Cockburn, C. J., was right in not withdrawing the case from the jury. Hume v. Marshall, Times for November 28, 1877. 2. Defendant changed his printer, and on a privileged occasion stated in writing, as his reason for so doing, that to continue to pay the charges made by his former printer, the plaintiff, would be " to submit to what ap- pears to have been an attempt to extort money by misrepresentation.'' Held, that these words, imputing improper motives to the plaintiff, were evi- dence of malice to go to the jury. Cooke v. Wildes, 5 E. & B. , 328 ; 24 L. J., Q. B., 367; 1 Jur. (N. S.), 610; 3 C. L. R,, 1090; O'Donoghue v. Hussey, Ir. R., 3 C. L., 124. 3. Plaintiff sued defendant on a bond ; defendant in public, but on a privileged occasion, denounced the plaintiff for attempting to extort money from him. Held, that the words were in excels of the occasion. Robertscin V. M'Dougall, 4 Bing., 670; 1 M. & P., 092; 3 C. & P., 259. See Tusori v. Evans, 12 A. 1. 3. Where a master has given a servant a bad character, the circumstances under which they parted, any expressions of ill-will uttered by the master then or subsequently, the fact that the master never complained of the plaintiff's misconduct whilst she was in his service, or when dismissing her would not specify the reason for her dismissal and give her an opportunity of defending herself, together with the circumstances under which the character was given, and its exaggerated language, are each and all evi- dence of malice. Kelly v. Partington. 4 B. & Adol., 700; 2 N. & M., 460; Jackson v. Hopperton, 16 C. B. (N. S.), 829; 12 W. R., 913; 10 L. T., 529. 4. In such a case plaintiff is permitted to give general evidence of his or her good character in order to show that the defendant must have known she did not deserve the bad character he was writing. Fountain v. Boodle, 8 Q. B., 5; 3 G. & D., 455; Rogers v. Sir Gervas Clifton, 3 B. & P., 587; Odgers on L. & S., 281, 208. 5. Defendant charged the plaintiff, his porter, with stealing his bed- sticks, and, with plaintiff's permission, subsequently searched his house, but found no stolen property. The jui-y found that the defendant bona fide be- lieved that a robbery had been committed by the plaintiff, and made the charge with a view to investigation ; but added, " the defendant ought not to have said what he could not prove." Held, that this finding was imma- terial ; that the occasion was privileged, and that there was no evidence of malice. Judgment for the defendant. Howe v. Jones, 1 Times L. R., 19, 461 ; Fowler and wife v. Homer, 3 Camp., 394. 6. The defendant was a customer at the plaintiff's shop, and had occasion to complain of what he considered fraud and dishonesty in the plaintiff's conduct of his business; but, instead of remonstrating quietly with him, the defendant stood outside the shop-door and spoke so loud as to be heard by every one passing down the street. The language he employed, also, was stronger than the occasion warranted. Held, that there was evidence of malice to go to the jury. Damages 40s. Oddy v. Lord George Paulet, 4 F. & F., 1009; Wilson v. Collins, 5 C. & P., 373. § 45. The Mode and Extent of Publication.— The plaintiff is not restricted to extrinsic evidence of malice;' he may rely- on the words of the libel itself and the circumstances attend- ing its publication ; or, in the case of slander, upon the exag- gerated language used, or the fact that third persons were present who were not concerned in the matter, and other like attendant circumstances. 1 Wright V. Woodgate, 3 C, M. & R., 578; 1 Tyr. & G., 13; 1 Gale, 339. 340 MALICE. § 46. Digest of English Cases.— 1. Defendant wrote to his wife's uncle telling him that his son and heir was leading a fast, wild life, and was longing for his father's death, and that all his inheritance would not be sufficient to satisfy his debts. The court of star chamber were satisfied that this letter was written with the inten- tion of alienating the father from the son, and inducing the father to leave his lands and money to the defendant or his wife, and not from an honest desire that the son should reform his life; and they fined defendant £300. Peacock v. Eeynal, 3 Brownlow & GolJesborough, 151. SJ. Plaintiff assaulted the defendant on the highway ; the defendant met a constable and asked him to arrest the plaintiff. The constable refused to arrest the plaintiff unless he was charged with a felony. The defendant knowing full well that the plaintiff had committed a misdemeanor only, viz., the assault, charged him with felony in order to get him locked up for the night. Held, that the charge of felony was malicious, as being made from an indirect and improper motive. Smith v. Hodgeskins, Cro. Car., 376. 3. A near relative may warii a lady not to marry a particular suitor and assign his reasons for thus cautioning her, provided this be done from a conscientious desire for her welfare and in the bona fide belief that the charges made are true. Todd v. Hawkins, 3 M. & Rob., 20; 8 C. & P., 888. § 47. Intemperate Expressions, Exaggerated and Unwar- rantable. — "It is sometimes diflScult to determine when de- famatory words in a letter may be considered as by themselves affording evidence of malice." ' But the test appears to be this : Taking the facts as they appeared to the defendant's mind at the time of publication, are the terms used such as the de- fendant might have honestly and lonafide employed under the circumstances ? If the defendant honestly believed the plaintiffs conduct to be such as he described it, the mere fact that he, used strong words in describing it is no evidence of malice.^ The fact that the expressions are angry and intemperate is not enough; the proof must go further and show that they are malicious.' But where the language used, though taken in connection with what was in defendant's mind at the time, is " much too violent for the occasion and circumstances to which it is ap- plied," or " utterly beyond and disproportionate to the facts,", or where improper motives are unnecessarily imputed, there 'Bramwell, L. J., 3 Q. B. D., 345. 675; 38 L. J., Ex., 138; Odgers on L. 2 Spill V. Maule, Exoh. Ch., L. R., & S., 384. 4 Exch., 233; W. R., 805; 20 L. T., sghipley v. Todhunter, 7 C. & P., 690. INTEMPERATE EXPRESSION'S ILLUSTRATIONS. 341 is evidence of malice to go to the jury.^ For in such a case it may be inferred that the defendant bore plaintiff a grudge, or had some sinister motive in writing as he did. § 48. Illustrations — Digest of American Cases. — 1. In an action for slander, the words alleged were: "You are a thief, a rogue and a robber, and I can prove it." There was evidence tending to show that plaintiff had gone into defendant's house in his absence, and taken a boy away by force for an alleged crime, and in the affair used harsh language to, and greatly terrified, defendant's wife, with whom he was unacquainted. Returning a few moments later, defendant, finding his wife much excited, and learning the cause, went to plaintiff for an explanation, and, according to some of the testimony, was received with insult, where- upon a quarrel ensued, in which he used the language complained of. The court charged that if defendant's language was a mere outbui-st of passion, induced by plaintiff's conduct towards his wife and himself, and was neither intended nor understood by the by-standers to charge plaintiff with the commission of a crime, they should find for defendant. Held a proper in- struction. Ritchie v. Stenius (Mich.), 41 N, W. Rep., 687. 2. Under such circumstances it is not improper to charge, as bearing upon defendant's provocation, that plaintiff's entry into defendant's house to arrest the boy was unlawful, as that question is immaterial; the important matter being whether the defendant uttered the language in a passion, pro- duced by a knowledge of plaintiff's misbehavior towards his wife, and his subsequent insult to himself, and without malice. Ritchie v. Stenius, 41 N. W. Rep., 687. 3. A gross and brutal communication made by a husband to his wife in a stormy interview, while an action bi'ought by her for the annulment of their marriage was pending, in which he makes slanderous charges against a woman who had testified in behalf of the wife in such suit, may warrant the jury in inferring malice, and in finding that it was not privileged, under California Civil Code, section 47, by reason of the relation of the parties. Sesler v. Montgomery (Cal.), 19 Pac. Rep., 686. § 49. Digest of Englisli Cases.— 1. The defendant wrote a letter to be published in the newspaper. The careful editor struck out all the more outrageous passages, and published the remainder. The defendant's manuscript was admitted in evidence, and the obliterated passages read to the jury, to show the animus of the defendant. Tarpley v. Blaby, 2 Scott, 643; 3 Bing. N. C, 437; 1 Hodges, 414; 70. &P., 395. 2. Defendant changed his printer, and on a privileged occasion stated in writing, as his reason, for so doing, that to continue to pay the charges made by his former printer, the plaintiff, would be " to submit to what ap- pears to have been an attempt to extort money by misrepresentation." Held, that these words, imputing improper motives to the plaintiff, were iFryer v. Kinnersley, 15 C. B. (N. Ex., 615; 38 L. J., Ex., 153; 18 Jur., S.), 433; 83 L. J., C. P., 96; 13 W. R., 393. 155; 9 L. T., 415; Gilpin v. Fowler, 9 342 MALIOE. evidence of malice to go to the jury. Damages. £50. Cooke v. Wildes, 5 E. & B., 328; 34 L. J., Q. B., 367; 1 Jur. (N. S.), 610; 3 C. L. R., 1090; O'Donoghue v. Hussey, Ir. R., 5 C. L., 124. 3. Plaintiff sued defendant on a bond ; defendant in public, but on a priv- ileged occasion, denounced the plaintiff for attempting to extort money from him. Held, that the words were in excess of the occasion. Robert- son V. M'Dougall, 4 Bing., 670; 1 M. & P., 692; 3 C. & P., 359. See Tuson V. Evans, 13 A. & E., 733. 4. Defendant charged the plaintiflF, his porter, with stealing his bed-sticks, and with plaintiflf's permission subsequently searched his house, but found no stolen property. The jury found that the defendant iona fide believed that a robbery had been committed by the plaintiff, and made the charge with a view to investigation ; but added, " the defendant ought not to have said what he could not prove." Held, that this finding was immaterial, that the occasion was privileged, and that there was no evidence of malice. Judgment for the defendant. Howe v. Jones, 1 Times L. R., 19, 461 ; Fow- ler and wife v. Homer, 3 Camp., 394. 5. Where the defendant verbally accused plaintiff of perjury, evidence that subsequently to the slander defendant preferred an indictment against the plaintiff for perjury, which was ignored by the grand jury, was re- ceived as evidence that the slander was deliberate and malicious, although it was a fit subject for an action for malicious prosecution. Tate v. Hum- phrey, 3 Camp., 73, n. ; Finden v. Westlake, Moo. & Malkin, 461. 6. Plaintiff brought an action against defendant, and applied for an in- junction. Defendant applied at the same time for a receiver, which was refused. Thereupon the defendant said that he would " make it d d hot for Dodson," and inserted in a newspaper he owned a report of the ap- plication, setting out all his own counsel had said against plaintiff's solv- ency, etc., at full length, but omitting all mention of plaintiff's aflSdavit. Held, ample evidence of malice. Damages £350. Dodson v. Owen, 3 Times L. R., 111. § 50. The Method of Communication Employed (see Pub Ucation). — If the mode and extent of a privileged publication be deliberately made more injurious to the plaintifif than nec- essary, this is evidence of malice in the publisher. Confiden- tial communications should not be shouted across the street for all the world to hear.' Defamatory remarks, if written at all, should be sent in a private letter properly sealed and fastened up, not written on a post-card, or sent by telegraph; for two strangers at least read every telegram ; many more most post-cards.2 Letters as to the plaintiff's private affairs should not be published in the newspaper, however meritorious the writer's purpose may h&: unless, indeed, there is no other 1 Wilson V. Collins, 5 C. & P., 373. field v. S. E. R'y Co., E., B. &E., 115; 2 Williamson v. Freer, L. R., 9 C. Robinson v. Jones, 4 L. R., Ir., 391. P., 893; 43 L. J., C. P., 161; Whit- METHOD OF COMMUNICATION — ILLUSTRATIONS. 343 way in which the writer can eflBciently effect his purpose and discharge the duty which the law has cast upon him. But where it is usual and obviously convenient to print such a communication as that complained of, before circulating it among the persons concerned, the privilege will not be lost merely because of the necessary publication to the compositors and printers employed in printing it.' So with an advertise- ment insei'ted in a newspaper defamatory of the plaintiff ; if such advertisement be necessary to protect the defendant's in- terests, or if advertising was the only way of effecting the defendant's object, and such object is a legal one, then the circumstances excuse the extensive publication. But if it was not necessary to advertise at all, or if the defendant's object could have been equally well effected by an advertisement which did not contain the words defamatory of the plaintiff, then the extent given to the announcement is evidence of malice to go to the jury.^ The law is the same as to posting libelous placards,' or having a libelous notice cried by the town crier.* § 51. Illustrations — Digest of American Cases. — 1. In an action for slander it is competent for the defendant to show that the words were uttered before a tribunal of a religious society of which the plaintifiE and defendant were both members, for the purpose of disproving malice. The decision of such tribunal, however, is incompetent evidence. Whitaker v. Carter, 4 Ired. (N. C.) L., 461. 2. It is admissible to show that a newspaper article ridiculing the plaintiff was inserted as a joke, and arose out of a mutual banter. Sulling v. Shake- speare, 46 Mich., 408; 9 N. W. Rep., 451. S. A printer's mistake, without wrongful intent, cannot be held a mali- cious libel. Sulling v. Shakespeare, 46 Mich., 408; 9 N. W. Rep., 451. § 52. Digest of English Cases.— 1. If libelous matter which would have been privileged if sent in a sealed letter be transmitted unnecessarily by telegraph, the privilege is thereby lost. Williamson v. Freer, L. R,, 9 C. P., 393; 43 L. J., C. P., 161; 33 W. R., 878; 30 L. T., 333. 2. An Irish court will take judicial notice of the nature of a post-card, and will presume that others besides the person to whom it is addressed will read what is written thereon. Robinson v. Jones, 4 L. R., Ir., 391. 1 Lawless v. Anglo-Egyptian Cot- A. & E., 795, explaining Delany v. ton and Oil Co., L. R., 4 Q. B., 363. Jones, 4 Esp., 191. 2 Smith V. Smith (Mich.), 41 N. ^ Cheese v. Scales, 10 M. &W., 48a \V. Rep., 499; Brown v. Croome, 3 ^Odgers on L. & S., 386 ; Woodard Stai-k., 397; and Lay v. Lawson, 4 v. Dowsing, 3 Man. & Ry., 74 344 MALICE. 3. The defendant was a customer at the plaintiff's shop, and had occasion to complain of what he considered fraud and dishonesty in the plaintiff's conduct of his business ; but instead of remonstrating quietly with him, the defendant stood outside the shop-door, and spoke so loud as to be heard -by every one passing down the street. The language he employed also was stronger than the occasion warranted. Held, that there was evidence of malice to go to the jury. Oddy v. Lord George Paulet, 4 F. &. F., 1009. And see Wilson v. Collins, 5 C. & P., 373. 4. While the defendant was engaged in winding up the affairs of the plaintiff's firm, of which defendant was also a creditor, the plaintiff took from the cash-box a parcel of bills to the amount of £1,364. Thereupon the defendant wrote to another creditor of the firm that the conduct of the plaintiff " has been most disgraceful and dishonest, and the result has been to diminish materially the available assets of the estate." Held, that the occasion was privileged, and that though the words were strong, they were, when taken in connection with the facts, such as might have been used honestly and bona fide by the defendant ; for the plaintiff's conduct was equivocal, and might well be supposed by the defendant to be such as he described it ; and that the judge was right in directing a verdict to be en- tered for the defendant, there being no other evidence of actual malice. Spill V. Maule (Exch. Ch.), L. R., 4 Ex., 332; 38 L. J., Ex., 138; 17 W. E., 805; 20 L. T., 675. § 53. Privileged Communications — Undue Publicity.— The distinction should be observed between publications which are not privileged, and circumstances showing malice which render a clearly privileged publication actionable. To delib- erately give any unnecessar\'' publicity to statements defama- tory of another raises a suspicion of malice. But if a person accidentally or inadvertently communicates the statement to another who is unconcerned in its subject-matter, having no formed intention or desire of defaming the plaintiff to him, it is no evidence of malice ; though it may be that the publica- tion to him is not privileged from the beginning.^ If, in writ- ing or speaking on a privileged occasion, a person breaks out into irrelevant charges against another, wholly unconnected with the occasion from whence the privilege is derived, such excess va&j be regarded as evidence of malice, making the relevant matter actionable ; but it is more accurate to say that such irrelevant charges are wholly unprivileged, and no ques- tion of actual malice arises as to them.^ So the fact that a person volunteered the information is no evidence of malice if it 1 Tompson v. Dashwood, 11 Q. B. 2 Huntley v. Ward, 6 C. B. (N. S.), D., 48; 52 L. J., Q. B., 425; 48 L. T., 514; 6 Jur. (N. S.), 18; Warren t. 943 ; 48 J. P„ 55. Warren, 1 C, M. & R. , 351 ; 4 Tyr., 850. PEIVILEGBD COMMUNICATIONS ILLtfSTEATIONS. 3i5 was his duty to volunteer it. But if the interference was offi- cious and uncalled for, then the communication never was privileged, and no inquiry need be made as to the existence of malice. In a privileged oral communication it is important to ob- serve who is present at the time it is made. A desire should be shown to avoid all unnecessary publicity. It is true that the accidental presence of an uninterested bj^-stander will not alone take the case out of the privilege, and there are some communications which it is wise to make in the presence of witnesses; but if it can be proved that defendant purposely chose a time for making the communication when others were by, whom he knew would act upon it, this is evidence of mal- ice.' § 54. Illustrations — Digest of American Cases. — 1. Where the alleged slanderous statement has been shown to be priv- ileged the burden then rests on the plaintiff to prove express malice. Fahr V. Hayes (N. J.), 13 Atl. Rep., 261. 2. Privileged communications are prima facie excusable from the cause or occasion of the speaking or writing ; but even in the case of such com- munications an action will lie if the party making the communication knows the charge to be false and adopts that mode of gratifying his ill-will or malice. In such case, however, actual malice must be shown, and the question will be submitted to the jury ; in ordinary slander the question of malice is never submitted to a jury except as to the amount of damages. King V. Root, 4 Weud., 113. § 55. Digest of English Cases.— 1. A shareholder in a railway company himself invited reporters for the press to attend a meeting of the shareholders which he had summoned, and at which he made an attack upon one of the directors. Held, that the privilege was lost thereby. Parsons v. Surgey, 4 F. & F., 247. See Davia V. Cutbush, 1 F. & F., 487. a. That defendant caused the libel to be industriously circulated is evi- dence of malice. Gathercole v. Miall, 15 M. & W., 319; 15 L. J., Ex., 179; 10 Jur., 337. 3. Defendant, having lost certain bills of exchange, published a handbill offering a reward for their recovery, and adding that he believed they had been embezzled by his clerk. His clerk at that time still attended regu- larly at his office. Held, that the concluding words of the handbill were quite unnecessary to defendant's object, and were a gratuitous libel on the plaintiff. Finden v. Westlake, Moo. & Malk., 461. 4. Defendant accused the plaintiff, in the presence of a third person, of stealing his wife's brooch; plaintiff wished to be searched; defendant re- peated the accusation to two women, who searched the plaintiff and found lodgers on L. & S., 288. 346 MALICE. nothing. Subsequently it was discovered that defendant's wife had left the brooch at a friend's house. Held, that the mere publication to the two women did not destroy the privilege attaching to charges, if made bona flde, but that all the circumstances should have been left to the jury. Padmore v. Lawrence, 11 A. & E., 380; 4 Jur., 458; 3 P. & D., 209. And see Amann v. Damm, 8 C. B. (N. 8.), 597; 39 L. J., C. P., 313; 7 Jur. (N. S.), 47; 8 W. R., 470. 5. In an action for libel and slandex on privileged occasions, the only evi- dence of malice was some vague abuse of the plaintiff, uttered by the de- fendant on the Saturday before the trial in a public house at Rye. Such abuse had no reference to the slander or the libel or to the action. Held, that this evidence was admissible ; but that the judge should have called the attention of the jury to the . vagueness of the defendant's remarks in the public house, to the fapt that they were uttered many months after the alleged slander and libel, and that therefore they were but very faint evidence thai the defendant bore the plaintiff malice at the time of the publication of the alleged slander and libel. A new trial was ordered. Costs to abide the event. Hemmings v. Gasson, E., B. & E., 346; 37 L. J., Q. B., 253; 4 Jur. (N. S.), 834. 6. The fact that defendant's wife was present on a privileged occasion, and heard what her husband said, will not take away the privilege so long as her presence, though unnecessary, was not improper. Jones v. Thomas, 84 W. R., 104; 53 L. T., 678; 50 J. P., 149. 7. Where a master about to dismiss his servant for dishonesty calls in a friend to hear what passes, the presence of such third party will not destroy the privilege. Taylor v. Hawkins, 16 Q. B., 308; 20 L. J., Q. B., 313; 15 Jur., 746. 8. Where a master discharged his footman and cook, and they asked him his reasons for doing so, and he told the footman, in the absence of the cook, that " he and the cook had been robbing him," and told the cook in the absence of the footman that he had discharged her "because she and the footman had been robbing him," held, that these were privileged communications as respected the absent parties, as well as those to whom they were respectively made. Manby v. Witt and Eastmead v. Witt, 18 C. B., 514; 35 L. J., C. P., 294; 3 Jur. (N. S.), 1004. 9. The defendant, in a petition to the house of commons, charged the plaintiff with extortion and oppression in his office of vicar-general to the bishop of Lincoln. Copies of the petition were printed and delivered to the members of the committee appointed by the house to hear a,nd examine grievances, in accordance with the usual order of proceeding in the house. No copy was delivered to any one not a member of parliament. Held, that the petition was privileged, although the matter contained in it was false and scandalous, and so were all the printed copies; for, though the printing was a publication to the printers and compositors, still it was the usual course of proceeding in parliament ; and it was not so great a publication as to have so many copies transcribed by several clerks. Lake v. King, 1 Lev., 240; 1 Saund., 131; Sid., 414; 1 Mod., 58. See Lawless v. Anglo- Egyptian Cotton and Oil Co., Limited, L. R., 4 Q. B., 363; 10 B. & S., 229; 38 L. J., Q. B., 129; 17 W.B., 498. PLEA OF JUSTIFICATION. 3iT 10. A speech made by a member of parliament in the house is absolutely- privileged ; but if he subsequently causes his speech to be printed and pub- lished with the malicious intention of injuring the plaintiff, he will be liable both ciTilly and criminally. R. v. Lord Abingdon, 1 Esp., 236; R. v. Cree- vey, 1 M. & S., 273. 11. The rector dismissed the parish schoolmaster for refusing to teach in the Sunday school. The schoolmaster opened another school on his own account in the parish. The rector published a pastoral letter warning all parishioners not to support " a schismatical school," and not to be partakers with the plaintiff " in his evil deeds," which tended " to produce disunion and schism," and "a spirit of opposition to authority." JleZd, that there was some evidence to go to the jury that the rector cherished anger and malice against the schoolmaster. GilpiV v. Fowler, 9 Ex., 615; 23 L. J., Ex., 152; 18 Jur., 293. § 56. Plea of Justification — TVhen Evidence of Malice.— A plea of justification may be a re-assertion of the libel or slander. No doubt where the words are privileged the mere fact that a plea of justification was put on the record is not of itself evidence of malice sufficient to go to the jury.' But if there be other circumstances suggesting malice, the plaintiff's counsel may also comment on the justification pleaded ; and, in special circumstances, as where the defendant at the trial will neither abandon the plea nor give any evidence in support of it, obstinately persisting in the charge to the last without any sufficient reason, this alone may be sufficient evidence of malice.^ § 57. The Unsettled State of the Law. — Some of our courts hold that a plea of justification in suits for defamation, if un- supported by evidence, is in itself an aggravated repetition of the original defamation and evidence of continuing malice.' Other courts hold the contrary doctrine.^ In some jurisdictibns 1 Wilson V. Robinson, 7 Q. B., 68; man, 18 Penn. St. R. (1 Harris), 619; Caulfield v. Whitworth, 16 W. R., Gorman v. Sutton, 33 id., 247; Doss 936: 18 L. T., 537; Brooke v. Avril- v. Jones, 5 How. (Miss.), 158; Robin- Ion, 43 L. J., C. P., 126. son v. Drummond, 24 Ala., 74; Beas- 2 Warwick v. Foulkes, 13 M. & W., ley v. Meigs, 16 111., 139; Spencer v. 508; Simpson v. Robinson, 13 Q. B., McMasters, id., 405; Smith v. Wy- 511 ; 18 L. J., Q. B., 73. man, 4 Shep., 13. 'Fero V. Ruscoe, 4N. Y., 163; Wil- *Aird v. Fireman's Jour. Co., 10 son v. Robinson, 14 Law Jour. Rep., Daly (N. Y.), 354; Murphy v. Stout, 196, Q. B. ; 9 Jurist, 736; Lee v. Rob- 1 Smith, 356; Shortley v. Miller, id., ertson, 1 Stew., 138 ; Richardson v. 395 ; Shank v. Case, 1 Carter (Ind.), Roberts, 33 Ga., 315; Pool v. Devers, 170; Millisonv. Sutton, id., 508;Starr 30 Ala., 673; Updegrove v. Zimmer- v. Harrington, id., 515. And see 348 MALICE. it is held that when the justification is not fully established the circumstances may be considered in mitigation of damages.' § 58. The Better Eule. — In this state of the authorities we may at least suggest the rule which will best promote the ends of justice. In many of the states a defendant is allowed to file as many pleas as he may deem necessary for his defense, and he therefore has as much right to file a plea of justifica- tion as that of not guilty; and, if he acts in good faith, why should he be anymore censurable in one case than the other? If he pleads a justification in the honest belief that he will be able to sustain it on the trial he ought not to be punished for so doing though he fail to establish it to the satisfaction of the jury. He may be innocently mistaken in the evidence, or he may be unable to make full proof of the defense by reason of the death or absence of his witness. His mere failure to jus- tify should not as a matter of course aggravate the damage. But if he pleads a justification in bad faith, with a view of injuring the plaintiff or without any expectation of supporting it by proof, the jury may properly consider the plea as a reit- eration of the defamatory charge and in aggravation of dam- ages. It is a question of fact for a jury to decide in each case whether the justification was interposed in good or in bad faith.2 Swails V. Butcher, 3 Carter, 84 ; Sloan Chalmers v. Shackell, 6 Car. & P., V. Petrie, 15 111., 435 ; Thomas v. Dun- 475 ; Morehead v. Jones, 3 B. Monroe away, 30 111., 373; Rayner v. Kinney, (Ky.), 210; Shoulty v. Miller, 1 Carter, 14 Ghio (N. S.), 383 ; Pallet v. Sargent, 544. 36 N. H., 496. 2 Sloan v. Petrie, 15 111., 435. 1 McAllister v. Sibley, 2 Me., 474; CHAPTER XYIL EEPETITION OF DEFAMATORY MATTER. § 1. Repetition by the Originator — Competent to Show Malice. 3. Illustrations — Digest of American Cases. 3. Repetition of Slander — Statute of Limitations. 4. Repetition of Slanders Originated by Others. 5. Illustrations — American Cases: A Massachusetts Case, Kinney v. McLaughlin, 71 Mass., 3. An Indiana Case, Funk v. Beardsley, 113 Ind., 190. 6. Digest of American Cases. 7. Digest of English Cases. 8. State of the Law in England. 9. Lord Northampton's Case. 10. The Law in Starkie's Time. 11. Distinction between Libel and Slander. 13. The Person Who Repeats the Slander is Liable. 13. Exceptions to the Rule. 14 Digest of English Cases. § 1. Repetition by the Originator — Competent to Show Malice. — It is always competent in an action for defamation to prove a repetition of slanderous charges for the purpose of showing malice, and it is wholly unnecessary to plead the rep- etition of the words. They are merely evidence upon the question of malice.^ § 2. Illustrations — Digest of American Cases. — 1. Haeley, the plaintiff, brought an action for defamation against Gregg. The first count of his petition was based upon an alleged libel. It appears that the plaintiff was a station agent of the Chicago & Northwestern Rail- road at the village of Nashville, in Iowa, and that the defendant wrote and signed an affidavit and sent it to the superintendent of the company, in which it was charged that Haeley had hired the station-house to two fallen women, for the pui-pose of carrying on their business therein, for which they paid him the sum of $3. A separate paragraph was added to the peti- tion, in which it was averred that the defendant had repeated the slander- ous charges upon which the action was founded. A motion to strike out this paragraph as redundant and irrelevant was sustained. On appeal it was held that the motion was properly sustained — it being unnecessary to iHinkle v. Davenport, 38 la., 355; Haeley v. Gregg, 38 N. W. Rep. (la.), 416; Com. v. Damon, 136 Mass., 448. 350 EKPETITION. plead a repetition of the woi-ds, as evidence of a repetition bears only upon the question of malice. Haeley v. Gregg, 38 N. W. Rep. (Iowa), 416. 2. Under allegations as to a libel, plaintiff can prove republication or a continuous publication of the alleged libel, or of other words written or spoken by defendant before or after the commencement of the action, going to show malice. Behee v. Missouri Pac. R. Co. (Tex.), 9 S. W. Rep., 449. § 3. Repetition of Slanders — Statute of Limitations. — It is well settled that every utterance of slanderous words is a distinct cause of action; and if recovery is sought for repeat- ing a slander the repetition must be declared upon as a sepa- rate cause of action. The mere general allegation of the repetition of the slander is but pleading evidence which is admissible without pleading; for under a single count the ^plaintiff may show repetitions, not for the purpose of sustain- ing the action, but for the purpose of showing malice in the speaking of the words declared upon, and therebj'^ aggravat- ing the damages.' J And where the alleged cause of action is barred by the statute of limitations, it cannot be claimed by the plaintiff that because the alleged defamatory words were repeated at various times up to the commencement of the suit the statute of limitations has no application.^ § 4. Repetition of Slanders Originated by Others. — Every repetition of a slander originated by a third person is a wilful publication of it, rendering the person so repeating it liable to an action. " Tale-bearers are as bad as tale-makers." And it is no defense that the speaker did not originate the scandal, but heard it from another, even though it was a current rumor and he in good faith believed it to be true.' Nor is it any defense that the speaker at the time named the person from whom he heard the scandal.* A man cannot say there is a story in circulation that A. poisoned his wife or B. picked C.'s pocket in the omnibus, or that D. has committed adultery, and relate the story, and when called upon to answer say: " There was such a story in circulation ; I but repeated what I heard, 1 Jean V. Hennesey, 69 Iowa, 373 ; 28 nesey, 69 Iowa, 373; 28 N. W. Rep., N. W. Rop., 645; Campbell v. Butts, 645. 3 N. Y., 178: Howard v. Sexton, 4 » Watkin v. Hall, L. R.,3Q. B., 396; N. Y., 157; Bassell v. Elmore, 48 87 L. J., Q. B., 135; 16 W. R., 857; N. Y., 551; Gribble v. Pioneer Press 18 L. T., 561. Co., 25 N. W. Rep., 719. * M'Pherson v. Daniels, 10 B. & C, 2Vickersv. Stoneman(Mich.,1889), 370; 5 M. & R., 351; Wheeler v. 41 N. W. Rep., 495; Jean v. Hen- Shields, 3 Scam. (111.), 848. ILLL'STEATIOXS — AMERICAN CASES. 351 and had no design to circulate it or confirm it;" and for two very plain reasons: (1) The repetition of the story must in the nature of things give it currency ; and (2) the repetition without the expression of disbelief will confirm it. The dan- ger — an obvious one — is that bad men may give currency to slanderous reports, and then find in that currency their own protection from the just consequences of a repetition.' § 5. Illustrations — American Cases. — 1. In a Massachusetts Case {Kinney v. McLaughlin, 71 Mass., 3), a wit- ness testified that she met McLaughlin's wife, the female defendant, in the street and was asked by her, "If she had heard the story?" to which she answered, "What story?" Defendant replied, " Nothing less than that Agnes is Mr. Moran's kept Miss." Witness replied, "I do not believe it." Defendant said, "It is all over the glass-house." Witness said, 'That could not be ; for her husband, who worked in the glass-house, would have heard of it." Defendant said, " It was not in the upper but the lower glass- house." The defendant claimed that there were such reports current in the community, and she had spoken of them, without in any degree sanc- tioning them or confirming them. Evidence was offered and admitted, against the plaintiff's objection, to sustain the defendant's position. The court instructed the jury that if the defendant merely said there was a re- port in circulation of the kind set forth in the writ, and did not say so with any design to extend its circulation, or in any degree to cause the person whom she addressed to believe or suspect the charge which the stoi-y im- puted to be true, or to add to it any sanction or authority of her own or to give it any further circulation or credit, and it was true that such story was in circulation, it would not be actionable to say so. On appeal the court held the instruction not in conformity to the law as understood in Massachusetts. " The story uttered or repeated by the defendant contained a charge against the plaintiff of a nature to destroy her reputation. It is no answer in any forum to say that she only repeated the story as she heard it. If it was false and slanderous she must repeat it at her peril. There is safety in no other rule. Often the origin of slander cannot be traced. If it were, possibly it might be harmless. He who gives it circulation gives it power of mischief. It is the successive repetitions that do the work. A falsehood often repeated gets to be believed." 2. An Indiana Case: Funk v. Beverly, 112 Ind., 190. In a case recently decided in Indiana a paragraph of the answer intended as a justification of a charge imputing a want of chastity in the plaintiff averred generally that the words spoken and written were true, and then proceeded specifically to afiSrm their truth. So far as concerned the libel- ous words quoted from the complaint, the specific allegations were these: "That he was also approached by W. W., then a single man, and was told by him that he (W.) had been with plaintiff at a camp meeting, and that iFuiA V. Beverly, 113 Ind., 190; 13 N. E. Rep., 578; Kinney v. Mc- Laughlin, 71 Mass., 3. 352 EEPKTITION. while there he had taken her into a tent by themselves and had laid in there ■with her ; and said W. gave the defendant to believe that he had intercourse with her at said camp meeting; and when the defendant asked him if it was true that he had intercourse with her, he said he had." In the con- cluding part of the answer it was alleged: "So that all the words charged to have been spoken and published by the defendant of and concerning the plaintiff were and are true in the sense in which it is alleged they were spoken." On appeal it was held that the theory of the answer that the de- fendant is justified because he repeated what was told him, and that it was true that he was told what he repeated, is radically unsound in law. The court say: "The fact that the publisher of libelous words avers that he heard them from another, and that it is true that he did hear them, is no justification. To constitute a justification it must be averred that the plaintiff was guilty of the wrong or crime imputed by the libelous or slan- derous words. It is the charge contained in the words that must be justi- fied. It is not enough for the defendant to aver that he heard the words spoken," etc. § 6. Digest of American Cases. — 1. Where a witness testifies in an action of slander that the defendant charged the plaintiff with a certain offense, the defendant cannot be per- mitted to prove by the witness that he (the witness) had before told the de- fendant that the plaintiff was guilty of that offense, Clark v. Munsell, 6 Met. (Mass.), 373. 2. A repetition of oral slander already in circulation, without expressing any disbelief in it, or any purpose of inquiring as to its truth, though writ- ten without design to extend its circulation or credit, or cause the person to whom it is addressed to believe or suspect it to be true, is actionable. Kinney v. McLaughlin, 5 Gray (Mass.), 3. 3. A person who utters a slander is not responsible, either as a distinct cause or in aggravation of damages, for its voluntary and unjustifiable repe- tition, without his authority or request, by others over whom he has no control, and who thereby render themselves liable to the person slandered. Hastings v. Stelson, 136 Mass., 329. i. It is no justification that the defendant at the time he spoke the slan- derous words accompanied them with an explanation that such was the common report, and that he spoke the words as merely giving the report. Wheeler v. Shields, 2 Scam. (111.), 348. 6. In 1818 the case of Dole v. Lyon, 10 Johns. E., 447, came before the supreme court of the state of New York for adjudication. It was an action for a libel published by the defendant, in which he gave the name of the author, viz., one G. D. Young. The plaintiff recovered a verdict, and the defendant asked for a new trial on the ground, among others, that having given the name of the author he was not liable to an action. Chief Justice Kent pronounced the judgment of the court. After adverting to the rule laid down in the Earl of Northampton's Case, 12 Co., 183, and in Davis v. Lewis, 7 T. E., 17, he observed that in neither of those cases was that rule the point in judgment, and proceeded: "It may well be questioned whether this rule, even as to slanderous words, ought not to depend upon the quo animo with which the words with the name of the author are repeated. ILLUSTRATIONS — DIGEST OF ENGLISH CASES. 353 Vrords of slander, with . the name of the author, may be repeated with a malicious intent and with mischievous effect. The public may be igno- rant of the worthlessness of the original author, and may be led to attach credit to his name and slander, when both are mentioned by a person of undoubted reputation. There is, however, a distinction between oral and written or printed slander, which is noticed in all the books; and the latter is deemed much more pernicious, and will not so easily admit of justifica- tion. There is no precedent of such a justification in an action for a libel." He concludes his opinion upon this part of the case in these words : " Indi- vidual character must be protected, .or social happiness and domestic peace are destroyed. It is not sufiicient that the printer by naming the author gives the party grieved an action against him. This reason of the rule is mentioned in Lord Northampton's Case and repeated by Lord Kenyon. But this remedy may afford no consolation and no relief to the injured party. The author may be some vagrant individual, who may easily elude process ; and if found, he may be without property to remunerate in dam- ages. It would be no check on a libelous printer, who can spread the cal- umny with ease and rapidity throughout the communit}'. The calumny of the author would fall harmless to the ground without the aid of the printer. The injury is inflicted by the press, which, like other powerful engines, is mighty for mischief as well as for good. I am satisfied that the proposition contended for on the part of the defendant is as destitute of foundation in law as it is repugnant to principles of public policy." Dole v. Lyon, 10 Johns. (N. Y.), 447. § 7. Digest of English Cases. — 1. Mr. and Mrs. Davies wrote a libelous letter to the directors of the Lon- don Missibnary Society, and sent a copy to the defendant, who published extracts from it in a pamphlet. The defendant stated that the letter was written by Mr. and Mrs. Davies, and at the time he wrote the pamphlet he believed all the statements made in the letter to be true. Held, no justifi- cation for his publishing it. Tidman v. Ainslie, 10 Exch., 63; Mills and wife v. Spencer and wife, Holt, N. P., 533; M'Gregor v. Thwaites, 3 B. & C, 24; 4 D. & R., 695. 2. A rumor was current on the stock exchange that the chairman of the S. E. R'y Co. had failed, and the shares in the company consequently fell ; thereupon the defendant said, "You have heard what has caused the fall — I mean the rumor about the S. Eastern chairman having failed?" Held, that a plea that there was in fact such a rumor was no answer to the action. Watkin v. Hall, L. R., 3 Q. B., 396; 87 L. J., Q. B., 135; 16 W. R., 857; la L. T., 561 ; Richards v. Richards, 2 Moo. & Rob., 557. 3. Woor told Daniels that M'Pherson's horses had been seized from the coach on the road, that he had been arrested, and that the bailiffs were in his house. Daniels went about telling every one, " Woor says that M'Pher- son's horses have been seized from the coach on the road, that ha himself has been arrested, and that the bailiffs are in his house." Held, that Dan- iels was liable to an action by M'Pherson for the slander, although he named Woor at the time as the person from whom he had heard It; that it waa no justification to prove that Woor did In fact say so ; defendant must 23 354 REPETITION. go further and prove that what "WoOr said was true. M'Pherson v. Daniels, 10 B. & C, 263; 5 M. & R., 251. •4. The defendant said to the plaintiff in the presence of others: " Thou art a sheep-stealing rogue, and farmer Parker told me so." Held, that an action lay. It was urged that tlie plaintiff ought not to have judgment, because it was not averred that farmer Parker did not tell the defendant so ; but the court was of opinion that such an averment was unneces- say, it being quite immaterial whether farmer Parker did or did not tell the defendant so. Gardiner v. At water, Say., 265; Lewes v. Walter, 3 Bulstr., 235; pro. Jac, 406, 413; EoUe's Rep., 444; Meggs v. Griffith, Cro. Eliz., 400; Moore, 408; Read's Case, Cro. Eliz., 645. 5. The defendant said to the plaintiff, a tailor, in the presence of others: ' ' I heard you were run away ; " scilicet, from your creditors. HeZd, that an action lay. Davis v. Lewis, 7 T. R. , 17. 6. If at a meeting of a board of guardians charges were made against the plaintiff, this does not justify the owner of a newspaper in publishing them to the world ; it is no justification to plead that such charges were in fact made, and that the alleged libel was an impartial and accurate report of what took place at such meeting. Purcell v. Sowler, 1 C. P. D., 781; 2 C. P. D., 215; 46 L. J., C. P., 308; 25 W. R., 362; 36 L. T., 416; Davison v. Duncan, 7 E. & B., 229; 26 L. J., Q. B., 104; 8 Jur. (N. S.), 613; 5 W. R., 253; 88 L. T. (O. S.), 265; Popham v. Pickburn, 7 H. & N., 891; 81 L. J., Ex., 133; 8 Jur. (N. S.), 179; 10 W. H , 334; 5 L. T., 846. § 8. State of the Law in England. — The text, it is pre- sumed, correctly states the existing law on the point; but it would certainly not have been accepted in England as the law in the last century. The difficulty was presented by a resolu- tion in Lord Northampton's Case in the star chamber, 1613, which appears as follows: '"In a private action for slander of a common person, if J. S. publish that he hath heard J. N. say that J. G. was a traitor or thief, in an action of the case, if the truth be such, he may justify. But if J. S. publish that he hath heard generally without a certain author that J". G. was a traitor or thief, there an action sur le case lieth against J. S. for this, that he hath not given to the party grieved any cause of action against any but against himself who published the words, although that in truth he might hear them; for otherwise this might tend to a great slander of an innocent; for if one who hath IcBsam phantasiam, or who is a drunkard, or of no estimation, speak scandalous words, if it should be lawful for a man of credit to report them generally that he had heard scandalous words, without mentioning of his author, that would give greater color and probability that the words xoED Northampton's case. 355 were true in respect of the credit of the reporter than if the author himself should be mentioned." ^ § 9. Lord Northampton's Case. — The doctrine of Lord Northampton's Case as above laid down has at all times been looked at with disapprobation, and in England has been wholly denied to be law ; and it has been held that it is not an answer to an action for oral slander for a defendant to show that be heard it from another, and named the person at the time, without showing that he, the defendant, believed it to be true, and that he spoke the words ou a justifiable occasion.^ Every publication of slanderous matter \^ prima facie a violation of the right which every individual has to his good name and reputation. The law, upon grounds of public policy and con- venience, permits under certain circumstances the publication of slanderous matter, although it be injurious to another. But such act being prima facie wrongful, it lies upon the person charged with uttering slander, whether he were the first utterer or not, to show that he uttered it on some lawful occasion. So, even if the doctrine be upheld, it will be necessary for the defendant to aver in his plea that he heard the slander — for he must offer himself as a witness' — and that the person from whom he heard it spoke it falsely and maliciously ; for other- wise he does not give the plaintiff any cause of action against the original speaker.* The better and more authoritative American doctrine* is that it will afford no justification in an action for oral slander that the defamatory matter has been previously published by a third person; that the defendant at the time of his publication disclosed the name of that third person and believed all the statements to be true.' lodgers on L. & S., 163: 12 Rep., Larkins v. Tarter, 3 Sneed, 681 134. Stevens v. Hart well, 1 1 Met. , 542, 549 2 M'Pherson V. Daniels, 10 Barn. & Clark v. Munsell, 6 Met., 373, 389 Cress., 263; 5 Mann. & Ry., 251; Inman v. Foster,8 Wend., 602; Mapes Ward V. Weeks, 7 Bing., 215; 4 v. Weeks, 4 Wend., 659; Skinner v. Moore & Payne, 796; 1 Saund., 244&, Grant, 12 Ver., 456; Jones v. Clap- 344c (6th ed.). liam, 5 Blackf., 88; Clarkson v. 3M'Gregor v. Thwaites, 3 Barn. & McCarty, 5 Blackf., 574; Moberly v. Cre-ss.. 24; 4 Dowl. & Ry., 605. Preston, 8 Mo., 462; Haynes v. Le- 4 McPherson v. Daniels, 10 Barn. & land, 29 Me., 233; Ward v. Weeks, 7 Cress., 263; 5 Mann. & Ry., 521; 1 Bing., 211; 4 M. & P., 796; Watkin Saund., 244c (6th ed.). v. Hall, L. R., 3 Q. B., 396; 37 L. J., 5 See 2 Kent, Comm., 20, note; Q. B., 125; 16 W. R„ 857; 18 L. T., 856 EEFETiTIOIf. § 10. The Law in Starkie's Time.— It is difficult to carry the doctrine of exculpation from hearsay further than this: that one who lona fide repeats scandal, which he has heard from the mouth of another, for the purpose of enabling an in- nocent party who has been calumniated to take measures for redressing the grievance, shall not be liable to an action. It is obvious that, if a man malevolently give a wide circula- tion to slander under the mere color and pretense of rendering friendly aid and assistance to the party calumniated, he stands in no situation which entitles him to legal protection; and consequently, as the act is in its own nature injurious, there is nothing to exempt him from the ordinary rule which obliges the propagator of a scandalous report, attended with actual or presumptive damage, to make compensation.' §11. The Distinction between Libel and Slander. — The actual publisher of a libel may be an innocent porter or mes- senger — a mere hand, unconscious of the nature of his act, and for which, therefore, his employers shall be held liable, and not he. Whereas in every case of the republication of a slan- der the publisher acts consoiouslj' and voluntarily ; the repeti- tion is his own act. Therefore, if a person is in any way con- cerned in the making or publishing of a libel, he is liable for all the damage that ensues from its publication. But if one person slander another he is only liable for such damages as result directly from that one utterance of his own lips. If a third person hears him and chooses to repeat the tale, that is his own act, and he alone is answerable should damage ensue. In an action against the first person such special damage would be too remote. For each publication of a slander is a distinct and separate act, and every person repeating it becomes an in- dependent slanderer, and he alone is answerable for the con- sequences of his own unlawful act.^ § 12. The Person Who Repeats the Slander is Liable.— By the law as it stands at present, and the same is the law in 581. And Bee Bennett y. Bennett, 6 Foster, 8 Wend., 603; Heard on L. & C. & P., 588; Jarnigan v. Fleming, S.,§ 148. 43 Miss., 711; Treat v. Browning, 4 1 1 Starkie on Slander, 339; Borth- Conn., 408; Eunkle ■ v. Meyers, 3 wick's Law of Libel, p. '294. Yeates (Penn.), 518 ; Dole v. Lyon, 2 Odgers on L. & S., 167, 10 Johns. (N. Y.), 447; Inraan v. "WHO IS LIABLE — KXCEPTIONS. 357 England, the person who invents a lie and maliciously sets it in "circulation may sometimes escape punishment altogether, while a person who is merely injudicious may be liable to an action through repeating a story which he believed to be true, as he heard it told frequently in good society. For if one per- son originate a slander against another of such a nature that the words are not actionable in themselves, the utterance of them is no ground of action unless special damage follows. " If I myself tell the story to your employer, who thereupon dismisses you, you have an action against me; but if I only tell it to your friends and relations and no pecuniary damage ensues from my own communication of it to any one, then no action lies against me, although the story is sure to get round to your master sooner or later. The unfortunate man whose lips actuallj'' utter the slander to your master is the only per- son that can be made defendant; for it is his publication alone which is actionable as causing special damage." ^ But this ap- parent hardship only arises where the words are not actionable without proof of special damage. Where the words are ac- tionable in themselves the jury find the damages generally, and will judge from the circumstances what the amount will be.^ § 13. Exceptions to the Eule. — Odgers lays down two ex- ceptions to this rule : I. Where, by communicating a slander to A., the defendant puts A. under a moral necessity to repeat it to some other per- son immediately concerned ; here, if the defendant knew the relation in which A. stood to this other person, he will be taken to have contemplated this result when he spoke to A. In fact, here A.'s repetition is a natural and necessary conse- quence of the defendant's communication to A. II. Where there is evidence that the defendant, though he spoke only to A., intended and desired that A. should repeat his words, or expressly requested him to do so; here the de- fendant is liable for all the consequences of A.'s repetition of the slander, for A. thus becomes the agent of the defendant.' iGough V. Goldsmith, 44 Wis., 2 Odgers on L. & S., 167. 263; 28 Amer. Eep., 579; ShurtlefE 3 Odgers on L. & S„ 168. V. Parker, 130 Mass., 293; 39 Amer. Rep., 454. 358 EEPETITION. § 14. Illustrations —Digest of English Cases.— 1. H. told Mr. Watkins that the plaintiff, his wife's dressmaker, was a woman of immoral character. Mr. Watkins naturally informed his wife of this charge, and she ceased to employ the plaintiff. Held, that the plaint- iff's loss of Mrs. Watkins' custom was the natural and necessary conse- quence of the defendant's communication to Mr. Watkins. Derry v. Hand- ley. 16 L. T., 263; Gillett v. BuUivant, 7 L. T. (O. S.), 490; KendUlon v. Maltby, 1 Car. & Marsh., 403. 2. Weeks was speaking to Bryce of the plaintiff and said: "He is a rogue and a swindler; I know enough about him to hang him." Bryce repeated this to Bryer as Weeks' statement. Bryer consequently refused to trust the plaintiff. Held, that the judge was right in nonsuiting the plaintiff ; for the words were not actionable per se, and the damage was too remote. Ward V. Weeks,-? Bing., 211; 4 M. & P., 796. 3. The defendant's wife charged Mrs. Parkins with adultery. She indig- nantly told her husband, hernatural protector ; he was unreasonable enough to insist upon a separation in consequence. Held, that for the separation the defendant was not liable. Parkins et nx. v. Scott et ux., 1 H. & C, 153; 31 L. J., Ex., 331; 8 Jur. (N. S.), 593; 10 W. K., 562; 6 L. T., 394. Sea Dixon V. Smith, 5 H. & N., 450; 29 L. J., Ex., 135. CHAPTER XYIII. PARTIES. § 1. Parties to the Action . 2. Illustrations — Digest of American Cases. 3. Corporations. (1) As Plaintiffs. (2) As Defendants. 4. Illustrations — Digest of American Cases. 5. Thie Doctrine Discussed. 6. Liability to Indictment. 7. Illustrations — Digest of American Cases. 8. Digest of English Cases. 9. Husband and Wife. 10. Slander of the Wife before Marriage. 11. Extent of the Husband's Liability. 13. After Marriage. (1) Words Actionable in Themselves. (3) Words Not Actionable in Themselves. 13. The Rule Stated by Taunton. 14. Defamation by Husband and Wife, lo. The Rule under Statutes. 16. The Husband's Liability at Common Law, 17. Abatement of the Action. 18. Illustrations — Digest of American Cases. 19. Digest of English Cases. 20. Infants. (1) As Plaintiffs. (3) As Defendants. 21. Illustrations — Digest of American Cases. 23. Lunatics. (1) As Plaintiffs. (3) As Defendants, 23, Bankrupts. 34. Partners. 25. Illustrations — Digest of American Cases. 36. Digest of English Cases. 27. Liability for an Act of a Partner or Agent. 38. Illustrations — Digest of American Cases. 29. The English Law. 30. Personal Representatives — Executors and Administrators. 31. Principal and Agent — Master and Servant. 33. Agent's and Servant's Liability. 360 PAETIE8. g 33. Master's and Principal's Liability. 84. Acts of Agents and Servants under Instructions, etc. 85. Eatification of Unauthorized Acts. 36. Illustrations — Digest of American Cases. 37. Digest of English Cases. 38. Criminal Liability. 89. Illustrations — Digest of American Cases. 40. Digest of English Cases. 41. Receivers. 43. Joint Defendants. § 1. Parties to the Action. — The parties to the action for defamation are governed by the same general rule which governs in other actions of tort. "With respect to those who may join or be joined in the same action it is to be observed that, regularly where two or more are jointly entitled or have a joint interest, they may join in the same action. It has al- ways been held that, when words are spoken of two or more persons, they cannot join in an action for the words, because the wrong done to one is no wrong to the other. To this rule there appears to be two exceptions: (1) Defamatory words published of partners in the way of their business; and (2) slander of the title of joint owners of lands.' § 2. Illustrations — Digest of American Cases. — 1. For slanderous vrords spoken at the same time against several parties, a joint action cannot be maintained ; each must seek a separate remedy. Hinkle v. Davenport, 38 Iowa, 355. 2. Several persons injured by the same libel must sue alone. Eobinett v. McDonald, 65 Cal., 611. 3. Courts will not allow twd persons to litigate a suit for libel, the libel consisting in an attack upon the chastity of a third person not a party. Langhead v. Bartholomew, Wright (Ohio), 90. § 3. Corporations.— - (1) As plaintiff s : A corporation may sue for any libel upon it as distinct from a libel upon its individual members. It may also sue for a slander upon it in the way of its business or trade. If, however, the corporation be not engaged in any business, it would probably be necessary to prove special dam- age in any case of slander, and this would be difficult. A corporation " could not sue in respect of an imputation of iGazynski v. Colburn, 11 Cush., v. Somner, SOPemi. St.,159;Foster v. 10; 3 Sa^nd., 116a, 117o, 1176, 6th Lawson, 3 Bing., 453, 455; Forbes v. ed. ; 1 Walford on Parties, 514, 516 ; Johnson, 11 B. Men., 50, 51. Smithv. Cooker, Cro, Car., 513; Bash COKPOEATIONS ILLUSTRATIONS. 30 1 murder, or iacest, or adultery, because it could not commit those crimes. Nor could it sue in respect of a charge of cor- ruption; for a corporation cannot be guilty of corruption, although the individuals composing it may be." ' (2) As defendants: A corporation is liable in damages for the publication of a libel as it is for other torts. To establish its liability the publication must be shown to have been made by its authority, or to have been ratified by it, or to have been made by one of Jts servants or agents in the course of the busi- ness in which he was employed.* A corporation is not, it is submitted, liable for any slander uttered by an officer, even though he honestly believe that he is acting for the benefit of the company and within the scope of his duties, unless it can be proved that the corporation ex- pressly ordered and directed that officer to do the act com- plained of. But it will be liable to an action for a libel published by its servants or agents, whenever such publication comes within the scope of the general duties of such servants or agents, or whenever the corporation has expressly authorized or directed such publication.' § 4. Illustrations — Digest of American Cases. — 1. Incorporated companies, established for the purpose of transacting business, may maintain actions of libel tha same as individuals for words affecting their business or property, if special damages are alleged and proved. Shoe & Leather Bank v. Thompson, 18 Abb. Pr. (N. Y.), 413. 2. An action for libel may be maintained by or against a corporation ag- gregate. Aldrich v. Press Printing Co., 9 Minn., 133; Trenton Ins. Co. v. Perrine, 23 N. J. L. (3 Zab.), 403. 3. An action for libel brought jointly by the members of a hose company 'Aldrich v. Press Printing Co., 9 SQdgers, L. & S., 416; Yarborough Minn., 133; Shoe & Leather Bank v. v. Bank of England, 16 East, 6; R. Thompson, 18 Abb. Pr., 413; Pollock, v. City of London, E., B. & E., 123. C. B., 4H. & N., 90; 4 H. & N., 87; n. ; Latimer v. Western Morning 28 L. J., Ex., 201; 5 Jur. (N. S.), 326; News Co., 25 L. T., 44; Abrath v. 7W. E., 365; 32 L. T. (O. S.), 381; North Eastern R'y Co., 11 App. Cas., Trenton Insurance Co. v. Perrine, 3 353, 254; 55 L. J., Q. B., 460; 55 L. Zab. (N. J.), 403. T., 65, 66; Aldrich v. Press Printing ^Samuels v. Mail Co., 75 N. Y., Co., 9 Minn., 133; Johnson v. St. 604; Fagg v. Boston & L. E. Co. Louis Dispatch Co., 65 Mo., 539; 3 (Mass.), SON. E.Eep., 109; Whitfield Mo. App. E., 565; 37 Amer. Rep., V. Railroad Co., El., Bl. & E)., 115; 293. Railroad Co. v. Quigley, 31 How., 203, i]62 PARTIES. for a newspaper article that members of the company, without specifying individuals, had committed a theft, the members not being partners, nor being so situated that the charge could occasion them pecuniary damages as a company, cannot be maintained. Nor can defendants be put to thoir defense and compelled to disclose to whom the libel referred. Ge'rand v . Beach, 3 E. D. Smith (N. Y.), 337. § 5. The Doctrine Discussed. — The doctrine is now well established that a corporation in its corporate capacity is liablo in a civil action for a libel, and it seems may also be indictcil for the same ofiEense.' "Theoretically a corporation is perhajjs incapable of passion. We say perhaps, because upon an analysis of the construction and practical operation of these bodies the theory becomes invested with some doubt. That they should possess this attribute in law in order to harmonize their obli- gations and liabilities with those of individuals prosecuting the same enterprises there is not only no doubt but an imperative necessity. Corporations have almost entirely supplanted indi vidual action in many branches of industry. If we set out on a journey we find ourselves at once almost exclusively in the hands of corporations, and we remain so until we return. The stages and the rail cars by which we are transpQrted, and the hotels at which we are entertained, and even the news- papers by which we are informed of the events of the day, are, as a general rule, the property of and controlled by cor- porations. Almost every department of human industry is filled by corporations. It is difiScult to see w^hy these bodies should be exempt from the liabilities depending upon an evil intent or a bad passion when an individual committing thu same offense would be held liable. Corporations may be com- posed of one man or several. In everything they do, although expressing themselves through agents and officers, they act with as much deliberation, design and intelligence as an indi- vidual. A corporation is established for the publication of a newspaper. Its members become hostile to a citizen and deter- mine to injure him. They assemble in their corporate capac ity and resolve to publish an infamous libel concerning him. One member writes it, the others approve it. The next morn- ing it is read by thousands; and a citizen who was the day be- fore above suspicion stands before the community branded with crime and infamy. The position that a corporation, 12 Bish. Crim. Law, § 935. LIABILITY TO INDICTMENT — ILLUSTRATIONS. 363 being a purely intellectual and ideal existence, is incapable of malice because malice is an emotion of the heart— a passion — is too refined a fiction for tolerance in the practical affairs of life at the present day. The old doctrine that corporations aggregate could not commit a tort was alwa3^s considered ques- tionable. We believe the law has now been fully established to the contrary.! Corporations have become the great mo- tive power of society, governing and regulating its chief busi- ness aflfairs. And had Sir Edward Coke lived in modern times he would have seen something different in this from the soul- less and unconscious beings of his age. The modern and cor- rect doctrine holds them liable for all torts which work inju- ries to others, whether direct and intentional or arising from their own negligence.^ § 6. Liability to Indictment.— In Tennessee an indictment presented against the jSTashville Banner Publishing Company for publishing an article charging the existence of a •' scoun- drelly ring," a band of conspirators who had defrauded, cheated, swindled, plundered and robbed, with other equally choice and vigorous denunciations, was sustained by the su- preme court ;^ though it has been held in Maine that where a crime or misdemeanor is committed under the color of corpo- rate authority, the individual concerned, and not the corpora- tion, should be indicted.* § 7. Illustrations — Digest of American Cases. — 1 . Where a libelous article, indicating that a neighboi-ing ticket agent is not responsible, is conspicuously posted forty days in the ticket office of a rail- road company whose principal terminus and office are in the same city, and there is evidence that such office is used to publish general information of interest to purchasers of tickets, the jury ma3' tind that the company had knowledge of the character of the notice posted in its ticket office, and that the libel would not have remained so long posted had not the company au- ' Aldrich v. Press Printing Co., 9 'State v. Atchison et al., 3 Lea Minn., 133. (Tenn.), 739; Pharmaceutical Society ^Goodspeed v. East Haddam B'k, v. London and Provincial Supply 22 Conn., 531; Hooker V. New Haven, Association, 5 App. Cas,, 869, b70; etc., Co., U Conn., 146; The N. Y. & 49 L. J,, Q. B., 743; 28 W. R., 960; W. Tel. Co. V. Dryburg, 35 Penn. 43 L. T., b89; 5 Q. B. D., 313; 49 (3 Casey), 303; McLelland v. Cumber- L. J., Q. B., 338; 28 W. R., 698; 43 land B'k, 34 Maine, 566; The Phila- L. T., 569. delphia, etc., R. R. Co. v. Quigley, 31 < State v. Great W., etc., Co., 30 Howard (U. S.), 303. Maine, 41. 364: PAETIES. thorized or ratified it. Fogg v. Boston & L. E. Co. (Mass.), 20 N. E. Eep., 109. 2. An action for libel will lie against a corporation. McDermott v. Eve. Jour. Asso., 43 N. J. L., 488; 39 Am. Eep., 606. But a corporation is not liable for a libel by its agent, not in the course of his duty and not author- ized nor approved by the corporation. Southern Express Co. v. Fitzner, 09 Miss., 581; 42 Am. Eep., 379. 3. A joint-stock association may be sued for a libel. Van Aernam v. McCune, 32 Hun (N. Y.), 316. 4. In an action against a corporation sued with others it was alleged that the corporation combined and confederated with the other defendants to injure the plaintiff by circulating false and slanderous statements to his in- jury, with the view of compelling him to become a subscriber to the publi- cations of the corpoi'atipn defendants, in pursuance of which combination the slanderous words were uttered by the other defendants. It was held upon demurrer that a cause of action was alleged against the corporation. Dodge V. Bradstreet, 59 How. (N. Y.) Pr., 104. § 8. Digest of English Cases. — 1. A joint-stock company, incorporated under the 19 and 20 Vict., ch. 47, may sue in its own corporate name for words imputing to it insolvency, dishonesty and mismanagement of its affair's, and this although the defend- ant be one of its own shareholders. Metropolitan Omnibus Co. v. Hawkins, 4 TI. & N., 87; 28 L. J., Ex., 201; 5 Jur. (N. S.), 226; 7 W. E., 265; 33 L. T. (O. S.), 281. 2. Where, before the 19 and 20 Vict., ch. 47, a joint-stock insurance com- pany, though not incorporated, was authorized by statute to sue in the name of its chairman, it was held that the chairman might bring an action for a libel which attacked the mode in which the company carried on its business. Williams v. Beaumont, tO Bing., 260; 3 M. & Scott, 705. 3. A railway company was held liable for transmitting a telegram to the effect that the plaintiff's bank had stopped payment. Whitfield v. South Eastern Eailway Co., E., B. & E., 115; 27 L. J., Q. B., 229; 4 Jur. (N. S.), 688. § 9. Husband and Wife.— The right of the husband to sue for words defamatory of his wife is somewhat anomalous, for his reputation is in no way assailed; and though he has sus- tained damage, is it not damnum sine injuria? Generally speaking, if words defamatory of one party but not action- able in themselves produce damage only to another, neither party can sue. But the reputation of a husband is so inti- mately connected with that of his wife that he has always been allowed to sue whenever he has received damage, just as though the words had been spoken of himself.' iGazynski et ux. v. Colburn, 11 Cush. (65 Mass.), 10. HUSBAND AND WIFE. 365 This is the law laid dpwn in Siderfin/ in the year 1667: " Nota si parols queux de eux m ne sont Actionable mes sole- ment in respect del collateral dams, sont pie,. (parMs) del feme covert, Le Baron sole port L'action, et si le feme soit joyn ove luy le Judgment serra pur ceo arrest, coment soit apres ver- dict." - In one case,' the wife's name was struck off the record by the judge at the trial, and the husband recovered for the damage to his business caused by words not actionable in them- selves, spoken of his wife; though it is true the court based its judgment on the fact that the wife helped her husband in the shop, and was therefore his servant or assistant as well as his wife.* § 10. Slander of the Wife before Marriage.— The common- law rule applicable to actions of defamation for injuries to the wife committed Jief ore marriage, when the cause of action sur- vives to the wife, requires her to join with her husband in the action, and if she die before judgment the action will abate.' § 11. Extent of the Husband's Liability. — A husband is only liable in civil actions for the acts of his wife. He is not responsible for her acts when they are criminal. And when they are joint defendants in actions for defamation the judg- ment, if rendered for the plaintiff, must be as well against the husband as the wife. The damages must be limited to a com- pensation for the injury sustained. The husband is liable for his wife's act to the same extent as if she alone were answer- able. Vindictive or exemplary damages cannot be given." § 12. After Marriage. — (1) Words actionable in themselves: In like manner the husband and wife must join in the action for slander of the wife in cases where the words are actionable in themselves. And the rule is the same though they are liv- ing apart under a deed of separation.' Where an injury is ' Siderfin, 346. ' 1 Chitty's Pleading, 83 ; Stroop v. ■^ Harwood v. Hard wick et ux. (1668), S wartz, Serg. & R. , 76. 2 Keble, 387; Coleman et ux. v, Har- "Austin et ux. v. Nelson et nx,, 4 court, 1 Levinz, 140; Grove et ux. v. Cush. (5S Mass.), 378; Thorley v. Lord Hart, Sayer, 33; B. N. P., 7. Kerry, 4 Taunt., 355; Whitney v. 'Riding V. Smith, 1 Ex. D., 91; Hitchcock, 4 Denio (N. Y.), 461; 45 L. J., Ex., 281; 24 W. E., 487; 34 Taylor v. Carpenter, 3 W. & M., 123. L. T., 500. ' Saville v. Sweeney, 4 B. & A., 514 ; « Odgers on L. & S., 394. Horton v. Byles, Siderfin, 337 ; Beach V. Ranney, 2 Hill, 309. 366 PASTIES. committed to a wife during -her coverture by defamation she cannot in the absence of statutory enactments sue alone in any case.' (2) Words not actionable in themselves: "Where the words are not actionable, but become so by reason of special dam- ages, the wife cannot join in the action.'' § 13. The Rule Stated by Taunton, J.—" The doctrine with respect to the joinder of the wife with the husband, in an ac- tion^is this: If there be a personal wrong or violence done to the wife, so that an action would survive to her, she ought to be Joined ; and it is not less the action of the wife, because the husband inserts in the declaration a statement of some special damage accruing to himself. But when there is no particular cause of action in the wife, and the right of action would not survive to her, but the gist of the action is th« damage to the husband alone, she ought not to be joined." ' § 14. Defamation of Husband and Wife.— For defamatory words spolfen or written of husband and wife, there must necessarily be two actions, since the wife cannot join in an action for the defamation of her husband : one action by the husband alone for the injury done to him, and one by him and his wife for the injury done to her.* § 15. The Kule under Statutes. — In Ifew York and Penn- sylvania and some other states, a married woman has for many years been enabled by special statute to sue for libel or slander without joining her husband; but even in those states she can- not sue her husband for defaming her.* It seems, however, that in England if a married woman carried on a separate trade or profession, and her husband libeled or slandered her in the way of such trade or profession, she could sue him. Such an action was held by Brett, J., to be " a remedy for the pro- tection and security " of her separate property within the act 11 Chitty'B Pleadings, 73. Cush. (Mass.), 10; Smith v. Hobson, 2 1 Chitty's Pleadings, 73; 1 Sider- Style, 112; Ebersol v. Krug, 8 Bin- fin, 346; 2 Keb., 387; 1 Lev., 140; ney, 555; Hart v. Crow, 7 Blackf. 2 Mod., 185; 1 Salk., 119. (Ind.), 351. 'Saville v. Sweeney, 1 N. & M., spreethy v. Freethy, 42 Barb. (N. 254; 4B, & A.,514; Coleman v. Har- Y.), 641; Tibbs v. Brown, 2 Grant's court, 1 Lev., 140. Cas. (Penn.), 39. *Gazj-nski and wife v. Colburn, 11 husband's LIABIUTr ABATEMENT OF ACTION. 367 of 1870.' But he cannot in any case — not even after they are divorced — sue her for defamatory words published by her during coverture.^ g 16. The Hushand's Xiahility at Common Law.— For all libels published, or slanders uttered by the wife before covert- ure, her husband was at common law liable to the full extent. But in later times his liability is restricted in this respect by statutory enactments in nearly all of the states of the Union. By the Married Woman's Property Act of England (1882), a woman after her marriage continues to be liable in respect to the extent of her separate property for all wrongs committed by her before her marriage, and she may be sued for any lia- bility in damages or otherwise in respect of any such wrong; and all sums recovered against her in respect thereof, or for any costs relating thereto, are paj'able out of her separate prop- erty; and, as between her and her husband, unless there is a contract between them to the contrary, her separate property is deemed to be primarily liable for all such wrpngs, and for all damages or costs recovered in respect thereof. And simi- lar provisions exist in most of the states of the Union. § 17. Abatement of the Action. — If the husband die before judgment the action continues against the widow; if, how- ever, the wife die in the life-time of her husband before judg- ment, the action abates, whether it was for a post-nuptial or un ante-nuptial tort,' unless he himself joined in or authorized it. If they be divorced the wife must be sued alone; the hus- band is released from all liability, even though the words complained of were published before the divorce.* So in Eng. land, if the wife has before action obtained a judicial separa- tion or a protection order still in force. But if the husband and wife voluntarily live apart under a separation deed, the common-law rule prevails: the husband is liable for her mis- conduct, and may be joined as a defendant.' 1 Summers v. City Bank, L. R., 9 ^Capel v. Powell and another, 11 C. P., 580; 43 L. J., C. P., 261. 0. B. (N. S.), 743; 34 L. J., C. P., 161 ; 2 Phillips V. Barnet, 1 Q. B. D., 436; 10 Jur. (N. S.), 1355; 13 W. E., 159; 45 L. J.,.Q. B., 277; 34 W. R., 345; 11 L. T., 431. 34 L. T., 177. * Head v. Briscoe et ux., 5 C. & P., 3 Bell V. Stocker, 10 Q. B. D., 129; 485; 3 L. J., C. P., 101, 52L. J.,Q. B„49; 47 L, T„ 624. 368 PAETIES. A married woman will be held criminally liable for a libel she has published.^ Her coverture will, it seems, be no defense to an indictment for a misdemeanor.^ § 18. Illustrations — Digest of American Cases.— 1. Where a married woman was living apart from her husband under articles of separation, wherein her husband had covenanted that she might use his name in suing for any injury to her person or character, and the wife brought an action for slander in the joint names of her husband and herself, and the defendant induced the husband to execute a deed releasing the cause of action, and pleaded the release in bar of the wife's action, the court was compelled to hold this deed a good answer to the action. Beach et ux. V. Beach, 3 Hill (N. Y.), 260. 3. A husband cannot maintain an action for the loss of bis wife's services caused by illness or mutual depression resulting from defamatory words, not actionable in themselves, being spoken of her by the defendant, for the wife, if sole, could have maintained no action. " The facility with which a right to damages could be established by pretended illness, where none exists, constitutes a serious objection to such an action." Wilson v. Goit, 17 N. Y., 445. 3. A wife may maintain an action in Maryland for slanderous words im • puting a crime committed by her jointly with her and her husband ; nor is it any defense to such action that no crime was charged against her, inas- much as the law would presume she was acting under coercion. Nolan v. Trober, 49 Md., 460. § 19. Digest of Englisli Cases.— 1. Words directly defamatory of the wife may also be defamatory of the husband, who may therefore sue alone. Thus, where defendant said to plaintiff's wife: "You are a nuisance to live beside of. You are a bawd, and your house is no better than a bawdy-house," it was held unnecessary to make the wife a party to the action, although the husband proved no special damage. For had the charge been true the plaintiff might have been indicted as well as his wife. Huckle v. Reynolds, 7 C. B. (N. S.), 114. 2. Where the defendant said to the plaintiff, an innkeeper: "Thy house is infected with the pox and thy wife was laid of the pox," it was held that the husband could sue ; for even if small-pox was only meant the words were still actionable, " for it is a discredit to the plaintiff, and guests would not resort hither.". Damages £50. Levet's Case, Cro. Eliz., 389. 3. "If an innkeeper's wife be called 'a cheat,' and the house lose the trade, the husband has an injury by the words spoken of his wife." Per . Wythens, J., in Baldwin v. Flower, 3 Mod., 130; Grove et ux. v. Hart, B. N. P., 7; Sayer, 38. 4. Where the libel imputed that the plaintiff, a married man, kept a gaming-house, and that his wife was a woman of notoriously bad character, and the wife fell ill and died in consequence, evidence of such damage was iR. V. Carlile, 3 B. & Aid., 167. Cruse and wife, 8 Moo. 0. C, 53; 8 2R. V. Ingram, 1 Salk., 384; R. v. C. P., 541. INFANTS. 369 excluded in an action brought by the surviving husband. Guy v, Gregory, 9 0. & P., 584. 5. Mrs. Harwood slandered Mrs. White ; wherefore White and wife sued Harwood and wife. Pending action Harwood died, and his widow remar- ried. The court was very much puzzled, and gave no judgment, appar- ently, though inclining to think that the writ abated. [I think it would now depend on whether the widow had any property at the date of her second marriage: if so, the second husband could be added as a co-defend- ant, or the action might proceed against her alone; if not, it would cer- tainly be but little use continuing it] White et ux. v. Harwood et ux,, Style, 138; Vin. Abr., "Baron and Feme," A., a.; Odgers on L. & S., 405. 6. Mrs. Ciayworth slandered plaintiff, who recovered 40s. damages and costs against her and her husband, and took her in execution under a ca. sa. The court refused to discharge her out of the custody of the sheriflf without the clearest proof that she had no separate property. Ferguson v. Clay- worth and wife, 6 Q. B., 269: 13 L. J., Q. B., 339; 8 Jur., 709; 3 D. & L., 165. But now see Draycott v. Harrison, 17 Q. B. D., 147; 84 W. R., 546. 7. Plaintiff sued Orchard and his wife for slanderous words. The jury found that Orchard had spoken the words, but not Mrs. Orchard. Judg- ment against' the husband. It was moved in arrest of judgment that the speaking of the words could not be a joint act, and that if the husband alone uttered them the wife ought never to have been made a party to the action. But it was held that this defect was cured by the verdict, and that the plaintiff was entitled to retain his judgment. Burcher v. Orchard et ux., Style, 349. But see S within et ux. v. Vincent et ux., 3 Wils., 237. § 20. Infants. — The fact that an infant has been defamed ■gives his parents no right of action, unless in some very excep- tional case it deprives the parent of services vrhich the infant formerly rendered, in which case an action on the case may lie for the special damage thus wrongfully inflicted, provided it be the natural and probable consequence of the defendant's words. An infant will be held to be the servant of his par- ents, provided he is old enough to be capable of rendering them any act of service.^ (1) As plaintiffs: An infant may bring an action of defa- mation. He may trade, and may therefore have an action of slander for words which would damage him in his trade.^ An infant sues by his next friend, who is personally liable for the costs of the suit; ' but security for costs will not as a rule be 1 Odgers on L. &8., 406; Dixon v. ^Wild v. Tomkinson, 5 L. J., K. BeU, 5 Maule & S., 198; Hall v. Hoi- B., 365. lander, 4B. &C.,660;7D. &E.,133; ^Stewart v. Howe, 17 III., 71; Evans V. Walton, L. E., 2 0. P., 615; Odgers on L. & S., 405; Caley v. 15 W. E., 1063. Caley, 35 W. R., 538. 370 PARTIES. required from him, lest the infant should lose his rights alto- gether. (2) As defendants: The infancy of the defendant is no de- fense to an action of libel or slander. In England a lad of fifteen was imprisoned for default in payment of damages and costs for a slander.' An infant will also be cruninally liable for any libel if he be above the age of fourteen. If he be under fourteen he might possibly be found guilty of a libel if evidence were given of a disposition prematurely wicked. But more than the proof of malice ordinarily given in cases of privilege would probably be required.^ § 21. Illustrations — Digest of American Cases. — 1. Sophia Howe, an infant under ten years of age, commenced an action by her next friend against Amos Stewart for slanderous words charging her with theft. On the trial the jury found for the plaintiff. Motions for a new trial and in arrest of judgment were made and overruled. The ground of the defense was that, as an infant under the age of ten years by statute of Illinois could not be found guilty of any criminal offense, Imputing a crime to such an one could not be actionable. Tn affirming the judgment in the supreme court, Soates, C. J., said: " I am not called upon to say how young a plaintiff m&y sustain this action for words imput- ing crime, but as called upon in this case I am compelled to say that this plaintiff shall not shield himself from accountability by alleging the defend- ant's infancy, which should have afforded a conclusive reason for a chari- table forbearance of his malice, and shall not constitute a shield and ground of defense to him." Stewart v. Howe, 17 111., 71. § 22. Lunatics. — (1) As plaintiffs: It is almost inconceivable that an ad- mitted lunatic should bring an action of libel or slander. But should such an event happen he ought to sue by his next friend, if he has not yet been found of unsound mind by in- quisition; if he has been, then by his conservator or guardian.' (2) As defendants: Lunacy, in England, is said to be no defense to an action for defamation.* In America, however, the rule is otherwise. Insanity at the time of speaking the words is considered a defense, "where the derangement is 1 Defries v. Davis, 7 C. & P., 112; 3 Odgers on L. & S., 406. 3 Dowl., 639. iMordaunt v. Mordaunt, 89 L. J. 2 Stewart v. Howe, 17 111., 71; Prob. & Matr., 59. Chambers v. White, 3 Jones, 383; OdgeraonL. &S., 406. BANKRUPTS — PARTNERS. 371 great and notorious, so that the speaking the words could pro- duce no effect on the hearers," because then " it is manifest no damage would be incurred." But where the degree of insanity is slight, or not uniform, there evidence of it is only admissible in mitigation of damages.^ A lunatic cannot be held criminally liable for a libel pub- lished under the influence of mental derangement; but the onus of proving this defense lies on the accused.^ § 23. Bankrupts.— An undischarged bankrupt may sue for and recover damages for a personal. wrong, such as libel or slander; nor will such damages pass to his trustee under the English baniiruptcy act.' The right of action is not assign- able, and the trustee cannot interfere.* But a judgment re- covered for a personal wrong is assignable.' §24. Partners. — Two or more partners may join in an action of slander for words spoken of them in the wa.y of their -trade, whereb}' they have sustained special damage. They may sue jointly for slander of them in respect of their trade without showing the proportion of their respective shares. But damages cannot be given in such an action for any injury to the private feelings of the plaintiffs, but only for such injury as they may have sustained in their joint trade or business." And where words imputing insolvency in trade are spoken of one of the partners of a firm, such individual partner may. maintain an action of slander and recover damages for the in- juries done to him; and it is not necessarily to be considered as an injury to the partnership, for which a joint action, only can be maintained.' iDickinBon v. Barber, 9 Tyng Benson v. Flower, Sir Wm. Jones, (Mass.), 218; Yeates et ux. v. Reed et 215; Odgers on L. & S., 407; Hylop Tix., 4 Blackford (Ind.), 463; Horner v. Randall, 11 How., 97. V. Marshall's Administratrix, 5 Mun- ^ Zogbaum v. Parker, 66 Barb. (N. ford (Va.), 466 ; Gates v. Meredith, 7 Y.), 34. Ind. 440. ^Ludwig v. Cramer, 63 Wis., 193; 2 Odgers on L. & S., 406. 10 N. W. Rep,, 81; Cook v. Batch- 'DowUng V. Brown, 4 Ir. C. L. R., ellor, 3 Bos. & Pull., 150; Foster v. 265; Ex parte Vine, In re Wilson, 8 Lawson, 3 Bing., 452; 11 Moore, 860. Ch. D., 364; 26 W. R., 582; 38 L. T., ^Harrison v. Bevington, 8 C. «fc P., 730. 708. * Brooks V. Hanford, 15 Abb., 342; 372 PARTIES. § 25. Illustrations — Digest of American Cases. — 1. "For a publication, libelous in itself, concerning a partnership, one partner way sue alone for the injury sustained by him. Rosenwald v. Hammastein, 13 Daly (N. Y.), 377. 2. Where a printing press and newspaper establishment were assigned to a person merely as security for a debt, and the press remained in the sole possession and management of the assignor, the ownership of the assignee is not such as to render him liable to an action, as proprietor, for a libelous publication. Andres v. Wills, 7 Johns. (N. Y.), 260. 3. A partner is not necessarily liable for a libel published by his copart- ner. Woodling V. Knickerbocker, 31 Minn., 268. 4. All the copartners owning a newspaper are responsible for the express malice of one of them in publishing a libel, although a statute exacts proof of actual malice. Lathrop v. Adams, 133 Mass., 471 ; 43 Am. Rep., 538. 5. Where a business firm is injured by the speaking of slanderous words against one of its members, if such member is the proper party plaintiff in a suit for damages, the words being actionable only by reason of the influ- ence upon the business of the firm, it is necessary that the plaintiff's inter- est should be specially averred, and special damages must be alleged. Havemeyer v. Fuller, 60 How. (N. Y.) Pr., 316. § 26. Digest of English Cases.— 1. Where two persons, woolstaplers and copartners, who had bought a quantity of wool to be weighed by themselves and paid for according to weight, brought an action against another for saying of them, in the way of their trade, that when the wool was weigihed by the plaintiffs there was a pound weight concealed under the brass weight, stating special damage by reason of speaking the words, it was held on a general demurrer that they might well join in the action, because the damages were joint and en- tire to plaintiffs as copartners, wlio were jointly interested, and a multi- plicity of actions would be created if the contrary doctrine were to be maintained. Though there was special damage laid in the declaration in this case, yet Mr. Sergeant Williams said: "If words are actionable only because they were spoken of persons in the way of their trade, I conceive that two or more partners may join in an action for the words though they had sustained no special. damage thereby." 3 Saunders, 117a, 1176 (6th ed.); Foster v. Lawson, 8 Bing., 453. a. The declaration stated that the plaintiff was a banker in partnership with A. and B., and that the defendant spoke words of the plaintiff, and of him in his said trade, imputing to him insolvency; by means whereof divers persons believed him tb be indigent and refused to deal with him in his said trade, and one C. withdrew his account from the bank of the plaint- iff and his partners. The defendant pleaded in abatement that the plaintiff carried on the business jointly and undividedly with A. and B., and not otherwise, and that all the damage mentioned in the declaration accrued to A. and B. jointly with the plaintiff, and not to him alone ; and that at the time of the commencement of the suit A. and B. were living. The plea was held bad in itself as a plea in abatement, and good for no purpose. Robin- son V. Marchant, 7 Q. B., 918. t3 LIABILITY FOE ACT OF PABTNEE OE AGENT. 373 3. If one partner be libeled in his private capacity he cannot recover for any special damage which has resulted to the business of the firm. All the partners should sue for that jointly. They may nosv do so in the same ac- tion. Solomons V. Medex, 1 Stark., 191; Robinson v. Marchant, 7 Q. B., 918; 15 L. J.-, Q. B., 134; 10 Jur., 156; Cook v. Batchellor, 3 Bos. & Pul., 150; Maitland v. Goldney, 3 East, 436. 4. Similarly, if the firm be libeled as a body, they cannot jointly re- cover for any private injury to a single partner ; though that partner may now recover his individual damages in the same action. Hay thorn v. Law- eon, 3 C. & P., 196; Le Fanu v. Malcolmson, 1 H. L. C, 637; 13 L. T. (O. S.), 61 ; 8 Ii-. L. Pv., 418. 5. But if Insolvency be imputed to one member of a firm, this is a re- flection on the credit of the firm as well ; therefore either he, or the firm, or both, may sue, each for their own damages. Harrison v. Bevington, 8 C. & P., 708; Foster v. Lawson, 3 Bing., 453; 11 Moore, 360. § 27. Liability for Act of Partner or Agent. — If a part- ner in conducting the business of a firm causes a libel to be published, the firm will be liable as well as the individual pai't- ner. So if any agent or servant of the firm defames any one by the express direction of the firm or in accordance with the general orders given by the firm for the conduct of their busi- ness. To hold either of the members of a partnership it is not necessary that the partner should publish the libel himself. It is sufficient if he authorized, incited or encouraged any other person to do it; or if, having authority to forbid it, he permit- ted it, the act was his.' § 28. Illustrations — American Cases. — 1. In a Minnesota Case (Woodling v. Knickerbocker, 31 Minn., 368; 17 N. W. Eep., 387) the libels alleged in the complaint were placards placed upon a table belonging to and standing upon the sidewalk in front of the place of business of the "Knickerbocker Furniture Company," a firm en-, gaged in dealing at wholesale and retail in furniture and draperies in Min- neapolis. The defendants are alleged to be partners in that firm, and the complaint charges that they, and each of them, put the placards on the table. The first placard read, "Taken back from Dr. Woodling, who could not pay for it; to be sold at a bargain." This was removed by plaintiif, and soon after another was placed on the table, which read, "This is taken from Dr. Woodling, as he would not pay for it ; for sale at a bargain ; " and near this at the same time was placed another, " Moral: Beware of dead- beats." It appeared on the trial that the defendants Layman and S. E. Knickerbocker were members of the firm. How George Knickerbocker was connected with it did not appear; and it did not appear that S. E. Knicker- bocker had anything to do with or knew anything of the placing of the placards on the table. ' The court held that she cannot be held liable unless by reason of its having been done by her partner or by someone in theserv- 1 WoodUng v, Knickerbocker, 31 Minn., 3C8; 17 N. W. Rep., 387. 37i PARTIES. ice of the firm. One can be held liable for a libel piiblished by another only because he has authorized him to make the publication. There is nothing in the nature of the business of the firm — that of dealing in furni- ture and draperies — from which authority to one partner or to a servant to gratuitously publish a libel can be implied. The case is different from that of a partnership whose business is publishing or selling either books or newspapers, where each partner is supposed to have authority to publish or sell, and to determine what shall be published or sold ; and also from that of the necessary correspondence of a firm, where each partner is presumed authorized to conduct it and to determine on its substance and terms. As to George Knickerbocker and Layman there was evidence to go to the jury — pretty strong evidence — that George Knickerbocker either placed or incited others to place all the placards on the table ; and from the fact that Layman was present and saw certainly the last two placards, knew they were put on his property by one of his servants and acquiesced in George Knickerbocker's refusal to I'emove them at plaintiff's request, the jury might well conclude that all were placed on the table either by his express authority or his assent. To hold either of the defendants it was not neces- sary that the placai-ds should have been placed on the table with his own hand. If he authorized, incited or encouraged any other person to do it, or if, having authority to forbid it, he permitted it, or, having authority to remove them, he allowed them to remain, the act was his. § 29. The Law of England. — la England partners could always Jointly sue for a libel defamatory of the firm.' But in such an action no damages could formerly have been given for any private injury thereby caused to any individual partner; nor for the rnjury to the feelings of each member of the firm. . Only joint damages could be recovered in the joint action; for the basis of such action was the injury to their joint trade.^ But under recent enactments claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant. So in England it is no longer necessary to bring two actions for the same words; each indi- vidual partner is named on the writ, and he can recover sep- arate damages for any special injury done to himself, the firm at the same time recovering their joint damages.' If, how- ever, one partner be defamed as to his private life, the conduct of the firm not being attacked directly or indirectly, nor any special damage resulting to thent from defendant's words, then the individual partner should sue alone.* iWard V. Smith, 6 Bing., 749; 4 196; Robinson v. Marchant, 7 Q. B., C. & P., 303; LeFanu v. Macolmson, 918; 15 L. J., Q. B., 13*. 1 H. L. C, 637. 3 Booth v. Briscoe, 3 Q. B. D., 496; 2 Hay thorn v. Lawson, 3 C. & P., 25 W. R., 838. «OdgersonL. & 8., 418. PEESONAL EEPEESENTATIVES, ETC. 375 § 30. Personal Representatives — Executors and Admin- istrators. — At common law actions for slander and libel abate upon the death of either party ,i but by statute in some of the states the law has been somewhat modified. If after a judgment has been entered the plaintiff dies pending an appeal his representatives ma^' be substituted without an abatement of the action. The maxim actio personalis cum persona mo- ritur applies to all actions of libel and slander. If, therefore, either party die before verdict the action is at an end. But if interlocutory judgment be signed and a writ of inquiry issue, and then plaintiff die, final judgment cannot be entered.^ If, however, final judgment has once been entered in the plaint- iff's favor and then plaintiff dies and defendant appeals, the action will not abate, but the executors or administrators of the late plaintiff may appear as respondents to the appeal.' So if either party die after final judgment execution can issue. An action in the nature of slander of title survives to the plaintiff's executor to the extent that damage can be shown to the plaintiff's estate.* § 31. Principal and Agent — Master and Servant.— If a servant or apprentice be libeled or slandered he can of course sue in his own right. In some cases his master also can sue in an action on the case, if the words have directly caused him pecuniarv loss; as, if the servant has been arrested and the master deprived of his services in consequence of the defend- ant's words; or if in any other way the natural consequence of the words spoken has been to injure the master in the way of his trade. And this appears to be the law whether the words be actionable in themselves or not.^ § 32. Agents' and Servants' Liability. — If any agent or servant be in any way concerned in writing, printing, publish- ing or selling a libel, he will be both civilly and criminally iStr^thers v. Peacock, 11 Phil., Times L. R., 546; Weekly Notes, 287. 1887, p. 80; 51 J. P., 377. 2 8 and 9 Will. III., cli. 11, sec. 6; 5 Riding v. Smith, 1 Ex. D., 91; 45 Ireland v. Cbampneys, 4 Taunt., 884. L. J., Ex., 281 ; 34 W. R,, 487; 34 L. 3Twycross v. Grant (C. A.), 4 C. P. T., 500; Garrett v. Taylor, Cro. Jau., D.,40; 47L. J., Q. B.,676; 27 W. R., 567; 1 Roll. Abr., 108; Springhead 87; 39 L. T., 618; Sandford v. Ben- Spin. Co. v. Riley, L. R., 6Eq., 551; nett, 24 N. Y., 30. 37 L. J., Ch., 889; 16 W. R., 1138; 19 ■* Hatchard v. Mege and others, 3 L. T. , 64. 370 PAETIE8. liable. If a clerk or servant copy a libel, and deliver the copy he has made to a third person, he will be liable as a publisher. That his master or employer ordered him to do so will be no defense.' " For the warrant of no man, not even of the king himself, can excuse the doing of an illegal act; for although the commanders are trespassers, so are also the persons who did the fact." - The agent or servant cannot recover any con- tribution from his employer;' and any previous promise to in- demnify him against the consequences of the publication, or ?igainst the costs of an action brought for the libel, will be void.* It will be .a defense if the agent or servant never read the paper he delivered, and was wholly unaware that it was a libel; as where a postman or messenger carries a sealed letter, of the contents of which he is ignorant. So, too, a servant or agent will be liable for any slander ut- tered on his master's behalf and by his master's orders ; but here he cannot set up as a defense that he did not know his master's orders were illegal, for he must be conscious of what he himself is saying. § 33. Masters' and Principals' Liability. — A master or prin- cipal will be liable to an action if false defamatory words be spoken or published b}' his servant or agent with his authority and consent. The mere fact that the actual publisher was the servant or agent of the defendant is not alone sufficient; for authority to commit an unlawful act will not in general be presumed. It must be further proved that the servant or agent had instructions from the defendant to speak or publish the words complained of. The liability of the principal grows out of the ruling princi- ple in the law of agency tha't the principal is responsible for the acts of his agent within the general scope of the authority which he has conferred upon the agent.* The maxim is respond- eat superior. 1 Maloney v. Baitley, 3 Camp., 310. 10 Brad. aU.), 577 ; Sliackell v. Rosier, 2 Sands v. Child, 3 Lev., 352. 3 Bing. N. C, 634; 3 Sc, 59. 3 Merry weather v. Nixan, 3 Stn. L. s Blackwell v. Wiswall, 14 How. Cases (8th ed.), 546; 8 T. E., 186. Pr., 258; Odgers on L. & S., 409; « People T. Clay, 86 111., 147 ; Odgers Folkard's Starkie, 436, 437. on L. & S.. 410; Clifford v. Cochrane, ACTS OF AGENTS OE SERVANTS — EATIFICATION. 3T7 § 34. Acts of Agents under Instructions, etc. — Where the instructions are express there can be no difficulty. But the inclination of courts has of late years been not to press the doctrine of implied authority so far as was done in older cases. However, it is clear law that the proprietor of a newspaper is both civilly and criminally responsible for whatever appears in its columns, although the publication may have been made with- out his knowledge and in his absence. For he must be held to have instructed his servants to print and publish whatever the editor might send them for that purpose. The proprietor trusts to the discretion of the editor to exclude all that is libel- ous ; if the editor fails in this duty, still the paper and all its contents will be printed and published by the proprietor's serv- ants, by virtue of his general orders. So if a master-printer has contracted to print a monthly magazine, he will be liable for any libel that majj^ appear in any number printed at his office. Every bookseller must be taken to have told his shop- men to sell whatever books or pamphlets are in his shop for sale; if any one contain libelous matter the bookseller is prima facie at least liable for its publication by his servant by rea- son of such general instructions. But where a master's orders are such that they can be obeyed without any illegality, he is not liable because his servant chooses to carry them out ille- gally and tortiously, even although the servant honestly believes that he is best serving his master's interests by thus executing his business.' § 35. Ratification of Unauthorized Acts. — But although the master has not authorized the act of the servant, still if it was done for his benefit and on his behalf he may subsequently ratify it. Omnis ratihabitio priori mandato wquiparatur. But " in order that there may be a valid ratification there must be both a knowledge of the fact to be ratified and an intention to ratify it." ^ The master must do something more than merely stand by and let the servant act. Non-intervention is not rat- ification.' 1 Andres v. Wells, 7 Johns. (N. Y.), ' Moon v. Towers, 8 C. B. (N. S.), 260; OdgersonL. & S., 412. 611; Weston v. Beeman, 27 L. J., 2 Keating, J., in Edwards v. Lon- Ex., 57. don & N. W. E'y Co., L. R., 5 C. P., 44d. 378 PAETIE8. § 36. Illnstrations — Digest of American Cases.— 1. The proprietor of a newspaper on going away for a holiday expressly instructed his acting editor to publish nothing exceptionable, personal or abusive, and warned him especially to scan very particularly any article brought in by B., who was known to be a "smart" writer. The editor per- mitted an article of B.'s to appear which contained libelous matter. The proprietor was held liable, though the publication was made in his-absence and without his knowledge. Dunn v. Hall, 1 Carter (Ind.), 345; 1 Smith, 288. 2. Where a discourse was delivered pending the canvass for the election of a member of congress, upon the opinion and decision of a commissioner of the circuit court of the United States remanding a fugitive from service under the fugitive slave law, and upon the expediency and constitutionality of the law, containing passages accusing the commissioner of "legal Jesu- itism," of prejudice and want of feeling, of a "partisan and ignoble act," and comparing him to Pilate and Judas, it was held that the want of act- ual intent to vilify is no excuse for a libel, and that the publication is not excused by the publisher's ignorance that it contains libelous matter. Curtis V. Mussey, 6 Gray (Mass.), 361. 3. A libelous article stating that a neighboring ticket agent was not re- sponsible was conspicuously kept posted in the office of the Boston & L. Railroad Company, such office being used to publish general information of interest to persons purchasing tickets. On the trial of an action against the railroad company for libel it was held that the facts authorized the jury in finding that the company had knowledge of the character of the notice so posted in its office, and that it would not have remained so long posted if the company had not authorized or ratified it. Fogg v. Boston & L. R. Co., 20 N. E. Rep., 109. i. The defendant voluntarily made a statement of facts to a reporter of a newspaper, and the reporter, after writing part of an article embodying the facts thus given him, communicated them to the editor of the Streator " Pioneer," who thereupon wrote and 'published the article, which proved to be libelous. The article, when it was in type, was read to the defendant from the proof-sheets. He said it was a little rough, but it was true and let it go, and it was so published. The defendant was afterward indicted, convicted and fined for the publication. Upon appeal it was held that he could not escape conviction on the ground that he did not write and publish the article himself. Clay v. The People, 86 111., 147. 5. A client cannot be held in damages for slanderous words uttered by his attorney at law ; as, for instance, an insurance company, in an answer in a suit against it, charging the plaintiff therein with arson. Bayly v. Fourchy, 33 La. Ann., 186. § 37. Digest of English Cases.— 1. Mrs. Riding assisted her husband in his shop. Words not actionable per se were spoken of her which by natural consequence injured the trade of the shop. Mrs. Riding sued the speaker, joining her husband for con- formity. At the trial it became clear that the only special damage was to the husband. Thereupon the plaintiff's counsel applied to have the wife's name struck off the record. The learned judge made the requii-ed amend- ILLUSTRATIONS — DIGEST OF E>JGLISH CASES. 379 ment, and the action then became an action by a master for injury to his business caused by slander of his assistant in that business. Held, that the action lay. Biding v. Smith, 1 Ex. D., 91; 45 L. J., Ex., 281; 24 W. E., 487: 34 L. T., 500. 2. If defendant threaten plaintiff's workmen, so that they dare not go on with their work, and the plaintiff in consequence loses the profit he would have made on the sale of his goods, an action lies. Garret v. Taylor, Cio. Jac, 567; 1 Roll. Abr., 108: Springhead Spinning Co. v. Riley, L. R., 6 Eq.- 531; 37 L. J., Ch. 889; 16 W. R., U38; 19 U T., 64. .'«. Kelly, C. B: "Supposing the statement made not to be slander, but something else calculated to injure the shopkeeper in the way of his trade — a?, for instance, a statement that one of his shopmen was suffering from an infectious disease, such as scarlet fever — this would operate to prevent peo- lile coming to the shop ; and whether it be slander or some other statement which has the effect I have mentioned, an action can, in my opinion, be maintained on the ground that it is a statement made to the public which would have the effect of preventing their resorting to the shop and buying goods of the owner." Riding v. Smith, 1 Ex. D., 94. 4. A porter who, in the course of business, delivers parcels containing libelous handbills, is not liable in an action for libel, if shown to be igno- raat of the contents of the parcel ; for he is but doing his duty in the ordinary way. Day v. Bream, 2 M. & Rob., 54. 5. A compositor will be criminally libel for setting up the type of a libel. So will the man whose business it is merely to clap down the press. R. v. iCnell. 1 Barnard., §05; R. v. Clerk, 1 Barnard., 304. 6. The defendant's daughter, a minor, was authorized to make out his bills and write his general business letters ; she chose to insert libelous mat- ter in one letter. The father was held not liable for the wrongful act of his daughter in the absence of any direct instructions. Harding v. Greening, 8 Taunt., 43; 1 Moore, 477; Holt, N. P., 531. See Moon v. Towers, 8 0. B. (N. S.), 611. 7. The defendant Moyes regularly printed "Eraser's Magazine," but had nothing to do with preparing the illustrations. One number contained a libelous lithographic print. The defendant, the printer, was held liable for this print, though he had never seen it, because it was referred to in a part of the accompanying letter-press which had been printed by his servants. A rule on this point was refused. The editor was of course liable also. Watts V. Eraser and Moyes, 7 C. & P., 369; 6 A. & E., 333; 1 Jur., 671; 1 M. & Rob., 449; 3 N. & P., 157; W., W. & D., 451. 8. The proprietor of a newspaper will be held liable for an accidental slip made by his printer's man in setting up the type. Shepheard v. Whitaker, L. E., 10 C. P., 503; 33 L. T., 403. 9. And for a libelous advertisement inserted by the editor without his knowledge. Harrison v. Pearce, 1 F. & F., 567; 33 L. T. (O. S.), 398. 10. At a meeting of a board of guardians, at which reporters were pres- ent, the chairman made a statement reflecting on the plaintiff, and added : " I am glad gentlemen of the press are in the room, and I hope they will take notice of it ; publicity should be given to the matter." A report ac- cordingly appeared in Jwo local papers. Held, by the majority of- the ex- 3 so PAETIES. chequer chamber, that there was some evidence to go to the jury that the defendant had expressly authorized the publication of the alleged libel in the newspapers. Parkes v. Prescott, L. E., 4 Ex., 169; 86 L. J., Ex., 105: 17 W. E., 773; 30 L. T., 537; Tarjiley v. Blabey, 3 Bing. N. C, 487; 3 Scott, 613; 1 Hodges, 414; 7 C. & P., 395. §38. Criminal Lialbility.— A master or principal is crimi- nally liable for any libel publislied by his servant or agent with his authority or consent. At common law he was criminally liable for such libel, even'although he had no knowledge of it, if his servant was acting in pursuance of general orders. When- ever an employer was civilly liable at common law for a libel published by his servants he was also criminally liable. But in England this liability has been changed. Under Lord Camp- bell's act it is competent for the defendant to prove that the publication was made without his authority, consent or knowl- edge, and that it did not arise from want of due care or cau- tion on his part. Hence, in England, the proprietor of a news paper is no longer criminally liable' for a libel which has appeared in it without his knowledge or consent, merely be- cause he has giv^en the editor a general authority'' to insert what he thinks fit therein.' § 39. Illustrations — Digest of American Cases. — 1. A person who makes a defamatory statement to the agent of a news- paper for publication is liable both civilly and criminally, and his liability is shared by the agent and all others who aid in publishing it. One Cas- Bius M. Clay gave a report to a reporter of the Streator " Free Press " of what he claimed were the facts of an assault. A report of the matter was written up under the head of "Brutality — Two young women maltreat their mother*. " After the matter was in type it was read to Clay, who said it was " a little rough, but it was true; let it go." He was indicted for a libel, and upon trial was convicted and fined $300. People v. Clay, 86 111. , 147. § 40. Digest of English Cases.— 1. A libel was published in a London newspaper, " The Morning Journal." At the time of publication, Mr. Gutch, one of the proprietors, was away ill in Worcestershire, in no way interfering with the conduct of the paper, which was managed entirely by Alexander. Lord Tenterden directed the jury to find Gutch guilty, on the ground that it was with his capital that the paper was carried on, that he derived profit from its, sale, and that he had selected the editor who had actually inserted the libel. Lord Tenter- den the next day admitted (p. 438) that some possible case might occur in 1 People V. Clay, 86 111., 147; E. v. 18 Cox, C. C, 650; 4 Q. B. D., 42; 48 Holbrook, 3 Q. B. D., 60; 47 L. J., Q. L. J., Q. B., 113; 27 W. E., 313; 39 B., 35; 26 W. E., 144; 37 L. T., 530; L. T., 536; 14 Cox, 0. C, 185. UNDER. LORD OAMPBELL's ACT. 381 which the proprietor of a newspaper might be held not criminally answer- able for a libel which had appeared in it. Gutch was convicted, but subse- quently discharged on his own recognizances. R. v. Gutch, Moo. & Mai., 433; R. V. Walter, 3 Esp., 21. And see Attorney-General v. Siddon, 1 Or. & J., 320. 2. The defendant told the editor of a newspaper several good stories against the Rev. J. K., and asked him to "show Mr. K. up;" and the ed- itor subsequently published the substance of them in the paper, and the de- fendant read it and expressed his approval. This was held a publication by the defendant, although the editor knew of the facts from other quarters as well. R. v. Cooper, 8 Q. B., 538; 15 L. J., Q. B,, 306. 8. The defendant kept a pamphlet-shop; she was sick and upstairs in bed ; a libel was brought into the shop without her knowledge, and subse- quently sold by her servant on her account. She was held criminally liable for the act of her servant, on the ground that " the law presumes that the master is acquainted with what his servant does in the course of his busi- ness." R. V. Dodd, 3 Sess. Gas., 33; Nutt's Case, Fitzg., 47; 1 Barnard., K. B., 306. [But I doubt if later judges would have been quite so strict; the sickness upstairs would surely have been held an excuse, even before the 6 and 7 Vict., ch. 96, sec. 7, became law. Bee R. v. Almon, 5 Burr., 2686.] Odgers on L. & S., 415. Undee Lokd Campbell's Act. 1. The defendants were the proprietors of the Portsmouth "Times and Naval Gazette; " each of them managed a different departntient of the news- paper, but the duty of editing what was called the literary department was left by them entirely to an editor whom they had appointed, named Green. The libel in question was inserted in the paper by Green without the ex- press authority, consent or knowledge of the defendants. At the trial of a criminal information the judge directed a verdict of guilty against the de- fendants. Held, by Cockburn, C. J., and Lush, J., that there must be a new trial; for upon the true construction of 6 and 7 Vict., ch. 96, sec. 7, the libel was published without the defendants' authority, consent or knowl- edge, and it was a question for the jury whether the publication arose from any want of due care and caution on their part. By Mellor. J., dissenting, that the defendants, having for their own benefit employed an editor to manage a particular department of the newspaper, and given him full dis- cretion as to the articles to be inserted in it, must be taken to have con- sented to the publication of the libel by him; tliat 6 and 7 Vict., ch. 96, sec. 7, had no application to the facts proved, and that the case was properly withdrawn from tlie jury. R. v. Holbrook, 3 Q. B. D., 60; 47 L. J., Q. B., 35; 26 W. R., 144; 87 L. T., 530; 13 Cox, C. C, 650. 2. On the new trial Green was called as a witness, and stated that he had general authority to conduct the paper ; that the defendants left it entirely to his discretion to insert what he pleased, and that he had allowed the letter complained of to appear in the paper without the knowledge or ex- press authority of the defendants, one of whom was absent from Ports- mouth at the time. The jury found all the defendants guilty. On a motion 382 PAETIES. for a new trial on the ground that the verdict was against evidence, and of misdirection, held by Cockburn, C. J., and Lush, J. (Mellor, J., still dis- senting), that the general authority given to the editor was not per se evi- dence that the defendants had authorized or consented to the publication of the libel, within the meaning of 6 and 7 Vict., ch. 96, sec. 7, and that as the learned judge at the trial had summed up in terms which might have led the jury to suppose that it was, and the jury had apparently given their verdict on that footing, there must be another new trial. R. v. Holbrook, 4 Q. B. D., 43; 48 L. J., Q. B., 113; 37 W. R., 313; 39 L. T., 536; 14 Cox, C. C, 185. 8. The prosecutor, Mr. John Howard, clerk of the peace for the borough of Portsmouth, died shortly afterwards, so the proceedings dropped, and no third trial ever took place. Odgers on L. & S., 418; R. v. Bradlaugh, 15 Cox, C. C, 217; R. v. Ramsey and Foote, 15 Cox, C. C, 331. §41. Receiyers. — If receivers appointed by the court in an administration suit to carry on a gazette publish a libel therein, they are of course personally liable for damages and costs. , The damages, it would seem, may be paid out of the estate, but not the costs ; those the receivers must pay out of their own funds.^ §42. Joint Defendants. — A joint action cannot be main- tained against two or more persons for slander. Even if hus- band and wife utter similar words simultaneously, there are at common law two separate publications, and an action must be brought against the husband alone for what he said; against both husband and wife for her words.^ But with libel it is different; the publication of a libel might well be the joint act of two or more persons, who might in such a case be sued either jointly or separately at the election of the plaintiff. Thus, if a master and servant jointly published a libel, they might al- ways have been jointly sued in the same action. But if there were two distinct publications of the same libel, one by A. sep- arately, the other by B., two actions must be brought — one for each publication. But the plaintiff is not obliged to join as a defendant every person who is liable. He may sue only one or two; and the » Martin v. Van Schaick, 4 Paige son v. Reed, 8 F. & F., 149; Burcher (N. Y.), 470; Stubbs V. Marsh, 15 L. v. Orchard et ux., Style, 849; T., 313; Odgers on L. & S., 407. Swithin et ux. v. Vincent et ux., 2 2 Thomas v. Ramsey, 6 Johns. (N. Wils., 237; Tait v. Culbertson, 57 Y.), 36; Odgers on L.&S., 430; Harris Barb., 9. V. Huntington, Tyler (Vt), 147; Wil- JOINT DEFENDANTS. 383 liability of the others will be no defense for those sued, or miti- gate the damages recoverable. The defendants sued cannot recover any share of damages or costs from the others, who might have been but are not sued,^ though the judgment is a bar to any subsequent action on the same publication against any one else who was jointly liable with them therefor. 1 Colburn v. Patmore, 1 C, M. & R., 73; 4 Tyr., 677. OHAPTEE XIX. PRIVILEGED COMMUNICATIONS. 5 1. Privileged Communications Defined. 2. Proper Meaning of the Term. 3. The Doctrine Discussed. 4. Illustrations. 5. Every Defamatory Publication Implies Malice — Privileged. Com- munications. 6. Burden of Proving Malice^ 7. Eequisites of the Occasion. 8. A Legal Defense to the Action. 9. The Question of Privilege for the Court. 10. Duty of the Court when the Communication is Privileged. 11. Circumstances Determine the Question of Privilege. 12. The Law Stated by Chief Justice Bronson. 13. Illustrations — Digest of American Cases. (1) The General Doctrine. (2) Agencies, Mercantile, etc. (3) Associations, Churches, etc. (4) Attorneys and Counselors at Law, etc. (5) Candidates and Applicants for Public Positions. (6) Employer and Employee. (7) Judicial Proceedings, etc. (8) Master and Servant, etc. (9) Public Meetings, etc. (10) Public Officers, etc. 14. General Digest of English Cases. Prxvileged Occasions. 15. The Subject Classified. 16. First, the Absolute Privilege, 17. The Rule Founded on Public Policy. 18. The General Rule. 19. A Further Classification. 20. First Class — Communications in the Course of Legislative Pro- ceedings. 31. The Legislative Body Must be in Session. 23. The Law of England. 38. Illustrations— American Cases: A Massachusetts Case, Coffin v. Coffin, 4 Mass., 1. 24. Digest of American Cases. 25. Digest of English Cases, PRIVILEGED COMMUNICATIONS. 3S5 § 36. Second Class — Communications in the Course of Judicial Proceed- ings — Conduct and Management — The Administration of Pub- lic Justice. 27. The Rule Stated by Justice Lord, 28. "Words Uttered in the Course of a Trial. y ;' 29. Extent of the Privilege. 30. The Privilege Limited. 31. No Action Lies for Defamatory Statements Made in the Course of Judicial Proceedings. S3. Judges of Courts. * 33. Illustrations — Digest of American Cases. 34. Digest of English Cases, 35. Attorneys and Counselors at Law. 36. Privilege of Counsel — Discussion of the Subject — Maryland Court of Appeals — For Limiting the Privilege to Words Having Refer- erence to the Subject-matter of the Litigation — The Opinion of the Court by Justice Robinson — For the Absolute Privilege — Dissenting Opinion by Justice McSherry. 37. Illustrations — Digest of American Cases. 38. Digest of English Cases. 39. Parties Litigant Entitled to the Same Privilege. 40. Illustrations — Digest of American Cases. 41. Prosecuting Witnesses before Justices Entitled to the Same Privi- lege. 42. Illustrations — American Cases: A Massachusetts Case, Hoar v. Wood, 44 Mass., 193. A New York Case, Allen v. Crofoot, 2, Wend., 515. 43. Witnesses. 44. The Rule in Starkie. 45. The American Rule. 46. Illustrations — American Cases: A Maryland Case, Henkell v. Von- ei£E (18SS), 6 Atl. Rep., 500. A Tennessee Case, Shodden v. McEl- wee (1887), 5 S. W. Rep., 603. 47. Digest of American Cases. 48. Digest of English Cases. 49. Jurors Entitled to Privilege, when. 50. Affidavits, Pleadings, etc, — Tlie English Rule, 51. The American Rule. 52. Illustrations — American Cases : An Indiana Case (the Privilege Al lowed), Hartcock v. Reddick, 6 Blackf., 855, A Nebraska Case, Pierce v, Oard, 33 Neb. , 828. An Iowa Case, Rainbow v. Benson, 71 Iowa, 801. A Maryland Case, Bartlett v, Christhelf, 6 Atl. Rep, 518, A Massachusetts Case (the Privilege Not Allowed), McLough' lin V. Cowley, 137 Mass., 316. 53. Digest of American Cases, 54. Digest of English Cases. 55. Publication of the Pleadings before Trial Not Privileged. 56. Illustrations — American Cases : A Michigan Case, Park v. Detroit Tribune Co. (1888), 40 N, W. Eep., 781. 26 386 PEIVILEGBD COMMUNICATIONS. § 57. Third Class — Communications Relative to Naval and Military Af- fairs. 58. Extent of the Rule in America. 59. Heads of Departments Keepers of the Archives, i 60. Illustrations — Digest of American Cases. 61. Digest of English Cases. 63. Second, the Qualified Privilege — The Subject Classified. First Class — Qualified Privilege. 63. Where the Circumstances Cast upon the Party the Duty of Making the Communication. 64. Character of the Duty Cast upon the Party Communicating. 65. The Party Must Guard against Exaggerated Expressions. 66. Manner of Communication — The Subject-matter. 67. When the Communication Exceeds the Privilegie. 68. Province of the Court and the Jury. Communications Volunteered in the Dischakge of a Duty. 69. A Confidential Relation Existing between the Parties. 70. The Rule Stated by Chief Justice Shaw. 71. Manner of Conveying the Communication. 73. The Law Illustrated — Examples and Applications. 73. Illustrations — Digest of American Cases. , 74. Digest of English Cases. 75. No Confidential Relation Existing between the Parties. 76. The Doctrine of Voluntary Communications Discussed. 77. Danger of Voluntary Statements. 78. Parties Making Statements Must Believe Them. 79. Illustrations — Digest of American Cases. 80. Digest of English Cases. 81. Communications Relating to the Character of Servants. 83. Character of Servants. 83. A Favorable Character May be Retracted. 84. Eagerness to Prevent Former Servant from Obtaining Employment Evidence of Malice. 85. Illustrations — Digest of American Cases. 86. Digest of English Cases. 87. Confidential Communications in Answer to Inquiries. 88. The General Rule. 89. Pertinency of the Answers. 90. Illustrations — Digest of American Cases. 91. Digest of English Cases. 93. Confidential Communications Not in Answer to Inquiries. 93. The Cases Distinguished. 94. Illustrations — Digest of American Cases 95. Digest of English Cases. 96. Communications Relating to the Misconduct of Others and Crimra— A Duty Owed to the Public. PRIVILEGED COMMUNICATIONS. 387 § 97. The Rule Stated by Ingks, L. P. 98. Communications in the Prosecution of Inquiries Regarding Crimes. 99. Illustrations — Digest of American Cases. 100. Digest of English Cases. 101. Communications Containing Charges against Public Officers. 103. Caution to be Observed in Making Statements. 103. Illustrations — American Cases: A Wisconsin Case, Ellsworth v. Hayes, 71 Wis., 437. 104. Digest of Amei-ican Cases. 105. Digest of English Cases. 106. The Rule Stated by Baron Fitzgerald. 107. Illustrations — Digest of English Cases. 108. Communications to Protect Private Interests. 109. Extent of the Publication — Must Not be Excessive. 110. The Privilege, when Not Defeated — Intemperate Statements. 111. Illustrations — American Cases: A Michigan Case, Smith v. Smith (18S9), 41 N. W. Rep., 499. A New York Case, Klinck v. Colby, 46 N. Y., 437. 113. Digest of American Cases. 113. Digest of English Cases. 114. Communications Provoked by the PlaintifTs Request or Contriv- ance. 115. The Rule Stated by Lord Denman. 116. The Second Occasion, etc.. Discussed. 117. Illustrations — American Cases: A Massachusetts Case: Bradley V. Heath, 39 Mass., 163. 118. Digest of American Cases. 119. Digest of English Cases. 130. Communications Provoked by a Party's Misconduct — The Right to Defend One's Character. 131. Limitation of the Rule. 133. Illustrations — American Cases: A Minnesota Case, Quimby v. Tribune Co., 38 Minn., 538. A Massachusetts Case, SheffiU v. Van Dusen, 81 Mass., 485. A New York Case, Beardsley v. May- nard, 7 Wend., 560. 123. Digest of English Cases. Second Class— Qualified Privilege. 134. Parties Having a Common Interest. 135. Illustrations — American Cases : A Michigan Case, Bacon v. Mich- igan R. R. Co., 33 N. W. Rep., 181. AVermont Case, Shurtlefl V. Stevens, 51 Vt., 503. A Kansas Case, Kirkpatrick v. Eagle Lodge, 20 Kan., 384. 136. Digest of American Cases. 137. Digest of English Cases. 138. Where there is a Community of Interest. 139. Illustrations — Digest of American Cases, 130. Digest of English Cases. 131. Unnecessary Publicity to be Avoided. 388 PKIVILEGED COMM0NIOAT1ON8. § 133. Exaggerated Expressions Not Privileged. 133. Illustrations — Digest of American Gases, 134. Communications Relating to Candidates for OflBce. 135. Freedom of the Discussion. 136. Qualification and Fitness May be Discussed, Not Private Character. 137. The Rule in Pennsylvania. 138. Defamation Concerning Candidates — A General Rule. 139. Illustrations — American Cases: A Michigan Case, Wheaton v. Beecher, 33 N. W. Rep., 503. 140. Digest of American Cases. 141. Digest of English Cases. , 142. Petition for the Removal of OfiSoers — How Far Privileged. Third Class — Qualified Privilege. 143. Publication of the Proceedings of Legislative Bodies — Courts of Justice — Public Meetings, etc. 144. First, Legislative Bodies. 145. Illustrations — Digest, of American Cases. 146. Digest of English Cases. 147. Second, Judicial Proceedings — Requisites of the Report. 148. Illustrations — Digest of American Cases. 149. Digest of English Cases. 150. Exceptions to the Rule. 151. Illustrations — Digest of English Cases. 153. Reports of Ex Parte Proceedings and Preliminary Examinations. 153. Illustrations — Digest of American Cases. 154. Digest of English Cases. 155. Essentials of the Report. 156. Not Essential that the Report Should be Verbatim. 157. Extent of the Privilege. 158. The Press Has No Exclusive Privilege. 159. Illustrations — Digest of American Cases. 160. Digest of English Cases. 161. Partial Reports. 163. Illustrations — Digest of English Cases. 163. Reports to be Confined to the Proceedings. 164. Illustrations — Digest of American Cases. 165. Digest of English Cases. 166. Questions of Practice for Consideration. 167. Duty of the Jury. 168. Publication of the Proceedings of Public Meetings. 169. Consequences of the Publication. 170. Illustrations — Digest of American Cases. 171. Digest of English Cases. § 1. Privileged Communication Defined.— A privileged communication is one made in good faith upon any subject- matter in which the party communicating has an interest or DEFINITION — DOCTRINE. 389 in reference to which he has, or honestly believes he has, a duty, to a person having a corresponding interest or duty, and which contains matter which, without the occasion upon which it is made, would be defamatory and actionable.^ § 2. The Proper Meauing of a Privileged Communication is only this: That the occasion on which the communication was made rebuts the mference of. malice prima facie arising from a statement prejudicial to the character of the plaintiff, and puts upon him the burden of proving that there was malice. In short, that the defendant was actuated b}' motives of per- sonal spite or ill-will, independent of the occasion on which the communication was made.'^ § 3. The Doctrine cf Privileged Communications.— The great underlying principle upon which the doctrine of priv- ileged communications rests is public policy. This is more especially the case with absolute privilege, where the inter- ests and the necessities of -society require that the time and occasion of the publication or utterance, even though it be both false and malicious, shall protect the defamer from all liability to prosecution for the sake of the public good. It rests upon the same necessity that requires the individual to surrender his personal rights, and to suffer loss for the benefit of the com- mon welfare. Happily for the citizen, this class of privilege is restricted to narrow and well-defined limits. Qualified priv- ilege exists in a much larger number of cases. It extends to all communications made hona fide upon any subject-matter in which the party communicating has an interest, or in ref- erence to which he has a duty to a person having a correspond- ing interest ot* duty ; and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.' ' Harrison v. Bush, 5 E. & B., 344; 16 N. T., 373; Hen wood v. Harrison, 25 L. J., Q. B., 28; Whitely v. 41 Law J., C. P., 206; Edwards v. Adams, 15 C. B. (N. S.), 392; 33 L. Chandler, 14 Mich., 471? Washburn J.. C. P.,89. V. Cooke, 3 Denio (N. Y.), 110; 2 Wright V. Woodgate, 2 Cr. , M. & Knowles v. Peck, 42 Conn., 386; R., 573; 1 T. & G., 13; Taylor v. Easley v. Moss, 9 Ala., 266; Van Hawkins, 16 Q. B., 308; 20 L. J., Q. Wick v. Aspenwall, 17 N. Y., 190; B., 313; Flood on L. & S., 208. Cockayne v. Hodgkisson, 5 Car. & 'Bacon' V. Mich. C. R. R. Co., 33 P., 543; McDougal v. Claridge, 1 N. W. Rep., 181; Lewis v. Chapman, Camp., 207; Wetherston v. Hawkins, 390 PBIVILEGED COMMUNICATIONS. § 4. Illustrations. — A person is called as a witness and sworn to speak tbe truth, the whole truth, and nothing but the truth. He may do so without fear of any legal liability, even though he is thus compelled to defame his neighbor. A person is asked for a character of his late servant by one who has ap- plied for a situation. He may state in reply all he knows against him without being liable to an action, provided he does so honestly and truth- fully to the best of his knowledge. A party comes to live in the town and privately asks his neighbor's opin- ion as to such a lawyer, doctor, tradesman or workman. His neighbor may tell him in answer all he knows concerning each of them, both as to their skill and ability in their business, and also as to their private character, their integrity or immorality ; provided he does not maliciously exaggerate or deliberately misstate the facts. Odgers on L. & S., 181. If a witness in the box volunteers a defamatory remark quite irrelevant to the cause in which he is sworn, with a view of gratifying his own vanity and of injuring the professional reputation of the plaintifif, still if it has reference to the matter in issue or fairly rises out of any question asked him by counsel, no action lies against such witness ; the words are still ab- solutely privileged, for they were spoken in the box. Seaman v. Nether- clift, 1 C. P. D., 540; 45 L. J., C. P., 798; 34 W. E., 884; 34 L. T:, 878; 2 C. P. D., 53; 46 L. X, C. P., 128; 25 W. R., 159; 35 L. T., 784. But if I maliciously give a good servant a bad character in order to pre- vent her " bettei'ing herself," and so compel her to return to my own serv- ice, the case is thereby taken out of the privilege, and the servant may recover damages. Jackson v. Hopperton, 16 C. B. (N. S.), 829; 13 W. E., 913; 10 L. T., 539. § 5. Every Defamatory Publication Implies Malice — Privileged Communications an Exception. — Every defama- tory publication, whether expressed by words spoken or by writing, printing, pictures, efiSgies, or otherwise charging or imputing to any person that which renders him liable to pun- ishment, Qr which is calculated to make him infamous or odious or ridiculous, prima facie implies malice in the author and publisher towards the person concerning whom such publioa- 1 Term E., 110; Lawton v. Bishop, 25 Law J., Q. B., 35; Whitely v. etc., L. E., 4 P. C, 495; Thompson Adams, 15 C. B. (N. S.), 893; 33 Law V. Dash wood, 11 Q. B. Div., 45; J., C. P., 89; Shipley v. Todhunter, Davies v. Snead, L. R., 5 Q. B., 611; 7 Car. & P., 680; Harris v. Thomp- Waller v. Lock, 45 Law T. (N. S.), son, 13 C. B., 333; Wilson v. Eobin- 243; Sommerville v. Hawkins, 10 C. son, 7 Q. B., 68; 14 Law J., Q. B., B., 583; 30 Law J., C. P., 131; Two- 196; Taylor v; Hawkins, 16 Q. B., good' v. Spyring, 1 Cromp., M. & R., 308; 20 Law J., Q. B., 313; Mandy v. 181; Bank v. Henty, 7 App. Cas., Witt, 18 C. B., 544; 35 Law J., C. P., 741; Delaney v. Jones, 4 Esp., 193; 394. Hanisoa v. Bush, 5 El. & Bl., 344; BUEDEN OF PapOF — MALICE — BJBIViLEGE. 391 tion is made, and proof of malice is not in such ca,ses to be required of tiie party complaining beyond the proof of the publication itself. The justification, excuse or extenuation, if either can be shown, must proceed from the defendant. But privileged communications are an exception, and the rule of evidence as to such communications is so far changed as to ris- quire of a party to bring home to the alleged defamer the existence of malice as the true motive of his conduct.' §6. Burden of Proving Malice. — A communication made in good faith upon any subject-matter in which the party com- municating has an interest or in reference to which he has a duty, either legal, moral or social, if made to a person having a corresponding interest or duty, is privileged, and the burden of proving' the existence of malice is cast upon the person claiming to have been defamed.^ § T. Requisites of the Occasion. — A communication, to be privileged, must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or proper cause. When so made in good faith the law does not imply malice from the communication itself, as in ordinary cases. Actual malice must be proved before there can be a recovery; and in the absence of such proof a nonsuit should be granted.' § 8. A Legal Defense to an Action for Defamation. — It is a legal defense to an action for defamation, if satisfactorily proven, that the circumstances under which the defamatory words were published were such as to render it right and proper that the defendant should plainly state what he hon- estly believed to be the plaintifiE's character — to speak Ijis mind fully and freely concerning him. In such cases the com- munication is said to be privileged; and though it may be false, still its publication on such an occasion is excused for the sake of the common convenience and welfare of society at large. § 9. The Question of Privilege is for the Court, Malice for the Jury. — The theory of privilege in connection with 1 White V. Nichols, 3 How. (U. S.), Bishop, etc., L. R., 4 P. C, 495 ; Two- 286. good V. Spy ring, 1 C, M. & E., 193; 2Briggs V. Garrett, 111 Penn. St., Harrison v. Bush, 5 E. & B., 344. 414; Addison on Torts, sec. 1091; ^Briggs v. Garrett, 111 Penn. St., Quinnv. Scott, 33 Minn., 456; Marks 404. V. Baker, 13 Rep., 530; Langhton v. 392 PEIVILEGED COMMUNICATIONS. the law of defamation involves a variety of conditions of some nicety, and also a doctrine not always of easy application to a set of facts ; and such being the case in any trial, whether civil or criminal, while the question of libel or no libel, malice or no malice, are matters of fact for a jury, the question of privi- lege or no privilege is entirely one of law for the judge.' That is to say, it is exclusively for the judge to determine whether the occasion on which the alleged defamatory statement was made was such as to render the communication a privileged one. The jury, however, will be the proper tribunal to deter- mine 'the question of express malice where evidence of ill-will^ is forthcoming; but if, taken m connection with admitted facts, the words complained of are such as must have been used honestly and in good faith by the defendant, the judge may withdraw the case from the jury and direct a verdict for the defendant.^ § 10. Duty of the Court when the Communication is Privileged. — When the court holds the communication to be entitled to the privilege, the jury should be instructed to con- sider and determine whether. or not the defendant used the occasion for the sole reason and purpose which conferred the privilege upon his statement; and if the jury find from the sur- rounding circumstances, as shown by the evidence, that he did so use it solely for such reason and purpose, the verdict will be for the defendant. But if, on the other hand, they find that he employed the occasion in bad faith, to gratify or to further some indirect or malicious motive, or for some other improper reason, the verdict will be for the plaintiff. Where the com- munication is entitled to the privilege, the burden of proof is then upon the plaintiff to show actual malice in the sense of oblique design or bad faith.* § 11. Circumstances Determine the Question of Privi- lege.— The court in deciding whether a communication is privileged or not will of course have regard to all the cir- cumstances of the case disclosed by the evidence.* If the com- munication, whether written or oral, be of such a character iStace V. Griffith, L. E., 2 P. C, 3 Clark v. Molyneux. L. E., 3 Q. ^0. B. , 237 ; 47 L. J. , C. L. , 330 ; Flood on 2 Spill V. Maule, 4 Exoh. , 233 ; 38 L. L. & S., 220. J., Ex., 138; Flood on L. & S., 213. iSpill v. Maule. 38 ^L. J.. Ex., 138. THE LAW STATED. 393 that the expressions contained in it are beyond what common sense even indicates to be justifiable, it cannot be held as privi- leged.* ■ § 12. The Law Stated by Bronson, C. J.— In the common case of a libelous publication or the use of slanderous words, a charge of malice in the declaration calls for no proof on the part of the plaintiif beyond what ma}-- be inferred from the injurious nature of the accusation. The principle is a broad one. In all cases where a man intentionally does a wrongful act without just cause or excuse, the law implies a malicious in- tent towards the party who may be injured; and that is so even though the wrong-doer may not have known at the time on whom the blow would fall. But in actions for defamation, if it appear that the defendant had some just occasion for speaking of the plaintiff, malice is not a necessary inference from what, under other circumstances, would be a slanderous charge; and it would often be necessary for the plaintiff to give every evidence of a malicious intent. There maybe many of these privileged communications; as where the charge is made in giving the character of a servant, or in a regular course of discipline between members of the same church ; in answering an inquiry concerning the solvency of a tradesman or banker, or where the communication was confidential be- tween people having a common interest in the subject to which it relates.. In these and other cases of the same nature, the general rule is that malice is not to be inferred from the pub- lication alone. The plaintiff must go further and show that the defendant was governed by a bad motive, and that he did not act in good faith, but took advantage of the occasion to in- jure the plaintiff in his character or standing.^ § 13. Privileged Communications — Illustrations — Digest of American Cases. — (1) The General Doctrine. 1. Where in an action for defamation tlie defense is that of privileged communication, the question for the jury is not whether the language used was true, nor whether the defendant had reasonable ground to believe it to be true, but whether he honestly believed it to be true, and used it without 1 Fryer v. Kinnersly, 15 C. B. (N. ^ Washburn v. Cooke, 3 Den. (N. S), 433 ; 33 L. J.. C. P. , 9G ; Flood on Y.), 110. L. & S., 313. 394 PEITILEGED COMMUNICATIONS. malice in the reasonable protection of his own interests, or in the proper defense of an attack upon his character. Provided the language used is a necessary part of his defense, and fairly arises from the charges made against him, and is not unnecessarily defamatory, nor more extensively circulated than the circumstances of the case require, and plaintiff fails to show that defendant did not so believe and properly use the statements complained of — that is, fails to show actual malice in the dafendant — the verdict should be for defendant, whether the charge be true or false. Chaf- fin V. Lynch (Va.), 6 S. E. Rep., 474. 2. The defendant had suspected and dcclai-ed his suspicions that a per- son's wife had committed larceny, but upon being inquired of by that per- son whether his suspicions continued, replied tliat he was now satisfied that A. B., a hired maid, stole it. Held that, if the communication was priv- ileged at all, the defamatory matter, going further than to satisfy the in- quirer that there were reasons for the suspicions to cease, went beyond the exigency of the occasion. Robinette v. Ruby, 13 Md., 95. 3. Privileged communications are of four kinds, to wit: Where the pub- lisher of the alleged slander acted in good faith in the discharge of a public duty, legal or moral, or in the prosecution of his own rights or interests; an3'thing said or written by a master concerning the character of a servant who has been in his employment; words used in the course of legal or ju- dicial propeedings ; and publications duly made in the ordinary mode of parliamentary proceedings. White v. Nichols, 3 How. (U. S.), 266. 4. The principle on which privileged communications rest which of them- selves would otherwise be libelous imports confidence and secrecy between individuals, and is inconsistent with the idea of communication made by a society or congregation of persons, or by a private company or corporate body. Beardsley v. Tappan, 5 Blackf. (Ind.), 497. 5. On the trial of an action on the case for libel the plaintiff offered in evidence a petition to the judge of the circuit court, signed by the defend- ant and otherS, charging the plaintiff with gross neglect of his duty as state's attorne5' of the circuit ; with being wilfully and corruptly guilty of oppression in office, and of corrupt malfeasance in office; of taking bribes from parlies accused and indicted, and pursuance of corrupt agreements releasing them from prosecution, and containing many and various specific charges, and concluding by asking the judge to suspend the plaintiff from the discharge of the duties of his ofSce until the grand jury could investi- gate the charges. The circuit court on objection refused to admit the same as evidence, on the ground that it was a privileged communication. Held, that the court erred in refusing to admit the same. It should have been admitted, and then the question would be whether it was presented in good faith for the purpose of having a state's attorney pro- tern, appointed to pre- pare and prosecute an indictment against the plaintiff, or prepared for a bad purjiose and from malicious motives. Whitney v. Allen, 63 111., 473. 6. When a requisition is presented for the arrest of a fugitive from jus- tice with the proper vouchers, according to the act of congress, it is the duty of an executive to cause the fugitive to be arrested and delivered to the agent appointed to receive him, and the governor has no power to en- tertain an application to recall or modify such warrant; and an affidavit to ILLUSTEATIONS GENEKAL DOCTKINE. 395 support such an application is not a priTileged communication. Hosmer v. Loveland, 19 Barb. (N. Y.), 111. 7. In general an action lies for the malicious publication of statements which are false in fact and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious unless it is fairly made by a person in the dis- charge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice which the law draws from unauthorized communications, and affords a qualified defense depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such comniunications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. Swan V. Tappan, 5 Cush. (Mass.), 104, 110 ; Gassett v. Gilbert, 6 Gray (Mass.), 94, 97. Where words imputing misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the discharge of that duty, or where they are spoken in good faith to those who have an interest in the communication and a right to know and act upon the facts stated, no presumption of malice arises from the speaking of the words, and therefore no action can be main- tained in such case without proof of express malice. If the occasion is used merely as a means of enabling the party uttering the slander to indulge his malice, and not in good faith to perform a duty or make a communication useful and beneficial to others, the occasion will furnish no excuse. Sliaw, C. J., in Bradley v. Heath, 13 Pick. (Mass.), 163, 164; Sheokell v. Jackson, 10 Cush. (Mass.), 25, 36. 8. The publication in a newspaper of false and defamatory matter is not privileged because made in good faith as a matter of news. The right to publish through the newspaper press such matters of interest as may be thus properly laid before the public does not go to the extent of allowing the publication, concerning a person, of false and defamatory matter, there being no other reason or justification for doing so than merely the purpose of publishing the news. Mallory v. Pioneer P. Co., 36 N. W. Eep. (Minn.); 904; Cooley on Torts, 319 ; Sheokell v. Jackson, 10 Cusli. (Mass.), 35 ; Detroit Daily Post v. McArtbur, 16 Mich., 447; Perrett v. New Orleans Times, 25 la. Ann., 170; Smart v. Blanchard, 42 N. H., 137; Usher v. Severence, tO Me., 9; Foster v. Scripps, 39 Mich., 376. 9. In a suit brought for charging the plaintiff with stealing two beds it is not competent for the plaintiff, for the purpose of showing malice, to prove that the defendant subsequently made a complaint against him be- fore a magistrate for stealing a lot of wood and old iron, for the words used in the complaint do not relate to the charge which is the subject of the ac- tion, and because such using of the words is a proceeding in a court of jus- tice, before a magistrate having jurisdiction of the supposed offense, and privUeged as such. Watson v. Morse, 2 Cush. (56 Mass.), 133. 10. An advertisement warning the public against the negotiation of notes alleged to have been stolen, in the absence of any showing of express 396 PEIVILBSED COMMUNICATIONS. malice, is a privileged communication and not a libel. Commonwealth v. Featherston, t» Phil. (Penn.), 594. 11. Upon the parents' inquiry one may state his belief in good faith as to the conduct of a minor child, as in this case, "She stole one hair-brush," without being liable for slander. Long v. Peters, 47 Iowa, 339. ' 12. H., as assistant inspector of the board of health of New York city, made an official report, published in a public journal, in which he recom- mended a certain kind of street pavement, giving statistics. E. caused a communication to be published to the effect that the statements in the re- port were dictated by parties interested in the pavement, and that H. re- ceived a reward for their publication. In an action by H. against E. for libel, held, that the occasion did not justify an attack on H.'s private char- acter, and in the absence of proof of the accusation E. was liable, however good his motives. Hamilton v. Eno, 81 N. Y., 116. 13. Statements made by a resident of a school district, having a daughter attending its school therein, to the trustees, charging bad character to a female teacher, are privileged communications, and the person making them is not liable for slander in the absence of malice. But the fact that the person making them had no reason to believe the statements to be true, or that he knew them to be false, would show malice which would render him liable. Harwood v. Keech, 6 Thompson & C. (N. Y.), 665 ; 4 Hun, 389. 14. In an action for words contained in a letter written by the defendant, where the letter itself contains nothing on its face to indicate that it was privileged or written under circumstances which would prevent it from being actionable, and could therefore only be made privileged if at all by extraneous evidence, the burden of proof is on the defendant to show that it' was thus privileged ; and when such letter is shown to have been a reply to one written to the defendant, and he has neither introduced the letter so sent him nor raised any objection at the time for the failure of the plaintiff to call for its introduction, he will not be entitled, on the basis of any pre- sumption that his letter was strictly responsive to the one in reply to which it was sent, to raise the question of its admissibility in evidence unaccom- panied by the other letter, by a request to have the jury instructed that if the defendant's letter was written in answer to the one sent him, and was strictly responsive and without malice,- and written in the oriiinary course of business, the defendant was entitled to a verdict. Day v. Backus, 31 Mich., 241. 15. A female employee of a deaf-mute asylum sued the superintendent for slander, in falsely stating to the executive committee that she wrote an obscene letter to his wife, by reason of which she was discharged. The an- swer alleged that the defendant believed the letter to have been written by the plaintiff, with whose handwriting he was well acquainted, and that he sent it, with specimens of her handwriting, to an expert, who pro- nounced it to have been written by her, and who stated in writing his rea- sons for his belief, and that the defendant, without malice, referred the papers to the committee for their action, and that he never charged the plaintiff with the offense. He alleged the foregoing in mitigation of dam- ages and by way of justification, and claimed that his sayings and doings were privileged communications. Hdd, that they were privileged if so ILLUSTRATIONS GENEEAL DOCTEINE. 397 made ; that he was not excluded from proving them privileged by his al- legation of the same facts in justification ; that the reasons for the expert's belief should have been admitted in evidence, as well as the fact that the ' committee acted upon these reasons ; that it was error to charge that the plaintiff could recover for her expenses in vindicating her character and for damages that might be occasioned in the future. Halstead v. Nelson, 24 Hun (N. Y.), 395. 16. One whose house has been set on fire may, with proper precaution and without malice, communicate to his family his suspicion as to who did it, without becoming liable to the one accused. But the fact that he repeated the accusation to others may be given in evidence to show that the communication to his family was made maliciously. Campbell v. Ban- nister, 79 Ky., 205. 17. A charge of dishonesty against the parish attorney, made in good faith in the discharge of their official duties by members of the police jury, does not render them liable in damages for a libel. Fisk v. Soniat, 33 La. Ann., 1400. 18. A letter to a woman containing libelous matter concerning 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. "Joannes " v. Bennett, 87 Mass., 169. 19. Where A. had had a forged check passed on him bj'' a stranger, and afterwards a relative of B., having heard that A. charged him with the forgery, of his own accord applied to A. — saying, however, he came at B.'s request — for information respecting the charge and to convince A. that he was mistaken. A. thereupon told him that B. was unquestionably gniilty, and proposed to arrange the matter by receiving the amount ob- tained on the check, and on that- occasion persisted in the charge after being warned not to do so. In an action for slander by B. against A., it was held that the communication was not privileged, and that the plaintiff was entitled to recover without proof of express malice. Van Tassell v. Capron, 1 Denio (N. Y.), 250. 20. The only efifect of privilege on actionable words is to rebut the legal inference or presumption of malice, and to that extent constitutes a good defense to an action upon them. Garrett v. Dickerson, 19 Md., 418. Whether words in themselves sufficient to raise the legal presumption of malice are privileged is a question of law determinable from the circum- stances attending their utterance. Words ascertained to be privileged aa matter of law still involve the element of fact of good faith in speaking them ; and in general evidence of any act or circumstance tending to show the want of good faith may be offered to remove the protection of privilege and show the existence of malice. Coffin v. Coffin, 4 Mass., 1. 21. Publications falsely charging the commission of a crime when not based upon facts legally tending to prove the crime are not privileged. Peoples V. Detroit Post & Trib. Co., 54 Mich., 457; 20 N. W. Rep., 528, 22. The cashier of a bank returned a draft stating that the drawee " pays no attention to notices." Held, in an action by the drawee for slander, the words were not actionable. Platto v. Geilfuss, 47 Wis., 491 ; 2 N. W. Bep., 1135. 398 PEFVILEGED COMMTJNIOATIONS. 23. Words actionable per se, if written or spoken to one whose business it is to know and who has a right to know and act upon the facts commu- nicated, are conditionally privileged, and to give a right of action thereon malice must be shown. A communication made by defendant to the agent or president of an insurance company in which plaintiff's property was in- sured at the time of its destruction by fire, charging plaintiff with arson in setting fire thereto, and with perjury in making his proofs of loss, is con- ditionally privileged ; and in an action for slander or libel for such commu- nication the complaint must allege that defendant, when he made the same, knew it to be false, or must in some other form charge him with malice in making it. Noonan v. Orton, 33 Wis., 106. 24. In a case regarding disputed property, where a witness is asked to fix a certain date, a reply as follows : "Not knowing that a mistress or woman of Mr. Pitt would step in to claim the lawful wife's property, I did not keep an account of the date that way. If I would have, I would have no- ticed the date, and all those little particular incidents," — is not so wholly foreign to the case as to be beyond the privilege of a witness, and is therefore not actionable as slander. Robinson and Bryan, JJ., dissenting. Hunckel V. Voneift (Md.), 14 Atl. Rep., 500. 25. An action for libel will not lie for statements contained in a petition by a receiver against his co-receiver, that such co-receiver was unlawfully withholding a portion of the assets, and was obstructing their collection, and that he was acting in contempt of court, and had embezzled some of the trust money, even though they are malicious and false ; such statements being made in the course of judicial proceedings. Bartlett v. Christhilf (Md.), 14 Atl. Rep., 518. 26. The privilege of counsel in the trial of a cause is a qualified one, and slanderous words spoken by him, having no reference to the cause then on trial, nor to any subject-matter involved therein, nor to any judicial inquiry pending therein, are actionable. McSherry and Stone, JJ., dissenting. Maulsby V. Reif snider (Md.), 14 Atl. Rep., 505.- 2 7. Words spoken by defendant's counsel, on the trial of an action by an attorney to recover for professional services, that the plaintiff, as attorney for the defendant, had collected and refused to pay over $5,000 of defend- ant's money, relate to the subject-matter of inquiry ; and whether true or false, and whether spoken maliciously or in good faith, will not sustain an action for slander. Maulsby v. Reif snider (Md.), 14 Atl. Rep., 505. 28. One P., a merchant, applied to a justice for a warrant against a mar- ried woman on the ground that she had taken a pair of overshoes of the value of $1.15 from his store. The justice refused to issue the warrant. A few hours afterwards P. again applied for the warrant, saying in effect that she had stolen three pairs of shoes from his store and that he could prove, it, but the justice again refused. On the next day P., with a constable, went to the residence of her husband without process and charged her in the presence of her husband and children with the larceny of the shoes, and procured payment under. threats of arrest, etc., for the shoes, and $1.50 for costs. In an action for slander it was shown by a preponderance in the testimony that she had paid for the shoes when they were procured. Held, that the communications of P. with the magistrate, being without reason- ILLUSTRATIONS — • GENERAL BOCTEINE. 399 able and probable cause, were not privileged. Pierce v. Oard (Neb.), S7 N. W. Rep., 677. 29. The fact that a privileged communication vsras made in the hearing of third persons not legally interested will afford no evidence of express malice when their presence appears to have been casual and not sought for by defendant. The fact that the expression used by defendant on a privileged occasion was such as to evince indignation at plaintiff for a supposed crime will not destroy the privilege of the communication, if the substance of the state- ment was pertinent to the privileged matter and was honestly believed by defendant. "When one person applies to another for credit, and the latter seeks infor- mation from a third as to the trustworthiness of the applicant, a privileged occasion arises for communications bearing on that subject. Fahr v. Hayes (N. J.), 13 Atl. Rep., 261. 30. A person who was discharged from service on applying to his em- ployer to know why was told it was for stealing. In an action for slander it was held that as he had asked the question, and as the answer was given in good faith, there was no cause of action. Bieler v. Jackson, 64 Md., 589. 31. Publications in a newspaper which falsely charge the commission of a crime are actionable, and, when not based upon any fact legally tending to prove the crime imputed, the publication cannot be said to, be privileged. Peoples V. Detroit P. & T. Co., 54 Mich., 457; 20 N. W. Rep., 528. 32. "Where a false publication is privileged and believed to be true, malice must be shown by other evidence than its falsity. Behee v. Missouri Pac. R. Ck). (Tex.), 9 S. W. Rep., 449. 33. In an action for slander it appeared that defendant's wife received an obscene anonymous letter, partly in writing, partly printed. Defendant was superintendent of a deaf-mute institution, and plaintiff an employee therein. Defendant took the letter to the chairman of the executive board, stated his belief plaintiff had written it, and they sent it to an expert in penmanship for comparison with some of plaintiff's known handwriting. He pronounced both written by the same person. The entire matter was then laid by them before" the whole board, and, though plaintiff denied writing or sending the letter, she was discharged. Held, that defendant's statement to the chairman of the executive board was a privileged com- munication. Halstead v. Nelson, 1 N. Y. S., 380. 34. The plaintiff had been a clerk in the defendant's store. On his leaving, the firm of which the defendant was a member gave him a letter of recom- mendation saying that he had attended to his duties in a satisfactory man- ner. A few days after a letter was written to a Mr. Shiletto of Cincinnati, telling him that since the plaintiff had left there they had heard of his tak- ing several trunks, larger than required for his clothing, and requesting him to have some officer watch him and examine his baggage. His trunks were examined, but he was not discharged. The defendant in his answer claimed that the matter was a privileged communication. No special dam- age was shown. It was held that after the firm had given the letter of general recommendation, if one of the partners was led by facts subsequently coming to his knowledge to change his opinion, it was his right and duty to 400 PRIVILEGED COMMUNICATIONS. communicate the facts to a subsequent employer in order to guard him against being misled by the former recommendation of the firm, and the communication was privileged. Fowles v. Bo wen, 80 N. Y., 30. 35. If the plaintiff, in an action for publishing disparaging statements concerning his goods whereby he has sustained special damage, proves that the publication is false in any material respect and that he has sustained any special damage therefrom, such proof makes a prima facie case, and malice is to be presumed. If the defendant then proves that the publica- tion was honestly made by him, believing it to be true, and that there was a reasonable occasion therefor, in the conduct of his own affairs, which fairly warrants the publication, such proof renders the publication privi- leged and constitutes a good defense to the action, unless the plaintiff can show malice in fact, which is a question for the jury. Swan v. Tappan, 5 Cush. (Mass.), 104; Gott v. Pulsifer, 132 Mass., 235. 37. A New Orleans firm, in private correspondence with a New York house, repeated information received from its own correspondent at Mobile as to a firm at Mobile, as follows : "D. & Co. are people of no standing or credit whatever. Neither have they any means. Up-to last July they were dealers in chickens, eggs, etc. Since that time they have been buying cot- ton quite freely, to the general astonishment of the community. . . . We told them we could never touch their bills again unless they wrote us a letter stating their means, and which we would forward to your good selves subject to your approval. They were furious enough, but up to now we never received that promised letter." Held, that the matter was privileged. Dunsee v. Norden, 36 La. An., 78. 38. It is a good defense in an action for libel that the alleged libel was in the nature of a privileged communication ; and although it appears not true was believed to be so by the publishers, who acted without malicious intent. Holt v. Parsons, 23 Tex., 9. 39. An action for words will not lie against a party who speaks in the performance of any duty, legal or moral, public or private, or in the asser- tion of his own rights, or to vindicate or protect his interest, without proof of express malice, though the charge imputed be without foundation. Where the defendant had a forged check passed* to him by a stranger, and afterwards a relative of the plaintiff, having heard that the defendant charged the plaintiff with the forgery, of liis own accord applied to the de- fendant (saying, however, that he came at the plaintiff's request) for infor- mation respecting the charge and to convince the defendant that he was mistaken, and thereupon the defendant told him that the plaintiff was un- questionably guilty, and proposed" to arrange the matter by receiving the amount obtained on the check, and on that occasion persisted in the charge after being warned not to do so, held, that the conversation was not privi- leged, and that the plaintiff was entitled to recover without proof of express malice. Thorn v. Moser, 1 Denio (N. Y.), 487. 40. The publication in a public journal of an article charging a member of the legislature with corruption is not privileged. Littlejohn v. Greely, 13Abb. (N. Y.)Pr., 41. 41. Charges against a public ofiBcer contained in a petition to the council of appointment praying his removal from otB-ce, although the words used ILLUSTEATIONS AGENCIES, MERCANTILE, ETC. 401 are false and malicious in themselves, without proving express malice or that the petition was actually malicious and groundless, and presented merely to injure the plaintiff's character, were held in New York not to be libelous. Thorn v. Blanchard, 5 Johns. (N. Y.), 508. [The doctrine of the case, however, may be doubted. It does not seem to be in accord with the gist of AmericEn dec slons. — M. L. N.] (3) Agencies, Mercantile, etc. 1. The principle that a communication which woujd otherwise be slan- derous and actionable is privileged if made in good faith, upon a matter involving au interest or duty of the party making it, though such duty is not strictly legal, but an imperfect obligation to a person having a corre- sponding interest or duty, applies to an agent etoployed to procure informa- tion as to the solvency, credit and standing of another, who communicates confidentially and in good faith the information obtained to his principal, who has an interest in the subject-matter. Ormsby v. Douglass, 37 N. Y., 477. 2. The defendant, the head of a mercantile agency, whose object was to procure information of the pecuniary standing of country merchants for city merchants, to be communicated confidentially to the latter, was sued for libel and slander for communicating to others, through his clerks, facts damaging to the plaintiff's credit. Held, that it was not error to charge that, had the defendant communicated the information to a person apply- ing to him for the purpose in good faith, the communication might have been a privileged one ; but that the publicity given to it by recording the libelous words in a book to which others bad access, and to whom they were communicated, though standing in the relation of clerks, deprived the communication of its otherwise privileged character. Beardsly v. Tap- pan, 5 Blackf. (Ind.), 497. 3;. A communication to a commercial agency from its local correspondent as to the financial standing of a person doing business at any place is so far privileged in the hands of the persons conducting such agency that they may lawfully make known its contents confidentially to their sub- scribers seeking information on that subject, provided this is done without malice and in the belief that the statements are true. State v. Lonsdale, 48 Wis., 348; 4 N. W. Rep., 390. 4. The mayor of a city who was ex officio chief of police, upon the infor- mation of some boys who had been arrested for stealing, called at the store of M. for the purpose of finding the stolen property, and charged him (M.) with having purchased such goods, knowing them to be stolen. Held, that this was a privileged communication, which was not actionable with- out proof of malice in fact. Mayo v. Sample, 18 Iowa, 306. 5, 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 faitli, but intended to do a wanton injury to the plaintiff. The sheriff levied upon certain cattle of W., and they were wrongfully driven away, whereby he was likely to be damnified, and he employed C, a mere student at law, to ascertain the facts, and to advise what course it was best to pursue. Held, 26 403 PRIVILEGED GOMMUNIOiTIONS. that C.'s letter to the sheriff, stating facts implicating W., and advising his arrest for larceny of the oattle, was privileged. Washburn v. Cooke, 3 Den., 110. 6. If a mercantile agency makes misstatements in writing to its custom- ers about the drinking habits and mercantile character of a merchant, say- ing, for instance, that he is drinking and failing in business, the company may be liable if the written statements are seen by the clerks of the sub- scribers and perhaps by other persons. Johnson v. Bradstreet Co., 77 Ga., 173. 7. Written information as to the standing of a merchant or business man, furnished by a mercantile agency to its subscribers voluntarily or in an- swer to inquiries from them, is a privileged communication if not defama- tory and actuated by malice. Lake v. Bradstreet Co., 32 Fed. Rep., 771. 8. Information respecting a mercantile firm, communicated by the de- fendant to a person by whom he is employed for the purpose, and who was directly interested in ascertaining their credit, but afterwards printed by the defendant and furnished to merchants having no immediate inter- est in learning the standing of the firm, held not to be within the rule of privileged communications. Taylor v. Church, 1 E. D. Smith (N. Y.), 379. 9. The verbal statements of a mercantile agency, made in relation to the plaintiff's, business, credit and standing as a merchant to their subscribers who had an interest in knowing the facts, and in answer to inquiries made by them, if made in good faith and upon information on which defendant relied, are privileged communications and cannot be made the foundation of an action. Erber v. Dun, 4 McCrary, C. Ct., 160; Trussell v. Scarlett, 18 Fed. Rep., 214 10. Defendants, who conducted a mercantile agency, issued semi- weekly to subscribers a notification sheet. In an issue of this sheet it was untruly stated that plaintiff, a trader, had mortgaged his stock. Certain creditors of plaintiff saw this statement, and the result was that plaintiff's credit was affected and his business broken up. The sheet was Sent to all sub- scribers and the information was intended not to go beyond them. The creditors who saw it were not subscribers. There was no malice in fact on defendant's part. Held, that the publication was privileged and that an action was not maintainable. [Dixbn, Magie, Van Syckel, Clement and Whitaker, JJ., dissenting.] King v. Patterson, 49 N. J. L., 417. 11. A communication to a " commercial agency" from its local corre- spondent as to the commercial standing of a person doing business in any place is so far piHvileged in the hands of the persons conducting such agency that they may l9,wf uUy make known its contents confidentially to their subscribers seeking information upon that subject, provided it is done without malice and in the belief that the statements are true. State v. Lonsdale, 48 Wis., 348. (3) Associations, Churches, etc. 1. A representation to an ecclesiastical authority having power to exam- ine and redress grievances in respect to the character of a clergyman or a member of the church is prima facie a privileged communication, and if made in good faith is not a ground for an action of slander. O'Donaghue v. McGovern, 23 Wend. (N. Y.), 26. ILLUSTRATIONS — ASSOCIATIONS, CHURCHES, ETC. 403 2. The conduct and transactions of a member of the Detroit board of trade is a matter-of public interest, and may form the subject of a privi- leged publication. Atkinson v. Detroit Free Press Co., 46 Mich., 341 ; 9 N. W. Rep., 501. 3. A communication of a church member complaining of the conduct or character of his clerygman to their common superior, and seeking his removal, if not malicious, is privileged. When the communication is prima facie privileged, the plaintiff must aver and prove that it was false and malicious. He may be held to this proof on the general issue ; but if the defendant plead the privilege specially, he must deny all malice or insist upon probable cause. O'Donaghue v. McGovern, 33 Wend., 26. 4-. A resolution introduced into a county medical society for the expul- sion of a member upon the ground that he procured his admission by false pretenses and without the legal qualifications is not privileged, for the so- ciety has no power to expel a member for such a cause. Pawcett v. Charles, 13 Wend., 473. 5. In a suit for libel it appeared that the libel was in fact a report, made and submitted by the defendants, as a committee of the college of phar- macy in New York, to the board of trustees, showing various acts of in- competency by the plaintiff as inspector of drugs for the port of New York, and by the boai-d transferred to the secretary of the treasury with a view to his removal. Held, that it was a privileged communication, if made in good faith and probable cause as to its truth, and its transmission to the secretary of the treasury did not alter its character. Vanwycke v. Guthrie, 4 Duer (N. Y.), 268; Van Wyck v. Aspinwall, IT N. Y., 190. 6. The principal of an institution for deaf-mutes is justified in laying be- fore the trustees evidence tending to show that a teacher has sent obscene matter through the mails. Halstead v. Nelson, 36 Hun (N. Y.), 149. 7. The action of a member of a congregation in publishing to all the world a libel concerning his minister or priest is not privileged, however it may be as to a like communication addressed to the: church authorities. State V. Bienvenu, 36 La. Ann., 378. 8. A bank director is not justified in making a communication to a co- director in the public streets affecting the credit or responsibility of a mer- chant where there is no evidence of such communication being confidential. At a meeting of the board of directors he would be justified in communi- cating to his associates any report which he might have heard in relation to the solvency or circumstances of the customers of the bank, or probably of any other person. His motive in such cases would be presumed to be innocent, which presumption should only be repelled by proof of express malice. Sewall v. Catlin, 3 Wend. (N. Y.), 291. 9. A letter to a member of an association of ministers, containing libel- ous matter concerning another member, and written by a minister not a member of the association, is not a privileged communication. Shurtleflf V. Parker, 180 Mass., 293. 10. In the absence of proof of malice the members of a session of a Pres- byterian church are not liable to an action of libel for the excommunication from membership in the church. Landis v. Campbell, 79 Mo., 433 j 49 Am, Eep., 239. 404 PEIYILEGED COMMUNICATIONS. 11. 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. The existence of malice is a question for the jury to . decide. Jarvis v. Hatheway, 3 Johns. (N. Y.), 180. 12. The publication by directors of an incorporated society for promoting female education, in their annual report, of a " caution to the public" against trusting a person who had formerly been employed to obtain and collect subscriptions in their behalf, but has since been dismissed, is justi- fied so far only as it is made in good faith and required to protect the cor- poration and the public against false representations of that person. Gas- sett V. Gilbert, 6 Gray (Mass.), 94. 13. The report by the officers of a corporation to the stockholders of the result of their investigation into the conduct of their officers and agents, with their conclusions upon the evidence collected by them, is a privileged communication, in the absence of any malice or bad faith ; but the privilege extends only to making the report, and not to the preservation of it in the form of a book, distx'ibuted among the stockholders and in the community. Philadelphia, etc., E. R. Co. v. Quigley, 21 How., 202. 14. A representation to a bishop or church judicatory having power to hear, examine and redress grievances in respect to the character or conduct of a minister of the gospel or a member of a church is prima fade a privi- leged communication, and if made in good faith an action of slander does not lie against the party presenting it; but if the rfepresentation is false or impertinent, made without probable cause or^ belief in the truth, the action lies. The burden of proving its falsehood and malice is, however, on the plaintiff. O'Donaghue v. McGovern, 23 Wend., 36. 15. In an action for slander, the plaintiff being a member and the de- fendant a priest of a Roman Catholic church, the words charged in the complaint were: "This P. S. (plaintiff) is excommunicated, because he laid hands on the priest to put him out of the church. I will not pray for him, and consider him a lost sheep, and withdraw all my pastoral blessings from him. If he shall die the burial rights of the church will be denied him." It was held that the words were actionable with proof of special damage ac- cruing to the plaintiff therefrom, unless their publication was legally justi- fiable ; and if the words were sjookeu by the defendant in the proper dis- charge of his clerical and pastoral duties and without malice, their publica- tion was legally justifiable. Servatius v. Pichel, 34 Wis., 393. (4) Attobnkys and Counselors at Law. 1. The privilege of counsel in advocating the rights of his client, and of the party himself where he manages his own case in a judicial proceeding, is as broad as that of a member of a legislative body. However false and malicious may be the charge made by the counsel or tbe party upon such an occasion, affecting the reputation of another, an action of slander will not lie, provided that what is said be pertinent to the question under dis- cussion. The remedy is by action on the case. Where, however, a verdict is rendered for the plaintiff in an action of slander, the judgment will hot be arrested if the pertinency of the words and the time of the uttei-ance are not in issue and found against the defendant, although from the decla- ILLUSTEATIONS — CANDIDATES, ETO. 405- ration it appears tliat the words were spokeu in the course of a judicial in- quiry. Hastings v. Lusk, 22 Wend., 410. 2. -Where a sheriff, having levied upon certain cattle which were subse- quently driven away, employed the defendant, a student at law, to ascer- tain the facts and advise him what to do, who afterwards wrote to the sheriff that he had ascertained that the plaintiff had been seen driving off the cattle, and ho had no doubt but that the taking was felonious, and ad- vised him to prosecute the plaintiff for larceny, held, a privileged commu- nication, for which an action would not lie without proof of actual malice. Washburn v. Cook, 3 Den. (N. Y.), 110. 3. A publication charging attorneys in their conduct of a case with " be- traying and selling innocence in a court of justice," and with doing acts "to be held up to the world as derelict in their sense of honor and obliga- tion," is libelous, and not in the nature of a report of a proceeding in a court of justice, and not privileged. Ludwig v. Cramer, 53 Wis., 193; 10 N. W. Rep., 81. (5) Candidates and Applicants fob Public Positions, etc. 1. A memorial presented to the board of excise, remonstrating against the granting of a license to a particular individual to keep a tavern, charg- ing him with stirring up justice's suits with a view of having the causes tried in his tavern, is a privileged communication ; and no actioQ lies as for the publication of a libel, unless express malice is proved. The circulation of the memorial for the purpose of obtaining signatures thereto is within the privilege. Vanderzee v. McGregor, 12 Wend., 545. 2. The defendant, as marshal, said of the plaintiff, who was an appli- cant for a place under him, that " they say he is a church robber, and I'll have no man in my employ who has robbed a church." Held, that the communication was privileged, and that to make it slanderous express mal- ice must be proved by the plaintiff. Brockerman v. Kyser, 1 Phil. (Penn.), 243. 3. A newspaper publication which falsely imputes crime to a candidate for an elective oflBce is a libel, malice being imputable, and the charge not being privileged by the occasion ; but under the law in Michigan the pub- lisher's belief in the truth of the charge, after reasonable and proper in- vestigation, may go in mitigation of damages. Bronson v. Bruce, 59 Mich., 467. 4. Libelous matter published in a newspaper in regard to a candidate for public office is not a privileged communication. Aldridge v. Press Print- ing Co., 9 Minn., 133. The publication in a newspaper of an attack upon a person not a candidate for the votes of the people, but for those of an ap- pointive power, is not privileged. Hunt v. Bennett, 19 N. Y., 173. 5. The only limitation to the right of criticism of the acts or conduct of a candidate for an office in the gift of the people is that the criticism be hona fide. This right being confined to the acts or conduct of such candi- date, whenever the facts which constitute the act, or conduct criticised are not admitted they must be proven. But as respects his person there is no such large privilege of criticism, though he be such candidate. Whatever 406 PEIVILEGBD COMMUNICATIONS. imputes to him a crime or moral delinquency is not a privileged communi- cation, either absolute or conditional, but is per se actionable. Sweeney v. Baker, 13 W. Va., 158. 6. Charges against the private character of a person holding an elective o£GU;e, published more than a year before the occurrence of the next election, were held not privileged j)rima facie, though he had not disclaimed his in- tention to be a candidate for re-election. Com. v. Wardwell, 136 Mass., 164. 7. Words spoken without malice of a candidate -for ofiBce in the belief of their truth and for the sole purpose of advising electors of what was be- lieved to be the true character of the candidate are privileged. Bays v. ,Hunt, 60 Iowa, 251. 8. An article otherwise libelous may be privileged if circulated in good faith among the voters for the purpose of giving them information believed by the writer to be truthful and of importance to aid them in deciding how to vote. State v. Baloh, 81 Kan., 465. 9. There is no obligation upon a citizen, when discussing the conduct of public servants in their official capacity, and who speaks the truth as he de- signs to be understood and as he is understood by his hearers, to employ any prescribed form of expression or language. So long as he speaks the truth he is not liable in damages whether his language be chaste or vulgar, refined or scurrilous. But where one exercises the citizen's right to de- nounce the actions of a public officer, it is unlawful for him to make a false and malicious charge of crime or misdemeanor in office. Rowand v. De Camp, 96 Pa. 8t„ 493. 10. A publication by the editor of a newspaper affecting the character of a candidate for public office is not a privileged communication, relieving the publishers from the necessity of proving the truth of the charge made to shelter themselves from damages ; and the burden of proof is upon the party slandered of showing actual malice or a knowledge of the falsity of the charge. Editors may publish what they please in relation to the char- aoj:er and qualifications of candidates for office, but they are responsible for the truth of the publication. King v. Root, 4 Wend., 113. 11. A communication to the proper authorities charging that a candidate was unfit for the position of a teacher and of bad moral character, made by persons interested in a particular school, is privileged when not mali- ciously made. Weiman v. Mabie, 45 Mich., 484; 8 N. W. Rep., 71. 12. Where a member of a board of education has, in an interview with a reporter, criticised adversely the action of the superintendent of schools in not recommending a teacher for re-appointment, and expressed the opinion that the superintendent was actuated by personal hostility towards the teacher, a reply to such statements, di-awn from the superintendent by a reporter and published, explaining his action and alleging that the teacher in question was not a successful teacher of drawing, that she had many in- firmities of temper and a vacillating disposition, is privileged by the occa- sion. O'Connor v. Sill, 60 Mich., 175; 27 N. W. Rep., 18. > 13. Where a person addresses a complaint to persons competent to redress the grievance complained of, no action will lie against him whether his statement be true or false, or his motives innocent or malicious. Thorns v. ILLUSTKATIONS EMPLOYED AND EMPLOYEE. 407 Blanchard, 5 Johns. (N. Y.), 508. But an action on the case lies for a com- munication to the head of the government department charging a subordi- nate with peculation and fraud. Such action is in the nature of an action for malicious prosecution, and to sustain it plaintiff must show malice and a want of probable cause. Where the conduct of such subordinate, with at- tending circumstances, is such as to excite honest suspicion of the person making the charge, the question of probable cause should be submitted to a jury. And plaintiff may rest his case on the ground of probable cause, ex- cept where it is a mere matter of mitigation. Howard v. Thompson, 21 Wemd. (N. Y.), 319; (6) Employer and Employee. 1. In an action for libel it appeared that the defendant was employed by the father of the plaintiff's wife to accompany her home on a visit to her parents, and that the defendant was dii-ected to make inquiries concerning the general standing of the plaintiff. On the return of the defendant he reported the result of his inquiries to the father, and wrote a letter alleged to contain the libel, and to the same effect, to the mother of the plaintiffs wife. Held, that the trust which the defendant had assumed, and the re- lation in which he stood to the parents of the plaintiff's wife, created an occasion which made the communication privileged, if fairly made. HM, also, that it was for the jury to decide, on the question of express malice, whether the defendant had made an honest report justified by the relations in which he was placed, or whether it was made, with a purpose wrongfully to defame the plaintiff. At will v. Mackintosh, 120 Mass., 177. 2, The defendant, a baker employing several drivers in delivering bread in T. and adjoining towns, inserted in a newspaper published in T. a notice that the plaintiff " having left my employ, and taken upon himself tho privilege of collecting my bills, this is to give notice that he has nothing further to do with my business." In an action for libel in publishing this notice, the plaintiff requested the judge to rule that the community had no such interest in the subject-matter of it as would authorize the defendant to make it through the medium of a newspaper. The judge refused so to rule, and ruled that the publication was privileged if made in good fait^^, and the jury would find it was a necessary or reasonable mode of giving notice. Held, that the plaintiff had no ground for exception. Hatch v. Lane, 105 Mass., 894. 3, Words spoken by an employer to his overseer, intended to protect the employers private interests and property, but not spoken maliciously, are not actionable, although no confidence was expressed at the time of speak- ing, and although the same "words, published under other circumstances, would be slander. Easly v. Moss, 9 Ala., 366. 4. A letter written to the plaintiff's former employer stating that it is reported that the plaintiff has tools in his chest belonging to the employer, and suggesting that the letter be shown to a superior officer, and offering assistance to investigate the matter, was held on demurrer to be libelous in itself. Cochran v. Melendy, 59 Wis., 207; 18 N. W. Eep., 24. 408 PBIVILEGED COMMUNICATIONS. * (7) Judicial PROCEBDiNas, etc. 1. Words charging a witness with perjury, uttered by a party or his counsel in the course of a trial, may or not be actionable, accordingly as they were or were not spoken maliciously, were or were not pertinent to the issue, as there was or was not color for making the imputation, or as they were or were not spoken with a design to slander the witness, etc. The privilege of a party is the same on such an occasion as that of counsel ; and if either of them speak slanderous words of a witness or party, imper- tinently or without proper cause, an action of slander lies. A declaration, therefore, charging an imputation of perjury to have been made in address- ing referees by a party, upon the plaintiff, a witness in the cause against the party, and that it was made falsely and maliciously, the verdict being for the plaintiflF, is good on motion in arrest of judgment. Ring v. Wheeler, 7 Cow., 725. (8) Master and Servant. 1. For privileged communications, made with honest motives and for justifiable ends, the party making them is not responsible, the case being disrobed of one important element to constitute slander, that is, malice either in law or in fact. The most ample shield of protection is extended to those who act fairly and prudently, in order that men may not be deterred by the fear of civil actions or public prosecutions from making communica- tions with or either Important to themselves or beneficial to others. The most common cases of this kind are those which have arisen from actions brought by servants against their master. In the case of master and serv- ant the convenience of mankind requires that what is said in fair commu- nication between men upon the subject of character should be privileged if made bona fide and without malice. If, however, the party giving the character knows what he says to be untrue, that may deprive him of the protection which the law throws around such communications. Elam v. Badger, 23 111., 498. 2. After a mercantile firm has given to one of its clerks a general recom- mendation as such, if a partner is led by facts subsequently coming to his knowledge to change his opinion it is his right and duty to communicate the facts to a subsequent employer, in order to guard him against being misled by the previous recommendation of the firm. Such a communica- tion, if true, is privileged, and in order to sustain an action thereon the plaintiff must show it to have been made maliciously. Fowles v. Bowen, SON. T., 20. (9) Public Meetings, etc. 1, At a town meeting having under consideration an application from the assessors of the town for reimbursement of expenses incurred in defend- ing a suit on the ground that it was for acts done in their official capacity, which was opposed on the ground that the suit was brought against them (or making false answers under oath to interrogatories propounded to them in another suit, the statement of a voter and tax- payer of the town that the assessors had therein perjured themselves is privileged, if made in good ILLUSl'EATIONS DIGEST OF ENGLISH CASES. iOO faith with a belief in jts truth and without actual malice towards the assess- ors. And the good faith and want of malice of the defendant, when mate- rial, may be shown by his own testimony. Smith v. Higgins, 83 Mass., 251. 2. Words spoken in good faith and within the scope of his defense by a party on trial before a church meeting are privileged, and do not render him liable to an action although they disparage private character. York v. Pease, 3 Gray (68 Mass.), 382. 3. There must be both a duty and an interest in the subject-matter of the communication. Thus, the charge was that the plaintiff had put two votes into the ballot-box. It appeared that the defendant was one of the select- men of the town, and that the words were spoken in open town meeting, during an election at which the defendant was acting in his capacity as a public officer. This case falls under both branches of the rule. It was the duty of the defendant, charged with the proper conduct of the election, to give notice to the citizens there assembled if any one put in two votes, in order that an investigation might take place and the truth be ascertained, and that by a new ballot or otherwise, according to the circumstances, the error might be corrected. It was a communication also in which all the voters had an interest. Bradley v. Heath, 13 Pick. (Mass.), 163. (10) Public Officers, etc. 1. It is a matter of privilege to call public attention to the act of a pub- lic judicial officer in ordering a person into confinement without a charge against him, or in requiring bail in an amount which, considering the pris- oner's probable means and position in life, he is unable to give. Miner v. Detroit Post & Trib. Co., 49 Mich., 358; 18 N. W. Eep., 773. 2. An article in a public newspaper charging an officer with gross mis- conduct in office cannot be claimed to be privileged on the ground of its publication being a public good, as, if untrue, it is a public injury. Bour- reseau v. Detroit Ev. Jour. (Mich.), 30 N. W. Eep., 376. 3. The plaintiff held the office of inspector of drugs imported into the city of New York. The college of pharmacy appointed a committee to as- certain whether complaints that spurious drugs had been imported were true. The committee made a report including charges against the plaintifE in his office to be sent, and it was sent, to the secretary of the treasury, who thereupon removed the plaintifE. Beld, a privileged communication. Van Wyck V. Aspinwall, 3 Smith, 190; aflf'g Van Wyck v. Guthrie, 4 Duer, 268. § 14. Digest of English Cases.— 1. The plaintiff was a London merchant who had had business relations with the London and Yorkshire Bank. The defendant, the manager of that bank, on being applied to by one Hudson for information about' the plaintiff, showed Hudson an anonymous letter which the bank had received about the plaintiff, and which contained the libel in question. Held, that handing Hudson the letter in confidence was a privileged communication. Grove, J., in refusing a new trial made the following remarks: "The de- fendant did not act as a volunteer, but was applied to for information. When applied to he did give such information as he possessed. He might 410 PBIVILEGED 00MMUNICATI0M8. have refused to give that information. He had no .legal duty cast upon him to give any opinion. But he was entitled to give his opinion when asked, and a fortiori, as it seems to me, to show any letters he had received bearing on the subject. If one man shows another a letter be leaves him to estimate what value attaches to it ; whereas any opinion he gives might be based on very insuflScient grounds. It is better to state facts than to give an opinion. Every one owes it as a duty to his fellow-men to state what he knows about a person when inquiry is made ; otherwise no one would be able to discern honest men from dishonest men. It is highly de- sirable, therefore, that a privilege of this sort should be maintained. An anonymous letter is usually a very despicable thing. But anonymous let- ters may be very important, not by reason of what they say, but because they lead to inquiry, which may substantiate what they have said. It seems to me, therefore, that he was fully entitled to show this anonymous letter for what it was worth." Eobshaw v. Smith, 38 L. T., 433; Odgers onL.&S., 308. 2. Plaintiff had been tenant to the defendant. A wine-broker went to de- fendant to ask him plaintiff's present address. Defendant commenced to abuse the plaintiff. The broker said: " I don't come to inquire about his character, but only for his address; I have done business with him before." But the defendant continued to denounce the plaintiff as a swindler, add- ing, however: "I speak in confidence." The broker thanked defendant for his remarks, and declined in future to trust the plaintiff. Held, that it was rightly left to the jury to say if defendant spoke bona fide or mali- ciously. Picton V. Jackman, 4 C. & P., 357; Southam v. AUen, Sir T. Ray- mond, 331. 3. If A. is about to have dealings with B., but first comes to C. and con- fidentially asks him his opinion of B., C.'s answer is privileged. Every one is quite at liberty to state his opinion bona fid.e of the respectability of a party thus inquired about. Storey v. Challands, 8 C. & P., 334. 4. Watkins met the defendant in Brecon and addressing him said: "I hear that you say the bank of Bromage and Snead at Monmouth has stopped. Is it true?" Defendant answered: "Yes, it is. I was told so. It was so reported at Cricklewell, and nobody would take their bills, and I came to town in consequence of it myself." Held, that if the defendant understood Watkins to be asking for information by which to regulate his conduct, and spoke the words merely by way of honest advice, they were privia facie privileged. Bromage v. Prosser, 4 B. & Cr., 347; 1 C. & P., 475; 6D. &R., 396. 5. The defendant was asked to sign a memorial, the object of which was to retain the plaintiff as trustee of a charity from which oflBce he was about to be removed. The defendant refused to sign, and on being pressed for his reasons stated them explicitly. Held, a privileged communication. Cowles V. Potts, 34 L. J., Q. B., 347; 11 Jur. (N. S.), 946; 13 W. R., 858. 6. Where a communication, libelous in itself, but such that the occasion of it would have rendered it privileged if made by letter to the person alone to whom it was addressed, was in fact made by means of a telegram, held, not to be privileged, though made bona fide, because the mode of conveying the information necessarily involved publication to the postoffice ILLUSTRATIONS DIGEST OF ENGLISH OASES. 411 clerks. Held, also, it was not less a publication because section 20 of 31 and 33 Victoria, chapter 110, makes the disclosure of the contents of a tele- graphic message by any official in the postolBce a misdemeanor. William- son V. Freer, 7 Chi. Leg. N., aO; L. R., 9 C. P., 393; 43 L. J., C. P., 161; W. R., 868; 30 L. T., 363. 7. Tlie plaintiff had been a major-general commanding a corps of irregu- lar troops during the war in the Crimea. Complaint having been made of the insubordination of the troops, the corps commanded by the plaintiff was placed under the superior command of General Vivian. The plaintiff then resigned his command, and Greneral Vivian directed General Shirley to inquire and report on the state of the corps, and particularly referred him for information on the matter to the defendant, who was General . Vivian's private secretary and civil commissioner. All communications made by the defendant to General Shirley touching the corps and the plaintiff's management of it are privileged, if the jury find that the defend- ant at the time honestly believed that he was acting within the scope of his duty in making them. Beatson v. Skene, 5 H. & N., 838; 39 L. J., Ex., 480; 6 Jur. (N. S.), 780; 3 L. T., 378; Hopwood v. Thorn, 8 C. B., 393; 19 L. J., C. P., 94; 14 Jur., 87. S. A., B. and C. are brother officers in the same regiment. A. meets B. and says: " I have learned that C. has been guilty of an atrocious offense; I wish to consult you whether I should divulge it — whether I should speak of it to the commanding officer." Such remark and the discussion that en- sued would be privileged if bona fide. Bell v. Parke, 10 Ir. C. L. R., 384. 9. I am not justified in standing at the door of a tradesman's shop and voluntarily defaming his character to his intending customers. But if an intending customer comes to me and inquires as to the respectability or credit of that tradesman, it is my duty to tell him all I know. Storey v. Challands, 8C. & P., 234. 10. At the hearing of a case in court Fulcher's solicitor commented se- verely on the conduct of the plaintiff, Nettleford's debt collector. Not con- tent with that, Fulcher's solicitor sent a full report of the case to the Marylebone " Gazette," including his remarks on the plaintiff. The jury found that his report was substantially fair and accurate, but that it was sent to the newspaper " with a certain amount of malice.'' The court upheld this finding, laying especial stress upon the fact that the defendant was a volunteer, and not an ordinary reporter for that paper. Stevens v. Samp- son, 5 Ex. D., 53; 49 L. J., Q. B., 130; 38 W. R., 87; 41 L. T., 783. 11. If a master, hearing that a discharged servant is seeking to enter M.'s service, writes to M. of his own accord to give the servant a bad character, and thus forestalls any inquiry by M., it will at all events require stronger evidence to prove that he acted bona fide than it would had he waited for M. to write and inquire. Pattison v. Jones, 8 B. & C, 578; 3 M. & R., 101. 12. Horsford was about to deal with the plaintiff, when he met the de- fendant, who said at once, without his opinion being asked at all, "If you have anything to do with Storey you will live to repent it ; he is a most un- principled man." Lord Denman directed a verdict for the plaintiff, because the defendant began by making the statement without waiting to be asked. Storey v. Challands, 8 C. & P., 234. 412 PEIVILEG-ED COMMUNICATIONS. 13. Nash selected plaintiff to be his attorney in an action. Defendant, apparently a total stranger, wrote to Nash to deprecate his so employing the plaintiff. This was held to be c|early not a confidential communica- tion. Damages Is. Godson v. Home, 1 B. & B., 7; 3 Moore, 333. 14. A husband asked a medical man to see his wife and ascertain her mental condition. He reported thai; she was insane. Held, a pririleged communication. Weldon v. Winslow, Times for March 14 to 19, 1884. 15. A report by the comptroller of the navy to the board of admiralty upon the plans and proposals of a naval architect is clearly privileged. Kenwood v. Harrison, L. R., 7 C. P., 606 ; 41 L. J., C. P., 306 ; 30 W. R., 1000 ; 36L. T.,938. 16. A time-keeper employed on public works on behalf of a public de- partment wrote a letter to the secretary of the department imputing fraud to the contractor. Blackburn, J., directed the jury that if they thought the letter was written in good faith and in the discharge of the defendant's duty to his employers it was privileged, although written to the wrong person. Scarll v. Dixon, 4 F. & F., 350. 17.- A relation or intimate friend may confidentially advise a lady not to marry a particular suitor and assign reasons, provided he really believes in the truth of the statements he makes. Todd v. Hawkins, 3 M. & Rob., 30: 8 C. & P., 88; Adams v. Coleridge, 1 Times L. R., 84. 18. The defendant and Tinmouth were joint owners of The Robinson, and engaged the plaintiff as master; in April, 1843, defendant' purchased Tinmouth's share ; in August, 1843, defendant wrote a business letter to Tinmouth, claiming a return of £150 and incidentally libeled the plaintiff. Held, a privileged communication, as the defendant and Tinmouth were still in confidential relationship. Wilson v. Robinson, 7 Q B., 68; 14 L. J,, Q.'B., 196; 9 Jur., 736. 19. The officers and men of the garrison of St. Helena gave an entertain- ment at the theater, at which considerable noise and disturbance took place. The commanding officer was informed that this was caused by the plaint- iff, who was said to have been drunk. The plaintiff was an assistant master in the government school. The commanding officer reported the circum- stances to the colonial secretary of the island, and the plaintiff was in con- sequence suspended from his appointment. Verdict for the plaintiff disap- proved and set aside and judgment arrested. Stace v. Griffith, L. R., 3 P. C, 436; Moore, P. G. C. (N. S.), 18; 30 L. T., 197; Sutton v. Plumridge, 16 L. T.,741. 20. It is the duty of an under-master in a college school to inform the head-master that reports have been for some time in circulation imputing habits of drunkenness to the second-master. Hume v. Marshall, 43 J. P., 136. 21. The defendant, a linen-draper, dismissed his apprentice without suffi- cient legal excuse. He wrote a letter to her parents informing them that the girl would be sent home, and giving his reasons for her dismissal. Cockburn, C. J., held this letter privileged, as there was clearly a confiden- tial relationship between the girl's master and her parents. James v. JoUj', Bristol Summer Assizes, 1879. See Fowler and wife v. Homer, 3 Camp., 294. Bo, of course, a letter to the girl herself stating in detail the faults her late ILLUSTEATIO^sS —^ DIGEST OF ENGLISH OASES. 413 employer found with her. R. v. Perry, 15 Cox, C. C, 169. But a complaint of a man's conduct is not privileged if addressed by the employer to the man's wife. Jones v. Williams, 1 Times L. R., 573. 22. Where, after an election, the agent of the defeated candidate wrote a letter to the agent of the successful candidate, asserting that the plaintiff and another (both members of the successful candidate's committee) had bribed a particular voter, the latter was held not to be privileged, as there was no confidential relation existing between the two agents. Dickeson v. Hilliard and another, L. R., 9 Ex., 79; 43 L. J., Ex., 37; 33 W. R., 873; 30 L. T., 196. 23. A circular letter, sent by the secretary to the members of a society for the protection of trade against sharpers and swindlers, is not a privileged communication. Getting v. Foss, 3 C. & P., 160; Goldstein v. Foss, 3 C. & P., 353; 6 B. & 0., 154: 4 Bing., 489; 3 Y. & J., 146; 4 D. & R., 197; 1 M. & P., 403; Humphreys v. Miller, 4 C. & P., 7. But see Waller v. Loch (C. A.), 7 Q. B. D., 619; 51 L. J., Q. B., 374; 30 W. R, 18; 45 L. T., 343; 46 J. P., 484: Clover v. Royden, L. R., 17 Eq., 190; 43 L. J., Ch., 665; 33 W. R., 354; 39 L. T., 639. 24. A former friend of the plaintiff, who tnew all about plaintiff's past wild life, hearing plaintiff was about to be married, wrote, after consulting the clergyman of his parish, to the lady, to whom he was apparently a stranger, disclosing plaintiff's antecedents. Hill, J., said that if the jury thought the defendant reasonably believed that it was his duty to write the letter he should hold it to be privileged. But the jury found a verdict for the plaintiff. Damages Is. Ex relatione Coleridge, Q. C, 15 C. B. (N. S.), 410, 411. 25. Defendant met Clark in the road and asked him if he had sold his timber yet. Clark replied that Bennett (plaintiff) was going to have it. Defendant asked if he was going to pay ready money for it, and, being an- swered in the negative, said, " Then you'll lose your timber, for Bennett owes me about £35, and I am going to arrest him next week for my money, and your timber will help to pay my debt." Clark consequently declined to sell the timber to the plaintiff. Plaintiff really did owe defendant about £33. Coltman, J., directed the jury that the caution was altogether un- privileged because volunteered ; and they therefore found a verdict for the plaintiff. Damages 40s. The court of common pleas were equally divided on the question whether the judge was tight in his direction, and there;- fore the verdict for the plaintiff stood.. Bennett v. Deacon, 3C.'B., 638; 15L. J., C. P., 389. 26. The plaintiff was a malster, and had bought a quantity of barley of Butler. The defendant said to' Butler, " Don't trust that damned rogue, he will never pay you a farthing. Have you sold King some barley? You mind and have the money for it before it goes out of the wagon, or you will never have it." Butler, in consequence, refused to deliver the barley until he was paid for it. Lord Abinger, C. B., directed the jury that the defendant's words were unprivileged because they were volunteered. Ver- dict for the plaintiff accordingly. Damages one farthing. King v. Watts, 8 C. & P., 614. 27. So where defendant said of the plaintiff, who was a tradesman, 414 PRIVILEGED COMMUNICATIONS. " He cannot stand it long; he will be a bankrupt soon," and it was laid as special damage in the declaration that one Lane had, in consequence, re- fused to trust the plaintiff for a horse. Lane was the only witness called for the plaintiff, and it appearing on his evidence that the words were not spoken maliciously, but in confidence and friendship to Lane, and by way of warning to him, and that in consequence of that advice he did not trust the plaintiff with the horse, Pratt, C. J., directed the jury that though the words were otherwise actionable, yet if they should be of opinion that the words were not spoken out of malice, but in the manner before men- tioned, they ought to find the defendant not guilty, and they did so accord- ingly. Herver v. Dowson (1765), B. N. P., 8. 28. Defendant accused the plaintiff, in the presence of a third person, of stealing his wife's brooch ; plaintiff wished to be searched ; defendant re- peated the accusation to two women, who searched the plaintiff^ and found nothing. Subsequently it was discovered that defendant's -wife had left the brooch at a friend's house. Hdd, that the mere publication to the two women did not destroy theprivilege attaching to charges if made hondfide; but that all the circumstances should have been left to the jury, who should determine whether or no the charge vras made recklessly and unwarrant- ably, and repeated before more persons than necessary. Padmore v. Law- rence, 11 A. & E., 380; 4 Jur., 458; 3 P. & D., 209; Jones v. Thomas; 34 W. R., 104 ; 53 L. T., 678; 2 Times L. R, 95. 29. Barton, a friend of the defendant, employed a builder, the plaintiff's master, to build a house for him ; the defendant informed Barton that the plaintiff while at work on his house had removed some quarterings. Bar- ton complained to the master-builder, who came down to the defendant's and said : " I am told you say that you saw my man Kine take away some of the quarterings from Mr. Barton's premises." A repetition of the charge made then to the plaintiff's master without malice was held privileged, and as the plaintiff had not called Barton to prove the original remark, the jury found for the defendant, and a new trial was refused. Parke, B., said : " Is a mau's mouth to be closed when I ask him if he has seen another man take away my timber?" Kine v. Sewell, 3 M. & W., 397. 30. Plaintiff was defendant's shopman in Plymouth till November 5. 1834. when he left and went to London, receiving from the plaintiff a good character for steadiness, honesty and industry. Early in December defend- ant found one of his female servants in possession of some of his goods. When charged with stealing them she said that the plaintiff gave them to her. Thereupon the defendant, though he knew the girl was of bad char- acter, went to the plaintiff's relations in Plymouth and charged him with felony, and eventually Induced them to give him £50 to say no more about the matter. Held, that the charge of felony was not made bona fide with any intention to promote investigation or prosecution, and was altogether unprivileged; and that no question as to malice in fact should have been left to the jury. Hooper v. Truscott, 2 Bing. N. C, 457; 2 Scott, 672. 31. A discharged servant of the defendant charged plaintiff, her former manager, with embezzlement. Defendant went to plaintiff's house, and, finding him out, said to his wife, " He has robbed me.'' This was held not to be privileged, though the jury found that defendant spoke in the per- ILLUSTRATIONS — DIGEST OF ENGLISH CASES. 415 formance, as she believed, of a duty, and in the bona fide belief that what she said was true, and without malice. Judgment for the plaintiff. Dam- ages £5. Jones v. Williams, 1 Times L. R., 573. Plaintiff assaulted de- fendant 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 circum- stances, that they did not render the charge of felony a privileged publica- tion. Smith V. Hodgeskins, Cro. Car., 376. 32. A letter written to the postmaster-general, or to the secretary of the general postoflSce, complaining of misconduct in a postmaster, is not a libel if it was written as a bona fide complaint, to obtain redress for a grievance that the party really believed he had suffered ; and particular expressions are not to be too strictly scrutinized if the intention of the defendant was good. "Woodward v. Lander, 6 C. & P., 548; Blake v. Pilford, 1 Moo. & Rob., 198. 33. The defendant drafted a memorial to the home secretary on a mat- ter within his jurisdiction, and read it to M. in the presence of M.'s wife, and asked M. to sign it. M. signed it, and the defendant then sent it to the home secretary. Grove, J., held that both the petition and the conver- sation with M. were prima facie privileged. Sp.nckman v. Gibney, Bristol Spring Assizes, 1878. 34. The plaintiff was a sanitary inspector under the statute 41 and 43 Vict., ch. 74, sec. 43, appointed by the local authority, but removable by the privy council ; the defendant addressed a letter to the privy council, charg- ing the plaintiff with corruption and misconduct in his ofBce. Held, that no action lay without proof of malice. Proctor v. Webster, 16 Q. B. D., 112; 55 L. J,, Q. B., 150; 53 L. T., 765; Odgers on L. & S., 327. 35. A time-keeper employed on public works, on behalf of the board of works, wrote a letter to the secretary of the board, imputing fraud to the contractor. Blackburn, J., directed the jury that, if they thought the let- ter was written in good faith and in the discharge of what the defendant considered his duty to his employers, it was privileged, although such a complaint should have been addressed to Mr. Harris, the resident engineer. Scarll v. Dixon, 4 F. & F., 250; Tompson v. Dashwood, 11 Q. B. D., 43; 53 L. J., Q. B., 425; 48 L. T., 943; 48 J. P., 55. SO. An Irish coroner sent to the chief secretary of Ireland a report of an inquest he had held on the body of an outdoor pauper, and at which the plaintiff, who was the relieving officer, had given evidence. He mentioned in this report that the parish priest, who happened to be in court, stated publicly at the conclusion of plaintiff's evidence, "This is nothing short of perjury." Held, that this portion of the report, at all events, was not priv- ileged, as the chief secretary could have no interest in hearing Father Cal- lary's opinion of the plaintiff's evidence. Lynam v. Gowing, 6 L. R., Ir., 259; Odgers on L. & S., 339. 37. The plaintiff was a teacher in a district school. The inhabitants of the district prepared a memorial charging the plaintiff with drunkenness and immorality, which they sent to the local superintendent of schools. It ought strictly to have been sent to the trustees of that particular school 416 PEIVILBGED COMMUNICATIONS. in the first instance, and such trustees would then, if they thought fit, in due course forward it to the local superintendent for him to take action upon it. Held, that the publication was still prima facie privileged, although by a mistake easily made it had been sent to the wrong quarter in the first instance. Mclntyre v. McBean, 13 Up. Canada, Q. B. Eep., 534. 38. Where the defendant wrote a letter to the home secretary complain- ing of the conduct of the plaintiff, a solicitor, as clerk to the borough mag- istrates, this was held not to be privileged, because Sir James Graham had no power or jurisdiction whatever over the plaintiff. There was moreover evidence of malice. Blagg v. Sturt, 10 Q. B., 899; 16 L. J., Q. B., 39; 8 L. T. (O. S.), 135; 11 Jur., 101. 39. Lord Denman, in delivering the judgment of the court, said: " Some remark from the defendant on the refusal to pay the rent was perfectly justifiable, because his entire silence might have been construed into an acquiescence in that refusal, and so might have prejudiced his case upon any future claim, and the defendant would therefore have been privileged in denying the truth of the plaintiff's statement. But, upon consideration, we are of opinion that the learned judge was quite right in considering the language actually used as not justified by the occasion. Any one in the transaction of business with another has a right to use language bona fide which is relevant to that business, and which a due regard to his own interest makes necessary, even if it should directly or by its consequences ' be injurious or painful to another ; and this is the principle on which privi- leged communication rests; but defamatory comments on the motives or conduct of the party with whom he is dealing do not fall within that rule. It was enough for the defendant's interest, in the present case, to deny the truth of the pla,intiff's assertion ; to characterize that assertion as an attempt to defraud and as mean and dishonest was wholly unnecessary." Robert- son V. M'Dougall, 4 Bing., 670; 1 M. & P., 692;'3 C. & P., 259; Hancock V. Case, 2 F. & F., 711; Jacob v. Lawrence, 4 L.'E., Ir., 579; 14 Cox, C. C, 331. 40. The defendant was clerk of the peace of the county of Kent, and as such it was his duty to have the register of county voters printed, the ex- pense of such printing being allowed by the justices in quarter sessions. In 1854 the defendant employed a new printer, who charged less for the job; the defendant wrote a letter to the finance committee of the justices stating his reasons for the change, and added that to continue to pay the charges made by his former printer, the plaintiff, would be "to submit to what appears to have been an attempt to extort money by misrepresenta- tion." Held, that the rest of the letter was privileged, as it was proper and necessary for the defendant to explain to the finance committee what he had done ; but that the words imputing proper motives to the plaintiff were uncalled for and malicious. Damages' £50. Cooke v. Wildes, 5 E. & B., 328; 24 L. J., Q. B., 367; 1 Jur. (N. 8.), 610; 3 C. L. R., 1090. 41. The defendant owed the plaintiff £6 10s. ; the plaintiff told his attor- ney to write and demand the money, and threaten proceedings. The de- fendant in reply wrote to the attorney denouncing the proceeding as a "miserable attempt at imposition," and proceeded to discuss the plaintiff's " transactions in matters generally," asserting that "his disgusting tricks ILLUSTRATIONS DIGEST OF ENGLISH OASES. 417 are looked upon by all respectable men with SGorn." Williamg, J., ruled that the letter was not privileged, and the court of coTOmon pleas up- held this ruling. Damages one farthing. The jury expressly found that there was no malice, but the judge certified for costs on the express ground that there was. Huntley v. Ward, 1 F. & F., 553; 6 C. B. (N. S.), 514; 6 Jur. (N. S.), 18. 42. An insurance company may inform a ship-owner that they must re- fuse to insure his vessel any longer if he put a particular master in com- mand of her. Hamon v. Falle, 4 App. Cas., 247; 48 L. J., P. C, 45. 43. Defendant claimed rent of plaintiflf ; plaintiflE's agent told defendant that plaintiff denied his liability ; defendant thereupon wrote to the agent, alleging facts in support of his claim, and adding, " This attempt to de- fraud me of the produce of the land is as mean as it is dishonest." Held, that the publication, in these terms, was not privileged, for one can claim a, debt without imputing fraud, and that the judge was justified in direct- ing the jury that it was libel. Tuson v. Evans, 12 A. & E., 733. 44. Several fictitious orders for goods had been sent in the defendant's name to a tradesman, who thereupon delivered the goods to the defendant. The defendant returned the goods, and, being shown the letters ordering them, wrote to the tradesman that in his opinion the letters were in the plaintiff's handwriting. Held, that this expression of opinion was privi- leged, as both defendant and the tradesman were interested in discovering the culprit. Croft v. Stevens, 7 H. & N., 570; 31 L. J., Ex., 143; 10 W. R., 372; 5L. T., 683. 45. A prominent member of the church of St. Barnabas, Fimlico, went to stay in the vacation at Stockcross, in Berkshire, and so conducted him- self there as to gravely offend the parishioners. Letters passing between the curate of St. Barnabas and the incumbent of Stockcross relative to the charges of misconduct brought against the plaintiff were held privileged, as both were interested in getting at the truth of the matter. Whiteley v. Adaois, 15 C. B. (N. S.), 893; 33 L. J., C. P., 89; 10 Jur. (N. S.), 470; 13 W. E., 153; 9L. T., 488. 46. The defendant had a dispute with the Newry Mineral Water Com- pany, which they agreed to refer to " some respectable printer, who should be indiffei-ent between the parties," as arbitrator. The manager of the company nominated the plaintiff, a printer's commercial traveler. The defendant declined to accept him as an arbitrator, and when pressed for his reason wrote a letter to the manager stating that the plaintiff had for- merly been in the defendant's employment and had been dismissed for drunkenness. The plaintiff thereupon brought an action on the letter as a libel concerning him in the way of his trade. Held, that the letter was privileged, as both parties were interested in the selection of a proper arbi- trator. Hobbs V. Bryers, 2 L. R., Ir., 496. 47. Defendant was a haberdasher. On a Saturday evening while lie was absent Mrs. Fowler came into his shop and bought some goods. Soon after she was gone his shopman missed a roll of ribbon and mistakenly supposed that she had stolen it, but did not then pursue her. On the following Mon- day as she was again passing the shop the shopman pointed her out to the defendant as the person who had stolen the ribbon. The defendant brought 27 418 PKIVILEGEb COMMUNICATIOllfS. her into the shop and accused her of the robbery, which she positively de- nied. He then took her into an adjoining room and sent for her father, to -wbora he repeated the accusation. After a good deal of altercation she was allowed to go home, and there the matter rested.' Lord EUenborough decided that no action lay. Fowler et ux. v. Homer, 3 Camp., 294. 48. Mensel sent his servant, the plaintiff, to the defendant's shop on busi- ness; while there the plaintiff had occasion to go into an inner room. Shortly after he left a box was missed from that inner room. No one else had been in the room except the plaintiff. The defendant thereupon went round to Mr. Mensel's, and, calling him aside into a private room, told him what had happened, adding that the plaintiff must have taken the box. Later on the plaintiff came to the defendant's house, and the defendant repeated the accusation to him ; but, an English girl being present, defend- ant was careful to speak in German. Both communications were held priv- ileged, if made without actual malice and in the bona fide belief of their truth. Aman v. Damm, 8 C. B. (N. S.), 597: 29 L. J., C. P., 313; 7 Jur. (N. S.), 47; 8W. R., 470. 49. Defendant charged the plaintiff, his porter, with stealing his bed- ticks, and with plaintiff's permission subsequently searched Jhis house, but found no stolen property. The jury found that defendant bona fide believed that a robbery had been committed by the plaintiff, and made the charge with a view to investigation, but added, " The defendant ought not to have said what he could not prove." Held, that this finding was immaterial, that the occasion was privileged, and that there was no evidence of malice. Judgment for the defendant. Howe v. Jones, 1 Times L. R., 19, 461; Fow- ler et ux. V. Homer, 3 Camp., 294. Peivilegei> Occasions. § 15. The Subject Classified.— The occasion upon which privileged communications are made may be classified as those absolutely privileged and those in which the privilege is qual- ified. § 16. First, Absolute Privilege.— In this class of cases it is considered in the interest of public welfare that all persons should be allowed to express their sentiments and speak their minds fully and fearlessly upon all questions and subjects; and all actions for words so spoken are absolutely forbidden, even if it be alleged and proved that the words were spoken falsely, knowingly and with express malice. This rule is, however, confined to cases in which the public service or the adminis- tration of justice requires complete immunity — for example, words spoken in legislative bodies, in debates, etc.; in reports of military officers on military matters to their superiors ; words spoken by a judge on the bench and bv witnesses on the stand. PRIVILEGED OCCASIONS — EULES. il!) In all such cases the privilege afforded by the occasion is in law an absolute bar to any action for defamation. In these cases the plaintiff cannot be heard to say that the defendant did not act under the privilege, that he did not intend honestly to discharge a duty, but maliciously availed himself of the oc- casion to injure his reputation.^ § 17. The Rule Foundetl on Public Policy — Pieott, C. B.— " I take this to be a rule of law not founded, as is the protec- tion in other cases of privileged statements, on the absence of malice in the party sued, but founded on public policy, which requires that a judge, in dealing with the matter before him, a party in preferring or resisting a legal proceeding, and a witness in giving evidence, oral or written, in a court of jus- tice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel." ^ § 18. The General Rule. — Defamatory words spoken by the parties to judicial proceedings, their counsel or attorneys, or by jurors or witnesses in the course of judicial proceedings, are privileged when they are material and pertinent to the issue.' But when not material or pertinent to the issue they are not privileged, and an action will lie upon them.* § 19. A Further Classification. — These cases are fortunately not numerous, and the courts refuse to extend their number. They are divided into three classes : (1) Proceedings of legis- 1 Stevens v. Sampson, 5 Ex. D., 53; Cal., 634; Rector v. Smith, 11 Iowa, L. J., Q, B., 120; 28 W. R., 87; 41 L. 302; Shelfer v. Gooding, 2 Jones, 175; J ^ 783. Hoar v. Wood, 44 Mass. (3 Met.), 193 ; 2 Kennedy v. Hilliard, 10 Ir. C. L., White v. Nicholls, 44 U. S. (3 How.), Rep., 209; Munster v. Lamb (C. A.), 366; Randall v. Brigham, 74 U. S. 11 Q. B. D., 604, 605. (7 Wall.), 523; Rex v. Skinner, Lofft, 3 Ring V. Wheeler, 7 Cow. (N. Y.), 55; Scott v. Stansfield, L. R., 3 Exch., 735 ; Marsh v. EUs worth, 36 How. Pr., 220 ; Seaman v. Netherclift, 34 L. T. 332; 50 N. Y., 309; Hastings v. Luck, (N. S.), 878. 23 Wend., 410; Garr v. Selden, 4 « Gilbert v. People, 1 Den., 41; N. Y., 91 ; White v. Carroll, 43 N. Y,, White v. Carroll, 43 N. Y., 161 ; Wy- 161; 1 Am. Rep., 503: Spooney v. att v. Buell, 47 Cal., 625; Kean v. Keeler, 51 N. Y., 537 ; Ayles worth v. McLaughlin, 2 Serg. & R., 469 ; Smith St. Johns, 35 Hun, 156; Lamson v. v. Howard, 38 Iowa, 51; Ruohs v. Hicks, 38 Ala., 279; Jennings v. Backer, 6 Heisk. (Tenn.), 395 ; 19 Am. Paine, 4 Wis., 358; Calkins V. Sum- Rep., 598; Hooper v. Truscott, 2 mer, 13 Wis., 193; Dunham v. Pow- Bing. N. C, 457; Pow^l v, Plunket, ers, 43 Vt., 1; Wyatt v. Buell, 47 Cro. Car., 53. 420 PEIVILEGED COMMUNICATIONS. lative bodies; (2) Judicial proceedings; and (3) Military and naval officers. § 20. First Class — Communications in the Course pf Leg- islative Proceedings — The Doctrine Discussed.— It is in our countr3'- a great principle of constitutional law, and one which prevails in favor of the members of every legislative as- sembly in the United States, that " for any speech or debate in either house members shall not be questioned in any other place." This privilege, though of a personal nature, is not so much intended to protect the members against prosecutions for their own individual advantage as to support the rights of the people by enabling their representatives to execute the functions of their office without fear of civil or criminal pros- ecution; and therefore it ought not to be construed strictly and confined within the literal meaning of the words in which it is expressed, but to receive a liberal and broad con- struction, commensurate with the design for which it is estab- lished. It is accordingly held that the privilege secures to every member an immunity from prosecution for anything said or done by him as a representative of the people in the exercise of the functions of the office — whether such exercise is regular according to the rules of the assembly, or irregular and against their rules ; whether the member is in his place within the house delivering an opinion, uttering a speech, en- gaging in debate, giving his vote, making a written report, communicating information either to the house or to a mem- ber; or whether he is out of the house, sitting in committee, and engaged in debating or voting therein, or in drawing up a report to be submitted to the assembly. In short, that the privilege in question secures the members of a legislative as- sembly against all prosecutions, whether civil or criminal, on account of anything said or done by them, during the session, resulting from the nature and in the execution of their office.' § 21. The Legislative Body Must be in Session. — But a legislative assembly has no existence or authority as such ex- cept when regularly in session. The members cannot claim this privilege for anything said or done at any other time. It is 1 Story, Oomm. on Constitution, May's Law and Practice of Parlia- § 866; Cushing's Law and Practice ment, ch. IV, p. 96; Coffin v. Coffin, of Legislative Assemblies, § 603; 4 Mass., 1; Cooley, Const. Lim., 551. THE LAW IN ENGLAND. 421 to be observed, however, that mere temporary adjournments, for the convenience of the members and not for the purpose of putting an end to the session, are in fact continuations and not terminations of it.' Taking care not to say anything dis- respectful to the house, a member may state whatever he thinks fit in debate, however offensive it may be to the feel- ings or injurious to the character of individuals, and he is pro- tected by his privilege from any action for defamation as well as from any other question or molestation. § 22. The Law in England.— No member of either house of parliament is in any way responsible in a court of justice for anj'thing said in the hoijse.^ And no indictment will lie for an alleged conspiracy by members of either house to make speeches defamatory of the plaintiff.' But this privilege does not extend outside the walls of the house. Hence at common law, even if the whole house ordered the publication of parliament- ary reports and papers, no privilege attached.^ But now ^ all. reports, papers, votes and proceedings ordered to be published by either house of parliament are made absolutely privileged, and all proceedings at law, civil or criminal, will be stayed at once on the production of a certificate that they were pub- lished by order of either house. A petition to parliament is absolutely privileged, although it contain false and defamatory statements.^ So is a petition to a committee of either house.' But a publication of such a petition to others, not members of the house, is of course not privileged.' § 23. Illustrations — American Cases. — 1. A Massachusetts Case: Coffin v. Coffin, 4 Mass., 1. William Coflan, the plaintiff, applied to one Benjamin Russell, a member of the Massachusetts legislature, to move a resolution in the house author- 1 Cushing's Parliamentary Law, & Rob., 9 ; 7 C. & P., 731 ; 9 A. & E., § 603 ; Coffin V. Coffin, 4 Mass., 1. 1-243; 2 P. & D., 1 ; 3 Jur., 905; 8 " 2 Bill of Rights, 1 Will. & Marj', Dowl., 148, 522. Stat. 2, ch. 3. ^By Stat. 3 and 4 Vict., oh. 9; 3 Ex parte Wason, L. R., 4 Q. B., Stockdale v. Hansard (1840), 11 A. 573; 38 L. J., Q. B., 302; 40 L. J. & E.. 253. 397. (M. C), 168; 17 W. R., 881. ^Lake v. King, 1 Saund., 131; 1 *R. V. Williams, 2 Shower, 471; Lev.. 240; IMod., 5«; Sid., 414. Comb., 18 (see comments on this i See Kane v. Mulvany, Ir. E., 3 case in R. v. Wright, 8 T. R., 293); C. L., 402. Stockdale v. Hansard (1839), 2 Moo. 8 Odgers on L. & S., 186. 422 PEIVILEGED COMMUNIOATIONS. izing the appointment of an additional notary public for Nantucket. Rus- sell asked and obtained leave to lay a resolution on the table for that purpose. Micajah Coffin, the defendant, also a member of the legislature, arose in his seat and asked Russell where he obtained his information of the facts upon which the proposed resolution was founded. To which Russell replied, •' From a respectable gentleman from Nantucket." The resolution passed and other business was taken up, when the defendant crossed the house to where Russell was talking with some gentlemen, in the passage-way, within the walls of the house, and asked him who the respect- able gentleman was from whom he had obtained the information which he had communicated to the house. Russell observed, carelessly, it was per- haps one of iis relations, and named Coffin, as very many of the Nan- tucket people were of that name. On perceiving the plaintiff sitting without the bar, behind the speaker's chair, Russell pointed to him, and told the de- fendant that was the gentleman from whom he received the information. The defendant looked at him and said, "What, that convict? " Russell then asked the defendant what he meant. He replied : " Don't thee know the business of the Nantucket bank? " Russell replied: "Yes; but he was honorably acquitted." The defendaht then said: "That does not make him the less guilty, thee knows." It appears that the conversation took place a little before one o'clock; that the election of notaries was not then before the house but 807; Trotman 353; M'MiUan v. Birch, 1 Binney, V. Dunn, 4 Campbell, 411; Hodgson 178; Gilbert v. The People, 1 Denio, V. Scarlett, 1 Barnewall & Alderson, 41 ; CoflSn v. Coffin, 4 Massachusetts, 232; S. C. at Nisi Prius, Holt, 631, 1; Commonwealth v. Blanding, S and notes; Flint v. Pike, 4 Barnewall Pickering, 814; Spaids v. Barrett, 57 & CressweU, 473 ; 6 Dowling & Ey- 111., 289; Rice v. Coolidge, 121 Mass., land, 528; Jekyll v. Moore, 2 New 893. Reports, 341 ; Wilson v. Collins, 5 Car- 2 McLaughlin v. Cowley, 127 Mass., rington & Payne, 373; Home v, Ben- 316; Rice v. Coolidge, 121 Mass., 398, EXTENT OF 1«EIVILKGE, ETC. 425 trate, and may constitute a part of that comment upon the evidence, which has a bearing on the result.' § 29. Extent of the Privilege.— This privilege extends not only to parties, counsel, witnesses, jurors and judges- in a judi- cial proceeding, but also to proceedings in legislative bodies, and to all who, in the discharge of public duty or the honest pursuit of private right, are compelled to take part in the ad- ministration of justice or in legislation.^ § 30. The Privilege is Limited, and that limit is this: That a party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness or third person, which have no relation to the cause or subject-matter of the inquiry. Subject to this restriction, it is en the whole for the public interest, and best calculated to subserve the purposes of justice, to al- low counsel full freedom of speech in conducting the causes and advocating and sustaining the rights of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions.' § 31. No Action Lies for Defamatory Statements Made in the Course of Judicial Proceedings. — No action will lie for defamatory statements made or sworn in the course of a judicial proceeding before any court of competent jurisdiction. Every- thing that a judge savs on the bench, a witness while on the stand, counsel in arguing a client's cause, or a juror to his fellow-jurors while in the jury-room considering a case, is abso- lutely privileged so long as it is in any way connected with the inquiry. So are all documents necessary to the conduct of the cause, such as pleadings, affidavits and instructions to counsel, This immunity rests on obvious grounds of public policy and convenience.^ § 32. Judges of Courts. — The judge of a court has an abso- lute immunity, and no action can be maintained against him, even though it be alleged that he spoke maliciously, knowing iHoar V. Wood, 44 Mass., 193; Mass., 193; McLaughlin v. Cowley, McLaughlin v. Cowley, 137 Mass., 137 Mass., 316. 316; Hart v. Baxter, 47 Mich., 198; a Hoar v. Wood, 44 Mass., 193; ION. W. Rep., 198. McLaughlin v. Cowley, 137 Mass., 2 Hart V. Baxter, 47 Mich., 198; 10 316. N. W. Rep., 198; Hoar v. Wood, 44 ■'Flood on L. & S., 156. 426 PEIVILEGED COMMUNICATIONS. his words to be false, and also that bis words were irrelevant to the matter in issue before him and wholly unwarranted by the evidence. It is essential to the highest interests of public policy to secure the free and fearless discharge of high judicial functions.^ The judge of an inferior court enjoys the same immunity in this respect as the judge of a superior court so long as he has jurisdiction over the matter before him. For any act done in any proceeding in which he either knows or ought to know- that he is without jurisdiction, he is liable as an ordinary citi- zen,^ And so he would be for words spoken after the business of the court is over.' A justice of the peace enjoys an equal immunity. An action will lie against him for defamatory words spoken maliciously and without reasonable or probable cause if they do not arise out of any matter properly before him.* But if the conduct of the plaintiff be a matter in any way relevant to the inquiry, and the proceedings are within the jurisdiction of the magistrate, he may express his opinion of such conduct with the utmost freedom, and no action will lie.* § 33. Illustrations — Digest of American Cases. — 1. Whatever is said or written in a legal proceeding pertinent or material to the matter in controversy is privileged and no action can be maintained upon it. Story v. Wallace, 60 111., 51; Spaids v. Barrett, 57 111., 289. 2. No proceeding according to the regular course of justice will make ^ complaint or other proceeding amount to a libel for which an action can be maintained ; and a distress warrant is a proceediug given to the party by law for the purpose of enforcing a legal right, and comes directly within the reason of the rule. Bailey v. Dean, 5 Barb., 297. 3. Words spoken or written in a legal proceeding pertinent and material to the controversy are privileged, and the proof of the statement cannot be drawn in question in an action for slander or libel. Garr v. Selden, 4 N. Y. (4 Comst.), 91 ; Bailey v. Dean, 5 Barb. (N. Y.), 297; Marsh v. Ellsworth, 36 How. (N. Y.) Pr., 532; Vausse v. Lee, 1 Hill (S. C), 197; Lea v. White, 4 Sneed(Tenn.), 111. 4. Where the defense to an action of libel is that the words charged were used in the course of a judicial proceeding, and therefore privileged, the 1 Floyd V. Barker, 12 Rep., 34; sparis v. Levy, 9 0. B. (N. S.), 343; Flood on L. & S., 158; Scott v. Stans- 30 L. J., C. P., 33; 7 Jur. (N. S.), 289; field, L. E., 3 Ex., 320; 37 L. J. Ex., 9 W. R., 71; 3 L. T., 334. 155; McLaughlin v. Coolidge, 127 ^Kirby v. Simpson, 10 Exch., 358; Mass., 316. Gelen v. Hall, 2 H. & N., 379. 2Houlden v. Smith, 14 Q. B., 841; sQdgers on L. & S., 188. Calder v. Halket, 8 Moo. P. C. C, 28. ATTORNEYS AND COUNSELORS AT LAW. 427 question is whether or not the words alleged were pertinent and relevant to the matter before the court. Warner v. Paine, 3 Sandf. (N. Y.), 195. § 34. Digest of English Cases.— 1. A county court judge, while sitting in court and trying an action in which the plaintiff was defendant, said to him: " You are a harpy, prey- ing on the vitals of the poor." The plaintiff was an accountant and scriv- ener. Held, that no action lay for words so spoken by the defendant in his capacity as county court judge, although tliey were alleged to have been spoken- falsely and maliciously, and without any reasonable or proba- ble cause or any foundation whatever, and to have been wholly irrelevant to the case before him. Ssott v. Stansfleld, L. R., 3 E.^., 230; 37 L. J., Ex., 155; 16 W. R., 911 ; 18 L. T., 572. 2. No action lies against a coroner for anything he says in his address to the jury impaneled before him, however defamatory, false or malicious it may be, unless the plaintiff can prove that the statement was wholly irrel- evant to the inquisition and not warranted by the occasion, the coroner's court being " a court of record of very high authority." Thomas v. Chur- ton, 2 B. & a, 475; 31 L. J., Q. B., 139; 8 Jur. (N. S.), 795; Yates v. Lansing, 5 Johns., 283: 9 Johns., 395. 3. A chairman of quarter sessions may denounce the grand jury as a " seditious, scandalous, corrupt and perjured jury.'' R. v. Skinner, Lofft, 55. 4. The judgment of a court-martial containing defamatory matter is ab- solutely privileged, though it is not a court of record. Jekyll v. Sir John Moore, 2 B. &P., N. E., 341; 6 Esp., 63; Home v. Bentinck, 3 B. & B., 130; 4 Moore, 563; Oliver v. Bentinck, 3 Taunt., 456. 5. A magistrate commented severely on the conduct of a policeman which came under his judicial notice, and in consequence the policeman was dismissed from the force. Held, that no action lay. Kendillon v. Maltby, 3 M. & Rob., 438; Car. & Mar., 403 ; AUardice v. Robertson, 1 Dow GST. S.), 514; 1 Dow & Clark, 495; 6 Shaw & Dun., 343; 7 Shaw & Dun., 691; 4 Wil. & Shaw, App. Cas., 102. But a magistrate's clerk has no right to make any observation on the conduct of the parties before the court ; and no such observation will be privileged. Delegal v. Highley, 3 Bing. N. C, 950; 5 Scott, 154; 3 Hodges, 158; 8 C. & P., 444. 6. No action will lie against a judge of one of the superior courts for any judicial act, though it be alleged to have been done maliciously and cor- ruptly. Fray v. Blackburn, 3 B. & S., 576; Floyd v. Barker, 12 Rep., 34; Groenvelt v. Burwell, 1 Ld. Raym., 404, 468; 13 Mod., 388; Dicas v. Lord Brougham, 6 C. & P., 349; 1 M. & R., 309; Taaffe v. Downes, 3 Moo. P. C. C, 36, n.; Kemp v. Neville, 10 C. B. (N. S.), 523; 31 L. J., C. P., 158; 4 L. T., 640. 7. No action lies against a judge for unjustly censuring and denouncing a counsel then engaged in the cause before him, even although it be alleged that it was done from motives of private malice. Miller v. Hope, 3 Shaw, Sc. App. Cas., 135. § 36. Attorneys and Counselors at Law.— ISo action will lie against an attorney for defamatory words spoken as coun- sel in the course of any judicial proceeding with reference 4:28 PRIVILEGED COMMUNICATIONS. thereto, even though they were unnecessary to support the case of his client, and were uttered without any justification or excuse and from personal ill-will or anger towards the plaintiff arising from some previously existing cause, and are irrelevant to every question of fact which is in issue before the tribunal.' The foregoing, undoubtedly, is a correct state- ment of the state of the law in England. It may be doubted if the American doctrine can be carried to such extreme limits. The decision cited gives to an advocate the same absolute immunity as is enjoyed by an English judge of a superior court. The previous cases had not gone so far. In Brook v. Sir Henry Montague, decided in 1606,^ the court decided that "counsel in law retained hath a privilege to enforce anything which is informed him by his client and to give it in evidence, being "pertinent to the matter in question, and not to examine whether it be true or false; but it is at the peril of him who informs him." But in another case Glyn, C. J., says: "It is the duty of a counselor to speak for his client, and it shall be intended to be spoken according to his client's instructions." " And Bayley, J., says: " The law presumes that he acts in dis- charge of his duty and in pursuance of his instructions." * And in Butt, Q. C, v. Jackson,' the court expressly decided that instructions to counsel are not the test by which to try whether or not the line of duty has been passed. Hence the ' words are still absolutely privileged, although counsel may have exceeded his instructions.* But the recent decision of the court of appeal removes all limitations whatever on the absolute privilege of an advocate for all words uttered in the course of his duty in the English courts. The rule is made so wide not to protect counsel who deliberately and maliciously slander others, but in order that innocent counsel who act ionafide may not be " unrighteously harassed with suits." * 1 Munster v. Lamb (C. A.), U Q. B. Holt, N. P., 631 ; Needham v. Dowl- D., 588; 53 L. J., Q. B., 736; 33 W. ing, 15 L. J., C. P., 9; R. pros. Arm- E., 243; 49 L. T., 258; 47 J. P., 805. strong, Q. C, v. Kiernan, 7 Cox, C. 2 Brook V. Montague, Cro. Jac, 90. C, 6; 5 tr. C. L. R., 171, and Taylor « Wood V. Gunston, Stylos, 463. v. Swinton (1834), 3 Shaw's Scotch < Flint V. Pike, 4 B. & C, 473. App. Cas., 245. 6 10 Ir. L R., 120. See, also, Hodg- « Brett, M. R., 11 Q. B. D., 604. son V. Scarlett, 1 B. & Aid., 233; PRIVILEGE- OF COUNSEL — DISCUSSION OF THE SUBJECT. 429 § 36. PriYilege of Counsel — Discussion of the Subject.— Several cases in which the question of absolute and qualitied privilege attaching to communications in the course of judicial proceedings were recently before the Marj^and court of ap- peals for decision. In one of these cases the declaration alleged the speaking by the defendant, as counsel for Byers and wife in a suit against them by the plaintiff to recover money alleged to be due him as attorney fees, of the following words: "He, as attorney for Mrs. Byei-s, collected for her five thousand dol- lars of her money, and refused to account to her for it, and kept it, and still has it, and refused to pay it over to her; and I am determined to rip up and expose the whole disgraceful transaction." The majority of the court held that, in order to come within the limit of thq absolute privilege, the words spoken must have reference to the subject-matter of the cause on trial. From this opinion McSherry, J., dissented, writing for the absolute privilege, no matter whether the words re- lated to the subject-matter of the suit or not. As the opinions involve the question under discussion, both are here given: For LiiMiTiNG the Privilege to Words HAvrsa Reference to the Subject-matter of the Litigation. Robinson, J. This is a suit against an attorney at law for slander. The defendant pleads in bar of the action that the alleged defamatory words set out in the declaration were spoken by him in his capacity as counsel in the trial of a cause in a court of justice. To this the plaintiff replied that the words thus spoken were not spoken in reference to said cause, and " had no reference to said action, or to any subject-matter involved in said action, or to any judicial inquiry which was going on or being had in said action." To this replication the defendant demurred, and in sustaining the demurrer the court decided, as matter of law, that if the defamatory words were spoken by the defendant as counsel in the trial of a cause in a court of jus- tice, the action could not be maintained, even though the plaintiff should prove that the words thus spoken were false, and were known to be false by the defendant, and even though they were spoken maliciously, and even though they had no reference to said cause, or to any subject-matter, or to any judicial inquiry involved in said action. In other words, the court de- cided that the privilege of counsel in the trial of a cause is an absolute and unqualified privilege ; and although he is subject to the authority of the court for the abuse of this privilege, and may be punished for misbehavior or misconduct, he cannot be held liable in an action of slander brought by the person injured. The question, which is thus presented for the first time for the decision of the court, is one of great importance, involving on the one hand the rights 430 PBIVILKGED COMMUNICATIONS. and privileges of counsel in the trial of causes in the discharge of a profes- sional duty, and on the other the rights of the citizen whose character may- have been maliciously and wantonly assailed. The case has been very fully and ably argued on both sides, and reference has been made to nearly all the decisions, both in England and in this country, on the subject. All agree that counsel are privileged and protected, to a certain extent at least, for defamatory words spoken in a judicial proceeding; and words thus spoken are not actionable which would in themselves be actionable if spoken elsewhere. He is obliged, in the discharge of a professional duty, to prosecute and defend the most important rights and interests, the life it may be, or the liberty or the property of his client ; and it is absolutely es- sential to the administration of justice that he should be allowed the widest latitude in commenting on the character, the conduct and the motives of parties and witnesses and other persons directly or remotely connected with the subject-matter in litigation. And to subject him to actions of slander by every one who may consider himself aggrieved, and to the costs and ex- penses of a harassing litigation, would be to fetter and restrain him in that open and fearless discharge of duty which he owes to his client, and which the demands of justice require. Not that the law means to say that one, because he is counsel in the trial of a cause, has the right, abstractly con- sidered, deliberately and maliciously to slander another; but it is the fear that if the rule were otherwise actions without number might be brought against counsel who had not spoken falsely and maliciously. It is better, therefore, to make the rule of law so large that counsel acting bona fide in the discharge of duty shall never be troubled, although, by making it so large, others who have acted mala fide and maliciously are included. The qiies- tion whether words spoken by counsel were spoken maliciously or in good faith are, and always will be, open questions, upon which opinion may differ, and counsel, however innocent, would be liable, if not to judgments, to a vexatious and expensive litigation. The privilege thus recognized by law is not the privilege merely of counsel, but the privilege of clients, and the evil, if any, resulting from it must be endured f oi' the sake of the great good which is thereby secured. But this privilege is not an absolute and unqualified privilege, and cannot be extended beyond the reason and prin- ciples on which it is founded. The question, then, is. What is the extent and limit to this privilege? ' This can best be answered by a consideration of the cases in which it has been determined. In the earliest of the leading cases on the subject (Brook v. Montague, Cro. Jac, 90, decided in 1605, and argued by Lord Coke and Yelverton), it was lield that this privilege protected counsel, provided the slanderous words spoken were relevant or pertinent to the matter. "But matter," said Popham, J., " not pertinent to the issue or matter in question he need not deliver, for he is to discern in his discretion what he is to deliver and what not ; and although it be false he is excusable, being pertinent to the matter." Subsequently, in the noted case of Hodgson v. Scarlett (afterr wards Lord Abinger), 1 Barn. & Aid., 232, the rule laid down in Brook v. Montague was expressly recognized and approved. This case was elabo- rately argued, and was decided after full consideration, each of the judges delivering his own views. Lord EUenborough, while admitting that the PKIVILEGE OF COUNSEL DISCUSSION OF THE SUBJECT. 431 language used by the defendant was too strong, and too much to say as between man and man, yet held that the action could not be maintained because the words spoken were pertinent to the issue. Justice Bayley said : "The rule seems to be correctly laid down in Brook v. Montague that a counselor hath a privilege to enforce anything which is informed unto him for his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false. No mischief will ensue in allowing the privilege to that extent." Mr. Justice Abbott: "The words were spoken in a course of judicial inquiry, and were relevant to the matter in issue. It would be impossible that justice could be well admin- istered if counsel were to be questioned for the too great strength of their expressions.'' Mr. Justice Holroyd, after referring to Buckley v. Wood, 4 Cbke, 14, and Cutler v. Dixon, id., says: "These cases show the privilege possessed by parties themselves ; and from these authorities it appears that no action is maintainable against the party, nor, consequently, against coun- sel, who is in a similar situation, for words spoken in the course of justice, if they be fai^: comments upon the evidence, and be relevant to the matter in issue." Again, in Mackay v. Ford, 5 Hurl. & N., 790, Pollock, C. B., re- ferring to the slanderous matter complained of, said : " The question is. Was it relevant? I think it was, because it was pertinent to the question whether the agreement had been fully determined. The words were used by the defendant in the character of counsel in a court of justice, and, being relevant to the matter in hand, the speaking of them was justifiable." Bramwell, J. : " The words spoken having been pertinent to the question, the rule must be absolute to enter a nonsuit." Channell, B. : " The words in question were spoken in the course of a judicial proceeding in which they were not irrelevant." It thus appears that from the decision in Brook v. Montague, in 1605, to Mackay v. Ford, decided in 1860, a period of more than two hundred and fifty years, relevancy of the words spoken was considered essential to justify the privilege. And so the law was un- derstood by all the most eminent commentators on the subject. Black- stone says : "A counselor is not answerable for any matter spoken relative to the cause in hand. . . . If it be impertinent to the cause in hand he is then liable to an action from the party injured." In Folk. Starkie, Sland. (4th Eng. ed.), § 363, and Add. Torts (ed. 1870), p. 934, note to, the privilege of counsel is limited expressly to words relative to the inquiry. We come now to Munster v. Lamb, 11 Q. B. Div., 588, decided in 1883, which is relied on in support of the ruling below. In that case it was held that no action will lie against counsel for slanderous words spoken with reference to and in the course of an inquiry before a judicial tribunal, al- though they were uttered maliciously and without any justification or even excuse, and from personal ill-will towards the person slandered arising out of a previously existing cause, and are irrelevant to every issue of fact con- tested before the court. Brett, master of the rolls, said : " For the purpose of my judgment I shall assume that the words complained of were uttered by the solicitor maliciously ; that is to say, not with the object of doing something useful towards the defense of his client. I shall assume that the words were uttered without any justification or even excuse, and from the indh-ect motive of personal ill-will or anger towards the prosecutor, arising 432 PEIVILEGED COMMUNICATIONS. out of some previously existing cause ; and I shall assume that the words were irrelevant to every issue of fact which was contested in the court where they were uttered. Nevertheless, inasmuch as the words were uttered with reference to and in the course of the judicial inquiry which was going on, no aotion will lieagainst the defendant, however improper his behavior may have been. The rule is founded upon public policy. With regard to counsel the question of malice, bona fides and relevancy cannot be raised. The only question is whether what is complained of has been said in the course of the administration of the law. If that be so the case against counsel must be stopped at once. No action of any kind, no criminal pros- ecution, can be maintained against a defendant when it is established that the words complained of were uttered by him as counsel in the course of a judicial inquiry." Fry, |L. J., was of the same opinion. A judgment thus deliberately rendered by judges so eminent is entitled, of course, to the highest consideration ; but with deference we must say that the absolute and unqualified privilege as thus laid down is not in our opinion supported by Eevis v. Smith, Henderson v. Broomhead, Dawkins v. Rokeby or Sea- man v. Netherclift, the cases relied on by the court; nor can it be sustained by any sound principle of public policy. Now, in Revis v. Smith, 18 C. B., 135, the count in the declaration was not for libel, but for maliciously and without reasonable and probable cause making a false affidavit in a cause pending in chancery, containing injurious representations against the plaintiff as an auctioneer, by means of which the court declined to appoint him as auctioneer to sell certain real estate. Mr. Justice Cresswell rested his judgment on the ground that the action was without precedent, and that it would be highly inconsistent to hold a witness liable where he gave evi- dence relevant to the cause. Mr. Justice Crowder treated the case as an attempt to introduce an entirely new form of action — in substance an action for defamation against a witness for giving evidence to the best of his be- lief in a court of justice. Mr. Justice Willes said: "I apprehend the law to be that, however harsh or hasty, or even untrue, may be the conduct of a person speaking on a privileged occasion, if he honestly and bona fide be- lieves what he utters to be true no action will lie." Lord Chief Justice Jer vis was of the opinion that the action was a novel one, and without prece- dent to sustain it, and indorsed fully the law of privilege as laid down by Holroyd, J., in Hodgson v. Scarlett. Now, in Henderson v. Broomhead, 4 Hurl. & N., 567, the court decided that an action would not lie against a party who, in a cause peading in court, makes affidavit in support of a summons taken out in such cause, which is scandalous, false and malicious, and though the person slandered was not a party to the cause. But there the scandalous matter was pertinent to the subject-matter before the court. Erie, J., said: "I do not assent to the proposition that the matters which form the subject of this charge were irrelevant. I can easily see how they might be relevant." Crompton and Crowder, JJ., state broadly, it is true, that no action will lie for words spoken or written in the course of any judicial proceeding; but it must be borne in mind they were speaking in reference to defamatory words which, in the opinion of all the judges were relevant to the then pending litigation. We come then to Dawkins v. Rokeby, L. R., 7 H. L., 752, about which PRIVILEGE OF COUNSEL DISCUSSION .OF THE SUBJECT. 433 BO much has been said. There the defendant, a military man, was sued for slanderous words spoken and written by him as a witness before a mili- tary court. The case was tried before Mr. Justice Blackburn, who lield that inasmucli as the verbal and written statements were made by the de- fendant, being a military man, in the course of a military inquiry in rela- tion to the conduct of the plaintiil, being a mihtary man, and with refer- ence to the subject of that inquiry, the action could -not be maintained, although the plaintiff should prove that the defendant had acted mala fide, and with actual malice, and with a knowledge that the statements so made by him were false. In other words, the defamatory words having been spoken and written by the defendant as a witness before a military court, and having reference to the subject-matter before that court, they were privileged, and whether they vrere spoken maliciously and falsely were questions altogether immaterial. Upon appeal to the house of lords Lord Chancellor Cairns said : " My lords, I think it is of great importance that your lordships should bear in mind these precise expressions v.'hich I have now read, because I feel sure that your lordships would not desire your de- cision upon the present occasion to go farther than the circumstances of this particular case would warrant. Now, my lords, adopting the expres- sions of the learned judges with regard to what I take to be settled law as to the protection of witnesses in judicial proceedings, I am certainly of opinion that upon all principles, and certainly upon all considerations of convenience and of public policy, the same protection which is extended to a witness in a judicial proceeding, who has been examined on oath, ought to be extended and must be extended to a military man who is called before a court of inquiry of this kind for the purpose of testifying there upon a matter of military discipline in connection with the army. It is not denied that the statements which he made— both those which were made mva voce and those which were made in writing — were relative to that inquiry." Now in this case the house of lords decided that a witness testifying be- fore a military court was entitled to the same privilege as a witness testifying in a judicial proceeding, and that no action would lie against the defendant because both what he said and what was written by hi ra had reference (" relative " is the term used) to the military discipline of the array, which was the matter of inquiry before the military court. The lord chancellor was careful to say that he did not desire the decision to go further than the circumstances of that particular case would warrant. The question was again very fully considered in Seaman v. Nethei-clift, 2 C. P. Div., 53, decided in 1876, one year after Dawkins v. Rokeby, in which all the judges delivered opinions seriatim. Cockburn, C. J., after stating in a general way that it was well settled that a witness was privi- leged to the extent of what he says in course of his examination, and that tWs privilege was not affected by the relevancy or irrelevancy of his testi- mony, qualifies the broad declaration thus made by him by saying that " if a man, when in the witness box, were to take advantage of his. posi- tion to utter something having no reference to the cause or matter of in- quiry in order to assail the character of another, as if he were aiked, ' Were you at York on a certain day?' and he were to answer 'Yes; and A. B, picked my pocket there,' it certainly might well be said in such a case 434 PEIVIX-BGED COMMUNICATIONS. that the statement was altogether dehors the character of witness, and not within the privilege." In that case, however, he said" the words spoken were relevant" Bramwell, J. A. : "The judgment of the common pleas a£Srmed two propositions: First, that what the defendant said was said as a witness, and was relevant to the inquiry before the magistrate; and, secondly, that being so, the lord chief justice should have stopped the trial of the action by nonsuiting the plaintiff. As to the first proposition, I am by no means sure that the word ' relevant ' is the best word that could be used. The phrases used by the lord chief baron and the lord chancellor in Dawkins v. Rokeby would seem preferable, having reference or made with reference to the inquiry. I can scarcely think a witness would be pro- tected for anything he might say in the witness box wantonly and with- out reference to the inquiry." Mr. Justice Amphlett considered there was but one question open for the decision of the court, and that was whether the answer was relevant, and, being of opinion that it was, the defendant was within the privilege. Now, in all these cases, the slanderous words spoken were relevant or had reference to the matter of inquiry before the court, and this being so, what was said ' by the several witnesses was ac- cording to all the authorities strictly within the well-recognized law of privilege. In all these cases the answers of the several witnesses had, in the opinion of the court, reference to the subject-matter of inquiry, and in neither of these cases was it decided that the privilege even of a witness was an absolute privilege, and that he could take advantage of his position to utter something, in the language of Oockburn, C. J., having no refer- ence to the cause or matter of inquiry in order to assail the character of another." We should not stop to consider the dictum of Lord Mansfield in Rex v. Skinner, decided in 1773, and only reported in Lofft, 55, but for the, fact that it is relied on by the court in Munster v. Lamb. In that case a motion was made to quash an indictment against a magistrate for slanderous words spoken to a grand jury at a general session of the county. The indictment was quashed on the ground that it would be subversive of the constitution to hold a judicial officer answerable, either civilly or criminally, for words spoken in office. Lord Mansfield is reported as saying in that case: " What Mr. Lucas, the defendant's counsel, has said is very just. Neither party, counsel nor judge, can be put to answer civilly or criminally for words . spoken in office." Now in Brook v. Montague the court after full argu- ment had expressly decided that counsel was protected, provided the words spoken were relevant or pertinent to the matter of inquiry, but that for words not pertinent he was liable. We can hardly suppose so eminent a judge as Lord Mansfield meant in this off-hand way to overrule or even ques- tion the law of privilege as laid down in that case ; and when speaking of counsel we must conclude he meant that they were not liable civilly or criminally for words spoken relevant to the subject-matter before the court. And besides, in the subsequent case of Hodgson v. Scarlett, in which the question of privilege of counsel was directly involved, and which was argued 'by distinguished counsel on both sides, this reported dictum of Lord Mans- field is neither referred to by counsel nor by either of the judges who de- livered opinions in that case. And all the judges held, relying upon the PKITILEGE OF COUNSEL — DISCUSSION OF THE SUBJECT. 435 decision in Brook v. Montague as authority, that the defendant was pro- tected because the words spoken by him were relevant and pertinent; and the same rule was again laid down in Mackay v. Ford. So if Lord Mans- field was correctly reported, this dictum was not understood as qualifying in any manner the well-settled law on the subject. Passing, then, from the English to the American decisions, we find that the highest courts in this country have uniformly held that the privilege of counsel is limited to words spoken which are pertinent or which have rela- tion to the matter of inquiry. In the early case of McMillan v. Birch, 1 Bin., 178, Chief Justice Tilghman, speaking of counsel and party, said: " If any man should abuse this privilege, and under pretense of pleading his cause wander designedly from the point in question, and maliciously heap slander upon his adversary, I will not say that ha is not responsible in an action at law." In Hoar v. Wood, 3 Mete, 193, Shaw, C. J., said: " Still this privilege must be restrained by some limit, and we consider that limit to be this : that a party or counsel shall not avail himself of his situ- ation to gratify private malice by uttering slanderous expressions, either against a party, vritness or third person, which have no relation to the cause or subject-matter of the inquiry." And in Hastings v. Lusk, 33 Wend., 410, Chancellor Walworth says: "Upon a full consideration of all the au- thorities on the subject, I think that the privilfege of counsel in advocating the causes of their clients, and of parties who are conducting their own causes, belongs to the same class where they have confined themselves to what was relevant and pertinent to the question before the court." We may also refer to the following cases, in which this privilege has been held to be a limited and not an unqualified privilege: Eing v. Wheeler, 7 Cow., 725; Shelfer v. Gooding, 2 Jones (N. C), 175; Jennings v. Paine, 4 Wis„ 373; Lea v. White, 4 Sneed, 111; Johnson v. Brown, 11 W. Va., 73; Stack- pole V. Hennen, 6 Mart. (N. S.). 481 ; McLaughlin v. Cowley, 137 Mass., 319; Mower V. Watson, 11 Vt., 536. In view, then, of this unbroken line of de- cisions both in England and in this country, we cannot accept the absolute and unqualified privilege laid down in Munstfer v. Lamb. It is in the teeth of the decisions in Brook v. Montague and Hodgson v. Scarlett, and Mackay V. Ford, and is not sustained by Revis ^. Smith, Henderson v. Broomhead, Dawkins v. Rokeby, or Seaman v. Netherclift. We cannot agree with Brett, M E., that in a suit against counsel for slander the only inquiry is whether the words were spoken in a judicial proceeding, and if so, the case must be stopped. We quite agree, however, with Bramwell, J., in Seaman v. Netherclift, that "relevant" and "pertinent" are not the best words that could be used. These words have in a measure a technical meaning, and we all know the difiiculty in determining in some cases whafis relevant or pertinent. With Loi:d Chancellor Cairnes we prefer the words "having reference," "or made with reference," or, in the language of Shaw, C. J., ■ " having relation to the cause or subject-matter." And if counsel, in the trial of a cause, maliciously slanders a party or witness or any other person in regard to a matter that has no reference or relation or connection with the case before the court, he is and ought to be answerable in an action by the party injured. This qualification of his privilege in no manner im- pairs the freedom of discussion so necessary to the proper administration of 436 PRIVILEGED COMMUNICATIONS. law, nor does it subject counsel to actions for slander except in cases in which, upon reason" and sound public policy, he ought to be held answer- able. We cannot agree that for the abuse of his privilege he is amenable only to the authority of the court. Mere punishment by the court is no recompense to one who has thus bfien maliciously and wantonly slan- dered. I We are of opinion, therefore, that the twelfth replication in this case, that the words spoken by the defendant were not spoken in reference to the cause then on trial, and had no reference to any subject-matter involved in said action or to any judicial inquiry which was going on or being had in said action, is a good replication, and the demurrer thereto ought to have been overruled. But as the demurrer filed by the plaintiff mounts up to the first error in pleading, we are also of opinion that this action cannot be maintained, because it appears upon the face of the declaration that the alleged defamatory words spoken by the defendant had reference to the subject-matter involved in the cause then on trial. The words were spoken by the defendant, as counsel for Byers and wife, in a suit against them by the plaintiff in this case to recover money alleged to be due to him for pro- fessional services. The words set out in the declaration are as follows: "He [meaning the plaintiff], as attorney for Mrs. Byers, collected for her five thousand dollars of her money, and refused to account to her, and kept it, and still has it, and refused to pay it over to her; and I am determined to rip up and expose the whole disgraceful transaction." Whether the de- fendants in that case could have offered evidence to prove these facts under the pleadings filed at that time we shall not stop to consider. Admit that such evidence would have been inadmissible, under thfe state of pleadings, yet the defendants had the right to annend their pleas at anytime before the jury retired to make up the verdict, and it is plain that under a plea of set-off such evidence would have been admissible. But, be that as it may, the plaintiff in that case, who is the plaintiff in this, was claiming' to re- cover money alleged to be due him by the defendants for professional services, and in such a case thie words alleged to have been spoken by the defendant in that case in his capacity as counsel, to the effect that plaintiff had in his possession money vvhich he had collected for and which belonged to the defencjants, had reference to the subject-matter of inquiry before the court ; and if they had reference'or relation to the case on trial, then they are strictly within the rule of privilege, and whether they were true or false, or whether they were spoken maliciously or in good faith, are ques- tions altogether immaterial — being privileged, no action will lie against the defendant. This being so, the evidence offered by the plaintiff for the purpose of proving them to be false, and that they were maliciously spoken, was inadmissible, and there was no error in the ruling of the court in this ■respect. And for the same reason the defendant's prayer, that there was no proof legally sufiicient upon which the jury could find a verdict for the plaintiff, was properly granted ; and although the court erred in sustaining the demurrer to the plaintiff's twelfth replication, yet, inasmuch as the words set out in the declaration were spoken by the defendant as counsel, and had reference to the subject-matter then before the court, this action cannot be maintained, and the judgment must therefore be aflarmed. privilege of counsel discussion of the subject. 437 Foe the Absolute Pkivilege. McSheeet, J. (disaenting). I am of the opinion that the judgment in this case ought to be affirmed ; but I base that conclusion upon the broad ground that the privilege pleaded by the appellee is an absolute and not a qualified one. If the question as to the character of the privilege be an open one in this state since the decision in Maurice v. Worden, 54 Md., 333, there is ample authority elsewhere to support either view that may be taken. But it seems to me that the cases which uphold the absolute privilege of an attor- ney are grounded upon correct principles, are supported by the most satis- factory reasoning, and are sustained by a sound and conservative public policy. Lord Mansfield observed, in Rex v. Skinner, LofEt, 56,. that " neither party, witness, counsel, jury nor judge can be put to answer civilly or crim- inally for words spoken in office." Some refined distinctions were subse- quently ingrafted on this doctrine, but they have been swept away ; and finally the courts of England have re-asserted and enforced this rule with emphasis, and it stands to-day the settled and undisputed law of that coun- try. The correctness of this decision of Lord Mansfield, in so far as it ap- plied the privilege to judges, has iiever, that I am aware of, been questioned in England or in this country. It is a general principle of the highest im- portance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions without apprehension of personal Consequence to himself. Liability to answer to every one who plight feel himself aggrieved by the action of the judge would be inconsistent with the possession of this free- dom, and would destroy that independence without which no judiciary can be either respectable or useful. The principle which exempts judges 6f courts of superior -or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions obtains in all countries where there is any well-ordered system of jurisprudence. Brad- ley V. Fisher, 13 Wall., 335. Nor does the motive which influences the act affect the question of liability, because an inquiry into the motive of the judge would, as said in Floyd v. Barker, 12 Coke, 35, " tend to the scandal and subversion of all justice, and those who are the most sincere would not be free from continual calumniations." This immunity, remarked Chan- cellor Kent in Yates v. Lansing, 5 Johns., 391, has" a deep root in the com- mon law ; " and he likewise observed in the same case, ' ' that it has been steadily maintained by an undisturbed current of decisions in the English courts amidst every change of policy and through everj> revolution of their government." " No man," he further said, " can foresee the disastrous con- sequences of a precedent in favor of such suits. Whenever we subject the established courts of the land to the degradation of private prosecutions, we subdue their independence and destroy their authority. Instead of theii- being venerable before the public they become contemptible, and we thereby embolden the licentious to trample upon everything sacred in so- ciety and to overturn those institutions which have hitherto been deemed the best guardians of civil liberty." The courts have, with equal emphasis, applied this privilege to witnesses. In the language of Cockburn, C. J., in Seaman v. Netherclift, 3 C. P. Biv., 53: "If there is anything as to which the authority is overwhelming it is ,438 PEIVILEGED OOMMCNICiTIONS. that a witness is privileged to the extent of what he says in course of ex- amination. Neither is that privilege affected by the relevancy or irrelevancy of what he says, for then he would be obliged to judge of what is relevant or irrelevant; and questions might be, and are, constantly asked which are not strictly relevant to the issue. But that beyond all question this un- qualified privilege extends to a witness is established by a long series of cases, the last of which is Dawkins v. Eokeby, after which to contend to the contrary is hopeless. It was there decided that the evidence of a wit- ness with referenpe to the inquiry is privileged, notwithstanding it may be malicious ; and to ask us to decide to the contrary is to ask us what is beyond our poWer. ... A long series of authorities, from the time of Elizabeth to the present time, has established that the privilege of a wit- ness while giving evidence is absolute and unqualified." And in the same case Amphlett, C. J., said: "It is clear, therefore, that the case comes within the rule that has been laid down for two or three hundred years ; and it is important that a rule so long established should be strictly adhered to — a rule which was established not for the benefit of witnesses, but for that of the public and the advancement of the administration of justice to prevent witnesses from being deterred by the fear of having actions brought against them from coming forward and testifying to the truth.'' In the case of Dawkins v. Eokeby, referred to by Chief Justice Cockburn, the judges, on the opinion expressed by them in obedience to the request of the house of lords, said : " A long series of decisions has settled that no action will lie against a witness for what he says or writes in giving evi- dence before a court of justice. . . . The principle we apprehend is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, .whether true or false, that they acted from malice." 14 Moak (Eng, E.), 127. What conceivable reason is there for applying to an attorney a less lib- eral rule than the one so clearly and explicitly laid down in the cases of judges and jvitnesses? It seems to me that the same reasons and the same public policy wliich support this absolute privilege, when invoked by a judge or by a witness, apply with at least equal force and pertinency to the case of an attorney. It is likely, from the very situation which he occu- pies, that he will need the protection of such a rule for the furtherance of public justice, more than either a judge or a witness. What he says in the trial of causes is often said on the impulse of the moment, under the infiuence of strong excitement, without opportunity for calm reflection or time to measure or to weigh his words. He is called jipon to confront vice, to denounce crime, to unmask fraud, to expose its disguises, to explore the hidden and secret ways of the crafty, the cunning and the dishonest. Innocence confides its vindication to his skill, and his fiercest conflicts are often the causes of the weak, the helpless and the oppressed. The prop- erty and the reputations of the living, the estates of the dead, and the in- heritance of the orphan, may all be the subjects of his watchful vigilance and anxious solicitude in the trial of causes. Vast pecuniary interests, and the most delicate social and domestic relations, when dragged into litiga- tion, demand his ceaseless attention. He becomes identified with the strifes of others, and is often visited with the unmerited criticism which the PRIVILEGE OP COUNSEL DISCUSSION OF THE SUBJEGT. 439 bitter feelings, engendered by an angry lawsuit, frequently provoke. He becomes, unconsciously, from the force of circumstances, a partisan in his client's cause. If he is to stop during each of the many occasions when he may thus be engaged in aiding in the administration of justice, and to measure each word before using it, lest he incur the perils of a civU suit, whether successfully maintained or not is immaterial, his eflSciency would be greatly diminished, and his usefulness most seriously impaired. The doctrine announced by Lord Mansfield in Eex v. Skinner, as respects an attorney, is fully supported by the following statement of the rule in 2 Add. Torts (Wood's ed.), g 1133: " If a counsel [or an attorney acting as an advocate] speaks scandalous words against one in defending his client's cause, an action lies not against him for so doing ; for it is his duty to speak for his client, and it shall be intended to be spoken according to his client's instructions. The freedom of speech of the bar is the privilege of the client vested in the counsel who represents him. It would be impossible properly to conduct a cause in court unless considerable latitude were allowed to the advocate, and if any evil happen therefrom it must be endured for the sake of the greater good which attends it." See, also, Wood v. Gunstoe, Style, 463; Mackay v. Ford, 29 L. J., Exch., 404; Odgers on S. & L., 193; Poll. Torts, top p. 175; Munster v. Lamb, 11 Q. B. Div., 588. In this last case the question is fully met and explicitly decided. Brett, M. R., there said: " This action is brought against a solicitor for words spoken by him before • a court of justice, while acting as the advocate for a person charged in that court with an offense against the law. For the purpose of my judgment I shall assume that the words complained of were uttered by the solicitor maliciously; that is to say, not with the object of doing something useful towards the defense of his client. I shall assume that the words were uttered without any justification, or even excuse, and from the' indirect motive of pereonal ill-wiU or anger towards the prosecutor, arising out of some previously existing cause; and I shall assume that the words were irrelevant to every issue of fact which was contested in the court where they were uttered. Nevertheless, inasmuch as the words were uttered with reference to and in the course of the judidial inquiry which was going on, no action will lie against the defendant, however improper his behavior may have been." Then, after speaking of the privilege of judges and wit- nesses, he proceeded : " Of the three classes — judges, witnesses and counsel — it seems to me that a counsel has a special need to have his mind clear from all anxiety. . . . The rule of law is that what is said in the course of the administration of the law is privileged; and the reason of that rule covers a counsel even more than a judge or a witness. . . . The rule may be taken to be the rule of the common law. That rule is founded upon public policy. With regard to counsel, the questions of malice, bona fides and relevancy cannot be raised. The only question is whether what is complained of has been said in the course of the administration of the law. If that be so, the case against a counsel must be stopped at once." And Fry, J., was equally emphatic. 'If such actions," he remarked, • • were allowed, persons performing their duty would be constantly in fear of iliem." That this privilege is liable to be abused is not denied. It is also true that its abuse may be productive of great hardships. Rolfe, B., in 4J:0 PRIVILEGED COMMUNICATIONS. Winterbottom v. Wright, 10 Mees. & W. , 115, answering a similar objection, urged, however, in a case not analogous to this, observed: "This is one of those unfortunate cases in which there certainly has been damnum; but it is damnum absque injuria. It is no doubt a hardship upon the plaintiff to be without a remedy, but by that consideration we ought not to be in-< fluenced. Hard cases, it has been frequently observed, are apt to introduce bad law." It is obvious, therefore, that such a consideration ought not to prevail as a sufficient reason for qualifying the privilege, if it be otherwise well founded and correct in principle. Far greater mischiefs will result, and the administration of justice wjU be more seriously interfered with, by a relaxation of this doctrine and by the toleration of suits against attorneys, witnesses and parties for "words spoken in office," than can possibly grow out of the rare instances where, in an honorable profession, the privilege may be abused, or availed of for purely malevolent pui'poses. There is no unbending rule of law which does not or may not work at some time some hardship to some individual. In the very nature of things this is essentially so. But where t;he reasons for its adoption are plain and unmistakable, and where the public security and tranquillity and the due, unti'ammeled administration- of justice outweigh the private interest or the private right, the latter must yield in obedience to a principle that is universal in its application, though frequently harsh in its consequences; or, as the doctrine is more clearly stated In Broom, Leg. Max., 41 : " In the imperfection of human nature, it is better even that an individual should occasionally suffer a wrong than that the general course of justice should be impeded atid fettered by constant and perpetual restraints and appre- hensions on the part of those who are to administer it." The principle in all such cases is that the law will rather suffer a private mischief than a public inconvenience. Johnston v. Sutton, 1 Term E., 513. When it is re- membered that the trial court has full authority to check and to punish summarily any violation of this privilege, to the extent even of disbarring the offender, the danger of its being abused in actual practice greatly di- minishes. Nor is there any greater force, it seems to me, in the argument drawn from the maxim that wherever there is a wrong there also should be a remedy. Considerable stress is laid upon this in many of the cases re- stricting the privilege. The maxim, when rightly understood and applied, is both salutary and reasonable ; but some confusion has arisen from a mis- conception of its scope and from unguarded and incautious applications of it to cases where properly it was wholly inapposite. To assert that words spoken by an attorney in a court of law dliring the progress of judicial pro- ceedings, in the conduct or defense of which he is engaged in his profes- sional capacity, are, because defamatory and false, a wrong in the sense in which that word is used in the maxim quoted, and then to conclude from that assertion that an action lies against the attorney who used the words, is to assume as proved the very question at issue — the very point to be determined. Now, it is very well known that it is not literally and uni- versally true that there is a remedy for every wrong ; because there are many invasions of rights for which there exist no remedies, and each of these is denominated in legal nomenclature a damnum absque injuria. To attribute, therefore, to the maxim a universal application when it is not in PRIVILEGE OF COUNSEL — DISCUSSION OF THE SUBJECT. 441 fact univei-sal, and then to assume, as the argument does, that the words spoken under the conditions indicated are within that application, is palpa- bly illogical and erroneous. Words thus spoken would occasion an ac- tionable wrong unless they are privileged; and thus, notwithstanding the maxim, the fundamental question recurs, Are such words, so spoken, privi- leged or not? I am aware that most of the American cases have not gone to the length of holding the privilege to be an unqualified one, and that they generally have decided that the attorney was exempt from liability, provided the words spoken or written by him were relevant, pertinent, or had reference to the subject-matter under judicial investigation. But this qualification deprives the privilege of its only value. If the attorney may be sued for words spoken in the course of a judicial inquiry because the words are as- sumed to be irrelevant to that inquiry, he would be subjected to the vexa- tion and harassment incident to the defense of such a suit, even though he should succeed in demonstrating the pertinency of the language complained of. The liability to be sued is the thing which will fetter and trammel the counsel in the discharge of his duty quite as much as any apprehension of the consequences of such a suit. If he is liable to be sued for the speaking of words alleged to be irrelevant, he can never know with certainty what, upon the trial of such an action against him, the court may consider irrele- vant; and thus the apprehension of being called upon to .defend a suit against himself for words which he may have thought relevant would deter him from discharging his duty as fully and freely as he would other- wise have been able to do. The fear of being sued by a totally irreponsible person for words in fact relevant, but alleged to be irrelevant, might, anl most naturally would, cause him an anxiety not consistent with a fres and uncramped fulfillment of his obligations to his client. Whether the words which he uses are or are not relevant he is still, under this quahfied privilege, liable to be sued for them, even though the action would ulti- mately fail, and much of his time would be necessarily occupied in estab- lishing the relevancy of his words as a defense to the suits which the disappointment or chagrin of defeated parties or impeached witnesses might in a spirit of resentment prompt theih to bring against him. It is no answer to say that if he has kept within the limits of the qualified rule he will escape being punished in damages, because the' mere fact that he is liable to be sued at all, and that he must make a defense founded on the relevancy of his words, deprives those persons whom he represents of the benefits which a freedom and fearlessness on his part would secure to them in the administration of the law. It is therefore infinitely better that the door be closed against all suits. If "what is complained of has been said in the course of the administration of the law, ... the case against a counsel must be stopped at once." Otherwise it seems to me the qualification of the privilege defeats the beneficial effects of the rule itself, and, instead of merely abridging its application, practically neutralizes and destroys it altogether. Then again, who is, under this qualification of the English rule, to deter- mine whether the language complained of is or is not relevant or pertinent? In some of the cases it is said to be a question for the court, and in others 442 PRIVILEGED COMMUNICATIONS. it is said to be a question for the jury. In at least one of the American cases (Hastings v. lusk, 23 Wend., 410) this question of relevancy and perti- nency was not only submitted to but was passed upon by the jury. It seems to me too plain for argument that a jury is surely not the proper tri- bunal to decide whether remarks made by an attorney in the progress of a judicial investigation are relevant or pertinent to that proceeding. And yet, if the privilege be held to be a merely conditional or qualified one, de- pending upon the i-elevancy of the objectionable words, I do not see how it ia possible to prevent a jury in Maryland from exercising that function, if the words are written or printed in a brief instead of being spoken orally, and the attorney is indicted instead of being sued civilly ; because in this stats, under the constitution, juries are made, in criminal cases, judges of the law as well as of the facts. To subject an attorney to the annoyance of an indictment and then to the perils of a conviction by a jury, who may hap- pen to think that words used by him in a brief filed, for instance, in this court were irrelevant to the cause he was arguing, would fatally destroy his freedom of action, and utterly cripple his usefulness as an essential offi- cer of the court in the due administration of justice. This would be against the plainest dictates of public policy, and ought not under any circum- stances to be .tolerated. The observations of Chief Justice Coleridge are as apposite here as they were to the case in which he used them, viz. . " But if a rule is established, as the rule as to the privilege of a witness is estab- lished, it is the duty of a judge to give it a reasonable interpretation, and not, while admitting it in terms, to attempt to evade it or fritter it away in its application to particular cases." Seaman v. Netherclift, supra. Again, it is expressly provided by section 18 of article 3 of the constitution of this state that " no senator or delegate shall be liable in any civil action or criminal prosecution whatever for words spoken in debate." It is obvi- ous that this provision was made for some useful purposes, and it is equally clear that those purposes must have been considered of sufficient conse- quence to outweigh all the evils and hardships which might possibly flow from the abuse of such an unrestricted privilege. The framers of that in- strumenc, and the people who by their votes adopted it, manifestly deemed it unwise and impolitic that those who were charged with the responsibility of making and enacting laws should be held answerable for' words spoken by them in the performance of that important duty; and this could only have proceeded upon the theory that they ought to be perfectly free and untrammeled when discussing and considering measures affecting the pub- lic interest and concerning the welfare of the state. The privilege thus accorded them is an absolute one, in no manner depending upon the rele- vancy, good faith or truth of the words that may be spoken. Why, then, should there be upon principle a different rule applied to those whose duty difficult always, and of an equally important character) is to aid in the just and impartial administration of those very same laws? What principle can be imagined as a justification for the rule in the one case that will not be equally cogent as a reason for its application in the other? Inasmuch as the most formal declaration of the organic law of the state exempts the law-maker from liability in this instance, we would be warranted, in my judgment, even if there were no other reasons for doing so, in extending PEIVILEGE OF COUNSEL — DISCUSSION OP THE SUBJECT. 443 that exemption to the advocate and attorney when the reasons therefor are precisely and identically the same, and the necessity is equally as urgent, if not in fact greater. But, apart from all other considerations, the question, it appears to me, has been distinctly settled in this state by the decision of tliis court in Mau^ rice V. Worden, 54 Md., 333. That was an action for an alleged libel. Mau- rice was a teacher at the naval academy in Annapolis. Worden was the superintendent of the academy. Maurice tendered his resignation, and Worden indorsed upon it the alleged libelous words, and forwarded it, as required by the regulations governing the navy, to the secretary of the navy. Suit was thereafter brought by Maurice against Worden. The court of common pleas of Baltimore instructed the jury that no evidenc.e had been given legally sufficient to entitle the plaintiff to recover, and; the verdict and judgment being against him, Maurice appealed to this court. The question was then directly raised as to whether the indorsement on the resignation furnished a cause of action; and that turned upon the inquiry whether that indorsement or communication to the secretary of the navy was within the limits of a privilege, either absolute or qualified. As the case was presented, before it could be held that the action was maintainable it was necessary for the court to determine that Worden was not, under the circumstances, entitled to invoke in his defense either thR absolute or the qualified privilege. In other words, it was necessary for the court to decide whether his communication fell within the scope of any privilege. To in- telligently do that it was requisite for the court to clearly define the two classes of privileged communications. In a'pproaching that subject this court said : " There are two classes of privileged communications which form exceptions to the general law of libel. The one is absolutely privileged, and cannot be sued upon, while the other may be the cause of action, and the suit upon it maintained on proof of actual malice." The court then pro- ceeded to define the cases where the absolute privilege applies. " A great number of authorities," says the opinion, " have been referred to, and they have been examined with care. There is but little conflict among them in relation to the class of communications which are regarded as absolutely privileged.'' The classification in Starkie on Slander and Libel well states the conclu- sion drawn from the great bulk of the cases. Those enumerated by the author as being absolutely privileged, though false and malicious, and made without reasonable or probable cause, "are communications made in the course of judicial proceedings, whether civil or criminal, and whether by a suitor, prosecutor, witness, counsel or juror; or by a judge, magistrate, or person presiding in a judicial capacity over any court or other tribunal, judicial or military, recognized by and constituted according to law ; and so also communications made in the course of parliamentary proceedings, whether by a member of either house of parliament or by petition of indi- viduals who are not members, presented to either house or to a committee thereof." Folk. Starkie, Sland., t^ 688. After thus recognizing and adopt- ing this classification of absolute privileges the court adds : " Beyond this enumeration we are not prepared to go." The court then proceeds to de- termine that the communication in question in that case did not belong' to 444 PEITILEGED COMMUNICATIONS. that class of absolute privileges, but that it fell within the rule relating to qualified privileges, and reversed the judgment and awarded a new trial ; Judge Miller dissenting. Here, then, was a case" in which the absolute privilege was claimed to be applicable. The mind of the court was dis- tinctly called to the subject of such a privilege, to its scope and its extent. It was necessary,' in deciding the case, to define and clearly lay down the limits of an absolute privilege in order to determine whether the case then before the court belonged to that class. The court did so define aud lay down those limits, and did distinctly embrace within them the case of an attorney, by the adoption, with approval, of the text of Mr. Starkiel This was manifestly not an obiter dictum. I cannot, therefore, imagine how it is possible now to apply to the case of an attorney the qualified rule with- out at the same time holding that this court was manifestly wrong when, in Maurice v. Worden, it adopted, with its sanction, the doctrine announced by Starkie that the privilege of an attorney was absolute. Judge Miller placed his strong dissenting opinion upon the distinct ground that the com- munication in that case " ought to be absolutely privileged*" Holding, as I do very decidedly, these views in regard to this question, which is one of great importance, I place my assent to the affirmance of the judgment of the learned court below entirely upon the ground that the words spoken by the appellee were, having been spoken iu a court of justice during a judi- cial investigation in which he was engaged as counsel, absolutely privileged, without any reference whatever to their relevancy. Maulsby v. Eeifsnider (Court of Appeals of Maryland, 1888), 6 Atl. Rep., 505. § 37. Illustrations^^ Digest of American Cases. — 1 . The communications of counsel and parties, made in the due course of judicial proceedings, if relevant, will not support an action for defama- tion, and although irrelevant will not constitute a cause of action if the party had reasonable and probable cause for believing the matter to be rele- vant and without proof of actual malice. Lawsou v. Hicks, 38 Ala., 279. 2. Words spoken by a party or counsel in the course of judicial proceed- ings, though they be such as if spoken elsewhere would be actionable in themselves, are not actionable if pertinent and applicable to the subject of the inquiry. Hoar v. Wood, 3 Met. (Mass.), 193; Hastings v. Lusk, 23 Wend. (N. Y.), 410 ; Marsh v. Ellsworth, 36 How. (N. Y.), 533. 3. The privilege of parties to legal proceedings, their attorneys, counsel- ors and solicitors, as to matter material or pertinent, is complete, and mal- ice cannot be predicated of what is so said or written. A., in opposing a motion for an injunction against him, contradicted a material fact in the moving affidavit of W., and swore that W. knew its falsity, and had been guilty of perjury. Held, that an action for the libel could not be main- tained. Warner v. Paine, 2 Sand., 195. 4. Whatever may be said or written by a party to a judicial proceeding or by his attorney, solicitor or counsel therein, if pertinent and material to the matter in controversy, is privileged, and lays no foundation for a pri- vate or public prosecution. The protection is absolute, and no one shall be permitted to allege that it was said or written with malice. But if a party or his agent pass beyond the prescribed limit to asperse or vilify another, he is without protection and must abide the consequences. As where a PARTIES ENTITLED TO SAME PRIVILEGE. 445 person acting as counsel in a justice's court prepared and presented a dec- laration charging the defendant with a trespass, and alleging that the de- fendant was " reputed to be fond of sheep," " in the habit of biting sheep," and that " if guilty he ought to be shot," held, that an indictment therefor, as a libel alleging malicej was good. Gilbert v. People, 1 Den., 41. 6. An attorney, who in the course of his employment flies specifications of opposition to an insolvent's discharge, alleging that the insolvent has been privy to making false and fraudulent entries in his books with intent to defraud creditors, and had sworn falsely in relation to his estate, and while acting in a fiduciary capacity had fraudulently converted property to his own use, of which facts he had been informed by his client, cannot be held for libel; the matter is absolutely privileged. HoUis v. Meux, 69 Oal., 625; 68 Am. Rep., 574. 6. The speech of an attorney upon a trial may, if scandalous, afford ground for an action for libel against one publishing it. Commonwealth v. God- shalk, 18 Phil. (Penn.), 575.' § 38. Digest of English Cases.— 1. A woman was charged before a court of petty sessions with admin- istering drugs to the inmates of the plaintiff's house in order to facilitate the commission of a burglary there. The plaintiff was the prosecutor, and the defendant, who was a solicitor, appeared for the defense of the woman. It was admitted that she had been at the plaintiff's house on (he evening before the burglary ; and there was some evidence, though very slight, that a narcotic drug had been administered to the inmates of the plaintiff's house on that evening. During the proceedings before the magistrates the de- fendant, acting as advocate for the woman, suggested that the plaintiff might be keeping drugs at his house for immoral or criminal purposes. There was no evidence called or tendered that the plaintiff kept any drugs in his house at all. Held, that no action would lie against the defendant for these words. Munster v. Lamb (C. A.), 11 Q. B. D., 588; 53 L. J., Q. B., 726; 32 W. R., 343; 49 L. T., 253; 47 J. P;, 805. 2. Plaintiff made an affidavit in an action he had brought against defend- ant in the king's bench. Defendant (apparently conducting his own case) said- in the court, in answer to this affidavit: "It is a false affidavit, and forty witnesses will swear to the contrary." Held, that no action lay for these words. Boulton v. Chapman (1640), Sir W. Jones, 431 ; March, 30, p. 45. 3. A servant summoned his master before a court of consciehce for a week's wages. The master said: "ke has been transported before, and ought to be transported again. He has been robbing me of nine quartern loaves a week." Lord Ellenborough held the remarks absolutely privileged, if the master spoke them in opening his defense to the court ; but otherwise if he spoke them while waiting about the room and not for the purpose of his defense. Trotman v. Dunn, 4 Camp., 231. § 39. Parties litigant Entitled to the Sa^e Privilege.— An attorney acting as an advocate in a county ^qourto^^o- lice court enjoys the same immunity as counsel.'^S^wii?^ lYork V. Pease, 3 Gray (Mass.), N., 793; 39 L. J., Ex., 404; 6 Jur. 283; Brow v. Hathaway, 13 Allen (N. S.), 587; 6 W. R,, 586. (Mass.), 33; Maokay v. Ford, 5 H. & 446 PEIViLEGED COMMUNICATIONS. proctor in an ecclesiastical court.' The party himself, because of his ignorance of the proper mode of conducting a case, is allowed even greater latitude.'' Any observation made by one of the jury during the trial is equally privileged, provided it is pertinent to the inquiry.' And so is any presentment by a grand jury.* § 40. Illustrations — Digest of American Cases.- 1. Words spoken in good faith and within the scope of his defense by a party on trial before a church meeting are privileged, and do not render him liable to an action, although they disparage private character. York v. Pease, 3 Gray (Mass.), 283. 2. Words spoken by the defendant in an action of tort for slander which relate to a subject-matter in which he is immediately interested, and are said for the purpose of protecting his own interests and in the full belief that they are true, are privileged though made in the presence of others than the pairties immediately interested ; and it is necessary for the plaintiff to show malice' in fact in order to recover. Brow v. Hathaway, 13 Allen (Mass.), 33. 3. When' a party in -an application to the supreme court for an extensiop of time to file a transcript goes outside of the facts material to procure the order, and states matter wholly foreign to the application, wherein he charges his attorney with having entered into a collusive agreement with the attorney of the other party, this charge against his attorney is not a privileged communication, but is libelous per se. Wyatt v. Buell, 47 Cal., 624. 4. An action will not lie for words- spoken by a party in his defense in the course of a trial. Badgley v. Hedges, 2 N. J. L. (1 Pen.), 233. §41. Prosecuting Witnesses before Justices Entitled to the Same Privilege. — In England, as we understand the law, the complainant in a criminal proceeding is in many respects regarded as a party, and is familiarly called the prosecutor. In some cases he is required to give security for the costs. In the early ages of the common law criminal prosecutions with a view to the punishment of offenders, under the name of ap- peals, were commenced and carried on by the party aggrieved in his own name. In this country in many cases the complain- ant has a pecuniary interest in the result of a criminal prose- cution carried on in the name of the people, and by general usage he is recogni",ed as in some respects the manager of the prosecution befo'.e the magistrate, unless of course the man- i- iHigBiason V. Flaherty, 4 Ir. C. ^R. v. Skinner, LoflEt, 55. L. R., 135. •'Little V. Pomeroy.Ir.R., 7 C. L., •' Badgley v. Hedges, 2 N. J. L. (1 50. Pen.), 283; Hodgson v. Scarlett, 1 B. & Aid.. 244. ILLUSTRATIONS — AMEEICAN GASES. 447 agement is assumed by an authoTized public prosecutor. But whether or not it is the legal right of a complaining witness to manage the prosecution and support his complaint before the magistrate by calling and examining witnesses, cross-exam- ining the witnesses called by the prisoner, and offering such arguments and comments upon the testimony as the case may seem to require, or to retain counsel for the same purpose, it certainly seems to be competent for the magistrate to permit him to do so. Upon this point Chief Justice Shaw was of the opinion that when, in the absence of the prosecutor, a com- plaining witness is acting as party or counsel before a magis- trate, either as a matter of right or by permission of the magistrate, he is entitled to the same privilege as a party or counsel in other judicial proceedings.^ § 42. Illustrations — American Cases. — 1. A Mnssachiisptts Case: Hoar v. Wood, 44 Mass., 194. In the trial of an action of slander in the court of common pleas before Strong, J. , the plaintiff introduced evidence tending to prove that the de- fendant uttered the words set forth in the v?rit and declaration. It also appeared that the words were spoken to the plaintiff, in the presence of others, while the plaintiff was under examination as a witness in a trial be- fore a justice of the peace on a complaint in behalf of the commonwealth, where the defendant was the complainant and was examining the plaintiff and managing the case in behalf of the commonwealth. The defendant requested the court to instruct the jury as follows: "That if the jury be^ lieve that the words were spoken to a witness in a case on trial before a justice of the peace in the course of the conduct of the case while the wit- ness was under examination, the defendant being complainant and man- ager of the case in behalf of the commonwealth, and that the words were spoken bona fide, without actual malice or intent to defame the witness,' with a view to elicit the truth from the witness, or give the justice a com- ment upon the testimony, or influence him thereby in the decision of the case, — the defense is maintained." The court refused to give such instruc- tions, and the jury found a verdict for the plaintiff. To this opinion and decision of the court the defendant excepted. On the hearing of the ex- ceptions in the supreme judicial court Chief Justice Shaw said : " We take the rule to be well settled by the authorities that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore if spoken elsewhere would import malice and be actionable in themselves, are not actionable if they are applicable and pertinent to the subject of inquiry. The question, therefore, in such cases is not whether the words spoken are trne, not whether they are actionable in themselves, but whether they were spoken in the course of judicial proceedings, and whether they were relevant and pertinent to the cause or subject of in- 1 Hoar v. Wood, 44 Mass., 193; Allen v. Crofoot, 3 Wend., 515. 448 PEIVILEGED COMMUNICATIONS. quiry. And in determining what is pertinent much latitude must be al- lowed to the judgment and discretion of those who are intrusted with the conduct of a cause in court, and a much larger allowance made for the ardent and excited feelings with which a party or counsel, who naturally and almost necessarily identifies hireiself with his client, may become ani- mated by constantly regarding one side only of an Interesting and animated controversy in which the dearest rights of such party may become involved. And if these feelings sometimes manifest themselves in strong invectives or exaggerated expressions beyond what the occasion would strictly justify, it is to be recollected that this is said to a judge who hears both "sides, in whose mind the exaggerated statements may be at once controlled arid met by evidence and arguments of a contrary tendency from the other party, and who, from the impartiality of his position, will naturally giVe to an ex- aggerated assertion, not warranted by the occasion, no more weight than it deserves. Still, this privilege must be restrained by some limit; and we consider that limit to be this : That a party or counsel shall not avail him- self of his situation to gratify private malice by uttering slanderous expres- sions, either against a party, witness or third person, which have no relation to the cause or subjeqt-matter of the inquiry. Subject to this restriction, it is on the whole for the public jnterest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech in conducting the causes and advocating and sustaining the rights of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions. With these views of the law, the com-t are of opinion that the instructions prayed for by the defendant oyght to have been given to the jury." Citing Astley v. Younge, 3 Bur. (Eng.), 807 ; Hodgson v. Scar- lett, 1 B. & A. , 232 ; Padmore v. Lawrence, 11 A. & E., 380 ; Ring v. Wheeler, 7 'Cow. (N. Y.), 725; Hastings v. Lusk, 33 Wend. (N. Y.), 410; Mower v. Viratson, 11 Vt., 536; Bradley v. Heath, 13 Pick. (Mass.), 163. 2. In a New York Case (Allen v. Crofoot, 3 Wend., 515, 1839) tried at the Onondago qircuit the defendant had entered a complaint in writing, under oath before a justice, against the plaintiflE. The plaintiff was arrested on a warrant and brought before the justice, and, after perusing the complaint, he asked the defendant, who was present, if he was guilty ; to which the defendant answered " that his shop had been broken open, his leather stolen and his shoes cut to pieces, and he believed the plaintiff did it, and that he had reason to believe that the plaintiff did it." The plaintiff then asked the defendant whether he considei-ed himself under oath, to which he an- swered that he did. For the speaking of these words upon this occasion the action was brought. The defendant contended oh the trial that the words were spoken in the course of a judicial inquiry, and therefore were not ac- tionable ; but his honor the judge charged the jury that the words were actionable because the defendant was not, at the time of the speaking of them, testifying as a witness or complainant, and the jury gave a verdict for the plaintiff for $100 damages, which was now moved to be set aside. By the Court, Marcy, J. : In this case, as I understand it, the words charged were pertinent to the matter in question, because they were the re- iteration of the charge specified in the complaint to which the defendant had made oath, The whole of this case is resolved into the question of fact, WITNESSES. 449 Were the words spoken in the courge of a judicial proceeding? The parties were before a magistrate ; the plaintiff had been brought there on a war- rant issued on the charge against him by the defendant under oath ; the justice had furnished him with'the written complaint against him, and he was perusing it when the defendant entered and was interrogated by the plaintiff on the subject of the charge made against him. Under these cir- cumstances the defendant might have believed that the magistrate was pro- ceeding on his complaint ; and as the plaintiff had been brought in to answer to it, he might have supposed that the plaintiff had a right to question him and that it was his duty to answer. When an appeal was thus made to him as to the truth of the charge in the presenpe of the justice to whom it had been preferred, and who had the matter before him, silence, he might well suppose, would excite suspicion and subject him to the imputation of shrink- ing from his charge before the man he had accused. If he did speak, it was natural to expect an asseveration of his belief in the charge he had made under oath and an affirmation that he had reason for preferring it. There was not probably a trial, strictly speaking, going on in the court at the time the words were uttered ; nor was that necessary In order to make the defense available. The proceedings on complaint do not appear to have been brought to a close ; the matter of the complaint was then pending be- fore the magistrate to abide his further order. In my judgment the ques- tion of fact, whether the words were spoken in the course of the proceeding upon the complaint made by the defendant, or under such circumstances that the defendant had reason to believe and did in good faith believe that it was necessary for him then to repeat the charge contained in his com- plaint, should have been distinctly submitted to the jury. A new trial ought, therefore, to be granted for the misdirection of the judge. § 43. Witnesses. — A witness on the stand is absolutely priv- ileged in answering all questions asked him by the counsel on either side; and if he volunteers an observation, if it has ref- erence to the matter in issue, or fairly arises out of any ques- tion asked him by counsel, though only going to his credit, such observation will also be privileged.' But a remark made by a witness while on the stand, wholly irrelevant to the mat- ter of inquiry, uncalled for by any question of counsel, and introduced by him maliciously for his own purposes, and ob- servations made while waiting about the court, before or after he has given his evidence, are not privileged.^ 1 Seaman v. Netherclift, 1 C. P. D., 42 N. Y., 166; Am. Rep., 503; Barnes 540; 3 C. P. D., 53; 46 L. J., C. P., v. McCrate, 33 Me.. 442; Kidder v. 128.' Parkhurst, 3 Allen (Mass.), 393; Calk- 2Trotman v. Dunn, 4 Camp., 211; ins v. Snraner, 13 Wis., 193; Dun- Lyman v. Gowing, 6 L. R. (Ir.), 259; lap v. Glidden, 81 Me., 435; Grove v. Cooley, Const. Lim., 545; 7 Wait's Brandenburg, 7 Blaokf. (Ind.), 384; Act. & Def., 438; White v. Carroll, Ring v. Wheeler, 7 Cow, (N. Y.), 736. 39 450 PEIVILEQ-ED COMMUNICATIONS. §44. The Rule in Starkie.— "Witnesses appear in court in obedience to the authority of the law, and therefore may be considered to be acting in the discharge of a public duty; and though convenience requires that they should be liable to a prosecution for perjury committed in the course of their evi- dence, or for conspiracy in case of a combination of two or more to give false evidence, they are not responsible in a civil action for any reflections thrown out in delivering their testi- monv 1 § 45. The American Rule — Folkes, J.— We recognize fully the importance to a due administration of justice of uphold- ing the privilege accorded parties to write and speali freely in judicial proceedings; but in so doing we must not lose sight of the fact that it concerns the peace of society ; that the good name and repute of the citizen shall not be exposed to the malice of individuals who, under the supposed protection of an absolute privilege, make use of the witness box to volunteer defamatory matter in utterances not pertinent. To hold such persons responsible in damages cannot fairly be said to hamper the administration of justice. The privilege of a witness is great and will be protected in all proper cases, but it must not be mistaken for unbridled license.^ § 46. Illustrations — American Cases. — 1. A Maryland Case: Hunhellv. Foiieif (1888), 6 Atl. Rep., 500. In a case recently decided in the Maiyland court of appeals (June, 1888), it was held by the majority of the court that where a witness is asked to fix a certain date, a reply as follows: "Not knowing that a mistress or woman of Mr, Plitt would step in to claim the lawful wife's property, I difl not keep an account of the date that way. If I would have, I would have noticed the date, and all those little particular incidents," — is not so wholly foreign to the case as to be beyond the privilege of a witness, and therefore not actionable as slander. In the opinion, which is here given, the law will be found fully discussed : Miller, J. This is an action of libel or slander against a witness in an equity cause, whose testimony was written down by the examiner, returned to the court and read at the hearing before the judge. The alleged libelous or slanderous statements are contained in the testimony thus taken. There was a demurrer to each of the two counts in the declaration, which the court sustained, and thereu'pon gave judgment for the defendants. From that •Starkie on Slander, 243; 3 Inst., ^ghadden v. McEIwee, 6 S. W. 228; 2 Roil. Rep., 198; Pal., 144; 1 Rep., 602. Vin. Abr., 387: Cro. Eliz., 230; Terry V. Fellows, 21 La. Ann., 375. ILLUSTEATIONS AMERICAN CASES. 451 judgment this appeal is taken. In the able arguments of counsel the whole field of the law on the question of privilege has been explored ; and we be- lieve all the decisions, as well as the opinions and dicta of eminent judges, have been cited and pressed upon our attention. It would be a tedious task to review them in detail, and a hopeless one to attempt to reconcile them. The question is a new one in this state. No precedent for such an action has been found in our reports or judicial records, and we believe this is the first attempt to bring one since a court of justice was first established in the colony of Maryland — a period of more than two centuries. This fact, while it may not be conclusive against the right to maintain the ac- tion, certainly leaves us free to follow and adopt those authorities which state the law in accordance with wliat, in our judgment, the administration of justice and a sound public policy demand. The case now before us is not that of an advocate, but of a witness ; and in our opinion it is of the greatest importance to the administration of jus- tice that witnesses should go upon the stand with their minds absolutely • free from apprehension that they may subject themselves to an action of slander for what they may say while giving their testimony. Mr. Town- shend, in his book on Slander and Libel, well says: " The due administra- tion of justice requires that a witness should speak, according to his belief, the truth, the whole truth, and nothing but the truth, without regard to the consequences; and he should be encouraged to do this by the conscious- ness that, except for any wilfully false statement, which is perjury, no matter that his testimony may in fact be untrue, or that loss to another en- sues by reason of his testimony, no action for slander can be maintained against him. It is not simply a matter between individuals ; it concerns the administration of justice. The witness speaks in the hearing and under the control of the court; is compelled to speak, with no right to decide what is immaterial ; and he should not be subject to the possibility of an action for his words." Townsh. Sland. & Lib., §333. But there is more substantial authority for the absolute character of the privilege. In the standard work of Starkie on Slander it is laid down as the result of the English decisions that " witnesses, like jurors, appear in court in obedience to the authority of the law, and therefore may be considered, as well as jurors, to be acting in the discharge of a public duty; and, though con- venience requires that they should be liable to a prosecution for perjury committed in the course of their evidence, or for conspiracy in case of a combination of two or more to give false evidence, they are not respon- sible, in a civil action, for any reflections thrown out in delivering their testimony." 1 Starkie, Sland., 263. This statement of the law has been frequently quoted with approval by the English courts, and in some in- stances by courts and text-writers in this country. Terry v. Fellows, 21 La. Ann., 375. In support of the absolute character of the privilege, a long list of English decisions, ancient and modern, has been cited. Without re- ferring to the earlier ones, we mention some of those decided in more recent times, which have special reference to the case of parties and witnesses: Revis V. Smith, 86 E. C. L., 126; Henderson v. Broomhead, 4 Hurl. & N., 568; Kennedy v. Hilliard, 10 Ir. C. L., 195; Dawkins v. Eokeby, 4 Fost. & F., 806; Dawkins v. Rokeby, L. E., 8 Q. B., 355, on appeal in the house of lords, L. K., 7 H. L., 744. 452 PRIVILEGED COMMUNICATIONS. 'In these cases, Willea, Coleridge, C. J., Cookburn, C. J., Blackburn, Kelly, C. B., Creswell, Lord Cairns and other eminent jurists have a« in r^rt.-r^4-ni-nt^A in r. Villi --nun.i-In n. J!^.^ -._ i ^._' J.: _1 ■ • . ILLTJSTEATIOXS DIGEST OF AMBEICAN CASES. 469 relevant and material, it is absolutely privileged. Wilson v. Sullivan (Ga.), 7 S. E. Rep., 374. 6. The publication by newspapers of pleadings or other proceedings in civil cases, before trial, is not privileged. Park v. The Detroit Free Press Co. (Mich.), 40 N. W. Rep.. 731. 7. An affidavit made before a magistrate charging perjury, and made for the purpose of causing an arrest, will not support an action for libel, though falsely and maliciously made. Francis v. "Wood, 75 Ga., 648. 8. One who, in an affidavit in a judicial proceeding, charges a woman with being a common prostitute, is not guilty of slander. Lindsey v. State, 18 Tex. App., 280. 9. Averments in an affidavit in support of a motion for a new trial of a criminal case in a court of competent jurisdiction, if material, are priv- ileged, and, even if shown to be false and malicious, will not subject the affiant to an action in damages. Burke v. Ryan, 36 La. Ann., 951. 10. A. was on t:-ial before a Masonic lodge. B. testified, and C. made affi- davit that B. could not be believed under oath. Neither B. nor C. were Masons. Held, that C.'s communication was not privileged. Nix v. Cald- well, 81 Ky., 293; 50 Am. Rep., 163. 11. A defamatory statement contained in the declaration, in an action signed by counsel, if not pertinent or material to the isSue, is not privi- leged, and in an action for libel against the counsel he cannot justify by showing his belief that it was true, the sources of his information or his instructions from his client. McLaughlin v. Cowley, 137 Mass., 316. 12. An attorney sued his client for professional - services, who gave no- tice, under the general issue, that he would prove that the . plaintiff con- ducted the pi'osecution and defense of the several suits, and attended to the other professional business in the declaration mentioned in so careless, unskUfnl and improper a manner as to render such service of no value; and the attorney moved to strike out the notice as false, and the client re- sisted upon his affidavit, stating that the attorney had revealed confidential communications of the client relative to a portion of the business to a third person, to the client's prejudice. In the attorney's action for libel, upon his declaration reciting these facts, and charging that the affidavit was ma- licious and impertinent, held, that the affidavit was pertinent to the motion, and that the law would not allow its truth or falsity to be drawn in ques- tion in the action. Garr v. Selden, 4 Corns., 91 ; rev'g 6 Barb., 416. 13. In an action for a libel the defendant may plead that the matter was part of an affidavit used in opposing an application to mitigate bail in an action by him against the plaintiff, and that he had reasonable and probable cause for believing, and did at the time believe, that it was true. Suydam v. Moffat, 1 Sand., 459. 14. Where the plaintiff in a suit demands a bill of particulars he cannot maintain an action for libel upon any statements therein made. Perzel v. Tausey, 53 N. Y. Sup. Ct., 79. 15. The presumption is that a complaint drawn and signed by an attor- ney is privileged, and an action for libel cannot therefore be maintained upon it, neither malice nor bad faith being shown. Dada v. Piper, 41 Hun (N. Y.), 354. itJO PEIVILEaED COMMUNICATIONS. .' 10. Whatever is said or. written in a legal proceeding pertinent and ma- terial to the matter in controversy is privileged, and no action can be main- tained upon it. So in an action on the case for wrongfully suing out an attachment, a count in the declaration which was merely a count in slander, based upon an alleged libelous afiBdavit filed for the procurement of the writ, was held bad on demurrer. Spaids v. Barrett, 57 111., 289; Hill, on Torts, 344; Warner v. Payiie, 2 Sandf. (N, Y.), 195; Garr v. Selden, 4 Comst. (N. Y.), 91. 17. A party cannot be held in damages for allegations set up by Mm in Jiis pleadings in a suit which assail the character of the other party where it appears that the circumstances were such that he might reasonably be- lieve that the allegations were true. Wallis v. New Orleans Times Co., 29 La. Ann., 66. 18. In an answer statements relevant believed by the defendant to be true, and made without malice, upon probable cause and by the advice of counsel, are not ground for a recovery in a suit for libel. So held as to an answer charging a woman with perjury in obtaining certain notes in settle- ment of a bastardy case. Lanning v. Christy, 30 Ohio St., 115. 19. Where a bill was filed by a mortgagor to reform the mortgage, and an agent of the mortgagee was charged therein with fraud in coqoection - with the drafting of the mortgage, and said agent made affidavit in sup- port of the answer, averring therein that the charge of fraud was wilfully and maliciously false, held, that an action counting on these words as a libel would not lie. Hart v. Baxter, 47 Mich., 198. 20. A party may allege fraud in his pleadings in a suit for the purposes of his case without thereby rendering him liable in damages for a libel ■ when the charge is made in good faith, without malice, and is based upon facts affording a reasonable inference of fraud. Vinas v. Merchants' Mut. Ins. Co., 33 La. Ann., 1365. " ' 21. An action may be maintained for aspersions contained in an affidavit filed in a suit; there is no rule that matters alleged in an affidavit in judi- cial proceedings are absolutely privileged. Kelly v. Lafltte, 28 La. Ann., 435. § 54. Digest of English Cases.— ■ 1. "No action will lie for defamatory expressions against a third party con- tained in an affidavit made and used in the proceedings in a cause, though such statements be false, to the knowledge of the party making them, and introduced out of malice. Henderson v. Broomhead, 28 L. J., Ex., 360; 4 H. & N., 669; 5 Jur. (N. S.),'1175; Astley v. Younge. 3 Burr., 807; 2 Ld. Kenyon, 536; Eevis v. Smith, 18 C. B., 126; 25 L. J., C. P., 195; 2 Jur, (N. S.), 614. 2. If application be bona fide made to a court which the defendant by a pardonable error honestly believes to have a jurisdiction which it has not, the privilege will not be lost merely by reason of this error. Buckley v. Wood, 4 Eep., 14; Cro. Eliz., 230; M'Gregor v. Thwaite, 3 B. & C, 24; 4 D. & E., 695. BuJ; in other cases an affidavit made voluntarily when no cause is pending, or made coram nan judice, is not privileged as a judicial proceeding. Maloney v. Bartley, 3 Camp., 310; Odgers on S. & L., 194. 8. An attorney's bill of costs is in no sense a judicial proceeding, though PUBLICATION OF PLEADINGS NOT PKIVILEGED. 471 delivered under a judge's order, and can claim no privilege Bmton v. Dowses, 1 F. & F., 668. 4. A charge of felony made by the defendant when applying in dueccmrae •to a jjistice of the peace for a warrant to apprehend ihe plaintiff on that .chaige is absolutely privileged. Ram v. Lamley, Hutt., 113. See Johnson V. Evans, 8 Esp., 33; Weston v. Dobniet, Oro. Jao., 433; Dancaaterv. Hew- son, 2 Man. & R., 176. 5. Defamatory communications made by witnesses or officials to a court- martial, or to a court of inquiry instituted under articles of war, are abso- lutely privileged. Keighley v. Bell, 4 F. & F., 763; Dawkins v. Lord Rokeby, L. R., 8 Q. B., 255; 43 L. J., Q, B., 633; 21 W. R„ 544; 4 F. & F., 606; 28L.T., 134; L. R., 7 H. L., 744; 45L. J.,Q. B., 8; 23 W. R, 931; 33 L. T., 196. 6. No action lay for defamatory expressions contained in a bill in chan- cery. Hare V. Mellers, 3 Leon., 138; as explained by Pollock, B., 16Q. B. D., at p. 113. § 55. Publication of Pleadings in Civil Cases Before Trial Not Privileged. — There is no rule of law which authorizes any but the parties interested to handle the files or publish the contents of their matters in litigation. The parties, and none but the parties, control them. One of the reasons why parties are privileged from suit for accusations made in their pleadings is that the pleadings are addressed- to courts where the facts can be fairly tried, and to no other readers. If plead- ings and other documents can be published to the world by any one who gets access to them, no more efiFectual way of doing mischief with impunity can be devised than filing pa- pers containing false and scurrilous charges, and getting them printed as news. The public have no rights to any informa- tion on private suits till they come for public hearing or action in open court; and when any publication is made involving such matter they possess no privilege, and the publication must rest on either non-libelous character or truth to defend it. A suit thus brought with scandalous accusations may be discontinued without any attempt to try it, or on trial the case may easily fail of proof or probability. The law has never authorized any such mischief. It has been uniformly held that the public press occupies no better ground than private persons publishing the same libelous matter, and, so far as actual circulation is concerned, there can be no question which is more likely to spread them.' » Park V. Detroit Free Press Co. (Mich.), 40 N, W. Rep., 731. 472 PBIVILEGED COMMUNICATIONS. § 56. Illustrations — American Gases. — 1. A Michigan Case: Park v. Detroit Free Press Co. (1888), 40 N. W, Rep., 731. Park, the plaintiflE, sued the Detroit Free Press Company for a libel aigainst him published in the paper, to the effect that he had been the day before (June 23, 1888) arrested and brought before a justice of the peace in Detroit on the charge of bastardy, and on his plea of not guilty was re- leased on his personal recognizance to appear the next day for his prelim- inary examination. The defendant pleaded the general issue, with notice of a special defense to the effect that one of its reporters, ■v^ho was a prudent and skilful person, obtained the information in good faith from the clerk of the court, and that it was published without malice or negligence, and claimed to be privileged ; that on the next day a correction was published as conspicuously as the libel, to the effect that the plaintiff was the attor- ney for the prosecution, and not the defendant in the bastardy proceeding; and that the mistake occurred through tlie justice's clerk, who gave the plaintiff's name as the defendant in the bastardy case ; that on the file- wrapper the plaii\tiff's name was so placed, and that everything was done in good faith, the falsehood being due to mistake. On the trial tbere was a finding and judgment for the defendant under a statute providing that in suits brought for the publication of libels in any newspaper only such actual damages as may be proved can be recovered if it appear that the ptiblication was made in good faith and did not involve a criminal charge, and was dije to a mistake, and that a retraction was published, etc. But on appeal the supreme court held the act unconstitutional, and the publication by newspapers of pleadings or other proceedings in civil casbs before trial not privileged. § 57. Third Class — Commnnications Relating to Military and Naval Affairs. — A similar privilege, resting also on ob- vious grounds of public policy, is accorded to all reports made by a military officer to his military superiors in the course of his duty, and to evidence given by any military man to a • court-martial or other military court of inquiry, it being es- sential to the welfare and safety of the state that military discipline should be maintained without any interference by civil tribunals. In short, " all acts done in the honest exercise of military authority are privileged." The law is Of course the same, as to the navy. Naval and military matters are for naval and military tribunals to determine, and not the ordi- nary civil courts.' 'Hart V. Gumpach, L. E., 4P. C, 336; 21 L. T.,584; Dawkins v. Lord 439; 9 Moore, P. C. C. (N. S.), 241 ; Eokeby, L. R., 7 H. L., 744; 45 L. J., 42 L. J., P. C, 25; 21 W. R;, 365; Q. B., 8; 23 W. R., 931; 33 L. T., 196; Dawkins v. Lord Paulet, L. R., 5 Q. 4 F. & F., 806; Odgers on L. & S., B., 94; 39 L. J., Q. B., 58; 18 W. R, 194. ARCHIVES AND THE KEEPERS THEREOF. 473 §58. Extent of the Rule in America.— All confidential archives and " secrets of state " pertaining to the administra- tion of the government, the disclosure of which would be prejudicial to public interests; the archives of the executive departments at "Washington, including such papers and docu- ments as oflScial communications and correspondence between the president or members of the cabinet and public officials and agents, civil and military; reports of investigations and other oflicial communications made in the line of duty by oflicers of the army or navy to their military or naval superiors; records of advisory boards, etc., — are privileged communications.' § 59. Heads of Departments Keepers of the Archives. — The heads of departments in whose legal custody these mat- ters are cannot in general be required to furnish the same or copies to be produced in court, if the fact is determined by them that it is not for the public interest to make such con- tents public; and if furnished, the court will, in general, refuse to admit them in evidence if objection is made. There seems to be but one exception to the rule, and that is where the offi- cial communication is first shown to have been made mali- ciously and without just cause.^ § 60. Illustrations — Digest of American Cases.— ^ 1. M. was a teacher in the United States Naval Academy, and placed his resignation in the hands of W., the superintendent of the academy, to he forwarded to the secretary of the navy for his decision. W. was required by law to indorse his opinion thereon. The resignation was forwarded by W. with his indorsement thereon of reasons why it should be accepted. In a suit for libel, based on such indorsement, it was held that the indorsement did not fall within the class of communications which are absolutely priv- ileged, but that it was privileged, however, to the extent that the occasion of making it rebutted the presumption of malice, and threw upon the plaintiff the onus of proving that it was not made from duty, but from actual malice, and without reasonable and probable cause. Maurice v. Worden, 54 Md., 233; 39 Am. Rep., 384. § 61. Digest of English Cases.— 1. The defendant, being the plaintiflE's superior oflBcer, in the course of his military duty, forwarded to the adjutant-general certain letters written by the plaintiff, and at the same time, also in accordance with his military duty, reported to the commander-in-chief on the contents of such letters, using words defamatory of the plaintiff. It was alleged that the defend- ' 2 Winthrop's Military Law, 467. Wharton's Crim. Ev., § 513; 1 2 Maurice v. Worden, 54 Md., 333; Greenleafs Ev., § 251; Gardner v. 3 Winthrop's Military Law, 468; Anderson, 23 Int. Eev. Rec, 41._ 474 PEIVILEGED COMMUNICATIONS. ant did so maliciously, and without any reasonable, probable or justifiable cause, and not in the bona fide discharge of his duty as the plaintiff's supe- rior officer. Held, on demurrer, by the majority of the court of queen's bench (Mellor and Lush, JJ.), that such reports being made in the course of military duty were absolutely privileged, and that the civil courts had no jurisdiction over such purely 'military matters. Cockbum, C. J., dis- sented on the grounds that it never could be the duty of a military officer falsely, maliciously and without reasonable and probable cause to libel his fellow-officer ; that the courts of common law have jurisdiction over all wilful and unjust abuse of military authority, and that it would not in any ■ way be destmctive of military discipline or of the efficiency of the army to submit questions of malicious oppression to the opinion of a jury. Daw- kins V. Lord Paulet, L. E., 5 Q. B., 94; 39 L. J., Q. B., 53; 18 W. R., 336; 21 L. T., 584. There was no appeal in this case. The arguments of Cock- burn, C. J,, deserve the most careful attention. In Dawkins v. Lord Rokeby, supra, the decision of the house of lords turned entirely on the fact that the defendant was a witness. Neither Kelly, C. B., nor any of the law lords (except perhaps Lord Penzance), rest their judgment on the incompetency of a court of common law to inquire into purely military matters. The court of exchequer ' chamber no doubt express an opinion that " questions of military discipline and military duty alone are cogni- zable only by a military court, and not by a court of law." L. R., 8 Q. B., 271. But after referring to "the eloquent and powerful reasoning o£ L. C. J. Cockburn in Dawkins v. Lord F. Panlet," the court goes on to ex- press its satisfaction that the question " is yet open to final consideration before a court of the last resort." However, in a court of first instance, at all events, it must now be taken to be the law that the civil courts of common law can take no cognizance of purely military or purely naval matters. (Sutton V. Johnstone, IT. R., 49S; Grant v. Gould, 2 Hen. Bl., 69; Barwis V. Keppel, 3 Wils., 314); but wherever 'the civil rights of a person in the military or naval service are affected by any alleged oppression or injus- tice at the hands of his superior officers or any illegal action on the part of a' military or naval tribunal, there the civil courts may interfere. Re Mansergh, 1 B. & S., 400; 30 L. J., Q. B., 296; Warden v. Bailey, 4 Taunt., 67; Odgers on L. & S., 195. But private letters written by the command- ing officer of the regiment to his immediate superior on military matters, qs distinct from his official reports, are not absolutely privileged ; but the question of malice should be left to the jury. Dickson v. Earl of Wilton, 1 F. & P., 419; Dickson v. Cambermere, 3 F. & F., 527. If this be not the distinction, these cases must be taken to be overruled by the cases cited above. L. R, 8 Q. B., 273-3. 2. By a general order it was declared that all unemployed Indian officers ineligible for public employment, by reason of misconduct or physical or mental inefficiency, should be removed to the pension list. Under this Order the plaintiff was removed to the pension list and a notification of such removal was published in the " Indian Gazette." Held, on demurrer, that no action lay either for the removal of the plaintiff or for the official publi- cation of the fact, although special damage was alleged. Grant v. Secretary of State for India, 2 O. P. D., 445; 35 W. R., 848; 37 L. T., 188; Doss v. QUALIFIED PRIVILEGE SUBJECT CLASSIFIED. 4t5 Secretary of State for India in Council, L. E., 19 Eq., 509; 28 W. E., 773; 33 L. T., 294; Oliver v. Lord Wm. Bentinck, 3 Taunt., 456. 3. A military court of inquiry may not be strictly a judicial tribunal, but where such court has been assembled under the orders of the general tx>mmanding in chief, in conformity with the queen's regulations for the government of the army, a witness who gives evidence thereat stands in the same situation as a witness giving evidence before a judicial tribunal, and all statements made by him thereat, whether orally or in writing, having reference to the subject of the inquiry, are absolutely privileged. Dawkins V. Lord Eokeby, L. E., 7 H. L., 744; 45 L. J., Q. B., 8; 33 W. E., 981; 33 L. T., 196; Exch. Ch., L. E., 8 Q. B., 255; Goffin v. Donnelly, 6 Q. B. D., 307; 50 L. J., Q. B., 303; 29 W. E., 440; 44L. T., 141; 45 J. P., 439; Keigh- ley V. Bell, 4 F. & F., 763; Home v. Bentinck, 3 B. & B., 130; 4 Moore, 563. § 62. Second, the Qualified Prmlege — The Subject Clas- sified. — In the less important matters, however, the interests and welfare of the pubhc do not demand that the speaker should be freed from all responsibility, but merely require that he should be protected so far as he is speaking honestly for the common good. In these cases the privilege is said not to be absolute but qualified ; and a party defamed may recover damages notwithstanding the privilege if he can prove that the words were not used in good faith, but that the party availed himself of the occasion wilfully and knowingly for the purpose of defaming the plaintiff. In this class of cases it will be con- venient to divide the occasions into three classes : (1) Where the circumstances of the occasion cast upon the defendant the duty of making a communication to a certain other person to whom he makes such communication in the lona fide performance of such duty. (2) Where the defendant has an interest in the subject-mat- ter of the communication, and the person to whom he com- municates it has a corresponding interest. (3) Keports of the proceedings of courts of justice and leg- islative bodies. First Class — Qualified Privilege. § 63. Where the Circumstances Cast upon the Party the Duty of Making the Communication. — In those cases where the circumstances of the occasion cast upon a party the duty of making a communication, the duty may be either one which 476 PRIVILEGED COMMUNICATIONS. the party owes to society or one which he owes to himself or his family. Communications made in pursuance of the duty owed to society are: (1) characters of servants; (2) confidential com- munications of a private nature; (3) information as to the mis- conduct of others and crimes ; and (4) charges against public oflBcers. Communications made in pursuance of the duty owed to his family or to himself are: (1) statements necessary to protect his private interests, and (2) statements provoked by other parties. § 64. Character of the Duty Cast upon the Party Commu- nicating. — -The duty referred to need not be one binding at law: an}' moral or social dutj' of imperfect obligation will be suflScient.^ And it is sufficient if the defendant honestly be- lieves that he has a duty to perform in the matter, although it may turn out that the circumstances were not such as he reasonably concluded them to be.^ It is a question of good faith, in determining which the law looks at the circumstances -of each case as they presented themselves to the mind of the defendant at the time; the presumption being that he has been guilty of no laches, and did not wilfully shut his eyes to any source of information. If there were means at hand for ascer- taining the truth of the matter, of which the defendant neg- lected to avail himself, and chose rather to remain in ignorance when he might have obtained full information, there can be in law no pretense for any claim of privilege. The defendant must, at the date of the communication, im- plicitly believe in its truth. If a man knowingly makes a false chargQ against his neighbor he cannot claim privilege. It never can be his duty to circulate lies.* CocJcburn, O. J.: "For to entitle matter, otherwise libelous, to the proteption which attaches to communications made in the fulfillment of a duty, bona fides, or, to use our own equiva- lent, honesty of purpose, is essential ; and to this again two things are necessary: (1) that the communication be made not merelyin the course of duty — that is, on an occasion which iHarrison v. Bush, 5 E. & B., 344; S.), 392; 33 L. J., C. P., 89; 12 W. R., 25 L. J., Q. B., 25. 153; 9 L. T., 483; 10 Jur. (N. 8.), 470. 2 Whiteley v. Adams, 15 C. B. (N. ' Briggs v. Garrett, 111 Pa. St., 404. THE SUBJECT-MATTEJi MANNER OF COMMUNICATION. 477 would justify the making it — but also from a sense of duty; (2) that it be made with a belief of its truth." ' § 65. The Party Must ttuard against Exaggerated Ex- pressions. — Where a person, acting under a strong sense of duty, makes a communication which he reasonably believes to be true, he must be careful not to be led away by his honest indignation into exaggerated or unwarrantable expressions. The privilege extends to nothing which is not justified by the occasion.^ § 66. Tlie Subject-matter — Manner of Communication. — Where the expressions employed are allowable in all respects, the manner of publication may take them out of the privilege. Confidontial communications must not be shouted across the street for all passers-by to hear. Nor should they be trans- mitted by post-card or telegram, which others may read. They should be sent in a letter properly sealed and fastened. If the words be spoken, the defendant must be careful in whose pres- ence he speaks. He should choose a time when no one else is by except those to whom it is his duty to make the statement. It is true that the accidental presence of some third person, unsought by the defendant, will not take the case out of the privilege ; but it would be otherwise if the defendant purposely sought an opportunity of making a communication prima facie privileged in the presence of the very persons who were most likely to act upon it to the prejudice of the plaintiff.' § 67. When the Communication Exceeds the Privilege. — If the comnfUnication has been made in good faith, fairly, im- partially, without exaggeration or the introduction of irrele- vant defamatory matter, the communication is privileged. But it must be remembered that although the occasion may be privileged, it is not every communication made on such occa- sion that is privileged. It is not enough to have an- interest or duty in making a communication ; the interest or duty must be shown to exist in making the communication complained of.* A communication which goes beyond the occasion ex- ceeds the privilege. 1 Dawkins v. Lord Paulet, L. R., 5 Jur. (N. S.), 18; Simmonds v. Dunne, Q. B., p. 103. Ir. R., 5 C. L., 358. 2 Warren v. Warren, 1 C, M. & R., ' Odgers on L, & S., 301. 251; 4 Tyr., 850; Huntley v. Ward, 6 * Dowse, B., 6 L. R., Ir., p. 269. C. B. (N. S.), 514; 1 F. & F., 553; 6 478 PEIVILBGED COMM0NICATIONS. The first two classes are sometimes stated as one, and oases frequently occur which seem to come under either or both of them. But the distinction made'by an English writer between them is this : " In the first class of cases the defendant makes the commu- nication, perhaps to an entire stranger, generally to one with whom he has had no previous concern ; and he does so because he feels it to be his duty so to do. The person to whom he makes the communication is under no corresponding obliga-, tion, and generally has no common interest with the defend- ant in the matter. The defendant's duty would be the same to whomsoever the communication had to be made." " In the second class of cases,, however, there must have been an intimate relation or connection already established between the defendant and the person to whom he makes the communication, and it is because of this relationship that the communication is privileged. The same words, if uttered to another person with whom the defendant had no such connec- tion, would not be privileged." ' The question whether the communication is or isiiot privi- leged by reason of the occasion is for the court, especially where there is no dispute as to the circumstances under which it was made.^ § 68. Province of the Court and the Jury — Practice.^- If there exist any doubts as to these circumstances, the court may direct the jury to find a special verdict as to what the circum- stances in fa,ct were, or what the defendant honestly believed them to be, if that be the point to be determined ; and on their, findings the court may determine whether the occasion was privileged or not. If the occasion is not privileged, and the words are defamatory and false, the court will instruct the jury, if they so find, to return a verdict for the plaintiff. If the occasion is absolutely privileged, judgment will be given for the defendant. If, however, the occasion is one of qualified privilege only, the burden is cast upon the plaintiff of prov- ing actual malice on the part of the defendant ; and if he gives no such evidence, it is the duty of the court to nonsuit him, or to direct a verdict for the defendant. If, however, he does lOdgws on L. & S., 198. 420; 6 Moore, P. C. C. (N, SX 18; 30 estate V. Griffith, L. R., 2 P. C, L. T., 197. COMMDNICATIOSS IN DISCHABGE OF A DUTY. 479 give any evidence of malice sufficient to go to the jury, then it is a question for the jury whether or not the defendant was actuated by malicious motives in the publication.of the defam- atory words. The laws of the different states, however, in relation to the practice in courts having jurisdiction in actions for defamation, especially in relation to general and special verdicts and in- sti"uctions to juries, are somewhat at variance, and it is impos- sible to give any more than a rule founded upon general prin- ciples. Communications Volunteered in the Discharge of a Duty. § 69. (1) A Confidential Relation Existii^ between the Parties. — It is often a difficult question to determine in what cases a party is privileged in going of his own accord to the person concerned and giving him information which is not asked for. In one class of cases it is clear that it is not only excusable but it is imperative on a person to do so; and that is where there exists between the parties such a confidential relation as to throw on the party the duty of protecting the interests of the persons concerned. Such a relationship exists between husband and wife, father and son, brother and sister, guardian and ward, master and servant, principal and agent, solicitor and client, partners or intimate friends, wherever any trust or confidence is reposed by the one in the other. .It will be the duty of the one to volun- teer information to the other, whenever he could justly re- proach him for his silence if he did not volunteer such infor- mation.' §70. The Rule Stated by Chief Justice Shaw.— Where words imputing misconduct to another are spoken by one hav- ing a duty to perform, and the words are spoken in good faith and in the belief that it comes within the discharge of that duty, or where they are spoken in good faith to those who have an interest in the communication and a right to know and act upon the fact stated, no presumption of malice arises from the speaking of the words, and therefore an action can be maintained in such cases without proof of express I Odgere on L. & S., 211. •iSO PKIVILEGED COMMUNICATIONS. malice. If the occasion is used merely as a means of enabling the party uttering the slander to indulge his malice, and not in good faith to perform a duty or make a communication useful and beneficial to others, the occasion will furnish no excuse.' § 71. Manner of Conveying the Communication. — Merely labeling a letter " private and confidential," or merely stating "I speak in confidence," will not make a communication con- fidential in the legal sense of that term if there be in fact no relationship between the parties which the law deems confi- dential.^ § 72. Tlie Law Illustrated — Examples and Applications.— '• It is clearly the duty of my steward, bailiff, foreman or house- keeper, to whom I have intrusted the management of my lands, business or house, to come and tell me if they think anything is going wrong, and not to wait till my own sus- picions are aroused and I myself begin asking questions. So my family solicitor may voluntarily write and inform me of anything which he thinks it is to my advantage to know with- out waiting for me to come down to his office to inquire. But it would be dangerous for another solicitor, whom I had never employed, to volunteer the same information ; for till I retain him in the matter there is no confidential relation existing be- tween us. So a father, guardian or an intimate friend may warn a young man against associating with a particular indi- vidual, or may warn a lady not to marry a particular suitor; though in the same circumstances it niight be considered offi- cious and meddlesome if a mere stranger gave such a warning. So if the defendant is in the army or in a government office it would be his duty to inform his official superiors of any seri- ous misconduct on the part of his subordinates, for the de- fendant is in some degree answerable for the faults of those immediately under his control."' §73. Illustrations — Digest of American Cases.— 1. statements contained in an affidavit presented to a superintendent of schools for the purpose of preventing a teacher's license being granted to a 1 Bradly v. Heath, 13 Pick. (Mass.), 3 Odgers on L. & S., 211 ; BeUe v. 163; Skeekell v. Jackson, 10 Cush. Parke, 10 Ir. C. L. R., 284; 11 Ir (Mass.), 36. 0. L. E., 413. 2Krebs v. Oliver, 78 Mass., 343; Pieton V. Jackman, 4 C. & P., 257. ILLUSTRATIONS — DIGEST OF ENGLISH OASES. 481 particular person, charging such person with improper conduct, .are privi- leged and not actionable unless untrue and maliciously made. Weiman v. Maybie et al., 45 Mich., 484; 8 N. W. Rep., 465. But statements that a man had been imprisoned for larceny, made to the family of a woman he is about to marry, by one who is no relation of either, and not in answer to inquiries, are not privileged. Krebs v. Oliver, 78 Mass., 339. And so a let- ter by a mere volunteer, containing defamatory statements as to a man's character, not known to be true, written for the purpose of breaking oEf relations which may lead to his marriage with a friend, but not a near rel- ative of the writer, is not privileged. Defamatory words do not become privileged merely because uttered in the strictest confidence by one friend to another, or because uttered upon the most urgent solicitation, where the person uttering them is under no duty to utter them, and has no interest to subserve by uttering them, and the person to whom they are addressed has no interest or duty to hear and no right to demand that he may hear them. Byam v. Collins, 19 N. Y. S. R, 581 ; 19 N. E, Rep., 75. 2. The defendant was one of the selectmen of Brookline town. At a public town meeting he was requested to see that none voted improperly. While he was at the meeting and acting in his official capacity as select- man he observed that in the manner of the plaintiff's voting which led him in good faith to believe that the plaintiff had actually put in the ballot-box more votes than one at the same time, and he uttered the words complained of: " Bradley has put in two votes." It was held that an action for slander could not be maintained. Bradley v. Heath, 29 Mass., 163. § 74. Digest of English Cases. — 1. The defendant and Tinmouth were joint owners of The Robinson, and engaged the plaintiff as master ; in April, 1843, defendant purchased Tin- mouth's share ; in August, 1843, defendant wrote a business letter to Tin- mouth, claiming a return of £150, and incidentally libeled the plaintiff. Held a privileged communication, as the defendant and Tinmouth were stUl in confidential relationship. Wilson v. Robinson, 7 Q. B., 68; 14 L. J., Q. B., 196; 9 Jur., 736. 2. The defendant, a linen-draper, dismissed his apprentice without suffi- cient legal excuse ; he wrote a letter to her parents, informing them that the girl would be sent home, and giving his reasons for her dismissal. Ctockburn, C. J., held this letter privileged, as there was clearly a confiden- tial relationship between the girl's master and her parents. James v. Jolly, Bristol Summer Assizes, 1879; Fowler and wife v. Homer, 3 Camp., 294. So, of course, a letter to the girl herself, stating in detail the faults, her late employer found with her. R. v. Perry, 15 Cox, C. C, 169. But a com- plaint of a man's conduct is not privileged if addressed by the employer to the man's wife. Jones v. Williams, 1 Times L. R., 573. 3. My regular solicitor may unasked give me any information concerning third persons of which he thinks it to my interest that I should be in- formed, even although be is not at the moment conducting any legal pro- ceedings for me. Davis v. Reeves, 5 Ir. C. L. R., 79. 4. A solicitor who is conducting a case for a minor may inform his next friend of the minor's misconduct. Wright v. Woodgate, 2 C, M, & R., 573; 1 Tyr. & CJ., 12; 1 Gale, 329 (approved in L. R., 4 P. C, 495). 81 482 FEIVILEGED COMMnNICATIONS. 5. Eumors being in circulation prejudicial to the character of the plaint- iff, a dissenting minister, he courted inquiry and appointed A. to sift the matter thoroughly. It was agreed that the defendant should represent the malcontent portion of the congregation and state the case against the plaintiff to A. A confidential relationship being thus established between the defendant and A. , all that took place between them, whether by word of mouth or in writing, so long as the inquiry lasted and relative thereto, was held to be privileged. Hopwood v. Tborn, 8 C. B., 393 ; 19 L. J., C. P., 94; 14 Jur., 87. 6. A report by the comptroller of the navy to the board of admiralty upon the plans and proposals of a naval architect is clearly privileged. Per Grove, J., in Henwood v. Harrison, L. R, 7 C. P., 606; 41 L. J., C. P., 206; 20 W. E., 1000; 36 L. T., 938. 7. A time-keeper employed on public works on behalf of a public depart- ment wrote a letter to the secretary of the deparcaient imputing fraud to the contractor. Blackburn, J., directed the jury that if they thought the letter was written in good faith and in the discharge of the defendant's duty to his employers it was privileged, although written to the wrong person. Scarll v. Dixon, 4 F. & F., 250. 8. A relation or intimate friend may confidentially advise a lady not to marry a particular suitor and assign reasons, provided he really believes in the truth of the statements he makes. Todd v. Hawkins, 2 M. & Rob. , 20 ; 8 C. & P., 88; Brskine, amicus curies, 3 Smith, 4; Adams v. Coleridge, 1 Times L. R., 84. 9. The officers and men of the garrison of St. Helena gave an entertain- ment at the theater at which considerable noise and disturbance took place. The commanding officer was informed that this was caused by the plaintiff, who was said to have been drunk. The plaintiff was an assistant master in the government school. The commanding officer reported the circum- stances to the colonial secretary of the island, and the plaintiff was in con- sequence suspended from his appointment. Verdict for the plaintiff dis- approved and set aside, and judgment arrested. Stace v. Griffith, L. R., 2 P. C, 436; Moore, P. C. C. (N. S.), 18: 20 L. T., 197; Sutton v. Plumridge, 16L. T., 741. 10. It is the duty of an under-master in a college school to inform the head-master that reports have been for some time in circulation imputing habits of drunkenness to the second-master. Hume v. Marshall (Cockburn, C. J.), 42 J. P., 136. But where, after an election, the agent of the defeated candidate wrote a letter to the agent of the successful candidate, asserting that the plaintiff and another (both members of the successful candidate's committee) had bribed a particular voter, the latter was held not to be privileged, as there was no confidential relation existing between the two agents. Dickeson v. Hilliard and another, L. R., 9 Ex., 79; 43 L. J., Ex., 37; 23 W. R., 872; 30 L. T., 196. 11. A circular letter, sent by the secretary to the members of a society for the protection of trade against sharpers and swindlers is not a privileged communication. Getting v. Foss, 3 C. & P., 160; Goldstein v. Foss, 2C & P., 253; 6 B. & C, 15i; 4 Bing., 489; 3 Y. & J., 146; 4 D. & E., 197; 1 M. &P., 403; Humphreys v. Miller, 4 C. & P., 7. But see Waller v.. Loch KELATION OF PARTIES — VOLTJin'AET COMMUNICATIONS. 483 (C. A.), 7 Q. B. D., 619; 51 L. J., Q. B., 274; 30 W. R., 18; 45 L. T., 243; 46 J. P., 484; Clover v. Royden, L. R., 17 Eq., 190; 43 L. J., Ch., 665; 22 W. R., 254; 29 L. T., 639. § 75. No Confidential Relation Existing between the Par- ties. — Where the party does not stand in any confidential re- lation to the person interested, it is difficult to define what circumstances will be sufficient to impose on him the duty of volunteering^, the information. The rule of law applicable to such cases cannot be better expressed than in the following passage: Blackburn, J. " Where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he lonafide&nd. without malice does tell them it is a privileged communication." ^ But the difficulty is in any given case to determine whether it had or had not become right in the interests of society that the party should act as he did. And this is a question rather of social morality than of law.^ § 76. Th« Doctrine of Yoluntary Communications Dis- cussed. — I learn that one of my tradesmen is about to supply goods on credit to a man whom I know to be practically in- solvent; may I warn him not to do so? Is it right, in the interests of society, that I should tell him what I know, or am I to stand by and see him lose his money ? In England, in the days of Elizabeth, it was considered clear law that no action would lie for such a caution given as "good counsel." ' So it was in the days of George III." But in 1838 Lord Abinger, C. B., held that no such communication should be volunteered ; the party must wait till the tradesman applies to him for ad- vice : " If the defendant had been asked as to the plaintiff, and had said what he did without malice, no action would have been maintainable; but as he made the communication without being asked in any way to do so, he is liable if the words reflect on the character of the plaintiff as a tradesman." ^ In 1846 * the court of common pleas was equally divided on this question. iDavies v. Snead, L. R., 5 Q. B., 'Vanspike v. Cleyson, Cro. Eliz., 611; 39 L. J., Q. B., 203; J33 L. T., 541; 1 Roll. Abr., 67. 609; Waller v. Loch (C. A.), 7 Q. B.