CJorn^U Haul i'rlyflol IGibtarjj Cornell University Library KF 1266.N54 1898 The law of libel and slander In civil an 3 1924 019 249 063 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/cu31924019249063 THE LAW Off LIBEL AKD SLANDER m CIVIL A.-KD CEIMII^AL OASES AS ADMINISTERED IN THE COURTS OF THE UNITED STATES OF AMERICA. BY MARTIN L. JEWELL, COCKSELOB AT LAW: Adthob op " The Law or Malicious Prosecution and False Imprisonment," "Saokbtt's Eetised Instructions to Juries," "A Treatise Upon the Law of Ejectment," etc. SECOBTD EDITIOIT. CHICAGO: CALLAGHAN AND COMPANY. 1898. Entered aooording to Act of Congress, in the year eighteen hundred and ninety, by MAETICT L. NEWELL, In the oflSce of the Librarian of Congress, at Washington, D. C. Entered according to Act ot Congress, in the year eighteen hvmdred and ninety-^ight, by MAETIN L. NEWELL, In the ot&ce of the Librarian of Congress, at Washington, D. CI i STATE JOURNAL PRINTING COMPANY, Printers ajto STEREOTYMais, lunisoK, WIS. PKEFACE TO THE FIRST EDITION. 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 the use of those members of the profession who take pride in knowing something of its history as well as of the law itself. Following this will be found 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 ; scandalum 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 imputation, 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 mam- 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 coUecr tion of precedents both under the common law and the modern English teystems. », In the chapter upon evidence the law has been given both as to the plaintiff's proofs under pleas of the general issue and justification in actions iv PEEFAOE. 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 present 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. PREFACE TO THE SECOND EDITION. The general favor with which the first edition of this work has been re- ceived by the profession throughout the country has been deemed suffi- cient to warrant the author in the preparation of a second edition. In the new edition the principal decisions of the American and English courts upon the questions involved, rendered since the publication of the first edition, are cited in support of the text. New sections have been added, treating upon the subject of restraining the publication of libels by injunction, with citations of, and extracts from, all the American and English decisions upon this question. The question of new trials for inadequacy of damages is also discussed. New sections upon the publication of libels by letters, telegrams, postal cards, etc., are also added to this edition of the work. M. L. NEWELL. Springfield, HI., November 1, 1897, TABLE OF CONTENTS. CHAPTER I. A BRIEF HISTORICAL REVIEW OF THE LAW OF DEFAMATION. Ancient Laws. § 1. The Mosaic Laws 2 3. The Laws of Ancient Egypt 4 3. The Laws of the Allien ians 5 4. The Roman Law — The Twelve Tables 6 5. The Progi'ess 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 13. The DiflBculties of the Civil Law 15 18. 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 31. Justices of the Peace 25 22. The Rights of Personal Property Include those of Reputation 25 23. Concluding Remarks 25 American Law of Defamation. 24. History of the American Law Identical with the English Law 26 35. An Early Colonial Statute 38 CHAPTER II. EARLY ENGLISH AUTHORITIES. § 1. Early English Authorities 30 2. The Subject Illustrated 30 Vi TABLE OF CONTENTS. CHAPTER III. THE AMERICAN LAW OF DEFAMATION. § 1. Defamation Defined and Classified — Written Defamation, Libel — Oral Defamation, Slander — But Different Methods of Accomplishing the Same Wrong 33 2. Libel — Definitions — Discussion of the Subject 33 8. Other Definitions — Addison, Bentham, Chief Justice Booth, British Encyclopedia, Blatchford, J., Bouvier, Capel Loft, Sir Edward Coke, Justice Daniel, Alexander Hamilton, Sar- geant Hawkins, Billiard, Holt on Libel, Lord C. J. Holt, Minshsei, Chief Justice Parsons, Eussell on Crimes, Sell's Dictionary of the World's Press, Judge Story — Conclusion . 34 4. Slander Defined — The Lexicographers: Bouvier's Law Dic- tionary — Nature of the Accusation — The Falsity of the Charge — The Mode of Publication — The Occasion — The Malice or Motive. Definitions: Bacon's Abridgment, Ja- cob's Law Dictionary, Abbott's Law Dictionary, Rapalje and Lawrence's Law Dictionary, Brown, Burrill, Wharton, Tomlin. Slander Defined — The Commentators : Blaokstone, Hilliard, Kent — Conclusion 37 5. Slanderous Words Classified 41 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 41 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 41 3. Defamatory words falsely spoken of a person which impute to the party unfitness to perform the duties of an office or an employment of profit, or the want of integrity in the discharge of the duties 6f such an office or employment. 41 4. Defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade 41 5. Defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party special damage 41 CHAPTER IV. LIBELS — DEFAMATION BY WRITING, PRINTING, PICTURES, EF- FIGIES AND OTHER REPRESENTATIONS. § 1. Libels 43 2. Illustrations — American Cases: A Wisconsin Case, Massuere v. Dickens, 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 Rochester Printing Co., 36 Hun, 206. A Mas- sachusetts Case, Clark v. Binney, 2 Pick., 112 43 TABLE OF CONTENTS. Vli § 3. What is Libelous — Illustrations — Digest of American Cases : 1. Generally. II. Publications in Newspapers — Publica- tions in Books ' and Pamphlets, etc.— Posting Placards, Handbills, etc. — Entries in Books of Corporations, Associa- tions, etc. — Letters, etc. — Effigies, etc. — General Digest of English Cases 46 4. What is Not Libelous — Illustrations — Digest of American Cases — Digest of English Cases 61 Libels Classified. 5. Libels on Private Persons 66 I. Libels which Impute to a Person the Commission of a Crime. ■6. The Subject Defined 67 7. Illustrations — Digest of English Cases 67 II. Libels which Hare a Tendency to Injure a Person in His Office, Profession, Calling or Trade. 9. The General Doctrine 68 9. Libels on Persons in Office 69 10. Illustration — An Old English Case 69 11. Distinction between Libel and Slander in England 70 13. Digest of American Cases 70 13. Digest of English Cases — Barristers; Medical Men; News- paper Men 73 14. Libels on Merchants and Traders , 74 15. Illustrations — Digest of American Cases — Digest of English Cases 74 III. Libels which Hold a Person up to Scorn and Ridicule. 16. TheLawStated 77 17. Illustrations — Digest of American Cases — Digest of English Cases 78 18. Libels on Official Persons and Candidates for Office 81 19. Illustrations — Digest of American Cases . . .' 81 OHAPTEE V. SLANDER — ORAL DEFAMATION. § 1. Slander Defined 84 2, Dlustrations — Digest of American Cases ; (1) Words Action- able in Themselves. (3) Words Not Actionable in Them- selves : f.. 84 CHAPTER YL IMPUTATION OF CRIME. § 1. Historical Review of the Law 93 2. The English Cases — The General Rules 94 Viii TABLE OF CONTENTS. § 3. Stanhope's Case. 94 4. Smale's Case ^^ 5. Sir Harbert Crofts' Case 94: 6. Chief Justice Holt's Rule — Another Rule 95 7. Ogden's Case 95 8. Button's Case 96- 9. The English Rule 9& 10. The American Rule 97 11. Extent of the Rule 9a 12. Moral Turpitude Defined '. 98 13. General Illustrations — Digest of American Cases 99- 14. Digest of English Cases 101 15. The Substantial Cause of the Action lOa 16. The Doctrine Stated by Judge Oooley lOa I. Analysis of the Subject. 17. Nature and Character of the Crime Imputed 103 18. Illustrations — Digest of American Cases 104 19. Digest of English Cases 106 30. Imputations Containing No Definite Charge — Suspicions.... 106 31. Illustrations — Digest of Amei-ican Cases 107 33. Digest of English Cases 107 33. Degree of the Ofifense — Offenses Punishable by Fines, etc., Only lOS 34. Illustrations — Digest of American Cases 108 35. Digest of English Cases IDS 26. Imputations Relating to the Time of the Commission of the Crime Charged lOQi 27. Illustrations — Digest of American Cases 109 38. Digest of English Cases 110 39. Imputations as to the Place of Commission — Charge of a Crime Committed Out of the State 110 30. The Imputation May be General Ill 31. Illustrations — Digest of American Cases Ill 33. Digest of English Cases 112 33. Imputation of Impossible Offenses 112 34. Illustrations — Digest of American Cases 113 85. Digest of English Cases H^ II. Particular Offenses. 36. Larceny — The Offense Defined — Characteristics of the Of- fense: (1) Wrongful Taking. (3) The Removal. (.8) The Criminal Intent -y^^ 37. The Wrongful Taking " ..." j !!..'.*.'.!.*.'!!!!!!! ! 114 38. The Carrying Away -j^j^ 89. The Criminal Intent ' " -^je 40. Larceny Restricted to Personal Property — Rule of the Com- mon Law j.„ 41. Statutory Modifications of the Rule 117 TABLE OF CONTENTS. IX 14'! 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 Efeect 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 131 51. The General Rule — Examples 181 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 138 55. Conclusions 133 56. Words Charging the Commission of the Offense : (1) Without a Colloquium — American Cases — English Cases. (3) With a Colloquium — American Cases 134 57. Gfeneral 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 138 60. Homicide — The Offense Defined — It is Felonious, when 128 61. The Moral Effect of the Charge 129 63. Words Imputing the Commission of the Offense — American Cases — English Cases 139 63. Manslaughter — Defined 181 64. Words Charging the Commission of the Offense 131 65. Abortion — Defined 131 66. The Moral Effect of the Charge 181 67. Words Imputing the Commission of the Offense — American Cases 133 68. Accessory — Words Imputing the Offense 133 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 73. Keeping a Bawdy-house — Illustrations — American Cases — English Cases 135 73. Bigamy — The Offense Defined 135 74. Words Imputing the Commission of the Offense — American Cases — English Cases 135 75. Blackmailing — Statutory Offense 137 76. Bribery — The Offense Defined 137 77. Bribery of Voters 137 78. Burglary — The Offense Defined 138 79. The Moral Effect of the Charge 138 X TABLE OF CONTENTS. § 80. Words Imputing the Commission of the Offense — American Cases — English Cases 1^^ 81. Embracery Defined — Falsely Charging the Commission of the Offense is Actionable ^39 83. Cheating — The Oftense Defined — Words Imputing the Com- mission of this and Kindred OfEenses 139 83. Counterfeiting — The Offense Defined 140 84. Words Imputing the Commission of the Offense 140 85. Embezzlement — The Offense Defined 140 86. Words Imputing the Commission of the Offense — American Cases — Eoglish 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 143 90. Incest — The Offense Defined 143 91. The Moral Effect of the Charge 143 93. Words Imputing the Commission of the Offense — Amei-ican 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 , 146 98. Robbery — The Offense Defined 147- 99. The Moral Effect of the Charge 147 100. 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 -149 104. Soliciting Another to Commit an Offense — Definition 150 105. Words Imputing the Commission of the Offense — American Cases — English Cases 150 106. Subornation of Perjury J51 107. Words Imputing the Commission of the Offense — American Cases — English Cases 151 108. Watering Milk — The Charge, when Defamatory. . , 151 CHAPTEE YII. IMPUTATION OF A WANT OF CHASTITY, OR THE COMMISSION OF ADULTERY OR FORNICATION. § 1. A Result of Statutory Enactments ' 153 2. Adultery — The Offense Defined ''. I53 TABLE OF CONTENTS. XI § 3. Fornication — The Offense Defined 153 4. A Prostitute — The Term Defined 154 6. Certainty of the Imputation 155 6. Illustrations — Digest of American Cases 155 7. Suflaciency 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 be Spoten of the Person in His Office, Pro- fession or Trade W8 8. 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 Pu blished while the Party Holds the Office, Practices His Profession or Carries on His Trjide 175 10. Requisites of the Imputation 176 11. Imputation upon the Integrity of Persons Holding Offices of Trust 176 12. 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 Kno%vledge 183 16. Illustrations — Digest of American Cases 183 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 22. Digest of English Cases 186 23. Clergymen and Ministers of the Gospel • • 186 24. Illustrations — Digest of American Cases 187 25. Digest of English Cases 188 26. Medical Men — Physicians — Surgeons — Pharmacists 189 27. The Law Stated ^^* ■Sii TABLE OF CONTENTS. ^ 28. Illustrations — Digest of American Cases 189 29. Digest of English Cases ^^^ 30. Other Professions and Trades — Architects, Dentists, Teachers, Surveyors, Mechanics, and the Like 191- 81. Illustrations — Digest of American Cases 193 S2. Digest of English Cases 192 83. Imputations upon the Credit of Merchants and Traders 192 34. The Extent of the Rule 192 S5. 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 CHAi'TEE, IX. DEFAMATORY WORDS IMPUTING DISEASE, ETC. § 1. The Law Stated 198 2. The Law Stated by Metcalf , J 199 3. American Illustrations 199 4. English Illustrations 200 6. The Rule of Construction 200 CHAPTER X. SCANDALUM MAGNATUM. §1. The English Law 201 2. Illustrations — Digest of English Cases and Ancient Statutes. . 201 CHAPTER XI. SLANDER OF PROPERTY. § 1. Slander of Property 203 2. Nature of the Action 204 3. Requisites of the Action 204 (1) The Words Must be False 205 (2) The Words Must be Maliciously Published 205 (3) A Pecuniary Loss Must Occur 205 4. The Plaintiff's Interest or Title 206 6. The Assertion of a Claim of Title 206 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. Slander of the Quality of Property — Illustrations — Digest of American Cases — Digest of English Cases 217 10. Slander of Title of Letters Patent — Copyrights and Trade- marks — Illustrations — Digest of American Cases — Digest of English Cases 224 TABLE OF CONTENTS. XIU CHAPTER XII. PUBLICATION OF DEFAMATORY MATTER. § 1. Publication Defined 227 3. What Amounts to a Publication 228 3. Illustrations — Digest of Amej-ioan Cases 228 4. Digest of English Cases 233 5. Communications by Telegrams, Postal Cards, etc 233 6. Illustrations — Digest of American Cases 233 7. Digest of English Cases 234 8. Publication by Letters 234 9. Illustrations — Digest of American Cases 235 10. Digest of English Cases 286 11. Publication to Third Persons 237 13. Illustrations — Digest of American Cases 338 18. Digest of English Cases 238 14. Husband and Wife as Third Persons 239 15. A Libel Deemed Published, when 239 16. Illustrations — Digest of American Cases 239 17. Digest of English Cases 240 18. Joint and Saveral Liability 240 19. The Composer Not Liable Without Publication 241 20. The Law Stated by Best, C. J 241 21. niustrations — Digest of English Cases 343 23. Sale and Delivery of Libelous Compositions 243 23. Every Sale or Delivery a Separate Publication 343 24. The Authof of a Slander Not Responsible for Voluntary and Unjustifiable Repetitions 244 25. Publication when by Agent 344 26. Dlustratidns — Digest of American Cases 245 37. Digest of English Cases 246 28. Manner of Publication 246 29. Manner of Sale and Delivery 246a 30. Injunctions Restraining the Publication of Defamatory Matter 346a 31. Illustrations — Digest of American Cases , 246a 33, Digest of English Cases 346& CHAPTEE XIII. CERTAINTY OF IMPUTATION. § 1, The Subject Classified 248 2. Illustrations — Digest of American Cases 348 3. The Defamation Must be Apparent 349 4 Arson — Illustrations — Digest of American Cases 349 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 b Xiv TABLE OF CONTENTS. § 9. Embezzlement — Digest of American Cases — Digest of Eng- lish Cases 250 10. False Pretenses — Digest of American Oases — Digest of Eng- lish Cases 251 11. Forgery — Digest of American Cases — Digest of English Cases 253 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. Receiving Stolen Goods — Digest of English Cases 256 16. Treason — 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 S3. Digest of English Cases 259 24. Defamatory Words Applicable to Different Persons 259 25. EfSgies, 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 80. The Imputation Need Not be in Positive Language 264 31. The Law Stated by Chief Justice Shaw 264 33. Illustrations — Digest of American Cases 265 83. Digest of English Cases 265 34. The Defamatory Charge — How Conveyed 266 85. First, by Adjective Words — Illustrations — Digest of Amer- ican Cases 266 86. Digest of English Cases 266 87. Second, by a Sentence in the Form of a Question — Illustra- tions — Digest of American Cases 267 88. Digest of English Cases 267 89. Third, in a Question and Answer — Illustrations — Digest of American Cases 267 40. Fourth, by Repeating Gossip — Illustrations — Digest of Amer- ican Cases 268 41. Digest of English Cases 268 42. Fifth, by Signs and Gestures 268 43. Intention Indicated by Signs, etc 269 CHAPTER 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 g 3. The Defense 271 4. Illustrations — Digest of American Cases 271 5. Digest of English Cases 373 6. Second, "Words Ambiguous but Susceptible of an Innocent Meaning 374 7. Dlustrations — Digest of American Cases 275 8. Digest of English Cases 275 9. Third, Meaningless Words — Slang Expressions — Words in a Foreign Language or Used in Some Local, Technical or Customary Sense 376 10. Words in Foreign Languages 377 11. Slang Expressions — Provincial or Obsolete Expressions 277 13. Dlustrations — Digest of American Cases 278 13. Digestof EnglishCases 378 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. Province of the Court and Jury 281 17. Duty of the Jury in Determining the Meaning 281 18. Illustrations — Digest of American Cases 381 19. Digestof English Cases 283 20. Words Spoken Ironically 3S6 31. Illustrations — Digest of American Cases 286 23. Digest of English Cases 286 33. Fifth, Words Obviously Innocent 386 84. Illustrations — Digest of American Cases 287 35. Digest of English Cases 387 CHAPTEK XY. INTERPRETATION OF DEFAMATORY LANGUAGE. § 1. The General Rule 390 2. A Generel Rule of Construction — Chief Justice Shaw 290 8. The Province of the Court 290 4 The Duty of the Court and Province of the Jury 290 5. The Rule Stated by McAllister, P. J 291 6. niiistrations — Digest of American Cases 391 7. Digest of English Cases 292 8. Defamation Connected with Extrinsic Matters — Proof 293 9. Defamatory Words Explained with Reference to Particular Transactions 392 10. Illustrations — American Cases : A New York Case, Van Rens- selaer V. Dole, 1 Johns. Cas., 279. An Illinois Case, Ayers v. Greider, 15 111., 37. A New York Case, Phillips v. Bar- ber, 7 Wend., 439 393 11. Digest of American Cases 894 13. Digest of English Cases '. 395 13. Words in Common Parlance 396 XVI TABLE OF CONTENTS. § 14. Illustrations — American Cases: A Minnesota Case, Blakeman V. Blakeman, 31 Minn., 396 297 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, Spolsen Ironically or Otherwise 800 20. Illustrations — Digest of American Cases ; 300 21. Digest of English Cases 300 22. Thelntent Immaterial 301 23. Illustrations — Digest of American Cases 301 24. The Former Rule in England 301 25. The Rule Abolished 303 26. Progress of the Law 303 37. 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 33. Digest of English Cases 307 33. Witnesses Not to Give Their Understanding of the Meaning of Defamatory Words 308 34. Illustrations— American Cases: A Minnesota Case, Gribble v. Pioneer Press Co., 37 Minn., 377. A Massachusetts Case, Snell V. Snow, 54 Mass., 278. A New York Case, Van Vet- chin V. Hopkins, 5 Johns., 311. An Iowa Case, Anderson V. Hart, 68 Iowa, 400 308 35. Unsettled State of the Law 811 CHAPTER XVL MALICE. I. Mauce in Actions for Defamation. §1. Malice as a Term of Law 3|r 3. Malice — A General Discussion ' g-jg 3. Express Mahce 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 * ' " ' 3,0 7'. Malice in Fact Immaterial, when .'.'.'.".'!'.'.*.* 318 8. MaliceinLaw — A Wider Meaning 318 9. Distinction between Malice in Law and Malice in Fact! ."."'" 318 10. Consequences of the Distinction g^g 11. Malice in Connection with the Law of Defamation .'.'.".'! 819 12. Every Defamation Presumed to be Malicious 319 13. Malice Defined by Starkie TABLE OF CONTENTS. XVU i H. Explained by Blackstone 820 15. The Law of Malice Stated by Starkie 320 16. By Champlin, J 321 17. By Erie, C. J 321 18. By Lord Justice Brett 822 19. Malice the Gist of the Action 822 SO. Illustrations — Digest of American Cases 333 21. A Question for the Jury 323 n. Evidence op Malice. 83. 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 824 26. Illustrations — Digest of American Cases 325 87. Digest of English Cases 327 28. Malice Inferred 329 29. Illustrations — Digest of American Cases 329 80. Digest of English Cases 330 31. Repetition of Defamatory Matter Competent to Show Malice. 331 83. Illustrations — Digest of American Cases 331 83. Digest of English Cases 832 34. Reiteration of Libels or Slanders after Suit Brought 332 85. Repetition after Suit Brought Generally 333 86. Illustrations — Digest of American Cases 333 87. Digest of English Cases 384 88. Former and Subsequent Defamations — When Evidence of Malice 334 89. Illustrations — Digest of American Cases 335 40. Digest of English Cases 336 41. Extrinsic Evidence of Malice 336 42. 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 61 Illustrations — Digest of American Cases 343 62. Digest of English Cases 343 53. Privileged Communications — Undue Publicity 344 64. Illustrations — Digest of American Cases 34") 65. Digest of English Cases 345 66. Plea of Justification — When Evidence of Malice 347 , 67. Unsettled State of the Law 347 58. The Better Rule 348 Xviii TABLE OF CONTENTS. CHAPTEE XVII. REPETITION OF DEFAMATORY MATTER. § 1. Repetition by the Originator— Competent to Show Malice. ... 849 3. Illustrations — Digest of American Cases 349 8. Repetition of Slander — Statute of Limitations 350 4. Repetition of Slanders Originated by Others 350 6. Illustrations — American Cases: A Massachusetts Case, Kin- ney V. McLaughlin, 71 Mass., 8. 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 18. Exceptions to the Rule 357 14. Digest of English Cases 358 CHAPTEE XYIII. PARTIES, g 1. Parties to the Action 860 2. Illustrations — Digest of American Cases 360 3. Corporations 360 (1) AsPlaintifls 360 (2) As Defendants 361 4. Illustrations — Digest of American Cases 361 6. 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 365 12. 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 366 16. The Husband's Liability at Common Law 367 17. Abatement of the Action 367 18. Illustrations — Digest of American Cases 368 19. Digest of English Cases 368 20. Infants 369 (1) As Plaintiffs 369 (2) As Defendants 37O TABLE OF CONTENTS. Xlx § 21. Illustrations — Digest of American Cases 370 23. Lunatics g^O (1) As Plaintiffs 870 (2) As Defendants 871 23. Banl^rupts 871 24. Partners g7j 25. Illustrations — Digest of American Cases 373 26. Digest of English Cases 873 27. Liability for an Act of a Partner or Agent 873 28. Illustrations — Digest of American Cases 373 29. The English Law 374 30. PersonalRepresentatives — Executors and Administrators... 375 31. Principal and Agent — Master and Servant 375 33. 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 878 87. Digest of English Cases 378 38. Criminal Liability 880 39. Illustrations — Digest of American Cases 380 40. Digest of English Cases , 380 41. Receivers 383 42. Joint Defendants 383 CHAPTEK XIX. PRIVILEGED COMMUNICATIONS. §1. Privileged Communications Defined 888 2. Proper Meaning of the Term 389 3. The Doctrine Discussed 389 4. Illustrations 390 5. Evei-y Defamatory Publication Implies Malice — Privileged Communications 390 6. Burden of Pi'oving Malice 891 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 Privilege 392 12. The Law Stated by Chief Justice Bronson 393 13. niustrations — Digest of American Cases 893 (1) The General Doctrine 393 (2) Agencies, Mercantile, etc 401 (3) Associations, Churches, 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 PHTviLBaED Occasions. 15. The Subject aassified 418 16. First, the Absolute Privilege 418 17. The Rule Founded on Public Policy 419 18. The General Rule 419 19. A Further Classification 419 20. First Class — Communications in the Course of Legislative Proceedings , 430 21. The Legislative Body Must be in Session 420 22. The Law of England 421 23. Illustrations — American Cases: A Massachusetts Case, Coffin V. Coffin, 4 Mass., 1 421 24. Digest of American Cases 423 25. Digest of English Cases 423 26. Second Class — Communications in the Course of Judicial Pro- ceedings — Conduct and Management — The Administration of Public Justice 435^ 27. The Rule Stated by Justice Lord 424 28. Words Uttered in the Course of a Trial 424 29. Extent of the Privilege 425 80. The Privilege Limited 425 81. No Action Lies for Defamatory Statements Made in the Course of Judicial Proceedings 435 82. Judges of Courts 425 33. Illustrations — Digest of American Cases 426 84. Digest of English Cases 427 85. Attorneys and Counselors at Lavr 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. 429 37. Illustrations — Digest of American Cases 444 88. Digest of English Cases 44,'5 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 448 42. 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 450 TABLE OF CONTENTS. XXI § 46. Illustrations — American Cases: A Maryland Case, Henkell v. Voneifif (1888), 6 Atl. Rep., 500. A Tennessee Case, Sliodden V. McElwee (1887). 5 S. W. Rep., 602 450 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 460- 53. Illustrations — American Cases: An Indiana Case (the Privi- lege Allowed), Hartsock v. Reddick, 6 Blaokf., 255. A Ne- braska Case, Pierce v. Oard, 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., 316 460 63. Digest of American Cases 46& 64. 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., 781 473 57. Third Class — Communications Relative to Naval and Military Affairs 472 68. Extent of the Rule in America 473 59. Heads of Departments Keepers of the Archives 478 60. Illustrations — Digest of American Cases 473 61. Digest of English Cases 47a 62. Second, the Qualified Privilege — The Subject Classified 475 First Class — Qualified Privilege. 68. Where the Circumstances Cast upon the Party the Duty of Makii\g 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 Voliinteered in the Dischabgb of 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 CaiSes 480 74 Digest of English Cases 481 75. No Confidential Relation Existing between the Parties 488 76. The Doctrine of Voluntary Communications Discussed 483 77. Danger of Voluntary Statements 484 78. Parties Making Statements Must Believe Them 485 79. Dlustrations — Digest of American Cases 485 jX,J TABLE OF OONTBHTS. §80. Digest of English Cases ••• • 81. Communications Relating to the Character of Servants 49U 82. Character of Servants 83 A Favorable Character May be Retracted 84. Eagerness to Prevent Former Servant from Obtaining Employ- ment—Evidence of Malice ^J, 85. Illustrations — Digest of American Cases ■ • • • • 49- 86. Digest of English Cases 87. Confidential Communications in Answer to Inquiries 49d 88. The General Rule 89. Pertinency of the Answers ^ 90. Illustrations — Digest of American Cases 495 91. Digest of English Cases 92. Confidential Communications Not In Answer to Inquiries 498 93. The Cases Distinguished ^°° 94. Illustrations — Digest of American Cases 498 95. 96. 95. Digest of English Cases. ^^® Communications Relating to the Misconduct of Others and Crimes — A Duty Owed to the Public 600 97. The Rule Stated by Inglis, 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. 504 102. Caution to be Observed in Making Statements 505 103. Illustrations — American Cases : A Wisconsin Case, Ellsworth V. Hayes, 71 Wis., 427 505 104. 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 Michigan Case, Smith v. Smith (1889), 41 N. W. Rep., 499. A New York Case, Klinck V. Colby, 46 N. Y., 427 510 113. Digest of American Cases 513 113. Digest of English Cases 513 114. Communications Provoked by the Plaintiff's Request or Con- trivance 515 116. 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, 29 Mass., 163 616 118. Digest of American Cases 517 119. Digest of English Cases 517 120. Communications Provoked by a Party's Misconduct — The Right to Defend One's Character 519 TABLE OF CONTENTS. Xxiii ) 131. Limitation of the Rule 520 132. Illustrations — American Cases : A Minnesota Case, Quimby v. Tribune Co., 38 Minn., 528. A Massachusetts Case, SheffiU V. Van Dusen, 81 Mass., 485. A New York Case, Beardsley V. Maynard, 7 Wend., 560 520 123. Digest of English Cases 523 Second Class — Qualified Privilege, 124. Parties Having a Common Interest 523 125. Illustrations — American Cases: A Michigan Case, Bacon v. Michigan R. R. 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., 384 524 126. Digest of American Cases 526 137. Digest of English Cases 526 128. "Where there is a Community of Interest 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 533 133. Illustrations — Digest of American Cases 533 134. Communications Relating to Candidates for OfiSce 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 585 139. Illustrations — American Cases: A Michigan Case, Wheaton 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 543 145. Illustrations — Digest of American Cases 643 146. Digest of English Cases 543 147. Second, Judicial Proceedings — Requisites of the Report 544 148. UluBtrations — Digest of American Cases 544 149. Digest of English Cases 546 150. Exceptions to the Rule 548 151. Illustrations — Digest of English Cases 548 153. Reports of Ex Parte Proceedings and Preliminary Examina- tions 549 153. Illustrations — Digest of American Cases 549 154. Digest of English Cases 551 155. Essentials of the Report 851 Reports to be Confined to the Proceedings 556 Illustrations — Digest of American Cases 557 XXIV TABLE OF CONTENTS. §156. Not Essential that the Report Should be Verbatim 552 157. Extent of the Privilege °^ 158; The Press Has No Exclusive Privilege 55^ 159. Illustrations — Digest of American Cases 553 160. Digest of English Cases 161. Partial Reports 162. Illustrations — Digest of English Cases 555 163. 164. 165. Digest of English Cases 166. Questions of Practice for Consideration 558 167. Duty of the Jury ^^^ 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 2. Of the English Law : 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 568 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 572 12. 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 20. Illustrations — Digest of American Cases 580 21. Digest of English Cases 581 22. Matters Relating to the Management of Public Institutions aud Local Authorities 582 23. Illustiations — Digest of American Cases 583 24. Digest of English Cases 583 25. Matters Relating to Appeals for Public Patronage 583 26. Illustrations — Digest of American Cases 584 TASLE OF CONTENTS. XXV I 27. Digest of Knglish Cases 585 28. Matters Pertaining to Literary Publications, Books, Pictures, etc 686 29. Illustrations — Digest of American Cases 687 30. Digest of English Cases 587 31. Matters Concerning the Character and Quality of Public En- tertainments 588 33. Criticism on Subjects of Public Exhibition 689 33. Illustrations — Digest of Amei-ican Cases 689 34. Digest of English Cases 590 85. 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.. 691 39. Who is the Proprietor of a Newspaper 593 CHAPTER XXI. PLEADINGS IN CIVIL ACTIONS. § 1. The Pleadings in Actions of Defamation 595 2. Pleading under Codes 595 3. Illustrations — Digest of New York Cases ."196 4. Modification of the Common-law System 698 6. Forms Prescribed in Massachusetts : 598 6. In Alabama 598 7. In Florida 699 8. In Kansas 699 9. In Arizona Temtory 699 10. The Principles of the Common Law 60O 11. The Statement of the Claim Defined 600 13. The Declaration at Common Law — Its Form and Particular Parts 600 The Subject iLLnsTEATED. 13. First, theTitle 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 603 18. Sixth, Statement of Extrinsic Matters — Commission of an Offense 603 19. The Inducement Explained 603 20. Illustrations — American Cases: A Massachusetts Case, Bloss V. Toby, 19 Mass., 330 — Digest of American Oases 603 21. The Inducement, when Necessary 607 22. Illustrations — Digest of American Cases 607 23. The Inducement, when Not Necessary 609 24 III ustrations — Digest of American Cases 610 XXvi TABLE OF CONTENTS. § 25. Special Inducements as to Professions, Trades, etc.— Illustra- tions: An Old English Form. An Illinois Form. A Mod- ern English Precedent 26. Declaring upon Defamatory Matter at Common Law — Trav- erse of Extrinsic Matter "^'■ 27. Seventh, Statement of Malicious Intent .' 613 28. The Statement Essential 612 29. Eighth, the Colloquium 613 80. The Term Defined ^^^ 81. The Application to the Plaintiff of the Defamatory Matter Must be Averred 613 82. Dlustrations — American Cases: McCallum v. Lambie, 145 Mass., 234 — Digest of American Cases. 614 83. Ninth, the Imputation with the Innuendoes 618 84. The Innuendo Defined • 618 85. The Office of the Innuendo 619 86. The Law Stated by Chief Justice Shaw 620 87. Illustrations — American Cases: A Wisconsin Case, Singer v. Bender, 64 Wis., 169. A New York Case, Butler v. Wood, 10 How. (N. Y.), 222 — Digest of American Cases — Digest of English Cases : (1) Libel ; (2) Slander 620 38. Truth of the Innuendo a Question for the Jury 628 39. The Plaintiff Must Abide by His Innuendo 629 40. When it WUl Vitiate the Pleading 629 41. Wh^n the Innuendo May be Treated as Surplusage 629 42. It Cannot Restrict the Defendant's Rights — The Defense Must be as Broad as the Attack 630 43. Illustrations — American Cases : A Michigan Case, Bothwiok V. DetroitP. & T. Co., 60 Mich., 629 630 44. Form of the Second Count 633 45. Illustrations — Digest of American Cases 633 46. Tenth, General Statement of Damages 633 47. Eleventh, the 4d Damnum 634 48. TweKth, 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 61. Defamatory Words Spoken in a Foreign Language 637 62. Illustrations — American Cases: Pelzer v. Benish, 57 Wis., 291. An American Common-law Form. A Modern Eng- lish Precedent 637 Statement of the Claim in Actions foe Slander of Title. 63. Requisites of the Declaration 638 54. Illustrations — Digest of English Cases 638 55. Statement of Special Damages 639 56. Statement of the Negotiation for 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 Office, Profession or Trade 649 63. 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 65? 72. The General Rule — Illustrations 658 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. Dlustrations: Form of the Plea. Imputation of Perjury. Im- putation of Passing Counterfeit Money. 655 77. Illustrations — Digest of American Cases 656 (1) The Plea Generally 656 (2) What is a Justification 658 (3J 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 82. The Replication De Injuria 665 83. Illustrations — Its Form at Common Law 666 84. Conclusion. 666 CHAPTEE XXII. PRECEDENTS OF PLEADINGS IN CIVIL CASES. L Slander. § 1. Declaration in Slander at Common Law — Skeleton Form. ... 670 2. 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 XXViii 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 12. 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 683 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 Perjury 686 19. A Modern English Precedent— Libel Posted in Public Place. 689 80. 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 Eules — The Eng- lish Procedure Act 700 28. Character of Servants 701 29. Imputation in a Foreign Language 701 30. On a Libel Contained in a Placard 701 31. For Beading a Libel Aloud 703 82. For Showing an Anonymous Letter. 703 83. For a Libel on a Town Clerk 7O3 34. For a Libel on a Solicitor 703 35. For a Libel on an Architect in the Way of His Profession 704 36. For Words Imputing a Crime 705 87. For Words Imputing a Contagious Disorder — Special Dam- ages 705 38. For Slander of a Clergj'man 705 39. For Slander of a Medical Man 70g 40. For Slander of a Solicitor ijqq 41. For Slander of a Trader in the Way of His Trade — Special Damages — Another Form — Particulars of Special Dam- ages 707 43. For Words Imputing Insol vency — Special Damages 708 43. 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. Slandek of Pkopeett. § 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. Slandkr 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 ^jrji 52. 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 731 57. For an Imputation that the Plaintiff had been Guilty of Open- ing Letters. . ; 731 58. For an Imputation that the Plaintiff had been Guilty of Per- jury in an Answer in Chancery 732 59. Justification of a Slander of Property. 734 60. General Replication ; 734 VU. Statement of Defenses dndee the English Rules. 61. A Traverse and an Objection in Point of Law 735 63. Defense — No Libel — Bona Fide Comment on Matters of Pub- lic Interest 735 63. No Libel — Action against a Newspaper Publisher 735 64. Bill of Particulars , 736 65. Comment on Matters of Public Interest — The Same Defense and Replication 737 66. No Slander — Insufficient Publication — No Conscious Publica- tion and Reply 727 67. Innocent Publication of a Libelous Novel 728 68. No Conscious Publication — Madness 738 69. Words Spoken in Jest 729 70. A Justification 730 71. Justification of the Words without the Alleged Meaning ... 730 73. Justification of a Portion of a Libel and Reply 730 73. Justification and Privilege 731 74. Absolute Privilege — Litigant in Person — Wituess — Military Duty 731 c XXX TABLE OF CONTENTS. §75. Qualified Privilege '''32 (1) Character of Servants 'i'32 (2) Answer to Confidential Inquiries 732 (3) Master and Servant '''32 (4) Advice to One about to Marry 733 (5) Communication Volunteered 783 (6) Offer of Reward for Discovery of Offender 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 (13) 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 743 85. Interrogatories and Answer 743 CHAPTEE XXIII. BILLS OF PARTICULARS. §1. A Bill of Particulars Defined 745 3. Power of the Court to Order the Bill 745 8. When Ordered on Defendant's Motion 745 4. When Ordered on Plaintiff's Motion 746 5. When it Will Not be Ordered 746 6. Its Form and Contents 746 7. A Precedent in Actions for Special Damages— Loss of Profits 746 8. Illustrations — Digest of American Cases 747 CHAPTEE XXIV. EVIDENCE. Plaintiff's Proofs— Plea of the General Issue Filed. § 1. The Natural Order of the Proofs 75I a. Proof of the Plaintiff's Special Character and Extrinsic Matter 751 (1) Where it is Generally Alleged 75I (3) Where it is Specially Alleged 75^ TABLE OF CONTENTS. XXXi §3. When the Proof is Unnecessary 752 4 Strict Proof of Special Character Not Required 753 5. Proof of Extrinsic Matters 753 6. Words Spoken of a Person in the Way of His OfiBce, 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 Defamatory Matter Refers to the PlaintifE 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 Plaintiff's Good Character 771 21. Under the Greneral 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 28. 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 33. Digest of American Cases 785 33. Digest of English Cases 787 Defendant's Proofs — Plea of the General Issue Filed. 84, The General Issue Filed 787 35. Defendant's Evidence under this Plea 788 36. Falsity Relied on as Proof of Malice 788 87. Privileged Communications 788 88. Generally what the Defendant May Show under this Plea. . . . 790 89. 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 Filbd. 41. The Plea with the General Issue 794 43. Justification — The Truth a Defense in Civil Actions 795 XXXii TABLE OF CONTENTS. §43. Degree of Proof Required '95 44. Imputation of Perjury '''9** 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 (2) Beyond a Reasonable Doubt 800 Evidence Not Admissible under the Plea of Justiitcation. 48. Variances — A Variance Defined 604 49. What Constitutes a Variance ti04 50. The Law Stated 804 51. TheGeneral Rule 805 ( 53. Illustrations — Digest qf American Cases — Variance Fatal . . 805 63. Variance Immaterial — Digest of English Cases 808 64. Right to Open and Close 810 55. The General Rule 811 56. Illustrations — Digest of American Cases 811 57. Defendant's Tongue No Slander 813 68. Proof of Surrounding Circumstances for the Purpose of Ren- dering Words Not Actionable 813 59. Evidence of Slanders Uttered by Defendant against Third Persons 813 60. Illustrations — Digest of American Gases 813 61. General Digest of American Cases. (1) What Evidence is Admissible Generally in Actions for Defamation 814 (2) What Evidence is Not Admissible 820 (3) Evidence of Character 823 (4) The Burden of Proof 826 63. Defendant's Proofs — General Digest of American Cases 828 CHAPTER XXV. NONSUIT. §1. The Term Defined 830 3, A Voluntary Nonsuit 830 3. An Involuntary Nonsuit 830 4. Power of the Court to Direct a Nonsuit 830 5. When it Will be Directed 881 6. Taking the Case from the Jury 833 7. Illufetrations — Digest of American Cases 833 8. Digest of English Cases 834 CHAPTER XXVI. DAMAGES. I. General Damai es. § 1. General Damages 838 2. The Subject Classified 839 TABLE OF CONTENTS. XXXiiL § 3. Nominal Damages §39 4. Illustrations — Digest of American Cases 839 5. Digest of English Cases 840 6. Subst'Sntial Damages 841 7. Illustrations — Digest of American Cases 841 8. Exemplary Damages 843 9. The Law Stated by McAllister, J. 843 10. Illustrations — American Cases: An Indiana Case, Casey v. Hulgan, 21 N. E. Rep., 333 844 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 n. Special Damages. 16. Special Damages Defined 849 17. Words Actionable if Special Damage Follows 849 18. The Eule for "Words Not in Themselves Actionable without Proof of Special Damage 850 19. Damages Arising from Words Not Actionable in Themselves. 851 80. 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 j 853 23. Illustrations — Digest of American Cases 853 24. Digest of English Cases ; 854 25. Classes of Words, when Actionable 854 26. Illustrations — Digest of American Cases 855 27. Digest of English Cases 855 28. Special Damages — Words Not Actionable in Themselves 855 29. Proof of Special Damages — In What Cases Essential 858 30. Loss of Some Material Temporal Advantage 856 31. Continuing Damages 857 83. Illustrations — Digest of American Cases 858 33. Digest of English Cases 861 84. Special Damages — Words Actionable in Themselves 863 85. Mental Distress, etc. — When and when Not Special Damage. 863 86. Special Damage — Traders and Professional Men 864 37. Illustrations — Digest of American Cases 865 88. Digest of English Cases 865 89. Special Damage Must be Specified in the Statement of the Claim 866 40. Statement of the Claim for Special Damages 366 41. Statement of the Claim — Its Requisites 867 43. The Rule in Actions for Libel 867 43. Application of the Rule 868 44. Difliculty 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 ^''^^ 47. Digest of English Cases ^''1 48. Words Imputing a Want of Cliastity 873 49. An Exception 873 60. Illustrations — Digest of English Cases 873 III. Aqgeavation oe Damagbs. 61. What May be Shown in Aggravation of Damages 874 68. Extrinsic Matters in Aggravation of Damages : 875 63. The Plaintiff's Character in Issue 875 54. The Plaintiff's Character Presumed to be Good 876 65. Negligence in the Publishers of Newspapers 876 66. Extent of Circulation May be Shown 877 67. The Defendant's Wealth an Element of Damages 877 68. The General Rule 878 69. Illustrations — American Cases : A Michigan Case, Hitchcock V. Moore, 37 N. W. Rep., 914 878 60. Digest of American Cases 879 61. Digest of English Cases 883 IV, Mitigation op Damages. 62. 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 American 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 908 83. Illustrations — American Cases : A Massachusetts Case, Shef- flU V. Vandusen, 81 Mass., 485. A New York Case, May- nard v. Beardsley, 7 Wend., 560. A Minuesota Case, War- ner V. Locksley, 81 Minn., 421. A Massachusetts Case, Child V. Homer, 13 Pick. (Mass.), 503 903 83. Digest of American Cases g06 TABLE OF CONTENTS. XXXV § 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 Oases — Amounts Held Not Excessive 912 89. Digest of English Cases 920 90. Amounts Held to be Excessive 924 VI. Remoteness op Damages. 91. Damages Too Remote 928 92. Illustrations — American Cases : A Massachusetts Case, Dud- ley V. Briggs, 141 Mass., 583 928 93. Digest of English Cases 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 981 100. Digest of English Cases — A Contrary Doctrine 933 101. Repetition by Third Persons 933 102. Exception to the Rule 933 103. Digest of English Cases 933 104. Inadequacy of Damages 935 CHAPTER XXVII. THE CRIMINAL LAW OF DEFAMATION. § 1. The Criminal Libel Defined 987 2. Illustrations — General Digest of American Cases 987 S. The Offense, when Committed 939 4. The Test of 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 ajid 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. Obspene Libels 941 12. lUastrations — Digest of American Cases 943 XXXVl TABLE OF CONTENTS. g 13. Digest of English Cases 943 14 Blasphemy 944 15. Heresy 946 16. Distinction between Heresy and Blasphemy 94'i' 17. The English Law of Blasphemy 948 18. Illustrations — Digest of English Cases 956 19. The American Law of Blasphemy .' 960 (1) ,The Common Law 960 (2) Under Statutes 960 20. Illustrations — Digest of American Cases 961 21. Liberty of the Press Not to be Abridged 962 22. Profanity 962 23. Illustrations — Digest of American Cases 963 Class III. 24. 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 Reputation 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. (2) Other Illegal Acts 968 80. Oral Defamation 970 81, Publication of Libels under the Criminal Law 971 GHAPTEE XXYIil. PLEADINGS IN CRIMINAL PROCEEDINGS. §1. Rules of Pleading ; 973 2. The Indictment — Its Formal Parts 974 (1) The Caption and Commencement 974 (2) The Statement and Conclusion 976 8, Illustrations — Digest of American Cases 977 PRECi)DENTS. 4, Libels on Individuals 931 (1) Indictment for Writing a Ridiculous Poem and Sending it to the Person Libeled 98i (2) For Publishing a Libel Imputing the Crime of Theft 982 (3) 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 984 (6) For Hanging a Man in Effigy 934 (7) For Posting up a Handbill 935 (8J For Attempting to Publish a Libel ,,,[ 935 TABLE OF CONTENTS. XXXVU §6. libels on the Dead 985 (1) Indictment for Writing a Libelous Epitaph 985 (2) 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. libelsTending to Injure the Administration of Public Justice. 990 (1) English Form for Words Spoken to a Magistrate. ....... 990 (2) Indictment for Verbal Slander 091 TABLE OF AMERICAN AND ENGLISH CASES GIVING THE REPORT AND PAGE WHERE THE CASE MAY BE FOUND, FOL- LOWED BY THE PAGES WHERE CITED IN THIS WORK. I. AMEKIOAN CASES. Abrams v. Smith, 8 Blackf., 95 101, 773 Abrams v. Foshee, 3 Iowa, 274 - - 133 Abshire v. Kline, 3 Ind., 115 - - 160 Achorn v. Piper, 66 Iowa, 694 - - - - - 849, 861 Acker v. McCullough, 50 Ind., 447 - - - - - 163 Ackerman v. Jones, 37 N. Y. Sup. Ct, 43 - - - 544, 546 Adams v. Lawson, 17 Gratt., S50 - - - - 340, 341, 346 Adams v. Harmon, 3 Nev., 283 - - - - - - - 834 Adams v. Rankin, 1 Duv., 58---- ... 159 Adams v. Smith, 58 HL, 421 - - - - 841, 890, 891 Adams v. Stoner, 131 Mass., 433 - - - - 158 Adams v. Ward, 1 Stew. (Ala.), 43 - - - - - - 798 Adcock V. Marsh, 8 Ired. (N. C.) L., 360 - - - - 775, 878 Adkins v. Williams, 28 Ga., 333 - - - 773 ^tna Life Ins. Ca v. Paul, 33 III App., 611 - - - - - 820 Aird V. Fireman's Jonr. Co.. 10 Daly, 254 347 Alabama & V. Ry. Co. v. Brooks, 69 Miss., 168; 13 So. Rep., 847 391 Albin V. Parks, 2 Brad. (BL), 576 - - 805 Alderman v. French, 1 Pick., 1 ... - 774, 836, 883, 889, 894 Aldrich v. Brown, 11 Wend., 596 • - .... 138, 837 Aldrich v. Press Print. Co., 9 Minn., 133 - - 361, 363. 534, 535, 561 Alexander V. Alexander, 9 Wend., 141 - 98,111,143,353 Allen V. Cape Fear, etc., R'y Co., 6 S. E. Rep., 105 - 61, 63 Allen V. Crofoot, 3 Wend., 515 - - - ■ . . 448, 505, 506 Allen V. News Pub. Co., 81 Wis., 120 ■ - - - - 78 Allen V. Wortham, 89 Ky., 485; 13 S. W. Rep., 73 - - - 238, 334, 335 Allensworth v. Coleman, 5 Dana (Ky.), 315 - - 359, 786 Alley V. Neeley, 5 Blackf., 200 - - - - - 118, 119, 266 Alliance Review v. Valentine, 9 Ohio Cir. Ct. R., 387 349 Alvin V. Morton, 21 Ohio St., 536 - -. - - - - 498 Ames V. Hazzard, 6 R. L, 839 - - • - - - 797 Anabal v. Hunter, 6 How. Pr., 255 - ... 660 Anderson V. Hart, 68 Iowa. 400 - - 308,310,769 Anderson V. Long, 10 S. & R, 55 - - 876 Andres v. Koppenheafer, 3 S. & R, 255 - - - - 38, 98, 103, 272 Andres v. Wells, 7 Johns., 260 - - - - - 373, 377, 593 Andrew v. Deshler, 45 N. J. L., 167 - - - - 313, 648 Andrews v. Bartholomew, 43 Mass., 509 - - - ... 907 Andrews v. Van Dusen, 11 Johns., 38 - - - - 657, 660, 794 Andrews v. Woodmansee, 15 Wend., 333 - - - 143, 145, 253, 681 Anon., 1 Ohio, 83, n. ' ' ' \ 11^ Anon., 60 N. Y., 263 386,859,933 Anon., 3 How., 406 - - - 608 Xl TABLE OF CASES CITED. Anon., 1 Hill (S. C). 251 - - ... ... 803 Anon., 6 How. Pr., 160 " - 82''> Anthony v. Stevens, 1 Mo., 354 ... - - 893 Arraentrout v. Moranda, 8 Blackf., 436 - - - - 34 Arnott V. Standard Ass'n, 57 Conn., 86 - 63, 817, 819 Arrington v. Jones, 9 Port. (Ala.), 139 - 791, 883 Arrow Steamship Co. v. Bennett. 73 Hun, 81 74, 176 Artieta v. Artieta, 15 La. Ann., 48 - 853, 853 Ashbell V. Witt, 3 N. & M., 864 - - - - 616 Ashford v. Choate, SO U. C, C. P., 471 - 205, 306 Ashire v. Cline, 3 Ind., 115 - - - 790, 791 Atkins V. Johnson, 43 Vt., 78 - - - 239, 341 Atkinson v. Detroit Free Press Co., 46 Mich., 341 403, 653 Atkinson v. Hartley, 1 McCord, 203 - 372 Atkinson v. Reading, 5 Blackf., 39 - - 148 Atkinson v. Scannon, 33 N. H., 40 - ■ - - 648 Atwater v. Morning News Co., 67 Conn., 504 - - 69 Atwill V. Mackintosh, ISO Mass., 177 - 403, 496 Ausinan v. Veal, 10 Ind., 355 - - - 383 Austin V. Bacon, 3 N. Y. S., 587 - - 832 Austin V. Hanchett, 3 Root (Conn.), 48 - - 802 Austin V. Remington, 46 Conn., 16 - - - 335 Austin at ux. v. Nelson et ux., 58 Mass., 373 - - - - 365 Avery v. State, 7 Conn., 366 ... 973 Ayers v. Covill, 18 Barb., 360 - - - 645 Ayers v. Grider, 15 111., 37 - - - - 393 Aylesworth v. St. Johns, 35 Hun, 156 - - - - 419, 545 Ayres v. Toulmin, 74 Mich., 44; 41 N. W. Rep., 855 98, 351, 605, 633, 633 Backus V. Richardson, 5 Johns., 476 - - - - - -'-194 Bacon V. Mich. Cent. R R. Co., 55 Mich., 234 - 339, 331, 380, 534, 763 Badgley v. Hedges, 2 N. J. L., 333 - - - - - - - 446 Bailey v. Dean, 5 Barb., 397 - - - - 805, 307, 209, 811, 818, 426 Bailey v. Kal. Pub. Co., 40 Mich., 257 - - 81, 278, 533, 537, 541, 578, 653 Bain v. Myrick, 88 Ind., 137 - ... - - 120 Baker v. Young, 44 111., 43 - . - - . 805, 810 Baker v. Wilkins, 3 Barb., 330 - - - ... - 884 Baldwin V. Hildreth, 14 Gray, 381 358, 617 Baldwin v. Soule, 6 Gray, 331 773, 804, 809 Baldwin v. Walser, 41 lio. App., 843 ...... 175 Ball v. Evening Post Pub. Co., 38 Hun, 11 - - . - 736 Baltimore Wheel Co. v. Bemis, 39 Fed. Rep., G5 - . 346, 346a Bangs V. Ocean Bank, 53 How. (N. Y.), 51 - . . 743 Bank v. Bowdre, 92 Tenn., 733; 23 S. W. Rep., 131 - - - 74 Banner Pub. Co. v. State, 16 Lea, 176 - - .... 577 Bar V. Gaines, 1 Dana, 858 --...... 303 804 Barber v. Barber, 33 Conn., 335 - - - ... '786 Barber v. St. Louis Dispatch Co., 3 Mo. App., 377 .... 545 Barclay v. Thompson, 3 Penn., 148 89 111 Barfield v. Britt, 3 Jones (N. C), L., 241 ' 803 Barger v. Barger, 18 Penn. St.. 489 . . - . . . igg Barker v. Commonwealth, 7 Harris, 413 - - - 943, 983, 964, 970, 974 Barkly V. Copeland 15Pac Rep., 307 - - 814,817,818,819,877,888 Barnes v. Campbell, 60 N. H., 37 qo"! 8S1 Barnes v. Crawford, 115 N. C, 76 ' 543 Barnes v. McCrate, 33 Me., 443 443 430 45(5 45a Barnes v. Trundy, 31 Me.. 326 4ij, 4oO, 45b, 4o8 Barnett v. Ward, 36 Ohio St., 107 - -• . . . snfi Barr V. Birkner, 44 Neb., 197 ' V^r Barr v. Hack, 46 Iowa, 308 ' 880 R«rrnw^°R1'l®7n^'"'•,n^^^^ 52,81,533,535,846 Barrow v. Bell, 7 Gray, 301 . . . . . ccq Barrow v. Carpenter, 11 Cush., 456 ' ' SOfi Bartlett v. Christhilf, 14 Atl. Rep., 518 - . . . I 393, 403 AMERICAN CASES. xli Barto V. Brands, 15 N. J. L., 34S - - - . - . . . 773 Barton v. Holmes, 16 Iowa, 352 - - . . . 269 Bash V. Sommer, 20 Penn. St., 159 - - . . . 300 879 Bassell v. Elmore, 48 N. Y.. 551 - - ' 350 Bassett v. Spofford, 11 N. H., 127 ■ - .... 804 Bathrick v. Detroit Trib. Co., 50 Mich., 659 - 544 54,", 030 632 892 Battel V. Wallace, 30 Fed. Rep., 229 - ' . ' 884^ SS."* Baum V. Clause, 5 Hill, 196 - - . 657, 660' 798 Bays V. Hunt, 60 Iowa, 251 - 105, 107, 119. 12o] 406^ 588 Beach v. Ranney, 2 Hill, 309 - - - - 365, 645, 779, 781, 783, 858 Bcals V. Thompson, 149 Mass., 405 - ... 493 Bearce V. Bass, 88Me., 521; 34 Atl. Rep., 411 - - - - - 391 Beardsley v. Bridgeman, 17 Iowa, 290 - - - ... 773 Beardsley v. Maynard, 7 Wend., 560 - . - 521, 775 Beardsley v. Tappan, 1 Blatch. C. C, 588 193, 394, 401,' 624 Beasley v. Meigs, 16 111., 139 . - - - . . 347 Bebee v. Missouri P. R'y Co., 9 S. W. Rep., 449 - 329 330 399 Beck V. Stitzel, 31 Penn. St., 522 - . 98 102 Beckett v. Sterrett, 4 Blackf., 499 - - - 113 118 Beggerly v. Craft, 31 Ga.. 309 - - - - . - 801 Beirer v. Bushfield, 1 Watts, 33 - - - . - 6'^6 Belok V. Belck, 97 Ind., 73 . - ... 156 Belo V. Fuller, 84 Tex., 450 - - - - . - 98 Belo V. Wren. 63 Tex., 686 - - ... 543 Bell V. Fernaid, 38 N. W. Rep., 910 - - - 87, 119 Bell V. McGinness, 40 Ohio St., 204 - ... 796 Bell V. State, 1 Swan (Tenn.), 43 - - 941, 943, 964, 970 Bell V. Sun P. Co., 3 Abb. N. Cas., 157 - 83, 287 Benaway v. Conyne, 3 Chand. (Wis.), 314 - - . 643 Bennett v. Hyde, 6 Conn.. 24 - - - 786, 826, 878 Bennett v. Salisbury, 78 Fed. Rep., 759 - - 900 Benson v. Edwards, 1 Carter (Ind.), 164 - 333 Benton v. State (N. J., 1897), 36 Atl. Rep., 1041 - - - 901 Berdeaux v. Davis, 58 Ala., 611 - - - 134, 249 Bergmann v. Jones, 94 N. Y., 51 - - 204, 846, 91» Bergold v. Putcha, 8 Thomp. & C, 533 - - - 183, 190 ,Berry V. Carter, 4Stew. c&P., 387 - - - 15» Berry v. Massey, 104 Ind., 486 - 301, 305 Beswick v. Chappel, 8 B. Mon., 486 - - 137, 383, 616 Biler v. Gockley, 18 Brad., 496 - - - - - - 139 Bidwell V. Rademacher, 11 Ind. App., 318 - - 78, 186, 187 Bieler v. Jackson, 64 Md., 589 ... 399 Bigelow V. Sprague, 140 Mass., 425 - - - - 243, 763, 877, 881 Bigney v. Van Benthuysen, 36 La. Ann., 38 - - - 513, 584 Billings V, Fairbanks, 139 Mass., 36; 29 N. E. Rep., 544 - 391, 494, 501 Billings V. Waller, 28 How. Pr., 97 660 Billings V. Wing, 7 Vt., 444 - - - - - - 89, 98, 108 Binford v. Young, 115 Ind., 174; 16 N. E. Rep., 143 - 753, 891' Binns v. Stokes, 37 Mich., 239 326 Birchfield v. Russell, 3 Coldw. (Tenn.), 238 - - - - 835 Bisby V. Shaw, 15 Barb., 578 - - 801 Bishop V. Journal Co. (Mass., 1897), 47 N. E. Rep., 119 - - - 931 Bissel V. Cornell, 34 Wend., 354 653, 657 Black V. Citv of Lewiston, 13 Pao. Rep., 80 834 Blackburn v. Clark (Ky.), 41 S. W. Rep., 430 ... .113 Blackensta£E v. Perrin, 27 Ind., 537 160, 899 Blacknell v. Smith, 8 Mo. App., 43 - - - - - - 120, 265 Blackwell v. Wiswall, 14 How. Pr., 358 - - - - - 376 Blair v. Sharp, Breese (111.), 11 - - - - - - - 616 Blaisdell v. Raymond, 14 How. (N. Y.), 365 - - ... 597 Blake v. Smith, 84 Atl. Rep., 995 156 Blakeman v. Blakeman, 31 Minn., 396 - - - - 369, 397, 913 Bleakeslee v. Carroll, 64 Conn., 333; 39 Atl. Rep., 473 - - 560 Blessing v. Davis, 34 Wend., 100 641 Xlii TABLE OF CASES CITED. Bloss V. Tobey, 3 Pick., 320 - „ 198, 603 Blumhardt v. Eohr, 17 Atl. R<^p., 366 - - - - - 87, 223, 337 Bod well V. Osgood, 3 Pick., 379 57,506,542,770,917 Bodwell V. Swan, 3 Pick., 376 773, 78o, 790, 791 Boehmer v. Detroit Free Press, 94 Mich., 7; 53 N. W. Rep., 833 - 137, 539, 560, 751 Bolt V. Bud wig, 19 Neb., 739; 28 N. W. Rep., 380 871 Bonner v. Boyd, 3 H: & J., 378 119 Bonner v. MoPhail, 31 Barb., 106 - - - - - - 136 Boogher v. Knapp, 8 Mo. App., 591 146 Booker v. State, 100 Ala., 30 98, 137 Boston Diatite Co. v. Florence Mfg. Co., 114 Mass., 69 - - 246, 346o Bostwiok V. Nicholson, Kirby (Conn.), 65 - - - - - 779 Boteler v. Bell, 1 Md., 173 774 Bourlaud v. Edison, 8 Gratt., 27 - 520 Bourland v. Wallace, 8 Gratt., 37 903 Bourreseau v. Detroit Evening Journal, 63 Mich., 425 - - 69. 81 Bourreseau v. Detroit Eve. News. 30 N. W. Rep., 376 178, 290, 307, 409, 630 Bowden v. Bailes, 101 N. C. 613; 8 S. E. Rep., 343 - - 157, 785, 845 Bowdish V. Peckham. 1 D. Chip. (Vt.), 146 - - - 646, 898 Bowe V. Roger!!, 50 Wis., 598 189, 916 Bowen v. Hall, 18 Met. (Mass.), 333 - 793 Boynton v. Remmington, 3 Allen, 397 65, 287 Boynton v. Shaw Stocking Co., 146 Mass., 219; 15 N. E. Rep., 507 63, 74, 319, -608 Braden v. Walker, 8 Humph., 34 661 Bradford v. Edwards, 33 Ala., 638 888, 909 Bradley v. Cramer, 69 Wis., 309 53, 189, 338 Bradley v. Fuller, 118 Mass., 339 936, 928 Bradley v. Gardner. 10 Cal., 371 814 Bradley V. Gibson, 9 Ala., 406 888,893,894 Bradley v. Heath, 13 Pick., 163; 33 Am. Dec., 418 61, 395, 409, 448, 480, 481, 505, 516, 649, 789, 790, 792 Bradshaw v. Perdue, 12 Ga., 510 643 Bradstreet Co. v. Gill, 73 Tex., 115; 9 S. W. Rep., 753 495, 60.5, 633, 814, 817 Bradstreet Co. -k Oswald, 96 Ga., 396 - - - 168, 169, 746, 866 Bradt v. Towsley, 13 Wend., 358 782, 858 Bransteller v. Darrow, 81 Ind., 537 163, 268 Brashen v. Shepherd, Sneed (Ky.), 249 358 Brennen v. Tracy, 2 Mo. App., 540 ------ - 363, 938 Brenton v. Note, 3 N. Y. S., 420 333 Brewer v. Weakley, 3 Overt., 99 ------ -81, 533 Bricker v. Potts, 13 Penn. St., 800 124, 137 Brickett v. Davis, 31 Pick., 404 -.--... 792, 797 Bridgman v. Hopkins, 34 Vt., 532 ------ - 890, 893 Briggs V. Byrd, 12 Ired. (N. C.) L., 377 775, 818 Briggs V. Garrett, 111 Penn. St., 404 - - 391, 476, 485, 535, 539, 540 Brite v. Gill, 3 T. B. Mon., 65 100, 101, 829 Brittain v. Allen, 3 Dev. L., 167 - - - - 374, 281, 634^ 685, 772 Broad v. Duester, 8 Biss. C. Ct., 365 .---.. 162, 634 Brockerman v. Kyser, 1 Phil., 243 -.-.....' 405 Bronson v. Bruce, 59 Mich., 467 -...-.. 405, 533 Brooker v. Coffin, 5 Johns., 190 67, 84, 97, IO3I 165 Brooks V. Dutcher, 33 Neb., 644; 36 N. W. Rep., 138 823, 839, 850, 891, 914 Brooks V. Hanford, 15 Abb., 343 - - 371 Brooks V. Harrison, 91 N. Y., 83 - . - 57 Broughton v. McGrew, 5 L. R. A., 406; 39 Fed. Rep., 672 . - 67 494 Brow V. Hathaway, 13 Allen, 32 - 445, 446, 500, 503, 505, 510, 513. 639 Brown v. Allen, 91 Penn. St., 393 - - 879 Brown v. Autrey, 3 S. E. Rep., 669 - 913 Brown V. Barnes, 39 Mich., 211 . 875 878 Brown v. Brashier, 3 Penn., 114--......' 643 Brown v. Brooks, 3 Ind., 518 .--..... 910 Brown v. Brown, 14 Me., 317 ' . .616 617 866 AMEEICAN OASES. tIiii Brown v. Calvert, 4 Dana (Ky.), 219 ..--.. 745 747 Brown v. Elder, 37 N. B.. 465 - . . ' 533 Brown v. Hanson, 50 Ga., 633 ---.-.--. gog Brown v. Lamberson, 3 Binn., 34 ----.. -.33 Brown v. Meyers, 40 Ohio St., 99-- - - - . . - 295 Brown V. Mims, 2 Tread. (S. C), 335 184 Brown v. Moore, 90 Hun, 169 ----...-. 156 Brown v. Niokerson, 5 Gray, 1 ..... 87, 152, 373, 873 Brown v. Remington, 7 Wis., 463 -.-.....78 Brown v. Vannaman, 85 Wis., 451; 55 N. W. Rep., 183 - 74, 169, 193, 334, 236 Bruce v. Soule, 69 Me., 563 198, 199 Brueshaber v. Hertling, 78 Wis., 498 --..... 317 Brunson v. Lynde, 1 Root (Conn.), 354 -.....,- 825 Bryan v. Gun, 37 Ga., 378 661 Buck V. Hersey, 31 Me., 558 187 Buckley v. Knapp, 48 Mo.. 153 780, 875, 878 Buckley v. O'Niel, 113 Mass., 193 143 Buddington v. Davis, 6 How. Pr., 401 658 Buhler v. Steever, 8 Whart (Penn.l, 313 898 Buhler v. Wentworth, 17 Barb.. 649 659 Bullard v. Lambert, 40 Ala.. 304 798 Bullock V. Com., 4 Wend., 531 127 Bullock V. Koon, 9 Cow., 30 826 Bunton v. Worley, 4 Bibb, 38 789 Burford v. Wible, 32 Penn. St., 95 803 Burgwin v. Babcock, 16 IlL, 28 550 Burke v. Miller, 6 Blackf., 155 791, 829 Burke v. Ryan, 36 La. Ann.. 951 469 Burkett v. McCarty, 10 Bush, 758 255 Burkhalter v. Coward, 16 S. G, 435 880 Burlingame v. Burlingame, 8 Cow., 141 -.-.-. 100, 424 Burnett v. Simpkins, 24 IlL, 264 875 Burnett v. Smith, 33 Hun (N. Y.), 50 886 Bums V. Webb, 1 Tyler (Vt), 17 790, 791 Bnrson v. Edwards, 1 Ind., 164 773 Burtv. Advertiser Co., 154 Mass., 338; 38 N.E. Rep., 1- - - 228,529 Burt V. McBaine, 29 Mich., 260 161, 162 Burtch v. Nickerson, 17 Johns., 319 - . . - 98, 170, 196, 605, 616, 617 Burton v. Burton, 3 Iowa, 316 97, 100, 105, 643 Burton v. Holmes, 16 Iowa, 253 816 Burton v. Marsh, 6 Jones (N. C), L., 409 819, 834 Burton v. Worley. 4 Bibb, 38 789 Bush v. Prosser, 13 Barb., 321 104, 801 Busher v. Sculley, 107 Ind.. 346 156 Butler V. Howes, 7 Cal., 87 865 Butler V. Wood, 10 How. (N. Y.), 323 133, 631, 635 Butterfleld v. Buflfum, 9 N. H.. 156 123, 124, 255, 817 Buttler V. Man, 9 Abb. N. C. (N. Y), 49 745, 746 Byam v. Collins, 111 N. Y., 143; 19 N. K Rep., 75 339, 330, 477, 479, 481, •^ 485,495 Byer v. Fireman's Jour. Co., 11 Daly, 257 258, 259 Byers v. Martin, 3 Col T., 605 - ' 51, 581 Byram v, Aikin, 67 N. W. Rep., 807 „78 Bynum v. County of Burke, 2 S. E. Rep., 170 833 Byrket v. Monohan, 7 Blackf., 83 824 CaldweU v. Vicksburg, etc, R. R. Co., 41 La. Ann., 634 - - - 935 Calkins V. Sumner, 13 Wis., 193 .... 419,449,450,456,458 Call V. Larabee, 60 Iowa, 312 53 Callahan v. Ingram, 132 Mo., 385 - " , " " " " " „„" |i? Calloway V. Middleton, 3 A. K. Marsh. (Ky.), 372 . . - - 884,896 Camp V.Martin, 23 Conn., 86 ^^^'Iz Campbellv. Bannister, 79 Ky., 305 qko IqI Campbell V. Butts, 3 N. Y., 173 350.794 Xliv TABLE OF OASES CITED. Campbell V; Campbell, 54 Wis„ 90 S53, 879 Cannon v. Phillips, 2 Sneed, 185 - 644 Canterbury v. Hill, 4 Stew. & P., 334 125, 645 Care v. Shelor, 8 Munf., 193 " " ?o5 Carlook v. Spencer, 7. Ark., 12 126 Carmiehaelv. Shoil,21Ind., 66 'J' - "„ „ " 308 Carpenter v. Dennis, 3 Sandf., 305 193, 617, 641 Carpenter v. Willey, 65 Vt, 168 - - -. 539 Carroll V. White, 33 Barb., 615 .... 183,190,371,374,818 Carter v. Andrews, 16 Pick, 1 ... 113, 113, 118, 300, 607, 620 Carter v. Carter, 63 111., 439 374 Carter v. McDowell, Wright (Ohio), 100 773 Caruth v. Eioheson, 9 N. W. Eep., 633 657 Case V. Buckley, 15 Wend., 337 103, 111, 349, 603 Case V. Marks, 30 Conn., 348 875,889,890 Casey v. Hulgan, 31 N. E. Rep., 333 844 Cass V. Anderson, 33 Vt., 183 837 Cass V. N. O. Times, 37 La. Ann., 214 886 Casselman v. Windship, 3 Dak., 393 61, 355 Castla V. Houston, 19 Kan., 417 658 Cates V. Bowker, 18 Vt., 33 753, 805 Cavanaugh v. Austin, 43 Vt., 576 333 Cervenyv. News Co., 139111., 345 78 Chace v. Sherman, 119 Mass., 387 809 Chadsey v. Thompson, 137 Mass., 136 881 Chaddock v. Briggs, 13 Mass., 238 37, 101, 187, 198 Chaffin V. Lynch, 83 Va., 106; 6 S. E. Rep., 474 - - - 394,513,519 Chamberlain v. Vance, 51 CaL, 75 333, 334, 880 Chambers v. White, 2 Jones (N. C), L., 383 648 Chandler v. Holloway, 4 Port. (Ala.), 17 644, 838 Chandler v. Robinson, 7 Ired. (N. C.) L., 480 828 Chapiu V. Lee, 18 Neb.. 440 41, 140, 168, 198, 849 Chapin v. White, 103 Mass., 139 - - 807 Chaplin v. Cruikshanks, 8 Har. & J., 347 - 100 Chapman v. Gillet, 3 Conn., 40 127 Chapman v. Odway, 87 Mass., 593 ....... 663, 803 Chapman v. Smith, 13 Johns., 78------- 605, 644 Chenery v. Goodrich, 98 Mass., 324 ----..- 55, 74 Cherltree v. Roggen, 67 Barb., 134-------- 238. Cherry v. Slade, 3 Hawks (N. C); 400 - - - - - - - 790 Chesebro v. Powers. 78 Mich., 473 -------- 204 Chicago, etc.. R R. Co. v. Flexman, 103 111., 546 - - - - - 876 Child V. Homer, 80 Mass., 510 - . ----- 50, 520, 904 Childers v. San Jose Mercury Printing & Publishing Co., 105 Cal ^, . 284 - - - 98, 169, 320, 892 Cbipman v. Cook, 2 Tyler, 456 .--... 184, 186 788 Christol V. Craig, 80 Mo., 367 . - 88* 640 Chubb V. Gsell, 34 Penn. St., 114 ----.. - 773I 823 Cincinnati, etc., Co. v. Timberlake, 10 Ohio St, 548 - - - 55' 579 City of Plymouth v. Miller, 20 N. E. Rep., 335 - - - . - ' 834 Claflin V. Smith, 66 How., 168 - . 745 Clark V. Binney, 3 Pick., 113 - .- - - - . . - 82 918 Clark V. Brown, 116 Mass., 509- - - - - - . . -'sOO Clark V. Crietzburg, 4 McCord, 491 - - - - - . . . giiq Clark V. Dibble, 16 Wend., 601 gOO Clark V. Munsell, 6 Met., 373 - . . . 353 355 747 74fi hi 7 eiarksonv. McCarty,5Blackf., 574- - . - f »^' f »• W- 7«. «l^ Clarkson v. Vincent, 33 La. Ann., 613 213 Clay V. People, 86 111., 147 50 245 378 380 Clemant v. Creditors, 37 La. Ann., 693 - - - - . . ' . ' gdl Clements v. Maloney, 55 Mo.. 353 - - . . . 890 Clemmons v. Danforth, 67 Vt., 617: 33 Atl. Rep., 636 - - I I 477 Cleveland v. Detweiler, 18 Iowa, 399 - - . - . . 149 Clews V. Bank of New York, 11 N. E. Rep., 814 .... I 834 AMERICAN CASES. xlv Clifford V. Cochrane, 10 Brad., 570 ... i-o Ifl'' '^7(5 Clugston V. Garretson. 103 Cal.. 441 .... 799 AMERICAN CASES. xlvil Davis V. Matthews, 2 Ohio, 357 - - .... 660 Davis V. Marxhausen, 103 Mich., 315 ------- 330 Davis V. Ruff, Cheves, 17 - ■ ... . . 190^ 781 Davis v. Sladden, 21 Pa& Rep., 140 - - .... g-'), 157 Dayton v. Rockwell, 11 Wend., 140 - - .... 127, 252 Decker v. Gaylord, 85 Hun. 584 586 Deckey v. Andrews, 32 Vt, 55 - - - ... .106 Deford v. Miller, 8 Penn., 103 - - 84 De Forrest v. Scote, 16 Johns.. 123 - - - - - 635 Delaney v. Kaetel, 81 Wis., 358 - - - - - 317, 318 Delaware State F. & M. Ins. Co. v. Crosdale, 6 Houst, 181 - - - 228 Deniarest v. Harring, 6 Cow., 88 - - .... 98, 103, 187 Democratic Publishing Ca v. Jones, 83 Tex., 303; 18 & W. Rep., 653 - 926 De Moss V. Haycock, 15 Iowa, 149 371, 275 Dempewolf v. Hills, 58 N. Y. Sup. Ct., 105 726 Dempey v. Paige, 4 R D. Smith, 318 305, 821 Dennis v. Johnson, 42 Minn., 301; 44 N. W. Rep., 68 - 168, 176, 182, 192 Denver, etc., R. R Ca v. Henderson, 13 Paa Rep., 910 - - 834 De Pew V. Leal, 5 Duer (N. Y.), 663 - 746 De Pew V. Robinson, 95 Ind, 109 132, 634 De Senancour v. Societe L. P., 16 N. K Rep., 553 - - - - 281 Detroit Daily Post v. McArthur, 16 Midi., 447 - - - 395, 541, 878 Dewit V. Greenfield, 5 Ohio, 235 824 Dewitt V. Wright, 77 Cal., 256 - - 357 Dexter v. Spear, 4 Mason, 115 87, 339, 241 Dexter v. Taber, 12 Johns., 339 104, 305, 306 Deyo V. Brundage, 13 How. Pr., 221 - - - - - 641 Dial V. Holton, 6 Ohio St., 238 97, 534, 526 Dias V. Short, 16 How. Pr., 328 - - - - - - 105, 597 Dicken v. Shepherd, 22 Md., 399 - - - - 258, 616, 779 Dickey v. Andrews, 32 Vt, 55 107 Dickinson v. Barber, 9 Tyng, 218 371, 790 Dillard v. Collins, 25 Gratt (Va.), 343 330, 879 Diossy v. Rust, 46 N. Y. Sup. Ct, 374 746 Diot v. Tanner, 20 Wend., 190 - - - ... 634, 645 Distonv. Rose, 60N. Y.. 122 110 Divens v. Meredith, 47 N. E. Rep., 143 - - - - - - 145 Dixon V. Allen, 69 Cal., 537 773, 785 Doan V. Kelley, 121 Ind., 413 - 176, 193 Dodds V. Henry, 9 Mass., 262 101, 178 Dodge V. Bradstreet. 59 How. Pr., 104 364 Dodge V. Colby, 108 N. Y, 445 305, 208, 211 Doe V. Roe, 32 Hun, 638 ... 163 Dohertv v. Brown, 10 Gray, 350 806 Dole v.'Lyon, 10 Johns., 447 342, 353, 356, 656 Dole V. Van Rensselaer, 1 Johns. Cas., 830 - - - - 175, '177 DoUoway v. Turrell, 26 Wend., 383 177 Donaghue v. Coffey, 58 Conn., 43 61, 03, 64, 553 Dooling V. Budget Co., 10 N. B. Rep., 809 62, 331 Dorsey v. Whipps, 4 Gill (Md.), 457 634 Doss V. Jones, 5 How. (Miss.), 158 - 348, 774 Dottarer v. Bashey, 16 Penn. St, 204 636 Douge V. Pierce, 18 Ala., 127 790,791,814 Douglass V. Craig, 3 La. Ann., 639 884 Douglass V. Douglass, 38 Pao. Rep., 934 156 Douglass V. Tousey, 3 Wend. (N. Y), 853 .... 835, 880, 920 Doullut V. MoManus, 87 La. Ann., 800 - - - - - 640 Dowall V. Griffith, 3 Har. & J., 30 773 Dowdney v. Volkening, 37 N. Y. Sup. Ct, 313 748 Dowling V. Livingstone (Mich.), 32 L. U. A., 104; 66 N. W. Rep., 325 - 564, 565, 566, 567, 568, 569, 573, 586 Downey v. Dillon, 53 Ind., 443 657, 658, 797, 823 Downing v. Brown, 3 Colo., 571 796 Downs V. Hawley, U2 Mass., 237 oo3 Xlviii TABLE OF OASES CITED. Drakely V. Gregg, 75 U. a, 409 831 Drummond v. Leslie, 5 Blackf.. 453 }^l Dudley v. Briggs. 141 Mass., 582 - ^^o Dudley V. Horn, 21 Ala., 379 " ^''' Iao Duel V. Agan, 1 Code Rep., 134 ,„= on? Dufresne V. Weise, 46 Wis., 290 J2H2o Dugald V. Coward, 96 N. C, 368 163. 883 Dulses V. Clark, 2 Blackf., 20 - 160 Dun V. Hall, 1 Carter (Ind.), 345 50, 378 Duncan v. Brown, 15 B. Mon., 186 50, 907 Duncan v. Griswold, 92 Ky., 546 204 Duncan v. Jackson, 16 Fla., 338 "„ ?.„ Dunham v. Powers, 42 Vt., 1 419. 4o9 Dunlap V. Glidden, 31 Me., 435 449 Dunn V. Winters, 2 Humph., 512 37. 63 Dunnell v. Fisk, 53 Mass., 554 - 117, 118, 612 Dunsee v. Norden, 36 La. Ann., 78 400, 477 Dwinnels v. Aiken, 2 Tyler (Vt), 75 800 Dwyer v. Fireman's, etc., Co., 11 Daly (N. Y.), 248 43 Dyer v. Morris, 4 Mo., 214 159, 618 Eagan v. Gantt, 1 McM. (S. C), 468 790, 791 Eames v. Whittaker, 123 Mass., 342 139, 501 Easley v. Moss, 9 Ala., 266 , 389, 407, 476, 509, 519 Eastburn v. Stevens, Litt. (Ky.) Sel. Cas., 83 - - - - - 803 Easterwood v. Quinn, 3 Brev. (8. C), 64 793 Eastland V. Baldwell, 3 Bibb (Ky.), 33 103,660,884 Eaton V. Hill, 50 N. H., 235 370 Eaton V. Lancaster, 10 AtL Rep., 446 ....-.- 834 Eccles V. Shannon, 4 Har., 193 126 Eokart v. Wilson, 10 S. & R., 44 130, 610 Eden v. Legare, 1 Bay, 171 - 273 Edgar v. MoCutchen, 9 Mo., 768 276, 624 Edgerly v. Swain, 33 N. H., 478 616 Edsall V. Brooks, 3 Rob., 284 64, 83, 137, 272, 545, 557 Edwards v. Burris, 60 Cal., 157 313 Edwards v. Chandler, 14 Mich., 471 58, 389, 477, 769 Edwards v. Howell, 10 Ired. (N. C.) L., 311 853 Edwards v. Kansas City Times, 33 Fed. Rep., 813 - - 885, 888, 894, 895 Eislie V. Walther, 4 N. Y. S., 385 88 Elam V. Badger, 23 111., 498 159, 283, 408, 641, 677 Ellington v. Taylor, 46 La. Ann., 871 133 Elliot V. Boyles, 31 Penn. St., 65 773 Ellis V. Buzzell, 60 Me., 310 798 Ellis V. Kimball, 33 Mass., 133 258, 640, 698 Ellis V. Whitehead, 95 Mich., 105-------- 349 Ellsworth V. Hayes, 71 Wis., 427 ------ 86, 261, 505 Elmer v. Fessenden, 151 Mass., 359 - . > - - . . 104, 113, 344 Elsas V. Brown, 68 Ga., 117 --------- 88 Else V. Ferris, Anth. N. P., 23 - - - - - - - - 194, 791 Emerson v. Morrell, 55 Ind., 265 -.-.... 156, 163 Emery v. Miller, 1 Den., 208- -•- - - - - - 123, 827 Emmons v. Sheldon, 36 Wis., 648 ----... 93,5 Enders v. Beck, 18 Iowa, 86----.-... 305 Enos V. Enos, 135 N. Y., 609; 33 N. E. Rep., 123 349 Erber v. Dun, 13 Fed. Rep., 536; 4 MoCrary C. Ct., 160 - - . 403, 49.1 Estes V. Estes, 75 Me. 478 .......... 249 Etohison v. Pergerson, 88 Ga., 630; 15 S. E. Rep., 680 - - 391, 529, 560 Evans v. Smith, 5 T. B. Mon. (Ky.), 363 885, 894, 893 Evans v. TifSns, 3 Grant (Penn.), Cas., 451 -.....' 024 Evening Journal v. MoDermott, 44 N. J. L., 430: 89 Am. Rep.. 606- 43 N.J. L., 488- - • . . 361 Evening News v. Tryon, 42 Mich., 549 . • - 537, 841, 886, 895, 910 Everett Piano Co. v. Bent., 60 111. App., 372 . - . . 204> 246, 246a AMEKICAK OASES. xlix Everette v. Stowell, 14 Allen, 32 830 Eviston V. Cramer. 47 Wis.. 659 - - - - 70, 83, 177, 178, 325, 846 Express Printing Co. v. Copeland, 64 Tex., 354 - - 577 Faggv. Roberts. 67111., 485 .-•.-. 663,886,907,918 Fahey v. Crotty, 29 N. W. Rep.. 876 - - - - - 876 Fahrv. Hayes(N. J.), 13 Atl. Rep., 361 345,399 Fairchilds v. Adams, 11 Cush., 549 - . - - - 530 Fallenstein v. Boothe, 18 Mo.. 437 - - 818 Farnsworth v. Storrs. 5 Cush., 413 65, 580 Faw-cett v. Charles, 13 Wend., 473 - - - - 49, 57, 403 Fawcett V. Clark, 48 Md., 494 - 295 Fero V. Eusco, 4 N. Y., 163 347, 785 Ferry v. Foot, 13 La. Ann.. 894 8.53 Fiddler V. Delevan, 30 Wend., 37 . - - - . . - 661 Field V. Colson, 93 Ky., 347 69, 81, 98, 137, 535 Filber v. Dauterman, 26 Wis., 530 - 97, 133 Finch V. Finch, 21 S. C, 343 ... 87 Finch V. Gridley, 35 Wend., 469 758, 754 Finch V. Vifquain, 11 Neb., 280 - - - - - - 50, 85 Fish V. Soniat, 83 La. Ann.. 1400 ... ... 397 Fisher v. Rottereau, 2 McCord, 189 ...... 105 Fitch V. De Young, 5 Pac. Rep.. 364 - 49 Fitzgerald v. Redfield, 51 Barb., 484 .... 170, 183, 193 Fitzgerald v. Robinson, 113 Mass., 371 - - - - 135, 170, 530 Fitzgerald v. Stewart, 53 Penn. St., 343 - - ... 824 Fitzpatrick V. Daily States Pub. Co., 48 La. Ann., 1116; 30 So. Rep., 173 - - 350,357,888 Fitzsimmons v. Cutter, 1 Aik., 83 ..... 636 Flint V. Hutchinson's Smoke Burner Co.. 110 Mo., 493 - - 246, 346a, 3466 Flaniraingham v. Boucher, Wright (Ohio), 746 ..... 773 Fiitcraft v. Jenks, 3 Whart, 158 K"^! Fogg V. Boston & L. E. Co., 30 N. E. Rep., 109 - 244, 245, 361, 364, 378 Folsom V. Brown, 35 N. H., 114 - - ■ - - - 659. 796 Fonville v. Nease, Dudley (S. C), 303; 33 Am. Dec, 49 329, 235, 338, 515, 762 Foot V. Brown, 8 Johns., 64 - - 173 Forbes v. Johnson, 11 B. Mon., 48 65, 360, 553, 579 Forbes v. Meyers, 8 Blackf., 74 - - - - - - 333, 786 Fornan v. Childs, 66 111., ,544 - - - .... 658 Forrest v. Hanson, 1 Cranch, C. C, 163 - - .... 372 Forsyth v. Edmiston, 5 Duer. 653 - - - .... 645 Forward V. Adams, 7 Wend., 204 - - - .... 176 Foss V. Hildreth, 93 Mass., 76 658 Foster V. Scripps, 39 Mich., 376 , 189,395,591 Foster v. Small, 3 Whart., 138 190 Fowie T. Eobbins, 13 Mass., 498 - 121, 126 Fowler v. Chichester, 36 O. St., 9 - - - - - . 268, 890 Fowler v. Wallace, 131 Ind., 347; 31 N. E. Rep.. .53 - - 796, 800 Fowles V. Bowen, 30 N. Y., 20 - - 324, 325, 335, 400, 408, 493, 775. 782 Fox V. Vanderbeck, 5 Cow., 513 - - - 2D5, 805 Francis v. Wood, 75 Ga., 648 - - 409 Frank v. Dunning, 38 Wis., 270 249, 257 Frank V. Kaminsky, 109 111., 26 - 753,763 Franklin v. Brown, 67 Ga., 272 87 Fredrichson v. Johnson, 60 Minn., 337 - - ... 349 Freeman v. Price, 3 Bailey (S. C.;, 115 - - ... 803 Freeman V. Sanderson, 123 Ind., 264 - - - 104,113,156 Freethy v. Freethy, 43 Barb., 641 - - - 305 French V. Creath, Breese (111.), 31 - - - 109 Fresh v. Cutter, 73 Md., 87; 20 Atl. Rep., 744 - - - - 490 Frisby v. Stake, 9 S. W. Rep., 463 - - - - - 978 Fritz V. Williams, 16 So. Rep., 359 - - - - - - 805 FroUch V. McKiernan, 84 CaL, 177 98, 139, 228 ■I TABLE OF CASES CITED. Fry V. Bennett, 4 Duer, 247; 28 N. T., 324 190. 567, 577, 589, 630, ^39, 850, ' 875,877 Fry V. McCord, 95 Tenn., 678 - 168 Fuller V. Dean, 31 Ala., 654 803 Fuller V. Delavan, 20 Wend., 67 - - - - - - 661 Fuller V. Fenner, 16 Barb., 333 783. 858 Funk V. Beverly, 13 N. E. Eep., 573 156, 157, 353 Gabe V. McGinnis, 68 Ind., 538 - ... -. - 51,134,290 Gaines v. Belding, 56 Ark., 100; 19 S. W. Rep., 236 - - - - 118 Gaines v. State, 7 Lea (Tenn.), 410 963, 963 Gage V. Robinson, 12 Ohio, 350 - - 653 Gage V. Shelton, 3 Rich., 343 93, 103, 105, 636 Gaither v. Advertiser Co., 103 Ala., 458 - • - - - 74, 176 Galloway v. Courtney, 10 Rich. (S. C), 414 - - - - 883, 894, 895 Gallup V. Belmont, 63 Hun, 618 78 Galveston, etc., Ry. Co. v. Smith, 81 Tex., 479 - - - - 78 Ganvreau v. Sup. Pub. Co., 63 Wis., 403 - - - - - - 189 Gardinier v. Knox, 37 Hun (N. Y.), 500 - - - - - 648 Gardner v. Dyer, 5 Gray, S3 - - 626 Garn v. Lookard (Mich., 1896), 65 N. W. Rep., 764 - - - - - 393 Garr v. Seldon, 6 Barb., frl4; 4 Comst., 91 183, 183, 184, 189, 419, 428, 469, 470, 561 Garrett v. Diokerson, 19 Md., 418 - - - - - - - 271, 275 Gassett v. Gilbert, 6 Gray, 94 - - - 395, 404, 485, 509, 519, 526, 533, 560 Gates V. Bowker, ISVt., 33 - 820 Gates V. Meredith, 7 Ind., 440 335, 371 Gault V. Babbitt, 1 Brad. (111.), 130 .- 656, 832, 833 Gazyski v. Colburn, 11 Gush., 10 • - 360, 364, 366 Geary V. Burnett, 53 Wis., 444 108,151 Geisler v. Brown, 6 Neb., 354 - 870 Georgia v. Kepford, 45 Iowa, 48 - - .... 851, 859 Giacona v. Bradstreet Co., 48 La. Ann., ll&l . . . ■ - - 168 Gibbs V. Dewey, 5 Cow., 503 - 98, 111, 139 Gibson v. Cincinnati Enquirer, 3 Flip. C. Ct., 121 - - 815 Gibson v. Gibson, 43 Wis., 23--- 365 Gibson v. Williams, 4 Wend., 320 100,308,767,775 Giddens v. Mirk, 4 Ga., 360 - • - - . 98, 103, 133 Gidney v. Blakes, 11 Johns., 54 . - . . 25a 615 617 Gilbert v. Field, 3 Cai., 329 616 Gilbert v. People, 1 Denio, 44 - - - . - 419 424, 445 Giles V. Stole, 6 Ga., 276 - - - . ....'. 50 Gillett V. Mason, 7 Johns., 16--- --... J17 Gillian v. S. & N. Ala. R. R. Co., 70 Ala., 268 - ... 345 Gillis V. Peck, 20 Conn., 338 - - - 803 Gilman v. Lowell, 8 Wend., 573 . - - - - 121 Gilmer v. Eubanks, 13 111., 371 -..-... 3^6, 331 333 Gilmor v. Borders, 3 Miss.. 834 ....... .' 333 Girard v. Beach, 3 E. D. Smith, 337 261 Godshalk v. Metzgar, 17 Atl. Rep., 315 - - ■ - . . 53 54 Goldberg v. Dobbertine, 46 La. Ann., 1303 --.... 584 Golderman v. Stearns, 1 Gray, 181 - .... . igg 199 30O Gomez v. Joyce, 1 N. Y. S., 337 . - . . . ' . ' 845 Goodbeard v. Ledbetter, 1 Dev. & Bat., 13 . - . 530 903 907 Goodrich v. Hooper, 97 Mass., 1 - . . - . . .'.* 351 Goodrich v. Walcott, 3 Cow., 381 - ...... 647 Goodspead v. East Haddam Bank, 33 Conn., 531 - ... 363 Gordon v. Spencer, 3 Blackf., 386 . - .... S14 Gore V. Blethen, 31 Minn., 80--- -.-.gS 179 Gorham v. Ives, 2 Wend., 584 --..... ' jgg Gorman V Sutton, 32 Penn. St., 247 347, Vs's, 800 Gorse v. State, 71 Ala., 7 ' ' naA Gosling v. Morgan, 33 Penn. St., 273 ---,.. gl's 624 Gott v. Pulsifer, 122 Mass., 235 55, 217, 223, 400, 566, 567, 568, 569, 570.'573, 589, 871 AMEJBICAN CASES. H Gottbehuet V. Hubacheck, 36 Wis., 515 ... . ^77 Gou^h V. Goldsmith, 44 Wis., 263 - - - . . 357 Gough V. St John, 16 Wend.. 646 - - . 87« Gould %■. Weed, 13 Wend., 12 - - . . goy Graeter v. Hogan, 3 Ind. App., 193 - - - . . 139 Gniham v. Cass Circuit Judge, 66 N. W. Rep., 343 - - 447 Grand Rapids School Furniture Co. v. Haney School Furniture Co 92 Mich., 558; 53 N. W. Rep., 1009 - - . - - - 240, 246a Grant v. Hover, 6 Munf. (Va.), 13 - - - . . .' 79'j Gray v. Ellis, 83 La. Ann., 349 - - - - . - 313 Gray v. Nellis, 6 How. Pr., 290 - - - . . . - 646 Gray v. Pentland, 4 S. & R., 420 321 543 Gray v. Shelton, 8 Rich., 242 - - - ' 133 Greeley v. Cooper, 1 Den., 347 - . - . . . 37 Green v. Long, 2 Cai. Rep., 91 - - - - 9,54 Greenwood v. Cobbey, 26 Neb., 449 - - . . . 134 Gregory v. Chambers, 78 Ma, 294 - - - - . - - - . 935 Gribble v. Pioneer Press Co., 34 Minn., 343 - 50, 184, SOS, 333, 350, 767, 831 Griebel v. Rochester Printing Co., 14 N. Y. S., 848 - 849 Griffin v. Moore, 43 Md., 246 - - . . . . 135^ jgg Griffon v. Blan, 12 La. Ann., 5 .... . 398,' 213 Griggs V. Vickroy, 12 Ind., 549 . - 643 Gronan v. Kukkuck, 59 Iowa, 18 - - . . . . 520, 903 Grove v. Brandenburg, 7 Blackf., 234 ... . . 449 Gndger v. Penland, 108 N. C, 593 - - . . 131 Gunning V. Appleton, 58 How. Pr., 471 .... . . 283 Guth V. Lubach, 40 N. W. Rep., 681 86, 144 Hackett v. Providence Tel. Publishing Ca. 18 R L, 589 - - - 98 Haeley v. Gregg (Iowa), 38 N. W. Rep., 416 87, 321, 349 Hahneman Life Ins. Ca v. Bebee, 48 III., 87 - - 609 Haight V. Cornell, 15 Conn., 74 ... . . 290 Haight V. Haight, 19 N. Y., 468 .... . . 106 Haight V. Hoyt, 50 Conn., 583 - 935 Haley v. State, 63 Ala., 83 - ... - - - 938 Hall V. Adkins. 59 Ma, 144 ... . . 114,395 Hall V. Montgomery, 8 Ala., 510 - - ... 127, 616 Hallam v. Post Pub. Ca, 55 Fed. Rep., 456 - - - 177, 315 Halley v. Gregg, 83 Iowa, 633 771 Hallock V. Miller, 2 Barb., 630 204 Hally V. Nees, 27 DL. 411 - 643 Halstead v. Nelson, S6 Hun, 149 - - - - 132, 397, 399, 403 Ham V. Wickline, 26 Ohio St., 81 .... 126 Hamilton v. Gleen, 1 Penn. St, 340 828 Hamilton v. Eno, 81 N. Y., 116 ... 81, 329, 396, 505, 533, 537, 578 Hampton v. Wilson, 4 Dev. (N. C.) L., 468 - . . 802 Hancock v. Stephens, 11 Humph. (Tenn.), 507 819 Hand v. Winton, 38 N. J. L., 132 50, 177 Haney v. Frost, 34 La. Ann., 1146 88 Haney Mfg. Ca v. Perkins, 78 Mich., 1; 43 N. W. Rep., 1073 - - - 373 Hann v. Wilson, 28 Ind., 296 - - - - - - - 825 Banners v. McClellan, 37 N. W. Rep., 389 815, 891 Hanning v. Bassett, 13 Bush, 361 - ... . 333 Hansbrough v. Stinett, 25 Gratt, 495 ----- - 280, 623 Harbison v. Shook, 41 111., 141 - - - - - 810, 847, 875, 876, 881 Harcourt v. Harrison, 1 Hall OST. Y.), 474 - - . 179 Hardin v. Cumstock, 2 A. K. Marsh., 480 428 Hardin v. Harshfield (Ky.). 12 S. W. Rep., 779 - - - - 84 Harding v. Brooks, 5 Pick., 244 .... 105, 118, 265, 372, 824 Hargan V. Purdy, 98 Ky., 424 182,189 Harmon v. Carrington, 8 Wend., 488 - 647 Harmon v. Cundiff, 82 Va., 239 98, 253 Harper v. Delph, 3 Ind.. 225 149. 283, 625 Harris v. Burley, 8 N. H., 256 003, 616 lii TABLE OF CASES CITED. Harris v. Huntington, 2 Tyler, 129 382, SOi Harris v. Minvielle. 48 La. Ann., 908; 19 So. Eep., 935 182, 193, 350. 3n7 Harris v. Purdy, 1 Stew., 231 616, 838 Harris v. Terry, 98 N. C, 136 lOT Harris V. "Woody, 9 Mo., 113 616 Harris v. Zanone, 93 Cal., 59; 28 Pao. Rep., 845 - - 474 Harrison V. Findlay, 23 Ind.. 265 - . - - - - J 30 Harrison v. How, 67 N. W. Rep., 537 304 Harry v. Constantin, 14 La. Ann., 783 - 773 Hart V. Baxter, 47 Mich., 198 424,425,460,468,470 Hart V. Coy, 40 Ind.,S53 261 Hart V. Crow, 7 Blackf., 351 365, 366 Plart V. Printing Co., 79 Hun, 858 544 Hart V. Reed, 1 B. Mon., 166 321 Hartford v. State, 96 Ind., 461 577, 939, 967, 977 Hartsock v. Reddick, 6 Blackf., 255 .... 64, 460 Harttranft v. Hesser, 84 Penn. St., 117 - - - - 793 Harvey v. Coffin, 5 Blackf., 566 258, 616 Harwood v. Keeoh, 6 Thomp. & C. (N. Y.), 665; 4 Hun, 389 - - 396 Hasse v. State, 53 N. J. L., 34 970 Hastings v. Lusk, 22 Wend., 410 - - 331, 405, 419, 424, 438, 444, 448, 789 Hastings v. Stetson, 13 Lathrop (Mass.), 339 - - - 244, 353, 841, 889 Hatch V. Lane, 105 Mass., 394 --.------ 407 Hatch V. Potter, 2 Gilm. (111.), 725 329, 333, 785 Hatfield v. Gano, 15 Iowa, 177 ...... . 133 Hatfield v. Lasher, 81 N. Y., 246 162 Havemeyer v. Fuller, 10 Abb. N. C, 9 - . . - 250, 295, 623, 634 Hawkins v. Globe Pub. Co., 10 Mo. App., 174 - - - - 579, 663 Hawkins v. N. O. Printing Co., 39 La. Ann., 134 - - - 255 Hawks V. Patton, 18 Ga., 52.-.-.. . 642 Hawley v. Burgess, 9 Ala., 738 ..... . io3 Hawyer v. Hawyer, 78 111., 412 ........ 664 Hay V. Reid, 85Mioh., 396; 48N. W. Rep., 507 583 Haynes v. Cowden, 37 Ohio St., 293 878 Haynes v. Leland, 29 Me., 233 .--...... 355 Haynes v. Riohey, 30 Ind., 76 -----..- 149 171 Hays V. Ball, 73 N. Y., 418 293i 301 Hays V. Hays, 1 Humph., 403 .--...-. 130 610 Hays V. Mather, 15 Brad., 30----.... 194' 291 Hays V. Mitchell, 7 Blackf., 473 . .... . .104 105' 634 Haywood v. Foster, 16 Ohio, 88 '.' 794 Heft V. Jones, 9 Weekly Notes (Pa.), 541 746 Heilman y. Shanklin, 60 Ind., 434 .... 138,340,886,894,895 Heller v. Howard, 11 Brad., .^54 .... 233 293, 333, 516, 517 Hem mens V. Nelson, 138 N. Y., 517 - 156 Henderson v. Commercial Advertiser, 46 Hun, 504 - . - 183 184 Henry v. Hamilton, 7 Blackf., 506 - - . . . . . . ' 127 Henson v. Veatoh, 1 Blackf., 369 -.--.. . ggg Herman v. Bradstreet, 19 Mo. App., 337 ----- . 67 74 Herr v. Cromer, Wright (Ohio), 441 §23 Herrick v. Lapham, 10 Johns., 281 ...... . 770 701 Hersh V. Ringwalt, 3 Yeates, 508 mi. Herst V. Borbridge, 57 Penn. St., 62 aol Herzog v. Campbell, 47 Neb., 370 .. . . ' 1 tl Heslerr v. De Gant, 3 Ind., 501 coa Hess V. Fackler, 35 Iowa, 10 " 119 Hess v. Sparks, 44 Kan., 465 ... . ' q« iq? Hethrington v. Sterrv, 38 Kan., 426 - 70 sa Hewit V. Mason, 24 How. Pr., 366 10s Hibbard v. Ryan, 46 111. App., 313 . . ' Thn Hickley V. Grosjean, 6 Blackf., 351 - . . ro^ Hickman v. Jones, 76 U. S., 551 . . " So? Hicks V. Rising, 24 III., 516 ... . " ' " 7qs Hicks V. Walker, 2 Greene (Iowa), 440 . - . . I " " 865 AMERICAN CASES. " ]iii Hill V. Canfield, 56 Penn. St, 454 831 Hill V. Ward, 13 Ala., 810 205, 908, 313 Hillhouse v. Dunning, 6 Conn., 407 ----- 33 37 Hillhouse v. Peck, 2 Stew. & Port.. 395 98, 103 Hinkle v. Davenport, 38 Iowa, 355 - - - 333, 349, 360, 366, 886, 895 Hitchcock V. Moore, 37 N. W. Eep., 914 - 833 876 878 Hoag V. Cooley, 33 Kan.. 387 - - - - . - 87 Hoag V. Hatch, 23 Conn., 590 - - - - - - 98, 99, 100, 103 Hoar V. Wood, 3 Mete., 193 - - - 419, 434, 435, 428, 435, 444, 447, 460 Hoard v. Ward, 47 Vt., 657 - - - - - . . 867 Hoboken Printing & Publishing Co. v. Kahn (N. J., 1896), 33 Atl. Eep., 383; Id., 1060 . . 900 Hodges V. The State, 5 Humph. (Tenn.), 113 971, 973 Hoffland v. Journal Co., 88 Wis., "369 98 Hogg V. Dorrah, 3 Port, 213 178, 179 Hogg V. Wilson, 1 N. & M., 216 - 105 Holcomb V. Cornish, 8 Conn., 375 - - - - - 961, 963, 964 Hollingsworth v. Shaw, 19 O. St, 430 99 Hollis V. Meaux, 69 Cal., 635 445 Holmes v. Brown, Kirby (Conn.), 151 - - - - - 831 Holmes v. Holmes, 44 IlL, 148 844, 881 Holmes v. Johnson, 11 Ired. (N. C.) L., 55 - - - - 803 Holmes v. Jones, 3 N. T. S., 156; 147 N. Y., 59 . . - - 883, 935 Holt V. Parson, 23 Tex., 9 400 Holt V. Turpin, 78 Ky., 433 - - - . . - 136 Holton V. Mussey, 30 Vt, 365 860, 861 Hood V. State, 56 Ind., 263 - - - . . - 153 Hook V. Hackney, 16 && R. 385 177 Hook V. Hancock, 5 Munf. (Va.), 546 799 Hooley v. Burgess, 9 Ala., 728 - - - - 119 Hooker v. New Haven, etc., R'y Co., 14 Conn., 146 - - - - 36a Hooner v. Martin, 54 Ga., 648 133 Hopkins v. Beedle, 1 Cai., 347 131, 123, 123, 124, 126, 255 Hopkins v. Smith, 3 Barb., 599 - 801, 837 Horn V. Foster, 19 Ark., 846 853 Horner v. Englehardt, 117 Mass., 539 287 Homer v. Marshall's Adm'x, 5 Munf., 466 371 Horney V. Bois," 1 Penn., 13 - - - - - - - -123 Hornsby v. South Carolina R R Co., 1 S. E Eep., 594 - - - 834 Hosmer v. Loveland, 19 Barb., Ill 395 Hotohkiss V. Oliphant, 2 Hill, 510 - - - 55, 560 Hotchkiss V. Olmstead, 37 Ind." 34 306 Houghtailing v. Kelderhouse, 2 Barb., 530 - . - - - 876 Housely v. Brooks, 20 111., 115 - - . . - . 843, 847, 878 Houston V. Wooley, 37 Ma App., 15 - - - 93, 234, 235, 236 Hovey V. Rubber T. P. Co., 57 N. Y., 119 - - - . - 287, 333 How V. Bodman, 1 Disney (Ohio), 115 526 Howard v. Patrick, 43 Mich., 131 - - - . - 876 Howard v. Sexton, 4 N. Y., 157 - 350, 775 Howard v. Stevenson, 2 Treadw., 408 - - 140 Howard v. Thompson, 21 Wend., 319; 34 Am. Dea, 238 - 82, 407, 505, 542, 788 Howe V. Perry, 15 Mass., 506 - - - - - 785, 812, 889 Howe Machine Ca v. Souder, 58 Ga., 64 - ----- b51 Howell V. Cheatem, Cooke (Tenn.), 247 774 Howells V. Howells, 10 Ired. (N. C.) L., 84 883, 884 Rowland v. Flood, 160 Mass., 509; 86 N. E. Rep., 483 - - - 391, 901 Howland v. Manufacturing Co., 156 Mass., 543; 31 N. E. Rep., 656 - 771 Hoyt V. Smith, 32 Vt, 304 - - - 640 Hubbard V. Rutledge, 57 Miss., 7 325,498,881 Hudson V. Garner, 23 Mo., 433 617 Hume V. Arrasmith, 1 Bibb, 165 - 119 Humphreys v. Parker, 53 Me., 502 - - . . - t<47, 878, 890 Huuckel V. Voneiif, 69 Md., 179; 14 Atl. Rep., 500 - - 398. 450, 458 Hunt V. Bennett, 19 N. Y., 173 - - - - 290, 405, 585, 538, 561, 573 liv TABLE OF CASES CITED. Hupfer V. Eosenfeld, 163 Mass., 131; 38 N. K Rep., 197 - - - 392 Hnrd v. Moore, 2 Oreg., 85 o** Hurtett V. Weines, 27 Iowa, 134 : Huse V. Inter-Ocean, 12 Brad. (111.), 627 „54 Huston V. McPherson, 8 Blackf., 663 °26 Hutchins v. Blood, 25 Wend., 413 . " ?^I Hutchinson v. Lewis, 75 Ind., 55 450, 4.59 Hutchinson V. Wheeler, 35 Vt., 330 „ ■ P^ Hutts V. Hutts, 51 Ind., 581 148,255,815 Hyde v. Bailey, 3 Conn., 463 791 Ingalls V. Allen, Breese, 233 - - - - . - - 112, 261 Inman v. Foster, 8 Wend., 603 355, 356, 887 Irish- American Bank V. Bader, 59 Minn., 329 ... - - 805 Irons V. Field, 9 E. I., 216 - - - - - - - - 198, 199 Jackson v. Pittsburgh Times, 152 Pa. St., 406 177 Jackson v. State, 11 Ohio St., 104 116 Jackson v. Stetson, 15 Mass., 48 - - - ... 774 Jackson V. Weisiger, 2 B. Mon., 214 ... - - - 143 Jacksonville Journal v. Beymer, 42 IlL App., 443 ... - 153 Jacobs V. Fyler, 3 Hill (N. Y.), 573 - - - ... 121, 123 Jacocks V. Ayers, 7 How. Pr., 215 652, 657 James V. Hungerford, 4 Gill & J., 403 134 James v. McDowell, 4 Bibb, 188 119, 303 Jarnigan v. Fleming, 43 Miss., 711 - - - ... - 356 Jarvis v. Hathaway, 3 John., 180 352, 404, 526 Jauch V. Jauch, 50 Ind., 135 - 886 Jean v. Hennesey, 69 Iowa, 372 -.-....- 351 Jellison v. Goodwin, 43 Me., 287 - 786 Jenkins v. Coekerham, 1 Ired. (N. C.) L., 309 . - - . 661, 803 Jennings v. Paine, 4 Wis., 358 - - .... 419, 433, 435 Joannes v. Bennett, 87 Mass., 169 - .... 397, 455, 486 Joannes v. Burt, 6 Allen, 236 88, 198, 309, 853 Joannes v. Jennings, 6 Thorn. & C. (N. Y.), 133; 4 Hun, 66 658 Johns V. Press Pub. Co., 19 N. Y. Super. Cfc, S07 544 Jolinson V. Bradstreet Co., 77 Ga., 177 ....... 403 Johnson v. Brown, 11 W. Va., 73.. ...... 435 Jolmson V. Commonwealth, 14 Atl. Rep., 435 - - - - 58, 979 Johnson v. Hitchcock, 15 Johns., 185 - - ... 218, 223 Johnson v. Land, 7 Ired. (N. C.) L., 448 - - .... gOO Johnson v. Morrow, 9 Port., 525 ... . 93^ J03 Johnson v. Robertson, 8 Port., 486 ...... lyg^ 190 Johnson v. Shields, 1 Dutch., 118 98, 103, 140, 193 Johnson v. St. Louis Despatch Co., 3 Ma App., 565 - 49, 268, 361 Johnson v. Stebbins, 5 Ind., 364 ...... 37^ 652 Jones V. Bland, 9 Atl. Rep., 275 ........ 333 Jones V. Cioel, 5 Eng. (Ark.), 593 ....... 652, 797 Jones V. Clapham, 5 Blackf., 88 ........' 355 Jones V. Diver, 23 Ind., 184 ---..... 183, 191 Jones V, Edwards, 57 Miss., 28- - . . - . . . .' $06 Jones V. Greeley. 35 Fla., 629; 6 So. Rep., 448 249 878 Jones V. Piatt, 60 How. Pr., 277 ' 747 Jones V. Townsend, 21 Fla., 4-31 .... . io4, 796, 883 Joralemon v. Pomeroy, 22 N. J. L., 271 - . . . . . ' . ' 626 Justice V. Kirlin, 17 Ind., 538 786 815 516 K V. H ,20 Wis., 239 - - 161 643 Karney v. Parsley, 13 Iowa, 89 . - - . . 786* 873 Kaucher v. Blinn, 29 Ohio St., 62 - - . . . 193' 200 Kay V. Fredrigal, 3 Penn., 221 .... - . ' 790 •Kean v. McLaughlin, 3 S. & R., 469 - . - ige 419 735 Kedrolivansky v. Niebaum, 70 Cal., 816 . . . ' - ' 156 Keiser v. Smith, 71 Ala., 481 - 520 gQg AMERICAN CASES. Iv Kellpv V. DDlon, 5 Ind., 4S6 - - - - - - OTi Kelley v. Flatherly. 14 Atl. Rep., 876 87 Kelly V. Lafitte, 28 La. Ann., 435 - ' 470 Kelly V. Waterbury, 87 N. Y., 179 - - - - 644 Kelsey v. Oil Co., 45 N. Y., 505 - .- 831 Kelmler v. Sass, 13 Mo.. 499 ------- 920 Kendall V. Stone, 5 N. Y., 15 - - - 204,305,206,208.311.313.31.8 Kennedy v. Derr, 6 Port (Ala,), 90 - - 791 Kennedy v. Giflord, 19 Wend.. 296 333, 647, 803 Kennedy V. Gregory, 1 Binn. (Penn.), 85- ... 885,895 Kennedy v. Holborn, 16 Wis., 457 - ... . gyg Kennedy v. Press Pub. Co., 41 Hun, 422 - 323 Kenney v. Nash, 3 Comst, 177 - 179, 616 Kent V. Bongartz, 15 R I., 73; 22 Atl. Rep., 1023 - - 177, 540, 553 Kent V. Bonzey, 38 Me., 435 909 Kent V. David, 3 Blackf.. 301 - - - - - - - 659 Kern v. Bridewell. 21 N. E. Rep., 664 159, 934 Kersclaugher v. Slusser, 12 Ind., 453 ...... (J37 Kibbs V. People. 81 111., 589 ... . . . . II4 Kidd V. Fleck, 47 Wis., 443 658, 798 Kidd V. Horry, 38 Fed. Rep., 773 246, 246a Kidder v. Parkhurst, 3 Allen (Mass.), 393 449 Kiene v. Ruff, 1 Iowa, 483 - - - ... 229, 234, 238, 763 Kimball v. Fernandez, 41 Wis., 309 - 535, 885 Kimm et aL v. Steketee, 48 Mich., 332 - . . - 321, 759, 763 Kimmio v. Stiles. 44 Vt., 351 - - - 853 Kincaid v. Bradshaw, 3 Hawks' Law R (N. C), 63 - - - 706, 800 King V. Patterson, 49 N. J. L., 417; 9 Atl. Rep., 705 - 326, 402, 477, 479 King V. Root, 4 Wend., 113 - - - - - 327, 345, 406, 893 King V. Wood, 1 N. & M., 184 - - - - - - 373 Kingsbury v. Bradstreet, 35 Hun, 212 63 Kinney v. Hosea, 3 Har., 77 - - - - - - 97, 103, 883 Kinney v. McLaughlin, 71 Mass., 3 351, 353 Kinney v. Nash, 3 N. Y., 117 - - - - - - 175, 177, 8-55 Kinney v. Wallace, 36 Cal., 462 - - - - - 911 Kinyon v. Palmer, 18 Iowa, 377 - - - - - 64, 656 Kirkpatrick v. Eagle Lodge, 26 Kan., 384 - - 515, 524, 525, 526, 533 Kirtley v. Deck, 3 Hen. & M. (Va.), 388 - - - - 803 Klein v. Lauman, 29 Mo.. 259 820 Klewin v. Bauman, 53 Wis., 244 1-56, 328, 846 Klinok V. Colby, 46 N. Y., 437 - - - - 494, 501, 511, 515, 534, 539 Klumph V. Dunn, 66 Penn. St., 141 - - - - - 99 Knapp V. Fuller, 55 Vt, 311 - - - - 259, 300, 753, 785 Knapp & Co. v. Campbell (Tex.), 36 S. W. Rep., 765 - - 890 Knight V. Foster, 39 N. H., 576 - - - - - 790, 701 Knight V. Lee, 80 Ind., 201 - - - - - - 918 Knight V. Sharp, 34 Ark., 602 - - - 616 Knott V. Burwell, 3 S. E. Rep., 588 - - - - ... 819 Knowles v. Peck, 43 Conn., 386 389, 476 Knowles v. State, 3 Day Cas. (Conn.), 103 - - - - 943 Koch V. Heideman, 16 111. App., 478 - - - - - 156, 158 Kowalsky, In re, 73 Cal., 130 - - ... 977, 978 Kraus v. Sentinel Co., 60 Wis., 425 633. 630 Krebs V. Oliver, 12 Gray, 239 - - .103,110,119,2,53,481,485,486 Kunholts V. Becker, 3 Denlo (N. Y.), 346 - - - - 860 LafoUette v. McCarthy, 18 Brad., 87 - . - - 139, ?5t Laing v. Nelson, 40 Neb., 253 864 Lake v. Bradstreet Co.. 32 Fed. Rep., 771 403 Lambert v. Pharis, 3 Head (Tenn.), 633 834 Lamos v. Snell, 6 N. H, 413 - - - ... . 884 Lamson v. Hicks, 38 Ala., 379 - - - - ... 419, 641 Land Trust v. Hoffman, 57 Fed. Rep., 333; 6 C. C. A., 358 - - 204 Landis v. Campbell, 79 Mo., 433 - - .... 231, 403 Ivi TABLE OF OASES CITED. Lane v. Wells, 7 Wend., 175 - - 801 Langhead v. Bartholomew, Wright tOhio), 90 - - - 360 Lanius v. Druggist Pub. Co., 22 Mo. App., 13 - - - - 8Sl Lanning v. Christy, 30 Ohio St., 115 - - - - - 470 Lansing v. Carpenter. 9 Wis., 540 ------ 37, .iOS Lanter v. McEwen, 8 Blackf., 495 800 Lapham v. Noble, 54 Fed. Rep., 108 193 Larkin v. Noonan, 19 Wis., 93----- -- 505 Larkins v. Tartar, 2 Sneed, 681 ---- .-.. 355 Lamed v. Buffington, 3 Mass., 376 785, 828, 875. 889 Larrabee v. Minn. Trib. Co., 36 Minn., 141 - - - - 178, 333 Lathrop v. Adams, 133 Mass., 471 . - - - . - . 373 Lathrop v. Hyde, 25 Wend., 448 324, 775 Lasser v. Rouse, 13 Ired. Eq., 143------ - 283 Law V. Scott, 5 Har. & J., 438 535,816 Lawler v. Earle, 5 Allen, 22 - - - - - - 501 Lawson v. Hicks, 38 Ala, 379 - - 438 Lavton v. Harris, 3 Harr.. 406 .----.-.-34 Lea V. White, 4 Sneed, 111 4.35,456,561 Leaning v. Hewett, 45 111., 33 ------- - 801 Lecroy v. State, 89 Ga., 335 --------i 544 Ledlie v."Wallen, 17 Mont., 150 - - - 156 Lee V. Robertson, 1 Stew., 138 347, 785 Lee V. Woolsey, 19 Johns., 319 - - . - - - 530, 903 Legg V. Dunleavey, 80 Mo.. 558 - - . - 67. 88 Leister v. Smith, 2 Root (Conn.), 24 - - - . - - 885, 895 Lemons v. Wells, 18 Ky., 117 -----... 108 Leonard v. Allen, 11 Cush., 241 - - - - 259, 368, 269, 787, 817, 879, 893 Leonard v. Pope, 27 Mich., 145 ------ 355 Lester v. Thurmond, 51 Ga., 118 - - . . 433 Levy V. McCan, 44 La. Ann., 528 ----- - . J93 Lewis V. Black, 27 Miss., 425 - - - - - - . - 271 617 Lewis V. Chapman, 16 N. Y., 369 64, 325, 389, 476, 477, 494, 539, 770, 847! 878 Lewis V. Fenn, Anth., 75 -------... 33 Lewis V. Few, 5 Johns., 1 81, 230, 533, 535, 537, 578, 800 Lewis V. Hudson, 44 Ga., 568 --•-.--. 153 Lewis V. MoDaniel, 83 Md., 577 ----.... 80.5 Lewis V. Niles, 1 Root (Conn.), 346 -------- §03 Lewis V. Soule, 3 Mich., 514 ---- ..-. goy Lexington Ins. Co. v. Paver, 16 Ohio, 324 - - . . . sil Liffrant v. Liffrant, 52 Ind., 373 ------- jgo 8'0 Like V. McKinstry 41 Barb ,186 - . - - 204, 205, 206, 208! 312 Liles V. Gaster, 43 Ohio St., 631 45O 459 Lincoln v. Christman, 10 Leigh (Va.), 388 - - - - . - ' 825 Linden v. Graham, 1 Duer, 670 - - . - . 2Q4 005 313 013 Lindsey v. Smith, 7 Johns., 359 ' e-i'i' aok' aAa Lindsey v. State. 18 Tex. App., 280 ' ' 469 Lmgenfelterv. Louisville, etc., R. R. Co., 4 S.W. Rep., 185 - - 834 Lin viUe V. Early wine, 4 Blackf., 470 - - - - . . finq cTr Little v. Barlow, 26 Ga., 423 lO-iUQPfiffil? Little V. Hodges, 2 Bosw. (N. Y.), 537 - - . - ^u-^' "«. ^b5,b47 Little V. Young, 3 Met. (Ky.), 558 " .joo ^Xi Lictlejohn V. Greely, 13 Abb. Pr., 41 fnn ^fii Littman v. Ritz, 3 Sandf., 734 - - . - . ' ^] Look V. Bradstreet Co., 33 Fed. Rep., 771 - . - . " ^qr Logan V. Logan, 77 Ind., 558 - {n, 071, oaI Logan V. Steele, 1 Bibb, 593 in7i^lQnQ Loibl V. Breidenbach, 78 Wis.. 49 ; 47 N. W. Rep., 15 - . . ' ' 949 Lonbard v. Lennox, 155 Mass., 70 - - - - ' orI Long v. Brougher, 5 Watts (Penn.), 439 - - - - - 001 Long V. Musgiove, 75 Ala., 158 - - . - ' ^^ Long V. Peters, 47 Iowa, 339 - - . . " ' on/. AnA Loomis V. Swick, 3 Wend., 305 ' rT,, fia' ttt Lotto V. Davenport, 50 Minn., 99 ' "'"'' Jgg' ^^^ AMERICAN CASES. Ivii Lorell V. Haughton, 54 N. Y. Sup. Ct., 60 - - - 224, 22.'3 Lowe V. Herald Co., 6 Utah, 175 -'-.... ' gvj Lucas V. Flinn, 35 Iowa, 9 ---.... 8.'")2 Lucas V. Nichols, 7 Jones (N. C), L., 33 S'i2 Ludwig V. Cramer, 53 Wis., 193 - . . . . 339^ 241, 405, 540 Lukehart v. Byerly, 53 Penn. St., 418 .... - 101, 025 Lumpkins v. Justice, 1 Ind., 557 ....... 534 Luthan v. Berry, 1 Port. (Ala.), 110 .800 Luther v. Skeen, 8 Jones (N. C.), L., 356 - 825 Lyle V. Clason, 1 Cai., 581 229, 235, 338, 239 Lynch v. Febiger, 39 La. Ann., 386 99, 233 Maclean v. Scripps, 53 Mich., 314 335, 329, 583, 593 Madison v. Baptist Church, 26 How. (N. Y.), 73 20.> Mahoneyv. Bedford, 183 Mass., 393 - ... 864,881,893 Mains v. Whiting, 87 Mich., 173; 49 N. W. Rep., 559 - 168, 176, 183, 184 Mallory v. Pioneer Press Co., 34 Minn., 521 - 140, 350, 395, 591, 864. 865 Malloy V. Bennett, 15 Fed. Rep., 371 634, 913 Malone v. Stillwell, 15 Abb. Pr., 431 - 641 Mapes V. Weeks, 4 Wend., 6.59 355, 803, 883 Marble v. Chapin, 133 Mass., 355 231 March v. Davison. 9 Paige, 580 ..... . . 190 Marker v. Dunn, 68 Iowa. 730 - - 883, 896 Markham v. Russell, 94 Mass., 573 839, 844 Marks v. Baker, 28 Minn., 163 635, 538, 884 Marsh v. Ellsworth, 36 How. Pr., 333 - . 419, 426, 438, 444, 561, 828 Marshall V. Addison, 4 H. & M, 537 - . - 111 Marshall v. Wing, 50 Me., 63 - - - . . . . 37O Martin v. Stillwell, 13 Johns., 275 - - ... 104, 135 Martin v. Van Schaick, 4 Paige, 479 3S3 Mason v. Paul, 46 111. App., 593 . . ... - 844 Rainbow v. Benson, 71 Iowa, 301 --.... 452 453 475 Raines v. New York Press Co., 92 Hun, 515; 37 N. Y. S., 45 - . ' . ' 864 Ramey v. Thornbury, 7 B. Mon'., 475 - - .... jgg Rammel v. Otis, 60 Mo., 365---. .... 859 Ramsoar v. Gerry, 1 N. Y. S., 635 - » . . . . . fia Ramsey v. Cheek, 109 N. C, 270 - 177 Randall v. Bait. & O. R. R. Co., 109 U. S., 478 .... o-ta Randall v. Brigham, 74 U. S., 583 41^ Randall v. Evening News, 97 Mich., 136 - . - .69 81 238 360 34<) Randall V. Holsenbake, 3 Hill (S. C), 175 - - . . ' .i^Knl Randell V. Butler, 7 Barb, 260 - ..... ra^ Ranger v. Goodrich, 17 Wis:; 78 " 'q07 Rangier v. Hummell, 37 Penn. St., 130 SOS 7fi7 891 Ranson V. McCurley, 140 III, 626 98 155^49 RansotfB v. Christian, 49 Ga., 491 pon' «»„' tor Rathburnv. Emigh.6Wend:, 407 ^'^^•^"^•J^^ Rea V. Harrington, 58 Vt., 181 " 'ooi Rea V. Wood, 105 Cal, 314; 38 Pac. Rep., 899 - - . -69 81 lO-i W. Reade V. Sweetzer et al., 6 Abb. Pr., 9 - . . . ' ' w' wa Rearick V. Wilcox, 81 III., 77 594 -i^H R77' ssw Rector V. Smith, 11 Iowa, 302 .... ' iTo ^lo' ^«? Redway V. Gray, 31 Vt., 393 ... ' *!''' *5». 5ol Beed V. Delorme, 3 Brev., 76 - . . . "fit Reeves v. Winn, 1 S. E. Rep., 448 - . . I ' " ' 8"2 AMERICAN CASES. Ixiii Eegden v. Wolcott, 6 Gill & J. (Md.), 413 - - - - 898 Regensperger v. Kiefer, 7 Atl. Rep., 724 ------- 845 Regnier v. Cabot, 7 IlL (3 Gilm.), 34 826, 883, 899 Raid V. McLendon, 44 Ga., 136 - 561 Reifey v. Timm, 53 Wis., 63 884 Reitan v. Goebel, 23 N. W. Rep., 291 - - - - - - 333 Remick v. Lang, 47 La. Ann., 914 204 Remington V. Condon, 2 Pick., 310 - - - - 61,515,517.530 Republican Pub. Co. v. Conroy, 5 Colo. App., 362; 38 Pac. Rep.. 423 315, 779 Republican Pub. Co. v. Miner, 3 Colo. App., 568; 20 Pac. Rep., 345 - 129, 823, 845 Republican Pub. Co. v. Mosman, 15 Colo., 399; 24 Pao. Rep., 1051 - 779 Respublica v. Dennie, 4 Yeates (Pa.), 267 940 Reusch V. Roanoke Cold Storage Co., 91 Va., 534 - - - - 391, 780 Reyes v. Middleton, 36 Fla., 99; 17 So. Rep., 937 - - - 346, 246a. 346& Reynolds v. Ross, 43 Ind., 387 119, 266 Reynolds v. Tucker, 6 Ohio St., 516 794 Rhinehart v. Potts, 7 Ired. L., 403 126 Rhodes v. Anderson, 13 Atl. Rep., 823 157, 920 Rhodes v. James, 7 Ala., 728 - - 833 Rhodes v. Naglee, 66 Cal., 677 257, 881 Rice V. Coolidge, 121 Mass., 393 434, 428 Rice V. Simmons, 2 Harr., 417 ---------34 Rice V. Cottrell, 5 R. I., 340 819, 828 Richardson v. Barker, 7 Ind., 567 - 889 Richardson v. Roberts, 23 Ga.. 215 - - - - - 347, 801 Richardson v. State, 66 Md., 205 980 Richardson v. State. 7 Atl. Rep., 43 822 Rickett V. Stanley, 6 Blackf., 169 - - 160 Riddell v. Thayer, 127 Mass., 487 - - - - - - 157, 280 Rider v. Rulison, 74 Hun, 339 - . - - - . 195 Ridley v. Perry, 16 Me., 21 803 Rigbv V. Norwood, 34 Ala., 129 831 RiggS V. Dennison, 3 Johns. Cas., 198 - - - - 71, 178, 183, 184 Riley v. Norton, 65 Iowa, 306 - - 796 Ring V. Wheeler, 7 Cow., 735 . - - - 135, 408, 419, 434, 448, 449 Ritchie v. Stenius, 41 N. W. Rep., 687 - - - - - 341, 816 Ritchie v. Widdemer, 35 Atl. Rep., 825 186 Rixey v. Bayse, 4 Leigh, 330 - 839 Rixey v. Ward, 3 Rand. (Va.), 53 935 Robbins v. Fletcher, 101 Mass., 115 333, 808 Robbins v. Tread way, 2 J. J. Marsh., 540 - - - 50, 64, 581 Roberts v. Champlain, 14 Wend., 120 837 Roberts V. Lamb, 93 Tenn., 343 - - - - . . - 805 Roberts v. Miller, 3 G. Greene, 133 797 Roberts v. Ramsey, 86 Ga., 432 98, 119 Roberts v. Ward, 8 Blackf., 333 773 Robertson v. Bennett, 1 Abb. N. C, 476 137 Robertson v. Lea, 1 Stew., 141 ....---- 137 Robinette v. Ruby, 13 Md., 95 - 394, 395 Robinson v. Druramond, 34 Ala., 174 ------ 383, 347 Robinson v. Keyser, 33 N. H., 323 373 Robinson v. Hatch., 55 How. Pr., 55 656 Robinson v. The Town of Waupaca, 77 Wis., 544 935 Roby V. Murphy, 27 111. App., 894 274, 375 Rock V. MoClarnon, 95 Ind., 415 „„'„„?? Rodebaugh v. Hollingsworth, 6 Ind., 339 616, 617, 814 Rodgers v. Kline, 56 Miss.. 808 88, 298 Roe V. Chitwood, 36 Ark., 210 162 Rolland v. Batchelder, 5 S. E. Rep., 695 J» Romavne v. Duanes, 3 Wash., 246 . - 8^4 Root V. King., 7 Cow., 613 36, 73, 81, 178, 316, 829, 533, 535, 537, 880, 889, 917^ Root V. Loundes, 1 Hill (N. Y.), 518 785 Rosenwald V. Hammastein, 13 Daly, 877 '>''■' IxiV TABLE OF CASES CITED. Eose water v. Hoffman, 24 Neb., 333 ; 38 N. W. Bep., 857 - - 53, 785, 845, 875 Boss V. Fitch, 58 Tex., 148 - - IS:* Boss V. Pines, Wythe, 71 205, 813 Eowand v. De Camp, 96 Penn. St., 493 406 Eoyce v. Maloney, 57 Vt., 335 793 Eude V. Nass, 79 Wis., 331 391 Eundell v. Butler, 7 Barb., 260 135 Eunkle v. Meyers, 3 Yeates, 518 356 Bunge V. Franklin, 10 S. W. Bep., 731 - - - - - 468 Buohs V. Backer, 6 Heisk., 395 419, 545 Bush V. Cavanaugh, 2 Penn. St., 187 184 Eussell V. Anthony, 31 Kan., 450-53 69, 83 Bussell V. Elmore, 48 N. Y., 563 204, 205, 306 Butherford v. Moore, 1 Cranch, C. C, 388 119 Byckman v. Delevan, 35 Wend., 186 70, 358, 359 Byer v. Fireman's J. Co., 11 Daly, 351 49 Safford v. Grau, 1 Johns., 505 - 126 Salisbury v. Union & Ad. Co., 45 Hun, 130 - - - 544, 545, 553, 554 Saltmarsh v. Candia, 51 N. H., 71 367 Salvatelli v. Ghio, 9 Mo. App., 133 644 Sample v. Wyann, Busb. (N. C.) L., 319 834 Samuel v. Bond, Litt. (Ky.) Sel. Gas., 158 660, 793 Samuel v. Mail Co., 75 N. Y., 604 361 Samuels v. Evening Mail Ass'n, 16 N. Y. Sup. Ct., 288 - - - - 846 Sanders v. Bollinson, 2 Strobh., 447 89, 833 Sanderson V. Caldwell, 45 N. Y., 398 .... 169,177,357,770 Sanderson v. Hubbard, 14 Vt., 463 616 Sandford v. Bennett, 34 N. Y., 80 375, -680 Sands v. Bobison, 30 Miss., 704; 51 Am. Dec, 133 - - - 500, 773 Sands v. Joerris, 14 Wis., 663 800 Sanford v. Gaddis, 15 111., 338 808, 809 Sanford v. Bowley, 93 Mich., 119; 53 N. W. Bep., 1119 - - - - 849 Sangton v. Hagerty, 35 Wis., 151 . - - - . - - - 618 Saunders v. Baxter, 6 Heisk., 369 - . - - . . 321, 545, 553 Savoie v. Scanlan, 43 La. Ann., 967 ---... . 93 98 Sawyer v. Eifert, 3 Nott & McC. (S. C), 511 884 Sawyer v. Hopkins, 22 Me., 268"---....- 780 Sayre v. Jewett, 13 Wend., 135 ---..... 618 Sayre v. Sayre, 35 N. J. L. (1 Dutch.), 285 836 Schenck v. Schenck, 30 N. J. L., 208 ...... 268 786 Schilling V. Carson, 27 Md., 175 --..... -'884 Schmidt v. Withwick, 29 Minn., 156 ....... 254 Schmisseur v. Krielich, 92 111., 348 .... 158 678 808 914 Sohrimper v. Heilman, 34 Iowa, 505 - - . . -'.'.' 773 Schuyler v. Busbey, 68 Hun, 474; 83 N. Y. S., 103 388 Schwlck V. Cadraan, 50 Ind., 336 .----. . irjo Scott V. Harber, 18 Cal., 704 793 Scott V. Martsinger, 8 Blaokf.. 454 -..--... 77a Scott V. MoKinnish, 15 Ala,, 663 ..... . 004 Scott V. Peebles, 10 Miss., 546 ^o^ Scott V. Benforth, Wright (Ohio), 55 826 Scovell V. Kingsley, 7 Conn., 384 -.---... S'^S Scripps V. Foster, 39 Mich., 376 ---...' kot vr'u Scripps V. Beilly, 38 Mich., 10 ' 877 87S Seaton v. Codray, Wright (Ohio), 101 112 104 Secor V. Harris, 18 Barb., 425 - - . . . . i7n iso 1S'V iho Seeley v. Blair, Wright (Ohio), 858 81 177 5^^' ^61 7Q8 Self V. Gardner, 15 Mo., 480 «1, 177, 53d, 561, 798 Seller v. Jenkins, 97 Ind., 430 " " °"i Senterv. Carr, 15N. H.. 351 ' ' aol Seslery. Montgomery, 78 Cal., 486; 19 PaaEep., 686 - '. 238 339 341 Servatius v. Pichel, 35 Wis., 293 - . . . "' "**"' f^A. Severance v. Hilton, 33 N. H., 289 774 o"o Sewell V. Catlin, 3 Wend., 291 - - . loo, 191, 193, 193, 281, 868, 4031 533 AMEEICAN CASES. IxV Seymour v. jrerrils, 1 Root (Conn.), 459 - - ... 834 Shadden V. MoEhvei^, 86Tenn.,146 4.55 458 Shank v. Case, 1 Carter, 170 - - ..... '347 Sharp V. Wilhite, 3 Humph., 434 641 Sharpe v. Stephenson, 13 Ired. (N. C.) L., 348 - . - . . 803 Shattuck V. Allen, 4 Gray, 540 - ■ - - . . . 533 Shattuck V. McArthur, 25 Fed. Rep., 133 49, 883 Sheahan v. Collins, 20 111., 325 - . . - - 824 890 Sheckell v. Jackson, 10 Cush., 25 . . - 395, 480, 56l! 591 Sheehen v. Cockley. 43 Iowa, 183 ....... I63 Sheely v. Biggs, 2 a & J., 363 - . - . - - . - 136 Sheffil V. Van Dusen, 13 Gray, 804 228, 331, 238, 240, 241, 246a, 520, 531, 889, 903, 903 Sheik V. Hobson, 64 Iowa. 146 ........ 856 Shelby v. Sun P. Ca, 38 Hun, 474 49 Shelfer v. Gooding, 3 Jones, 175 ....... 419^ 435 Shellenbarger v. Norris, 3 Ind., 285 .... . . 644 Shelley v. Dampman, 1 Lack. Leg. N., 77 ...... 393 Slielton V. Nance, 7 B. Mon., 188 - . - . - 56 Shelton v. Sinanions, 12 Ala., 466 .... . . 773, 898 Shepherd v. Merrill, 18 Johns., 475 - . 550. 651, 657 Sheridan v. Sheridan, 58 Vt., 504 .... '638 Sherwood v. Chase, 11 Wend., 38 . 122 Shields V. Cunningham, 1 Blackf., 86 - - - - . 159 Shilling V. Carson, 27 Md., 175 .... ... 735 Shinlaub v. Ammerman, 7 Ind., 347 - - - - - 126 Ship V. McGraw, 3 Murph., 463 . - . 102, 103, 110 Shipraan v. Burrows, 1 Hall, 399 - . - . . 634, 779, 833 Shipp V. Story, 68 Ga., 47 - - - - - - 887 Shirley v. Keatley, 4 Coldw. (Tenn.), 39 - - - 787. 790, 791 Shoe & Leather Bank V. Thompson, 18 Abb. Pr., 413 - 361 Shook V. McChesney, 4 Teates, 507 - - . 789, 819 Shortly v. Miller, 1 Smith, 395 - . - 347 Shoulty V. Miller, 1 Carter, 544 ... 348, 898 •Shroyerv. Miller, 3 W.Va., 158 ... - 643,824 Shultz V. Chambers, 8 Watts, 800 - - - 635 ShurtlefE v. Parker, 130 Mass., 293 - - - 344, 857, 403, 536 Shurtleff v. Stevens, 51 Vt., 501 - - - - 534, 535, 536, 583, 583 Shute V. Barrett, 35 Mass., 81 - - - - - 918 Sibley v. Marsh, 24 Masa, 38 355, 793 Sillars v. Collier, 151 Mass., 50 69, 81, 301 Simmons v. Holster, 13 Minn.. 349 ..... ..51 Simonson v. Herald Co., 61 Wis., 626 - - ... 637, 640 . Simpson v. Vaughan, 8 Strobh., 33 - - - - 643 Singer v. Bender, 64 Wis., 169 - 171, 631 Singleton v. Railroad Co., 41 Mo., 465 - - 831 Skinner v. Grant, 13 Vt., 456 - - - - - - 3.55, 803 Skinner v. Powers, 1 Wend., 431 •■ - - - - 797, 800 Sloan V. Petrie, 15 lU., 425 - 348, 661 Slocumb V. Kuvkendall, 1 Scam. (111.), 87 - - - - 807 Smalley v. Anderson, 2 T. B. Mon., 56 - - 159 Smalley v. Stark, 9 Ind., 386 - 820 Smart v. Blanchard, 42 N. H., 137 - - - - 259, 395, 591 . Smith V. Ashley, 53 Mass., 367 ... . . 239, 728 Smith V. Buckecker, 4 Eawle (Penn.), 285 803 Smith y. GafiFord, 83 Ala., 168 280, 281, 624, 646, 831 Smith V. Hamilton, 10 Rich. (S. C), 44 - . ... 641 Smith V. Higgins, 16 Gray, 251 - - - 409, 476, 477, 506, 536, 535 Smith V. Hollister, 32 Vt., 695 - - - - - - 643 Smith V. Howard, 28 Iowa, 51 - - - - 419. 450, 456 Smith V. Kerr, 1 Edm. (N. Y.) Sel. Cas., 190 - - 505, 506 Smith V. Lovelace, 1 Duv. (Ky.), 215 ... - 333, 824 Smith V. Miles, 15 Vt, 345 - - ... - - 269,313 Smith V. Minor, 1 N. J. L, 16 - ' 100 Smith V. Shumway, 2 Tyler (Vt.), 74 898 2xvi TABLE OF CASES CITED. Smith V. Smith, 8 Ired. (N. C.) L., 29 . - - - o*| Smith V. Smith, 39 Eenn. St., 441 - - - - " . . 519 Smith V. Smith, 73 Mich., 445; 41 N. W. Rep., 499 - - ^|" Smith V. Smith, 41 N. W. Rep., 409 - - ■ - ^^' ^^' ^^' ^tfi lOi W8 Smith V. Smith, 2 Sneed, 473 ' . 366 Smith V. St. Joseph, 55 Mo., 456 - - - ■ gg ^^jg -^q^ Smith V. Stewart, 5 Penn. St., 373 ; ^ " „ " ' ' ' 770' 040 Smith V. Sun Printing Ass'n, 55 Fed. Rep., 240 - - - . ' 848 Smith V. Times Co., 4 Pa. dst. R., 399 - - - - " „ „ „„_ Smithv.l^ibuneCo 4Biss 477 ^ _ '^'' ^!'' t%:lf,Z Smith V. Whyman, 16 Me., 13 - - - - 2,55 Smith V. Wright, 55 Ga., 318 I 331 773 Smith V. Youmans, 3 Hill, 85 • ' ' ' ' ona q'nq filfi 76?' 769 Sneli V. Snow, 54 Mass., 378 308, 309, 616, 767, 7b9 Snider v. Fulton, 34 Md., 138 ■ ^°" Snow V. Tappan, 59 Mass., 104 „.„ Snow V. Witcher, 9 Ired. (N. C.) L., 346 - - - - - " " °^" Snyder V. Andrews, 6 Barb., 43 - - - - 239,334,235,790.794 Solveson v. Peterson, 64 Wis., 198 - - . . - 50, od,J» Sorenson v. Dalaban, 43 N. Y. S., 654 »o{ Southern Express Co. v. Fitzner, 59 Miss., 581 - - " '^o* Southwiok V. Stevens, 10 Johns., 443 - . - - 230,584,9^0 S. P. B. V. L, 22 Wis., 372 - '_ °5* Spaids V. Barrett, 57 111., 289 - - *24, 4^, |70 Spaits V. Poundstone, 87 Ind., 533 - - - - 335,338,240,241,246a Sparrow V. May nard, 8 Jones (N. C.) L., 195 - - - - "„ , " °!° Speiring v. Andrae, 45 Wis., 330 - . - - 169, 177, 178 Spencer v. McMasters, 16 111., 405 °^l Sperry v. Wilcox, 1 Met. (Mass.), 267 7»- Spotorno v. Fourichon, 4 S. Rep., 71 - - - - " " .VS Spooney v. Keeler, 51 N. Y., 527 - 419 Springstein V. Field, Anth. (N. Y.), 185 - - - - ^^^' °°° Sproul V. PiUsbury, 72 Me., SO - - - - - " 643 SpruiU V. Cooper, 16 Ala., 791 796,797,800 Stackpoole v. Hennan, 6 Mart. (N. C), 481 - ... 43.5 Stafford v. Green, 80 Johns., 505 - - - - - - 133, 125 Stafford v. Morning Journal, 68 Hun, 467 - • - 910 Stallings v. Whittaker, 55 Ark., 494 - 98 Stallings v. Newman, 36 Ala., 800 - • - - - - 644 Stanoel v. Pryor, 35 Ga., 40 - - - - . - - 616 Stanfield v. Boyer, 6 Harr. & J., 348 159 Stanley v. Brit, M. & Y, 273 - - .... - 616 Stanley v. Webb, 4 Sandf. (N. Y.), 31 - - 307, 554, 545, 5.50, 57? Stanwood V. Whitmore, 63Me., 309- - - - - 875,881 Starr v. Harrington, 1 Carter, 515 347, 659 State V. Appling, 35 Mo., 315 941 State V. Armstrong, 106 Mo., 395; 16 S. W. Rep., 604 - - 74, 168 State V. Atchison et al., 3 Lea, 729 - - .... 363 State V. Avery, 7 Conn., 266 937, 942, 971 State V. Baloh, 31 Kan,, 465 406, 539 State V. Barnes, 32 Me., 530 980 State V. Bienvenu, 36 La. Ann., 378 403 State V. Boogher, 3 Mo. App., 443 938 State V. Brady, 44 Kan., 435; 34 Pac. Rep., 948 • - 317, 818, 967, 970 State V. Brown, 1 WiL (Vt), 619 - - 943 State V. Brownlaw, 7 Humph. (Tenn.), 63 977 State V. Brunham, 9 N. H., 34 937 State V. Burroughs, 2 Halst., 486 98 State V. Chandler, 2 Harr., 553 - - - - - - 944, 960, 963 State V. Clyne, 53 Kan., 8 169, 317, 318 State V. Corbett, 13 R L, 388 - - - 981 State V. De Long, 88 Ind., 312 ... ... 71 State V. Dorris, 93 N. C, 764 - - 980 State V. Dowd, 39 Kan., 413 977, 979 State V. Edens, 95 N. C, 693 937 AMERICAN CASES. Ixvii State V. Ellar, 1 Dev., 267 - - - - - nc,l State V. Fraley, 4 MoCord, 317 037 State V. Fitzgerald, 20 Ma App., 408 - - . . . (jug State V. Graham. 3 Sneed (Tenn.), 134 - - . . 904 State V. Great W.. etc., Co., 30 Me., 41 - 303 State V. Hall, 5 Harr., 493 - 11 C, State V. Henderson, 1 Rich. (S. C), 179 979 State V. HoUon, 12 Lea, 483 . . 57 State V. Jeandell, 5 Harr., 475 34, 967 State V. Jones, 9 Ired., 38 ---------- 961 State V. Kirby, 1 Murph. (Tenn.), 254 961 State V. Kountz, 13 Ma App., 511 372 State V. Lonsdale, 48 Wis., 348 401, 403, 494 State V. Lyon, 88 N. C, 568 71 State V. Mason, 26 Or., 278 78, 175, 380, 970 State V. Mayberry, 33 Kan., 441 577 State V. McDaniel, 84 N. C. 803 - 988 State V. Mclntire, 30 S. E. Rep., 721; 115 N. C, 769 ... - 235 State V. Mott, 45 N. J. L., 494 - - 980 State V. Pepper, 68 N. C, 359 - - 968 State V. Potter, Dudley, 303 - - - 335 State V. Rice, 8 N. W. Rep., 343 - 155, 163 State V. Biggs. 23 Vt, 332 - - - - - - - - 981 State V. Schmidt, 9 AtL Rep., 774 537, 967, 978, 980 St-ate V. Shoemaker, 8 S. E. Rep., 333 - - - - - - 338 State V. Smiley, 37 Ohio St., 30 271, 967 State V. Smith, 78 Me., 260 - - 344 State V. Spear, 13 R L, 334 967, 978 State V. Steele, 3 Heisk. (Tenn.), 135 - - - - - 963, 964 State V. Syphrett, 2 S. K Rep., 634 - - 329 State V. Taylor, 3 Sneed, 663 - 970 State V. Townsend, 86 N. a, 676 879 State V. Verry, 13 Paa Rep., 838 - - - ... 817 State V. White. 9 Ired. (N. C.) L.. 418 979 State V. Witters, 27 La. Ann., 246 - - - - 979 Staub V. Van Benthuysen, 36 La. Ann., 467 - 343 Stearns v. Cox, 17 Ohio, 590 - - 773 Steele v. Phillips, 10 Humph., 461 661 Steele v. Southwick, 9 Johns., 314 - - - - ' 35, 51, 55, 254, 260 Stees V. Kemble, 37 Penn. St.. 113 105, 130, 353, 791 Steever v. Beehler, 1 Miles (Penn.), 146 - - - 907 Steinman v. Clark, 10 Abb. Pr., 133 659 Steinraan v. Mc Williams. 6 Penn. St., 170 - - - - - 799 Stein metz v. Wingate, 42 Ind., 574 - - - - - - 830 Stephens v. Brook, 2 Bush (Ky.), 137 - - .... 831 Sterling v. Adams, 3 Day (Conn.), 411 - - .... 661 Sterling v. Ingeuheimer, 69 Iowa, 210 - . . - - . 89 Stern v. Lowentbal, 19 Paa Rep., 579 807, 808 Sternan v. Marks, 58 Ala., 608 - - - ... - 301 Sterne v. Katz, 38 Wis., 186 88 Stevens v. Handly, Wright (Ohio), 121 - 644 Stevens v. Hartwell, 11 Met, 543 - - - 244, 355, 783, 851, 857, 859, 861 Stewart v. Brooklyn, eta, R. R. Ca, 90 N. Y., 588 - - - - 376 Stewart v. Hall, 83 Ky., 375 - 458 Stewartv. Howe, 17nL,71 - - - - . 103,113,369,870 Stewart v. Minn. Trib. Ca, 41 N. W. Rep., 457 63 Stewart v. Swift, 76 Ga., 280 - 50, 53, 640 Stewart v. Wilson, 23 Minn., 449 604 Stichtd V. State, 25 Tex. App., 430; 8 8. W. Rep., 477 - 376, 808, 977 Stiebeling v. Lockhaus, 31 Hun, 457 - - - - 304 Stieber v. Wensill, 99 Ma, 513 160 Still well V. Barter, 19 Wend., 487 - 50, 797 St. Martin v. Desnoyer, 1 Minn., 156 11? Stock V. Chetwood, 5 Kan., 141 20o Stoddard v. Trucks, 31 Ark., 736 387 Ixviii TABLE OF CASES CITED. Stokes V. Arey, 8 Johns., 46 ------- ~ ' vi-^ Stokes V. Stokes, 73 Hun, 373 " '* Stoll V. Hande, 34 Minn., 193 ^g. °l^ IZll-.^^fi'^^^'M : : : : : "113.^01^3,8.8; 829 iCrvviX'slBrief.' : : : -' "875,88f:883;l85:i94:895 Stout V. "Wood, 1 Blackf., 71 so 707 s7b Stow V. Converse, 3 Conn., 335 i^«'7qq's-q Stowellv. Beagle, 57 111.. 97 ^M oil' fmnm Strader V. Snyder, 67 111., 404 ^^^' ^''^' ifis' 97? Strauss V. Meyer, 48 III, 385 ^'%l Streety v. Wood, 15 Barb., 105 " *'" Stroebel v. Whitney, 31 Minn., 384 °l' l^^ Strode v. Clement, 90 Va., 553 ^^i'^' %^^ Struthers v. Peacock, 11 Phil., 387 ^'^ Stacker V. Davis, 8 Blackf., 414 - «« n'o offi Stumes V. Pitchman, 15 N. E. Eep., 757 - - - - 86,119,91b Sturgenegger v. Taylor, 3 Brev. (S. C), 481 - - - - " »»» Sugart V. Carter, 1 Dev. & B. L.. 8 - - - - - - »_ ' iZ Sailings V. Shakespeare, 9 N. W. Rep., 451 - - - ^^'l^i'tfi Sullivan v. O'Leary, 146 Mass., 332 »1^. =1* Sullivan V. Sullivan, 48 111. App., 435 3d8 Sullivan V. Wilson, 15 Ind., 846 »?» Suranan V. Brewin, 53 Ind., 140 I'^n i«o ^on Sumner v. Utley, 7 Conn., 258 170, 182, 190 Sutton V. Smith, 13 Mo., 120 ™* Suydam v. Moffat, 1 Sand., 459 ; 469 Swailes v. Butcher, 2 Carter, 84 348, 7«b Swan V. Rarer, 3 Blackf., 298 . . - bbO Swan v. Tappan, 5 Cush., 104 - - - 205, 217, 252, 395, 400, .500, 861, 871 Swartz V. Thomas, 2 Wash. (Va.), 167 - - - - - 820 Swartzell v. Day, 3 Kan., 244 660 Sweeney V. Baker, 13 W. Va., 158 - - 81,406,533,535,537,539,540,573 Swift V. Dickerman, 31 Conn., 285 634, 841, 864 Sword V. Martin, 23 111. App., 304 806 Symonds v. Carter, 33 N. H., 458 - 160, 774 Taft V. Howard, 1 D. Chip. (Vt), 275 634 Tait V. Culbertson, 57 Barb., 9 388 Talmadge v. Baker, 23 Wis.. 635 798 Tarlton v. Lagaide, 46 La. Ann., 1868 - - - - 74, 1C8, 1C9, 176, 189 Tavr V. Rasee, 9 Mich., 353 - - 326 Taylor v. Carr, 3 Up. Can., Q. B., 306 178 Taylor v. Casey, Minor (Ala.), 258 129, 610 Taylor v. Church, 1 E. D. Smith, 379 71, 75, 403, 561 Taylor v. Hearst, 107 Cal., 262 864, 908 Taylor v. Kneeland,! Doug., 67 98,103.775,866 Taylor v. Robinson, 29 Me., 323 790, 791 Teagle v. Deboy, 8 Blackf., 134 - 793 Teague v. Williams, 7 Ala., 844 - 823 Tebbeth v. Coding, 9 Gray, 254 616 Templeton v. Graves, 59 Wis., 95 - - - - 837, 843, 845, 846, 916 Tenney v. Clement, 10 N. H., 53 - - - - - 133, 644 Territory v. Whitcorab, 1 Mont T., 359 153 Terry v. Bright, 4 Md., 430 - - - - ... - 648 Terry v. Fellows, 21 La. Ann., 375 543 Terwiliger v. Wands, 17 N. Y., 54 - - 244, 779, 782, 827, 841, 858, 864 Tesoa V. Maddox, 11 La. Ann., 206 549,550 Thogmorton v. Davis, 4 Blackf., 174 - - - ... 773 Thomas v. Blasdale, 18 N. E. Rep., 214 - - - - 86, 139, 254, 608 Thomas v. Bowen, 45 Pac. Rep., 758 ... ... 32O Thomas v. Croswell, 7 Johns., 264 . - 82, 557, 580, 581, G18, 633, 639, 630 Thomas v. Dole, 18 N. E. Rep., 314 610 AMERICAN OASES. Ixix Thomas v. Dunaway, 30 111., 873 ---..-.. 343 Thomas v. Fischer, 71 111., 576 - - - - - - . - 809 906 Thomas v. Ramsey, 6 Johns., 36----- --' 888 Thompkins v. Wisener, 1 Sneed (Tenn.), 458 - - - 259 820 Thompson v. Berkly, 27 Penn. St., 263 '641 Thompson v. Bowers, 1 Dougl. (Mich.), 831 - - - - - - 793 Thompson v. Grimes, 5 Ind., 385 - - - - - 090, 291 Thompson v. Powning, 15 Nev., 195 - . . 335 333' 579 Thompson v. White, 70 Cal., 135 - ... - - 312 Thorn v. Blanchard, 5 Johns., 508 - . . . 491, 407, 788 Thorn v. Moser, 1 Denio, 488 243, 400, 495, 496 Thrall V. Smiley, 9 Cal., 529 - 659 Tibbs V. Brown, 3 Grant's Cas., 39 - 366, 833 Tiddy v. Harris, 8 S. E. Rep., 327 - - - - . . 833 Tierney v. Duffy, 59 Miss., 364 ------... 748 Tillmore v. Willis, 61 Ga., 433 51 Tillotson V. Chatham, 3 Johns., 56 - - - - - - 653. 930 Tillson V. Robbins, 68 Me., 395 ----- - - 83, 373 Tilson V. Clarke, 45 Barb., 178 ------ . ' 656 Tilton V. Beecher, 59 N. Y., 176 ---... 745, 747 Timberlake v. Gin. Gazette Co., 10 Ohio St., 548 - - - . 549! 550 Titus V. Follet, 2 Hill (N. Y.), 318 - ..... 643 Tobias v. Harland, 4 Wend., 537 - - - . 204, 305, 306, 220, 850, 853 Todd V. Raugh, 10 S. & R., 18 98, 103 Tolleson v. Posey, 32 Ga., 373 . . 773 Tollett V. Jewett, 1 Am. Law Reg., 600 791 Tonini v. Cevasco, 114 Cal., 266; 46 Pac. Rep., 103 - - - - 43 Torrey v. Field, 10 Vt, 353 - - ... - 434 Toye V. McMahone, 21 La. Ann., 308 86 Traoey v. Commonwealth, 10 Ky. L. Rep., 611 - - - - 978, 979 Treat V. Browning, 4 Conn., 408 .... 356,791,838,887,893 Trenton Ins. Co. v. Perrine, 3 Zab., 403 - - - - 361 Treska v. Maddox, 11 La. Ann., 306 - - - - - - 553 Trimble v. Anderson, 79 Ala., 514 - 63, 634 Trimble v. Foster, 87 Mo., 49 883 Trimmer v. Hisoock, 27 Hun, 364 - - 170 True V. Plumley, 36 Ma, 466 338, 770, 850 Trumbull v. Gibbons, 3 City Hall Recorder, 97 339 Trussell v. Scarlett, 18 Fed. Rep., 214 402 Tryon v. Evening News, 89 Mich., 636 71 Tuil V. David, 37 Ind., 377 836 Turner v. Foxall, 2 Cranch, C. Ct, 334 891 Turner v. Hearst (Cal., 1897), 47 Pac. Rep., 139 908 Turrill v. Delaway, 17 Wend., 436 560, 581 Turton v. N. Y. Recorder, 144 N. Y., 144; 38 N. E. Rep., 1009 340, 341, 315, 908 Tuttle V. Bishop, 30 Conn., 80 625 Twombly v. Monroe, 136 Mass., 464 608 Updegraph v. Commonwealth, 11 S. & R, 394 - - - 944, 945, 963 Updegrove v. Zimmerman, 13 Penn. St., 619 - - - - 347, 791 Upham V. Dickinson, 50 111., 97 141, 917 Upton V. Hume, 34 Or., 420 98, 131, 177, 564. 577 Urban v. Helmick, 15 Wash., 155; 45 Pac. Rep., 747 - - 193, 393, 849 United States v. Hudson, 7 Cranch, 33 940 UnitedStatesv. Tilden, lOBen. (U. S. D. C), 549 746 Usher V. Severance, 20 Me., 9 - - - -395,545,549,550,560,591 Vallery v. State. 43 Neb., 133; 60 N. W. Rep., 347 477 Van Aernam v. Blusteen, 102 N. Y, 355 915 Van Aernam v. McCune, 32 Hun, 316 - 364 Van Aiken v. Caler, 48 Barb., 58 119, 305 Van Alen V. Bliven, 4 Denio (N. Y.), 455 818 Van Auken v. Westfall, 14 Johns., 233 100, 103, 109 IXX TABLE OF CASES CITED. Van Bensootten v. Yaple, 13 How. Pr., 97 ----- " ^?^ Van Cleef v. Lawrence, 3 City Hall Rec., 41 - - - - " 'tri Vanderlip v. Roe, 23 Penn. St., 83 loj- "'!:'■ ^T°' f^ Vanderzee v. McGregor, 12 Wend., 546 - - - - 33o, 40o, M, 7H8 Van Epps V. Jones, 50 Ga., 238 ., " „ ,1. ' '««* Van Ingen v. Star Co., 1 App. Div. (N. T.), 429; 37 N. Y. S 114 - - 864 Van Ness V. Hamilton, 19 Johns., 367 - - - -98,103,552,656,659 Van Rensselaer v. Dole, 1 Johns. Cas., 379 - - ^«« Van Slyke v. Carpenter, 7 Wis., 183 - - - - - - " " ^3.) Van Tassell V. Capron, 1 Den., 250 - - - 171,173,178,179,397,855 Van Tuyl V. Riner, S Brad., 556 ^oo foHoffiA? Vaughan v. Haven.s, 8 Johns., 109 „„ 133, 136, 621, 661 Van Vechten v. Hopkins, 5 Johns., 211 - - 339, 357, 308, 310, 619, 632, 767 Van Wyok v. Aspenwall, 17 N. Y., 190 - - - 389, 403, 409, 479, 505 Van Wyoke v. Guthrie, 4 Duer, 268 . . - - 403, 409 Verner v. Verner, 64 Miss., 321 - - .... 4a8, 459 Vick V. Whitfield, 2 Ohio, 232 834 Vickers t. Stoneman, 73 Mich., 419; 41 N. W. Rep., 495 85, 331, 350, 633 Viele V. Gray, 10 Abb. Pr., 1 - - - - - - 535, 647 Vifquain V. Finch, 15 Neb., 305 811,813 Vila V. AVeston, 33 Conn., 42 - - - - - 748 Vinas v. Merchants', etc., Ins. Co., 37 La. Ann., 307 .... 361 Vinas v. Mutual Ins. Co., 33 La. Ann., 1365 470 Wadsworth v. Treat, 43 Mo.. 163 - - - t - - - - 804 Wagaman v. Byers, 17 Md., 183 64, 390 Wagner v. Holboumner, 7 Gill (Md.), 396 -,-.-. 335, 898 Wagstaffi V. Ashton, 1 Harr. (Del.), 503 790, 791 Wakefield v; Smithwick, 4 Jones (N. C), L., 337 - ... 828 Wakely v. Bostwick, 49 Mich., 374 204, 205, 210, 212 Walker v. Flynn, 130 Mass., 151 - 907 Walker v. Hawley, 56 Conn., 599 61, 63 Walker v. Meitze, 3 Rich. (S. C), 570 781 Walker v. Tribune Co., 29 Fed. Rep., 827 61, 64, 623 Walker v. Wiokens, 49 Kan., 42 - 317, 318 Walker v. Winn, 8 Mass., 348 38, 50 Wallace v. Bazet, 34 La. Ann., 131 - 543, 583 Wallace v. Bennett, 1 Abb. N. Cas., 478 - 64 Wall V. Haskins, 5 Iredell, 177 ... 110 Wallace v. Rodgers, 156 Pa. St., 395 849 Wallis V. Mease. 3 Binney. 546 - . 117 Wallis V. N. O. Times, 39 La. Ann., 66 470 Wallis V. Walker, 11 S. W. Rep., 123 54, 60S, 607 Walrath v. Nellis, 17 How. Pr., 73 124 616 Walton V. Singleton, 7 S. & R., 449 88, 155, 161 Wanderly v. Noakes, 3 Blaokf., 589 - 800 Ward V. Clark, 3 Johns., 10 183 Ware v. Clowney, 34 Ala., 707 ----..... 863 Ware v Cartledge, 24 Ala., 633 - - . . .'- . -647 Wartaouth v. Cranaer, 3 Wend., 394 ..... . 637 Warner v. Clark, 45 La. Ann., 863 238 Warner v. Lockerby, 31 Minn., 431 875, 886, 904, 907 Warner v. Paine, 2 Sandf., 195 ... . . 437 444 479 Warnocv. Circle, 29 G-rat, 197 41, 150, IGs! lOs) 849 Warnock v. Mitchell, 43 Fed. Rep., 428 - . - . 328 Wartensleben v. Haithcock, 1 So. Rep., 38 - - - - - 833 Washburn v. Cooke, 3 Denio, 110 389 qq.q am 40,=; Watcher V. Quenzer, 39 N. Y., 547 - . . - - -296 797 Waters v. Jones, 3 Port., 442 - - . . . .1 qo' 004 Waters V. Smoot, Hired. (N. C.) L., 315 - . . . . -804 Watson V. Churchill, 5 Day (Conn.), 356 - - - - - - 898 Watson V. Hampton, 2 Bibb, 219 - - - - - 126 Watson V. Harmon, 85 Mo., 443 ----..II 935 Watson V. Morse, 56 Mass., 133 --.... 395 <-^'^^ 774 ggg AMEKICAN OASES. Ixxi Watson V. McCarty, 2 Kelly, 57 joa Watson V. Nicholas, 6 Humph., 174 271 970 Watson V. Trask, 6 Ohio, 531 '073 Watters v. Gilbert, 2 Cush., 27 79a Watts V. Greenlee, 5 Dev. L., 115 .... . ' 373 glfi Waugh V. Waugh. 47 Ind.. 580 '156 Wavle V. Wavle, 9 Hun, 125 - 935 Way V. Railroad Co., 35 Iowa, 585 ... . - . 831 Wazelka v. Hittrick, 93 N. C, 10 884 Weaver v. Hendrick, 80 Mo., 503 . . . . 326 770 Weber v. Butler, 81 Hun, 244 - ' 315 Webster V. Sharpe, 116 N. C, 466 ... . . 98111 Weed V. Bibbins, 32 Barb., 315 - sse' 635 Weiman v. Mabie, 45 Mich., 484 ... . . 406, 48l! 503 Weir V. Hoss, 6 Ala., 681 338' 634* 640 Weirbach v. Trone, 2 Watts & S., 408 - . . . - ' 89 Welch V. Eakle, 7 J. J. Marsh., 434 . 374 Weld V. Foster, 11 Barb., 203 - 83 Wellman v. Sun Print Pub. Co., 66 Hun, 331 131 Werner v. Asoher, 86 Wis., 349; 56 N. W. Rep., 869 - . . 391 West V. Hanrahan, 28 Minn., 385 . - - .88 West V. Walker, 2 Swan (Tenn.). 32 . - .... 898 Wetherbee v. Marsh, 20 N. H., 561 . - - • . - 884, 896 Wbeaton v. Beecher, 66 Mich., 307; 33 N. W. Rep., 503 - 81, 533, 535 •Wheeler V. Robb, 1 Blackf., 330 . . - - - 826 Wheeler v. Shields. 2 Scam. (111.), 348 351, 353 Whitaker v. Carter, 4 Ired. L., 461 343, 803 Whitcomb v. Barry, 37 Vt., 148 366 White V. Carroll, 42 N. Y., 161 419,449,450,456 White V. Delevan, 17 Wend., 49 - - ... 70, 259 White V. Nichols, 3 How. (U. S.), 266 - - 35, 37, 391, 394, 419, 495, 539 White V. Sayward, 33 Me., 336 - - - 359, 308, 767, 769 Whithead v. Tipson, 119 Masa, 484 - 346, 346a Whiting V. Smith, 13 Pick., 364 . - - - - 804, 836, 918 Whitney v. Allen, 63 III., 473 394 Whitney v. Hitchcock, 4 Denio, 461 365 Whitnev v. Janesville, 5 Biss., 330 43, 67 Whitney v. Milwaukee, 65 Wis., 409 .935 Whitsel V. Lennen, 13 Ind., 535 644 Whittam v. Young, 1 Blackf., 299 - - . - - - . 644 Whittemore v. Weiss, 33 Mich., 348 - - - - 335, 657, 797, 887 Wichter v. Jones, 17 N. Y. S., 491 - - 900 Widrig V. Oyer, 13 Johns., 124 38, 103, 104 Wilber v. Ostrom, 1 Abb. Pr. (N. Y.), N. S„ 275 . ... 837 Wilborn v. Odell, 39 111., 456 - - - .... 805, 809 Wilcox V. Moore (Minn., 1897), 71 N. W. Rep., 917 - 593 Wilcox V. Webb, 1 Blackf., 368 - . 648 Wiley V. Campbell. 5 Mon. (Ky.), 396 . . . . - . 353 Wilkin V. Thorp, 55 Iowa, 609 251 Williams v. Cairnii, 4 Humph., 9--.. .--78 Williams v. Cawley, 18 Ala., 308 - - ... 293, 880 Williams v. Cora., 91 Penn. St., 493 - 745. 748 Williams v. Davenport, 43 Minn., 393; 44 N. W. Rep., 311 169, 176, 183, 193 Williams v. Godkin, 5 Dalv, 499 - - - 51 Williams v. Gordon, 11 Bush (Ky.), 693 - - . - - - 383 Williams v. Greenwade, 3 Dana (Ky.), 432 - - 786, 885, 894, 895 Williams v. Haig, 3 Rich. (S. C), 363 ... 834 Williams v. Harrison, 3 Mo., 411 78r) Williams V. Hill, 19 Wend., 305 781,857,858 Williams V. Holdridge, 22 Barb., 396 198,199,200 Williams v. Miner, 18 Conn., 464 306, 773 Williams v. Spears, 11 Ala., 138 . . 647 Willover v. Hill, 72 N. Y., 36 - - - - - - - 887 Wilson V. Apple, 3 Ohio, 370 898 Ixxii TABLE OF OASES OITED. Wilson V. Beigler. 4 Iowa, 427 ?*f Wilson V. Cattman. 66 Md., 190 - - - -,%„„' " nm iii, Wilson V. Chicago Tribune, Merrill's Newspaper Libel, 190 - - O'^^-^ooi Wilson V. Cloud, a Spears (S. C), 1 - - - " " ' om ooo Wilson V. Dubois, 35 Minn., 471 ^i°' tT^ Wilson V. Fitch, 41 Cal., 363 „„o ;„« o.i S-i' noi Wilson V. Goit, 17 N. Y., 445 - - - - 368, 782, 841, 8o8, 932 Wilson V. McCrory, 86 Ind., 170 - - - - ■ f 53 Wilson V. Noonan, 35 Wis., 331 - ... - 5do, 846 Wilson V. Bobbins, Wright (Ohio), 40 159 Wilson V. Sullivan, 7 S. E. Rep., 274 - "'",:. ^"^ Wilson V. Tatum, 8 Jones,- 300 11-M34 Wilson V. Watrous, 5 Yerg. (Tenn.), 311 - - - - 'So, 804 Wimbish v. Hamilton, 47 La. Ann., 246; 16 So. Rep., 856 - - 320 Wimer V. Allbaugh, 78 Iowa, 79 - - - - - - 104, 113 Winchel v. Strong, 17 111., 597 - - - - - . - - 885 Wing V. Wing, 66 Me., 62 ... 8i) Winter v. Donovan, 8 Gill (Md.), 370 - - - - - - 786 Winter v. Sumvault, 3 Har. & J., 38 100 Wiseman v. State, 14 Tex. App., 74 - - - - - 980 Witchei- v. Jones, 17 N. Y. S., 491 228 Witcher v. Richmond, 8 Humph. (Tenn.), 473 ... 661, 819 Wolbrecht v. Bauragartner, 26 IlL, 291 - - - - - 644, 674 Wolcott V. Hall, 6 Mass., 514 - - - - - - 826 Woldrop V. Thatcher, 17 Penn. St., 340 794 Wolf V. Scofield, 38 Ind., 175 745 Wolfe V. Burke, 56 N. Y., 115 246, 246a Wonson v. Saywood, 31 Mass., 402 - - 265 Wood v. Boyle, 177 Penn. St., 620; 35 Atl. Rep., 853 - - - 81 Wood V. Clark, 3 Johns., 10 - . - - - 122 Wood V. Gilchrist, 1 Code Rep., 117 246, 608 Wood V. Helbish, 23 Mo. App., 380 846 Wood V. Southwick, 97 Mass., 354 124, 125, 127, 255 Woodbeck v. Keller, 6 Cow., 118 796, 800 Woodbury v. Thompson, 2 N. H., 194 190, 861 Woodling V. Knickerbocker, 31 Minn., 238 - - - - 56, 372, 373 Woodruff V. Richardson, 20 Conn., 238 801 Woods V. Wiraan, 47 Hun, 362 62, 228 Woolcott V. Goodrich, 5 Cow., 714 149 Worcester V. Proprietors Canal Bridge Co., 16 Pick., 541 - . - 9U Works V. Stephens, 76 Ind., 181 ........ 866 World Pub. Co. v. Mullen, 43 Neb., 126 98 Worthington v. Haughton, 100 Mass., 481 - 56 Wright V. Lindsay, 20 Ala., 428 - • . . ... 661 Wright V. Lothrop, 149 Mass., 385 ... - . 505 515, 524 Wright v. Paige, 36 Barb., 438 . . 3O8, 822 Wright v. Sohroeder, 3 Curt, 548 -.--.-..823 Wright v. Wilcox, 19 Wend., 343; 32 Am. Dec, 507 ... . 376 Wrigley v. Snyder, 45 Ind., 541 - . . . . . 643 Wuensch v. Morning Journal, 4 App. Div. (N. Y.), 110 - . . . 882 Wyant v. Smith, 5 Blackf., 293 . . 101 Wyatt V. Buell, 47 Cal., 624 419 446 450 Wynne v. tarsons, 57 Conn., 73 -......' 301' 304 Yeates et ux. v. Reed et ux., 4 Blackf., 468 .... -^--i 701 brq York v. Johnson, 116 Mass., 482 ' ' 495 York v. Pease, 68 Mass., 383 . . 323, 338, 409, 445, 446, 526 539 530 773 Youmans V. Paine, 86 Hun, 479; 35 N. Y. S., 50 . - . ' . ' 320 Young V. Bennett, 5 111. (4 Scam.), 43 - .... go^ 893 Young V. Clegg, 93 Ind., 371 - ook oSr' oao Young V. Cook, 10 N. E. Rep., 719 ' i2' ank Young V. De Mott, 1 Barb. (N. Y.), 30 - - . ' %ar Young V. Gilbert, 93 IlL, 595 '292 ENGLISH CASES. Ixxiii Young V. Kuhn, 9 8. W. Rep., 860 53 86 831 833 Young V. Miller, 3 Hill, 31 '- ' 85! 108 Young V. Richardson, 4 111. App., 364 -......' ii05 Young V. Slimons, Wright (Ohio), 124 885, 894, 895 Zelif V. Jennings, 64 Tex., 458 - - 85, 163, 265 Zier V. Hoflin, 33 Minn., 60 ■--..... 65, 230 Zimmerman v. McMakin, 22 S. C, 373 ---...-' 809 n. EI^GLISH CASES. Adams v. Coleridge, 1 Times L. R, 84 - - 412, 483, 538, 776, 843 Adams v. Kelly, Ry. & Moo., 157 - - - - 346, 760, 935 Aish V. Gerish, 1 Roll. Abr., 81-------- 263 Alexander v. Jenkins, 1 Q. B., 797 --. ....69 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, 856 Alleu V. Eaton, 1 Roll Abr., 54 191 Alleston V. Moor, Hetl. 167, 180, 185 Allhousen v. Labouchere (C. A.), 3 Q. B. D., 654; 47 L. J., Ch., 819; 48 L. J., Q. B., 34; 27 W. R, 12 744 Allsop and wife v. AUsop, 5 H. & N., 534; 29 L. J., Ex., 315; 6 Jur. (N. S.), 433; 8 W. R, 499; 36 L. T. (O. S.), 290 135, 165, 784, 863, 874 Amann v. Damm, 8 C. B. (N. S.J, 597; 29 L. J., C. R, 313; 7 Jur. (N. S.), 47; 8 W. R., 470 334,346,418,503,518 Anderson v. Hamilton, 3 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., 148; 4 M. & R, 870 - - 173, 174 Annison v. Blofleld, Carter, 214 185, 279, 285, 299 Anon. (Exch.), 1 Roll. Abr., 55 279,299 Anon., Pasch., 11 Jac. I; IRoll. Abr., 746 303 Anon., 1 RolL Abr., 83 - - 638 Anon., 3 Leon., 213; 1 Roll. Abr., 65 - - - - '- - 142,253 Anon., Holt, 652 267 Anon., Cro. Eliz., 563 253, 265 Anon., 11 Mod., 99 637 Archbold v. Sweet, 1 Moo. & Rob., 163; 5 C. & R, 219 - - - - 73 Armitage v. Bunster, 4 Dongl., 291 ... .... 759 Arne V. Johnson, 10 Mod., Ill 173,195,284 Arvarillo v. Rogers, Bull. N. P., 5 810 Aahley v. Harrison, Peaks, 194, 256; 1 Esp., 48 - 781, 852, 869, 929, 931 Ashmore v. Borthwick, 49 J. P., 793; 2 Times L. R., 113. 209 554, 559 Astley (Sir John) v. Younge, 2 Burr., 807 ; 2 Ld. Ken., 536 - - 465, 470 Aston V. Blagrave, 1 Str., 617; 8 Mod., 270; Fort., '206; 2 Lord Rayni., 1369 38, 180, 184 Atkins V. Perrin, 3 F. & F., 179 216, 934 Austin (Sir J.) v. Culpepper, 2 Show., 313; Skin., 133 - - 58, 78 Axmann v. Lund, L. R, 18 Eq., 330; 43 L. J., Ch., 655; 22 W. R., 789 236 Ayre V. Craven, 4Nev. &M., 220; 2 A. &E., 2 - - 174,191,754,855 Baal V. B&ggerly, Cro. Car., 336 142,253 Baboneau v. Farrell, 15 C. B., 360; 24 L. J., C. P., 9; 3 C. L. R, 42; 1 Jur. (N. S.), 114 197, 385, 841 Bagnallv. Underwood, 11 Price, 621 - 75i Baker v. Morfue vel Morphew, Sid., 327; 2 Keble, 202 - - 183, 184, 185 Baker V. Pierce, 2 Ld. Raym., 959; Holt, 654; 6 Mod., 23; 2 Salk., 695 95, 130, 353 Ixxiv TABLE OF CASES CITED. Baker v. Piper, 2 Times L. R.. 733 - - - - - „" „- 316 Baldwin v. Elphinston, 2 W. BI., 1037 - - - 332, 241. 763 Baldwin v. Flower, 3 Mod., 120 368 Banister v. Banister. 4 Eep., 17 - - - - - - 314 Bank v. Henty, 7 App. Cas., 741 - - - - • - §90 Bank of British N. A. v. Strong, 1 App. Cas., 307; 84 L. T„ 627 - 460, ol4 Baptist Hicks' Case, Hob., 215 . . 59 Barham'sCase,4Rep., 20; Yelv.,21 - - - - 134.250,628 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 V. Traunter, 1 Vin. Abr., 396 862 Barnard v. Salter, W. N. 1882, p. 140 - - - - - - "'^ Barnes V. Holloway, 8 T. R., 150 ----- 195.759,810 Barnes v. Prudlin, or Bruddel, 1 Sid., 396; 1 Ventr., 4; 1 Lev., 261; 2 Keb., 451 - - - - - 862, 871 Barnetv. Wells, 13 Mod., 420 - - 203 Barnett v. Allen. 3 H. & N., 376 ; 27 L. J., Ex., 412 ; 1 F. & F., 125 - 106. 244, 279, 769, 854 Barney v. United Telephone Co., 28 Ch. D., 394; 33 W. R., 576; 53 L. T., 573 226 Barrett v. Long, 3 H. L. C, 395; 7 Ir. L. R, 430; 8 Ir. L. R, 331 - 331, 334, 336, 7^7 Barrow v. Lewellin, 1 Hob., 153 - - - - - 234, 235, 236 Barry v. M'Grath, Ir. R, 3 C. 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, 240 ------- 180 Beatson v. Skene, 5 H. & N., 838; 29 L. J., Ex., 430; 6 Jur. (N. S.). 780; 8 L. T., 878 - - - - ■ - 411, 494, 497, 833 Beauchamps (Lord) v. Sir R Croft, Dyer, 285 - - - - 460 Beavor v. Hides, 3 Wilson, 300 ----- - - 120, 253 Behrens v. Allen, 3 F. & F., 135; 8 Jur. (N. S.), 118 - - - 655 Bell V. Byrne, 13 East, 554 110 Bell V. Midland Railway Co., 10 C. B. (N. S.), 287; 30 L. J., P. C. 273; 9 W. R, 612; 4 L. T., 293 787, 842, 883 Bell V. Parke, 10 Ir. C. L. R, 279; 11 Ir. C. L. R, 413 - - 411, 480, 527 Bell V. Stocker, 10 Q. B. D., 129; 52 L. J., Q. B., 49; 47 L. T., 624 - - 867 Bell V. Stone, 1 B. & P., 331 58. 80 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., 607 725. 848 Bennett v. Bennett, 6 C. & P., 588 356 894 Bennett v. Deacon (1846), 2 C. B., 628; 15 L. J., C. P., 289 - 413, 483, 487 Benson v. Flower, Sir W. Jones, 215 - . . - . - 371 Berryman v. Wise, 4 T. R, 866 751, 753, 755 Biggs V. Great Eastern Railway Co., 16 W. R, 908 ; 17 L. T., 482 - 664 Bignell v. Buzzard, 3 H. & N., 317; 37 L. J., Ex., 355 - - 75, 230 Bill V. Neal, 1 Lev., 52 180 184 Bishop V. Latimer, 4 L. T., 775 ... 73, 1S35. 139, 558*, 663 Bittridge'sCase, 4Rep.,19 267,376,395,306 Black V. Hunt, 3 L. R,"Ir.. 10 - - . - - 106 854 Blackburn v. Blackburn, 4 Bing., 395; 1 M. & P., 83, 63; 3 C. & P., ' 146- --,------..- 324 Blackham v. Pugh, 3 C. B., 611 ; 15 L. J., C. P., 390 - 317 514, 538 Blackman v. Bryant, 37 L. T., 491 - - - - - - 106 379 Blagg V. Sturt, 10 Q. B., 899, 906; 16 L. J., Q. B., 39; 11 Jur. 101; ' T,, ,^ ^- T-,,'9- ^-^ ^^^ - - - 72, 337. 416. 508, 542, 777, 883, 933 Blake v. Albion Assurance Society, 4 C. P. D., 94; 48 L J C P- 169• 37 W. R, 321; 40 L. T., 311 - - - :'-■■-' : 837 Blake V. Pilfold, IM. & Rob., 198 541 789 Blake V. Stevens, 4 F. & F., 233; 11 L. T.. 543 73, 337, 239,654, 663, 883! 933 Bhssv. Stafford, Owen, 37; Moore, 188; Jenk., 147 - - 306 214 Blumley v. Rose, 1 Roll. Abr., 73-- ' 373 Bold V. Bacon, Cro. Eliz., 346 ■--.-.- 209 Bolton V. O'Brien, 16 L. R, Ir., 97, 483 806, 331 ENGLISH CASES. IXXV Bolton (Sir Williain) v. Dean, cited in Austin v. Culpepper, 3 Show., 313; Skinner, 13.3 - - . . . . . 80 Bond V. Douglass, 7 C. & P., 626 - - - - 346, 381, 757, 935 Boosey v. "Wood, 3 H. & C, 484 ; 34 L. J., Ex., Co ; 11 Jur. (N. S.), 181 ; 13 W. R., 317; 11 L. T., 639 -- - . . . 740 Booth V. Briscoe (C. A.), 3 Q. B. D., 496; 35 AV. R., 838 - 73,374,591 Boston V. Tatam, Cro. Jac, 623 - 110 Botterill v. Whytehead, 41 L. T., 588 - - 183, 192, 487, 534, 664 Boulton V. Chapman, Sir W. Jones, 431 ; March CO, pi. 45 - - 434, 445 Bourke v. Warren, 2 C. & P.. 307 - - 259, 263, 758 Bourn's (Sir John) Case, cited Cro. Eliz., 497 - - - - 263 Boxe V. Barnaby, 1 Roll. Abr.. 55; Hob., 117 .... i85 Bovdell V. -Jones, 4 M. & W., 446; 7 Dowl., 210; 1 Horn & H., 408 - 59, 69, 286, 300, 558 Boyle V. Wiseman, 10 Ex., 647: 24 L. J., Ex., 160; 24 L. T. (O. S.). 274 7C-'. Bracebridge v. Watson, Lilly Entr., 61 - - - - 186, 783, 862 Brady v. Youlden, Kerferd & Box's Dig. Vict. Cas., 709 - 174, 197, 872 Brand and wife v. Roberts and wife, 4 Burr., 2418 - - 31, 165, 873 Brandrick v. Johnson, 1 Vict. L. R., C. L., 306 - - • 173, 192 Bray v. Ham, 1 Brownl. & Glolds., 4------- 197 Bray (Sir Edward) y. Andrews, Moore, 63 31, 96 Brayne v. 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, STimes L. R., 593 570 Brent V. Spratt, Times, Feb. 3, 1883 191.288 Brett V. Watson, 20 W. R., 723 237, 239, 385 Brine v. Bazelgette, 3 Ex., 692: 18 L. J., Ex., 348 - - - - 771, 878 Brinsmead v. Harrison, L. R, 7 C. P., 547; 41 L. J., C. P., 190; 20 W. R., 784 - - - 900 Broke's Case, Moore, 406 - - - - ■ - - 186 Bromage v. Prosser, 6 D. & R, 296; 4 B. & C, 347; 1 C. & P., 475 39, 333, 337, 410, 497, 533, 773 Bromfield v. Snoke, 13 Mod., 307 - 197 Brook V. Evans, 39 L. J., Ch., 616; 6 Jur. (N. S.), 1035; 8 W. R., 688 - 346. 246b, 548 Brook V. Montague (Sir Henry), Cro. Jac, 90 - '- 438, 431, 434, 435 Brook V. Rawl, 4 Ex., 531; 19 L. J., Ex., 114 .... 206, 315 Brook V. Wise, Cro. Eliz., 878 200 Brookev. Avrillon, 42L. J.,C. P., 136 347 Brooke v. Clark, Cro. Eliz., 338: 1 Vin. Abr., 464 184 Brookes v. Tichiorne, 5 Ex.. 939; 30 L. J., Ex.. 69; 14 Jur., 1123 58, 759 Brooks V. Blanshard, 1 Cr. & M., 779; 3 Tyr., 844 - - 487, 531 Broome v. Gosden, 1 C. B., 728 259, 619, 637 Brown v. Brine, 1 Ex. D., 5; 45 L. J., Ex., 129; 24 W. R., 177; 33 L. T., 703 - - - - - 60 Brown V. Croome, 2 Stark., 297 343, 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; 22 L. J., C. P., 151; 1 C. L. R., 4: 17 Jur., 807- 194,783,839,861 Brown v. Wootton, Cro. Jac, 73; Yelv., 67; Moo., 763 - . - 900 Browne v. Murray, Rv. & Moo., 254 - 794 Bruce v. Nicolopulo, 11 Ex., 133; 24 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., Q. B., 30; 14 Jur., 110; 3 C. & K., 10 - - - - 239, 240, 243. 516, 519, 769 Brunswick (Duke of) v. Pepper, 2 C. & K., 683 900 Bruton v. Downes, 1 F. & F.. 668 - 471 Brvcev. Rusden, STimesL. R.. 435 570,921 Buckley v. Wood, 4 Rep., 14a; Cro. Eliz.. 230 - - 431, 460, 461, 470 Burcher v. Orchard et ux.. Style, 349; 1 Roll. Abr., 781 - - 369, 382 Burdett V. Abbot, 5 Dow. H. L., 165 ; 14 East, 1 - ■ 229 241, 246, 75 , Surges V, Bracher, 8 Mod., 238; 2 Ld. Raym,, 1366; 1 Stra,, 594 - 803 Ixxvi TABLE OF CASES CITED. Burnet V. Wells, 13 Mod., 420 145 Burnett v. Tak, 45 L. T., 743; W. N. 1883, 8 208, 326 Burton v. Plummer, 2 A. & E., 343 'i'eO Burton v. Tobins, Cro. Jac, 143 -, 38, 180 Button V. Heywai-d et ux.. 8 Mod., 24 96, 303 Byrchley'sCase, 4Rep., 16 185 Ceesar v. Curseny, Cro. Eliz., 305 172, 180 Calder v. Halket, 3 Moo. P. C. C, 38 426 Campbell v. Spottisvvoode, 3 B. & S., 769; 33 L. J., Q B., 185 : 37 J. P., 501 ; 9 Jur. (N. S.), 1069; 11 W. R., 569 58, 74, 566, 572, 575, 588 Cane v. Golding, Style. 169. 176 - - - - 206, 314, 639 Cannellv. Curtis, 3 BJng. N. C, 228; 3 Scott, 379 - - 753 Capel V. Powell, 17 C. B. (N. S ), 743; 34 L. J., C. P., 108 - 367 Capel V. Jones, 4C. B., 259; llJur., 396 - - - - - 284 Capital & C. Bank v. Henty, 28 W. E., 490 - 65, 281, 283, 528, 769 rftrmiohael v. Waterford & Limerick R'y Co., 13 Ir. L. R., 313 - 323, 878 Cam V. Osgood, 1 Lev., 280 - - - - - - 180 Carpenter v. Tarrant, Cas. Temp. Hardwicke, 339 - - - 110 Carr V. Duckett, 5H. &N.. 783; 29L. J., Ex.,468 ■ - - 309, B65 Carr v. Jones, 8 Smith, 491 ; S. C. sub nom. Stiles v. Nokes, 7 East, 493 - - - 59, 557 Oarr (Sir John) v. Hood, 1 Camp., 355, n . .- . 566, 568, 588 Carroll v. Bird, 3 Esp., 301 - - - - ... 491 Carroll v. Falkiner, Kerferd & Box, Dig. of Vict. Cases, 216 - 931 Carslake V. Mapledoram, 2T. R., 473 198 Casey v. Arnott, 3 C. P. D., 24; 46 L. J., C. P., 3; 25 W. R., 46; 35 L. T., 434 - ■ - . . ; . . - . 323 Castleman v. Hobbs, Cro. Eliz., 428 - - . - . - 619 Caulfield v.Whitworth, 16 W. R., 936; 18 L. T., 537 . - 335, 347, 771 Caus V. Roberts, 1 Keb., 418; S. 0. sub nom. Roberts v. Herbert, Sid., 97 - .... 165, 873 Cawdry V. Highley, al. Tythay, al. Tetlev, Cro. Car., 270; Godb., 441 184, 186 Ceely v. Hoskins, Cro. Car., 509 .... 103, 1O6, 125, 256 Chadwick v. Herapath, 3 C. B., 885; 16 L. J., C. P., 104; 4 D. & L., 653 . ... 908 Chalmers v. Payne, 3 C, M. & R., 156; 1 Gale, 69; 5Tyr.. 766 293, 551, 553 . Chalmers V. Shackell, 6 C. & P., 475 348 662 797 Chamberlain v. Boyd (C. A.), 11 Q. B. D.. 407; 53 L. J., Q. B., 277;' 31 W. R., 572 ; 48 L. T., 328 ; 47 J. P., 372 - - 784, 854, 863, 930 Chambers v. White, 3 Jones, 383 - . . . - 370 Chapman, Ex parte, 4 A. &E., 77^ 970 Chapman v. Lamphire, 3 Mod., 155 ....... 193 195 Charlter v. Barrett, Peake, 33 '30, Charlton v. Watton, 6 C. & P., S85 547 Charnel's Case, Cro. Eliz., 279 - jjg Charter V. Peter, Cro. Eliz., 603 gsg rwT ""'a ffl^'f ■ ^'^A^- -f Tv/^,^ '^^^ ^- J" ^^- 13 ; 6 Jur. , 958 58, 78, 343 Child V. Affleck and wife, 4 M. & R., 338 ; 9 B. & C, 403 ■ - 497 Christie V. Christie, L. R, 8 Ch., 499; 43 L. J., Ch., 544: 31 W. R 493; 28 L. T., 607 . . '. _ "•> ^"•. "»■*. -ii vv. K., Chubbv. Flanuigan, 6C. & P., 431 .... Iao Clmbb V. Westley, 6 C. & P., 436 332 qqd qqR 77« Clt.uxchill (Lord) V. Hunt. 2 B. & Aid., 685; 1 Chit. 480 - - 59-' 897 Cliuges (Sir Thomas) v. Rowe, 3 Lev., 30 . - - .. . ' ^1 Clark V. Freeman, 11 Beav., 113; 17 L. J., Ch., 142; 12 Jur., 149 73, 76, 195, Clark V. Molyneux, 3 Q. B. D., 337; 47 L. J., Q. B., 230; 26 W. R, 104; 36 L. T,, 466; 37 L. T., 694; 14 Cox, C. C, 10; 41 J. P., 293- 43 J P ni f^ ivT " ' .^' -,;, " - 207, 316, 323, 334, 393, 484, 489; 537, 770 Clark ¥. Newsam, 1 Ex., 131 - ... . S'>3 Clarke v. Morgan, 38 L. T., 354 I 934 Clarke v. Taylor, 3 Scott, 95; 3 Bing. N. C, 654; 8 Hodges, 65 - 663 847 Clarke's Case de Dorchester, 3 Roll. Rep., 136 856 627 Clarkson v. Lawson, 6 Bing., 366, 587; 3 M. & P., 605; 4 M. & P 356 - ' 73 ENGLISH CASES. Lxxvii Clay V. Roberts, 9 Jur. (N. S.), 580; 11 W. R., 649; 8 L. T., 397 - - 74 Cleaver v. Sarraude, 1 Camp., 268 ------.. 489 Clegg V. Laffer, 3 M. & Scott, 737; 10 Bing., 250 102, 332, 251, 265, 627 Clement v. Chivis, 9 B. & C, 173; 4 M. & R., 127 - - - - 58 Clement v. Lewis, 7 Moore, 300; 3 Br. & Bing., 29? ; 3 B. & Aid., 703 73, 307, 558, 662 Clerk V. Dver, 8 Mod., 290 - - - - - 263 Clifton V. Wells, 13 Mod., 634 200 Clinton v. Henderson, 13 Ir. C. L. R., A pp., 43 - - - 727 Clover V. Royden, L. R., 17 Eq., 190; 43 L. J., Ch., 665; 23 W. R., 254; 29 L. T., 639 ,- - - - - - - . 433, 488 Clutterbuck v. Chaffers, 1 Stark., 471 - 233, 763, 971 Cockaine v. Hopkins, 2 Lev., 214 - - - . . 106, 36U, 854 Cockaine's (Lady) Case, Sir Thos. Cockaine and wife v. Witnam, Cro. Eliz., 49 . - . . 150 Cockayne v. Hodgkisson, 5 C. & P., 543 - - - 389, 488, 499, 789 Coe V. Chambers, 1 Roll. Abr.. 75; Vin. Abr., c. b., 4 - - 263 Colburn v. Patmore. 1 C, M. &R., 73; 4 Tyr., 677 - - 341,383,900 Coleman et ux. v. Hareourt, 1 Lev., 140 - - - - 166, 365 Coleridge. Q. C, Ex rel., 15 C. B., 410 413, 487 Coles V. Haveland, Cro. Eliz., 250; Hob., 13 - - - - - 379, 300 Collier v. Barrell, 1 Sid., 373 ■ - 160 Collins V. Carnegie, 3 N. & M., 703; 1 A. & E., 695 - - 191, 753 Coleman V. Godwin, 3 Dougl., 90; SB. &C., 385, n. - - 150, S4i) Connors v. Justice, 13 Ir. C. L. R., 451 ... 17a Cook V. Field, 3 Esp., 133 795 Cook V. Ward, 6Bing., 409.;4M. &P., 99 768 Cook V. Wingfield, 1 Str., 555 - ... 3i_ 164, 165, 873 Cook V. Batchellor, 3 Bos. & Pul., 150 - - - - - - 371 Cooke V. Brogden & Co., 1 Times L. R., 497 849 Cooke V. Hughes, R. & M., 113 58,30-5,710,901 Cooke v. Wildes, 5 El. & Bl., 328 ; 24 L. J., Q. B., 367 ; 1 Jur. (N. S.), 610 ; 3 C. L. R., 1090 334, 330, 343. 416, 514, 933 Cooper V. Blackmore, 3 Times L. R., 746 - - - - 337 Cooper V. Hawkeswell, 3 Mod., 58 366 Cooper V. Lawson, 1 P. & D., 15; 8 A. & E., 746; 1 W., W. & H., 601 ; 3 Jur., 919 - - - 547,558,573,575,655,931,933 Cooper V. Smith, Cro. Jac, 433: 1 Roll. Abr., 77 - - - 130,254 Corcoran and wife v. Corcoran, 7 Ir. C. L. R., 273 - - - 639, 783, 862 Core V. Norton, Yel., 28 - - - 123 Cornwall v. Richardson, R. & M., 305 - - - - 771, 876, 878 Cory V. Bond, 3 F. &F., 241 - ........ 73 Cotes V. Ketle, Cro. Jac, 304 - - 173, 197 Cowan V. Milbourn, L. R, 2 Ex., 230; 36 L. J., Ex., 124; 16 L. T., 290 953, 058 Coward v. Wellington, 7 C. & P., 531 166, 533, 86. Cowles V. Potts, 34 L. J., Q. B., 347 ; 11 Jur. (N. S.), 946; 13 W. R., 858 ; 30J. P., 804 410.497,518 Cox V. Cooper, 13 W. R., 75; 9 L. T., 329 - - - - 66, 380, 619 Cox V. Feeney, 4 F. & F., 13 583 Cox V. Lee, L. R., 4 Ex., 284; 38 L. J., Ex., 319 .... 58,59 Coxhead v. Richards, 3 C. B., 569; 15 L. J., C. P., 278; 10 Jur., 984 73, 484, 490, 495 Craft v. Boite, 1 Saund., 243 39 Crafts V. Brown, 3 Buls., 167 95 Crauden V. Walden, 3Lev., 17 188 Crawfoot V. Dale, 1 Ventr., 263; SSalk., 337 197 Creevy v. Carr, 7 C. & P., 64 243, 894, 899 Creighton v. Finlay, Arm., Mac. & Ogle (Ir.), 385 .... 894 Crisp v. Gill, 29 L. T. (O.S.), 83 .... 195, 513, 52s Cristie v. Cowell, Peake, 4 276, 295 Croford V. Blisse, 3 Buls., 150 133,267 Croft V. Stevens, 7 H. & N., 570; 31 L. J., Excb., 148; 10 W. R.. 373; 5 L. T., 683 417, 523 f Ixxviii TABLE OF CASES CITED. Crofts (Sir Harbert) v. Brown, 3 Buls., 167 - - - " 31, 134, 350 Cropp V. Tilney, 3 Salk., 226 - - -„" ^ n\v. \" o'ah ' iin Cuddington V. Wilkins, Hobart, 67, 81 ; 3 Hawk. P- C-, ch. 3., § 48 - 110 Curtis V. Curtis, 3 M. & Scott. 819; 4 M. & Scott, 337; 10 Bing., 477 - lU Cutlerv. Cutler, 10 J. P., 169 aqi dfiO 4fil Cutler V. Dixon, 4 Rep., 14 431, 4b0, 4bl Dacy V. Clinch, Sid., 53 ----- , „% ■,„„: ' o4?'qnff Daines v. Hartley, 3 Ex., 200; 18 L. J., Ex., 81 ; 13 Jur., 1093 - 2^'8j ^ Darby v. Ouseley, 1 H. & N., 1; 25 L. J., Ex., 227: 3 Jur. (N. SO.^497^^306^ Barley Main Colliery Co. v. Mitchell, 11 App. Cas., 237; 55 L. J., Q. B., KOQ. f\A. T T* ftS9 . - - . - - - - 0'±*, Ot>* Davies v. Snead.'L R., 5 Q. B., 608; 39 L. J., Q. B., 203; 23 L. T. 609; 34 J P 693 ..------- ^i)"' 40d. 40» Davies and'Wife v. Solomon, L. R., 7 Q. B., 113; 41 L. J., Q. B., 10 - 165, Davis V. Cutbush, 1 F. & F.. 487 - - ", " „ \,, " „ " J^^' 89* Davis V. Duncan, L. R.. 9 C. P., 396; 43 L. J., C. P., 185; 23 W R 575; SOL. T., 464; 38 J. P., 728 - - - 543,579,584,585 Davis V. Gardiner, 4 Rep., 16; 2 Salk., 694; 1 Roll. Abr., 38 (Anne T>avi Fisher v. Clement. 10 B. & C. 472; 5 Man. & Ey., 730 - - - 324, 769 Fitter V. Veal, 12 Mod., 543; B. N. P., 7 - - - •, „-„ - ^fjf^j'^ Fleetwood (Sir M.) v. Curl or Curley, Cro. Jae., 557; Hob., 238 180, 262, 301 Fleming v. Newton, I. H. L. Cas., 363 - 246 246& Flintv. Pike, 6D. &R., 538; 4B. &C.,473 - - - - 424,428,558 Flowers' Case, Cro. Car., 211 183, 183 Floyd' V. Barker, 13 Rep., 24 ffo Force V. Warren, 15 C. B. V. Beamond, Cro. Jac, 56 ----- 180 Harper v. Thompson, 13 (J. B., 333 - - 834, 836, 380, 489, 531, 778, 832 Harrison v. Bevington, 8 C. & P., 708 - - - - rJ4, 3:\ 373 Harrison v. Bush, 5 El. & Bl.. 344; 35 L. J., Q. B., 35, 99; 1 Jur. (N. S.), 846; 2 Jur. (N. S.), 90; 30 J. P., 147 - 335, 389, 390, 391, 476, 343 Harrison v. Eraser, 29 W. R., 653 - 504 . Harrison v. King, 4 Price, 46; 7 Taunt., 431 ; 1 B. & Aid,, 161 108, 266, 507 Harrison v. Pearce, 1 F. & F., 567; 33 L. T. (O. S.), 898 343. 244, 379, 847, 868, 900, 901, 9^3, 92.4 Harrison v. Reed, 3 F. & F., 149 - - - - - - - 3H2 Harrison v. Stratton, 4 Esp., 317 . . - - - - 10!) Harrison v. Thornborough, 10 Mod., 196 ; Gilb. Cas. in Law & Eq., 114 108, 195, 265 Hart V. Gumpach, L. R., 4 P. C, 439; 43 L, J., P. C, 25; 31 W. R., 365 473 Ixxxii TABLE OF CASES CITED. Hart V. Wall, 2 C. P. D.. 146: 46 L. J., C P., 227; 25 W. R., 373 76 215 Hartleyv.Herring, 8T. E., 130 - - 39,186,204,781,862,865,873 Hartwell V. Vesey etux., 3L. T., 275 - " ' " ■ " „„„ Harvey v. French, 1 Cr. & M., 11; 2 M. & Scott, 591 ; 2 Tyrw., 585 59, 2.3, 629 Harwood v. Astley (Sir J.), 1 B. & P., N. R., 47 - - - - 579 Harwoodv. Green, 3 0. &P., 141 . - - - - ^^' J°2 Harwood et ux. v. Hardwick et ux., 2 Keb., 387 oo5 Hassell v. Capcot, 1 Vin. Abr., 395; 1 Roll. Abr.. 36 - - 31, 165 Hatchard v. Mdge, 18 Q. B. D., 771 ; 35 W. R., 576 ; 3 Times L. R., 546 ; 51 J. P., 277 - - - - - - 375 Hawkes v. Hawkey, 8 East, 437 -' "28 Haythorn V. Lawson, 3 0. &P., 196 864 Hayward & Co. v. Hayward & Sons, 34 Ch. D., 198 ; 56 L. J., Oh., 287; 35 W. R. 392 ... 555 Haywood v. Naylor, 1 Roll. Abr., 50 267 Head v. Briscoe et ux., 5 C. & P., 485 ; 2 L. J., 0. P.. 101 ■ - 367, 509 Hearne v. Stowell, 13 A. & E., 719; 11 L. J., Q. B., 25; 4 P. & D., 696; 6Jur.,458 - - 242,257,563 Hedleyv. Barlow, 4 F. &F., 234 578,581 Helsham v. Blackwood, 11 0. B., Ill ; 20 L, J., C. P., 187 ; 15 Jur., 861 571, 653, 654, 664 Heming and wife v. Power, 10 M. & W., 564 - - - 135, 144, 259, 276 Hemmings v. Gasson, El., Bl. & El., 346; 37 L. J., Q. B., 252; 4 Jur. (N. S.), 834; 22 J. P., 719 339, 346, 523, 778 Henderson v. Broomhead, 4 H. & N., 569; 28 L. J., Ex., 360; 5 Jur. (N. S.), 1175 432, 435, 451, 460, 465, 469 Henwood v. Harrison, L. R., 7 C. P., 606; 41 L. J., C. P., 206; 20 • W. R., 1000 - - - - - - 389,412,482,566,578,589 Heriot v. Stuart, 1 Esp., 437 - - - - - - - 74, 588 Herver v. Dowson, Bull. N. P., 8 - - - - 414, 483, 487 Hext V. Yeomans, 4 Rep., 15 130, 254 Hibbins v. Lee, 4 F. & F., 243; 12 L. T., 541 - - - - 571, 582, 923 Hibbs V. Wilkinson, 1 F. & F., 608- - - - - 523, 584, 585 Hickinbotham v. Leaob, 10 M. & W., 361 ; 3 Dowl. (N. S.), 270 379, 300 Hicks' (Sir Baptist) Case, R. v. Garret. Hob., 315; Poph., 139 - - 238 Higginson v. Flaherty, 4 Ir. C. L. R, 125 - ■ - - 446 Highmore v. Earl and Countess of Harrington, 3 C. B. (N. S.), 143 173, 188 Hilliard (Sir Christopher) v. Constable, Cro. Eliz., 306; Moore, 418 - 180 Hirst V. Goodwin, 3 F. & F., 257 - - 863, 866 Hixe V. HoUingshead, Cro. Car., 261 - - - - - 165 874 Hoare v. Silverlock, 12 Q. B., 624; 17 L. J., Q, B., 306; 13 Jur., 695 - 58, „ , 373, 531, 769, 833 Hobbs V. Bryers, 2 L. R., Ir., 496 417,529 Hodgkins et ux. v. Corbet et ux., 1 Str., 545 264* 873 Hodgson V. Scarlett, 1 B. & Aid., 232; Holt, N. P., 621 39, 106, 424, 438, „ „ , , ^ 432, 434, 435, 446, -465, 789 Hoey V. Felton, 11 C. B. (N. S.), 143; 31 L. J., C. P., 105 - - . 930 Holland v. Stoner, Cro. Jac, 315 303 Hollingshead's Case, Cro. Car., 229 ------ 165 874 Hollis (Sir John) v. Briscow et ux., Cro. Jac, 58' ' 180 Holmes v. Catesby, 1 Taunt., 543 653 Holt Y. Scholefield, 6 T. R. 691 - . - 33, 68, 106, 125, 256, 638 Hoi wood V. Hopkms, Cro. Ehz., 787 ' - - - - - 733 863 934 Home V. Bentinck, 4 Moore, 563; 3 B. & B., 130 - 434 475' 76 1' 789 Homer v. Taunton, 5 H. & N., 661; 39 L. J., Ex., 318: 8 W.'r. 499;' 3L. T..513 - „- - ^- 59,373,279,399,769 Hooker V. Tucker, Holt, 39; Carth., 330 - - - - - - 195 Hooper v. Truscott, 2 Scott, 672; 2 Bing. N. C, 457 - - 328 414 504 Hopwood V. Thorn, 8 C. B., 293; 19 L. J., 0. P., 94: 14 Jnr., 87 '188 411 „ , Tj 1 o-j 00™ 482, 494, 497, 854, 862, 871 Horton v. Byles, Sid., 387 - - - - 365 Houldon V. Smith, 14 Q. B., 841; 19 L. J., Q. B., 170 - - - .436 ENGLISH CASES. Ixxxiii How V. Prin, Holt, 653; 7 Jlod., 107: 1 Brown's P. C, 64; Salt. 694- 2 Ld. Uaym.. 813 - - . 177,180,184,356,535 Howe V. Jones, 1 Times L. R., 19, 461 - - 325, 339, 842, 418, 502 Huckle V. Mooney, 2 Wils., 305 ■ - 910 Hucklev. Reynolds, 7 0. B. (N. S.), 114 135,264 368 Hume V. Marshall, Times, Nov. 36, 1877; 42 J. P., 146 - 173, 193, 837, 330 „ . 412,482 Humphreys V. Miller, 4 0. & P., 7 413,483,769 Humphreys V. Stillwell, 3 F. &F., 590 - ... - 638 Humphrys v. Stanfeild, Ore. Oar., 469; Godb., 451 ; Sir W. Jones, 388; 3 Roll. Abr., 38 - - - - .... 2O6, 214 Hunt V. Algar and others, 6 0. & P., 245 - - - - 343. 391, 308 Hunt V. Goodlake, 43 L. J.. O. P., 54; 39 L. T., 473 - 66, 288, 619, 835 Hunt V. Jones, Oro. Jac. , 499 - - ... . 780,871 Hunt V. Thimblethorp, Mod., 418 267 Hunter v. Sharpe, 4 F. & F., 983; 15 L. T., 421 ; 30 J. P., 149 74, 584, 586. 629, 840 Huntley v. Ward, 6 C. B. (N. S.), 514; 1 F. & F., 552; 6 Jur. (N. S.), 18 344, 417, 477, 495, 514 TAnson v. Stuart, 1 T. R., 748; 2 Sm. L. C. 6th ed., p. 57 - - 59, 653 Ingram v. Lawson, 6 Scott, 755; 5 Bing. N. O., 66; 7 DowJ., 125; 1 Am., 387; 6 Bing. N. C, 213; 8 Scott, 471 ; 4 Jur., 151 ; 9 C. & P., 836 - ... 76, 169, »03, 330, 364, 797, 847, 864, 933 Ireland V. Ohampneys, 4 Taunt., 884 ... ... 375 Irwin V. Brandwood, 3 H. & O., 980; 33 L. J., Ex., 357 ; 10 Jur. (N. S.), 370; 43 W. R., 438 73,173 Isbam V. York, Ore. Oar., 15 --------- 180 Jackson v. Adams, 2 Scott, 599; 3 Bing. N. O., 403; 1 Hodges, 78 113, 114. 335 Jackson v. Hopperton, 16 0. B. (N. S.), 829; 13 W. R., 913; 10 L. T., 539 321, 323, 328, 339, 493, 775, 931 Jacob V. Mills, 1 Ventr., 117; Oro. Jac, 343 113 James V. Boston, 3 0. &K., 4 489,507 James v. Brook, 9 Q. B., 7; 16 L. J., Q. B., 17; 10 Jur., 541 173, 174, 175 James v. Jolly, Bristol Summer Assizes, 1879 - - - 413, 481 James V. Rutlech, 4Rep., 17 . 263,619 Jefferies V. Duncombe, 3Camp., 3; 11 East, 336 971 Jekyll V. Sir John Moore, 2 B. & P., N. R., 341; 5 Esp,, 63 - • - 424 Jenkins v. Smith, Oro. Jac, 685 - - - - - - - -185 Jenkinson v. Mayne, Oro. Eliz., 384; 1 Vin. Abr., 415 - - - 108, 111 Jennerv. A'Beokett, L. R., 7 Q. B., 11; 41 L. J., Q. B., 14; 20 W. R., 181 76, 195, 281, 291, 584 Jesson V. Hayes, Roll. Abr., 63 197,203 Johns V. Gittings, Oro. Eliz., 239 197,663 Johnson V. Evans, 3 Esp., 33 461,465,501,503,789 Johnson v. Hudson & Morgan, 7 A. & E., 233, n. ; 1 H. & W., 680 - 243, 760, 971 Johnson v. Lemmon, 3 Roll. Rep., 144 ------- 194 Jones V. Davers vel Dawk^s, Oro. Eliz., 496; 1 Roll. Abr., 74 - 263, 277 Jones V. Heme, 2 Wils., 87 106,143,164,253 Jones V. Hough (0. A.), 5 Ex. D., 115; 49 L. J., O. P., 211; 42 L. T., 108 - 873 Jones V. Littler, 7 M. &W., 423: 10 L. J., Ex., 171 - - - 195,754 Jones V. Richards, 15 Q. B. D., 439; I'Times L. R., 660 ... 744 Jones V. Stevens, 11 Price, 235 653, 753, 755 Jones V. Thomas, 34 W. R., 104; 53 L. T., 678; 50 J. P., 149; 1 Times L. R., 573 35), 346, 414, 493, 503 Jones V. Williams, 1 Times L. R., 573 - - - - 239, 413, 4B1, 503 Kane v. Mulvany, Ir. R., 2 0. L., 403 421, 544, 553 Keighley v. Bell, 4 F. & F., 768 471 Ixxxiv TABLE OF CASES CITED. Kelly V. Partington, 4 B. & Ad., 700; 2 N. & M.» 460; 5 B. & Ad., 643; 3N. &M.,116 - - - - - - - - 385,328,339,776 Eelly V. Sherlock, K R., 1 Q. B., 686; 85 L, J., Q. B., 209; 12. Jur (N. S.), 937 - - - - - - - - S'i'S, 848, 902 KeUy V. Tinling, L. R., 1 Q. B., 699; 35 L. J., Q. B., 331; 14 W. R., 51 ; 13 L. T.. 355; 12 Jur. (N. S.), 940 - - - - '2, 591 Kendillon v. Maltby, 1 Car. & M., 402; 3 M. «& Rob., 438; 1 Dow. & Clark, 495 - - - - ..... 858, 424, 934 Kennedy v. Hilliard, 10 Ir. C. L. R., 195; 1 L. T., 578 - - 419, 451, 460 Kerrv.Shedden, 4 0. &P., 538 - 497,930 Kershaw V. Bailey, lExch., 743; 17 L. J., Ex., 129 - 827,508,529,531 Keyzor v. Newcoinb, 1 F. & F., 559 - - - - ^■5; 243 Kine v. Sewell, 3 M. & W.,.297 - - 414, 489, 494, 508, 518 King V. Bagg, Cro. Jac, 331 - - - - - 256 King V. Lake, a Ventr., 28; Hardres., 470 186 King V. Waring et ux., 5 Esp., 15 ... - - 243, 518, 790 King V. Watts, 8 C. & P., 614 - - - 413, 483, 487, 499, 861, 930 Kinnahan v. McCullagh, Ir. R., 11 C. L.. 1 - - - - 273, 527 Kirbyv. Simpson, 10 Exch., 358; 3 Dow]., 791 426. Knightv. Gibbs, 1 A. &B.,43; 3N. &M.,4B7 - - - - 789,932 Koenig v. Ritchie, 8 F. & F., 413 - ... 523, 584. 585 Lefone v. Smith, 3 H. & N., 735; 28 L. J., Ei., 33; 4 Jur. (N. S.). 1064 909 Lake v. King, 1 Lev., 341 ; 1 Saund., 131 ; Sid'., 414; 1 Mod., 58 - 338, 346, 431, 461, 507. 542 Lamb's Case (John), 9 Rep., 60 241, 971 Lancaster V. French, 3 Str., 797 - 197 Laughton v. Bishop of Sodor and Man, L. R.,,4P. C. 945; 43 L. J., P. C, 11; 31 W. R., 304; 28 L. T., 377; 9 Moore, P. C. C. (N. S.), 318 334, 890, 391, 533 Law V. Harwood, Sir W. Jones; 196; Palta., 539; Ci-O; Car., 140 306, 314 Lawless v. Anglo-Egyptian Cotton and Oil Co., L. R, 4 Q. B., 362 ; 10 B. & S., 326; 88 L. J., Q'. B:, 139; 17 W. R., 498 - 333, 343, 346, 538 Lay V. Lawson, 4 Ad. & E., 795 - - - 343, 509, 664 Lee V. Huson, Peafce, 323 - .... ... 335 LeFauu v. Malcolmson, 1 H. L. C, 637; 8 Ir. L. R., 418; 18 L. T. (O. S.), 61 359, 261, 372, 874, 864 Lefroy V. Burnside (No. 1), 4L.R, Ir., 840; 41 L. T; 109'; 14Cox,C.C:, 260 - . - 568, 571, 655 Lefroy v. Burnside(No. 3), 4 L. R., Ir., 556 578 Leicester (Earl of) v. Walton, 2 Camp. N. P. R., 251 - - - 875, 890 Lentner v. Meraeld (C. A.), Times, May 6, 1880 494 Levet's Case, Cro. Eliz., 389 -- . .•'. . . . 173^ 36H Levi V. Milne, 4 Bing., 195; 13 Moore, 418 ..... 263', 271 Levy V. Lawson, E., B. & E., 560; 27 L. J., Q. B., 283 - - 548 Lewes v. Walter, 8 Bulstr., 235; Ore. Jac, 406, 413; Roll. Rep., 444 - 101, 263 Lewis v. Clement, 3 B. & Aid., 702; 3 Br. & B., 297; 7 Moore, 200 - 653 Lewis V. Coke, Cro. Jac, 424 - - . - . . . 356 Levis V. Levy, E., B. & E., 537; 27 L. J., Q. B., 383; 4 Jur. (N. S.), 970 460, ^ . ,„ , „ 544, 555, 558. 579 Lewis V. Walter, 4 B. & Aid., 605 - - . . 354, 523, 557, 581 Ley croft v. Dunker, Cro. Oar., 317 - - - . .... 195 Leyman v. Latimer and others, 3 Ex. D., 15, 352; 46 L. J., Ex., 765; 47 L. J., Ex. 470; 35 W. R., 751 ; 36 W. R., 805; 37 L T., 360, 819 59, 1 10, Lightbody v. Gordon, 9 Scotch Sessions Cases, 4th Serips, 934 - 500 502 Lister V. Ferryman L. R., 4 H. L., 531 ; 39 L. J., Ex., 177 ; 33 L. T., 269 ' 485 Little V. Pomeroy, Ir. R., 7 O. L, 50 . . . 44G Littler V. Thompson, 2 Beav., 129 ... - - 58L London V. Eastgate, 2Rolle'8Rep., 73 - - . . 109 Long V. Chubb, 5 C. & P., 55 . . .74 Lovett V. Weller, 1 Roll. R., 409 - - - . - - - 216 Lowe V. Harewood, Sir W. Jones, 196; Cro. Car., 140 - . - - 209 ENGLISH CASES. LxXXV Loyd V. Pearse, Cro. Jaa, 424 -----.-.. ggr; Lucan (Earl of) v. Smith, 1 H. & N., 481; 26 L. J.. Exch., 94; 3 Jur. T ^i i'^o "oiR Prudential Assurance Ca v. Knott, 33 W. R., 249; L. R., 10 Ch., 143 - |46^ Plidsey Coal Gas Co. v. Corporation of Bradford, L. R., 15 Eq., 167; 42L. J., Ch.,293;31W. R.. 286 "„ -^- ". 'j % f.' ^^^ Parcell V. Sowler, 1 C. P. D., 781 ; (C. A.) 2 C P. D 215 ; 46 L. J.. C. P.. 308; 25 W. E., 362; 36 L. T.. 416; 41 J. P.. ^^^.^I^i^ll^^ll^^il, Purdy V. Stacey, 5 Burr., 2698 - - - - - 180 Quartz Hill, etc., Co. v. Beall (C. A.), 30 Ch. D., 501 ; 51 L. J., Ch., 874; SOW. R., 583: 46L. T., 746 - - - . - - - 5^» Q«in 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. Lamley, Hutt., 113 - - - ■ " " ^Ifl' '«» Eamsdale V. Greenacre, 1 F. &F., 61 „oooq Raven v. Stephens & Sons, 3 Times L. R., 67 - - - - 73, 288 EavenhiU v. Upcott, 3S J. P., 299 - - - - - - " - 315 Rawlings et ux. v. Nor bury, 1 F. & F., 341 279, 299 Read V. Ambridge, 6 C. & P., 308 - 3115 Eead'sCase.Cto. Eliz., 645 - 2^^' ?5s Redfernv.Todel, Cro. Eliz., 589 ,„« i!S Redman v. Pyne, 1 Mod., 19 173. 1°2 Eedstonv. Eliot, Cro. Eliz., 638; 1 Roll. Abr., 49 256 Eeeve V. Holgate, 2 Lev., 62 - - - ... 101,197 Eeginald'sCase, Cro. Car.,563 173,197 Eevis V. Smith, 18 C. B., 136; 25 L. J., C. P., 195; 2 Jur. (N. S.), 614 432, 435, 4*1, 460. 465, 470 R. V. Abingdon (Lord), 1 Esp., 226 - - 237, 239, 347, 423, 537, 543 R. V. Aickles, 1 Beach, 330 - - - - - - - 761 E. V. Almon, 5 Burr., 2686 238, 240, 381, 764 R. V. Amphlit, 4B. &C., 35; 6D. &E., 125 - - - - 232 R. V. Annet, 3 Burn. Ec. L., 386 (9th ed.); 1 Wm. Bl., 395 - - - 956 E. 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 - - - - 627 E. V. Beere, 12 Mod.. 219; Holt, 422; Carth..409; 2 Salk., 417; 1 Ld. Eaym., 414 - - - - - - 333, 757 R. V. Boucher, 1 F. & F., 486 761 R. V. BradlanghandBesant, 3Q. B. D.. 569; 46L. J., M. C, 286 - 383 E. V. Brooke, 7 Cox, C. C, 251 - - ... .971 R. V. Brown (Dr.), 11 Mod., 86; Holt, 425 » - ... 286,300 E. V. Burdett, 4 B. & Aid., 95, 314 - 339, 767, 894, 948 R. V. Burks, 7T. E.,4 ... .... 974 E. V. Carden, 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 E. V. Carlile, Eichard, 3 B. & Aid., 161 ; 1 Chit., 451 - - - 961 R. V. Carlile, Eiohard, 4C. &P.,415 368,943 E. V. Cherry, 1 Leach. 236 115 R. V. Clement, 4 B. & Aid.. 218; 11 Price, 69 549 R. V. Clendon (1712). cited 2 Str., 789 .945 R. V. Clerk, 1 Barnard., 304 263 R. V. Coghlan, 4 F. & F., 316 284 R. V, Cooper, 8 Q. B., 533; 15 L. J., Q. B., 206; 1 Cox, C. C, 266; 10 J. P., 631 - - - - T - . . - 60, 246, 381, 935 R. V. Creevey, 1 M. & S., 273 - - . - - 347, 423, 537, 549 E. V. Cruseet ux., 3 Moo. C. C, 53; 8C. &P.. 541 - - - - 368 E. v. Crury, 1 M. & S., 280 - - 39. R. V. Curl, 2 Str., 788; 1 Barnard., 29 - 942 R. V. Cuthell, 87 Howell's St. Tr., 643 764 R. V. Darby, 3Mod., 139; Comb., 65; Carth., 14 177 ENGLISH CASES. Ixxxix R V. Dodd, 3 Sess. Cas., 33 oao 001 R V. Dover, 3 Harg. St. Tr., 457: 6 Howell's St Tr., 547 -" ~ 243 R V. Drake, 3 L. J., Q. B., 304 . . 04? • ^' ■^^.^^^l^^®' ^ ^- * ^•' ^^^= ^^ ^- J- ^- C- 50; 17 Jur., 546; Dears. C. C.,64---- .-.. .. 942 R V. Edgar, 3 Sess. Cas., 39; 5 Bac. Abr., 199 304 R V. Elwall, Gloucester Summer Assizes, 1736 958 R V. Fai-re, 1 Keb., 639 - - - - .... jgo R. V. Fisher and others, 3 Camp., 563 ....... 557 R V. Fleet, 1 B. & Aid., 379 - 557 ' R V. Flowers, 44 J. P., 377 ... 569 R V. Foote, Ramsay and Kemp, Times, March 3 and 6, 1883 - - 959 R V. Francis, L. R, 3 C. C. R. 138; 43 L. J., M. C, 97; 33 W. R, 663- 337 R. V. Garret, Sir Baptist Hicks' Case. Hob., 215; Popham, 139 - - 386 R. V. Gathercole, 3 Lewin, C. C, 337 - ... 266 267 R V. Gray, 10 Cox, C. C, 184 ' 546 R V. Andrew, 86 J. P., 663 - 554, fi7i E. V. Gutch, Fisher and Alexander, Moo. & Malk., 443 838, 840, 381,' 765 R V. Hetherington, 5 Jur.. 539: 5 J. P., 496 - - - . 944 E. V. Hickliu, L. R, 3 Q. B., 360; 37 L. J., M. C, 89; 16 W. R, 801; 18 L. T., 395; 11 Cox, C. C, 19 . - - . ■ 548, 943, 944 R V. Higgms, 3 East, 5 31, 969 R V. Holbrook, 3 Q. B. D., 60; 47 L. J., Q. B., 35; 36 W. R, 144; 37 L. T.,530; ISOox, C. C, 650; 41J. P.,773 . . . 380,381,383 R V. Holyoake, Gloucester Assizes, 1843 .... 9,157 R V. Hone, Wm., 1817 939 R V. Holt, 5 T. R., 436 - . - . - . . . 379, 299 R V. Hornbrook, Selwyn's N. P., 13th ed., p. 1065; 13th ed., p. 1000 971 R V. Home, 11 St. Tr., 864; Cowp., 673; Howell's St. Tr., 651 303, 619, 637 R. V. Hive, Dig. L. L., 83 . . - 958 R V. Ingram, 1 Salk., 384 368 R. V. Jellyman, SCar. &P., 604 - - 148 R V. Johnson, Hon. Robt., 6 East, 583; 3 Smith, 691 ; 39 How. St. Tr., 103 . - - - .... 766 R V. Kiernan, 7Cox, C. C, 6; 5Ir. C. L. R., 171 428 E. V. Kinnersley, 1 Wm. Bl., 394 - - 968 R V. KneU, 1 Barnard., 305 379, 738 R V. Laboucbere (Lambri's Case), 14 Cox, C. C, 419 - . 379, 300, 663 R V. Lambert and Perry, 2 Camp., 398; 31 How. St. Tr., 340 - 306 R V. Langlev, 2 Lord Raymond, 1089 ; 3 Salk. , 697 ; fi Mo(?„ 125 ; Holt, 654 ." - - - - .24 E. V. Ledger, Times, Jan. 14, 1880 590 R V. Leng, 34 J. P., 309 60 R V. Llanfaethly, 2 E. & B., 940; 33 L. J., M. C, 33; 17 Jur., 1123 - 761 R V. Lovett, 9 C. & P., 463 . 346, 737 R. v. McKenney, Jebbs' Case, 99 138 E. v. Matthews, 15 How. St. Tr., 1333 637 E. v. Moore, SB. & Ad., 188 - 930 R V. Newman, 1 El. & Bl., 363, 558; 33 L. J., Q. B., 156; Dears. G. C, 85; 17 Jur., 617 893 R V. Nutt(Eliz.), 1 Barnard., 306; Fitzg., 47 764 R V. Osborn, 3BaHiard., 188, 166; Kel., 330 Oe") R V. Paine, Garth., 405 238 R V.Perry, 15 Cox, C. C, 169 413,481,493 R V. Petcherini, 7Cox, C. C.,79 953,957 R V. Philipps, 6 East, 464 - 31 R V. Pooley (Bodmin, 1857), Digest of Grim. Law, 97 - - - 959 R V. Ramsey and Foote, 48 L. T., 783; 15 Cox, C. G, 231 ; 1 C. & E., 136 - - 946, 955 R V. Reeves, Peake's Add. Gas., 84; 36 How. St. Tr., 530 - - - 391 R V. Ripsal, 1 Black. Rep., 368 25 R V. Rosenberg, Times, Oct. 37 and 38, 1879 ... - 59 R V. Rosenstein, 2 G. & P., 414 760, 944 B. V. Salisburv, 1 Ld. Raym., 341 460 &. V. Saunders, Sir T. Raym., 201 59 XO TABLE OF CASES CITED. R. V. Scofleld, Caklecott, 397 J2? E. V. Sharman, 6 Cox. C. C, 313 - " " ]*i R. V. Skinner. Lofft, 55 419,434,439,446 R. V. Slaney, 5 0. &P., 813 ' " '^°- E. V. Southerton, 6 East, 126 ^°^ R. V. Stuart, 3 Chit. Crim. L., 887 - tl% R. V. Sullivan, 11 Cox. C. C, 44 - 291, 5«U R. V. Tanfield, 43 J. P., 433 - ■ - ■, "<.-"oo«" qaq R. V. Taylor, 1 Ventr., 393; 3 Keb., 607 ; Tremayne's Entries, 336 949 R. V. Thurborn, 1 Ven., 387 - - - - - ; " "* R. V. Topbam, 4 T. R., 126 - - ,„ " " ,nV®o^®.' R. V. Tutchin (1704), 5 St. Tr., .537; 14 Howell's St. Tr., 109o; 3 Ld. Raym., 1061; 1 Salk., 50; 6 Mod., 368; Holt, 434 - - 637 R V Veley 4F. &F., 1117 523,584 Rv.'Waddington(1833), IB. &C., 26 944,958,961 R. V, Walsh, 1 Moo., 14 - If R. V. Walter, 3 Esp., 21 .... . - - 343, 764 R. V. Watson (1808), 1 Camp., 215 ^^% R. V.Watson, James (1817), 2 Stark., 116 - - - „.„ " J^^O R. V. Weeener. 2 Stark.. 245 - -.,-,-.„.- ^ / „„" Jl^' ^^^' ^^^ R. V. Wilkes, 4 Burr., 3.527, 2568; 2 Wils., 151; Dig. L. L., 69; 19 How St Tr 1075 ..------- o7, 943, 957 E. V. Williams (Sir William), 3 Shower, 471; Comb., 18; 13 How. St. Tr , 1370 -- - ... -- 421 R. V. Wilson, 3 Moo. C. C, 52 106, 256 R. V.' Woolston, 3 Str., 834; Fitzgib., 64; 1 Barnard., 163 - - 958 R V. Wright, 8 T. R., 393 543 R. V. Yatis, 11 Q. B. D., 750; 53 L. J., Q. B., 778; 48 J. P.. 102; 15 Cox, C. C, 373 - - 284 Rice V. Pidgeon, Comb., 161 197 Richards v. Richards, 2 M, & Rob., 557 353, 516, 518 Richards v. Rose, 9 Ex., 219 935 Richardson v. Allen, 2 Chitt, 657 103, 106, 352, 854 Riddle v. Clydesdale Horse Society, 12 Court of Session Cases (4th Series), 976 ... 5.53 Ridges V. Mills, Cro. Jac, 666 146 Riding v. Smith, 1 Ex. D., 91; 45 L. J., Ex., 381; 24 W. R., 487; 34 LTT., 500 165, 173, 174, 365, 375, 379, 874 Rily V. Lewis, 1 Vin. Abr., 396 .-..--- 165, 874 Risk Allah Bey v. Johnstone, 18 L. T., 630 - - 559, 581, 873, 882, 909 Roach V. Garvan, Re Read & Huggonson, 2 Atk., 469 ; 3 Dick., 794 356, 363 Robbins v. Crafts, Cro. Eliz., 857 39 Roberts v. Brown, 10 Bing., 519; 4 M. & Scott, 407; 6 C. & P., 757 557, 581 Roberts v. Camden, 9 East, 93 101, 135, 265, 304 Roberts v. Herbert, Sid., 97; S. C. sub nom. Cans v. Roberts, 1 Keb., 418 - - - 31, 165, 878 Roberts v. Richards, 3 P. &F., 507 501 Eobertsandwife V. Eoberts, 5B. &S.,384; 33L. J., Q. B., 349; lOJur. (N. S.), 1037; 13 W. R., 909; 10 L. T., 603 - 164, 165, 784, 862, 874 Robertson v. M'DougaU, 4 Bing., 670; 1 M. & P., 692; 3 C. & P., 259 - 830, 342, 416 Robertson V. Wylde, 8 M. & Rob., 101 878 Robinson V. Jones, 4 L. R., Ir., 391- - - - 60,233,334,843,343 Robinson v. Marchant, 7 Q. B., 918; 15 L. J., Q. B., 134; 10 Jur., 156 - 194, 373, 874 Robinson v. May, 2 Smith, 3 505 Robinson's Case, 1 Brown, 643 -----.-.. 945 Robshaw v. Smith, 38 L. T., 433 - - - - - 410, 494, 495 Rogers v. Clifton (Sir Gervas), 3 B. & P., 587 - - 328, 839, 893, 771, 931 Eogersv. Gravat, Cro, Eliz.. 571 80 EoUins V. Hinks, L. E., 13 Eq., 355; 48 L. J., Oh., 358; 20 W. E., 387; 26 L. T., 56 226 Eosev. Groves, 5 M. & Gr., 618 864 Eowclifiee V. Edmonds et ux., 7 M & W., 13 j 4 Jur., 684 - - - 148 ENGLISH CASES. Xci Ruel V. Tatnell, 29 W. R., 173; 43 L. T.. 507; 45 J. P., 175 - 197. 281, 284, Eumsey v. Webb et ux.. Car. & M., 104; 11 L. J., C. P., 129 172. 48"4! Eussell V. Webster, 33 W. R., 59 - - . . '^^h^^l' t^l E..h„,„J J^^™. 6 B..,., „„ 8 L. X ,a S... C. P., «, 4 «■ "-','1 j„irs;,'»iv i.%- rife"- * "■,■ -J "^ '"^° ■■!": Z Salmon v. Isaac, 20 L. T.. 885 - - . . ooq i^i^o kkb noo Salomons V. Knight, L. R, 3 C. H.. 394 . - . . ^f'^^^'^^^Il Salter v. Browne, Cro. Car., 436; 1 Roll. Abr., 37 . . Ififi s?? Sands v. Child, 3 Lev., 3o3 - - - . ^^^' Slf Sandwell v. Sandwell, Holt's R.. 295 - . . ^L^ ciaram (Bishop of) v. Nash, B. N. P., 9; Willes, 23 - - - . las Saunders v. Edwards. 1 Sid.. 95; 1 Kpble, 389: Sir T. Raym 61 - 273 Saunders V. Mills, 3 M. & P., 520; 6 Bing., 213 - - 1 . 24124^ Savagev. Robery, 5Mod., 398; 3Salk.,694 - - - - 106 197 'SM Savile V. Jardine, 3H. Bl., 531 106' 197* 854 Savile et ux. v. Sweeney, 1 N. & M.. 354; 4 B. & Ad., 514 - - ' 16ri,' 365 Saxbyv. Easterbrook, 3C. P. D.. 339; 37W. R.,188 - - - 246f> 556 Sayer v. Begg, 15 Ir. G. L. R., 458 ' 518 Scarllv. Dixon,^4F. &F., 350 - .- 335,413,415,483,505,508,531 Scot et ux. V. Hilliar, Lane, 98; 1 Vin. Abr.. 440 - - - - 134 3r)0 Scott V. Sampson, 8 Q. B. D., 491; 51 L. J., Q. B., 380; 30 W. R.. ' 541; 46 L.T.. 413; 46 J. P.. 408 - - - - . . 897 Scott V. Stansfleld, L. R., 3 Ex., 320; 37 L. J., Ex., 155; 16 W. R.. 911; 18L. T.,572 - - ... . 1 419 Seaman v. Bigg, Cro. Car., 480 173 Seaman v. Netherclift, 1 C. P. D., 540; 45 L. J., C. P., 798; 34 W R. 884; 34 L. T., 878; 41 J. P.. 389 101, 419, 433, 438, 435, 437, 442, 449, «,.T., .„„ 459,465,731 Seaman v. Allen, 2 Wils., 160 -----.... 910 beeley v. Fisher, 11 SinL. 581 -.--... 246, 2466 Senior v. Medland, 4 Jur. (N. S.). 1039 ..... 533 532 SeUers v. TiU, 4 B. & C, 655 - - - - - - - - 753 Seymour v. Butterworth, 3 F. & F., 373 - - 573, 574, 577. 578, 840 Shackell v. Rosier, 3 Bing., 334: 39 Com. L., 438 - - - 239, 341 Shepheard v. Whitaker, L. R., 10 C. P., 503; 33 L. T., 403 - 75, 233, 379 Shepherd v. Trustees, Ind. L. R., 1 Bomb., 132 .... 346, 346& Shepherd v. Wakeman, 1 Sid., 79 ----- - 39 Sheppard v. Lloyd, Daily Chronicle, March 11, 1883 ... 533 Sherwin v. Swindall, 12 M. & W., 783 - - - - - - 315 Shipley v. Todhunter, 7 C. & P., 680 - 233, 235, 375, 305, 340, 390, 528, 757 Shire v. King, Yelv., 32 ... 185 Shore V. Wilson, 9 Clark & Fin., 355 946,958 Sibley v. Tomlins, 4 Tyrw.^ 90 174, 197, 276, 296 Sibthorpe'6 Case (Dr.), W. Jones, 306; Roll. Abr., 76 - - - - 188 Sidnam v. Mayo, 1 Roll. Rep., 437; 1 Roll. Abr., 49; Cro. Jac, 407 - lOi, 113, 365 Simmonds v. Dunne, Ir. R., 5 C. L., 358 477 Simmons v. Mitchell, 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, 13 Q. B., 511; 18 L. J., Q. B., 73; 13 Jur,, 187 - 847, 777, 787, 883, 923 Slater v. Franks, Hob., 136 279, 300 Slowman v, Dutton, 10 Bing., 403 373 Smale v. Hammon, 1 Buls., 45------- 94 Smith V. Andrews, 1 Roll. Abr., 54; Hob., 117 185 Smith V. Cooker, Cro. Car., 513 - - 300 Smith V. Flynt, Cro. Jac, 300 30 Smith V. Harrison, 1 F. & F., 565 787, 883, 908 Smith V. Hodgeskins, Cro. Car., 276 - - - - 840, 415, 504, 777 Smith v. Matthews, 1 M. & Rob,, 151 515,519 Xcii 'TABLE OF CASES CITED. Smith V. Parker, 13 M. & W., 459; 14 L. J., Ex., 50; 3 D. & L., C34 G63, 797 Smith V. Eichardson, V/illes, 30 - - - 'i"' Smith V. Scott. 3 C. & K, 580 - 901207 271 Smith V. Spooner, 3 Taunt., 346 - ?^s' 755 7S6 Smith V. Taylor, 1 B. & P. N. R., 196 -„-„". " " ^|4. i Smith V. Thomas, 2 Scott, 546; 4 Dowl., 333; 3 Bing. N. C, 372; 1 ^^^ Smit^t^Ward?Cro.'jac.,674- - -" - - - - »53. 276, S90 Smith V. Wood, 3 Camj}., 333 n'q o-K pqr Snagv. Gee, 4Eep., 16 ^ - - ' ' mt Snagv. Gray, 1 Boll. Abr., 57; Co. Entr.,22 - - - - l«b Snead v. Bodley, Cro. Jac, 397 - - - " " '°Y, Snellv. Webling, 3Lev.. 150; 1 Ventr., 276 - - - - £b6 Sloane V. Knight, Moo. & Mai., 74 - - ■ " " ' |°» Solomon v. Lawson, 8, Q. B., 833; 15 L, J., Q. B., 353; 10 Jur., 796 ^-^ 75^ Solomons V. Medex, 1 Stark., 191 - - - - - 373 Somersv. House, Holt, 39; Skill., 364 ■ -„--,,- ^ -' ''"*' Somerville v. Hawkins, 10 C. B., 583; 20 L. J., C P., 131 ; 15 Jur 450; 16 L T (O S.), 283 - - 324, 390, 491, 493, 513, 788, 633 Southamv:Allen,'sirT.Eaym.,331 - - - 105,410,495,497 Soutliee V. Denny, 1 Ex., 196; 17 L. J., Ex., 151 189, 191 Spackman t. Gibney, Bristol Spring Assizes, 1878 415, 507 Sparling v. Haddon, 9 Bing., 11 : 2 Moo. & Sc, 14 - - - 753 Speckv Phillips, 5M. &W., 379; 8L. J.,Ex., 277; 7Dowl.,470 ■ 897 Spencer V. Amerton, 1 M. & Eob., 470 - .... 527,535 Spill V. Maule, L. R., 4 Ex., 232; 38 L. J., Ex., 138; 17 W. E, 805; 20 L. T., 675 ... - - - 324, 340, 344, 392, '537 Springhead Spinning Co. v. Riley, L. R., 6 Eq., 551 ; 37 L. J., Ch., 889; 16W. E..1138 - ... - . 375,379 Squire V. Joljns, Ore. Jac, 585 ... . - . . 267 Stace V. Griffith, L. R. , 2 P. C. , 430 ; 6 Moore, P. C. C. • Perry and Davison Popham's Reports Price's Reports Adolphus and Ellis ) (New Series) j Raymond (Lord) ■Rolle's Abridgment Ryan and Moody Scott's New Reports .... CotTET. House of Lds. Exch K. B K. B Chancery . . . K. B Crown Cases, Period OF TIME compre- hended. 1831-1846 1856-1861 160:^-1625 1688-1711. Eanv date 1820. 1860-1862 l(j61-167» 1861-1865 See Note to Comparative Table of Law Reports. K. B K. B C. P Nisi Prius . Starkie's Reports . W. N [ W. B.,or"W. I Rep S Wms.Saund^ Strange's Reports Tyrwhitt and Granger. . . Term Reports (Durn- ) ford and East) J Taunton's Reports Ventris' Reports "Weekly Notes \ Weekly Reporter -j Sir E. V. Williams' Notes to Saunders' Reports (1642-1678). . . 2 6 16 12 4 1 13 18 3 2 1 8 2, and vol. iii, pt. 1. 2 1 Nisi Prius . . K. B Exch K. B Nisi Prius . Q. B K. B Exch 1660-1697 1772-1774 1840-1H44 1827-1830 1831-1844 1813-1817 1836-1847 1669-1732 1831-1814 1838-1841 1F,92-1627 1814-1824 1841-1852 1694^1734 1614-1625 isa3-l8i6 1840-1845 1815-1822 1726-1742 1836 1785-1800 8 C. P 1808-1819 .1 .K. B 16b8-l691 Published weekly with the Law Reports. See the Comparative Table of Law Reports. K. B K. B Nisi Prius . . C. P [Nisi K. B Exch. K. B. Prius . K. B. 1871 TABLE OF O0EEENT ENGLISH EEPOETS. X.C1X CD wo ■ Is IP sis £:g-a ffiS of ■ sS li H-B ^? CD 2. p p So. am ii 5-^ I s II-PS^ 2 sr„ ^ OT -^Ci a JS i&l u g •^ >Ti to >i £ Pf. CO t^S. M 1 tCk. * OOrt-OD 0» Vf -^ OS OOc+00 O^O 03 00 -q O CD CO ts ??? §^§ «i Kg-S C9 00 ss? C tS. CD 5; >-:• m § § o ►a ^ O" ■R S a C, tr »-*> ^ S 2. S' ? 2 "> B 0) Si tl^ ft i-b g ^^ p «■ o ■* ? B s, a p> CO O C Ml ^ CO g" I v 1 1 ffi a B- f -^ a g^ » ^ •^ !f g" i^Sg:' o o ID t> pi t> 1— I <1 tei 1^ t> W t-i tel o cl pi Pi tei fe| 1^ I— I CO m O pi CO THE LAW OF DEFAMATION. CHAPTEE I. A BRIEF HISTORICAL REVIEW OF THE LAW OF DEFAMATION.^' ANCIENT LAWS. § 1. The Mosaic Laws. 3. The Laws of Ancient Egypt 3. The Laws of the Athenians. 4. The Roman 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 Libelere, 10. The Institutes of Justinian. 11. The Edict of Valentinian and Valens. 12. 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 Year Books. 18. The Statute of Westminster. 19. The Statutes of Richard. 20. Libels of the Star Chamber. 21. Justices of the Peace. 23. The Eights of Personal Property Include those of Repu- tation. 23, Concluding Remarks. AMERICAN LAW OP DEFAMATION. 84. 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 BEIEF HISTOEICAL REVIEW and morals will undoubtedly be of some assistance in an ex- amination of the present state of the 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 despitefuUy speak against the righteous.* What man is he that lusteth to live and would fain see good days; keep thy tongue from evil and 1 Psalm 5. 'Psalm 14. 2 Psalm 10. < Psalm 31. OF THE LA.W OF DEFAMATION. 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 on thee! fie on thee! we saw it with our e^-es.' My lovers and my neighbors did stand looking upon ray trouble and my kinsmen stood afar off; they also that sought after mj' life laid snares for me, and the}'^ that went about to do me evil, talked of wickedness aad imagined mischief all the day long.' Thy 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, God ! behold they speak with their month, 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 was 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 mere 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 he received no punishment whatever; for the exoeptio veritatis then operated in full force.' 1 Psalm 34. 'Psalm 59. 2 Psalm 35. * Exodus, 23: 1. 'Pgalm 38. 'Michaelis' Comm. on the Laws of « Psalm 53.' Moses, art. 381, sec. 2 (Smith's trans- s Psalm 58, lation). 6 Psalm 59. 4 A BRIEF HISTORICAL REVIEW 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, which, 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 laws 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 suflScient 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.* • iDeut., 33: 13, 19. ' RoUin's Histoire des Egyptiens, 73. 2 Diod. Sic, B. 1. 41 starkie on Slander, VU. 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. In 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. Isocrates, in Lochitein, 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 country. 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 language. 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 > Epltaphius of Pericles, 3d lib. 2 1 Pet. Leg. Atticse, 535. Xhuc. ' Holt on Libel, 15. 6 A BRIEF HISTORICAL REVIEW 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 onlv the reducing to writing of what had been before matters of usage. The object in view 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 Livy'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 maliciouis 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 would 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 Rome, 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 Romans 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 DEFAMATION. 7 pealed, but the humanity of the age stopped the mouth of the accusers. The Valerian law took from the magistrates the power of inflicting death or any corporal punishment upon a free citizen; the laivs of the Decemviri were thus indirectly repealed. It was to this early time of the republic that we may refer what Livy says of the Romans, 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 formidine fustis, 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 whole of his reign, subjected satirical writers, in cases of pri- vate calumny, to the same punishments as for offenses against the laws leescB majestatis. 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 Imsm majesta- tis to declaim against any public officers.^ In the early ages of the republic the laws Icescb 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 Roman people, were the objects of this law. These were acts, and acts were 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 BRIEF 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, "Eumqui nocentem infamavit, non esse bonum aequum ob eam rem condemnari, peccata enim nocentium nota et opertere et expedire." He adds, "Nulla scilicet est conturaelia quae fit dignis." But if the charge at the time 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 Home, 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 Coke into 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 ovvn, 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 > Holt on Libel, 31. OF THE LAW OF DEFAMATION. ^ include the rescripts of Yalens, Yalentius and Yalentian. The first is as follows : J''irst Constitution: "Si quando famosi libelli reperiantur, nullas exinde calumnias, patiantur ii, quorum de factis vel nominibus aliquid continebunt, sed scriptoris auctor potius re- periatur, et, repertus, cum omni vi^ore 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 tjje 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 oflBcers 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 suffer them to disperse anony- mous defamation. Second Constitution: Constahtini Seotjnda 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, soluraque moneas, ut ab omni non solum crimine, sed etiam verisimili alieni esse festinent. — Nam qui accusandi fiduciam gerit, opor- tet comprobare, neo occultare quae sciverit, quoniam predica- bilis erit ad dictationem publioam merito perventurus." Translation: Second Decree of Const antine. — Although copies of libels which have circulated in Africa are preserved in your 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 by the translation that this constitution re- fers to. libels already in the possession of his proconsul or his 10 A BEIEP HISTOBIOAL EBVIEW 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: Constitutio Teetia ad jANUEitiM.— " Ut accusatoribus patientia pr^benda est si quem in Judicio persequi volunt, ita famosis libellis fides habenda non est, nee super his ad nostram scieatiam referendara cum eosdem libel- los flammis protinus conducat aboleri, quorum auctor nullus existit." Translation: ThiedDeceee 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 quae nomine accusatoris caret, minime exami- nanda est, sed penitus abolenda; nam qui accusationis promo- tione confidat, libera potius intentione, quam captiosa atque occulta conscriptions, 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 charge 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, coneussa his machinis va- cillabit; nam omnes hujusmodi libellos concremari decernimus." Translation: Fifth Deceee, to the Afeicans. — 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 knowledo-e 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 LAW OF DEFAMATION. 11 Sixth Constitution, to the People: Constitutio Sexta, ad Toy- DLtjM.— " Nemo prorsus de famosis libellis, qui neque apud me, neque in judicio, uUum obtinent locum, calumniam pati- atur. Nam et innocens creditur cui defuit accusator, cum non defuerit inimicus." Translation: Sixth Deckee, 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 which 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 op^n 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 famosura libeilum, sive domi, sive in publico, vel in ^uocunque loco, ignarus offenderit, aut discerpat priusquam alter inveniat, aut nuUi confitetur inventum; nemini denique, si tarn curiosus sit, referat, quid legendo cognoverit. Nam quicunque obtulerit inventum, certum est ipsura 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, be shall either tear it to pieces before another 12 A BEIEF HISTOKICAL REVIEW 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 containe4 in the Theodosian 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 Roman 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 by an ostentatious zeal in accus- ing the most eminent characters in Eome. The punishment of the delatores of Kero, 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 Slander's: 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 Oonstitutio de Malediotis in Principem, Ejusqtje Tempoea Jagtatis. — "Si quis modestiae nescius, et pudoris ignarus, improdo, petulantique maledicto, nomina nostra credi- jderit lacessenda, ac teraulentia turbulentus obtrectator tem- porum fuerit, eum poen^ 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." Translation: Degree of Theodosius Concerning Slanders Uttered against a Eulbe and His Times. — If anybody, un- acquainted with modesty and ignorant of shame, by false and iHolt on Libel, 25. 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 Punishment 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 b\' 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 caesus, 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- riam — 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 esse dicetur: 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 goods of a man, as if he were a debtor, when the person who 1 Holt on Libel, 23. 14 A BKIEF HISTOEICAL REVIEW 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 Talentinian and Talens.— In his collection of the Roman laws, the most perfect form which the civil law assumed, the constitutions of Constantine de famosis Uhellis were severed from the corpus juris civilis. But in the 9th book of the code, title 36, the following edict of the emperors Yalentinian 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 oonfiteatur inventum. Si vero non statim easdem chartulas corruperit, vel igne consumpserit, sed earum vim manifestaverit, Sciat se, quod auotorem hujusmodi delicti capital! sententise subjugandum. Sane, si quis devotionis suae, ac salutis publicse custodian gerat, nomen suum profiteatur, et quae per famosum libellum persequenda putaverit, ore proprio edicat, ita ut absque ulla trepidatione accedat, sciens quidem 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 pbtain the greatest praise and reward from 1 Justinian Inst., lib. IV, tit. 4; Cooper's Justinian, 319. OF THE LA.W OF DEFAMATION. Ift our clemency; but if he shall conceal the truth in the least re- spect, he shall be punished by death. The term famosis libellis 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, which 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 injuria. 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, vitaeque honestatem, crescit aut minuitur sestimatio injuriae." * §12. The Difficulties of the Civil Law.— There is great difficulty in examining any branch of the civil law. Notwith- 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 which all the species must be individuals. Hence, the voluminous code of our own laws and of every free ' state. The Eoman lawyers, endeavoring at the same perfec- tion, and having greater obstacles to. encounter in the uncir- 1 Holt on Libel, 27. i* Just. Inst., lib. IV, tit. 4. 16 A BEIEF HISTOKICAL BEVIEW cumscribed 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. TheKomanlawof Libel.— In Koman 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., lY, 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 Caesar seems to have engrafted upon the laws Imsm 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 Eo- mans. During the reign of the latter emperors libelers were 1 Holt on Libel, 26. ^Odgers on L. & S., 14. OF THE LAW 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 Icesa majestatis. Under Doraitian they were hunted down; but they revived under Nerva and the Antonines. Constantino pursued them with vigor, and under the mask of a war against libelers waged a persecution against a religious sect — the Donatists. Valens and Yalentinian 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 Roman 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 bona 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 oflB- 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; Myus 4, ^D., 47. 10, 3, 3 and 4. ODS. 4; Gail. 3, obs. 99; Covarr. 1, 3D., 47, 10, 15, 13. resol. 11, n. 6 and 7. * D-. 47, 10, 15, 39. % 18 A BEIEF HISTOEIOAL 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 office had expired.' The adversaries in litigation were of course 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 OF ENGLAND. § 14. Euins 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 Eoman 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 on the Eoman law, and perhaps the original energy of that code was in some degree restored by the vigor of the new ;stock. The Eoman law, as is well known, was at one time administered in England under the most celebrated of Eoman lawyers. It was one of the maxims of Eoman policy to admit the laws of all conquered nations, and to change only so much of the 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. Eesearches, 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- 1 Eescript to Victorinus, A. D. 390 ; 3 Mirror., 301 ; Selden on Law and Krueger's Codex, ed. 1877, p. 855. Gov., 5th ed., 60. "PauliSent. 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 injur}' 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 sestima- 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 diffamare 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. Under 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 iSInst., 220; Ventris, 293; Holt on '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. TOT., 301; Selden, Discourse on Law andGtov., 5th ed., 60, 20 A BRIEF HISTORICAL BEVIBW fuerit, verberatus, vulneratus, vel fustibus csesus, verum cum ei convitium dictum, fuerit, vel de eo factum carmen famosum, et hujusmodi."' 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 booli 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 Year Books.— There is not much to be found in the y&&v 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 IV. ; 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 Reports, volume 4, seventeen ad- judged cases on this subject.' The people of England in that age were a military people. The offices 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 1 Bracton, fol. 155. i March. Act for Sland., 4. * Hist, of Com. Law, vol. 1, p. 370. 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 Richard 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 Yillains, 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 officers 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." Thes3 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. XL, ch. 11, that, should he not be able to find such person, he should \ » Vide Black., vol. IV, 148, In notes; Holt on Libel, 35. 22 A BRIEF HISTORICAL REVIEW 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 Kecords 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 a^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 tarn pro domino 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 »Cott., fol. 173, num. 9, 10, and 3 Coke, 125; 12 Coke, 37; 7 Coke, 59; Mod., 181. Lamb's Case. "Atkyn's Just., 3 Mod., 163; 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. Libels of the Star Chamlber.— 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 tl^e 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. Nothing 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 officers 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 'Freem., 221; Poph., 67; Lord 2 Holt on Libel, 38. Kaym., 879; 4 Bac. Abridg., 408; "Coke's 4th Inst., 65, ch. 5. Bull, N. P., 2. 24 A BRIEF HISTOEICAL REVIEW 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 offende'rs seemed to require a tribunal of more than common dignit3^ 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 verhorum propalationibus? 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 » Holt on Libel, 40. » Qii een v. Langley , 3 Ld. Ray mond, 2 Coke's 3d Inst., 220. 1060 ; 13 Coke Reps., 18 ; 2d Inst., 228. 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 ofiBce of justice of the peace the law did not omit to give them charge over scandal and libel; and,' by 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 th6 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. 24, for the writ of casu eonsimili is founded upon this principle with respect to civil injuries prima impressionis. "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 tranquillity of the community, whatever is of evil example or contagious disorder, whatever is contra honos mores, civis, si nan 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 i34Edw. in..ch. 1. Lev., 139; 1 f ■' f '/™-' f ^ 2 2 Hawk. P. C, VOL 3, ch. 8, 60; 1 King v. Eipsal, 1 Black. Eep.. 3b8. 26 A BKIKF HISTORICAL JEEYIEW 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 ages, 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, thpir 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. Bat 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 from 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 an)' 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 do it ? — 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 ofiBce; 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 BRIEF HISTORICAL 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-book 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 ma'™'= (who 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 ofifence, 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 New Hampshire a provincial statute, enacted in lYOl, 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. « MerriJl's Newspaper Libel, 17. « Merrill'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. CHAPTER IL EARLY ENGLISH AUTHOEITIBa § 1. Early English Authorities. 2. 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 f uU of corn 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 oSense, 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., ch. 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; Odgers on L. & 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 cases such words as " She is a witch" were held action- able, the statutes 1 Jac. I., ch. 11, being then in force. But that statute is now repealed by the 9 Geo. II., ch. 5, sec. 3; which also expressly provides that no action shall lie for charging another with witchcraft, sorcery or any such oflfense. Rogers v. Gravat, Cro. Eliz., 571 ; Dacy v. Clinch, Sid., 53. 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, 2 Ventr., 265 ; Smith V. Flynt, Cro. Jac, 300. EARLY ENGLISH AUTHORITIES. 31 And so long as the 18 Eliz., ch. 3, was in force, it was actionable to charge 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 Eep., 17; 2 Salk., 694; 1 Roll. Abr., 38; Salter v. Browne, Cro. Car., 436; 1 Roll. Abr., 37. It was not apparently clear law till the present century (R. v. Higgins (1801), 2 East, 5; R. 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 difScult to prove. Oxford et ux. V. Cross (1599), 4 Eep., 18; Hassell v. Capcot (1639), 1 Vin. Abr., 395 ; 1 Roll. Abr., 36; Cook v. Wingfleld, 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., 880, n. ; Thayer v. Eastwick, 4 Burr., 2032; Brand and wife v, Roberts and wife, 4 Burr., 2418; Vicars v. Worth, 1 Str., 471; Odgers on L. & S„ 61. CHAPTER III. THE AMERICAN LAW OF DEFAMATION. § 1. Defamation Defined and Classifled — Written Defamation, Libel — Oral Defamation, Slander — But Different Methods of Accomplish- ing the Same Wrong. 3. Libel — Definitions — Discussion of the Subject. 8. Other Definitions — Addison, Bentham, Chief Justice Booth, Brit- ish Encyclopedia, Blatchford, X, Bouvier, Capel Loft, Sir Edward Coke, Justice Daniel, Alexander Hamilton, Sargeant Hawkins, Hillard, Holt on Libel, Lord C. J. Holt, Minshaei, 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, Eapalje and Lawrence's Law Dictionary, Brown, Burrill, Wharton, Tomlin. Slander Defined — The Commentators: Blackstone, Hillard, Kent — Conclusion. 5. Slanderous Words Classifled. 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. 3. 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. 3. 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 o£Qce or employment. 4. Defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade. 5. Defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party special damage. § 1. Defamation Defined and Classifled. — 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 AMERICAN LAW OF DEFAMATION. 33 (1) ZiM 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 it does contain such an imputation and has legally such a tendency ; but mere general abuse and iCooley on Torts, 1st ed., 193. SHillhouse v. Dunning, 6 Conn., 2 7 Conn., 267. See, also, Morey v. 407. Morning Journal, 9 L. R. A., 621 ; 123 * Colby v. Reynolds, 6 Vt., 489. N. Y., 207. 3 34 THE AMEEIOAN 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: "All publications injurious to private character or credit of another are libelous." * American Encyclopedia: "A libel is any published defama- tion." Beniham: "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." Blackford, J.: A publication, to be a libel, must tend to in- jure the plaintiff's reputation 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, spreflx to Report of Finnerty's 417. Trial. 2 Lay ton V. Harris, 3 Harrington, 'Armentroutv.Moranda.SBlackf., 406. 426. 3 Revised Statutes of Illinois of 'State v. Jeandell, 5 Harr. (Del.), 1887,411. 475; Morey v. Morning Journal, 9 L. < Addison on Wrongs, McNally v. R. A,, 631; 133 N. Y., 307. Oldham, 8 Law Times Rep., N. S., 604 THE AMEBIC A-N 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 oHe 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. Capel 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: Every 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, bi. libel, and implies malice in the publisher.' Alexander Hamilton: A libel is a censorious or ridiculing writing, picture f r sign made with a mischievous and mali- cious intent towards government, magistrates or individuals.* Hawhinh Pleas of the Grown: 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. well, 3 Johns. C, 354; Steele v. South- 25 Coke Reports, 135; 3 Barnewall wiok,9 Johns.,314; Cooper v. Greeley, & Ores., 33, 34 1 Den., 347. 'White V. Nichols, 3 How. (U. S.), 5 Hawkins' PI. Cr., 8th ed., 543; 2gg Morey v. Morning Journal, 9 L. E. A,, 631; 133N. Y., 307. 36 THE AMERICAN LAW OB' DEFAMATION. HilUard: 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 ol 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- sary 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.* Minshaei: 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 libel- lus? Chief Justice Parsons: A libel is a malicious publication, expressed either in printing or writing, or t^ 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.* Bussell on Crimes: A libel has been usually treated of as scandal, Avritten 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 mUiard on Torts, ch. vii, § 13. « Commonwealth v. Clapp, 4 Mass., 2 Holt on Libel, 313. 163, 168; Root v. King, 7 Cow., 613. aCropp V. Tilney, 3 Salk., 336. 'Russell's Treatise of Crimes and < Villars v. Mousley, 3 Wils., 403. Misdemeanors, ed. 1819, p. 308. s Minshssi, Guide into the Tongues, London, 1637. THE AMERICAN LAW OF DEFAMATION. G7 SeWs 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 office 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- pHes 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 Boumer's Lavi 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, 2 Humph., 513; Milton v. State, p. 72; Merrill's Newspaper Libel, 40. 3 Humph., 389. 2 Dexter v. Spear, 4 Mason, 115. « Johnson v. Stebbins, 5 Ind., 364; s Hill on Torts, 236 ; Add. on Torts, O'Brien v. Clement, 15 M. & W., 435. 777; White v. Nichols, 3 How. (U. M Am. Leading Cases, 138. S.), 266; Cramer v. Noonan, 4 Wis., ^Hillhouse v. Dunning, 6 Conn., 231; Lansing v. Carpenter, 9 Wis., 391. 640. 8 Greely v. Cooper, 1 Denio, 347. * Add. on Torts, 776 ; Dunn v. Win- 9 Chaddock v. Briggs, 1 3 Mass., 288. \ 38 THE AMERICAN LAW OF DEFAMATION. marriage or service, or ia his inheritance, or which occasion any particular damage. Yerhal slander may be considered with reference to (1) The nature of the aoousation; (2) The falsity of the charge; (3) The tnode of publication ; (4) The occasion', (5) The malice or mo- tive. Nature of the accusation. (1) Actionable words are of two descriptions: first, those actionable in themselves, \\rithout 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- gery," "murder," or the lilie; and although the imputation of guilt be general without stating the particulars of the pre- tended crime, it is actionable;* (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 capacitj?^, 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 drunliard.' 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; 2 Graves 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. Jansea, 3 Esp. R., 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. B., 366; 617; Aston v. Balgrave, 3 Ld. Bay- Morris V. Langdale, 2 New Reps., mond, 1369. 284; Andres v.Koppenheafer, 3 Serg. si Mallory's Modern Entries, 244; & Raw. (Penn.), 355; Walton v, Onslow v. Home, 3 Wils., 187; 0ns- Singleton, 7 Serg. & Baw. (Penn.), low v. Home, 2 Bl. Bep., 750; Mc- 449; McMillan v. Birch, 1 Binn., 178; Millan v. Birch, 1 Binn. (Penn.), 178. McClurg V. Boss, 5 Binn., 218 ; Brown V. 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 bf words in writing or by speaking, by reason of which the person to iSheperd v. Wakeman, 1 Sid., 79; 280; Harding v. Greening, 1 Holt R., Williams v. Linfords, 2 Leon., 111. 531; Hodgen v. Scarlett, 1 B. & A., 2 Com. Dig., Action on tbe Case for 233; Kean v. McLaughlin, 2 Serg, & Defamation, D., 30; Bac. Abr., Slan- Raw. (Penn.),469;Bac;Abr., Slander, der; 1 Rolle, Abr., 36; Craft v. Boite, D., 4; RoUe, Abr., 87; 1 Vin. Abr., 1 Saund., 243; Hartley v. Herring, 540. D. & E., 8 T. R., 130. 6Bromage v. Prosser, 4 B. & C, 'The Case de Libellis Famosis, 3 247; Craft v. Boite, 1 Saund., 243, n. Coke R, 125; Thornton v. J^bson, 2; Weatherstone v. Hawkins, D. & Hob., 140; Maitland v. Goldney, 2 E., 1 T. R., Ill; Harman v. Taflfen- East, 436; Craft v. Boite, 1 Saund., den, 1 East, 563; Maitland v. Gold- 242; Weatherstone v. Hawkins, D. ney, 2 Bast, 436; 3 New R., 335. & E,, 1 T. R., 111. TMcAlmont v. McClellan, 14 Serg. iltobbins v. Franks, Cro. Eliz., &Eaw.(Penn.),359; Bromagev.Pros- 857; Craft v. Boite, 1 Saund., 243. 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 booonaes liable to suffer some corporal pun- ishment or to sustain some damage.' 6 Jacobus Law Dictionary, 99: The maliciously defaming of a man in his reputation, profession or livelihood by words. 2 Abbott's Law Dictiona7'y, 48S: Aspersion by word of mouth; oral defamation; words uttered falsely and maliciously by which the reputation of another is injured. ^ Bapalje and Lawrence'' s Law Dictionary, 1198: 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, 3S8: The malicious defamation of a man with respect to his character or his trade, profession or occupation by words of mouth. S BurriWs Law Dictionary, ^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 Tomlin's Law Dictionary, ]fi8: The maliciously defaming of a man in his reputation, profession or livelihood by words. Second — The Commentatoes. 3 Blackstone's Commentaries, 123: 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 Ililliard on Torts, 2^3: 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 office 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; Moray v. Morning Journal, 9 L. B. A., 631; 123 N. Y., 207. THE AMERICAN LAW OF DEFAMATION. 41 8 Rentes 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 office or an employment of profit, or the want of integrity in the discharge of the duties of such an office or employment. Class 4. Defamatory 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. 'Pollard V. Lyon, 91 U. S., 225; Morning Journal, 9 L. R. A., 631; 133 Warnoc v. Circle, 29 Grat. (Va.), 197; N. Y., 307. Chapln V. Lee, 18 Neb., 440; Morey v. CHAPTEE IT. 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, 206. 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 NotLibelous — Illustrations — Digest of American Cases — Digest of English Cases. UBEIS CLASSIFIED. 6. 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 lYade, 8. The General Doctrine. 9. Libels on Persons in Office. 10. Illustration — An Old English Case. 11. Distinction between Libel and Slander in England. 13. 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 Ridictde, 16. The Law Stated. 17. Illustrations — Digest of American Cases — Digest of English Casea 18. Libels on Official Persons and Candidates for Office. 19. Illustrations — Digest of American Cases. LIBELS ILLrSTEATIONS. 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 sufficient 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 effigy will constitute a libel;' but it must be something permanent in its nature — not fleeting, as are spoken words.* § 2. II ustrations — 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 : '■ Masmere's ' Card ' Analyzed.— I notice in the ' Republican and Leader ' of November 36th a • card' (?) from W. P. Massuere. referring to the recog- nition for the heroic services of John Kline 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., L. & S., 20; Whitney v. Janesville 435; Miller v. Butler et al., 6 Cush., Gazette, 5 Biss., 330; Tonini v. Ce- €0 Mass. 71. vasco, 114 Cal., 266. 2Cropp V. Tilnev, 3 Salk., 226; Vil- 3 5 Rep., 1256; Anon., 11 Mod., 99; lers V Monsley, 2 Wils., 403; Wat- Austin v. Culpepper, 3 Show., 313; son V. Trask, 6 Ohio, 531; Bradley Skin., 123; Jeffries v. Duncombe, 11 V. Cramer, 59 Wis., 309; 18 N. W. East, 226; Du Bost v. Beresford, 2 Rep., 268; Folkard's Starkie, g 154; Camp., 511. State V. Spear, 13 R I.. 334; Cooper * Odgers on L. & S., 20; Morey v V. Greely, 1 Deaio (N. Y.), 359; Cox Morning Journal, 9 L. R. A., b^l; i.M V. Lee, K R., 4 Exch., 284; Odgers on N. Y., 207. 44 WEITTBN DEFAMATION, 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. Massuere 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 partiqular fund. But I feel confident that upon a comparison of time it will be found that I had handed to Mr. EJine 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 neighbors I will translate for your benefit: Skunk — a thing as repulsive to the finer sensibilities of man as your low insinuations and business practices are to your fellow-townsmen. "[Signed] E. l. Dickens." The card therein referred to is as follows : " A Card.— Mr. J. Kline, of Waumandee, happened to be in towifat 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 E. 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. Fertig 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. IBELS — ILLDSTRATIONS. 45 2. An Indiana Case: Prosser v. Callis, 117 Ind., 105, 19 N. E. Rep., 735. On the 23d day of August, 1885, E. W. Challis, editor and manager of the " 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 rf financial botchwork, patched up to ease popular clamor. If an oflScer 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. 3. A New York Case: Purdy v. Rodiester 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 cold 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- calTs 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, nose 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 46 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: Clarh v. Binney, 3 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 ofiBcial 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 $1,000 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. Southwick, 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., 613. 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.), 366. 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 towards 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., 370. Words fairly imputing to a physician a failure to discover the presence of diphtheria until long after it should have been discovered are libelous in themselves. Gauvreau v. Superior Publishing Co., 63 Wis., 403. 3. To say of a woman that " she islike 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. MoMurry V. Martin, 26 Mo. App., 437. 4. 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 held 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. Mussey, 6 Gray (Mass.), 261. But see Smith v. Ashley, 11 Met. (Mass.), 367. ti. 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. Biggs V. Denniston, 3 Johnson's Cases, 198. 7. A communication concerning a discharged superintendent of the de- fendant's factory, 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, 102 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 f or 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, HofBin, 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 WEITTEN DEFAMATION. ful in Boeiety, is a libel. Dexter v. Spear, 4 Mass., 115; Adams v. Lawson, 17 Gratt. (Va.), 250; Towville v. Neaoe, Dudley (S. 0.), 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 eight of the law, even if done without any actual personal ill-will. Maclean V. Scieffs, 54 Wis., 217: 17 N. W. Rep., 815. 13. A publication which in efEecf 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., 437. 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 Gush. (Mass.), 71. 15. Printed slander is a higher offense than merely speaking the defam- atory words. Whitney v. Janesville Gazette, 5 Biss., 330. 16. 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. Bergman 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., 482. 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 officer 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. G.), 318. 21. To write concerning a man, "look upon him as a rascal, and have watched him for many years," is a libel. Williams v. C&rnes, 4 Humph. (Tenn.), 9. So to write of a man " he has put in circulation a false, scandal- ous and scurrilous report." 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 maUcious writing containing an insinuation that a per- son has been guilty of perjury'is a libel. Dillhouse v. Dunning, 6 Conn., 391; Mallerich v. Merte, 19 La. Ann,, 194; Howse v. Stanford, 4 Sneed (Tenn.), 52a ■WHAT IS LIBELOUS — ILLUSTRATIONS. 49 23. To publish in writing an expression of a belief that one has com- mitted 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., 3 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 oflE so cheaply, is libelous. Dwyer v. Fireman's Journal Co., 11 Daly (N. Y.),,248; Eyer v. Fireman's Journal Co., id., 251. 25. In an advertisement notifying tlie 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. Rep., 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. MitcheU, 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 v. Charles, 13 Wend. (N. Y.), 478. 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, 93 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, 66 Cal. 339, 5 Pac. Rep , 3u4. 30. It is libelous to write and publish th»t a child is illegitimate. Shelby V. Sun Printing Association, 38 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), 473. So an obituary notice of a living person may be a libel. McBride v. Ellis, 8 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. Shattuck v. McArthur, 25 Fed. Rep., 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 60 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 ti-ial in that county. Cooper V. Greeley & McElrath, 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- fluence 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. Eep., 14. Or to call an attorney a "shyster." Gribble v. Pioneer Press Co., 34 Minn., 342; 25 N. W. Rep., 710. To call a man a "skunk." Maasuere 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., 380; 9 N. W. Rep., 43. To charge a person with smuggling goods into the country. Stillwell v. Barter, 19 Wend. (N. Y.), 487. To charge a person with being " a drunkard," " a cuck- old," " a tory." Giles v. Stole, 6 Ga., 376. To assail the integrity or capac- ity of a judge. Robbins v. Treadway, 2 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 election 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. Si. 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 biU. Iron Age Pub. Co. v. Crudup 85 Ala., 519, 5 So. Eep., 333. II. Publication in 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. Clay v. The People, 86 111., 147. PUBLICATION IN NEWSPAPERS. 51 8. A newspaper advertisement describing a horse as stolen, and stating "the thief is believed to be one William H. Simmons, of Belle Plaiue," is libelous. Simmons v. Holster, 13 Minn., 349. 4. A. was a witness in a suit between B. and C, and 0. 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.), 314. 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 office 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. Jloffatt v. Caldwell, 5 Thomp. & C. (N. Y.), 356; 3 Hun, 36. 8. Words published in a newspaper which tend to impeach the honesty 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, 3 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 sum, it was stated that the plaintiff had been employed to prepare the mine by plastering and engrafting silver ore on the limestone rock while armed men guarded the entrance to the mine. 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 influence 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 charg- ing the plaintiff with having knowinglv aided in a swindling enterprise. WilliamB v. Godkin, 5 Daly (N, Y.}, 499 52 WEITTEN DEFAMATION. 10. In an action by E. against A. for libel, there was evidence that A. was the publisher of the Leavenworth ' ' Times," containing an article : ' ' Who is Ed. Russell, in whose eyes swindling is no crime? He is secretary of the bankrupt Kansas Insurance Company, and less than two years ago be 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 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." 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, 21 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, 92 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, 87 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. Larabee, 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, 312; 14 N. W. Rep., 237. 14. Communications or publications which upon proper occasions are qualifiedly privileged are not privileged when made by persons actuated by malice. /Defamatory words in a notice forbidding all persons from 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 JSTEWSPAPEES. 53 tice forbidding credit to a woman on her husband's account that defend- ant 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, 73 Mich., 445, 3 L. R. A., 53, 41 N. W. Rep., 499. 15. 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 Specific Co., 76 Ga., 280. 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. Kuhn, 71 Tex., 645, 9 S. W. Rep., 830. 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, 23 W. N. C, 541, 17 Atl. Rep., 315. 20. An prticle in a newspaper stating that defendant had been informed that plaintiff had stolen a horse, and that he was capable of being acces- sory in a burglary that had been committed, is libelous per se. Rosewater V. Hoffman, 24 Neb., 232, 88 N. W. Rep., 857. 21. A publication charging persons with confederating to mismanage the 51 WEITTEN DEFAMATION. affairs of a company, so as to destroy the value of its stock and injure tne other shareholders, is actionable per se. Wallis v. Walker, 73 Tex., 8, 11 S. W. Rep., 133. 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.), 23 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 office 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 fornjer 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.), 637. 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 office. 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 pedigr'ee by their knowledge of artistic history, and constructed theories as to its origin, which at once displayed their erudition 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 difficulty 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 NEWSPAPEES. 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, 1-33 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 oflicer who would swear to one lie would swear to another, is libelous if the charges are false. Prosser v. Callis, 117 Ind., 105, 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, plaintiflf being at the time and for a number of years before having been a married man with a family; and itis 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, 123 N. Y., 207. 27. A newspaper has no right to publish the contents of an ex parte affidavit made to obtain the plaintifl'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 stoyy." 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., 224. 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 someone without his order and against his will. Commonwealth v. Kneeland, Thatch. Cr. Cas., 346. 82. 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, 2 Hill (N. Y.), 510. 56 WEITTBN DEFAMATION. IIL P0BLIOATIONS 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 declaration. 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 were seized by the revenue oflScers. 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 for 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. Mr. 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. PosTiNO 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., 368; 17 N. W. Rep., 386. V. Entries Made in Books op Corporations, Associations, etc. 1. The following words written in a church book, "a report raised and circulated by A. B. against brotheT 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 LKTTEES, ETO. 57 member for the 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. Charles, 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 wliich 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 itunderstood 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.), 213. 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 made 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 upon C. if it contains any language which would subject B., had he written it, to public hatred and contempt. State v. Hollon, 13 Lea (Teun.), 483. o. 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 ngency to live upon,-' and other por- tions of the letter accused him of charging unusunl rates, it was properly 58 -WKITTEN DEFAMATIOH. left to the jury to say whether it contained a charge of embezzlement or larcenv. Edwards v. Chandler, 14 Mich., 471. 6. Under code of Virginia, 1873, chapter 145, section 3, 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, shaU be actionable," a letter sei^t to 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. Holland v. Batchelder 84 Va., 664, 5 S. E. Rep., 695. VII. Effigies, etc. 1. An effigy 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. Rep., 435. VIII. Gbnekal Digest of English Cases. 1. It is libelous to write and publish of a man that he is "the most artful scoundrel that ever existed," "is in every person's debt," that " his ruin cannot be long delayed," that " he is not deserving of the slightest commis- eration " (Rutherford v. Evans, 6 Bicg., 451 ; 8 L. J. (O. S.), C. P., 88); " a dishonest man" {Per cur. in Austin v. Culpepper, Skin., 134; 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., 341); that "he grossly insulted two ladies" (Clement v. Chivis, 9 B. & C. 173; 4 M. & R., 137); 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.), 326 ; 7 W. R., 265 ; 33 L. T. (O. S.), ■281); that " he was once in difficulties," though it is stated that such dif- ficulties are now at an end (Cox v. Lee, L. p., 4 Ex., 284; 38 L. J., Ex., 319); "an infernal villain " (Bell v. Stone, 1 B. & P., 381); "an impostor" and yet it seems the words must be spoken >Com. Dig., Act. for Def., F., 13; Haightv. Hpyt, 19N. Y.,468; Hodg- Dickey v. Andrews, 83 Vt., 55; son v. Scarlett, 1 B. & Aid,, 233. ANALYSIS OF THE SUBJECT. 107 upou soaie privileged occasion, for it is immaterial w hat was in the speaker's mind. The question to be determined is, How did the hearers or by-standers understand tbe 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- selres 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, CO 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, 32 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., 123. ' 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 the 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 imputed 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., 225. 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 murdered one Vancrossen, 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 casa " Held, that this amc^nted 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 ; 29 W. B., 401 ; 43 L. T., 710; 45 J. P., 237. 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. Hancock v. Winter, 7 Taunt., 205. 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 reason that the words show opinion merely, and perhaps the speaker might not think that Gale deserved hanging. Bush v. Smith, 108 IMPUTATION OF CEIME. 8 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 otht'.rwise of D. V." 3 Salk., 326. 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. e. It is actionable to say " I think he is a horse-stealer." Stitch v. Wise- dome, Cro. Eliz. , 348. And so it is to say, ' ' He ought to be hanged as much as A." A. having been hanged, 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., 372. 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 Offense— Words Imputing Offenses 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 (2 R. S. N. Y., 695, sec. 33), is actionable per se. Young v. Miller, 3 Hill, 21. 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 I 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, battery and the like are not actionable in themselves although punishable by indictment. Smith v. Smith, 2 Sneed, 478 ; Dudley V. Horn, 21 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 eis soon as 1 Lemons v. Wells, 78 Ky., 117. ANALYSIS OF THE SUBJEOr. 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 lnw a misdemeanor and in itself indictable. R. v. Scofleld (1784), Caldecott, 397. To impute such an at- tempt is therefore clearly actionable. Harrison v. Stratton, 4 Esp., 217. 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., 698; Holt, 40. 8. Defendant charged plaintiff with a breach of the ninth by-law of the Jireat 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 acta, 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.), 387; 15 L. T., 115. But words imputing to a licensed vlctualer 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 plaintiff 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 offense, 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 Cases.— 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.), 31. 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, 2 Rich. (8. C), 573. 3. An action of slander lies for charging a person with a crime the prose- 1 Odgers on Slander and Libel, 58. 110 IMPUTATION OF CRIME. 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.), 333. 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., 123. But see Prince v. Esterwood, 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 our. : " It is a great scandal to be once a thief; tor poena potest redimi, culpa perennis erit." Boston v. Tatam, Cro. Jac, 633. 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, 352; 46 L. J., Ex., 765; 47 L. J., Ex., 470; 25 W. E., 751 ; 26 W. R., 305; 37 L. T., 360, 819. 3. He " was in Winchester gaol and tried for his life, and would have been hanged had it not been for Leggat, for breaking open the granary of farmer A. and stealing his bacon." Carpenter v. Tarrant, Cas. temp- Hardwicke, 339. 4. "He had been in Launceston gaol and was burnt in the hand for coin- ing." Gainford v. Tuke, Cro. Jac, 536. 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 •Van Aukin v. Westfall, 14 Johns. 463; Wall v. Haskins, 5 Iredell, 177; (N. Y.), 333;Poe v. Greerer, SSneed, Heard on L, & S., 45; Krlbs v. 664; Shipp v. McGraw, 3 Murphey, Oliver, 78 Mass., 339 ANALYSIS OF THE SUBJECT. Ill it must 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 law of the state in which it is charged to have been committed. If the offense 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 ii^dictable 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 found.^ §30. The Charge Maybe General. — A general charge of felony is actionable though it does not specif}' any particular crime.' § 31. Illustrations — Digest of American 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 explained, 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 would 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 charge 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.), 327. 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 be 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. 1 Barclay v. Thompson, 2 Penn., 3 Drummond v. Leslie. 5 Blackf. 148. (Ind.), 453; Webster v. Sharpe, 116 2 Stout v. Wood, 1 Blackf., 71; N. C, 466; Herzog v. Campbell, 47 Oflut V. Earlywine, 4 id., 460. Neb., 370. 112 IMPUTATION OF CRIME. 6. But to say of the plaintiff " that he or somebody has altered the credit or indorsement on a note from a larger 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), S33. 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), 501. 8. The charge of " packing a jury" imports the improper and corrtipt selection of a jury sworn and impaneled for the trial of a cause. Mix v. Woodward, 13 Conn., 263. 9. To utter words imputing a crime la actionable, although the crirce 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; 53 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., 63. 3. " He deserves to have his ears nailed to the pillory." Jenkinson v, Mayne, Cro. Eliz., 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. Eoose, 3 M. & W., 191 ; 1 H. & H., 36. 6. " I have got a warrant for Tempest. I wiU 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., 437; Cro. Jac, 407; Peake v. Oldham, Cowp., 275; 2 Wm. Bl., 959. § 33. The 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 possibility be guilty thereof, no action lies, for the plaintiflf 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; 2 Bing., 402; Williams v. Stott, 1 C. BuUer's N. P., 5; Jackson v. Adams, & M., 675. ANALYSIS OF THE SUBJECT. 113 tionable, however, in all oases wbere 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 oiTer 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 lai-oeny. 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 mftiois, 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. lU. 1887, 482, § 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 oflScially his property, and a man cannot steal his own goods. Jackson v. Adams, 3 Bing. N. C, 403; 3 Scott, 599 ^ 1 Hodges, 389. 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., 833; Dacy v. Clinch, Sid., 53; Jacob v. Mills, 1 Ventr., 117; Cro. Jac, 343. 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., 379. •Carter v. Andrews, 38 Mass., 1; mer v. Fessenden, 151 Mass.," 3.19; Stewart V.Howe, 17 111., 71; Beckett V/imer v. Allbaugh, 78 Iowa, 79; y. Sterrett, 4 Blackf. (Ind.), 499; Free- Blackburn v. Clark (Ey.), 41 S. W. man v. Sanderson, 133 Ind., 364; El- Rep. 430. 8 114 IMPUTATION QF CRIME. II. PAETICULAB 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 oharaoteristios 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 intent 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 Eussell on Crimes, 123 ; Rapalje « Hall v. Adkins, 59 Mo., 144; Jack- & L., Law Die, 728. son v. Adams, 3 Bing. N. C, 402. ^Eegina v. Thurborn, 1 Denison, *E. S. 111. 1887, 446; Kibbs v. The 38T, People, 81 111., 589. PAETICtTLAE 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, but, 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 vsrhere 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 company, 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 sbop 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 ofifense 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. » See 2 Bishop's Crim. Law, §§ 804r- 807. 116 IMPUTATION OF CEIMB. tent. Commonly, however, when speaking of the intent in this offense 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 oflfense. 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, which 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 12 Bishop's Grim, Law, §§ 862, 863. 2 jackson v. The State, 11 Ohio St., 104; State v. Hall, 5 Harr. (Del.), 493. PAETIOULAJt OFFENSES. 117 away a tree or apples from a tree, or grass or grain standing in a field,' or 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, C. J.: The natural and most obvious import of the word "steal" is that of felonious taking 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. But 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 b)' tres{)ass, 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 by 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. 111. 1887, 463. gg 6 Norton v. Ladd, 5 N. H., 203. ^ 2 Bishop. Criminal Law. § 763. " Wallis v. Mease, 3 Binney, 546 ; JDunnel v. Fiske, 11 Met. (53 GiUett v. Mason, 7 John. (]N. Y.J, 10. Mass.), 554. 118 IMPUTATION OF CEIME. 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 Word " 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 theft; to purloin; 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 IR. S. 111. 1887, 463. s Carter v. Andrews, 16 Pick, 1; 2Dunnel v. Fiske, 11 Met. (Mass.), Gaines v. Belding, 56 Ark., 100; 19 S. 551. W. Rep., 336. 3 Worcester's Diet, 1409. 6 Alley v. Neeley, 5 Blaokf., 200. * Beckett v. Sterrett, 4 Blackf., 499. ^ Harding v. Brooks, 5 Pick., 344. PAETICUi,AE OFFENSES. 119 a bitch." ' « He is a thief." ^ « You are a thieving fellow ; you stole and run awaj'.''^ " 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 mv horse and fetched him home this morning." " " I will venture anything he has stolen riiy 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."'* • Reynolds v. Ross, 42 Ind., 387. " Parker v. Lewis, 2 Greene (Iowa), ^McNamara v. Shannon, 8 Bush 311. (Ky.), 557; Roberts v. Ramsey, 86 Ga., '2 Hume v. Arrasmith, 1 Bibb (Ky.), 432. 165. 3 Alley V. Neeley, 5 Blackf. (Ind.), i' James v. McDowell, 4 Bibb (Ky.), 200. 188. * Cornelius v. Van Slyck, 21 Wend. " Bonner v. Boyd, 8 Har. & J. (Md.), (N. Y.), 70. But see Bays v. Hunt, 278. 60 Iowa, 251; 14 N. W. Rep., 785. '^Nye v. Ottis, 8 Mass., 122. 5 Hess V. Fackler, 25 Iowa, 10. '^Krebs v. Oliver, 12 Gray (Mass.), «0'Donnell v. Hastings, 68 Iowa, 239. 271 ; 26 N. W. Rep., 433. " Miller v. Miller, 8 Johns. (N. Y.), " Bell V. Femald, 71 Mich., 267. 74. 77. SRutherford v. Moore, 1 Cranch, is Stumes v. Pitchman. 32 111. App., 0. Ct, 388. 399; 15 N. E. Rep., 7o7; Miller v. "Hooley v. Burgess, 9 Ala., 728. 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, 26 Ga., 423. McKee, 12 Dr., 22; 53 Am. Rep., 320. 120 IMPtJTATION 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 shoats you alwaj's have in your 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 steaUng, what do you call it? " * (2) English cases: "I charge J. S. with felony in taking my money out of ray 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." ' " You stole my box-wood, and I will prove it." ' § 49. 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." '* 'McKeev. Ingalls,4Scam.(ni.), 30» s Foster v. Browning, Cro. Eliz., ^ Davis V. Johnson, 2 Bailey (S. C), 688 ; 4 B. & Ad., 630. 9 Baker v. Pierce, 6 Mod., 23. 579. a Morgan v. Livingston, 2 Rich. '"Stokes v. Arey, 8 Johns., 46. (S. C), 573. 11 stees V. Kemble, 27 Penn. St, 112. *Mayson v. Sheppard, 12 Rich. 12 Bays v. Hunt, 60 Iowa, 251; 14 (S. C), 254. N. W. Rep., 785. But see Cornelius 6 Baker v. Pierce, Lord Raymond, v. Van Slyck, 21 Wend. (N. Y.), 70. 959- l8McCurry v. McCurry, 82 N. C, « Morgan v. Williams, Strange 142. 296. ' Beaver t. Hides, 2 Wils. , 300. w Black well v. Smith, 8 Mo. App. , 43, 15 Bain v. Myriok, 88 Ind., 137. PARTIOULAE 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 proceedmg, 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 perjury unless the oath is taken in a judicial proceeding.'' § 51. The (Jeneral 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 words 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." ' " You swore false at the trial of your brother John."* "He has sworn falsely, and I will attend to the grand jury respecting it." ' "You 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 3 Bish. Crim. Law, § 1015. « Fowle v. Bobbins 13 Mass 498. 2Heard on L. & S., § 34 'Oilman --Lowell 8 Wend., 5,3. SYelvertou (An,, ed.), 28, note; sperselly v.Bacon,20Ma,3.0. See, Hopkins V. Beedle, 1 Gaines, 347. also, Upton v Hume 24 Or 420, 4 Jacobs V. Fyler, 3 Hill (N. Y.), 573. Gudger v. Penland, 108 N. C, 59A » Coons V. Robinson, 3 Barb.. 635. 122 IMPUTATION OP CEIME. and see it in a suit between James L. Sherwood, plaintiff, and Eichard P. Brown, defendant." ' § 52. False Swearing. — But to charge a person with false swearing or with having sworn 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 TT^q law is well illustrated in a New York case (Wood v. Clark, 2 Johns., 10). The words in ques- tion were : " He has sworn falsely ; 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 necessaril}' 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 Substantive 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- 1 Sherwood v. Chase, 11 Wend., 38. Caines, 347; Crookshank v. Gray, 20 2 Holt V. Scholefleld, 6 Term, 691; Johns., 844; Stafford v. Green, 1 id.. Hall V. Weedon, 8 Dowling & Ry- 505. iland, 140; Vaughan v. Havens, 8 » Wood v. Clark, 2 Johns. (N. Y.), -Johns., 109; Hopkins v. Beedle, 1 10. PAETICTJLAE 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 anything 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.2 §55. Conclasion — 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, 1^ Wend., Pick. (Mass.), 51 ; Tenney v. Clement, 596; Emery v. Miller. 1 Denio, 208; ION. H., 53, 58. Coons V. Robinson, 3 Barb., 685. 3 Ward v. Clark, 3 John. (N. Y.), 2 Jacobs V. Fyler, 3 Hill (N. Y.), 10; Croford v. Bliss, 3 Bulstrode, 573, 574; Butterfield v. Buffum, 9 150; Core v. Norton, Yelverton, 28. N. H., 156, 168; Stone v. Clark, 21 < Hopkins v. Beedle, 1 Gaines (N. Y.), 347. 124 IMPUTATION OF OKIME. 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 tlie Commission of the Offense.— The following words, phrases and sentences have been held to amount to an imputation of the commission of this offense, and to be actionable: (1) Without a coUoquiutn — 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 0. 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.^" 1 Power V. Miller, 3 McCoi-d (S. C), ^ Coons v. Robinson, 3 Barb. (N. 330. Y.), 635. 2 Pei-selly v. Bacon, 30 Mo., 330. s Cione v. Angell, 14 Mich., 840. 'Colev. Grant, 18N, J. L. (SHarr.), 9 Wood v. Southwick, 97 Mass., 337. 354; Butterfield v. Buff am, 9 N. H.^ * Hopkins v. Beedle, 1 Gaines (N. 156. Y.), 347. 10 Crone v. Angell, 14 Mich., 340 ^ 5 Pelton V. Ward, 3 Caioes (N. Y.), 73. Gube v. McGinnis, 68 Ind. , 538 ; Cole 6 Walrath y. Nellis, 17 How. Pr. (N. v. Grant, 3 Harr., 337; Bricker v. Y.), 73. Potts, 13 Penn. St., 300; 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 perjury." ' 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^ctionable, for it may have reference to a judicial proceeding in which the party is Southwick, 97 Mass., 354; Pelton v. 15; Holt v. Soholefleld, 6 T. R., 691; Ward, 3 Caines (N. Y.), 347; Ring Ceely v. Hoskins, Cro. Car., 509. V. Wheeler, 7 Cow. (N. Y.), 725. 3 Stafford v. Green, 1 Johns., 505. 1 Roberts v. Camden, 9 East, 93; 4 Muohler v. Mulhollen, Lalor, 263. Holt V. Scholefield, 6 T. R., 691; BRundell 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.), 234. 126 IMPUTATIOlf OF CBIME. 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,'! Stew. (Ala.), 138; Oarlock v. Spencer, 7 Ark., 12; Eccles v. Shannon, 4 Harr. (Del.), 193; Rhinehart v. Potts, 7 Ired. (N. C.) L., 403; Newbit v. Statuck, 35 Me., 315. 2. It has been held a sufficient charge of perjury without proof of special damage to eay of a person, " You swore false at the trial of your brother." Fowle V. Robbins, 12 Mass., 498. To say " A. swore to a lie on the trial of" a certain action, naming it. Ramey 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." Safiford 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 {herein. 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 ; " " I believe 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, 2 Serg. & R., 469; Cole V. Grant, 18 N. J. L. (3 Harr.), 327 ; McLaing v. Wetmore, 6 Johns. (N. Y.), 82. 6. But it has hee,n 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., 847 ; 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. Ammermao, 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, 2 Bibb ingston, 2 Rich. (S. C), 573. (Ky.), 319. « Hopkins v. Beedle, 1 Cai. (N. Y.), PARTIOULAE OFFENSES. 127 7. Words charging a person with swearing to falsities before a justice are not actionable. Robertson 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 aflSdavit. 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. Homey 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 are actionable in themselves. Chapman v. Gillett, 3 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., 438. 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. ll!. 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. T.), 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, 12 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 jiidice; 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.— U one person charges another with 128 IMPUTATION OF CEIMB. 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 oflFense of perjarj 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 falselv 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- mouly known to be likely to cause death or bodily harm, and when such act has no legal justification or excuse. » E. S. 111. 1887, 1216. PARTICULAR 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 by 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 when 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 whom 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; Eapalje 3 Taylor v. Casey, Minor (Ala.), 358. & Lawrence, Law Diet., 614 See, also, Republican Pub. Co. v. 2 Thomas v. Blasdale (Mass.), 18 Miner, 3 Colo. App., 568. N. E. Rep., 314. 9 130 imppi'ation of 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, "You 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 masters 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,—" '2 have all been held to be sufficient 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 'O'Connor v. O'Connor, 24 Ind., '2 Mod. Ca., 34. 218. 8 1 And., 130. 2 Harrison v. Findlay, 23 Ind., 365. » Cro. Eliz., 823. 8 Sugart V. Carter, 1 Dev. & B. (N. lo i Roll., 73, 1, 15. ^•) ^- 8- "Cooper V. Smith, Cro, Jac, 423; Waters v. Jones, 3 Port. (Ala.), S2 Russell on Crimes, 896. 443. » 1 Eapalie & Lawrence, Law Diet., « Logan v. Steel, 1 Bibb (Ky.), 5Jd 'Gray V. Shelton, 3 Eioh. (S. C), 242. 80. * People V. Henderson, 1 Park. Cr. (N. T.), 560; Davis v. Carey, 8 Pa. BQiddins v. Mirk, 4 Ga., 364> Co. Ct. k, 578; 28 W. N. C, 10; Elling- ton V. Taylor, 46 La. Ann., 371. 134 IMPUTATION OF OEIME. • ,>- Stated that the defendant maliciously said of the plaintiff: "He burnt the school-house" (innuendo), " the school-house of the defendant," or " you burnt the school-house," or the plaint- iff, by name, " burnt the school-house," with the same innu- endo. On a motion in arrest of judgment it was held that the words did not in themselves necessarily convey the meaning that the plaintiff had wilfully burned the house, and that the declaration was insufiBcient.' English cases: It was held in 1602 that no action lay for saying "Master Barham did burn my barn with his own hands; " for at that date it was not felony to burn a barn un- less it were either full of corn or parcel of a mansion-house; and defendant has not stated that his barn was either.^ § 71. Attempts to Commit Offenses.— An attempt to com- mit a crime is a misdemeanor at common law.' The effect of the imputation of the commission of this offense must depend very much upon the state of the law in those jurisdictions where the imputation is made. American cases: In Alabama the words " W. J. B. tried to steal Tobe Keady's hog, but he could not do it," * was held actionable. "Words imputing to one an attempt to procure a miscarriage, not within the exceptions of the statute, are actionable in themselves.' English cases: "You have sought to murder me. I can prove it." ' "She would have cut her husband's throat, and did attempt to do it." ' But the following was held to be insufficient: "Thou wouldst have killed me." ' " Sir Harbert Crofts keepeth men to rob me." ' " He would have robbed me." " For here no overt act is charged, and mere intention is not criminal." > James v. Hungerford, 4 Gill & J. ' Preston v. Pinder, Cro. Eliz., SOy, (Md.), 403; McKee v. Ingalls, 4 Scam., ' Scott v. Hellior, Lane, 98; 1 Vin. 30; Seatonv. Codray, Wright, 101; Abr., 440. Wilson V. Tatum, 8 Jones (N. C.) L., 8 Dr. Poe's Case, cited in Murrey's 300. Case, 2 Buls., 206; 1 Vin. Abr., 440. SBarham'sCase, 4Eep., 20; Yelv., 9 Sir Harbert Crofts v. Brown, 3 21. Bills., 167. 8 Bishop's Crim. Law, § 683. "Stoner v. Audely, Cro. Eliz., 250. «Berdeaux v. Davis, 58 Ala., 611. "Eaton v. Allen, 4 Rep., 16 b; Cra » Bissell V. Cornell, 24 Wend., 354. Eliz., 684. PAETIOULAE OFFENSES. 135 § 72. Keeping a Bawdy-house.— "Whatever may have been the earlier decisions it is now well settled in England that it is actionable, without proof of special damages, to charge a per- son with keeping a bawdy-house.^ Amerioan cases: The defendant sent a stranger to the house of the plaintiff, saying to him at the time: "It is a house of ill-fame, and kept by a whore named Mrs. Burns." ^ " He keeps a bad house, and not a proper place of resort; he keeps bad girls there," taken in their natural and obvious sense, impute the keeping of a house of ill-fame and are actionable.' English cases : "You are a nuisance to live beside of. You are a bawd, and your house is no better than a bawdy-house." * § 73. Bigamy — Tlie Offense Defined.— The act of a person who, having a legal husband or wife living, wilfully goes through the form of a marriage with another person. But a person marr\nng again during the life-time of the wife or husband will not be held guilty of this offense in cases where the wife or husband has been continually absent for seven years, and has not been known by the person so marry- ing to have been alive during that time.' § 74. Words Imputing tlie Commission of this Offense. — The following words, phrases and sentences charging the com- mission of the crime of bigamy have been held actionable in themselves: American cases: "He was married to a woman [naming her] and kept her till he got sick of her, and then sent her away, he having all this time two wives."', English cases: Mrs. Heming was sister to Mr. Alley ne. The defendant said : " It has been ascertained beyond all doubt that Mr. AUeyne and Mrs. Heming are not brother and sister, but man and wife." Held, that it was open to the jury to construe this as a charge of bigamy as well as of incest.' 1 Bray ne v. Cooper, 5 M. & W., 249 ; » Fitzgerald v. Robinson, 1 1 2 Mass., Huckle V. Reynolds, 7 Cora. Bench, 371. N. a, 114; 8 Com. Bench, 142; All- ^ Huckle v. Reynolds, 7 C. B. (N. sop V. Allsop, 5 H. & N., 534; Perkins &), 114. V Scott. 1 H. & Colt., 153; Martin v. 5 1 Rapalje & Lawrence, Law Diet., Stillvvell, 13 Johns. (N. Y.), 275; Mc- 125; 3 Russell on Crimes, 26i: 4 Steph. Clean v. N. Y. Press Co., 19 N. Y. S., Cora., 279. 2g3_ 6 Parker v. Meader, 33 Vt, 300. 2 Griffin V. Moore, 43 Md., 246. ' Heming et ux. v. Power, 10 M. & W., 564. 136 IMPUTATION OF CRIME. A declaration stated that the defendant, intending to charge the plaintiff with the crime of bigamy, and to bring him into danger of legal punishment, published the false and malicious libel following, that is to say: "Ten Guineas Ee- WAKD. "Whereas, by a letter lately received from the West Indies an event is stated to be announced by a newspaper, that can only be investigated by these means: this is to request that if any printer or other person can ascertain that James Delaney, Esq. [the plaintiff], some years since residing at Cork, late lieutenant in the North Lincoln militia, was married pre- vious to 9 o'clock in the morning of the 10th of August, 1799, they will give notice to Jones [the defendant], No. ll, Duke street, St. James', and they shall receive the reward." There was no innuendo that the defendant meant thereby to insinuate and have it understood that the plaintiff had been and was married before the time mentioned in the advertise- ment, and had another wife then living; he being then mar- ried to one Elizabeth Weston, his present wife. The defense relied upon and given in evidence was that this advertisement had been inserted by the authority of the plaintiff's wife, for the purpose of discovering whether the plaintiff had another wife living. Lord Ellenborough : "This paper is relied upon as necessa- rily carrying with it the imputation that the plaintiff was guilty of bigamy. Tou must be of opinion that it does carry such imputation before you can find a verdict for the plaintiff, as that meaning is necessary to make the paper a libel at all. The plaintiff's counsel contend that you are to take into your consideration only whether the advertisement conveys a libel- ous charge against the plaintiff or not. I am of a different opinion. I conceive the law to be that though that which is , spoken or written may be injurious to the character of the party, yet if done hona fide, as with a view of investigating a fact, in which the party making it is interested, it is not libel- ous. If, therefore, this investigation were set on foot and this advertisement published by the plaintiff's wife, either from anxiety to know whether she was legally the wife of the plaint- iff, or whether he had another wife living when he married her, though that is done through the medium of imputing bigamy to the plaintiff, it is justifiable; but in such a case it PAETIOniAE OFFENSES. 137 is necessary for the defendant who publishes the libel to show- that he published it under such authority and with such a view. The jury are therefore first to say whether the advertisement imputes a charge of bigamy to the plaintifif ; and if they think it does, then to inquire whether the libel was published with a view by the wife of fairly finding out a fact respecting her husband, in which she was materially interested. If it was so, tiie publication is not a libel, and the defendant is entitled to a verdict." ' The jury found a verdict for the defendant. § 75. Blackmailing — Statutory Offense. — The words "The blackmailing crowd in West Twenty-fifth street had better beware. Cautions 51 and 53," published of the plaintiff, who kept a boarding-house at these numbers, was held to impute the commission of the offense under the laws of New York.' § 76. Bribery — The Offense Defined.— A bribe is a gift or offer of a gift made to some public officer in order to influence or reward him in respect of or in relation to any business hav- ing been, being or about to be transacted before him in his office; and bribery is the offense committed by the person who gives or offers the bribe and by the officer who accepts it.' At elections it is the offense of giving, offering or promising any money or other valuable consideration in order to induce a voter, or person supposed to be a voter, to vote or refrain from voting, or as a reward for his having voted or refrained from voting.* § 77. Bribery of Voters — Statutory Offense — Libel.— To publish of a candidate for office, "A remarkable and unparal- leled case is presented in this congressional district: It is a man running for congress, not on any platform or any well- defined issue before the people, but simply on beer and brib- ery, and, what is more remarkable still, he has hopes of sue- ^ ceeding.' A candidate for a high and responsible office, one > who in the halls of congress will represent and express the 1 Delany v. Jones. 4 Esp. N. P. R., ^Rapalje & Lawrence, Law Diet., J91 153; Russell on Crimes, 318. ^Robertson v. Bennett, 1 Abb. N. «3 Wheel. Am. C. L., 498, n.; Ra- C 476- Edsall v. Brooks, 3 Robt. palje & Lawrence, Law Diet., lo^, (N y ) 29; 3 id., 284; Hess v. Sparks, Field v. Colson, 93 Ky., 347; Boehmer 44 Kan 465; Mitchell v. Sharon, 59 v. Detroit Free Press, 94 Mich., 7; Fed. Rep., 980. ' Booker v. State, 100 Ala., 30. 138 IMPUTATION OS" CRIME. wishes of thirty thousand voters, is to be placed there simply through the influence of beer and money; or, more properly speaking — for it reduces itself to that — through beer and bribery," has been held to be actionable without proof of spe- cial damage.' § 78. Burglary — The Offense Defined at Common Law.— The felonious and forcible breaking and entering a dwelling- house in the nightjtime with intent to commit a felony therein. The execution of the criminal intent is immaterial. The break- ing and entering may be actual or constructive — actual where a door or window is opened; constructive, where the entrance is obtained by threats or fraud, or by collusion with some per- son in the house.^ In the several states there are various enactments concern- ing this offense which modify to some extent the common-law definition. In some states it may be committed in the day- time equally as well as by night.' § 79. The Moral Effect of the Charge. — As was said under the head of larceny, the right to acquire and hold property is one of the fundamental principles upon which every ririlized society rests; and so is the right to be secure in our habitations from the attacks of thieves who break in and steal. This of- fense, says Sir Matthew Hale,* specially concerns the habita- tion of man, to which the laws of England have a very special regard. So much so and so far has the law been carried in this respect in England, and also in America, that no real breaking 34 149; Chap:n v. Lee, 18 Neb., 440; 25 Minn., 531; 26 N. W. Rep. 904. PAETICTJLAIl OFFENSES. 141 state of Ohio," the mere statement in connection with such words that the plaintiff was in business with defendant's brother, or was a clerk for him when he stole the money, would be no explanation of the offensive words, and would not reduce the crime charged from larceny to the common- law offense of embezzlement without the further explanation that the money charged to have been stolen was received from the sale of goods and appropriated by him.^ English cases: "You are a rogue and a villain; and what have you done with the commoner's money you embezzled?" ' § 87. Forgery — The Ofifeuse Defined.— The act of doing one of the following things with intent to defraud : (1) To make a document purporting to be what it is not. (2) To alter a document without authority in such a manner that if the alteration had been authorized it would have altered the legal effect of the document. (3) To sign a document in the name of a person without his authority, whether such name is or is not the same as that of the person signing it. (4) To sign a document in the name of any fictitious person alleged to exist. (5) To sign a document in a name represented as being the name of a different person from that of the person signing it, and intended to be mistaken for the name of the former. (6) To sign a document in the name of a person personated by the person signing, if the effect of the document depends upon the identity between the person signing it and the person whom he professes to be.' § 88. Under Statutes. — In the United States this offense is punished by statutory penalties, but there are many things which may be the subject of forgery and do not come within the meaning of these statutes. As applicable to such things the subject of forgery is taken up by the common law, by which the false and fraudulent making of any written instrument with intent to prejudice any public or private right is desig- nated as a criminal act and punished as such;* and hence the ■ 1 Upliam V. Dickenson, 50 III. ,97. ^ a Russell on Crimes, 618 ; 1 Eapalje 'Williams v. Scott, 1 C. & M., 675; & Lawrence, Law Diet., 537. 3 Tyrw., 688. * Com. v. Ayer, 3 Cush. (Mass.), 150 , Eeg. V. Sharman, 6 Cox, C. C, 312. 142 IMPUTATION OF CEIMB. imputation of the false and fraudulent making of any such instrument or the general charge of forgery is actionable in itself.' As a general rule, however, the charge of the forging of any writing which is genuine would not operate as the foundation of another person's liability or to the prejudice of any public or private right, and is not actionable.* American cases: In slander the word " forgery " does not necessarily mean a felonious forgery, for which alone an action lies. The charging of a person with forging a name to a peti- tion to the legislature to procure lands is slanderous.' So words charging a person with having forged a deposition are actionable.* But charging that the defendant signed a note as surety for the plaintiff, and afterward denied having signed it, does not import a charge of forgery against the plaintiff.' JEnglish cases: In the English courts the following words have been held a sufficient charge of forgery: " This is a coun- terfeit warrant made by Mr. Stone." ' " Thou hast forged a privy seal and a commission." Per cur.: "'A commission' shall be intended the king's commission, under the privy seal." ' " You forged my name," although it is not stated to what deed or instrument.' § 89. Oaming — Keeping a Gambling-honse — The Offense Defined. — The word " gamble," as defined by the lexicog- raphers, means " to game or play for money." In common parlance a gambler is one who follows or practices games of chance or skill with the expectation and purpose of thereby winning money or other property. To say of a man that he keeps a gambling place or a gambling den imputes that he keeps a place at which gambling is practiced, and includes the idea that the place is resorted to for that purpose. All such gaming is illegal. A charge of that kind conveys a criminal imputation, and is actionable without proof of special damages. 1 Nichols V. Hays, 13 Conn., 155; » Andrews v. Woodmansee, 15 Andrews v. Woodmansee, 15 Wend., Wend., 233. 333; Barnes V.Crawford, 115 N.C., 76. egtone v. Smalcombe, Cro. Jac, 2 Jackson v. Weisiger, 2 B. Monroe 648. <^y-)' 314 ' Baal v. Baggerly, Cro. Car., 326. 3 Alexander v. Alexander, 9 Wend., 8 jones v. Heme, 3 Wils., 87, over- 1*1- ruling Anon., 8 Leon., 331 j 1 Roll. * Atkinson v. Reading, 5 Blackf. Abr., 65. (Ind.), 39. PARTICaLAE OFFENSES. I45 The words « B, keeps a gambling hell. B. makes his money easy. He keeps a gambling place. My husband don't visit B.'s gambling den," » have been held to impute the commission of this offense. § 90. Incest — The Oflfeuse Deflued.— The carnal knowledge of persons within the degree of kindred in which marriage is prohibited. In the United States it is punished by fine and imprisonment. § 91. Moral Effect of the Charge.— It rests with the posi- tive law to determine the degrees of relationship within which carnal intercourse becomes unlawful; f^r, although marriages between persons nearly related are clearly opposed to the law of nature, it is diflScult to fix the point at which they cease to be so. With rare exceptions all civilized nations have agreed in regarding marriage between those lineally related as un- natural and offensive ; but beyond this point rules and opin- ions have been various. Of the writers who have argued this question, Mr. Taylor, in his work on the Eoman law, holds that it is not with the case of lineal relationship alone that the law of nature is concerned ; that in proportion as other rela- tives approach in nearness to the paternal is fraternal relation. Marriages between them are to be more or less severely de- nounced ; and, finally, that the first point at which intermarriage between kindred is consistent with propriety is that of the fourth degree, as fixed by the civil law. By this rule the Eoman law permitted the marriage of the children of brothers and sisters.^ So did the Levitical laws;' and this was the rule of the Koman church until the time of Pope Alexander II. The rule of the Roman law is generally observed also in the posi- tive law systems of modern states. In England and in nearly all of the United States the marriage of cousins is certainly lawful, and not an uncommon practice, though of late much attention has been paid to the subject, and powerful arguments resting upon unquestionable and significant facts have been urged against such marriages.* In Illinois the marriages of first cousins are declared by the statute to be incestuous and prohibited.* The moral effect of the imputation of this offense 1 Buckley v. O'Niel, 113 Mass., 193. *9 American Encyclopedia, 473. 2 Institutes, 1, 10. ^R. S. 111. 1887, p. 873. 3 Levit. , ch. 18 : 6-20 ; Numbers, ch. 30:10-11. 144: IMPOTATION OF CRIME. differs greatly according to the location and degree of con- sanguinity existing between the parties. In most of the states to falsely charge a man with having married his cousin would not be actionable at all, while in Illinois, where marriages be- tween cousins of the first degree are declared incestuous and void, it would undoubtedly be slander. But what can be more degrading than the imputation of a person sustaining impure relations with a sister — and this, too, notwithstanding the form of marriage may have been celebrated between them? § 92. AVords Imputing the Commission of this Offense.— The following words, pleases and sentences have been held ac- tionable in themselves : Ainerican oases: " My father-in-law has used my wife for eleven years. The children are not mine; they are from him."i English cases: Mrs. Heming was sister to Mr. Alleyne. The defendant said : " It has been ascertained beyond all doubt that Mr. Alleyne and Mrs. Heming are not brother and sister, but man and wife." Held, that it was open to the jury to construe this as a charge of bigamy as well as of incest.* § 93. Kidnaping — The Offense Defined at Common Law. — The forcible and unlawful abduction and conveying away of a man, woman or child from his or her home without his or her will or consent, and sending such person away with intent to deprive him or her of some right.' Under the statutes of New York, which define the offense substantially as at common law, a publication in these words was held to impute the offense and to be libelous. A northern freeman enslaved by northern hands. November 30, 1836, Peter John Lee, a free colored man, of "Westchester county, N. Y., was kidnaped by Tobias Boudinot, E. E. Waddy, John Lyon and Daniel D. Nash, of New York city, and hur- ried away from his wife and children into slavery. One went up to shake liands with him, while the others used the gag and chain. See " Emancipator," March 16 and May 4, 1837. This is not a rare case. Many northern freemen have been enslaved, in some cases under color of law.* ' Guth V. Lubach, 40 N. W. Rep. » 1 Bouvier's Law Diet., 690. (Wis.), 681. 4 Nash v, Benedict, 25 Wend. (N. 2 Heming and wife v. Power, 10 M. Y.), 645. & W., 564. PAETICDLAE OFFENSES. 145 §94. libel — The Oflfeiise Defined.— In its most general sense, a published writing, picture or similar production, of such a nature as to immediately tend to occasion mischief to the public, or to injure the character of an individual." To falsely charge another with being the author of a libel has been held actionable, as imputing an offense involving moral turpitude.^ For example: " "What is a woman that makes a libel? She is a dirty creature, and that is you. Tou have made a libel, and I will prove it." ' § 95. Rape — The Offense Defined.— Bishop: The having of unlawful carnal knowledge by man of a woman, forcibly and against her will.'' Blackstone: The carnal knowledge of a woman, forcibly and against her will.* Lord Coke: Kape is where a man hath carnal knowledge of a woman by force and against her will.' It is a felony by the common law.'' Sir Matthew Hale: The carnal knowledge of any woman above the age of ten years against her will, and of a woman- child under the age of ten years with or against her will. Hawkins: " It seems that rape is an offense in having un- lawful and carnal knowledge of a woman by force and against her will." * §96. Moral Effect of the Charge. — Every civilized nation, ancient and modern, has declared by its criminal codes its ab- horrence of this offense, and afiBxed to its commission the se- verest punishments. By the Mosaic law to ravish a damsel who was betrothed to another was held to be an offense pun- ishable with death ; and in case of one not betrothed the of- fender was compelled to take the damsel to wife and pay the father a fine of fifty shekels. By the civil law rape was pun- ishable by death and confiscation of goods. The civilians, 13 Rapalje's & Lawrenpe, Law < 2 Bishop, Grim. Law, § 1113. Diet., 752. * 4 Black. Com., 210. 2 Boogher v. Knapp, 8 Mo. App., « Coke, 3 Inst., 180. 591. See, also, Divens v. Meredith ' 1 Hale's Pleas of the Crown, 628. (Ind.), 47 N. E. Rep., 143. 8 1 Hawkins' Pleas of the Crown, 3 Andreas v. Koppenheafer, 3 Serg. Curw. ed., p. 133, g 3. & Raw. (Penn.), 355. 10 146 IMPUTATION OF CEIME. however, made no distinction between rape, as defined by the common law of England, of which force and want of consent are the characteristic elements, and seduction without force, of which the common law takes no cognizance. Under this law the unlawful carnal knowledge of a woman with her consent was punished in the same way as if obtained forcibly and against her will. This is said to have been so because the Eomans entertained so high an opinion of the chastity of their women they would not presume them to be capable of a vio- 'lation of it unless induced by evil acts and solicitations; and in order to more effectually secure them from danger, they made a violation of the chastity of their women, however con- summated, equally a crime in the man, and visited its penalties upon him alone. By, the Saxons rape was considered as a felony and punished with death, though the woman (if single) might redeem the offender from execution if she was willing to accept him in marriage. But William the Conqueror, prob- ably deeming the punishment of death too severe, changed it to castration and loss of the eyes. By the statutes of George IV. and Victoria it was made a non-capital felony, punishable by transportation for life. In this country, although the pun- ishment varies somewhat in the different states, it is by all treated as a felony and punished either by death, imprison- ment for life or for some term of years.^ Sir Matthew Hale said it was a most detestable crime, and therefore ought se- verely and impartially to be punished with death.* § 97. Words Imputing the Commission of this Offense.— The following words, phrases and sentences charging the com- mission, of the crime of rape have been held actionable in themselves : English cases: " He would.have been hanged for a rape but it cost him all the money in his purse." ' In another case for the words, "Thou hast ravished a woman; and I will make thee stand in a white sheet," it was held no action would lie, be- cause it appeared from the latter words that the speaker only intended to impute the commission of such an offense as was punishable in the spiritual courts.* 1 13 American Encyclopedia, 761. » Redfern v. Todel, Cro. Eliz., 589. « 1 Hale's Pleas of the Crown, 635. * Ridges v. Mills, Cro. Jac, 666. PARTICULAE OFFENSES. 147 § 98. Robbery — The OfiFense Defined.— The felonious and violent taking away from the person of another goods or money to any value;' larceny committed by violence from the person of one put in fear.- The word robbery has but one legal sense. Prima facie it means an unlawful tailing with violence, and must be so understood, unless it appears from the context or is shown by the defendant that it is meant in some other sense; for example, the words "you robbed W." are ac- tionable in themselves.' Here the law acknowledges but one meaning, and that is the worst. The effect of a colloquium or Innuendo can only be to show that the words were used in a sense inferior to that which must, prima facie, be presumed.* §99. Moral Effect of the Charge.— Robbery has, always been considered a crime of a very aggravated nature, and es- pecially so when committed with deadly and dangerous weap- ons. It was formerly punished with rigor and severity. Until comparatively recent times it was punished with death in this country as well as in England, and so even in cases where the value of the property taken, if unaccompanied by violence, would have been petit larceny only. This was the rule of the common law ; but the progress of civilization, which has re- stricted capital punishment, has modified the penalty for rob- bery as a general thing to imprisonment for life, or for a term of years, according to the circumstances of the offense. Eob- bery is an aggravated form of larceny. While the thief has been in all ages of the world a subject of contempt, the robber has been held both in contempt and in fear — an outlaw of society, an enemy of civilization. The charge in its moral ef- fect must be even more degrading than that of larceny. § 100. Words Imputing the Commission of this Offense.— The following words, phrases and sentences charging the com- mission of the crime of robbery have been held to be action- able in themselves: (1) American cases: In a suit for slander, where the com- plaint alleged that the defendant had said that the plaintiflE " had a roll of money at a certain place, a short time after the death of my father, and this was the money that he was 1 1 Hawkins, P. C, Curw. ed., 213. ' Slowman v. Button, 10 Bingham, « 3 Bish, Crim. Law, S 1156 ; Com. 403. T. Clifford, 8 Cush. (Mads.), 415. * Heard on L. & S., 38. lis IMPUTATION OF CEIME. robbed of," it was held a suBBcient imputation of crime.' But the words, " You did rob the town of St. Cloud. You are a public robber," are not actionable, for the crime of robbery cannot be committed against a town.^ So to say of the treas- urer of a Masonic lodge, "He has robbed the treasury of a sum of money and bought a farm with it," imputes no more than a breach of trust and is not actionable.' (2) English cases: "He is a thief, and robbed me of my bricks." * " You robbed me, for I found the thing you have done it with." « " You robbed White." » To say " I have been robbed of three dozen winches; you bought two, one at 3*., and one at 2s.; you knew well when you bought them that they cosi 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.' § 101. Sodomy— Bestiality— Buggery— The Crime against Nature — Tlie Offense Defined. — The carnal copulation by human beings with each other against the order of nature or with a beast. It is an offense at common law, but there is some doubt whether it is a felony or misdemeanor under the common law of this country. In most of the states it is pun- ishable under statutes. It may be committed between two persons, both of whom may consent; so it may be between husband and wife. So two men or a boy and a man may commit it; or by a man or woman with a beast.* Thouffh it was held in England that the offense could not be committed by a man with an animal of the fowl kind, because the fowl did not come under the term " beast." ' § 102. Moral Efifect of tlie Charge. — If any crime, says Bacon, deserves to be punished in a more exemplary manner, this one certainly does. Other crimes may be prejudicial to society, but this one strikes at its being. A person who has iHutts V. Hutts, 51 Ind., 581. STomlinson v. Brittleback, 1 N. & 2 McCarta v. Barrett, 13 Minn., 494. M., 455. 9 Allen V. Spillman, 12 Pick. (Mass.), 'Alfred v. Farlow, 8 Q. B., 854; 15 101. L. J., Q. B., 258; 10 Jur., 714. < Slowman v. Button, 10 Bing., 402. » 2 Bish. Crim. Law, §§ 1191-1 193. SKowcliff V. Edmonds, 7 Mees, & *Regina v. Jellyman, 8 Car. & P., Wei., 12. 694 PAETIOULAE OPFEKSES. 149 been guilty of so abusing his faculties will not be likely after- wards to have a proper regard for the opposite sex. The tend- ency is to deprave the appetite and produce in the person insensibility to the most ecstatic pleasure which human nature is capable of enjoying — the society of women. By the Leviti- cal law, not only the person guilty of the offense was decreed to suffer death, but the beast was also put to death. This is said to have been ordained not because the beast had offended, but for the reason that the Divine Author of the Levitical law, to make mankind sensible how detestable this crime was in His sight, would have every creature put to death which had contributed to its commission. Formerly in England the offense was deemed of a nature so heinous that the delicacy of the common law would not permit it to be named in the indictment. The tendency of the imputation is to degrade the person charged both morally and socially, and forever brand him with unpardonable infamy and disgrace — a social outlaw; and hence the charge, if unfounded and maliciously made, must be regarded as one. of the most grievous wrongs known to the law of our land.' § 103. Words Imputing the Commission of this Offense. — The following words, phrases and sentences charging the com- mission of the crime of sodomy have been held actionable in themselves: (1) American eases: To say " She had intercourse with a beast;"' or to say of one "He has been with a sow;"' or " When you see M. C. say 'dog,' whistle or howl, and that will make her drop her feathers." " M. C. killed the dog. She had been caught in the act with the dog, and the dog died from the effect of it." " There was a tale started to the effect thatM. 0. had been intimate with a dog and it killed the dog." < " My son Rial saw him ravishing a cow." But it was held not actionable to say " He was seen foul of a cow." " Rial that morning caught him foul of a brute," because the state- ment does not warrant the innuendo that he was guilty of the crime of bestiality.' 19 Bac. Abr., 158; PuflE., Law of < Cleveland v. Detweiler, 18 Iowa, Nature and Nations, b. 3, ch. 3, § 3. 399. 2 Haynes v. Kichey, 30 Iowa, 76. » Harper v. Delph, 3 Ind., 335. » Woolcot V. Goodrich, 5 Cow. (N. Y.), 714. 150 IMPUTATION OF CEIME. (2) English cases: "You P., you will lie with a cow again as you did. If you had your deserts you would deserve to be hanged." • " Thou art a buggering rogue. I could hang thee." ' " His character is infamous. He would be disgraceful to any society. Whoever proposed him must have intended it as an insult. I will pursue him and hunt him from all society. If his name is enrolled in the Eoyal Academy, I will cause it to be erased, and will not leave a stone unturned to publish his shame and infamy. Delicacy forbids me from bringing a direct charge, but it was a male child of nine years who complained to me." ' Where the declaration rebiting that there was a sus- picion of one Hooper being guilty of sodomitioal practices, stated a colloquium about him, and the plaintiff being guilty of such practices, and that in that discourse the defendant spoke the following words: "I have seen Coleman go into Hooper's house and stay there all night, instead of going home to his wife." * § 104:. Soliciting Another to Commit an OflFense — The Offense Defined. — A common form of attempt is the soliciting of another to commit a crime ; the act which is a necessary ingredient in every crime consisting in the solicitation.' To solicit a person to undertake a larceny ; to incite a servant to steal his master's goods, — are severally indictable misdemean- ors.* § 105. Words Imputing the Offense. — The-f olio wing words, phrases and sentences charging the commission of the crime of solicitation have been held actionable in themselves: (1) American cases: " M. C. and C. C. attempted to bribe H. S. to burn the wheat now stacked on my farm." ' (2) English cases: " My Lady Cockaine did offer two shil- lings to a woman with child to get her a drink to kill her child, because it was gotten by J. S., Sir Thomas Cockaine's butler." ' "Tibbott and ope Gough agreed to have hired a man to kill me, and that Gough should show me to the hired man to kill 1 Polurite v. Barrel, 1 Siderfln, 220. « State v. Avery, 7 Conn., 266. « Ctollier v. Barrel, 1 Siderfln, 373. « 1 Bishop, Crim. Law, § 757. •Woolworth V. Meadows, 5 East, 'Womao v. Circle, 29 Grat. (Va.), 463; 3 Smith, 28. 193. «Colman v. Godwin, 3 Doug., 90; * Cockaine v. Witness, Cro. Eliz., 2B. &C,,285, n. 49. FAETICULAK OFFENSES. 15] me." • " John Leversage would have robbed the house of J. S. if J. D. would have consented unto it; he persuaded J. T>. unto it, and told him he would bring him where he would have money enough." ' " Mrs. Margaret Paffle sent a letter to my master, and therein wished him to poison his wife."' §106. Subornation of Perjury — The Offense Defined.— Hawkins: By the common law it seems to be an offense of procuring a man to take a false oath amounting to perjury, who actually takes such oath. The offense has been defined by statutory enactments in nearly if not all of the states.* § 107. Words Imputing the Commission of the Offense. — The following phrases and sentences charging the commission of the crime of subornation of perjury have been held action- able in themselves: English cases: " Thou hast procured one Smith to come thirty miles to commit perjury before My Lord Winchester, and hast given him ten pounds for that purpose." ^ " Harri- son got a witness to forswear himself in such a cause. You or he hired one Bell to forswear himself." ^ " He is a subor- ner of perjury."' " You have caused this boy to perjure him- self." » § 108. Watering Milk. — " A.'s milk is w^atered, and the watering of his milk when brought to the factory is a loss to me." Under a Wisconsin statute making it an offense punish- able with fine and imprisonment in the county jail to know- ingly furnish watered milk to a factory to be manufactured into butter, these words are actionable.' 'Tibbott V. Haynes, Cro. Eliz., 191. 'Gurdon v. WintderfluBh, Cro. 2 Leversage v. Smith, Cro. Eliz., Eliz., 308. 710. « Bridges v. Playdel, Brown & » Paffie V. Mondf ord, Cro. Eliz. , 747. G. , 2. <3Bi8hop,Crim. Law, §§1197, 1199. 'Geary v. Bennett, 53 Wis., 444; 'Harris t. Dixon, Cro. Jac, 158. 10 N. W. Eep., 602. 'Harrison ▼. Thornborough, 10 Mod., 106. CHAPTER YII. IMPUTATION OF A WANT OF CHASTITY, OR THE COMMISSION OF ADULTERY OR FORNICATION. § 1. A Result of Statutory Enactments. 2. Adultery — The Offense Defined. 3. Fornicatioa — The Offense Defined. 4. A Prostitute — The Term Defined, 6, Certainty of the Imputation. 6. Illustrations — Digest of American Cases. 7. Sufficiency of the Imputation. 8. Illustrations — General Digest of American Cases. 9. The English Law. 10. Exceptions to the rule. 11. Illustrations — Digest of English Cases. 12. Special Damage under the English Law. 13. Illustrations — Digest of English Cases. § 1. The Result of Statutory Enactments. — Throughout the United States, with perhaps a single exception, an imputa- tion of a want of chastity to a female, married or unmarried, or the commission of adultery or fornication, is actionable in itself without proof of special damage, and in Massachusetts it seems to be actionable to charge a woman with being drunk.' For these salutary provisions of the law we have to thank the wisdom of our legislatures rather than the wisdom of the com- mon law. § 2. Adultery — The Offense Defined. — In those states which make adultery a criminal offense, without defining it, sexual intercourse between a married woman and a man other than her husband is held by all authorities to constitute the crime; and in some of the states this is held to be an exclusive f definition of the offense, on the ground that the gist of the crime is the danger of introducing spurious heirs into the family. In other states, however, it is held that the offense is committed by sexual connection between a man and a woman, one of whom is lawfully married to a third person, and that whether the married person is a man or woman makes no difference.'' It is the unlawful sexual intercourse or 1 Brown v. Nickerson, 1 Gray, 1. - Rapalje & Lawrence, Law Diet, See, also, Jacksonville Journal v. 32. Beymer, 43 111. App., 443. ADULTBRY AND FORNICATION. 15;i open and unlawful living together of a man and woman when one or both of them are married.' § 3. FornicatiOD — The Offense Defined.— The carnal and unlawful intercourse of an unmarried person with the opposite sex.* The term is derived from the Latin fornicdtus, vaulted, arched ; fornwatwnem, an arching over — iroxa fornix, an arch or vault, a brothel — [as being at Rome usually under ground] : to commit lewdness, as between unmarried persons. Foe'ni- ca'tion, n. -kd'shun, commerce between unmarried persons; figuratively, idolatry. Foe'nicatoe, n. -ter, an unmarried man having commerce with an unmarried woman; an idolater. Fok'nica'teess, n. -tres, an unmarried woman guilty of lewd- ness. Fornication, in most countries, has been a crime brought within the pale of positive law at some period of their history, and prohibited by the imposition of penalties more or less severe; but it has always been found ultimately more expe- dient to trust to the restraints which public opinion imposes on it in every community which is guided by the principles of morality and religion. In England in 1650, during the as- cendency of the Puritan party, the repeated act of keeping a brothel or committing fornication was made felony without benefit of clergy on a second conviction. At the Eestoration, when the crime of hypocrisy seemed for a time to be the only one which, under the influences of a very natural reaction, men were willing to recognize, this enactment was not renewed ; and though notorious and open lewdness, when carried to the extent of exciting public scandal, continued, as it had been be- fore, an indictable offense at common law, the mere act of for- nication itself was abandoned " to the feeble coercion of the spiritual court, according to the rules of the canon law — a law which has treated the offense of incontinence with a great deal of tenderness and lenity, owing perhaps to the constrained celibacy of its first compilers "— Blackstone. The proceedings of the spiritual court were regulated by 27 Geo. III., ch. 44, which enacts that the suit must be instituted within eight months, and that it cannot be maintained at all after the mar- riage of the parties offending. But proceedings in the eccle- 1 Territory v. Whitcomb, 1 Mont. 2 Territory v. Wiiitcomb, 1 Mont. T 359; Hood v. Tho State, 56 Ind., T., 359; Hood v. The State, 56 Ind., 263. 263. 154 WANT OF CHASTITY. siastical courts for this offense have now fallen into entire desuetude (Stephen's Com., iv., 347). In Scotland, shortly after the Eeformation, fornication was prohibited by what Baron Hume calls " an anxious statute of James VI." (1567, ch. 13), entitled " Anent the Filthie Yice of Fornication, and Punish- ment of the samin." This act, passed in the same parliament by which incest and adultery are punished with death, pro- vides that the offender, whether male or female, shall pay for the first offense a fine of £40 Scots, and shall stand bareheaded, and fastened at the market-place, for the space of two hours; for the second, shall pay a fine of 100 merks, have the head shaven, and shall be exposed in the same public manner; and for the third, pay a fine of £100, be thrice ducked in the foulest pool of the parish, and be banished the town or parish forever. There is but one instance of this statute having been enforced by the court of justiciary, which occurs, as might be supposed, during the government of the Protector in Scotland.' §4. A Prostitute — The Term Defiued.— On the trial of an indictment in the Butler county district court, Iowa, for a libel in charging that one L. P. aided her daughter, M. R., in carrying on the business of a. prostitute, the court, in charg- ing the jury, among other matters stated : " To justify, under the charge, the defendant should prove that M. R. carried on the business of a prostitute in the house in question, and was aided by L. P. It would not be enough to show that M. R, in the house in question, had illicit commerce with one person, but it should go further and show that she submitted her per- son to illicit sexual intercourse with various persons. It need not be indiscriminately with all persons, but it should go fur- ther than incontinence with one or two persons; and it should be shown that L. P. knowingly aided in the business of prosti- tution." On appeal in the supreme court Seevers, J., said: " The question is whether a prostitute, or one who carries on the business of such, has been correctly defined. The thought of the instruction seems to be that M. R. must have submitted her person to illicit sexual intercourse with various persons, and that intercourse with one or two persons would not be sufiBoient. Now, as we understand, the jury was told as a 1 Alden's Cyclopedia, title Fornicate, ADULTERY AND FOENICATION. 15y matter of law that the acts aforesaid would not be sufficient to constitute M. R a prostitute. It is certainly true, we think, that a woman may be a prostitute and carry on the business of such if she so holds herself out to the world. Her house may be so designated by a sign as to make this clearly apparent. She may upon the street, or in other public or private places, so conduct herself as to make it clear that she is a prostitute and that such is her profession. It is not essential, therefore, that she should have 'submitted her person to illicit sexual intercourse with various persons,' and that incontinence with one or two persons ' would not be sufficient ' to show she was a prostitute. In other words, the accompanying circumstances are important, and it is not for the court (under the Iowa stat- ute) to say that sexual intercourse alone is or is not sufficient to establish this woman to be a prostitute." > § 5. Certainty of the Imputation. — It is not necessary that the words should make the charge in express terms. They are actionable if they consist of a statement of matters which would naturally and presumably be understood by the hearers as a charge of the ofifense. There is no offense which can be conveyed in so many multiplied forms and figures as that of incontinence. The charge is seldom made, even by the most vulgar and obscene, in broad and coarse language. If the lan- guage used is such that in its ordinary acceptation a person of ordinary understanding could not doubt its signification it will be prima facie sufficient.^ § 6. IIlnstratioQS — Digest of American Cases. — 1. A Massachusetts Case (1829). Jennett Miller sued Daniel Parish for slander. The declaration, after averring a proper colloquium, charged the defendant with saying : " Bagg thinks it a hard matter for any one to have intercourse with his niece; but I know." Parker, C. J., refusing to follow the rule laid down in Brooker v. CoflSn as to such a charge being action- able, held the imputation suflScient. Miller v. Parish, 35 Mass., 384. § 7. Sufficiency of the Imputation. — Under statutes mak- ing it slander to falsely charge a woman with fornication or adultery it is not essential that the charge should be made in direct terms. It is sufficient in law if the words used are such 1 State V. Rice, 56 Iowa, 432; 8 N. v. Hudson, 44 Ga., 568; Proctor v. W. Rep., 343. Owens, 18 Ind., 21; Walton v. Sin- aStroebel v. Wheney et al., 31 gleton, 7 S. & R. (Penn.), 449; Ranson Minn., 384; 18 N. W. Rep., 98; Wool- v. MoCurley, 140 111., 626. worth V. Meadows, 5 East, 463; Lewis 156 WANT OF CHASTITT. as impute fornication or adultery, and are so understood by those who hear them.' § 8. Illustrations — General Digest of American Cases.— 1. In an Indiana case, decided in 1887, the alleged cause of action given in the complaint was this : " I know all about that case. While she was out there claiming to be the wife of G. W. F., she was back here claiming to be my wife." It was held the court did right in sustaining a demurrer, as the words did not imply a want of chastity, and were not actionable in themselves. Funk v. Beverly (Ind.), 13 N. E. Rep., 573; citing Emerson v. Morrel, 55 Ind., 265; Schurk v. Kollman, 50 Ind., 386. 2. To charge another with fornication is slanderous in itself. Page v. Murvin, 54 Conn., 436. 3. Words imputing fornication or adultery to a woman are *3tionable under the Indiana statute, as at common law. Buscher v. Scully, 107 Ind., 346. 4. To falsely speak of a married woman as the paramour of a man not her husband charges her with a want of chastity, and is actionable in it- self. McKinney v. Roberts, 68 Cal., 193. And so to say of a woman she is a " bad" woman, etc., is actionable. Kedrolivansky v. Niebaum, 70 Cal., 216. 5. Calling a woman a whore is actionable in itself. Belck v. Belck, 97 Ind., 73. So to call a married woman a prostitute. Klewin v. Bauman, 53 Wis., 244. But to say of a married woman, "She has been lying on the lounge with a male boarder," does not amount to a charge of fornication or adultery under the statute of Illinois, and therefore is not actionable. Koch V. Heidemau, 16 111. App., 478. 6. The words " those people upstairs keep a whore-house" gives a cause of action to one showing himself to be one of those people upstairs. Cook V. Rief, 53 N. Y. Super. Ct., 303. 7. It is actionable as imputing a want of chastity to say of a person "he was going to run away on account of J. S. being in a bad fix, and that a certain woman had got medicine of a doctor, and that she [J., the plaintiff] had become all right," when spoken of an unmarried female and of her character for chastity as amounting to a charge that she had been guilty of fornication, and had been in a state of pregnancy. Wilson v. Barnett, 45 Ind., 163. And so to say of a married woman " she has taken men into her bedroom," accompanied by a specification of circumstances fairly implying that it was done for the purpose of adultery. Waugh v. Waugh, 47 Ind., 580. 8. Words spoken of plaintiff, a married woman, and of a married ni.in other than her husband, charging them with being in a store together alone, with the curtain drawn, behind the counter, with their arms around each other, embracing, and that when discovered they seemed much con- fused, are actionable, as imputing unchastity to plaintiff; and under Code Civil Proc. N. Y., § 1906, special damage need not be alleged. Mason v. Stratton, 1 N. Y. S., 511. 1 Buscher v. Scully, 107 Ind., 346; 934; Michelson v. Lavin, 95 Ga., 565; 5 N. E. Rep., 738; Ledlie v. Wallen, 17 Barr v. Birkner, 44 Neb., 197; Hem- Mont., 150; Brown v. Moore, 90 Hun, mens v. Nelson, 138 N. Y., 517; Noyes 109;Blakev. Smith, 34 Atl. Rep., 995; v. Hall, 63 N. H., 594; Freeman v. Douglass v. Douglass, 38 Pac. Rep.. Sanderson, 133 Ind., 261 ADULTERY AND FORNICATION. 157 9. The words, "Go over to my office. My wife and her mother are par- ticular what company they keep. They do not wish to be annoyed by such characters as you," — spoken to a woman, are not slanderous," as they do not impute to her a want of chastity. McMahon v. Hallock, 1 N. Y. S., 313. 10. Under N. C. Code, § 3763, words written or spoken of a woman, which may amount to a charge of incontinency, are actionable, and it is not necessary to prove that they were wantonly as well as maliciously spoken. The provision of section 1113, making it a misdemeanor to attempt, in a wanton and malicious manner, to destroy reputation by such a charge has no application to a civil action. Bowden v. Bailes (N. C), 8 S E Rep 342. 1 1. To say of a married woman that she is a prostitute is necessarily to impute to her the guilt of adultery, and, as under the Criminal Code of Oregon adultery is indictable and punishable, such words charge a crime and are actionable per se. Davis v. Sladden (Or.), 21 Pac. Rep., 140. 12. To call a married woman a " whore," or to accuse her of having committed prostitution with men in the bushes, is actionable in itself. Rhoads v. Anderson (Pa.), 13 Atl. Rep., 833. 13. The words charged were: " I know all about that case. While she was out there claiming to be the wife of George W. Funk, she was back here claiming to be my wife." Held, not actionable in itself. Funk v. Beverly (Ind.), 13 N. E. Rep., 573. 14. It is no defense to an action for slander by words imputing unchastity to a woman to show that the defendant spoke the words to her, and was led to do so by her general conduct, and especially by her deportment with a particular man, believing the same to be true. In such action evidence that the plaintiff's general reputation is bad independently of the slander of which she complains, and that it was bad ten years before, and at an- other place, is admissible in mitigation of damages, although no such ground of defense is set up in the answer; but evidence of particular in- stances of her miscondact is not admissible. Parkhurst et ux. v. Ketchum, 88 Mass., 406. 15. In an. action for slander, if the slanderous words charged are that the plaintiff, a married woman, is a "bad woman,'' a "bitch"' and a " whore," it is for the jury to determine the sense in which the word "bad" is used; and an instruction that for that purpose "the jury may take into account the accompanying words and surrounding facts" is not open to exception. Riddell v. Thayer, 13 Lathrop (127 Mass.), 487. 16. In a Massachusetts case (1881) the declaration alleged that the de- fendant, on November 10, 1879, at Springfield, "publicly, falsely and ma- liciously accused the plaintiff of the crime of adultery by words spoken of the plaintiff to one Mrs. W. B. substantially as follows, to wit : " Mr. H. A. was intimate with his brother's' wife for a number of years [meaning thereby .that the plaintiff had committed adultery with his brother's wife for a number of years, meaning the wife of L. A.]." The defendant de- murred to the declaration on the ground that it did not state a legal cause of action. The superior court sustained the demurrer and ordered judg- ment for the defendant, and the plaintiff appealed. Endicott, J. : " The demurrer was properly sustained. The words charged in the declaration 158 WANT OF CHASTITY. as spoken by the defendant do not in themselves impute or imply the commission of a crime. They merely state that the plaintiff was intimate with his brother's wife for a number of years. If the plaintiff intended to prove that the words, as used by the defendant, charged him with the commission of adultery with his brother's wife, he should have alleged the facts, circumstances or conversation in connection with which they were spoken, and which give to them this special and peculiar meaning. The innuendo is wholly insufficient for that purpose ; it does not enlarge the meaning of the words beyond their natural import. It must appear from the declaration that the words used are actionable.'' Adams v. Stone, 131 Mass., 433. 1 7. Where the words charged without a colloquium or allegation of spe- cial damages were in German and spoken of a married woman, and trans- lated, "She has been lying on the lounge with a male boarder," it was held that they were not actionable at common law ; and under the statute of Illinois, which provides "that if any person shall falsely use, utter or publish words which in their common acceptation shall amount to charge any person with having been guilty of fornication or adultery, such words BO spoken shall be deemed actionable, and he shall be deemed guilty of slander,'' do not amount to a charge of fornication or adultery. Koch v. Heidman, 16 Brad, ail-), 478; E. S. 111. 1887, 1216. 18. The words spoken of a woman, that she " had acted the whore," are actionable. Such words are equivalent to charging that she has been guilty of fornication or adultery as she was single or married, and they are action- able of themselves without colloquium or innuendo. Schmisseur v. Krie- lich, 93 111., 348. 19. In an action for charging the plaintiff with having committed forni- cation, where the plea of justification averred that plaintiff had been guilty of fornication, without averring any time, it was error in the court to restrict the proof of her having committed fornication two years before the words were spoken by defendant. The plea not being limited as to time, the proof should not have been. Proof of the truth of the plea without reference to when the act was committed was pertinent to the issue, and.should have been admitted. Stowell v. Beagle, 57 111., 97. 20. In an action for slander, the alleged publication being that plaintiff, an unmarried female, was unchaste, and that she had become pregnant and had committed an abortion, the defendant filed a plea of justification, and moved the court for a rule requiring the plaintiff to submit her person to a medical examination, for the purpose of furnishing evidence under defendant's plea of justification. The rule was refused, and on appeal the supreme court said : " We are not cited to any case where any court has held such an examination to be proper, and we think none can be found. One should not publish and circulate slanderous charges against a young unmarried female, as proven in this case, without being able to substantiate them when called upon to do so, without calling upon the court to aid in the search for evidence in his behalf by ordering and subjecting her to an indelicate examination of her person, with the hope of obtaining some in- formation advantageous to the defense, and call to his aid the power of the court as a means of humiliating her still more. When one voluntarily as- ADULTEET AND FORNICATIOIT. 159 serts a slanderous charge against another, and defends by alleging the truth of his assertion, he must be able to substantiate the truth of the charge without invading the privacy of the person about whom the charge is made. The court very properly refused to make the order requiring the plaintiff to submit her person to an examination." Kern v. Bridwell, 119 Ind., 236, 21 N. E. Rep., 634. 21. The words that " Malvina [the plaintiff] has been to snare a young one " fairly convey the idea that she has committed the offense of fornica- tion, and are actionable. Patterson v. Wilkinson, 55 Me., 43. 22. It is actionable to charge an unmarried woman with having com- mitted fornication. Miller v. Parish, 8 Pick. (Mass.), 394. To the contrary, Stanfield v. Boyer, 6 Har. & J. (Md.), 348. 23. To say of a woman that she "has gone down the river with two whores to the goose-house " is not actionable, unless a colloquium showing what kind of a house is meant. Dyer v. Morris, 4 Mo., 314. 24. To publish falsely and maliciously of a woman that "she has a child," with the intention of charging her with having been guilty of for- nication, is actionable under the Missouri act of 1835. Moberly v. Preston, 8 Mo., 463. 25. The words alleged to have been used by the defendant in an action of slander, that "he, the defendant, had had sexual intercourse with the plaintiff at divers different times," were held actionable in themselves. Adams v. Rankin, 1 Duv. (Ky.), 58. 26. Words charging a woman with a violation of chastity are actionable in themselves. Fristie v. Fowler, 3 Conn., 707; Rodebaugh v. HoUings- worth, 6 Ind., 339; Smalley v. Anderson, 2 T. B. Mon. (Ky.), 56; Wilson v. Robbins, Wright (Ohio), 40. 27. In an action by a/e7ne sole against husband and wife for the following words spoken by the wife : " Dr. Eddy made an appointment with Elizabeth Cunningham [meaning the plaintiffj, scaled the walls, and went to bed to her [meaning the plaintiff], at Mrs. Reperton's house " (thereby meaning that the plaintiff had committed fornication), it was held that the words were actionable under the statutes of Indiana. Shields v. Cunningham, 1 Blackf. (Ind.), 86. 28. Words which in their common acceptation amount to a charge of fornication are slanderous, and no colloquium or innuendo is necessary. Elam v. Badger, 23 lU., 498. 29. To say of a woman, " She is not chaste, and I have kept her; I have had criminal intercourse with her," or " I have had sexual intercourse with lier," does not charge an offense made indictable by the statute of Alabama, imposing a fine " for any man and woman to live together in adultery and fornication," and are therefore not actionable per se. B«:ry v. Carter, 4 Stew. & P. (Ala.), 387. 30. The declaration alleged that the defendant said of the plaintiff, " Mrs. Edwards has raised a family of children by a negro," without any averment of other circumstances. Held, that the words did not necessarily amount to a charge of fornication and adultery. Patterson v. Edwards, 7 111. (2 Gilm.), 730. 31. Words charging a woman with fornication or adultery, at a time 160 WANT OF 0HA8TITT. when neither of those crimes were indictable, were held not to be action- able. Dukes V. Clark, 2 Blackf. (Ind.), 30. 32. In an action of slander brought by A. and Mary A., his wife, for the following words charged to have been spoken of the wife, and of and con- cerning her character for chastity : "Have you heard that B. was hunting up a story in circulation about C. and Mary A." [meaning, etc.] "being Been in the woods together? I saw them in the woods together myself,' etc. " If you had seen wliat I have you would feel satisfied in your mind. God knows, and I know, that they are intimate;" thereby meaning that said Mary had been guilty of adultery with C, — it was held that the words were not actionable unless they were spoken in a conversation about the wife's character for chastity. Eicket v. Stanley, 6 Blackf. (Ind.), 169. 33. In an action brought in Indiana for such words it will be presumed, until the contrary be proved, that they are spoken in that state. Worth v. Butler, 7 Blackf. (Ind.), 251. 34. Words charging a woman, never married, with " having a child and buried it in the garden," amount to a charge of fornication, and are there- fore actionable in Indiana by statute. Worth v. Butler, 7 Blackf. (Ind.), 251. 35. The plaintiff in a slander suit proved the defendant said of her that "B. told him that on Sunday, at a camp-meeting, he either scared or drove Jane Owens [plaintiff] and a man, supposed to be J. D., up from behind a log, he and another, supposed to be J. D. ; that they broke and ran, and that he, B., got her parasol and handkerchief, and if anybody did not believe him he could come and see them." It was held that these words were slanderous and actionable in themselves. Proctor v. Owens, 18 Ind., 21. 3(5. Words charging a single woman with having two or three little ones by a man, if intended to impute the crime of fornication, followed as a consequence by two or three bastard children, are actionable. Symonds v. Carter, 33 N. H., 458. 37. Words in themselves involving a charge of adultery are, by Missouri Revised Code, actionable without alleging special damages. Stieber v. Wensil, 19 Mo., 513. 38. Under a Kentucky act of 1811, a man may maintain an action of slander for words charging him with having been guilty of fornication. Morris v. Barkley, 1 Litt. (Ky.), 64 See, also. Philips v. Wiley, 2 Id., 153. But words spoken charging a female with want of chastity were not ac- tionable previous to the act of 1811. liTGee v. Wilson, Litt. (Ky.) Sel. Cas., 187. 39. In a count in slander, the words charged with the accompanying averment imputed the crime of fornication, and as they were alleged to have been spoken of a female it was held they were actionable. Abshire V. Cline, 3 Ind., 115. 40. TLe words "P. E. was one week in L. in a whorehouse" were held to imply a charge of whoredom. BlackenstafE v. Perrin, 37 Ind., 537. 41. Charging a single woman with being with child is sufficient, In New Jersey, to sustain an a-jtion for slanderous words. Smith v. Minor, 1 N. J. L. (Coxe), 16. 42. The words, "which amount to a charge of incontinency," and from ADULTERY AND FORNICATION. 161 which an action of slander is given to a woman by the North Carolina act, must import not merely a lascivious disposition, but the criminal fact of adultery or fornication. M'Brayer v. Hill, 4 Ired. (N. C.) L., 136. 43. Words charging a married woman with seating herself upon the lap of a man other than her husband, and desiring him to have carnal inter- course with her, and insisting upon it, do not charge her with ihe act of adultery, and are not actionable in themselves. K. v. H., 20 Wis., 239. 44. The word "bitch," when applied to a woman, though a word of re- proach, does not charge the crime of adultery or prostitution, and is not actionable. K. v. H., 20 Wis., 239. But to call a woman a " bitch," when it is meant and understood to import whoredom, is actionable as imputing a want of chastity. Logan v. Logan, 77 Ind., 558. 4o. Charging defendant, in Pennsylvania, totidem verbis, with fornica- tion, though he may be a married man, is slanderous. Walton v. Sigleton, 7 Serg. & R. (Pa.), 449. 46. To say of a woman that " she is kept by a man " is actionable as a slander under the act of North Carolina. M'Brayer v. Hill, 4 Ired. (N» C.) L., 136. 47. In a suit for libel the words set out were: " We see in the columns of the Macomb ' Journal' of the 24th an article under the blood-and-thun- der heading of ' Middletown Mass Meeting, and Excitement, over the Burial of a Colored Child! A Fight Proposed, and the Wetting Down of the Bellig- erents.' The colored child in question is supposed to be the offspring of a Mr. Snyder, formerly of Macomb. The ' Journal ' article, from beginning to end, is a wilful lie. The author says the meeting was held in a black- smith shop — a lie I The truth is Snyder lied to get his ' miscegen ' in the graveyard ; and when this was found to be the case the citizens of Middle- towui both republicans and democrats, met at the grave-yard to investigate the matter; and the circumstances showed that Mr. Snyder, with ridiculous intentions, had misrepresented the facts concerning the child^ and thereby obtained permission to bury his illegitimate ' production ' in oin: burying- gi-ound." It was held that the words did not, in their common acceptation and without the aid of extrinsic matters, impute to the plaintiff an act of adultery, much less with the negro woman to whom they were alleged to apply. Strader y. Snyder, 67 111., 404. 48. An action for charging a woman with unchastity cannot be defended by proof that the defendant had only reported what be heard, or by proof of particular acts or suspicions of unchastity ; but only by a justification, duly interposed by plea or notice, on the ground that plaintiff was uncbaste, supported by evidence of general reputation. Proctor v. Houghtaling, 37 Mich., 41. 49. The circulation of vile, defamatory and slanderous language concern- ing the chastity of a woman is not wholly excused by a protest at the time of disbelief, or by a showing that those who heard the slander did not be- lieve it to be true. Such conduct is actionable, and the question of the responsibility is one for the jury, and not to be solved by any presumption of harmlessness. Burt v. McBain, 29 Mich., 260. 60. Where the imputation of a want of chastity in a female is actionable in itself under statutory provisions it is competent in actions for such.slan- 11 162 WANT OF CHASTITY. ders, without any averments of special damages, to prove that in conse- quence of the slander the plaintiff was excluded from the society in which she formerly moved, and was affected in mind and health. Burt v. McBain, 29 Mich., 260. 61. Words spoken concerning a woman, which, although not slanderous in themselves, have at the time when and at the place where spoken a provincial or local meaning imputing to her the keeping of a bawdy-house, and which are spoken in such provincial sense and are so understood by the persons to whom they are spoken, are actionable. Liffrant v. Liffrant, 53Ind., 273. 52. The word " bitch," when applied to a woman,- does not in its com- mon acceptation import whoredom in any of its forms, and therefore is not slanderous; nor can the innuendo change its meaning. Schwick v. Kadman, 50 Ind., 336; Craig v. Pyles (Ky.), 39 S. W. Rep., 33. 53. To say of a married woman "she is pregnant,'' or "she is in a fix," meaning by local usage that she is pregnant, is not actionable ; but if spoken of an unmarried female such words are actionable. Acker v. McCulIough, 60 Ind., 447. 54. In Maryland, in an action by a married woman for words touching her character for chastity, such words are not actionable in themselves un- less they impute to her the commission of an offense which subjects her to an indictment and corporal punishment. But words charging her with keeping a bawdy-house are actionable in themselves. Griffin v. Morse, 43 Md., 246. 55. To say of a woman, " She was getting fat — some one had slipped up on the blind side of her," is not actionable without a special averment of the meaning of the words ; but they may be shown to be actionable by dis- tinct averments in the complaint that in the particular instance they were used with intent to convey a charge of fornication and pregnancy, or that in the locality where they were spoken they had acquired that sense. Emmersoh v. Marvel, 55 Ind. , 265. 56. Proof that a woman has had sexual intercourse with her affianced does not constitute a justification for calling her a whore, and to repel the ■assault upon her character she may introduce evidence to show that her general reputation for chastity is good. Sheehen v. Cockley, 43 Iowa, Wi. 57. In ail action under the laws of New York, 1871, chapter 219, by H. against L., for words imputing unchastity to H., she testified that L. ac- cused her of having had a venereal disease. L., after introducing evidence tending to show improper intimacy between H. and W., offered to prove that H.'s son had stated at L.'s house that W. had such a disease. But it was held properly excluded, as it did not tend to prove the charge was true or that L. had heard the reports per se leading him to believe it true. Hat- field V. Lasher, 81 N. Y., 246. 58. Under the statutes of Arkansas a complaint which alleges that the defendant charged plaintiff with fornication or adultery is sufficient with- 'out an allegation of special damage. Roe v. Chitwood, 36 Ark., 210. 59. A false imblication concerning a person that there are " suits pending against him to the effect that he has put himself in unlawful relations with the wivesof other men '? is actionable in itself without the innuendo to con- nect them with extrinsic matter. Broad v. Duester, 8 Biss. C. Ct., 265. ADtJLTEET AND FOENICATION. 163 60. Words ihtending to convey the idea that one had been guilty of for- nication, and in fact conveying that idea, are actionable if maliciously ■uttered. Branstetter v. Darrough. 81 Ind., 537. 61. In Texas words imputing merely a want of chastity to a female are not actionable in themselves. Special damages, however slight, will sus- tain an action. Ross v. Fitch, 58 Tex., 148. 62. Whether or not a woman is a prostitute is a question of fact, and in determining it a jury may consider her general character. State v. Rice, 56 Iowa, 431. 63. Upon the trial of an action for charging the plaintiff with illicit in- tercourse with a certain man, the plaintiff's general bad character for chas- tity may be shown by way of defense, but not particular acts of unchastity. Hallowell v. Guntle, 83 Ind., 554. 64. In an action for charging the plaintiff with unchastity it was held that the defendant might prove, in mitigation of damages, the circumstances upon which he based his charge, such as the physical appearance of preg- nancy in plaintiff, and the fact of her being with a man under suspicious circumstances. Doe v. Roe, 33 Hun (N. Y.), 628. 65. The words "she is a bad character, a loose character" are slander- ous, involving a charge of fornication, which may be sufficiently averred by an innuendo without a colloquium. Vanderlip v. Roe, 23 Pa. St., 83. 66. It is not actionable to express a supposition or belief that one went to a place for the purpose of persuading another to commit adultery with him. Dickey v. Andros, 32 Vt., 55. 67. In a young woman's action for words charging unchastity, the jury in estimating the damages may consider evidence of her consequent wounded feelings, enfeebled health and incapacity to perform labor. Zeliff V. Jennings, 61 Tex., 458. H58. When the plaintiff testififes that she is virtuous, defendant may show that she has permitted liberties, following that of sexual intercourse, to be taken with her. Dugald v. Coward, 96 N. C, 368. § 9. The English Law.— By the law of England words im- puting unchastity or adultery to a woman, married or unmar- ried, however gross and injurious they may be, are not action- able, unless she can prove that they have directly caused her special damage. The English law on this point has often been denounced by learned judges. Lord Campbell said : " I may lament the un- satisfactory state of our law according to which the imputa- tion by words however gross, on an occasion however public, upon the chastity of a modest matron or a pure virgin, is not actionable without proof that it has actually produced special temporal damage to her." ' Lord Brougham said : " Instead of the word ' unsatisfactory ' I should substitute the word 'bar- 1 Lynch v. Knight and wife, 9 H. L. C, 593; 5 L. T., 29, 16i WANT Off eHASTITT. barous.' " ^ Odgers says : " Two explanations may be assigned for the undesirable state of our law on this point: (1) In the days when our common law was formed every one was much more accustomed than they are at present to such gross lan- guage, and epithets such as " whore" were freely used as gen- eral terms of abuse without seriously imputing any specific act of unchastity. (2) The spiritual courts had jurisdiction over such charges, and though they could not award damages to the plaintiff, they could punish the defendant for the benefit of his soul.'' In Scotland a verbal imputation of unchastity is ac- tionable without proof of special damage. The hardship is increased by the rules relating to special damage, which are peculiarly stringent in the case of a married woman. That her husband has sustained special damage in consequence of the words will not avail for her. And unless she carry on a special trade or business of her own it is almost impossible for her to sustain any special damage to herself, for all her property is either in law her husband"s or is safely vested in trustees for her, and cannot possibly be affected by defamatory words. That she loses the society of her friends is no special damage; and Lord Wensleydale denied that the loss of the consortium of her husband could constitute special damage.' § 10. Exceptions to the Rule. — The only exception is in the case of actions brought in the local courts of the city of London, the borough of South wark,* and, it is said, of the city of Bristol,^ for words spoken within the jurisdiction of those courts. It was formerly the custom in those localities to cart and whip whores, tingling a basin before them. Hence to call a woman " whore " or " strumpet " * or " bawd," ' or her husband a " cuckold," » was supposed to be an imputation of a criminal offense to the female plaintiff and therefore action- able. But no action will lie in the high court of justice for such words, since the custom has never been certified by the 1 Jones V. Heme, 3 Wils., 87; Rob- ^Sid., 97. erts and wife v. Roberts, 5 B. & S., spower v. Shaw, 1 Wils., 63. 384;33L. J., Q. B., 349; lOJur. (N. S.), « Cook v. Wingfield, 1 Str., 535. 1037; 13 W. R,, 909; 10 L. T., 602. ' 1 Vin. Abr., 39& 2 Odgers on Libel and Slander, 88. ^vioars v. Worth, 1 Str., 471. ' Lynch v. Knight and wife, 9 H. L. C, 577. ADULTERY AND FOENIOATION. 165 recorder and must therefore be strictly proved. The plaintiffs failed to prove such a custom in 1782 ;i and it would be still more difficult to do so in the present day. The city courts used formerly to take judicial notice of their own custom ; but it is doubted if they would do so now, the custom being en- tirely extinct.' § 11. Illustrations — Digest of English Cases.— 1. The defendant falsely imputed incontinence to a married woman. In consequence of his words she lost the society and friendship of her neigh- bors, and became seriously ill and unable to attend to her affairs and busi- ness, and her husband incurred expense in curing her and lost the society and assistance of his wife in his domestic affairs. Held, that neither hus- band nor wife had any cause of action. AUsop and wife v. AUsop, 5 H. & N., 53.1; 29 L. J., Ex., 315; 8 W. E., 449; 6 Jur. (N. S.), 433; 36 L. T. (O. S.), 290. See Dalies v. Solomon, L. R., 7Q. B., 112; 41 L. J., Q. B., 10; 20 W. R., 167; 25 L. T., 799; Riding v. Smith, 1 Ex. D., 91; 45 L. J., Ex., 281; 34 W. R., 487; 34 L. T., 500. 2. The defendant told a married man that his wife was " a notorious liar " and " an infamous wretch," and had been all but seduced by Dr. C. of Ros- common before her marriage. The husband consequently refused to live with her any longer. Held, no action lay. Lynch v. Knight and wife, 9 H L., 577; 8 Jur. (N. S.), 734; 5 L. T., 291. 3. Where the defendant asserted that a married woman was guilty of adultery, and she was consequently expelled from the congregation and bible society of her religious sect, and was thus prevented from obtaining a certificate, without which she could not become a member of any similar society, held, no action lay. Roberts and wife v. Roberts, 5 B. & S., 384; 33 L. J., Q. B., 349; 10 Jur. (N. S.), 1037; 13 W. R.. 909; 10 L. T., 603. 4. To say of a young woman that she had a bastard is not actionable with- out proof of special damage, " because it is a spiritual defamation, punish- able in the spiritual court." Per Holt, G. J., in Ogden v. Turner, Holt, 40 ; 6 Mod., 104; 3 Salk., 696; Dwyer v. Meehan, 18 L. R., Ir., 138. 5. To call a woman a " whore " or " strumpet " is not actionable, except by special custom, if the action be tried in the cities of London and Bristol. "To maintain actions for such brabling words is against law." Oxford et nx. v. Cross (1599), 4 Rep., 18; Gascoigne et ux. v. Ambler, 2 Ld. Raym., 1004; Power v. Shaw, 1 Wils., 62 (Bristol). It is not actionable to call a woman a "bawd" (HoUingshead Case (1683), Cro. Car., 329; Hixe v. Hol- lingshead (1632), Gro. Car., 261), unless it be in the city of London. Rily v. Lewis (1640), 1 Vtn. Abr., 396. iStainton et ux. v. Jones, 2 Selw. p. 380; Theyer v. Eastwick, 4 Burr., N. P., 1205 (13th ed.). 2033; Brand and wife v. Roberts and 2 Oxford et ux. v. Cross (1599), 4 wife, 4 Burr., 2418; Rily v. Lewis, 1 Rep., 18; Hassell v. Capcot (1639), 1 Vin. Abr., 396; Vicars v. Worth, 1 Vin. Abr., 395; 1 Roll. Abr., 36; Str., 471; Hodgkins et ux. v. Cor- Cook V. Wingfield, 1 Str., 555; Wat- bet et ux., 1 Str., 545; Roberts v. 8onv. Gierke, Comb., 138, 139; notes Herbert, Sid., 87: S. C. sub. nom. 114] and [96] to 1 Dougl. by Frere, Cans v. Roberts, 1 Keble, 418. 166 WANT OF CHA3TITT. G. The words " You are living by imposture; you useJTio walk St. Paul's phurcbyard for a living," spoken of a woman with the intention of imput- ing that she was a swindler and a prostitute, are not actionable without special damage. Wilby v. Elston, 8 C. B., 143; 18 L. J., C. P., 320; 13 Jur., 706; 7 D. & L., 143. So to say of a married man that he has " had two bastards and should have kept them" is not actionable, though it is averred that by reason of such words "discord arose" between him and his wife, and they were likely to have been divorced." Barmund's Case, Cro. Jac, 478; Salter v. Browne, Cro. Car., 436; 1 Roll. Abr., 87. § 12. Special Damage under the English Law.— All words, if published without lawful occasion, are actionable if they have in fact produced special damage to the plaintiff, such as the law does not deem too remote. "Any words by which a party has a special damage " are actionable.' " Undoubtedly all words are actionable if a special damage follows." ' § 13. Illustrations — Digest of English Cases.— 1. Action by husband and wife, who kept a victualing-house, against the defendant for saying to the wife, "Thou art a bawd to thy own daugh- ter," whereby J. S. that used to come to the house forbore, etc., to the damage of both. After a verdict for the plaintiff, judgment was stayed " because the words are not actionable, except in respect of the special loss, which is the husband's only." Coleman and wife v. Harcourt, 1 Lev., 140. 2. The female plaintiffl lived separate from her husband and kept a board- ing-house. The defendant spoke words imputing to her insolvency, adul- tery and prostitution ; some of her boarders left her in consequence, and certain tradesmen refused her credit. After verdict for the plaintiff, judg- ment was arrested on the ground that the husband should have sued alone, for the words were actionable only by reason of the damage to the business, and such damage was solely his. Saville et ux. v. Sweeney, 4 B. & Adol., 514; IN. &M., 354. 3. Where words actionable in themselves were spoken of a married woman she was allowed to recover only 20s. damages ; all the special dam- age which she proved at the trial was held to have accrued to her husband, and not to her; he ought therefore to have sued for it in a separate action. He could now claim such damage in his wife's action, if joined as a co- plaintiff. Dengate and wife v. Gardiner, M. & W., 5; 3 Jur., 470. 4. Where a married woman lived in service apart from her husband, main- taining herself, and was dismissed in consequence of a libelous letter sent to her master, it was held that the husband could sue; for bis was the spe- cial dauiage. Coward v. Wellington, 7 C. & P., 531. In such a case, had the cause of her dismissal been slanderous words not actionable per se, the wife could not (before the Married Women's Property Act, 1870, at all events) have sued. She would have been held to have suffered no damage at all, her personal property belonging entirely to her husband. Per Lord Campbell in Lynch v. Knight and wife, 9 H. L. C, 589; 8 Jur. (N. S.), 724; 5 L. T., 291; Odgerson L. & S., 399, 1 Comyn's Digest, Action upon the 'Per Heath, J., in Moore v. Case for Defamation, D., 30. Meagher, 1 Taunt., 44. CHAPTER VIII. DEFAMATION AFFECTING PERSONS IN OFFICES, PROFESSIONS AND TRADES. § 1. Where the Imputation Affects Persons in OflSces, Professions and Trades. 2. The Words Must be Spoken of the Person in His Office, Profession or Trade. 3. The Rule Stated by Andrews, J. 4. Prejudice and Malice Implied. 5. Illustrations — Digest of American Cases. 6. Digest of English Cases. 7. The Words Must Touch the Party in His Office, Profession or Trade. 8. The Subject Illustrated. 9. The Words Must be Published while the Party Holds the Office, Practices His Profession or Carries on His Trade. 10. Requisites of the Imputation. 11. Imputation upon the Integrity of Persons Holding Offices of Trust. 13. Illustrations — Digest of American Cases. 13. Digest of English Cases. 14. Meaning of the Terms "Actionable perse" in Themselves, etc. — Dlustrations. 15. Imputation of a Want of Special Knowledge. 16. Illustrations — Digest of American Cases. 17. Digest of English Cases. 18. Attorneys and Solicitors. 19. Illustrations — Digest of American Cases. 20. Digest of English Cases. 21. Barristers. 22. Digest of English Cases. 23. Clergymen and Ministers of the Gospel. 24. Illustrations — Digest of American Cases. 25. Digest of English Cases. 26. Medical Men — Physicians — Surgeons — Pharmacists, 27. The Law Stated. 28. Illustrations — Digest of American Cases. 29. Digest of English Cases. 30. Other Professions and Trades — Architects, Dentists, Teachers, Sur- veyors, Mechanics, and the Like. 31. Illustrations — Digest of American Cases. 32. Digest of English Cases. 33. Imputations upon the Credit of Merchants and Traders. 34. The Extent of the Rule. 35. Persons Engaged in Occupations where Credit is Essential 36. Illustrations — Digest of American Cases. 87. Digest of English Cases. 168 DEFAMATION AFFECTING PEESONS IN OFFICES, ETO. § 38. Imputations upon the Integrity and Honesty of Mercbants'and Trad- ers. 89. Illustrations — Digest of American Cases. 40. Digest of English Cases. § 1. Where the Imputation Affects a Person in His OflHce, Profession or Business.— Defamatory words falsely spoken of a person, which impute to the party unfitness to perform the duties of an oflBce or employment of profit, or the want of integrity in the discharge of the duties of such an office or em- ployment, are actionable in themselves without proof of special damages ; and so, too, are defamatory words falsely spoken of a party which prejudice such party in "his or her profession or trade.' Next to imputations which tend to deprive a man of his life or liberty, or to exclude him from the comforts of society, may be ranked those which afl'ect him in his office, profession or means of livelihood. To enumerate the different decisions upon this subject would be tedious, and to reconcile them impossible; yet they seem to yield a general rule suffi- ciently simple and unembarrassed, namely, that words are actionable which directly tend to the prejudice of any one in his office, profession, trade or business.* So, if a person carry on any trade recognized by the law, or be engaged in any lawful employment however humble, an action lies for any words which prejudice him in the way of such trade or em- ployment. But the words must relate to his trade or employ- ment and "touch" him therein. § 2. The Words Must be Spoken of the Person in His Office, Profession or Trade. — It by no means follows that all words to the disparagement of an officer, professional man or trader, will for that reason, without proof of special damage, be action- able in themselves. Words to be actionable on this ground , must touch the plaintiff in his office, profession or trade. They I must be shown to have been spoken of the party in relation thereto, and to be such as would prejudice him therein. They 1 Pollard V. Lyon. 91 TJ. S., 235; v. Whiting, 87 Mich., 172; 49 N. W. Warnoc v. Circle, 29 Grat. (Va.), 197; Rep., 559; Tarlton v. Lagarde, 46 La. Chapin V.Lee, 18 Neb., 440; Williams Ann., 1368; Continental Nat. Bank V. Davenport, 42 Minn,, 395; 44 N. W. v. Bowdre, 92 Tenn., 723; Bradstreet Rep., 311; Cruikshank v. Gorden, 118 Co. v. Oswald, 96 Ga.,396; Giaconav. N. Y., 178; Dennis v. Johnson, 42 Bradstreet Co., 48 La. Ann., 1191; Fry Minn., 301; 44 N. W. Rep., 68; Mo- v. McCord, 95 Tenn., 678. rasse v. Brochu, 151 Mass., 567; 35 ^Starkie on Slander, 117; 3 Wils., N. E. Rep., 74; State v. Armstrong, 186. 106 Mo., 395; 16 S. W. Rep., 604; Mains ANiALISIS GF THE SITBJKCT. 16t> raust impeach either his skill or knowledge, or his official or professional conduct. His special oflBce or situation need not be expressly referred to if the charge made be such as must necessarily affect it. And in determining whetlier the words used would necessarily affect him in his office, profession or trade, regard must be had to the rank and position of the per- son and to the mental and moral requirements of the office he holds. "Words may be actionable if spoken of a clergyman or a barrister which would not be actionable of a trader or a clerk. Thus, where integrity and ability are essential to the due conduct of an office, words impugning the integrity or ability of the party are clearly actionable without any express men- tion of that office; for they distinctly imply that he is unfit to continue therein. Eut where a person does not hold any sit- uation of trust or confidence, words which merely convey a general imputation of immorality, or charge him with some misconduct not connected with his special profession or trade, will not be actionable in themselves. § 3. The Kule Stated by Andrews, J. — Where the words spoken have such a relation to the profession or occupation of the plaintifif that they directly tend to injure him in respect to it, or to impair confidence in his character or abilit}'^, when from the nature of the business great confidence must neces- sarily be reposed, they are actionable although not applied by the speaker to the profession or occupation of the plaintiff; but when they convey only a general imputation upon his character, equally injurious to any one of whom they might be spoken, they are not actionable unless such application be made.* §4. Prejudice and Malice Implied.— The rule is well set- tled that, where the defamatory words are falsely spoken or written of a person in his profession, prejudice to him and malice on the part of defamer are implied in law.'^ 1 Sanderson v. Caldwell, 45 N. Y., So. Rep., 180; Bradstreet Co. v. Os- 405. See Van Epps v. Jones, 50 Ga., wald, 95 Ga., 396. 238; Speiring v. Andrews, 45 Wis., 2 Pratt v. The Pioneer Press Co., 33 330; Cramer v. Riggs, 17 Wend. Minn., 217; 20 N.W. Rep., 87; Ingram y. (N. Y.), 209; Williams v. Davenport, Lawson, 6 Bing. N. C, 213; Folkard's 43Minn.,395:Cruikshankv.Gorden, Starkie, § 188; State v. Clyne, 53 118 N. Y., 178; Brown v. Vannaman, Kan., 8; Childers v. San Jose Mer- 85 Wis., 451 ; 55 N. W. Rep., 183; Tarl- cury Printing and Publishing Co.,- ton V. Lagarde, 46 La. Ann., 1308; 16 105 Cat, 284; 38 Pac. Rep., 903. 170 DEFAMATION AFFECTING PERSONS IN OFFICES, ETC. § 5. Illustrations — Digest of American Cases. — 1. It is actionable without proof of special damages to say of a physician, " Doctor S. killed my children. He gave them teaspoonful doses of calo- mel and they died. He gave them teaspoonful doses of calomel and it killed them; they did not live long after they took it. They died right oflE the same day,"— spoken in reference to his treatment of the children, be- cause they impute to him gross ignorance or unskilfulness, and are action- able in themselves. Secor v. Harris, 18 Barb., 425. 2. To say of a hotel-keeper " He keeps no accommodations. A person could not get a decent bed or meal there if he tried." Trimmer v. Hiscock, 37Hun(N. Y.), 364. 3. Or, " Do not go to his house to bring disgrace on yourselves and me ; do not go that vcay at all. He is a bad man.'' Fitzgerald v. Robinson, 112 Mass., 371. 4. To say of a mechanic " 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. Eedfield, 51 Barb. (N. Y.), 484. 5. " He keeps false books. I can prove it." Birch v. Nickerson, 17 Johns. (N. Y.), 217. 6. 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- age in his profession as the natural and probable consequence of such words. Sumner v. Utley, 7 Conn., 258. 7. Slander will lie for the speaking of words impi^ting insolvency to any one to whom credit is important in the prosecution of his business; thus, to say of a distiller " tliere is a time when men will fail, who must fail, and Ostrom's time has come," was held to be actionable. Ostrom v. Calkins, 5 Wend. (N. Y.), 263. 8. The declaration averred that plaintiff was a trader, and that defendant falsely said of and concerning him in his trade and business as a merchant that he was a villain, a rascal and a cheater. Held, that upon a motion in arrest of judgment the declaration was sufBcient in substance. Although the words are not actionable per se, yet they are of such a character that, when spoken in reference to a person in his business, they are actionable without the averment of any other extrinsic circumstance to explain them. Nelson v. Borchsenius, 52 111., 236. 9. Words spoken of one in his office, trade, profession or business which tend to impair his credit, or charge him with fraud or indirect dealings, or with incapacity, and that tend to injure him in his trade, profession or busi- ness, are actionable without proof of special damage. So to say of an archi- tect " the poor fellow is crazy," and that "his appointment [as architect of a public building] could be regarded in no other light than a public calam- ity," is actionable in itself. Clifford v. Cochrane, 10 Brad. (111.), 570. 10. Where, in answer to an inquiry, "Were there any failures yester- day? " it was said, " Not that I know of, but I understand there is trouble with the Messrs. S.," it was bolden that such words, being spoken of the plaintiffs as merchants, were actionable in themselves. Any words which in common acceptation imply a want of credit or responsibility, when ILLUSTRATIONS DIGEST OF AMERICAN CASES. 171 spoken of a merchant, are actionable. Where such words were spoken by a defendant, evidence that another person heard the report that the plaint- iifs had failed, and in consequence withdrew from them business to a large amount, is inadmissible in support of a charge for special damage unless the report thus acted upon is traced to the defendant. Sewell v. Catlin, 3 Wend. (N. Y.), 291. 11. To charge a butcher who kept a meat-market with having taken an unborn calf from a dead cow, dressed it, and sold a quarter of it to Mrs. Zimmei-man. is actionable ; but special damages may be alleged and proven in aggravation of damages. Singer v. Bender, 64 Wis., 169; 25 N. W. Rep., 903. 12. Words charging a clergyman with drunkenness, alleged to have been spoken of him in his profession, are actionable in themselves. Hayner v. Cowden, 27 Ohio St., 292. 13. During the month of February, 1822, a stranger was found dead at an inn kept by one Enoch Fowler at Rehoboth, in Massachusetts. A coroner's inquisition stated that he came to his death by intoxication. James Blan- ding composed an article for publication concerning the affair, in which he charged Fowler with having administered the liquid poison, and thus being the cause of the stranger's death. The public were warned against resort- ing to the house where such practice was allowed, and the municipal au- thorities invoked to exert their power by taking or withholding Fowler's license to keep a public house. He caused the same to be published in the Providence " Gazette," copies of which containing the publication were cir- culated in Rehoboth, where the inn was kept. The court held the publica- tion libelous as insinuating gross misconduct against Fowler, charging him directly with a violation of his duty and exposing him to a loss of his live-, lihood, so far as it depended on the reputation of his inn for regularity and order. Admitting the account of the inquisition to be correct as published, yet the additions of comments and insinuations tending to asperse Fowler's character rendered it libelous. Com. v. Blanding, 30 Mass., 304. 15. In an action for a libel where injury to one's business is alleged, the amount of his sales for the year in whch the libel was published may be shown as evidence, though it covered something previous to the publication. But the defendant should not be precluded from drawing out the facts in detail afterwards so as to enable the jury to distinguish between the busi- ness before and after the publication. Whittemore v. Weiss, 38 Mich., 348. 16. But it is not actionable, toithout proof of special damages to speak words of one who holds an office or exercises a trade or profession, unless they are spoken of and touch him in his office or calling. It is not enough that they may tend to injure him in his office or calling, unless they are spoken of him in his official or business character. So saying " there is a combined company here to cheat strangers; and 'Squire "Van Tassel has a handinit," imputesmisconduct to Van T. as a man, and not as a magistrate. So, too, " I don't see why 'Squire Van T." [a justice of the peace] " did Tiot tell me that the execution had not been returned in time, so that I could sue the constable and his bail," cannot touch Van T. in his official character. Van Tassel v. Capron, 1 Ben., 250. 17. Words spoken of a professional man are actionable only when they 172 DEFAMATION AFFEOTIN& PERSONS IN OFFICES, ETC. charge him with ignorance or want of skill in general, or a want of integrity either in general or in particular; but not when they charge him with ignorance in a particular ease. So, to say of an attorney or counselor in a particular suit, F. " knows nothing about the suit; he will lead you until he has undone you," is not actionable without alleging and proving special damage. Foot v. Brown, 8 Johns., 64. 18. The declaration charged the speaking of the following words of the plaioQtiffi in his character of a justice of the peace: " There is a combined company here to cheat strangers, and ' 'Squire Van Tassel has a hand in it.' K. A., J. G. and 'Squire Van Tassel are a set of damned blacklegs;" but it did not show that the imputation was connected with the plaintiff's official conduct. Held not actionable. Van Tassel v. Capron, 1 Denio, 350. 19. It is not actionable to charge a man with keeping false books or ac- counts unless his business necessarily leads to dealing on credit, and' the keeping of books is incident to his business. Accordingly it is held that slander will not lie for saying of a farmer, or a sawyer of lumber and dealer therein, he keeps false books of account. Eathburn v. Emigh, 6 Wend., 407. 20. The words " 'Squire Oakley is a damned rogue " were held not action- able, because they did not appear to have been spoken of him in his official capacity. Oakley v. Farrington, 1 Johnson's Cases (N. Y.), 130. § 6. Digest of English Cases. — 1. It is actionable without proof of special damage to say that a judge gives corrupt sentences (Cresar v. Curseny, Cro. Eliz., 305); to say that a clergyman had been guilty of gross immorality and had appropriated the sacrament money (Highmore v. Earl and Countess of Harrington, 8 C B., N. S., 14S); or of an attorney that he deserved to be struck off the roll (Phillips V. Jansen, 3 Esp., 634: Warton v. Gearing, 1 Vict. L. R., 0. L., 133); of a watchmaker, " he is a bungler, and knows not how to make a good watch" (Redman v. Pyne, 1 Mod., 19); of a superintendent of police that "he has been guilty of conduct unfit for publication" is not actionable, unless the words were spoken of him with reference to his office (James v. Brook, 9 Q. B., 7; 16 L. J., Q. B., 17; 10 Jur., 541); of an attorney that "he hath the falling sickness " is actionable without special damage, because that disables him in his profession (Taylor v. Perr, 1 Roll. Abr., 44); to say of a gamekeeper that "he trapped three foxes," for that would be mis- conduct in a gamekeeper (Foulger v. Newcomb, L. R., 2 Ex., 327; 36 L. J., Ex., 169; 15 W. R., 1181; 16 L. T., 595); so of an auctioneer, "You are a deceitful rascal, a villain and a liar. I would not trust you with an auo- j tioneer's license. You robbed a man you called your friend ; and not satis- fied with lOZ., you robbed him of 20i. a fortnight ago," was held actionable. Ramsdale v. Greenacre, 1 F. & F., 61; Bryant v. Loxton, 11 Moore, 344. 2. To say to the mistress of a servant girl, " You are not aware, Mrs. C, what kind of a girl you have in your service ; if you were, you would not keep her, for I can assure you she is often out with our married man." Coltman, J. , held that these words were actionable without proof of special damage; and on a motion for a new trial, Tindal, C. J., said: " The words are actionable, inasmuch as they are spoken of the plaintiff in her vocation" (Ramsey v. Webb et ux., 11 L. J., C. P., 129; Car. & M., 104); or to an inn- keeper, "Thy house is infected with the pox, and thy wife was laid of the ILLUSTRATIONS D16EST OF ENGLISH CASES. l'?3 pox;" for even if small-pox only was meant, still "it was a discredit to the plaintiff, and guests would not resort" to his house. Level's Case, Cro. Eliz,, 389; Kelly, C. B., in Riding v. Smithy 1 Ex. D., 94; 45 L. J., Ex., 281; 24W. R, 487; 34 L. T., 500. 3. To say of a clerk or servant that he had " cozened his master " (Seaman V. Bigg, Cro.. Car., 480; Reginald's Case (1640), Cro. Car., 563); of a game- keeper that he trapped three foxes, for that would be clearly a breach of his duties as gamekeeper (Foulger v. Newcomb, L. R., 2 Ex., 327; 36 L. J., Ex., 169; 15 W. R., 1181; 161,. T., 595); or of a servant girl that she had had a miscarriage and had lost her place in consequence. Connors v. Jus- tice, 13 Ir. C. L. R.,451. 4. To in any way impute insolvency or bankruptcy to any merchant or trader (Arne v. Johnson, 10 Mod., Ill ; Davis v. Lewis, 7 T. R., 17); to im- pute Immorality or adultery to a beneficed clergyman is actionable, for it is ground of deprivation (Gallwey v. Marshall, 9 Exch., 294; 33 L. J., Ex., 78 ; 2 C. L. R, 399); to impute habitual drunkenness to a beneficed clergyman (Dod V. Robinson, Al., 63; McMillan v. Birch, 1 Binn., 178); or to a master mariner in command of a vessel (Irwin v. Brandwood, 3 H. & C 960; 33 L. J., Ex., 257; 9 L. T., 772; 10 Jur. (N. S.), 370; 12 W. R., 438; Hamonv. Falle, 4 App. Cas., 347; 48 L. J., P. C, 45); or to a schoolmaster. Hume V. Marshall, 43 J. P., 136; Brandrick v. Johnson, 1 Viet. L. R., C. L., 306. 5. It would not be actionable where sobriety was not an essential qualifi- cation for the post. And to state that a clergyman or a schoolmaster was drunk on one particular occasion, and that neither in church nor in school, would not be actionable, as that alone would not necessitate hia removal from his oflBce. Anon., 1 Ohio, 83, n- ; Tighe v. Wicks, 38 Up. Can., Q. B. Rep., 470; Brandrick v. Johnson, 1 Vict. L. R., C. L., 306. 7. But it is not actionable without proof of special damages to say of an attorney, "He has defrauded his creditors and has been horsewhipped off the course of Doncaster," for it is no part of his professional duties to at- tend horse-races. Doyley v. Roberts, 3 Bing. N. C, 835; 5 Scott, 40; 3 Hodges, 154. 8. To say of a livery-stable' keeper, "You are a regular prover under bankruptcies, a regular bankrupt maker," is not actionable, for it is not a charge against him in the way of his trade. Angle v. Alexander, 7 Bing., 119; 1 Cr. & J., 143; 4 M. & P., 870; 1 Tyrw., 9. So to call a carpenter " a rogue," or a cooper " a varlet and a knave," is clearly not actionablei)er se, for the words do not touch them in their trades. Lancester v. French, 3 Str., 797; Cotes v. Ketle, Cro. Jac, 204. 9. A declaration alleged that the defendant falsely and maliciously spoke of the plaintiff, a working stone-mason, " he was the ringleader of the nine hours' system," and " he has ruined the town by bringing about the nine hours' system," and " he has stopped several good jobs from being carried out by being the ringleader of the system at Llanelly," whereby the plaint- iff was prevented from obtaining employment in his trade at Llanelly. Seld, on demurrer, that the words not being in themselves defamatory nor connected by averment or by implication with the plaintiff's trade, and the aUeged damage not being the natural or reasonable consequence of the 1T4^ DEFAMATION AFFECTING PERSONS IN OFFICES, ETC. speaking of them, the action could not be sustained. Miller v. David, L. R., 9 C. P., 118; 43 L. J., C. P., 84; 23 W. R., 338; 30 L. T., 58. 10. To say of a livery-stable keeper, " You are a regular prover under bankruptcies, a regular bankrupt maker ; " for it is not a charge against him in the way of his trade. Angle v. Alexander, 7 Bing., 119; 1 Cr. & J., 143; 4 M. & P., 870; 1 Tyrw., 9. Nor to say to a clerk to a gas company, " You are a fellow, a disgrace to the town, uniit to hold your situation for your conduct with whores." Lumby v. AUday, 1 O. & J., 301; 1 Tyrw., 317. And see James v. Brook, 9 Q. B., 7; 16 L. J., Q. B., 17; 10 Jur., 541. Nor to impute to a stay-maker that his trade is maintained by the prosti- tution of his shop woman. Brayne v. Cooper, 5 M. & W., 249. But see Riding v. Smith, 1 Ex. D., 91; 45 L. J., Ex., 281; 34 W. R., 487; 34 L. T., 500. 11. To say of a land speculator, "He cheated me of one hundred acres of land," was held in Canada not to touch him in his trade, and therefore not actionable. Fellowes v. Hunter, 20 Up. Can., Q. B., 383. See Sibley v. Tom- lins, 4 Tyrw., 90. 12. To call a dancing mistress " an hermaphrodite" is not actionable; for girls are taught dancing by men as often as by women. Wetherhead v. Armitage, 3 Lev., 333; 8 Salk., 338; Freem., 377; 2 Show., 18. Se&is, in America, Malone v. Stewart, 15 Ohio, 319. 13. To say of the keeper of a restaurant, "You are an infernal rogue and Swindler," was held not to be actionable without proof of special damage, as not of itself necessarily injurious to a restaurant keeper ; for, as the supreme Court of Victoria "remarked: "In fact there might be very successful res- taurant keepers who were both rogues and swindlers." Brady v. Youlden, Kerf erd & Box's Digest of Victoria Cases, 709 ; Melbourne Argus Reports, 6th September, 1867. 14. So it is not actionable without proof of special damage to impute drunkenness to a physician. Ayre v. Craven, 2 A. & E., 3; 4 Nev. & M., gSO. To a stay-maker. Brayne v. Cooper, 5 M. & W., 349. Or a clerk to a gas company. Lumby v. AUday, 1 C. & J., 301; 1 Tyrw., 317. § 7. The Words Must Touch the Party in His Trade, Of- fice or Profession.— It by no means follows that all words spoken to the disparagement of an officer, professional man or trader will be actionable in themselves. Words to be action- able on this ground " must touch the party in his office, profes- sion or trade;" that is, they must be shown to have been spoken of him in relation thereto, and to be such as would prejudice him therein. They must impeach either his skill or knowledge, or his official or professional conduct. His special office, profession or trade need not be expressly referred to, if the charge made be such as must necessarily aflfeot it. And in determining this question regard must be had to the rank and position of the party and to the mental and moral require- THE SUBJECT ILLUSTRATED — GROUND OF ACTION. 175 ments of the office he holds or the trade or profession which he follows.^ § 8. The Subject Illustrated.— From the illustrations given it will be easy to form an idea of what is meant by the words " touch him in his profession," and the principal reason upon which they depend is tolerably apparent. It may perhaps be made clear by a simple illustration in point: Mr. Brown says of Mr. Smith, a carpenter, that he is incapable of making up a physician's prescription, and he also says of Mr. Jones, a chemist and druggist, that he cannot construct a door or mend a table. Obviously such assertions convey no injurious impu- tation to the parties of whom they are made. But if they are applied inversely to the parties in question the words may have the effect of seriously damaging each in his own partic- ular trade or employment; that is, touch him in his trade, office or profession.^ § 9. The Defamatory Words Must be Published while the Party Still Carries on His Trade, Practices His Profession or Holds His Office. — The ground of action in these cases is that the party is disgraced, or injured in his profession or trade, or exposed to the hazard of losing his office, in conse- quence of the slanderous words ; not that his general reputa- tion and standing in the community are affected by them. It will be recollected that the words spoken, in this class of cases, are not actionable of themselves, but that they become so in consequence of the special character of the party of whom they were spoken. The fact of his maintaining that special character, therefore, lies at the very foundation of the action.' Thus, where an action is brought for words spoken of a lawyer or a physician, it must appear that he practiced as such at the time the words were spoken; for otherwise the words could not have affected him professionally. So if an action be brought for publishing words of a tradesman concerning his trade, it must be averred that at the time of publishing them he was in trade, for if he were not at that time in trade his credit could not be injured by the words. The cases all admit 1 Dole V. Van Rensselaer, 1 Johns. 243; Pfitzinger v. Dubbs, 64 Fed. Cas. (N. Y.). 330; Kinney v. Nash, .3 Bep., 696; Piper v. Woolman, 43 N. Y., 117; James v. Brook, 3 Q. B., 7; Neb., 280; 61 N. W. Rep., 588; State Odgers on L. & S., 63; Flood on L. & v. Mason, 26 Or., 373. S., 120; Morasse v.Broohu, 151 Mass., 2 Flood on L. & S., 120. 567; Baldwin v. Walser, 41 Mo. App., ^ Heard on L. & S., § 45. 176 DEFAMATION AFFEOTISTG PEKSDNS IN OFFICES, ETG. this principle and show that, for slander of a man in his call- ing, that calling, whatever it might be, had continued, either actually or by intendment, to the time of the speaking of the words. Trades or professions in the legal acceptation of those terms are conditions which by law are presumed to continue and not to be altered.* § 10. Requisites of the Imputation.— Words imputing adultery, profligacy or immoral conduct, when spoken of one holding an office or carrying on a profession or business, will not be actionable unless they "touch" him in that office, pro- fession or business. Thus, if alleged of a clergyman they will be actionable, because if the charge were true it would be grouiud for degradation or deprivation, as it would prove him unfit to hold his benefice or to continue in the, active duties of his profession.* But if the same words were spoken of a trader or of a phj'sician they would not be actionable without proof of special damage, as they do not necessarily affect the plaintiff in relation to his trade or profession. Any words spoken of a person, in relation to his office,, trade or profession, which tend to impair his credit, or to charge him with fraud or indirect dealing in his line of calling or business, are action- able in themselves.' § 11. Imputations upon the Integrity of Persons Holding Offices of Trust. — Words which impute a want of integrity to any one holding an office of confidence or trust, whether an office of profit or not, are clearly actionable in, themselves. So if the words employed have a natural tendency ta cause the plaintiff to be removed from his office, as by imputing insuffi- ciency or gross incompetency, or habitual negligence of his duties.* But where the words merely impute want of ability, iTuthil V. Milton, Yelverton, 15S; * Williams v. Davenport, 43 Minn., CoUis V. Malin.Cro. Car., 383; Jordan 393; Dennis v. Johnson, 43 Minn., V. Lyster, Cro. Eliz., 373; Moore v. 301; Doan v. Kelley, 131 Ind., 413; Synne, 8 EoUe Rep., 84; Forward v. Morasse v. Brochu, 151 Mass., 567; Adams, 7 Wend., 204; Bellamy v. Mains v. Whiting, 87 Mich., 173; Burch, 16 Meeson & Welsby, 590; Alexander v. Jenkins, 1 Q. B., 797; Gallwey v. Marshall, 9 Ex., 294. Arrow Steamship Ca v. Bennett, ZGallwey v. Marshall, 9 Ex., 394; 73 Hun, 81; Gaither v. Advertiser 33 L. J., Ex., 78. Co., 103 Ala., 458; Tarlton v. La- 3 Davis V. Davis, 1 N. & M. (8. C.y, garde, 46 La. Ann., 1368; Mattioe v. 390; Ostrom v. Calkins, 5 Wend. (N. Wilcox, 147 N. Y., 634. Y.), 36a ILLtrSTEATIONS DIGEST OF AMEEICAN OASES. 1Y7 without ascribing to the pJaintifiP any wicked or dishonest con- duct, no action lies. As the danger of plaintiff's losing his office is the gist of the action, it is essential that plaintiff should hold the oifice at the time the words were spoken.^ To say publicly of a man who is in the enjoyment of an office of honor, profit or trust that he is wanting in integrity in his oflBce, or that he habitually neglects his official duties, or that he is a corrupt man and takes bribes, is actionable; but if the words merely impute to him want of ability and general unfit- ness for his post, the words are not actionable without proof of special damage. Whenever words are sought to be made actionable on the ground that they were spoken of a man in oifice, it must be shown that they were spoken of him in his character or conduct in his ofiice, and that they impute to him the want of some qualification for or misconduct therein.'' § 12. Illnstrations — Digest of American Cases. — 1. It is actionable loithout proof of special damages to say of the chief engineer of the fire department, " You have got a pretty chief engineer here ; it took two men to hold him up. He was dead drunk. He is a pretty man to be chief engineer. He is not fit to be engineer when a man is so drunk." Gottbehaet v. Hubacheck, 36 Wis., 515. 2. To charge a member of a nominating convention of a political party with bribery or with having been influenced by a bribe. Dolloway v. Tur- rel, 26 Wend. (N. Y.), 383; Stone v. Cooper, 2 Denio (N. Y.), 193; Band v. Winton, 9 Vroom, 122; Hand v. Winten, 38 N. Y., 122; Sanderson v. Cold- weU, 45 N. Y., 598. 3. To say of a justice of the peace: "The reason I did not take out my second papers was, I did not want to sit as a juror before such a damned fool of a justice." Speiring v, Andrae, 45 Wis., 333. 4. Words spoken of a sheriff in relation to his oflace, charging him with converting moneys collected on execution to his own use, amount to a charge of malpractice, and are actionable. Dole v. Van Rensselaer, 1 Johns. Cas. (N. Y.), 330. 5. To say of a postmaster, in reference to his oflScial character: "He would rob the mail for $100; yes, he would rob the mail for $5." Craig v. Brown, 5 Blackf. (Ind.), 44 1 Odgers on L. & S., 72; Eviston v. sey v. Cheek, 109 N. C, 270; Hallam Cramer, 47Wis.,659; Kinney V.Nash, v. Post Pub. Co., 55 Fed. Rep., 456; 3'N Y., 177; Van Tassel v. Capron, Jackson v. Pittsburg Times, 153 Pa. 1 Den. (N. Y.), 250. St., 406; Upton v. Hume, 24 Or., 420 ; zHow V. Prin, Holt, 653; 3 Salk., Post Pub. Co. v. Moloney, 50 Ohio 694- R. V. Darby, 3 Mod., 136, with St., 71; Meteye v. Times Dem. Pub. Prowse V. Wilcox, ib., 163; Onslow Co., 47 La. Ann., 824; Pokrok Za- V. Home, 8 Wils., 177; 2 W. Bl., 753; padu Pub. Co. v. ZiskovsUy, 43 Neb., Morasse v. Brochu, 151 Mass., 567; 64; 60 N. W. Rep., 358. Kent V. Bongartz, 15 R. L, 73; Ram- 178 DEFAMATION AFFECTING PERSONS IN OFFICE, ETC. 6. OfHcers and candidates for office maybe canvassed but not calumni- ated. Seely v. Blair, Wright (Ohio), 358, 683. 7. Words spoken of a party in his character as a judge are actionable ■without colloquium or innuendo. Hook v. Hacliney, 16 Serg. & R. (Penn.), 385. 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-sheriff 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., 36 Minn., 141 ; 30 N. W. Rep., 463. 11. To charge any public officer falsely with gross ignorance of his duties is actionable. Spiering v. Andrae, 45 Wis., 330. 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., 806. 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), 3 Atl. Rep., 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., 303. 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. Riggs v. Denniston, 3 Johns. Cas. (N. Y.), 198. And so is an article representing the lieutenant- governor as being in a beastly state of intoxication while in the discharge of his duty in the senate — " an object of loathing and disgust." Root v. King, 7 Cow., 613; 4 Wend., 113. 16. But it is not actionable without 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 'Squu-e 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 him 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. ILLTTSTBATIONS DIGEST OF ENGLISH OASES. 179 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 returning the same in time, do not impute official misconduct. Van Tas- sel V. Caprou, 1 Denio, 350. IS. 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, 2 Port. (Ala.), 213. 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 plalntifl, 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 rnisconduct 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. Hanispn, 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 integrity, 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, 31 ilinn., 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. Ward well, 136 JIass., 164. § 13. Digest of English Cases.— \. Itis 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 EoU. Abr., 58; Woodruff v. Wooley, 1 Vin. Abr., 468; Jackson v. Adams, 3 Bing. N. C, 403; 3 Scott, 599; 1 Hodges, 339. 2. To call an escheator, attorney or other officer of a court of record an '■ extortioner." Stanley v. Bos well, 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., 263. 4. To say of a constable, "He is not worthy the office of constable." Taylor v. How, Cro. Eliz., 861; 1 Vin. Abr., 464. 180 DEFAMATION AFFECTING PERSONS IN OFFICES, ETC. 5. To accuse a royal commissioner of taking bribes. Moor v. Foster, Cro. Jac, 65; Purdy v. Stacey, 5 Burr., 2698. 6. 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 commifeion." Stuckley v. Bulhead, 4 Eep., 16; Sir John Harper V. Beamond, Cro. Jac, 56; Sir Miles Fleetwood v. Curl, Cro. -Jac, 557; Hob., 268. 7. That "he is a Jacobite and for bringing in the Prince of Wales and popery; " for this implies that he is disaflfected to the established govern- ment and should be removed from office immediately (How v. Prin (1702), Holt, 652; 7 Mod., 107; 2 Ld. Eaym., 812; 2 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." Cassar V. Curseny, Cro. Eliz., 305; Carn v. Osgood, 1 Lev., 280; AUeston v. Moor, Hefcl., 167; Masham v. Bridges, Cro. Car., 223; Isham v. York, Cro. Car., 15; Beamond v. Hastings, Cro. Jac, 240; Aston v. Blagrave, 1 Str., 617; 8 Mod., 270; 2 Ld. Raym., 1369; Fort., 206; Lindsey v. Smith, 7 Johns., 359. 8. Thus, "You 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, 142. 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 bound "(R. v. Farre, 1 Eeb., 629); 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., 306; 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 plaiutilT from office. Bill v. Neal, 1 Lev., 52; Sir John HoUis v. Brisoow etux., 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 caU 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 Lsv., 52; How v. Prin, Holt, 652; 3 Salk., 694; SLd. Raym., 813; 7 Mod,, 107; 1 Bro. Pari. C, 64; Aston v. Blagrave, 1 Str., 617; 8 Mod., 370; Fort., 206; 3 Ld. Raym., 1369. DEFINITION OF TEEMS. 181 § 14. Meaning of the Terms Actionable per se, In Tliera- selyes and Actionable without Proof of Special Damages — Illustrations. — "When language is used concerning a person or his affairs which from its nature necessarily must, or pre- sumably will as its natural and proximate consequence, occa- sion him pecuniary loss, its publicsition 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 physician's conduct in a particular case, ascribing to him 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 band, 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 particular 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 efifect. 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 efifect a charge of gross, culpable and almost 182 DEFAMATION AFFECTING PERSONS 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 who 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 imputatiorn of dishonesty, or any 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 counselor at law with offering his services to his client in order to divulge his secrets.' Riggs V. Dennison, 3 Johns. Cas. (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 probable consequence of such words. Sumner v. Utley, 7 Conn. , 258 ; Garr v. Selden, 6 Barb. (N. Y.), 416. iSecorv. Harris, 18 Barb. (N. Y.), '4 Rep., 16: Cro. Car., 192; Cro, 435; Carroll v. White, 33 Barb. (N. Jac, 586; 3 Wiia, 59; 3 Esp., 634; Y.),616; Bergoldv. Putcha,3Thomp. Mains v. Whiting, 87 Mich., 173; 49 & C, 533; Johnson v. Robertson, 8 N. W. Rep., 559; Mattice v. Wilcox, Port., 486; Tutty v. Alewin, 11 Mod., 147 N. Y., 634; Harris v. Minvielle, 331; Onslow v. Home, 3 Wils., 177; 48 La. Ann., 908. Pratt V. Pioneer Press Co., 35 Minn., * 1 N. R., 196; Hargan v. Purdy, 93 251; 28 N. W. Bep., 708; Summer v. Ky., 424. miey, 7 Conn., 357. "Tutty v. Alewin, 11 Mod., 331; 2Peard v. Jones, Cro. Car., 383; 6 Flower's Case, Cro. Car., 211; Red- Bac. Abr., 215; Cruikshank v. Gor- man v. Pyne, 1 Mod., 19; Cruikshank den, 118 N. Y., 178; Henderson v. v. Gorden, 118 N. Y., 178; Williams Commercial Advertiser, 46 Hun, v. Davenport, 43 Minn., 393; Lotto 504; Dennis v. Johnson, 43 Minn., 301. v. Davenport, 43 Minn., 385. ILLUSTEATIONS — DIGEST OF ENGLISH CASES. 183 3. And it has been held that the words, " Dr. A. killed ray children. He gave them teaspoonful doses of calomel, and it killed them. They did not 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.), 485. 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 plaintiff's occupation, and the employment is one requiring peculiar knowledge and skill. Fitzgerald V. Redfield, 51 Barb. (N. Y.). 484. 6. 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, 8 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, 33 Ind., 184. 6. To say of a physician: " He is no good, only a butcher. I would not have him for a dog,"— is actionable. Cruikshank v. Gorden, 118 N. Y., 178; 23 N. E. Eep., 457. See, also, 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., 383. 2. To say of a midwife. " Many have perished for her want of skill." Flowers' Case, Cro. Car., 311. 3. To charge an apothecary with having caused the death of a child by administering to it improper medicines. Edsall v. Russell, 4 M. & Or., 1090 ; 5Scott, N. R., 801;2Dowl.(N. S.),641; 12 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., 58S. „ ^ 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., 33? ; 2Keble, 203. G. 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, sed non allocatur, for the scandal is the greater if he had none." And the court adds a solemn qumre 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 devUI Odgers on L. & S., 71. 184 DEFAMATION AFFECTING PERSONS 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., 270; 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 clevei-ness or ignorance of law. But words which impute to him corruption, dishonesty, extortion or sedi- tion are actionable of course. Bill v. Neal, 1 Lev., 52; How v. Prin, Holt, 652; 2 Salk., 694; 2 Ld. Raym., 813; 7 Mod., 107; 1 Bro. Pari. C, 64; Aston V. Blagrave, 1 Str., 617; 8 Mod., 370; Fort., 206; 3 Ld. Raym., 136'J. § 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 example: 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, Cooke, 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. Cas. (N. Y.), 198. 8. 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. 6. 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, 3 Treadw. (S. C.) Const., 235. So to charge an at- 1 Cooke on Defamation, 14; Barker Co., 34 Minn., 343; Greenwood v. V. Morfue, Sid., 337; 2 Keb., 203; Cobbey, 26 Neb., 449. Powell V. Jones, 1 Lev., 297; Hender- ^ Riggs v. Dennison, 3 Johns. Cas. son V. Commercial Advertiser, 46 (N. Y.), 198. Hun, 604; Mains v. Whiting, 87 3 Gapp v. Selden, 6 Barb. (N. Y.), Mich., 173; Rush v. Cavenaugh, 2 416; 4 Comst., 91. Pa. St., 187; Gribble v. Pioneer Press ILLUSTRATIONS — DIGEST OF ENGLISH OASES. 185 torney with professional misconduct. Atkinson v. Detroit Free Pre^, 4ft Mich., 341 : 9 N. W. Rep., 501. G. 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.— 1. Itis actionable without proof of special damages to say of an attorney, "Ha is an ambidexter," i. e.,one who being retained by one party in a cause, and having learnt all his secrets, goes over to the other side and acts for the adversary. Such conduct was subject for a qui tarn action under an old penal statute. EasteU's Entries, p. 2, Action sur le case vers Attor- ney, 3; Annison v. Blofield, Carter, 214; 1 Roll. Abr., 55; Shire v. King, Yelv., 32. 2. To impute that he wUl betray his clients' secrets and overthrow their cause. Martyn v. Burliugs, 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 devU;" or any other words imputing gross igno- rance of law. Day v. BuUer, 3 Wils., 59; Baker v. Morfue, Sid., 337; 2 Keb., 203; Powell v. Jones, 1 Lev., 297. 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, 2 Stra., 1138. 7. Tochargeanattorneywithbarratry, champerty or maintenance. Boxe V. Barnaby, 1 EoU. Abr., 55; Hob., 117; Proud v. Hawes, Cro. Eliz;, 171; Hob., 140; Taylor v. Starkey, Cro. Car., 192; 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. 9.' To say of an attorney, "He stirred up suits, and once promised rae that if he did not recover in a cause for me he would take no charges of me ; " " because stirring up suits is barratry, 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., 122; 9 Bac. Abr., 51. 1 1 . But it is not actionable without proof of special damages 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 Bmg. 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. AUeston v. Moor, Het., 167 ; Bishop v. Latimer, 4 L. T., 775 ; 9 Bac. Abr., 51. 186 DEFAMATION AFFECTING PERSONS IN OFFICES, ETC. §21. Barristers at law. — Barristers may sue for words touching them 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 baixis- 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. Or, "He hath as much law as a jackanapes." Palmer v. Boyer, Owen, 17; Cro. Eliz., 342; 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 purse, and fill his own large pockets." Kingv. Lake, 2Ventr., 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 him." 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. , 382. § 23. Clergymen and Ministers of the Gospel.— Words are •often actionable when spoken of clergymen which would not be so if spoken of others.^ But 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- ways 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 1 Bracebridge v. Watson, Lilly, son v. Lathrop (Wis.), 71 N. W. Rep., Extr., 61; Hartley v. Henning, 8 T. 596. ^•' 1^0- 3 Drake v. Drake, 1 Roll. Abr., 58; 2Galway v. Marshall, 9 Ex., 294; Dodd v. Robinson (1648), Aleyn, 63; 23 L. J., Ex., 78; 2 C. L. R., 399; Piper Pemberton v. Colls, 10 Q. B., 461; 16 v. Woolman, 43 Neb., 280; Bid well v. L, J., Q. B., 408; 11 Jur., 1011. -Rademacher.ll Ird., App., 218; Mun- ILLUSTRATIONS — DIGEST OF AMERICAN CASES. 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 drunli, 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- body ; " * or, " he preacheth nothing but lies and malice in the pulpit." ^ § 2i. Illustrations — Digest of American Cases. — 1. It is actionable without proof of special damages to say of a minister of the Gospel, " Old Chaddock 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. Briggs, 13 Tyng (Mass.), 253. To say of a preacher, "He is a drunkard." McMillan v. Birch, 1 Binn. (Penn.), 178. But, contra, see O'Hanlon v. Myers, 10 Rich. (S. C), 138. 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. Cowden, 37 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.), 5.18; 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; s Musgrave v. Bovey, Stra., 946. Demarest v. Haring, 6 Cow. (N. Y.), ^ Cranden v. Nolden, 3 Lev., 17; 9 1 Bao. Abr., 48; Piper v. Woolraann, 2 Chaddock v. Briggs, 13 Mass., 348. 43 Neb., 280; Bidwell v. Rademacher, SDodd V. Robinson (1648), Aleyn, 38 N. E. Rep., 879; 11 Ind. App., 218; Ritchie v. Widdemer, 35 Atl. Rep., * Pocock v. Nash, Comb, 253. 625. 76. 63. 188 DEFAMATION AFFECTING 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 him 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. Nash, Comb., 353; Musgrave v. Bovey, 3 Str., 946. 3. To charge a clergyman with immorality and misappropriation of the sacrament money is clearly actionable. Damages, £750. Highmore v. Earl and Countess of Harrington, 3 C. B. (N. S.), 143. 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. X, 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, 3 Mod., 160. But this is only because the statute of Scandalum Magnatum, 3 Rich. H., 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 cases clearly overrule Parret v. Carpenter, Noy, 64; Cro. Eliz., 503, 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., 33 L. J., Ex., SO.] 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., 394; 33 L. J., Ex., 78; 3 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 office of dissenting minis- ter. Hopwood V. Thorn, 8 C. B., 298; 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. MEBICAL MEN, ETC. THE LAW STATED. 189 would be actionable. Cucks v. Starre, Cro. Car., 285; Tighe v. Wicks, 38 Upper Canada, Q. B. Rep., 470. §26. Medical Men — Physicians— Surgeons — Apotheca- ries — Phari^cists. — 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. Illnstrations — Digest of American Cases. — 1. It is actiondble 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. iCampv.Martin,23Conn.,86;Gapp 1368; Cruikshank v. Gorden, 118 V. Selden, 6 Barb. (N. Y.), 416; Day N. Y., 178. V. Buller, 3 Wils., 59; Poe v. Mond- 2 Ganvreau v. Superior Publishing ford, Cro. Eliz., 630; Watson v. Van- Co., 63 Wis., 403; 23 N. W. Rep., 726; derlash, Hetl.,71; Southee v. Denny, Bradley v. Cramer, 59 Wis., 318, 313; 1 Exch., 196; 17 L. J., Ex., 151; Ed- 18N. W.Rep.,268; Southee v. Denny, sail V. Russell, 4 M. & Gr., 1090; 13 1 Exch., 196; Edsall v. Russell, 43 E. L. J., C. P., 4; 5 Scott, N. R., 801; 3 C. L., 560; Bishop v. Latimer, 4 Law Dow'l. (N. S.),641; 6 Jur., 996; Foster T., 775; Camp v. Martin, 23 Conn., V. Sci-ipps, 39 Mich., 376; 33 Amer. 86; Bowe v. Rogers, 50 Wis., 598; 7 R., 403; Hargan v. Purdy, 93 Ky., N. W. Rep., 547. 424; Tarlton v. Lagarde, 46 La. Ann., 190 DEFAMATION AFFECTING PEESONS IN OFFICES, ETC. 2. " He killed the child by giving it too much calomel." Johnsou v. Eob ertson, 8 Porter (Ala.), 486. 3. " He is no doctor. He bought his diploma for $50." Bergold v. Puohta, 2 Sup. Ct. N. Y. (T. & C), 533. 4. " He killed six children in one year." Carcol 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, 23 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, 8 N. H-., 194; Fry v. Bennett, 28 N. Y., 334. 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, 33 Conn., 86; Sumner v. Ut- ley, 7Conn., 258. 8. To charge, maliciously, a physician with ignorance and unskilf ulness in his profession is actionable jserse. Cruikshank v. Gordon, 48 Hun (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, 3 Whart. (Penn.), 138. 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, 39 Hun (N. Y.), 12. 13. It seems the person 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 offense 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 PB0FESSI0N3 AND TEADES. 191 tering tlie wrong medicines or in excessive doses. Collier, M. D., v. Simp- son. 5 C. & P., 73; Tutty v. Alewin, 11 Mod., 231. 2. To call a practicing medical man " a quack-salver," or "an empiric," or a "mountebank." Allen v. Eaton, 1 Roll. Abr., 54; Goddart v. Hasel- foot, 1 Viner's Abr. (S. a.), pi. 12 ; 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 Exoh., 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., 620; 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. J., C. P., 4 ; 5 Scott, N. R. , 801 ; 3 Dowl. (N. S.), 641 ; 6 Jur., 996. o. 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 lawful employ- ments. Collins V. Carnegie, 1 A. & E., 695; 3 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. Ayre v. Craven, 3 A. & E., 8; 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, 18S3. 9. Dawes intended to employ the plaintiff, a surgeon and accoucheur, at his wife's approaching confinement, but the defendant told Dawes that the plaintiff's female servant had had a child by the plaintiff. Dawes conse- quently decided not to employ the plaintiff. Dawes told his mother and his wife'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. & S., 78. § 30. Other Learned Professions and Trades — Architects, Dentists, Teachers, Surveyors, Mechanics, and the LiJie. — To impute incompetency to any person practicing the art of architecture, dentistry, school-teaching or land-surveying, me- chanical trades, and the like, is actionable without proof of 192 DEFAMATION AFFECTIKG PEESONS IS OFFICES, ETC. special damages. Words imputing to a mechanic a want of skill or knowledge in his craft are actionable in themselves if they 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 Englisli Cases.— 1. It is actionable vnthaut 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, 2 EpUe'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, 42 J. P. 136; Brandrick v. Johnson, 1 Vict. L. E., C. L., 306. § 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 Ilule.— The rule is well settled in the United States that words spoken of a person in his office, 1 Fitzgerald v. Eedfleld, 51 Barb. Orr v. Skofield, 56 Me., 483; Brown (N. Y.), 484; Levy v. McCan, 44 La. v. Vannaman, 85 Wis., 451; Mitchell Ann., 528; Murphy v. Nelson, 04 v. Bradstreet Co., 116 Ma, 226; Mc- Mich., 554; Lapham V.Noble, 54 Fed. Kenzie v. Denver Times, 3 Colo. Rep., 108; Williams v. Davenport, 42 App., 554; Continental Nat. Bank v. Minn., 393; Dennis v. Johnson, 42 Bowdre, 92 Tenn., 723; Nettles v. Minn., 301; Doanv.Kelley, 121 Ind., Somervell, C Tex. Civ. App., 637; 413; Harris v. Minvielle, 48 La. Ann., Urban v. Helmick, 15 Wash!', 155; ^"S- Peterson v. Western Union TeL Co., 2 Davis V. Euff, Cheves (S. C), 17; 67 N. W. Eep., 64a Sewall V. Catlin, 8 Wend. (N. Y.J, 291; OCCUPATIONS WHERE CREDIT IS ESSENTIAL. 193 business or employment, imputing a want of integrity, of credit, of common honesty, are actionable without proof of 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 others 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 persons 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. Keport 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. Lpwis, 7 Term R., 17. J.), 116. s Sewall v. Catlin, 7 Wend. (N. Y.), 2Seamon V. Bigg, Cro. Car.,480. 291. 3 Dobson V. Thornstone, .3 Mod., 8 jiott v. Comstock, 7 Cow. (N. Y.), 112. 654. 4 Phillips V. Hoeffer, 1 Penn. St. w Carpenter v. Dennis, 3 Sandf., Rep., 62. 305. 6 Ostrotn V. Calkins, 5 Wend. (N. " Beardsly v. Tappan, 1 Blatoh. C. Y.), 563. C. R., 588. 6 Chapman v. Lamphire, 3 Mod., 155, 194 DEFAMATION AFFECTING PEESONS IN OFFICES, ETO. § 36. Illustrations — Digest of American Cases. — 1. It is actionable without 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 Messre. 8." Sewall V. Catlin, 3 Wend. (N. Y.), 391. 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, Hoeffer, 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. K, 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, consisting of merchandise, show-cases, 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 — $1,300 to merchants like you and a $500 demand note. If any one of his creditors should crowd him the demand would be pushed. M. would 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., 335. 4. A. and B. had been carrying on the commission business under the firm name of B. & O. 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. (111.), 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 spedai 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 RoUe's Rep., 144: Thompson v. Twenge, 3 Eolle's Rep., 433 r Vivian v. Willet, Sir Thomas Raymond, 307; 3 Salk., 326; Stanton v. Smith, 3 Ld. Raymond, 1480; 2 Str,, 762 ; Whittington v. Gladwin, 5 B. & C, 180; 3 C. & P., 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, 2 F. & F., 76; Brown V. Smith, 13 C. B., 596; 33 L. J., C. P., 151; 17 Jur., 807; 1 C. L. E., 4. 2. To say of a brewer that he has been arrested for debt. And this al- IMPUTING DISHONESTT TO MERCHANTS, ETC. 195 though no express reference to his trade was made at time of publication, for such words must necessarily aflfect his credit therein. Joiies v. Littler 7 M. & 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., 317; Hall v. Smith, 1 M. & S., 288; Figgins v. Ctogswell, 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., 276; Sid., 424; Hooker v. Tucker, Holt, 39; Garth., 330; Morris v. Langdale, 2 Bos. & Pul., 284; 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; 2 C. & P., 146; Southam v. Allen, Sir T. Raym., 231. 7. To say to a tailor, " I heard you were run away," sc. from your cred- itora 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. Gas., 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, 321, 322. § 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 ou a thing, not a person.^ But 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.' 1 Crisp V. Gill, 29 L. T. (O. S.), 82; L. J., Q. B., 120; Harman v. Delaney, Oddy V. Lord Geo. Paulet, 4 F. & F., 2 Str., 898; Fitz., 121; 1 Barnard., 289, 1009; Peterson v. Western Tel. Co., 438. 67 N, W. Rep., 646; Booth v. Arnold, 3 Jenner v. A'Becket, L. R, 7 Q. B., 1 Q. B., 571; 14 Repts., 326; Rea v. 11; 41 L. J., Q. B., 14; 20 W. E., 181; Wood, 105 Cal., 314; Rider v. Ruli- 35 L. T., 464; Burnet v. Wells (1700), son 74 Hun, 239. 12 Mod., 420; Clark v. Freeman, 11 2 Fenn v. Dixe (1638), 1 Roll. Abr., Beav., 113; 17 L. J., Ch., 143; 12 Jur., 58; Evans v. Harlow, 5 Q. B., 624; 13 149. 196 DEFAMATION AFFECflNe PEKSOIfS IN OFPI0B8i ETO. § 39. Illustrations — Digest of American Cases.— 1. It is actionable without proof of special damage to say of a merchant, " You keep false books, and I can prove it." Backus v. Richardson, 5 Johns. (N. Y.), 476. 2. To say of a blacksmith, in relation to his business and trade, ' ' He keeps false books, and I can prove it," is actionable. Burtch v. Nickerson, 17 Johns., 317. 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 have 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, apd 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. Whatever may be the ancient doctrine with respect to the construction of words which may sustain an action of slander, 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 words spoken of a person 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 ; Davis v. Davis, 1 N. & M. (S. C), SaO; Chipman v. Cook, 2 Tyler (Vt.), 45; McMUlan v. Birch, 1 Binn. (Penn.), 178. 6. 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. Rathbun v. Eoiigh, 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, 6 Wend., 407. ILLUSTRATIONS — DIGEST OF ENGLISH OASES. 197 § 40. Digest of English Cases.— 1. It is actionable without proof of special damage to say of a trader, "Hfi is a cheating knave, and keeps a false debt-book." Crawfoot v. Dale, 1 Vent., 203; S Salk., 3J7, overruling Todd v. Hastings, 2 Saund., 307. Or that he uses false weights or measures. Griffiths v. Lewis, 7 Q. B., 61; 14 L. J., Q. B., 197; 9Jur., 370; 8 Q. B., 841; 15 L. J., Q. B., 319; 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. T,i jay of an auctioneer or appraiser who had valued goods for the de- fenda.-:.*, "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 Iamb bought for him for a coarse piece of mutton. Crisp v. Gill, 39 L. T. (O. S.), 82 ; Rice 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. R., 142; Sir R. 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. Reignald's Case (1640), Cro. Car., 563; Reeve v. Holgate (1672), 2 Lev., 62. 8. But it is not actionable without proof of special damages to say to a pork butcher, "Who stole Frazer'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 plaintifiE 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. Ruel v. Tatnell, 29 W. R., 172; 43 L. T., 507. V. To call a tradesman "a rogue," or "a cheat," or "a cozener" is not actionable, unless it can 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., 239; Cotes v. Ketle, Cro. Jac, 204; Terry v. Hooper, 1 Lev., 115; Savage v. Robery, 5 Mod., 398; 2 Salk., 694; Surman v. Shel- leto, 3 Burr., 1688; Bromefield v. Snoke, 12 Mod., 307; Savile v. Jardine, 3 H. Bl., 531 ; Lancaster v. French, 2 Stra., 797 ; Davis v. Miller et ux., 3 Stra., 1169; Fellows v. Hunter, 20 Up. Can., Q. B., 382; Brady v. Youlden, Mel- bourne Argus R. CHAPTEK IX. DEFAMATORY WORDS IMPUTING DISEASE, ETC. § 1. The Law Stated. 2. 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- § 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 for such cases ; but it does not appear to be warranted by the decisions. The books point out only two diseases, namely, leprosy and lues 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 ij! 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- plaint3. 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 1 Kauoher v. Blinn, 29 Ohio St., 63; 22 Barb., 398; Nichols v. Guy, 2 Car- Pollard V. Lyon, 91 U. S., 225; War- ter, 82; Irons v. Field, 9 R. 1, 216; noc V. Circle, 29 Grat. (Va.), 197; Watson v. McCarthy, 2 Kelly, 57; Chapin v. Lee, 18 Neb., 440; Chad- Hewit v. Mason, 24 How. Pr., 366. dock V. Briggs, 13 Mass., 248; Joan- 29 Bacon's Abridgment, 45. nes V. Burt, 6 Allen, 236; Bruce v. '5 Rep., 125; 3 Wils., 404. Soule, 69 Me., 562; Bloss v. Tobey, 3 < Carslake v. Mapledoram, 3 T. R, Pick., 320; Golderman v. Stearns, 7 473; Cr. J., 144. Gray, 181; Williams v. Holdridge, 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 tlie 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 society. 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 being 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, 22 Barb. (N. Y.), 896. Or to say of a woman, " I will tell you what the matter with her is — she has had the pox." Irons V. Fuld, 9 E. I., 216. " Golderman has the venereal disease. It is an old affair, and being married has brought it on again. He is the guilty one; 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 dead 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.. 562. 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, 2 Wils., 403. ' Golderman v. Stearns, 7 Gray (73 ^Carslake v. Mapledorara, 2 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., 562. 200 IMPITTATION OK DISEASE. The complaint added " that, the words charged, and were meant to charge, the plaintiff with having contracted and being afiSicted 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), 30 N. E. Eep., 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 have not the itch you have the pox." Grimes v. Lovel, 12 Mod., 343. And an action lies for calling a woman " a pocky whore." Whitfield v. Powel, 12 Mod., 348. To say of a woman : " Thou are a pocky whore, and carriest the pox along with you." Clifton v. Wells, 12 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.' 'Miller's Case, Cro. Jac, 430; Da- 239; Golderman v. Stearns, 7 Gray, vies v. Taylor, Cro. Eliz., 648. 181; Kaucher v. Blinn, 29 Ohio St., 2 Miller's Case, Cro. Jaa, 430. 63; Williams v. Holdridge, 33 Barb., 3Folkard's Starkie, 109; 9 Bac. 898. Abr., 45; Joannes v. Burt, 6 Allen, CHAPTEE X. SCANDALUM MAGNATUM. § 1. The English Law. 2. Illustrations —Digest of English Cases and Ancient Statutes. § 1. The English Law.— Words spoken in derogation of a peer, a judge or other great ofiBcer of the realm are usually called scandalum magnatum; 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 ofiBce 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 Gases and Ancient Statutes. — 1. Wordjs con.plained 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 magnatum, the plaintifiE 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, oh. 34; 8 vol. 3, part 3: 3 Black. Com., 123; Rich. IL, ch. 5; 12 Rich. IL, ch. 11; Folkard's Starkie, 142. 3Mod., 153; Barrington on the Penal 2 Wood's edition of Folkard's Statutes, 301, 314; 3 Reeve's Hist., Starkie, 218, n. ; Sillars v. Collier, 151 211; and 1 Pari. Hist., 360; Rymer, Mass., 50. 202 SCANDAiUM MAGNATXJM. in the country devisors of tales, whereby discord or occasion of discord hath many times arisen between the king and bis people or great men of his realm, for the damage that bath 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 bis 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 tala" 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 arise 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 straitly 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. CHAPTEE XL SLANDER OF PROPERTY. § 1. Slander of Property. 2. Nature of the Action. 3. Requisites of the Action, (i; The Words Must be False. (2; 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 they affect some person either in his indi- vidual capacit}' or in his office, 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; be has nothing but rotten goods in bis 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 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 1 Barnett v. Wells, 12 Mod., 420. Ingraham v. Lawson, 6 Bing. N. a, sjesson V. Hayes, Roll. Abr., 63; 213. 204 SLANDEE OF PEOPERTT. must be injury and damage; the injurious words falsely and maliciously spoken, and the damage, the consequent pecuniary loss to the party 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 case 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 dearly 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. Requisites of the Action. — Three things are necessary to maintain an action for slander of property or of title: (1) The words must be false. (2) They must be maliciously published. 11 Roll Abr., 58; Tasburg v. Day, 333; 6 C. O. A., 358; McConnell v. Gro. Jac, 484; Evans v. Harlow, 5 Ory, 46 La. Ann., 564; Eemick v. Q.B.. 624; Tobias v.Harland, 4 Wend. Lang. 47 La. Ann., 914; 17 So. Rep., (N. Y.), 537; Linden v. Graham, 1 461; Everett Piano Co. v. Bent, 60 I Duer (N. Y.), 670; Kendal v. Stone, IlL App., 373; May v. Anderson, 43 ' 5 N. Y., 15; Hartley v. Herring, 8 N. E. Rep., 946; 14 Ind. App., 251; < Term R., 130; Hallock v. Miller, 3 Harrison v. How, 67 N. W. Rep., 537. Barb. (N.Y.), 630; Ashfordv.Choate, 2 Malady v. Soper, 8 Bing. N. C, 30 U. C, C. P., 471 ; Stiebeling v. Lock- 371 ; 3 Scott, 37 1. haus, 31 Hun {N. Y.), 457; Cramer v. SQdgers on L. & S., 138. CuUinane, 2 MacArthur, 197; Berg- ^-Wood'sFolkard on Slander, 308, n.; man v. Jones, 94 N. Y., 51; Russell v. Hargreave v. Le Breton, 4 Burr., 3423; Elmore, 48N.Y.,563; Pollard v. Lyon, Kendall v. Stone, 5 N. Y., 14; Smith 91 U. S., 325; Odgers on L. & S., 138; v. Spooner, 3 Taunton, 346; Like v. Chesebro v. Powers, 78 Mich., 473; McKinstry, 3 Abb. (N. Y.) App., 63; Duncan v. Griswold, 93 Ky., 546; 4 Keyes, ii9T; Wakeley v. Bostwicli:. Land Trust v. HofiEman, 57 Fed. Rep., 49 Mich., 374; 13 N. W. Rep., 78a SLANBEB Olf PiiOPEKTY. 205 (3) They must result in a pecuniary loss or injury to the plaintiff. The words must be spoken pending some treaty or public 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) The 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 maliciously 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 sufiBcient 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 iRoss V. Pines, Wythe (Va.), 71; 868; Steward v. Young, 39 U J., C. Linden v. Graham, 1 Duer (N. Y.), P., 85; L. R, 5 C. P., 123; Pollard v. 670; Madison v. Baptist Church, 26 Lyon, 91 U. S., 225; Russell v. El- How. (N. Y.), 72; Tasburgh v. Day, more, 48 N. Y., 653; Tobias v. Haiv Cro. Jac, 484; Hargreave v. Le Bre- land, 4 Wend., 537; Collins v. White- ton, 4 Burr., 2428; Pa.ter v. Baker, 3 head, 34 Fed. Rep., 131; Ashford v. C. B., 869; Steward v. Young, L. R., Choate, 20 U. C, C. P., 471. 5 C. P., 133; McDaniel v, Baca, 3 5Kendall v. Stone,5 N. Y.,14; Like Cal., 326; Hill v. Ward, 13 Ala., 310. v. McKinstry, 3 Abb. (N. Y.) App., 2 Dodge V. Colby, 108 N. Y., 445; 62; 4 Keyes, 397; Bailey v. Dean, 5 Hill V. Ward, 13 Ala., 310; Like v. Barb. (N. Y.), 297; Hill v. Ward, 13 McKinstry, 41 Barb., 186; Folkard on Ala., 810; Stock v. Chetwood, 5 Kan.. Slander, 181. 141; Smith v. Spooner, 3 Taunt. 246; 3 Burnett v. Tak, 45 L. T., 743. Hargreave v. Le Breton, 4 Burr., < Griffon V. Blanc, 13 La. Ann., 5; 2423; Folkard on Slander, 131; Walk- McDaniel v. Baca, 2 Cal., 326; Hill ley v. Bostwick, 49 Mich., 374; Id JN. V. Ward, 13 Ala., 310; Folkard on W. Rep., 780. Slander, ISl; Pater v. Baker, 3 C. B., 206 SLANDEE OF PEOPEETT. the disherisoa of one as an heir-apparent, the action may be sustained without proof of special damage ; but where it af- fects the present title of the plaintifif, special damage must be shown and proved to have arisen from the slander.' "Where a party is prevented from selling, exchanging or mak- ing any advantageous disposition of lands or other property in consequence of the impertinent interference of another, he may maintain an action for the inconvenience he has suffered, but special damage must be shown ; and the mere apprehen- sion that in consequence of the slander the plaintiff's title may be drawn in question will not support an action.^ And it is not sufficient to show generally that the plaintiff intended to sell to any one that would buy, but he must prove that he was in treaty to sell to some specific person, or at least that some one was deterred by the slander from making an offer.' Neither will it suffice to show that the value of the lands was lessened in people's opinions, but proof must be given of dam- age actually sustained. Where the alleged loss consists in the pt^evention of the sale of lands, it must appear that the words directly tended to defeat the plaintiff's title.* § i. The Plaintifif s Interest or Title.— The same rules of law apply equally to the slander of title of property both per- sonal and real, and the interest of the plaintiff therein may be either in possession or in reversion. It need not be a vested interest. The true test is, Has the interest or title defamed a market value? If so it is sufficient to sustain the action.' Corporations and companies may maintain actions for slan- der of their title, whether the slander be uttered by one of their own members or by a stranger.' §5. The Assertion of a Claim of Title The mere fact that a person asserts a claim to the property which is un- i Pollard V. Lyon, 91 U. S., S25; v. Stone, 5 N.;T., 14; Like v. McKin- Russell V. Elmore, 48 N. Y., 653; To- stry, 3 Abb. (N. Y.) App., 63; Cra bias V. Harland, 4 Wend., 537; Col- Eliz., 197; 1 Vin. Abr., 550; 6 Telv., lins V. Whitehead, 34 Fed. Rep., 131; 80. Ashford v. Choate, 20 U. C, C. P., 471 ; 3 Manning v. Amy, 8 Keb., 158. Swan V. Tappan, 59 Mass. (5 Gush.), * Folkard on Slander, 138. 104; Cane v. Golding, Styles' Rep., ^Bliss v. Stafford, Owen, 87; Moore, 169; Brook v. Rawl, 4 Ex., 531; Had- 188; Jenk., 247; Folkard on Slander, den V. Lott, 24 L. J., C. P., 49; Law 128. V. Harwood, Cro. Car., 140; Humph- ^ Metropolitan Saloon Omnibus Co. rey v. Stanfield, Cro. Car., 469; Folk- v. Hawkins, 4 H. & N., 90; 28 L, J., ard on Slander, 138. Ex., 201; Folkard on Slander, 181. 2 Folkard on Slander, 138; Kendall SLANDEK OF PEOPEETY. 207 founded does not warrant a presumption of malico. Malice must be proved as a substantive fact. The reason for this rule is obvious. It is the duty of a person who has a claim upon property that is about to be sold to assert his claim in order that innocent persons may not be misled or damnified by its purchase; and inasmuch as every person who is inquired of by another as to the title to property offered for sale is bound to assert his claim thereto if he has one, or, as against the person inquiring, be forever estopped from asserting it against him, so, too, if he stands by and sees property sold, knowing that he has a claim thereto and does not assert it, the law provides that such a claim honestly made, although erro- neous and without real foundation, shall not subject him to an action. The policy of this rule is not doubtful, and stands upon the same broad principle as all other privileged communica- tions.' So it is not actionable for any man to assert his own rights at any time. And even where the defendant fails to prove such right on investigation, still if at the time he spoke he supposed in good faith such right to exist, no action lies.' Hence, whenever a man claims a right or title in himself, in possession or in remainder, it is not enough for the plaintiff to prove that he had no such right; he must also give evidence of express malice ' — that is, he must also attempt to show that the defendant could not honestly have believed in the exist- ence of the right he claimed, or at least that he had no reason- able or probable cause for so believing. If there appear no rea- sonable or probable cause for his claim of title, still the jury are not bound to find malice ; the defendant may have acted stupidly, yet from an innocent motive.* But in all cases where it appears that the defendant at the time he spoke knew that what he said was false, the jury should certainly find malice ; lies which injure another cannot be told in good faith.' 1 Bailey v. Dean, 5 Barb., 397; ssmith v. Spooner, 3 Taunt., 246. Wood's Folkard on Slander, 208, 4 Pitt v. Donovan, 1 M. & S., 648; note; Hargreave v. Le Breton, 4 Steward v. Young, L. R., 5 0. P., 122; Burr 2422; Earl of Northumberland 39 L. J., C. P., 85; 18 W. R, 492; 22 V. Burt, Cro. Jac, 165; Williams v. L. T., 168; Clark v Molyneux 3 Q Linford, 2 Leon., Ill; Vaughn v. B. D., 237; 47 U J., Q. B., 230, 26 Ellis Cro. Jac, 313; Viner's Abr., W. R, 104; 37 L. T., 694. Sns, C. 2; 3 Woodeson, 176. ^ Odgers on L & S 142; Waterer 2Carr v. Duckett, 5 H. & N., 783; v. Freeman, Hob., 266. 29 L. J., Ex., 468. 208 SLANDER OF PROPERTY. § 6. Statements by Agents and Attorneys.— The law ap- plies equally where the defendant is an agent or attorney, and claims for his principal or client a title which he honestly be- lieves him to possess.' So where a man in good faith asserts a title in his father or other near relative to whom he or his wife is heir apparent.^ But where the defendant makes no claim at all for himself or any connection of his, but asserts a title in some one who is a stranger to him, here he clearly is meddling in a matter which does not concern him ; and such officious and unnecessary interference will be deemed mali- cious.' § 7. The Subject Divided. — The subject of slander of prop- erty may be very conveniently divided into two classes: (1) Where the title of the property is defamed ; and (2) where the quality of the property is defamed, though under the general but seemingly inappropriate term of " slander of title " is in- cluded all the rules of law equally applicable, whether the words complained of be defamatory of the title or the quality of the property. § 8. Slander of the Title of Property. — Where a person pos- sesses an estate or interest in any real or personal property, an action lies against any one who maliciously comes forward and falsely denies or impugns the plaintiff's title thereto, if thereby damage follows to the owner.* The statement claimed as slanderous must be false; if there bdsuch a flaw in the title as the defendant asserted, no action lies. And it is for the plaintiff to prove it false, not for the defendant to prove it true.' And the statement must be ma- licious; if it be made in the lona fide assertion of defendant's own right, real or supposed, to the property, no action lies. But whenever a man unnecessarily intermeddles with the affairs of others with which he is wholly unconcerned, such ' Hargreave v. Le Breton, 4 Burr., 34; Moore, 144; Jenkins' Centuries, 2482; Steward v. Young, L. R., 4 C. 247; Odgers on L. & S., 143. P., 122; 39 K J., C. P., 85; 18 W. R., « Dodge v. Colby, 108 N. Y., 445; 493: 33 L. T., 186. Hill v. Ward, 13 Ala., 310; Like v. 2 Pitt V. Donovan, 1 M. & S., 639; McKinstry, 41 Barb., 186; Griffon v. Gutsole V. Mathers, 1 SL & W., 499; Blanc, 13 La. Ann., 5; Pater v. Baker, 5 Dowl., 69; 3 Gale, 64; 1 Tyrw. & 3 C. B., 869; 16 L. J., C. P., 124; 11 Gr., 694. Jur., 370; Kendall v. Stone, 5 N. Y., ' Pennyman v. Rabanks, Cro. Eliz., 14. 437; 1 Vin. Abr., 551 ; Mildmay et ux. 5 Burnett v. Tak, 45 L, T., 743. V. Standish, 1 Rep., 177 b; Cro. Eliz., SLANDER OF PEOPBETT, 209 ofiBcious 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 plaintifif 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.* IliLtrSTRATIONS — DIGEST OF AMERICAN CASES. 1. An action for slander of title was brought against the sheriff of Gene- see county, Michigan, and one Bjron Bostwick. Bostwiok was the plaint- iff in an execution against one John Walkley, and the atetion was brought for wrongfully levying the execution upon lands owned by the plaintiff (who, it seems, nas 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 result pi the act complalneJ 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 1 Bailey v. Dean, 5 Barb. (N. Y.), > Fenner, J., in Bold v. Bacon, Cro. 297. Eliz., 346. 2Tasburgh v. Day, Cro. Jac, 484; < Haddon v. Lott, 15 C. B., 411; 24 Lowe V. Harewood, Sir W. Jones, L. J., C. P., 49. 196; Cro. Car., 140; Odgers on L. & S., 139. 14 ^10 SLANDBE OF PEOPEETT. this aBsertion 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 oS 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 make 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 East, 1 ; Ward v. Weeks, 7 Bing., 211; Netern v. Hurley, 98 Mass., 211.) 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, 8 Bing. N. C, 871; Walden v. Peters, 2 Eob. (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 plaintiff's 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 Einer 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. Bell, 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. Einer 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. SLANDEE OF PEOPEETY. 211 The jury, however, returned the following verdict: "We, the jury, find the issue for the plaintiffs, and assess the damages on the land at $1,000 and exemplary damages at $500; total, $1,500. 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 su6fer because of the inability of Einer and wife to take care of him, or whether this interference with the sale was fi-om 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. Eeversed." 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. Dodge V. Ck)lby, 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 defendantsaid 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, whicK 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 3 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 oon» 212 SLANDER OF PEOPEETT. sequence of the slander must be named or the complaint is bad on demurrer. Linden t. Graham, 1 Duer, 670. 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. Bean, 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 603 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. 11. 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 in his business, is sufScientto support a verdict for sub- stantial damages without further proof of special damages. Collins v. Whitehead, 34 Fed. Rep., 131. 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 tlie 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, 49 Mich., 374, 13 N. W. Rep., 780. 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 believed 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, 2 Sandf. (N. Y.), 369; 5 N. Y. (1 Seld.), 14. SLANDER OF PEOPEETT. 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 fals^ pretenses, and declaring that he should institute a suit to annul the title, was held, under the chcumstances, not to show malice. McDaniel v. Baca' 3 Cat., 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 shojvn; 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. I 18. 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, 3 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 have lent 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 the 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., 349 ; 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 op 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 SLANDEE OF PEOFEETT. 2. To call a man a bastard while his father or other ancestor is alive may fee 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., 432; Humphrys v. Stanfeild, vel Stridfield, Cro. Car., 469; Godb., 451; Sir Wm. Jones, 388; 1 Eoll. Abr., 38; Turner v. Sterling, 2 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. Zachary, Aleyn, 3. 4. The plaintiff was desirous to sell his lands to £tny 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, 3 Keb., 158; 1 Vin. Abr., 553. 5. 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. Golding, 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, eame 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 ©r 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, 2 B. & 0.,486; 3 D. & R, 728; Watson v. Rej-uolds, 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 as follows : " Important notice. Horsehill estate. The public are respect- fully requested not to buy any property formerly belonging to A., B. and C. witlwut 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 30tb he was served with a writ. On February lOth he inserted an apology. But the jury, under the direction of Keating, J., found for the plaintiff. Ravenhill v. Upcott, 33 J. P., 299. 10. The plaintiff held one hundred and sixty shares in a silver mine in Cornwall, which he said were worth £100,000. Tollervey and Hayward each 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 arrived 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 thei'e was no sufficient allegation of special damage, and this although the declaration contained averments to the 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 bis 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. 723; 2 Hodges, 217; Hart and another v. Wall, 2 C. P. D., 146; 46 L. J., C. P., 337; 25 W. R., 37a 11. 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 SLANDEE OF PEOPEETT. 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 plaintifiE for £18 128. But the court of common pleas held that there was no evidence of malice to go to the jury; for malice is not to he inferred from the circumstance 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., 124; 11 Jur., 370; Hargreave v. Le Breton, 4 Burr., 2433. la. PlaintifiE had purchased the manor and castle of H. in fee from Lord Audley, and was about to demise them to Ralph 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 Eep., 18; Cro. Eliz., 197. And see Fitzh. Nat.-Brev., 116 (B. & B.); 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 plaintifiE again put the property up for sale and defendant again stopped the auction. Cockburn, O. 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. 15. 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, 2 Times L. R., 733, SLANDEE OF PEOPEETT. 217 16. The defendant wrongfully and maliciously caused certain persons who had agreed 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 he had no lien. Held, that the action was maintainable, though the persons who had the goods were under no legiil 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. 17. 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 I'urniture by bill of sale to her landlords by way of security for a debt she had contracted with them. After the widow's death 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 urider a bill of sale. On proof of tliese 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 thei;efore properly nonsuited. Steward v. Young, L. R., 5 C. P., 133; 39 L. J., C. P., 85; 18 W. R., 493; 33 L. T., 168. And see Blackham v. Pughr 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 damage 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 Bramwell;^ and it applies although no imputation is cast on the plaintiff'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 ; Rawl, 4 Welsby. H. & G., 531 ; Weth- Gott V. Pulsifer. 123 Mass., 335; erell v. Clerkson, 12 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: Western Co. v. Lawes Co., Lawes Chemical Ma"">^« C°-i'- .^•• L. R., 9 Exch., 318; Malachy v. 9 Ex„ 218, 223; 48 L. J., Ex., 171, 23 Soper,' 3 Bing. N. C, 371; Brook v. W. R., 5. 218 SLANDER OF PROPERTY. his own goods, or to advertise that he can make as good arti- cles as any otlier 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 fraud or dishonesty.' Illustrations — American Cases. 1. In 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 pui> 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, 2 Str., 898; 1 476; 54 I,. J., Q. B., 540; 53 L. T., Barnard., 289; Fitz., 121. 268; 49 J. P., 646; Johnson v. Hitch- 2Pudsey C!oal Gas Co. v. Corpora- cock, 15 Johns., 185. tion of Bradford, L. R., 15 Eq., 167; 'Young v. Hickens, 6 Q. B., 606. 42 L. J., Ch., 293; 21 W. R., 286; 28 ' ^Tarleton and others v. McGawley, L. T., 11; Mogul Steamship Co. v. Peake, 204, 270. M'Gregor, Gow & Co., 15 Q, B. D., 'Odgers on L. & S., 148. SLANDER OF PEOPEKTY. 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 ; f oi tlie 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 tradisman doing business in Waltham, that on May 3, 1886, one Guild, who sold defendant's goods on commission, called at plaintifiE'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 |1 18. 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 inserted 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 pair." 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 he 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 manufactured by M. J. Tobias and Robert Rockell and by other persons, averred that the defendant, intending to de- fame and Blander 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 PEOPEKTr. plaintiff in his said business the following words: "1. Tobias' watches [meaning the watches manufactured by the plaintiff] are bad. 3. S. J. Tobias&Co.'s watches are bad. 3. S. J. Tobias & Co. 's watches are inferior watches. 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 he 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., 243, n. 5; 1 Strange, 666; Cro. Eliz., 620; Foot V. Brown, 8 Johns. (N. Y.), 64; Dixie v. Fenn, Jones, 444; Freem., 25; 1 Vin. Abr., 477; Tobart v. Tippe, 1 Camp., 830. 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 or PEOPEETT. 221 ter." At the trial counsel in opening the case to the jury stated that the plaint- ifif 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 oflSce, 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. Dooling 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 Amekican 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 Stelietee (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., 323 ; 13 N. W. Kep., 177. 2. A narr. for slander averred that on a certain day, plaintiff then being, as he stUl is, engaged in the " business of butchering cattle for sale," de- 222 SLANDBE OF PEOPEETY. fendant uttered concerning him 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 suflRciently 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 dis- eased cattle for meat and human food. Blumhardt v. Rohr, 70 Md., 338, 17 Atl. Rep., 266. 8. 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. Brentraan v. Note, 3 N. Y. S., 420, 34 N. Y. St. Rep., 381. i. 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 pi-operly 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 j-ule, 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, 89 La. Ann., 336, 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, 70 Md., 328. 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, 70 Md., 328. 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 the meat becomes diseased, is proper. Blumhardt v. Rohr, 70 Md., 328, 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, 70 Md., 328, 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 SLANDER OF PEOPEKTT. 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, 3 Lathrop (132 Mass.), 335. 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 affected 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 ', Pulsifer, 8 Lathrop (123 Mass.), 335. 1 1. 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.), 433. 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 of English Cases. 1. The defendants falsely and without lawful occasion published a de- tailed analysis of the plaintiffs' artificial manure and 6f 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., 318; 43 L. J., Ex., 171 ; 23 W. R., 5; Thorley's Cattle Food Co. v. Massam, 6 Ch. D., 583; 46 L. J., Ch., 713; 14 Ch. D., 763; 28 W. R., 295 966; 41 L. T., 542; 42 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, 3 C. P. D., 34; 46 L. J., C. P., 3; 35 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 SLANDEE OF PEOPEETY. 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. suflfers special damage, will not an action lie?" (Young v. Macrae, 32 L. J., Q. B., 8); and counsel answei-s, ' ' 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 diight 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 dgclaiation 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-brown 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., 68; 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. Hdd, that an action ou the case lay against him. Newman v. Zachary, Aleyn, 3. § 10. Slander of Title to Letters Patent, etc.— It has beea 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 McElw^e V. Blackwell, 94 N. O., Mo. App., 339; Lovell Co. v. Hough- 361 ; Snow v. Tappan, 59 Mass. (5 ton, 54 N. Y. Sup. Ct,, 60. Gush.), 104; Meyrose v. Adams, 13 SLANDEE OF PKOPERTT. 225 tion 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 novelty, 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 by asserting a claim of right against his own knowledge that it was without foundar 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 t. Adrtms, 12 Mo. App., 339. 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 an 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. 8. 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 oat the words. McElwee v. Blackwell, 94 N. C, 261. Digest of English 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 restram the issue of this circular until the trial of the action. The defendants then commenced a cross-action claiming an injunction to restram the plamtitts from infringing their patents. Held, by Kay, J., that as t^"- ^^^ "°;;^; dence of mala fld^ °^ the part of the defendants, they- ought not to be re 1 Wren v. Weild, L. R., 4 Q. B., 730; 38 L. J.. Q. B., 337. 15 226 . SLANDEE OF PROPEETT. Strained from issuing the circular until their action had been dispdsed 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 Bee 46 and 47 Vict., ch. 57, sec. 32; Barney v. United Telephone Co., 28 Ch. D., 394; 33 W. R., 576; 52 L. T., 573; Driffield Cake Co. v. Waterloo Cake Co., 81 Ch. D., 638; 55 L., J. Ch., 391; 34 W. R., 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 plaintiff. 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 honaflde claim in sup- port of a right which, with or without cause, he fancied he had, but a mala fide 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. R., 4 Q. B., 730, 737; 10 B. & S., 51 ; 38 L. J., Q. B , 88, 827; 20 L. T., 277. And see Dicks v. Brooks, 15 Ch. D., 32; 49 L. J., Ch., 813; 29 W. R., 87; 40 L. T., 710; 43 L. T.,71; Hammersmith Skating Rink Co. V. Dublin Skating Rink Co., 10 Ir. R. Eq., 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, L. R., 13 Eq., 355; 41 L. J., Ch., 358; 20 W. R., 237; 26 L. T., 56; Axmann v. Lund, t.. R., 18 Eq., 330; 43 L. J., Ch., 655; 28 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 infringements 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 fide 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 be bona fide. Halsey v. Brotherhood (C. A.), 19 Ch. D., 386; 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; 29 W. R., 9; 43L. T., 366. 5. 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. CHAPTER XII. PUBLICATION OF DEFAMATORY MATTER. § 1. Publication Defined. 3. What Amounts to a Publication. 3. Illustrations — Digest of American Cases. 4. Digest of English Cases. , 6. Communications by Telegrams, Postal Cards^ et(S 6. Illustrations — Digest of American Cases. ' 7. Digest of English Cases. 8. Publication by Letters. 9. Illustrations — Digest of American Casea 10. Digest of English Cases. 11. Publication to Third Persons. 13l Illustrations — Digest of American Case& 18. Digest of English Cases. 14 Husband and Wife as Third Persons, 15. A Libel Deemed Published, when. 16. Illustrations — Digest of American Cases. 17. Digest of English Cases. 18. Joint and Several Liability. 19. The Composer Not Liable Without Publication. 20. The Law Stated by Best, C. J. 21. Illustrations — Digest of English Cases. 22. Sale and Delivery of Libelous Compositions. 83. Every Sale or Delivery a Separate Publication. 24. The Author of a Slander Not Responsible for Voluntary and Unjusti- fiable Repetitions. 35. Publication when by Agent. 26. Illustrations — Digest of American Cases. 37. Digest of English Cases. 28. Manner of Publication. 39. Manner of Sale and Delivery. 30. Injunctions Restraining the Publication of Defamatory Matter. 31. Illustrations — Digest of American Cases. 32. Digest of English Cases. § 1. Publication Defined. — Publication is the coramunica- tiou 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 228 PUBLICATION OF DEFAMATOET MATTES. 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 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 contrary 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 meaning.^ The burden is on the plaintiff 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 com- municates to a third person a libel hitherto unknown^ either p;roceeding wiU amount to a publication by the former.' The legal maxim applicable to such cases is the well-known one, qui facU jper alium facit per se: he who does a thing by the^ instrumentality of another does it by himself — a rule express- ive of the force of agency, and adopted alike by the criminal and the civil branches of oar 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. Eep., 354. iSheffil V. Van Dusen, 13 Gray Ins. Co. v. Crosdale, 6 Houst, 181; (Mass.), 304. Schuyler v. Busbey, 23 N. Y. S., 103} 2 Frolioh v. McKiernan, 84 Cal., 177; 68 Hun, 474; Warner v. Clark, 45 La. Allen V. Wortham, 89 Ky., 485 ; War- Ann., 863 ; Mitchell v. Bradstreet Co., nook V. Mitchell, 43 Fed. Rep., 428; 116 Mo., 226; Randall v. Evening Muetze v. Tuteur, 77 Wis., 236; News, 97 Mich., 136; Odgerson L. «& Woods V. Wyman, 47 Hun, 362; 123 S., 151. N. Y., 445; Burt v. Advertiser Co., 3 Smith, Manual Com. Law, 21. 154 Mass., 338; Witcher v. Jones, 17 « Flood on L. & S., 4a N. Y. a, 491 ; Delaware State F. & M. ILLETSTEATIONS — LIBEL. 229 _ 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 the 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- sider the filing of such plea and the failure to establish it as aggravating the tort. Eansone 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. i. The plaintiff, after so receiving a libelous letter from the defendant, send 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), 483, 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; MoCombs 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 " discharge 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., 224; 21 N. W. Rep., 324. 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 the jjresence 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), 2 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 Vechten v. Hopkins, 5 Johns., 211. 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. 230 PUBLICATION OF DEFAMATOKT MATTER. 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- 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 oflSoe of the defendant when a certain paper was printed, and he saw it printed there, and the paper produced by the plaintiff was, he believed, printed with the types used in the defendant's office, held, that this was prima facie evidence of the publication by the defendant. Southwick v. Stevens, 10 Johns,, 443. 13. Two persons having participated in the composition of a libelous letter written by one of them, which was afterwards put into the postoflBce 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 publica- tion 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, 30 Mass., 804. 15. 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 con- taining the libel, bearing date of a day -within the statute of limitations, together with evidence that it was purchased at a newspaper stand in 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 8, 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 in- volve 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 turpitude, but not technically criminal, and for which injuries no retraction can effect a remedy. Park v. Detroit Free Press Co. 73 Mich. 560, 40 N, W. Rep, 781, 1 L. R A., 599. ' 17a. The testimony of ministers who in their ministerial office have drawn from defendant statements of an ancient transaction which is the ILLUSTRATIONS SI^NDER. 231 ground of suit is not admissible to show publication of the slander. Vick- ers V. Stoneman, 73 Mich., 419, 41 N. W. Rep., 405w 18. In an action for libel brought against the Sooiete 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 directions or authority to make their 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 \»as 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. 19. 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., 483. 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) Slauder. 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 hands 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, 37 Iowa, 134. 2. Where the defendant had a single conversation only with Mrs. C, a married woman, in which he said: "What db 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, al- though Mrs. C. knew them to be false, and that the publication was suffi- cient to enable him to sustain the action. Marble v. Chapin, 133 Mass., 235. 3. Uttering slanderous words in the presence of the person slandered only is not actionable. Sheffil 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 232 PUBLIOATION OF DEFAMATOKY MATTER. the request, and repeated the whole or a portion of it. Held, that this would have no tendency to show that any third person heard such first conversa- 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 repetition was at her special request, and the maxim volenti nonfit injuricf will apply. Heller v. Howard, 11 Brad. (111.), 554 6. 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 mfiy be said to be spoken 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 Slander. — 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 safely 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 plaintiffs clerk. Delacroix v. Thevenot, 2 Stark., 63. 2. The delivery of a newspaper containing a libel to the proper officer of the commissioners of stamps and taxes for revenue purposes was a suffi- cient publication of the libel, although the proprietor of the paper was required by law so to deliver it. R v. Araphlit, 4 B. & C, 35; 6 D. & R., 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 compositor must hear it read. Baldwin v. Elphinston, 2 W. Bl., 1037. See Watts v. Fraser and another, 7 Ad. & E., 333; 6 L. J., K. B., 326; 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 printed, 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., 363; 10 B. & S., 236; 38 L. J., Q. B., 139; 17 W. R, 498; Lake v. King, 1 Lev., 341; 1 Saund., 131; Sid., 414; 1 Mod., 58. But merely to be in possession of a copy of a libel is no crime, unless some publication thereof ensue. R v. Beere, Garth., 409; 12 Mod., 219; Holt, 433; 3 Salk., 417, 646; 1 Ld. Raym.,414 See 11 Hargrave's St. Tr., 333, sub. Entiok v. Carrington. 4. 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., 302; Clegg v. Laffer, 3 Moore & Soott, ILL0STJRATIONS — DIGEST OF AMEKICAN CASES. 238 737; 10 Bing., 350; Warren v. Warren, 4 Tyr., 850; 1 C, M. & R., 250; Ship- ley V. Todhunter, 7 C. & P., 680. 5. The defendant wrote a letter and gave it to B. to deliver to the plaint- iff. It was folded, but not sealed. B. did not read it, but conveyed it direct to the plaintiff. Held, no publication. Clutterbuck v. Chaffers, 1 Starli., 471; Day v. Bream, 3 Moo. & Rob., 54. So it is no defense that a third 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. R., 10 C. P., 502; 32 L. T., 403. § 5. Communications by Telegrams, Postal Cards, etc.— Comraunications in the nature of telegrams and postal cards containing defamatory matter, transmitted in the usual man- ner, are necessarily communicated to all the clerks through whose hanJs they pass.^ § 6. Illastrations — Digest of American Cases. — 1. Where an information charges that the accused did wilfully and ma- liciously libel and defame the prosecutrix by sending her through the mails an envelope with certain libelous indoisements thereon, it is sufficient, though it does not charge that the matter complained of was wilfully and maliciously published. State v. Armstrong, 106 Mo., 395. 2. The act of sending through the mails an envelope bearing the device " Bad Debt Collecting Agency," addressed to a person in care of her em- ployers, is a sufficient publication of a libeL State v. Armstrong, 106 Mo., 397; 16 S. W. Rep., 604. 3. Letters sent in open envelopes indorsed "Bad Debt Collecting Agency," which are read before reaching their destination, and which state among other things that the correctness of the claim against the ad- dressee is guarantied, that if she wishes to maintain a reputation for fair dealing and honesty she must pay the claim at once, and that a list is fur- nished all merchants of those who will not pay their debts, is libelous per se, and special damages need not be alleged thereon. Burton, Lingo & Co. v.O'Niell, 6 Tex. Civ. App., 613; 25 S. W. Rep., 1013. 4. The sanding of a postal card through the mails by a bank to its cor- respondent, from whom it had received a draft on a mercantile firm for collection, stating that such draft is in the hands of a notary, when the draft in question had in fact been paid to the bank, is a sufficient publication of a libel. Continental Nat. Bank v. Bowdre, 92 Tenn., 723; 23 S. W. Rep., 131. 5. A telegraph message containing the words " Slippery Sam, your name is pants," signed and delivered in the ordinary form and transmitted over the wires of the telegraph company, is fairly susceptible of a libelous meaning. Peterson v. Western Union Tel. Co., 67 N. W. Rep., 646. 6. A telegram directed to a minister of the gospel, containing the words '■ The citizens of Wisconsin demonstrated you are an unscrupulous liar, 1 Whitfield et al. v. S. E. Ry. Co., L. R., 9 C. P., 393; 48 L. J., C. P., 161; E., B. & E., 115: 27 L. J., Q. B.. 329; 23 W. R., 878; 30 L. T., 333; 7 Chicago- 4 Jur. (N. S.), 688; Robinson v. Jones, Legal News, 30. 4 L. R., Ir., 891; Williamson v. Freer, 234: PUBLICATION OF DEFAMATORY MATTER. (signed) A Marshfleld Democrat," is a libel per se. Munson v. Latbrop, 71 N. W. Rep., 596. § 7. Digest of Englisli Cases.— 1. Tbe defendant sent two telegrams to the plaintiff's father, as follows: (1) "Come at once to Leicester if you wish to save your child from appear- ing before the magistrates." (3) "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." HeZd actionable. Williamson v. Freer, L.R., 9 C. P., 393; 43 L. J., C. P., 161; 23 W. R., 878; 30 L. T., 333; 7 Chicago Legal News, 30. Lord Coleridge, C. J., said: If this matter 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 communicated by means of a telegram. Ibid. 2. The transmission by post of an uncovered post-card, containing matter libelous of the person to whom it is addressed, is an actionable publication of the libel; and it is no defense to an action for the libel that the writer had an interest in making, and the person addressed a corresponding in- terest in receiving, the communication; that it was made 6ona .^de, be- lieving the contents to be true, without malice, and in the bona fide belief that the mode of communication used was reasonable. Robinson v. Jones, 4 Ir. L. Rep., 391. 3. It is a suflScient publication of a libel to send a postal card on which is the following message: " Received the amount all right, nicely caught in your own trap, — honesty is the best policy, — your confidence games will work no more, you do not need a diploma, rest on your laurels, deeds go further than words, though your words of Saturday and Monday were strong enough. Au revoir." O'Brien v. Semple, Montreal L. Rep., 6 Super. Ct., 844. § 8. Publication by Letters.— The act of sending a letter or other sealed communication containing libelous matter by mail is not necessarily a publication of such martter, and al- though addressed to some person other than the one affected or intended to be affected by the libelous matter, the publica-^ tion does not appear to be sufiBcient in law to sustain an action until read by or in the presence of some third person or per- sons.i And the person to whom such letter or other similar communication is addressed is not justified in publishing it, even by the consent of the person from whom he received it. The sending of such a letter to the person affected or intended to be affected thereby has been held a sufficient publication 1 McCoombs v. Tuttle, 5 Blackf., ton v. Wooley, 37 Mo. App., 15; Over 431; Mielenz v. Quasdorf, 68 Iowa, v. Shiffling, 103 Ind., 191; Brown v. 736; Snyder V. Andrews, 6 Barb., 43; Vannaman, 85 Wis., 451; 55 N. W. Kiene v. Ruff, 1 Iowa, 483. See, Rep., 183; Coles v. Thompson, 7 Tex. also, Allen v. Worthan, 89 Ky., 485; Civ. App., 666. Muetze v. Tuteur, 77 Wis., 236; Hous- ILLUSTRATIONS — DIGEST OF AilEKICAN CASES. 235 ia criminal prosecutions, upon the ground of its tendency to provoke a breach of the peace, But where no third person reads or hears it read, it is not sufficient to support a civil ac- tion.i ^here an intention, however, on the part of the sender to publish the matter is shown, it is sufficient.^ g 9. Illustrations — Digest of American Cases.— 1. The act of giving a letter containing matter defamatory of another to a clerk to copy, which he does, is a sufficient publication in law. State T. Mclntire, 20 S. E. Rep., 721: 115 N. C, 769. 2. And so Is the sending of a letter containing libelous matter through the mail to a person who, because of illiteracy, is obliged to have it read by others, Allen v. Worthan, 89 Ky., 485; 13 S. W. Rep., 73. 3. So, also, is the sending through the mail of envelopes vrith the clause " For the collection of bad debts " printed on them. Muetze v. Tuteur, 77 Wis., 236; 46 N. "W. Rep., 123. 4. So it is sufficient publication to send a letter through the mail imput- i-ig an indictable ofifense, punishable corporally, to the person charged. Houston v. WooUey, 87 Mo. App., 15. 5. A letter written voluntarily, and for the sole benefit of the writer, to another's employer, using language such as must have been understood by the employer as charging the employee with having obtained goods from the writer by fraudulent means, was held to be libelous, and not a privileged communication. G. A complaint alleging that a libel was written and sent by mail to the plaintiff, and showing no further publication, is bad on demurrer. Spaits V. Poundstone, 87 Ind., 522. 7. Sending a sealed libelous letter to the plaintiff himself is not a ground for an action by him. Every letter sent is presumed to have been sent sealed. In an action for a libelous letter on the plaintiff, publication must be shown. Stating it to have been by means of its being sent to, and received by, the plaintiff is bad, and, as showing on the record itself no publication, is good cause for arresting the judgment. Lyle v. Clason, 1 Cai, 581. 8. Throwing a sealed letter, addressed to the plaintiff or a third person, into the inclosure of another, who delivers it to the plaintiff himself, is not such a publication as would render the defendant responsible in an action for damages. It would have been otherwise had such a third per- son read the letter, or, on hearing of it, required the plaintiff to do so. State V. Potter, Dudley, 303; 32 Am. De&, 49. 9. While a prosecuting attorney had charge of a pending criminal pros- ecution against the son of one C, Y. sent a letter to C. by mail, which was received and read, stating that he was reliably informed that C. had bribed the prosecuting attorney, naming him, to release his son by employing him iDe Crespigny v. Wellesley, 5 ^Delacroix v. Thevenot, 2 Starkie, Bing., 402, 406; Lyle V. Clason, 1 Cai., 62; Young v. Clegg, 93 Ind., 371; 581; Fonville v. Nease, Dudley, 303: Kiene v. Ruff, 1 Iowa, 482; Snyder 33 Am. Dec, 49; Mielenz v. Quas- v. Andrews, 6 Barb., 43; McCoombs dorf, 68 Iowa, 726; Barrow v. Lew- v. Tuttle, 5 Blackf.. 431; Van Cleef ellen, 1 Hob., 152. v. Lawrence, 2 City Hall Rec., 41. 236 PUBUOATION OF DEFAMATOET MATTEE. upon a contingent fee to conduct a suit against Y., suggesting that the giver of the bribe is as guilty as the taker. Held to be a libel, and the pub- lication sufficient in law. Young v. Clegg, 93 Ind., 391. 10. Whore in an action for libel, the evidence showed that the letter containing the libelous matter was written in Dubuque, and in the Ger- man language, and that the defendant gave it to a third person to tran- scribe, and that the transcript made by that third person was forwarded from Dubuque to Switzerland, held, 1. That a publication in Iowa was sufficiently proved. 3. That the cause of action did not arise in a foreign country. 3. That it was not necessary for the plaintiff, to entitle him to recover, to show that the person to whom the letter was sent understood the German language. 4. That it was not necessary for the plaintiff to allege in his declaration that the person to whom the letter was directed was a German, by birth or education, or that he understood the German language, in order to entitle him to offer the letter in evidence. 5. That the proof of a publication of the letter in Switzerland was only necessary for the purpose of enhancing the damages. Kiene v. Ruff, 1 Iowa, 483. § 10. Digest of English Cases.— 1. A libel by writing a reproachful letter, sealed and delivered to the party libeled, and not published to others, is punishable, as tending to a breach of the peace, but no civil action can be maintained thereon. Bar- row V. Lewellin, 1 Hoh, 153. 3. If a man receives a letter with authority from the author to publish it, the person receiving it will not be justified, if it contain libelous mat- ter, in inserting it in the newspapers. No authority from a third person will defend a man against an action brought by a person who has suffered from an unlawful act. If the receiver of a letter publish it without au- thority, he is, from his own motion, the wilful circulator of slander. De- Crespigny v. Wellesley, 5 Bing., 393. 3. In an action for a libel contained in a letter written by the defendant to the plaintiff, proof that the defendant knew that the letters sent to the plaintiff were usually opened by his clerk is evidence to go to the jury of the defendant's intention that the letter should be read by a third person. Delacroix v. Thevenot, 3 Stark., 68. 4. Defendant being a competitor with plaintiffs for a contract with the navy board for African timber, the plaintiffs obtained the contract; the defendant then agreed to supply the plaintiffs with a portion of the timber, and made no objection to taking their bills in payment; this agreement, I however, having been rescinded on a disagreement as to the terms, the de- fendant wrote to a merchant at Sierra Leone, who was to supply the tim- ber in question, and of whom the defendant was a creditor and the sole correspondent in London, a letter reflecting deeply on plaintiffs' mercan- tile character, and putting the merchant on his guard against them, for which, as a libel, the plaintiffs brought an action. The transmission of the letter by defendant to his correspondent was held a sutBcient publication by defendant. Ward and Somes v. Smith, 6 Bing., 749. 5. A letter written by the defendant and containing a libel was dated in Essex, and addressed to a person in Scotland. It was proved to have been in the Colchester postoffice, and, after being marked there, to have been forwarded tq London on its way to Scotland. It was produced at the trial. PUBLICATION TO THIED PEESONS HECESSAEY. 237 with proper post marks, and with the seal broken, but not by the party to whom it was addressed. Held sufficient prima facie evidence of a publi- cation in Essex, and that it had reached its address in Scotland. Warren V. Warren, 4 Tyr., 850: 1 C, M. & R, 150. 6. A letter to the manager of a property in Scotland, in which plaintiff and defendant were jointly interested, related principally to the prop- erty and the plaintiff's conduct respecting it, but also contained a passage reflecting on his conduct to his mother and aunt. Held, that the latter part could not be privileged as a confidential communication. Warren v. Warren, 4 Tyr., 850; 1 C, M. & R., 150. 7. A man has a right to communicate to any other any information he is possessed of in a matter in which they have a mutual interest; and it is a perfectly legal and justifiable object for one to induce another to become a part}' to a suit as to a subject-matter in which both have an interest; and it is not because strong or angry language is used in such a communi- cation that it will be a libel, but the jury must go further and see, not merely whether expressions are angry, but whether they are malicious. If a letter containing a libel have the post mark on it, that is prima facie evi- dence of its having been published. Shipley v. Todhunter, 7 C. & P., 680. 8. In an action for libel, the defendant pleaded that the letter contain- ing the libel was intended to come into the hands of the plaintiff himself, but, by mistake, was directed by the defendant and delivered through the postofflce to the plaintiff's employer, instead of to the plaintiff. Held, on demurrer, that the above plea was bad, as the letter was not a privileged communication, and as the legal inference of malice would have arisen, even though the letter had been addressed and delivered to the plaintiff, and that the absence of intention to give the plaintiff a remedy by civil action for the malicious act (to which the plea amounted) was no defense. Fox V. Broderick, 14 Ir. C. L. Rep., 453. §11. Publication to Third Persons Necessary.— Proof of the publication of defamatory words is essential to the mairh 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 ;i 1 Delacroix v. Thevenot, 3 Stark., 6a 238 PUBLICATION OF DEFAMATOET MATTER. p— 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.' § 12. Illustrations — Digest of American Cases. — 1. The words not being of a confidential character, it cannot be objected that speaking them 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. Rep., 332. 2. Proof that a man conversed with his wife in a room in such a tone of voice that he could be heard outside the room is sufficient to raise a pre- 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. Sesler v. Montgomery 78 Cal., 486, 19 Pac. Rep., 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), 19 Pac. Rep., 686. 4. Pending the prosecution of a criminal charge against A., the defend- ant wrote to A.'8 father stating that he was reliably informed that the prosecuting 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. 6. 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. § 13. Digest of English Cases. — 1. Rev. Samuel Paine sent his servant to his study for a certain paper, which he wished to show Brereton; the servant by mistake brought a libelous epitaph on Queen Mary, which Paine inadvertently banded to Brereton, supposing it to be the paper for which he had 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. & Ey., 312), but would not be sufficient in a criminal case. R. v. Paine, 5 Mod., 167. iWriman v. Ash, 13 C. B., 836. Lyle v. Clason, 1 Caines, 581; Ham- And see Cheritree v. Roggen, 67 mond, N. P., 287; Waitsell v. Hoi- Barb., 134; Kiene v. Ruff, 1 Iowa, 482. man, 2 Had., 173; Fonville v. Nease, 2 Sheffil et ux. v. Van Dusen at ux., Dudley (S. C), 303; Peacock v. Eey 79 Mass., 304; Edwards v. Wooton, nail, 2 Browne, 151 ; Spaits v. Pound- 12 Co., 35; Hicks'. Case, Pop., 139; stone, 87 Ind., 522; 44 Am. Rep., 773; Phillips v. Jansen, 3 Esp. R., 634; Sullivan v. Sullivan, 48 111. App., 435. ILLUSTEATIOXS — DIGEST OF AMERICAN CASES. 239 2. For in a criminal case it is essential that there should be a guilty in- tention. R V. Lord Abingdon, 1 Esp., 338; Brett v. Watson, 20 W. E., 733; Blake v. Stevens, 4 F. & F., 233; 11 L. T., 543. 3. The defendant by mistake directed and posted a libelous letter to the plaintiff's employer instead of the plaintiff himself. Held, a publication. Fox V. Broderick, 14 Ir. C. L. Rep., 453. And see Thompson v. Dashwood, 11 Q. B. D., 43; 53 L. J., Q. B., 425; 48 L. T., 948; 48 J. P., 55. § 14. Husband and Wife Snfficient 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 sufficiently 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 suflScient publication.' The delivery of a libel by the author to his wife " in confi- dence" is privileged.* The fact that defendant's wife was 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.' § 15. 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 unread into the possession and control of the plaintiff.' That some third person had the opportunity of reading it in the interval is not sufficient if the jury are satisfied that he did not in fact avail himself thereof, even though it is clear that the defend- ant desired and intended publication to such third person. § 16. 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 inserted without his orders and against his will (The Commonwealth v. Kneeland, Thatcher's C. C, 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. 1 Phillips V. Barnet, 1 Q. B. D., 436. < Trumbull v. Gibbons, 3 City Hall 2Wenman v. Ash, 18 C. B., 836; 23 Recorder, 97; Jones v. Thomas, 84 L. J., C. P., 190; 1 C. L. R, 593; 17 W. R, 104; 53 L. T., 678; 50 J. P., 149. Jurist, 579; Jones v. Williams, 1 5 odgers on L. & S., 154. Times L. R, 572. ^ R- v. Burdett, 4 B. & Aid., 143. 3 But see Sesler v. Montgomery, 78 'Lyle v. Clason, 1 Cai. (N. ^0, 581; Cal., 486; 31 Pac. Rep., 185; Trum- Mielenz v. Quasdorf, 68 Iowa, 7^6. bull' V. Gibbons, 3 City HaU Rec (N. Y.), 97. 240 PUBLICATION OB" DEFAMATOKY MATTER. § 17. 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 Barnard., 806). But later judges would not be so strict; the sickness upstairs, if prop- erly proved by the defendant, would now be held an excuse. Odgers on L. & a, 161 ; R. V. Almon, 5 Burr., 2686; R. v. Gutch, Fisher and Alexander, Moo. & Mai., 438. 2. The defendants were news venders on a large scale at the Royal 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 plaint- iff; 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 defend- ants 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. Held, that defendants had not published the libel, but had only innocently dis- seminated it. Emmens v. Pottle & Son (C. A.), 16 Q. B. D., 354; 55 L. J„ Q. B., 51; 34 W. R., 116; 58 L. T., 808; 50 J. P., 228. 3. The plaintiff's agent, with a view to the action, called at the oflSce of the defendants' newspapei-, 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 defendants, 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. 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- rant of the contents of the parcel, for he is but doing his duty in the Ordi- nary way. Day v. Bream, 2 M. & Rob., 54. § 18. Joint and Several Liability Every one who prints or publishes a libel may be sued by the person defamed, and to such an action it is no defease 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- THE LAW STATED BY BEST, 0. J. 24:1 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, \% 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 care- less editor or with the actual composer of the libel cannot com- pel either of his co-defendants to repay him the damages which he has been compelled to pay.* § 19. 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 offense.' Lord Coke: " If one reads a libel, that is no publication of it ; or if he hears it read ft is no publication of it, for before be reads or hears it he 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 knows it to be a libel he reads it to others, that is an unlawful publication of it."* § 20. 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 person will defend a man against an action brought by a per- son who has suffered from an unlawful act. If the receiver of a letter publish it without authority, he is, from his own mo- tion, the wilful circulator of slander. If the person receiving 1 Atkins vr. Johnson, 43 Vt., 78; 677; Shaokell v. Rosier, 29 Com. L., Shaokell v. Rosier, 2 Bing., 234; Lud- 438; 3 Bing., 334 wig V. Cramer, 53 Wis., 193; Dexter 'Maloney v. Bartley, 3 Camp., 213; V. Speaj:, 4 Mason, 115; Burdett v. Turton v. New York Recorder Ca, Abbot, 5 Dow., H. L., at p. 201; Bald- 144 N. Y., 144; Adams v. Lawson, 17 win V. Elphinston, 3 W. Bl, 1037. Gratt., 250; ShefBl v. Van Dusen, 79 2 0dgers on L. & S., 158; Colburn Mass., 304; Spaits v. Poundstone, 87 •v. Patraore, 1 C, M. & R., 73; 4 Tyr., Ind., 533. 4 John Lamb's Case, 9 Rep., 60. 16 242 PUBLIOATION OF DEFAMATOEY MATTER. a libel may publish it at all, he may publish it ia whatever man- ner 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 trouble to erase, and which it might be difficult, if not im- possible, ever completely to remove. Before he gave it gen- 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 reflect on the degree of suffering occasioned by loss of character, and com- pare it with that occasioned by loss of property, the amount of the former injury far exceeds that of the latter." ^ § 21. 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. Seld, that both Hudson and Morgan had published 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 iDe Crespigney v. Wellesley, 5 Drake, Holb., 425; Rex v. Cooper, 15 Bing., 403; Odgers on L. & S., 159. L. J., Q. B., 206; Miller v. Butler, 6 See, also, Rex v. Bear, Garth., 407; Cush., 71; Cochran v. Butterfleld, 18 Rex V. Paine, 5 Mod., 173; Rex v. N. H,, 115; Dole v. Lyon, 10 Johns., Williams, 3 Camp., 646; Rex v. 461. EVERY SALE OE DEUVEET A SEPARATE PUBLICATION. 2J:3 knowledge and in his absence. R. v. Walter, 3 Esp., 31; Storey v. Wallace, 11 IlL, 51; Scripps v. Reilly, 88 Mich., 10. So is the printer, though he had no knowledge of the contents. R. v. Dover, 6 How. St Tr., 546; and see 2 Atkyns, at p. 473. So, in England, the acting editor is always held liable. Watts V. Fi-aser and another, 7 C. «& P., 369; 7 Ad. & E., 333; 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 plaintiflf is bringing another action against Bingham at the same time. Harrison v. Peai'ce, 1 F. & F., 567; 3-3 L. T. (O. S.), 398. 5. " 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, 1 F. & 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, 3 M. & Rob., 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 London. Creevy v. Carr, 7 C. & P., 64; Hunt v. Algar and others, 6 C. & P., 345. § 22. 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 presumablj'- 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.^ § 23. 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 1 Folkard on Libel, 435. Harmer, 14 Q. B., 185 : King v War- * Flood on L. & S., 46 ; Staub v. Van ing, 5 Esp. Cas., 13 ; Griffiths v. Lewis, Benthuysen. 36 La. Ann., 467; Bige- 7 Ad. & El., 61; Johnson v. Hudson low V. Spragne, 140 Mass., 435; Thorn et al., 7 Ad. & El., 233; Day v. Bream. V. Moser, 1 Denio, 488; Brunswick v. 3 M. & Rob., 54 244 PTJBUCATION OF DEFAMATOBT MATTEB. 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 contain any libelous matter, he will not be deemed to have published the libel which he thus inno- cently disseminated.^ § 24. The Author of a Slander is Not Responsible for Tol- untary and Unjustifiable Repetitions. — It is too 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 laAV 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.' § 25. Publication —When by Agents, etc.— Every one who requests, procures or commands another to publish a libel is iChubv.FIannagan,6C. &P., 431. Allen, 1 F. & F., 125; Dixon v. 2 0dgers on L. & S., 161. Smith, 5 a & N., 450; Parkins v. 3 Harrison v. Pearce, 1 F. & F., 567; Scott, 1 H. & C, 153; Derry v. Hand- 33 L. T. (O. S.), 298; Tucker v. Law- ley, 16 L. T. (N. S.), 263; Stevens v. son, 2 Times L. R, 593; Hastings v. Hartwell, 11 Met, 542, 550; Terwilli- Stetson, 13 Lathrop (Mass.), 329; ger v. Wands, 17 N. Y., 54; Shurtlefl Ward V. Weeks, 4 Moore & Payne, v. Parker, 130 Mass., £93; Elmer v. 796; 7 Bing., 311; TunniclifiEe v. Fessenden, 5 L. E. A., 724; 23 N. E. Moss, 3 Car. & K, 83; Barnett v. Rep., 635; 151 Mass., 359. ILLUSTRATIONS DIGEST OP AMERICAN CASES. 245 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 verhatimy 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- ble for printing them, still it is more satisfactory, if possible, to make the author of the scandal defendant, and if he speak the words under such circumstances as will ensure their being printed, or if in any other way he requests or contrives their publication in the paper, he is liable in an action of libel as the actual publisher. Qui faoit per alium facit per se} % 26. 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 published 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 was made by the agent in the course of the business of the coiu- pany, in which 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 liable, is conspicuously posted forty days in the ticket office of a railroad 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. Tlie refusal of the general passenger agent of the company to interfere with the publication a month before its discontmu- ance is evidence, in connection with the other evidence, of a ratification and of a publication by the company from that time. Fogg v. Boston & L. B. Co. (Mass.), 20 N. E. Rep., 109. lOdgers on L. & S.. 156; State v. Agency, §§ 740, 741; Gillian v. S. & Smith, 78 Me., 260. See Mechem on N. Ala. R. R. Co.. 70 Ala., 208. \ 246 PUBLICATION OF DEF-VMATOET MATTES, § 2Y. 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 his approval. This was held a publication by Cooper, although the editor knew of the facts from other quarters as well. R. v. Cooper, 15 L. J., Q. B., 206; 8 Q. B., 533; 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 hope they will give publicity to the matter." Ellis added, " And so do 1" 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 Prescott and Ellis had directed the publi- cation of the account which appeared in the papers. Parkes v. Prescott and Ellis, L. R., 4 Ex., 169; 38 L. J., Ex.,' 105; 17 W. R, 773; 20 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 directed the printing and publish- ing of such manuscript. Bond v. Douglas, 7 C. & P., 636; R. v. Lovett, 9 C. & P., 463; Burdett v. Abbot, 5 Dow, H. L, 201; 14 East, 1. And this is so although the editor has cut the article up, omitting the most libelous passages, and only publishin'g the remainder. Tarpley v. Blabey, 3 Bing. N. C, 437; 2 Scott, 643; 1 Hodges, 414; 7 C. & P., 395; Pierce v. Ellis, 6 Ir. C. L. R, 55. § 28. 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 postofBce telegram is an un- authorized publication so far as to prevent a communication from being privileged, though made iona 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.^ 1 Williamson v. Freer, L. R., 9 G 2 Flood on L. & S., 47; Wood v. P., 393; 43 L. J., 161. Gilchrist, 1 Code R N. Y., 117; Adams ILLUSTRATIONS — DIGEST OF AMERICAN CASES. 246a § 29. Manner of Sale or Belivery Immaterial.— It makes no difference in law whether the libel is sold to the public or Avhether 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.* § 30. Injanctions Sestraining the Publication of Defam- atory Matter. — Upon the question of relief by injunction against the publication of defamatory statements affecting the character or business of persons, the authorities both in Eng- land and America present a noticeable want of uniformity, and are indeed wholly irreconcilable. The earlier English doctrine, and that which seems most in accord with the principles gov- erning the jurisdiction of equity by way of injunction, was that the preventive jurisdiction being limited to the protec- tion of property rights which are remediless by the usual course of procedure at law, courts of equity would not restrain the publication of libels or works of a libelous nature, even though such publications were calculated to injure the credit, business or character of the person aggrieved, and that he would be left to pursue his remedy at law.^ § 31. Illustrations — Digest of American Cases. — 1. A court of equity cannot, under its common-law powers, restraij) the publication of a mere libel. This seems to be most in accordance with the authorities in this country as well as in England. Mr. Justice Waterman in Everett Piano Co. v. Bent, 60 UL App., 372; Boston Dietite Co. v. Flor- V. Lawson, 17 Gratt., 250; Spaits v. Furniture Ca v. Haney School Fur- Poundstone, 87 Ind., 522; Sheffil v. niture Co., 92 Mich., 558; 52 N. W. Van Dusen, 79 Mass., 304 Rep., 1009; Salomons v. Knight, L. R, 1 Lord Denman. C. J., 9 A. & E., 149. 2 Ch.,294; Flint v. Hutchinson Smoke 2 3 High on Injunctions, 3d ed.. Burner Co., 110 Mo., 493; 19 S. W. §1015; 23 SoL J., 865, 877; 14 Ir. L. Rep., 804; Mayer v. Journeyman's T., 308; 15 L. J., 248; 70 L. T., 22; Stone Cutters Ass'n, 47 N. J. Eq., 519; Chi. Leg. News, vol. 13, 98; 1 O. L. 20 Atl. Rep., 492; Everett Piano Co. J., 252; 9 Cent L. J., 314; 2 Man. L. v. Bent, 60 111. App., 372; Wolfe v. J., 49; Monson v. Tussaud, 9 Reps., Burke, 56 N. Y., 115: Whitehead v. 177- IQ B, 671; Pre-Digested Food Tipson, 119 Mass., 484; Kidd v. Horry, Co V McNeal, 1 Ohio N. P., 266; 28 Fed. Rep., 773; Baltimore Wheel Reyes v. Middleton (Fla., 1895), 17 Co. v. Bemis, 29 Fed. Rep., 95; Con- So. Rep., 937; Lee v. Gibbings, 67 L. sumers' Gas Co. v. Kansas City, etc., T. (N. S.), 263; Grand Rapids School Co., 100 Mo., 501. 2M65 P0BLIOATION OF DEFAMATOET MATTER. ence Mfg. Co., 114 Mass., 69; High on Injunctions (3d ed.), §§1015, 1093. See, also, cases cited in Appellant's Brief, 60 111. App., 375, 370, 377. 2. Courts of equity have no jurisdiction to festrain a slander of title to letters patent until the question of slander has been determined by a jury in an action at law. Flint v. Hutchinson's Smoke Burner Co., 110 Mo., 492. 3. The question of slander or libel should first be determined by a jury in an action of law, and, after a verdict for the plaintiff, he can have an injunction to restrain the further publication of that which the jury has found to be actionable libel or slander. Flint v. Hutchinson's Smoke Burner Co., 110 Mo., 493. 4. An injunction will not issue to restrain a publication, though it be a libel on complairiant's business. Pre-Digested Food Co. v. McNeal, 1 Ohio (N. P.), 266. 5. An injunction to restrain slander of title is not authorized by the mere fact that the defendant is insolvent. Reyes v. Middleton, 36 Fla., 99; 17 So. Rep., 937. 6. In New Jersey a court will not interfere by injunction to prevent the circulation of a slander or libel, even though it may tend to injure the per- son affected in his business or employment. Mayer v. Journeymen's Stone Cutters Ass'n, 47 N. J. Eq., 519; 20 Atl. Rep., 492. § 32. Digest of English Cases. — 1. " The publication of a libel is a crime ; and I have no jurisdiction to prevent the commission of crimes; excepting of course such cases as be- long to the protection of infants, where a dealing virith an infant may amount to a crime — an exception arising from that peculiar jurisdiction of this court." Lord Chancellor Eldon in Gee v. Pritchard, 2 Swanst., 413 (1818). 2. The court will not interfere by injunction to prevent the publication of a libel. Clark v. Freeman, 11 Beav., 112; Martin v. Wright, 6 Sim., 297; Seeley v. Fisher, 11 Sim., 581; Fleming v. Newton, 1 H. L. Cas., 363; Mul- cern v. Ward, 13 L. R., Eq., 619; Prudential Assurance Co. v. Knott, 23 W. R., '249; L. R, 10 Ch., 142; Shepherd v. Trustees, Ind. L. R., 1 Bomb., 133. 3. In 1877 it was held that the court of chancery had power under the judicature act to restrain the publication of an advertisement containing false representations calculated to injure the plaintiff's trade. Thorley's Cattle Food Co. v. Massam, L. R., 6 Ch. D., 582. 4. Where in an action for libel the matter complained of is found to be libelous, the court has power to grant an injunction to restrain the de- jfendant from publishing similar libels if such publication would be in.ju- jrious to the plaintiff's trade. Saxby v. EasterbrocJk, 27 W. R. 188; L. R, 3 C. ■ P: D., 339; Day v. Brownrigg, 27 W. R, 217; L. R., 10 Ch. D., 294. 5. In the case of Brook v. Evans, a motion was made by the defend- ants to restrain the circulation of a report, circulated by the plaintiff, of the proceedings on the motion for an injunction as being libelous, and in contempt of court. The motion was refused. Brook v. Evans, 8 W. R, 688. CHAPTEE XIIL CERTAINTY OF IMPUTATION. § 1. The Subject Classified. 3. Illustrations — Digest of American Cases, 3. The DefamatioB Must be Apparent. 4. Arson — Illustrations — Digest of American Cases. 5. Digest of English Cases. 6. Adulteration of Food. 7. Attempt to Commit a Felony — Digest of English Cases, 8. Bigamy — Digest of American Cases — Digest of English Cases. 9. Embezzlement — Digest of American Ca'^es — Digest of English Cases. 10. False Pretenses — Digest of American Cases — Digest of English Cases, 11. Forgery — Digest of American Cases — Digest of English Cases. 13. Larceny — Digest of American Cases — Digest of English Cases. 13. Murder — Digest of American Cases — Digest of English Cases. ' 14. Perjury — At Common Law — Digest of American Cases — Under Statutes — Digest of English Cases. 15. Receiving Stolen Goods — Digest of English Cases. 16. Treason — Digest of English Cases. 17. The Person Defamed Must be Certain. 18. Illustrations — Digest of American Cases. 19. Digest of English Cases. 20. Words Applying to a Class. 21. The Rule Stated by Chief Justice Shaw. 22. Illustrations — Digest of American Case& 23. Digest of English Cases. 24. Defamatory Words Applicable to Different Persons. 25. EflBgies, Pictures and Caricatures. 26. Illustrations — Digest of American Cases. 27. Digest of English Cases. 28. Indirect Defamation. 29. Illustrations — Digest of English Cases. 30. The Imputation Need Not be in Positive Language. 31. The Law Stated by Chief Justice Shaw. 32. Illustrations— Digest of American Cases. 33. Digest of English Cases. 34. The Defamatory Charge — How Conveyed. 35. First, by Adjective Words — Illustrations — Digest of Americaii Cases. 36. Digest of English Cases. 37. Second, by a Sentence in the Form of a Question— Illustrations — Digest of American Cases. ^ 248 OEBTAINTY OF IMPUTATION. § 38. Digest of English Cases. 39. Third, in a Question and Asswer — Illustrations — Digest of Ameri- can Cases. 40. Fourth, by Repeating Gossip — Illustrations — Digest of American Cases. 41. Digest of English Cases. 42. Fifth, by Signs and Gestures. 43. Intention Indicated by Signs, et& § 1. The Subject Classified.— Where the meaning of the defamatory words is clear or can be ascertained, two questions arise: (1) Is the language of the imputation suflBciently definite to injure the reputation of the complaining party? (2) Is the language of the imputation sufiBciently certain as to the party who is defamed? And unless both of the ques- tions can be determined in the aflarmative no action lies, for the law requires a specific imputation cast with certainty upon the person bringing the action. In every action for defamation two things are necessary: (1) A defamation apparent from the words themselves, for no innuendo can alter the sense. (2) Certainty as to the person who is defamed, for no in- nuendo can render certain that which is uncertain. § 2. Illustrations — Digest of American Cases. — 1. If slanderous words which impute a criminal offense are not so un- derstood by their hearers, the speaker is not liable for their utterance; but the burden of proof rests upon him to establish that fact. Myers v. Dresden, 40 Iowa, 660. 2. The words alleged were the calling of the plaintiff's children bastards, " meaning to insinuate and to be understood that said children were illegiti- mate and not born in lawful wedlock, and that the plaintiff had been unfaith- ful to her husband, and had not observed and kept hear marriage covenants, but had been guilty of lewd and unchaste conduct, and had committed a crime under the statutes of the state." There was no prefatory averment of any intent to charge any particular crime. It was held that the aver- ments did not impute crime yrith sufiBcient certainty, and that the words were not, therefore, actionable in themselves. Hoor v. Ward, 14 Vt.. 657. 3. In slander the words alleged to have been spoken should be under- stood and construed in their most innocent sense, unless there are aver- ments giving them other and sinister meaning. And so where the words alleged were, " told W. that he, W., had intercourse with the said plaintiff, Martha," with an innuendo that she had committed adultery with W. , but without any colloquium or other averment, it was held that the allega- tion imputed no crime. Merritt v. Dearth, 48 Vt, 65. DEFAMATION M0ST BE APPARENT. 249 4. Words merely charging that the plaintiff administered morphine to another on the day of the making of his will, and that if it had not been for that the plaintiff's daughters would not have got what they did, are not actionable in themselves, nor with an innuendo that the plaintiff had un- lawfully administered poison, causing death. McFadin v. David, 78 Ind., 445; 41 Am. Rep., 587. 5. Words charging a person with having attempted to commit a larceny are actionable in themselves. Berdeaux v. Davis, 58 Ala., 611. 6. Offering to buy a vote being made a criminal offense by statute, a pub- lication in a newspaper charging such offer or -bribery is libelous; and it is immaterial that the person averred to have been bribed was not a legal voter. Heilman v. Shanklin, 60 Ind., 424. 7. Words spoken or a person charging him with sodomy are not action- able without an allegation of special damages in Ohio, sodomy not being a criminal offense under the laws of that state. Melvin v. Weiant, 36 Ohio St., 1S4; 38 Am. Rep., — . § 3. First, the Defamation Must fee Apparent from the Words Themselves. — Where words are sought to be made actionable, as charging the party with the commission of a crime, a criminal offense must be specifically imputed. It will not be sufficient to prove words which only amount to an ac- cusation of fraudulent, dishonest, vicious or immoral conduct, so long as it is not criminal; or of a mere intention to commit a crime, not evidenced by any overt act. But still it is not necessary that the alleged crime should be stated with all the technicality or precision of an indictment, if the crime be im- puted in the ordinary language usually employed to denote it in common conversation. All that is requisite is that the by- standers should clearly understand that the plaintiff is spe- cially charged with the commission of a crime. The meaning of the words is to be gathered from the vulgar import, and not from any technical legal sense.' § 4. The Imputation Sufficient — Arson— Illustrations — Digest of American Cases.— 1. "You burned your barn to cheat the insurance company." "Case burnt his barn to get the insurance money." Case v. Buckley, 15 Wend. (N. T.), 324. 2. But to say " You burnt your buildings " will not support an action for slander in charging the crime of arson. Estes v. Estes, 75 Me., 478. 3. Words merely charging a person with setting fire to and burning up his hop-house do not naturally and in themselves impute a felonious burn- ing. Frank v. Dunning, 38 Wis., 270. 1 Colman v. Godwin. 8 Dougl., 91; Rowley, 93 Mich., 119; 52 N. W. Rep., 2 B. & C, 28.5, n.; Odgers on L. & S., 1119; Jones v. Greeley, 25 Fla., 629; 121; Loibl v. Breidenbach, 78 Wis., 6 So. Rep., 44a 49; 47 N. W. Rep., 15; Sanford v. 250 OEETAINTY OV IMPUTATION. § 5. Digest of English Cases.— "I never set my preirrises on fire " was held sufficiently clear in Cutler v. Cutler, 10 J. P., 169. See Sweetapple v. Jesse, 5 B. & Ad., 27; 2 N. & M., 36; Barham's Case, 4 Rep., 20; Yelv., 21. § 6. Adulteration of Food.— Words charging a mere adul- teration are not actionable ; addition of foreign substances in refining sugar may be proper.' §7. Attempt to Commit a Felony — Digest of English Cases. — "He sought to murder me, and I can prove it." Preston v. Pindar, Cro. Eliz., 308. " She vFOuld have cut her husband's throat and did attempt it." Scot et ux. V. Hilliar, Lane, 98; 1 Vin. Abr., 440. But the following was held to be insufficient: " He would have robbed me." Stoner v. Audely, Cro. Eliz., 250. For here no overt act is charged, and mere intention is not criminal. Eaton v. Allen, 4 Eep., 16 b; Cro. Eliz., 684. "Thou wouldst have killed me." Dr. Poe's Case, cited in Murrey's Case, 2 Buls., 206; 1 Vin. Abr., 440. " Sir Harbert Crofts keepeth men to rob me." Sir Harbert Crofts v. Brown, 3 Buls., 167. § 8. Bigamy — Digest of American Cases. — 1. The words, "He was married to a woman, J. S., and kept her till be got sick of her, and then sent her away, he having all the time two wives," Were held to Impute the commission of this offense with sufficient certainty. Parker v. Meade, 33 Vt., 300. Digest of English Cases. — Mrs. Heming was sister to Mr. Alleyne. The defendant said: "It has been ascertained beyond all doubt that Mr. Alleyne and Mrs. Heming are not brother and sister, but man and wife." Held, that it was open to the jury to construe this as a charge of bigamy as well as of incest. Heming and wife v. Power, 10 M. & W., 564. § 9. Embezzlement — Digest of American Cases. — ], Where the charge published was that "A young man named F. M., employed as driver and collector by A. H. Gr., has disappeared with some of his employer's funds and the police have been notified," the jury were justified in ascribing to it the meaning that the plaintiff had absconded ■with funds of his employer under circumstances rendering him criminally responsible. Mallory v. Pioneer Press Co., 34 Minn., 531; 26 N. W. Eep., 1904. I 2. A statement made of a person in his absence, that if he had not gone away the speaker should issue warrants for him, is capable of meanihg that he had absconded and was liable to arrest, and if so meant is clearly ac- tionable, although a statement that he had left town is not. A remark made of a person that he went to a certain place named " and collected $1,400 of our money and went west with it" is capable of a very bad and dishonest meaning, and is sufficient to support an action for slander. A charge that a person is trying to get and convert to his own use, without iHavemeyer v. Fuller, 10 Abb. (N. Y.) N, Cas., 9. FALSE PRETENSES. 251 paying for it, the property of another is properly enough connected with an innuendo that it meant defrauding or swindling such person out of his property, and is slanderous. Ayres v. Toulmin, 74 Mich., 44, 41 N. W R-ii 855. 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 foUows: " That in the settlement of the alle" because a man might innocently cause the death of another by accident or misfortune. MiUer 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 3 Buls., 206. § 14. Perjury at Common Law — Digest of American Cases. — 1. In an action for paying " You have perjured yourself," it is enough to prove the words were spoken, and that they referred to the plaintiil. Green V. Long, 3 Caines' Rep. (N. Y.), 91. 2. PlaintiflE had recently given evidence in an action against defendant, who thereupon wiote and published of 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. Tlie 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, 29 Minn., 156; 12 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 legally Im- posed. Id. 5. A direct charge of perjury is actionable per se; but the words "he made false aflBdavits in order to commence his case," or "the affidavit made by Mr. C. was false," are not necessarily actionable in themselves ; PEEJTJET. 255 nor can an action be maintained upon these merely by an innuendo that they were intended to import perjury. Cassellman v. Windship (Dak.), 19 N. W. Rep., 412. 6. So, too, " He is a damned liar; he took a false oath, and I can prove it." Sibley v. Marsh, 24 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 tt be in itself actionable as amounting to an accusation of the crime of per- jury, -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 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' Rep., 849. 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.), 513. 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 iusano is actionable. Hutts v. Hutts, 63 Ind., 214. 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," are actionable in themselves. Brown v. Hanson, 53 Ga., 632. 13. And so are the words " Peter Smith has told lies and sworn to them." Smith V. Wright, 55 Ga., 218. 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. Undee Statutes. 1. Under the Massachusetts practice act a declaration in slander is sufR- cient which alleges that the defendant published falsely and maliciously charged the plaintiff 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 17 26,6 CEETAINTT OF IMPUTATION. 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.), 23. Digest of English Cases. — 1. To say they "did not scruple to turn aflSdavit-men " is sufficient. Roach V. Garvan, Re Bead & Huggonson (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 Men 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 2s. ; you knew well when you bought chem that tliey cost me three times as much making as you gave for them, and that tliey 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, 3 Mood. C. C, 53; Alfred v. Farlow, 8 Q. B., 854; 15 L. J., Q. B., 258; lO Jur., 714; Clarke's Case de Dorchester, 2 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." Chai ter v. Peter, Cjo. Eliz., 003. 2. "He has the pretender's picture in his room, and I saw him drink hia health. And he said he had a right to the crown." Fry v. Carne (173-1), 8 Mod., 383; How v. Prin (1702), Holt, 653; 7 Mod., 107; 3 Ld. Raym., 813; a Salk., 694; 1 Biown, P. C, 64. 8. " 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 gucBre, Fowler v. Ashton, Cro. Eliz., 368; X Rail. Abr., 43. 5. "Thou hast committed treason beyond the seas;" for there is a vio- lent intendment that he committed treason to the state here, and not to a foreign state. Lewis v. Coke, Cro. Jac, 424. 6. " He consented to the late rebels in the north." Stapleton v. Frier, Cro. Eliz., 351. 7. "Thou art a rebel, and all that keep thee company are rebels, and thou art not the queen's friend." Redston v. Eliot, Cro. Eliz., 638; 1 Roll. Abr., 49. § 17. Second, the Person Who is Defamed Must be Cer- tain. — The defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff. If the words used really contain no reflection on any particu- WORDS APPLYING TO A CLASS, ETC. 257 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 suflRcient 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. Caiuth v. Richeson (Mo.), 9 S. W. Eep., 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 i 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. & R, 349. 3. To assert that an acceptance is a forgery is no libel on the drawer un- less it somehow appear that it was he who was charged with foiging it. Stockley v. Clement, 4 Bing., 163; 12 Moore, S76. 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 cerium est, quod certum reddi potest." Soloman v. Lawson, 8 Q. B., 837; 15 L. J., Q. B., 857; 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 IMcCallum v. Lambie, 145 Mass., 211; Miller v. Miller, 8 Johns., 74; 234- Crane v O'Reilly, U N. Y. St. Swan v. Tappan, 5 Cush.,104: Frank Eep.. 277; De Witt v. Wright, 77 Cal., v. Dunning, 36 Wia. 370; Sanderson 576; Rhodes v. Naglee, 60 Cal., 630; v. Caldwell, 45 N. Y., d98. Van Vechten v. Hopkins, 5 Johns., 258 CEETAINTT OF IMPUTATION. 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 plaintiflF may also aver extrar neous facts, if any, showing that he was the person expressly referred to.' § 21. The Kule Stated by Chief Justice Shaw. — It is un- doubtedly 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 manj^ 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 ini'ury 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. Delavan, 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., 412. , 4. An action inay 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 I Byer v; Fireman's Journal Co., 11 Shepherd, Sneed (Ky.), 349; Miller v. Daly (N. Y.), 357; Harvey v. Coffin, Maxwell, 16 Wend., 9. 5 Blaokf., 56G; Dicken v. Shepherd, 2 Ellis v. Kimball, 33 Mass., 133; 23 Md., 399: Petsch v._ St. Paul Des- Gidney v. Blake, 11 Johns. (N. Y.), 54; patch Co., 40 Minn., 29'l; Baldwin v. Foxcroft v. Lacey, Hob., 89; Eyck- Hildreth, 14 Gray, 221; Prashear v. man v. Delevan, 25 Wend., 186. APPLICABLE TO DIFFERENT PERSONS. 259 words "his friend " meant the plaintiff. Clark v. Creitzburg, 4 McCord (S. C), 491. B. 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.), 257. 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 murder H. F." It was adjudged that each of tlie seventeen de- fendants was entitled to have his separate action of slander. Foxcroft v. Lacy, Hob., 89. 2. A colloquium is suflScient to give application to the words, " One of the servants of I. S. is a thief." 4 Coke's Reports, 17, 6. §24. Defamatory Words Applicable to Different Persons. — If the words spoken or written, though plain in tiiemselves, 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 they 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 Campbell: " 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." ' § 25. Effigies, Pictures and Caricatures.— Where a libel consists of an effigy, picture or caricature, care should be taken 1 Harwell v. Adkins, 1 M. & Gr., Broome v. Gosden, 1 C. B., 738; 807; 2 Scott, N. B., 11; Knapp v. Ful- Smart v. Blanchard, 43 N. H., 137; ler, 55Vt., 311; 45 Am. R, 618; Al- Mix v. Woodward, 12 Conn., 262; lenworth v. Coleman, 5 Dana (Ky.), Leonard v. Allen, 11 Cusb., 241. 315; Miller v. Butler, 6 Cush., 71; ^Le Fanu v. Malcolrason, 1 H. L. White v. Sayward, 33 Me., 332. C, 668. «Bourke v. Warren, 2 C. & P., 30T; 26U CEETAINTT 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, 0. J., that " In case upon libel it is sufficient if the matter be reflecting; as to paint a man in any disgraceful situation." ^ § 26. lUttstrations — Digest of American Cases. — (1) Libel. 1. Defendant wrote and published of plaintifif, 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. 12 Hose Company. This hose company was a volunteer fire brigade, unincorporated, and the members brought a joint 1 1 Starkie on Slander, 171. 783. See, also, 2 Hawk. P. C, ch. 7&, 2Moley V. Barager, 77 Wis., 43; §2; 5 Co., 125; Skinner, 123; 3 Keh., Randall v. Evening News, 79 Mich., 378; 11 Mod., 99. 266; 7 L. R. A., 309; 44 N. W. Rep., ILLUSTEATIONS 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 lad., 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 larger to a less sum ; the note will show for itself," is not actionable, as the charge is not positive, but in the 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 Eep. (III.), 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 J 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 au 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., 437; 37 N. W. Eep., 349. § 27. Digest of English Cases.— (1) LiBBL. 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. K.. 418. 2. Plaintiff had been in defendant's employment as a gardener, 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 T. Gardiner, 1 M. & W., 245; 1 Tyr. & Gr., 578; 3 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 262 CEETAINTT OF IMPUTATION. should understand it, so long as the meaning of the paragraph is clear to the plaintiflE's acquaintances. Bourke v. Warren, 3 C. & P., 307. 4. Some libelous verses were written about " L y, the Bum.'' The court was satisfied, in spite of the finding of the jury, that the words re- lated to the plaintiff, a sheriflE's officer. Levi v. Milne, 4 Bing., 195; 12 Moore, 418. 5. " All the libelers of the kingdom know now that printing'initial letters will not serve the turn, for that objection 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 ej'e, 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, Cro. 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 fr:ends 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 ai-tist of somewhat more than ordinary ability. And the rule was therefore dis- charged. R. V. Barnard, 43 J. P., 127. 8. There appeared in " Mist's Weekly Journal" an account professedly of certain intrigues, etc., at the Persian court, really at the English. The late King George L was described under the name of " Merewits,"-George 11. 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. R. v. Clerk, 1 Barnard, 304. (3) 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 innuendo " meaning as a fact that the plaintiff had by undue influence procured the money to be transferred " was held not too wide, for such INDIEEOT DEFAMATION. 263 • would be the meaning conveyed to readers by the defendant's insinuations. Turner v. Meryweather, 7 C. B., 251; 18 L. J., C. P., 155; 13 Jur., 683; 19 L. J., C. P., 10. 3. Where plaintiff'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 subseqviently, 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. 4. " His name was O'B." (meaning thereby the plaintiff). This was held sufficient in O'Brien v. Clement, 16 M. & W., 159; 16 L. J., Ex., 77. 6. 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. Eiiz., 497; 1 EolL 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," simpliciter ; 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. d A. said to B., " One of us two is perjured." B. answered, "It is not I," .md A. replied, "I am sure it is not L" 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 OEKTAINTY OF IMPOTATION. damage and without proving malice. Thus, to write and pub- 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 plaintifiE's wife: " You are a nuisance to live t)©- side of. You are a bawd, and your house is no better than a bawdy- house." Held, 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 piaintiflE 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 Langnage. — 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 imply the plaintiffs 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 by 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, 1 Ingram v. Lawson, 6 Bing. N. C, B., 823; 15 L. J., Q. B., 253; 10 Jur., 212; 4 Jur., 151; y C. & P., 326; 8 796. Scott, 471; Solomon v. Lawson, 8Q. ^Odgers on L. & S., 133; C3oiB,«r. Child, 30 Mass., 205. II/LUSTJEATIONS DIGEST OF CASES. 265 and when the facts are proved which give it this character, the jury are not to shut their e3'es to that which all the rest of mankind can see and know and understand.' § 32. Illustrations— Digest of American Casen.— 1. The following words have been held to convey an imputation with Bufficient 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. Say wood, 31 Mass., 402. 3. The statements "Yon ai-e 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., 43. 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. ZeliS 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., 563. 2. Bo where the defendant, on hearing that his barns were burnt down, said: " I cannot imagine who it should be but the Lord Sturton." Lord Stnrton v. Chaffin (1563), Moore, 143. 3. To state that criminal proceedings are about to be taken against the plaintiff (as that the attorney-general bad directed a certain attorney to prosecute him for perjury) is actionable, although the speaker does not ex- pressly assert that the plaintiif 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., 326; 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; Gilb. Cas., 114. 6. " He has become so inflated with self-importance by the few hundreds Oiade in my service — God only knows whether honestly or otherwise," is an insinuation of embezzlement. Clegg v. Laffer, 3 Moore & Sc, 737; 10 Bing., 250. 7. " 1 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. Rep., 427; Cro. Jac, 407; Peake v. Oldham, Cowp., 275; 3 Wm. Bl., 959. »Com. V. Child, 30 Mass., 205. 266 CEETAINTT OF IMPUTATION. 8. It is actionable to say, " I am of opinion that such a privy councilor is a traitor," or "I think such a judge is corrupt." Per Wyndham and Scroggs, JJ., and North, C. J., in Lord TownshendV. Dr. Hughes, 3 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 Iamb ;" and it was held that Graves could sue. Graves' Case, Cro. Eliz., 289. 10. Or, "I dealt not so unkindly with you when you stole a sack of my corn." Cooper v. Hawkeswell, 3 Mod., 58. 1 1. 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 bring them up 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. R. V. Gathercole, 2 Lew. C. C, 337, 355. 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., 335; Harrison v. King, 4 Price, 46; 7 Taunt., 481; 1 B, «fe Aid., 161. IS. No action lies for such words as " Thou deservest to be hanged;" for here no fact is asserted against the plaintiff. Hake v. Molton, Roll. Abr., 43; Cockaine v. Hopkins, 3 Lev., 314. §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. §35. First, by Adjective Words — Illustrations— Ameri- can Cases. — 1. It is actionable to call a person a thieving puppy. Little v. Barlow, 36 Ga,, 423; Pierson v. Stortz, 1 Morr. (Iowa), 136. 2. To charge one with being a thieving person or to say of him that he stole and ran away is actionable. Alley v. Neely, 5 Blackf. (lud.), 300. 3. Also to say "youG— d d— d lying, thieving son of a bitch." Rey- nolds V. Ross, 43 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, 3 S. & R., 440. § 36. Digest of English Cases.— 1. " Thou ai-t a leprous knave." Taylor v. Perkins, Cro. Jac, 144; 1 Roll. Abr., 44. QUESTIONS AND ANSWERS. 267 2. "He is a bankrupt knave," spoken of a trader. Squire v. Johns, Cro. Jaa, 585; Loyd V. Pearce, Cro. Jac, 424. 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 phrase which will be taken to mean that the plaintiff habitually 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 — Illnstrations — 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. § C8. 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, 418; 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 the 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, 3 Lew. C. C, 237, 355. 3. So an action lies for saying, " Did you hear that J. S. is guilty of trea- son?" Earl of Northampton's Case, 13. 4. A., the wife of B., was asked by C, "Wherefore will your husband hang 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. Hay ward v. Nay lor, 1 Roll. Abr., 50. 6. 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 Ellenborough, C. J., to the jury to say whether the advertisement imputed a charge of bigamy to the plaintiflf. Delany v. Jones, 4 Esp. C, 191. § 39. Third, in a Question and Answer or in a Series of Questions and Answers — Illustrations — Digest of Ameri- can Gases. — 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 268 OEETAINTY OF IMPOTATION. "'merchants they were actionable in themselves. Sewall v. Coltin, 3 Wend. (N. Y.), 391. § 40. ;^ourth, 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, 20 N. J. L., 308. 2. The fact that, when mating a slanderous statement, the defendant gave it as a report, and mentioned his authority, does not exonerate him from liability. Fowler v. Chicester, 26 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. Dan- rough, 81 Ind., 537. 4. 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. Griffiih (vel Griffin), Cro. Eliz., 400; Moore, 408; Read's Case. Cro. Eliz., 64.1 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 bo." Gardiner v. Atwater, Sayer, 265. 4. ''I heard you had run away " (sc. from your creditors). Davis v. Lewis, 7 T. R., 17. § 42. Fifth, Slanderous Imputation Conveyed by 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 different from cases where the charo-e is conveyed by language capable of being stated fully to the jury, and capable of being fully understood by them. Wlien the charge is made by gestures and signs or intonations of the voice and not solely in words, courts have found it necessarv 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 Cush. (65 Mass.), 241. SIGNS, GESTUKES, 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.' iBlakemanv. Blakeman, 31 Minn., 15 Vt., 245; Barton v. Holmes, 16 896; 18 N. W. Rep., 103; Leonard v. Iowa, 253. AUen, 11 Cush., 241 ; Smith y. MUes, CHAPTER XIV. CONSTRUCTION OF LANGUAGE. § 1. Thp Construction of Language as Applied 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 iu 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. Digpst of English CaseS. 20. Words Spoken Ironically. 21. Illustrations — Digest of American Cases 22. 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 ohviously defamatory. (2) Words ambiguous, which, though apparently defamatory, are still on their face susceptible of an innocent meaning. (3) Words meaningless until some explanation is given; slang lOdgersonL. &S., 104. WOEDS OBVIOUSLY DEFAMATOEY. 271 expressions; foreign languao^es; words used in some special, local, technical or customary sense. (4) Words apparently/ innocent but capable of a defamatory meaning ironically spoken. (5) Words oboiously innocent and incapable of a defamatory meaning. § 2. Firsts 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. Jt 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 tiieir 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. Illustrations — 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 plaintiff's protection for immoral purposes. More v. Bennett (1872), 48 N. Y. (3 Sickels), 473; reversing the judgment of the court below, 33 How. 180; 48 Barb. (N. Y.), 229. iLevi v. Milne, 4 Bing., 195; 12 Minn,, 285; Lewis v. Black, 27 Miss., Moore. 418; Posnett v. Marble, 62 Vt., 425; Worth v. Butler, 7 Blackf., 351. 481; 20 Atl. Rep., 813; Wilson v. SGarrett v. Dickerson, 19 Md., 418; Fitch, 41 Cal., 363; Carroll v. White, De Moss v. Haycock, 15 Iowa, 149. 33 Barb., 615; Newell v. Howe, 31 s Watson v. Nicholas, 6 Humph. 18 (Tenn.), 174. 272 CONSTEUCTION OF LANGUAGE. 3. 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. Eep., 487. 4. " The Hurricane Vote. — Again we have to chronicle most atrocioas 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., 395. (3) Slandek. 1. " Blackmailing" is clear, and requires no innuendo to support it. Ed- sall V. Brooks, 3 Robt. (N. Y.), 39; 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.), S51. 3. So to say of a bank director, " He is a swindler." Forrest v. Hanson, 1 Crancb, C. Ct., 63. 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. , 344. 6. Charging a woman with drunkenness was held sufficient to sustain an action for slander. Brown v. Nickerson, 5 Gray (Mass.), 1. 7. The words, "You are a vagrant," are slanderous in Pennsylvania. Miles V. Oldfield, 4 Yeates (Penn.), 438. And so to charge another with making a libel. Andreas v. Kopphefer, 3 Serg. & R. (Penn.), 355. 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, 3 Dev. L., 115. 11. 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, 23 N. H., 323. 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, WOEDS OBYIOCSLT DEFAMATOKT. 273 and from their proper import, cannot be explained by reference to othei facts which were not mentioned by the party at the time he uttered tha words. Watson v. Nicholas, 6 Humph. (Tenn.), 174, § 5. Digest of English Cases. — (1) Libel. 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; 3 M. & Scott, 591; 3 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., 3U6; 13 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 aa " meaning thereby that the plaintiff's paper was an ill-conducted and low class journal" Russell v. Webster, 33 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. Taunton, 5 H. & N., 661 ; 39 L. J., Ex., 318; 8 W. R., 499; 2 L. T., 513. (2) Slaudeh. 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. Button, 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 offense," is sufficient without specifying what particular crime is meant. Webb v. Beavan, 11 Q. B. D., 609; 53 L. J., Q. B., 544; 49 L. T., 201; 47 J. P., 488; Kinnahan v. McCullagh, It. 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 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. & Add., 630; 1 Nev. & Man., 455; Hankinson v. Bilby, 16 M. & W., 443; 3 C. & K., 440; Martin v. Loei, 2 F. & F., 654. 274 CONSTEDCTION OF LANGUAGE. I 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 BEFENSE. 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 dififerent 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 cJiTOumstances, 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 th^t they did not for once bear their ordinary signification, is in- admissible. A witness cannot be called to say, " I should not I Roby V. Murphy, 27 111. App., 394; ^Hankinson v. Bilby, 16 M. & W., OJgers on L. & S., 106; Carter v. 445; 3 C. & K., 440; Carroll v. WW*e, Garter, 63 IlL, 439; Welch y. Eakle, §3 Barb., 615; Brittain v. ^lleo, 3 7 J. J. Marsh. (Ky.), 434. Dev. (N. C.) L., 167. AMBIGUOUS WOEDS. 215' have understood defendant to make any imputation whatever on the plaintiff." 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 Blut," 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 a woman 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. Eoby v. Murphy, 37 111. App., 394; K. V. H., 20 Wis., 253: Logan v. Logan, 77 Ind., 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 io be understood by those who hear them. Garrett 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). . . . Eesolved 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 aceipiendus est et sermones semper aceipiendi 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. & S., 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 bystanders so understood it. The court set aside a verdict for the defeL Jant. Joy, C. B. : "The principle is clear that a person shall not be allowed to murder another's reputation in jest. But 276 CONSTEUCTION OF LANGUAGE. if the words be so spoken tbat it is obvious to every by-stander tbat only a ; jest is meant, no injury is done, and consequently no action would lie." Donoghes v. Hayes, Hayes (Irish Exch.), 265. 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-' ceiv^d 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., 534; 4 N. & M., 884 5. Where words are used which clearly import a criminal charge (as " fou , 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- ersmust 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, 9 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 bis hearers. Martin v. Loei, 2 F. & F., 654; Read v. Am- bridge, 6 C. & P., 30S; Hankinson v. Bilby, 16 M. & W., 443; 2 C. & K., 440. 7. Words complained of : " Thou hast killed my wife." Befendant'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. Devrill v. Hulbert (Jan. 25, 1878), unreported; Odgers on L. & S., 103. 0. 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. Willi'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.' 'Edgar v. McCutchen, 9 Mo., 768; Pelzer v. Benish.Oi Wis., 291; Stichtd Vanderlip v. Roe, 23 Pn. St., 82; v. State, 25 Tex. App., 4a0. FOEEIGN WOEDS, SLANG PHEASES, ETO. 271 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 absolutel}'' 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 eEFect 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 bj'-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 b}' a sworn interpreter. § 11. ProTincialor 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., 163 ; 3 s Jones v. Davers, vel Dawkes. Cro. M. & S., 116. Eliz., 496; 1 Roll. Abr., 74. 2 Fleetwood v. Curl, Cro. Jac.,557; Hob., 268. 278 CONSTK0CTIOJSr of LAIfGUAGE. 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; (3) 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 defamatoiy sense. Held no libel, on demurrer. Stone v. Cooper, 3 Den. (N. Y.). 393. 2. The meaning of slang phrases and metaphors may be suflBciently 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., 83. § 13. Digest of Englisli 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. Ilamer, 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 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 arrangeaient 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- IQdgers on L. & S., 110; Daines v. Hartley, 3 Exch., 200; 18 L J. Ex., 81; 13 Jur., 1093. PROVINCIAL OK OBSOLETE EXPEESSIONS, ETO. 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., 213. 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 cai-ds." Reg. pros. Lambri v. Labou- chere, 14 Cox, C. C, 419. (3) Slander. 1. Words complained of: "You are a bunter." 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, 314. 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 28 J and 34th Vict., ch. 28). Morris v. Langdale, 3 Bos. & Pul., 284. 5. The word " welcher " requires an innuendo to explain its meaning. Blackiuan v. Bryant, 27 L. T., 491. 0. Pollock, C. B., thought the word " truckmaster " required no innuendo- to explain its meaning, as it " is composed of two English wor^ls intelligible 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., 387; 12 L. J., Ex., 304; 2 Dowl. (N. S.), 769; O'Bi-ien v. Clement, 16 M, & W., 166; 16 L. J., Ex., 77; Barnett v. Allen, 1 F. & F., 135; 37 L. J., Ex., 413; 4 Jar. (N. S.), 488; 3 H. & N., 376. 7. The defendant charged the plaintiff, a pawnbroker and silversmith, n-ith "duffing;" 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 ; 3 Dowl. (N. S.), 370. s. 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. Franks, Hob., 136 ; Coles- V. Haviland, Cro. Eliz., 250; Hob., 12. 280 CONSTKDCTION OF LANGUAGE; 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: " Yon 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 (Pollock, 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. Fourth, 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. The Law Stated by Chief Justice Shaw.— "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 la such sense." ' 1 Brittain V.Allen, 3 Dev. (lSr.C.)L., 140; Hansbrough v. Stinnett, 25 168; Smith v. Gafford, 33 Ala., 168. Gratt., 495. 2 Cox V. Cooper, 13 W. R, 75; 9 L, 3 Pond v. Hart well, 34 Mass., 269; T., 339; Eiddell v. Thayer, 137 Mass., Cooper v. Perry, Dudley (Ga.), 247. 487; Peterson v. Sentman, 87 Md., WOEDS OF DOUBLE MEANING. 281 § 16. Province of the Court and tlie Jury.— The words must be faicly 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 detBrmining 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 jur\', if there be any evidence to go to them of such facts.^ Also 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 both 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 spoken of the plaintiff. But if the words are slanderous in themselves it is only necessary to aver that they were spoken of the plaintiff. Brittain v. Allen, 3 Dev. (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., 830; 28 W. E., 851; (H. L.) 7 App. p. 158; Jenner v. A'Beckett, L. R, 7 Cas.. 741; 52 L. J., Q. B., 233; 31 W. Q. B., 11; 41 L. J., Q. B.. 14; 20 W. E., 157; 47 L. T., 662; 47 J. P., 214; R., 181; 25 L. T., 464; Grant V.Yates, Euel v. Tatnell, 29 W. E., 172; 43 2 Times L. E., 368; Patch v. Tribune L. T., 507. Ass'n, 38 Hun, 368. » Lord Blackburn, 7 App. Cas., p. 2 Capital and Co. Bank v. Henty 776. (C. A.), 5 C. P. D., 514; 49 L. J., C. P., £82 CONSTEUCTION OB" LANGUAGE. the defendant had been in the practice by the words laid of imputing the ofeense, o- 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 that effect. Harper v. Debb, 3 Ind., 225. 4. The words " this company for good and sufladent 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 tha 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: " Tlie defendant thereby referring to and speaking of a cor- ner 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 coruer 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 are 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 butinnocent 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. Etep., 451. WOEDS OF DOUBLE MEANING. 283 11. 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 circums*tances 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 tliat he publicly 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 tliat 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 not defamatory on its face ; that no malice waa presumable from the publication, and no ri^ht of action act-rued to the plaintiff. Gunning v. Appleton, 5S 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 jiersons 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 in 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 ca.se to go to the jury, and the defendants were entitled to judgment. Capital, etc., Bank v. Henty "^m CONSTRUCTION OF LANGITAGB (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., 283; 31 W. R., 157; 47 L. T., 663 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 upon 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 in 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, 12 Cox, C. C, 233. 4. 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/as 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 0. L. P. Act, 1852, 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, 151; 1 M. & P., 402; 2 Y. & J., 146; 9 D. & R., 197; (in Ex. Oh.) 4 Bing., 489; 2 C. & P., 252; Capel and others v. Jones, 4C. B., 259; llJur., 396. (3) Slajstoeb. 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; 29 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 ; Gostling v. Brooks, 8 F. & F., 78. WOEDS OF DOUBLE MEANING. 2S5 S. The defendant said of the plaintiff: " Foulser trapped three foxes in Eidler's wood." These words are prima facie not actionable ; but the dec- laration averred that the plaintiff 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. Held, 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. B.iboneau 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 Ft itlay " 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., 128; 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 Is. 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. &JI., 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., 249; 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. Fianklyn V. Butler, Pasch., 11 Car. I., cited in Annison v. Bioflekl, Carter, 214. 9. The words, '"Ware hawk there; mind what you are about," will. 286 CONSTEUCTION OF LANGUAGE. ■with proper averments, amount to a charge of insolvency against the plaintiff, a trader ; and so are actionable. Ornwood v. Barkes (vel Parked)^ 4 Bing., 261 ; la Moore, 493. §20. Words Spolfen Ironically. — The plaintifif may also aver in his declaration that the words were spoken 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.), 217. 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. Eneelaad, 20 Pick., 206; Vanderlip v. Roe, 23 Pa. St. (11 Harris), 83. § 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., 210. 2. It is actionable to say ironically: " You will not play the Jew or the hypocrite."' E. v. Garret (Sir Baptist Hicks' Case), Hob., 213; 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. K. v. Dr. Brown, 11 Mod., 86; Holt, 435. § 23. Fifth, Words Obvionsly 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. K"o parol evidence is admissible to explain the meaning of ordinary English words, in the absence of special circumstances showing that the words do not bear their usual signiacation. " 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, 20 Pick. (Mass.), 2 Brett, J., 1 C. P. D., 573. 306; Vanderlip v. Roe, 23 Pa. St., SLord Coleridge, C. J., 2 C. P. D., 82. 150. WOEDS OBVIOUSLY INNOCENT. 2S7 § 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 subscribei-s, 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 Franklin coal to any party in L. except our agent, J. S." Boynton v. Remington 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 cucular 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. Rubber T. F. 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 brewei-s 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 bis 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 maj' choose to assume. Bell V. Sun Printing Co., 43 N. Y. Superior Ct., 567; 8 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. Ca.s.,157. (2) Slandee. 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. 2. 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, 31 Ark., 726. § 25. Digest of English Cases.— (1) Libel. The plaintiff was a certificated art master, and had been master at the Walsall Science and Art Institute. His engagement there ceased in June, 19 28S CONSTRUCTION OF LANGUAGE. 1874, and lie 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. E., 10 Q. B., 549: 44 L. J., Q. B., 153; 33 L. T., 12; Brent v. Spratt, "Times" for February 3, 1882; Raven V. Stevens & Sons, 8 Times L. E., 67. (2) 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; 29 L. T., 472. 2. " He 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. MiUer v. David, L. E, 9 C. P., 118; 43 L. J., C. P., 84; 23 W. E., 333; 30 L. T., 58. CHAPTER XY. INTERPEETATION OF DEFAMATORY LANGUAGE. g 1. The General Rule. 3. A General Rule of Construction — 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. niustrations — Digest of American Cases. 7. Digest of English Cases. 8. Defamation Connected with Extrinsic Matters — Proof. 9. Defamatory Words Explained with Reference to Particular Transao tions. 10. Illustrations — American Cases: A New York Case, Van Rensselaer V. Dole, 1 Johns. Cas., 279. 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 Otherwise. 20. Illustrations — Digest of American Cases. 21. Digest of English Cases. 23. The Intent Immaterial. 33. Illustrations — Digest of American Cases. 24. The Former Rule in England. 35. The Rule Abolished. 36. Progress of the Law. 27. Defamatory Words to be Taken in the Sense which Fairly Belongs to Them. 28. The Rule of Construction. 39. Defamatory Matter to be Taken as a Whole. 30. Illustrations — American Cases : A New York Case. Dexter v. Tabor, 13 Johns., 239. 31. Digest of American Cases. 33. Digest of English Cases. 33. Witnesses Not to Give Their Understanding of the Meaning of De- famatory Words . 290 INTERPEETATION OF DEFAMATOET LANGUAGE. § 34. Illustrations — American Cases: A Minnesota Case. Gribble v. Pio- neer Press Co., 37 Minn., 377. 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. 85. Unsettled State of the Law. § 1. The tteneral 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 jur}'.' § 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 oflFense can be committed by the utterance of language, orally or in writing, that the language shall be construed and understood in the sense in which the writer 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 manifestly 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 trial will iGabe v. McGinnis, 68 Ind., 538; v. Milne, 4 Bing., 195; Wagaman v. Over V. Schiffling, 103 Ind., 191; Meyers, 17 Md., 183; Pittock v. Donaghue v. Gaffy, 53 Conn., 43, 1 O'JSTiel, 63 Penn., 253; Thompson v. Atl. Rep., 553; Mosier v. Stoll, 119 Grimes, 5 Ind., 385; Mix v. Wood- Ind., 244, 20 N. E. Rep., 753. ward, 12 Conn., 263; Haire v. Wilson, 2 Com. V. Kneeland, 20 Pick. (37 9 B. & C, 643; Boureseau v. Detroit Ma.ss.), 316. Eve. News, 63 Mich., 435, 30 N. W. • 3 Hunt V. Bennett, 19 N. Y., 173; Rep., 376. Haight V. Cornell, 15 Copn., 74; Levi ETJLE OF CONSTRUCTION. 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 the 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 J. whole.* § 5. The Rule Stated Iby McAllister, P. J.— " Where the words of an alleged libelous publication are not reasonably susceptible of any defamatory meaning the court is justified in sustainmg 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 vie w 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. 1 Jenner and another V. A'Beckett, C. J., in E. v. Reeves, Peake, Add. L. B., 7 Q. B., 11; 41 L. J., Q. B., 14; Cas., 84; Fitzgerald, J., in R. v. Sulli- 20 W. R., 181 ; 25 L. T., 464. van, 11 Cox, C. C, 58. - Hart and another v. Wall, 2 0. P. 5 Hays v. Mather, 15 Brad. (111.), 30 ; D., 146; 46 L. J., C. P., 237; 25 W. Odgers on L. & S., 20; Blagg v. E., 373. Sturt, 59 E. C. L., 899; Jenner v. 3 Hunt V. Algar, 6 C. & P., 345. A'Beckett, L. E., 7 Q. B., 11 ; Mulligan 4 Lord Ellenborough, C. J., in R. v. v. Cole et al., L. R., 10 Q. B., 549; Lambert and Perry, 2 Camp., 398; Thompson v. Grimes, 5 Ind., 385. 81 How. St. Tr., 340; Lord Kenyon, 292 INTEEPKJ^TATIOIf OF DEFAMATOET LANGUAGE. 2. Where one said of another, " That damned scoundrel knows all about it from beginning to end," and the plaintiflE avers that the defendant in using this language meant to charge the plaintiflE with having committed arson, it was held error to order a nonsuit. The question in what sense the words were spoken should have been submitted to a jury, Eeeves v. Bowden, 97 N. C, 29. § 7. Digest of English Cases.— 1. The report of a trial for libel contained some strong observations against the plaintiflE, which were indeed a necessary part of the report, as the defendant had justified. At the end it was stated that the jury found a verdict for the plaintiflE for £30. Held, that the publication, taken as a whole, was not injurious to the plaintiflE. Chalmers v. Payne, 2 C, M. & E., 156; 5 Tyrw., 766; 1 Gale, 69. § 8. Defamation Connected with Extrinsic Matters — Proof. — It is a settled rule of law that whenever a specific meaning is given to the terms of a libel or oral slander by con- necting it with previous matter, the whole must be 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 hy 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: Van Rensselaer v. 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 plaintiflE, John Van Rensselaer, and the party and procession in which the said John 1 Heller v. Howard, 11 Brad. (JR.), 73 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, 3 C. Strader V.Snyder, 67 m., 404; Young & K, 440; Quin v. O'Gara. 2 E, D. V. Gilbert, 93 111., 595. S. (N Y.), 338; Norton v. Ladd, 5 N. 2 Van Rensselaer v. Dole, 1 John- H., 209; Wilhams v. Cawley, 18 Ala., •on's Cases (N. Y.), 279; Hays v. Ball, 206; Young v. Gilbert, 93 111., 595. IlLUSTEATIONS AMEEICAlf CASES. 293 Keating acted as captain on the said fourth day of July], are a set of black- hearted highwaymen, robbers and murderers." At the trial the words were proved to have been spoken as alleged. On the part of the defendant it appeai-ed that on the day previous to the speaking of the words there had been a public procession to a church in Lansingsburgh, 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 %vhioh 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 apply to the transac- tions of the preceding day, and as tliese were known not to amount to the charge which the words would otherwise import, the verdict was set aside. 2. An Illinois Case: Arjei-sv. Grider, 15 III., 87 (1853). Grider was a town constable in M., 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 : "Gro and take up those men in the public square!" 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 plaintifiE 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. E., 48; Brite v. Gill, 1 &2 Monroe R., 65; Gill v. Bright, 6 Monroe, 130; Van Rensselaer V. Dole, IJohnson's Cases (N. Y.), 279; Edie v. Brooks, 2 Whart. Dig., 598, g 36; Christie v. Cowell. Peake's N. P. C, 4; Swag v. Gee, 2 Coke's E., 300; Jackson v. Adams, 29 Eng. C. L. E., 371. 3. A New 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 cliarge 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 had 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 part of it, but discov- erinc his error he admitted he had taken it under a mistake, and made no 294 INTEEPEETATION OF DEFAJVIATOKT LANGUAGE. further claim to the wood belonging to the plaintiff. After which admia- Bion, 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 words ; that 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 rnade 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 hearers 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 otlier 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 Cases. — 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- ILLtrSTEATIONS — DIGEST OF ENGLISH CASES. 295 fendant claimed to have been paid on behalf of the plaintiff, from whom h& had demanded its repayment. Held, that the words, though actionabl& 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 otlier 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- cusod his lessee of stealing corn, at the same time explaining to his hearers tl'.at the crop was security for the payment of the rent, and showing that the speaker honestly believed that a clandestine appropriation 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. Y.) 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 gestae, 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 Eep., 19; Cristie v. Cowell, Peake, 4; Day v. Robinson, 1 A. & E., 551; 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. : " Thf 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-stander 296 IITTEEPEETATION OF DEFAMATOET LANGUAGE. that only a jest is meant no injury is done, and consequently no action ■would lie." Donaghes v. Hayes, Hayes (Irish Exch.), 365. 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. E., 335. 4. Where the defendant said to the plaintiflE 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; 3 G. & 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); Odgers 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 iplaintiff." 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 Commou 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 meaning 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., 647; Blakeman v. Blakeman, 81 Minn., ^96; 18N. W. Rep., 103. TECHNICAL TEEMS AND CANT PHRASES. 297 § 14. Illustrations — American 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 person named Kock, and as charged in the complaint were: " Mein sohn hat se nioht 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. R.] 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 children, 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 estra^ 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 " verf uehrt" 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 tbe 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 rec^arded as a most sound and salutary one, to be acted upon 298 INTEEPEETATION OF DEFAMATORr LANGUAGE. by the court, and to be fully 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, 3 Fiip. C. Ct., 121. 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, 3 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. Eodgers v. Kline, 56 Miss., 808. § 18. Digest of English Cases.— 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 libel was published, understood as expressing and meaning, an ai'tf ul and 1 Carter v. Andrews, 33 Mass., 1. TECHNICAL TERMS AND CANT PUEASES. 299 ■wicked plan and contrivance made and entered into by the said William Paget, Esq., and otlier 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 falsel3' 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 txtorting 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 60, the passage was libelous. Verdict, guilty. E. v. Holt, 8 J. P., 312. 2. 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 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. Norbui-y, 1 F. & P., 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, 214. 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-, 39 L. J., Ex., 318; 8 W. E., 499; 3 L. T., 513. 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., 304; 3 Dow]. (N. S.). 769; O'Brien v. Clement, 16 M. & W., 166; 16 L. J., Ex., 77; Barnett v. Allen, 1 F. & F., 135; 37 L. J., Ex., 412; 4 Jur. (N. S.), 488; 3 H. & N., 376; 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. 6 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 bemgnow legalized by 33 and 34 Vict., ch. 38). Morris and Langlade, 3 Bos. & ^ul., 234 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, " meanmg thereby 300 INTEEPEETATION OF DEFAMATOEY 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 persona in playing at cards." Eeg. pros. Lambri V. Labouchere, 14 Cox, C. C, 419. 8. The defendant charged the plaintiff, a pawnbroker and silversmith, 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., 3G1 ; 3 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 with his hand on the book). HeM actionable. Slater v. Franks, Hob., 126. And see Coles v. Haviland, Cro. Eliz., 350; Hob., 13. § 19. Particular Expressions Spoken Ironically or Other- wise — Sliaw, 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 defamatorj' 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. Eep., 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." Boydell v. Jones, 4 M. & W., 446; 1 H. & H., 408; 7 Dowl., 210. 1 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 hare 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.i 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 plaint- iff's 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, 73 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 suflBcient 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 McKinley v. Bob, 20 Johns. (N. Y.), N. E. Rep., 942; Donoghue v. Hayes, 351; Massuere v. Dickens, 70 Wis., 83; Hayes (Irish Exch.), 266. C urtis v. Mussey, 6 Gray, 26 1 ; Wynne iiHankinson v. Bilby, 16 M. & W., v. Parsons, 57 Conn., 73; Com. v. 445; 3 C. & K., 440. Kneeland, 20 Pick., 206. » Fleetwood v. Curley, Hobart, 268; 302 JNTEEPKETATION OF DBFAMATOET LANGUAGE. the record, to give the words an innocent construction. For it was said to be a maxim that words were to be taken in miti- ori seiwu (in the more lenient sense) whenever there were two senses in which they could be taken. And iu 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. I^or example: Where a married woman falselj'' 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 evidencfe 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 Roll. 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., 214; Cox v. Hum- Jac, 600. phrey, id., 889; Holland v. Stoner, 2 Mitchell V. Brown, 3 Inst., 167 ; 1 Cro. Jac, 315 ; Odgers on S. & L., 96. PKOGEKSS OF THE LAW. 303 ray 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 1 know," have been ruled to be a suflicient affirmation.* § 26. Progress of the law.— In 1676, in the days of Charles II., the court of common pleas decided in a case of scandalum fnagnaturn ' 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 wittjf construction of lawyers, 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 coiirt 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- struction upon them different 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." '" I Logan V. Steele, 1 Bibb (Ky.), 'Somers v. House, Holt, 39; Skin., 593; Jonesv. McDowell, 4 Bibb (Ky.), 364; Burgess v. Bracher, 8Mod., 838, 189; Bar v. Gaines, 1 Dana(Ky.), 258. ^Button v.Haywavdetux., 8Mod., 2Cro. Jac, 407. 24. 3 2 Black. Rep., 959. ' Peake v. Oldham, Cowp., 277, 278. < Logan V. Steele, 1 Bibb (Ky.), 'o Harrison v. Thoruborough, 10 593, Mod., 197; Odgers on L. & S., 97; E. 5 Lord Townshend v. Dr. Hughes, v. Home, 2 Cowp., 682-689; of Bul- 2 Mod.. 159. ler, J., R. v. Watson and others, 2 « Naben v. Miecock, Skin., 183. T. R. , 206 ; and the judgments Wool- 20 304 INTEEPBETATION OF DEFAMATOEY 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 w orAs prima facie defamatory ; neither will they put a forced construction on words which may 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 in 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 capa- 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 narrow 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, whether 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 R., 368; Odgers on L. & S., 98; Mo- Smith, 38. Kinley v. Bob, 20 Johns. (N. Y.), 351; I Roberts V. Camden, 9 East, 95. Massuere v. Dickens, 70 Wis., 83; 2R. V. Edgar, 3 Sess. Cas., 39; 5 Curtis v. Mussey, 6 Gray, 361 ; Wynne Bac. Abr., 199. v. Parsons, 57 Conn., 73; Com. v. « Grant v. Yates (C. A.), 3 Times L, Knoeland, 20 Pick., 306. DEFAMATOET MATTEE TO BE TAKEN AS A WHOLE. 303 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- dinar}"- 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 affirmatively show that the pereons 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 be 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- sage. 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 iHotchkis3 V. Olmstead, 37 Ind., » Berry v. Massey, 104 Ind., 486; 3 74; Carmichael v. Sheil, 31 Ind., 66; N. E. Eep., 943. Odgers on L. & S., 109. * Dexter v. Taber, 13 Johns. (N. Y.), 2 WUliams v. Minor, 18 Conn., 464; 339; Shipley v. Todhunter, 8 C. & P., Dempsey v. Paige, 4 E. D. Smith, 680. 318; Van Aiken v. Caler, 48 Barb. 6 Com. v. Snelling, 33 Mass., 837; (N. Y.), 58; Stone v. Clark, 31 Pick. Cooke v. Hughes, R. & M, 113. (Mass.), 51. 306 INTEEPRBTATflON OF DEFAMATOBT LitWaftriCtW. same publicatiom which plainly refer to the same matter, or which qualify or explain the passage sued on.' So, too, with 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 ckar 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, 12 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 Belancey'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 plaintiff had secretly cut and car- ried timber from ofiE 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 oil 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- i 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; 2 C, M. Ouseley, 25 L. J., Ex., S29; 1 H. & & R., 416; 4 Dowl., 268; 1 Gale, 182; N., 1; 2 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. L&- Thompson v. Bernard, 1 Gamp., 48. maitre, 5 M. & Gr., 720; 12 L. J., Q. aStuart v. Lovell, 2 Stark., 93; B., 253; 7 Jur., 748; 6 Scott, N.E., 607. ILLTJSTEA.TIONS — DiaEST OF OASES. 307 port a cnarge of felony. But.it was correctly 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 charge of felony ; but if he only meant to charge him -with cuttmg and carrying them away, it was only charging him with liavmg 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 m our own and in the English courts. 1 Johns. Cas., 279; Wm. Bl 959- Cowp., 278 ; 9 East, 96. The terras " 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. Rep., 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 sura of money. Held libelous. Com. v. Snelling, 83 Mass., 387; Stanley v. Webb, 4 Sandf. (N. Y.), 21. § 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 daraages for the heading. Clement v. Lewis, 3 B. & B., 397; 7 Moore, 200; 3 B. & Aid., 703. And see Mountney v. Watton, 2 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., U ; 2 M. & Scott, 591 ; 2 Tyr., 585; Lewis v. Levy, E., B. & E., 537; 27 L. J., Q. B , 283; 4 Jur. (N. S.), 970; Street v. Licensed Victualers' Society, 22 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. It was not disputed that if the paragraph, which was copied from another paper, stood without the word "Fudge," it would be a libel. If they were of opinion th'at the object of the paragraph was to vindicate the plaintiff's character from an unfounded charge, the action 308 INTEEPEETATION OF DEFAMATOEY LANGUAGE. could not be maintained; but if the word "Fudge" was only added for the purpose 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 Give 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 defamatory 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: Ch-ibblev. Pioneer Press Co., 37 Minn., 277. 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 iu the suits of these delectable worthies against the ' Pioneer Press.' " 'Gribble v. Pioneer Press Co., 37 Mass., 278; White v, Sayward, 33 Minn., 377; 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, SIX; 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; SneU v. Snow, 54 Iowa, 400; 27 N. W. Rep., 289. ILLUSTRATIONS — AMERICAN OASES. 309 Upon the trial the court permitted several witnesses to testify that they a1 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 liaving 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, which 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 follows: "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 thac 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 «,mpetent 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 t^« «°"^t properly decided that it was not competent for the witness to testify to hm understanding of the defendant's meaning in the la°g"^S« '*^«/; Shaw C J • " If the words in their ordinary sense, according to the rules 3JL-0 INTEEPEETA^ION OF DEFAMA^JPRT LAJSTCJCAQB. ,of language, imputed a charge of unchasteness 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 invagination of the person in whose hear- ing they were spoken." 3. A New York Case: Van Vetchin v. Hopkins, 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 h^ (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 oflSce 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 taken 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." i. 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 following false, malicious and defamatory libel: " John Hart, being duly sworn, deposeth and saith that a note presented to him by Hiram Larabee, in favor of J. B. 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 privileged communication.. Larabee was a witness tr,N9ET7:;.?.p state of the law. 311 at the trial. 0:? the stand ho was aske(J 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 the conclusion or ppiuion 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 tliat 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 tlie fact that the names of the plaintiff, the defendant and another persop were signed to the note. When a libelous communication on its face, directly or indirectly, or by way of innuendo or otherwise, refers 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 eiTed." The judgment was reversed. Citing Van Vetchin v. Hopkins, 5 Johns. (N. Y.), SU ; Gibson v. Williams, 4 Wend. (N. Y.), 330; Snell v. Snow, 13 Met. (Mass.), 278; Rangier v. Hummell, 37 Penn. St., 130; White v. Say ward, 33 Me., 333. § 35. Unsettled State of the Law — General Disenssion 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," suys 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 th© 312 INTERPRETATION OF DEFAMATORY LANGUASE. 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 affix to them. A man must be taken to mean what he utters." Lord Ellenborough, in Woolnoth v. Meadows, 6 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 New 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 K H., 146, the authorities are all reviewed and the contrary doctrine is held. Such evidence is also held admissible in Vermont,^ Indiana,^ Illinois, and per- haps some other states. In Illinois, quoting from 2 Greenleaf 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. 3 Nelson v. Borchenius, 53 111., 241. « Smawley v. Stark, 9 Ind., 388. 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 the 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.^ 1 Callahan v. Ingram, 122 Ma, 355L OHAPTEE XVL MALICE. L Malice in Actions foe Defamatios. § 1. Malice as a Term of Law. 2. Malice — A General DisouBsion. 8. 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. 12. 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, O. 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 op Malice. 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. 29. Illustrations — Digest of American Cases. 30. Digest of English Cases. ■31. Repetition of Defamatory Matter Competent to Show MalicCb 32. 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. MAXJCE AS A TBBM OF LAW. gU § 88. Former and Subsequent Defamations — When Evidence of Malice. 89. Illustrations — Digest of American Cases; 40. Digest of English Gases. 41, Extrinsic Evidence of Malice. 43. 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. Illustrations — Digest of English Cases, 47. Intemperate Expressions — Exaggerated and Unwarranted. 48. Illustrations- Digest of American Gases. 49. Digest of English Cases. 50. The Method of Communication Employed. 51. Illustrations — Digest of American Cases. 53. Digest of English Gases. 58. Privileged Communications — Undue Publicity, 64. Illustrations — Digest of American Cases. 55. Digest of English Cases. 56. Plea of Justification — When Evidence of Malice. 57. Unsettled State of the Lav7. 58. The Better Rule. I. Malice in Aotions foe Defamatiow. § 1. Malice as a Term of Law. — The word malice as a term of law has a meaning somewhat different from that which ifr 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 terras "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- 1 Sherwin V. Swindall, 13 M. & W., Co. v. Conroy, 5 Colo. App., 262; 783; L. J. (Ex.), C. B., 237; Osborn v. Owen v. Dewey (Mich., 1896), 65 N. Troup, 60 Conn., 485; 23' Atl. Rep., W. Rep., 8; Pokrok Zapadu Pub. Co. 157; Hallam v. Post Pub. Co., 55 Fed. v. Ziskovsky, 43 Neb., 64; 60 N. W. Rep., 456; Tuiton v. New York Re- Rep., 358; Strode v. Clement, 90 V-a., corder, 144 N; Y., 144; Weber v. But- 553v ler, 81 Hun, 344; Republican Pub^ 316 MALICE. tice Brett, in a comparatively recent case where a question of privilege arose, said : " By malice here I mean, not a pleading expression, but actual malice, or what is termed 'malice in fact;' i. e., a wrong feeling in the defendant's mind."' §2. Malice — General Discussion — Treat, 0. 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 officer, or concerning the qualifi- cations of an applicant for office; 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 cases an action cannot be sustained without proof of actual malice. If the party acted from honest motives and for justifiable pur- poses, the law, 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 they 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.^ >Clarkv. Molyneux,Ii. R., 3Q. B., 2 Gilmer v. Eubanks, 13 111., 27t 237 (C. A.); 47 L. J. (O. L.), 330; Ste- See Root v. King et al., 7 Cow. (H vans V. Sampson, 49 L. J. (C. L.), 120; Y.), 613. Flood on L. & S., 32. DEFINITION — NECESSAEY LNGEEDIENTS. 317 § 3. Express Malice Defined. — Express malice is when one with 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 othet-] harm.V § 4. Malice Refers to Motive, Not to Intention. — Mr. Jus- tice Stephen saj'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 Sbaw. — 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 maj' 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- 14 Black. Cora., 199; Flood on L. Colby v. McGee, 48 111. A pp., 294; 2Flood on L. & S.,38. See, also, Zapada Pub. Co. v. Ziskovsky 43 DelansY v. Kaetel, 81 Wis., 353; Neb., 64; 60 N. W. Rep 358; State wtl^er V W.cke.s, 49 Kan.. 42; v. Brady, 44 Kan., 435; 24 Pac Rep., Brueshaber v. Hertling, 78 Wis.. 498 ; 948. 318 MALICE. sail the offender, but to bring tiie 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 comniission of the offense. In libel and slander suits, where no question of privilege arises, it is quite suflScient 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.s § 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 Avord from which " malice " itself is derived conveys to us. That word is malitia. 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 which 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 iti 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; Colby v. McGee, 48 111. App., 294; Com. V. Bonner, 9 Met. (Mass.), 410. State v. Clyne, 53 Kan., 8; Pokrok 2 Stevens v. Sampson, 49 L. J., C. Zapadu Pub. Co. v. Ziskovsky, 43 L., 120; Flood on L. & S., 35. See Neb., 64; 60 N. W. Rep., 358; State note a V. Brady, 44 Kan., 435; 24 Pac. Rep.; sDelahey v. Kaetel, 81 Wis., 353: 948. Walker v. Wickens, 49 Kan., 43; * Flood'on Ii. & S., 33. CONSEQUENCES OF THE DISTINCTION PKESHMPTION. 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 jur}' that malice prepense or aforethought merely sig- nifies a preconceived wielded 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 ma,y of course be a matter of evidence as to the intent with which he committed the crime, but it would in no way intensify the gravity of the charge against him, so far as the lesral offense itself is concerned.^ § 11. Malice in Gonnection with the Law of Defan.ation. — 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- nicktion 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 Malicious.— 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, > Flood on L. & S., 37, ' Flood on L. & S., 35. 2 Flood on L. & S., 33. 21 820 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 l)y 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 Iby Blackstone. — Blacbstone 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 malitia preeoogitata 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 d faire 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 Davis V. Maxhausen, 103 Mich., 38 Pac. Rep., 903; Cooper v. Piiipps, 315; Youmans v. Paine, 86 Hun, 479; 24 Or., 357. Thomas v. Bowen, 45 Pac. Rep., 758; s 1 Starkie on Slander, 215; 9 Co., Wimbish v. Hamilton, 47 La. Ann., 59; Moore. 627; Hawkins' Pleas of the 246; 16 So. Rep., 856; Childers v. Crown, ch. 73, sec. 14. San Jose, etc., Pub. Co., 105 Cal., 284; 3 4 Black. Com., p. 199; Flodd on L. & S., 34 THE LAW STATED. 321 templated and intended the evil consequences which were likel\' to ensue.' §16. By Charaplin, 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 sufficient 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 il^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 lona fide, is one of law for the court; but whether hona fides exist is one of fact for the jury.^ And the jury may find the existence of actual malice from the languaffe 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, 13 111., 374; 1 (Penn.), 420; Flitcraft 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; Car. & P., 531 ; Wright v. Woodgate. Smith V. Youmans, 3 Hill (S. C). 85; 3 Cromp., M. & E., 573; Jackson v. Hart V. Reed, 1 B. Mon. (Ky.), 166; Hopperton, 16 0. B. (N. S.), 839. Gray v. Pentland, 4 Serg. & R. 322 MALICE. circumstances attending the utterance of the slander or publi- cation of the libel the plaintiff must give further evidence oif 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 wronar thinir 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 he 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 motive."^ § 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 wrongful act, intentionally done without any justification or excuse. In the latter and popular sense it means ill-will to- ' Jackson v. Hopperton, 16 C. B. 346, 247; 47 L. J., Q. B., 230; 36 W. (N. S.), 829. R., 104; 37 L. T., 696, 697. 'Clark V. Molyneux, 8 Q. B. D., EVIDENCE OF MALICE. 32? ■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 defamatory matter was spoken maliciously. This alle- gation cannot he supplied by implication or he presumed from the false publication of words which are in themselves 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 sufBcient. Hanning v. Bassett, 12 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 hona 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 plaintifif. 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 1 Gilmer v. Eubank, 13 111., 274; 131,139; Carmichael v. Waterford & WiUiams V. Gordon, 11 Bush (Ky.), Limerick R'y Co., 13 Ir. L. R.. 313.^ ggg 3 Bromage v. Prosser, 4 B. 597; 29 L. J.. C. P., 813 ; 7 Jur. (N. S.), 47; 8 W. R., 470. 5. In an action for libel and slander 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 Eye. 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 fact 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; 27 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, 34 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, IB Q. B., 308; 20 L. J., Q. B., 813; 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; 25 L. J., C. P., 294; 2 Jur. (N. S.), 1004. 0. The defendant, in a petition to the house of commons, charged the plaintiflE with extortion and oppression in his office of vicar-general to the bishop of Lincoln. Copies of the petition were printed and delivered to I the members of the committee appointed by the house to hear and 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 Sannd.,131; Sid., 414; 1 Mod., 58. See Lawless v. Anglo- Egyptian Cotton and Oil Co., Limited, L. K., 4 Q. B., 263; 10 B. & S., 229^ 38 L. J., Q. B., 129; 17 W. R., 498. PLEA OF JUSriFICATIOn. SJ-'j' 10. A speech made by a member of parliament in the Iiouse 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 civilly and criminally. R. v. Lord Abingdon, 1 Esp., 226; 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 plaintifE " in his evil deeds," which tended " to produce disunion and schism," and " a spirit of opposition to authority." Held, that there was some evidence to go to the jury that the rector cherished anger and malice against the schoolmaster. Gilpin v. Fowler, 9 Ex., 615; 23 L. J., Ex., 152; 18 Jur., 293. § 56. Plea of Justification — Tf hen 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 suflScient 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 suificieut 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 doctriQe.* In some jurisdictions 1 Wilson V. Robinson, 7 Q. B., 68; 80 Ala., 672; Updegrove v. Zimmer- Caulfield v. Whitworth, 16 W. R., man, 13 Penn. St. R. (1 Harris), 619; 936- 18 L. T., 527; Brooke v. Avril- Gorman v. Sutton, 33 id., 247; Doss Ion,' 43 L. J., C. P., 136. v. Jones, 5 How. (Miss.), 158; Robin- 2 Warwick v. Foulkes, 12 M. & W., son v. Drummond, 24 Ala., 74; Beas- 508; Simpson v. Robinson, 12 Q. B., ley v. Meigs, 16 111., 139; Spencer v. 511; 18 L. J., Q. B., 73. See ch. 21, McMasters,id.,405; Smithv. Wyman, §68e«seg. ' 4 Shep., 13. 3Fero V. Ruscoe, 4 N. Y., 162; Wil- « Aird v. Fireman's Jour. Co., 10 son V. Robinson, 14 Law Jour. Rep., Daly (N. Y.), 254; Murphy J- Stout, 196 Q B • 9 Jurist. 726; Lee v. Rob- 1 Smith, 256; Shortley v. Miller, id., ertson I'stew., 138; Richardson v. 395; Shank v. Case, 1 Carter (Ind.), Roberts 23 Ga., 215; Pool v. Devers, 170; MiUison v. Sutton, id., 508; Starr 34:8 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 any more 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 BO 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 V. Harrington, id., 515. And see i McAllister v. Sibley, 3 Me., 474; Swails V. Butcher, 2 Carter, 84; Chalmers v. Shackell, 6 Car. & P., Sloan V. Petrie, 15 111., 485; Thomas 475; Morehead v. Jones, 2 B. Monroe V. Dunaway, 30 IlL, 373; Eayner v. (Ky.), 210; Shoulty v. MiUer, 1 Car- Kinney, 14 Ohio (N. 8.), 283; PaUet ter, 544 V. Sargent, 36 N. H., 496. 2 Sloan v. Petrie, 15 la, 435, CHAPTER XVIL REPETITION OF DEFAMATORY MATTER. § 1. Repetition by the Originator — Competent to Show Malice. 2. 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 arid 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. Illnstrations — Digest of American Cases. — 1. Haeley, the plainti£f, 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 purpose 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 •Hinkle V. Davenport, 38 la., 355; 135 N. Y., 609; 33 N. B. Rep., 133; Com. V. Damon, 136 Mass., 448; Ran- Ranson v. McCurley, 140 111., 626; dall v. Evening News, 97 Mich., 136; Fredrichson v. Johnson, 60 Minn., 56 N. W. Rep., 361; Ellis v. White- 337; Bailey v. Bailey, 63 N. W. Rep., head, 95 Mich., 105; Enos v. Enos, 341. 350 EEPETITION. plead a repetition of the words, 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 lepublioation or a continuous publication of the alleged libel, or of otlier words written or ■spoken by defendant before or after the commenceinent of the action, going to show malice. Behee v. Missouri Pao. 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 thereby aggravat- ing the damages.' 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, • Jean v. Hennesey, 69 Iowa, 273; ' Watkin v. Hall, L. R.. 3 Q. B., 396: 28N.W.Rep.,645;Campbellv. Butts, 37 L. J., Q. B., 125; 16 W. R., 857: 3 N. Y., 173; Howard v. Sexton, 4 18 L. T., 561; Harris v. Minvielle, 48 N. Y., 157; Bassell v. Elmore, 48 La. Ann., 908; 19 So. Rep., 925; Fitz- N. Y., 551; Gribblev. Pioneer Press patrick v. Daily State Pub. Co., 48 Co., 35 N. W. Rep., 710. La. Ann., 1116; 20 So. Rep., 177. 2 Vickers V. Stoneman (Mich., 1889), * M'Pherson v. Daniels, 10 B. & C, 41 N. W. Rep., 495; Jean v. Hen- 270; 5 M. & R., 251; Wheeler v. nesey, 69 Iowa, 273; 28 N. W. Rep., Shields, 3 Scam. (III.), 84& 641 ILL0STEATIOA'S 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 wliom she addressed to believe or suspect the charge which the story 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. Bwerly, 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 affirm their truth. So far as concerned the libel- ous words quoted from the complaint, the specific allegations were these: "Th^t 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 "Funk V. Beverly, 113 Ind., 190; 13 N. E. Rep., 578; Kinney v. Mc- Laughlin, 71 Mass., 3. * 23 352 EEPETITION. while there he bad 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. 4. 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. 5. In 1813 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., 132, and in Davis v. Lewis, 7 T. R., 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 ammo with which the words with the name of the author are repeated. ILLUSTRATIONS — DIGEST OF ENGLISH CASES. 353 Words 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 sufficient 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 community. 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 Missionary 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, 8 B. & C, 24; 4D. &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: 37 L. J., Q. B., 125; 16 W. E., 857; 18 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, paniels went about telling every one, " Woor says that MTher- Bon's horses have been seized from the coach on the road, that he 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 was no justification to prove that Woor did in fact say so; defendant muSt 35i EEPETITION. go further and prove that what Woor said was true. M'Pherson v. Daniels, lOB. &C., 263; 5M. &R.,S51. 4. The defendant said to the plaintiffl 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 plaintiflE 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. Atwater, Say., 265; Lewea v. Walter, 3 Bulstr., 235; Cro. Jac, 406, 413; RoUe's Eep., 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 %ere run away ; " scilicet, from your creditors. Held, 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., 315; 46 L. J., C. P., 308; 25 W. R., 363; 36 L. T., 416; Davison v. Duncan, 7 E. & B., 239; 26 L. J., Q. B., 104; 3 Jur. (N. S.), 613; 5 W. R., 253; 28 L. T. (O. S.), 265; Popham v. Pickburn, 7 H. & N., 891; 81 L. J., Ex., 133; 8 Jur. (N. 8.), 179; 10 W. R , 324; 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 difBculty was presented by a resolu- tion in Lord JSTorthampton'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. K 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. Gr. 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 theni; for otherwise this might tend to a great slander of an innocent; for if one who hath Imsam 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 LOED NOETHAMPTON's CASH. 35o 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 defendan^t to show that he 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 spolie the words on a justifiable occasion.^ Every publication of slanderous matter is 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; 13 Rep., Larkins v. Tarter, .3 Sneed, 681; 134. Stevens v. Hartwell, 11 Met., 542, 549 ; 2M'Pherson V. Daniels, 10 Barn. & Clark v. Munsell, 6 Met., 373, 389; Cress.. 263; 5 Mann. & Ey., 251; Inman v. Foster.S Wend., 602; Mapes Ward V. Weeks, 7 Bing., 215; 4 v. Weeks, 4 Wend., 659; Skinner v. Moore & Payne, 796; 1 Saund., 244b, Grant, 12 Ver., 456; Jones v. Clap- 244c (6th ed.). ham, 5 Blackf., 88; Clarbson v. SM'Gregor v. Thwaites, 3 Barn. & McCarty, 5 Blackf., 574; Moberly v. Cress., 24; 4 Dowl. & Ry., 605. Preston, 8 Mo., 462; Haynes v. Le- Colburn v. Patmore, 1 C, M. & R, 73; 4 Tyr., 677. 35 CHAPTEE XIX. PRIVILEGED COMMUNICATIONS, 5 1. Privileged Communications Defined. 2. Proper Meaning of tlie Term. S. The Doctrine Discussed. 4 Illustrations. 5. Every Defamatory Publication Implies Malice — Privileged Com- munications. 6. Burden of Proving Malice. 7. Requisites of the Occasion. 8. A Legal Defense ^o the Action. 9. The Question of Privilege for the Court. 10. Duty of the Court virhen tlie Communication is Privileged. .11. Circumstances Determine tlie Question of Privilege. 12. The Law Stated by Chief Justice Bronson. 13. Illustrations — Digest of American Cases. (1) The General Doctrine. (2) Afjencies, Mercantile, etc. (3) Associations, Churches, etc. (i) 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. Peivileged 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. 21. The Legislative Body Must be in Session. 22. The Law of England. 23. Illustrations — American Cases: A Massachusetts Case, Coffin v. Coffin, 4 Mass., 1. 24. Digest of American Cases. 25. Digest of English Cases, PEIVILEGED COMMUNICATIONS. 385 I 26, Second Class — Communications in the Course of Judicial Proceed- ings—Conduct and Management — Tlie Administration of Pub- lic Justice. 27. The Rule Stated by Justice Lord. 28. "Words Uttered in the Course of a Trial. 29. Extent of the Privilege. 80. The Privilege Limited. 31. No Action Lies for Defamatory Statements Made in the Course of Judicial Proceedings. 83. Judges of Courts. - 83. Illustrations — Digest of American Cases. 84. Digest of English Cases. 35. Attorneys and Counselors at Law. 86. 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, 87. Illustrations — Digest of American Cases. 88. 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- eiflE (1888), 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. — The English Rule. 51. The American Rule. 52. Illustrations — American Cases : An Indiana Case (the Privilege Al- lowed), Hartcock v. Reddick, 6 Blackf., 355. A Nebraska Case, Pierce v. Oard, 33 Neb., 828. An Iowa Case, Rainbow v. Benson, 71 Iowa, 301. 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 Oases. 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. Rep., 731. 386 PEIVILEGED COMMTTNICATIONS. § 57. Third Class — Communications Relative to Naval and Military Af- fairs. ' 68. Extent of the Rule in America. 69. Heads of Departments Keepers of the Archives. 60. Illustrations — Digest of American Cases. 61. Digest of English Cases. 62. 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 Privilege. 68. Province of the Court and the Jury. COMMTJNICATIONS VOLUNTEERED IN THE DlSCJHARGE 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. 82. 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. 92. 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 Crimes — A Duty Owed to the Public. PEIYILEGED COMMTJNICATIOIfS. 387 § 97. The Rule Stated by Inglis, L. P. 08. Commnuications iu the Prosecution of Inquiries Regarding Crimes. 99. Illustrations — Digest of American Cases. 100. Digest of English Cases. 101. Communications Containing Charges against Public Ofiacers. 103. Caution to be Observed in Making Statements. 103. Illustrations — American Cases: A Wisconsin Case, Ellsworth v. Hayes, 71 Wis., 437. 104. Digest of American 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. - lia The Privilege, when Not Defeated — Intemperate Statements. 111. Illustrations — American Cases: A Michigan Case, Smith v. Smith (1^9), 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 Plaintiff's 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, 29 Mass., 163. 118. Digest of American Cases. 119. Digest of English Cases. 120. Communications Provoked by a Party's Misconduct — The Right to Defend One's Character. 121. limitation of the Rule. 122. Illustrations — American Cases: A Minnesota Case, Quimby v. Tribune Co., 38 Minn., 52S. A Massachusetts Case, SheffiU v. Van Dusen, 81 Mass., 4S5. A New York Case, Beardsley v. May- nard, 7 Wend., 560. 133. Digest of English Cases. Second Class— Qualified Privilege, 134. Parties Having a Common Interest. 125. Illustrations — American Cases : A Michigan Case, Bacon v. Mich- igan R. R. Ca, 33 N. W. Rep., 181. AVermont Case, Shurtleff V. Stevens, 51 Vt., 503. A Kansas Case, Kirkpatrick v. Eagle Lodge, 2C Kan., 384. 126. Digest of American Cases. 127. Digest of English Cases. ■ 128. Where there is a Community of Interest. 129. Illustrations — Digest of American Cases. 130. Digest of English Cases. 131. Unnecessary Publicity to be Avoided. 388 PEIVILEGED. COMMUNICATIONS. § 133. Exaggerated Expressions Not Privileged. 133. Illustrations — Digest of American Cases. 134. Communications Relating to Candidates for Office. 135. Freedom of the Discussion. 136. Qualification and Fitness May be Discussed, Not Private Charaeter. 137. The Rule in Pennsylvania. 138. Defamation Concerning Candidates — A General Rale. 139. Illustrations — American Cases: A Michigan Case, Wheaton v. Beecher, 33 N. W. Rep., 503. 140. Digest of American Cases. 141. Digest of English Caees. 143. Petition for the Removal of Officers — How Far Privileged. Third Class — Qualified Privilege,. 143. Publication of the Proceedings of Legislative Bodies — Courts «f Justice — Public Meetings, etc. 144. First, Legislative Bodies. 145. Ill ustrations — 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. 168. Reports to be Confined to the Proceedings. 164. Illusti'ations — 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 DEFmiriON DOCTEINB. 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 Meaoing of a Privileged Communication is only this; That the occasion on which the communication was made rebuts the inference of malice prima facie arising from a statement prejudicial to the character of the plaintiff, ftnd puts upon him the burden of proving that there was malice. In short, that the defendant was actuated by motives of per- sonal spite or ill-will, independent 6f the occasion on which the communication was made."^ § 3. The Doctrine cf Privileged Coramnnications.— 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 oases. It extends to all communications made bona 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 or 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. Y., 373; Hen wood v. Harrison, 28 L. J., Q. B., S8; Whitely v. 41 Law J., C. P., 206; Edwards v. Adams, 15 C. B. (N. S.), 393; 33 L. Cliandler, 14 Mich., 471; Wasliburn J.. O. P., 89. V, Cooke, 3 Denio (N. Y.), 110; SWright V. Woodgate, 2 Cr.,M. & Knowles v. Peck, 43 Conn., 386; B., 573; 1 T. & G., 13; Taylor v. Easley v. Moss, 9 Ala., 366; 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. & 3 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 PEIVILEGED COMMUNIOATIONS. § 4. Illustrations. — A person is called as a witness and sworn to speak the truth, the whole truth, and nothing but the truth. He may do bo 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 ma!y 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 plaintiff, 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 woi-ds are still ab- solutely privileged, for they were spolcen in the box. Seaman v. Nether- clift, 1 C. P. D., 540; 45 L. J., C. P., 798; 24 W. R., 8S4; 34 L. T., 878; 3 0. P. D., 53; 46 L. J., C. P., 128; 25 W. E., 159; 35 L. T., 784.. But if I maliciously give a good servant a bad character in order to pre- vent her "bettering 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.)i 829; 13 W. E., 913; 10 L. T., 529. § 5. Every Defamatory Publication Implies Malice — Privileged Communications an Exception. — Every defama- tory publication, whetiier expressed by words spoken or by writing, printing, pictures, eflSgies, or otherwise charging or imputing to any person that which renders him liable to pun- ishment, or 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 publica- tion is made, and proof of malice is not in such cases to be required of the party complaining beyond the proof of the publication itself. The justification, excuse or extenuation, if 1 Term E., 110; Lawton v. Bishop, 25 Law J., Q. B., 25; Whitely v. etc., L. E., 4 P. C, 495; Thompson Adams, 15 C. B. (N. S.), 393; 33 Law V. Dashwood, 11 Q. B. Div., 45; J., C. P., 89; Shipley v. Todhunter, Davies v. Snead, L. E., 5 Q. B., 611; 7 Car. & P., 680; Harris v. Thomp- Waller v. Look, 45 Law T. (N. S.), son, 13 0. B., 333; Wilson v. Eobin- 243; SommervjUe v. Hawkins, 10 C. son, 7 Q. B., 68; 14 Law J., Q. B., B., 583; 20 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; 25 Law J., C. P., 741; Delaney v. Jones, 4 Esp., 193; 294. Harrison v. Bush, 5 El. & Bl., 344; BURDEN OF PROOF MALICE — PRIVILEGE. 391 either can be shown, must proceed from the defendant. Bat privileged communications are an exception, and the rule of evidence as to such communications is so far changed as to re- quire of a party to bring home to the alleged defamer the existence of malice as the true motive of his conduct.' § 6. Surden 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.^ § 7. 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 CHUse. When so made in good faith the law does not im[)ly malice from the communication itself, as in ordinary cases. Actual malice must be proved before there can be a recovery.' § 8. A Legal Defense to an AcMon 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 sDate what he hon- estly believed to be the plaintiff's character — to speak his 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. Tlie Question ot Privilege is for the Court, Malice for the Jury. — The theory of privilege in connection with 1 White V. Nichols, 3 How. (U. S.), i: F., 550; 6 C B (X &) 514- fi Jur. C>\ S.). IS. 43. All insurance company may inform a shii>-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., .347; 4$ L. J., P. C., 45. 43. Defendant claimed rent of plaintiff; plaintiff'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 pubUcation, in these terms, was not pririleged, 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, 10 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 thejetters ordering them, wrote to the tradesman that in his opinion the letters were in the plaintiff's handwriting. 3dd, 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., 273; 5L.T., 683. 45. A prominent member of the church of St. Barnabas, Pimlico, went to stay in the vacation at Stockcross, in Berkshire, and so conducted him- self there as to gravely offend the parishioners. Letters pacing 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. Adams, 15 C. B. (X. S.), 393; 33 L. J., C. P., S9; 10 Jur. (N. S.), 470; 13 W, R, 153; 9L. T., 4S3. 46. The defendant had a dispute with the Xewry Mineral Water Com- pany, which they ag^reed to refer to '' some respectable printer, whosliould be indifferent 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 Ubel 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 he wiis 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 sliop the shopman pointed her out to the defendant as the person who had stolen the ribbon. The defendant brought 418 PEIVILE6BD COMMUNIOATIONe. 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 ■whom 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 Grermaa. 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 his house, but found no stolen property. The jury found that defendant bona fide believed that a robbeiy 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 Peivileged Occasions. §15. The Subject Classified. — The occasion apon 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 ofiicers on military matters to their superiors; words spoken by a judge on the bench and by witnesses on the stand. PEIVILEGED OCCASIONS — KULES. 419 In all such cases the privilege aflforded 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.' g 1 •^. The Rule Founded on Public Policy — Pigott, 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 polic}'^, 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 GeaeralRule. — 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- igtevens v. Sampson, 5 Eic. D., 53; Cal.. 624; Rector v. Smith, 11 Iowa, L. J., Q. B., 130; 28 W. E., 87; 41 L. 303; Shelfer v. Gooding, 3 Jones, 175; f 782. Hoar V. Wood, 44 Mass. (3 Met), 193; 2 Kennedy v. Hilliard, 10 Ir. C. L., White v. Nicholls, 44 U. S. (3 How.), Kep., 309; Munster v. Lamb (C. A.), 260; Randall v. Brigham, 74 U. S. :i Q. B, D., 604, 605. (7 Wall.), 523; Rex v. Skinner, Lofft, 'Ring v.'wheeler, 7 Cow. (N. Y.), 55; Scott v. Stansfield, L. R., 3 Exch., 725; Marsh v. Ellsworth, 36 How. Pr., 220 ; Seaman v. Netherclift, 34 L. T. 333; 50 N. Y., 309; Hastings v. Luck, (N. S.), 878. 22 Wend., 410; Garr v. Selden, 4 « Gilbert v. People, 1 Den., 41; N. Y.. 91 ; White v. Carroll, 42 N. Y., White v. Carroll, 43 N. Y., 161 ; Wy- 161; 1 Am. Rep., 503: Spooney v. att v. Buell, 47 Cal., 630 •. Kean v. Keeler, 51 N. Y., 527; Aylesworth v. McLaughlin, 2 Serg. & H., 469; Smith St. Johns, 25 Hun, 156; Lamson v. v. Howard, 28 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; Powel v. Plunket, ers, 43 Vt., 1; Wyatt v. Buell, 47 Cro. Car., 53. 420 PEIVILKGBD COMMUNICATIONS. lative bodies; (2) Judicial proceedings; and (3) Military and naval oflScers. § 20. First Class — Communications in the Course of Leg- islative Proceedings — Thie Doctrine Discussed.— It is in our country a groat 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, maliing 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, Comm. on Constitution, May's Law arid Practice of Parlia- § 866; Cusliing's Law and Practice ment, ch. IV, p. 96; Coffin v. Coffin, of Legislative Assemblies, § 603; 4 Mass., 1 ; Cooley, Const. Lira., 551. THK LAW IN ENGLAND. 42] 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 anything 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 pubhcation of such a petition to others, not members of the house, is of course not privileged.* § 23. IllnstratioDS — American Cases. — 1. A Massachasetts Case: Coffin v. Coffin, 4 Mass., 1. William Coffin, 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; C!offin v. Coffin, 4 Mass., 1. 1-243; 3 P. & D., 1; 3 Jur., 905; 8 2 Bill of Rights, 1 Will. & Mary, Dowl., 148, 533. Stat. 3, ch. 3. 5 By Stat. 3 and 4 Vict., ch. 9; « Ex parte Wason, L. R., 4 Q. B., Stockdale v. Hansard (1840), 11 A. 573; 38 L. J., Q. B., 803; 40 L. J. & E., 353, 297. (M. C), 168; 17 W. R., 881. «Lake v. King, 1 Saund., 131; 1 *R. V. Williams, 3 Shower, 471; Lev., 240; 1 Mod., 5a; Sid,, 414. Comb., 18 (see comments on this 7 See Kane v, Mulvany, Ir. B., 3 case in R. v. Wright, 8 T. R., 293); C. L., 403. Stockdale v. Hansard (1839), 2 Moo. "Odgers on L. & S., 186. 422 PEIVILEGED COMMUNICATIONS. izing the appointment of an adilitional notary public for Nantucket. Eus- eell 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 Eussell 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 ci-ossed 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. Eussell observed, carelessly, it was per- haps one of his relations, and named Coffin, as very many of the Nan- tucket people were of that name. On perceiving the plaintiflE sitting without the bar, behind the speaker's chair, Eussell 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?" Eussell replied: "Yes; but he was honorably acquitted." The defendant 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 was made that afternoon or the next day ; and that the plaintiff was not a candidate for the office. There was no evidence that the resolution in question or the subject-matter of it was afterwards called up in the house. To the action the defendant filed a special plea justifying the speaking of the words, because at the time they were spoken he and Russell, to whom they were spoken, were members of the house of representatives then in session, and that he spoke the words to Russell in deliberation in the house concerning the appointment of a notary public, and that the words had relation to the subject of their deliberation. The jury retui-ned a verdict for the plaintiff. The defendant made a motion for a new trial on the grounds : (1) On the question of law reserved by the judge. (2) Excessive damages. On the hearing of the motion it was held that the words were not within the privilege, for the reason that they were not spoken on a subject before the house, either in an address to the chair or by way of deliberation or advice with another member. In delivering the opinion. Parsons, C. J., says: " I do not consider any citizen, who is a rep- resentative, answerable in a prosecution for defamation, where the words charged were uttered in the execution of his official duty, although they were spoken maliciously; or where they were not uttered in the execution of his official duty, if they were not spoken maliciously with an intent to defame the character of any person. And I do consider a representative holden to answer for defamatory words, spoken maliciously, and not in discharging the functions of his office. But to consider every malicious slander uttered by a citizen who is a representative as within his privi- lege because it was uttered in the walls of the representatives' chamber to another member, but not uttered in executinghis official duties, would be to extend the privilege farther than was intended by the people, or than is consistent with sound policy, and would render the representatives' cham- ber a sanctuary for calumny." m THE COURSE OF JUDICIAL PEOOEKDINGS, ETC. 42^ § 24. Digest of American Cases. — 1, A meaiber of the legislature is not liable to an action of slander for words spoken in the discharge of his official duties, even though spoken maliciously. But this privilege is not extended to words spoken unoffi- cially, though in the legislative hall while tlie legislature is in session. Thus, where one member informally communicated to another, within the representatives' hall and while the house was in session, that the statement which he had just made to the house upon some question lately under con- sideration and likely again to be acted upon was founded upon misrepre- sentation, and that his informant was a person not to be believed, using some slanderous expression in regard to the informant, held, that the slander was not privileged by the place or occasion. Coffin v. Coffin, i Mass., 1. See Com. v. Blanding, 3 Pick. (Mass.), 310. § 25. Digest of English Cases. — 1. If a member of either house of parliament publishes to the world the speech he delivered in his place in the house he will be liable to an action as any private individual would be. R. v. Lord Abingdon, 1 Esp., 326; R. V. Creevey, 1 M. & S., 273. Though if a member of the house of commons merely printed hia speecli for private circulation among his constituents it will be conditionally privileged; i. e., if there be no malicious intent to in- jure the plaintiff. Davison v. Duncan, 7 E. & B., 233: 26 L. J., Q. B., 107; Wason V. Walter, L. R., 4 Q. B., 95; 8 B. & S., 730; 38 L. J., Q. B., 42; 17 W. R, 169; 19 L. T., 416. 2. Evidence given before a select committee of the house of commons is privileged. Goffln v. Donnelly, 6 Q. B. D., 307 ; 50 L. J., Q. B., 303 ; 29 W. R. , 440 ; 44 L. T. , 141 ; 45 J. P. , 439. But a letter written to the privy coun- cil touching the conduct of one of their officers is not absolutely privileged ; it is open to the plaintiff to prove express malice if he can. Proctor v. Web- ster, 16 Q. B. D., 112; 55 L. J., Q. B., 150; 53 L. T., 765. 3. Reports in the newspapers of parliamentary proceedings are condition- ally, not absolutely, privileged. Odgers on L. & S. , 263-5. § 26. Second Class — Communications in the Course of Judicial Proceedings — Conduct and Management — The Ad- ministration of Public .Justice. — Great latitude of remark and observation is properly allowed to all persons, both par- ties and counsel, in the conduct and management of all pro- ceedings in the course of the administration of justice. It is for the interest of the public that great freedom be allowed in complaints and accusations, however severe, if honestly made,, with a view to have them inquired into, to have offenses pun- ished, grievances redressed, and the laws carried into execution. And this extends not merely to regular courts of justice, but to all inquiries before magistrates, referees, municipal, military and ecclesiastical bodies ; and they are only restrained by this rule,, viz., that they shall be made in good faith, to courts or tri- 424 PKIVILEGED COMMUNICATIONS. bunals having jurisdiction of the subject, and power to near and decide the matter of complaint or accusation, and that they are not resorted to as a cloali for private malice.' § 27. The Rule Stated by Lord, J.— It seems to be settled by the. English authorities that judges, parties, counsel and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial pro- ceedings; and the same doctrine is generally held in the Ameri- can courts, with the qualification as to parties, counsel and witnesses that their statements made in the course of an action must be pertinent and material to the case. The qualification of the English rule is adopted in order that the protection given to individuals in the interest of an efficient administration of justice may not be abused as a cloak from beneath which to gratify private malice.- § 28. Words Uttered in the Course of a Trial. — Nor does it make any difference if the words are uttered in the course of a trial, whether in form they are addressed to the witness or to the court or jury. The remarks addressed to a witness in the form of putting a question, reminding him of his duty or recurring to what he had before stated, indicating a contra- diction in different parts of his testimony, or calling upon him to show how he can reconcile them, though in form directed to the witness, are made in the hearing of the court or magis- iHart V. Baxter, 47 Mich., 198, 10 & Bing., 130; 4 Moore, 563; Doyle v. N. W. Rep., 198; McLaughlin v. Cow- O'Doherty, Carr. & M., 418; Kendil- ley, 127 Mass., 316; Hoar v. Wood, Ion v. Maltby, Carr. & M., 402; Ring 44 Mass. (3 Met.), 193; Moltou v. Clap- v. Wheeler, 7 Cow. (N. Y.), 735; Bur- ham, March, 20; S. C, Sir W. Jones, lingame v. Burlingame, 8 Cow. 431, sub nom. Boulton v. Clapham; (N. Y.), 141; Hastings v. Lusk, 33 Dawling v. Wenman, 2 Show., 446; Wend. (N. Y.), 410; Mower v. Wat- Brook V. Montague, Cro. Jac, 90; 1 son, 11 Vt, 536; Torrey v. Field, 10 Saund., 130, 131c (6th ed.); Astley v. Vt., 353; M'Millan v. Birch, 1 Binn. Younge, 3 Burr., 807; Trotman v. (Pa.), 178; Gilbert v. The People, 1 Dunn, 4 Camp., 411; Hodgson v. Den., 41; Coffin v. Coffin, 4 Mass., 1; Scarlett, 1 B. & Aid., 233; S. C. at Com. v. Blanding, 3 Pick. (Mass.), Nisi Prius, Holt, 631, and notes; Flint 314; Spalds v. Barrett, 57 111., 289; V. Pike, 4 B. & Cress., 473; 6 Dow. & Rice v. Coolidge, 121 Mass., 393. Ey., 528; Jekyll v. Moore, 3 New 2 McLaughlin v. Cowley, 127 Mass., Reports, 341; Wilson v. Collins, 5 C. 316; Rice v. Coolidge, 121 Mass., 393. & P., 373; Home v. Bentinok, 2 Brod. EXTENT OF PRIVILEGE, ETO. 425 trate, and may constitute a part of that comment upon the evidence, which has a bearing on the result.' § 29. Extent of tie 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 gratifj'^ 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 says 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., 127 Mass., 316. 316; Hart v. Baxter, 47 Mich,, 198; » 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, Eep., 198; Hoar v. Wood, 44 < Flood on L. & S., 156. 426 FEIVILEGED 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 eitiier 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 inquir^^, and the proceedings are vpithin 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. — %. 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 III., 289. 2. No proceeding according to the regular course of justice will make a complaint or other proceeding amount to a libel for which an action can be maintained; and a distress warrant is a proceeding 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., S97. 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. G irr v. Selden, 4 N. Y. (4 Comst.), 91; Bailey v. Dean, 5 Barb. (N. Y.), 397; Marsh v. Ellsworth, 3& How. (N. Y.) Pr., 533; Vausse v. Lee, 1' HiU (S. O.), 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, 13 Rep., 34; ^Paris v. Levy, 9 G. B. (N. S.), 343; Flood on L. &S., 158; Scott v. Stans- 30 L. J., C. P., 33; 7 Jur. (N. S,), 389; field, L. R., 8 Ex., 230; 37 L. J. Ex., 9 W. E., 71; 3 L. T., 334. 155; McLaughlin v. Coolidge, 127 * Kirby v. Siaipson, 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, 3 Moo. P. C. G, 38. ATTOENEYS AND COUNSELOES 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 plaintiflE 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 they 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. Snott v. Stansfield, L. R., 3 Ex., 230; 37 L. J., Ex., 155; 16 W. R., 911; 18 L. T., 572. 3. 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. & S., 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, LofiPt, 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. R., 341; 6 Esp., 63; Home v. Bentinck, 2 B. & B., 130; 4 Moore, 563; Oliver v. Bentinck, 3 Taunt., 456. 3, A magistrate commented severely on the conduct of a policeman which came under his judicial notice, and in consequence the policemam was dismissed from the force. Held, that no action lay. Kendillon v. Maltby, 2 M. & Rob., 488; Car. & Mar., 403 ; AUardice v. Robertson, 1 Dow